Rahul Sharma
There was a time when societies were governed by norms based on religions and social customs. The inequalities that were inherent in these norms attained permanence when such religion based social norms became the source of our codified personal laws. Gender based inequality in Ancient Hindu Laws with respect to the inheritance & devolution of Joint Hindu Property was based on the puranic reasoning that son performs last rites of the father, carries the lineage and responsible for sharing the debts of the father, therefore holds a superior right of inheritance than daughter.
In its recent judgment, Supreme Court of India in the case of Vineeta Sharma versus Rakesh Sharma & others, cleared the ambiguity with respect to the Coparcenary rights of daughters . In order to better understand the decision of Apex Court, it is imperative to first understand the concept of coparcener and how despite Hindu Succession (Amendment) Act 2005, daughters could not get the coparcenary benefits to the fullest.
Coparcener and Coparcenary Property and position before 2005 Amendment: Ancestral Property is a pre-requisite of Coparcenary property and coparcener is a person who inherits an equal share in the coparcenary property along with other coparceners. A share of the Coparcener in the coparcenary property cannot said to be definite until actual partition takes place and such indefinite share enlarges in case of death and reduces in case of birth in the joint family. A coparcener has right in the coparcenary property by birth and inter alia acquires right to survivorship, enjoyment of joint possession of property and most importantly right to call partition. Before Hindu Succession (Amendment) Act 2005, only Son (male member) could be a coparcener and such coparcenary right was by birth. As per un-amended Section 6 of Hindu Succession Act 1956 ‘when a male Hindu dies after the commencement of the Act, having at the time of his death an interest in the Mitakshara Coparcenary Property, his rights in the property shall devolve by survivorship upon surviving members and not in accordance with this Act’ However as per the proviso of the same section ‘if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.’ There was apparent gender bias in un-amended Section 6 of Hindu Succession Act 1956, as Daughter was not a Coparcener and interest could be devolved only by survivorship and female could get only in case of exigency.
Position after Hindu Succession (Amendment) Act 2005: On the recommendation of 174th report of Law Commission of India on “Property Rights of Women: Proposed Reform under the Hindu Law”, the perpetual inequality embedded in the Hindu Succession Act 1956 was removed by the Hindu Succession (Amendment) Act 2005 following the spirit of Constitution i.e right to equality and as per the Amended Section 6 daughter became coparcener by birth
Amended Section 6 of the Act is apparently prospective in nature as it states:”…On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener..”
The plain reading of the amended section 6 unequivocally states that daughter of the coparcener became coparcener by birth in the same manner as son with same rights and liability as son. It is repeated that rights of the coparcener include ‘right to call for Partition’. However legislation protected the past transactions in the proviso to Section 6 which states,”… nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004 .” Hindu Succession (Amendment) Bill 2004 was introduced in Rajya Sabha on 20.12.2004 and the partitions that has been effected before 20.12.2004 remained untouched. The term “partition” as per explanation added to amended Section 6, means: deed of partition registered under Registration Act, 1908 or Partition effected by a decree of court.
Conflicting judgments & interpretation interplay: In Prakash v. Phulavati (2016), Supreme Court held that Amended Section 6 is not retrospective in operation and is applicable only in case of living daughters of living coparceners. Meaning thereby in case a father has died before 2005 his share has already devolved by survivorship notionally as per un-amended section 6, the concept of ‘registered partition’ or ‘partition by decree of court’ as per explanation to Amended Section 6 can have no application to the statutory notional partition under un-amended section. Whereas in the case of Danamma @ Suman Surpur & Anr. v. Amar (2018) in somewhat similar facts Supreme Court granted share of coparceners to the daughters applying Amended Section 6. But Prakash v. Phulavati (2016) remained a precedent.
Now the Supreme Court settled the unsettled labyrinth around coparcenary and birth of daughter in pre or post 2005 amendment, death of father (coparcener) before 2005 amendment and impact of notional or oral partition before 2005 amendment on coparcenary rights of daughters. While answering the reference Supreme Court held that ‘…Amended Section 6 of Hindu Succession Act confers the status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities. The rights can be claimed by the daughter born earlier with effect from 09.09.2005 with savings as provided in Section 6(1) as to the depositions or alienation, partition or testamentary disposition which had taken place before 24.12.2004. Right in the Coparcenary is by birth, it is not necessary father coparcener should be living as on 09.09.2005(date of amendment). It is also said that statutory notional partition under un-amended section 6 does not bring an end to Coparcenary. The Supreme Court has also taken the cautious view of the fact that the in order to deprive the daughter of the benefits of amended provisions the defense may be taken of oral partitions made before 2005 amendment. Therefore keeping in view the object of the beneficial amendment, Supreme Court stated that only registered partitions and partitions through final decree of the court before 24.12.2004 are recognised and cannot be re-opened and plea of oral partition may be accepted only in case of exceptional circumstances when supported by public documents of contemporaneous period with highly cautious approach and only oral evidence in support plea of such oral partitions shall be out rightly rejected.
The judgment has certainly clarified the intent of legislation and cleared the interpretational ambiguity so that gender justice remains supreme. We, as a society must acknowledge, it’s better to ensure gender equality to daughters than to just attach religious adorability to them, as rightly quoted in the judgment “A son is a son until he gets a wife. A daughter is a daughter throughout her life.”
(The author is an Advocate-on-Record in Supreme Court)
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