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MITAKSHARA v. DAYABHAGA SCHOOL

MITAKSHARA v DAYABHAGA SCHOOL Hindu law has two main schools : the Mitakshara school and Dayabhaga school. The Mitakshara (a concise work) is a commentary on code of Yajnavalkya and is written by Vijnaneshwar. The Dayabhaga is a digest of all the codes and is written by Jimutavahana. The Mitakshara is the orthodox school, whereas the Dayabhaga is a reformist school of Hindu law. Mitakshara is the authority for the whole of India except Assam, Bengal and some parts of Punjab. Where a Hindu family migrates from Maharashtra (where the Mitakshara law prevails) to Bengal (where the Dayabhaga prevails), the presumption is that the family continues to be governed by the Mitakshara law unless it is shown that the family has abandoned the law of the province of its origin (i.e. Maharashtra) and adopted the law of the province where it has settled. Thus, the Hindu law is not a lex loci i.e. a local law, but it is, in every sense, a personal law. In the modern Hindu law, schools have relevance only in the respect of the un-codified Hindu law; they have lost all their relevance in regard to the codified Hindu law (Acts). The Hindu Succession Act, 1956, has abrogated the difference between the two schools and has provided for a uniform law relating to succession of Hindus Mitakshara and Dayabhaga schools differ on certain basic aspects:— (i) Under Mitakshara, the basis for the law of inheritance is the principle of propinquity i.e. the nearness in blood relationship or consanguinity of blood. This is purely a secular principle and means that sons and daughters should inherit equally as they are equally nearer to the deceased parent. However, agnates are preferred over cognates. Under Dayabhaga, the law of succession is based on religious efficacy or spiritual benefits (offering of oblations or Pindadan) and therefore a person who confers more religious benefit on the deceased is preferred. It therefore rejects the preference of agnates to cognates. (ii) With respect to joint family under Mitakshara, the son, grandson, and great grandson have a right by birth in the joint family property having an equal interest with the father. Under Dayabhaga, the son or grandson or great grandson has no such right till the father is alive and the father can dispose of the property at his pleasure. After his death, property (ancestral or separate), devolves by inheritance or succession. Thus, there is no right to the son to ask fo a partition during the lifetime of the father. (iii) Under Mitakshara law, the coparceners have community of interest and unity of possession but their interest in the property fluctuates. Under the Dayabhaga law, coparceners have specified and ascertained shares in the JFP. The interests do not fluctuate but the coparceners have a unity of possession. (iv) While under the Mitakshara system, the brothers and even collaterals so long as they are joint do not have a right to dispose of their shares, under the Dayabhaga system, the brothers/collaterals have such right. (v) Under Mitakshara, the doctrine of survivorship applies and on the death of a coparcener his share is taken by the surviving coparceners. Under Dayabhaga, in the event of a coparcener dying issueless, his widow has a right to succeed to his share and to enforce a partition on her account.

COMPOSITION OF JOINT FAIMLY

A Hindu joint family consists of the common ancestor and all his lineal male descendants up to any generation together with the wife or wives (or widows) and unmarried daughters of the common ancestors and the lineal male descendants.

It has to be clearly understood that the existence of the common ancestor is necessary for bringing a joint family into existence, but for its continuance common ancestors is not a necessity. The death of the common ancestor does not mean that the joint family will come to an end. Upper links are removed and lower ones are added and in this manner, so long as line does not become extinct, the joint family will continue.

It is a remarkable feature of Hindu law that even an illegitimate son is a member of his father’s joint family. Sometimes even widowed daughters may return to their father’s family and may lay claim on the bounty of the joint family. The ancient Hindu law recognised their right of maintenance. The Chief characteristics of a Hindu joint family (Mitakashra) are : - - - 1. It is a creation of law. In other words, it is legally recognised unit which can neither be created by the act of the members nor by an agreement between the parties. A stranger cannot be admitted into it except by marriage or adoption. 2. It has no legal entity distinct and separate from that of the members who constitute it. It is not a juristic person. It is not a corporation either. 3. It is a unit in all affairs it is represented by its Karta (head or manager). 4. Status can be acquired into it only by-birth, marriage to a male member, and adoption. 5. Ouster of a member from joint family - status can be lost by - conversion to a non-Hindu faith, marriage to a non-Muslim under the special marriage Act, 1954, on being given in valid adoption, and, on partition. 6. It is different from a composite family - a creature of custom and agreement, where two or more families agree to live and work together, pool their resources, throw their gains and labour into the joint stock and shoulder the common risk. The primary objective of composite families is convenience and efficient management of the family properties. 7. A joint family may consist of a single male member and his wife and daughters, or a single male member and a widow of coparcener, or even when there are only widows. The rule is “ that even on the death of sole surviving coparcener, the Hindu joint family does not come to an end so long as it possible is nature or law (i.e., adoption) to add a male member to it ” (Sitabai v. Ram Chandra AIR 1970 SC 343). A single male or female cannot make a joint family. There must be at least two member to constitute it. Hindu undivided Family - For the purposes of tax assessment, the revenue statutes use the expression ‘Hindu Undivided Family’ (HUF), which appears to be slightly different from the definition of a Hindu joint family. Coparcenary - The Mitakshara concept of coparcenary is based on the notion of son’s birth right in the joint family property. Not merely a son, but also a son’s son and Son’s son’s son acquire an interest by birth in the joint family property. Coparcenary is limited to three generations of lineal male descendants of the last holder of the property only. According to tenets (followers )of Hinduism, only descendants up to three generations can offer spiritual ministration to the ancestor. Only males can be coparceners because the females invariably leave the father’s house and assume domestic and spiritual duties in their husband’s house. The rule is that so long as one is not removed by more than four degrees from the last holder of the property, however removed one may be from the original holder one will be a coparcner. Last holder means the senior-most living lineal male ancestor.

KARTA

The joint family system under the Hindu law, is a patriarchal organization. The affairs of the joint family consisting of pardanashin ladies and infants could not be managed by all the members. There is always a need of a manager to look after the welfare of minor members and females in a Hindu joint family. The affairs of the Hindu joint family

in Hindu joint family, the Karta or manager, occupies pivotal position. So unique is his position. So unique is his position that there is no comparable office or institution in any other system of the world. His positing is Sui generis. Through he is a person with limited powers, yet within the ambit of his sphere, he possesses such vast powers as are possessed by none else. Who can be the Karta Senior most male member - ordinarily, the senor most male member is the Karta of the joint family. He does not owe his position to the agreement or consent of other coparceners. He is entitled to kartaship because he is in senior-most. So long as he is alive, may be aged, infirm, or ailing, he is entitled to kartaship. So long as the father is alive, he is the Karta. After his death, it passes to the senior-most male member, who may be the uncle, if coparcenary consists of uncle and nephews, or who may be the eldest brother, if coparcenary consists of brother. Junior male member - it is by understanding or agreement among coparceners that a union male member can a Karta. A junior member of Hindu Undivided Family (HUF) was realising rent, he filed a suit for eviction, the tenent cannot question his locus standi or capacity to file a suit. Coparceners may withdraw their consent at any time. More than one Karta - there can be more than one Karta. Female members as kata - At one time, the Nagpur High Court held the view that mother, though not a coparcener, can be the Karta in the absence of adult male members. The Supreme Court in Commr. Of Income Tax v. Seth Govind Ram, after reviewing the authorities, took the view that the mother or any other female could not be the Karta. This is an accordance with the texts of Hindu law. In Gangoji v. H.K. Chanappsa, the Karnataka High Court expressed the view that the mother as natural guardian of her minor sons can mange the joint family property and appointment of a guardian by the court would not be justified. ` POWERS AND RIGHTS OF KARTA (i) Powers of alienation - is limited (Discussed later). (ii) powers of management of family affairs/ property - is absolute, as no one (including the court) can question his management or mismanagement. He is not bound to save, economise or invest. He may discriminate between the members. While taking decisions with respect to family members, he need not to be equitable or even impartial. The karta has a right to decide or allocate specific portions of the house for family member's residence, which the latter have to obey. No individual coparcener can either retain the exclusive possession of 1 specific joint family property or joint family income, without his permission. Further, if a coparcener's presence in the family home proves to be a nuisance due to his disorderly behaviour or bad habits, the karta has the power to throw him out of the house. The only remedy available to such a coparcener is to ask for partition. (iii) Right to income and expenditure – All income of the family must be handed over to karta and it is for karta to allot furds to members. The decision of how to spend the joint family income and on whom to spend it is with the karta. (iv) Right to representation – in all matters e.g. legal, social, religious, revenue, etc. He acts on behalf of family and his acts are binding on the other members including minors. The karta may sue or be sued in respect of any transaction entered into by him on behalf of the family. If a decree is passed against him in such a suit, it would be binding on all the members of the family. 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 and 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 [Krishnamurthi v Chidambaram (1946) ILR Mad 670]. (v) Power of compromise – of all disputes relating to family properties or their management. But, he has no right to give up a substantial portion of a debt... out of charity, or sympathy with debtors. Thus, a compromise must be for the family's benefit; if his act is not bona fide, it can be challenged in a partition. Thus, the karta cannot enter into a compromise which is for his personal advantage [Bhola Prasad v Ramkumar (1932) ILR 11 Pat 399]. The karta has also power to refer disputes relating to JFP to 'arbitration,' provided he does so bona fide and for the family's benefit. The dispute could be between the members of the family or between family members and outsiders. vi) Power to contract/acknowledge debts - He has an implied authority to contract debts and pledge the credit of family for ordinary purposes of family business. Such debts are binding on the entire family. However, it is necessary for him to prove that loan was taken for family purposes or business... if the creditor seeks to make entire family liable for debts. The karta has the power to acknowledge a debt, but he cannot relinquish a debt due to the family. Also, he cannot pass a promissory note to revive a time-barred debt. Where a loan is raised by the karta (for a lawful purpose) by executing a promissory note in his name, such a note binds the other coparceners, but only to the extent of their shares, unless they were parties to this contract (Sirikant Lal v Sidheshwari Prasad AIR 1937 Pat 455). In certain cases, the karta has the full power to give a valid discharge for all debts due to the family. (vii) Power to enter into contracts - family business and such contracts are binding on the family business and contracts are binding on the family. Karta's Duties and Liabilities (Responsibilities) (i) Maintenance and marriage – of members of the family. If the karta improperly excludes any member from maintenance or does not properly maintain them, he can be sued for maintenance as well as arrears of maintenance. (ii) To pay taxes, etc. – on behalf of the family and he can be sued for all his dealings on behalf of the family. (iii) To recover debts due to the family. (iv) Partition – is a great check on karta’s absolute powers. Normally, the karta is not supposed to (v) Liability to account – keep accounts of how he has spent the family funds, but where a coparcener demands partition, he can require the karta to give him accounts. Sometimes, 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 (Girijanandini Devi v Brijendra Narain AIR 1967 SC 1124). The karta has to give 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 [Official Assignee v Rajabadar (1924) 40 Mad LJ 145]. The karta is bound to spend the money in a reasonable manner and for the purposes of the family. His duty, however, is to spend reasonably and not economically. Further, he can only be asked to render the accounts as they existed on the date of the demand; he cannot be forced to render past accounts, unless there are charges of fraud, misappropriation, etc. (Suryanarayana v Sugamanathi AIR 1961 A.P. 393). 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 JFP. RIGHTS OF COPARCENERS (INCIDENTS OF COPARCENERSHIP) The main rights of coparceners are:— (i) Right of joint ownership (or communal ownership) - The remarkable feature of it is that one is born with property. Communal ownership is expressed by saying that the interest is unpredictable and fluctuating or there is community of interest. Ownership of coparcenary property is vested in the whole body of coparceners. So long as partition doesn't take place, no individual coparcener can claim any specific share or specific property. The interest may be enlarged by deaths and diminished by deaths in family. (ii) Right of joint possession, enjoyment and use of joint family property - The possession of one coparcener is possession of all coparceners. And, no coparcener has a right of exclusive possession of any portion of joint family property. Thus, if he is ousted, he can't by legal action recover the possession of same property. There is no exclusive possession. However, in certain cases, a coparcener can enforce this right by a suit in case he is excluded from any part of JFP viz. when he is prevented from using a staircase or a door leading to the room in his occupation. [Anani v Gopal, 1895, 19 Bom 269]. Thus, a coparcener has a 'right against exclusion from JFP." (iii) Right by birth and right of survivorship - The moment a son is born in family, he acquires an interest in joint family property. Yet, when he dies he leaves behind nothing; and his interest devolves on the surviving coparceners (by survivorship). Thus, if a coparcener had died with some personal debts, these debts can't be enforced against his interest in joint family property after his death. In our society, where concept of individual property dominates, the rights of person who is born and the rights of person who survives, have to be expressed in terms of individual interests. (iv) Right of maintenance – property. marriage, etc., out of joint family (v) Right of alienation – of undivided interest in the coparcenary property. (vi) Right to challenge and restrain alienation - when improper and made without his consent. (vii) Right to restrain improper acts – right of restraining improper acts on the part of other coparceners, where such acts cause substantial injury to his rights as a member of the joint family. For example, if a coparcener erects a building on land belonging to the joint family, so as to materially alter the condition of the property, he may be restrained from doing so. Every coparcener has the (viii) Right to make self-acquisition - A coparcener has the right to acquire property of his own, and keep it as his self-acquired property. (ix) Right of partition/relinquishment of interest – A coparcener could get his interest 'individualized' by way of partition. This right is almost absolute; it is not subject to consent of the other coparceners. Also, a coparcener has the right to renounce his interest in the coparcenary property in the favour of other coparceners. ALIENATION OF HINDU JOINT FAMILY PROPERTY A Hindu has unrestricted power to alienate (i.e. transfer) his personal property, but in case of joint family property his competence to alienate is determined by his status in the joint family. Only the Karta/father and other coparceners possess the right to alienate the JFP. It may be noted that ordinarily, neither the Karta nor any other coparcener singly possesses full power of alienation over the JFP or over his interest in the JFP. This is so in view of the 'collective ownership’ of the joint family property. Alienation of the property may be made voluntarily— (i) for consideration e.g. by sale, mortgage, lease or exchange (ii) by gift, and (iii) by Will. Karta's Power of Alienation Although no individual coparcener, including the Karta, has any power to dispose of the JFP without the consent of others, it is recognized by the Dharmashastra that Joint family property can be alienated by the Karta/coparcener for certain purposes only. Ancient texts cautioned against the indiscriminate transfer of JFP to the detriment of its members, as property is always a security for the family in times of need. It is this 'need backed authorization' which empowers the Karta to alienate the property despite the dissent of other coparceners. An absolute denial of permission to the Karta to alienate the property even when the family needs money can be disadvantageous to the famu itself. Thus, the Karta can do it when the alienation was unavoidable, where, but for this transfer, the interests of the family would have been 99 adversely affected and to protect or benefit the family members or property itself. The Karta may alienate the JFP in the following three cases :— (a) Legal necessity. (b) Benefit of estate. (c) Acts of indispensable duty. Vijananeshwara recognized three exceptional cases in which alienation of the JFP could be made:— (i) Apatkale i.e. in the time of distress or emergency (to aver a danger). (ii) Kutumbarthe i.e. for the sake of the family (benefit of estate). (iii) Dharamarthe i.e. for pious purposes. The Karta's alienation in the aforesaid cases binds the interest of the minor coparceners also. Therefore, it is submitted that the correct basis of Karta's power seems to be the authority inherent in his position as karta, and not the implied consent of the coparceners. The Karta has a right to manage the joint family affairs and in course of its mànagement, he can also decide whether there exists a need of the family, justifying an alienation of the property, or not. However, for an alienation to be valid, it must be shown that the family did not possess alternative resources from which money could be raised to spend in these cases. When Karta exercises power of alienation in these exceptional cases, the consent of other coparceners will be implied.' This authorization is also called judicial' (when either the other coparceners do not consent to the alienation or are minors, but the alienation is for one of the three permitted purposes, as aforesaid). Though this authorization had its origin in the Dharmashastras, it has been recognized and upheld as valid all along by the judiciary. Also, Karta can alienate the property even if none of the above cases exists, but with the consent cf other coparceners. The latter is an 'express' authorization for alienation of JFP by the Karta. One of the 'undivided coparcener' alone cannot alienate the JFP 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 JFP at all. (a) Legal Necessity Broadly speaking, 'legal necessity' will include all those things which are deemed necessary for the members of the 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. The concept of legal necessity in Mitakshara refers to apat kale (famine, epidemic, floods, etc.). However, this is a very narrow conception of legal necessity. It is now established that 'necessity' is not to be understood in the sense of what is absolutely indispensable but what, according to the notions of a Hindu family, would be regarded as proper and reasonable (Mayne, Hindu Law and Usage, 11 th Ed.). The concept has moved beyond the apat kale and kutumb arthe and what has emerged is a combination of the two. In Rani v Shanta (AIR 1971 SC 1028), the Supreme Court has held that for 'legal necessity' actual compelling necessity is not the sole test but pressure upon the estate which in law may be regarded as ST serious and sufficient. If it is shown that the family's need was for that or article, and if property was alienated for the satisfaction of that need, it would be enough. The term is to be interpreted with due regard to the conditions of modern life. For an alienation to be valid under 'legal necessity' there must be existence of a need or lawful purpose, and, the family does not possess monetary or alternative resources from which the requirement can be met. Also, the course of action taken by Karta should be such as an JO ordinary prudent person would have taken with respect to his property. For example, a joint family owns considerable financial resources and SIL property; it has to pay government dues (a purpose). But, there is no pa 'necessity', as sufficient resources are available from which dues car be paid. A prudent person should pay the dues or even debts, from his savings rather than from the sale of JFP, and if that is not possible from a mortgage rather than a sale. A sale of JFP for inadequate or no consideration cannot be valid, despite legal necessity [Kasaram Jagamma v Jajala Lakshmamma (1998) 2 HLR 79 (A.P.)].³ Legal necessity may change its content with the passage of time. It must therefore depend on the facts and circumstances of each case. (i) General maintenance - Food, shelter, clothing, education, and, medical care for the members of family. (ii) Marriage of the members of family including daughters, towards whom there is a special duty. (iii) Marriage of daughter's daughter, when a daughter is not indigent is not a legal necessity (Nagpur High Court). But, Madras High Court takes a different view. In Venkata Subba v Ananda Rao (1934) 57 Mad. 772, held that it does not matter that the daughter is indigent or not. In Srinivas Rao v Sesacharlu (1962) Mad. 42, the court reasoned that the marriage of virgins is a pious and meritorious act conferring spiritual benefit on a Hindu. (iv) Defence of a member involved in a serious criminal charge (Murli v Bindeswari AIR 1933 Pat 708), provided he is not involved in murder of another coparcener. This is to defend the family honour. (v) Payments of Government revenue and debts binding family. Repayment of loan raised for family business. (vi) Performance of necessary funeral or family ceremonies. (vii) Payment of rent/arrears of rent; to discharge a mortgage of the family property. (viii) Sale of land to construct a pakka house (Tarni Prasaa Basudeo AIR 1981 Pat 33). Similarly, expenses for repairing a family house. (ix) Cost of necessary litigation in recovering or preserving e family estate (Kaloo Singh v Sunderbai AIR 1926 Nag 449). on the 3. ld., pp.165-166. (x) To avert a sale or avoid the destruction of whole or part of the property. (xi) For migrating to a new place for better living (Vanimisatti v Jayavarapu AIR 1955 A.P. 105). (xii) For the establishment of the adoption of a minor son (Govind Gurunath v Deekappa Mallappa AIR 1938 Bom 388). Case Law: Legal Necessity LEADING CASE: HUNOOMANPERSAUD PANDAY v MUSSUMAT BABOOEE MUNRAJ KOONWEREE [This case is disposal over any property. The power of the guardian/manager/ karta for an infant heir to charge an estate, which is not his own, is a limited and qualified power. guide to all those who had limited powers.] The burden of proof is on the alienee/transferee/lender to show that he acted bona fide and that there was necessity.] Facts – A certain mortgage executed by a widow in her character of the guardian of her infant son was challenged by the son on becoming major on the ground that it is inalienable by the act of the guardian, and so he is not liable for it. The said mortgage was made for the payment of arrears of revenue due to the government. Thus, it was for the benefit of the minor's estate, to prevent a sequestration and probable confiscation due to non-payment of government revenue. Observation and Decision – The Privy Council propounded the following five propositions:- (i) The power of the guardian/manager for an infant heir (or the power of karta) to charge an estate which is not his own, is under the Hindu law, a limited and qualified power. It can only be exercised rightly in the case of legal necessity or for the benefit of estate. (ii) In case a guardian/manager makes alienation as a prudent man, in order to benefit the estate,bona fide lender or alienee is not affected by the previous mismanagement of estate, provided the lender or alienee was not a party to mismanagement. In other words, he shouldn’t have acted mala fide. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it in the particular instance, is the thing to be regarded. (iii) The alienee is bound to make proper and bona fide enquiries as to the existence of necessity. (iv) If the alienee acts bona fide and makes proper enquiries, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of alienation. In other words, the alienee's position is not affected by the fact that if the minor’s property were properly and better managed, the danger or necessity would have not arisen. (v) The alienee is not bound to see as to the actual application of money for the legal necessity. He is not an administrator of fund. (vi) The guardian/manager is under an obligation to make an alienation as a prudent man, but the mere creation of a charge on the minor's property for securing properly a debt cannot be viewed as imprudent management because money to be secured on any 'estate’ is likely to be obtained on easier terms than a loan which rests on mere "personal security.' In other words, whenever alienation is challenged it is for the alienee to show ('burden of proof") that there was necessity. It is because, when one deals with a person whom one knows or is supposed to know to be a person of qualified powers, it is one's duty to satisfy oneself that such a person has power to make alienations. However, what he is required to prove is - either there was actually a need or that he made proper enquiries as to the existence of need and acted honestly. If he does that he has discharged his burden, it is immaterial if it turns out that actually there was no need for alienation or that he was deceived. In the present case, there was no suggestion that the debt of infant's father was contracted for illegal or immoral purposes. During her management, the widow (guardian/manager) with the object of saving the estate, of paying the debt of her predecessors, executed the mortgage bond. No greater benefit could well be conferred upon an estate than to save it from extinction by sequestration, the payment of arrears of revenue due to the government by mortgage bond was in the nature of salvage expenditure. Therefore, the alienation will be binding on the son. Moreover, a bond of this nature does not extinguish the title of the infant, it follows then, as a matter of justice and equity, that the mortgage bond is valid and of effect. LEADING CASE: DEV KISHAN v RAM KISHAN (AIR 2002 Raj. 370) [For an alienation to be valid under 'legal necessity' there must be existence of a lawful purpose. Thus, a debt incurred for the marriage of a minor child cannot be said to be for lawful purpose, as a child marriage is restrained by law and is opposed to public policy.] In this case, the validity of alienation of certain properties belonging to the joint family by the Karta of the family was in issue. The substantial question of law was whether the taking of the debt by a major member of the family for the marriage of a minor member of the family is a debt incurred for a legal necessity or is for illegal purpose? The Karta of the family executed a mortgage, a sub- mortgage and a sale of two houses (JFP) worth around Rs. 8,000-9,000 for a consideration of Rs. 400-900 for the alleged necessity of marriage of his three minor children who were in the age group of 8-12 years. The court held that where the marriage of the minor was performed in violation of the provisions of the Child Marriage1929, the debt having been incurred for that purpose, which was not lawful, cannot be regarded as a lawful debt and alienation on that ground cannot be regarded as a lawful alienation binding upon the minors. If the property was mortgaged or sold for the purpose of marrying minors, such transactions would be opposed to public policy, in view of the prohibition of child marriage under the Act of 1929. The Bombay High Court in Rambhau Ganjaram and the Orissa High Court in Maheshwar Das v Sakhi Dei (AIR 1978 Ori 84) case similarly opined. Also, the Calcutta High Court in Hansraj Bhuteria held that when the minor's estate is in the hands of a receiver appointed by the court and an application is made on behalf of the minor for the sanction of the expenditure for the marriage of his minor sister with a minor boy, the court should not sanction such expenditure for facilitating the child marriage within the meaning of the Act in British India. The application could not be granted as the court should not facilitate conduct which the legislature in British India had made penal even if such marriage was not punishable according to law of Bikaner. The court did not found the view taken by the Allahabad High Court in Parasram v Smt. Naraini Devi (AIR 1972 All 357) and that by the Punjab and Haryana High Court in Rulia v Jagdish (AIR 1973 P&H 335) to be correct. In the latter case, it was held that where the Karta effected sale of the ancestral land to make provision for the marriage of his son who was nearing the age when he could have been lawfully married, the sale was a valid sale for necessity. In the present case, the court also reasoned that the members of the family (brothers and mother of the minor children) were earning and there was no need to sell the family property to raise the money. Also, the property was grossly undervalued and if there was a need of money, the transfers should have been effected for an adequate consideration. LEADING CASE: ARVIND v ANNA (AIR 1980 SC 645) [Where ancestral property is sold for the purpose of discharging debts incurred by the father and the bulk of the proceeds of the sale is so accounted, the fact that a small part of the consideration is not accounted for will not invalidate the sale. Thus, for an alienation to be valid it has to be seen that the consideration received is adequate and that it has been properly utilized i.e. there was legal necessity or benefit to the estate.] In this case, the Karta executed a deed of mortgage in favour of father of the appellants for a sum of Rs. 1,600 in respect of a single item of land. Later, he executed another deed of mortgage in favour of the same mortgagee for a sum of Rs. 1,000 in respect of ten items of land including the land previously mortgaged. Both the mortgages were possessory mortgages but it appears from the evidence that the land was leased back to the mortgagor for a stipulated rent (the mortgagors started living in their own premises but were required to pay rent to the mortgagee). The Karta died leaving behind him an adult son and two minors. The adult son purporting to act as the manager of the joint family and the guardian of his minor brothers executed a sale deed (for a consideration of Rs. 3,000) in favour of father of the appellants in respect of four out of the ten items of land mortgaged. The other six items of mortgaged properties were released from the mortgage and came back to the family. The two minor brothers, on attaining majority, filed a suit for a declaration that the aforesaid sale deed was not for legal necessity and not for the benefit of the estate and, therefore, not binding on them. The trial court found that there was legal necessity for the sale to the extent of Rs. 2,600 only, that the consideration of Rs. 3,000 for the sale was inadequate as the lands were worth about Rs. 4,000, that there was no such compelling pressure on the estate as to justify the sale and therefore, the sale was not for the benefit of the family. The Supreme Court upholding the validity of sale held that the sale was for legal necessity as it had the effect of releasing six items of properties from the burden of the mortgage. The family was also relieved from the burden of paying rent to the mortgagee under the lease back. Further, the consideration was not grossly inadequate. Where ancestral property is sold for the purpose of discharging debts incurred by the father and the bulk of the proceeds of the sale is so accounted, the fact that a small part of the consideration is not accounted for will not invalidate the sale. In Gauri Shankar v Jiwan Singh (AIR 1927 PC 246), it was found that Rs. 500 out of the price of Rs. 4,000 was not fully accounted for and that there was legal necessity for the balance of Rs. 3,500. The Privy Council held that if the purchaser had acted honestly, if the existence of a family necessity for a sale was made out and the price was not unreasonably low, the purchaser was not bound to account for the application of the whole of the price. Comments – Where the property is sold with an intention that the sale proceeds are to be applied for a legal necessity, but the amount realized is in excess of the requirement and the excess amount is not substantial, the sale would be valid in its entirety (Ram Sunder Lal v Lachmi Narain AIR 1929 PC 143). However, where the excess amount is substantial, the sale would be termed as for 'partial necessity' and would be partially valid; it would bind the shares of the other coparceners to the extent of the necessity only (Benaras Bank v Hari Narain AIR 1932 PC 182). For example, where the property is sold for Rs. 43,500, but the necessity was for Rs. 38,000. It is necessary to establish in these cases that the alienee had acted in good faith and after making due inquiries.] (b) Benefit of Estate According to Mitakshara law, a karta can alienate the joint family proper for the sake of the family i.e. kutumbarthe. Broadly speaking, 'bene of estate’ means anything that is done which will benefit the JFP. TI term contemplates “defensive transaction' as well as 'prudent transaction The following is the case-law on the point. (i) In Palaniappa v Deivasikamony (1917) PC 68, the Privy Council said that it is impossible to define the word 'benefit of estate' for all cases. But some instances are: preservation of estate from extinction, the defence against hostile litigation affecting it, protection of it from injury, and such like things. It may be noted that in all these instances, there was threat to estate. Thus, only that will be 'benefit of estate’ which is of a defensive character. (ii) In view of the above decision, anything done merely to improve the property will not amount to benefit of estate. However, this view seems to be no longer valid. The other view is that anything done which is of positive benefit or advantageous to the estate would amount to benefit of estate. In Balmukund V Kamla Wati (AIR 1964 SC 1385), the Supreme Court observed that for a transaction to be regarded as the benefit of the estate it need not be of defensive character. (iii) The test is of a 'prudent owner’ (caution, foresight and absence of hasty, reckless and arbitrary conduct). Anything which a prudent person can do in respect of his own property, the karta can do in respect of JFP. The karta, as prudent manager, can do all those things which are in the furtherance of the family's advancement or to prevent probable losses, provided his acts are not purely of a speculative or visionary character (Nirmal v Satnam AIR 1960 Raj 313). However, the degree of prudence required from the karta is higher than the level that is expected of a person when he deals with his exclusive property (Balmukund v Kamla Wati). (iv) This implies that the karta cannot alienate property merely for the purpose of enhancing its value or convert property into money just because the property does not yield any income, without replacing it with some more advantageous property. But if the karta's power is to be continued to purely defensive acts, there would be no progress and the family would stagnate (Ram Nath v Ghurantial AIR 1935 All 221). In other words, sale of property to convert it into money simpliciter or to spend en it into speculative transactions (e.g. stocks/shares/chit funds) would not amount to benefit of estate, even if the consideration fetched after the sale of property is in excess of the market value. If the intention was to use the money raised for the purchase of more productive land, the sale would be for benefit of estate. (v) The following transactions were held to be for the °benefit of estate': (a) Karta sold a property which was 18-19 miles away (thus inconvenient to manage it) and purchased a more accessible property [Jagatnarain v Mathura Das, ILR (1928) 50 All [696 (b) Sale of property to enable the family to migrate to another place and to purchase more productive lands there (Desari v Desari AIR 1973 A.P. 215). (c) Karta, running a hotel business, mortgaged the family property with a view to raising funds for renovation of hotel (Gallamudi v Indian Overseas Bank AIR 1978 A.P. 37). Thus, investment in family business is a benefit the estate. (d) Land yielding no profit sold to purchase land yielding profit (Hari Singh v Umrao Singh AIR 1979 All 65). (e) Land worth Rs. 15,000 offered a price of Rs. 1.5 lakh (A.T. Vasudevan' case AIR 1949 Mad 260). (f) A mortgage of property so as to use the loan for purchase of a share in the village property, to consolidate the existing share (Beni Madho v Chander Prasad AIR 1925 Pat 189). (g) Mortgage of the property for money at a less rate of interest for the purpose of repaying a debt at a higher rate. ( h) Sale of a portion of property to make the family landlords instead of tenants (Baijnath Prasad v Bindi Prasad AIR 1939 Pat 97) or sale to reclaim a portion of property to prevent it from leased to others. Similarly, a gift of a small portion of land to defeat the pre-emption claim of the family property [Mohib Ali Khan v Baldeo Prasad (1939) ILR A|l 305]. (i) Application of sale proceeds for making additions and improvements in the family home (Ramrichpal v Bikaner Stores AIR 1966 Raj 187). (J) Within reasonable limits, transfer of a property to a company with a view to preserve it. (k) A sale of a house in a dilapidated condition, in respect of which a notice has been issued by the municipality to pull it down. (vi) The following transactions were held not to be for the benefit of estate: (a) Entire homestead land was sold for the purpose of buying another piece of land for construction of a residential house. Held that the sale could not be considered to be an act of prudent management for benefit of estate or legal necessity, as there is no evidence that the house sold was dilapidated or that the consideration was gainful (Surendranath v Sudhir Kumar AIR 1982 Ori 30). (b) Borrowing money on the mortgage of joint family property for purchase of a house [Selleppa v Suppan, ILR (1937) Mad 906]. (c) Transactions merely for the purpose of purchasing another property, or for increasing the income of the family, or that the property was fetching higher price than the market rate. (d) An alienation by father of the entire family property with a view to stay with his father-in-law since his wife was not willing to come and stay with him. (e) A permanent lease of land for a fixed rent (Palaniappa v Deivasikamony). (f) Alienation for acquisition of mortgage rights in the property of the brother who has separated from the family [Hans Raj v Khushal Singh (1933) ILR 14 Lah 162]. (vii) In each case the court must be satisfied from material before it that it was in fact such as conferred or was reasonably expected to confer benefit on the family 'at the time it was entered into.’ What was once for the benefit of the estate may not be the same in a changed set of circumstances and in fact may be just the opposite. In Sital Prasad Singh v Ajablal Mander (AIR 1939 Pat 370), it was held: In exceptional circumstances, the court will uphold the alienation of a part of the joint family property by a Karta for the acquisition of new property as, for example, where all the adult members of the joint family with the knowledge available to them and possessing all the necessary information about the means and requirements of the family are convinced that the proposed purchase of the new property is for the benefit of the estate. Conclusions – Whether transaction is for the benefit of estate or not is to be decided keeping in mind the facts and circumstances existing at the time of transactions and not by looking at the ultimate result of one transaction many years later. Factors like, status and position of family, nature of property (movable/immovable), difficulty in managing it, nature and quantum of yield from transaction, etc., are important in determining whether transaction should be upheld as beneficial to the family. LEADING CASE: BALMUKAND v KAMLAWATI (AIR 1964 SC 1385) [When the alienation of JFP by the Karta was not for any legal necessity or benefit to estate, the said alienation is voidable at the instance of coparceners.] Facts - In this case, the plaintiff desired to acquire a particular share of land held by the joint family of karta and his brothers. A contract was entered into by the karta regarding the said land, but karta failed to execute sale deed in his favour. The brothers of karta defended that the transaction was not binding on them because the sale was not for the benefit of family nor there was any necessity. The plaintiff contended that the sale was beneficial to family, as their fractional share in land which they sold is not of practical benefit to them, and by converting it into money (sold at more than market value) the family stood to gain. The manager of a joint Hindu family has power to sell...not only for a defensive purpose (to avert an imminent danger) but also for where circumstances are such that a 'prudent owner' of property would alienate it for a consideration which he regards to be adequate. Observations and Decision- The karta, as 'prudent manager', can do all those things which are in furtherance of family's advancement or to prevent probable losses, provided his acts are not purely of a speculative or visionary character. This implies that karta can't convert family property into money just because property doesn't yield any income, without replacing it with some more advantageous property. But, if the karta’s power is to be continued to purely defensive acts, there would be no progress. In A.T. Vasudevan's case, the court held that the karta can alienate...if it is clearly beneficial, even though there is no legal necessity. If a land not yielding anything is sold, then it is...benefit. Thus, in each case, the court must be satisfied that “it was, in fact, such as conferred or was reasonably expected to confer benefit on the family at the time it was entered into." In the present case, there is nothing to suggest that the karta found the property difficult to manage or that the family was incurring losses by it, nor there is anything to suggest that idea was to invest sale proceeds in some profitable manner. The consolidation of property by the plaintiff doesn't make a benefit to estate. Also, as brothers of the karta were adults, their consent as coparceners is necessary. In view of the opposition of alienation by coparceners, and the fact that the alienation was not for any legal necessity or benefit to estate, the said alienation is voidable at the instance of coparceners.] (c) Indispensable/ Religious Duties The term "indispensable duties" implies performance of those acts which are 'religious, pious or charitable.' The indispensable duties include religious ceremonies e.g. shradha, upanayanama, grihapravesam, rithusanti and gauna ceremonies, and, performance of other necessary samskars. Performance of marriage is a samskara and therefore performance of marriage of members of joint family, particularly of daughters, is an indispensable duty (also covered under 'legal necessity'). The allotment of a share to daughters in the family is regarded as obligatory by Vijnaneswara. He says: "The allotment of such a share appears to be indispensably requisite, since the refusal of it is pronounced to be a sin." In Mitakshara [Chapter 1, Section 1, v. 28], it is stated: “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." Pious purposes include a 'charitable' purpose besides a 'religious' purpose. “In the Hindu system there is no line of demarcation between religion and charity. On the other hand charity is regarded as part of religion" (Mukherjea's Hindu Law of Religious and Charitable Trust, 2nd Edn., p. 12). The 'totality' of the property can be alienated for legal necessity or for the benefit of estate or for the performance of indispensable religious ceremonies (e.g. marriage, death), but only a ´small portion' of the property can be alienated for pious purposes. In Gangi v Tammi (1927) 54 IA 136, the Privy Council said that a dedication of a portion of family property for the purpose of religious charity may be validly made by the karta, if the property allotted is small as compared with the total means of the family. Such alienation cannot be made by a Will. Father's (Special) Power of Alienation Father is usually the Karta of the family (being the seniormost male member), and, possess the same powers of alienating the JFP. However, he also possesses some 'special powers' in relation to the JFP. In other words, where the Karta happens to be the father, he has wider powers of alienation:— (i) Gift of love and affection of a reasonable property to his daughter (discussed later). (ii) Sale or mortgage of the property for payment of his antecedent debts (personal) not contracted for illegal or immoral purposes (Chet Ram v Ram Singh AIR 1922 PC 247). The debt may be incurred in connection with a trade started by him or for constructing a house. It may be noted that where the Karta is 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 benefit of the family [Kolasani Sivakumari v Kolasani Sambasiva Rao, 2000 AIHC 2512 (A.P.)]. It may also be noted that though a son gets a right by birth in the JFP of his father equal to his, yet the father has more powers e.g. in the matter of gifts through love and affection, alienations for the discharge of his antecedent debts, and, effecting a partition amongst his sons. Alienation by Father of JFP in favour of Daughter LEADING CASE: SUNDER YADAV v ASHA KUMARI (AIR 2009 Pat 131) [When the father happens to be the Karta of the family, he has some special powers to dispose of the JFP unlike an ordinary Karta of the family. Thus, he can sell the JFP without the consent of his sons in favour of his daughter for the satisfaction of the debts.] In this case, the issue was whether a father as a Karta can sell the JFP without the consent of his sons in favour of his daughter for the satisfaction of the debts shę contracted while looking after him in wake of the neglect of the sons. The father (Karta) had two sons and two daughters. He purchased some lands and executed a registered sale deed in favour of his wife's brother and another property in favour of his daughter. The sons who in pursuance of these sales were dispossessed of the property, challenged the validity of both the sales pleading that the property was JFP; they were coparceners and without their consent such sales would be void. The High Court observed and held: When the Karta happens to be father as well, he has special powers of alienating coparcenary property which no other coparcener has. In the exercise of these powers he may make a gift of the ancestral property or may sell or mortgage ancestral property whether movable or immovable including the interest of his son, grandson or great grandson therein for the payment of his own antecedent debt (not incurred for immoral or illegal purposes). Thus, the powers of an ordinary Karta and Karta who happens to be the father are slightly different. In the present case the court noted that it was in evidence that when the Karta became old, the sons neglected him; didnot maintain him and hence he was forced to live with his daughter and for meeting the costs of maintenance and his other necessary requirements including his debts, Karta had to execute the sale deeds in favour of the wife's brother and his daughter. The court said: The texts of Hindu law is very clear in that regard and provides an obligation upon the sons to maintain the father, specially when the father becomes old and needy, but here it has been found that the sons had neglected their father and failed to discharge their pious obligations due to which the father was forced to live with the daughter, but to pay the debt of his daughter which she incurred in his maintenance he had to sell the suit property as any self respecting person would do. Thus in the circumstances being the Karta, the father was perfectly justified and had full authority to sell the JFP to the wife's brother and to his daughter by sale deeds which were also binding upon sons and the purchasers validly acquired full rights, title, interests in the property. The court also noted: In the present case, the father had not executed a gift but the alienation of the property by way of sale. Thought the consideration for the sale was inadequate, but it was akin to compensation i.e. in lieu of the amount that the daughter had spent on her father. Inadequacy of consideration would not invalidate the sale as it was incurred for a legal necessity (payment of one's debts). Comments - The present case shows the courage on the part of the father to break the stereotype and compensate the daughter for looking after him in old age and it also shows a judicial sensitivity to the whole issue in upholding the validity of the sale in favour of the daughter. A message that clearly tells the sons that benefits come with duties and failure to discharge the duties may result in the forfeiture of the privilege.] COPARCENER’S POWERS AND RIGHTS (ALIENATION OF JFP) Coparcener's Power of Alienation 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 ('Alienation by all adult coparceners as one body'). If the alienation is for legal necessity or for the benefit of the estate, it will bind the non-coparcener members also. If the alienation is otherwise, it will operate subject to their rights in that property (viz. right of maintenance). The Mitakshara didn’t permit 'individual alienations' by coparceners. This is in view of the nature of the JFP, also known as coparcenary property (a coparcener may be said to own interest in the whole property in unison with all the other coparceners). According to Mayne, such alienation without partition (i.e. undivided interest) would have the effect of introducing strangers into the coparcenary, without their consent and defeating their right of survivorship. However, where an 'undivided coparcener' incurred a financial liability by taking a loan or otherwise, and had no other property for the satisfaction of this loan or pecuniary liability, he could plead his inability to pay off the debt 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 (or inequity) was broken by the courts by directing that the money decree be enforced against the undivided interest of the coparcener [Deen Dayal v Jugdeep Narain (1877) 4 IA 247; Dropadi Devi v Jagdish AIR 1989 Raj 110]. 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.' The court reasoned that such alienation (whether voluntary or compulsory) though inconsistent with the strict theory of a joint Hindu family, is 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 ('Equitable rights of alienee for consideration’). Further, 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 (the courts) to allow so. The law of coparcener's power of alienation is, thus, the product of judicial legislation:—- (1) Undivided interest of a coparcener can be attached and sold in execution of a money decree against him (payment of debts) – Involuntary alienation. However, it can't be executed against the interest of coparcener after his death. But, if interest has been attached during his life-time/or before judgment and coparcener dies during pendency of suit, his interest can be sold. Thus, if the coparcener dies before the filing of the suit by the creditor or before his undivided interest could be attached by the court, such undivided interest then, could not be attached by the court. As 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. (2) A coparcener is entitled to alienate his undivided share either in the whole of property or in a certain specific item of Voluntary alienation. According to Bombay, Madras, M.P. and J&K High Courts, a coparcener has power to sell, mortgage or alienate for value (consideration) his undivided interest without the consent of other coparceners; but in rest of Mitakshara jurisdiction, consent is required. In the former, non-alienating coparcener's only right is that property should bear proportionate share of common burden of family. property In Ponnamma v Aspinwal (AIR 1988 Karnt 99), it was held that 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. According to Mitakshara law prevailing in Bengal, Bihar, Orissa, U.P., Punjab and Delhi, a coparcener cannot sell his undivided interest (even for consideration) without the consent of the other coparceners, Aven where it is in favour of another coparcener. Alienations without Consideration Though the concept of voluntary alienation has been recognized in some States, the gifts and Wills were not recognized due to there being no equity in the favour of alienee. After 1956, the individual coparcener can dispose of his undivided interest by Will vide Sec. 30 of the Hindu Succession Act. But as regards gifts, the law, even after 1956, is the same and no coparcener can make a valid gift of his undivided interest. Such a transaction is void. However, he can make a gift with the consent of other coparceners provided it is in favour of all other coparceners. (a) Gift A 'Gift' is the transfer of certain existing movable or immovable property made voluntarily and without consideration. In case of 'separate/self- acquired' property, a Hindu has competence to dispose it by way of gift; the only limitation is that if any person (e.g. female members, minors) has a right to get maintenance out of the property to be gifted, that right cannot be prejudiced. In case of 'joint family property', if all the coparceners are adult they can make a gift of the JFP by unanimous consent. Whether an individual coparcener can gift a JFP depends upon his status i.e. is he an ordinary coparcener or the Karta or the father. An 'ordinary coparcener' cannot make a valid gift of undivided share unless it is with the consent of all the coparceners (T. Venkatasubramma v Rattamma AIR 1987 SC 1775) or is in favour of all the coparceners to the extent of his total share (Ram Saran v Prithipal AIR 1950 All 224). Thus, a gift by a coparcener in favour of another coparcener, to the exclusion of others is void and can be recovered back by the coparcener who had earlier executed it. This is the position even after passing of the Hindu Succession Act, 1956. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property. There is no limitation on the quantum of the property under a will that can be bequeathed. Further, it can be given to any coparcener or 1o all the coparceners, to his sons or to a non-coparcener, to a family Pass member or to a total stranger, to a living person or even dedicated to a religious/charitable purpose. However, the entire joint family properties cannot be disposed of by Will. A Will executed by the father, of the ole There is no limitation on the quantum of the property under a Will entire JFP (including the share of the sons), even post 1956, will be invalid (V.K. Thmmaiah v V.K. Parvathi AIR 2003 Karnt 245). Where a coparcener bequeaths his undivided interest, on his death, ing legatee (even a stranger) 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 testator's (coparcener's) death. 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/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 a Will.6 Sole Surviving Coparcener's Right of Alienation— (1) He has full rights of alienation (no need of legal necessity or benefit to estate to be shown) (as property assumes the character of 'separate property' in his hands) of JFP but if at the time of alienation, another coparcener is in womb, on his birth, he can challenge such alienation. Otherwise, a subsequently born son cannot challenge such alienation. (2) His power to alienate is not affected by a subsequent adoption of son by a coparcener's widow. (3) He can't alienate the interest of any female vested- in her by virtue of Sec. 6, Hindu Succession Act. 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 right against this property. (4) If he makes a 'Will' of the property, and before his death (i.e. before the Will to become operative), another coparcener comes into existence (subsequently born son or an adopted son), the Will, will become invalid as he is no longer a sole surviving coparcener. It is only when at the time of his death he has the same status (i.e. of a sole surviving coparcener), the Will, will be valid. In this case, it also does not matter that there was a coparcener in the womb of his mother; the Will, will be valid. (5) A 'gift' of the property by a sole surviving coparcener in favour of persons who looked after him is valid (Ashwani Kumar v Rajinder Kumar AIR 2010 H.P. 44). Coparcener's Right to Challenge Alienation by Karta? It is settled law that an improper alienation (by Karta/coparcener) can be challenged by all or any one of the coparceners existing at the time of the alienation. But an alienating coparcener cannot challenge his own alienation. An adult copareener who consented to the alienation cannot later challenge its validity. An alienation effected by the Karta cannot be challenged by any other member of the family who is not a coparcener (e.g. widow of a coparcener). It may be taken to be a well-settled law that alienation by the Karta without legal necessity or benefit of estate or in discharge of indispensable duty is not void but merely voidable at the instance of any coparcener (Raghubanchmani v Ambika Prasad AIR 1971 SC 776). A voidable alienation is valid so long as it is not challenged. Where the Karta alienated the joint family property without the consent of other coparceners and without any legal necessity or for the benefit of estate it was held that such alienation was invalid even for the share of the Karta [Sital Singh v Jamna Bai (2004) 138 P.L.R. 565]. That would be the case when the court decides that the transfer was without judicial or legal authorization and thus void. A coparcener cannot obtain an injunction to prevent the Karta from alienating the Karta from alienating the JFP, since he has the remedy of challenging alienation. (Sunil Kumar v Ram Prakash AIR 1988 SC 576) (discussed below). However, in case of waste or ouster, an injunction can be granted [Sant Singh v Mata Ram (1989) 1 HLR 214 (SC)]. Where the coparceners do not consent to the alienation, they have two remedies in the alternative. The first remedy is available when the transfer has not been effected by the Karta; the non-consenting coparcener can demand his share in the JFP (i.e. partition) and cease to be a member of the family. The Karta, then, cannot alienate his share. 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. The second remedy is available when the transfer has been effected. The coparceners can challenge the validity of the transfer in the court, on the ground that none of the categories for which the Karta is permitted in law to alienate the property, existed. 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. A coparcener who is in the womb of his mother ´at the time of alienation' can get the alienation set aside after his birth. Under Hindu law a son conceived is, in many respects, equal to a son born. An after-borm coparcener cannot challenge the alienation. But if an alienation is made by a father who has sons and before all the sons die another son is born to him, then such son can challenge the alienation; it is necessary that at the time of his conception there must have existed an unexpired right among some coparceners to challenge the alienation. It is settled law that a son adopted subsequent to alienation has no right to challenge alienation. Challenge to Alienation by Undivided Coparcener 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, or was conceived and subsequently born alive, can set it aside with the court's help. In Balgobind Das v Narain Lal (1893) 20 I.A. 116, it was held that in Bengal, Bihar and U.P., on the suit of a coparcener, the alienation will be set aside wholly as under these schools a coparcener has no right to alienate his undivided interest in the JFP. The alienating. right to alienate his undivided interest in the JFP. The non-alienating coparceners are also entitled to a declaration that alienation is void in its totality. Right to Challenge Alienation does Not extend to Rish, Obstruct Alienation LEADING CASE: SUNIL KUMAR v RAM PRAKASH [(1988) 2 SCC 77] [A coparcener cannot move the court to grant relief by injunction (temporary or permanent) restraining the Karta from alienating the coparcenary property for a permitted purpose as ascertained by the Karta. An injunction cannot be granted when a party could obtain an efficacious relief by any other usual mode of proceeding (except in case of breach of trust). The coparcener has adequate remedy to impeach the alienation made by the Karta.] In this case, the issue was whether a suit for permanent injunction by a coparcener against the father for restraining him from alienating the house property belonging to the joint Hindu family for legal necessity was maintainable. The lower court observed: At the outset it is to be noticed that in a suit for permanent injunction under Section 38 of the Specific Relief Act by a coparcener against the father or Manager of the joint Hindu family property, an injunction cannot he granted as the coparcener has got equally efficacious remedy to get the sale set aside and recover possession of the property. Thus, a suit for permanent injunction by a coparcener against the father for restraining him from alienating the house property belonging to the joint Hindu family for legal necessity was not maintainable because the coparcener had got the remedy of the challenging the sale and getting it set aside in a suit subsequent to the completion of the sale. It has, however, been submitted on behalf of the appellant that the High Court should have held that in appropriate cases where there are acts of waste, a suit for permanent injunction may be brought against the Karta of the joint Hindu family to restrain him from alienating the property of the family. Although the power of disposition of joint family property es been conceded to the Manager of joint Hindu family, the law raises no presumption as to the validity of his transactions. lis acts could be questioned in the court of law. The other members of the family have a right to have the transaction declared void, if not justified. When alienation is challenged as being unjustified or illegal it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity. If the alienation is found to be unjustified, then it would be declared void. Such alienations would be void except to the extent of Manager's share in Madras, Bombay and Central Provinces. The purchaser could get only the Manager's share. But in other provinces, the purchaser would not get even that much. The entire alienation would be void [Mayne's Hindu Law, 11th Edn., para 396] In the light of these principles, it was contended: First, that a coparcener has as much interest as that of Karta in the coparcenary property. Second, the right of coparcener in respect of his share in the ancestral property would remain unimpaired, if the alienation is not for legal necessity or for the benefit of the estate. When these two rights, are preserved to a coparcener, why should he not prevent the Karta from dissipating the ancestral property by moving the court? Why should he vainly wait till the purchaser gets title to the property? The Supreme Court observed: The significance and social necessity behind 'collective ownership' of JFP, and, the unique and vital position of the Karta/manager of the HJF cannot be overlooked. A Karta may consult the family members and if necessary take their consent, but he is not answerable to each of them. The Karta/manager has not only the power to manage but also the power to alienate JFP so as to bind the interests of both adult and minor coparceners in the property, provided that alienation is made for legal necessity or for the benefit of the estate or for meeting an antecedent debt. Thus, managing the JFP is one of the inherent powers of the Karta. It is true that a coparcener takes by birth an interest in the ancestral property, but he is not entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the Karta. It would be for the Karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger to be averted. And it would be for him to examine as to how best the joint family estate could be beneficially put into use to sub-serve the interests of the family A coparcener cannot interfere in these acts of management. Apart from that, a father-Karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent deht which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in the alienated property. No doubt the law confers a right on the coparcener to challenge the alienation made by Karta, but that right is not inclusive of the right to obstruct alienation. For the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right| to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled to it. Therefore, he cannot move the court to grant relief by injunction restraining the Karta from alienating the coparcenary property. An injunction cannot be granted when a party could obtain an efficacious relief by any other usual mode of proceeding (except in case of breach of trust). The coparcener has adequate remedy to impeach the alienation made by the Karta. The decision of the Punjab and Haryana High Court in Jujhar Singh v Giani Talok Singh (AIR 1987 P&H 34) has correctly laid down the law. There it was observed at p. 348: "If it is held that such a suit would be competent the result would be that each time the manager or the Karta wants to sell property, the coparcener would file a suit which may take number of years for its disposal. The legal necessity or the purpose of the proposed sale which may be of pressing and urgent nature, would in most cases be frustrated by the time the suit is disposed of. Legally speaking, unless the alienation in fact is completed there would be no cause of action for any coparcener to maintain a suit because the right is only to challenge the alienation made and there is no right recognized in law to maintain a suit to prevent the proposed sale. The principle that an injunction can be granted for preventing waste by a manager or Karta obviously would not be applicable to such a suit because the proposed alienation for an alleged need or the benefit of the estate cannot be said to be an act of waste by any stretch of reasoning. The Apex Court, however, made it clear that in case of waste or ouster, an injunction may be granted against the manager of HJF at the instance of the coparcener. But nonetheless a blanket injunction restraining permanently from alienating the JFP even in the case of legal necessity cannot be granted.] ALIENEE'S DUTIES RIGHTS AND REMEDIES Burden of Proof (Duties of Alienee) The 'burden of proof’ in the case of alienation of JFP is on the alienee. An alienee is the person in whose favour the transfer has been effected i.e. the transferee; he is the beneficiary i.e. the person who claims the benefit of the alienation. Thus, alienee has to prove that the transaction entered into by the Karta is for a legal necessity or for the benefit of the estate. The burden does not lie on the alienor/transferor (Karta). This burden also does not lie on the coparcener who challenges the alienation. The logic behind is 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 bona fide inquiries about the transfer being permissible in law. If the alienation is in future challenged In a court of law and being declared invalid by the court, it is the alienee who has to suffer. Thus, he has a right to come forward to the burden of proof. Otherwise the Karta and other coparceners may discharge collude against him. A bona fide alienee/creditor should not suffer who he has acted honestly and with due caution, but is himself deceived. However, there are factual difficulties in the discharge of burden of proof by an alienee, for example, the alienee cannot assess independently the needs of the family (a private matter of the family) Further, he has no control over the proper application of money by the Karta. The courts have, thus, relaxed the rules of burden of proof making them practical, workable and rationale:— ⁃ The nature of inquiries by the alienee should be such as would be made by a 'reasonable prudent person.’ He has to not only prove the existence of a purpose, but he also has to show that the family had a legal necessity, and for that he has to show that the family did not possess enough alternative financial resources from which the required money could be raised and that there was sufficient pressure on the family to sell or mortgage the property. ⁃ The transaction should be finalized by the alienee only when he satisfies himself with respect to the competency of the Karta to effect the alienation. ⁃ The alienee must show that he had acted honestly and his actions were not mala fide i.e. he was not a party to the mismanagement of such mismanagement, the alienation in his favour is not valid. However, the alienee is not concerned whether the necessity arose from an earlier mismanagement of the family property. ⁃ The alienee has to prove that he had paid a fair price for the alienation. A 'need based' transfer can never be for inadequate consideration. At the same time, he has to prove that the terms of alienation and the rate of interest on the money borrowed were not unreasonable and onerous (i.e. very high). ⁃ 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 bećame a party to the transfer after making due inquiries. In Prem Singh v Dharam Singh (2005) 139 P.L.R. 334, the vendor (alienor) required money for the treatment of a medical disorder. The vendee (alienee) proved that the vendor needed money for legal necessity. It was held that the vendee had discharged his onus and just because the vendor was shown to having money in the bank account is not enough to disprove the fact of legal necessity. ⁃ The alienee is also not bound to go into the question as to what mode of alienation, sale or mortgage, etc, would be better for the family. The Karta has to decide it. ⁃ Recital of necessity in the transfer deeds executed by the Karta are not conclusive proofs of the existence of a necessity justifying the transfer, but are admissible in evidence, and if supplemented with other proof, can be of importance with the Recitals passage of time. Alienee's Rights and Remedies (I) Authorised Alienations Undivided interest of a coparcener can be attached and sold in execution of a money decree against him (in cases of involuntary alienations e.g. payment of debts) in all regions governed by the Mitakshara law. That would be the case when the alıenation by Karta/coparcener is valid i.e. for legal necessity, etc. Thus, in case of an authorized sale, the alienee is entitled to the possession of the property and to the ejectment of the members of the family. (II) Alienation of Undivided Interest by Coparcener In areas where a coparcener is permitted to voluntarily alienate his undivided share, a mortgage effected by a coparcener will be valid to the extent of his share (even where the coparcener alienates more than what would have been his share in the coparcenary property). The alienee cannot have any better right than what the coparcener had in the property. When alienation is valid, alienee is entitled to the interest of the coparcener as it existed 'at the time of alienation' (not subject to fluctuation either by births or deaths in family; thus, mortgagee of a Hindu father is not entitled to proceed against the share of a son subsequently born in the family). In other words, the share to which an alienee is entitled on a partition is the share to which the alienor was entitled at the date of the alienation, and not at the date when the aliene seeks to reduce his interest into possession. The right which the alienee acquires is to stand in the shoes of his vendor and to work out his rights by a suit for partition (this right is not lost by the death of the coparcener). In such suit ne can't claim the specific properties that were alienated to him, to be allotted to his share. But he has an equitable claim and ordinarily the court may assign that very property, if it could be done without injustice to other coparceners (otherwise, 'substituted security'). It may be noted that 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 alienee's remedy will be merely to sue for a general partition and he cannot claim that very property. The alienee will take the property subject to all charges, encumbrances and liabilities affecting the JFP or the interest of the coparcener. Also, he has a right to impeach improper previous alienations. But where the alienation is itself in discharge of binding debts, the alienee cannot, in a suit for partition, be saddled with other family debts. Neither the alienation of entire interest by coparcener, nor adjudication of coparcener as insolvent would have the effect of disrupting the joint status of family. (III) Right of Possession of Alienated Property There is a difference of opinion on the question whether the alienee has a 'right of possession' of the specific properties alienated to him (by the undivided coparcener) before he seeks partition. It may be note




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