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Report No. 70

40.11. Evolution of Hindu law.-

Long before the Act was passed, courts in India had laid down that in certain parts of India, Hindu law recognised the rights of a co-parcener even where he was not the father or manager, to alienate his interest in the joint family property, at least by way of sale or mortgage. As early as 1813, the right was recognised by Sir Thomas Strange.1 The right to partition at the instance of the alienee began slowly to be recognised and was settled by 1863, both in Madras2 and in Bombay.3

In this connection, the form of decree granted by the Privy Council (Sir James Colville) in Deen Dyal4 is of interest. Though it was a case of the rights of an execution purchaser, it was expressly observed that judicial decisions had affirmed the general right of one member of a joint family to dispose of his share in his joint estate by voluntary conveyance without the concurrence of his co-parceners-the reference was to the Madras and Bombay cases.

A declaration was granted to the purchaser at the execution sale that he had acquired the share and interest of the judgment-debtor in the property and that he was entitled to take such proceedings as he shall be advised to have that share and interest ascertained by partition. One cannot fail to notice the substantial similarity between this declaration and the provisions of section 44.

1. Ramaswami v. Sehsadiri, 1827 Strangers Notes of Cases, (Vol. 2), 234.

2. Veeraswamy v. Aayaswamy, (1863) 1 Mad HCR 471.

3. Damodar Vithal v. Damodar Hari, (1863) 1 Born HCR 182.

4. Deen Dyal v. Jagdip Narain Singh, (1876-1877) ILR 3 Cal 198 (CB).

40.12. Landmark case in Bombay.-

The year 1874 saw a landmark in the law-a dedsion of West and Nanabhai Haridas, JJ.1 This was a case of mortgage by two members of an undivided Hindu family. In execution of the mortgage decree, the property was purchased by the plaintiff, who then instituted a suit against the third member of the undivided family for possession of the extent which he had purchased in the court sale. It was held that the right of the purchaser was to sue for partition and not for recovery of possession.

But it was also observed that while, in an undivided family, the share of a person in the estate as a whole could be ascertained only by taking a general account and making a distribution in accordance with its results, yet, in making that distribution it would only be equitable that the share purchased by the auction purchasers be so made up as to embrace wholly or so far as possible, what the auction purchaser has purchased as his. Similar principles were laid down by the Privy Council in 18792.

1. Pandurang v. Bhaskar, (1874) 11 Born HCR 72.

2. Suraj Bansi v. Shiv Prasad, 1879 ILR 5 Cal 148 (PC).

40.12. Madras view.-

The subject received an illuminating treatment in a judgment of Bhashyam Ayyangar J. in Madras.1 It was there stated to be settled law that the purchaser can enforce the sale by a partition of the entire family property and if, in such a partition, the property sold can, with due regard to the interests of the other shares and to the debts due by the family and to an equitable allotment of the various items of family property, be wholly allotted to the vendors, the purchaser will be entitled to the whole property which the vendor professed to convey to him. Of course, it would not be strictly accurate to describe the interest of a co-parcener in an undivided family as his "share". But this expression is ordinarily used as meaning the interest of a co-parcener in the undivided property.2

1. Saigiri Ramaiya v. Venkataramaiya, 1902 ILR 25 Mali 690 (FB).

2. Peranakayam v. Shea Ram, AIR 1952 Mad 419 (432), para. 25.

40.13. Position in England before 1926.-

In England, before 1926, it was possible to hold land under four types of "co-ownership", namely,

(a) joint tenancy;

(b) tenancy in common;

(c) co-parcenary;

(d) tenancy by entireties.

The terms "co-ownership" or "concurrent interest" would each be used to include all the four forms of co-ownership.1

1. Megarry and Wade Real Property, (1966), p. 408.

40.14. Joint tenancy in England.-

As regards joint tenancies, joint tenants, as between themselves, can have separate rights, but as against everyone else, they have no separate right1.

The right of survivorship and the "four unities"-unity of possession, unity of interest, unity of title and unity of time-along with survivorship, were the principal features of a joint tenancy. In a tenancy in common, the tenant's interests could arithmetically be separate, though the property has not yet been divided among them. Then, there is no right of survivorship and of the four unities predicated of a joint tenancy, only the unity of possession is essential in a common tenancy2.

1. Megarry and Wade Real Property, (1966), p. 408.

2. Megarry and Wade Real Property, (1966), p. 408.

40.15. Co-parcenary in England.-

Co-parcenary, in England, arose mainly when there was the death of a person interstate before 1926, and his real property descended to two or more persons who were not males. They took the land as "parceners" or "co-parceners". For example, where two or more females inherited the land of an interstate, co-parcenary would arise. In the theory of law, they constituted a single heir1. Each co-parcener held a distinct but undivided share, which might be equal or unequal to the size of the share of others.

The co-parcenary could come to an end, inter alia, by partition or by alienation. Where the co-parcener alienated his share, it was forthwith held under a tenancy in common, the other tenants remaining co-parceners inter-se. At common law, the remaining co-parceners could enforce a partition, but the purchaser, being a tenant in common, could note.

1. Megarry and Wade Real Property, (1966), p. 441.

40.16. Position in England after 1925.-

After 1925, by reason of the Law of Property Act, lands which would have previously been held in co-parcenary or tenancy in common or joint tenancy-i.e., every case of undivided share-would now be held subject to a statutory trust for sale.1 The legislation of 1925 further enacted that an undivided share in land shall not be created except behind a trust for sale. It also abolished tenancy by entirety, previously existing in regard to husband and wife.

Of course, the "statutory trustees" are not necessarily bound to sell the property because, instead of selling it, they can partition the land among the beneficiaries entitled2. Disputes as to the appropriate date of sale are to referred to the court which hears the application3. It is only with the consent of all the trustees that the sale can be postponed.

1. Sections 1-6 and sections 34-36, Law of Property Act, 1925, read with Schedule IV, para. 1(10).

2. Section 37, Law of Property Act, 1925.

3. Section 30, Law of Property Act, 1925.

40.17. Section 44, second paragraph-principle.-

To revert to section 44, the principle of the second paragraph can be deduced from the judgment of Westropp, C.J. in a Bombay case1:

"We deem it a far safe 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 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."

1. Balaji v. Ganesh, 1881 ILR 5 Born 499 (504) (Westropp, C.J.).

40.18. Second paragrap-principle.-

The principle of the second paragraph is that a stranger purchaser cannot have joint possession of the family dwelling-house. While this paragraph takes away the right of a stranger purchaser of a share of a dwelling-house belonging to an undivided family to ask for joint possession along with other co-owners, but, at the same time, it does create a right in favour of the other co-owners of the dwelling-house who are affected by the sale, to ask for an injunction restraining the stranger purchaser from exercising any act of joint possession with them in respect of the joint family residence.

The stranger purchaser has certainly a title to the share of the dwelling-house purchased by him; but his remedy lies in a suit for partition and he can possess his own share by instituting a suit for partition unless, of course, he is pre-empted under section 4 of the Partition Act1.

1. Alekha v. Jagabandhu, AIR 1971 Ori 127.

40.19. "Co-owner"-meaning of.-

Reverting to the section, the expression "co-owner" in section 44 is not defined, but it is wide enough to cover almost every case where more than one person is interested in the ownership and the interests are of a concurrent nature and of a similar nature, even if not arithmetically equal. The principle of the section is that of substitution, but on certain conditions. The transferee steps into the shoes of the transferor who is a co-owner; but with certain restrictions.

40.20. Dwelling-house.-

Some of the important expressions may now be dealt with. The word "dwelling-house" does not mean a dwelling-house occupied by the undivided family which owns it; the words "belonging to an undivided family" do not mean that the house must be occupied temporarily or permanently by the undivided family or that they be joint in mess1.

1. Subramanya v. Ghannu, AIR 1935 Mad 628.



The Transfer of Property Act, 1882 Back




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