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Hindu Succession Act — A case study

Subject : Other Laws
Month-Year : Nov 2006
Author/s : P. N. Shah
Chartered Accountant
Topic : Hindu Succession Act — A case study
Article Details :

Hindu Succession (Amendment) Act, 2005, has amended the Hindu Succession Act, 1956 with effect from 9th September, 2005. The Amendment Act gives a daughter in the HUF (whether married or not) the same status as that of a son. Some issues which arise as a result of this amendment are considered in this case study.

1. Shri RMP (HUF) consists of 3 members.

(i) Shri RMP — Karta of HUF

(ii) Smt. SRP — Wife of Karta

(iii) Shri PRP — Son

2. The names of family members are as under :

RMP

Self

SRP

Wife — RMP

PRP

Son — RMP

SPP

Wife — PRP

MPP

Son — PRP

MMP

Wife — MPP

RMP

 Daughter — MPP

NSS

Daughter — PRP

RSS

Son — NSS

SAS

Daughter — RMP

BAS

Daughter — SAS

RDS

Daughter — RMP

CDS

Son — RDS

3. On the basis of the above facts, the following questions arise for consideration :

  • 3.1 Q.1 — Who are called co-parceners in RMP (HUF) ?

  • Comment :

    (a) Prior to the amendment of the Hindu Succession Act, 1956, on 9-9-2005, only male members and unmarried daughters (as well as daughters who married on or after 22-6-1994) were co-parceners of a HUF governed by Mitakshara Law in Maharashtra. The Hindu Succession Act, 1956 has now been amended w.e.f. 9-9-2005. The effect of this amendment is that all daughters (whether unmarried or married before or after 9-9-2005) and male members of the HUF are co-parceners of the HUF. Therefore, at present, the following persons are co-parceners of RMP (HUF) :

        — Shri RMP

        — Shri PRP

        — Smt. SAS

        — Smt. RDS

    Smt. SRP (wife of RMP) is only a member of the HUF and will get a share equal to each son/daughter. It may be noted that if any of the daughters dies before partition of RMP (HUF), the sons/daughters of the deceased daughter will get her share in view of the above amendment w.e.f. 9-9-2005.

  • 3.2 Q.2 — Does anyone from the above members (except PRP and RMP) has any right in the property of RMP (HUF) ?

  • Comment :

    All co-parceners stated in Q. No. 1 have equal share in RMP (HUF) property. Other persons mentioned in para 2 above have no right in the property of HUF. They are only members of the HUF and can claim only the right of residence and the right to education/maintenance from the property/income of the HUF. It may be noted that the sons and daughters of the two daughters of RMP will also be members of RMP (HUF) w.e.f. 9-9-2005. Further, Smt. SRP (wife of Karta) will get a share equal to a son/daughter if a partition of HUF takes place.

  • 3.3 Q.3 — Can RMP, as Karta of the HUF, gift all the moveable property and wealth, like shares in family firms, investment, amount in PPF, etc. only to PRP ? Can anyone of the members stated above raise any objection to such an act ?

  • Comment :

    RMP as Karta of the HUF has no right to make such a gift. He can only make reasonable amount of gift to co-parceners and members of the family for meeting their personal requirements or family needs.

  • 3.4 Q.4 — If RMP cannot gift the wealth to PRP then is there any way by which the wealth of the HUF can be given to PRP or anyone else ?

  • Comment :

    If the two daughters relinquish their respective interest in the HUF by a duly executed release deed, they will cease to be co-parceners of the HUF. Thereafter, complete partition of the HUF can be made wherein PRP can be given 90% and MRP and Smt. SRP can retain 5% share each in the HUF property. It may be noted that on such a partition, property coming to the share of PRP will become the property of his smaller HUF (PRP, MPP and NSS). If the daughters do not wish to relinquish their shares, it is possible to make unequal partition in which PRP can be given a major share (i.e., 80%) and RMP, SRP, SAS and RDS can each take 5% share each.

  • 3.5 Q.5 — Can RMP (HUF) be partitioned partially or fully to divide the assets between RMP and PRP ? Is any share required to be given to any other family member ?

  • Comment :

    RMP (HUF) will have to effect a complete partition. Partial partition is not accepted u/s.171(9) of the Income-tax Act. When the complete partition is made, the wife of RMP will get an equal share. As stated above, while making the complete partition, RMP, his wife and two daughters can accept lesser share and major share can be given to PRP (HUF).

  • 3.6 Q.6 — Would such divided assets, between RMP and PRP, belong to RMP and PRP in their individual capacity or the assets received by PRP belong to PRP (HUF), because the assets have been received on a partition of RMP (HUF) and therefore be treated as ancestral property ?

  • Comment :

    As stated above, when the complete partition is made, the share coming to RMP and SRP will be his/her individual property. As regards the daughters, the share coming to each of them will be their co-parcenery property. So far as PRP is concerned, his share will belong to his smaller HUF.

  • 3.7 Q.7 — PRP HUF has four co-parceners. Is this view correct ?

  • PRP

    Self & Karta of HUF

    SPP

    Wife — PRP

    MPP

    Son — PRP

    NSS

    Daughter — PRP

    Comment :

    PRP (HUF) has only three co-parcerners viz. PRP, MPP and NSS. Smt. SPP is only a member. But, she will get an equal share when partition between the three co-parceners takes place. It may be noted that the wife and children of MPP and the children of NSS are only members of the HUF entitled to right of residence and education/maintenance expenses from the HUF income/property.

  • 3.8 Q.8 — In RMP (HUF) what are the rights of the following persons ?

  • SRP

    Relationship to RMP

    Wife

    PRP

    Son

    SPP

    Daughter-in-law

    MPP

    Grandson

    MMP

    Wife-grandson

    RMP

    Great grand daughter

    NSS

    Grand daughter

    RSS

    Great grandson

    SAS

    Daughter

    RDS

    Daughter

    BAS

    Grand daughter

    CDS

    Grandson

    Comment :

    (a) As stated earlier, RMP, PRP, SAS and RDS are co-parceners of RMP (HUF). SRP has a right to get an equal share in the property on partition. Other persons in the above list are only members of the HUF. Even the sons/daughters of the two daughters are members of the HUF.

    (b) A ‘co-parcener’ has a right to share equally when partition of an HUF takes place. He/she has right to demand the partition of the HUF. A ‘member’ of the HUF has only the right of residence and the right to claim education and maintenance expenses. A ‘member’ has no share in the property and he/she cannot enforce partition of the HUF properties.

  • 3.9 Q.9 — If partition of RMP (HUF) had taken place before 9-9-2005, can the daughters of RMP make any claim ?

  • Comment :

    The Hindu Succession Act, 1956, as amended, gives right to married or unmarried daughters to get a share equal to the sons in HUF property of father. This amendment is made w.e.f. 9-9-2005. However, proviso to S. 6 states that this amendment will not affect or invalidate any partition of HUF which had taken place before 20-12-2004. Therefore, if a partition of RMP (HUF) has taken place before 20-12-2004, the daughters cannot raise any claim. If it has taken place between 20-12-2004 and 9-9-2005, the daughters can raise their claim. It may be noted that the Hindu Succession (Amendment) Bill was introduced in the Parliament on 20-12-2004. That appears to be the reason for insertion of the above proviso.

  • 3.10 Q.10 — SAS and RDS (Daughters of RMP) now get a share in the HUF of RMP. Does it mean that they have a share in the HUF of father and also share in the HUFs of their husbands ?

  • Comment :

    (a) The Hindu Succession (Amendment) Act has given co-parcenary interest to a daughter equal to that of the son. No distinction is made between a married daughter and an unmarried daughter. Under the Hindu Law, a married woman becomes a member of her husband’s HUF after her marriage. She is not a co-parcerer of her husband’s HUF. She has no right to demand partition of HUF of her husband. But she gets a share equal to that of the son when partition of this HUF takes place.

    (b) Therefore, SAS and RDS will be co-parceners of RMP HUF. At the same time, they will be members of their husbands’ HUFs also. In other words, each daughter will get equal share in her father’s HUF and equal share in her husband’s HUF when partition of the HUF takes place.

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