Opinion Of Eminent Legal Luminaries On Controversial Issues

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Hindu succession Act , 1956 – Can husband and wife form an HUF

QUERY: An assessee wants to create a HUF with his wife. Is it possible to create a HUF with gift from the family members?
ANSWER: A Hindu Undivided Family (HUF) is the normal condition of Hindu Society. The HUF with all its incidents is a creature of law and cannot be created by act of parties.
A Hindu Undivided Family is different from a Hindu coparcenary. A Hindu coparcenary is special feature of the Mitakshara School of Hindu Law. It consists exclusively of male members, much narrower than Hindu Undivided Family. A coparcenary includes only those who acquire by birth an interest in the joint or coparcenary property. No coparcenary can commence without a common male ancestor.
The Hindu Succession Act, 1956 has been amended with effect from September 9, 2005 with a view to give daughter on birth equal right as a son on his birth, consequently, the daughter has right to be a coparcener and also a right to claim partition or vest her individual property in the HUF. These are important rights hitherto denied to the daughter
Thus to start an HUF at least two coparceners are required either son or daughter. Therefore only husband and wife cannot create an HUF, unless the property has been received by a coparcener on partition or otherwise. There is no impediment to start a new HUF by gift from family members.
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Credit: Several of the queries and answers are reproduced with permission from the AIFTP Journal. We thank AIFTP for generously allowing us to host their research material.
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