ALIENATIONS

MEANING:

Alienation means transfer of property, such as gifts,

sales and mortgages.
Alienations have an added importance in Hindu law
as ordinarily, neither the Karta nor any other
coparcener singly, possesses full power of alienation
over the joint family property or over his interest in
the joint family property,
 though under the Dayabhaga school a coparcener has
the right of alienation over his interest in the joint
family property.
 Points to be covered:

Father’s power of alienation.

Karta’s power of alienation.
Coparcener’s power of alienation.
Sole surviving coparcener’s power of alienation.
Coparcener’s right to challenge an improper alienation
Alienee’s right and remedies
 Father’s power of Alienation
Conflicting view regarding father’s power of alienation
over his separate immovable properties.

According to ancient texts-Father’s power of alienation

over his separate immovable properties –full power

Case Rao Balwant Singh v. Rani Kishori (1898)

25 IA 54- the Privy Council set at rest this controversy
and held that the father had full power of alienation
over his separate property, both movable and
immovable.
Ancient texts sought to impose restrictions on the
father’s power of alienation over his self-acquired
immovable properties, on the other, he sought to give
him wider powers over ancestral movable properties.

However, it is now a settled law that the Mitakshara

father has no greater power over joint family movable
properties than over joint family immovable
properties- father Karta has the following two special
power
1. Gift to love and affection
2. Alienation for the discharge of his personal debts
Gift of love and affection-the father has power to
make a gift of love and affection of a small portion of
movable joint family property. Such gifts may be made
by him to his own wife, daughter, son-in –law, son,
daughter in law or to any other near relation.

Such gift may contain jewels, gold or silver ornaments,

clothing, cash or of any movable property.

Such gifts are very common among Hindus and are

ordinarily made on some occasion, such as marriage,
upanayana, mundana or when daughter, after
marriage visits the house of her father, or when a child
is born to her.
 Conditions necessary for the validity of such gifts:

It should be a gift of love and affection, i.e., the father

should stand in some relationship of affection to the
donee.

The gift should be of a small portion of movable joint

family property. What is a small portion is a relative
term and has to be considered in relation to the entire
joint family property.
Gifts of immovable property- gifts cannot be
made of immovable property, through in
Case-Guramma v. Mallappa 1964 SC 510- a gift
of immovable property to daughter made by the father
after her marriage was held valid.
 The SC justified such gifts by saying that it was given
in lieu of daughter’s share in partition which was
recognized in ancient law.
 It is submitted that, despite this particular reasoning,
gifts of love and affection of immovable property
cannot be made to sons or for that matter to any
member of the joint family. SC decision has bee
confined this rule to gifts of daughter.
 Karta’s Power of Alienation

Although no individuals coparcener, including the

Karta has any power to dispose of the joint family
property without the consent of all others, it is
recognized by the Dhamashastra that in certain
circumstances, any member of the family has power to
alienate the joint family property.

Vijnaneshwara recognized three exceptional cases in

which alienation of the joint family property could be
made-
 Apatkale- in the time of distress

 Kutumbarthe- for the sake of the family. It seems

that Vijnaneshwara did not purport to assign this
meaning to it but it may means for the maintenance
of the members of the family.

 Dharamarthe- for the performance of indispensable

duties.
The power which was conferred by Vijnaneshwara
on every member has under gone modifications in
two respects-
 The power cannot be exercised by any member
except the Karta
 The joint family property can be alienated for the
following three purposes only-
 Legal necessity- ( apatkale as well as part of
Kutumbarthe
 Benefit of estate-(part of kutumbarthe)
 Acts of indispensable duty- (dharmathe)
Legal necessity: Legal necessity will include all
those things which are deemed necessary for the
members of the family.
The term apatkale used by vijnaneshwara may
indicate that joint family property can be alienated
only in times of distress, such as famine, epidemic,
earthquake, floods and the like.

An alienation, in such circumstances will be

undoubtedly valid, but it would not be right to say that
alienation can be made only in times of distress.
Case: Rani v. Shanta 1971 SC1028 it was held
that the compelling necessity is not the sole test of
the validity of an alienation made by the Karta.
Thus, legal necessity does not mean actual
compulsion, it means pressure upon the estate
which in law may be regarded as serious and
sufficient.
If it is shown that the family need was for that thing
or that article, and if the property was alienated for
the satisfaction of that need, it would be sufficient.
The term is to be interpreted with due regard to the
conditions of modern life.
Food, shelter and clothing for the members of the
family.
Marriage of the family including daughters, towards
whom there is a special duty.
Medical care of the members of the family.
Defence of a member involved in a serious criminal
charge, but not for the prosecution of a person
accused of murdering a member of the family.
For the payment of government dues, such as land
revenue, income tax case and other taxes and duties.
For the performance of necessary ceremonies such
as sradhs and upnayana.
For the payment of rent
Sale of land to construct a pakka house.

Benefit of estate: It means anything that is done

which will benefit the joint family property.
Case: Palaniappa v. Devsikmony 1917 PC 68- it
was held that it is impossible to give a precise
definition of its applicability in all cases. The
preservation, however of the estate from extinction,
the defence against hostile litigation affecting it, the
protection
of it or its portions from injury or deterioration by
inundation (flood) etc would obviously be benefits.
According to one view only that will be benefit of
estate which is of a defensive character, i.e., which is
done to avert an imminent danger to the property.
Repairs of a house in dilapidated condition,
construction of dikes and bunds to prevent flooding of
land, or defence of property involved in hostile
litigation etc will include in benefit in estate. But
anything done merely to improve the property will
not amount to benefit of estate
Other view was any thing done which is of positive
benefit to the estate would amount to benefit of estate.
The test is of a prudent owner. Anything which a
prudent person can do in respect of his own property,
the Karta can do in respect of the joint family
property.

The Karta, as prudent manager, can do all those

things which are in furtherance of the family’s
advancement or to prevent probable losses, provided
his acts are not purely of a speculative or visionary
character.
Indispensable duties- sradha, upanayana and necessary
samskars like grihapravesam, gauna etc.
Coparcener’s Power of Alienation-
The Mitakshara did not permit individual alienations by
coparcener. The law of coparcener’s power of alienation is
the product of judicial legislation.
a) Involuntary Alienation- means Alienation of the
undivided interest in execution proceedings. For e.g.,
payment of debts. The limitation of this rule is that such a
decree can not be executed against the interest of the
coparcener after his death. But if his interest has been
attached during his life time, it can be sold in Court sale
after his death.
b) Voluntary Alienation- gifts, sale and mortgages,
renunciation
Sole surviving Coparcener’s Right of
Alienation- He has the full power of alienating the
property that way he likes, by sale, mortgage or gift
since at the time of alienation, there is no other
member who joint interest in the family property.
Such an alienation cannot be challenged by a
subsequently born or adopted son.
 Coparcener’s Right to Challenge Alienation
When the father, the Karta, the coparcener and the sole
surviving coparcener overstep their power, the
alienation can be challenged. It can be challenged the
moment the person entitled comes to know of it and
till it is not barred by limitation.
Coparcener who was in the womb at the time of
alienation- It is also a settled law that a coparcener
who is in the womb of his mother at the time of
alienation can get the alienation set aside after his
birth. Under Hindu law, a son conceived is, in many
respects, equal to a son born.
After born Coparcener- If an alienation is made
by a father who has sons and before all the sons die
another son is born to him, then even after the death
of all the sons existing at the time of alienation, the
subsequently born son can challenge the alienation
provided the right is not barred by limitation.

Adopted son- It is settled law that a son adopted

subsequent alienation has no right to challenge
alienation, even if alienation was invalid at the date
when it was made.
 Alienee’s rights and remedies
When the alienation is valid- no problem arises
the alienee is entitled to the possession of the property
alienated.

In case alienation is invalid- In those states

(Bombay, M.P and Madras) where an improper
alienation can be set aside only to the extent of the
share of non–alienating coparceners there is no equity
entitling the alienee to a refund of proportionate part
of purchase money in respect of those shares.
Where an invalid alienation can be set aside in its
totality, whether the alienee is entitled to any equity or
charge on the alienor’s share for money paid by the
alienee to him?
Case- Narayan pandit v. Sarman Singh 1917 PC
41 it was held that he has no such equity.

But if the alienor is the father and the same has been
set aside at the instance of the sons during the father’s
life time, has the alienee any equity or right against
the interest of sons?
In Hasmat v. Sundar (1885) 11 Cal 396 it was held
that if the sale is set aside, it is clear that the alienee
would be entitled to recover the purchase money from
the father.
It would be, therefore, their father’s debt and unless
they showed that it was an avyavaharika debt, the
whole joint family property would be liable for it. It
follows, therefore, that whole joint family would be
liable for it.
It follows, therefore, that the sons cannot recover the
property without refunding the whole of purchase
money.
 Coparcener’s Alienation and Alienee
Where alienation is valid-alienee is entitled to the
interest of the coparcener as it existed at the time of
alienation.

Right to partition

Alienee takes the properties subject to equities-

charges, incumbrances and liabilities.