Transfer by a Co-owner (Section 44)

1. Where a co-owner of an immovable property legally competent in that behalf

transfers his share in such property,
2. the transferee acquires—
o (a) transferor's right to joint possession, other common or part enjoyment of
the property (not where the transferee has taken a share of a dwelling house
belonging to an undivided family and he is not a member of that family), and
o (b) transferor's right to enforce partition of the property (subject to the
conditions and liabilities affecting the share so transferred).

Where a property is jointly owned by two or more persons, such property is known as co-
owned property. Co-owners may have equal or unequal shares in the property. Till the
property is not partitioned and shares separated, each co-owner is entitled to common
enjoyment of property. Now, when one of such co-owner transfers his share in co-owned
property, the transferee of such property steps into the transferor's shoes and becomes entitled
to joint possession of property and other common and part enjoyment of property. He will get
all the rights and liabilities of the transferor on the date of transfer in the joint property. The
transferee like transferor can enforce the partition of the property where the transferor himself
had that right. But his right will be subject to the conditions and liabilities affecting the
transferred share. In this section, an exception has been created in favour of Hindu Undivided
Family.

Alienation of Property by Co-owner

Where the parties mutually divided their properties pursuant to a compromise decree and
coparcenary came to an end after preliminary decree, alienation of his share by one co-owner
to a third party cannot be assailed by other co-owner when the co-owner has not alienated
property in excess of his share.

Exception— This section says that the co-owners' right to joint possession, other common or
part enjoyment of the property transferred will not be available to the transferee where such
property is a dwelling house belonging to an undivided family and such transferee is not the
member of that family. Where the transferee gets the share in a residential house belonging to
family members of a joint family, he is not entitled to the joint possession or enjoyment of the
property. This exception has been created in order to avoid inconvenience which may be
caused by substitution of a stranger in joint family who may be of different caste, religion,
etc.

Dwelling-house means not only a residential building or structure but all the adjacent
buildings, gardens, courtyard and orchard, etc. which are necessary for the convenient use of
the house. House used for commercial purpose but not in use for residential purpose is not a
dwelling house. When a share in a dwelling-house is transferred without partition and the
transferee attempted to take the possession of the property without maintaining a suit for
partition, the other co-owners may restrain him from taking the possession.

Whether a co-sharer transfers his share by way of lease, gift, sale or mortgage, this section
will be applicable. Where a house was in common enjoyment of all family members of an
undivided family and one co-sharer leased out his share without effecting partition
whereupon the stranger lessee attempted to enter into possession, the Calcutta High Court
held that an interim injunction restraining the stranger lessee could be granted. However, this
section is not applicable to the case of a dwelling-house where a part of it is occupied by
strangers after partition.

Section 4, Partition Act, 1893

The objects of section 4, of the Partition Act, 1893 and this section is to keep off strangers
who may purchase the undivided share of a co-sharer of an immovable property. This section
assures the transferee the right of joint possession or common enjoyment of the property but
does not confer on him any right to exclusive possession without enforcing partition.

For example, A, B, and C are co-owners of a field that is subject to a mortgage. C transfers
his share to D. D has a right to joint possession with A and B and has also a right to claim
partition and separate possession of his share. But the share D has acquired is still subject to
the mortgage.

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Joint Transfers for Consideration (Section 45)

Section 45 says that where an immovable property is transferred:

1. for consideration (value) to 2 or more persons, and

2. such consideration (value) of property is paid out of a fund belonging to them in
common,
3. they are entitled to interest in such property identical to their interest in the common
fund respectively (if there is no contract to the contrary), but
4. where such consideration is paid out of separate funds belonging to them respectively,
5. they are entitled to interest in such property in proportion to the shares of
consideration paid or advanced by them respectively (when there is no contract to the
contrary).
6. In case there is no evidence as to their interest in the fund to which they are entitled or
the shares which they have respectively advanced—it will be presumed that they are
equally interested in the property.

When a transfer to two or more persons jointly for consideration makes them co-owners of
the property transferred, their interests are in proportion to the shares of the consideration that
they have advanced. If the consideration is paid out of a common fund, their shares would be
the same as their interest in the common fund.

Co-ownership is a relationship which springs from consensus and contract. This section has
nothing to do with the method of creating common ownership or the manner in which several
persons can become co-owners in respect of a single property. It deals with the quantum of
interest and its determination where there are several joint purchasers of immovable property.

Presumption of Equality
In the absence of evidence showing in what shares the consideration was paid, there is a
presumption that the co-owner's interest was equal. When a person can produce evidence of
the amount of his share but fails to do so, he cannot avail himself of this presumption of
equality.
Where a land was jointly acquired by two respondents/strangers, it could not be treated as a
single unit. It was held that in the absence of evidence as to the interests in the fund to which
they were respectively entitled or as to the shares which they respectively advanced, such
persons should be presumed to be owners of equal shares in the land.

When two or more persons buy a property using a common fund, their ownership shares will
match their contributions to that fund, as per Section 45 of the Transfer of Property Act, 1882.
Even if the property is purchased in one co-owner's name, this does not grant them exclusive
ownership if it's proven that all co-owners consented to this arrangement and contributed to
the purchase. Each co-owner retains a proportional right in the property based on their
contribution.

Involuntary Sales:
The principle under Section 45 of the Transfer of Property Act, 1882, also applies to
properties bought in an involuntary sale (such as auctions or sales to recover debt). This is
because the rule is based on justice, equity, and good conscience, meaning it fairly determines
ownership rights according to each person’s contribution.

A woman purchased a property with her minor son listed as co-owner, despite her paying the
full amount. The sale deed specified that, upon her death, the property would fully vest in her
son, which conflicted with Section 45 of the Transfer of Property Act, 1882. Although her
notebook indicated she intended the property for all her children, the sale deed, granting
absolute rights to her son, held greater legal weight in court.

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Transfers by Persons with Distinct Interest (Section 46)

1. Where immovable property is transferred for consideration by persons having distinct

interest in the property,
2. the transferors would be entitled to equal share in the consideration when their
interests in the property were equal (in the absence of the contract to the contrary),
and
3. where the interests of the transferors were unequal, the transferors would be entitled
to shares proportionately to their interests in the property.

This section is the converse of Section 45 because this section deals with apportionment of
consideration between joint-transferors, whereas Section 45 dealt with apportionment of
interests among the joint-transferees. The principle of this section is that where two or more
persons, who are tenants-in-common, sell their shares, they are entitled to share the
consideration in proportion to the value of their interest in the property.

If A owns half of a property, and B and C each own a quarter, they together exchange an
eighth of this property for a quarter of another property. Since there’s no other agreement, A
gets an eighth share in the new property, while B and C each get a sixteenth share.

A has the right to use a property for life, while B and C own the rights to it after A’s lifetime.
They sell the property for Rs 1000, where A's life use is valued at Rs 600, and B and C’s
rights are valued at Rs 400. Therefore, A gets Rs 600, and B and C share the remaining Rs
400.
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Transfer of a Share in Common Property (Section 47)

|According to this section,

1. where co-owners of immovable property transfer a share in it,

2. without specifying that the transfer is to take effect on which particular share of the
transferors,
3. the transfer takes effect on such shares (among such transferors)—
o (a) equally, where the shares of transferors were equal, and
o (b) proportionately to the extent of shares, where the shares were unequal.

Where co-owners of a property transfer a share in that property without specifying how the
transfer is to take effect, in such a case where the shares of co-owners are equal, the transfer
becomes effective equally on such shares. But where the shares of co-owners are unequal, the
transfer becomes effective proportionately on such shares.

For example, A, B, and C are co-owners of a property. In this property, A has eight anna (50
paise) share and both B and C have four anna (25 paise) shares. They transfer a two anna
share in the property to D without specifying from which of their shares this transfer is made.
Therefore, to give effect to the transfer, a one anna (10 paise) share is taken from A's eight
anna (50 paise) share, and a half anna (5 paise) share is taken from each of B and C's four
anna (25 paise) shares.

Tenants-in-common
Those persons who have different definite shares in property but remain in joint possession of
that property are known as tenants-in-common. Tenancy-in-common implies only unity of
possession but not of title, whereas joint tenancy implies both unity of title and of possession.
When an original tenant dies, the legal heirs inherit the tenancy as joint tenants.