Power of Alienation – Although no coparcener including the `Karta’, has any power to dispose of the joint family property without consent of all others, as recognized by `Dharm shastra’ an member has power to alienate joint family property.
According to “Vijnaneshwara” in following three exceptional circumstance, alienation of joint family property could be made:-
(1) `Apatkale’ i.e. in the time of distress or emergency
(2) `Kutumbarthe’ i.e. for the sake of family
(3) `Dharamarthe’ i.e. for religious or spritual duties
The formulation of Vijnaneshwara has undergone modification in two respects -1st power cannot be exercised by any member except `Karta’, IIndly joint family property can be alienated for :-
(1) Legal necessity
(2) Benefit of estate
(3) Acts of indispensable duty
Karta’s Power Of Alienation – As noted above `Karta’ of joint Hindu family has power to alienate the joint family property, provided alienation is for the purpose of (i) Legal necessity (ii) Benefit of estate (iii) Acts of indispensable duty.
It has been in numerous decisions of `Privy Council’ and `Supreme Court’ held that when `Karta’ exercises power of alienation in above said exceptional cases, consent of other coparceners will be implied. Let us discuss these exceptional circumstances :-
1. Legal Necessity :- Expression `Legal Necessity’ has not been, in fact, cannot possibly be defined. Broadly speaking `Legal necessity’ will include all those things which are lawfully, reasonably, necessary for welfare of family. Term “apatkale” as used in Vijnaneshwra’s proposition is probably synonymous to `legal necessity’. Thus legal necessity does not mean actual compulsion. It simply means, a pressure upon the estate which in law may be regarded serious and sufficient prompting `Karta’ to alienate the property. In Gangadharan v. Janardhan Mallan and others, AIR 1996 SC 2127, Supreme Court after relying the judgments reported in AIR 1927 P.C. 37, AIR 1967 SC 574 and 1971 SC 1028 has observed that in case of sale or alienation of joint property by `Karta’ for legal necessity, where purchaser acts in good faith and after due inquiry and able to show that sale itself was justified by legal necessity even if small portion of sale consideration, might have been used for such `legal necessity’. He is under no obligation to inquire into the application of any surplus and therefore is not bound to make re-payment of such surplus to members of family who are later challenging the `sale’ being not for `legal necessity’.
2. For the benefit of the estate — An alienation may also be justified if it is made by the Karta for the benefit of the estate. It is not possible to give an exact definition of what would amount to benefit of the estate of the family. The preservation of the estate from extinction or protection of the estate against deterioration by inundation would obviously be `for the benefit of the estate. The difficulty, however, is in drawing a line between acts that are beneficial to the estate and those which cannot be said to be so. Broadly speaking, benefit of estate means anything that is done which will benefit the joint family property. Supreme Court inBal Mukand v. Kamla Wadia, AIR 1964 SC 1385 has observed that to be for the benefit of estate’, a transaction need not necessarily be of a defensive character. In each case court would have to be satisfied from material placed before it that it conferred benefit on the family.
3. Indispensable duties :- The term “indispensable duties” implies performance of those acts which are religious, pious or charitable. Vijnaneshwara gave one instance of dharmarthe, viz., obsequies of the father and added “or the like”. It is clear that this expression includes all other indispensable duties such as sradha, upanayanama and performance of other necessary samskaras. 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 also covered under legal necessity.
Sole Surviving Coparcener’s 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 Guruamma v. Mallappa, AIR 1964 SC 510, it was observed 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. Such an alienation cannot be challenged by a subsequently born or adopted son. But if another member was in the womb of his mother at the time of alienation, he does not have the power of alienation, and the member on his birth can challenge such alienation or he may ratify it on attaining majority.
Under Mitakshara School of Hindu Law, power of alienation cannot be exercised by any member except Joint family property can be alienated for following purposes only:
(a) Legal necessity
(b) Benefit of estate
(c) Acts of indispensable duty
(d) For payment of antecedent debt of father.
Karta can alienate the joint family property with the consent of coparceners even if none of the above exceptional cases exist.
If alienation is neither for legal necessity nor for payment of antecedent debts etc. other coparceners are entitled to the declaration that alienation is void and is done without consent. However when there is sole surviving coparcener, then he has full right of alienation of 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.
However an alienation of joint family property made by father, when there being no male issue in existence at the date of alienation, then it is valid even though made without necessity. Such alienation can not be objected by son conceived and born after the alienation on the ground that it was made without legal necessity. Moreover, an alienation made neither for legal necessity nor for payment of antecedent debts, by a father, without consent of son living, cannot be challenged by a subsequently conceived and born son when living sons either have ratified it or have predeceased their father and no other son was conceived or born at the time of alienation.
Therefore in this case, right to challenge alienation was vested in B. But he, during his life time did not challenge the alienation and predeceased his father `A’. Father become sole surviving coparcener and was free to alienate joint family property even without legal necessity. At the time of alienation `C’ was not even in the womb of his mother. He was conceived and born subsequent to alienation made by A, therefore, he has no right to challenge the alienation of property made by his father.
(i) ANTECEDENT DEBT : The father of joint family may sell or mortgage the joint family property including the son’s interest therein to discharge a debt contracted by him for his own personal benefit and such alienation binds the sons provided :
(a) the debt was antecedent to alienation and
(b) it was not incurred for an immoral purpose.
In Sashi v. Subhash, AIR 1972 Del 84 it was observed that the father can himself alienate the joint family property for the discharge of his personal debts and sons can challenge it only if debts is tainted i.e. debts were taken for immoral purpose.
Doctrine of antecedent debts is an example of what father can not do directly he can do indirectly. Generally a father can not alienate joint family property for obtaining money for his personal use. But he can take personal debts and failing to pay it, alienate the joint family property, such alienation is binding on the sons.
Mulla in his Principles of Hindu law has stated “Where the sons are joint with their father and debts have been contracted by the father for his own personal benefit the sons are liable to pay the debts, provided they were not incurred for an illegal or immoral purpose.” (S. 298).
In Prasad v. Govinda Swami, AIR 1982 SC 84 Supreme Court observed the validity of an alienation made to discharge an antecedent debt rests upon the pious duty of the son to discharge his father’s debt not tainted with immorality. “Antecedent debt” means antecedent in fact as well as in time, that is to say, that the debt must be truly independent of and not part of the transaction impeached. The debt may be a debt incurred in connection with a trade started by the father. The father alone can alienate the sons’ share in the case of a joint family. The joint family property for payment of an antecedent debt is the privilege only of the father, grandfather and great-grandfather qua the son or grandson only. No other person has any such privilege. There is, however, another condition which must be satisfied before the son could be held liable, i.e., that the father or the manager acted like a prudent man and did not sacrifice the property for an inadequate consideration. In the instant case on the finding arrived at that the consideration for the sale deed in question was thoroughly inadequate, the sale could not be upheld, an obligation of religion and piety which is placed upon the sons under Mitakshara law is to discharge the father’s debt where the debts are not trained with immortality.’
(ii) MITAKSHARA COPARCENARY : Coparcenary under Mitakshara school is a narrower body of persons within a joint family and consists of father son, son’s son and son’s son’s son. Like joint family to begin with it consists of father and his three male lineal descendants in its continuance, the existence of the father-son relationship is not necessary. Thus a coparcenary can consist of grandfather and grand son.
Mulla in his `Principles of Hindu Law’ (12th edition) at page 313 has stated JOINT HINDU FAMILY consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A daughter ceases to be a member of her father’s family on marriage and becomes member of her husband’s family. The joint and undivided family is the normal condition of Hindu society. An undivided family of Hindus is ordinarily joint not only in estate but also in food and worship. At page 314 Mulla stated Hindu Coparcenary is much narrower body than the joint family. It includes only those persons who acquire by birth an interest in joint or coparcenary property. The conception of joint Hindu family constituting a coparcenary is that of common male ancestor with his lineal descendants in male line within four degree counting from and inclusive of such ancestor. No coparcenary can commence without common male ancestor though after his death it may consist of collaterals. No female can be a coparcener under the Mitakshara law(now after 2005 amendment she can) . Even a wife though she is entitled to maintenance out of her husband’s property and had to that extent an interest in his property but she is not her husband’s coparcener.
In State Bank of India v. Ghamandi Ram, AIR 1969 SC 1930 Supreme Court observed that the coparcenary property is held in collective ownership by all the coparceners in a quasi corporate capacity. Coparcenary are : Firstly the lineal male descendants of person upto third generation acquire on birth ownership in ancestral properties of such persons. Secondly that such descendants can at any time work out their rights for partition. Thirdly that till partition each member has got ownership extending over the entire property conjointly with the rest. Fourthly that as a result of such coownership the possession and enjoyment of properties is common. Fifthly that no alienation of property is possible unless it is for necessity without the concurrence of coparceners. Sixthly that the interest of a deceased member passes on his death to surviving coparceners.
(iii) PIOUS OBLIGATION : Under Mitakshara school of Hindu Law, the sons (Expression `son’ throughout includes sons, and son’s son and son’s son) are under pious obligation to pay the debts of their male lineal ancestor i.e. father, grand father, great grand father provided the debts were not incurred for illegal or immoral purpose. The liability to pay the debts contracted by father though for his own benefit arises from an obligation of religion and piety to discharge the father’s debt. It is thought that if a person’s debt are not paid and he dies in the state of indebtedness, his soul may have to face evil consequences.
In Sat Narain v. Sri Kishan Dass, AIR 1936 P.C. 277 the Privy Council held that the basis of doctrine is spiritual and its sole object is to confer spiritual benefit on the father. This doctrine was not based on pious obligation of the sons to see their father’s debt is paid. The condition is that the debt must not be for an immoral or illegal purpose.
Present article is for educational purposes alone, please take independent Legal advice from a professionals.
Advocate Prakhar Gupta, Arms Length Legal