UNAUTHORISED ALIENATION AND ITS CONSEQUENCES

SUBMITTED BY SMRITI, (ROLL NO. 1650), B.B.A.L.L.B. (HONS.)

SUBMITTED TO TO Mrs. POOJA SRIVASTAVA, ASSISTANT PROFESSOR OF LAW

FINAL DRAFT SUBMITTED IN PARTIAL FULFILLMENT OF THE COURSE

FAMILY LAW II FOR THE COMPLETION OF B.B.A.L.L.B (HONS.) COURSE.

SESSION 2016-2021

APRIL 2018

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR

PATNA

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 DECELERATION BY STUDENT

I hereby declare that the project entitled “UNAUTHORISED ALIENATION AND ITS

CONSEQUENCES” submitted to Mrs. Pooja Srivastava, Teacher associate of law is my

original work and the project has not formed the basis for the award of any degree, associate

ship, fellowship or any other similar titles. I have not submitted this work elsewhere for any

other degree or diploma. I am fully responsible for the contents of my Project Report.

(Signature of candidate)

SMRITI

Chanakya National Law University

13/4/2018

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 ACKNOWLEDGEMENT

I am using this opportunity to express my gratitude to everyone who supported me throughout

the course of this Family Law project. I am thankful for their aspiring guidance, invaluably
constructive criticism and friendly advice during the project work. I am sincerely grateful to
them for sharing their truthful and illuminating views on a number of issues related to project.

First, I would like to thank my faculty Mrs. Pooja Srivastav for her exemplary guidance,
monitoring and constant encouragement throughout the course of this project. I would also like
to express my deep gratitude to her for her valuable suggestions. Her lectures on Family law
gave me lot of insight into carrying out research.

The contribution made by my classmates and friends are, definitely, worth mentioning. I would
also like to express my gratitude towards the library staff for their help.

I would like to thank my parents and my brother for their constant support and encouragement
without which this project would not have seen the light of the day.

Last, but far from the least, I would express my gratitude towards the almighty and all those
unseen hands who helped me out at every stage of my project.

SMRITI

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 Table of Contents

INTRODUCTION .......................................................................................................................... 6

HYPOTHESIS ............................................................................................................................ 8

RESEARCH METHODOLOGY ................................................................................................ 8

AIMS AND OBJECTIVE ........................................................................................................... 8

POWER OF ALIENATION ........................................................................................................... 9

Karta’s Power of Alienation........................................................................................................ 9

Father,s Power of Alineation..................................................................................................... 11

Coparcener’s power of alienation ............................................................................................. 12

The subject may be divided under two heads: .......................................................................... 12

Sole Surviving Coparcener’s Power of Alienation ................................................................... 14

UNAUTHORIZED ALIENATION.............................................................................................. 15

Status of such alienation ............................................................................................................ 15

CONSEQUENCES OF UNAUTHORIZED ALIENATION ....................................................... 17

Coparceners’ right to challenge such alienation of property..................................................... 17

ALIENEE’S RIGHTS AND REMEDIES .................................................................................... 19

Karta’s Alienation ..................................................................................................................... 19

Coparcener’s Alienation and the Alienee.................................................................................. 19

Burden of proof lies on the alienee ........................................................................................... 20

Rights of Alienee ....................................................................................................................... 21

Right to Partition ....................................................................................................................... 21

Right to Mesne Profits............................................................................................................... 21

Right to impeach previous alienation ........................................................................................ 21

Right of Joint Possession .......................................................................................................... 22

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CONCLUSION ............................................................................................................................. 23

BIBLIOGRAPHY ..................................................................................................................... 24

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 INTRODUCTION

Property has always been a tangled issue amongst the family members which leads to conflict in
the society. The rights over properties changes with the birth and death of the family members.
Alienation of such property can be defined as the transfer of property through gifts, wills or
mortgage. The ownership is incomplete without having a right to alienate that property.
However, in a joint family property all the coparceners have an equal right over the property and
thus it cannot be alienated without the authorization of all.

Karta is the manager of the Hindu family and therefore possess some different rights. However,
this doesn’t mean that property will be treated as his whole and he also has interest like other
coparceners. Alienation of a property for the common good of the family is a classic example of
joint Hindu families in India which is always ready to accommodate each other. Transfer of
property without any justification is the ground for studying such laws. Whenever the Karta steps
out of his power and does something which is prejudicial to the interest of other coparceners the
court steps in and gives the coparceners right to challenge such unauthorized alienation.

Unauthorized alienation of property means the transfer of the property without any justification
which leads to invalidation of such transfer. Alienation means transfer of property, such as gifts,
sales and mortgages. As we know that Karta is the manager of the Hindu families and therefore
works for the welfare of the family. 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

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. Such alienations are governed by the

1
Hari Singh Gour,the hindu code 586 (6th ed., 1996).

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Transfer of Property Act. Transfer of property without any justification is the ground for
studying such laws.

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.

This research paper deals with the alienations by different members of the family, validity of the
alienation, conditions related to alienation, challenges to an unauthorized alienation, burden of
proof and rights of an alienee. This paper mainly focuses upon the alienation of property by
Karta without any necessity, benefit of estate or to fulfil indispensable duties which are
commonly known as unauthorized alienation.

An effort has been made to list the entire 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.

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HYPOTHESIS
Karta is the only person who has the power to alienate the joint family property.

RESEARCH METHODOLOGY
The researcher will rely on Doctrinal method of research methodology. The sources used in this
project are secondary sources in form of books, internet.

AIMS AND OBJECTIVE

The Objective of the research is to know about unauthorized alienation of property and its
consequences and right to challenge such alienation.

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 POWER OF ALIENATION

Under Hindu law, ordinarily, neither the Karta nor any other Coparceners singly possesses 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. However under certain circumstances, such alienation can be made
under the Mitakshara school also:

(i) Karta’s power of alienation

(ii) Father’s power of alienation
(iii) Coparcener’s power of alienation
(iv) Sole surviving coparcener’s power of alienation

Karta’s Power of Alienation

It is always said that the power of Hindu joint family vests in the Karta. But when it comes to
property matters, he is not the sole owner of the property and therefore power of alienation can
be exercised by him only in certain cases. The powers of the Karta under Dayabhaga School are
similar to that under Mitakshara law. The alienation of property by Karta can be done only in
three circumstances i.e. necessity (Apatkale), benefit of the estate (Kutumbarthe) or for
performance of indispensable duties (Dharmamarthe). Now the question comes that how such
authorization can be made? It can be done either expressly or judicially. Where some
coparceners are major coparceners, he is not expressly authorized to do so, though this can be of
help in filling the gaps to a limited extent, while providing legal necessity.2

Benefit of Estate: Benefit of estate which was commonly known as “kutumbarthe”. It has been
explained that the alienation can be done for satisfying the needs of family property or any other
family estate is benefited. Primarily this was allowed when transfers were purely defensive or
protective in nature but with the instances of dilution of ‘apatkale’, alienations that an ordinary

2
Salamat Khan v. Bhagat, AIR 1930 All 379; Khushi Ram v. Mehr Chand, AIR 1950 East Punjab 272.

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prudence man would view as appropriate in the given set of situations are also approved.3 The
first exposition of the expression “for the benefit of the estate” was found in the case of
Palaniappa vs. Deivasikamony4. In this case the judges observed “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 benefits.”5 The alienations by the Karta in favour of benefit of estate are not void and
therefore are authorized under the law.

Legal Necessity: Legal necessity means Apatkale, which include all those things which are
deemed necessary for the members of the family. In Devulapalli Kameswara Sastri vs.
Polavarapu Veeracharlu6, 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 reasonable7. 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: (i) Maintenance of all the
members of the Joint Hindu family, (ii) Payment of government revenue and government taxes
and duties, (iii) Payment of debts incurred for family necessity or family business or other
necessary purpose, (iv) Costs incurred for the defence of the head of the joint family or any other
member involved in a serious criminal charge, etc.

In Krishandas vs. Nathuram8, 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.

Performance of indispensable duties: Proceeding to the third ground, the property can be
alienated by the father or karta where the indispensable duties such as obsequies of the father or

3
Balmukund v. Kamlavati, AIR 1964 SC 1386.
4
1917 P.C. 68.
5
http://www.scribd.com/doc/68527077/Alienation-Under-Hindu-Law.
6
(1911) ILR 34 Mad 422
7
Misra Ranganath J. Hindu Law and Usage (15th edn.,2003), p.805
8
1927 P.C. 37

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the like.9 This also includes the marriage ceremonies of the family members which is also
considered as legal necessity as it is the most essential sanskara.10 Alienations are also permitted
for charitable and pious purposes. However, here the quantum of the property sold is
performance of indispensable religious ceremonies or where the transaction would be for benefit
of estate, but only a small portion of family property can be alienated for pious or charitable
purposes. The point to be noted here is that pious obligation does not include gifts made out of
love and affection. Thus, it is very clear that karta or father can alienate property only with
respect to performance of religious and indispensable duties.

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.

Father,s Power of Alineation

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.

Father enjoys an absolute power, which empowers him to alienate the property even when there
are no moral justifications. In Ramkoomar vs. Kishenkunkar11, the 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 Rao Balwant Singh vs. Rani Kishori12, 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:

9
Mitakshara I, 1, 28, 29.
10
T.V. Subbarao and Vijender Kumar, (rev.), GCV Subba Rao, Family Law In India 77 (9th ed., 2006).
11
(1812) 2 SD 42 (52)
12
](1928) 30 BOMLR 1331

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 (i) Gift of Love and Affection
(ii) 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. Two things are necessary for that validity of such gifts:

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

In the case of Basho vs. Mankore Bay13, 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.

Gifts of Immovable Property: Such gifts cannot be made of immovable property, though in
Guramma v. Malappa14, 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. 15

Alienation for Discharge of his Personal Debts: Father can alienate family property to pay his
personal debts if (i) The debt is antecedent. (ii) The debt should not be Avyavaharik i.e. for
unethical or immoral purposes. These rules though derived from ancient Mitaksharatext was also
laid down in the case of Brij Narain vs. Mangla Prasad16

Coparcener’s power of alienation

The subject may be divided under two heads:

a. Involuntary Alienation.
b. Voluntary Alienation.

13
](1907)34 IA 107
14
1964 AIR 510, 1964 SCR (4) 497
15
Ammathayee v. Kumaresan AIR 1967 SC 569
16
(1924) 26 BOMLR 500

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Involuntary Alienation: Involuntary Alienation means the Alienation of the undivided interest in
execution proceedings. The Court 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.17 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. 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
Radhakant Lal vs. Nazma Begum18, 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.19

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.20

Renunciation: A coparcener has power to renounce his share in the joint family property. It does
not result in general partition.21. Renunciation to be valid must be of entire interest in favour of

17
Deen Dayal v. Jagdeep, (1987) 4 IA 247
18
(1918) 20 BOMLR 724.
19
(1924) 26 BOMLR 825
20
Manna Lala v. Karu Singh, AIR 1919 PC 108; Laxmi v. Kala, AIR 1977 All 509
21
Raghuban Narain v. State of UP, AIR 1972 SC 2096

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entire body of coparceners. But a gift or renunciation of his share by one coparcener in favour of
his one of several coparceners is not valid. Renunciation with a condition to pay maintenance to
him is valid. In Alluri Venkatapathi Raju vs. Venkatnarasimha Raju22, 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

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 Thus barring the share of the
other coparceners he can alienate the other property as his separate property. However this is not
valid if another coparcener is present in the womb at the time of the alienation. But if the son is
born subsequent to the transaction then he cannot 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 Mahadevappa vs. Chandabasappa23 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. Hanumant Rao24 and Babronda vs. Anna25 where 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.

22
(1936) 38 BOMLR 1238
23
AIR 1965 My. 15
24
AIR 1950 Boom. 271
25
AIR 1968 Boom. 8

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 UNAUTHORIZED ALIENATION

As discussed earlier, the grounds on which Karta can alienate the property if anything is done
contrary to the aforementioned grounds then such alienation is invalid. The alienation by the
Karta can be invalid for two reasons i.e. when such alienation has been obtained without the
express authorization of all the coparceners and secondly when the alienation is not made in
favour of any of the aforementioned grounds. However, the judge made-law has certified certain
exceptions and allows even voluntary alienations of undivided property in the state of Bombay,
Madhya Pradesh, and Madras.

Alienation of joint family property is unauthorized in following cases even when it is made for
consideration:

(i) Alienation by an undivided coparcener of the interest of the other coparceners without
their consent in the state of Maharashtra, Gujarat, Tamil Nadu, Andhra Pradesh and
Madhya Pradesh.
(ii) Alienation by an individual coparcener of his own interest or that of the other
coparceners in the other parts of India.
(iii) Alienation by the Karta it the absence of a legal necessity or the benefit of estate; and
(iv) Alienation by the father of the interest of his sons for the repayment of his debt which
is neither antecedent nor avyavaharika.

Status of such alienation

An alienation made in contrary to the objectives of the Hindu law is not void, but merely
voidable26 at the option of the other coparceners who, if major did not consent to this alienation
or were minors at that time.27 Where the coparceners, though against the alienation, do not
express their dissent by challenging it as invalid or by asking for partition and ascertainment of
their shares before it is effected, the alienation remains valid. Alienation can be made for the
benefit of the estate, for legal necessity or for meeting any antecedent debts, for management of
the joint property by the karta or pious obligation of a son to discharge his father’s debts subject

26
R. Raghubanshi Narain Singh v. Ambica Prasad, AIR 1971 SC 776.
27
Ramesh Damodhar Deshmukh v. Damodhar Domaji Deshmukh, 1999(1) Mh.L.J 153.

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to section 6(4) of the Act28 as amended in 2005 which has abolished the doctrine of pious
obligation for the debt contracted after 2005.29

The nature of an unauthorized alienation is such that if the other coparceners who are prejudiced
by it ratify it, the transaction gets binding force and if on contrary it is not ratified it does not
bind any party and the transaction remains unenforceable.

28
Hindu Succession Act, 1956.
29
Shalini Sumant Raut and Ors. v. Milind Sumant Raut and Ors., 2012 SCC OnLine Bom 1839 : (2013) 3 Mah LJ
364 : (2013) 1 AIR Bom R 713 : 2013 AIR CC 489 : (2013) 5 Bom CR 430.

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 CONSEQUENCES OF UNAUTHORIZED ALIENATION

If the father, karta, coparcener, sole surviving coparceners steps out of their power and makes
any alienation then such alienation can be challenged and set aside before it becomes time
barred. According to Article 126 of the Indian Limitation Act, 1908 the period of limitation for a
son to challenge his father’s alienation is 12 months and as per Article 144 the period of
limitation for coparceners to challenge the alienation made by karta is 6 years.

Coparceners’ right to challenge such alienation of property

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. Sivaramma30, where it was held that: If the alienation is made
only for partial necessity, it may be set aside.

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 Prakash31 that a coparcener cannot
ask for an injunction against alienation on the ground that it is not for legal necessity.

30
AIR 1952 Mad 435
31
1979, All. 65

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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. Murlidhar32, 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. Tejanath33, 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.

32
(1954)Bom. 386 (F.B.)
33
(1972) I.T.R. 452

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 ALIENEE’S RIGHTS AND REMEDIES

Karta’s Alienation
In case the alienation is valid then there would be no problem as the alienee would automatically
get all the rights of a mortgagee against the mortgager.

However if the alienation is pronounced as invalid his situation is very unclear-In the states of
Maharashtra, Madhya Pradesh and Madras where the alienation is set aside only to the extent of
non-alienating coparcener’s share, there is no equity entitling the alienee to a refund of
proportionate part of purchase money in respect of those shares.

In the case of Narayan Pd vs. Sarmam Singh34, the Privy Council held that in states where
alienation can be totally set aside, the alienee would have no equity against his purchasing
amount.

In the case of Hasmat v. Sundar,35the Calcutta High Court said that if the alienation made by the
father was set aside, then the sum becomes the debt of the father which has to be paid by the
sons, hence they cannot set aside the alienation without refunding the purchasing price, however
this decision has been criticized as this principle is violative of the antecedent rule.

Coparcener’s Alienation and the Alienee

Where the sale of coparcenary property or an interest therein is within the authority of the
alienor, it cannot be set aside and the alienee gets certain rights in respect of that property. If the
whole of the coparcenary property is sold, the position of the vendee is governed by the general
law. He is full owner of the property, entitled to the possession thereof and to the ejectment of
the members of the joint family. No question of Hindu law arises here. But where a person
purchases an undivided interest of a coparcener in the joint family property, some important
issues of personal Hindu law crop up. Here ordinarily the rule of Hindu law is that the vendee
whether at a private sale or at an auction sale by court stands in the shoes of vendor, but it does
not mean that he becomes a member of joint family property like his vendor

34
1917 P.C. 41
35
(1885) ILR 11 Cal 396

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Burden of proof lies on the alienee
It is a well settled law that when the validity of alienation is challenged before a court, the
burden of proving that the transfer is valid lies on the alienee. Alienee is the person in whose
favour karta has made the transfer. This is not subjected to any exceptions. When we deal with
this the obvious thought that comes up is why alienee should be made liable? How is he
supposed to know the family matters of Karta? Why should he prove that the transfer fell within
the three grounds i.e. the legal necessity, benefit of estate or for performance of indispensable
duties? This is always justified on the ground that it is prejudicial to the interest of the
coparceners and alienee is seen as a beneficiary. If we critically analyze this there are many
problems with such interpretation.

Alienee is a stranger to the family members and therefore how can he know about the internal
matters of the family. When the burden of proof lies upon him, he is required to go deeply into
the matters of the family and inquire whether the transfer falls within any of the three categories.

Secondly, for proving that the transaction was done for legal necessity he is required to show that
there were no other financial alternative resources. Financial matters are the intrinsic matter of
the family and thus alienee may have a difficulty in proving this.

It is against the principles of natural justice. Litigation is very time-consuming process and it
may sometimes take up to 10-20 years. It is clear that proving the validity of such transfer is very
difficult on the part of the alienee as the ground of alienation are directed towards the internal
family matters.

Mere recitals in the transfer deed do not prove the validity of the alienation,36 but only have the
effect of putting the alienee on the ground; to probe further into the matter e.g., a recital in the
mortgage deed executed by the Karta may say that the property is mortgaged to use the loan for
payment of government dues. Whether these dues exist, whether the family has alternate
resources to pay them off or not, and whether the amount of dues is in consonance with the
consideration or not, are the facts that must be ascertained by the alienee, from the Karta, the
coparceners or from other family members or even through independent means.

36
Sreeramulu v. Thandana Krishanayya, (1942) 2 Mad LJ 452.

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Rights of Alienee
In the states where an undivided coparcener is entitled to alienation his interest in Mitakshara
coparcenary, such alienation cannot be challenged. In the states where he is not permitted to do,
it can be set aside with the help of the court.

Right to Partition
The right to partition of the alienee has been interpreted by the courts in the different manners.
However, it is well settled that this right exists. According to the Bombay and Madras High
Courts, the purchaser cannot demand the very property which has been sold to him. He can only
ask for the general partition of the interest of his alienor.37 The reason is that because of the unity
of ownership of the coparcenary property, the alienor coparcener cannot be held to be entitled to
the specific property to the exclusion of the other coparceners.

Right to Mesne Profits

Mesne profits means the profit that has been accrued by a person by wrongful possession of a
property as defined under Section 2(12) of Civil Procedure Code. Alienee is not entitled to any
mesne profits from the date of purchase till date on which partition is decreed. The Supreme
Court held that a purchaser in an auction purchase of coparceners share in execution of a money
decree against him is not entitled to mesne profits from the date of his purchase.38

Right to impeach previous alienation

The purchaser of a coparcenary property in a transaction of sale which is authorized can
challenge the earlier alienation which was not authorized. This happens in three cases:

(i) When he inherits the property of a coparcener by testamentary or intestate succession

(ii) When the property alienated without an authority is later on alienated with authority
to a different person, the later alienee can challenge the earlier alienation. This right is
given to him for the purpose of protecting the interest he has acquired.
(iii) A purchaser in an execution sale of the coparcenary property which had already been
alienated without authority can challenge the earlier alienation39

37
tp://www.scribd.com/doc/68527077/Alienation-Under-Hindu-Law.
38
Sidheshwar Mukherjee v. Bhubneshwar Prasad Narainsingh, 1953 AIR 487, 1954 SCR 177.
39
http://www.lawteacher.net/property-trusts/essays/hindu-law-and-the-transfer-of-property-act-law-essays.php

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Right of Joint Possession
This right is different under different state laws. In the State of Bombay, the purchaser of such
alienated property is entitled to sue for partition of the property and specification of his share. If
the partition is effected he can take the exclusive possession of the property. In case, the partition
is not affected and the property is delivered to the purchaser, and he takes the possession, the
other coparceners are entitled to have joint possession with him, or they can file a suit for the
recovery of possession from him.40

While in the State of Madras, U.P., West Bengal, Patna, Madhya Pradesh if the coparceners
alienates his share in Mitakshara coparcenary, alienee gets only an interest to the extent of the
coparcener’s share as it stood at the time of the alienation. He need not ask for general
partition.41 There also seems to be a consensus among judges and textbook writers that the
alienating coparcener retains his status as a coparcener even after alienation and can take the
whole of the remaining property as coparceners.42

40
Dugappa v. Venkataramanya, (1881) ILR 5 Bom 493.
41
M.V.S. Manikayala Rao v. M. Narasimhaswami, AIR 1966 SC 470.
42
See Mulla, Principles of Hindu Law 299 (13th ed., 1966).

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 CONCLUSION

Every coparcener has the right to make the full use of the joint property without retarding it or
using it in such a way that is prejudicial to the interests of other coparceners. However, being the
manager of the family karta should have some privilege in respect of maintaining the whole
business of the family. It is necessary to devolve some powers onto him for the expedient
functioning of the family business. Alienation of property is one such power which is given to
him to be exercised in case of legal necessity and other two grounds. As far as these grounds are
concerned they can be interpreted widely as well as strictly. We have most of the high court’s
judgments on the issue involved. The Supreme Court should also intervene in these matters and
explain the literal meaning of the word legal necessity, benefit of estate and performance of
indispensable duties. The worst situation is with the challenge of unauthorized alienations. The
burden of proof is rest on the person who is a stranger to the transaction.

The author suggests that instead of shifting the burden on the alienee the powers of karta should
be strictly interpreted so that no unlawful means are used. It is because of the fear that the alienee
has to prove everything he may not enter into a contract even when there is a legal necessity.
This will also result in loss to the family. Rights of alienee should be made similar in all the
states by the apex court rulings and not by the individual opinion of every high court. It might be
that karta and alienee are of two different places and their laws are different which may affect the
whole process of alienation. An alienee should not be made liable for everything because that
will discourage others to help the families in need. As far as gifts made by the father to daughter
are concerned he should be able to make such gift and moreover, now the daughters are also the
coparcener of the family as amended in 2005. Two things have to be there accountability as well
as responsibility and neither must exceed. Thus, a lot of checks have been imposed by the courts
on the powers of karta so that it is not misused. Karta works for the welfare of the family. Law
has provided enough safeguards to the family members to be used against any despotic behavior
of the karta.

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BIBLIOGRAPHY

Web Sites:

1. https://indiankanoon.org/doc/1816995/
2. https://www.linkedin.com/pulse/concepts-ancestral-property-joint-family-manish-bhatt
3. https://indiankanoon.org/search/?formInput=joint%20family%20property
4. https://www.google.co.in/webhp?hl=en&sa=X&ved=0ahUKEwiz76PZ7ajTAhWBiLwK
HTeVDP0QPAgD#hl=en&q=MANUPatra
5. http://www.shareyouressays.com/117745/what-are-the-different-classes-of-property-
under-hindu-law
6. http://www.yourarticlelibrary.com/family/main-types-of-joint-family-system-in-india-
1598-words/6127/
7. http://www.yourarticlelibrary.com/society/indian-society/family-indian-society/joint-
family-nature-types-and-characteristics-of-joint-family/39191/

Books:

1. Diwan Paras; Family Law; 7th Ed. Allahabad Law Agency.

2. Mulla; Principles of Hindu Law; 20th Ed. Lexis Nexis Butterworths.
3. Mayne John D; Hindu Law and Usage; 15th Ed. Bharat Law House.
4. Dr. Sharma Basant K; Hindu law; 3rd Ed. Central Law Publication.

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