ALIENATION

Prof. (Dr.) Vijender Kumar Professor of Law & Commonwealth Fellow NALSAR University of Law, Hyd. vijenderkumar@yahoo.com

ALIENATION
In this lecture we would discuss the subject (Alienation) under the following heads: - Fathers Power of Alienation - Kartas Power of Alienation - Coparceners Power of Alienation - Sole Surviving Coparceners Power of Alienation - Coparceners Right to Challenge an Improper Alienation - Alienees Right and Remedies

Fathers Power of Alienation

Mitakshara, I.I.27; the father is subject to the control of his sons and the rest, in regard to the immovable property, whether self-acquired or ancestral. The father had full power of disposal over his separate movable property. Rao Balwant Singh v. Rani Kishori, (1898) 25 I.A. 54, the Privy Council held that the father had full power of alienation over his separate property, both immovable and movable.

Fathers Power of Alienation

Dayabhaga, I.28; it has been recognized that the Dayabhaga father has full power of alienation over all properties, whether self-acquired or ancestral. Under the Dayabhaga law, a father has absolute powers of alienation not only in respect of his separate property, but also in respect of ancestral property, whether movable or immovable. The sons have no interest by birth in the ancestral property and can neither enforce a partition against the father nor control his management.

Fathers Power of Alienation

The powers of the Karta/manager under the Dayabhaga law to contract debts or to make alienations for purposes of family necessity or benefit are the same as those of a Karta/manager under the Mitakshara law. (Bijay
Kumar Shah v. Rama Pati Basu, ILR (1942) 2 Cal. 413).

Fathers Power of Alienation

The father/Karta has the following two special powers: Gift to love and affection Alienation for the discharge of his personal debts

Gift to love and affection

Conditions for the validity of the gift: 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 a small portion of movable joint family property.

Gift to love and affection

In Gurusamy v. Jhyawraman, AIR 1996 Mad. 212, held that the father has power to make a gift of love and affection of a small portion of movable joint property. Such gift cannot be made of immovable property. Immovable property cannot be given to any one else, not even to wife or daughter-in-law.

Kartas Power of Alienation

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 Dharamarthefor the performance of indispensable duties. Legal Necessity (modern doctrine)

Family necessity or benefit:

Karta of a joint family has power to alienate for value joint family property either for family necessity or for the benefit of the estate so as to bind the interests of all the undivided members of the family whether they are adults or minors or widows. (Mahadu v. Gajara Bai, AIR 1954 Bom. 442).

Kartas power to alienate and Injunction:

The Kartas right to alienate the joint family property for legal necessity cannot be restrained by a permanent injunction at the behest of one of the coparceners. No doubt the law confers a right on the coparceners to challenge the alienation made by the Karta but that right is not inclusive of the right to obstruct the alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation, as such relief of injunction against Karta from alienating coparcenary property not available to coparceners.

Kartas power to alienate and Injunction:

The Supreme Court held in Sunil Kumar v. Ram Prakash, AIR 1988 SC 576, that it is not open to a coparcener to sue for an injunction restraining the Karta/manager from alienating on the ground that it is not for legal necessity or benefit.

Benefit to estate:
In Gallamudi v. Indian Overseas Bank, AIR 1978 AP 37, case held that the Karta who was running a hotel business mortgaged the family property with a view to raising funds for renovation and reconstruction of the hotel, it was held to be for the benefit of estate. In Hari Singh v. Umrao Singh, AIR 1979 All. 65, case held that the land yielding no profit were sold to purchase land yielding profit, it was held to amount to benefit of estate.

Benefit to estate:
In Anil Kumar v. Krishna Murty, AIR 1995 AP 105, it was held that the sale of the joint family property by the Karta/manager for migrating to a different place for better living is a valid one. Sardha Ram v. Nakli Singh, (1990) 1 HLR 303 (SC), a case before the Supreme Court that, N faced by a notice under the Punjab Utilisation Act, that unless he brought the land under cultivation, they would be leased to others, decided to sell a portion of the land so that the sale proceeds may be utilised for the reclamation of the major part of the remaining land. The Supreme Court held that the bona fide decision taken by N cannot be said not to be an act of good management and the sale was valid.

Benefit to estate:
In Mukesh Kumar v. Harbans Wlariah, 2000(1) HLR 95 (SC), where all the male members of the joint family who were major at that time were partners of the firm and was therefore, a family business, the fact that the joint family properties were attached for payment of the income-tax, itself was sufficient to hold that the sale of the property was for the purpose of benefit of the joint family.

Indispensable duties:
The term indispensable duties implies performance of those acts which are religious, pious or charitable. Performance of marriage is a Samskara and therefore performance of marriage of members of the joint family, particularly of daughters, is an indispensable duty, though it is covered under legal necessity.

Indispensable duties:
There is a distinction between alienation made in the discharge of the indispensable duties and gift of small portions of joint family property made by the Karta for charitable or pious purposes. In the former case the Kartas powers are unlimited. He may even alienate the entire property. In the latter case he can alienate only a small portion of the joint family property, whether movable or immovable.

Burden of Proof:
Hanooman Prasad v. Babooee, (1856) 6 MIA 393, it is an established rule that the burden of proof whether the transaction is for legal necessity, benefit or for indispensable duty is on the alienee. The Privy Council propounded the following propositions: 1. The powers of the Karta under Hindu Law are limited and qualified powers. He can exercise the power of alienation in limited cases such as for legal necessity and benefit of estate.

Burden of Proof:
2. In case Karta makes an alienation as a prudent man, in order to benefit the estate or the family, the bona fide lender or alienee is not affected by the previous mismanagement of the estate, provided the lender or alienee was not a party to mismanagement. [In other words, lender or alienee should not have acted mala fide].

Burden of Proof:
3. The alienee is bound to make proper and bona fide inquiries as to the existence of legal necessity. 4. If the alienee acts bona fide and makes proper inquiries, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of alienation.

Burden of Proof:
5. The alienee is not bound to see as to the actual application of the money for the legal necessity. In Faquir v. Harnam, AIR 1967 SC 727, case it was held that whenever an alienation is challenged it is for the alienee to show that there was legal necessity.

Sole Surviving Coparceners Right of Alienation:

When all coparceners die leaving behind one, such a coparcener is known as sole surviving coparcener. 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 does not have a son. In Guramma v. Mallappa, AIR 1964 SC 510, case held that the sole surviving coparcener has full power of alienating the property the way he likes, by sale, mortgage or gift since at the time of alienation there is no other member who has joint interest in the family property.

Sole Surviving Coparceners Right of Alienation:

A sole surviving coparcener has full right of alienation of the joint family property, but if at the time of alienation another coparcener is in the womb, on his birth, he can challenge such an alienation. The sole surviving coparceners power of alienation is not affected by a subsequent adoption of a son by a coparceners widow. The sole surviving coparcener cannot alienate the interest of any female vested in her by virtue of operation of section 6, Hindu Succession Act,1956.

Status unaffected by alienation:

An alienation by a coparcener does not put an end to the coparcenary; whether he alienates the whole or part of his interest in family property he will continue to be an undivided member with a right of survivorship between himself and the other in respect of all the family property. (Aiyyagari v. Aiyyagari, (1902) 25 Mad. 690).

Alienees Rights and Remedies:

When an alienation is valid-no problem: When an alienation is invalid:- has alienee any remedy, right or equity against the alienating coparceners interest and the interest of other coparceners? Right to Partition; Right of Joint Possession; and Right to impeach previous alienation.