CHAPTER 4 ALIENATION OF HINDU JOINT FAMILY PROPERTY IMPORTANT POINTS/ISSUES (1) Alienation means transfer of property. Voluntary alienation may be made in three ways, (i) for consideration, e.g., by Sale, Mortgage, Lease or Exchange, (i) by Git, and (iil) by Will. 2) Karta’s Power of Alienation (@) Under Dharmashashtra (Mitakshara text) (0 Apatkale (in the time of distress). (ii) _Kutumbarthe (for the sake of the family) ii) Dharmarthe (for the performance of Indispensable duties). (®) Current Legal Position @ Legal Necessity. (i) Benefit of Estate. (iil) Perlormance of religious and indispensable duties. (@) Legal Necessity: Meaning, Essentials and Instances {@) Issue: Whether the taking of the debt by the arta of the ‘amily for the marriage of a minor of the family is a debt incurred for a legal necessity or is for illegal purposes? Case: 2002: Raj.: Dev Kishan v. Ram Kishan. (6) Issue: Adequacy and proper use of consideration receivedis ‘an important factor for validating an alienation. Case: 1980: SC: Arvind v. Anna. (4) Benefit of Estate: Meaning, Essentials and instances Issue: Whether the expression “Benefit of Estate" is limited only to defensive transactions or it extends to prudent transactions (doing something for the profit or increase of the family property aswell? Case: 1964: SC: Balmukand v. Kamalwati, 78) Alienation of Hindu Joint Family Property 2» (6) Burden of proof of legal necessity or benefit of estate Issue: Is it true to say that the burden of proof lies on the alienee to show that the transaction entered into by the karta is for a legal necessity or for the benefit of the estate of the family? If yes, then what is the nature and extent of that burden? (Case: 1856: PC: Hunooman Pd. Pandey v. Mussumat Babooee (6) Right to obstruct Alienation of joint family property by karta Issue: Whether interference of the court (through a suit for Permanent injunction) could be soughtby a coparcener to restrain the karta of Hindu join family trom alienating coparcenary property? Case: 1988: SC: Sunil Kumar v. Ram Prakash. (2) Alienation by Gift of immovable joint family property sue: Can itbe said that a git of mmovable joint family property to. relative out of iove and affection is a git for “pious purposes” within the meaning ofthat expression in Hindu law? Whether the giftisettiement made by the father in favour of his married daughters of a reasonable extent of immovable property out of the joint Hindu family property is valid? Case: 1964: SC: Guramma Deshmukh v. Mallappa, Case: 2004: SC: R. Kuppayee v. Raja Gounder. Alienation means transfor of property. Voluntary alienation may be made in three ways, (i) for consideration, e.g., by Sale, Mortgage, Lease or Exchange, (i) by Gift, and Gii) by Will. There isa fundamental difference between the rules of alienation of personal property and Hindu joint family property. A Hindu has unrestricted power to alienate his personal property according to his intents and purposes. But in case of joint family property, the competence of a Hindu to alienate is determined by his status in the joint family. Only the coparceners possess the right to alienate the joint family property. The non-coparcener members of the family do not have this authority The coparceners who have such competence may be classified as follows: (A) the Karta/manager. (2) the Father (additional special power B) all the coparceners as one body. (4) individuat coparcener in his personal capacity, (5) sole surviving coparcener in his personal capacity.80 Family Law-tl KARTA’S POWER OF ALIENATION! Alienations have an added importance in Hindu law, as, ordinarily, nether the karta nor any other coparcener singly possesses full power of alienation ‘over the joint family property or over his interest in the joint family property. Although no individual coparcener, including the karta, has any power to dispose of the joint family property without the consent of others, it is recognized by the Dharamashashtra that in certain circumstances, any member of the family has power to alienate the joint family property. ‘The Dharmashastras cautioned against the indiscriminate transfer of joint family property to the detriment of its members, as property is always a security in times of need. The Mitakshara text recognized three exceptional cases, in which alienation of the joint family property could be made: () Apathale (in the time of distress): It refers to an emergency faced either by the family together or by one ofits members, or with respect to its property. Iti in the nature of averting a danger for which money has to be raised @) Kutumbarthe (for the sake of the family): It permits the transfer of property where the sale proceeds are utilised for the sustenance of the farnily members such as providing for their needs of food, clothing, shelter, education ete. G) Dharmarthe (for the performance of indispensable duties): ‘The Shastric law laid down elaborate rituals and religious ceremonies, the performance of some of which are obligatory for a Hindu. For pious or religious purposes which are considered indispensable, joint family property can be alienated, Under Mitakshara text this power was conferred to every members of the family inthe above circumstances. But this categorisation has undergone modification in two respects. First, the power cannot be exercised by any member except the karta, Secondly, the joint family property can be alienated for the following three purposes only: (1) Legal necessity, 2) Benefit of estate. (3) Performance of religious and indispensable d @.1. Can Karta alionato Joint Family Property ? Alienation of Hindu Joint Family Property 8 By virtue of his unique position as a principal and representative of tie Joint family, the karta has these special powers to transact about the joint family property without the consent of other coparceners. These powers are implied and he is not required to obtain the consent of all the other coparceners every time. Though this authorisation had its origin in the Dharmashastras, it has been recognised and upheld as valid all along, by the judiciary. [tis submitted that the correct basis of karta’s power seems to be the authority inherent in his position as karta which has been recognized in the ancient text, and the modérn judicial pronouncements, and not the implied consent of the coparceners. 7 LEGAL NECESSITY Meaning and Essentials: Every family has a bundle of necessities. But all of them are not considered to be legal necessities. Necessity is not to be understood in the sense of what is absolutely indispensable but what according to notions of a Hindu family would be regarded as reasonable and proper (Mayne, 16th edn. P. 847). The Supreme Court in Rani v. Santa Bala, (1970) 3 SCC 722, has observed that legal necessity does not ‘mean actual compulsion, it means pressure upon the estate which in law may be regarded as serious and sufficient. It must also appear that the expenses could not be met out of the income of the family or the resoureas on hand, and there must be some connection between the money advanced and the necessity that is proved. (Srinivasan, Sth Edn., 2011, P. 1948, 1949), Payment of government dues is a purpose but it may not qualify as, necessity if sufficient resources are available from which dues can be paid The test is what a reasonable, prudent man, entrusted with the welfare of his family and family property, will do. The recitals in a deed about legal necessity do not by themselves prove legal necessity. The recitals are, however, admissible in evidence, their value varying according to the circumstances in which the transaction was centered into. The recitals may be used to corroborate other evidence of the existence of legal neces: Instances of Legal Necessity: The difficulty is not so much one of principle, as of its application to the varying nature of circumstances as they present themselves to different minds. The following are recognised as legal necessities ofthe joint family: (1) The maintenance of all the members of the joint family, Here ‘maintenance has the wide connotation and it includes in all cases the provision for food, clothing, residence, education and medical care.2 Fanily Lovett (2) The marriage expenses of the coparceners and of the daughters of coparceners. But where the marriage is prohibited by law, its expenses are not for legal necessity, e.g., the marriage of a minor. (3) Regarding marriage expenses of daughters daughter, different High Courts have different opinions. The Nagpur High Court held ‘that such marriage expenses is not a legal necessity, when a daughter isnot indigent, Whereas Madras High Court has taken a different view and held that it does not matier whether the daughter is indigent ornot, such marriage is @ legal necessity. The court reasoned that the marriage of virgins is a pious act conferring spiritual benefiton aHindu (4) Payment of government revenue and of debts which are payable out of the family property. (5) Litigation expenses for preserving or recovering the family property. (6) Performance of the necessary funeral or family ceremonies. (7) Repayment of loan raised for family business. (8) Costof defending the head ofthe joint family, or any other member against a serious criminal charge, unless the charge is of murder of a family member. (9) For the payment of rent or arrears of rent to the landlord. (10) Cost of building a residential house forthe family and expenses for repairs to a family house (11) A sale by karta of joint family property for migrating to different place for better living, Any enumeration of the cases of legal necessity cannot be exhaustive. Legal necessity may change its content with the passage of time. It must therefore depend on the facts and circumstances of each case. Ulustrative Cases (See: Leading Case-Laws) (1) Arvind v. Anna, 2) Dev Kishan v, Ram Kishan, BENEFIT OF ESTATE? Meaning (Defensive Transaction v. Prudent Transaction): An alienation is justified not only in a case of legal necessity but also for the “benefit of estate”, A transaction that brings an advantage to the landed Q.2, Short Note : Benefit of Estate, ‘or Explain the concept of ‘Benefit of Estate’. (DU, LL.B.; 2008) Alienation of Hindu Joint Family Property 8 Property ofthe joint family would be covered under the expression “benefit gfestate”. There was a conflict of opinion as to meaning ofthe expression “benefit ofthe estate” which was used forthe first time by the Privy Council in Hunooman Pd. Pandey's ease, but it is not explained there. Later in Pataniappa Chetty’s case (AIR 1917 PC 33), the Privy Council observed that the phrase “benefit ofthe estate” as used inthe decisions with regard to the circumstances justifying an alienation cannot be precisely defined putincludes the preservation ofthe estate from extintion its defence against hostile litigation, its protection from deterioration by inundation and siailar circumstances. This first view suggests that a transaction cannot be said to be for the benefit of the estate, unless it is of a defensive character calculated to protect the estate from some threatened danger or destruction. Xt became a contentious issue whether this expression is limited only to defensive transactions or it extends to doing something for the profit or increase of the family property as well, ‘The Supreme Court has resolved this controversy in Balmakand v. Kamlawati, AIR 1964 SC 1385 by propounding the second view that for 4 transaction to be regarded as one which is for benefit to the family, i need not necessarily be only of defensive character. It is sufficient, if it is such as a prudent owner would have carried out with the knowledge that ‘was available to him at the time of the transaction. It is competent to the managing member to alienate ancestral property when the transaction is forthe positive benefit ofthe family. However, the court pronounced a rule of caution that the degree of prudence required from the karta is {ittle greater than the expected of a sole owner of the property. Thus, the only reasonable 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. The transaetion is not to be judged by its ultimate results but by what might have been expected to be its results at the time it was entered into. What was once for the benefit of the estate may not be the same in a changed set of circumstances and in fact may be just the opposite. Instances of Benefit of Estate: Whether a transaction is benef {othe estate, must depend on the facts and circumstances of the particular case. The following have been held to be for the “benefit of estate” (1) A sale of a house in a dilapidated condit notice has been issued by the munici 1922 Bom. 122). n,n respect of which a ipality to pull it down.(AIRa4 Family Low-tl (2) Sale of scattered lands of inferior quality to purchase better lands (AIR 1933 AM 568), (8) Sale of property that could not be easily cultivated for purchasing cultivable land (1935 ILR 59 Bom. $25), (4) Sale of inconvenient situated, encumbered and unprofitable property and the purchase in its place of property that is sound investment (AIR 1926 AILS11), (5) Where a manager sells properties in order to migrate to another place and purchase lands there, which are more productive, though, the burden of proof on the alienee is heavy (D.J. Prasad v. D.V. Subbaiah, AIR 1973 AP 214). (6) The case of Jagatnarain v. Mathura Das, AIR 1928 All 454 is illustrative of the transaction beneficial to the family. In this case, the adult members of the family found it very inconvenient to sthanage the property at all which is situated 19 miles away, with the result, apparently, thatthe family was incurring losses in retaining that property. They considered it to the advantage of the estate to sell that property and purchase other property more accessible with the proceeds. They did in fact sell that property on very advantageous terms. The High court held that to sell such property, and that too on advantageous terms, and to invest the sale proceeds ina profitable way could certainly be regarded as beneficial to the family (1) Mortgage of the property for money at a less rate of interest for the purpose of repaying a debt at a higher rate, (8) Mortgage of property to raise funds for the reconstruction and renovation of the family business site e.g., a hotel or shop (AIR, 1978 AP 37), (9) Mortgage of s house for money required to complete improvements inthe family house (ILR 1880 Mad. 339). (10) Sale of land for the construction of a pucca house in the place of house with a roof of bamboo sticks and grass (Tarni Pd. v. Basudeo, AIR 1981 Pat. 331). Imprudent Transactions: It is the sole prerogative of the karta, who has to exercise due care and diligence, whether to alienate the joint family property’or not. It is also true that for transaction to be regarded as of benefit to the family it need not be of defensive character. But at the same time, it must be noted that the karta/manager of a joint family is not Alienation of Hindu Joint Family Property §s entittled to alienate joint family property solely for the prupose of so investing the price of it as to bring in an income larger than that derived from the probably safer and certainly more stable property, ie. the estate (lanc) itself. The following have been held not to be for the ‘benefit of estate’ (1) Sale of property to convert it into money simpliciter even if the consideration is in excess of the market value. (2) Sale of property to convert it into money simpliciter to spend it speculative transactions such as stocks and shares even if it brings a monetary advantage. ) The management cannot be called prudent ifthe entite homestead land is sold for the purpose of another piece of land for the construction ofa residential house, when there is no evidence thet the house sold was dilapidated or that the consideration was gainfu Surendranath Das. v. Sudhir Behera, AIR 1982 Ori. 30 (@) The Privy Council ruled in some cases that the katta of joint family cannot impose on a minor member the risk and liability of a new business to be started by himself and other coparceners; Benares, Bank Ltd. v. Hari Narain, AIR 1932 PC 182. This implies thata new business cannot be considered to be for the benefit of the estate in presence of minor coparceners. The case of Balmukund v. Kamlawati, AIR 1968, SC 1385 is itlustrative of the situation of imprudent transaction of karta. In this case, Hindu joint family owned a small portion of a big plot of land owned by the alienee, who approached the karta for the purchase of the joint family land, and offered him a higher consideration than the market value. Initially accepting the offer, the karta accepted the earnest money, but later he failed to execute the sale deed. As the karte failed to execute the sale deed inhhis favour, the plaintif/alience instituted the suit for specific performance of the contract and made other coparceners defendant thereto. The suit was resisted by all the defendants. Other coparceners pleaded that the transaction was not binding upon them because the sale was not for the benefit of estate nor was there any legal necessity for that sale, ‘The plaintiff's contention was that the intended sale was beneficial to the. family in as much as it was not a practical proposition forthe defendants to make any use of their fractional share in the land and, therefore, by converting, it into money the family stood to gain. The substance of his argument wes thatthe manager of a Hindu joint family has power to sel the family property not only for a defensive purpose but also where circumstances are such86 Family Law-tl ‘that a prudent owner of property would alienate it fora consideration which he regards to be adequate. The Supreme Court observed that the karta of a Hindu joint family being merely a manager and not an absolute owner, the Hindu law has placed certain limitations upon his power toalienate property which is owned by the joint Family. The Hindu law. however, could not have intended to imposeany such restriction on his power as would virtually disqualify him from doing anything to improve the conditions of the family. The transaction justifiable on the principle of the benefit of estate need not necessarily be only of a defensive character. The only reasonable limitation whic, ‘can be imposed on the karta is that he must aet with prudenee. If the transaction is such as a prudent owner of property would, in the light of circumstances which are within his knowledge at that time, have entered into the transaction must be upheld, The degree of prudence required from the manager would be of little greater than that expected ofa sole owner of property. Prudence implies caution as well as foresight and excludes hasty, reckless and arbitrary conduct. Thus, what transaction would be for the benefit of the family must necessarily depend upon the facts of each and every case. In the present case, the Supreme Court held that there was nothing (0 suggest that any sale was being contemplated by any consideration of prudence. The family was in affluent circumstances and there was nothing in evidence to show that the karta was having any difficulty in managing the property or that the family was incurring loss in retaining that property. Nor was there any suggestion that he wanted to invest the sale proceeds in a profitable manner. There is no suggestion that ail other adult coparceners were agreed to the transaction or were consulted about it or even knew of the transaction. The facts and circumstances of the case suggest that the contract and the proposed sale was not for the benefit of estate and no suit for specific performance of the contract could be decreed. INDISPENSABLE DUTIES Indispensabfe duties imply performance of those acts which are religious, pious or charitable. The Dharmashastras provided for elaborate rituals and ceremonies to be performed on various occasions in a man’s life, and these rituals constitute an integral part of the fife of Hindu. Sradha, Upnayana, Marriage, Gtihapravesh, Gauna are some of the indispensable duties, However, for an alienation to be valid, it must be shown that the family did not possess alternative resources from which money could be raised to spend in these ceremonies, Alienation of Hindu Joint Family Property » Pious purposes include only religious and charitable purposes and do not include gifts made out of love and affection. The karta cannot gift a Joint family immovable property to his wife orto sons or to coparcerners or to strangers or a relative, even where itis supported by a renunciation of the karta’s own share. BURDEN OF PROOF OF LEGAL NECESSITY OR BENEFIT OF ESTATE Warning: The issue of “Burden of Proof” regarding legal necessity ‘or benefit of estate is one of the most important and fundamental aspect ‘of law relating to alienation of Hindu joint family property. So, you must comprehend it alongwith the landmark judgment of the Privy Council in Hunooman Pd, Pandey v. Mussumat Babooce (1856). This Judgment became a lighthouse to guide ail those who deal with those Properties in which alienor does not have absolute power of disposal, Managing the joint family property is one of the inherent powers of karta, The karta has implied authority to alienate the joint family property either for legal necessity or for the benefit of the estate. It is certainly @ question of fact whether or not there was a legal necessity of, or the benefit of estate from, the alienation in question of the joint family property. This fact has to be proved. Law lays down no presumption in this regard. Who will bear the burden of proving it? ‘This burden does not lie on the alienor. This burden also does not lie on the coparcener who impugns the alienation. The burden of proof lies upon the person who claims the benefit of the alienation. Thus, alienee has to prove that the transaction entered into by the karta is for a legal necessity or for the benefit of the estate of the family. The reason for casting this burden on the shoulders of the alienee is very logical. He must know, while dealing with a karta, that he is dealing with a person of limited and qualified powers, Therefore, he must ascertain that such a person is working within the four walls of his authority. The other reason is that if the alicnation is unauthorised and is for this reason avoided, he may suffer. Therefore, he has a right to come forward to prove that it was for a legal necessity or for the benefit of the estate, Otherwise the karta and the other ‘members may collude against him, In the alternative to the above, the alienee may also discharge this burden’ by simply proving that he made reasonable and bonafide enquiries as to the existence of the legal necessity and did all that wasi Family Law-It reasonable to satisfy himself that the manager was acting for the benefit of the estate, It depends upon the facts and circumstances of each case as to the extent and nature of the enquiry that should be made by an alienee whom the karta/manager approaches for the purposes of alienating joint family property in order to secure a loan. Once this is done, it is immaterial if it turns out actually there was no need for alienation. A bonafide creditor/alienee should not suffer when he has acted honestly and with due caution, but is himself deceived, Itis also for the alienee to prove that the alienation was for an adequate consideration, but the alienee is not required to see that every bit of the consideration which he advanced is actually applied to meet the family necessity. The reason is that he can rarely have the means of controlling and directing the actual application, unless he enters on the management himself. I is also for the alienee to prove that the terms of alienation and the rate of interest on the money borrowed were not unreasonable and ‘onerous. But the alience is not bound to go into the question as to what mode of alienation, sale or mortgage etc., would be better for the karta. ‘That is for the karta to decide. It is unreasonable to require the alienee to go into that question. The alience is also not concerned whether the necessity arose from an earlier mismanagement of the family property. If eves party to such mismanagement, the alienation in his favour is not valid. ‘The existence of a necessary purpose is not the same as legal necessity, for, there may be large resources making a loan unnecessary. The alienee hhas to prove that the family did not have alternative resources from where money could be raised and that there was sufficient pressure on the family to sell or mortgage the property. : ALIENATION BY GIFT Gift is the transfer of certain existing movable or immovable property ‘made voluntarily and without consideration by one person, called the donor, to another, called the donee and accepted by or on behalf of the donee. If the donee dies before acceptance, the gift is void. Under the Hindu law, property is of two kinds: separate property and joint family property. The law regarding gifts of both varies. nee (1) Gift of separate property: A Hindu has competence to dispose ‘of his separate property of gift subject to a limitation that ifany person has aright to get maintenance out ofthe property tobe gifted, that argh ogen ai right can not Alienation of Hindu Joint Family Property 89 (2) Giftof joint famity property: Ifall the members of the coparcenary are adult they can make a gift of the joint family property by unanimous consent. But as far as the right of individual coparcener to make a gift of joint family property is concerned, it depends upon whether the donor isan ‘ordinary coparcener or the father or the karta of the Hindu joint family. First Case: Gift by an Ordinary Coparcener of his Undivided Interest in the Coparcenary Property A coparcener cannot make a valid gift of his undivided share in the coparcenary property, unless itis with the consent of all the coparceners, or is in favour of all the coparceners to the extent of his total share. A gift made otherwise, is void and can be recovered back by the coparcener whe had earlier executed it. There has not been a change in the law relating te gifts of an undivided share in the Mitakshara coparcenary even after the passing of the Hindu Succession Act, 1956 and the same position continues ‘The object of this strict rule against alienation by way of gifts to maintain the jointness of ownership and possession of the coparcenary property. ‘Second Case: Gift by Father Coparcener of Joint Family Property through Love and Affection Special Authority of Father: Though a son gets @ right by birt in the {joint family property of his father equal to his, yet the latrer has more powers, than the former regarding its gift. Except in the matter of gifts through love and affection and of alienations for the discharge of his antecedent debts (which is not being illegal or immoral) and in the matter of his power to effect a partition amongst his sons, there is under the Mitakshara law no distinction between a father and his sons as far as substantial proprictorship is concerned. Gifts through affection of Movable Joint Family Property: The father has the power of making within reasonable limits, gifs of ancestral movable property without the consent of his sons for the purpose of performing indispensable acts of duty, a gift through affection, support cf the family and so on. Such gifts may be made by him to his own wife, daughter, son-in-law, son, daughter-in-law or to any other near relation ‘These may consist of jewels, gold or silver ornaments, clothing, cash or of 'Q.3. Short notes : Gift of immovable joint family property in favour of daughter by the karta, {DU, LL.B; 2009) (Or Short notes ; Gilte of love and afection by karta in favour of maried daughter. [DU, LL.B; 2000] ‘Or Short notes: Powor of karta of a Mitakshara Hindu joint family 10 make a gilt of ancestral property [DU, LLB; 2005)90 Family Law-tt any movable property. Such gifts are very common among Hindus and are ordinarily made on some oceasion, such as marriage. upaneyana, mondana or when the daughter, after marriage, visits the house of her father, or when a child is born to her. A gift of love and affection may also be given to the daughter-in-law when she gives birth to a child, Thus, two conditions are necessary forthe validity of such gifts: (1) it should be a gift of love and affection, Le, the father should stand in some relationship of affection to the donee, and (2) the gift should be of 2 small portion of ‘movable joint family property. What isa small portion, isa relative term and has to be considered in relation to the entire joint family property. (Modern. Hind law: Paras Diwan, 20th end, P. 317). Gift of Immovable Joint Family Property: In so far as immovable Property is concerned, the power of gift is much more circumscribed than in the case of the ancestral movable property. That imimovable property can be donated only for a ‘pious purpose’ by the father. In Perumalakka y. Balakrishnan, AIR 1967 SC 569, the Supreme Court held that while movable ancestral property can be gifted out of affection to a wife or a daughter or a son within reasonable limits, immovable property can be sifted only for pious purposes. Immovable property cannot be gifted merely out of love. What is generally understood by pious purposes is gift for charitable and/or religious purposes. Justification for Gift of Immovable Joint Family Property to Daughter: The meaning of “Pious purposes’ has been extended to cases where a Hindu father makes a gift within reasonable limits of immovable ‘ancestral property to his daughter in fulfilment of an antenuptial promise ‘made on the occasion of the settlement of the terms of her marriage, and the same can also be done by the mother/brother in case the father is dead. Amongst the female, a daughter's place is different from that of others in joint family. According to Dharmashastras the father, and in his absence, the brothers were under a duty to give a portion of the property to her, cither atthe time of partition or atthe time of her marriage. Itcould be one. fourth of the share of each brother or a reasonable portion of the property. The emphasis here is on gift of a reasonable extent, In Guramma v. Mallappa, (AIR 1964 SC 510), the Supreme Court, after analysing the various decisions and the texts upheld the validity of the gift executed in favour of his daughter by the father. The Supreme Court observed that the Hindu law texts conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition. That right was lost by efflux of time, But it became crystallised into a Alienation of Hindu Joint Family Property a moral obligation and it continues to subsist till it is discharged. Marriage is only a customary occasion for such a gift, but the obligation can be discharged at any time, either during the lifetime of the father or thereafter. It is not possible to lay down a hard and fast rule, prescribing the reasonable quantitative limits of such a gift as that ‘would depend on the facts of each case. In later cases, the Supreme Court has confined the scope of the words “Pious purposes” and refused to bring, ‘within its ambit any other relation, The father-in-law was held not competent tomake a gift toa daughter-in-law of immovable property atthe time of the marriage. Third Case: Gift by Karta of Joint Family Property The powers of a managing member of a joint family are governed exactly by the same principles as those applicable to a father coparcener. Of course, his personal debts are not binding upon his coparceners as those ofa father are upon his sons and therefore alienations made by him to pay such debts do not bind them, Accordingly, the karta is also entitled to make a gift of the ancestral property, movable or immovable (a) within reasonable limits and (8) for pious (ie. religious or charitable) purposes. There is a distinction between alienation made in the discharge of indispensable duties and gifts of small portions of property for pious purposes. In former, the karta’s powers are unlimited, and he may alienate the entire property, while in the latter case, he can alienate only a small portion of property, ie. within reasonable limits, ALIENATION BY WILL A will is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death, Wills were wholly unknowa to classical Hindu law. Apparently, there ‘was no name for them cither in Sanskrit or in the vernacular languages. Under the classical Hindu law, no coparcener including a father (except & sole surviving coparcener in some situation) was empowered to dispose of his undivided share under a will, even with the consent of the other coparcener. In fact testamentary disposition was opposed to the basic incidents of coparcenery. The Hindu Succession Act, 1956 specifically empowers an undivided coparcener to make a testamentary disposition of his undivided interest in the Mitakshara Coparcenery. Therefore, after 1986, any coparcener can make a valid Will with respect to his undivided share in the coparcenary property, in favour of ‘anyone’92 Family Law- Il Where a coparcener bequeaths his undivided interest in a Mitakshara coparcenary, on his death, the doctrine of survivorship would no longer apply to his interest. If he has bequeathed his share to a stranger, the latter will step into his shoes and would be entitled to ask for partition and specification of the share as it stood at the time of the death of the coparcener. As a Will is operative only from the death of the testator, the Karta can alienate the interest so bequeathed, during the life time of such coparcener, for a legal necessity ALIENATION BY COPARCENERS So far we have discussed the special powers of alienation of joint family property by karta/manager or father. In these cases, one member (karta/ ‘manager/father) professed to bind the other coparceners, by alienating their shares as well as his own. Now we will examine right of other coparceners toalicnate joint family property. This can be discussed conveniently in the form of following three cases: (1) Alienation by all coparceners as one body. 2) Alienation by sole surviving coparcener. (8) Alienation by individual coparcener. ALIENATION BY ALL COPARCENERS AS ONE BODY fall the coparceners are adult they can alienate the joint family property bby mutual consent according to their intents and purposes. If the alienation is for a legal necessity of the family or for the benefit ofthe estate, it will bind the non-coparcener members also, Ifthe alienation is otherwise, it will ‘operate subject to their rights in that property. The ownership of the joint family property vests in the coparceners. Though the other members ofthe family do have interest in that property, viz. the right of maintenance, yet they do not possess ownership rights in the property: Nor can they restrain the coparceners from exercising the rights of ownership ‘on this property. That is why joint family property is also known as ‘coparcenary property. Ifa coparcener is a minor, he cannot give his consent. In this case the alienation made with consent ofall the major coparceners will not bind the whole joint family property. It will affect the consenting coparceners. This, matter will depend also upon the factor whether a coparcener enjoys the right to transfer his own interest in the joint family property. The law on this subject is different at different places. Alienation of Hindu Join Family Property 93 ALIENATION BY SOLE SURVIVING COPARCENER A person who for the time being is the sole surviving caparcener, is entitled to dispose of the coparcenery property, as ifit were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. Such an alienation cannot be challenged by a subsequently born or adopted son. When the joint family property passes into the hands of the sole surviving caparcener, it assumes the character of separate property, so long as he does not have a son, This power of sole surviving coparcener can be curtailed only in some specifi situations. After the coming into force of the Hindu Succession Act, he cannot alienate the stiare of the widow vested in her by virute of operation of Section 6 of the Act. Where a female member has aright of ‘maintenance out of this property, the property cannot be sold without securing her maintenance rights, and ifthere is a necessity, such female ‘can enforce her right against this property, Such alienation can be challenged by a subsequently born coparcener, provided he was in the womb of his mother at the time of alienation, and not otherwise, ALIENATION BY INDIVIDUAL COPARCENER ‘Alienation by an individual coparcener of his undivided interest in the coparcenary property is one of the most controversial and contentious issue because of the tripartite tussle between principle of Mitakshare law, Section 44 of the Transfer of Property Act and equitable rights of the alienee for consideration. Community of interest and unity of possession 0° all the coparceners is the basic characteristic of the Mitakshara school. A coparcener may be said to own interest in the whole property’ in unison with all the other coparceners. The result of this nature of joint family property is that a single coparcener has no right individually to alienate the joint property wholly or partly. ‘The general rule of inalicnability of the coparcenary property was with respect to the coparcener’s undivided interest in the coparcenary property only, and did not prevent the coparcener from selling his share after demarcating it with the help of partition, Where an undivided coparcenee incurred a financial liability by taking a loan or otherwise, he could plead his inability to pay back on the ground that the undivided interest could not b> alienated and in this way the creditors could be put to a disadvantage. ‘These beneficial provisions that were meant to protect the interest of the family members could be misused or exploited by unscrupulous coparceners to their undue advantage and to the disadvantage of the94 Family Law-If creditors or third partics. This rigidity was brokey by courts, initially at the behest of the creditors who wanted repayment of their loan or execution of money decrees obtained by them from the court against the property of the eoparcener (borrower). The courts directed that the maney decree be enforced against the undivided inierest of the coparcener. This was the starting point of judicial permissibility of involuntary alienations of the undivided interest of a coparcener, after a certain amount of conflict. Sale or Mortgage of undivided interest in Bombay, Madras and Madhya Pradesh: According to Mitakshara law as administered in these States, a coparcener may sell, mortgage, or otherwise alienate for value, his undivided interest in a Mitakshara coparcenary property, without the consent of other coparceners. The condition is that he can alienate for consideration. Thus he can transfer his interest by way of sale, mortgage, lease or exchange. The law has grown gradually upon the equity that a purchaser for value has to be allowed to stand in his vendors shoes and to ‘work out his rightby.means of partition. In these areas, a mortgage effected bya coparcener will be valid to the extent of his share and the mortgagee’s right will be unaffected with the death and birth of other coparceners in the family. Sale or Mortgage of Undivided Interest in Bengal, Bihar, Orissa, Uttar Pradesh and Punjab: According to Mitakshara law prevailing in these areas, a coparcener cannot alienate his own undivided interest in a Mitakstiara coparcenary property, even for consideration without the consent of other coparceners. The consent of other coparceners is necessary, even if the alienation is made in favour of a coparcener. ALIENEE’S RIGHTS AND REMEDIES When an alienation (sale/mortgage) of the coparcenary property is within the authority of the alienor, it eannot be set aside and the alienee gets certain rights as per the terms of in respect of that property. If it is an authorised sale, the vendee is entitled to the possession of the property and to the ejectment of the members of the joint family. In case alienation is by way of mortgage, he has all the rights and remedies of a mortage. ‘The alience’s rights and remedies became a contentious issue mainly ‘when the alienation is subsequently challenged by other coparceners or when it is set aside by the court at the instance of other coparceners. The scope of alienee’s rights and remedies in such a situation can be conveniently discussed under the following heads: Alienation of Hindu Joint Family Property 95 1, Right to Joint Possession: There is a difference of opinion on the question whether the alienec has a right of possession of the specific properties alienated to him before he seeks partition. (a) The general opinion is that the alienee Irom @ coparcener is not & tenant-in-common with the coparceners in the family and thus. he is not entitled to joint possession, The reason for nat permitting him to have joint possession with the coparceners is to avoid the introduction of a stranger into the family. If the possession was delivered to him by the alienating coparcener, he can be ejected at the instance of the non-atienating, coparceners. All that the alienee is entitled in such a suit ‘that he is entitled to the share of the alienating coparcener. (b) The Bombay High Court adopted a different approach and gives some discretion to the court in the matter of ejectment of a stranger purchaser. In Bhau Laxman v. Budha Manku, AIR 1926 Bom. 399, the Court laid down three rules: First, if the purchaser is a stranger, and has tot obtained possession, he should not be given joint possession with the other coparceners, but should be left to his remedy of a suit for general partition. Secondly, if the purchaser has obtained possession, the non- alicnating coparceners are entitled o joint possession of the property with him, and if they sue for it, the court must decree joint possession to them. Thirdly, the purchaser in possession need not be ejected in a suit for recovery of possession brought by an excluded coparcener, but can be declared to be entitled to hold (pending a partition) as a tenant-in-common with the other coparceners, The Supreme Court in Manikayala Rao v. Narasimhaswami, AIR 1966 SC 470 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 fias only the right to ask fora general partition of the joint family property. 2. Right to Partition: A coparcener may alienate either his undivided share in the whole of the family property or his undivided share in certain specific family property or the whole of a specific item ofthe family property Inall these cases, the alienee has merely an equity to stand in his vendor’s shoes and to work out his right by means of a general partition. He is entitled to only that interest of the coparcener, which the latter had in the property on the date of the alienation 3, Right to Sue for Partition even after the Vendor’s Death: The. purchaser ofthe interest of a coparcener is not bound to sue for partition in the lifetime of the coparcener. He may sue after his death. The right which he has to partition is not lost by the death of the coparcener. a declaration | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |%6 Family Law-lt 4, Share to which Purchaser is entitled on Partition: The share to whtich an alienee is entitled on a partition is the share to which the alienor was entitled at the date of alienation, and not at the date when the alienee seeks to reduce his interest into possession. His interest or share is not subject to fluctuations by births and deaths after the alienation. But what are the properties available for partition ie. as to the actual items of the property in which the purchaser is entitled toa share can be ascertained only by the state of joint property atthe time of the suit for partition, and not the alienation. 5, Equitable Right of the Purchaser on Partition: Where instead ofa general undivided interest, the coparcener alienates a specific item out of the coparcenary property or a share in a specific property, the alienee’s remedy will be merely to sue for a general partition and he cannot claim that very property or a share in a specific property. The reason why he ‘cannot claim so is that it was the undivided interest that was alienated to him and the alienge cannot, therefore, have any bettcr right than what the coparcener had in the property. The alienee, however, has on a general partition an equitable right to the allotment of that specific property, if it could be done without prejudice to the interests of the other coparceners oF ifthey consent to it he may be allotted that portion. Where itis inequitable, the purchaser has the right to recover from the alienot a property of an equivalent value out of the properties allotted to the alienor for his share in substitution of the property purchased by him. 6. Right to Mesne Profits: The alienee is entitled to the possession ofthe property he has purchased with effect from the date when the specific allotment was made in his favour. Therefore, he cannot ask for mesne profits for the period between the sale to him and the allotment to him. The reason is that he cannot claim any interest higher than the alienor coparcener who has no right to ask for the past accounts. Also because the alienee has not got a vested interest in the property purchased. He gets only equity to compel partition. However, this is true only when the family is undivided. But where the coparceners are divided in status, though property isnot partitioned and distributed among them by metes and bonnds, the purchaser can get a decree for mesne profits 7. Right to Impeach Previous Alienations: The purchaser of the entire interest of the whole family in the coparcenary property, which is alienated. is entitled to challenge the previous alienation in respect of such property Alienation of Hindu Joint Family Property ” 8. Alienee takes Subject to Equities: The transferee of a coparcener’s interest takes the property subject to ali the charges, encumbrances and liabilities affecting such property or thé coparcener’s, interest therein. But where the alienation is itself in discharge of binding, debts, the alienee cannot, ina suit for partition, be saddled with other Family debts. ; All the above rights and remedies of a transferee of a coparcener's undivided interest apply mutatis mutandis to a mortgage of @ joint famly property, LEADING CASE LAWS Dev Kishan v. Ram Kishait; AIR 2002 Raj. 370 (Meaning of Legal Necessity and Antecedent Debt) io: Debt incurred for the marriage of a minor being unlawful and against pic policy cannot be a legal necessity. The antecedent deb to pay off which an alienation of th joint property is made must be antecedent in fact as well as in time, i.., the debt must be truly independent and no part of the transaction impeached.) Facts: Plaintiffs and defendant No. 2 were members of Hindu jeint family. Defendant no, 2, who was the karta of the family twyice morgage the property in question to appellant/defendant no. | for a consideration o Rs, 500/- and Rs. 900/- respectively for the necessity of marriage-of his three minor children. Later a sale deed was executed by the karta of the same properties in favour of defendant no. 1 for @ consideration of Rs. 2000/- though the value of those two houses was about Rs. 8000/-. The plaintiffs instituted the suit with the prayer that the sale deed bedectared null and void as there was no legal necessity for mortgaging as well as for selling the properties in question, and if, at the most, properties ‘were sold for the illegal and immoral purposes, for that the plaintiffs arenot bound. The suit was contested by the appellantidefendant no. | that kata of the family took loan from him for the legal necessity of the family or those loans should be termed as antecedent debt and for that, the plaintifts were bound to pay. Legal Issues 1. Whether the taking of the debt by the karta of the family for the marriage of a minor member of the family is a debt incurred for a legal necessity ois for illegal purposes?98 Family Law-It 2. Whether the further debts incurred and sale of mortgaged properties effected by the karta for satisfying the loan taken on earlier mortgages for the marriage of a minor member should be considered to have been incurred for the legal necessity of satisfying antecedent debt? Observations On the first substantial issue, the Court held that there is no doubt that the marriage expenses of male coparceners and of the daughters of coparceners can be termed as legal necessity. Sut in the present case, since the debt was taken for the purposes of marrying his minor daughters and asthe child marriage is prohibited under the prohibition of Child Marriage Act, 1929, therefore such debt is opposed to the public policy and cannot be termed as lawful debt and alienation on that ground cannot be regarded as a lawful alienation binding upon the minors. The expenses incurred in connection with the marriage of a child cannot constitute legal necessity, On the second substantial issue, the Court observed that the “antecedent debt” means antecedent in fact as well as in time, ie, the debt must be truly independent of and not part ofthe transaction impeached, A borrowing made on the occasion of the grant of a mortgage is not an antecedent debt, The father of joint Hindu family may sell or mortgage the Joint family property inctuding the son’s interest therein to discharge a debt contracted by him for his own personal benefit, and such alienation binds the sons provided—(a) the debt was antecedent to the alienation, and (b) it was not incurred for an immioral purpose. In the present case the debt was hot taken for the purposes of legal necessity of the family. The debt taken for the purpose of marrying minor children, which were not lawful, was not a lawful debt. Thus, the present and subsequent transactions of mortgage anid sale cannot be regarded as transaction for payment of antecedent debt. taken for the welfare of the Hindu joint family and furthermore, the debt was not taken for the payment of antecedent debt, in these circumstances, the sale for satisfying the earlier mortgage debt was rightly held to be void Against the interest of the plaintiffs. Accordingly, this appeal is dismissed, Arvind v. Anna; (1980) 2SCC387 IRatio: Adequacy and proper use of consideration received is an important factor for validating an alienation.} Alienation of Hindu Joint Family: Property 99, Facts: The facts of the ease are not in dispute. There was a mortgage ‘ofa land by the karta of a Hindu joint family in 1930 in favour ofthe father ofthe appellants for a sum of Rs. 1600. In 1933, the karta executed another deed of mortgage in favour of the sume mortgagee for a sum of Rs. 1000 in respect of 10 items of land including the land previously mortgaved. Both the mortgages were possessory mortgages but itis clear from the eviderwe that the land was leased back to the mortgagor for a stipulated rent. The arta died in 1934 leaving behind him three sons (an adult and two minors). In 1935, the adult eldest son purporting to act as the manger of the joint family and the guardian of his minor brothers executed a sale deed in favour of the same morgagee in respect of four out of the ten items of mortgaged land. The consideration for the sale was Rs. 3050/- which was ‘much more than the whole amount due under the earlier mortgages. As a result, six of the items which were mortgaged were released from the burden of the mortgages. On attaining majority, other two sons of the original mortgagor filed the suit for a declaration that the sale deed was not for legal necessity and not for the benefit of the estate and therefore, ‘not binding on them. They prayed that joint possession of their two-third share may. be given to them. The trial court found that there was legal necessity for the sale to the extent of Rs. 2600 only, that the consideration of Rs, 3050 for the sale was inadequate as the lands were worth about Rs, 4000, that there was no such compelling pressure on the estate as to justify the sale and therefore, the sale was not for the benefit of the family and hence not binding on the two plaintiffs. The Assistant Judge found that there was no evidence to show that the defendant made any bona fide enquiry to satisfy himself that there was sufficient pressure on the family Justifying the sale. Issues 1. Was the sale for legal necessity and benefit of the family? 2, Was the consideration grossly inadequate? 3. Had the defendant done the mandatory and bonafide enquiry regarding legal necessity of the foinily? 4. Is it necessary to account for the whole amount of consideration? Decision: On the first issue, the Court held that the facts narrated _tbove clearly show that cut of the consideration of Rs. 3050) for the sale there was undoubted legal necessity to the extent of Rs. 2600/- (i.e, loan Amount), the total amount due under the two deeds of mortgage executed hy the father of the plaintiffs. Out of the ten items of land which were mortgaged. only four were sold and the remaining six items were released100 Family Law i from the burden of the mortgages. The family was also relieved from the burden of pay ing rent to the mortgagee under the lease back. Surely allthis was for the benefit of the family. (On the second issue, the Court held that irrespective of the fact that the value of the land sold under the deed of sale was found by the courts below to be Rs. 4000/-, it can not possibly be said that the price of Rs. 30001- was grossly inadequate. It has further to be remembered that there ‘was continuous dealings between the family ofthe plaintiffs and the family of the defendant, over a long course of years, In those circumstances itis, impossible to agree with the conclusion of the courts below that the sale was not binding on the plaintiffs On the third issue, the Supreme court observed that the Court below appeared to think thet notwithstanding the circumstance thet there was legal necessity toa large extent it was incumbent on the defendant to establish that he made enquiry to satisfy himself that there was sufficient pressure fon the estate which justified-the sale. We are unable to see any substance in the view taken by the courts below. When the mortgagee is himself the purchaser and when the greater portion of the consideration went in discharge of the mortgages, we do not see how any question of enquiry regarding pressure on the estate would arise at all. On the fourth issue, the Court observed that where ancestral property is sald for the purpose of discharging debts incurred by the father and the bulk of the proceeds of the sale is so accounted, the fact that a small part of the consideration is not accounted for will not invalidate the sale, In Gauri Shankar v, Jiwan Singh (AIR 1927 PC 246), it was found that Rs, 500/- out of the price of Rs. 4000/- was not fully accounted for and that there ‘was legal necessity for the balance of Rs, 3500/-, The Privy Council held that ifthe purchaser had acted honestly, ifthe existence ofa family necessity for a sale was made out and the price was not unreasonably low, the purchaser was not bound to account for the application of the whole of the price, The sale was upheld, Hunooman Pd. Pandey v. Mussumat Babooee (1856) 6 MIA 393 (Note: The Privy Council has delivered a landmark judgment in this case, first regarding limitation on the power of karta/guardian to alienate joint family property and second (which is more important) regarding burden of proof that the transaction is entered into by.the’karta/guardian is for a legal necessity or for the benefit of the estate of the family. This Alienation of Hindu Joint Family Property lot case casts a great duty on the alienee regarding burden of proof but at the same time provides a lot of relief to.a bona fide and honest alienee who has made a sincere effort to enguire about the actual pressure onthe estate, the danger to be averted or the benefit to be conferred upon it.] Facts: The defendant/appellant, a banker, was in the business of making, ‘advances and loan to the land holders. Raja Singh died shortly after certain Joan transaction, leaving an only son, Lal Singh, an infant, whereupon bis widow assumed the proprietorship of the estate of her ate husband and the guardianship of her infant son. The widow ie, mother of minos/infant Lal Singh execuited certain usufructuary morigage in favour of the appellant. This transaction of mortgage formed the subject of the present suit. On attaining majority, Lal Singh filed a plaint against the appetlant for possession of the land and for setting aside the mortgage and to oust the appellant. Lal Singh having died Mussumat Babooee, the respondent, was admitted by the Court to prosecute the suit as guardian of the only infant son and heir of Lal Singh. The plaint alleged that the guardian/mother of the plaintiff had managed his affairs during his minority and effected encumbrances on the plaintiff's property and those mortgaged properties ‘were component parts of plaintiiff’s ancestral Raj, and inalienable by the act ofa guardian, ie, she was incompetent to make such a transfer of the property as had been made. Legal Issue (1) Whether the mother/guardian was competent undei Hinuu law, as the registered proprietor of the family estate and curator of the infant's property, to charge ancestral estates by way of mortgage, in consideration of the advances made for the benefit of the minor's estate, to prevent 2 sequestration and probable confiscation due to non-payment of Government Malgoozaree (revenue)? (2) Is it true to say that the burden of proof lies on the alienee to show that the transaction entered into by the Karta is for a legal necessity or for the benefit of the estate of the femily? If yes, then what is the nature and extent of that burden? Is the allienee required to see that every bit of consideration which he advanced is actually applied to meet the family necessity? (3) What is the position of those alienee who has acted honestly and with due caution, butis himself deceived? Observations: The judgment inthis case became a lighthouse to guide all those who had limited powers of disposal over anv property. Itspellec102 Family Law-It the scope of their authority to alienate that property by an act inter vivos. ‘Their Lordships of the Privy Council answered the above contentious issue by laying down the following rules (Modern Hindu Law, R. Nagpal, 2008 end. P, 614-615) 1. The guardian/manager of'a minor has a limited and qualified power to charge his estate. The power can be exercised rightly only in a case of legal necessity or for the benefit of the minor's estate. This fact has to be proved 2. The lenderlalienee/transferee has 2 mandatory duty to enquire’ into the necessities for loan and satisfy himself to his best that the guardian. is acting in the case for the-legal necessity or for the benefit of the minor's estate, If he makes such enquiries and acts honestly, the real existence of 1 sufficient and reasonable necessity is not a condition precedent to the validity of the charge in his favour. 3. A bonafide creditor should not suffer when he has acted honestly and with due caution, but is himself deceived 4. The bonafide lender is not affected by the previous mismanagement of the estate. He is concerned only to enquire about the actual pressure on the estate, the danger to be averted or the benefit to be conferred upon it in that case. But if the danger to property has arisen from any misconduct to which the lender is a party, he cannot take advantage of his own wrong to support a charge jn his own favour against the minor. Where he acts bonafide his position is not affected by the fact that if the minor's property were properly and better managed, the danger or necessity would have not arisen. 5, It is not obligatory for the lender to see to the end use of money. He can see that only when he enters upon the management of the property ‘That he is not entitled to, becuase then it would mean that he should take upon himself the guardianship of the minor's property 6. The guardian/manager/karta is under an obligation to make an alienation as @ prudent man, but the mere creation of @ charge on the minor’ property for securing properly a debt cannot be viewed as imprudent management because money to be secured on any estate is likely to be obtained on easier terms than a loan which rests on mere personal security. Decision: The recorded fects in the instant case shows that guardian! mother was the manager of the Raj during the infancy of Lal Singh, and that all her acts and deeds are recognised in the Revenue Department, During her management, with the object of saving the estates, of paying Alienation of Hindu Join Family Property 103 the debts of her predecessors, the mortgage bond was executed. Moreover. a bond of this nature does not extinguish the title of the infant, it follows then, as a matter of justice and equity, that the mortgage bond is valid and of effect. ight to Obstruct Alienation of Joint Family Property by Karta! Sunil Kumar v. Ram Prakash; AIR 1988 SC 576 (Ratio: Where the karta is contemplating the transfer ofthe joint family Property for a permitted purpose, as ascertained by him, the coparceners cannot prevent him from transferring his property by seeking a temporary * permanent injunction from the court. Managing the joint family property is one of the inherent powers of the karta and even the court is not empowered to encroach upon this power, unless the validity of the transfer is challenged before it] Facts: The defendant, Ram Prakash, es karta of Hindu joint family, executed an agreement to sell certain house property and received a sum 4s earnest money on the date of agreement. Ram Prakash later refused to execute the sale deed. Thus, a suit was filed for specific performance of the agreement to sell. Sons of Ram Prakash made an application for being impleaded in this suit which was dismissed as they were held to be unnecessary parties to the suit. Thereafter the three sons of defendant instituted a suit for permanent injunction against their father to restrain him from alienating the house property stating inter alia that the said house was JEP and the proposed sale was neither for legal necessity nor for the benefit of the joint family estate, nor it was an act of good ‘management to sell the same without the consent of the plaintiffs. Thus the relief sought for is to restrain by permanent injunction the karta of the Hindu joint family from alienating the house property in question Legal Issues 1, Whether interference of the court (through a suit for permanent junction) could be sought by a coparcener to restrain the karta of Hindu joint family from alienating coparcenary property? 2. A coparcener has as much interest as that of karte in the coparcenary property. The right of coparcener in respect of his share in the ancestral property would remain unimpaired, if the alienation is not for the legal necessity or for the benefit of the a4, ‘cuss the remedies available to coparceners to protect their ‘corresponding share when the Karta wants to sell the same for legal Necessity without consulting them, [DU, LL.B; 2008)ia Faniity Law-lt estate. When these two rights are preserved to a copareener, why shoutd he not prevent the karta from dissipating the ancestral Property by moving the court? Why should he vainly wait till the purchaser gets title to the property? : Lower Court’s Decisions: The Trial Court held that it s well-settled law that karta of the Hindu joint family cannot alienate the coparcenary property without legal necessity and coparcener has right to restrain the Karta from alienating the coparcenary property ifthe sale is without legal necessity and is not for the benefit of the estate. The house property is question was the ancestral property and the father ofthe plaintiffs was not ‘competent to sell the same except for legal necessity or forthe benefit of the estate, The lower appellate Court held that a coparcener has no right to smaintaine suit for permanent injunction restraining the manager or karta from alienating the coparcenary property and the coparcener has the right only to challenge the alienation of the coparcenary property and recover back the property after alienation has come into being. The plaintiff preferred second appeal which was summarily dismissed by the High Court. The plaintiffs, by special leave, have appealed to this court. Supreme court's Observations 1. Hindu Joint Family, Coparcenary and Joint Family Property: ‘Those who are of individualistic attitude and separate ownership may find it hard to understand the significance of a Hindu joint family and joint property. But its there from the ancient time perhaps, asa social necessity, ‘The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like, [tis anaerower body than Hindu joint family. [tis well sited that in a Hindu joint family, a son acquires by birth an interest equal to that of the father in ancestral property. 2. Manager (Karta) and his powers: In a Hindu joint family, the karta or manager occupies a unique and vital position which is sui generis. Itis nots ifanybody could become manager of a Hindu joint family. As a general rule, the father of a family, if alive, and in his absence the senior ember ofthe family is atone entitled to manage the join family property. He may consult the members of the family and if necessary take their ‘consent to his action but he is not answerable to each one of them. he gPONeT ofallenation: The managing member of kara has tony \e power to manage but also power to alienate joint family pr as to bind the interests ofboth adult and minor coparcenrs ithe propery provided the alienation is made for legal necessity or for the benefit of the Alienation of Hindu Joint Family Property 10s estate or for meeting an antecedent debt. It is true that a coparcener takes by birth an interest in the ancestral property, but he is nat entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the Karta. It would be for the karta to consider the actual pressure on the joint family estate. It would be for him :0 foresee the danger to be averted. And it would be for him to examine as to how best the joint family estate could be beneficially put into use to sub serve the interests of the family. A coparcener cannot interfere in these acts of management. Apart from that, a father-Karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. 4. Burden of Proof (Alienee’s duty): Although the power of disposition of joint family property has been conceded to the manager of joint Hindu family, the law raises no presumption as to the validity of his transactions. His acts could be questioned in the court of law. The other ‘members of the family have a right to have the transaction declared void. not justified. When alienation is challenged as being unjustified or illegal é would be for the alienee to prove that there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity. It would be for the alienee to prove that he did all that was reasonable to satisfy himself as to the existence of such necessity. If the alienation is found to be unjustified, then it would be declared void. {Fthere ino such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in the alienated property. 5, Right to obstruct alienation could not be considered as incidental to the right to challenge alienation: No doubt the law conters arighton the coparcener to challenge the alienation made by Karta, but that right is not inclusive of the right to obstruct alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is right to interfere with the act of management of the joint family affairs. ‘The coparcener cannot claim the latter right and indeed, he is not entitled to it. 6. Suit for permanent injunction is not maintainable: In a suit for permanent injunction under Sectior€ 38 of the specific Reliel Act by a ‘coparcener against the father or manager of the joint Hindu family property restraining the karta from alienating the coparcenary property, an injunction cannat be granted as the coparcener has got equally efficacious remedy to get the sale set aside and recover possession of the property. The106 Family Law-It coparcener has adequate remedy to impeach the alienation made by the karta in a suit subsequent to the completion of the sale. If it is held that a suit for permanent injunction would be competent the result would be that each time the manager or the karta wants to sell property, the coparcener would file a suit which may take number of years for its disposal. The legal necessity or the purpose of the proposed sale which ‘may be of pressing and urgent nature, would in most cases be frustrated by the time the suit is disposed of, Legally speaking, unfess the alienation in fact is completed there would be no cause of action for any coparcener (o maintain a suit because the right is only to challenge the alienation made and there is no right recognized in law to maintain a suit to prevent the proposed sale. The principle that an injunction can be granted for preventing waste by a manager or Karta obviously would hot be applicable to such a suit because the proposed alienation for an alleged need or the benefit of the estate cannot be said to be an act of ‘waste by any stretch of reasoning, We, of course, make itclear that in case ‘of waste or ouster an injunction may be grantéd against the manager of the Hindu joint family at the instance of the edparcener. But nonetheless a blanket injunetion restraining permanently from alienating the property of the Hindu joint family even in the case of legal necessity, cannot be granted. Power of Karta to make gifts of immovable Property’ Guramma Deshmukh v. Mallappa; AIR 1964 SC 510 Facts: Chanbassappa, a sole surviving coparcener, possessed a large extent of immovable property, worth lakhs. Few days before his death in January, 1944, he executed gift deeds in favour of a relative and his widowed daughter in respect of immovable property worth Rs, 1500 and Rs. 3000 respectively. At the time of his death, his wife was pregnant and she gave birth to.a male child in October 1944. The validity of these two gift deeds were challenged and itis said that these two gift deeds were not binding on the family. The High Court agreeing with the learned Civil Judge, set aside the gifts on the ground that the donor had no power to make a gift of the family property. The legal representatives of the defendants seeks to sustain the validity of the said two gifts. Q.5. Short Notes : Gift of immovable joint family property in favour of ‘aughter by the kartafather. La (Or Can the Karta of the Hindu joint family make a git of hindu joint farnily immovable property to his married daughter after 10 years of hher marriage without the consent of the other coparceners under Classical Hindu law? Alienation of Hindu Joint Family Property 107 Issues (1) Can it be said that a gift to a relative out of love and affection is a gift for “Pious purposes” within the meaning of that expression in Hindu law? (2) Whether the gift deed by father in a small bitin favour of widowed daughter for maintenance, out of huge joint family immovable property valid under Hindu law? Observations: Chanbassappa was a sole surviving coparcener at the time of the transaction. But at the time of alienation a son was conceived, hence, validity of transactions at that time will be governed by power of the father-karta to make gifts of immovable family property under Hindu law Gift of Immovable property to stranger/relative: In the first gift deed the donee was described as donor's relative. The gift was made for services rendered by the donee to the donor during latter's lifetime and out of love and affection for the donee. What we are concerned with in this, case is the power of a manager to make a gift to an outsider of a joint family property. The scope of the limitations on that power has been fairly well settled. Hindu law sanctioned gift to strangers by a manager of a Hindu joint family of a small extent of property for pious purposes. But no authority went so far to sustain such a gift to a stranger however much the donor was beholden to him on the ground that it was made out of charity. It must be remembered that the manager has no absolute power of disposal over Hindu joint family property. The Hindu law permits him to do so only within strict limits, We cannot extend the scope of the power on the basis of the wide interpretations given to the words “pious purposes” in Hindu law in a different context. In the circumstances. we hold that a gift toa stranger of a joint family property by the manager of the family is void, Gift of Immovable Property to Daughter: Chanbassappa created a life interest in a property of the value of about Rs. 5,000 in favour of his widowed daughter. Under the deed the daughter was to enjoy the property during her lifetime and thereafter it would go to the member of the family named in the deed. Iis in evidence that the family possesses a large extent of property worth lakhs. ‘The legal position may be summarized thus: “The Hindu law texts conferred a right upon a daughter or a sister, as the case may be, to have a share in the family property at the time of partition. The right was lost by efflux of time. But it became crystallized into a moral obligation. The father cor his representative can make a valid gift, by way of reasonable provision108 Family Law-I for the maintenance of the daughter, regard being had to the financial and other relevant circumstances of the family. By eustom or convenience such gifts are made at the time of marriage, but the right of father or his representative to make such a gift is not confined to the marriage occasion. It is a moral obligation and it continues to subsist till it is discharged. Marriage is only a customary occasion for such a gift. But the obligation can be discharged at any time, either during the lifetime of the father or thereafter. [tis not possible to lay down a hard and fast rute, prescribing the quantitative limits of such a giftas that would depend on the facts of each case, regard being had to the overall picture of the extent of the family estate, the number of daughters to be provided for and other paramount charges and other similar circumstances. The validity of the gift depend on the power of the father to make a gift and the reasonableness of the gift so made. If once the power is granted and the reasonableness of the gift is not disputed, the mode or timing of conferring gift cannot make the gift an invalid one.” Decision: In the present case, the gift made by the father to the daughter was within his right and certainly reasonable. The family had extensive properties. The father gave the daughter only a life-estate in @ small extent of land. Thus, the gift to the daughter is valid R. Kuppayee v. Raja Gounder; (2004) 1 SCC 295 Facts: By a registered settlement deed, the respondent father settled an extent of 12 cents out of 3 acres of ancestral family’ property in favour of his married daughters (the appellants). The gift included a tiled house standing on the gifted land, As per recitals in the settlement deed, the settlement was made by the respondent out of natural fove and affection for the appellants and the possession of the property was handed aver on the day the settlement deed was executed. After nearly five years, the respondent and his associates asked the appellants to vacate the property and tried to trespass into the property. The appellants thereupon filed a suit seeking relief of restraining the respondent and his associates from interfering With the appellants” peaceful possession and enjoyment ofthe suit property in any way by way of a permanent injunction, or. For grant of relief deemed fit in the circumstances of the case. The respondent resisted the suit took the stand that he had not executed any settlement deed, that his son-in-law, i.e, husband of Appetlant had purchased a house site and the respondent was taken to the Sub-Registrar’s office to witness the sale deed. That he was used to take liquour and taking advantage of his addiction to liquor the Alienation of Hindu Joint Family Property 09 appellants and their respective husbands fraudulently by mistepresentation instead got the sale deed executed from him and that the property in dispute being. joint Hindu family property consisting of himself and his son could not be gifted urider any circumstances. The trial court accepted the ‘submissions of the respondent and dismissed the suit, The order of the trial court was affirmed by the first appellate court as wet! as the High Court Issues: Whether the gift/settlement made by the father in favour of his married daughters of a reasonable extent of immovable property out of the joint Hindu family property is valid? Held: The position in Hindu law is that whereas the father has the power to gift ancestral movables within reasonable limits, he bas no such power with regard to the ancestral immovable or coparcenary property He can, however, make a gift within reasonable limits of ancestral immovable property for “pious purposes”. Though the alienation must be by an act inter vivos and not by will, but the extended meaning given to the words “pious purposes” enables the father to make a gift of ancestral immovable property within reasonable limits to a daughter at the time of her marriage or even long after her marriage. However, the ‘extended meaning has not been extended to the gift made in favour of other female members of the family. Question as to whether a particular gift is within reasonable limits or not has to be judged avcording to the status of the family at the time of making a gift, the extent and total value of the property owned by the family and the extent and value of the gifted property and so on. Simply because the gifted property is ahouse, it cannot be held that the gift made was not within the reasonable limits However, if, on facts, itis found that the gift was not within reasonable limits, such a gift would not be upheld, No hard and fast rule prescribing quantitative limits of such a gift can be Jaid down, The answer fo such @ question would vary from family to family. Tt was for the respondent to plead and prove thatthe gift made by the father was excessive or unreasonable, keeping in view, the total holding of the family. In the absence of any pleadings or proof on these points, it cannot be held that the gift made in this case was not within the reasonable limits of the property held by the family. The respondent has failed to plead and prove that the gift made was to an unreasonable extent, keeping in view, the total holding of the family. The total property hele by the family was 3 acres. 12 cents would be approximately 1/26th shareLo Family Ln It ofthe total holding, The share of each daughter would come to 1/S2nd oF I 26th share of the total holding of the family, which cannot be held to be cither unreasonable or excessive under any circumstances. Further, the finding of the trial court and the High Court that the respondent was taken to the Sub-Registrar’s office to be a witness to a sale deed by his sons-in- law whereas a deed of settlement/gift was got executed from him, was on misreading of evidence and being perverse, the same cannot be sustained in Jaw, Appeal allowed, CUT TE oea mess ‘Warnings: Before attempting to solve the problems related to this, chapter, you must ensure that you have erystal clear objective understanding about the following Seven legal issues: (@) Law relating to power of alienation of karta of joint family property. (2) Law relating to alienation for legal necessity. (3) Law relating to alienation for benefit of estate. (4) Law regarding burden of proof of existence of legal necessity or benefit of estate (S) Law relating to gift of undivided coparcenary interest in the joint family property, (6) Law relating to the validity of a interest in the joint family property (7) Law relating to rights, duties and remedies to alienee. of undivided coparcenary A. Law relating to power of alienation of karta of Joint family property (1) In case of Hindu joint family property, the competence of a Hindu to alienate is determined by his status in the Hindu joint family. Although no individual coparcener, including the karta, has any power to dispose of the Joint family property without the consent of others, itis recognized by the Dharmashashtra (Mitakshara text) that in certain circumstances, any member of the family has power to alienate the joint family property. These three exceptional circumstances are: (® Apatkale (in the time of distress). ii) Katumbarthe (for the sake of the family). (iii) Dharmarthe (For the performance of indispensable duties) Alienation of Hindu Joint Family Property nt (@) Above Legal position has undergone modification in two respects. First, the power can be exercised only by the karta. Second, the joint family property can be alienated for the following three purposes only: (® Legal Necessity. Gil) Benefit of Estate. (iii) Performance of religious and indispensable duties. (3) Alicnation is the most important and most controversial power vested in the karta. In the above mentioned circumstances, the karta has special powers to transact about the joint family property without the consent of others coparceners. These powers are implied and he is not, required to obtain the consent of all the other coparceners every time. B. Law relating to alienation by karta for “Legal Necessi (1) Meaning: The concept of legal necessity in Mitakshara refers to Apatkale. However, this is a very narrow conception of legal necessity. Necessity is not to be understood in the sense of what is absolutely indispensable but what according to notions of @ Hindu family would be regarded as reasonable and proper. (2) Essentials: The Supreme Court in Rani v. Shanta Bala, (1970) 3 SCC 722 has observed that legal necessity does not mean actual compulsion, it means pressure upon the estate which in law may be regarded as serious and sufficient. It must also appear that the expenses could not be met out of the income of the family or the resources on hand and there must be some connection between the money advanced and the necessity that is proved. (3) Instances (@ The maintenance of all the members of the Hindu joint family. ii) Marriage expenses: The marriage expenses of the coparceners and of the daughters of the coparceners. Marriage expenses of daughter’s daughter: (see: The Text). Expenses of second marriage of a coparcener: [n Bhagirathi y, Jhoku Ram, ILR (1910) 32 All 475, the Allahabad High Court held that the second marriage of a coparcener can be held to be a legal necessity depending upon the facts and circumstances of the case, But the Madras High Court in Patel v. Lakkireddigar, AIR 1947 Mad 379 have held that itis not legal necessity and if a ‘coparcener wants second marriage it would be in the faimness of things to use his own assets.uz Family: Lawl (¥) Criminal litigation expenses: In Beni Ram v. Man Singh, ILR (1912) 34 All 4, the Allahabad High Court held that it is legal necessity to defend a coparcener provided he is not involved in ‘murder of another coparcener. This is to defend the family honour. in Marudhappan y. Niraikulathan, AIR 1937 Mad 943, the Madras High Court has held that to spend joint family money for assisting the prosecution of a person accused of murder of the member of the family is not a legal necessity because prosecution of murderers is the duty of the State. (4) Case Material: Dev Kishan v, Ram Kishan, AIR 2002 Raj 370 (@ The expenses incurred in connection with the marriage of a child cannot constitute a legal necessity. (i) The antecedent debt to pay off which an alienation of the joint property is made must be antecedent in fact as well as in time, ie., the debt must be truly independent and no part of the transaction impeached. (©) Case Material: Arvind y. Anna; (1980) 2 SCC 387 (i) Where ancestral property is sold for the purpose of discharging debts incurred by the father and to release ancestral properties from the burden of mortgages and the bulk of the proceeds of the sale is so accounted, the fact that a small part of the consideration is not accounted for will not invalidate the sale as itis, for legal necessity and benefit of estate Gi) When the mortgagee is himself the purchaser and when the greater portion of the consideration went in discharge of the mortgages, there is no question of enquiry regarding pressure on the estate would arise at all C. Law relating to alienation by karta for “Benefit of Estate” (Q) Meaning (Defensive v. Prudent transaction): A transaction that brings an advantage to the landed property of the joint family would be covered under the expression “benefit of estate”. It became a contentious issue whether there expression is limited only to defensive transactions or itextends to doing something for the profit or increase of the family property as well. In Balmukund v, Kamlawati, AIR 1964 SC 1385, the Supreme Court has laid down authoritative law in this regard. Fora transaction to be regarded as for the benefit of the estate, it need not be one of defensive character, [tis sufficient, if itis such as a prudent owner would have Alienation of Hindu Joint Family Propert 3 carried out with the knowledge that was available to him at the time of the transaction. Thus. the only reasonable limitation which can be plated on the arta is that he must act with prudence and prudence implies caution ¢s ‘well as foresight and excludes hasty, reckless and arbitrary conduct (2) Various consider: + The following propositions may be made as to the benefit of the estate to decide about the prudence of the karta (i Whether transaction is for the benefit of estate or not is t0 be decided keeping in mind the facts and circumstances existing at the time of transactions and not by looking atthe ultimate result >f one transaction many years later Gi) Whether transaction should be upheld as beneficial to the family depends upon (a) status and position of familys (b) nature of property, ie., movable or irimovable; (© difficulty in managing its (@) nature and quantum of yield from transaction. (3) Instances of Benefit of Estate (Prudent Transactions) (@ In Jagatnarain v. Mathura Das, ILR (1928) 50 Ali 969. the Allahabad High Court held a transaction to be for the benetit ofthe estate when the Karta sold of a property which was 18-19 miles ‘away and purchased a mote accessible property. (i) In Sital Prasad Singh v. Ajab Lal, AILR (1939) Pat 306, the Patna High Court said that Hindu law could not have intende¢ to impose any such restriction on the powers of arta as would virtually disqualify him from doing anything to improve the conditions ofthe family. In this case, the karta alienated property to buy Property (iii) In Pataniappa Chetty v. Sreenath, (1917) 44 14 147, the Privy Council said that it is impossible to define the word “benefit of estate” for all cases. But some instances are: (a) prevention of estate from extinction; (b) defence against hostile litigation affecting it (e) protection ofit from injury or deterioration by inundation, (@) these instances can be extended fo those of like nature by the doctrine of ejusdem generis,