In recent case delivered on 11th August,2020 Justice Arun Mishra speaking on behalf of 3JB in, (VINEETA SHARMA VS RAKESH SHARMA) has considered the question concerning the interpretation of section 6 of the Hindu Succession Act, 1956 (as amended by Hindu Succession (Amendment) Act, 2005 has been referred to a larger Bench in view of the conflicting verdicts rendered in two Division Bench judgments of the Supreme Court in Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343.
ISSUE– Whether a daughter could be denied her share in the coparcenary property on the ground that she was born prior to the enactment of the 2005 Amendment to the Hindu Succession Act, 1956?
A Three-judge bench of Justice Arun Mishra, Justice S Abdul Nazeer and Justice MR Shah said the amendments of 2005 can have a retrospective effect.
The Supreme Court held that daughters would have equal coparcenery rights in Hindu Undivided Family (HUF) properties even if they were born before the 2005 amendment to the Hindu Succession Act, 1956 and irrespective of the fact whether their father who was also a coparcener had died before the amendment.
This judgement has been authored by Justice Mishra and he begins with the ancient history of the Hindu succession and later on proceeds by explaining the basic concepts like Joint Hindu family, Coparcenary and Coparcenary property.
‘A son is a son till he gets a wife. A daughter is a daughter throughout her life.’ quoted Justice Mishra. “The daughter shall remain a coparcener throughout life, irrespective of whether her father is alive or not. Daughters must be given equal rights as sons, daughter remains a loving daughter throughout life.”
There were 2 conflicting judgements of the SC on this issue.
In Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 a division bench of the SC has held that the rights under the amendment are applicable to living daughters of living co-parceners as on 09-09-2005 irrespective of when such daughters are born.
In other words, only if the father passed away before the enactment of the amended act the living daughter will have no right over the coparcenary property.
In the other case, Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343 , the SC held that the said amendment of 2005 confers equal rights to both son and daughter on the coparcenary property. In this case, the father died in 2001 leaving behind two daughters, two sons, and a widow. The father was not alive when the amended version of the said Act came into force. The daughters, sons and the widow were given 1/5th share each.
Disagreeing with the contrary provisions in Prakash V. Phulvati, the court went on and said that-
- In this case, attention was not drawn to the fact that how a coparcenary is formed. A right in coparcenary is acquired by birth.
- It is not necessary that a predecessor should be alive to form a coparcenary or become a coparcener, the only thing relevant is that the birth should be within the degrees of the coparcenary.
- Survivorship is the mode of succession and not that of the formation of a coparcenary.
- In the amended Section 6, the expression ‘daughter of a living coparcener’ has not been used. Right is given to the daughter by birth under Section 6(1)(a) of the amended Act. The provisions of Section 6(1) leave no room to entertain the proposition that the coparcener should be alive on 9.9.2005 through whom the daughter is claiming.
OBSERVATIONS MADE BY THE COURT
- The amendment of 2005 confers the same duties and liabilities on a daughter as a son in respect of the coparcenary property irrespective of the fact whether the daughter was born after or before the said amendment.
- Since the right in coparcenary is acquired by birth and not by inheritance, the fact whether the father coparcener is living on 09.09.2005 is not necessary as she has not been conferred the rights of a coparcener by obstructed heritage.
- As per Section 6(1), it is not necessary that there should be a living coparcener or father as on the date of the amendment to whom the daughter would succeed. She will step into the coparcenary by birth in the same way as a son by taking birth before or after the Act.
- A daughter born before the amendment of 2005 can claim these rights only with effect from the date of the amendment, i.e., 9.9.2005 with saving of past transactions as provided in the proviso to section 6(1) read with section 6(5).
- Even if a coparcener had left behind female heir of Class I or a male claiming through such female Class I heir, there is no disruption of coparcenary by statutory fiction of partition. Fiction is only for ascertaining the share of a deceased coparcener, which would be allotted to him as and when actual partition takes place. The deemed fiction of partition is for that limited purpose. The Shastric Hindu law excluded the daughter from being a coparcener, which injustice has now been done away with by amending the provisions in consonance with the spirit of the Constitution.
- Mere severance of status by filing of a suit does not bring about the partition and till the date of the final decree, change in law, and changes due to the subsequent event can be taken into consideration.
- The provisions of the amendment of 2005 have retroactive application, it confers rights on daughters from the time of their birth even if the birth took place prior to the amendment. Effectively, it becomes unimportant whether the father coparcener was alive at the time the amendment was brought.
- In spite of any preliminary decree passed, the daughters are to be given share in coparcenary property equal to that of the son in pending proceedings for final decree or in appeal.
The court overruled the views given in contrary in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors and the opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision.
This judgment has now settled the ambiguity around the nature and extent of a daughter’s rights to an HUF property.
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TEAM SIGMA LEGAL