UNDERSTANDING THE SCOPE OF A HINDU DAUGHTER’S RIGHT IN COPARCENARY PROPERTY THROUGH THE LENSE OF VINEETA SHARMA V. RAKESH SHARMA. By - Mihika Suryavanshi
UNDERSTANDING THE SCOPE OF A HINDU DAUGHTER’S RIGHT
IN COPARCENARY PROPERTY THROUGH THE LENSE OF VINEETA SHARMA V. RAKESH SHARMA.
Authored By
- Mihika Suryavanshi,
INTRODUCTION
This
landmark judgement revolves around the Hindu Succession Act and the Coparcenary
Rights of Daughters in Hindus.
HISTORY OF HINDU SUCCESSION ACT
In Hindu
law, the distinction between self-acquired property and ancestral property must
be made to understand the devolution of Coparcenary Property.
The
Mitakshara Law[1]
recognized the devolution of property via survivorship and succession. While
the rule of survivorship is applied only to Hindu joint-family properties, the
rule of succession revolves around both self-acquired and ancestral property.
Section
6 of the Hindu Succession Act, 1956 dealt the devolution of Coparcenary
Property till it was amended by the Hindu Succession Amendment Act, 2005.
Therefore, Section 6 must be understood from how it stood before and after the
2005 Amendment.
INTEREST OF CO-PARCERNARY PROPERTY (BEFORE 2005)
Section 6
essentially stated that at the time of death of a male Hindu his interest in
the Mitakshara coparcenary property shall devolve upon survivorship of the
surviving members of the coparcenary and not in accordance to the Hindu
succession act 1956.
This
legislation revolved around ancient and archaic Hindu norms which didn’t
consider wife as a direct bloodline. Hence, the coparcenary property interest
before 2005 amendment specifically excluded any female from acquiring shares in
the interest of the property. The proviso clause, however stated that any
female relatives of the male dying intestate may devolve property through
testamentary or intestate succession and not by survivorship.
The
property devolved firstly upon the 12 preferential is mentioned in class one of
the schedule of the act, feeling such as upon second, third and fourth class of
years in that order as laid down in section 8 and nine of the Hindu succession
act 1956.
The 12
preferential heirs mentioned in class one of the act are as follows :-
1.
Son
2.
Daughter
3.
Widow
4.
Mother
5.
Son of a predeceased son
6.
Daughter of a predeceased son
7.
Son of a predeceased daughter
8.
Daughter of a predeceased daughter
9.
Son of a predeceased son of a predeceased son
10. Daughter of
a predeceased son of a predeceased son
11. Widow of a
predeceased son
12. Widow of a
predeceased son of a predeceased son
This
section must be read with section 8 and section 30 of the Hindu succession act
1956.
Section
8 deals with general rules of succession in case of male dying intestate. This
order of succession is based upon the doctrine of propinquity[2]
or nearness of blood. Therefore the property of the mail dying intestate shall
devolve upon the following in this specific order.
1.
Heirs specified in Class 1 under the Schedule.
2.
Heirs mentioned in Class 2 of the Schedule.
3.
Heirs who are Agnates of the Deceased.
4.
Heirs who are Cognates of the Deceased.
Section 30 on the other hand deals with testamentary disposition of a
male Hindu. It lays down the competency of a male Hindu to dispose his interest
in the coparcenary property.
2005 AMENDMENT AND ITS EFFECTS :-
The old law
did not fulfil the desired ends and remained hardly acceptable to a dynamic
Hindu society of this contemporary era. The Hindu Succession (Amendment) Act,
2005 came into force on 9th September 2005. The main purpose of the
act was to remove the Gender-Bias by substituting Section-6 with a wider and
feminist law.
The main
changes brought about by this act are mentioned as follows:-
1.
A female Hindu becomes the Coparcenary by birth
2.
She has the same rights in the coparcenary property as
that of a son
3.
She is subject to the same liabilities in the
coparcenary property as that of a son[3].
4.
She has the capacity to dispose this property by a
testamentary declaration
In this
way, a comprehensive and consequential change was brought about in the concept
of devolution of interest in Mitakshara coparcenary property.
After the
commencement of the Act, four more entries were added to Class one Heirs
mentioned as follows:-
1.
Daughter of predeceased daughter of predeceased son
2.
Daughter of predeceased son of predeceased daughter
3.
Son of predeceased daughter of predeceased daughter
4.
Daughter of predeceased daughter a predeceased
daughter
INTRODUCTION TO THE CASE
The 2005
amendment was added to align with the constitutional belief of gender equality
in the legal provisions.To meet the needs of a progressive society and to
remove inequalities in respect to the rights of property in Hindus, the Supreme
Court of India had passed a landmark judgement in Vineeta Sharma v. Rakesh Sharma[4],
dealing with the retrospective effect of section 6 of the Hindu
Succession (Amendment) Act 2005.
ISSUES
RAISED
1.
Whether the 2005 amendment had deemed the daughter
with the same rights and liabilities in a Mitakshara Coparcenary property as
the son irrespective of father being alive before the judgement?
2.
Whether the Hindu Succession (Amendment) Act 2005 was
prospective, retrospective or retroactive in nature?
RELEVANT PRECEEDENTS
The
daughter claimed the property of her father when the father had died prior to
the commencement of the Hindu Succession (Amendment) Act, 2005. The primary
question was whether the ancestral and the self-acquired property of Mitakshara laws are applied
retrospectively or not. Supreme Court through a divisional bench held that the
provisions have a prospective effect and the coparcenary rights will be
conferred to a living daughter of a living coparcener, which meant that both
father and daughter had to be alive on 9 November 2005.
This case
contradicted the Phulavati case. In this case a Hindu mail died intestate. He
had two sons two daughters and one widow. The property was equally divided
among the five with 1/5th share each in accordance with the Hindu
Succession (Amendment) Act, 2005. The landmark judgement of Vineeta Sharma Case
was essentially put up with to solve the contradictory interpretations of
section 6 under the HSA.
ARGUMENTS ADVANCED
Four
Advocates including the Solicitor General of India presented their respective
arguments in this landmark judgement and understanding each one’s point of view
is necessary to understand the entire scope of the judgement.
1. Solicitor
General of India
The
statute doesn’t explicitly mention the existence of living to coparcener for
the devolution of interest given to his or her son or daughter. The amendment
of 2005 is retroactive in nature and the explanation given in section 6(5) is directory in nature As far is the proviso
clause is concerned, before the partition of 20 December 2004 the conferment of
rights of daughter did not disturb her rights as well as her liabilities.
2.
Mr.
R. Venkataramani
There
existed no clash of opinions in the case of Phulavati and the Danamma. In both
the cases the provisions of section 6 is to be interpreted as prospective in
nature.
Birth
of a coparcener, son or daughter before 2005 is an irrelevant factor because
the 2005 amendment is prospective in nature. Any family settlement or oral
partition is to be settled and not intended to be reopened by section 6.
Finally
a daughter can get the devolution of interest of a living coparcener only
3.
Mr.
V.V.S. Rao
The
daughter born before or after 2005 amendment is still a coparcener in the
Mitakshara coparcenary property laws in Hindus. The intention of the
legislature was not to confer daughter with the devolution of interest of
coparcenary property in a retrospective manner. The beneficiary statute
provides that the daughter will become the coparcener on and from the
commencement of the act.
Any
past transactions of partition, disposition, alienation whether oral or written
is irrelevant and there must exist a living coparcener who will give his or her
right of property to the daughter
4.
Mr.
Amit Pai
The
Phulavati Judgement laid down the correct interpretation of the Legal
provisions.
Section
6 of the act includes all daughters whether or not the father is alive or not
at the time of devolution of property.
JUDGEMENT
The Supreme Court of India overruled the judgement of
Phulavati case and held that section 6 of the Hindu succession act after the
2005 amendment is retroactive in nature. It is neither prospective nor
retrospective in nature Based on past events including the birth of the
daughter, equal rights of coparcenary will be given to the daughter on and from
ninth of November 2005 as this effect is retroactive in nature.
Whether or
not the father is alive on and after 9th of November, 2005, equal
rights and liabilities will be conferred upon the son and daughter for
devolution of interest of coparcenary property.
CONCLUSION
The
Parliament had passed the act for social welfare of Hindus and to ensure that
the ancestral and self-acquired property is devolved upon through succession
and survivorship without any discrimination or coercion. This landmark
judgement, the Supreme Court interpreted section 6 of the Hindu succession act
in its true spirit to end any gender injustice in provisions of Hindu
succession laws in India.
This
judgement also successfully cleared any confusion in section 6 of the Hindu
succession act which was created through prior precedence by giving a clear
judgement in this instant case