HUF property and its partition by Coparceners

HUF-property

HUF or Hindu Undivided Family, consists of several members related to each other through a common ancestor. Coparceners are a small unit of four generations of lineal descendants of a common ancestor within this family. The property held jointly by the members of the family is called HUF property, and only the coparceners can seek partition of the same.

What does HUF actually infer? 

It is a family comprising of lineal descendants of a common ancestor and their wives and unmarried daughters. Its creation is automatic when the person gets married. A child is integrated into it at the time of birth. It cannot be formed by a single person but requires at least two. 

Any number of persons can be members of HUF. They may have a remote relationship with the common ancestor and are connected through:

  • Marriage
  • Birth 
  • Adoption

Coparcener

A coparcener is a member who acquires right in the HUF property by birth. The coparcenary is formed of four male lineal descendants and also consists of collaterals, i.e. uncles, cousins and so on, within this four generation. Wives are not coparceners. 

After the amendment in the Hindu Succession Act, 1956, in the year 2005, daughters are also coparceners. 

The concept of HUF property

For existence of HUF, it is not necessary that there should be a joint estate. It can exist without any property. 

There is a legal presumption that the property of the Hindu Undivided Family is joint. Its income belongs to all the members. If a member claims to hold separate property, the same has to be proved.

Read: Partition Lawsuit

The Income Tax Act recognizes HUF as a separate entity. A PAN number separate from its members is allotted to it. The income is taxed separately from its members. 

HUF can acquire property in any of the following manners: 

  • Gift
  • Will
  • Ancestral Property 
  • Property purchased by paying sale consideration out of HUF income
  • Property added in the common pool

Each member has a right to maintenance from the joint property

Partition gets affected:

  • By agreement to divide the property
  • By filing suit
  • By giving notice: The coparceners can give notice of his intention to severe his share from the HUF property.
  • Partition by conduct: The conduct like severance of business, severance of residence (house), severance of income and expenditure, is a clear intention of a coparcener to sever ties with the HUF.
  • By Karta: The Karta of the family can seek partition and divide the property
  • Automatic severance: When a coparcener converts to another religion, there is an automatic severance of that person from the HUF. But other remaining members continue to form HUF.

Read: Property Title Search

Total and Partial Partition

In total partition, the joint family status comes to an end, and the members get separated with their share. 

In partial partition, only a few members get separated, and others remain joint. Or there is a separation of some properties, and other remains intact.

Partition under the Income-tax Act is recognized only if it is full both as to the property and the persons.

Share of each coparcener fluctuates with the addition and deletion of members by birth and death.  After partition, the coparcener becomes the absolute owner of his share and is free to dispose of the same. In case he dies intestate, the share passes to the legal heirs as per the Hindu Succession Act.

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How to file a partition suit for a property in India

how to file a partition suit for a property in india

Partition is a division of property among those who are entitled to the same. In case of property held jointly, if all the co-sharers decide mutually among themselves to divide the property and agree for specific share, there is partition by mutual consent. If there is a dispute, the parties file a suit for partition in a civil court.

Existence of a Right:

A person can claim a share if he has a right in the property. The right can be there:

  • As a legal heir
  • As a co-owner/co-sharer
  • Through any document conferring the share – Will, Gift Deed, Sale deed etc.

When the partition suit is filed, Court may fix an enquiry and appoint a Court Commissioner to ascertain the existence of the right of the party and its share in the suit property.

Read More: Division of property between brother and sister after father’s death

Process of filing a partition suit:

Partition suit is a civil suit, and the process of filing is the same as that of a civil lawsuit.

A. Drafting and filing of plaint – A plaint is nothing but a statement of facts of the case wherein the claimant explains and justifies his claim for the share in the property.

  • A plaint is drafted as per the formats applicable in a particular court. Generally, it is the same everywhere in India with a few differences in presentation.

B. Affixing the appropriate court fee – Requisite court fees must be deposited at the time of filing the plaint. It is essential to submit an accurate court fee. The court fee depends upon :

  • Nature of the case- If the parties are in joint possession of the suit property, the amount of the court fee is fixed. The court fee does not depend upon the market rate. If the party is not in  possession, the court fee is paid on his share as per the market rate.

The court fee structure varies from State to State.

Read More: Division of Property Among Daughters and Daughters-In-Law

C. Placing on record the relevant documents: The party in support of its claim submits the relevant documents. The documents can be-

  • Title deed – It is the primary document which confers the title to justify share in the joint property. It can be in original. If original not available, certified copy can be obtained.
  • Valuation of property- A certificate is issued by the Office of Sub Registrar confirming the value of the property as per the market rate.

Any other document can be filed, which establishes the right in the suit property or which fails the claim of the defendant.

The party filing the suit may or may not possess the original documents. Certified copy of the same can be obtained from the offices of concerned authorities.

Read More: Property rights of a wife after husband’s death

Who can file?

Any or all of the co-owners can file a partition suit. The co-owners can be legal heirs also if it is a family property. Anyone having a share in the property which is intended to be partitioned can file the suit.

Where to file?

A suit for partition is filed in a Civil Court having jurisdiction over the area where the property is located.  If there are several properties, the lawsuit can be filed in any one of the courts.

The partition suit results in a decree which ends the joint nature of the property. Court may order sale of the property and distribution of sale proceeds.

Division of property between brother and sister after father’s death

Division of property between brother and sister after father death

Under Hindu Law, brother and sister are at par when it comes to the devolution of property of a father dying intestate.

When a Hindu male dies intestate (without leaving a will), his property devolves upon the legal heirs as per Section 8 of the Hindu Succession Act, 1956. The legal heirs are as follows:

  • Class I heirs
  • Class II heirs (if no one in class I)
  • Agnates (if no one in class II)
  • Cognates (if no one in agnates)

Class I heirs as mentioned in the Schedule of the Act are:

  • Son
  • Daughter
  • Widow
  • Mother
  • Son of a pre-deceased son
  • Daughter of a pre-deceased son
  • Son of a pre-deceased daughter
  • Daughter of a pre-deceased daughter
  • Widow of a pre-deceased son
  • Son of a pre-deceased son of a pre-deceased son
  • Daughter of a pre-deceased son of a pre-deceased son
  • Widow of a pre-deceased son of a pre-deceased son
  • Son of a predeceased daughter of a predeceased daughter
  • Daughter of a deceased daughter of a predeceased daughter
  • Daughter of a predeceased son of a predeceased daughter
  • Daughter of a predeceased daughter of a predeceased son

There are 16 class I heirs. Eleven are females, and 5 are males.

Rules for distribution of property among brother and sister (both are class I heirs):

  • Class, I heirs get their share simultaneously and to the exclusion of others. As per the rules, son and daughter (brother and sister) are entitled to an equal share in the property.

e.g. a father dies leaving behind a mother, a widow and one son and two daughters, his property would be divided into five equal parts, and each of these legal heirs will get a one-fifth share.

Stepson or stepdaughter: Daughter and son must be natural or adopted children. Stepchildren are not included in the definition of son and daughter under the Act.

  • Children of predeceased son or daughter will take between them one share, e.g. If the daughter is predeceased and has two children, then in the above example, the property is divided into five parts, and one-fifth share of the deceased daughter will be shared further by these two children equally.

Ancestral or self-acquired property

The daughter (sister) has equal right as a son (brother) in the ancestral as well as the self-acquired property of the father.

Under Hindu law, there is a concept of coparcenary. It is a small unit within a joint Hindu family and consists of male lineal descendants’ of four generations with the eldest male member as the head and his male lineal descendants as coparceners. After the amendment of 2005 in the Act, the daughters are considered as coparceners and have equal right in the ancestral property as a son.

Marital Status: Marital Status of the daughter (sister) makes no difference.

Date of birth of a daughter (sister): The Amendment of 2005 came into effect on 09.09.2005. The daughters born before or after this date are considered as coparceners.

If the daughter is not living on 09.09.2005, her children are entitled to get a share in ancestral property.

If the father is not living on 09.09.2005, the daughter cannot seek partition of ancestral property.

Testamentary succession: However, in case of self-acquired property of the father, he can make a will of the same as per his desire, and the property bequeaths to the person named in the will.

In the case of ancestral property, a Will can be made by a father once he has acquired his share.

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Division of Property Among Daughters and Daughters-In-Law

Division of Property Among Daughters and Daughters-In-Law

Daughters and daughter – in – laws are on different footing when it comes to shares they receive on division of property in a family. Devolution of property by inheritance or succession is influenced by personal laws and is governed by various statutes.

Position of daughters: Equal right as a son

In the case of Hindus (Jains, Sikhs and Buddhists) division of property is governed by Hindu Succession Act, 1956.

Hindu law recognises the concept of a Hindu Undivided family. Only males up to four generations (lineal descendants from a common ancestor) are coparceners, and all others are members of the family. After the amendment of 2005 in the 1956 Act, daughter whether married or unmarried is a coparcener. After marriage, daughter ceases to be a member of father’s HUF but still, she is a coparcener. A daughter has the rights and liabilities of a coparcener.

  • She can demand partition, has a birthright in the undivided family property.
  • She can be a Karta also, i.e. head of the family if she is the eldest coparcener.
  • If the daughter dies intestate, her share in the HUF property passes by succession to her legal heirs as per section 15 of the 1956 Act.
  • A daughter is a coparcener but a daughter in-law is only a member of joint family.

In case of self-acquired property of the father, son or daughter has no birthright in the same. If the father dies intestate, devolution of property takes place as per rules of 1956 Act under which daughter is covered as Class I heir and has an equal right along with son and other legal heirs.

Read: Do grandchildren have a right to their grandfather’s property?

Daughters also have a share in mother’s property. Daughters and sons have equal rights in the property of their mother.

Position of daughter- in- law: Limited Rights

A daughter in law has no right in the ancestral or self-acquired property of her in-laws.

After the death of her husband, i.e. as a widow, she has the right in her husband’s property left behind by him. This property can be either ancestral or self-acquired. The right acquired by her is as a widow of the deceased husband.

Thus if a father dies intestate, a daughter has an equal right in his property along with her brother, but the daughter in law has no right in the property of her father- in law till the time her husband is alive. After the death of her husband, she is entitled to get the share in the property of her husband along with his other legal heirs.

Read: Property rights of a daughter in a hindu family

The daughter in law has a right to residence only till the time matrimonial relationship exists with her husband. The right of residence is there even if the house is a rented accommodation. If the property is a self-acquired property of her father in law, daughter in law has no right of residence as the said house is not shared house because the husband has no share in it.

A widowed daughter in law has right of maintenance from her father in law under certain conditions only, as prescribed in Hindus Adoption and Maintenance Act, 1956.

Division of property:

When there is a division of property in a joint Hindu Family, the daughters enjoy equal right along with sons. The daughter in law has no right in the property of her in-laws. She acquires rights to the in-law’ property only through her husband.

The daughter in one family becomes daughter in law in another family after her marriage. She has full rights in the property of her father even after marriage but limited rights in the property of her in-laws.

Filing partition of property with joint owners in your absence can become a nightmare, Beware!

Life is very hard for some people. When a person goes through a lot of financial hardships, getting a property worth crore of rupees is nothing less than bliss.

Can we imagine cases, where people are not even aware that they are being duped by their own siblings or close relatives ?

We were approached by a person who had gone abroad many years ago. After the demise of his father, he and his mother had faced a lot of hardships in life. Their relatives informed them they have some property in India and they are filing the partition of the same to give them their share. They were happy to hear the news and gave the power of attorneys to do all the partitions on their behalf.

Since they never been to India from a long time so they had no idea about the actual value of the land and property. They were shown a rosy picture by their relatives and they fell into the trap. Anyhow somebody told them about our firm and they came for a free legal consultation just to check on whatever they are being told by their relatives is correct or not.

Our team did all the appropriate research work. We carried massive search to inquire if any joint ownership existed in the client’s father’s name. We ultimately got the success. The property was found. Partition was done among the co-owners and shares were transferred to legal heirs but to our shock the whole partition was biased. Their relatives took all the expensive chunks to themselves and gave them the least valued portions.

We immediately took the actions and devolved all the partition their relatives had done. It was a massive work that our team did by making several applications and explaining the ill intentions their relatives had. After that, we filed the new partition where everybody got the fair share of the land and property.  The family received their rightful share worth crores of rupees.

How do you approach partition of joint property?

Immovable Property is generally owned jointly. Joint property means a property where more than one party is the owner of the property.

Arising of disputes is inevitable in such properties. Partition is a solution. It is a division of property as per the share of each co-owner. Partition of joint property can take place by:

  • mutual understanding among co-owners
  • demanding one’s share

For partition, we need to know our share in the joint property. Share can exist due to inheritance or through some title document (sale deed, will etc). In the absence of clear title, other documents like land records, tax receipts, survey documents, help to prove a title.

What about certified copies of the documents related to property?

If a party has no document available with him, he can file for inspection of documents in the Registration Office where the property is located and get the certified copies of certain documents.

  • Shares in joint property:

Till the time property is joint, shares of co-owners are undivided. After partition, each co-owner gets a share in the joint property as per his entitlement according to the law.  Law of inheritance is also applicable when partition takes place. Each co-owner becomes the absolute owner of his property (share). He is free to dispose of the property.

  • Partition deed for smooth partition:

A partition deed, drawn in a clear and unambiguous manner, executed on a stamp paper is required to be registered at a place where the property is situated.  Names of the parties and their respective shares need to be clearly mentioned. It must carry the date from which the partition will be effective

  • Partition by Family Settlement Agreement:

The partition can take place through a family settlement agreement. It is drawn on the same lines as a partition deed but does not require any registration or stamp duty. It need not necessarily be a written document, can be oral based on mutual understanding.

  • Partition by filing suit in court:

Here, the court determines the share of each person and property is divided accordingly. It is filed in the court which has the jurisdiction in the area where the property is located.

Why do you need expert guidance?

Generally, the partition is not very easy as the shares in the property are not well defined.  A partition deed executed under expert guidance and legal advice helps to sail through such problems.