Transfer of Property Act (TPA)
Transfer by Co-owners of a Share in Common Property: Section 47
Three co-owners holding unequal shares join in selling a two-anna share of the property, and the deed does not say whose share it comes out of. The buyer has what he bargained for, but the sellers must settle an accounting question among themselves: whose holding is reduced, and by how much? Section 47 answers it by the same principle that runs through sections 45 and 46 — proportion. The burden falls on each transferor in the ratio of the share he held.
Figure 1: The transferred share drawn from each co-owner in proportion to his holding
1. The Section
Section 47, TPA 'Where several co-owners of immoveable property transfer a share therein without specifying that the transfer is to take effect on any particular share or shares of the transferors, the transfer, as among such transferors, takes effect on such shares equally where the shares were equal, and, where they were unequal, proportionately to the extent of such shares.' |
2. The Act's Illustration
Eight annas, four annas, four annas A owns an eight-anna share, and B and C each a four-anna share, in a village. They transfer a two-anna share to D, without specifying from which of their several shares the transfer is made. To give effect to the transfer, one anna is taken from A's eight-anna share, and half an anna from each of B's and C's four-anna shares. Each transferor bears the burden in the ratio in which he held — A holding half the property bears half of the two annas, and B and C, holding a quarter each, bear a quarter of it each. |
3. The Elements
- Several co-owners of immoveable property. The section presupposes common ownership in defined shares.
- A transfer of a share by them jointly. They act together in transferring part of the property.
- No specification of whose share it comes out of. This is the gap the section fills; where the deed says, the deed governs.
- The effect is worked out 'as among such transferors' — the section decides an internal question, not the transferee's title.
- Equally where the shares were equal; proportionately where unequal.
4. What the Section Does and Does Not Decide
Question | Answer |
|---|---|
Does the transferee get his share? | Yes — whatever the internal arrangement, he takes the share he bought |
Whose holding is reduced? | Each transferor's, in the ratio of the share he held |
What if the deed names the source? | The section does not apply; the transfer takes effect on the share specified |
What if one co-owner's share is smaller than his proportionate burden? | The transfer can take effect only on what he has; the balance falls on the others, and the working out is a matter of giving effect to the transfer |
Does it affect the price? | No — the division of the consideration among the sellers is section 46 |
Does it apply to a transfer by a single co-owner? | No — that is section 44 |
5. The Three Sections as a Set
Section | Who is affected | What it divides | The measure |
|---|---|---|---|
45 | Two or more transferees | The property bought | The fund, or the share of the price each advanced; equality if nothing is shown |
46 | Two or more transferors | The consideration received | The value of the interest each gave up |
47 | Two or more transferors | The burden of the share transferred | The extent of the share each held |
All three are default rules: each opens or operates on the footing that the parties have not provided otherwise, and each exists to make a silent deed workable rather than to override an express one.
6. Why Proportion Rather Than Equality
- It matches what the parties would have intended. Co-owners selling together are contributing to a common transaction; each would expect to give up a part measured by what he owns.
- It avoids an arbitrary result. Taking the two annas equally from three unequal holders would reduce the smallest holder disproportionately, and might exhaust a small share altogether.
- It is consistent with section 46. If the price is divided by reference to the value of the interests given up, the burden ought to be borne on the same footing.
- And it keeps the transferee out of the dispute. Whatever the co-owners settle among themselves, the share he bought is intact.
Retention aid Each gives up in the ratio in which he held. Eight, four and four bear the two annas as one, a half and a half. The buyer never feels the difference; the sellers do. |
7. Related Topics and Provisions
- Joint Transfer for Consideration, Section 45 — the shares of joint transferees
- Transfer for Consideration by Persons Having Distinct Interests, Section 46 — the division of the price
- Section 44, TPA — a transfer by a single co-owner, and the rights of his transferee
- Section 44 and the Partition Act, 1893 — the family dwelling-house exception
- Section 8, TPA — what passes by the transfer
- Transfers in Special Circumstances, Sections 38 to 53A — the chapter scheme