Analysis of vineeta sharma’s judgment and how does it impact the succession laws in India
Updated: Sep 2, 2022
The Hindu Succession Act, 1956 was introduced to regulate the laws pertaining to the Hindus interstate succession and modify some of the standing position of succession laws among which one was to confer some of the rights to women to empower their position which was omitted earlier. However, this statutory provision laid down a special right for only male coparceners under §6 which conferred the right to inherit the ancestral property by birth and also the rule of succession among them is also allowed. Though these provisions are in toto discriminatory towards the women, it takes around five decades for the Parliament torealise and amend these prima facie discriminatory practices which were hampering the fundamental right to equality in concern with the daughters of the coparceners. So, in 2005, the Parliament finally passed the Hindu Succession (Amendment) Act 2005 which comes into effect from September 9, 2005, and it substitutes §6 of the earlier provision and put thedaughters as coparceners with the rights over the ancestral property form the birth. So, the daughter of a coparcener father is put at the same pedestal as a coparcener’s son. Here, it is also noteworthy that a proviso is also mentioned, which laid down that the said amendment will not invalidate any partition, alienation, or testamentary disposition before December 20, 2004.
II. Muddle regarding the implication of the new statutory provision
From the date when the 2005 amendment takes place, there appears to be some confusion among the masses and the courts regarding the proper implication of the provisions introduced under the new provision. Consequently, a case comes up in front of the SC in 2016; named Prakash& Others v. Phulavati Others where it was held that the Act of 2005 confers only on those daughters whose father coparceners are alive on September 9, 2005. In other words, if the father died before the enactment date of the Act of 2005 will not entitle the daughter to have a share on the ancestral property akin to the son.
Again, in 2018, in the case of DanammaSumanSurpur& Another v. Amar & Others, the same issue was raised; however, the court took a contradicting stance in comparison to that of the Phulavati case and held that daughters hold a position akin to that of a son in the ancestral (coparcenary) property no matter whether the coparcener had died before or after the 2005 amendment. Though this case contradicts the SC’s earlier position, it could not overrule it as both these cases have the same bench strength of two judges. So, there was a need for a higher bench decision that could clarify the confusion raised regarding the implication of §6 of the Act of 2005.
III. Vineeta Sharma Case – A Magic Bullet
In view of all the complications raised above, the SC in the case of Vineeta Sharma v. Rakesh Sharma & Others, formed a three-judge bench, which includes Justice Arun Mishra, Justice S. Abdul Nazeer, and Justice M R Shah, to lay down a settled position regarding the proper implication of the Act of 2005.
The issues in the case are as follow:
1.) Whether it is necessary for the implementation of §6 of the Act of 2005 thatthe coparcener must be alive at the date of enacting the amendment, i.e. September 9, 2005, to confer the coparcenary right to the daughters?
2.) What is the nature of §6 of the Act of 2005 – prospective, retroactive or retrospective?
A.) By Solicitor General on behalf of UOI (MrTushar Mehta)
The daughter under §6 of the Act of 2005 does not imply daughters of the living coparceners. So, it is not necessary that the coparcener of the daughter must be alive on the commencement date of the Act of 2005. The daughters’ conferment of rights did not affect the partition that took place before December 20, 2004. Moreover, §6(5) explanation regarding the registered partition deed requirement is not mandatory and merely directive. So, §6 of the Act of 2005has a retroactive effect.
B.) By Amicus Curiae (Mr. R. Venkataramani)
After the death of a coparcener, his interests collaborate with the surviving coparceners. So, if the coparcener father is no more alive at the time of enacting the Act of 2005, there will remain no scope for the daughter to succeed over any coparceners’ interests. Thus, a daughter can become a coparcener only when the coparcenary father remains alive while the enactment of the Act of 2005. Consequently, the nature of §6 is prospective. Moreover, it was not intended to reopen oral partition and family settlement by way of §6(1) and §6(5).
C.) By Amicus Curiae (Mr. V.V.S. Rao)
The reasoning behind the decision of the Phulavati case has already been upheld in the case of MangamalThulasi&Ars. v. T.B. Raju&Ors. It appears that the Parliament did not intend to put §6 of the Act of 2005 into retrospective effect. The phrase “on and from” used in §6(1) shows that the daughters can become coparceners from the date of commencement of the Act. Moreover, recognizing a daughter as a coparcener does not affect the past incidents of alienation, partition, disposition, either oral or written. So, it is vital to have a living coparcener from whom the daughter can inherit the interests to become a coparcener.
D.) By Advocate (MrAmitPai)
The ration laid down in the case of Phulavati cannot be regarded as a correct law. Also, §6 has a broad ambit, and it included all daughters irrespective of the fact that the coparcener father is alive or not on the date of the commencement of the 2005 amendment. The substitution of §6dates back to the origination of the 1956 unamended law.
After referring to various core concepts of the Hindu law like Coparcenary, Joint Hindu Family, and heritage (obstructed and unobstructed), the court has come up with the decision that it is not required for the coparcenary father to remain alive at the time of commencement of the Amendment act of 2005 for enabling a daughter to inherit the coparcenary property under the purview of §6. Moreover, since §6 confers the right from birth which makes it an unobstructed heritage the court further added that the uncodified Hindu Law of unobstructed heritage had taken concrete shape under §6(1)(a) and §6(1)(b), thereby, a coparcenary father did not need to be alive at the time of enactment of the 2005 Amendment. The court also held the decision in the case of Phulavati bad in law.
On the question of the nature of the §6 of the amendment act, the SC held that amendment §6 is not prospective or retrospective in nature, but it is retroactive. The law works based on the characteristics of a past event or requirement that had been drawn from the antecedent event. Moreover,§6(1)(a) carried the unobstructed heritage e of Mitakshara coparcenary by virtue of birth, and since the right is conferred by birth which is an antecedent event and the operations of provisions from the date of the Act of 2005, makes it retroactive. Also, §6(4) makes it evident that the nature of §6 is not retrospective.
IV.) Concluding Remarks
As a consequence of this case, the daughters now have equal rights in the coparcenary property. Although it is a well-appreciated verdict since this decision takes fifteen years to come, in the meantime, numerous women are without any coparcenary share who otherwise would have been entitled to claim share over coparcenary property under §6.
Nonetheless, after the reformative amendment of 2005; the Mitakshara coparcenary has been thinned mostly with almost nothing but a past vestige. With such significant alterations in the legal position, it is anticipated that it will probably bring in a much-needed change in the daughters’ social and economic status in society. However, it is also true that after this case of Vineeta Sharma, it can be said that the SC has paved its path by tackling the last hurdle and now the onus is on our subordinate courts to take the flag for bringing reformation at the very root level of our society.
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