The Mitakshara's Power Of Alienations By The Smritikars
The Mitakshara did not permit individual alienations by the coparceners. The Smritikars also did not seem to confer on a coparcener power of alienation over his undivided interest in the joint family property. However, the textual authority is very scanty. The law of coparcener’s power of alienation is product of judicial legislation. The first inroad was made when it was held that a personal money decree against a coparcener could be executed against his undivided interest in joint property. Some High Court extended this principle to voluntary alienations also. We may divide the subject under two heads:
1. Involuntary Alienation.
2. Voluntary Alienation.
INVOLUNTARY ALIENATION:-
Involuntary alienation means the alienation of the undivided interest in execution proceedings. The Hindu sages laid great emphasis on the payment of debts. The court seized this principle of Hindu law and held that the purchaser of undivided interest at an execution sale during the life …show more content…
The expression of an intention is enough. A widow can also renounce her interest in joint family property which she gets as an heir of her husband.
SOLE SURVIVING COPARCENER’S RIGHT OF RELINQUISHMENT: -
The view can be summarized as following :
1. A sole surviving coparcener has full right of alienation of joint family property, but if at the time of alienation, another coparcener is in the womb; on his birth he can challenge the alienation .
2. The sole surviving coparcener’s right of alienation is not affected by a subsequent adoption of a son by a coparcener widow . Though the Mysore High Court has taken a contrary view point in the case of Mahadevappa v. Chanabasappa .
3. The sole surviving coparcener cannot alienate interest of any female vested in her by virtue of operation of Sec. 6 of Hindu succession Act, 1956 .
4. The sole surviving coparcener can also alienate his property by will
1. Involuntary Alienation.
2. Voluntary Alienation.
INVOLUNTARY ALIENATION:-
Involuntary alienation means the alienation of the undivided interest in execution proceedings. The Hindu sages laid great emphasis on the payment of debts. The court seized this principle of Hindu law and held that the purchaser of undivided interest at an execution sale during the life …show more content…
The expression of an intention is enough. A widow can also renounce her interest in joint family property which she gets as an heir of her husband.
SOLE SURVIVING COPARCENER’S RIGHT OF RELINQUISHMENT: -
The view can be summarized as following :
1. A sole surviving coparcener has full right of alienation of joint family property, but if at the time of alienation, another coparcener is in the womb; on his birth he can challenge the alienation .
2. The sole surviving coparcener’s right of alienation is not affected by a subsequent adoption of a son by a coparcener widow . Though the Mysore High Court has taken a contrary view point in the case of Mahadevappa v. Chanabasappa .
3. The sole surviving coparcener cannot alienate interest of any female vested in her by virtue of operation of Sec. 6 of Hindu succession Act, 1956 .
4. The sole surviving coparcener can also alienate his property by will