HUF with only Female Members - Can it done

HUF with only Female Members - Can it done?

by CA. Manoj Jain,B.Com, FCA, ISA (ICAI)

A Hindu widow being the sole surviving member, cannot constitute a HUF. Gangamma Vs. Agl. ITO (1991) 188 ITR 1 (Ker.). 

However, after the Amendment in the Hindu Succession Act, in 2005, a Hindu Widow and her unmarried daughter can constitute a HUF, even when the widow had not adopted a son since, daughter is also a coparcener.

Question:- Whether a person with wife and two daughters only can have HUF?

Answer:- Whether only one male member is suffice to form an HUF is now legally well settled as per decision of Supreme Court in case of Gowli Buddana vs CIT (1966) 60 ITR 293 . An HUF is no different than a joint property. The concept of HUF is very simple codified in Hindu law .A Hindu joint family consists of lineally descended persons -like Great Grand father, Grand father ,father, uncle, son etc. All these persons have right over common ancestral property by birth. The dictum that once Hindu undivided family always Hindu undivided family" has been accepted all along.

The expression `Hindu undivided family' in the Income-tax Act is same as a joint family which may consist of a single male member and widows of deceased male members. In Dr Prakash B Sultane v CIT ([2005] 148 Taxman 353) the Bombay High Court held that that the property does not lose its character merely because at one point of time there was only one male member or one co-parcener.

In this case , the assessee was a doctor by profession assessable in his hands as an individual. The assessee was a member of a bigger Hindu undivided family which was partitioned on January 1, 1972. At the time of partition and right up to January 22, 1980 the assessee was a bachelor. During these years, the income from assets on partition was assessed in his hands as his individual income.

When the assessee got married on January 22, 1980, he claimed that the income from assets received on partition is assessable in status of the Hindu undivided family consisting of himself and his wife.

The Assessing Officer observed that the decisions referred to by the assessee were considered in the judgment of the Madhya Pradesh High Court in CIT v. Vishnukumar Bhaiya (142 I.T.R. 357). Relying upon this judgment, he rejected the application of the assessee and continued to assess his income from the Hindu undivided family property in his individual capacity. In the above case also, the assessee had obtained his share on partition before his marriage and, on his marriage, had claimed the status of Hindu undivided family. His claim was rejected on the ground that "until a son is born the status of the assessee would continue to be that of an individual. However, the High Court ruled otherwise and upheld the contention of the assessee that once HUF property always HUF property"

HUF without Females -A Single male coparcener without a female member does not constitute a HUF. The only way by which a single coparcener can constitute a HUF is to marry a woman. He and his wifewould constitute a HUF. Premkumar Vs. CIT (1980) 121 ITR 347 (All.)

Wife in a HUF: For Example, Mr.A / Mrs.A / Mr.B (Son) / Mr.C Daughter of a HUF, then Mrs. A wife of Mr.A is called a member only and not a coparcener. Hence, she cannot ask for partition but when the property is partitioned, she will get an equal share as that of a coparcener. Wife, not being a coparcener obviously cannot become a karta .

Widow in a HUF – With the passing of the HIndu Succession Act, 1956, widow has been designated as class I heir to male HIndu dying intestate. In case of sole surviving coparcener having only a wife but no issue the widow is entitled to succeed to the entire estate of her deceased husband, if he died intestate. The entire interest of the deceased in coparcenery will be part of the estate passing on the death of such person. Bhariben S. Jhaveri Vs. CED (1999) 238 ITR 995 (Guj.). When a Hindu Widow adopts a male heir, the HUF would be constituted by the Hindu widow along with the adopted son. C. Krishnaprasad Vs. CIT (1974) 97 ITR 493 (SC). After the Hindu Succession Act's amendment in 2005, even widows of predeceased sons are now legally entitled for inheriting the deceased's property even if they had remarried.

Females and Gift:A Female member (Wife) can gift her property so as to constitute it as HUF Property. CIT Vs. M. Balasubramanian (1990) 182 ITR 117 (Mad.)Daughters are now coparceners. Hence, now, they can throw their individual assets into Family Hotch Potch subject to the provisions of Sec.64(2).