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Vineeta Sharma v. Rakesh Sharma; An Case Analysis

The case revolves around the concept of joint Hindu family and coparcenary rights of the daughters. The Hindu succession act was enacted in the year 1956 and before that Hindu succession followed the procedure according to ancient Mitakshara law of Hindu in major regions of India except some regions of West Bengal and Assam[1]. Section 6 of the Hindu succession act 1956 dealt with the devolution of property after the death of a Hindu male and the rule of survivorship was followed for the same purpose.

Consequently daughters were not having coparcenary rights and could only directly inherit property of the father and had not right to inherit the ancestral property of the joint Hindu family by birth. The amendment act of 2005, inter alia, with an objective to furnish equality, brought the right to coparcenary for daughter from their birth. Now daughters also had equal rights, same as that of a son, by virtue of substituted section 6 of the amended Hindu succession act, 2005.

Although intention of the legislators was to make good what can be construed as negative effects of discrimination in the past, but the legislation had its fair stakes of anomalies in its application in practicality. Whether its effect is retrospective or perspective? Will it undo the changes already completed in past? And many other questions which were already attempted and answered by the apex court before. However, more than one verdict was given which had conflicting ratio dicidendi. The same conflict is aimed to be conciliated by the judgement, Vineeta Sharma v. Rakesh Sharma[2] , decided on 11 august 2020.

Background of the case
Amended section 6 conferred full coparcenary rights to the daughters as same as that of sons. The amendment act was enacted in 9 November 2005.But the section 6(1(a)) conferred coparcenary rights on daughters by birth. So the question arose will a daughter born before 2005 will get the coparcenary rights or not. Other associated question was whether the daughter and father both need to be alive on 9 November 2005 to effectuate the provisions of the amended section or not.

These questions were answered in Prakash & Ors. V. Phulvati and Ors.[3]. Supreme court held that the provisions have a prospective effect and the coparcenary rights will be conferred to a living daughter of a living coparcener, which meant that both father and daughter had to be alive on 9 November 2005.

Whereas, in [email protected] Suman Surpur & Anr. V. Amar & Ors.[4]; Gurunalingapa died in the year 2001, leaving behind two daughters, two sons, and a widow. Coparcener’s gather was not alive when the substituted provision of section 6 came into force. The daughters sons and the widow were given 1/5th share apiece. This judgement was not in alignment with the abovementioned judgment and hence a contradiction in law arose.

Both judgements passed earlier were dictated by a divisional bench constituted of two judges. So in Vineeta sharma v. Rakesh Sharma a three judge constitutional bench was setup to resolve the issues and give the correct interpretation of section 6 of the amended Hindu Succession Act, 2005.

Seven other cases were concurrently looked into with this judgement which dealt with the same area of law and were very relevant to the facts of the current cases.

Fact of the issue
The following fact of the issues have been answered in the verdict by the apex court
  1. Whether the father coparcener should be living as on 9 November 2005?
  2. Whether a daughter born before 9 November 2005 can claim equal rights and liabilities in coparcenary as that of a son?
  3. Whether the statutory fiction of partition created by proviso to section 6 of the hind succession act, 1956 as originally enacted bring about the actual partition or disruption of coparcenary?
  4. Whether a plea of oral partition after 20 December 2004 can be accepted as the statutory recognised mode of partition?

Arguments
Shri Tushar Mehta, appearing on behalf of the Union of India, presented arguments that were in line with the actual judgement itself. He argued that genuine partitions effectuated before 20.12.2004, which was the date of announcement of the amendment bill in the Rajya sabha should be left untouched as it would adversely affect the position of law, if they were questioned. It was agreed upon by Solicitor general that a coparceners father need not be alive during the amendment act for daughter to have coparcenary rights, as ‘(T)he death of the coparcener /father does not automatically lead to the end of coparcenary, which may continue with other coparcener alive.’

Shri R. Venkataramani, who argues as amicus curiae argued that in both of the previous judgements it is held that the provisions are of prospective nature and hence there is no conflict between these judgements. He contended that the reason why daughter is treated equal to son in reference to coparcenary rights is only because of the amendment act and not because she was born. The father/coparcener must be a living coparcener or otherwise there will be no coparcenary interest left as to succeed to the daughter.

According to his arguments, if daughter will be treated as if she was a coparcener before 09.09.2005 an ‘enormous uncertainty’ will occur in the ‘working of the law’. He states that ‘(T)he parliament has not intended to scramble the unscrambled egg or to resurrect the past’, and accordingly, the intention of the parliament is forward looking.

Shri V.V.S. Rao, learned amicus curia argued that the plain language and future perfect tense ‘ shall have the same rights’ and phrases like ‘ on and from ‘ in section 6(1) , and words like ‘become’, ‘have’, ’be’ indicate that the intention of the parliament was to apply the provisions of the Amendment act prospectively and not retrospectively. He asserted that the daughter will be subject to pious obligation only from 09.09.2005 and no for any property acquired before this date.

He further argued that the father/coparcener should be alive as on 09.09.2005 because if the coparcenary was disrupted by the act of parties or death of any one or more parties, there will be no coparcenary property intact, which may be inherited by the daughter. This position of law cannot be changed as ‘the status conferred cannot affect the past transactions of alienation, disposition, and partition oral or written’. And hence he concluded that there should be a living coparcener so that the daughter may inherit and become a coparcener.

Shri Sridhar Potraju, on behalf of the respondent, argued that if a notional partition has taken place it should be recognised. He contended that a preliminary decree should be considered to be finalised as it denotes that the (J)ointness of the Hindu family has ended with ‘mere filing of the suit for partition’. He asserted and reiterated that the provisions are meant to be prospective in nature because such interpretation is not sought through which crystallised rights of the surviving coparcener are taken away and consequently, settled affairs are unsettled. Relying on Uppaluri Hari Narayana & Ors. He reiterated that liabilities can be transferred to the daughter only from the date of amendment as the provisions are not retrospective. He further asserted that all past transactions should stay protected from any effects of the amendment as On a statutory partition, the property becomes the self-acquired property and is no more a coparcenary property.

Shri Amit Pai and Shri Sameer Shrivastav argued that if both the coparcener and the daughter should be alive after the commencement of the Amendment act, it would defeat the purpose and objective of the act which is to abolish the disparity between sons and daughters. They argued that coparcenary arises due to birth and only exception to this rule is the process of adoption. However, they agree on this point that if a partition is genuinely effectuated then the daughter should not seek partition of already divided property.

Verdict of the court
The court, based on authorities and past judgments passed by it, observed that joint Hindu family property is unobstructed heritage. In this type of property the right of partition is absolute and given to a person by the virtue of his/her birth. In contrast, separate property is obstructed heritage in which right to ownership and partition is obstructed by the death of the owner of the separate property. In case of obstructed heritage right is not by birth but depends upon the death of the original owner of the separate property. Based on these observations the apex court decided as the right to partition is created by the birth of the daughter (unobstructed heritage), it is immaterial if the father coparcener was alive or dead on the date in which the amendment was effected. Hence it overruled the verdict given in Phulvati vs prakash and ruled that the coparcenary rights pass from father to a living daughter and not from ‘a living coparcener to a living daughter’.

The court, overruling the phulvati and dannmma judgement, ruled that the effects of the provisions of section 6 are neither prospective in nature nor retrospective; but it is retroactive in nature. The concept is explained by the Apex court and means that the equal right of coparcenary will be given to daughter on and from 9 November 2005 but it is based upon some past event i.e. the birth of the daughter. The effects are retroactive as if the daughter never took birth, which is in past, the rights would never have existed in the first place. This approach of the court cleared the lacuna in law as to what effect, in relevance to time, these provisions have.

The court also held that notional partition doesn’t mean that actual partition has been effectuated. As notional partition is a legal fiction, it should be used and implied up to a certain limit and to only fulfil the purpose it was created for. In this case, a notional partition is created as to ascertain the share of each coparcener of the joint Hindu family. The court reiterated that the ascertainment of the shares distributed and fixated upon notional partition are not final, as the birth of a new coparcener or the death of any existing coparcener can either increase of decrease the shares of the other coparceners. It also ruled that, consequentially, a daughter can claim a share in the joint family property even if notional partition is done before 9 November 2005 as the notional partition is not an actual partition and just because of it, the coparcenary property doesn’t cease to exist.

Further, answering the question raised by the defendant, that section 97 of the code of civil procedure[5] says that if a suit is not filed by any of the parties contending the preliminary decree in finite time, then the preliminary decree is deemed to be final, supreme court said that in this case it is mentioned in the section that if the parties do not file a suit then the abovementioned section is applicable but not if a third person is involved. Court, based upon past verdicts, also said that a preliminary decree is not final and even after the preliminary decree is only passed to ascertain the shares of individual coparceners. It is the final decree that effectuates an actual partition. It was reiterated that even after a preliminary decree is passed, the quantification of shares may change subject to birth of a new member or death of any existing member.

They highlighted the fact that it was nowhere mentioned in the civil procedure code that multiple preliminary decrees cannot be passed. Taking into consideration all the above reasoning, the apex court decided that even if a preliminary decree has been passed by a court, it is the duty of a court to take into consideration any amendments in the law before issuing the final decree and as a result a daughter can claim coparcenary rights even after a preliminary decree has been passed on that matter. The most significant statement used by the court in this regard is a preliminary decree is not final by metes and bounds.

The court observed that the legislation is clear in terms that any partition effectuated before 20 December 2004 will not be invalidated by the effects of the amended provisions. But it found it necessary, to evade bogus and fake partition just to deprive the daughter of its equal rights, the partitions completed after the on and after 20 December 2004 should be a genuine one. To check the same, the court held that any partition effectuated after 20 December 2004 must be a registered one or a partition effectuated by a decree of the court, and as settled earlier it should be a final decree.

The court also ruled that an oral partition cannot be claimed as a defence, if the partition effectuated is not so, following the above mentioned courses. The court opined that this is a general rule, although, some of the oral partitions may be genuine too and in those cases an exception can be made. But the liability of proof will be heavy on the defence to prove the genuineness of the oral partition.

For that purpose, one or more of the following cases and evidence for the same must be produced before a court of justice:
  • Separate possession of family:
    if a partition is actually effectuated the members must be living separately, as the institution of a joint Hindu family should have been dissolved anterior to the partition.
     
  • Appropriation of income:
    if the joint family is separated and partition has been effectuated, the income of the family members must be appropriated differently or in case of a business the enterprise must have been divided and shared.
     
  • Entry in revenue records:
    there must be adequate entries in the revenue records corroborating the fact that different members of the family have been separated.
     
  • Other public documents:
    the court emphasized that an official public document confirming that the partition has been actually effectuated must be produced before the court to confirm the same, otherwise it won’t be in the course of law and justice to deem such oral partition was indeed effectuated and was not just a sham to deride a daughter of equal rights.

Conclusion

Apex court has overruled the judgement in and it has agreed on some points of law in danamma but has partially overruled it as according to dannama the provisions of section 6 have prospective effect. The court has cleared many lacunas in law such that notional partition is not actual partition, the provisions are retroactive in nature, whether father is dead or alive on and after 9 November 2005 is immaterial to the conferring of equal rights to the daughter as same as the son and that the rights of coparcenary are conferred on daughter by birth.

Supreme Court has also interpreted the legislation according to its objects which was to make good a fault in law as the unamended section 6 of Hindu succession act was discriminatory in nature. Accordingly, it has laid down precedence that will ensure that no bogus or sham partitions can lead to deprivation of an equal right of a daughter in Hindu joint family. This judgement successfully cleared all the confusion created by two contradicting judgements before it.

End-Notes:
  1. Dayabhaga laws of hindu succession are more prevalent in those regions.
  2. (2020) AIR 3717 (SC)
  3. (2015) 4 WBLR 793 (SC)
  4. (2018) 127 ALR 711
  5. 1908

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