{"id":1592,"date":"2013-09-26T10:15:29","date_gmt":"2013-09-26T04:45:29","guid":{"rendered":"http:\/\/www.itatonline.org\/articles_new\/?p=1592"},"modified":"2013-10-04T23:48:23","modified_gmt":"2013-10-04T18:18:23","slug":"a-treatise-on-the-tax-implications-of-hindu-undivided-family-huf","status":"publish","type":"post","link":"https:\/\/itatonline.org\/articles_new\/a-treatise-on-the-tax-implications-of-hindu-undivided-family-huf\/","title":{"rendered":"A Treatise On The Tax Implications Of Hindu Undivided Family (HUF)"},"content":{"rendered":"<div class=\"articleblogheader\">\n<div class=\"articlepicture2\"><img loading=\"lazy\" decoding=\"async\" src=\"https:\/\/www.itatonline.org\/articles_new\/wp-content\/uploads\/2010\/07\/k_c_singhal.jpg\" alt=\"Shri. K. C. Singhal\" width=\"83\" height=\"100\" \/><\/div>\n<p>A Treatise On The Tax Implications Of Hindu Undivided Family (HUF)<\/p>\n<p>    Shri. K. C. Singhal, Advocate, VP, ITAT (Retd) <br \/>\n The law on taxation of HUFs is a complicated branch of legislation and requires expert knowledge of Hindu Law. The author, a former Vice-President of the Tribunal &#038; now a practicing advocate, has carefully analyzed all the important judgements on the subject and explained the nuances and fine points of the law with particular emphasis on the recent amendments to the Hindu Succession Act 1956\n<\/div>\n<div class=\"chandrika\">\n<div align=\"right\"><span class=\"journal2\"><a href=\"https:\/\/www.itatonline.org\/articles_new\/index.php\/a-treatise-on-the-tax-implications-of-hindu-undivided-family-huf\/#link\">Link to download this article in pdf format is at the bottom<\/a><\/span><\/div>\n<\/p>\n<p>Hindu Law has been discussed by various authors in  the light of various judgments of courts. The said law stands amended by  various enactments. This discussion would deal with the various aspects of  Hindu Law which are relevant for the purpose assessment of income and wealth in  the status of Hindu Undivided Family (HUF) as well as the impact of the  provisions of Hindu Succession Act 1956 as amended by Hindu Succession  (Amendment) Act 2005 which are relevant for the purpose of assessment of income  and wealth in the status of HUF under Income Tax Act 1961. <u>Firstly, would be  discussing the legal position under the original Hindu law and then discuss the  impact of the relevant provisions of Hindu Succession Act 1956.<\/u><\/p>\n<\/div>\n<p><!--more--> <\/p>\n<div class=\"chandrika\">\n<table width=\"100%\" height=\"240\" border=\"0\" cellpadding=\"5\">\n<tr>\n<td valign=\"top\"><iframe src=\"https:\/\/ws-in.amazon-adsystem.com\/widgets\/q?t=itatonlineorg-21&#038;o=31&#038;p=8&#038;l=as1&#038;asins=B00CSS7IXY&#038;ref=tf_til&#038;fc1=000000&#038;IS2=1&#038;lt1=_blank&#038;m=amazon&#038;lc1=0000FF&#038;bc1=000000&#038;bg1=FFFFFF&#038;f=ifr&#038;MarketPlace=IN&#038;ServiceVersion=20070822&#038;WS=1&#038;ID=8042_ProductLink&#038;Operation=GetProductLink&#038;\" style=\"width:120px;height:240px;\" scrolling=\"no\" marginwidth=\"0\" marginheight=\"0\" frameborder=\"0\"><\/iframe>\n<\/td>\n<td valign=\"top\"><iframe src=\"https:\/\/ws-in.amazon-adsystem.com\/widgets\/q?t=itatonlineorg-21&#038;o=31&#038;p=8&#038;l=as1&#038;asins=8177339435&#038;ref=tf_til&#038;fc1=000000&#038;IS2=1&#038;lt1=_blank&#038;m=amazon&#038;lc1=0000FF&#038;bc1=000000&#038;bg1=FFFFFF&#038;f=ifr&#038;MarketPlace=IN&#038;ServiceVersion=20070822&#038;WS=1&#038;ID=8042_ProductLink&#038;Operation=GetProductLink&#038;\" style=\"width:120px;height:240px;\" scrolling=\"no\" marginwidth=\"0\" marginheight=\"0\" frameborder=\"0\"><\/iframe>\n<\/td>\n<td valign=\"top\"><iframe src=\"https:\/\/ws-in.amazon-adsystem.com\/widgets\/q?t=itatonlineorg-21&#038;o=31&#038;p=8&#038;l=as1&#038;asins=938023340X&#038;ref=tf_til&#038;fc1=000000&#038;IS2=1&#038;lt1=_blank&#038;m=amazon&#038;lc1=0000FF&#038;bc1=000000&#038;bg1=FFFFFF&#038;f=ifr&#038;MarketPlace=IN&#038;ServiceVersion=20070822&#038;WS=1&#038;ID=8042_ProductLink&#038;Operation=GetProductLink&#038;\" style=\"width:120px;height:240px;\" scrolling=\"no\" marginwidth=\"0\" marginheight=\"0\" frameborder=\"0\"><\/iframe>\n<\/td>\n<td valign=\"top\"><iframe src=\"https:\/\/ws-in.amazon-adsystem.com\/widgets\/q?t=itatonlineorg-21&#038;o=31&#038;p=8&#038;l=as1&#038;asins=817733946X&#038;ref=tf_til&#038;fc1=000000&#038;IS2=1&#038;lt1=_blank&#038;m=amazon&#038;lc1=0000FF&#038;bc1=000000&#038;bg1=FFFFFF&#038;f=ifr&#038;MarketPlace=IN&#038;ServiceVersion=20070822&#038;WS=1&#038;ID=8042_ProductLink&#038;Operation=GetProductLink&#038;\" style=\"width:120px;height:240px;\" scrolling=\"no\" marginwidth=\"0\" marginheight=\"0\" frameborder=\"0\"><\/iframe>\n<\/td>\n<\/tr>\n<\/table>\n<div align=\"center\">\n<div class=\"\"><\/div>\n<\/div>\n<p><strong><u>As per  original Hindu Law<\/u><\/strong>\n<\/p>\n<p><strong><u>&ldquo;Hindu  undivided family&rdquo;<\/u><\/strong><strong> <\/strong><\/p>\n<p>Under the Income Tax Act 1961, <u>&ldquo;Hindu undivided  family&rdquo;<\/u> is one of the taxable entities specified u\/s 2(31). Therefore, it  is necessary to understand the scope of the said expression. It would be  sufficient to refer to the decision of the apex court in the case of <strong>Surjit lal Chhabra 101 ITR 776 SC<\/strong> wherein the court explained the scope of the  said expression as under:<\/p>\n<p>&#8211; In the  first place, joint family and undivided family are synonymous terms. P780<strong><u><\/u><\/strong><\/p>\n<p>&#8211; The  expression &quot; Hindu undivided family &quot; must be construed in the sense,  in which <u>it is understood under the Hindu law<\/u>. P781<strong><u><\/u><\/strong><\/p>\n<p>&#8211; A <strong>joint Hindu family<\/strong> consists of persons <u>lineally  descended from a common ancestor and includes their wives and unmarried  daughters<\/u>. <u>The daughter, on marriage, ceases to be a member of her  father&#8217;s family and becomes a member of her husband&#8217;s family<\/u>.&rdquo;P783<strong><u><\/u><\/strong><\/p>\n<p>&#8211; That the  joint and undivided family is the normal condition of Hindu society. The <strong>presumption,<\/strong> therefore, is that the <u>members  of a Hindu family are living in a state of union, unless the contrary is  established<\/u> (Mayne&#8217;s Hindu Law and Usage, eleventh edition, page 323 ;  Mulla&#8217;s Hindu Law, fourteenth edition, page 284). P782<strong><u><\/u><\/strong><\/p>\n<p>&#8211; The phrase &#8216;Hindu undivided family&#8217; is used in the statute with reference, not  to one school only of Hindu law, <u>but to all schools&rdquo;<\/u><strong><u><\/u><\/strong><\/p>\n<p>&#8211; <u>The  plea that there must be at least two male members to form a Hindu undivided  family as a taxable entity also has no force<\/u>.  The expression &#8216;Hindu undivided family&#8217; in the Income-tax Act is used in the  sense in which a Hindu joint family is understood under the personal law of  Hindus. <u>Under the Hindu system of law a joint family may consist of a single  male member and widows of deceased male members,<\/u> and apparently the  Income-tax <u>Act does not indicate that a Hindu undivided family as an  assessable entity must consist of at least two male members<\/u>.P 783-84&quot;(<strong>Gowli Buddanna-vs-CIT 60 ITR 293 SC at 296;  N V Narendernath-v- CWT 74 ITR 190 SC)<\/strong>. <strong><u>&nbsp;<\/u><\/strong><u><\/u><\/p>\n<p>&#8211; A <strong>man who separates<\/strong> from his father or  brothers may, nevertheless, <u>continue to be joint with the members of his own  branch.<\/u> He becomes the head of a new joint family, if he has a family, and  if he <u>obtains property on partition<\/u> with his father and brothers, that  property <u>becomes the ancestral property of his branch<\/u> qua him and his  male issue. P782. See also:<em> Bhagwan Dayal<\/em>&nbsp;v.&nbsp;<em>Reoti  Devi<\/em>&nbsp;AIR 1962 SC 287.<\/p>\n<p><strong><u>Family without  male members<\/u><\/strong><\/p>\n<p>&#8211; There  may be families consisting of females only. For example, after the death of  father, it may consist of widow of the diseased and her daughters. According to  Hindu law, a joint Hindu family must have a male member. Normally disputes had  arisen in the past where subsisting joint family was reduced to a family with  single male member. The question arose whether income from the ancestral  property should continue to be assessed in the status of HUF? The stand of the  deptt was that there must be two male members in the joint family for assessing  the income in the hands of HUF. The apex court held that in such cases, joint  family continues since there is nothing under Hindu law to say that there must  be two male members in the joint Hindu family. (Gowli Buddanna-vs-CIT 60 ITR  293 SC at 296; N V Narendernath-v- CWT 74 ITR 190 SC)&nbsp; <\/p>\n<p>&#8211; In the case of <u>CIT-vs-Verappa Chettiar  76 ITR 467 SC<\/u>, after  the death of karta, the property of joint family was held by the three widows  as members of the Hindu undivided family. The question arose whether income  from&nbsp; such property could be assessed in  the hands of HUF? The apex court (<u>bench of 2 judges<\/u>)held that<u> it is  not predicated of a Hindu joint family that there must be a male member in  existence.<\/u> <u>Even after the death of the sole male member, <strong>so long as<\/strong> the property which was  originally of the joint Hindu family remains in the hands of the widows of the  members of the family and is not divided among them, the joint family  continues.<\/u>&nbsp; <strong>&nbsp;<\/strong><\/span>\n<\/p>\n<p>&#8211; <strong>However, <\/strong>the  above judgment was considered by the apex court in case of <strong>Sandhya Rani Dutta 248 ITR 201 SC<\/strong> wherein it was observed (by a <u>bench  of 3 judges<\/u>):\n<\/p>\n<blockquote>\n<p>&ldquo;In the present case, as aforestated, the  assessee and her two daughters inherited in their individual capacity a  one-third share each in the estate of the deceased. We have no authority before  us which can lead us to the conclusion that the assessee and her two daughters  were capable of forming a joint Hindu family or of throwing the interest of any  one of them in the inherited property therein. As we have stated, <u>the  concept of Hindu females forming a joint Hindu family by agreement amongst  themselves appears to us to be contrary to a basic tenet of the Hindu personal  law.&rdquo;<\/u><\/p><\/blockquote>\n<p>  The decision in the case of <u>CIT-vs-Verappa  Chettiar 76 ITR 467 SC <\/u>&nbsp;was distinguished by observing as under:<\/p>\n<blockquote><p> &ldquo;The Tribunal rightly noted that this Court  had there held that so long as the property which was originally of a joint  Hindu family remained in the hands of the widows of the members of the family  and was not divided among them, <strong>the  joint family continued<\/strong>. The conclusion that the Tribunal drew from this was  erroneous, namely. &quot;Thus, according to the Supreme Court also, only  females can also <strong>form<\/strong> a joint Hindu  family.&rdquo;<\/p><\/blockquote>\n<p>&#8211; <strong>Branch of a <\/strong>bigger HUF is also a HUF which can be considered as smaller  HUF.<strong><em> Bhagwan Dayal<\/em>&nbsp;v.&nbsp;<em>Reoti  Devi<\/em>&nbsp;AIR 1962 SC 287<\/strong>. <strong>Also Surjit lal Chhabra case (supra)<u> <\/u><\/strong><\/p>\n<p><strong><u>Other aspects<\/u><\/strong><u> <\/u><\/p>\n<p>Apart from the above, it is also necessary to keep in mind  certain other decisions which are relevant. As is apparent from the said  expression, <u>the member of an HUF must be Hindu<\/u>. A question arose before the  SC in the case of <strong>Champa Kumari  Singhi 83 ITR 720 SC<\/strong> whether jains are Hindus or not. After considering the  issue in details, the court held that Jains are Hindus by observing as under:<\/p>\n<blockquote><p> <strong><em>&ldquo;The real question for determination is whether  the word &lsquo;Hindu&rsquo; preceding the words &lsquo;undivided family&rsquo; signifies that the  undivided family should be of those: (<\/em><\/strong><strong>i<em>) who profess Hindu religion ; or (<\/em>ii<em>)  to whom Hindu law applies; or (<\/em>iii<em>) who though not professing Hindu  religion have come to be regarded as HUF by judicial decisions and legislative  practice. It may be mentioned that for a long time the courts and particularly  the Privy Council seem to have taken the view that Jains are of Hindu origin;  they are Hindu dissenters and although generally adhering to the ordinary Hindu  law they do not recognise any divine authority of the Vedas nor do they  practice a number of ceremonies observed by the Hindus.&rdquo;&nbsp;<\/em><\/strong><\/p><\/blockquote>\n<p>  In view of the above  decision, the concept of HUF is not only applicable to Hindus by religion but  also to those professing <u>Sikh, Jaina or Buddhist religion.<\/u><\/p>\n<p>  Apart from the above  decision, it would be useful to notice the <u>definition of the word &lsquo;Hindu&rsquo;<\/u> in Hindu Succession Act 1956 as well as in Constitution of India.<\/p>\n<p>  <u>Article 25 of the constitution  of india<\/u> <u>wherein Explanation II provides as under<\/u>:\n  <\/p>\n<blockquote><p> &ldquo; In  sub-clause (b) of clause (2), <u>the reference to Hindus<\/u> shall be construed  as <u>including a reference<\/u> to persons professing the <u>Sikh, Jaina or  Buddhist religion,<\/u> and the reference to Hindu religious institutions shall  be construed accordingly.&rdquo;<\/p><\/blockquote>\n<p>  <u>Hindu  Succession Act 1956<\/u> applies to any person who is Hindu by religion in  any of its forms AND any person who is Buddhist, Jain or Sikh by religion And  any other person who is not a Muslim, Christian, Parsi or Jew by religion.<\/p>\n<p>  It  has also been <u>explained<\/u> in the aforesaid Act that any child, whose one  of his parents is Hindu, Buddhist, Jain or Sikh by religion and is brought up  as member of the religion to which his parent belong to, shall be treated as  Hindu.<\/p>\n<p>  Any  person who is convert or reconvert to Hindu, jain, Sikh or Buddhist religion  shall also be treated as Hindu.<\/p>\n<p>  In the case of CWT-vs  Sardar Surjit Singh 138 ITR 186 Cal, <strong>Sikhs<\/strong> were held to be Hindus.( see also: 223 ITR 139 Pb, 103 ITR 661 Pb.)<\/p>\n<p>  In the case of <strong>CWT-vs- Sridharan 104 ITR 436 SC<\/strong>, the assessee was a member of HUF  and he received certain properties on partition of such HUF. At that time he  was unmarried. Later on, he <u>married a Christian girl<\/u>. He got a son from  such wedlock and assessee claimed that he and his son formed an HUF and estate  received on partition was assessable in status of HUF. It was <u>found that son  was brought up as Hindu. <\/u>Accordingly, the apex court held that <u>son  should be treated as Hindu considering the legislative intent in various  enactments relating to Hindus<\/u>.<\/p>\n<p>  In the case of Add <strong>CIT-vs-Venkataraman 109 ITR 247(Mad),<\/strong> it was a <strong>converse <\/strong>situation i.e. where family of Hindu husband, Christian  wife and daughter brought up as Christian was claimed to be an HUF. The court  held that it could not be assessed as HUF..<\/p>\n<p>  <strong>Conversion: <\/strong>&nbsp;&nbsp;<em>If  a Hindu gets converted as a Christian, he automatically gets severed from the  Hindu family. (Pappu Rsdiar-vs-CGT 116 ITR 773; Abraham&nbsp;<\/em>v.&nbsp;<em>Abraham&nbsp;<\/em>[1863] 9 MIA 195&nbsp;PC).&nbsp; <strong><u>&nbsp; <\/u><\/strong><\/p>\n<p>  <strong><\/strong><strong>Family-meaning thereof:&nbsp; <\/strong><em>The word &#8216;family&#8217; always signifies a <strong>group<\/strong>. Plurality of persons is an essential attribute of a family<strong>. A single person, male or female, does <\/strong>&nbsp;&nbsp;not constitute a family<\/em><em>. He or she would remain, what is inherent in the very nature of  things<strong> <\/strong>an<strong> <\/strong>individual,  a lonely wayfarer <strong>till perchance he or  she finds a mate. [C Krishna Prasad-CIT 97 ITR  343 SC]<\/strong><\/em> <u>It was a case where the assessee was unmarried on the date of  partition. <\/u><\/p>\n<p>  Though Hindu law is  governed by the thoughts of various schools, almost whole of India is governed  by two schools i.e. Mitakshra Law and Dayabhaga law. Dayabhaga law mainly  applies to Bengal and Assam while Mitakshra Law applies almost rest of India.  The distinction between the two is explained below.<\/p>\n<p>  <strong><u>All members<\/u><\/strong><u> of HUF have right of maintenance out of HUF properties. <\/u><\/p>\n<p>  <u>There is also no limit to the number of members in a joint  family<\/u>.<\/p>\n<p><strong>Note: <\/strong>joint Hindu family  system has been abolished in Kerela wef 1.12.76 and therefore, no person can  claim the status of HUF after that. 222 ITR 765 SC. <\/p>\n<p><strong><u>Mitakshra-vs-Dayabhaga Law&nbsp; <\/u><\/strong><\/p>\n<p>  There are various schools of Hindu law but mainly there are  two schools i.e. Mitakshara law and Dayabhaga Law. Mitakshara law applies to  almost whole of India except Bengal and Assam areas where Dayabhaga law is  applicable. The distinction between the two is explained below:<strong><u><\/u><\/strong><\/p>\n<p>&#8211; Under  Mitakshara law, the foundation of a coparcenary is laid when son is born to  Mitakshra father while under Dayabhaga law, foundation of a coparcenary is laid  on the death of father leaving more than one son. However, under Dayabhaga law,  the sons inherit the property as their personal property but by mutual agreement  can form the coparcenary. <\/p>\n<p>&#8211; Under Mitakshara law, the joint family is by  operation of law and every family is presumed to be joint family unless proved  otherwise but under Dayabhaga law, heirs of the deceased do not become members  of HUF by operation of law. They remain co-owners of the property inherited but  by mutual consent they can form joint family. In case of Sandhya Rani Dutta,  248 ITR 201 SC, the court held that where property was inherited by ladies  only, they could not form joint family in the absence of male <\/p>\n<p>&#8211; Under  Mitakshara law, son gets a right in the family property by birth but under  Dayabhaga law, son gets right to property on death of father.<\/p>\n<p>&#8211; Under  Mitakshara law, the coparcener has undefined right in the family property since  share of coparceners goes on changing because of birth\/death of coparcener  because share in the coparcenary devolves by rule of survivorship while under  Dayabhaga law, the coparcener acquires a definite share on the death of father  by of&nbsp; inheritance.<\/p>\n<p>&#8211; Under  Mitakshara law, the coparcenary continues so long as coparceners exist. But  under Dayabhaga law, there is no such continuance automatically. However, the  brothers may agree to continue the coparcenary with mutual consent.<\/p>\n<p>&#8211; Under  Mitakshara law, son as coparcener can demand partition of family property while  under Dayabhaga law, no such right is available to coparcener.<br \/>\n&#8211; Under  Mitakshara law, the test is unity of ownership while under Dayabhaga law, it is  unity of possession. In <strong>CWT-vs- Biswanth  chattergee 103 ITR 536 SC<\/strong>, it was held that on father&rsquo;s death, the sons  became owners of the property in their own right and therefore the wealth of  deceased could not be assessed in hands of HUF.<u> <\/u><\/p>\n<p><strong><u>Creation of Hindu  undivided family<\/u><\/strong><\/p>\n<p>  There is a <u>myth <\/u>that HUF can be created by the act of parties. According to Mitakshara  Hindu law, it is a creature of law except in the case of adoption or reunion  where HUF can come into existence by act of parties. In the case of <strong>Bhagwan Dayal<\/strong><strong> v.&nbsp;Reoti  Devi&nbsp;AIR 1962 SC 287<\/strong>, it has been held that HUF coparcenary is a creation of law and <strong>cannot created<\/strong><strong> <\/strong><strong>by agreement of parties except in the case  of reunion.<\/strong><\/p>\n<p>  The apex court in the case of <strong><u>Surjit Lal Chhabra 101 ITR 776<\/u><\/strong> has clearly observed:<strong><\/strong><em>&ldquo;The joint  Hindu family, with all its incidents, is thus a <strong>creature of law<\/strong> and <strong>cannot  be created by act of parties<\/strong>, <u>except to the extent to which a stranger  may be affiliated to the family by adoption.&rdquo;<\/u><\/em> Thus every Hindu family is an  HUF unless proved otherwise. (see also 248 ITR 201 SC)<\/p>\n<p>  However<u>, under Dayabhaga law<\/u>,  the position is slightly different since heirs  of the deceased do not become members of HUF by operation of law. In the case <strong>of CIT-vs- Sandhya Rani Dutta 248 ITR 201 SC,<\/strong> the court was  considering a case under Dayabhaga law where a family consisted of father,  mother and two daughters. On the death of father, all three ladies inherited  properties in equal shares. Thereafter, by an agreement, they expressed to live  jointly and the inherited properties were declared to be properties of joint  family. <strong>The apex court held that they  could not form a HUF in the absence of male member<\/strong>. <strong>It is to be noted that under Dayabhaga law, two male members can form  HUF by agreement.<\/strong><\/p>\n<p><strong><u>Donor cannot create an HUF.<\/u><\/strong><\/p>\n<p>  In this connection, it is  important to see the decision of MP HC in case of<strong> <u>Satyanarayan Kanhaiyalal  Gagrani-vs-CIT [2008] 215 CTR 521 (MP)<\/u><\/strong><u> <\/u>wherein it has  been held that donor could not create an HUF. In that case facts were these: One S was the Karta of the assessee-HUF. This HUF  consisted of his wife B and three sons namely K, H and C. On 9-11-1981, one RB  executed a Will in respect of her movable and immovable properties whereby she  bequeathed her Rs.2 lakhs and jewellery to three smaller HUFs consisting of  members of aforementioned bigger HUF in equal shares, i.e., 1\/3rd to each HUF.  These HUFs consisted of S, B &amp; K, S,B &amp; H and S,B and C respectively.  The question arose as to whether such HUFs could be created by act of parties. The tax authorities as  well as the Tribunal held in negative and consequently held that such gifts  could only be considered as gifts in the hands of existing assessee. The  hon&rsquo;ble HC held as under:<\/p>\n<p>  <strong><em>Held<\/em><\/strong>&nbsp;that in view  of the principles laid down in the <strong>Supreme  Court decision in&nbsp;<em>Bhagwan  Dayal<\/em>&nbsp;v.&nbsp;<em>Reoti Devi<\/em>&nbsp;AIR 1962 SC 287<\/strong>, the view taken by  the Tribunal that creation of 3 smaller HUFs for bequeathing the properties by  Will alleged to have been executed by RB was not in accordance with the  principle applicable to formation of HUF under the&nbsp;Hindu Law  was the correct view being in accord with the law laid down by Courts on the  subject.<strong> <\/strong><\/p>\n<p><strong>Hindu coparcenery:<\/strong><\/p>\n<p>  It is to be noted that HUF is taxable in  respect of income arising\/accruing from ancestral properties which is also  known as coparcenery property. Other incomes earned by the members are assessable  as their individual income. It would therefore be appropriate to know about the  coparcenary.<\/p>\n<p><u>&nbsp;<\/u>A Hindu <strong>coparcenary <\/strong>is  a much narrower body than the joint family. It includes only those persons who <u>acquire  by birth an interest in the joint or coparcenary property<\/u> and these are the <u>sons, grandsons and great-grandsons of the holder of the joint property<\/u> for the time being, that is to say, <u>the three generations next to the holder<\/u> in unbroken male descent. Since under the Mitakshara law, the right to joint  family property by birth is vested in the male issue only, females who come in  only as heirs to obstructed heritage (sapratibandhadaya), cannot be  coparceners.(<strong>Surjit Lal Chhabra 101 ITR 776<u>;<\/u><\/strong><strong> State of Maharashtra-vs- Narayan Rao  Shamrao Deshmukh 163 ITR 31 SC<u>.)<\/u><\/strong> <u>This aspect of matter is important to  understand whether the income earned is to be assessed in the status of HUF or  not.<\/u><\/p>\n<p>    <strong><u>Incidents of coparcenery<\/u><\/strong><\/p>\n<p>&#8211; The lineal descendants of a person up to the third generation  acquire by birth ownership in the ancestral properties of such person.<\/p>\n<p>&#8211; That such descendant can, at any time, demand partition of  ancestral property.\n<\/p>\n<p>&#8211; That till partition each member of coparcenary has ownership extending  over the entire property conjointly with the rest coparceners.<\/p>\n<p>  &#8211; That as a result of such ownership, the possession and  enjoyment is common.<\/p>\n<p>  &#8211; That no alienation of property is possible without the  concurrence of coparceners unless it is for necessity.<\/p>\n<p>  &#8211; The interest of a deceased coparcener lapses on his death by  survivorship. So, interest of a coparcener in coparcenary property goes on  changing by birth\/death of a coparcener.<\/p>\n<p>(See: CED-v- Alladi Kuppuswami 108 ITR 439  SC at Page 449)<\/p>\n<p><strong><u>What is  meant by ancestral \/coparcenary\/ joint family property with reference to  HUF?&nbsp; <\/u><\/strong><u> <\/u><\/p>\n<p>  As per Hindu law<strong>, <u>ancestral  property<\/u><\/strong> means property <u>acquired by forefathers.<\/u> Therefore, any  property which is received by the coparcener <u>on partition<\/u> is always  considered as ancestral property. However, it is to be noted that if the  coparcener is <u>unmarried on the date of partition<\/u> then income from such  property would be <u>assessed in his hands in individual capacity<\/u> <u>till  he gets married<\/u>, reason being that single person cannot constitute family.<strong><em>(C Krishna Prasad-CIT 97 ITR 343 SC.) <\/em><\/strong>It was held<strong><\/strong>by the apex court that once a  property gets the <u>character of HUF\/ancestral&nbsp;  property, it continues to have such character<\/u> even though holder of  estate may be single. Till he gets married, he is the absolute owner and can  dispose it in any manner he likes. Therefore, i<u>n the absence of family, the  income from&nbsp; such property is liable to  be assessed in individual capacity. In case, he gets married before the end of  the year then, such income would be assessed in hands of HUF consisting of  himself and his wife.<\/u> <u> <\/u><\/p>\n<p>  The  expression &ldquo;<strong><u>Coparcenary  property<\/u><\/strong> <u>is <strong>wider than the expression  &lsquo;ancestral property&rsquo;<\/strong><\/u><strong>. <\/strong>It  would include the following:<\/p>\n<p>&#8211; Ancestral property i.e. the property inherited from  father, grandfather or great grandfather; share allotted on partition;<\/p>\n<p>&#8211; Property acquired by the coparceners with joint  efforts. In <strong>Madanlal-v- Yogabai AIR 2003  SC 1880,<\/strong> it has been held that property raised and developed by <strong>joint efforts<\/strong> of father and sons would  be joint family property;<\/p>\n<p>&#8211; Property acquired with the aid of or on account of  coparcenary property. <\/p>\n<p>&#8211; Property of the coparcener thrown into common  hotchpot of family funds. So, <\/span>a female member could not throw her self- acquired property in  common hotchpot of joint family. Pushpa devi-vs-CIT 109 ITR 730 SC. <\/p>\n<p>&#8211; The property received by HUF  having ancestral property as <u>gift or under a will<\/u> . Intention of the  donor is relevant while considering the character of the gifted property.<strong> (<\/strong>M.P. Periakaruppan Chettiar-vs-CIT 99 ITR 1 SC.)&nbsp; <\/p>\n<p>The expression <strong><u>Joint family\/HUF property<\/u> is, in my  opinion, still wider<\/strong>&ndash;A property may not be either ancestral or coparcenary  property yet may be considered as HUF property in certain cases. There may be a  family with a single male member without having ancestral\/coparcenery property.  Such family may receive gift from relatives or friends of members of family.  Further, the single male member of such family may blend his self acquired  property into joint family property.&nbsp;  Such property would neither be ancestral nor coparcenary property but  certainly be HUF property. To buttress this view, reference may be made to the  decision of the apex court in the case of <strong>Surjit  lal chhara (supra)<\/strong>. However, in such case, it was held that income from  such property would be assessable as personal income of the male person till  the birth of a son. <\/p>\n<p>    <u>So, distinction must  be&nbsp; kept in mind between the cases  falling within the ratio laid down by the apex court in the cases-<\/u><u>(Gowli Buddanna-vs-CIT 60 ITR  293 SC at 296; N V Narendernath-v- CWT 74 ITR 190 SC) and C. Krishan Prasad 97  ITR 343 SC) on one hand and the cases falling within the ratio of the decision in  Surjit Lal Chhabra 101 ITR 776 SC. <\/u><\/p>\n<p>    <strong>Whether property inherited from father can  be treated as HUF property?<\/strong> <\/p>\n<p>  As per the old Hindu  law, the property inherited by a coparcener was considered as ancestral  property but after the commencement of HSA 1956, the property of father  devolves by testamentary or intestate succession. The father has absolute right  over the property acquired by him on account of personal efforts or through  borrowed funds. He can dispose of such property as he wishes. <u>Hence,  property inherited from father cannot be treated as ancestral property. (<\/u><strong>CWT-vs-Chander Sen 161 ITR 370 SC)<\/strong> <\/p>\n<p>  <strong><u>Karta of HUF:<\/u><\/strong> <\/p>\n<p>  Under the Hindu law, the <strong>senior most male member is considered as Karta<\/strong> of such family. He  is under obligation to manage the affairs of such family. If under given  circumstances, such person is not in a position to discharge his obligation  then the next senior member can be the karta of HUF with the mutual consent.  Any member can also be appointed as manager.&nbsp; <\/p>\n<p>  In the case <strong>Narender  Kumar Modi 105 ITR 109 SC,<\/strong> the apex court approved this legal position by  holding that Karta may give up his right to manage and the <u>junior male  member of family can be appointed as Karta of HUF.<\/u><\/p>\n<p>  <strong><u>Powers  of Karta:<\/u><\/strong><\/p>\n<p>  1.Managing the affairs of HUF.&mdash;for this  purpose, the Karta is entitled for reasonable&nbsp; amount of salary,see-Jugal kishore  Baldev Sahai &ndash;v-CIT 63 ITR 238 SC<\/p>\n<p>  2.&nbsp;  control and become custodian of finances\n  <\/p>\n<p>  3. Can borrow money for &amp; on behalf of  HUF\n  <\/p>\n<p>  4. Spend money for the family &amp; not  accountable for it.\n  <\/p>\n<p>  5. NOT liable to submit account to  anybody.\n  <\/p>\n<p>  6. Can make partition of the family suo  moto.\n  <\/p>\n<p>  7.&nbsp;  quantum of partition shall be with Karta&rsquo;s liking.\n  <\/p>\n<p>  8. He can enter into contracts on behalf  of HUF and may allow others to represent HUF. HUF as such cannot enter into partnership and  therefore, karta or any other coparcener authorised can enter into agreement of  partnership.\n  <\/p>\n<p>  9. Can Gift away the movable properties of  HUF for natural love &amp; affection but within reasonable limit.\n  <\/p>\n<p>  10.&nbsp;  can transfer the immoveable property for pious purposes or the legal  necessity or for benefit of the family.<\/p>\n<p><u>Gift under the Hindu law<\/u>\n  <\/p>\n<p>  Karta of family can make a gift of ancestral immoveable  property within a reasonable limit keeping in view the total extant of  property.&nbsp;The powers of the&nbsp;  Karta or the manager of the Joint Hindu Family&nbsp;<em>vis-a-vis<\/em>&nbsp;coparcenary property have been summarised  in paragraphs 225, 226 and 258 of&nbsp;<em>Mulla&rsquo;s  Hindu Law&nbsp;<\/em>which reads :&mdash;\n  <\/p>\n<blockquote><p>  &quot;225. Although sons acquire by birth rights equal to those of  a father in ancestral property both movable and immovable, the father has the  power of making <u>within reasonable limits gifts of ancestral movable property  without the consent of his sons for the purpose of performing &lsquo;indispensable  acts of duty, and for purposes prescribed by texts of law,<\/u> as gifts through  affection, support of the family, relief from distress and so forth&rsquo;.******\n  <\/p>\n<p>  226.  A Hindu father or other managing member has power to make a gift <u>within  reasonable limits of ancestral immovable property for &lsquo;pious purposes&rsquo;.<\/u> However, the alienation must be by an act <em>inter vivos,&nbsp;<\/em>and <u>not by will<\/u>. A member  of a joint family <u>cannot dispose of by will a portion of the property even  for charitable purposes<\/u> and even if the portion bears a small proportion to  the entire estate. However, now see <u>section 30 of the Hindu Succession Act,  1956 .<\/u>\n  <\/p>\n<p>  258.  According to Mitakshara law as applied in all the States, <u>no coparcener can  dispose of his undivided interest in coparcenary property by gift.<\/u> Such  transaction being void altogether there is no estoppel or other kind of  personal bar which precludes the donor from asserting his right to recover the  transferred property. <u>He may, however, make a gift of his interest with the  consent of the other coparceners.<\/u><\/p><\/blockquote>\n<p>  However,  the apex court has given <u>extended meaning<\/u> to the powers of  Karta\/managing member by holding that he can gift the ancestral property of  reasonable amount to daughter. In&nbsp;<em>Guramma Bhratar Chanbasappa  Deshmukh<\/em>&nbsp;v.&nbsp;<em>Malappa<\/em>&nbsp;[1964] 4 SCR 497 and it was held :&mdash;\n  <\/p>\n<blockquote><p> &quot; <em>The father or his representative <u>can make a valid  gift, by way of reasonable provision for the maintenance of the daughter,  regard being had to the financial and other relevant circumstances of the  family<\/u>. By custom or by convenience, such gifts are made at the time of  marriage, but <u>the right of the father<\/u> or his representative <u>to make  such a gift is not confined to the marriage occasion<\/u>. It is a moral  obligation and <u>it continues to subsist till it is discharged. Marriage is  only a customary occasion for such a gift. But the obligation can be discharged  at any time, either during the lifetime of the father or thereafter<\/u>. It is  not possible to lay down a hard and fast rule, prescribing the quantitative  limits of such a gift as that would depend on the facts of each case <\/em><\/p><\/blockquote>\n<p>  In Kuppayee-vs-Raja Gounder 265  ITR 551 at 559 SC, it is held:\n  <\/p>\n<blockquote><p>&ldquo;whereas the father has the  power to gift ancestral movables within reasonable limits<u>, he has no such  power with regard to the ancestral immoveable property<\/u> or coparcenary  property. <u>He can, however make a gift within reasonable limits of ancestral  immovable property for &quot;pious purposes<\/u>&quot;. <u>However, the  alienation must be by an act&nbsp;<em>inter  vivos,&nbsp;<\/em>and not by will<\/u>.  This Court has extended the rule in paragraph 226 and held that the father was  competent to make a gift of immovable property to a daughter, if the gift is of  reasonable extent having regard to the properties held by the family. <\/p>\n<p>Extended meaning given to the words &quot;pious  purposes&quot; enabling the father to make a gift of ancestral immovable  property within reasonable limits to a daughter <u>has not been extended to the  gifts made in favour of other female members of the family.<\/u> Rather it has  been held that <u>husband could not make any such gift of ancestral property to  his wife out of affection on the principle of &quot;pious purposes.&nbsp;<\/u>\n  <\/p>\n<p>  This apart, the question of  reasonableness or otherwise of the gift made has to be assessed&nbsp;<em>vis-a-vis<\/em>&nbsp;the total value of the property held  by the family. Simply because the gifted property is a house, it cannot be held  that the gift made was not within the reasonable limits. As stated earlier, it  would depend upon a number of factors such as the status of the family, the  total value of the property held by the family and the value of the gifted  property and so on. It is basically a question of fact.&rdquo;&nbsp;<\/p><\/blockquote>\n<p>  <strong><u>Partition  of HUF property <\/u><\/strong><\/p>\n<p>  <strong>As per Hindu law.<\/strong><\/p>\n<p>&#8211; Partition is a process by which  a joint enjoyment is transformed into an enjoyment in severalty. Each one of  sharers had an antecedent title and therefore no conveyance is required.  CED-vs-Kantilal Trikamlal 105 ITR 92 SC at p 101.<\/p>\n<p>&#8211; Once shares of each sharer are  defined, the partition is complete. It is not necessary that it should be by  metes and bounds.<\/p>\n<p>&#8211; Even a single coparcener can  separate himself from rest of the family.<\/p>\n<p>&#8211; Even partial partition is  permissible. For example, joint family business could be divided while  retaining other properties as joint property.<\/p>\n<p>&#8211; Where there is partition  between different branches, the respective branches continue to remain joint.<\/p>\n<p>&#8211; Since partition can be effected  between coparceners only, a family with sole coparcener is not amenable to  partition. 111 ITR 539 Mad, CIT-v-Satpal Bansal 162 ITR 582(PH)(FB), 74 ITR 271  Guj. <\/p>\n<p><strong><u>Partition  under section 171 of I T Act 1961:<\/u><\/strong><\/p>\n<p>&#8211; <strong>Section  171 raises a legal fiction <\/strong><\/span>that an HUF, once assessed  shall be deemed to continue unless a finding of partition has been given under  this section. Consequently, unless a finding is recorded under section 171  that a partition has taken place, the income from the properties would be  included in the total income of the family by virtue of sub-section (1) of  section 171. (<strong> Kaloomal Tapeshwari  Prasad-vs-CIT 133 ITR 690SC)<\/strong><\/p>\n<p>&#8211; Section 171, as originally  enacted, applied to total as well as partial partition. However, sub section  (9) inserted by Finance (No 2)Act 1980 recognises only complete partition. The  cut of date is 31.12.1978. Thus partial partition effected after this date is  not given effect to by the AO even though such partition may be legal as per  Hindu Law. Hence, for the purpose of income tax assessment, the HUF shall be  deemed to continue notwithstanding the partial partition and the income from  all properties shall continue to be assessed in the hands of erstwhile HUF.<\/p>\n<p>&#8211; <strong>&nbsp;It is to be noted that section 171 applies to  those HUFs which have been assessed under the Act. So, in my opinion, partial  partition can still take place where HUF has not been assessed without invoking  this section<\/strong><\/span>. Such partition is not required to be recorded  under this section. This is fortified by the decision of SC in case o A  Thimmayya 55 ITR 666 SC wherein it was observed: &ldquo;<u>An order under sub-section (1) can only be made if  certain conditions co-exist&mdash;the family in question has been hitherto assessed  as undivided and a claim is made at the time of making an assessment that  partition of the family property has been made between the members or groups in  definite portions. Sub-section (2) of section 25A becomes effective only if an  order under section 25A(1) is made and not otherwise.&rdquo;<\/u><u>&nbsp; <\/u>See also&mdash;Trilochan Singh-v-CIT 180 Taxman  640 PH,CIT-v-Hari Kishan Gupta 117 Taxman 214 Del.<strong><u><\/u><\/strong><\/p>\n<p>&#8211; Section 171,  as applicable from A.Y. 1980-81, recognises only complete partition. <\/span><strong>&nbsp;Explanation <\/strong>to this section  recognizes <strong>only partition by metes and  bounds<\/strong> i.e. the physical division of property is condition precedent. So,  there is a departure from Hindu law. <strong>Even  a decree of court would not be sufficient or binding on AO unless physical  division takes place. ITO-vs- N K Sarada Thamptty 187 ITR 696 SC;&nbsp; Narender Modi-vs- CIT 105 ITR 109 SC<\/strong><\/p>\n<p>&#8211; <strong>Partition<\/strong> can be effected on demand of  coparceners <strong>or suo moto by the father<\/strong> in his superior power even without the consent of sons. Such  right can also be exercised even where sons are minors. <strong>Apoorva Shantilal Shah (Huf) Seth Gopaldas  (Huf)-vs-CIT 141 ITR 558 SC.<\/strong> <\/p>\n<p>&#8211; Although mere severance of the status of the family  may tantamount to partition under the Hindu law of Joint family, <strong>the requirement of the Income-tax Act is a  little more. <\/strong>A partition to be recognised under the Act must lead to <strong>physical division<\/strong> of the joint  properties. If the properties belonging to a HUF are not partitioned at all by  dividing them among the members, <strong>even  though capable of division, <\/strong>then the members of the family cannot say that  so far as those properties are concerned they stand divided<strong>.(CIT-vs-Venugopal Inani 239 ITR 514). <\/strong>In this case, partial  partition took place with respect to certain partition without making a  physical division. The AO was held to be justified in rejecting the claim.<\/p>\n<p>&#8211; If the property is not capable of  being divided physically then it should be divided to the extent possible  (Explanation to section 171). Apportionment <strong>on  an equitable basis,<\/strong> having regard to all relevant factors, <strong>is also a kind of physical division <\/strong>of  the properties contemplated in the&nbsp;Explanation&nbsp;to  section 171. Any other view will be one divorced from the realities of life.<strong> (Kallomal Tapeshwari Prasad 133 ITR 690SC).<\/strong><\/p>\n<p>&#8211; In the above case, there were a  large number of items of property. Assessee divided these among 10 members  having shares therein i.e without making physical division. It was contended  that these were incapable of being divided among the members. The SC held that  in such cases, they are usually apportioned <strong>on an equitable basis<\/strong> having regard to all relevant factors to  equalise the shares.<u> Such apportionment is also a kind of physical division  of the properties contemplated in the&nbsp;<\/u><u>Explanation&nbsp;to  section 171<\/u>. Any other view will be one divorced from the  realities of life. <strong>The instant case was  not a case where it was impossible to make such a division<\/strong>. <u>Nor was it  shown that the members were not capable of making payment of any amount for  equalisation of shares<\/u>. In fact, there was no material in the instant case  showing that the assessee ever seriously attempted to make a physical division  of the property as required by law. All that was attempted was to rely upon the  arbitrator&#8217;s award which were insufficient to uphold the claim of the assessee.  Accordingly the impugned properties were capable of physical division.<strong> Kallomal Tapeshwari Prasad 133 ITR 690SC<\/strong> <\/p>\n<p>&#8211; In case  of <strong>CIT-vs-Maharani Rajlaxmi Devi 224 ITR  582 SC<\/strong>, the court has held that recording of partition u\/s 171 is necessary  even in case falling u\/s 6 of the HSA. It observed: &ldquo;&nbsp;<u>it must be held that though for the purpose of HUF, <strong>section 6 of the Hindu Succession Act<\/strong>,  would govern the rights of the parties but insofar as income-tax law is  concerned, the matter has to be governed by section 171(1<\/u>).&rdquo;<strong><\/strong><\/p>\n<p>&#8211; It is mandatory that assessee must make a claim at the time  of making assessment u\/s 143\/144. If such claim is made, the AO is required to  make an enquiry into such claim after giving notice to all the members. After  making enquiry, AO is required to record a finding accepting\/rejecting the  claim.<strong><\/strong><\/p>\n<p>&#8211; <strong>Failure to make an  order on the claim made<\/strong><\/span> does not affect the jurisdiction of the ITO to  make an assessment of the Hindu family which had hitherto been assessed as  undivided. The ITO may assess the income of the Hindu family hitherto assessed  as undivided notwithstanding partition, <strong>if  no claim in that behalf has been made to him or if he is not satisfied about  the truth of the claim<\/strong> that the joint family property has been partitioned  in definite portions, <strong>or if on account  of some error or inadvertence he fails to dispose of the claim.<\/strong> In all  these cases his jurisdiction to assess the income of the family hitherto  assessed as undivided remains unaffected, for the procedure for making  assessment of tax is statutory. <u>Any error or irregularity in the assessment  may be rectified i<\/u>n the manner provided by the statute alone, and the  assessment is not liable to be challenged collaterally<strong>. ITO-v-A Thimmayya 55 ITR 666 SC.<\/strong> <\/p>\n<p>&#8211; <u>Unless an <strong>inquiry <\/strong>is undertaken by the department and a finding is recorded as required by  sub-section (3) of section 171 read with the definition of the expressions  &#8216;partition&#8217; and &#8216;partial partition&#8217; in theExplanation&nbsp;to  that provision, there could for the purposes of the Income-tax Act be no  partition and the HUF would continue to be a HUF assessable to tax as if the  property continues to belong to the HUF;<\/u> this is the position which  emerges on a plain reading of section 171 and that too for the limited purposes  of the Act only<strong>.(R B Tunki Sah  Baidyanath Prasad-v-CIT 212 ITR 632 SC)<\/strong> <\/p>\n<p>Before concluding, it would be  appropriate certain decisions of the apex court which are relevant in making  the assessment or computing the income of HUF.<\/p>\n<p>In the case of <strong>Ram Laxman Sugar Mills-v-CIT 66 ITR 613 SC<\/strong>, it has been held that A Hindu undivided family is undoubtedly a  &quot;person&quot; within the meaning of the Indian Income-tax Act : <u>It is  however not a juristic person for all purposes, and cannot enter into an  agreement of partnership with either another undivided family or individual<\/u>.  It is only karta\/manager\/coparcener\/member who can enter into such agreement on  behalf of HUF.<\/p>\n<p>In various cases,  where the karta is partner representing the HUF and salary or commission is  paid to partner, the issue arises whether such salary or commission should be  assessed in the hands of HUF or as personal income of the karta. The test laid  down by the court is whether such payment because of investment in the firm or  as a compensation for the services rendered. In case of former, it will be  assessed as income of HUF while in case of later, it will be assessed as  personal income of karta. This test has been laid down in case <strong>Raj Kumar Singh Hukam Singhji 78 ITR 33.  See also<\/strong> <strong>Prem Nath-vs-CIT 78 ITR 319  SC<\/strong> has been followed in <strong>CIT-vs-Lachhman  Dass Bhatia 162 Taxmann 118 Del.<\/strong><\/p>\n<p><strong><u>Impact of <\/u><\/strong><strong><u>Hindu  Succession (Amendment) Act 2005 on above issues<\/u><\/strong><strong><u> <\/u><\/strong><\/p>\n<p>  <strong>&nbsp;<\/strong>At the outset, it may  be mentioned that section 4 of Hindu Succession  Act 1956 overrides the existing Hindu law in respect of the matters covered by  the provisions of this Act. In other words, the matters covered by the Hindu  Succession Act 1956 will hold the legal position and to that extent Hindu law  will cease to affect. Keeping in view this aspect, let me discuss the impact of  Hindu Succession (Amendment) Act 2005.<\/p>\n<p>  The first relevant amendment is the amendment of  section 6 w.e.f. 9.9.2005. <u>Firstly, it declares that on and from the  commencement of this Act, in the joint family governed by Mitakshra law,  daughter of a coparcener shall, by birth become a coparcener in the same manner  as the son. Consequently, she would have the same rights and subject to same  liabilities as that of a son. <\/u><strong>Thus,  the scope of coparcenary has been enlarged by the Hindu Succession Amendment  Act 2005. <\/strong><u>However, it is to be noted that it not extended  further to next generations of such&nbsp;&nbsp;  daughter. <\/u><\/p>\n<p>  This amendment has a great  impact on the concept of HUF and its treatment under the Income Tax Act. Under  the Hindu law, joint Hindu family must have at least one male  member.(CIT-vs-Sandhya Rani Dutta 248 ITR 201 SC) The court observed: &ldquo;<em><u>The principal question here was the  capacity of Hindu females to form among themselves a HUF. No authorities to  support this were brought to Court&rsquo;s notice; indeed they could not be, for the  concept appears to be alien to the Hindu personal law which requires the  presence of a male for the purposes of the constitution of an HUF.&rdquo;<\/u><\/em><u> <\/u><\/p>\n<p>  After  the amendment in section 6 of Hindu  Succession Act 1956 w.e.f. 9.9.05, the daughter of a coparcener in joint family  is also to be treated as coparcener on the same footing as that of a son. The  discrimination between son and daughter disappears. Therefore, <u>in my opinion<\/u>,  where a family consisting of father, his wife and a daughter existed on 9.9.05  and thereafter father dies then the remaining family of widow and daughter  would constitute HUF and the principle laid down in Sandhya Rani&rsquo;s case (supra)  would not apply. In other words, where HUF, having ancestral property exists as  on 9.9.2005 but subsequently is reduced, on the death of male member, to a  family having female members i.e. wife of the deceased and daughters, the  income from properties of such family would, <strong>in my opinion<\/strong>, will  continue to be assessed in the hands of HUF in view of the decisions of the  apex court in Gowli Buddanna-vs-CIT 60 ITR 293  SC at 296; N V Narendernath-v- CWT 74 ITR 190 SC; the reason being that  daughter of coparcener&nbsp; is also be  considered as coparcener<strong>.<\/strong> <strong><u>&nbsp;<\/u><\/strong>\n  <\/p>\n<p>  <strong>An important question<\/strong> arises whether daughters married before Sep 9, 2005 would become coparceners of  their parental family in view of the said amendment. <strong>In my view<\/strong>, they  cannot be considered as coparceners for the reasons given hereafter. If we read  the amended section 6 carefully, it is clear that it applies only when <u>in  the joint family as on 9.9.05., the female is the daughter of a coparcener.<\/u> That means that both the coparcener as well as daughters of such coparcener  must be the members of such joint family as on 9.9.05. The married daughters,  as per Hindu law, ceased to be members of joint family on the date of marriage  itself and became member of husband&rsquo;s family. Accordingly, <u>in my opinion,  the&nbsp; daughters married before 9.9.05  cannot become coparcener of parental family.<\/u> <u>For the similar reason,  where the coparcener had expired prior to 9.9.2005, the daughter of such person  cannot be treated as coparcener; reason being that member of coparcenery ceased  to be members of the coparcenery on his death as per Hindu law.<\/u><\/p>\n<p><strong>Secondly<\/strong>, under the  amended law, if daughter has become coparcener in the joint family, then&nbsp; <u>such daughter can also act as karta of the  HUF in the absence of senior male member.<\/u> Under the Hindu law, prior to  amendment, the senior member of coparcenary could act as karta. Consequently,  on the death of father, she can act as karta of the family consisting of widow  and daughters of the deceased.&nbsp; <\/p>\n<p>  <strong>Next major impact<\/strong> is that the daughter of coparcener can demand partition of joint  family property where coparcenery consists of two or more coparceners. A family  having single coparcener is not amenable to partition (VVS Natarajan-v-CIT 111  ITR 539 Mad). The reason is that partition presupposes two persons entitled to  partition.<\/p>\n<p>  <strong>The  next major impact<\/strong> is that daughter of  coparcener as on 9.9.2005 shall be deemed to have interest in the coparcenary  property by birth. However, the legislature has saved all the alienations of  properties effected before 20.12.2004 by the proviso to section 6(1).  Consequently, the daughter who has become coparcener cannot challenge the  alienation of any joint family property which had taken place before  20.12.2004.<\/p>\n<p>  <u>However, it is to be noted<\/u>, the Explanation to this section has defined the word  &lsquo;partition&rsquo; as a partition executed by a deed registered under Registration Act  1908 or a partition effected by a decree of the court. In other words, oral  partition or written partition but not registered are outside the scope of such  proviso and consequently, such female coparcener can challenge the alienation  in a court of law. <\/p>\n<p>  <strong>The  next impact<\/strong> is that any property to which  a daughter becomes entitled to by virtue of section 6(1) shall be <u>held as an  incident of coparcenery ownership<\/u> and shall be regarded as property <u>capable  of being disposed of her by testamentary disposition<\/u>. This is contained in  sub section (2) of section 6 and it has an <u>overriding effect<\/u> over other  provisions of the Act. That means that apart from right to demand partition,  she can dispose of her interest in joint family interest by testamentary disposition  without asking for partition. In such situation, according to me, the  quantification of her interest will be done on the basis of value of property  as on the date of such disposition. <\/p>\n<p>  <strong>The next impact<\/strong> is that such  female coparcener shall also be entitled to blend her self-acquired property  with the HUF property by throwing the same common stock. The reason is that  only the coparcener had a right to blend his self-acquired property with the  HUF property by throwing the same common stock.<strong><em> (Mallesappa Bandeppa Desai&nbsp;<\/em>v.&nbsp;<em>Desai  Mallappa&nbsp;<\/em>[1961] 3 SCR 779;  AIR 1961 SC 1268<\/strong><strong>.)&nbsp;<\/strong> Reference can also be made  to the decision of the apex court in&nbsp; the  case of Pushpa Devi 109 ITR 730 where it was held that female member could  throw her self acquired property into common stock of joint family property.  Since daughter is now considered as coparcener, she would eligible to exercise  such right. <u>However, it is to noted that provisions of section 64 of IT Act  61 would be attracted. <\/u><\/p>\n<p>  <strong>The next impact<\/strong> is  that after the commencement of the Hindu Succession (Amd) Act 2005, <u>interest  of coparcener in property on his\/her death shall devolve by testamentary or  intestate succession and not by survivorship<\/u> <u>in view of the amended  provisions of section 6(3<\/u>). It would be appropriate to point out that as  per Hindu law, interest of coparcener, on his death, devolved by survivorship.  This principle continued even after the commencement of Hindu  Succession Act 1956 subject to one exception. The exception was the situation  where the deceased coparcener had left him a female relative specified in class  1 of the Schedule or a male relative specified in that class who claimed  through such female relative. <u>This discussion shows that rule of  survivorship has completely no more is applicable.<\/u><u> <\/u><\/p>\n<p>  \u00a0<strong>Section  6(3) also<\/strong> <strong>creates a legal fiction<\/strong> to the effect that (i) a division of property had taken place as if partition  had taken place on immediately before his\/her death (ii) that daughter had been  allotted a share as is allotted to a son (iii) share of pre-deceased  son\/daughter is allotted to their surviving child and (iv) share of  pre-deceased child of pre-deceased son or daughter is allotted to their child. <strong> <\/strong><\/p>\n<p>  <strong>However, it is to be noted that the  aforesaid amendment does not affect the legal position u\/s 171 of I T Act 1961<\/strong>.  The provisions of section 171 have to be complied with irrespective of the  amendment of section 6 of Hindu  Succession Act 1956. In case of <strong>CIT-vs-Maharani Rajlaxmi Devi 224 ITR 582  SC<\/strong>, the court has held that recording of partition u\/s 171 is necessary  even in case falling u\/s 6 of the HSA. It observed: &ldquo;&nbsp;<u>it must be held that though for the purpose of HUF, <strong>section 6 of the Hindu Succession Act<\/strong>,  would govern the rights of the parties but insofar as income-tax law is  concerned, the matter has to be governed by section 171(1<\/u>).&rdquo;<\/p>\n<p>It is further to be noted that. The  requirement under IT act is that properties have been partitioned by metes and  bound <u>as far as section 171 of the I T Act is concerned, it is not the  requirement that partition must be effected through registered deed<\/u> between  the parties.<strong><\/strong><\/p>\n<p>&nbsp;The major points have been taken care of.  However, some points may have been left inadvertently and the readers may take  their own views or may contact me through <a href=\"mailto:email-kaushalsinghal15@gmail.com\">email-kaushalsinghal15@gmail.com<\/a> <\/p>\n<table width=\"100%\" border=\"1\" cellpadding=\"5\" cellspacing=\"0\" bgcolor=\"#FFFFCC\">\n<tr>\n<td><strong>Disclaimer: <\/strong>The  contents of this document are solely for informational purpose. It does not  constitute professional advice or a formal recommendation. While due care has  been taken in preparing this document, the existence of mistakes and omissions  herein is not ruled out. Neither the author nor itatonline.org and its  affiliates accepts any liabilities for any loss or damage of any kind arising  out of any inaccurate or incomplete information in this document nor for any  actions taken in reliance thereon. No part of this document should be  distributed or copied (except for personal, non-commercial use) without  express written permission of itatonline.org<\/td>\n<\/tr>\n<\/table>\n<p><a name=\"link\" id=\"link\"><\/a><\/p>\n<div class=\"journal2\">\n[download id=&#8221;50&#8243;]\n<\/div>\n<div align=\"center\">\n<div class=\"\"><\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"<p>The law on taxation of HUFs is a complicated branch of legislation and requires expert knowledge of Hindu Law. The author, a former Vice-President of the Tribunal &#038; now a practicing advocate, has carefully analyzed all the important judgements on the subject and explained the nuances and fine points of the law with particular emphasis on the recent amendments to the Hindu Succession Act 1956<\/p>\n<div class=\"read-more\"><a href=\"https:\/\/itatonline.org\/articles_new\/a-treatise-on-the-tax-implications-of-hindu-undivided-family-huf\/\">Read more &#8250;<\/a><\/div>\n<p><!-- end of .read-more --><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[1],"tags":[],"class_list":["post-1592","post","type-post","status-publish","format-standard","hentry","category-articles"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/posts\/1592","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/comments?post=1592"}],"version-history":[{"count":0,"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/posts\/1592\/revisions"}],"wp:attachment":[{"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/media?parent=1592"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/categories?post=1592"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/itatonline.org\/articles_new\/wp-json\/wp\/v2\/tags?post=1592"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}