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Coparcenary Property-Rights Of Daughters

Conflict of Judgments
There was a conflict of opinion in two Division Bench Judgments delivered by Supreme Court of India in. Prakash v. Phulavati, (2016) 2 SCC 36 and Danamma @ Suman Surpur v. Amar, (2018) 3 SCC 343 with regard to interpretation of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act of 2005.The matter was referred to Larger Bench.

The conflict was resolved by larger Bench of Supreme Court of India in Vineeta Sharma v. Rakesh Sharma (SC), 2020(9) SCC 1, wherein, it was held:
  1. The provisions contained in substituted section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
     
  2. 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 20th day of December, 2004.
     
  3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
     
  4. The statutory fiction of partition created by proviso to section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary.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 Act of 1956 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.
     
  5. In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognized 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 affected 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 out rightly.

Accordingly, the Supreme Court of India overruled the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors and The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar was partly overruled to the extent it is contrary to the decision.

Conclusion:
Thus to some extent the discrimination amongst the male and female have been removed, but not completely. The law of inheritance in respect of all the real & personal properties should be so simplified that every family becomes Happy.

Written By: Rajinder Goyal Advocate - Former Addl. Advocate General, Punjab
Punjab & Haryana High Court
Office: S.C.O No.19(2ndFloor),Sector10-D,Chandigarh
Email:[email protected], Ph No: +91 9814033663

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