Transfer by Co-owners

Introduction

A property may be owned by more than one person at the same time. Such persons are called co-owners. The law allows co-owners to transfer their share in the property, but certain rules apply to protect the rights of others.

Meaning / Definition

Co-ownership means ownership of property by two or more persons. Each co-owner has a share in the property and enjoys rights like possession, use, and transfer.

Under Section 44 of the Transfer of Property Act, a co-owner can transfer his share, and the transferee (buyer) gets the same rights as the transferor.

Modes or Types

Joint Tenancy

All co-owners have equal shares. On death of one co-owner, his share passes to the surviving co-owners.

Tenancy in Common

Co-owners have shares which may or may not be equal. On death, the share passes to legal heirs, not to other co-owners.

Tenancy by Entirety

This exists only between husband and wife. One spouse cannot transfer share to a third party. Transfer is allowed only between spouses.

Transfer of Share by Co-owner

A co-owner can transfer his share to another person. The transferee gets:

• right to joint possession
• right to enjoy the property
• right to seek partition (division of property)

Restriction in Dwelling House (family house)

If the property is a dwelling house of an undivided family, and the transferee is not a family member, he cannot claim joint possession or shared enjoyment.

Transfer by Multiple Co-owners (Section 47)

If co-owners transfer a share without specifying from whose share it comes:

• if shares are equal → transfer is equal
• if shares are unequal → transfer is proportionate

Important Case Law

Durga v Debidas

The court held that temporary or occasional use of a property does not make it a dwelling house. There must be a permanent family residence.

Baldev Singh v Darshani Dev

The court held that if the co-owner is not in possession, the transferee can claim partition or compensation instead of possession.

Distinction / Comparison

Joint Tenancy vs Tenancy in Common

• Joint tenancy → equal shares and right of survivorship
• Tenancy in common → shares may differ and pass to heirs

Co-owner vs Transferee

• Co-owner has original ownership rights
• Transferee gets only those rights which the co-owner had

Practical Example

A, B, and C jointly own land. C sells his share to D.

D becomes a co-owner with A and B. He can:

• use the property jointly
• ask for partition

However, if the property is a family house and D is not a family member, he cannot demand joint possession.

Summary

• Co-ownership means ownership by more than one person
• Each co-owner can transfer his share
• Transferee gets same rights as transferor
• Includes right to possession and partition
• Special rule for family dwelling house restricts outsiders
• If shares are not specified, transfer is equal or proportionate
• Transferee’s rights are limited to transferor’s share