Is Prior Partition a Prerequisite for Sale Under Section 44 of the Transfer of Property Act?

The Transfer of Property Act, 1882 (TPA), is a central statute governing the transfer of immovable property in India. Among its key provisions is Section 44, which enables a co-owner of a property to transfer their share. This has given rise to an important legal question: can a co-owner sell their undivided share in the property without a prior partition? This issue was examined in the recent Delhi High Court decision in Raju Sardana v. Pawan Arya & Ors. (2025), which offers judicial clarity on the applicability and limits of Section 44 TPA.

Statutory Provision: Section 44 of the Transfer of Property Act, 1882

Section 44 – Transfer by One Co-owner

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:

• the transferor’s right to joint possession or other common or part enjoyment of the property, and
• the right to enforce partition of the same,

subject to any conditions and liabilities affecting the transferred share at the time of transfer.

However, if the property is a dwelling house that belongs to an undivided family, and the transferee is not a family member, then:

• The transferee is not entitled to joint possession or common enjoyment of the house.

Case Background: Raju Sardana v. Pawan Arya & Ors.

Facts of the Case

• The petitioner, Raju Sardana, and Respondent No. 4 were co-owners of property at West Patel Nagar, New Delhi.
• A collaboration agreement was executed in 2009 with Respondents 2 and 3 (builders) to construct floors on the said property.
• Before construction completed, Respondents 2 and 3 entered into an agreement to sell the second floor to Respondent No. 1.
• Respondent No. 1, who owned an adjoining property, connected it with the second floor and took possession.
• The petitioner filed for cancellation of the sale agreement, asserting the second floor had not been completed or demarcated and Respondents 2 and 3 had no title to sell.
• Separately, a settlement was reached between Respondent No. 1 and Respondent No. 4 (co-owner), whereby Respondent No. 4 agreed to sell her 50% undivided share to Respondent No. 1.
• The petitioner was not party to this compromise.

Issue

• Can a co-owner transfer an undivided share in immovable property without a prior partition?

Contentions of the Parties

Petitioner’s Argument

• The compromise between the Respondents was collusive and meant to defeat the petitioner’s rights.
• Since the property was not partitioned, Respondent No. 4 could not sell any specific part of the property.
• The compromise would affect the petitioner’s civil suit for possession and ownership of 50% share.

Respondent’s Argument

• Section 44 expressly allows the sale of an undivided share.
• The buyer only acquires the rights the seller had – i.e., the right to seek partition.
• No prejudice is caused to the petitioner, whose rights remain intact.

High Court’s Reasoning and Judgment

Justice Amit Mahajan, of the Delhi High Court, examined the applicability of Section 44 of the Transfer of Property Act and relevant precedents.

Key Observations:

1. Right to Transfer Exists Even if Share is Undivided

Citing Kartar Singh v. Harjinder Singh [(1990) 3 SCC 517], the Court emphasised:

“Whenever a share in the property is sold, the vendee has a right to apply for the partition of the property and get the share demarcated.”

2. No Embargo in Law

Reiterating Nasib Kaur v. Col. Surat Singh [(2013) 5 SCC 218], the Court observed:

“Unpartitioned share in joint property can be sold by a joint holder prior to partition, subject to the buyer acquiring only the seller’s interest.”

3. Section 44 Explicitly Permits It

The Court reaffirmed that there is no legal requirement of prior partition before a co-owner can sell their share. The only restriction is that the buyer cannot claim joint possession in a dwelling house unless they are a family member.

4. Settlement Not Binding on Non-party

Although Respondent No. 4’s sale of her undivided share was valid, the settlement was not binding on the petitioner since he was not a party to it. His claim to his own 50% share remains unaffected.

The Court dismissed the petition and upheld the ADJ’s decision that Section 44 does not bar such a transfer and that no prejudice is caused to the petitioner’s rights by the sale of an undivided share.

Analysis of Judicial Precedents

1. Kartar Singh v. Harjinder Singh (1990) 3 SCC 517

The Supreme Court ruled that the sale of undivided property is valid and specific performance is not barred just because partition hasn’t occurred.

2. Nasib Kaur v. Col. Surat Singh (2013) 5 SCC 218

Held that the purchaser of an undivided share steps into the shoes of the transferor, and the transaction is subject to partition proceedings.

3. Ramdas v. Sitabai (2009) 7 SCC 444

A person cannot transfer a greater right than he possesses. A co-owner can only transfer their existing share.

Key Highlights of the Judgment

Justice Amit Mahajan observed:

“Much emphasis has been placed by the petitioner on the fact that the settlement entered into by Respondent No. 4 in respect of her share in the second floor of the suit property would prejudice the civil suit filed by the petitioner since the property has not been partitioned. As discussed above, 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.

Even otherwise, it is pertinent to note that the petitioner and his mother have filed a civil suit seeking 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. The said prayer for declaration will not be affected only because Respondent No. 4 sold her interest in respect of the second floor of the suit property. The same, thus, in the opinion of this Court would not affect the rights of the petitioner in the suit property or cause any prejudice to the petitioner.”

Implications of the Judgment

1. Affirms Rights of Co-owners: Reinforces that a co-owner may alienate their share without prior partition.
2. Protects Non-consenting Co-owners: Confirms that other co-owners not part of a transaction are not prejudiced or bound by it.
3. Validates Sale Without Demarcation: Purchasers acquire rights subject to existing co-ownership and can pursue partition legally.
4. Highlights Importance of Buyer Awareness: Buyers of undivided shares must understand they are not acquiring exclusive possession and may face partition suits.

Exceptions and Limitations

While Section 44 allows transfer of undivided shares, there are limitations:

• Dwelling House Restriction: If the property is a dwelling house of an undivided family, the non-family buyer cannot claim joint possession.
• Subject to Partition: The transferee’s rights are only as good as the transferor’s and remain subject to partition outcomes.
• No Exclusive Possession: A buyer cannot claim possession of a specific part without consent or partition.

Conclusion

The judgment in Raju Sardana v. Pawan Arya & Ors. offers a decisive answer to a recurring legal question. Prior partition is not a prerequisite for sale under Section 44 of the Transfer of Property Act. A co-owner has the legal right to transfer their undivided share, and the buyer acquires the right to joint enjoyment and partition, not exclusive possession. However, this transfer does not bind the non-consenting co-owners or affect their rights, ensuring a balance between property rights and co-ownership protections.