DAUGHTERS BECOME EQUAL COPARCENERS: SUPREME COURT

Author: Kavya H., 4th Year, B.A. LL.B, SDM Law College, Mangalore.

INTRODUCTION

The Hindu Succession Act, 1956 governs the rules related to the intestate succession of the Hindus. Initially, the law relating to the succession was rooted in the Smritis and ancient texts. With the enactment of the Act, the principles of Mitakshara coparcenary were incorporated which posed a lot of ambiguities. It is often stated that the society is dynamic and so are the laws. Various statutes, judicial decisions have shaped and modified Hindu law. It is pertinent to note that one such important amendment is the 2005 amendment made to Section 6 of the Hindu Succession Act wherein it was mentioned that the daughters will be considered as coparceners in the Hindu joint family irrespective of being married or unmarried. Hence, this was considered to be one of the notable steps towards conferring larger rights of succession to women. Various judicial interpretations have paved the way for further clarity and application of the law.

In this regard, this article focuses on the landmark judgment pronounced by the Hon’ble Supreme Court of India in the case of Vineetha Sharma v. Rakesh Sharma and Others. A comparative analysis of the previous judgment Prakash and Others v. Phulavati and Others is also made. Further, the applicability of the law as to whether the law is retrospective or prospective in nature has also been analyzed in this article.

VINEETHA SHARMA v. RAKESH SHARMA & OTHERS

A ‘Coparcener’ refers to the person having the legal right in the ancestral properties. Earlier, this right was restricted only to the Hindu Undivided Family. The Equal inheritance and joint-heirship of the parental property are referred to as Coparcenary.[1]

A landmark judgment in this regard is the case of Vineetha Sharma v. Rakesh Sharma and Others[2], wherein the three-judge bench of Justice Arun Mishra, Justice S. Abdul Nazeer and Justice M R Shah of the Hon’ble Supreme Court of India held that the daughters have equal coparcenary rights even if father was not alive when Hindu Succession Act came into force.[3] Further, the Court also considered the issue of whether the Hindu Succession (Amendment) Act of 2005 has a retrospective effect.[4]

The main points laid down by the Court are:

  • The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer the status of coparcener on the daughter born before or after amendment in the same manner as a son with the 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 proviso to Section 6 of the Act was only to determine the share of the deceased coparcener.
  • Further, a petition for partition which is based on the oral evidence cannot be accepted as it is not the statutorily recognized mode of partition.

The Hon’ble Court has also made the objective of the Hindu Succession (Amendment) Act, 2005 more specific by stating that the main purpose for the Amendment was to attain the goal of gender justice and thereby made female heirs with the status of an equal coparcener. Through this decision, the Court has overruled the judgment pronounced in Prakash v. Phulavathi[5] and Danamma v. Amar[6].

PRAKASH AND OTHERS V. PHULAVATI AND OTHERS

The case dealt with a suit for partition which was filed by the daughter of the deceased in 1992. The plaint was amended by the plaintiff after the amendment of 2005 as the amendment was made during the pendency of the suit. The main issue raised before the Court of law was concerning the retrospective applicability of the 2005 amendment Act, that is, whether the coparcenary right of a daughter is available prior to the commencement of the Act.

The Supreme Court while dealing with this case referred the judgment pronounced in the case of Shyam Sunder v. Ram Kumar.[7] In this case, it was held that it is an implied rule that unless the provisions of the statutes expressly mentions its applicability to be retrospective, till then the statute is to be applied prospectively. Further, it was highlighted that the Act mentions that it is not applicable for partitions which were conducted before 20th December 2004. Hence, the Court in Prakash v. Phulavati held that the Act is applicable for the living daughter of living coparceners.

Further, the Hon’ble Court ruled that the property rights of daughters are prospective in nature. This means that the right is available only if both father and daughter are alive on the date of commencement of the Act. The Court also made a distinction between the amendment Act and Section 6 of the Hindu Succession Act. The Court was of the view that the Act itself has expressly not mentioned its application retrospectively and hence it would be inappropriate to consider its application retrospectively.

However, the Hon’ble Supreme Court in the Vineeth Sharma case[8] has respectfully disagreed with the decision taken in Prakash v. Phulavati and also with the concept of ‘living coparceners’. It was also stated that if a daughter is alive on the date of enforcement of the Amendment Act, she becomes coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of time.[9] Hence, the Supreme Court through this decision in Vineetha Sharma v. Rakesh Sharma has over-ruled the judgment pronounced in Prakash v. Phulavati.

IS IT RETROSPECTIVE OR PROSPECTIVE?

The Black’s Law Dictionary defines retrospective as, ‘looking backward contemplating what is past; having reference to a statute or things existing before the Act in question’. Hence, retrospective law refers to a law that looks backward or contemplates the past; one which is made to affect acts or facts occurring or rights occurring, before it came into force.[10]

Further, according to Halsbury’s Laws of England, the term retrospective refers to ‘any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct’.[11] This means that the retrospective statute operates backward and takes away or impairs vested rights acquired under the existing laws.

Whereas, a prospective statute operates from the date of its enactment conferring new rights.[12] It is pertinent to note that the golden rule of interpretation states that, “in the absence of anything in the enactment to show that it is to have a retrospective operation; it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed”.[13]

Hence, in the instant case, according to Section 6 of the Hindu Succession Act, since the coparcenary right is given by birth, it has a retrospective effect.

CONCLUSION

The judiciary plays a pivotal role in shaping the law. Despite the Amendment Act of 2005, various judicial interpretations have made notable changes in the existing laws. The judgment pronounced in Vineetha Sharma v. Rakesh Sharma and Others is a progressive judgment as it has portrayed gender equality and justice. This judgment proves to be a precedent in the ambit of the Hindu Succession Act as it has highlighted the retrospective effect of the law. Further, the legal lacunae in the previous judgments have also been filled by the present case. Hence, it could be concluded that the instant judgment is an authoritative decision which adds further clarity to the objective and implementation of the Amendment Act.


[1] Mayne’s, Hindu Law 963 (13th ed. 1995).

[2] Civil Appeal 32601/2018 (India).

[3] Id.

[4] supra note 2.

[5] (2016) 2 S.C.C. 36 (India).

[6] (2018) 3 S.C.C. 343 (India).

[7] (2001) 8 S.C.C. 24 (India).

[8] supra note 2.

[9] Id.

[10] Bryan A Garner, Black’s Law Dictionary 1596 (17th ed. 1999).

[11] 44 Mackay, Halsbury’s Laws Of England 570 (4th ed. 2008).

[12] Darshan Singh v. Ram Pal Singh and Another, 1992 Supp. (1) S.C.C. 191 (India).

[13] Garikapathy Veeraya v. N. Subbiah Choudhary, 1957 A.I.R. S.C. 540 (India).


Editorial Credits: Ravi Sharma
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