In this article, Varsha Gupta of College of Legal Studies, UPES, Dehradun discusses Unauthorised alienation of property and consequences.
Introduction
Property has always been a tangled issue amongst the family members which leads to conflict in the society. The rights over properties changes with the birth and death of the family members. Alienation of such property can be defined as the transfer of property through gifts, wills or mortgage. The ownership is incomplete without having a right to alienate that property. However, in a joint family property all the coparceners have an equal right over the property and thus it cannot be alienated without the authorization of all.
Karta is the manager of the Hindu family and therefore possess some different rights. However, this doesn’t mean that property will be treated as his whole and he also has interest like other coparceners. Alienation of a property for the common good of the family is a classic example of joint hindu families in India which is always ready to accommodate each other. Transfer of property without any justification is the ground for studying such laws. Whenever the karta steps out of his power and does something which is prejudicial to the interest of other coparceners the court steps in and gives the coparceners right to challenge such unauthorized alienation which shall be discussed further in detail.
This research paper deals with the alienations by different members of the family, validity of the alienation, conditions related to alienation, challenges to an unauthorized alienation, burden of proof and rights of an alienee. This paper mainly focuses upon the alienation of property by karta without any necessity, benefit of estate or to fulfill indispensable duties which are commonly known as unauthorized alienation. This paper addresses itself to one of the anomalous situation that is faced with the burden of proof in challenging the alienations.
Unauthorised Alienation of Property
Unauthorized alienation of property means the transfer of the property without any justification which leads to invalidation of such transfer. As discussed earlier alienation can be done through will, gifts or mortgage. As we know that karta is the manager of the hindu families and therefore works for the welfare of the family. Alienation can be defined as “it includes as any disposal by the father, karta, coparcener or the sole surviving coparcener of a part or the whole of the joint family property by any act or omission, voluntary or involuntary, intended to take part in presentor future.[1]
Karta’s Power of Alienation
It is always said that the power of hindu joint family vests in the karta. But when it comes to property matters, he is not the sole owner of the property and therefore power of alienation can be exercised by him only in certain cases. The powers of the karta under dayabhaga school are similar to that under mitakshara law. The alienation of property by karta can be done only in three circumstances i.e. necessity (Apatkale), benefit of the estate or for performance of indispensable duties. Now the question comes that how such authorization can be made? It can be done either expressly or judicially. Where some coparceners are major coparceners, he is not expressly authorized to do so, though this can be of help in filling the gaps to a limited extent, while providing legal necessity.[2]
Benefit of Estate
Benefit of estate which was commonly known as “kutumbarthe”. It has been explained that the alienation can be done for satisfying the needs of family property or any other family estate is benefited. Primarily this was allowed when transfers were purely defensive or protective in nature but with the instances of dilution of ‘apatkale’, alienations that an ordinary prudence man would view as appropriate in the given set of situations are also approved.[3] The alienations by the karta in favour of benefit of estate are not void and therefore are authorized under the law.
Legal Necessity
The courts have safeguarded enough measures while defining these terms so that they are not into a watertight compartment. Legal necessity can mean all acts done to fulfill the essential needs of the family members in emergency situations like flood, war, famine etc. It differs from the word purpose, to exercise this option there should be no alternative sources left with the karta.[4] Therefore we can analyze that the courts have given enough power of alienation which can be justified on these grounds.
Performance of indispensable duties
Proceeding to the third ground, the property can be alienated by the father or karta where the indispensable duties such as obsequies of the father or the like.[5] This also includes the marriage ceremonies of the family members which is also considered as legal necessity as it is the most essential sanskara.[6] Alienations are also permitted for charitable and pious purposes. However, here the quantum of the property sold is performance of indispensable religious ceremonies or where the transaction would be for benefit of estate, but only a small portion of family property can be alienated for pious or charitable purposes. The point to be noted here is that pious obligation does not include gifts made out of love and affection. Thus, it is very clear that karta or father can alienate property only with respect to performance of religious and indispensable duties.
Sole surviving coparceners and power of alienation of property
When a single coparcener is left with the property the question arises does he have absolute power over such property? According to principles of Hindu Law, A sole surviving coparcener becomes the separate owner of the property and entitled to pay the maintenance to the widows of the family. However, a child present in the womb at the time of alienation can challenge its validity. There is a contrasting view of the courts in case of adopted sons to have right over that property.[7] This is not applicable to child born subsequent to the transaction.
Invalid alienation of property
As discussed earlier, the grounds on which Karta can alienate the property if anything is done contrary to the aforementioned grounds then such alienation is invalid. The alienation by the karta can be invalid for two reasons i.e. when such alienation has been obtained without the express authorization of all the coparceners and secondly when the alienation is not made in favour of any of the aforementioned grounds. However, the judge made-law has certified certain exceptions and allows even voluntary alienations of undivided property in the state of Bombay, Madhya Pradesh, and Madras.
Status of such alienation
An alienation made in contrary to the objectives of the Hindu law is not void, but merely voidable[8] at the option of the other coparceners who, if major did not consent to this alienation or were minors at that time.[9] 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. Alienation can be made for the benefit of the estate, for legal necessity or for meeting any antecedent debts, for management of the joint property by the karta or pious obligation of a son to discharge his father’s debts subject to section 6(4)[10] of the Act as amended in 2005 which has abolished the doctrine of pious obligation for the debt contracted after 2005.[11]
Coparceners right to challenge such alienation of property
If the father, karta, coparcener, sole surviving coparceners steps out of their power and makes any alienation then such alienation can be challenged and set aside before it becomes time barred. According to Article 126 of the Indian Limitation Act, 1908 the period of limitation for a son to challenge his father’s alienation is 12 months and as per Article 144 the period of limitation for coparceners to challenge the alienation made by karta is 6 years.
Burden of proof lies on the alienee
It is a well settled law that when the validity of alienation is challenged before a court, the burden of proving that the transfer is valid lies on the alienee. Alienee is the person in whose favour karta has made the transfer. This is not subjected to any exceptions. When we deal with this the obvious thought that comes up is why alienee should be made liable? How is he supposed to know the family matters of Karta? Why should he prove that the transfer fell within the three grounds i.e. the legal necessity, benefit of estate or for performance of indispensable duties? This is always justified on the ground that it is prejudicial to the interest of the coparceners and alienee is seen as a beneficiary. If we critically analyze this there are many problems with such interpretation.
- Alienee is a stranger to the family members and therefore how can he know about the internal matters of the family. When the burden of proof lies upon him, he is required to go deeply into the matters of the family and inquire whether the transfer falls within any of the three categories.
- Secondly, for proving that the transaction was done for legal necessity he is required to show that there were no other financial alternative resources. Financial matters are the intrinsic matter of the family and thus alienee may have a difficulty in proving this.
- It is against the principles of natural justice. Litigation is very time-consuming process and it may sometimes take up to 10-20 years. It is clear that proving the validity of such transfer is very difficult on the part of the alienee as the ground of alienation are directed towards the internal family matters.
- Mere recitals in the transfer deed do not prove the validity of the alienation,[12] but only have the effect of putting the alienee on the ground; to probe further into the matter e.g., a recital in the mortgage deed executed by the karta may say that the property is mortgaged to use the loan for payment of government dues. Whether these dues exist, whether the family has alternate resources to pay them off or not, and whether the amount of dues is in consonance with the consideration or not, are the facts that must be ascertained by the alienee, from the karta, the coparceners or from other family members or even through independent means.
Rights of Alienee
In the states where an undivided coparcener is entitled to alienation his interest in Mitakshara coparcenary, such alienation cannot be challenged. In the states where he is not permitted to do, it can be set aside with the help of the court.
Right to Partition
The right to partition of the alienee has been interpreted by the courts in the different manners. However, it is well settled that this right exists. According to the Bombay and Madras High Courts, the purchaser cannot demand the very property which has been sold to him. He can only ask for the general partition of the interest of his alienor.[13] The reason is that because of the unity of ownership of the coparcenary property, the alienor coparcener cannot be held to be entitled to the specific property to the exclusion of the other coparceners.
Right to Mesne Profits
Mesne profits means the profit that has been accrued by a person by wrongful possession of a property as defined under Section 2(12) of Civil Procedure Code. Alienee is not entitled to any mesne profits from the date of purchase till date on which partition is decreed. The Supreme Court held that a purchaser in an auction purchase of coparceners share in execution of a money decree against him is not entitled to mesne profits from the date of his purchase.[14]
Right of Joint Possession
This right is different under different state laws. In the State of Bombay, the purchaser of such alienated property is entitled to sue for partition of the property and specification of his share. If the partition is effected he can take the exclusive possession of the property. In case, the partition is not affected and the property is delivered to the purchaser, and he takes the possession, the other coparceners are entitled to have joint possession with him, or they can file a suit for the recovery of possession from him.[15]
While in the State of Madras, U.P., West Bengal, Patna, Madhya Pradesh if the coparceners alienates his share in Mitakshara coparcenary, alienee gets only an interest to the extent of the coparcener’s share as it stood at the time of the alienation. He need not ask for general partition.[16] There also seems to be a consensus among judges and textbook writers that the alienating coparcener retains his status as a coparcener even after alienation and can take the whole of the remaining property as coparceners.[17]
Conclusion
Every coparcener has the right to make the full use of the joint property without retarding it or using it in such a way that is prejudicial to the interests of other coparceners. However, being the manager of the family karta should have some privilege in respect of maintaining the whole business of the family. It is necessary to devolve some powers onto him for the expedient functioning of the family business. Alienation of property is one such power which is given to him to be exercised in case of legal necessity and other two grounds. As far as these grounds are concerned they can be interpreted widely as well as strictly. We have most of the high court’s judgments on the issue involved. The Supreme Court should also intervene in these matters and explain the literal meaning of the word legal necessity, benefit of estate and performance of indispensable duties. The worst situation is with the challenge of unauthorized alienations. The burden of proof is rest on the person who is a stranger to the transaction.
The author suggests that instead of shifting the burden on the alienee the powers of karta should be strictly interpreted so that no unlawful means are used. It is because of the fear that the alienee has to prove everything he may not enter into a contract even when there is a legal necessity. This will also result in loss to the family. Rights of alienee should be made similar in all the states by the apex court rulings and not by the individual opinion of every high court. It might be that karta and alienee are of two different places and their laws are different which may affect the whole process of alienation. An alienee should not be made liable for everything because that will discourage others to help the families in need. As far as gifts made by the father to daughter are concerned he should be able to make such gift and moreover, now the daughters are also the coparcener of the family as amended in 2005. Two things have to be there accountability as well as responsibility and neither must exceed. Thus, a lot of checks have been imposed by the courts on the powers of karta so that it is not misused. Karta works for the welfare of the family. Law has provided enough safeguards to the family members to be used against any despotic behavior of the karta.
[1] Hari Singh Gour,the hindu code 586 (6th ed., 1996).
[2] Salamat Khan v. Bhagat, AIR 1930 All 379; Khushi Ram v. Mehr Chand, AIR 1950 East Punjab 272.
[3] Balmukund v. Kamlavati, AIR 1964 SC 1386.
[4] Bukshum v. Doolhin, 3 BLR ACJ 423, 12 WR 337.
[5] Mitakshara I, 1, 28, 29.
[6] T.V. Subbarao and Vijender Kumar, (rev.), GCV Subba Rao, Family Law In India 77 (9th ed., 2006).
[7] Mahadevappa v. Chandabasappa, AIR 1965 Mys. 15; Bhimji v. Hanumant Rao, AIR 1950 Bom. 271.
[8] R. Raghubanshi Narain Singh v. Ambica Prasad, AIR 1971 SC 776.
[9] Ramesh Damodhar Deshmukh v. Damodhar Domaji Deshmukh, 1999(1) Mh.L.J 153.
[10] Hindu Succession Act, 1956.
[11] Shalini Sumant Raut and Ors. v. Milind Sumant Raut and Ors., 2012 SCC OnLine Bom 1839 : (2013) 3 Mah LJ 364 : (2013) 1 AIR Bom R 713 : 2013 AIR CC 489 : (2013) 5 Bom CR 430.
[12] Sreeramulu v. Thandana Krishanayya, (1942) 2 Mad LJ 452.
[13] http://www.scribd.com/doc/68527077/Alienation-Under-Hindu-Law.
[14] Sidheshwar Mukherjee v. Bhubneshwar Prasad Narainsingh, 1953 AIR 487, 1954 SCR 177.
[15] Dugappa v. Venkataramanya, (1881) ILR 5 Bom 493.
[16] M.V.S. Manikayala Rao v. M. Narasimhaswami, AIR 1966 SC 470.
[17] See Mulla, Principles of Hindu Law 299 (13th ed., 1966).
