Transfer By Co-Owners
Section 44 to 51 of the Transfer of the Property Act defines the "Transfer by co-owners".
1. Transfer by Co-Owner
2. Joint Transfer for Consideration
3. Transfer for Consideration by Persons having distinct interests
4. Transfer by co-owners of share in common property
5. Priority of rights created by transfer
6. Transferee's right under policy
7. Rent bona fide paid to holder under defective
8. Improvements made by bonafide holders under defective titles
Transfer by Co-Owner :
Section 44 of the act,When one of the several co-owners transfers his share,then the transferee acquires such share i.e., the transferor's right to joint possession or other common or part enjoyment of the property,and the right to enforce a portion of the same.These rights are subject to the conditions and liabilities affecting the transferred share.
The only exception is that if the share transferred is a share of a dwelling house belonging to an undivided family and the transferee is not a member of such family,the transferee is be entitled to joint possession.But the dwelling hpuse is completely divided and if the transferor's share is marked and capable of a seperate enjoyment,then the transferee can have possession of it.
Joint Transfer for Consideration :
Section 45 of the act,a property is transferred to two or more persons for consideration.There may not be any contract of each transferee's quantum of interest in the property.
Now the rule is the extent of interest of each transferee in the transferred property is identical to the extent of contribution to be fund.i.e., the respective share of each transferee in the contributed amount.
Transfer for Consideration by Persons having distinct interests :
Section 46 of the act is converse of section 45.when two or more persons having distinct interests in an immovable property sell their shares,they are entilted to share the sale money in proportion to the extent and value of their interest in the property.
Eg:- "A" owning a moiety and "B" and "c" each a quarter share,of mauza sultanpur,exchange an eighth share of that mauza for a quarter share of mauza Lalpura.There being no agreemant to the contrary,"A" is entitled to an eighth share in Lalpura and "B" and "C" each to a sixteenth share in that mauza.
Transfer by co-owners of share in common property :
Section 47 of the act,if a transfer is made by several co-owners in respect of a particular share in a property and if there is no mention a to how much of each particulars shares interest in the property sold,then the fraction of share transfer is taken as full share and proportion calculation is made.
Priority of rights created by transfer :
Section 48 of the act,if a person creates rights in the same immovable property by transfer at different times and if such rights cannoy at all exist or cannot be exercised to the full extent together,then created right is subject to the previously created rights.This is based on the maxim "Qui priorest tempore potior estujre" which means who is prior in time is better in law.
Eg:- "A" mortgages is house to "B" for Rs.50,000 and then subsequently mortgages to "C" for Rs.20,000.Now "B" mortgage is first and "C" mortgage is subsequent.If he house is sold the "B" mortgage dead must be first satisfied and if any surplus amount is there "C" can take it.
Transferee's right under policy:
Section 49 of the act,if an immovable property is transferred for consideration and if such property is insured against damage or loss by a fire,flood etc.,then the transferee can insist the transferor to use the money received from the insurance company to reinstate the damaged property.
Rent bona fide paid to holder under defective:
Section 50 of the act,if a tenant any payment bona fide to a person from whom he held the property and at a later date if it turns out that such persons had no right to receive the payment,the he need not once again make payment to the right person entilted to receive payment.However the tenant must have acted in good faith.
Eg:- "X" lets a field to "Y" at a rent of Rs.50 and then transfers the fields to "Z"."Y" having no notice of the transfer in good faith pays the rent to "X"."Y" is not chargeable with rent so paid.
Improvements made by bonafide holders under defective titles :
This section 51 of the act provides relief to transferees holding immovable properties under defective titles,but making improvements there on with bonafide intention.Suppose such a transferee is evicted from the immovable property by a person having better title then the transferee has the right to claim compensation for improvements made by him in the immovable proeprty.
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