Case Study: Vineeta Sharma v. Rakesh Sharma & Ors.

By Nishant Singh Rawat 13 Minutes Read

“Amended Section 6 of Hindu Succession Act, 1956 act retroactively and does not require father of the coparcener daughter to be alive at the time of coming of the Hindu Succession (Amendment) Act, 2005.”

Citation: Civil Appeal No. Diary No. 32601 of 2018

Date of Judgement: 11^th August, 2020

Bench: Arun Mishra (J), S. Abdul Nazeer (J), M. R. Shah (J)

Facts:

• The question was regarding the interpretation of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 due to conflicting verdicts in two Division Bench judgements in Prakash & Ors. v. Phulavati & Ors.[1] and Danamma @ Suman Surpur & Anr. v. Amar & Ors.[2]
• In Prakash v. Phulavati, it was held that Section 6 cannot operate retrospectively and applies only when both coparceners and his daughter were alive on the date of commencement of Amendment Act, i.e., on 9^th September, 2005. Further, the partition should be a registration one according to explanation to Section 6(5).
• In Danamma case, court held that the amended Section 6 provide full right to a daughter coparcener. Condition of a living daughter of a living coparcener at the time of coming of amendment is not required.

Decision of the Apex Court:

Court while overruling the Prakash v. Phulavati case and partly overruling the Danamma case held the following:

• Amendment Act, 2005 gives the daughter born before or after the amendment, the status of coparcener in equal terms with son.
• Rights can be claimed by daughter born earlier with effect from 9^th September, 2005 under Section 6(1) as against disposition or alienation, partition or testamentary disposition which had taken place before 20^th December, 2004, i.e., Section 6 could be retroactively applied.
• It is not required that father of coparcener daughter should be alive on 9^th September, 2005 as right in coparcenary is by birth.
• Plea of oral partition cannot be accepted under Explanation to Sec 6(5) of the Amendment Act, 2005. However, in exceptional cases, where it is supported by public documents, it may be accepted.

Key law positions established in the case:

• Whether partition should be a registered one as provided under Explanation to Section 6(5)?

Yes

Explanation was not in the original Amendment Bill that was moved before Rajya Sabha on 20^th December, 2004 and was later on added. The intention was to properly define partition so as not to leave any confusion that could defeat the rights of coparcener conferred upon daughters by the Amendment Act, 2005.

There is always a possibility that a plea of oral partition may be set up, fraudulently or based on unregistered memorandum of partition which may be created at any point of time. Therefore, such kind of partition is not recognized under Section 6(5). Earlier, oral partition was recognised. The purpose of legislature behind amending it is clearly to accept only genuine partitions.

The expression used in Explanation to Section 6(5) ‘partition effected by a decree of a court’ means giving final effect to actual partition by passing the final decree. A preliminary decree declares share but does not affect the actual partition, which is only affected by passing of a final decree.

• Whether Section 6 has brought uncertainty?

No

Uncertainty is not brought by the provisions of Section 6 as the law of Mitakshara coparcenary makes the share of surviving coparceners uncertain till actual partition takes place. Uncertainty in the right of share in a Mitakshara coparcenary is inhered in its underlying principles, and there is no question of changing it when the daughter is treated like a son and is given the right by birth. There is no doubt about it that advancement brings about the enlargement of the size of the coparcenary and disabling it from treating the daughter unequally.

• Does joint family property retain its character even after passing in to the hands of a sole surviving coparcener?

Yes

Court observed the judgements in Sheela Devi v. Lal Chand[3], and M. Yogendra & Ors. v. Leelamma N. & Ors.[4], as long as a property remains in the hands of a single person, the same would be treated as his separate property, but if a son is subsequently born to him or adopted by him, it becomes a coparcenary property, and he would acquire an interest therein.

In Dharma Shamrao Agalawe v. Pandurang Miragu Agalwe & Ors.[5] also, it was held that joint family property retains its character even after it pass on to the hands of a sole surviving coparcener. If a son is subsequently born or adopted, the coparcenary will survive, subject to saving the alienations made in the interregnum.

• Whether father of a coparcener daughter should be alive on 9^th September, 2005 when Amendment Act, 2005 came into force?

No

In Sunil Kumar & Anr. v. Ram Parkash & Ors.[6], it was observed that coparcenary consists of only those persons who have taken by birth an interest in the property of the holder. Thus, Coparcener heirs get right by birth. By substituted section 6 with effect from 9^th September, 2005 daughters are recognised as coparceners in their rights, by birth in the family like a son.

The concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under the provisions of section 6(1)(a) and 6(1) (b). Under Section 6, by birth right is given that is called unobstructed heritage. It is not the obstructed heritage depending upon the owner’s death.  Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act.

The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary preposition for the coparcenary. The coparcenary must exist on 9^th September, 2005 to enable the daughter of a coparcener to enjoy rights conferred on her. In case living coparcener dies after 9^th September, 2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted section 6(3). It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in section 6, she has been made a coparcener.

It is not necessary while forming a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary.

In substituted section 6, the expression ‘daughter of a living coparcener’ has not been used. Right is given under section 6(1)(a) to the daughter by birth. The provisions of section 6(1) leave no room to entertain the proposition that coparcener should be living on 9^th September, 2005 through whom the daughter is claiming.

• What are the incidents of coparcenary under Mitakshara Law?

In State Bank of India v. Ghamandi Ram (dead) through Gurbax Rai[7], following incidents were observed:

1. the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person;
2. such descendants can at any time work out their rights by asking for partition;
3. till partition each member has got ownership extending over the entire property, conjointly with the rest;
4. as a result of such co-ownership the possession and enjoyment of the properties is common;
5. no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners;
6. the interest of a deceased member lapses on his death to the survivors.

• Can amended Section 6 be applied retroactively?

Yes

Before the amendment of 2005, widow or daughter of a deceased coparcener could claim a share, being a Class I heir in the property but daughter was not considered as a coparcener. This discrimination was removed by substituting the provision of Section 6 by Amendment Act, 2005.

Court while discussing the difference between retrospective law and retroactive law, observed that the retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws, before it came into force. A retroactive statute is the one that does not operate retrospectively. It operates in future. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. It creates a new obligation on transactions or considerations already past or destroys or impairs vested rights.[8]

Proviso to Section 6(1) clearly states that “nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.” So, Section 6 cannot act retrospectively.

The amended provisions of section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener which is an antecedent event. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application.

[1] (2016) 2 SCC 36.

[2] (2018) 3 SCC 343.

[3] (2006) 8 SCC 581.

[4] (2009) 15 SCC 184.

[5] (1988) 2 SCC 126.

[6] (1988) 2 SCC 77.

[7] (1969) 2 SCC 33.

[8] Darshan Singh etc. v. Ram Pal Singh & Anr., (1992) Supp. (1) SCC 191.

Nishant Singh Rawat

Contributing Editor @LegalWires A Research Scholar at the University of Delhi also graduated from the University of Delhi and Himachal Pradesh National Law University with specialization in criminal law. He is an egalitarian and strong supporter of human rights. He is a keen traveller and mountaineer. Whatever challenges the societal structure and norms, attracts his attention.