INTRODUCTION
Under Hindu law, the transfer of coparcenary property is governed by the Transfer of Property Act, of 1882 and the Hindu Succession Act of 1956. According to Hindu mythology, male successors were coparceners of uninterrupted joint family property; however, the Hindu Succession (Amendment) Act in the year 2005 allows the daughter of a coparcener to succeed the coparcener of property in their own right and the same way as a son.
ALIENATION
Alienation refers to property transfer, including presents, sales, and mortgages. Alienations are especially important in Hindu law because, in most cases, neither a Karta nor another coparcener has full authority for alienation in the common property of the family or their share in the joint family members property; however, as per the Dayabhaga School, the coparcener has the authority to alienate his mortgage interest in the jointly owned property of the family. Per the Dayabhaga schools of thought, male heirs do not have any right to ancestral wealth after the ancestor’s death.
The primary distinction of the authority is the fact it was usually granted simply to the father or as the Karta. Yet, the power in itself is arbitrary in that it permits them to sell, present, or mortgage the entire joint property of the family without the approval of any coparcener; that is why ancient writings provided several conditions that only justified such acts by the manager. Alienation is of huge practical importance because it provides the means of using the jointly owned property for the common enjoyment of the family. It is an iconic instance of the special status of the Hindu joint family, which remains prepared to support all of its members within periods of requirement and share resources for the common benefit.[1]
WHO CAN ALIENATE COPARCENARY PROPERTY?
The following individuals have the authority to alienate or transfer coparcenary property:
FATHER’S AUTHORITY OVER ALIENATION
Dayabhaga’s father exercised complete alienation power over all mobile and immovable goods, whether self-acquired or inherited. However, it is now established law that Mitakshara’s father has no more control over joint family mobile property than jointly family property that is immovable. The only power that the father has retained is the ability to give gifts of affection and love. Another authority granted by court decisions is the ability to alienate joint family property to discharge personal obligations.
InRamkoomar v. Kishenkunkar[2], the Sudder Courts held that a father’s gift of his entire wealth to a younger son during the elder’s lifetime was permissible, if unethical; still, the gift of all inherited landed property was forbidden.
In Rao Balwant Singh v. Rani Kishori[3], in 1898, the Court of Privy Council ruled that the father had full authority to alienate his different property, whether moveable or immovable.
In the matter of Subbarami v.Rammamma[4], a key principle was established that gifts should not be made through a will because when a coparcener passes away, he loses his share in the jointly owned property, which he cannot later alienate.
InGuramma v.Malllappa[5], the father’s gift of immovable assets to his daughter after marriage was considered legal. Such presents are only valid when presented to daughters.
KARTA’S POWER TO ALIENATE
Karta frequently represents the most senior male member of a family and holds significant importance in a Hindu Undivided Family. They have complete authority over their family’s activities and properties, including administration, representation, economics, and property alienation. Normally, the Karta cannot perform it except under the following conditions:
- In the event of a legal requirement
- For the estate benefit.
- As a form of essential obligation.
In Kandasami v. Somakanda[6], it was determined that Karta might alienate common family property with the coparceners’ approval even if no exceptional circumstances existed.
The Karta is the family’s single spokesperson and decision-maker, in charge of its economic and property management. Even though they are not the property owners, they serve as managers to ensure that the entire family benefits.[7] The Karta has the power to alienate property in the following circumstances:
- With the approval of all family members.
- Without the approval of the family members
If a specific agreement is not provided, the Hindu unbroken Families Karta must sell the property to maximize the family’s benefit. Also, the Karta must confirm if the property’s alienation is logical and legitimate. If any family members do not agree, the Karta can request judicial approval for property alienation.
In Manohar v. Dewan[8], it was ruled that an alienation lacking the approval of the coparceners and not for legal reasons is void.
In Devulapalli Kameswara Sastri v. Polavarapu Veeracharlu,[9] it was ruled that necessity should not be considered in the manner of what is essential, but rather in terms of what the joint Hindu family would consider proper and reasonable.
COPARCENER’S POWER FOR ALIENATION
The Mitakshara School forbade coparceners from alienating individuals. The law governing the coparcener’s authority to alienation results from court decisions.
We can divide this subject into two groups:
- Involuntary Alienation – This is the alienation of a complete stake in executing cases. The Hindu scholars underlined the importance of paying debts. The courts took on this Hindu legal idea and began enforcing it on individual cash decrees against the judgment debtors of Coparcener’s joint family property. [10]
In Deen Dayal v. Het Narain Singh[11], the Court of Privy Council established the law for all schools of Hindu law by holding that the buyer of complete financing at an unlawful sale throughout the entire life of his different loans gains his share in this property alongside the power to evaluate and returning it through partition.
- Voluntary alienation – After accepting that a Coparcener’s undivided interest is connected and useful during the performance of a decree of cash over him, the next step is to apply the rule to voluntary alienations also.
In Alluri Venkatapathi Raju’s v. Venkatnarasimha Raju[12], the Court of Privy Council ruled that a coparcener’s rejection of his interest simply eliminates his stake in the joint property and has no impact other than to reduce the number of people whose contributions shall be allotted if and when the estate is divided.
POWER OF THE SOLE SURVIVING COPARCENER
When all Coparceners die but one, that Coparcener becomes the only living Coparcener. When joint family property moves into the control of a Coparcener, it becomes independent property, providing the Coparcener is sonless.
The solely living coparcener has complete control over the property, which can be sold, mortgaged, or gifted as he sees appropriate. However, the requirement must exist at the point of such alienation, no other member has a common stake in the family’s property.
A child born later or adopted cannot contest such alienation. However, if another person develops and is in his mother’s womb at the moment of alienation, the only living coparcener lacks the right of alienation, and the member at birth may dispute such alienation or ratify it when he reaches majority.
In the matter of Mahadevappa v. Chandabasappa[13], the Mysore High Court ruled that such a child has the right to dispute an alienation imposed by the single surviving coparcener since he has an interest in the joint family property.
Coparcener’s Right to Challenge the Alienation
Alienation can be opposed when the father, Karta, coparcener, or the only surviving coparcener misuses their power. It may be challenged as soon as an individual entitled to do so becomes aware of it and is not prevented by restriction.
When alienation is challenged, the liability is on the alienee to demonstrate that it was for a lawful reason. When sons challenge the father’s alienation for fulfilling his dues, demonstrate that the loans were acquired by the father; however, when the sons claim that the loan was corrupted (thus accepting that the father performed to take the debts), the burden of evidence is placed on the sons.[14]
CONCLUSION
Based on the findings of the earlier research, a coparcenary connection within a Hindu joint family begins with the oldest male member and continues through four lineal successors. As a result, the eldest male member becomes a Karta of the combined family and has the authority to alienate or distribute jointly owned property with the permission of the other Coparceners. However, such alienations are only allowed in cases of legal need, property advantage, or the performance of important tasks like religious or pious activity.
Author(s) Name : Rishabh Krishan (Amity University Jharkhand)
Reference(s):
[1] Ria Jain ‘Alienation of Property’ (Family Law, 13 November 2015) <https://www.lawctopus.com/academike/alienation-of-property/#_edn5> accessed 04 April 2024
[2]Ramkoomar v. Kishenkunkar (1812) 2 SD 42 (52).
[3] Rao Balwant Singh vs Rani Kishori (1898) 20 ILRPC 267
[4]Ramamma vs Subbarami Reddi (1920)ILR 43MAD824
[5]GurammaBhratarChanbasappa Deshmukh vs Malappa (1964) AIR 510
[6] Kandasami Asari vs Somaskanta Ela Nidhi Limited (1910)20MLJ371
[7]Raanjot Singh ‘ Alienation of Coparcenary Property in Hindus’ ( Family law, 13 May 2021) <https://lawbhoomi.com/alienation-of-coparcenary-property-in-hindus/#Kartas_power_of_alienation> accessed 05 April 2024
[8] Manohar Lal And Anr. vs Dewan Chand and Ors. (1985) AIR PUNJAB AND HARYANA 313
[9]Devulapalli Kameswara Sastry andOrs. vs Polavarapu Veeracharlu, (1910)20MLJ855
[10] Arkadyuti Sarkar ‘ Alienation of Coparcenary Property’ (Family Law, 11 June 2020) <https://blog.ipleaders.in/alienation-of-coparcenary-property-everything-you-need-to-know/#Coparceners_power> accessed 06 April 2024
[11] Deen Doyal Lall vs Het Narain Sing andOrs.(1877)ILR 2CAL42
[12] Alluri Venkatapathi Raju vs Dantuluri Venkatanarsimha Raju (1936)38BOMLR1238
[13]Mahadvappa vs Chanabasappa Purad (1965)1MYSLJ
[14]Ibid
