Setting Aside Gifts:
According to the Mitakshara Law, a coparcener cannot make a gift of the coparcenary property, including his own interest therein. If, therefore, he makes such a gift and the same is objected to by any coparcener, the Court will set aside the gift in its entirety.
It may be noted that such a gift is not even valid to the extent of the interest of the donor himself in such property. The rule does not, however, apply to a father, who can make gifts, subject to certain conditions already discussed earlier in this Chapter.
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Setting aside Sales and Mortgages in Maharashtra, Gujarat and Tamil Nadu:
ADVERTISEMENTS:
In Tamil Nadu, Maharashtra and Gujarat, if a member of a Mitakshara joint family sells or mortgages more than his own interest in the joint family property, the other members can have such an alienation set aside to the extent of their own interest. The only exception to this rule is where an alienation is for a legal necessity, or is for payment by a father of any antecedent debt, not incurred for immoral purposes. However, the entire alienation cannot be set aside in such a case, because in these States, a coparcener can alienate his own interest in the joint family property. Likewise, if any other coparcener has consented to the alienation, the share of such a coparcener will also be bound by the alienation.
In Ftottala v. Pulicat (1904 27 Mad. 162), the Court has held that the rule that a coparcener cannot make a gift of his share, cannot be evaded by making a sale at a grossly inadequate price.
It may also be noted that if an alienation is not for legal necessity or for payment of an antecedent debt, and is therefore set .aside by the other coparceners, the transferee is not entitled to a refund of a proportionate part of the purchase-money in respect of those shares.
Setting aside Sales and Mortgages in Other States:
If a member of a joint family governed by the Mitakshara Law as prevailing in West Bengal, Bihar and U.P. sells or mortgages the joint family property, or even a part thereof, without the consent of his coparceners, the alienation is liable to be set aside wholly, unless it was for a legal necessity or for the payment by the father of an antecedent debt.
ADVERTISEMENTS:
Thus, such a purported alienation does not even pass the share of the alienating coparcener. In case of such an alienation, the other coparceners can obtain a declaration that the alienation is void in its entirety. As such an alienation does not bind the share of the alienor himself, it cannot similarly bind the share of a consenting coparcener also.
Where a sale is effected by the father, and the suit is brought by the sons in their father’s life-time to set aside the sale (the sale not being one for a legal necessity or for payment of an antecedent debt), the question may arise as to whether the sons are entitled to a decree without refunding the whole or any part of the purchase money to the purchaser.
There is a conflict of opinion on this point, and the Calcutta High Court has held that in such a case, they would have to refund the whole of the purchase money. The High Courts of Lahore, Allahabad and Orissa, on the other hand, have taken a contrary view.
Objection to alienation by Coparceners existing at the time of the alienation:
If a coparcener makes an alienation in excess of his power, it can be set aside, to the extent mentioned above, at the instance of any other coparcener who was in existence at the time of the completion of the alienation. A similar right is given to a coparcener, who though born subsequent to the date of the alienation, was in his mother’s womb at the date of such an alienation. The reason behind this rule is that, under the Hindu Law, a son who is conceived is, in many respects, as good as a son who is born.
ADVERTISEMENTS:
Thus, A, who is governed by the Mitakshara Law, makes a gift of certain ancestral property to B. As on the date of the gift, A has no son, but a son is born to him two months later. This gift can be
set aside at the instance of the son, as he was in his mother’s womb at the date of the gift. As the transaction is a gift, it will be set aside altogether, and not merely to the extent of the son’s share.
If an alienation is valid when made, it cannot be impeached by a son who is adopted after the date of the alienation.
Limitation for setting aside alienations:
The period of limitation for setting aside an alienation by a father of joint family property is twelve years from the date on which the transferee takes possession of the property. If, however, the transferee has not taken possession of the property, the only right of the son is to obtain a declaration to the effect that the deed of transfer is invalid, and the period of limitation in such a case is six years.