Although the concept of nuclear families is gaining momentum in India, many joint families continue to own a common dwelling house and live together in it. In such joint families, members own an undivided and unspecified share in the property and enjoy common possession.
However, numerous disputes have arisen when a particular family member has attempted to transfer his undivided share in the family’s joint property to a stranger/ non-family member. Family members usually protest worrying that the stranger may interfere with their customs and traditions or disturb their peaceful common possession.
Such disputes put at stake the rights and interests of all persons involved – the family member who sells his undivided share, the stranger who purchases such undivided share in good faith, as well as other family members who continue to jointly own and inhabit the property. Hence, it is important to know the legal provisions governing sale of undivided share in a dwelling house.
Rights of the buyer
Section 44 of Transfer of Property Act, 1882, deals with the case of a stranger/ non-family member who purchases a share in an undivided dwelling house which is otherwise owned by a joint family. The section specifies that such a stranger does not automatically get the right to joint possession or common enjoyment of the property. The legislature enacted this provision to protect family members of an undivided family property against intrusion by an outsider. However, this restriction is not absolute and is eased by Section 4 of Partition Act, 1893. Under this section, a co-owner is entitled to sue for partition and claim separation and possession of his share in the dwelling house.
Rights of other co-owners
In the event the buyer files a suit for partition of the dwelling house, any family member who owns an undivided share in the property is entitled to put forward his claim of preemption. In other words, law provides such family member the opportunity to buy back the share of the stranger coowner. In such cases, the court makes a valuation of the share belonging to the stranger coowner. Upon payment of this value by the claimant family member to the stranger coowner, the stranger co-owner is not left with any right in the property and can effectively be denied entry in the dwelling house.
However, family members do not have a right to purchase the stranger’s share anytime they want or desire. Where there has been a sale of an undivided share in a dwelling house to an outsider, a co-sharer cannot simply file a suit for partition for claiming a right to buy back the stranger’s share. The valuable right to buy back the share of the stranger only arises when the stranger himself has filed a suit for partition and possession. This way, the legislature in its wisdom has struck a balance between the rights of family members on one hand and rights of buyers who are not family members on the other. The author is a senior partner of ZEUS Law Associates, a corporate commercial law firm. One of its areas of specialisation is real estate transactional/litigation work
Courtesy – HT Estates – Dt -30/11/2013