My Hindu Undivided Family (HUF) has an inherited immovable property. My family consists of my wife, two married daughters, a married son and I. All of them have two children and are staying independently. Who are the coparceners of the HUF and have a share in the HUF property? Is it my wife and children or the grandchildren are also to be treated as coparceners? Do the grandchildren have equal share?

—Name withheld on request

Prior to the Hindu Succession (Amendment) Act 2005, only male members descended from a common ancestor such as sons, grandsons and great grandsons could be coparceners in HUF property and have an interest by birth in coparcenary or HUF property. However, now, by virtue of the Hindu Succession (Amendment) Act 2005, daughters are also coparceners in their own right, in the same manner as sons. For a daughter to be a coparcener, however, both she and her father should have been alive on 9 September 2005 (as per the judgement of the Supreme Court in Prakash & Ors. versus Phulavati & Ors.).

Accordingly, both your daughters and your son are coparceners in your HUF property. Their respective children and grandchildren (both male and female) would also, on birth, become coparceners and have a share in the HUF property.

Your wife is a member of the HUF but not a coparcener. She would be entitled to a share in the HUF property only upon partition.

Specific shares in the HUF property crystallize only at the time when a partition of the HUF property takes places. The share of a coparcener may increase or decrease depending upon the number of births and deaths in the family.

On partition between a father and children, the father and children get an equal share “per stirpes". Per stirpes means that each branch of the family will receive an equal share of the property. Therefore, in this case, the grandchildren will get an equal share in the property to which their branch is entitled; viz the share which their father is entitled to. Though, a wife cannot demand a partition of the HUF property, if there is a partition, she will get a share equal to that of her husband and her children who are part of the HUF family. In your case, if partition of your HUF property had to take place today, the HUF property would be divided into five shares, your wife and you each taking one share and the remaining three shares devolving upon each branch of your children equally (per stirpes, where your grandchildren will each get a share in their respective parent’s shares).

Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries. Queries and views at mintmoney@livemint.com


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