SUPREME
COURT ON UNFETTERED COPARCENARY RIGHTS OF WOMEN
The
daughter has equal rights on the ancestral property
The Hindu Succession (Amendment) Act
2005 and its applicability analysed
Prior
to enactment of The Hindu Succession ( Amendment) Act 2005, a daughter had no
rights in the ancestral property of the family and only limited rights were
available to a daughter in terms of The Hindu Succession Act 1956. The journey
of equal treatment, has now run a full circle in as much as in terms of The
Hindu Succession (Amendment) Act 2005 ,
the daughter is treated as coparcener, like her brothers and equal rights and
entitlement was bestowed on her in the estate of her father. However, the right
was not unfettered, in as much if, the father of the daughter, had breathed his
last, prior to the enactment of The Hindu Succession ( Amendment) Act 2005,
then, such daughters could not have claimed the rights in the ancestral
properties. That anomaly is set at rest by the hon’ble Supreme Court with
authoritative pronouncement of judgment reported as Vineeta Sharma Vs Rakesh
Sharma AIR 2020 Supreme Court 3717. The analysis of the judgment needed
to be pondered over in the prelude to the judgment, shall be worthwhile.
The
legislative history of section 6 throws light in understanding the provision
before the Act of 1956 was enacted. Women were not having any interest in the
coparcenary properties, and on the demise of a coparcener, the share of the
deceased coparcener devolved on the surviving coparceners. Hindu Succession Act
made inroads into the system. It provided that on the demise of a coparcener,
his interest in the coparcenary properties would not devolve on other
coparceners by survivorship, and the share of the deceased coparcener was to be
ascertained by way of notional partition as on the date of death. To that
limited extent, the women did not become a coparcener, but they could inherit
the property.
The
174th Report of Law Commission of India recommended the adoption of
the Kerala Model, and the amendments were effected in Kerala, Andhra Pradesh,
Karnataka, and in several States, giving coparcenary rights to the daughters.
The
question concerning the interpretation of section 6 of the Hindu Succession
Act, 1956 as amended by Hindu Succession
(Amendment) Act, 2005 (in short, 'the Act of 2005') were referred to a larger
Bench in view of the conflicting verdicts rendered in two Division Bench
judgments of the Supreme Court in Prakash & Ors. v. Phulavati &
Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. v. Amar
& Ors., (2018) 3 SCC 343.
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).
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?
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 redistribution of shares
can be claimed by the daughters by amended section 6, as substituted?
In
Girijavva v. Kumar Hanmantagouda & Ors. [SLP [C] No.6403/2019],
the question raised is whether section 6, as substituted, is prospective as the
father died in the year 1994 and, thus, no benefit could be drawn by the
daughters.
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.
176667/ 2020], the daughters have been accorded equal shares in Item No. 1 of
Schedule A property, that has been questioned.
Another
Division Bench of the Supreme 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. The Supreme 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 has been held to be prospective.
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 that petitioner,
and daughters were entitled to only 1/35th share in the light of the
decision of the Supreme Court in Prakash v. Phulavati (supra).
In
Danamma (supra), the Supreme 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.
Acquisition of Rights in Coparcenary
Property
According
to Supreme Court while dealing with Vinetta Sharma (Supra) It is
by birth that interest in the property is acquired. Devolution on the death of
a coparcener before 1956 used to be only by survivorship. After 1956, women
could also inherit in exigencies, mentioned in the proviso to unamended section
6. Now by legal fiction, daughters are treated as coparceners. No one is made a
coparcener by devolution of interest. It is by virtue of birth or by way of
adoption obviously within the permissible degrees; a person is to be treated as
coparcener and not otherwise. The argument raised that if the father or any
other coparcener died before the Amendment Act, 2005, the interest of the
father or other coparcener would have already merged in the surviving coparcenary,
and there was no coparcener alive from whom the daughter would succeed. According
to the Supreme Court such interpretation cannot be accepted, because it is not
by the death of the father or other coparcener that rights accrue. It is by the
factum of birth. It is only when a female of Class I heir is left, or in case
of her death, male relative is left, the share of the deceased coparcener is
fixed to be distributed by a deemed partition, in the event of an actual
partition, as and when it takes place as per the proviso to unamended section
6. The share of the surviving coparcener may undergo change till the actual
partition is made. The proviso to section 6 does not come in the way of formation
of a coparcenary, and who can be a coparcener. The proviso to section 6 as
originally stood, contained an exception to the survivorship right. The right
conferred under substituted section 6(1) is not by survivorship but by birth.
The death of every coparcener is inevitable. How the property passes on death
is not relevant for interpreting the provisions of section 6(1). Significant is
how right of a coparcener is acquired under Mitakshara coparcenary. It cannot
be inferred that the daughter is conferred with the right only on the death of
a living coparcener, by declaration contained in section 6, she has been made a
coparcener. The precise declaration made in section 6 (1) has to be taken to
its logical end; otherwise, it would amount to a denial of the very right to a
daughter expressly conferred by the legislature. Survivorship as a mode of
succession of property of a Mitakshara coparcener, has been abrogated with
effect from 9.9.2005 by section 6(3).
In
effect, the
suits/appeals pending before different High Courts and subordinate courts were
delayed due to legal imbroglio caused by
conflicting decisions. The daughters cannot be deprived of their right of
equality conferred upon them by Section. It was therefore directed that the
pending matters be decided, as far as possible, within six months. In view of
this judgment, the Supreme Court has overruled
the contrary views expressed in Prakash v. Phulavati and
Mangammal v. T.B. Raju & Ors. The opinion expressed in
Danamma @ Suman Surpur & Anr. v. Amar is also partly overruled to
the extent it is contrary to this decision.
The
right to claim partition is a significant basic feature of the coparcenary, and
a coparcener is one who can claim partition. The daughter has now become
entitled to claim partition of coparcenary
w.e.f. 9.9.2005, which is a vital change brought about by the statute. A
coparcener enjoys the right to seek severance of status. Under section 6(1) and
6(2), the rights of a daughter are pari passu with a son. In the
eventuality of a partition, apart from sons and daughters, the wife of the
coparcener is also entitled to an equal share. The right of the wife of a
coparcener to claim her right in property is in no way taken away.
The
decision in Hardeo Rai v. Sakuntala Devi & Ors., (2008) 7 SCC 46
lays down that when an intention is expressed to partition the coparcenary
property, the share of each of the coparceners becomes clear and ascertainable.
Once the share of a coparcener is determined, it ceases to be a coparcenary property.
After taking a definite share in the property, a coparcener becomes the owner
of that share, and, as such, he can alienate the same by sale or mortgage in
the same manner as he can dispose of his separate property. It was observed:
“22. For the purpose of
assigning one’s interest in the property, it was not necessary that partition
by metes and bounds amongst the coparceners must take place. When an intention
is expressed to partition the coparcenary property, the share of each of the coparceners
becomes clear and ascertainable. Once the share of a coparcener is determined,
it ceases to be a coparcenary property. The parties in such an event would not
possess the property as “joint tenants” but as “tenants-in-common”. The
decision of this Court in SBI, (1969) 2 SCC 33, therefore, is not applicable to
the present case.
23. Where a coparcener takes definite
share in the property, he is owner of that share and as such he can alienate
the same by sale or mortgage in the same manner as he can dispose of his
separate property.”
PRELIMINARY DECREE
AND FINAL DECREE: ANALYSIS
When a suit for partition is preferred in courts
of law, generally, a preliminary decree is followed by a final decree. The
Preliminary decree ascertains the shares of the parties in the suit and as
regards modalities of partition, demarcation of properties, sale or auction of the
properties, if the properties are not capable of being divided by metes and bounds.
The appointment of surveyor, Local Commissioner may also have to be appointed
in view of fully and finally decide the
claim of partition.
To elucidate the
aspect further, the Supreme Court has consistently held that a preliminary
decree determines the rights and interests of the parties. The suit for
partition is not disposed of by passing of the preliminary decree. It is by a
final decree that the immovable property of joint Hindu family is partitioned
by metes and bounds. After the passing of the preliminary decree, the suit
continues until the final decree is passed. If in the interregnum i.e. after
passing of the preliminary decree and before the final decree is passed, the
events and supervening circumstances occur necessitating change in shares,
there is no impediment for the Court to amend the preliminary decree or pass
another preliminary decree redetermining the rights and interests of the
parties having regard to the changed situation. The three-Judge Bench decision
of the Supreme Court in Phoolchand & Anr. v. Gopal Lal, AIR 1967 SC 1470,
it is Court stated as follows:
"We are of opinion that
there is nothing in the Code of Civil Procedure which prohibits the passing of
more than one preliminary decree if circumstances justify the same and that it
may be necessary to do so particularly in partition suits when after the
preliminary decree some parties die and shares of other parties are thereby
augmented. … So far therefore as partition suits are concerned we have no doubt
that if an event transpires after the preliminary decree which necessitates a change
in shares, the Court can and should do so; … there is no prohibition in the
Code of Civil Procedure against passing a second preliminary decree in such
circumstances and we do not see why we should rule out a second preliminary
decree in such circumstances only on the ground that the Code of Civil Procedure
does not contemplate such a possibility. … for it must not be forgotten that
the suit is not over till the final decree is passed and the Court has
jurisdiction to decide all disputes that may arise after the preliminary
decree, particularly in a partition suit due to deaths of some of the parties.
… a second preliminary decree can be passed in partition suits by which the
shares allotted in the preliminary decree already passed can be amended and if
there is dispute between surviving parties in that behalf and that dispute is decided
the decision amounts to a decree….."
As
the declaration of rights or shares is only the first stage in a suit for
partition, a preliminary decree does not have the effect of disposing of the
suit. The suit continues to be pending until partition , that is,
division by metes and bounds takes place by passing a final decree. An
application requesting the Court to take necessary steps to draw up a final decree
effecting a division in terms of the preliminary decree, is neither an
application for execution (falling under Article 136 of the Limitation Act) nor
an application seeking a fresh relief (falling under Article 137 of the
Limitation Act). It is only a reminder to the Court to do its duty to appoint a
Commissioner, get a report, and draw a final decree in the pending suit so that
the suit is taken to its logical conclusion.
On
the other hand, in a partition suit the preliminary decrees only decide a part
of the suit and therefore an application for passing a final decree is only an
application in a pending suit, seeking further progress. In partition suits,
there can be a preliminary decree followed by a final decree, or there can be a
decree which is a combination of preliminary decree and final decree or there
can be merely a single decree with certain further steps to be taken by the
Court. In fact, several applications for final decree are permissible in a
partition suit. A decree in a partition suit enures to the benefit of all the
co-owners and therefore, it is sometimes said that there is really no
judgment-debtor in a partition decree.
The
right to claim partition is a significant basic feature of the coparcenary, and
a coparcener is one who can claim partition. The daughter has now become
entitled to claim partition of coparcenary w.e.f. 9.9.2005, which is a vital
change brought about by the statute. A coparcener enjoys the right to seek
severance of status. Under section 6(1) and 6(2), the rights of a daughter are pari
passu with a son. In the eventuality of a partition, apart from sons and
daughters, the wife of the coparcener is also entitled to an equal share. The
right of the wife of a coparcener to claim her right in property is in no way
taken away.
What
is interesting is that for instance, if
a suit for partition was filed in the year 2002 and during the pendency of this
suit, Section 6 of the Act was amended as the decree was passed by the trial
court only in the year 2007. Thus, the rights of the appellants got crystallised
in the year 2005 and this event should have been kept in mind by the trial
court as well as by the High Court. This Court in Ganduri Koteshwaramma
v. Chakiri Yanadi (2011) 9 SCC 788, held that the rights of daughters
in coparcenary property as per the amended Section 6 are not lost merely
because a preliminary decree has been passed in a partition suit. So far as
partition suits are concerned, the partition becomes final only on the passing
of a final decree. Where such situation arises, the preliminary decree would have
to be amended taking into account the change in the law by the amendment of
2005.
What
emerges, therefore, is that It is by birth that interest in the property is
acquired. Devolution on the death of a coparcener before 1956 used to be only
by survivorship. After 1956, women could also inherit in exigencies, mentioned
in the proviso to unamended section 6. Now by legal fiction, daughters are
treated as coparceners. No one is made a coparcener by devolution of interest.
It is by virtue of birth or by way of adoption obviously within the permissible
degrees; a person is to be treated as coparcener and not otherwise. To argue
that if the father or any other coparcener died before the Amendment Act, 2005,
the interest of the father or other coparcener would have already merged in the
surviving coparcenary, and there was no coparcener alive from whom the daughter
would succeed. We are unable to accept the submission because it is not by the
death of the father or other coparcener that rights accrue. It is by the factum
of birth. It is only when a female of Class I heir is left, or in case of her
death, male relative is left, the share of the deceased coparcener is fixed to
be distributed by a deemed partition, in the event of an actual partition, as
and when it takes place as per the proviso to unamended section 6. The share of
the surviving coparcener may undergo change till the actual partition is made.
The proviso to section 6 does not come in the way of formation of a
coparcenary, and who can be a coparcener. The proviso to section 6 as
originally stood, contained an exception to the survivorship right. The right
conferred under substituted section 6(1) is not by survivorship but by birth.
The death of every coparcener is inevitable. How the property passes on death
is not relevant for interpreting the provisions of section 6(1). Significant is
how right of a coparcener is acquired under Mitakshara coparcenary. It
cannot be inferred that the daughter is conferred with the right only on the
death of a living coparcener, by declaration contained in section 6, she has
been made a coparcener. The precise declaration made in section 6 (1) has to be
taken to its logical end; otherwise, it would amount to a denial of the very
right to a daughter expressly conferred by the legislature. Survivorship as a
mode of succession of property of a Mitakshara coparcener, has been abrogated
with effect from 9.9.2005 by section 6(3).
The
discussion , if taken further shall entail 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.
A
special definition of partition has been carved out in the explanation. 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 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 object 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.
Significantly,
the Supreme Court has held in Vineeta Sharma (Supra) as under:
128. 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 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.
The
Supreme Court had 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 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 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.
The
Hindu Succession ( Amendment) Act 2005 is thus historic and the further judgments
including the one under reference ( Ref: Vineeta Sharma) has settled what was
ambiguous and hitherto unsettled. The finality has emerged and in a great deal
it may appear that die is cast. The ambiguity has successively been mitigated
and now, probably it is settled fully and finally. The coparcenary rights of
daughters are established and that too by birth as has been the norm in case of
males, hence, there is no distinction between males and females as regards the
rights of females. The concept recognised is “once a daughter always a
daughter”. The inherent antipathy or relegation of females rights are the nuances
of the past and the rights of women have now been truly and really established
in inheritance.
-----
Anil
K Khaware
Founder
& Senior Associate
Societylawandjustice.com
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