Daughter has equal right in property, even if she’s born (or father died) before 9-9-2005 : SC (LB) (Read Order)

1. Summary

The Supreme Court held that daughters would have equal coparcenery rights in Hindu Undivided Family (HUF) properties even if the father had died prior to 9-9-2005 (at the time of the 2005 amendment to the Hindu Succession Act, 1956). In effect, the Court has ruled that the 2005 amendment would have retrospective effect in conferring rights on daughters who were alive at the time of the amendment, even if they were born prior to it.

2. Judgment in Vineeta Sharma v. Rakesh Sharma

A three-Judge Bench of Justices Arun Mishra, S Abdul Nazeer and MR Shah passed the verdict in appeals raising the issue of whether the amendment to the Act granting equal rights to daughters to inherit ancestral property would have retrospective effect.

Recognizing the importance of conferring equal rights on daughters and sons, Justice Mishra, while reading out the operative part of the judgment said,

“Daughters have to be given equal share of coparcenary rights in share of property like the son.”

2.1 The summarized judgment is :

  1. 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 son with same rights and liabilities.

  2. The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

  3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

  4. The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of ClassI as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son 120 in pending proceedings for final decree or in an appeal.

  5. In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

3. Issue adjudicated

The issue raised before the Supreme Court was whether with the passing of Hindu Succession (Amendment) Act, 2005, a daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. In other words, whether a daughter could be denied her share on the ground that she were born prior to the enactment of the Act and, therefore, cannot be treated as coparcener?

4. Conflicting Views

There were conflicting decisions of the Supreme Court in

Prakash v. Phulavati In Prakash v. Phulavati, the Supreme Court had held that “the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born.” In other words, if the coparcener (father) had passed away prior to September 9, 2005 (date on which the amendment came into effect), the living daughter of the coparcener would have no right to coparcenary property.
Danamma @ Suman Surpur v. Amar
In Danamma v. Amar, the Supreme Court had held that the 2005 amendment confers upon the daughter the status of a coparcener in her own right in the same manner as the son. Thus, it confers equal rights and liabilities in the coparcener properties to daughters and sons.

5. Reference to larger bench

In November 2018, a three-Judge Bench headed by Justice AK Sikri had noted that the matter needed to be heard by a three-Judge Bench. Today, the Court held that the appellant would have had coparcenery rights in the property even though her father had passed before the enactment of the amendment.