THE TAMIL NADU NATIONAL LAW

SCHOOL,
TIRUCHHIRAPALLI

2016-2017

PROPERTY LAW

TOPIC: PROBLEMS ENCOUNTERED BY CO-OWNERS : SOLUTION IN SECTION 44

OF TRANSFER OF PROPERTY & SECTION 4 OF PARTITION ACT ,1893

Under Supervision of: Submitted by:

MOHAMMED AZAD Gunjan Chandavat

Asst. Professor (Law) ROLL NO-

BC0140023

B.Com.Llb.
(Hons.)
The Tamil Nadu National Law School, Semester-V
Trichy.

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 DECLARATION

I GUNJAN CHANDAVAT hereby declare that the project work submitted to Tamil Nadu
National Law School; Tiruchirappalli, is the record of a bonafide work done by me under the
supervision and guidance of MOHAMMED AZAD, Faculty of Law, Tamil Nadu National
Law School; Tiruchirappalli.

GUNJAN CHANDAVAT

B.Com.LL.B(H).

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 ACKNOWLEDGMENT

It is not a ritual but a heartfelt feeling that I wish to express my gratitude. In writing this research
project, I am indebted to many in the course of this research project.

I am also thankful to MOHAMMED AZAAD ,(Ass. Professor), THE TAMIL NADU

NATIONAL LAW SCHOOL)

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 TABLE OF CONTENTS

Chapter I

1 INTRODUCTION

2 Chapter II

Types of ownership

5 Chapter III

Rights of Transferee

8 Chapter IVRelation of section 44 and section 4 of partition Act

10 Chapter V

Relation of sec.44 ,45,46 and 47

11 Conclusion

12 Bibliography

INDEX OF AUTHORITIES

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 Transfer of Property Act, 1882
Partition Act,1893

CASES REFERRED

Balai Chandra v Raisuddin Naskar (1956) 60 Cal WN 270, AIR 1956 Cal 58
Balaji v. Ganesh (1881) I.L.R. 5 Bom. 499, 504

Balshet v. Miran Saheb,(1899)I.L.R. 23 Bom. 77

Ghantesher Ghosh vs Madan Mohan Ghosh & Ors , (1996) 11 SCC 446.
Haradhone v. Usha Charan, AIR 1955 Cal.292
Jogeshwar Narain v. Ramachund Dutt(1896) ILR 23 Cal. 670
Mir Ali Nawaz v Mir Ali Ashar 97 IC 124, AIR 1927 Sau 62.

Printer v Marcel Martines AIR 2002 Kant 191.

Sakhawat Ali v. Ali Hussain , AIR 1957 ALL. 356,358, para 12 (F.B)
Shafina Begum v. Mt. Kifita, AIR 1939 ALL 640
Srilekha Ghosh (Roy) & Anr Vs. Partha Sarathi Ghosh2002 AIR 2500

LIST OF ABBREVIATION

AIR All India Reporter

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 All Allahabad High Court

Cal Calcutta High Court

Del Delhi High Court

Mad Madras High Court

SC Supreme Court

SCC Supreme Court Cases

s. Section

v. Versus

p. Page No.
& And
edn. Edition

PROBLEMS ENCOUNTERED BY CO-OWNERS : SOLUTION IN SECTION 44 OF

TRANSFER OF PROPERTY & SECTION 4 OF PARTITION ACT ,1893

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There are day to day transactions taking place in the area of property and in a place like India
where still there subsists a concept of Joint Hindu Family, it becomes even more difficult to
transfer a part of property which belong to the co-parcenor, the major hindrance is with regard to
dwelling house and the joint possession. Section 44 of the transfer of property deals with the
same and even Section 4 of Partition Act helps in solving the dispute in case a partition has to be
called. The expression co-owner includes joint tenency, tenency in common, coparcenary,
members of HUF. The main questions to be focused on are: How does the schools under Hindu
Law solves this conflict of joint property and dwelling house ?What happens if a co-owner dies
after in case while co-ownership is still there? What happens in case of usufructuary mortagage
and how it differs from normal mortagage while transferring under sec.44?

AIMS AND OBJECTIVES

The primary aim is to analyze the conflicts pertaining to transfer to property in case where there
are two co-owners and to see how the applicability differs in case of sale and mortagage.To study
recent case laws relating to such conflicts and come up with solution to that.

RESEARCH METHODOLOGY

The researcher is following ILI citation method and would be dealing with doctrinal
methodology by closely examining and analyzing various problems in transfer by co-owner and
also emphasizing on various case laws.

RESEARCH QUESTIONS

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 How does the schools under Hindu Law solves this conflict of joint property and
dwelling house ?
What happens if a co-owner is a defendant to a suit?
How are the other sections related to the section 44 of transfer of property Act?

SCOPE AND LIMITATION

The research of this project is limited to section 44,45,46, and 47 of Transfer of Property Act,
1882, and to section 4 of Partition Act,1893

CHAPTER-I INTRODUCTION

Property can be bought and owned jointly by more than one person and also there can be transfer
related to that property, in such cases there arises some legal and financial implications which

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have too be taken care in order to avoid disputes. Transfer by co-owner of immovable property
legally competent to transfer in that behalf transfers his shares or interest in such property there
arises a lot of complications which needs to be addressed at this juncture. The expression co-
owner includes under its umbrella numerous ownership like, joint tenancy, tenancy in common,
co-parcenaries ,membership of Joint Hindu family , joint purchase of property, etc., the mere fact
of reference to a property that parties have certain shares, is enough to understand that there
exists a co-ownership. The co-owners are entitled to rights which includes:1

Right to possession.
Right to dispose.
Right to enjoy.

The main principle behind section 44 is of subrogation & substitution. When one of several co-
owners transfers his share, the transferee stands in the shoes of the transferor. He acquires as
against the other co-owners the same rights that the transferee had , and is subject to any
condition & liabilities affecting the share at the date of transfer. The object of this section as well
as of the sec.4 of the Partition Act 1893 is to keep off strangers in cases of dwelling house.
Section 44 also 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.2

This section applies to Hindu Law , but does not alter any rule of Hindu Law.The rights of the
transferee of a coparcener both as to joint possession ,and as to partition vary in different schools
of Hindu law and in different provinces.This also applies to all transfers including sales &
mortagages.3There is no law which says that a co-sharer must sell to another , he can even sell to
a stranger in case of a dwelling house also.

1 https://advocateselvakumar.wordpress.com/2014/07/01/transfer-of-property-by-a-co-owner/

2 Sir Dinshaw Fardunji Mulla, Transfer of Property, 12th Edition, LexisNexis, pg -250

3 Ibid

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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.4

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.5

CHAPTER-II TYPES OF OWNERSHIP

There are different forms of co-ownership which includes:6

1. Tenant in common: When the form of co-ownership is not specifically stated, by default,
a tenancy in common exists. 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 interests in a property but the interests held by each are fractional interests in the
entire property. Each tenant in common may transfer his interest in the property. Tenants
in common do not have the right of survivorship. Therefore, on the death of one tenant in
common, his interest passes through a Will or through the laws of intestacy to another
person who will then become a tenant in common with the surviving co-owners.
2. Joint Tenancy: This entails the right of survivorship. On the death of one joint tenant, his
interest passes on to the surviving joint tenants and not to the decedent's estate. Joint
tenants hold a single unified interest in the entire property. Each joint tenant must have

4 Manisha Garg , Property Law: Section 44 of the Transfer of Property Act, 1882

5 Ibid

6 Ashish Gupta, Some forms of co-ownership of property, times of india-economictimes

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 equal shares in the property. Each joint tenant may occupy the entire property subject
only to the rights of the other joint tenants. Joint tenancy has several requirements that
must be met in order to be properly created. For a joint tenancy to be created, specific
clauses must be included in the conveyance such as 'the grantees take the property
jointly', 'as joint tenants', 'in joint tenancy', 'to them and their survivor' etc. The clauses in
the instrument should show it was clearly intended to create an estate in joint tenancy.

These four common legal requirements are necessary to create a joint tenancy:

Interests of the joint tenants must vest at the same time.

The joint tenants must have undivided interests in the whole property and not divided interests in
separate parts.

The joint tenants must derive their interests from the same instrument.

Each joint tenant must have estates of the same type and same duration.All these four unities
must exist. If one unity is missing at any time during the joint tenancy, the form of co-ownership
automatically changes to a tenancy in common. A joint tenancy may be created by a Will or
deed, but can never be created by intestacy because there has to be an instrument expressing joint
tenancy. A joint tenancy is freely transferable.7

CHAPTER -III RIGHTS OF TRANSFEREE

What are the Rights of a Transferee in such a Transaction8

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

7 Ibid

8 http://www.legalserviceindia.com/articles/plaw.htm

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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.9

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.10

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.

9 Supra note.8

10 Ibid

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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.Hence, at tenant
cannot go for a permanent partition.

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.

CHAPTER-IV RELATION OF SECTION 44 AND SECTION 4 OF PARTITION ACT

Tenancy by Coparcenary :Tenancy in coparcenary arose in the operation by law.When two or

more persons inherited the property together as co-heirs, they are called coparceners and held
their estate in coparcenary.

Among Hindus joint tenancy is different from English Law.The Privy Council in the Jogeshwar
Narain v. Ramachund Dutt.11The principle of joint tenancy appears to be unknown to Hindu
Law ,except in case of coparcenary between members of undivided family.In Hindu Law
,therefore when a property is transferred to more persons than one , in absence of any indication
to the contrary, the presumption is that the done take as tenants in common.12
11 (1896) ILR 23 Cal. 670

12 G.C.V.Subba Rao,LAW ON TRANSFER OF PROPERTY,ALT PUBLICATIONS,7th Edition,Vol-1

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To resolve the conflict in case of Joint Hindu Family, we need to look at section 4 of the Partition
Act,1893 which lays down the following:13

Partition suit by transferee of share in dwelling-house.

(1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a
person who is not a member of such family and such transferee sues for partition, the court shall,
if any member of the family being a shareholder shall undertake to buy the share of such
transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of
such share to such shareholder, and may give all necessary and proper directions in that behalf.

(2) If in any case described in sub-section (1) two or more members of the family being such
shareholders severally undertake to buy such share, the court shall follow the procedure
prescribed by sub-section (2) of the last foregoing section.

The eighty sixth Law Commission Report which analysed the Partition Act and its provisions
and carved out some recommendations related to the Act.14

The principle of section 44, second paragraph can be deduced from the judgement of Westropp
C.J. in a Bombay case:15

We deem it a far safe practice and less likely to lead to 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 only of a different caste from his own , but also different in
race and religion.16

13 http://www.advocatekhoj.com/library/bareacts/partition/index.php?Title=Partition%20Act,%201893

14,Law Commission of India, 86th report on Partition Act, http://lawcommissionofindia.nic.in/51-

100/report86.pdf

15 Balaji v. Ganesh (1881) I.L.R. 5 Bom. 499, 504 (Westropp C.J.)

16 Supra note.12

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As regards the requirement which the word undivided seeks to draw out is that it is not confined
to joint Hindu family, or even to any joint family but simply connotes that there is a family, the
members have not divided there property, the emphasis is on the undivided character of the
house ,Accordingly a muslim widow who though re-married long ago , continued to live with the
second husband in the family house,has been entitled to the benefit of the section.1718

There also arose a controversy with regard to who can be plaintiff in the suit. Different high
courts have different opinion regarding this :19

Two decisions of the Bombay High Court20 ,takes the narrower view , holding that section
4 applies to only where the transferee is a plaintiff claiming pertition or separate
possession.
A Full Bench decision of the Allahbad High Court21 while following the Bombay courts
view ,indicates that the court would be prepared to extend the benefit of section 4 to a
case where the transferee , though not the plaintiff ,makes a claim for partition.
The Calcutta High Court22 takes a view , holding that the transferee defendant need not
have made a claim for partition.

The recommendation by the Law Commission in regard to section 4(1) was that it should be
widened to apply to whether transferee is a plaintiff or defendant and whether the transferee
makes a prayer for specific allotment or not .

The Supreme Court in Gautam Paul v Debi Rani Paul23 has held that:24

17 See. Shafina Begum v. Mt. Kifita, AIR 1939 ALL 640 (Collister J.)

18 Supra note.14

19 Ibid

20See. Balshet v. Miran Saheb,(1899)I.L.R. 23 Bom. 77

21 See.Sakhawat Ali v. Ali Hussain , AIR 1957 ALL. 356,358, para 12 (F.B)

22 See.Haradhone v. Usha Charan, AIR 1955 Cal.292

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There is no law which provides that co-sharer must only sell his/her share to another co-sharer.
Thus strangers/outsiders can purchase shares even in a dwelling house. Section 44 of the
Transfer of Property Act provides that the transferee of a share in a dwelling house, if he/she is
not a member of that family, gets no right to joint possession or common enjoyment of the
house.25

Section 44 adequately protects the family members against intrusion by an outsider into the
dwelling house. The only manner in which an outsider can get possession is to sue for possession
and claims separation of his share. In that case, section 4 of the Partition Act comes into play.
Except of section 4 of the Partition Act, there is no other law which provides a right to a co-
sharer to purchase the share sold to an outsider. It may noted that to avail the benefit of s 4 of
certain conditions have to be fulfilled namely:

(1) A co-owner having undivided share in the family dwelling house should effect transfer of his
undivided interest therein

(2) The transferee of such undivided interest of the co-owner should be an outsider or stranger to
the family

(3) Such transferee must sue for partition and separate possession of the undivided share
transferred to him by the co-owner concerned

(4) As against such a claim of the stranger transferee, any member of the family having
undivided share in the dwelling house should put forward his claim of pre-emption by
undertaking to buy out the share of such transferee;

(5) While accepting such a claim for pre-emption by the existing co-owner of the dwelling house
belonging to the undivided family, the Court should make a valuation of the transferred share
belonging to the stranger transferee and make the claimant co-owner pay the value of the share

23 (2000) 8 SCC 330

24 Mulla,Transfer on property,Lexis Nexis,10th Edition,pg no.258

25 Ibid

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of the transferee so as to enable the claimant co-owner to purchase by way of pre-emption the
said transferred share of the stranger transferee in the dwelling house belonging to the undivided
family so that the stranger transferee can have no more claim left for partition and separate
possession of his share in the dwelling house and accordingly can be effectively denied entry in
any part of such family dwelling house.26

An analysis of case law , whether on marriage a daughter ceases to be a member of the family:

Srilekha Ghosh (Roy) & Anr Vs. Partha Sarathi Ghosh27

Facts: One Sailen Ghosh was the original owner of the suit property. He died on 23rd June,
1942 leaving behind his widow Smt. Mira Ghosh, son Partha Sarathi Ghosh-who is respondent
herein and two daughters namely Smt. Srilekha Ghosh (Roy) and Smt. Sulekha Ghosh (Mitra)
who are the appellants herein. According to the law of succession prevailing then the respondent
and his mother became joint owners of the suit property .Before her marriage the plaintiff
no.2(second daughter)had filed an application under Section 4 of the Partition Act, 1893 for
'praying for pre- emption of the share of plaintiff no.1. During pendency of the suit plaintiff no.2
got married. Thereafter the defendant filed an application before the trial court for an order to
purchase the share of plaintiff no.2. The prayer of the defendant was rejected by the trial court.28

Issue: The core question that arises for consideration in this appeal is whether the defendant is
entitled to purchase the share of his sister plaintiff no.2 under Section 4 of the Act.

Decision: The position is well settled that Section 4 of the Act deserves a liberal construction
because its very object and purpose is to preserve the integrity of the dwelling house. We are of
the view that in the context of the facts and circumstances of the case the High Court was not

26 www.wbja.nic.in/wbja_adm/files/AIR%202015%20CAL%2099.pdf, see: Ghantesher Ghosh vs Madan Mohan

Ghosh & Ors , (1996) 11 SCC 446.

27 2002 AIR 2500, 2002( 1 )Suppl.SCR 45, 2002( 6 )SCC 359

28 http://www.advocatekhoj.com/library/judgments/index.php?go=2002/july/12.php

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right in granting the petition filed by the respondent under Section 4 of the Act. Accordingly the
order of the High Court under challenge is modified in the manner and to the extent noted above
and the appeal is disposed of accordingly.29

In the case of Gautam Paul v. Debi Rani Paul on 17 October, 2000 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.30

CHAPTER-V COMPARISON WITH OTHER SECTIONS NAMELY SECTION 45,46

AND 47

The succeeding sections after section 44 of transfer of property deals with the how the
consideration can be transferred in case of joint owners being the transferor and transferee, how
does the reduction in the property takes place while co-owners are transferring their shares.

If two or more persons purchase a property out of common fund, the share of each of those
persons would be the same as their interest in the common fund, then the rule in s 45 would be
automatically attracted. it is established by acceptable evidence that purchase in the name of the
co-owner was by consent, and that the consideration for such purchase was taken out from
common fund.31It has been held that the principle of this section applies to property purchased at
an involuntary sale as it embodies a rule of justice, equity and good conscience.3233

29 Supra note.26

30 http://www.legalserviceindia.com/articles/plaw.htm

31See. Printer v Marcel Martines AIR 2002 Kant 191.

32 Balai Chandra v Raisuddin Naskar (1956) 60 Cal WN 270, AIR 1956 Cal 58

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This section is the converse of s 45. That section refers to interests in the property of several
purchasers, while this section to the shares in the consideration of several vendors. Tenants in
common have joint possession, but distinct interests. A tenant for life and a remainder man have
distinct interests, and so have a mortgagee and a mortgagor, and a lessee and a lessor.34 The value
of the interest of a mortgagee is the mortgage money, and when a mortgagee and a mortgagor
join in a conveyance, then, in the absence of a contract to the contrary, the mortgagee is entitled
to the mortgage money as the price of his interest, and the mortgagor to the balance as the price
of the equity of redemption.35 The section applies both in case of absolute transfers and also in
case of transfer of an interest in property.

Section 47 talks about the reduction in the share of property through transfer:

The principle of this section was applied in a Sind case,36 where two Mahomedan zamindars who
held an estate as tenants in common in equal shares sold an undivided half of it. One of the
zamindars had been under the protection of the manager, encumbered estates, and was by virtue
of the Sind Encumbered Estates Act (Bombay Act 20 of 1891) incapable of alienating beyond his
lifetime. After his death his heirs sued for partition, and it was held that the vendee had taken
one-fourth from each zamindar, so that the heirs were entitled to one-fourth to in case of transfer
of an interest in the property.37

All the above sections together make it smooth for a transfer to take place, when a co-owner is
transferring the property to a stranger and the subsequent allocation of respective shares properly.

33 Mulla,Transfer on property,Lexis Nexis,10th Edition,pg no.262

34 Morris v Debenham (1876) 2 Ch D 540

35 Supra note.31

36 Mir Ali Nawaz v Mir Ali Ashar 97 IC 124, AIR 1927 Sau 62.

37 Supra note 33

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 CONCLUSION:

Considering the case of joint ownership and the subsequent hurdles in its transfer , the enactment
of section 4 of the Partition Act has made it more easy and viable in cases of such transfers.Joint
ownership is not limited to the co-parcenary property it also includes teneancy by entirety which
passes on to the generations through survivorship. Hence where there are several co-owners it
becomes these rights are guaranteed to them for better enjoyment of property:

1. The transferors right to joint possession or other common or part enjoyment of the
property, and
2. the transferors right to enforce a portion of the same.
It should, however, be noted that these rights would be subject to the conditions and
liabilities affecting the share so transferred as on the date of the transfer.

There is one exception provided by the second paragraph to the section. The exception is
that where the share transferred is a share of a dwelling house belonging to an undivided

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 family and the transferee is not a member of such family, the transferee shall not be
entitled to joint possession. But if the dwelling house has been completely divided and if
the transferors share has been marked off, so as to be capable of a separate enjoyment,
there is no reason why the transferee should not have possession of it.

BIBLIOGRAPHY:

BOOKS REFERRED

Mulla,Transfer on property,Lexis Nexis,10th Edition

G.C.V.Subba Rao,LAW ON TRANSFER OF PROPERTY,ALT PUBLICATIONS,7th
Edition,Vol-1

WEBSITES REFERRED

http://www.legalserviceindia.com/articles/plaw.htm (last modified 22 October, 2016)

http://www.advocatekhoj.com/library/judgments/index.php?go=2002/july/12.php (last
modified 23 October, 2016)

https://advocateselvakumar.wordpress.com/2014/07/01/transfer-of-property-by-a-co-
owner/(last modified 23 October, 2016)

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