Daughter's Right in Ancestral Property - Case Analysis

CASE ANALYSIS

Vineeta Sharma v. Rakesh Sharma, CIVIL APPEAL NO. DIARY NO.32601 OF 2018, decided on 11.08.2020

On 11.08.2020, the Supreme Court came out with a judgment about the Daughter’s Rights in Ancestral Property. The same was reported in various newspapers misleadingly as the Daughter’s Right in HUF Property or Parental Property, which is not the case with this judgment. This judgment gave the right to a daughter or female coparcener in Joint Hindu Family Property or Ancestral Property, whether born before or after the amendment in 2005. Please read below for a better analysis of this case.

BRIEF FACTS OF THE CASE

The Hon’ble Supreme Court was dealing with a reference relating to the interpretation of section 6 of the Hindu Succession Act, 1956, as amended by Hindu Succession (Amendment) Act, 2005 given the conflicting verdicts rendered in two Division Bench judgments in Prakash v. Phulavati, (2016) 2 SCC 36 and Danamma v. Amar, (2018) 3 SCC 343 along with a batch of Special leave petitions preferred by the appellants.

A Division Bench of the Supreme Court in Prakash v. Phulavati (supra) held that section 6 is not retrospective in operation, and it applies when both coparceners and his daughter were alive on the date of Commencement of Amendment Act, 9.9.2005. This Court further opined that the provision contained in the Explanation to section 6(5) provides for the requirement of partition for substituted section 6 to be a registered one or by a decree of a court, can have no application to a statutory notional partition on the opening of succession as provided in the unamended Section 6. The notional statutory partition is deemed to have occurred to ascertain the share of the deceased coparcener, which is not covered under the proviso to section 6(1) or section 6(5), including its Explanation. The registration requirement is inapplicable to the partition of property by operation of law, which has to be given full effect. The provisions of section 6 have been held to be prospective.

In Danamma (supra),  the Supreme Court held that the amended provisions of section 6 confer full rights to the daughter coparcener. Any coparcener, including a daughter, can claim a partition in the coparcenary property. Gurunalingappa died in 2001, leaving two daughters, two sons, and a widow. Coparcener’s father was not alive when the substituted provision of section 6 came into force. The daughters, sons and the widow were given 1/5th share apiece.

ISSUE BEFORE THE COURT

1. Does the Hindu Succession (Amendment) Act, 2005, which gave equal rights to daughters in ancestral property, have a retrospective effect?

COURT’S JUDGMENT

While delivering the judgment, the court discussed various succession-related laws. The court discusses the following:

Historical Background

There are two primary schools of Hindu law, i.e., Mitakshara and Dayabhaga. Mitakshara has been sub­divided into four schools, i.e., Benares, Mithila, Maharashtra or Bombay, and Dravida or Madras school. Benares, Mithila, Dravida, and Maharashtra denote the old names of the territories. Mitakshara law applies to most parts of India except Bengal. Maharashtra school prevailed in North India, and Bombay school in Western India. However, particular areas in Southern India are governed by Marumakkatayam, Aliyasantana, and Nambudiri law systems. Besides the various sources, custom, equity, justice, and conscience have also played a pivotal role in developing 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, the 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 independence, given the constitutional imperatives to bring about equality of status, and 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 the rights of a daughter to be a coparcener in Mitakshara coparcenary and given rights equal to that of a son.

Coparcenary and Joint Hindu Family

A joint Hindu family is a larger body than a Hindu coparcenary. A joint Hindu family consists of all persons lineally descended from a common ancestor, including their wives and unmarried daughters. The Hindu coparcenary is a much narrower body. It consists of propositus and three lineal descendants. Before 2005, it included only persons like sons, grandsons, and great­grandsons who were joint property holders. Coparcenary property is what a Hindu inherits from his father, grandfather, or great-grandfather. Property inherited from others is held in his rights and cannot be treated as forming part of the coparcenary. The property in the coparcenary is held as joint owners. Only a coparcener has a right to demand partition. The test is if a person can demand a partition; he is a coparcener, not otherwise. Great­grandson cannot require 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.

Formation of Coparcenary

The basic concept of coparcenary is based upon common ownership by coparceners. When it remains undivided, the share of the coparcener is not particular. Coparcenary is fluctuating. It increases and diminishes by death and birth in the family. If coparcenary property comes to the hands of a ‘single person’ temporarily, it would be treated as his property, and the same can be used and disposed of by him at his own sweet will. Still, once a son is born, the coparcenary would revive in terms of the Mitakshara law. Only on an actual partition is a coparcener entitled to a definite share. The interest of a coparcener is called “undivided coparcenary interest,” which remains undivided.

A Hindu coparcenary has six essential characteristics:

1. The lineal male descendants to the third generation acquire an independent right of ownership by birth and not as representing their ancestors.
2. The coparcenary members can work out their rights by demanding a party.
3. Until partition, each member has ownership extending over the entire property conjointly with the rest. So long as no partition takes place, it is difficult for any coparcener to predicate the share he might rec.
4. As a result of such co-ownership, the possession and enjoyment of the property is co.
5. There can be no alienation of the property without the concurrence of the other coparceners unless it is for legal necessity.
6. That that the interest of a deceased member lapses on his death and merges in the coparcenary propety. Applying these tests to the interest of a Hindu widow who has been introduced into a coparcenary by the Act of 1937, we find that, excepting Condition (1), all other conditions are fully satisfied in the case of a Hindu widow succeeding to the interest of her husband in a Hindu coparcenary.

Unobstructed and Obstructed Heritage
When a corporate right is created by birth, it is called unobstructed heritage. At the same time, the birthright is acquired in the property of the father, grandfather, or great-grandfather. In case a coparcener dies without leaving a male issue, the right is acquired not by birth but by there being no male issue, which is called obstructed heritage.

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

Section 6 of the Succession Act, 1956 and its Applicability

Section 6 deals with the devolution of interest in the coparcenary property of a joint Hindu family governed by the Mitakshara law. The initially enacted provision of section 6 excluded the rule of succession concerning Mitakshara coparcenary property. It provided the interest of a coparcener male Hindu who died after the commencement of the Act of 1956, who shall be governed by survivorship upon the surviving members of the coparcenary. The exception was provided that if the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative, the interest of such coparcener should devolve by testamentary or intestate succession, as the case may be, to ascertain the share of deceased coparcener, the partition has to be deemed before his death. Explanation 2 disentitled the separated person to make any claim in case of intestate succession. Though the widow or daughter could claim a share, being a Class I heir in the property left by the deceased coparcener, and a widow was entitled to having a right to claim a share in the event of partition, the daughter was not treated as a coparcener. The goal of gender justice, as constitutionally envisaged, is achieved belatedly, and the discrimination made is taken care of by substituting the provisions of section 6 of the Amendment Act, 2005.

It is apparent from the provisions of section 6 that the discrimination with the daughter has been done away with, and they have been provided equal treatment in the matter of inheritance with Mitakshara coparcenary. The amended provisions of section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener “in he

Own right” and “in the same manner as the son.” Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by birth. Section 6(1)(b) confers the same rights in the coparcenary property “as she would have had if she had been a son”. The conferral of rights is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son, and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. 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 prospective statute operates from the date of its enactment, conferring new rights. The retrospective statute operates backwards and removes or impairs vested rights acquired under existing laws. A retroactive statute does not operate retrospectively. It operates in future. However, its operation is based upon the character or status that arose earlier—characteristic or event that happened in the past or requisites drawn from antecedent events. Under the amended section 6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of the Amendment Act. Considering the principle of the coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, the daughter has been recognized and treated as a coparcener, with equal rights and liabilities as a son. The expression used in section 6 is that she becomes a coparcener in the same manner as a son. By adoption, the status of the coparcener can also be conferred. The concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under the provisions of sections 6(1)(a) and 6(1) (b). Coparcener right is by birth. Thus, the daughter’s father doesn’t need to live as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage. According to the Mitakshara coparcenary Hindu law, as administered, which is recognized in section 6(1), it is 6(5) not necessary that there should be a living coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as a son by giving birth before or after the Act. However, a daughter born before can claim these rights only with effect from the date of the amendment, i.e., 9.9.2005, with a saving of past transactions as provided in the proviso to section 6(1) read with section 6(5). The effect of the amendment is that a daughter is made coparcener, with effect from the date of the amendment, and she can also claim partition, which is a necessary concomitant of the coparcenary. Section 6(1) recognizes a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9.9.2005 to enable the daughter of a coparcener to enjoy the rights conferred to her. As the right is by birth and not by dint of inheritance, it is irrelevant whether a coparcener whose daughter is granted the rights is alive or not. Conferral is not based on the death of a father or other coparcener. If a living coparcener dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted section 6(3).

CONCLUSION

The current judgment recognizes the position as was in the Danamma judgment. It reiterates the rights that already existed with daughters and extends their rights regarding ancestral property. Hindu Succession (Amendment) Act, 2005, which gave equal rights to daughters in ancestral property, has a retrospective effect. To conclude-

• The provisions of section 6 have been held to be prospective. 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 the 20th day of December 2004.
• Since the right in the coparcenary is by birth, it is not necessary that the father coparcener should be living as of 9.9.2005.
• The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956, as initially enacted, did not bring about the actual partition or disruption of the coparcenary. The fiction was only for ascertaining the share of the deceased coparcener when he was survived by a female heir of Class­I as specified in the Schedule to the Act of 1956 or a 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 a share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
• Given the rigour of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutorily recognized mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or caused by a decree of a court. However, in exceptional cases where public documents and partition support, the plea of oral partition is finally displayed in the same manner as if it had been affected by a court decree; it may be accepted. A plea of partition based on oral evidence alone cannot be accepted or rejected outrightly.