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Section 6, Hindu Succession Act- Vineeta Sharma vs. Rakesh Sharma:- Removing Gender Bias

"We must work together to ensure the equitable distribution of wealth, opportunity, and power in our society."-Nelson Mandela

Post-independence, the laws relating to intestate succession amongst the Hindus are governed by the Hindu Succession Act, 1956. This Act was enacted to lay down a uniform system of inheritance in the matters of succession among the Hindus. However, the principles governing succession of the Coparcenary property were distinct and different under the Act.

The term 'Coparcenary' is a much narrower body than a joint family, and consists of only those persons who have taken by birth, an interest in the property of the holder, for the time being, and who can enforce a partition whenever they like.The coparcener must be a member of the family, but a member of the family need not always be a coparcener. The eldest of the coparcener is called the Karta of the family.

Article 236 of the Mulla's Hindu Law defines "Karta" as: "Manager - Property belonging to a joint family is ordinarily managed by the father or other senior member for the time being of the family: The Manager of a joint family is called Karta."

The basic concept of coparcenary prior to the amendment of 2005 in Hindu Succession Act was that only male members of a joint Hindu family could constitute a coparcenary, completely excluding the female members of the family. This concept has been substantially amended with the amendment of Section 6 of the Act. The said 2005 amendment also omitted Section 23 of Act which disentitled a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family, until the male heirs choose to divide their respective shares therein.

The amended Section 6 of The Hindu Succession Act, 1956, which came in effect vide Act 39 of 2005 w.e.f. from 09-09-2005 reads as under: -

S.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, -

(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.

(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 in, 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,-

(a) the daughter is allotted the same share as is allotted to a son;

(b) 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

(c) 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 pre-deceased daughter, as the case may be.

Explanation. -For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(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-

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) 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.

Explanation. -For the purposes of clause (a), the expression "son", "grandson" or "great-grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation. -For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.

Thus, the amendment balanced the property rights of male and female siblings with regard to the rights in the coparcenary property. Though the amendment was clearly to be implemented from 09-09-2005 yet, soon after the amendment, the question regarding the prospective or retrospective operation of the amendment came up before few high courts.

One set of thought was that in the absence of any express provision or an implied intention to the contrary, an amendment dealing with a substantive right is prospective and does not affect the vested rights. It was based on the legal principle that succession never remains in abeyance, and opens on the date of the death of the testator, and the rights of the heirs get crystallised on that day, even if partition by metes and bounds had not taken place. Thus, the subsequent amendment cannot undo, what has been done earlier, by re-opening the partition, even if notional.

The counter thought was that the amendment being a piece of social/welfare legislation, to remove discrimination against women in the light of 174th Report of the Law Commission, the amendment should be read as being retrospective.

Whereas the Karnataka High Court in 2010 (57) RCR (Civil) 160 Pushpalatha N.V. v. V. Padma, interpreted the Amendment Act to have retrospective effect from the date of the coming into force of the Hindu Succession Act, 1956, the Full Bench of the Bombay High Court in 2014(4) RCR (Civil) 620 Shri Badrinarayan Shankar Bhandari and others v. Ompraskash Shankar Bhandar, interpreted the Amendment Act to have effect from the date of coming into force of the Amendment Act. Similarly, conflicting views were taken by different High Courts regarding the applicability of the said amendment.

The said question of law ultimately came to be decided by the Supreme Court in Prakash v. Phulavati, 2015 (4) RCR (Civil) 952, whereby it was held:

"22. In this background, we find that the proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20th December, 2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20th December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the Amendment in Section 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20th December, 2004. In no case statutory notional partition even after 20th December, 2004 could be covered by the Explanation or the proviso in question.

23. Accordingly, we hold 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." (emphasis supplied by the writer).

The Crux of this judgement is that, if the coparcener (father) had passed away prior to 09.09.2005, i.e. prior to the date when the said amendment was enforced, the living daughter of the coparcener would have no right to coparcenary property. Thus, for a daughter to claim any right in the property or exercise any right of partition for the same, she must prove that her father was alive on 09-09-2005 else she would lose her claim in the same. Phulvati's case, supra, is based upon the cardinal principle of law that succession does not remain in abeyance, and the rights of the heirs qua succession are settled immediately at the time of the death. Thus, the court clearly held that the amendment in the Act can only be effective if the death of the father occurs after the date of enactment i.e. is after 09-09-2005. In the absence of any express provisions, it was held that the Act cannot be applied retrospectively, even if it is a social legislation. Thus, accordingly, the amended provision shall only apply to the "living daughters of living coparceners" at the time of enactment and the transactions prior shall remain unaffected.

Although the said decision of the supreme court had put this controversy at rest, but once again the said position was reanalysed by the supreme court in Danamma @ Suman Surpur & Anr. v. Amar & Ors. 2018 (1) RCR (Civil) 863.

As per the facts of that case, the appellants were the daughters of a coparcener who had died in 2001. The respondents were the sons of the deceased, who had filed a suit for partition of the property in 2002. They claimed that the daughters were born prior to 1956, the enactment of the Act. The trial court had denied any share to the daughters. Relying upon Pushpalatha case (Supra) the appeals to High Court were also dismissed. However, the Supreme Court, while replying upon Phulavati's case and discussing the ratio laid down in Bombay Full Bench Judgement Supra reversed the impugned judgements.

The question was whether by the virtue of the amendment, the daughters would become coparceners "in the same right as the sons". The Supreme Court considered Phulavati's case (supra) and agreed with the findings, yet applied a different principle while granting relief to the daughters. It was held that partition is not complete with passing of a preliminary decree alone and attains finality only with the passing of the final decree. The Supreme Court further held that although the suit was filed in the year 2002, the preliminary decree was passed in the year 2007 and therefore, the daughters were entitled to the benefit of the Amendment Act.

It was laid down that

"24. Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognises the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognised. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-s (1)(a) and (b)."

Since the principle laid down in Phulavati case supra, was agreed upon, and still continues to be good law, a daughter whose father had died before the amendment came into force, cannot claim the benefit of the amending Act. However, going strictly by the ratio and facts in Danamma's case, supra, a daughter will be entitled to the benefits of the amendment Act in a pending suit filed after 2005, regardless of when her father died.

The said conflict in the reasoning of both these judgements further created a confusion with regard to the correct position of law with regard to the applicability of the amendment, and ultimately again in Vineeeta Sharma v. Rakesh Sharma, Civil Appeal No. 32601 of 2018, vide order dated 05-12-2018, the Supreme Court while hearing a similar question of law ordered that :

"There is a conflict of opinion in two Division Bench Judgments of this Court i.e. 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.

In view thereof, this matter has to be heard by a Bench of three Judge. Though we are sitting in combination of three Judge Bench, learned counsel for the respondent has drawn our attention to Order VI Rule 2 of the Supreme Court Rules, 2013 as per which the matter is to be referred to Hon'ble the Chief Justice and it is for the Hon'ble Chief Justice to constitute a Bench for hearing the matter.

We accordingly direct the Registry to place the matter before Hon'ble the Chief Justice for constitution of the Bench."

The said civil appeal was decided by the Supreme Court on 11th August 2020 whereby a detailed reasoning has been given by the Supreme Court holding that :-

"Besides the various sources, custom, equity, justice, and conscience have also played a pivotal role in the development of Hindu law, which prevailed. When the law was silent on certain aspects, Judicial decisions also acted as a source of law. Hindu law was not static but always progressive. Slowly necessity was felt for the codification of Hindu law. In particular, women's rights were taken care of, and attempts were made to remove the anomalies and unscrupulous practices. Necessity was also felt after the independence, given the constitutional imperatives to bring about equality of status, the codified law has been amended from time to time. The latest attempt has been made by way of amending the Hindu Succession Act concerning rights of daughter to be a coparcener in Mitakshara coparcenary and has been given the rights equal to that of a son......"

"......As earlier, a woman could not be a coparcener, but she could still be a joint family member. By substituted section 6 with effect from 9.9.2005 daughters are recognised as coparceners in their rights, by birth in the family like a son. Coparcenary is the creation of law. Only a coparcener has a right to demand partition. Test is if a person can demand a partition, he is a coparcener not otherwise. Great great-grandson cannot demand a partition as he is not a coparcener. In a case out of three male descendants, one or other has died, the last holder, even a fifth descendant, can claim partition. In case they are alive, he is excluded......."

"............In Mitakshara coparcenary, there is unobstructed heritage, i.e.,apratibandha daya and obstructed heritage i.e., sapratibandha daya. When right is created by birth is called unobstructed heritage. At the same time, the birth right is acquired in the property of the father, grandfather, or great grandfather. In case a coparcener dies without leaving a male issue, right is acquired not by birth, but by virtue of there being no male issue is called obstructed heritage. It is obstructed because the accrual of right to it is obstructed by the owner's existence. It is only on his death that obstructed heritage takes place......"

".......It is apparent that unobstructed heritage takes place by birth,and the obstructed heritage takes place after the death of the owner. It is significant to note that under section 6 by birth, right is given that is called unobstructed heritage. It is not the obstructed heritage depending upon the owner's death. Thus, coparcener father need not be alive on 9.9.2005, date of substitution of provisions of Section 6..."

"....... We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the date of the amendment. A finding has been recorded in Prakash v. Phulavati that the rights under the substituted section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of "living coparcener", as laid down in Prakash v. Phulavati....."

"......the intendment of amended Section 6 is to ensure that daughters are not deprived of their rights of obtaining share on becoming coparcener and claiming a partition of the coparcenary property by setting up the frivolous defence of oral partition and/or recorded in the unregistered memorandum of partition. The Court has to keep in mind the possibility that a plea of oral partition may beset up, fraudulently or in collusion, or based on unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognized under Section 6(5)......"

".....coparceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener had separated from them. It is also quite clear that if a joint Hindu family separates, the family or any members of it may agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved. In Hari Baksh v. Babu Lal, AIR 1924 PC 126, it was laid down that in case there are two coparcener brothers, it is not necessary that there would be a separation inter se family of the two brothers. The family of both the brothers may continue to be joint.The severance of status may take place from the date of filing of a suit; however, a decree is necessary for working out the results of the same, and there may be a change of rights during the pendency of the suit for allotting definite shares till final decree is passed. There are cases in which partition can be reopened on the ground of fraud or mistake, etc. or on certain other permissible grounds. In appropriate cases, it can be reopened at the instance of minor also. The protection of rights of daughters as coparcener is envisaged in the substituted Section 6 of the Act of 1956 recognises the partition brought about by a decree of a court or effected by a registered instrument. The partition so effected before 20.12.2004 is saved...."

Thus, discussing and elaborating the entire law on the issue the court answered the reference holding that: -

i) 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.

(ii) 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.

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

(iv) 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.

(v) 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 recognised 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 outrightly."

"....... In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision......"

Thus, in the above noted reference the Supreme Court has not only explained the concept and scope of the 2005 amendment by discussing the entire case law on the subject but has also put to rest the anomaly created by different interpretation of the law by Phulvati and Danamma's judgements.

The ratio of law as laid down by Vineeta Sharma's Judgement is that :-

• A coparcenary property that comes to the hands of a 'single person' temporarily, would be treated as his property, but once a son is born, coparcenary would revive in terms of the Mitakshara law.

• The word daughter as inserted by way of 2005 amendment shall have the same effect as that of a son.

• It is only on actual partition a coparcener becomes entitled to a definite share. The interest of a coparcener is called "undivided coparcenary interest," which remains undivided.

• 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. Thus, regardless of the preliminary decree passed, the decree passed in appeals or for final decree ought to give equal coparcenary share to daughters as sons are given.

• The court also held that "...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."

• 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.

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

• 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.

• The statute with prospective effect operates from the date of its enactment, and a legislation with the retroactive effect would work backwards and also undo the impairment caused prior to its coming into force. Thus, the amendment of 2005 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.

Thus, the effect of this judgment is that in the matters of inheritance under section 6 of the Hindu Succession Act 1956, the daughters as well as the sons get the equal right in the property left by their father. It is immaterial whether the father died prior to the amendment or after the same and any partition or family arrangement so pleaded by the other coparceners excluding the daughters shall have to be ignored outrightly unless the same is proved beyond doubt. The Supreme Court while removing the discrimination between a son and a daughter observed that "A common saying is worth pressing into service...A son is a son until he gets a wife. A daughter is a daughter throughout her life."

Though the said judgement has put all the speculation at rest by removing the gender bias between a son and daughter but still there are many such grey avenues which are yet to be evolve and adjudicated upon, making the law well settled on the point.

As already discussed, inheritance law knows no gender and the same is equal for a son and a daughter but the law has also another recognises transgenders as the third gender and interestingly the statute and all the judgements so far on the subject are silent about it. Thus, the same also needs to be addressed sometime by judicial precedents.

It may also be pertinent to mention here that the said amendment in section 6 has also proceeded to remove the distinction between a married and an unmarried daughter, and the 2005 amendment gives equal rights to daughters in the coparcenary, as much as it gives to the sons.

As discussed above in the preceding paragraphs, that it has always been the position that the eldest of the coparceners is called the Karta of the Coparcenary, and has all the rights for the control and management of the coparcenary property.

Another important question that still remains unsettled and unanswered is as to whether women or daughters (married and unmarried both) can be allowed to become managers or Karta of the joint hindu family, and manage the properties of the family, as such.

The question so involved may be of crucial importance, and is anticipated for the reason that daughters after marriage are usually uprooted from their father's home and are rooted to their matrimonial home i.e. husband's family, and thus may live far away from the joint family of their father/brothers, and staying in their husband's family, after their marriage, could be venerable to the influence of their husbands or husbands' families. However, not only these, but many other complex questions would arise regarding the inheritance and succession, in case of a married daughter residing elsewhere, acting as a female Karta. Thus, the said amendment of 2005 removing the distinction between the role of Karta, being a son or a daughter, and with no further distinction between a married and an unmarried daughter, or a daughter who is subsequently married, has wakened up a multiple range of complexities, which are though somewhat settled but not fully solved by judicial precedents.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

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