The Manager’s power to alienate (i.e. transfer) coparcenary property has already been discussed above. It is to be noted that under Hindu Law, only the following persons have the power to alienate coparcenary property, so as to pass a good title to the transferee:
(1) The whole body of coparceners, if all of them are adults.
(2) The manager, to the extent mentioned below.
ADVERTISEMENTS:
(3) The father, to the extent mentioned below.
(4) A sole surviving coparcener, in the circumstances given below.
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The powers of each of the above four persons are discussed below in necessary details. It is to be remembered that no other coparcener can alienate coparcenary property, unless he is authorised to do so.
(1) The whole body of coparceners:
ADVERTISEMENTS:
If all the coparceners are adults, the whole body of coparceners can alienate the coparcenary property for any purpose. As seen above, if a manager alienates joint family property with the consent of all the coparceners, all of them being adults, such an alienation would be valid, even if it is not for a legal necessity. If such an alienation is made without the consent of all the coparceners, it would bind the shares of the consenting members, in Tamil Nadu, Maharashtra or Gujarat. In West Bengal and U.P., however, such an alienation would not bind the share of the person alienating or of the other consenting members.
(2) The manager:
The manager can alienate joint family property (even without the consent of all the coparceners) if such alienation is made for a legal necessity or for the benefit of the estate.
(3) The father:
A Hindu father, as such, has special powers of alienating coparcenary property, which no other coparcener enjoys. In the exercise of this power—
(a) He can make a gift of ancestral movable property, within reasonable limits, for the purpose of indispensable acts of duty, as also for gifts through affection, gifts for support of the family and relief from distress (as explained at length earlier in this Chapter);
ADVERTISEMENTS:
(b) He can make a gift of ancestral immovable property, within reasonable limits for pious purposes (as explained earlier in this Chapter);
(c) He may also sell or mortgage ancestral property, whether movable or immovable, including the interest therein of his children, grandchildren or great-grandchildren, for the payment of his debts, provided such a debt is an antecedent debt and was not incurred for immoral or illegal purposes. (This has also been discussed earlier.)
(4) Sole surviving coparcener:
A sole surviving coparcener is entitled to dispose of the coparcenary property as if it was his separate property. He may sell or mortgage the property without any legal necessity. Likewise, he may make a gift of such property. If a son is born to such a coparcener after the alienation, such a son cannot object to such an alienation.
Similarly, a sole surviving coparcener can dispose of the property by will. However, as the will operates from the date of the death of the testator, if a coparcener comes into existence before his death, the will would not take effect, and the property would pass by survivorship. It will be seen that, in such a case, the coparcener (who makes the will) cannot be said to be the sole surviving coparcener.
