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IrBM(Marriage amendment Bill For HMA and SMA) FACTS and SOLUTIONS

Hi, Guys it's very High Time to expect the worst from our Government in coming future to non other than We Men as the Marriage ammendment bill been passed in Rajya Sabha and Indian greedy wives are Just praying to Become this as an Act as soon as it can..

So,Far It's Yes or No situation Landing to our minds that what is IRBM, what will be it's consequences, What will be it's fate,What will be the remedies,What and What........?all the questions are now to be Research. So,Guys just hold the Hands and be The most Powerful Creature Of the Fallen society on The name sake of Vote Bank by our esteemed Ministers.

Here, my endeveour is to Put some efforts to know this enormous Life killer (IRBM) ammendment laws through research & Planning.

I hope, we the victim at this intensed moment would even get stronger and come out from this, if we know the entire IRBM and it's affects & effects.

So, A vast knowledge is must for all to overcome this hurdles.

Let's pray for shanti & Aman in our country from all the open Legal Beggars crawling for money in the name of Abla Naari .....Aameen!



A sufferer...




 36 Replies







By way of Marriage Laws (Amendment) Bill, 2010 the Govt. of India seeks to introduce a new ground for divorce.


This ground called as the “Irretrievable Breakdown of Marriage” shall provide for No-Fault divorce if a couple is separated for more than 3 years.


This bill was introduced after the Honorable Supreme Court of India recommended the above ground to make divorce easier in Neetu Kohli vs. Naveen Kohli.


After the bill was introduced and debated in the media, due to interference by women NGOs, clauses for grabbing property of husband were introduced.


These clauses made the bill extremely controversial which was met with severe criticism from men’s NGOs.


Salient Features:


The bill has provisions for wife to oppose the divorce on grounds of “Financial Hardship”, however, husband does not have the same right.


Under the guise of “Financial Hardship”, husband’s property will be given to wife.


However, wife’s property won’t be considered.


The bill is silent on child custody related matters.


The bill does not give any significance to various factors like duration of marriage, contribution of wife towards building the property while dividing it.


The bill does not respect pre-nuptials like western countries.


The bill also talks of diving ancestral, inherited and inheritable property of husband in which wife would have provided no contribution towards building it.


The bill is also silent on the status/stature of other matrimonial sections like 498A IPC, Domestic Violence Act, Section 125 CrPC, if already filed by the wife on the husband.


The bill does not guarantee either immunity or automatic closure of other litigations, as mentioned above, should divorce be granted under the new ground.


The bill does not contain any safeguards for husband from false cases but does guarantee that he will lose his hard-earned property.


The bill provides provision for quick divorce with wife getting a lot to gain by breaking the marriage.


Major Objections:


Husband does not have right to oppose divorce like a wife can.


Only husband’s property is being considered for division and that too not necessarily jointly acquired marital property.


Property owned by wife is not being considered for division.


Wife’s contribution to property is not being considered at all.


Judiciary has been vested with the power to divide properties despite the known fact that judiciary is anti-male making the bill extremely precarious for men.


Care hasn’t been taken to end long-dragged matrimonial litigation, only quick divorce is being mooted.


Bill is silent on safeguarding husbands from other laws like 498A, Domestic Violence Act, Section 125 etc. Such lacunae won’t necessarily reduce matrimonial litigation as claimed by the Govt. of India.


Marriage is a sacred union for the Indians and the foundation of the family. This great Indian family system has survived through the ages and is responsible for maintaining the order in our society, even when our nation was in chaos, as a result of foreign rule or foreign invasion. Destroying this stable Indian family system would not serve the purpose of anyone, except those who are hell bend to ruin India and her culture.

Divorce should only be a relief from bad marriage under exceptional circumstances. Having provision for 'Irrevocable Breakdown of Marriage' (IrBM) would make the process of divorce very easy and this would unnecessarily result in break up of a lot of families, which would lead to most suffering for the children who would loose access to one of the parents for no fault of their own.

Providing half of hard earned property of the husband, acquired before or after the marriage, as well as half of his inherited property, to the wife at the time of divorce would be a gross injustice to the husband. His right to retain his own property would be violated. Providing such unjustified incentives for divorce would lead to a big increase of divorce rate leading to break up of a lot of Indian families. Henceforth, there would be little effort to stay in marriage and all preparations for getting out of it. Converting the sacred institution of marriage into FINANCIAL TRANSACTION would have a devastating consequence on the society.

The proposed provision for transfer of property during the event of divorce is only from husband to the wife and not vice versa. Hence it is gender biased and absolutely unfair.

The proposed changes in marriage law does not take duration of the marriage, contribution and behaviour of each spouse during marriage into account. But it is meant to blindly take away 50% of the husbands property if he gets divorced.

Divorce needs to be discouraged and efforts should be made to keep the marital bonds intact. Creation of property rights for the event of divorce would not be a step in the right direction.

A man in Indian society is expected to support his wife, his children, his old parents and his unmarried sisters. So if the wife walks away with half of his property then the other people who are dependent on him would suffer as his ability to maintain them would be hampered.

Already the families of the husbands are suffering where the husbands are facing false cases of 498A, Domestic Violence and other maintenance cases. This proposed change in legislature would only increase their misery and suffering.

If these changes of laws are passed there would be a section of women who would marry a financially stable man without any intention for leading a family life. Then they would get divorced and walk out with half of her husband's hard earned property making mockery of the education, qualification, experience and effort that the husband had put in to acquire these properties. The law of the land should not allow such injustice to be carried out with the help of the legal system.

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A comparison of International Laws:


Recommendations Given By several NGO's & Men's Right Movement:


This bill must not be tabled in its current form in the parliament.


Either both the parties should have unobstructed right to oppose divorce or none should have.


Property division should not be a blanket clause, there can be provisions for it with enough safety riders built in.


The bill must not incentivize divorce and marriage breaking.


For the purpose of property division, only property acquired post marriage must be considered.


For calculating share, Govt. must come up with a formula for calculating contribution of each spouse taking into account, duration of marriage, number of children, financial status and earning potential of both husband and wife.


Govt. must rope in Law Commission and the men’s rights activists to derive this formula.


Custody of children and shared parenting must be given due significance and Father’s Rights groups must be consulted for the same.


Women must be first given property share in their father’s property as per Hindu Succession Act.


The bill must have safeguards against other matrimonial litigation like Section 498A, Domestic Violence Act, Section 125 CrPC which are liable to be filed against husband.


If property is being divided then no other mode of payment in the form of maintenance, alimony or one-time settlement should be allowed.


Earning/Educated women should be categorically denied any sort of financial assistance.


In case of housewife with long break in career, assistance can be provided to obtain livelihood but not lifetime alimony or blind property share.


It's Time to Understand The situation of Men and society after this IRBM via some slight and lite jokes By Mr. Phasgaya a memeber of 498A.org

Well done sir, what a hilarious but real jokes you have encountered on this IRBM:D:(:P

The After Math of IrBM

Scene 1...Casual chat after IrBM in a restaurant...

Lights!!! Camera!!! Action!!!...

Girl - Ramesh, You know my history that i have ditched all my husbands, Aren't you afraid of loosing your half property???

Boy - No parul, I'm not hindu and i don't have property too...


Scene 2...A joint marriage ceremony where twenty couples are ready for a new beginning...

Lights!!! Camera!!! Action!!!...

A Group of Twenty Girls - We all got converted to hindu's, But Where are all the Hindu Boys!

A Group of Twenty Boys - Government of India forced us to adopt Islam, We left hinduism to save our hard earned property!


Scene 3...A wild woman arguing with her husband in the presence of her MIL & FIL...

Lights!!! Camera!!! Action!!!...

Husband to Wife - Darling i have already ordered your favourate chinese dish from J.W. Marriot Hotel, then why you are yelling ?

Wife to Husband - Darling gayee bhaad mein, And remember if you mother or father comes in this house then you will loose half of your


Scene 4...Husbands conversation with his hard earned house just minutes before his marriage...

Lights!!! Camera!!! Action!!!...

Husband to his House - Dear home why are you feeling sick? Come on i'm just getting married...Now Cheer Up...

House to the Husband(Owner) - Arey You Idiot its me who will be divided in half and not you...jerk!!!


Scene 5...Husbands conversation with his hot headed wife...

Lights!!! Camera!!! Action!!!...

Husband - Darling why are you abusing my mother and father? Look they are so old and have no place to live...

Wife - I told you that not to bring you beggar mother and father to this house and now i am taking half of your property as well as half
of your underwear also...


Scene 6...Selection of husbands by wife at a matrimony office...

Lights!!! Camera!!! Action!!!...

Matrimony agent - Madam see all these men are suitable for you and they are also hard working and they will do whatever you want...

Divorcee Woman - But these men are just wearing their underwear only and also they look so shabby...

Matrimony agent - Madam actually they have already divided their propety atleast ten times hence they have their underwear only. But
if you want you can take half of that also as they are use to it...isn't it husbands?

Divorced husbands - (all together) YES!!!


Scene 7...A doctor husband while doing a precise heart transplant in his hospital...

Lights!!! Camera!!! Action!!!...

Nurse : Doctor it's your wife on the phone and she wants to talk to you immediately about today's shopping list...

Doctor : Hey nurse are you gone mad? can't you see i am doing a heart transplant? ask my wife to call back...

Nurse - But doctor she is threatening of divorce and then she says she will grab half of your property including you hospital...


Scene 8...A phone call answered by a cute little 5 year old child...

Lights!!! Camera!!! Action!!!...

Tring-Tring Tring-Tring Tring-Tring

5 Year old kid - Hello! Kaun bol raha hai? aap ko kisse baat karni hain?

Child's real father - (In tears) Beta mein tumhaara papa bol raha hoon

5 Year old kid - Kaunse papa ho aap? rustam papa, dinesh papa, patel papa ya phir singh papa?


Scene 9...A conversation in a party between two friends...

Lights!!! Camera!!! Action!!!...

Sonia - Hey i heard this bungalow you got from your third husband...is that true?

Sheela - No! Technically i got this by divorcing my second husband...


Scene 10...A conversation between two male friends...

Lights!!! Camera!!! Action!!!...

Nikhil - Yaar kal raat mere ghar chori ho gayee aur biwi ke saare gehne chori ho gaye...So please help me to lodge a police complaint...

Ramesh - Abey paagal chor toh sirf jewellry le gaya hain aur agar biwi ko jewellry kharid kar nahi diya toh woh tera aadha ghar khaa

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A Conversation between sushil kumar shinde's daughter and Earlier law minister ashwini kumar...

Courtesy : Lawyers Club Of India & 498a.org


S Shinde's daughter:- Hello Ashwani uncle , how are you !!

Ashwani Kumar:- I am fine dear , how is your papa doing ? The Ministry of Home Affairs is doing well, I say. They have put me the law ministry, what to do? No Deal No money.

S Shinde's daughter :- Papa is good last week only he did Rs 10,000 crore just last week see.

S Shinde's daughter:- What happened to the that quick divorce law Ashwani uncle. I am still waiting you see. Doctor said, I have like a few more years before I reach my designated time (menopause). Please do it fast Ashwani uncle. Please !!

Ashwani Kumar :- Don't worry beti, I have created the law, but you see in India there are sometimes we need to show the foolish public that we are working for them. LOL. Hence it has to go through a process, it is with the parliamentary committee now just for formality. This law is just tailored for you, I have studied your case and created the law just for you, so that only you in the country will get the divorce even if others do not get it. But don't You worry we will definitely bring this law by end of this year specially for you.

S Shinde's daughter :- Oh that's great Ashwani uncle, so by when do you think I can get my divorce.

Ashwani Kumar :- I will try my level best to ensure that you get divorce by end of December ‘2013. Because Jan is good lagna (marriage) for the stars and you can get married by January.

S Shinde's daughter:- But people might oppose to the law uncle .Then what will you do ? You might have to take their suggestions.

Ashwani Kumar :- When have I taken suggestions from the people ? I always give orders . I Give promise after promise. See finally I got Rs 5000 core allocated for the reforms. Now I can fin ally get some money for my retirement from here. Otherwise you see it is very difficult to make any money in the law ministry, I say based on feedback of my Family Law friends who say that the real money is in Corporate Law. Let the people say whatever thy want we will do what what we want to do. After all Government's is God, and has god ever listened to people. God does whatever he likes to do. People can pray, but it is up to god to listen. We are the GOI (God's of India. LOL...HA HA HA

S Shinde's daughter :- HA HA HA! Ok Ashwani uncle, I need to leave now. I need to shop for Saarees and Jewelry's for my next marriage.

Ashwani Kumar :- OK Beti , We will talk later, give my regards to daddy.

  This great task has been entrusted with a group of ministers regarding the Official
amendments to the Marriage Laws (Amendment) Bill, 2010. (Otherwise known as IrBM)

They are as follows:
  1. Shri A.K. Antony, Minister of Defence.
  2. Shri P. Chidambaram, Minister of Finance.
  3. Shri Ghulam Nabi Azad, Minister of Health and Family Welfare.
  4. Shri Sushilkumar Shinde, Minister of Home Affairs.
  5. Shri Kamal Nath, Minister of Urban Development, and Minister of Parliamentary Affairs.
  6. Shri Kapil Sibal, Minister of Communications and Information Technology, and Minister of Law and Justice.
  7. Kumari Selja, Minister of Social Justice and Empowerment.
  8. Shri V. Kishore Chandra Deo, Minister of Tribal Affairs, and Minister of Panchayati Raj.
  9. Shri Jairam Ramesh, Minister of Rural Development.
  10. Smt Krishna Tirath, Minister of State (Independent Charge) of the Ministry of Women and Child Development.
And to make it a 11 member team, they had invited:
Shri V. Narayanasamy, Minister of State in the Ministry of Personnel, Public Grievances and Pensions,  and Minister of State in the Prime Minister's Office.
I wonder which type of humans do they belong? I only pray that there are wise people in this group who will prevail and recommend rolling back this bill. This bill has dire consequences. There has been rampant misuse of laws like IPC 498a, PWDVA, Rape, SHWB. IrBM will also be misused as this is a biased bill.


Affects Presumed In India after IRBM


1. Tendency of men to escape from marriage and indulge into live-in-relationships, hence spoiling the family structure and cultural values of the country.

2. More crime by men out of frustration of losing their hard earn assets due to an unscrupulous wife.

3. Intolerance in women within the wedlock and merely tending them to extort property, leaving matrimonial obligations aside.

4. More difficulty for poor girls marrying a man as men will have a fear that the girl can take advantage of the law.

5. Loss of countries Economic progress as number of such cases will soar and people’s tendency (especially women) to earn will die, as they shall get easy divorce and huge amount of money without any hard work and conducting matrimonial obligations.

6.Whichever country has introduced property division clauses in their divorce laws have seen dramatic drop in marriage rates.


7.There also has been a serious and detrimental dip in demand for real estate in such countries as men have stopped investing in property considering it to be too risky.


Same thing will happen in India....

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We all think India is shining and very soon we will catch up with the western nations in terms of development. While the previous analysis on different factors concerning Human Development and Gender Equality shows that we have hardly looked into the real factors of development and hence we are comparable only to African nations in terms of development today.


The proposed legislation which is brought in the name of women empowerment says any duration of marriage can come under this purview if there is a separation of three years. Only the wife is given right to oppose to such a divorce under ‘grave financial danger’. The proposal is that the property acquired by only the husband during the course of marriage and all his inherited, inheritable and shared property comes for division. Property acquired by the wife or her ancestral property or any of her shared property is not taken into consideration for division.


The bias in terms of extortion of men is very clearly visible in these provisions.


Unlike the developed nations, in India we do not have any concept of pre-nuptial agreement or community property where both spouses contribute and hence on divorce they get equivalent share back from their contribution. Also as evident in different other countries legislation states that expensive gifts etc exchanged between the spouses are also returned on divorce. In India however there is no provision for that (so men will think many times before they buy that diamond necklace or flat for her). Moreover in all other countries gifts or any other property that is personal in nature remains with the owner, but we don’t have any provision like that here.


In absence of so many vital parameters like pre-nupital agreement, concept of community property etc and with overwhelming bias against any female contribution to a matrimonial union (this is considered as dowry and the husband and family is booked under different criminal provisions) makes our marriages completely with zero contribution from the wife. Even if the wife is working and earning money she is not entitled to pay anything to the family and if the husband asks for money from her that is considered as domestic violence and again becomes punishable offence. The provisions made in this legislation are completely biased and rather regressive in nature. This legislation will not only refrain men in the country from entering into matrimonial union but this will also stop them from investing in any property and it will become the responsibility of the woman to buy property instead. The women who can not afford to buy any property will not get married.


Also there is no provision to check if the wife has really taken care of the home or the husband was forced to keep domestic helps to help her. Under normal circumstances, all of us have some domestic duties to perform. If the wife cooks, or takes care of children at home, husband also has non-documented duties like bringing grocery, taking care of household maintenance, taking kids to school or may simply provide for wife’s jewelry and make-up. There are many husbands who help their wives in many other domestic duties as well including nurturing the baby but there is no provision to pay them for that.


A husband works in a very competitive environment, under pressure situations with constant fear of losing a job under changing market conditions. Whereas a wife who has no competition from anyone, she has no checks and balances to perform in her job and in Indian system she one can not be forced to do any domestic duty there is practically no equity that can be brought in.


Many developed countries in the west have concept of spousal duty in marriage which is absent in India. We consider marriage as holy bond and not a contract but in this holy bond we are making provisions of extortion for men and making it dirty in nature.


When China realized the danger of property division and one’s property going to the other spouse, and revoked the property division clause recently,sadly enough in India we are trying to implement this in our country. If this legislation is brought in, in present form and not overhauled completely to make it gender neutral, take away any incentive for divorce and also make pre-nupital agreement and a contribution (financially as well as duty wise) must from the wife in any marriage, we will very soon see a situation of disturbance in India, as illustrated in this article –




Following are the few ways to safeguard yourself from the Open Legal Beggars:

1. In any ancestral property only the father and his son and daughters have share on it and the son's son (son side grandson and grand daughters) has a share (that too only on the son's share).


2. Mother (Wife of your father) has no share on the property.


3. Daughter's son and daughter (Daughter side grandson and grand daughters) have no share on that property. The daughters (Your sister) share in that property is her sole property and it is not considered as ancestral property and she had sole right to sell or gift to any one. Daughter's son and daughter will get a share only after your sisters death (that too without any will).


4. Same way any property of your mother even if she has got from her father or mother will not be considered as ancestral property and you and your sisters don’t have a share on it. You along with your sister and father will get an equal share on your mother’s property only if she dies without a will.


Considering on the above legal points

If you have an undivided ancestral property and if you have sister or brother and if you are facing bad divorce (IRBM), and if you plan to save your share of your ancestral property the you can do the following.

1. You and your brother, sister and father can divide the property and you can either gift your share of the property to your father or your mother and that becomes your fathers/ mothers self-earned property.

2. You and your brother, sister and father can divide the property and you can relinquish your share to your father by getting a nominal amount (Just for documentation sake).

3. You and your brother, sister and father can divide the property and all of you can relinquish your share to you father after getting a nominal amount (Just for documentation sake).

4. In all the above case your share of the ancestral property will go to safe hands of your father. And your father can write a will to transfer the said property to your mother in case of early death (Just to be extra safe). Once the Divorce is over (IRBM) then the will can be changed in a way that you will get your share back to you after your father's or mother's death.

5. As long as you don't have any property left undivided or remains in your name then your beloved 498a lady can claim a share on that. So if you are legally not without any property (inheritable or owned) then not even God can force you to part any property to the b*tch.

6. If you can not trust your own father or your mother then not even God can save your property from these b*tches.

7. If you have good faith with your brother or sister then you can let them have the property and gift it back to you once you are out of mess. The maximum cost for gifting property is 10k + 2.5k fees. And further any property that you got as gift form blood relation won’t be taken in account for income tax (Provided you don’t sell that property – if you sell that property then you have to show it as capital income)

8. I guess those who are abroad (NRIs) can give power of attorney to your father to do any of the above.



How to gift an immovable property


The owner of an immovable property can gift it to a relative or a third person. The person giving the gift is called the donor and the person to whom it is being gifted is called the donee. A gift is considered valid if it is made voluntarily and without consideration. It is also essential for it to be accepted by the donee.


The gift must be made and accepted in the lifetime of both the donor and donee. The acceptance is shown through a gift deed, which is an agreement spelling out that the donor wants to gift the property listed in the deed to the donee, and that the donee accepts it. The signatures of both the parties are affixed in the presence of at least two witnesses.



A gift of immovable property amounts to its transfer under the Transfer of Property Act. Hence, the gift deed needs to be compulsorily registered with the sub-registrar in the area where the property is situated.



A copy of the gift deed, title deeds of the property, encumbrance certificate, statement of particulars of the property, its market value and the extract of assessment register of the property must be submitted at the time of registration.


Stamp duty

The stamp duty is calculated as a percentage of the market value of the gifted property and differs from state to state. Such a gift to relatives attracts stamp duty at a lower rate.


Points to note


If the gift is made to specified relatives, including spouse, parents and siblings, it is not taxed under the Income Tax Act.


The gift must comprise the existing property, not any future property.


A minor cannot give a gift since he is incompetent to enter into a contract. The guardian can accept a gift on behalf of a minor.





Do you own any immovable property in India?  Do you anticipate your parents giving you an immovable property under a Will?

There has been multi fold appreciation in the real property (“property”) prices throughout India. Due to appealing exchange rates of the U.S. Dollar to the Indian Rupee, purchase of property by Non Resident Indians (NRIs) has grown multi-fold in the recent months.

So what happens when you sell such property? For the sake of simplicity we have assumed that all properties sold were second homes; they were not used for business and were not let out for rental purposes.
From India Income Tax point of view:

1. If the property is held for more than three years, you get indexation benefit on the cost (basis) that you have purchased. Indexation is a technique to adjust income payments to maintain purchase power after inflation.

2. If the property is acquired prior to 1st April 1981, you are entitled to substitute the market value of property as on 1st April 1981 as your cost of acquisition and thereafter you can avail of indexation benefits.

3. The capital gains on sale of property is computed as under:

4. If the Sale price of the property is less then the Stamp Duty value (as determined by the Stamp Duty Authority in India), then the difference in the price may amount to capital gains in India.

5. You can avail of “roll over benefit” under Section 54 of the Indian Income Tax Act by purchasing another residential house either one year before or within two years after the date of sale or construct a residential house within a period of three years from the date of sale. The cost of acquisition/construction of new residential house should be more than capital gains. If you invest less, shortfall will be taxed as capital gain.

6. You can also take benefit of reinvestment in certain notified bonds.  However, you can invest only up to Rs. 50 lakh in a financial year (which is April to March).

7. If you are not able to make the required investment to avail of the exemption on capital gains before the due date for filing your tax return, the amount of capital gain has to be deposited in a separate account in a nationalized bank under the Capital Gains Account Scheme (CGAS) before the Due Date of filing your return for the relevant year.

8. The Purchaser would be required to deduct tax at source at the rate of 20%, if property is held by you for a period of three years or more. At the rate of 30% if the property is held for a period of less than three years.

From U.S. Income Tax point of view:

The sale of property in India is taxable in the United States if you are a U.S. Resident for U.S. Income Tax purposes.

1. The capital gain is calculated by deducting cost of acquisition from the sale price.

2. You do not get any indexation benefits in the United States.

3. If the property was your main home for at least 2 years during the 5-year period ending on the date of sale, you can exclude up to $250,000 of the gain. If married, filing jointly, you can exclude up to $500,000 if you both used the home as your main home for the required period. You can’t claim the exclusion if you sold another home within the 2-year period ending on the date of sale and claimed the exclusion for that sale.

4. If the property does not meet the above conditions, the property would be regarded as a second home (i.e. property which was not used primarily for your residential purposes).
5. If the property (second home) is held for more than one year and is sold at a gain, such gain will be taxed as long-term capital gain subject to a maximum federal tax rate of 15%. For property held for less than one year, normal rate of tax applies.


A U.S. Person selling property in India can avoid paying of tax on the gain arising on the sale of property in India by using various tax exemption provisions stated above under the Indian Income tax act. However, he may still be liable to pay the tax in the United States.

Further, it is very important to determine what would be the cost (basis) of property sold (e.g. inherited property, property received as gift, etc.). U.S. Income Tax rules in comparison to the Indian Income Tax rules are quite complex and different in such matters.  You also need to look into what disclosures would be required in India and in the United States and how you would remit your funds back to the United States.

Sanket Shah is the Co-Founder and Managing Director of NS Global—an advisory firm founded by certified professionals from the U.S. and India to provide multi jurisdictional tax solutions to individuals having assets and/or an income base in India and the United States. www.nsglobal.com.

Categories   Features  / Tax Talk
This article is part of the tag: Taxation





The term property in common parlance indicates the economic status of a person. Any property is held by an individual to draw out benefit from it. Transfers are made by owners themselves, ostensible owners and the co-owners or we can say joint owners. When two or more persons enjoy common ownership of a property, for example say in a coparcenary, the male members and now even daughters have a common and an equal interest in the ancestral property, any co-owner can transfer his own share in the property to a stranger or another co-owner. And that transferee steps in the shoes of the co-owner (transferor) and gets clothed with all his assets and liabilities. We can say that the transferee becomes the co-owner.

Section 44 of the Transfer of Property Act, 1882, deals with transfers by one co-owner. It also deals with the rights of a transferee in this type of a transaction.


In my project I have dealt with the following topics-
# Who is a co-owner
# What are the rights and liabilities of a transferee under this section
# Can a co-owner make a transfer without the consent of other co-owners
# What is a dwelling house and undivided family for the purpose of this section.


I have also dealt with various case laws. For the purpose of better understanding I have divided the project in parts.
EXPLANATION OF SECTION 44 TPA, 1882 ( With reference to Section 4 of the Partition Act, 1893)
Section 44 says -


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, as to such share or interest, so far as is necessary to give effect to the transfer, the transferors 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.


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.


This section of Transfer of Property Act deals with rights and liabilities of a transferee from a co-owner, as to the enjoyment of the property transferred ( should be immovable for this section). The first part of the section merely incorporates the principle that a person who takes transfer from another, steps into the shoes of his transferor, and is clothed with all the rights and becomes subject to all the liabilities of his transferor. In short, we can say that he becomes as much a co-owner as his transferor was before the transfer. The second part of the provision provides an exception to the general rule stated in the first part and is based on convenience. It is designed to prevent an outsider from forcing his way into a dwelling house in which other members of the transferors family have a right to live. But the remedy is to claim partition. When we read the section there are some terms which we need to understand like-

Who is a co-owner ?
Legal Competency of a Co-owner to Transfer ?
Rights and liabilities of a transferee from a Co-owner ?
What is a dwelling house and Undivided family ?


Who Is A Co-Owner ?

Ownership consists of innumerable number of claims, liberties, powers with regard to the thing owned. Ownership is of different kinds. There are absolute and limited, sole ownership, co-ownership, vested ownership, contingent ownership, corporeal, incorporeal. When a person owns a property in one time it is called sole ownership, but if the property is owned by more than one person then it is called joint ownership. By means of partition one can have co-ownership changed into sole ownership.


The expression co-owner is wide enough to include all kinds of ownership such as joint tenancy, Tenancy in common, Coparcenary, membership of undivided Hindu family, etc. The very fact of the reference to the property that the parties have certain shares, indicates that they are co-owners.
In Indian Law a co-owner is entitled to three essentials of ownership-

# Right to possession
# Right to enjoy
# Right to dispose


Therefore, if a co-owner is deprived of his property, he has a right to be put back in possession. Such a co-owner has an interest in every portion of the property and has a right irrespective of his quantity of share, to be in possession jointly with others. This is also called joint-ownership.


The following are the types of co-ownerships:

Tenants in Common

When the type of co-ownership is not specifically stated, by default a tenancy in common is likely to exist. Each tenant in common has a separate fractional interest in the entire property. Although each tenant in common has a separate interest in the property, each may possess and use the whole property. Tenants in common may hold unequal interest in the property but the interests held by each tenant in common is a fractional interest in the entire property For e.g. B owns a 25% interest in the property and A owns a 75% interest. Each tenant in common may freely transfer his/her interest in the property.


Tenants in common do not have the right of survivorship. Therefore, upon the death of one tenant in common, his/her interest passes via will or through the laws of intestacy to another persons who will then become a tenant in common with the surviving co-owners.


Joint Tenancy

The most attractive feature of joint tenancy is the right of survivorship. Upon the death of one joint tenant, his/her interest
immediately passes to the surviving joint tenants and not to the decedents estate. Joint tenants hold a single unified interest in the entire property. Each joint tenant must have equal shares in the property For e.g. B and A each hold a 50% interest. Each joint tenant may occupy the entire property subject only to the rights of the other joint tenants.

Unlike tenants in common, joint tenancy has several requirements that must be met in order to be properly created. Massachusetts law requires that in order for a joint tenancy to be created specific language must be included in the conveyance or devise. Such language includes that the grantees take the land: "
jointly"; "as joint tenants"; "in joint
"; "to them and the survivor of them"; or using other language in the instrument that it was clearly intended to create an estate in joint tenancy. However, even if such language is contained in the conveying instrument, a joint tenancy may not exist. There are four additional common law requirements necessary in order to create a joint tenancy.


The four unities are

(1) Unity of time. The interests of the joint tenants must vest at the same time
(2) Unity of possession. The joint tenants must have undivided interests in the whole property, not divided interests in separate parts
(3) Unity of title. The Joint tenants must derive their interest by the same instrument (e.g. a deed or will)
(4) Unity of interest. Each joint tenant must have estates of the same type and same duration. All four unities must exist. If one unity is missing at any time during the joint tenancy, the type of co-ownership automatically changes to a tenancy in common. A joint tenancy may be created by a will or deed but may never be created by intestacy because there has to be an instrument expressing joint tenancy. A joint tenancy is freely transferable.


Tenancy by the Entirety

This type of co-ownership is exclusively for husband and wife. Similar to joint tenancy, tenancy by the entirety provides the right of survivorship. To exist, tenancy by the entirety requires that the four unities of joint tenancy exist plus a fifth unity of marriage between the two co-owners. However, even if all five unities exists, the type of co-ownership may still be joint tenancy if the conveying instrument indicates such. Unlike joint tenancy, tenancy by the entirety does not allow one spouse to convey his interest to a third party. However, one spouse may convey his/her interest to the other spouse. A tenancy by the
entirety may only be terminated by divorce, death, or mutual agreement by both spouses. A terminated tenancy by the entirety becomes a tenancy in common.

In Konchunju Nair v. Koshy Alexander it was held that if a co-owner wants to erect a dwelling house on the land he is free to do so. If division of co-ownership of property takes place, the co-owner can claim, that, the said property be allotted to his share. The Court would ordinarily grant such an equitable right.


When Is A Co-Owner Legally Competent To Make A Transfer ?

Section 7 of the Transfer of Property Act, 1882 provides that every person competent to contract i.e. a major and of sound mind or is not disqualified by law for contracting. Therefore even the interest of a co-owner or co-sharer can be sold, mortgaged, leased to another co-sharer or to a stranger. The fact that the partition has not taken place by metes and bounds , does not stand in the way of the interest of a co-owner.


According to the law prevailing in some areas, a coparcener of a Hindu Joint Family can alienate his share in the Joint Family Property for consideration. Such a coparcener is a legally competent person. But in some cases of Mitakshara coparcenary, the consent of other coparceners is required before any such transfer.


Also, where one co-owner is in exclusive possession of a plot of a joint land and lets it out to a tenant without the consent of other co-sharer landlords, such a tenancy will not bind the latter. The lease in such a case will only be confined to the interest and share of the lessor. In Baldev Singh v. Darshani Devi it was held by the Court that a co-owner who is not in actual physical possession over a parcel of land cannot transfer a valid title of that portion of the property. The remedy available to the transferee would be to get a share out from the property allotted after the partition or to get a decree for joint possession or can claim compensation from the co-owner. In Rukmini and others v. H.N T. Chettiar it was held by the High Court of Madras that a co-sharer cannot be allowed to cause prejudice to the other co-sharers by putting up a substantial construction during the pendency of a suit for partition filed by the other co-sharers. The High Court of Punjab and Haryana in a case of Hazara Singh v. Faqiria where a co-owner contended that he had, by adverse possession, a peaceful undisturbed possession by the other co-owners had become the sole owner of a land, held that the possession of a co-owner is possession of all the co-owners. It cannot be adverse to them unless there is a denial of their right to knowledge by the person in possession. If a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse he possesses the property on behalf of all others.


What Are The Rights Of A Transferee In Such A Transaction

Basically this section deals with the rights of a transferee and also safeguards their rights. The transferee steps into the shoes of his transferor ie the co-owner, and is clothed with all the rights and becomes subject to all the liabilities of his transferor. In short, we can say that he becomes as much a co-owner as his transferor was before the transfer. Following are his rights after the transfer-


Right to joint possession

Every joint owner or co-owner of property has a proprietary right in the whole estate. After the transfer, the transferee becomes the co-owner and gets all his rights. He also has the right to joint possession in property except a dwelling house. If a co-owner or his transferee is ousted from joint possession, he is entitled to joint possession by a suit, and is not necessary forced to sue for partition. A co-sharer can sue for possession either for the benefit of the entire body of co-sharers or for the partition and possession of the plaintiffs share.


Right to peaceful possession

If instead of remaining in exclusive possession of his separate plot, the co-owner transfers it, his transferee cannot be disturbed by the other co-owners until and unless a final partition takes place. It was also held that where a tenant of a land who derives his title from all co-owners cannot be disturbed by one co-owner without the consent of all. But where the co-owners are enjoying the common property in separate plots for the sake of convenience, the court will not decree to one co-owner joint possession of the portion in the actual cultivation of the other.


Right to make improvements

If a co-owner can make out a case that he is entitled to make construction on any part of the joint land, he should be allowed to do so. But he is not entitled to make construction on any other portion of the joint holding or to the detriment of the other co-owners.


Right to enforce partition

In all cases of joint partnership, each party has a right to demand and enforce a partition; in other words a right to be placed in a position to enjoy his own right separately without interruption and interference by others. Under this section, not only a transferee of a share in the property but a transferee of any interest can sue for partition. A lessee, a mortgagee and even a life tenant is entitled to seek partition so far it is necessary to give effect to the transfer.


A claim of partition will only be refused on the ground of inconvenience. Partition does not depend on the duration of right. In a
celebrated case a monthly tenant was also entitled to partition just to protect the rights of the plaintiffs. But a partition effected at the instance of a person having a temporary interest, lasts only till the expiry of that interest.

The transferee also gets the liabilities with all the benefits. The rights of the transferee are subject to the conditions and
liabilities that attach at the date of the transfer to the share or interest so transferred.


Lalitha James and others v. Ajit Kumar and others AIR 1991 MP 15


P.S. Chouhan held vast properties. He died unmarried and issueless and he decided to give away the said properties to his 2 sisters (Mrs. Dayabai and Gracebai) and executed a gift deed in 1935. There had been no partition between them. Mrs. Dayabai was survived by appellants 2,3and 4. Gracebai is survived by appellant 1, Mrs Lalita Jaems and respondent no. 3. Mrs. Park. The 5.74 acres of land was divided between the survivors of Gracebai. Respondent no. 3 sold her share to Respondent no. 2 for Rs. 14,000/-.After the purchase, the transferee started digging on the land to raise a structure, it was objected by appellant no.1. A suit was filed by the Respondent 2.


At the Trial Court the suit was dismissed as the vendor was not in possession and the sale did not confer any right or title on them and they can get their money refunded


In the First Appeal Court it was held that the respondent no 3 was in exclusive possession of the land and rightfully sold it to the
respondent no 2.

Final Judgement :

The Madhya Pradesh High Court emphasized that it is the strength of the plaintiffs title and not the absence of title of the defendant that matters. A purchaser from a co-owner of a portion of undivided property is not entitled to possession of any particular part of the joint property. His right would be for joint ownership and not for exclusive ownership of any particular part of the joint property. A transferee is not in a better position than the co-owner himself. Section 44 gives sanction to this principle.


The Respondents will be only entitled to enforce partition of the joint estate. The sale of the exclusive property cannot be accepted. Therefore, the appeal was allowed.


Second part of the Section 44

This is an exception to the rule provided in the first part. Where a share in a dwelling house belonging to an undivided family is transferred to a stranger; the transferee cannot claim joint possession or any common part or enjoyment of the house. He can enforce his right over the property by a suit for partition. The principle underlying the provision is that it is inequitable to permit a stranger to intrude himself upon the privacy of an undivided family residence. Restriction contained in this part is applicable even if there is only one male member of family in occupation of family dwelling house.


In Balaji Anant v. Ganesh Janarthan Westropp C.J, observed as follows:

We deem it a far safer practice to leave a purchaser to a suit for partition than to place him by force in joint possession in the Hindu Family, which may be not only of a different caste from his own, but also different in race and religion.


In order to grant relief under section 44 there should be two things satisfied-
1) the property transferred should be a dwelling house
2) the transferee should not be a member of the family.

In other words he should be a stranger. The right of a stranger transferee to have the house partitioned is, subject to Section 4 of the Partition Act, 1893. Under this section, a stranger claiming partition by metes and bounds may be compelled, at the
option of the other members of the family to forego his legal right to partition and accept pecuniary compensation.


Explanation of Dwelling House

In the case of Durga v. Debidas , the members of the family were separated in mess and were residing in different places. They stayed in the house in the village for attending kali pooja. The house was otherwise used for collection of paddy. The court said that the stray use of the propert for a short residence for a specific purpose will not turn it into a dwelling house. There must be ancestral dwelling in existence on the suit land. The members of the family must not have abandoned the property.


Aahim Ranjan Das v. Smt. Bimla Ghosh AIR 1992 Cal 44


The disputed property belonged to 4 brothers A, B, C, D. A purchased 1/5th share of D by a deed in 1969. A died in 1975 leaving behind him the plaintiffs as his legal heirs. B died leaving four sons and daughters. C is alive and the property is an undivided family dwelling house of the plaintiffs and co-sharers. C and B transferred their interest to the defendants. A monthly tenancy was created in favour of the lessee-defendant and he was also delivered the possession of the same.


The Plaintiffs filed a suit under Section 44 to restrain the lessee from interfering with their possession.The Judgment of the court was that the plaintiffs can very well ask for a protection. There is no controversy that the defendant is a stranger to the family. The co-sharer is entitled to protection under section 44.There was enough evidence to show that the house was a dwelling house and that the family was undivided and event the defendant was a stranger. The court relied on various judgments where it was held that upon a transfer of an undivided share of a dwelling house by a co-sharer, the other co-sharer may maintain a suit for injunction to restrain the transferee from getting into possession. Moreover it was said that a stranger purchaser is reduced to a trespasser. Section 4 of the Partition Act spells out the right to partition of such a stranger. Thus the appeal was dismissed.


In the case of Ramdayal v. Mannaklal where the defendant had purchased a house from the plaintiffs father and was put in possession thereof. The Plaintiff filed a suit challenging the validity of the sale for the absence of a legal necessity. The court was of the opinion that if the purchaser files a suit for partition in a certain period then he can be in possession till the pendency of the suit. He can be legally handed over that property if it is not in excess of the share of the coparcener. But if the coparcener transfers more than his share then in such a situation the purchaser can acquire what belongs to the co-owner
i.e only his share. On looking at the material in records it was found that the property purchased was less than the share of the vendor. So the defendant was given possession.


In the case of Gautam Paul v. Debi Rani Paul the facts were-
There were three sons A, B, C. they received the property via gift deed. D, Son of C, purchased the share of A. The share of B also came to soc of C by partition. The appellants who were the heirs of A still occupied a room in the suit property and also purchased certain share from the heirs of D. The other heirs filed a suit for partition and also challenged the sale.


The Court opined that undoubtedly it is the undivided family of D who holds the dwelling. The appellant cannot be said to be the member of the joint family of D. Merely because he is related by blood to D will not make him a member of the family.

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