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The Hindu Business Line
THE Hindu law has undergone radical transformation in the past 50 years. Old doctrines relating to the concepts of joint family property, coparcenary and survivorship became outdated when the Hindu Succession Act, 1956 modified the rules for inheritance and succession. There are Class I heirs mother being one such and Class II heirs father, among others. Section 30 of the Act protected the right of a Hindu to bequeath any property by will or gift. While earlier a Mitakshara ancestral property could not be made the subject of will,[link widoczny dla zalogowanych], now under the Explanation to Section 30, it is open to a member of a Hindu undivided family (HUF) to will away his undivided interest in the joint family property. Section 6 will apply only if there is no will. Under Section 14, a female heir becomes full owner of property howsoever acquired,[link widoczny dla zalogowanych], and if legally possessed by her,[link widoczny dla zalogowanych], she can dispose of the same by will.
In this case (177 CTR 160 Gujarat), Kanaiyalal had made a will in April 1969 bequeathing his undivided interest in the HUF property upon the HUF consisting of his two sons Jamuna Das and Vipin and his wife Hari Ganga Ben. He directed his executors to give his undivided interest to the HUF as independent owner thereof. He died in February 1971 and so did his wife in 1977. What is the nature of the interest that devolved on the wife and their two sons in 1977? Under Section 3(2) of the Hindu Women's Right to Property Act, 1937,[link widoczny dla zalogowanych], the widow of a member of a HUF steps in the shoes of her husband and her husband's interest in the joint family property would vest immediately upon his death on the widow. The tax department took the view that the wife acquired the rights of her deceased husband in the HUF property in February 1971 and owing to the provisions of Sections 6 and 14 of the Act of 1956,[link widoczny dla zalogowanych], she became the absolute owner of her husband's share in the HUF property.
The Gujarat High Court considered the serious issues involved. As per the settled legal position,[link widoczny dla zalogowanych], and as an embodied in the main part of Section 6,[link widoczny dla zalogowanych], at the time of death of Kanyalal in February 1971, his undivided interest in the HUF property devolved upon the legatee of the will and the legatee was found to be the smaller HUF consisting of the two sons and
the wife. According to the Gujarat High Court, since the undivided interest devolved on the said HUF, Hari Ganga, in her individual capacity,[link widoczny dla zalogowanych], did not inherit any portion of the said undivided interest of Kanyalal in the HUF property. The relevant legislation, which was enforceable in February 1971,[link widoczny dla zalogowanych], was the Act of 1956 and,[link widoczny dla zalogowanych], therefore, the Act of 1937 had no role to play in this case. It was the smaller HUF which inherited the undivided interest of Kanyalal in the HUF property and not Hari Ganga in her individual capacity.
"In this view of the matter",[link widoczny dla zalogowanych], said the Gujarat High Court,[link widoczny dla zalogowanych], "the submission being made on behalf of the Revenue is thoroughly misconceived and calls for no further discussion".
The court also ruled that the interests of Hari Ganga in the smaller HUF at the time of her death cannot be said to be coparcenery interest. A female cannot be a coparcener under the Mitakshara law. Even a widow succeeding, under the Hindu Women's Right to Property Act,[link widoczny dla zalogowanych], to her husband's share cannot be a coparcener.
It is well known that testamentary succession alters statutory succession in a pre-determined way and Section 30 of the Hindu Succession Act comes in handy for effective tax planning. The law used to be that a HUF evolves by survivorship and is not a matter of contract. The Supreme Court ruled that gifts can bring into existence property with the character of HUF property. Blending was another source. Even though a female member cannot throw her separate property into the common hotchpotch of the family, she can, if she so desires,[link widoczny dla zalogowanych], gift it to the family.
Thus,[link widoczny dla zalogowanych], gifts and wills can be made effective use of for bringing into existence HUFs with their own property. The phenomenon of the bigger and the smaller and the still smaller HUF can continue ad infinitum for maximum tax advantage.相关的主题文章：

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