Introduction :
Alianate a joint family property in the form of gifts, sales and mortgages is considered as alienation. In Mitakshara school karta or any other coparceners singly not possesses right to alianate either joint family property or his share in such joint family property. In Dayabhaga school a coparcener has the right to alienation, but such right will may depend on nature of property and also assend of other coparceners. Any agreement prior to alienation which imposes conditions on alienation should be prevailed. Now we will discuss various persons right to alienation and alienee’s right and remedies :
Father’s right to alienation :
According to a text in the Mitakshara, I, i, 27 which says that father has power of alienation over his sons and the rest, regarding his immovable property. But Privy Council in Rao Balwant Singh v. Rani Kishori, (898) 25 I.A. 54 held that the father is bestowed with full power of alienation over his separated movable and immovable property.
In Dayabhaga school father has power of alienation to all and over all of his property.
Now father has two types of rights to alienation one is making ‘gift of love and affection’. Another right to alienation which can be exercised by the father when he wants to discharge his personal debts.
Gift of love and affection :
The father has right to gift a small portion of his movable joint family property out of love and affection to any person of near relation on whom the father could have love and affection. We can refer here two famous cases firstly Tejnanth v. Commissioner of Gift Tax, 1972 1 I.T.R. 452; and secondly Gurusamy v. Jhyawraman 1996 Mad . 212.
Although out of love and affection the father has no right to gift any immovable property but in Guramma v. Mallappa 1964 S.C. 510 it was held that a gift of immovable property is valid which was given by the father to his daughter after her marriage. The Supreme Court recognised such gifts as a daughter’s share in partition which was included in ancient law. The Supreme Court in Ammathayee v. Kumaresan 1967 S.C. 569 held that only gifts to daughter will be valid regarding immovable property, but no-one else can be given such gifts.
Karta’s right to alienation :
In ordinary course no coparcener has right to alienate his property without the consent of others, but under Mitakshara school Vijnaneshwara specifies three exceptional situation where karta has right to alienate joint family property, these are as follows :
(i) Apatkale, in hard times.
(ii) Kutumbarthe , which generally means for the interest of the family but Vijnaneshwara means here for the purpose of maintenance of the family.
(iii) Dharmarthe, for carrying out necessary duties.
In the above mentioned conditions Vijnaneshwara bestowed this right on every member of the family. But it is now modified in two aspects : Firstly the right to alienation can be exercised by Karta only. Secondly, alienation of a joint family property can be done for the following three purposes only :
(a) Legal necessity ( this appends both apatkale and Kutumbarthe),
(b) Benefit of estate ( this also appends Kutumbarthe), and
(c) Act of indispensable duty ( this appends Dharmarthe).
Now a days Karta of a joint family can alienate joint family property only with the consent of the coparceners without the above mentioned reasons. It has held in Kandasami v. Somaksnda, (1912) 35 Mad 177 that alienation of Karta will be bind on joint family, if all the coparceners are adult. According to Bombay and Madras school coparceners those who agreed upon alienation also binding to that. But it was held in Gangabai v. Vamanaji (1864) 2 Bom. H.C.R 301 and in Miller v. Ranganath (1886 ) 12. Cal 389 that if all coparceners not give consent in alienation then it will not be valid.
Legal Necessity :
Following the famous judgement in the case of Rulla v. Jagdish 1973 P & H 335 we can divide legal necessity in following division : (a) food, shelter and clothing for the family members.(b) marriage of the family members and daughter to whom special duties lies upon, (c) medical care of the family members (d) defence of a member involved in criminal charges, (e)for debt related payment and decretal amount if any. (f) for government due such as income tax, land revenue etc. (g) for carrying out of necessary ceremonies like sradha, upanayana etc. (h) for the payment of rent (i) for construction of habitable house of permanent nature, (j) for purchase of agricultural equipments if such family is earning their livelihood from agriculture.
Benefit of estate :
Privy Council’s observation in Palaniappa v. Devsikmony (1917 P.C. 68) is – ” The preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or its portions from injury or deterioration by inundation, these and such like things would obviously be benefits” – Dr. Paras Diwan , Modern Hindu Law. Followed by this decision various High Courts express different opinions. According to earlier view of Allahabad High Court, only alienation which made to defend the estate from any harm or damage will be considered as a benefit of estate. But in Jagatnarain v. Mathuradas [1929 All. 454 (F.B)] Allahabad High Court Full Bench judgement is anything can be considered as benefit of the estate if it brings a positive improvement. In sengoda v. Muttuvellappa (1955 Mad 531) Madras High Court observed that “Karta can’t convert family property into money because the property does not yield any income without replacing it with some more advantageous property.” – Dr. Paras Diwan, Modern Hindu Law.
Indispensable duties :
Indispensable duties includes carrying out of acts which are religious, pious or charitable. According to Vijnaneshwara obsequies of father and similar things are example of dharmarthe. Which means sradha, upanayana and carrying out of other necessary samskars are also indispensable duties. Besides this gift of a small part from joint family property can be made for religious use like idol of family or to an idol in a temple for public- held in Audyappa v. Mutholokhmi 1925 Mad 1281.
Coparcener’s Power of Alienation :
The right of coparcener’s alienation is the outcome of various verdict of Court, which says that execution of personal money decree against a person’s undivided joint family property is lawful. Such types of alienation can be divided into two categories these are :
(a) Involuntary alienation, and
(b) voluntary alienation.
Involuntary alienation :
Such types of alienation includes alienation of undivided interest in execution. The Hindu sages laid utmost importance on payment of debts. The court took this principle of Hindu law and held – ” execution of personal money decree against a person’s undivided joint family property is lawful. ” In 1873, Privy Council held that if a person purchase a undivided property due to execution of a decree, during the life-time of the debtor then such purchaser also have right to partition.
But such a decree can not be executed against the joint property of the coparcener after his death. But in Samughan v. Hagaswami, (1947) 2 M.L.J. 550 it has been held that if share of a judgement-debtor coparcener has been attached during his lifetime, execution sale can be done after his death.
Voluntary alienation :
If a coparcener can be forced to alienate his share in a joint property then he also has right to do so voluntarily this principle emerge the concept of voluntary alienation. There are certain form of alienation which can be made voluntarily. These are as follows :
Gifts – It has been held in Babu v. Timma, (1884) 7 Mad. 357 (FB) that under Mitakshara school and its sub-school alienation of share in joint family property by gift is not permitted. Latter in Bujbawan Singh v. Shayama, 1964 Pat. 301 it has been held that “he can make a gift inter vivos with the consent of other coparceners provided it is in favour of all coparceners.”- Dr. Paras Diwan, Modern Hindu Law. According to section 30 of The Hindu Succession Act, 1956, a coparcener may dispose of his undivided interest by will.
Sale and mortgage – As per Bombay, Madras and Madhya Pradesh High Court a coparcener has right to sell and mortgage his share in the joint property without the consent of others. But in all other places under Mitakshara school coparcener does not have the right to alienate his joint property by sale or mortgage without the consent of others.
Renunciation – A coparcener can renounce his undivided interest, for which consent of other coparceners not needed. In Raghuban Narain v. State of U P., 1972 S.C. 2096 it has been held that it is not affect in general partition. To be a valid renunciation it must be for the interest of all coparceners. In Krishan v. Board of Revenue, 1972 Raj. 171 it has been held that if after renouncement such coparcener continue as a member of joint family, his sons, both who born before renunciation and after renunciation, can’t be deprived of their father’s undivided interest in the joint family property. It has held in Sarathambal v. Suralam 1981 Mad. 59 that if it is impossible by a coparcener to remain as member of such joint family of which undivided interest he has renounced, then his after born son not does not has any right in such property.
For renunciation execution of deed or any other procedure is not needed, as it is not a transfer of property.
In Bindamati v. Narbada, 1977 S.C. 394 it was held that undivided interest of a widow can also be renounced which she gets in inheritance from her husband.
Sole Surviving Coparcener Right Of Alienation :
A sole surviving coparcener has full right to alienate his undivided interest in joint family property, but such alienation is not beyond challenge after birth of another coparcener who is in the womb at present.
The power of alienation of a sole surviving coparcener will not affected if a coparcener’s widow subsequently adopt a son – held in Ram v. Balaji, 1955 Bombay. 291 (F.B.).
Any interest of any female vested in her by virtue of section 6 of The Hindu Succession Act can’t be alienated by the sole surviving coparcener- held in Shankaramma v. Madappa. 1977 Kant. 188.
Conclusion :
Alienation is very useful right which affects social and economic condition of any family and individual. The joint nature of any property is basically of two kinds – (1) in which separately living is possible and (2) in which there is common places and facilities. In second category regulation on alienation is desired by people very naturally, but concept of estate is very wide by which it can be understood that inclusion of a new person may affect the existing coparcener economically and that’s why alienation in first category property is also regulated by legislation. Besides this in joint property or estate pre-emption right is also lies between share holders which is also because of financial interest of existing share holders.
References :
Dr. Paras Diwan, Modern Hindu Law ( ALLAHABAD LAW AGENCY, 2023 ).
Dr. S.R.Myneni, Hindu Law (ASIA LAW HOUSE, 2021).
Sir Dinshaw Fardunji Mulla,Satyajeet A Deshai, Hindu Law ( LEXIS NEXIS, 2020 ).