Succession

Whether a Coparcener can Sale or Mortgage the property in undivided Coparcenary Interest

 

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Sale or Mortgage of undivided interest in Bombay, madras and Madhya Pradesh

According to Mitakshara law as administered in Bombay and Masrass states, c coparcener may sell, mortgage, or otherwise alienate for value, his undivided interest in coparcenary property without the consent of the other coparceners.[1] Where the sale was for consideration, there could be no bar against a joint owner against selling his share and the sale could not be set at naught.[2]

The same rules apply in Madhya Pradesh.[3]

When in Hindu undivided family consisting of father, son and daughter, the father sold half of his share in the property to the daughter and it was proved that the sale was valid and not a sham one, the son’s suit for injuction claiming the same properties as his absolute properties, was liable to be dismissed and the daughter would be entitled to a decree of partition.[4]

Sale or Mortgage of undivided Interest— Other States

According to Mitakshara law as administered in West Bengal and Uttar Pradesh, no coparcener can alienate even for value, his undivided interest without the consent of the other coparceners,[5] unless the alienation be for legal necessity, or form payment by a father of antecedent debts. The consent of the other coparceners is necessary, even if the alienation is made in favour of a coparcener.[6]

The same rule applies to cases governed by Mitakshara law as administered in Bihar and Orissa,[7] Punjab,[8].

 

[1] Tukaram v. Ramchandra, (1869) 6 Bom HC AC 247; Vasudev v. Venkatesh, (1873) 10 Bom HC 139

[2] Bachna Ram v. Ratna Ram, AIR 2012 Raj 114: 2012 (2) WJN 626

[3] Syed Kasam v. Jorawar Singh, (1922) 49 IA 358 : AIR 1922 PC 353; Bhojraj v. Nathuram, (1917) 37 IC 498 : 12 NLR 161 : AIR 1916 Nag 25

[4] Nallappa Gounder v. Lakshmi, AIR 1993 Mad 78

[5] Madho Prashad v. Mehrban Singh, (1891) 18 Cal 157: 12 IA 194; Sadabart Prasad v. Foolbash, (1869) 3 Beng LRFBR 31

[6] Chandar v. Dampat, (1894) 16 All 369

[7] Jwala Prasad v. Maharajah Protab. (1916) 1 Pat LJ 497

[8] Alla Ram v. V. Atma Ram, (1933) 14 Lah 584

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