COPARCENER’S POWER OF ALIENATION
Introduction
The notion of coparcenary property and its alienation are deep rooted in Hindu mythology. According to
Hindu mythology, male descendants are coparceners of undivided joint family property, however with
wide sweeping changes introduced in the composition of joint family by way of Hindu Succession
(Amendment) Act, 2005, now the daughter of a coparcener is entitled to be a coparcener in her own right
and in the same manner as a son.
What is Coparcenary?
Coparcenary is a term used in matters related to Hindu Succession Law. It refers to a person who has the
capacity to assume a legal right in his ancestral property by birth. It means ‘unity of title, possession and
interest’. It is purely a creation of law; it cannot be created by the act of parties, except by adoption. It is
directly derived from the concept and practice of Hindu undivided family. Traditionally, it included only
male members, though this has changed with legal reforms such as the Hindu Succession (Amendment)
Act, 2005, which recognized daughters as coparceners as well.
Ingredients of coparcenary
• Existence of property (Ancestral)
• Male and female members (Only Daughters)
• Right to claim partition.
• Four generation-rule.
• Collective enjoyment.
• Interest by birth
• Survivorship (Abolished under 2005 Amendment Act H.S.A, 1956)
Alienation of Coparcenary Property
Alienation of coparcenary property is an essential element of the Hindu Law and more precisely
the Hindu Succession Act, 1956. All the transfers of the intestate property, after the death of a male
ancestor in a Hindu joint family, are controlled by the rule of inheritance. Alienation of such property can
be transferred as gifts, sale and mortgages. Neither the Karta nor any other coparcener individually
possesses any power to alienate joint family property or his interest within the joint family property,
though under Dayabhaga School, a coparcener has the right of alienation over his interest in the joint
family property.
Alienation of separate property as any Hindu whether governed by any school has full and absolute
powers over it. Such alienation is governed by transfer of property act, 1882.
Who may Alienate Coparcenary Property
The following persons are capable of alienating/transferring a coparcenary property and thus possess the
power in this regard:
I. Father’s power of alienation
Dayabhaga father had full power of alienation over all properties whether self-acquired or ancestral both
movable and immovable. However, it is now a settled law that Mitakshara father has no greater power
over joint family movable property than over joint family immovable property. Only power of the father
that has survived is the power of making gift of love and affection. Another power that has been created
by the judicial decisions is the power of alienating joint family property for discharging his personal debts.
II. Gifts of love and affection:
According to Mitakshara:
The father is empowered to “make a gift of love and affection” of small portion of movable joint family
property. Such gifts may be made by him to his:
• Own wife;
• Daughter;
• Son in law; or
• Any other close relation.
III. Karta’s power of alienation:
The power cannot be exercised by any member other than the Karta. The joint family property can be
alienated on three grounds:
• Legal necessity
• Benefit of estate
• Indispensable duty (religious & pious activities)
Coparcener’s power of alienation
The Mitakshara School did not permit individual alienation by coparceners. The law of coparcener’s power
of alienation is the outcome of judicial decisions. The first inroad was made when it was held that an
individual money decree against a coparcener could be executed against his undivided right within the
joint family property We may divide this subject under two heads:
➢ Involuntary Alienation
This refers to the alienation of the undivided interest in the execution suits. The Hindu sages greatly
stressed upon the payment of the debts. The courts laid emphasize on this Hindu legal principle and
started its execution on personal money decrees against the joint family interest of the judgment-debtor
Coparcener.
➢ Voluntary alienation
Once it was accepted that the undivided of a coparcener can be attached and sold in execution of money
decree against him, then the next step involves voluntary alienation. Voluntary alienation includes:
• Gifts
• Sale and mortgage
• Renunciation
Coparcener’s right to challenge alienation
When the father, the Karta, the coparcener or the sole surviving coparcener overstep their power, the
alienation can be challenged. It can be challenged the moment the person entitled to challenge comes to
know of it and till it is not barred by limitation. When alienation is challenged the onus to prove is on
the alienee to show that it was for a valid purpose. When sons challenge alienation made by father for
discharging his personal debts, it is for the alienee to show that the debts was taken by the father, though
if sons assert that the debt was tainted (thereby admitting that their father did take the debt), the burden
of proof that the debt was tainted is on the sons.
i. Coparcener who was in the womb at the time of alienation
A coparcener who is in the womb of his mother at the time of alienation is empowered set aside such
alienation after his birth. Under Hindu Law, a son conceived is in every aspect equal to a son born. This
also applies to an alienation made by a sole surviving coparcener.
ii. After born coparcener
An alienation of the joint family property made without any legal necessity by a sole coparcener or by
Karta who has no male issue is valid. Such alienation cannot be challenged by a son born subsequently.
If alienation is made by a father who has sons and before all the sons die another son born to him, even
after the death of all the sons existing at the time of alienation, the subsequently born son can question
the alienation, provided the right is not barred by limitation. The overlapping of lives gives him this right,
it is necessary that at the time of his conception there must have existed an unexpired right among some
coparceners (even in one) to challenge the alienation.
iii. Adopted Son
Adopted son subsequent to alienation has no right to challenge alienation, even if the alienation was
invalid on the date when it was made.
