Mangesh Badwaik
Asked July 05, 2016

Tenancy in Common, can I claim?

  • 1 Answer

Joint Property i.e Dwelling house of having 4 shares (Tenancy in Common) purchased in 1965 by mother and 3 children, in which partition by metes and bounds not executed. Out of 4 shares 3 shares sold their share by registered sale deed to stranger without taking consent of 4th share. 4th share is in possession of full house. Question 1) Can 4th share claim in court for cancellation of sale deed as there was no consent from him and there was no partition of dwelling house? 2)Can 4th share claim in court for right of preemption? Kindly suggest how Transfer of property act section 44 apply

Answer 1

Default avatar
Saurabh Kumar

When two or more persons enjoy common ownership of a property, the male members and now even daughters have a common and an equal interest in the ancestral property, any co-owner can transfer his own share in the property to a stranger or another co-owner. And that transferee steps in the shoes of the co-owner (transferor) and gets clothed with all his assets and liabilities. We can say that the transferee becomes the co-owner.

Section 44 of the Transfer of Property Act, 1882, deals with transfers by one co-owner. It also deals with the rights of a transferee in this type of a transaction. It incorporates the principle that the buyer becomes as much a co-owner as his transferor was before the transfer. Section 7 of the Transfer of Property Act, 1882 provides that every person competent to contract i.e. a major and of sound mind or is not disqualified by law for contracting. Therefore even the interest of a co-owner or co-sharer can be sold, mortgaged, leased to another co-sharer or to a stranger. The fact that the partition has not taken place by metes and bounds, does not stand in the way of the interest of a co-owner.

Thus, in this case, if the three individuals in question have sold THEIR part of the property and your share in question remains untouched, then you cannot raise any claim.  You may continue to possess your share of the house by accordingly negotiating with the buyer and ensuring you are not dispossessed.





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