Can my mother who is not a coparcener be karta in HUF

The following article was first published in the Mint newspaper on 25th May, 2022. The same was written by our Private Client team at Cyril Amarchand Mangaldas, who frequently publish their comments and opinions in the Mint. The online version of the article can be found here.

My father, who was the karta of our HUF (Hindu undivided family), with my mother, elder sister and I as members, died two years ago. Thereafter, the bank where the HUF account is held is insisting on transferring it only to my elder sister.

Under the circumstances, is there any possibility for my mother to become the karta of the HUF? What is the relevant legal section that needs to be quoted for necessitating a transfer to my mother’s name? Additionally, will there be a change in the PAN (permanent account number)  after transfer of the HUF? Will it also lead to a change in the name of the HUF? 

—Name withheld on request 

Your query infers that your father had established the HUF and the children (i.e. elder sister and you) are coparceners. In this case, your mother would be a member of the HUF and not a coparcener. Given that your mother does not qualify as a coparcener, she cannot become the karta of the HUF.

Further, in the case of Sujata Sharma vs Shri Manu Gupta & Ors, the Delhi High Court held that an eldest female member of a family, being the co-parcener in HUF, may become its karta. Hence, the bank would be insisting on your elder sister becoming the karta of the HUF instead of your mother.

We assume that the query refers to whether the change in karta of the HUF warrants a change of the PAN of such HUF. The PAN of the HUF is permanent and will not change on account of any change in the karta or coparceners. As regards the name of the HUF, the same also does not change on account of any change in the karta or coparceners.

Can a divorcee and her adult son who is unmarried form an HUF?

—Name withheld on request 

This seems unlikely in India at the moment. It would be worth exploring with your attorney, including the rationale for using a HUF e.g. is it just to hold property collectively? Other options like Trusts or LLPs might be more feasible, depending on your objectives.

My father had bequeathed me a house in 2009. However, there are three other legal heirs to the house. I have been trying to contact them for a long time so that I can transfer the house in my name but they are not responding. Will it help if I publish a legal notice in any leading newspaper for one month and thereafter take action to transfer the  house in my name?

—Name withheld on request

There is no mention in your query as to where the Will was made and where the house is situated. As per the Indian Succession Act, 1925 (ISA), if a Will is made in Kolkata, Chennai or Mumbai or deals with immovable property in Kolkata, Chennai or Mumbai, then a probate of such a will is required.  Your query also does not specify whether the house is bequeathed to all three heirs, or only to you (to the exclusion of the other two heirs). It may be inferred that the property is left to all three of you (we assume equally), and that you are seeking that it is transferred only to you.

Assuming that probate is required, the executor (as named in the Will) will need to complete the said process and title will flow to each of the said heirs under the probate.

Post the completion of the probate, the other heirs can execute a duly stamped and registered transfer deed in your favour. You may also speak to your counsel and see if the said heirs would be willing to relinquish their title at the probate stage itself, and hence the property could be transferred directly to you in one step.

Just putting your notice in the newspaper without completing the other required formalities will not help you get the house transferred.