In this article, we will discuss the concept of alienation of Joint Family Property. We will study who may alienate such property, who may challenge such alienation, and the rights and remedies available to the alienee. Further, we will see some important cases and the current scenario of the subject.
Introduction
Hindu Law refers to one of the personal law systems of India along with similar systems for Muslims, Sikhs, Parsis, and Christians and it regulates the social conditions of members of the Hindu religion. Hindu Law holds many attributes which help family institutions, and the joint family system in regulating itself.
The joint family system comprises many members, each individual in the family owns their different property rights. Even if, individuality exists in the joint family, the cohesive structure of the family comes into the picture concerning the decisions which are required to be taken by the family as a single unit in various legal and social matters.
In such circumstances, it becomes exigent that there be someone who directs these affairs of the family and has decision-making power in the matters of family. As a Hindu joint family composed of all persons lineally descended from a common ancestor and also includes their wives and unmarried daughter. However, on the other hand, the Hindu coparcenary is a narrower body than that of the Hindu joint family. Hindu coparcenary includes only those persons/members who acquire by birth an interest in the joint or coparcenary property of the family.
A joint Hindu family is purely the creation of Hindu law and all members have unity of interest and community of purpose in the joint property of the family. Property has been a tangled issue amongst the family members which leads to conflict in the social construct of society. As ownership of property is incomplete without having the right to alienate that property. The right to alienate the property is the incident of property that cannot be comprised.
History
Father’s power of alienation
Under Dayabhaga School, the 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, the father doesn’t need the consent of his sons for alienation.
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 the father’s power of alienation over his separate immovable properties.
Karta’s power of alienation
According to Vijnaneshwara, under 3 exceptional circumstances, the alienation of the joint family property by an individual is possible:
- Apatkale, i.e. during distress;
- Kutumbarthe, i.e. for the sake of the family;
- Dharmarthe, i.e. for disposing of indispensable duties.
Explanation with Statutes
Alienation refers to the transfer of property. For eg: sales, gifts, mortgages, etc. Property alienations have an added importance in Hindu law, as, usually neither the Karta nor any other Copercaner has the absolute full power of alienation over the joint family property or his interest in such property. However, under the Dayabhaga school, a Coparcener has the alienation right over his right in the alienation property.
The property of a joint family does not cease to be joint family property belonging to any such family merely because the family is represented by a single male member who possesses rights that an absolute owner of a property may possess. It may even consist of two females members. There must be at least two members to constitute a Joint Hindu family. A single male or female cannot make a Hindu joint family even if the assets are purely ancestral.
The alienations related to the joint family property under Hindu law are governed by the Hindu Succession Act, 1956, and the Transfer of Property Act, 1882.
In this article, Alienation has been discussed under the following heads:
Father’s power of alienation
According to the Joint or Undivided property, it has been held that the father can alienate joint family property only in the following two cases:
Gift of Love and Affection
The father has the 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 wife, son-in-law, daughter, etc.
Two gifts are necessary for the validity of such gifts:
- It should be a gift of love and affection, i.e., the father should stand in some relationship of affection to the donee.
- The gift should be of a small portion of movable joint family property.
Gifts of Immovable Property
Such gifts cannot be made of immovable property, though in Guramma v. Malappa[v], a gift of immovable property to a daughter made by her 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 a joint family. Supreme Court has confined this rule of gifts of immovable property to daughter only.
Alienation For Discharge Of His 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 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
Usually, an individual Coparcener, including the Karta, cannot dispose of the joint family property without obtaining the consent of all other Coparceners. However, according to the Dharmashastra, any family member is empowered to alienate the joint family property.
However, with the advent of time, Vijnaneshwara’s formulation has undergone modification in two aspects. Firstly, the alienation power is not exercisable by any other family member, except the Karta. Secondly, the joint family property can be alienated for the following 3 purposes:
- Legal necessity;
- Benefitting the estate;
- Acts involving indispensable duty.
Coparcener’s power of alienation
Coparcener’s power of alienation is divided into two heads-
- Involuntary Alienation.
- Voluntary Alienation.
Involuntary Alienation
Involuntary Alienation means the Alienation of the undivided interest in execution proceedings. In 1873, the Privy Council 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. 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 a 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 it, he should also be permitted to do it himself, and somehow the principle was extended to voluntary alienations.
Voluntary Alienation may be made in the following forms:
Gifts- It is a well-settled law that the gift by a coparcener in the 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.
Sale and Mortgage- According to Bombay, Madras, and Madhya Pradesh High Courts, a coparcener has the power to sell a mortgage or otherwise alienate his undivided interest without the consent of other coparceners.
Renunciation- A coparcener has the power to renounce his share in the joint family property. A gift by a coparcener of his entire undivided interest in favor of other coparceners or coparceners will be valid whether it is regarded as one made with the consent of one or others or as renunciation in favor 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 favor of his one of several coparceners is not valid.
Sole surviving coparcener’s power of alienation
When all the Coparceners die except one, such a coparcener is regarded as the sole surviving Coparcener. When the joint family property passes into the hands of such Coparcener, it turns into separate property, provided that such Coparcener is sonless.
Now based on various judicial decisions there are 3 views about the power of the sole surviving Coparcener in alienating a property of the Hindu joint family:
- A sole surviving Coparcener is fully entitled to alienate the joint family property. However, if at the time of such alienation, another Coparcener is present in the womb, then such coparcener can challenge the alienation or ratify it after attaining the age of majority.
- The sole surviving Coparcener’s power of alienation is unaffected by any subsequent adoption of a son by the widow of another Coparcener. However, the Mysore High Court holds a contrary view in this regard.
- The sole surviving Coparcener cannot alienate the interest of any female where such interest has been vested in her section6 of the Hindu Succession Act, 1956.
Aileen’s rights and remedies
- Right of joint possession
The purchaser of an undivided interest of a coparcener in a specific property does not acquire a right to joint possession with the other coparcener. He is only entitled to compel partition of such property. According to Mitakshara School in case the purchaser is a stranger and is not in possession of the property he is not entitled to the joint possession of the property with other coparceners and his proper remedy is partition. If such a person has obtained possession the non-alienating coparceners are entitled to have joint possession with him.
- Right to mesne profits
The buyer of the interest of a coparcener must be granted mesne (past) profits between the date of the sale and the date of the suit for partition by the members who own such property.
- Right to share on partition
The share to which a buyer is entitled on the partition is the share to which the alienee was
entitled at the date of alienation and not at the date when the alienee seeks to reduce his interest into possession.
- Right to sue for the partition after vendors death
The alienee’s right to partition is not lost due to the death of the coparcener. He is entitled to
claim property from legal representatives of the coparcener.
- Right to sue for specific performance
If before the completion of the sale the coparcener who has sold his interest dies, the purchaser is entitled to suit for specific performance of the agreement for sale.
Landmark Cases
Kandasami v. Samakanda (1910) 20 MLJ 371
In this case, it was observed that Karta can alienate the joint family property, after obtaining the concept of the other Coparceners, even in the absence of legal necessity, the benefit of the estate, or acts involving indispensable obligation. Provided that the consenting Coparceners are adults.
Manohar v. Dewan AIR 1985 P H 313
The father of the appellants, Dewan Chand sold off land for Rs. 8000/-. The appellants filed a suit for joint possession over the said land, alleging that they constituted a joint Hindu family with their father, that the land sold was a coparcenary property, and that the sale was executed without any consideration and legal necessity. The suit was contested by the vendors who opposed all the allegations and further pleaded that the sale having been made for the benefit of the family, and being an act of good management was, therefore, binding on the plaintiffs.
The Trial Court after recording evidence of the parties negatived the plea that the property was coparcenary property and further held that the sale was executed in exchange for consideration and legal necessity and as an act of good management dismissed the suit. Its findings were affirmed on appeal which led to the filing of this second appeal by the plaintiffs. Here it was held that any alienation lacking the consent of Coparceners and also for any purpose excluding legal necessity shall be void ab initio.
Rani v. Shanta 1971 AIR 1028
Here disputes arose regarding the sale of part of joint family property. It was contended by the plaintiffs that the said property was sold by their mother without any legal necessity and undue influence. Here, the Trial Court ruled against the Plaintiffs so they appealed before the High Court of Kolkata.
The High Court ruled in favor of the plaintiffs, to which the defendants filed an appeal before the Supreme Court. The Supreme Court observed that It is now established that ‘necessity is not to be appreciated in the sense of what is indispensable but what by the notions of a Hindu family, would be regarded as proper and reasonable.
Jagatnarain v. Mathuradas AIR 1928 All 454
The question before the court in the case was regarding the meaning and implications of the term “benefit of the estate” as asserted for the reason of alienation of joint family property.
The Allahabad High Court ruled that anything done for improving the property shall be deemed as a benefit of the estate.
Gangi v. Tammu (1927) 29 BOMLR 856
A person had two sons, one of who had predeceased him, leaving only one son, the present plaintiff. The younger son and his son were the present defendants. There were also several daughters. That person had made 3 wills before his death asserting that the properties were self-acquired. However, such properties were later found to be ancestral and thus could not be disposed of through will.
The Privy Council, in this case, held that dedication of a portion of the joint family property for religious charity may validly be made by the Karta, if the property allotted is small compared to the absolute means of the family. Such alienation cannot be made through a will.
Conclusion
From the above article, it is apparent that the coparcenary relationship exists in a Hindu joint family, starting from the senior-most male member up to the four degrees. Such senior-most male member is deemed as the Karta of the joint family and has the power to alienate the joint family property with the consent of all other Coparceners.
However, such alienations can only be done in scenarios involving legal necessity, the benefit of the estate, and performing indispensable obligations such as religious or pious activities. Apart from the Karta; the father, a Coparcener, or the sole surviving Coparcener is capable of transferring a joint family property with the consent of other Coparceners or by self, as the case may be.
However, it is advisable that to deal with lesser complexities it is always better that people hold on to their property and partition the shares for their descendants.
FAQs
Can a joint family property be alienated?
Although no individual coparcener has any power to dispose of the joint family property without the consent of all others. In certain circumstances, any member of the family has the power to alienate the joint family property.
What is the alienation of property?
Alienation refers to the process of a property owner voluntarily giving or selling the title of their property to another party. When the property is considered alienable, that means the property can be sold or transferred to another party without restrictions.
What is the alienation of coparcenary property?
Alienation of coparcenary property is an inherent element of the Hindu law and mere precisely The Hindu Succession Act, 1956. All the transfers of the intestate of the assets after the death of the male ancestor is a Hindu Joint Family, as governed and guided by the rule of the coparcenary.
How can one alienate a joint family property through voluntary alienation?
One can alienate a joint family property through
- gift,
- sale and mortgage,
- renunciation.
When can Karta alienate the joint family property?
Karta can alienate the joint family property in case of:
- legal necessity
- benefitting the estate
- acts involving indispensable duty