Buying a Co-Owner's Share in a Bengaluru House: Joint Rights, Partition and the Family Home Rule

A brother living abroad offers to sell his one-third share in the family's Jayanagar house. The price is attractive, the sale deed can be registered, and the share is legally his to sell. But what exactly does the buyer get: a room, a floor, or a right to go to court? Section 44 of the Transfer of Property Act, 1882 answers that, and its second paragraph carries a warning that every Bengaluru buyer of a fractional share should read twice.

This guide explains what a buyer of a co-owner's share acquires, the special rule for a family dwelling house, and how Section 45 splits ownership when several people buy together. The scenario above is an illustration, and this is not advice on any specific property.

The short answer. Under Section 44, a buyer of one co-owner's share steps into that co-owner's shoes: the right to joint possession or common enjoyment, and the right to enforce a partition, subject to the conditions and liabilities attached to the share on the date of transfer. But where the share is in a dwelling house belonging to an undivided family and the buyer is not a family member, Section 44 does not entitle the buyer to joint possession or common enjoyment of the house. Under Section 45, people who buy together hold shares in line with their contributions unless they agree otherwise. The trade-off: a share can cost less than a whole property, but you may be buying a lawsuit for partition rather than a home you can move into.

What do you get when you buy one co-owner's share?

The seller's position, not a defined part of the property. Section 44 says that where one of two or more co-owners "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."

Two points follow. First, you get rights that are joint or common with the other co-owners, not exclusive possession of any particular room or portion, unless and until there is a partition. Second, the transfer is "subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred." If the seller's share was already burdened, for example by a mortgage, a lease or an agreement, you take it with that burden.

The phrase "legally competent in that behalf" matters too. The seller must have a share they are entitled to transfer. Confirm how the co-ownership arose, whether by purchase, inheritance or a family arrangement, and what share the seller actually holds.

Why is a family dwelling house treated differently?

To keep outsiders from moving into a family home. The second paragraph of Section 44 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."

For a buyer, this is the key risk. If the property is a dwelling house belonging to an undivided family, and you are not a family member, buying a share does not, under Section 44, give you a right to live in the house or share its use with the family. The route open to you under the first paragraph is to enforce a partition of the share you bought, which can mean going to court if the co-owners do not agree.

Whether a house is a "dwelling-house belonging to an undivided family" depends on facts: how it is held, whether the family is undivided, and how it is used. That is a question for a lawyer reading the title documents, not for a broker's brochure.

How are shares decided when you buy jointly?

By contribution, unless you agree otherwise. Section 45 says that where property is transferred for consideration to two or more persons and the price "is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund."

Where the price "is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced." For a couple or siblings buying a Bengaluru flat together, the simplest protection is to state the shares in the sale deed so that the default rule does not have to be reconstructed from bank statements years later.

Section 45 has a fallback too. Where there is no evidence of the buyers' interests in the fund, or of the shares each advanced, "such persons shall be presumed to be equally interested in the property." On the selling side, Section 46 says that where several people with distinct interests sell together, they share the price equally if their interests were of equal value, and proportionately if not, unless they agree otherwise. Where the sellers' shares are stated in the sale deed, pay as the deed records.

Can you insist on a partition after buying a share?

Section 44 gives the buyer the transferor's right "to enforce a partition" of the property, so far as necessary to give effect to the transfer. In practice, that means the buyer can seek to have their share separated out, by agreement with the other co-owners or through the courts if they do not agree. Partition proceedings bring their own costs and timelines, and the other co-owners may contest the share claimed.

Our report on purchasers who bought during a partition suit shows how a pending case can affect a buyer, and our coverage of a dispute over a daughter's share in ancestral land shows how other heirs' claims can surface after a sale.

What should you check before buying a share in a Bengaluru property?

Who owns what, on what terms, and how you will ever use it. Work through these checks with your lawyer:

1. Trace how the co-ownership arose and confirm the exact share the seller holds and can transfer.
2. Identify every other co-owner and ask whether they will join the sale or sign a written consent.
3. Check whether the property is a dwelling house belonging to an undivided family, and whether you would be treated as an outsider.
4. Search for any mortgage, lease, agreement or litigation affecting the seller's share, since you take it subject to them.
5. Ask whether a registered partition, or a sale of the whole property by all co-owners, is possible instead.
6. If buying jointly with others, record each buyer's share in the sale deed to avoid relying on Section 45 defaults.
7. Budget time and money for a partition claim if the other co-owners do not cooperate.

Is buying the whole property from all co-owners safer?

Usually it is simpler. When all co-owners join one sale deed and convey the whole property, the buyer receives the entire interest rather than a fractional share with joint rights. Section 44 is about the transfer of a share by one of several co-owners; it is the fractional nature of that transfer that brings the limits described above.

A co-owner may still have reasons to sell only their share, and a buyer may still accept that risk at the right price. The point is to know, before paying, that the default legal position is joint rights and a possible partition claim, and that a family dwelling house carries a further limit for outsiders.

Frequently asked questions

What does a buyer get when one co-owner sells a share?

Under Section 44 of the Transfer of Property Act, the buyer acquires the selling co-owner's right to joint possession or other common or part enjoyment of the property and the right to enforce a partition, subject to the conditions and liabilities affecting the share on the date of transfer.

Can an outsider who buys a share live in a family dwelling house?

Section 44 says that where the buyer of a share of a dwelling house belonging to an undivided family is not a family member, nothing in the section entitles the buyer to joint possession or other common or part enjoyment of the house. The buyer's route is usually a partition claim.

How are shares split when two people buy a flat together?

Under Section 45, absent a contract to the contrary, joint buyers paying from a common fund hold interests matching their interests in the fund, and buyers paying from separate funds hold interests in proportion to their contributions. Stating shares in the sale deed avoids relying on these defaults.

Does a mortgage on the seller's share pass to the buyer?

Section 44 says the transferee takes the share subject to the conditions and liabilities affecting it at the date of transfer. A mortgage, lease or other burden on the seller's share can therefore affect the buyer, so search for encumbrances before paying.

This article explains provisions of the Transfer of Property Act, 1882 for information only and is not legal advice. Co-ownership questions depend on facts and should be reviewed by a lawyer.

Last updated 2026-11-10. PropNewz Team.