S.Basavaraj, Advocate, Daksha Legal, Bangalore
The recent judgment of the Supreme Court in Vineeta Sharma vs Rakesh Sharma decided on 11 August, 2020, has cleared many confusions and doubts. Importantly, many pending disputes have been resolved in the Mega Lok-Adalat conducted by the Karnataka State Legal Services Authority on the basis of this judgment. This article which is in continuation of my earlier Article published on http://www.livelaw.in on 23 October 2019, titled “Amended Section 6 of Hindu Succession Act Cauldron of confusions”, – web link to the publication – https://www.livelaw.in/columns/amended-section-6-of-hindu-succession-act-cauldron-of-confusions-149178 makes an effort to analyse the legal position starting from the State Amendments to Vineet Sharma judgment. The article focuses on Mitakshara School of Hindu Law.
Shastric and customary law, varying from region to region, governed Hindus prior to 1956. Under the Mitakshara School of Hindu Law, woman in a joint Hindu family had merely a right of maintenance/sustenance but had no right of inheritance to property. Common male ancestor was the basis. The family properties were held as a coparcenary. Male members of the family had right to the property by virtue of birth. Their interest in the coparcenary property would keep varying depending upon the death or a birth of a male in the joint Hindu Family. The property of a male coparcener on his death used to pass by survivorship in the Mitakshara School of Hindu Law. No female was a member of the coparcenary though, she was a member of the joint Hindu family. The coparcenary would normally consist up to four degrees i.e. the common ancestor (coparcener), his son, grandson and great grandson.
The Constitution of India which came into force on 26 January 1950 removed discrimination against women and made equal treatment of women a part of the fundamental rights (Articles 14, 15(2) & (3) and 16). To achieve this objective, the Parliament enacted the Hindu Succession Act, 1956. However, the discrimination against women continued even under this Act since the Act did not provide any rights to the daughters in the coparcenary property. The only right of the daughter would be to get a notional share in the father’s share in the coparcenary property that too after his death.
Section 6 retained substantially the Rule of survivorship. However, the proviso provided that if the deceased coparcener has any female relatives specified in Class I of the Schedule to the Act, then the property will devolve by succession. (The proviso is interpreted by the Supreme Court in Uttam v. Saubhag Singh, (2016) 4 SCC 68)
State Amendments: The State Legislatures of Andra Pradesh, Karnataka, Kerala Maharashtra, and Tamil Nadu amended the Hindu Succession Act, 1956 in 1990 to bring gender equality. The Karnataka Amendment provided that the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son (Section 6A). However, the section is inapplicable to a daughter married prior to or to a partition which had been effected before the Amendment Act.
The Law Commission in its 174th report of May 2000 called for gender reforms taking note of the steps taken by Kerala, Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka.
The resultant position was Act 39 of 2005 which came into force on 9 September, 2005 conferring the status of coparcener on the daughter by birth and share in the ancestral property. Married daughter were also included. However, the amendment excluded disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004, the date of introduction of the Bill in Rajya Sabha.
Effect of State amendments. One of the State amendments (Karnataka) came into force with effect from 30 July 1994. The Division Bench of the Karnataka High Court in Padmavathi and another vs Jayamma and others, Regular First Appeal 916/2014 decided on 15 May 2020 held that the State amendment holds the field from 30:7:1994 to 9:9:2005. The applicability of the Karnataka Amendment during this period is subject to limitations provided in the amendment itself. Learned single judge of the Karnataka High Court has in H.P. Chikkarama Reddy and another vs Kanthamma and others. Civil Revision Petition 431/2014 decided on 14 September 2020, held that even when the ancestral property was partitioned and sold prior to 2005 amendment, a suit for partition by daughter is maintainable under the 1994 Karnataka amendment. (The effect of Vineet Sharma judgment is discussed in the later paragraphs)
Immediately after the Central amendment, the question regarding prospective or retrospective operation of the amendment cropped up before few high courts. One set of argument was that in the absence of express provision or implied intention to the contrary, an amendment dealing with a substantive right is prospective and does not affect the vested rights. If a coparcener had died prior to the commencement of the Amendment Act, succession opens on the date of the death as per the prevailing provision of the succession law and the rights of the heirs get crystallised even if partition by metes and bounds does not take place and that the amendment cannot re-open the partition. The counter argument was that the amendment being piece of social legislation to remove discrimination against women in the light of 174th Report of the Law Commission, the amendment should be read as being retrospective.
The division bench of the Karnataka High Court in Pushpalatha N.V. v. V. Padma, ILR 2010 Kar 1484 took the view that the amendment is retrospective in its operation. The court held that the status of a coparcener is conferred on the daughter on and from the date of the commencement of the Amendment Act and the right is given to her by birth. However the Court said, to be eligible under the amended section, she must have born after 17:6:1956, the day on which the Act came into force. Therefore, the court said by substituted Section 6, the daughter of a coparcener in a Joint Hindu Family governed by Mitakshara Law has been conferred the status of a coparcener by birth and conferred same rights in the coparcener properties as she would have had if she had been a son. Simply put, the Karnataka High Court held that a woman is conferred with coparcener status by birth provided she was born after the Hindu Succession Act 1956 came into force. The Court also held that the woman would get a right in ancestral property “on her own” whether her father is alive in 2005 or not.
The interpretation of the amendment came up for consideration before full bench of the Bombay High Court in Badrinarayan Shankar Bhandari and others vs Omprakash Shankar Bhandari decided on 14 August 2014. The Bombay High Court framed, inter alia, the following questions for consideration.
“(a) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 is prospective or retrospective in operation?
(b) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies to daughters born prior to 17:6:1956?
(c) Whether Section 6 of the Hindu Succession Act, 1956 as amended by the Amendment Act, 2005 applies to daughters born after 17:6:1956 and prior to 9.9.2005?
(d) Whether Section 6 of the Hindu Succession Act,1956 as amended by the Amendment Act,2005 applies only to daughters born after 9:9:2005?
On question (a), the full bench held that, bearing in mind the words ‘on and from commencement of the Hindu Succession Act, 2005’ found in Section 6, the rights under the amended Section 6 can be exercised by a daughter of a coparcener only after the commencement of the Amendment Act 2005. The Court held that the daughter who seeks to exercise such a right must herself be alive at the time when the Amendment Act, 2005 was brought into force. The court didn’t make distinction between the daughter born before 1956 or after 1956. The only requirement, the court held, is that when the Act is being sought to be applied, the person concerned must be in existence/ living.
While the Karnataka High Court held that by substitution the amended provision is there in the principal Act from 1956 itself and that the daughter born after 1956 is conferred coparcener status “retrospectively” by birth, the Bombay High Court held that the daughter is conferred coparcener status only with effect from 9 September 2005. However, by construing the amended section “retroactive” in operation, the Bombay High Court held that the Amendment Act applies to daughters born even before 1956 provided daughter is alive on the date of coming into force of the Amendment Act.
On questions (b), (c) and (d), the Bombay High Court held that the amended Section 6 applies to daughters born prior to 17 June 1956 or thereafter, provided they are alive on 9 September 2005 that is, on the date when the Amendment Act of 2005 came into force and that undisputedly the amended Section 6 applies to daughters born on or after 9:9:2005.
On the interpretation of the proviso to section 6(1) (saving partitions of property which had taken place before the 20th December, 2004), Both Karnataka and Bombay High Courts relied on Ganduri Koteshwaramma v. Chakiri Yanadi, (2011) 9 SCC 788 that a preliminary decree determines the rights and interests of the parties and that the suit for partition is not disposed of by passing of the preliminary decree and that it is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds.
Another division bench of the Karnataka High Court in Phulvati vs Prakash (AIR 2011 Kar 78) followed the judgment in Pushpalatha N.V. v. V. Padma, ILR 2010 KAR 1484. This judgment was challenged before the Supreme Court. The Supreme Court rendered its judgment in Prakash v. Phulavati (2016) 2 SCC 36 on 30 November 2015.
The Hon’ble Supreme Court in Prakash v. Phulavati (2016) 2 SCC 36 held that that the right conferred on a “daughter of a coparcener” is “on and from the commencement of the Hindu Succession (Amendment) Act, 2005”. The Court noticed absence of an express provision for giving retrospective effect to the amended provision. The Court held that the rights under the amendment are applicable to “living daughters of living coparceners as on 9:9:2005” irrespective of when such daughters are born. It also held that disposition or alienation including partitions which may have taken place before 20:12:2004 as per law applicable prior to the said date will remain unaffected.
The confusion. (i.e. till 2019). The subsequent judgment of the Supreme Court in Danamma v. Amar, (2018) 3 SCC 343 created confusion for, it granted share in ancestral property to a daughter under the amendment even though the father died in the year 2001. As a matter of fact, in the first paragraph itself the Supreme Court takes note of the fact that father Gurulingappa Savadi died in the year 2001 leaving the daughters. However, the Supreme Court granted share to daughters even in the ancestral properties. At the same time, the Supreme Court relies on Prakash v. Phulavati in paragraphs 21 and 23 with approval.
Danamma vs Amar resulted in insinuations as though the earlier decision in Prakash v. Phulavati was impliedly overruled. Several suits were instituted on behalf of daughters claiming right in ancestral properties though the father died much before 2005. Few suits were even decreed.
The judgment in Danamma v. Amar was later clarified in Mangammal v. T.B. Raju, (2018) 15 SCC 662. The Supreme Court in Mangammal declared that Prakash vs Phulvati would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property. Shortly put, the Supreme Court reiterated that only living daughters of living coparceners would be entitled to claim a share in the ancestral property.
The declaration of law in Prakash vs Phulvati, the confusion created by Danamma v. Amar and the later clarification in Mangammal v. T.B. Raju was taken note of by the Delhi High Court while delivering judgment in RFA 301/2017. The High Court granted certificate of fitness to appeal.
The Supreme Court referred the issue to a larger bench in Vineeta Sharma vs Rakesh Sharma (2019) 6 SCC 164. It may be noted that all the three judgments aforesaid were rendered by the bench of two judges.
The three judges bench of the Hon’ble Supreme Court delivered the judgment in Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 on 11 August 2020 holding that;
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005.
(iv) The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(v) In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been effected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.
(vi) In view of the aforesaid discussion and answer, the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju are overruled. The opinion expressed in Danamma v. Amar is partly overruled to the extent it is contrary to this decision.
Effect of Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1
(i) Daughter of a coparcner, who is alive in 2005, can claim partition of coparcneray property whether her father is alive in 2005 or not.
(ii) Such claim is subject to conditions found in amended Section 6 as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004.
(iii) Though the amendment says that only registered partitions are recognised (to non-suit daughter), in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been effected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly. To this extent, the Supreme Court has read down provisions of the amended section.
(iv) Since the amendment creates a vested right, the children of female coparcener can sue for partition if the daughter dies after 2005. (my interpretation)
Effect of Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 on State amendments:
The Karnataka State amendment held the field from 30:7:1994 to 9:9:2005 (Padmavathi and another vs Jayamma and others, Karnataka High Court (supra). This view was taken relying on Prakash vs Phulvathi which gave prospective effect to amendment so far as a daughter whose father demised prior to 2005. In view of Vineet Sharma, the amendment holds the field retrospectively provided the daughter is alive in 2005.
However, the State amendments assume significance if the State amendment had created a vested right in favour of daughters. This is explained as hereunder. Suppose a daughter was unmarried in 1994 when the State amendment came into force and she gets married in 1997. The coparcenary properties were not partitioned or alienated. She gets a right to sue for partition under the State amendment. However, she dies in 2003 leaving behind her, a son. Under the Central amendment no share could be allotted to her son since the right accrued only in 2005. However, if the State amendment conferred vested right in her, her son can sue for partition even after 2005 amendment relying on the State amendment.
There is a clear indication in the State amendment that the right conferred on a daughter is a vested right which can be enforced even after her death.
Few questions:
Whether female coparcener who acquires ancestral property under the amended Section 6 takes it absolutely or whether her children also acquire a share in such property by survivorship and sue her for partition of such property?
Whether the coparcenary system continues even in female coparcener family.?
On questions 1 and 2, there are indications to contend both ways i.e the female getting the property absolutely and also that her children getting share in such property by birth and sue her for partition of such property. The following extracts from the amendment support the view that the property acquired by the female under the amended Section 6 is available for partition in the hands of her children by survivorship
(a) the daughter of a coparcener shall, 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”
(d) 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”These words clearly indicate continuance of coparcenary system even female’s family.
One can invoke Section 14 of the Act to confer absolute right on the female in the ancestral properties acquired in a family partition as above said. However, the words “notwithstanding anything contained in this Act, or any other law for the time being in force”, may oust applicability of Section 14. The words “as property capable of being disposed of her by testamentary disposition” refers only to her share.
A categorical declaration in this regard is needed. Several suits are already being filed by the children of female coparcener seeking partition. Few courts have dismissed such suits invoking Section 14. The issue has not reached any High Court so far.
Daksha Legal 