Regarding release deed
Thangamadhan
(Querist) 24 March 2013
This query is : Resolved
Dear friends,
I want to clarify a doubt regarding a joint property in which the chitta is by three co - owners. where the type of co-ownership has not been specified. My father, myself and my maternal uncle are co-owners of it, Is it possible for my father to release a portion of the property approximately a third without getting my maternal uncle's consent or signature to my name, Since my uncle is not planning to release the property. And can I get it register the property in my name after that.Will there be any legal complications after that? Advice needed. Thanks
Advocate M.Bhadra
(Expert) 24 March 2013
Who Is A Co-Owner ?
Ownership consists of innumerable number of claims, liberties, powers with regard to the thing owned. Ownership is of different kinds. There are absolute and limited, sole ownership, co-ownership, vested ownership, contingent ownership, corporeal, incorporeal. When a person owns a property in one time it is called sole ownership, but if the property is owned by more than one person then it is called joint ownership. By means of partition one can have co-ownership changed into sole ownership.
The expression co-owner is wide enough to include all kinds of ownership such as joint tenancy, Tenancy in common, Coparcenary, membership of undivided Hindu family, etc. The very fact of the reference to the property that the parties have certain shares, indicates that they are co-owners.
In Indian Law a co-owner is entitled to three essentials of ownership-
# Right to possession
# Right to enjoy
# Right to dispose
Therefore, if a co-owner is deprived of his property, he has a right to be put back in possession. Such a co-owner has an interest in every portion of the property and has a right irrespective of his quantity of share, to be in possession jointly with others. This is also called joint-ownership.
When Is A Co-Owner Legally Competent To Make A Transfer ?
Section 7 of the Transfer of Property Act, 1882 provides that every person competent to contract i.e. a major and of sound mind or is not disqualified by law for contracting. Therefore even the interest of a co-owner or co-sharer can be sold, mortgaged, leased to another co-sharer or to a stranger. The fact that the partition has not taken place by metes and bounds , does not stand in the way of the interest of a co-owner.
According to the law prevailing in some areas, a coparcener of a Hindu Joint Family can alienate his share in the Joint Family Property for consideration. Such a coparcener is a legally competent person. But in some cases of Mitakshara coparcenary, the consent of other coparceners is required before any such transfer.
Devajyoti Barman
(Expert) 24 March 2013
Any of the co-owner can at any point of time release or extinguish his share in favour of other co-sharer.
He even can transfer his undivided share in the name of third party.
In both the cases he needs to execute and register the deed n payment of stamp duty.
R.K Nanda
(Expert) 24 March 2013
no more to add.
