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Report No. 70

Chapter 40

Transfers By Co-Owners

Section 44

40.1. Introductory.-

Cases of transfers by a person who is not the real owner having been discussed in the preceding section, the Act now proceeds to deal with transfer by a person who, though he has an interest in the property, is only a co-owner. In such a case it becomes necessary to work out the rights of the other co-owners who are not parties to the transfer and also of the transferee who would certainly have an interest in implementing his transfer and exercising the rights of the co-owner which are transferred to him, in so far as such exercise is practicable.

We shall refer later to the background of the section and its utility in the field of Hindu law, but it will be appropriate to mention that the section is not confined to an alienation by one of the co-parceners in an undivided Hindu family. At least the first paragraph of the section is wide enough to cover every case of co-ownership. An undivided Hindu family or coparcenary is not the only case governed by the section.

40.2. Aspect of partial interest.-

Section 44, with the three following sections (45 to 47) sets out the law relating to the transfer of property where the transferor or transferee possesses or obtains only a partial interest1 therein. As the transferee acquires all the right, title, and interest of the transferor conveyed to him, it follows that he may claim joint possession like his predecessor-in-title, but since the presence of a stranger might lead to serious breaches of peace, these sections confer on certain parties, the right to partition. The second paragraph has been inserted in accordance with the judgment of Westropp, C.J., who observed:2

"We also deem it a far safer practice, and less likely to lead to serious breaches of peace, to leave a purchaser to a suit for partition, than to place him by force in joint possession with members of a Hindu family, which may be not only of different caste from his own, but also different in race and religion."

1. Gour.

2. Balaji v. Ganesh, 1880 ILR 5 Born 504.

40.3. Right of purchaser.-

A purchaser of a co-parcener's undivided interest in joint Hindu family property is not entitled to separate possession of what he has purchased. His only right is to sue for partition of the property and to ask for allotment to him of that which on partition, might be found to fall to the share of the co-parcener whose share he has purchased. His right to possession would date from the period when a specific allotment was made in his favour. The purchaser is not entitled to possession of the interest purchased by him till the partition has been made1.

1. Sheo Nath v. Krishna Kumari, AIR 1973 All 496.

40.4. Section 44.- This principle is put in legal language in section 44. It reads-

"44. Where one of two or more co-owners 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 a dwelling-house belonging to an undivided family is not member of the family nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house".

40.5. Second paragraph.-

The second paragraph to the section did not find place in the Bill of 1879, but was subsequently added by the Select Committee with a view1 to preventing a stranger from claiming joint possession of a family dwelling-house. In cases determined before the Act, it was held that according to the law as administered in Bengal, the purchaser at a Court-sale of the rights of one member, may be entitled to be put into physical possession even of a part of the family house, which could only be obviated by purchase of the right by the other members at the sale, or by a suit for partition.2 The inconvenience and in inequity of permitting a stranger to intrude himself upon the privacy of a joint Hindu or Mohammedan family residence was manifest, and the second paragraph was accordingly considered necessary.

1. Gour.

2. Ramtonoo v. Gobindo, 1857 SDA 1585; Koonwar Bijoy v. Shama Soonduree, 2 WR 30 (Mis) FB; Eshan Chunder v. Nund Coomar, 8 WR 239; cited in Gour.

40.6. Scope of discussion.-

Having regard to the fact that the section deals with a matter affecting the mode of living of almost every inhabitant of the country, we propose to deal with it at length. After considering a few general propositions as to its significance and scope, we shall discuss the connected provision in section 4 of the Partition Act, 1893. We shall then revert to a more detailed treatment of certain specific questions arising out of a few important ingredients of section 44 and recommend amendments that will be intended mainly to make the section self-contained in its expression and more helpful to lawyers as well as to laymen.

40.7. Significance.-

The section provides for partition as a means of making the possessory right available. This is its significance.

40.8. Scope.-

The section applies to all kinds of transferees including mortgages and lessees. This shows its wide scope.

40.9. The principle of the section can be applied to involuntary sales as a rule of equity, justice and good conscience1.

Hence, a suit by an auction-purchaser for joint possession against the other co-parceners in the family dwelling-house would not lie.

1. Jagatbandhu v. Ishzvar Chandra, AIR 1948 Cal 61.

40.10. Hindu la.- Pre-1929 position not affected.-

The Act-and therefore section 44-now applies to Hindus. Of course, the fact that by the amendment of 1929, the section is made applicable to Hindus and Buddhists does not mean that the right of an alienee to institute a suit for partition to work out his purchase is enlarged, or that the principles previously evolved by the courts in this context are effected.1 The section does not override the provisions of Hindu law.2 At the same time, it is to be noted that in regard to those areas where a right of alienation by co-parcener was recognised, the section is substantially in conformity with the previous law.

1. Pernakayam v. Shiv Ram, AIR 1952 Mad 419 (434), para. 28.

2. Laxminarasamma v. Rangaviangakamma, AIR 1964 Ori 43 (45).

The Transfer of Property Act, 1882 Back

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