By Sahib Gabhir
The Hindu Succession Act, 1956 was one of the boldest steps taken in order to codify the Hindu Law of Succession so that it can be brought in accordance with the schools of thought on equitable inheritance.
The Hindu Succession Act, 1956 was brought into force uplifting the status and the position which a women hold in society by making sure that they get inheritance of share in their father’s property.
After this in the year 2005 Hindu Succession (Amendment) Act, 2005 came with the aim of achieving constitutional objective of gender equality, as this amendment provided daughters the exact same rights in coparcenary as the sons.[1]
However even after this amendment ambiguity was still there that whether 2005 amendment can be applied retrospectively or not. In this article we will cover the ramifications of this amendment and how recently Supreme Court in the case of Vineeta Sharma v. Rakesh Sharma & Ors has interpreted this amendment.
WHO IS A COPARCENER?
In Hindu Succession Law the term Coparcenary is used to refer a person who is in position to accept a legal right by birth in his ancestral property. Basic meaning of coparcenary is unity of title, possession and interest.
Hindu Succession Act, 1956 says that any individual who is born in a Hindu Undivided Family (HUF) is a coparcener by birth.[2] The Act says that sons and daughters both of them are coparceners in the family and rights and liabilities over the property are shared equally by them. When it comes to daughter, she is remains the coparcener even after her marriage and in case she dies then her children becomes coparceners. All coparceners are members of HUF but all members are not coparceners.[3]
ANALYSING HINDU SUCCESSION (AMENDMENT) ACT, 2005:
Parliament in the year 2005 amended Hindu Succession Act, 1956 in order to provide daughters with equal rights of inheritance and in order to give them equal rights on par with sons of the family.
This amendment meant that now daughters in a family, whether they are married or not, will have coparcenary rights with all the rights and liabilities same as to a son.
This also meant that a daughter in addition to property shares and rights will now also be liable for any debts and losses. This amendment replaced the older section 6 with the insertion of new provision.[4]
Section 6 of the Hindu Succession Act, 1956 used to deal with that how a coparcenary property of a person is transferred or delegated when he dies intestate[5].
In Amendment Act, 2005 section 6 was amended to include daughters as coparceners by birth, which meant that they would have same rights and liabilities as sons of a family.
The fundamental principles of Hindu Law were challenged by this amendment as it provided that now even females of the family can also be the Karta of the family which they weren’t allowed by previous law and whenever any reference is made to a coparcener then it would always include daughters also equally.[6]
Hindu Succession (Amendment) Act, 2005 was enacted by parliament in order to give equal rights to daughters to an equal share in Hindu joint family property by making daughter a coparcener.
However the amendment was flawed as many important aspects were not cleared by this amendment like whether daughters have the power to exercise their rights as coparceners in case their father was not alive on the date of amendment and whether this amendment can be applied retrospectively or it will be applied prospectively was also left unchecked.
Another major question which came up was that what would be the effect of making a daughter coparcener by birth, would this mean that a daughter right to share from the date when she was born or would it apply to those female who were born after 2005.[7]
LANDMARK JUDGMENT OF PRAKASH & OTHERS V. PHULVATI & OTHERS:
The Supreme Court finally after 10 years in the case of Prakash & Others v. Phulvati & Others[8], puts an end on all these questions and gave a solid crystallised judgment.
The Supreme Court in this case held that Amendment Act, 2005 is categorically prospective in nature. This means that daughters from the date of 9th September, 2005 would be considered as coparceners and will have equal share in joint family property as sons.
Important point to note here is that a daughter can be born any time before 2005 also but she should be alive in 2005 in order to claim her share. This means that her heirs if in case she dies before 2005, cannot claim a larger share as she would have had if had been alive.
Another pre-condition added by Supreme Court is that in order for a daughter to claim her right as a coparcener is that even her father must be alive at the time when the 2005 Amendment Act came into force.
Supreme Court also in its judgment held that the notional partition which the proviso of Section 6 of the un-amended Act prescribes is leading to severance of coparcenary property in the case if the predecessor coparcener (father) dies before the 2005 amendment act and therefore this will leave no coparcenary property available to be partitioned at the hand of the daughter in case she wants to claim it under Amendment Act of 2005.
VINEETA SHARMA VERDICT: LATEST INTERPRETATION OF THE AMENDMENT
A three judge bench of the Supreme Court in this case overruled the judgment of Prakash & Others v. Phulvati & Others in its entirety[9]. The crux of the judgement was that since the daughter is a coparcener by birth, therefore it would not be necessary for the father coparcener to be alive when the Amendment Act 2005 came into force.
Analysing the judgment:
The verdict given by court in this case is based on the ground that the intent behind the Amendment of Section 6 in Amendment Act 2005 was neither to give benefits to daughters prospectively nor to give those benefits retrospectively, but it was to confer benefits to daughters retroactively.
Retroactive application of legislation means that benefits are conditional upon an eligibility which may arise even before such legislation is passed. The court here while explaining the concept of retroactively application of 2005 amendment held that daughters have benefits of succession same as the sons, by birth.
The court while giving the judgment was also aware of the fact that under the Act, a distinction must be made between the right to claim a share and to what extent that share can be claimed.
A coparcener maintains stable right to claim a share in the coparcenary property but the specific share which may become available to the coparcener may fluctuate with the deaths and births in the family and it only becomes determined at partition time.
Therefore the court held that the notional partition which the proviso of Section 6 of the un-amended Act prescribes only affects the extent of share which may be claimed by a coparcener and not affect the coparcener’s right to claim a share in the very first place.[10]
The Supreme Court in present judgement in the view of express language of Section 6(1)(a) held that, the requirement for a daughter to claim her right as a coparcener is not at all dependent on the fact that her father must be alive at the time when the 2005 Amendment Act came into force.
The court gave the reasoning that since the coparcenary is right by birth, therefore it is an unobstructed heritage under Mitakshara law and so whether the father existed or not at the time of 2005 amendment act becomes irrelevant.[11]
CONCLUSION
The Hindu Succession Act has come a long way and has undergone many changes from time to time. The biggest change which came in the Hindu Succession Act was from the 2005 amendment.
This amendment however left many questions unanswered and its interpretation was considered ambiguous. The Supreme Court finally in the Vineeta Sharma case has almost tried to answer each and every question so that any ambiguity from its interpretation can be removed.
The court has made it clear that only requirement for claiming the benefits of succession under 2005 Amendment Act is firstly by birth and secondly, you have to be alive when 2005 amendment act came into force.
Therefore this means that any suit for partition in which final decree is yet to come will now be affected by Vineeta Sharma judgment and also be liable to be disposed off in harmony with the Vineeta Sharma judgment.
The important point to note is that this judgment will not deal with those final decree proceedings which have already been concluded based on former law as put down in Prakash v. Phulvati judgement.
Amendment of Hindu Succession Act and Verdicts in the cases like Vineeta Sharma is necessary to pave way for new and better law reform processes so that the Hindu Succession Act can be in line with the constitutional goal of gender equality.
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The Hindu Succession Act, 1956, § 6, substituted vide The Hindu Succession (Amendment) Act, 2005. ↑
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The Hindu Succession Act, 1956, § 6. ↑
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The Concept of Coparcenary, Available at: https://www.lawyersclubindia.com/articles/The-Concept-of-Coparcenary-Its-past-present-and-Future-in-the-Hindu-concept-of-Joint-Family-8193.asp (Accessed on 26th August). ↑
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Supra Note 1. ↑
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Supra Note 2. ↑
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Ipleaders. Coparcenary under Hindu Law, Available at: https://blog.ipleaders.in/coparcenary-hindu-law/ (Accessed on 26th August). ↑
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Mondaq.com. 2020. Living Daughters Of Living Coparceners In Or After 2005. Available at: <https://www.mondaq.com/india/wills-intestacy-estate-planning/465098/living-daughters-of-living-coparceners-in-or-after-2005-to-share-equally-in-hindu-joint-family-property (Accessed on 26th August). ↑
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(2016) 2 SCC 36. ↑
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Vineeta Sharma v. Rakesh Sharma, (2019) 6 SCC 164. ↑
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Surpra Note 7. ↑
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The Wire. The Project of Reforming Hindu Succession Act. Available at: https://thewire.in/law/hindu-succession-act-women-supreme-court (Accessed on 27th August). ↑