Can out­siders claim joint pos­ses­sion of co-owned homes?

Out­siders buy­ing a share in a joint fam­ily home can get pos­ses­sion of their share by fil­ing a case for pos­ses­sion and claim­ing sep­a­ra­tion

HT Estates - - HTESTATES - Su­nil Tyagi

Any im­move­able prop­erty j ointly owned be­comes a co- owned prop­erty and its own­ers be­come co-own­ers. In most cases, joint fam­ily prop­er­ties are jointly owned by sev­eral fam­ily mem­bers, each hav­ing an un­di­vided share. A co-owner of a prop­erty is en­ti­tled to two ba­sic rights – joint pos­ses­sion of the prop­erty and the right to get his or her share par­ti­tioned to be in a po­si­tion to en­joy his own share sep­a­rately and with­out in­ter­rup­tion or in­ter­fer­ence by his other coown­ers.

The fact that a joint prop­erty has not been di­vided and owned by sev­eral co-own­ers does not af­fect the right of a co-owner to con­vey his in­ter­est or share in the house to an out­sider. When one co-owner trans­fers his share in the joint prop­erty, the buyer stands in the shoes of the seller or co-owner, gets his rights and en­ti­tle­ments and is sub­jected to the same li­a­bil­i­ties as that of the co-sharer sell­ing his share.

It has of­ten been seen that a co-owner sells his un­di­vided share in the joint fam­ily house to a per­son who is not a mem­ber of the joint fam­ily (ie an out­sider/ stranger). Care should be taken by an out­sider while pur­chas­ing a share of a co-owner of a prop­erty. Re­mem­ber, there is no pro­vi­sion under the Trans­fer of Prop­erty Act, 1882, which says that a co-sharer must only sell his/ her share to an­other cosharer. The Act says that the out­sider/stranger pur­chas­ing a share of a joint fam­ily house gets no right to joint pos­ses­sion or com­mon en­joy­ment of the house.

The Act em­pha­sises on pro­tec­tion of in­ter­est and pri­vacy of joint Hindu fam­ily homes. The ob­jec­tive is to pre­vent the in­tru­sion of strangers into the fam­ily homes, which are al­lowed to be oc­cu­pied by the mem­bers of the fam­ily alone in spite of the trans­fer of a co-owner’s share to a stranger/out­sider.

The stranger/out­sider buy­ing a share in a joint prop­erty is de­barred by law from ex­er­cis­ing his right to joint pos­ses­sion over the house. How­ever, he can get pos­ses­sion of his share in the joint fam­ily house by fil­ing a case for pos­ses­sion and claim­ing sep­a­ra­tion of his share.

This has also been held by the courts in In­dia time and again. In the Gau­tam Paul ver­sus Debi Rani Paul and oth­ers case, the Supreme Court, in­ter alia, also af­firmed the above propo­si­tion.

Thus, the trans­feree (stranger /out­sider) does not be­come en­ti­tled to joint pos­ses­sion or other com­mon or part en­joy­ment of the joint fam­ily home sim­ply by pur­chas­ing a por­tion thereof from a co-owner. How­ever, he would have the right to en­force a par­ti­tion of his share if he files a suit for the same in court.

It is im­por­tant to note that in such a case when a stranger /out­sider buyer files a suit for par­ti­tion of his share in the joint fam­ily house, the pro­vi­sions of the Par­ti­tion Act come into play. Ac­cord­ing to th­ese pro­vi­sions, a co- sharer has a pre-emp­tive to pur­chase the share sold to an out­sider/ stranger. We will dis­cuss this right of pre- emp­tion of a co-

sharer in the next ar­ti­cle.

Newspapers in English

Newspapers from India

© PressReader. All rights reserved.