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Join property undivided share of a shareholder can make a will in india
11 months ago
Can undivided share of a joint property of a shareholder make a will to his wife
Such will can be challenged by his child or his other siblings
A.Dear Sir,
Alienation of Coparcenary Property
Alienation refers to the transfer of property. For eg: sales, gifts, mortgages, etc. Property alienations have an added importance in Hindu law, as, usually neither the Karta (the manager of a joint family and the properties of such joint family. He also looks after the regular expenses of the family and also protects the joint family property) nor any other Copercaner has the absolute full power of alienation over the joint family property or over his interest in such property. 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.
The alienations related to coparcenary property under the Hindu law are governed by the Hindu Succession Act, 1956 and the Transfer of Property Act, 1882.
Who may alienate?
The following persons are capable of alienating/transferring a coparcenary property and thus possess the power in this regard:
Father’s alteration power
Before the courts used to hold conflicting views regarding the father’s power of alteration over his separate immovable properties. This is despite their unanimity the father was fully empowered to dispose of his separate movable property.
The cause of this conflict was a text in Mitakshara, according to which the father “is subject to the control of his sons and the rest, regarding the immovable property”, whether self-acquired or ancestral.
In Rao Balwant Singh v. Rani Kishori, 1898,; the Privy Council resolved this controversy and held that the father had the complete power of alienation over his separate property, irrespective of being moveable or immovable.
It has, however, been recognized all along in Dayabhaga that the father has the absolute alteration power over all the properties, whether self-acquired or ancestral.
On one hand, Vijnaneshwara restricted the father’s alienation power over his self-acquired immovable properties, contrarily the father was conferred with wider powers over movable ancestral properties. However, it is presently a settled law that a Mitakshara the father is by no means greatly empowered over movable joint family properties compared to the immovable ones.
The sole power a father has been conferred is the power of making “gift of love & affection”. Another power that is being held by a father is the power of alienating joint family property for discharging his personal debts.
Gifts of love and affection
According to Mitakshara:
1. The father is empowered to “make a gift of love and affection” of movable joint family property.
2. Such gifts may be made by him to his:
• Own wife;
• Daughter;
• Son in law; or
• Any other close relation.
• These gifts of the moveable property may consist of –
1. Jewels,
2. Silver or gold ornaments,
3. Clothing,
4. Cash, or
5. Any other moveable property.
Such gifts are usually made on occasions like marriage, upanayana, mundana, or when the daughter visits her paternal home, or during the daughter’s childbirth, etc.
Karta’s power of alienation
Usually, an individual Coparcener, including the Karta, lacks the capability to dispose of the joint family property without obtaining the consent of all other Coparceners. However, according to the Dharmashastra, any family member is empowered to alienate the joint family property.
The Mitakshara school is explicit on this matter. According to Vijnaneshwara, under 3 exceptional circumstances, the alienation of the joint family property by an individual is possible:
1. Apatkale, i.e. during distress;
2. Kutumbarthe, i.e. for the sake of the family;
3. Dharmarthe, i.e. for disposing of indispensable duties.
However, with the advent of time, Vijnaneshwara’s formulation has undergone modification in two aspects. Firstly, the alienation power is not exercisable by any other family member, except the Karta.
Secondly, the joint family property can be alienated for the following 3 purposes:
1. Legal necessity;
2. Benefitting the estate;
3. Acts involving indispensable duty.
Further discussions on these grounds of alienation shall be discussed afterward.
Coparceners power
Neither the Mitakshara nor the Smritikars conferred any sort of power of alienation to the Coparceners over their undivided interest in the joint family property.
However, the textual authority is very limited in this regard. The law relating to Coparcener’s alienation power is a child of judicial legislation. The first inroad emerged when it was held that a personal money decree against a Coparcener could be executed against his undivided interest in the joint family property. Some courts have extended this principle for including voluntary alienations also.
Thus the Coparceners’ alienation power can be categorized under the following heads:
Involuntary Alienation – This refers to the alienation of the undivided interest in the execution suits. The Hindu sages greatly emphasized upon the payment of the debts. The courts seized this Hindu legal principle and started its execution on personal money decrees against the joint family interest of the judgment-debtor Coparcener.
In Deen Dayal vs. Jagdeep (1876), the Privy Council settled the law for all the schools of Hindu Law, by holding the purchaser of undivided interest at an execution sale during the lifetime of his separate debt acquires his interest in such property with the power of assessing it and recovering it through the partition.
This rule is, however, as held in Shamughan vs. Ragaswami, limited to the non-execution of the decree, against the Coparceners interest, succeeding his demise.
Voluntary alienation – After accepting the fact that the undivided interest of a Coparcener is attachable and saleable during the execution of a money decree against him, the next step involved, extending the principle to voluntary alienations as well.
Sole surviving coparcener’s power
When all the Coparceners die except one, such a coparcener is regarded as the sole surviving Coparcener. When the joint family property passes into the hands of such Coparcener, it turns into separate property, provided that such Coparcener is sonless.
Now based on various judicial decisions there are 3 views in relation to the power of the sole surviving Coparcener in alienating a property of the Hindu joint family:
1. A sole surviving Coparcener is fully entitled to alienate the joint family property. However, if at the time of such alienation, another Coparcener is present in the womb, then such coparcener can challenge the alienation or ratify it after attaining the age of majority.
2. The sole surviving Coparcener’s power of alienation is unaffected by any subsequent adoption of a son by the widow of another Coparcener. However, the Mysore High Court holds a contrary view in this regard.
3. The sole surviving Coparcener cannot alienate the interest of any female where such interest has been vested on her by virtue of Section 6 of the Hindu Succession Act, 1956.
Grounds of alienation
According to Vijnaneshwara, a joint family property can be alienated for 3 reasons:
• Apatkale: It refers to a situation where the whole family or one of its members meets with an emergency, in regards to their property. The nature of this transaction is meant for combating the danger, or an attempt in avoiding the calamity for which money is needed. When it refers to the property, it indicates the transfer as being necessary for its protection, or conservation, and for which immediate action is to be taken.
This is not a mere profitable transaction, but a transfer which if not affected causes loss to the family, to this property, or any other property owned by the family.
• Kutumbarthe: This means “for the benefit of the Kutumb”. Kutumb refers to family members. Therefore, this involves the alienation of a property for the sake of subsistence of a family member or relative. For eg: food, clothing, housing, education. Medical expenses, etc.
• Dharmarthe: For performing indispensable and pious duties. Usually for religious and charitable purposes.
However, with time Vijnaneshwara’s formulation has gone through a rapid transformation and modified pivotally into 2 aspects:
1. The power of alienation cannot be exercised by anyone but the Karta of the joint family; and
2. The joint family can be alienated solely for the following three purposes:
Legal necessity
This term “legal necessity” lacks any precise definition due to the impossibility to provide any such definition as the cases of legal necessity can be numerous and varying.
Widely speaking, legal necessity will include all those things which are to be deemed necessary for the family members. Such situations may include famine, epidemic, earthquake, floods, etc.
According to Mayne, it is now established that necessity need not be comprehended in the sense of what is absolutely indispensable but what, according to the notions of a Hindu family, would be regarded as proper and reasonable.
Essentials for a valid transaction under legal necessity are:
Purpose exists, i.e. a situation with respect to family members or their property which requires money.
Such a requirement is lawful, i.e. it must not be for an immoral, illegal purpose.
The family does not have monetary or alternative resources for dealing with the necessity, and
The course of action taken by the Karta is such that a normally prudent person will take with respect to his property.
However, while such alienation, the consideration for the sale of coparcenary property must not be inadequate.
The Benefit of Estate
Pivotally speaking, the benefit of an estate refers to anything that is done which will benefit the joint family property.
The term ‘benefit of the estate’ in the inception covered purely defensive cases, such as protecting it from a threatened danger or destruction, but gradually it also began including alienations that an ordinarily prudent man would view as appropriate under certain situations.
Indispensable Duties
The term “indispensable duties” refers to performing religious, pious or charitable acts. Such as marriage, grihapravesham, shradha, upanayana, etc
Landmark Judgments
• Kandasami vs. Somakanda (1910)
It was observed in this case that Karta can alienate the joint family property, after obtaining the concept of the other Coparceners, even in the absence of legal necessity, the benefit of the estate, or acts involving indispensable obligation. Provided that the consenting Coparceners are adults.
• Manohar vs. Dewan (1985)
Dewan Chand, the father of the appellants, sold off land for Rs. 8000/-. The appellants filed a suit for joint possession over the said land, alleging that they constituted a joint Hindu family with their father, that the land sold was a coparcenary property, and that the sale was executed without any consideration and legal necessity. The suit was contested by the vendors who opposed all the allegations and further pleaded that the sale having been made for the benefit of the family, and being an act of good management was, therefore, binding on the plaintiffs. The Trial Court after recording evidence of the parties negatived the plea that the property was coparcenary property and further held that the sale was executed in exchange for consideration and legal necessity and as an act of good management dismissed the suit. Its findings were affirmed on appeal which led to the filing of this second appeal by the plaintiffs. Here it was held that any alienation lacking the consent of Coparceners and also for any purpose excluding legal necessity shall be void ab initio.
• Rani vs. Shanta (1970)
Here disputes arose regarding the sale of part of joint family property. It was contended by the plaintiffs that the said property was sold by their mother without any legal necessity and undue influence. Here, the Trial Court ruled against the Plaintiffs so they appealed before the High Court of Kolkata.
The High Court ruled in favor of the plaintiffs, to which the defendants filed an appeal before the Supreme Court.
The Supreme Court observed that It is now established that ‘necessity’ is not to be appreciated in the sense of what is absolutely indispensable but what in accordance with the notions of a Hindu family, would be regarded as proper and reasonable.
• Jagatnarain vs. Mathuradas (1928)
The question before the court in the case was regarding the meaning and implications of the term “benefit of the estate” as asserted for the reason of alienation of joint family property.
The Allahabad High Court ruled that anything done for improving the property shall be deemed as a benefit of the estate.
• Gangi vs. Tammu (1927)
A person had two sons, one of who had predeceased him, leaving only one son, the present plaintiff. The younger son and his son were the present defendants. There were also several daughters.
That person had made 3 wills before his death asserting that the properties were self-acquired. However, such properties were later found to be ancestral and thus could not be disposed of through will.
The Privy Council, in this case, held that dedication of a portion of the joint family property for the purpose of religious charity may validly be made by the Karta, if the property allotted is small compared to the absolute means of the family. Such alienation cannot be made through a will.
Conclusion
From the above analysis, it is apparent that the coparcenary relationship exists in a Hindu joint family, starting from the senior-most male member up to the four degrees. Such senior-most male member is deemed as the Karta of the joint family and has the power to alienate the joint family property with the consent of all other Coparceners. However, such alienations can only be done in scenarios involving legal necessity, the benefit of the estate, and performing indispensable obligations such as religious or pious activities. Apart from the Karta; the father, a Coparcener, or the sole surviving Coparcener is capable of transferring a joint family property with the consent of other Coparceners or by self, as the case may be.
However, it is advisable that to deal with lesser complexities it is always better that people hold on to their own property and partition the shares for their descendants.
Alienation of Coparcenary Property
Alienation refers to the transfer of property. For eg: sales, gifts, mortgages, etc. Property alienations have an added importance in Hindu law, as, usually neither the Karta (the manager of a joint family and the properties of such joint family. He also looks after the regular expenses of the family and also protects the joint family property) nor any other Copercaner has the absolute full power of alienation over the joint family property or over his interest in such property. 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.
The alienations related to coparcenary property under the Hindu law are governed by the Hindu Succession Act, 1956 and the Transfer of Property Act, 1882.
Who may alienate?
The following persons are capable of alienating/transferring a coparcenary property and thus possess the power in this regard:
Father’s alteration power
Before the courts used to hold conflicting views regarding the father’s power of alteration over his separate immovable properties. This is despite their unanimity the father was fully empowered to dispose of his separate movable property.
The cause of this conflict was a text in Mitakshara, according to which the father “is subject to the control of his sons and the rest, regarding the immovable property”, whether self-acquired or ancestral.
In Rao Balwant Singh v. Rani Kishori, 1898,; the Privy Council resolved this controversy and held that the father had the complete power of alienation over his separate property, irrespective of being moveable or immovable.
It has, however, been recognized all along in Dayabhaga that the father has the absolute alteration power over all the properties, whether self-acquired or ancestral.
On one hand, Vijnaneshwara restricted the father’s alienation power over his self-acquired immovable properties, contrarily the father was conferred with wider powers over movable ancestral properties. However, it is presently a settled law that a Mitakshara the father is by no means greatly empowered over movable joint family properties compared to the immovable ones.
The sole power a father has been conferred is the power of making “gift of love & affection”. Another power that is being held by a father is the power of alienating joint family property for discharging his personal debts.
Gifts of love and affection
According to Mitakshara:
1. The father is empowered to “make a gift of love and affection” of movable joint family property.
2. Such gifts may be made by him to his:
• Own wife;
• Daughter;
• Son in law; or
• Any other close relation.
• These gifts of the moveable property may consist of –
1. Jewels,
2. Silver or gold ornaments,
3. Clothing,
4. Cash, or
5. Any other moveable property.
Such gifts are usually made on occasions like marriage, upanayana, mundana, or when the daughter visits her paternal home, or during the daughter’s childbirth, etc.
Karta’s power of alienation
Usually, an individual Coparcener, including the Karta, lacks the capability to dispose of the joint family property without obtaining the consent of all other Coparceners. However, according to the Dharmashastra, any family member is empowered to alienate the joint family property.
The Mitakshara school is explicit on this matter. According to Vijnaneshwara, under 3 exceptional circumstances, the alienation of the joint family property by an individual is possible:
1. Apatkale, i.e. during distress;
2. Kutumbarthe, i.e. for the sake of the family;
3. Dharmarthe, i.e. for disposing of indispensable duties.
However, with the advent of time, Vijnaneshwara’s formulation has undergone modification in two aspects. Firstly, the alienation power is not exercisable by any other family member, except the Karta.
Secondly, the joint family property can be alienated for the following 3 purposes:
1. Legal necessity;
2. Benefitting the estate;
3. Acts involving indispensable duty.
Further discussions on these grounds of alienation shall be discussed afterward.
Coparceners power
Neither the Mitakshara nor the Smritikars conferred any sort of power of alienation to the Coparceners over their undivided interest in the joint family property.
However, the textual authority is very limited in this regard. The law relating to Coparcener’s alienation power is a child of judicial legislation. The first inroad emerged when it was held that a personal money decree against a Coparcener could be executed against his undivided interest in the joint family property. Some courts have extended this principle for including voluntary alienations also.
Thus the Coparceners’ alienation power can be categorized under the following heads:
Involuntary Alienation – This refers to the alienation of the undivided interest in the execution suits. The Hindu sages greatly emphasized upon the payment of the debts. The courts seized this Hindu legal principle and started its execution on personal money decrees against the joint family interest of the judgment-debtor Coparcener.
In Deen Dayal vs. Jagdeep (1876), the Privy Council settled the law for all the schools of Hindu Law, by holding the purchaser of undivided interest at an execution sale during the lifetime of his separate debt acquires his interest in such property with the power of assessing it and recovering it through the partition.
This rule is, however, as held in Shamughan vs. Ragaswami, limited to the non-execution of the decree, against the Coparceners interest, succeeding his demise.
Voluntary alienation – After accepting the fact that the undivided interest of a Coparcener is attachable and saleable during the execution of a money decree against him, the next step involved, extending the principle to voluntary alienations as well.
Sole surviving coparcener’s power
When all the Coparceners die except one, such a coparcener is regarded as the sole surviving Coparcener. When the joint family property passes into the hands of such Coparcener, it turns into separate property, provided that such Coparcener is sonless.
Now based on various judicial decisions there are 3 views in relation to the power of the sole surviving Coparcener in alienating a property of the Hindu joint family:
1. A sole surviving Coparcener is fully entitled to alienate the joint family property. However, if at the time of such alienation, another Coparcener is present in the womb, then such coparcener can challenge the alienation or ratify it after attaining the age of majority.
2. The sole surviving Coparcener’s power of alienation is unaffected by any subsequent adoption of a son by the widow of another Coparcener. However, the Mysore High Court holds a contrary view in this regard.
3. The sole surviving Coparcener cannot alienate the interest of any female where such interest has been vested on her by virtue of Section 6 of the Hindu Succession Act, 1956.
Grounds of alienation
According to Vijnaneshwara, a joint family property can be alienated for 3 reasons:
• Apatkale: It refers to a situation where the whole family or one of its members meets with an emergency, in regards to their property. The nature of this transaction is meant for combating the danger, or an attempt in avoiding the calamity for which money is needed. When it refers to the property, it indicates the transfer as being necessary for its protection, or conservation, and for which immediate action is to be taken.
This is not a mere profitable transaction, but a transfer which if not affected causes loss to the family, to this property, or any other property owned by the family.
• Kutumbarthe: This means “for the benefit of the Kutumb”. Kutumb refers to family members. Therefore, this involves the alienation of a property for the sake of subsistence of a family member or relative. For eg: food, clothing, housing, education. Medical expenses, etc.
• Dharmarthe: For performing indispensable and pious duties. Usually for religious and charitable purposes.
However, with time Vijnaneshwara’s formulation has gone through a rapid transformation and modified pivotally into 2 aspects:
1. The power of alienation cannot be exercised by anyone but the Karta of the joint family; and
2. The joint family can be alienated solely for the following three purposes:
Legal necessity
This term “legal necessity” lacks any precise definition due to the impossibility to provide any such definition as the cases of legal necessity can be numerous and varying.
Widely speaking, legal necessity will include all those things which are to be deemed necessary for the family members. Such situations may include famine, epidemic, earthquake, floods, etc.
According to Mayne, it is now established that necessity need not be comprehended in the sense of what is absolutely indispensable but what, according to the notions of a Hindu family, would be regarded as proper and reasonable.
Essentials for a valid transaction under legal necessity are:
Purpose exists, i.e. a situation with respect to family members or their property which requires money.
Such a requirement is lawful, i.e. it must not be for an immoral, illegal purpose.
The family does not have monetary or alternative resources for dealing with the necessity, and
The course of action taken by the Karta is such that a normally prudent person will take with respect to his property.
However, while such alienation, the consideration for the sale of coparcenary property must not be inadequate.
The Benefit of Estate
Pivotally speaking, the benefit of an estate refers to anything that is done which will benefit the joint family property.
The term ‘benefit of the estate’ in the inception covered purely defensive cases, such as protecting it from a threatened danger or destruction, but gradually it also began including alienations that an ordinarily prudent man would view as appropriate under certain situations.
Indispensable Duties
The term “indispensable duties” refers to performing religious, pious or charitable acts. Such as marriage, grihapravesham, shradha, upanayana, etc
Landmark Judgments
• Kandasami vs. Somakanda (1910)
It was observed in this case that Karta can alienate the joint family property, after obtaining the concept of the other Coparceners, even in the absence of legal necessity, the benefit of the estate, or acts involving indispensable obligation. Provided that the consenting Coparceners are adults.
• Manohar vs. Dewan (1985)
Dewan Chand, the father of the appellants, sold off land for Rs. 8000/-. The appellants filed a suit for joint possession over the said land, alleging that they constituted a joint Hindu family with their father, that the land sold was a coparcenary property, and that the sale was executed without any consideration and legal necessity. The suit was contested by the vendors who opposed all the allegations and further pleaded that the sale having been made for the benefit of the family, and being an act of good management was, therefore, binding on the plaintiffs. The Trial Court after recording evidence of the parties negatived the plea that the property was coparcenary property and further held that the sale was executed in exchange for consideration and legal necessity and as an act of good management dismissed the suit. Its findings were affirmed on appeal which led to the filing of this second appeal by the plaintiffs. Here it was held that any alienation lacking the consent of Coparceners and also for any purpose excluding legal necessity shall be void ab initio.
• Rani vs. Shanta (1970)
Here disputes arose regarding the sale of part of joint family property. It was contended by the plaintiffs that the said property was sold by their mother without any legal necessity and undue influence. Here, the Trial Court ruled against the Plaintiffs so they appealed before the High Court of Kolkata.
The High Court ruled in favor of the plaintiffs, to which the defendants filed an appeal before the Supreme Court.
The Supreme Court observed that It is now established that ‘necessity’ is not to be appreciated in the sense of what is absolutely indispensable but what in accordance with the notions of a Hindu family, would be regarded as proper and reasonable.
• Jagatnarain vs. Mathuradas (1928)
The question before the court in the case was regarding the meaning and implications of the term “benefit of the estate” as asserted for the reason of alienation of joint family property.
The Allahabad High Court ruled that anything done for improving the property shall be deemed as a benefit of the estate.
• Gangi vs. Tammu (1927)
A person had two sons, one of who had predeceased him, leaving only one son, the present plaintiff. The younger son and his son were the present defendants. There were also several daughters.
That person had made 3 wills before his death asserting that the properties were self-acquired. However, such properties were later found to be ancestral and thus could not be disposed of through will.
The Privy Council, in this case, held that dedication of a portion of the joint family property for the purpose of religious charity may validly be made by the Karta, if the property allotted is small compared to the absolute means of the family. Such alienation cannot be made through a will.
Conclusion
From the above analysis, it is apparent that the coparcenary relationship exists in a Hindu joint family, starting from the senior-most male member up to the four degrees. Such senior-most male member is deemed as the Karta of the joint family and has the power to alienate the joint family property with the consent of all other Coparceners. However, such alienations can only be done in scenarios involving legal necessity, the benefit of the estate, and performing indispensable obligations such as religious or pious activities. Apart from the Karta; the father, a Coparcener, or the sole surviving Coparcener is capable of transferring a joint family property with the consent of other Coparceners or by self, as the case may be.
However, it is advisable that to deal with lesser complexities it is always better that people hold on to their own property and partition the shares for their descendants.
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A.In the absence of authentic information with regard to whether the joint property is ancestral property or self-acquired property jointly owned by all the legal heirs, nothing can be suggested about whether said joint property could be transferred even through a Will or otherwise.
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Anonymous
Replied 11 months ago
Sir it was a property of my grandfather after his demise it transferred to my grandmother
After winning at court
Judge passed a order to divide all the share among all children
Legal Counsel Vidhikarya
Replied 11 months ago
So, its an ancestral property and accordingly judgment is passed dividing equal share to all legal heirs. In case of ancestral property, a shareholder of said property can transfer his undivided share in favor of his spouse through a will or otherwise strictly with the consent of the other legal heirs/shareholders of the said undivided joint property otherwise such transfer can be challenged by other heirs of the property.
A.Good evening!
Undivided Share in the property can validly be transferred and transferee acquires right of share or interest of the transferor.
The facts given are insufficient to provide any specific legal advice. Please give more details to move forward.
Undivided Share in the property can validly be transferred and transferee acquires right of share or interest of the transferor.
The facts given are insufficient to provide any specific legal advice. Please give more details to move forward.
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Anonymous
Replied 11 months ago
Sir it was a property of my grandfather after his demise it transferred to my grandmother After winning at court Judge passed a order to divide all the share among all children
And my father wants to transfer his share to my mother
I have no objection
But my step sister might have
Can a register will save the property from her
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