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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