11 March 2010
The following will help you in deciding and understanding the Partition of HUF
Partition of HUFs:
A joint Hindu family springs from a common male ancestor and consists of his descendants in the male line, their spouses and unmarried daughters. Every male Hindu even when he is a member of joint Hindu family can and does constitute a joint family with his own descendants, a family which nevertheless is a part of the bigger family of which he is a member. Such a smaller family of the Hindu male who is himself a member of the bigger family constitutes a branch of the main family. Similarly sub-branches of the family can be formed by each of his male descendants. Each of these branches or sub-branches is in itself a HUF. Partition under the Income-Tax Act is the ascertainment of individual shares of coparceners in the HUF and a later division by allotting separate properties to the members. The partition is a mere agreement to divide the properties and, therefore, does not require registration unless the division is through a written instrument. If the partition is oral, however, a memorandum of partition should be recorded. The memorandum does not have to be registered. On a partition between the members of the joint family, the shares are to be allotted as under. * On a partition of a HUF, which includes the father, mother, and sons, the mother has no right to claim partition, but when the partition is actually effected she takes the share equal to the sons. * On a partition between a father and his sons where the mother is not living, each son takes a share equal to that of the father. * On a partition of a joint family consisting of brothers they take equal shares. * Each branch takes per stripe as regards every other branch, but members of each branch take per capita as regards each other. * None of the unmarried daughters has a right to share on partition but the partition should provide for their maintenance and education till their marriage and for their marriage expenses. In Maharashtra, Karnataka, Andhra Pradesh and Tamil Nadu, daughters are also entitled to a share equal to that of the son on partition of the HUF property. This is not applicable in Maharashtra where the daughter is married before June 22, 1994, in Karnataka, if the marriage of the daughter is before July 28, 1994, in Andhra Pradesh if the marriage of the daughter is before September 5, 1985, and in Tamil Nadu if the marriage of the daughter is before March 25, 1989.
Daughters as coparceners:
In recent times, some states like Maharashtra and Tamil Nadu have amended the Indian Succession Act to provide that all daughters who were unmarried as on the date of the amendment would be regarded as coparceners in much the same manner as the sons in the family. Subsequently, in these states, unmarried daughters as well as daughters married after the date of the amendment (in the case of Maharashtra, it was June 22, 1994) were regarded as coparceners. They are, therefore, eligible to demand partition of an HUF, and receive a share (equal to that of male coparceners) of the HUF property.
The Hindu Succession (Amendment) Act, 2005 (39 of 2005) comes into force from 9th September, 2005. The Government of India has issued notification to this effect. The Hindu Succession (Amendment) Act is to remove gender discriminatory provisions in the Hindu Succession Act, 1956 and gives the following rights to daughters under Section 6: • The daughter of a coparcener cell by birth become a coparcener in her own right in the same manner as the son; • The daughter has the same rights in the coparcenary property as she would have had if she had been a son; • The daughter shall be subject to the same liability in the said coparcenary property as that of a son; and any reference to a Hindu Mitakshara coparceners shall be deemed to include a reference to a daughter of a coparcener; • The daughter is allotted the same share as is allotted to a son; • The share of the pre-deceased son or a pre-deceased daughter shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; • The share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter. After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt. The I-T Act does not recognise a partial partition. An unequal partition is, however, possible. Since an unequal partition is permissible, it might be possible that one of the coparceners may renounce his coparcenary interest in the coparcenary property as an alternative to a partial partition which is not recognised. The renunciation is an unilateral act of the coparcener but has to be complete and genuine. The coparcener relinquishing can demand maintenance but cannot relinquish in favour of a particular individual member of the family. It is important to note in this context that unless an order is obtained from the Assessing Officer recognising partition, the income from property shall continue to be assessed as HUF income.
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