CASE COMMENT ON VINEETA SHARMA V. RAKESH SHARMA

Introduction: Women have been denied many fundamental rights like- right to education, right to equality for a long period. In ancient times, no rights of women were considered. Though the time, the society, the period, the laws has changed, there is still need of reform in validating women rights. Nowadays, the situation for women has improved a lot, but there is more to overcome. In our society it is often seen, that the women are not considered an equal heirs to the property of their ancestors. In fact, the Hindu Succession Act, 1956 doesn’t even recognise the female members of a family as a coparcener. According to Section 6 of this act only males are considered to be coparceners and have rights on their ancestral property by birth. Though, Indian constitution ensures right to equality under Article 14 where it is stated that individuals will be given equality irrespective of his/her gender, caste etc; it took about 50 (Amendment) Act, 2005 declared that daughters also have equal right in their ancestral property, and they should be considered a coparcener by birth.

Facts Of The Case: Though the right of women in their ancestral property was considered, it didn’t hold the nature of the amendment. It wasn’t held whether the amendment was retrospective or prospective. In the present case, the appellant was Vineeta Sharma whose father died before the 2005 amendment. That’s why she wasn’t given her share in the property. According to Vineeta Sharma, as the property wasn’t included in HUF, she is entitled to the 1/4^th of her father’s property. She filed a petition before Delhi High Court and honorable Justice Mehta made decision in favor of the appellant. But it arose along with two other cases to determine the retrospective nature of the amendment. Those two cases are-

1. Prakash v. Phulavati- In this case the father of the appellant died before the amendment came. The two-judge bench in the High Court of Karnataka, which included Justices D.V. Shylendra Kumar and N. Anand stated that the partition happened after the death of the Respondent’s father and their father died before the amendment came into force. They made decision in favor of the respondents.[1]
2. s-  In this case too it was held that as the father of the appellant had died before the amendment, the daughters will not be considered as coparceners of ancestral property. The respondent again won the case.[2]
3. – Gurunalingapa died in 2001, leaving two daughters, two boys, and a widow behind. Coparceners gather was not living when the substituted section 6 provision went into effect. The daughters, sons, and widow each received one-fifth of the estate. This judgement was inconsistent with the preceding decisions, resulting in a legal contradiction.[3]

Issue Raised on the Case: The issues raised on this case are-

1. Whether a daughter can be a coparcener even if the father died before the Hindu Succession (Amendment) Act, 2005[4]
2. Whether that particular amendment is retrospective or prospective or retroactive in nature

Contention: [5]

Counsel on behalf of Union of India- Shri Tushar Mehta, representing the Union of India, gave arguments that were consistent with the actual ruling. He claimed that real divisions completed before December 20, 2004, the date of the Rajya Sabha’s introduction of the amendment bill, should be kept unchallenged because questioning them would jeopardise the legal situation. The Solicitor General acknowledged that a coparcener’s father does not have to be living during the amendment act for the daughter to have coparcenary rights, because the death of the coparcener/father does not immediately end coparcenary, which may continue with other coparceners alive.

Views of the Amicus Curiae-

1. Shri R. Venkataramani, who argues as amicus curiae argued that the reason why a daughter is treated equally to a son in reference to coparcenary rights is only because of the amendment act and not because of her birthright. The father/coparcener should be alive or otherwise there will be no coparcenary interest left for the daughter. He also said that the amendment made by the parliament is prospective in nature.
2. Shri V.V.S. Rao learned amicus curiae argued that the tone in the particular amendment was forward-looking. Hence it shouldn’t be considered as retrospective in nature. He also stated that a living coparcener needed to be alive at the time of the amendment, from which the daughter can inherit coparcenary.

Arguments made by the Respondent side- On behalf of the respondent, Shri Sridhar Potraju argued and reiterated that the provisions are intended to be prospective in nature because such interpretation is not sought, resulting in the loss of crystallised rights of the surviving coparcener and, as a result, settled issues becoming unsettled. Using Uppaluri Hari Narayana & Co. he stressed that because the provisions are not retroactive, liabilities can only be transferred to the daughter from the date of change. He also claimed that all previous transactions should be shielded from the effects of the amendment because, after a statutory partition, the property becomes self-acquired and no longer a coparcenary property.

Reply of the Appellant- Shri Amit Pai and Shri Sameer Shrivastav were the counsel of the Appellant side. They said that the main agenda of bringing the Hindu Succession (Amendment) Act, 2005 was to abolish the injustice against daughters. If the Amendment is not retrospective in nature then it fails to combat the inequality, that it was meant to be. They also argued that the coparcenary right is inherited by birth and it is inherited irrespective of gender. Both the son and daughter have the same right on their ancestral property. The amendment also proves that. So a mere dispute on the tone of the amendment should not be contradictory with its main motto.

Rationale: A bench of Justices including honorable Justice Arun Mishra, S Abdul Nazeer, and M R Shah worked out the kinks caused by the Supreme Court’s implementations of the revised Section 6 of the Hindu Succession Act, which went into effect on September 9th, 2005 and gave verdict on the present case. The court ruled that whether the father is alive or not, female heirs in a family born before September 9th, 2005, have an equal right to inherit. The simple viewpoint behind this judgment was that every son & daughter is born in the same manner. So, if the boy has the right of coparcenary by birth, then the daughter should also have the equal right in both assets & liability. The SC held that the main purpose of the amendment was to consider and establish women’s right in their ancestral property. If this amendment is subjected to be prospective in nature, it would contradict its purpose. And it is stipulated in Section 6(1), a daughter born before September 9, 2005, has the right to claim the disposition or alienation, partition, or testamentary disposition that occurred before December 20, 2004. The right in coparcenary of a son is through birth, thus the father does not need to be alive on September 9, 2005, in case of daughters too.[6]

Further, it was said by the Supreme Court that even after a preliminary decree is passed, the quantification of shares of property may change subject to birth of a new member or death of any existing member irrespective of gender. So, if a coparcener dies, the share value of the existing property would increase for other individual coparceners (both son & daughter). In the same manner, the share value will automatically decrease on account of birth of a girlchild or a boy. The court determined that cause conceptual partition does not imply actual partition. Because notional division is a legal fiction, it should only be used and implied to a specific extent and for the reason for which it was formed. In this scenario, a fictitious division is made in order to determine the share of each coparcener of the joint Hindu household. The court noted that the determination of the shares distributed and the notional division are not definitive, because the birth of a new coparcener or the death of any existing coparcener can either raise or decrease the shares of the other coparceners. It also found that, as a result, a daughter can claim a share of the joint family property even if she is a minor, because a notional partition is not an actual partition; the coparcenary property does not cease to exist simply because it is done before November 9, 2005.

Defects of Law: There is no point to criticize the judgment passed by the honorable Supreme Court because it abolished the inequality that was still going on even after the 15 years of the Hindu Succession (Amendment) Act, 2005. Now it is time for the individual High Courts and District Courts to make decisions while taking this case in mind and be the flag bearer of the honorable Supreme Court. The one thing that should be noted, is that the Parliament should have made this thing clear while passing the amendment. It could have erased all the confusion, and heated situations occurred through the years. If they have set the nature or tone, such as if this particular amendment was either prospective or retrospective or retroactive in nature, there wouldn’t have been so much tussle. So, there is no need to improve or substitute some parts of the judgment, but there is a serious need for The Parliament and lawmakers to give full attention to every detail and aspect of the laws made or amended. Because if the issues raised in the case of Vineeta Sharma v. Rakesh Sharma were previously cleared by The parliament, the appellant would have given relief and there would have been no point fighting over coparcenary rights throughout these years.

Inference: After 50 years, Indian Policymakers considered the right to equality of women by giving them coparcenary right in their ancestral property. No doubt, that it was a good gesture and an excellent decision to amend the Hindu Succession Act, 1956.[7] But this case Vineeta Sharma v. Rakesh Sharma published that not only do the daughters have coparcenary right but also that they get this right by birth like the sons. It also declares that the tone of the amendment of 2005 was retrospective in nature. It ends so long debate on women’s coparcenary right and establishes the fact that both Son & Daughter are same, should be treated in the same way and equal rights should be given to them. It ensures social justice for every daughter under the Hindu Succession (Amendment) Act, 2005, and maintains the Right to Equality assured under Article 14 of the Indian Constitution. 

Institute of Law

Nirma University

Dibyojit Mukherjee

9883993237

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[1] Prakash & Ors v. Phulavati & Ors, (2009) 6 SCC 99

[2] Mangamal @ Thulasi And Anr. vs T.B.Raju And Ors, (2009) SCC 297

[3] Danamma@ Suman Surpur & Anr. V. Amar & Ors, (2018) 3 SCC 343

[4] Hindu Succession Act, 2005, 6, No. 1, Acts of Parliament, 2005 (India)

[5] LegalService India, https://www.legalserviceindia.com/legal/article-4710-vineeta-sharma-v-rakesh-sharma-an-case-analysis.html (22th Apr 2023)

[6] Lawyerscript, https://lawyerscript.com/vineeta-sharma-vs-rakesh-sharma-hindu-family/ (22th Apr 2023)

[7] Hindu Succession Act, 1956, Act of Parliament, 1956 (India)