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Manifestation Of Equality- Daughter’s Right In Ancestral Property

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Under the Hindu Mitakshara Law, ancestral property is passed on down the male line by survivorship – what we commonly refer to as the coparcenary system. Unique as it was, the minute a son was born in a family, he would become a coparcener in his own right, to the ancestral property of the family.

By Ardhendumauli Kumar Prasad

The position which continued from prior to the enactment of the Hindu Succession Act, 1956 [“the Act”] continued to prevail after its enactment, as Section 6 categorically protected the devolution by survivorship, and not in accordance with the provisions of the Act. The position of the daughter and the son was legislatively approved to be unequal, in respect of the ancestral property. This was recognised by Parliament in 2005, and was sought to be nullified by the enactment of the Hindu Succession (Amendment) Act, 2005 [“the Amendment”]. The Amendment sought to bring about a sea change in the coparcenary system, and recognised the “daughter of a coparcener” as a coparcener in her own right. However, the Amendment has been interpreted in various ways in the last 15 years, and has finally been set to rest by the latest judgment of the Apex Court in Vineeta Sharma v. Rakesh Sharma[1].

The issue of whether the Amendment was retrospective in nature or not immediately arose for consideration before various High Courts. For, the question that fell for consideration was what happened to those situations where the coparcener had died, but his daughter was alive. It was feared that those matters where partition has already taken place, would be re-opened. Thus being the case, conflicting views were bound to give rise to adjudication of the Supreme Court. Amongst the most striking judgments was that of the Karnataka High Court in Pushpalatha v. Padma[2]where the Division Bench painstakingly interpreted the Amendment, and found that it was declaratory of the right of the daughter, and hence retroactive. The Karnataka High Court categorically held that the Amendment Act, having completely replaced the provision of the Act, related back to the coming into force of the Principal Act, i.e. 17.07.1956. On the contrary, the Full Bench of the Bombay High Court in Badrinarayan Shankar Bhandari[3]held that the Amendment was prospective in nature, and that the intention could not be to unsettle all partitions that had already taken place, and that the Amendment Act did not relate back to the Principal Act.

That being the case, the Supreme Court sought to clear out some of the confusion in this regard. In Prakash[4]a Bench of two Hon’ble Judges of the Supreme Court noted that the Amendment was prospective in operation, and held:

23. Accordingly, we hold 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. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per law applicable prior to the said date will remain unaffected….

A couple of years later, in Danamma[5]held the Supreme Court held that the factum of birth of a daughter was enough to create a right of the daughter in the coparcenary, in the same manner as the son. The Court’s view in Danammawas at odds with the “living daughter of living coparcenary” rule laid down in Prakash, thereby requiring a larger bench to resolve the conflict. A bench of three Judges of the Supreme Court sought to reconsider and reconcile the conflict of views in Prakash and Danamma in Vineeta Sharma.

In Vineeta Sharma, the Court resolved the controversy by holding that only the right of the daughter as a coparcener, equal to that of a son, was declared by legislation. The Court further held that since the whole of Section 6 of the Principal Act had been replaced by virtue of the Amendment, the Amendment applied from the time the Principal Act had come into force, i.e. 17.07.1956. The Court further held that upon a plain reading of the Amendment, it was clear that the right of the daughter in the coparcenary was from her birth, and that it did not matter whether her father was living on the date of the Amendment. Addressing the fear of unsettling a lot that was settled over the years, the Court held that the Amendment itself had carved out the cut-off date for which the Amendment would not apply, and also clearly specified that it was not available to open those partitions that had already been closed. The Court also noted that notional partitions were only a means to arrive at the share of each person, and were not a partition in themselves. However, the Court held that oral partitions were not recognised, and would be amenable to challenge, unless such an oral partition could be backed up by revenue documents. Significantly, the Court overruled the judgment in Prakash.

The whole purpose of the Amendment was to undo the inequality festered for generations through the coparcenary system prevailing under the Mitakshara Law. The Statement of Objects and Reasons, while the Amendment Bill was introduced, read that the Amendment “proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have.” The judgment of the Supreme Court in Prakash was probably due to fears that havoc would be caused if the arrangements of the past would be unsettled. Perhaps, that led to the Court reading “living coparcener” in subsection (1) of Section 6 of the amended Section 6. This, however, would amount to judicial legislation, which, it is submitted, is only permissible if the result of reading the law leads to ambiguity, which was clearly not the case. Resultantly, the judgment of Prakash undid the very purpose for the amendment as set out in the Statement of Objects and Reasons. In other words, the reading of the 2005 Amendment in Prakash disentitled several daughters of their ancestral property. The reconsideration in Vineet Sharma was much needed, to not only give a full and complete meaning to the words of the Amendment, but also to give life to the purpose of the Amendment. The equality that was sought to be achieved for the daughters in their ancestral property, has now attained fruition.

The Author is Advocate on Record, Supreme Court of India.

[1] Judgment dated 11.08.2020 in Civil Appeal No. Diary No. 32601 of 2018, etc.

[2]ILS 2010 Kar 1484

[3]Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari, 2014 (5) CTC 353

[4]Prakash&Ors. vs. Phulavati&Ors, (2016) 2 SCC 36

[5]Danamma alias SumanSurpur&Anr.vs. Amar&Ors. (2018) 3 SCC 343

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