A co-owner in a joint property can transfer rights to a person (the transferee) who is not a member of the Hindu Undivided Family that owns the property jointly. However, the transferee will not be entitled to joint possession of the property or to live in it till the time such immovable property is the dwelling place of the rest of the family, according to section 44 of the Transfer of Property Act, 1882. This law was essentially passed to protect the rights of joint families and specifies the rights of co-owners to transfer their share and the rights of the person to whom the property is transferred.
Who is a co-owner?
A co-owner of a property in most cases is a member of the same family. In some cases, a co-owner can be appointed by a will written in his favour. A co-owner may either own equal rights to use the property like others or may have a portion of the property in his name.
In case there are more than two co-owners of the same property and one of the co-owners dies, his share automatically passes to his dependants or to other co-owners. For example, if three brothers inherit an ancestral property, all three will be co-owners of the property. If one of them dies, the rights of his share of the property passes on to two surviving brothers or his dependants.
Under the law, a co-owner is entitled to three basic elements of ownership—right to possession, right to use and right to dispose of the property.
When can a share be transferred?
The co-owner can sell or transfer his portion only when he has exclusive rights to that portion of the property. If the exclusive rights are not entitled to each co-owner, such transfer of rights cannot take place without the consent of other joint co-owners.
In the above example, if the three brothers share separate rights on three separate portions of the property and one of the brothers wants to sell his portion, he can sell his portion to a third person. However, if the portions have not been identified separately, all three of them will have equal rights over the entire property. In this case, none of the three would be able to sell their share without the consent of the other two brothers.
When does the transferee have rights?
If the immovable property transferred is not a dwelling house, the transferee can ask for the partition of the property to either use it or sell it off. The family who owns the rest of the property cannot oppose the move to sell or own the portion by the transferee.