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can father divide the property between children
16-Aug-2023 (In Property Law)
Can father make partition with 14 yrs unmarried sons? Can father make partition of married & unmarried sons & daughters? Is there any HC / SC judgement?
Son has no legal right in parents’ house, can stay at their mercy: HC
A view of the Delhi High Court.
A son cannot claim a right to live in the self-acquired house of his parents and can do so only at their mercy. Merely because the parents have allowed him to live in the house when their relations were cordial does not mean they have to bear his burden throughout life, the Delhi High Court has said.
Where the house is self-acquired, the son whether married or unmarried, has no legal right to live there, said Justice Pratibha Rani.
The Hindu Undivided Family (HUF) is a special feature of Hindu society. Hindu Undivided Family is defined as consisting of a common ancestor and all his lineal male descendants together with their wives and daughters. Therefore a Hindu Undivided Family consists of males and females. Daughters born in the family are coparcener and women married into the family are equally members of the undivided family. On the other hand at any given point of time a coparcenary is limited to only members in the four degrees of the common male ancestor and daughter
BASIC REQUIREMENTS FOR THE EXISTENCE OF AN HUF ARE AS FOLLOWS :
(i) Only one co-parcener or member cannot form an HUF
Family is a group of people related by blood or marriage. A single person, male or female, does not constitute a family.
The Hon’ble Supereme Court held in C. Krishna Prashad V/s CIT (1974) 97 ITR 493 (SC) that the word “Family” always signifies a group. Plurality of persons is an essential attribute of a Family. A Single person, male or female, doesn’t constitute a family.
However the property held by a single co-parcener does not lose its character of Joint Family property solely for the reason that there is no other male or female member at a particular point of time. Once the co-parcener marries, an HUF comes into existence as he alongwith his wife constitutes a Joint Hindu Family as held in the case of Prem Kumar v. CIT , 121 ITR 347 (All.)
(ii) Joint Family continues even in the hands of females after the death of sole male member :
Even after the death of the sole male member so long as the original property of the Joint Family remains in the hands of the widows of the members of the family and the same is not divided amongst them; the Joint Hindu Family continues to exist. CIT v. Veerapa Chettiar, 76 ITR 467(SC)
(iii) An HUF need not consist of two male members- even one male member is enough :
The plea that there must be at least two male members to form an HUF as a taxable entity, has no force. – Gauli Buddanna v. CIT, 60 ITR 347 (SC); C. Krishna Prasad v. CIT 97 ITR 493 (SC) and Surjit Lal Chhabda v. CIT, 101 ITR 776 (SC)
A father and his unmarried daughters can also form an HUF, CIT v. Harshavadan Mangladas, 194 ITR 136 (Guj.)
Further on partition of an HUF a family consisting of a co-parcener and female members is to be assessed in the status of an HUF
PARTITION OF HUF :
“Partition” Means a process of separation of assets/ members. Partitions can be of two types’ viz. (1) total partition, and (2) partial partition. In total partition, all members get separated and all assets are divided. In partial partition, some of the members get separation, or some of assets are separated.
The rights/entitlements of the members on partition of HUF are governed by Hindu Law. The tax laws do not have any otherwise provision.
Although the partition must be fair, yet the law does not require that the partition must be equal. The Hon’ble Supreme court in the case of N.S. Getti Chettiar (1971) 82 ITR 599 (SC) held that an unequal partition is also possible and it is very common in the country.
Member may accept a smaller/larger share on partition or he may renounce his right fully. But Income Tax Department has no right to avoid partition on the ground of inequality. M.S.M. Meyappa Chettiar V/s CIT 18 ITR 586 (Madras)
Section 171 of the Income Tax Act, 1961 deals with assessment of an HUF, after partition. Clauses (a) of the explanation to sec.171 defines “Partition” of an HUF. Where the property admits of a physical division, then a physical division of the property thereof, but, where the property does not admit of a physical division then such division as the property admits of, will be deemed to be a “partition”.
Until the Hindu Succession Act, 1956, was amended in 2005, the property rights of sons and daughters were different. While sons had complete right over their father’s property, daughters enjoyed this right only until they got married. After marriage, a daughter was supposed to become part of her husband’s family.
Under the Hindu law, a Hindu Undivided Family (HUF) is a group comprising more than one person, all lineal descendants from a common ancestor. An HUF can be formed by people of Hindu, Jain, Sikh or Buddhist faith
Delhi High Court
Sachin & Anr vs Jhabbu Lal & Anr on 24 November, 2016
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 24th November,2016
+ RSA 136/2016 & CM No.19123/2016
SACHIN & ANR ..... Appellants
Through: Appellant No.1 in person
versus
JHABBU LAL & ANR ..... Respondents
Through: Mr.Rakesh Kumar, Advocate with
respondents in person
PRATIBHA RANI, J. (Oral)
1. The appellant No.1, who is present in person, requests for an adjournment on the ground that he wants to change his counsel. The appellants are enjoying an ex-parte interim stay granted in their favour on 20th May, 2016 against their dispossession from the suit property.
2. On 29th August, 2016 the appellants requested for a date on the ground that the counsel was suffering from fever. This Court passed the following order:-
"1. Only for the reason that counsel for the appellants is said to be down with fever, therefore, this case is adjourned, otherwise prima facie I find no merits in the appeal where appellants/defendants who are son and daughter-in-law of the respondents/plaintiffs have been evicted from the suit premises.
2. List on 7th September, 2016."
3. On 7th September, 2016 after hearing respondent No.2, mother of the appellant No.1, with the consent of the parties, appellant No.1 Sachin was directed to pay ` 3500/- per month to the respondents/parents with effect from September, 2016. Appellant No.1 Sachin undertook to comply with this obligation. He also agreed not to stop his elder brother Sanjay (Defendant No.1) from using the second floor of the property. Matter was also referred to the mediation. Mediation report dated 17 th October, 2016 received with the report that it was 'Non-Starter'.
4. Today appellant No.1 Sachin was asked as to whether he has complied with the order dated 7th September, 2016 by making payment to his parents, he simply stated that he has no money to pay and sought time to change his counsel. The appellant No.1 was again asked whether he is ready to comply with the directions dated 7 th September, 2016 as in that case he can be given time to make the payment to his parents. The appellant No.1 has refused to make any payment to his parents.
5. When the mediation failed on 17th October, 2016, if the appellants intended to change their counsel, nothing prevented them from doing so. The appellants cannot be permitted to abuse the process of law by seeking adjournment on one pretext or the others especially when they are enjoying ad-interim stay against their dispossession from this Court.
6. Heard.
7. The Regular Second Appeal No.136/2016 under Section 100 of the Code of Civil Procedure, 1908 impugns the concurrent judgment of the Court below i.e. of the trial Court dated 16 th March, 2015 and of the First Appellate Court dated 13th January, 2016 whereby Civil Suit No.49/14 filed on 11th February, 2014 by the parents of the appellants (respondent Nos.1 & 2 herein) against their two sons and their wives seeking decree of permanent and mandatory injunction has been decreed.
8. The suit was filed by respondent No.1, Sh.Jhabbu Lal and respondent No.2, Smt.Raj Devi pleading that they are senior citizens residing on ground floor in House No.RZ-H-81, Gali No.4, Nihal Vihar, Nangloi, Delhi-110041 and construction on the said plot has been raised upto second floor. Their elder son Sanjay along with his wife Mamta was permitted to live on the second floor whereas the younger son Sachin along with his wife Neetu was permitted to live on the first floor of the said property out of love and affection for their sons. The parents of the appellant No.1 claimed themselves to be owner of the suit property which was self acquired. It was further pleaded by the parents of the appellants that their sons as well their wives made the life hell for them so much so that they were not even paying the electricity bills. The old parents were constrained to make various complaints to the police and also issued public notice on 5th January, 2007 and 17th May, 2012 disowning their sons and debarring them from their self acquired property. It was also pleaded that said property was purchased by them by selling their earlier property being RZ-H-215A, Nihal Vihar, Laxmi Park, Nangloi, Delhi-110041. Since the behaviour of the two sons and their wives became unbearable, they filed a suit seeking a decree of mandatory injunction directing them to vacate the floors in their possession and also to restrain them from creating any third party interest in the said property.
9. Two separate written statements were filed by the Sanjay and his wife (Defendant Nos.1 & 2) and Sachin and his wife Neetu (Defendant Nos.3 and
4) denying the claims of the plaintiffs to be the exclusive owner of the suit property or that it was their self acquired property. They claimed to be co- owner having contributed towards purchase as well as towards costs of construction for the said property.
10. Perusal of the LCR shows that on 9th September, 2014 following issues were framed:-
1. Whether the plaintiff is entitled to be relief of mandatory and permanent injunction as prayed? OPP
2. Whether the plaintiff is not the exclusive owner of the suit property and the defendant are the co-owners? OPD
3. Relief.
11. Both the plaintiffs filed their examination-in-chief by way of affidavit in support of the averments made in the plaint. However, all the four defendants failed to appear at that stage thus their right to cross-examine PW-1 & PW-2 was closed by the Court. Even at the stage of defence evidence none of the defendants led any evidence to prove that plaintiffs were not the exclusive owner of the suit property or that they were the co- owners. Believing the unrebutted testimony of the plaintiffs which was supported by necessary documentary evidence, learned trial Court decreed the suit interalia on the following grounds:-
(i) The documents i.e. GPA, agreement to sell, receipt and Will being in favour of the plaintiff No.1 (Father of defendant Nos.1 & 3) though do not make him absolute owner but he has a better title as compared to the defendants.
(ii) It has not been denied by the defendants that the property stands in the name of the plaintiff No.1 Sh. Jhabbu Lal and have not claimed any ownership right of their own distinguished from the plaintiffs. No evidence has been led to prove that they are the co-owners having contributed their share towards the purchase of the said property.
(iii) The testimony of the plaintiffs that defendants were licensees and their license has been revoked stands unrebutted.
(iv) Suit for mandatory injunction being filed within a reasonable time i.e. within six months period after termination of the license, separate suit for possession is not mandatory. Decree for mandatory and permanent injunction was accordingly passed in respect of the suit property.
12. The first appeal bearing RCA No.63/15 was filed only by defendant Nos.3 and 4 i.e. younger son Sachin and his wife Neetu. Before the First Appellate Court the grievance was more towards the learned Presiding Officer than on merits.
13. The appeal was dismissed observing that it was a case of gross- negligence on the part of the appellants/defendant Nos.3 & 4 in defending the case. It was further held that in the absence of any evidence being led by the appellants and the testimony of the respondents/plaintiffs having remained unchallenged, the impugned order was not suffering from any illegality. Hence the appeal was dismissed.
14. The appellant No.1 is the younger son of the respondent No.1/plaintiff No.1 Jhabbu Lal who has led detailed evidence both oral and documentary duly corroborated by testimony of his wife, respondent No.2/plaintiff No.2 Smt. Raj Devi to prove their case. The respondent Nos.1 and 2/plaintiffs may not have proved themselves to the owner of the suit property as may be established in a case of acquiring title under a registered sale deed but surely they would have better rights/entitlement to seek possession of the suit property from his sons who were permitted to live on the first floor only out of love and affection towards them.
15. Where the house is self acquired house of the parents, son whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout his life.
16. In my opinion in a case such as the present one where the appellants/defendant Nos.3 & 4 have led no evidence to prove that it waived self acquired or co-ownership in the suit property whereas respondents/plaintiffs No.1 & 2 have proved their case on the basis of documentary evidence i.e. copies of General Power of Attorney, Agreement to Sell, Receipt possession letter Affidavit etc., the learned trial Court was justified in decreeing the suit which was upheld by the First Appellate Court.
17. In view of the above no substantial question of law arises for this Court to exercise its power under Section 100 of the Code of Civil Procedure. Therefore, the appeal is dismissed leaving the parties to bear their own costs.
PRATIBHA RANI, J.
NOVEMBER 24, 2016 'pg'
A view of the Delhi High Court.
A son cannot claim a right to live in the self-acquired house of his parents and can do so only at their mercy. Merely because the parents have allowed him to live in the house when their relations were cordial does not mean they have to bear his burden throughout life, the Delhi High Court has said.
Where the house is self-acquired, the son whether married or unmarried, has no legal right to live there, said Justice Pratibha Rani.
The Hindu Undivided Family (HUF) is a special feature of Hindu society. Hindu Undivided Family is defined as consisting of a common ancestor and all his lineal male descendants together with their wives and daughters. Therefore a Hindu Undivided Family consists of males and females. Daughters born in the family are coparcener and women married into the family are equally members of the undivided family. On the other hand at any given point of time a coparcenary is limited to only members in the four degrees of the common male ancestor and daughter
BASIC REQUIREMENTS FOR THE EXISTENCE OF AN HUF ARE AS FOLLOWS :
(i) Only one co-parcener or member cannot form an HUF
Family is a group of people related by blood or marriage. A single person, male or female, does not constitute a family.
The Hon’ble Supereme Court held in C. Krishna Prashad V/s CIT (1974) 97 ITR 493 (SC) that the word “Family” always signifies a group. Plurality of persons is an essential attribute of a Family. A Single person, male or female, doesn’t constitute a family.
However the property held by a single co-parcener does not lose its character of Joint Family property solely for the reason that there is no other male or female member at a particular point of time. Once the co-parcener marries, an HUF comes into existence as he alongwith his wife constitutes a Joint Hindu Family as held in the case of Prem Kumar v. CIT , 121 ITR 347 (All.)
(ii) Joint Family continues even in the hands of females after the death of sole male member :
Even after the death of the sole male member so long as the original property of the Joint Family remains in the hands of the widows of the members of the family and the same is not divided amongst them; the Joint Hindu Family continues to exist. CIT v. Veerapa Chettiar, 76 ITR 467(SC)
(iii) An HUF need not consist of two male members- even one male member is enough :
The plea that there must be at least two male members to form an HUF as a taxable entity, has no force. – Gauli Buddanna v. CIT, 60 ITR 347 (SC); C. Krishna Prasad v. CIT 97 ITR 493 (SC) and Surjit Lal Chhabda v. CIT, 101 ITR 776 (SC)
A father and his unmarried daughters can also form an HUF, CIT v. Harshavadan Mangladas, 194 ITR 136 (Guj.)
Further on partition of an HUF a family consisting of a co-parcener and female members is to be assessed in the status of an HUF
PARTITION OF HUF :
“Partition” Means a process of separation of assets/ members. Partitions can be of two types’ viz. (1) total partition, and (2) partial partition. In total partition, all members get separated and all assets are divided. In partial partition, some of the members get separation, or some of assets are separated.
The rights/entitlements of the members on partition of HUF are governed by Hindu Law. The tax laws do not have any otherwise provision.
Although the partition must be fair, yet the law does not require that the partition must be equal. The Hon’ble Supreme court in the case of N.S. Getti Chettiar (1971) 82 ITR 599 (SC) held that an unequal partition is also possible and it is very common in the country.
Member may accept a smaller/larger share on partition or he may renounce his right fully. But Income Tax Department has no right to avoid partition on the ground of inequality. M.S.M. Meyappa Chettiar V/s CIT 18 ITR 586 (Madras)
Section 171 of the Income Tax Act, 1961 deals with assessment of an HUF, after partition. Clauses (a) of the explanation to sec.171 defines “Partition” of an HUF. Where the property admits of a physical division, then a physical division of the property thereof, but, where the property does not admit of a physical division then such division as the property admits of, will be deemed to be a “partition”.
Until the Hindu Succession Act, 1956, was amended in 2005, the property rights of sons and daughters were different. While sons had complete right over their father’s property, daughters enjoyed this right only until they got married. After marriage, a daughter was supposed to become part of her husband’s family.
Under the Hindu law, a Hindu Undivided Family (HUF) is a group comprising more than one person, all lineal descendants from a common ancestor. An HUF can be formed by people of Hindu, Jain, Sikh or Buddhist faith
Delhi High Court
Sachin & Anr vs Jhabbu Lal & Anr on 24 November, 2016
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 24th November,2016
+ RSA 136/2016 & CM No.19123/2016
SACHIN & ANR ..... Appellants
Through: Appellant No.1 in person
versus
JHABBU LAL & ANR ..... Respondents
Through: Mr.Rakesh Kumar, Advocate with
respondents in person
PRATIBHA RANI, J. (Oral)
1. The appellant No.1, who is present in person, requests for an adjournment on the ground that he wants to change his counsel. The appellants are enjoying an ex-parte interim stay granted in their favour on 20th May, 2016 against their dispossession from the suit property.
2. On 29th August, 2016 the appellants requested for a date on the ground that the counsel was suffering from fever. This Court passed the following order:-
"1. Only for the reason that counsel for the appellants is said to be down with fever, therefore, this case is adjourned, otherwise prima facie I find no merits in the appeal where appellants/defendants who are son and daughter-in-law of the respondents/plaintiffs have been evicted from the suit premises.
2. List on 7th September, 2016."
3. On 7th September, 2016 after hearing respondent No.2, mother of the appellant No.1, with the consent of the parties, appellant No.1 Sachin was directed to pay ` 3500/- per month to the respondents/parents with effect from September, 2016. Appellant No.1 Sachin undertook to comply with this obligation. He also agreed not to stop his elder brother Sanjay (Defendant No.1) from using the second floor of the property. Matter was also referred to the mediation. Mediation report dated 17 th October, 2016 received with the report that it was 'Non-Starter'.
4. Today appellant No.1 Sachin was asked as to whether he has complied with the order dated 7th September, 2016 by making payment to his parents, he simply stated that he has no money to pay and sought time to change his counsel. The appellant No.1 was again asked whether he is ready to comply with the directions dated 7 th September, 2016 as in that case he can be given time to make the payment to his parents. The appellant No.1 has refused to make any payment to his parents.
5. When the mediation failed on 17th October, 2016, if the appellants intended to change their counsel, nothing prevented them from doing so. The appellants cannot be permitted to abuse the process of law by seeking adjournment on one pretext or the others especially when they are enjoying ad-interim stay against their dispossession from this Court.
6. Heard.
7. The Regular Second Appeal No.136/2016 under Section 100 of the Code of Civil Procedure, 1908 impugns the concurrent judgment of the Court below i.e. of the trial Court dated 16 th March, 2015 and of the First Appellate Court dated 13th January, 2016 whereby Civil Suit No.49/14 filed on 11th February, 2014 by the parents of the appellants (respondent Nos.1 & 2 herein) against their two sons and their wives seeking decree of permanent and mandatory injunction has been decreed.
8. The suit was filed by respondent No.1, Sh.Jhabbu Lal and respondent No.2, Smt.Raj Devi pleading that they are senior citizens residing on ground floor in House No.RZ-H-81, Gali No.4, Nihal Vihar, Nangloi, Delhi-110041 and construction on the said plot has been raised upto second floor. Their elder son Sanjay along with his wife Mamta was permitted to live on the second floor whereas the younger son Sachin along with his wife Neetu was permitted to live on the first floor of the said property out of love and affection for their sons. The parents of the appellant No.1 claimed themselves to be owner of the suit property which was self acquired. It was further pleaded by the parents of the appellants that their sons as well their wives made the life hell for them so much so that they were not even paying the electricity bills. The old parents were constrained to make various complaints to the police and also issued public notice on 5th January, 2007 and 17th May, 2012 disowning their sons and debarring them from their self acquired property. It was also pleaded that said property was purchased by them by selling their earlier property being RZ-H-215A, Nihal Vihar, Laxmi Park, Nangloi, Delhi-110041. Since the behaviour of the two sons and their wives became unbearable, they filed a suit seeking a decree of mandatory injunction directing them to vacate the floors in their possession and also to restrain them from creating any third party interest in the said property.
9. Two separate written statements were filed by the Sanjay and his wife (Defendant Nos.1 & 2) and Sachin and his wife Neetu (Defendant Nos.3 and
4) denying the claims of the plaintiffs to be the exclusive owner of the suit property or that it was their self acquired property. They claimed to be co- owner having contributed towards purchase as well as towards costs of construction for the said property.
10. Perusal of the LCR shows that on 9th September, 2014 following issues were framed:-
1. Whether the plaintiff is entitled to be relief of mandatory and permanent injunction as prayed? OPP
2. Whether the plaintiff is not the exclusive owner of the suit property and the defendant are the co-owners? OPD
3. Relief.
11. Both the plaintiffs filed their examination-in-chief by way of affidavit in support of the averments made in the plaint. However, all the four defendants failed to appear at that stage thus their right to cross-examine PW-1 & PW-2 was closed by the Court. Even at the stage of defence evidence none of the defendants led any evidence to prove that plaintiffs were not the exclusive owner of the suit property or that they were the co- owners. Believing the unrebutted testimony of the plaintiffs which was supported by necessary documentary evidence, learned trial Court decreed the suit interalia on the following grounds:-
(i) The documents i.e. GPA, agreement to sell, receipt and Will being in favour of the plaintiff No.1 (Father of defendant Nos.1 & 3) though do not make him absolute owner but he has a better title as compared to the defendants.
(ii) It has not been denied by the defendants that the property stands in the name of the plaintiff No.1 Sh. Jhabbu Lal and have not claimed any ownership right of their own distinguished from the plaintiffs. No evidence has been led to prove that they are the co-owners having contributed their share towards the purchase of the said property.
(iii) The testimony of the plaintiffs that defendants were licensees and their license has been revoked stands unrebutted.
(iv) Suit for mandatory injunction being filed within a reasonable time i.e. within six months period after termination of the license, separate suit for possession is not mandatory. Decree for mandatory and permanent injunction was accordingly passed in respect of the suit property.
12. The first appeal bearing RCA No.63/15 was filed only by defendant Nos.3 and 4 i.e. younger son Sachin and his wife Neetu. Before the First Appellate Court the grievance was more towards the learned Presiding Officer than on merits.
13. The appeal was dismissed observing that it was a case of gross- negligence on the part of the appellants/defendant Nos.3 & 4 in defending the case. It was further held that in the absence of any evidence being led by the appellants and the testimony of the respondents/plaintiffs having remained unchallenged, the impugned order was not suffering from any illegality. Hence the appeal was dismissed.
14. The appellant No.1 is the younger son of the respondent No.1/plaintiff No.1 Jhabbu Lal who has led detailed evidence both oral and documentary duly corroborated by testimony of his wife, respondent No.2/plaintiff No.2 Smt. Raj Devi to prove their case. The respondent Nos.1 and 2/plaintiffs may not have proved themselves to the owner of the suit property as may be established in a case of acquiring title under a registered sale deed but surely they would have better rights/entitlement to seek possession of the suit property from his sons who were permitted to live on the first floor only out of love and affection towards them.
15. Where the house is self acquired house of the parents, son whether married or unmarried, has no legal right to live in that house and he can live in that house only at the mercy of his parents upto the time the parents allow. Merely because the parents have allowed him to live in the house so long as his relations with the parents were cordial, does not mean that the parents have to bear his burden throughout his life.
16. In my opinion in a case such as the present one where the appellants/defendant Nos.3 & 4 have led no evidence to prove that it waived self acquired or co-ownership in the suit property whereas respondents/plaintiffs No.1 & 2 have proved their case on the basis of documentary evidence i.e. copies of General Power of Attorney, Agreement to Sell, Receipt possession letter Affidavit etc., the learned trial Court was justified in decreeing the suit which was upheld by the First Appellate Court.
17. In view of the above no substantial question of law arises for this Court to exercise its power under Section 100 of the Code of Civil Procedure. Therefore, the appeal is dismissed leaving the parties to bear their own costs.
PRATIBHA RANI, J.
NOVEMBER 24, 2016 'pg'
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Adv. Satyajit Surendrasinh Powar
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Yes if the property is acquired by the father through his own earnings and out of his income then he can partition his property as per his choice among his successor / son/ daughter whether minor or major. The father can bequeath his self acquired property by his choice but not the property succeed from his forefathers. For citation please avail personal consultation.
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