Alienation of Property: Separate and Coparcenary

Held. On the substantive law, in a joint Mitakshara family a son acquires by birth an interest equal to that of the father in the ancestral property; the father, by reason of his paternal relation and his position as head of the family, is its manager, and is entitled to alienate joint family property so as to bind the interests of both the adult and the minor coparceners, provided the alienation is made for legal necessity, or for the benefit of the estate, or for meeting an antecedent debt. The power of the manager of joint Hindu family property is analogous to that of a manager for an infant heir, as the Judicial Committee observed in Hunoomanpersaud Pandey v. Mussumat Babooee Munraj Koonweree, (1856) 6 Moore's Indian Appeals 393.

But on the remedy, a coparcener cannot obtain a permanent injunction under section 38 of the Specific Relief Act 1963 restraining the father or manager from alienating, because he has an equally efficacious remedy, namely to have the sale set aside and recover possession, and section 38(h) bars the grant of such an injunction.

Why it matters here. It states the three justifications in a modern judgment, it fixes the standard by the Hunoomanpersaud analogy, and it decides the remedy against the coparcener. All three are examinable and the third is the surprise.

1. Legal necessity

Not necessity in the sense that the family would otherwise starve, but a pressing family purpose which the family funds cannot meet otherwise. The classical instances are:

• payment of government revenue and of debts payable out of the family property;
• maintenance of the members;
• marriage expenses of the sons and, in particular, of the unmarried daughters;
• the funeral and shraddha ceremonies of the father, mother and other members;
• the costs of necessary litigation to protect the family estate;
• the cost of defending the head of the family against a serious criminal charge; and
• payment of a debt binding on the family.

Two rules govern the proof, and both come from the Hunoomanpersaud analogy.

The alienee must make enquiry. A purchaser is not bound to see to the application of the money, but he must satisfy himself, by reasonable enquiry, that the necessity existed. A purchaser who enquired honestly and was satisfied on reasonable grounds is protected even if the karta afterwards misapplied the money.

The necessity need not be proved absolutely. It is enough that the alienee acted honestly after such enquiry as a prudent person would make.

2. Benefit of the estate

This is wider than necessity and it is the head that has grown. The classical view was that only a defensive transaction qualified, something done to protect the estate from a threatened danger. The modern view is that any transaction a prudent owner would enter into for the benefit of the property will do, so that an exchange of unproductive land for productive land, or a sale to pay for an improvement, may qualify.

The test to write is the prudent owner test: would a prudent person, managing his own property, have done this?

3. Antecedent debt

An alienation to pay a debt of the father which is antecedent, that is, prior in time and prior in fact to the alienation and independent of it, and which is not illegal or immoral, binds the sons. That doctrine belongs to the next chapter, because it rests on the pious obligation, and it has been altered by section 6(4) of the Hindu Succession Act.

4. Indispensable religious duties

Some writers add a fourth head, and the classical texts support it: an alienation for the performance of indispensable religious duties, such as the obsequies of the father. In practice it overlaps with legal necessity and is often treated as an instance of it.

The remedies of a coparcener

This is where an answer earns its marks, and Sushil Kumar supplies the structure.

He cannot get an injunction. A suit under section 38 of the Specific Relief Act to restrain the karta from alienating fails, because section 38(h) refuses an injunction where an equally efficacious relief can be obtained by another usual mode of proceeding, and here it can.

He can sue to set the alienation aside. After the sale, a coparcener may sue for a declaration that the alienation is not binding on his interest, and for possession.

The alienation is voidable, not void. It binds the family unless and until it is set aside, and it is good against the karta's own share in any event. A purchaser who fails on necessity does not lose everything: he is generally entitled to work out his rights against the alienor's share by a suit for partition.

Limitation runs against him. A coparcener has a limited time in which to sue, and a minor coparcener's time runs from his attaining majority.

He may also demand partition, which converts his undefined interest into a share and takes it out of the karta's reach for the future.

How to answer a problem

A question in this area is nearly always in the same shape: the karta has sold, or is about to sell, and a son objects.

First, is the property coparcenary or separate? If separate, the question ends: he may sell it.

Second, who is alienating? Karta, father, or sole surviving coparcener. Each has a different power.

Third, is there a justification? Legal necessity, benefit of the estate, or an antecedent debt not illegal or immoral. Any one is enough.

Fourth, did the alienee enquire? He need not see to the application of the money, but he must have satisfied himself on reasonable enquiry that the necessity existed.

Fifth, what is the remedy? Not an injunction, on Sushil Kumar. A suit to set the alienation aside and recover possession, and a suit for partition.

A worked example

A Mitakshara family owns ancestral land. The karta, K, sells part of it to P to pay a decree obtained against the family, and mortgages another part to raise money for a new shop he thinks will do well. A third coparcener, C, hears of a proposed sale of a third plot and rushes to court for an injunction.

The sale to pay the decree. Legal necessity: a family debt already decreed is a pressing family purpose. The alienation binds the family.

Must P prove the money went to the decree? No. He must show that he enquired into the existence of the necessity and acted in good faith; he is not bound to see to the application of the money.

The mortgage for the new shop. That is not necessity. It has to be justified, if at all, as benefit of the estate, and the test is what a prudent owner would do with his own property. A speculative new venture is the hardest case to bring within it.

The proposed third sale. C gets nothing. On Sushil Kumar v. Ram Prakash a coparcener has no right to an injunction restraining the karta from alienating coparcenary property; he must let the sale go through and then sue to set it aside.

Who proves what in that suit? The alienee must establish the legal necessity, the benefit of the estate, or the antecedent debt.

Suppose K were the father and the debt his own, incurred two years earlier. Then the antecedent debt doctrine applies: a debt prior in time and in fact and independent of the alienation, and an alienation by a father to pay one binds the sons, subject to section 6(4) of the Hindu Succession Act for debts contracted after 9 September 2005.

And if K were the sole surviving coparcener? He could alienate freely, subject to the rights of a son born or adopted afterwards.

What it does NOT mean

A coparcener's separate property is not touched by any of this. He may sell, gift or will it away as he pleases.

Legal necessity is not necessity in the sense of destitution. It is a pressing family purpose the estate must meet, judged as a manager for an infant heir would be judged.

Benefit of the estate is not profit. It is what a prudent owner would do with his own property in the circumstances.

An antecedent debt is not any prior debt. It must be prior in time and in fact, and independent of the alienation, and only a father may bind his sons by paying one.

The purchaser is not obliged to see to the application of the money. He must enquire into the existence of the necessity and act in good faith; he need not follow the money.

A sole surviving coparcener's freedom is not permanent. A son born or adopted afterwards may challenge alienations that were not for a permitted purpose.

A coparcener cannot stop a sale before it happens. On Sushil Kumar v. Ram Prakash there is no injunction; the remedy is a suit to set the alienation aside after it is made.

Quick revision

• Separate property: no restriction; the owner may deal with it freely.
• Coparcenary property: the karta may alienate only for legal necessity, for the benefit of the estate, or for indispensable religious duties; a father may in addition alienate to pay an antecedent debt, and that binds the sons; a sole surviving coparcener may alienate freely, subject to the rights of a son born or adopted later.
• Legal necessity: a pressing family purpose, on the standard applied to a manager dealing with an infant heir's property, the rule in Hunoomanpersaud.
• Benefit of the estate: what a prudent owner would do.
• Antecedent debt: prior in time and in fact and independent of the alienation.
• The purchaser's duty: to enquire into the existence of the necessity and act in good faith; he need not see to the application of the money.
• The coparcener's remedy: no injunction on Sushil Kumar; a suit to set aside the alienation, in which the burden lies on the alienee to prove the justification.

Test yourself

1. When may a karta alienate coparcenary property? Only for legal necessity, for the benefit of the estate, or for the performance of indispensable religious duties. A father may also alienate to discharge an antecedent debt of his own, and that binds his sons' interests.

2. What is legal necessity, and how is it proved? A pressing purpose of the family which the estate must meet, such as maintenance, marriage expenses, the payment of family debts, litigation for the family, or a funeral. It is judged by the standard applied to a manager dealing with an infant heir's property: the alienee must show either the existence of the necessity or that he made bona fide enquiry into it.

3. Need the purchaser see that the money is actually spent on the necessity? No. He must satisfy himself of the existence of the necessity and act in good faith; he is not bound to see to the application of the money.

4. Can a coparcener obtain an injunction to stop the karta selling? No. On Sushil Kumar v. Ram Prakash a coparcener has no right to an injunction restraining the karta from alienating coparcenary property; his remedy is to sue to have the alienation set aside after it is made.