Supreme Court clears the air on coparcenary rights of daughters under the Hindu Succession (Amendment) Act, 2005

Introduction:

A three-judge bench of the Supreme Court in the case of Vineeta Sharma v. Rakesh Sharma & Ors. [Diary No.32601 of 2018] and a batch of similar appeals tagged together has finally settled  the issue of  applicability and scope of Sec.6 of the Hindu Succession Act, 1956 (1956 Act) as  amended by the Hindu Succession (Amendment) Act, 2005 (2005 Amendment). There was lack of clarity regarding the amended section which deals with devolution of interest in coparcenary property due to conflicting judgments of the Supreme Court in Prakash & Ors. v. Phulavati & Ors. [(2016)2SCC36] (Phulavati) and Danamma@ Suman Surpur & Anr. v. Amar & Ors. [(2018) 3 SCC 343] (Danamma).

In Phulavati, the Supreme Court held that Sec.6 would apply only when the coparcener and his daughter, both were alive on the date of commencement of the 2005 Amendment. In Danamma, while the Supreme Court agreed with  the principles laid down in Phulavati, it held that the 2005 amendment confers upon the daughter of the coparcener, the status of coparcener in her own right in the same manner as the son and accordingly, the female coparcener was given a share upon partition even if the father had died before the 2005 Amendment came in force.

Contentions:

Arguments for and against the correctness of the decision in Phulavati and Danamma were made by the parties in appeals. The Court also heard submissions of the Union of India and the Amici Curiae appointed by the Court.

Following were the main submissions made on behalf of the Union of India:

The principal submissions by the Amici Curiae were:

Decision:

The Court delved into a historical analysis of Hindu Law and the concept of Joint Hindu Family to arrive at its decision. It also went on to discuss the formation of a coparcenary. The significant findings are:

In view of the delay caused due to these conflicting decisions, the Supreme Court has directed all High Courts and subordinate courts to dispose of cases involving this issue, as far as possible, within six months.

Comment:

The interpretation of Sec.6 as settled by the Supreme Court is a progressive and a welcome decision.

In effect, after the 2005 amendment a daughter will no longer be treated on a separate footing from a son.  The Court has clarified that the father need not be alive on the date of the 2005 Amendment for the daughter to be able to claim her coparcenary right.

The judgment also clarifies the intent behind introducing a special definition of “partition” and has held that in order to protect the interests of daughters form sham transaction which could be set up to show partition, oral partitions and unregistered memorandums could be considered only in exceptional situations and after discharging a high burden of proof,. The coparcenary rights are conferred on the daughter if she is alive on the date of 2005 Amendment irrespective of her date of birth.

In so far as the self-acquired property is concerned, daughters are class I heirs and entitled to an equal share as that of a son in every intestate succession. As an outcome of this decision, the daughters will now also have an equal right in ancestral property and their father’s Joint Family property. The judgment will go a long way in promoting gender equality. This judgment may have a significant impact on the pending litigation including cases where the final decree is yet to be passed and in cases where the coparcenary property is the subject matter of a dispute.

-       Nandini Khaitan (Partner), Shreya Singh (Senior Associate) and Pratik Shanu (Senior Associate)

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