Alienation of Coparcenary Property: Family Law Notes



What is Alienation of Coparcenary Property?

Ans: Alienation of coparcenary property is an inherent element of the Hindu Law and more precisely the Hindu Succession Act, 1956. All the transfers of the intestate assets, after the death of a male ancestor in a Hindu joint family, are governed and guided by the rule of the coparcenary.

Coparcenary Property

The term “coparcenary” refers to a narrow body of persons within a joint family, consisting of the father’s son, the grandson, and the great-grandson.

Resembling a joint family constituted by the father and his 3 continuing male lineal descendants. For such a linear continuation, the existence of a father-son relationship is unnecessary. Therefore, a coparcenary may contain grand-father and grand-son, brothers, uncle and nephew, and so on.

The rule relating to a coparcenary holds that until one is not removed by more than four degrees from the last property holder. However, the removed one may be from the original holder, one shall not be deemed as a Coparcener.

Illustration: A is the father and B to H are his lineal descendants. Now as per the rule of four degrees, coparcenary exists until D and E, F, G, and H are excluded. Now A, the last property holder demises, this shall rearrange the Coparcenary and include E, and B will become the last property holder. Similarly, if B dies, then C, D, E, and F become the Coparceners with C being the last property holder. This way the four-degree rule continues.
Therefore, any intestate ancestral property acquired by the member of a Hindu joint family in course of coparcenary shall be deemed as Coparcenary property.

Alienation of Coparcenary Property

Alienation refers to the transfer of property. For eg: sales, gifts, mortgages, etc. Property alienations have an added importance in Hindu law, as, usually neither the Karta (the manager of a joint family and the properties of such joint family.

He also looks after the regular expenses of the family and also protects the joint family property) nor any other Coparcener has the absolute full power of alienation over the joint family property or over his interest in such property.

However, under the Dayabhaga school (in this school of thought the male descendants do not hold any right over the ancestral property after the ancestor’s demise), a Coparcener has the alienation right over his right in the alienation property.

The alienations related to coparcenary property under the Hindu law are governed by the Hindu Succession Act, 1956 and the Transfer of Property Act, 1882.

Who may alienate Coparcenary Property?

The following persons are capable of alienating/transferring a coparcenary property and thus possess the power in this regard:

  1. Father’s alteration power:
    1. Before the courts used to hold conflicting views regarding the father’s power of alteration over his separate immovable properties. This is despite their unanimity the father was fully empowered to dispose of his separate movable property.
    2. The cause of this conflict was a text in Mitakshara, according to which the father “is subject to the control of his sons and the rest, regarding the immovable property”, whether self-acquired or ancestral.
    3. In Rao Balwant Singh v. Rani Kishori, 1898; the Privy Council resolved this controversy and held that the father had the complete power of alienation over his separate property, irrespective of being moveable or immovable.
    4. It has, however, been recognized all along in Dayabhaga that the father has the absolute alteration power over all the properties, whether self-acquired or ancestral.
    5. On one hand, Vijnaneshwara restricted the father’s alienation power over his self-acquired immovable properties, contrarily the father was conferred with wider powers over movable ancestral properties. However, it is presently a settled law that according to Mitakshara, the father is by no means greatly empowered over movable joint family properties compared to the immovable ones.
    6. The sole power a father has been conferred is the power of making “gift of love & affection”. Another power that is being held by a father is the power of alienating joint family property for discharging his personal debts.
    7. Gifts of love and affection: According to Mitakshara:
      1. The father is empowered to “make a gift of love and affection” of movable joint family property.
      2. Such gifts may be made by him to his:
        1. Own wife;
        2. Daughter;
        3. Son in law; or
        4. Any other close relation.
      3. These gifts of the moveable property may consist of –
        1. Jewels,
        2. Silver or gold ornaments,
        3. Clothing,
        4. Cash, or
        5. Any other moveable property.
      4. Such gifts are usually made on occasions like marriage, upanayana, mundana, or when the daughter visits her paternal home, or during the daughter’s childbirth, etc.
      5. 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, son-in-law, daughter etc.
      6. Two gifts are necessary for that validity of such gifts:
        1. It should be a gift of love and affection, i.e., father should stand in some relationship of affection to donee.
        2. The gift should be of a small portion of movable joint family property.
      7. In the case of Basho vs. Mankore Bay (1907) 34 IA 107, a gift made to the daughter of Rs.20000 was held by the Privy Council to be valid as the total value of the estate was 10-15 lakhs.
      8. In the case of Subbarami vs. Rammamma (1920) 43 Mad 824, an important principle was laid down that such gifts cannot be made by a will, since as soon as a coparcener dies, he loses his interest in the joint property, which he cannot subsequently alienate.
      9. Gifts of Immovable Property: Such gifts cannot be made of immovable property, though in Guramma v. Malappa 1964 AIR 510, a gift of immovable property to daughter made by father after her marriage was held to be valid.
        It is submitted that gifts of love and affection of immovable property cannot be made to sons, or for that matter to any member of joint family. Supreme Court has confined this rule of gifts of immovable property to daughter only.
    8. Alienation for Discharge of his Personal Debts: Father has the power to alienate the family property for the discharge of his antecedent debts, which not being immoral or illegal, the sons are under a pious obligation to discharge.
      1. Father can alienate family property to pay his personal debts if the following two conditions are fulfilled-
        1. The debt is antecedent.
        2. The debt should not be Avyavaharik, i.e., for unethical or immoral purposes.
      2. The above two rules though derived from ancient Mitakshara text was also laid down in the case of Brij Narain vs. Mangla Prasad (1964) 26 BOMLR 500.
  2. Karta’s Power of Alienation or Alienation by Manager of Coparcenary Property:
    1. Property belonging to a joint family is ordinarily managed by the father or other senior member of the family. The manager of the joint family is called karta.
      In the case Pandurang v. Pandurang 1947 Nag 299, the Court held that a mother, in absence of adult male member, was competent to act as manager of the family. Her acts as the karta of the family for legal necessity or for benefit of estate would be binding on the joint family. The manager or karta has the following powers;
      1. To control the income and expenditure of the joint family property.
      2. To account on partition of coparcenary property.
      3. To contract debts for family purpose and family business.
      4. To alienate coparcenary property for legal necessity or benefit of estate.
    2. Usually, an individual Coparcener, including the Karta, lacks the capability to dispose of the joint family property without obtaining the consent of all other Coparceners. However, according to the Dharmashastra, any family member is empowered to alienate the joint family property.
    3. The Mitakshara school is explicit on this matter. According to Vijnaneshwara, under 3 exceptional circumstances, the alienation of the joint family property by an individual is
      1. Apatkale, i.e. during distress;
      2. Kutumbarthe, i.e. for the sake of the family;
      3. Dharmarthe, i.e. for disposing of indispensable duties.
    4. However, with the advent of time, Vijnaneshwara’s formulation has undergone modification in two aspects.
      1. Firstly, the alienation power is not exercisable by any other family member, except the Karta.
      2. Secondly, the joint family property can be alienated for the following 3 purposes:
        1. Legal necessity (this includes Vijnaneshwara’s Apatkale as well as a part of Kutumbarthe, i.e., for the sake of members family);
        2. Benefitting the estate (this includes the other part of Kutumbarthe, i.e., for the sake of family property);
        3. Acts involving indispensable duty (this includes the entire head of Dharamarthe).
  3. Coparcener’s power of Alienation:
    1. Neither the Mitakshara nor the Smritikars conferred any sort of power of alienation to the Coparceners over their undivided interest in the joint family property.
    2. However, the textual authority is very limited in this regard. The law relating to Coparcener’s alienation power is a child of judicial legislation. The first inroad emerged when it was held that a personal money decree against a Coparcener could be executed against his undivided interest in the joint family property. Some courts have extended this principle for including voluntary alienations also.
    3. Thus, the Coparceners’ alienation power can be categorized under the following heads:
      1. Involuntary Alienation – This refers to the alienation of the undivided interest in the execution suits. The Hindu sages greatly emphasized upon the payment of the debts. The courts seized this Hindu legal principle and started its execution on personal money decrees against the joint family interest of the judgment-debtor Coparcener.
        In Deen Dayal vs. Jagdeep (1876), the Privy Council settled the law for all the schools of Hindu Law, by holding the purchaser of undivided interest at an execution sale during the lifetime of his separate debt acquires his interest in such property with the power of assessing it and recovering it through the partition.
        This rule is, however, as held in Shamughan vs. Ragaswami, limited to the non-execution of the decree, against the Coparceners interest, succeeding his demise.
      2. Voluntary Alienation – After accepting the fact that the undivided interest of a Coparcener is attachable and saleable during the execution of a money decree against him, the next step involved, extending the principle to voluntary alienations as well. Voluntary Alienation may be made in following forms:
        1. 1- Gifts:It is a well-settled law that the gift by a coparcener in Mitakshara family of his undivided interest is wholly invalid. A coparcener cannot make a gift of his undivided interest in the family property either to a stranger or to a relative except for purposes warranted under special texts.
          In Radhakant Lal vs. Nazma Begum (1918) 20 BOMLR 724, gifts of a part of joint family estate made by a Hindu in favour of two of his concubines in the daughter of one of them was held to be invalid as against his sons and grandsons even in respect of his own interest.
        2. 2- Sale and Mortgage: According to Bombay, Madras and Madhya Pradesh High Courts, a coparcener has the power to sell mortgage or otherwise alienate his undivided interest without the consent of other coparceners. In the rest of Mitakshara jurisdiction, such alienation is not permitted and a coparcener has no power to alienate hid undivided interest by sale or mortgage, without the consent of other coparceners.
        3. 3-Renunciation: A coparcener has power to renounce his share in the joint family property. A gift by a coparcener of his entire undivided interest in favour of other coparcener or coparceners will be valid whether it is regarded as one made with the consent of one or others or as a renunciation in favour of all. Renunciation with a condition to pay maintenance to him is valid. But a gift or renunciation of his share by one coparcener in favour of his one of several coparceners is not valid.
          In Alluri Venkatapathi Raju vs. Venkatnarasimha Raju (1936) 38 BOMLR 1238, Privy Council held that, a coparcener’s renunciation of his interest merely extinguishes his interest in the joint estate and its only effect is to reduce the number of persons to whom shares will be allotted if and when a division of the estate takes place.
  4. 4) Sole surviving coparcener’s power of Alienation:
    1. When all the Coparceners die except one, such a coparcener is regarded as the sole surviving Coparcener. When the joint family property passes into the hands of such Coparcener, it turns into separate property, provided that such Coparcener is sonless.
    2. Now based on various judicial decisions there are 3 views in relation to the power of the sole surviving Coparcener in alienating a property of the Hindu joint family:
      1. A sole surviving Coparcener is fully entitled to alienate the joint family property. However, if at the time of such alienation, another Coparcener is present in the womb, then such coparcener can challenge the alienation or ratify it after attaining the age of majority.
      2. The sole surviving Coparcener’s power of alienation is unaffected by any subsequent adoption of a son by the widow of another Coparcener. However, the Mysore High Court holds a contrary view in this regard.
      3. The sole surviving Coparcener cannot alienate the interest of any female where such interest has been vested on her by virtue of Section 6 of the Hindu Succession Act, 1956.
    3. When the joint family property passes into the hands of the sole surviving coparcener, it assumes the character of separate property, so long as he doesn’t have a son, with the only duty on him being that of maintenance of the female members (the widows) of the family.
    4. Thus, barring the share of the widows, he can alienate the other property as his separate property. However, this is not valid if another coparcener is present in the wombat the time of the alienation. But if the son is born subsequent to the transaction then he cannot challenge the alienation.
    5. In case a widow adopts a child after the death of her husband, will such a child challenge the alienation, i.e. can the doctrine of relation back be applied in such cases.
      The Mysore High Court in the case of Mahadevappavs. Chandabasappa AIR 1965 My. 15, held that such a child can actually challenge the alienation made by the sole surviving coparcener as he’ll have an interest in the joint family property.
    6. This is in contrast with the stance taken by the Bombay High Court in the cases of Bhimji vs. Hanumant Rao AIR 1950 Boom. 271 and Babronda vs. Anna AIR 1968 Boom. 8, where it was held that subsequently adopted son cannot divest a sole surviving coparcener of his right over the joint property and hence cannot challenge any alienation made by him.

Grounds of Alienation

According to Vijnaneshwara, a joint family property can be alienated for 3 reasons:

  1. Apatkale: It refers to a situation where the whole family or one of its members meets with an emergency, in regards to their property. The nature of this transaction is meant for combating the danger, or an attempt in avoiding the calamity for which money is needed. When it refers to the property, it indicates the transfer as being necessary for its protection, or conservation, and for which immediate action is to be taken.

This is not a mere profitable transaction, but a transfer which if not affected causes loss to the family, to this property, or any other property owned by the family.

  1. Kutumbarthe: This means “for the benefit of the Kutumb”. Kutumb refers to family members. Therefore, this involves the alienation of a property for the sake of subsistence of a family member or relative. For eg: food, clothing, housing, education. Medical expenses, etc.
  2. Dharmarthe: For performing indispensable and pious duties. Usually for religious and charitable purposes.

However, with time Vijnaneshwara’s formulation has gone through a rapid transformation and modified pivotally into 2 aspects:

  1. The power of alienation cannot be exercised by anyone but the Karta of the joint family; and
  2. The joint family can be alienated solely for the following three purposes:
i. Legal necessity:

This term “legal necessity” lacks any precise definition due to the impossibility to provide any such definition as the cases of legal necessity can be numerous and varying.

Widely speaking, legal necessity will include all those things which are to be deemed necessary for the family members. Such situations may include famine, epidemic, earthquake, floods, etc.

According to Mayne, it is now established that necessity need not be comprehended in the sense of what is absolutely indispensable but what, according to the notions of a Hindu family, would be regarded as proper and reasonable.

Essentials for a valid transaction under legal necessity are:
  1. Purpose exists, i.e. a situation with respect to family members or their property which requires money.
  2. Such a requirement is lawful, i.e. it must not be for an immoral, illegal purpose.
  3. The family does not have monetary or alternative resources for dealing with the necessity, and
  4. The course of action taken by the Karta is such that a normally prudent person will take with respect to his property.

However, while such alienation, the consideration for the sale of coparcenary property must not be inadequate.

The term ‘Apatkale’ under Vijnaneshwara may indicate that joint family property can be alienated only in time of distress such as famine, epidemic, etc. and not otherwise, however, it has been recognized under the modern law that necessity may extend beyond that. 

In Devulapalli Kameswara Sastri vs. Polavarapu Veeracharlu (1911) ILR 34 Mad 422, it was held that necessity should not be understood in the sense of what is absolutely indispensable but what according to the notions of the joint Hindu family would be regarded as proper and reasonable.

Thus, Legal Necessity doesn’t mean actual compulsion; it means pressure upon estate which may in law may be regarded as serious and sufficient. If it is shown that family’s need was for a particular thing and if property was alienated for the satisfaction of that particular need, then it is enough proof that there was a legal necessity. The following have been held to be family necessities.

  • Maintenance of all the members of the Joint Hindu family, expenses for medical care for the members.
  • Payment of government revenue and government taxes and duties like income tax.
  • Payment of debts incurred for family necessity or family business or decretal debts
  • Performance of necessary ceremonies, sradhs and upanyana.
  • Marriage expenses of male coparceners, and of the daughters of coparceners.
  • Payment of debts incurred for family business or other necessary purpose.
  • Costs incurred for the defense of the head of the joint family or any other member involved in a serious criminal charge.
Partial Necessity:

In Krishandas vs. Nathuram 1927 P.C. 37, Privy council held that where the necessity is only partial, i.e., where the money required to meet the necessity is less than the amount raised by alienation, in such a case, the sale will be valid only where the purchaser acts in good faith and after due inquiry and is able to show that the sale itself is justified by legal necessity.

In the instant case, alienation was for Rs. 3500, and the alienee was able to prove the legal necessity for Rs.3000, the alienation was held valid.

However, where the manager decides to raise money by a mortgage of family property, he can borrow the precise amount required for necessity; mortgage will stand good only to the extent of the necessity proved.

Legal Necessity and Its Role in Effective Title Transfer:

The existence of legal necessity to justify the alienation of coparcenary property is a subjective function of the facts involved in each case and transaction [Mukesh Kumar vs. Harbans Waraiah, AIR 2000 SC 172].

Across judgements which have held obligations for payment of government revenue to meeting expenses of marriage and funerals as legitimate “legal necessities” [Gharibulla vs. Khalak Singh (1903) 25 All 407 and Sundar Bai vs. Shivnarayaa, 1908 32 Bom 81], it is possible to illustrate some principles based on which legal necessity is determined, viz.,

  1. The nature of the necessity must be clear and defined.
  2. The necessity itself not be illegal or immoral. For example, sale of coparcenary property for conducting the marriage of a minor daughter, an object which is illegal, cannot qualify as legal necessity.
  3. There must be a nexus between the alienation of the coparcenary property and the slated necessity.
  4. The necessity must arise out of a prudent consideration of the need to preserve or advance the overall interests and value of the estate and the family or meet an obligation, which, if unmet, could bring losses to the estate or the family.
  5. The legal necessity does not arise on account of mismanagement by the karta.
The Alienee’s Burden:

As the law sanctifies the alienation of coparcenary property by a karta only if there is existence of legal necessity for the same, the very transfer of title and ownership to the alienee remains suspect pending the answer to the question of legal necessity.

Traditionally, the burden is on the alienee to demonstrate either the existence or the legal necessity or that he or she undertook an honest inquiry into the existence of legal necessity before purchasing the coparcenary property at the hands of the karta [Kesar Singh vs. Santokh Singh (1936) 17 LAH].

However, as held in the case of Pandurang Mahadeo Kavade v. Annaji Balwant Bokil AIR 1971 SC 2228, the alienee is discharged of the burden to prove existence of legal necessity, if the coparcener plaintiff fails to allege absence of legal necessity and no issue is framed in respect of the same during the trial.

Furthermore, where the basis for assailing the alienation is on grounds of absence of legal necessity, the transaction is voidable and not void [Raghubanchmani vs. Ambica Prasad, AIR 1971 SC 776]. Since voidability implies that the alienation is not presumptively invalid, a plaintiff coparcener alleging absence of legal necessity will necessarily have to seek the relief of cancellation of the alienation under Section 31 of the Specific Relief Act, 1963.

Once the voidability of the transaction involving sale of coparcenary property is established, it also impacts the valuation of the lawsuit, the court fee payable thereon and also the question of whether the suit is time barred, all of which are legitimate preliminary questions of law that can result in summary rejection of the plaint.

With reference to the question of limitation especially, in cases where the alienation is registered, Section 17 of the Indian Registration Act, 1908 presumes that the coparceners, especially adults have notice thereof from the date of registration itself. In such a scenario, the suit for challenging the sale on grounds of absence of legal necessity must either be brought within;

  1. 3 (three) years from the date of the alienation of the property in case where the coparceners/plaintiffs are adults [Article 59 of the Limitation Act, 1961]; or
  2. 3 (three) years from the date on which, the coparcener/plaintiffs turn the age of majority, in case they were minors at the time of alienation [Article 60 of the Limitation Act, 1961];
  3. 12 (twelve) years from the date on which alienee assumes possession of the coparcenary property, if the suit is brought by a Hindu governed by Mitakshara law to set aside father’s alienation of such coparcenary property [Article 109 of the Limitation Act, 1961].

In the landmark case of Hanoomaprasad vs. Babooe, 1856 6 MIA 393, it has been held that the burden of proof whether the transaction is for legal necessity, benefit or for indispensable duty, is on alienee.

However, what the alienee is required to prove is: either there was an actual need or that he made proper and reasonable enquires as to the existence of needs and acted honestly. It is not necessary for him to show that every bit of consideration which he advanced was actually applied for meeting legal necessity. In short, the onus may be discharged by the alienee by:

  1. Proof of actual necessity or,
  2. By proof that he made proper and bona fide inquiries about the existence of legal necessity and that he did all that was reasonable to satisfy himself as to the existence of legal necessity.

The question whether Alienation made by a father or other manager which is neither for a legal necessity nor for the discharge of an antecedent debt is void or voidable has given rise to conflicting judicial opinions.

The debate was put to rest by the Supreme Court in the case of R. Raghubanshi Narain Singh vs. Ambica Prasad, AIR 1971 SC 776, where it was held that alienation made without legal necessity is not void but merely voidable.

ii. The Benefit of Estate:

Pivotally speaking, the benefit of an estate refers to anything that is done which will benefit the joint family property.

The term ‘benefit of the estate’ in the inception covered purely defensive cases, such as protecting it from a threatened danger or destruction, but gradually it also began including alienations that an ordinarily prudent man would view as appropriate under certain situations.

There is also a lack of unanimity as to the interpretation of the words, as for the benefit of the estate.

The courts have not given a set definition of this concept, undoubtedly so that it can be suitably modified and expanded to include every act which might benefit the family.

In the modern law the first exposition of the expression “for the benefit of the estate” was found in the case of Palaniappa vs. Deivasikamony 1917 P.C. 68. In this case the judges observed “No indication is to be found in any of them (ancient texts) as to what is, in this connection, the precise nature of things to be included under the descriptions ‘benefit to the estate’…

The preservation however of the estate from extinction, the defense against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundations, there and such like things would obviously be benefits.”

The Privy Council has elaborately illustrated as to what are the incidents of benefit to estate in Palaniappa v. Devsikmony, it laid down that “the preservation”, however, of the estate from extinction, the defense against the hostile litigation affecting it, the protection of it or its portion from injury or deterioration by inundation, these and such like things would obviously be the benefits. In broad sense legal necessity includes ‘benefit to estate’.

Conflict of Judicial Opinion:

Consequent to this decision as to what is meant by the expression for the benefit of the estate’ there has a conflict of judicial opinions on the issue. According to one view, only that will be a benefit of estate which is of a defensive character, i.e., which is done to avert an eminent danger to the property. The second view is that anything which is of positive benefit to the family as is such as a prudent owner would carry out with the knowledge available to him at the time.

The Supreme Court later added its own observation as to what constitutes benefit, in the case of Balmukund vs. Kamlawati & Ors 964 AIR 1385;

“for the transaction to be regarded as for the benefit of the family it need not be of a defensive character. Instead in each case the court must be satisfied from the material before it, that it was in fact conferred or was expected to confer benefit on family.”

Thus, the only 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. Therefore, the Karta, as prudent manager can do all those things which are in furtherance of family’s advancement or to prevent probable losses, provided his acts are not purely of a speculative or visionary character.

Differing from Allahabad High Court, a full Bench of Mumbai High Court in Hem raj vs. Nathan (1935) 37 BOMLR 427, took an intermediate view and held that “property cannot be alienated merely for the purpose of enhancing its value, though, at the same time, it would not be correct to say that no transaction can be for the benefit of estate which it is not of a defensive character”.

The below given illustrations will give an idea as to the cases where the courts have held the alienation to be for benefit of the estate:

In, Hari Singh vs. Umrao Singh 1979 All. 65, when a land yielding no profit was sold and a land yielding profit was purchased the transaction was held to be for benefit.

In Gallamudi vs. Indian Overseas Bank 1978 A.P. 37, when a alienation was made to carry out renovations in the hotel which was a family business, it was held to be for benefit.

    iii. Indispensable Duties:

The term “indispensable duties” refers to performing religious, pious or charitable acts, such as marriage, grihapravesham, shradha, upanayana, etc. 

The third ground upon which the authority of the Karta to alienate joint Family property rests, is where indispensable requires it. The term “indispensable duties”, implies the performance of those acts which are religious, pious or charitable. Vijnaneshwara gave one instance of Dharmamarthe, viz., obsequies of the father and added “or the like”. The phrase “and the like” refers to annual sraddhas, the ceremony of upanayanam, the marriage of coparceners and of girls born in family and all other religious ceremonies. Apart from such indispensable ceremonies, gift within reasonable limit can be made for pious purposes, for ex; a small portion of property can be alienated for a family idol or to an idol in a public temple.

The major case in this regard is that of Gangi Reddi vs. Tammi Reddi (1927) 29 BOMLR 856, wherein the Judicial Committee held that:

“A dedication of a portion of the family purpose of a religious charity may be validly by the Karta without the consent of all the coparceners, if the property allotted be small as compared to the total means of the family. It also lays down the principle that the alienation should be made by the manager inter vivos and not de futuro by will”.

Coparcener’s Right to Challenge Alienation

If the father, Karta, coparcener or sole surviving coparcener oversteps their power in making the alienation, it can be challenged and set aside by any other coparcener who has an interest in the property, from the time he comes to know of it till the time the suit is barred due to limitation.

Article 126 of the Indian Limitation Act, 1908 sets the period of limitation for a suit by son challenging alienation made by the father as 12 years, Article 144 gives the period for alienation made by Karta as 12 years, in case of mere declaration the period is 6 years.

The burden of proof is on the alienee to prove that it was for a valid purpose. It has been laid down that in case the alienation is made by the father for the payment of his debts, then the burden of proof is on the alienation to prove that he had taken sufficient care to determine that it was for the payment of debt. The sons can rebut this assumption only by proving that the debt was Avyavharik, i.e., immoral, in such a case the burden of proof that the debt was tainted is on the son.

Existing Coparcener’s Right to Challenge Alienation:

It is a settled law that an improper Alienation can be challenged by all or anyone of the coparceners existing at the time of alienation.

In Bombay and Madras, when an alienation is challenged by the coparcener, it will be set aside only to the extent of their interest in the joint family property. As under these schools, coparcener has power of alienating his undivided interest by sale or mortgage.

In case of suits filed by the coparceners, Madras High Court has given some vital rules:

In the case of Permanayakam vs. Sivaramma, AIR 1952 Mad 435, where it was held that;

  1. If the alienation is made only for partial necessity, it may be set aside.
  2. If alienation is only a device for distinguishing a gift, the other coparceners don’t lose interest in the property or survivorship rights.

Finally, it was laid down in the case of Sunil Kumar vs. Ram Prakash that a coparcener cannot ask for an injunction against alienation on the ground that it is not for legal necessity.

Coparcener who was in the womb at the time of alienation:

Since under Hindu Law, a son conceived is, in many respects, equal to a son born, a coparcener who is in the womb of his mother at the time of alienation can get the alienation set aside after his birth.

After born Coparcener:

In Shivaji v. Murlidhar (1954) Bom. 386 (F.B.), it has been that an alienation made by a father who has male issues 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. The overlapping of lives gives him this right, it is necessary that at the time of his conception there must have existed an unexpired right among other coparceners to challenge the alienation.

Adopted son:

Commissioner of gift tax vs. Tejanath (1972) I.T.R. 452, it has been held that a son adopted subsequent to alienation has no right to challenge alienation even if the alienation was invalid at the time when it was made.

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