Alienation of Property

INTRODUCTION
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.

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.

In this project the subject matter i.e. Alienation has been discussed under the following
heads:

 Father’s power of alienation

 Karta’s power of alienation
 Coparcener’s power of alienation
 Sole surviving coparcener’s power of alienation
 Aileen’s rights and remedies

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

FATHER’S POWER OF ALIENATION

A father possesses more power even than Karta as there are situations in which only
the father has the authority to make alienation. Under Dayabhaga School, father is
provided with the absolute powers regarding alienation, i.e. he can alienate separate as
well as ancestral property, including movable and immovable on his wish. As the sons
don’t get a right over the property by birth under Dayabhaga School, father doesn’t need
the consent of his sons for the purpose of alienation.

Father enjoys an absolute power, which empowers him to alienate the property even
when there are no moral justifications. In Ramkoomar vs. Kishenkunkar[i], the Sudder
Court held that the gift by a father of his whole estate to a younger son, during the life of
the elder was valid though immoral; however the gift of whole ancestral landed property
was forbidden.

Under Mitakshara Law, while it has been a settled law that the father had full power
disposal of his separate movable property, our courts held conflicting views as to
father’s power of alienation over his separate immovable properties. The controversy
was set at rest by the Privy Council in1898 in the case of Rao Balwant Singh vs. Rani
Kishori[ii], wherein it held that father had full power of alienation over his separate
property, both movable and immovable.

As regards, Joint or Undivided property it has been held that the father can alienate
undivided joint family property only in the following two cases:

 Gift of Love and Affection

 Alienation for discharge of his personal debts

Gifts of Love and Affection

The father has power to make a gift of love and affection of a small portion of movable
joint family property. Such gifts may be made by him to his own wife, son-in-law,
daughter etc.

Two gifts are necessary for that validity of such gifts:

1. It should be a gift of love and affection, i.e., father should stand in some relationship of
affection to donee.
2. The gift should be of a small portion of movable joint family property.

In the case of Basho vs. Mankore Bay[iii], a gift made to the daughter of Rs.20000 was
held by the Privy Council to be valid as the total value of the estate was 10-15 lakhs.
In the case of Subbarami vs. Rammamma[iv]an important principle was laid down that
such gifts cannot be made by a will, since as soon as a coparcener dies, he loses his
interest in the joint property, which he cannot subsequently alienate.

Gifts of Immovable Property

Such gifts cannot be made of immovable property, though in Guramma v. Malappa[v], a

gift of immovable property to daughter made by father after her marriage was held to be
valid.

It is submitted that gifts of love and affection of immovable property cannot be made to
sons, or for that matter to any member of joint family. Supreme Court has confined this
rule of gifts of immovable property to daughter only.

Alienation for Discharge of his Personal Debts

Father has the power to alienate the family property for the discharge of his antecedent
debts, which not being immoral or illegal, the sons are under a pious obligation to
discharge.

Father can alienate family property to pay his personal debts if the following two
conditions are fulfilled-

1. The debt is antecedent.

2. The debt should not be Avyavaharik i.e. for unethical or immoral purposes.

The above two rules though derived from ancient Mitaksharatext was also laid down in
the case of Brij Narain vs. Mangla Prasad[vi].

KARTA’S POWER OF ALIENATION

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.)
 Acts 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 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. In Devulapalli Kameswara Sastri
vs. Polavarapu Veeracharlu[vii], 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[viii]. 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
 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. 
PARTIAL NECESSITY
In Krishandas vs. Nathuram[ix], Privy council held that where the necessity is only
partial, i.e., where the money required to meet the necessity is less than the amount
raised by alienation, in such a case, the sale will be valid only where the purchaser acts
in good faith and after due inquiry and is able to show that the sale itself is justified by
legal necessity.

In the instant case, alienation was for Rs. 3500, and the alienee was able to prove the
legal necessity for Rs.3000, the alienation was held valid.

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. Deivasikamony[x]. 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[xi]”

The Privy Council has elaborately illustrated as to what are the incidents of benefit to
estate in Palaniappa v. Devsikmony[xii], 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’.
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 & Ors[xiii];

“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[xiv]. 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[xv].

Differing from Allahabad High Court, a full Bench of Mumbai High Court in Hem raj vs.
Nathan[xvi] took an intermediate view and held that  “property cannot be alienated
merely for the purpose of enhancing its value, though, at the same time, it would not be
correct to say that no transaction can be for the benefit of estate which it is not of a
defensive character”.

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:-

In, Hari Singh vs. Umrao Singh[xvii], 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 Bank[xviii], when a alienation was made to carry out
renovations in the hotel which was a family business, it was held to be for benefit.

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[xix].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 Reddi[xx], 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[xxi]”.

BURDEN OF PROOF
In the landmark case of Hanoomaprasad vs. Babooee[xxii], it has been held that the
burden of proof whether the transaction is for legal necessity, benefit or for
indispensable duty, is on alienee.

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.

COPARCENER’S 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
coparcener’s 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 Coparcener’s 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 doesn’t 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 he’ll 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.

Coparcener’s 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 Persaud’s 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 Hon’ble 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 Coparcener’s 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 don’t 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.

ALIENEE’S RIGHTS AND REMEDIES

Karta’s 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 coparcener’s 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.

Coparcener’s 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 coparcener’s 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.

Edited By Drishti Das

[i] (1812) 2 SD 42 (52)

[ii](1928) 30 BOMLR 1331

[iii](1907)34 IA 107

[iv](1920)43 Mad 824

[v]1964 AIR 510, 1964 SCR (4) 497

[vi](1924) 26 BOMLR 500

[vii] (1911) ILR 34 Mad 422

[viii]Misra Ranganath J. Hindu Law and Usage (15th edn.,2003), p.805

[ix] 1927 P.C. 37

[x]1917 P.C. 68.

[xi]http://www.scribd.com/doc/68527077/Alienation-Under-Hindu-Law.

[xii] Supra Note 10

[xiii]964 AIR 1385, 1964 SCR (6) 321.

[xiv] J. Hindu Law and Usage (15th edn.,2003), p.805.

[xv] Ibid.

[xvi](1935) 37 BOMLR 427.

[xvii]1979, All. 65.

[xviii]1978 A.P. 37.

[xix]http://www.lawyersclubindia.com/articles/Concept-of-Karta-in-Joint-Hindu-Family-
4678.asp#.Ux4svz-SySo.

[xx](1927) 29 BOMLR 856

[xxi]http://www.scribd.com/doc/68527077/Alienation-Under-Hindu-Law.

[xxii] 1856 6 MIA 393

[xxiii](1918) 20 BOMLR 724.

[xxiv] Supra note. 6, p.825.

[xxv] Dr. Para’s Divan, Modern Hindu Law, 22ndEdn. 2013, p.331

[xxvi](1936) 38 BOMLR 1238

[xxvii]AIR 1965 My. 15

[xxviii]AIR 1950 Boom. 271

[xxix]AIR 1968 Boom. 8

[xxx] 1988 S.C. 576

[xxxi] AIR 1971 SC 776, (1970) 3 SCC 350, 1971 III UJ 132 SC

[xxxii]AIR 1952 Mad 435

[xxxiii] Supra Note 17.

[xxxiv](1954)Bom. 386 (F.B.)

[xxxv] (1972) I.T.R. 452

[xxxvi] 1917 P.C. 41

[xxxvii](1885) ILR 11 Cal 396

[xxxviii]1953 AIR 487, 1954 SCR 177

[xxxix]http://www.lawteacher.net/property-trusts/essays/hindu-law-and-the-transfer-of-
property-act-law-essays.php

[xl]96 IndCas 166

[xli]AIR 1966 SC 470

[xlii]AIR 1954 SC 177

[xliii] 1975 Mad 316 (where the entire case has been discussed)