COPARCENERS POWER OF ALIENATION

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 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. In Radhakant Lal vs. Nazma
Begum[xxiii], 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[xxiv].

Sale and Mortgage

According to Bombay, Madras and Madhya Pradesh High Courts, a coparcener has the power to sell
mortgage or otherwise alienate his 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 hid
undivided interest by sale or mortgage, without the consent of other coparceners[xxv].

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 favour 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 favour 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
favour of his one of several coparceners is not valid.

In Alluri Venkatapathi Raju vs. Venkatnarasimha Raju[xxvi], Privy Council held that, a coparceners
renunciation of his interest merely extinguishes his interest in the joint estate and its only effect is to
reduce the number of persons to whom shares will be allotted if and when a division of the estate takes
place.

Sole Surviving Coparceners Power of Alienation

When the joint family property passes into the hands of the sole surviving coparcener, it assumes the
character of separate property, so long as he doesnt have a son, with the only duty on him being that of
maintenance of the female members (the widows) of the family.

Thus barring the share of the widows he can alienate the other property as hisseparate property. However
this is not valid if another coparcener is present in the wombat the time of the alienation. But if the son is
born subsequent to the transaction then hecannot challenges the alienation.

In case a widow adopts a child after the death of her husband, will such a child challenge the alienation,
i.e. can the doctrine of relation back be applied in such cases. The Mysore High Court in the case
of Mahadevappavs. Chandabasappa[xxvii] held that such a child can actually challenge the alienation
made by the sole surviving coparcener as hell have an interest in the joint family property. This is in
contrast with the stance taken by the Bombay High Court in the cases of Bhimji vs. Hanumant
Rao[xxviii] and Babrondavs. Anna[xxix]where it was held that subsequently adopted son cannot divest
a sole surviving coparcener of his right over the joint property and hence cannot challenge any alienation
made by him.

Coparceners Right to Challenge Alienation

If the father, Karta, coparcener or sole surviving coparcener oversteps their power in making the
alienation, it can be challenged and set aside by any other coparcener who has an interest in the property,
from the time he comes to know of it till the time the suit is barred due to limitation.

Art 126 of the Indian Limitation Act 1908 sets the period of limitation for a suit by son challenging
alienation made by the father as 12 years, Art 144 gives the period for alienation made by Karta as 12
years, in case of mere declaration the period is 6 years.

The burden of proof is on the alienee to prove that it was for a valid purpose. It has been laid down that in
case the alienation is made by the father for the payment of his debts, then the burden of proof is on the
alienation to prove that he had taken sufficient care to determine that it was for the payment of debt. The
sons can rebut this assumption only by proving that the debt was Avyavharik i.e. immoral, in such a case
the burden of proof that the debt was tainted is on the son.

Alienation in case of Legal Necessity

In Hunooman Persauds case it has laid down that in case the alienation was made by Karta for a legal
necessity it is again for the alienee to prove that he took sufficient care in finding out if the transaction
was for necessity or no, however once it was proved that he had taken due care, the actual presence or
absence of such a necessity is irrelevant.
The Honble Supreme Court in Sunil Kumar vs. Ram Prakash[xxx] held that a coparcener has no right
to obtain a permanent injunction against the Karta to prevent him from Alienation of joint family property
since he has the remedy of challenging the same.

Alienation without Necessity Void or Voidable

The question whether Alienation made by a father or other manager which is neither for a legal necessity
nor for the discharge of an antecedent debt is void or voidable has given rise to conflicting judicial
opinions.

The debate was put to rest by the Supreme Court in the case of R. Raghubanshi Narain Singh vs.
Ambica Prasad[xxxi], where it was held that alienation made without legal necessity is not void but
merely voidable.

Existing Coparceners Right to Challenge Alienation

It is a settled law that an improper Alienation can be challenged by all or anyone of the coparceners
existing at the time of alienation.

In Bombay and Madras, when an alienation is challenged by the coparcener, it will be set aside only to
the extent of their interest in the joint family property. As under these schools coparcener has power of
alienating his undivided interest by sale or mortgage.

In case of suits filed by the coparceners, Madras High Court has given some vital rules:

In the case of Permanayakam vs. Sivaramma[xxxii], where it was held that

1. If the alienation is made only for partial necessity, it may be set aside.
2. If alienation is only a device for distinguishing a gift, the other coparceners dont lose interest in
the property or survivorship rights.

Finally, it was laid down in the case of Sunil Kumar vs. Ram Prakash[xxxiii] that a coparcener cannot
ask for an injunction against alienation on the ground that it is not for legal necessity.

Coparcener who was in the womb at the time of alienation;

Since under Hindu Law, a son conceived is, in many respects, equal to a son born, a coparcener who is in
the womb of his mother at the time of alienation can get the alienation set aside after his birth.

After born Coparcener:

In Shivaji v. Murlidhar[xxxiv], it has been that an alienation made by a father who has male issues and
before all the sons die another son is born to him, then even after the death of all the sons existing at the
time of alienation, the subsequently born son can challenge the alienation provided the right is not barred
by limitation. The overlapping of lives give him this right, it is necessary that at the time of his conception
there must have existed an unexpired right among other coparceners to challenge the alienation.

Adopted son:
Commissioner of gift tax vs. Tejanath[xxxv], it has been held that a son adopted subsequent to
alienation has no right to challenge alienation even if the alienation was invalid at the time when it was
made.

ALIENEES RIGHTS AND REMEDIES

Kartas Alienation
In case the alienation is valid then there would be no problem as the alienee would automatically get all
the rights of a mortgagee against the mortgager.

However if the alienation is pronounced as invalid his situation is very unclear-In the states of
Maharashtra, Madhya Pradesh and Madras where the alienation is set aside only to the extent of non-
alienating coparceners share, there is no equity entitling the alienee to a refund of proportionate part of
purchase money in respect of those shares.

In the case of Narayan Pd vs. Sarmam Singh[xxxvi], the Privy Council held that in states where
alienation can be totally set aside, the alienee would have no equity against his purchasing amount.

In the case of Hasmat v. Sundar[xxxvii],the Calcutta High Court said that if the alienation made by the
father was set aside, then the sum becomes the debt of the father which has to be paid by the sons, hence
they cannot set aside the alienation without refunding the purchasing price, however this decision has
been criticized as this principle is violative of the antecedent rule.

Coparceners Alienation and the Alienee

Where the sale of coparcenary property or an interest therein is within the authority of the alienor, it
cannot be set aside and the alienee gets certain rights in respect of that property. If the whole of the
coparcenary property is sold, the position of the vendee is governed by the general law. He is full owner
of the property, entitled to the possession thereof and to the ejectment of the members of the joint family.
No question of Hindu law arises here. But where a person purchases an undivided interest of a coparcener
in the joint family property, some important issues of personal Hindu law crop up. Here ordinarily the
rule of Hindu law is that the vendee whether at a private sale or at an auction sale by court stands in the
shoes of vendor, but it does not mean that he becomes a member of joint family property like his vendor

When translated into practice this yields him the following rights:

Right to Partition
It is now a settled law that an alienee has a right to partition and carve out his share. If a coparcener
alienates his interest in the joint family property in some specific property, can the alienee file a suit for
the partition to specific property only and not for the general partition? There is difference in opinion
among various high courts on the issue:

According to the Bombay and Madras High Courts, the purchaser cannot demand the very property which
has been sold to him. He can only ask for the general partition of the interest of his alienor. The reason is
that because of the unity of ownership of the coparcenary property, the alienor coparcener cannot be held
to be entitled to the specific property to the exclusion of the other coparceners.

But on the other hand, the Allahabad and Calcutta High Courts hold that there is no need for a general
partition. The purchaser can ask for partition of the interest of the alienor in the specified property
purchased by him. The reason for partial partition is that a purchaser cannot institute a suit for partition in
respect of property in which he has no interest at all. The non-alienating coparcener can also sue the
purchaser for the partial partition of the property transferred. He need not ask for general partition.

It has been held that the purchaser can demand partition not only during the lifetime of the vendor but
also after his death.

Right to Mesne Profits

It is now a settled law that an alienee is not entitled to the mesne profit on the property from the day of the
purchase till the day of the partition suit is decreed. In Sidheshwar Mukherjee v. Bhubneshwar Prasad
Narainsingh[xxxviii], The Supreme Court held that a purchaser in an auction purchase of coparceners
share in execution of a money decree against him is not entitled to mesne profits from the date of his
purchase.

Alienee takes the properties subject to equities

The alienee of coparceners joint family interest will take the property subject to all charges,
encumbrances and liabilities attesting the joint family property or the interest of the coparcener.

Right to impeach previous alienation

The purchaser of a coparcenary property in a transaction of sale which is authorized can challenge the
earlier alienation which was not authorized. This happens in three cases:

When he inherits the property of a coparcener by testamentary or intestate succession

When the property alienated without an authority is later on alienated with authority to a different
person, the later alienee can challenge the earlier alienation. This right is given to him for the
purpose of protecting the interest he has acquired.
A purchaser in an execution sale of the coparcenary property which had already been alienated
without authority can challenge the earlier alienation[xxxix].

Right of Joint Possession

On the question whether the alienee has a right of joint possession of specific property alienated to him
before he seeks patition, the law is not well-settled, different High Courts having expressed conflicting
views on the point.

The position under law may be summarized as under:

 According to Madras High Court, as the purchaser from a coparcener is not a tenant in common
with the coparceners in the family, he is not entitled to joint possession or to mesne profits with
other coparceners. The rule holds good both at private and court sales. However, in case, the
alienee has obtained possession, the other coparceners have the right to sue for the recovery of
possession of the entire property.
The Bombay high Court takes a different view. The court has in the case of Bhau vs. Budha
Manaku[xl], laid down three principles as regards the above question in debate.
1. If the purchaser is a stranger and has not obtained possession, he cannot be given
possession with the other coparceners but should left to his remedy of a suit for partition.
2. If the alienee has obtained possession, the alienating coparceners are entitled to joint
possession with him. Or, it is open to them to sue for recovery of possession of the whole
joint property.

The purchaser in possession need not be ejected in a suit for recovery of possession brought by an
excluded coparcener, but can be declared entitled to hold(pending a partition) as a tenant- in-
common with the other coparceners.

When two stranger purchase property from different coparceners of the joint family, they cannot
claim joint possession if the property.
When there exists a valid contract for alienation of joint family property, the alienee can sue for
specific performance of the contract.

The issue came to be discussed by Supreme Court in M.V.S. Manikayala Rao v. M.

Narasimhaswami[xli], wherein the court held that it is well settled that a purchaser in such a case cannot
claim to be put in joint possession with the other coparceners. He has only the right to ask for general
partition of the joint property.

RIGHT TO SHARE IN PARTITION

As a general rule, the alienee in a suit for partition to work out his right cannot claim that the specific
properties that were alienated to him should be allotted to his share. But he has an equitable claim and
ordinarily the court may assign that very property to his share if it could be done without injustice to other
coparceners.

However, in case the court does not allot hi that property, the question arises can he have something else
in substitution of the property alienated to him? This is known as the substituted security. The Courts
have recognized that this can be done. This principle was laid down in the case of Padmanabh v.
Abraham[xlii] which said that though it would be in all fairness kept in mind that the alienee is given the
share he has purchased but he could be given other share if it causes injustice to the other coparceners. It
must be noted that this is in accordance with the Mitakshara principle that no member has a right without
express agreement to claim a specific portion as his; same applies to the alienee as he steps into the shoes
of the coparceners. Poti, J. in Venkatammal vs. Simma[xliii],observed that the doctrine of substituted
security will be applicable not only when the undivided share of a coparcener in all the items of the
coparcenary property or the undivided share of a coparcener in all the items owned jointly, is alienated,
but also when specific item of property is alienated by such coparcener and ultimately it is found that the
alienating coparcener is allotted some other item in partition. The doctrine will apply irrespective of the
question whether the right of coparcener is transferred by private sale or by court.
The Bombay, Madras and Andhra Pradesh High Courts have held the principle substituted security
does not apply to court sales, while the Kerala High Court has held that the principle applies to court sales
also.