Q.

Define the term Transfer of property , what

are the Essentials of a valid Transfer of
Property?
Transfer of Property means
an act by which a living person can conveys property, in present or in
future, to one or more other living persons, or to himself, or to himself
and one or more or other living persons, and to transfer property is
to perform such act.

The object of the Transfer of Property Act is to define and amend law
relating to Transfer of Property by act of parties and not to transfer
by operation of law. A Transfer of Property is a contract hence all
necessary requirements to constitute valid contract are to be fulfilled.

Essentials of valid transfer

There are 8 essentials of Transfer of Property , which are as follows -

A) Transfer must be between two or more living Persons (Section.5) -

The Transfer must be inter vivos. Therefore there cannot be a transfer

to person not in existence at the time of transfer. The living person
including company or Association or body of individuals whether
incorporated or not .

B) The property must be transferable (Section. 6) -

Property of any kind of may be transferred, excepts as otherwise mentioned

in S.6(a) to (I) cannot be transferred. Therefore those properties
described in the clauses (a) to(I) of Section.6 cannot be transferred.
These are restrictions on the Transfer of Property and any transfer in
contravention of any of the clauses given in Section 6(a) to (I) is null
and void.
C. The Transfer must not be -

1) opposed to the nature of interest affected thereby

Section.6 (h) ;

2) for unlawful object and consideration as per provision of

Section 23 of the Indian Contract Act 1872,

which provides a consideration or object is

unlawful if -

a) It is Forbidden by law, or

b) It is of such a nature that it defeats

the provision of any law, or

c) is fraudulent, or

d) it involves or implies injury to the person

or property of another or

e) the court regards it as immoral or opposed

to public policy.

3) To a person legally disqualified to be a transferee. As per Section

136. of Transfer of Property Act, a Judge, a legal practitioner are an
office are connected with Court of Justice are disqualified from
purchasing in actionable claim. This prohibition is only with respect to
actionable claim. It does not apply to any other kind of property.

D) Persons competent to transfer (Section.7) -

Every person is competent to contract and entitle to transferable property,

or authorised to dispose off Transferable property not his own, is
competent to transfer such a property either wholly or in part, and
either absolutely or conditionally, in the circumstances to the extent
and in the manner, allowed and prescribed by any law for the time being
in force

Who is competent to transfer ? The transfer your must be -

1) Competent to contract -

According to Section 11 of the Indian Contract Act, every

person is competent to contract who is the age of majority. under section.3
of the Indian majority Act,1875 a person attains majority at the age of
18 years and if a Guardian is appointed, he would attend majority at the
age of 21.

2) Sound mind -

Under section 12 of the Indian Contract Act, a person is of sound mind

of the purpose of making contract if he is capable of understandings it
and of forming a rational judgement as to its effect upon his interest.
A contract made by a person of unsound mind is void

3) Disqualified person -

An insolvent and alien enemy are disqualified from contracting. A transfer

by a defacto Guardian of minors property is invalid and will be hit by
section 11 of Hindu minority and guardianship Act, 1956.

4) Transferor must be entitled to transferable property - or authorised

to dispose off Transferable property not his own. One who is absolute owner
of the property and property is free from encumbrances is capable to
transfer the same. An owner of the property May authorise his power of
attorney holder to transfer the property for him and on his behalf.
The Transfer must be made in the mode prescribed by the Act, under section
9 . -

Section 9 of Transfer of property provides that for oral transfer, A

Transfer of Property may be made without writing in every case in which
a writing is not expressly required by law.

Writing is necessary in case of following instruments -

1) sale of immovable property of the value of rupees hundred or upwards

(S.54),

2) leases of immovable property from year to year for a term exceeding

one year or reserving a yearly rent (Section 107)

3) simple mortgage irrespective of amount secured (Section 59 ),

4) All other mortgages securing Rs100 or upwards (section 59)

5) Exchange ( section 108)

6) Gift of immovable property (section 123)

7) Transfer of actionable claim (section 130)

F) If on transfer an interest in created in favour of an Unborn person

- under section 13 ,

a) limited interest to be created in favour of living person,

b) Unborn person shall be born before expiry of Limited interest,

c) Once the Unborn person is born, he shall be given absolute interest
on attending the age of majority.

G) The Transfer must not be contrary to the rule against perpetuity

(section 14) -

S.14 provides that vesting cannot be postpond beyond the life of living
person or minority of unborn person. Such transfer if made is void.

H ) Conditional transfer -

If transfer is conditional, the condition must not be illegal, impossible,

immoral or opposed to public policies

Relevant Case Law

1) Sadiq Ali Khan Vs. Jai kishore,1928.

Privy Council observed that a deed executed by a minor was nullity.

Principle of estoppel cannot be applied to a minor. A minor is not
competent to transfer yet a transfer to a minor is valid .

2) Amina Bibi vs Saiyid Yousuf 1922.All. 449.

A contract made by lunatic is void under section 11 of the Indian Contract

Act, and so also, transfer by him of his property is void.

3) K Kamama Vs. Appana

U/s. 11 of Hindu minority and guardianship Act, 1956 a defacto guardian

is merely a manager and cannot dispose off minor's property. In this case
a defacto guardian sold property of a minor, the court declared the sale
invalid.
Introduction

The rule as regards the transfer of property for the benefit of unborn person and the rule
against perpetuity (collectively, the "Rules"), which are mainly governed by sections 13
and 14, respectively, of the Transfer of Property Act, 1882 ("TOPA"), have, since decades,
troubled lawyers of all ages across the country. These Rules are often described as one of
the most complicated legal rules ever.

Where property is desired to be transferred/ bequeathed by any person, to more

generations than one, it is imperative that these Rules are conformed to.

Origin

The origin of rule against perpetuity stems from the days of feudal England as far back as
in 1682 from the case of Duke of Norfolk's, wherein, Henry (the 22nd Earl of Arundel),
tried to create a shifting executory limitation in a way that one of his titles would pass to his
eldest son (who was mentally deficient) and thereafter to his second son, and another title
would pass to his second son and thereafter, to his fourth son. The estate plan also
included provisions for shifting the titles many generations later, if certain conditions were
to occur. It was held by the House of Lords that such a shifting condition could not exist
indefinitely and that the tying up of property too long beyond the lives of people living at
the time was wrong. The concept of trying to control the use and disposition of property
beyond the grave was often referred to as control by the "dead hand". The rule against
perpetuity, in England, was later codified in the form of the Perpetuities and
Accumulations Act, 1964.

Illustrations

With a view to understand the Rules, let us first consider the following five
illustrations:

i. A transfers his property to B (his unborn child).

ii. A transfers his property to B (his child) for life, thereafter to C (his unborn
grandchild) for life and finally, to D (his unborn great grandchild) absolutely.

iii. A transfers his property to B (his child) for life and thereafter to C (his unborn
grandchild) absolutely which property is to vest in C when he attains the age of
twenty one years.

iv. A transfers his property to B (his child) for life, thereafter to C (his unborn
grandchild) absolutely which property is to vest in C upon birth. However, C is
unborn till the time of death of B.

v. A transfers his property to B (his child) for life, thereafter to C (his unborn
grandchild) absolutely which property is to vest in C upon birth. C is born before
the death of B.

From the aforesaid five (5) illustrations, only the transfer sought to be made in
favour of the unborn person in illustration "v" will take effect. The transfers sought
to be made in favour of the unborn person in the remaining illustrations will fail and
not take effect. In order to understand the rationale behind the failure of such
 proposed transfer in favour of an unborn person, it is necessary to understand the
relevant provisions with respect to the Rules.

Rule For Transfer Of Property For The Benefit Of Unborn Person

Section 13 of TOPA provides that:

"Where, on a transfer of property, an interest therein is created for the benefit of a

person not in existence at the date of the transfer, subject to a prior interest
created by the same transfer, the interest created for the benefit of such person
shall not take effect, unless it extends to the whole of the remaining interest of the
transferor in the property."

Rule Against Perpetuity

Section 14 of TOPA provides that:

"No transfer of property can operate to create an interest which is to take effect
after the life time of one or more persons living at the date of such transfer, and
the minority of some person who shall be in existence at the expiration of that
period, and to whom, if he attains full age, the interest created is to belong."

Analysis Of Provisions

Section 13 and 14 of the TOPA go hand in hand, in as much as, section 13 and 14
are to be read together in order to understand the provisions governing the Rules.
The TOPA does not permit transfer of property directly in favour of an unborn
person. Thus, in order to transfer a property for the benefit of a person unborn on
the date of the transfer, it is imperative that the property must first be transferred
in favour of some other person living on the date of transfer. In other words, the
property must vest in some person between the date of the transfer and the
coming into existence of the unborn person since property cannot be transferred
directly in favour of an unborn person. In other words, the interest of the unborn
person must, in every case, be preceded by a prior interest.
Further, where an interest is created in favour of an unborn person on a transfer of
property, such interest in favour of the unborn person shall take effect only if it
extends to the whole of the remaining interest of the transferor in the property,
thereby making it impossible to confer an estate for life on an unborn person. In
other words, the interest in favour of the unborn person shall constitute the entire
remaining interest. The underlying principle in section 13 is that a person
disposing of property to another shall not fetter the free disposition of that property
in the hands of more than one generation.
Section 13 does not prohibit successive interests (limited by time or otherwise)
being created in favour of several persons living at the time of the transfer. What
is prohibited under section 13 is the grant of interest, limited by time or otherwise,
to an unborn person.
Further, Section 14 of TOPA provides that where an interest is created for the
benefit of an unborn person (in accordance with the provisions of section 13),
such interest shall not take effect if the interest is to vest in such unborn
person after the life time of one or more persons living on the date of the transfer
(i.e. the person in whose favour the prior interest is created as required under
section 13) andthe minority of such unborn person. In other words, the interest
 created for the benefit of an unborn person shall take effect only if the interest is to
vest in such unborn person before he attains the age of eighteen years.
Section 14 further provides that the unborn person, in whose favour the interest is
created, must have come into existence on or before the expiry of the life or lives
of the person(s) in whose favour the prior interest is created as required under
section 13.

Other Relevant Provisions

Sections 113 and 114 of Indian Succession Act, 1925 ("ISA"): Sections 113
and 114 of the ISA are almost identical to sections 13 and 14, respectively, of
TOPA. The main difference between the provisions under the ISA and the
provisions under TOPA is that the former deals with bequests which take effect
only on the death of the testator while the latter relate to transfer of property inter
vivos. Section 13 of TOPA controls Section 113 of ISA and both of them are to be
read together, as opined by the Apex Court in Raj Bajrang Bahadur Singh vs.
Thakurain Bakhtraj Kuer (AIR 1953 Supreme Court 7). It was further observed
by the Court that:

"It is quite true that no interest could be created in favour of an unborn person but
when the gift is made to a class or series of persons, some of whom are in
existence and some are not, it does not fail in its entirety; it is valid with regard to
the persons who are in existence at the time of the testator's death and is invalid
as to the rest."

Rules Simplified

The effect of these Rules is that a transfer/ gift can be made to an unborn person
subject to the following conditions: (i) that the transfer/ gift shall be of the whole of
the remaining interest of the transferor/ testator in the thing transferred/
bequeathed and not of a limited interest; and (ii) that the vesting is not postponed
beyond the life in being and the minority of the unborn person.
In simple terms, while section 13 of TOPA lays down the mechanism for transfer
of property for the benefit of unborn person and "what property" is required to be
ultimately transferred in favour of an unborn person in order to validate such
transfer, section 14 of TOPA provides the "maximum period as to when" such
property can be vested upon such unborn person.
Section 14 of TOPA supplements section 13 of TOPA and thus, it is pertinent to
note that when an interest in any property is intended to be transferred in favour of
an unborn person, sections 13 and 14 of TOPA are required to be read together
and the provisions contained thereunder are required to be duly complied with, in
order to give effect to the intended transfer in favour of such unborn person.

Rule against alienability

Section 10 of the Transfer of Property Act: Condition Restraining

Alienation- Where property is transferred subject to a condition or
limitation absolutely restraining the transferee or any person
claiming under him from parting with or disposing of his interest in
the property, the condition or limitation is void, except in the case of
a lease where the condition is for the benefit of the lessor or those
claiming under him:

PROVIDED that property may be transferred to or for the benefit of

a women (not being a Hindu, Muhammadan or Buddhist), so that
she shall not have power during her marriage to transfer or charge
the same or her beneficial interest therein.

Conditional transfers

Every owner of a property, who is competent to transfer, may

transfer his property either unconditionally or with certain
conditions. Conditions are limitations or restrictions on the rights of
the transferees. Transfers which are subject to restrictions are known
as conditional transfers. These conditions may be either conditions
precedent or conditions subsequent. Conditions precedent are put
prior to the transfer and the actual transfer depends upon
compliance of those conditions. Subsequent conditions are those
conditions which are to be fulfilled after the transfer.[xii] These
conditions are those conditions which are to be fulfilled after transfer.
These conditions affect the rights of the transferees after transfer.

This provides that if a property is transferred subject to a condition

or limitation restraining the transferees right of parting with or
disposing his interest in the property absolutely, then such a
condition is void. This general rule is referred to as the rule against
inalienability. The rule against inalienability gives effect to the
overarching principle behind the Transfer of Property Act that,
generally, all property should be transferable. Therefore, any
condition that restrains alienation is considered void. The transferee
can ignore such a condition and continue his enjoyment of the
transferred property as if such a condition did not exist in the first
place.

However, while an absolute restraint is void, a partial restraint may

not be. For instance, a partial restraint that restricts transfers only
to a class of persons is not invalid. However, if the transfer is
restricted to being allowed only to specific individuals, then it is an
absolute restraint and hence, void.

Categorisation of restraints

Since alienation of property is the sole prerogative of the owner of

the property, he is empowered to sell it at any point of time, for any
consideration, to nay person, and for any purpose. There are certain
integral components of the very term alienation and include
selection purely at the discretion of the transferor or the transferee
and the time or consideration for the transfer. A restraint on
alienation, thus would include a condition that dictates to him when
to sell it, to sell it at how much consideration, or how to utilise the
consideration; to whom to sell or for what purpose he should sell.
These restraints can appear in the following ways[xiii]:

Restraints on transfer for a particular time

Restraints directing control over consideration/money;
Restraints with respect to persons/transferee; and
Restraints with respect to sale for particular purposes or use of
property

Absolute restraint
Absolute restraint refers to a condition that attempts to take away
either totally or substantially the power of alienation.[xiv]Section 10
says that where property is transferred subject to a condition or
limitation which absolutely restraints the transferee from parting
with or disposing of his interest in the property is a void condition.
Restraint on alienation is said to be absolute when it totally takes
away the right of disposal. In the words of Lord Justice Fry[xv],
from the earliest times, the courts have always learnt against any
devise to render an estate inalienable.[xvi]

Section 10 relieves a transferee of immovable property from an

absolute restraint placed on his right to deal with the property in his
capacity as an owner thereof. As per section 10, a condition
restraining alienation would be void. Section applies to a case where
property is transferred subject to a condition or limitation absolutely
restraining the transferee from parting with his interest in the
property. For making such a condition invalid the restraint must be
an absolute restraint.

Two persons purchased securities in their own names with the

money belonging to a third person. And on his instructions they
deposited the securities in the name of that person and also the
interest accruing on them in that persons account. The securities
carried the stipulation that they were not to be transferred. In order
to wipe out his liability to another person, that third person
tendered the securities to his creditor by way of satisfaction to hold
them as a beneficiary. It was held that from the very beginning a
beneficial interest was created in favour of the person with whose
monies the securities were purchased and, therefore, his beneficial
interest was transferable because otherwise the whole transaction
would have been hit by section 10.[xvii]
Condition imposing absolute restraint on the right of disposal is a
void condition and has no effect. For example, a person makes a gift
of a property to another person (transferee) with a condition that he
will not sell it. This condition imposes an absolute restraint. If the
transferee sells that property, the sale will be valid because
conditions imposing absolute restraint are void. Amade a gift of a
house to Bwith a condition that if B sold the house during the
lifetime of As wife, she should have an option to purchase it, for Rs.
10,000. The value of the house was Rs. 10,000. This was held to be
having the effect of absolute restraint and was void.[xviii] The
provision of law against absolute restriction on alienation is founded
on the principle of public policy, namely that there should be free
transferability of property. A transfer of property for construction of
a college contained a condition that if the college was not
constructed; the property would not be alienated. Rather it would be
re-conveyed to the person transferring it. The condition was held to
be void and, therefore, not capable of being enforced.[xix]

Where the settler intending to create a life estate in favour of his

son-in-law M, handed over the title-deeds of the said property to
M indicating that he had divested himself of all rights in the property
but imposed absolute perpetual restraint on alienation, it was held
that the restraint was void since the transfer was an absolute
transfer in favour of M. Under the provisions of section 10, the sale
deed made by the heirs of M in favour of appellants was a valid sale
because the heirs were entitled to ignore the restraint on alienation
and deal with the property as absolute owners.[xx]

The condition restraining lessee from alienating leasehold property is

not illegal or void.[xxi]
Partial restraint

Section 10 has only provided for absolute restraints. It is silent about

the partial restraints. Where the restraint does not take away the
power of alienation absolutely but only restricts it to certain extent,
it is a partial restraint. Partial restraint is valid and enforceable. In
words of Sir George Jesel, the test is whether the condition takes
away the whole power of alienation substantially; it is question of
substance and not of mere form. You may restrict alienation in
many ways, you may restrict it by prohibiting it to a particular class
of individuals or you may restrict alienation by restricting it to a
particular time.

A total restraint on right of alienation is void but a partial restraint

would be valid and binding. This rule is based on sound public policy
of free circulation.[xxii]

A restriction for a particular time or to a particular or specified

person[xxiii] has been held to be absolute restriction. A compromise
by way of settlement of family disputes has been held to be valid
in Mata Prasad v Nageshwar Sahai[xxiv], although it involved an
agreement an agreement in restraint of alienation. In this case,
dispute was as to succession between a widow and a nephew.
Compromise was done on terms that the widow was to retain
possession for life while the title of the nephew was admitted with a
condition that he will not alienate the property during the widows
life time. The Privy Council held that the compromise was valid and
prudent in the circumstances of the case.

While an absolute restraint is void, a partial restraint may not be.

For instance, a partial restraint that restricts transfers only to a
class of persons is not invalid. However, if the transfer is restricted to
being allowed only to specific individuals, then it is an absolute
restraint and hence, void. How is it determined if a restriction is
absolute or partial? In order to determine whether a restriction is
absolute or partial, one must look at the substance of the restraint
and not its mere form. Ordinarily, if alienation is restricted to only
family members, the restriction is valid. However, where in addition
to that restriction, a price is also fixed which is far below market
value and no condition is imposed on the family members to
purchase, then the restraint is an absolute one and hence, void,
although in form, it is a partial restraint. Even if such a substantially
absolute restriction is limited by a time period that is, it applies for a
specific time period only, it remains void.

Alienation means transfer of property, such as gifts, sales and

mortgages. 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. Alienation of separate property
by a Hindu, whether governed by the Mitakshara School or any of its
sub-schools or the Dayabhaga School, has full and absolute powers
over it. The Transfer of Property Act governs such alienations.

The distinguishing feature of this power is that it was traditionally

given only to the father or the Karta and that, but the power itself is
near autocratic as it allows them to sell, gift or mortgage the whole
joint family property without the consent of any coparcener, this is
why the ancient texts have specified several conditions which alone
would justify such acts of the manager. These conditions have
changed over the centuries to keep in pace with the changing
conditions and the ancient rules have been modified by the Privy
Council in accordance with the principles of equity, justice and good
conscience.

In this project the subject matter i.e. Alienation has been discussed
under the following heads:

Fathers power of alienation

Kartas power of alienation
Coparceners power of alienation
Sole surviving coparceners power of alienation
Aileens rights and remedies

An effort has been made to list the entire varying viewpoint and
critically analyze them in the light of old traditions and newfound
legal principles. 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

FATHERS POWER OF
ALIENATION
A father possesses more power even than Karta as there are
situations in which only the father has the authority to make
alienation. Under Dayabhaga School, father is provided with the
absolute powers regarding alienation, i.e. he can alienate separate as
well as ancestral property, including movable and immovable on his
wish. As the sons dont get a right over the property by birth under
Dayabhaga School, father doesnt need the consent of his sons for the
purpose of alienation.

Father enjoys an absolute power, which empowers him to alienate

the property even when there are no moral justifications.
In Ramkoomar vs. Kishenkunkar[i], the Sudder Court held that the
gift by a father of his whole estate to a younger son, during the life of
the elder was valid though immoral; however the gift of whole
ancestral landed property was forbidden.

Under Mitakshara Law, while it has been a settled law that the
father had full power disposal of his separate movable property, our
courts held conflicting views as to fathers power of alienation over
his separate immovable properties. The controversy was set at rest
by the Privy Council in1898 in the case of Rao Balwant Singh vs.
Rani Kishori[ii], wherein it held that father had full power of
alienation over his separate property, both movable and immovable.

As regards, Joint or Undivided property it has been held that the

father can alienate undivided joint family property only in the
following two cases:

Gift of Love and Affection

Alienation for discharge of his personal debts

Gifts of Love and Affection

The father has power to make a gift of love and affection of a small
portion of movable joint family property. Such gifts may be made by
him to his own wife, son-in-law, daughter etc.

Two gifts are necessary for that validity of such gifts:

 1. It should be a gift of love and affection, i.e., father should stand
in some relationship of affection to donee.
2. The gift should be of a small portion of movable joint family
property.

In the case of Basho vs. Mankore Bay[iii], a gift made to the daughter
of Rs.20000 was held by the Privy Council to be valid as the total
value of the estate was 10-15 lakhs.

In the case of Subbarami vs. Rammamma[iv]an important principle

was laid down that such gifts cannot be made by a will, since as soon
as a coparcener dies, he loses his interest in the joint property, which
he cannot subsequently alienate.

Gifts of Immovable Property

Such gifts cannot be made of immovable property, though

in Guramma v. Malappa[v], a gift of immovable property to
daughter made by father after her marriage was held to be valid.

It is submitted that gifts of love and affection of immovable property

cannot be made to sons, or for that matter to any member of joint
family. Supreme Court has confined this rule of gifts of immovable
property to daughter only.

Alienation for Discharge of his Personal Debts

Father has the power to alienate the family property for the
discharge of his antecedent debts, which not being immoral or illegal,
the sons are under a pious obligation to discharge.

Father can alienate family property to pay his personal debts if the
following two conditions are fulfilled-
 1. The debt is antecedent.
2. The debt should not be Avyavaharik i.e. for unethical or
immoral purposes.

The above two rules though derived from ancient Mitaksharatext

was also laid down in the case of Brij Narain vs. Mangla Prasad[vi].

KARTAS POWER OF ALIENATION

Although no individual coparcener, including Karta has any power to
dispose of the joint family property without the consent of all other,
it is a recognized concept by the dharamshatra that in certain
circumstance, any member of family has power to alienate the joint
family property.

Vijnaneshwara recognized three exceptional cases in which alienation

of the joint family property could be made by the Karta:

Legal Necessity (this includes Vijnaneshwaras Apatkale as well

as a part of Kutumbarthe, i.e., for the sake of members family.)
Benefit of estate (this includes the other part of Kutumbarthe,
i.e., for the sake of family property.)
Acts of indispensable duty (this includes the entire head of
Dharamarthe.)

However, the Karta may alienate the joint family property

irrespective of legal necessity or benefit of the estate with the consent
of all adult coparceners in existence at the time of such alienation.
Here again, there is a difference in the law prevailing in different
states as to the position in case the alienation is consented to only by
some of the coparceners and not by all. As per the law in Bombay
and Madras, the shares of the consenting coparceners would be
bound. However, in West Bengal and Uttar Pradesh, a coparcener
cannot alienate even his own interest without the consent of all other
coparceners and hence such alienation without the consent of all
coparceners would not even bind the shares of the consenting
members.

LEGAL NECESSITY

Broadly speaking, legal necessity will include all those things which
are deemed necessary for the members of the family. The term
Apatkale under Vijnaneshwara may indicate that joint family
property can be alienated only in time of distress such as famine,
epidemic, etc. and not otherwise, however, it has been recognized
under the modern law that necessity may extend beyond that. In
Devulapalli Kameswara Sastri vs. Polavarapu Veeracharlu[vii], it was
held that necessity should not be understood in the sense of what is
absolutely indispensable but what according to the notions of the
joint Hindu family would be regarded as proper and reasonable[viii].
Thus, Legal Necessity doesnt mean actual compulsion; it means
pressure upon estate which may in law may be regarded as serious
and sufficient. If it is shown that familys need was for a particular
thing and if property was alienated for the satisfaction of that
particular need, then it is enough proof that there was a legal
necessity. The following have been held to be family necessities.

Maintenance of all the members of the Joint Hindu family,

expenses for medical care for the members.
Payment of government revenue and government taxes and
duties like income tax.
Payment of debts incurred for family necessity or family
business or decretal debts
 Performance of necessary ceremonies, sradhs and upanyana.
Marriage expenses of male coparceners, and of the daughters
of coparceners.
Payment of debts incurred for family business or other
necessary purpose.
Costs incurred for the defense of the head of the joint family or
any other member involved in a serious criminal charge.

PARTIAL NECESSITY
In Krishandas vs. Nathuram[ix], Privy council held that where the
necessity is only partial, i.e., where the money required to meet the
necessity is less than the amount raised by alienation, in such a case,
the sale will be valid only where the purchaser acts in good faith and
after due inquiry and is able to show that the sale itself is justified by
legal necessity.

In the instant case, alienation was for Rs. 3500, and the alienee was
able to prove the legal necessity for Rs.3000, the alienation was held
valid.

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.

BENEFIT OF ESTATE
An alienation of joint family property can be effected for the benefit
to estate also. There is also a lack of unanimity as to the
interpretation of the words, as for the benefit of the estate.
The courts have not given a set definition of this concept,
undoubtedly so that it can be suitably modified and expanded to
include every act which might benefit the family.

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[x]. In this case the judges observed No indication is
to be found in any of them(ancient texts) as to what is, in this
connection, the precise nature of things to be included under the
descriptions benefit to the estate The preservation however of the
estate from extinction, the defense against hostile litigation affecting
it, the protection of it or portions from injury or deterioration by
inundations, there and such like things would obviously be
benefits[xi]

The Privy Council has elaborately illustrated as to what are the

incidents of benefit to estate in Palaniappa v. Devsikmony[xii], it laid
down that the preservation, however, of the estate from
extinction, the defense against the hostile litigation affecting it, the
protection of it or its portion from injury or deterioration by
inundation, these and such like things would obviously be the benefits.
In broad sense legal necessity includes benefit to estate.

CONFLICT OF JUDICIAL OPINION

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. According to one view, only that will be a benefit of estate
which is of a defensive character, i.e., which is done to avert an
eminent danger to the property. 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.

The Supreme Court later added its own observation as to what

constitutes benefit, in the case of Balmukund vs. Kamlawati &
Ors[xiii];

for the transaction to be regarded as for the benefit of the family it

need not be of a defensive character. 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.

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[xiv].
Therefore, the Karta, as prudent manager can do all those things
which are in furtherance of familys advancement or to prevent
probable losses, provided his acts are not purely of a speculative or
visionary character[xv].

Differing from Allahabad High Court, a full Bench of Mumbai High

Court in Hem raj vs. Nathan[xvi] took an intermediate view and held
that property cannot be alienated merely for the purpose of
enhancing its value, though, at the same time, it would not be
correct to say that no transaction can be for the benefit of estate
which it is not of a defensive character.

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[xvii], when a land yielding no profit
was sold and a land yielding profit was purchased the transaction
was held to be for benefit.

In Gallamudi vs. Indian Overseas Bank[xviii], when a alienation was

made to carry out renovations in the hotel which was a family
business, it was held to be for benefit.

Indispensable Duties

The third ground upon which the authority of the Karta to alienate
joint Family property rests, is where indispensable requires it. The
term indispensable duties, implies the performance of those acts
which are religious, pious or charitable[xix].Vijnaneshwara gave one
instance of Dharmamarthe, viz., obsequies of the father and added
or the like. 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. Apart from
such indispensable ceremonies, gift within reasonable limit can be
made for pious purposes, for ex; a small portion of property can be
alienated for a family idol or to an idol in a public temple.

The major case in this regards is that of Gangi Reddi vs. Tammi
Reddi[xx], 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 also lays down the principle that the
alienation should be made by the manager inter vivos and not de
futuro by will[xxi].
BURDEN OF PROOF
In the landmark case of Hanoomaprasad vs. Babooee[xxii], it has
been held that the burden of proof whether the transaction is for
legal necessity, benefit or for indispensable duty, is on alienee.

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. It is not necessary for him
to show that every bit of consideration which he advanced was
actually applied for meeting legal necessity. In short the onus may be
discharged by the alienee by:

1. Proof of actual necessity or,

2. By proof that he made proper and bonafide 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.

COPARCENERS POWER OF
ALIENATION
The subject may be divided under two heads:

1. Involuntary Alienation.
2. Voluntary Alienation.

Involuntary Alienation
Involuntary Alienation means the Alienation of the undivided
interest in execution proceedings. In 1873, the Privy Council settled
the law by holding that the purchaser of undivided interest at an
execution sale during the life of debtor of his separate debt acquires
his interest in such property with the power of ascertaining and
realizing it by partition. The limitation of this rule is that such a
decree cannot be executed against a coparcener after his debt. But if
his interest has been attached during his lifetime, it can be sold in
court sale after his death.

Voluntary Alienation

Once it was accepted that the undivided interest of a coparcener can

be attached and sold in execution of money decree against him, it
was the next logical step to extend the principle to voluntary
alienation. When the owner of property transfers it willingly, it is
voluntary alienation. When a coparcener can be forced to do, he
should also be permitted to do it himself, and somehow the principle
was extended to voluntary alienations.

Voluntary Alienation may be made in following forms:

Gifts

It is a well-settled law that the gift by a coparcener in Mitakshara

family of his undivided interest is wholly invalid. A coparcener
cannot make a gift of his undivided interest in the family property
either to a stranger or to a relative except for purposes warranted
under special texts. In Radhakant Lal vs. Nazma Begum[xxiii], gifts of
a part of joint family estate made by a Hindu in favor of two of his
concubines in the daughter of one of them was held to be invalid as
against his sons and grandsons even in respect of his own
interest[xxiv].

Sale and Mortgage

According to Bombay, Madras and Madhya Pradesh High Courts, a

coparcener has the power to sell mortgage or otherwise alienate his
undivided interest without the consent of other coparceners. In the
rest of Mitakshara jurisdiction, such alienation is not permitted and
a coparcener has no power to alienate hid undivided interest by sale
or mortgage, without the consent of other coparceners[xxv].

Renunciation

A coparcener has power to renounce his share in the joint family

property. A gift by a coparcener of his entire undivided interest in
favour of other coparcener or coparceners will be valid whether it is
regarded as one made with the consent of one or others or as a
renunciation in favour of all. Renunciation with a condition to pay
maintenance to him is valid. But a gift or renunciation of his share by
one coparcener in favour of his one of several coparceners is not
valid.

In Alluri Venkatapathi Raju vs. Venkatnarasimha Raju[xxvi], Privy

Council held that, a coparceners renunciation of his interest merely
extinguishes his interest in the joint estate and its only effect is to
reduce the number of persons to whom shares will be allotted if and
when a division of the estate takes place.

Sole Surviving Coparceners Power of

Alienation
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 doesnt have a son, with the only duty on him being
that of maintenance of the female members (the widows) of the
family.

Thus barring the share of the widows he can alienate the other
property as hisseparate property. However this is not valid if another
coparcener is present in the wombat the time of the alienation. But
if the son is born subsequent to the transaction then hecannot
challenges the alienation.

In case a widow adopts a child after the death of her husband, will
such a child challenge the alienation, i.e. can the doctrine of relation
back be applied in such cases. The Mysore High Court in the case
of Mahadevappavs. Chandabasappa[xxvii] held that such a child can
actually challenge the alienation made by the sole surviving
coparcener as hell have an interest in the joint family property. This
is in contrast with the stance taken by the Bombay High Court in the
cases of Bhimji vs. Hanumant Rao[xxviii] and Babrondavs.
Anna[xxix]where it was held that subsequently adopted son cannot
divest a sole surviving coparcener of his right over the joint property
and hence cannot challenge any alienation made by him.

Coparceners Right to Challenge Alienation

If the father, Karta, coparcener or sole surviving coparcener

oversteps their power in making the alienation, it can be challenged
and set aside by any other coparcener who has an interest in the
property, from the time he comes to know of it till the time the suit
is barred due to limitation.
Art 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, Art 144 gives the period for alienation made by Karta
as 12 years, in case of mere declaration the period is 6 years.

The burden of proof is on the alienee to prove that it was for a valid
purpose. It has been laid down that in case the alienation is made by
the father for the payment of his debts, then the burden of proof is
on the alienation to prove that he had taken sufficient care to
determine that it was for the payment of debt. The sons can rebut
this assumption only by proving that the debt was Avyavharik i.e.
immoral, in such a case the burden of proof that the debt was
tainted is on the son.

Alienation in case of Legal Necessity

In Hunooman Persauds case it has laid down that in case the

alienation was made by Karta for a legal necessity it is again for the
alienee to prove that he took sufficient care in finding out if the
transaction was for necessity or no, however once it was proved that
he had taken due care, the actual presence or absence of such a
necessity is irrelevant.

The Honble Supreme Court in Sunil Kumar vs. Ram

Prakash[xxx] held that a coparcener has no right to obtain a
permanent injunction against the Karta to prevent him from
Alienation of joint family property since he has the remedy of
challenging the same.

Alienation without Necessity Void or Voidable

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.

The debate was put to rest by the Supreme Court in the case of R.
Raghubanshi Narain Singh vs. Ambica Prasad[xxxi], where it was
held that alienation made without legal necessity is not void but
merely voidable.

Existing Coparceners Right to Challenge Alienation

It is a settled law that an improper Alienation can be challenged by

all or anyone of the coparceners existing at the time of alienation.

In Bombay and Madras, when an alienation is challenged by the

coparcener, it will be set aside only to the extent of their interest in
the joint family property. As under these schools coparcener has
power of alienating his undivided interest by sale or mortgage.

In case of suits filed by the coparceners, Madras High Court has given
some vital rules:

In the case of Permanayakam vs. Sivaramma[xxxii], where it was

held that

1. If the alienation is made only for partial necessity, it may be

set aside.
2. If alienation is only a device for distinguishing a gift, the other
coparceners dont lose interest in the property or survivorship
rights.
Finally, it was laid down in the case of Sunil Kumar vs. Ram
Prakash[xxxiii] that a coparcener cannot ask for an injunction
against alienation on the ground that it is not for legal necessity.

Coparcener who was in the womb at the time of alienation;

Since under Hindu Law, a son conceived is, in many respects, equal
to a son born, a coparcener who is in the womb of his mother at the
time of alienation can get the alienation set aside after his birth.

After born Coparcener:

In Shivaji v. Murlidhar[xxxiv], it has been that an alienation made by

a father who has male issues and before all the sons die another son is
born to him, then even after the death of all the sons existing at the
time of alienation, the subsequently born son can challenge the
alienation provided the right is not barred by limitation. The
overlapping of lives give 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.

Adopted son:

Commissioner of gift tax vs. Tejanath[xxxv], 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.

ALIENEES RIGHTS AND

REMEDIES
Kartas Alienation
In case the alienation is valid then there would be no problem as the
alienee would automatically get all the rights of a mortgagee against
the mortgager.

However if the alienation is pronounced as invalid his situation is

very unclear-In the states of Maharashtra, Madhya Pradesh and
Madras where the alienation is set aside only to the extent of
non-alienating coparceners share, there is no equity entitling the
alienee to a refund of proportionate part of purchase money in
respect of those shares.

In the case of Narayan Pd vs. Sarmam Singh[xxxvi], the Privy

Council held that in states where alienation can be totally set aside,
the alienee would have no equity against his purchasing amount.

In the case of Hasmat v. Sundar[xxxvii],the Calcutta High Court said

that if the alienation made by the father was set aside, then the sum
becomes the debt of the father which has to be paid by the sons,
hence they cannot set aside the alienation without refunding the
purchasing price, however this decision has been criticized as this
principle is violative of the antecedent rule.

Coparceners Alienation and the Alienee

Where the sale of coparcenary property or an interest therein is

within the authority of the alienor, it cannot be set aside and the
alienee gets certain rights in respect of that property. If the whole of
the coparcenary property is sold, the position of the vendee is
governed by the general law. He is full owner of the property,
entitled to the possession thereof and to the ejectment of the
members of the joint family. No question of Hindu law arises here.
But where a person purchases an undivided interest of a coparcener
in the joint family property, some important issues of personal
Hindu law crop up. Here ordinarily the rule of Hindu law is that the
vendee whether at a private sale or at an auction sale by court
stands in the shoes of vendor, but it does not mean that he becomes
a member of joint family property like his vendor

When translated into practice this yields him the following rights:

Right to Partition

It is now a settled law that an alienee has a right to partition and

carve out his share. If a coparcener alienates his interest in the joint
family property in some specific property, can the alienee file a suit
for the partition to specific property only and not for the general
partition? There is difference in opinion among various high courts
on the issue:

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.
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.

But on the other hand, the Allahabad and Calcutta High Courts hold
that there is no need for a general partition. The purchaser can ask
for partition of the interest of the alienor in the specified property
purchased by him. The reason for partial partition is that a
purchaser cannot institute a suit for partition in respect of property
in which he has no interest at all. The non-alienating coparcener can
also sue the purchaser for the partial partition of the property
transferred. He need not ask for general partition.

It has been held that the purchaser can demand partition not only
during the lifetime of the vendor but also after his death.

Right to Mesne Profits

It is now a settled law that an alienee is not entitled to the mesne

profit on the property from the day of the purchase till the day of
the partition suit is decreed. In Sidheshwar Mukherjee v.
Bhubneshwar Prasad Narainsingh[xxxviii], 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.

Alienee takes the properties subject to equities

The alienee of coparceners joint family interest will take the

property subject to all charges, encumbrances and liabilities attesting
the joint family property or the interest of the coparcener.

Right to impeach previous alienation

The purchaser of a coparcenary property in a transaction of sale

which is authorized can challenge the earlier alienation which was
not authorized. This happens in three cases:

When he inherits the property of a coparcener by

testamentary or intestate succession
 When the property alienated without an authority is later on
alienated with authority to a different person, the later alienee
can challenge the earlier alienation. This right is given to him
for the purpose of protecting the interest he has acquired.
A purchaser in an execution sale of the coparcenary property
which had already been alienated without authority can
challenge the earlier alienation[xxxix].

Right of Joint Possession

On the question whether the alienee has a right of joint possession of

specific property alienated to him before he seeks patition, the law is
not well-settled, different High Courts having expressed conflicting
views on the point.

The position under law may be summarized as under:

According to Madras High Court, as the purchaser from a

coparcener is not a tenant in common with the coparceners in
the family, he is not entitled to joint possession or to mesne
profits with other coparceners. The rule holds good both at
private and court sales. However, in case, the alienee has
obtained possession, the other coparceners have the right to
sue for the recovery of possession of the entire property.
The Bombay high Court takes a different view. The court has in
the case of Bhau vs. Budha Manaku[xl], laid down three
principles as regards the above question in debate.

1. If the purchaser is a stranger and has not obtained

possession, he cannot be given possession with the other
coparceners but should left to his remedy of a suit for
partition.
 2. If the alienee has obtained possession, the alienating
coparceners are entitled to joint possession with him. Or,
it is open to them to sue for recovery of possession of the
whole joint property.

The purchaser in possession need not be ejected in a suit for

recovery of possession brought by an excluded coparcener, but
can be declared entitled to hold(pending a partition) as a
tenant- in-common with the other coparceners.

When two stranger purchase property from different

coparceners of the joint family, they cannot claim joint
possession if the property.
When there exists a valid contract for alienation of joint family
property, the alienee can sue for specific performance of the
contract.

The issue came to be discussed by Supreme Court in M.V.S.

Manikayala Rao v. M. Narasimhaswami[xli], wherein the court held
that it is well settled that a purchaser in such a case cannot claim to
be put in joint possession with the other coparceners. He has only the
right to ask for general partition of the joint property.

RIGHT TO SHARE IN PARTITION

As a general rule, the alienee in a suit for partition to work out his
right cannot claim that the specific properties that were alienated to
him should be allotted to his share. But he has an equitable claim and
ordinarily the court may assign that very property to his share if it
could be done without injustice to other coparceners.
However, in case the court does not allot hi that property, the
question arises can he have something else in substitution of the
property alienated to him? This is known as the substituted
security. The Courts have recognized that this can be done. This
principle was laid down in the case of Padmanabh v.
Abraham[xlii] which said that though it would be in all fairness kept
in mind that the alienee is given the share he has purchased but he
could be given other share if it causes injustice to the other
coparceners. It must be noted that this is in accordance with the
Mitakshara principle that no member has a right without express
agreement to claim a specific portion as his; same applies to the
alienee as he steps into the shoes of the coparceners. Poti,
J. in Venkatammal vs. Simma[xliii], observed that the doctrine of
substituted security will be applicable not only when the undivided
share of a coparcener in all the items of the coparcenary property or
the undivided share of a coparcener in all the items owned jointly, is
alienated, but also when specific item of property is alienated by such
coparcener and ultimately it is found that the alienating coparcener
is allotted some other item in partition. The doctrine will apply
irrespective of the question whether the right of coparcener is
transferred by private sale or by court.