Family Law II - Alienation of Coparcenary Property

May 30, 2024

Lecture Notes: Family Law II - Alienation of Coparcenary Property

Instructor: Professor Dr. Vasim I Khan

Institution: Sri Shivaji Law College, Parbhani, Maharashtra

Key Topics Discussed:

  1. Definition of Alienation

    • Alienation means transfer of ownership and possession of property.
    • Ownership, possession, rights, and liabilities are transferred to another person.

  2. Who Can Alienate Coparcenary Property?

    • Only certain persons are entitled to transfer coparcenary property, not any coparcener.

Specific Entitled Persons and Their Powers

  1. Father as Karta (Manager) of the Family

    • Has wider powers to alienate property compared to a normal karta.
    • Binding on all sons, including infant sons.
    • Can alienate property for:
      • Legal necessity: e.g., payment of government revenue, education, maintenance, legal expenses.
      • Benefit of the estate: e.g., selling property that is costly to maintain relative to its income.
      • Gift within reasonable limits: For love and affection to close family members (e.g., wife, children).
      • Pious purposes: Within reasonable limits for religious or charitable reasons.

  2. Karta's Power of Alienation (Normal Manager)

    • Without legal necessity, alienation is voidable, not void.
    • Can be challenged by other coparceners unless they consent.
    • Can alienate property for:
      • Legal necessity.
      • Benefit of the estate.
      • Religious duties: For performance of religious ceremonies.

  3. Alienation by the Whole Body of Coparceners

    • If all coparceners are adults, they can collectively transfer property even without legal necessity.
    • Consent must be unanimous; otherwise, binding only on consenting members.

  4. Alienation by the Sole Surviving Coparcener

    • Property becomes self-acquired if only one coparcener survives.
    • Sole survivor can transfer property without restrictions.
    • Alienation by the sole survivor cannot be challenged by subsequently born/adopted sons.
    • Can dispose of property by will; will takes effect upon death unless new coparcener is added before death.

Summary

  • Different rules and authorities apply for alienation of coparcenary property depending on who holds the power (father as karta, normal karta, whole body, or sole survivor).
  • Legal necessity, benefit of the estate, and religious duties are common grounds for alienation.
  • Consent of all coparceners is crucial in many cases to avoid disputes.

End of Lecture Notes