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Daughters right over properties - Analysis of the Judgement

Author: Aastha Singh from Chanakya National Law University, Content Writer


“A son is a son until he gets a wife. A daughter is a daughter throughout her life.”[1]

Upholding the veracity of the said statement, Justice Arun Mishra pronounced the judgment in Vineeta Sharma v. Rakesh Sharma[2],pertaining to an important question with respect to the effect of Section 6 of The Hindu Succession Act, 1956 (amended in 2005). The amendment act of 2005 was a step towards ensuring gender equality by granting equal right to property to daughters as that to men in a Hindu family. The present case was referred to the Supreme Court due to the deadlock in a suit before the Delhi High Court filed by Vineeta Sharma, a married daughter, who claimed her coparcenary right.


Soon after the enactment of the 2005 Amendment act, a number of disputes were raised after questioning the nature of the Amendment being retrospective or prospective. In 2015, the Apex Court in the case of Prakash v. Phulwati[3] held that the Amendment Act shall not have a retrospective effect. Bench comprising of Justices Anil R. Dave and A.K. Goel pronounced“the rights under the amendment are applicable to living daughters of living coparcener as on 9-9-2005, irrespective of when such daughters are born”.


However, just after two yearsin 2018 a contrary judgment was passed by the Court in the case of Danamma @ Suman Surpur vs. Amar[4],Justice A K Sikri interpreted the Act to have a retrospective effect and held that irrespective of the date of death of the father, the daughter in a Hindu Undivided Family shall be passed coparcenary right during the partition according to the Amendment Act of 2005. But in the same year the law was conflicted by judgment passed by the Court in the case ofMangammal vs. T.B. Raju[5] by a bench of equal strength headed by Justice R.K. Agarwal, who upheald the stand taken in 2015 by the Court.


To resolve the conflicting judgments passed by the bench of equal strength, the case was referred to a three judge bench in Supreme Court.

Question Raised

1. The question to the effect of the amendment is raised whether the Act of 2005 shall have a retrospective effect?

2. Whether a daughter would have a coparcener rightafter the Amendment Act of 2005 came into force in case where the deceased father who was the coparcener in a Hindu undivided family?


Provision


Section 6 of Hindu Succession Act, 1956

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,—

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) 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.


Section 6 deals with devolution of interest in coparcenary property of a joint Hindu family governed by the Mitakshara law. Exception to this section was provided that in case where the deceased had left a female relative or a male relative through a female specified in Class I heir of the Schedule, then their interest shall be devolved by testamentary or intestate succession. However, explanation 2 excluded a separated Hindu from claiming in case of interstate succession.[6]


Arguments


The learned Solicitor General of India, Mr. Tushar Mehta argued on behalf of the Union of India that Section 6 was amended in 2005 to give equal status to daughters in an ancestral property as to the sons of a Hindu undivided family.

The motive behind such amendment was to protect the fundamental right from being oppressed as a result of inequality in status of daughters and sons with respect to right to property under section 6 of the Act. He argued that the Amendment Act, 2005, does not have “a retrospective but retroactive” effect in operation as the provision of the act gives power to the daughters in exercising the coparcenary rights after the Act was commenced.


Right to coparcenary is a birthright and it is not limited by the living status of the coparcener father, the word daughter in the act shall be interpreted in border spectrum and not limited to the daughters of a living coparcener. Thus, the coparcener from whom the daughter shall inherit property may or maynot be alive as on the commencement of the Amendment Act of 2005, this does not affect the daughter’s right to ancestral property in Mitakshra Hindu Undivided Family.


Highlights of Judgement (Vineeta Sharma Vs. Rakesh Sharma)


Bench: Justices Arun Mishra, S. Abdul Naseer and MR Shah

The Court rejected the argument that daughters, in absence of living coparcenary before the commencement of the Amendment Act cannot claim coparcenary rights as in these circumstances the interest of father would have already merged in the surviving coparcenary. It was rejected on the ground that rights under section 6 are not accrued by way of death of father or any other coparcener but on the factum of birth. And after going through the arguments raised by both the parties the Benchcompromising of concluded that:

1. The section 6 of the Amended Act shall have a retrospective effect and shall be applicable in cases where daughters are born before or after the Act of 2005 came into force.

2. The Court held that rights with regard to disposition or alienation, partition or testamentary disposition on the ancestral property, which had taken place before 20th December 2004, can be claimed by the daughter in accordance with Section 6(1) of the Hindu Succession Act, 2005. It further held that the same shall be in effect retrospectively, from 9 September 2005.

3. The Right in coparcenary is by the virtue of birth and thus, status of life of father coparcener does not affect the right of daughter. That I to say that it is not necessary under section 6 that the father must be alive on 9.9.2005.

4. In view of the explanation given with respect to section 6(5), the court held that the plea for oral partition is to be out rightly rejected unless it is supported by public document that to in exceptional cases. Oral partition cannot be given as same status to statutory recognized partition through a court decree or by provisions of the Registration Act, 1908.

[1] Savita Samvedi (Ms) & Anr. v. Union of India & Ors., 1996 (2) SCC 380 [2] CIVIL APPEAL NO. DIARY NO.32601 OF 2018. [3] (2016) 2 SCC 36. [4] (2018) 3 SCC 343. [5] (2018) 15 SCC 662. [6]Section 6 of Hindu Succession Act, 1956.

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