Introduction
The Hindu Undivided Family or HUF could be a business form recognized only in India. Partition of a HUF leads to dividing or splitting up the HUF in order that the property is divided into shares of the individual coparceners (i.e. members within the family entitled to a share) rather than being held jointly by the complete family. HUF has been and still to an outsized extent continues to be a validly recognised kind of holding ancestral property, assets, common funds, businesses, and other kinds of property in an exceedingly common pool by the family. Partition whether partial or complete materially changes the character and character of a HUF. This appears to be a straightforward, straight-forward concept within the abstract sense. However, it can get rather messy and chaotic within the globe.
Very simply, during this article, we are going to first study what’s a HUF, then what’s ‘partition’, what are the laws applicable to the partition of HUF, and what are the methods by which a partition is finished in order thatit’s recognised as a legitimate partition.
What is a Hindu Undivided Family or HUF?
Religion
At the outset, it’s important to notice that a HUF because the name indicates is restricted to only Hindus, Buddhists, Jains, and Sikhs. Other communities i.e. Christians, Muslims, Parsis, Jews may board a joint family but this is often not recognised under Indian law and hence not entitled to any of the advantages available to a HUF.
Family and coparceners
The joint family consists of the top i.e. the Karta, all lineal descendants of the family – male descendants, female descendants (since the 2005 amendment to the Hindu Succession Act) who are the coparceners and other relatives. The eldest male of the family is mostly recognized because the Karta(head). All members of the family entitled to a share within the assets or ancestral property of the family are recognized as coparceners. Every coparcener is entitled to an equal share of the HUF property or assets. Only a coparcener incorporates a right to demand a partition of this property. Hence, so as to validate a partition of a HUF, the consent of all coparceners is required. However, a coparcener who may be a murderer and converts are disqualified from their inheritance within the joint family property.
Property
A HUF would normally hold the subsequent sorts of property:
• Ancestral property (property inherited by a Hindu from his father, father’s father, or father’s fathers’ father, is ancestral property.);
• additionally to the common pool of property made by the individual members;
• Property purchased from the proceeds of the sale of joint family property;
• Property acquired by the family through a will or by way of a present.
The Hindu Undivided Family
India may be a pluralistic nation; one which has managed to encompass multitudes of faith, language and ethnicity. Hence, it’s not surprising to comprehend that private laws play a significant part in governing our virtues. The concept of equality is that the principal tenet of the constitution, and its drafting befell after careful consideration of the religious laws.
The right to property has always been a debatable one. It ceased to be a fundamental right and went on to become a constitutional right, by way of the 44th amendment. Nevertheless, numerous religious laws enshrine their importance, because it is an inherent right of any person. Among all religious laws handling property rights, the laws of the Hindu Undivided Family (HUF) appear to be contentious. A basic understanding of this family structure is required to know its provisions.
The Hindu Undivided Family
The HUF may be a family structure that’s prevalent within the Indian subcontinent. A HUF cannot acquire existence through a contract. It automatically comes into being during a Hindu family. It consists of a Karta, who is that the eldest male member of the family. The Karta manages the overall affairs of the family. The descendants of the Karta are called the coparceners. Often, the principal requirement for commencing a HUF is that the existence of ancestral property.
The coparceners, by way of their rights, are entitled to a share of this property. A HUF is sometimes involved in any style of business and has an income disposable thereto. Hence, under section 2(31) of the revenue enhancement Act of 1961, the HUF is taken into account to be a person. it’s taxed as a separate entity also. The Karta must obtain a Permanent Account Number (PAN) and a checking account within the name of the HUF. This way, the liabilities of the family comes down. The tax slab rates that apply to a personal taxation assessee, also bind a HUF.
Various shastric laws have contributed to the characteristics of the Hindu Undivided family. it’s closely associated with the provisions of the Hindu Succession Act (1956) and therefore the Hindu Marriage Act (1955).
Different schools under the HUF
The declassification of the HUF yields two different schools.
• Dayabhaga
He acquires it after the death of his father. The shares and responsibilities of every coparcener are well defined. The said property needs to be divided physically, just in case of a partition. However, an adult son cannot support or oppose any disposition of the property, as he doesn’t exercise any control over it. the daddy has undeniable power over the property until his death. HUFs in Assam and Bengal follow this method.
• Mitakshara
All parts of India except Assam and Bengal follows this technique. Coparcenary rights are awarded to the son by birth. He has the proper to demand the partition of the property as he has equal rights on that as his father. He has the proper to oppose any unauthorized disposition of the said property. However, there’s no physical separation of the property during a partition. The coparceners of the HUF are allowed to ownan exact numerical share of the property. There are four classifications under the Mitakshara school.
They are as follows:
• Dravidian school – prevalent in south India
• Maharashtra/ Bombay school – exists in Bombay
• Banaras school- Followed in Orissa and Bihar
• Mithila school – Exists in province and neighbouring areas
Comparative analysis of the colleges
Though both these systems have flaws, the Dayabhaga school is more likely to prevail during this era. The Mitakshara system is orthodox and doesn’t provide room for flexibility. Women’s rights are well established and guarded under the Dayabhaga school, whereas the Mitakshara system curbs them. The Mitakshara system aims to conserve the joint family by keeping it close-knit. Though this practice will offer a way of support to the relations during hardship, there’san honest chance of a member turning parasitic. The concepts of communism and socialism are less preferred as compared to individualism. Hence, modern HUFs prefer Dayabhaga.
Recent status of a daughter’s coparcenary rights
Previously, coparcenary rights were awarded to the male descendants alone. But women got equal coparcenary rights by birth, after the 2005 amendment of the Hindu Succession Act. Daughters weren’t entitled to an independent share of the family property before this amendment.
However, the recent judgement[vii] of the supreme court overruling it’s 2015 decision has cleared the air about the daughters’ coparcenary rights. The ruling by a three-judge bench on the 11th of August 2020, provided a retrospective look on the Hindu Succession Act.
While the 2005 amendment granted equal rights to the daughters concerning the ancestral property, Section 6 of the Hindu Succession Act ran contrary to that. This section deals with the concept of devolution of interest within the coparcenary property of a HUF, governed by the Mitakshara school. Hence, the Supreme Court ruled that the daughters have equal rights as sons which it’s not necessary for the daddy to be alive when the amendment came into force.
Partition under the Hindu Undivided Family
Partition means dividing or splitting a Hindu Joint Family (HJF) or Hindu Undivided Family(HUF) and ending the lifetime of Coparceners of the actual family. Before the codification of the Hindu Succession Act, 1956, there have been 2 schools of Hindu Law which described the means and procedures of the partition of a HUF and their property.
• The Mitakshara School of Hindu Law:
This school of law springs from the Yajnavalkya Smriti which has been observed by all the states in India except Bengal and Assam. per this school of law, there are 2 conditions which can be considered as a partition of a Hindu Undivided Family Property:
• Severance of Status or Interest.Division of the property per the desired shares, simply called division of the property by meets and bounds.
• The Dayabhaga School of Hindu Law:
Followed in Bengal and Assam consistent with which partition means just the division of the property by metes and bounds. In both instances, 2 coparceners are required to try and do the partition.
The subject matter of the partition
The family property belonging to the Hindu Undivided Family is taken into account to be the topic of partition. An individuals property can’t be considered as an issue of partition. the subsequent are the methods through which adjustments are made among the coparceners (if there’s a conflict of interest) during the partition of a divisible property:
• The property are often enjoyed by the coparceners jointly or in-turns (according to the courts decision)
• If one in every of the coparceners wishes to stay the property, then the worth of it’d be divided into the opposite coparceners or,
• The property are going to be sold and therefore the proceeds would be distributed among the coparceners.
According to Section 2 of The Partition Act, 1893, just in case thanks to any conflict if the division of the property isn’t possible then it’d directly be sold and also the proceeds are given to the coparceners.
Liabilities attached to the property
Some liabilities would be attached to the property at the time of a partition or before[x].
There is a specific provision made before the property is divided.
They are as follows:
• Provision for debts which are taken by the daddy or the Karta of the family should be fulfilled.
• The those who aren’t considered to be coparceners but are titled to be maintained by the property should run their maintenance, these members are:
• Disqualified coparceners and their dependents (immediate)
• Mother, stepmother, grandmother and other females who are entitled to be maintained by the actual family.
• Unmarried sisters. And
• Widowed daughters of deceased coparceners.
• If there happens to be a situation where son and father or brother and brother are coparceners, then the unmarried daughter or sister must provide some provisions before the partition of the property.
• Provisions regarding the ceremonial expenses must be made before the partition.
Properties unable of partition
In the Smritis, it’s been stated by Vijnaneshwara, that water or a reservoir of it, can not be divided. Similarly, some properties can not be divided due to their nature. The views given by other Smritikars stated that a domicile shouldn’t be an issue of partition.
In Nirupama v. Baidyanath, with reference to the current the principle it absolutely was held that the control of the house are rested upon anyone or more coparceners and if not accepted the house are sold and also the value of the partition are going to be given to the coparceners in their value. This the choice was taken keeping one principle/rule in mind, i.e., to divide the a property without destroying its intrinsic value.
People entitled to the partition of shares
Partition of the property happens to divide the property amongst the coparceners by meets and bounds. in keeping with both the Mitakshara and Dayabhaga school the coparceners of the property are entitled to the shares of the property[xii].
The following persons are entitled to the shares:
• Father:
By the proper of the Patria Potestas a father can make partition amongst him and his sons, with the consent of the coparceners. He also can affect the partition amongst them and might put a partial partition. the daddy mustn’t be unfair during the partition of the property. A suit may be filed for re-opening the case if the coparceners find the choice of the daddy to be unjust (mala fide).
• Son, Grandson and Great Grandson:
According to Mitakshara, all three of them are considered to own an unqualified right within the partition.
• Son born after partition:
Vishnu and Yajnavalkya believed that a partition should be re-opened once a replacement child is born and its share should be allotted. In Indian law, a toddler (son) within the womb is taken into account as someone who could be a coparcener and was present within the time of partition. Manu stated: the after born son can only get his share in his fathers share.
• Adopted son:
The adopted son holds the identical rights of a natural son in claiming the partition of the property and may also raise an equal share. whether or not there’s an adoptive son and a natural son, both are having the identical right over the property as laid down by the Hindu Adoptions and Maintenance Act, 1956.
• Minor Coparcener:
There is no difference within the rights of the minor coparceners except one, i.e., a minor coparcener cannot demand the partition of the property from the daddy or the Karta. he’s entitled to the share within the partition which is equal by meets and bounds and he can re-open the claim given, through his guardian/ father or agent.
• Alienee:
When the coparcener of the property gives his role or transfers it as a consideration to another person and therefore the steps in because the coparcener then he’s entitled to own a share within the property as he’s there on behalf of the coparcener.
• Absent coparcener:
if a coparcener is absent during the time of partition his share must be kept aside and just in case of not doing therefore the coparcener has the facility to reopen and claim for his share from the partition.
Case law
Munni Lal Mahto and Ors. vs Chandeshwar Mahto and Anr.
Facts:
The joint Hindu family had a property disposable to them. Each member of the family (father, mother, five brothers and three of their children) was given 1/7th of the property, after the preliminary decree in the partition suit. Later, the father executed a registered gift deed for his share (1/7th of the property) in favour of four of his five sons (the fifth son had passed away). He died subsequently after the deed was registered. The mother did the same with her share and died later. During the preparation of the final decree, one of the brothers and his son contested the previous decision. They wanted everyone to receive 1/5th of the property and not 1/7th, as both their parents and their brother had passed away.
Issue:
• the validity of the gift deeds made by the parents
• The effect of severance of status on the partition of property and coparcenary rights
Judgement: Initially, the trial court held that a gift by a coparcener without the consent of the other coparceners is void. Hence, it ordered the preliminary decree to be amended and read as 1/5th of the property to each member. But this case was taken to the Supreme Court for appeal. The Supreme Court held that the gift deeds were valid and that the members would get their shares according to the gift deeds.
Analysis: It is an undeniable fact that the coparceners hold a right over the family property under the Hindu law. Hence, any gift made by a coparcener to another member of the family without the consent of other members will be void. As the interests of the coparceners in a joint family are undefinable, this provision is justified. However, after the joint family is severed, the coparcenary interests come to an end. The joint family was severed after the preliminary decree was passed.
Hence, coparcenary rights came to an end. After the severance of status of the joint family, members are free to gift their share, as they become common tenants of the property. The partition of the property after the preliminary decree amounted to the severance of status. The gift deeds were registered after the preliminary decree was passed. During this time, there were no coparcenary rights with any member of the family.
It is very clear from the above-mentioned case law that, the preliminary decree led to the partition of the family property. The status joint family stood disrupted after the decree was filed. The parents executed their respective gift deeds after the passing of the preliminary decree. They were well within their rights to do this as they were no longer coparceners. The severance of status was well-established. The gift deeds were valid and not void. Hence the final decree would read as per the wishes of the parents.
Conclusion
The Hindu Undivided Family is a unique business/family form in India. The partition of a HUF can be done without complications if it is clear to all concerned parties as to who is considered a part of the family, what are the rights of coparceners, what exactly are the property and assets of the family, and the Karta keeps all records updated and in order. Further, the legal process for partition in itself is not complicated and the authorities are very clear as to how a partition is to be recorded and recognised.
Reference
Online Sources:
•https://theprint.in/judiciary/daughters-equal-right-to-ancestral-property-heres-what-landmark-sc-judgment-says/479728/
•https://www.incometaxindia.gov.in/pages/i-am/huf.aspx
•https://www.lawyersclubindia.com/articles/partition-suit-principles-practices–10449.asp
Books:
• The Partition Act, 1893
• Indian Stamp Act,1899
• Indian Registration Act, 1908
• Civil Procedure Code, 1908
Secondary Sources:
• The Income Tax Act, 1961, Act 43, Acts of Parliament, 1961
• Anonymous, Hindu Undivided Family (HUF), Income Tax department
• The Hindu Succession Act, 1956, No. 30, Acts of Parliament, 1956
• The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955
• Anonymous, Different types of schools under Hindu law- A detailed discussion, LAWNN
• Subodh Asthana, Important Pointers about the Sources & Schools of Hindu law, iPleaders
• Samanwaya Rautray, Daughters have equal coparcenary rights in joint Hindu family property: Supreme Court, The Economic Times
• Sunil Dhawan, Supreme Court judgement on daughters rights to property- check full details, Financial Express
• The Partition Act, 1893, No.4, Acts of Parliament, 1893
• Monika, Partition under Hindu Law, iPleaders
• Sm. Nirupoma Basak And Ors. vs Baidyanath Pramanick, AIR 1985 Cal 406 (India)
• Mayank Shekhar, Partition of laws, Legal bites
• Hindu Adoptions and maintenance Act, 1956, No.78, Acts of Parliament, 1956
• Munni Lal Mahto And Ors. vs Chandeshwar Mahto And Anr., AIR 2007 Pat. 66 (India)
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