Updated: May 20, 2020
According to Vijnaneshwara law – • Power of alienation of joint family property cannot be exercised by any member except the Karta. • Joint family property can be alienated only out of legal necessity, the benefit of the estate, and an act of dispensable duty.
LEGAL NECESSITY The term legal necessity has not been defined precisely; it can be numerous and varied depending upon the case. It includes all those things which are deemed necessary for the members of the joint family.
Illustrative cases of legal necessity • Food, shelter, and clothing for the members of the joint family. • Marriage of the members of the family except the second marriage of the member and marriage of the minor. • Medical care of the members. • Defense of members involved in serious criminal charges except murder. • For payment of debt binding on family members. • For performance of necessary ceremonies. • For sale of land to construct a pakka house • For payment of rents.
BENEFIT OF ESTATE Anything which is done for the benefit of joint family property is termed as a benefit of the estate. In Amrej Singh v. Shambha Singh, it was held that the test is of the prudent man. Anything which a prudent person can do with respect to his own property, the Karta can do in respect of the joint family property. In K.C. Kapoor v. Radhika Devi, it was held that the sale of the property to enable the family to migrate to another place and to purchase more productive lands. This amounts to the benefit of the estate.
INDISPENSABLE DUTIES The term indispensable duties, connotes the performance of those acts which are religious, pious, and charitable. This includes indispensable duties such as shradha, upanayanama, and performance of other necessary sanskars. The performance of the marriage of a daughter also comes under indispensable duties. Apart from indispensable ceremonies, a small portion of the property can be alienated for a permanent shrine for a family idol or an idol in a public temple. There is a difference between alienation made in discharge of indispensable duties and ifs made for charitable or pious purposes. In the former case Karta’s powers are unlimited, he may alienate the entire property and in later cases Karta can only alienate a small portion of a joint family property whether movable or immovable.
BURDEN OF PROOF Whether the transaction is for legal necessity, benefit, or indispensable duties the burden of proof is on the alliance. Alienation is voidable at the instances of any coparcener, if the alienation is not done because of the above mention conditions.
CONSENT OF COPARCENER Karta can alienate the joint family property with the consent of the coparceners even if none of the above mention conditions exit. If all the coparceners are adult it is binding on the entire family.
CONCLUSION Karta’s powers of alienation are limited.
Karta makes alienation as a prudent man.
The alienee is bond to make proper and bonafide inquiries as to legal necessity. If the alienee acts bonafide and makes proper inquiries the important existence of an alleged sufficient and reasonable credit necessity isn’t a condition precedent to the validity of alienation.
The alienee is not bound to see the actual application of money for legal necessity.