DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

Session- 2017-18

Family Law

Alienation of Coparcenary Property

SUBMITTED TO: SUBMITTED BY:

Mr. Shashank Shekhar Nishkam Singh
Assistant Professor 160101103
1
 ACKNOWLEDGEMENT:

I would like to express my gratitude to all those who helped me in this topic. I extend
my sincere acknowledgements to Mr. Shashank Shekhar who gave me the
opportunity to make a project on the topic “Alienation of coparcenary property”.I
am deeply indebted to him, whose help and stimulating suggestion helped me in
choosing this topic.

I would also like to thank my friends for their constant help and valuable suggestions.

I further extend my thanks to library staff of DR. RAM MANOHAR LOHIYA

NATIONALLAW UNIVERSITY who helped me in getting all the materials
necessary for the project.

-Nishkam Singh

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 TABLE OF CONTENTS

 INTRODUCTION
 FATHER’S POWER OF ALIENATION
 KARTA’S POWER OF ALIENATION
 PARTIAL NECESSITY
 BENEFIT OF ESTATE
 CONFLICT OF JUDICIAL OPINION
 COPARCENER’S POWER OF ALIENATION
 CONCLUSION

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INTRODUCTION
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.
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.
In this project the subject matter i.e. Alienation has been discussed under the following heads:

 Father’s power of alienation

 Karta’s power of alienation
 Coparcener’s power of alienation
 Sole surviving coparcener’s power of alienation
 Aileen’s rights and remedies

An effort has been made to list the entire varying viewpoint and critically analyze them in the
light of old traditions and newfound legal principles. Alienation is of vast practical utility as it

4
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

FATHER’S POWER OF ALIENATION

A father possesses more power even than Karta as there are situations in which only the father
has the authority to make alienation. Under Dayabhaga School, father is provided with the
absolute powers regarding alienation, i.e. he can alienate separate as well as ancestral property,
including movable and immovable on his wish. As the sons don’t get a right over the property by
birth under Dayabhaga School, father doesn’t need the consent of his sons for the purpose of
alienation.
Father enjoys an absolute power, which empowers him to alienate the property even when there
are no moral justifications. In Ramkoomar vs. Kishenkunkar1, the Sudder Court held that the gift
by a father of his whole estate to a younger son, during the life of the elder was valid though
immoral; however the gift of whole ancestral landed property was forbidden.
Under Mitakshara Law, while it has been a settled law that the father had full power disposal of
his separate movable property, our courts held conflicting views as to father’s power of
alienation over his separate immovable properties. The controversy was set at rest by the Privy
Council in1898 in the case of RaoBalwant Singh vs. Rani Kishori2, wherein it held that father
had full power of alienation over his separate property, both movable and immovable.
As regards, Joint or Undivided property it has been held that the father can alienate undivided
joint family property only in the following two cases:

 Gift of Love and Affection

 Alienation for discharge of his personal debts

Gifts of Love and Affection

The father has power to make a gift of love and affection of a small portion of movable joint
family property. Such gifts may be made by him to his own wife, son-in-law, daughter etc.

1
(1812) 2 SD 42 (52)
2
(1928) 30 BOMLR 1331

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Two gifts are necessary for that validity of such gifts:

1. It should be a gift of love and affection, i.e., father should stand in some relationship of
affection to donee.
2. The gift should be of a small portion of movable joint family property.

In the case of Basho vs. MankoreBay3 ,a gift made to the daughter of Rs.20000 was held by the
Privy Council to be valid as the total value of the estate was 10-15 lakhs.
In the case of Subbarami vs. Rammamma4an important principle was laid down that such gifts
cannot be made by a will, since as soon as a coparcener dies, he loses his interest in the joint
property, which he cannot subsequently alienate.

Gifts of Immovable Property

Such gifts cannot be made of immovable property, though in Guramma v. Malappa5, a gift of
immovable property to daughter made by father after her marriage was held to be valid.
It is submitted that gifts of love and affection of immovable property cannot be made to sons, or
for that matter to any member of joint family. Supreme Court has confined this rule of gifts of
immovable property to daughter only.

Alienation for Discharge of his Personal Debts

Father has the power to alienate the family property for the discharge of his antecedent debts,
which not being immoral or illegal, the sons are under a pious obligation to discharge.
Father can alienate family property to pay his personal debts if the following two conditions are
fulfilled-

1. The debt is antecedent.

2. The debt should not be Avyavaharik i.e. for unethical or immoral purposes.

The above two rules though derived from ancient Mitaksharatext was also laid down in the case
of BrijNarain vs. Mangla Prasad6.

3
(1907)34 IA 107
4
(1920)43 Mad 824
5
1964 AIR 510, 1964 SCR (4) 497
6
(1924) 26 BOMLR 500

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KARTA’S POWER OF ALIENATION
Although no individual coparcener, including Karta has any power to dispose of the joint family
property without the consent of all other, it is a recognized concept by the dharamshatra that in
certain circumstance, any member of family has power to alienate the joint family property.
Vijnaneshwara recognized three exceptional cases in which alienation of the joint family
property could be made by the Karta:

 Legal Necessity (this includes Vijnaneshwara’sApatkale as well as a part of

Kutumbarthe, i.e., for the sake of members family.)
 Benefit of estate (this includes the other part of Kutumbarthe, i.e., for the sake of family
property.)
 Acts of indispensable duty (this includes the entire head of Dharamarthe.)

However, the Karta may alienate the joint family property irrespective of legal necessity or
benefit of the estate with the consent of all adult coparceners in existence at the time of such
alienation. Here again, there is a difference in the law prevailing in different states as to the
position in case the alienation is consented to only by some of the coparceners and not by all. As
per the law in Bombay and Madras, the shares of the consenting coparceners would be bound.
However, in West Bengal and Uttar Pradesh, a coparcener cannot alienate even his own interest
without the consent of all other coparceners and hence such alienation without the consent of all
coparceners would not even bind the shares of the consenting members.

LEGAL NECESSITY
Broadly speaking, legal necessity will include all those things which are deemed necessary for
the members of the family. The term ‘Apatkale’ under Vijnaneshwara may indicate that joint
family property can be alienated only in time of distress such as famine, epidemic, etc. and not
otherwise, however, it has been recognized under the modern law that necessity may extend
beyond that. In DevulapalliKameswaraSastri vs. PolavarapuVeeracharlu7, it was held that
necessity should not be understood in the sense of what is absolutely indispensable but what
according to the notions of the joint Hindu family would be regarded as proper and reasonable8.

7
(1911) ILR 34 Mad 422
8
MisraRanganath J. Hindu Law and Usage (15th edn.,2003), p.805.

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Thus, Legal Necessity doesn’t mean actual compulsion; it means pressure upon estate which may
in law may be regarded as serious and sufficient. If it is shown that family’s need was for a
particular thing and if property was alienated for the satisfaction of that particular need, then it is
enough proof that there was a legal necessity. The following have been held to be family
necessities.

 Maintenance of all the members of the Joint Hindu family, expenses for medical care for
the members.
 Payment of government revenue and government taxes and duties like income tax.
 Payment of debts incurred for family necessity or family business or decretal debts
 Performance of necessary ceremonies, sradhs and upanyana.
 Marriage expenses of male coparceners, and of the daughters of coparceners.
 Payment of debts incurred for family business or other necessary purpose.
 Costs incurred for the defense of the head of the joint family or any other member
involved in a serious criminal charge.

PARTIAL NECESSITY
In Krishandas vs. Nathuram9, 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.

BENEFIT OF ESTATE
An alienation of joint family property can be effected for the benefit to estate also. There is also
a lack of unanimity as to the interpretation of the words, as for the benefit of the estate.

9
1927 P.C. 37

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The courts have not given a set definition of this concept, undoubtedly so that it can be suitably
modified and expanded to include every act which might benefit the family.
In the modern law the first exposition of the expression “for the benefit of the estate” was found
in the case of Palaniappa vs. Deivasikamony10. In this case the judges observed “ No indication
is to be found in any of them(ancient texts) as to what is, in this connection, the precise nature of
things to be included under the descriptions ‘benefit to the estate’… The preservation however of
the estate from extinction, the defense against hostile litigation affecting it, the protection of it or
portions from injury or deterioration by inundations, there and such like things would obviously
be benefits11”
The Privy Council has elaborately illustrated as to what are the incidents of benefit to estate
in Palaniappa v. Devsikmony12, it laid down that “the preservation,” however, of the estate from
extinction, the defense against the hostile litigation affecting it, the protection of it or its portion
from injury or deterioration by inundation, these and such like things would obviously be the
benefits. In broad sense legal necessity includes ‘benefit to estate’.

CONFLICT OF JUDICIAL OPINION

Consequent to this decision as to what is meant by the expression for the benefit of the estate’
there has a conflict of judicial opinions on the issue. According to one view, only that will be a
benefit of estate which is of a defensive character, i.e., which is done to avert an eminent danger
to the property. The second view is that anything which is of positive benefit to the family as is
such as a prudent owner would carry out with the knowledge available to him at the time.
The Supreme Court later added its own observation as to what constitutes benefit, in the case
of Balmukund vs. Kamlawati&Ors13;
“for the transaction to be regarded as for the benefit of the family it need not be of a defensive
character. Instead in each case the court must be satisfied from the material before it, that it was
in fact conferred or was expected to confer benefit on family.”
Thus, the only limitation which can be placed on the Karta is that he must act with prudence and
prudence implies caution as well as foresight and excludes hasty, reckless and arbitrary

10
1917 P.C. 68.
11
http://www.scribd.com/doc/68527077/Alienation-Under-Hindu-Law.
12
Supra Note 10
13
964 AIR 1385, 1964 SCR (6) 321.

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conduct14.Therefore, the Karta, as prudent manager can do all those things which are in
furtherance of family’s advancement or to prevent probable losses, provided his acts are not
purely of a speculative or visionary character.
Differing from Allahabad High Court, a full Bench of Mumbai High Court in Hem raj vs.
Nathan15took an intermediate view and held that “property cannot be alienated merely for the
purpose of enhancing its value, though, at the same time, it would not be correct to say that no
transaction can be for the benefit of estate which it is not of a defensive character”.
The below given illustrations will give an idea as to the cases where the courts have held the
alienation to be for benefit of the estate:-
In, Hari Singh vs. Umrao Singh16, when a land yielding no profit was sold and a land yielding
profit was purchased the transaction was held to be for benefit.
In Gallamudi vs. Indian Overseas Bank17, when a alienation was made to carry out renovations
in the hotel which was a family business, it was held to be for benefit.
Indispensable Duties
The third ground upon which the authority of the Karta to alienate joint Family property rests, is
where indispensable requires it. The term “indispensable duties”, implies the 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”. The phrase “and the like”
refers to annual sraddhas, the ceremony of upanayanam, the marriage of coparceners and of girls
born in family and all other religious ceremonies. Apart from such indispensable ceremonies, gift
within reasonable limit can be made for pious purposes, for ex; a small portion of property can
be alienated for a family idol or to an idol in a public temple.
The major case in this regards is that of GangiReddi vs. TammiReddi, wherein the Judicial
Committee held that:-
“A dedication of a portion of the family purpose of a religious charity may be validly by the
Karta without the consent of all the coparceners, if the property allotted be small as compared to
the total means of the family. It also lays down the principle that the alienation should be made
by the manager inter vivos and not de futuro by will”.

14
J. Hindu Law and Usage (15th edn.,2003), p.805.
15
(1935) 37 BOMLR 427
16
1979, All. 65.
17
1978 A.P. 37.

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BURDEN OF PROOF
In the landmark case of Hanoomaprasad vs. Babooee18, it has been held that the burden of proof
whether the transaction is for legal necessity, benefit or for indispensable duty, is on alienee.
However, what the alienee is required to prove is: either there was an actual need or that he made
proper and reasonable enquires as to the existence of needs and acted honestly. It is not
necessary for him to show that every bit of consideration which he advanced was actually
applied for meeting legal necessity. In short the onus may be discharged by the alienee by:

1. Proof of actual necessity or,

2. By proof that he made proper and bonafide inquiries about the existence of legal
necessity and that he did all that was reasonable to satisfy himself as to the existence of
legal necessity.

COPARCENER’S POWER OF ALIENATION

The subject may be divided under two heads:

1. Involuntary Alienation.
2. Voluntary Alienation.

Involuntary Alienation
Involuntary Alienation means the Alienation of the undivided interest in execution proceedings.
In 1873, the Privy Council settled the law by holding that the purchaser of undivided interest at
an execution sale during the life of debtor of his separate debt acquires his interest in such
property with the power of ascertaining and realizing it by partition. The limitation of this rule is
that such a decree cannot be executed against a coparcener after his debt. But if his interest has
been attached during his lifetime, it can be sold in court sale after his death.

Voluntary Alienation
Once it was accepted that the undivided interest of a coparcener can be attached and sold in
execution of money decree against him, it was the next logical step to extend the principle to
voluntary alienation. When the owner of property transfers it willingly, it is voluntary alienation.

18
1856 6 MIA 393

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When a coparcener can be forced to do, he should also be permitted to do it himself, and
somehow the principle was extended to voluntary alienations.
Voluntary Alienation may be made in following forms:

Gifts
It is a well-settled law that the gift by a coparcener in Mitakshara family of his undivided interest
is wholly invalid. A coparcener cannot make a gift of his undivided interest in the family
property either to a stranger or to a relative except for purposes warranted under special texts. In
RadhakantLal vs. Nazma Begum19, gifts of a part of joint family estate made by a Hindu in
favor of two of his concubines in the daughter of one of them was held to be invalid as against
his sons and grandsons even in respect of his own interest.

Sale and Mortgage

According to Bombay, Madras and Madhya Pradesh High Courts, a coparcener has the power to
sell mortgage or otherwise alienate his undivided interest without the consent of other
coparceners. In the rest of Mitakshara jurisdiction, such alienation is not permitted and a
coparcener has no power to alienate hid undivided interest by sale or mortgage, without the
consent of other coparceners.

Renunciation
A coparcener has power to renounce his share in the joint family property. A gift by a coparcener
of his entire undivided interest in favour of other coparcener or coparceners will be valid whether
it is regarded as one made with the consent of one or others or as a renunciation in favour of all.
Renunciation with a condition to pay maintenance to him is valid. But a gift or renunciation of
his share by one coparcener in favour of his one of several coparceners is not valid.
In AlluriVenkatapathiRaju vs. VenkatnarasimhaRaju, Privy Council held that, a coparcener’s
renunciation of his interest merely extinguishes his interest in the joint estate and its only effect
is to reduce the number of persons to whom shares will be allotted if and when a division of the
estate takes place.

Sole Surviving Coparcener’s Power of Alienation

19
(1918) 20 BOMLR 724.

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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 hisseparate 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 subsequent to the transaction then hecannot challenges 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. Chandabasappa20 held that such a child can actually 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. HanumantRao21 and Babrondavs. Anna22where 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.

Coparcener’s Right to Challenge Alienation

If the father, Karta, coparcener or sole surviving coparcener oversteps their power in making the
alienation, it can be challenged and 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.
The burden of proof is on the alienee to prove that it was for a valid purpose. It has been laid
down that in 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 such a case the burden of proof that the debt was tainted is on
the son.

Alienation in case of Legal Necessity

20
AIR 1965 My. 15
21
AIR 1950 Boom. 271
22
AIR 1968 Boom. 8

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In HunoomanPersaud’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 Hon’ble Supreme Court in Sunil Kumar vs. Ram Prakash 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.

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. RaghubanshiNarain Singh vs.
Ambica Prasad23, 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 schools 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. Sivaramma, 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 Prakash that a coparcener cannot
ask for an injunction against alienation on the ground that it is not for legal necessity.
Coparcener who was in the womb at the time of alienation;

23
AIR 1971 SC 776, (1970) 3 SCC 350, 1971 III UJ 132 SC

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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. Murlidhar24, 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 give 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.
Adopted son:
Commissioner of gift tax vs. Tejanath, it has been held that a son adopted subsequent to
alienation has no right to challenge alienation even if the alienation was invalid at the time when
it was made.

24
1954)Bom. 386 (F.B.)

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 CONCLUSION

An effort has been made to list the entire varying viewpoint and critically analyze 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

16
BIBLIOGRAPHY
a) Books:

 MisraRanganath J. Hindu Law and Usage (15th edn.,2003), p.805. Dhirajlal&Ratanlal,

The Code Of Criminal Procedure , 19th Edition, Lexis Nexis
 J. Hindu Law and Usage (15th edn.,2003), p.805.

b) Websites:

 http://www.scribd.com/doc/68527077/Alienation-Under-Hindu-Law.

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