CHANAKYA NATIONAL LAW UNIVERSITY

A PROJECT
ON
Alienation of joint hindu property by a
coparcener

Subject: family law 2

Submitted To: -dr. Shaiwal
satyarthi
Submitted By: -Anubha Raj
Roll No: 720
3 rd
semester,2nd year

ACKNOWLEDGEMENT
1

I am feeling highly elated to work on the topic Alienation of joint Hindu property by a

coparcener Under the guidance of my Family Law teacher. I am very grateful to him for
the exemplary guidance. I would like to enlighten my readers regarding this topic and I
hope I have tried my best to pave the way for bringing more luminosity to this topic.
I also want to thank all of my friends, without whose cooperation this project was
not possible. Apart from all these, I want to give special thanks to the librarian of my
university who made every relevant materials regarding to my topic available to me at
the time of my busy research work and gave me assistance. And at last I am very much
obliged to the God who provided me the potential for the rigorous research work.
At finally yet importantly I would like to thank my parents for the financial support

RESEARCH METHODOLOGY

The project is basically based on the doctrinal method of research as no field work is done on
this topic. The whole project is made with the use of secondary source.

AIMS AND OBJECTIVES

The aim of the project is to present a detailed study of Alienation of joint Hindu property by
a coparcener through decisions and suggestions.

SOURCES OF DATA:
The following secondary sources of data have been used in the project1

Books

Websites

Journals

TABLE OF CONTENT:

1. Introduction
2. Joint Hindu Family Property
3. Concept of coparcener under Hindu law
4. Alienation of joint family property
4. Alienation of joint family property - Exceptions
5. Conclusion

INTRODUCTION:

Alienation can be defined as it includes as any disposal by the father, Karta, coparcener or
the sole surviving coparcener of a part or the whole of the joint family property by any act or
omission, voluntary or involuntary, intended to take part in presenter future 1.
Thus it can be said that alienation has a very wide scope and application. The distinguishing
feature of this power is that it was traditionally given only to the father or the Karta and that,
but the power itself is near autocratic as it allows them to sell, gift or mortgage the whole
joint family property without the consent of any coparcener, this is why the ancient texts have
specified several conditions which alone would justify such acts of the manager. These
conditions have changed over the centuries to keep in pace with the changing conditions and
the ancient rules have been modified by the Privy Council in accordance with the principles
of equity, justice and good conscience. The lack of any codified law as well the changing face
of the commercial transactions a joint family enters into these days have created many
situations where even the jurists have still not agreed upon the settled law and this constant
situation of flux makes alienation a very interesting study2 .
The effort has been made to list all the varying view point and critically analyse 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.
the following persons have the power to alienate coparcenary property, so as to pass a good
title to the transferee:
(1) The whole body of coparceners, if all of them are adults.
(2) The manager, to the extent mentioned below.
(3) The father, to the extent mentioned below.
(4) A sole surviving coparcener, in the circumstances given below.

1 Hari Singh Gour,THE HINDU CODE,6th ed.1996,p.586

2 R.K Aggrwal,Hindu Law, (Allahabad: Central law agency)265
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The powers of each of the above four persons are discussed below in necessary details. It is to
be remembered that no other coparcener can alienate coparcenary property, unless he is
authorised to do so.

JOINT FAMILY PROPERTY:

A property owned by a JHF is JHF property. A JHF can acquire properties from various
sources viz., on partition, by way of gift, through will, accretion to the existing properties,
blending, by joint labour, etc. However, after the codification of major aspects of Hindu law
in 1956, the concept of ancestral property is considerably diluted, as th 3ere is now a clear
demarcation between individual property and JHF property of a Hindu male 4. Self acquired
property of a Hindu male will pass on to his legal heirs as per the rules of succession and the
legal heirs receive the property as individual property. So also the share of the deceased
coparcener in HUF, which otherwise devolves by survivorship to other coparcener goes by
succession to legal heirs, which they hold as separate property, if such coparcener has left
certain class of female relatives or a male relative who claims through such female relative,
specified in Class I of the first schedule to Hindu Succession Act, 1956. (Survivorship now
has been abrogated by Amendment Act of 2005)
Ancestral property:
Property inherited upto 4 generations of male lineage (i.e., father, grandfather, etc.) is called
as ancestral property. The right to a share in such a property accrues by birth itself, unlike
other forms of inheritance, where inheritance opens only on the death of the owner. The rights
in ancestral property are determined per stripes and not per capita. This means that the share
of each generation is first determined and the successive generations in turn sub divide what
has been inherited by their respective predecessor5.
Properties inherited from mother, grandmother, uncle and even brother is not ancestral
property. Property inherited by will and gift are not ancestral properties.
Property jointly acquired by the members of the joint family:
Where property has been acquired by the members of joint Hindu family by their joint labour
whether in a business, profession or vocation, with the aid of joint-family property, it
becomes joint-family or copercenary property. It was also held by the Bombay High Court
that property acquired by the joint labour of the members, even without the aid of joint3
4 Poonam Pradhan, Family Law Lecture,(New Delhi: LexisNexisButterworth)2005
5 Mulla, Hindu law, Lexis Nexis pg.no.119
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family fund, is presumed to be joint-family property in absence of any indication of an

intention to the contrary6.
In Sidha vs. Sahoo Jhuma Dei 7, the Orissa High Court has held that the position in law
appears now to be well settled that when the members of a joint-family, by their joint labour
or in their joint business, acquired property that property in the absence of clear indication of
a contrary intention would be owned by them as a joint family property/
In another case the court has held that acquisition in the names of all i9ndividual members do
not constitute joint family property and the burden is upon the person who claims acquisition
as joint-family property to prove availability of sufficient nucleus. Failure to prove so would
lead to the presumption of equality of interest.
In Kondiram v. Krishna8, it was held by the Supreme Court that properties having joint family
nucleus till date of severance in status must be deemed to be joint family properties. But
properties acquired by brothers after severance in status cannot be clubbed into joint family
properties.
Property thrown into the common stock- A member of a joint family may, under certain
circumstances, acquire property to hold it exclusively as his own. But if the coparcener has
voluntarily thrown his self acquired property into the joint funds with the intention of
abandoning all separate claims to it, it would be joint property, so as to divisible among all
the members9. Such an intention need not be express, it is sufficient if the owner blends it as
one general account without discriminating between the two, in such a way that a clear
intention to waive his/her separate rights may be established 10. A clear indication to waive
6
7 AIR 1977 Orissa 47
8 AIR 1995 S.C. 297
9 Ram Prasad v. Sheo Charan , 10 MIA 190 at p. 205
10 Lal Bahadur v. Kanhaiya Lal, 24 All 244: 34 IA 65
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separate rights must be established and will not be inferred from acts which may have been
done merely from kindness or affection 11. Thus, when the head of a joint Mitakshara family
kept only one account of ancestral and self acquired property and sued to amalgamate the
funds, it was held that the self-acquired property become joint property12.
Property acquired with the aid of joint- family funds- Property acquired with the aid and
assistance of joint-family property is also joint. Thus, accumulation of income, i.e., rent etc.
Of joint family property, property purchased out of such income, the proceeds of sale or
mortgage of such property, and property purchased out of such proceeds are also joint family
property. Where property is acquired by members of a joint Hindu Mitakshara family out of a
business carried on by them, there would be presumption that such property is the joint
property of the members though the business may not have been ancestral or started with
nucleus of ancestral funds13. Where in fact at the date of acquisition of a particular property
the joint family had sufficient nucleus for acquiring it, the property in the name of any
member of the joint family should be presumed to be acquired from out of family funds and
so to form part of the joint family property unless the contrary is shown 14. In Kondiram v.
Krishna15 the Supreme Court held that in joint Hindu Family, all the properties and
acquisitions having joint family nucleus till the death of partition or, severance in status, must
be deemed to be joint family properties.

11 AIR 1950 Mys 35

12 Munshi Inder v. Kunwar Shiam, ILR 40 Cal 470(PC)
13 Josoda Bai v. Seetal Chundra, 9 WR 69
14 Narayanaswami v. Ram Krishna, AIR 1956 SC 289
15 AIR 1995 SC 297
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CONCEPT OF COPARCENER:
Coparceners are such persons who jointly inherit property, whereof they have unity of
possession, which, however, may be severed at any time by partition. The co-heirs and their
heirs also are called coparceners so long as unity of possession continues. Mulla defines
coparceners as the three generations next to be holder in unbroken male descent16.
Hindu Succession (Amendment) Act, 2005 has introduced changes of far-reaching
importance in the concept of the Mitakshara coparcenery. This Amending Act has substituted
Section 6 of the Hindu Succession Act. The substituted sub-section (1) of section 6 now runs
as below:On and form the commencement of the Hindu Succession (Amendments) Act, 2005, in a
joint Hindu family governed by the Mitakshara Law, the daughter of a coparcener shall(a) By birth become a coparcener in her own right in the same manner as the son;
(b) Have the same rights in the coparcenary property as she would have had if she had
been a son;
(c) Be subject to the same liabilities in respect of the said coparcenary property as that of
a son;
And any reference to a Hindu Mitakshara Coparcener shall be deemed to include a reference
to a daughter of a coparcener.
There are various types of rights of coparcener. A coparcener is also given the right of
alienation. A coparcener may alienate his undivided interest in the coparcenary by gift or
16 Principles of Hindu Law by Mulla 13th Ed., p. 240
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mortgage or sale with the consent of the other coparceners. In Bombay, Madras and Madhya
Pradesh, however, a coparcener may alienate for value even without such consent 17.
According to the Mitakshara law, as it was, before the commencement of the Hindu
Succession Act, 1956, no coparcener, not even a father could dispose of by will his undivided
coparcenary interest even if the other coparceners consent to the disposition. Now, Section 30
of the Hindu Succession Act as amended by the Hindu Succession (Amendment) Act, 2005
lays down that such interest is deemed to be property capable of being disposed of by will.

Alienation of joint Hindu Family Property:

Alienation with the consent of all the coparceners:- When other members, are major, an
alienation for value, if made without legal necessity or benefit of the estate would still be
valid in its entirely, if it is made with the consent of all other coparceners. The Privy Council
thus explained the law. The Karta cannot alienate joint property unless he obtains the
consent of the other members of the joint family if they could give it, or unless that was
established necessary to justify the transaction 18. Consent may be express or implied. In case
of implied consent it is not necessary to prove its existence with reference to a particular
instance of alienation, but a general consent may be deducible in case of urgent necessity,
from the very fact of the manager being entrusted with the management of the family estate
by the other members of the family.
If, however, such an alienation has been made without such consent, it will take effect in
Bombay, Madras and Madhya Pradesh to the extent only of the managers interest in the
property alienated as well as that of any other coparceners therein, whose consent was
obtained to alienation, while in other States (governed by Mitakshara Law), not even the
alienors, the kartas own interest can pass to the alienee or be sold in enforcement of the
mortgage19. In Bengal and Uttar Pradesh also if such alienation is made, the Court will set
17 Lakshman v. Ram Chandra, 7 IA 181: 5 Bom 48 (PC)
18 12 Cal. 389
19 Anant Ram v. Collector of Etah, AIR 1917 PC 188
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aside it at the instance of any member 20. A transfer even to a coparcener is invalid without the
consent of the other coparceners.
Alienation by father as Karta of the family- The powers of a Mitakshara father as karta
of the family to bind his infant children with regard to disposal of joint-family property are
wider than those of other kartas of such families and rest upon an implied consent on the part
of all the other members and it is presumed that what is done by him is for the benefit of the
family.
A coparcener, whether natural born or adopted acquires an interest by birth or adoption, as the
case may be, in the ancestral property of the family. A managing member of the family has
the power to alienate for value, joint-family property either for family necessity or for the

benefit of the estate. Alienation can also be made by a managing member with the consent of
all the coparceners of family.
Whenever the father makes an alienation of the coparcenary property as the Karta of the
family, the onus of proof as to necessity is on the alienee. Onus of proof may be discharged
by the alienee by proof of actual necessity or by proof that he made proper bona fide enquires
about the existence of legal necessity or that he did all that was reasonable to satisfy himself
as to its existence21.
Alienation by a sole- surviving coparcener-A sole surviving coparcener is entitled to
dispose of the coparcenary property as if it was his separate property. He may sell or
mortgage the property without any legal necessity. Likewise, he may make a gift of such
property. If a son is born to such a coparcener after the alienation, such a son cannot object to
such alienation.
Similarly, a sole surviving coparcener can dispose of the property by will. However, as the
will operates from the date of the death of the testator, if a coparcener comes into existence
20 Ramchand v. Govind, 5 All 384
21 Jwala Singh v. Laxmandas, AIR 1975 P&H 138
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before his death, the will would not take effect, and the property would pass by survivorship.
It will be seen that, in such a case, the coparcener (who makes the will) cannot be said to be
the sole surviving coparcener22.

Alienation of joint family property- Exceptions

Kartas powers of Alienation

The modern law of alienation is completely based on the ancient texts with littleor no
deviation from the basic rules given there. The modern law of alienation was settledto a large
extent in the landmark judgment of Hindu Succession Act, 1956.
Hunooman Persaud v.Mussmat Babooee 23
In this case the alienation made by a widow for the interest of her minor son was challenged,
here the case was that of a mortgage but the lordships made it clear that the same principles
would be applicable even in the case of sale or gift and that too by any member, father or
karta. Here three conditions were stated in which the alienation would be valid:22 Paras Diwan, Family Law,(Allahabad: Allahabad law agency)2011
23 (1856)6 MIA313.
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1. In the case of a legal necessity. Corresponding to the ancient condition of Apatkale

2. For the benefit of the estate, similar to the concept of Kutumbharthe
3. For religious purposes i.e. Dharmarthe.
Under above three situations kartas power inside which he can alienate the joint property
even without the consent of all the coparceners. Literally translated it means he has special
powers of disposition (by mortgage, sale or gift ) of family property in a season of distress
(for debt), for the purposes and benefit of the family (maintenance, education and marriages
of members and other dependents) and particularly for religious purposes (Shraddhas and the
like)Therefore under the Mitakshara law the manager can validly make an alienation only in
three circumstances i.e. Apatkale (in times of distress), Kutumbarthe (benefit of the family)
and dharmarthe (religious purposes).Under Dayabhaga, the powers of the karta are similar to
that of the Mitakshara. However it differs in the powers of the father are much wider as
Dayabhaga says that the father has absolute power to dispose off all kinds of ancestral
property by sale, mortgage, gift, will or otherwise in the same way as he can dispose off his
separate property.

Benefit to Estate
Broadly speaking, benefit of estate means anything, which is done for the benefit of the joint
family property. There are two views as to it. One view is that only construction, which is of
defensive character, can be a benefit of estate. This view seems to be no longer valid. The
other view is that anything done which is of positive benefit, will amount to benefit of estate.
The test is that anything which a prudent person can do in respect of his own property.
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 v.Deivasikamony24 .
24 AIR (1917)44 IA 147;

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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 defence 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
Supreme Court later added its own observation as to what constitutes benefit, in the case of
Balmukund v.Kamla Wati 25.
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.
The below given illustrations will give an idea as to the cases where the courts have held the
alienation to be for benefit of the estate.

Hari Singhv. Umrao Singh26 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 v Indian Overseas27

Bank, when a alienation was made to carry out

renovations in the hotel which was a family business, it was held to be for benefit.
Legal Necessity It cannot be defined precisely. The cases of legal necessity can be so
numerous and varied that it is impossible to reduce them into water tight compartments.
Loosely speaking it includes all those things, which are deemed necessary for the members of
the family. What need to be shown is that the property was alienated for the satisfaction of a
need. The term is
25 AIR 1964 SC 1385
26 AIR 1979 All. 65
27 AIR 1978 A.P. 37
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the money required to meet the necessity is less than the amount raised by the alienation, then
also it is justified for legal necessity.
Dev Kishan v. Ram Kishan 28
Facts: - Ram Kishan , the plaintiff filed a suit against appellants, defendants. Plaintiffs and
defendants are members of a Joint Hindu Family. Defendant no.2 is the Karta, who is under
the influence of defendant no.1 has sold and mortgaged the property for illegal and immoral
purposes as it was for the marriage of minor daughters Vimla and Pushpa. The defendants
contention was that he took the loan for legal necessity.
Judgment: - The debt was used for an unlawful purpose. Since it was in contravention of
Child Marriage Restraint Act, 1929, therefore it cannot be called as lawful alienation.
Again as in the case of benefit of the estate, the courts have refrained from giving a set
definition to the concept of legal necessity so as not to reduce it onto watertight compartment.
The concept of legal necessity is essentially one which may change and is thus in a state of
flux .It can basically mean all acts done to fulfil the essential needs of the family members
and only those acts which are deemed necessary. The shastric condition on which the concept
of legal necessity i.e. Apatkale essentially means situations of distress and emergency like
floods, famines, fire, wars etc. however it has been recognized under the modern law that
necessity may extend beyond that. Thus it is now established 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. The following
example would suitably illustrate the above stated principle-Food shelter and clothing of the
family members, marriage of the members of the family including daughters ( special duty),
medical care of the members of the family, defence of a family member involved in a serious
criminal case, for the payment of debts binding on the family, payment of government dues
etc.
Indispensable Duties
The third ground upon which the authority of the managing member whether father or any
other Karta to make an alienation of family property rests is where the indispensable duties
such as the obsequies of father and the like require it. and the like may include many rituals
28 AIR 2002 Raj 370
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and religious duties like sradha, upanayana, and performance of necessary Sanskara. In the
case of the marriage of the members of the family members it would come under the purview
of both legal necessity as well as pious obligation as it is the most essential sanskara. The
major case in this regards is that of Gangi Reddi v. Tammi Reddi 29

In this 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 vivo and not de futuro by will .
In the case the alienation was made by the karta 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. These principles were given in the case of Hunooman Prasads case. It is
immaterial that there was earlier mismanagement of the estate if it can be proved that there
was sufficient cause for the alienee to believe that there was an actual necessity which made
it imperative that the alienation be made. A lapse of time between the transaction and the
filing of suit does not make any difference in the procedure, other than that the standard of
proof may be lowered if the courts feel that the hard evidence has been lost because of the
time difference, in this case the presumptions will also be accepted as evidence30.

If the interest rate is unusually high then the burden of proof becomes twofold i.e.it has to be
proved that there was a necessity to take a loan and then to prove that it was imperative to
take the loan at such high rate. If the court is not satisfied as to the need to take such high
interest then it may decrease the rate of interest.

29 AIR(1927)54 IA 13
30 Kusum, Family Law Lecture,(New Delhi: Nexisbutterworth)2005
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CONCLUSION:

Alienation is one of the concepts which evolved during the basic construction of Hindu laws
and it maintained its importance right throughout. The rules regardingconditions 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.
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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. 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. This gives the power to him to use his share
for purposes which ma ynot qualify as necessity for the whole family but are very important
for him. It also gives him a right to benefit from his share without severance from the joint
family which occurs at the time of partition. 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.
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 :-First, 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 alien or 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. Second, the law according to which the purchaser loses all
his interest in the joint property along with all the chance of getting back the purchasing
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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. Thirdly, 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 mesne 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.

BIBLIOGRAPHY:
1. Aggrwal R.K. Hindu Law, Allahabad: Central law Agency, 2012
2. Mulla. Hindu Law, Lexis Nexis, 2012
3. Kusum, Family Law Lectures, New Delhi: Lexis NexisButterworths, 2003.
4. Saxena Poonam Pradhhn, Family Law Lecture, New Delhi: Lexis NexisButterworths
2005.
5. Diwan Dr. Paras, Family Law, Allahabad: Allahabad law Agency, 2012

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WEBSITES:
1. http://www.shareyouressays.com/117200/alienations-of-coparcenary-property-underthe-hindu-law-explained
2. https://bharatchugh.wordpress.com
3. http://indiankanoon.org/
4. http://www.legalservicesindia.com/

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