Page 14 of 18

CHAPTER 3 COPARCENARY

begotten and is born a year later. This son will not acquire any interest in the coparcenary property held by his
brothers. No person has a right by birth in the property of the brothers, but has such a right in the property of the
father, or lineal male ascendants up to three generations only. Here, since the father himself does not have any
interest in the original coparcenary property, the son begotten after the renunciation will also not have any interest
in it. It has been held by the Bombay High Court that renunciation of share by a coparcener who continues to be a
member of joint family after renunciation does not deprive his sons, including the after born sons, of a share in the
joint family property when they continue to be coparceners.65 The judgment does not seem to be correct with
respect to sons begotten after such renunciation as it would virtually mean giving a right by birth to such son in the
property held by the collaterals. For example, in Fig. 3.8, three brothers A, B and C along with A’s two sons
constitute a coparcenary. A renounces his share in favour of the other two brothers.

Fig. 3.8

Since S1 and S2 also have a right by birth, the same will not be affected by such renunciation as it merely reduces
the number of sharers. The individual share of A, that was a probable 1/9th will pass on to the whole body of
coparceners including his own sons. Now S3, who was begotten after such renunciation is born to A, who has
already renounced his interest with respect to the other coparceners in the family. The relation of S3 is that of a
brother (with regard to S1 and S2 ) and of a nephew as regards B and C. A son acquires a right by birth in the
property held by the father (who in this case does not have any property) and not in the property of brothers or
uncles. Therefore, a son begotten after renunciation by the father of his interest in the property, cannot claim any
share in the original coparcenary property.

(ix) Right to Restrain Improper Acts

A coparcener who commits an act that is either improper, illegal or prejudicial to the interest of the joint family
members or the coparcenary property including common enjoyment and possession, can be restrained by an
injunction from doing such an act. One coparcener alone in presence of others cannot maintain such a suit, as a
suit restraining such action must be filed on behalf of all the coparceners. Where all the coparceners are living in
the joint family house and one of them improperly and illegally prevents the others from using a common staircase,
an injunction can be obtained against him. The court’s powers are restricted to the acts of illegitimate use of family
property or acts amounting to ouster, or acts of waste with respect to property only. Where an individual coparcener
commits an improper act and the rest of the family is affected, all the family members have to join in the suit against
him. But where one of the coparceners is ousted from the family property’s enjoyment, he can file a claim
individually against the whole of the family. Similarly, where a decision has been given by the court against the joint
family, one coparcener alone can appeal against it even though the other members including the Karta do not join
him.66

(x) Right of Alienation

As a general rule a Mitakshara coparcener does not have a right to dispose of his undivided share in the
coparcenary property by alienation67 unless all the coparceners give a valid consent to it.68 However in Bombay,
Madras69 and Jammu and Kashmir,70 an undivided coparcener is permitted to either sell or mortgage his share in
the Mitakshara coparcenary without the consent of the other coparceners. Where a mortgage is therefore effected
by a coparcener in these regions, it will be valid to the extent of his share and the mortgagee’s rights will be
unaffected with the deaths and births of the other coparceners in the family.71 In other areas governed by
Mitakshara law, a coparcener cannot alienate his undivided share without the consent of other coparceners even
where it is in favour of another coparcener.72 The reason is that the ownership of the property as a whole vests with
all the coparceners. If all of them agree, they can sell the entire property. Similarly, even a sole surviving
coparcener can alienate the property after making a provision for maintenance and other rights of the female
members. An alienation by a sole surviving coparcener cannot be challenged by any person except an after born
son, provided he was in the womb of his mother at the time of such alienation.

An undivided interest of a coparcener can be sold in execution of a money decree obtained by the court. Such an
 Page 15 of 18
CHAPTER 3 COPARCENARY

alienation is called an involuntary alienation. If the undivided share is attached by the court during the life time of
such a coparcener, it will be sold later and can be purchased by anyone. If before such attachment but after the
filing of the suit the coparcener dies, his undivided interest passes to the other coparceners under doctrine of
survivorship and there will be nothing left, that the court can attach.73

A coparcener cannot alienate his undivided share by way of gift,74 except when it is with the consent of all the
coparceners or it is of a small portion of the property in favour of a daughter or a sister.75 With respect to a
disposition by Will, only a sole surviving coparcener can make a Will of the coparcenary property. As it will be valid
only from the date of the death of such coparcener, if another coparcener is born between the date of executing the
Will and the date of its operation, the Will, will become invalid.76 But if the testator after making the Will dies as a
sole surviving coparcener, it will be valid. Post-1956, a coparcener is competent to make a valid Will, with respect to
his undivided share in the coparcenary property.77

(xi) Right to challenge an unauthorised alienation

The power of alienation of joint family property is with the Karta. He can exercise this power only for some permitted
purpose viz., he can sell the property for legal necessity, benefit of estate, or for performance of some
indispensable religious or charitable duties. Where the Karta is the father, he can also sell the property for payment
of his antecedent debts. Where Karta sells the joint family property for an unauthorised purpose, the coparceners
have three remedies in the alternative:

(a) Where the Karta is contemplating an alienation, but it is not actually effected, a coparcener can seek
partition and separate from the family. Once he separates, Karta cannot sell his share.
(b) Where the act of Karta amounts to a waste or an ouster,78 he can be restrained by an injunction obtained
from the court from committing such waste. However no injunction can otherwise be obtained by
coparceners restraining Karta from alienating the joint family property.79
(c) Where an alienation of the property is already effected, it can be challenged by the coparceners as invalid
and not binding on their shares.80 The burden of proof in such cases will be on the alienee to prove that
Karta was authorised to sell the property.81 However, where the property is sold by the father to pay his
antecedent debts and the sons claim that such alienation was not binding on them as the debts were
contracted by the father for an illegal or immoral purpose, not only do they have to prove the immoral or
illegal character of the debt but also that the creditor had notice of it.

1. The sages declared the partition of the heritable property to be co-ordinate with the gifts of funeral cake. Since it was
said that the son can offer a funeral cake to the father and the grandfather, there was a conflict of opinion on whether
the class of coparceners would include only the sons and grandsons or would also include a great-grandson. However,
Vyavahara Mayukha says that the term grandfather refers to a class as including the great-grandfather also and
therefore a man’s sons, sons of sons and sons of sons of sons can offer spiritual salvation to him and would be his
coparceners.
2. Sunder Lal v. Chittar Mal, (1907) ILR 29 All 1; Anandrao v. Vasantrao, (1907) 9 Bom LR 595 [LNIND 1907 BOM 24]
(PC).
3. For the position after 2005, see infra.
4. Sudarsanam v. Narasimhulu, (1902) ILR 25 Mad 149, 154–157.
5. Sudarsanam v. Narasimhulu, (1902) ILR 25 Mad 149 ; see also Bhagwan Das v. Reoti Devi, AIR 1962 SC 287 [LNIND
1961 SC 465]; Karsan Das Dharamsey v. Gangabai, (1908) ILR 32 Bom 479; Packiriswamy v. Doriaswamy, (1931) ILR
Rang 266; any arrangement amongst members will not have any affect on the devolution of the property, see Sobhag
Singh v. Pirthe Singh, (1950) ILR Nag 160.
6. Comm of Income Tax v. Govinda Ram Sugar Mills, AIR 1966 SC 240 ; Pushpa Devi v. Comm of Income Tax, AIR 1977
SC 2230 [LNIND 1977 SC 258]; see also Desappa Setty v. Vedavathamma, AIR 1972 Mys 283 ; Rajendra Nath v.
Shiv Nath, AIR 1971 All 448 ; CED v. Harish Chandra, (1987) 167 ITR 230 (All); Rameshwar Mistry v. Bebulala Mistry,
AIR 1991 Pat 3 .
7. Sabitri v. FA Savi, AIR 1933 Pat 306 ; Punna Bibi v. Radha Kissen, (1904) ILR 31 Cal 476.
8. Comm of Income Tax v. Govinda Ram Sugar Mills, AIR 1966 SC 240 ; Kanji v. Permanand, AIR 1992 MP 208 [LNIND
1991 MP 172].
 Page 2 of 5
CHAPTER 4 DAYABHAGA JOINT FAMILY

comes into existence or is revived if it was in abeyance. For eg, in a coparcenary consisting of a father F and his
two sons A and B, A demands a partition, takes his share and then gets married. When a son is born to him, he will
form a coparcenary with his son. Similarly a Hindu male having a wife inherits property under the classical law from
his father. He has a son and will form a coparcenary with him. Thus the birth of a son is the starting point or reviving
point of Mitakshara coparcenary. However in complete contrast to it, under the Dayabhaga law, the father so long
as he is alive holds the property as a sole or exclusive owner of it. On his death if he is survived by two or more
sons, they inherit the property and form a coparcenary. It is the death of the father that becomes the starting point
of the formation of coparcenary under the Dayabhaga law and not the birth of the son as is the case under
Mitakshara law. The sons can bring an end to this coparcenary by effecting a partition among themselves but till it is
done, it continues.

(iii) Coparcenary between two Generations of Male Members

While under the Mitakshara law a coparcenary may consist of father and son or father and sons, between brothers,
grandfather and grandsons or even a father, his sons and grandsons, under the Dayabhaga law a coparcenary
cannot consist of a father and son or grandfather and grandsons or a single son. For eg, a family comprises father
F and his son A and the two sons of A, B and C [see Fig 5.1]. On the death of F, A, B, and C cannot form a
coparcenary under the Dayabhaga law as a single son cannot form a coparcenary and he will inherit the property of
the father as an absolute owner with no right passing to B and C over this property. However, if the family is
governed by the classical law Mitakshara law, on the death of the father F, A takes the property with the rights of B
and C in it.

Fig. 5.1

Thus, under the Dayabhaga law there cannot be a coparcenary between a male ancestor and his male
descendants, but that does not mean that there cannot be a coparcenary if more than two generations are present.
Suppose a family comprises the father and his two sons A and B. On the death of the father, A and B will form a
coparcenary. On the death of A, his two sons C and D will take a fixed half each of the share of A, and if no partition
takes place C, D and Bi.e., nephews and uncle, will form a coparcenary [See Fig 5.2].

Fig. 5.2

(iv) Absolute Powers of Disposal of Shares

The father has an absolute right of disposal over the property that he holds so long as he is alive. Similar is the
situation of each coparcener. Since the share of each of the coparceners is a fixed share, his powers of alienation
over this share are absolute.9 He can dispose of his share in the property by way of sale, gift, lease10 or even a Will.

(v) Unity of Possession and Partition under the Dayabhaga Law

Under the Dayabhaga law on the death of the father, where he is survived by two or more of his sons, all of them
inherit his property jointly and hold it as tenants-in-common.11 As the doctrine of fluctuating interest is not
applicablehere, each of them will have a fixed definite share over which they can also exercise full powers of
disposal. For e.g., if the father dies leaving behind three sons A, B and C, each son will have a fixed 1/3rd share in
 Page 4 of 28
CHAPTER 5 CATEGORISATION OF PROPERTIES

other hand, a brother cannot succeed to the property if the owner has a son. The presence of the son is an
obstruction to his right to succeed to the estate, and if the son dies and there is no other nearer heir present, only
then can he succeed.

Right by Birth and Right of Ownership

It is often said that a coparcener has a right by birth and a right of ownership in the coparcenary property. These
two expressions—right by birth and a right of ownership—are used presently to denote the same rights. But under
Mitakshara law, they had a different meaning, while the former referred to a son’s right to inherit the property of the
father, the latter meant a subsisting ownership that a coparcener acquired in the coparcenary property.

In obstructed heritage, the son of a person had no equal right of ownership with the father. Under Mitakshara law,
there were only two divisions—unobstructed and obstructed. The son had a right by birth in the property of his
father, as also that of his grandfather (father’s father), but there was a difference between the two, and
Vijananeshwara explains the difference as30—while the son and the grandsons took an equal interest in the
grandfather’s property on his death, the right of the son over his father’s estate is not equal to that of the father, so
long as the latter is alive and is free from any defect. The father in such a situation, is competent to exercise control
over it and the son cannot demand a partition from the father of his property, but can do so where the grandfather’s
property is concerned. The mode of enjoyment of the father’s separate property is determined by the doctrine of
‘Pitru Prasad’31 and shows that there is a difference between the two expressions—right by birth and an equal
ownership. Right by birth refers to the right of the son to inherit the property of the father (of which the father alone
is the owner) by virtue of his birth in his family as his son. It indicates the separate property of the father, but once
he so inherits it, his own son SS acquires an equal ownership over this property. The right of SS therefore, is not
merely a right by birth, but that of a ‘subsisting ownership’, that he can exercise by asking for a partition of this
property.32

These propositions from the Mitakshara are reflected in the later rephrasing of the categories of properties into
ancestral, coparcenary and separate, and that of heritage into succession and devolution by survivorship, though
only to a limited extent.

Incidents of Coparcenary Property

(a) Only a coparcener can hold coparcenary property. A Hindu female generally or a non-coparcener male
Hindu cannot own the property as coparcenary property. Property in the hands of a sole surviving
coparcener, in the absence of female members of the joint family, is analogous to his separate property.
(b) Coparcenary property is jointly owned by the coparceners. There is collective title, collective possession
and collective rights of disposal over it. Therefore, there is no general right in favour of any coparcener to
transfer it.
(c) In the coparcenary property, the holder’s son, grandson (son of a son) and a great-grandson (son of a son
of a son) acquire a right of ownership by birth and hence, a right to ask for its partition and demarcation of
their shares. An unauthorised alienation of the coparcenary property can be challenged by them in a court
of law.
(d) The coparcenary property is owned by the coparceners, but is enjoyed by not only the coparceners, but
also by other members of the joint family who are not its owners. They have a right of maintenance,
residence, and of marriage expenses etc.
(e) Unlike separate property where the title and enjoyment vest in the same person, in a coparcenary property,
the title vests in the coparceners but the right of enjoyment is with all the joint family members.
(f) unlike separate property, where the title, possession and enjoyment and right of alienation vests in the
same person, here the right of alienation of the complete property can be exercised not merely by all the
coparceners collectively but in some specific situations by the Karta /father only even without the consent
of the other coparceners.
(g) On the death of a coparcener, his interest in the coparcenary property is taken by the surviving
coparceners under the doctrine of survivorship, and the laws of inheritance do not apply. In the case of a
sole surviving coparcener, upon his death, the property goes by inheritance, to his legal representatives.
(h) Unlike separate property or exclusive property that cannot be explained by any other description or
character, whether it is seen with respect to the descendants of the owner or by his collaterals or by
 Page 5 of 8
CHAPTER 6 KARTA

decision. He may or may not pay a fixed amount of maintenance to any member, and even if he enters into any
kind of agreement to this effect, he is free to repudiate it at his pleasure, only to enter into any other kind of
arrangement, or no agreement at all. If there is an emergency that requires an application of money, issues like
from where the money is to be raised, whether it is to be raised at all or not and what action is to be taken, would be
for the Karta to decide, as that is an inherent part of management. No member of the family, and for that matter, not
even the court, can force the Karta to take a particular decision, as that would mean an interference in his inherent
powers of management.

Right of Representation

The Karta has a right to represent the family in all legal, social, religious and revenue matters, including litigations,35
with respect to matters connected with immovable properties or otherwise. A suit will be filed in a court by the family
in his name and likewise, a suit filed against the family will be defended by him. The joint family, therefore, acts
through the Karta, as it has no corporate existence, and a decree passed against the Karta binds all the members,
including minors,36 irrespective of the fact that they were not direct parties to the suit. It is presumed that the Karta
represents the family in all legal proceedings and there may not be a specific mention of him being in the
representative capacity,37 unless it can be shown that he himself is claiming an interest that adversely affects the
interests of the family.38 The Karta is expected to pursue the litigation with utmost sincerity, but if he does not do so
and because of this, the family loses a case or a decree is passed against the family, such decree cannot be set
aside on the ground that, had the Karta been more vigilant, the family might have won the case.39 Similarly, where
the father represents the minors in a suit, the contention that his actions are not in the interests of the minors, will
not alter the binding nature of the judgment.40

Power to receive and spend the Family Income

As aforesaid, the right to receive the joint family income is one of the inherent powers of the Karta, in the exercise of
the management of joint family affairs. The income, from whichever source, will be received by him. The decision of
how to spend this joint family income and on whom to spend it, is with the Karta. He is not under any obligation to
economise or save, as in the case of an agent or a trustee.41

The Karta can spend the income for the maintenance of family members and for one of the permitted purposes,42
i.e., legal necessity, benefit of estate and for performance of religious and indispensable duties. He can spend the
money for providing for the residence of the family members, including for the maintenance of a destitute
daughter.43

Powers of Alienation

The Karta’s power of alienating the joint family property are limited or qualified, and can be exercised with the
consent of all the coparceners. Where the coparcener does not give consent or is incapable of giving consent,
being a minor, the Karta can alienate the property only for legal necessity or for performance of religious or
charitable purposes or where the transaction would amount to benefit of estate. In such cases, the alienation would
bind all the members of the family, including minors.44 In the case of an unauthorised alienation, the coparceners
have a right to challenge it and get a decree setting it aside.

Liability to Account

The Karta is not bound to keep accounts of how he has spent the family funds, as he is presumed to act in the best
interests of the family, but where a coparcener demands partition, he can require the Karta to give him accounts.45
The Karta has to give him accounts for the money he had actually received and not what he could have received if
he had managed the property in a better manner.46 Further, he can only be asked to render the accounts as they
existed on the date of the demand47 and he cannot be forced to render past accounts,48 unless there are charges of
fraud, misappropriation or conversion of joint family property into his personal acquisitions,49 or the nature of
business is such that necessitates proper accounting at all times. In such cases, the Karta has to give accounts to a
member demanding it,50 at the time of partition. The coparcener can also refute the stand of the Karta where the
accounts are not acceptable to him, on the ground that either the Karta has not spent the money that he claims to
have spent,51 or the Karta has not been honest in showing the properties available for partition and has not included
all the joint family properties.

In Bengal, however, for families governed by Mitakshara or Dayabhaga law, a coparcener has a right to require the
Karta to give him accounts of the dealings with respect to the joint family property, including that of the income and
 Page 3 of 26
CHAPTER 8 ALIENATION OF JOINT FAMILY PROPERTY

the court is not empowered to encroach upon this power, unless the validity of the transfer is challenged before it.
However, in case of waste or ouster, an injunction can be granted.14

Where the coparceners do not consent to the alienation, they have two remedies in the alternative. The first can be
exercised by them before the alienation is complete and the other, after its completion. The first remedy is that a
coparcener, who does not want to go ahead with the Karta with this intended transfer, can demand his share in the
joint family property15 and cease to be a member of this family. The moment he demands his share with a clear
intention that is communicated to the Karta, the Karta becomes incapable of touching his share, as that passes with
the adult coparcener, to his family. If he is single, he takes it exclusively as a sole surviving coparcener (for the time
being, till a son is born to him) and if he has sons, his branch will take his share collectively, but the Karta will be
divested of the power to manage this share. He can exercise the power to transfer only the remaining property, i.e.
the original minus the share of the separated member. Even a minor coparcener can demand a partition by
instituting a suit in a court through the next friend, but in these cases, whether or not a partition can be effected,
would be subject to the outcome of the suit.16 However, the moment a suit for the partition of the joint family
property is instituted in the court, either by a minor or a major coparcener, the alienation of the property (if effected)
will be subject to the decision of the court, due to the operation of the doctrine of ‘Lis Pendens’.17

The second remedy is available where the transfer has been effected. If it has been effected without the consent of
the other coparceners, they can challenge the validity of the transfer in a court of law, on the ground that none of
the three categories for which the Karta is permitted in law to alienate the property, existed.18 The court in such
cases, will determine whether the Karta was legally authorised to transfer the property or not. Where the court
comes to the conclusion that the transfer was valid, it will bind the shares of all the members of the joint family,
including the one who impugns the transfer, but where the court decides that the transfer was without judicial or
legal authorisation, the transfer would be void and the alienee would be directed to deliver the property back to the
joint family.

RIGHT TO CHALLENGE ALIENATION IS NOT OPEN TO NON-

COPARCENERS
The validity of an alienation effected by the Karta can be challenged only by the other coparceners who do not give
their consent to the alienation. An alienation effected by Karta cannot be challenged by any other member of the
family who is not a coparcener. For instance females who are members of the joint family but are not coparceners
cannot challenge the validity of the alienation effected by the Karta. In Ananda Krishna Tate v. Draupadibai Krishna
Tate, 19 an alienation effected at the behest of the joint family was challenged by the mother and the wife of the
coparcener. It was held that the mother and the wife do not have the capacity to challenge the alienation as they
are not coparceners. They do not have a right by birth in the coparcenary property. They can get a share at the time
of the partition if and when it actually takes place but till the family is joint they have a right of maintenance out of
the joint family property but cannot acquire an interest in it.

LEGAL NECESSITY
The term ‘Legal Necessity’ is not present in the religious texts and is of a later origin. Its concept has evolved over
time and as illustrated consistently by the court, it has moved beyond the ‘Apatkale’ and ‘Kutumbarthe’ specified in
the Dharmashastras and what has emerged is a combination of the two.

‘Legal Necessity’ literally, means any necessity that can be sustained in law or justified in law. With respect to joint
family, it means a necessity of the family, with respect to its members and in certain cases, also with respect to its
property, that can be justified in law. Thus, where the term ‘legal’ signifies its justification in law, ‘Necessity’
connotes the existence of a situation, a need or a purpose that requires money, and that the family does not
presently have that kind of money or alternative resources, with which that need can be satisfied. It does not mean
an actual compulsion but pressure that is serious and sufficient in law,20 e.g., the family has to pay debts for which
money has to be raised. The pressure of debts is sufficient and it is not necessary that the creditors have either
threatened to go to the court or have actually filed a suit in this connection.21 However, if a decree has been passed
by the court, a sale would undoubtedly be justified.22
 Page 11 of 26
CHAPTER 8 ALIENATION OF JOINT FAMILY PROPERTY

from the ruling of the Bombay High court in Jinnappa Mahadevappa v. Chimmava 30127, wherein, Rangnekar J. had
held that under Mitakshara Hindu law, a father had no right to make a gift even of a small portion of joint Hindu
family immovable property in favour of his daughter although it is made on the ground that she looked after him in
his old age. The judge had observed:

Undoubtedly the gift is a small portion of the whole of the property, but if one were to ignore the elementary principles of
Hindu law out of one’s sympathy with gifts of this nature, it would be difficult to say where the line could be drawn, and it
might give rise to difficulties which no attempt could overcome.

In the present case the father had not executed a gift but the alienation of the property was by way of sale. However
the consideration for the sale was not adequate but far below what the property could have fetched in the market. In
reality it was in lieu of the amount that the daughter had spent on her father. Thus it was akin to compensation. The
court observed that even where the consideration was inadequate this alone would not lead to a conclusion with
respect to the invalidity of the sale if it was for an authorized purpose, and payment of one’s debts was included in
legal necessity, hence the sale was justified and was valid.

CHALLENGE TO ALIENATIONS
The title of the coparcenary property is with all the coparceners in a Hindu Joint family and its alienation would be
valid only where all the coparceners collectively decide to effect it. Where all the coparceners do not consent to
alienation or some are incapable to give consent owing to minority, Karta is empowered to alienate the joint family
property even without the consent of any coparcener, but only under certain specified situations such as legal
necessity, or for benefit of estate or for the performance of certain indispensable religious or charitable duties. The
validity of this alienation can be challenged by any coparcener, in a court of law on the ground that it is not for the
permitted purposes and would not be binding on them. This challenge is open to only the coparceners and not to a
widow of a coparcener31128. However, it is amply clear that one of the undivided coparcener alone cannot alienate
the coparcenary property even to the extent of his share even for a permitted purpose as this authority is available
only to Karta. Such alienation would be void and not binding on the joint family property at all. Thus where the
property was situated in the Madhya Bharat erstwhile region32129 and the parties were governed by the Mitakshara
law, a sale deed executed by one of the coparceners with respect to only his share in the undivided coparcenary
property without the consent of the other coparceners and without partitioning the property by metes and bounds,
was held as void. Similarly, in another case33130, the owner of the property had a wife, one son and four married
daughters. After his death, half of the property was alienated by the son even though he owned only one sixth of
the undivided share in the property. The court held that the sale deed would be valid only to the extent of one sixth
undivided share of the son.

STATUS OF UNAUTHORISED ALIENATION

An alienation without express authorisation of all the coparceners or where it is outside the three permitted
purposes is not void, but merely voidable at the option of the other coparceners who, if major, did not consent to
this alienation, or were minors at that time. An adult coparcener who consented to the alienation cannot later
challenge its validity. Where the coparceners, though against the alienation, do not express their dissent by
challenging it as invalid or by asking for partition and ascertainment of their shares before it is effected, the
alienation remains valid.

BURDEN OF PROOF
Where the validity of an alienation of the joint family property is challenged in a court of law, the burden of proving
that the Karta had the competency to alienate the property, is on the alienee (i.e., the one in whose favour the
transfer has been effected) and not on the Karta, irrespective of the fact that the Karta may be alive. This rule is in
 Page 12 of 26
CHAPTER 8 ALIENATION OF JOINT FAMILY PROPERTY

tune with the principle that where a transferee enters into a transaction with a transferor who is not the exclusive
owner of the property, but has limited or qualified powers of alienation, the duty is on the transferee to act with
caution and due diligence and enter into the transaction only when he satisfies himself after making bonafide
inquiries about the transfer being permissible in law. An unauthorised transfer is prejudicial or against the interests
of the coparceners and the alienee is seen here as the beneficiary. The possibility of this transfer being challenged
in future and being declared invalid by the court is enough for the alienee to make the Karta explain to him, the
situation that the family is confronted with and the necessary action that the Karta is contemplating.

Factual Difficulties

(i) Where the alienation by the Karta is challenged as invalid, the alienee has to prove that it was either for
legal necessity or for the performance of religious or indispensable duties or was one that would bring
benefit to the family estate. These situations that are essentially family matters, if asked to be proved by
the alienee, who may be a total stranger, would be virtually asking him to peep into the family affairs of
somebody else, which may be very difficult for him, if not impossible.
(ii) The alienee has to not only prove the existence of a purpose, but he also has to show that the family had a
necessity to transfer the property,34131 i.e., he has to show that the family did not possess enough
alternative financial resources from which the required money could be raised. Financial affairs are again a
private matter of the family and the alienee may have difficulty in proving that.
(iii) The utilisation of the money raised after the transfer is effected, has a strong bearing on the justification of
the transfer. The purpose and also the necessity, may co-exist but the misuse of money by the Karta, who
is entrusted with the responsibility of looking after the welfare of the family, cannot be ruled out. For
example, A Karta has a 20 year old unmarried daughter and the family does not have enough money to
bear her marriage expenses. He sells the family property against the wishes of his major sons, and uses
the money to pay off his personal debts, contracted for immoral purposes. Once the alienee pays the
consideration, even with the knowledge that a legal necessity exists, he can never control the application of
the money by the Karta. Therefore, the alienee can neither assess independently, the needs of the family,
nor can he control the application of the money that he pays for the property, once he parts with it.
(iv) One of the most important difficulties that an alienee may be confronted with, is the time taken in the
adjudication of the disputes. Litigation is very time consuming and with the hierarchy of the courts and the
ability of the litigants to pursue the matter to the highest courts, these kind of property related cases may
go on in the courts for several years. Meanwhile, the value of the property goes up manifold, in comparison
to the appreciation of the consideration or cash that the alienee might have paid towards this property.
Where the transaction is declared invalid after around 35–40 years, the consideration plus interest on this
money will be much less than the value of the property that the alienee would have to give back to the joint
family. For example, in Arvind v. Anna,35132 the transaction executed in 1935, was challenged in 1953 and
ultimately decided in 1980, i.e., 45 years later than the date of the transfer. The alienee was asked to prove
the existence of legal necessity with respect to a transfer that took place 18 years back, at the lower court
level. Similarly, in Ram Sunder v. Lachmi Narain,36133 the sale was questioned 14 years later.

Though one can hardly sympathise with the alienee where the real owners (coparceners) were deprived of their
shares in the property due to an unauthorised transfer by the Karta, yet cases of fraud by the Karta, or of an actual
collusion between the family members putting the alienee in difficulties at a later point of time, cannot be ruled out,
and to insist upon a strict proof of existence of a purpose, a necessity and a proper application of money etc, by the
alienee, can be disadvantageous to his interests, and also against the principles of justice.

Rules Governing Burden of Proof

In order to avoid cases of misuse of these beneficial provisions by the family members, to the disadvantage of the
alienee, yet at the same time, without jeopardising the interest of the coparceners, the courts relaxed the rules of
burden of proof, making them practical, workable and rationale. The principles laid down by the courts are as
follows:

(i) The burden of proving the validity of the alienation is on the alienee.
(ii) The alienee has to show that he had made reasonable and appropriate inquiries with respect to the fact
that the alienation was for legal necessity, performance of indispensable religious duties or would have
amounted to a benefit to the estate of the joint family and that the Karta had acted in the interest of the
family.37134
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CHAPTER 8 ALIENATION OF JOINT FAMILY PROPERTY

(iii) Since the Karta is not the sole owner of the property and has limited or qualified powers of disposal over
the joint family property, the nature of inquiries by the alienee should be such as would be made by a
reasonable prudent person, who as a transferee, deals with a transferor having only limited powers of
alienation. The transaction should be finalised by the alienee only when he satisfies himself with respect to
the competency of the Karta to effect the alienation.
(iv) The alienee has to prove that the necessity existed, that the family did not have alternative resources from
where money could be raised and that there was sufficient pressure on the family to sell the property.
(v) Mere recitals in the transfer deed do not prove the validity of the alienation,38135 but only have the effect of
putting the alienee on guard, to probe further into the matter, e.g., a recital in the mortgage deed executed
by the Karta may say that the property is mortgaged to use the loan for payment of government dues.
Whether these dues exist, whether the family has alternate resources to pay them off or not, and whether
the amount of dues is in consonance with the consideration or not, are the facts that must be ascertained
by the alienee, from the Karta, the coparceners or from other family members or even through independent
means.
(vi) The alienee must show that he had acted honestly and his actions were not mala fide. Where the
alienation became unavoidable due to a mismanagement of property by the Karta, the alienee should not
be a party to the same.
(vii) The alienee has to prove that he had paid a fair price for the alienation. Where the consideration paid is
unreasonably low, the transaction, on the face of it, would not be justified, as a need based transfer can
never be for inadequate consideration.
(viii) The alienee is not bound to see the actual application of the money advanced or of the consideration and it
is sufficient for him to show that he had became a party to the transfer after making due inquiries. It is in
tune with the practical reality that after the payment of consideration, it is impossible for the alienee to
control the utilisation of the money.39136 However, if he contends before the court that he had knowledge of
the existence of a purpose and also that the money was used for that purpose, then the burden of proof is
on him to show that.40137
(ix) A lapse of time does not affect the onus of proof regarding the validity of the alienation, but it may give rise
to a presumption of acquiescence or save the alienee from adverse inferences arising from the scanty
proof,41138 which might be offered, on his behalf.

Recitals of Necessity

Recitals of necessity in the transfer deeds executed by the Karta are not conclusive proofs of the existence of
necessity justifying the transfer, but are admissible in evidence, and if supplemented with other proof, can be of
importance with the passage of time. In the absence of contradictory evidence, their evidentiary value increases
and they can be used to fill in the gaps obliterated by time.42139

Rate of Interest

The Karta can mortgage the joint family property and raise a loan, on reasonable commercial terms.43140 Where
the alienation is in the nature of a mortgage of the family property and the interest rate charged is very high, not
only will the alienee have to show that there was sufficient pressure on the family to mortgage the property, but he
can also be called upon to show that the rate of interest charged was reasonable44141 and not excessive.45142 The
court has the power to reduce the rate of interest if it is unreasonably high, at the same time, maintaining the validity
of the transfer.46143

FATHER’S POWERS OF ALIENATING THE JOINT FAMILY PROPERTY

As the seniormost male member is the Karta of the family, the father would usually be the Karta of the joint family
and his powers of alienating the property would be the same47144 as discussed above. In addition to that, he can
make a gift of a reasonable portion of the property, to his daughter,48145 and can also sell or mortgage the property
for payment of his antecedent49146 debts (personal), where they were not contracted for an immoral or illegal
purpose.50147 It may be a debt incurred in connection with a trade started by the father51148 or for constructing a
house.52149
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CHAPTER 8 ALIENATION OF JOINT FAMILY PROPERTY

Where the Karta happens to be not the father but the elder brother, the younger brothers are not bound by the
alienation to satisfy his personal debts unless it is for legal necessity or for the benefit of the family.53150

Where an alienation by the father is challenged by his sons, on the ground that the debt contracted by the father
was for an immoral or illegal purpose, the alienee has to prove that he had acted after making bonafide inquiries
and had paid a fair price.54151 If the alienee proves that he had acted honestly, then it is upon the sons to prove that
the debt was contracted for immoral purposes.55152 They have to show a direct connection between the debt and
the immorality, if they set up a plea that the father lived an extravagant or immoral life.56153

A Will executed by the father, of the entire joint family properties, including the share of the sons, even post 1956,
will be invalid.57154

COPARCENER’S POWERS OF ALIENATION

Sole Surviving Coparcener

The ownership of the coparcenary property is with the coparceners, and if there are several coparceners, the whole
of the property can be alienated with their consent. This is in consonance with the basic incidents of ownership.
Similarly, where there is only one coparcener, he has the freedom to treat the property as his separate property and
dispose it of at his pleasure. This power can be curtailed only in some specific situations. Where a female member
has a right of maintenance out of this property, the property cannot be sold without securing her maintenance
rights, and if there is a necessity, such female can enforce her rights against this property.

Where a sole surviving coparcener alienates the property, such alienation can be challenged by a subsequently
born coparcener, provided he was in the womb of his mother at the time of alienation, and not otherwise.

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., of a sole surviving coparcener, the
Will, will be valid.

Alienation by a Coparcener of his Undivided Interest in the Coparcenary Property

The interests of every coparcener in the joint family property are that of ownership, possession and alienation, but
these interests can only be exercised collectively, as a general rule. This means that unless all coparceners agree
(and are also capable of giving the consent i.e., they are major and of sound mind), one coparcener cannot
independently sell his individual share.58155

It must be remembered that the Dharmashastras cautioned against indiscriminate transfer of the joint family
property and empowered the Karta to do it only when the alienation was unavoidable, where, but for this transfer,
the interests of the family would have been adversely affected and to protect or benefit the family members or the
property itself, the alienation was necessary. The predominant reason for this was that the joint family property was
a security for the family in times of need and was necessary for its prosperity, and if there were individual wants,
they should be satisfied or met with out of self-acquisitions.

Secondly, a sale of undivided interest in the property to the alienee, who might have been a total stranger, could
mean that the stranger may step into the shoes of an undivided coparcener and may claim a collective right of
possession, enjoyment, title and alienation with the other members. This would literally lead to a situation where the
joint family, in which no person could become a member by agreement or contract, could have total strangers
making a back door entry with comparable, collective rights in the property. In the alternative, the members of the
joint family would have a partition forced upon them, and the handing over of the alienated share to the alienee
would defeat their rights of survivorship. Further, if all the coparceners decide to alienate their undivided shares, it
would lead to an automatic disruption of the joint family at the whims and pleasure of individual members, to the
detriment of members other than coparceners, whose rights over the property will be adversely affected.

Thirdly, the general rule of inalienability of the coparcenary property was with respect to the coparcener’s undivided
 Page 15 of 26
CHAPTER 8 ALIENATION OF JOINT FAMILY PROPERTY

interest in the coparcenary property only, and did not prevent the coparcener from selling his share after
demarcating it with the help of a partition. Competency to sell necessitates a competency to contract. The general
presumption exists (and validly so) that the interests of a minor coparcener will be adequately taken care of by the
father. But where a major coparcener, either solely or with his branch, needed money for personal or for his family’s
purposes, or had a general need, for the satisfaction of which either the Karta was not empowered to alienate the
property or refused to do so, the inalienability of his undivided share will not be an impediment, as he can always
ask for partition (this being one of the inherent right of a major coparcener), specify or demarcate his share and
then alienate it. It was only when he wanted to sell his probable share in the property and at the same time, wanted
to remain undivided, that the restriction applied. That however, gave rise to a problem. Where an undivided
coparcener incurred a financial liability by taking a loan or otherwise, and had no other property which could be
utilised for the satisfaction of this loan or pecuniary liability, he could plead his inability to pay back this financial
liability on the ground that the undivided interest could not be alienated. Though nothing would ordinarily prevent
him from enforcing a partition and selling his share, or the family could collectively decide to alienate the property to
pay off the debt, in absence of such a decision taken either by the coparcener or the Karta, the creditors could be
put to a disadvantage. These beneficial provisions that were meant to protect the interests of the family members
could be misused or exploited by them to their undue advantage and to the disadvantage of the creditors or third
parties.

This rigidity was broken by the courts, initially at the behest of the creditors who wanted repayment of their loan or
execution of money decrees obtained by them from the court against the property of the coparcener (borrower),
even if it meant an undivided interest in Mitakshara coparcenary. The courts directed that the money decree be
enforced against the undivided interest of the coparcener.59156 Such interest when sold through a court auction,
could be purchased by any person. This was the starting point of judicial permissibility of involuntary alienations of
the undivided interest of a coparcener, after a certain amount of conflict. The Privy Council observed: 60157

There can be little doubt that all such alienation, whether voluntary or compulsory, or inconsistent with the strict theory of a
joint or an undivided Hindu family and the law as established in Madras and Bombay, has been one of gradual growth,
founded upon equity, which a purchaser for value has to be allowed to stand in his vendor’s shoes and to work out his
rights by means of a partition.

The court also noted with approval, that under the Mitakshara Law, there was special emphasis on the payment of
debts and therefore, the sanctity that was attached to this obligation enabled them to make a major inroad into the
concept of total inalienability of an undivided interest of a coparcener.

One of the basic limitations of this rule was that if the coparcener died, either before the creditor could institute a
suit in a court of law for getting a money decree passed in his favour, or died during the pendency of the litigation,
but before his undivided interest could be attached at the instance of the court, such undivided interest then, could
not be attached by the court.61158 The reason was that on the death of a coparcener, his undivided interest
devolved by survivorship, on the surviving coparcener and he left behind nothing that could be attached. However,
once the interest was attached by the court, his subsequent death would not result in the application of the doctrine
of survivorship on his interest and the same would be sold in execution of the money decree.

Voluntary Alienations

Sale, Mortgage and Lease

In Bombay,62159 Madhya Pradesh,63160 Madras,64161 and Jammu and Kashmir65162 regions, a coparcener can
either sell or mortgage his undivided interest in a Mitakshra coparcenary, without the consent of the other
coparceners. However, in the regions of West Bengal,66163 Uttar Pradesh,67164 Bihar, Orissa,68165 Punjab69166 and
Delhi,70167 a coparcener cannot sell his undivided interest in a Mitakshara coparcenary without the consent of the
other coparceners, even where it is in favour of another coparcener. In areas where a coparcener is permitted to
alienate his undivided share, a mortgage effected by a coparcener will be valid to the extent of his share and the
mortgagee’s rights will be unaffected with the deaths and births of other coparceners in the family.71168

Alienations without Consideration

Gifts

A coparcener cannot make a valid gift of his undivided share in the coparcenary property, unless it is with the
 Page 16 of 26
CHAPTER 8 ALIENATION OF JOINT FAMILY PROPERTY

consent of all the coparceners72169 or is in favour of all the coparceners to the extent of his total share.73170 A gift
made otherwise, is void74171 and can be recovered by the coparcener who had earlier executed it. A gift by the
father, of a small portion of joint family property, in favour of his daughter,75172 but not in favour of anyone else, is
valid,76173 but a gift by a coparcener in favour of another coparcener, to the exclusion of others is void.77174 There
has not been a change in the law relating to gifts of an undivided share in the Mitakshara coparcenary even after
the passing of the Hindu Succession Act, 1956, and the same position continues presently.

A gift of the property by a sole surviving coparcener in favour of persons who looked after him is valid.78175

Renunciation of Coparcenary Interest

A renunciation is comparable to, but not identical to a gift. It does not amount to an alienation.79176 A coparcener is
empowered to renounce his share in favour of the other coparceners as a whole80177 and not in favour of some, to
the exclusion of others.81178 Once he renounces his share he remains a member of the family82179 as before,
unless there is an intention to separate, but his interest in the coparcenary property comes to an end. With his
renunciation, the shares of the other coparceners fluctuate and increase collectively, as if one member had
died.83180 Therefore, though he is a member of the joint family, he is no longer a coparcener and if a partition of the
property takes place, he is not entitled to get a share. Similarly, a son born to him subsequent to such renunciation,
will not have a right by birth, in the coparcenary property.84181Since a renunciation of the interest in the
coparcenary property is not a ‘transfer’ within the meaning of s. 5 of the Transfer of Property Act, 1882,85182 no
specific formalities are required to effect it,86183 but it must be strictly construed. Renunciation can be conditional or
unconditional. Thus, where a father agreed to renounce his interest in favour of his sons on the condition that they
will maintain him, the renunciation is valid.87184

Will

Pre-1956 : Under the classical Hindu Law, no coparcener, including a father88185 (except in some situations, a sole
surviving coparcener) was empowered to dispose of his undivided share89186 under a Will,90187 even with the
consent of the other coparceners. The father was permitted to make a gift of a reasonable portion of the
coparcenary property, but could not do so under a Will. In fact, testamentary disposition was opposed to the basic
incidents of coparcenary, as a Will, if allowed to be validly operative, could have frustrated the application of the
doctrine of survivorship. In case of a sole surviving coparcener, a Will could be made, but whether it could be validly
operative was to be determined on the date of the death of the sole surviving coparcener. If, at the time of his
death, there was no other coparcener in existence (including a coparcener in the womb of his mother), the
testamentary disposition was valid. But a Will in case of a subsequently born son,91188 such as a posthumous
son,92189 or even an adopted son,93190 was invalid.

Post 1956 : The Hindu Succession Act 1956, which primarily deals with succession to the separate property of a
Hindu, specifically empowers an undivided coparcener to make a testamentary disposition of his undivided interest
in the Mitakshara coparcenary. The expression used in s. 30, ‘Notwithstanding anything contained in the Act or in
any other law for the time being in force’, has an obvious reference and clear intention of abrogating the rule under
Hindu law that prohibited a coparcener from making a Will. Therefore, post 1956, any coparcener can make a valid
Will with respect to his undivided share in the coparcenary property, in favour of ‘anyone’. The class of beneficiaries
will not be limited to family members only, as even a stranger can be given the property under a Will. Therefore,
presently, there is no limitation on the quantum of the property that can be bequeathed, (the whole of it can go by
Will, or a part of it) and no specification with respect to the legatees. It can be given to a coparcener to the exclusion
of the others or to all the coparceners, to his sons or to a non-coparcener, to a family member or to a total stranger,
to a living person or the interest can be dedicated to a religious or even charitable purpose.

Where a coparcener bequeaths his undivided interest in a Mitakshara coparcenary, on his death, the doctrine of
survivorship would no longer apply to his interest. Further, if he has bequeathed his share to a stranger, the latter
will step into his shoes and would be entitled to ask for a partition and specification of the share as it stood at the
time of the death of the testator (coparcener). Where a coparcener makes a Will of his undivided share, it is not
necessary for him to bring it to the knowledge of the Karta or the other members. As a Will is operative only from
the death of the testator, the Karta can alienate the interest so bequeathed, during the lifetime of such coparcener,
for a legal necessity and a situation may arise that there may not be any property that can go under the Will.
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CHAPTER 8 ALIENATION OF JOINT FAMILY PROPERTY

CHALLENGE TO AN UNAUTHORISED ALIENATION

In the states where an undivided coparcener is entitled to alienate his interest in a Mitakshara coparcenary, such
alienation cannot be challenged. However, in the states where he is not permitted to do so, any coparcener in
existence at the time of the alienation,94191 or was conceived and subsequently born alive,95192 can set it aside with
the help of the court.

Challenge by a Coparcener Born after Alienation

Since all coparceners have an interest by birth and coparcenary extends to four generations of male members in
the family, an unauthorised alienation can be challenged even by a son’s son or a son’s son’s son, who are born
after the alienation was effected. But in case the challenge comes from an after born grandson, it is subject to the
following rules:

(i) Where the alienation is by the father, in the presence of his son, who ratifies it,96193 an after born grand
son cannot challenge it.
(ii) Where the alienation is by the father, in the presence of his sons, and the sons do not challenge it and lose
the right to challenge it by law of limitation, the grandson born after the alienation, cannot challenge it.97194
(iii) Where the father alienates the property in the presence of his sons and the sons die during the lifetime of
the father, after such alienation is effected, and consequently, the father remains a sole surviving
coparcener for some time, and then the grandson is born, such a posthumous grandson cannot challenge
the alienation.195
(iv) In case of an alienation by the father in the presence of the sons and a grandson being born after the
alienation but during the lifetime of the sons, and where the sons neither ratify the alienation nor lose the
right to challenge it by law of limitation, an after born grandson can challenge it.196

Rights of Purchaser of an Undivided Share

In the case of an involuntary alienation, i.e., in execution of a decree, the sale of the undivided interest of the
concerned coparcener is permitted in all regions governed by the Mitakshara Law.1197 In states which permit a
coparcener to voluntarily sell his undivided interest in a Mitakshara coparcenary, the alienation is valid to the extent
of the alienating coparcener’s share only.2198

Right to Joint Possession

Rule in Bombay: The purchaser of an undivided interest of the coparcener is entitled to sue for partition of the
property and specification of his share. Once the partition is effected, he can get an exclusive possession of the
same. In case the partition is not effected and the property is delivered to the purchaser, and he takes the
possession, the other coparceners are entitled to have joint possession with him,3199 or they can file a suit for the
recovery of possession from him.4200 In the latter case, the discretion will be with the courts to either pass an order
for evicting the purchaser (which they would normally do if the purchaser was a stranger to the family), or allow him
to retain the joint possession until a partition takes place, as a tenant-in-common, in accordance with the facts and
circumstances of the case.5201 Where the purchaser was a relative and had been in possession of the property for
a long time, the court may pass an order for joint possession, rather than an eviction order.6202 Where the non-
alienating coparceners do not want to have joint possession, the remedy is to sue for partition.7203

Where the property was in the possession of the coparceners, including the share alienated by one coparcener,
and this property has not been partitioned, the purchaser cannot enforce his rights to have joint possession with the
other coparceners, and can only sue for a general partition.8204

Position in Madras , Uttar Pradesh , West Bengal , Patna , Madhya Pradesh.— Where a coparcener alienates
his undivided share in a Mitakshara coparcenary, the alienee gets only an interest to the extent of the coparcener’s
share as it stood at the time of the alienation. Since he does not have a right to a joint possession of the property
with the coparceners,9205 he is entitled to file a suit for partition,10206 making all the coparceners defendants, as the
executing court has no power to direct a partition.11207 He can never be given joint possession, nor can he become
a tenant in common with the other coparceners, and has merely an equity to enforce his rights by enforcing a
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CHAPTER 8 ALIENATION OF JOINT FAMILY PROPERTY

partition. If the possession was delivered to him by the alienating coparcener, he can be ejected at the instance of
the non-alienating coparceners.

Where the coparcener alienates more than what would have been his share in the coparcenary property and the
purchaser claims the total property, including the share of the non-alienating coparcener, the court will only allow
him the specification of the share to the extent of the alienating coparcener’s interest and nothing beyond that would
be given to him.12208 The court can, however, confirm the possession of the coparcener with respect to the
remaining property, at the same time. The purchaser therefore, does not have a right to claim joint possession of
the property with the other coparceners and his suit for partition stands on a different footing in comparison to a suit
for partition filed by an ordinary coparcener, as it does not affect the status of the rest of the joint family. Where
instead of a general undivided interest, the coparcener alienates a specific item out of the coparcenary property or a
share in a specific property, the purchaser’s remedy will be merely to sue for a general partition and he cannot
claim that very property or a share in a specific property.13209 For example, in a joint family, three coparceners
collectively own a house and four pieces of land A, B, C and D. One of the coparceners X, sells D, a land whose
value was to the extent of one-third of the total property, to the purchaser. Since the entire interest is undivided, in a
suit for partition and handing over of the share to the alienee, he cannot insist on obtaining only land D, as which
property will go to which coparcener’s share can be ascertained only after a partition.

The alienee is permitted to stand in the shoes of the coparcener and is therefore, entitled to only that interest of the
coparcener, which the latter had in the property on the date of the alienation. This rule applies irrespective of
whether the alienee is a purchaser at a court auction14210 or in a private sale.15211 The reason for not permitting
him to have joint possession with the coparceners is to avoid the introduction of a stranger into the family, and the
reason why he cannot claim a specific item of property or a share in a specific property even when he files a
partition suit is, that it was the undivided interest that was alienated to him, and till it is undivided, there is collective
ownership and possession and the alienating coparcener himself, is incompetent to claim any specific property or a
portion of the property as his exclusive property, as that would go against the basic incident of unity of possession.
Even at the time of partition, a specific property or portion cannot be claimed by a coparcener, unless there is a
general agreement amongst all the coparceners to that effect. The alienee cannot, therefore, have any better right
than what the coparcener had in the property. If the alienee obtains possession of a specific property, the non-
alienating coparcener can sue him for a partition of the property, without bringing a general suit for partition, but
such a suit has to be a collective suit and a single coparcener cannot individually maintain a suit for a recovery of
property to the extent of his share only.16212

Equities for Refund of Consideration in an Unauthorised Alienation

Where the joint family property is alienated without express or legal authorisation and the alienee pays a
consideration to the transferor, but the alienation is set aside by the court as it was not permitted under Hindu law,
the alienee can proceed against the transferor personally, for a refund of the amount that was advanced by him. If
he was delivered the possession of the property, the coparceners are entitled to have it back from him. The alienee
would be entitled to a refund of the amount by the coparceners, only where he is able to prove (with the burden of
proof being on him) that the consideration that he had paid went to the joint family assets17213 or were used in
paying off charges on the property.18214 Where the coparcener who sued to set aside the sale, had taken a benefit
or an advantage out of the money paid by the alienee,19215 the court will set aside the alienation, subject to the
condition that the coparceners refund the money to the alienee. Even in such cases, there is no necessity for such
an offer to have been made by the coparceners expressly.20216 Where, however, the alienee fails to prove that the
coparceners had benefited from the consideration that he had paid for the unauthorised alienation, the court will set
aside the sale without there being any requirement on the part of the coparceners to refund the amount.

In case the alienation is by the father, and it is set aside at the instance of the son on the ground that it was neither
for a legal necessity, nor for any authorised purpose, the court will set aside the transfer without making it obligatory
on the son to refund the amount paid by the alienee to the father. However, where the sale is partially valid, it will be
set aside on the condition of refund of the excess amount. Where the alienation is by the Karta, not being the father,
the Karta alone is liable, and the coparceners are not bound to refund the money paid to him by the alienee, for an
unauthorised alienation.

LIMITATION
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CHAPTER 8 ALIENATION OF JOINT FAMILY PROPERTY

The limitation period varies depending upon who had alienated the property and the nature of remedy asked for and
is as follows:

(i) Where the alienation was made by the father, of either movable or immovable properties, and the son files
a suit for a setting aside of the alienation, he can do so within a period of 12 years from the date of
alienation.21217
(ii) Where immovable properties are alienated by the Karta or by an ordinary coparcener, and the alienee has
taken possession of the property, and a coparcener files a suit for recovery of possession, he can do so
again, within a period of 12 years.22218
(iii) Where the suit is for a declaration that the alienation is void and not binding on the family, the limitation
time period is 6 years from the date from which the right to sue arises.23219
(iv) Where the challenging coparcener was a minor at the time of alienation, he can file a suit for setting aside
such alienation within three years of his attaining majority.24220 Where there were two minor sons and the
father alienated the property in 1935, including their interest and the elder son lost the right to challenge
the alienation as he did not file the suit within three years of attaining majority, the younger son’s rights
were held not to have been affected.25221 Thus, where the father, having three minor sons, alienated the
property in 1935, and his second son attained majority in 1946, and the third son become a major in 1951,
his suit to set aside the alienation made by the father, and for recovery of possession, filed in 1953, was
within time.26222

1. When the practical effect of the license is the same as that of a lease, the same terms will govern it. Pheku v. Harish
Chandra, AIR 1953 All 406 [LNIND 1953 ALL 8].
2. Haribhan v. Hakim, AIR 1951 Nag 249 ; Narain Das v. Abhinash Chandar, AIR 1922 PC 347 .
3. Basdeo v. Muhammad, AIR 1928 All 617, 116 IC 491, (1929) 51 All 285.
4. Muthoora v. Bootan, (1869) 13 WR 30.
5. Kandasami v. Somakanta, (1912) 35 Mad 177; Shiv Shanker v. Bhola, (1954) ILR Punj 368; Mahadu v. Gajara Bai, AIR
1954 Bom 442 [LNIND 1953 BOM 133](DB).
6. Where it is made without the consent of all the coparceners, when all are major, the alienation so effected would bind
the shares of those of the coparceners who had given the consent. In Uttar Pradesh and West Bengal, it will not bind
the shares of even the consenting members due to a total incapacity of a coparcener to alienate even his own
individual shares.
7. The text of Vyasa cited in Mitakshara is as follows:
Even a single individual may conclude a donation, mortgage or sale of immovable property during a season of distress, for
the sake of the family and especially for pious purposes., Mitakshara I, i, 28,29, Mit I, 1, 30.
8. Hunoomanpersaud Pandey v. Mussamat Babooee Munraj Koonweree, (1854–1857) 6 Moore’s Ind. App 393 (PC).
9. Ragho v. Zaga, (1929) 53 Bom 419, 426; see also Baijnath Prasad v. Binda Prasad Singh, (1938) 17 Pat 549, 561;
Govind Gurunat v. Deekappa Mallappa, AIR 1938 Bom 388, 390; Nagindas v. Mahomed, (1922) 46 Bom 312, 316;
Babulal v. Babulal, (1941) ILR All 343, 349–350.
10. Dhiraj Singh v. Satpal Singh, AIR 2010 (NOC) 526 (All) : 2010 (1) ALJ 431; Jagir Singh v. Amarjit Singh, AIR 2004 P&H
51 .
11. Salamat Khan v. Bhagat, AIR 1930 All 379 ; Khushi Ram v. Mehr Chand, AIR 1950 East Punjab 272.
12. P. Subramania Chettiar v. Amritham, 2003 Mad 153 ; Dhiraj Singh v. Satpal Singh, AIR 2010 (NOC) 526 (All) : 2010 (1)
ALJ 431.
13. Sunil Kumar v. Ram Prakash, AIR 1988 SC 576 [LNIND 1988 SC 20].
14. Sant Singh v. Mata Ram, (1989) 1 HLR 214 (SC).
15. Nuniyappa v. Ramaiah, AIR 1996 Kant 321 [LNIND 1996 KANT 174].
16. Kakamam Pedasubhaya v. Kakamanu Akkamma, AIR 1958 SC 1042 [LNIND 1958 SC 98], [1959] SCR 1249 [LNIND
1958 SC 98]; see also Chelimi Chetty v. Subbamma, (1917) ILR 41 Mad 442. See Lalta Prasad v. Sri Mahadeoji
Birajman Temple, (1920) ILR 42 All 461; Hari Singh v. Pritam Singh, AIR 1936 Lah 504 ; Rangasayi v.