Transfer by Co-owners under TPA

Introduction

• Co-ownership, also known as joint ownership or co-tenancy, refers to the ownership of a property by two or more individuals.
• Section 44 of the Transfer of Property Act, 1882 (TPA), deals with transfers by co-owners.
• There are three types of co-ownership, namely, joint tenancy, tenancy-in-common and coparcenary.
• The co-owners have the right to use, dispose of, and possess the property.

Kinds of Co- ownership

• Tenancy-in-common
  • Tenants in common are those who occupy a property jointly with another person but do not specify how much of the property they own.
  • Every tenant in common has a separate interest in a particular property and each may possess and use the entire property.
  • In tenancy in common, co-owners can have unequal shares, and there is no right of survivorship i.e., each co-owner's share can be transferred to heirs or others.
• Joint Tenancy
  • Joint tenancy is a type of co-ownership in which two or more individuals own the property in equal shares at the same time.
  • In joint tenancy, co-owners have equal shares and there is a right of survivorship i.e., upon the death of one co-owner, the property passes to the surviving co-owners.
• Tenancy by the Entirety
  • Tenancy by the entirety is a form of joint property ownership that is available only to married couples.
  • In tenancy by the entirety, neither husband nor wife can transfer his or her interest in the property to a third person.

Transfer by one Co- owner: Section 44

• Section 44 of TPA states that if one of the co-owners transfers his share in the property, the transferee steps into the shoes of the transferor and becomes a co-owner with the remaining co-owners.
• The transferee will get all the rights and liabilities of the transferor, including the right to partition the property.

Rights of the Transferee

• Right to Joint Possession
  • Proprietary rights extend to all co-owners of a property.
  • When the transferee steps into the shoes of the transferor, he acquires the right to joint possession of the property along with the other co-owners.
  • The transferee can use and enjoy the property in the same manner as the transferor.
• Right to Enforce Partition
  • The transferee has the right to demand partition of the property.
  • Partition involves dividing the property into distinct portions so that each co-owner gets a specific share.
  • If the property cannot be practically divided, it might be sold, and the proceeds distributed among the co-owners.
• Right to Peaceful Possession
  • Each co-owner has the right to peaceful possession of property.
  • Once a co-owner transfers ownership of a piece of property to the transferee, other co-owners are not allowed to interfere with the transfer until the final partition is enforced.
• Right to Make Improvements
  • Each co-owner is free to build on any area of his land where he is permitted to do so. However, he cannot build on any other portion of the joint property or to the detriment of the other co-owners.

Liabilities of the Transferee

• Subject to Existing Conditions and Liabilities
  • The transferee’s rights are subject to the same conditions and liabilities affecting the share at the time of the transfer.
• Contribution to Expenses
  • The transferee must contribute to the expenses of maintaining and preserving the property, including taxes, repairs, and other costs, in proportion to their share.

Special Provision for Dwelling Houses

• The provision for a dwelling house falls under the exception to Section 44 of TPA.
• It states if the transferee is not a member of the undivided family and the property in question is a dwelling-house belonging to an undivided family, the transferee does not have the right to joint possession or common enjoyment of the house.
• This provision protects the privacy and exclusivity of family dwelling houses.

Case laws

• Durgapada Pai v. Debidas Mukherjee (1973)
  • The Court held that a dwelling house connotes to some extent a permanent abode of the undivided family where such family resides or intends to reside generally and not a house for stray short or temporary residence for specified purpose.
• Dorab Cawasji Warden v. Coomi Sarob Warden (1990)
  • The Supreme Court restrained a suit for partition filed by the buyer of an undivided share because the circumstances showed that irreparable damage would have been caused to the family if an outsider found entry into the house.
• Sri Ram v. Ram Kishan (2010)
  • The Court held that, when any member of a joint family sells his portion of the family property which has not been marked out by partition or otherwise, the purchaser can file a suit for partition and delivery of possession of the portion to which the selling member is entitled.

Conclusion

The TPA, provides a comprehensive framework for the transfer of property by co-owners. Understanding the rights and liabilities is essential for co-owners and transferees alike. Proper legal guidance and adherence to the provisions of the TPA can help ensure that transfers are conducted smoothly, and rights are adequately protected.