He who has not got the power of alienating is under the necessity of retaining.
Explanation & Origin
It is the Latin term which means he who has not got the power of alienating is under the necessity of retaining. It can also mean alienation of property and mostly seen on family law.
Explanation – Alienation means transfer of property, such as gifts, sales and mortgages. Alienations have an added importance in Hindu Law, as, ordinarily, neither the Karta nor any other coparceners singly, possesses full power of alienation over the joint family property or over his interest in the joint family property.
A father possesses more power even than Karta as there are situations in which only the father has the authority to make alienation.
In the case of Gur Narain vs Lallu Singh & Harbans Singh it is stated that the grantor may stipulate or provide for various advantages to himself or to others arising out of the property, and so far diminish the advantages of the proprietor in it, and then on page 190 it is said on the authority of Jagannath that the gift of property is valid though it be accompanied by the donor’s retention of a life-interest. No distinction was, however, made by Jagannath between a gift and a testamentary disposition. (1) where a gift of a muafi estate with a reservation of the income of that share, without power of alienation, for life was held to be valid, was a case under the Muhammadan Law and is not applicable to the present case.
In the case of Bankey Lal And Ors. vs Durga Prasad & Ors it was observed that The position of the sons when they have separated from their father and taken away their shares of the family property by partition is in some respects different. As regards debts which have been incurred by the father before the partition took place and had been for family necessity or benefit, the liability continues on all the members even after the separation. The reason is obvious. These debts had been incurred by the manager for the benefit of all and. his capacity was analogous to that of ‘an agent. All the other members were therefore principal debtors, but their liability was not personal and was confined to the joint property that may be available. They cannot put an end to their liability by a private partition of the property among themselves, to which of course the simple money creditor would not be a party. Their separate properties are however safe. If these debts were secured or property had been transferred in payment of such family debts such alienation would stand. Secured debts incurred by the father where there was no family necessity or benefit stand on the same footing as the unsecured separate debts of the father. The liability of the sons for the payment of such debts cannot rest on the power of the manager to bind the family. It must rest solely on the pious obligation of the sons to pay their father’s debts. The Courts in India have consistently held that the separated sons are not liable to pay debts incurred by their father, subsequent to the partition, even though they still retain shares in the family property.
In the case of Banwari Lal And Ors. vs Sheo Sankar Misser & Ors it was obseverd that The plaintiffs valued the property in dispute at Rs. 400 and approximately stated the mesne profits antecedent to suit at Rs. 1,082-9-15. They paid Court-fees on the plaint upon Rs. 1,086-5-15, namely, upon ten times the Government revenue payable for the disputed property under Section 7, Sub-section 5 Clause (a) of the Court Fees Act, as also upon the amount of mesne profits. The defendants first party, now appellants before this Court, resisted the claim on the ground of limitation, as also on the allegations that the property did not belong to the joint family but was the exclusive property of the second party defendant, that the alienation had been made with the consent of all the members and for legal necessity, and that in any event the plaintiffs were not entitled to recover possession till they offered to refund the purchase-money. The Court of first instance found that the plaintiffs and the second party defendants were members of a joint Hindu family governed by the Mitakshara law, that the disputed property, which had been purchased on the 8th September and 7th October 1890, in the name of the defendant second party, was joint family property, that the second party defendant had no right to alienate the same without the consent of his co-parceners, that part of the consideration was applied in the discharge of a prior mortgage created on the 27th July 1892, for family necessities and that the remainder had been appropriated in payment of another family debt and for necessary family purposes. The Subordinate Judge also held that the first plaintiff, who is the father of plaintiffs Nos. 2 to 7 and grandfather of plaintiffs Nos. 9 to 14, assented to the transfer. He dismissed the suit, however, on the ground that it was barred by limitation under Article 91 of the second schedule to the Limitation Act. Upon appeal the learned District Judge held that the suit was not barred by limitation inasmuch as it must be treated in substance as a suit for recovery of possession from persons who had not, acquired any valid title under their purchase, and, that in any view, as some of the plaintiffs were infants, who did not and could not consent to the alienation at the time it was made, no question of limitation could arise. Upon the question of the mode in which the consideration for the conveyance had been applied, the District Judge apparently doubted whether it was spent for family benefit, but he did not arrive at any conclusive finding upon this point. He held, however, that the second party defendant, as one of the members of a joint Hindu Mitakshara family, was not competent to alienate the property without the assent of all the co-parceners, and that, therefore, all the plaintiffs were entitled to recover the disputed property. In this view of the matter, he reversed the decision of the Court of first instance, decreed the suit and directed the mesne profits, to which the plaintiffs might be entitled, to be ascertained in execution.
Edited by Vigneshwar Ramasubramania
Approved & Published – Sakshi Raje
 (1923) ILR 45 All 115
 AIR 1931 All 512
 1 Ind Cas 670