POWER OF KARTA

TO ALIENATE THE
HUF
 Introduction
• Alienation refers to the transfer of property.
• Foreg: sales, gifts, mortgages, and so forth Property
alienations have an additional significance in Hindu
regulation, as, typically neither the Karta (the chief of a joint
family and the properties of such joint family.
• He additionally cares for the customary expenses of the
family and furthermore safeguards the joint family property)
nor some other Coparcener has indisputably the full force of
alienation over the joint family property or over his
advantage in such property.
Alienation of coparcenary
property
• He additionally cares for the normal costs of the family and
furthermore safeguards the joint family property) nor some other
Coparcener has indisputably the full force of alienation over the
joint family property or over his advantage in such property.
• Notwithstanding, under the Dayabhaga school (in this way of
thinking the male descendants don't hold any directly over the
hereditary property after the ancestor's death), a Coparcener has
the alienation directly over his squarely in the alienation property.
• Thealienations related to coparcenary property under the Hindu
law are governed by the Hindu Succession Act, 1956 and the
Transfer of Property Act, 1882.
Karta’s Power of Alienation
• Generally,an individual Coparcener, including the Karta, comes up
short on ability to discard the joint family property without getting
the assent of any remaining Coparceners.
• Inany case, as per the Dharmashastra, any relative is enabled to
distance the joint family property.
• TheMitakshara school’s expression on this - As per Vijnaneshwara,
under 3 excellent conditions, the alienation of the joint family
property by an individual is conceivable:
• 1.Apatkale, for example during trouble;
• 2.Kutumbarthe, for example for the family;
• 3.Dharmarthe, for example for discarding vital obligations.
• Notwithstanding, with the coming of time, Vijnaneshwara's
definition has gone through alteration in two viewpoints. Initially,
the alienation power isn't exercisable by some other relative, with
the exception of the Karta.
• Besides, the joint family property can be estranged for the
accompanying 3 purposes:
• 1.Legal need;
• 2.Benefitting the domain;
• 3.Acts including irreplaceable obligation.
• Neither the Mitakshara nor the Smritikars presented any kind of
force of alienation to the Coparceners over their unified interest in
the joint family property.
• Nonetheless, the literary authority is exceptionally restricted in
such manner.
• The law connecting with Coparcener's alienation power is an
offspring of legal regulation.
• The principal advance arose when it was held that an individual
cash order against a Coparcener could be executed against his
unified revenue in the joint family property.

•A few courts have broadened this guideline for including deliberate

alienations moreover.
In this way the Coparceners' alienation power
can be ordered under the accompanying heads:
• Compulsory Alienation –
• This
alludes to the alienation of the unified interest in the
execution suits.
• The Hindu sages enormously stressed upon the installment of the
obligations.
• The courts held onto this Hindu lawful standard and began its
execution on private cash orders against the joint family revenue
of the judgment-borrower Coparcener.
• InDeenDayal vs. Jagdeep (1876), the Privy Council settled the
law for every one of the schools of Hindu Law, by holding the buyer
of unified interest at an execution deal during the lifetime of his
different obligation gets his advantage in such property with the
force of surveying it and recuperating it through the parcel.
•Deliberate alienation –
•Aftertolerating the way that the unified
revenue of a Coparcener is append able and
saleable during the execution of a cash order
against him, the subsequent stage included,
stretching out the rule to intentional
alienations too.
KANDASAMI VS. SOMAKANDA
(1910)
•Itwas observed in this case that Karta
can alienate the joint family property,
after obtaining the concept of the other
Coparceners, even in the absence of
legal necessity, the benefit of the estate,
or acts involving indispensable
obligation. Provided that the consenting
Coparceners are adults.
Manohar vs. Dewan (1985)
• Dewan Chand, the dad of the appellants, sold off land for Rs. 8000/ - .
• The appellants filed a suit for joint belonging over the said land, claiming that
they comprised a joint Hindu family with their dad, that the land sold was a
coparcenary property, and that the deal was executed with next to no
consideration and lawful need. The suit was challenged by the merchants who
went against every one of the claims and further argued that the deal having
been made to assist the family, and being a demonstration of good
administration was, hence, restricting on the plaintiffs. The Trial Court in the
wake of recording proof of the gatherings negatived the supplication that the
property was coparcenary property and further held that the deal was executed
in return for consideration and lawful need and as a demonstration of good
administration excused the suit. Its discoveries were asserted on advance which
prompted the recording of this second allure by the plaintiffs. Here it was held
that any distance without the assent of Coparceners and furthermore for any
reason barring legitimate need will be void ab initio.
GANGI VS. TAMMU (1927)
• A person had two sons, one of who had predeceased him, leaving only
one son, the present plaintiff. The younger son and his son were the
present defendants. There were also several daughters.
• That person had made 3 wills before his death asserting that the
properties were self-acquired. However, such properties were later found
to be ancestral and thus could not be disposed of through will.
• The Privy Council, in this case, held that dedication of a portion of the
joint family property for the purpose of religious charity may validly be
made by the Karta, if the property allotted is small compared to the
absolute means of the family. Such alienation cannot be made through a
will.
Background and History
• Thetime goes back to when there was no codified law that
governed the inheritance of property among the Hindus. Based on
caste and customs various laws were formed, but difference
practices of these laws can be witnessed in different locations. To
establish a uniform law that would deal with all forms of
coparcenary inheritance under the Hindu law, the Hindu
Succession Act, 1956 was enacted.
• The Hindu Succession Act, 1956 introduced the survivorship rule,
i.e., the property devolves upon the survivor only after the death of
the common ancestor. The inheritance of the ancestral property
depended on this rule. The coparcenary rights on such property
was given only to the male members who fall within the ambit of
three categories of coparceners. They were known as lineal
descendants of the ancestor.
• Women were not considered to be the equivalent legal heirs of the
ancestral property as to male members of the family. The reason
for such exclusivity was based on the argument of marriage where
the daughter will one day marry and become a part of some other
family. The exclusion of wife of the coparcener, was based on the
reason that she does not count as the direct bloodline of the
ancestor. This discriminatory approach towards gender and the
oppression of the fundamental rights of women called for an
amendment of the Hindu Succession Act, 1956.
• Afterfive decades of going back and forth over the topic of
deciding whether a woman has the right to inherit the coparcenary
property or not, the Hindu Succession (Amendment Act), 2005 was
passed. Coparcenary property here means a property that is
inherited by any Hindu from his father or grandfather or great
grandfather. Coparcener is a term used to describe any person who
has the right to inherit the ancestral property by birth.
• It amended the provision which took away the right of daughters to inherit
coparcenary property. In case a Hindu dies then the right on the coparcenary
property shall be equal among the daughters and the sons. It established that
the daughter of a coparcener shall be a coparcener by birth just as is the son.
• The survivorship rule was done away with and introduced Testamentary
Succession and Intestate Succession. In a Hindu Undivided Family, the demand
of partition was entitled to the daughter as is given to son. A daughter on her
own will can dispose-off her share of the coparcenary property.
• In case a partition happens immediately before a female coparcener dies then
the children of such coparcener shall be entitled to inherit the coparcenary
property.
• Hindu Succession (Amendment) Act, 2005 proved to be more gender-neutral. It
cut off the aspects of gender discrimination and oppression of the fundamental
right to equality of women associated with the 1956 Act. It empowered women
to be the coparceners in inheriting the Mitakshara Coparcenary Property. It
upheld the constitutional principles by providing equal rights to women.
However, the Amendment Act came with its ramifications of legal ambiguity.