Property, Real Estate, Transfer by Co-owner and Legal Implications

Property, Real Estate, Transfer by Co-owner and Legal Implications

In case of Raghvendra Jeet Singh v. Board of Revenue [2015] GCtR 6423 (Allahabad), issues related to property transactions were discussed. It was held that the document of release, merely, being without consideration would not qualify the instrument as an instrument of gift, for gift there must be a donor and a donee. 

A transaction to assume a character of conveyance, what is necessary is, transfer of interest from one co-owner to another co-owner. As against this, the provision of Article 55 of Schedule 1B of the Indian Stamp Act, 1899 stipulates that the release is that whereby a person renounces a claim upon another person or against any specified property.

The Explanation to the definition of conveyance under the Bombay Stamp Act refers to 'share' whereas the Uttar Pradesh amendment refers to 'defined share', thus the co-owner should have a defined share in the property which could be transferred.

While under the Mitakshara Hindu Law there is community of ownership and unity of possession of joint family property with all the members of the coparcenary, in a coparcenary governed by the Dayabhaga law, every coparcener takes a defined share in the property and he is the owner of that share. But there is unity of possession. The share does not fluctuate by births and death.

Where a coparcener expresses his individual intention in unequivocal language to separate himself from the rest of the family, that effects a partition, so far as he is concerned, from the rest of the family.

In H.U.F., the co-parceners do not have exclusive rights on any specific property of the family, the property allotted to their share become specified only on partition; same is the position in the case of a partner of a firm, though the co-parceners like partners of a firm have a definite share in the H.U.F./partnership.