Listen to this articleVINEETA SHARMA
vs. RAKESH SHARMA & ORS.
CIVIL APPEAL NO.
DIARY NO.32601 OF 2018
https://main.sci.gov.in/supremecourt/2018/32601/32601_2018_33_1501_23387_Judgement_11-Aug-2020.pdf
Bench: Arun Mishra, S. Abdul Nazeer, M.R. Shah JJ.
Facts:
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)?
Arguments:
|
Solicitor General |
|
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. |
|
Amicus Curiae(s) |
|
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. |
Held:
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.
1. Can children of daughter become coparcener?
:: Children of daughter never been member of maternal grandfather’s HUF.
2. Confusion on overrulings on Hindu Succession Act-2005
=====================================================
2015: Prakash Vs Phulavati
Daughter should be alive and her father should also be alive on the date of the amendment(9-9-2005) irrespective of when such daughters are born.
2018: Danamma Vs Amar
Daughters of a coparcener become coparceners by virtue of birth.
Born prior to 1956 also eligible. Father died before 2005 also eligible.
2018: Mangamal vs T.B.Raju
Upheld Prakash Vs Phulavati
2020: Vineeta Sharma vs Rakesh Sharma
Daughter, whether born before 2005 or after that, is considered a coparcener.
Father died before 2005 also eligible. Daughter shoulde be alive on 2005.
“We overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors.
Danamma Vs Amar is partly overruled to the extent it is contrary to this decision.”
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Which part of Danamma Vs Amar has been overruled?