Daughter can claim her share in ancestral property even before Amendment Act 2005

Vineeta Sharma v. Rakesh Sharma &Ors.
Supreme Court of India
The Hindu Succession Act, 1956

BRIEF FACTS

1. Several appeals on the issue of retrospective effect of Section 6 of the Hindu Succession Act was filed before the Hon'ble Supreme Court.

2. In one of the cases, One Ms. VineetaSharma (Appellant) filed a case against her two brothers viz. Mr. Rakesh Sharma &Satyendra Sharma, and her mother (Respondents).

3. Shree Dev Dutt Sharma (Father) had three sons, one daughter and a wife.

4. He expired on December 11, 1999.

5. One of his sons expired on July 1, 2001 (unmarried).

6. The Appellant claimed that being the daughter shewas entitled to ¼th share in the property of her father.

7. The case of the Respondent wast hat after her marriage, she ceased to be a member of the Joint family.

THE HON'BLE HIGH COURT disposed off the appeal as the amendments of 2005 did not benefit the Appellantas the father of the Appellant passed away on December 11, 1999.

THE HON'BLE SUPREME COURT HELD that the provisions contained in substituted Section6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter bornbefore or after amendment in the same manner as son with same rights and liabilities.

Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005 (date of amendment).

SECTION 6 OF THE HINDU SUCCESSION ACT, 1956

DEVOLUTION OF INTEREST IN COPARCENARY PROPERTY

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided 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.

(2) Any property to which a female Hindu becomes entitled by virtue of sub¬-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre¬-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great¬-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect—
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation. —For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.] Statement of Objects and Reasons The Hindu Succession (Amendment) Act, 2005 Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary.

The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property.

The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have.

State Amendment Sections 6A to 6C Karnataka: After section 6 the following sections shall be inserted, namely:— "6A. Equal rights to daugher in co-parcenary property.— Notwithstanding anything contained in section 6 of this Act—

(a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;

(b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son: Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter: Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;

(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;

(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.

LET'S ANALYSE

The Hindu Succession Act, 1956 (‘Act') regulates intestate succession among Hindus. In 2005, Section 6 of the Act was amended to confer legal rights and liabilities upon daughters in the ancestral property by birth in a Hindu Undivided Family (‘HUF'), equivalent to that of a son. Since the amendment, a question that came up before the Court was whether section 6 of the Act can be retrospectively applied?

ISSUES AND PRECEDENT

The case law on this issue has been unclear and contradictory so far. In Prakash v Phulavati (2016), a single-judge bench of the Supreme Court held that section 6, as amended in 2005, did not apply retrospectively, and thus only applied to those cases where both the father and his daughter were alive on the September 9th 2005, when the amendment came into effect.

However, in Dannama @ Suman Surpur v Amar (2018), a division judge bench of the Supreme Court held that the amended section conferred full rights upon the daughter, who could claim her rights to the property in question despite her father having passed away in 2001 before the amendment came into force.

The current decision is on a batch of appeals, the main case among which is Vineeta Sharma v Rakesh Sharma.

The other cases which were also referred for hearing involve similar questions or disputes. In the main case, the Delhi High Court highlighted the contradiction in the cases of Phulavati and Danamma. In its ruling, however, it referred also to the case of Mangammal v T.B. Raju (2018), where the Supreme Court followed the reasoning in Phulavati. The Delhi High Court thus held that the daughter was not a coparcener when her father passed away in December 1999, as the amendment of 2005 could not be applied retrospectively. The daughter then appealed to the Supreme Court on this matter, and the question was placed before the three-judge bench for final clarification.

RETROSPECTIVE APPLICATION WILL CAUSE UNCERTAINTY AND INSTABILITY

The Solicitor General, arguing on behalf of the Union of India, said that the act was not retrospective, but retroactive, by which he meant that the amendment allowed daughters to exercise their rights on its commencement, and no earlier. However, he held that the conferment of this coparcenary status could not affect the partition of property that took place before the date when the Bill was tabled before the Rajya Sabha—December 20th 2005.

Senior counsel R. Venkataramani as amicus curiae argued that to grant the amendment retrospective power would be to introduce much uncertainty and instability in the law. He insisted that the amendment must be forward-looking to properly serve the purpose intended by the legislature, or else it would only cause more problems and introduce further litigation into courts. Furthermore, counsel Sridhar Potaraju also argued that ‘daughter of a coparcener' could only mean the daughter of an alive person who had the status of coparcener at the time of the amendment.

S.6 MUST BE RETROSPECTIVELY APPLIED TO ACHIEVE EQUALITY

On the other hand, senior counsel Amit Pai argued that a daughter cannot and should not be deprived of her constitutional right to equality by such concerns and that the relevant amendment must be given full and unfettered effect. To read into the amendment ‘the living daughter of a living coparcener' is to introduce to the text of the Act a concept that was not supplied by the legislature.

COURT'S RULING

The court considered both the issues of retroactivity and the origins of coparcenary rights. It examined the implications of retroactivity, and whether these were reconcilable with the true origins of coparcenary rights, and held that it was not so. Coparcenary rights, as rights of birth, cannot be ‘conferred' at a point in time.

Furthermore, the court held that the issue of when the death of the father occurred was not relevant, as survivorship was only the mode of succession, not that of the formation of coparcenary rights. Thus, the bench held that the Court erred in its decision in Phulavati since it did not, in that case, consider how a coparcenary is created. Thus, they cast doubt also on the ruling in Mangammal.

Next, the court addressed the issue of uncertainty or instability. It was held that the very basis of the law in this area—the law of Mitakshara coparcenary—is itself unstable. The share is uncertain until the actual partition takes place, and thus uncertainty is inherent in the law, not in its interpretation or application in the interests of equality.

Finally, on the issue of equality – the major grounds for the ruling – the Court held that the purpose of the relevant amendment was to ensure gender justice as constitutionally protected. The amendment was made with the express intention to overrule the discriminatory and oppressive application of the original statute, and this intention must be given full effect.

Thus, in this ruling, the court emphasised the origins of coparcenary rights and the constitutional protections accorded to women by Article 14, and held that section 6 could be retrospectively applied. The court also took steps to protect the rights of coparcener daughters from unscrupulous acts by rejecting purely oral partitions and setting a higher burden of proof for such issues.

CONCLUSION

This is a landmark judgement of the Apex Court and the amendment in Hindu Succession Act,2005 ,which has changed family landscape of India. Earlier daughters have no right in the ancestral property of father and they are also no considered as coparcener in the family of father. The Apex Court held that Coparcenary rights, as rights of birth, cannot be ‘conferred' at a point in time, this means that a daughter can claim her share in ancestral property even before amendment act,2005. The death of her father does not matter in this case.

DISCLAIMER: The case law presented here is only for sharing information with readers. In case of necessity do consult with tax professionals.