Interpretation of Section 6 of Hindu Succession Act, 1956

Interpretation of Section 6 of the Hindu Succession Act, 1956.

Article explains the latest judgment of the Hon’ble Supreme Court of India, delivered on 11-8-2020, in the case of ‘Vineeta Sharma Vs. Rakesh Sharma’, on the interpretation of Section 6 of the Hindu Succession Act, as amended by the Amendment Act of 2005.

Introduction

On 11^th August 2020, Three Judges Bench of the Hon’ble Supreme Court of India, in Civil Appeal No. 32601 of 2018 i.e. in the case of Vineeta Sharma Vs. Rakesh Sharma & Ors., have delivered one important judgment, on the interpretation of Section 6 of the Hindu Succession Act, as amended by the Amendment Act of 2005. That Bench of the Supreme Court includes Justice Arun Mishra, Justice S. Abdul Nazeer and Justice M.R. Shah.

That on the background of said judgment, as a student of law, there is need, to do revised study of the subject. Hence, with reference to said judgment, this Article-paper is hereby published.

The question, concerning the interpretation of section 6 of the Hindu Succession Act, 1956, as amended by Hindu Succession (Amendment) Act, 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. Vs. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. Vs. Amar & Ors., (2018) 3 SCC 343.

A Division-Bench of this Court, in Prakash Vs. Phulavati, held that, Section 6 is not retrospective in operation, and it applies, when both, coparcener and his daughter, were alive on the date of commencement of Amendment Act, i.e. on 9^th September 2005. Accordingly, the provisions of Section 6 have been held to be prospective.

However, in Danamma Vs. Amar , this Court held that, the amended provisions of Section 6 confer full rights upon the daughter coparcener. Any coparcener, including a daughter, can claim a partition in the coparcenary property. In this case, Gurunalingappa, who was a father-coparcener of claimant daughter, died in the year 2001, leaving behind two daughters, two sons, and a widow. Thus, daughter-coparcener’s father was not alive, when the substituted provision of section 6 came into force. Accordingly, the daughters, sons and the widow were given 1/5th share a piece.

On this background, it was observed by the Supreme Court, in present case that, when a daughter, who is claiming & demanding a share in the coparcenary, is alive on 9^th September 2005, then there is no difficulty of interpretation, irrespective of the fact, whether a coparcener has died before the commencement of the Amendment Act. The coparcener and the daughter don’t need to be alive, as on the date of the amendment.

If it is to be interpreted that, coparcener and daughter both should be alive, then it will defeat the very purpose and objective of the amended provisions. Earlier, the provisions of Hindu law treated a son as a coparcener by birth; now, daughters are given the same rights since birth. However, in case the partition has been effected by metes and bounds and is adequately proved, then the daughter of coparcenary cannot seek partition of already divided property.

Hindu Law is Progressive

Besides the various sources, custom, equity, justice and conscience have also played a pivotal role in the development of Hindu law, which prevailed. When the law was silent on certain aspects, Judicial decisions also acted as a source of law. Hindu law was not static but always progressive. Slowly necessity was felt for the codification of Hindu law.

In particular, women’s rights were taken care of, and attempts were made to remove the anomalies and unscrupulous practices. Necessity was also felt after the independence, given the constitutional imperatives to bring about equality of status, the codified law has been amended from time to time.

The latest attempt has been made by way of amending the Hindu Succession Act, concerning rights of daughter to be a coparcener in Mitakshara coparcenary, and has been given the rights equal to that of a son.

Joint Hindu Family and Coparcenary

A joint Hindu family is a larger body than a Hindu coparcenary. A joint Hindu family consists of all persons, lineally descended from a common ancestor, and include their wives and unmarried daughters. They are bound together by the fundamental principle of ‘sapindaship’ or family relationship, which is the essential feature of the institution.

Hindu coparcenary is a much narrower body. It consists of propositus i.e. common ancestor and his lineal male descendants up to three degrees.

Before 2005, it included only those persons like sons, grandsons and great-grandsons, who are the holders of joint property. The coparcenary consists of only those persons, who have taken, by birth, an interest in the property of the holder. The reason, why coparcenership is so limited, is to be found in the tenet of the Hindu religion that, only male descendants, up to three degrees, can offer spiritual ministration to an ancestor. Hence, only males can be coparceners. Coparcenary is the creation of law. Only a coparcener has a right to demand partition. Coparcener heirs get right by birth.

However now, by substituted section 6, with effect from 9^th September 2005, daughters are also recognised as coparceners in their rights, by birth in the family like a son.

Undivided Interest in Coparcenary Property

Coparcenary property is the one, which is inherited by a Hindu from his father, grandfather, or great grandfather. Property inherited from others is held in his individual rights, and therefore it cannot be treated as forming part of the coparcenary. The property in coparcenary is held as joint owners. The essence of a coparcenary, under the Mitakshara law, is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family, governed by the Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property that, he, that particular member, has a definite share, one-third or one-fourth. His interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener, in coparcenary property, is ‘undivided coparcenary interest’. The rights of each coparcener, until a partition takes place, consist in a common possession and common enjoyment of the coparcenary property.

In case coparcenary property comes to the hands of a ‘single person’ temporarily, it would be treated as his property, but once a son is born, then coparcenary would revive in terms of the Mitakshara law.

In Rohit Chauhan Vs. Surinder Singh & Ors., (2013) 9 SCC 419, the concept of coparcenary of sharing equally with others was discussed thus:

“We are further of the opinion that, so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property, and such a person shall be entitled to dispose of the coparcenary property, treating it to be his separate property. In such case, if a son is subsequently born, then the alienation, which is made by the father before the birth of his son, cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property, and the son would acquire interest in that and become a coparcener.”

Obstructed and Unobstructed Heritage

Mitakshara divides property into two classes, namely, ‘apratibandha daya’ or unobstructed heritage, and ‘sapratibandha daya’ or obstructed heritage.

Property, in which a person acquires an interest by birth, is called unobstructed heritage, because the accrual of the right, to it, is not obstructed by the existence of the owner. Thus, property inherited by a Hindu from his father, father’s father, or father’s father’s father, but not from his maternal grandfather, is unobstructed heritage as regards his own male issue, i.e., his son, grandson, and great-grandson. His male issues acquire an interest in it from the moment of their birth. Their right to it arises from the mere fact of their birth in the family, and they become coparceners with their paternal ancestor in such property immediately on their birth, and in such cases ancestral property is unobstructed heritage.

Property, the right to which accrues, not by birth, but on the death of the last owner without leaving a male issue, is called obstructed heritage. It is called obstructed, because the accrual of right, to it, is obstructed by the existence of the owner. Thus, property, which devolves on parents, brothers, nephews, uncles, etc., upon the death of the last owner, is obstructed heritage. These relations do not take a vested interest in the property by birth. Their right to it, arises for the first time, on the death of the owner. Until then, they have a mere ‘spes successionis’, or a bare chance of succession to the property, contingent upon their surviving the owner.

As per the Mitakshara Law, an unobstructed heritage devolves by survivorship; whereas obstructed heritage, by succession. Thus, it is apparent that, an unobstructed heritage takes place by birth, and the obstructed heritage takes place after the death of the owner.

Here, it is significant to note that, the right, which is recognised under Section 6, is the right by birth, and so, it is an unobstructed heritage. Hence, it is not the obstructed heritage, depending upon the owner’s death. Therefore, coparcener-father need not be alive on the 9^th September 2005, which is date of substitution of new Section 6, for the accrual of rights in favour of his son or daughter coparceners. It is not necessary, either for the formation of a coparcenary, or for becoming a coparcener that, a predecessor-coparcener should be alive. Here, death of predecessor-coparcener is not relevant, but the birth within degrees of coparcenary.

Survivorship is the mode of succession, not that of the formation of a coparcenary.

Original Section 6 before the 2005 Amendment

Exact provisions of Section 6 of the Act of 1956 before the substitution by the Amendment Act, 2005, is reproduced hereunder :

Earlier Sec. 6 : Devolution of interest in coparcenary property

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.

Explanation I.—For the purposes of this section, the interest, of a Hindu Mitakshara coparcener, shall be deemed to be the share, in the property, that would have been allotted to him, if a partition of the property had taken place, immediately before his death, irrespective of whether he was entitled to claim partition or not.

Statement of Objects & Reasons for 2005 Amendments

(1) “The Hindu Succession Act, 1956” has amended and codified the “law relating to intestate succession among Hindus”. The Act brought about changes in the law of succession among Hindus, and gave rights, which were till then unknown, in relation to women’s property. However, it does not interfere with the special rights (rule of survivorship) of those, who are members of Hindu Mitakshara coparcenary, except to provide rules for devolution of the interest of a deceased male, in certain cases. In the case of a testamentary disposition, this Act does not apply, and the interest of the deceased is governed by the “Indian Succession Act, 1925”.

(2) Earlier Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property, and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of system of the ‘Mitakashara coparcenary property’, without including the females in it, means that, the females cannot inherit in ancestral property, as their male counterparts do. The law, by excluding the daughter from participating in the coparcenary ownership, not only contributes to her discrimination on the ground of gender, but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution.

Having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law, giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

(3) It is proposed to remove the discrimination, as contained in (earlier) section 6 of the Hindu Succession Act, 1956, by giving equal rights to daughters in the ‘Hindu Mitakshara coparcenary property’ as the sons have.

Section 23 of the Act disentitles a female heir, to ask for partition, in respect of a dwelling house, wholly occupied by a joint family, until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section, so as to remove the disability on female heirs contained in that section.

(4) The above proposals are based on the recommendations of the ‘Law Commission of India’, as contained in its 174^th Report on “Property Rights of Women: Proposed Reform under the Hindu Law”.

(5) The Bill seeks to achieve the above objects. 16^th December, 2004.

New Section 6 as Amended in 2005

Exact substituted provision of section 6, by the Amendment Act, 2005, is extracted hereunder:

New Sec. 6 : Devolution of interest in coparcenary property.-

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 , in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-

(a) by birth, become a coparcener, in her own right, in the same manner as the son;

(b) have the same rights, in the coparcenary property, as she would have had, if she had been a son;

(c) be subject to the same liabilities, in respect of the said coparcenary property, as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that, nothing, contained in this sub- section, shall affect or invalidate any disposition or alienation, including any partition or testamentary disposition of property, which had taken place before the 20th day of December, 2004.

(2) Any property, to which a female Hindu becomes entitled, by virtue of sub- section (1), shall be held by her, with the incidents of coparcenary ownership, and shall be regarded, notwithstanding, anything contained in this Act, or any other law for the time being in force, as property, capable of being disposed of by her, by testamentary disposition.

(3) Where a Hindu dies, after the commencement of the Hindu Succession (Amendment) Act, 2005, (then) his interest, in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act, and not by survivorship, and the coparcenary property shall be deemed to have been divided, as if a partition had taken place, and,-

(a) the daughter is allotted the same share, as is allotted to a son;

(b) the share of the pre- deceased son or a pre- deceased daughter, as they would have got, had they been alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such pre- deceased daughter; and

(c) the share of the pre-deceased child of a pre- deceased son or of a pre- deceased daughter, as such child would have got, had he or she been alive at the time of the partition, shall be allotted to the child of such pre- deceased child of the pre- deceased son or a predeceased daughter, as the case may be.

Explanation.—For the purposes of this section, the interest, of a Hindu Mitakshara coparcener, shall be deemed to be the share, in the property, that would have been allotted to him, if a partition of the property had taken place, immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great- grandson, for the recovery of any debt, due from his father, grandfather or great- grandfather, solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great- grandson, to discharge any such debt:

Provided that, in the case of any debt, contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 , nothing contained in this sub- section shall affect–

(a) the right of any creditor, to proceed against the son, grandson or great- grandson, as the case may be; or

(b) any alienation, made in respect of, or in satisfaction of, any such debt, and any such right or alienation shall be enforceable, under the rule of pious obligation, in the same manner and to the same extent, as it would have been enforceable, as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation.- For the purposes of clause (a), the expression ‘son’, ‘grandson’ or ‘great- grandson’ shall be deemed to refer to the son, grandson or great- grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005 .

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation.- For the purposes of this section, ‘partition’ means any partition, made by execution of a deed of partition, duly registered under the Registration Act, 1908 (16 of 1908 ), or partition effected by a decree of a court.

Retroactive Application of Amended Section 6

Though the rights, under new substituted Section 6 can be claimed with effect from 9^th September 2005, its provisions are of retroactive application; as they confer benefits, which are based on the antecedent event.

The ‘prospective statute’ operates from the date of its enactment conferring new rights. The ‘retrospective statute’ operates backward, and it takes away or impairs ‘vested rights’, which were acquired under then existing laws. And ‘retroactive statute’ is the one, which does not operate retrospectively. It operates in future. But, its operation is based upon the character or status, which arose earlier.

In substituted section 6, the expression “daughter of a living coparcener” has not been used. Right is given under section 6(1)(a) to the daughter by birth. However, declaration of those rights, which are based on the past event, i.e. of a birth, was made on 9^th September 2005.

Thus, under the amended Section 6, the right is conferred by virtue of birth and from the moment of birth that is an antecedent event.

However, a daughter, who is born before the amendments, can claim her rights, only with effect from the date of the amendment, i.e. 9^th September 2005, subject to saving of any past transaction, as provided in the Proviso clause of sub-section (1) read with sub-section (5) of amended section 6.

Relevance of the Day : 20^th December 2004

The ‘Proviso’ to sub-section (1) of new section 6 contains a Non-obstante clause, providing that, nothing contained in the sub-section (1) shall affect or invalidate any disposition or alienation, including any partition or testamentary disposition of the property, which had taken place before 20^th December 2004, the date on which the Bill was presented in the Rajya Sabha.

When we read the provisions conjointly, when right is given to the daughter of a coparcener, in the same manner as a son, by birth, it becomes necessary, to save the dispositions or alienations, including any partition or testamentary succession, which had been taken place before 20-12-2004. A daughter can assert the right on and from 9-9-2005, and the Proviso saves from invalidation above transactions.

The date of commencement, of the Hindu Succession (Amendment) Act of 2005, is the 9^th September 2005. Proviso clause, to Sub-section (1) of substituted section 6, says that, nothing contained in said sub-section shall affect or invalidate any ‘testamentary disposition’ of property, which had taken place before the 20^th December 2004.

A coparcener is entitled to dispose of his ‘undivided share’ in the coparcenary property by making a ‘Will’. But here, it is to be noted that, the ‘Will’ takes effect only upon the death of a testator.

Therefore, only in such cases, where the testator dies before the 20 December 2004, testamentary disposition of his undivided interest would remain unaffected by the substituted provisions.

However, if suppose, any such coparcener, who executes his last Will, although before the 20 December 2004, but who dies after said date, then in that case, testamentary disposition of his interest shall remain subject to substituted provisions. Meaning thereby that, while calculating or ascertaining his ‘undivided interest’, it is also to be kept in mind that, now his daughters are also the coparceners.

Here it is to be noted that, devolution of ‘undivided interest’, by way of inheritance i.e. in absence of any Will, of any such coparcener, who dies before the 9^th September 2005, shall be as per the earlier section 6 of Act of 1956.

However, before the 9^th September 2005, whether ‘undivided interest’ of any ‘deceased coparcener’ would devolve, either as per the rule of survivorship, or by way of succession, including testamentary or intestate succession, it all depends upon the fact that, whether or not, he had left behind, any Class I female relative, or any Class I male relative claiming through such female relative.

It is so because, in case of a death of a coparcener before the 9^th September 2005, we have to consider the provisions of earlier section 6, especially the Proviso clause there-under.

Abrogation of Rule of Survivorship

With respect to a Hindu, who dies after the commencement of the Amendment Act, 2005, as provided in section 6(3), his interest shall pass by testamentary or intestate intestate succession and not by survivorship; and there is a deemed partition of the coparcenary property, in order to ascertain the shares, which would have been allotted to his heirs, had there been a partition. The daughter is to be allotted the same share as a son. Even surviving child of any pre-deceased daughter or son is given a share. And in case, if such child has also died, then surviving child of such pre-deceased child of a pre-deceased son or daughter would be allotted the same share, had they been alive at the time of deemed partition.

The Explanation clause to sub-section (3) of section 6 is the same, as the Explanation to Section 6 originally enacted.

Rule of survivorship, which was a mode of devolution of interest of deceased coparcener, has been abrogated, with effect from 9^th September 2005, by substituted section 6(3).

Fiction of Notional Partition

As per the Mitakshara law, no coparcener has any fixed share. It keeps on fluctuating by birth or by death. This principle of administration of Mitakshara coparcenary is carried forward in statutory provisions of earlier Section 6.

Explanation 1 to earlier Section 6 of the Act provides a mechanism, under which undivided interest of a deceased coparcener can be ascertained. It means, for the purposes of finding out undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death, and the same shall devolve upon his heirs by succession.

The fiction of notional partition was meant for an aforesaid specific purpose. It was not to bring about the real partition. It did not affect the severance of interest of other surviving coparceners, or of other such family-members, who are entitled to a share upon actual partition. Thus, legal fiction is only for a purpose it serves, and it cannot be extended beyond.

Therefore, even if, a deceased coparcener had left behind, female heir of Class I, or a male heir claiming such female heir, there is no disruption of coparcenary by statutory fiction of partition. Such fiction is only for ascertaining the share of a deceased coparcener, which would be allotted to his heirs, as and when actual partition takes place. The deemed fiction of partition is for that limited purpose.

Hence, substituted new Section 6 presupposes the existence of coparcenary, wherein there is enlargement of daughter’s rights.

In case of Man Singh Vs. Ram Kala, AIR 2011 SC 1542, the question, of devolution of interest in coparcenary property, arose on the death of male Hindu, who left behind wife, son and three daughters.

It was observed that, until the disruption of coparcenary by actual partition, the definite share cannot be claimed with certainty. The question in said case is, when the partition has not taken place, whether the statutory fiction, which was contained in the Proviso to earlier Section 6, with respect to the determination of shares of a deceased coparcener, and its devolution there-under, would disrupt the coparcenary. The answer is in the negative.

Partition contemplated by amended Section 6(5)

The Proviso to section 6(1) and section 6(5) saves any partition, which was effected before 20^th December 2004. However, Explanation-clause to section 6(5) recognises only such partitions, which were effected, either by execution of partition-deed duly registered under the Registration Act, or by a decree of Court. Thus, other forms of partition have not been recognised under the definition of ‘partition’ in said Explanation.

The intention, behind inserting such provision, was to avoid any sham or bogus transactions, which could be made, in order to defeat the rights of coparcener, conferred upon daughters by the Amendment Act, 2005. The intendment of amended Section 6 is to ensure that, daughters are not deprived of their rights, by male coparceners, thereby setting up of any frivolous defence of any previous oral partition, or by way of any unregistered memorandum of such oral partition. Such recorded memorandum of oral partition, which is unregistered and without having support of any contemporaneous public document, can be manufactured at any point of time.

It is also settled law that, mere ceasing of commonality is not by itself conclusive proof of partition. Thus, merely by the reason that, the family-members were separated in food and residence, only for their convenience, due to their job-employment or otherwise, it does not show separation for the purpose of partition.

However, under the law that prevailed earlier, an oral partition was recognised. But there is heavy burden to prove such oral partition on those, who asserts it. There are several acts or facts, which though not itself conclusive proof of partition, may lead to that conclusion, in conjunction with various other facts, which may include (1) separate occupation of portions of property, (2) appropriation of income of joint property, (3) fragmentation of shares in the land revenue records, supported by contemporaneous public documents, mutual transactions, etc., as observed in cases of Bhagwani Vs. Mohan Singh, AIR 1925 PC 132 and Digambar Patil Vs. Devram, AIR 1995 SC 1728.

Maharashtra Amendment of 1994

For the purpose of amending earlier Section 6, the Maharashtra State inserted Chapter 2-A, including three sections i.e. sections 29-A, 29-B and 29-C, in the Hindu Succession Act of 1956. Said Maharashtra amendment came into force with effect from 22^nd June 1994.

Accordingly, in the Maharashtra, had (if) there been actual partition took place between 22 June 1994 to 20 December 2004, and which was valid as per the prevailing law, then any such daughter of coparcener, who did not got status of coparcener, because of her marriage before 22 June 1994, (she) was not entitled to any share in such partition.

However, if no such partition took place between 22 June 1994 to 20 December 2004, meaning thereby on 20^th December 2004 the coparcenary was in existence, then in such cases, on or after the 20 December 2004, if there is a partition, then any such daughter, who was otherwise disentitled because of her marriage before the 22 June 1994, is still now entitled, as being a coparcener, to claim share in such partition, by virtue of the Central Amendment of 2005.

It is also to be noted that, in the Maharashtra, any such daughter, who’s status was ‘unmarried daughter’ on the 22 June 1994, or any such daughter, who marries after said date, was entitled, by virtue of the State Amendment, to claim direct share in the partition of coparcenary property belonging to her father’s family, provided that, there had not been actual partition till the date of her claim.

Partition-Suit : When Partition said to be Complete

In the case of S. Sai Reddy Vs. Narayana Reddy & Ors. (1991) 3 SCC 647, a suit for partition was filed. A preliminary decree, determining the shares, was passed. The final decree was yet to be passed. It was observed that, unless & until the final decree is passed, and the allottees of the shares are put in possession of the respective property, the partition is not complete.

A preliminary decree does not bring about the final partition. Pending the final decree, the shares themselves are liable to be varied on account of the intervening events, and the preliminary decree does not bring about any irreversible situation.

The crucial question, however, is, as to when any partition can be said to have been effected, for the purposes of the amended provision.

When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds.

Hence the partition, which the legislature has in mind in the present case, is undoubtedly a partition, which is completed in all respects, and which has brought about an irreversible situation. Therefore, unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act.

In the case of Prema Vs. Nanje Gowda, AIR 2011 SC 2077, insertion of Section 6-A, by the amendments made by the Karnataka state, was considered. In this case, a preliminary decree was passed. However, Amendment in the Act was made during the final decree proceedings.

The Court observed:

“We may add that, by virtue of the preliminary decree, passed by the trial court, which was confirmed by the lower appellate Court and the High Court, the issues decided therein will be deemed to have become final.

But, as the partition-suit is required to be decided in stages, the same can be regarded as fully & completely decided, only when the final decree is passed. If, in the interregnum, any party to the partition suit dies, then his/her share is required to be allotted to the surviving parties, and this can be done in the final decree proceedings. Likewise, if the law, governing the parties, is amended before the conclusion of the final decree proceedings, the party, benefited by such amendment, can make a request to the Court, to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the Court, seized with the final decree proceedings, is not only entitled, but is duty-bound to take notice of such change and pass appropriate order…”

Final Verdict of the Supreme Court –

Accordingly, in this present case of Vineeta Sharma Vs. Rakesh Sharma, the Three Judges Bench of Hon’ble Supreme Court has answered 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 liabilities.

(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 earlier 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 1056, or by 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 such 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, then it may be accepted. A plea of partition merely based on oral evidence alone cannot be accepted and to be rejected out-rightly.

Thus, in view of the aforesaid discussion and answer, in this present case of Vineeta Sharma Vs. Rakesh Sharma & Ors., the Hon’ble Supreme Court has overruled the views to the contrary, which were expressed in cases of Prakash Vs. Phulavati and Mangammal Vs. T.B. Raju & Ors.

Similarly, the opinion, expressed in Danamma @ Suman Surpur & Anr. Vs. Amar, is partly overruled to the extent, it is contrary to this present decision.

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Article By Adv. Hitendra V. Shah, Pune – E-mail : hitendrashah.[email protected] – Phone : 9822116407