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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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.

Property law in India for daughters

Property law in India for daughters

The property laws for daughters and sons were different until the Hindu Succession Act, 1956, but were amended in 2005. Earlier, the sons had complete power over the father’s property. Daughters enjoyed the property right only till they got married. After marriage, a daughter was considered a part of her husband’s family.

Hindu Undivided Family (HUF)

Under the Hindu law, a HUF is a group including more than one person, all lineal descendants of a common predecessor/ancestor. The term HUF is supposed to apply to by people of Hindu, Jain, Buddhist, or Sikh faith. Currently, the laws keep the daughters in consideration and take care of their interests too.

Laws favouring daughters in their fathers’ properties:

Daughters’ rights in Hindu Succession Act, 2005

  • Earlier when a daughter got married, she discontinued being part of her father’s HUF which was seen by many as curtailing women’s property rights.
  • On 9/9/2005, the Hindu Succession Act, 1956, which governs the transference of property among Hindus, was altered.
  • According to the above Act, every daughter, whether married or unmarried, is now considered a member of her father’s HUF. She can even be appointed as ‘karta’/manager of father’s HUF property.
  • The amendment now provides for such laws that give daughters the same rights, duties, disabilities and liabilities that were earlier limited to sons.
  • However, a daughter can avail the benefits granted by the amendment only if her father passed away after 9/9 2005.
  • Moreover, the daughter is eligible to be a co-sharer mainly if the father and the daughter were alive on 9/9/ 2005.
  • Equal right to be coparceners
  • A coparcenary includes the eldest member of a family and three generations.
  • Earlier, it was said to include a son, father, a grandfather, and a great-grandfather.
  • Now women of the family can be a coparcener as well.
  • The coparceners obtain a right by birth over the coparcenary property.
  • A member of the coparcenary can further sell his /her share in the coparcenary to a third party.
  • A coparcener can file a suit asking partition of the coparcenary property but not a member.
  • Thus, a daughter, as a coparcener, can now demand the partition of her father’s property/business/house.

Muslim Law

Quranic laws of inheritance are extraordinarily specific. As per Muslim Law, daughters have right to maintenance and shelter in their parent’s house till they get married. Under Muslim law, both Sunni and Shia, a daughter is entitled to succeed to the property of the parents, yet there are customs and statutes, the operation of which excludes a daughter from inheritance. Such customs and statutes are treated as valid and daughters as non-existent at the time of opening of the succession.

Christian Law

According to Christian Law, a daughter inherits equally irrespective of the fact whether she has siblings or not. She also has the complete right to the personal property upon attaining majority.

PARTITION OF HINDU UNDIVIDED FAMILY PROPERTY

partition of property in hindu undivided family

The Hindu Law defines a Hindu Undivided Family (HUF) as a family which consists of male lineage decedents from a common ancestor and also includes their wives and unmarried daughters. HUF is also a separate legal entity under the Income and Wealth Tax Act and is liable to pay tax. It is common knowledge that the affair of the HUF is managed by the Karta. Hindu Law is comprised of two schools of law, Dayabhaga and Mitakshra school. Dayabhaga is applied in West Bengal and Assam and Mitakshra are applied in rest of India.

Partition means ending the status of Joint Hindu Family. Under Hindu Law when the Joint Family status comes to an end there is division of property among members and joint ownership of property comes to an end. Partition of the HUF property can be of two types under the Hindu Law i.e. total and partial. In total partition, all the member of the HUF ceases to be members of the HUF and the whole property ceases to be the HUF property. In partial partnership, the willing members of the HUF opt out of the partnership and the rest of the people continue to be members of HUF. Partial partition can be property specific too where the property is divided between members and the rest of the property continues to HUF property.

To start partition proceedings all that is necessary is a clear indication by a member of the HUF to separate himself from the family. Such declaration should be known to the members of the HUF who would be affected by the decision. Partition of the property will only take place when all the members of the HUF agree to the terms of the partition.

Partition of HUF can be done through family settlement or through partition deed. Stamp duty is not required for family settlement and thus is not required to be registered, whereas partition deed attracts stamp duty and must be registered. Due to huge expenses that come along with partition, family settlement is preferred.  Things to keep in mind while perusing with the option of family settlement is that the partition should be voluntary and should be without any force, threat, coercion or fraud. It should be fair and equitable settlement and though it is unstamped and unregistered it is binding on every member.