Joint Hindu Family |Procedure for separation of property |Family Law| MASKMOONJI |IN Tamil - In this video we clearly explains about the separation of joint hindu famil property
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. The Transfer of Property Act governs such alienations.
The distinguishing feature of this power is that it was traditionally given only to the father or the Karta and that, but the power itself is near autocratic as it allows them to sell, gift or mortgage the whole joint family property without the consent of any coparcener, this is why the ancient texts have specified several conditions which alone would justify such acts of the manager. These conditions have changed over the centuries to keep in pace with the changing conditions and the ancient rules have been modified by the Privy Council in accordance with the principles of equity, justice and good conscience.
In this project the subject matter i.e. Alienation has been discussed under the following heads:
Father’s power of alienation
Karta’s power of alienation
Coparcener’s power of alienation
Sole surviving coparcener’s power of alienation
Aileen’s rights and remedies
An effort has been made to list the entire varying viewpoint and critically analyze them in the light of old traditions and newfound legal principles. Alienation is of vast practical utility as it gives a way of using the joint family property for the common use of the family and it is a classic example of the unique position of the Hindu joint family which is always ready to help its members in times of need and who work together for common benefit
FATHER’S POWER OF ALIENATION
A father possesses more power even than Karta as there are situations in which only the father has the authority to make alienation. Under Dayabhaga School, father is provided with the absolute powers regarding alienation, i.e. he can alienate separate as well as ancestral property, including movable and immovable on his wish. As the sons don’t get a right over the property by birth under Dayabhaga School, father doesn’t need the consent of his sons for the purpose of alienation.
Father enjoys an absolute power, which empowers him to alienate the property even when there are no moral justifications. In Ramkoomar vs. Kishenkunkar[i], the Sudder Court held that the gift by a father of his whole estate to a younger son, during the life of the elder was valid though immoral; however the gift of whole ancestral landed property was forbidden.
Under Mitakshara Law, while it has been a settled law that the father had full power disposal of his separate movable property, our courts held conflicting views as to father’s power of alienation over his separate immovable properties. The controversy was set at rest by the Privy Council in1898 in the case of Rao Balwant Singh vs. Rani Kishori[ii], wherein it held that father had full power of alienation over his separate property, both movable and immovable.
As regards, Joint or Undivided property it has been held that the father can alienate undivided joint family property only in the following two cases:
Gift of Love and Affection
Alienation for discharge of his personal debts
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