PETITIONER: – VINEETA SHARMA
RESPONDENT: – RAKESH SHARMA AND ORS
(BENCH – J. ARUN MISHRA, J. S. ABDUL NAZEER and J. M.R. SHAH)
INTRODUCTION
This case is based upon the coparceny rights of daughter in ancestral property under the Hindu Succession (Amendment) Act, 2005.before 2005, females had had the rights to inherit and own the property of joint Hindu family. In India all the problems related to the succession in Hindu family deals by the Hindu Succession Act,1956, Which is based upon a phrase which is known as “rule of survivorship” which means there is only male lineage has a right in ancestral property up to four generations. This provision of law abridge the rights of female and our India promotes the gender equality so on the basis of gender equality the 2005 amendment came in existence by this amendment the phrase “Rule of Survivorship” is is deleted and two new phrases were added such as “Rule of Testamentary’” and “Rule of intestate” which gives to daughter coparcenary rights in ancestral property by birth. But this amendment doesn’t say that whether it will affect retrospectively or not so in this case SC interpreted the law whether it will work retrospectively or only prospectively.
FACTS
There is one male person who has one wife, and four children, out of these there is 1 girl and 3 boys. So, the person (father) was died on the date of December 11,1999. And one of his sons also died on January 1, 2001. After the death of the father and brother there was left only 4 persons in the family, one wife, two sons and one daughter. After the death of brother and father the daughter (Vineeta Sharma) claimed that she has one forth share in the ancestral property. But she was denied by the family members and said that the father was died in 1999, before the enactment of the Amendment Act, 2005, and also the said that after the marriage she will not be a member of our joint family and she has no rights in ancestral property. So, the daughter filed a suit against her brothers such as Rakesh Sharma and Satyendra Sharma and her mother for not giving the shares in ancestral property. Then she appeals to High court of Delhi but the High court of Delhi also held that section 6 of the Hindu Succession (Amendment) Act, 2005 will not be applicable to the appellant as the coparcener (the father) was not alive on September 9, 2005, dismissed the appeal but Vineeta Sharma (Appellant) made an appeal in the Hon’ble Supreme Court of India.
ISSUES RAISED
- Whether Hindu Succession (Amendment) Act, 2005 is retrospective in nature or not.
- If it is retrospective in nature, will it affect the efficiency of court of law or not.
- Whether the coparcener must be alive or as on September 9, 2005 or not
- Is this amendment violating the rights of females of before 2005.
- Whether the statutory partition provided by proviso to Section 6 of the Hindu Succession Act, 1956 bring actual partition or impede the coparcenary and can plea for oral partition after 20th December 2004 be considered as statutory partition?
CONTENTION
In this case there was a three judges’ bench and this bench was consisting of Justice Arun Mishra, Justice Abdul Nazeer, Justice Mr. Shah
And the arguments advanced by Tushar Mehta (Solicitor General of India) on behalf Union of India, two other Senior learned Counsels such as R. Venkataramani, V.V.S. Rao, and Sridhar Potaraju on behalf of Respondent
By Tushar Mehta
He contended that the Hindu Succession (Amendment), 2005 is prospective in nature not retrospective, also this amendment does not affect the right of females, who got partition before December 20, 2004.
By Venkataramani
He contended that before the case of Vineeta Sharma vs Rakesh Sharma, the SC also had given the verdict in two cases such as Phulvati case and Dhanamma case in both the case, the Supreme Court of India held that the section 6 is prospective in nature and the amendment also prospective in nature. Which says that there must a living coparcener, otherwise daughter cannot claim. If daughters got the coparcener rights before 2005, this will affect the efficiency of court, if it transfers to retrospective in nature many of females will come to court for there rights. So, the section 6 of Hindu Succession Act should be prospective in nature.
By V.V.S. Rao
He argued that the daughters who have taken birth before or after 2005, should be considered as a coparcener by birth. But also, same thing argued which was contended by the appellant’s family that the daughter must be alive on the date of amendment and also the coparcener (from whom the property will inherit) must be alive.
By Shridhar Potaraju
He argued that the amendment should prospective is nature. Daughters have the coparcener rights by birth but there must be is living coparcener (from whom the property will inherit), he also argued that this will affect the jointness of the Hindu Family, therefore all the past and former transactions should be unaffected by the amendment.
By Amit Pai
He argued that daughter have the rights of coparcener, and it doesn’t matter thar whether daughter and the coparcener (from whom the property will inherit) is alive or not on the date of amendment by section 6 of Hindu Succession Act.
By Sameer Srivastava
He argued that if we make a condition which says that there must living coparcener (from whom the property will inherit) and living daughter on the date of amendment will affect the rights of female so we have to treat all the female same as male to give equal justice. But there can be a exceptions if a daughter is adopted. And if the partition already take place than the female cannot claim partition.
RATIONALE
The judgment was passed by the Justice Arun Mishra the he held that the daughter have coparcener rights in ancestral property whether she is born before or after the amendment 2005 of Hindu Succession Act 1956. And justice Arun Mishra overruled the judgement, Prakash vs Phulvati and held that “It is not necessary to form 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… 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. Declaration of right based on the past event was made on 9.9.2005 and as provided in Section 6(1(b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in Section 6(1)(c). Any reference to the coparcener shall include a reference to the daughter of a coparcener. The provisions of Section 6(1) leave no room to entertain the proposition that coparcener should be living on 9.9.2005 through whom the daughter is claiming.”
The Court partly overruled the Danamma case and observed that:
“In Danamma…Daughters were given equal rights by this Court. We agree with certain observations made in paras 23 and 25 to 27 (supra) but find ourselves unable to agree with the earlier part approving the decision in Prakash v. Phulvati and the discussion with respect to the effect of the statutory partition. As a matter of fact, in substance, there is a divergence of opinion in Prakash v. Phulvati and Danamma with respect to the aspect of living daughter of a living coparcener. In the latter case, the proposition of the living daughter of a living coparcener was not dealt with specifically. However, the effect of reasons given in para 23 had been carried out to logical end by giving an equal share to the daughter.”
The court held that the section 6 of amendment act will be the retrospective in nature. The Supreme court overruled the verdict of Phulvati case and Dhanamma case which was held that the section 6 of amendment is prospective in nature. The Daughter of Hindu family will have the right in ancestral property whether they are living or not on and from September 9, 2005. But it has been created on and by the birth of daughter.
INFERENCE
The Indian judiciary has done a great job, it saved the fundamental Rights which right to equality under article 14 of Indian constitution which will give the equal rights to the female as male. So Indian judiciary held that daughters of Hindu family have equal rights in ancestral property of Hindu Family and the section 6 of Hindu Succession act 1956 is retrospective in nature, so it doesn’t matter whether the daughter and the coparcener (from whom the property is inherit) is living or not at the time of amendment. And in the coming cases of future will be treated with the section 6 of Hindu Succession Act with retrospective in nature.
Name – Robin Pawar
College – Asian Law college, Noida