FAMILY LAW-II

ALIENATION OF PROPERTY BY GIFTS

Final Draft submitted in fulfillment of the course

Family Law - II, Semester IV during the academic year 2017-18

Submitted by-

Shubham Mishra

Roll No.- 1649

B.B.A LL.B

Submitted to-

Ms. Pooja Srivastava

March, 2018

Chanakya National Law University,

Mithapur, Patna, 800001

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TABLE OF CONTENTS
Introduction ..................................................................................................................................... 4
Father’s power of alienation ........................................................................................................... 6
Gifts of Love and Affection ........................................................................................................ 7
Gifts of Immovable Property .................................................................................................. 7
Alienation for Discharge of his Personal Debts .......................................................................... 7
Karta’s power of alienation ............................................................................................................. 8
Hunooman Persaud v. Mussmat Babooee .................................................................................. 8
Benefit of estate .......................................................................................................................... 9
Legal Necessity ......................................................................................................................... 10
Partial necessity .................................................................................................................... 11
Indispensable Duties: - .............................................................................................................. 12
Coparcener’s power of alienation ................................................................................................. 13
Involuntary Alienation .............................................................................................................. 13
Voluntary Alienation ................................................................................................................ 13
Gifts....................................................................................................................................... 13
Sale and Mortgage ................................................................................................................ 13
Renunciation ......................................................................................................................... 14
Sole surviving coparcener’s power of alienation .......................................................................... 15
Gifts under Hindu Law ................................................................................................................. 16
Conclusion and suggestions .......................................................................................................... 18
BIBLIOGRAPHY ......................................................................................................................... 20

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Objective:

The objective of the research is –

1. To know who all possesses full power of alienation over the joint family property,
2. And to know the extent to which they can exercise their power.

Sources of Data:

 Primary Source:
1. Statutes

 Secondary Sources:
1. Books
2. Articles
3. Websites

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Introduction
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. Whereas 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. Alienation could be by means of gifts,
sales and mortgages however this project restrains itself to the topic of alienation of property
only by gifts.

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:

 Father’s power of alienation

 Karta’s power of alienation
 Coparcener’s power of alienation
 Sole surviving coparcener’s power of alienation
 Aileen’s 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.

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Alienation can be defined as “it includes as any disposal by the father, karta, coparcener or the
sole surviving coparcener of a part or the whole of the joint family property by any act or
omission, voluntary or involuntary, intended to take part in present or future”

Thus it can be said that alienation has a very wide scope and application. 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. The lack of any codified law as well the changing face of
the commercial transactions a joint family enters into these days have created many situations
where even the jurists have still not agreed upon the settled law and this constant situation of flux
makes alienation a very interesting study. The effort has been made to list all the varying
viewpoint and critically analyzed 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.

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Father’s 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 don’t get a right over the property by
birth under Dayabhaga School, father doesn’t need the consent of his sons for the purpose 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. The two cases are dealt with below-
Gifts of love and affection –
The father can make a gift of reasonable amount of the ancestral movable property out of love
and affection1 to the family members who are not entitled to any share at the time of the
partition. Even in the case of the coparcener, however the rule in this case is that the value of the
property gifted must be very small in comparison to the entire movable property. 2 Thus the gift
of affection may be made to the daughter, wife or even the son.
In the case of Subbarami v. Rammamma3 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.
A classic example of such a gift came up before the Privy Council in the case of Bachoo v.
Mankore Bai- In this a gift made to the daughter of Rs.20000 was held to be valid as the total
value of the estate was 10-15 lakhs.

Father enjoys an absolute power, which empowers him to alienate the property even when there
are no moral justifications. In Ramkoomar vs. Kishenkunkar, 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 father’s 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 Kishori4, wherein it held that father
had full power of alienation over his separate property, both movable and immovable.

1
. Mayne,HINDU LAW AND USAGE,15th ed. 2003,p.79
2
. Mulla,HINDU LAW,17th ed.2000,p.331.
3
(1812) 2 SD 42 (52)
4
(1928) 30 BOMLR 1331

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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: -

 Gifts 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 Bay5, 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. Rammamma6 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. Malappa7, 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 purpose8

5
(1907)34 IA 107
6
(1920)43 Mad 824
7
1964 AIR 510, 1964 SCR (4) 497

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Karta’s power of alienation

The modern law of alienation is completely based on the ancient texts with little or no deviation
from the basic rules given there. The modern law of alienation was settled to a large extent in the
landmark judgment of Hindu Succession Act, 1956.

Hunooman Persaud v. Mussmat Babooee9

In this case the alienation made by a widow for the interest of her minor son was challenged,
here the case was that of a mortgage but the lordships made it clear that the same principles
would be applicable even in the case of sale or gift and that too by any member, father or karta.
Here three conditions were stated in which the alienation would be valid:-
1. In the case of a legal necessity. Corresponding to the ancient condition of Apatkale
2. For the benefit of the estate, similar to the concept of Kutumbharthe
3. For religious purposes i.e. Dharmarthe.
The Privy Council in its decision went on to lay many other principles which are still relevant in
deciding cases on invalid alienation:
The power of the manager for an 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 the case of need or for the benefit of the estate. However, where in
particular instance, the charge is one that a prudent owner would 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 …. Their lordships think that the lender is bound to inquire
into the necessities for the loan and to satisfy himself as well as he can with
reference to the parties with whom he is dealing that the manager is acting in a
particular instance for the benefit of the estate. However they think that 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 and they do not think that under the circumstances, he is bound to set the
application of money.10
The above given text gives the boundaries of Karta’s power inside which he can alienate
the joint property even without the consent of all the coparceners. Literally translated it means
“he has special powers of disposition (by mortgage, sale or gift) of family property in a season of
distress (for debt), for the purposes and benefit of the family (maintenance, education and
marriages of members and other dependents) and particularly for religious purposes (Shraddhas
and the like)”

8
Brij Narain vs. Mangla Prasad.
9
. (1856)6 MIA313;supra n. 3 p.370.
10
. Ibid.

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Therefore, under the Mitakshara law the manager can validly make an alienation only in three
circumstances i.e. Apatkale (in times of distress), Kutumbarthe (benefit of the family) and
dharmarthe (religious purposes). Under Dayabhaga, the powers of the karta are similar to that of
the Mitakshara. However it differs in the powers of the father are much wider as Dayabhaga
says that the father has absolute power to dispose off all kinds of ancestral property by sale,
mortgage, gift, will or otherwise in the same way as he can dispose off his separate property.11

Benefit of 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 v. Deivasikamony.12
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 defence
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”
The Supreme Court later added its own observation as to what constitutes benefit, in the case of
Balmukund v. Kamla Wati.13
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.
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 v. Umrao Singh14, 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 v. Indian Overseas Bank15, when a alienation was made to carry out renovations
in the hotel which was a family business, it was held to be for benefit.
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.
Therefore, the Karta, as prudent manager can do all those things which are in furtherance of
family’s advancement or to prevent probable losses, provided his acts are not purely of a
speculative or visionary character.

11
. Daya. II 28-31;supra n.7 p.594.
12
. (1917)44 IA 147;supra n. 3 p. 373.
13
. AIR 1964 SC 1385.
14
. AIR 1979 All. 65.
15
. AIR 1978 A.P. 37.

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Legal Necessity
Again as in the case of benefit of the estate, the courts have refrained from giving a set definition
to the concept of legal necessity so as not to reduce it onto watertight compartment16. The
concept of legal necessity is essentially one which may change and is thus in a state of flux.
It can basically mean all acts done to fulfill the essential needs of the family members and only
those acts which are deemed necessary.17
The shastric condition on which the concept of legal necessity i.e. Apatkale essentially means
situations of distress and emergency like floods, famines, fire, wars etc. however it has been
recognized under the modern law that necessity may extend beyond that. Thus it is now
established 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.18
The following example would suitably illustrate the above stated principle-
Food shelter and clothing of the family members, marriage of the members of the family
including daughters (special duty), medical care of the members of the family, defence of a
family member involved in a serious criminal case, for the payment of debts binding on the
family, payment of government dues etc.

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 Veeracharlu19, 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.
Thus, Legal Necessity doesn’t mean actual compulsion; it means pressure upon estate which may
in law may be regarded as serious and sufficient. If it is shown that family’s 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.

16
. Dr Paras Diwan,MODERN HINDU LAW,15th ed. 2003, p.302.
17
. Supra n. 2, p. 801.
18
. Supra n. 16.
19
(1911) ILR 34 Mad 422

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 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.

In the landmark case of Hanoomaprasad vs. Babooee, 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.

Partial necessity

In Krishandas vs. Nathuram, 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.

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Indispensable Duties: -
The third ground upon which the authority of the managing member whether father or any other
karta to make an alienation of family property rests is where the indispensable duties such as the
obsequies of father and the like require it.
“and the like” may include many rituals and religious duties like sradha, upanayana, and
performance of necessary Sanskara20. In the case of the marriage of the members of the family
members it would come under the purview of both legal necessity as well as pious obligation as
it is the most essential sanskara.21
The major case in this regards is that of Gangi Reddi v. Tammi Reddi22
In this 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.

20
. Supra n. 16, p. 302.
21
.T.V. Subbarao and Vijender Kumar, (rev.), GCV Subba Rao, FAMILY LAW IN INDIA,9 th
ed.2006,p.77.
22
. (1927)54 IA 136 ;supra n. 2 p. 803.

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Coparcener’s 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, 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.

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.

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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, Privy Council held that, a
coparcener’s 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.

Under the shastric law no coparcener can dispose off his share without the express consent of the
other coparceners. Br (S.B.E.33p. 384 verse 94) says “whether kinsmen are joint or separate they
are equal as regards immovable property. Since a single one of them has no power in any case to
make a gift, sale or mortgage of it”23
Since the Hindu sages laid great emphasis on payment of debts, the courts seized this principle
and started executing personal money decrees against the joint family property. 24
The law was settled in the case of Deen Dayal v. Jaidep25 where it was held that “purchaser of
an undivided interest at an execution sale during the life of the debtor of his separate debt
acquires his interest in such property with the power of ascertaining it and realizing it by
partition”. The limitation to this rule is that such a decree should be passed or has interest
attached during his lifetime.26
As far as voluntary alienation is concerned there are several rules pertaining to different states-
Under all the sub schools of Mitakshara, alienation of undivided share is not allowed unless it is
consented upon by every coparcener.27
In the states of Maharashtra, Madhya Pradesh and Madras,a coparcener can alienate his share
even without the consent of the coparceners.28
But in the states of Uttar Pradesh and West Bengal, such alienation cannot take place unless it is
for legal necessity or benefit of the coparcener.29
Under Dayabhaga school of law coparcener is entitled to alienate his property inter vivos or by
will.
Under the codified law, section 30 of the Hindu Succession Act 1956 a coparcener may dispose
of his share in the family property by will.

23
. Supra n.7 p.595.
24
. Supra n. 2,p. 820.
25
. (1877)4 IA 247;supra n. 2 p. 821
26
. Supra n .16 p. 277
27
. Supra n .3 p 397
28
. Supra n. 1 p. 315
29
. Ibid

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Sole surviving coparcener’s 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 doesn’t 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 his separate 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 he cannot challenge 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 held that such a child can actually challenge
the alienation made by the sole surviving coparcener as he’ll 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 and Babrondavs. Anna 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.

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Gifts under Hindu Law

Gift is a relinquishment without consideration of one’s own right in property and the creation of
the right of another. A gift is completed only on the other’s acceptance of the gift.
What property may be gifted
 A Hindu may dispose of by gift his separate or self acquired property, subject in certain
cases to the claims for maintenance of those he is legally bound to maintain.
 A coparcerner, may dispose of his coparcernary interest by gift subject to the claims of
those who are entitled to be maintained by him.
 A father may by gift dispose of the whole of his property, whether ancestral or self
acquired, subject the claims of those he is entitled to be maintained by him.
 A female may dispose of her stridhana by gift or will, subject in certain cases to the
consent of her husband.
 A widow may in certain cases by gift dispose of a small portion of the property inherited
by her from her husband, but she cannot do so by will.
 The owner of an impartible estate may dispose of the estate by gift or will, unless there is
a special custom prohibiting alienation or the tenure is of such a nature that it cannot be
alienated.
A gift under Hindu law need not be in writing. However, a gift under the law is not valid unless
it is accompanied by delivery of possession of the subject of the gift from the donor to the donee.
However where physical possession cannot be delivered, it is enough to validate a gift, if the
donor has done all that he could do to complete the gift, so as to entitle the donee to obtain
possession.

Gifts by Hindus where transfer of property act applies.

A gift under the above act can only be effected in the following manner.
a. For the purpose of making a gift of immovable property, the transfer must be effected by
a registered instrument signed by or on behalf of the donor, and attested by at least two
witnesses.
b.
For the purpose of making a gift of a movable property, the transfer may be effected by a
registered document signed by the donor or by delivery.

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Gifts to unborn persons

Under pure Hindu law, a gift cannot be made in favor of a person who was not in existence at the
date of the gift. This rule has been altered by 3 acts namely
The Hindu Transfers and Bequests Act 1914, Hindu Disposition of Property act 1916, and the
Hindu Transfers and Bequests (City of Madras) Act 1921

Reservation of life interest.

A gift of property is not invalid because the donor reserves the usufruct of the property to
himself for life.

Conditions restraining alienation or partition

Where property is given subject to a condition absolutely restraining the donee from alienating it,
or it is given to two or more persons subject to a condition restraining them from restraining it,
the condition is void, but the gift itself remains good.

Revocation of gift
A gift once completed is binding on the donor, and it cannot be revoked by him unless it is
obtained by fraud or undue influence.

Gift in fraud of creditors

A gift made with the intent to defeat or defraud creditors is voidable at the option of the creditors

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Conclusion and suggestions

Alienation is one of the concepts which evolved during the basic construction of Hindu laws and
it maintained its importance right throughout. The rules regarding conditions in which a valid
alienation can be made are very practical and pragmatic for example the condition of Apatkale
i.e. in the time of distress gives actual utility of the joint family property because the share of all
the members can be used to avert distress to any one of them, this is a safety net which saves
people from utter ruin and gives them a chance to start afresh, a chance which is never given to
the people in the supposedly highly civilized and progressive western nations. Secondly coming
to the condition of Kutumbarthe or ‘for the benefit of estate’, it provides the joint family
members a chance to improve their standard of living by pooling their resources and utilizing
them for their own benefit. This can be put to practical use for family benefit also in the shape of
family business which is a common Indian occurrence. Lastly we come to Dharmarthe i.e.
alienations made for religious purposes, this gives us an insight into the traditional Indian
thinking where religion is a way of life. Hence religious purposes are as important as times of
distress as they lead to deliverance.
The new changes made by the case law mostly by the Privy Council and the High Courts have
been equally empowering and given the joint family members the power to use the property for
their upliftment. Chief among these are – firstly the total control which a father now has on over
his separate movable and immovable property, this is a departure from the ancient law which did
not allow a father to dispose off his separate property according to his own wishes. Secondly the
new powers given to alienate his share in the undivided family property for his own use with or
without the consent of the other coparceners. This gives the power to him to use his share for
purposes which may not qualify as necessity for the whole family but are very important for him.
It also gives him a right to benefit from his share without severance from the joint family which
occurs at the time of partition. Thirdly the ground of Apatkale has been satisfactorily extended to
include along with situations of emergency and distress, those situations which may seem proper
and reasonable to the court. This has gone a long way in making the law of alienation much more
suited to present conditions.
However there still remain conditions where much is needed and where the judicial reforms have
been conspicuous by their absence or have fallen short of their mark.
Chief among these are the situation of the alienee in front of law, in my opinion the alienee gets
the worst bargain in the whole deal, starting from the alienation to the actual partition in case the
alienation is proved to be valid. Hence the first suggestions to improve the law of alienation are
regarding: -
First, the burden of proof of the alienee to prove that he took sufficient care to ascertain
whether there was actual need should be lifted, instead in cases of invalid alienation it should be
demanded of the alienor to prove that there was actual condition which demanded instant
redress. This should be so because the alienee being an outsider is not in a favorable position to

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ascertain it and such an obligation imposed on these transactions would make lenders unwilling
to deal in joint property which would in turn adversely affect the rights of joint family members.
Second, the law according to which the purchaser loses all his interest in the joint
property along with all the chance of getting back the purchasing amount is grossly unjust. It
should be noted that the courts in their haste to safeguard the interest of the non alienating
coparceners, forget the interest of the innocent purchaser who has made a bona fide deal. Hence
sufficient recourses should be made for this.
Thirdly, even in the case of a valid alienation the rights of the alienee are far from just
and this should be accordingly changed so that the alienee is entitled to the mesne profit of the
property from the day of the purchase instead of the day of the partition, also he should be
entitled to receive only that property which was alienated to him, in my opinion his interest is
more than a mere coparcener.
Other than that some minor suggestions like the coparcener should be given the right to seek an
injunction against alienations which can be proved to be invalid.
Lastly the position regarding the gifts of affection of immovable property should be made clear
and uniform.

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BIBLIOGRAPHY
STATUTE
 The Constitution Of India
 The Hindu Succession (Amendment) Act, 2005
 Transfer of property act,1882

BOOKS

The Hindu Succession Act 1956 by S.A. Kader.

Hindu Law by Mulla
The Indian Succession Act by Batuk Lal.

DATABASES REFERRED
 MANUPATRA
 SCCONLINE
 WESTLAW

WEBSITES REFERRED

www.legalcrystal.com
www.hanumant.com
www.manupatrafast.com
www.sccasesonline.com

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