Under which circumstances coparceners can challenge alienation of immovable property done by karta of joint hindu family?

  It is trite law that Karta/Manager of a joint family property may alienate joint family property only in three situations, namely, (i) legal necessity (ii) for the benefit of the estate and (iii) with the consent of all the coparceners of the family. In the instant case, the alienation of the joint family property under Ex.P1 was not with the consent of all the coparceners. It is settled law that where an alienation is not made with the consent of all the coparceners, it is voidable at the instance of the coparceners whose consent has not been obtained (See: Thimmaiah and Ors. Vs. Ningamma and Anr; (2000) 7 SCC409). Therefore, the alienation of the joint family property in favour of the second defendant was voidable at the instance of the plaintiff whose consent had not been obtained as a coparcener before the said alienation.{Para 12}

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

Coram:  S. ABDUL NAZEER; KRISHNA MURARI, JJ.

 CIVIL APPEAL NO. 2582 OF 2010;

Dated: April 19, 2022

 K.C. LAXMANA Vs K.C. CHANDRAPPA GOWDA & ANR.

Author: S. ABDUL NAZEER, J.

Read full Judgment here: Click here.

Print Page

Whether gift/renunciation/relinquishment or alienation by one coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners void?

 Moreover, under Hindu Law, the gift/renunciation/relinquishment or alienation by one coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners is void.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

Read full Judgment here: Click here

Print Page

Whether Karta of a joint Hindu family can gift ancestral property in favour of a third party out of love and affection?

 In the instant case, it is admitted by the second defendant that the settlement deed dated 22.03.1980 (Ex.P1) is, in fact, a gift deed which was executed by the first defendant in favour of the second defendant ‘out of love and affection’ and by virtue of which the second defendant was given a portion of the joint family property. It is well-settled that a Hindu father or any other managing member of a HUF has power to make a gift of ancestral property only for a ‘pious purpose’ and what is understood by the term ‘pious purpose’ is a gift for charitable and/or religious purpose. Therefore, a deed of gift in regard to the ancestral property executed ‘out of love and affection’ does not come within the scope of the term ‘pious purpose’. It is irrelevant if such gift or settlement was made by a donor, i.e. the first defendant, in favour of a donee who was raised by the donor without any relationship, i.e. the second defendant. The gift deed in the instant case is not for any charitable or religious purpose.

{Para 13}

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

Coram:  S. ABDUL NAZEER; KRISHNA MURARI, JJ.

 CIVIL APPEAL NO. 2582 OF 2010;

Dated: April 19, 2022

 K.C. LAXMANA Vs K.C. CHANDRAPPA GOWDA & ANR.

Author: S. ABDUL NAZEER, J.

Print Page

Whether donor can impose condition in gift deed that donee shall not have right to alienate gifted property?

 Learned counsel for the respondents has rightly placed reliance on the judgment of Allahabad High Court in Smt. Brij Devi vs. Shiva Nanda Prasad and others, AIR 1939 Allahabad 221, wherein the High Court had occasion to consider Sections 10 and 126 of the Transfer of Property Act. In the above case also gift deed came into consideration which contained a condition that “The donee or his successors will have no right to transfer or mortgage”. The Division Bench of the High Court had laid down:

“Now the law of conditions in regard to the transfer of property is contained in Ch. 2 of the T.P. Act. No condition therefore, in our judgment, imposed upon a donee can be valid if it is inconsonant with the provisions of Section 10 of the Act. 

This Court has already taken the view that condition restraining donee from alienation of gift, cannot be imposed and such a condition is void under Section 10 of the Act, 1882. I respectfully agree with the aforesaid view taken in Brij Devi (supra).

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1209 OF 2020

SRIDHAR Vs N. REVANNA 

ASHOK BHUSHAN, J.

Dated:February 11, 2020.

Print Page

Whether defendant taking plea of legal necessity can lead evidence to show that property was alienated for discharge of antecedent debt?

Somanath Sahu, the alienor of Ext. D was the manager of the joint family consisting of he himself and his sons, plaintiff and defendants 3 and 4. Plaintiff alleged in the plaint that there was no necessity for the sale in question and the family has not been benefited by the sale. Defendant No. 1 in the written statement never raised specifically that there was any antecedent debt and to discharge that debt sale had been affected. On the other hand, it was averred that there was legal necessity of the family and for the said necessity the sale had been affected. The question that arises for consideration, therefore, is whether in the absence of any pleading with regard to the existence of antecedent debt or that the sale was for discharge of antecedent debt would it be permissible for a party to lead evidence on that score and would it be permissible for a Court to consider that evidence and came to a finding that the sale was for discharge of antecedent debt. The manager of a joint Hindu family has power to alienate for value joint family property, so as to bind the interests of both adult and minor co-parceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate, what would be a legal necessity, had been described by Mulla in Article 243 of the Principles of Hindu Law so as to be within the powers of a Manager of a joint family to make an alienation. When an alienation is made by the Manager of a joint family, the alienee is bound to enquire into the necessity for the sale and the burden lies on the alienee to prove either that there was a legal necessity in fact, or that he made proper enquiry sets the existence of such necessity and he did all that was reasonable to satisfy himself as to the existence of such necessity. A Hindu father has some special powers of alienating co-parcenary property which no other co-parcenar has. He can make a gift of ancestral movable or immovable property as provided under Articles 225 and 226 and he may sell or mortgage ancestral property for payment of his own debt provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes. Apart from this he has no greater power over co-parcenery property than any other manager. Thus the power of sale of any co-parcenery property by the father for payment of an antecedent debt is the special power of the father of a joint Hindu family and if the father makes a sale of the co-parcenery property to discharge a debt contacted by him for his own personal benefit, then such alienation binds the sons, provided the debt was antecedent to the alienation and it was not incurred for an immoral purpose. "Antecedent debt" means antecedent in fact as well as in time, that is to say, that the debt must be truly independent of and not part of the transaction impeached. This being the position, an alienation for legal necessity stands on a footing fundamentally distinct from an alienation by a father for the discharge of antecedent debt. Consequently, the different considerations arise if an alienation is sought to be supported on the ground of legal necessity, these considerations cannot be imported in examining an alienation by a father after the discharge of an antecedent debt. Once it is pleaded that the alienation was for the discharge of antecedent debt, then the person who challenges the alienation can assail the same either by establishing that the debt in question was not antecedent at all or by establishing that the debt had been incurred for any immoral or illegal purposes. It is, therefore, imperative that the party must plead the same in the pleading as otherwise the other side will be greatly prejudiced if without any pleadings a party is permitted to lead evidence on that score and finding is arrived at. Mr. D. Mishra, however, places reliance on a decision of the Karnataka High Court in the case of Fakirappa v. Venkatesh MANU/KA/0086/1977, and contends that no prejudice having been caused to the plaintiff, even if it was not pleaded in the written statement that the alienation was for the discharge of antecedent debt, it would be open for the defendant to lead evidence on that score and the Courts can examine the same and come to their own conclusion. But on examining the aforesaid decision, I do not find anything mentioned therein which supports Mr. Mishra's stand. Further in that case the defendant pleaded in the written statement that the sale deed was executed by the father of the plaintiff for the purpose of discharging two mortgage debts contracted by him earlier, that the consideration paid under the sale deed was actually utilised for discharging those antecedent debts and that, therefore, the sale was binding on the plaintiffs. The aforesaid decision is, therefore, of as assistance to the contention raised by Mr. D. Mishra. Mr. D. Mishra though relies upon the decision of the Supreme Court in the case of Magubai Ammal v. S. Shama Rao MANU/SC/0089/1956, and contends that the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice and, therefore, the plea of antecedent debt can be examined and sustained as in that case. The Supreme Court on examining the provision of Order 6 Rule 2, C.P.C. came to hold that even though no specific pleading had been taken for the sale, the defendant was affected by the doctrine of lis pendens and non-specific issue was raised thereon but the defendants went to the trial with the full knowledge that the question of lis pendens was in issue and had ample opportunity to adduce their evidence thereon and fully availed themselves of the same and, therefore, the absence of specific pleading was treated to be a mere irregularity, but I am unable to apply that ratio to the present case since the plaintiff never knew that the defendants would prove a case of existence of antecedent debt. Such case not having been pleaded in the written statement, it is only at the evidence stage of the defendants some of the witnesses stated about the same. Consequently, the plaintiff had no opportunity to rebut the same and, therefore, it cannot be said that the plaintiff was not-prejudiced in the absence of the specific pleading. I would, therefore, hold that the question of sale being executed for discharge of an antecedent debt not having been pleaded in the written statement, the evidence led on that score by the defendants were without jurisdiction and the Courts had no jurisdiction to come to a finding on that score on the basis of the said evidence. Consequently, the finding that the sale was affected for repayment of an antecedent debt and, therefore, it was for necessity cannot be sustained and is accordingly quashed. No other necessity having been established, it being not established that the sale was for the benefit of the estate and the finding on the question of antecedent debt having been set aside by me, it must be held that the father of the plaintiff had no power to alienate the joint family co-parcenery property under Ext. D while acting as the Manager of the family and the sale deed Ext. D must be held to be invalid and does not confer any title on defendant No. 1.

IN THE HIGH COURT OF ORISSA

Second Appeal No. 31 of 1981

Decided On: 27.08.1990

 Biranchi Narayan Hadu  Vs.  Smt. Krushnapriya Debi and Ors.

Hon'ble Judges/Coram:

G.B. Pattanaik, J.

 Citation : AIR 1991 Ori 55

Print Page

Whether property received by widowed daughter from her father in lieu of maintenance will become her absolute property?

Hindu Law- Hindu Succession Act, 1956- Sec. 14(1)- Moral obligation,

when becomes legal obligation- Discussed

In this matter, argument of the counsel for the petitioner that interest of

Smt. Parag Devi under gift deed dated 17.07.1956 was due to her pre-existing

right of maintenance as such it was enlarged under Section 14(1) of Hindu

Succession Act, 1956 as held by Supreme Court in Jupudy Pardha Sarathy Vs.

Pentapati Rama Krishna and others passed in Civil Appeal No. 375 of 2007

decided on 6.11.2015, is also liable to be accepted. Supreme Court in

Laxmappa Vs. Balawa Kom Tirkappa Chavdi (Smt), (1996) 5 SCC 458, held

that the position of the married daughter is somewhat different. It is 

acknowledged that if the daughter is unable to obtain maintenance from her

husband, or, after his death, from his family, her father, if he has got separate

property of his own, is under a moral, though not a legal, obligation to maintain

her. The High Court has concluded that it was clear that the father was under an

obligation to maintain the plaintiff-respondent. Seemingly, the High Court in

doing so was conscious of the declaration made in the gift deed in which she

was described as a destitute and unable to maintain herself. In that way, the

father may not have had a legal obligation to maintain her but all the same there

existed a moral obligation. And if in acknowledgment of that moral obligation

the father had transferred property to his daughter then it is an obligation wellfructified.

In other words, a moral obligation even though not enforceable under

the law, would by acknowledgment, bring it to the level of a legal obligation,

for it would be perfectly legitimate for the father to treat himself obliged out of

love and affection to maintain his destitute daughter, even impinging to a

reasonable extent on his ancestral property. It is duly acknowledged in Hindu

law that the Karta of the family has in some circumstances, power to alienate

ancestral property to meet an obligation of the kind. Court would be rather

construe the said paragraph more liberally in the modern context having regard

to the state of law which has been brought about in the succeeding years.

Therefore, in court‟s view, the High Court was within its right to come to the

conclusion that there was an obligation on the part of the father to maintain his

destitute widowed daughter. 

IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)

Consolidation No. 738 of 2006

Decided On: 26.02.2016

Prem Kali Vs. Deputy Director of Consolidation Sitapur and Ors.

Coram:Ram Surat Ram (Maurya), J.

Print Page

Whether coparcener can file a suit to restrain manager of Joint Hindu Family from alienating family property?

 At the outset it is to be noticed that in a suit for permanent injunction under Section 38 of the Specific Relief Act by a coparcener against the father or Manager of the Joint Hindu family property, an injunction cannot be granted as the coparcener has got equally efficacious remedy to get the sale set aside and recover possession of the property. Sub-section (h) of Section 38 of Specific Relief Act bars the grant of such an injunction in the suit. Secondly, the plaintiff-respondents brought this suit for permanent injunction restraining their father, the defendant No. 1, from selling or alienating the property to the defendant No. 2 or any other person and also restraining the defendant No. 2 from proceeding with the suit for specific performance of the agreement to sell pending in the civil court. Thus the relief sought for is to restrain by permanent injunction the Karta of the Joint Hindu Mitakshara Family, i.e. defendant No. 1, from selling or alienating the house property in question. The defendant No. 1 as Karta of the joint Hindu family has undoubtedly, the power to alienate the joint family property for legal necessity or for the benefit of the estate as well as for meeting antecedent debts. The grant of such a relief will have the effect of preventing the father permanently from selling or transferring the suit property belonging to the joint Hindu Undivided Family even if there is a genuine legal necessity for such transfer. If such a suit for injunction is held maintainable the effect will be that whenever the father as Karta of the Joint Hindu coparcenary property will propose to sell such property owing to a bona fide legal necessity, any coparcener may come up with such a suit for permanent injunction and the father will not be able to sell the property for legal necessity until and unless that suit is decided.

8. The judgment in Shiv Kumar Mool Chand Arora v. Mool Chand Jaswant Singh MANU/PH/0183/1972 wherein it was held that a suit for permanent injunction against the father to restrain him from alienating the joint Hindu family property was maintainable has been off-set by the Division Bench in Jujhar Singh v. Giani Talok Singh (supra) wherein it has been held that a suit for permanent injunction by a coparcener against the father for restraining him from alienating the house property belonging to the joint Hindu family for legal necessity was not maintainable because the coparcener had got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale. Following this decision the High Court allowed the appeal holding that the suit was not maintainable reversing the judgment and decree of the Trial Court. We do not find any infirmity in the findings arrived at by the High Court.

Equivalent Citation : AIR 1988 SC 576

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1576 of 1987

Decided On: 13.01.1988

Sushil Kumar (Sunil)1 and Anr. Vs. Ram Prakash and Ors.

Hon'ble Judges/Coram:

B.C. Ray and K. Jagannatha Shetty, JJ.

Print Page

Whether alienation of ancestral property done after commencement of Hindu Succession amendment Act 2005 is protected?

 In the present case, so called alienation took place
after 9.9.2005, the date fixed for giving effect to the Act. The
provision of section 6 shows that such transaction is not protected
by the Act.
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 47 OF 2013
Babu Dagadu Awari, V  Baby w/o. Namdev Lagad,
Citation;2015(7) ALLMR 358
Dated;24-3 2014

Print Page

Daughter will not get right in property of joint Hindu family where the disposition or alienation including any partition has taken place before December 20, 2004;

 The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.

12. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) where testamentary disposition of property has been made before December 20, 2004. Sub- section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been effected before December 20, 2004. For the purposes of new Section 6 it is explained that `partition' means any partition made by execution of a deed of partition duly registered under the Registration Act 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for determining the non- applicability of the Section, what is relevant is to find out whether the partition has been effected before December 20, 2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court

Delhi High Court

Rakhi Gupta vs Zahoor Ahmad & Ors on 29 November, 2012

Print Page