FAMILY LAW

LIMITATIONS ON THE RIGHT OF

COPARCENERS IN ALIENATION OF JOINT
FAMILY PROPERTY

SUBMITTED TO:

SUBMITTED BY:

Ms. ANKITA

PARV JAIN
BBALL.B.(Hons.)
A3221513021

LIMITATIONS ON THE RIGHT OF COPARCENERS IN ALIENATION

OF JOINT FAMILY PROPERTYJoint Family PropertyBefore going through property we must know that who all are the members or part of joint
family and who all constitutes a joint family
1

By definition a joint hindu family consists of all persons lineally descended from a common

ancestor including their wives and daughters. The common ancestor is necessary for bringing
a Joint Hindu Family into existence; for its continuance common ancestor is not a necessity.
The death of common ancestor doesnt mean that the joint family comes to an end. A hindu
joint family is not a corporate.
It has no legal entity distinct and separate from that of the members who constitute. Its not a
juristic person either. HJF is represented by Karta.
HJF is also diff. from composite family. A single male or female cant make a HJF even if the
assets are purely ancestral.
There is no presumption that joint family possesses joint property.
There is no presumption that property held by a member of joint family or a business
conducted by a coparcener is joint family business.
In Hindu Law existence of joint property is not a condition precedent to the existence of joint
family.
2

Property under Hindu law may be divided into two classes, viz.,
1. Joint-family property or coparcenary property;
2. Separate property or self-acquired property.

1 http://www.lawyersclubindia.com/experts/Joint-family-property-256431.asp#.VQg1jY6UeAU
2 http://www.shareyouressays.com/117745/what-are-the-different-classes-of-propertyunder-hindu-law

 3Joint-family property or Coparcenary property

Joint-family property or coparcenary property signifies the property in which all the
coparceners have community of interest and unity of possession. Such property consists of1. Ancestral property;
2. Property jointly acquired by the members of the joint family;
3. Separate property of a member thrown into the common stock;
4. Property acquired by all or any of the coparcener with the aid of joint family funds.
4

In Bhagwant P. Sulakhe v. Digamber Gopal Sulakhe, the Supreme Court observed that the

character of any joint family property does not change with the severence of the status of the
joint family and joint family property continues to retain its joint family character so long as
the joint family property is in existence and is not partitioned amongst the co-sharers. By a
unilateral act it is not open to any member of the joint family to convert any joint family
property into his personal property.
Ancestral Property:
By the term ancestral property is meant that property which descends from
father, fathers father and great grandfather. In this property a persons
descendants upto three generations, i.e., sons, sons son, sons sons son
acquire an interest by birth.

The manager of a joint family cannot start a new business so as to bind the share of the other
adult coparceners, unless the business is started or carried on with their express or implied
consent.
The income of joint family business constitutes joint family property.

3 http://www.shareyouressays.com/117745/what-are-the-different-classes-of-property-under-hindu-law
4 Modern Hindu Law; Dr. Paras Diwan; Twentieth Edition

Similarly any property acquired in exchange of a joint family property would also be held to
be joint family property.
In case ancestral property is absolutely lost to the family, and a member of the family, by his
own exclusive exertions recovers it without any aid from the joint funds, and with the consent
actual or implied, of the others, the recoverer has certain special claims on the property. The
recovery, if not made with the privity of the co-owners, must at least be bona fide, and not in
fraud or by anticipation of the intention of other co-owners.
5

In Dharam Singh and others v. Sadhu Singh and others, the question was whether the

property was ancestral or separate. In this case properties devolving on father of party due to
the death of issueless brothers and addition to it by the relinquishment of shares by sisters
was held not to be ancestral property vis-a-vis his sons.
Property jointly acquired by the members of the joint family:

Where property has been acquired by the members of joint Hindu family by their joint labour
whether in business, profession or vocation, with the aid of joint family property, it becomes
joint family or coparcenary property. According to Bombay High Court a property acquired
by the joint labour of the members, even without the aid of joint family funds, is presumed to
be joint family property in absence of any indication of an intention to the contrary.
In Gumam Singh v. Pritam Singh & others. the court further held that if property is acquired
by the fund of joint labour even if it was purchased from income derived from land which
was taken on batai and cultivated jointly there would be presumption of jointness and
property would be treated as joint Hindu family coparcenary property.
Property Thrown Into the Common Stock:

Where any coparcener voluntarily throws his self-acquired property into the joint fund with
the intention of abandoning all separate claims to it, it would be joint property, so as to be
divisible among all the members. Such an intention need not be express, it is sufficient if the
owner blends it as one general account without discriminating between the two, in such a way
that a clear intention to waive his separate rights may be established.
5 Modern Hindu Law; Dr. Paras Diwan; Twentieth Edition

In K. Abebul Reddy v. Venkata Narayan the Supreme Court observed that once it is
presumed that the family is joint and it holds joint property it would be a legal presumption
that the property held by an individual member or by all the members is joint family property.
If any member claims his separate right over certain part of joint property the burden of proof
would be on him to prove that it was his separate property.
Property Acquired With The Aid of Joint Family Funds:

Property acquired with the aid and assistance of joint family property is also joint. Thus,
accumulation of income, i.e., rent etc. of joint family property, property purchased out of such
income, the proceeds of sale or mortgage of such property and property purchased out of such
proceeds are also joint family property.
Where in a joint Hindu family some property is purchased in the name of one of its members,
it will be regarded as a joint family property not his own separate property. If he has acquired
any property without the help of joint family property it could be treated as his separate
property. Where any member of joint family blends his self acquired property into common
property of the family or joint family property, it all becomes joint property.

6Separate or Self-acquired propertyProperty which is not joint is called separate or self-acquired property. The word separate
suggests that the family was formerly joint but has now become separate. When a member
separates from joint family, the property which he acquires will be treated as his separate
property vis-a-vis his relations with his brothers, but so far his sons are concerned it would be
regarded as joint family property. The term self acquisition signifies that the property has
devolved upon him in such a manner as nobody except himself has any interest in it.
7

Property acquired by a Hindu in any of the following ways is his self-acquired or separate

property even though he be a member of a joint Hindu family1. Property acquired by a Hindu by his own exertion would be his separate property as it
is not the result of any joint labour with the other members of the joint family,
6 Modern Hindu Law; Dr. Paras Diwan; Twentieth Edition
7 http://www.shareyouressays.com/117745/what-are-the-different-classes-of-property-under-hindu-law

provided it is obtained without detriment to joint family property. Where a person has
acquired any property by way of adverse possession after remaining in its possession
adversely for a period of twelve years it would be treated as his self-acquired property
not a joint property.
Where a member of joint family carries on a business of medical practitioner in
Ayurvedic medicines and thereby earnes heavy sum of money and gives loan on
mortgage, thus accumulating further income, all the earnings and the property thus
acquired by him would be his separate property.
Recently in Maklian Singh v. Kulwant Singh, Supreme Court observed that if a male
member of the Joint Hindu Family purchased the property by his own incomes like
salary income, such property is his self acquired property. Such property inherit his
heir by succession. It could not be said to be the property of Joint Hindu Family.
2. Property inherited by a Hindu from any person other than his father, grandfather or
great grandfather would be his separate property. Where a person earns money from
the practice of a hereditary profession like the hereditary priest, it will not be regarded
as his joint family property but on the other hand his separate property.
In Madan Lal Phul Chand Jain v. State of Maharashtra, the Court held that a Hindu
can own separate property besides having a share in ancestral property.
3. Any property obtained by a Hindu as his share of partition of a joint Hindu family,
provided he has no male issue, shall be treated his separate property. Where a Hindu
makes some acquisitions after partition with the help of his share in joint family
property, that property shall be regarded as his separate property.
4. Any property devolving on a sole surviving coparcener provided there is no widow in
existence who has power to adopt or has a child in her womb, will be regarded as his
separate property.
5. Property obtained by a Hindu by a gift or will unless made by his father, fathers
father or fathers fathers father for the benefit of the family and not exclusively for
himself, would be his separate property.

6. Property obtained by gift of ancestral property made by the father through affection,
will be his separate property.
7. Property obtained by a Hindu by grant from the Government shall be regarded as
separate property.
8. Joint family property lost to the joint family and subsequently recovered by a member
thereof without the assistance of joint funds from a stranger holding adversely to the
family property shall be regarded as his separate property.
9. Gains of Learning: Any income earned by a member of joint family substantially by
means of his education or specialisation, expertise or special intelligence would be
regarded as his separate property. Where a member of joint family acquires some
knowledge or specialisation after getting the education at the cost of joint family fund
and later on earns a considerable sum, whether that sum will be treated as his separate
property or joint family property, became a controversial issue.
8

Main Differences between Coparcenary Property and Separate Property-

The main points of distinction between coparcenary property and separate property may be
laid down as follows:
1. Devolution:
On the death of a coparcener, his undivided interest in the joint family property
devolves by survivorship, and not by succession, (subject to the provisions of Sections
6 and 30 of the Hindu Succession Act, 1956).
The separate property of a coparcener, on the other hand, passes, on his death
intestate, to his heirs by succession, and not by survivorship to the remaining
coparceners.
2. Nature of interest:
All the coparceners have community of interest and unity of possession in the joint
family or coparcenary property. On the other hand, the separate or self-acquired
property of a Hindu belongs to him exclusively even though he may be a member of
a joint Hindu family.

8 http://www.shareyouressays.com/117207/7-main-differences-between-coparcenary-property-and-separate-property

As long as the family is undivided, a coparcener cannot predicate that he or she has, at
any given time, a given share (say, one-third or one-fourth) in the coparcenary
property. His or her share crystallizes only when a partition takes place, and till then,
he or she has a fluctuating interest, liable to be enlarged by deaths in the family, and
capable of being diminished by births in the family. As separate property belongs
exclusively to its owner, the question of predicating shares does not arise in the case
of such property.
3. Acquisition of interest by birth:
The children, grandchildren and great-grandchildren of the coparcener acquire an
interest in the coparcenary property by birth. But, no other coparcener (not even his
own son) acquires any interest by birth, in the separate property of a Hindu.
4. Alienation by will:
Prior to 1956, no coparcener could dispose of by will, his undivided interest in the
coparcenary property, whereas separate property could be freely disposed of by will.
But now, S. 30 of the Hindu Succession Act, 1956, enables a Hindu to dispose of such
interest under a will.
5. Alienation by gift:
Separate property can be gifted away by the owner, to any extent, and to any person.
Thus, if the owner is the father, he can make a gift of his separate property even to a
stranger, without the concurrence of his children. Likewise, he can gift it to one child
to the exclusion of the other children, and so on. No coparcener can, however, alienate
his undivided interest in the coparcenary property by way of gift, without the consent
of the other coparceners. The only exception to this rule is that a father may make a
gift of a small portion of ancestral property, within certain limits and under certain
circumstances, to be discussed later. Even the Hindu Succession Act, 1956, has not
made any provision for alienation of coparceners undivided interest by gift, as it has
for alienation by will.
6. Alienation by sale or mortgage:
No coparcener can alienate his undivided interest in a coparcenary by sale or
mortgage, without the consent of the other coparceners. This general rule admits of
certain exceptions. Thus, the manager of a Hindu joint family can alienate, by sale or
mortgage, a portion (or even the whole) of the joint family property for a legal
necessity or for the benefit of the estate, even without the consent of the other
coparceners. Likewise, if such manager is the father, he enjoys an additional power of
such alienation for the payment of his antecedent debts which were not incurred for

illegal or immoral purposes. (This will be discussed in greater detail later on.) The
separate property of a coparcener can, on the other hand, be freely alienated by him,
by way of sale or mortgage, or otherwise.
7. Partition:
A joint family or coparcenary property is liable to be partitioned, whereas there can be
no question of partitioning the separate property of a member of a joint Hindu family.
So, there is no point or any type of disturbance in alienating an separate property but
alienation in Joint family Property is not that easy and can be challenged in various ways. The
persons who can alienate the Joint family Property are the coparceners of that family and
further it includes Father, Karta and other Coparceners.
Fathers Power of AlienationFathers power of alienation are superior. In addition to this, he can make a gift of reasonable
portion of the property to his daughter and can also sell or mortgage the property for payment
of hid antecedent debts i.e. the debts which were not taken for the immoral purpose.
Kartas Power of AlienationAlthough no individual coparcener, including the Karta, has any power to dispose of the JFP
without the consent of all others, its recognised by Vijaneshwara that in certain
circumstances Karta has the power to alienate the property and it includes:
At the time of legal Necessity
For the Benefit of the Estate
Acts of Indispensable Duties
Coparceners Power of AlienationThe Dharmashastras cautioned against the individual rights of coparceners to alienate JFP
and it was concluded that the coparceners cant alienate the JFP because it will have the effect
of introducing strangers to coparcenary, without the consent of its members and thus,
defeating the rights of survivorship which they would have then possess.
A coparcener is entitled to alienate his individual share in the whole of the property or certain
specific item of the property.
In Bombay, Madras and M.P. H.C. it was held that coparcener cam alienate the individual
interest without the consent of other coparceners whereas in other state it wasnt allowed yet.

In state where alienation is allowed it cant be challenged however, in states where it is not
allowed, any coparcener can challenge it with a condition that at the time of alienation he
must be included in a coparcenary.
Challenge of coparcener born after alienation since coparcener have an interest by birth and
coparcenary extends to four;
Where alienation by father in presence of his son, who ratify it an after born son cant
challenge it.
Where alienation is done by father in presence of his son and the son dont challenge
it in limitation period then grandson cant challenge it.
A post humous grandson cant challenge it.
Grand-father alienate after the birth of grand son- grand son cant challenge it.
So, the difference in power of alienating limits the power of the coparceners and thus all
coparceners have diff. power acc. To their positions.
In Bombay, Madras and M.P. the coparceners need not take the consent but in other states its
mandatory to take the permission otherwise it would be challengeable at the part of other
coparceners.