Transfer by co-owner under transfer

of property act

I. Introduction
Here the term property in general way indicates the economic status of a person. Such property is held
by any person to take out benefit from it. There are various ways in order to transfer property from
one person to another like it can be inherited, can be bought by giving the full payment of it. And in
India law governing transfer of property under the rules of Transfer of Property Act, 1882. This act is
an Indian legislation which governs all rules and procedures regarding transfer of property. Various
types of property are as movable, immovable, corporeal and incorporeal etc. Transfer of movable
property mainly governed    by the sales of Good Act, 1930 whereas in case of immovable which is in
between living persons is governed by the Transfer of Property Act, 1882.

In general way transfers are made by owners themselves, ostensible owners and the co-owners or
Joint owners. For example, in case of Coparcenary where two or more persons enjoy common
ownership and enjoyment of property like all Coparcener including all male members and now even
daughters have a common and an equal interest in the ancestral property, so any co-owner can transfer
his interest in the share of property to any stranger or may be another co-owner. And after this that
transferee steps in the shoes of the co-owner (transferor) and gets clothes with all his liabilities. Hence
that transferee becomes new co-owner. Section 44 to 47 of transfer of property act, 1882 deals with
aspect of transfer by co-owners, section 44 which specifies about transfer by one co-owner and the
rights of a transferee in case of this type of property. The second part of this section lays down an
exception to this rule. The object of this exception is to prevent a stranger from claiming a joint
possession of a family of dwelling house.  The terms Co-owner states where co-owner may be either
joint tenant or tenant in common under English law.

Section 45 deals with the question as to what quantum of interest each one of the several transfers
under a transfer gets in the property transferred. When a Transfer for consideration is made to two or
more persons jointly, they will become co-owners transferred their interest. It lays down a
presumption as to the quantity of interest taken by co-owners who have paid consideration for
acquisition. Section 46 deals with the question as to what interest each of the several joint transferors
gets in the consideration for the transfer.

Section 47 which lay down principle regarding transfer of property by co-owners of share in common
property, in which effect of transfer is to reduce their shares proportionately. It refers to tenancy-in
common and this section helps while ascertaining the shares of co-owners.

Through this paper, the researcher has specifically dealt with the concept of transfer by co-owners and
subsequently in the light of rights and liabilities of transferee and also the exception rule which
embodied under section 44 of this act. This paper also dealt the intricacies related to the same in the
light of different judicial interpretations given time to time by different courts.

Defining Co-Owners
 In general way Co-Owner of a property in most cases is a member of the same family. In other way
Co- Owner can be appointed by a will written in his favour. Every Co- Owner may either own equal
rights to use the property like others or may have a portion of the property in his name. There is
situation where more than two Co-Owners of the same property and one of the Co-Owners dies, his
share automatically passes to his dependents or to other Co-Owners.[2] E.g., an ancestral property is
inherited by three brothers, and these three will be Co-Owners of the property. In case one of them
dies, then his share of the property passes on to two surviving brothers or may be his dependents
along with rights.  Co-Owner is entitled to three basic elements of Ownership under the Law:

 Right to possession

 Right to use, and

 Right to dispose of the Property.

KINDS OF OWNERSHIP UNDER CO-OWNERS

The word ‘Ownership’ consists of innumerable number of rights, liberties and powers with regard to
thing owned. It has different kinds of Ownership as absolute, limited, sole ownership, co ownership,
vested ownership, contingent ownership, Corporeal and incorporeal. When in case where a person
owns a property in one time it is called sole ownership, whereas such property is owned by more than
one person then in that case it is called as Joint ownership. But here Co ownership can turn into sole
ownership by means of partition.
As the word ‘Co-Owner’ is wide enough to cover all kinds of ownership such as Joint tenancy,
Tenancy in common, Coparcenaries, undivided Hindu family members, etc. Here the fact that
regarding property that the parties have certain shares, indicates that they are Co-Owners. A Co-
Owner is entitled to three essentials of ownership under Indian Law- Right to possession, enjoy and to
dispose. Hence, in case a Co-Owner is deprived of his property, he has a right to put back in
possession. In this aspect such co-owner has an interest in every part of property and has a right
irrespective of his quantity of share, to be in possession jointly with others. This is also called joint-
ownership.
Here these are the following types of co-ownership:

Tenants in Common: In this aspect co-ownership is not specifically stated and each tenant in
common has a separate fractional interest on whole property. Though each tenant in common has a
separate interest in that property and possess and use the entire property. It may hold unequal interest
in the property but the interest possessed by each tenant in common is a fractional interest in the entire
property. So, each tenant in common may freely transfer their interest in the property.[3] Here
Tenants in common don’t have right of survivorship. Hence after death of any tenant in common their
interest passes via will or through intestate laws to another person who will become new tenants in
common with the surviving co-owners.

Joint Tenants: In this aspect it has right of survivorship. That means after death of one joint tenant
his share/interest immediately passes to the surviving joint tenants and not to the decedents. It
basically holds a unitary interest on whole property. Here each Joint tenant must have equal share in
the property. There are certain features of Joint tenancy that is also the requirements of joint tenancy
are as follows:
 Unity of possession- each tenant is entitled to the possession and enjoyment of whole land.
 Unity of Interest- Each joint tenant has same type estates and same duration.
 Unity of time- joint tenancy interest must vest at the same time.
 Unity of title- Interest of joint tenancy must derive by the same instrument like will or deed.
In case if any one fails to perform their part, then joint tenants automatically convert into tenants in
common.
Joint tenancy implies unity in titles as well as unity of possession whereas Tenants in common
signifies only the unity of possession. In case of Joint tenancy co-owners hold property upon the death
of any of them his interest goes to the survivors but in tenants in common after death shares goes to
his heir or representatives. Both concepts are of English Law. Except in case of Coparcenary between
members of a Hindu Undivided Family, the concepts of Joint tenancy are unknown in India.[4]

Tenancy by the Entirely: This concept of co-ownership is for Husband and wife. It provides right of
survivorship. It requires all four unites like unity of time, possession, title and Interest and also fifth
unity of marriage. Tenancy by entirely does not allow spouse to convey his interest to third party
whereas one spouse can convey his interest to another spouse. It may be terminated by divorce, death
or mutual agreement by both spouses.

Transfer by one co-owner

In such a case where a property is jointly owned by two or more persons and each co-owner may have
equal or unequal shares, but until partition is affected and their respective shares are separately
possessed, every co-owner is entitled to common enjoyment of property.  Section 44 of the Transfer
of Property Act, 1882 deals with aspect of transfer by one co-owner, further it also provides the rights
of transferee such type of transaction.

The principle of this section is that where a co-owner transfers his shares, the transferee is substituted
in place of transferor. It substitutes in the property to the extent of share transferred to him. Here
transferee too is entitled to common enjoyment of the joint property together with other Co-owners.
Such transferee steps into the shoes of the transferor. It means transferee will acquire all the rights and
liabilities which the co-owner [transferor] has in that Joint property at the date of transfer.

The object of this section as well as Section 4 of partition act 1893 is to keep off strangers who may
purchase the undivided share of a co-sharer of an immovable property, so far as dwelling houses are
concerned to make it possible for a co-sharer who has not sold his share to buy off the stranger
purchaser.[5]

This section assures the transferee the right to joint possession or common enjoyment of the property,
but does not confer on him any right to exclusive possession without enforcing partition.[6]

Legal competency to make transfer by co-owner

The word “legally competent” is in paragraph 2 of section 44 of transfer of property act can be study
with respect to Section 7 of the transfer of property Act, 1882 states that every person competent to
contract that means a major and of sound mind or is not disqualified by law for contracting. Hence
even the interest of a co-owner can be transferred, mortgaged, leased to another co-sharer or to a
stranger. Here the fact that partition has not taken place by metes and bounds does not stand in the
way of the interest of a co-owner.

As per law prevails in some areas, a coparcener of a Hindu Joint family can alienate his share in the
Joint family property for consideration [Section 45]. In that case such Coparcener is a legally
competent person whereas in case of Mitakshara coparcenary, the consent of other coparcener is
requiredbefore any such transfer. In other cases where one co-owner is in exclusive possession of a
joint land plot lets it out to a tenant without the consent of co-sharer landlords, such a tenancy will not
bind the latter. In such a case the Lease will only be confined to the interest and share of the lesssor.
In case Baldev Singh v. Darshan Devi[8] where a co-owner who is not in actual physical possession
over parcel of land cannot transfer a valid title of that portion of the property. Here the remedy
available to the transferee would be to get a share out from the property allotted after the partition or
to get a decree for joint possession or can claim compensation from the co-owner.

In case Rukmani and others v. H.N.T. Chettiar[9] where a co-sharer cannot be allowed to cause

prejudice to the other co-shares by putting up a substantial construction during the pendency of a suit
for partition filed by the other co-shares.

A case of Punjab and Haryana high Court Hazara Singh v. Faqiria[10]where a co-owner contention
that he had, by adverse possession, a peaceful undisturbed possession by the other co-owners had
become the sole owner of a land, held that the possession of a co-owner is possession of all the co-
owners. It cannot be averse to them unless there is a denial of their right to knowledge by the person
in possession. If a co-sharer is in possession of the entire property, his possession cannot be deemed
to be adverse he possesses the property on behalf of all others.     

V. Rights and liabilities of transfree

As per section 44 of transfer of property act which also deals with the rights of a transferee and also
safeguards their rights. Here the transferee steps into the shoes of his transferor that means the Co-
Owner and further is clothed with all the rights and become subject to all the liabilities of his
transferor. It basically becomes as much a co-owner as his transferor was before the transfer.

Here the Transferee from a co-owner acquires rights like i.) a right to Joint possession of the
property[11] ii.) a right to enforce partition as against other co-owners[12]. Other rights include right
to make improvements and right to peaceful possession.

Right to Joint Possession: Each Co-owner has proprietary right in whole estate. Here transferee
becomes the co-owner and getting all rights like joint possession in property except a dwelling house.
In case where a co-owner or his transferee is ousted from joint possession, then he is entitled to get
joint possession by a suit, and not necessary forced to sue for partition.

Right to peaceful possession: Here co-owner transfers his separate plot and transferee gets
possession on that remaining part of co-owner, his transferee cannot be disturbed by the other co-
owners until and unless a final partition takes place. So, a tenant of a land who derives his title from
all co-owners cannot be disturbed by one co-owner without consent of all.

Right to make Improvements: In order to make construction on any part of land, co-owners can
make out and he is allowed to do so. Whereas he is not entitled to do construct on any other portion of
joint property or to the detriment of others co-owners.

Right to enforce Partition: As in every case of Joint partnership, each party has a right to demand
partition that means a right to be placed in a position to enjoy his own right separately without any
interference and interruption. As this section 44 applies all transfer including sales and mortgages or
lease. Here a lessee of an undivided share can maintain a suit for partition[13], a mortgagee[14] and
even a life tenant is entitled to seek partition subject to condition that it gives effect to the transfer.
Now a monthly tenant was also allowed to enforce a partition there was no probability of the lease
being determined.[15] In a suit for partition there must be unity of possession and unity of title[16]. A
claim for partition can be refused on the ground of inconvenience[17] after fulfilling conditions.

In case of Partial partition that prevents the working out of equities between the co-owners is not
maintainable. The purchaser of a co-owner’s share in one particular item of property can file a suit for
recovery of that share in the item without filing a suit for general partition.[18]
 Role of dwelling house and undivided family

This concept basically is an exception to the rule provided in the first part of section 44 of transfer of
property act, 1882. Any co-owned property in which family members of the co-owners are living
together where co-owner has right to transfer his share but transferee is not entitled to have common
enjoyment or joint possession of the property.[28] Section 44 says that the co-owners right to joint
possession, other common or part enjoyment of the property transferred will not be available to the
transferee where such property is a dwelling house belonging to an undivided family and such
transferee is not the member of that family. He only gets the share in a residential house belonging to
a family member of a joint family not entitled to joint possession.

Object of this exception: This exception has been created in order to avoid inconvenience which may
be caused by substitution of a stranger in joint family who may be of different caste, religion etc.

In the words of Westropp C.J., in Bombay case[29], “We deem it a far safer practice, and less likely
to cause serious breaches of peace, to leave a purchaser to a suit for partition, than to place him by
force in joint possession with the members of a Hindu family, who may be not be of different caste
for his own, but also different in race and religion.’’

Here restriction contained in this section for stranger is applicable even in that case also where there is
only one male member of family in occupation of family dwelling house.

For granting relief under section 44 of transfer of property act, 1882 there must be two things
satisfied:

1. The property should be a Dwelling house

2. The transferee should not be member of the family

Here transferee’s (stranger) right to have the house partitioned is, subject to Section 4 of the Partition
Act, 1893. Where this section provides stranger to claim partition by metes and bounds may be
compelled, at the option of the other members of the family to forego his legal right to partition and
accept pecuniary compensation. The Partition act 1893, gives the coo-sharer the option of buying out
the transferee at a valuation to be made by the court.[30]

Dwelling house:  Taking the reference to the partition act, 1893 the term ‘Dwelling house’ means not
only residential structure or building but it includes all the adjacent buildings, gardens, cartilage,
Court yard, orchard and all which are necessary for the convenient use of the house.[31]

In case the dwelling house does not belong to an undivided family, section 44 of the transfer of
property act, 1882 is not applicable.[32]  Here the word ‘undivided family’ in Section 44 is not
limited to Hindus, but includes such group of people related in Blood who live in one house under one
head, and that it applies if they are undivided qua the dwelling house which they own.[33]  In this a
co-owner transfers his shares by way of sale, lease, gift or mortgage, section 44 will be applicable.
But partition is necessary to give effect to the mortgage if the transfer is in nature of mortgage and in
case of lease where lessee of an undivided share too has right of partition.

In a case where, a share of a house is transferred by way of lease which is used by all members of
family then the lessee must get his part partitioned. Further if transferee is unable to get his part
partitioned then in that case other co-owner may have right to restraint the lessee from getting
possession of the house with others. In case Ashim Ranjan Das v. Bimal Ghosh[34] a house was in
common enjoyment for Hindu undivided family members where a co-sharer leased out his share
without effecting partition then after this the stranger lessee (tenant) attempted to enter into possession
jointly with members of family. In which court held that interim injunction restraining the stranger
lessee can be granted.

However, in case of Delhi High Court where ‘A’ entered into premises followed by his mother and
brother who joined him later on and the government first granted licence and subsequently executed
lease in his favour. Court held that A’s (lessee) mother and brother were not co-tenants and A was
entitled to the possession of the whole premises including the portion of his mother and brother. It
was observed by the court further that filing of suit by A for possession of portion which is in his
mother and brother’s possession did not means that ‘A’ was not the lessee of the whole promises.[35]

 Such house characterized as a dwelling-house belonging to undivided family is not altered by the
mere fact that an undivided share is transferred to a stranger who comes into possession and collects
rents from the portion of the tenants.[36]

This section affords defence to the members of a joint family but it does not create a positive right in
them.

Effect of Partition Act, 1983: Section 4 of this act plays a vital role in transfer by co-owner and to
give rights and liabilities. Object of this section 4 of this act is to keep off strangers who may purchase
the undivided share of a co-sharer of an immovable property, so far as dwelling houses are concerned
to make it possible for a co- sharer who has not sold his share to buy off the stranger purchaser.[37]

Concept of joint transfers

Concept of Joint transfer aspect deal in section 45-46 of transfer of property act, 1882. Such transfer
for consideration to two or more persons jointly makes them co-owners of the property. In case the
consideration is paid out of a common fund their shares would be same as their interest in common
fund.

Section 45 which deals with quantum of interest of each transferee and its determination, where there
are several joint purchasers of immovable property. This section is not applicable to gifts and bequests
but applicable to involuntary transfers and revenue sales. As per this section 45 which is made
applicable to the involuntary transfer on the ground of justice, equity and good conscience.
[39] Presumption of equality is there in that case where absence of any evidence to be contrary, then
shall be presumed to be equally interested in the property. this section does not specify about property
shares like whether they take as joint tenants or tenants in common, should be determined by
reference to their personal law.

Section 46 which lays down that the transferors of property entitled to share in the consideration as
per their respective interests in the property transferred. Hence, this section is the converse of section
45, due to the concept of transfer by persons with distinct interests. Thus, it basically deals with the
question as to what interests each of the several joint transferors gets in the consideration for the
transfer.

Judicial approach
Dorab Cawasji Warden v. Coomi Sorab Warden[41]

Facts: a property was purchased by father and mother of Plaintiff. Later on mother became died then
appellant and his father became joint owner of the entire property. Further they converted joint
tenancy into a tenancy in common. Later on father transfer his undivided share into the property to his
another son. Hence the appellant and his brother became tenant in common in respect of the property
but on the death of the brother, his widow and two minor sons sold their undivided share in the
property. The appellant instituted a suit against his brother’s wife and children on the ground that the
suit property was a dwelling-house belonging to an undivided family wherein they all lived in their
respective portions. Here after sale, the buyer had no right to live as a tenant in common with the
appellant.

Decision: the court held that this transfer would come under the other second paragraph of section 44;
therefore, the buyer has no right to live in dwelling house. Here court also observed that irreparable
injury is likely to be caused by the entry of transferee and balance of convenience was in favour of
appellant, interim injunction against vendors and vendees regarding possession can be issued.

Here basically happens a particular part of share is transferred without partition and the transferee
does not maintain suit for partition whereas attempts to take possession of his share, then in that case
other co-owners may restraint that person from taking possession. Section 44 second paragraph which
lays down exception rule for transfer of co-owners under this act, the object of this part is basically to
avoid inconvenience for other co-owners which may be caused by substitution of a stranger. That
stranger may be from different caste, religion and race, and then other co-owners of transferor’s
family have a right to live in dwelling house.

Conclusion

After having research, researcher can conclude as transfer by co-owners means the transferee steps
into the shoes of his transferor and is clothed with all the rights and liabilities of his transferor. So,
transferee becomes as much a co-owner as his transferor was before the transfer. However, there is an
exception to this rule which states that transferee happens to be stranger can’t claim for joint
possession of a family dwelling house unless and until partition happens. Here the term ‘co-owner’
means either a joint tenant or tenant in common under English law. Joint transfer where property is
transferred to two or more persons without specifying their respective shares and consideration is paid
as common fund or may be advanced separately. Transfer by co-owners of share in common property
which says transfer of shares without specifying from common property the transfer has made, and
then the share of each co-owner is reduced proportionately. This is also an application of the
principles of equity that equality is equity.
 Apart from this researcher can conclude as the exception provide under section 44 in respect of
dwelling house is to avoid inconvenience from stranger transferee who may not only of a different
caste but also of different race and religion.