Property Matters

Property Matters

Mangalore Today News Network

By V Mohan Rao
March 27, 2013: There are various types of acquisition of property by a Joint Hindu Family. A property can be self acquired; it can also be acquired through partition, gift and inheritance. As per the Hindu law a Joint Hindu family is normally referred as Hindu Undivided Family (HUF). The Hindu law is governed by two schools of thought viz. Mithakshara and Dayabhaga. As far as Joint Hindu family is concerned Mithakshara law is prevalent and practiced throughout India except in West Bengal and in some parts of Eastern India. Mithakshara law has led to the formation of the Joint Hindu family whose members acquire interest in the family property by birth. In Dayabhaga law the family property is acquired by survivorship.

The Hindu Joint families are slowly getting phased out as they have become obsolete. As the Hindu Succession Act 1956 did not confer full rights to female members of a Joint family for acquiring the family property, several amendments have been made to the Act by various states in the South and in Maharashtra. The amendment in Karnataka is effective from 30-07 -1994. The amendment granted equal property rights to female members of Co-parcenary property.

 
In a joint Hindu family there is a common male ancestor known in legal terms as Karta. The Joint Hindu family also has lineal male descendants including wife, wives, unmarried -daughters of male descendants and also widows. Hence a joint Hindu family comprises of smaller families but there will be only one common male ancestor.

The salient features of a Co-parcenary which distinguishes itself from a joint Hindu family is that a Co-parcenary is constituted by father and three lineal descendants Viz. children, grand children and great grand children. A joint family is constituted by any number of generations. In the Co-parcenary, lineal descendants acquire interest in the family property by virtue of their birth. Hence the property owned by a joint -Hindu -family is a co-parcenary property. It is pertinent to note that properties that have been inherited from father, grandfather and great grandfather constitute Co-parcenary property. However property inherited from maternal grandfather does not constitute co-parcenary property.

The inherited property (ancestral property) may be shared among legal heirs by even partition. The jointly acquired property by members of a Co-parcenary generally remains as joint family property unless the devolution of the property is explicitly indicated in the document. Acquiring a property by way of gift is legally recognized. In the case of a joint family if the property is acquired by gift, the gifted property becomes a separate property of the donee and will not form a part of the joint Hindu property. "In a major judgement, Supreme Court has ruled that a father can gift a reasonable portion of his ancestral immovable property to his daughters at the time of their marriage- or even long after their marriage". A Co-parcenary who is a member of the joint Hindu family can acquire property out of his own self earned income (which is a separate property) and the said property purchased does not constitute a part of the Hindu joint family property. Apropos funds of the joint family other than co-parceners other members do not have any right over Co-parcenary property. It is pertinent to note that members of a joint Hindu family do not have any right over co-parcenary property. However, they have right of maintenance. In the event of death of a Co-parcenar the survivors become members of the Co-parcenary. So far as the rights of the Co-parceners are concerned Section 6 of the Hindu Succession Act has been amended. In terms of the amendment, the legal heirs Viz. sons and daughters have equal share in the property. In this regard the Central Act has been amended accordingly. Every Co-parcenary has a right to seek partition of the joint Hindu property for claiming his share of the property.

Income arising from joint family property constitutes income of the joint family property. Any property purchased from the income of the joint family will be the property of the joint family. In case a joint family property is exchanged for acquisition of another property then the property so acquired will be a joint family property.

Partition of joint Hindu undivided family (Ancestral Property)
It is normal to mention in the partition deed all details and accurate description of the joint properties that are to be partitioned with value thereof. In case there is any map or plan of different allotment that is annexed to the partition deed, it is necessary to mention the same in the deed. The value of each allotment should be mentioned to facilitate calculation of stamp duty. In the event of the allotments not being in accordance with the respective shares provisions, then provision is required to be made in the deed for payment of owelty  money by the person who receives an allotment of greater value to the person who has received an allotment of lesser value. Further it is imperative to mention in the deed definite date of payment of the sum with or without interest.

Partition of the joint family property can be partial or in full. The partition can be effected by a deed of family settlement. A family arrangement can be binding if it is voluntary and not induced by fraud, coercion or undue influence. Written family arrangements for disposal of property to co parceners are of two types.
a. Instruments incorporating the terms of the family arrangement
b. Instruments created by way of memorandum after the family arrangement has been made for future use.

Registration of Family arrangement under section 17(1) b of Registration Act
Family settlement deed needs to be registered failing which it cannot be used as a document of title; however it can be used for collateral purpose.

If one of the co-owner fails or omits to execute the deed, then it will not have any effect, despite others having executed the deed for an effective partition, the deed should be executed by all the co-owners.

In a family arrangement whereby each member of the family is entitled to and takes his /her share of the family property, even if it is a disputed property, the partition may be effected orally. Such a transaction does not  confer  a transfer of interest in immovable property  but is an admission of a pre-existing title or a previously asserted right.  If the family arrangement is effected in writing, or is in the form of a document  evidencing transaction it needs to be registered. However if the deed is only a memorandum of a family arrangement it need not be stamped or registered. The Supreme Court held that family arrangement involving partition may be made orally, and does not by law require  to be in writing. However, if the parties choose to reduce the transaction in writing in the form of a document it requires registration.

A partition is not a transfer of property, hence a party to an agreement for partition is not eligible to invoke the provisions of section 53 of transfer of Property Act. An instrument of partition is valid and effective only if it is executed by all the co sharers. If any of the co-sharers is left out, such deed is not effective in law even against those who executed the deed of partition.

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V. Mohan Rao is Retd. Deputy Chief Manager of Bank of India, Advocate

 

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