# VINEETA SHARMA v. RAKESH SHARMA & ORS

- **Citation:** [2020] 10 S.C.R. 135
- **Court:** Supreme Court of India
- **Decided:** 2020-08-11
- **Case number:** Civil Appeal No. Diary No.32601 of 2018
- **Bench:** Arun Mishra, S.Abdul Nazeer, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vineeta-sharma-v-rakesh-sharma-ors-34343
- **Pages:** 103

## Headnote

Hindu Succession Act, 1956 - s.6 as amended by Hindu
Succession (Amendment) Act, 2005 - Interpretation of - Held: The
provisions contained in substituted s.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 - The effect of the amendment is that a daughter is made
coparcener, with effect from the date of amendment i.e. 09.09.2005
and she can claim partition also, which is a necessary concomitant
of the coparcenary - s.6(1) recognises a Joint Hindu family
governed by Mitakshara law - The coparcenary must exist on
09.09.2005 to enable the daughter of a coparcener to enjoy rights
conferred on her - As the right is by birth and not by dint of
inheritance, it is irrelevant that a coparcener whose daughter is
conferred with the rights is alive or not - Conferral is not based on
death of a father or other Coparcener - In case living coparcener
dies after 09.09.2005, inheritance is not by survivorship but by
intestate or testamentary succession as provided in substituted
s.6(3).
Hindu Succession Act, 1956 - s.6 as amended by Hindu
Succession (Amendment) Act, 2005 and proviso to s.6 as originally
enacted - Held: The statutory fiction of partition created by proviso
to s.6 of the Hindu Succession Act, 1956 as originally enacted did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 s.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.
[2020] 10 S.C.R. 135
135
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Hindu Succession Act, 1956 - s.6 as amended by Hindu
Succession (Amendment) Act, 2005 - Explanation to s.6(5) - Plea
of oral partition - Held: In view of the rigor of provisions of
Explanation to s.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 fully 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.
Hindu Succession Act, 1956 - s.6 as amended by Hindu
Succession (Amendment) Act, 2005 - Enlargement of daughter's
rights - Held: Under the proviso to s.6 before the amendment made
in the year 2005 in case a coparcener died leaving behind female
relative of class-I heir or a male descendant claiming through such
class-I female heir, the daughter was one of them - s.6, as substituted,
presupposes the existence of coparcenary - It is only the case of
the enlargement of the rights of the daughters - The rights of other
relatives remain unaffected as prevailed in the proviso to s.6 as it
stood before amendment - The classic shastric Hindu Law excluded
the daughter from being coparcener, which injustice has now been
done away with by amending the provisions in consonance with the
spirit of the Constitution.
Hindu Succession Act, 1956 - s.6 as amended by Hindu
Succession (Amendment) Act, 2005 - Retroactive application - Held:
Though the rights can be claimed, w.e.f. 09.09.2005, the provisions
are of retroactive application; they confer benefits based on the
antecedent event, and the Mitakshara coparcenary law shall be
deemed to include a reference to a daughter as a coparcener - A
retroactive statute is the one that does not op

## Text

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VINEETA SHARMA
v.
RAKESH SHARMA & ORS.
(Civil Appeal No. Diary No.32601 of 2018)
AUGUST 11, 2020
[ARUN MISHRA, S.ABDUL NAZEER AND M. R. SHAH, JJ.]
Hindu Succession Act, 1956 - s.6 as amended by Hindu
Succession (Amendment) Act, 2005 - Interpretation of - Held: The
provisions contained in substituted s.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 - The effect of the amendment is that a daughter is made
coparcener, with effect from the date of amendment i.e. 09.09.2005
and she can claim partition also, which is a necessary concomitant
of the coparcenary - s.6(1) recognises a Joint Hindu family
governed by Mitakshara law - The coparcenary must exist on
09.09.2005 to enable the daughter of a coparcener to enjoy rights
conferred on her - As the right is by birth and not by dint of
inheritance, it is irrelevant that a coparcener whose daughter is
conferred with the rights is alive or not - Conferral is not based on
death of a father or other Coparcener - In case living coparcener
dies after 09.09.2005, inheritance is not by survivorship but by
intestate or testamentary succession as provided in substituted
s.6(3).
Hindu Succession Act, 1956 - s.6 as amended by Hindu
Succession (Amendment) Act, 2005 and proviso to s.6 as originally
enacted - Held: The statutory fiction of partition created by proviso
to s.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 s.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.
[2020] 10 S.C.R. 135
135
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Hindu Succession Act, 1956 - s.6 as amended by Hindu
Succession (Amendment) Act, 2005 - Explanation to s.6(5) - Plea
of oral partition - Held: In view of the rigor of provisions of
Explanation to s.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 fully 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.
Hindu Succession Act, 1956 - s.6 as amended by Hindu
Succession (Amendment) Act, 2005 - Enlargement of daughter's
rights - Held: Under the proviso to s.6 before the amendment made
in the year 2005 in case a coparcener died leaving behind female
relative of class-I heir or a male descendant claiming through such
class-I female heir, the daughter was one of them - s.6, as substituted,
presupposes the existence of coparcenary - It is only the case of
the enlargement of the rights of the daughters - The rights of other
relatives remain unaffected as prevailed in the proviso to s.6 as it
stood before amendment - The classic shastric Hindu Law excluded
the daughter from being coparcener, which injustice has now been
done away with by amending the provisions in consonance with the
spirit of the Constitution.
Hindu Succession Act, 1956 - s.6 as amended by Hindu
Succession (Amendment) Act, 2005 - Retroactive application - Held:
Though the rights can be claimed, w.e.f. 09.09.2005, the provisions
are of retroactive application; they confer benefits based on the
antecedent event, and the Mitakshara coparcenary law shall be
deemed to include a reference to a daughter as a coparcener - A
retroactive statute is the one that does not operate retrospectively -
It operates in futuro - However, its operation is based upon the
character or status that arose earlier - Characteristic or event which
happened in the past or requisites which had been drawn from
antecedent events - Under the amended s.6, since the right is given
by birth, that is an antecedent event, and the provisions operate
concerning claiming rights on and from the date of Amendment Act.
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Hindu Succession Act, 1956 - s.6 as amended by Hindu
Succession (Amendment) Act, 2005 - Obstructed and unobstructed
heritage - Unobstructed heritage takes place by birth, and the
obstructed heritage takes place after the death of the owner - It is
significant to note that u/s. 6 by birth, right is given that is called
unobstructed heritage - It is not the obstructed heritage depending
upon the owner's death - Thus, coparcener father need not be alive
on 09.09.2005, date of substitution of provisions of s.6.
Answering the reference, the Court
HELD: 1. The amended provisions of section 6(1) provide
that on and from the commencement of the Amendment Act, the
daughter is conferred the right. Section 6(1)(a) makes daughter
by birth a coparcener "in her own right" and "in the same manner
as the son." Section 6(1)(a) contains the concept of the
unobstructed heritage of Mitakshara coparcenary, which is by
virtue of birth. Section 6(1)(b) confers the same rights in the
coparcenary property "as she would have had if she had been a
son". The conferral of right is by birth, and the rights are given
in the same manner with incidents of coparcenary as that of a son
and she is treated as a coparcener in the same manner with the
same rights as if she had been a son at the time of birth. Though
the rights can be claimed, w.e.f. 09.09.2005, the provisions are of
retroactive application; they confer benefits based on the
antecedent event, and the Mitakshara coparcenary law shall be
deemed to include a reference to a daughter as a coparcener. At
the same time, the legislature has provided savings by adding a
proviso that any disposition or alienation, if there be any
testamentary disposition of the property or partition which has
taken place before 20.12.2004, the date on which the Bill was
presented in the Rajya Sabha, shall not be invalidated. [Para
55][190-H; 191-A-C]
2. The prospective statute operates from the date of its
enactment conferring new rights. The retrospective statute
operates backward and takes away or impairs vested rights
acquired under existing laws. A retroactive statute is the one
that does not operate retrospectively. It operates in futuro.
However, its operation is based upon the character or status that
arose earlier. Characteristic or event which happened in the past
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or requisites which had been drawn from antecedent events. Under
the amended section 6, since the right is given by birth, that is an
antecedent event, and the provisions operate concerning claiming
rights on and from the date of Amendment Act. [Para 56]
[191-D-E]
3. Section 6(2) provides when the female Hindu shall hold
the property to which she becomes entitled under section 6(1),
she will be bound to follow rigors of coparcenary ownership, and
can dispose of the property by testamentary mode. [Para 60]
[194-C-D]
4. 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
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 pre-deceased daughter or son are
given a share in case child has also died then surviving child of
such pre-deceased child of a pre-deceased son or pre-deceased
daughter would be allotted the same share, had they been alive
at the time of deemed partition. Thus, there is a sea-change in
substituted section 6. In case of death of coparcener after
9.9.2005, succession is not by survivorship but in accordance
with section 6(3)(1). The Explanation to section 6(3) is the same
as Explanation I to section 6 as originally enacted. Section 6(4)
makes a daughter liable in the same manner as that of a son. The
daughter, grand-daughter, or great-grand-daughter, as the case
may be, is equally bound to follow the pious obligation under the
Hindu Law to discharge any such debt. The proviso saves the
right of the creditor with respect to the debt contracted before
the commencement of Amendment Act, 2005. The provisions
contained in section 6(4) also make it clear that provisions of
section 6 are not retrospective as the rights and liabilities are
both from the commencement of the Amendment Act. [Para
61][194-D-H]
5. The proviso to section 6(1) and section 6(5) saves any
partition effected before 20.12.2004. However, Explanation to
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section 6(5) recognises partition effected by execution of a deed
of partition duly registered under the Registration Act, 1908 or
by a decree of a court. Other forms of partition have not been
recognised under the definition of 'partition' in the Explanation.
[Para 62][195-A-B]
6. Considering the principle of coparcenary that a person
is conferred the rights in the Mitakshara coparcenary by birth,
similarly, the daughter has been recognised and treated as a
coparcener, with equal rights and liabilities as of that of a son.
The expression used in section 6 is that she becomes coparcener
in the same manner as a son. By adoption also, the status of
coparcener can be conferred. The concept of uncodified Hindu
law of unobstructed heritage has been given a concrete shape
under the provisions of section 6(1)(a) and 6(1)(b). Coparcener
right is by birth. Thus, it is not at all necessary that the father of
the daughter should be living as on the date of the amendment,
as she has not been conferred the rights of a coparcener by
obstructed heritage. According to the Mitakshara coparcenary
Hindu law, as administered which is recognised in section 6(1), it
is not necessary that there should be a living, coparcener or father
as on the date of the amendment to whom the daughter would
succeed. The daughter would step into the coparcenary as that
of a son by taking birth before or after the Act. However, daughter
born before can claim these rights only with effect from the date
of the amendment, i.e., 09.09.2005 with saving of past transactions
as provided in the proviso to section 6(1) read with section 6(5).
[Para 63][195-B-E]
7. The effect of the amendment is that a daughter is made
coparcener, with effect from the date of amendment and she can
claim partition also, which is a necessary concomitant of the
coparcenary. Section 6(1) recognises a joint Hindu family
governed by Mitakshara law. The coparcenary must exist on
09.09.2005 to enable the daughter of a coparcener to enjoy rights
conferred on her. As the right is by birth and not by dint of
inheritance, it is irrelevant that a coparcener whose daughter is
conferred with the rights is alive or not. Conferral is not based
on the death of a father or other coparcener. In case living
coparcener dies after 09.09.2005, inheritance is not by
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survivorship but by intestate or testamentary succession as
provided in substituted section 6(3). [Para 64][195-F-H]
8. Under the proviso to section 6 before the amendment
made in the year 2005 in case a coparcener died leaving behind
female relative of Class I heir or a male descendant claiming
through such Class I female heir, the daughter was one of them.
Section 6, as substituted, presupposes the existence of
coparcenary. It is only the case of the enlargement of the rights
of the daughters. The rights of other relatives remain unaffected
as prevailed in the proviso to section 6 as it stood before
amendment. [Para 65][196-A-B]
9. As per the Mitakshara law, no coparcener has any fixed
share. It keeps on fluctuating by birth or by death. It is the said
principle of administration of Mitakshara coparcenary carried
forward in statutory provisions of section 6. Even if a coparcener
had left behind female heir of Class I or a male claiming through
such female Class I heir, there is no disruption of coparcenary by
statutory fiction of partition. Fiction is only for ascertaining the
share of a deceased coparcener, which would be allotted to him
as and when actual partition takes place. The deemed fiction of
partition is for that limited purpose. The classic Shastric Hindu
law excluded the daughter from being coparcener, which injustice
has now been done away with by amending the provisions in
consonance with the spirit of the Constitution. [Para 66]
[196-C-D]
10. A special definition of partition has been carved out in
the explanation to section 6(5). The intendment of the provisions
is not to jeopardise 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
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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. This Court reiterates 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.
This Court says so for exceptionally good cases where partition
is proved conclusively and the courts are cautioned 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 object
of the beneficial provisions made by the Amendment Act. The
exception is carved out 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. It is also taken note of the fact that even before
1956, partition in other modes than envisaged under Section 6(5)
had taken place. [Para 127][234-D-H; 235-A-C]
11. The expression used in Explanation to Section 6(5)
'partition effected by a decree of a court' would mean giving of
final effect to actual partition by passing the final decree, only
then it can be said that a decree of a court effects partition. A
preliminary decree declares share but does not effect the actual
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partition, that is effected by passing of a final decree; thus,
statutory provisions are to be given full effect, whether partition
is actually carried out as per the intendment of the Act is to be
found out by Court. Even if partition is supported by a registered
document it is necessary to prove it had been given effect to and
acted upon and is not otherwise sham or invalid or carried out by
a final decree of a court. In case partition, in fact, had been worked
out finally in toto as if it would have been carried out in the same
manner as if affected by a decree of a court, it can be recognized,
not otherwise. A partition made by execution of deed duly
registered under the Registration Act, 1908, also refers to
completed event of partition not merely intendment to separate,
is to be borne in mind while dealing with the special provisions of
Section 6(5) conferring rights on a daughter. There is a clear
legislative departure with respect to proof of partition which
prevailed earlier; thus, the Court may recognise the other mode
of partition in exceptional cases based upon continuous evidence
for a long time in the shape of public document not mere stray
entries then only it would not be in consonance with the spirit of
the provisions of Section 6(5) and its Explanation. [Para 128]
[235-D-G]
12. Resultantly, the reference is answered 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 09.09.2005 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
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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 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.
[Para 129][235-H; 236-E-F]
Prakash & Ors. v. Phulavati & Ors. (2016) 2 SCC 36:
[2015] 12 SCR 579 - overruled.
Danamma @ Suman Surpur & Anr. v. Amar & Ors.,
(2018) 3 SCC 343 : [2018] 2 SCR 553 -
partly overruled.
Sunil Kumar & Anr. v. Ram Parkash & Ors., (1988) 2
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SCR 440; Surjit Lal Chhabda v. Commissioner of Income
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Maharashtra v. Narayan Rao Sham Rao Deshmukh &
VINEETA SHARMA v. RAKESH SHARMA
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Ors., (1985) 2 SCC 321 : [1985] 3 SCR 358;
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Bedi v. Union of India (1982) 3 SCC 140 : [1983] 1
SCR 393; Sathyaprema Manjunatha Gowda (Smt) v.
Controller of Estate Duty, Karnataka, (1997) 10 SCC
684 : [1997] 3 SCR 586; M. Yogendra & Ors. v.
Leelamma N. & Ors., (2009) 15 SCC 184 : [2009] 12
SCR 38; Dharma Shamrao Agalawe v. Pandurang
Miragu Agalwe & Ors. (1988) 2 SCC 126 : [1988] 2
SCR 1077; Gowli Buddanna v. Commissioner of Income
Tax, Mysore, AIR 1966 SC 1523 : [1966] 3 SCR 224;
Thamma Venkata Subramma (dead) by LR v. Thamnma
Ratamma & Ors. (1987) 3 SCC 294 : [1987] 3 SCR
236; Bhagwati Prasad Sah & Ors. v. Dulhin Rameshwari
Kuer & Anr. AIR 1952 SC 72 : [1952] SCR 603; Savita
Samvedi (Ms) & Anr. v. Union of India & Ors., (1996) 2
SCC 380 : [1996] 1 SCR 1046; Hardeo Rai v. Sakuntala
Devi & Ors., (2008) 7 SCC 46 : [2008] 7 SCR 1; Man
Singh (D) by LRs. v. Ram Kala (D) by LRs., AIR 2011
SC 1542 : [2010] 14 SCR 577; I.T. Officer, Calicut v.
N.K. Sarada Thampatty, AIR 1991 SC 2035 : [1990] 1
Suppl. SCR 473; Laxmi Narayan Guin & Ors. v.
Niranjan Modak, (1985) 1 SCC 270 : [1985] 2 SCR
202; United Bank of India, Calcutta v. Abhijit Tea Co.
Pvt. Ltd. & Ors., AIR 2000 SC 2957 : [2000] 3 Suppl.
SCR 153; Commissioner of Income Tax, Delhi v. S Teja
Singh, AIR 1959 SC 352 : [1959] 1 Suppl. SCR 394;
State of Travancore-Cochin & Ors. v. Shanmugha Vilas
Cashew Nut Factory & Ors., [1954] SCR 53; Bengal
Immunity Co. Ltd. v. State of Bihar & Ors., AIR 1955
SC 661 : [1955] 2 SCR 603; Controller of Estate Duty
v. Smt. S. Harish Chandra, (1987) 167 ITR 230; Gyarsi
Bai v. Dhansukh Lal, AIR 1965 SC 1055 : [1965] 2
SCR 154; Hari Chand Roach v. Hem Chand & Ors.
(2010) 14 SCC 294 : [2010] 12 SCR 1125; Shripad
Gajanan Suthankar v. Dattaram Kashinath Suthankar,
(1974) 2 SCC 156 : [1974] 3 SCR 474; Chinthamani
Ammal v. Nandgopal Gounder, (2007) 4 SCC 163 :
[2007] 2 SCR 903; Rukhmabai v. Laxminarayan,
AIR 1960 SC 335 : [1960] 2 SCR 253; Mudigowda
VINEETA SHARMA v. RAKESH SHARMA
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B
C
D
E
F
G
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SUPREME COURT REPORTS
[2020] 10 S.C.R.
Gowdappa Sankh & Ors. v. Ramchandra Revgowda
Sankh (dead) by his LRs. & Anr., AIR 1969 SC 1076 :
[1969] 3 SCR 245; Kalwa Devdattam v. Union of India,
AIR 1964 SC 880 : [1964] 3 SCR 191; Digambar Patil
v. Devram, AIR 1995 SC 1728 : [1995] 2 SCR 133;
Girijanandini Devi & Ors. v. Bijendra Narain
Choudhary, AIR 1967 SC 1124: [1967] 1 SCR 93 -
referred to.
Lokmani & Ors. v. Mahadevamma & Ors. [S.L.P.(C)
No.6840 of 2016] Balchandra v. Smt. Poonam & Ors.
[SLP (C) No.35994/2015]; Sistia Sarada Devi v.
Uppaluri Hari Narayana & Ors. [SLP (C) No.38542/
2016]; Girijavva v. Kumar Hanmantagouda & Ors.
[SLP (C) No.6403/2019]; Smt. V.L. Jayalakshmi v. V.L.
Balakrishna & Ors. [SLP (C) No. 14353/2019]; Indubai
v. Yadavrao [SLP (C) No.24901/2019]; B.K. Venkatesh
v. B.K. Padmavathi [SLP (C) Nos. 1766-67/2020]; -
referred to.
Nagindas Bhagwandas v. Bachoo Hurkissondas, AIR
1915 PC 41; Nanak Chand & Ors. v. Chander Kishore
& Ors., AIR 1982 Del. 520; G. Narasimulu & Ors. v. P.
Basava Sankaram & Ors., AIR 1925 Mad. 249;
Haridas Narayandas Bhatia v. Devkuvarbai Mulji, AIR
1926 Bom. 408; Raghunadha v. Brozo Kishore, 3 IA
154 (PC); Baijnath Prasad Singh & Ors. v. Tej Bali
Singh, AIR 1921 PC 62; Diwan Singh v. Bhaiya Lal,
(1997) 2 MP LJ-202; Sri Balusu Gurulingaswami v.
Sri Balusu Ramalakshmamma & Ors., 26 IA 113;
Bireswar Mookerji & Ors. v. Shib Chunder Roy, 19 IA
101; Amarendra Man Singh Bhramarbar & Anr. v.
Sanatan Singh & Ors., AIR 1933 PC 155; Sri
Raghunadha v. Sri Brozo Kishore, 1876 (1) Mad. 69 =
3 IA 154; Badrinarayan Shankar Bhandari v.
Omprakash Shankar Bhandari, AIR 2014 Bom. 151;
Ramalinga v. Narayana, AIR 1922 PC 201; Kalyanji
Vithaldas & Ors. v. Commissioner of Income Tax,
Bengal, AIR 1937 PC 36; Palani Ammal v.
Muthuvenkatachala, AIR 1925 PC 49; Joala Prasad
A
B
C
D
E
F
G
H
147
Singh v. Chanderjet Kuer AIR 1938 Pat 278;
Chokalingam v. Muthukaruppan AIR 1938 Mad 849;
Ramabadra v. Gopalaswami, AIR 1931 Mad 404; Girja
Bai v. Sadashiv, AIR 1916 PC 104, Kawal Nain v.
Prabhulal, AIR 1917 PC 39; Gangabai v. Punau
Rajwa, AIR 1956 Nag 261; Kedar Nath v. Ratan Singh
(1910) 37 IA 161; Mukund Dharman Bhoir & Ors. v.
Balkrishna Padmanji & Ors. AIR 1927 PC 224;
Bhagwani v. Mohan Singh AIR 1925 PC 132;
Poornandachi v. Gopalasami, AIR 1936 PC 281; Hari
Baksh v. Babu Lal, AIR 1924 PC 126; Katama Natchiar
v. Srimat Rajah Moottoo Vijaya Raganadha Bodha
Gooroo Swamy Periya Odaya Taver, (1863) 9 MIA 543
- referred to.
Case Law Reference
[2015] 12 SCR 579
overruled
Para 1
[2018] 2 SCR 553
partly overruled
Para 1
[1969] 3 SCR 681
relied on
Para 11(c)
[1977] 3 SCR 721
relied on
Para 11 (d)
[1970] 2 SCR 648
referred to
Para 11(e)
(1998) 5 SCC 332
referred to
Para 11(m)
[2018] 6 SCR 776
referred to
Para 12(a)
[1976] 2 SCR 164
relied on
Para 13 (a)
[1968] 3 SCR 119
referred to
Para 13(d)
[1996] 5 Suppl. SCR 813
referred to
Para 13(f)
[2006] 6 Suppl. SCR 370
referred to
Para 13(g)
[1978] 3 SCR 761
referred to
Para 13 (h)
[1985] 2 SCR 643
referred to
Para 13(j)
[1974] 3 SCR 474
referred to
Para 13(m)
[1958] SCR 360
referred to
Para 14(a)
[1983] 1 SCR 393
referred to
Para 14 (a)
[1997] 3 SCR 586
referred to
Para 15(a)
VINEETA SHARMA v. RAKESH SHARMA
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SUPREME COURT REPORTS
[2020] 10 S.C.R.
[2011] 12 SCR 968
relied on
Para 16
[1988] 2 SCR 623
relied on
Para 27
[2006] 6 Suppl. SCR 874
relied on
Para 28
[2009] 12 SCR 38
referred to
Para 28
[1970] 2 SCR 1
relied on
Para 28
[1988] 2 SCR 1077
referred to
Para 29
[1967] 1 SCR 7
relied on
Para 32
[1962] 3 SCR 440
relied on
Para 33
[1966] 3 SCR 224
referred to
Para 34
[1985] 3 SCR 358
relied on
Para 35
[2005] 1 Suppl. SCR 160
relied on
Para 37
[2013] 7 SCR 897
relied on
Para 38
[1987] 3 SCR 236
referred to
Para 39
[2011] 7 SCR 468
relied on
Para 40
[1985] 3 Suppl. SCR 169
relied on
Para 41
[1952] SCR 603
referred to
Para 42
[1996] 1 SCR 1046
referred to
Para 50
[1990] 3 Suppl. SCR 212
relied on
Para 57
[2009] 5 SCR 1005
referred to
Para 58
[2008] 7 SCR 1
referred to
Para 80
[2010] 14 SCR 577
referred to
Para 82
[1990] 1 Suppl. SCR 473
referred to
Para 89
(1991) 3 SCC 647
relied on
Para 90
[2011] 8 SCR 55
relied on
Para 91
[2009] 14 SCR 40
relied on
Para 92
[1985] 2 SCR 202
referred to
Para 94
[2000] 3 Suppl. SCR 153
referred to
Para 95
A
B
C
D
E
F
G
H
149
[1968] 3 SCR 119
referred to
Para 98
[1959] 1 Suppl. SCR 394
referred to
Para 100
[1954] SCR 53
referred to
Para 101
[1955] 2 SCR 603
referred to
Para 101
[1965] 2 SCR 154
referred to
Para 103
[2010] 12 SCR 1125
referred to
Para 105
[1976] 3 SCR 202
referred to
Para 117
[1974] 3 SCR 474
referred to
Para 118
[2007] 2 SCR 903
referred to
Para 119
[1960] 2 SCR 253
referred to
Para 120
[1969] 3 SCR 245
referred to
Para 120
[1964] 3 SCR 191
referred to
Para 121
[1995] 2 SCR 133
referred to
Para 122
[1967] 1 SCR 93
referred to
Para 123
CIVIL APPELLATE JURISDICTION: Civil Appeal Diary No.
32601 of 2018.
From the Judgment and Order dated 15.05.2018 of the High Court
of Delhi at New Delhi in R.F.A. No. 301 of 2017.
With
Special Leave Petition (Civil) Nos. 684 of 2016, 35994 of 2015,
38542 of 2016, 6403, 14353. 24901 of 2019, 1766-1767 of 2020.
Tushar Mehta, SG, R. Venkatramani, V.V.S. Rao, Ranjit Kumar,
Sr. Advs. (ACs), Biswajit Bhattacharya, Sr. Adv., Ms. Swati Ghildiyal,
A.K. Sharma, Ms. Rashmi Nandakumar, Byrapaneni Suyodhan,
Ms. Tatini Basu, Rupesh Kumar, Rajeev Sharma, Ms Neelam Sharma,
Ms Pankhuri Shrivastava, Rohit Rathi, Sameer Shrivastava, I.V. Kasyap,
Krishna Kumar, Dr (Mrs) Vipin Gupta, V.N. Raghupathy, Raghavendra
S. Srivatsa, Pai Amit, Poonacha C.M., Rahat Bansal, Ms. Pankhuri
Bhardwaj, Sridhar Potaraju, Ms. Shivani Tushir, Ms. G. Usha Sri, Vishnu
Tulashi Menon, Rajesh Mahale, Ankolekar Gurudatta, Subhasish
Mohanty, Ms. Anagha S. Desai, Irshad Ahmad, Shree Pal Singh, Manu
VINEETA SHARMA v. RAKESH SHARMA
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[2020] 10 S.C.R.
Mridul, Surya Kant, Satya Kam Sharma, Ms. Apeksha D., Advs. for the
appearing parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. 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.
2. In the case of Lokmani & Ors. v. Mahadevamma & Ors.,
[S.L.P.(C) No.6840 of 2016] the High Court held that section 6, as
amended by the Act of 2005, is deemed to be there since 17.6.1956
when the Act of 1956 came into force, the amended provisions are given
retrospective effect, when the daughters were denied right in the
coparcenary property, pending proceedings are to be decided in the light
of the amended provisions. Inequality has been removed. The High Court
held that the oral partition and unregistered partition deeds are excluded
from the definition of 'partition' used in the Explanation to amended
Section 6(5).
3. In Balchandra v. Smt. Poonam & Ors. [SLP [C] No.35994/
2015], the question raised is about the retrospectivity of section 6 as
substituted by Amendment Act, 2005 and in case the father who was a
coparcener in the joint Hindu family, was not alive when the Act of 2005
came into force, whether daughter would become a coparcener of joint
Hindu family property.
4. In the matter of Sistia Sarada Devi v. Uppaluri Hari
Narayana & Ors. [SLP [C] No.38542/2016], the question raised is
where the final decree has not been passed in a suit for partition, whether
the re-distribution of shares can be claimed by the daughters by amended
section 6, as substituted.
5. In Girijavva v. Kumar Hanmantagouda & Ors. [SLP [C]
No.6403/2019], the question raised is whether section 6, as substituted,
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151
is prospective as the father died in the year 1994 and, thus, no benefit
could be drawn by the daughters.
6. In Smt. V.L. Jayalakshmi v. V.L. Balakrishna &Ors. [SLP
[C] No. 14353/2019], the petitioner sought partition of his father's
ancestral properties, and suit was filed in 2001. The trial court granted
1/7th share to all the parties. The same was modified. It was held petitioner,
and daughters were entitled to only 1/35th share in the light of the decision
of this Court in Prakash v. Phulavati (supra).
7. In Indubai v. Yadavrao [SLP [C] No.24901/2019], a similar
question has been raised. In B.K. Venkatesh v. B.K. Padmavathi [SLP
[C] Nos. 1766-67/2020], the daughters have been accorded equal shares
in Item No. 1 of Schedule A property, that has been questioned.
8. A Division Bench of this Court in Prakash v. Phulavati (supra)
held that section 6 is not retrospective in operation, and it applies when
both coparceners and his daughter were alive on the date of
commencement of Amendment Act, 9.9.2005. This Court further opined
that the provision contained in the Explanation to section 6(5) provides
for the requirement of partition for substituted section 6 is to be a
registered one or by a decree of a court, can have no application to a
statutory notional partition on the opening of succession as provided in
the unamended Section 6. The notional statutory partition is deemed to
have taken place to ascertain the share of the deceased coparcener
which is not covered either under the proviso to section 6(1) or section
6(5), including its Explanation. The registration requirement is inapplicable
to partition of property by operation of law, which has to be given full
effect. The provisions of section 6 have been held to be prospective.
9. In Danamma (supra), 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. Gurunalingappa died in the year 2001, leaving
behind two daughters, two sons, and a widow. Coparcener's father
was not alive when the substituted provision of section 6 came into force.
The daughters, sons and the widow were given 1/5th share apiece.
Arguments:
10. Shri Tushar Mehta, learned Solicitor General of India, appearing
on behalf of Union of India, raised the following arguments:
VINEETA SHARMA v. RAKESH SHARMA
[ARUN MISHRA, J.]
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SUPREME COURT REPORTS
[2020] 10 S.C.R.
(i) The daughters have been given the right of a coparcener, to
bring equality with sons, and the exclusion of daughter from coparcenary
was discriminatory and led to oppression and negation of fundamental
rights. The Amendment Act, 2005, is not retrospective but retroactive in
operation since it enables the daughters to exercise their coparcenary
rights on the commencement of the Amendment Act. Even though the
right of a coparcener accrued to the daughter by birth, coparcenary is a
birthright.
(ii) The conferment of coparcenary status on daughters would
not affect any partition that may have occurred before 20.12.2004 when
the Bill was tabled before Rajya Sabha as contained in the proviso to
section 6(1). Hence, the conferment of right on the daughter did not
disturb the rights which got crystallised by partition before 20.12.2004.
(iii) Unamended Section 6 provided that if a male coparcener had
left behind on death a female relative specified in Class I of the Schedule
or male relative claiming through such female relative, the daughter was
entitled to limited share in the coparcenary interest of her father not
share as a coparcener in her rights. They were unable to inherit the
ancestral property like sons/male counterparts. The Mitakshara
coparcenary law not only contributed to discrimination on the ground of
gender but was oppressive and negated the fundamental right of equality
guaranteed by the Constitution of India.
(iv) With effect from 9.9.2005, the date of enforcement of
Amendment Act, the daughters became coparceners by birth, in their
own right with the same liability in the coparcenary property as if she
had been a son.
(v) The Explanation contained under Section 6(1) concerning
conferral of rights as coparcener, daughter as coparcener, shall not affect
or invalidate any disposition or alienation including any partition or
testamentary disposition of the property which had taken place before
20.12.2004.
(vi) After substitution of the provisions of section 6, the devolution
of coparcenary by survivorship has been abrogated. Now in case of
death of coparcener, male/female, the coparcenary interest would not
devolve by survivorship but by intestate succession under the provisions
of the Hindu Succession Act or based on testamentary succession.
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(vii) The decision in Prakash v. Phulavati to the effect that there
should be a living daughter of a living coparcener on the date of
commencement of the Act of 2005 fails to appreciate that coparcenary
rights are by birth. The death of a Hindu coparcener father or any other
coparcener is only relevant for the succession of his coparcenary interest
under section 6(3) of the Act of 2005. The death of any coparcener
does not bring to an end any coparcenary. An increase or decrease in
the coparcenary interest independently held by each coparcener may
occur by birth or death. On the coparcener's death, the notional partition
is drawn only to determine his coparcenary's interest. It does not disturb
the other incidents of the coparcenary, it can continue without disruption
with other coparceners, and even new coparceners can be added on
account of birth till the time an actual partition takes place. Coparcenary
interest becomes definite only when a partition is effected.
(viii) The daughter of a coparcener in section 6 does not imply the
daughter of a living coparcener or father, as the death of the coparcener/
father does not automatically lead to the end of coparcenary, which may
continue with other coparceners alive. Thus, the coparcener, from whom
the daughter is inheriting by her being coparcener, needs not to be alive
as on the commencement of the Amendment Act of 2005.
(ix) The Explanation to Section 6(5) was not provided in the original
amendment Bill moved before the Rajya Sabha on 20.12.2004, which
came to be added later.
(x) Often, coparceners enter into a family arrangement or oral
partition, and it may not be necessary to register such a partition.
Explanation to section 6(5) of the Amendment Act requires the partition
to be registered, was inserted to avoid any bogus or sham transactions.
Considering the entire scheme of the Amendment Act, the requirement
of registered partition deed is directory and not mandatory. Any
coparcener relying upon any family arrangement or oral partition must
prove the same by leading proper documentary evidence.
11. Shri R. Venkataramani, learned senior counsel/amicus curiae,
argued as under:
(a) There is no conflict between the decisions in Prakash v.
Phulavati (supra) and Danamma v. Suman (supra). In both the
decisions, the provisions of section 6 have been held to be of prospective
application.