PROPERTY LAW -1 |1

NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

PROPERTY LAW-I

TOPIC: EFFECT OF TRANSFER BY ONE CO-OWNER

SUBMITTED TO : SUBMITTED BY:

Dr. SANJAY YADAV AMULYAUPADHYAY

ASSOCIATE PROFESSOR 2017BALLB126

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ACKNOWLEDGEMENT

I would like to express my gratitude towards Prof. (Dr.) Sanjay Yadav for assigning me such

a topic for research work and for helping me to go in furtherance with this topic. Without his

support this work could not be possible.

I would also like to thank my batch mates, seniors, friends and relatives for their valuable

support and guidance that helped me to reach on the conclusion.

Without the help all these people, this project would not have been possible and I would not

have been able to reach on the conclusion so here by, I acknowledge their helpful

contributions
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TABLE OF CONTENTS

ACKNOWLEDGEMENT.......................................................................................................2

SYNOPSIS................................................................................................................................4

INTRODUCTION....................................................................................................................6

WHO IS A CO-OWNER.........................................................................................................7

LEGAL COMPETENCY OF A CO-OWNER TO TRANSFER........................................9

SECTION 44...........................................................................................................................10

RIGHTS AND LIABILITIES OF TRANSFEREES AND CO-OWNERS......................12

CONCEPT OF DWELLING HOUSE.................................................................................14

INJUNCTIONS AGAINST TRANSFEREES.....................................................................16

SECTION 4 OF THE PARTITION ACT............................................................................16

CONCLUSION.......................................................................................................................17

BIBLIOGRAPHY..................................................................................................................18
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SYNOPSIS

STATEMENT OF PROBLEM

The main aim of this project is to find out how a transfer by a co-owner of joint property is
effected and the ambit of section 44 . The basic idea behind this project is to assess till what
extent can one’s interest in a particular property be transferred to another, especially if that
property is jointly owned. This also covers the concept of dwelling house and whether a
stranger can be put in the shoes of the transferor of a dwelling house.

RESEARCH QUESTIONS

 What are the Rights and liabilities of a transferee when the transferor is a joint owner
and the property is jointly owned?
 Are there any safeguards to the other joint owners in respect to this transfer ?

OBJECTIVES OF STUDY

 To study the types of co-ownership under the Transfer Of Property Act, 1882.
 To understand the process of transfer by a co-owner and the subsequent rights and
liabilities generated by such a transfer.
 To understand the application of section 44 of the Transfer Of Property Act,1882.

RESEARCH METHODOLOGY
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The methodology used in making this project is doctrinal. Methodology research includes
systematic method, collection of the facts. The project includes landmark cases analysis
relevant to this topic. Legal principles and legal provisions were also involved in study. Data
was collected from the secondary sources like newspaper, legal articles, internet, and relevant
books on this subject.

REVIEW OF LITERATURE

 Dr. Avatar Singh, the Transfer of Property Act, Universal Law Publishing - An

Imprint of LexisNexis; Fifth edition

Textbook on The Transfer of Property Act, is the most lucid and analytical study of
various sections of the Transfer of Property Act, 1881. The book is a section-wise
commentary explaining the concepts in detail with the help of illustrations and judicial
precedents. The text in the chapters is divided into headings and sub-headings which
make it easy for readers to understand and remember. At the end of these chapters, the
book has provided short notes, often asked questions as also some practical problems
along with their Solutions, with an object to render an exhaustive coverage of the
subject at hand. In this fifth edition, the case-law has been updated incorporating all
important judgments rendered by the Courts in India since the publication of the last
edition.
 Dr. Poonam Pradhan Saxena, Mulla: The Transfer Of Property Act, Lexis Nexis;

Third edition

Property Law presents a user-friendly treatment of a subject, students often find very
technical, dry and not easy to comprehend. The book is a section-wise, thematically
arranged coverage of the Transfer of Property Act, 1882.
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INTRODUCTION

Real Estate is an important area of public life owing to multifarious reasons ranging from
high commercial returns and imperative necessity of securing a dwelling house or raising
cash on the strength of immoveable assets. In such a scenario, the settlement of disputes
through judicial mechanisms becomes imperative that is evident from all the cases making
their way into courts every year. The principles statutorily recognized in the Transfer of
Property Act, 1882 aid in reducing disputes over such matters and are essentially principles
of justice, equity and good conscience. These principles underlying the various provisions of
the Act, particularly relating to mortgage and lease have been applied in areas where
otherwise the Act has not been made applicable.

Prior to the Transfer of Property Act,1882 there was no legislation regulating real estate in
India. With the coming of this Act various principles of the English property law were
merged with the native customs of the land, finally resulting into an Anglo-Indian legal
machinery for land laws. One such mixture was Section 44 of the Act which dealt with
transfer by one co-owner. Though in the English law joint owners meant individuals that
would come together and mutually consent to owning a share in a common property, it was
devoid of the classical Hindu concepts of coparcenary property, dwelling house and
especially a Joint Family. After observing such notions the section was constructed with a
special provision that would provide safeguard to such ideas namely the ‘dwelling house’
rule. The project aims at explaining the said rule and how the legal system has adopted the
same in the present context with the help of judicial precedents.
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WHO IS A CO-OWNER

There are three ways in which a person can own a particular property i.e., in their own name,
through joint ownership or through contractual rights. In a co-ownership the title of the
property is vested in two or more people at the same time and consequently a person becomes
a co-owner or someone who owns property with other people.1in the Indian law , a joint
owner by virtue of his title possesses the right of possession, enjoyment and disposal of
property. Here he has a right over the possession of property regardless of the shares that he
may possess.

Co-ownership can be categorized into the following types; joint tenancy with rights of
survivorship, tenancy in common and tenancy by entirety.

TENANTS IN COMMON- these are co-owners who own unequal fractional interests in a
property. So one co – owner can have a 25% share in the joint property while the other can
have 75%. Each of them can use the property according to their own satisfaction and the
consent of the other co-owners is not needed when one of them disposes off their own share.
Here it is important to note that, joint tenants are not subjected to the doctrine of survivorship
and that on their death the share of the property will pass accordingly through testamentary
succession or through intestate laws. The new owner will now be a tenant in common with
the others.

JOINT TENANCY - Joint tenancy is created when two or more persons purchase or are
given property at the same time. Each joint tenant owns an undivided interest in the whole
property, and each has the right to possess, occupy, enjoy, use, or rent the property. Unlike
the above category, this includes in it the right of survivorship. According to the right of
survivorship, when a holder of an undivided interest dies his interest is passed onto the
surviving interest holders and it isn’t passed on to the decedent’s estate. Another dissimilarity
between tenants in common and joint tenancy is that in the latter each joint tenant shall have
an equal interest over the joint property. There are four additional common law requirements
necessary in order to create a joint tenancy.

The four unities are

1
https://thelawdictionary.org/owner-joint/
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(1) Unity of time. The interests of the joint tenants must vest at the same time

(2) Unity of possession. The joint tenants must have undivided interests in the whole
property, not divided interests in separate parts

(3) Unity of title. The Joint tenants must derive their interest by the same instrument (e.g. a
deed or will)

(4) Unity of interest. Each joint tenant must have estates of the same type and same duration.
All four unities must exist. If one unity is missing at any time during the joint tenancy, the
type of co-ownership automatically changes to a tenancy in common. A joint tenancy may be
created by a will or deed but may never be created by intestacy because there has to be an
instrument expressing joint tenancy. A joint tenancy is freely transferable

TENANCY BY ENTIRETY – this type of ownership was initiated in order to protect the
rights of married couples. In this a spouse owning the property by virtue of being a tenant-by-
entirety cannot sell or dispose of the property without the other’s consent. It is the same as
joint tenancy and in addition to the four unities another fifth is that of marriage. It also
includes within it the right of survivorship.

LEGAL COMPETENCY OF A CO-OWNER TO TRANSFER

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According to Section 7 of the transfer of Property Act,1882 a person is only competent to

transfer, if he fulfils the following requisites;

 When he is competent to contract i.e., under Section 11 which states that a person is
competent contract if they are a major according to their respective personal law
and of sound mind and is not disqualified from contracting by any law to which he
is subject.

 When he has a title to the particular interest in the property which he proposes to
transfer. The Latin maxim of nemo dat quad non habet applies which literally
translates as "no one gives what they don't have". This means that a person who
does not possess a good title to a property cannot transfer a better title to the
transferee. For example- A person who has claimed the property by fraud or undue
influence would not be able to effect a valid transfer of property.

Therefore, if the co-owners fulfil the above conditions, then their interest in a property can be
transferred even if it is jointly owned. When applied to a Joint Hindu Family, the question of
whether partition by meets and bounds has taken place doesn’t stand. In Ramdayal v
Manaulal 2, the High Court of Madhya Pradesh while delivering its judgement held that ,
according to the Mitakshara law applicable in Madhya Pradesh , a coparcener can alienate for
the value of his undivided interest in coparcenary property without the consent of the
coparcener. But he cannot, before alienation, alienate any property as his own as a coparcener
cannot claim any such property as his own separate property. 3

2
AIR 1973 MP 222
3
Maharu v Dhansai, AIR 1992 MP 220
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SECTION 44

Section 44 of the Transfer Of Property Act , 1882 deals with the transfer of property by one
co-owner, wherein it states that

Where one of two or more co-owners of immoveable property legally competent in that behalf
transfers his share of such property or any interest therein, the transferee acquires as to such share or
interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint
possession or other common or part enjoyment of the property, and to enforce a partition of the same,
but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so
transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is
not a member of the family, nothing in this section shall be deemed to entitle him to joint possession
or other common or part enjoyment of the house.

The principle of this section is that of substitution. To simply put it, when one of the co-
owners to a joint property transfers his share to another person, the latter stands in the shoes
of the former and acquires against the co-owner the same rights as the transferor once had.

In the latter part, the section enters into the domain of family law and provides a protection to
co-parceners in case of a dwelling house. It states that where a property is that of a dwelling
nature and is jointly owned by two or more co-parceners, the sale by one co-parcener without
partition would be improper even if the boundaries were clearly demarcated in the sale deed.4
To draw parallels, this part basically includes joint tenants and their right as property holders.
It can be considered as an exception to the above mentioned rule.

INGREDIENTS

In order to invoke section 44 , following conditions must be satisfied;

1. Transfer shall made by a person who at the time of the transfer was a co-
owner of the said property.
2. The property must be jointly owned.
3. The Transferee at the time of the transfer should not be a member of the joint
family of the transferor.

4
Anjan Barman Choudhary v Ranjan Barman Choudhary AIR 2013 Gau 42
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4. The property transferred must not be the dwelling house of the family.
5. With the transfer, the transferor shall vest all such rights and liabilities that he
had as a co-owner and the transferee shall take up the same.

Breach of any of the above mentioned conditions would result in the application of the above
section. An important point that should be stated is that this section is not affected by the
personal laws of the parties namely the different laws applied to different coparcenary all
around the country. They are saved by the phrase “subject to the conditions and liabilities
affecting, at the date of the transfer, the share or interest so transferred”.

The situation of partition by the transferee is not mentioned in this section. Rather Section 4
of the Partition Act,1893 lays down the rules for the same. Under this section a stranger who
is also the holder of the joint property may be compelled by the other co-owners in the family
to relinquish his right of partition in exchange for pecuniary compensation.
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RIGHTS AND LIABILITIES OF TRANSFEREES AND CO-

OWNERS

Section 44 puts the transferee into the shoes of the transferor and imputes on him all the
benefits and responsibilities that the transferor had with respect to the joint property, prior to
its transfer. Over time India has seen various shifts regarding these, some rights drastically
shifting from that provided under the classical laws. Mentioned below are the rights and
liabilities;

GENERAL APPLICATION

In the case of Udaynath v Ratnakar5 it was held that this section shall apply to all transferees
; irrespective of whether they are the plaintiff or the defendant. The section also applies to
transfer of mortgages and sales; however , such a transfer shall be effected after a partition in
case of a mortgage.6

RIGHT OF POSSESSION

One of the most basic of rights, the transferee has ,like every other co-owner, propriety rights.
The transferee of a co-sharer acquires rights of his transferor so far as is necessary to give
effect to the transfer and not beyond that. By virtue of the title vested upon him, he gets the
right of ownership possession and enjoyment of the property. In the leading case of Lalita
James v Ajith Kumar7 the Madhya Pradesh High Court held that Section 44 assured the
transferee the right to common enjoyment and joint possession but it did not confer any
exclusive possession without effecting a partition first.

RIGHT OF PEACEFUL POSSESSION

A transferee is entitled to a peaceful possession of the property without any incumbrances or

hindrance. In the case of Muthu v Ammalu 8 the court held that, if a co sharer has an
exclusive possession over any portion of an undivided holding and that possession does not
5
AIR 1967 Ori 139
6
Hariharayyar v Ahammadunni (1940) 51 Mad LW 511
7
AIR 1991 MP 15 p17
8
AIR 1993 Ker 272
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exceed his own share in the holding , then this possession cannot be disturbed until partition
and the same will apply to the transferee.

RIGHT TO IMPROVEMENTS

A salient feature of a jointly owned property is that each co-owner is allowed to make such
an improvements which would benefit the property and won’t be in detriment to the other
owners. But in order to erect a construction a partition by metes and bounds shall first take
place. The same was stated in Om Prakash v Chhajju Ram 9 wherein the court considered
that all joint owners are holders of every inch of the joint property until a partition by metes
and bounds takes place.

RIGHT TO ENFORCE PARTITION

The right to ask and enforce partition is inherent with every co-ownership. The demand for
partition can be from a lessee , mortgagee or even a life tenant. The lessee can only maintain
a suit for partition if such a suit is necessary for effecting a lease. 10The demand will only be
rejected on the grounds of partition.

ADDITIONAL RIGHTS

Though the section does not specifically mention rights and liabilities of the property holders,
judicial decisions overtime have helped to establish a more clear position on the same. A
person purchasing a share of tenancy rights is not eligible for a declaration of title for
exclusive possession of the property.11 A transferor who is not in the actual physical
/exclusive possession of his share property cannot transfer a better title to the transferee
because of the application of nemo dat quad non habet . In such a case the transferee of such
a transferor can claim for compensation.

9
AIR 1992 P&H 219, p 221
10
Muhammad Jaffer v Mazhar-ul-ashan (1960) 3 All LJ 474
11
Bolaram v Dondiram AIR 1950 Ass 1
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CONCEPT OF DWELLING HOUSE

Black’s Law Dictionary describes dwelling house as, “ the house in which a man lives with
his family; a residence ;the apartment or building, or group of buildings, occupied by a family
as a place of residence. In conveyancing, it includes all buildings attached to or connected
with the house.12

It is the house in which a man dwells. Even if there is an absence of the dwellers from the
house for a temporary period, they always have the right of animus revertendi which
translates as “intention to return” . Animus revertendi is a kind of property ownership which
may apply to a dwelling house.

Section 44 of the Act makes a provision regarding this and states that basically a transferee
of a share of a dwelling house cannot be made a joint owner if he is not a part of the Hindu
Joint Family residing in that particular house.13This provision was made so as to protect the
rights of the Family, as they are protected from the interference of a stranger in the personal
matters of the family. The latter can get a remedy in the form of a suit of partition after which
the transferor can directly transfer his share of the property to the transferee. According to CJ
Westropp in Balaji v Ganesh14, such a procedure, of making a stranger a party in the
dwelling house of the Hindu Joint Family, would only be inconvenient and lead to breaches
of peace.

Basically where a co-owner sells his share to a non-member of the family, then the latter can
only stake a claim over the said property after a partition by metes and bounds has taken
place and has to seek an order from court or make a settlement with co-owners/family
members who haven’t transferred their shares. 15

In a decision of Madhya Pradesh High Court, it was held that where a house was occupied by
permanent residents but not used as a residential complex and rather used for commercial
purposes it will not constitute as a dwelling house under section 44, and the transferee will be
a valid co-owner of the property. 16

12
2 Hil. Real Prop. 33S
13
Bulu Sarkhal v Kali Prasad Basu AIR 2012
14
(1881) ILR Bom 499
15
Sunil Gupta v Nargis Khanna 2012 IAD (Delhi) 277
16
Hafizulla Sheikh Barakatullah v Puran Chand Jain AIR 2017(NOC) 1086 (MP)
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This section, however, has no application to a dwelling house a part of which is occupied by
strangers after a partition.17 The provision is of a negative nature. It surely affords a defence
to the members of a joint family , but doesn’t create a positive right in them. It gives courts
the discretion to grant relief. 18

17
Bhim Singh v Ratnakar AIR1971 Ori 198
18
Jugendra Nath v Adheed Chandra (1951) 55 Cal WN 589
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INJUNCTIONS AGAINST TRANSFEREES

Once it is establishes by the plaintiff family members that they are liable for the remedy
under the second part of section 44 and the stranger transferee’s purchases are liable to be
restrained, it will follow that even if the transferee was made a joint owner by the transferor,
they can be removed with the help of an injunction. To this the transferee has the remedy of
partition but until then he is obliged to stay out of the property in lieu of the injunction issued
against him.

The Apex court in Dorab Cowasji Warden v Coomi Sorab Warden 19 stated that where the
purchasers were inducted into the property in a clandestine and hurried manner, leaving no
time for the members to go to court for an appropriate remedy, an order of injunction
becomes necessary. Denying such injunction against a transferee would cause irreparable
damage to the family members.

SECTION 4 OF THE PARTITION ACT

The Partition Act, 1893 gives the co-sharer the option of buying out the transferee at a
valuation to be made by the court. So a member of the family has not transferred his share
may purchase the transferee’s share when the transferee files a suit for partition.20 It has also
been held that the term “dwelling house” with respect to the Partition Act, also includes
buildings adjacent to it, curtilages, courtyards and all that is necessary to the convenient
occupation of the house. 21 The Supreme Court in Gautam Paul v Debi Rani Paul22 states
that except section 4 of the Partition Act,1893 , there is no other law that let’s a co-sharer buy
the shares of a transferee after a partition has been effected and the share of one of the co-
sharers has been sold. This is often a counter-remedy to the remedy of a transferee getting the
partitioned share.

19
AIR 1990 SC 867, p 878
20
Ram v Ram kishan AIR 2010 ALL 125
21
Sunil Gupta v Nargis Khanna 2012 IAD
22
(2000)8 SCC 330
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CONCLUSION

The above analysis hence answers the hypothesis taken up for the project and describes the

extent to which a co-owner and his transferee are liable during a transaction regarding a joint

property. Section 44 governs the transactions made by co-owner to individuals which have a

new interest in the joint property. It puts the transferee in the shoes of the previous owner and

hence he is liable towards the property and other joint owners in the same way as once the

former was. The second part of the section provides safeguards to the family members of a

dwelling house and bars the entrance of the stranger transferee in the family property.

Though the former part includes all kind of co-ownerships within its ambit the latter part only

talks about joint ownerships of Hindu Undivided Families which ensue the doctrine of

survivorship. This section along with section 4 of the Partition Act,1893 is to protect families

from interference of 3rd party elements with regard to their personal matters and to protect

their privacy which may be threatened by individuals driven by malice. Though the section

describes most of the rights of a family but not of a transferee. The Indian Judiciary has time

and again tried to clarify the remedies possessed by the transferee in such situations. The

transferee can wait until the partition of the property and then legally receive his share or the

same can be ordered by court when a suit maybe filed. The whole of Transfer of Property

Act,1893works on the principle of equity and fairness in transactions relating to property and

Section 44 is no different. It provides for equal rights and liabilities of the transferor and

transferee in all situations.

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BIBLIOGRAPHY

BOOKS

 Dr. Avatar Singh, the Transfer of Property Act, Universal Law Publishing - An

Imprint of LexisNexis; Fifth edition

 Dr. Poonam Pradhan Saxena, Mulla: The Transfer Of Property Act, Lexis Nexis;

Third edition

 The Transfer Of Property Act,1882

WEBSITES

https://indiankanoon.org

http://www.ebc-india.com

http://www.manupatrafast.in/