A property transfer (whether movable or immovable), such as a gift, cash, real estate, or mortgage, is known as alienation. Hindu law places a stronger emphasis on alienations because, typically, neither the Karta nor any other coparceners have full authority to alienate the joint family property or his interest in the joint family property. The Hindu Succession Act of 19561 and the Transfer of Property Act of 18822 both regulate the alienation of coparcenary property under Hindu law. And according to them, though the Karta or the head of the family has the duty to look after the regular expenses of the family and also protect the joint family property, he doesn’t have absolute power over alienation. The power of alienation vested upon Karta is similar in both Dayabhaga and Mitakshara law. According to that, Karta can only alienate property under three exceptional circumstances.
On the other hand, the court ruled in the case of Kandasami vs. Somakanda3 that the Karta can alienate the property in the Hindu Undivided Family. All family members must provide their approval in cases of this form of estrangement. The only need is that the coparcener must be the major in accordance with the law to which they are subject. After receiving the coparcener’s approval, the property may be alienated.
Grounds of Alienation
According to Vijnaneshwara, a prominent jurist of twelfth-century India, a property of the Hindu Joint Family can be alienated due to three circumstances-
- Apatkale- It describes a circumstance in which the entire family, or a single member of it, encounters an emergency involving their property. The purpose of this transaction is to combat the threat or make an effort to prevent the catastrophe for which money is required. When it makes reference to the property, it means that the transfer is required for its preservation or protection and that it requires quick action. It should be held that this transaction or alienating is not a mere profitable charity but a way to safeguard properties owned by a joint family.
- Kutumbarthe- “For the benefit of the Kutumb” is what this phrase signifies. Kutumb alludes to members of the family. As a result, this involves the alienation of a property for a family member or relative’s support. For instance, housing, food, clothing, and education. medical costs, etc.
- Dharmarthe- It gives relaxation for the purpose of carrying out charitable, pious, and virtuous obligations. Typically for philanthropic and religious reasons.
But it should be held that this thesis of Vijnaneshwara has gone through modifications and severe changes have been performed in it by the Indian Judiciary. It would be mentioned below.
Father’s Power of Alienation
In some circumstances, only the father has the authority to alienate his child, hence a father has greater power than even Karta. Fathers are given unlimited alienation rights under Dayabhaga Law, meaning they are free to sell off any movable or immovable property they choose, whether it is personal property or family heirlooms. Under Dayabhaga School, sons do not automatically acquire a right to property; hence, a father may alienate the property without the sons’ permission. A landmark judgment regarding this situation was given in Ramkoomar vs. Kishenkunkar4, where the concerned Court ruled that while it was immoral, a father’s gift of his entire estate to his younger son during the elder’s lifetime was permissible but giving away all of the family’s landed property was not permitted.
While it has long been accepted practice, under Mitakshara Law, that the father had complete discretion over the disposition of his distinct movable property. However, there was contention regarding his several immovable properties. But in the case of Rao Balwant Singh v. Rani Kishor5, the Privy Council put an end to the dispute in 1898 by ruling that the father had full alienation authority over his distinct property, both movable and immovable. Later it was held that whether a joint family property or undivided property, the Father can alienate whole property in two cases-
- Gifts of Love and Affection– The Father has absolute power on sending Gifts of Love and Affection (Jewels, Valuable metal ornaments, Clothing, Cash, part of movable property) to his own wife, daughter, son-in-law or any other close relatives.
But it should be noted that Gifts of Love and Affection of immovable property cannot be made to the son. Such gifts can only be made to daughters, as in Guramma v. Malappa6, a gift of immovable property to a daughter made by her father after her marriage was held to be valid.
But sending affectionate tokens through Gifts cannot be done via Will. Because an important concept was established in the case of Subbarami vs. Rammamma7 that such gifts cannot be made by a will because as soon as a coparcener passes away, he loses his stake in the joint property, which he cannot afterwards transfer.
- Alienation for Discharge of His Personal Debts- In order to pay off his prior debts, which the sons are obligated to do religiously because they are not immoral or illegal, the father has the right to alienate the family’s property. If the two criteria below are met, a father may sell off the joint family property to pay off his debts:
- The debt came before.
- The loan should not be incurred for Avyavaharik, or for immoral or unethical reasons.
- Although taken from an ancient Mitakshara text, the two criteria above were also established in the
case of Brij Narain vs. Mangla Prasad8.
Karta’s Power of Alienation
It is a common belief that the karta has a great power inside a Hindu joint family. However, he is not the sole owner of the property when it comes to property concerns, thus he can only use the power of alienation in particular circumstances. The powers of the Karta under Mitakshara Law and the Dayabhaga Law are comparable. Only three situations— Legal Necessity (Apatkale), Partial Necessity, and Benefit of Estate —permit the alienation of the property by karta. Though with the approval of all adult coparceners present at the time of the alienation, the Karta may, however, alienate the joint family property regardless of any necessity for the law or advantage to the estate.
- Legal Necessity- Legal need can refer to any action taken to meet a family’s basic necessities during an emergency such as a flood, war, starvation, etc. In contrast to the word purpose, there should be no other sources available to the Karta in order to exercise this option.
Nevertheless, it has been acknowledged by contemporary law that necessity may go beyond that. In Devulapalli Kameswara Sastri vs. Polavarapu Veeracharlu9, it was decided that necessity should not be considered in the sense of what is absolutely necessary but rather what would be viewed as proper and reasonable in accordance with the ideals of the joined Hindu family like-
- Monthly expenses of all members of the joint family and additional medical bills.
- For payment of various Taxes.
- For paying EMI of debt incurred as a joint Hindu Family.
- Performance of necessary ceremonies, like- Mundan, Bibah, Sradhs, and Upanyana.
- For marriage ceremony of male & female coparceners of family.
- Partial Necessity- According to the Privy Council in the case of Krishandas vs. Nathuram10, a sale will only be valid where the purchaser acts in good faith, conducts due diligence, and is able to demonstrate that the sale itself is justified by legal necessity in cases where the necessity is only partially met, that is when the money needed to meet the necessity is less than the amount raised by alienation.
For Example- If the Karta of a Joint Hindu Family has collected Rs. 50,000/- through alienation and gives proof that he is required of Rs 40,000/- in good faith that falls under necessity, then the alienation will be valid.
- Benefit of Estate- The benefit from the estate is often known as “kutumbarthe”. It has been stated that alienation can be carried out to benefit any other family estate or to satisfy the needs of family property. Alienation under this cause is strictly defensive or protective in nature with the dilution of “apatkale”, alienations that an ordinarily prudent man would consider reasonable in the specific set of circumstances are also permitted. The alienations made by the karta for the benefit of the estate are legal and hence not void. This concept was not mentioned in any ancient textbook and was first introduced in the case of Palaniappa vs. Deivasikamony11.
Coparcener’s Power of Alienation
A coparcener has the authority to give up his ownership interest in joint family assets. A coparcener may give his complete undivided interest to another coparcener or coparceners, with or without their approval, or they may renounce it in their mutual interest. Either way, the gift is lawful. Renunciation that includes a requirement to give him maintenance is legal. However, a gift or renunciation of one coparcener’s share in favor of another coparcener or coparceners is invalid. And a coparcener is not allowed to sell or mortgage his undivided interest without the consent of other coparceners of the Joint Family. Even they don’t have the right to gift a part of their undivided interest to their special ones to show a token of affection.
Sole Surviving Coparcener’s Power of Alienation
As long as the lone surviving coparcener does not have an heir, the joint family property becomes separate property when it is transferred into his possession. His only obligation is to provide for the family’s female members (the widows). In that case, he can alienate his interest from the total property. So long as the widow’s part is excluded, he may alienate the other property as his own. However, if another coparcener is present in the wombat at the moment of the estrangement, this is not applicable. However, if the son was born after the transaction, he could not contest the alienation. If a widow adopts a child after her husband’s death, that child will also have the right to challenge the alienation made by the sole surviving coparcener according to the landmark judgment of Bombay High Court in the case of Bhimji vs. Hanumant Rao12.
Unauthorized Alienation of Property & Burden of Proof
Unauthorized alienation of property refers to the transfer of property without authorization, which makes the transfer invalid. Alienation of property can be developed through will, gifts, or a mortgage, as was previously discussed. Karta works for the welfare of the family since, as we all know, he is the manager of Hindu families. Alienation is described as “any disposal of a portion or the entirety of the joint family property by the father, karta, coparcener, or the sole surviving coparcener by any act or omission, voluntary or involuntary”.
According to the case of Hanoomaprasad vs. Babooee13 burden of proof is on the alienee. He has to prove in the court that the alienation made by him was in good faith and it was regulated through either Legal/Partial Necessity or Benefit of Estate. Any unauthorized alienation made by the sole coparcener, Karta or Father is voidable under Hindu Succession Act.
Coparcener’s Right to Challenge such Alienation
If the father, karta, coparcener, or the only remaining coparcener acts outside of their authority and alienates joint property, that alienation can be contested and overturned before it expires. In accordance with Article 126 of the Indian Limitation Act, 1908, a son has 12 years to contest his father’s alienation, and in accordance with Article 144, coparceners have 6 years to contest the alienation caused by karta. Any other coparcener with a stake in the property, from the time he learns of it until the lawsuit is prohibited by time limits, may contest and set aside the alienation if the father, Karta, coparcener, or single surviving coparcener overstepped their authority in making it.
Alienee’s Right & Remedies
The courts have applied various interpretations to Alienee’s right to divide. However, the existence of this privilege is firmly established. The purchaser cannot seek the exact property that was sold to him, according to the Bombay and Madras High Courts. He is limited to requesting the general division of his alienor’s interest. And from the date of purchase until the day that the partition is ruled upon, Alienee is not entitled to any portion of the earnings. The Supreme Court ruled that a person who purchases a coparcener’s share at auction in order to enforce a monetary judgment against him is not entitled to future profits as of the purchase date. In the event that the partition is unaffected, and the property is transferred to the buyer, who then takes possession, the other co-owners have the right to co-own the property with him or to sue him to regain ownership.
From the explanation above, it is clear that a family’s most important and indispensable component is its property. If Karta alienated that property without the other coparcener’s approval, it would frequently result in conflict and inconvenience for the family as a whole. The Karta, who represents the entire family and occupies the Supreme position in the Hindu Undivided Family, is the only manager of the family and serves as its exclusive representative.
Each coparcener is entitled to use the joint property to the fullest extent possible without hindering it or using it in a way that is harmful to the interests of other coparceners. The family business manager, however, should have some privileges in regard to sustaining the entire family business. For the family business to run well, it is vital to devolve some control to him.
- Hindu Succession Act, 1956, Sec. 6, Act no. 30 of 1956
- Transfer of Property Act, 1882, Act no. 4 of 1882
- Kandasami Asari vs Somaskanta Ela Nidhi Limited, (1910) 20 MLJ 371
- (1812) 2 SD 42 (52)
- (1928) 30 BOMLR 1331
- 1964 AIR 510, 1964 SCR (4) 497
- (1920)43 Mad 824
- (1924) 26 BOMLR 500
- (1911) ILR 34 Mad 422
- 1927 P.C. 37
- 1917 P.C. 68.
- AIR 1950 Boom. 271
- Supra Note 10
This article is authored by Dibyojit Mukherjee, a student of Institute of Law, Nirma University