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My mother is a widow. My father expired 10 years ago. We are two (major) sons and a married daughter. We brothers have created a HUF with an initial capital of 50,000 received as a gift in marriage. Can my mother create a HUF being a karta and we two sons as coparcener?

-Pinrani

Hindu Undivided Family (HUF) comprises all persons forming part of one lineal family branch and having a common ancestor. It includes father, mother, sons, their wives (daughters-in-law) and daughters –these parties each have a different bundle of rights.

The father of the family, if alive, or in his absence, the senior-most male member of the family is entitled and presumed to manage the HUF and is known as the ‘karta’ of the HUF. 

In the absence of a senior male member of the family, the Delhi High Court has ruled that the eldest female coparcener can be karta of the HUF [Sujata Sharma vs. Manu Gupta (CS (OS) No 2011/2006)]. However, only a coparcener can become the karta. A spouse/wife of a coparcener (or a karta) is only a ‘member’ (who has limited rights and no ownership of the underlying property at birth) and does not qualify to become a coparcener. Only in exceptional cases where the male members are minors and in the absence of a karta, their mother, as a guardian can represent the HUF for assessment and recovery of tax.

In your case, between you and your brother, if a new HUF is desired to be set up, the eldest son will be the karta of the HUF and not your mother. On a separate note, it is worth questioning why a HUF would be required, as they are not common or desirable in the modern estate planning context. Please speak to an attorney and explore the use of a trust instead, where you can make your mother a trustee.

Rishabh Shroff is partner, Cyril Amarchand Mangaldas. Queries and views at mintmoney@livemint.com

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