FACTS
In this case Sh. Dev Dutt Sharma (Father) had three sons, a daughter and a wife. He expired on 11th December 1999. And one of his sons expired on 1st July 2001 who was unmarried. And then the daughter Ms Vineeta Sharma (Appellant) claimed for 1/4th share in her father’s property by filing a case against two brothers who are Mr Rakesh Sharma and Satyendra Sharma, and her mother (Respondents). The respondents contended that after her marriage she ceased to be a member of the joint family. The Honorable Delhi High Court declined the appeal as the 2005 amendment Act did not gain the appellant as the death of the father of the appellant happened on 11th December 1999.
ISSUE RAISED
- Whether it affects the daughter’s right if the father dies before the amendment act 2005?
- Whether the amendment 2005 Act apply retrospectively or prospectively?
- can a petition of oral partition after 20 December 2004 be accepted as a statutorily recognised mode of partition?
CONTENTION
Shri Tushar Mehta the advocate on behalf of the Union of India argued that the cases in which the partition took place before December 2004 should be set aside untouchable as if we consider those there may be a chance for chaos. And he agreed with the statement that, the daughter can be considered a coparcener even though her father’s death happened before the amendment. Venkata Ramani who was an amicus curiae argued that the amendment Act 2005 applies prospectively by saying that, the right for a daughter arrived by amendment and not by her birth and it applies only to the daughter who was born after the amendment and the father should be alive as if he died the succession would already take place. V. V. S. Rao an amicus curiae argued by considering the grammar in the act and said, it applies prospectively. Sridhar Potharaju an advocate on the respondent’s side argued that notional partition should be considered as actual partition and the preliminary decree should be recognized as a final decree and the amendment act applies prospectively. Amit Pai & Sameer Srivatsava the advocates on the petitioner side argued that the act applies retrospectively cause there is no achievement of the object of the act if it applies prospectively and hence there is discrimination against women is seen.
RATIONALE
The judgement in the above case was decided by a three judges bench comprised of justice Arun Mishra, M. R. Shah and S. Abdul Nazeer . The verdict had cleared the conflicts that arose between the Prakash & Ors. V. Phulavati & Ors. Case And the Danamma @ Suman Surpur & And. V. Amar & Ors. Case by saying that the daughter is considered as aCoparcener by birth irrespective of her father being alive or not. And the act appliesretroactively as the notional partition gives clear scope of the shares. The notional partition is nothing but the partition and is not the actual partition; it is like imagining the partition and concluding the approximate share.
The Supreme Court Overruled the judgement of Prakash & Ors. V. Phulavati & Irs. Case6.
DEFECTS OF Law
Whether father of a coparcener daughter should be alive on 9th September, 2005 when Amendment Act, 2005 came into force.
The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary preposition for the coparcenary. The coparcenary must exist on 9th September, 2005 to enable the daughter of a coparcener to enjoy rights conferred on her. In case living coparcener dies after 9th September, 2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted section 6(3). It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in section 6, she has been made a coparcener.
It is not necessary while forming a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary.
In substituted section 6, the expression ‘daughter of a living coparcener’ has not been used. Right is given under section 6(1)(a) to the daughter by birth. The provisions of section 6(1) leave no room to entertain the proposition that coparcener should be living on 9th September, 2005 through whom the daughter is claiming.
INFERENCE
The Hindu Succession Act, 1956 (Act of 1956) was enacted to amend and codify laws relating to intestate succession among Hindus and brought about changes with respect to succession and also conferred on women certain right which until then was not in existence. Further, the Act of 1956 also recognized, under Section 6, the special right of male coparceners of a Hindu Coparcenary to inherit by birth over the coparcenary property and laid down rules for succession among the coparceners. This, however, was discriminatory in terms of gender and also negation of constitutional right of equality, in so far as the daughter of a coparcener was concerned. In order to do away with discrimination, the Parliament passed the Hindu Succession (Amendment) Act of 2005 (Act of 2005), which came into effect from 09.09.2005, whereby Section 6 of the Act of 1956 was substituted and recognized the daughter of coparcener to be on par with that of a son, and conferred on her rights by birth on the coparcenary property, however, with a proviso that conferment of such right on a daughter shall not affect or invalidate any disposition or alienation, partition or testamentary disposition of property took place before 20.12.2004.
After the amendment Act of 2005, a Division bench of the Hon’ble Supreme Court of India, in the case of Prakash & Others Vs. Phulavati & Others, (2016) 2 SCC 36, held that the Act of 2005 is prospective in nature and that rights conferred on daughter, under Section 6 of the Act of 2005, is on the living daughter of a living coparcener, requiring the coparcener to be alive as on 09.09.2005 so as to enable the daughter to claim rights over the coparcenary property. In the said case, the coparcener had died prior to 2005 amendment and hence, it was held that the daughter is not entitled to a share in the coparcenary property as she is not the daughter of a living coparcener. In a subsequent judgement of a Division bench of the Hon’ble Supreme Court of India, in the case of Danamma @ Suman Surpur & Another Vs. Amar & Others, (2018) 3 SCC 343, although the Court did not specifically deal with the concept of living daughter of a living coparcener, the Court took a contradicting view from that of decision in Phulavati case and held that daughters have equal rights in the coparcenary property as that of son, even though the coparcener had died before the amendment of 2005.
In the an appeal under analysis herein, i.e., in Vineeta Sharma v. Rakesh Sharma & Others, similar questions were raised before the Hon’ble Supreme Court, and considering the contradicting view expressed by the Hon’ble Supreme Court in the above mentioned two decisions, i.e., Phulavati case and Danamma case, the issue was referred to a larger bench constituting three judges of the Hon’ble Supreme Court.
The Larger Bench of the Supreme Court, in the above Appeals, have referred to various concepts of Hindu Law, both codified and customary, being concepts such as Coparcenary and Joint Hindu Family and unobstructed and obstructed heritage, and also referring to catena of Judgements, came to a finding, at paragraph No.44 of the Judgement, that coparcener father need not be alive as 09.09.2005 in order for a daughter to inherit rights over the coparcenary property, as per the Amended Section 6. Explaining obstructed and unobstructed heritage, the Hon’ble Supreme Court held that the unobstructed heritage takes place by birth, whereas the obstructed heritage takes place after the death of the owner. The Hon’ble Supreme Court further went on to hold that under Section 6, right is given by birth, making it an unobstructed heritage, and therefore coparcener father need be alive as on 09.09.2005 in order for the daughter to inherits rights over the coparcenary property. The Court also added that the concept of uncodified Hindu Law of unobstructed heritage has been given a concrete shape under the provisions of Section 6(1)(a) and 6(1)(b) and that the coparcenary right is by birth and therefore, it is not at all necessary that the father of the daughter be living as on the date of the amendment, since she had not been conferred with the rights of coparcener by obstructed heritage. As such, the Hon’ble Supreme Court did not consider decision in Phulavati case to be a good decision in so far as this aspect is concerned.
As regards the applicability of the amended section 6 to be retrospective or prospective, the Hon’ble Supreme Court held that the amended Section 6 is retroactive in nature. Explaining the concepts of prospectively, retrospectivity and retroactivity, the Hon’ble Supreme Court held that the operation of retroactive statute operates based on a characteristic or event which happened in the past or requisites which had been drawn from antecedent event. The Court further opined that Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth and since the right is given by birth, that is an antecedent event, and provisions operate on and from the date of the Amendment Act, making it retroactive. The Court also added that the provision contained in Section 6(4) makes it clear that the provisions of Section 6 are not retrospective.
- The right conferred on a daughter, in the coparcenary property is by birth and hence, it is not necessary that the father be alive as on 09.09.2005. As such, the decision in Phulavati case is overruled and the decision in Danamma case is partly overruled to the effect where it said that the coparcener father has to be alive as on 09.09.2005.
- The amendment by way substitution of Section 6 of Act of 2005 is retroactive in nature.
Amisha Tiwari
BA.LLB 1st year
New Law College Pune, Bharati Vidyapeeth Deemed to be University