A co-owner can sell his share of property
A co-owner in a joint property can sell his undivided share of property to anyone. But he cannot sell the specific piece of land with marked boundaries from the joint property.
The term co-owner or co-sharer is wide enough to cover all kinds of ownership such as Joint tenancy, Tenancy in common, Coparcenaries, undivided Hindu family members, etc.
A selling of a share of property by co-owner in essence means the buyer steps into the shoes of his seller. The buyer is clothed with all the rights and liabilities of his transferor. So, the buyer becomes as much a co-owner as his transferor was before the property transfer.
Buyer not entitled to a specific part of the property
Although such a co-sharer may have a right to transfer his undivided share a co-sharer cannot put a buyer in possession of any part of the joint property without any physical formal partition of it by metes and bounds amicably and through mutual settlement or by a decree of the court.
Therefore, the buyer of an undivided interest or share in a joint property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him the share of the property he had purchased. His right to possession would date from the period when a specific allotment was made in his favour.
A co-sharer cannot alienate the property beyond his share in it. If he sells beyond his share, the selling is void in law. A seller of a property cannot sell any property with better rights than he himself has.
Basic principle of joint ownership
The basic principle governing any unpartitioned property is that each and every co-sharer thereof owns and would be deemed to be in possession of every square inch of the land.
Even when a co-sharer of a joint property is in exclusive possession of the specified portion of the joint holding, he is in possession thereof as a co-sharer and all the other co-sharers continue to be in its constructive possession.
Even when a co-sharer sells his share with possession of a part of the joint property the buyer would be in possession piece of land only as a co-sharer who can initiate proceedings for partition of the joint holding including the land transferred but not as an absolute owner.
The effect of sale of even of specified portion of joint land in law is that it is only a sale of portion of share by one of the co- owners. A property owner cannot sell anything more than what he owns.
If the co-sharers are actually in exclusive possession of their respective shares in specific parcels of the property, the general principle would not apply.
Outsider does not get possession in a dwelling house
The strangers/outsiders can purchase shares even in a dwelling house. The transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house.
The Section 44 of the Transfer of Property Act adequately protects the family members against intrusion by an outsider into the dwelling house. This exception avoids inconvenience which may be caused by substitution of a stranger in joint family.
The only manner in which an outsider can get possession is to sue for possession and claim separation of his share.
Right of pre-emption under partition act
A co-sharer has right of pre-emption under section 4 of the partition act but not under section 44 of transfer of property act, 1882. But no law stipulates that a co-sharer must sell his property to another co-sharer.
Hence strangers or outsiders can purchase share of a co-sharer even in a dwelling house. Even then he gets no right to joint possession or common enjoyment of the portion of the house so purchased.
Judgements for additional reading
- Satpal Kaur & Another v Joginder Singh & Others, at https://indiankanoon.org/doc/70648394/
- Gajara Vishnu Gosavi v Prakash Nanasahed Kamble & Ors at https://main.sci.gov.in/jonew/judis/35519.pdf
