svardhimaan@gmailcom Search for Articles Q ‘CONTRIBUTOR @ TATVALEGAL @ anvicle India: Minors' Right To Object To Sale Of Their Share In Joint Family Property 2 mugst 2021 by Ashish anstu ‘Your Linkedin Connections wth ee ators Background: 1.1 Thisartcle examines the right ofa tinorto (a) objec to sale of histher share inthe joint family property, and (b) get the sale made in favour ofa third party purchaser declared void Relevant Provisions Of Law: 2.1. Given below is a brief summary ofthe relevant provisions of the Law which govern matters relating to {adjoint Hindu family, and (b) joint Hindu family property (Schools of awe ‘The laws governing the Hindus, anther right to propery are a follows: Mtakshara Laws and Dayabhaga La ‘The Mitakshars Law applies to the whole af India, except Bengal and Assam, where the Dayabhaga aw applies (0) Join Hind Family: Pursuant tothe amendments brought by the Hindu Succession (Amendment) Act, 2005, ajeint Hindu family consists ofall persons lineally descended from a common ancestor, and includes ther wives and unmarried daughters, (9) Classification of Property (According to the Hindu law, a property may be classified as 1. Joint family property: and 2. Separate propery. (i) While, 2 joint family property isa property in which every member/coparcener ofthe farilyhas a joint interest an joint possession, an is synonymous with coparcenary property, a separate property is 2 property which belongs exclusively to one member of the family, ands synonymous with self acquired property. (4) Management of Joint Family Property: Aproperty belonging 0 ajoint Kindy family is ordinary managed by the father or other senior member of the family and such member of te family is calles the Karta’ ofthe family (©) Alienation ofthe Joint Family Property by the Karta‘The Karta ofa joint Hindu family is entitled to allenate the join family property, with or without the consent of ‘other members ofthe joint family. The alienation ofthe join family property, without the consent ofthe joint amily members, can be made by the Karta Inter alla forthe following purposes: Legal necessiy* andlor Benefic of the estate, ‘The following instances are construed to mean Legal necessiy® Payment of government revenue and of debts which are payable out of the family propery Maintenance of coparceners and ofthe family members oftheir fais; ge expenses of male coparceners and ofthe daughters of the coparceners Performance of necessary funeral or family ceremonies costs of necessary tigation in recovering or preserving the estate; Costs of defending the head ofthe joint amily or any other member against a serious criminal charge; and Payment of debts incurred for family business or other necessary purpose (Burden of Proof of Necessity’ \Wihere the Karta ofa joint farlly sells (or mortgages joint family property, the purchaser forthe mortgagee) is bound to inquire into the necessity for the sale or mortgage, and the burden lies on the purchaser (or the mortgagee) o prove that there was, in fact, a legal necessity or such sale (or mortgage) was made forthe benefit of the estate, ad that he made proper and bona fide engulry as tothe existence of such necessity or benefit and he dd all thax was reasonable to satisfy himself as to the existence of such necessity. 22 Section 38 ofthe Transfer of Property Act, 1882 (TP Act’) deals with the rights ofthe purchaser of a property wno uses reasonable care and acts in good fait, and reads as follows: "Where any person, authorized only under circumstances in their nature variable (o dispose of immovable propery, transfer such property for consideration, alleging the existence of such circumstances, they shal as Between the transferee (00 the one part and the transferor and other person (if any) affected by the transfer on the other part. be deemed to have existed, ifthe transferee, ater using reasonable care to ascertain the existence of such Greumstances, has acted in good fat Relevant Judgements: 3.1 Given below are some relevant judgments passed by varlous courts in India In respect of issues relating to jon Hindu family property, ané Is allenation by the Kata ‘The High Court of Anca Pradesh inthe case of Koutarapu Venkata Chenchayya Versus Koutarapu amalgam and Others* has observed that the Karta of ajolnt Hind family is entitled to alenate for value, joint tammy property, 502s to bind the interest of both adult and minor ceparceners in the property, provided the alienation is made for legal nezessty andor the benefit of the estate’ ‘The High Court of Kerala in the ease of Kumarasivam Mudaliar and Others Versus Ralamanikkam Udoyar and Others* has observed that ‘an allenation made by a coparcener, manager or father in excess of bis powers sable fo be set aside atthe instance ofthe other coparceners. An alienation of ancestral property by the father oF manager ofthe joint family, even when not forthe discharge of antecedent debt for fr the benefit or necessity of the family nly voidable and not void’ ‘The Supreme Court of India inthe case of Raj Kumar Raghubanchreani Prasad Narain Singh Versus Ambica Prasad Singh (Deceased) and Others" abserved that ‘alienation made by the Manager ofthe joint family property without legal necessity and /or for benefit of the estates voidable and not void: ‘The High Court of Gauhat inthe ase of Commissioner of income Tax Versus Gangadha Sikaria Family Trast and Kamakhya Rice Mil Trust" has observed that fa kartaalinates the property ofan HUF Including the interest ofthe minor forthe benefit of the estate or for legal necessity such alienation is Vn Even otherwise, such alienation by the kata, in respect ofthe HUF including the interest of the minor is only voidable and not void... Even ifthe transfer isnot forthe legal necessity and for the benefit ofthe estate, the transfer by the karta willbe only voidable: “The Privy Council the case of Ramanathan Chettiar Versus Viswanathan"? has observed that The purchaser is bound to enquire into the necessities forthe family to sl, and to satisfy himself, as well as ‘he can, with reference tothe parties with whom he is dealing hat the manager is acing n the particular Instance forthe benefit of the estate’‘The High Cour of Anca Pradesh inthe case of B Ranga Rao and Others Versus Venkata Krishna Rao and Others"* has observed that the allenee, in this case, therefore, had to establish on the fllowing two things) the transaction was infact justified by legal necessity or forthe benefit ofthe estate, or (b) they ‘had made reasonable and bona fide enquiries as tothe existence of the necessity and satised Chemselves that the manager was acting for the benefit ofthe esate Observations on Minors’ Right 41 In view of the aforesaid provisions of aw, andthe judgements passed by various Indian courts, we are ‘of the view that while a minor (being a member of ajlnt Hindu family fs entitled to (a) object to sale of| hier share in the joint family propery, and (b) get the sale made in favour ofa third party purchaser declared void, such right of the minor Is subject to (a) imitation provided under the Limitation Act, 1963 Le. Within three () years from the date of attaining majority", and (b) the minor proving thatthe alienation made by the Karta of the jint Hindu family was without any legal necessity and/or for benefit ofthe estate. 42. Notwithstanding the right ofthe minor as aforesaid, a purchaser of the joint farmily property can claim righe ce the Joint family property acquired by hit, IThe sable to prove that (a) there was 2 legal necessity for alienation ofthe joint family property, and/or (b) the alienation of the joint family property was fr the benefit ‘of the estate. Incase, the purchaser fs notable to prove that (a) there was a legal necessity for aenation of the join family property, and/or (8) the alienation of the joint family property was forthe benefit of the estat, the purchaser can stl succeed, i the purchaser is able to prave that he acquired the property (2) upon ‘making reasonable and bona fide inquiry (as mandated by article 242 ofthe Hindu Law), andor () taking all reasonable care and by acting in good faith (as mandated by Section 38 ofthe TP Act), 43. The purchaser can also claim himself to be a bona fide purchaser’ While, the TP Act does not specifically define a'bona fide purchaser it has been held in various judicial pronouncements that "bona {ide purchaser isa person who purchases property (ain good fath and with honest intention, after carrying ‘out reasonable dllgence, (6) for consideration or value, and (¢) without notice of claims ofa third party with respect atte to such property. The High Court of Calcutta in the case of Archit Banya and Biniyog Private Limited Versus Asha Lata Ghosh has observed that The person who wishes to take advantage of the bona ‘de purchaser must show that he cames squarely under the doctrine. The plea of the bona fide purchaser is In the nature ofan excuse... tis the general doctrine that the person who alleges, and the person who hall succeed upon the proof ofthat allegation has the burden of proving that allegation, Since the bona fide ‘purchaser for value without notice alleges so and proposes to take benefit from the establishment of such allegations, it's he who has to prove it and to prove it he must to such satistaction of the Court of equity, a clears the Courts conscience completely Footnotes |. forthe purpose of is Atle we have dicssed one aksara La 2 Article 28 ofthe Mul, Principles of indy Le 2 Article 2340fthe Mla, Principles of indy Law 4 Article 20 ofthe Mul, Princes of Hinds Le Article 201 of he Mull, Princes of Hind Law Article 26 ofthe Mul, Principles of Hinds Law Atle 242 0f he Ml Pices of Hind Low 1.11965 a2 TR S77Gauhat) Originally published 2 August, 2021 The content ofthis atcleis intended to provide a general guide to the subject matter. Specialist advice ‘should be sought about your specific circumstances. AUTHOR(S)Ashish Anahu Tata Lees a ‘About | flog | ContactUs | Contibuors | Fnsback | FeeeNewsAlets | TAC | Unsubscibe | Praacy Statement