The Supreme Court in its landmark judgment on August 24, 2020, declared the equal position of woman as a coparcener in a Hindu Undivided Family. The father’s death does not affect the right of the daughter as a coparcener because the coparcenary right is a birth right.
By: Asif Choudhary, 2nd Year LLB Student, Delhi University.
Bench: Justice Arun Mishra, Justice S. Abdul Nazeer, Justice M.R. Shah
Facts of the case:
The facts of the case as, One Ms. Vineeta Sharma (Appellant) filed a case against her two brothers Mr. Rakesh Sharma & Satyendra Sharma, and her father Sh. Dev Dutt Sharma (respondent). He expired on December 11, 1999. One of his sons expired on July 1, 2001 (unmarried). The Appellant claimed that being the daughter she was entitled to ¼ of the share in the property of her father. The case of the Respondents was that after her marriage, she ceased to be a member of the Joint family. The Hon’ble Delhi High Court disposed of the appeal as the amendments of 2005 did not benefit the Appellant as the father of the Appellant passed away on December 11, 1999.
Now, this case reached before the supreme court, but before this case, there are two major cases on the same grounds for which the divisional bench already rendered verdicts. The two cases are;
- Prakash & Ors. v. Phulavati & Ors
In this case, the court held that section 6 is not retrospective in operation, and it applies when both coparceners and his daughter were alive on the date of commencement of Amendment Act, 9th, September 2005
- Danamma @ Suman Surpur & Anr. v. Amar & Ors.
In this case, the court held that the amended provisions of section 6 confer full rights upon the daughter coparcener.
Stated that any coparcener including a daughter can claim a partition in the coparcenary property, even the coparcener’s father was not alive when the substituted provision of section 6 of HAS come into force. The daughters, sons, and the widow were given his/her shares.
Due to these two conflicting verdicts, this case was given to the larger bench of the supreme court headed by Justice Arun Mishra, with two other Justice S. Abdul Nazeer and Justice M.R. Shah.
Issues before the court:
- Whether the death of the father before amendment 2005, affects the daughter’s right over the property?
- Whether the application of amendment 2005 be retrospective?
Section 6 Hindu Succession Act 1956
The judgment of the court:
Before the amendment of 2005 under the Hindu Succession Act (HAS), the rule of survivorship existed and under that rule, the males were coparceners up to 4th generation only, the females were not able to qualify for coparceners. After the amendment, the rule of survivorship had been cancelled out and two major-heads to be considered for the partition of property that is “Testamentary and Interstate” so after that the daughters are also coparceners in her father’s inherited property and have equal liability same as sons. The fathers are free to pass his self-acquired property to anyone even someone out from the family with effect from 9th September 2005.
The term ‘coparcener’ is not defined in the Succession Act. This Court considered it in Sathyaprema Manjunatha Gowda (Smt) v. Controller of Estate Duty, Karnataka.
It is a narrower body than a joint family and consists of only those persons who have taken by birth, an interest in the property, and can enforce a partition, whenever they like.
The 174th Report of Law Commission of India recommended the adoption of the Kerala Model, and the amendments were affected in Kerala, Andhra Pradesh, Karnataka, and in several States, giving coparcenary rights to the daughters.
This case emphasizes the nature of the 2005 amendment in sec 6 of the Hindu Succession Act. The amendment applies retrospectively to provide benefits conditional arising even before the passing of such legislation.
The effect of an amendment can be seen in a manner that any action triggering partition before amendment only affects the extent of share, not the right to claim. In other words, if the partition is crystallized no change will be done in respect of amendment but if the partition isn’t done the daughter’s right to claim to remain intact.
The Hindu branch of dharma is influenced by the theological tenets of the Vedic Aryans. What is not modified or abrogated by the legislation or constitutional provisions still prevails, the basic Hindu law emanates from Vedas and past shrutis/smritis. Various dharma shastras regard custom as the basis of Hindu law as administered from time to time. Law has advanced and made progress as per the requirements of the society and the prevailing ethos. The justice used to be administered by the emperors resolving the conflicts. The building of law has taken place over time. There are two main schools of Hindu law, i.e., Mitakshara and Dayabhaga. Mitakshara law applies to most parts of India except Bengal.
As per the Mitakshara law, no coparcener has any fixed share. It keeps on fluctuating by birth or by death. It is the said principle of administration of Mitakshara coparcenary carried forward in statutory provisions of section 6. Even if a coparcener had left behind a female heir of Class I or a male claiming through such female Class I heir, there is no disruption of coparcenary by statutory fiction of partition. Fiction is only for ascertaining the share of a deceased coparcener, which would be allotted to him as and when actual partition takes place. The deemed fiction of partition is for that limited purpose. The classic Shastris Hindu law excluded the daughter from being coparcener, which injustice has now been done away with by amending the provisions in consonance with the spirit of the Constitution.
The judgment emphasized irrespective of the survivorship of the father, the Daughter acquire the right of the coparcener from birth and other related rights. While giving a contrary view in this case.
The Hon’ble Court held that irrespective of the life of the father, the daughter gets her right as coparceners.
In this manner the court was overruled the two verdicts i.e. Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors as irrespective of the living status of the father, the daughter gets the coparcenary right from birth.
Giving the daughter equal coparcenary rights aligns with the spirit of equality, under Article 14 of the Indian constitution.