In a recent Judgment dated 11-08-2020 passed by the #SupremeCourt in Vineeta Sharma vs Rakesh Sharma and Others Civil Appeal No. 32601 of 2018 decided along with 7 connected SLPs, a Special Bench of the Supreme Court consisting of J. Arun Mishra, J. S. Abdul Nazeer and J. M.R. Shah decided the issue of the #rights of #daughters in a #coparcenary #property.
The Supreme Court decided the question concerning the interpretation of Section 6 of the #HinduSuccessionAct 1956 (the Act of 1956) as amended by the Hindu Succession (Amendment) Act 2005 (the Act of 2005) and decided the conflicting verdicts rendered in two Division Bench Judgments of the Supreme Court in Prakash and Ors. v. Phulavati and Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur and Anr. v. Amar and Ors., (2018) 3 SCC 343. As there were other connected matters pertaining to issues arising out of a daughter’s right to property, these SLPs were also decided simultaneously.
The Act of 2005 amended Section 6 of the Act of 1956, thereby allowing for the first time a daughter to be given the same rights by birth as a son in case of property. Section 6 of the Act of 2005 has been reproduced for easy reference:
Devolution of interest in coparcenary property.―
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 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 the same manner as the son;
(b) have the same rights in the coparcenery property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenery 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:
Provided that 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.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and,―
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
A brief historical overview of the Hindu Law would enable the Reader to understand the change in law. The Hindu Law is influenced and emanates from the Vedas. Over a period of time, this Law has evolved by the requirements of society. As law is dynamic and progressive, interpretations of law over a period of time has brought it to the current form. In 2005, the rights of a daughter (married or unmarried) was considered and the Act of 1956 was amended to give the daughter equality of status and recognition as a coparcener having the same rights as a son by virtue of birth. A coparcener generally gets his/her right by birth. However, a coparcener can also get a right by way of adoption. Prior to the Amendment, a woman enjoyed the status of being a member of Joint Hindu Family but not as a coparcener. She now therefore has a right to demand partition of property at par with that of a man who is also deemed to be a coparcener.
Under the Proviso to Section 6 of the Act of 2005, in case a coparcener dies leaving behind a female relative of Class 1 Heir, the said relative would be a coparcener and her right as a coparcener would be recognised. However, that is not to say that the rights of the daughters would in any manner affect the rights of other relatives as it stood before Amendment. With the advent of the Act of 2005, the rights of the wife of a coparcener is also entitled to equal share.
The Supreme Court after hearing Parties on both sides in the main Petition and connected matters, decided the reference as follows:
1- The substituted Section 6 of the Act of 2005 confers the status of coparcener on the daughter born before or after Amendment of 2005 in the same manner as a son and with the same rights and liabilities.
2- The rights can be claimed by the daughter born earlier but with effect from 09-09-2005 with reference to disposition or alienation or partition or testamentary disposition which had taken place prior to the Amendment.
3- Since the right is by birth, it is not necessary that the father of the coparcener should be living as on 09-09-2005.
4- The statutory fiction of partition in the Act of 1956 was only for the purpose of ascertaining the share of a coparcener. However, under the current law the coparcenery share can be partitioned.
The Supreme Court concluded by stating that matters pertaining to a daughter’s rights under the Act of 2005 has been unduly delayed due to legal imbroglio caused by conflicting decisions and directed that all pending matters pertaining to a daughter’s rights should be decided as far as possible within 6 months from the date of this Judgment. By this Judgment, the Supreme Court overruled the views to the contrary expressed in Prakash and Ors. v. Phulavati and Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur and Anr. v. Amar and Ors., (2018) 3 SCC 343.
Sushila Ram Varma
The Indian Lawyer