SY.

LLB – A

Roll No. 58
Name: Shekhar Atul Panse
Subject: Property Law
Topic: Transfer by co-owner and joint transfer for
consideration under Transfer Of Property Act, 1882.
 Transfer by co-owner and joint transfer for consideration
under Transfer Of Property Act, 1882

Introduction:

The term property in common parlance indicates the economic status of a person. Any
property is held by an individual to draw out benefits 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 in a coparcener, 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:

Transfer by one co-owner.—Where one of two or more co-owners of immovable 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 co-owner can sell or transfer his portion
only when he has exclusive rights to that portion of the property. If the exclusive rights are
not entitled to each co-owner, such transfer of rights cannot take place without the consent
of other joint co-owners.

Pt. Brij Raj Tripathi V. Km. Malti Devi And Another (dead) by Lrs. & others Vs.
Samson Claudus and others, 2005 (23 LCD) 472)
Section 44 of the Transfer of Property Act, contemplates a transfer of share in immovable
property. It deals with the share of a co-owner who is legally competent to transfer his
share. The transferee acquires the transferor's right to joint possession or other common or
part enjoyment of the property and a right to enforce partition of the share or interest so
transferred at the date of transfer. The second part of Section 44 is quite clear. It dis-entitles
a transferee of a share in a dwelling house belonging to an undivided family to joint
possession or other common or part enjoyment of the house. It is a restriction on the rights
of such a transferee to joint possession.

Therefore in a suit brought under Section 44 of the Transfer of Property Act, the Courts
have to record findings on questions as to whether:

a) The immovable property is owned by two or more co-owners.

b) The transferor of share is legally competent to transfer his share.

c) The right of the transferee to enforce partition and thereafter right to joint possession.

d) The transferee is a stranger to the family.

The Courts have also to record a finding on the questions under the second part of Section
44 and if it is a dwelling house belonging to an undivided family then such a stranger
transferee is not entitled to joint possession unless it is partitioned. (after section 44 from the
first link and the above pasted paragraph)

In Baldev Singh v. Darshani Devi it was held by the Court that a co-owner who is not in
actual physical possession over a parcel of land cannot transfer a valid title of that portion
of the property (after the above content)

Section 45:

Joint transfer for consideration.—Where immoveable property is transferred for

consideration to two or more persons and such consideration is paid out of a fund
belonging to them in common, they are, in the absence of a contract to the contrary,
respectively entitled to interests in such property identical, as nearly as may be, with the
interests to which they were respectively entitled in the fund; and, where such consideration
is paid out of separate funds belonging to them respectively, they are, in the absence of a
contract to the contrary, respectively entitled to interests in such property in proportion to
the shares of the consideration which they respectively advanced. In the absence of
evidence as to the interests in the fund to which they were respectively entitled, or as to the
shares which they respectively advanced, such persons shall be presumed to be equally
interested in the property. If the property is jointly owned by any person then consent of
both the person is needed, no person can sell the flat without the consent of the other
owner.

Rajeshwari v. Balchand Jain

Facts: Members of Hindu Joint family residing in a house and carrying on business of the
family. Here no partition had taken place. Plot of land was purchased and the source of
money appeared to ‘joint earnings.

Decision: Court held that presumption of equality is not there, so section 45 is not attracted.
Here the court observed there is no presumption about property that it is a joint family
property. Then Burden of proof lies on the person who is asserting it to be joint property.

Section 45 deals merely with the quantum of interest and its determination where there are
several joint purchasers of immovable property. In this context it doesn’t provide for the
method of creating common ownership that means several so-owners can’t exist.

Section 47 :

Transfer by co-owners of shares in common property.—Where several co-owners of

immovable property transfer a share therein without specifying that the transfer is to take
effect on any particular share or shares of the transferors, the transfer, as among such
transferors, takes effect on such shares equally where the shares were equal, and, where
they were unequal, proportionately to the extent of such shares.
Section 47 incorporates such a concept where several co-owners transfer without
specifying then the share of each co-owner is reduced proportionately. This section is thus
helpful in ascertaining the shares of the co-owners in the property retained after the transfer.
This section is an application of the principle of equity that equality is equity.

As this section helps by predicting a possible difference in quantum of the interests of the
co-owners, it is clear that it deals with tenants in common.

In Mir Ali Nawaj v. Mir Ali Asghar, two zamindars had equal shares in a property, one
holding absolute interests and the other, life interest only. Half of the entire property was
transferred by them. On the death of a life interest holder his heir sued for partition. Court
held that the vendee had taken 1/4th from each Zamindar so that the heirs were entitled to
1/4th only.

Conclusion

After having research, researchers can conclude that 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, the 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 a
transferee who happens to be a 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 a 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 been 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.
References:

https://www.legalserviceindia.com/articles/plaw.htm

https://indiankanoon.org/doc/515323/

https://www.ijlmh.com/paper/transfer-by-co-owner-under-the-transfer-of-property-act-an-an
alysis/