On 11 August 2020, a three-judge Bench of the Hon'ble Supreme Court delivered a landmark ruling in Vineeta Sharma v Rakesh Sharma and Ors, Civil Appeal No 32601 of 2018 ("Vineeta"), affirming the equal rights of daughters to coparcenary property. Most significantly, the Hon'ble Apex Court has clarified that irrespective of a coparcener father being alive or not on or before the Hindu Succession (Amendment) Act, 2005 ("2005 Amendment"), a daughter would be entitled to a share in coparcenary property in the same manner as a son simply by virtue of: (i) her birth; and (ii) her being alive as on the date of coming into force of the 2005 Amendment.
The matter came up before the larger Bench of the Apex Court primarily in the context of conflicting Division Bench decisions in Prakash v Phulavati, (2016) 2 SCC 36 ("Prakash") and Danamma v Amar, (2018) 3 SCC 343 ("Danamma"), concerning the retrospective applicability of Section 6 of the Hindu Succession Act, 1956 ("1956 Act") as amended by the 2005 Amendment. Various High Courts had also dealt with ancillary issues concerning the aforesaid question and therefore, such matters were also referred to the three-judge Bench of the Apex Court.
In Prakash, the Apex Court had held that Section 6 was prospective in nature and would apply only if the coparcener and daughter were both alive as on 9 September 2005. The underlying rationale in Prakash was based on the supposed effect of the 'notional partition' contained in the proviso to Section 6 of the 1956 Act, ie, in the event of the predecessor coparcener's demise prior to the 2005 Amendment, there would be a severance of coparcenary property and consequently there would be no coparcenary property available for partition for a daughter claiming under the 2005 Amendment.
On the other hand, in Danamma, the Apex Court had held that Section 6 would apply retrospectively. In this case, the father had died in 2001, leaving behind two daughters, two sons and a widow. The Court had held that "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 birth", and consequently observed that the two daughters being coparceners, were entitled to equal share in the coparcenary property even though the father was not alive when the substituted Section 6 came into force in 2005.
Different Schools of Hindu Law
The Apex Court first delved into the applicability of different schools of Hindu law, ie, (i) the Mitakshara system which is followed in most parts of India (under the Mithila, Benares, Bombay and Dravida sub-schools) except Bengal; (ii) the Dayabhaga system which is followed primarily in Bengal; and (iii) the Marumakkatayam, Aliyasantana and Nambudiri systems which govern certain areas of South India.
The Court also duly quoted the major differences between the Mitakshara and Dayabhaga systems which were previously highlighted in State of Maharashtra v Narayan Rao Sham Rao Deshmukh, (1985) 2 SCC 321. Under the Mitakshara system, there is: (i) community of ownership; and (ii) unity of possession of joint family property between all the members of the coparcenary. However, in a coparcenary governed by the Dayabhaga school: (i) there is no unity of ownership of coparcenary property between members; (ii) every coparcener takes a defined share in the property and he is the owner of such share; (iii) there is unity of possession; and (iv) the share does not fluctuate due to births and deaths. Thus, under Dayabhaga law, the recognition of the right to a definite share does not militate against the owners of the property being treated as belonging to a family.
Joint Hindu Family v Hindu Coparcenary
The Apex Court also elaborated upon the differences between the meaning of "Joint Hindu Family" and "Hindu Coparcenary" (particularly under the pre-2005 scenario). The Court held that a Joint Hindu Family is a larger body than a Hindu Coparcenary and that the former: (i) consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters; (ii) is one in worship and holds joint assets, and that after separation of assets, the family ceases to be joint.
On the other hand, the Court reiterated that a Hindu Coparcenary: (i) only consists of a propositus and three lineal descendants; (ii) previously included only those persons such as sons, grandsons and great-grandsons who are holders of joint property (women could not be coparceners prior to the 2005 Amendment); (iii) coparcener heirs acquire rights in property by birth or adoption; and (iv) the test to determine if one is a coparcener or not is to ascertain if he has a right to claim partition. It was further held that a coparcenary property is one which is inherited by a Hindu from his father, grandfather or great-grandfather, and that such coparcenary property is held in the capacity of joint owners. It was further reiterated that property inherited from others could not be treated as part of the coparcenary.
Unobstructed v obstructed heritage: Devolution of Coparcenary Property
The three-judge Bench thereafter proceeded to opine that since the amended Sec 6 confers a right by virtue of one's birth ("unobstructed heritage"), as opposed to conferring a right upon an owner's death ("obstructed heritage"), a father need not be alive as on 9 September 2005, ie, the date of commencement of the 2005 Amendment, in order for a daughter to be considered a coparcener.
The Court went on to explain that prior to the 2005 Amendment, Sec 6 provided that on the death of a male Hindu, a coparcener's interest in Mitakshara coparcenary shall devolve by survivorship upon the surviving members of the coparcenary under the uncodified Hindu law, and not in accordance with the mode of succession prescribed under the 1956 Act. However, in the case of a male Hindu leaving behind a surviving female Class I heir or a male relative claiming through such a female heir, an exception had been carved out for succession by inheritance in terms of the 1956 Act. It was in the context of such an exception that the legal fiction of partition had been created, to ascertain the share of the deceased immediately prior to his death. Such notional partition was only aimed at determining the extent of the share and did not affect the right to claim a share per se.
On the other hand, the amended Sec 6 makes a daughter a coparcener "in her own right" by virtue of her birth and "in the same manner as the son", and she would consequently have the same rights and liabilities as that of a male coparcener, in keeping with the right to equality under the Constitutional scheme. This would however be subject to the non-obstante clause set out in the proviso to sub-section (1) which saves any disposition or alienation including any partition or testamentary disposition of properties which had taken place prior to 20 December 2004.
Retroactive Application of 2005 Amendment
The Court further held that while such rights could be claimed by a daughter w.e.f. 9 September 2005, the provisions of the 2005 Amendment would be retroactive (as opposed to retrospective) in their application. A retroactive statute is one which operates in futuro - its applicability is based upon the character or status that arose earlier, and confers benefits based on an antecedent event, which in the present scenario is the 'birth' of the daughter. Since the daughter is considered to be a coparcener by virtue of this event, the provisions of the 2005 Amendment shall operate on rights claimed on and after the date of the said Amendment. The Court further observed that since the operative requirement under the amended Section 6 is birth, there is no requirement of both the father and the daughter being alive as on 9 September 2005, as the daughter is not bound by principles of obstructed heritage. An imperative condition is that the coparcenary must have existed as on 9 September 2005.
Manner of Acquisition of Rights in Coparcenary Property post the 2005 Amendment
The Court also categorically held that post the 2005 Amendment, interest in coparcenary property can be acquired only by birth or through adoption within permissible degrees, and not otherwise. Further, the Court has categorically held that survivorship as a mode of succession of a Mitakshara coparcener, has been abrogated since 9 September 2005, by virtue of Section 6 (3) of the 2005 Amendment.
Rejection of Effect of Statutory Fiction
As highlighted above, the Court observed that the statutory fiction created by the Proviso to Section 6 of the 1956 Act was only for the purpose of determining the share of the deceased coparcener, who was survived by a female heir of Class I or a male relative of such female heir. The concept of deemed or notional partition was employed for the limited purpose of giving effect to the Explanation to Section 6 of the 1956 Act. The Court further held that the mere severance of status by filing of a partition suit or passing of a preliminary decree would not be the same as actual partition and that till the date of final decree, changes in law and changes due to subsequent events ought to be taken into consideration. Therefore, notwithstanding that a preliminary decree has been passed, daughters are to be given a share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
Explanation to Section 6(5)
While reiterating the need to protect the interests of coparcener daughters against unscrupulous tactics and false defences, the Court held that a plea of oral partition ought not to be readily accepted and that ordinarily, only a partition effected by a registered instrument or by a decree of a Court ought to be recognized. A heavy burden of proof has been cast upon proponents of oral partition including demonstrating separate occupation of portions, appropriation of income, etc which ought to be supported by cogent and unimpeachable contemporaneous public documents, which too may be accepted only very reluctantly in exceptional cases after exercising all safeguards.
The Court overruled the decisions in Prakash as well as Mangammal v T B Raju, (2018) 15 SCC 662 (which had followed the dictum in Prakash), as they reflected inconsistent views vis-a vis the scheme of Section 6. The decision in Danamma has also been partially overruled to the extent that it is contrary to the present ruling.
A Judgement on these lines by a larger Bench is welcome since it not only corrects historical wrongs against women but also puts to rest the controversy created by inconsistent views taken by different Courts. From a practical standpoint, this ruling could inter alia have the following implications:
- Plethora of fresh legal proceedings being initiated before Civil Courts, High Courts and Debt Recovery Tribunals. Apart from male coparceners, developers, banks and financial institutions are also likely to witness a sharp rise in litigations where they are arrayed as parties, including suits in the nature of partition, declaration, cancellation and injunction, as well as challenges to the validity of mortgages in order to defeat loan recovery/ securitization proceedings;
- Direct impact on ongoing partition suits where final decree(s) are yet to be drawn up since trial Courts will have to consider afresh these significant clarifications made by the three-Judge Bench. Previously unsuccessful litigants are also likely to re-agitate partition disputes by invoking the retroactive aspect of this ruling;
- Re-structuring of HUF assets, especially amongst male dominated family businesses; and
- Due diligences of past/ ongoing property acquisitions as well as lending transactions having to be re-visited. Future diligences will also have to be carefully examined from the prism of these clarifications.
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