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Huf partition

SHAHNH (Professional) (99 Points)

28 May 2018  
My father had formed an HUF in year 1977. Now he has fully partitioned through a deed duly registered in year 2013-14. The proceeds of it have been divided to my father & mother. We are myself (Son) married and my 2 elder Sisters married before 1994. Do they need any NOC from me or the Sisters to get the Flat transferred in our parents name as per the deed , as the secretary is not accepting it and asking for NOC from all family members. Please advice . Thanks

 10 Replies

Dhirajlal Rambhia (SEO Sai Gr. Hosp.) (107432 Points)
Replied 28 May 2018

Though Karta of HUF has power to partition HUF, but the distribution of assets should be equally distributed among existing members. In your case it is not proportionate and always challengeable. Hence the secreatery (may be through society's legal advisor) is right in asking NOC/consent from all the members of the partitioned HUF, unless the same were individually attested in the partition deed.

SHAHNH (Professional) (99 Points)
Replied 28 May 2018

Thanks a lot Sir for a quick revert. The names of members I.e.: Son & 2 Sisters have been mentioned in the Registered Partnership Deed but not Signed by them. The deed is prepared by a very senior CA & endorsed / approved by Advocate of High Court by his seals. Also we got a Certificate from CA mentioning very clearly that no Signatures are needed, inspite of that the Secretary has raised demand for NOC

Dhirajlal Rambhia (SEO Sai Gr. Hosp.) (107432 Points)
Replied 28 May 2018

First of all its 'Partition Deed' & not 'Partnership Deed'.

CA is correct in a way that partition of HUF is complete........ Or HUF doesn't exist any more.....

But it is HUF property and not self earned !!!

As the distribution was not equal........ and all members of HUF had not given consent for release of their individual claim over the distributed assets ...........

So,  unless the remaining members give 'no claim consent' or NOC to sociery, society cannot take legal reponsibity over their head......  (Moreover, any objection might have been raised by any HUF member with society)

SHAHNH (Professional) (99 Points)
Replied 28 May 2018

Thanks. Yes Partition Deed - typo error. I enquired from CA that he gave a certificate stating that signatures of other members not required in the Deed stating that there had been a case in High Court in the year 2012 in which the Bombay High Court held that only the daughters born after 1.9.2005 have the right in HUF partition . He had formulated it in 2013 on the basis of that recent most Judgement in the case of Vaishali S. Ganorkar & others v. Satish Keshavrao Ganorkar & others,....which was reported in AIR Bom 101 - 2012 and his letter and deed were endorsed by opinion of advocate of High Court. Please advice

Dhirajlal Rambhia (SEO Sai Gr. Hosp.) (107432 Points)
Replied 28 May 2018

A Full Bench of the Bombay High Court comprising Mohit Shah C.J, M. S Sanklecha  and M.S Sonak, JJ,  delivered a noteworthy judgment on daughter’s right to  ancestral property in a joint HUF on 14th August, 2014. The Bench was constituted on a reference by Single Judge R.G. Ketkar J. who doubted the correctness of the decision of the Division Bench in the case of Vaishali S. Ganorkar & others v. Satish Keshavrao Ganorkar & others,...
Prior to the enactment of the Hindu Succession (Amendment) Act, 2005 (hereinafter the Amendment Act), the Hindu Succession Act, 1956 (hereinafter the Principal Act) did not provide any rights to daughters in respect of partition of property or the right to demand partition or claim shares in the coparcenary property. A coparcener is a person who has equal rights in the undivided property of a HUF. The Amendment Act now entitles women to an interest in the HUF property by amending Section 6 of the Principal Act and makes a daughter a coparcener in her own right, thereby upholding the fundamental right to equality and non discrimination on the basis of gender enshrined in the Constitution...

In the current case the point of contention was not, therefore, whether daughters are also entitled to an interest in the HUF property like their male counterparts, which has been duly settled, but whether the Amendment Act has a prospective or retrospective effect, the determination of which will have a direct bearing on the controversial issue of whether daughters born before 2005 are also entitled to be coparceners in their own right in the same way that daughters born on or after 9 Sept 2005 are now entitled....

The Court, to mete out justice, resorted to the application of an intermediary category known as ‘Retroactive Statute’ which does not operate backwards and does not take away vested rights, but successfully provides rights to those daughters who are alive at the time of the Amendment Act, irrespective of whether they were born before or after 2005. In case the coparcener has died before 2005, then the pre-amended law is applicable but by passing of the Amendment Act, all daughters who are alive ipso facto become coparceners, thus settling the interpretation of the amended Section 6. “The only requirement is that when an Act is being sought to be applied, the person concerned must be in existence/living. The Parliament has specifically used the word ‘on and from the commencement of Hindu Succession (Amendment) Act, 2005’ so as to ensure that rights which are already settled are not disturbed by virtue of person claiming as an heir to a daughter who had passed away before the Amendment Act came into force.”, the Court said....

Refer the case.......... https://indiankanoon.org/doc/147510934/

SHAHNH (Professional) (99 Points)
Replied 28 May 2018

Thanks for your inputs. But the point here made by CA is he formulated the Deed by following the latest provisions of the case in 2012 by Bombay High Court and executed our partition Deed in the year 2013 by duly registering it and was also acknowledged by the Stamp Registration department duly endorsed by Advocate of High Court. The case you have put forward is of the year 2014 in which the verdict given was after our deed got executed - 2013. Now what will be the remedy. Please reply.

Dhirajlal Rambhia (SEO Sai Gr. Hosp.) (107432 Points)
Replied 29 May 2018

Yes, he tried his best what was available in 2013, but against exact interpretation of law .... and the same was rectified in 2014........ affecting your partition. Present ruling is as per the High court's interpretation of 2014.

As such ask him to suggest alternative......as that mode will not work.... or get consent from your sisters.....

SHAHNH (Professional) (99 Points)
Replied 29 May 2018

Thank you! Yes ... he formulated the deed as per the then present ruling in 2013 as per the then verdict of Bombay High Court and he got the Deed duly registered which he got endorsed by a senior advocate of Bombay High Court by his seals. He has now no any alternative as he did his best following all the norms for execution and was not a gimmick.

Dhirajlal Rambhia (SEO Sai Gr. Hosp.) (107432 Points)
Replied 29 May 2018

When he has solved the issue, matter gets resolved........

Good luck.....

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SHAHNH (Professional) (99 Points)
Replied 29 May 2018

Thanks a lot Sir!
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