The term ‘transfer’ under the Transfer of Property Act,1882 means a legal transaction between a transferor and a transferee whereby a transferor conveys his share or interest in a movable or immovable property to another person known as the transferee.
A transferee on the other hand is a person in whose favor the transfer has been. There can be more than one transferees in a legal transaction of property under the act. The concept of joint transfers is dealt by section 45 under the Transfer of property Act:
It states “where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced.
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 shall be presumed to be equally interested in the property”.
The above section is an analysis of a joint transfer. However, in Debaraj v Ghanshyam (AIR 1979 Ori 162), it was held that “the concept of joint transfers is affected by personal laws, if the transferees are Hindus they accept the property as tenant-in-common because joint tenancy is a concept foreign to Hindu law. However, the presumption of joint tenancy is drawn among Christians and Parsees”. In other words, the concept of joint transfers is nothing but a transfer accepted by more than one person with a specified consideration involved in the transaction. The interest of these transferees on the other hand in absence of a contract is presumed to be of the same respectable share they have in the subject property. The concept of joint transfers further leads us to the concept of ownership as dealt by each of these joint transferees over a joint property.
Joint Ownership
Undivided or Joint ownership as the name says, means a scenario where ownership isn’t divided or limited to a sole owner and is rather a cumulative hold by more than one persons over an immovable property.
This principle is dealt by The transfer of Property Act,1882 u/s 44. Section 44 deals with transfer of property by one co-owner. It states-
“where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such 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 of the same, but subject to the conditions and liabilities affecting at the date of the transfer , the share or so transferred.
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 shall be deemed to entitle him to joint possession or other common or part enjoyment of the house ”
Co-owners
When an immovable property is held by more than one person and is a joint beneficiary of two or more persons, those persons are together known as co-owners.
- Joint tenancy is a benefit which relies on survivorship i.e. if any of the joint owners die, his share of enjoyment passes on the rest of the owners and not on his legal heirs or representatives. English law usually describes joint tenancy as a unity of interest or possession. Survivorship being an essential component of joint- tenancy lays down that even though under estranged circumstances, a co-owner can transfer his interest inter-vivos, he cannot pass the same through a will.
Further there can be only four co-owners as per the modern concept of tenancy in English law. In cases where there are more co-owners than four, the primary four owners will hold the property as trustees for the rest of the owners in equity. Moreover, in joint tenancy a co-owner cannot legally transfer his interest in the property to a stranger. Thus in such cases, the purchaser’s only remedy is partition in which case the other co-owners will be entitled to buy that particular share at a price fixed by the court.
- Tenancy in Common is a concept which relies on ‘ownership in entirety’. In other words tenants in common hold the property as joint or co-owners with an undivided interest in the entire property in entirety. None of the co-owners can hold their share of interest individually or cease the other person’s interest as an owner.
In India, a Hindu Undivided Family is one such example of a tenancy-in-common where all the members of a family hold the ancestral property as co-owners minus the concept of survivorship. An individual member cannot claim right over the property as a sole owner or cease a right of any other joint family member.
- Coparcenary in India was known through the idea of a Hindu Joint Family along with the concept of survivorship but it is not now so, as the concept of survivorship has been abolished in India. It does to a certain extent imbibe the ‘unity of possession and title’ as per the English law but not of time and interest. In Jogeshwar Narayan v Ramchand Datt (1896) LR 23 IA 37, the court held that ‘the principle of joint tenancy as obtained in England is quite foreign to Hindu law…’. Further in Chinnu Pillai v Kalimuthu Pillai (1910) ILR 35 Mad 47, the judge while dealing with a case of joint Hindu family coparcenary stated that;‘The fluctuating character of a joint tenant’s interest ceases in the hands of his alienee, as if it is the same as joint tenancy in the English law of Real Property. The closest Hindu law is in a situation when under Mitakshara School, an estate passes upon two or more widows or daughters and they jointly hold the property as co-tenants’.
Thus, there can be any kind of ownership under the act unless it impacts the personal laws of the parties. Joint or Undivided ownership is treated as a neutral concept which is unbiased to all forms of existing personal laws.
Illustrations
- A, B, C, D, E, F, G are residents of England. They buy a joint property at west Minister Street. The first four owners A, B, C, D will hold this property as trustees for E, F, G who will have an equitable interest in the property. It is so because Joint tenancy under English law only permits 4 co-owners.
- A transfers his property to B and C. Even though B and C agree to joint ownership they have a dispute over their share of interest in the property and there is no contract to prove the same. In this case, B and C will be entitled to the same interest in the property as their share in the property as co-owners at the time of purchase.
Conclusion
The article gives us an overview of the two broad concepts of ‘Transfer’ and ‘ownership’ under the Transfer of Property Act, the role of a transferee, the classifications of undivided ownership and how all of it is dealt with under the act.
Frequently Asked Questions
1. How is ownership of a property impacted when it is joint in nature?
The property(movable or immovable) when held by two or more owners in the character of joint tenancy or joint ownership becomes entitle to obligate all the owners of the subject property whether for its benefits or obligations and not any one owner.
2. What does the maxim ‘per my but not per tout’ mean under the concept of joint tenancy?
It means that the property in any scenario will be held by all the joint owners in it’s entirety and not by any single one of them.
3. How does the concept of joint transfers impact the transaction of ‘Gift’ under the Transfer of Property Act?
Section 45 which deals with joint transfers under the act are inapplicable to Gifts.
Edited by Shikhar Shrivastava
Approved & Published – Sakshi Raje
