Co-own­ers can buy share of out­siders seek­ing par­ti­tion of fam­ily prop­erty

Section 4 of The Par­ti­tion Act, 1893, says that any mem­ber who has an un­di­vided share in a joint fam­ily prop­erty can buy the share of an out­sider seek­ing par­ti­tion and sep­a­rate pos­ses­sion

HT Estates - - HTESTATES - Su­nil Tyagi

Any prop­erty jointly ow n e d , b e c o m e s a co- owned prop­erty and its own­ers be­come co-own­ers. co-owner is en­ti­tled to the ba­sic right of joint en­joy­ment or pos­ses­sion of the prop­erty.

The fact that a joint prop­erty has not been di­vided and is owned by sev­eral co-own­ers, does not cur­tail the right of a co-owner to give his share to an out­sider.

Of­ten a co-owner sells his un­di­vided share to a per­son who is not a mem­ber of the joint fam­ily (ie an out­sider). How­ever, mere trans­fer or sale of a co-owner’s share doesn’t en­ti­tle an out­sider to take pos­ses­sion of the prop­erty.

The Trans­fer of Prop­erty Act, 1882, says that an out­sider pur­chas­ing a share of a joint fam­ily house has no right to joint pos­ses­sion or com­mon en­joy­ment of the house.

How­ever, he will have the right to en­force a par­ti­tion of his share if he files a suit for the same in court. He can also get sep­a­rate pos­ses­sion of his share in a joint fam­ily house. In such a sce­nario, in­con­ve­nience can be caused to other co-own­ers of the un­di­vided fam­ily as an out­sider will get their fam­ily prop­erty. It is for this rea­son that the leg­is­la­ture has granted pro­tec­tion to other mem­bers of the un­di­vided fam­ily.

This pro­tec­tion is given under Section 4 of The Par­ti­tion Act, 1893, to the co-own­ers of the un­di­vided fam­ily. The section says that when an out­sider files a suit for par­ti­tion and sep­a­rate pos­ses­sion of the un­di­vided share is trans­ferred to him by a co-owner of an un­di­vided fam­ily, any other mem­bers of the fam­ily, who have an un­di­vided share in the house, can buy the out­sider’s share.

In such a sce­nario, the court val­ues the share of the out­sider and di­rects the other co-owner, who is willling to buy the share, to pay such value to the out­sider. After pay­ment of such value, the out­sider will no longer be the coowner and can­not claim par­ti­tion and sep­a­rate pos­ses­sion of his share in the house.

A co-owner of an un­di­vided fam­ily prop­erty can trans­fer his share to an out­sider. How­ever, the other co-own­ers of the fam­ily are pro­tected and have the op­tion of buy­ing the share from the out­sider.

An­other ques­tion that needs to be ad­dressed is whether a coowner can claim and buy a share sold by his fam­ily mem­ber to an out­sider even if the out­sider has not made any claim for par­ti­tion and sep­a­rate pos­ses­sion of his share.

The Supreme Court has clar­i­fied the le­gal po­si­tion in the Oc­to­ber 2000 judg­ment of Gau­tam Paul vs Debi Rani. The court held that other co-own­ers of an un­di­vided fam­ily can buy an out­sider’s share only when the out­sider seeks par­ti­tion and sep­a­rate pos­ses­sion of the share sold to him or her.

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