What is the position of the Joint Family Property in the hands of a sole surviving coparcener? Explain with the help of appropriate illustrations and relevant judicial decisions.

Question: What is the position of the Joint Family Property in the hands of a sole surviving coparcener? Explain with the help of appropriate illustrations and relevant judicial decisions. [Punj JS 2019]

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Answer

A coparcener outliving all other coparceners is known as the sole surviving coparcener. He may be alone in the family or there may be another female member along with him in the family. The nature of property in the hands of a such sole surviving coparcener is that of HUF (Hindu Undivided Family) property.

In Gowli Buddanna v. CIT, [(1966) 60 ITR 293 (SC)], it was held that sole coparcener with a female member can constitute HUF.

When the joint family property passes into the hands of the sole surviving coparcener, it assumes the character of separate property, so long as he doesn't have a son, with the only duty on him being that of maintenance of the female members (the widows) of the family. Thus, barring the share of the widows, he can alienate the other property as his separate property. However, this is not valid if another coparcener is present in the womb at the time of the alienation. But if the son is born subsequent to the transaction then he cannot challenge the alienation. A sole coparcener can settle property as he likes. A sole Coparcener cannot make a partition of property nor grant share. A sole coparcener can make a valid gift of immovable property.

A question was discussed in a case where if a widow adopts a child after the death of her husband, will such a child challenge the alienation, i.e. can the doctrine of relation back be applied in such cases? The Mysore High Court in the case of Mahadvappa v. Chanabasappa, (AIR 1966 Kant 15), held that such a child can actually challenge the alienation made by the sole surviving coparcener as he'll have an interest in the joint family property.

This is in contrast with the stance taken by the Bombay High Court in the cases of Bhimji v. Hanumant Rao, (AIR 1950 Bom 271) and Babgonda Ramgonda Patil v. Anna Nemgonda Patil And Ors., (AIR 1968 Bom 8), where it was held that the subsequently adopted son cannot divest a sole surviving coparcener of his right over the joint property and hence cannot challenge any alienation made by him.

In CIT v. Anil J. Chinai, (1984 148 ITR 3 Bom), it was held that the sole coparcener can dispose of the coparcenary property as if it were his separate property, he can sell or mortgage it or gift it.

Coparcener's Right to Challenge Alienation

If the father, Karta, coparcener or sole surviving coparcener oversteps their power in making the alienation, it can be challenged and set aside by any other coparcener who has an interest in the property, from the time he comes to know of it till the time the suit is barred due to limitation. Article 126 of the Indian Limitation Act 1908 sets the period of limitation for a suit by son the challenging alienation made by the father as 12 years, Article 144 gives the period for alienation made by Karta as 12 years, in case of mere declaration the period is 6 years. The burden of proof is on the alienee to prove that it was for a valid purpose. It has been laid down that in case the alienation is made by the father for the payment of his debts, then the burden of proof is on the alienation to prove that he had taken sufficient care to determine that it was for the payment of debt. The sons can rebut this assumption only by proving that the debt was Avyavharik i.e. immoral, in such a case the burden of proof that the debt was tainted is on the son.

1. Coparcener who was in the womb at the time of alienation: A coparcener who is in the womb of his mother at the time of alienation is empowered to set aside such alienation after his birth. Under Hindu Law, a son conceived is in every aspect equal to a son born. This also applies to an alienation made by a sole surviving coparcener.

2. After born coparcener: A sole coparcener or Karta who has no male issue may legally alienate joint family property without the need for a judicial order. A son born thereafter cannot challenge such alienation. If a father who has sons alienates them and a son is born to him before all the sons have died unexpectedly, or even after the death of all the sons present at the time of alienation, the son who was born later may contest the alienation, provided that the right is not barred by limitation. He has this right because of the overlap of lives, but it is necessary that at the moment of his conception certain coparceners (even one) had an uncontested right to challenge the alienation.

3. Adopted Son: Adopted son subsequent to alienation has no right to challenge alienation, even if the alienation was invalid on the date when it was made. As a result, it is clear that a coparcenary relationship exists inside a Hindu joint family, commencing with the male member who is the senior by a factor of four up to the fourth degree.

With the approval of the other Coparceners, this senior-most male member is regarded as the Karta of the joint family and has the authority to alienate the joint family's property. However, such alienations can only be carried out when it is necessary legally, for the advantage of the estate, or to fulfil essential duties like religious or pious requirements. In addition to the Karta, a shared family property may be transferred by the father, a Coparcener, or the lone surviving Coparcener with the approval of the other Coparceners or by self-transfer, as appropriate.

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