Family Law-II
Content
NATIONAL LAW INSTITUTE UNIVERSITY
FAMILY LAW- II
A Project On:
POWER OF ALIENATION OF COPARCENARY
PROPERTY OF THE KARTA: LEGAL NECESSITY
SUBMITTED TO:
SUBMITTED BY:
AKSHEY JOSE
DEBASHREE SARKAR
2013 B.A.LLB 39
ASSISTANT PROFESSOR
Contents
The Problem................................................................................................................................. 3
Aims............................................................................................................................................ 3
Introduction ................................................................................................................................. 3
Manager or Karta ...................................................................................................................... 4
Alienation of coparcenary for legal necessity.................................................................................. 4
Legal Necessity ........................................................................................................................ 6
Alienation by Manager for Benefit of Estate ................................................................................... 6
Burden of Proof of Necessity ..................................................................................................... 7
Money raised on Mortgage applied only in part for the purposes of Legal Necessity...................... 8
Alienation for the purposes of Family Business .............................................................................. 9
Satish Kumar v. Sat Prakash........................................................................................................ 10
Bibliography .............................................................................................................................. 12
2|P a g e
The Problem
No coparcener has the right to alienate the coparcenary property out of his own sweet will but
the karta has been given the power to alienate the coparcenary property in certain instances.
Thus, this is exception to the general powers of a coparcener.
Aims
1- To research into the situations in which a karta can alienate the coparcenary property.
2- To analyse the extent to which the karta can exercise such power for legal necessity.
Introduction
Only a coparcener is competent to alienate a coparcenary property. Further only the following
coparceners can alienate coparcenary property1- The whole body of coparceners, where they are adults.
2- The manager or karta of the joint family
3- The father
4- A sole surviving coparcener
The right of alienation is subject to restrictions in the last three cases. No other coparcener is
entitled to alienate coparcenary property so as to bind the other coparceners unless he is
authorised by them to do so.
3|P a g e
Manager or Karta
Property belonging to a joint family is ordinarily managed by the father or other senior
member of the family. The manager of the joint family is called karta.
In the case Pandurang v. Pandurang 1947 Nag 299, the Court held that a mother, in absence
of adult male member, was competent to act as manager of the family. Her acts as the karta of
the family for legal necessity or for benefit of estate would be binding on the joint family.
The manager or karta has the following powers1- To control the income and expenditure of the joint family property.
2- To account on partition of coparcenary property.
3- To contract debts for family purpose and family business.
4- To alienate coparcenary property for legal necessity or benefit of estate.
Alienation of coparcenary for legal necessity
The karta of the Hindu joint family has the power to alienate joint family property so as to
bind the interest of both adult and minor coparceners in the property, provided the alienation
is made for legal necessity. Where a joint family consists of adults and minors, the mere fact
that all the adult male members including the manager have consented is not proof of legal
necessity.
When an alienation is made by the manager without legal necessity but with consent of all
other coparceners, the alienation is valid in its entirety. An alienation by a manager of joint
family without legal necessity is not void but voidable at the instance of the other
coparceners.
4|P a g e
Hunooman Persaud v. Mussumat Babooe1
The Privy Council in this case held that“The power of the manager for the infant heir to charge an estate not his own is under the
Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or
for the benefit of the estate. However where in the particular instance, the charge is one that
a prudent will make, in order to benefit the estate, the bona fide lender is not affected by the
precedent mismanagement of the estate. The actual pressure on the estate, the danger to be
averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be
regarded.”
The Lordships further held that the lender is bound to inquire into the necessity for the loan
and to satisfy himself as well as he can, with reference to parties with whom he is dealing,
that the manager is acting in the particular instance for the benefit of estate. However, if he
does so inquire and acts honestly, the real existence of an alleged sufficient and reasonably
credited necessity is not a condition precedent to the validity of his charge then under the
circumstances he is not bound to see the application of money.
The issue in the present case was regarding the extent of the power of a mother as a manager
of the state of her minor son, to alienate the estate. The case related to a mortgage created by
the mother. The principles laid down in this case were1- The manager of a joint family acting on behalf of minor members of the family.
2- A Hindu widow and other limited heirs of the property inherited by them from males.
3- Managers of religious endowments.
4- Mangers of estates of lunatics.
1
(1856) 6 MIA 393
5|P a g e
Legal Necessity
The following come within the meaning of legal necessity1- Payment of government revenue and of debts which are payable out of the family
property.
2- Maintenance of coparceners and of members of their families.
3- Marriage expenses of male coparceners and daughters of coparceners.
4- Performance of the necessary funeral or family ceremonies.
5- Costs of necessary litigation in recovering or preserving the estate.
6- Costs for defending the head of the family or any other member against serious
criminal charge.
7- Payment of debts incurred for family business or other necessary purpose.
Gift of a small portion of property for educational purposes is not legal necessity. The selling
by the karta or manager for the purpose of migrating to a new place for a better living has
been held to be a sale for legal necessity. 2
Alienation by Manager for Benefit of Estate
There was a conflict of opinion as to the meaning of the words ‘for the benefit of the state’
which occur in the judgement of the judicial committee in Hunooman Prasad’s case.
One view was that a transaction cannot be said to be for the benefit of estate, unless it is of
defensive character calculated to protect the estate from some threatened danger or
destruction.
Another view was that for a transaction to be for the benefit of estate, it is sufficient, if it is
such as a prudent owner would have carried out with the knowledge available to him at the
time of the transaction.
2
Vanimisatti v. Jayavarapu AIR 1995 AP 105
6|P a g e
The first authoritative exposition of the expression ‘for the benefit of estate’ is to be found in
Palanippa v. Deivaskamon.3 The question in this case was as to the power of the mahant to
alienate debutter land. The judicial committee observed:
“No indication is to be found in any of them as to what is, in this connection, the precise
nature of the things to be included under the description ‘benefit of estate’. It is impossible to
give a precise definition of it applicable to all cases and they do not attempt to do so. The
preservation of the estate though, from extinction, defence against hostile litigation, would
obviously be benefits.”
The manager of the joint family is not entitled to sell the joint family land solely for the
purpose of so investing the price of it as to bring in an income larger than that derived from
the probably safer and certainly more stable property, ie- the land itself. A mortgage of a
family property for the purposes of solely purchasing another property is not for bene fit of
estate. A sale of a joint family property which is inconveniently situated and is unproductive,
the purchase money being invested in another property which is a sound investment is for
benefit of estate. A mortgage or a sale solely for the purposes of pr-empting another property
is not a sale for the benefit of estate.
A gift by the manager of a joint family of a small portion of zamindari land purchased by him
to a stranger, with the object of defeating a claim for pre-emption was held to be transaction
for the benefit of the family and therefore binding on the family. 4
Burden of Proof of Necessity
Where the manager of a joint Hindu family sells or mortgages joint family property, the
purchaser or mortgagee is bound to inquire into the necessity for the sale or mortgage, and
the burden lies on the purchaser or mortgagee to prove either that there was a legal necessity
in fact, or that he made proper and bonafide enquiry as to the existence of such necessity or
did all that was necessary to satisfy himself as to the existence of such a necessity.
3
4
(1917) 44 IA 147
Mohib Ali khanv. Baldeo Prasad (1939) All 305
7|P a g e
The existence of necessary purpose is not the same as a legal necessity as there may be large
resources, a large income making loans unnecessary. The lender must show neces sity for the
loan. If the purchaser or mortgagee proves that there was a legal necessity, in fact, the
alienation will be upheld, even though the necessity was brought about by the previous
mismanagement of the manager, unless it is shown that the previous mismanagement was
contributed to by the purchaser or mortgagee himself.
Money raised on Mortgage applied only in part for the purposes of Legal Necessity
If the sale itself is not justified by legal necessity, and the purchaser pays a fair price for the
property sold, and acts in good faith and after due inquiry as to the necessity for the sale, the
mere fact that the part of the price is not proved to have been applied to purposes of necessity
would not invalidate the sale, the purchaser not bound to see the application of the money.
Sri Nath v. Jagannath5
There was a sale for Rs. 6,000 which was a fair price but the amount proved to have been
applied for the purposes of legal necessity was only Rs. 3,281 and there was no evidence of
any enquiry having been made by purchaser as to the necessity for the loan. It was held that
the sale itself was not one which was justified by legal necessity for the loan, it was held that
the sale itself should be set aside conditionally on payment by the plaintiffs of Rs. 3281 to the
purchaser.
If the sale is completed at a time when the property was deprived of all its value as absolvent
of the financial difficulties the sale should be set aside but if the purchase money has been
applied by the manager in the payment of the family debt, the purchaser should have full
benefit of the mortgage.
5
(1931) 52 ALL 391
8|P a g e
Alienation for the purposes of Family Business
The power of a manager to carry on family business necessarily implies a power to mortgage
or sell the family property for a legitimate and proper purpose of business. An alienation so
made is bonding upon family property including interests of minor coparceners therein.
Further, the manager has the authority to raise money not only to discharge debts arising out
of family business but also for the money needed to carry on the trade. It is a matter of
decision whether the money necessary should be raised b y mortgage or by a sale, and
whether it was better to raise money to continue a business, which of late had not been
profitable, or to close it down it would be unreasonable to expect a lender or purchaser to
investigate questions of that kind. If the lender or purchaser acted honestly and with due
caution and made reasonable inquiries which led him to believe that a sufficient and real
necessity for the raising of the money for the purposes o f the family business did exist and he
is not bound to see the application of money.
Where the alienation was made by the manager who was blind and deaf and practically all the
money which had been disallowed by the High Court had been borrowed by the fourth and
fifth defendants who were the eldest members of the family and the manager’s right hand
men, their conduct not giving evidence and remaining as defendants, while causing their sons
to file questioning the alienation was held by their Lordships of the Privy Council to be
strong corroborative evidence of legal necessity.
A mortgage by the manager for enlarging a family business by the purchase of fresh stocks is
binding on the family property including the interest of the minor coparceners there in,
provided the transaction is one which a prudent owner would enter into having regard to all
the circumstances of the case.
Where the family is a trading family e.g. - Kayasthas, who have been known to carry on
business throughout generations as a means of livelihood, in such cases the karta has the right
to alienate coparcenary property for the purposes of such a business without existence of any
legal necessity or benefit of estate as here the business is the only means of livelihood.
9|P a g e
Satish Kumar v. Sat Prakash
C.M. No. 22051-CII of 2009 and Civil Revision No. 3377 of 2009 (O and M)
High Court of Punjab & Haryana
Decided on: 18/09/2009
Issue before the Court:
“Whether an injunction could be granted against Karta of joint family property restraining
him from alienating the same without legal necessity?"
Contentions:
The plaintiff being the son claiming himself to be the coparcener has instituted a suit
restraining the defendant (father) from alienating, mortgaging or disposing of the suit
property, on the allegations that the same was ancestral coparcenary and joint Hindu family
property; the plaintiff being the coparcener had birth right in it, as such, the defendant could
not alienate the same without legal necessity. During the pendency of the suit, the plaintiff
sought temporary injunction against alienation.
Both the parties have placed reliance on the judgment delivered in case Sunil Kumar v. Ram
Parkash6 , in order to press their rival contentions. The intent and purport of the judgment
was to avoid interference of the coparceners in the bonafide acts of the karta in dealing,
transferring, mortgaging or otherwise disposing of the property for legal necessity, benefit
and welfare of the estate. Thus, in order to seek injunction the plaintiff coparcener was to
make out a case that the property was being thrown away by the defendant-Karta.
Judgment:
Injunction not granted on the grounds of no case of defendant-karta throwing away property
made out.
6
AIR 1988 SC 576
10 | P a g e
Conclusion
Thus it can be seen that the karta of a family or a father can alienate the coparcenary property
only if there exists a legal necessity or he can do so for the benefit of estate. He may also
alienate it for the furtherance of the family trade and such an alienation would be binding on
the minor coparceners though, there is an onus on the karta to prove the existe nce of the
above mentioned grounds. But in no circumstance can a karta alienate the coparcenary
property for his own benefit unless he has consent of all the coparceners or he is the sole
surviving coparcener.
11 | P a g e
Bibliography
Book Sources
Hindu Law, Mulla
Family Law Material
Internet Sources
www.manupatra.com
www.indiakanoon.org
12 | P a g e
FAMILY LAW- II
A Project On:
POWER OF ALIENATION OF COPARCENARY
PROPERTY OF THE KARTA: LEGAL NECESSITY
SUBMITTED TO:
SUBMITTED BY:
AKSHEY JOSE
DEBASHREE SARKAR
2013 B.A.LLB 39
ASSISTANT PROFESSOR
Contents
The Problem................................................................................................................................. 3
Aims............................................................................................................................................ 3
Introduction ................................................................................................................................. 3
Manager or Karta ...................................................................................................................... 4
Alienation of coparcenary for legal necessity.................................................................................. 4
Legal Necessity ........................................................................................................................ 6
Alienation by Manager for Benefit of Estate ................................................................................... 6
Burden of Proof of Necessity ..................................................................................................... 7
Money raised on Mortgage applied only in part for the purposes of Legal Necessity...................... 8
Alienation for the purposes of Family Business .............................................................................. 9
Satish Kumar v. Sat Prakash........................................................................................................ 10
Bibliography .............................................................................................................................. 12
2|P a g e
The Problem
No coparcener has the right to alienate the coparcenary property out of his own sweet will but
the karta has been given the power to alienate the coparcenary property in certain instances.
Thus, this is exception to the general powers of a coparcener.
Aims
1- To research into the situations in which a karta can alienate the coparcenary property.
2- To analyse the extent to which the karta can exercise such power for legal necessity.
Introduction
Only a coparcener is competent to alienate a coparcenary property. Further only the following
coparceners can alienate coparcenary property1- The whole body of coparceners, where they are adults.
2- The manager or karta of the joint family
3- The father
4- A sole surviving coparcener
The right of alienation is subject to restrictions in the last three cases. No other coparcener is
entitled to alienate coparcenary property so as to bind the other coparceners unless he is
authorised by them to do so.
3|P a g e
Manager or Karta
Property belonging to a joint family is ordinarily managed by the father or other senior
member of the family. The manager of the joint family is called karta.
In the case Pandurang v. Pandurang 1947 Nag 299, the Court held that a mother, in absence
of adult male member, was competent to act as manager of the family. Her acts as the karta of
the family for legal necessity or for benefit of estate would be binding on the joint family.
The manager or karta has the following powers1- To control the income and expenditure of the joint family property.
2- To account on partition of coparcenary property.
3- To contract debts for family purpose and family business.
4- To alienate coparcenary property for legal necessity or benefit of estate.
Alienation of coparcenary for legal necessity
The karta of the Hindu joint family has the power to alienate joint family property so as to
bind the interest of both adult and minor coparceners in the property, provided the alienation
is made for legal necessity. Where a joint family consists of adults and minors, the mere fact
that all the adult male members including the manager have consented is not proof of legal
necessity.
When an alienation is made by the manager without legal necessity but with consent of all
other coparceners, the alienation is valid in its entirety. An alienation by a manager of joint
family without legal necessity is not void but voidable at the instance of the other
coparceners.
4|P a g e
Hunooman Persaud v. Mussumat Babooe1
The Privy Council in this case held that“The power of the manager for the infant heir to charge an estate not his own is under the
Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or
for the benefit of the estate. However where in the particular instance, the charge is one that
a prudent will make, in order to benefit the estate, the bona fide lender is not affected by the
precedent mismanagement of the estate. The actual pressure on the estate, the danger to be
averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be
regarded.”
The Lordships further held that the lender is bound to inquire into the necessity for the loan
and to satisfy himself as well as he can, with reference to parties with whom he is dealing,
that the manager is acting in the particular instance for the benefit of estate. However, if he
does so inquire and acts honestly, the real existence of an alleged sufficient and reasonably
credited necessity is not a condition precedent to the validity of his charge then under the
circumstances he is not bound to see the application of money.
The issue in the present case was regarding the extent of the power of a mother as a manager
of the state of her minor son, to alienate the estate. The case related to a mortgage created by
the mother. The principles laid down in this case were1- The manager of a joint family acting on behalf of minor members of the family.
2- A Hindu widow and other limited heirs of the property inherited by them from males.
3- Managers of religious endowments.
4- Mangers of estates of lunatics.
1
(1856) 6 MIA 393
5|P a g e
Legal Necessity
The following come within the meaning of legal necessity1- Payment of government revenue and of debts which are payable out of the family
property.
2- Maintenance of coparceners and of members of their families.
3- Marriage expenses of male coparceners and daughters of coparceners.
4- Performance of the necessary funeral or family ceremonies.
5- Costs of necessary litigation in recovering or preserving the estate.
6- Costs for defending the head of the family or any other member against serious
criminal charge.
7- Payment of debts incurred for family business or other necessary purpose.
Gift of a small portion of property for educational purposes is not legal necessity. The selling
by the karta or manager for the purpose of migrating to a new place for a better living has
been held to be a sale for legal necessity. 2
Alienation by Manager for Benefit of Estate
There was a conflict of opinion as to the meaning of the words ‘for the benefit of the state’
which occur in the judgement of the judicial committee in Hunooman Prasad’s case.
One view was that a transaction cannot be said to be for the benefit of estate, unless it is of
defensive character calculated to protect the estate from some threatened danger or
destruction.
Another view was that for a transaction to be for the benefit of estate, it is sufficient, if it is
such as a prudent owner would have carried out with the knowledge available to him at the
time of the transaction.
2
Vanimisatti v. Jayavarapu AIR 1995 AP 105
6|P a g e
The first authoritative exposition of the expression ‘for the benefit of estate’ is to be found in
Palanippa v. Deivaskamon.3 The question in this case was as to the power of the mahant to
alienate debutter land. The judicial committee observed:
“No indication is to be found in any of them as to what is, in this connection, the precise
nature of the things to be included under the description ‘benefit of estate’. It is impossible to
give a precise definition of it applicable to all cases and they do not attempt to do so. The
preservation of the estate though, from extinction, defence against hostile litigation, would
obviously be benefits.”
The manager of the joint family is not entitled to sell the joint family land solely for the
purpose of so investing the price of it as to bring in an income larger than that derived from
the probably safer and certainly more stable property, ie- the land itself. A mortgage of a
family property for the purposes of solely purchasing another property is not for bene fit of
estate. A sale of a joint family property which is inconveniently situated and is unproductive,
the purchase money being invested in another property which is a sound investment is for
benefit of estate. A mortgage or a sale solely for the purposes of pr-empting another property
is not a sale for the benefit of estate.
A gift by the manager of a joint family of a small portion of zamindari land purchased by him
to a stranger, with the object of defeating a claim for pre-emption was held to be transaction
for the benefit of the family and therefore binding on the family. 4
Burden of Proof of Necessity
Where the manager of a joint Hindu family sells or mortgages joint family property, the
purchaser or mortgagee is bound to inquire into the necessity for the sale or mortgage, and
the burden lies on the purchaser or mortgagee to prove either that there was a legal necessity
in fact, or that he made proper and bonafide enquiry as to the existence of such necessity or
did all that was necessary to satisfy himself as to the existence of such a necessity.
3
4
(1917) 44 IA 147
Mohib Ali khanv. Baldeo Prasad (1939) All 305
7|P a g e
The existence of necessary purpose is not the same as a legal necessity as there may be large
resources, a large income making loans unnecessary. The lender must show neces sity for the
loan. If the purchaser or mortgagee proves that there was a legal necessity, in fact, the
alienation will be upheld, even though the necessity was brought about by the previous
mismanagement of the manager, unless it is shown that the previous mismanagement was
contributed to by the purchaser or mortgagee himself.
Money raised on Mortgage applied only in part for the purposes of Legal Necessity
If the sale itself is not justified by legal necessity, and the purchaser pays a fair price for the
property sold, and acts in good faith and after due inquiry as to the necessity for the sale, the
mere fact that the part of the price is not proved to have been applied to purposes of necessity
would not invalidate the sale, the purchaser not bound to see the application of the money.
Sri Nath v. Jagannath5
There was a sale for Rs. 6,000 which was a fair price but the amount proved to have been
applied for the purposes of legal necessity was only Rs. 3,281 and there was no evidence of
any enquiry having been made by purchaser as to the necessity for the loan. It was held that
the sale itself was not one which was justified by legal necessity for the loan, it was held that
the sale itself should be set aside conditionally on payment by the plaintiffs of Rs. 3281 to the
purchaser.
If the sale is completed at a time when the property was deprived of all its value as absolvent
of the financial difficulties the sale should be set aside but if the purchase money has been
applied by the manager in the payment of the family debt, the purchaser should have full
benefit of the mortgage.
5
(1931) 52 ALL 391
8|P a g e
Alienation for the purposes of Family Business
The power of a manager to carry on family business necessarily implies a power to mortgage
or sell the family property for a legitimate and proper purpose of business. An alienation so
made is bonding upon family property including interests of minor coparceners therein.
Further, the manager has the authority to raise money not only to discharge debts arising out
of family business but also for the money needed to carry on the trade. It is a matter of
decision whether the money necessary should be raised b y mortgage or by a sale, and
whether it was better to raise money to continue a business, which of late had not been
profitable, or to close it down it would be unreasonable to expect a lender or purchaser to
investigate questions of that kind. If the lender or purchaser acted honestly and with due
caution and made reasonable inquiries which led him to believe that a sufficient and real
necessity for the raising of the money for the purposes o f the family business did exist and he
is not bound to see the application of money.
Where the alienation was made by the manager who was blind and deaf and practically all the
money which had been disallowed by the High Court had been borrowed by the fourth and
fifth defendants who were the eldest members of the family and the manager’s right hand
men, their conduct not giving evidence and remaining as defendants, while causing their sons
to file questioning the alienation was held by their Lordships of the Privy Council to be
strong corroborative evidence of legal necessity.
A mortgage by the manager for enlarging a family business by the purchase of fresh stocks is
binding on the family property including the interest of the minor coparceners there in,
provided the transaction is one which a prudent owner would enter into having regard to all
the circumstances of the case.
Where the family is a trading family e.g. - Kayasthas, who have been known to carry on
business throughout generations as a means of livelihood, in such cases the karta has the right
to alienate coparcenary property for the purposes of such a business without existence of any
legal necessity or benefit of estate as here the business is the only means of livelihood.
9|P a g e
Satish Kumar v. Sat Prakash
C.M. No. 22051-CII of 2009 and Civil Revision No. 3377 of 2009 (O and M)
High Court of Punjab & Haryana
Decided on: 18/09/2009
Issue before the Court:
“Whether an injunction could be granted against Karta of joint family property restraining
him from alienating the same without legal necessity?"
Contentions:
The plaintiff being the son claiming himself to be the coparcener has instituted a suit
restraining the defendant (father) from alienating, mortgaging or disposing of the suit
property, on the allegations that the same was ancestral coparcenary and joint Hindu family
property; the plaintiff being the coparcener had birth right in it, as such, the defendant could
not alienate the same without legal necessity. During the pendency of the suit, the plaintiff
sought temporary injunction against alienation.
Both the parties have placed reliance on the judgment delivered in case Sunil Kumar v. Ram
Parkash6 , in order to press their rival contentions. The intent and purport of the judgment
was to avoid interference of the coparceners in the bonafide acts of the karta in dealing,
transferring, mortgaging or otherwise disposing of the property for legal necessity, benefit
and welfare of the estate. Thus, in order to seek injunction the plaintiff coparcener was to
make out a case that the property was being thrown away by the defendant-Karta.
Judgment:
Injunction not granted on the grounds of no case of defendant-karta throwing away property
made out.
6
AIR 1988 SC 576
10 | P a g e
Conclusion
Thus it can be seen that the karta of a family or a father can alienate the coparcenary property
only if there exists a legal necessity or he can do so for the benefit of estate. He may also
alienate it for the furtherance of the family trade and such an alienation would be binding on
the minor coparceners though, there is an onus on the karta to prove the existe nce of the
above mentioned grounds. But in no circumstance can a karta alienate the coparcenary
property for his own benefit unless he has consent of all the coparceners or he is the sole
surviving coparcener.
11 | P a g e
Bibliography
Book Sources
Hindu Law, Mulla
Family Law Material
Internet Sources
www.manupatra.com
www.indiakanoon.org
12 | P a g e
