Transfer of Property Act (TPA)
Section 44 and the Partition Act, 1893: The Stranger Transferee of a Share in a Family Dwelling House
A co-owner may sell his share, and his purchaser ordinarily steps into his shoes with a right to joint possession and to a partition. Where the property is the dwelling house of an undivided family, the second paragraph of section 44 withholds joint possession from a purchaser who is not a member of the family. He keeps his share and may sue for a partition — and when he does, the Partition Act, 1893 allows the family to buy him out at a valuation. Between them the two statutes ensure that a stranger who buys into a family home ends up with money rather than a room.
Figure 1: The stranger kept out of joint possession, his remedy by partition, and the family's right to buy his share
1. Section 44
Section 44, TPA Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of the property or any interest in it, the transferee acquires, as to that share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition — but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. Second paragraph — where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section entitles him to joint possession or other common or part enjoyment of the house. |
2. The Exception: Its Four Conditions
- The property is a dwelling-house. Not a shop, a godown or agricultural land — the protection is of a home.
- It belongs to an undivided family. The expression is not confined to the Hindu joint family; it covers a family living in a state of union in respect of the house, and has been applied beyond Hindu families.
- A share in it has been transferred. The transfer itself is perfectly valid; the section limits what the transferee may do, not what the co-owner may sell.
- The transferee is not a member of the family. A transfer to another member raises no question, since he is already entitled to be in the house.
3. What the Stranger Loses, and What He Keeps
Position | |
|---|---|
Joint possession and common enjoyment of the house | Denied by the second paragraph — he cannot move into the family home |
The share itself | Retained — the transfer is valid and he owns what he bought |
The right to sue for partition | Retained — this is his remedy, and the ordinary way in which his share is worked out |
Mesne profits or a share of the income | Available according to the general law of co-ownership, since what is denied him is possession |
Protection against the family dealing with the house | His share cannot be defeated; it can only be bought out under the Partition Act |
4. The Partition Act, 1893
Provision | Effect |
|---|---|
Section 2 | Where in a suit for partition it appears that a division of the property cannot reasonably or conveniently be made, the court may, if the requisite shareholders request it, direct a sale of the property and a distribution of the proceeds |
Section 3 | Where a sale is directed, any shareholder applying may be given the option to buy at a valuation the share of the party asking for a sale, and the court shall order a valuation accordingly |
Section 4 | Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of the family, and that transferee sues for partition, the court shall, if any member of the family being a shareholder undertakes to buy the share of the transferee, make a valuation of that share and direct its sale to the shareholder |
Section 4 is the provision that completes section 44. The stranger's only practical remedy is a suit for partition; the moment he brings it, a member of the family may step forward and buy his share at a price the court fixes. The family keeps the house, and the purchaser gets his money.
5. How the Two Statutes Work Together
- Section 44 removes the stranger's right to be in the house. He cannot insist on living alongside the family.
- It leaves him his share and his right to a partition. He is not deprived of what he paid for.
- Section 4 of the Partition Act converts the share into money. On his suit for partition, a member of the family who undertakes to buy is given the opportunity, at a valuation.
- Sections 2 and 3 supply the general machinery, for cases where a division cannot reasonably be made and a sale is the practical course.
6. Why the Law Takes This Course
- A dwelling house is not merely an asset. It is the place where a family lives, and the intrusion of a purchaser into it is a different thing from his acquiring a share in a field.
- The privacy and harmony of the family are protected, particularly where the members include women and children who had no part in the sale.
- The purchaser is not unfairly treated. He bought a share knowing what it was, and he is paid its value; he loses only the right to occupy.
- And the property is kept whole. Partitioning a single house among strangers and family members is often impossible in any sensible way, which is why a valuation and sale is the better answer.
Retention aid He may own it, he may sue for it, but he may not live in it. Section 44 keeps the stranger out of the family home; section 4 of the Partition Act lets the family turn his share into a cheque. |
7. Related Topics and Provisions
- Feeding the Grant by Estoppel, Section 43, and Transfer by One Co-owner, Section 44 — the two sections in full
- Sections 45, 46 and 47, TPA — joint transfers, persons with distinct interests, and transfers by co-owners
- Partition Act, 1893, sections 2, 3 and 4 — sale in lieu of partition, and the shareholder's right to buy
- Transfers in Special Circumstances, Sections 38 to 53A — the chapter scheme
- Section 4, TPA — the Act read with the Code of Civil Procedure in partition suits
- Transferee With Notice vs Transferee for Consideration Without Notice — the conditions and liabilities to which the transferee takes subject