Huf karta
MANOJ NAYYAR
(Querist) 13 April 2012
This query is : Resolved
A is senior citizen male, formed a HUF in 2009-2010 with his son B as a coparcener. Other members are A's wife, B's wife and minor son & daughter of B. A has 2 daughters married before 1990 and one of them died in 1995. The HUF has been constituted or came in force in state of Punjab in 2011. There are tax savings deposits in the HUF as assets with a tenure of 5 - 10 years. My questions are :
1) Does son & daughter of B ( who are minor ) are coparcener in the HUF or are they members ?
2) Do the two daughters of A also become coparceners in the HUF constituted in 2009-2010 though they were married much before 1990 ? Question is in view of successions acts amendments of 1994 & 2005.
3) Since A is very old ( abt 80 ), in the unfortunate event of anything happening to A, what will be required for B to take over as karta of this HUF ? A simple declaration by B's mother and B will suffice or signatures of live sister mandatory ? What about the deceased sister ?
Thanks in advnace.
Anirudh
(Expert) 13 April 2012
Dear Mr. Manoj,
The answers to your query are:
1. The question does not arise, for the simple reason even according to your facts, the HUF was formed with these members.
2. Since the HUF came into being after the marriage of daughters of "A", they are obviously not members of the HUF and are therefore not entitled to any share. The Amendment Acts quoted by you have no application.
3. If "A" dies, then the partition will take place automatically in view of Sec. 6 of the Hindu Succession Act. The coparceners will get their respective shares. The share that falls to the share of the "A" will go by way of inheritance in case he has not left any WILL. If he leaves a WILL, then his share will go according to the tenor of the WILL. In case of such inheritance, the daughters of "A" will get their equal share.
3.1 - B can continue his HUF with the shares that he receives from the disturbed HUF.
3.2 - As already stated, the sisters (i.e. daughters of "A" who were married prior to the coming into being of the HUF) have no role to play.
J K Agrawal
(Expert) 13 April 2012
Manoj Ji and Anirudh ji
A is senior citizen male, formed a HUF in 2009-2010...
How a HUF is formed? I do not know. HUF never can be formed. It is an automatic process. One is to do nothing to form HUF. each father and his sons ( and now daugherts) consists HUF. All the HUF consisting 4 degree of male (now female daughters also) members constitute Co-parcenery. It is not a like partnership where you can join any body you like and expel any body you do not.
Entire question and entire problem is out of wits.
Please let me know how HUF is formed. I want to learn more about HUF.
prabhakar singh
(Expert) 14 April 2012
Mr.J K Agrawal is right in his remark that HUF and coparcenary are creation of law.
Then the query should be that capital and asset for HUF was created by getting it registered as HUF with Income Tax and filing returns of its' income and getting the same taxed accordingly.It helps in saving taxes.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 14 April 2012
HUF is a legal fiction for benefit of HINDUS only based on ancient system and now the backing of law.
It has two benefit one is a separate IT assessment unit and two management of property transfer.
AGRAWAL SAHEB you are absolutely right that it can not be created BUT if the provisions are fully known it can be used for above two benefits.
So existance and continuation of an HUF and even multiple HUFs in a family set up can be used for above benefits.
It is an operation of facts and law and proper expert guidance at local level should be taken.
MANOJ NAYYAR
(Querist) 14 April 2012
Dear Mr.J.K.Aggarwal, Mr.Prabhakar & Mr.JSDN,
While you have differed with Mr.Anirudh, you have not replies the query as per your understanding. Kindly do so.
What we meant by saying "HUF came into being existence" is that a savings bank a/c was opened and a business was set and subsequently PAN was applied and ITR was filled. Before this HUF existed only in notion. The bank asked for coparceners and members and their signature, hence the constitution was defined on a stamp paper duly notorized and a copy was submitted to the bank along side other relevant documents.
Now my question stands to be replied :
1) Do the two daughters ( one predeceased )of A also become coparceners in the HUF constituted in 2009-2010 though they were married much before 1990 ? Question is in view of successions acts amendments of 1994 & 2005 and
2) Does the daughters have equal rights as son B and A wife ? Will their be only four shares therefore, in the unfortunate event of death of A or will the constituted document prevail ?
Shonee Kapoor
(Expert) 14 April 2012
1. No
2. As of now only four shares as the HUF came into existance based on these members only.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Anirudh
(Expert) 21 April 2012
@ Mr. J.K.Agrawal,
Yes, agreed that A Hindu Joint Family is a creature of law. It is also agreed that a Hindu Joint Family cannot be created by act of the members or by an agreement between parties.
There is a presumption of jointness of the family. BUT THERE IS NO PRESUMPTION THAT a joint hindu family possesses JOINT PROPERTY or any property at all.
A coparcenary is an institution within a joint family. A Joint Hindu Family is a bigger institution and includes coparcenary within it. There can be a Joint Hindu Family without a coparcenary. BUT THERE CAN NEVER BE A COPARCENARY without a Joint Hindu Family.
Therefore, just because there is a Joint Hindu Family (which is a creature of law) does not ifso facto means that there is a COPARCENARY also.
If there is a Hindu Joint Family - without any property in the beginning. Thereafter the father acquires some properties in his name through his own earnings, the said property will remain his self-acquired private property and will not form part of the HUF Property, and his son will have no right or claim over the said property, just because the son happens to be a member of the Joint Hindu Family. [The position would be completely different - in case right from the beginning the Joint Hindu Family had some ancestral property with it - in which case there is not only a Joint Hindu Family, but also there is a Coparcenary. In such a situation and only in such a situation, a son (now even a daughter) taking birth in the family will automatically acquire a right in the property by sheer birth in the family.] IF the Joint Hindu Family is not having a co-parcenary to start with, then unless by conscious effort the father or some other male member in the family, who has self-acquired property throws into a common-hotch-potch and creates a HUF, the HUF cannot come into being. This is called forming HUF PROPERTY - Not forming HUF (joint Hindu family).
I think this clarifies the position.
Feel free to ask, in case you have any further queries.
@Manoj Nayyar: Your query stands completely answered by me in my first post itself. Therefore, there is no further need to answer the repeat query.
