• HUF partition claim

This is a JAIN FAMILY matter.

A male person (henceforth referred as M) received an HUF property via release deed from his father. This HUF property which is on rent and has monthly income from it. M is also the Karta of that property. He only have two sons (henceforth referred as B and C) and No daughter. B and C are married and have children (a boy and a girl respectively). M lost his wife (henceforth referred as F) in 2018. B and C asked for partition orally after the death of their mother F as they found out that M is spending the HUF money insensibly and for his personal use only (withdrawing cash and transfering money to his individual account).
M agreed to do the partition orally. All oral communication between M, B and C is recorded. Later, after asking for partition by B and C, M got remarried. Now my questions are

1. Do M have rights to withdraw cash from HUF account (more than 50k), are there any limitations?

2. Do M have rights to transfer money to his personal/individual account without consenting other members of HUF (F, B and C)

3. Does M's new wife get share in the partition as, I believe she is just a member of the HUF and not coparcenare. 

4. If yes for above question, Can the Sons B and C claim for partition without including M's new wife?

5. Does sending an email or registered letter addressing to M for partition of HUF considered as legal document in court, in case M says B and C never asked for partition. Or is it wise to send a legal notice?

6. If B and C have bank statements proving that M has spent most of the HUF earnings for his personal interest, can B and C claim for that spending as part of partition of HUF.

7. Is minor male, B's son, a coparcenare and claim for his share via B during partition.
Asked 2 years ago in Family Law
Religion: Other

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9 Answers

Although no individual coparcener, including the karta has any power to dispose of the joint family property without the consent of all others, the Dharma Shastra recognizes it. That in certain circumstances any member has the power to alienate the joint family property.

1. As the head of the family, karta’s powers of management are almost absolute. He may mange the property of the family, the family affairs, the business the way he likes, he may mismanage also, nobody can question his mismanagement. He is not liable for positive failures. He may discriminate between the members of the family. But he cannot deny maintenance /use/occupation of property to any coparcener. The ever-hanging sword of partition is a great check on his absolute powers.

2. The above answer suits this too.

3. No, she is not a coparcener, she is just the wife of the Karta "M".

4, Yes, B and C can claim partition on the exclusion of new wife of their father.

5. You can better send a legal notice by registered post.

6. The Karta can take shelter on the benefit of the joint family.

The karta of a joint family represents the family in all matters- legal, social, religious. He acts on behalf of the family and such acts are binding on the family. The joint family has no corporate existence; it acts in all matters through its karta. The karta can enter into any transaction on behalf of the family and that would be binding on the joint family.

7. The minor's claim can be from his father's share alone. 

T Kalaiselvan
Advocate, Vellore
84919 Answers
2195 Consultations

5.0 on 5.0

Property received by M is ancestral income generating property. M has two sons B & C. After death of mother B & C sought partition  of ancestral property. Accordingly there is oral partition. All communications in respect  of partition  among M, B & C is recorded. The fact remains that there is no official/registered partition among family members. Remarriage by B will not have any bearing on shares which of legal heirs which  is 1/3 for each in movable as well as immovable properties. As there is no formal partition, properties are still joint. In the background of property being joint following  are the answers.

  1. M can withdraw any amount being Karta of Joint family property.
  2. Answer to your second question is answered in first question. M has liberty to transfer money to his account, no consent is required from anyone.
  3. F will not affect shares of B & C. She will take from share of M.
  4. There are only 3 sharers M, B & C. F will claim out to M’s share.
  5. Any communication through email or in writing is declaration of intention for division of property. But it is safe to send a lawyer's notice.
  6. Past transactions cannot be question. Only from the date of receipt of notice intention to partition, all sharers become liable to each other.
  7. Any member minor or major can seek partition.

Advice: seek partition to prevent swindling of property by any legal heir.  

Ravi Shinde
Advocate, Hyderabad
4042 Answers
42 Consultations

5.0 on 5.0

If M is still a karta and there is no limitation decided in HUF then he can withdraw the same for welfare of HUF

No he can't do that without consent of coparrcener

If she becomes a coparcener then yes. 

 Yes they can claim but they need to include her

Yes it will be considered as legal document if received by him

Yes they can claim a refund with interest

Yes but with permission of court as he is a minor

Prashant Nayak
Advocate, Mumbai
31951 Answers
179 Consultations

4.1 on 5.0

1) M does not have right to transfer money to his individual account without consent t of others 

 

2) step mother is not a co parcener 

 

3) sons can claim partition 

 

4) sending email or letter by registered post is sufficient to claim partition 

 

5) not necessary to send legal notice 

 

6) B son is co parcener and can claim for partition 

Ajay Sethi
Advocate, Mumbai
94718 Answers
7530 Consultations

5.0 on 5.0

1. Unless a mandate was given to the bank not to allow M to withdraw monies above a certain limit, there cannot be any legal restrictions on M's withdrawal.

2. No, M cannot transfer funds from the HUF account to his own; it amount to 'conversion'.

3. If she is legally married to M, yes.

4. No, she also is entitled to a share.

5. E-mail communication is a good evidence. In any case, you have to send M a legal notice first.

6. Yes, very well. M should be held accountable for 'conversion'.

7. Yes, the minor too can claim his share.

Swaminathan Neelakantan
Advocate, Coimbatore
2797 Answers
20 Consultations

4.9 on 5.0

1. No

2. Consent required in normal circumstances

3. Equal share between members 

4. It is very complex to. Yes they can cliaim

5. Yes

Prashant Nayak
Advocate, Mumbai
31951 Answers
179 Consultations

4.1 on 5.0

The main part of Section 6 of the Hindu succession Act normally recognises an reiterates the rule of survivorship in respect of devolution of interest by survivorship upon the death of a coparcener in favour of surviving members of the coparcenary. Even under the proviso when there are no female or other heirs of the class specified therein, the rule as to survivorship has to prevail but if the deceased coparcener dies leaving him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of such deceased coparcener in the mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be under the Act and not by survivorship.

 

2)in case of partition wife gets share in property 

 

3) wife is entitled to a equal share on a partition between her husband and her sons, and she can sue for her share if she has not been assigned a share in the partition

 

 

 

4)funds cannot be transferred or sold without the consent of all coparceners, and even the karta cannot transfer it to anyone without everyone’s consent

Ajay Sethi
Advocate, Mumbai
94718 Answers
7530 Consultations

5.0 on 5.0

1. Wife is not a coparcener hence cannot claim a share in the Husband's HUF property.

However she can claim a share out of her husband's share in the property after his lifetime.

2. As the head of the family, karta’s powers of management are almost absolute. He may mange the property of the family, the family affairs, the business the way he likes, he may mismanage also, nobody can question his mismanagement. He is not liable for positive failures. He may discriminate between the members of the family. But he cannot deny maintenance /use/occupation of property to any coparcener. The ever-hanging sword of partition is a great check on his absolute powers.

3. The first answer above suits this question.

4. The rental income shall remain in the HUF funds, hence it is a common fund belonging to all the coparceners.

If somebody wants their share in the property or income,. they may get the property partitioned and the HUF can be dissolved upon partition among the coparceners.

5. Wife is not a coparcener of husband's HUF property.

T Kalaiselvan
Advocate, Vellore
84919 Answers
2195 Consultations

5.0 on 5.0

Dear client, 

1) wife can claim the share when the husband is dead 

2) Karta needs the consent of coparceners 

3) 1/3

4) yes 

5) yes she can get

Thank you

Anik Miu
Advocate, Bangalore
8873 Answers
110 Consultations

4.7 on 5.0

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