Formation of HUF On Intestate Death of a Hindu Father

 

On the death of a Hindu father who dies intestate (without making a wilt) leaving ancestral movable and immovable assets; the ancestral assets so left are thereupon inherited by the heirs of the Hindu father and the person so inheriting the ancestral assets can with the help of the assets so received form a HUF by treating the assets so received as the Corpus of the HUF. Any ancestral property received on death or partition would be HUF property in the hands of the male recipient. Once properties are received as Corpus of the HUF, the best way would be to affirm the above facts on an affidavit so that the intention of the person to this effect is confirmed.

In the case of CIT vs Nandlal Agarwal (1966) 59 ITR 758, the Apex court was confronted with a situation where a person belonging to Mitakshara school of Hindu Law died intestate leaving his widow and two minors. After the death of the person, a business was left behind and two Guardians were appointed. In the meantime, the widow also died and two minors were held to constitute a joint Hindu family and the income from the business left behind was held to be joint family income assessable as Income from business belonging to family.


A draft of such an affidavit is as follows:

 

AFFIDAVIT

I, CDR, son of Late DDR residing at Chowringhee Road, Kolkata-700 071 do hereby so’emnly affirm and declare as follows: -

1. That my father .DDR died instate on 12th August, 2011 leaving behind certain properties as listed in the annexure.

2. That out of the said properties, the property at Chowringhee Road, Kolkata-700 071 was acquired by him by way of inheritance from my grandfather and was ancestral property.

3. That upon death of my father, I along with my wife, my sister, my son and my mother have become entitled to the said property at Chowringhee Road as per the provisions of the Hindu Succession Act, 1956.

4. That the said ancestral property has devolved on the HUF consisting of myself, my mother, wife, sister, son etc.

5. That my wife, my son, my mother and my sister have signed this affidavit as a witness to the facts as aforesaid and as an acceptance of the said facts.

6. That the Statements made hereinabove are true to the best of my knowledge and belief and nothing is false.


Declared at Kolkata
This 21/04/2014
Witness and confirmatories
1.
2.
3.                                                                                                                                                     (CDR)

                                           DECLARANT.

   

 In this regard following precautions must be taken:

1.         The HUF must be capable of being formed i.e., it must consist of more than one member.

2.         The declaration should be properly worded to indicate that it is proposed to inherit the property to HUF.

3.         The Stamp paper should be of requisite value.

4.         The Stamp paper should not be stale.

5.         The name in which stamp paper is purchased is proper i.e., either it is in the name of the HUF, or in the name of the declarant or if is in the name of an Advocate, that Advocate must sign the declaration as a Witness.

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