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Case Analysis Of Vineeta Sharma v/s Rakesh Sharma

Section 6 of the Hindu Succession Act, 1956 was amended in the year 2005 by the Hindu Succession (Amendment) Act, 2005. Through this amendment, daughters were given the coparcenary rights and liabilities as of that of a son from birth.

In Prakash & Ors. v. Phulavati & Ors., it was held that Section 6 amended by the Hindu Succession (Amendment) Act, 2005 is not retrospective and is only applicable when both the father and his daughter were alive when the act came into force. As per the provision contained in the explanation to section 6(5) that the partition requirement is to be a registered one or by a decree of a court will affect a statutory notional partition on the opening of the succession. The application of section 6 was held to be prospective.

In Danamma @ Suman Surpur and Anr. v. Amar and Ors., the division bench held that section 6 gives full right to daughter coparcener and can claim partition in the property like any other coparcener. The court gave her this right even though her father died in 2001, and the act was amended in 2005. (Having prospective effect)

These two judgments were contrary to each other. This led the Supreme Court to decide the given case. Whether the 2005 Amendment Act has a prospective or retrospective effect?

Case Details:
Citation: (2020) 9 SCC 1
Court: The Supreme Court of India
Diary number as per SC record: 32601 of 2018
Decided on: 11th August 2020
Name of the Petitioner: Vineeta Sharma
Name of the Defendant: Rakesh Sharma and Ors.
Amicus Curiae: Shri R. Venkataramani and Shri V.V.S Rao
Bench: Justice Arun Mishra, Justice S. Abdul Nazeer, Justice M.R. Shah

Section 6 Of The Hindu Succession (Amendment) Act, 2005

6. Devolution of interest in coparcenary property.
  1. On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall:
    1. by birth become a coparcener in her own right in the same manner as the son;
    2. have the same rights in the coparcenary property as she would have had if she had been a son;
    3. be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
  2. 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 and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.
  3. Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 , his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and:
    1. the daughter is allotted the same share as is allotted to a son;
    2. the share of the pre- deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such pre- deceased daughter; and
    3. the share of the pre-deceased child of a pre- deceased son or of a pre- deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre- deceased child of the pre- deceased son or a predeceased daughter, as the case may be.
  4. After the commencement of the Hindu Succession (Amendment) Act, 2005 , no court shall recognise any right to proceed against a son, grandson or great- grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great- grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 , nothing contained in this sub- section shall affect:
    1. the right of any creditor to proceed against the son, grandson or great- grandson, as the case may be; or
    2. any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
  5. Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Arguments Of Amicus Curiae
Shri R. Venkataramani
In his opinion, there was no conflict between the two judgments. As both the judgments declare the provisions of section 6 as prospective. The daughter is been treated as a coparcener due to the new amendment act and not because of her being born before the amendment.

If the father or any other coparcener is dead before the amendment act of 2005, then their interest would have merged with the surviving coparcenary. If there is no coparcenary alive from whom the daughter can succeed. She can only succeed only in the interest of the living coparcenary on the date of the enforcement of the act. Past transactions can�t be re-opened after the amendment. Therefore, only those daughters would be considered as coparceners whose father is alive on the date of the amendment.

The scheme of section 6 is prospective, and no retrospective effect was intended to be given. It should be interpreted in the manner given as not to dissolve its importance.

Shri V.V.S. Rao
As per the amendment, the declaration is that the daughter by birth becomes a coparcener. Therefore, the questions of prospectivity or retrospectivity do not arise. The essential thing being that there should be a living daughter of a living coparcener to inherit the property under the amended act.

Analyzing sections 6(1)(b) and (c), there is the usage of "shall have the same rights" which is in the future perfect tense and indicates an action that has to be completed in the future. If the parliament wanted it to have a retrospective effect, then the construction of the sentence would

have been different. The parliament wanted the daughters to have the same coparcenary rights as the son but didn�t want to give the amendment a retrospective effect. This is given in section 6(1)(a) as it deals with the inclusion of daughter," on and from the commencement of amendment Act 2005, w.e.f. 9.9.2005". Section 6(1) controlling clause (a), clause (b), and clause (c). Therefore, the daughter is declared as a coparcener from 9.9.2005 and would have the rights in the property as a coparcener from 9.9.2005.

Section 6(5), as given in the Bill, proposes that nothing contained in section 6 should apply to a partition, which was affected or has taken place before the commencement of the Act.

Articles And Sections Referred
  • Article 14 of the Indian Constitution - Equality before law
  • Article 15 of the Indian Constitution - Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
  • Article 254 of the Indian Constitution - Inconsistency between laws made by Parliament and laws made by the Legislatures of States
  • Article 136 of the Limitation Act, 1963 - For the execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court.
  • Article 137 of the Limitation Act, 1963 - Any other application for which no period of limitation is provided elsewhere in this Division.
  • Section 6 of the Hindu Succession (Amendment) Act, 2005 - Devolution of interest in coparcenary property
  • Section 3(2) of the Hindu Succession Act, 1956 - Words importing the masculine gender shall not be taken to include females.
  • Section 235 of the Hindu Succession Act, 1956 - Citation before grant of administration to legatee other than universal or residuary.
  • Section 2(2) of the Code of Civil Procedure, 1908 - Decree

Notional Partition
The fiction of notional partition is meant to ascertain the undivided interest of a deceased coparcener. Therefore, it has to be done immediately before the death of the person and it would devolve upon his heirs.

Its purpose was not to bring about the actual partition. It had no effect on the severance of interest of other surviving coparceners or family members who are entitled to a portion following actual partition. Thus, legal fiction exists only to fulfill a certain purpose.

Partition Suit
Sections 6(1) and 6(5) of the Act include a proviso that saves any partition established prior to December 20, 2004. The explanatory language to section 6(5), on the other hand, recognizes only divisions made by the execution of a partition instrument duly registered under the Registration Act or through a Court ruling.

Question: when is a partition complete or affected?
The 'partition� as mentioned in section 6 is a complete partition. When a partition suit is filed in court, first a preliminary decree or decrees are passed and then the final decree is passed specifying the shares of the members.

The partition suit is determined in parts as the procedure progresses, so a full and complete partition occurs when the court issues a final decree. If a party to the partition suit dies during the proceeding, his or her share is allocated to the surviving parties in the final decree. Even if the matter is still pending in court and a new law is passed, any party who benefits from the change can petition the court to take notice of it.

Court�s View
The court held that section 6 of The Hindu Succession (Amendment) Act, 2005 confers the status of a coparcener on a daughter in the same manner as the son with all the same liabilities and rights. Irrelevant of her being born before or after the amendment. The daughter can claim her right at any time and since she has the right by birth, as her father being alive on 9.9.2005 is not important.

The date of the father's death was irrelevant because survivorship was just a means of succession, not a method of establishing coparcenary rights. As a result, the bench concluded that the Court made an error in its ruling in Phulavati because it did not analyse how a coparcenary is formed in that case.

A "statutory fiction" (partition) created by Section 6 does not mean actual partition. Such partition was made in the present case just to ascertain the shares after the death of the father. In cases where a preliminary decree has been passed and the case is still pending for a final decree or through appeal, the daughters are to be given share in coparcenary equal to that of a son.

Under Section 6(5) of the Act, A plea of oral partition cannot be accepted as a recognized mode of partition effected by a partition deed duly registered under the provisions of the Registration Act, 1908 or by a court decree. Exception: when public papers support an oral partition petition.

Cases Overruled
  1. Prakash v. Phulavati
  2. Mangammal v. T.B. Raju
The opinion of Danamma @ Suman Surpur and Anr. v. Amar and Ors., being partly overruled. (To the extent it was contrary to this judgment).

In my opinion, it was a correct decision to give a retrospective effect to the Act and to give the daughter the right to claim the share in the partition. As the Act declares that daughters are also co-parceners from birth and share the same powers and liabilities as a son. Therefore, when claiming a share in the property, it should not matter whether the father was alive or not when the Act came into force.

As we are progressing toward a better and equal future for all, daughters should be on an equal footing with the son.

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