Alienation of Property

Alienation of Property

Alienation means transfer of property such as gifts, sales and mortgages. Alienations have added importance in Hindu law neither the Karta nor any other coparcener of the family have the full power of alienation over joint Hindu property or over  his interest in joint Hindu family property in alienations there are various subject of alienations such as

Father’s power of alienation

Karta’s power of alienation

Coparcener’s power of alienation

Sole surviving coparcener’s power of alienation

Coparcener’s right to challenge and improper alienation

Alienee’s right and remedies

Fathers power of alienation means father that the father had full power of disposal over his separate movable property the reason for this was a text in the Mitakshara according to which the father is subject to control of his son and the rest in regard to the movable property. Father has the power to make gifts of love and affection of a small portion of movable joint family property to his wife, daughter, son, son-in-law daughter-in-law or to any other near relations. Gifts of immovable property cannot be made. Karta’s power of alienation states that although no individual coparcener including Karta has any power to dispose of the joint family property without the consent of all others it is recognised by Dharmashastra that in certain circumstances any member of the family has power to alienate the joint family property. Karta’s power include legal necessity which means all those things which are deemed necessary for the members of the joint Hindu family members. Thus legal necessity does not mean actual compulsion it means pressure upon the estate which in law may be regarded as serious and sufficient.

Benefit of estate means anything that is done which will benefit the joint family property. Anything that is done which is of positive benefit to the estate would amount to benefit of estate. Indispensable duties means the performance of those acts which are religious, pious or charitable. Burden of proof means whether the transaction is for legal necessity, benefit of estate or indispensable duties is on alienee under burden of proof powers of Karta’s are limited and qualified powers. The alienee is bound to make proper and bona fide enquiries as to the existence of legal necessity. Coparcener’s power of alienation include voluntary alienation and involuntary alienation where voluntary alienation means alienation of the undivided interest in execution proceedings. Where voluntary alienation means where a coparceners can be forced to do he should also be permitted to do it himself. When all coparceners die leaving behind one such a coparcener is known as the sole surviving coparceners. The sole surviving coparceners has full power of alienating the property the way he likes by sale, mortgage gift. Coparcener’s right to challenge means where the father the Karta the coparcener and the sole surviving coparcener overstep their power the alienation can be challenged it includes injunction to prevent the Karta from alienation of property, existing coparcener’s right to challenge and mode of challenge. Karta’s alienation means when an alienation is valid no problem arises the alienee is entitled to the possession of the property alienated in case alienation is in case of mortgage he has all the remedies of the mortgagee. Coparceners alienation and alienee includes right to partition, right to mesne profit and purchase take the properties subject to equalities. Right of joint possession means whether the alienee has a right of possession of the specific properties alienated to him before he seeks partition.

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