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Introduction:
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.
In my project I have dealt with the following topics-
#
Who is a co-owner
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What are the rights and liabilities of a transferee under this
section
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Can a co-owner make a transfer without the consent of other
co-owners
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What is a dwelling house and undivided family for the purpose of
this section.
I have also dealt with various case laws.
For the purpose of better understanding I have divided the project
in
parts.
EXPLANATION OF SECTION 44 TPA, 1882
( With reference to Section 4 of the Partition Act, 1893)
Section 44 says -
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, so far as is necessary to give effect to the transfer,
the transferors 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.
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 ( should be immovable for this section). 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. But the remedy is to claim partition. When we read the section there are some terms which we need to
understand like-
Who is a co-owner ?
Legal Competency of a Co-owner to Transfer ?
Rights and liabilities of a transferee from a Co-owner ?
What is a dwelling house and Undivided family ?
Who Is A Co-Owner ?
Ownership consists of innumerable number of claims, liberties,
powers
with regard to the thing owned. Ownership is of different kinds.
There
are absolute and limited, sole ownership, co-ownership, vested
ownership, contingent ownership, corporeal, incorporeal.
When a person owns a property in one time it is called sole
ownership,
but if the property is owned by more than one person then it is
called
joint ownership. By means of partition one can have co-ownership
changed
into sole ownership.
The expression co-owner is wide enough to include all kinds of
ownership such as joint tenancy, Tenancy in common, Coparcenary,
membership of undivided Hindu family, etc. The very fact of the
reference to the property that the parties have certain shares,
indicates that they are co-owners.
In Indian Law a co-owner is entitled to three essentials of
ownership-
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Right to possession
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Right to enjoy
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Right to dispose
Therefore, if a co-owner is deprived of his property, he has a
right to
be put back in possession. Such a co-owner has an interest in
every
portion of the property and has a right irrespective of his
quantity of
share, to be in possession jointly with others. This is also
called
joint-ownership.
The following are the types of co-ownerships:
Tenants in Common
When the type of co-ownership is not specifically stated, by
default a
tenancy in common is likely to exist. Each tenant in common has a
separate fractional interest in the entire property. Although each
tenant in common has a separate interest in the property, each may
possess and use the whole property. Tenants in common may hold
unequal
interest in the property but the interests held by each tenant in
common
is a fractional interest in the entire property
For e.g. B owns a 25% interest in the property and A owns a 75%
interest. Each tenant in common may freely transfer his/her
interest in
the property.
Tenants in common do not have the right of survivorship.
Therefore, upon
the death of one tenant in common, his/her interest passes via
will or
through the laws of intestacy to another persons who will then
become a
tenant in common with the surviving co-owners.
Joint Tenancy
The most attractive feature of joint tenancy is the right of
survivorship. Upon the death of one joint tenant, his/her interest
immediately passes to the surviving joint tenants and not to the
decedents estate. Joint tenants hold a single unified interest in
the
entire property. Each joint tenant must have equal shares in the
property
For e.g. B and A each hold a 50% interest. Each joint tenant may
occupy
the entire property subject only to the rights of the other joint
tenants.
Unlike tenants in common, joint tenancy has several requirements
that
must be met in order to be properly created. Massachusetts law
requires
that in order for a joint tenancy to be created specific language
must
be included in the conveyance or devise. Such language includes
that the
grantees take the land: "jointly"; "as joint tenants"; "in joint
tenancy"; "to them and the survivor of them"; or using other
language in
the instrument that it was clearly intended to create an estate in
joint
tenancy. However, even if such language is contained in the
conveying
instrument, a joint tenancy may not exist. There are four
additional
common law requirements necessary in order to create a joint
tenancy.
The four unities are
(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 the Entirety
This type of co-ownership is exclusively for husband and wife.
Similar
to joint tenancy, tenancy by the entirety provides the right of
survivorship. To exist, tenancy by the entirety requires that the
four
unities of joint tenancy exist plus a fifth unity of marriage
between
the two co-owners. However, even if all five unities exists, the
type of
co-ownership may still be joint tenancy if the conveying
instrument
indicates such. Unlike joint tenancy, tenancy by the entirety does
not
allow one spouse to convey his interest to a third party. However,
one
spouse may convey his/her interest to the other spouse. A tenancy
by the
entirety may only be terminated by divorce, death, or mutual
agreement
by both spouses. A terminated tenancy by the entirety becomes a
tenancy
in common.
In
Konchunju Nair v. Koshy Alexander
it was held that if a
co-owner
wants to erect a dwelling house on the land he is free to do so.
If
division of co-ownership of property takes place, the co-owner can
claim, that, the said property be allotted to his share. The Court
would
ordinarily grant such an equitable right.
When Is A Co-Owner Legally Competent 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.
But in
some cases of Mitakshara coparcenary, the consent of other
coparceners
is required before any such transfer.
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.
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. 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
Rukmini and others v. H.N T. Chettiar
it was held by the High
Court
of Madras that a co-sharer cannot be allowed to cause prejudice to
the
other co-sharers by putting up a substantial construction during
the
pendency of a suit for partition filed by the other co-sharers.
The High Court of Punjab and Haryana in a case of
Hazara Singh v.
Faqiria
where a co-owner contended 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 adverse 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.
What Are The Rights Of A Transferee In Such A 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 ie 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 are his rights after the transfer-
Right to joint possession
Every joint owner or co-owner of property has a proprietary right
in the
whole estate. After the transfer, the transferee becomes the
co-owner
and gets all his rights. He also has the right to joint possession
in
property except a dwelling house. If a co-owner or his transferee
is
ousted from joint possession, he is entitled to joint possession
by a
suit, and is not necessary forced to sue for partition.
A co-sharer can sue for possession either for the benefit of the
entire
body of co-sharers or for the partition and possession of the
plaintiffs share.
Right to peaceful possession
If instead of remaining in exclusive possession of his separate
plot,
the co-owner transfers it, his transferee cannot be disturbed by
the
other co-owners until and unless a final partition takes place. It
was
also held that where a tenant of a land who derives his title from
all
co-owners cannot be disturbed by one co-owner without the consent
of
all. But where the co-owners are enjoying the common property in
separate plots for the sake of convenience, the court will not
decree to
one co-owner joint possession of the portion in the actual
cultivation
of the other.
Right to make improvements
If a co-owner can make out a case that he is entitled to make
construction on any part of the joint land, he should be allowed
to do
so. But he is not entitled to make construction on any other
portion of
the joint holding or to the detriment of the other co-owners.
Right to enforce partition
In all cases of joint partnership, each party has a right to
demand and
enforce a partition; in other words a right to be placed in a
position
to enjoy his own right separately without interruption and
interference
by others. Under this section, not only a transferee of a share in
the
property but a transferee of any interest can sue for partition. A
lessee, a mortgagee and even a life tenant is entitled to seek
partition
so far it is necessary to give effect to the transfer.
A claim of partition will only be refused on the ground of
inconvenience. Partition does not depend on the duration of right.
In a
celebrated case a monthly tenant was also entitled to partition
just to
protect the rights of the plaintiffs. But a partition effected at
the
instance of a person having a temporary interest, lasts only till
the
expiry of that interest.
The transferee also gets the liabilities with all the benefits.
The rights of the transferee are subject to the conditions and
liabilities that attach at the date of the transfer to the share
or
interest so transferred.
Lalitha James and others v. Ajit Kumar and others
AIR 1991 MP 15
Facts:
P.S. Chouhan held vast properties. He died unmarried and issueless
and
he decided to give away the said properties to his 2 sisters (Mrs.
Dayabai and Gracebai) and executed a gift deed in 1935. There had
been
no partition between them.
Mrs. Dayabai was survived by appellants 2,3and 4. Gracebai is
survived
by appellant 1, Mrs Lalita Jaems and respondent no. 3. Mrs. Park.
The
5.74 acres of land was divided between the survivors of Gracebai.
Respondent no. 3 sold her share to Respondent no. 2 for Rs.
14,000/-.After the purchase, the transferee started digging on the land to
raise
a structure, it was objected by appellant no.1. A suit was filed
by the
Respondent 2.
At the Trial Court the suit was dismissed as the vendor was not in
possession and the sale did not confer any right or title on them
and they can get their money refunded
In the First Appeal Court it was held that the respondent no 3 was
in
exclusive possession of the land and rightfully sold it to the
respondent no 2.
Final Judgement :
The Madhya Pradesh High Court emphasized that it is the strength
of the
plaintiffs title and not the absence of title of the defendant
that
matters. A purchaser from a co-owner of a portion of undivided
property
is not entitled to possession of any particular part of the joint
property. His right would be for joint ownership and not for
exclusive
ownership of any particular part of the joint property. A
transferee is
not in a better position than the co-owner himself. Section 44
gives
sanction to this principle.
The Respondents will be only entitled to enforce partition of the
joint
estate. The sale of the exclusive property cannot be accepted.
Therefore, the appeal was allowed.
Second part of the Section 44
This is an exception to the rule provided in the first part. 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
Balaji Anant v. Ganesh Janarthan Westropp C.J, observed as
follows:
We deem it a far safer practice to leave a purchaser to a suit
for partition than to place him by force in joint possession in
the
Hindu Family, which may be not only of a different caste from his
own,
but also different in race and religion.
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 other
words he
should be a stranger.
The right of a stranger transferee to have the house partitioned
is,
subject to Section 4 of the Partition Act, 1893. Under this
section, a
stranger claiming 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.
Explanation of Dwelling House
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 propert 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.
Aahim Ranjan Das v. Smt. Bimla Ghosh
AIR 1992 Cal 44
Facts:
The disputed property belonged to 4 brothers A, B, C, D.
A purchased 1/5th share of D by a deed in 1969. A died in 1975
leaving
behind him the plaintiffs as his legal heirs. B died leaving four
sons
and daughters. C is alive and the property is an undivided family
dwelling house of the plaintiffs and co-sharers.
C and B transferred their interest to the defendants. A monthly
tenancy
was created in favour of the lessee-defendant and he was also
delivered
the possession of the same.
The Plaintiffs filed a suit under Section 44 to restrain the
lessee
from interfering with their possession.The Judgment of the court was that the plaintiffs can very well
ask for
a protection. There is no controversy that the defendant is a
stranger
to the family. The co-sharer is entitled to protection under
section 44.There was enough evidence to show that the house was a dwelling
house
and that the family was undivided and event the defendant was a
stranger. The court relied on various judgments where it was held
that
upon a transfer of an undivided share of a dwelling house by a
co-sharer, the other co-sharer may maintain a suit for injunction
to
restrain the transferee from getting into possession. Moreover it
was
said that a stranger purchaser is reduced to a trespasser. Section
4 of
the Partition Act spells out the right to partition of such a
stranger.
Thus the appeal was dismissed.
In the case of
Ramdayal v. Mannaklal
where the defendant had
purchased
a house from the plaintiffs father and was put in possession
thereof.
The Plaintiff filed a suit challenging the validity of the sale
for the
absence of a legal necessity. The court was of the opinion that if
the
purchaser files a suit for partition in a certain period then he
can be
in possession till the pendency of the suit. He can be legally
handed
over that property if it is not in excess of the share of the
coparcener. But if the coparcener transfers more than his share
then in
such a situation the purchaser can acquire what belongs to the
co-owner
i.e only his share. On looking at the material in records it was
found
that the property purchased was less than the share of the vendor.
So
the defendant was given possession.
In the case of
Gautam Paul v. Debi Rani Paul
the facts were-
There were three sons A, B, C. they received the property via gift
deed.
D, Son of C, purchased the share of A. The share of B also came to
soc
of C by partition. The appellants who were the heirs of A still
occupied
a room in the suit property and also purchased certain share from
the
heirs of D. The other heirs filed a suit for partition and also
challenged the sale.
The Court opined that undoubtedly it is the undivided family of D
who
holds the dwelling. The appellant cannot be said to be the member
of the
joint family of D. Merely because he is related by blood to D will
not
make him a member of the family.
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Property Law: Section 44 of the Transfer of Property Act, 1882
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The
author can be reached at:
manishagarg@legalserviceindia.com /
