PREPARED BY: ROBERT.

COPARCENER RIGHT TO CHALLENGE ALIENATION

INTRODUCTION

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 coparceners
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.
Alienation of separate property by a Hindu, whether governed
by the Mitakshara School or any of its sub-schools or the
Dayabhaga School, has full and absolute powers over it. The
Transfer of Property Act governs such alienations.
The distinguishing feature of this power is that it was
traditionally given only to the father or the Karta and that, but
the power itself is near autocratic as it allows them to sell, gift or
mortgage the whole joint family property without the consent of
any coparcener, this is why the ancient texts have specified
several conditions which alone would justify such acts of the
manager. These conditions have changed over the centuries to
keep in pace with the changing conditions and the ancient rules
have been modified by the Privy Council in accordance with the
principles of equity, justice and good conscience.
In this project the subject matter i.e. Alienation has been
discussed under the following heads:
 Father’s power of alienation
 Karta’s power of alienation
 Coparcener’s power of alienation
 Sole surviving coparcener’s power of alienation
 Aileen’s rights and remedies
An effort has been made to list the entire varying viewpoint and
critically analyze them in the light of old traditions and
newfound legal principles. Alienation is of vast practical utility
as it gives a way of using the joint family property for the
common use of the family and it is a classic example of the
unique position of the Hindu joint family which is always ready
to help its members in times of need and who work together for
common benefit
FATHER’S POWER OF ALIENATION
A father possesses more power even than Karta as there are
situations in which only the father has the authority to make
alienation. Under Dayabhaga School, father is provided with the
absolute powers regarding alienation, i.e. he can alienate
separate as well as ancestral property, including movable and
immovable on his wish. As the sons don’t get a right over the
property by birth under Dayabhaga School, father doesn’t need
the consent of his sons for the purpose of alienation.
Father enjoys an absolute power, which empowers him to
alienate the property even when there are no moral justifications.
In Ramkoomar vs. Kishenkunkar[i], the Sudder Court held
that the gift by a father of his whole estate to a younger son,
during the life of the elder was valid though immoral; however
the gift of whole ancestral landed property was forbidden.
Under Mitakshara Law, while it has been a settled law that the
father had full power disposal of his separate movable property,
our courts held conflicting views as to father’s power of
alienation over his separate immovable properties. The
controversy was set at rest by the Privy Council in1898 in the
case of Rao Balwant Singh vs. Rani Kishori[ii], wherein it
held that father had full power of alienation over his separate
property, both movable and immovable.
As regards, Joint or Undivided property it has been held that the
father can alienate undivided joint family property only in the
following two cases:
 Gift of Love and Affection
 Alienation for discharge of his personal debts
Gifts 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, son-in-law, daughter etc.
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.
In the case of Basho vs. Mankore Bay[iii], 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.
In the case of Subbarami vs. Rammamma[iv]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.
Gifts of Immovable Property
Such gifts cannot be made of immovable property, though
in Guramma v. Malappa[v], 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.
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.
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.
The above two rules though derived from ancient Mitaksharatext
was also laid down in the case of Brij Narain vs. Mangla
Prasad[vi].
KARTA’S POWER OF ALIENATION
Although no individual coparcener, including Karta has any
power to dispose of the joint family property without the consent
of all other, it is a recognized concept by the dharamshatra that
in certain circumstance, any member of 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 by the
Karta:
 Legal Necessity (this includes Vijnaneshwara’s Apatkale as
well as a part of Kutumbarthe, i.e., for the sake of members
family.)
 Benefit of estate (this includes the other part of
Kutumbarthe, i.e., for the sake of family property.)
 Acts of indispensable duty (this includes the entire head of
Dharamarthe.)
However, the Karta may alienate the joint family property
irrespective of legal necessity or benefit of the estate with the
consent of all adult coparceners in existence at the time of such
alienation. Here again, there is a difference in the law prevailing
in different states as to the position in case the alienation is
consented to only by some of the coparceners and not by all. As
per the law in Bombay and Madras, the shares of the consenting
coparceners would be bound. However, in West Bengal and
Uttar Pradesh, a coparcener cannot alienate even his own
interest without the consent of all other coparceners and hence
such alienation without the consent of all coparceners would not
even bind the shares of the consenting members.
LEGAL NECESSITY
Broadly speaking, legal necessity will include all those things
which are deemed necessary for the members of the family. 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[vii], 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[viii]. 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[ix], 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.
BENEFIT OF ESTATE
An alienation of joint family property can be effected for the
benefit to estate also. 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[x]. 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[xi]”
The Privy Council has elaborately illustrated as to what are the
incidents of benefit to estate in Palaniappa v. Devsikmony[xii],
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[xiii];
“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[xiv]. 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[xv].
Differing from Allahabad High Court, a full Bench of Mumbai
High Court in Hem raj vs. Nathan[xvi] 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[xvii], 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[xviii], when a
alienation was made to carry out renovations in the hotel which
was a family business, it was held to be for benefit.
Indispensable Duties
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[xix].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 regards is that of Gangi Reddi vs.
Tammi Reddi[xx], 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[xxi]”.
BURDEN OF PROOF
In the landmark case of Hanoomaprasad vs. Babooee[xxii], 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 bonafide 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.
COPARCENER’S POWER OF ALIENATION
The subject may be divided under two heads:
1. Involuntary Alienation.
2. Voluntary Alienation.
Involuntary Alienation
Involuntary Alienation means the Alienation of the undivided
interest in execution proceedings. In 1873, the Privy Council
settled the law by holding that the purchaser of undivided
interest at an execution sale during the life of debtor of his
separate debt acquires his interest in such property with the
power of ascertaining and realizing it by partition. The limitation
of this rule is that such a decree cannot be executed against a
coparcener after his debt. But if his interest has been attached
during his lifetime, it can be sold in court sale after his death.
Voluntary Alienation
Once it was accepted that the undivided interest of a coparcener
can be attached and sold in execution of money decree against
him, it was the next logical step to extend the principle to
voluntary alienation. When the owner of property transfers it
willingly, it is voluntary alienation. When a coparcener can be
forced to do, he should also be permitted to do it himself, and
somehow the principle was extended to voluntary alienations.
Voluntary Alienation may be made in following forms:
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[xxiii], gifts of a part of joint family estate made
by a Hindu in favor 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[xxiv].
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[xxv].
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[xxvi], 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.
Sole Surviving Coparcener’s Power of Alienation
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.
Thus barring the share of the widows he can alienate the other
property as hisseparate 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 hecannot challenges the alienation.
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[xxvii] 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. This is in contrast with the stance taken by
the Bombay High Court in the cases of Bhimji vs. Hanumant
Rao[xxviii] and Babrondavs. Anna[xxix]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.
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.
Art 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, Art 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.
Alienation in case of Legal Necessity
In Hunooman Persaud’s case it has laid down that in case the
alienation was made by Karta for a legal necessity it is again for
the alienee to prove that he took sufficient care in finding out if
the transaction was for necessity or no, however once it was
proved that he had taken due care, the actual presence or
absence of such a necessity is irrelevant.
The Hon’ble Supreme Court in Sunil Kumar vs. Ram
Prakash[xxx] held that a coparcener has no right to obtain a
permanent injunction against the Karta to prevent him from
Alienation of joint family property since he has the remedy of
challenging the same.
Alienation without Necessity Void or Voidable
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[xxxi], where it was held that alienation made without
legal necessity is not void but merely voidable.
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[xxxii], 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[xxxiii] 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[xxxiv], 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 give 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[xxxv], 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.
ALIENEE’S RIGHTS AND REMEDIES
Karta’s Alienation
In case the alienation is valid then there would be no problem as
the alienee would automatically get all the rights of a mortgagee
against the mortgager.
However if the alienation is pronounced as invalid his situation
is very unclear-In the states of Maharashtra, Madhya Pradesh
and Madras where the alienation is set aside only to the extent of
non-alienating coparcener’s share, there is no equity entitling the
alienee to a refund of proportionate part of purchase money in
respect of those shares.
In the case of Narayan Pd vs. Sarmam Singh[xxxvi], the Privy
Council held that in states where alienation can be totally set
aside, the alienee would have no equity against his purchasing
amount.
In the case of Hasmat v. Sundar[xxxvii],the Calcutta High
Court said that if the alienation made by the father was set aside,
then the sum becomes the debt of the father which has to be paid
by the sons, hence they cannot set aside the alienation without
refunding the purchasing price, however this decision has been
criticized as this principle is violative of the antecedent rule.

Coparcener’s Alienation and the Alienee

Where the sale of coparcenary property or an interest therein is
within the authority of the alienor, it cannot be set aside and the
alienee gets certain rights in respect of that property. If the
whole of the coparcenary property is sold, the position of the
vendee is governed by the general law. He is full owner of the
property, entitled to the possession thereof and to the ejectment
of the members of the joint family. No question of Hindu law
arises here. But where a person purchases an undivided interest
of a coparcener in the joint family property, some important
issues of personal Hindu law crop up. Here ordinarily the rule of
Hindu law is that the vendee whether at a private sale or at an
auction sale by court stands in the shoes of vendor, but it does
not mean that he becomes a member of joint family property
like his vendor
When translated into practice this yields him the following
rights:
Right to Partition
It is now a settled law that an alienee has a right to partition and
carve out his share. If a coparcener alienates his interest in the
joint family property in some specific property, can the alienee
file a suit for the partition to specific property only and not for
the general partition? There is difference in opinion among
various high courts on the issue:
According to the Bombay and Madras High Courts, the
purchaser cannot demand the very property which has been sold
to him. He can only ask for the general partition of the interest
of his alienor. The reason is that because of the unity of
ownership of the coparcenary property, the alienor coparcener
cannot be held to be entitled to the specific property to the
exclusion of the other coparceners.
But on the other hand, the Allahabad and Calcutta High Courts
hold that there is no need for a general partition. The purchaser
can ask for partition of the interest of the alienor in the specified
property purchased by him. The reason for partial partition is
that a purchaser cannot institute a suit for partition in respect of
property in which he has no interest at all. The non-alienating
coparcener can also sue the purchaser for the partial partition of
the property transferred. He need not ask for general partition.
It has been held that the purchaser can demand partition not only
during the lifetime of the vendor but also after his death.
Right to Mesne Profits
It is now a settled law that an alienee is not entitled to the mesne
profit on the property from the day of the purchase till the day of
the partition suit is decreed. In Sidheshwar Mukherjee v.
Bhubneshwar Prasad Narainsingh[xxxviii], The Supreme
Court held that a purchaser in an auction purchase of
coparceners share in execution of a money decree against him is
not entitled to mesne profits from the date of his purchase.
Alienee takes the properties subject to equities
The alienee of coparcener’s joint family interest will take the
property subject to all charges, encumbrances and liabilities
attesting the joint family property or the interest of the
coparcener.
Right to impeach previous alienation
The purchaser of a coparcenary property in a transaction of sale
which is authorized can challenge the earlier alienation which
was not authorized. This happens in three cases:
 When he inherits the property of a coparcener by
testamentary or intestate succession

 When the property alienated without an authority is later on

alienated with authority to a different person, the later
alienee can challenge the earlier alienation. This right is
 given to him for the purpose of protecting the interest he
has acquired.
 A purchaser in an execution sale of the coparcenary
property which had already been alienated without
authority can challenge the earlier alienation[xxxix].
Right of Joint Possession
On the question whether the alienee has a right of joint
possession of specific property alienated to him before he seeks
patition, the law is not well-settled, different High Courts having
expressed conflicting views on the point.
The position under law may be summarized as under:
 According to Madras High Court, as the purchaser from a
coparcener is not a tenant in common with the coparceners
in the family, he is not entitled to joint possession or to
mesne profits with other coparceners. The rule holds good
both at private and court sales. However, in case, the
alienee has obtained possession, the other coparceners have
the right to sue for the recovery of possession of the entire
property.
 The Bombay high Court takes a different view. The court
has in the case of Bhau vs. Budha Manaku[xl], laid down
three principles as regards the above question in debate.
1. If the purchaser is a stranger and has not obtained
possession, he cannot be given possession with the
other coparceners but should left to his remedy of a
suit for partition.
2. If the alienee has obtained possession, the alienating
coparceners are entitled to joint possession with him.
 Or, it is open to them to sue for recovery of possession
of the whole joint property.
 The purchaser in possession need not be ejected in a suit
for recovery of possession brought by an excluded
coparcener, but can be declared entitled to hold(pending a
partition) as a tenant- in-common with the other
coparceners.
 When two stranger purchase property from different
coparceners of the joint family, they cannot claim joint
possession if the property.
 When there exists a valid contract for alienation of joint
family property, the alienee can sue for specific
performance of the contract.
The issue came to be discussed by Supreme Court in M.V.S.
Manikayala Rao v. M. Narasimhaswami[xli], wherein the
court held that it is well settled that a purchaser in such a case
cannot claim to be put in joint possession with the other
coparceners. He has only the right to ask for general partition of
the joint property.
RIGHT TO SHARE IN PARTITION
As a general rule, the alienee in a suit for partition to work out
his right cannot claim that the specific properties that were
alienated to him should be allotted to his share. But he has an
equitable claim and ordinarily the court may assign that very
property to his share if it could be done without injustice to other
coparceners.
However, in case the court does not allot hi that property, the
question arises can he have something else in substitution of the
property alienated to him? This is known as the “substituted
security”. The Courts have recognized that this can be done.
This principle was laid down in the case of Padmanabh v.
Abraham[xlii] which said that though it would be in all fairness
kept in mind that the alienee is given the share he has purchased
but he could be given other share if it causes injustice to the
other coparceners. It must be noted that this is in accordance
with the Mitakshara principle that “no member has a right
without express agreement to claim a specific portion as his;
same applies to the alienee as he steps into the shoes of the
coparceners. Poti, J. in Venkatammal vs.
Simma[xliii], observed that “the ‘doctrine of substituted
security’ will be applicable not only when the undivided share of
a coparcener in all the items of the coparcenary property or the
undivided share of a coparcener in all the items owned jointly, is
alienated, but also when specific item of property is alienated by
such coparcener and ultimately it is found that the alienating
coparcener is allotted some other item in partition. The doctrine
will apply irrespective of the question whether the right of
coparcener is transferred by private sale or by court.”
The Bombay, Madras and Andhra Pradesh High Courts have
held the principle “substituted security” does not apply to court
sales, while the Kerala High Court has held that the principle
applies to court sales also.