Daughters Have Coparcenary Rights Even If Their Father Was Not Alive When Hindu Succession (Amendment) Act, 2005 Came Into Force: SC
In a most significant judgment with far reaching implications that will immensely benefit Hindu daughters, the Apex Court in Vineeta Sharma vs Rakesh Sharma & Ors. in Civil Appeal No. Diary No. 32601 of 2018 along with some other Special Leave Petition (SLP) just recently on August 11, 2020 has held in no uncertain terms that a daughter will have a share after the Hindu Succession (Amendment) Act, 2005, irrespective of whether her father was alive or not at the time of amendment. This is certainly a significant step towards the attainment of gender equality in our country for which the Apex Court Bench which decided this extremely landmark and laudable judgment deserves full credit! Till this laudable judgment was delivered we saw how despite several amendments to the Hindu Succession Act, 1956 there was none such provision that gave unconditional rights to women pertaining to her father’s property!
To start with, Justice Arun Mishra who authored this notable judgment for himself and Justice Abdul Nazeer and Justice MR Shah first and foremost set the ball rolling by observing in para 1 that, “The question concerning the interpretation of section 6 of the Hindu Succession Act, 1956 (in short, ‘the Act of 1956’) as amended by Hindu Succession (Amendment) Act, 2005 (in short, ‘the Act of 2005’) has been referred to a larger Bench in view of the conflicting verdicts rendered in two Division Bench judgments of this Court in Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343. In other connected matters, the question involved is similar; as such, they have also been referred for hearing along.”
Be it noted, it is then enunciated in para 116 that, “The intendment of amended Section 6 is to ensure that daughters are not deprived of their rights of obtaining share on becoming coparcener and claiming a partition of the coparcenary property by setting up the frivolous defence of oral partition and/or recorded in the unregistered memorandum of partition. The Court has to keep in mind the possibility that a plea of oral partition may be set up, fraudulently or in collusion, or based on unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognized under Section 6(5).”
What’s more, it is then observed in para 126 that, “The protection of rights of daughters as coparcener is envisaged in the substituted Section 6 of the Act of 1956 recognises the partition brought about by a decree of a court or effected by a registered instrument. The partition so effected before 20.12.2004 is saved.”
More significantly, the Bench then minces no words to state in suave, simple and straight language in para 127 while highlighting the dire need to protect daughter’s interests in property that, “A special definition of partition has been carved out in the explanation. The intendment of the provisions is not to jeopardize the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the objects of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.”
Most significantly, the Bench then cogently, convincingly and clearly holds in para 129 that, “Resultantly, we answer the reference as under:
(i) 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 abilities.
(ii) 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.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
(iv) 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 Class-I 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 in pending proceedings for final decree or in an appeal.
(v) 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 effected 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.”
No less significant is what is then stated finally in the last para 130 that, “We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months. In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision.”
No doubt, this latest, landmark and laudable judgment by a three Judge Bench of the Apex Court must be applauded, admired and appreciated in no uncertain terms as it places daughter on an equal footing with son in property matters which is a revolutionary move that will ensure that a daughter’s rights are not smothered under any circumstances by anyone as they like as per their own whims and fancies! But what is even more crucial is that society’s patriarchal mindset favouring only son must also change at the earliest and simultaneously the litigation processes in courts must be simplified, made inexpensive so that the poor women too can get their due and time-bound so that women does not suffer the ordeal of running from pillar to post first in lower courts, then in higher courts and then ultimately in the highest court! More awareness programme must be launched by Centre and State Governments to ensure that women are made aware of their legal rights as have been marked by the Apex Court in this landmark judgment! Only then can daughters gain immensely by this extremely laudable and landmark judgment which they must as no society can progress where women remains backwards and stands deprived of her basic legal rights!
By Sanjeev Sirohi