The father, aged 84 years and mentally and physically fit, living in Pune has 2 sons and daughter all living in Mumbai. He has substantial self acquired movable and immovable assets and also substantial movable and immovable HUF assets managing as Karta. He wants to deny any share in his self acquired assets to his youngest son and he has mentioned so in his registered WILL. However, he needs advise as how he could deny share to his youngest son from the HUF assets. His youngest son has filed a forged will of his mother for probate at Bombay High Court wherein it is being contested for its validity and one of the witnesses has filed affidavit that he has never ever seen or met the testator, the testator use to sign but there are thumb impressions on the will, testatrix was not of good mental health being patient of advanced cancer, etc etc.His father had most of his self acquired movable and immovable assets in joint name with his deceased wife. His wife was simple housewife and had no income of her own and had never ever filed tax returns. His youngest son has claimed 50% of the jointly held assets in the probate and also father's PPF account and HUF assets. HC has declined his claim on PPF and HUF assets when he asked for freezing of all bank accounts. High court declined request for any of the bank account freeze. The probate application is sub-judice at Bombay high court. Due to this fraudulent act, before his youngest son files case for his share of HUF assets as coparcenary, his father now wants to make a partition of the HUF assets to himself, his eldest son and daughter and their siblings but deny any share to the youngest son and his one daughter. Please guide as how he could legally execute his wish on partition of HUF movable and immovable assets. by denying any share to his youngest son.
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Hi, As the property is the ancestral properties (HUF), father can't deny the shares to his legal heirs and right of the properties to the legal heirs was acquired by birth so father can't deny the share to the son or daughter.
2. As far as self acquired properties is concerned he can dispose of the property to anybody according to his wills and fancy.
a father as karta can effect a partition between himself and his son of the joint family property of HUF. However, he has to allot equal shares to the sons. The father is expected to act bona fide and only aggrieved party can seek relief by way of appropriate proceedings. However, till such a partition is held invalid by a competent court, it must be held as valid. Apporva Shantilal Shah vs. CIT [1983] 141 ITR 558 (S. C
The Will no doubt is in the court seeking grant of probate. But on the face of it (through your contents), it can be opined that the he may not succeed to prove the Will before court as the attesting witness has categorically stated that he has any knowledge about the testator and neither has seen her signing it. Further chronic terminal illness can be elucidated as another strong reason for dismissing his petition seeking grant of probate. If he is not able to succeed in the probate case, he may turn his attention fully to somehow get a share in the HUF property.
Further, as a legal heir to his mother, he is entitled to a legitimate share in her intestate properties. Also, he is entitled to a share in the HUF properties as a coparcener.
He cannot claim any share in your father's self acquired properties. Therefore your father can settle down his self acquired properties alone in favor of the beneficiaries he may choose.
A Hindu Undivided Family (HUF) means a body consisting of persons linearly descendant from a common ancestor. This includes their wives and unmarried daughters, who are staying together jointly. Coparceners are only those males who are within 4 degrees in lineal descendant from the common male ancestor . The daughters cease to be a member of their father's HUF on their marriage.
In case the property is received from father's HUF, then it can form part of HUF of such Hindu.
But the share of the father in the HUF, upon his death, can go to his legal heirs, which will be their individual property ,
Therefore he cannot be denied a share in the HUF property.
1. The karta being the manager of the HUF property is under a duty to manage the property to make it productive. The share of karta is not greater than the share of other coparceners. The only exclusive right enjoyed by the karta is the right to alienate the property for the benefit of estate or to meet a legal necessity. He cannot deny the lawful share to the individual coparcener.
2. Any of his sons is at liberty to file a lawsuit for partition to cull out his share in the property.
Sincere thanks to all panelists for quick responses. My follow-up question: The daughter was married in 1989 and she has one daughter. Is she and her daughter a beneficiary as coparcenary of HUF assets?? Can she ask for partition?? Due to late filing of caveat in the probate petition and thereby delay in its admission, the younger son filed Notice of motion for bank account freeze without making the other heirs as party. The court allowed the motion. however, after the caveat was admitted and objections to the bank account freeze order were raised, the HC ordered unfreezing of all accounts, after about 6 months, and has stated in its order that the probate applicant had misguided the court by not disclosing that he has asked for freeze of PPF and HUF accounts also. The other frozen bank accounts consisted of HUF and Joint Demat accounts with substantial value stock holdings. During this freeze period, due to stock market crash, the value of the combined stock holdings reduced by about 25% - roughly 40 Lakhs. The father now wants to file a damage suit for this loss. He also wants to publicly disown his son by inserting a newspaper advertisement and also in his pleadings in the testamentary suit at HC on grounds of mental torture, harassment and bringing disrepute to the family. Therefore, while the father does the partition of the HUF assets now by excluding his youngest son, can he plead for set-off, and damages for bringing disrepute to the joint family to subvert his claim of his share of HUF whenever objections to partition is claimed by the younger son.
Hi, as per the latest Supreme Court judgement when there is no prior partition before [deleted] and father has alive after 2005 then the daughter has right to share in the ancestral properties.
1) Under the Hindu law, any coparcener can make a claim for partition
2) daughter, after her marriage, would remain a coparcener in her father’s HUF and at the same time, can become a member in her husband’s HUF. -
3) married daughter can ask for partition of HUF assets
4) A minor can claim partition through his guardian.
5) father can file suit for damages against the son if he so desires .
6) it is only after trial court will determine amount of damages payable
7) father can not claim set off while carrying out partition
1. The daughter can also claim a share in the ancestral property as she is a coparcener.
2. The father has a sound legal ground to seek damages, more so in view of the finding of the HC.
3. Disownment has no legal sanction. He is at liberty to execute a will to deny a share to his son/
The daughter was married in 1989 and she has one daughter. Is she and her daughter a beneficiary as coparcenary of HUF assets?? Can she ask for partition??
The daughter married in the year 1989 will not entitled to a share as a coparcener.
During this freeze period, due to stock market crash, the value of the combined stock holdings reduced by about 25% - roughly 40 Lakhs. The father now wants to file a damage suit for this loss.
He cannot file suit for damage or loss which occurred without the control of the person who moved the said motion.
He also wants to publicly disown his son by inserting a newspaper advertisement and also in his pleadings in the testamentary suit at HC on grounds of mental torture, harassment and bringing disrepute to the family.
For testamentary suit, he cannot disown his son, it may not have any effect, because if his son is entitled to a hare as a coparcener, then any move this way will remain unaffected.
Married daughter in 1989 - right in HUF property -There is conflicting opinion given by Adv T Kalaiselvan. I request other panelists to review and provide more clarity on this issue. Father wants to make partial partition. He proposes that The HUF demat account shall be closed by selling the shares / debentures etc and sale proceeds to be shared by father, his son and daughter, son's son and daughter's daughter in equal proportions. The dwelling flat at Pune, an HUF property, solely occupied by father, he wants to retain till his death. Can he make a partial partition this way if all family members (except his youngest son) are agreeable?? Can the youngest son, with whom he has a dispute, and he also has his own flat in Mumbai, ask for partition of the PUNE flat - an HUF property occupied by his father?? Demat account in name of father jointly with his deceased wife as second holder: The investments were made by father, tax returns towards income from dividends, interest, etc were taken in father's individual tax returns filed since account inception till date. His deceased wife had was a simple housewife, had no income of her own and had never ever filed tax returns. Therefore, in case the probate application, wherein he has claimed entire share of his mother (50% of the value of stock holding) is rejected by HC, can the probate applicant his younger son still claim a partial share of his deceased mother as if she has died intestate?? Companies act and NSDL bye laws state the following: Companies Act – 1956, Schedule 1, Table F. Transmission of shares 23. (i) On the death of a member, the survivor or survivors where the member was a joint holder, and his nominee or nominees or legal representatives where he was a sole holder, shall be the only persons recognised by the company as having any title to his interest in the shares. 26. A person becoming entitled to a share by reason of the death or insolvency of the holder shall be entitled to the same dividends and other advantages to which he would be entitled if he were the registered holder of the share, except that he shall not, before being registered as a member in respect of the share, be entitled in respect of it to exercise any right conferred by membership in relation to meetings of the company: 109A. Nomination of shares: (2) Where the shares in, or debentures of, a company are held by more than one person jointly, the joint-holders may together nominate, in the prescribed manner, a person to whom all the rights in the shares or debentures of the company shall vest in the event of death of all the joint- holders. National Securities Depository Ltd., BYE LAWS 9.10. TRANSMISSION OF SECURITIES 9.10.1. NSDL shall effect the transmission of security balances of any Client due to death, lunacy, bankruptcy, insolvency or by any other lawful means other than transfer. 9.10.2. In case where the deceased was one of the joint holders in the Client account, the surviving Client(s) shall be the person(s) recognised by NSDL as having any title to the security balances in that joint Client account. 9.10.3. In case where the deceased was a sole holder of the Client account, his legal heir(s) or the legal representative(s) shall be the only person(s) recognised by NSDL as having any title to the security balances in that sole Client account. 9.10.4. Such surviving joint holder(s) or legal heir(s) or legal representative(s) shall be required to produce such evidence and follow the procedures prescribed in the Business Rules for the purpose of transmission of security balances in their favour.
1) Partition under Hindu Law, can be total or partial. In total partition all the members cease to be members of the HUF and all the properties cease to be properties belonging to the said HUF.
2) it may be partial vis-a-vis properties where, some of the properties, are divided among the members other properties continue to be HUF properties.
3) Under the Hindu law, any coparcener can make a claim for partition.son can seek partition of Pune flat
4) son can claim partial share of shares lying in demat account wherein the mother was joint holder
5) no doubt the companies act provide that on death of joint holder surviving holder shall be only persons recognised as having interest iin the shares
6) even if NSDl bye laws provide the surviving Client(s) shall be the person(s) recognised by NSDL as having any title to the security balances in that joint Client account then also son can claim share
7) the reason being provisions of companies act cannot overirde personal laws of succession
8)the shares forms part of estate of deceased and therefore property of deceased must be devolved on the heirs as per section 6 of Hindu Succession Act, 1956 and not by nomination.
Nominations under sections of the Companies Act cannot displace the law of succession or open a third line of succession, the Bombay high court recently held. Justice Gautam Patel also clarified that nominees can only be trustees of the actual legal heirs and beneficiaries under a will.
The judge was dealing with a legal question over a nominee's rights arising in two disputes over estates. The nominees claimed their exclusive rights, citing a verdict passed by Justice Roshan Dalvi in 2010, which put their rights on a "higher pedestal" than that of legal heirs and legatees. But Snehal Shah, counsel for J J Salgaonkar, who had moved the HC, said the verdict was "per incuriam" (of no force) and not good law, a submission that Patel held was right.
Salgaonkar moved court for administration of his late father's estate, but two persons said a substantial fixed deposit of Rs 50 lakh and a bulk of mutual fund investments had their names as nominees. Their lawyer Rajendra Pai said as nominees they succeeded to these investments which no longer can form part of the deceased's estate.
The nominee continues to hold the securities in trust and as a fiduciary for the claimants under the succession law. Nominations under sections 109A and 109B of the Companies Act and bye-law of 9.11 of the Depositories Act, 1996, cannot and do not displace the law of succession."
a nomination will only serve to discharge the responsibility or liability of the issuing depository vis-a-vis the nominee, but the nominee continues to be in a fiduciary capacity vis-a-vis all other claimants under either of the two statutorily recognized modes of succession".
Sincere thanks to Adv Ajay Sethi. Noted your comments. Putting aside all Succession act, Companies act, NSDL bye-laws,etc, as a common man would like to ask a simple question in view of facts of my case: A retired man has invested say an amount of Rs. 2 crores in shares, Bonds, mutual funds, FD's etc after a professional advise from a expert so that he could earn yearly about Rs 4 lakhs from these investments which should be adequate to take care of his and his spouses financial security till death. In case of any unfortunate eventuality of death of either of the spouse, for seamless transfer of ownership of these assets and continued uninterrupted financial security he inserts his wife's name as joint holder in all assets. Upon death of one of the spouse - say the wife as in my case, if the 50% of these investments are to be given away to our heirs during the life time of the elderly retired man, his annual income would also reduce by half and this would not be enough for his survival. He made these investments because the NSDL bye- laws and Companies act assured him that ownership of his investments would be transferred seamlessly upon death of either to the survivor. The judgment of Justice Gautam Patel is regarding rights of nominees vis a vis heirs under the Succession act. It did not touch upon the subject of survivors in jointly held demat accounts. Are there any judgments taking away or curtailing the rights of surviving demat account holder in case of death of one of the joint holders??? Incidentally, there was no nomination specified in this jointly held demat account at the time of death of the wife. Given these facts, how would the father now defend his securities in Demat account for his financial security for food, electricity, expensive medication etc if 50% of these hard earned investments will have to be given away either by way of the contested testamentary petition and if it is rejected then again by distribution to his 3 children as if his wife died intestate. Also what is that the other retired elderly persons should do for their financial security of either of the spouses till death of the last survivor upon prudently assuming that their sons/daughters would not be financially capable to take care of them or would not take care of them for whatever other reasons??
1) it is always advisable to execute a will for bequeathing movable securities in favour of the beneficiary
2) will should be attested by 2 witnesses
3) medical certificate of testator should be enclosed
4) will should be registeted preferably
Married daughter in 1989 - right in HUF property -There is conflicting opinion given by Adv T Kalaiselvan. I request other panelists to review and provide more clarity on this issue.
What is the conflict did you observe in this rule or law. Before the amendment of HSA in the year 2005, the daughter were not entitled to a share in the ancestral property/HUF property as they were not coparceners and the amendment has no retrospective effect. You can clarify and take any number of opinions from skilled, experience and expert advocates practicing civil law.
Father wants to make partial partition. He proposes that The HUF demat account shall be closed by selling the shares / debentures etc and sale proceeds to be shared by father, his son and daughter, son's son and daughter's daughter in equal proportions.
Surviving heirs shall be entitled to their respective share out of the sale proceeds. Further daughter's daughter will not be entitled to any share, as far as the coparcenery is concerned it extinguishes with the daughter and not next descendants of the daughter when she is alive and upon her death her legal heirs will be entitled for her share.
The dwelling flat at Pune, an HUF property, solely occupied by father, he wants to retain till his death. Can he make a partial partition this way if all family members (except his youngest son) are agreeable??
By a partition he can retain the Pune flat if agreed by others.
Can the youngest son, with whom he has a dispute, and he also has his own flat in Mumbai, ask for partition of the PUNE flat - an HUF property occupied by his father??
It is partition agreement within family, so he can very well claim but if his proposal not accepted by others, he may move court with a partition suit.
Can the youngest son, with whom he has a dispute, and he also has his own flat in Mumbai, ask for partition of the PUNE flat - an HUF property occupied by his father??
Since the father is the joint holder the clause 9.10.3 is very clear;
9.10.3. In case where the deceased was a sole holder of the Client account, his legal heir(s) or the legal representative(s) shall be the only person(s) recognised by NSDL as having any title to the security balances in that sole Client account.;
However as per Hindu succession act section 6, the son as a legal heir to his deceased mother is entitled to a legitimate share in her movable property too.
The judgment of Justice Gautam Patel is regarding rights of nominees vis a vis heirs under the Succession act. It did not touch upon the subject of survivors in jointly held demat accounts. Are there any judgments taking away or curtailing the rights of surviving demat account holder in case of death of one of the joint holders???
Your observation is very right and have raised a valid point. Though the referred judgment, as per your contention did not touch the subject of survivors of jointly held accounts, this case relates to the dispute of nominee or nomination.
Though NSDL bye-laws clause 9.10.3 says differently, it has no overriding power to over ride the Hindu Succession Act which is the prevailing law of the land on the subject issue.
Incidentally, there was no nomination specified in this jointly held demat account at the time of death of the wife.
Then automatically the share of the deceased joint holder shall devolve on her legal heirs.
Given these facts, how would the father now defend his securities in Demat account for his financial security for food, electricity, expensive medication etc if 50% of these hard earned investments will have to be given away either by way of the contested testamentary petition and if it is rejected then again by distribution to his 3 children as if his wife died intestate.
If things are moving in an unplanned way, all such things have to be faced. That is why it is always advisable to consult and take an opinion from the experts of the respective fields before venturing into such investments.
Also what is that the other retired elderly persons should do for their financial security of either of the spouses till death of the last survivor upon prudently assuming that their sons/daughters would not be financially capable to take care of them or would not take care of them for whatever other reasons??
A Will bequeathing the property to the beneficiary who may be the other spouse executed by both the spouses favoring each other separately and got it registered shall save the present problems.