It is common knowledge that the Karta of an HUF often executes agreement/sale
deed of an immovable property belonging to the HUF on the firm conviction that
he is legally entitled to execute the said deed on account of legal necessity.
The said deeds are often assailed/challenged as unenforceable/void by the other
coparceners on the ground that the said immovable property belonged to the joint
Hindu family and a transfer deed cannot be executed by the Karta alone without
the signatures of all the coparceners.
It is indeed worrying that the Civil
Courts are flooded with such cases praying for annulment of the sale deeds
executed earlier by the Karta of the HUF or for restraining the Karta from
executing the transfer deed. In fact, this proposition is being used as a
device/ruse to extract money from the purchaser in the name of forged litigation
by the other coparceners at the instance of the seller/Karta himself.
It is not only a convention but a settled proposition that as the head of the
family, the Karta's power of management of the family is almost absolute. He may
manage the family affairs, family property and family business in such manner as
he may deem fit and no one can question his management. However, he cannot deny
maintenance or use and occupation of the HUF property to any coparcener.
The issue entails two legal questions. One is the rights & authority of the
Karta to transfer the immovable property belonging to the HUF. The second is the
existence & scope of a legal necessity necessitating the said transfer.
A Karta has power to alienate for value/consideration the joint family property
in three special cases- legal necessity, benefit of estate or for the
performance of indispensable duties. The presence of these circumstances
generally depend on the particular facts and circumstances and there are no
definite rules as to what falls under these categories.
For these purposes, a Karta need not take consent of other coparceners of the family, since he has
absolute right to manage the HUF property. The only reasonable limitation that
can be imposed on the Karta is that he must act with prudence, which implies
caution as well as foresight and excludes hasty, reckless and arbitrary conduct.
If any of the three special cases referred to above exist, then in such
circumstances, a coparcener will not have a right to obstruct the alienation of
HUF property since it will tantamount to interference with the act of management
of the Karta of the joint family affairs. Therefore, a coparcener will not
normally be able to move the court to obtain relief by grant of an injunction
restraining the Karta from alienating the coparcenary property.
However, it does
not imply that coparceners cannot do anything in case the Karta is unnecessarily
or arbitrarily alienating property. In such circumstances, the coparceners have
a right to challenge the alienation in a court of law and then the burden of
proof will lie on the person alienating others to prove that there was in fact
presence of legal necessity, benefit of estate or indispensable duties.
if the Karta wants to alienate the HUF property for purposes other than the
three mentioned above, then the consent of all the coparceners is required. If
the Karta goes ahead with the alienation without taking consent of all the other
coparceners, the alienation becomes voidable to the extent of the undivided
share of the non-consenting coparcener.
The Apex Court in a catena of cases has settled that the rights of the Karta to
execute an agreement to sell or sale deed of a joint Hindu family property are
beyond cavil. The Apex Court in Sri Narayan Bal and Others v. Sridhar Sutar and
8 SCC 54 held that a joint Hindu family is legally capable of
acting through its Karta or adult member of the family in management of the
joint Hindu family property.
The Apex Court has consistently held in a number of
cases that a coparcener has a right to claim a share in the joint Hindu family
estate but he cannot seek injunction against the Karta restraining him from
dealing with or entering into a transaction from sale of the joint Hindu family
property. However, post alienation he has a right to challenge the alienation if
the same was not for legal necessity or for betterment of the estate.
has held, in clear terms, that where a Karta has alienated a joint Hindu family
property for value either for legal necessity or benefit of the estate it would
bind the interest of all undivided members of the family even when they are
minors or widows.
It would be apposite to refer to Kehar Singh (D) through Legal Representatives
and Others v. Nachittar Kaur and Others
(2018) 14 SCC 445 wherein the Apex Court
has referred to Mulla on Hindu Law and the concept of legal necessity and
20. Mulla in his classic work Hindu Law while dealing with the right of a
father to alienate any ancestral property said in Article 254, which reads as
254. Alienation by father:
A Hindu father as such has special powers of
alienating coparcenary property, which no other coparcener has. In the exercise
of these powers he may:
21. What is legal necessity was also succinctly said by Mulla in Article 241,
which reads as under:
241. What is legal necessity:
The following have been held to be family
necessities within the meaning of Article 240:
- make a gift of ancestral movable property to the extent mentioned in
Article 223, and even of ancestral immovable property to the extent
mentioned in Article 224;
- sell or mortgage ancestral property, whether movable or immovable,
including the interest of his sons, grandsons and great-grandsons therein,
for the payment of his own debt, provided the debt was an antecedent debt,
and was not incurred for immoral or illegal purposes (Article 294).
- payment of government revenue and of debts which are payable out of the
- maintenance of coparceners and of the members of their families;
- marriage expenses of male coparceners, and of the daughters of
- performance of the necessary funeral or family ceremonies;
- costs of necessary litigation in recovering or preserving the estate;
- costs of defending the head of the joint family or any other member
against a serious criminal charge;
- payment of debts incurred for family business or other necessary
purpose. In the case of a manager other than a father, it is not enough to
show merely that the debt is a pre-existing debt;
The above are not the only indices for concluding as to whether the alienation
was indeed for legal necessity, nor can the enumeration of criterion for
establishing legal necessity be copious or even predictable. It must therefore
depend on the facts of each case. When, therefore, property is sold in order to
fulfil tax obligations incurred by a family business, such alienation can be
classified as constituting legal necessity.
(See Hindu Law by Mulla 22nd Edition)
26. Once the factum of existence of legal necessity stood proved, then, in our
view, no co-coparcener (son) has a right to challenge the sale made by the Karta
of his family. The plaintiff being a son was one of the co-coparceners along
with his father Pritam Singh. He had no right to challenge such sale in the
light of findings of legal necessity being recorded against him. It was more so
when the plaintiff failed to prove by any evidence that there was no legal
necessity for sale of the suit land or that the evidence adduced by the
defendants to prove the factum of existence of legal necessity was either
insufficient or irrelevant or no evidence at all.
The Apex Court in the case Subhodkumar vs. Bhagwant Namdeorao Mehetre
SCC 571 held thus:
A Karta has power to alienate for value the joint family property either for
necessity or for benefit of the estate. He can alienate with the consent of all
the coparceners of the family. When he alienates for legal necessity he
alienates an interest which is larger than his undivided interest. When the
Karta, however, conveys by way of imprudent transaction, the alienation is
voidable to the extent of the undivided share of the non-consenting coparcener
It is pertinent that the Apex Court in case of Sunil Kumar and another v. Ram
Parkash and others AIR 1988 SC 576 it has been held that the right to obstruct
alienation is different from the right to challenge the alienation. The
coparcener has a right to challenge the alienation. However, he has no right to
interfere in the act of management of the joint family affairs. In this
connection, the Court has held thus:
21. In a Hindu family, the Karta or manager occupies a unique position. It is
not as if anybody could become manager of a joint Hindu family. As a general
rule, the father of a family, if alive, and in his absence the senior member of
the family, is alone entitled to manage the joint family property. The manager
occupies a position superior to other members. He has greater rights and duties.
He must look after the family interest. He is entitled to possession of the
entire joint estate. He is also entitled to manage the family properties. In
other words, the actual possession and management of the joint family property
must vest in him. He may consult the members of the family and if necessary take
their consent to his action but he is not answerable to every one of them.
22. The legal position of Karta or manager has been succinctly summarised in the
MAYNE'S Hindu Law (12th Ed. Para 318) thus:
318. Manager's Legal position The position of a Karta or manager is sui generis:
the relation between him and the other members of the family is not that of
principal and agent, or of partners, it is more like that of a trustee and
cestui que trust. But the fiduciary relationship does not involve all the duties
which are imposed upon trustees.
23. The managing member or Karta has not only the power to manage but also power
to alienate joint family property. The alienation may be either for family
necessity or for the benefit of the estate. Such alienation would bind the
interests of all the undivided members of the family whether they are adults or
minors. The oft quoted decision in this aspect, is that of the Privy Council in
Hanuman Parshad v. M.T. Babooee
(1956) 6 Moo Ind. App. 393.
There it was
observed at p. 423:
- The power of the manager for an infant heir to charge
an estate not his own is, under the Hindu law, a limited and qualified power. It
can only be exercised rightly in case of need, or for the benefit of the
estate. This case was that of a mother, managing as guardian for an infant heir
A father who happens to be the manager of an undivided Hindu family
certainly has greater powers to which I will refer a little later. Any other
manager however, is not having anything less than those stated in the said case.
Therefore, it has been repeatedly held that the principles laid down in that
case apply equally to a father or other coparcener who manages the joint family
Remedies against alienations:
24. Although the power of disposition of joint family property has been conceded
to the manager of joint Hindu family for the reasons aforesaid, the law raises
no presumption as to the validity of his transactions. His acts could be
questioned in the Court of law. The other members of the family have a right to
have the transaction declared void, if not justified.
When an alienation is
challenged as being unjustified or illegal it would be for the alienee to prove
that there was legal necessity in fact or that he made proper and bona fide
enquiry as to the existence of such necessity. It would be for the alienee to
prove that he did all that was reasonable to satisfy himself as to the existence
of such necessity.
If the alienation is found to be unjustified, then it would
be declared void. Such alienations would be void except to the extent of
manager's share in Madras, Bombay and Central Provinces. The purchaser could get
only the manager's share. But in other provinces, the purchaser would not get
even that much. The entire alienation would be void. [Mayne's Hindu Law 11th ed.
The Apex Court recently in the case of Beereddy Dasaratharami Reddy Vs. V.
Manjunath and Anr.
(Civil Appeal No. 7037 of 2021 decided on December 13, 2021)
has dealt with identical issue and held thus:
There are no specific grounds that establish the existence of legal necessity
and the existence of legal necessity depends upon facts of each case. The Karta
enjoys wide discretion in his decision over existence of legal necessity and as
to in what way such necessity can be fulfilled. The exercise of powers given the
rights of the Karta on fulfilling the requirement of legal necessity or
betterment of the estate is valid and binding on other coparceners.
Thus it settled law that a Karta of a HUF can validly & legally enter into an
agreement for sale or execute a sale deed in respect of any immovable property
owned by the HUF for legal necessity and the same shall be binding on the other
coparceners of the HUF. However, in order to contain litigation, the purchasers
of immovable property owned by HUF should ascertain to make all adult
coparceners are made party to the deed or at-least witnesses to the deed. Once
this precaution is taken any suit for assailing the transfer deed would not be
Written By: Inder Chand Jain
Email: [email protected]
, Ph no: 8279945021