Divorce, Rights of minor grandson in ancestral property

 1. It is HCF property. BIL is Karta being one of the son of your FIL. In a HUF one son can become Karta. The rights in ancestral property are determined per stripes and not per capita. This means that the share of each generation is first determined and the successive generations in turn sub-divide what has been inherited by their respective predecessor.

2. As far as your husband’s HUF is concerned, you is a mere member of the family and not a co-parcener and as such you alone cannot demand partition of your husband’s HUF property. The share of the father (your husband's) at the time of his death, after notional partition would be 1/4th share in stated HCF property. So wait for his (husband's) partition to seek share for the minor. If the husband dies without leaving a Will, the succession shall be governed by S. 6 of the Hindu Succession Act, 1956 and the wife (widow) shall become absolute and individual owner of whole of the property of the HUF. S. 30 of the Hindu Succession Act, 1956 permits any Hindu to dispose of his interest in coparcenery property by Will or other testamentary disposition. He can bequeath by Will in favour of any person he likes. 

3. The rented old flat of BIL is not yet blended with bigger HUF whose members your husband and your BIL and your son are. Blending of individual property (BIL's new flat) with that of H.U.F. property or impressing an individually held property with the character of H.U.F. property can be done by a Declaration. BIL has not given any Declaration as per bare reading of your query. You have no rights to live in BIL's new or HUF's old flat. You have rights to live only where your husband lives.

I think I may have to respectfully disagree with TajobsIndia's opinion to this issue.    If it was ancestral property, the minor child's father is automatically entitled to a share in the said property out of which the minor child is also entitled to a share of property out of its father's share of property for the reason that it was  born out of legally valid marriage.  As a matter of fact, the father will be natural guardian to protect the minor child's interest in the property, if he fails to do so, the child's mother can file a suit claiming partition and separate possession of the minor's share in the property as the child's next friend, mother and guardian.  This is applicable even if it is coming under HUF as the child after birth has become a coparcener in the HUF property, the Kartha of HUF cannot deny or refuse to allot the minor with his legitimate share in the HUF property.  As a mother you can file a partition suit quoting the reason that the father is not taking care of the interest of the minor in the share of the  property belonging to the minor and that the other co-sharers are likely to alienate the property depriving the child's right and interest in the same. 

To your next query, since your husband is duty bond to maintain you and provide you accommodation, you donot have stay and toil in a rented accommodation.  You can very well go and stay in the house where he is residing because it is your matrimonial house, if they stop your entry or object, you can file a DV case against them claiming right to residence.

Consult a good lawyer in the local and proceed as per his further advise.

Hello Mr. Kalaiselvan,

 

Thanks for your response. I need more clarity as below:

 

 

1) What if the share in the building is taken in individual names and not as a HUF? 

 

 

2) About the issue of old ancestral flat which is given to one of our relative in exchange for a new flat. I am not sure my husband approved the deal in writing. As I said my husband was never involved in anything related to ancestral property bse my BIL always controlled it. The old flat is still under my brother-in-laws control and he doesnt live there, it is rented. He takes the rent. He  lives in the new flat. My husband lives with his parents in my FIL's self acquired flat. So please confirm if I can go and live in the old flat which is rented out?  

 

Thanks....Swati

Hello TAJOBSINDIA,

Point 1 - Thanks for the clarification

 

Point 2 - My query clearly states that my husband is not taking any responsibility at all of his own son.... so waiting till his death to claim my son's share doesnt make any sense ......b'se my husband can give up or squander his share. So definitely there should be some recourse for this issue. 

 

Point 3 - I am not asking if I can go and live in the new flat where my BIL is staying. I want to know if I can go and live in the old flat which is rented and still under control of my BIL b'se he keeps the rental income. This old flat is a ancestral property and I am not sure if my husband has approved the exchange deal for the new flat. So technically the new flat is also ancestral property even if my BIL stays there. I am assuming the new flat is in my BIL's name. My husband and his parents stay in my FIL's self acquired flat. 

 

Originally posted by : Tajobsindia
	1. It is HCF property. The rights in ancestral property are determined per stripes and not per capita. This means that the share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor. 2. The share of the father (your husband) at the time of his death, after notional partition would be 1/4th share in stated HCF property. So wait for his (husband's) death to seek share for his minor. 3. You have no rights to live in brother-in-laws flat. You have rights only where your husband lives.

I agree to Ld. Kalaiselvan’s reply on your query.  

To your subsequent questions to me, I stand by my previous reply. Reason being yours is a complex brief devour of other parties facts in toto, hence suggest to seek in Chamber consultation with local advocate meeting Consultation fees to gain regional legal remedy on your query. 

[Last reply]

Firstly I thank Mr. TajobsIndia for endorsing my opinion to the subject query.

Now to the author: Please avoid giving details on piece meal basis.  You were given proper advise based on your query i the beginning itself, now your are raising the query in the different form with differing information.  I endorse the views of learned Mr. TajobsIndia that for further detailed opinion on your issue, it is better you fix up an appointment with some local advocate, get all your queries clarified in person.

@ Swati,

Whjat is to be understood is what is an HUF. A property though is as ancestral property doesnt mean that it belongs to an HUF until and unless it is declared that the same is belonging to HUF.

You have stated that the property is ancestral and everything is controlled by brother-in-law. Now what my friends have stated is absolutely contrary to law that a person i.e. son can be a Karta of the family when father is alive.

I am answering your query in question answer form which would explain everything and your position as per law and your entitlement to share and interest in the property along with citations to that effect delivered by various courts.

HINDU UNDIVIDED FAMILY

Q-1. What is HUF?

Ans. : HUF includes those persons who acquired by birth an interest in joint family property.

Q-2. Dose HUF include the wives and daughters of the abovesaid persons?

Ans. : Yes. A family consists of all persons lineally descended from a common ancestor and include their wives and unmarried daughters.

Q-3. Does HUF arise from a contract?

Ans. : No HUF arises only from status.

Q-4. Who is a coparcener?

Ans. : The persons who acquire by birth and interest in joint family property. The test of Coparcener is that coparcener enjoys right to enforce partition.

Q-5. What are the schools of law under HUF.

Ans. : Daaya bhaga : It prevails only in west Bengal & Assam. Here a son acquires right in the family property not on his birth but on the death of his father.

Mitaaakshara : Under the school of law each son by birth acquires an equal interest with his father in the ancestral property. This law prevalent all over India.

Q-6. Can female members can enforce partition?

Ans. : Female members do not enjoy right to enforce partition, through they are entitled to maintenance out of the family property.

Q-7. What is ancestral property?

Ans. : It is the property, which a man inherits from any of his three immediate male ancestors , i.e., father , grand father and great grand father.

Q-8. Should there be two male members?

Ans. : There need not be necessarily more than one male member to form a HUF along with female members.

Q-9. Will a joint undivided family be assessed as HUF?

Ans. : Yes. CIT v. Smt. Champa Kumari Singhi(1972)83 ITR 293(SC).

Q-10. Is there HUF in Kerala??

Ans. : No.

Q-11 What is a smaller HUF?

Ans. : A son can have smaller HUF with his wife and children, while he continues to be a member of his father's HUF. In his father's HUF, he is mere a member, and his own, he is a karta.

Q-12. How does HUF concept deal with females?

Ans. : Women members are not treated as comparcener of HUF.

A daughter after her marriage has no right at all in assets of HUF. After the death of karta, if there is no male member, the wife of karta not becomes a karta. If a Karta dies, leaving behind his window and minor son, even then, wife is not permitted to become a karta.

Q-13. Can there be HUF with only female members?

Ans. : Yes. As so long as the property which was originally of the joint Hindu family remains in the hands of the windows of the member of the family and is not divided, HUF can continue with female members.

Q-14. When will HUF status be recognize under Income -Tax Act?

Ans. : There should be a coparcener. There should be a joint family property which consists of ancestral property, property acquired with the aid of ancestral property and property transferred by its members.

Q-15. What happens on the death of a sole male member?

Ans. : Even after death, so long as the property which was originally of HUF remains in the hands of widows and is not divided among them, the joint family continues.

Q-16. Can individual members be assessed in respect of HUF'S Income?

Ans. : So long as HUF exist, individual members can not be separately assessed in respect of HUF'S income. ITO v. Bachu Lal Kapoor (1966) 60 ITR 74 (SC).

Q-17. Can Karta gift HUF property?

Ans. : Gift by katra of HUF, a movable property or an immovable property within reasonable limits in favour of his daughter is permissible on the occasion of her marriage.

Q-18. Is oral partition among HUF permissible?

Ans. : Yes Hans Raj Agarwal (2003) 259 ITR 265/126 Taxman 603 (SC).

Q-19. Can the ITO enquire about details of partition?

Ans. : Yes it is his duty to know the exact portions of the division among the members and to hold an inquiry into the claim. Lakmichand Bajinath v. CIT (1959) 35 ITR 416 (SC).

Q-20. Should the partition be recorded by ITO?

Ans. : The partition is not valid and the HUF is assessable to the tax as such, unless the finding is recorded by the AO by an order under section 171 Addl CIT v. Maharani Raj Laxmi Devi (1997)224 ITR 582/91 Taxman 20 (SC).

Q-21. Assessees go certain property from HUF but has no son. What is the status?

Ans. : Where the assessees having life, but no child got certain property on partition of bigger HUF, it was held that assessee's claim for HUF status (smaller HUF) was valid. CIT Krishna kumar (1982) 10 Taxman 292 (MP).

Q-22. What happens when a single coparcener with no male issue acquire HUF property?

Ans. : The property will belong to him as his separate property and he could validly gift it to his wife and daughters. CIT v. Admiralty Flats Motel (1982) 133 ITR 895 (MAD)

23. What happens when karta is a partner in a partnership firm gets salary?

Ans. : Unless the remuneration has direct nexus with investment of funds of the family, it will be Treated as personal income of katra. Laxman Das v. CIT (1982) 138 ITR 628/(1983) 12 Taxman 58 (all).

Q-24. What happens when a member who is a partner in a firm gets a salary?

Ans. : It is his individual income. Unless it is the part of the return on investment of HUF. CIT v. Trilok Nath Mahrotra (1998) 98 Taxman 462 (SC).

Q-25. What happens when assesse's father settled his self-acquired property in favour of assessee with some condition?

Ans. : The property is assessable as individual property of assessee even though is subsequent partition of HUF such property is treated as HUF property. CIT v. CG. Venkatasubben (1999) 150 Taxman 352 (Mad)

Q-26 What happens when a single coparcener with no male issue acquire HUF property?Can a HUF pay salary to karta for looking after his affairs?

Ans. : Yes. Provided it is genuine and not excessive and under a valid bona fied agreement . Jugal Kishore Baleo v. CIT (1967) 63 ITR 238 (SC).

Q-27. Can a HUF pay salary to karta for looking after its interest in a firm?

Ans. : Yes, CIT v. Prakash chand Agarwal (1982) 11 Taxman 55 (MP)

Q-28. Who can claim share in partition?

Ans. : All coparceners. A son in the womb of his mother at the time of partition Mother. Wife.

Q-29. Will section 171 have application on a Hindu family not assessed as HUF so far?

Ans. : No. CIT v. Kantilal Ambalal (1991) 59 Taxman 232 (Guj)

Q-30. Can partial partition take place in HUF?

Ans. : Partial partition is not recognized under Income tax Act as per section 171(9)

Q-31. Can a HUF become a partner in a firm?

Ans. : No it can do so only through its katra. CIT v. Seth Govindram sugar Mills (1965) 57 ITR 510 (SC).

Q-32. Can a widow be a katra of joint family?

Ans. : As the widow is not coparcener, she has no legal qualification to become a katra. CIT v. Seth Govindram Sugar Mills (1965) 57 ITR 510 (SC)

Q-33. Can female member blend her property with that HUF?

Ans. : The right of blending is limited to coparcener. Pushpa Devi V. cit (1997) 109itr 730 (sc)

Q-34. X has obtained property on partition of HUF. He has daughter but no son. Can the property treated as HUF property?

Ans. : Yes. There is no requirement like that, in HUF, there must be at least two male members. N.V.Narendranath v. CWT (1969) 74 ITR 190 (SC).

Q-35. With the gift received from the joint family property can a member from his own HUF?

Ans. : No a gift cannot help in forming or creating a HUF. It may only provide the nucleus of the Properties to an already existing HUF, Which may not be having any joint Family property Or fund.

Q-36. Mr. C, an outsider, makes a gift to a HUF consisting of Mr. A and his wife B. Can A&B assessed as a HUF respect of C's gift?

Ans. : The HUF should have two or more coparceners to treat Mr. gift as HUF property. Hence In this case it is not possible as A is the only coparcener. (Section 400 of Mulla's Hindu Law)

Q-37. Mr. A is an assessee in the status of HUF. He has sons and daughters, can he do partition among sons?

Ans. : The father can effect only a total partition in respect o all the properties. He does not have Right to effect partial partition. CIT v. Seth Gopaldas (HUF) [1979] 116 ITR 577 (MP)

Q-38. Can a father do total partition without resorting to suit?

Ans. : Yes whereas any other coprcener can achieve this result only by a suit CIT v. Seth Gopaldas (HUF) [1979] 116 ITR 577 (MP)

Q-39. Can a female along with her son represent HUF As karta when father is also alive?

Ans. : Only a coparcener can be a manager. Any other senior male member can also manage the affairs. But if the father is incapable and son is minor. Mother may represent the family for Income Tax Assessment Sushiladevi rampuriya v. ITO [1960] 38 ITR 316 (cal.)

0. Mrs. X along with two daughter after her husband's death, wants to form a HUF. What are the views?

Ans. : Not possible. The concept of female forming a joint hindu family agreement appears to be Contrary to hindu law. CIT v. Smt. Sandhya Rani Dutta [2001] 115 Taxman 369 (SC)

Q-41. What is the position of the daughter after her marriage?

Ans. : The daughter on her marriage cases to be a member of her father's HUF and becomes a Member of her Husband's HUF.

Q-42. Can a adopter son become a coparcener

Ans. : No. birth of male only makes a coparcener. Adopter child can become member.

Q-43. Can HUF be created through will?

Ans. : Yes Surjitlal chhabara v. CIT [1967] 63 ITR 416 (SC)

Q-44. Does section 171 of I.T. Act apply to both schools of law?

Ans. : Yes it is applicable to Dayabhaga and Mitakshara school of hindu law. Joint family of Udayan Chinubhai v. CIT [1967] 63 ITR 416 (SC).

Q-45. How can properties not capable of physical division be partitioned?

Ans. : It can be done through Book intries K.G. Ramakrishnirer v. CIT [1963] 49 ITR 608 (Mad

Q-46. Can allotment of share to a person not entitled invalidate partition?

Ans. : No. CIT v. Govind Narain. [1975] 101 ITR 602 (all).

Q-47. When can a claim partition be made with ITO?

Ans. : It can made before the assessment. Rajmal Paharachand v. CIT [1950] 18 ITR 1 (Punj)

Q-48. A minor receives share on partition of HUF. What is your advice?

Ans. : Till Minority, the income will be clubbed eith his father's in Income is to be offered in his Individual assessment. After marriage, he can claim status of HUF with himself & wife. He becomes karta.

CIT v. Parshottamdas K. Panchal [2002] 257 ITR 96/[2003] 123 Taxman 563 (Guj.)

Q-49. Can a stranger gift a property to HUF?

Ans. : Yes. Provided there is clear declaration that the gift is for the Benefits of HUF. CIT v. Satyendra kumar [1998] 232 ITR 360 (SC).

Q-50. Mr. A karta dies in Air crash & compensation is received by sons. Is it HUF income?

 

Ans. : Insurance compensation is an individual asset and not that of HUF. The interest on this Deposit amount is not assessable in the hands of HUF but in the hands of sons. L Bansi Dhar & sons v. CIT [1980] 123 ITR 58/4 Taxman 176 (Delhi)

@ Swati,

 

As stated above, whatever rights you have are through your husband in the property. In the circumstance where you have stated that you are intending to go ahead for divorce your rights will get absolved by the same once you are divorced. Whatever rights shall remain will be that of your son in the properties if it is ancestral as you claimed. For the sake of making an entry in the house/flat where your husband is residing you have no recourse through Hindu Succession Act but through D V Act and in the said circumstance you will have to prove that you have been ousted from the premises and further more, you will have to initiate proceedings for restitution which if you chose to go ahead with.

Thanks Mr. Yogesh.....

 

 

Originally posted by : Yogesh V Nayyar
	@ Swati,   As stated above, whatever rights you have are through your husband in the property. In the circumstance where you have stated that you are intending to go ahead for divorce your rights will get absolved by the same once you are divorced. Whatever rights shall remain will be that of your son in the properties if it is ancestral as you claimed. For the sake of making an entry in the house/flat where your husband is residing you have no recourse through Hindu Succession Act but through D V Act and in the said circumstance you will have to prove that you have been ousted from the premises and further more, you will have to initiate proceedings for restitution which if you chose to go ahead with.

Hello Kalaiselvan Sir,

     My case is a little similar to the above and I have 2 queries.

1. I have been separated from my husband and he holds his grand fathers property in his father's name. I have a minor son. I need to file a suit for partition of this ancestral property since my husband does not take care of my son. I am earning a decent salary. I am looking out for documents of the ancestral property. I am not able to get the schedule or Tippani of the property. Please help how to get this. This is required to file for the suit.

2. Can I get alimony for my son as maintenance and for his education since my husband has not taken any responsibility in looking after him. I am earning a decent salary. He has some minimal earnings.

Thank you...

@Sandhya: you can file maintenance case u/s 125 cr.p.c. seeking maintenance for your minor son though you both are living separately due to difference of opinions.  As  far as the property and its share for your minor son, please ascertain if the property is of ancestral nature.  To procure the copy of the document, first find out the survey number from the municipal records(if the property situate within Municipal limits) or from village revenue records/tahsildar office, obtain an encumbrance certificate from which you will get the details of past and present title holders, apply for certified copy of the deed registered through registrar  office.

Thank you Kalaiselvan Sir for your response. Yes, they are ancestral property since it belonged to my son' s great grand-father. Somehow I am able to get Survey number of the property. Beyond that I am not able to proceed to get Survey sketch and sale deed. Please advise further. Also, my father in law has sold some of the property and purchased new ones. Will they be entitled for partition? Thanks....

Hello Mr. Kalaiselvan Sir,

 

Thanks for your response. Can you please let me know how to apply for Encumbrance certificate and Sale deed in the above case?

 

Thanks in advance....