My father passed away in 2014. His HUF is the owner of our home. My mother, one married sister, one widowed sister and I are in Delhi. Now I desire that our home should be in my name for ease of succession. Also, another real estate asset lies in the name of my HUF. Can my HUF gift this asset to my wife? I eventually want to dissolve my own HUF.
—Name withhold on request
Marylou Bilawala
Pursuant to the amendment in the Hindu Succession Act, 1956 (“Act"), in 2005, read with the Supreme Court judgment in the case of Prakash and Ors versus Phulavati and Ors, a daughter would be considered to be a coparcener and entitled to the same rights in the coparcenary property as that of a son, if she and her father were alive as of 9 September 2005. Since your father passed away in 2014 and both your sisters are alive, they would also be coparceners in your father’s HUF. Further, your daughters would also be coparceners in your father’s HUF.
So, if the home is the property of your father’s HUF, it would remain the property of the HUF. It would, however, be possible for you to bequeath your undivided share in your father’s HUF to your wife and two daughters by executing a Will. If you wish to dissolve your father’s HUF, you may do so by a partition of the HUF where the coparceners and members would be entitled to a share. Alternatively, other co-parceners and members can execute deeds of release of their undivided share in your favour, and then you would be entitled to the house as self-acquired property.
Stamp duty will be payable on the partition and release deeds when executed. In Delhi, stamp duty on partition is 2% (on the largest share remaining after the property is partitioned or, if there are two or more shares of equal value and not smaller than any of the other shares, then one of such equal shares shall be deemed to be that from which the other shares are separated) and stamp duty on a release deed is ₹100.
In the case of your HUF, please note that some courts have set aside gifts of immovable property made by a husband to his wife particularly where the extent of the gift is not reasonable (having regard to the extent of the property) and has been made for non-pious purpose (except with the consent of all the co-parceners) (see: AIR 1967 SC 569; (1986) 51C TR(Bom)286). However, it may be noted that where the coparceners are minors at the time of the transfer, they could also challenge the gift or transfer when they attain majority on the basis that the gift or transfer was not in their interest.
In order to dissolve your HUF, you may consider following the same approach as set out above.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.
