Article On Sec 44 Of TP Act

The Purchaser/Transferee of a share of a dwelling-house, belonging to an undivided family, is not a member of the family, shall not be entitle to joint possession or other common or part enjoyment of the house.”

A co-share or a subsequent purchaser/transferee of a property belong to undivided family always faces above question, and in absence of proper answer does not get proper relief. This problem can be addressed through two ways which depend on the requirement of a purchaser. If a prospective purchaser is happy in buying the undivided share then go for it. There are two ways to avoid the problem in selling the undivided share in the property. 1. The best way is to get the partition done and sell/purchase the property. 2. If one doesn’t or cant formalise the partition, and practically one knows which part of the property one owns then one can just write in the sale deed stating that he/she sells his/her undivided share in the property to the extent of xxxx land surrounded by the following North: South East West
However, sometimes sell/purchase happens spontaneously and parties don’t get time to get partition done but to sell, at that moment there are two laws which come into picture and give a solution for further course of action.

First is Section 44 in The Transfer of Property Act, 1882

Section 44 says Transfer by one co-owner.—“Where one of two or more co-owners of immoveable 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 interest 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”. The second part of the provision provides an exception to the general rule stated in the first part and it is designed to prevent an outsider to forcing his way into a dwelling house in which other members of the transferor’s family have a right to live.

Likewise Section 4 in The Partition Act, 1893

Partition suit by transferee of share in dwelling-house.— (1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf. (2) If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the court shall follow the procedure prescribed by sub-section (2) of the last foregoing section.

Relation between section 4 of partition act 1893 and the 44 of Transfer of property Act.

There could be no doubt that the ratio of the decisions rendered under section 4 of the Partition Act equally apply to the interpretation of the second paragraph of section 44 as the provisions are complementary to each other and the terms “undivided family” and “dwelling house” have the same meaning in both the sections

Ingredient

The Full Bench of the Allahabad High Court in Sultan Begam and Ors. v. Debi Prasad, [1908] ILR 30 All. While discussing sec 44 of TP Act, stated that

In order to attract the second paragraph of this section the subject-matter of the transfer has to be a dwelling house belonging to an undivided family and the transfer is a share in the same to a person who is not a member of the family.
Therefore, in order to satisfy the first ingredient of clear existence of the right and its infringement, the plaintiff will have to show a probable case that the suit property is a dwelling-house and it belonged to an undivided family.
the second ingredient is transferee shouldn’t be a member of family.

Whom it is applied

The argument was that the words ‘undivided family’ as used in the section mean a joint family and are confined to Hindus or to Muhammadans, who have adopted the Hindu rule as to joint family property. The counter argument was that the expression is of general application and means a family whether Hindu, Muhammadan, Christian etc. possessed of a dwelling house which has not been divided or partitioned among the members of the family. (section 4 of the Partition Act) we find nothing to indicate that it was intended to apply to any limited class of the community. The words ‘undivided family’ as used in this section appear to be borrowed from section 44 of the Transfer of Property Act. The last clause of that section prescribes that 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 dwelling house. This provision of the Statute is clearly of general application, and the effect of it is to compel the transferee of a dwelling house belonging to an undivided family, who is a stranger to the family, to enforce his rights in regard to such share by partition. There appears to me to be no reason why the words ‘undivided family’ as used in section 4 of the Partition Act, should have a narrow meaning than they have in section 44 of the Transfer of Property Act. If the Legislature intended that section 4 should have limited operation, we should expect to find some indication of this in the language of the section. For example, instead of the words ‘undivided family’ the expression ‘undivided Hindu family’ or ‘joint family’ might have been used.

In Dorab Cawasji Warden vs Coomi Sorab Warden & Ors on 13 February, 1990 ( 1990 AIR 867) or ( 1990 SCR (1) 332)

The facts in the instant case is the appellant and his brother Sohrab came to hold an equal undivided one half share each as tenants in common in respect of the said property. After Sohrab’s death, his widow, the first respondent, and his minor sons, the second and third respondents, sold on 16th April, 1987 their undivided one half share in the property to the fourth respondent and his wife. On 18th April, 1987
the appellant filed a suit under section 44 of the Transfer of Property Act against the respondents inter alia on the ground that the suit property was a dwelling house belonging to an undivided family and therefore the fourth respondent who was a stranger to the family had no right to have joint possession or common enjoyment of the property on the basis of purchase of undivided share.
Court of Honble Justice LM Sharma Observed that Even if the family is divided in status in the sense that they were holding the property as tenants in common but undivided qua the property, that is, the property had not been divided by metes and bounds, it would be within the provisions of section 44 of the Act.
In the absence of a documents evidencing partition of the suit house by metes and bounds and on the documentary evidence showing that the property is held by the appellant and his brother in equal undivided shares, the plaintiff- appellant has shown a prima facie case that the dwelling house belonged to an undivided family consisting of himself and his brother. Therefore, the transfer by defendants 1 to 3 would come within the mischief of second paragraph of section 44 of the Act.
Clause 6 of the agreement to sell clearly shows that the fourth respondent knew that respondents 1 to 3 had only a limited right to transfer their undivided one half share to a stranger purchaser and they contemplated litigation in this regard. The said sale was itself hurriedly executed in a hush-hush manner keeping the entire transaction secret from the appellant. The purchasers were also inducted in the premises in a manner which clearly suggests that the
respondents were attempting to forestall the situation and to gain an undue advantage in hurried and clandestine manner defeating the appellant’s attempt to go to court for appropriate relief. The respondents in such circumstances cannot be permitted to take advantage of their own acts and defeat the claim of the appellant in the suit by saying that old cause of action under section 44 of the Transfer of Property Act no longer survived in view of their taking possession. Thus the entire case clearly establish that not only a refusal to grant an interim mandatory in- junction will do irreparable injury to the appellant but also balance of convenience is in favour of the appellant for the grant of such injunction. Hence injunction granted.
Bench

Bench of Hon’ble Justice Mukundakam Sharma and B.S. Chauhan of Hon’ble Supreme Court in Ramdas vs Sitabai & Ors on 29 May, 2009 reaffirmed the above ratio and categorically stated that an undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court.

Conclusion

The section 44 of the TP Act gives right to a stranger to purchase the property however limits it subject to conditions set down by the seller at the time of selling whereas the section 4 of the partition act gives the co sharer right to pre-emption i.e. first right to purchase the undivided co-sharer -sold property.
These both sections perform a pious work to save tradition or dignity of a family from illegal, undue encroachment by a stranger.