Coparcenary property of women and women being a Karta [Vineet Sharma v. Rakesh Sharma]
Author: Nardhana R Bhuvana
Vineet sharma v. Rakesh sharma Civil Appeal No. 32601 of 2018 11th August 2020
CORAM: A three-judge bench comprising of Justice Arun Mishra, Justice S. Abdul Nazeer and Justice M.R. Shah
It was being held in this case that an amendment is to be passed regarding the Mitakshara system of coparcener property. It was held that the right of the daughters under the amendment act is retroactive rather than being retrospective and daughters have full coparcener rights equally as much as sons have.
The case was being filed to fight against the treatment of inequality, women coparceners faced due to practising the Mitakshara system of property law. Under this system, the sons had coparcener rights and could not only inherit their father’s property but also acquire ancestral whereas the daughters can acquire a share only from their father’s property and not inherit ancestral property.
The questions of law raised were as to whether:
Should the father of the coparcener be living as on 9th November 2005?
If the daughter was born before 9th November 2005, then can she claim equal rights and liabilities in the coparcener as a son does?
Does Section 6 of the Hindu Succession Act, 1956, bring actual partition or disrupts the coparcener system?
Can a plea of oral partition after 20th December 2004 be accepted as the statutorily recognized mode of partition?
Section 6 of the Hindu Succession Act, 1956 was being analyzed and interpreted. Before 2005, when a male Hindu dies, after the commencement of this Act, having, at the time of his death, an interest in a Mitakshara coparcenary property, (then) his interest in the property shall devolve by survivorship, upon the surviving members of the coparcenary, and not in accordance with this Act: Provided that, if the deceased had left him surviving, a female relative, specified in Class I of the Schedule, or a male relative specified in that Class, who claims through such female relative, (then) the interest of the deceased, in the Mitakshara coparcenary property, shall devolve by testamentary or intestate succession, as the case may be, under this Act, and not by survivorship.
It was argued by the Solicitor General of India on behalf of the Union of India that the amendment act of 2005 is retroactive and not retrospective in nature and also the rights which got into force by partition before 20.12.2004 will not get disturbed just because equal rights are granted to the daughters and under Section 6, the daughter of a coparcener does not necessarily imply that she is the daughter of a living coparcener & the coparcener need not be alive as on the date of commencement of the Amended Act and under Section 6(5), the registered partition deed is a directory and not mandatory in nature.
On the other hand, the amicus curiae Senior Advocate, Mr R. Venkatramani argued that in Phulavati and Danamma cases, which are the precedents to this case and were held Section 6 is retrospective in nature so going by the doctrine of precedents, Section 6 is also retrospective in nature in this case too and also when the coparcener father dies his interest conjoins with that of the surviving coparcener and from whom the daughter will be able to succeed and so that is why the daughter can succeed only in interest of a living coparcener, and the incidence of birth of a coparcener before 2005 bears no consequences and oral partition is neither encouraged under Section6(1) nor Section 6(5) of the Act.
The amicus curiae and learned senior counsel, Mr V.V.S. Rao advanced arguments that a daughter born even before or after 2005 can be still be held to be a coparcener and under Section 6(1)(b) & (c) the rights are not conferred in anterior but in the coparcener posterior to the amendment. He also stated that it is not a must for a partition to be registered. If the oral partition is recognized, there should be proper evidentiary support along with it and the Parliament does have the intention to confer a daughter with rights in the coparcener property retrospectively and under Section 6(1), the daughter becomes a coparcener upon the commencement of the Act and if the daughter wants to inherit coparcener ship it can be done from a living coparcener.
The arguments that were advanced by Advocate Mr Amit Pai are that on the death of a coparcener a notional partition to determine the value of the shares cannot be considered as an absolute partition and same is not excluded by the proviso contained in Section 6 and it would not be correct to interpret this case exactly like how it was done in its precedent, the Phulavati case and also that Section 6 includes all daughters irrespective of whether the father is alive or not. The concept of the living daughter of a living coparcener is adding to the text of the provisions of Section 6.
The Court observed that before the commencement of the amendment, women were denied of interest in the coparcener properties and when a coparcener dies, the latter’s share on the property devolved on the surviving coparceners and the share of the deceased coparcener was to be ascertained by way of notional partition as on the date of death. So looking in that way women do not become coparceners, but they can inherit the property under the not amended provision.
The important element for a daughter to be granted the status of a coparcener is that there should be a coparcener on the date of coming into force of the Act in 2005. If the coparcenary is disrupted due to the acts or demise of the parties then the daughter cannot become a coparcener. It was also observed that in the right of share in the Mitakshara Coparcenary system, uncertainties exist in its underlying principles so a daughter getting treated equally like a son should not be upturned. The reason is not to resurrect the past, but to recognize an antecedent event for conferral of rights, prospectively.
The Court held that a daughter is also a coparcener by birth and it is not necessary that her father has to be alive as on 9.9.2005 and the amendment inserted under Section 6 is retroactive and not retrospective in nature.