Sale or mortgage of coparcener property by a member in Bombay and Madras

In these States no coparcener can alienate his undivided inter­est without the consent of other coparceners even-for value, (Sadabarat v. Foolbaksh (1869) 3 Bengal L.R.B.R. 31 ; Kali Shankar v. Nawab Singh, (1909) 31 All. 507, 3, I.C. 909], A transfer even to a coparcener is invalid without the consent of other coparceners. A coparcener with the consent of other copar­ceners can transfer his share for value.

A coparcener can, for value, sell or mortgage his undivided interest in the family property without the consent of the other coparceners. (Fakirappa v. Chandappa and Viraswami v. Ayyaswami).

But such alienation is not void and voidable at the option of other coparceners even in U.P. and West Bengal.

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Gift and will or undivided interest in all the States of India where Mitakshara Law is applicable-No coparcener can alienate his undivided interest in coparcenary property by gift or will.

Such transaction is void altogether. He may, however, make a gift of his interest with the consent of other coparceners. (Tagore v. Tagore (1872) 9, Beng. L.R. 377, 396, L.R. Sup. Vol. 47, 66].

The undivided share of a coparcener can in all the States be seized and sold in execution of a decree against him for his personal debts. (Deendayal v. Jagdeep Narain, 3 Cal. 198 P.C.].

The rights of the purchaser of coparcenary interest-The pur­chaser of the coparcenary interest is not entitled to possession of any specific portion of the property, by merely acquires the right to compel a partition, which a coparcener, whose interest he has purchased, might have asked for before sale.

According to Bom­bay, Madras and Calcutta High Courts the purchaser must sue for a general partition that is a partition not only of the property in which he has purchased an interest, but also of all the properties in which the coparcener whose interest he has acquired was joint with the others. But according to Allahabad High Court, he need not sue for a general partition but is entitled to partition only of the property in question.

Such a purchaser is bound to sue for partition in the life-time of the coparcener. He may sue after, for the right, which he has to a partition, is not lost by the death of the coparcener.

The share to which a purchaser is entitled on partition is the share to which alienor was entitled at the date of alienation and not at the date when the alienee seeks to reduce his interest into possession. The reason is that the purchaser does not; by his purchase acquire the status of coparcener. On the other hand, the status of the coparcener whose interest has been sold remains unaffected.

Then suppose, A, B and C are members of a coparce­nary, A’s interest is purchased at an auction sale by P. Then B dies. B’s interest would pass by survivorship to A and C. If P sues for partition, his share would be one-third and not one-half. Simi­larly, if both B and C die before partition, two-thirds of the prop­erty would vest in A as the sole surviving coparcener, and P’s interest would not be more than one-third.