Supreme court judgement on s-8 of hsa 1956

This query is : Resolved 
 


Querist : Anonymous (Querist)
06 January 2012

Dear Experts, Please refer to the below Four numbers Supreme Court JUDGMENT :-

1. COMMISSIONER OF WEALTH TAX. KANPUR Vs. CHANDER SEN , DATE OF JUDGMENT:-16/07/1986
2. Yudhishter Vs. Ashok Kumar, DATE OF JUDGMENT: 11.12.1986
3. Makhan Singh (D) Vs. Kulwant Singh, DATE OF JUDGMENT: 30/03/2007
4. Bhanwar Singh Vs. Puran & Ors , DATE OF JUDGMENT: 12/02/2008

All the above Supreme Court JUDGMENT states that the property inherited under Section -8 of HSA1956 is the personal property and it is not the HUF or coparcenary property/Ancestral property. If it is so, then which property will be treated as ancestral property ,as all we know that the property purchased by ancestors should be ancestral ?

REGARDS
GAURAV


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raj kumar makkad (Expert)
06 January 2012

You should first be assured about the definition of ancestral property only then these authorities can be got discussed in detail.

It shall be better if you post here the meaning of ancestral property as per your views. I am waiting from your side though this is not an academic section of this site.



Guest (Expert)
07 January 2012

There is basically difference between ancestral and self acquired ancestral property. Mr. author kindly make your self clarified the difference of ancestral property and assuming ancestral property. nowadays purchasing of property (family or individual rests upon the mode of acquisition)is based upon the legal opinion.


Querist : Anonymous (Querist)
07 January 2012

Respected Raj Kumar MAKKAD Sir,I am Very Lucky that Top most Expert of this site has initiate interest to reply of my Query and I am very thankful to your goodself from the depth of my heart for this.
Although I am not Lawyer nor Law Student but I am very much interested in this topic by this or that reason. I am daily visitor of this site like as we read daily newspaper .
Sir, I am talking about that ancestral/Coparcenary property in which the son/daughter has birth right share as per HSA 1956/2005(amended). As we know that we can be the owner of any property by two method. One method I can get the property by purchase from my own earning and it will be called “self acquired property”. The second method of owning the property is by way of inheritance from my father and as per the Section -8 of HSA 1956 this property is also my personal property (as per the above referred judgement of Supreme court) means it is also not coparcenary/ancestral property.
My question is:- If both type is not coparcenary/ancestral property then which property will be treated as coparcenary/ancestral property in which the the son/daughter has birth right share as per HSA 1956/2005(amended).

prabhakar singh (Expert)
07 January 2012

In order to determine a person’s share in Hindu ancestral property, three sources of law have to be understood – 1) Old Hindu law 2) The Hindu Succession Act, 1956 and 3) Judicial decisions.

A joint hindu family is a greater body [comprising females also] than a coparcenary and need not own any property.

Any property created by father ,grand father,how high soever would be called ancestral property but all shall not form mitakshra coparcenary.

A mitakshra coparcenary is a much narrow legal concept in its origin comprising of males only and it lays that when A acquired a property which was inherited by his son B to whom C is born as son,D is born as grand son,and E is born as great grand son,then the property in hands of B would be a coparcenary in which C,D,E have equal interest by birth along with B by rule of survivorship.The amendment made in 2005 has removed the gender biased treating daughters,grand daughters ,and great grand daughters also as if they were born as males in those degrees.

But when any such a coparcener dies intestate his interest in coparcenary is to further proceed as per Hindu Succession Act 1956,and not by old hindu law.

HUF in Income Tax law is different for tax purposes :. The income tax law is a separate class by itself and simply assesses the income of a family which has declared itself as a HUF, which could even consist of a father, wife and daughter and which need not necessarily own property.



We can not talk of a coparcenary unless there is an inherited property in hands of holder who has a son/grand son/great grand son,and here it stops no great great grand son,even born would be a coparcener.

What is not ancestral property ?????????????

Properties inherited from mother, grandmother, uncle and even brother is not ancestral property. Property inherited by will and gift are not ancestral properties. Self acquired property on the other hand can become ancestral property only if it is thrown into the pool of ancestral properties and enjoyed in common. This is a matter to be determined on the facts and circumstances of the case.




Deepak Nair (Expert)
07 January 2012

Dear Prabhakar Sir,
Kindly accept thanks from me too for such a detailed reply, so that it could deepen my regarding this subject.

Dear querist, great to come up with such a query.


Querist : Anonymous (Querist)
07 January 2012

Dear Prabhakar Sir,Kindly accept thanks from me too for such a detailed reply.But confusion is regarding the S.C.Judgement on S-8, of HSA1956. Let us discuss an Example:-
Suppose "A" purchased Property.After his death intestate the property goes to his son "B" as per S-8, of HSA1956 and after death of "B"intestate the property goes to his son "C". After death of "C" intestate the property goes to his son "D" and so on to E,F,G..... as per S-8, of HSA1956 each will be the absolute owner of the property as per S.C.Judgement.If it is so,then the property will never be treated as Ancestral.
Your comments is required on the above example?

raj kumar makkad (Expert)
07 January 2012

Dear querist! It is very good for me to know that instead of adopting any offending view, you have shown your adoptive mind. I also feel sorry if I have offended you.

So far as reply of prabhakar singh is concerned, I fully agree so far as definitions and legal position has been produced.

So far as your subsequent query is concerned, I again bring your kind attention towards the fact that the Property inherited upto 4 generations of male lineage (i.e., father, grand father, etc.) is called as ancestral property. The right to a share in such a property accrues by birth itself, unlike other forms of inheritance, where inheritance opens only on the death of the owner. The rights in ancestral property are determined per stripes and not per capita. This means that the share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor. The mentioned judgment has not jumped into this aspect and this procedure is still intact.

I think your query is very well resolved now. I again withdraw my words which might have pained you.

prabhakar singh (Expert)
07 January 2012

you kindly refer to judgement you ae talking about??? although I am offending for which I beg pardon of other Experts.


Querist : Anonymous (Querist)
07 January 2012

Dear Prabhakar Sir,kindly refer to S.C.judgement below:-
1. COMMISSIONER OF WEALTH TAX. KANPUR Vs. CHANDER SEN , DATE OF JUDGMENT:-16/07/1986
2. Yudhishter Vs. Ashok Kumar, DATE OF JUDGMENT: 11.12.1986
3. Makhan Singh (D) Vs. Kulwant Singh, DATE OF JUDGMENT: 30/03/2007
4. Bhanwar Singh Vs. Puran & Ors , DATE OF JUDGMENT: 12/02/2008

Devajyoti Barman (Expert)
Click to Talk
07 January 2012

Agreed as above...



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