alienation of property in hindu law

| December 10, 2020

a situation with respect to family members or their property which requires money. The Dāyabhāga was the strongest authority in Modern British Indian courts in the Bengal region of India, although this has changed due to the passage of the Hindu Succession Act of 1956 and subsequent revisions to the act. Termes de la … The rule relating to a coparcenary holds that until one is not removed by more than four degrees from the last property holder. If a son is born to such a coparcener after the alienation, such a son cannot object to such an alienation. Practice Notes and Conclusions These were conditions where she needed money for making donations or performing rituals in memory of her late husband. 1) Unobstructed heritage:-Property in which a person acquires an interest by birth is called unobstructed heritage. This Act brought about revolutionary changes in the Hindu Law of all schools, and affected not only the law of coparcenary but also the law of partition, alienation of property, inheritance and adoption. The burden of proof is on the alienee to prove that it was for a valid purpose. Under pure Hindu law, a gift cannot be made in favour of a person who was not in existence at the date of the gift. Privacy Policy3. 1) Unobstructed heritage:-Property in which a person acquires an interest by birth is called unobstructed heritage. Thus, Legal Necessity doesn’t mean actual compulsion; it means pressure upon estate which may in law may be regarded as serious and sufficient. transfer) coparcenary property has already been discussed above. Ans: Alienation of coparcenary property is an inherent element of the Hindu Law and more precisely the Hindu Succession Act, 1956. Alienation is of vast practical utility as it gives a way of using the joint family property for the common use of the family and it is a classic example of the unique position of the hindu joint family which is always ready to help its members in times of need and who work together for common benefit. – A gift of property is not invalid because the donor reserves the usufruct of the property to himself for life. Thus, the Coparceners’ alienation power can be categorized under the following heads: When all the Coparceners die except one, such a coparcener is regarded as the sole surviving Coparcener. Transfer of property without any justification is the ground for studying such laws. Differing from Allahabad High Court, a full Bench of Mumbai High Court in Hem raj vs. Nathan (1935) 37 BOMLR 427, took an intermediate view and held that “property cannot be alienated merely for the purpose of enhancing its value, though, at the same time, it would not be correct to say that no transaction can be for the benefit of estate which it is not of a defensive character”. What are the Six Different Types of Ancestral Property under the Hindu Law? Alienation of Coparcenary Property Part 1 | Who can Alienate Coparcenary Property | Lectures on Family Law. Likewise, many types of intangible personal property, such as a patent or trade mark, are alienable forms of property. Such situations may include famine, epidemic, earthquake, floods, etc. it must not be for an immoral, illegal purpose. Such alienations are governed by the Transfer of Property Act. Alienation of separate property by a Hindu, whether governed by the Mitakshara School or any of its sub-schools or the Dayabhaga School, has full and absolute powers over it. Performance of necessary ceremonies, sradhs and upanyana. ... Alienation– It means the right to dispose of the property. Alienation of Coparcenary Property: Family Law Notes, Prolawctor Daily Current Affairs Insights | 09 December 2020, Prolawctor Daily Current Affairs Insights | 08 December 2020, What is Armed Forces Flag Day Fund (7TH DECEMBER), National Webinar on Liberty Constitutional Perspective by BSK Legal: Register by 13 December, Prolawctor Daily Current Affairs Insights | 07 December 2020, Prolawctor Daily Current Affairs Insights | 6 December 2020, Prolawctor Daily News Update | 05 December 2020, Prolawctor Daily News Update | 04 December 2020, PURSUING THE CAREER OF SOLICITOR IN ENGLAND FOR INDIAN LAW STUDENTS. However, as held in the case of Pandurang Mahadeo Kavade v. Annaji Balwant Bokil AIR 1971 SC 2228, the alienee is discharged of the burden to prove existence of legal necessity, if the coparcener plaintiff fails to allege absence of legal necessity and no issue is framed in respect of the same during the trial. Firstly it gives an introduction to Hindu joint family and alienation of the property owned by them in a common ownership. In this case the judges observed “No indication is to be found in any of them (ancient texts) as to what is, in this connection, the precise nature of things to be included under the descriptions ‘benefit to the estate’…, The preservation however of the estate from extinction, the defense against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundations, there and such like things would obviously be benefits.”. Hindu law holds various unique features with reference to family institutions and the joint family system is a very important aspect in understanding the functionality of this mechanism. Even his male descendants cannot claim any interest in that property by birth. While the Hindu Succession Act, 1956 (“HSA”) and other legislations are silent on the aspect of the definition of “ancestral property”, the Hon’ble Supreme Court of India (“SC”) has placed its reliance on the Mitakashara school of Hindu law. It also covers the modes in wh The Supreme Court later added its own observation as to what constitutes benefit, in the case of Balmukund vs. Kamlawati & Ors 964 AIR 1385; “for the transaction to be regarded as for the benefit of the family it need not be of a defensive character. Modes of Alienation. For a Thorough Knowledge on Hindu Law one must sit with these great masters. Similarly, a sole surviving coparcener can dispose of the property by will. Persons not entitled to enforce partition under the Dayabhaga Law are: Sons, Grandsons and great grandsons have no birth interest in ancestor property against their father, so there is no right for partition. ... Alienation of Endowed Property. In Gallamudi vs. Indian Overseas Bank 1978 A.P. The law relating to Coparcener’s alienation power is a child of judicial legislation. It is to be remembered that no other coparcener can alienate coparcenary property, unless he is authorised to do so. A sole surviving coparcener is entitled to dispose of the coparcenary property as if it was his separate property. In such a scenario, the suit for challenging the sale on grounds of absence of legal necessity must either be brought within; In the landmark case of Hanoomaprasad vs. Babooe, 1856 6 MIA 393, it has been held that the burden of proof whether the transaction is for legal necessity, benefit or for indispensable duty, is on alienee. To control the income and expenditure of the joint family property. This is despite their unanimity the father was fully empowered to dispose of his separate movable property. He has got the absolute right of alienation of such property. Legal necessity was held by Hindu law as a condition where the widow had to sell her deceased husband's property. Such property consists of However, as the will operates from the date of the death of the testator, if a coparcener comes into existence before his death, the will would not take effect, and the property would pass by survivorship. Article 126 of the Indian Limitation Act, 1908 sets the period of limitation for a suit by son challenging alienation made by the father as 12 years, Article 144 gives the period for alienation made by Karta as 12 years, in case of mere declaration the period is 6 years. (3) The father, to the extent mentioned below. 12 (twelve) years from the date on which alienee assumes possession of the coparcenary property, if the suit is brought by a hindu governed by mitakshara law to set aside father's alienation of such coparcenary property 11. By proof that he made proper and bona fide inquiries about the existence of legal necessity and that he did all that was reasonable to satisfy himself as to the existence of legal necessity. This video is about meaning of Alienation and also about person who can alienate Coparcenary property. Under the stated Act, the ideology of all the faculties of Hindu Law turned into amended in a manner so that it will supply extra rights to the Hindu women. To the students and beginners this is a list for their future reading & specialisation. If you continue to use this site we will assume that you are happy with it. Hindu Disposition of Property act 1916, and; The Hindu Transfers and Bequests (City of Madras) Act 1921; Reservation of life interest. The concept of stridhan was recognized in Hindu law from the earlier times itself, but at that time they do not have full ownership over the property. In broad sense legal necessity includes ‘benefit to estate’. In property law, alienation is the voluntary act of an owner of some property to dispose of the property, while alienability, or being alienable, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. About Us. In the exercise of this power— This transfer of property can be through gifts, sales and mortgages. However, under the Dayabhaga school (in this school of thought the male descendants do not hold any right over the ancestral property after the ancestor’s demise), a Coparcener has the alienation right over his right in the alienation property. 20. We have now the codified Hindu Law in the form of Acts and also the uncodified Hindu Law, and also the … This way the four-degree rule continues.Therefore, any intestate ancestral property acquired by the member of a Hindu joint family in course of coparcenary shall be deemed as Coparcenary property. When the joint family property passes into the hands of the sole surviving coparcener, it assumes the character of separate property, so long as he doesn’t have a son, with the only duty on him being that of maintenance of the female members (the widows) of the family. Third ground upon which the property owned by them in a serious criminal charge of the.... joint Hindu family, expenses for medical care for the sake of the coparcenary property therefore. Were conditions where she needed money for making donations or performing alienation of property in hindu law in of. Submitted by visitors like you to provide an online platform to help students to discuss anything everything! 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