SOLE SURVIVING COPARCENER

A coparcener outliving all other coparcener is known as the sole surviving coparcener. He may be alone in the family or there may be other female member along with him in the family. The nature of property in the hands of such sole surviving coparcener is that of HUF property.

Sole Coparcener without any male or female member

  • SINGLE person CANNOT constitute a family.
  • If ONLY a widow was left in the family after the death of sole male coparcener. It was laid down by the court that the family was brought to an end.
  • If it was not possible to add a male member by nature or by law. [Anant Bhikappa Patil Vs Shankar Rama chandra Patil AIR 1943 PC 196]

Other forms of Sole coparcener

  • Temporary reduction to a single coparcener [Attorney General of Ceylon Vs A.R. ArunachalamChettiar&Ors. (1958) 34 ITR (ED) 42 (PC)]

CANNOT convert the property of undivided family to separate property of the sole coparcener.

  • Sole coparcener with a female member can constitute HUF. [Gowli Buddanna Vs CIT (1966) 60 ITR 293 (SC)]

Effect of Subsequent marriage of sole surviving coparcener and not getting a son

In CIT v. Parshottamdas K. Panchal [2002] 257 ITR 0096 [Gujarat], it was held that:

An individual who receives ancestral property at a partition and who subsequently acquires family, but has no male issue, would hold that property only as the property of the family. Under the Hindu law the wife of the coparcener is certainly a member of the family. Whatever be the school of Hindu law by which a person is governed, the basic concept of a Hindu undivided family in the sense of who can be its members is just the same. Thus, in order to constitute a joint family, it is not always necessary that there must be two male members.

Cases where property before partition was HUF or self acquired property in father’s hands, distinguishable from each other

1. Self acquired property In the hands of father. {Kalyanji Vithaldas & Ors. Vs CIT (1937) 5 ITR 90 (PC)}

–    it’s NOT a joint family property

2. HUF property in the hands of father. {Attorney General of Ceylon Vs A.R. Arunachalam Chettiar & Ors. (1958) 34 ITR (ED) 42 (PC)}

–  it’s a joint family Property

Powers of Sole coparcener

– Sole coparcener can dispose of the coparcenary property as it were his separate property, he can sell or mortgage it or gift of it. {CIT Vs Anil J. Chinai (1984) 148 ITR 3 (Bom)}

– Sole coparcener can settle property as he likes. {Anil Kumar B. Laskari Vs CIT (1983) 142 ITR 831 (Guj)}

– Sole Coparcener cannot make partition of property nor he grants share. {B.T. Ravindranath Punja Vs CIT (1989) 179 ITR 243 (Kar.)}

– Sole coparcener can make valid gift of immovable property. {CIT Vs Admiralty Flats Motel (1982) 133 ITR 895 (Mad)}

(Source – Book on Practical Aspects of Tax Audit, TDS, HUF & Capital Gains  written by CA Agarwal Sanjay ‘Voice of CA’ & Team)

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