Co-Ownership and the Dwelling-House Exception: Rights of a Transferee in Partition Suits

Property held in co-ownership often leads to disputes when one co-owner decides to transfer or sell their undivided share. Unlike an independent property, a co-owner’s share is not carved out in physical terms until partition. This creates a tension between the rights of the transferee, who acquires an interest in the property, and the rights of the remaining co-owners, who may resist joint possession by an outsider. Indian courts have consistently navigated this tension by recognising the transferee’s right to seek partition, while also protecting the sanctity of a family dwelling-house through what is known as the dwelling-house exception.

The law in this field balances commercial reality with cultural considerations. On one hand, every co-owner must have the freedom to deal with his share. On the other, the law guards against unsettling the privacy and character of a family residence by preventing an outsider from intruding into the joint home without partition. 

Rights of the Transferee in Co-Owned Property

When a co-owner sells his undivided share, the transferee steps into the shoes of that co-owner. The transfer is valid under the Transfer of Property Act, 1882, because each co-owner has a defined though undivided interest that he is legally entitled to alienate. The transferee, therefore, becomes a tenant-in-common with the remaining co-owners.

The transferee’s rights include seeking partition of the property to realise the share he has purchased. This right to file a suit for partition by transferee is well established in judicial precedent. Courts have consistently recognised that although the transferee cannot claim any specific portion before partition, he has the right to demand a division of the property through legal proceedings.

However, the transferee’s right is not unlimited. Until partition is effected, he cannot exercise exclusive possession over any part of the property. His possession is joint, mirroring the nature of the co-owner’s interest from whom he purchased. This concept of transferee joint possession means the buyer shares possession with the other co-owners without disturbing their enjoyment until the property is formally divided.

The balance between ownership rights and possession rights becomes especially significant in the case of family dwelling-houses, where the law introduces a unique protective mechanism for existing co-owners.

The Dwelling-House Exception

Section 44 of the Transfer of Property Act introduces what is known as the dwelling-house exception. It specifically protects a family dwelling from being disturbed by an outsider who purchases a co-owner’s share. While the transferee is legally recognised as a co-owner, he cannot claim joint possession of the family home or physically intrude into its occupation.

The rationale behind this exception is deeply rooted in the protection of family privacy and domestic harmony. Indian courts have repeatedly stressed that permitting an outsider to move into a joint family residence would cause discomfort and dislocation for the existing members. Therefore, while the transferee retains the right to demand partition, he must do so through court proceedings rather than through physical entry or joint use of the dwelling.

Recent judgements have reaffirmed that the exception applies only to residential family homes and not to commercial or tenanted properties. In such cases, the transferee cannot be granted possession until partition, but he can still pursue his interest through a suit for partition by transferee. The courts may order a sale of the share, or if division is possible, allot a specific portion to the transferee, thus reconciling the outsider’s investment with the co-owners’ right to exclude him from the dwelling-house until then.

Remedies and Judicial Approach

For a transferee, the most effective remedy is to institute a suit for partition by transferee. Once partition is decreed, the transferee can either be allotted a specific portion of the property or, if physical division is not feasible, claim his share in the proceeds of sale. Courts generally encourage a sale of the share rather than physical disruption of a dwelling-house if it risks fracturing the living arrangements of the family.

The judiciary has drawn a fine line: while it upholds the transferee’s investment, it also ensures that the sanctity of the family home is not diluted by forced joint occupation with strangers. The doctrine of transferee joint possession is thus subject to the dwelling-house exception. Until partition is complete, the transferee cannot insist on moving into the property, even though he has a legal stake in it.

Over the years, courts have also discouraged co-owners from using the dwelling-house exception as a shield to indefinitely block the rights of a transferee. Delay or refusal to partition cannot extinguish the transferee’s rights. Instead, the court steps in to balance equities—ensuring co-owners preserve their privacy while the transferee realises his lawful share. This approach reflects the law’s attempt to maintain fairness on both sides: protection of the family’s way of life and recognition of the transferee’s bona fide ownership.

Conclusion

The sale of an undivided share by a co-owner creates a complex intersection of rights. On one hand, the transferee rightfully acquires an interest in the property and can seek division through a suit for partition by transferee. On the other, his enjoyment of the property is curtailed by the principle of transferee joint possession and, more specifically, by the dwelling-house exception in the case of family homes.

This balance underscores the unique nature of Indian property law: it does not treat ownership as a purely economic interest but recognises the cultural and social value of the family dwelling. By requiring partition before possession, the law ensures that privacy and family unity are respected, while also preventing the transferee from being deprived of his investment.

In practice, the courts act as mediators of fairness. They protect the co-owners’ right to live undisturbed while ensuring the transferee’s stake is neither nullified nor left in limbo. For buyers, this makes due diligence essential before investing in a co-owner’s share of a dwelling-house. For families, it provides assurance that the law respects the integrity of their home even in the face of property disputes.

FAQs on Co-Owner’s Sale, Transferee Rights, and the Dwelling-House Exception

Q1. Can a co-owner sell his undivided share without the consent of other co-owners?

Yes. Under the Transfer of Property Act, each co-owner has a defined though undivided share that he can transfer without requiring consent. The transferee then acquires the same rights the selling co-owner had.

Q2. What rights does the transferee have after purchasing a co-owner’s share?

The transferee steps into the shoes of the seller. He has the right to joint ownership and can file a suit for partition by transferee to carve out a separate share. However, until partition, his possession is only in the nature of transferee joint possession, not exclusive enjoyment.

Q3. What is the dwelling-house exception under Section 44 of the Transfer of Property Act?

The dwelling-house exception prevents a transferee (outsider) from claiming physical possession of a family residence until partition is completed. It protects the privacy and integrity of the family dwelling.

Q4. Can the transferee move into the family dwelling immediately after purchase?

No. Even though he acquires ownership rights, the transferee cannot move in or insist on living jointly with the family. He must seek partition through court.

Q5. What remedies are available if co-owners refuse partition?

The transferee can approach the court to seek partition. If physical division is not possible, courts may order sale of the property and distribution of proceeds, ensuring the transferee’s share is realised.

Q6. Does the dwelling-house exception apply to all types of properties?

No. The exception applies only to family residences. Commercial properties, rented properties, or properties not used as a family dwelling do not enjoy this protection.

Q7. Can the other co-owners buy out the transferee’s share?

Yes. Courts often permit co-owners to purchase the transferee’s share at a fair value to prevent disruption of the dwelling-house, balancing the transferee’s investment with family privacy.