Legal Necessity as A Ground for Alienation of Joint Family Property

A rough research proposal submitted in partial fulfilment of the course Family Law II,
Semester – IV during the Academic Year 2017 – 18.

Submitted by

Sonu Shubham, 1651

BBA.LLB

Submitted to

Pooja Srivastava

April 2018

Chanakya National Law University

Nyaya Nagar, Mithapur

800001, Patna
 ACKNOWLEDGEMENT
I am feeling highly elated to work on under the guidance of my Family Law faculty. I
am very grateful to him for the exemplary guidance. His assignment of such a relevant
topic made me work towards knowing the subject with a great interest and enthusiasm.
I would like to enlighten my readers through this topic and I hope I have tried my best
to bring more luminosity to this topic. I am overwhelmed in all humbleness and
gratefulness to acknowledge from the bottom of my heart to all those who have helped
me to put these ideas, well above the level of simplicity and into something concrete
effectively and moreover on time.
I also want to thank all my friends, without whose cooperation this project was not
possible. Apart from all these, I want to give special thanks to the librarian of my
university who made every relevant material regarding to my topic available to me at
the time of my busy research work and gave me assistance.
I owe the present accomplishment of my project to my friends, who helped me
immensely with sources of research materials throughout the project and without
whom I couldn’t have completed it in the present way. I would also like to thank the
library staff for working long hours to facilitate us with required materials going a
long way in quenching our thirst for education. I would also like to extend my
gratitude to my parents and all those unseen hands who helped me out at every stage
of my project.

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 TABLE OF CONTENTS
ACKNOWLEDGEMENT ..................................................................................................................... 2

INTRODUCTION: ................................................................................................................................ 4

Objective of the Study: .................................................................................................................... 5

Hypothesis:........................................................................................................................................ 5

Research Methodology: ................................................................................................................... 5

Sources of Data: ............................................................................................................................ 5

Scope of the Study: ........................................................................................................................... 5

POWER OF ALIENATION .................................................................................................................. 6

Sole Surviving Coparcener’s Power of Alienation ........................................................................ 8

LEGAL NECESSITY ............................................................................................................................ 9

PARTIAL NECESSITY ................................................................................................................ 11

ALIENATION WITHOUT NECESSITY VOID OR VOIDABLE .................................................... 12

LEGAL RECOURSE IN CASE OF INVALID ALIENATION ................................................ 13

BURDEN OF PROOF ................................................................................................................... 14

CONCLUSION .................................................................................................................................... 15

BIBLIOGRAPHY ................................................................................................................................ 16

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 INTRODUCTION:

The study of the Indian family system deserves special attention, not only because we are born in
Indian families but also for here the family system differs in material respects from the western
family system. The family in India does not consist only of husband, wife and their children but also
of uncles, aunts and cousins and grandsons. the study of the Indian family system deserves special
attention, not only because they are born in Indian families but also for here the family system differs
in material respects from the western family system. In a joint family, the ownership, production and
consumption of wealth takes place on a joint basis. It is a cooperative institution, like a joint stock
company, in which there is joint property. The head of the family is like a trustee who manages the
property of the family for the material and spiritual welfare of the family members. The total
earnings of all the family members are pooled together. In the following project the researcher will
be mainly dealing with features of joint family property and conditions of alienation, particularly by
the Karta when any legal necessity arises.

Alienation means transfer of property, such as gifts, sales and mortgages. Alienations have an added
importance in Hindu Law, as, ordinarily, neither the Karta nor any other coparceners singly,
possesses full power of alienation over the joint family property or over his interest in the joint
family property, though under the Dayabhaga School a coparcener has the right of alienation over his
interest in the joint family property. Alienation of separate property by a Hindu, whether governed
by the Mitakshara School or any of its sub-schools or the Dayabhaga School, has full and absolute
powers over it. The Transfer of Property Act governs such alienations.

Alienation can be defined as “it includes as any disposal by the father, Karta, coparcener or
the sole surviving coparcener of a part or the whole of the joint family property by any act or
omission, voluntary or involuntary, intended to take part in present or future”1

Thus, it can be said that alienation has a very wide scope and application. The distinguishing feature
of this power is that it was traditionally given only to the father or the Karta and that, but the power
itself is near autocratic as it allows them to sell, gift or mortgage the whole joint family property
without the consent of any coparcener, this is why the ancient texts have specified several conditions
which alone would justify such acts of the manager. These conditions have changed over the
centuries to keep in pace with the changing conditions and the ancient rules have been modified by
the Privy Council in accordance with the principles of equity, justice and good conscience. The lack
of any codified law as well the changing face of the commercial transactions a joint family enters
into these days have created many situations where even the jurists have still not agreed upon the
settled law and this constant situation of flux makes alienation a very interesting study. The effort
has been made to list all the varying viewpoint and critically analyse them in the light of old
traditions and newfound legal principles. Alienation is of vast practical utility as it gives a way of
using the joint family property for the common use of the family and it is a classic example of the
unique position of the Hindu joint family which is always ready to help its members in times of need
and who work together for common benefit.

1
. Hari Singh Gour, THE HINDU CODE,6th ed.1996, p.586.

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Objective of the Study:
The researcher has undertaken this study to research different laws related to alienation of joint
family property and make an analysis about:

 Joint family property

 Alienation of joint family property
 Legal necessity for alienation of property

Hypothesis:
The researcher assumes that whenever legal necessities arises the Karta has the right to alienate the
joint family property but that must be according the Hindu Succession Act 1956.

Research Methodology:
The researcher would like to follow doctrinal method for this research. The researcher will gather
data from both the primary and secondary sources. In the project titled “Alienation under Hindu
Law” the researcher has used the doctrinaire method of research. According to it the researcher has
used the books and journals available in the law library of Chanakya National Law University, Patna.

Sources of Data:
Primary sources Secondary sources

Legislative provisions Books

Case laws Newspapers

Websites

Scope of the Study:

The research will provide a stepping stone for further research. It will also be useful to the society as
the readers will come to know that how the provision is being used today, sometimes to protect and
sometimes to meet tortious ends. Many of the civil cases coming to the courts today involve disputes
regarding property and its alienation. It is understood that with each matter, the law on this point gets
trickier. This paper is a handy guide to case laws on the same.

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 POWER OF ALIENATION

Although no individual coparcener, including the Karta has any power to dispose of the joint family
property without the consent of all others, the Dharma Shastra recognizes it. That in certain
circumstances any member has the power to alienate the joint family property. The Mitakshara is
explicit on the matter. According to Vijnaneshwara: - ... even one person who is capable may
conclude a gift, hypothecation or sale of immovable property, if a calamity (apatkale) affecting the
whole family requires it, or the support of the family (kutumbarthe) render it necessary, or
indispensable duties (dharmamarthe), such as obsequies of the father or the like, made it
unavoidable.
The formulation of Vijnaneshwara has undergone modification in two respects: -
# The power cannot be exercised by any member except the Karta.
# The joint family property can only be alienated for three purposes: -
(a) Apatkale (Legal Necessity)
(b) Kutumbarthe (Benefit of Estate)
(c) Dharmamarthe (Religious obligations)

The modern law of alienation is completely based on the ancient texts with little or no deviation from
the basic rules given there. The modern law of alienation was settled to a large extent in the
landmark judgment of Hindu Succession Act, 1956.

Hunooman Persaud v. Mussmat Babooee2

In this case the alienation made by a widow for the interest of her minor son was challenged, here the
case was that of a mortgage, but the lordships made it clear that the same principles would be
applicable even in the case of sale or gift and that too by any member, father or Karta. Here three
conditions were stated in which the alienation would be valid: -
1. In the case of a legal necessity. Corresponding to the ancient condition of Apatkale
2. For the benefit of the estate, like the concept of Kutumbharthe
3. For religious purposes i.e. Dharmarthe.

The Privy Council in its decision went on to lay many other principles which are still relevant
in deciding cases on invalid alienation:

The power of the manager for an infant heir to charge an estate not his own is under the
Hindu Law, a limited and qualified power. It can only be exercised rightly in the case of need or for
the benefit of the estate. However, where instance, the charge is one that a prudent owner would
make to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of
the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred
upon it in the instance is the thing to be regarded …. Their lordships think that the lender is bound to

2
. (1856)6 MIA313; supra n. 3 p.370.

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inquire into the necessities for the loan and to satisfy himself as well as he can with reference to the
parties with whom he is dealing that the manager is acting in an instance for the benefit of the estate.
However, they think that if he does so inquire and acts honestly, the real existence of an alleged
sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge
and they do not think that under the circumstances, he is bound to set the application of money.3

The above given text gives the boundaries of Karta’s power inside which he can alienate the
joint property even without the consent of all the coparceners. Literally translated it means “he has
special powers of disposition (by mortgage, sale or gift) of family property in a season of distress
(for debt), for the purposes and benefit of the family (maintenance, education and marriages of
members and other dependents) and particularly for religious purposes (Shraddhas and the like)”

Therefore, under the Mitakshara law the manager can validly make an alienation only in
three circumstances i.e. Apatkale (in times of distress), Kutumbarthe (benefit of the family) and
7Dharmarthe (religious purposes). Under Dayabhaga, the powers of the Karta are like that of the
Mitakshara. However, it differs in the powers of the father are much wider as Dayabhaga says that
the father has absolute power to dispose of all kinds of ancestral property by sale, mortgage, gift, will
or otherwise in the same way as he can dispose of his separate property.4

1. Legal Necessity: - It cannot be defined precisely. The cases of legal necessity can be so
numerous and varied that it is impossible to reduce them into water –tight compartments.
Loosely speaking it includes all those things, which are deemed necessary for the members of
the family. What need to be shown is that the property was alienated for the satisfaction of a
need. The term is to be interpreted with due regard to the modern life. Where the necessity is
partial, i.e. where the money required to meet the necessity is less than the amount raised by
the alienation, then also it is justified for legal necessity.

2. Benefit of Estate: - Broadly speaking, benefit of estate means anything, which is done for
the benefit of the joint family property. There are two views as to it. One view is that only
construction, which is of defensive character, can be a benefit of estate. This view seems to
be no longer valid. The other view is that anything done which is of positive benefit, will
amount to benefit of estate. The test is that anything which a prudent person can do in respect
of his own property.

3. Indispensable Duties: - This term implies performance of those acts, which are
religious, pious, or charitable. Vijnaneshwara gave one instance of Dharmamarthe, viz.,
obsequies of the father and added “or the like”. This expression includes all other
indispensable duties such as sradha, upanayana, and performance of other necessary sanskars.
For the discharge of indispensable duties, the Karta may even alienate the entire property.

3
. Ibid.
4
. Daya. II 28-31; supra n.7 p.594.

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 A Karta can even alienate a portion of the family property for charitable/pious purposes.
However, in this case, the powers of the Karta are limited i.e. he can alienate a small portion
of the joint family property, whether movable/immovable.

Alienation Is Voidable
It may be taken as a well-settled law, that alienation made by Karta without legal necessity / benefit
of estate/ discharge of indispensable duties is not void but merely voidable at the instance of any
coparcener.

In CIT v Gangadhar Sikaria Family Trust (1983) 142 ITR 677, the Guwahati High Court
was called upon to decide whether the Income-tax Officer can challenge the validity of an alienation
by the Karta of a Hindu undivided family. The High Court held that under the Hindu Law, the Karta
of a Hindu undivided family has an unfettered right to alienate the joint family property for legal
necessity and for the benefit of the estate or the family. It was further held that even if a transfer by
the Karta were not for legal necessity or for the benefit of the estate, but if it is done with the consent
of the coparceners, it would be only voidable and not void ab-initio. Alienation by the Karta or
manager of a joint family is voidable, but not void. Hence, a third party cannot repudiate it, except in
cases where there is a suggestion that it was in fraud on creditors.

Sole Surviving Coparcener’s Power of Alienation

When the joint family property passes into the hands of the sole surviving coparcener, it assumes the
character of separate property, so long as he doesn’t have a son, with the only duty on him being that
of maintenance of the female members (the widows) of the family.
Thus barring the share of the widows he can alienate the other property as his separate property.
However, this is not valid if another coparcener is present in the wombat the time of the alienation.
But if the son is born after the transaction then he cannot challenge the alienation.

In case a widow adopts a child after the death of her husband, will such a child challenge the
alienation, i.e. can the doctrine of relation back be applied in such cases. The Mysore High Court in
the case of Mahadevappavs. Chandabasappa5 held that such a child can challenge the alienation
made by the sole surviving coparcener as he’ll have an interest in the joint family property. This is in
contrast with the stance taken by the Bombay High Court in the cases of Bhimji vs. Hanumant
Rao6 and Babrondavs. Anna7where it was held that subsequently adopted son cannot divest a sole
surviving coparcener of his right over the joint property and hence cannot challenge any alienation
made by him.

5
AIR 1965 My. 15
6
AIR 1950 Boom. 271
7
AIR 1968 Boom. 8

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 LEGAL NECESSITY

Again, as in the case of benefit of the estate, the courts have refrained from giving a set
definition to the concept of legal necessity so as not to reduce it onto watertight compartment 8. The
concept of legal necessity is essentially one which may change and is thus in a state of flux.

It can basically mean all acts done to fulfil the essential needs of the family members and
only those acts which are deemed necessary.9

The shastri condition on which the concept of legal necessity i.e. Apatkale essentially means
situations of distress and emergency like floods, famines, fire, wars etc. however it has been
recognized under the modern law that necessity may extend beyond that. Thus, it is now established
that necessity should not be understood in the sense of what is indispensable but what according to
the notions of the joint Hindu family would be regarded as proper and reasonable.10

The term "legal necessity" itself explains enough about the concept. The term "legal" here signifies
its justification in law, "necessity" signifies the existence of a situation, need or a purpose that
requires money and that the family does not have that kind of money or alternative resources, with
which that need can be satisfied.
Conditions which need to be fulfilled for validating a transaction under legal necessity are: -

1. Existence of need or purpose, i.e. a situation with respect to family members or its property
which requires money,
2. Such requirement is for a lawful purpose, i.e. it must not be for an immoral, illegal purpose.

3. The family does not possess monetary or alternative resource which the requirement can be
met with, and
4. The course of action taken by the Karta is such as an ordinary prudent person will take with
respect to his property.
5. Payment of government revenue and of debts which are payable out of the family property.

6. Maintenance of coparceners and of members of their families.

7. Marriage expenses of male coparceners and daughters of coparceners.

8. Performance of the necessary funeral or family ceremonies.

9. Costs of necessary litigation in recovering or preserving the estate.

10. Costs for defending the head of the family or any other member against serious criminal
charge.
11. Payment of debts incurred for family business or other necessary purpose.

8
. Dr Paras Diwan, MODERN HINDU LAW,15th ed. 2003, p.302.
9
. Supra n. 2, p. 801.
10
. Supra n. 16.

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However, while such alienation, the consideration for the sale of coparcenary property must not be
inadequate

In Dev Kishan v Ram Kishan, the Karta affected a mortgage, a sub-mortgage and a sale of two
houses belonging to the joint family worth around Rs.8000 to Rs.9000, for a consideration of Rs.400
to Rs.900, which according to him were to be utilized for the marriage of his 3 minor children.
The court invalidated the transaction and stated that:

• The transaction is void as it is opposed to the public policy, i.e. child marriage,
• The members of the family had alternative incomes. And hence, no mortgage was needed,
• The transfer of the property was grossly undervalued as the transfer should have been made
inadequate consideration.

In Hunooman Persaud’s case it has laid down that in case the alienation was made by Karta for a
legal necessity it is again for the alienee to prove that he took sufficient care in finding out if the
transaction was for necessity or no, however once it was proved that he had taken due care, the actual
presence or absence of such a necessity is irrelevant.
The Privy Council in this case held that-

“The power of the manager for the infant heir to charge an estate not his own is under the Hindu law,
a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of
the estate. However, where in the instance, the charge is one that a prudent will make, to benefit the
estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual
pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the
particular instance, is the thing to be regarded.”

The Lordships further held that the lender is bound to inquire into the necessity for the loan and to
satisfy himself as well as he can, with reference to parties with whom he is dealing, that the manager
is acting in the instance for the benefit of estate. However, if he does so inquire and acts honestly, the
real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent
to the validity of his charge then under the circumstances he is not bound to see the application of
money.
The issue in the present case was regarding the extent of the power of a mother as a manager of the
state of her minor son, to alienate the estate. The case related to a mortgage created by the mother.
The principles laid down in this case were-

1- The manager of a joint family acting on behalf of minor members of the family.
2- A Hindu widow and other limited heirs of the property inherited by them from males.
3- Managers of religious endowments.
4- Mangers of estates of lunatics.

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The Hon’ble Supreme Court in Sunil Kumar vs. Ram Prakash11 held that a coparcener has no right
to obtain a permanent injunction against the Karta to prevent him from Alienation of joint family
property since he has the remedy of challenging the same.
The following example would suitably illustrate the above stated principle-

Food shelter and clothing of the family members, marriage of the members of the family including
daughters (special duty), medical care of the members of the family, defence of a family member
involved in a serious criminal case, for the payment of debts binding on the family, payment of
government dues etc.

Dev Kishan v. Ram Kishan12

Facts: - Ram Kishan, the plaintiff filed a suit against appellants, defendants. Plaintiffs and
defendants are members of a Joint Hindu Family. Defendant no.2 is the Karta, who is under the
influence of defendant no.1 has sold and mortgaged the property for illegal and immoral purposes as
it was for the marriage of minor daughters Vimla and Pushpa. The defendant’s contention was that
he took the loan for legal necessity.

Judgment: - The debt was used for an unlawful purpose. Since it was in contravention of Child
Marriage Restraint Act, 1929, therefore it cannot be called as lawful alienation.

PARTIAL NECESSITY

In Krishandas vs. Nathuram13, Privy council held that where the necessity is only partial, i.e.,
where the money required to meet the necessity is less than the amount raised by alienation, in such a
case, the sale will be valid only where the purchaser acts in good faith and after due inquiry and is
able to show that the sale itself is justified by legal necessity.

In the instant case, alienation was for Rs.3500, and the alienee was able to prove the legal necessity
for Rs.3000, the alienation was held valid.

However, where the manager decides to raise money by a mortgage of family property, he can
borrow the precise amount required for necessity; mortgage will stand good only to the extent of the
necessity proved.

11
1988 S.C. 576 0
12
AIR 2002 Raj 370
13
1927 P.C. 37

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 ALIENATION WITHOUT NECESSITY VOID OR VOIDABLE

The question whether Alienation made by a father or other manager which is neither for a legal
necessity nor for the discharge of an antecedent debt is void or voidable has given rise to conflicting
judicial opinions.

The debate was put to rest by the Supreme Court in the case of R. Raghubanshi Narain Singh vs.
Ambica Prasad14, where it was held that alienation made without legal necessity is not void but
merely voidable.

Existing Coparcener’s Right to Challenge Alienation

It is a settled law that an improper Alienation can be challenged by all or anyone of the coparceners
existing at the time of alienation.

In Bombay and Madras, when an alienation is challenged by the coparcener, it will be set aside only
to the extent of their interest in the joint family property. As under these school’s coparcener has
power of alienating his undivided interest by sale or mortgage.
In case of suits filed by the coparceners, Madras High Court has given some vital rules:
In the case of Permanayakam vs. Sivaramma15, where it was held that
1. If the alienation is made only for partial necessity, it may be set aside.

2. If alienation is only a device for distinguishing a gift, the other coparceners don’t lose interest
in the property or survivorship rights.

Finally, it was laid down in the case of Sunil Kumar vs. Ram Prakash16 that a coparcener cannot
ask for an injunction against alienation claiming it is not for legal necessity.
Coparcener who was in the womb at the time of alienation;
Since under Hindu Law, a son conceived is, in many respects, equal to a son born, a coparcener who
is in the womb of his mother at the time of alienation can get the alienation set aside after his birth.
After born Coparcener:
In Shivaji v. Murlidhar17, it has been that an alienation made by a father who has male issues and
before all the sons die another son is born to him, then even after the death of all the sons existing at
the time of alienation, the subsequently born son can challenge the alienation provided the right is
not barred by limitation. The overlapping of lives gives him this right, it is necessary that at the time
of his conception there must have existed an unexpired right among other coparceners to challenge
the alienation.

14
AIR 1971 SC 776, (1970) 3 SCC 350, 1971 III UJ 132 SC
15
AIR 1952 Mad 435
16
Supra Note 17
17
(1954) Bom. 386 (F.B.)

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Adopted son:

Commissioner of gift tax vs. Tejanath18, it has been held that a son adopted after alienation has no
right to challenge alienation even if the alienation was invalid at the time when it was made.

LEGAL RECOURSE IN CASE OF INVALID ALIENATION

If the father, Karta, coparcener or sole surviving coparcener overstep their power in making
the alienation, it can be set aside by any other coparcener who has an interest in the property, from
the time he comes to know of it till the time the suit is barred due to limitation
Art 126 of the Indian Limitation Act 1908 sets the period of limitation for a suit by son
challenging alienation made by the father as 12 years, Art 144 gives the period for alienation made
by Karta as 12 years, in case of mere declaration the period is 6 years.

Only those coparceners who had been conceived at the time of the transaction are competent to
challenge the alienation, any person born afterwards is barred from doing the same. The rules
regarding adopted son are corresponding.

The debate about whether alienation without necessity is void or voidable was put to rest by
the Supreme Court in the case of R. Raghubanshi Narain Singh v. Ambica Prasad19 where it was
held that such alienations are merely voidable.

If the suit is filed by the alienee, then he can neither enforce it against the coparcener who is entitled
to make such alienation, nor can he get a conditional decree that alienation won’t be set aside until he
is compensated.

In case of suits filed by the coparceners, Madras High Court has given some vital rules in the
case of Permanayakam v. Sivaramma20 where it was held that
1 If the alienation is made only for partial necessity, it may be set aside.

2 If alienation is only a device for distinguishing a gift, the other coparceners don’t lose interest in
the property or survivorship rights.
Finally it was laid down in the case of Sunil Kumar v. Ram Prakash21that a coparcener
cannot ask for an injunction against alienation on the ground that it is not for legal necessity.

18
(1972) I.T.R. 452
19
. AIR 1971 SC 776.
20
. AIR 1952 Mad 435.
21
. AIR 1988 SC 576.

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 BURDEN OF PROOF
It has been laid down that in the case the alienation is made by the father for the payment of
his debts, then the burden of proof is on the alienation to prove that he had taken sufficient care to
determine that it was for the payment of debt. The sons can rebut this assumption only by proving
that the debt was Avyavharik i.e. immoral

In the case the alienation was made by the Karta it is again for the alienee to prove that he
took sufficient care in finding out if the transaction was for necessity or no, however once it was
proved that he had taken due care, the actual presence or absence of such a necessity is irrelevant.
These principles were given in the case of Hunooman Persaud’s case.22

It is immaterial that there was earlier mismanagement of the estate if it can be proved that
there was sufficient cause for the alienee to believe that there was an actual necessity which made it
imperative that the alienation be made23

A lapse of time between the transaction and the filing of suit does not make any difference in
the procedure, other than that the standard of proof may be lowered if the courts feel that the hard
evidence has been lost because of the time difference, in this case the presumptions will also be
accepted as evidence.24

If the interest rate is unusually high, then the burden of proof becomes twofold i.e. it must be
proved that there was a necessity to take a loan and then to prove that it was imperative to take the
loan at such high rate. If the court is not satisfied as to the need to take such high interest, then it may
decrease the rate of interest.25

22
. Supra n. 10.h.
23
. Supra n. 16 p. 320.
24
. Supra n. 2 p. 815.
25
. Supra n. 2 p. 817.

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 CONCLUSION

The position of Karta is such which has a duty to maintain all the members and to take care
of their needs and must act for their welfare. With such a duty, he needs to be entitled to
some rights by which he can fulfill the duties he is expected to. The right to alienate is one
such right given to him by the law to fulfill the duties of his office. However, there are
certain loopholes which are present and needs to overcome by passing the requisite
legislations.
The burden of proof of the alienee to prove that he took sufficient care to ascertain whether
there was actual need should be lifted, instead in cases of invalid alienation it should be
demanded of the transferor to prove that there was an actual condition which demanded
instant redress. This should be so because the alienee being an outsider is not in a favorable
position to ascertain it and such an obligation imposed on these transactions would make
lenders unwilling to deal in joint property which would in turn adversely affect the rights of
joint family members.
Even in the case of a valid alienation the rights of the alienee are far from just and this should
be accordingly changed so that the alienee is entitled to the mesne profit of the property from
the day of the purchase instead of the day of the partition, also he should be entitled to
receive only that property which was alienated to him, in my opinion his interest is more than
a mere coparcener.
Other than that, some minor suggestions like the coparcener should be given the right to seek
an injunction against alienations which can be proved to be invalid.
Lastly the position regarding the gifts of affection of immovable property should be made
clear and uniform. Thus, the Karta of a family or a father can alienate the coparcenary
property only if there exists a legal necessity or he can do so for the benefit of estate. He may
also alienate it for the furtherance of the family trade and such an alienation would be
binding on the minor coparceners though, there is an onus on the Karta to prove the existence
of the above-mentioned grounds. But in no circumstance can a Karta alienate the coparcenary
property for his own benefit unless he has consent of all the coparceners or he is the sole
surviving coparcener.

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 BIBLIOGRAPHY

BOOKS
 G.M. Divekar, HINDU LAW: A CRITICAL COMMENTARY, 2nd ed. 2002, Hindu Law
House, Pune.
 R.J. Misra, Mayne’s TREATISE ON HINDU LAW & USAGE, 15th ed. 2003, Bharat Law
House, New Delhi.
 S.A. Desai, (rev.), MULLA PRINCIPLES OF HINDU LAW, 28th ed. 2004, Butterworths
Publications, New Delhi.
 T.V. Rao and Vijender Kumar, (rev.), G.C.V. Subba Rao, FAMILY LAW IN INDIA, 9th ed.
2006, S. Gogia & Company, Hyderabad.

INTERNET
• https://indiankanoon.org/
• https://www.netlawman.co.in
• https://www.lawcommissionofindia.nic.in
• https://www. comtax.up.nic.in
• https://www.law.cornell.edu/
• https://www.legalserviceindia.com
• https://www.lawhandbook.org

ARTICLES
 Ria Jain, Alienation of Property, LAWCTOPUC, November 13, 2015
(https://www.lawctopus.com/academike/alienation-of-property/#_edn9)

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