This article is written by Arya Senapati. It deals with the landmark case of Prakash vs. Phulavati (2015). It attempts to analyse the case through its factual matrix, legal issues, contentions and judgement. It also covers important provisions and legal principles concerning women’s rights as coparceners under Hindu personal law.
Table of Contents
Introduction
Article 14 and Article 15 of the Indian Constitution guarantee gender equality to women and provide them with the fundamental right against discrimination of any kind. One of the areas where women faced the most amount of discrimination was inheritance or claim over Hindu joint family property. Traditionally, the inheritance of the property of a Hindu Joint Family was governed by the Mitakshara system. As per the old understanding of the Mitakshara system, women were not considered coparceners and had no claim over the property of a Hindu joint family forming a coparcenary. They were entitled to stridhan, and the concept of dowry emerged because women did not have access to property. The concept of dowry led to many problems and severe cases of dowry deaths for women. They did not have economic freedom of independence due to this lack of entitlement over inherited property. Owing to all these factors, the Hindu Succession Act, 1956 was amended by the Hindu Succession (Amendment) Act, 2005, which replaced Section 6 of the Act. The amended provision provided equal coparcenary rights to women, the same as their male counterparts, and they attained full claim over the joint family property. Even though this piece of legislation was highly progressive, its interpretation raised multiple questions. The primary question being regarding the retrospective application of the amended provision. This led to a series of decisions, one of which was the case of Prakash vs. Phulavati (2015), which held that the amended provision could not be retrospectively applied and the father and the daughter both need to be alive at the date of amendment for the provision to be applicable in the case. This idea was overruled much later recently by the landmark case of Vineeta Sharma vs. Rakesh Sharma (2020). Following the route was Arunachala Gounder vs. Ponnuswamy (2022), in which the Supreme Court held that the self-acquired property of a Hindu male dying intestate would devolve by inheritance and not succession and a daughter will be entitled to inherit such property as well as the coparcenary property, the condition of rights of women in terms of the property has been crystallised in a good direction.
Details of the case
- Appellant: Prakash
- Respondent: Phulavati
- Court: Supreme Court of India
- Citation: AIR 2016 SC 769
- Bench: J. Adarsh Kumar Goel, J. Anil R. Dave
- Date: 16.10.2015
- Provisions involved: Section 6 of the Hindu Succession Act, 1956
- Overruled by: Vineeta Sharma vs. Rakesh Sharma (2020)
Facts of the case
The respondent in this case, who was originally the plaintiff, had filed a case before the Additional Civil Judge (Senior Division) at Belgaum for the purpose of partition and separate possession of her share in the property, which she ascertained as 1/7th. The claim was made on properties scheduled A to G except for a particular property mentioned in Schedule A, numbered as CTS No. 3241, in which she claimed 1/28th share. As per the plaintiff, the suit properties consisted of properties which were acquired by her father, the late Yeshwant Upadhye through inheritance from his adoptive mother Smt. Sunanada Bai. According to her plea, due to her father’s death, the shares should devolve to her as per her claims.
The claim of the plaintiff-respondent was challenged on the ground that she could only get shares in her deceased father’s self-acquired property and a few other properties but not on his entire property. While the suit was pending, the Hindu Succession (Amendment) Act, 2005 came into effect and substituted Section 6 of the original Hindu Succession Act, 1956, to state that women would have the same coparcenary rights to the coparcenary property as do men. They shall attain coparcency by birth just like their male counterparts and will also be subject to equal liabilities with their male counterparts.
Owing to this amendment being passed and the changes in circumstances that it foresaw, the plaintiff-respondent amended her plaint and claimed her equal shares as per the newly amended law. The Trial Court, in its decree, granted 1/28th share to her in certain properties based on the notional partition created on the death of her father, and in certain properties, no share was given to her. In some properties, 1/7th share was also granted.
High Court’s decision
The respondent plaintiff, aggrieved by the decision of the Trial Court, sought an appeal to the Karnataka High Court, with the ground that as per the amendment, she is an equal coparcener to her father’s property and must receive her shares based on the newly amended law. She claimed that she was entitled to inherit equal shares in the coparcenary property like her brothers other than the individual claims in certain items of property.
The defendant-appellants contended that the plaintiff could not be made entitled to any share in the self-acquired property of the members of the joint family. They also contended that the claim to shares made by the plaintiff must be decided as per Section 6 of the Hindu Succession Act, 1956 as it was priorly construed and not through the amended version of it.
The defendant relied on the case of M. Prithviraj vs. Leelamma N (2007) and contended that if the father of the plaintiff died prior to the commencement of the amendment, the amended provisions would not apply to ascertain her shares in the property. Only the law which was applicable on the date of opening of succession will be applied while ascertaining the plaintiff’s share.
The High Court framed the issues in this case as: “Whether the plaintiff is entitled to shares in her father’s property as per the previous provision or the amended provision of Section 6 of the Hindu Succession Act, 1956?”
The High Court held that, even if the suits or proceedings were pending during the commencement of the amendment, the amended provisions would still apply. The law in this scenario is well established as per the judgement of the Supreme Court in the case of G. Sekar vs. Geetha and Ors. (2009), which held that any changes in law inevitably apply to pending proceedings, and such an application would not be treated as a retrospective application of law but simply the law as it stands on the day being made applicable.
The High Court stated that even if the case was instituted in the year of 1992, almost four years after the death of the father, the position of the parties still remained as members of the joint family. Therefore, as per the amended version of Section 6 of the Hindu Succession Act, 1956, a female member of a joint family becomes entitled to coparcenary property as she is deemed to be a coparcener by birth and has a right to the joint family property through birth. Female members also become equal sharers of the property as their male counterparts. Whenever a partition takes place, the coparceners will succeed in the property equally. This legal position was envisioned by Section 6 of the Hindu Succession Act, 1956 and the decision of the Supreme Court in the case of G. Sekar vs. Geetha and Ors. cannot be ignored and must be applied strictly to establish that female members are equal coparceners. The only exception to this principle and to the application of Section 6 of the Hindu Succession Act, 1956, is the situation where partition had been effectuated by a registered partition deed or by a decree of the court which had attained finality before 20.12.2004.
Considering that the instant case doesn’t fall under such an exception, it is fair to say that the respondent-plaintiff was entitled to 1/7th share in all items of properties in Schedule A to D and as per Schedule F, the first item was given up by the plaintiff.
Aggrieved by this decision, the defendant-appellants filed an appeal to the Supreme Court.
Legal issues involved
- Whether the amendment to Section 6 of the Hindu Succession Act, 1956, relevant even after the death of the respondent’s father?
- Whether the provisions of the amended legislation have a retrospective application?
Contentions of the appellants
The appellants argued that the respondent could only claim shares in the property as per the unamended provision of Section 6 of the Hindu Succession Act, 1956. They claim that the provision, as amended by the Hindu Succession (Amendment) Act, 2005, would not be applicable in this case to ascertain the rights of the plaintiff as it cannot have a retrospective effect. They contented that she cannot make any claims on the self-acquired properties of the joint family members, They argued that considering their father died on February 18, 1988, the respondent cannot be deemed to be a coparcener of the property as her father was not alive while the amendment was made in the year of 2005.
The appellants also contended that the explanation to Section 6(5), which states that partition refers to a partition executed by a registered deed or by a court’s decree, and the provisions of Section 6(1) must be harmoniously constructed to ascertain the real meaning of the provision and determine its applicability.
Contentions of the respondent
The respondent agreed with the view taken by the High Court. She contended that the amendment was brought about after considering the social nuance of women’s rights in India. The amendment sought to be beneficial for women by making them entitled to equal shares in coparcenary property and privileges, and therefore, it should have a retrospective effect. She contended that it is immaterial that her father has passed away before the commencement of the amendment. What is material is the fact that the coparcenary is obtained by birth, and by being born into the family, she is entitled to equal shares just like her male counterparts.
Understanding Section 6 of Hindu Succession Act, 1956
Section 6 of the Hindu Succession Act, 1956 was substituted by the Hindu Succession (Amendment) Act, 2005 to provide equal coparcenary rights to women and make them entitled to claims over shares in joint family property. This action was taken to eradicate years of discrimination and unequal treatment faced by women by making them coparceners with equal rights and liabilities, as do their male counterparts. Section 6 talks largely about the devolution of interest in the coparcenary property. It states that on and from the date of effect of the amendment, wherever a Hindu joint family is governed by the Mitakshara legal system, a daughter will attain coparcenary rights by birth and will have the rights equal to that of a son. It goes on to say that she shall have the same rights over the coparcenary property as if she had been a son. Along with the rights, a daughter shall also be subjected to the same liabilities with respect to the coparcenary property as does a son. The proviso to Section 6(1) states that the above principles would in no way affect or invalidate any disposition, alienation or partition of property which was effected before the 20th of December, 2004.
Section 6(2) states that a property which a female Hindu receives by virtue of other entitlements and claims over the shares in the joint family property in the way mentioned in Section 6(1) shall be her own property. It shall be regarded as a coparcenary ownership, and she can dispose of it at her own choice via testamentary disposition.
Section 6(3) states that whenever a Hindu dies after the commencement of the amendment, his interest in the property will devolve by testamentary or intestate succession and not through survivorship. The coparcenary property shall be deemed to have been divided as if a partition has taken place, and the partition would result in the same shares being allotted between daughter and son. The shares of a predeceased son or a pre-deceased daughter shall devolve upon their surviving children in the manner in which they would have received had they been alive.
Section 6(4) states that once the amendment has commenced, no court of law shall recognise the right to proceed against a son, grandson or great-grandson for the recovery of any debt taken by father, grandfather or great-grandfather merely on the ground that the survivors have a pious obligation to fulfil the debt under Hindu law. This provision shall not affect any debt taken before the commencement of the Hindu Succession (Amendment) Act, 2005.
Section 6(5) says that no principles contained in this entire provision shall be applicable on a partition which has taken effect before the 20th of December, 2004. The explanation to this section states that partition would mean any partition which has been effectuated through the execution of a deed registered under the Registration Act, 1908 or a partition made through the decree of a court. This gives rise to the concept of notional partition.
Notional partition
The idea of a Hindu joint family is unique to Hindu religion and society. It is a legally recognised creation of law. There are essentially two schools of Hindu law which govern the Hindu joint family and the rules of succession within it. The first one is the Dayabhaga school of law, and the second is the Mitakshara school of law. The Mitakshara legal system concerns itself largely with the male members of the Hindu joint family and, therefore, extends to sons, grandsons, great-grandsons, etc. A son, in the Mitakshara system, attains rights and interests in the ownership of the ancestral property of the joint family through birth. The male members come together to constitute another fictional legal entity known as coparcenary or co-ownership in the ancestral property of the Hindu joint family. In the Mitakshara system, property cannot be divided physically, but the shares are ascertained numerically. This system is highly traditional and orthodox and applies to major portions of India except Bengal and Assam.
Contrary to the Mitakshara system, the Dayabhaga system does not concern itself with a specific gender. It believes that after the death of the father, the right of the property will devolve to the children but not automatically as it does in the Mitakshara system. In the Dayabhaga system, the father has complete and absolute control over the ancestral property till his death. The property gets physically separated into specific portions, and then it is assigned to each coparcener. The Dayabhaga system is considered to be more liberal as compared to the Mitakshara system.
Notional partition largely finds its mention in the Mitakshara system of law. It is a fictional legal doctrine which states that when a person dies intestate, his shared interest shall devolve upon his/ her heirs by succession. After the 2005 Amendment, the rule regarding survivorship was completely abolished, and a coparcener who died after 2005, his shares were calculated through deemed or fictional partition. There was no actual or physical partition of land. This fiction partition was important as it was important to ascertain the interests of the successive members of the joint family property. For the devotion of shares by succession, it is necessary to determine the shares by notional partition.
Therefore, notional partition is a concept in which the family properties are not physically divided, but rather, it is presumed that just before the death, the coparcener claimed partition and therefore, shares of all the coparceners are determined in the same way as it is done in actual or physical partition.
In actual partition, all those who claim shares are alive and can claim partition during their lifetime, but in notional partition, the share gets ascertained after the death of a coparcener by presuming that he claimed partition right before his death. Therefore, the notional partition is an important legal fiction.
Judgement in Prakash vs. Phulavati (2015)
The Supreme Court outrightly stated that considering the multiple issues involved in the case, the court will only confine itself to the issue of the retrospective effect of the amended provision as different High Courts provided different opinions on this matter, and it is important to settle a clear understanding of the application of the provision to prevent any misapplication. The Apex Court believed that it was not important to go into the details of the facts and other issues recorded by the lower courts.
Retrospective application of the section
Referring to the contention made by the appellants, they supported the view that the 2005 amendment was not applicable to the claim of the respondent as her father, who was the coparcener in the property of the Hindu joint family, died prior to the commencement of the amendment. So when the amendment was made, she was not the daughter of a coparcener as her father was deceased. As per the Apex Court, this contention is made from the plain reading of the provisions of law, which state that in the absence of express or implied intention of a provision being retrospective, it will always be treated as prospective, and it shall affect the substantive rights prospectively but would not affect any vested rights as the vested rights cannot be taken away by a subsequent amendment in the absence of any express provisions or necessary intention of the law. Furthermore, the amending provision stated its applicability to be on and from the commencement of the Hindu Succession (Amendment) Act, 2005 i.e. 9th September 2005. The High Court was of the opinion that even if the provision was prospective in nature, it could certainly be applied to pending proceedings as it has been decided in previous decisions of the Apex Court.
The Supreme Court was of the opinion that the confusion arose because of the fact that, as per the established law, succession opens out on the date of the death of the coparcener and gets finalised even though partition by metes and bounds does not take place. It was noted that there exists a conflicting provision in the explanation to Section 6(5), and therefore, harmonious construction must be afforded to the said provision along with the explanation to properly implement it. It is not advisable to read an explanation in conflict with the main provision. The main provision of Section 6(1) entitled the daughter with the rights of a coparcener from the commencement of the Act and not any other time. The provision to Section 6(1) will only apply where the main provision of Section 6(5) applies.
Harmonious construction of provisions
It was submitted by the Supreme Court that that explanation to the provision is merely a rule of evidence and cannot be treated as a substantive provision that has the effect of determining the rights of the parties. As per the Apex Court, the date on which the daughter becomes the coparcener is the date of the commencement of the fact and not any other date. Partitions that were effected before 20th December 2004 are not affected by the provision. The explanation simply defines partition as a partition made by a registered deed or through a court decree. The effect of the explanation was not to invalidate or wipe out a legally valid partition prior to the said date but simply to place the burden of proof of the genuineness of such a partition on the party who alleges it. In any situation, statutory notional partition remains valid and effective as per the Supreme Court.
As per the Apex Court, the text of the amended provision clearly states that the right of being a coparcener is conferred on a daughter on and from the commencement of the Hindu Succession (Amendment) Act, 2005. Section 6(3) simply deals with the death after the amendment and is applicable only when the deceased dies after the amendment commenced. As per the simple language of the statute, there is no ground for a varied interpretation other than the one which is reflected in the text of the provision as it stands amended. An amendment of a substantive provision is always prospective unless a contrary intention to apply it retrospectively is provided either expressly or impliedly. In this case, there was neither any express nor implied provision for providing retrospective application to the amended provision. As per the Supreme Court, the necessity for a partition to be registered cannot have any application to statutory notional partition on the opening of succession as per the unamended provisions. As per the Supreme Court, the view of the High Court on this particular finding cannot be sustained in any way.
Applicability of social legislation
Moving further to other considerations, the Supreme Court states that even if the respondent argues that the amendment was a social legislation made to eradicate discrimination against women and counter unequal inheritance rights and, therefore, it should be given retrospective application, it cannot be sustained. Even social legislation does not have any retrospective application unless and until the statute expressly provides it. In this case, the legislation expresses that the amendment is to take effect on and from the commencement and only in situations where the death of the coparcener is after the commencement of the amendment.
Interpretation of provisions
As per the Apex Court, the interpretation of a provision always depends on the text and the context of the provision, and the general rule is that it must be read in an ordinary sense, given the plain language of the provision. In case any ambiguity arises, it is the duty of the court to give a reasonable meaning to the provision while dealing with its interpretation. In situations of apparent conflict between a provision and explanation, harmonious construction must be used, and meaning must be advanced based on the object and intention of the legislature. Based on the text and content, different rules of interpretation must be applied.
The general rule of interpretation is that a proviso is an exception to something which is contained in a provision. In simple words, generally, a proviso is viewed as an exception to the general rule contained in the provision. On the contrary, if the text, content and object are required, a different rule of interpretation can be applied. In the same way, an explanation usually elaborates the meanings of words contained in a provision, but in cases where the language and intention are so that it requires a different interpretation, such an interpretation can be applied. The role of interpretation is to outline the intention of the legislators.
Keeping this object in mind, the Apex Court stated that the proviso to Section 6(1) and sub-section (5) of Section 6 poses the intention to exclude all transactions referred within them which must have been effected prior to the 20th December 2004 i.e. the date on which the bill was introduced Therefore, the explanations cannot enable the reopening of partitions which have already been effected. The intention behind affording finality to all the decisions made prior to the 20th of December, 2004 is not to make the main provision apply retrospectively in any manner. The real intention is to see that through fake transactions, property available at the introduction of the bill must not be taken away. In no situation whatsoever the statutory notional partition effected even after 20th December 2004 could be covered by the explanation or the proviso in question.
Based on these principles, the Apex Court held that the rights under the amendment are applicable to living daughters of living coparceners as of 9th September 2005, and it is immaterial when the daughters are born. The act of disposing of or alienating a property or partition which took place before 20th December 2004 will remain unaffected as per the decision of the Supreme Court. The explanation shall only be applicable to all partitions affected after the mentioned date.
Based on the above observation, the Supreme Court set aside the order of the High Court and remanded the matter to the High Court for a fresh decision as per law.
As per the Supreme Court, the views it took were consistent with the previous decisions on similar matters and were not in conflict. Many such decisions dealt with situations where the change in law was held to be applicable to pending proceedings as per the intention of the legislature in a particular law. The Apex Court states that there is no dispute with the propositions laid down in the previous decisions The decisions cited by the respondent do not apply to the matter present in the case.
Relevant decisions referred to in the judgement
Following was the observation of the Apex Court regarding the cases cited by the respondent:
In the case of Ram Sarup vs. Munshi (1962), the question dealt with by the court involved matters of amendment to the Punjab Pre-emption Act, 1913 which restricted the right to pre-emption, but then Section 31 was introduced to the Act by virtue of the amendment This amendment was held to be retrospective and had retrospective operation because the language mentioned in the provision intended so.
In the case of Dayawati vs. Inderjit (1996), Section 6 of the Punjab Relief of Indebtedness Act, 1934 expressly provided for the retrospective application of the provision. Therefore, its language was interpreted and applied in such a manner. The language mentioned that the provisions would be applicable to all pending suits and, therefore, there couldn’t have been any other interpretation.
In the case of Lakshminarayan Guin vs. Niranjan Modak (1984), the question was related to the applicability of Section 13 of the West Bengal Premises Tenancy Act, 1956, which in its text expressly mentioned that no order could be passed by a court which contradicts the provisions of the new law and therefore such an express interpretation was taken while interpreting the pending suits.
In the case of Amarjit Kaur vs. Pritam Singh (1974), Section 3 of the Punjab Preemption (Repeal) Act, 1973, was dealt with by the court. The provision expressly mentioned that the court cannot pass any pre-emption decree after the commencement of the Act. Therefore, the express intention was not ignored and strictly construed. Similarly, the case of V.K. Surendra vs. V.K. Thimmaiah (2013) dealt with the presumption about the nature of a joint family property and the burden of proof being on the person claiming such property to be separate. This case laid down a decision in the form of a rule of evidence, which is not applicable in the instant matter.
Coming to the case of S. V Venkatarama Reddy vs. K. S Narayana Swamy (2011), the Supreme Court observed that the case dealt with the question of whether a preliminary decree can be passed determining the shares in a partition and can such shares be varied based on intervening events of the time before the final decree is passed. In the said case, a partition suit was filed by the son against his father and a preliminary decree was passed determining the shares of the parties but before the final decree, the amendment was made to the Hindu Succession Act, 1956 which allowed shares to the unmarried daughters. Therefore, the unmarried daughters applied to the court for the shares, and their plea was upheld. The judgement in no way dealt with the issue involved in the present matter. It was not a case wherein the coparcener’s whole daughter claimed the entitlement to shares was not alive on the date of commencement of the Act, nor was it a case where the shares of the parties were crystallised by the operation of law. Similar positions were taken in the case of Ganduri Koteshwaramma vs. Chakiri Yanadi (2011).
After analysing the decision relied upon by the respondent, the Supreme Court moved towards referring to the decisions relied upon by the appellant. In the case of Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum (1978), it was held that the deeming provisions referring to the partition of a property immediately before the death of the coparcener were to be given due and full effect in relation to settled principles of statutory interpretation of a provision, In the case of Vaishali Satish Ganorkar vs. Satish Kesharao Ganorkar (2012), the Bombay High Court held that the amendment made to the Hindu Succession Act, 1956 would not apply unless the daughter is born after the 2005 amendment came into force. The Supreme Court stood opposed to this view and stated that it was unable to find any reason to uphold that the birth of a daughter post the commencement of the amendment was a valid precondition for the application of the provision What is material is the fact that both the father and the daughter should be alive on the date of the amendment.
On an unrelated note, part II of the judgement discussed the imminent issue of gender discrimination faced by Muslim women. Even if the issue was not directly involved in the appeal, it was raised by some counsels. The Apex Court discussed the arbitrary divorce practices and bigamy faced by Muslim women despite constitutional safeguards of gender equality. The Apex Court sought this matter to be discussed separately in a separate Public Interest Litigation and issued notice to the relevant authorities.
Analysis of Prakash vs. Phulavati (2015)
Based on the various matters of fact and relying upon all the cases cited by both parties, the Apex Court highlighted that the appellant’s contentions regarding the date of the death of the father of the respondent being much before the amendment must be ascertained as per the plain language of the provisions. In simpler terms, considering that the father of the respondent died much before the amendment was brought into effect, she cannot claim to be a coparcener as both the father and the daughter must be alive on the date of the amendment for the amended provisions to be applicable on the case. The judgement took a very narrow approach regarding the interpretation of the statutory provisions. The court decided that unless and until a provision expressly or impliedly mentions the possibility of retrospective application, it cannot be said to be applicable retrospectively. The general rule that every amendment is prospective in nature unless and until it has been declared expressly or impliedly to be retrospective was upheld in this case. As Section 6(3) stated, the amended provision will only be applicable to Hindus who die after the Act takes effect. It leaves no space for any interpretation beyond the textual analysis of the provision.
The Apex Court also negated the highly significant argument raised by the respondent that the legislation was a social legislation intended to cure the discrimination faced by women in the field of property or inheritance rights. The Apex Court stated that even social legislations are prospective in nature unless expressly or impliedly declared to be retrospective. The Apex Court also pointed out that while interpreting a statute, its wording and context should be heavily relied upon, and if there is any conflict in the text, the most sensible interpretation must be upheld. The most sensible interpretation is the one which takes the object and the intention of the legislation forward. In this particular case, the partitions effected before 20th December 2004 will be unaffected by the amendment. Even though the judgement goes into minute details in terms of analysis and interpretation and various precedents, it still had major loopholes, which were cured later in the decision of Vineeta Sharma vs. Rakesh Sharma (2020), which overruled the decision of Prakash vs. Phulavati (2015) and many other similar decisions which misinterpreted the amendment and its application and affected the fulfilment of the intention of the legislature to create equality in terms of rights of women to be equal coparceners and claim equal shares in the property. Even though this judgement might not seem progressive in its approach, it surely was highly technical owing to its reference to various legal principles, which shall serve as a guiding light in other decisions.
Other related decisions
The decision given in the case of Prakash vs. Phulavati (2015) has been mentioned in other decisions as well. The most prominent one is the decision of Danamma Alias Suman Surpur and Anr vs. Amar and Ors (2018).
Danamma Alias Suman Surpur and Anr vs. Amar and Ors. (2018)
In this instant case, an appeal was preferred from the decision of the High Court. The decision was one which upheld the decision of the Trial Court that denied giving any coparcenary rights to the appellants who were born prior to the commencement of the 2005 Amendment Act. The factual matrix of the case states that Mr Gurulingappa Savadi is the deceased who passed away in the year 2001. He left behind a widow and four children (two sons and two daughters). One of the daughters is Danamma, the appellant in this case. The conflict arose when, in 2002, Amar, the son of the deceased, filed a suit for partition and for separate possession of the Hindu joint family coparcenary property. He denied any shares to the daughters on the ground that they were born prior to the Hindu Succession Act, 1956 and had received sufficient dowry during their marriages which can be viewed as relinquishment of shares in the coparcenary property. The Trial Court decided that the daughters are not coparceners as they were born before the commencement of the Hindu Succession Act, 1956 and also did not uphold the argument regarding dowry being equated to relinquishment of shares as it is a regressive thought, which has ill effects on the society. The appellants appealed to the High Court which gave its decision in the year 2007, which held that the amendment was passed during the pendency of the suit and therefore, it crystalised the rights of the daughters as coparceners and made them equal to the sons in terms of inheritance to the property. The matter went before the Supreme Court of India. The Apex Court held that Section 6 of the amended Hindu Succession Act, 1956 should be interpreted in a liberal manner. It must be done so to take forward the intention of the legislature to make an equal ground for men and women in terms of the right to ancestral property. Founded upon this principle, the Apex Court decided that the amended provisions are applicable to all daughters, irrespective of them being born before or after the enactment of the law. The confusion regarding the retrospective or prospective application of Section 6 arose in the case of Prakash vs. Phulavati (2015), in which the Supreme Court made it clear that all amendments made to the substantive provisions of the law are deemed to be prospective unless and until a contrary intention is expressly or impliedly made by the statute. In the case of Danamma vs. Amar (2018), the Supreme Court adhered to the literal interpretation of the provision and held that since the daughters were alive during the commencement of the amendment, they are coparceners and have equal shares as sons. The Apex Court finally decided that Section 6(1) must be prospectively applied, and other subsections might have retrospective application. This was concluded based on a harmonious interpretation of the provisions and the explanations and the intentions of the lawmakers. The Apex Court clarified that it is immaterial whether the daughter is born before the commencement of the Act. The daughter must be alive during or after the commencement of the Act to be a coparcener. This decision led to a lot of confusion and ambiguities.
Current position of Section 6
Due to the multiple ambiguities regarding the interpretation of Section 6, the Apex Court was approached to give a final interpretation in the case of Vineeta Sharma vs. Rakesh Sharma (2020), which crystallised the rights of daughters and overruled previous decisions which were ambiguous.
Vineeta Sharma vs. Rakesh Sharma (2020)
In this case, Shri Dev Dutt Sharma was the deceased coparcener who left behind one wife, one daughter and three sons. The deceased passed away on the 11th of December, 1999. One of his sons also passed away on the 1st of July 2001 and was unmarried during his death. The daughter, Vineeta Sharma, claimed for 1/4th share in the coparcenary property. Her claim was denied by other members as they argued that considering her father passed away in 1999, which was before the commencement of the amendment of 2005, she cannot claim any shares in the property. They also claimed that, after her marriage, she ceased to be a member of the joint family. Vineeta Sharma filed a suit against her brothers, Rakesh Sharma and Satyendra Sharma and their mother. She claimed coparcenary rights in the property based on her birth into the family. The Delhi High Court stated that Section 6 of the Hindu Succession (Amendment) Act, 2005, will not be applicable to this case as her father passed away before the 9th September 2005, when the amendment commenced. This decision was based on the principles set forth by Prakash vs. Phulavati (2015), which held that both the father and daughter must be alive during the commencement of the amendment of 2005 for the principles to be applicable in the case. The appellant, Vineeta Sharma, aggrieved by this decision, filed an appeal in the Supreme Court of India.
Shri Tushar Mehta, appearing on behalf of the Union of India argued that the Hindu Succession (Amendment) Act. 2005 is retroactive in nature and not retrospective in nature. The rights of the coparcenary, which are conferred on a daughter, did not hinder the rights that were crystallised by the partition effected before 20th December 2004. Section 6 of the Act does not deem the daughter to be the daughter of a living coparcener, and therefore, the coparcener need not be alive on 9th September 2005 to provide applicability to the provisions of this Act.
Learned Senior Counsel Shri R. Venkataramani was appointed as the amicus curiae in this case. He argued that there is no conflict between the decisions taken in the Phulavati case and the case of Danamma Surpur vs. Amar (2018), as both these cases held that the amendment cannot have a retrospective effect and therefore, Section 6, as well as the amended Act, will always have prospective effect. As per the learned counsel, there must be a living coparcener to devolve the coparcenary interest. If coparcenary interests are given to daughters by birth before 2005, it will lead to a high amount of uncertainty and severely affect the workings of the law.
The next set of arguments was advanced by learned Senior Counsel Shri V.V.S. Rao, who was also appointed as an amicus curiae. He argued that the daughters who are born before and after 2005 should be regarded as coparceners. The daughter who has been regarded as a coparcener from the 9th September 2005, will only have access to the coparcenary right and interest from 9th September 2005 and not before that. The next point of argument was that the registration of the partition deed is not mandatory but wherever oral partition is effected, there must be reasonable and substantial evidentiary resources to validate such partition. The final argument was that the daughter should have been alive on the date of amendment and there should have been a living coparcener from whom the coparcenary interests devolved on her.
The next set of arguments was put forth by learned counsel Shri Sridhar Potaraj, representing the respondents. He argued that the amended Act must be given prospective applicability as is the intention of the legislators and is clear from the plain text of the provisions. He further contended that the daughter of a coparcener clearly entails and must be construed as the daughter of a living coparcener and that she attains the status of coparcener on and from the commencement of the Act.
The final set of arguments was put forth by the learned counsel Shri Sameer Srivastava who argued that imposing the necessity of having both the coparcener and the daughter alive on the date of amendment defeats the entire purpose of the amendment which was to bring daughters and sons on an equal footing in matters of inheritance and claims over property. Coparcenary rights are given to daughters through birth and simply their birth is enough to devolve interest in the coparcenary property.
Considering all these arguments, the Supreme Court framed the following issues:
- Can the amended Section 6 of the Hindu Succession Act, 1956 amended by the Hindu Succession (Amendment) Act be applied retrospectively?
- Is it necessary that the coparcener(father) remains alive on 9th September 2005?
- Can a daughter born before 9th September 2005 claim the rights to coparcenary property?
Based on these legal issues, the Supreme Court put forth its decision. The judgement was authored by J. Arun Mishra. It primarily stated that daughters who are born before or after the amendment shall be deemed to be coparceners in the ancestral property. The decision overruled the decision of Prakash vs. Phulavati (2015) and stated that it is not material that a predecessor coparcener must be alive to form a coparcenary or to become a coparcener. What is material is the birth of a coparcener within the degree of the coparcenary and its extent. In the amended provision of Section 6, the term “daughter of a living coparcener” is not used anywhere. Rather, under Section 6 (1)(a), rights are given to daughters by birth, and such daughters have the same rights and are subject to the same liabilities in relation to the coparcener. The provision also states that any reference to a coparcenary shall include the reference to the daughter of a coparcener. Therefore, upon a plain reading of Section 6 (1), it is clear that there is no space to establish the principle that a coparcener through whom the daughter claims interest should be a living coparcener on the date of the amendment.
The Apex Court also partly overruled the decision of Danamma Surpur vs. Amar (2018) and observed that the Apex Court in Danamma granted equal rights to the daughter and held that certain observations were valid but the Apex Court couldn’t seem to agree with those parts of the decision which upheld the ruling of Prakash vs. Phulavati, and other decisions regarding statutory partitions. The Apex Court observed that there is a clear conflict of opinion in the decisions of Phulavati and Danamma when it comes to the matter of the living daughter of a living coparcener. In the latter case, the issue regarding the living daughter of a living coparcener was not specifically dealt with.
Furthermore, the Apex Court held that Section 6 of the Amended Act can be applied retroactively. It stated that the rights to coparcenary are bestowed upon a daughter from 9th September 2005, but it gets created from the birth of the daughter, and no other factor like a living coparcener is important for such devolution of interest. It also clarified that the Amendment Act, in its nature, is not an amendment but a mere substitution. The Apex Court held that the coparcener rights do not pass from a living coparcener to a living daughter. It rather passes from a father to a daughter. It observed that the Hindu joint family is an unobstructed heritage in which the right to partition is absolute and is created by simply the birth of a daughter. It is not at all relevant if the father of the daughter claiming coparcener rights is alive on the date of the commencement of the amendment or not. The Apex Court observed that the death of the daughter does not cease her rights to claim coparcenary rights in the property. Her rights pass on to her successive heirs or her nominee. The Apex Court stated that even if the notional partition had been effected before the 9th of September 2005, it doesn’t deprive the rights of a daughter to claim shares in the Hindu joint family property. Notional partition simply ascertains the rights of the parties and cannot be placed on the same footing as that of actual physical partition which finally divides the property and shares. The coparcenary property doesn’t cease to exist after notional partition but after actual partition. The Apex Court also ordered other courts to dispose of matters relating to such legal issues within three months of this decision.
Coming to the question of decrees, the Apex Court observed that a preliminary decree cannot be equated with a final decree as a preliminary decree doesn’t finally decide the rights of the parties through metes and bounds. It is the responsibility of the Court to consider supervening circumstances like amendments arising in the time between the passage of the preliminary decree and the final decree. If any such supervening circumstances arise having the potential of changing the final decree, then the Court is duty bound to give due consideration to such amendments and incorporate them within its decision in the final decree. Therefore, even when a preliminary decree is passed in a suit, a daughter can claim her coparcenary rights in the property. In terms of partition, the Court decided that a partition must be duly registered if effectuated after 20th December 2004, and any partition which is created through the decree of a court must be done through a final decree to be treated as effective and final. This decision was given to prevent fake partitions with an aim to attack the rights of the daughter to coparcenary property. Oral partitions can be given validity in certain circumstances, but the burden of proof of the genuineness of the oral partition falls on the defendant. This judgement finally overruled the previous impediments to women’s access to claims over coparcenary property and is therefore extremely progressive in its purview.
Arunachala Gounder vs. Ponnuswamy (2022)
In this case, the Supreme Court held that the self-acquired property of a Hindu male who dies without making testamentary disposition of his property will devolve by way of inheritance and not through succession. This simply means that the daughter will be entitled to inherit the self-acquired property of their deceased father and shall also have equal claim as sons over coparcenary or joint family property. It was also held that when a woman died intestate, the ancestral property which devolved on her from her father would be bestowed on her father’s heirs, and the property which devolved on her from her husband would be given to her husband’s heir if she dies issueless. This position taken by the Supreme Court after the decision of Vineeta Sharma vs. Rakesh Sharma (2020) further crystallised the rights of women over property and inheritance and eradicated any form of gender discrimination.
Conclusion
The journey of the decision of the legal issue regarding the retrospective application of Section 6 of the Hindu Succession Act is comprehensive and tumultuous. With many courts having differing opinions on one particular matter, it was necessary for the Apex Court to settle it once and for all like it did in the case of Vineta Sharma vs. Rakesh Sharma (2023). The decision of Prakash vs. Phulavati (2015), even though it was later overruled, formed a significant stage in the process of ascertainment of the important legal issue. Therefore, it is important to analyse the decision of the case to understand the process and rationale behind the final decision of the Apex Court on the substantial question of law.
Frequently Asked Questions (FAQs)
What is the final ruling of the Supreme Court regarding the material nature of a living father on the date of commencement of the Amendment Act 2005?
The final decision of the Supreme Court regarding this legal issue is that it is immaterial if the father was alive on the date of commencement of the Amendment Act of 2005 because the daughter becomes a coparcenary by birth.
Can Section 6 of the Hindu Succession Act 1956 be applied retrospectively?
While dealing with the question of whether the Section can apply retrospectively or prospectively, the Supreme Court noted that the Section is retroactive in nature as the daughter attains coparcenary by birth, and her claims do not affect any transactions done before 20th December 2004.
Can a court change the preliminary decree regarding partition in a final decree?
Yes. The court is duty-bound to consider supervening circumstances like amendments arising between the preliminary decree and the final decree. It must either amend the preliminary decree, issue a new preliminary decree or incorporate the changes in the final decree.
What is the difference between a notional and an actual partition?
Notional partition merely ascertains the shares of the coparceners or the parties and has no physical effect. Therefore it is deemed to be a legal fiction but actual partition is final as it actually and physically divides a property. Notional partition is affected by the death or birth of a new coparcener. Actual partition remains unchanged by such events.
References
- https://repository.nls.ac.in/context/nlsir/article/1042/viewcontent/Shivani_Singhal.pdf
- https://www.allahabadhighcourt.in/event/changingdimensionshindusect620112021.pdf
- https://districts.ecourts.gov.in/sites/default/files/sucession.pdf
- https://cja.gov.in/Blog/Coparcenary%20devolution%20Sh.%20B%20M%20Lal.pdf
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
