VINEETA SHARMA vs RAKESH SHARMA (2019) :TOWARDS AN EQUAL COPARCENARY RIGHTS Namisha Ojha Family Law Thu, Nov 03, 2022, at ,10:33 PM IntroductionWe all are aware of the fact that since ancient times,women have been given limited rights in almost every sphere of life. It is always the male child who enjoys privileges and rights in the society. Similarly, the same kind of gender inequality was seen in the notion of inheritance of ancestral property in the Joint Hindu Family. Females particularly daughters, were deprived of the opportunity to inherit property of her own parents. It was always the supremacy of male child to inherit the property. However, as we all know change is the only constant and apparently there was a need to address this gender inequality in property rights. There came the famous landmark amendment in the Hindu Succession Act of 1956 in the year 2005 with the most related landmark case Vineeta Sharma vs Rakesh Sharma judgement. Before starting the case, it’s important to understand the concept of coparcenary property in Joint Hindu Family. It is a narrower concept within a Joint Hindu Family. It consists of ancestral property and the persons having the interest in the property are called coparceners. It is a creation of law and is created by birth or adoption. There is a four-generation rule which implies consisting of only male members up to three generations including the last male common ancestor. History/ Facts of the caseIn this instance, the father, Sh. Dev Dutt Sharma, had a wife, a daughter, and three children. On December 11, 1999, he passed away. On July 1, 2001, one of his unmarried sons passed away. The daughter, Ms. Vineeta Sharma (Appellant), then brought legal action against her mother and both of her father's brothers, Mr. Rakesh Sharma and Satyendra Sharma (Respondents). As her father's daughter, the appellant claimed she was entitled to one-fourth of his share of the property. The respondents said that she was no longer a part of the joint family as a result of her marriage and therefore not entitled to the coparcener to the party. The issues raised in the case were-Can the daughter be considered as one of the coparceners in Hindu Undivided Family?What would happen to the daughter's claim to the property if the father had died before the 2005 amendment?Will the 2005 amendment be applied retroactively?The judgement-The three judges who were on the bench to decide the matter in question were Justice Arun Mishra, M. R. Shah, and S. Abdul Nazeer. As a result, it overturned the Phulvati v. Prakash ruling and determined that the coparcenary rights transfer from the father to a living daughter instead of from a living coparcener to a living daughter. The disputes that had developed earlier has been resolved and the court concludes by stating that regardless of whether the daughter's father is alive or not, she is recognised to be a Coparcener by birth. The court concluded that the requirements of section 6 only had retroactive implications rather than prospective ones. It also held that the provision in Section 6 does not apply to a Notional partition made to determine a coparcener's shares after his death since it is not an actual partition. Since the notional partition clearly defines the extent of the shares. It's like envisioning the division and determining the approximate share; the notional partition is nothing more than the partition and is not the real partition. So the court in this case rejected the concept of notional partition which was upheld in Phulvati v Prakash. Analysis of the case-The bone of contention was the Section 6 of the Hindu Succession Act, 2005. Section 6 as per Hindu Succession Act, 1956 provided only for the male persons to be a coparcenary to the property. It excluded females from becoming coparceners to the property. Therefore, to remove this disparity the amendment of 2005 was enacted. It provided daughters, granddaughters and great-granddaughters for coparcenary rights. Alike the son, she will have both the rights and liabilities to the property. It reads as, “Devolution of interest in coparcenary property. —1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—2) by birth become a coparcener in her own right in the same manner as the son;3) have the same rights in the coparcenary property as she would have had if she had been a son;4) be subject to the same liabilities in respect of the said coparcenary property as that of a son,” Prior to this case, there were two prominent cases that led to the conflict between deciding whether the daughters have the right in the property and if the amendment act of 2005 can be applied retrospectively in case the father dies before 2005 and the daughters shall be entitled to get share in the property. The ruling resolved the issues that had arisen between the Prakash vs Phulwati and Danamma vs Amar. In the former case, the SC ruled that the provisions are prospective, so a living daughter of a living coparcener will receive coparcenary rights, which meant both the father and the daughter had to be alive by November 9, 2005 .In the latter case, a legal disagreement resulted since this ruling did not occur in line with the preceding judgement. In the historic Judgment of Vineeta Sharma case, the Honorable Supreme Court said it is not essential for the daughter and the coparcener to be living as of the amendment date, which is September 9, 2005. I agree with this ruling because the fundamental goal of the amendment was to provide females the same rights as sons, setting a cutoff date would be in direct opposition to that goal.In addition, it was decided that a daughter may claim a portion of the joint family property regardless of whether a notional partition had been completed prior to 9 November 2005, since a notional partition is different from a actual partition and does not destroy coparcenary property.Conclusion The court in this case cleared many lacunas in law which was necessary for removing disparity between sons and daughters. The judgement empowered the daughters to be at par with the sons of her family.Thus, the latest Supreme Court decision is a commendable step toward putting an end to gender discrimination and implementing Section 6 amendment of 2005 in its original intent. Additionally, it ends the multiple conflicting court rulings.