Transfer Of Property Act

Section 44 of Transfer of Property Act runs as follows:- “Where one of the two or more co-owner 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 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 the
common or part enjoyment of the house. The section now applies to Hindus by virtue of the Transfer of
Property (Amendment) Act, 1929, which omitted the words ‘Hindu or Buddhist’ in the concluding part of
Section 2 of the principal Act. The decision of the Madras High in Venkatarama v. Meera Labai [66] and in
Kota Balabhadra v. Khetra Das [67] that Section 44 could not override the Hindu Law were before the
amendment and can no longer hold good.

The language of the section, as its second sentence indicates, will cover the case of a Hindu undivided family.
The words “subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so
transferred” cannot altogether take away the transferee’s right to joint possession conferred by the section
itself, but can only subject it to restrictions and equities. It would therefore seem that while the transferee of a
share of a dwelling house belonging to an undivided family is not entitled to joint possession, a transferee of a
share of the other immovable property is entitled to joint possession, a transferee of a share of other immovable
property is entitled to joint possession, and enjoyment; he would be tenant-in-common, entitled to mesne
profits if he is kept out of possession.

Conclusion
Alienation means transfer of property, such as gifts, sales and mortgages. Alienations have an added
importance in Hindu Law, as, ordinarily, neither the Karta nor any other coparceners singly, possesses full
power of alienation over the joint family property or over his interest in the joint family property, though under
the Dayabhaga School a coparcener has the right of alienation over his interest in the joint family property.

When the owner of property transfers it willingly, it is voluntary alienation, while involuntary alienation takes
place when the court attaches the property of a person. A person can alienate joint family property only when
there is some necessity, legal necessity or for the benefit of estate. A Hindu has unrestricted power to alienate
his personal property according to his own interest or a fortiori the interest of the other coparcener in joint
family property. Only the coparceners possess the right to alienate the joint family property. The non-
coparcener members of the family do not have this authority.

Every coparcener has got the right to impugn the alienation made by the Karta or Father, as the case may be.
But this right is not inclusive of the right to obstruct alienation. The unauthorized alienations are voidable at
the instance of the other coparceners.
Where the sale of coparcenary property or an interest therein is within the authority of the alienor, it cannot be
set aside and the Alinee gets certain rights in respect of that property. If the whole of the coparcenary property
is sold, the position of the vendee is governed by the general law. He is full owner of the property, entitled to
the possession thereof and to the ejectment of the members of the joint family.

If the property which a purchaser buys from a coparcener is charged or burdened with any liability, he takes
the share of the vendor on partition subject to the liabilities thereon.

Thus the coparcenary property can be sold by the manager when the need arises, and the alinee can claim for
certain rights or has certain remedies against the purchase. The rule of Hindu law is that the vendee whether at
a private sale or at an auction sale by court stands in the shoes of vendor, but it does not mean that he becomes
a member of joint family property like his vendor.

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