Alienation of Property: Separate and Coparcenary

In one line

A member may do what he likes with his separate property; the karta may deal with the family's only for necessity, for the benefit of the estate or to pay an antecedent debt, and a coparcener's remedy is to undo the sale afterwards.

Separate property: no restriction

A member's separate property is his absolutely. He may sell, mortgage, gift or bequeath it as he pleases. No coparcener has any interest in it, no coparcener may object, and no question of necessity arises.

The only thing to watch is the point made in [Property under Mitakshara Law: Separate and Coparcenary]: property may be separate as against one person and ancestral as against another. A share taken on partition is separate against the brothers and coparcenary as regards his own sons, and to that extent his freedom to deal with it is gone.

Coparcenary property: who may alienate

Three different people may alienate coparcenary property, on three different footings, and confusing them is the commonest error in the module.

The karta, for the family, on proof of one of the three justifications. This is the main case and the rest of the chapter.

The father, in his special capacity, who has a power to make a gift of affection of a reasonable portion of the ancestral moveable property, and a power to alienate for an antecedent debt of his own that is not illegal or immoral, which is [Debts: the Doctrine of Pious Obligation and Antecedent Debt].

A sole surviving coparcener, who may alienate as he pleases, because there is nobody with an interest to object. But the moment a son is born or is adopted, the property resumes its coparcenary character, and an alienation made before that is not affected.

An individual coparcener, classically, could not alienate his undivided interest without the consent of the others, because he had no defined share to convey. That is the Mitakshara rule and the contrast with Dayabhaga in [Dayabhaga Coparcenary, and Property under Dayabhaga Law]. In some regions a coparcener's interest could be sold in execution of a decree against him, and courts allowed a purchaser at such a sale to sue for partition.

The three justifications

Sushil Kumar v. Ram Prakash, AIR 1988 SC 576, decided on 13 January 1988.

Facts. Ram Prakash, as karta of a joint Hindu family, agreed to sell the family house to Jai Bhagwan and took five thousand rupees as earnest money, then refused to execute the sale deed. Jai Bhagwan sued for specific performance. The karta's three sons applied to be joined in that suit and were refused, so they brought their own suit for a permanent injunction restraining their father from alienating the property, saying it was coparcenary property and the sale was for neither legal necessity nor the benefit of the estate. The trial court found for them.