Transfer by Co-Owner Under Transfer of Property Act


When more than one person owns a property, the owners are known as "co-owners." When two or more people share ownership of a property, they are known as "co-owners." Co-owners have equal ownership rights in a property based on their share. The co-owners have the right to use, dispose of, and possess the property. When a property is partitioned, the owners who arise from the partition are referred to as co-owners. Co-ownership refers to joint tenancy, tenancy in common, and tenancy by the entirety.

Co-Owner: Definition

In most circumstances, the co-owner of a property is a member of the same family. A co-owner can also be named in a will made in his favor. Each co-owner may have either equal rights to use the property as others do or a portion of the property in his name. When there are more than two co-owners on a property and one of them dies, his share immediately goes to his dependents or other co-owners.

For example, if three brothers inherit an ancestral property, they will be co-owners of the property. If one of them dies, his share of the property is divided between the two remaining brothers or his dependents, along with his rights.

Under the law, a co-owner has three essential aspects of ownership −

  • The right to possession

  • The right to use and

  • The right to dispose of the property

Types of Ownership under Co-Owner

There are several kinds of co-ownerships. These have been explained below −

Tenants in Common

A tenancy-in-common exists when two or more people acquire a property but do not clearly indicate their share of ownership. All co-owners have access to the entire property, and each co-owner is deemed to own an equal share of the property. Each tenant-in-common has a fractional interest in the property. Each tenant-in-common may, however, possess and use the entire property. Each tenant-in-common has the right to freely transfer his or her interest in such property. Tenants-in-common are not entitled to survivorship. As a result, if one dies, his or her interest passes by will or intestacy rules to another individual, who might then become a tenant-in-common with the surviving co-owners.

Joint Tenancy

Joint tenancy is a type of co-ownership in which two or more people own the property in equal shares at the same time. This kind of tenancy gives co-owners who outlive other co-owners the right to ownership of the property. The right of survivorship is given through joint tenancy. If one of these co-owners dies, the property is transferred to the surviving or other joint tenants immediately. The joint tenants all share a unified interest in the entire property. The joint tenancy must have undivided interests in the entire property, rather than divided interests. A will or a deed can establish a shared tenancy. Each joint tenant should have estates that are of the same type and duration.

Tenancy by the entirety

It is a type of joint tenancy in which the joint tenants are the husband and wife, each owning one-half of the property. Tenancy by totality requires the two co-owners to be married, i.e., husband and wife, in order to exist. With this sort of co-ownership, neither spouse is authorized to convey or transfer his or her interest to a third person. The husband or wife, on the other hand, might transfer his or her portion to their spouse. Only a divorce, death, or mutual agreement between the husband and wife can end a tenancy in its entirety. When a tenancy is terminated, it becomes a tenancy in common.

Transfer by One Co-Owner

When two or more people own a property jointly, each co-owner may have equal or unequal shares, but until partition occurs and their individual shares are separately possessed, each co-owner is entitled to the common enjoyment of the property. Section 44 of the Transfer of Property Act of 1882 deals with the aspect of transfer by one co-owner, as well as the rights of the transferee in such a transaction.

The principle of this section is that if a co-owner transfers his shares, the transferee is replaced in place of the transferor. It substitutes the property to the extent of the part given to him. In this case, the transferee has the same right as the other co-owners to enjoy the joint property in common. This transferee takes on the role of the transferor. That means that the transferee will acquire all of the rights and liabilities that the co-owner [the transferor] has in the joint property at the date of transfer.

Right and Liabilities of Transferee

Section 44 of the Transfer of Property Act deals with the rights of a transferee and protects those rights. Here, the transferee steps into the shoes of his transferor, i.e., the co-owner, and is clothed with all of his transferor's rights and becomes subject to all of his transferor's liabilities. It basically becomes a co-owner in the same way as his transferor was before the transfer.

In this case, the transferee from a co-owner acquires rights such as (i) a right to joint possession of the property and (ii)) a right to enforce partition as against other co-owners. Additional rights include the right to make improvements and the right to peaceful possession.

Right to Joint Possession

Each co-owner has a proprietary interest in the entire estate. Except for a dwelling house, the transferee becomes a co-owner and receives all rights associated with joint possession. If a co-owner or his transferee is ousted from joint possession, he is entitled to joint possession through a suit, and it is not necessary to apply for partition.

Right to Enforce Partition

As in any situation of joint partnership, each party has the right to demand partition, which is the right to be placed in a position to enjoy his own rights separately without interference or interruption.

Right to peaceful possession

In this case, a co-owner transfers his separate plot, and the transferee takes possession of the co-remaining owner's share; his transferee cannot be disturbed by the other co-owners until and unless a final partition happens. As a result, a tenant of land who obtains his title from all co-owners cannot be disturbed unless all agree.

Right to Make Improvements

Co-owners can make improvements, and he is authorized to make improvements on any section of the land. Although he is not entitled to do so on any other portion of joint property or to the detriment of other co-owners, Right to Enforce Partition: As in any situation of joint partnership, each party has the right to demand partition, which is the right to be placed in a position to enjoy his own rights separately without interference or interruption.

Conclusion

As a result, if one of the many co-owners passes his part, the assignee obtains the relevant rights with respect to that portion and to the extent necessary to complete the allocation. The transferors' right to share ownership of the estate or other mutual or partial profit from it, as well as their ability to execute a piece of it It should be stressed, however, that these entitlements would have been subject to the terms and conditions that were applicable to the share at the time of transfer.

Frequently Asked Questions (FAQs)

Q1. What is a co-owner transfer under the Transfer of Property Act?

Ans. When two or more people have title to the same property and transfer a portion of their share, the transferee takes the place of the transferor who has transferred his share. Therefore, co-ownership of a dwelling house does not confer the right to joint possession on the transferee.

Q2. What are the co-ownership rules?

Ans. The ownership is split 50/50, with each co-owner having an equal share of the property's rights. When a co-owner dies, the claim he had is instantly transferred to the surviving co-owner. This is the case when spouses own the family home jointly.

Q3. What is the liability of a co-owner?

Ans. Co-owners are jointly liable to repay the loan amount; a default by one application forces the other to discharge the liability.

Q4. Can a co-owner sell a property without permission?

Ans. Yes. A co-owner has absolute ownership of his undivided share of the co-owned property. He has the authority to mortgage, sell, alienate, or dispose of the property in any way. He may even substitute another individual to share it with.

Updated on: 04-Apr-2023

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