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Unauthorized Alienation And Its Consequences In The Coparcenary Property: A Critical Study

Property is one of the crucial parts of every family and its transfer is always been a perplexing issue. The transfer of property and its provision are given in the act popularly known Transfer of Property Act[i] but how there can be unauthorized alienation of property can be critically evaluated based on Hindu Law.

Alienation of property means the transfer of property utilizing any way from one person to another, and therefore unauthorized alienation can be defined as a transfer of property from one person to another without any lawful justification which eventually leads to the invalidation of such transfer.

This article will critically evaluate that if a property has been alienated without any authority then what are the rights available with the coparcener[ii] of the property? We are well acquainted with the fact that the owner of any property majorly does have 3 rights i.e. Right to enjoy, the Right to be in possession, and the Right to dispose. Therefore we can say that the right to alienate the property lies with the owner of the property only.

Alienation of property in context with the Indian Families:

In Indian families mostly there are joint families and property cannot be alienated without the consent[iii] of the other members. In joint families, each member of families does have a substantial amount of contribution towards the efficient working of the family and therefore alienation of the property without their consent is not a right thing and hence not legally valid. Such kind of alienation can often be regarded as an invalid alienation.

In the joint family the Karta [iv] can be regarded as the head of the family, he is the manager of the Hindu family. Therefore, their rights are a bit different from the other members of the family. But, that does not means coparcener do not have any rights, well they also have some kind of rights within the family.

They have a communal interest and possession, they have a right to claim joint possession, and they can restrain if there is improper use of the property along with this there are many other rights with the coparcener with makes them a vital part in the Hindu family. But, Karta remains the head and possesses some special place in the family and enjoys different rights along with various responsibilities.

In the case of Kandasami vs. Somakanda[v] it was held by the court of law that the Karta can alienate the property in the Hindu Undivided Family. In such kind of alienation there must be the consent of all the coparcener of the family. After obtaining the consent of the coparcener the property can be alienated, the only thing to take into consideration is that the coparcener must be the major according to the law they are subjected.

Can a Female be a Karta of a Hindu Family?

As we are well aware of the fact that Karta is the head of the family and the eldest coparcener. Karta is a caretaker of the family and does have many responsibilities to look after the welfare of the family. Normally the eldest male member of the family becomes the Karta. But, the question arises when there is no eldest male in the family, or no male is present what will happen in that circumstances? Can a female member of a Hindu Joint Family become a Karta?

Before the Hindu Succession (Amendment) Act 2005, it was held by many courts that only a coparcener can become a Karta of a Hindu Joint Family, as before the amendment act of 2005 females were not recognized as the Karta. But after Hindu Succession (Amendment) Act 2005, it was held that a Hindu daughter is required to be treated as a coparcener. The requirement to become a Karta is the coparcener therefore females can become Karta of Hindu Families.

In the case of Commissioner of Income Tax v. Seth Govindram Sugar[vi] Mill Ltd. it was held by the court of law that only a coparcener can become Karta of a Hindu Family. This judgment was given back then before the Hindu Succession (Amendment) Act 2005 and hence did not recognize females as the Karta of the family.

However, in the case of Sujata Sharma v. Mannu Gupta[vii] it was held by the Delhi High Court that after the amendment of 2005 Hindu Women can be recognized as a coparcener of Hindu Undivided Family considering them as a Karta is not enough under Mitakshara Law School they have to be treated equally as that of any son or other. Therefore in the nutshell, we can say that after the Hindu Succession (Amendment) Act 2005, female members can become the Karta of the Hindu Undivided Family.

Powers of Karta due to which occasionally unauthorized alienation takes place:
  • Power to alienate the property:
    The Karta has a supreme power to alienate the property, i.e. Karta can transfer the property through any means whether it can be a gift, mortgage, transfer, etc., and the transfer can be legally valid subject to the provisions of law and nature of transfer due to which sometimes unauthorized alienation takes place.

    Karta can exercise the power of Alienation under 3 circumstances [viii]:
    1. Legal Necessity
    2. Benefit of Estate
    3. Indispensable duties
  • Representation Power:
    The Karta can be regarded as the sole representative of the Hindu Undivided Family, in any matter ranging from socio, economy, or any other kind of legal issue. If the suit is being filed by any family member it has to be filed in the name of Karta.

    If any judgment is given against or on behalf of the Karta then that Judgment has an automatically binding effect on all the members of the family, this shows us that the Karta do have a power of representation on behalf of the other family members.
  • Power of Management:
    Karta does have the power of management, being the head of the family Karta can do all sorts of things to manage the family for the best interest. He can spend the income of that family as he does have the power of management.
  • Power over the income of the members:
    The Karta of Hindu Undivided Family do have the power and a right to take the income of the other members of a family who earn outside by the means of any job or any service. All the members have to hand over their earnings to the Karta of the family and Karta will eventually allot the money to the members according to the needs of each member.
  • Power to compromise:
    The Karta has the power to compromise the entire dispute related to the family matter. He is the sole person with whom the power to resolve the conflict which arises between the other family or among the member of the family. If the conflict could not be resolved by Kata then in that circumstance Karta can take the help of any other authority and the decision given by the authority does have a binding effect on all the members of the family.
  • Power to Contract Debt:
    The Karta of the family do has a right to enter into the contract for the welfare of the family or any purpose of the family. When a Karta takes a loan for the family than in that circumstance the individual member of the family can also be sued.

Remedies available with Coparcener when there is unauthorized alienation of the Property

Alienation of property can be done by the Karta of the family and the alienation can arise under 3 circumstances that are mentioned earlier. Sometimes, the alienation of property is being done as such it is not considered to be a valid alienation that arises when such alienation is being done without the expressed authorization of all the coparceners. If the Karta of the family steps out from his limit and makes alienation it is not in the best interest of the coparcener. In those circumstances, such alienation can be challenged by the coparcener who has an interest in the property.

Time Limitation for challenging the unauthorized Alienation

The Limitation Act, 1908[ix] (Repealed by Act 36 of 1963), therefore Limitation act prescribes the time limit within which the coparcener can challenge the unauthorized alienation before it becomes time-barred.

A son whose father has made unauthorized alienation of property, in that case, a son can challenge his father's alienation in 12 months. However, the other coparcener of the family can challenge the unauthorized alienation within 6 years.

[Burden of proof] [x] in case of unauthorized Alienation

In case of unauthorized alienation Burden of proof lies on Alienee. Alienee is the person in whose favor Karta has made the transfer. The person to whom the property has been transferred that person has to prove that the transfer is valid to transfer. He has to prove that the property which has been transferred by the Karta is because there was the Legal necessity for such kind or transfer; secondly, the alienation by Karta in favor of the benefit of the estate lastly if alienation is done to perform indispensable duties in this alienation by Karta is valid.

If the Alienee succeeds in the action of proving these facts then alienation will be considered valid alienation. Although Alienee is a stranger to the member of the family and he doesn't know the internal matter of the family it's a bit tough for him to conclude whether the alienation that is being done by Karta falls under the area of the three categories. Thus he needs to critically evaluate every material fact before the transfer of property as the burden of proof lies on him.

Thus in the nutshell, we can conclude to the fact that the burden of proof in case of unauthorized alienation lies with the Alienee.

From the above discussion, we can conclude the fact that property is the most vital and necessary part of any family, and alienation of that property by Karta without the consent of other coparceners would often lead to conflict and inconvenience among the members of a family. The Karta holds the Supreme position in the family and is the sole manager of the family, the whole family is represented by the person and that person is the Karta of the Hindu Undivided Family.

But, every coparcener does have a full right to use their property in the way they want and their right which is being carried with the property cannot be snatched by the Karta by the means of unauthorized alienation. The right of Karta to alienate the property under three circumstances is there which include alienation in case of legal necessity, alienation in case of benefit of the estate, and lastly in case of performance of indispensable duties but these circumstances and conditions are not clear and the scope could be further increased to avoid any kind of conflict.

The burden of proof in case of unauthorized alienation lies under the Alienee but it's important thing to note that the burden of proof should be shifted to some other person. Under this circumstance, Alienee is merely a stranger and the burden of proof lies on him solely and would not solve the overall problem of the case. Therefore, the ending point of this critical analysis is that alienation of property is one of the crucial concepts of Hindu law whose significance is prevailing in today's generation and the significance is further going to expand shortly.

  1. Transfer of Property Act, 1882, Act no. 4 of 1882
  2. Hindu Succession Act, 1956, Sec. 6, Act no. 30 of 1956
  3. The Indian Contract Act, 1872, Sec. 13, Act no. 9 of 1872
  4. Supra note 2
  5. Kandasami Asari vs Somaskanta Ela Nidhi Limited, (1910) 20 MLJ 371
  6. Commissioner Of Income Tax vs. Seth Govindram Sugar Mills Ltd, 1966 AIR 24
  7. Sujata Sharma v. Mannu Gupta 2015 SCC Del 14424
  8. Dr. Paras Diwan, Modern Hindu Law 328 (2016)
  9. Limitation Act, 1908, Act no. 9 of 1908
  10. Indian Evidence Act, 1872, section 101-103, Act no. 1 of 1872
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