Case analysis : Vineeta Sharma v. Rakesh Sharma
The Hindu Succession Act, 1956 (Act of 1956) was enacted to amend and codify laws relating to intestate succession among Hindus and brought about changes with respect to succession and also conferred on women certain right which until then was not in existence. Further, the Act of 1956 also recognized, under Section 6, the special right of male coparceners of a Hindu Coparcenary to inherit by birth over the coparcenary property and laid down rules for succession among the coparceners. This, however, was discriminatory in terms of gender and also negation of constitutional right of equality, in so far as the daughter of a coparcener was concerned. In order to do away with discrimination, the Parliament passed the Hindu Succession (Amendment) Act of 2005 (Act of 2005), which came into effect from 09.09.2005, whereby Section 6 of the Act of 1956 was substituted and recognized the daughter of coparcener to be on par with that of a son, and conferred on her rights by birth on the coparcenary property, however, with a proviso that conferment of such right on a daughter shall not affect or invalidate any disposition or alienation, partition or testamentary disposition of property took place before 20.12.2004.
After the amendment Act of 2005, a Division bench of the Hon’ble Supreme Court of India, in the case of Prakash & Others Vs. Phulavati & Others, (2016) 2 SCC 36, held that the Act of 2005 is prospective in nature and that rights conferred on daughter, under Section 6 of the Act of 2005, is on the living daughter of a living coparcener, requiring the coparcener to be alive as on 09.09.2005 so as to enable the daughter to claim rights over the coparcenary property. In the said case, the coparcener had died prior to 2005 amendment and hence, it was held that the daughter is not entitled to a share in the coparcenary property as she is not the daughter of a living coparcener. In a subsequent judgement of a Division bench of the Hon’ble Supreme Court of India, in the case of Danamma @ Suman Surpur & Another Vs. Amar & Others, (2018) 3 SCC 343, although the Court did not specifically deal with the concept of living daughter of a living coparcener, the Court took a contradicting view from that of decision in Phulavati case and held that daughters have equal rights in the coparcenary property as that of son, even though the coparcener had died before the amendment of 2005.
In the an appeal under analysis herein, i.e., in Vineeta Sharma v. Rakesh Sharma & Others, similar questions were raised before the Hon’ble Supreme Court, and considering the contradicting view expressed by the Hon’ble Supreme Court in the above mentioned two decisions, i.e., Phulavati case and Danamma case, the issue was referred to a larger bench constituting three judges of the Hon’ble Supreme Court.
Issues before the Supreme Court in this case
Whether the amended Section 6 of the Act of 2005 requires the coparcener to be alive as on 09.09.2020, for the daughter to claim rights in the coparcenary property?
Whether the amended Section 6 of the Act of 2005 is prospective, retrospective or retroactive?
Arguments advanced on behalf of the Union of India, by the Solicitor General of India
The amendment act of 2005 is not retrospective but retroactive in nature.
Conferment of right on the daughter did not disturb the rights which got crystalized by partition before 20.12.2004.
The daughter of coparcener in Section 6 does not imply daughter of a living coparcener. The coparcener need not be alive as on the date of commencement of the Amended Act.
The explanation to Section 6(5) as regards requirement of registered partition deed is directory in nature and not mandatory.
Arguments advanced by learned Senior Counsel and amicus curiae, Mr. R. Venkataramani
There is no conflict between the decisions of Phulavati and Danamma, and in both the decisions, the provisions of Section 6 have been held to be prospective in nature.
On the death of a coparcener, his interest would have merged with the surviving coparcenary and hence, on the death of a coparcener father, there will be no surviving coparcener from whom the daughter will succeed. Therefore the daughter can succeed only in interest of a living coparcener.
Although equality has been brought in with effect from 2005 Amendment, the incidence of birth of a coparcener before 2005 is of no consequence.
Oral partition and family settlement are not intended to be reopened by Section 6(1) and 6(5).
Arguments advanced by learned Senior Counsel and amicus curiae, Mr. V.V.S. Rao
Logic of decision in Phulavati is upheld in Mangammal Vs. T.B.Raju & Others.
A daughter born before or after 2005 is considered as a coparcener.
By the language used in Section 6(1)(b) & (c) the Parliament intended to mean conferring the rights in the coparcenary posterior to the amendment and not anterior.
As per the prevailing law, it was not necessary that a partition should be registered. In case where an oral partition is recognised, it should be backed by proper evidentiary support.
Parliament did not intend to confer a daughter with rights in the coparcenary property retrospectively.
The use of the words “on and from” in Section 6(1) indicates that the daughter becomes coparcener from the commencement of the Act.
The status of a coparcener conferred on a daughter cannot affect the past transaction of alienation, disposition, partition – oral or written. The Explanation safeguards all genuine transactions of the past, including oral partition effected by the parties.
There should be a living coparcener to whom the daughter can inherit to become a coparcener.
Arguments advanced by Advocate, Mr. Amit Pai
Substitution of Section 6 under the Amended Act dates back to the commencement of the Principal Act of 1956.
A Notional partition on the death of a coparcener to ascertain his shares is not an actual partition and same is not excluded by the proviso contained in Section 6.
Decision in Phulavati cannot be said to laying down the correct law.
The concept of living daughter of living coparcener is adding to the text of the provisions of Section 6.
Section 6 includes all daughter, whether their father is alive as on the date of amendment of the act.
The Larger Bench of the Supreme Court, in the above Appeals, have referred to various concepts of Hindu Law, both codified and customary, being concepts such as Coparcenary and Joint Hindu Family and unobstructed and obstructed heritage, and also referring to catena of Judgements, came to a finding, at paragraph No.44 of the Judgement, that coparcener father need not be alive as 09.09.2005 in order for a daughter to inherit rights over the coparcenary property, as per the Amended Section 6. Explaining obstructed and unobstructed heritage, the Hon’ble Supreme Court held that the unobstructed heritage takes place by birth, whereas the obstructed heritage takes place after the death of the owner. The Hon’ble Supreme Court further went on to hold that under Section 6, right is given by birth, making it an unobstructed heritage, and therefore coparcener father need be alive as on 09.09.2005 in order for the daughter to inherits rights over the coparcenary property. The Court also added that 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) and that the coparcenary right is by birth and therefore, it is not at all necessary that the father of the daughter be living as on the date of the amendment, since she had not been conferred with the rights of coparcener by obstructed heritage. As such, the Hon’ble Supreme Court did not consider decision in Phulavati case to be a good decision in so far as this aspect is concerned.
As regards the applicability of the amended section 6 to be retrospective or prospective, the Hon’ble Supreme Court held that the amended Section 6 is retroactive in nature. Explaining the concepts of prospectively, retrospectivity and retroactivity, the Hon’ble Supreme Court held that the operation of retroactive statute operates based on a characteristic or event which happened in the past or requisites which had been drawn from antecedent event. The Court further opined that Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth and since the right is given by birth, that is an antecedent event, and provisions operate on and from the date of the Amendment Act, making it retroactive. The Court also added that the provision contained in Section 6(4) makes it clear that the provisions of Section 6 are not retrospective.
Among other issues answered by the Hon’ble Supreme Court in the above case, the following were answered:
The right conferred on a daughter, in the coparcenary property is by birth and hence, it is not necessary that the father be alive as on 09.09.2005. As such, the decision in Phulavati case is overruled and the decision in Danamma case is partly overruled to the effect where it said that the coparcener father has to be alive as on 09.09.2005.
The amendment by way substitution of Section 6 of Act of 2005 is retroactive in nature.
Written By Jayant Kashyap, 2nd Year Law Student , DSNLU