Disha Agarwal | ICFAI Hyderabad | 29th August 2020
After the independence, the first law pertaining to the property under Hindu law was Hindu Succession Act, 1956. The Act dealt with intestate succession, rights, duties of sons’, daughters’ etc. It provided a detailed framework on the inheritance of sons, daughters etc. Section 6 of the Hindu Succession Act, has gone through a series of development over the years.
Section 6 as per Hindu Succession Act,1956:
Section 6 of the Hindu Succession Act, 1956 provides for devolution of property of intestate succession. It provided that the property shall be devolved on male coparceners who have interest in the coparcenary property, such interest in the male coparceners was only limited till three degrees i.e male son, grand son and great grand-son. The interest is devolved by way of survivorship. The Hindu Succession Act, 1956 specifically excluded females from acquiring any share on interest in the property, the wife was not considered as a direct blood line of the deceased.
Section 6 of the Hindu Succession Act, 1956 after 2005 Amendment:
The 1956 Act was amended in 2005 and a major change bought in the amendment was in Section 6 which aimed to remove the gender bias. Section 6 of 2005 Amendment Act provided for equal rights of both sons and daughters as they both are coparceners. The Mitakshara coparcener liabilities would be equally applicable on daughter. The Act was made applicable to three degrees of female coparceners as well – daughters, grand-daughters, great grand-daughters. Thus, Section 6 aimed at giving equal rights to daughters as coparceners as sons have.
Conflicting opinions in regard to Section 6:
Prakash & Ors. v. Phulavati & Ors[1]
In the present case, the daughter claimed for an equal share in her father’s property as a coparcener and father had died prior to the commencement of the Hindu Succession Amendment Act, 2005. There was a dispute regarding self-acquired property and ancestral property and its retrospective or prospective application. Here, the main issue was whether the Hindu Succession Amendment Act, 2005 will be applied retrospectively or not?
The Apex Court differed from the decision of High Court and Trail Court and placed reliance on unless the statute expressly states the retrospective applicability, it is implied that the statute is applied prospectively.[2] The Apex Court stated that as per the notional partition the shares were already allotted under Hindu Succession Act, 1956, herein termed as Principal Act and the same could not be taken away by way of an amendment i.e Hindu Succession Amendment Act, 2005. The Court rejected the contention of the Respondent that as it was a social legislation aimed at removing the inequalities between male and female, it should be applied retrospectively. The Supreme Court expressly stated that the social legislation also cannot be given retrospective application unless provided expressly in the statute. It stated that the Hindu Succession Amendment Act, 2005 will be applicable to ‘living daughters and living coparceners as on 9-9-2005, irrespective of when such daughters were born’ and all the partitions wherein the coparcener has passed away before 9-9-2005, the living daughter will not be entitled to her share in the property.
Danamma @ Suman Surpur vs Amar[3]
In the present case, there was a dispute as to whether the Appellants (daughters) were entitled to equal share in the property as they were born prior to the enactment of Hindu Succession Act, 1956 or not?
The Trial Court and High Court rejected the application of the Appellant and stated that she was not entitled to share in the property as she was born prior to the enactment of Hindu Succession Act, 1956 and the original coparcener had died prior to the Hindu Succession Amendment Act, 2005. A Special Leave Petition challenging the order was filed before the Supreme Court.
The Supreme Court differed from the judgment passed by Trial Court and High Court. It stated that the original coparcener had died in the year 2001, the suit for partition was filed in the year 2002 and the decree by Trial Court was awarded in the year 2007.During the pendency of the suit the Hindu Succession Amendment Act, 2005 was passed which conferred the status of coparcener to daughter as well and her rights and liabilities were equated to those granted to the son. Thus, the Supreme Court explicitly deliberated that the amendment is applied to the present case as the partition was given affect after the decree passed by lower court in 2007.
Conflicting interpretations by the Courts with respect to Section 6 gave rise to ambiguities. Danamma’s case failed to delve upon the actual issue of the case and passed a decision in conflict to the previous decision upheld in Phulwati. The date of partition being taken into consideration is not relevant in the present scenario as the issue is whether daughter is entitled to the share if her father passes away before 9-9-2005. In Phulwati’s case, the Supreme Court had fixed a cut-off date that if the father is alive as on 9-9-2005, then the living coparcener (daughter) will be entitled to the share in the property and subsequently will have to forgo her share if the father passes away as on 9-9-2005 or before that. The divergent legal opinions passed in the above two cases created unnecessary ambiguity with respect to the interpretation of Section 6 of Hindu Succession Amendment Act, 2005.
Historic Judgment: Vineeta Sharma v Rakesh Sharma (11th August 2020)
The question with respect to ambiguous interpretations of Section 6 is addressed to a larger bench as it involved similar issues with conflicting previous judgments. The three judge-bench of the Supreme Court stated the following:
- The Hon’ble Supreme Court stated that it is not necessary for the daughter and the coparcener to be alive as on the date of amendment i.e 9-9-2005. By fixing a cut-off date it will defeat the purpose of amendment as the main objective behind amendment was to grant equal rights to daughters as granted to sons. Irrespective of whether the original coparcener is alive as on 9-9-2005 or not the daughter is entitled to claim an equal share in the property
- With respect to prospective and retrospective application, the Court stated that the prospective statute operates from the date of its enactment conferring/granting new rights while the retrospective statute operates backwards taking away vested rights. It stated that Section 6 would be a retroactive statute, the one that operates in futuro, its operation is based upon an event which happened in the past, the antecedent event as per Section 6 is the right being given by birth hence, it confers rights to daughters at the time of their birth even if the birth takes place prior to the Hindu Succession Amendment Act, 2005.
Thus, the recent judgment by Supreme Court takes a laudable step thereby ending the gender injustice and implements Section 6 amendment of 2005 in its true spirit. It further puts an end to various divergent opinions by different Courts.
[1] (2016) 1 SCC (Civ) 549
[2] Shyam Sunder v. Ram Kumar, (2001) 8SCC 24.
[3] (2018)3SCC 343
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