Transfer of the Property by Co-owner

Where one of two or more co-owners of immoveable property legally competent in that behalf transfers hi s share of such property or any interest there in the transferee acquires as to such share or interest and 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 interest so transferred.

Where the transferee of the 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 join possession or other common or part enjoyment of the house. His only remedy is to file a suit for partition and for specific possession on partition of his share subject to the right of the co-sharers under section 4 of the Partition Act instead of availing himself of that right if such purchaser tires to take forcible possession the remedy of a co-sharer is to seek protection of the court of law by a suit for injunction restraining such a transferee from entering into possession of the undivided dwelling house.

Under section 44 of the Transfer of Property Act 1882 a co-sharer could sell joint property only to the extent of his own share. The principal of that a stranger should not be allowed to joint possession in dwelling house or huts with the person or person actually in exclusive possession of the same.

This law applies to all transfers including sales and mortgages. But partition must be necessary to give effect to the undivided share can maintain a suit for partition.

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