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Distinction between HUF and individual property

A joint family property cannot be the subject matter of Will except to the extent of testator’s share on deemed partition on the date of his death. A Will should ordinarily be in respect of self-acquired property. If a Will is made of entire joint family property, such a Will may well not be valid.

Before the Hindu Succession Act came into force with effect from June 1956, whatever is received by succession or by a Will from the parent was treated as ancestral property in the hands of the sons. In fact, even salary and professional income arising out of education met from the funds of Hindu joint family were treated as joint family property prior to Hindu Gains of Learning Act, 1930. It is now treated as individual income.

As a result of the Hindu Succession Act, individual property would have the same character in the hands of the legal heirs, whether by Will or by intestate succession, if the death of the holder occurred on or after June 1956.

A Hindu Undivided Family (HUF) would continue as joint family even after the Hindu Succession Act, but female heirs of deceased coparceners will have a right over their father’s share on the basis of deemed partition. Under the Hindu Succession Act, such part will no longer continue as that of Hindu Undivided Family, when parted with, but the remaining part will continue in the same family, unless complete partition is effected.

The right of the female heirs has undergone changes by State enactments and now by the Hindu Succession (Amendment) Act, 2005, with effect from September 5, 2005, giving rights to the daughters equal to sons, but even in such a case till partition takes place, HUF will deem to continue. But on settlement of rights of daughters, the male coparceners alone can continue in joint family. Daughters will take their share as their individual property.

As for the query, as to how joint family can originate, the joint effort of the members of a Hindu joint family in running a common business or activity may lead to the inference of a Hindu joint family. Joint family may be created or its property augmented by individual property thrown into common hotchpot. Any gift or a Will may also create or augment the property of joint family, if the donor or testator, as the case may be, expresses clearly that the donee/ beneficiary will not have absolute right over the property but will receive the same as joint family property as the karta of such joint family.

A daughter, who is now conferred property rights in a joint family equal to that of the son can exercise her right to ask for a partition and get her share. She gets her share even if partition is occasioned by other members.

S. RAJARATNAM

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