The exclusion of daughters, in Hindu law, from participating within the coparcenary ownership not only contributed to her discrimination on the bottom of gender, but also led to oppression and negation of her fundamental right of equality guaranteed by Article 14 of the Constitution of India. The Hindu Succession Act, 1956 ("HSA"), when originally introduced was in its embryonic stage. It ironed out the inequalities in Hindu law to an extent and gave women the status of 'absolute ownership' of their property but did not recognise women as coparceners (a joint heir). As a result, the law makers observed that ending gender discrimination in Mitakshara coparcenary1 by including daughters in the system was a necessity. This paved the way for the amendment of HSA. The Hindu Succession (Amendment) Act, 2005 ("Amendment Act") was one of the crucial reforms and it came into effect on 9th September 2005. Its main objective was to do away with gender discrimination, oppression and negation of the daughter's constitutional right to equality. With a view to establish the same, Section 6 of HSA was amended to state that "on and from the commencement" of the Amendment Act, the daughter of a coparcener shall have an unobstructed heritage (i.e. right by birth) in the coparcenary property in the same manner as the son, and have the same rights and liabilities in the property as that of a son.
Notwithstanding that the Amendment Act laid foundation for achieving gender equality; there remained certain ambiguity as to the nature and extent of a daughter's right to inherit the property. This ambiguity stands resolved with the pronouncement of Supreme Court's judgment in case of Vineeta Sharma v. Rakesh Sharma ("Judgement")2 and in fact, the Apex Court has taken a step forward to safeguard women's right to equality. This judgment is a beacon of hope for daughters who have been facing discrimination and fighting for gender equality.
BRIEF FACTS OF THE CASE:
The present matter arose out of the judgement delivered by Delhi High Court, wherein the Court, after noticing the ambiguity created by conflicting decisions of Supreme Court in Prakash & Ors. v. Phulavati & Ors3 ("Phulavati Case") and Danamma @ Suman Surpur & Anr v. Amar & Ors4 ("Danamma Case"), granted a certificate of appeal. The matter was taken by the Supreme Court for interpretation of amended Section 6 and its prospective/retrospective applicability in view of its above conflicting decisions.
In Phulavati Case, the predecessor coparcener died in the year 1988 and a suit for partition was filed by the daughters in 1992. The said suit was dismissed in 2007. On an appeal, the High Court gave equal treatment to daughters as sons by applying the amended provisions of Section 6. However, the Supreme Court reversed the finding of the High Court and held that the amended Section 6 was meant to be prospective in application and not retrospective, making the rights under the amended Section 6 applicable to living daughters and living coparceners, irrespective of when such daughters were born. The Court further held that the share of the deceased coparcener has to be determined by way of notional partition in the event of the predecessor coparcener's death prior to the Amendment Act, as prescribed by the proviso to Section 6 of the HSA. To that limited extent, for a daughter claiming her right under the Amendment Act, no coparcenary property was left available to be partitioned.
In contrast to Phulavati Case, the Supreme Court in Danamma Case, took a divergent view. In this case the male coparcener died in the year 2001 and in the subsequent year, the sons of the predecessor coparcener filed a suit for partition. The suit for partition was contested by the daughters before the Trial Court as well as the High Court. In appeal, the Supreme Court held that amended Section 6, statutorily recognises the equal right of coparcenary of daughters since birth in the same manner as son, therefore observed that that the daughters were entitled to equal share in the coparcenary property even though the deceased father was not alive when the Amendment Act came into force.
ISSUES RAISED FOR CONSIDERATION BEFORE THE SUPREME COURT:
- Whether Section 6 as substituted by the Amendment Act, which confer status of a coparcener on the daughter, will have retrospective/prospective application?
- Does the daughter have a right to claim their share in the coparcenary property, in the event of demise of the predecessor coparcener, prior to the commencement of the Amendment Act?
- What will be the extent of distribution of the shares to the daughters in the event of the demise of the predecessor coparcener prior to the commencement of the Amendment Act?
- Whether in a suit for partition, where the final decree has not been passed, the daughters have a right to claim redistribution of shares in accordance with the amended Section 6?
- Whether the plea of partition based on oral evidence can be accepted?
FINDINGS/ANALYSIS OF THE COURT
While adjudicating the issues, the Supreme Court exhaustively discussed the historical background of Hindu Law and further assessed the existence of major schools of law that are prevalent in India.
The Court went on to discuss the formation of the coparcenary and stated that the concept of a coparcenary is dependent upon the joint ownership by the coparceners and such ownership in the coparcenary property remains uncertain till the conclusion of partition. The judgement states that until the coparcener has joint ownership in the coparcenary property, its right will remain uncertain and will fluctuate on account of birth and death in the family. The Court also discussed the characteristics of a coparcenary with respect to Section 6 of the HSA while referring to the Ghamandi Ram Case5 and the Controller of Estate Duty Case6.
A Mitakshara Coparcener has an Unobstructed Right of Heritage in the Property
The Supreme Court deliberated extensively on the accrual of the right of a coparcener and discussed the concept of obstructed and unobstructed heritage as prevalent in the practices, related to the division of coparcenary property under the Mitakshara law. The Court made it clear that any right which has been obtained by birth would be construed as an unobstructed right and any right created by virtue of death is to be construed as an obstructed right. It was further observed that amended Section 6 grants rights by birth and hence, is an unobstructed right as the same is not dependent upon the death of the male coparcener. On analysis of provisions of the amended Section 6(1)(a) and Section 6(1)(b) of the HSA, it was opined that post the coming into effect of the Amendment Act, rights and liabilities of a daughter of a coparcener has been recognised as pari passu with the rights and liabilities of a son and thus, the right of a daughter as a coparcener is a right which has been conferred by birth. Additionally, the Court clarified that in cases where the living coparcener dies after 09.09.2005, the coparcenary property will not devolve by way of survivorship, but will only devolve by way of testamentary and intestate succession as per the amended Section 6(3) of the HSA.
Retrospective/Prospective Applicability of Section 6 of the Amendment Act.
The Supreme Court has observed that Section 6 has undergone a "sea-change" and as a result, the contours of the amended Section 6 stand at a remarkably different footing from the unamended one. The judgement states that amended Section 6 has retroactive application and is not retrospective in nature because the rights are being conferred on daughters based on antecedent events. It has been further held that amended Section 6(1) grants a right to the daughter as a coparcener by birth which is similar to the rights of a son while, amended Section 6(2) empowers the daughter to claim such right over the coparcenary property, which has only been recognised with effect from 09.09.2005.
The judgement states that a retroactive statute is a statute whose operation is based on a status or characteristic which arose earlier than the statute itself, meaning thereby that the right of a daughter as a coparcener has been conferred by birth i.e. an antecedent event and the right of claim of such conferment has been granted by the amended Section 6(2) of HSA i.e. from 09.09.2005.
Clarification on the notional partition created by unamended Section 6 of HSA.
The unamended Section 6 provided that when a male coparcener dies intestate and leaves behind a female relative specified in Class I of the Schedule; or a male relative specified in Class I who claims through such female relative; his interest in the property would devolve upon the surviving members of such male coparcener by way of intestate succession or testamentary succession and not on other coparceners. To ascertain the share of such deceased male coparcener, a notional partition was assumed immediately before his death which then devolved upon the female relatives or persons claiming through her. The Supreme Court clarified that such notional partition is in the nature of a legal fiction created by proviso to the unamended Section 6 of HSA and does not amount to actual partition as the same was only done for the purpose of ascertaining the share of a deceased coparcener when survived by a female heir; or the heir as specified in Class I of the Schedule to the HSA.
Partition by Oral Testimony shall be considered in Exceptional Circumstances
The Supreme Court interpreted the term 'partition' as mentioned in amended Section 6(5) of the HSA by stating that Section 6 has been amended to ensure that no person can raise any frivolous defence in order to deprive daughters of their rights as coparceners. The judgement states that a special definition has been carved out in the explanation to amended Section 6(5) of the HSA to prevent from nullifying the benefit flowing from the substituted provisions.
While deliberating on the aspect of partition by different modes, the Court acknowledged that in the unamended Section 6 of the HSA, there was a provision for recognising oral partitions and thus, amended Section 6(5) needs to be interpreted to place a heavy burden of proof upon the persons claiming such oral partition. The Court further explained that, such standard of proof should include details relating to "separate occupation of portions, appropriation of the income, and consequent entry in the revenue records" as mentioned in the Mohan Singh Case7 and Digamber Patil Case8 along with supportive contemporaneous public documents and notably, should be accepted most reluctantly. The Court held that any type of claim of partition by way of oral testimony without any contemporaneous supporting documents must be rejected outrightly. While observing that, there is a clear legislative shift in terms of standard of proof of partition, the Supreme Court directed that the courts could recognise other modes of partition only in exceptional cases.
While holding that an interim decree in a partition suit does not affect the actual partition, the Court ruled that only a final decree of partition which has been given full effect with respect to its contents, shall be admissible by the Court. It has been further clarified by the Court that even if there is a registered document, the genuineness and veracity of it shall be required to be proved.
Briefly, the Supreme Court's ruling on the same can be adumbrated as follows:
- The provisions of the amended Section 6 of HSA confer the status of a coparcener to the daughters who are born before or after the Amendment Act came into effect.
- The right of being a coparcener can be claimed by daughters with effect from 09.09.2005 subject to the proviso provided under Section 6(1) of the HSA regarding the alienation of the coparcenary property happened before 20.12.2004.
- The father (male coparcener) is not needed to be alive as on 09.09.2005 for a daughter to claim her right as a coparcener under amended Section 6 of the HSA. The right of a coparcener is a right conferred by birth.
- The provisions of the amended Section 6 of the HSA has to be given full effect and therefore, any legal fiction created by the proviso to unamended Section 6 of the HSA did not bring about actual partition as the same was only for the purpose of ascertaining the rights of a deceased coparcener when he is survived by a female heir or the heir as mentioned under Class I of Schedule to unamended HSA. Irrespective of the fact that preliminary decree has already been obtained in a partition suit of coparcenary property, the daughter will have the same right over such property as sons and the pending original proceedings or appeals may be disposed of accordingly.
- With reference to amended Section 6(5) of the HSA, the plea of oral partition can only be considered in exceptional circumstances where there are contemporaneous documents of public record that can be shown. A plea of partition on the basis of oral evidence will be rejected outrightly.
In its operative part of the judgment, the Supreme Court has observed that amended Section 6 of the HSA will confer equal status of coparcener on a daughter, irrespective of the fact that, she was born before or after the Amendment Act. The Court has further clarified that daughters could exercise their rights as a coparcener even if the male coparcener (father) was not alive on the date when the Amendment Act came into force i.e. September 9, 2005. Without leaving any scope for doubt, the Court has made clear that the amended Section 6 will be applicable to all partition suits/appeals pending before various District Courts and High Courts filed before the Amendment Act came into force irrespective of the fact that a preliminary decree has been passed in such proceedings. In order to indemnify the loss suffered by the coparcenary daughters due to the delay caused by conflicting decisions, the Court has issued directions to decide all pending matters within six months from the date of pronouncement of the judgment.
Additionally, it has been observed by the Court that all the past transactions including dispositions, alienations and partitions effected before 20.12.2004, shall not be reopened by virtue of application of sub-section (5) of the amended Section 6. While rejecting the views expressed in the Phulavati Case, Mangammal Case and the Danamma Case, the Hon'ble Supreme Court has directed to place the aforesaid three cases before appropriate Bench for decision on merits.
1 The ancient schools of Hindu laws were in existence even prior to the codification of Hindu law and consists of Mitakshara School and Dayabhaga School. Under the Mitakshara coparcenary a son has a right over the joint family property since birth whereas in Dayabhaga Coparcenary a son has no right over the property by birth. It commences on the death of the father. In a patrilineal system like the Mitakshara and Dayabhaga School a woman did not acquire any interest in the joint family property by birth.
2 Vineeta Sharma v. Rakesh Sharma, 2020 SCC OnLine SC 641
3 Prakash & Ors. v. Phulavati & Ors, (2016) 2 SCC 36
4 Danamma @ Suman Surpur & Anr v. Amar & Ors, (2018) 3 SCC 343
5 State Bank of India v. Ghamandi Ram (dead) through Gurbax Rai, (1969) 2 SCC 3
6 Controller of Estate Duty, Madras v. Alladi Kuppuswamy, (1977) 3 SCC 385
7 Bhagwani v. Mohan Singh, AIR 1925 PC 13
8 Digambar Patil v. Devram, AIR 1995 SC 1728
9 Mangammal v. T.B. Raju, 2018 15 SCC 662