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Gourang M Haldipur   21 June 2018

Determination of a bungalow as huf property.

Dea Sirs, This is a query pertaining to HUF properties of my lawyer who was the Senior most advocate at the Bar at the time of his passing away about 10 years ago. The brief facts of the case are that after his death, he left behind him the following legal heirs.

1. His wife. 2. 2 married daughters. 3. 1 unmarried daughter. 4. 2 unmarried sons. 5. 1 widowed daughter in law (issueless). The deceased advocate had purchased a bungalow belonging to my relative in 1963 for a consideration of Rs.16000=00 by account payee cheque. He had purchased the said bungalow in the name of his wife, because if he had purchased it in his name, it would have come under the provisions of the then prevailing Urban Land Ceiling Act. He filed his income tax returns and in that return he made a declaration that he had purchased the bungalow out of his own funds in the name of his wife on account of the above reason. The I.T.O. did not accept his return. He added the sum of Rs.16000=00 to his return of income and directed him to pay the tax, which he accordingly did.

The 2 unmarried sons and their 2 married sisters filed a suit for partition against rest of the family members for partition of their's father's properties including the bungalow purchased in the name of his wife. In support of their claim, they produced the certified copy of the I.T.O's order and the declaration given by the late advocate.

During the pendency of the suit, the unmarried daughter ( a doctor) who appears to be mischievous element got the bungalow gifted in her name from her mother, who is a innocent uneducated lady of 80 years (now deceased). Immediately thereafter, the unmarried daughter on the strength of the gift deed executed an agreement of sale in respect of that bungalow to a stranger. This stranger took the power of attorney of all the defendants and led evidence on behalf of the defendants in the partition suit. The trial court in its judgement held that the order of the I.T.O. could not be considered as tangible evidence only because the I.T.O. had not accepted the return of income. Though the late advocate's wife came from a poor family and no concrete evidence was lead to show that she had the resources to purchase the bungalow being a housewife, the court erroneously held that it is her exclusive property.

The stranger based on the agreement of sale, has now filed a suit for specific performance against the unmarried sister. This lady has appeared in the matter through her advocate but has not filed her written statment. The court has taken her W.S. as not filed.

Query: 1) Whether the 2 unmarried brothers along with their 2 married sisters can filed an application to be impleaded in the suit for specific performance on the ground that they have a share in the bungalow.

2) What is the ground that they have to take in the first appeal to prove that the house in fact belonged to their father.

The late advocate owned several other properties which were admittedly joint properties.



Learning

 5 Replies

R.Ramachandran (Advocate)     21 June 2018

So, according to you, that was the only I.T. Return or the last I,T. return the deceased Advocate filed.  He did not file any return at all thereafter. Is it so?

Whether the bunglow in question was rented out?  If so, how was the rental income accounted for?  In whose I.T. return?

Assuming (in fact there is no doubt about it) that the money belonged to the Advocate - cannot he buy a property for the benefit of his wife?  On what basis such a property will become HUF property, without specific declaration to this effect by the Advocate to this effect?

1 Like

Gourang M Haldipur   21 June 2018

Kindly read my modified message. Thank u.

Kumar Doab (FIN)     21 June 2018

The term used by you in query is HUF that implies all involved from family of deceased advocate are Hindu.

What is modification in your message?

What is your modified message?

1 Like

Gourang M Haldipur   22 June 2018

Sir- The property was purchased in the year 1963. He died about 10 years ago. Being a Senior Advocate, I believe he must have filed returns even thereafter.

The bungalow was not rented out. It was occupied by the Advocate and his family members.

It is true that the Advocate could not have purchased the property in his wife's name. I am told that the Advocate had given a declaration to the Collector, Dharwad. that the said property must be treated HUF property.

Gourang M Haldipur   22 June 2018

Sir- You are correct that all the members of the advocate's family are Hindus.

Modified message means the detailed facts of the case messaged by me.


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