However, these rights are accompanied by restrictions to protect the interests of all co-owners. Judicial precedents have consistently upheld these principles, ensuring that no co-sharer can act to the detriment of others without due legal process.
Rights of Co-sharers in Joint Property:
1. Possession and Use
Each co sharer is considered an owner of every part of the joint property, irrespective of the size of their share. This principle implies that the possession of one co-sharer benefits all, and any co-sharer can use the property without hindering the rights of others.
2. Alienation of Share
A co-sharer has the right to transfer or sell their undivided share in the property. However, such a transfer does not grant the transferee exclusive possession of any specific portion without a formal partition. The transferee steps into the shoes of the original co-sharer, acquiring the same rights and obligations.
3. Right of Partition in Joint Property:
Any co-sharer can demand the partition of the joint property to obtain their specific share. There is no limitation period for filing a partition suit, and it can be initiated at any time during the joint ownership.
Restrictions on Co-Sharers:
1. Changing the Nature of Suit Property
A co-sharer cannot unilaterally alter the character or use of the joint property in a way that affects the rights of other co-sharers. For instance, constructing a building or changing agricultural land to commercial use without consent is prohibited. The Peshawar High Court emphasized that a co-sharer in possession cannot change the nature of the property unless a partition has occurred by metes and bounds.
2. Exclusive Possession and Dispossession
No co-sharer has the right to exclude others from the joint property. If a co-sharer is dispossessed, they can seek legal remedies, including filing a suit for partition or possession. The Lahore High Court has ruled that a co-sharer cannot file a suit for declaration and possession against another co-sharer but must seek partition of the joint property.
3. Transfer of Entire Property:
A co-sharer cannot transfer or lease the entire joint property without the consent of all co-sharers. Any such transfer is only valid concerning the transferring co-sharer’s share and does not affect the rights of others. The Supreme Court of Pakistan has held that a co-sharer cannot bind other co-sharers in a property transaction without their consent.
Judicial Precedents Regarding Co-Sharers:
Ali Gohar Khan v. Sher Ayaz and Others: The Supreme Court held that in joint immovable property, each co-sharer is interested in every inch of the property. A co-sharer cannot change the nature of the property in their possession without partition by metes and bounds.
Ashiq Hussain v. Prof. Muhammad Aslam and Others: The Lahore High Court ruled that a suit for permanent injunction against other co-sharers is not maintainable without seeking partition of the joint property.
Mst. Sanobar Sultan and Others v. Obaidullah Khan and Others: The Supreme Court determined that a purchaser of a share in joint property becomes a co-owner, and their possession is that of a co-owner, not a tenant.
