Alienation of property means the transfer of property from one person to another by way of gift, will or mortgage. The person who sold the property is an alienor and the purchaser of such property is alienee.
It is the duty imposed by law on alienee of joint family property to make bonafide and proper enquiries as to the existence of legal necessity. He is not bound to see where the money taken form alienee is investment. If he made enquires on his part it’s sufficient for justifying his bonafide intention.
ALIENATION BY KARTA
When the alienation of the property is valid there is no problem and the alienee is entitled to his share of the property which he purchased from karta. In case the alienation is by the way of the mortgage then all the rights which are available to any mortgagee is available to alienee also.
But when the alienation is not valid, what are the rights and remedies available to alienee?
In states like Bombay, Madhya Pradesh, Madras improper alienation by karta can be set aside in respect of non-alienating coparcener. There is no equitable right available to alienee regarding the sum of money paid by him.
In NARAYAN VS SARNAM SINGH the court held that there is no state where alienee is entitled to any equity in respect of money paid by him to the alienor.
In HASMAT VS SUNDAR the Calcutta high court held that if the sale is made by father and the sons get that set aside then the alienee can recover the amount paid by him to the alienor. But the other high courts are not agreed by this view of Calcutta high court as this is against the antecedencey rule (in presently scenario this rule is stands repealed).
When the alienation is made by the coparcener of his undivided share of joint family property, than the alienee is entitled to the share of coparcener at the time of alienation in joint family property.
The fluctuation in interest after such alienation doesn’t have any effect on the share of alienee purchased from coparcener. He can file suit for partition for taking his possession.
RIGHT TO PARTITION: Alienee can file suit for partition for taking his share out of joint family property. Non alienating coparcener can also file suit against the alienee for partition for specific property. But in such suit alienee cannot claim general partition. If he wants general partition, he can file separate suit for that in court.
RIGHT TO MESNE PROFITS: Alienee is not entitled for mesne profit after the purchase of property and till the partition takes place.
PURCHASER TAKES THE PROPERTIES SUBJECT TO CHARGES AND LIABILITY