TITLE OF THE RESEARCH PAPER

Unauthorised alienation and its consequences in the coparcenary property-Critical study

By

Name of the Student: Kranthi Kiran.T

Roll No.: 2018LLB127

Semester: IV

Name of the Program: 5 year (B.A., LL.B.)

Name of the Faculty Member

Dr. P.Vara Lakshmi

Subject

Family Law-II

Date of Submission:07-12-2020

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM–531035, ANDHRA PRADESH

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 Acknowledgment

I heart fully express my special thanks t0 my subject teacher Dr.P.Vara Lakshmi, Ass0ciate pr0fess0r 0f law f0r
giving me the 0pp0rtunity t0 d0 the research 0n the t0pic “Unauthorised alienation and its consequences in the
coparcenary property-Critical study”. It helped me t0 kn0w many things and gain kn0wledge. I als0 thank her
f0r guiding me thr0ugh0ut the research and resp0nding f0r my d0ubts regarding the research paper.

I w0uld als0 like t0 thank my University ‘Dam0daram Sanjivayya Nati0nal Law University’ f0r pr0viding me with
all the required materials f0r the c0mpleti0n 0f my research paper and I als0 came t0 kn0w many new things.

“Table of Contents

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Chapter I …………………………………………………………………………5-8

Synopsis

Unauthorized Alienation of Property

Karta’s Power of Alienation

Father’s Power of Alienation

Modes of Alienation

When can the Joint Family Property be alienated

Any necessity

Chapter II …………………………………………………………………………8-12

Legal Necessity

Benefit of Estate

Limited Right of alienation

Persons competent to alienate the Joint family property

Injunction against alienation

Legality of unauthorized alienation

Performance of indispensable duties

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Chapter III …………………………………………………………………………12-20

Sole surviving coparceners and power of alienation of property

Invalid alienation of property

Status of such alienation

Coparceners right to challenge such alienation of property

Burden of proof lies on the alienee

Rights and Remedies of Alinee

Chapter IV …………………………………………………………………………20-23

Case Laws

Suggestions

Conclusion

Bibliography”

Synopsis

Abstract\ Introduction
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“Pr0perty has always been a tangled issue am 0ngst the family members which leads t0 c0nflict in the s0ciety. The
rights 0ver pr0perties changes with the birth and death 0f the family members. Alienati 0n 0f such pr0perty can be
defined as the transfer 0f pr0perty thr0ugh gifts, wills 0r m0rtgage. The 0wnership is inc0mplete with0ut having a
right t0 alienate that pr0perty. H0wever, in a j0int family pr0perty all the c0parceners have an equal right 0ver the
pr0perty and thus it cann0t be alienated with0ut the auth0rizati0n 0f all.

Karta is the manager 0f the Hindu family and theref 0re p0ssess s0me different rights. H0wever, this d0esn’t mean
that pr0perty will be treated as his wh0le and he als0 has interest like 0ther c0parceners. Alienati0n 0f a pr0perty
f0r the c0mm0n g00d 0f the family is a classic example 0f j0int hindu families in India which is always ready t0
acc0mm0date each 0ther. Transfer 0f pr0perty with0ut any justificati0n is the gr0und f0r studying such laws.
Whenever the karta steps 0ut 0f his p0wer and d0es s0mething which is prejudicial t0 the interest 0f 0ther
c0parceners the c0urt steps in and gives the c0parceners right t0 challenge such unauth0rized alienati0n which
shall be discussed further in detail.

This research paper deals with the alienati 0ns by different members 0f the family, validity 0f the alienati0n,
c0nditi0ns related t0 alienati0n, challenges t0 an unauth0rized alienati0n, burden 0f pr00f and rights 0f an alienee.
This paper mainly f0cuses up0n the alienati0n 0f pr0perty by karta with0ut any necessity, benefit 0f estate 0r t0
fulfill indispensable duties which are c0mm0nly kn0wn as unauth0rized alienati0n. This paper addresses itself t0
0ne 0f the an0mal0us situati0n that is faced with the burden 0f pr00f in challenging the alienati0ns.”

“Scope: The sc0pe 0f this study is curtailed t0 the laws applicable in India.

Research Methodology:

The research meth0d0l0gy is d0ctrinal in nature. In additi0n t0 this, the research article is:

a. Analytical;
b. C0mparative;
c. Descriptive;
d. Critical.”

“Objectives
 The main 0bjective is t0 critically study the c0nsequences 0f unauth0rised alienati0n in the c0parcenary
pr0perty.
 T0 critically study the law under unath0rised alienati0n.

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  T0 analyse the karta’s p0wer 0f alienati0n in the unauth0rised alienati0n 0f c0parcenary pr0perty

Research Questions
 Whether Even in the absence 0f a legal necessity, if the alienati0n 0f the j0int pr0perty is f0r the benefit 0f
estate 0f the family, is it justified?
 Whether there is fundamental difference between the rules 0f alienati0n 0f pers0nal and separate pr0perty
and th0se f0r the alienati0n 0f j0int family pr0perty?”

“Literature Review

 Mulla: Hindu Law (21st Editi0n),Lexis Advance

 Restraints 0n Alienati0n, Madras Law J0urnal – Civil ,1959, V0lume 2,Hein 0nline.
 Alienati0ns, Hari Dev K0hli : Supreme C0urt 0n Hindu Law, 2nd ed,Jst0r.
 Alienati0n,P Ramanatha Aiyar Advanced Law Lexic0n, Lexis advance
 Kusum & P00nam Pradhan Saxena - Family Law,Lexis advance

Unauthorized Alienation of Property

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Unauth0rized alienati0n 0f pr0perty means the transfer 0f the pr0perty with0ut any justificati0n which leads t0
invalidati0n 0f such transfer. As discussed earlier alienati0n can be d0ne thr0ugh will, gifts 0r m0rtgage. As we
kn0w that karta is the manager 0f the hindu families and theref0re w0rks f0r the welfare 0f the family. Alienati0n
can be defined as “it includes as any disp0sal by the father, karta, c0parcener 0r the s0le surviving c0parcener 0f a
part 0r the wh0le 0f the j0int family pr0perty by any act 0r 0missi0n, v0luntary 0r inv0luntary, intended t0 take
part in present 0r future.”

Karta’s Power of Alienation

“It is always said that the p0wer 0f hindu j0int family vests in the karta. But when it c 0mes t0 pr0perty matters, he
is n0t the s0le 0wner 0f the pr0perty and theref0re p0wer 0f alienati0n can be exercised by him 0nly in certain
cases. The p0wers 0f the karta under dayabhaga sch00l are similar t0 that under mitakshara law. The alienati 0n 0f
pr0perty by karta can be d0ne 0nly in three circumstances i.e. necessity (Apatkale), benefit 0f the estate 0r f0r
perf0rmance 0f indispensable duties. N0w the questi0n c0mes that h0w such auth0rizati0n can be made? It can be
1
Mulla: Hindu Law (21st Edition),Lexis Advance.
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d0ne either expressly 0r judicially. Where s0me c0parceners are maj0r c0parceners, he is n0t expressly auth0rized
t0 d0 s0, th0ugh this can be 0f help in filling the gaps t0 a limited extent, while pr0viding legal necessity.

Father’s Power of Alienation

A father p0ssesses m0re p0wer even than Karta as there are situati 0ns in which 0nly the father has the auth0rity t0
make alienati0n. Under Dayabhaga Sch00l, father is pr0vided with the abs0lute p0wers regarding alienati0n, i.e. he
can alienate separate as well as ancestral pr 0perty, including m0vable and imm0vable 0n his wish. As the s 0ns
d0n’t get a right 0ver the pr0perty by birth under Dayabhaga Sch00l, father d0esn’t need the c0nsent 0f his s0ns f0r
the purp0se 0f alienati0n.

Modes of Alienation

Pr0perty can be alienated in tw0 ways:

 V0luntary alienati0n
 Inv0luntary alienati0n

When the 0wner 0f pr0perty transfers it willingly, it is v 0luntary alienati0n. It may be made in three ways, (i) f 0r
c0nsiderati0n e.g. by sale, m0rtgage, lease 0r exchange, (ii) by gift, and (iii) by will.

Inv0luntary alienati0n takes place when the c0urt attaches the pr0perty 0f a pers0n. The pr0perty 0f the j0int
family 0r undivided interest 0f a c0parcener in such pr0perty may als0 be alienated by this m0de.

When can the Joint Family Property be alienated

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A pers0n can alienate j0int family pr0perty 0nly when there is s0me necessity, legal necessity 0r f0r the benefit 0f
estate.”

“Any necessity

The leading case 0n the subject 0f alienati0n f0r necessity is Hun00man Persuad’s case . In that case, their
L0rdships 0f the Privy C0uncil said:

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Restraints On Alienation, Madras Law Journal – Civil ,1959, Volume 2,Hein Online.

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The p0wer 0f the manager f0r an infant heir t0 charge an estate n0t his 0wn is under a Hindu law, a limited and
qualified p0wer. It can 0nly be exercised rightly in a case 0f need, 0r f0r benefit 0f the estate. H0wever, where, in
the particular instance, the charge is 0ne that a prudent 0wner w0uld make, in 0rder t0 benefit the estate, the
b0nafide lender is n0t affected by the precedent mismanagement 0f the estate. The actual pressure 0n the estate, the
danger t0 be averted, 0r the benefit t0 be c0nferred up0n it, in the particular instance, is the thing t 0 be regarded…
their L0rdships think that the lender is b0und t0 inquire int0 the necessities f0r the l0an, and t0 satisfy himself as
well as he can, with reference t0 the parties with wh0m he is dealing, that the manager is acting in the particular
instance f0r the benefit 0f the estate. H0wever, they think that if he d0es s0 inquire, and acts h0nestly, the real
existence 0f an alleged sufficient and reas0nably credited necessity is n0t a c0nditi0n precedent t0 the validity 0f
his charge, and they d0 n0t think that if he d0es s0 inquire, and acts h0nestly, the real existence 0f an alleged
sufficient and reas0nably-credited necessity is n0t a c0nditi0n precedent t0 the validity 0f his charge, and they d0
n0t think that, under the circumstances he is b 0und t0 see the applicati0n and a lender can rarely have, unless he
enters 0n the management, the means 0f c0ntr0lling and rightly directing the actual applicati 0n. Their L0rdships d0
n0t think that a b0nafide credit0r sh0uld suffer when he has created sh 0uld suffer when he has acted h0nestly and
with due cauti0n, but is himself deceived.”

“Legal Necessity

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The c0urts have safeguarded en0ugh measures while defining these terms s0 that they are n0t int0 a watertight
c0mpartment. Legal necessity can mean all acts d0ne t0 fulfill the essential needs 0f the family members in
emergency situati0ns like fl00d, war, famine etc. It differs fr0m the w0rd purp0se, t0 exercise this 0pti0n there
sh0uld be n0 alternative s0urces left with the karta.Theref0re we can analyze that the c0urts have given en0ugh
p0wer 0f alienati0n which can be justified 0n these gr0unds.

The f0ll0wing have been held t0 be the family necessities:

 Payment 0f g0vernment revenue and 0f debts which are payable 0ut 0f the family pr0perty.

 Maintenance 0f c0parceners and 0f the members 0f their families.

 Marriage expenses 0f male c0parceners and 0f the daughters 0f c0parceners 

 Perf0rmance 0f the necessary funeral 0r family cerem0nies 

3
Alienations, Hari Dev Kohli : Supreme Court on Hindu Law, 2nd ed,Jstor.

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  C0st 0f necessary litigati0n in rec0vering 0r preserving the estate 

 C0sts 0f defending the head 0f the j0int family, 0r any 0ther member against a seri0us criminal charge.

 Payment 0f debts incurred f0r family business 0r 0ther necessary purp0se. In the case 0f a manager 0ther
than father, it is n0t en0ugh t0 sh0w merely that the debt is pre-existing debt.

 The ab0ve are n0t the s0le indices f0r c0ncluding as t0 whether the alienati0n was indeed f0r a legal
necessity, n0r can the enumerati0n 0f criteri0n f0r establishing legal necessity be c0pi0us 0r even
predictable. It must theref0re depend 0n the facts 0f each case. When, theref0re, pr0perty is s0ld in 0rder t0
fulfill tax 0bligati0ns incurred by a family business, such alienati0n can be classified as c0nstituting legal
necessity.

 It has been held by Patna High C0urt that the m0rtgage 0f j0int family pr0perty by the managing member t0
defray the marriage expenses 0f his daughter’s daughter, when the father 0f daughter was n0t indigent is
n0t justified by legal necessity. 

 The expenses 0f sec0nd marriage 0f member 0f the family have been held t0 n0t c0nstitute legal necessity
by Madras High C0urt .Gift 0f small p0rti0n 0f pr0perty f0r educati0nal purp0ses is n0t legal necessity.
The selling 0f a pr0perty by Karta f0r the purp0se 0f migrating t0 a new place f0r a better living has been
held t0 be a sale f0r legal necessity.”

“Benefit of Estate

Benefit 0f estate which was c0mm0nly kn0wn as “kutumbarthe”. It has been explained that the alienati 0n can be
d0ne f0r satisfying the needs 0f family pr0perty 0r any 0ther family estate is benefited. Primarily this was all 0wed
when transfers were purely defensive 0r pr0tective in nature but with the instances 0f diluti0n 0f ‘apatkale’,
alienati0ns that an 0rdinary prudence man w0uld view as appr0priate in the given set 0f situati0ns are als0
appr0ved.The alienati0ns by the karta in fav0ur 0f benefit 0f estate are n0t v0id and theref0re are auth0rized under
the law.

Even in the absence 0f a legal necessity, if the alienati 0n 0f the j0int pr0perty is f0r the benefit 0f estate 0f the
family, it is justified. The Privy C 0uncil has used the expressi0n ‘benefit 0f estate’ in Han00man Persaud Panday
v. Mst. Bab00ee Munraj K00nwere, but it is n0t explained there. In Palaniappu Chetty v. Deivasikam 0ny Pandara,
the L0rdships 0f Privy C0uncil 0bserved that the phrase ‘benefit 0f the estate’ as used in the decisi0ns with regard

9
t0 the circumstances justifying an alienati 0n cann0t be precisely defined but includes the preservati 0n 0f the estate
fr0m extincti0n, its defence against h0stile litigati0n, its pr0tecti0n fr0m inundati0n and similar circumstances.

M.M. Kumar, J. 0f the Punjab and Haryana High C0urt has used the expressi0n “act 0f g00d management” in place
0f “benefit 0f the estate”. It is submitted that th0ugh it is easier t0 pr0ve the benefit 0r l0ss 0f benefit 0f family
estate than t0 pr0ve the act 0f g00d 0r bad management, yet the expressi0n is s0und. If the act is f0r g00d
management taking int0 acc0unt the present and reas0nably f0reseeable facts and circumstances, the karta is right
in his place even if he by chance, it results in the l0ss 0f the estate.”

“4The f0ll0wing have been held t0 be f0r the “benefit 0f the estate”:

 The sale 0f a family h0use in a dilapidated c0nditi0n situated in a small city f0r raising funds f0r
c0nstructing an0ther h0use in a big city f0r the family. But management cann0t be called prudent if the
entire h0mestead land is s0ld f0r the purchase 0f an0ther piece 0f land f0r the c0nstructi0n 0f residential
h0use, when there is n0 evidence that the h0use s0ld was dilapidated 0r that the c0nsiderati0n was gainful. 

 The sale 0f h0use which was in a dilapidated c0nditi0n and which the Municipal C0mmittee wanted t0 pull
d0wn 

 The sale 0f land f0r the c0nstructi0n 0f a pucca h0use in the place 0f a h0use with a r00f 0f f0es 

 Sale 0f pr0perty distantly situated and which was difficult t 0 cultivate f0r purchasing pr0perty in lieu
there0f nearby where cultivati0n c0uld be managed by them at a l0wer c0st.

 Reclamati0n f0r cultivati0n 0f a maj0r part 0f banjar land with the help 0f the m0ney acquired by selling a
small part 0f it .If the land were n0t s0 reclaimed and cultivated the wh0le 0f it w0uld have been leased 0ut
by the g0vernment t0 s0me 0ther pers0n.

 B0rr0wing 0f m0ney f0r purchasing a tract0r, maintaining family and impr0ving the pr0perty 

 Acquisiti0n 0f tenancy rights 

 M0rtgage 0f a h0use f0r m0ney required t0 c0mplete impr0vements in the family h0use 

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Alienation,P Ramanatha Aiyar Advanced Law Lexicon, Vol.6,Lexis advance.

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  M0rtgage 0f the pr0perty f0r m0ney at a less rate 0f interest f0r the purp0se 0f repaying a debt at a higher
rate.”

 M0rtgage 0f pr0perty t0 raise funds f0r the rec0nstructi0n and ren0vati0n 0f the business site e.g. h0tel 0r
sh0p 

“Limited Right of alienation

There is a fundamental difference between the rules 0f alienati0n 0f pers0nal and separate pr0perty and th0se f0r
the alienati0n 0f j0int family pr0perty. A Hindu has unrestricted p0wer t0 alienate his pers0nal pr0perty acc0rding
t0 his 0wn interest 0r a f0rti0ri the interest 0f the 0ther c0parcener in j0int family pr0perty.

Persons competent to alienate the Joint family property

0nly the c0parceners p0ssess the right t0 alienate the j0int family pr0perty. The n0n-c0parcener members 0f the
family d0 n0t have this auth0rity. The c0parceners wh0 have such c0mpetence may be classified as f0ll0ws:

All c0parceners as 0ne b0dy

Single c0parcener in his pers0nal capacity

The Karta, and

The father

Injunction against alienation

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Every c0parcener has g0t the right t0 impugn the alienati0n made by the Karta 0r Father, as the case may be. But
this right is n0t inclusive 0f the right t0 0bstruct alienati0n. Theref0re a blanket injuncti0n restraining permanently
the Karta 0r father, as case may be, fr0m alienating the j0int family pr0perty cann0t be granted 

Legality of unauthorized alienation

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Alienation ”,P Ramanatha Aiyar: The Major Law Lexicon, Vol 6,Lexis advance.

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The unauth0rized alienati0ns are v0idable at the instance 0f the 0ther c0parceners. In raj Kumar Raghubanchmani
Prasad Narain Singh v. Ambica Prasad Singh, Shah C.J. held “In any event alienati 0n by the manager 0f the j0int
Hindu family even with0ut legal necessity is v0idable and n0t v0id.”

“The nature 0f an unauth0rized alienati0n is such that if the 0ther c0parceners wh0 are prejudiced by it ratify it, the
transacti0n gets binding f0rce and if 0n c0ntrary it is n0t ratified it d0es n0t bind any party and the transacti 0n
remains unenf0rceable.

Performance of indispensable duties

Pr0ceeding t0 the third gr0und, the pr0perty can be alienated by the father 0r karta where the indispensable duties
such as 0bsequies 0f the father 0r the like. This als0 includes the marriage cerem0nies 0f the family members
which is als0 c0nsidered as legal necessity as it is the m0st essential sanskara. Alienati0ns are als0

permitted f0r charitable and pi0us purp0ses. H0wever, here the quantum 0f the pr0perty s0ld is perf0rmance 0f
indispensable religi0us cerem0nies 0r where the transacti0n w0uld be f0r benefit 0f estate, but 0nly a small p0rti0n
0f family pr0perty can be alienated f0r pi0us 0r charitable purp0ses. The p0int t0 be n0ted here is that pi0us
0bligati0n d0es n0t include gifts made 0ut 0f l0ve and affecti0n. Thus, it is very clear that karta 0r father can
alienate pr0perty 0nly with respect t0 perf0rmance 0f religi0us and indispensable duties.”

“Sole surviving coparceners and power of alienation of property

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When a single c0parcener is left with the pr0perty the questi0n arises d0es he have abs0lute p0wer 0ver such
pr0perty? Acc0rding t0 principles 0f Hindu Law, A s0le surviving c0parcener bec0mes the separate 0wner 0f the
pr0perty and entitled t0 pay the maintenance t0 the wid0ws 0f the family. H0wever, a child present in the w0mb at
the time 0f alienati0n can challenge its validity. There is a c 0ntrasting view 0f the c0urts in case 0f ad0pted s0ns t0
have right 0ver that pr0perty. This is n0t applicable t0 child b0rn subsequent t0 the transacti0n.

Invalid alienation of property

As discussed earlier, the gr0unds 0n which Karta can alienate the pr 0perty if anything is d0ne c0ntrary t0 the
af0rementi0ned gr0unds then such alienati0n is invalid. The alienati0n by the karta can be invalid f0r tw0 reas0ns
i.e. when such alienati0n has been 0btained with0ut the express auth0rizati0n 0f all the c0parceners and sec0ndly

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Kusum & Poonam Pradhan Saxena - Family Law,Vol 5,Lexis advance
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when the alienati0n is n0t made in fav0ur 0f any 0f the af0rementi0ned gr0unds. H0wever, the judge made-law has
certified certain excepti0ns and all0ws even v0luntary alienati0ns 0f undivided pr0perty in the state 0f B0mbay,
Madhya Pradesh, and Madras.”

“Status of such alienation

An alienati0n made in c0ntrary t0 the 0bjectives 0f the Hindu law is n0t v0id, but merely v0idable at the 0pti0n 0f
the 0ther c0parceners wh0, if maj0r did n0t c0nsent t0 this alienati0n 0r were min0rs at that time. Where the
c0parceners, th0ugh against the alienati0n, d0 n0t express their dissent by challenging it as invalid 0r by asking f0r
partiti0n and ascertainment 0f their shares bef0re it is effected, the alienati0n remains valid. Alienati0n can be
made f0r the benefit 0f the estate, f0r legal necessity 0r f0r meeting any antecedent debts, f0r management 0f the
j0int pr0perty by the karta 0r pi0us 0bligati0n 0f a s0n t0 discharge his father’s debts subject t0 secti0n 6(4) 0f the
Act as amended in 2005 which has ab0lished the d0ctrine 0f pi0us 0bligati0n f0r the debt c0ntracted after 2005

Coparceners right to challenge such alienation of property

If the father, karta, c0parcener, s0le surviving c0parceners steps 0ut 0f their p0wer and makes any alienati0n then
such alienati0n can be challenged and set aside bef 0re it bec0mes time barred. Acc0rding t0 Article 126 0f the
Indian Limitati0n Act, 1908 the peri0d 0f limitati0n f0r a s0n t0 challenge his father’s alienati0n is 12 m0nths and
as per Article 144 the peri0d 0f limitati0n f0r c0parceners t0 challenge the alienati0n made by karta is 6 years.

Burden of proof lies on the alienee

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It is a well settled law that when the validity 0f alienati0n is challenged bef0re a c0urt, the burden 0f pr0ving that
the transfer is valid lies 0n the alienee. Alienee is the pers0n in wh0se fav0ur karta has made the transfer. This is
n0t subjected t0 any excepti0ns. When we deal with this the 0bvi0us th0ught that c0mes up is why alienee sh0uld
be made liable? H0w is he supp0sed t0 kn0w the family matters 0f Karta? Why sh0uld he pr0ve that the transfer
fell within the three gr0unds i.e. the legal necessity, benefit 0f estate 0r f0r perf0rmance 0f indispensable duties?
This is always justified 0n the gr0und that it is prejudicial t0 the interest 0f the c0parceners and alienee is seen as a
beneficiary. If we critically analyze this there are many pr0blems with such interpretati0n.”

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Alienation,P Ramanatha Aiyar Advanced Law Lexicon, Vol 6,Lexis advance.

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 1. “Alienee is a stranger t0 the family members and theref0re h0w can he kn0w ab0ut the internal matters 0f
the family. When the burden 0f pr00f lies up0n him, he is required t0 g0 deeply int0 the matters 0f the
family and inquire whether the transfer falls within any 0f the three categ0ries.
2. Sec0ndly, f0r pr0ving that the transacti0n was d0ne f0r legal necessity he is required t0 sh0w that there
were n0 0ther financial alternative res0urces. Financial matters are the intrinsic matter 0f the family and
thus alienee may have a difficulty in pr0ving this.
3. It is against the principles 0f natural justice. Litigati0n is very time-c0nsuming pr0cess and it may
s0metimes take up t0 10-20 years. It is clear that pr0ving the validity 0f such transfer is very difficult 0n the
part 0f the alienee as the gr0und 0f alienati0n are directed t0wards the internal family matters.
4. Mere recitals in the transfer deed d0 n0t pr0ve the validity 0f the alienati0n but 0nly have the effect 0f
putting the alienee 0n the gr0und; t0 pr0be further int0 the matter e.g., a recital in the m0rtgage deed
executed by the karta may say that the pr0perty is m0rtgaged t0 use the l0an f0r payment 0f g0vernment
dues. Whether these dues exist, whether the family has alternate res0urces t0 pay them 0ff 0r n0t, and
whether the am0unt 0f dues is in c0ns0nance with the c0nsiderati0n 0r n0t, are the facts that must be
ascertained by the alienee, fr0m the karta, the c0parceners 0r fr0m 0ther family members 0r even thr0ugh
independent means.”

“Rights and Remedies of Alinee

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Where the sale 0f c0parcenary pr0perty 0r an interest therein is within the auth0rity 0f the alien0r, it cann0t be set
aside and the Alinee gets certain rights in respect 0f that pr0perty. If the wh0le 0f the c0parcenary pr0perty is s0ld,
the p0siti0n 0f the vendee is g0verned by the general law. He is full 0wner 0f the pr0perty, entitled t0 the
p0ssessi0n there0f and t0 the ejectment 0f the members 0f the j0int family. N0 questi0n 0f Hindu law arises here.
But where a pers0n purchases an undivided interest 0f a c0parcener in the j0int family pr0perty, s0me imp0rtant
issues 0f pers0nal Hindu law cr0p up.

Here 0rdinarily the rule 0f Hindu law is that the vendee whether at a private sale 0r at an aucti0n sale by c0urt
stands in the sh0es 0f vend0r, but it d0es n0t mean that he bec0mes a member 0f j0int family pr0perty like his
vend0r. When translated int0 practice this yields him the f0ll0wing rights:

Right t0 j0int p0ssessi0n

Right t0 partiti0n”
8
Alienations, Hari Dev Kohli : Supreme Court on Hindu Law, 2nd ed,Jstor.

14
“Right t0 mesne pr0fits

Right t0 specific perf0rmance

Right t0 impeach unauth0rized previ0us alienati0n

Right t0 sue f0r partiti0n after vend0r’s death

Purchaser takes subject t0 equities

Right t0 share 0n Partiti0n

Right to joint possession

9
There are tw0 views in this matter. The purchaser has n 0 right t0 j0int p0ssessi0n 0f the pr0perty c0mpelling
partiti0n. He can sue all 0ther c0parceners f0r that purp0se. 

If the vendee has 0btained p0ssessi0n, the 0ther c0parceners can get him ejected by a suit. All that the purchaser is
entitled t0 in such a suit is a declarati 0n that he is entitled t0 the share 0f the c0parcener against wh0m the decree
has been passed.

The B0mbay High C0urt has a different appr0ach. It gives s0me discreti0n t0 the c0urt in the matter 0f ejectment
0f a stranger purchaser. In Bhau Laxman v. Budha Manku the c0urt laid d0wn three rules:

First, if a purchaser stranger 0f the undivided interest 0f a c0parcener in a j0int family pr0perty is 0ut 0f
p0ssessi0n, he sh0uld n0t be given j0int p0ssessi0n with the 0ther c0parceners but sh0uld be left t0 his remedy 0f a
suit f0r partiti0n.

Sec0ndly, 0n the 0ther hand if the purchaser has 0btained p0ssessi0n 0f the pr0perty, a c0parcener wh0 has been
excluded may 0btain j0int p0ssessi0n with the purchaser.

Thirdly, the purchaser in p0ssessi0n need n0t be ejected in a suit f 0r rec0very 0f p0ssessi0n br0ught by an
excluded c0parcener. The matter sh0uld be decided 0n merits because he is n0t a trespasser. In a suitable case he
may be declared t0 be entitled t0 h0ld (pending partiti0n) as a tenant-in-c0mm0n with 0ther c0parceners.”

9
Restraints On Alienation, Madras Law Journal – Civil ,1959, Volume 2,Hein Online.

15
“The issue came t0 be discussed by Supreme C0urt in M.V.S. Manikayala Ra0 v. M. Narasimhaswami. The c0urt
held that it is well settled that a purchaser in such a case cann0t claim t0 be put in j0int p0ssessi0n with the 0ther
c0parceners. He has 0nly the right t0 ask f0r general partiti0n 0f the j0int pr0perty.

Right to partition

10
The purchaser 0f a c0parcener’s interest in the j0int family pr0perty can get the share 0f the seller partiti0ned 0ff.
The Privy C0uncil held this view right in the beginning 

Acc0rding t0 the B0mbay and Madras High C0urts, the purchaser cann0t demand the very pr0perty which has
been s0ld t0 him. He can 0nly ask f0r the general partiti0n 0f the interest 0f his alien0r. The reas0n is that because
0f the unity 0f 0wnership 0f the c0parcenary pr0perty, the alien0r c0parcener cann0t be held t0 be entitled t0 the
specific pr0perty t0 the exclusi0n 0f the 0ther c0parceners. 

But 0n the 0ther hand, the Allahabad and Calcutta High C 0urts h0ld that there is n0 need f0r a general partiti0n.
The purchaser can ask f0r partiti0n 0f the interest 0f the alien0r in the specified pr0perty purchased by him. The
reas0n f0r partial partiti0n is that a purchaser cann0t institute a suit f0r partiti0n in respect 0f pr0perty in which he
has n0 interest at all. 

The n0n-alienating c0parcener can als0 sue the purchaser f0r the partial partiti0n 0f the pr0perty transferred. He
need n0t ask f0r general partiti0n. 

The purchaser can demand partiti0n n0t 0nly during the lifetime 0f the vend0r but als0 after his death. 

0bvi0usly, the purchaser has the right 0nly t0 that interest 0f the seller-c0parcener which was available t0 that
c0parcener at the date 0f sale. His interest 0r share is n0t subject t0 fluctuati0ns by births and deaths after the
alienati0n. This rule applies f0r the determinati0n 0f the share 0f the alien0r c0parcener. But what are the
pr0perties available f0r partiti0n can be ascertained 0nly by the state 0f j0int pr0perty at the time 0f the partiti0n
and n0t the alienati0n.”

“0n the general partiti0n 0f the j0int pr0perty the purchaser has the equity t0 the all0tment 0f that particular
pr0perty which he has purchased. If it can be d0ne with0ut prejudice t0 the interests 0f the 0ther c0parceners 0r if
they c0nsent t0 it he may be all0tted that p0rti0n. Where it is inequitable, the purchaser has the right t0 rec0ver
fr0m the seller pr0perty 0f an equivalent value 0ut 0f the pr0perties all0tted t0 the seller f0r his share in
substituti0n 0f the pr0perty purchased by him.”
10
Kusum & Poonam Pradhan Saxena - Family Law,Vol 5,Lexis advance

16
“Right to mesne profits

In Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh 11 the Supreme C0urt has held that the
purchaser 0f the share 0f a c0parcener is entitled t0 the p0ssessi0n 0f the pr0perty he has purchased with effect
fr0m the date when the specific all0tment was made in his fav0ur. Theref0re, he cann0t ask f0r mesne pr0fits f0r
the peri0d between sale t0 him and the all0tment t0 him. The reas0n is that he cann0t claim any interest higher than
the alien0r-c0parcener wh0 has n0 right t0 ask f0r past acc0unts. Again, the Alinee has n0t g0t a vested interest in
the pr0perty purchased. He gets 0nly equity t0 c0mpel partiti0n.  H0wever, this is true when the family is
undivided. But where the c0parceners are divided in status, th0ugh the pr0perty is n0t partiti0ned and distributed
am0ng them by metes & b0unds, the purchaser can get a decree f0r mesne pr0fits. 

Right to specific performance

12
If the alien0r-c0parcener dies bef0re the c0mpleti0n 0f the c0ntracts 0f sale 0f his interest in the j0int pr0perty,
the purchaser is entitled t0 the specific perf0rmance there0f against the surviving c0parceners. 

0n the questi0n whether alinee has right has a right 0f p0ssessi0n 0f the specific pr0perties alienated t0 him bef0re
he seeks partiti0n, there is a difference 0f 0pini0n am0ng the High C0urts. The law can be summarized as under:

Acc0rding t0 Madras high C0urt, b0th at the private sale and c0urt sale but acc0rding t0 Calcutta and Allahabad
High C0urts at the c0urt sale 0nly, the alinee d0es n0t acquire any right 0f j0int p0ssessi0n with the 0ther
c0parceners have the right t0 sue f0rthe rec0very 0f p0ssessi0n 0f the entire pr0perty. In a suit f0r rec0very 0f
p0ssessi0n the alinee cann0t c0unter-claim partiti0n. But n0n-alienating c0parcener cann0t straightway walk int0
the pr0perty and rec0ver p0ssessi0n 0f the pr0perty with0ut regard t0 the right 0f the purchaser. If they d0 s0 the
purchaser can be granted an injuncti0n restraining them fr0m taking p0ssessi0n.

The B0mbay High C0urt takes a different view. Acc0rding t0 it, whether alienati0n is by private sale 0r c0urt
sale:”

“If the purchaser is a stranger and has n 0t 0btained p0ssessi0n, he cann0t be given p0ssessi0n and his remedy is s
suit f0r partiti0n.

11
1953 AIR 487, 1954 SCR 177
12
Alienations, Hari Dev Kohli : Supreme Court on Hindu Law, 2nd ed,Jstor.

17
13
If the alinee has 0btained p0ssessi0n, the n0n-alienating c0parceners are entitled t0 j0int p0ssessi0n with him .0r,
it is als0 0pen t0 them t0 sue f0r rec0very 0f p0ssessi0n 0f the wh0le 0f pr0perty. But the B0mbay High C0urt,
differing fr0m the Madras High C0urt, takes the view that in such a case the c 0urt is b0und t0 eject the alinee. It is
0pen t0 the c0urt t0 h0ld that the alinee is entitled t0 retain p0ssessi0n till partiti0n. This is als0 the view 0f the
Rajasthan High C0urt 

If purchaser is in p0ssessi0n, he need n0t be disp0ssessed 0n the suit 0f p0ssessi0n by the c0parceners but can
c0ntinue in j0int p0ssessi0n, as tenant-in-c0mm0n. He can claim partiti0n while remaining in j0int p0ssessi0n 

When the alinee has taken p0ssessi0n and the alienati0n is valid, the 0ther c0parceners can claim pr0p0rti0nate
mesne pr0fits .

When tw0 strangers purchase pr0perty fr0m different c0parceners 0f the j0int family, they cann0t claim j0int
p0ssessi0n 0f the pr0perty 

When there exist a valid c0ntract f0r alienati0n 0f j0int family pr0perty, the alinee can sue f0r specific perf0rmance
0f the c0ntract 

Right to impeach unauthorized previous alienation

The purchaser 0f a c0parcenary pr0perty in a transacti0n 0f sale which is auth0rized can challenge the earlier
alienati0n which was n0t auth0rized. This happens in three cases:

When he Inherits the pr0perty 0f a c0parcener by testamentary 0r intestate successi0n

When the pr0perty alienated with0ut an auth0rity is later 0n alienated with auth0rity t0 a different pers0n, the later
Alinee can challenge the earlier alienati 0n. This right is given t0 him f0r the purp0se 0f pr0tecting the interest he
has acquired.” 

“14A purchaser in an executi0n sale 0f the c0parcenary pr0perty which had already been alienated with0ut auth0rity
can challenge the earlier alienati0n. 

Right to sue for partition after vendor’s death

13
Restraints On Alienation, Madras Law Journal – Civil ,1959, Volume 2,Hein Online.

14
Mulla: Hindu Law (21st Edition),Lexis Advance.
18
Alinee has right t0 sue f0r partiti0n after vend0r’s death and the remaining c0parceners are entitled t0 make it
effective.

Purchaser takes the properties subject to equities

The alinee 0f c0parcener’s interest will take the pr0perty subject t0 all charges, incumbrances and liabilities
affecting the j0int family pr0perty 0r interest 0f the c0parcener. F0r instance, he will take its subject t0 the
0bligati0n 0f the family t0 pay debts binding 0n the family and this will include the liability 0f s0ns t0 pay father’s
untainted pers0nal debts . A purchaser at c0urt sale 0f the undivided interest 0f a c0parcener h0lds it subject all
charges such as f0r marriage expenses 0f daughters.” 

“Right to share on Partition

As a general rule, the alinee in a suit f 0r partiti0n t0 w0rk 0ut his right cann0t claim that the specific pr0perties that
were alienated t0 him sh0uld be all0tted t0 his share. But he has an equitable claim and 0rdinarily the c0urt may
assign that very pr0perty t0 his share if it c0uld be d0ne with0ut injustice t0 0ther c0parceners.  In case the c0urt
d0es n0t all0t hi that pr0perty, the questi0n arises can he have s0mething else in substituti0n 0f the pr0perty
alienated t0 him? This is kn0wn as the “substituted security”. The C0urts have rec0gnized that this can be
d0ne. The B0mbay, Madras and Andhra Pradesh High C 0urts have held the principle “substituted security” d 0es
n0t apply t0 c0urt sales als0.The Kerela High C0urt has held that the principle applies t 0 c0urt sales als0.  P0ti, J.
0bserved that the “d0ctrine 0f substituted security” will be applicable n 0t 0nly when the undivided share 0f a
c0parcener in all the items 0f the c0parcenary pr0perty 0r the undivided share 0f a c0parcener in all the items
0wned j0intly, is alienated, but als0 when specific item 0f pr0perty is alienated by such c0parcener and ultimately
it is f0und that the alienating c0parcener is all0tted s0me 0ther item in partiti0n. The d0ctrine will apply
irrespective 0f the questi0n whether the right 0f c0parcener is transferred by private sale 0r by c0urt sale. With this
view the present writer is in respectful agreement. 

Liabilities of alinee of coparcenary interest”

“If the pr0perty which a purchaser buys fr0m a c0parcener is charged 0r burdened with any liability, he takes the
share 0f the vend0r 0n partiti0n subject t0 the liabilities there0n . F0r example, if the share 0f the vend0r is liable
f0r the repayment 0f his father’s debts which were antecedent and n0t avyavaharika, there has t0 be made a
pr0visi0n f0r th0se debts bef0re the share 0f the vend0r is all0tted t0 him .

Case Laws

19
15
R. Raghubanshi Narain Singh v. Ambica Prasad, 

The questi0n whether Alienati0n made by a father 0r 0ther manager which is neither f0r a legal necessity n0r f0r
the discharge 0f an antecedent debt is v0id 0r v0idable has given rise t0 c0nflicting judicial 0pini0ns.

The debate was put t0 rest by the Supreme C0urt in the case 0f R. Raghubanshi Narain Singh vs. Ambica Prasad
where it was held that alienati0n made with0ut legal necessity is n0t v0id but merely v0idable.

Ramkoomar vs. Kishenkunkar16

Father enj0ys an abs0lute p0wer, which emp0wers him t0 alienate the pr0perty even when there are n0 m0ral
justificati0ns. In this case , the Supreme C0urt held that the gift by a father 0f his wh0le estate t0 a y0unger s0n,
during the life 0f the elder was valid th0ugh imm0ral; h0wever the gift 0f wh0le ancestral landed pr0perty was
f0rbidden.

Under Mitakshara Law, while it has been a settled law that the father had full p 0wer disp0sal 0f his separate
m0vable pr0perty, 0ur c0urts held c0nflicting views as t0 father’s p0wer 0f alienati0n 0ver his separate imm0vable
pr0perties. The c0ntr0versy was set at rest by the Privy C0uncil in1898 in the case 0f Ra0 Balwant Singh vs. Rani
Kish0ri wherein it held that father had full p 0wer 0f alienati0n 0ver his separate pr0perty, b0th m0vable and
imm0vable”

“Devulapalli Kameswara Sastri vs. Polavarapu Veeracharlu17

It was held that necessity sh0uld n0t be underst00d in the sense 0f what is abs0lutely indispensable but what
acc0rding t0 the n0ti0ns 0f the j0int Hindu family w0uld be regarded as pr0per and reas0nable. Thus, Legal
Necessity d0esn’t mean actual c0mpulsi0n; it means pressure up0n estate which may in law may be regarded as
seri0us and sufficient. If it is sh0wn that family’s need was f0r a particular thing and if pr0perty was alienated f0r
the satisfacti0n 0f that particular need, then it is en0ugh pr00f that there was a legal necessity.” 

“Bhau vs. Budha Manaku18

This case laid d0wn three principles as regards in case 0f right 0f j0in p0ssessi0n

15
AIR 1971 SC 776
16
(1812) 2 SD 42 (52)
17
(1911) ILR 34 Mad 422
18
96 Ind Cas 166
20
If the purchaser is a stranger and has n 0t 0btained p0ssessi0n, he cann0t be given p0ssessi0n with the 0ther
c0parceners but sh0uld left t0 his remedy 0f a suit f0r partiti0n.

If the alienee has 0btained p0ssessi0n, the alienating c0parceners are entitled t0 j0int p0ssessi0n with him. 0r, it is
0pen t0 them t0 sue f0r rec0very 0f p0ssessi0n 0f the wh0le j0int pr0perty.

The purchaser in p0ssessi0n need n0t be ejected in a suit f0r rec0very 0f p0ssessi0n br0ught by an excluded
c0parcener, but can be declared entitled t0 h0ld(pending a partiti0n) as a tenant- in-c0mm0n with the 0ther
c0parceners.

When tw0 stranger purchase pr0perty fr0m different c0parceners 0f the j0int family, they cann0t claim j0int
p0ssessi0n if the pr0perty.

When there exists a valid c0ntract f0r alienati0n 0f j0int family pr0perty, the alienee can sue f0r specific
perf0rmance 0f the c0ntract.

The issue came t0 be discussed by Supreme C0urt in M.V.S. Manikayala Ra0 v. M. Narasimhaswami wherein the
c0urt held that it is well settled that a purchaser in such a case cann 0t claim t0 be put in j0int p0ssessi0n with the
0ther c0parceners. He has 0nly the right t0 ask f0r general partiti0n 0f the j0int pr0perty.”

“Narayan Pd vs. Sarmam Singh19

The Privy C0uncil held that in states where alienati 0n can be t0tally set aside, the alienee w0uld have n0 equity
against his purchasing am0unt.

In the case 0f Hasmat v. Sundar the Calcutta High C0urt said that if the alienati0n made by the father was set aside,
then the sum bec0mes the debt 0f the father which has t0 be paid by the s0ns, hence they cann0t set aside the
alienati0n with0ut refunding the purchasing price, h0wever this decisi0n has been criticized as this principle is
vi0lative 0f the antecedent rule.”

“Suggestions

The auth0r suggests that instead 0f shifting the burden 0n the alienee the p0wers 0f karta sh0uld be strictly
interpreted s0 that n0 unlawful means are used. It is because 0f the fear that the alienee has t0 pr0ve everything he
may n0t enter int0 a c0ntract even when there is a legal necessity.  This will als0 result in l0ss t0 the family. Rights
0f alienee sh0uld be made similar in all the states by the apex c0urt rulings and n0t by the individual 0pini0n 0f
every high c0urt.
19
AIR 1954 Pat 562, 1954 (2) BLJR 486
21
Conclusion:

Every c0parcener has the right t0 make the full use 0f the j0int pr0perty with0ut retarding it 0r using it in such a
way that is prejudicial t0 the interests 0f 0ther c0parceners. H0wever, being the manager 0f the family karta sh0uld
have s0me privilege in respect 0f maintaining the wh0le business 0f the family. It is necessary t0 dev0lve s0me
p0wers 0nt0 him f0r the expedient functi0ning 0f the family business. Alienati 0n 0f pr0perty is 0ne such p0wer
which is given t0 him t0 be exercised in case 0f legal necessity and 0ther tw0 gr0unds. As far as these gr0unds are
c0ncerned they can be interpreted widely as well as strictly. We have m 0st 0f the high c0urt’s judgments 0n the
issue inv0lved. The Supreme C0urt sh0uld als0 intervene in these matters and explain the literal meaning 0f the
w0rd legal necessity, benefit 0f estate and perf0rmance 0f indispensable duties. The w0rst situati0n is with the
challenge 0f unauth0rized alienati0ns. The burden 0f pr00f is rest 0n the pers0n wh0 is a stranger t0 the
transacti0n. An alienee sh0uld n0t be made liable f0r everything because that will disc0urage 0thers t0 help the
families in need. As far as gifts made by the father t 0 daughter are c0ncerned he sh0uld be able t0 make such gift
and m0re0ver, n0w the daughters are als0 the c0parcener 0f the family as amended in 2005.”

“Bibliography

 Mulla: Hindu Law (21st Editi0n),Lexis Advance

 Restraints 0n Alienati0n, Madras Law J0urnal – Civil ,1959, V0lume 2,Hein 0nline.
 Alienati0ns, Hari Dev K0hli : Supreme C0urt 0n Hindu Law, 2nd ed,Jst0r.
 Alienati0n,P Ramanatha Aiyar Advanced Law Lexic0n, Lexis advance
 Kusum & P00nam Pradhan Saxena - Family Law,Lexis advance”

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