Hindu Coparcnary

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INTRODUCION

A Hindu joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters . But a Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property  These are the sons, grandsons and the great grandsons of the holder of joint property for time being, in other words the holder in unbroken male descent. The essence of coparcenary under Mitakshara law is unity of ownership. The interest is of fluctuating nature, capable of being enlarged by deaths in family and liable to be diminished by births in the family . It is only on partition that he becomes entitled to a definite share. Joint family property is purely the creation of Hindu Law, and those who own it are calledcoparceners .

Alienation means transfer of property, such as gifts, sales and mortgages. Alienations have an added importance in Hindu Law, as, ordinarily, neither the Karta nor any other coparceners singly, possesses full power of alienation over the joint family property or over his interest in the joint family property, though under the Dayabhaga School a coparcener has the right of alienation over his interest in the joint family property. 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. Such alienations are governed by the Transfer of PropertyAct.

Modes of Alienation

Property can be alienated in two ways:
Voluntary alienation
Involuntary alienation
When the owner of property transfers it willingly, it is voluntary alienation. It may be made in three ways, (i) for consideration e.g. by sale, mortgage, lease or exchange, (ii) by gift, and (iii) by will. Involuntary alienation takes place when the court attaches the property of a person. The property of the joint family or undivided interest of a coparcener in such property may also be alienated by this mode.

When can the Joint Family Property be alienated

A person can alienate joint family property only when there is some necessity, legal necessity or for the benefit of estate.

Any necessity

The leading case on the subject of alienation for necessity is Hunooman Persuad’s case . In that case, their Lordships of the Privy Council said: The power of the manager for an infant heir to charge an estate not his own is under a Hindu law, a limited and qualified power. It can only be exercised rightly in a case of need, or for benefit of the estate. However, where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, the bonafide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded…their Lordships think that the lender is bound to inquire into the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the manager is acting in the particular instance for the benefit of the estate. However, they think that if he does so inquire, and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge, and they do not think that if he does so inquire, and acts honestly, the real existence of an alleged sufficient and reasonably-credited necessity is not a condition precedent to the validity of his charge, and they do not think that, under the circumstances he is bound to see the application and a lender can rarely have, unless he enters on the management, the means of controlling and rightly directing the actual application. Their Lordships do not think that a bonafide creditor...
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