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Dhiraj Solanki   03 August 2024

Joint tenancy with right of survivorship in gift deed.

The owner of the Flat residing in Mumbai wants to prepare a Gift Deed in favour of his nephew to Gift 50% of his Flat ownership and make his nephew joint owner of the Flat so that both the individuals have equal ownership rights. However the owner also wants to ensure that after his death the remaining 50% ownership of the Flat automatically passes to his nephew and no other legal heirs have a claim and that nephew becomes absolute owner of the Flat after the death of his uncle.

Can we prepare the Gift Deed in such a way adding necessary clauses, terms and conditions and relevant paragraphs to incorporate "Joint Tenancy with right of survivorship" so that after the death of Flat owner the Flat gets transferred to joint owner(nephew) by default and the nephew do not have to apply for Succession Certificate/letter of administration to get the Flat transferon his name.

The flat owner and the nephew are not interested to make any Will because the legal process to get probate is cumbersome, lenghty, expensive and any legal heir can challenge the Will which will lead to unnecessary litigations and prolong things, waste money.

In Western countries, the concept of "Joint Tenancy with right of survivorship" and "Tenancy in common" is quite popular and many properties are brought applying Joint Tenancy with right of survivorship clauses entered in agreements.



Learning

 1 Replies

T. Kalaiselvan, Advocate (Advocate)     03 August 2024

creating and registering a gift deed is a legal process that requires careful drafting, execution, and registration of the document. It is important to follow all the legal requirements and procedures to ensure that the transfer of ownership of the property is legal and valid. 

in joint tenancy, if an owner passes away, their rights to the property automatically go to the co-owner, or in case of more than one owner, get divided between them. The provision that makes it possible is called the right of survivorship.

It allows each owner to have equal rights to the property. People come together at the same time to acquire the property and will have a common deed between them that proclaims their right to it. As a result, they get equal rights to the property and the profit obtained from the property is equally divided between them.

However, an important aspect of joint tenancy is the fact that none of the owners has a specific share in the property. If there are just two owners and when one passes away, survivorship is applied, and the ownership of the property is handed over to the surviving owner. 

The gifted poortion of property becomes the absolute property of the donee hence the donor do not have any rights in the part property that has been transferred to the donee by a gift deed, therefore there is no qustion of joint tenancy or tenancy in common for two different properties. 


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