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Partial partition prior to Hindu succession law

There was a partial partition in a Hindu Undivided Family before December 31, 1978. The partial partition was recognised under the Income-tax Act.

At the time of partial partition, the HUF (normally identified as bigger/major HUF) consisted of Karta, wife, a son (S1) and a daughter (D1). In respect of the share received on partial partition by the Karta, he is assessed in the status of a Hindu Undivided Family (normally identified as small/minor HUF) consisting of Karta and wife. Please note that no property or amount was given to daughter (D1) at the time of partial partition.

After partial partition, another son (S2) and another daughter (D2) were born. Please advise on the rights of daughters (D1 and D2) in both the HUFs (bigger/major and small/minor) after the recent amendment of the Hindu Succession Act.

The amendment to the Hindu Succession Act does not have any effect on partition and partial partition prior to the date on which the present amendment came into effect. The creation of a larger HUF and a minor HUF as a result of partial partition is recognised under the Hindu Law and recognised for income-tax purpose only if it had occurred before December 31, 1978. The income-tax law will have to follow the effect of the amended law without any change in the status of both larger and smaller families in the facts of the reader's case. There is addition of a son and a daughter, so that both children born after the partial partition will automatically become members of both the larger HUF and the father's smaller HUF. In the other case, the smaller HUF, which had initially only a Karta and his wife on partition with the other co-parceners at the relevant time, will have the son or daughter subsequently born after the partial partition, since both of them will be acquiring rights of a coparcener over the assets of the smaller HUF. They will also be members of the larger HUF having equal right with their brother and sister born before the partial partition.

The son, who had already got partially partitioned, will not have coparcener's right in the smaller joint family, but the daughter prior to partition continues as a member of the smaller and the larger family as she could not have left the family on partial partition, since she had only maintenance right over the joint family property at the relevant time. The daughter and son born later will therefore have a right to partition and equal share in both the smaller family and the larger joint family.

S. RAJARATNAM

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