Coparceners can ask for partition of HUF property3 min read . Updated: 22 Oct 2019, 11:28 PM IST
- It should be kept in mind that all coparceners are members of a Hindu Undivided Family, but the reverse is not true
- The sons and daughters of a deceased coparcener become members and coparceners of the HUF automatically
What is the rule regarding death of a female coparcener (daughter) in a Hindu Undivided Family (HUF) if she is married? Does her legal heir become a member of the HUF?
—Name withheld on request
Prior to 9 September 2005, daughters were not entitled to get rights over their father’s ancestral properties under Hindu law. This position changed ever since Section 6 of the Hindu Succession Act, 1956 was amended in 2005. Post the 2005 amendment, daughters have been held to become coparceners since their birth in the same manner as sons, enjoying the same rights and liabilities over the coparcenary properties.
Therefore, upon demise of a female coparcener, who is governed by Mitakshara laws, her sons and daughters will also become coparceners to her share in the coparcenary property by virtue of their birth. In other words, the sons and daughters of a deceased coparcener become members and coparceners of the HUF automatically.
All coparceners are members of an HUF, but not vice-versa. The main difference is that coparceners are entitled to ask for partition of an HUF. People married into a family, such as wife of a coparcener, become members but not coparceners. Therefore, a husband will become a member of the HUF and inherit from the deceased wife, but won’t become a coparcener.
My wife was the owner of one-third of an undivided residential apartment. She bequeathed her share to me in her Will. If all owners were to sell the property, how can I convey my share to the buyer?
We are assuming that the deceased wife is Hindu. The Indian Succession Act, 1925 empowers a Hindu to dispose of his or her property by way of a Will or other testamentary dispossession. The person who has executed his or her last Will is a testator. The person who is named in the Will is a beneficiary. Further, a probate of a Will is required to be obtained from a competent court if the testator was subject to the jurisdiction of the lieutenant-governor of Bengal; or if the testator or the property involved were within the local limits of the ordinary original civil jurisdiction of the high courts of Madras or Bombay.
Since you haven’t mentioned the location of the testator at the time of execution of her last Will or the location of the property, it is not possible to comment whether a probate of the Will of the deceased wife is required.
Further, as per the Will executed by your wife, you are stated to have the ownership of her one-third share in the residential apartment. In case you intend to sell the one-third share, along with the co-owners of the remaining share, you can opt either of the options.
First, you can directly execute a conveyance deed in favour of the prospective buyer, along with the other co-owners as a co-seller of the apartment. In this scenario, you are required to be present before the concerned sub-registrar of properties for presenting the conveyance deed for registration and for admitting execution of the same in favour of the prospective buyer. Second, you can execute and register a power of attorney in favour of the co-owners or a third party authorizing them to execute a conveyance deed in favour of the buyer with respect to your one-third share and receive the sale price on your behalf. In this case, you are not required to be present before the concerned sub-registrar of properties for presenting the conveyance deed for registration and for admitting execution of the same in favour of the prospective buyer. In such cases, the power of attorney-holder will represent you before the concerned sub-registrar of properties for the completion of the sale.
Abhilash Pillai is partner, Cyril Amarchand Mangaldas. Queries and views at firstname.lastname@example.org