VINEETA SHARMA vs RAKESH SHARMA and ORS. by Devarupa Bhattacharya

VINEETA SHARMA vs RAKESH SHARMA and ORS.

Parties to the case : Vineeta Sharma (Appellants)

Vs

Rakesh Sharma & Ors (Respondents)

Bench : Justice Arun Mishra, justice Abdul Nazeer, justice MR Shah.

Introduction

“A daughter always remains a loving daughter and a son is a son until he gets a wife”- Justice Arun Mishra.

The judgment was delivered on 11.08. 2020 by the Three Judges Bench . A 122 page progressive judgment and certainly a moment to be proud of. All the daughters of HINDU JOINT FAMILY from now onwards can claim their portion in her father’s property because of this very dicission decided by the Hon’ble Supreme Court of India. The judgment lays down good law and was need of the hour because there was conflicting opinions on the question of the rights of a daughter as a coparcener and, more specifically, in what cases can those rights be suitably asserted.

Behind the scene of this Judgment

The Hindu Succession Act of 1956 is an uniform and comprehensive system of inheritance and succession into one Act. Under Section 6, of the the recognised the special right of male coparceners of a Hindu Coparcenary to inherit by birth over the coparcenary property and laid down rules for succession among the coparceners. This, however, was unjust in terms of gender and also in violation of constitutional right of equality, in so far as the daughter of a coparcener was concerned. In order to end discrimination, the Parliament passed the Hindu Succession (Amendment) Act of 2005 (Act of 2005), which came into effect from 09.09.2005, whereby Section 6 of the Act of 1956 was substituted and recognized the daughter of coparcener to be on par with that of a son, and conferred on her rights by birth on the coparcenary property, however, with a proviso that conferment of such right on a daughter shall not affect or invalidate any disposition or alienation, partition or testamentary disposition of property took place before 20.12.2004.

Issues before the Supreme Court in this case

· Whether the amended Section 6 of the Act of 2005 requires the coparcener to be alive as on 09.09.2020, for the daughter to claim rights in the coparcenary property?

· Whether the amended Section 6 of the Act of 2005 is prospective, retrospective or retroactive?

Judgment

(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) 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 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the Act of 1956 or male relative of such female.

Conclusion / summary of the instant case

The Bench, after discussing the law of creation of Mitakshara coparcener under the Hindu law, proceeded to hold the right of the daughters under the Amending Act of 2005 to be retroactive rather prospective. Under this amendment the marital status of a daughter will not effect her right to ancestral property. Under this Act if a person of HUF dies without making will then his property shall be devided equally among his sons and daughters i. e equal rights given to the female coparceners of a HUF. In case of self – acquired property the person can divide his property according to his own wishes. This provisions are only applicable in case of ancestral property.