The HUF and Hindu Coparcenray terms are quite confusing for tax payers and students of fiscal law.The confusion grows more because tax professionals have to deal with HUF and various forms of Hindu family groups despite the fact that Income Tax Act itself does not define Hindu Undivided Family.
Rajasthan High Court in WTO vs Durlabhlal Sewalal (2001) 71 TTJ NULL 20 has defined what a Hindu Coparcenary is and how it is different from a Hindu Undivided Family . The Hon’ble HC says in Para 10
“Under the Mitakshara School of Hindu Law there are two distinct concepts being of (i) “A Joint Hindu family” and (ii) “A Hindu coparcenary”. So far as the concept of “Joint Hindu family” or an “HUF” under Hindu Law is concerned, it simply means a Hindu family consisting of all persons lineally descended from a common male ancestor together with their wives and unmarried daughters. Thus, the term “Family” signifies group of people or plurality of members mutually related by blood or by marriage or by adoption. Neither is it necessary that there must be two existing male members to constitute a Hindu joint family nor is it necessary that there must be at least one existing male member in the family to constitute
A Hindu coparcenary” is still a narrower term than a Hindu joint family. A Hindu coparcenary, under Mitakshara School of Hindu Law, consists of a common male ancestor together with his lineal descendants in the male line within three generations (degrees) next to him or within four generations/degrees inclusive of such ancestor, in unbroken line of male descent. No coparcenary can commence without, a common male ancestor, though after his death, it may consist of collaterals like brothers, uncles and nephews, cousins, etc. Thus, a Hindu coparcenary will include a common male ancestor, his sons, his grandsons and his great-grandsons. These male persons, three generations next to the holder of joint/coparcenary property are coparceners or the members of Hindu coparcenary (under Mitakshara School) and they acquire by birth an interest in the coparcenary property. A coparcener has a right to enforce partition of coparcenary property.
Supreme Court : 6 Essential Characteristics of Hindu Coparcenary
In CED v. Alladi Kuppuswamy 108 ITR 439 (SC), the Apex Court has held that Hindu coparcenary has six essential characteristics, namely :
- (1) that the lineal male descendants up to the third generation acquire an independent right of ownership by birth and not as representing their ancestors;
- (2) that the members of the coparcenary have the right to work out their rights by demanding partition;
- (3) that until partition, each member has got ownership extending over the entire property conjointly with the rest and so long as no partition takes place, it is difficult for any coparcener to predicate the share which he might receive;
- (4) that as a result of such co-ownership the possession and enjoyment of the property is common;
- (5) that there can be no alienation of the property without the concurrence of the other coparceners unless it is to be for legal necessity; and
- (6) that the interest of a deceased member lapses on his death and merges in the coparcenary property.
It should be noted that the last characteristic is subject to the provisions of the Hindu Succession Act, 1956 which assumes a notional partition if a Hindu Coparcener governed by the Mitakshara School of Law dies intestate and is survived by a female relative in Class I.
So, Hindu coparcenary is certainly narrower and different than a HUF. Why do’nt you take a test on HUF quiz