What are the Rights and Remedies of the Alienee (Purchaser) of a Coparcener’s Undivided Interest in the Coparcenary Property?

The following are the nine rights and remedies of the alienee (purchaser) of a coparcener’s undivided interest in the coparcenary property:

1. Right to joint possession:

The law relating to a purchaser’s right to joint possession of the alienated property is not well-settled, different High Courts having expressed conflicting views on the point. However, the position can be summarised as under:

The purchaser of an undivided interest of a coparcener in specific property—

(a) At a Court sale in the State of West Bengal and U.P., or

(b) At a Court sale or a private sale in the State of Tamil Nadu, does not acquire a right to joint possession with the other coparceners. He is only entitled to compel a partition of such property.

However, according to the Mitakshara Law as applied in Maharashatra and Gujarat, if the purchaser is a stranger (i.e. not a coparcener of that family), and has not obtained possession of the property, he cannot be given joint possession with the other coparceners, and his proper remedy would be to sue for a partition. But, if such a person has obtained possession, the non-alienating coparceners are entitled to have joint possession with him.

2. Right to partition:

In Tamil Nadu, Maharashtra and Gujarat, the purchaser of the undivided interest of a coparcener in specific property belonging to the joint family, is not entitled to a partition of that property alone. This is so because his vendor, (i.e. the coparcener) could not have himself claimed it, unless the other coparceners gave their consent. His only remedy would be a suit for general partition.

But in Allahabad and Calcutta, the Courts have held that the purchaser need not file a suit for a general partition, and that he is entitled to sue for a partition of that specific property. These decisions, however, do not appear to be sound.

The other coparceners (i.e., the non-alienating ones) are entitled to sue the purchaser for a partition of the alienated property, without bringing a suit for general partition. But one such coparcener cannot sue the purchaser for his own share of the alienated property. (Shyam Sunder v. Jagannath, 1923 2 Pat. 925)

3. Right to sue for partition after vendor’s death:

The purchaser of the interest of a coparcener need not sue for partition only in the life-time of the coparcener. He may do so even after the death of the coparcener. In other words, his right to partition is not lost by the death of the coparcener.

4. Right to share on partition:

The share to which a transferee is entitled on a partition is the share to which the transferor is entitled at the date of the alienation, and not at the date when the transferee seeks to take the possession of such property.

5. Equitable right of the purchaser on partition:

The transferee of specific property or of the undivided interest of a coparcener in such property has, on a general partition, an equitable right to have such property or his testator’s share in that property (as the case may be) assigned to him, if this can be done without any injustice to the other coparceners. If, however, any liabilities attach to the transferor’s share, the transferee can recover from the transferor, property of an equivalent value (in substitution of the property sought to be transferred) from out of the other properties allotted to the transferor as his share at the time of the partition.

6. Right to mesne profits:

The purchaser of the interest of a coparcener is not entitled to mesne (past) profits between the date of the purchase and the date of the suit for partition. Where, however, there is a partition of the family without a division of property by metes and bounds, the purchaser of the undivided share of one of the members of the family is entitled to claim mesne profits from the members who are in possession of such property.

7. Right to sue for specific performance:

If, before the completion of the sale, the coparcener who has sold his interest dies, the purchaser is nevertheless entitled to sue for specific performance of the agreement for sale.

8. Right to impeach previous alienations:

The purchaser of the entire interest of the whole family in the coparcenary property which is alienated, is entitled to challenge or object to the previous alienation in respect of such property.

9. Purchaser takes subject to equities:

The transferee of a coparcener’s interest takes the property subject to all the charges, encumbrances and liabilities affecting such property or the coparcener’s interest therein. Thus, for instance, the purchaser of a son’s undivided family property takes that interest subject to the liability attaching to such interest to pay the personal debts to his father, provided such debts are not tainted with immorality.

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