Section 44 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
When one of several co-owners sells his share, what does the buyer actually get? Section 44 of the Transfer of Property Act, 1882 answers in two paragraphs: the first gives the buyer the seller's rights, subject to existing conditions and liabilities, and the second limits what an outsider can claim in a family's dwelling-house. This article reads it as per the text of the Act consulted.
Where one of two or more co-owners of immovable property, legally competent in that behalf, transfers his share or any interest in it, the transferee acquires, so far as necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property and to enforce a partition, but subject to the conditions and liabilities affecting the share at the date of transfer. Second paragraph: where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in the section entitles him to joint possession or other common or part enjoyment of the house.
First paragraph: what the buyer of a co-owner's share gets
Section 44 begins: "Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred."
It has five working parts.
| Part | Meaning |
|---|---|
| One of two or more co-owners | The section is about a share held together with others |
| "Legally competent in that behalf" | The co-owner must be legally able to make the transfer; see section 7 and our article on persons competent to transfer property |
| Transfers his share or any interest in it | The transfer may be of the whole share or of a lesser interest |
| The transferee acquires the transferor's rights | The right to joint possession or other common or part enjoyment, and the right to enforce a partition, so far as necessary to give effect to the transfer |
| Subject to conditions and liabilities | The buyer takes the share as it stood at the date of transfer, with any burdens |
The buyer therefore steps into the seller's shoes for that share. He does not get more than the seller had, and he takes the burdens along with the benefits.
Example. Rakesh, Sunil and Tarun Mehra own a commercial plot in equal shares. Rakesh, who is legally competent to transfer, sells his one-third share to Vandana Rao. Vandana acquires Rakesh's right to joint possession or common enjoyment of the plot, and the right to enforce a partition, to the extent needed to give effect to the sale. If Rakesh's share was already subject to a charge or a lease on the date of transfer, Vandana takes it subject to that.
Because the buyer takes the share subject to existing conditions and liabilities, checking what burdens the share carries is essential; a legal due diligence review of the title chain, the other co-owners' rights and any loans or leases before you pay is the safer course. Our existing post on sale of immovable property under section 54 covers the sale rules, and the form and registration of the sale are matters for that section and the registration law, not for section 44.
What section 44 does not say
- It does not say that the other co-owners must consent to the sale of a share. The text is silent on consent; whether another law requires it for your property should be checked.
- It does not set the procedure for partition. The text speaks only of the right "to enforce a partition", and the procedure belongs elsewhere.
- It does not describe a right of pre-emption or any first right for the other co-owners. The text says nothing about it; check the law that applies to your property and State.
Second paragraph: share of a family's dwelling-house
The second paragraph reads: "Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house."
The conditions for this paragraph are:
- the property is a dwelling-house;
- it belongs to an undivided family;
- the transferee holds a share of it; and
- the transferee is not a member of the family.
The result is that "nothing in this section" entitles him to joint possession or other common or part enjoyment of the house. The words are limited. They say that section 44 does not give this entitlement. They do not say what other rights the outsider has, and the text is silent on that. A buyer in this position should seek advice on what rights, if any, exist under other laws or under the terms of his deed.
Example. The Kapoor family lives together in an undivided family house. One family member, Anil, sells his share in the house to an outsider, Deepak Nair. Under the second paragraph, section 44 does not entitle Deepak to joint possession of the house or to common or part enjoyment of it. Deepak should not assume he can move in or use a room. What else he may be entitled to is not answered by this section.
Local family law and custom may bear on what an "undivided family" is. This Act does not define it. Check the law that applies to your family and State.
Comparison of the two paragraphs
| Point | First paragraph | Second paragraph |
|---|---|---|
| Property | Immovable property held by two or more co-owners | A dwelling-house of an undivided family |
| Transferee | Any transferee of a co-owner's share | A transferee who is not a family member |
| Right to joint possession or common enjoyment | Acquired, so far as necessary to give effect to the transfer | Not given by this section |
| Right to enforce partition | Acquired, subject to the same limits | Not mentioned in this paragraph |
| Burdens | Subject to conditions and liabilities at the date of transfer | Not mentioned |
Practical checklist for a buyer of a share
- Confirm that the seller is a co-owner and is legally competent to transfer.
- Ask for the title papers of all co-owners, and find out each share.
- Look for loans, leases, charges and other liabilities attached to the share, because you take the share subject to them.
- If the property is a family dwelling-house, find out whether you will be treated as a member of the family; if not, do not rely on a right to live in it under this section.
- Make sure the sale is made in the form and with the registration the law requires.
- Keep the other co-owners informed in writing if you plan to ask for possession or partition.
Practical checklist for a co-owner who wants to sell
- Tell the buyer about every lease, loan or charge on your share.
- Describe your share precisely, by fraction and by area where possible.
- If the property is a family house, tell the buyer that the second paragraph may limit his rights.
- Settle accounts for rent and profits to the date of sale; see our article on sections 36 and 37, apportionment.
Need help buying or selling a share in a shared property?
A share in a jointly owned property can come with burdens and limits that are not obvious from the sale papers. Our team can examine the title and the co-ownership position through legal due diligence.
Key takeaways
- A transferee of a co-owner's share acquires, so far as necessary, the transferor's right to joint possession or common or part enjoyment and to enforce partition.
- The share passes subject to the conditions and liabilities affecting it at the date of transfer.
- The transferor must be legally competent in that behalf.
- A transferee who is not a member of an undivided family gets no entitlement under this section to joint possession or common or part enjoyment of the family's dwelling-house.
- The section does not mention consent of other co-owners; it is silent on that.
- Later amendments and State changes should be checked.
Read next
- Section 43: transfer by unauthorised person who later acquires interest
- Sections 45 to 47: joint purchase and sale by co-owners of shares
- Section 7: persons competent to transfer property
- Sale of Immovable Property -- Section 54
Disclaimer: Based on a publisher's print of the Transfer of Property Act, 1882 showing amendments up to the Transfer of Property (Amendment) Act, 2002 (3 of 2003), as consulted on 2 October 2026. State amendments, later amendments, stamp duty and registration charges are not covered and should be checked. This article is general information, not legal advice; check the official text before acting.