A study on conditions restraining alienation of property in India

R.Sri monisha 1
J. Lalith Kumar 2

Abstract

This study deals with the rights and remedies that are enjoyed by the alinees of the Hindu joint
family property. Initially it gives us a brief introduction of Hindu joint family and alienation of
the property they own by a common ownership. It covers the mode of alienation in which,
when and how the property can be alienated. It also tells about the persons who are competent
enough to alienate and their rights and remedies. A comparative study is also made between
the Hindu Law and the Transfer of Property act governing such alienation. But the Hindu
coparcenary is a broad body than the joint family. It also includes the persons who has acquired
by birth an interest over the joint or coparcenary property. The essence of coparcenary under
the Mitakshara law is the unity of the ownership. The interest is a fluctuating nature, and
capable of being expanded by deaths in the family and is liable to be diminished by the births
in family. It is only on partition that they become entitled to a definite share. The Joint family
property is purely a creation of Hindu Law, and those who own it are known as coparceners.
The concept of legal guardianship of property takes place by the birth from the very known
fact that minors and the infants are very incapable of managing their own property-related
matters. The ultimate purpose of this kind of guardianship is to make sure that the property of
the minor is dealt in a careful, non-prejudicial and in a beneficial manner till the time they
attain majority. This paper discusses the conception of property and the various facets of
guardianship. It attempts to analyse the concepts of guardianship under various laws, while
also looking into the issues of alienation and partition of the property. This paper analysis the
various provisions of the personal laws and secular legislation in an attempt to determine how
they help safeguard the family property. Personal laws governing Muslims, Parsis and
Christians of India differs and are not covered under the transfer of property act .
Key words: alienation, karta, joint family property, coparcenary and guardianship.

1
Srimonisha , IIIrd year, BBA.LLB, Saveetha School of law, Saveetha University (chocolava997@gmail.com)

2
J. Lalith Kumar, Assistant Professor of Law, Saveetha School of Law, Saveetha Institute of Medical and
Technical Sciences (lalithkumar.ssl@saveetha.com)
Introduction

Alienation refers to transfer of property, anything or property such as gifts, sales and
mortgages. Alienations have a significance in Hindu Law. It also includes disposal of any joint
family property by the Karta or any other coparceners. This can take place by an act of
omissions or voluntary or involuntary intentions. But a karta or a coparcener does not have full
power of alienation over the joint family property or any 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. Thus alienation has a wide scope and recognition in the Hindu
Law.Alienation of any property by a Hindu, is governed by the Mitakshara School or any of
its sub-schools or the Dayabhaga School. It has complete absolute powers over it. Traditionally
it was the Karta or the father who has got complete powers of alienation. But as the days there
was a necessity to introduce more suitable laws for the changing conditions. Thus the Privy
council came up with laws serving the changing situations as well serve equity justice and good
conscience. The Transfer of Property Act governs such alienations by a Hindu. The deprivation
of codified laws to meet the changing face of commercial transactions that takes place in a joint
family have created the dire need of such governing laws. Alienation is more of practical utility
as it gives a way of using the joint family property for the general use of the family and it is a
classic example of the unique position of the Hindu joint family which is used to help the
members in times of need. The situations were very hard where even the jurists haven’t agreed
upon the existing laws. The concept of ownership is not complete without having the right to
alienate the property. But, in a joint family property all of the coparceners have got an equal
right on the property and hence it cannot be alienated without the authorization of all of the
coparceners. Karta is known as the manager of the Hindu family and therefore has got some
unique rights. However, it doesn’t mean that the entire property will be treated as his belonging
and he also owns interest over the property like all other coparceners in the family. Alienation
of property is for the common good of all the family members is an example of joint hindu
families in India . Transfer of property acts as a ground for studying such laws. Whenever karta
does something against the interest of other coparceners it is considered as unauthorised
alienation. The other copaceners have got the right to go to the court for claiming their rights.
In this research we will have a detailed study about the powers of different persons in the family
such as fathers power of alienation, kartas powers of alienation and rights and remedies of
alienees. In this study we will understand the powers of different people in case of alienation.
 OBJECTIVE
 To study the karta s power of alienation
 To understand the practical utility of alienation
 To know the rights and remedies of alienees

RESEARCH METHODOLOGY
The data used in this non-empirical study is the secondary data for analysis and the information
was collected through online articles, journals, government reports and various websites.

LIMITATIONS OF THE STUDY

 The paper is restricted to a secondary means of research, conducted only by means of
internet sources and the books.
 A primary way of research could not be adopted for the same due to the nature of the
topic

Review of literature

Unauthorised alienation of property and its consequences are briefly discussed and highlighted.
The rights over the property changes over the birth and death of the family members. It also
clearly explains the practical difficulties in case of transfer of a property when situations are
very conflicting in nature.- Abhinav Misra (Transfer Act 1982) 12th edn p.366

The gift is considered as alienation provided if it is made out of love and affection and can be
given only to the close blood relations. It should be a very small amount when compared with
the whole amount of the Hindu family property. When the conditions are not fulfilled by the
father then also it is invalid- Hindu Law and edition by Mayne 15th edn p.977

The grounds in which authority is enabled to make decisions regarding alienation of property
is explained. The most discussed topic in the book is Sanskara. There is no much depth about
the powers concerning alienation.- Maddison 824: Syrra 2nd edn p.323
Position of karta is thoroughly discussed. The power of karta to sell the coparcenary property
or mortgage in case of any legal necessity is a well disccused concept in the book. The position
of karta in case of movable property and immovable property is classified.- The Hindu Property
Law – Richit Arora 12th edn.

Alienation under the Dayabagha school

As per the Dayabagha school the absolute powers regarding alienation is given to the father.
This is inclusive of both separate as well as ancestral and for movable and immovable property.
The court held in RamKumar Vs KishenKumar3 the gift of estate byeee father to his younger
son during the lifetime of elder was considered valid though it was immoral or against moral.
This school pin points that father has got the powers to alienate in case of no moral
justifications.

Alienation under the mitakshara school

In this also father is entitled with absolute powers of alienation but the conflict raised in the
case of Rao Balwant Singh vs RaniKishori4 made certain conditions where father can alienate
his property is either by gif or love or for personal debt.

Fathers power of alienation

A father has more absolute power than that of the karta as there are many circumstances in
which only the father has got the right and authority to make alienation. Few cases dealt with
Gifts of love and affection – The father has right to make a gift of some reasonable amount
from the ancestral movable property out of love and affection to any of the family members
even to those who are not entitled to any share at the time of the partition.
Even in the case of coparcener, but the rule in this case is such that the value of any property
gifted out of love and affection must be very small when compared to the entire movable
property. Thus the gift of affection can be made either to the daughter, wife or even the son.In

3
(1812) 2 SD 42 (52)
4
1928) 30 BOMLR 1331
the case of Subbarami Vs Rammamma5 a very important principle was laid down that any such
gifts shall not be made by a will, because as soon as a coparcener dies or passes away, he
loses interest in the family property which he cannot alienate.A good example of such a gift
put forward before the Privy Council in the case of BachoovsMankore6 Bai. In this case a gift
made to the daughter of Rs.2000 was held to be valid as the total value of the property was
around 1 lakh.

Father has the right to alienate family property inorder to pay his personal debts in case if the
debt was antecedent and it shouldn’t be a debt of immoral purposes or Avyavaharik,this was
laid down in Brij Narain vs Mangala Prasad.7This principle had significance in the Mitakshara
texts.

Kartas powers of alienation

No individual coparceners can alienate the Hindu joint family property including karta was the
core principle in the dharmasastra . But the Vijaneshwara has laid three circumstances or
exceptions where kartas has power to alienate the family property. They are as follows:
 Legal Necessity
It basically refers to the acts that are of necessity in the day to day life. The Apatkale a Shastric
condition denotes things are of utmost necessity for survival such as food, water , clothing etc.
It also includes maintenance of the members of joint Hindu family, medical carre expenses for
members, payment of government revenues and government taxes,income tax, payment of
debts incurred and government taxes, income tax, payment of all the debts incurred, marriage
expenses of male coparceners and their (upanyana) . The costs incurred for defence of criminal
charge.
 Partial Necessity
If the necessity is partial i.e, money required to meet necessity is less than the amount of
alienation, such case, sale will be valid only when purchaser acts in good faith.

5
(1920)43 Mad 824

6
1907)34 IA 107

7
(1924) 51 IA 129;supra n. 3 p.318.
  Benefit of estate, In the preservation however of the estate the from extinction the
defence against hostile litigation, protection from injury would be the benefits. Such
legal necessity includes benefit of estate in Palaniappan vs Deivasaikamony.8
 Indispensable Duties
It is a ground in which an authority can make alienation. It also includes rituals to the
performance of Sankaran. 9And other religious duties, Sradha, upanaya, are also some of
the indispensable duties. It was held in case Gangi Reddi Vs Tammi10 Reddi the court held
that portion of family purposes and it can be used for his religious charity. Alienation
should be made by intervivos.11

But, the Karta can alienate the joint family property even though in the absence of legal
necessity or benefit of the estate with the consent of all the coparceners at the time of
alienation.12 Here, there is a difference in the law prevailing in various states in India in case
of alienation. As per the present laws in Bombay and Madras, the shares of the coparceners
will be bound together But, in states like West Bengal and Uttar Pradesh, a coparcener shall
not alienate even his own interest without the consent of the rest of the coparceners and such
alienation without proper consent of all other coparceners will not bind the shares of the
consenting members.

Coparceners powers of alienation

There are two types of alienation they are name voluntary and involuntary alienation.
 Voluntary alienation : It me undivided interests of coparceners and it can be sold in
execution of money. Whenever a transfer takes place voluntarily or a the owner
transfers it voluntarily it is considered illegal. Voluntary alienation also includes things
such as gifts, sale, mortgages. However court held that a coparcener cannot make a gift
of undivided interest in the family property was held in the case Radhakant Lal vs.

8
1917 P.C. 68

9
Supra Note 10
10
(1927)54 IA 136 ;supra n. 2 p. 803.
11
http://www.scribd.com/doc/68527077/Alienation-Under-Hindu-Law.

12
Dr. Para’s Divan, Modern Hindu Law, 22ndEdn. 2013, p.331
 Nazma Begum.13According 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 coparcener. 14 In the case
Alluri Venkatapathi Raju vs. Venkatnarasimha Raju. 15 Renunciation of coparceners
interest will be reduced only to the number of shares that has been allotted.

 Involuntary alienation : It means undivided interest during the executions of the

proceedings. Undivided interest is again is a sale execution during the life of the debtor.
The debtor acquires interest in such kind of property. This is that such rule isn’t
executed against coparcener. But if his interest is attached during coparceners lifetime
then it is valid.

Unauthorised alienation
Unauthorised alienation of property means the transfer of the property without any justification
which leads to invalidation of such transfer. As discussed earlier alienation can be done through
will, gifts or mortgage. 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
presentor future.16

Conditions restraining alienation

The property transferred restraints disposal. And one such condition is void. However there are
exceptions such as lease, benefit of a woman etc. The conditions can be made provided it
doesn’t contravene the provisions of the act.

13
(1918) 20 BOMLR 724.
14
Supra note. 6, p.825.

15
(1936) 38 BOMLR 1238
16
Hari Singh Gour,the hindu code 586 (6th ed., 1996).
Burden of proof

Burden of proof usually lies on the alienation. It is the duty of the karta or the father to prove
if the debts where used to repay. It is upto the alienee to prove. However standard of proof can
be lowered, it is upto the discretion of the court.

Alienees rights and remedies

If the alienation is valid then the alienee will get the property with out any problem. Alienee
gets all the rights of both mortgagee against a mortgager. It was decided in the case Padmanabh
vs Abraham17 if alienation is totally set aside there’s no equity against purchasing amount.

Recommendations

In this study we have analysed thoroughly the powers of different members of the joint family
and their abilities to take decisions in difficult situations. But there are different personal laws
governing different people within India. But there should be a uniform law to govern all the
people. For this we should adopt more laws and from the international bodies for a wider
prospective. The ground of Apatkale has been satisfactorily extended to include along with
situations of emergency and distress, those situations which may seem proper and reasonable
to the court.

17
AIR 1954 SC 177
Conclusion

The new changes that are brought by the case laws by the Privy Councils and the HighCourts
have been tremendously empowering and have given the joint family members the power to
utilise the property for the upliftment. Pioneer among these are firstly the total control a father
now has on over his separate movable and immovable property, from the ancient law which
does not allow the father to dispose off his separate property according as per his wishes.
Secondly the powers given to alienate fathers share in the undivided family property for their
own use with or without the consent of the coparceners. This had given the power to father to
use his share for the purposes which may or may not qualify as a necessity for the entire family
but are very important for him. It also gives him a right to benefit from his share without
severance from the joint family which occurs at the time of partition. Thirdly the ground of
Apatkale has been satisfactorily extended to include along with situations of emergency and
distress, those situations which may seem proper and reasonable to the court. This has gone a
long way in making the law of alienation much more suited to present conditions. Thus in this
study we have under the concept of alienation and different position of power each member
holding regarding alienation.
REFERENCES

(1812) 2 SD 42 (52)

1928) 30 BOMLR 1331

1920)43 Mad 824

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.

1907)34 IA 107 Ankita Paul http//lawoctopus/doc/2776789/alienation powers

(1924) 51 IA 129;supra n. 3 p.318.

1917 P.C. 68

Note 10 transfers Act with references to Hindu law review journal

(1927)54 IA 136 ;supra n. 2 p. 803.

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

Dr. Para’s Divan, Modern Hindu Law, 22ndEdn. 2013, p.331

(1918) 20 BOMLR 724.

Supra note. 6, p.825.

(1936) 38 BOMLR 1238 Alluri Venkatapathi Raju vs. Venkatnarasimha Raju.

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

Books Referred

Transfer of property Act- Ravi Sharma

Transfer of property- Sukklahh