ALIENATION POWER OF KARTA by MAHEK UPADHAYAY @ LexCliq

INTRODUCTION

The term ‘Alienation’ refers to the transfer of property inter vivos, such as by sale, mortgage, gift, licence or even a lease, including  a perpetual lease. Where a property is owned by more than one person, no single person can acquire the power to alienate the whole of it. With respect to a joint family property, the Karta is entrusted with its management. he does not own property as a whole and has only an interest n it just like the other coparceners and if all the coparceners give their consent or authorise him to sell the property, he can do do and such a transfer will be binding on the interests of all the members and the purpose of the sale will be immaterial.

Vijananeshwar specifies in Mitakshara that joint family property can be transferred in three cases:

  1. Apatkale refers to an emergency faced either by the family together or by one of its members, or with respect to its property. It is more in the nature of averting a danger, an attempt to avoid a calamity for which money has to be raised.
  2. Kutumbarthe was explained in Mitakshara as meaning ‘benefit of Family members’. it permits the transfer of property where the sale proceeds are to be utilised for the sustenance of the family members, such as for providing for their needs of food, clothing, shelter, education, medical expenses, etc.
  3. Dharmarthe means for the performance of indispensable duries, such as obsequies of ancestors.

However, the present categories as recognized by the courts, are as follows:

(a) Legal Necessity

(b) Benefit of Estate

(c) Performance of religious and indispensable duties

AUTHORISATION FOR ALIENATION 

The authorisation for alienation of a joint family property by the Karta can be either express or judicial.

  • It is an Express Authorisation when besides the Karta, all the coparceners in the family are major and they all consent to the alienation.
  • It is an Judicial Authorisation  when either the other coparceners do not consent to the alienation or are minors, but the alienation is for one of the three permitted purposes as aforesaid. Though this authorisation had its origin in the Dharmshastras as expounded by the commentaries, it has been recognised and upheld as valid all along, by the judiciary.

RIGHTS OF COPARCENERS AGAINST ALIENATION OF JOINT FAMILY PROPERTY BY KARTA

The Karta has a right to manage the joint family affairs and in course of its management. There is no legal obligation on the Karta to either take the consent of the other coparceners or to even communicate his decision to others.

Where the Karta is contemplating the transfer of the joint family property for a permitted purpose, as ascertained by him, the coparceners cannot prevent him from transferring this property by seeking a temporary or permanent injunction from the court. But they have two remedies available when they do not consent to the alienation.

  • first remedy, coparcener can demand his share in the joint family property and cease to be a member of this family, The moment he demands his share with a clear intention that is communicated to the Karta, the Karta will be divested of the power to manage his share. he can exercise the power to transfer only the remaining property.
  • second remedy, where the transfer has been effected without the consent of the other coparceners, they can challenge the validity of the transfer in a court of law, on the ground that none of the three categories for which the Karta is permitted in law to alienate the property existed. The court in such cases will determine whether the Karta was legally authorised to transfer the property or not. When the court comes to the conclusion that the transfer was valid, it will bind the shares of all members of the joint family, including the one who impugns the transfer would be void and the alienee would be directed to deliver the property back to the joint family. In such matters burden of proof lies on the Karta to proof that the alienation was not mala fide but was done in favor of family.

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