No Bar Under Section 44 Transfer of Property Act To Sell Undivided Share In Joint Property: Delhi High Court

The Delhi High Court has held that there is no bar under Section 44 of the Transfer of Property Act to sell undivided share in the joint property.

The Court was considering a Petition filed against an order passed by the Additional District Judge whereby the Suit for Specific Performance was partly decreed in his favour in terms of the compromise.

The single bench of Justice Amit Mahajan observed, "....the learned ADJ rightly noted that there was no bar under Section 44 of the TPA to sell undivided share in the suit property. Consequently, the learned ADJ rightly noted that Respondent No. 4 being the co-owner of the suit property, had the right to enter into a settlement with Respondent No. 1 qua her undivided share in the second floor of the suit property....."

The Petitioner was represented by Advocate Akash Vajpai while the Respondent was represented by Advocate Ravi Sharma.

Facts of the Case

It was the Petitioner’s case that the Petitioner through his mother and Respondent No. 4 are co-owners of the property. The Petitioner and Respondent No. 4 entered into a collaboration agreement with Respondent Nos. 2 and 3 for the work of construction on the suit property. Post the completion of the work as stipulated under the collaboration agreement, Respondent Nos. 2 and 3 were to retain the second floor of the suit property. During such time, prior to the completion of construction, Respondent Nos. 2 and 3 entered into an agreement to sell for selling the second floor of the suit property to Respondent No. 1 who further connected the second floor of his property with the second floor of the suit property and also took possession of the same. It was the case of the Petitioner that Respondent Nos. 2 and 3 failed to carry out the construction work within the stipulated time. It was further the case of the Petitioner that since Respondent Nos. 2 and 3 failed to comply with the terms and conditions as stipulated in the collaboration agreement, no right, title or interest with respect to the second floor of the property existed in favour of Respondent Nos. 2 and 3 for them to alienate any right, title or interest in favour of Respondent No. 1.

In 2011, Respondent Nos. 2 and 3 served legal notice to the Petitioner to execute a general power of attorney as regards the second floor thereby transferring ownership to Respondent Nos. 2 and 3 to sell the same. The Petitioner cancelled the collaboration agreement and asked Respondent No. 1 to vacate the Suit Property. Respondent No. 1 thereafter filed a suit for specific performance praying for a decree of specific performance and a direction to Respondent Nos. 2 and 3 to perform their part of the contract signed in 2009 to execute a registered sale deed in respect of the second floor of the suit property.

During such time, the Petitioner and his mother also filed a Civil Suit seeking a declaration that the Petitioner’s mother is the owner of 50% undivided share in the second floor of the suit property and the joint owner of the suit property. Other reliefs such as cancellation of agreement to sell and decree of possession in respect of 50% undivided share of the second floor of the suit property were also sought. When the matter was transferred to Mediation, Respondent No. 1 entered into a settlement with Respondent Nos. 2-4 as per which Respondent No. 4, being co- owner of the suit property, agreed to execute a sale deed with respect to 50% share of the second floor of the suit property in favour of Respondent No. 1. The Petitioner was not made a party to the said settlement.

By the impugned order, the ADJ noted that Respondent No. 4 being the co-owner of the Suit Property, had the right to enter into a settlement with Respondent No. 1 qua her undivided share in the second floor of the suit property. It was noted that the settlement arrived at between the respondents was legal, however, the same was not binding upon the petitioner since he was not a party to the said settlement.

Counsel for the Petitioner submitted that the impugned order was passed based on an unlawful compromise between the Respondents which was a clear act of collusion in order to defeat the interests of the Petitioner.

Reasoning By Court

The Court at the outset looked into Section 44 of the Transfer of Property Act which provides for the right of the co-owner to transfer his share in the joint property.

"It is however pertinent to note that while Section 44 of the TPA provides that a person cannot transfer a right greater than he himself has [Ref: Ramdas v. Sitabai : (2009) 7 SCC 444], the same does not preclude the co-owner from transferring his share in the joint property only for the reason that the same is unpartitioned/undivided," the Court observed.

It referred to the Supreme Court's decision in Kartar Singh v. Harjinder Singh and Others and Nasib Kaur v. Col. Surat Singh wherein it was observed that the unpartitioned share in joint property can be sold by the joint holder prior to partition.

"It is not disputed that Respondent No. 4 is a co-owner in respect of 50% share of the suit property. In terms of the dictum of the Hon’ble Apex Court in Nasib Kaur v. Col. Surat Singh (supra) and Kartar Singh v. Harjinder Singh and Others(supra), Respondent No. 4 is not precluded from transferring her interest in the joint property prior to the partition," the Court held.

It emphasized that Section 44 of the TPA does not put an embargo on the sale by the co-owner of the unpartitioned/undivided share in joint property prior to the partition.

The Petition was accordingly dismissed.

Cause Title: Raju Sardana vs. Pawan Arya & Ors. (2025:DHC:4953)

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