VINEETA SHARMA vs. RAKESH SHARMA & ORS.
CIVIL APPEAL NO. DIARY NO.32601 OF 2018
Bench: Arun Mishra, S. Abdul Nazeer, M.R. Shah JJ.
This three judge bench of Supreme Court was assigned the task to resolve the conflicting interpretation of the Section 6 of Hindu Succession Act 1956(hereinafter referred as HSA). Two division benches of Supreme Court in two different cases delivered conflicting judgements involving interpretations of Section 6 HSA. In the case of Prakash v. Phulwati (2016) 2 SCC 36, the apex court held that Section 6 is not retrospective and it applies only when both coparceners and his daughter were alive on the date of commencement of the Amendment Act. However, in the case of Danamma v. Amar (2018) 3 SCC 343, the court held that Section 6 confer full rights upon the daughter and can claim the property even if the father was not alive on the date of commencement of Amendment Act. The apex court was afforded the responsibility to clear such conflicting interpretation and to decide the application of Section with Vineeta Sharma case as lead case among various others. The bench also took up the question of meaning of ‘partition’ according to explanation to amended Section 6(5).
[Note: Initially, the right of daughters to status of coparcener, in same manner as son, was not given in HSA. It was only after the amendment of HSA vide Hindu Succession (Amendment) Act, 2005 that daughters were conferred status of coparcener in same manner as son]
Questions of Law:
(i) Whether the provisions of Amended Section 6 of HSA confer status of coparcener on the daughter born before or after amendment in the same manner as son?
(ii) Whether the daughter can claim coparcenery rights if her father died before the amendment?
(iii) Whether oral partition and unregistered partitions are part of the definition of ‘partition’ as provided in Explanation to amended Section 6(5)?
Regarding issue (i) and issue (ii), the Solicitor General argued that firstly, the amendment was brought to bring parity and the exclusion of daughter from coparcenery was discriminatory and led to oppression and negation of fundamental rights. The Amendment Act, 2005 is not retrospective but retroactive in operation since it enables the daughters to exercise their coparcenery rights on the commencement of the Amendment Act. Even though the right of a coparcener accrued to the daughter by birth, coparcenery is a birthright.
Regarding the issue (ii), it was argued that it can be inferred after analyzing the whole scheme of the Amendment Act that the requirement of registered partition deed is directory and not mandatory. Any coparcener relying upon family arrangement or oral partition must prove the same by leading proper documentary evidence.
1. Section 6(1)(a) declares a daughter to be a coparcener by birth. By the declaration, a daughter stands included in coparcenary. As the declaration is to the effect that the daughter is to become coparcener by birth, the question of prospectivity or retrospectivity will not arise— daughter, whether born before 2005 or after that, is considered a coparcener.
2. The Parliament intended to confer the status of a coparcener from the birth of a daughter. However, it was never intended to confer her rights in the coparcenary property retrospectively.
3. The decision in Prakash v. Phulavati cannot be said to be laying down the law correctly. The concept of living daughter of a living coparcener is adding to the text of provisions of section 6, whereas no word can be added or read into a statute by the Court. It can only repair errors or supply omissions. It is for the legislature to provide such a concept of a daughter of a living coparcener
4. In case partition has been affected by metes and bounds and is adequately proved, then the daughter of coparcenery cannot seek partition of already divided property.
The three judge bench of Supreme Court in view of the all the arguments presented and after analysis of whole jurisprudence regarding the Hindu Succession declared that, in reference to issue
(i) held that 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 a son with same rights and liabilities.
(ii) held that since the right in coparcenary is by birth, it is not necessary that father coparcener should be living on the date of amendment. The court rejected the view taken in Phulwati case and upheld the stand taken in the case of Damanna. The court referred to various historical principles and interpretation of the parliamentary committee’s report for the amendment.
(iii), the court held that in accordance with Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as statutory mode of partition recognized effected by a deed of partition registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, the court said that in exceptional cases where plea of oral partition is supported by public documents and partition is indicated in the same manner as if it had been affected by a decree of a court, it may be accepted. The court however maintained that an oral petition alone cannot be accepted and will be rejected outrightly.