Question: My father inherited a property that originally belonged to his father (my grandfather), who had self-acquired it. After my grandfather’s death, my father and his brother filed a partition suit, and in 1996, they received their respective shares through a court decree. The partition documents clearly state that the properties were divided as individual (separate) properties — not as HUF properties. However, for the past 15 years, my father filed income tax returns for the rental income from his share of the property under a HUF PAN. There is no HUF deed, no bank account in the name of HUF, no declaration, or any other document stating the property belongs to a HUF. The only indication is the rental income reported under the HUF PAN, likely done for tax-saving purposes. My father passed away in 2022. He is survived by three legal heirs: my mother and two daughters (including me). Now, one of the daughters claims that the property is HUF property, and therefore, our mother has no share in it. My questions: Does filing rental income under a HUF PAN legally make the property HUF property, despite a partition decree that clearly granted individual ownership? Can my mother claim her rightful 1/3rd share as a legal heir, since the property was not part of any formal HUF? How do courts typically treat such situations — where the only "evidence" of HUF is ITR filings, but all legal documents show individual ownership? Looking for legal clarity on whether such ITR filings alone can override a valid partition decree and affect legal heir rights.
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Partition decree makes it clear it is separate properties and not HUF properties
further there is nomHUF bank account , no deed , no declaration that property is HUF property
3) property is not HUF property merely rental income is shown as HUF in income tax returns
4) mother can claim her share in property
Mere filing of Income Tax Returns as an HUF cannot convert the property into an HUF owned property. To fix the tax implications, you may have the same rectified through your CA in the income tax portal and pay the deficit tax, if any, to avoid any tax implications.
Your mother has a rightful claim over the property to the extent of her share as per intestate succession.
To show your bona fide before Court, you will need to have this glitch in the income tax portal fixed in order to show that the said tax deposit was not intentional, but a mere mistake, which you are working on rectifying.
When a partition of huf property takes place the wife of the karta gets a share equal to that of the son
After 2006 amendment daughters are treated like sons
So when a partition takes place the mother (widow of karta) will get a share which is equal to the share of the daughter
So in this case the widow and 2 daughters will each be entitled to 1/3rd share
Even if intestate succession is considered and property is taken as self acquired property of deceased, the above share of 1/3rd each will remain same
So the contention of the daughter that mother would not get any share on partition is baseless
In the context of my deceased father, who was the Karta as per the Income Tax Return and had an HUF account linked to the HUF PAN, and who also held individual ownership of the same property as per the 1996 Compromise Partition Suit: 1. Is my mother entitled to a one-third share of the property—whether it is HUF property (post-2005 Amendment) or self-acquired individual property? 2. Considering there is an ongoing partition suit, can my mother gift her lawful undivided one-third share to me at her discretion before the partition is finalized and her exact portion is allotted, irrespective of whether the property is HUF or self-acquired?
Q. 1 is answered
Q. 2 in absence of any stay order she can gift. I am taking it that she is also a party to the partition suit. And her 1/3rd share is disputed. So if pending the suit she transfers her share to the daughter, such transfer will be subject to the final outcome of the suit
Although the wife is not a coparcener, on partition of the HUF, she is entitled to a share equal to that of the sons.
she is also entitled to share in self acquired property
Kindly clarify whether any stay orher is passed in partition suit
@Ajay Sir and @Yusuf Sir, In response to your clarification: there is currently no stay order or injunction. She is the first defendant. The plaintiff is attempting to prolong the suit until her death to claim a half share. My mother wishes to secure her share by gifting it to me, as I have been her sole caregiver for the past three years. Can my mother gift her lawful undivided one-third share to me now, before the suit determines her definite share, regardless of whether the property is HUF or self-acquired?
Mother can execute a gift deed for her share in property as there is no stay order passed by court
Division of property through partition decree on merit, makes the property separate property of the sharer. Such decree prevails all other documents including return of IT. Production of decree settles all claims regarding joint nature of such property. A civil Court of competent jurisdiction is final adjudicating authority, not any other statutory entity. The sharer can deal with his/her share in any manner he/she wishes.
Yes but the gift will be subject to the final outcome of the litigation
So if the Plaintiff fails to prove that the mother is not entitled to 1/3rd share then the gift will remain unaffected
However If the P proves that the mother is not entitled to 1/3rd share then the property will be equally divided between the daughters and the donee daughter will have to forego the 1/3rd share transferred from the mother and that 1/3rd share will revert to the 2 daughters so that the property can be divided into 2 equal parts. However the P proving so is highly unlikely since on a partition the widow of the karta will get an equal share as that allotted to the daughters
In any event the deceased father held 1/3rd share considering the property to be HUF. So his 1/3rd will go to his heirs who are his widow and 2 daughters equally. So the mother cannot be excluded.
In my view upon partition your father became the exclusive owner of the property which became his self acquired property and lost the character of a HUF property. Upon his demise intestate the property will devolve as per intestate succession. Merely because the rent of the property was shown as rental income of the HUF will not change the character of the property. Showing the rent as income of HUF was merely for tax planning in order to save tax. Whether the rent was actually applied for the purpose of the HUF and its so called members, requires a trial. If the P proves that the rent was used for the benefit of the HUF then she would win. If not, she will fail in her claim that there is a HUF and the subject property is huf property
Yes she can give her share to you anytime through any registered deed
If the property is owned by HUF then rental income will be taxed in HUF or else it will be taxed at the tax bracket of the individual.
The property is reported to have been acquired by a partition deed, hence it becomes the self acquired property of that individual.
If there are no other properties in the common hotpotch and only this property is shown in the ITR as HUF property to avoid taxes but the property title deed describes this as individual's self acquired property, then it cannot be claimed as ancestral property.
Therefore your mother has a right for her share at par with the other legal heirs of your father upon intestate death of your father.
1. From your contents it do not appear to be an ancestral property though your father was paying at the rate of HUF towards the rental income derived from this property, all the documents show tht it was your father's self acquired property.
2. Yes, your mother can very well transfer her legitimate share in the property in favor of the person of her choice even though there is a civil suit going on for partition.
The validity of the same will depend on the outcome of the suit.
If there is no stay order passed by the court in this regard, yor mother can very well transfer her share in the property in your favor without any problem, however the validity will depend on the outcome of the suit by the court.
This property may not be considered as an ancestral property, it clearly appears to be your father's self acquired property hence upon his intestate death this property will devolve equally upon his legal heirs/successors in interest.
Therefore your mother's entitlement of one third unidentified share in the property may be transferred by her to you by a gift deed.
Division of property through partition decree on merit, makes the property separate property of the sharer.
Filing rental income from the property under a Hindu Undivided Family (HUF) PAN does not, in itself, transform individually owned property into HUF property. The Supreme Court and various High Courts have consistently held that the legal character of a property does not change merely on the basis of income tax filings, particularly when there is a clear partition decree and all title documents indicate individual ownership. In your case, the 1996 partition decree and documents explicitly state individual ownership, not HUF status, and there is no HUF deed or declaration. The reporting of income under an HUF PAN for tax savings does not override the clear legal documentation of ownership.
As your father passed away intestate (without a will), his self-acquired or individually owned property devolves among his Class I legal heirs under the Hindu Succession Act, 1956—these include the widow (your mother) and both daughters. Therefore, your mother is legally entitled to a one-third share of the property, and your sister’s claim that she has no share due to the property becoming HUF is not tenable.
Where the only “evidence” of HUF is the filing of income tax returns in the name of HUF, but all legal records, partition decrees, and property documents indicate sole and separate ownership, courts will generally uphold the nature of the property as individual property. Mere ITR filings cannot alter ownership status and do not create legal HUF property, especially in the absence of supporting documentation (HUF deed, bank account, etc.).
Regarding your mother’s right to gift her share: Even if the property were considered HUF, after the 2005 Amendment to the Hindu Succession Act, all daughters and the widow become coparceners, and the widow is entitled to a share upon partition. If the property remains undivided, she holds an undivided share that is her own property, which she may gift, but the recipient cannot claim physical possession until the partition is finalized. If the property is self-acquired or individually owned, your mother can generally gift her undivided one-third share even before the suit is decided, but the gift will only entitle you to her share as determined by the eventual outcome of the partition proceedings.
Since there is no stay order or injunction against your mother and she is a defendant in the ongoing partition suit, she may lawfully execute a gift deed of her one-third undivided share in favor of any person—including you. However, as the partition is not yet concluded and exact boundaries are not specified, what will be transferred is her right, title, and interest in the property, as finally determined by the court.
To summarize:
Filing income under an HUF PAN does not convert individually owned property into HUF property. Clear title and partition decree prevail.
Your mother is entitled to a one-third share as a legal heir under Hindu succession law.
Your mother may gift her undivided share in the property to you, even during the pendency of the partition suit, but you will only receive what is ultimately allotted to her after the suit is decided.
Courts generally do not recognize tax filings alone as changing the legal nature of property ownership.
Should you or your mother need support in drafting legal documents, managing the ongoing suit, or have further questions, feel free to contact us for assistance at .
No. ITR filings alone do not change the legal character of property. Since the 1996 partition decree gave your father individual ownership, reporting rent under HUF PAN for tax saving has no effect. Courts go by title documents and decree, not tax treatment.
Yes. As per succession law, your mother is a Class I heir along with the two daughters. She is entitled to 1/3rd share in your father’s individual property.
Yes. Even if the property is undivided, each heir has a defined fractional share from the date of your father’s death. Your mother can gift her undivided 1/3rd share to you by a registered gift deed, unless there is a specific court injunction/stay preventing transfer (which you confirmed there is not).
Courts will treat the property as self-acquired of your father, not HUF, because:
Partition decree proves individual ownership.
No HUF deed, no family nucleus, no joint possession beyond tax filings.
ITR under HUF PAN = mere tax arrangement, not proof of HUF ownership.
1. Reporting rental income under a HUF PAN does not convert an individually owned property into HUF property.
The 1996 partition decree clearly granted individual ownership to your father, and that holds more legal weight than ITR filings. Income tax returns are primarily for taxation purposes and cannot override registered or court-decreed ownership documents. The absence of an HUF deed, bank account, or declaration further supports that no formal HUF was created.
2. Your mother is entitled to a 1/3rd share as a legal heir after your father’s death, since the property was individually owned. Even if it were HUF property, post the Hindu Succession (Amendment) Act, 2005, a wife is entitled to her share upon the death of the Karta.
3. Courts generally treat ITR filings under HUF as weak evidence, especially when contradicted by stronger documentary evidence like a court decree. Without any express act of converting the property into HUF property (e.g., declaration, gift, or contribution), the property remains self-acquired or individually owned.
4. Regarding the gift: Even if the property is under a pending partition suit, your mother, being a co-owner (and no stay or injunction existing), can gift her undivided 1/3rd share to you legally. It will be subject to final partition but is valid in law. Her right to gift is not curtailed merely because the final metes and bounds are not yet drawn.
Based on the details you've provided and general principles of Indian law, here is a breakdown of your questions:
1. Does filing rental income under a HUF PAN legally make the property HUF property, despite a partition decree that clearly granted individual ownership?
No, simply filing income tax returns (ITRs) under a Hindu Undivided Family (HUF) PAN does not automatically override a legal partition decree. A court decree is a powerful legal document that formally separates a property and establishes individual ownership.
Here's why:
Legal vs. Tax Status: The Income Tax Act recognizes a HUF as a "person" for tax purposes, allowing families to file separate returns to save on taxes. However, this tax status does not determine the legal ownership of a property. The legal character of the property (whether it's individual or HUF) is governed by Hindu personal law, not by tax laws.
A "Deeming" Provision: Courts have held that a mere declaration or the use of an HUF PAN for tax purposes is not enough to change the character of a property, especially when there is a clear legal document like a partition decree stating otherwise.
Requisite for HUF Property: To convert a self-acquired property into HUF property, the owner must perform a formal act of "blending" or "throwing the property into the common hotchpot." This requires a clear and unequivocal intention to give up one's individual right to the property and treat it as a joint family asset. The existence of a HUF deed, an HUF bank account, or a registered declaration would be strong evidence of this intent. In your case, the absence of these documents and the existence of a contrary court decree significantly weaken the claim that the property is HUF property.
2. Can my mother claim her rightful 1/3rd share as a legal heir, since the property was not part of any formal HUF?
Yes, if the property is considered your father's self-acquired or separate property, your mother has a clear legal right to an equal share.
Here's the legal basis for this:
Self-Acquired Property: The property was initially self-acquired by your grandfather. After the partition decree, your father's share became his separate and individual property. It did not retain the character of ancestral or HUF property, as a partition formally dissolves the joint ownership.
Intestate Succession: Since your father died without leaving a will (intestate), the succession of his property is governed by the Hindu Succession Act, 1956.
Class I Heirs: Under this act, the widow (your mother), sons, and daughters are all Class I heirs. Class I heirs inherit the property simultaneously and equally. Therefore, your mother, you, and your sister would each be entitled to a 1/3rd share of the property.
3. How do courts typically treat such situations?
Courts are generally very cautious about claims of a property being HUF property, especially when the only evidence is ITR filings.
Here's a summary of the judicial perspective:
Strongest Evidence is Legal Documentation: Courts give significant weight to legal documents like registered partition deeds and court decrees. These documents are considered definitive proof of ownership.
ITR Filings are not Conclusive Proof of Ownership: While ITR filings under an HUF PAN might be used as a piece of evidence, they are not conclusive. The Income Tax Department's assessment of a property as HUF property for tax purposes does not dictate its ownership under civil law.
Intention is Key: The court will look at the owner's intention. The fact that there was no HUF deed, no HUF bank account, or any other formal act of blending would suggest that the ITR filings were a purely tax-saving measure and not a genuine declaration of the property's legal character.
Burden of Proof: The burden of proving that the property is indeed a HUF asset lies with the person making that claim. In this case, your sister would need to provide concrete evidence beyond the ITR filings to prove that your father had a clear and unequivocal intention to convert his separate property into an HUF asset. The partition decree would be a powerful piece of evidence to counter her claim.
Ans - 2
Here is a breakdown of your questions based on the information provided:
1. Is my mother entitled to a one-third share of the property—whether it is HUF property (post-2005 Amendment) or self-acquired individual property?
The answer to this is a strong yes, your mother is entitled to a share in the property, but the legal basis for her share differs depending on whether the property is considered HUF or self-acquired.
If the property is considered self-acquired individual property:
As discussed previously, the 1996 partition decree that granted your father his share as an "individual property" is a strong piece of evidence.
Under the Hindu Succession Act, 1956, if a Hindu male dies intestate (without a will), his property devolves upon his Class I heirs.
Class I heirs include the deceased's widow (your mother), sons, and daughters.
Since your father is survived by his wife (your mother) and two daughters (you and your sister), the property would be divided equally among the three of you.
Therefore, your mother is entitled to a 1/3 share of the property.
If the property is considered HUF property (post-2005 Amendment):
Even if the court were to disregard the 1996 partition decree and accept the ITR filings as evidence of an HUF, your mother is still entitled to a share.
The Hindu Succession (Amendment) Act, 2005, brought significant changes to coparcenary rights. While the amendment primarily focused on giving daughters equal rights as sons, it also has implications for a widow's share.
A widow is not a coparcener by birth, but she becomes a member of the HUF upon marriage.
Upon the death of a coparcener (your father), his undivided share in the HUF property devolves by intestate succession to his Class I heirs.
This means that your father's notional share in the HUF property (the share he would have received had a partition taken place immediately before his death) would be divided equally among his Class I heirs: your mother, you, and your sister.
The Supreme Court has clarified that a widow is entitled to a share in her deceased husband's portion of the HUF property, along with the children.
Therefore, even in this scenario, your mother would be entitled to a share of the property.
In either case, the claim that your mother has no share in the property is legally incorrect.
2. Considering there is an ongoing partition suit, can my mother gift her lawful undivided one-third share to me at her discretion before the partition is finalized and her exact portion is allotted, irrespective of whether the property is HUF or self-acquired?
This is a critical question, and the answer is generally yes, your mother can gift her undivided share.
Here's the legal reasoning behind this:
Rights of a Co-owner: As a legal heir, your mother has a definite, though undivided, share in the property. This right exists even before the physical division of the property through the partition suit.
Transfer of Property Act: Section 44 of the Transfer of Property Act, 1882, allows a co-owner to transfer their share in the property. The person to whom the share is transferred (the donee, in this case, you) steps into the shoes of the transferor (your mother) and acquires the same rights.
Gift Deed: Your mother can execute a registered gift deed to transfer her undivided share to you. The deed must be properly drafted, stamped, and registered as per the law.
Limitations: The gift of an undivided share comes with a few limitations, especially until the partition is finalized:
The donee (you) cannot claim possession of a specific portion of the property.
You cannot make any alterations or constructions on the property without the consent of the other co-owners.
Your rights are limited to the undivided share, and you will have to wait for the final partition decree to get your specific portion.
Ongoing Partition Suit: By executing a gift deed, your mother is essentially transferring her "right to a share" in the partition to you. You would then become a party to the partition suit and would be entitled to receive your mother's share once the court finalizes the division. The partition suit would continue, but the final allotment would now be made to you for the share you received from your mother.
Ans- 3 - Yes, your mother can gift her lawful undivided one-third share to you now, before the suit determines her definite portion, irrespective of whether the property is categorized as HUF or self-acquired.
Here's the legal basis for this:
Nature of the Right: Your mother, as a legal heir, has a well-established and definite, though undivided, interest in the property. This is a vested right that arose the moment your father passed away. It is not a mere possibility or a future right. This right is a transferable interest in the property, even while its physical boundaries are yet to be determined by the court.
Transfer of Property Act, 1882: Section 44 of the Transfer of Property Act, 1882, is the key legal provision that allows this. It explicitly states that when one of two or more co-owners of an immovable property transfers their share, the transferee (you, in this case) acquires the same rights as the transferor (your mother). This includes the right to joint possession or other common enjoyment of the property.
Gift Deed as a Valid Transfer: A gift deed is a legally recognized method of transferring ownership of a property. For the gift to be valid, the following must be done:
The gift deed must be executed by your mother (the donor).
It must be accepted by you (the donee).
The deed must be registered with the Sub-Registrar of Assurances. This is mandatory for the transfer of immovable property to be legally effective.
Appropriate stamp duty must be paid.
Effect of the Ongoing Partition Suit: The fact that a partition suit is ongoing does not prevent the transfer of an undivided share. When your mother gifts her share to you, you step into her shoes as a co-owner. You become a party to the partition suit, and the court's final decree will allot the one-third share to you, not to your mother. The suit will continue, but it will now be a matter of dividing the property among the remaining parties, with you holding your mother's share.
Addressing Potential Objections:
From your sister (the plaintiff): Your sister's attempt to prolong the suit is likely to be based on the hope that your mother's death will cause her share to devolve in a manner more favorable to the plaintiff. However, by gifting her share to you, your mother prevents this from happening. Your sister would have no legal ground to object to a validly registered gift deed.
From the Court: A court will generally not interfere with a legal transfer of property rights, especially when there is no injunction or stay order in place. The court's role is to ensure a fair partition among all current co-owners, and a registered gift deed simply changes the identity of one of the co-owners.
Ans- 3 - Yes, your mother can gift her lawful undivided one-third share to you now, before the suit determines her definite portion, irrespective of whether the property is categorized as HUF or self-acquired.
Here's the legal basis for this:
Nature of the Right: Your mother, as a legal heir, has a well-established and definite, though undivided, interest in the property. This is a vested right that arose the moment your father passed away. It is not a mere possibility or a future right. This right is a transferable interest in the property, even while its physical boundaries are yet to be determined by the court.
Transfer of Property Act, 1882: Section 44 of the Transfer of Property Act, 1882, is the key legal provision that allows this. It explicitly states that when one of two or more co-owners of an immovable property transfers their share, the transferee (you, in this case) acquires the same rights as the transferor (your mother). This includes the right to joint possession or other common enjoyment of the property.
Gift Deed as a Valid Transfer: A gift deed is a legally recognized method of transferring ownership of a property. For the gift to be valid, the following must be done:
The gift deed must be executed by your mother (the donor).
It must be accepted by you (the donee).
The deed must be registered with the Sub-Registrar of Assurances. This is mandatory for the transfer of immovable property to be legally effective.
Appropriate stamp duty must be paid.
Effect of the Ongoing Partition Suit: The fact that a partition suit is ongoing does not prevent the transfer of an undivided share. When your mother gifts her share to you, you step into her shoes as a co-owner. You become a party to the partition suit, and the court's final decree will allot the one-third share to you, not to your mother. The suit will continue, but it will now be a matter of dividing the property among the remaining parties, with you holding your mother's share.
Addressing Potential Objections:
From your sister (the plaintiff): Your sister's attempt to prolong the suit is likely to be based on the hope that your mother's death will cause her share to devolve in a manner more favorable to the plaintiff. However, by gifting her share to you, your mother prevents this from happening. Your sister would have no legal ground to object to a validly registered gift deed.
From the Court: A court will generally not interfere with a legal transfer of property rights, especially when there is no injunction or stay order in place. The court's role is to ensure a fair partition among all current co-owners, and a registered gift deed simply changes the identity of one of the co-owners.
Thank you
1. Since, your father got the said property by way of Partition suit , then it will be considered as his self acquired property and not huf
- Further, filing the return after showing the said property as huf property not change the nature of the property legally
- Hence you mother is entitled to 1/3rd i.e. equal share in the property left by her husband , as the said property is self acquired property
2. Yes, she can transfer her share in your favor by way of registered gift deed or she can release her share in your favor by way of a registered relinquishment deed.
