In absence of an adult coparcener in a joint family whether a widow of the deceased coparcener could alienate the joint family property, has been a controversial issue despite several judicial decisions to this effect. So far the following principles of law have been settled:
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The widow or any other heir having limited interest in the joint family property could alienate the property on the grounds noted below:
ADVERTISEMENTS:
(a) Legal necessity,
(b) The transferee after proper and bona fide inquiry is satisfied with the existence of legal necessity,
(c) The reversioner has also consented to the alienation, which was sufficient to conclude about the validity of the alienation,
(d) There was surrender of her interest in the estate by the widow at the time of alienation in favour of the nearest reversioners.
ADVERTISEMENTS:
In case any one of the above conditions is fulfilled, the alienation of entire or part of the estate by the widow would be upheld. But where only the fourth condition is fulfilled it is necessary to prove the alienation of entire estate.
Presumptions as to legal necessity could be raised from recitals of necessity in sale deed in case both parties to transfer deed are dead. Where an alienation of her deceased husband’s estate is made by the widow for payment of arrears of rent due by deceased husband to landlords and for repayment of her own debt incurred for husband’s sradh ceremony, it was held to constitute legal necessity for alienation.
Where legal necessity is not established and the transferee does not show that he had made proper and bona fide inquiry about the existence of such necessity, the consent to the act of alienation by the reversioners, would lead to an inferance that the alienation was valid. But this inference would be valid only in absence of any proof to the contrary and this fact only leads to the presumption of existence of legal necessity.
An alienation made by the widow in absence of legal necessity and consent of reversioners would not bind the reversioners. It would on the other hand bind the interest of the widow in the estate. In such cases the alienation would be voidable at the desire of the reversioners. But where the alienation has been effected for legal necessity it would be binding on the reversioners.