In this article, we will discuss the concepts of Alienation of coparcenary properties, who may alienate such property, who may challenge such alienation and rights and remedies available to alienee. The alienation of coparcenary property under the Hindu law is governed by the Hindu Succession Act, 1956 and the Transfer of Property Act, 1882. The notion of coparcenary property and its alienation are deep rooted in Hindu mythology. According to Hindu mythology, male descendants are coparceners of undivided joint family property, however with wide sweeping changes introduced in the composition of joint family by way of Hindu Succession (Amendment) Act, 2005, now the daughter of a coparcener is entitled to be a coparcener in her own right and in the same manner as a son.
Before discussing coparcenary property, it is better to have a small introduction with the term coparcenary. Coparcenary is a narrow body of persons within a joint family consists of father, son, son’s son, son’s son’s son. Like joint family, to begin with consists of father and his three lineal descendants, for its continuance the existence of the father son relationship is not necessary, thus a coparcenary can consist of grandfather and grandson, of brothers, of uncles and nephew and so on.
The rule is that one must not eliminated by more than four degrees from the last holder of the property, howsoever removed one may be from the original holder, one will be a coparcener. But if one is removed from more than four degrees one will not be a coparcener. After four degrees all members are dependents.
The Mitakshara School of coparcenary is based on the theory of son’s birth right in the joint family property. Not merely a son but also a son’s son and son’s son’s son acquire an interest by birth in the joint family property.
Ingredients of coparcenary
- Existence of property (Ancestral)
- Male and female members (Only Daughters)
- Right to claim partition.
- Four generation rule
- Collective enjoyment.
- Interest by birth
- Survivorship (Abolished under 2005 Amendment Act H.S.A, 1956)
M is the father and N to T is lineal descendants. Now as per the Four generation rule, coparcenary exists until P and Q, R, S, and T are excluded. Now M, the last property holder dies, this shall rearrange the Coparcenary and include Q, and N will become the last property holder. Similarly, if N dies, then O, P, Q, and R become the Coparceners with O being the last property holder. This way our four generation rule continues.
Alienation of Coparcenary Property
Alienation of coparcenary property is an essential element of the Hindu Law and more precisely the Hindu Succession Act, 1956. All the transfers of the intestate property, after the death of a male ancestor in a Hindu joint family, are controlled by the rule of inheritance. Alienation of such property can be transferred as gifts, sale and mortgages. Neither the Karta nor any other coparcener individually possesses any power to alienate joint family property or his interest within the joint family property, though under Dayabhaga School, a coparcener has the right of alienation over his interest in the joint family property.
Alienation of separate property as any Hindu whether governed by any school has full and absolute powers over it. Such alienation is governed by transfer of property act, 1882.
Who may Alienate Coparcenary Property
The following persons are capable of alienating/transferring a coparcenary property and thus possess the power in this regard:
Father’s power of alienation
Dayabhaga father had full power of alienation over all properties whether self-acquired or ancestral both movable and immovable. However, it is now a settled law that Mitakshara father has no greater power over joint family movable property than over joint family immovable property. Only power of the father that has survived is the power of making gift of love and affection. Another power that has been created by the judicial decisions is the power of alienating joint family property for discharging his personal debts.
The Privy Council set at rest this argument and held that the father had the complete power of alienation over his separate property, irrespective of being moveable or immovable. Rao Balwant Singh v. Rani Kishori, (1898)
Gifts of love and affection:
According to Mitakshara:
- The father is empowered to “make a gift of love and affection” of small portion of movable joint family property.
- Such gifts may be made by him to his:
- Own wife;
- Son in law; or
- Any other close relation.
Guramma v/s malllappa (1964) SC 510
A gift of immovable property to daughter made by the father after her marriage was held valid. Such gifts are valid only if given to daughters.
Karta’s power of alienation:
The power cannot be exercised by any member other than the Karta. The joint family property can be alienated on three grounds:
- Legal necessity
- Benefit of estate
- Indispensable duty (religious & pious activities)
It is now a settled law that Karta can alienate the joint family property with the consent of the coparceners even if none of above exceptional circumstances exists. Kandasami vs. Somakanda (1912)
But an alienation without the consent of the coparceners which is not for legal necessity is held to be void. Manohar vs. Dewan (1985) P&H 313
The Karta’s alienation in the aforesaid circumstances also binds the interest of the minor coparcener. Bharat vs. Nachiar (1976)
It may be taken to be a well settled law that alienation by the Karta without legal necessity or benefit of the estate or in discharge of indispensable duties is not void but merely voidable at the instance of any coparcener. Raghubanchmani vs. Ambika Prasad (1971) S.C. 776
Coparcener’s power of alienation
The Mitakshara School did not permit individual alienation by coparceners. The law of coparcener’s power of alienation is the outcome of judicial decisions. The first inroad was made when it was held that an individual money decree against a coparcener could be executed against his undivided right within the joint family property
We may divide this subject under two heads:
- Involuntary Alienation
This refers to the alienation of the undivided interest in the execution suits. The Hindu sages greatly stressed upon the payment of the debts. The courts laid emphasize on this Hindu legal principle and started its execution on personal money decrees against the joint family interest of the judgment-debtor Coparcener. Deen Dayal vs. Jagdeep (1876),
- Voluntary alienation
Once it was accepted that the undivided of a coparcener can be attached and sold in execution of money decree against him, than the next step involves voluntary alienation.
Voluntary alienation includes:
- Sale and mortgage
Sole surviving coparcener
When all the coparceners dies leaving behind only one coparcener, such a coparcener is known as sole surviving coparcener. When the joint family property passes into the hands of the sole surviving coparcener, it acquires the character of separate property, so long as he does not have a son or daughter (after 2005 amendment)
The sole surviving coparcener has absolute power of alienating the property the way he prefers to by sale, mortgage or gift. But the condition is that at the time of such alienation there is no other member who has joint interest in the family property.
Such alienation cannot be challenged by a subsequently born child or adopted child. But in case if another member was conceived and is in the womb of his mother at the time of alienation, then the sole surviving coparcener does not have the right of alienation and the member on his birth can challenge such alienation or he may ratify it on attaining majority.
After coming into force of the Hindu Succession Act, 1956, the sole surviving coparcener cannot alienate the share of the widow. The sole surviving Coparcener cannot alienate the interest of any female where such interest has been vested on her by virtue of Section 6 of the Hindu Succession Act, 1956.
Coparcener’s right to challenge alienation
When the father, the Karta, the coparcener or the sole surviving coparcener overstep their power, the alienation can be challenged. It can be challenged the moment the person entitled to challenge comes to know of it and till it is not barred by limitation.
When alienation is challenged the onus to prove is on the alienee to show that it was for a valid purpose. When sons challenge alienation made by father for discharging his personal debts, it is for the alienee to show that the debts was taken by the father, though if sons assert that the debt was tainted (thereby admitting that their father did take the debt), the burden of proof that the debt was tainted is on the sons.
Coparcener who was in the womb at the time of alienation
A coparcener who is in the womb of his mother at the time of alienation is empowered set aside such alienation after his birth. Under Hindu Law, a son conceived is in every aspect equal to a son born. This also applies to an alienation made by a sole surviving coparcener.
After born coparcener
An alienation of the joint family property made without any legal necessity by a sole coparcener or by Karta who has no male issue is valid. Such alienation cannot be challenged by a son born subsequently.
If alienation is made by a father who has sons and before all the sons die another son born to him, even after the death of all the sons existing at the time of alienation, the subsequently born son can question the alienation, provided the right is not barred by limitation. The overlapping of lives gives him this right, it is necessary that at the time of his conception there must have existed an unexpired right among some coparceners (even in one) to challenge the alienation.
Adopted son subsequent to alienation has no right to challenge alienation, even if the alienation was invalid on the date when it was made.
Alienee’s Rights & 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 are in possession of such property.
- Right to share on partition
The share to which a buyer is entitled on partition is the share to which 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 partition after vendors death
The alienee’s right to partition is not lost due to 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.
From the above study, it is evident that coparcenary relationship in a Hindu joint family starts from the elder most male member up to four lineal descendants. Therefore eldest male member is considered to be the Karta of the joint family and has the power to alienate or transfer the joint family property with the consent of all other Coparceners. However, such alienations can only be done in circumstances involving legal necessity, the benefit of the estate, and performing indispensable obligations such as religious or pious activities.
- Modern Hindu Law by Paras Diwan.
- Hindu Succession Act, 1956
Author: Ramanjot Singh (Kurukshetra University Kurushetra)