These questions are manifestations of the concepts of property know as “joint tenancy” and “tenancy-in-common”. They are marked by distinct features. Property held as joint tenancy passes on the death of one joint tenant, by survivorship. Among tenants-in-common, it passes by succession. Even among Hindus a joint gift or bequest creates tenancy-in-common. (Principles of Hindu Law Sir D.F Mulla, Fourteenth Edition, Pge 471).
Joint tenancy can be created by the joint tenants at the same time, usually through a deed. For example, an unmarried couple purchases a house. At the time of purchase, the real estate agent asks the couple how they want to own the home. If they opt for joint tenancy, the deed to the property will then name the two owners as joint tenants. Then if one person dies, the other person will automatically become the full owner of the property.When a property is owned by joint tenants, the interest of a deceased owner automatically gets transferred to the remaining surviving owners. A joint tenancy can be broken if one of the tenants transfers or sells his or her interest to another person, thus changing the ownership arrangement to a tenancy in common for all parties
It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased-tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased-tenant. In other words, the heirs succeed to the tenancy as joint tenants.
In the case of coparceners of a Joint Hindu Family governed by the Mitakshara School of Hindu Law, persons inheriting a property, take the same as tenants-in-common and not as joint tenants. There is also no doubt that the estate of a lessee or a monthly tenancy is property within the meaning of Section 19 of the Hindu Succession Act. The defendants, therefore, inherited the property, namely, the monthly tenancy of their predecessor-in-interest as tenants-in-common and not as joint tenants. Section 19 of the Hindu Succession Act, 1956 states inter alia, that if two or more heirs succeed together with a property of an intestate, they should take the property save as otherwise expressly provided in the Act, per capita and not per stirpes and as tenant-in-common and not as joint tenants.
In this context, the general provisions relating to Hindu succession envisaged in the Hindu Succession Act, 1956 has significance. Section 19(b) of the said Act provides as under:
“if two or more heirs succeed together to the property of an intestate, they shall take the property , as tenants in common and not as joint-tenants”.
joint tenancy is, that it connotes unity to title, possession, interest and commencement of title but in a case of tenancy-in-common or co-tenancy, there may be unity of possession and commencement of title, but the other two features would be absent. The Allahabad High Court in its Full Bench decision in the case of Ram Awalamb v. Jata Sankar, (FB) has explained such differences between joint tenancy and tenancy-in-common or co-tenancy in a very lucid way in paragraph 41 at pages 534-535 of the said decision in the following manner:
“41. ……. …….. …….. ……..
According to Halsbury’s Laws of England (Vol. 32, page 332) joint tenants are those who form one body of ownership. Each tenant has an identical interest in the whole land and every part of it. The title of each arises by the same act. The interest of each is the same in extent, nature and duration. Thus joint tenancy connotes four ideas — unity of title, unity of possession, unity of interest and unity of commencement of title. In a tenancy-in-common also there may be unity of possession and where title is derived from a common sale deed or by inheritance from one person it might very well commence at one and the same time. However, other ingredients which would be the main ingredients of the joint tenancy would be missing.”
Supreme Court itself in the case of Syed Shah Gulam Ghouse Mohiuddin v. Syed Shah Ahmad Mohiuddin Kamisul Qadri, . In paragraph 12 at page 2188 of its said decision, the Supreme Court observed inter alia, as follows :–
“…….. The estate of a deceased Mohammedan devolves on his heirs at the moment of his death. The heirs succeed to the estate as tenants-in-common in specific shares. Where the heirs continue to hold the estate as tenants-in-common without dividing it and one of them subsequently brings a suit for recovery of the share the period of limitation for the suit does not run against him from the date of the death of the deceased but from the date of express ouster or denial of title and Article 144 of Schedule-I to the Limitation Act, 1908 would be the relevant Article.”
Tenancy rights are property rights, therefore, the same has been the subject of inheritance and rent control laws. Fundamentally, the legal relationship of the landlord and tenant are regulated and controlled by the specific statue such as the Rent Control Act. If the tenant or landlord dies intestate, the rights and obligations of the landlord and tenant, respectively, shall be governed by the provisions of Rent Control Act being a special statute. Moreover, if the special statute does not provide the method and manner in which the right of survivorship or devolution with respect to the legal heirs of landlord or tenant, as the case may be; naturally, then the provisions of Succession Act would be applicable, depending on the religion of the landlord or tenant.
H.C. Pandey v. G.C. Paul, 1989 SC 1470. Therefore, the observations and reports in H.C. Pandey (Supra) are important which reads as under:
“It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidences of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefore. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants.
