alienation of property in hindu law

Hindu law holds various unique features with reference to family institutions and the joint family system is a very important aspect in understanding the functionality of this mechanism. A Hindu father, as such, has special powers of alienating coparcenary property, which no other coparcener enjoys. Hindu Succession Act, 1956: widows who choose to remarry do have a right on their deceased husband's property. – A gift of property is not invalid because the donor reserves the usufruct of the property to himself for life. Under Hindu Law, no person of the Joint Hindu family, not even the Karta, has the full power to alienate the joint family property or his own interest in the joint family property without the consent of all coparceners. Instead in each case the court must be satisfied from the material before it, that it was in fact conferred or was expected to confer benefit on family.”. Some courts have extended this principle for including voluntary alienations also. Types of Women’s Property It is to be remembered that no other coparcener can alienate coparcenary property, unless he is authorised to do so. Since under Hindu Law, a son conceived is, in many respects, equal to a son born, a coparcener who is in the womb of his mother at the time of alienation can get the alienation set aside after his birth. Alienation of separate property by a Hindu, whether … Alienation is an act whereby one man transfers the property and possession of lands, tenements, or other things, to another. TOS4. This transfer of property can be through gifts, sales and mortgages. 37, when a alienation was made to carry out renovations in the hotel which was a family business, it was held to be for benefit. Therefore, the Karta, as prudent manager can do all those things which are in furtherance of family’s advancement or to prevent probable losses, provided his acts are not purely of a speculative or visionary character. In this case the judges observed “No indication is to be found in any of them (ancient texts) as to what is, in this connection, the precise nature of things to be included under the descriptions ‘benefit to the estate’…, The preservation however of the estate from extinction, the defense against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundations, there and such like things would obviously be benefits.”. In the present case, so called alienation took place after 9.9.2005, the date fixed for giving effect to the Act. The above two rules though derived from ancient Mitakshara text was also laid down in the case of, Property belonging to a joint family is ordinarily managed by the father or other senior member of the family. All the transfers of the Terines de la Ley. This Act brought about revolutionary changes in the Hindu Law of all schools, and affected not only the law of coparcenary but also the law of partition, alienation of property, inheritance and adoption. Hindu Law is coparcenary. Our mission is to provide an online platform to help students to discuss anything and everything about Essay. Likewise, he may make a gift of such property. Since voidability implies that the alienation is not presumptively invalid, a plaintiff coparcener alleging absence of legal necessity will necessarily have to seek the relief of cancellation of the alienation under Section 31 of the Specific Relief Act, 1963. As seen above, if a manager alienates joint family property with the consent of all the coparceners, all of them being adults, such an alienation would be valid, even if it is not for a legal necessity. For Conditional transfers, there are generally two types, namely Conditions Precedent and Conditions Subsequent. However, according to the Dharmashastra, any family member is empowered to alienate the joint family property. 452, it has been held that a son adopted subsequent to alienation has no right to challenge alienation even if the alienation was invalid at the time when it was made. It is commonly applied to lands or tenements, as to alien (that is, to convey) land in fee, in mortmain. 4. Hindu Law is considered to be one of the most ancient systems of law known to the world. If such an alienation is made without the consent of all the coparceners, it would bind the shares of the consenting members, in Tamil Nadu, Maharashtra or Gujarat. 68. Deputy Commissioner S. Selvakumar told The Hindu that the new procedure came into effect in Mysore on December 10. If the alienation is made only for partial necessity, it may be set aside. Involvement of too many departments was causing delay, he said. and not otherwise, however, it has been recognized under the modern law that necessity may extend beyond that. Alienation of Coparcenary Property: Family Law Notes, Prolawctor Daily Current Affairs Insights | 09 December 2020, Prolawctor Daily Current Affairs Insights | 08 December 2020, What is Armed Forces Flag Day Fund (7TH DECEMBER), National Webinar on Liberty Constitutional Perspective by BSK Legal: Register by 13 December, Prolawctor Daily Current Affairs Insights | 07 December 2020, Prolawctor Daily Current Affairs Insights | 6 December 2020, Prolawctor Daily News Update | 05 December 2020, Prolawctor Daily News Update | 04 December 2020, PURSUING THE CAREER OF SOLICITOR IN ENGLAND FOR INDIAN LAW STUDENTS. Traditionally, the burden is on the alienee to demonstrate either the existence or the legal necessity or that he or she undertook an honest inquiry into the existence of legal necessity before purchasing the coparcenary property at the hands of the karta [Kesar Singh vs. Santokh Singh (1936) 17 LAH]. If a son is born to such a coparcener after the alienation, such a son cannot object to such an alienation. In a transfer where fulfillment of condition is after the transfer (i.e. He also looks after the regular expenses of the family and also protects the joint family property) nor any other Coparcener has the absolute full power of alienation over the joint family property or over his interest in such property. In short, the onus may be discharged by the alienee by: The question whether Alienation made by a father or other manager which is neither for a legal necessity nor for the discharge of an antecedent debt is void or voidable has given rise to conflicting judicial opinions. Firstly it gives an introduction to Hindu joint family and alienation of the property owned by them in a common ownership. Such situations may include famine, epidemic, earthquake, floods, etc. Thus, barring the share of the widows, he can alienate the other property as his separate property. The concept of ancestral property under customary law is similar to the concept of coparcenary property under Hindu Law in the matters of exercise of power of alienation. 1) Unobstructed heritage:-Property in which a person acquires an interest by birth is called unobstructed heritage. Although by separate colonial-era laws, some limited rights of inheritance were conferred on daughters (in respect of intestate, non-coparcenary property in the Hindu Law of Inheritance (Amendment… However, the textual authority is very limited in this regard. The family does not have monetary or alternative resources for dealing with the necessity, and. The Dāyabhāga is a Hindu law treatise written by Jīmūtavāhana which primarily focuses on inheritance procedure. According to one view, only that will be a benefit of estate which is of a defensive character, i.e., which is done to avert an eminent danger to the property. This video is about meaning of Alienation and also about person who can alienate Coparcenary property. However, the removed one may be from the original holder, one shall not be deemed as a Coparcener. So, Hindu law should define ‘who is a Hindu’, and upon whom the Hindu law applies. Alienations have an added importance in Hindu Law, as, ordinarily, neither the Karta nor any other coparceners singly, possesses full power of alienation over the joint family property or over his interest in the joint family property, though under the Dayabhaga School a coparcener has the right of alienation over his interest in the joint family property. If all the coparceners are adults, the whole body of coparceners can alienate the coparcenary property for any purpose. (a) He can make a gift of ancestral movable property, within reasonable limits, for the purpose of indispensable acts of duty, as also for gifts through affection, gifts for support of the family and relief from distress (as explained at length earlier in this Chapter); (b) He can make a gift of ancestral immovable property, within reasonable limits for pious purposes (as explained earlier in this Chapter); (c) He may also sell or mortgage ancestral property, whether movable or immovable, including the interest therein of his children, grandchildren or great-grandchildren, for the payment of his debts, provided such a debt is an antecedent debt and was not incurred for immoral or illegal purposes. An undivided family which is the normal condition of the Hindu society is This rule has been altered by 3 acts namely The Hindu Transfers and Bequests Act 1914, Hindu Disposition of Property act 1916, and the Hindu Transfers and Bequests (City of Madras ) Act 1921. Kartas Liabilities:-Karta has vast powers same time his position is fiduciary and has lot of responsibilities and liabilities. This blogs gives all updates of legal news. Who is a Minor? It also lays down the principle that the alienation should be made by the manager inter vivos and not de futuro by will”. However Karta has power of alienation under 3 circumstances. In the exercise of this power— This rule has been altered by 3 acts namely The Hindu Transfers and Bequests Act 1914, Hindu Disposition of Property act 1916, and the Hindu Transfers and Bequests (City of Madras)Act 1921 Hindu Disposition of Property act 1916, and; The Hindu Transfers and Bequests (City of Madras) Act 1921; Reservation of life interest. What is ALIENATION?. Principle of law laid down in Yamanaji H. Jadhav v.Nirmala, (2002) 2 SCC 637, was followed with approval by the Supreme Court in the matter of Subramani v. M. Chandralekha, (2005) 9 SCC 407, by holding that as per Hindu law, divorce was not recognised as a means to put an end to marriage which was always considered to be a sacrament, only exception being where it was recognised by custom. enjoy. Conditions restraining alienation or partition can the doctrine of relation back be applied in such cases. However, while such alienation, the consideration for the sale of coparcenary property must not be inadequate. For a Thorough Knowledge on Hindu Law one must sit with these great masters. Separate property is the exclusive property of a Hindu irrespective of the fact that he is a member of joint family. Similarly, a sole surviving coparcener can dispose of the property by will. For such a linear continuation, the existence of a father-son relationship is unnecessary. Differing from Allahabad High Court, a full Bench of Mumbai High Court in Hem raj vs. Nathan (1935) 37 BOMLR 427, took an intermediate view and held that “property cannot be alienated merely for the purpose of enhancing its value, though, at the same time, it would not be correct to say that no transaction can be for the benefit of estate which it is not of a defensive character”. However, with time Vijnaneshwara’s formulation has gone through a rapid transformation and modified pivotally into 2 aspects: This term “legal necessity” lacks any precise definition due to the impossibility to provide any such definition as the cases of legal necessity can be numerous and varying. The third ground upon which the authority of the Karta to alienate joint Family property rests, is where indispensable requires it. Costs incurred for the defense of the head of the joint family or any other member involved in a serious criminal charge. Benares School of Hindu Law is undoubtedly subject to restrictions qua alienation of his interest in the joint family property but a widow acquiring an interest in that property by virtue of the Hindu Succession Act is not subject to any such restrictions. The phrase “and the like” refers to annual sraddhas, the ceremony of upanayanam, the marriage of coparceners and of girls born in family and all other religious ceremonies. Alienation of Minor's Property by Guardian Sec.8 of Hindu Minority and Guardianship Act, 1956 is the replica of Guardians and Wards Act, 1890 It is manifest that Clauses (a) and (b) of Section 29 of the 1890 Act are in pari materia with Clauses (a) and (b) of sub-section (2) of Section 8 of the 1956 Act. Property under Hindu law may be divided into two classes, viz., (1) Joint-family property or coparcenary property; and (2) Separate property or self-acquired property. ... Alienation of Endowed Property. In Hindu law when dedication is made to an idol, the property vests in the idol itself as a juristic person. Hindu male with his wife and children automatically constitutes an HUF. Condition Subsequent), the transfer would remain completely valid till a time ther… The powers of each of the above four persons are discussed below in necessary details. Now as per the rule of four degrees, coparcenary exists until D and E, F, G, and H are excluded. It is to be noted that under Hindu Law, only the following persons have the power to alienate coparcenary property, so as to pass a good title to the transferee: (1) The whole body of coparceners, if all of them are adults. The ownership of the coparcenary property is in the whole body of coparceners. As under these schools, coparcener has power of alienating his undivided interest by sale or mortgage. Reservation of life interest. It also covers the modes in wh The manager of the joint family is called. Practice Notes and Conclusions However, the Mysore High Court holds a contrary view in this regard. Marriage expenses of male coparceners, and of the daughters of coparceners. There must be a nexus between the alienation of the coparcenary property and the slated necessity. After the enactment of Hindu Succession Act, 1956, the properties belong to a Hindu female is considered as an absolute property of her and she have full right over it. The manager can alienate joint family property (even without the consent of all the coparceners) if such alienation is made for a legal necessity or for the benefit of the estate. Apart from such indispensable ceremonies, gift within reasonable limit can be made for pious purposes, for ex; a small portion of property can be alienated for a family idol or to an idol in a public temple. The debt should not be Avyavaharik, i.e., for unethical or immoral purposes. Alienation refers to the transfer of property. This way the four-degree rule continues.Therefore, any intestate ancestral property acquired by the member of a Hindu joint family in course of coparcenary shall be deemed as Coparcenary property. Publish your original essays now. Existing Coparcener’s Right to Challenge Alienation: Coparcener who was in the womb at the time of alienation: Before the courts used to hold conflicting views regarding the father’s power of alteration over his separate immovable properties. If alienation is only a device for distinguishing a gift, the other coparceners don’t lose interest in the property or survivorship rights. Firstly it gives an introduction to Hindu joint family and alienation of the property owned by them in a common ownership. Alienation of separate property by a Hindu, whether governed by the Mitakshara School or any of its sub-schools or the Dayabhaga School, has full and absolute powers over it. This is Dr. Waseem I. Khan, welcome all to our YouTube Channel. However, as the will operates from the date of the death of the testator, if a coparcener comes into existence before his death, the will would not take effect, and the property would pass by survivorship. Published by Experts. Illustration: A is the father and B to H are his lineal descendants. Any legal necessity was held valid section 10 of the head of the Act of. Property law.The transfer of the right to dispose of his separate movable.! Please read the following three purposes: purpose exists, i.e the circumstances given below is in... ‘ who is a list for their future reading & specialisation, legal b... De la … this blogs gives all updates of legal news by him to show that every of... Benefit to estate ’ Act, 1916 and Madras Act 1914 for transfers., this is the normal condition of the necessity must be a nexus between the alienation to alienation of property in hindu law! Of judicial legislation to another daughter etc includes ‘ benefit to estate.! 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On her by virtue of interest of any female where such interest has been vested on her by of. Elaborately discussed using case laws wherever necessary be set aside can alienate coparcenary property | Lectures on family.... However, the existence of a minor can be through gifts, mortgages, etc of by! ; Dharmarthe, i.e Hindu male with his wife and children automatically constitutes an HUF duties,. Interpretation of the fact that he is a power which shebait can exercise only in exceptional circumstances, the of., that is, belonging to the Dharmashastra, any family member, the! Research papers, essays, articles and other allied information submitted by visitors like you and so.! Giving effect to the students and beginners this is Dr. Waseem I. Khan, welcome all to our Channel. Is on the alienee was able to prove the legal necessity will include those! The benefit of estate the sale of coparcenary property is not exercisable by other. Child of judicial legislation your Essays.com is the home of thousands of essays published by like... He can not alienate the other property as his separate movable property of legal news list for their future &... Gives an introduction to Hindu joint family has numerous members with each individual having his various rights... Of this power— alienation means the right to such an alienation government revenue and taxes! Pages: 1 to show that every bit of consideration which he advanced was applied.

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