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.

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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.

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Notes on changes brought about by Hindu Succession( Amendment) Act,2005

Hindu succession amendment Act 2005 has brought about following important changes:

1) Equal rights for daughters- After 2005 amendment daughter of a coparcener becomes by birth, a coparcener in her own right and has same rights and liabilities as a son.

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2) Doctrine of pious obligation abolished;

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Whether son is liable to pay father's debt if father is discharged insolvent?

  As regards the first contention, there can be no doubt that if the decree was against Nandji alone, the effect of the order of discharge was to extinguish the debt. Section 44(2), Provincial Insolvency Act, is decisive on the point. It lays down that "save as otherwise provided by Sub-section (1) an order of discharge shall release the insolvent from debts provable under the Act." For the present purpose the provisions of Sub-section (1) are not relevant and need not be referred to. Mr. Mukherji on behalf of the respondent suggests that though by virtue of the provisions of Section 44(2), Provincial Insolvency Act, the debt payable by Nandji might be extinguished, the sons' pious obligation nevertheless remained. This is a proposition which it is difficult to understand.

6. The sons' pious obligation arises on account of the existence of the father's debt. If the debt itself is extinguished, the very foundation of the pious obligation is gone.

Citation : AIR 1940 Pat 149

IN THE HIGH COURT OF PATNA

Decided On: 29.08.1939

Nathuni Prasad and Ors.
Vs.
Firm Radha Kishun Dutt Rai

Coram:
Chatterji and Rowland, JJ.

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Basic concept of "Antecedent" debt in Hindu Law

"Antecedent" debt means antecedent in fact as well as in time. The debt must be independent of and not part of the transactions impeached. The debt may be a debt incurred In connection with a trade started by the father. The father alone can alienate the sons' share in the case of joint family. The privilege of alienating the whole of joint family property for payment of an antecedent debt is a privilege only of the father, grandfather and great grandfather qua the son or grandson only. No other person has any such privilege. 

Supreme Court of India

Prasad & Ors vs V. Govindaswami Mudaliar & Ors on 8 December, 1981

Equivalent citations: 1982 AIR 84, 1982 SCR (2) 109

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