Jury is out on whether daughter's children have rights in her father's HUF2 min read . Updated: 14 Aug 2020, 02:07 PM IST
- Lawyers are divided on whether daughters' children get equal rights in their maternal grandfather's Hindu Undivided Family, like their mother.
- As there is no clarity, lawyers usually advise families to give some share of the ancestral property to daughters' children during the partition.
The Supreme Court's (SC) clarification that daughters have equal rights in their fathers' Hindu Undivided Family (HUF) right from birth, as sons do, has once again stoked a debate on the rights and the position of daughters' children.
Lawyers are divided on whether daughters' children also get equal rights in their maternal grandfather's HUF, like their mother. "Courts have said that a daughter has equal rights like son in her father's HUF. Her kids will, therefore, have the same rights that her brother's children," said Varghese Thomas, partner, J Sagar Associates.
Nirav Shah, litigation partner at DSK Legal, agrees with the view. "It is a pre-existing right of daughters' children". According to Shah and Thomas, children in the family will be coparceners in father's and mother's side of HUFs by birth. A coparcener is someone who has equal rights in the ancestral property of a family.
However, some disagree. "It is not yet clear whether children are coparceners in ancestral assets that belong to their mothers' side of the family," said Bijal Ajinkya, partner, Khaitan & Co. Ajinkya looks after the direct tax, estate planning, trusts and private client and investment funds practice. "Unless the law clearly states the rights that children of daughters have, it cannot be assumed that they automatically become coparceners," she said.
To further explain it, Ajinkya draws an analogy with the rights a daughter's children have in her father's assets. It's clearly stated in the law that an individual's grandchildren (both from son and daughter) will have rights in the assets created by him, if the person dies without distributing them. However, in the case of an HUF, which deals with ancestral property, there is no mention of the rights of daughters' children.
The debate is vital as coparceners have equal rights in an HUF. They can ask for partition and can transfer their rights to anyone through a Will or a trust. With SC clarifying that daughters have equal rights in an HUF since her birth, there can be a rise in disputes. One of the critical questions yet to be addressed in courts is whether daughters' children can ask for partition in their mothers' side of HUF.
As there is no clarity, lawyers usually advise families to give some share of the ancestral property to daughters' children during the partition, and take their signatures on the partition deed stating the share they have received. A partition deed is a contract, and a contract without consideration is invalid. That's why lawyers suggest that families should give some consideration to daughters' children.