India is a pluralistic nation; one which has managed to encompass multitudes of religion, language and ethnicity. Hence, it is not surprising to realize that personal laws play a vital part in governing our virtues. The concept of equality is the principal tenet of the constitution, and its drafting took place 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, as it is an inherent right of any human being. Among all religious laws dealing with property rights, the laws of the Hindu Undivided Family (HUF) appear to be contentious. A basic understanding of this family structure is required to understand its provisions.

The Hindu Undivided Family

The HUF is a family structure that is prevalent in the Indian subcontinent. A HUF cannot come into existence through a contract. It automatically comes into being in a Hindu family. It consists of a Karta, who is the eldest male member of the family. The Karta manages the general affairs of the family. The descendants of the Karta are known as the coparceners. Often, the principal requirement for commencing a HUF is the existence of ancestral property.

The coparceners, by way of their rights, are entitled to a share of this property. A HUF is usually involved in any form of business and has an income disposable to it. Hence, under section 2(31) of the Income Tax Act[i] of 1961[ii], the HUF is considered to be a person. It is taxed as a separate entity as well. The Karta must obtain a Permanent Account Number (PAN) and a bank account in the name of the HUF. This way, the tax liability of the family comes down. The tax slab rates that apply to an individual income tax assessee, also bind a HUF.

Various shastric laws have contributed to the characteristics of the Hindu Undivided family. It is closely related to the provisions of the Hindu Succession Act (1956)[iii] and the Hindu Marriage Act (1955)[iv].

Different schools under the HUF

The declassification of the HUF yields two different schools, namely Dayabhaga and Mitakshara[v]. While the essence of a HUF remains rooted in these schools, there are minor differences.

1. Dayabhaga

   He acquires it after the death of his father. The shares and responsibilities of each coparcener are well defined. The said property has to be divided physically, in case of a partition. However, an adult son cannot support or oppose any disposition of the property, as he does not exercise any control over it. The father has undeniable power over the property until his death. HUFs in Assam and Bengal follow this system.
    

2. Mitakshara

   All parts of India except Assam and Bengal follows this system. Coparcenary rights are awarded to the son by birth. He has the right to demand the partition of the property as he has equal rights on it as his father. He has the right to oppose any unauthorized disposition of the said property. However, there is no physical separation of the property during a partition. The coparceners of the HUF are allowed to have a definite numerical share of the property. There are four classifications under the Mitakshara school.
   
   They are as follows:
   
   1. Dravidian school - prevalent in south India
   2. Maharashtra/ Bombay school - exists in Bombay
   3. Banaras school- Followed in Orissa and Bihar
   4. Mithila school - Exists in Uttar Pradesh and neighbouring areas

Comparative analysis of the schools

Though both these systems have flaws, the Dayabhaga school is more likely to prevail in this modern era[vi]. The Mitakshara system is orthodox and does not provide room for flexibility. Women's rights are well established and protected 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 sense of support to the family members during hard times, there is a good 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 were given equal coparcenary rights by birth, after the 2005 amendment of the Hindu Succession Act. Daughters were not 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[viii] ran contrary to it. This section deals with the concept of devolution of interest in the coparcenary property of a HUF, governed by the Mitakshara school. Hence, the Supreme Court ruled that the daughters have equal rights as sons and that it is not necessary for the father 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 life of Coparceners of the particular family. Before the codification of the Hindu Succession Act, 1956, there were 2 schools of Hindu Law which described the means and procedures of the partition of a HUF and their property.

1. The Mitakshara School of Hindu Law:

   This school of law is derived from the Yajnavalkya Smriti which has been observed by all the states in India except Bengal and Assam. According to this school of law, there are 2 conditions which will be considered as a partition of a Hindu Undivided Family Property:
   
   1. Severance of Status or Interest.
   2. Division of the property according to the specified shares, simply known as division of the property by meets and bounds.
       

2. The Dayabhaga School of Hindu Law:

   Followed in Bengal and Assam according to which partition means just the division of the property by metes and bounds. In both instances, 2 coparceners are required to do the partition.

The subject matter of the partition

The family property belonging to the Hindu Undivided Family is considered to be the subject of partition. An individual’s property cannot be considered as a subject of partition. The following are the methods through which adjustments are made among the coparceners (if there is a conflict of interest) during the partition of a divisible property:

1. The property can be enjoyed by the coparceners jointly or in-turns (according to the court’s decision)
2. If one of the coparceners wishes to keep the property, then the value of it would be divided into the other coparceners or,
3. The property will be sold and the proceeds would be distributed among the coparceners.

According to Section 2 of The Partition Act [ix], 1893, In case because of any conflict if the division of the property is not possible then it would directly be sold and the proceeds will be 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 certain provision made before the property can be divided.
They are as follows:

1. Provision for debts which have been taken by the father or the Karta of the family has to be fulfilled.
    
2. The people who are not considered to be coparceners but are titled to be maintained by the property should be given their maintenance, these members are:
   
   1. Disqualified coparceners and their dependents (immediate)
   2. Mother, stepmother, grandmother and other females who are entitled to be maintained by the particular family.
   3. Unmarried sisters. And
   4. Widowed daughters of deceased coparceners.
       
3. 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.
    
4. Provisions regarding the ceremonial expenses must be made before the partition.

Properties not capable of partition

In the Smritis, it has been stated by Vijnaneshwara, that water or a reservoir of it, cannot be divided. Similarly, some properties cannot be divided because of their nature. The views given by other Smritikars stated that a dwelling house should not be a subject of partition.

In Nirupama v. Baidyanath[xi], in regards to this the principle it was held that the control of the house will be rested upon anyone or more coparceners and if not accepted the house will be sold and the value of the partition will be given to the coparceners in their monetary value. This the decision 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. According to 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:

1. Father:
   By the right of the Patria Potestas a father can make partition amongst him and his sons, with the consent of the coparceners. He can also affect the partition amongst them and can put a partial partition. the father should not be unfair during the partition of the property. A suit can be filed for re-opening the case if the coparceners find the decision of the father to be unjust (mala fide).
    
2. Son, Grandson and Great Grandson:
   According to Mitakshara, all three of them are considered to have an unqualified right in the partition.
    
3. Son born after partition:
   Vishnu and Yajnavalkya believed that a partition should be re-opened once a new child is born and its share should be allotted. In Indian law, a child (son) in the womb is considered as a person who is a coparcener and was present in the time of partition. Manu stated: the after born son can only get his share in his father’s share.
    
4. Adopted son:
   The adopted son holds the same rights of a natural son in claiming the partition of the property and can also ask for an equal share. Even if there is an adoptive son and a natural son, both will be having the same right over the property as laid down by the Hindu Adoptions and Maintenance Act, 1956[xiii].
    
5. Minor Coparcener:
   There is no difference in the rights of the minor coparceners except one, i.e., a minor coparcener cannot demand the partition of the property from the father or the Karta. He is entitled to the share in the partition which is equal by meets and bounds and he can re-open the claim given, through his guardian/ father or next friend.
    
6. Alienee:
   When the coparcener of the property gives his role or transfers it as a consideration to some other person and the steps in as the coparcener then he is entitled to have a share in the property as he is there on behalf of the coparcener.
    
7. Absent coparcener:
   if a coparcener is absent during the time of partition his share must be kept aside and in case of not doing so the coparcener has the power to reopen and claim for his share from the partition.

Case law
Munni Lal Mahto and Ors. vs Chandeshwar Mahto and Anr.[xiv]
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:

1. the validity of the gift deeds made by the parents
2. 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.

End-Notes:

1. The Income Tax Act, 1961, Act 43, Acts of Parliament, 1961
2. Anonymous, Hindu Undivided Family (HUF), Income Tax department (APR.30, 2020), https://www.incometaxindia.gov.in/Pages/i-am/huf.aspx
3. The Hindu Succession Act, 1956, No. 30, Acts of Parliament, 1956
4. The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955
5. Anonymous, Different types of schools under Hindu law- A detailed discussion, LAWNN (Apr.10, 2016), https://www.lawnn.com/schools-under-hindu-law/
6. Subodh Asthana, Important Pointers about the Sources & Schools of Hindu law, iPleaders (Sept. 10,2019), https://blog.ipleaders.in/sources-schools-hindu-law/
7. Samanwaya Rautray, Daughters have equal coparcenary rights in joint Hindu family property: Supreme Court, The Economic Times (Aug.12, 2020, 07:25 AM), https://economictimes.indiatimes.com/news/politics-and-nation/daughters-have-equal-coparcenary-rights-in-joint-hindu-family-property-supreme-court/articleshow/77484056.cms
8. Sunil Dhawan, Supreme Court judgement on daughters’ rights to property- check full details, Financial Express (Aug. 13, 2020, 4:39pm), https://www.financialexpress.com/money/supreme-court-judgment-on-daughters-right-to-property-check-details/2053759/
9. The Partition Act, 1893, No.4, Acts of Parliament, 1893
10. Monika, Partition under Hindu Law, iPleaders (Apr. 12, 2019), https://blog.ipleaders.in/partition-under-hindu-law/
11. Sm. Nirupoma Basak And Ors. vs Baidyanath Pramanick, AIR 1985 Cal 406 (India)
12. Mayank Shekhar, Partition of laws, Legal bites (Jun. 1, 2017), https://www.legalbites.in/partition-hindu-law/
13. Hindu Adoptions and maintenance Act, 1956, No.78, Acts of Parliament, 1956
14. Munni Lal Mahto And Ors. vs Chandeshwar Mahto And Anr., AIR 2007 Pat. 66 (India)

Written By:

1. Keerthana.B &
2. Ajay Martin