BC0180053

E.THARUN ROSHAN

Family Law - II Assignment

Mahadevappa v. Chanabasappa

This is an issue that arises when all the coparceners die leaving behind just one coparcener
known as the sole surviving coparcener. Now when the joint family property is transferred to
this sole surviving coparcener it assumes all the features of a separate property. He acquires
full rights of alienating the property the way he wishes to like, sale, mortgage, gift etc. This is
so because at the time of alienation, there is no other coparcener who has interest in the
family property. This kind of an alienation cannot be questioned by a son that is adopted
eventually or by a son that is born later on. This was the stand in the case of Guramma v
Mallappa. But if there was a child in the womb at the time of alienation, the sole surviving
coparcener cannot alienate and the child born later can challenge such alienation upon
attaining majority. This was also held in the same case. But in the case of Mahadevappa v.
Chanabasappa, the Mysore High Court observed that the alienation made by the sole
coparcener is not binding upon the subsequently adopted son by the coparcener widow. He
can thus challenge it. But in the case of Bagbonda v. Anna, the Bombay High Court has
observed that the adoption of a son by the widow subsequently does not affect the sole
surviving coparcener's right of alienation. Thus it can be concluded that the sole surviving
coparcener has complete right of alienation except when there is a child in the womb that it
can be challenged. Also, the adoption of a son by the widow does not limit the rights of
alienation of the sole surviving coparcener.

Now in my opinion, the sole surviving coparcener should be vested with all the rights to
alienate because he is the one finally who obtains ownership and possession of the property.
Also, in my opinion, if the sole surviving coparcener has knowledge about the existence of
the child in the womb, the coparcener should not call for an alienation and when he does not
have knowledge about the child in the womb, the child born can be given the right to
challenge but should be limited.
Alienee's Rights and Remedies

Karta's alienation

In cases where the alienation is valid, there would be no problem. The alienee can enjoy
possession of the property. The problem arises when the alienation is invalid and if the
alienee can go against the alienating coparcener's interest and the interests of other
coparcener to get any remedy. In the states of Bombay, Madhya Pradesh and Madras, the
alienation can be set aside only to the extent of the non alienating coparceners. There is no
refund for the alienee with respect to the shares of these non alienating coparceners. Also, the
sons are not liable to the alienee when the father alienates the property. This is so because of
the doctrine of pious obligationas the debt is not antecedent. The issue also arises when the
alienation done by the father is set aside at the instance of the sons during the lifetime of the
father. Now at least does the alienee have any equity or remedy. The Calcutta High Court in
case of Hasmat v. Sundar has held that when the sale is set aside, it is the father's debt to
refund the purchase money unless it is proved that it is a avyavaharika debt where the whole
joint family property is liable. Thus the sons cannot get back the property unless the entire
amount is refunded. But the other courts held the contrary view stating that it is violative of
the antecedent rule. The Supreme Court re-affirmed that the "antecedent debt" means
antecedent in fact as well as in time, that is to say, that the debt must be truly independent of
and not part of the transaction impeached.

Alienee's right of joint possession:

Here the question of whether the alienee has a right of possession of the specific properties
alienated to him before he seeks partition will be dealt. There are various opinions of
different High Courts regarding the same.

The High Courts of Madras, Calcutta and Allahabad held that the alienee has no joint
possession with the other coparceners, where the alienee has obtained possession of the
property, the coparceners can sue the alienee for the recovery of the entire property. Where
such a suit is filed, the alienee cannot counter claim or go against the partition. This does give
the other coparcener to get into the property directly and recover possession.

The Bombay High Court is of the view that, if the purchaser is a stranger who has not yet
obtained possession, he cannot be given possession. His remedy is thus a suit for partition. In
case the alienee has obtained possession, the non alienating
coparceners have to jointly possess the property along the alienee. Or they can also sue for
recovery of possession. It is the court's discretion to allow the possession till the partition.

Thus, this issue has not yet been settled and is still open for arguments.

In my opinion, the alienee should not be given joint possession along with the other
coparceners since the ownership anyways does not lie with him/her. Also, the other
coparceners should not be given the right to recovery of possession from the alienee as it is
violative and not just.