Women get upper hand in property disputes
A resolution depends on the the kind of property held jointly and the ownership pattern
Oct 01, 2013
Source : Business Standard


DELHI: As chartered accountant Rana Shukla (name changed) and brother Raju Shukla were jointly running their late father's business, they acquired many properties together. Now, they are busy running from one law firm to another, evaluating the various options of splitting the business and properties they own jointly.

R N Gupta, managing partner of law firm S N Gupta and Company, is handling a similar case in which the client is paying a substantial amount of money as stamp duty and registration cost. "That's why we suggest it is always better to avoid owning properties jointly. Splitting it becomes complex," Gupta says.

And, in case the property owned jointly was bought on a joint loan, the problem is aggravated manifold. Or, if one of the joint owners passes away while holding a property jointly and the legal heirs become involved in the issue, there is little surety on when the matter would be resolved, Gupta cautions.

The issue or a resolution to it depends on many factors, such as the relationship between the joint owners of the property, the kind of property held jointly and the kind of owners who hold the property.

Matrimonial lawyer Mrunalini Deshmukh says the legal course for splitting a property held jointly depends on the share a joint owner has in the property. For instance, does the joint owner hold a stake, that is, did he/she pay a percentage of the cost of acquisition of the property? Or, was the name added merely for convenience. Or, was the property created in the name of the joint owner to be passed on to him/her in the event of death of the other owner?

Say a married couple that owns a property jointly wants to separate. "If the wife had also paid (a percentage of the cost of the house) at the time of buying the property, at the time of splitting she will have to be paid her share if the husband wants to keep the property. The wife will have to prepare a sale or gift deed in favour of the husband and move out of the ownership of the house. This deed will have to be a registered one, for which the wife will have to pay stamp duty as well," says Gupta.

Women have an upper hand when a couple split. So, it is likely the wife would secure the ownership of the house. As a result, she might have to pay the husband's share to him. Lawyers say often, though the wife earns more or is richer than the husband, she may still get an upper hand. If the joint property was bought on a joint home loan, the party moving out of the ownership would have to secure a no-objection certificate (NOC) from the bank showing he/she is no longer liable for the loan. Anil Harish, partner of law firm DM Harish and Company, says if A and B jointly own a property on a joint home loan and B decides to move out of the ownership by selling his/her share of the property to A, B would have to contact the bank and inform it of this. It is likely the bank would ensure the loan repayment wouldn't be affected by this, that is, A would be able to repay the loan. Only then would it issue an NOC to B.


For joint loans, if an owner stops repaying, the other is asked to repay the share of both parties. This may be through rental income from the property or by selling the property, depending on the severity of the case.

"If the property is held by the husband and the wife's name is added as a co-owner only for convenience, then, too, the wife has a right over the house - the right of residence in the matrimonial home. In this case, if the wife has to leave the matrimonial home, the husband would either have to pay rent to her every month for renting another house or pay a lump sum to buy another house. It depends on how they want to split," says Deshmukh.

In this case, the wife not only has half the right on the matrimonial home, but also a right in the husband's share of the property. As such, she has more rights over the matrimonial home, say law experts.

Say, a father buys a property in the name of his daughter. In this case, the daughter would retain her right over the property and can claim her stake. The case would be the same if the property was inherited by the father and the daughter had been named in it.

In such circumstances, women get more protection, Deshmukh says. In case of separation due to domestic violence, irrespective of whether a woman has stake or has been named in the property, she has the right of residence in the matrimonial home and the husband would have to pay for it.

Harish says the distribution of the property also depends on the type of property held - residential property where the joint owners are living, jointly held let-out property, jointly held vacant property, commercial property, a plot of land, etc. "If both parties stay in a residential property, either may sell his/her share to the other and get paid for it. Or, the parties could sell the property to a third party and share the proceeds according to the ownership pattern," says Harish.

Let-out properties need not be sold. Instead, the rent can be shared according to the ownership of the two parties. If the two parties hold a property that can be divided, such as an office with two rooms, both parties can get a room each. Similarly, a plot of land can be divided between two parties.




Types of property


* Residential property where joint owners live: One of the owners can sell his share to the other or sell the property and share the proceeds as per ownership

* Let-out property: Rent can be shared between the owners

* Vacant property: Sell and share the proceeds according to ownership pattern

* Plot of land & commercial property: These properties can be divided, like an office with two rooms can be divided into one room per owner, and so can a land parcel be divided


Pattern of joint owner

* Jointly bought the property: The owner moving out of the ownership will have to sell the property to the other by way of a registered sale deed

* Joint owner's name added for convenience: Between a husband and wife, the wife has a right over the matrimonial home. If she has to leave the home, the husband will have to pay her monthly rent for another house or a lump sum to buy another house. Even a daughter has rights over a property held with her parent(s)

* Asset created in the name of joint owner: Say, a father buys a property in the name of his daughter. In this case, the daughter would retain her right over the property and can claim her stake. The case would be the same if the property was inherited by the father and the daughter had been named in it

Latest Realty News

Abadi land lease starts in Greater Noida
Oct 01, 2013
DELHI: Greater Noida Authority has begun leasing back abadi land to farmers of 39 villages who had been disgruntled over acquisition for industrial development of the area. In the first phase, the Authority has handed back 82,000 sqm of abadi land to 37 farmers of Bisrakh village.
Alchemist buys land in Kolkata, to invest Rs 600 crore in project
Oct 01, 2013
DELHI: National capital-based realty firm Alchemist Township has bought about 20 acre land in Kolkata from a local builder Highland Group and will invest Rs 600 crore to develop a residential project.
Policy tinkering, hounding firms hit FDI in realty: Sharad Pawar to PM
Oct 01, 2013
DELHI: Expressing concern over dip in FDI in real estate, Agriculture Minister Sharad Pawar has shot off a letter to the Prime Minister stating that tinkering of policies and agencies hounding entities receiving foreign funds is creating negative sentiments.
Srajkund: Prices rising but limited jobs
Sep 30, 2013
DELHI: Of late, Surajkund has been hyped as an attractive alternative real estate destination on the Delhi-National Capital Region (NCR) map. Property prices in this location have seen an uptrend and this has evinced increasing interest from investors.
Court ruling to impact realty cos
Sep 30, 2013
DELHI: Real estate companies may come under renewed pressure after the Supreme Court delivered a big retrospective tax blow to real estate developers. Builders now have to pay 5 per cent value-added tax from June 2006 after the Apex Court upheld its judgment in the K Raheja case.
CCI to study financial sector for possible unfair practices
Sep 29, 2013
DELHI: To keep a tab on possible unfair practices, the Competition Commission of India has begun a study of functional aspects of the country's growing financial sector, including banking and insurance segments.
Not a great half year for malls
Sep 28, 2013
DELHI: Over a dozen mall projects were deferred in most major cities in the first half of 2013 when three malls, totalling 2.94 million sq. ft, entered the market, according to a retail report by Cushman & Wakefield.
Oberoi Realty’s share sale offer gets good response
Sep 28, 2013
DELHI: Oberoi Realty promoters’ offer to sell 1.14 crore shares through stock exchanges was subscribed 1.62 times, helping the company meet SEBI’s minimum public shareholding norm.
Land Acquisition Bill gets Presidential approval
Sep 28, 2013
DELHI: The Land Acquisition Bill, passed by Parliament during the Monsoon Session to replace a 119-year-old legislation, became a law with President Pranab Mukherjee giving assent to it today.
Strong investor interest for Unitech Gurgaon SEZ: Chairman Ramesh Chandra
Sep 27, 2013
DELHI: Realty firm Unitech has received strong investor interest from potential buyers for the sale of company's Special Economic Zone (SEZ) in Gurgaon, a top official said today.

Latest Realty News Of State

Realty Talk's