Transfer by Co-Owner Under The Transfer Property Act

Introduction

In everyday language, the phrase “property” refers to a person’s financial standing. An individual holds a piece of property in order to profit from it. When two or more people have joint title to the property, such as in a coparcenary, where the male members and now even girls share a shared and equal stake in the ancestral property, any co-owner can sell his portion to a stranger or another co-owner.

Defining Co-Owner

A co-owner is a person or a group who owns a piece of property with another person or organisation. Every co-owner shall possess equal rights to use the property. There are situation, where one property have more than one co-owner, and when one co-owner dies, the title will automatically pass to the dependants. The co-owner is entitled to all basic elements of ownership that are- right of Possession, right to utilize and dispose the property.

Kinds of Co-Ownership

The term ‘ownership’ encompasses a vast array of rights, privileges, and powers in relation to the property in question. There are many types of ownership such as “absolute, limited, sole ownership, co-ownership, vested ownership, contingent ownership, Corporeal and incorporeal.” Under Indian law, a Co-Owner is entitled to three key aspects of ownership: the right to own, enjoy, and dispose of. As a result, if a Co-Owner is deprived of his property, he has the right to reclaim it.

[1]The following are the many forms of co-ownership:

1. Tenants in Common: Tenancy in common (TIC) refers to a situation in which two or more persons share ownership of a property or piece of land. Each separate owner may have equal or differing control over the overall property, which might be commercial or residential. In case of death of tenant in common, the share of their property transfer to their estate, with all the rights and liabilities. A scenario in which two or more people share ownership of a property or piece of land is known as tenancy in common . Each individual owner may have equal or varying levels of authority over the entire property, which might be commercial or residential.
2. Joint Tenants: In case of joint tenant, after the demise of of any one of joint tenant, his interest of property passes to the surviving joints . Here each of the tenants share equal share or interest. Some of essential features of joint tenant are-
   • Unity of possession: Each renter has the right to possession and enjoyment of the entire property.
   • Uniformity of Interest: Each joint tenant owns the same sort of property and for the same amount of time.
   • Unity of time: The tenancy interest in a shared tenancy must vest at the same time.
   • Unity of title: Joint tenancy interests must be derived from the same source, such as a will or deed.
3. Tenancy by the Entirely: This concept provides right of survivorship, and require it necessitates the four unifies of time, possession, title, and interest, as well as the fifth unity of marriage. This is entirely for spouses, and does not allow to transfer his interest to any third party. The tenancy is only terminated by either divorce, death or by mutual agreement, and a tenancy wich is terminated becomes a tenancy in common.

In a case of “Konchunju Nair vs Koshy Alexander”, the court would grant a right, in a case where co-owner wants to build a permanent house on the property, he is entitled to do so, but when the division will take place, the co-owner can demand his portion of the property.

Co-Owner’s Legal Authority to Make Transfer

Section-7 of Transfer of Property Act,1882, clearly states that every person is competent to enter into a contract i.e.- major and sound mind is qualified to enter into a contract.

Section-44 of Transfer of Property Act,1882, “Where one of at least two co-proprietors of undaunted property lawfully skilled for that benefit moves his portion of such property or any interest in that, the transferee obtains, as to such share or interest, such a long way as is important to give impact to the exchange, the transferors right to joint belonging or other normal or part delight in the property, and to authorize a segment of something similar, however dependent upon the conditions and liabilities influencing, at the date of the exchange, the offer or interest so moved.”

A coparcener of a Hindu Joint Family can separate his portion of the Joint Family Property for consideration, according to the legislation in some locations. A coparcener in this situation is a legally competent individual. However, in some Mitakshara coparcenary instances, the permission of other coparceners is necessary before such a transfer may be made. In other situations, a tenancy will not bind co-sharer landlords if one co-owner has sole control of a common land piece and rents it out to a tenant without the approval of co-sharer landlords. In this situation, the lease will be limited to the lessor’s interest and portion.

A co-owner who is not in real physical possession of a piece of land cannot transmit a legitimate title to that share of the property, according to the Court in [2]Baldev Singh v. Darshani Devi. The transferee’s options include obtaining a share of the property assigned after the division, obtaining a decree of joint possession, or claiming reimbursement from the co-owner.

In the case of  [3]Hazara Singh v. Faqiria, the High Court of Punjab and Haryana found that a co-possession owner’s is possession of all co-owners since he had hostile possession of a peaceful undisturbed possession by the other co-owners. It can’t be harmful to them unless the person in possession refuses to acknowledge their right to know. If a co-sharer owns the entire property, his ownership cannot be considered unfavourable since he owns it on behalf of all other co-sharers.

The High Court of Madras decided in [4]Rukmini and others v. H.N T. Chettiar that a co-sharer cannot be permitted to create prejudice to the other co-sharers by erecting a substantial structure while the other co-sharers are pursuing a partition suit.

Transferee’s Rights and Liabilities

Section 44 of transfer of property act, deals with the rights of transferee. Here are the following rights after the transfer-

1. Rights to Joint Possession: The co-owner enjoys exclusive ownership of the entire property. Except for a dwelling place, the transferee becomes a co-owner and receives all rights associated with joint ownership. If a co-owner or his transferee is ejected from joint possession, he has the right to sue for joint possession and is not required to file for partition.
2. Right to peaceful possession: After possession of the property, of saperate plot, the co-owner’s transferee cannot be disturbed by any another co-owner until final partition is done.
3. Right to make improvement:  Co-owners can decide whether or not he can build on any section of the land, and he is authorised to do so. He is not allowed to build on any other part of the joint property or to the prejudice of the other co-owners.
4. Right to enforce partition: In all instances of joint organization, each party has an option to request and authorize a parcel; as such an option to be put in a situation to partake in his own right independently without interference and impedance by others. Under this segment, not just a transferee of an offer in the property however a transferee of any interest can sue for segment. A resident, a mortgagee and surprisingly a daily existence occupant is qualified for look for segment that far is important to give impact to the exchange. A case of segment may be denied on the ground of burden. Segment doesn’t rely upon the span of right. In a praised case a month to month inhabitant was likewise qualified for segment just to secure the freedoms of the offended parties. In any case, a parcel affected at the example of an individual having a brief interest, endures just till the expiry of that interest.

The transferee additionally gets the liabilities with every one of the advantages. The freedoms of the transferee are dependent upon the conditions and liabilities that join at the date of the exchange to the offer or interest so moved.

Judicial Approach

[5]Dorab Cawasji Warden v. Coomi Sorab Warden

Facts: A property was bought by father and mother of Plaintiff. Later on mother became kicked the bucket then litigant and his dad became joint proprietor of the whole property. Further they changed over joint tenure into an occupancy in like manner. Later on father move his unified offer into the property to his another child. Subsequently, the litigant and his sibling became occupant in like manner in regard of the property yet on the passing of the sibling, his widow and two minor children sold their unified offer in the property. The litigant initiated a suit against his sibling’s better half and kids on the ground that the suit property was an abode house having a place with a unified family wherein they all resided in their separate segments. Here after deal, the purchaser reserved no privilege to live as an inhabitant in the same way as the litigant.

Decision: The court determined that this transfer falls under the second paragraph of Section 44, and that the buyer has no right to reside in the dwelling place.

[6]Rukmani v. H.N.T Chettiar

Facts: Here transferee had bought just 2/third offer in the suit property from one of the co-proprietors then that transferee further continued to set up tremendous developments on property without having parcel by dispenses and limits. The offended parties, implies other co-proprietors needed an order for controlling the transferee from doing as such then Single adjudicator of court would not allow directive. Be that as it may, when the matter came up before the Division seat overruled the above judgment it didn’t endorse above view and award order.

Issue: regardless of whether a co-sharer (the transferee) having 2/third offer in property could be permitted to set up developments or not…?

Decision: Madras High Court held that transferee, being a co-sharer, can’t be permitted to make bias the other co-sharers by setting up developments during the pendency of a suit for segment recorded by the co-proprietors.

[7]Balaji v. Ganesh

In this case the principle of second paragraph has been laid down in the following words:

“It is a far safer practice and less likely to lead to serious breaches of peace, to leave a purchaser to a suit for transition 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.’’

Conclusion

In this manner, where one of the few co-proprietors moves his portion, the transferee obtains as to such share thus far as important to give impact to the exchange:

• The transferors’ on the right track to joint belonging or other normal or part satisfaction in the property, and
• The transferors’ on the whole correct to implement a piece of something similar.

It ought to, nonetheless, be noticed that these freedoms would be dependent upon the conditions and liabilities influencing the offer so moved as on the date of the exchange.

There is one exemption given constantly passage to the segment. The special case is that where the offer moved is a portion of a home house having a place with a unified family and the transferee isn’t an individual from such family, the transferee will not be qualified for joint belonging.

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References:

[1] Different Types Of Co-Ownerships|How To Own Property Jointly, , https://www.proptiger.com/guide/post/examining-the-4-types-of-co-ownerships (last visited Dec 9, 2021).

[2] Baldev Singh vs Smt. Darshani Devi And Anr. on 21 May, 1993, , https://indiankanoon.org/doc/1532138/ (last visited Dec 9, 2021).

[3] Hazara Singh And Anr. vs Faqiria (Deceased) Through L.Rs. on 25 May, 2004, , https://indiankanoon.org/doc/894130/ (last visited Dec 9, 2021).

[4] Rukmani And Ors. vs H.N. Thirumalai Chettiar on 26 September, 1984, , https://indiankanoon.org/doc/472605/ (last visited Dec 9, 2021).

[5] Dorab Cawasji Warden vs Coomi Sorab Warden & Ors on 13 February, 1990, , https://indiankanoon.org/doc/1822024/ (last visited Dec 9, 2021).

[6] Rukmani And Ors. vs H.N. Thirumalai Chettiar on 26 September, 1984, supra note 4.

[7] Balaji Anant Rajadiksha v. Ganesh Janardan Kamati | Bombay High Court | Judgment | Law | CaseMine, , https://www.casemine.com/judgement/in/58117e322713e1794786b0ec (last visited Dec 9, 2021).