Family Law

Transfer of Undivided Share in the property and

Partition amongst the transferee and the other co-owners;

(Sec. 44 of Transfer of Property Act, 1882 read with Sec. 4 of Partition Act, 1893)

Undivided share in property-The property of joint family, which has not been separated and demarcated as the respective share and can’t physically ascertainable with definite boundaries, are called Joint property and each shareholder are called co-owner of the property.The undefined share in property of co-owners are called “Undivided share in property”.

Undivided Share in the property can validly be transferred and transferee acquires right of share or interest of the transferor. Sale Deed by co-owner can’t be declared void for want of partition.

In case any one or more co-owner of immovable property transfers rights and title,out of his/their share of the property or interest thereon, the transferee acquires valid title over the share of transferor’s right, so transferred.Subject to the conditions and liabilities affecting at the date of the transferover the share or interest so transferred,the transferee shall have right to enforce a partition of the same.

Whereas in case of transfer by co-sharer, his share of  right & title in dwelling house, to the person not the member of family, the transferee shall not be entitled to joint possession and uses in common part of the house. This is in view that the stranger should not be allowed to enter into possession and to protect family privacy in dwelling house with other family member, who is co-owner. The co-owner can’t transfer more than his share of immovable property.It is provided UnderSection 4 of Partition Act 1893, that if the undivided share in dwelling house is transferred to the person, who is not the family member, the transferee can files case  for partition of the property. And in the present circumstances, if any member of the family being a co-owner shall undertake to buy the share of such transferee, the court shallmake a proper valuation and direct the sale of so transferred property to said shareholder, and may give all necessary and proper direction in that behalf.

Transfer of Property Act, 1882 –Sec. 44 –Where one of two or more co-owners of immovable property legally competent in that behalf transfer 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.”(Source – Transfer of Property Act, 1882)

Section 4 of Partition Act 1893 –Partition suit by transferee of share in dwelling house – (i) Where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the court shall, if any member of a family being a shareholder shall undertake to buy the share of such transferee,  make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper direction in that behalf.

(ii) If in any case described in sub-section (i) to or more of the family being such shareholders severally undertake to buy such share, the court shall follow the procedure prescribed by Sub-Section (ii) of last forgoing section.”(Source – Partition Act 1893)

The person who Purchase the undivided share from a co-owner in joint property,shall not be entitled to exclusive ownership and possession of any specific part of the property so transferred,but would be entitled to joint ownership or co-ownership. Under this section, on a transfer by a co-sharer in immovable property or of any interest therein, the transferee’s rights are –to joint possession or other common enjoyment of the property with the other co-sharer and to enforce partition of the property. At the same time his obligation in the share or interest at the date of transfer.

Transfer of Property Act does not make any difference on the basis of cast, creed or religion of the holder of the property. It is applicable to the property without making any such difference.

Concluding the issue, undivided share can be validly transferred and transferee acquires valid right of share or interest of the transferor. A transfer of undivided share can’t be declared invalid/void for want of partition.

Partition of immovable property;

Concept of ownership over the Immovable property contents all including rights to title, right to possession, right to usufructs (legal right of use and enjoy something) andright to transfer. Legal recognition ofownership (valid title) and peaceful possession (complete control over the property) entitle the owner to transfer the property. And the legally owned property, which is transferable, can be partitioned among the co-owner.The property which is not transferable can’t be partitioned.

Question of partition arises when there is more than one owner of the property, having joint possession and legally transferable right.Partition means to separate the individual share of each and every co-owner by dividing and demarcating properly.

Certain rules has been provided for partition of immovable property under The Partition Act 1893.

Section 2 of the act defines that if the partition suit is brought before the court, having territorial and pecuniary jurisdiction, in case there is several co-owner of the property and reasonably division of the property can’t be done, the court may direct to distribute the sale proceeds after sale of property.

Under Sec. 3 of the act, such procedure has been described that if the court gives direction of sale the property under Section 2 of the act, and any co-owner undertakes to buy the property, the court may direct transfer the property to the co-owner willing to buy, after proper valuation of the property.

UnderSection 4 of Partition Act 1893 defines the law of rights of co-owner, if the transferee sues for partition of the property.It is defined that if any co-owner undertake to buy the share of such transferee, the court may give  necessary and proper direction in that behalf. It is well settled that partition does not create title. It can be explained that Deed of partition is not the title deed.  It only enables a co-owner to obtain their definite and specific share out of valid joint title over the property. There is no bar, if the property is transferred jointly by all the co-owners.

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Bail and Parole

By WeLegal – December 25, 2020 0

Bail and Parole | welegal
What is Bail and Parole?

Bail is completely different from Parole. Both are not synonymous to each other and stand on different footing. Granting Bail is not to set the accused free from legal proceeding, but to release the accused from the custody of Law and to entrust him to the custody of his sureties who are bound to produce him to appear before the court as and when required at the trial stage. Bail is not guarantee of complete freedom.  The court while granting the bail Imposes certain conditions on the accused person and in the events of violation of the conditions, the court is quite competent to cancel the bail and discharge the sureties. Parole is normally granted to a prisoner to enable him have a pleasant family life for a short period. Parole therefore, is a conditional liberation which provides an opportunity to the prisoner to make adjustment in the community under the guidance of Parole Officer.

Bail is granted by the court at the pre-trail stage or trail stage, while Parole is granted while undergoing in imprisonment.  Parole means to release of a prisoner from the jail for a short period on the promise and undertaking given by the said prisoner that he will not escape after being released from the jail and will come back  after the stipulated period to undergo the remaining sentence again.

Procedure of granting Bail – Grant or refusal of Bail is very delicate matter and certainly needs a serious examination when the court decides against the accused person. There is no difficulty for the police or the Judicial officer to release the accused person on bail, in a Bailable offence. Of course, bail in a bailable offence, is a matter of Right. But in case of Non-bailable offence, the Judicial Officer have to  View the provisions of law and  have to use his discretionary power in granting or refusing bail to the accused person.

“Bailable Offence” means an offence which is shown as bailable in the first Schedule, or which is made bailable by any other law or for the time being in force and “Non – Bailable” offence means any other offence. The Supreme Court of India and almost all the High Courts have observed that “grant of bail is a rule and refusal to bail is an exception”. In the case of State of Rajsthan Vs Bal Chand,  AIR 1977 SC 2447, The Supreme Court of India has observed that the normal rule is bail not jail. The main purpose behind the grant of bail is that consequences of long detention of the pre-trail accused persons were very grave, who are presumed to be innocent as any other citizen until and unless convicted.

Any person who has the capacity, control and competence to produce the accused in case of non-production or to pay the amount of the surety, can be accepted by the court for the purpose. No specific provision is there to decide the exact amount of surety to be paid, if bail is granted to the accused person. The court are given discretion to fix a reasonable amount judicially.

Provisions of Bail and Bonds has been described under Sec. 436 to 450 of The Code of Criminal Procedure. Bail under Section 437 of The Code of Criminal Procedure is not the matter of Right.

Special Power of High Court or the court of Session as been defined under Section 439 of The Code Of Criminal Procedure, 1973.

Bail once granted can’t be reviewed, revised or set aside by the same court under any provision of this code. But the court has power to cancel the bail already granted to the accused of an offence under Indian Panel Code or any other provisions of Law. Magistrate who has granted the bail in non-bailable offence can pass an order of cancelation of bail, if necessary, but the magistrate is not competent to cancel the bail granted in bailable offence. There are certain circumstances which are to be kept in mind by the session Court or the High court when the bail already granted is to be cancelled. Rejection of Bail is certainly different from rejection of bail.

Whereas in case of misuse, the court will cancel the bond and the accused will have to go in jail custody.  The accused shall have right to pray for bail and he court may consider his application on his discretion.

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