1) Yes it can be get transfer on grandmother alone if HUF is continued after grandfather's death.

2) Its come under HUF.

3) Yes they have share in tbe property.

4) It will treated as Individual property.

5) Yes, it will Sumitra as per the Will.

Please below details for HUF.

1) Hindu Undivided Family (HUF) is a legal expression which has been employed in taxation laws as a separate taxable entity. It is the same thing as “Joint Hindu Family”. It has not been defined under the Income Tax Act, as it has a well defined connotation under Hindu Law.

2) A Hindu Undivided Family (HUF) is a separate entity for taxation under the provisions of sec. 2(31) of the Income Tax Act, 1961. This is in addition to an individual as a separate taxable entity , it means that the same person can be assessed in two different capacities viz. as an individual and as Karta of his HUF.

3) JOINT FAMILY PROPERTY :

The following types of properties are generally accepted as joint family property:

(i) Ancestral property;

(ii) Property allotted on partition;

(iii) Property acquired with the aid of joint family property;

(iv) Separate property of a co-parcener blended with or thrown into a common family hotchpot. The provisions of sec. 64 (2) of the Income Tax Act, 1961 have superseded the principles of Hindu Law, in a case where a co-parcener impresses his property with the character of joint family property.

4) RIGHT OF MEMBERS :

HUF is not a natural body. It does not have physical existence as such. It is composed of members. Those members are classified in two categories, viz (i) Coparceners, and (ii) Non-Coparceners.

Coparcener means a member who has a right to demand partition. Non-Coparcener means a member who doesn’t have a right to demand partition. AS per Current scenario RIGHT TO DEMAND PARTITION is vested in male member and daughter only.

Every Co-parcener is Member, but every Member is not Co-parcener. Rights of Members are-

Provision

Coparcener NON-Coparcener

Before Partition of HUF

Right of Maintenance Right to demand partition

Right of Maintenance On partition of HUF Right to receive equal share

Right to receive reasonable assets

However, (i) Wife of KARTA or (ii) Widowed mother has right to receive share equal to one Co-parcener

5) 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”.

`Partition need not be by Metes & bountes, if separate enjoyment can, otherwise the secured and such division is effective so as to bind the members. Cherandas Waridas, 39 ITR 202 (SC).

However, the members of an HUF can live separately and such an act would not automatically amount to partition of the HUF. Shiv Narain Choudhary v. CWT 108 ITR 104 (All.)

A finding of partition by the assessing officer u/s. 171 of the Income Tax Act, 1961 is necessary.

If the family is still HUF it can get transferred to Sumitra by grandfather. Regarding.second query the status of property is still HUF since it is not partitioned and it was thrown into common stock by your grand father. If bhavani had left HUF and there's any agreement in that regard his children has no right on other hand if.there's no agreement or settlement deed then his.children can claim share on property. Yes if flat is individual ownwership if will states it.shall be owned by Sumitra then it becomes her property . Regarding fourth question better go through recitals of sale deed when your grandfather purchased your property if there's any recital which states it was bought for in the interest of HUF then you people can have right in property. The intention of buyer matters.

if flat was self acquired property of madan saxena on his demise flat would devolve on his wife Sumitra absolutely

2) a co-parcener can blend his self-acquired property with that of HUF by throwing his individual or self-acquired property into family hotchpot or by impressing such property with the character of HUF property.

3)your grand father could not have made will for the whole HUF property .

4)your father income tax returns would reflect whether flat is HUF property or not

5)bahavani children have no right on the property

Hello Sir,

The response was not at all irrelevant I had provided in details all point wise HUF, Rights of Members and Partition of HUF. Explained in the details with Income Tax laws and citation cases as well.

1) Please check that Mr.Bhavani's name had removed from Income Tax filing as well at the time of filing returns.

2) Check grandfathers last Income Tax returns filed the flat under HUF assets as property. then it will appear in HUF otherwise not it will get transferred on grand mothers name.

3) Bhavani's Children does not have any share in the flat, as already their father had got his share in the way of separation from HUF property.

4) Check Madan Saxena's last Income Tax filing in that its mentioned as HUF property, than the Flat is HUF property.

5) Yes, if it were individual will to on his wife's name and this extra answer if he the property is in the HUF name than also a HUF can gift any immovable property within reasonable limits, can be made by Karta to his wife, daughter, daughter-in-law or even to a son out of natural love and affection.

Dear Client,

As the law is accepted and well settled that a Mitakshara father has complete powers of disposition over his self-acquired property.

Next Issue is HUF shall be devolve by equal proportion in it`s members i.e. 1/3 each.

Contradictory views available -

Even if it is disputed that the WILL is invalid still the cause is barred by Limitation and cannot be agitated/assailed at present.

1. Can the flat get transferred from HUF property to an individual (Sumitra) by my grandfather alone? -- As i said, contradictory views - need more time to advise precisely on this.

2. What is the current ownership of the flat? Is it still in the HUF or is it individually owned by Sumitra=2/3, and Sanam=1/3? --- At present, it`s personal property by testamentary succession of Sumitra.

3. Do Bhavani's children (1 son and 1 daughter) have any right to the property? (note that Bhavani had left the HUF) --- NO.

4. My grandfather's Will states that the flat belonged to "Madan Saxena HUF", however, the share certificate for the flat has the name "Madan Saxena" only and doesn't say the word "HUF". How do we verify whether the flat was individual ownership or HUF? --- House Tax receipt, Bill - Telephone, Electricity, Bank Account.

4.a. If the flat was individual ownership, does the flat become 100% owned because of Sumitra by Madan Saxena's Will? - Yes.

If it remained as HUF property then the remaining HUF members have to relinquish their rights in favor of the grandfather upon dissolution of HUF and then the grandfather can bequeath the entire property in favor of the person he chooses.

It can be treated as 2/3 to Sumitra (i.e., her 1/3rd share and 1/3rd share by way of will); the grandfather can bequeath 1/3rd share in the property to Sumitra.

If the said Bavani has already taken away his share from the HUF property, then there is no question of any any claim by his children or legal heirs in the HUF property.

You can verify the registered sale deed of the flat tht whether it was registered on individual's name or in the name of HUF.

If Madan Saxena has clear and marketable title to the property then the property bequeathed through the said will shall be valid and enforceable in law.

1. The property was bought by Late Madan Saxena from his self earnings which he had registered in favour of the HUF of which he was the Karta.. He has no right to will the HUF property to be bequeathed to his wife after his demise without winding up the HUF.

2. The flat is still in the name of the HUF and can be equally partitioned by the living members of the said HUF.

3. Since Bhavan went out of the HUF, his children will have no right on the said HUF property.

4. The most important point is the ownership of the property. If it stands recorded in the name of Madan Saxena at the Registrar's office then it is not a HUF property but personal property and in that case, he has the right to will it in favour of his wife who will be its absolute owner after probate of the will is obtained by her.

5. Yes, if the property stands in the name of Madan Saxena then as per his will the property will be owned by his wife.