The Vineeta Sharma v. Rakesh Sharma
 case revolves around the concept of the coparcenary rights of the daughter and the Hindu Succession Act. Before the
ancient Mitakshara Law of Hindu was followed by the Hindu Succession in the vast
regions of India excluding some regions of West Bengal and Assam, The Hindu
Succession Act was enacted in the year 1956. The devolution of the property
after the Hindu male demise and following the rule of survivorship for the same
purpose was mentioned in section 6 of the Hindu Succession Act, 1956.
Initially, daughters by birth had neither coparcenary rights to directly inherit
the father's property nor the right to inherit the ancestral property of the
joint Hindu family. The amendment act, of 2005, was passed with the main motive
to furnish equality. This act brought the right to coparcenary for the daughters
from their birth. This provided the daughter to have the equal rights as the
sons have from their birth, by virtue of the 2005 Amendment to the Hindu
Succession Act's replaced Section 6.
The legislation amendment was made in a fair intention, trying to erase the
negative effects of past discrimination. However, the legislation at some point
lacks in its applicability or enactment.
This has sparked various concerns such
Background of the case:
- Whether the effect of the amendment is retrospective or prospective?
- will it be declaring the changes void that are already accomplished?
- It may also bring back the questions which were already tried and
The Hindu Succession (Amendment) Act, 2005 was enacted on 9 November 2005 to
further amend the Hindu Succession Act 1956, giving coparcenary rights to
daughters by birth as same as that of sons under Section 6 (1) (a) of the Hindu
Succession Act, 1956 mentioning that the daughter of a coparcener shall by birth
become a coparcener in her own right in the same manner as the son.
The question was: Can the coparcenary rights be claimed by the daughters born
Another question that arose was that is it mandatory or required to have the
daughter and the father both alive on 9 November 2005 in order to effectuate the
provisions of the amended section or not.
The Honorable Supreme Court attempted such questions and answered in the
Prakash & others v. Phulvati & others:
The Supreme Court held that the nature of the Amendment Act 2005 is not of a
retrospective nature but of a prospective nature, similarly, the rights granted
to the daughter under section 6 of the Amendment Act 2005, is applicable to the
living daughter of a living coparcener to be alive as on 9 November 2005 to
permit the daughter to claim rights over the property of the coparcener.
case, the coparcener has died before the 2005 amendment and therefore, it was
held by the apex court the daughter is not entitled to claim the property of the
coparcener because she is not a daughter of a living coparcener.
Danamma @ Suman Surpur v. Amar
In this case, the court has not specifically dealt with the concept of a living
daughter of a living coparcener.
The court took a different stance from that in the Phulavati case mentioned
above and held that daughters have equal rights in the coparcenary property as
that of sons, even though the coparcener had passed away before the amendment of
From the observation of the above-mentioned cases, an appeal was made to the
Supreme Court in Vineeta Sharma v. Rakesh Sharma, raising similar questions
before the Honorable Supreme Court and bearing in mind the decision of the
above-mentioned cases namely Phulavati and Danamma Case. Considering the
contradicting decisions in the above-mentioned cases the issue was referred to a
larger bench constituting three Judges of the Honorable Supreme Court.
Issues Before the Honorable Supreme Court:
Arguments made by the Solicitor General of India on behalf of the Union of India
- Does the Amended Section 6 of the act of 2005 requires the
coparcener to be alive as on 9 November 2005, in order to enable the
daughter to claim the rights of the coparcenary property?
- Whether the amended section 6 of the Act of 2005 is prospective,
retrospective, or retroactive?
Appearing on behalf of the Union of India, Shri Tushar Mehta made reasons that
were consistent with the verdict itself. He maintained that real partitions
completed before December 20, 2004, when the Rajya Sabha announced the amendment
bill, should not be challenged since doing so would harm the legal position.
Since the death of the coparcener/father does not always mean the end of
coparcenary-which may continue with other coparceners living-the Solicitor
General acknowledged that a coparcener's father need not be alive during the
amendment act for a daughter to enjoy coparcenary rights.
Arguments contented by the learned Senior Counsel and Amicus Curiae, Mr. R.
According to Shri R. Venkataramani, who contended as an amicus curiae, both of
the prior rulings found that the clauses are of a future character, hence there
is no inconsistency between these rulings. He argued that the Amendment Act, not
the fact that she was born, is the only reason why a daughter is treated equally
to a boy in terms of coparcenary rights.
If the father/coparcener is no longer
alive, the daughter will not inherit the remaining coparcenary stake.
His arguments state that if the law is applied to the daughter as if she were a
co-defendant prior to September 9, 2005, there will be a great deal of doubt. He
claims that the parliament's objective is to move toward the future and that it
has no desire to revisit the past or scramble an uncooked egg.
According to Shri V.V.S. Rao, an amicus curia, the future perfect tense and
plain language have equal rights, and phrases like "on and from" in section 6(1)
of the Hindu Succession Act, 1956 and "become," "have," and "be" show that
the parliament intended to apply the Amendment Act's provisions prospectively
rather than retrospectively.
A daughter to become the coparcener, it is not
required that a daughter be born before 2005, i.e., a daughter born before or
after 2005, can be considered as a coparcener. He further contended that the
coparcener or the father should be alive as on 9th November 2005, as if in any
case the coparcenary is being disrupted by either the act of a party or the
death of any one or more parties, then there will be no coparcenary property,
that can be inherited by the daughter.
The Position of the Law cannot be altered
because the status deliberated cannot disturb the past transaction of
alienation, disposition, and partition either in oral or written. Therefore,
according to him, there should be a living coparcener in order to entitle the
daughter to inherit and become a coparcener.
On behalf of the Respondent, Shri Sridhar Potraju contended that if a division
had actually occurred, it should be acknowledged. He argued that a preliminary
order should be regarded as final since it indicates that the Hindu family's
jointness has terminated with the simple filing of the complaint for division.
He argued and reaffirmed that the provisions are intended to be prospective in
nature because such interpretation is not desired, which would take away the
crystallized rights of the surviving coparcener and, as a result, result in
settled issues being unsettled. Using Uppaluri Hari Narayana & Ors. as a
foundation. He emphasized that because the rules are not retroactive,
liabilities may only be passed to the daughter as of the modification date.
The aim and goal of the Amendment Act, which is to eliminate the discrepancy
between sons and daughters, would be defeated, according to Shri Amit Pai and
Shri Sameer Shrivastav, if both the coparcener and the daughter were still
living after the Amendment Act's implementation.
They maintained that coparceny
only occurs after birth and that adoption is the only circumstance in which it
occurs. They do, however, agree that if a partition is really implemented, the
daughter should not request a division of the property that has already been
In this case, the Supreme Court's Bench referred to the several principles of
Hindu Law, both codified and customary for instance Coparcenary and Joint Hindu
family, unobstructed and obstructed heritage along with catena of Judgments.
After examining these things, the court observed that joint Hindu Family
property is an unobstructed heritage.
The right of Partition in this type of
property is absolute and it is given to a person by the virtue of his or her
birth. However, the separate property is known as obstructed heritage in which
the right to ownership and partition is obstructed by the death of the owner of
separate property. In an obstructed heritage, one does not have the right by
birth, however, it depends upon the death of the owner.
By observing the
mentioned situations, Honorable Supreme Court held that the right to partition
is by the birth of a daughter (an unobstructed heritage). It is irrelevant if
the father coparcener is dead or alive on the date when the amendment was
endorsed. Hence, the court overruled the judgment of Phulavati v. Prakash and
contended that coparcenary rights pass from the father to his living daughter
rather than "from a living coparcener to a living daughter."
While overruling the Phulavati and Danamma Judgment the court held that the
outcome of Section 6 of the Act is neither prospective nor retrospective in
nature, but it is of retroactive in nature. The principles of prospective,
retrospective, and retroactive were explained by the honorable Supreme Court,
mentioning that the application of the retroactive law is hooked on the feature
or the occurrence on the part or the stipulations that were drawn from past
The court itemized that Section 6 (1) (a) of the act contains the
definition of the Mitakshara coparcenary's unobstructed heritage (conferred
by birth), as the right is given by the birth it is an antecedent case, the
provision is applied on and from the date of the amendment act is enacted,
therefore, it makes it retroactive. In addition to this, the court added that
Section 6 (4) illuminates that Section 6 provisions are not retrospective. By
this approach, the cleared the lacuna of the law.
The Vineeta Sharma decision has resolved any remaining legal ambiguity and made
it apparent that the Hindu Succession Act change that gives daughters the same
right to inherit ancestral property will have a retroactive impact. The court
also believed that it was against Article 14, which guarantees equality before
the law, to base someone's inheritance rights on their gender. All the
uncertainty that the Phulavati and Danamma case generated has been
satisfactorily addressed by this decision.
Written By: Pooja Yadav
- Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1
- Hindu Succession Act, 1956, No. 30, Act of Parliament, 1956 (India)
- Hindu Succession Act 1956, Section 6, No. 30, Act of Parliament, 1956 (India)
- The Hindu Succession (Amendment) Act, 2005, No. 39, Act of Parliament, (India)
- Prakash & others v. Phulavati & others (2016) 2 SCC 36
- Danamma @ Suman Surpur v. Aman (2012) 3 SCC 343
- Hindu Succession Act, 1956, Section 6 (1), Act no. 30, Act of Parliament (India)
- Sistla Sarada Devi v. Uppaluri Hari Narayana, 2018 SLP No. 38542/2016
- Hindu Succession Act, 1956, section 6 (1) (a), No. 30, Act Of Parliament (India)
, B.A. LLB(Hons.), 3rd year - Amity University,