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Coparceber´S Right Of Alienation Essay

1511 words - 7 pages

The law has shifted quite a bit from the archaic position. The Supreme Court in Thamma Venkata Subbamma v Thamma Rattamma discussed in detail the position of the law with regards to alienation of property by way of gifts. It stated that gifts made by any one coparcener of joint family property, even if only their own undivided share, was void until and unless it was with the consent of the other coparceners. It also stated that the reason for this is to prevent breakdown of joint families. This ratio was recently applied in R. Kuppayee v Raja Gounder, Baljinder Singh v Rattan Singh and in K.C. Laxmana v K.C. Chandrappa.
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If the father, karta, coparcener or sole surviving coparcener oversteps their power in making the alienation, it can be set aside by any other coparcener who has an interest in the property, by applying to a competent court for the same.

As had been stated before, it is open to the coparceners to challenge alienations made by the karta or father on the grounds that they do not fulfil any one or more of the prerequisites for a valid alienation even though they cannot in the first instance stop it from taking place.

Only those coparceners who had been conceived at the time of the transaction, i.e. they were in existence, are competent to challenge the alienation. Any coparcener born afterwards is barred from doing the same. A transaction not for legal necessity, or benefit of estate, or not undertaken with the consent of the other coparceners will be voidable.


A transferee receiving an undivided share from the coparcener in a joint family property generally steps into the shoes of the transferor and becomes entitled to ask for partition and thus obtain his share in the coparcenary property. However, he is not entitled to seek possession and enjoyment of the subject matter property along with the other coparceners though earlier cases in high courts recognized instances where he might do so.

The alienee of a specific property or of the undivided interest of a coparcener in such property has on a general partition, an equitable right to have his share in that property assigned to him. However, there may be cases where it is inequitable or impracticable to do so, and in such cases the alienee is entitled to recover from the alienor, property of an equivalent value out of the properties allotted to the alienor for his share in substitution of the property alienated.

The alienee may also have a right to mesne profits depending on his right to possession. In Sidheshwar Mukherjee v. Bhubneshwar Prasad the Supreme Court has held that the purchaser of the share of a coparcener is entitled to the possession of the property he has purchased with effect from the date when the specific allotment was made in his favour, not from the date when he first purchased an unspecified share in the coparcenary property. The Supreme Court followed its own judgment once again in K.P. Ramamurthi v Govindaswami Mudaliar.

The alienee also has the right to sue for specific performance, though the performance will only be in a limited sense. In Kartar Singh v. Harjinder Singh, the Hon’ble Supreme Court held that where the shares are separable and a party enters into an agreement even for sale of share belonging to other co-sharer, a suit for specific performance was maintainable at least for the share of the executor of the agreement, if not for the share of other co-sharers. It was further observed: "As regards the difficulty pointed out by the High Court,...

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