The Supreme Court recently in the case of Vineeta Sharma v. Rakesh Sharma (Civil Appeal Diary No.32601 of 2018) held that daughters would hold equal coparcenary rights in Hindu Undivided Family (HUF) properties even if they were born before the 2005 amendment to the Hindu Succession Act, 1956 (Act) and regardless of whether their father coparcener had died before the amendment. Need of this judgment arose to bring the clarity on the scope and application of amended section 6 of the Act which deals with devolution of interest in coparcenary property and to resolve the ambiguity in the interpretation of said section on account of two conflicting judgments passed by the Supreme Court in the case of Prakash & Ors. v. Phulavati & Ors. [(2016)2SCC36] (Phulavati Case) and Danamma@ Suman Surpur & Anr. v. Amar & Ors. [(2018) 3 SCC 343] (Danamma Case).
In Phulavati Case, the Supreme Court held that Sec. 6 would apply only when the coparcener (person who acquires interest in the joint family property by birth) and his daughter, both were alive on the date of commencement of the 2005 Amendment. In Danamma Case, while the Supreme Court agreed with the principles laid down in Phulavati Case, it held that the 2005 amendment confers upon the daughter of the coparcener, the status of coparcener in her own right in the same manner as the son and accordingly, the female coparcener was given a share upon partition even if the father had died before the 2005 Amendment came in force.
The principle arguments made by the Union of India (UOI) were that the exclusion of a daughter from coparcenary was discriminatory and led to oppression and negation of fundamental rights. Further the conferment of rights on the daughter does not disturb the rights which got crystallised by partition before 20 December 2004. The decision in Phulavati Case failed to appreciate that coparcenary rights accrued by birth by operation of law, and death of a coparcener was only relevant for the succession of his coparcenary interest at the time of partition. Thus, the daughter of a coparcener had herself become a coparcener on her birth and her father need not have been alive on the commencement of the 2005 Amendment. UOI also argued that the purpose of inserting explanation to Sec.6(5) necessitating the partition to be registered was to avoid any bogus or sham transactions. The requirement of registration was directory and not mandatory. Any family arrangement or oral partition relied upon would have to be proved by leading documentary evidence.
On the other hand, the Amici Curiae submitted that there was no conflict between the decisions in Phulavati Case and Danamma Case as both held that Sec.6 was prospective in application. The scheme of Sec.6 was future and forward-looking. Thus, only the daughter, whose coparcener father was alive on the commencement of 2005 amendment, would be treated as a coparcener.
The Court while reaching to the conclusion historically analysed the Hindu Law, the concept of Joint Hindu Family and formation of coparcenary to arrive at its decision. The Court opined that unobstructed heritage takes place by birth while obstructed heritage takes place after the death of the owner. Under Sec.6, rights are given by birth, which is unobstructed heritage, independent of the owner's death. Thus, the coparcener father need not be alive on the date of substitution of Sec.6 i.e. 9 September 2005. The provisions of section 6 are retroactive in nature and not retrospective as even though the right of a coparcener accrued to the daughter by birth, it could be claimed only from the date of the 2005 Amendment. The coparcenary right to be claimed by a daughter with effect from commencement of 2005 Amendment is subject to any disposition or alienation, testamentary disposition of the property or partition which had taken place before 20 December 2004. The finding in Phulavati Case that the rights under Sec.6 accrue to living daughters of living coparceners as on 9 September 2005 irrespective of when such daughters were born, was misconceived. Phulvati Case overlooked the concept of creation of a coparcenary at birth and was accordingly overruled. The decision in Mangammal v. T.B. Raju [(2018)15SCC662] which followed Phulavati was also overruled while the decision in Danamma Case was partly overruled. The Court categorially opined that mere filing of a suit for partition does not bring about partition. In fact, any subsequent change in law from the time of filing the suit, could also be taken into consideration before passing of the final decree. Although, the Explanation to Sec.6(5) contemplates partition only by the virtue of registered partition deed or partition effected by a decree of court, the Courts could recognize oral partition in exceptional cases based upon long standing evidences in the form of contemporaneous public documents. At the end, the Court has directed that since significant delay is caused due to these conflicting decisions, all the High Courts and subordinate courts will dispose of cases involving this issue, as far as possible, within six months.
To encapsulate, this case operates on the premise that the intent of Section 6 of the Act as amended by the 2005 amendment was to neither confer its benefits to female successors prospectively nor for that matter retrospectively, but it was to confer benefits retroactively. A legislation applies retroactively when it prescribes benefits conditional upon an eligibility, that may arise even prior to the passing of such legislation. While explaining the concept of retroactive application in relation to 2005 amendment, it was held that the 2005 amendment makes available to female successors, the benefit of succession on par with that of her male counter parts based on an antecedent event, i.e., her birth.
In so far as the self-acquired property is concerned, daughters are class I heirs and entitled to an equal share as that of a son in every intestate succession. As an outcome of this decision, the daughters will now also have an equal right in ancestral property and their father’s Joint Family property. Although the verdict deserves appreciation for achieving the necessary objective of gender equality and gender justice, the fact that it almost took 15 years to be finally settled reflects the long journey towards justice. In this meantime, many women would have been left without their legitimate coparcenary share who were otherwise entitled to claim their rights under Section 6 of the Amended Act. This judgment would surely impact pending litigation where the coparcenary property is the subject matter of a dispute.
