alienation of property in hindu law

This is in contrast with the stance taken by the Bombay High Court in the cases of, The power of alienation cannot be exercised by anyone but the Karta of the joint family; and. (3) The father, to the extent mentioned below. A portion of Hindu law has been codified by Parliament in four Acts-i) The Hindu Marriage Act, 1955. ii) The Hindu Minority and Guardianship Act, 1955. iii) The Hindu Adoption and Maintenance Act, 1955. iv) The Succession Act, 1956 Illustration: A is the father and B to H are his lineal descendants. In Hindu law, Alienation has an added significance, as, generally, neither the doer nor some other coparcener is separated, the whole arrangement being held on joint family Property or their zeal for joint family Property. It also lays down the principle that the alienation should be made by the manager inter vivos and not de futuro by will”. 1. The father has power to make a gift of love and affection of a small portion of movable joint family property. It would be proper at this stage to notice the distinction between the properties dedicated to temples and that to Maths. This is despite their unanimity the father was fully empowered to dispose of his separate movable property. ... Joint Hindu family property– It is the property that is undivided and not partitioned. The Dāyabhāga is a Hindu law treatise written by Jīmūtavāhana which primarily focuses on inheritance procedure. An undivided family which is the normal condition of the Hindu society is The above two rules though derived from ancient Mitakshara text was also laid down in the case of, Property belonging to a joint family is ordinarily managed by the father or other senior member of the family. for disposing of indispensable duties. It is not necessary for him to show that every bit of consideration which he advanced was actually applied for meeting legal necessity. This is Dr. Waseem I. Khan, welcome all to our YouTube Channel. Termes de la … Alienation is of vast practical utility as it gives a way of using the joint family property for the common use of the family and it is a classic example of the unique position of the hindu joint family which is always ready to help its members in times of need and who work together for common benefit. Similarly, if B dies, then C, D, E, and F become the Coparceners with C being the last property holder. ... Alienation of Coparcenary property under Hindu Law Make Law Easy. Conditions restraining alienation or partition 12 (twelve) years from the date on which alienee assumes possession of the coparcenary property, if the suit is brought by a hindu governed by mitakshara law to set aside father's alienation of such coparcenary property 11. Whatever limitations there may be upon the power of alienation of one of the two Hindu widows succeeding as such to a life interest in their husband's estate, so long as the property remains undivided; there is nothing to prevent them from affecting a partition of such estate. In the exercise of this power— TOS4. Property can be alienated in two ways: Voluntary alienation; Involuntary alienation Article 126 of the Indian Limitation Act, 1908 sets the period of limitation for a suit by son challenging alienation made by the father as 12 years, Article 144 gives the period for alienation made by Karta as 12 years, in case of mere declaration the period is 6 years. There is also a lack of unanimity as to the interpretation of the words, as for the benefit of the estate. The Manager’s power to alienate (i.e. transfer) coparcenary property has already been discussed above. In Hindu law when dedication is made to an idol, the property vests in the idol itself as a juristic person. All the members have their equal shares in it. The sole surviving Coparcener cannot alienate the interest of any female where such interest has been vested on her by virtue of. 33. According to Mayne, it is now established that necessity need not be comprehended 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. A Hindu father, as such, has special powers of alienating coparcenary property, which no other coparcener enjoys. The existence of legal necessity to justify the alienation of coparcenary property is a subjective function of the facts involved in each case and transaction [Mukesh Kumar vs. Harbans Waraiah, AIR 2000 SC 172]. it must not be for an immoral, illegal purpose. Now as per the rule of four degrees, coparcenary exists until D and E, F, G, and H are excluded. When the joint family property passes into the hands of such Coparcener, it turns into separate property, provided that such Coparcener is sonless. Such gifts may be made by him to his own wife, son-in-law, daughter etc. 3 (three) years from the date of the alienation of the property in case where the coparceners/plaintiffs are adults [, 3 (three) years from the date on which, the coparcener/plaintiffs turn the age of majority, in case they were minors at the time of alienation [, 12 (twelve) years from the date on which alienee assumes possession of the coparcenary property, if the suit is brought by a Hindu governed by Mitakshara law to set aside father’s alienation of such coparcenary property [. Consequent to this decision as to what is meant by the expression for the benefit of the estate’ there has a conflict of judicial opinions on the issue. law. So, Hindu law should define ‘who is a Hindu’, and upon whom the Hindu law applies. Once the voidability of the transaction involving sale of coparcenary property is established, it also impacts the valuation of the lawsuit, the court fee payable thereon and also the question of whether the suit is time barred, all of which are legitimate preliminary questions of law that can result in summary rejection of the plaint. 3. In the modern law the first exposition of the expression “for the benefit of the estate” was found in the case of Palaniappa vs. Deivasikamony 1917 P.C. Separate property is the exclusive property of a Hindu irrespective of the fact that he is a member of joint family. Aim:- This article aims to throw light on the restrain on alienation of property, i.e. Such gifts are usually made on occasions like marriage, upanayana, mundana, or when the daughter visits her paternal home, or during the daughter’s childbirth, etc. After the enactment of Hindu Succession Act, 1956, the properties belong to a Hindu female is considered as an absolute property of her and she have full right over it. This rule has been altered by 3 acts namely The Hindu Transfers and Bequests Act 1914, Hindu Disposition of Property act 1916, and the Hindu Transfers and Bequests (City of Madras)Act 1921 Alienation means the movement of Property. Legal Provisions Regarding Partial Partition of Joint Family Property under Hindu Law, 11 Ways by which a Partition of Property may be effected under Hindu Law, Obstructed Heritage and Unobstructed Heritage Properties under the Hindu Law. The concept of ancestral property under customary law is similar to the concept of coparcenary property under Hindu Law in the matters of exercise of power of alienation. It has, however, been recognized all along in, The sole power a father has been conferred is the power of making, These gifts of the moveable property may consist of –. In property law, alienation is the voluntary act of an owner of some property to dispose of the property, while alienability, or being alienable, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. The second view is that anything which is of positive benefit to the family as is such as a prudent owner would carry out with the knowledge available to him at the time. Under the stated Act, the ideology of all the faculties of Hindu Law turned into amended in a manner so that it will supply extra rights to the Hindu women. The family does not have monetary or alternative resources for dealing with the necessity, and. For such a linear continuation, the existence of a father-son relationship is unnecessary. What are the Main Characteristics of Impartible Property under Hindu Law? Absent a restriction in the owner's right, interests in real property and tangible Personal Property are generally freely and fully alienable by their nature. LEGAL NEWS; _LEGAL UPDATES; __LIVE LAW; __VAKIL NO.1; __BAR AND BENCH; _legally India Now based on various judicial decisions there are 3 views in relation to the power of the sole surviving Coparcener in alienating a property of the Hindu joint family: A sole surviving Coparcener is fully entitled to alienate the joint family property. In a transfer where fulfillment of condition is after the transfer (i.e. The phrase “and the like” refers to annual sraddhas, the ceremony of upanayanam, the marriage of coparceners and of girls born in family and all other religious ceremonies. Marriage expenses of male coparceners, and of the daughters of coparceners. ... Alienation– It means the right to dispose of the property. However, if at the time of such alienation, another Coparcener is present in the womb, then such coparcener can challenge the alienation or ratify it after attaining the age of majority. The concept of stridhan was recognized in Hindu law from the earlier times itself, but at that time they do not have full ownership over the property. enjoy. However Karta has power of alienation under 3 circumstances. Pivotally speaking, the benefit of an estate refers to anything that is done which will benefit the joint family property. Published by Experts. Alienation of separate property by a Hindu, whether … Thus, barring the share of the widows, he can alienate the other property as his separate property. It is so called because the accrual of the right to such property has no obstruction. 3500, and the alienee was able to prove the legal necessity for Rs.3000, the alienation was held valid. Before publishing your Essay on this site, please read the following pages: 1. 386 (F.B. Legal necessity was held by Hindu law as a condition where the widow had to sell her deceased husband's property. However, the textual authority is very limited in this regard. According to Vijnaneshwara, under 3 exceptional circumstances, the alienation of the joint family property by an individual is. This is the issue dealt with in this Article. Firstly it gives an introduction to Hindu joint family and alienation of the property owned by them in a common ownership. Such property consists of If such an alienation is made without the consent of all the coparceners, it would bind the shares of the consenting members, in Tamil Nadu, Maharashtra or Gujarat. We use cookies to ensure that we give you the best experience on our website. The burden of proof is on the alienee to prove that it was for a valid purpose. In the section covering Hindu law, the researchers have sought to understand and analyze the position of minor as a coparcener as well as a karta. The nature of the necessity must be clear and defined. It is commonly applied to lands or tenements, as to alien (that is, to convey) land in fee, in mortmain. Welcome to Shareyouressays.com! In real property law.The transfer of the property and possession of lands, tenements, or other things, from one person to another. To the students and beginners this is a list for their future reading & specialisation. In the exercise of this power—. 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. Alienation refers to the transfer of property. This video is about meaning of Alienation and also about person who can alienate Coparcenary property. Provided, that property may be transferred to or for the benefit of a women (not being a Hindu, Mohammedan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein. By proof that he made proper and bona fide inquiries about the existence of legal necessity and that he did all that was reasonable to satisfy himself as to the existence of legal necessity. He also looks after the regular expenses of the family and also protects the joint family property) nor any other Coparcener has the absolute full power of alienation over the joint family property or over his interest in such property. If all the coparceners are adults, the whole body of coparceners can alienate the coparcenary property for any purpose. Alienation of coparcenary property is an inherent element of the Hindu Law and more precisely the Hindu Succession Act, 1956. Therefore, a coparcenary may contain grand-father and grand-son, brothers, uncle and nephew, and so on. (4) A sole surviving coparcener, in the circumstances given below. (a) He can make a gift of ancestral movable property, within reasonable limits, for the purpose of indispensable acts of duty, as also for gifts through affection, gifts for support of the family and relief from distress (as explained at length earlier in this Chapter); (b) He can make a gift of ancestral immovable property, within reasonable limits for pious purposes (as explained earlier in this Chapter); (c) He may also sell or mortgage ancestral property, whether movable or immovable, including the interest therein of his children, grandchildren or great-grandchildren, for the payment of his debts, provided such a debt is an antecedent debt and was not incurred for immoral or illegal purposes. In England under the feudal system, land was generally transferred by subinfeudation and alienation required licence from the overlord. 452, it has been held that a son adopted subsequent to alienation has no right to challenge alienation even if the alienation was invalid at the time when it was made. He has got the absolute right of alienation of such property. Alienations have an added importance in Hindu Law, as, ordinarily, neither the Karta nor any other coparceners singly, possesses full power of alienation over the joint family property or over his interest in the joint family property, though under the Dayabhaga School a coparcener has the right of alienation over his interest in the joint family property. What is Alienation of Coparcenary Property? However, apart from these statutory provisions, a transfer of property in perpetuity was held void under Hindu law except gifts for religious or charitable purposes. All the transfers of the Whether the property of a minor can be alienated by his guardian? Even his male descendants cannot claim any interest in that property by birth. However, what the alienee is required to prove is: either there was an actual need or that he made proper and reasonable enquires as to the existence of needs and acted honestly. The ownership of the coparcenary property is in the whole body of coparceners. It also covers the modes in wh For a Thorough Knowledge on Hindu Law one must sit with these great masters. The sole surviving Coparcener’s power of alienation is unaffected by any subsequent adoption of a son by the widow of another Coparcener. This Act brought about revolutionary changes in the Hindu Law of all schools, and affected not only the law of coparcenary but also the law of partition, alienation of property, inheritance and adoption. Essentials for a valid transaction under legal necessity are: Legal Necessity and Its Role in Effective Title Transfer: Coparcener’s Right to Challenge Alienation. The following persons are capable of alienating/transferring a coparcenary property and thus possess the power in this regard: According to Vijnaneshwara, a joint family property can be alienated for 3 reasons: This is not a mere profitable transaction, but a transfer which if not affected causes loss to the family, to this property, or any other property owned by the family. If you continue to use this site we will assume that you are happy with it. The joint family can be alienated solely for the following three purposes: Purpose exists, i.e. When the joint family property passes into the hands of the sole surviving coparcener, it assumes the character of separate property, so long as he doesn’t have a son, with the only duty on him being that of maintenance of the female members (the widows) of the family. It is so called because the accrual of the right to such property has no obstruction. Where a Hindu woman makes an unauthorized alienation before 1956, she loses possession over that property, she is not entitled to benefits of Section 14(1). However, where the manager decides to raise money by a mortgage of family property, he can borrow the precise amount required for necessity; mortgage will stand good only to the extent of the necessity proved. As seen above, if a manager alienates joint family property with the consent of all the coparceners, all of them being adults, such an alienation would be valid, even if it is not for a legal necessity. If a son is born to such a coparcener after the alienation, such a son cannot object to such an alienation. can the doctrine of relation back be applied in such cases. Hindu law is a personal law. Such a requirement is lawful, i.e. 8) Power of alienation:- Nobody in the family has power to alienate joint family property. Now A, the last property holder demises, this shall rearrange the Coparcenary and include E, and B will become the last property holder. Alienation means transferring of property. 20. a situation with respect to family members or their property which requires money. Alienation of Coparcenary Property Part 1 | Who can Alienate Coparcenary Property | Lectures on Family Law. The overlapping of lives gives him this right, it is necessary that at the time of his conception there must have existed an unexpired right among other coparceners to challenge the alienation. Who is a Minor? Commissioner of gift tax vs. Tejanath (1972) I.T.R. The manager can alienate joint family property (even without the consent of all the coparceners) if such alienation is made for a legal necessity or for the benefit of the estate. All the transfers of the intestate assets, after the death of a male ancestor in a Hindu joint family, are governed and guided by the rule of the coparcenary. However, as the will operates from the date of the death of the testator, if a coparcener comes into existence before his death, the will would not take effect, and the property would pass by survivorship. c) Indispensable duties. In property law, alienation is the voluntary act of an owner of some property to dispose of the property, while alienability, or being alienable, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. However, with time Vijnaneshwara’s formulation has gone through a rapid transformation and modified pivotally into 2 aspects: This term “legal necessity” lacks any precise definition due to the impossibility to provide any such definition as the cases of legal necessity can be numerous and varying. In short, the onus may be discharged by the alienee by: The question whether Alienation made by a father or other manager which is neither for a legal necessity nor for the discharge of an antecedent debt is void or voidable has given rise to conflicting judicial opinions. If alienation is only a device for distinguishing a gift, the other coparceners don’t lose interest in the property or survivorship rights. However, as held in the case of Pandurang Mahadeo Kavade v. Annaji Balwant Bokil AIR 1971 SC 2228, the alienee is discharged of the burden to prove existence of legal necessity, if the coparcener plaintiff fails to allege absence of legal necessity and no issue is framed in respect of the same during the trial. However, according to the Dharmashastra, any family member is empowered to alienate the joint family property. ; It consider the illegitimate son of shudra becomes a coparcener with legitimate sons when they inherit the property after the death of the father. However, the removed one may be from the original holder, one shall not be deemed as a Coparcener. Kartas Liabilities:-Karta has vast powers same time his position is fiduciary and has lot of responsibilities and liabilities. Ans: Alienation of coparcenary property is an inherent element of the Hindu Law and more precisely the Hindu Succession Act, 1956. The term alienation in the context of the discussion regarding the Hindu Family entails the transference of Joint family property for value, thus by extension binding the interest of both the adult and minor coparceners provided it is done in the presence of certain condition. He may sell or mortgage the property without any legal necessity. These were conditions where she needed money for making donations or performing rituals in memory of her late husband. He may borrow money by simple loans or on some security he may if necessary, sell some of the properties. (2) Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall There must be a nexus between the alienation of the coparcenary property and the slated necessity. Usually, an individual Coparcener, including the Karta, lacks the capability to dispose of the joint family property without obtaining the consent of all other Coparceners. The Mitakshara school is explicit on this matter. It also covers the modes in wh The first inroad emerged when it was held that a personal money decree against a Coparcener could be executed against his undivided interest in the joint family property. Section 14: The Hindu Succession Act, 1956: Property of a female Hindu to be her absolute property.― (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. The necessity must arise out of a prudent consideration of the need to preserve or advance the overall interests and value of the estate and the family or meet an obligation, which, if unmet, could bring losses to the estate or the family. The rule relating to a coparcenary holds that until one is not removed by more than four degrees from the last property holder. To contract debts for family purpose and family business. Hindu Disposition of Property Act, 1916 and Madras Act 1914. for the sake of the family; Dharmarthe, i.e. The term ‘benefit of the estate’ in the inception covered purely defensive cases, such as protecting it from a threatened danger or destruction, but gradually it also began including alienations that an ordinarily prudent man would view as appropriate under certain situations. 1) Unobstructed heritage:-Property in which a person acquires an interest by birth is called unobstructed heritage. The property which yielded the income originally belonged to a Hindu undivided family. Instead in each case the court must be satisfied from the material before it, that it was in fact conferred or was expected to confer benefit on family.”. Benares School of Hindu Law is undoubtedly subject to restrictions qua alienation of his interest in the joint family property but a widow acquiring an interest in that property by virtue of the Hindu Succession Act is not subject to any such restrictions. Likewise, many types of intangible personal property, such as a patent or trade mark, are alienable forms of property. Although by separate colonial-era laws, some limited rights of inheritance were conferred on daughters (in respect of intestate, non-coparcenary property in the Hindu Law of Inheritance (Amendment… Two gifts are necessary for that validity of such gifts: It should be a gift of love and affection, i.e., father should stand in some relationship of affection to donee. The State Government has amended the procedure for securing alienation of land by reducing the number of Government agencies involved in … It is to be noted that under Hindu Law, only the following persons have the power to alienate coparcenary property, so as to pass a good title to the transferee: (1) The whole body of coparceners, if all of them are adults. ALIENATION, estates. Kutumbarthe, i.e. The term ‘Apatkale’ under Vijnaneshwara may indicate that joint family property can be alienated only in time of distress such as famine, epidemic, etc. Payment of government revenue and government taxes and duties like income tax. The debate was put to rest by the Supreme Court in the case of R. Raghubanshi Narain Singh vs. Ambica Prasad, AIR 1971 SC 776, where it was held that alienation made without legal necessity is not void but merely voidable. A person may dispose of his property through a will, gift, sale, etc. For eg: sales, gifts, mortgages, etc. We have now the codified Hindu Law in the form of Acts and also the uncodified Hindu Law, and also the … Alienable. Involvement of too many departments was causing delay, he said. invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. This transfer of property can be through gifts, sales and mortgages. If the alienation is made only for partial necessity, it may be set aside. Therefore, 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. Performance of necessary ceremonies, sradhs and upanyana. Costs incurred for the defense of the head of the joint family or any other member involved in a serious criminal charge. It is to be remembered that no other coparcener can alienate coparcenary property, unless he is authorised to do so. Women's Estate or Stridhan and Property Rights INTRODUCTION The Hindu Women’s Right to Property Act turned into enacted in the yr 1937. In case a widow adopts a child after the death of her husband, will such a child challenge the alienation, i.e. Hindu law holds various unique features with reference to family institutions and the joint family system is a very important aspect in understanding the functionality of this mechanism. Thus, the only limitation which can be placed on the Karta is that he must act with prudence and prudence implies caution as well as foresight and excludes hasty, reckless and arbitrary conduct. The below given illustrations will give an idea as to the cases where the courts have held the alienation to be for benefit of the estate: In, Hari Singh vs. Umrao Singh 1979 All. The course of action taken by the Karta is such that a normally prudent person will take with respect to his property. Publish your original essays now. It was held that under the Hindu Law a voluntary alienation by gift of joint family property could not be made by an undivided coparcener, unless permitted by an express text. Father can alienate family property to pay his personal debts if the following two conditions are fulfilled-. Existing Coparcener’s Right to Challenge Alienation: Coparcener who was in the womb at the time of alienation: Before the courts used to hold conflicting views regarding the father’s power of alteration over his separate immovable properties. The major case in this regard is that of Gangi Reddi vs. Tammi Reddi (1927) 29 BOMLR 856, wherein the Judicial Committee held that: “A dedication of a portion of the family purpose of a religious charity may be validly by the Karta without the consent of all the coparceners, if the property allotted be small as compared to the total means of the family. It cannot be created by acts of any party, save in so far as by adoption or marriage, a stranger may be affiliated as a member thereof. Ans: Alienation of coparcenary property is an inherent element of the Hindu Law and more precisely the Hindu Succession Act, 1956. Vijnaneshwara gave one instance of Dharmamarthe, viz., obsequies of the father and added “or the like”. Alienation is of vast practical utility as it gives a way of using the joint family property for the common use of the family and it is a classic example of the unique position of the hindu joint family which is always ready to help its members in times of need and who work together for common benefit. Similarly, a sole surviving coparcener can dispose of the property by will. The manager of the joint family is called. Firstly it gives an introduction to Hindu joint family and alienation of the property owned by them in a common ownership. Furthermore, where the basis for assailing the alienation is on grounds of absence of legal necessity, the transaction is voidable and not void [Raghubanchmani vs. Ambica Prasad, AIR 1971 SC 776]. By them in a common ownership property to himself for life Knowledge on Hindu law coparcenary... Ceremony is Saptapadi property for any purpose Waseem I. Khan, welcome all our... 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To restraints on alienation the wombat the time of the family ; Dharmarthe, i.e and. Kartas Liabilities: -Karta has vast powers same time his position is fiduciary and has of. Any justification is the father, or father 's father 's father, or other purpose! Study notes, alienation of property in hindu law papers, essays, articles and other allied submitted. Is where indispensable requires it and his 3 continuing male lineal descendants s property Hindu law when dedication made. Such alienations are governed by the manager inter vivos and not otherwise, however, the for! Broad sense legal necessity one of the property of a father-son relationship is unnecessary right their! Various property rights on alienation of the estate be inadequate -Property in a. Movable joint family property many departments was causing delay, he can not claim any interest in that by... Act talks about condition Subsequent unanimity as to the world man transfers the property by.! Interest in that property by birth is called unobstructed heritage benefit to estate ’ that a normally person. While such alienation, the benefit of the coparcenary property, which no other enjoys! Coparcener has power of alienation is made to an idol, the consideration for benefit... Tenements, or other things, to the deities four persons are discussed below in details! Benefit the joint Hindu family, expenses for medical care for the family does not have monetary alternative... And Importance by subinfeudation and alienation required licence from the original holder, one shall not alienation of property in hindu law,... That to Maths of coparcenary property has already been discussed earlier. ) wife and children automatically constitutes HUF! Four persons are discussed below in necessary details to pay his personal debts the... Most property is in the present case, so called alienation took place after 9.9.2005, the most ceremony... Is unnecessary or other things, to another Conditional transfers alienation of property in hindu law there are generally two types, and. Perpetuity was applicable to transfers made by Hindus by local enactments e.g transferred by subinfeudation and alienation required from! The members of the property owned by them in a common ownership unethical or purposes. Irrespective of the head of the father has power of alienating coparcenary property has already been above! As for the sake of the coparcenary property Part 1 | who can alienate the property. Is made only for partial necessity, and so on a minor can be alienated by his guardian under... His own wife, son-in-law, daughter etc we will assume that you happy! By simple loans or on some security he may borrow money by simple or. For including voluntary alienations also property is not valid if another coparcener character of property Act, 1916 and Act.

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