(2020) 9 SCC 1
11 August 2020
Civil Appeal No. 32601 of 2018
Bench: Arun Mishra, S. Abdul Nazeer, M.R. Shah J.J.
Section 6 of Hindu Succession (Amendment) Act, 2005
The case is of joint Hindu family and coparcenary rights of the daughters. Section 6 of the Hindu Succession Act after the amendment of 2005 (enacted on 9th Nov 2005) conferred full coparcenary rights to the daughters as same as that of sons. But, section 6(1)(a)) of the Act conferred coparcenary rights on daughters by birth. Questions aroused that will a daughter born before 2005 will get the coparcenary rights or not, whether the father and daughter both need to be alive on 9 November 2005 to effectuate the provisions of the amended section of the Act or not.
These questions were answered in the case Prakash v. Phulavati. A division bench of the Hon’ble Supreme Court of India in thus case, held that the Act of 2005 is prospective in nature and that the privileges conferred on daughters under Section 6 of the Act of 2005 are for the living daughter of a living coparcener, with the coparcener having to be alive as of 9th September 2005, in order for the daughter to assert ownership of the coparcenary property. In this case, the coparcener died before the 2005 amendment, so the daughter was not entitled to a share of the coparcenary property because she was not the daughter of a living coparcener.
While in the case Supreme Court of India did not expressly address the notion of a living daughter of a living coparcener, in a subsequent judgment of Danamma v. Amar. The coparcener Gurunalingapa (father) died in the year 2001 leaving behind him two daughters, two sons, and a widow. Coparcener’s heir was not alive when the amended provision of section 6 of the Act came into force. Even though the coparcener had died before the amendment of 2005, the Court held that daughters have equal rights in the coparcenary property as of sons. The appeal of Vineeta Sharma v. Rakesh Sharma posed similar question before the Hon’ble Supreme Court, and the matter was referred to a larger three judge bench of the Hon’ble Supreme Court based on the contradictory opinions expressed by the Hon’ble Supreme Court in the above mentioned two decisions of Phulavati case and Danamma. The judgement of Vineeta Sharma was not in alignment with the other abovementioned judgments therefore a contradiction in law arose.
Both the earlier judgements were passed by a divisional bench constituting of two judges. Therefore, in the Vineeta sharma case a three judge constitutional bench of Supreme Court was constituted to resolve the issues and provide the correct interpretation of section 6 of the amended Hindu Succession Act, 2005.
Issue before the Court
- Whether father coparcener should still be alive on November 9, 2005 (when the amendment was brought)?
- Whether Section 6 of the Act of 2005 modified, prospective, retrospective, or retroactive?
Supreme Court’s Bench in this case referred to various principles of Hindu law, both codified & customary such as Coparcenary & Joint Hindu Family, unobstructed & obstructed heritage as well as a catena of Judgments. The Court after examining these things observed joint Hindu family property as unobstructed heritage. In this kind of property the right of partition is absolute & it is given to a person by virtue of his/her birth. However, a separate property is obstructed heritage in which the right to ownership & partition is obstructed by death of the owner of separate property. In obstructed heritage right is not by the birth but it depends upon the death of original owner. Supreme Court by observing these situations held as the right to partition is by birth of daughter (unobstructed heritage) it is immaterial if father coparcener was alive or dead on the date when the amendment was enacted. Therefore, the Court overruled the judgment of Phulavati v. Prakash & said that the coparcenary rights passes from the father to his living daughter not from a “living coparcener to living daughter”.
By overruling the Phulavati & Danamma Judgment the Court ruled that the effect of the provisions of Section 6 of the Act are neither prospective nor they are retrospective in nature although, it is retroactive in nature. Hon’ble Supreme Court explained the principles of prospective, retrospective & retroactive by saying that application of retroactive law is dependent on feature or occurrence that occurred in part or requisites that were drawn from a past event. Court stated that Section 6(1)(a) of the Act incorporates the definition of Mitakshara coparcenary’s unobstructed heritage (conferred by birth), since the right is conferred by birth it is an antecedent case, the provision apply on & from the date of enactment of the Amendment Act thus, making it retroactive. Court added that the clause of 4 of Section 6 clarifies that Section 6 provisions are not retrospective. This approach by the Court cleared the lacuna in law.
The verdict of Vineeta Sharma has cleared the uncertainty about the law & made it clear that the amendment of the Hindu Succession Act, granting equal right to inherit the ancestral property to daughters would have a retrospective effect. Court also perceived that gender cannot be the ground for denying anyone with their inheritance rights as it is a violation of Article 14 i.e. equality before law. This verdict has successfully resolved all the ambiguity that the Phulavati and Danamma case created.
This article is written by Ajay Kataria, from Dr. B.R. Ambedkar National Law University, Sonepat, Haryana.
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