Delhi High Court: In a petition challenging an order dated 9-4-2018 (‘impugned order’), wherein the suit for specific performance filed by Respondent 1 was partly decreed in his favour in terms of the compromise arrived between Respondent 1 and Respondent 4, Amit Mahajan, J., held that there is no bar under Section 44 of the Transfer of Property Act, 1882 (‘TPA’) to sell undivided share in the joint property. The Court stated that the Respondent 4 being the co-owner of the suit property, had the right to enter into a settlement with Respondent 1 with respect to her undivided share in the suit property. Further, the rights of the petitioner would not be affected in the suit property and would not cause any prejudice to the petitioner. Therefore, the Court set aside the said impugned order.
Background
The petitioner though his mother and Respondent 4 entered into a collaboration agreement with Respondents 2 and 3 for the work of construction. In accordance with the collaboration agreement, Respondents 2 and 3 were to complete the work of construction within a period of 12 months. Further, post the completion of the work, Respondent 2 and 3 were to retain the second floor of the suit property. Prior to the completion of construction, the Respondents 2 and 3 entered into an agreement, for selling the second floor of the suit property to Respondent 1, who was stated to be the owner of the adjoining property. Respondent 1 further connected the second floor of his property with the second floor of the suit property and took possession of the same.
Later, Respondents 2 and 3 failed to carry out the construction work within the stipulated time. The petitioner claimed that since Respondents 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 Respondents 2 and 3’s favour for them to alienate any right, title or interest in favour of Respondent 1. Hence, petitioner cancelled the collaboration agreement and asked Respondent 1 to vacate the suit property.
Thereafter, Respondent 1 filed a suit for specific performance to execute a registered sale deed in respect of the second floor of the suit property. Simultaneously, the Petitioner and his mother also filed a Civil Suit seeking a declaration that the Petitioner’s mother was the owner of 50% undivided share in the second floor of the suit property and the joint owner of the suit property. Subsequently, the matter was transferred to Mediation, wherein Respondent 1 entered into a settlement with Respondents 2-4 as per which Respondent 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 1. The Petitioner was not made a party to the said settlement.
The petitioner was essentially aggrieved that the suit for specific performance preferred by Respondent 1 was decreed in his favour based on the compromise and the same could not have been done without there being a demarcation of the suit property. The petitioner contended that the impugned order was passed based on an unlawful compromise and contrary to intent of Section 44 of TPA.
Analysis, Law, and Decision
The Court noted that as per the impugned order, the Respondent 4 being the co-owner of the Suit Property, had the right to enter into a settlement with Respondent 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. Impugned order also stated that, in terms of Section 44 of the TPA, there existed no bar to sell undivided share of the suit property.
Discarding the contentions of the petitioner in the present case, the Court agreed with Respondent 1 and stated that the impugned order was reasoned and warranted no interference by the Court. He submitted that in terms of Section 44 of the TPA, there was no bar on the co-owner to sell undivided share of the suit property.
The Court stated that Section 44 of the TPA provides for the right of the co-owner to transfer his share in the joint property. In doing so, Section 44 provides that where one or more of the co-owners of an immoveable property transfer their share or any interest in such property, the transferee acquires in respect of such share or interest and as far as necessary, the transferor’s right to joint possession or other common or part enjoyment of the property. Further, it was pertinent to note that while Section 44 of the TPA provides that a person could not transfer a right greater than he himself had, however, the same did not preclude the co-owner from transferring his share in the joint property only for the reason that the same was unpartitioned/undivided.
The Court further stated that the Respondent 4 was not precluded from transferring her interest in the joint property prior to the partition. Therefore, the Court held 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. Hence, the petition was accordingly dismissed by the Court.
[Raju Sardana v. Pawan Arya, C.R.P. 159 of 2018, decided on 11-06-2025]
Judgment authored by- Justice Amit Mahajan
Advocates who appeared in this case :
For the Petitioner: Akash Vajpai, Advocates.
For the Respondents: Ravi Sharma and Harish Kishore, Advocates.
