The following persons may alienate the coparcenary property to pass a good title to the alienee:-
(1) The whole body of coparceners, where they are all adults;
(2) The manager for the legal necessity for the benefit of the estate;
ADVERTISEMENTS:
(3) The father in the capacity of the manger; and
(4) A sole surviving coparcener when there is no surviving coparcener.
Image Source: cdn.shareyouressays.com
The power of the manager of a joint Hindu family to alienate value joint family property, so as to bind the interest of all the coparceners provided that the alienation is made for legal necessity or for the benefit of the estate. A manager can alienate the minor’s share to satisfy the debts of minor’s father or grandfather if there is no other reasonable course open to him.
ADVERTISEMENTS:
The privilege of alienating the whole of the joint family property for payment of debt is available to the father, grandfather and great grandfather and the son or grandson only. The father in a joint Hindu family may sell or mortgage the joint family property including the son’s interest therein to discharge a debt contracted by him for his own personal benefit and such alienation binds the sons provided:
(a) The debt was antecedent to the alienation,
(b) It was not incurred for an immoral purpose, and
(c) The father acted like a prudent man and did not sacrifice the property for an inadequate consideration. (Prasad v. Govindaswami Mudaliar (1982) 1 SCC 185):
ADVERTISEMENTS:
For making the alienation valid is not necessary that the consent of the adult members should be taken.
But where the manager’s alienation is for neither family necessity nor benefit and same only for the other coparceners have consented, the alienation is not binding on the interests of even the alienor and the consenting coparceners except in Bombay and Madras as it should be treated as merely a coparcener’s alienation (Bhutan v. Rup. 1941 Pat. 23).
An alienation made by the manager of the joint family without the legal necessity is not void, but voidable at the option of the other coparceners. They may affirm or rejected it but a credit or cannot repudiate it.
The following have been held to be legal necessities:-
(1) Payment of Government revenue and debt which are payable out of the family property.
(2) Maintenance and marriage of the members of the family.
(3) Performance of funeral or other family ceremonies.
(4) Cost of necessary litigation about the estate.
(5) Cos’ of defending a member of the family against a serious criminal charge.
(6) Payment of debts incurred for family business.
(7) For performance of necessary ceremonies like Shradha and Upanayan.
(8) Medical care of the members of the family.
(9) For the payment of rent.
The manager has also power for alienation of the family property for the benefit of the estate.
There is a conflict of opinion as to the meaning of the word “for the benefit of the estate”. One view is that alienation is the benefit of the estate only when it is of defensive character calculated to present the estate from some threatened danger to destruction. Another view is that a transaction is said to be for the benefits of the estate if it is such as a prudent owner of a trustee would have carried it out with the knowledge which was available to him at the time of the transaction.
When the manager is the father he has some extra power also to make the alienation other than those enumerated above. These are the following:
(1) The father may make a gift of ancestral movable and immovable properties within a reasonable limit out of affection and for pious purposes.
(2) He may sell or mortgage ancestral movable or immovable properties including the interest of the sons, grandsons and great grandsons for the payment of his own debts, provided the debt was an antecedent debt was not incurred for immoral or illegal purposes.
(3) A father can surrender his radiate interest in the land if he is unable to cultivate them. This surrender will be upheld unless it is proved that it was a dishonest one intended to prejudice the sons.