Alienation of Property

Family Law- II
Alienation Of Property
Submitted by:
Mansi Maurya
Class: B.Com. LL.B. (Hons.)
6th Semester 3rd Year
Of
Faculty of Law
Dr. Shakuntala Misra National Rehabilitation University
Lucknow
In
March, 2019
Under the guidance of
Mukesh Gautam
Faculty of Law

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ACKNOWLEDGEMENT
I would firstly like to thank Mukesh Gautam in assigning me this topic,
researching on which was a challenging but nevertheless interesting experience.
It enabled me to analyze and understand this concept from several dimensions
and angles. At every step in this research his guidance played a pivotal role.

I would also like to thank my friend and colleague for providing me with
various useful inputs that helped me in the making of this project.

Lastly, I would like to thank my parents, family and friends whose enthusiastic
support and confidence in my abilities helped me in the making of this project.

MANSI MAURYA.

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TABLE OF CONTENT

1. Introduction................................................................................................................4

2. Father’s power of alienation.....................................................................................4-5

3. Karta’s power of alienation......................................................................................5-6

4. Coparcener’s power of alienation............................................................................6-7

5. Sole surviving coparcener’s power of alienation........................................................8

6. Conclusion..................................................................................................................9

7. Bibliography..............................................................................................................10

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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.

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

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.

In the case of Rao Balwant Singh vs. Rani Kishori1, Privy Council held that father had full
power of alienation over his separate property, both movable and immovable.

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

1
(1928) 30 BOMLR 1331

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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 gifts are necessary for that validity of such gifts:

 It should be a gift of love and affection, i.e., father should stand in some relationship
of affection to donee.
 The gift should be of a small portion of movable joint family property.
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-
 The debt is antecedent.
 The debt should not be Avyavaharik i.e. for unethical or immoral purposes.

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

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.

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 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. The Privy Council has elaborately illustrated as to what are the incidents of benefit
to estate in Palaniappa v. Devsikmony2, it laid down that “the preservation,” however, of
the estate from extinction, the defence 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’.
 Acts of indispensable duty (this includes the entire head of Dharamarthe.)

The term indispensable duty implies performance of those acts which are religious, pious
or charitable, this expression includes indispensible duties such as sradha, upanayanama,
and performance of other necessary sanskars.

COPARCENER’S POWER OF ALIENATION

The subject may be divided under two heads:

 Involuntary Alienation.

Involuntary Alienation means the Alienation of the undivided interest in execution

proceedings. The court held that 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.3

 Voluntary Alienation.

When the owner of property transfers it willingly, it is voluntary alienation. Voluntary

Alienation may be made in following forms:

2
1917 P.C. 68.
3
Deen Dayal v. Jagdeep, (1987) 4 IA 247

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1. 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.4

2. 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.5

3. 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.

4
Varsha Gupta, Unauthorised alienation of property and its consequences, ipleaders (29th March, 2019)
https://blog.ipleaders.in/alienation-of-property/
5
Dr. Para’s Divan, Modern Hindu Law, 11th Edn. 2013, p.420

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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, with the only
duty on him being that of maintenance of the female members (the widows) of the family.
The Mysore High Court in the case of Mahadevappavs. Chandabasappa6 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 Rao7, 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.
We may summarize the position, thus:
1. A sole surviving coparcener has full right of alienation of the joint family property,
but if at the time of alienation, another coparcener is in the womb, on his birth, he can
challenge such as alienator.
2. The sole surviving coparcener’s power of alienation in not affected by a subsequent
adoption of a son by a coparcener widow.
3. The sole surviving coparcener cannot alienate the interest of any female vested in her
by virtue of the operation of sec. 8, Hindu Succession Act.
4. He can also alienate the property by will.8

6
AIR 1965 My. 15
7
AIR 1950 Boom. 271
8
Dr. Para’s Divan, Modern Hindu Law, 11th Edn. 2013, p.422

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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.

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Bibliography
Primary sources:

Books

Dr. Paras Diwan, Family Law, 11th Edition

Statutes

Hindu Succession Act, 1956

Secondary Sources:

https://blog.ipleaders.in/alienation-of-property/

https://www.lawctopus.com/academike/alienation-of-property/#_ednref10

http://www.lawteacher.net/property-trusts/essays/hindu-law-and-the-transfer-of-property-act-
law-essays.php

http://www.lawyersclubindia.com/articles/Concept-of-Karta-in-Joint-Hindu-Family-
4678.asp#.Ux4svz-SySo.

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