We have seen that in order to constitute a HUF under the Hindu law, plurality of coparceners is necessary. Thus, where the family consists of only Husband and wife, an interesting question arises whether unborn child in the womb of mother along with Husband and wife can constitute a valid HUF. A similar question arose in the case of T.S. Srinivasan vs CIT (1966) 60 ITR 36. In this case, it was argied that under the Hindu Law, a son conceived has the same rights of property as a living son and therefore, HUF status should be granted from the time the son was conceived. However, the Apex Court afte?a detailed reasoning held that for the purposes of income-tax Act unless the son comes into existence, it is difficult to recognize the status of HUF notwithstanding the fact that the Hindu Law recognizes rights of an unborn son or son in the womb.
It is important to note that the case herein dealt with the case of unborn son, however in view of the amendments in the Hindu Succession Act,
the case would equally apply to unborn daughters or daughters in the womb. Moreover, the case may even require reconsideration since the said judgement was given in view of the fact that till the time a child is born, it is not possible to say whether the child would be a son or a daughter.
Thus, in view of the above, as soon as a son/daughter is born, an individual can claim status of HUf in respect of the properties which is received by him on partition of HUF of which he is a member.
In case of a HUF which is formed in such a manner, a Declaration / Affidavit can be affirmed to act as the document for creation of the HUF and the draft of the declaration/affidavit is given herein below:-