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When is a Co-Owner Legally Competent to Make a Transfer of Property in India

Introduction:

Meaning of Co-owner:

Co-owner simply means two or more persons holding a title or share to the same property.

What are the types of co-ownership?

Tenants in Common:  When two or more person buy a property ( Co-owners ) and they do not specifically mention the share for each other, there “tenancy-in-common” comes into existence. Every co-owner can use the whole property and every co-owner is believed to have an equal share in the property.

If any co-owner dies then the ownership passes to the person whose name is mentioned in the will of the deceased.

Joint Tenancy:

Joint tenancy is a type of co-ownership where two or more individuals own the property in equal shares at the same time.

To create a joint tenancy, four legal elements are required:-

  • Unity of title
  • Unity of time
  • Unity of possession

Section 7 of the Transfer of Property Act, 1882:

The Transfer of Property Act, 1882 contains section 7 in it and it says that any person or individual competent to contract, suppose say he or she may be major or of sound mind or not disqualified by law for contracting. So, the interest of a co-owner or co-sharer can be sold or leased or mortgage to any other co-owner or to any other person.

In some cases, a coparcener of a Hindu Joint Family can give his or her share in the joint family for consideration but in Mitakshara coparcenary, the consent of other members are also required.

Case Analysis:


In Baldev Singh v. Darshani Devi, it was observed by the court that when a co-owner has no actual physical possession of the property or share, he or she cannot deliver or transfer the title of the property to another person. The transferee gets remedy in this case. The transferee can get a share out from the property after the partition or can get a decree for joint possession and so on.

Section 44 of the Transfer of Property Act, 1882:

The Transfer of Property Act, 1882 contains section 44 which describes the transfer by one co-owner. This section provides co-owner to transfer his share or property to any person. It also gives other conditions where the co-owner can transfer the property or share. 

A transfer without consent ( valid or not ):

When the co-owner has exclusive rights over the property then only he or she can sell or transfer the property or share. And when the co-owner has no exclusive rights then he or she cannot sell or transfer the property without the consent of other co-owners of the property or share. It is illegal to transfer the property without the consent of other co-owners when they hold the property in the name of all co-owners.

Conclusion:

Co-owners mean every person who jointly holds property or shares or simply means every owner of a property. Male members and daughters in case of coparcenary have an equal interest or share in the ancestral property. Any co-owner willing to transfer his share or property to any person can do so but co-owner has to maintain the rules and regulations and follow the conditions to transfer the property.

2 replies on “When is a Co-Owner Legally Competent to Make a Transfer of Property in India”

Respected Sir,
What is the procedure in case of , the joint owner of a land formed a housing Co-operative Society and one of it’s fonder member want to transfer his membership/share?
We jointly purchased a land and formed a Co-operative housing society to build a flat with 12 units for 12 members.

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