Home case analysis Vineeta Sharma vs. Rakesh Sharma (2020)

Vineeta Sharma vs. Rakesh Sharma (2020)

September 11, 2024

This article is written by Arya Senapati. It attempts to analyse the recent landmark case of Vineeta Sharma vs. Rakesh Sharma (2020), which finally settled the question of the retrospective effect of Section 6 inserted to the Hindu Succession Act, 1956 by the Hindu Succession (Amendment) Act, 2005. The analysis involves the factual matrix, legal issues, arguments advanced, judgement, other related cases, and legal principles involved in the case.

Table of Contents

Introduction

Affirmative action is one of the primary constitutional principles enshrined in the part relating to fundamental rights in the Constitution of India. Article 14 of the Indian Constitution guarantees the right to equality and Article 15 prevents discrimination on various grounds. In the context of gender, the Constitution guarantees gender equality and freedom from all forms of discrimination against women. To achieve these goals, the Constitution necessitates the creation of special laws and policies that shall function as affirmative action aimed at reducing years of systemic oppression and inequalities meted out to women.

In the arena of property rights, Hindu joint family property, which is often referred to as coparcenary property, is governed by the Mitakshara system of law. This system is orthodox in its approach and doesn’t allow women to be a part of the coparcener and thereby limiting their interest in the property. This idea was reflected in the initial Hindu Succession Act, 1956 which dealt with intestate succession (succession of the property of a person who dies without any testamentary disposition) and covered only the interests of male coparceners.

To correct this gendered injustice, the Parliament brought about the Hindu Succession (Amendment) Act, 2005 which replaced the Section 6 of the original Act. The new amended provision allowed coparcenary rights and interests to women and ensured that they had equal interest in the property as their male counterparts. It stated that daughters, just like sons, shall attain coparcenary rights by birth and will be subject to the same rights and liabilities towards the property as sons. The provision also dealt with a lot of other aspects in terms of the applicability of the provisions.

With the introduction of the Amendment, the courts have welcomed this as a progressive step but it has also led to a lot of confusion in the field of judicial interpretation. The primary question that the courts dealt with was whether the provision would be applicable retrospectively or prospectively. As a general rule, all amendments have a prospective effect unless the provision expressly or impliedly mentions the possibility of retrospective application. This confusion over interpretation led to differing views by different courts and benches. While some held that it could be retrospectively applied, the majority denied the idea.

It led to a series of cases like Prakash vs. Phulavati (2015) and Danamma vs. Amar (2018) which also dealt with other questions like ‘Whether it is necessary for both the father and the daughter to be alive during the commencement of the amendment for the applicability of the provisions?’ and ‘Can the provisions be applicable to pending cases before courts after the amendment commenced?’. While the judgements were in conflict with each other, the final decision on the questions or the final interpretation came in the case Vineeta Sharma vs. Rakesh Sharma (2020), in which the Supreme Court clearly stated that the provision is neither retrospective nor prospective in nature; it is rather retroactive in nature and must be construed or applied accordingly. It also clarified that there is no necessity for both father and daughter to be alive during the commencement of the law for the law to be applicable to them.

Historical background

The Hindu idea of dharma is influenced by the principles of Vedic Aryans. In terms of Hindu laws, there are two primary schools, which are Mitakshaa and Dayabhaga. Mitakshara is divided into Benaras, Mithila, Maharashtra, and Dravida. Mitakshara School therefore applies region-wise.
When Hindu law states are silent on certain aspects, the judicial decisions fill those gaps and therefore Hindu law has never been static but rather progressive. As time passed, the need for codification was felt, especially for women’s rights, so as to eradicate certain anomalies and unscrupulous principles.
Constitutionally, women were given equal status and the written law was subject to amendments from time to time to reflect constitutional ideals. The most recent amendment was the 2005 amendment, which granted equal rights to daughters and sons in matters of succession of coparcenary property.

Facts of the case

In this case, the deceased coparcener is Shri Dev Dutt Sharma, and he left one widow, one daughter, and three sons after his death. He passed away on the 11th of December, 1999. One of his sons who was unmarried, also died on 1st July, 2001. Post this, the daughter, Vineeta Sharma, who is the petitioner in this case, filed a suit claiming 1/4th share in the coparcenary property.

The other members of her family denied her claim and stated that, considering her father passed away in 1999, which is much before the amendment came into force, she cannot be held to be a coparcener and therefore has no entitlement over the property of the family. They also argued that, considering she was married, she has no claim left to the family property as she is no longer a member of the joint family. Vineeta Sharma sued her brothers, namely Rakesh Sharma and Satyendra Sharma, alongwith their mother. She claimed coparcenary rights to the joint family property based on her birth into the family. The law guarantees and considers birth as a valid source of attaining coparcenary rights.

The plaintiff was aggrieved by the decision made by the Trial Court which denied her equal shares in the coparcenary property. She challenged the decision through an appeal to the Delhi High Court. The Delhi High Court upheld the decision of the Trial Court, which held that the Section 6 of the Hindu Succession (Amendment) Act, 2005, will not be applicable to the current situation as the father of Vineeta Sharma was not alive during the commencement of the amendment. This decision was based on the ruling of Prakash vs. Phulavati (2015) in which it was held that both the father and the daughter must be alive during the commencement of the Amendment of 2005 for the amended provisions to be applicable. This decision aggrieved the daughter, owing to which she filed an appeal to the Supreme Court of India to reconsider the matter and reach a judgement.

Trail of cases and decision

To understand the judgement of this case, it is important to understand the previous judicial journey of the legal issue at hand, which is regarding the retrospective application of the provisions of the Section 6 of the Hindu Succession Act, 1956, as amended by the 2005 Amendment. There are largely two cases in which the Court substantiated its opinion on the matter and that formed the crux of the issue. Those two cases that must be examined are the cases of:

Prakash vs. Phulavati (2015)

In the case of Prakash vs. Phulavati (2015), Phulavati, the daughter of the deceased had claimed her share in the joint family property based on her status as the daughter of the coparcener. In a suit for partition and separate possession, she claimed a 1/7th share in the self-acquired property of her deceased father. During the pendency of the suit, the Hindu Succession (Amendment) Act, 2005, was passed, which conferred equal coparcener rights to sons and daughters and stated that daughters attain the right to be considered as a coparcener by birth into the family. After the amendment, Phulavati claimed equal shares in the coparcenary property. The Trial Court denied equal shares to Phulavati. This decision was challenged by her in the Karnataka High Court.

The grounds of her challenge were that, by virtue of the new amendment, she is an equal coparcener and has equal rights and liabilities with respect to the coparcenary property as do her brothers. Based on this principle, she is entitled to the same number of shares as her brothers. The brothers, originally the defendants, argued that the amended provision would not be applicable in the case as the father of the plaintiff died before the commencement of the amendment and therefore it must be construed as the old provision and not the new one. As per the defendants, the only one that was applicable on the date of opening of the succession will be the one that shall be used to ascertain the shares of the plaintiff.

The High Court decided in favour of Phulavati, the plaintiff and held that even when suits are pending during the commencement of the amendment, the amended provisions shall be applicable to ascertain the final decision on the matter, as it was held by the Apex Court in the case of G. Sekar vs. Geetha and Ors. (2009). The Apex Court, in the previously mentioned decision, held that the changes in a law will inevitably apply to suits that are pending and such applicability will not be considered to have a retrospective effect. Therefore, based on the amended provisions, the daughter, who is the plaintiff in this case, is entitled to an equal share of the property and is a coparcener by virtue of her birth. It also stated that it is immaterial whether the father was alive during the commencement of the Act or not. The only possible exception to this principle is a partition that has effectively taken place before the date of 20.12. 2004 and has attained finality by virtue of a registered partition deed or a court decree, which must be final in nature. The current case, however, doesn’t fall under the exception.

Aggrieved by this decision, the defendant filed an appeal to the Supreme Court. They challenged the retrospective application of the provision by the High Court and also prayed that the fact that her father was not alive during the commencement of the amendment must be a ground for detaching her status as a coparcener. The respondent, Phulavati, argued that since the legislation is a social legislation aimed at uplifting women and allowing them equal access to property rights, it is important to place emphasis on the retrospective application of the provision for meeting the ends of justice and fulfilling the objectives of the legislation.

The Supreme Court confined its decision to the issue of retrospective application of the provision and stated that the 2005 Amendment would not be applicable to this case as the father of the respondent was not alive during the commencement of the amendment. It is important for a coparcener to be alive for another person to attain the rights of coparcenary from them. Therefore, it can be said that when the amendment took place, she was not the daughter of a coparcener, as her father had passed away before the amendment and she cannot be treated as a coparcener because of the said reason.

The Apex Court upheld the principle that it is a general rule to apply an amendment retrospectively unless and until a contrary intention appears either expressly or impliedly from the provision to enable retrospective application. While interpreting such applicability, the Court must limit itself to a plain reading of the language of the provisions and must constitute a harmonious construction of the content and context of the provisions. According to the Supreme Court, the text and language of the provisions of Section 6 of the Hindu Succession Act, 1956, leaves no ground for a different interpretation that allows retrospective application. The provision clearly states that the rights of coparcenary interest devolve upon a daughter on and from the date of the commencement of the amendment. No contrary intention appears from the plain reading, either expressly or impliedly, of the provisions of the Act.

The Supreme Court says that even if the legislation is a social legislation aimed at uplifting women, the general rule of prospective application cannot be altered solely due to that mere fact. Even social legislations do not have any retrospective application unless and until it is expressly or impliedly mentioned in the provision. As per the Supreme Court, the interpretation of the provision must be based on a plain reading of the context and language of the provision and in case of any ambiguity, a rational meaning must be given to the provision by the court itself. When the conflict is between the meaning of a provision and an explanation, harmonious construction must be afforded to the interpretation of the provision. The true meaning in such a case must be derived from the object and intention of the legislature while drafting the legislation.

Based on these rationales the Supreme Court held that the rights under the amendments are applicable only to living daughters of living coparceners as of the date of commencement of the amendment, i.e. 9th September, 2005. It is immaterial when the daughter is born. The life of the father during the commencement of the amendment is the only material factor. Therefore, the respondent, Phulavati, was not entitled to equal shares as she was not a coparcener. The decision of the High Court was reversed.

Danamma Alias Suman Surpur and Anr. vs. Amar and Ors (2018)

In this case, the deceased, Mr. Gurlingappa Savadi, left behind a widow and four children, out of whom he had two sons and two daughters. The appellant, Danamma, was one of the daughters of the deceased. In the year 2002, Amar, the son of one of the deceased’s sons, filed a suit for a partition and for separate possession of the property. He denied the claims of both of the daughters towards an equal claim to the property on the ground that both of the daughters were born prior to the enactment of the Hindu Succession Act, 1956, and therefore, they cannot claim the status of a coparcener or any interest in the property. He also argued that, considering they had obtained dowry during their marriage, their share was fulfilled effectively.

The Trial Court rejected the argument regarding the dowry but accepted the fact that the daughters were not to be considered as coparceners because their birth was before the enactment of the Hindu Succession Act, 1956. The High Court upheld the decision of the Trial Court. The Trial Court delivered its judgement in the year 2007 but during the pendency of the suit, the 2005 Amendment was passed, which crystallised the coparcenary rights of the daughters but neither did the Trial Court nor the High Court paid any heed to the amendment. Aggrieved by the decision of the High Court, Danamma appealed to the Supreme Court. Firstly, the Apex Court dealt with the issue of whether daughters can be denied their shares of the coparcenary property on the ground that they were born prior to the enactment of the Act. It referred to its previous decisions and interpreted Section 6 in the light of the decision of the Court in the case of Prakash vs. Phulavati (2015). It stated that the language of a provision must be interpreted through a plain reading of the text and the context. By applying this rule, it is clear that the Section 6(1) of the Hindu Succession Act, 1956, is prospective in nature, but all other subsections will have retrospective effect.

The Court also stated that an attempt must be made to harmoniously construct the interpretation of the provisions based on the intention of the legislature. In this case, the intention of the legislature is to provide women with equal access to property belonging to a Hindu joint family. Based on this rationale, the Apex Court held that the daughters must be given their shares in the property because they were alive during and after the commencement of the amendment. Therefore, the court held that the fact that a daughter is alive during the commencement of the amendment is material enough to ascertain their shares in the coparcenary property. The next issue that the Court dealt with was whether daughters have equal access to coparcenary property and do they attain coparcenary by birth just like sons. By literally interpreting the plain language of the provisions, the Court stated that the daughters do attain coparcenary in the same way as sons and therefore have access to equal shares as sons. Considering that the intention behind the legislation is to create an equal ground for women to attain coparcenary, it must be upheld that they shall attain coparcenary by birth in the same manner as sons.

This decision created major confusion as the judgement upheld the ratio of the Phulavati case, which stated that in order for a daughter to be a coparcener in a Hindu joint family, both the father and the daughter must be alive during the commencement of the amendment, thereby, strengthening the principle that the amendment is only applicable to the living daughters of living coparceners. The ambiguity is that in the case of Danamma, the father of the appellant had died in 2001, which was prior to the amendment but even after that, the Supreme Court granted equal shares to the daughter. There was a clear conflict between the upholding of a particular principle and the ultimate decision taken by the Court. The Apex Court also did not provide any reasoning behind taking such a decision by applying an exception to the general principle of prospective application.

Ganduri Koteshwaramma & Anr. vs. Chakiri Yanidi & Anr. (2011)

This case dealt with the legal issue of whether the amended provisions will be applicable to a matter that is pending before the court. In this case, the Trial Court was dealing with a matter of partitional and separate possession in which the appellant, the daughter of the deceased, had claimed shares. The Trial Court had already passed a preliminary decree in the matter but the final decree was awaited. In the meantime, the 2005 Amendment was enacted, owing to which, the appellant amended her claims and demanded equal shares in the coparcenary property. Her claim was denied on the ground that she cannot be considered a coparcener because of the fact that her father died prior to the enactment of the amendment.

Aggrieved by the decision of both the Trial Court and the High Court, the appellant challenged the decision in front of the Supreme Court on the ground that the partition was not final as a final decree was awaited by the parties and therefore Section 6 of the amended Act must apply to the matter to ascertain equal shares for her. The Supreme Court stated that a preliminary decree in a partition suit is merely one stage in the decision making process. Until and unless a final decree is passed, the partition is not considered to be ultimate. Therefore, wherever any supervening circumstances arise during the pendency of a suit in which the final decree has not been passed, it is the duty of the court to consider such a supervening circumstance, i.e., an amendment and include it in the final decree. Therefore, the Apex Court held that equal shares must be given to the daughter in the final decree. The Court also has an option of amending the previous preliminary decree or passing a new preliminary decree.

Considering how these three cases led to a lot of confusion regarding various legal issues, it was important for the Apex Court to ascertain the issues once and for all in the case of Vineeta Sharma vs. Rakesh Sharma (2020).

Legal issues involved

There were very substantial questions of law that the Apex Court had to address in the case of Vineeta Sharma vs. Rakesh Sharma (2020) to clear out the air of confusion on various matters:

Whether Section 6 of the Hindu Succession Act, 1956, as amended by the Hindu Succession (Amendment) Act, 2005, can be applied retrospectively or prospectively?
Whether it is necessary for both the father and the daughter to be alive during the commencement of the amendment for the provisions to be applicable while ascertaining the shares?
Whether the amended provisions can be applied to a matter pending before a court during the commencement of the amendment?

These issues were considered by the Apex Court in its judgement.

Judgement of the Supreme Court

The judgement is a comprehensive piece of decision which must be divided into various parts for a better understanding of the principles.

Reference to the previous/ pending decisions

The Supreme Court first reffered to the question regarding the interpretation of Section 6 of the Hindu Succession Act, 1956 as amended by the Hindu Succession (Amendment) Act, 2005 to a larger bench with respect to the confusing and conflicting views taken by two division benches of the Apex Court in the cases of Prakash vs. Phulavati (2015) and Danamma vs. Amar (2018). The Apex Court first referred to multiple previous decisions on similar questions in its judgement.

The Apex Court took a note of the case of Lokmani & Ors. vs. Mahadevamma & Ors. (2018), in which the Karnataka High Court held that the Section 6 as amended by the 2005 Act must be deemed to have existed since the day of 17.6.1956 which is the date of commencement of the original Hindu Succession Act, 1956. Therefore, it held that the amended provisions are retrospective in nature and could be applied retrospectively to grant equal coparcenary rights to the daughters. It stated that when the daughters are denied rights in the coparcenary property and the suit is pending, then it must be decided by virtue of the amended provisions as they shall be applicable on such matters. The legislation has removed inequality between sons and daughters in terms of access to coparcenary property. The Karnataka High Court further stated that oral partition and partition effected through unregistered deeds are to be removed from the definition of the term “partition,” which has been mentioned in the explanation to the Section 6(5). The final decision was pending before the Supreme Court.

Next, the Apex Court noted that in the case of Balchandra vs. Smt. Poonam & Ors. (2015), the question regarding the retrospective effect of Section 6 as substituted by the 2005 Act was considered. In this case, the father, who was the original coparcener of the Hindu joint family, passed away before the 2005 Act came into force and the question that has arisen ever since is whether can a daughter be considered as a coparcener of the Hindu joint family property even when her father was not alive during the commencement of the amendment Act. The decision in this case was pending and was supposed to be decided by virtue of the principles laid down by the decision of the Apex Court in this matter.

In the case of Sistia Sarada Devi vs. Uppaluri Hari Narayana & Ors. (2018) Special Leave to Appeal (C) No(s). 38542/2016, the question was regarding the fact that wherever a final decree is pending before the court in a partition matter,, can the interest ascertained by daughters on the coparcenary property be re-distributed based on the amended provisions of Section 6 of the Hindu Succession Act, 1956.

In the matter of Girijavva vs. Kumar Hanmantagouda & Ors. (2019) SLP (CIVIL) Diary No(s). 3401/2019, the question involved was whether the Section 6 as amended by the 2005 Act would be applicable prospectively in the case of the father’s death being before the commencement of the amendment and whether the equal shares claimed by the daughters could be denied on this ground.

In the matter of Smt. V.L. Jayalakshmi vs. V.L. Balakrishna and Ors. (2019), the case arose when a partition of a deceased father’s ancestral property was sought by the petitioner in a suit filed in 2001, wherein the Trial Court granted 1/7th share to all the parties but it was later modified and 1/35th shares were given to the petitioner and other daughters based on the decision of the case of Prakash vs. Phulavati (2015).

In the matter of Indubai vs. Yadavrao (2019) and B.K. Venkatesh vs. B.K. Padmavathi (2020) similar questions were raised regarding the status of daughters as coparceners and the grant of equal shares to them.

The Supreme Court recorded that in the decision made by a division bench of the Apex Court in the case of Prakash vs. Phulavati (2015), it was held that Section 6 as amended by the 2005 Act will not have retrospective operation and it shall only apply to cases where both the coparcener and his daughter were alive during the commencement of the Amendment Act of 2005. The division bench had also stated that the explanation attached to Section 6(5) necessitates the prerequisites of a valid partition to be registered or to be made through a decree of court but it can have no application to a statutory notional partition made on the opening of succession as provided by the unamended Section 6 of the Hindu Succession Act, 1956. The division bench had stated that the fictional/ deemed statutory partition must be assumed to have occurred to determine the shares of the deceased coparceners which is not discussed under the proviso of Section 6(1) or Section 6(5). The prerequisite of registration is inapplicable to the partition which is governed by the process of law and thereby the provisions of Section 6 as amended by the 2005 Act were held to be prospective by the division bench.

In the case of Danamma, the Apex Court had held that the amended provisions of Section 6 provide absolute coparcenary rights provided by Section 6 to daughters and any coparcener, which also includes a daughter, can call for partition of the coparcenary property. It granted equal shares to the daughters as the sons yet it upheld the ratio in the Phulavati case. This has been deemed to be ambiguous in nature.

Arguments of various counsels

The Supreme Court then refered to the various arguments made by different counsels on the matter. The Apex Court had sought an opinion from the government as well as appointed an amicus curiae to help ascertain the matter in conflict once and for all.

Arguments of amicus curiae

Shri Tushar Mehta, learned Solicitor General of India, representing the Union of India, argued that the intention behind the amendment was to provide equal coparcener status to daughters so that they achieved equality with sons. The exclusion of daughters from coparcenary property is an oppressive act that paves the path of discrimination and violates fundamental rights afforded by the Constitution. Even though the Amendment Act of 2005 is not retrospective in nature, it surely is retroactive in its operation as it allows daughters to exercise their rights to be a part of the coparcenary from the commencement of the 2005 Act. Coparcenary accrues from birth and therefore it is a daughter’s birthright. He also clarified that the status of a coparcener being given to a daughter will not have any effect on a partition executed before 20th December, 2004 which is the date on which the bill was tabled before the upper house of Parliament. He argued that the Mitakshara system of law is not only discriminatory towards women but also oppressive. Therefore, with effect from 5.9.2005 which is the date of commencement of the amendment, all daughters attained the status of coparcener by birth and got the same rights and liabilities as sons.

He argued that it was also important to note that, after the amendment, the devolution of coparcenary through survivorship was abolished and currently, devolution happens through intestate succession or testamentary succession. Referring to the decision made by the Apex Court in the Prakash vs. Phulavati (2015) case, he argued that the fact that the decision demanded coparcenary rights to accrue to a living daughter from a living father is against the very idea of coparcenary by birth.The death of the father is only material when it comes to the succession of his interest in the coparcenary property, as per Section 6(3) of the 2005 Amendment. The death of a coparcener doesn’t end the coparcenary but rather, notional partition is brought about to ascertain the interests. New coparceners also get added by birth until the time a final partition takes place. Interests in coparcenary property therefore continue until absolute partition is conducted. When the phrase “daughter of a coparcener” is used in Section 6, it does not mean the “daughter of a living father.” Lastly, he argued that any coparcener who relies upon a family settlement or oral partition has to prove the same through valid evidence in the form of reliable documents.

Shri R. Venkataramani, learned senior counsel/amicus curiae, argued that there exists no dispute between the judgements of Phulavati and Danamma, as both of these decisions state that there must be a prospective application of Section 6 as the amendment is prospective in nature. The daughter gets the status of coparcener under the amendment, not because she was born prior to the amendment. By the language of the amended Section 6, no intention for retrospective application applies and even though the intention is to create equality, it doesn’t concern itself with reopening past transactions. He also argued that Section 6 does not intend to reopen any oral partitions or family settlements. If the law treats a daughter born prior to the amendment as a coparcener, it will lead to various confusions in the operation and functioning of the law. As per the learned counsel, the outlook of Section 6 is futuristic and foreseeing and therefore it must be construed as such. .

Shri V.V.S Rao, learned senior counsel and amicus curiae argued that the rationale behind the decision of the Apex Court in Prakash vs. Phulavati (2015) has been upheld in the decision of Mangammal @ Thulasi and Anr vs. T.B. Raju and Ors, (2018) , in which it was decided that there should be a living daughter of a living coparcener to receive property on the date of commencement of the amended provisions. When one looks at Section 6(1)(a) it provides a daughter with the status of a coparcener through birth and through such a declaration, a daughter becomes part of a coparcenary and therefore, the question of retrospective or prospective application should not arise because even if a daughter is born before or after 2005, she is still a coparcener by birth. The rights accrue after the amendment. The legislative history of Section 6 makes it clear that the Parliament intended to eradicate the inequalities in accession to property between sons and daughters and this intention vitiates if the necessity of a living father and living daughter is upheld. As per the learned counsel, the necessary requirement for attributing the status of a coparcener to a daughter is that there should be a coparcener from the date of commencement of the 2005 Amendment.

Arguments by appellant

Shri Amit Pai, learned counsel argued that the golden rule of interpretation must be adopted to interpret the provisions. The Amendment to Section 6 relates back to the enactment of the original Act of 1956. A fictional partition on the death of a coparcener cannot be deemed to be equal to an actual partition, which decides the shares once and for all. The Statements of Objects and Reasons clearly mention that daughters cannot be deprived of their right to equality and therefore, the provisions of Section 6 must be fully effective. The decision made by the Apex Court in the Phulavati case is not correct. The language of the provisions does not necessitate the living daughter of a living father to attain a coparcenary. No additional words can be added or read into a statute. The Court has the power to simply repair errors. The provision consists of all daughters, irrespective of whether their fathers are alive on the date of the commencement of the amendment or not.

Shri Sameer Shrivastava, learned counsel, argued that the term coparcener is not defined anywhere in the Hindu Succession Act, 1956 but coparcener has been considered to be a body narrower than the joint family as it consists of those people only who have taken birth into it or have attained claims in the coparcenary property and therefore can seek a partition when they want to. Daughters are entitled to shares, subject to the restrictions imposed by Section 6(1) and 6(5). The concept of survivorship has been abolished and the current modes are only through testamentary or intestate succession, wherein a Hindu passes away before the enactment of the Amendment Act. The decision made by the bench in the case of Prakash vs. Phulavati (2015) which necessitates the principle of a living daughter of a living father, is absolutely ambiguous and cannot be sustained in the eyes of the law. Coparcenary status is given by birth and the only possible exception to that rule can be adoption.

Ms. Anagha S. Desai, learned counsel, argued that Section 6 creates equality of interests between sons and daughters of a Hindu joint family on and from 9th September, 2005. The statement given in Section 6 that the daughter of a coparcener will have equal rights and liabilities as that of a son is unambiguous and unequivocal. The necessity of a living father is irrational, as it defeats the entire purpose of the provision.

Arguments of respondents

Shri Sridhar Potaraju, learned counsel, contended that the decision of Prakash vs. Phulavati (2015) provided the right construction of the law. He argued that daughters who have been married cannot be recognised as members of their father’s joint family and the fact that they used to be treated as Class I heirs did not make them members of their father’s joint family. As per the learned counsel, the Hindu coparcenary is a smaller body as compared to the Hindu joint family. The daughter of a coparcener has to mean the daughter of a living coparcener. In a situation of a statutory partition, severance of jointness of status and settlement of shares is envisioned.

He argued that the rights conferred by survivorship granted prior to the amendment couldn’t be taken away by the amended provisions. Section 6 in its amended form couldn’t be made applicable on a daughter whose father was not alive during the introduction of the amendment. Coming to the matter of preliminary decree, he argued that a preliminary decree could be used to determine the shares of parties and when the determination of individual shares was allotted to parties through a preliminary decree, it was considered to be final. The only step that was needed to be taken after a preliminary decree was the apportionment of shares through metes and bounds as per the preliminary decree passed.

Considering all these factors, he summed up his arguments by stating that the effect of Section 6 must be prospective in its application.

Coparcenary and Joint Hindu Family

Based on the characteristics of a coparcenary and Hindu joint family, the Supreme Court interpreted that:

A coparcenary is a smaller body as compared to the Hindu joint family. While a joint family consists of all lineal descendants and their wives and unmarried daughters, it ceases to exist after the separation of assets.
Coparcenary consists only of a propositus and three lineal descendants. Before 2005, it consisted of sons, grandsons and great grandsons. The property of a coparcenary is therefore one that is inherited from a father, grandfather, or great grandfather.
As per the Apex Court’s ruling, coparcenary heirs get rights by birth or by adoption. Earlier, a woman was not a coparcener but was part of the joint family. The amendment recognised the coparcenary rights of daughters by birth, just like sons. Only a coparcener has the right to demand partition.

Formation of coparcenary

The Supreme Court stated that a coparcenary is based on common ownership by coparceners. In an undivided coparcenary, shares are uncertain. There’s no precision on the extent of the share. Share is fluctuating as it depends on death or birth in the family.
The Hon’ble Court reffered to the decision of Sunil Kumar & Anr vs. Ram Prakash & Anr. (1988), where it was discussed that a Hindu joint family is bound by the principles of Sapindaship which are essential to the institution of the family. Coparcenary only consists of people who have an interest in the property and can enforce partition and attain status by birth.
Similarly, the Apex Court noted that in Sheela Devi & Ors. vs. Lal Chand & Anr (2006), it was held that whenever the property of a coparcenary goes into the hands of a sole individual transiently, it becomes his property but once a son is born, the coparcenary is revived. Similar observations were made in Dharma Shamrao Agalawe vs. Pandurang Miragu Agalwe & Ors. (1988) which stated that a joint family property retains its character even after being in the hands of a single surviving coparcener but once a son is born or adopted, the coparcenary survives.
The case of Controller of Estate Duty Madras vs. Alladi Kuppuswamy (1969), recognised certain characteristics of a Hindu coparcenary. They are the lineal male descendants upto third generation from the coparcenary, the members have the right to demand partition, until partition, each member has ownership over entire property jointly, possession and deriving of benefits from the property is mutual, no alienation of property without consent of all coparceners, the interest of the deceased ends on death and mingles with the property.
As per the Apex Court’s ruling, a coparcenary is a creation of personal law and therefore it cannot be formed by the collusion of parties except in the case of a reunion. It is largely a body corporate or a family institution. Outside the group of coparcenaries, there are other people who form the joint family. The important feature of a coparcenary is aggregate ownership and the fluctuation of shares.
In Vallikannu vs. R. Singaperumal and Anr (2005), it was reiterated that in a coparcener, the shares of each individual fluctuate from time to time depending on the death or birth of coparceners. No individual member of the joint family, while it persists, should be able to predict his exact shares. A coparcener has the: “right by birth, right of survivorship, right to partition, right of joint possession and enjoyment, right to restrain unauthorised acts, right of alienation, right to accounts and right to make self acquisition.”
In Rohit Chauhan vs. Surinder Singh & Ors., (2013), it was held that a coparcener is someone who has equal claims with other members of the coparcenary in terms of inheritance and access to the estates of a mutual ancestor. A coparcener simply has an undivided interest in a coparcener property and has no definite shares.
In the case of Katama Natchiar vs. Srimat Rajah Moottoo Vijaya Raganadha Bodha Gooroo Swamy Periya Odaya Taver, (1863), it was held that the actual partition leads to a coparcener being entitled to a definite share. Until the actual partition, the interest remains undivided.
In Bhagwant P. Sulakhe vs. Digambar Gopal Sulakhe & Ors, (1986), it was held that mere severance of the status of a joint family doesn’t end the coparcenary or common undivided interest in the coparcenary property until an actual partition is effected. In Shankara Cooperative Housing Society Ltd. vs. M. Prabhakar & Ors. (2011), it was held that coparcenary is bound by joint ownership and a suit filed for recovering a property is for the advantage of all the joint-owners. Co-ownership is vitiated only upon actual partition and division occurs.

Based on these cases, the Apex Court ruled that a coparcenary remains undivided until actual partition takes place. Finality of shares is effected through actual partition and not notional partition. Till actual partition, the shares remain undivided.

Unobstructed and obstructed heritage

The Apex Court felt it necessary to refer to the concepts and history of unobstructed and obstructed heritage. It made the following observations on those concepts:

Mitakshara coparcenary has two types of heritages. Unobstructed heritage is also referred to as “apratinbandha daya” and obstructed heritage or “sapratibandha daya”. Whenever a right is created by virtue of birth, it is known as unobstructed heritage. In an unobstructed heritage, the right occurring at birth is acquired from the property of male ascendants. In a situation where the coparcener passes without leaving behind a male heir, the interest is not acquired by birth but by virtue of there being no male descendant and such a right is an obstructed heritage. It is referred to as obstructed because the creation of the right is influenced or obstructed by the life of the owner. Only upon death does an obstructed heritage take place under Section 6, the right is conferred by birth and therefore it is an unobstructed heritage. As per the Apex Court, the right does not depend on the death of the owner and therefore, the need for a coparcener father to be alive on 9.9.2005 is not necessary as per the provisions of Section 6.

Section 6 of the Act of 1956

Coming to the interpretation of the most contentious provision, the Apex Court stated in it’s ruling that Section 6 deals with the devolution of rights in the coparcenary property of the Hindu joint family, which is governed by the Mitakshara legal system. The original version of the provision denied the application of the rule of succession on Mitakshara Coparcenary property and stated that the interest of a coparcener male Hindu who dies post the enactment of the 1956 Act will be ascertained by the rules of survivorship and devolve upon the surviving members of the coparcenary. The exception provided was that if a deceased had left a surviving female relative in Class 1 or a male relative in that class who claimed through a female relative, such an interest would devolve by testamentary or intestate succession to ascertain the shares of a deceased coparcener. Later on, this gendered discrimination was envisaged to be removed via substituting the provision of Section 6 through the 2005 Amendment Act.

The Apex Court observed that post the amendment, a daughter is given the status of a coparcener in the same manner as a son by birth and is subject to the same rights and liabilities as a coparcener. The provision in Section 6(1), however, states that the provisions of the section will not invalidate any disposition or alienation made before 20.12.2004. The amendment makes it clear that it intends to do away with the discrimination. In many states, various state amendments were also made to extend equal rights to daughters.

The amended provisions provide that on and from the date of commencement of the amendment, the daughter is conferred with the right of coparceners in the same manner as the son. Section 6(1)(a) deals with the concepts of unobstructed heritage as envisaged in the Mitakshara Coparcenary. Section 6(1)(b) confers equal rights to daughters as sons. Even though the rights can be claimed from the date of commencement of the amendment, the provisions are retroactive in nature and must be applied retroactively. The benefits conferred by the provisions are based on an antecedent event.

Based on the above rationale, the Apex Court held that while a prospective statute is applicable from the date of enactment and envisions new rights, a retrospective statute functions backwards and takes away or affects vested rights acquired through existing laws. A retroactive statute, on the other hand, does not operate retrospectively but operates in futuro but its operation is based on a character or status that has arisen earlier. Since the provisions provide rights by birth, which is an antecedent event, the provision is retroactive.

Clearing the air of confusion, the Supreme Court stated that in case of the death of a coparcener after 9.9.2005, succession is not governed by survivorship but is governed as per the Section 6(3)(1). The provision to Section 6(1) and (5) saves any partition effects before 20.12.2004. The explanation however, states that partition is recognised only if it is done through a registered deed of partition or by a decree of court.

The concept of uncodified Hindu law as envisaged in unobstructed heritage is given shape in the provisions and therefore, it is not at all necessary for the father of a daughter to be living on the date of amendment for her to receive the rights of a coparcener. The daughter simply enters into the coparcenary as a son by taking birth before or after the Act. These rights can only be claimed from the date of amendment, i.e., 9.9.2005, while saving the partitions made before 20.12.2004.

Effect of enlargement of daughter’s rights

As per the proviso to Section 6 prior to the amendment of 2005, when a coparcener dies, leaving behind a female relation of a Class 1 heir or a male descendant claiming through such a Class 1 female heir, the daughter was one of the heirs. Section 6, in its amended version, presupposed the existence of a coparcenary. It enlarges only the rights of the daughter and the rights of all other relatives remain the same and unaffected, as mentioned in the proviso.

On this concept, the Supreme Court ruled that no coparcener has a fixed share of the property. The shares keep fluctuating based on the death or births of new coparceners. This principle is enshrined in the provisions of Section 6. There is no disruption in the coparcenary by the fictional or notional partition. Notional partition is used merely to ascertain the shares of a deceased coparcener that would have been assigned to him when the actual partition would have taken place.

Acquisition of rights in coparcenary property

Interest in a property is acquired by birth and devolution takes place on the death of a coparcener. Earlier, devolution was governed by survivorship but after 1956, women could also inherit in situations/ contingencies mentioned in the proviso of the unamended Section 6. The notional fiction deemed daughters as coparceners. Coparcenary is by virtue of birth or adoption and not by devolution of interest. The Supreme Court stated that it is unable to accept the contention that a living father passes coparcenary rights to a living daughter because the right to coparcenary does not accrue from the death of the father or any other coparcener for that matter. It is simply governed by birth.

It was contended that if the parliament’s intention was to refer to incidents of births prior to 2005, it would not have enacted the proviso. When the provisions are read together, when the right is conferred upon a daughter of a coparcener by birth, in the same manner as sons, it becomes necessary to save prior dispositions or alienations before 20.12.2004. Therefore, even though the right accrues from birth, it can be asserted only from 9.9.2005. The proviso merely saves the past transactions from any sort of invalidation.

It was heavily contended that if a daughter is given coparcenary rights by birth and is deemed to be a coparcener from a point in the past, it will affect the normal operation of the law and lead to multiple uncertainties. In the opinion of the Apex Court, no such uncertainty will arise as the Section 6 is governed by the principles of the Mitakshara coparceners laws, which makes the shares of surviving coparceners uncertain up until and until the actual partition takes place. No fixed share is held by any party and the interest remains undivided until the actual partition takes place. The conferment of rights from a prior date is not to resurrect the past but to simply recognise the antecedent event as the mode of conferment of rights prospectively. Such an act surely enlarges the size of the coparcenary and prevents the coparcenary from treating the daughters unequally.

In Prakash vs. Phulavati (2015), the father passed away in 1988 and the daughters filed a suit in 1992 for partition, which was dismissed in 2007. The High Court applied the amended provision and treated daughters equally. The Supreme Court later on held that the provision is not retrospective. The necessity of partition being made through registration was held to have no effect on deemed or notional partition on the initiation of succession as per the unamended provision to Section 6. It was held that the rights conferred by the amendment are only applicable to living daughters of living fathers as of 9.9.2005.

The Supreme Court, in its judgement in Vineeta Sharma vs. Rakesh Sharma (2020) opined that may be the previous decision did not pay any attention to how a coparcenary is formed. It is not important for a coparcener to be alive to form a coparcener or become a coparcener. Birth within certain degrees is the only relevant factor. Survivorship is only a mode of succession and not a requirement for the creation of a coparcenary. Hence, the living coparcener necessity was overruled.

In the case of Mangammal vs. T.B. Raju and Ors. (2018), the Apex Court considered the provisions enacted in the State of Tamil Nadu in the Hindu Succession (Tamil Nadu Amendment) Act. 1989, which was made effective from 25.3.1989 and added Section 29A, which was held to be correct regarding succession by survivorship. Section 29A provided the same interests to daughters as sons in the coparcenary property. The provisions were kind of similar, except 29A(iv) treated married daughters discriminatorily. The provisions were made inapplicable to daughters who married before the date of commencement of the 1989 Amendment. In Section 6 of the Amendment Act of 2005, even the discrimination against married daughters was removed. However, in this case, the Apex Court upheld the decision of Phulavati and Danamma by upholding the requirement of a living father for a living daughter. Such an opinion cannot be accepted.

In the case of Amar vs. Danamma (2018), the Apex Court upheld the ruling of Prakash vs. Phulavati (2015). The Supreme Court, while giving its decision in the instant case, stated that certain observations made in the Amar vs. Danamma (2018) case are agreeable but the part approving the decision of Prakash vs. Phulavati (2015) cannot be sustained. As per the Supreme Court’s decision, there is a clear conflict between the decisions of Phulavati and Danamma with regard to the concept of a living daughter of a living coparcener.

Partition and effect of statutory fiction

Based on the principles of partition, the Apex Court stated that the right to seek partition has been recognised as one of the key features of a coparcenary. Therefore, one of the basic rights of a coparcener is to claim partition. The daughter, having become a coparcener with effect from 9.9.205 creates a significant change in the statutory provisions. Considering that the rights of a daughter are now on the same footing as those of a son, she can also claim partition. The widow of a coparcener is also entitled to an equal share and that right cannot be taken away.

The Supreme Court made a reference to the decision of Hardeo Rai vs. Sakuntala Devi & Ors. (2008), in which it was held that whenever an intention to partition comes to the surface, the shares of each coparcener become clear and ascertainable and once it is determined, each coparcener becomes the owner of their share and has the right to alienate as separate property. The coparcenary property ceases to exist. Without a final partition, only undivided shares can be sold without affecting specific property or joint possession.

Similarly, in Musammat Girja Bai vs Sadashiv Dhundiraj, (1916), it was held that the institution of a suit for partition is a clear reflection of an individual’s intention to sever his ties and separate from a joint family from that date onwards. One caution was added here that if, at a later stage, the law confers a right, or any supervening event takes place, the effect of such an event has to be figured out with a preliminary decree.

In I.T. Officer, Calicut vs. Smt. N.K. Sarada Thampatty (1991), it was held that once the preliminary decree is passed, it on its own doesn’t constitute partition. Actual partition takes place only after the passing of a final decree. In the case of S. Narayan Reddy and Ors. vs. S. Sai Reddy (1990), it was held that until a final decree was passed putting each coparcener into separate possession of separate properties, partition was not complete. A preliminary decree is not capable of creating an actual partition. During the pendency of the final decree, shares can be varied on account of intervening events and therefore a preliminary decree is not irreversible.

In the case of Prema vs. Nanje Gowda & Ors (2011), Section 6A was inserted into the Hindu Succession Act, 1956, by the State of Karnataka through a state amendment. This section gave equal rights to women. The amendment was considered in a pending suit where only a preliminary decree was passed and it was held that the final decree can be altered based on the provisions of the amendment. If there is an enlargement or diminution of shares after passing the preliminary decree, it has to be considered while drafting the final decree by the Court. In the case of Ganduri Koteshwaramma & Anr. vs. Chakiri Yanadi & Anr (2005), it was decided that a preliminary decree can be amended as during the pendency of the suit, Section 6 was substituted by the 2005 Amendment, thereby enlarging the claims and shares of the daughters. A preliminary decree merely ascertains the rights and claims of the parties but a partition suit is not disposed of until a final decree is passed, effecting partition through metes and bounds. If, after the passage of a preliminary decree, any supervening circumstances occur, it is the duty of the Court to take them into consideration. Nothing prohibits a court from passing more than one preliminary decree.

In the case of Laxmi Narayan Guin & Ors. vd. Niranjan Modak (1985), it was held that if any supervening circumstances affecting the rights of the parties happen during the pendency of an appeal, it has to be taken into account by the court while delivering its final decision on the matter. The appellate court can give effect to the changes even after the Trial Court has passed a judgement.

The Apex Court stated that once the status of a coparcenary changes with the birth or death of a coparcener, shares have to be ascertained at the time of factual partition. The shares are determined based on the changed circumstances. The severance of status cannot come in the way of implementing statutory provisions and changes made through subsequent events. The statutory fiction of partition or what is referred to as the notional partition is very different from the actual partition.

It further clarified that the notional partition doesn’t bring about the end to a joint family or a coparcenary. Therefore, mere separation of status by initiating a suit does not bring partition and once the final decree is passed only then can a partition be considered final. Awaiting the final decree, the court has to take into consideration every sort of change in circumstances and supervening events. A legal fiction is only for the purpose it serves and it cannot be extended beyond the purpose.

In the case of Gyarsi Rai & Ors vs. Dhansukh Lal & Ors. (1965), it was held that the shares of all coparceners must be worked out to figure out the share of a deceased coparcener. In such a situation, the partition is assumed and is ultimately given effect only when the question of allotment arises. The Apex Court did not believe that a deemed or notional partition could bring an end to a joint family or a coparcenary.

In this instant case, the Supreme Court held that, as per all the previous decisions, it is clear that when rights are conferred subsequently, a preliminary decree can be amended and the benefit given by law has to be taken into account. The Apex Court rejected the effect of statutory fiction of proviso to Section 6, as was discussed in the Phulavati and Danamma cases. A daughter stains coparcenary rights from birth and they take effect from the date of the commencement of the amendment.

Reference to Section 6(5)

The Explanation to Section 6(5) states that partition means any partition which is affected by the decree of a court or through a registered partition deed. It is important to note that this explanation had no place in the original amendment bill. It was added later on. For all practical purposes, partition shall mean to be effected by a registered partition deed or a court decree. Whenever partition is oral, it must be supported by documentary evidence to prove it. Initially, the legislature wanted to recognise oral partition also but it would have led to sham or bogus transactions.

The intention of the amended version of Section 6 is to ensure that daughters are not deprived of their claims over coparcenary property. By claiming a sham partition on the fraudulent defence of oral partition or an unregistered memorandum of partition defeats that purpose. The court has to be careful of the fact that a claim of oral partition can be made deceptively, through a concerted effort to defraud or can be based on a memo of partition that has not been registered. Such partition should not be recognised under Section 6(5) so as to ensure that the intention of the legislation is not defeated.

In the case of Kale & Ors. vs. Deputy Director of Consolidation & Ors. (1976), it was held that in the case of a family arrangement for partition, the settlement must be made with good faith to resolve family disputes or rival claims through the fair and equitable distribution of shares among members. It must be made voluntarily without any coercion, fraud, or undue influence. It can be oral and may require no registration. A mere memo prepared after the family arrangement for the purpose of recording or providing information to the Court does not extinguish any rights in immovable properties. In Chinthamani Ammal vs. Nandgopal Gounder, (2007), it was held that the plea of partition must be substantiated under law and there is always a presumption of jointness. Separate possession by co-shares is not a presumption of partition.

Earlier, oral partition was permissible and a burden of proof remained on the person who asserted the partition. The cessation of commonality was not taken as a valid proof of partition. Members of a joint family may be separated by food or residence for convenience but that does not end the joint family or coparcenary. It is a general presumption that every Hindu family is joint, unless the contrary is proven. Even when one coparcener is separated, the other remains joint. A severance of status can take place from the date of filing a partition suit but a decree is necessary for ascertaining the results of such a severance and for allotting definite shares in a final decree. Definite shares can be changed by changes arising during the pendency of a final decree. The Apex Court opined that there is a need for a special definition of partition. The intention of the provision is not to jeopardise the rights of a daughter through sham partitions. A plea of oral partition, therefore, must not be readily accepted by the court. It has to be proved by the person asserting it through documentary evidence.

Summarised decision

Ultimately, the Supreme Court upheld the following principles:

The provisions of the amended Section 6 confer the status of a coparcener on a daughter born before or after the amendment and she is subject to the same rights and liabilities as that of a son.
A daughter born before 9.9.2005 can claim her rights with savings as provided in Section 6(1), which protects any disposition, alienation, that partition took place before 20.12.2004.
Considering that coparcenary rights accrue from birth, it is not necessary to have a father living on the date of commencement of the amendment.
Statutory fiction of partition as enacted in the proviso to Section 6 of the unamended Act did not bring about any actual partition or disruption of the coparcenary. The fiction was merely for the purpose of ascertaining the shares of a deceased coparcener and it cannot be extended beyond that.
A defence of oral partition cannot be recognised as a statute-authorised mode of partition effected by a duly registered deed or a court decree. In rare cases, a defence of oral partition set up by reliable documents can be accepted in the same manner as a decree of the court.
All suits and appeals pending before various courts on similar matters had been delayed due to the legal confusion and therefore the Apex Court ordered the disposal of those suits following these principles within six months.

Conclusion

The decision in this case is an expansive and comprehensive piece of legal discussion that encompasses various provisions, precedents and principles to finally settle the legal confusion regarding the applicability of a section. This confusion, in its very essence, had the effect of depriving or delaying the equal claims over property made by many daughters and therefore it was important to settle it once and for all. This decision will serve as a guiding light as well as a safeguard to protect the coparcenary rights of women for years to come.

Frequently Asked Questions (FAQs)

What is the effect of the amended provision of Section 6 of the Hindu Succession Act, 1956?

The provision was held to be neither prospective nor retrospective in nature. It was declared to be retroactive as its effect depended on an antecedent event, which is the birth of a daughter and therefore, the rights and claims accrued from birth, an antecedent event but got their effect from the date of the amendment.

Is it necessary for a daughter to have a living father on the date of commencement of the 2005 Act to become a coparcener?

No. Considering that the coparcenary rights accrue from birth, it is not necessary for a daughter to have a living father on the date of the amendment to attain coparcenary rights.

What is the effect of oral partition?

The oral partition should not be regarded as a valid partition unless and until it is supported by strong and substantial documentary evidence asserting its genuineness.

When is a partition actually affected?

A partition is complete only when the final decree is passed by a court in a partition suit or through a registered partition deed where the shares of each coparcener are made definite and is then allotted to them based on their separate claims. A preliminary decree of a court does not crystallise partition.

References

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Vineeta Sharma vs. Rakesh Sharma (2020)