Module 2: ALIENATION OF JOINT FAMILY PROPERTY

Alienation or transfer of property is one of the basic incidents of ownership. The term alienation
here refers to the transfer of property inter vivos, such as by sale, mortgage, gift, licence or
even a lease, including a perpetual lease. Where a property is owned by more than one person,
no single person can acquire the power to alienate the whole of it, unless and until other co-
owners expressly authorise him to do so. With respect to a joint family property, the karta is
entrusted with its management. He does not own the property as a whole and has only an
interest in it just like other coparceners and if all the coparceners give their consent or authorise
him to sell the property, he can do so and such a transfer will be binding on the interests of all
the members and the purpose of the sale will be immaterial. But in this collective ownership,
if one or more of the coparceners without their consent, or express their dissent to such
alienation, or where coparceners are incapable of giving a valid consent due to minority,
ordinarily, the property cannot be transferred. The predominant reason behind this is that till
the family is joint, its property should not be sold to the detriment of its members without their
consent, yet at the same time, an absolute denial of permission to the karta to sell the property
or otherwise transfer it, even when the family needs money, can be disadvantageous to the
family member.
The authorisation for alienation of a joint family property by the karta can be either express or
judicial. It is an express authorisation when besides the karta, all the coparceners in the family
are major and they all consent to the alienation. When some coparceners are major and some
are minors and the karta sells it after taking the consent of only the major coparceners, he is
not expressly authorised to do so, through this can be of help in filling the gaps to a limited
extent while proving legal necessity.
The authorisation is judicial when either the other coparceners do not consent to the alienation
or are minors, but the alienation is for one of the three permitted purposes, as aforesaid. Though
this authorisation has its origin in the Dharmashastras as expounded by the commentaries, it
has been recognised and upheld as valid all along, by the judiciary. The legal empowerment
vests in the Karta to affect a transfer of property if it is for legal necessity, benefits of estate or
for performance of religious duties. In M Harish v. Sindhu AIR 2012 Kant 1, the father as the
karta of the joint family sold the joint family property for legal necessity. His minor son through
the legal guardian filed a suit for partition and possession of the property, contending that the
father sold his share without obtaining the permission from the court as is necessary under the
Guardian and Wards Act 1890. The property sold here to X carried a specific mention in the
sale deed recitals that it was affected in order to repay the loan borrowed from the bank. The
court held here the payment of debts is a part of the obligation of the joint family when it is
incurred towards legal necessities, i.e., for the development of the joint family and the karta is
legally empowered to do so without seeking the permission of the court. The sale was held as
valid.

The karta has a right to manage the joint family affairs and in course of its management, he can
also decide whether there exists a need of the family, justifying an alienation of the property,
or not; what appropriate action is to be taken for the sustenance of the family members or for
the protection and benefit of the property; and to what extent money is to be spent for the
performance of religious and indispensable duties. Though normally in a family, a person who
sells the property that does not belong to him exclusively will consult the other co-owners,
there is no legal obligation on the Karta to either take the consent of the other coparceners or
to even communicate his decision to others.
The validity of an alienation effected by the karta can be challenged only by the other
coparceners who do not give their consent to the alienation. An alienation effected by the karta
cannot be challenged by the other member of the family who is not a coparcener. In Ananda
Krishna Tate v. Draupadibai Krishna Tate AIR 2010 Bom 83, an alienation effected at the
behest of the joint family was challenged by the mother and the wife of the coparcener. It was
held that the mother and the wife do not have the capacity to challenge the alienation as they
are not coparceners. They do not have a right by birth in the coparcenary property. They can
get a share at the time of the partition if and when it actually takes place but till the family is
joint they have a right of maintenance out of the joint family property but cannot acquire an
interest in it.

LEGAL NECESSITY: legal necessity means any necessity that can be sustained in law or
justified in law. With respect to joint family, it means a necessity of the family, with respect to
its members and in certain cases, also with respect to its property that can be justified in law.
The term legal signifies its justification in law, ‘necessity’ connotes the existence of a situation,
a need or a purpose that requires money, and that the family does not presently have that kind
of money or alternative resources, with which the need can be satisfied. For an alienation to be
valid under legal necessity, four things must be present:
 • Existence of a need or purpose, i.e., a situation with respect to family members or its
property that requires money;
• Such requirement is for a lawful purpose, i.e., it is not for an immoral, illegal purpose
or one which is opposed to public policy;
• The family does not possess monetary or alternative resources from which the
requirement can be met, and
• The course of action taken by the karta is such as an ordinary, prudent person will take
with respect to his property.

In Dev Krishan v. Ram Kishan AIR 2002 Raj 370, the karta effected a mortgage, a sub-
mortgage and a sale of two houses belonging to the joint family, worth around Rs. 8000 to
Rs. 9000,for a consideration of Rs. 400 to Rs. 900, which according to him, where to be
utilised for the marriage of his three minor children. The sale deed was executed on the day
the son was getting married. The transfers were held void as opposed to public policy, in
view of the Child Marriage Restraint Act, 1929 (Repealed). The court held that even if the
amount of money was actually spent on the marriage of such children, who were in the age
group of 8-12 years, it cannot be termed as a legal necessity. Secondly, the members of the
family were earning and there was no need to sell the family property to raise the money.
Thirdly, the transfer was grossly undervalued and if there was a need of money, the
transfers should have been affected for an adequate consideration.

BENEFIT OF ESTATE: ‘Benefit’ means an advantage, betterment or to profit. ‘Estate’ means

landed property, while personal estate refers to movable property. Benefit of the estate covered
cases purely of defensive nature such as to protect it from threatened damage and destruction.
Sale of inconveniently situated, encumbered and unprofitable property and the purchase in its
place, of property that is a sound investment, or sale of property that could not easily be
cultivated, for purchase of cultivable land, sale of scattered lands of inferior quality to purchase
a better land can amount to benefit of estate. A karta can alienate a property for the benefit of
the estate.

Religious and indispensable duties: 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 life of a Hindu. These rights and ceremonies start even before birth,
continue during the lifetime, and even after the death of family members. Out of such
ceremonies that extend from the beginning to beyond the end of life, some are considered
indispensable. Joint family property can be alienated by the karta for the performance of
indispensable religious duties. Performance of proper funeral rites is one such ceremonies.
Similarly, the annual shraddha ceremony is so important under hindu calendar, property can
be alienated for the performance of shraddha. Marriage symbolises the starting point of a new
stage in the life of a person. It is described as an essential Sanskar and is mandatory for every
Hindu. Alienation of a joint family property for the marriage of a coparcener and unmarried
daughters and the performance of related ceremonies is covered both under legal necessity and
the performance of indispensable duties.

If all the coparcener do not consent to alienation or some are incapable to give consent owing
to minority, the karta is empowered to alienate the joint family property even without the
consent of the coparcener, but only under certain specified situation as discussed above such
as legal necessity, benefit of the estate or for the performance of certain indispensable duties.
The validity of this alienation can be challenged by any coparcener in a court of law on the
ground that it is not permitted purposes and would not be binding on them. This challenge is
open only to coparceners and not a widow of a coparcener.

Where the validity of an alienation of the joint family property is challenged in a court of law,
the burden of proving that the karta had the competency to alienate the property is on the alienee
i.e. the one in whose favour the transfer has been affected and not on the karta. Where the
alienation by the karta is challenged as invalid, the alienee has to prove that it was either for
legal necessity, benefit of the estate or religious duties. These situations that are essentially
family matters if asked to be proved by the alienee who may be a total stranger, would be
virtually asking him to peep into the family affairs of somebody else, which may be very
difficult for him. The alienee has to not only prove the existence of a purpose, but he also has
to demonstrate that the family had a necessity to transfer the property, i.e. he has to show that
the family did not possess enough alternative financial sources from which the required money
could be raised. The utilisation of the money raised after the transfer is affected has a strong
bearing on the justification of the transfer.
In order to avoid cases of misuse of these beneficial provisions by the family members to the
disadvantage of the alienee, and at the same time, without jeopardising the interest of the
coparceners, the courts relaxed the rules of burden of proof, making them practical, workable
and rational. The alienee has to show that he made reasonable and appropriate inquiries with
respect to the fact that the alienation was for legal necessity, benefit of the estate or religious
duties and that the karta had acted in the interest of the family. Since the karta is not the sole
owner of the property and has limited or qualified powers to dispose of the joint family property,
the nature of inquiries by the alienee should be such as would be made reasonable.

Coparcener’s Powers of Alienation

The ownership of the coparcenary property is with the coparceners, and if there are several
coparceners, the whole of the property can be alienated with their consent. Where there is only
one coparcener, he has the freedom to treat the property as his separate property and dispose
of at his pleasure. This power can be curtailed in some situations. Where a female member has
a right of maintenance out of this property, the property cannot be sold without securing her
maintenance rights. Where a sole surviving coparcener alienates the 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. Where a sole surviving coparcener makes
a Will of the property, and before his death another coparcener comes into existence, the Will
will become invalid as he is no longer a sole surviving coparcener.