Property is one of the crucial parts of every family and its transfer is always
been a perplexing issue. The transfer of property and its provision are given in
the act popularly known Transfer of Property Act[i] but how there can be
unauthorized alienation of property can be critically evaluated based on Hindu
Alienation of property means the transfer of property utilizing any way from one
person to another, and therefore unauthorized alienation can be defined as a
transfer of property from one person to another without any lawful justification
which eventually leads to the invalidation of such transfer.
This article will
critically evaluate that if a property has been alienated without any authority
then what are the rights available with the coparcener[ii] of the property? We
are well acquainted with the fact that the owner of any property majorly does
have 3 rights i.e. Right to enjoy, the Right to be in possession, and the Right
to dispose. Therefore we can say that the right to alienate the property lies
with the owner of the property only.
Alienation of property in context with the Indian Families:
In Indian families mostly there are joint families and property cannot be
alienated without the consent[iii] of the other members. In joint families, each
member of families does have a substantial amount of contribution towards the
efficient working of the family and therefore alienation of the property without
their consent is not a right thing and hence not legally valid. Such kind of
alienation can often be regarded as an invalid alienation.
In the joint family the Karta [iv] can be regarded as the head of the family, he
is the manager of the Hindu family. Therefore, their rights are a bit different
from the other members of the family. But, that does not means coparcener do not
have any rights, well they also have some kind of rights within the family.
have a communal interest and possession, they have a right to claim joint
possession, and they can restrain if there is improper use of the property along
with this there are many other rights with the coparcener with makes them a
vital part in the Hindu family. But, Karta remains the head and possesses some
special place in the family and enjoys different rights along with various
In the case of Kandasami vs. Somakanda
[v] it was held by the court of law that
the Karta can alienate the property in the Hindu Undivided Family. In such kind
of alienation there must be the consent of all the coparcener of the family.
After obtaining the consent of the coparcener the property can be alienated, the
only thing to take into consideration is that the coparcener must be the major
according to the law they are subjected.
Can a Female be a Karta of a Hindu Family?
As we are well aware of the fact that Karta is the head of the family and the
eldest coparcener. Karta is a caretaker of the family and does have many
responsibilities to look after the welfare of the family. Normally the eldest
male member of the family becomes the Karta. But, the question arises when there
is no eldest male in the family, or no male is present what will happen in that
circumstances? Can a female member of a Hindu Joint Family become a Karta?
Before the Hindu Succession (Amendment) Act 2005, it was held by many courts
that only a coparcener can become a Karta of a Hindu Joint Family, as before the
amendment act of 2005 females were not recognized as the Karta. But after Hindu
Succession (Amendment) Act 2005, it was held that a Hindu daughter is required
to be treated as a coparcener. The requirement to become a Karta is the
coparcener therefore females can become Karta of Hindu Families.
In the case of Commissioner of Income Tax v. Seth Govindram Sugar
[vi] Mill Ltd.
it was held by the court of law that only a coparcener can become Karta of a
Hindu Family. This judgment was given back then before the Hindu Succession
(Amendment) Act 2005 and hence did not recognize females as the Karta of the
However, in the case of Sujata Sharma v. Mannu Gupta
[vii] it was held by
the Delhi High Court that after the amendment of 2005 Hindu Women can be
recognized as a coparcener of Hindu Undivided Family considering them as a Karta
is not enough under Mitakshara Law School they have to be treated equally as
that of any son or other. Therefore in the nutshell, we can say that after the
Hindu Succession (Amendment) Act 2005, female members can become the Karta of
the Hindu Undivided Family.
Powers of Karta due to which occasionally unauthorized alienation takes
- Power to alienate the property:
The Karta has a supreme power to alienate the
property, i.e. Karta can transfer the property through any means whether it can
be a gift, mortgage, transfer, etc., and the transfer can be legally valid
subject to the provisions of law and nature of transfer due to which sometimes
unauthorized alienation takes place.
Karta can exercise the power of Alienation under 3 circumstances [viii]:
- Legal Necessity
- Benefit of Estate
- Indispensable duties
- Representation Power:
The Karta can be regarded as the sole representative of
the Hindu Undivided Family, in any matter ranging from socio, economy, or any
other kind of legal issue. If the suit is being filed by any family member it
has to be filed in the name of Karta.
If any judgment is given against or on behalf of the Karta then that Judgment
has an automatically binding effect on all the members of the family, this shows
us that the Karta do have a power of representation on behalf of the other
- Power of Management:
Karta does have the power of management, being the head
of the family Karta can do all sorts of things to manage the family for the best
interest. He can spend the income of that family as he does have the power of
- Power over the income of the members:
The Karta of Hindu Undivided Family do
have the power and a right to take the income of the other members of a family
who earn outside by the means of any job or any service. All the members have to
hand over their earnings to the Karta of the family and Karta will eventually
allot the money to the members according to the needs of each member.
- Power to compromise:
The Karta has the power to compromise the entire dispute
related to the family matter. He is the sole person with whom the power to
resolve the conflict which arises between the other family or among the member
of the family. If the conflict could not be resolved by Kata then in that
circumstance Karta can take the help of any other authority and the decision
given by the authority does have a binding effect on all the members of the
- Power to Contract Debt:
The Karta of the family do has a right to enter into
the contract for the welfare of the family or any purpose of the family. When a
Karta takes a loan for the family than in that circumstance the individual
member of the family can also be sued.
Remedies available with Coparcener when there is unauthorized alienation of the
Alienation of property can be done by the Karta of the family and the alienation
can arise under 3 circumstances that are mentioned earlier. Sometimes, the
alienation of property is being done as such it is not considered to be a valid
alienation that arises when such alienation is being done without the expressed
authorization of all the coparceners. If the Karta of the family steps out from
his limit and makes alienation it is not in the best interest of the coparcener.
In those circumstances, such alienation can be challenged by the coparcener who
has an interest in the property.
Time Limitation for challenging the unauthorized Alienation
The Limitation Act, 1908[ix] (Repealed by Act 36 of 1963), therefore Limitation
act prescribes the time limit within which the coparcener can challenge the
unauthorized alienation before it becomes time-barred.
A son whose father has made unauthorized alienation of property, in that case, a
son can challenge his father's alienation in 12 months. However, the other
coparcener of the family can challenge the unauthorized alienation within 6
[Burden of proof] [x] in case of unauthorized Alienation
In case of unauthorized alienation Burden of proof lies on Alienee. Alienee is
the person in whose favor Karta has made the transfer. The person to whom the
property has been transferred that person has to prove that the transfer is
valid to transfer. He has to prove that the property which has been transferred
by the Karta is because there was the Legal necessity for such kind or transfer;
secondly, the alienation by Karta in favor of the benefit of the estate lastly
if alienation is done to perform indispensable duties in this alienation by
Karta is valid.
If the Alienee succeeds in the action of proving these facts
then alienation will be considered valid alienation. Although Alienee is a
stranger to the member of the family and he doesn't know the internal matter of
the family it's a bit tough for him to conclude whether the alienation that is
being done by Karta falls under the area of the three categories. Thus he needs
to critically evaluate every material fact before the transfer of property as
the burden of proof lies on him.
Thus in the nutshell, we can conclude to the fact that the burden of proof in
case of unauthorized alienation lies with the Alienee.
From the above discussion, we can conclude the fact that property is the most
vital and necessary part of any family, and alienation of that property by Karta
without the consent of other coparceners would often lead to conflict and
inconvenience among the members of a family. The Karta holds the Supreme
position in the family and is the sole manager of the family, the whole family
is represented by the person and that person is the Karta of the Hindu Undivided
But, every coparcener does have a full right to use their property in
the way they want and their right which is being carried with the property
cannot be snatched by the Karta by the means of unauthorized alienation. The
right of Karta to alienate the property under three circumstances is there which
include alienation in case of legal necessity, alienation in case of benefit of
the estate, and lastly in case of performance of indispensable duties but these
circumstances and conditions are not clear and the scope could be further
increased to avoid any kind of conflict.
The burden of proof in case of unauthorized alienation lies under the Alienee
but it's important thing to note that the burden of proof should be shifted to
some other person. Under this circumstance, Alienee is merely a stranger and the
burden of proof lies on him solely and would not solve the overall problem of
the case. Therefore, the ending point of this critical analysis is that
alienation of property is one of the crucial concepts of Hindu law whose
significance is prevailing in today's generation and the significance is further
going to expand shortly.
- Transfer of Property Act, 1882, Act no. 4 of 1882
- Hindu Succession Act, 1956, Sec. 6, Act no. 30 of 1956
- The Indian Contract Act, 1872, Sec. 13, Act no. 9 of 1872
- Supra note 2
- Kandasami Asari vs Somaskanta Ela Nidhi Limited, (1910) 20 MLJ 371
- Commissioner Of Income Tax vs. Seth Govindram Sugar Mills Ltd, 1966 AIR 24
- Sujata Sharma v. Mannu Gupta 2015 SCC Del 14424
- Dr. Paras Diwan, Modern Hindu Law 328 (2016)
- Limitation Act, 1908, Act no. 9 of 1908
- Indian Evidence Act, 1872, section 101-103, Act no. 1 of 1872