ARTICLE ON

TRANSFER OF PROPERTY ACT, 1882:

TRANSFER OF PROPERTY BY ONE CO-
OWNER

NIRBHAY GUPTA
 TRANSFER OF PROPERTY ACT: TRANSFER OF PROPERTY BY ONE CO-
OWNER

INTRODUCTION
By its very existence, society mandates interaction, exchange or transfer. Property is
transferred from one person to another by various means. Property can be inherited, or can be
bought by giving the full payment of it. Transfer of Property Act is an Indian Legislation that
govern the transfer of property in India. The Transfer of Property Act, 1882 mainly deals with
transfer of immovable property.

Property can be movable or immovable. The exchange of movable property between living
persons is governed by the Sales of Good Act, 1930 whereas the exchange of immovable
property between living persons is governed by the Transfer of Property Act, 1882.

HISTORICAL BACKGROUND

Before the formation of the Transfer of Property Act or Sales of Goods Act, the personal laws
governed the transfer of property in India. Transfer of movable goods was regulated to an
extent by the Indian Contract Act, 1872 whereas, in case of immovable property the courts
used the principles of Justice, Equity and Good Conscience as it prevailed in England at the
time. Of course the rapidly growing commerce and infrastructure in the late nineteenth century
lead to more conflicts even in business. Thus, an immediate need was felt for a clear and
pragmatic law regarding property and transfers suited to India and its peculiar problems as well
as to take care of the potential economic problems. The task of drafting such legislation fell
upon the First Law Commission and was later referred to the Second Law Commission.

TRANSFER OF PROPERTY BY ONE CO-OWNER (SECTION-44)

The term property in common parlance indicates the economic status of a person. Any property
is held by an individual to draw out benefit from it. Transfers are made by owners themselves,
ostensible owners and the co-owners or we can say joint owners. When two or more persons
enjoy common ownership of a property, for example say in a coparcenary, the male members
and now even daughters have a common and an equal interest in the ancestral property, any
co-owner can transfer his own share in the property to a stranger or another co-owner. And
that transferee steps in the shoes of the co-owner (transferor) and gets clothed with all his
assets and liabilities. We can say that the transferee becomes the co-owner. Section 44 of the
Transfer of Property Act, 1882, deals with transfers by one co-owner. It also deals with the
rights of a transferee in this type of a transaction.
Section 44 of Transfer of Property Act:
“Transfer by one co-owner.—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.”
In simple words, Section 44 of the Transfer of Property Act, 1882, deals with transfers by one
co-owner. It also deals with the rights of a transferee in this type of a transaction.
This section of Transfer of Property Act deals with rights and liabilities of a transferee from a co-
owner, as to the enjoyment of the property transferred. The property transferred should be
immovable. The first part of the section merely incorporates the principle that a person who
takes transfer from another, steps into the shoes of his transferor, and is clothed with all the
rights and becomes subject to all the liabilities of his transferor. In short, we can say that he
becomes as much a co-owner as his transferor was before the transfer. The second part of the
provision provides an exception to the general rule stated in the first part and is based on
convenience. It is designed to prevent an outsider from forcing his way into a dwelling house in
which other members of the transferors family have a right to live.

DEFINING CO-OWNER
A co-owner of a property in most cases is a member of the same family. In some cases, a co-
owner can be appointed by a will written in his favor. A co-owner may either own equal rights
to use the property like others or may have a portion of the property in his name.
In case there are 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. For example, if
three brothers inherit an ancestral property, all three will be co-owners of the property. If one
of them dies, the rights of his share of the property passes on to two surviving brothers or his
dependents. Under the law, a co-owner is entitled to three basic elements of ownership—right
to possession, right to use and right to dispose of the property.

COMPETENCY TO MAKE A TRANSFER

Section 7 of the Transfer of Property Act, 1882 provides that every person competent to
contract i.e. a major and of sound mind or is not disqualified by law for contracting. Therefore
even the interest of a co-owner or co-sharer can be sold, mortgaged, leased to another co-
sharer or to a stranger. The fact that the partition has not taken place by metes and bounds,
does not stand in the way of the interest of a co-owner.
According to the law prevailing in some areas, a coparcener of a Hindu Joint Family can alienate
his share in the Joint Family Property for consideration. Such a coparcener is a legally
competent person.
Also, where one co-owner is in exclusive possession of a plot of a joint land and lets it out to a
tenant without the consent of other co-sharer landlords, such a tenancy will not bind the latter.
The lease in such a case will only be confined to the interest and share of the lessor.

RIGHTS OF TRANSFEREE IN SUCH TRANSACTION

Basically this section deals with the rights of a transferee and also safeguards their rights. The
transferee steps into the shoes of his transferor i.e. the co-owner, and is clothed with all the
rights and becomes subject to all the liabilities of his transferor. In short, we can say that he
becomes as much a co-owner as his transferor was before the transfer Following Rights are
available to the transferee with regards to such transfer:

1) Right to joint possession

2) Right to peaceful possession
3) Right to make improvements
4) Right to enforce partition

EXCEPTIONS WITH RESPECT TO SECTION 44

Where a share in a dwelling house belonging to an undivided family is transferred to a stranger;
the transferee cannot claim joint possession or any common part or enjoyment of the house.
He can enforce his right over the property by a suit for partition. The principle underlying the
provision is that it is inequitable to permit a stranger to intrude himself upon the privacy of an
undivided family residence. Restriction contained in this part is applicable even if there is only
one male member of family in occupation of family dwelling house.
In order to grant relief under section 44 there should be two things satisfied
1) The property transferred should be a dwelling house
2) the transferee should not be a member of the family.
In the case of Durga v. Debidas, the members of the family were separated in mess and were
residing in different places. They stayed in the house in the village for attending kali pooja. The
house was otherwise used for collection of paddy. The court said that the stray use of the
property for a short residence for a specific purpose will not turn it into a dwelling house. There
must be ancestral dwelling in existence on the suit land. The members of the family must not
have abandoned the property.