Daughters become equal coparceners at birth even if born prior to 2005 amendment to Hindu Succession Act: Supreme Court

Daughters become equal coparceners at birth even if born prior to 2005 amendment to Hindu Succession Act: Supreme Court

The landmark ruling says that even if the father coparcener died before the 2005 amendment, the daughter would still have equal coparcenary rights to inherit her father's share in property.

Shruti Mahajan

Aug 11, 2020, 12:43 PM IST

The Supreme Court today held that daughters would have equal coparcenery rights in Hindu Undivided Family (HUF) properties even if they were born before the 2005 amendment to the Hindu Succession Act, 1956 and regardless of whethertheir father coparcener had died before the amendment. (Vineeta Sharma v. Rakesh Sharma).

In effect, the Court has ruled that the 2005 amendment would have retroactive effect in conferring rights on daughters who were alive at the time of the amendment, even if they were born prior to it.

A three-Judge Bench of Justices Arun Mishra, S Abdul Nazeer and MR Shah passed the verdict in a reference that was made in appeals raising the issue of whether the amendment to the Act granting equal rights to daughters to inherit ancestral property would have retrospective effect.

Recognizing the importance of conferring equal rights on daughters and sons, Justice Mishra, while reading out the operative part of the judgment on this reference said,

"Daughters have to be given equal share of coparcenary rights in share of property like the son."

The Court has stressed that the coparcenery rights are acquired by a daughter at birth regardless of whether the daughter was born before or after the amendment to the Act was effected. By virtue of acquiring this right at birth, it is not necessary for the father coparcener to have been alive at the time of the 2005 amendment, the Court has further clarified.

This right of the daughter can be claimed in light of the 2005 amendment and is curtailed only in case the property has been disposed by other means prior to December 20, 2004, a cut off date provided for in Section 6(1) of the Act.

The Court has held:

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.

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.

Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

The Court further also held that the statutory fiction of partition that was created in the proviso to Section 6 of the pre-amendment Act was only for the purpose ascertaining the share of the deceased coparcener, judgment says. This landmark ruling also says regardless of the preliminary decree passed, the decree passed in appeals or for final decree ought to give equal coparcenery share to daughters as sons are given.

As regards oral partition of property, the Court said that the plea for oral partititon cannot be accepted as a statutorily recognised mode of partition given effect to by a duly registered document. The judgment adds,

"...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 outrightly."

Issue before the Court:

The issue raised before the Supreme Court was whether with the passing of the Hindu Succession (Amendment) Act, 2005, a daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. In other words, whether a daughter could be denied her share on the ground that she were born prior to the enactment of the Act and, therefore, cannot be treated as coparcener?

The lead case in this batch of appeals was a challenge to the decision of the Delhi High Court which highlighted the difference in opinion between benches of the Supreme Court.

In the current case, the Delhi High Court granted a certificate of fitness to appeal having regard to the fact that there are conflicting decisions of the Supreme Court in Prakash v. Phulavati, Danamma @ Suman Surpur v. Amar, and Mangammal v. TB Raju.

Contrarian View in precedents:

In Prakash v. Phulavati, the Supreme Court had held that “the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born.” In other words, if the coparcener (father) had passed away prior to September 9, 2005 (date on which the amendment came into effect), the living daughter of the coparcener would have no right to coparcenary property.

In Danamma v. Amar, the Supreme Court had held that the 2005 amendment confers upon the daughter the status of acoparcener in her own right in the same manner as the son. Thus, it confers equal rights and liabilities in the coparcener properties to daughters and sons.

Reference to larger Bench:

In November 2018, a three-Judge Bench headed by Justice AK Sikri had noted that the matter needed to be heard by a three-Judge Bench to settle the contradiction of views.

Supreme Court's landmark ruling on interpretation of S.6 of Hindu Succession Act

3-judge Bench of SC to reconsider Daughter’s Coparcenary rights after 2005 Amendment to Hindu Succession Act

Court's findings today batting for equal coparcenery rights for daughters:

The property inherited as coparcenary in a Joint Hindu Family or a Hindu Undivided Family is passed on through familial decent and held jointly. Prior to 2005, the conference of coparcenary on birth was only granted on sons, grandsons, and such leaving out the daughters from acquiring coparcenary rights, but this changed in 2005. While explaining the same, the Court also highlighted that only a coparcener has the right to demand partition.

The Court says that goal of gender justice was achieved when in 2005, Section 6 was substituted in the 1956 Act to make female heirs equal coparceners.

The goal of gender justice as constitutionally envisaged is achieved though belatedly, and the discrimination made is taken care of by substituting the provisions of section 6 by Amendment Act, 2005.

Supreme Court said

Delving into the statement of object of the amendment as well as the language used in the substituted section, the Court says that the aim of treating daughters at par with sons is achieved albeit with the restriction only as regards property that was already disposed of prior to December 2004 which is clearly laid down in Section 6 sub-section (1) in a non-obstante clause.

Retroactive vs Prospective:

When the provision was amended, it granted coparcernary rights on the daughter making her a coparcener "in her own right" in the same way as the son and this right took effect by virtue of birth. Explaining the same, the judgment elaborates,

"Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener"

While a statute with prospective effect operates from the date of its enactment, a legislation with the retroactive effect would work backwards and also undo the impairment caused prior to its coming into force. This amendment too operates in futuro but by virtue of its retroactive operation, it confers rights on daughters from the time of their birth even if the birth took place prior to the amendment, the Court explains.

"its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended section 6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act"

Thus, effectively, it becomes unimportant whether the father coparcener was alive at the time the amendment was brought it or not considering the daughter, by virtue of this amendment, acquired the rights of a coparcener with the retroactive application.

Today, the Court laid down the law as regards interpretation of Section 6 of the Hindu Succession Act and thus, in light of this judgment directed for the pending cases to be disposed of expeditiously.