Alternate Dispute Resolution Method in Pakistan

The relevant laws (or particular provisions) dealing with the ADR are summarized as under:

·          The Arbitration Act, 1940.

·         Articles 153–154 of the Constitution of Pakistan, 1973 (Council of Common Interest)

·         Article 156 of the Constitution of Pakistan, 1973 (National Economic Council)

·         Article 160 of the Constitution of Pakistan, 1973 (National Finance Commission)

·         Article 184 of the Constitution of Pakistan, 1973 (Original Jurisdiction when federal or provincial governments are at dispute with one another)

·         Sections 102–106 of the Local Government Ordinance, 2001.

·         Sections 10 and 12 of the Family Courts Act, 1964.

Arbitration in Pakistan:

Although no explicit mention of ADR is mentioned in the Constitution of Pakistan, a reference to commercial and financial activities can be pinpointed in the Constitution.

Pakistan has also signed and ratified the New York Convention. The New York Convention is also known as the New York Convention of 1958 and the Convention for the Recognition and Enforcement of Foreign Arbitral Awards. UNCITRAL is a Commission of the UN established by the General Assembly on 17 December 1966 by Resolution 2205 (XXI). Thus, although the New York Convention was adopted in 1958, the Commission’s essential mandate is to promote the Convention further. Furthermore, UNCITRAL serves as the International Trade Law Branch of the Office of Legal Affairs of the UN. Hence, UNCITRAL, under the umbrella of the UN, is the biggest organizational body to prepare rules relating to ADR, namely arbitration and conciliation.

Arbitration in Pakistan is still largely governed by the 1940 Act which was enacted by the British for the undivided Indian colony. Though Pakistan has signed the NYC, the enforceability of foreign arbitral awards is unclear as the NYC has not been implemented. The first attempt to implement the NYC was made in 2005, when the new Arbitration Act was passed as an Ordinance (along with an Ordinance to implement the ICSID Convention in 2006, which is now the Investment Disputes Act) almost 50 years after they signed on the NYC.

Pakistan Engineering Council Islamabad:

PEC Rules of Conciliation and Arbitration is one such document prepared by a team of experts comprising Employers, Constructors and Consultants and Legal Advisors in line with the advice by Planning Commission, Govt. of Pakistan. It is expected that use of this document will provide an equitable and just basis for settlement of disputes pertaining to construction and consultancy contracts expeditiously.

The Rules specified in the this document shall be applicable for all construction  and engineering services (consultancy) contracts to be executed in Pakistan irrespective of their source of financing and/or nationality of the constructors/consultants (engineering service providers).

Any dispute, controversy or claim arising out of or relating to a Contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in  accordance with the PEC rules of Arbitration in-force.

This indicates that there are a number of institutions which are working as an institution for conciliation. And this gives a reference that as contrary to Indian laws, in Pakistan, there is a specific requirement that parties referring to conciliation and the institution will be mentioned in the contract.

Recent Initiatives regarding ADR in Pakistan:

·         Code of Civil Procedure (CPC) which is the primary procedural law for civil matters in Pakistan, has been amended (under AJP) for providing enabling mechanism for Court Annexed ADR in Pakistan (Section 89-A).

·         Small Claims and Minor Offences Ordinance 2002 has been promulgated for providing exclusive forum (at the district level) for facilitating the resolution of smaller disputes. This law also provides ADR mechanism for facilitating the resolution and settlement of disputes within the framework of the formal court system. This could be transformed into an excellent forum for addressing disputes in the emerging justice sector in Pakistan;

·         Under the Access to Justice Program, the review of Arbitration Act represents a significant policy action. This review needs to be undertaken and capacity building initiatives put in place to promote effective arbitration regime in Pakistan.

·         A new local government system has been introduced in Pakistan, establishing elected local governments at the level of Union Council, Tehsil (Sub District Level) and the District level. The institution of Musalihat Anjuman (literally meaning conciliation forums) has been provided at the level of Union Councils for dispute resolution through ADR (including conciliation, mediation and arbitration). The finalization of the rules of Business for these bodies is essential to popularize the use of ADR.

In WAPDA v. Kot Addu Power Company[1] – Provisions of section 290 of the Companies Ordinance, 1984 vested statutory jurisdiction in High Court to take certain measures described there and ordered to resolve dispute inter-se shareholders or directors of a company – High Court dismissed the petition made under section 3 of the Arbitration (Protocol & Convention) Act, 1937 for reference of the dispute under the Act of 1937.

Pakistan has entered into Bilateral Investment Treaties with 36 countries which include dispute settlement mechanism between the host country and foreign investor, failing this through mutual consultations, where after the investor can refer the dispute to a competent court of the respective country or an ad-hoc arbitration panel established under rules of the UN Commission on International Trade Law (UNCITRAL) or to the Court of Arbitration of Paris International Chamber of Commerce (ICC). These mechanisms provide transparent, inexpensive, speedy and accessible dispute resolution to foreign investors. The International Center for the Settlement of Investment Disputes (ICSID) also provides facilities for conciliation and arbitration of investment disputes between contracting states and nationals of other states under the Convention for the Settlement of Investment Disputes and Pakistan is a member of the Center.

The Conciliation Courts (West Pakistan Amendment) Ordinance, 1966:

An Ordinance further to amend the Conciliation Courts Ordinance, 1961, in its application to the Province of West Pakistan.“(2-A)   Cases relating to matters falling under Section A of Part I and Section A of Part II of the Schedule, against any Government servant, shall be excluded from conciliation except where a certificate is granted by Government or an officer authorised by Government in that behalf to the effect that the Government servant had not acted in the discharge of his official duties”.

Alternative Dispute Resolution mechanisms and Arbitration provide alternate to litigation by avoiding lengthy and costly proceedings. They are best suited for commercial disputes as the relationship between the parties is expected not to suffer after exhausting such methods and the parties are more likely to settle their differences in a relaxed and friendly manner. In Pakistan, a more frequent use of such methods poses numerous problems which can be overcome by a collective effort by the Government, Judiciary and the Bar Councils.

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[1] 2002 MLD 829

Passing off, Extended Forms of Passing off and Reverse Passing Off

Passing off

This means doing business by presenting goods or services as someone else's, where the products may be of the same standard or be of substandard. The tort is known as "passing off". For most of the Commonwealth countries, "palming off" in the USA and unfair competition elsewhere. Passing off is a judge made law. In some countries they have incorporated a kind of passing off in their legislation as a type of infringement. There is an international obligation to assure effective protection against unfair competition under art 10 bis of the Paris Convention.

Classic Trinity Test:

The Honourable courts have developed a classic test to identify the tort of Passing off.

# In Reckitt & Colman Products Ltd. v Borden Inc [1990] RPC 341, it was held that: A claim may be bought:

	· The claimant’s goods or services have acquired a goodwill or reputation in the market and are known by some distinguishing feature;
	· There is a misrepresentation by the defendant (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by the defendant are goods or services of the claimant; and
	· The claimant has suffered, or is likely to suffer, damage as a result of the erroneous belief engendered by the defendant’s misrepresentation. # In Consorzio del Prosciutto di Parma v Marks & Spencer [1990] FSR 530, famously Known As The classical trinity, as the Parma ham case; In this case Court confirmed the three test as been laid down in Reckitt & colman case.Court also affirmed the stand as observed in the Pub Squash case (Cadbury Schweppes Pty Ltd. & ors. v. Pub Squash Co. Pty Ltd. (1981) RPC 429), the tort of passing off is no longer confined to early 19th century formulation, i.e. to the name or trademark or a product or a business. It is now recognised that the tort can encompass other descriptive material, such as slogans or visual images or advertisement campaigns that imply an association with the plaintiff's product, provided always that such descriptive material has become part of the goodwill of the product. The Ambit of passing of has been increased as been interpreted in famous “champagne case”. # In Cadila Healthcare Limited vs Cadila Pharmaceuticals Limited, 2001, In this case Court laid down several points which needs to be considered for action of passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity: · The nature of the marks i.e. whether the marks are word marks or label marks or composite marks, i.e. both words and label works. · The degree of resembleness between the marks, phonetically similar and hence similar in idea. · The nature of the goods in respect of which they are used as trade marks. · The similarity in the nature, character and performance of the goods of the rival traders. · The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods. · The mode of purchasing the goods or placing orders for the goods and · Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks. Court also held that weightage of various factors need to be considered on case to case basic. A fixed criteria on each factor cannot solve the purpose. Every case should be dealt on case to case basic, but court must consider these criteria in mind before considering the case for passing off. # In AG Spalding & Bros v A W Gamage Ltd and the later cases make it possible to identify five characteristics which must be present in order to create a valid cause of action for passing off: (1) a misrepresentation (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate consumers of goods or services supplied by him, (4) which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence) and (5) Which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in a quia timet action) will probably do so. # In Bristol Conservatories Ltd v Conservatories Custom Built Ltd the defendants’ salesmen showed prospective customers a portfolio of photographs of ornamental conservatories as if constituting a sample of the defendants’ goods and workmanship. In fact these were photographs of the plaintiff’ ornamental conservatories. This was held to amount to passing-off as the defendants had misrepresented that they were the commercial source of those conservatories. By showing the photographs to prospective customers goodwill arose towards the supplier of those conservatories and was simultaneously misappropriated by the defendants. [This case might be considered as reverse passing off also] # In John Henderson & Sons v Alexander Munro, In that case the defendant had issued circulars and claimed that a certain Mr Munro had experience in drilling artesian wells. However the circular did not state that Mr Munro had drilled the wells whilst working as managing director of the plaintiff’s company, not the defendants’. The Scottish House of Lords held that this amounted to passing off. # The landmark passing off case J Bollinger v The Costa Brava Wine Co Ltd (Spanish Champagne) created 'extended passing off'. This enables a class of traders to prevent rivals from incorrectly applying descriptive terms. While the class cannot prevent rivals applying the term correctly, they can prevent its incorrect application. Other cases about products made in geographical areas followed, for example Scotch Blended Whiskey, and Spanish Sherry. It was widely believed that extended passing off required the plaintiff to prove that consumers associated the disputed term with a particular location. “The usual remedies are injunctions, delivery up of offending items and inquiries as to damages or accounts of profits”.

Extended Forms of Passing off

The extended forms of passing off are one kind of passing off. These basic principles have been refined over the years to protect appellations of origin, such as Swiss chocolate.

In the most famous Case, The UK’s biggest vodka supplier, Diageo, has succeeded in an action against the manufacturers of VODKAT, Intercontinental Brands, on the basis of “extended” passing off. VODKAT is a mixture of vodka and fermented alcohol, and has 22.5% of alcohol by volume (ABV).

“Extended” passing off applies where:

A) A particular sign has obtained some distinctiveness in relation to goods of a particular quality;

B) Goods not having that quality are sold under that sign (or a confusingly similar one); and,

C) Any business having goodwill from dealing properly in those goods under that sign has, or is likely to, suffer damage.

In this case, Court considered that the term “vodka” denotes a clearly defined class of goods (i.e. clear and substantially flavourless spirits with at least 37.5% ABV), having sufficient reputation to give rise to protectable goodwill. It was held that there is an assumption among consumers, retailers and wholesalers that VODKAT and vodka are the same thing, which was considered to be exacerbated by the nature of VODKAT's labelling and marketing. This was considered to amount to the misrepresentation of VODKAT as vodka, rather than a drink containing vodka, leading to the deception of consumers.

“The decision puts vodka in the same class of protectable product descriptions as champagne, sherry, Scotch whisky, and Swiss chocolate.”

# In Erwen Warnick B V vs. J Townend & Sons (Advocaat) the House of Lords dispelled that popular conception by preventing incorrect application of the descriptive term 'Advocaat', which was associated with specific ingredients rather than a geographical location. Thus extended passing off protects use of a descriptive term associated with a distinctive and recognisable product; geographical association is not required.

Reverse Passing Off

“A wrongdoer commits the tort of ‘reverse passing off’ when ‘the producer misrepresents someone else's goods or services as his own.’ That is, ‘X’ copies ‘Y's’ work without permission and claims it as ‘X's’ own.’ Or in other words when X puts his Mark, logo or sticker, on the product of “Y” which goes to prove that the product is of “X”, it is considered as reverse passing off. In this case actually the wrongdoer is not producing any new product and selling it in order to hamper the goodwill and reputation of others and to secure benefit. Basically he is using others product, by just giving it his name or brand, so the customer gets to know that it’s his product. In other words we can say that he is not creating any substandard product, but he is selling the product of same standard as of original one. Sometimes removing the label or removing the label and putting any other label is also considered as reverse passing off.

# In Bristol Conservatories Ltd. v Conservatories Custom built [1989] RPC 455), Court held that when defendant claims the claimant's work as his own; it can be condered as a case of reverse passing off.

# In Roberts Powers School v Tessensohn [1995] FSR 947), It will be recalled that orthodox passing off entails the defendant representing that his product is the plaintiff's product.

In many cases, reverse passing off can be explained under the ordinary rules: for example where a defendant may represent that he or she made goods which were in fact made by the plaintiff so as to pass off his own business as a branch of the plaintiff's. The classic example of passing off takes place when one trader represents his goods to be those of another trader with a better reputation. However modern cases show that passing off is also possible when one trader represents the inverse: that the goods of another trader are his own.

Reverse Passing off in China:

This is the first case in China about trademark reverse passing-off. On May 1994, a dealer of Singapore Crocodile bought some western-style garment with trademark “Maple Leaf” from Beijing Garment Factory with unit price RMB 230. Then it removed the logo of “Maple Leaf” and replaced it with the trademark “Crocodile” and resold to customers with unit price RMB 560 at Beijing Parkson Shopping Center. This was found by Beijing Garment Factory and a lawsuit was filed. The court finally recognized as unfair competition and the defendant was ordered to stop the infringement and liable to pay compensation.

After this case, China revised its trademark law in 2001 and reverse passing-off was officially listed as a type of trademark infringement.

If a person, without permission of the trademark holder, replaces the trademark with another one and resells the product in the market, his behavior may infringe the trademark right of the holder. To be simple, trademark reverse passing-off means a person buys another one’s goods, removes the trademark on the goods and replaces it with his trademark. And then he resells the goods to customer.

Following features for trademark reverse passing-off:

· The trademark infringed shall be a registered trademark. That is, the trademark must be registered;

· The product is acquired in a legal way. It may be manufactured or sold by the trademark holder;

· The purpose for reverse passing-off is to make use of the good quality reputation of other person’s product and therefore to make illegal profit by disguising the true source of the product.

" If goodwill, misrepresentation and damage can be proved an action will lie regardless of whether the wrongdoing was intended and there is no threats action to protect those accused of passing off from intimidation of their customers."

The Concept of Fair Rent: IT Perspective

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Fair Rent is the municipal valuation of the accommodation, or rent which a similar accommodation would realize in the same locality, whichever is higher. However, it cannot exceed the standard rent, if any, fixed or determine under a Rent Control Act. If the employer hires the accommodation, Fair Rent Value is the actual rent paid for the accommodation.

It has been observed in Raval & Co. v. K.G. Ramchandran, (MANU/SC/0416/1973) relevant at page 326 para 25 (end) that it was most realistic to peg fair rent to the level of rents prevailing during the previous 12 months.

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From an Income-Tax (“IT”) Perspective

The IT Act, 1961, while levying tax on immovable properties, takes into consideration the fair value of the immovable properties. The IT law insofar as income from house property is concerned revolves round the concept of fair rent. Tax is levied on the basis of the fair rent which is supposed to be the prevailing rent for an identical property in the same locality. However, one has to pay tax on the actual rent if it exceeds the fair rent. The fair rent according to the IT Act is “the sum for which the property might reasonably be expected to be let from year to year.”

The apex court's admonition in a couple of cases that where standard rent has been fixed under the rent control law, the fair rent cannot exceed the standard rent has somewhat checked the vagueness of the explanation mentioned above, but giving rise to further questions as to how is the fair rent determined in a scenario where there is no standard rent? The confusion is not unjustified since not all States have rent-control laws and even where there is one; it does not target all cities and towns in a State. In the absence of a mechanism or an authority to fix the fair rent, an assessee could and often does face considerable harassment.

Laws Related to violence against Women & Punishments

Law on Molestation

Section 354 of IPC: An assault or use of criminal force with intent to outrage the modesty of any women shall be punished with imprisonment up to two years or fine or both.

Law on eve teasing

Section 509 of IPC: Word, gesture or act intended to insult the modesty of a woman

Section 294 of IPC: Whoever, to the annoyance of others,

(a) Does any obscene act in any public place, or

(b) Sings, recites or utters any obscene songs, ballad or words, in or near any public place,

[Shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.]

Rape

Rape is an offence not against the individual but like all crimes in the IPC, it is a crime against state.

Section 375of IPC : A man is said to commit "rape" who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions:—

First.—against her will, Secondly.—without her consent. Thirdly.—with her consent, when her consent has been obtained by putting her in fear of death, or of hurt. Fourthly.—with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.—With or without her consent, when she is under {The original word "ten" has successively been amended by Acts 10 of 1891, 29 of 1925 and Act 42 of 1949, s.3, to read as above} [sixteen] years of age.

Section 376 of IPC:  Punishment for rape:

         Punishment: Minimum 10 yrs, or up to life imprisonment and fine

Unless the woman raped is his own wife and is not less than twelve years of age, in which case he shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Section 376 A of IPC: Whoever has sexual intercourse with his wife, who is living separately from him under a decree of separation or under any custom or usage without her consent.

{Punishment: shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine}

Section 376 B of IPC: Whoever, being a public servant, takes advantage of his official position and induces or seduces any woman, who is in his custody as such public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape.

{Punishment: shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine}

Section 376 C of IPC: Whoever, being the superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children's institution takes advantage of his official position and induces or seduces any female inmate of such jail, remand home, place or institution to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape.

Explanation 1. -"Superintendent" in relation to jail, remand home or other place of custody or a women's or children's institution included a person holding any other office in such jail, remand home, place or institution by virtue of which he can exercise any authority or control over its inmates.

Explanation 2. - The expression "women's or children's institution" shall have the same meaning as in Explanation 2 to sub-section (2) of section 376.]

{Punishment: shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine}

Section 376 D of IPC: Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his position and has sexual intercourse with any woman in that hospital, such sexual intercourse not amounting to the offence of rape.

{Punishment:  shall be punished with imprisonment of either description for term which may extend to five years and shall also be liable to fine}

Section 377 of IPC: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal.

Explanation. -Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

{Punishment: shall be punished with [imprisonment for life], or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine}

Section 511 of IPC: Attempts to commit rape

{ Punishment: for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both.}

Section 109 of IPC: Aiding or abetting Rape

{Punishment: Imprisonment for life and Fine}

Section 34 of IPC: Common intension (Gang rape)

When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

{Punishment: Imprisonment for life or Fine or both}

Section 201 of IPC: Causing disappearance of evidence of offence, or giving false information to screen offender.

{Punishment: Imprisonment for seven years and fine}

Section 354 of IPC: Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty.

{Punishment: shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.}

Section 509 of IPC: Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, of that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman.

{Punishment: shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.}

Section 366 of IPC: Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse.

[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid]

{Punishment: shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 366 A of IPC: Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person.

{Punishment: shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.}

Section 366 B of IPC: Whoever imports into [India] from any country outside India [or from the State of Jammu and Kashmir] any girl under the age of twenty-one years with intent that she may be, or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person.

{Punishment: shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine}

Section 372 of IPC: Whoever sells, lets to hire, or otherwise disposes of any [person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be] employed or used for any such purpose.

{Punishment: shall be punished with imprisonment of either description for a term which may extend to ten years, and shall be liable to fine}.

Section 373 of IPC: Whoever buys, hires or otherwise obtains possession of any [person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, of knowing it to be likely that such person will at any age be] employed or used for any purpose.

{Punishment: shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine}.

Tenancy in Common & Joint Tenancy

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Tenancy in Common 

Tenants in common share equal property rights except that, upon the death of a tenant in common, that share does not go to the surviving tenants but is transferred to the estate of the deceased tenant meaning that there is no right of survivorship. It is passed to their legal heirs. Tenants in common of an item property may own equal or unequal shares, sometimes expressed in percentages. Each tenant in common may sell his share to another.

“Each tenant in common has a distinct share in property which has not yet been divided among co-tenants. Thus tenants in common have quite separate interests. The only fact which brings them into co-ownership is that they both have shares in a single property which has not yet been divided among them. While the tenancy in common lasts, no one can say which of them owns any particular parcel of land.

The size of each (co-tenant's) share is fixed once and for all and is not affected by the death of one of his companions. When a tenant in common dies, his interest passes under his will or intestacy, for his undivided share is his to dispose of as he wishes.”[1]

For instance X and Y acquire real estate as equal tenants in common, each having furnished one half of the purchase price. Upon B’s prior death, his one half interest in the property passes to his estate or heirs.

Another feature of tenancy in common is that all owners are allowed to use the whole of the property in common with all tenants in common since they hold the property together by several and distinct titles, but by unity of possession.

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Joint Tenancy

In joint tenancy, two or more persons are equally owners of some property. The share of a joint tenant who dies goes to the surviving joint tenants until there is but a single survivor, at which time the sole survivor owns the whole unlike tenants in common where when such a property owner dies, his share goes to his estate. This is the unique aspect of joint tenancy that as the joint tenancy owners die, their shares accrue to the surviving owner(s) so that, eventually, the entire share is held by one person.

A valid joint tenancy is said to require the "four unities":

a)      unity of interest (each joint tenant must have an equal interest including equality of duration and extent);

b)     unity of title (the interests must arise from the same document),

c)      unity of possession (each joint tenant must have an equal right to occupy the entire property); and

d)     unity of time: the interests of the joint tenants must arise at the same time;

Indian Courts strongly leans against holding any particular ownership as joint tenancy. The presumption is always in favour of a tenancy-in-common[2].

Since in case of death of each joint tenant, his (or her) interest goes to the remaining joint tenant and by the passing deaths of all but one joint tenant, the title is finally unified with the last survivor by the “right of survivorship”. This characteristic prevents an interest held in joint tenancy from being conveyed by will.

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For instance if A, B and C acquire real estate as joint tenants, each one is entitled equally to the rights accruing out of the property. Upon B’s prior death, his one third interest in the property instead of passing to his estate or heirs as is the case in tenancy-in-common will pass on to A and C and subsequently upon C’s prior death, his one half interest in the property will pass on to A by his right of survivorship. 

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[1] Megarry, R., The Law of Real Property (London: Sweet & Maxwell, 2000, 6th Edition), page 481.

[2] Venkatakrishna v. Satyavati; AIR 1968 SC 751