Hindu Women and Property Rights: Historical Context

For centuries, the male lineage has determined who owns the land and who has authority over the family's assets, where and how to use them. In circumstances like this, when the women have little control over their resources, they are in a more financially disadvantaged position than men as it comes in relation to acquiring any land or property. As a result, Hindu women have long faced economic discrimination as daughters, mothers, and wives within families. For the majority of women, owning any kind of immovable property or even a fragment of land, and controlling any kind of economic asset, was a dream far from fulfillment in the past.

Gender Inequality and Legal Reforms

The distinction between daughters and sons has been an issue predominant in Indian society for a long time. The Indian society has come a long way in bringing justice to daughters. The Section 6 amendment was one such step to uplift women's status in society. However, this amendment created considerable confusion. Various judgments were passed in relation to this matter, but most contradicted one another.

The paper discusses how Hindu law evolved and for whom it applies, focusing on the landmark judgment of the Vineeta Sharma case, which resolved much of the prior confusion.

What Is Hindu Law

Hindu law is deemed to be one of the most creative and oldest legislations in the existence of mankind. It dates back approximately 6000 years and was founded by people in society with the motive that all of them will comply with it to achieve salvation, not necessarily to eradicate wrongdoings or crime.

It was initially instituted with the rationale of satisfying the needs and maintaining the well-being of society. It alludes to legal theory, jurisprudence, and rational thought found in Indian texts of the medieval era. The Hindus consider law as dharma, which literally means duty. Dharma includes sociological, legal, and spiritual duties.

Who Is Considered a Hindu

A person is perceived as Hindu if they are Hindu by religion in any form or a Buddhist, Jaina, or Sikh by religion, or born to Hindu parents. Anyone who is not a Muslim, Parsi, Christian, or Jew is governed under Hindu law.

In the case of Shastri vs Muldas[1], the Supreme Court expressly defined the term Hindu.

Sources of Hindu Law

The sources of Hindu law have a twofold classification:

Ancient Sources	Modern Sources
Shruti, Smriti, Digests and Commentaries, Customs and Usages	Equity, Justice and Good Conscience, Precedent, and Legislation

The modern sources of law are of two types: codified and uncodified. Every Hindu is governed by the codified law. The uncodified Hindu Law includes the various schools of Hindu law.

Enactments Applying Hindu Law in India

• Hindu Marriage Act, 1955
• Hindu Succession Act, 1956
• Hindu Minority and Guardianship Act, 1956
• Hindu Adoptions and Maintenance Act, 1956
• Hindu Women's Right to Property Act, 1937

Schools of Hindu Law

Hindu law schools have diverse viewpoints on the rules and principles of Hindu Law. The schools of law form the uncodified law, yet they influence the minds of legislators and lawmakers. Their emergence was a result of variations in opinions during the development of the Smritis. These rely on commentaries and digests of Smritis, thereby widening the scope of Hindu Law.

In Rutcheputty v. Rajendra[2], it was noted that the origin of different schools of Hindu Law is due to local customs prevailing in various provinces. Commentators interpreting the Smritis often incorporated local customs and usages, thus shaping legal principles differently across regions.

In Collector of Madras v. Mootoo Rantalinga[3], it was held that the remoter sources of Hindu Law (Smritis) are common to all the different schools. The development of these schools resulted from adapting the Smritis to local conditions.

Types of Hindu Law Schools

1. Mitakshara
2. Dayabhaga

Mitakshara School

This school is based on the Smriti written by Yajnavalkya and prevails throughout India except in West Bengal and Assam. It is also known as Inheritance by Birth. Under this school, the son gets rights to the father's property as soon as he is born. Women or wives do not get any share in the ancestral estate or rights under this school, although mothers can claim a share through their sons.

Sub-Schools of Mitakshara

• Benaras Hindu Law School
• Mithila Law School
• Maharashtra Law School
• Punjab Law School
• Dravida or Madras Law School

Dayabhaga School

This school is founded on digests of Smritis that discuss partition, inheritance, and joint family life. It is prevalent in Assam and West Bengal and is regarded as more liberal. The principle of spiritual learning underlies this school. It was developed to correct the shortcomings of prior inheritance theories and include cognates not recognized under the Mitakshara school.

Under the Dayabhaga school, sons acquire rights to ancestral property only after the father's death. It provides women with rights to Stridhan even without the husband's consent, and widows receive a share of their husband's property. Important commentaries include Dayatatya, Dayakram-Sangrah, Virmitrodaya, and Dattaka Chandrika.

Differences Between Mitakshara and Dayabhaga Schools

Aspect	Mitakshara School	Dayabhaga School
Membership in Joint Family	Only male members form part of the Joint Hindu Family	Both male and female members are included
Right to Property	Right arises by birth	Right arises after the father's death
Property Division	Property is held jointly, not physically divided	Property is physically separated
Women's Rights	Females are not given rights	Females are given some rights, including to Stridhan
Individuality	No individuality recognized	Right of individuality is recognized
Approach	Conservative	Liberal

What Is a Joint Hindu Family

It is a paramount concept of Hindu law regulated by the Hindu Succession Act (HSA) 1956. It constitutes all persons who are lineally descended from a common ancestor and includes unmarried daughters. A daughter ceases to be part of her father's family upon marriage and thus becomes a part of her husband's family. A joint undivided family is the normal condition of Hindu society.

It is an inevitable concept of Hindu law and a perpetual process. Even if the Joint Hindu Family (JHF) ends through partition, a new one is naturally created. It is also presumed that every Hindu family is a Joint Hindu Family.

Attorney General of Ceylon v. Arunachalam Chettiar [5]

It was held that as long as a male member can be added by the female members, the family does not come to an end. It includes a common ancestor and all of his male lineal descendants up to any generation, as well as the common ancestor's and descendants' wives and daughters. A common ancestor is necessary for forming a JHF, though its survival is not dependent on him. The common ancestor is acknowledged as the Karta or head of the family. A person becomes part of the JHF through birth, which makes even minors members of the family.

Rukhmbai v. Lala Laxmi Narayan [6] and Rajagopal v. Padmini [7]

A Joint Hindu Family is one that conducts its affairs of food, worship, and estate jointly. It continues to be a JHF even if the members do not live together but share joint real estate.

Chhotelal & Others v. Jhandey Lal [8]

It was observed that a Joint Hindu Family is a unit represented by the Karta and does not have a separate legal entity or juristic personality. However, for tax assessment purposes, it is treated as a "person" under the Income Tax Act.

Composition of a Joint Hindu Family

It comprises male members with their mothers, wives, widows, and unmarried daughters. Daughters remain part of their parents' JHF until marriage, after which they join their husband's JHF. This was supported in the case of Surjit Lal Chhabda v. CIT [10].

Illegitimate Son in JHF

In Gur Narain Das v. Gur Tahal Das [11], it was held that an illegitimate son also forms a part of the Joint Hindu Family.

What Is Coparcenary

It is a concept related to Hindu law's succession, concerning ancestral property passed down for at least four generations. It is a smaller unit of the Joint Hindu Family.

CIT v. Gomedalli Lakshminarayan [12]

It was held that even if a coparcenary does not exist in a family, the family continues as a Hindu Undivided Family.

Formation of a Coparcenary

It is formed by four generations of male descendants: the last holder, his son, his grandson, and his great-grandson. There is no limitation on the number of male members in one generation, as long as the relation is through blood or valid adoption.

No person can become a coparcener through agreement or marriage. This was affirmed in Sudarshan v. Narasimhulu [13]. Females were not allowed to be coparceners until the 2005 amendment of the Hindu Succession Act.

Continuation of Coparcenary

A common ancestor is necessary to create a coparcenary, but not for its continuation. It continues as new members are born, even if older ones die. A coparcenary requires at least two members to exist.

End of Coparcenary

It can end through partition or when no surviving coparceners remain. If one coparcener remains, the property becomes his separate property.

Rights and Duties of Coparceners

The property is jointly owned and enjoyed. Income is shared among all, and any denial of rights can be challenged in court. An insane son is part of the coparcenary but cannot demand partition.

Rohit Chauhan v. Surinder Singh & Ors [14]

It was held that if ancestral property is partitioned and retained by one person, it becomes his separate property. However, if a son is born later, he acquires an interest in it, making it coparcenary property again.

Commissioner of Gift-tax v. N.S. Getty Chettiar [15]

Coparceners cannot sell any share of joint family property unless partition has occurred.

Rule of Survivorship

In coparcenary property, when a coparcener dies, his share passes to surviving coparceners. The fluctuating number of members due to births and deaths makes precise share determination difficult.

Moro Vishwanath v. Ganesh Vithal [16]

The court observed that a partition can be demanded only by someone within four degrees of relation to the last owner.

Difference Between Joint Hindu Family and Coparcenary

Aspect	Joint Hindu Family	Coparcenary
Scope	Wider concept including all descendants, wives, and unmarried daughters	Smaller unit including up to four generations of male descendants
Generations	No limitation on generations	Only four generations
Female Members	Females and illegitimate sons are part of JHF	Females included only after 2005 amendment
Property Requirement	Not necessary	Essential
Law Governing	Law of Succession	Rule of Survivorship
Rights and Duties	Limited	Broader and defined
Relationship	Every JHF is not a coparcenary	Every coparcenary is a JHF

What Is Succession

Succession refers to the transfer of rights, duties, and resources to the succeeding kin after a person's death. The heir inherits all belongings of the deceased. The estate would remain ownerless if not transferred to heirs. Succession is governed by succession law, which lays down principles for distributing the decedent's assets.

Types of Succession

1. Testamentary Succession
2. Intestate Succession

Testamentary Succession

In this type, the deceased leaves a valid will specifying how the estate should be divided. The will must meet all legal requirements to be enforceable.

Intestate Succession

In this type, a person dies without leaving a will. The estate is divided according to personal succession laws applicable to the deceased's religion. For Hindus, it is governed by the Hindu Succession Act, 1956, while the Indian Succession Act, 1925 governs testamentary succession.

The Hindu Succession Act 1956

It concerns with the subjects in relation to inheritance and succession. The Act incorporates the full length of facets of Hindu Succession and its scope. It was authorised with the objective of forming an orderly framework of succession and making the gender discrimination between the daughter and son to an end.

Applicability of the Act

Its application is confined for Hindus and also to its subgroups comprising of Jains, Sikhs, Buddhists, The Arya Samaj, Lingayat, Brahmo, Virashiya, Prathana Samaj, but it isn't applied on the Muslims, Christians, Jews and Parsis. The applicability doesn't depend upon legitimacy of child. The Act doesn't apply to property which is covered under the Indian Succession Act through the Special Marriage Act.

Definitions and Scope

The Act provides with various definitions of terms in relation to the various people related through blood ties like cognates, agnates, heir, related and intestate. The Act caters with rules on how the succession of men and women both should take place; for both, there are different rules.

Rules for Male Succession

The Act lays down four categories of heirs in case of males as laid down in Section 8 of the Act: Class I, Class II, Class III (Agnates) and Class IV (Cognates). The whole of people in Class I heirs will inherit the estate concurrently. In case no one is present in Class I, then it will pass onto Class II heirs and go down to Class III and Class IV in order.

In the case of Additional Commissioner of I.T. v. P.L. Karuppan Chettiar [17], the Court held that upon the passing away of a Hindu male, his property will devolve, first and foremost, on all the family members in Class I of the Schedule. The Class I heirs will inherit simultaneously, leading to the exclusion of Class II heirs.

In the case of Bhagat Prasad Bhagat versus Shankar Bhagat [18], it was held that Section 8 shall be considered in relation to subjects of inheritance instead of Section 6.

Rules for Female Succession

Women were accorded equal status with the coming of this Act, but with the amendment of 2005, it was decided that daughters would also get the same share as the sons. The property in case of a female Hindu intestate dying will devolve in the following order:

Order of Succession (Female Hindu Intestate)
1. Sons and daughters, and the husband
2. Heirs of the husband
3. Mother and father
4. Heirs of the father
5. Heirs of the mother

Exceptions to the Act

There have been few exceptions to the Act. It isn't applicable in the following situations:

• If any person commits murder, they will be disqualified from receiving any form of inheritance from the victim.
• If a relative converts from Hinduism, he or she is still eligible for inheritance, but their descendants are disqualified from receiving inheritance from their Hindu relatives.
• Full blood is always preferred to half blood.
• Widows remarrying are not entitled to inherit as widow.

In Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo & Ors [19], the plaintiff, Lalu Pratap, filed a case requesting that the deceased's inheritance be controlled by the rule of lineal primogeniture, which states that the deceased's asset held jointly is distributed among the male members of the family though it have female members.

It was asserted by the plaintiff that the rule of survivorship or lineal primogeniture applied, not the Succession Act, because the Act was enacted following the deceased's death. It was stated that the rule of survivorship or inheritance did not apply as the Act was already in force by the court. It was also added that the old Act is retrospective in nature.

 

In 2005, amendments were made in order to curtail the provisions which were gender discriminatory. It was contemplated as a revolutionary step in the field of women's rights in Indian legislation as it provided for equal rights among males and females.

Sections Amended

The Sections 4, 6, 23, 24, and 30 of the Act were amended.

• Section 4(2) was omitted.
• Section 6 was amended.
• Section 23 was repealed as it discriminated against females seeking partition of property.
• Section 24, which denied rights of widows to inherit her husband's property upon remarriage, was repealed.
• In Section 30, the words "disposed by him" were substituted with "disposed by him or by her" to ensure gender neutrality.

Section 6: Coparcenary Rights

Before amendment, Section 6 provided for intestate succession of the property, stating that the property be handed to the coparceners who are male or have an interest in the coparcenary property, limited only till three degrees of generation from the last holder. This interest was transferred through survivorship. The 1956 Act did not include females in the share of coparcenary property.

It was amended to remove gender biasness. The amendment provided that both sons and daughters shall have equal rights in the coparcenary property, and the coparcenary liability shall be equally applicable upon the sons as well as the daughters, thus making daughters of the three degrees a part of the coparcenary.

Retrospective, Prospective, or Retroactive?

When the Section 6 amendment was introduced, it was unclear whether it was retrospective, prospective, or retroactive in nature. A retrospective law considers past events and operates backward, taking away or impairing 'vested rights' acquired under existing laws.

A prospective law considers future happenings and operates from the date of its enactment conferring new rights, whereas a retroactive law applies from a past date but operates in future based upon a status or character which arose earlier.

Case Law: Yogendra & Ors v. Leelamma N. & Ors [20]

Yogendra's first marriage was a legal marriage as per the Hindu Marriage Act, 1955's Section 5. As per the Act, a second marriage can only happen in case divorce happens with the spouse which is first or if the spouse is dead. Bigamy and polygamy are prohibited under the Act.

With his first wife, Yogendra had three daughters: Leelamma, Kamalamma, and Parvathamma. He married another woman even though the first wife was still alive, thus making the second marriage illegal. After that, he had a daughter named Dinesh with his second wife.

The issue which arose was whether Dinesh, the daughter with the second wife, was entitled to Yogendra's property as a coparcener as per Section 6 of the Hindu Succession Act or Section 8 of the Amended Act. It was held by the court that the second marriage is illegal and void; thus, Dinesh is an illegitimate child and will not be regarded as a coparcener. However, she can inherit as an illegitimate child under the Amended Act.

Notional Partition

It is a concept when one of the coparceners die then the undivided interest of the coparcenary property shall be distributed equally between his heirs. The coparceners do not have a predetermined share; it keeps on fluctuating because of birth and death of coparceners. The segment of a dead person could be ascertained by using the notional partition process. It could be used by assuming that before his death what would be his share, and that would devolve upon his successors.

It's more of a fictional concept; it was brought in for a purpose which is precise in nature. But under this, the real partition doesn't take place. This concept does not affect the interests of any other surviving members as it is just being legal fiction in nature and no actual partition takes place and cannot be extended further.

This concept was given a statutory provision through Section 6 of the Act. Before the 2005 amendment, only the male heirs would get the share. The female heirs, including daughters and wives, weren't a part of the coparceners as the wives were not considered a direct bloodline of the departed, and daughters were to move to their husband's house, so both weren't allowed to be a part of the coparcenary.

Practical Effect: Partitions and Timing

The Supreme Court emphasized that the statutory fiction of notional partition (created by the proviso to original Section 6) does not automatically amount to an actual partition that destroys the coparcenary. Consequently, partitions completed before 20-12-2004 remain protected; partitions effected on or after 20-12-2004 (the date the amendment bill was placed before Parliament) must be genuine and, where claimed, courts will require proof (registration, court decree, or cogent proof of separate possession/entries). Oral partitions after that date are prima facie insufficient unless robust evidence is produced. This guidance helps limit fraudulent attempts to defeat daughters' rights.

With the amendment, both males and females now have equal shares in coparcenary property, and daughters have been given an equal share as a step toward reducing gender bias and providing better opportunities for women in Indian society.

Female Heirs Entitled to Share

Female heirs include:

• The daughters
• The daughter's-daughter's sons
• The daughter's-daughter's daughters
• The daughter's son's daughters
• The son's daughter's sons (the predeceased great-granddaughter applies only if heir who is male or the grand is predeceased)

The males and females both have equal liability.

Illustrative Example

The concept could be explained with an example:

Mr. X had a family property and had only one son who was Mr. Y, who died intestate. Mr. Y had a daughter and a son. Now when Mr. X died, his property would be shared between both the children of Mr. Y � the daughter and the son. This concept was implemented after the 2005 amendment of the Act.

Update � Supreme Court Ruling on Section 6 (Vineeta Sharma, 2020)

Supreme Court Clarification (August 11, 2020): In Vineeta Sharma v. Rakesh Sharma & Ors., the Supreme Court held that the substituted Section 6 of the Hindu Succession Act, 1956 confers coparcenary status on daughters by birth in the same manner as sons � irrespective of whether the father (or coparcener) was alive on the date the 2005 Amendment came into force. The Court, therefore, clarified the earlier conflicting two-judge decisions and held that the 2005 Amendment must be read so as to give daughters equal coparcenary rights, and that those rights operate retrospectively in the sense explained in the judgment.

Man Singh Vs. Ram Kala [21]

In Man Singh vs. Ram Kala [21], a male Hindu died who left behind wife, son, and daughter. The question arose about the devolution of interest in the coparcenary property. It was held that until the coparcenary is disturbed by actual partition, the deceased's definite share cannot be claimed. It was justified that while doing notional partition to ascertain the share of the deceased would in no manner disrupt the coparcenary.

Section 6 Landmark Judgements

Prakash & Ors. Vs. Phulavati & Ors. [22]

This is one of the landmark cases in relation to the amendment of Section 6.

The father of the respondent died on February 18, 1988. The father of the respondent was possessing a lot of assets that he had acquired and inherited. In 1992, the respondent filed a lawsuit in the Trial Court, requesting partition of her father's assets.

On the basis of notional division, the Trial Court partially authorised the suit to the extent of 1/28th share in certain properties, no stake in others, and 1/7th share in the remaining properties. In 1992, the current appellants disputed this, contending that the respondent could only obtain her father's self-acquired holdings, not the ancestral property he inherited.

During the course of the trial, both parties revised and amended their petitions in response to changing circumstances and changing percentages of ownership in the properties. The Court took into account all of the requests, even those which were indirectly in relation to the case, which caused a delay in the declaration of the judgment.

Although the exact date of the decision by the Trial Court is unestablished, the case was filed in 1992, and an appeal to the High Court was filed in 2007, nearly immediately following the Trial Court's decision. It helps approximate the time it took for the Trial Court verdict to be delivered.

When the Amendment Act took effect on September 9, 2005, the respondent had the right to claim her part of the property under the Amendment Act, in accordance with Section 6(1) of the Act. The suit was partially granted by the Trial Court. In accordance with the Amendment Act of 2005, she revised her plaint to claim her portion and went to the High Court to appeal the Trial Court's decision.

The argument in the Trial Court was that the respondent can't claim the ancestral property as she was an illegitimate coparcener in the property. In the High Court, it was argued that because the respondent's father died before the enactment of the Amendment Act, it could not be applied to the respondent's case.

The argument before the Supreme Court presented was that the Amendment Act was enacted after the death of the respondent's father, causing him to lose his coparcener status. Thus, she was unable to be claimed as a coparcener. When she is not a coparcener in a conventional sense, the statute, which specifically excludes any retrospective application, would apply.

The Issues That the Court Had to Decide Were:

1. Is the Amendment still relevant if the Respondent's father deceased after the act was passed?
2. Is there a possibility for applying the Amendment Act for a partition that was carried out without a court order?
3. Is it possible to apply the Amendment Act retroactively?

High Court's Decision

The HC had explained that because the division isn't effected by a partition deed or a court order of any kind, it was considered to be a notional partition, so Section 6(5) of the Amendment Act could not be applied in this case. The HC had allowed the appeal of the respondent in accordance with the case of G. Sekhar versus Geeta and others[23].

Supreme Court's Analysis

The Supreme Court distinguishes between the High Court's usage of the Act in this case and the Act's application which is retrospective in general. The Supreme Court overturned the High Court's decision. The SC said that shares were already granted under the HSA, 1956 and can't be taken aback through a modification, namely the HSAA 2005.

The Respondent's argument that it retrospectively applies since it was a social law aimed at correcting disparities between men and women was declined by the Court. The SC said that social legislation cannot be applied retroactively unless expressly indicated in the statute.

The HSSA 2005 will only apply to live daughters and living sons, as per the law, irrespective of when such daughters were born, and that:

All partitions in which the coparcener has died before 9-9-2005, the living daughter has no entitlement over her share of the property.

First Issue Consideration by the Supreme Court

In regards to the first issue the Supreme Court's decision in case of G. Sekar v. Geetha And Ors[24] was taken into consideration. The SC had explained that any alteration or development to the legislation will apply to cases that were pending at timing the legislative was being amended.

The court also made a distinction between prospective and retrospective applicability. This decision was based on the decision in the case S.L. Srinivasa Jute Twine Mills (P) Ltd v. Union Of India[25], that is not in considered in instance of the factual situation, but rather for the decision itself, that was decided that existing parties' rights would not have been taken away during the commencement of an act.

Principles on Retrospective Application

After taking into consideration the parties' arguments, the Apex Court cited case law of Shyam Sunder v. Ram Kumar[26] in which it was found that unless a statute clearly indicates that it must be applied retrospectively, it is implicit that the act's aim is to be applied prospectively.

The Act precisely provided with partitions completed before December 20, 2004 are not subject to the Act's provisions. The court also mentioned the act's definition of "partition" and agreed with the High Court's view of partition in this case.

The SC provided that the Act applies to the living daughters of living coparceners as of September 9, 2005, regardless of when those daughters were born. The Apex Court overruled the High Court's decision for the reasons stated above. The court dismissed the Respondent's argument that the Amendment Act must be applied retrospectively because it is progressive legislation, stating that even social legislation requires express mention of retrospective application.

Danamma @ Suman Surpur vs Amar [27]

Facts of the Case

The Danamma @ Suman Surpur vs Amar was also a landmark case in regards to amendment of section 6. Shri Gurulingappa Savadi's two daughters who are the appellants of situation. He also had a wife, Sumitra, and two sons, Arun Kumar and Vijay. On July 1, 2002, Amar, S/o Arun Kumar who was Respondent No. 1 filed a suit for property partition, claiming a 1/15th portion of property.

Arguments and Findings

• The plaint provided with sons and widows were in joint possession of all properties as coparceners, and that some of the another properties mentioned in the plaint were acquired in the name of Shri Gurulingappa Savadi.
• It was asserted by the Appellants were not the coparceners because they were born before the HSA was enacted.
• The Appellants claimed that they were also coparceners because Gurulingappa Savadi died after the Act of 1950 took effect.

The Lower Court had disapproved for holding the Appellants as coparceners as their birth was way before the Act's enactment. In 2008, the High Court overturned the Trial Court's decision. In an order dated January 25, 2012, the High Court upheld its decision.

Issue Before the Supreme Court

The issue arisen in case was the Appellants (daughters) were entitled to an equal portion of the property because their birth was way before the HSA 1956, or not. The Appellant's motion was contradicted by the Lower Court and the High Court, who ruled that she had no entitlement in the stake in the property because she was born before the HSA, 1956, and the original coparcener died when HSAA 2005 was not enacted.

Supreme Court's Decision

A Special Leave Petition contesting the order under Article 136 of the Constitution was received by the SC.

The Supreme Court overturned the decisions of the Lower court and the HC. It added that the coparcener who was original died in 2001, the partition suit was filed in 2002, lower Court judgement was issued in 2007. During the course of the case was passed the HSAA 2005, which gave the daughters as a coparcener's position and gave her the same rights and obligations same as the son.

Thus inferring, the SC had precisely made addition that amends applies to the current case as the partition had took effect after the trial court's ruling in 2007. The Supreme Court took a different stance in this historic decision than it did in Prakash v. Phulavati[28].

Vineeta Sharma v. Rakesh Sharma & Ors. � Quick Facts

• Court: Supreme Court of India (Three-Judge Bench)
• Date: 11 August 2020
• Holding (Summary): Daughters are coparceners by birth under amended Section 6 and have the same rights and liabilities as sons; the 2005 Amendment must be applied so as to give daughters full coparcenary status, and earlier inconsistent two-judge rulings were disapproved.

Resolution of Conflicting Case Law

Before the three-judge reference in Vineeta Sharma, two earlier Bench decisions � Prakash v. Phulavati and Danamma @ Suman Surpur v. Amar � produced inconsistent outcomes on the effect of the 2005 Amendment. The Supreme Court in Vineeta Sharma resolved that conflict: it overruled the narrower interpretation that made the daughter's right depend on the father's being alive on 9-9-2005 and confirmed that daughters receive coparcenary rights by birth as per the amended Section 6.

The daughters objected to the litigations and was claimed by sons that the deceased father's daughters are not having entitlement of share of the inheritance because he died before the modified Act took effect. The girls' claim was dismissed by both the lower court and High Court because the birth was way before the Hindu Succession Act of 1956 went into effect.

Disputes arose due to courts' differing interpretations of Section 6. Danamma's case had failed to outstreched to the heart of the matter and resulted in ruling that contradicted the Phulwati verdict. The Split's date isn't important in the Danamma case because the question is whether the entitlement of daughter is to a half if her father dies before September 9,2005.

In Phulwati's the SC had set a cut-off date of 9th September 2005 for the living coparcener (daughter) to have entitlement on her half of a property provided the dad is alive at that time. If the father dies before 9-9-2005, the living coparcener (daughter) will have to forego her portion. The conflicting legal judgments in the two cases above generated unneeded ambiguity in the interpretation of Section 6 under the HSAA 2005.

Both the judgements in the Prakash & Ors. V. Phulavati & Ors[29] and the Danamma Suman Surpur & Anr. v. Amar & Others[30] cases are contentious and contradictory, according to legal authorities. The daughters in the case of Danamma were not entitled to any share in the property under the law interpreted in the case of Phulavati, but the Supreme Court took a different position, implying that the commencement date is no longer applicable to birth or conception, and instead relied on the principle of preliminary and final decree laid down in a wholly different case, namely Ganduri Koteshwaramma & Co.

As a result of Ganduri Koteshwaramma & Anr. v. Chakri Yanadi & Anr[31], the entire ruling favoured the girls, and they were given entitlement to the father's portion. In this case the same court found that a preliminary order expressed as by the court in the partition dispute hasn't have any affects on the rights bestowed on daughters by the amendment.

In the case of partition suits, the final decree is the only thing that makes them final. Thus the court have the power of making any appropriate changes to the preliminary ruling in order to restoring the rights under law. As a result, an assumption can be made that a partition suit was filed prior to 2005, but that it was still waiting before the Court for a final ruling. The daughter's entitlement on property is likewise generated in any case by virtue of he. Because the verdicts caused confusion in all of the lower courts, it is now difficult to interpret similar instances.

However, rather than relying on the ruling in the Danamma Suman Surpur & Anr. v. Amar & others[32], the dicta in the Prakash & Ors. v. Phulavati & Ors[33] case be utilised. The rationale for this is that the judgement in the last mentioned case makes little sense in terms of practical application because it only mentions conception, birth, and death. But in the first mentioned-case, the legislators' interpretation of the statute was pure when the Act's formulation was being done, and they did not anticipate any passage of the decree principle in the law.

Interpretations by the Bombay High Court

The Bombay High Court in Ms. Vaishali Satish Ganorkar & Anr. v. Mr. Satish Keshaorao Ganorkar & Ors[34], asserted that statute application must be retroactively unless it is specifically been otherwise stated, as the terms "on and from" in Section 6(1) after amendment demonstrate its prospective nature.

They further stated that daughters born on or after September 9, 2005 will only be deemed coparceners, while those born before that date will only devolve an interest in the coparcener properties following his death through ways succeeding his interest.

However, in the case of Shri Badrinarayan Shankar Bhandari & Ors. v. Ompraskash Shankar[35], a Full Judge bench of the same court disagreed, stating that there are two prerequisite requirements for the implication of revised section 6(1) of the act:

• The daughters requesting benefits as per Section 6 must be living at the time the amended act takes effect.
• On amendment's date of enactment, the property in question must be available as coparcenary property.

It had been ruled out that a change is retroactive, meaning it will apply to all girls born before and after June 17, 1956, but before September 9, 1956. It is, however, subject to one condition that the daughter was alive at the time the 2005 Amendment was enacted. When the Principal Act was enacted, it applied to all Hindus born before or after June 17, 1956, but only if they were alive at the time of the enactment.

The word "on and from" was introduced by the Parliament to ensure that the already established rights in terms of coparcenary property would not be disrupted by a claimant claiming as an heir to a daughter who died before the amendment took effect. As a result, this change will apply to girls born before September 9, 2005.

Critical Analysis of Vineeta Sharma Vs. Rakesh Sharma [36]

It's a case revolving around the concept of a JHF and the daughters' coparcenary rights. HAS was enacted in 1956, and prior to that, Hindu succession was conducted according to ancient Mitakshara law in most parts of India, with the exception of West Bengal and Assam. The devolution of property after Hindu male had deceased was dealt from Section 6 of the Hindu Succession Act 1956, and the rule of survivorship was used for the same purpose.

Section 6 was amended to give daughters the same full coparcenary rights as the sons had. On the November 9th 2005, the amendment act was passed. Daughters were granted coparcenary rights by birth under section 6(1)(a). As a result, the question of whether a daughter born before 2005 will be granted coparcenary rights arose. Another question was whether daughter and the father both had to be alive on November 9, 2005 in order for the amended section to take effect.

These questions were answered in Prakash & Ors V. Phulvati and Ors[37], which ruled that the provisions take effect immediately, and that coparcenary rights will be granted to a living daughter of a living coparcener, which meant that father as well as the daughter both had were alive on November 9, 2005. Whereas in Danamma @ Suman Surpur & Anr. V. Amar & Ors.[38] the contrary was held.

A divisional bench made up of two judges dictated both of the previous decisions. So, in the case of Vineeta Sharma v. Rakesh Sharma, a three-judge constitutional bench was convened to resolve the issues and provide the correct interpretation of the amended Hindu Succession Act, 2005's section 6.

Seven other cases were investigated at the same time as this one, all of which dealt with the same area of law and were extremely relevant to the details of the current cases. The three-Judge Bench comprised of Arun Mishra, M. R. Shah and S. Abdul Nazeer, JJ. and it was authored by Arun Mishra.

India's Supreme Court handed down a landmark decision in this case on 11-8-2020, stating that the HSAA, 2005 will apply retroactively. An amendment was made to Section 6 under the act in 2005 to conform to the constitutional belief in gender equality. According to the amendment, the coparcener's daughter, like his son, has her own right at birth by becoming a coparcenar.

It resolved the concern if the Amendment of 2005 had deemed to give the daughter the same right as a son has on the coparcenary property regardless of living status of the father as and when the Amendment was being made. Ms. Vineeta Sharma is the Appellant who had filed a case against her two brothers; Mr. Rakesh Sharma & Satyendra Sharma, their mother , these were the three Respondents.

The father of appellant was Sh. Dev Dutt Sharma who had three sons, one daughter, and a wife. He had expired on December 11, 1999 and one of his three sons who was unmarried also expired on July 1, 2001. The Appellant claimed that as her father's daughter, she was entitled to a 14th share of his property. The Respondents' case was that after her marriage that she is not a part of the joint Hindu Family. The appeal was dismissed by the Hon'ble Delhi High Court because the 2005 amendments did not benefit the Appellant because his father died on December 11, 1999.

The Issues Raised Under the Case Were:

1. Should the father coparcener be alive as of November 9, 2005?
2. Can a daughter born before November 9, 2005 claim the rights and obligations in coparcenary same as a son?
3. Does the statutory fiction of partition created by the proviso to section 6 of the Hindu Succession Act, 1956, as originally enacted, result in actual partition or coparcenary disruption?
4. Can an oral partition plea made after December 20, 2004 be accepted as the legally recognised mode of partition?

Arguments on Behalf of the Union of India

On behalf of the Union of India, Shri Tushar Mehta presented arguments that were consistent as per the judgement which was actual. Genuine partitions made before December 20, 2004, which is the Rajya Sabha's announcement of the amendment bill, he argued, should be left alone because questioning them would jeopardise the legal position.

The Solicitor General agreed that it's not required by the father of coparcenar to be alive during the amendment act in order that the daughter to have coparcenary rights, because the death of the coparcener/father does not necessarily mean the end of coparcenary, which can continue with other coparceners alive.

Arguments by Amicus Curiae

Shri R. Venkataramani

Shri R. Venkataramani, as amicus curiae, argued that the provisions' nature is prospective. As per the previous judgments, and thus arising any kind of conflict between them. He added the only reason for a daughter being treated as equivalent as a son in terms of rights of coparcenary is due to the act which is amended, not because of her birth. Otherwise, there will be no coparcenary interest which would be left to be passed on to the daughter otherwise if the father is still alive or the coparcenar being alive.

He argued that treating a daughter as a coparcener before September 9, 2005 would create a great deal of uncertainty in the legal system. He claimed that the parliament's intention is to "scramble the unscrambled egg" and "resurrect the past," but that the parliament's true intention is forward-looking.

Shri V.V.S. Rao

Shri V.V.S. Rao, learned amicus curiae, argued that plain language and the future perfect tense will give the rights which were same, and that phrases like "on and from" in section 6(1), and in the addition to the words like "become," "have," and "be," indicate that the parliament intended to apply the amendment act's provisions prospectively rather than retrospectively.

He claimed that the daughter is only liable for pious obligations as of September 9, 2005, and not for any property acquired prior to that date. He contended that the father/coparcener be living as of September 9, 2005, because if the coparcenary is disrupted due to the actions of one or more parties, there will be no coparcenary property intact for the daughter to inherit.

Arguments on Behalf of the Respondent

On behalf of the respondent, Shri Sridhar Potraju argued that if a notional partition occurred, it can be acknowledged. He argued that a preliminary decree must be put into consideration as a final one because it indicates that the Hindu family's jointness has ended when the partition suit was filed.

He emphasised that because the provisions are not retroactive, liabilities can only be transferred to the daughter since the amendments have been made. He continued to say that all previous transactions must have protection from the amendment's effects because, after a statutory partition, the property becomes self-acquired and no longer a coparcenary property.

Arguments by Sh. Amit Pai and Shri Sameer Shrivastav

They argued that if both the coparcener as well as the daughter are living when the Amendment Act has taken effect, the purpose and objectives with which the act had been enacted�eliminating the discrepancy between sons and daughters�would come to an end. They claimed that coparcenary occurs as a result of birth, aside from adoption process. They also agreed that whether the property's partition is properly carried out, she must not seek partition of property that has already been divided.

Court Findings and Analysis

Establishing from precedent and various previous decisions, the court ascertained that Joint Hindu Family (JHF) property is an unburdened heritage. The right of partition is absolute in this type of property and is granted by virtue of birth. Separate property, on the other hand, is an obstructed heritage, where the right to ownership and partition is obstructed by the death of the separate property owner.

When a heritage right is obstructed, it is determined by the death of the original owner, not by birth. Based on these findings, the Supreme Court ruled that since the right to partition is created by birth of the daughter (unobstructed heritage), it makes no difference whether the coparcener's father was alive or dead at the time of the amendment. As a result, it overturned Phulvati vs Prakash, ruling that coparcenary rights pass from a living father to a living daughter, rather than from a living coparcener to a living daughter.

Retroactive Nature of the Amendment

The court ruled that the effects of section 6 are neither prospective nor retrospective, but rather retroactive in nature. This means that from and on November 9, 2005, the daughter will have the same rights of the coparcenary as her father, depending on a past event�her birth. The rights are retroactive because they arise from birth but apply upon the amendment.

Notional Partition

The court clarified that a notional partition does not imply that an actual partition has occurred. Because notional partition is a legal fiction, it should only be used to determine each coparcener's share of the joint Hindu family. The distribution and fixation of shares based on notional partition are not final, as coparceners are constantly added or removed due to birth or death.

The court also held that a claim by a daughter can be made to her portion of the joint family property even if the notional partition was completed before November 9, 2005, since such partition does not dissolve the coparcenary.

CPC and Preliminary Decrees

The court addressed the argument under Section 97 of the CPC that if no suit is filed contesting a preliminary decree within a finite time, it becomes final. The court ruled that this applies only to the parties involved in the suit, not third parties. Even after a preliminary decree, the quantification of shares may change as new members are born or die. Thus, a preliminary decree is not final.

Final Ruling and Guidelines

The Supreme Court ruled that even if a preliminary decree has been issued, the court must consider any legal changes before issuing the final decree. Thus, daughters have the right to claim their coparcenary rights even if a preliminary decree exists. The court clarified that any partition completed before December 20, 2004, will not be invalidated. However, partitions on or after this date must be genuine and registered or court-decreed.

Oral Partition Exception

While oral partitions are generally disallowed, genuine cases may be accepted if proven with credible evidence such as:

• Separate possession of family property
• Appropriation of income
• Entries in revenue records
• Other public documents

Overruled Cases

Case	Overruled Aspect
Prakash v. Phulavati	Father's living status irrelevant; daughter entitled by birth
Mangammal v. T.B. Raju & Ors	Same as above; daughter's right from birth upheld
Danamma @ Suman Surpur & Anr. v. Amar	Clarified crystallisation and partition scope

Gender Equality and Legal Significance

Gender cannot be used as a reason to deny inheritance rights. The Supreme Court's interpretation removes male primacy over Hindu ancestral property and upholds the constitutional spirit of equality. It is a landmark judgment empowering women financially and ensuring that property rights are governed by law, not by patriarchal will.

Conclusion

Hindu women's status was always subjected to male family members, which is one of the reasons why the Hindu Succession Act (HSA) was passed in 1956. Legislators did not see the need to grant daughters rights to the father's property, assuming that a daughter marrying into another family should not inherit from her father. The 2005 Amendment corrected this inequality, granting sons and daughters equal status in a Joint Hindu Family.

Though ambiguity remains regarding validly adopted daughters (as this term is not mentioned in the amendment), section 6 of the Act ensures that both sons and daughters have equal coparcenary rights.

The patriarchy that once dominated inheritance has been gradually dismantled. Women's rights now stand equal to men's under the law, and the 2005 Amendment marks a major step toward true gender equality.

Updated Conclusion (Post-Vineeta Sharma)

The combined effect of the 2005 Amendment and the Supreme Court's clarification in Vineeta Sharma has materially strengthened daughters' rights in Hindu coparcenary property. Daughters are now treated as coparceners by birth with the same rights and liabilities as sons. Practically, this reduces gender-based disinheritance in ancestral property and gives female heirs a firmer legal footing to claim their shares, subject to protection for bona fide partitions effected prior to December 20, 2004. The judgment is an important step towards the financial empowerment of Hindu women and aligns the succession framework with constitutional equality.

References:

• https://www.legalbites.in/hindu-joint-family-and-coparcenary
• http://sevasadancollege.com/elearning/pdf_file/1520053996hindu%20law%20Unit%201-5.pdf
• https://blog.ipleaders.in/sources-schools-hindu-law/
• https://blog.ipleaders.in/the-hindu-succession-act-1956/
• https://blog.ipleaders.in/concept-notional-partition/
• https://www.legalserviceindia.com/legal/article-4710-vineeta-sharma-v-rakesh-sharma-an-case-analysis.html
• https://blog.ipleaders.in/case-analysis-vineeta-sharma-v-rakesh-sharma-others-along-7-matters/

End-Notes:

1. Sastri Yagnapurushdasji vs Muldas Bhuradas Vaishya (1959) 61 BOMLR 1016
2. Rutcheputty v. Rajendra 1839,2 M.I.A, 132
3. Collector of Madras v. Mootoo Rantalinga 1(1968) 12 M.I.A 397
4. As per Sir Dinshaw Mulla
5. Attorney General of Ceylon v. Arunachalam Chettiar [1957] 3 WLR 293
6. Rukhmbai vs. Lala Laxmi Narayan 1960 SCR(2) 253
7. Rajagopal vs. Padmini 1995 SCC(2) 630
8. Chhotelal and others vs Jhandey Lal and another AIR 1972 All 424
9. Section 2(3) of the Income Tax Act
10. Surjit Lal Chhabda vs.CIT. 1976 AIR 109, 1976 SCR (2) 164
11. Gur Narain Das v. Gur tahal Das1952 AIR 225, 1952 SCR 869
12. CIT v. Gomedalli Lakshminarayan (1935) 37 BOMLR 692, 159 Ind Cas 424
13. Sudarshan v. Narasimhulu (1902) ILR 25 Mad 149
14. Rohit Chauhan Vs. Surinder Singh & Ors (2013) 9 SCC 419
15. Commissioner of Gift-tax v. N.S. Getty Chettiar 1971 AIR 2410, 1972 SCR (1) 736
16. Moro Vishvanath v. Ganesh Vithal (1873) 57 Bom. H.C. Reports 444
17. Additional Commissioner of I.T. v. P.L. Karuppan Chettiar AIR 1979 Mad 1, 1978 114 ITR 523 Mad
18. Bhagwat Prasad Bhagat @ Bhagwa vs Shankar Bhagat & Ors on 27 April, 2009
19. Bhaiya Ramanuj Pratap Deo vs Lalu Maheshanuj Pratap Deo & Ors. 1981 AIR 1937, 1982 SCR (1) 417
20. M.Yogendra & Ors vs Leelamma N. & Ors on 29 July, 2009
21. Man Singh Vs. Ram Kala AIR 2011 SC 1542
22. Prakash & ORS. Vs. Phulavati & Ors AIR 2011 KAR 78
23. G.Sekhar versus Geeta and others (2009) 78 AIC 138(SC)
24. G.Sekhar versus Geeta and others (2009) 78 AIC 138(SC)
25. S.L Srinivasa Jute Twine Mills (P) Ltd v. Union Of India, 2206 SCC ( L&S) 440
26. Shyam Sunder v. Ram Kumar, (2001) 8SCC24
27. Danamma @ Suman Surpur v. Amar, AIR 2018 SC 721.
28. Prakash & ORS. Vs. Phulavati & Ors AIR 2011 KAR 78
29. Prakash & ORS. Vs. Phulavati & Ors AIR 2011 KAR 78
30. Danamma @ Suman Surpur v. Amar, AIR 2018 SC 721.
31. Ganduri Koteshwaramma and another v. Chakiri Yanadi and another, 2011 (9) SCC 788
32. Danamma @ Suman Surpur v. Amar, AIR 2018 SC 721.
33. Prakash & ORS. Vs. Phulavati & Ors AIR 2011 KAR 78
34. Ms. Vaishali Satish Ganorkar & Anr. v. Mr. Satish Keshaorao Ganorkar & Ors, 2012(2) ALL MR 737
35. Shri Badrinarayan Shankar Bhandari & Ors. v. Ompraskash Shankar AIR 2014, BOM 151
36. Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1
37. Prakash & ORS. Vs. Phulavati & Ors AIR 2011 KAR 78
38. Danamma @ Suman Surpur v. Amar, AIR 2018 SC 721.
39. Prakash & ORS. Vs. Phulavati & Ors AIR 2011 KAR 78
40. Prakash & ORS. Vs. Phulavati & Ors AIR 2011 KAR 78
41. Mangammal @ Thulasi and Anr. vs. T.B.Raju and Ors. in Civil Appeal No.1933 of 2009 dated 19.04.2018.
42. Danamma @ Suman Surpur v. Amar, AIR 2018 SC 721.

Suggested Articles:

1. Can Women be Karta
2. Vineeta Sharma v. Rakesh Sharma; An Case Analysis
3. Coparcenary Rights of Major Unmarried Hindu Daughters
4. Coparcenary Rights of Hindu Daughters: Property and Inheritance under Hindu Succession Law