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Alienation
Alienation
Prof. (Dr.) Vijender Kumar Professor of Law & Commonwealth Fellow NALSAR University of Law, Hyd. [email protected]
ALIENATION
In this lecture we would discuss the subject (Alienation) under the following heads: - Fathers Power of Alienation - Kartas Power of Alienation - Coparceners Power of Alienation - Sole Surviving Coparceners Power of Alienation - Coparceners Right to Challenge an Improper Alienation - Alienees Right and Remedies
Benefit to estate:
In Gallamudi v. Indian Overseas Bank, AIR 1978 AP 37, case held that the Karta who was running a hotel business mortgaged the family property with a view to raising funds for renovation and reconstruction of the hotel, it was held to be for the benefit of estate. In Hari Singh v. Umrao Singh, AIR 1979 All. 65, case held that the land yielding no profit were sold to purchase land yielding profit, it was held to amount to benefit of estate.
Benefit to estate:
In Anil Kumar v. Krishna Murty, AIR 1995 AP 105, it was held that the sale of the joint family property by the Karta/manager for migrating to a different place for better living is a valid one. Sardha Ram v. Nakli Singh, (1990) 1 HLR 303 (SC), a case before the Supreme Court that, N faced by a notice under the Punjab Utilisation Act, that unless he brought the land under cultivation, they would be leased to others, decided to sell a portion of the land so that the sale proceeds may be utilised for the reclamation of the major part of the remaining land. The Supreme Court held that the bona fide decision taken by N cannot be said not to be an act of good management and the sale was valid.
Benefit to estate:
In Mukesh Kumar v. Harbans Wlariah, 2000(1) HLR 95 (SC), where all the male members of the joint family who were major at that time were partners of the firm and was therefore, a family business, the fact that the joint family properties were attached for payment of the income-tax, itself was sufficient to hold that the sale of the property was for the purpose of benefit of the joint family.
Indispensable duties:
The term indispensable duties implies performance of those acts which are religious, pious or charitable. Performance of marriage is a Samskara and therefore performance of marriage of members of the joint family, particularly of daughters, is an indispensable duty, though it is covered under legal necessity.
Indispensable duties:
There is a distinction between alienation made in the discharge of the indispensable duties and gift of small portions of joint family property made by the Karta for charitable or pious purposes. In the former case the Kartas powers are unlimited. He may even alienate the entire property. In the latter case he can alienate only a small portion of the joint family property, whether movable or immovable.
Burden of Proof:
Hanooman Prasad v. Babooee, (1856) 6 MIA 393, it is an established rule that the burden of proof whether the transaction is for legal necessity, benefit or for indispensable duty is on the alienee. The Privy Council propounded the following propositions: 1. The powers of the Karta under Hindu Law are limited and qualified powers. He can exercise the power of alienation in limited cases such as for legal necessity and benefit of estate.
Burden of Proof:
2. In case Karta makes an alienation as a prudent man, in order to benefit the estate or the family, the bona fide lender or alienee is not affected by the previous mismanagement of the estate, provided the lender or alienee was not a party to mismanagement. [In other words, lender or alienee should not have acted mala fide].
Burden of Proof:
3. The alienee is bound to make proper and bona fide inquiries as to the existence of legal necessity. 4. If the alienee acts bona fide and makes proper inquiries, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of alienation.
Burden of Proof:
5. The alienee is not bound to see as to the actual application of the money for the legal necessity. In Faquir v. Harnam, AIR 1967 SC 727, case it was held that whenever an alienation is challenged it is for the alienee to show that there was legal necessity.