LIMITATION ON RIGHTS OF COPARCENERS

TO ALIENATE JOINT FAMILY PROPERTY.

A research proposal submitted in fulfillment of the course Family Law
II, semester IV during the academic year 2017-18.

SUBMITTED BY:- SUBMITTED TO:-

Name- SHAURYA KASHYAP Dr. Pooja Srivastava

Roll No- 1645 Faculty of Family Law II
BBA LLB

CHANAKYA NATIONAL LAW UNIVERSITY,

PATNA

Month of Submission – April

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 DECLARATION

I Shaurya Kashyap, student of B.B.A., LL.B. (Second year) in

Chanakya National Law University declare that the research project
entitled “LIMITATION ON RIGHTS OF COPARCENERS TO
ALIENATE JOINT FAMILY PROPERTY” submitted by me for the
fulfillment of Family law course is my own work. This project has not
been submitted for any other Degree / Certificate / Course in any
Institution / University.

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 ACKNOWLEDGEMENT

I would like to thank my faculty Dr. Pooja Srivastava, whose

assignment of such a relevant topic made me work towards knowing
the subject with a greater interest and enthusiasm and moreover he
guided me throughout the project.

I owe the present accomplishment of my project to my friends, who

helped me immensely with sources of research materials throughout
the project and without whom I couldn’t have completed it in the
present way.

I would also like to extend my gratitude to my parents and all those

unseen hands who helped me out at every stage of my project.

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 OBJECTIVE

The main aim of this project to know about limitation on rights of

coparceners to alienate joint family property.

HYPOTHESIS

1. Coparceners has full right to alienate the property

2. Women can never become a coparcener

RESEARCH METHODOLOGY

Researcher will follow the doctrinal methods of research for this

project topic.

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 SOURCES OF DATA

The researcher will gather information from primary and secondary

sources that include judgements, internet, law books, journal and
papers.

SCOPE OF THE STUDY

This project has its usefulness in knowing about the rights of

coparceners and who can become a coparcener in a joint family
property.

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 CHAPTERISATION

1. Introduction 7
2. Coparceners 8
3. Karta Limitation 12
4. Case laws 19
5. Conclusion & Suggestion 20
6. Bibliography 24

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 1. INTRODUCTION1

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.

An effort has been made to list the entire varying viewpoint and
critically analyze them in the light of old traditions and newfound legal
principles. Alienation is of vast practical utility as it gives a way of using
the joint family property for the common use of the family and it is a
classic example of the unique position of the Hindu joint family which is
always ready to help its members in times of need and who work
together for common benefit

1
www.wikipedia.com

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 2.COPARCENERS2

The word coparcener has been used widely in relation to the Hindu law
and the HUF. In relation to HUF property, a coparcener is a person who
acquires a right in the ancestral property by birth and a person who has a
right to demand partition in the HUF property. Prior to the amendments
made by the Hindu Succession (Amendment) Act 2005, only male
members of a family had a right to the Ancestral property by birth and
they were only entitled to demand partition in the HUF Property and
thus only male members were called coparceners. Under the Hindu law,
it has also been said that the male members up to three lineal
descendants are coparceners meaning a family consisting of father, his
son, son’s son and son’s grandson are coparceners in the Hindu property.
The genesis of coparcener thus is a common male ancestor with his
lineal descendants in the male line within three degrees excluding him
e.g. his son, son’s son and son’s grandson. This genesis is so long as the
male ancestor is alive and after his death, the three degrees can consist
of collaterals such as brothers, uncles, nephews and cousins etc. This
position is also subject to the amendments made by Hindu succession
(amendment) Act, 2005 whereby even daughters have been included

2
www.indiankanoon.com

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within the term coparceners and all references to son shall equally apply
to daughters also.

Any member other than the above who were not entitled to right in the
HUF property by birth or who did not have a right to demand partition
were not coparceners and were simply members who had a right of
maintenance out of the Hindu family property.

However, with the amendments made by the Hindu Succession

(Amendment) Act, 2005 a daughter has also been given equal rights as
son and she has also become a coparcener in the Hindu property and she
has also got rights over the Hindu property to demand partition.

The subject may be divided under two heads:

1. Involuntary Alienation.
2. 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
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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 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, he should also be permitted to
do it himself, and somehow the principle was extended to voluntary
alienations.

Voluntary Alienation may be made in following forms:

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.

Sale and Mortgage

According to Bombay, Madras and Madhya Pradesh High Courts, a

coparcener has the power to sell mortgage or otherwise alienate his

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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 his undivided interest by sale or
mortgage, without the consent of other coparceners

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 favor
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 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.

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 3.KARTA LIMITATIONS

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 (this includes Vijnaneshwara’s Apatkale as well as a

part of Kutumbarthe, i.e., for the sake of members family.)

Benefit of estate (this includes the other part of Kutumbarthe, i.e., for
the sake of family property.)

Act of indispensable duty(this includes the entire head of Dharamarthe.)

However, the Karta may alienate the joint family property irrespective of
legal necessity or benefit of the estate with the consent of all adult
coparceners in existence at the time of such alienation. Here again, there
is a difference in the law prevailing in different states as to the position
in case the alienation is consented to only by some of the coparceners
and not by all. As per the law in Bombay and Madras, the shares of the
consenting coparceners would be bound. However, in West Bengal and
Uttar Pradesh, a coparcener cannot alienate even his own interest

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without the consent of all other coparceners and hence such alienation
without the consent of all coparceners would not even bind the shares of
the consenting members.

LEGAL NECESSITY

Broadly speaking, 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. Thus, Legal Necessity doesn’t mean
actual compulsion; it means pressure upon estate which may in law may
be regarded as serious and sufficient. If it is shown that family’s need
was for a particular thing and if property was alienated for the
satisfaction of that particular need, then it is enough proof that there was
a legal necessity. The following have been held to be family necessities;

 Maintenance of all the members of the Joint Hindu family,

expenses for medical care for the members.
 Payment of government revenue and government taxes and duties
like income tax.
 Payment of debts incurred for family necessity or family business
or decretal debts
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  Performance of necessary ceremonies, sradhs and upanyana.
 Marriage expenses of male coparceners, and of the daughters of
coparceners.
 Payment of debts incurred for family business or other necessary
purpose.
 Costs incurred for the defense of the head of the joint family or any
other member involved in a serious criminal charge.
 However, where the manager decides to raise money by a
mortgage of family property, he can borrow the precise amount
required for necessity; mortgage will stand good only to the extent
of the necessity proved.

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 courts have not given a set definition of this concept, undoubtedly
so that it can be suitably modified and expanded to include every act
which might benefit the family.

In the modern law the first exposition of the expression “for the benefit
of the estate” was found in the case of Palaniappa vs.
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Deivasikamony3. In this case the judges observed “ No indication is to
be found in any of them(ancient texts) as to what is, in this connection,
the precise nature of things to be included under the descriptions ‘benefit
to the estate. The preservation however of the estate from extinction, the
defense against hostile litigation affecting it, the protection of it or
portions from injury or deterioration by inundations, there and such like
things would obviously be benefits”

The Privy Council has elaborately illustrated as to what are the incidents
of benefit to estate in Palaniappa v. Devsikmony, it laid down that “the
preservation,” however, of the estate from extinction, the defense 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’.

3
1917 P.C. 68.

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CONFLICT OF JUDICIAL OPINION

Consequent to this decision as to what is meant by the expression for the

benefit of the estate’ there has a conflict of judicial opinions on the
issue. According to one view, only that will be a benefit of estate which
is of a defensive character, i.e., which is done to avert an eminent danger
to the property. The second view is that anything which is of positive
benefit to the family as is such as a prudent owner would carry out with
the knowledge available to him at the time.

The Supreme Court later added its own observation as to what

constitutes benefit, in the case of Balmukund vs. Kamlawati & Ors4;

“for the transaction to be regarded as for the benefit of the family it

need not be of a defensive character. Instead in each case the court
must be satisfied from the material before it, that it was in fact
conferred or was expected to confer benefit on family.”

Thus, the only limitation which can be placed on the Karta is that he
must act with prudence and prudence implies caution as well as foresight
and excludes hasty, reckless and arbitrary conduct. Therefore, the Karta,
as prudent manager can do all those things which are in furtherance of
family’s advancement or to prevent probable losses, provided his acts
are not purely of a speculative or visionary character

4
964 AIR 1385, 1964 SCR (6) 321.

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INDISPENSABLE DUTIES

The third ground upon which the authority of the Karta to alienate joint
Family property rests, is where indispensable requires it. The term
“indispensable duties”, implies the performance of those acts which are
religious, pious or charitable. Vijnaneshwara gave one instance of
Dharmamarthe, viz., obsequies of the father and added “or the like”.

The phrase “and the like” refers to annual sraddhas, the ceremony of
upanayanam, the marriage of coparceners and of girls born in family and
all other religious ceremonies. Apart from such indispensable
ceremonies, gift within reasonable limit can be made for pious purposes,
for ex; a small portion of property can be alienated for a family idol or to
an idol in a public temple.

The major case in this regards is that of Gangi Reddi vs. Tammi
Reddi5, wherein the Judicial Committee held that:-

“A dedication of a portion of the family purpose of a religious charity

may be validly by the Karta without the consent of all the coparceners, if
the property allotted be small as compared to the total means of the
family. It also lays down the principle that the alienation should be made
by the manager inter vivos and not de futuro by will”.

5
1978 A.P. 37.

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BURDEN OF PROOF

However, what the alienee is required to prove is: either there was an
actual need or that he made proper and reasonable enquires as to the
existence of needs and acted honestly. It is not necessary for him to
show that every bit of consideration which he advanced was actually
applied for meeting legal necessity. In short the onus may be discharged
by the alienee by:

1. Proof of actual necessity or,

2. By proof that he made proper and bonafide inquiries about the
existence of legal necessity and that he did all that was reasonable
to satisfy himself as to the existence of legal necessity.

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 4 .CASE LAWS

In Radhakant Lal vs. Nazma Begum6, gifts of a part of joint family

estate made by a Hindu in favor of two of his concubines in the daughter
of one of them was held to be invalid as against his sons and grandsons
even in respect of his own interest

In Devulapalli Kameswara Sastri vs. Polavarapu Veeracharlu 7, it

was held that necessity should not be understood in the sense of what is
absolutely indispensable but what according to the notions of the joint
Hindu family would be regarded as proper and reasonable

In, Hari Singh vs. Umrao Singh8, when a land yielding no profit was
sold and a land yielding profit was purchased the transaction was held to
be for benefit.

In Gallamudi vs. Indian Overseas Bank9, when a alienation was made

to carry out renovations in the hotel which was a family business, it was
held to be for benefit.

In the landmark case of Hanoomaprasad vs. Babooee10, it has been

held that the burden of proof whether the transaction is for legal
necessity, benefit or for indispensable duty, is on alienee.

6
AIR 1966 SC 470
7
1979, All. 65.
8
AIR 1965 My. 15
9
(1972) I.T.R. 452
10
1917 P.C. 41

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 5. CONCLUSION AND SUGGESTIONS

Alienation is one of the concepts which evolved during the basic

construction of Hindu laws and it maintained its importance right
throughout. The rules regarding conditions in which a valid alienation
can be made are very practical and pragmatic for example the condition
of Apatkale i.e. in the time of distress gives actual utility of the joint
family property because the share of all the members can be used to
avert distress to any one of them, this is a safety net which saves people
from utter ruin and gives them a chance to start afresh, a chance which is
never given to the people in the supposedly highly civilized and
progressive western nations. Secondly coming to the condition of
Kutumbarthe or ‘for the benefit of estate’, it provides the joint family
members a chance to improve their standard of living by pooling their
resources and utilizing them for their own benefit. This can be put to
practical use for family benefit also in the shape of family business
which is a common Indian occurrence. Lastly we come to Dharmarthe
i.e. alienations made for religious purposes, this gives us an insight into
the traditional Indian thinking where religion is a way of life.

Hence religious purposes are as important as times of distress as

they lead to deliverance.

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 The new changes made by the case law mostly by the Privy
Council and the High Courts have been equally empowering and given
the joint family members the power to use the property for their
upliftment. Chief among these are – firstly, the total control which a
father now has on over his separate movable and immovable property,
this is a departure from the ancient law which did not allow a father to
dispose off his separate property according to his own wishes. Secondly,
the new powers given to alienate his share in the undivided family
property for his own use with or without the consent of the other
coparceners.. Thirdly, the ground of Apatkale has been satisfactorily
extended to include along with situations of emergency and distress,
those situations which may seem proper and reasonable to the court.
This has gone a long way in making the law of alienation much more
suited to present conditions. Hence we conclude that:

 Coparceners has no right to alienate joint family property

 Women can now become a coparcener

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 SUGGESTION

However there still remain conditions where much is needed and

where the judicial reforms have been conspicuous by their absence or
have fallen short of their mark.

Chief among these are the situation of the alienee in front of law,
in my opinion the alienee gets the worst bargain in the whole deal,
starting from the alienation to the actual partition in case the alienation is
proved to be valid. Hence the first suggestions to improve the law of
alienation are regarding :-

 The burden of proof of the alienee to prove that he took

sufficient care to ascertain whether there was actual need
should be lifted, instead in cases of invalid alienation it
should be demanded of the alienor to prove that there was
actual condition which demanded instant redress. This should
be so because the alienee being an outsider is not in a
favourable position to ascertain it and such an obligation
imposed on these transactions would make lenders unwilling
to deal in joint property which would in turn adversely affect
the rights of joint family members.

 The law according to which the purchaser loses all his

interest in the joint property along with all the chance of

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 getting back the purchasing amount is grossly unjust. It
should be noted that the courts in their haste to safeguard the
interest of the non alienating coparceners, forget the interest
of the innocent purchaser who has made a bonafide deal.
Hence sufficient recourses should be made for this.

 Even in the case of a valid alienation the rights of the alienee

are far from just and this should be accordingly changed so
that the alienee is entitled to the mense profit of the property
from the day of the purchase instead of the day of the
partition, also he should be entitled to receive only that
property which was alienated to him, in my opinion his
interest is more than a mere coparcener.

Other than that some minor suggestions like the coparcener should
be given the right to seek an injunction against alienations which can be
proved to be invalid.

Lastly the position regarding the gifts of affection of immovable

property should be made clear and uniform.

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 BIBLIOGRAPHY

In making of this project, I have taken the help of various books and
internet sites. I also taken the help of my friend and my teacher.

 BOOKS
1. HINDU LAW – R.K. AGARWAL
2. MAYNE’S TREATISE ON HINDU LAW & USAGE
3. G.M. Divekar, HINDU LAW: A CRITICAL
COMMENTARY

 SITES

4. www.wikipedia.com
5. www.lawoctopus.com
6. www.indiankanoon.com
7. www.ecourts.gov.in

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