Transfers by Co-owners and by Persons Having Distinct Interests
Chapter Twenty-One
Syllabus topic 1.2, "General principles of transfer of property"
Pages 106 to 110 of 378
In one line
A co-owner can sell his own share without asking the others, and the buyer steps into his shoes, except that a stranger cannot force his way into a family dwelling-house.
In exam wording: section 44 provides that where one of two or more co-owners of immovable property transfers his share, the transferee acquires the transferor's right to joint possession and to enforce a partition, subject to the conditions and liabilities affecting that share at the date of the transfer; but where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, he is not entitled to joint possession or other common or part enjoyment of the house.
Why a co-owner may sell at all
Co-ownership means two or more people own the same property at the same time, each holding an undivided share. The word undivided is the key: a man with a one-third share does not own a particular third of the land; he owns a third of every inch of it.
It follows that he can deal with his own share. He does not need the others' consent, because he is not disposing of anything of theirs. What he cannot do is sell a specific part of the land as though it were his, since until partition no part is.
Section 44: what the transferee gets
The transferee acquires, as to that share 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
- the transferor's right to enforce a partition;
- subject to the conditions and liabilities affecting, at the date of the transfer, the share so transferred.
The last clause is the practical one. A buyer takes the share as it stood, with every burden already on it. If the share was mortgaged, or subject to a family arrangement, or answerable for a debt, the buyer takes it that way.
The right to enforce a partition is what makes the purchase worth anything. Joint possession with strangers is usually intolerable, so the buyer's real remedy is to sue for partition and have his share separated.
The dwelling-house exception
The second paragraph provides that where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in the section entitles him to joint possession or other common or part enjoyment of the house.
The reason is social rather than proprietary, and it should be stated as such in an answer. A dwelling-house occupied by an undivided family is not merely an asset. Forcing an outsider into shared occupation with a family, often with women and children of the household, would be an intrusion the law is not prepared to compel. So the buyer's money is protected but his entry is not.
Transfers by Co-owners and by Persons Having Distinct Interests
Three points on its scope.
It applies only to a dwelling-house, not to a shop, a field or a godown.
It applies only where the transferee is not a member of the family. A brother who buys another brother's share is a member and may enter.
It denies joint possession, not the purchase. The transfer itself is perfectly good. The stranger buys a valid share and may sue for partition; what he may not do is move in while the property is still undivided. That is the distinction on which the answer turns.
Sections 45, 46 and 47: dividing money and shares
These three deal with arithmetic and all three are default rules displaced by a contract to the contrary.
Section 45: joint transfer for consideration. Where immovable property is transferred for consideration to two or more persons and the consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, entitled to interests in the property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund.
The principle is that the property follows the money. Where they contribute from separate funds, their shares follow their contributions.
Section 46: transfer by persons having distinct interests. Where immovable property is transferred for consideration by persons having distinct interests in it, the transferors are, in the absence of a contract to the contrary, entitled to share the consideration equally where their interests were of equal value, and proportionately to the value of their respective interests where those were unequal.
Illustration (b) is the clearer of the two: A has a life interest in a village and B and C the reversion; they sell for Rs. 1,000; A's life interest is valued at Rs. 600 and the reversion at Rs. 400; A takes Rs. 600 and B and C take the balance.
Section 47: transfer by co-owners of a share in common property. Where several co-owners transfer a share without specifying from which of their shares it is to come, the transfer takes effect as among the transferors on their shares equally where their shares were equal, and proportionately where unequal.
The Act's illustration: A owns an eight-anna share and B and C four annas each in a village; they transfer a two-anna share to D without saying whose it is; to give effect to the transfer, one anna is taken from A and half an anna from each of B and C.
Transfers by Co-owners and by Persons Having Distinct Interests
Notice that sections 46 and 47 are mirror images. Section 46 divides the money the transferors receive; section 47 decides whose share the transferred interest comes out of.
A worked example
Three brothers, Prem, Qadir and Rohan, inherit two properties as co-owners in equal one-third shares: a dwelling-house at Satara where all three families live, and a shop in the market.
Prem sells his one-third of the shop to Sunil, a stranger. Section 44 applies in full. Sunil acquires Prem's right to joint possession of the shop and his right to enforce a partition, subject to any conditions and liabilities affecting the share at that date. If Prem had already mortgaged his share, Sunil takes it mortgaged.
Prem sells his one-third of the dwelling-house to Sunil. The sale is valid and Sunil owns the share. But the house is a dwelling-house of an undivided family and Sunil is not a member of it, so the second paragraph of section 44 denies him joint possession or any common or part enjoyment. His remedy is to sue for partition, and until the house is divided he stays out.
Prem sells that same share to Qadir instead. Qadir is a member of the family, the exception does not apply, and he takes joint possession.
All three sell a one-sixth share of the shop to Tanvi without saying whose share it comes from. Section 47 applies: their shares being equal, the one-sixth is taken from the three equally, one-eighteenth from each.
All three sell the whole shop for Rs. 90 lakh. Their interests being of equal value, section 46 entitles them to share the price equally, Rs. 30 lakh each. Had Prem held a life interest and the others the reversion, the price would have been divided according to the values of those interests.
What it does NOT mean
A co-owner does not need the others' consent to sell his share. He is disposing of his own undivided interest.
He cannot sell a specific piece of the land. Until partition no co-owner owns any particular part.
The dwelling-house rule does not invalidate the sale. It denies the stranger joint possession only, and leaves him his suit for partition.
It does not apply to every family property. Only to a dwelling-house of an undivided family, and only against a transferee who is not a member.
Sections 45, 46 and 47 are defaults. Each yields to a contract to the contrary.
Section 45 does not divide by headcount. It follows the interests in the fund from which the price was paid.
Distinctions
| Transferee of a share in a shop or land | Transferee of a share in a family dwelling-house, not a family member | |
|---|---|---|
| Validity of the transfer | Valid | Valid |
| Right to joint possession | Yes | No, second paragraph of s.44 |
| Right to enforce partition | Yes | Yes |
| Takes subject to existing conditions and liabilities | Yes | Yes |
Transfers by Co-owners and by Persons Having Distinct Interests
| Section 46 | Section 47 | |
|---|---|---|
| What is divided | The consideration received by transferors having distinct interests | The share transferred, as among the transferors |
| Basis | Equally if their interests were of equal value, otherwise proportionately | Equally if their shares were equal, otherwise proportionately |
| Displaced by | A contract to the contrary | The transfer specifying which share it comes from |
Quick revision
- A co-owner holds an undivided share and may transfer it without the others' consent, but cannot sell a specific part of the property.
- Section 44: the transferee gets the transferor's right to joint possession and to enforce partition, subject to the conditions and liabilities affecting the share at the date of the transfer.
- Second paragraph of section 44: a transferee of a share of a dwelling-house of an undivided family who is not a member of the family gets no joint possession. The sale is still valid, and his remedy is partition.
- Section 45: joint purchasers take interests matching their interests in the common fund that paid the price.
- Section 46: transferors with distinct interests share the price equally or in proportion to the value of their interests.
- Section 47: an unspecified share transferred by several co-owners comes out of their shares equally or proportionately.
- Sections 45, 46 and 47 all yield to a contract to the contrary.
Test yourself
1. Can one co-owner sell his share without the others agreeing? Yes. He owns an undivided share and may transfer it. What he cannot do is transfer a specific portion of the property, because until partition no co-owner owns any particular part.
2. What does the transferee of a co-owner's share acquire under section 44? The transferor's right to joint possession or other common or part enjoyment, and his right to enforce a partition, so far as is necessary to give effect to the transfer, subject to the conditions and liabilities affecting the share at the date of the transfer.
3. A stranger buys one brother's share in a family dwelling-house. Can he move in? No. The second paragraph of section 44 denies joint possession or common or part enjoyment to a transferee of a share of a dwelling-house of an undivided family who is not a member of that family.
4. Is such a sale void? No. It is perfectly valid and the buyer owns the share. Only his right to joint possession is withheld, and he may sue for partition.
Transfers by Co-owners and by Persons Having Distinct Interests
5. Would the answer differ if the buyer were the seller's cousin living in the house? Yes. The exception applies only where the transferee is not a member of the family, so a member takes joint possession in the ordinary way.
6. Three co-owners with equal shares sell a six-anna share without saying whose it is. How is it taken? Two annas from each, under section 47, their shares being equal.
7. A has a life interest worth Rs. 600 and B and C the reversion worth Rs. 400. They sell for Rs. 1,000. How is the price divided? A takes Rs. 600 and B and C take Rs. 400 between them, under section 46, their interests being of unequal value and the price being divided proportionately.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.