For Law Students

1. Alienation of Joint Family Property
Dr. Amit Guleria (Double Medalist; Gold and Silver)
Assistant Professor,
Dr. B.R. Ambedkar National Law University Sonepat
Email: amitdbranlu@gmail.com

2. General Notion & Modes of Alienation
Alienation Simply Means Transfer of Property
Voluntary Alienation Involuntary Alienation
Modes of
Alienation

3. Modes of Alienation
Modes of Voluntary Alienation
Sale
Lease
Mortgage
Gift
Will
Exchange
Considerational
Non-Considerational
Conditional

4. Involuntary Alienation
Involuntary alienation is when the court
attaches the property of a person. The property
of the joint family or undivided interest of a
coparcener in such property may also be
alienated through involuntary alienation

5. Subject Matter of Alienation
Joint Family Property: Coparcenary Property.
Father can make the alienation of SAP, it cannot
be questioned by son. (Manjit Singh v. Rajender Singh,
AIR 2013 HP 70).
The concept of alienation is significant because in JHF neither the
Karta nor any other coparceners has the absolute authority of
alienation over the JHFP or over his/her interest in the JHFP.
Significance of Concept of Alienation

6. When other coparceners are minors, s(he) can alienate joint
immovable property so as to bind not only his/her own
interest but also that of the other minor coparceners,
subject to the condition that such alienation is the necessity
in the interest of JHF.
Karta can alienate the joint family property even without
the consent of coparceners in ensuing three circumstances:
Karta’s Power to Alienate the Property
Benefit of Estate
Performance of
Indispensable Duties
Legal Necessity

7. The High Court of Patna in Bageshwari v. Deopatti, 1965 Pat. 416,
laid down that alienation of JHFP could be done only for ‘legal
necessity’ or for ‘benefit to estate’.
Further it was observed that:
If Karta himself executed a permanent lease deed of JHFP
without any legal necessity or benefit to estate, the deed is void
and cannot be enforceable.
The Hon’ble Supreme Court of India in Arshnoor Singh v. Harpal
Kaur, AIR 2019 SC 3098, ruled that if the Karta sells property
without any ‘legal necessity’ or ‘benefit to estate’, the sale-deed
executed by Karta would be illegal, null and void.

8. Vijnaneshwara recognized three exceptional cases in
which the alienation of the joint family property could
be made:
Apatkale: in the times of hardship/distress. (Includes
Legal Necessity)
Kutumbarthe: for the sake of family/maintenance of
family. (Also includes for the benefit of estate)
Dharamarthe: for the performance of indispensable
religious duties.

9. In Subodh Kumar & Ors. v. Bhagwant Namdeo Rao Mohatre, AIR
2007 SC 1324, the Hon’ble SC observed that a Karta has a power
to alienate for value the JHFP either for legal necessity or for the
benefit of the estate.
❖He can alienate the property with the consent of other
coparceners of the family.
❖When he alienates the property for legal necessity he alienates
an interest , which is grater than his undivided interest, when
the Karta, however, conveys by way of imprudent transaction,
the alienation is voidable to the extent of the undivided share of
the non-consenting coparcener.

10. Allahabad High Court in Dudhnath v. Satnarain Ram, AIR
1966 All. 315, observed that in order to uphold an alienation
of JHFP by the father or the Karta, it is not only enough to
prove that there was legal necessity, but it is also to prove
that he acted like a prudent person and didn't sacrifice the
property for inadequate consideration.
In Manohar v. Dewan, AIR 1985 P&H 313, Alienation
without the consent of other coparceners, which is not for
legal necessity is void in its nature.

11. When the Karta exercises the power of
alienation of JFP in exceptional cases
(Apatkale, Kutumbarthe, and Dharmarthe)
the consent of other coparcener (including
minors) is implied. (Sanu Ram v. Bhup Singh,
(1917) 39 All. 437).

12. .
Alienation of Minor’s Undivided Share: In order to
meet the legal necessity, the undivided share of minor
coparceners can be alienated.
JHFP in which a minor has undivided share is
alienated by Karta for the clearance of family debts
incurred due to legal necessities. In such circumstances
the prior permission of the court is not required before
the alienation of immovable property (Harish v. Sindhu
& Others, AIR 2012 Ker 1).

13. Repayment of family debts
Payment of land revenue
Maintenance of coparceners
Necessary litigation expenses
Marriages expenses of majors coparceners only (Minor’s marriage is not a legal
necessity (Dev Kishan v. Ram Kishan, AIR 2002 Raj. 370)
Earthquake, Fire, flood, etc.
Medical care
Instances of Legal Necessity

14. Hence, the instances of legal necessity cannot
be exhaustive (the categories of legal necessity
cannot be closed).
Now it is a settled position that Karta can
alienate the JHFP with the consent of other
coparceners, even in the absence of exceptional
circumstances.
Whenever the alienation has been made by
Karta due to the occurrence of ‘legal necessity’,
it cannot be challenged by other coparceners
(Kehar Singh v. Nachitar Kaur, AIR 2018 SC
3907).

15. Alienation by Sole Surviving Coparcener:
S(he)Can alienate the coparcenary property as it was a
separate property.
Sole surviving coparcener has the absolute authority to
alienate the coparcenary property, because there is no other
member having joint interest in the family property
(Guramma Bhartar v. Nagamma Bhartar, AIR 1964, SC 510).

16. Alienation by Father to his daughter:
To maintain the father especially when he becomes
old is the duty od son(s).
If not maintained so, and father lives with daughter
and daughter maintains father, father can alienate
the joint family property to daughter even in order
to meet the expenses incurred for father’s
maintenance. And the property can also be
alienated to any other person in the same conditions
(Sundar Yadav v. Asha Kumari, AIR 2009 Pat 131).

17. Alienation by a Coparcener:
Undivided share in the JFP
Interest of Coparcener in JFP is of:
❖Possession
❖Ownership
❖Alienation

18. All the significant decisions are made by Karta
and other adult members of family for the sake
of family.
❖Consent of other coparceners.
❖A positive action of Karta.
❖The interest of joint family is prime.
❖Test of prudent person: what a prudent
person can do in respect to his own property.
Benefit of Estate: Kutumbarthe

19. ❖Alienation in furtherance of advancement of
joint family.
❖The action should be to prevent probable
losses.
❖The action should not be of speculative
nature.
❖Every act which might benefit the family.

20. If the JFP yielding no profit was agreed to be
sold to purchase land available at a very
cheaper price and yielding more profit at
another village, the intended alienation must be
construed to be for the benefit of the family and
such agreement to sell was not invalid in the eye
of law (Hari Singh v. Umrao Singh, AIR 1979
All. 65).

21. Pious Duties: To pay off father’s debts (moral and
lawful), Funeral expenses, pindadana, sharada etc.
Performance of other Samskaras including
marriage.
Religious charity.
Family idols and idol in a public temple (Audyappa
v. Muthulokhmi, 1925 Mad. 1281).
Indispensable Duties

22. Challenge of Alienation
The power Karta to alienate the joint family property is not
absolute.
The alienation can be challenged on the ground that Karta
has exceeded his powers.
The right to challenge the alienation is available.
The right to challenge the alienation is subject to law of
limitation. (12 years, from when the alienee takes possession
of the property) (Ent.109, LA, 1963).

23. The BoP is on alienee to prove that the
alienation was for a valid purpose (legal
necessity/benefit of estate etc.). He has to
prove that he made proper and bona fide
enquiry about the existence of such necessity.
But alienee is not bound to see that the money
paid by him for the alienation was actually
applied to meet the same legal necessity or
not.

24. Who can Challenge the Alienation
All the coparceners.
A person who succeeded to joint family property.
A subsequent alienee of the whole coparcenary property.
A purchaser at sale in execution of a decree against the entire
coparcenary property or a portion of it.
A person holding title to the whole of joint family property by
adverse possession.
A creditor, on finding that the alienation is taking place in order to
defraud him/her.