Landmark Judgment on Equal Rights of Daughter in Coparcenary Property Amaresh Patel LANDMARK JUDGMENT Sat, Nov 28, 2020, at ,10:23 AM Landmark Judgment on Equal Rights of Daughter in Coparcenary Property Case: Vineeta Sharma vs. Rakesh Sharma & ors. C.A. No. 32601 of 2018 Date: August 11, 2020 Court: Supreme Court of India Judges: Justice Arun Mishra, Justice S. Abdul Nazeer and Justice M.R. Shah Issue: Seeks interpretation of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 as referred to a larger Bench in view of the conflicting verdicts rendered in two Division Bench judgments of this Court in Prakash & ors vs. Phulavatti & ors., (2016) 2 SCC 36 and Danamma @Suman Surpur & Anr. Vs. Amar & Ors (2018) 3 SCC 343. Fact of the Case: The question concerning the interpretation of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 has been referred to a larger Bench in view of the conflicting verdicts rendered in two Division Bench judgments of this Court in Prakash & ors vs. Phulavatti & ors., (2016) 2 SCC 36 and Danamma @Suman Surpur & Anr. Vs. Amar & Ors (2018) 3 SCC 343. Judgment of High Court in Lokmani & Ors. V. Mahadevamma & Ors. [SLP (C) No. 6840 of 2016) It was held that section 6, as amended by the Act of 2005, is deemed to be there since 17.6.1956 when the Act of 1956 came into force, the amended provisions are given retrospective effect, when the daughters were denied right in the coparcenary property, pending proceedings are to be decided in the light of the amended provisions. Inequality has been removed. The High Court held that the oral partition and unregistered partition deeds are excluded from the definition of 'partition' used in the Explanation to amended Section 6(5). Judgment of Division Bench of Supreme Court in Prakash v. Phulavatti It was 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 is 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 taken place to ascertain the share of the deceased coparcener which is not covered either under the proviso to section 6(1) or section 6(5), including its Explanation. The registration requirement is inapplicable to 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. Judgment of Supreme Court in Danamma @Suman Surpur. Vs. Amar It was held that the amended provisions of section 6 confer full rights upon the daughter coparcener. Any coparcener, including a daughter, can claim a partition in the coparcenary property. Gurunalingappa died in the year 2001, leaving behind 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. Judgment of this Court: The Court Observation against Prakash vs. Phulavati The observed that it is not necessary that the father of the daughter should be living as on the date of the amendment for the latter to claim the benefit of the 2005 amendment. Coparcener right is by birth: It is not all necessary that the father of the daughter should be living 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 not necessary that there should be 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 that of a son by taking birth before or after the Act. However, daughters born before can claim these rights only with effect from the date of the amendment, i.e, 9.9.2005 with 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 amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6 (1) recognizes a joint Hindu family governed by Mitakshara law. The coparcenary to enjoy on 9.9.2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case a living coparcener dies after 9.9.2005, inheritance is not survivorship but by intestate or testamentary succession as provided in substituted section 6 (3). 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, the coparcener father need not be alive on 9.9.2005, date of substitution of provisions of Section 6. 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, the Supreme Court disagrees with the concept of “living coparcener”, as laid down in Prakash v. Phulavati. The daughters should be living on 9.9.2005. In substituted section 6, the expression ‘daughter of a living coparcener’ has not been used. Right is given under Section 6 (1) (a) to the daughter by birth. Declaration of right based on the past event was made on 9.9.2005 and as provided in section 6(1)(b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in section 6(1)(c). Any reference to the coparcener shall include a reference to the daughter of a coparcener. The provisions of section 6 (1) leave no room to entertain the proposition that the coparcener should be living on 9.9.2005 through whom the daughter is claiming. Plea of Partition based on oral evidence, Section 6(5) of Hindu Succession Act, 1956 The expression used in Explanation to Section 6 (5) ‘partition effected by a degree of a court’ would mean giving of final effect to actual partition by passing the final decree, only then it ccan be said that a degree of a court effects partition. A preliminary decree declares share but does not effect the actual partition, that is effected by passing the final decree, thus, statutory provisions are to be given full effect, whether partition is actually carried out as per the intendment of the Act is to be found out by Court. Even if partition is supported by a registered document it is necessary to prove it had been given effect to and acted upon and is not otherwise sham or invalid or carried out by a final ecree of a court. In case partition, in fact, had been worked out finally in toto as if it would have been carried out in the same manner as if affected by a decree of a court, it can be recognized, not otherwise. A partition made by execution of deed duly registered under the Registration Act, 1908, also refers to completed event of partition not merely intendment to separate, is to be borne in mind while dealing with the special provisions of Section 6 (5) conferring rights on a daughter. There is a clear legislative departure with respect to proof of partition which prevailed earlier; thus, the Court may recognize the other mode of partition in exceptional cases based upon the continuous evidence for a long time in the shape of public document not mere stray entries then only it would not be in consonance with the spirit of the provisions of Section 6 (5) and its Explanation. Join Our WhatsApp Group for Free Updates and Sample Papers: https://chat.whatsapp.com/JL5FHRrISRE1Rr4WukHwzZ