NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

FAMILY LAW –II

COPARCENER’S RIGHT TO ALIENATE HIS UNDIVIDED INTEREST

IN THE COPARCENARY PROPERTY

SUBMITTED BY SUBMITTED TO
HOE HUNTER KUSRE SOUBHAGYA BHADKARIA
2017BALLB118 ASSISTANT PROFESSOR

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 A. ACKNOWLEDGEMENT

I take this opportunity to thanks everyone who helped out in completing my project directly or
indirectly. I show a special gratitude to Asst. prof SOUBHAGYA BHADKARIA who was
abundantly helpful and offered invaluable assistance, support and guidance firstly in selecting
the topic of project then with the research work, without her knowledge and assistance this
project would not have been successful. I would also like to thanks NLIU’s library, which helped
a lot in learning more about my project’s topic.

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 B. COPARCENER’S RIGHT TO ALIENATE HIS UNDIVIDED INTEREST IN THE
COPARCENARY PROPERTY

C. INTRODUCTION

This project work will deal with the coparcener’s right to dispose of his undivided interest in the
coparcenary property under a will in context of pre and post Hindu Succession Act, 1956.

The interests of every coparcener in the joint family property are that of ownership, possession,
and alienation, but there interests can only be exercised collectively, i.e. with the consent of other
coparceners. In case of one coparcener, he has the freedom to treat the property as his separate
property and dispose it of at his pleasure.

Where a sole surviving coparcener makes a will of the property, and before his death, i.e., the
time when the will, will become operative, another coparcener comes into existence, the will,
will become invalid as he is no longer a sole surviving coparcener. If at the time of his death he
has the same status, i.e., if a sole surviving coparcener, the will, will be valid.

Under the classical Hindu Law, no coparcener, including a father, 1 except in certain situations, a
sole surviving coparcener was empowered to dispose of his undivided share 2 under a will,3 even
with the consent of the other coparceners. Whereas this position was changed post Hindu
Succession Act, 1956.Therfore ,post 1956 any coparcener can make a valid will with respect to
his undivided share in the coparcenary property, in favor of anyone.

D. STAEMENT OF PROBLEM

Comparative analysis of a Coparcener’s right to alienate his undivided interest in the

coparcenary property under classical Hindu Law and post Hindu Succession Act, 1956.

E. HYPOTHESEIS

It is hypothesized that coparcener’s right to alienate his undivided interest in the coparcenary
property post Hindu Succession Act, 1956 have been broadened and is of progressive view in
comparison of classical Hindu Law.

1
Narottam v. Narsandas, (1866) 3 Bom HC 6.
2
Lalta Prasad v. Sri Mahadeoji, AIR 1920 All 116.
3
Vallaimmal Achi v. Nagappa Chettiar, AIR 1967 SC 1153.

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F. RESEARCH OBJECTIVE

To do in-depth Comparative analysis of a Coparcener’s right to alienate his undivided interest in

the coparcenary property under classical Hindu Law and post Hindu Succession Act, 1956.Also
to see whether the changes made are progressive in nature or not.

G. REVIEW OF LITERATURE

1. Poonam Pradhan Saxena, Family Law Lectures- Family law II, (2nd edn, 2007), Lexis
Nexis Butterworths.

This book extensively covers various topics of family including the likes of Multiplicity of
Succession Laws, Applicability Criterion, Laws relating to Intestate Succession, The Hindu
Succession Act, 1956.This helped me to understand the basic concepts of family law alongside
my preparation of this project work dealing with the comparative analysis of pre and post Hindu
Succession Act, 1956 in context of coparcener’ right to alienate his undivided interest.

Also this book covers an in depth analysis of post amendments changes like daughters as a
coparceners and its effect on the classical concept of coparcenary and joint family.

2. Satyaeet A. Desai, Mulla Principles of Hindu Law, (20th edn. 2007), Butterworths, India.
This classic peace of literature leaves no stone unturned when it comes to Hindu law The author
has referred to nineteenth edition of Mulla Hindu Law which incorporates several important
pronouncements rendered by the courts, in the field of personal law since the last edition. It
explains and comments upon the fundamental changes made in the Hindu Succession Act 1956,
by its amendment in 2005 as they bring about a radical change in the law of succession
applicable to Hindus.

Contents
Coparcener’s right to alienate his undivided interest in the coparcenary property.........................1

1. Acknowledgement................................................................................................................2

A. Coparcener’s Right To Alienate His Undivided Interest In The Coparcenary Property.........3

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 2. INTRODUCTION................................................................................................................3

3. STAEMENT OF PROBLEM...............................................................................................3

4. HYPOTHESEIS...................................................................................................................3

5. RESEARCH OBJECTIVE...................................................................................................4

6. REVIEW OF LITERATURE...............................................................................................4

B. Coparcener’s Right To Alienate His Undivided Interest In The Coparcenary Property.........6

1. Introduction...........................................................................................................................6

2. WHAT IS ALIENATION?...................................................................................................7

a. Voluntary alienation:.........................................................................................................7

b. Involuntary alienation:..................................................................................................7

3. ALIENATION BY WAY OF GIFT:....................................................................................7

4. ALIENATION BY WILL:...................................................................................................9

4.1 CASE LAW: RADHAMMA v. H.N. MUDDUKRISHNA

(CIVIL APPEAL NO.7092 OF 2010).....................................................................................9

5. COMPARISON BETWEEN PRE AND POST 1956 AMENDMENT.............................11

6. CONCLUSION...................................................................................................................12

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 H. COPARCENER’S RIGHT TO ALIENATE HIS UNDIVIDED INTEREST IN THE
COPARCENARY PROPERTY.

1. INTRODUCTION

Coparcenary is a narrower institution within a joint family property consisting only of male
members and a coparcener is a person who acquires interest in the joint family property by birth.
The basic difference between the coparcener and a member of a Hindu Undivided family
(‘Hereinafter HUF’) is that the former one can enforce partition of the HUF property which the
latter cannot.

The interests of every coparcener in the joint family property are that of ownership, possession,
maintenance, partition, survivorship and alienation, but there interests can only be exercised
collectively, i.e. with the consent of other coparceners. In case of one coparcener, he has the
freedom to treat the property as his separate property and dispose it of at his pleasure.

Where a sole surviving coparcener makes a will of the property, and before his death, i.e., the
time when the will, will become operative, another coparcener comes into existence, the will,
will become invalid as he is no longer a sole surviving coparcener. If at the time of his death he
has the same status, i.e., if a sole surviving coparcener, the will, will be valid.

The classical law cautioned against the indiscriminate transfer of the joint family property but
with the changing scenario these rules changes as well when the Rajasthan HC held that the
“undivided interest of coparcener attached and sold in execution of decree for personal debts
and sale made was held valid.”4

Under the classical Hindu Law, no coparcener, including a father, 5 except in certain situations, a
sole surviving coparcener was empowered to dispose of his undivided share 6 under a will,7 even
with the consent of the other coparceners. Whereas this position was changed post Hindu
Succession Act, 1956.Therfore ,post 1956 any coparcener can make a valid will with respect to
his undivided share in the coparcenary property, in favor of anyone.

4
Dropdi Devi v. Jagdish Chandra, AIR 1989 Raj 110.
5
Narottam v. Narsandas, (1866) 3 Bom HC 6.
6
Lalta Prasad v. Sri Mahadeoji, AIR 1920 All 116.
7
Vallaimmal Achi v. Nagappa Chettiar, AIR 1967 SC 1153.

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 2. WHAT IS ALIENATION?

Alienation can be defined as “it includes as any disposal by the father, Karta, coparcener or the
sole surviving coparcener of a part or the whole of the joint family property by any act or
omission, voluntary or involuntary, intended to take part in present or future.”8

Coparcener’s power of alienation is a product of judicial pronouncements and it can be classified

into two:

a. VOLUNTARY ALIENATION: When the owner of the property transfers the property
willingly, it is called Involuntary alienation and it can be done mainly in three ways:
(i) For consideration e.g. by sale, mortgage, lease or exchange, (ii) by gift, and (iii)
by will.
Mitakshara School of law considers alienation of undivided interest of a
coparcener by gift wholly invalid whereas Dayabhaga School of law confers
absolute right to a coparcener to alienate his part or a part of his share or property
by way of gift.
b. INVOLUNTARY ALIENATION: This type of alienation takes place when a coparcener has
taken a separate debt and has exhausted all other resources to pay it and court orders to
execute a sale of undivided interest of the coparcener from HUF property.

3. ALIENATION BY WAY OF GIFT:

One of the landmark cases dealing with this subhead is Thamma Venkata Subbamma v. Thamma
Rattamma where the Supreme Court held that “Coparcener can make a gift of his undivided
interest in coparcenary property to another coparcener or to a stranger with prior consent of all
other coparceners - Such a gift would be quite legal and valid - Subject gift should be construed
as renunciation of coparcener's undivided interest in coparcenary - Gift was valid construing it
as renunciation or relinquishment of interest in coparcenary.”

FACTS:

On May 4, 1959, Rami Reddy executed a deed of settlement (Ex. A-l) in favour of his brother,
Veera Reddy, conveying his entire undivided interest in the coparcenary reserving a life interest
to himself and also providing that after his death, his brother should maintain his wife. Rami
8
Hari Singh Gour, THE HINDU CODE,6th ed.1996,p.586.

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Reddy died in January, 1965 and shortly thereafter his brother Veera Reddy also died in March,
1965.

After the death of Rami Reddy, differences arose between his widow and the respondent No. 1,
as a result of which the widow of Rami Reddy (since deceased) demanded a partition of her
husband's share which was gifted by her husband to his brother Veera Reddy.

Thereafter, she filed a suit for partition and recovery of her husband's share after cancelling the
deed of settlement, inter alia on the ground that it was a void document under the Hindu Law.
The suit was contested.

Trial Court held, inter alia, that the deed of settlement was void and inoperative under the Hindu
Law in the absence of consent of the other coparceners. Further, it was held that even assuming
that the deed of settlement was valid and binding on the plaintiff, the plaintiff was entitled to the
alternative relief of maintenance and separate residence under Section 39 of the Transfer of
Property Act, as the plaintiff's husband was legally bound to maintain his wife and the plaintiff
was entitled to enforce her maintenance claim. Also, that the plaintiff was entitled to a sum of
Rs. 1,200 per annum towards her maintenance and separate residence. Matter went to the Andhra
Pradesh High Court.

The High Court did not agree with the finding of the Trial Court and held that the deed of
settlement was valid.

The suit was dismissed in so far as it related to the cancellation of the deed of settlement and
recovery of possession of the suit properties by way of partition. But the decree passed regarding
maintenance to the plaintiff at the rate of Rs. 1,200 per annum, was upheld by the High Court.

The appeal was brought before the Supreme Court whereby it affirmed the conclusion arrived at
by the HC after observing the plethora of cases laid down, that a gift by a coparcener of his
undivided interest in the coparcenary property either to a stranger or to his relation without the
consent of the other coparceners is void unless permitted by an express text.9

9
Baba v. Timma, ILR 7 Mad. 357 FB.. Ponnusami v. Thatha, ILR 9 Mad. 273., Tagore v. Tagore,(1872)9 Beng LR
377., Durai v. Devarajulu,(1980) 1 Mad LJ 507.

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 4. ALIENATION BY WILL:

4.1 CASE LAW: RADHAMMA V. H.N. MUDDUKRISHNA

(CIVIL APPEAL NO.7092 OF 2010)
Recently the Supreme Court of India cleared the legal dilemma regarding Section 30 of Hindu
Succession Act post 1956 amendment and pre 2005 amendment. The instant court while
affirming the stance of HC held that “the undivided interest of a Male Hindu belonging to a
Mitakshara coparcenary in a joint family property can be disposed of by Will as per Section 30
of the Hindu Succession Act 1956.”10
The instant case dealt with a suit of partition of Patel Hanume Gowda's estate filed in 1976 by
his second wife and daughter from the second marriage. The defendant in this case i.e., (Mr.
Gowda's children from first marriage) who gained the control of his estate post his death in 1965
produced a will claiming to be executed by Late Mr. Gowda in 1962, through which their
undivided interest was bequeathed to them.
Plaintiff challenged the validity of the will on the grounds that it was a result of Undue influence
and coercion exercised by the defendants.
Trial court upheld the validity of the will under § 68 of Evidence Act but invalidated the
disposition of undivided share in coparcenary interest according to the will.

Matter reached the High Court of Karnataka through appeal where it reversed the decision of
the trial court and while relying on Section 30 of the Hindu Succession Act observed that the
"Section 30 makes it clear that a Hindu testator may dispose of any property which is capable of
being disposed of by him by Will or other testamentary disposition in accordance with Indian
Succession Act of 1925. This is only in respect of interest of a male Hindu in Mitakshara joint
family property.

The apex court observed: “that Section 30 of the Act contains an exception making it clear
that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara
coparcenary property can be disposed of by him by Will or any other testamentary
disposition.”11

10
https://www.livelaw.in/news-updates/hindu-can-dispose-of-undivided-share-in-joint-family-by-will-as-per-sec30-
hindu-succession-act-sc-read-judgment-142361.
11
Id.

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 PRE 1956 AMENDMENT
1. Under the classical Hindu Law, no
coparcener, including the father12
was empowered to dispose of his
undivided share under a will,13
even with the consent of the other
coparceners.
2. Father was permitted to make a
gift of the reasonable portion of the
coparcenary property, but he could
do so under a will. In case of a sole
surviving coparcener a will could
be made but whether it could be
validly operative was to
determined on the date of his
death.
5. If, at the time of his death there
was no other coparcener
existence, the testamentary
disposition is a valid one. But a
will in case of a subsequently born
son14 or an adopted son15 was
12
Narottam Jagjivan v. Narsandas Harkisandas, AIR 1956 AP 1.
13
Valliammai Achi v. Nagappa Chettiar, 1967 AIR 1153.
14
Lalita Devi v. Ishar Das, AIR 1933 Lah 544.
15
Parma Nand v. Shiv Charan Das, AIR 1921 Lah 147.
POST 1956 AMENDMENT
1. § 30 of Hindu Succession Act, 1956
empowers the undivided coparcener
to make a testamentary disposition
of his undivided interest in the
Mitakshara coparcenary. After the
1956 amendment any coparcener
can make a valid will in favor of
anyone including strangers by way
of will.
3. Also there is no limitation to the size
of property that can be asserted or
no specification to the legatees.
be
4. Doctrine of survivorship would not
be applicable to the coparcenary
interest.
5. In case the property is bequeathed to
in a stranger, he is entitled to ask for a
partition or specification of share.
6. The coparcener while making a will
of his undivided share is under no
obligation to inform Karta about the
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invalid. same.

5. COMPARISON BETWEEN PRE AND POST 1956 AMENDMENT

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 I. CONCLUSION

Under the classical Hindu Law, no coparcener, including a father, 16 except in certain situations, a
sole surviving coparcener was empowered to dispose of his undivided share 17 under a will,18 even
with the consent of the other coparceners. Whereas this position was changed post Hindu
Succession Act, 1956.Therfore ,post 1956 any coparcener can make a valid will with respect to
his undivided share in the coparcenary property, in favor of anyone.

This change in position is a positive step towards the more liberal society with more power and
rights of a coparcener while sharing his undivided interest in a coparcenary property. Post
amendment there is no limitation in the size of the property that can be asserted. Also if the
property is bequeathed to a stranger, he is entitled to ask for a partition or specification of share.

Recently Supreme Court of India held “that that according to Section 6 of the Act ,when a
coparcener dies leaving behind any female relative specified in Class I of the Schedule to the
Act(which includes a daughter), his undivided interest in the Mitakshara coparcenary property
would not devolve upon the surviving coparcener by survivorship but upon his heirs by intestate
succession. Therefore, the interest of the deceased coparcener would devolve by intestate
succession on his heirs, which included his daughters.”19

16
Narottam v. Narsandas, (1866) 3 Bom HC 6.
17
Lalta Prasad v. Sri Mahadeoji, AIR 1920 All 116.
18
Vallaimmal Achi v. Nagappa Chettiar, AIR 1967 SC 1153.
19
DANAMMA v. AMAR, CIVIL APPEAL NOS. 188-189 OF 2018.

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