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Section 44 of Transfer of Property Act , 1882

March 6, 2023

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This article is written by Upasana Sarkar, a student of Jogesh Chandra Chaudhuri Law College. This article provides a detailed understanding of Section 44 of the Transfer of Property Act, 1882. It provides an extensive analysis of the rights and liabilities of the transferee, which he acquires from a co-owner for the enjoyment of the transferred property.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Transfer means an act of converting something from one person to another. Property means something owned or possessed by a person. A person can transfer his property to another person by transferring his ownership rights. Where two or more persons enjoy common ownership of a property, any co-sharer can transfer his own share in the property to a stranger or outsider. Section 44 of the Transfer of Property Act, 1882, deals with transfers by co-owners. The co-owners have equal rights to use, possess, and dispose of the property. Section 44 also deals with the rights and liabilities of the transferee and the exception. It also states the idea of joint transfer and transfer by co-owners of common property.

What is Section 44 of the Transfer of Property Act

Section 44 of the Transfer of Property Act, 1882, deals with rules applicable in cases of transfers by a co-owner. It also discusses the rights and liabilities of a transferee as a co-owner for the enjoyment of the transferred property. This Section states that any one or more legally competent owners of immovable property may transfer their share of such property or any interest to the transferee. The transferor’s right to joint possession or other common or part enjoyment of the property, along with his rights and liabilities subject to certain conditions, are transferred to the transferee. In the second part of the section, it states the exception to this rule. This exception prevents a stranger from claiming joint possession of a family share of a dwelling house. The term ‘co-owner’ specifies that the co-owner may have joint possession or possession in common under English law.

Definition of co-owner

The term ‘co-owner’ means one person or a group of persons who owns property with another person or organisation. The general meaning of the term is “a member of the same family”. The co-owners may either have an equal share in the property or a portion of the property in their names. The meaning of co-owner is very wide. It includes all kinds of ownership, such as joint tenancy, tenancy in common, and tenancy by the entirety. Under Indian law, a co-owner is entitled to mainly three kinds of ownership like-

Right to possession,
Right to enjoyment, and
Right to disposal.

Ownership includes innumerable claims, liberties, and powers with regard to the ownership of a property.

Different kinds of co-ownership

The expression ‘ownership’ consists of various rights, privileges, and powers in relation to the property in question. A co-owner has the right to share and possess property jointly with others. Therefore, under Indian law, a co-owner has the right to own, enjoy, and dispose of property. If a co-owner is deprived of his property, he has the right to reclaim it. The following are the different types of co-ownership:

Tenancy in common (TIC)

“Tenancy in common” means a situation where two or more persons share ownership of a property or a portion of land. When two or more persons jointly possess a property as owners but their share of the property is not specified, such individuals are said to be tenants in common. Equal ownership rights in the property will be granted to each co-owner. Although every tenant in common has a separate interest in a particular property, each may possess and use the entire property. If a co-owner dies, his portion will pass to his legal heir or any individual whose name is stated in the will. Then he will be the tenant in common with the other co-owners.

Joint tenancy

Joint tenancy means a situation where there are two or more owners of a property who are sharing an equal share of the property. If one of the joint owners dies, his or her interest in the property automatically transfers to the surviving joint tenants. Some of the essential elements of joint tenancy are as follows:

Unity of possession: Every co-owner of a joint tenancy has the right to possess and enjoy the entire property.
Unity of time: The co-ownership interest must vest at the same time.
Unity of interest: Every co-owner of a joint tenancy must own the same estate and for the same duration.
Unity of title: The interests of the co-owners of a joint tenancy must be procured from the same source, like a will or deed.

Tenancy by entirety

“Tenancy by entirety” means a type of co-ownership that is exclusively for spouses. The co-owners must be husband and wife to own a property in its entirety. Either spouse cannot transfer his or her interest to a third party. He or she can transfer the interest in the property only to his or her spouse. In this kind of ownership, all four units, such as the unity of possession, unity of time, unity of interest, and unity of title, must be present, along with the unity of marriage. The co-ownership right in tenancy by the entirety is only terminated by divorce, or death, or mutual agreement by both spouses. When it is terminated, it becomes a tenancy in common.

In the case of Kochkunju Nair v. Koshy Alexander (1999), it was observed that where a co-owner wishes to erect a dwelling house on the lady, he is allowed to do so. In the event that the co-ownership of a property is divided, each co-owner can claim that the property be allotted to his share. Mostly, the court would originally grant such an equitable right.

Joint possession and consequences

When more than one person owns a property, it is known as joint ownership. One of the important characteristics of joint tenancy is the right of survivorship. This means that after the death of one joint co-owner, his share immediately passes to the surviving joint co-owners of the joint possession. Every co-owner must have equal rights to the property. Every co-owner may occupy the entire property subject to certain conditions, i.e., the rights of the other co-owners.

Certain specifications must be fulfilled in order to create joint tenancies. For the creation of joint tenancy, specific language must be incorporated. Despite the fact that such language is contained in the conveying instrument, a joint tenancy may not exist. Their interests must vest at the same time.

The co-owners must have undivided interests in the whole property, not divided interests in separate parts. They derive their interest from the same instrument, and the estates must be of the same type and duration. Joint possession can be created either by a will or deed. It might not be created by intestacy because there has to be a source expressing joint tenancy. A joint tenancy is freely and easily transferable.

Joint tenancy denotes both the unity of titles and the unity of possession, whereas tenancy in common signifies simply the unity of possession. In joint tenancy, when a co-owner dies, his share in the property passes to the survivors, but in matters of tenancy in common, when a tenant in common dies, his interests in the property pass to his heirs or representatives. These two concepts are derived from English law. The idea of joint tenancy is unknown in India. The only exception is in cases of coparcenary between members of a Hindu Undivided Family (HUF). The concept of coparcenary is an essential part of the Hindu Undivided Family (HUF). Every co-owner has an inherent title to the joint property, where all of them together own the entire property.

Legal competency to make the transfer by co-owner

Section 7, when read with Section 44 of the Transfer of Property Act, 1882, explains the meaning of the expression ‘legally competent’. It states that every person who is a major, of sound mind, and is not otherwise disqualified under any law is competent to make a contract. As a consequence, the interest of a co-owner can be transferred, mortgaged, and leased to another co-owner or to an outsider. The fact that the partition has not taken place does not become an obstacle to the interests of a co-sharer.

What if one co-owner opposes the transfer of joint possession

As per Hindu law, a coparcener of a Hindu joint family can alienate his share of the joint family’s property for consideration. Section 45 of the Transfer of Property Act states that there must be a transfer of immovable property to more than one person. In cases of joint possession, when a co-owner is in exclusive possession of a joint plot of land and lets it out to a tenant without the consent of other co-owners, such a tenancy will not bind the latter. In those cases, the lease will be confined to the interest and share of the lessor.

What are the rights and liabilities of a transferee

The Transfer of Property Act, 1882, vests the transferee with various rights and liabilities, which are as follows:

Rights of transferee

Section 44 of the Transfer of Property Act, 1882, states various rights of the transferee and their safeguards regarding those rights. The following are the rights of the transferee after transfer-

Right to joint possession

Every co-owner of a property has proprietary rights over the entire property. The transferee becomes the co-owner after the transfer of the property by a co-owner, except for the dwelling house. In cases where a co-owner of the property is expelled from a joint possession, he has the right to file a suit for a joint possession instead of filing for partition.

Right to peaceful possession

Every co-owner has the right to peaceful possession of property. When possession of a property is transferred by the co-owner to the transferee, he cannot be disturbed by other co-owners until the final partition comes into force.

Right to make improvements

Every co-owner has the right to make construction on any portion of his land where he is authorised to make such improvements. But he is not entitled to make any construction on any other part of the joint property or to the prejudice of the other co-owners.

Right to enforce partition

Every co-owner has a right to enjoy his portion of the property separately and peacefully without any interference or interruption. So he can demand and enforce a partition. In fact, not only a transferee of an offer but also a transferee of any interest can do so. A lessee, a mortgagee, or a life tenant is entitled to seek partition subject to certain conditions that give effect to the transfer. In the event of partial partition, which prohibits the working out of equities between the co-owners is not maintainable.

In the case of Lalitha James and others v. Ajit Kumar and Others (1991), P.S. Chouhan, owner of a vast property, was unmarried and issueless. So he decided to give his property to his two sisters, Dayabai and Grace Pritabai, and executed a deed for the transfer of said property in their favour. No partition took place between them. The acres of land were divided among the three survivors of Grace Pritabai. The survivors are the respondents in this case. The third respondent sold her share to the second respondent, who started digging on the land to raise a structure after purchasing it. It was objected to by the first respondent. In the final judgment given by the Madhya Pradesh High Court, it was held that a purchaser of a joint property is not entitled to possession of any particular part of the joint property. He will be the co-owner of the property and not the exclusive owner of any particular portion of the joint property. Section 44 states that a transferee is not in a better position than the co-owner himself. The respondents can use their right to enforce the partition of the joint property only. The sale of the exclusive property will not be allowed. So he was given the right to appeal in this case.

Liabilities of transferee

The transferee also has certain liabilities that he has to fulfill. The rights are given to the transferee along with a few conditions and liabilities that attach at the date of transfer to the share or interest so transferred. According to the principles established by Mitakshara law, the right of an alien is limited to instituting a suit for partition to work out his equities based on the charges and encumbrances that affect the coparcenary property at the time of transfer. The transferee shall not be liable for the damages caused to the rest of the property by the transferor after the date of transfer. In short, the transferee gets all the rights of the transferor and is responsible for fulfilling all the duties of the transferor after the property is transferred to him.

Role of a dwelling house and undivided family

The basic concept of a dwelling house falls under the exception to the rule, which is mentioned in Section 44 of the Transfer of Property Act, 1882. If a portion of the dwelling house is transferred to an outsider, then the transferee cannot claim joint possession or any common part or enjoyment of the house. This Section states that since the transferee is not a member of that family, he will be unable to enjoy that property, which is a dwelling house belonging to an undivided family. He is only given a share in a residential house belonging to a joint family member and is not entitled to joint possession. This exception was framed to avoid any kind of hassle that may occur after the transfer of the share of a joint family to a stranger who may belong to a different caste or religion. This restriction is applicable even if only one male member of the family is present in the family dwelling house.

In order to award relief under this Section, two conditions must be fulfilled-

The transferee should be an outsider and not a member of the family, and
The property that is transferred should be a dwelling house.

In short, we can say that the transferee should be a stranger. In this situation, the transferee has the right to have the house partitioned based on Section 4 of the Partition Act, 1893. This Section states that an outsider transferee who claims partition by metes and bounds may be compelled, at the option of the other family members, to forgo his legal partition right and accept pecuniary compensation. The Partition Act, 1893, allows the co-owner to buy the share from the transferee at the valuation to be awarded by the court.

Dwelling house: According to the Partition Act, 1893, ‘dwelling house’ not only means a residential house but also includes all the adjacent buildings, gardens, cartilage, courtyard, orchard, and all other items that are essential for the favourable use of the house. If the dwelling house does not belong to an undivided family, Section 44 does not apply. The word ‘undivided family’ not only means Hindus but also includes a group of people who have blood relations and live in one house under one head.

Explanation of dwelling house with reference to several case laws

Durgapada Pai v. Debidas Mukherjee (1974)

In the case of Durgapada Pai v. Debidas Mukherjee (1974), the members of the family were living separately in different places. They are in the house for the purpose of Kali Puja. The place where they were living was previously used for the collection of paddy. The Calcutta High Court held that using a property for some specific reason and for a short term will not make it a dwelling house. A dwelling house is said to be one that has been an ancestral dwelling and the family members have not abandoned it.

Ramdayal v. Mannaklal (1973)

In the case of Ramdayal v. Mannaklal (1973), the defendant bought a house from the plaintiff’s father, who was put in possession thereof. The plaintiff filed a suit on the ground that the sale in favour of the defendant was without legal necessity, and so he claimed possession of the house. The Madhya Pradesh High Court stated that where a purchaser files a suit for partition within a specific time period, he can be in possession during the pendency of the suit. The defendant can possess the property if it is not in excess of the share of the co-owner. In the event that the co-owner transfers more than his share to the purchaser, he can only acquire the portion that belonged to the co-owner. The Court held that in this case, the property transferred was less than the share of the vendor, and therefore, the defendant was given possession.

Ashim Ranjan Das v. Bimal Ghosh (1992)

In the case of Ashim Ranjan Das v. Bimal Ghosh (1992), the plaintiff filed a suit for an injunction where the disputed property belonged to the four sons. The members of a Hindu Undivided Family were in possession of the house, where a co-owner leased out his share without effecting partition. The tenant then made an attempt to enter into possession jointly with members of his family. The Supreme Court granted a temporary injunction in the pending suit. However, it was held that a stranger purchaser is reduced to a trespasser. Section 4 of the Partition Act gives the right to partition to such a stranger. Hence, the appeal was dismissed.

Judicial pronouncements in matters relating to Section 44 of the Transfer of Property Act

Baldev Singh v. Darshani Devi (1993)

In the case of Baldev Singh v. Darshani Devi (1993), the question that arose was whether a co-owner who does not have actual physical possession of the property can transfer a valid title to a specific portion of land. The Himachal Pradesh High Court observed that the remedy for the plaintiff was to get a share of the property allotted after the partition or to claim compensation or damages from the defendant, though he had no right to claim a decree for possession against the defendants.

Rukmani and Others v. H. N. Thirumalai Chettiar (1985)

In the case of Rukmani and Others v. H. N. Thirumalai Chettiar (1985), the plaintiff questioned the order of the trial court, which refused to grant an injunction. In the opinion of the plaintiff, the respondent, who purchased only 2/3rd of the suit property, was trying to do huge constructions in the entirety of the suit property before actually having 2/3rd of the share divided. The Madras High Court held that a co-owner cannot be allowed to cause prejudice to other co-sharers and issued an injunction restraining the respondent from moving forward with the construction on that particular site during the pendency of a suit for partition filed by the other co-owners.

Hazara Singh and Anr. v. Faqiria (2004)

In the case of Hazara Singh and Anr. v. Faqiria (2004), the question was whether the plaintiff could declare him the owner of the property on the basis of adverse possession of land. The Punjab and Haryana High Court held that the possession of a co-owner is the possession of all the co-owners. It was concluded that the possession cannot be adverse unless the persons in possession deny their right to knowledge. A co-sharer possesses the property on behalf of all the other co-owners. Therefore, his possession of the entire property cannot be deemed to be adverse.

Srilekha Ghosh (Roy) and Anr. v. Partha Sarathi Ghosh (2002)

In the case of Srilekha Ghosh (Roy) and Anr. v. Partha Sarathi Ghosh (2002), the property of the deceased passed to his family members. The respondent and his mother became joint owners of the property based on the provision in Section 3(3) of the Hindu Woman’s Right to Property Act, 1937. When the Hindu Succession Act, 1956, came into force, the widow’s interest became absolute. Thus, the respondent and his mother became co-owners of the property.

There is no law that states that a co-sharer must only sell his or her part to another co-sharer. Hence, strangers or outsiders can also purchase shares in a dwelling house. Section 44 of the Transfer of Property Act, 1882, states that if a person is not a member of the family, he does not get a right to joint possession or common enjoyment of that house when the transferee of a share of a dwelling house transfers his property to him. Section 4 of the Partition Act, 1893, has no application in this particular case. The daughters cannot be called strangers to the family. They have acquired an interest in the property as a gift from their mother. As a consequence, they succeeded their mother. The petition filed by the defendant under Section 4 of the Partition Act was not maintainable in that situation and was, therefore, dismissed.

Conclusion

Section 44 discusses the legal position of the co-owners of the property. When one of the co-owners of a property passes his share to another, the assignee obtains all the rights with respect to that property. Therefore, it can be concluded that when the transferor transfers his share to another person, the transferee takes the place of the transferor and gets all the rights and liabilities of the transferor. Although there is one exception that states that if the transferee happens to be a stranger, he cannot claim joint possession of a family dwelling house unless and until partition takes place. This Section deals with transfers by co-owners, which can be done by will or deed.

Frequently Asked Questions (FAQs)

What are the various modes of transfer of property?

Property under the Transfer of Property Act, 1882, can be transferred through various modes, such as sale, exchange, gift, mortgage, lease, and by creating an actionable claim.

What is the co-owner’s right against trespassers?

The co-sharer has the right to sue a trespasser in ejection without impeaching the other co-owners.

What is the right of the Muslim co-heirs in the case of partial partition?

Under Muslim law, where the property has been passed on to a number of co-heirs, a definite fraction of every part of the estate belongs to all the co-heirs. In that situation, any co-heir can ask for the recovery of his share of the property from another co-owner.

Whether a co-owner can make a transfer without the consent of other co-owners?

A co-owner of a property can make a transfer of a commercial property to any outsider without the consent of the other owner. Even though it is an undivided share, the co-owner has all rights to enter into any sale, mortgage, or lease with a stranger.

Can an owner remove a co-owner?

An owner can remove a co-owner from the deed by removing his name from the deed of his house and replacing it with the relevant beneficiaries. The earliest way of removing his name from the deed of the owner’s house is by executing a release deed or relinquishment deed in his own favour. This will make him the absolute owner of the property.

How to remove a co-owner from a house title in India?

If an owner wants to remove a co-owner from the house title, he needs to file a suit for declaration before the civil court and produce evidence therein to prove that payments were made entirely by him. Therefore, the co-owner’s name must be deleted from the sale deed.

Which rights of ownership cannot be transferred?

The ownership rights that cannot be transferred are as follows-

The right to transfer an easement cannot be allowed apart from the dominant heritage.
The right to enjoyment of an interest in the property is confined to the owner personally and cannot be transferred by him.
The right to future maintenance, however arising, secured, or determined, cannot be transferred.

References

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