Citation: Civil Appeal No. Diary No.32601 Of 2018
Corum: Justice Arun Mishra, Justice S. Abdul Nazeer, Justice M.R. Shah
Ms. Vineeta Sharma,(Appellant), filed a case against her two brothers viz. Mr. Rakesh Sharma & Satyendra Sharma, and her mother,(Respondents). Sh. Dev Dutt Sharma who was the father of the appellant, expired on December 11, 1999. He left behind three sons, one daughter, and a wife. One of his sons who was unmarried expired on July 1, 2001. The Appellant claimed 1/4th share in the property of her father, being the daughter. The Respondents stated that after her marriage, she ceased to be a member of the Joint family and on that ground, The Hon’ble Delhi High Court disposed of the appeal stating that the amendments of 2005 did not benefit the Appellant, as the father of the Appellant passed away on December 11, 1999. This judgment was similar to the one of Prakash & Ors. v. Phulavati & Ors. But the conflict arose when a judgment contrary to this was found in the case of Danamma @ Suman Surpur & Anr. v. Amar & Ors. A Larger bench was referred in this case to settle on the conflicting judgment.
- Whether the position of the daughter in HUF is of coparceners?
- What will be the effect of the death of the father before amendment 2005, on the daughter’s right over the property?
- Whether the application of amendment of 2005 is retrospective?
Before 1956, the Shastric and Customary Law varied from region to region governed by Hindus. The two main schools of Hindu Succession law were Dayabhaga and Mitakshara. Sometimes it also varied in the same region on a caste basis. But after 1956, with the introduction of the Hindu Succession Act, 1956, Ancestral property started getting devolved by survivorship rule only. Only the males were the coparceners up to three generations. Women were not recognized as coparceners.
In 2005, the legislature through a progressive amendment to the Hindu Succession Act 1956 granted coparcenary rights to daughters under section 6 like the sons have. The Survivorship Rule was abrogated. Daughters were also recognized as coparceners. Succession was either ‘Testamentary’ or ‘Intestate Succession’. Enforcement Date of the Amendment Act was 9th September, 2005. Although the legislative intent of the Amendment was clear, it became a subject matter of intense legal debate and resulted in various courts interpreting the same in divergence.
The Apex Court in the case of Prakash & Ors. v. Phulavati and Ors. laid down that the provisions of the amendment are applicable to living daughters of living coparceners as of 9th September, 2005, irrespective of when such daughters are born. It stated that the father has to be alive on the date of enforcement of the 2005 amendment and only then, daughters can claim the benefit under the 2005 Amendment. It also said that the retrospective effect of the Amendment was applicable till 20th November 2004 and thus Phulavati was not considered as a coparcener.
However, in the case of Danamma @ Suman Surpur & Anr. v. Amar & Ors (2018), the Court granted the rights to a coparcener who had died much before 9.9.2005. Though the case didn’t specifically focus on the concept of Living Daughter of a Living Coparcener, it opined that the daughters have equal rights as the son on the ancestral property even though the coparcener had died before the amendment. This judgment was contradictory to the judgment of Prakash & Ors. V. Phulavati and Ors., creating confusion regarding the status of daughters as a coparcener.
The Supreme Court in this particular case stated the nature of the rights of the members of a coparcenary under the Hindu Law, and proceeded to hold the right of the daughters under the Amendment of 2005 to be retroactive rather than prospective. The Court disagreed with the judgment of 2016. It stated that the father need not be alive on the date of enforcement of the 2005 Amendment. It stated that the daughters have coparcenary rights over the ancestral property since birth like sons. The court by this judgment recognized that gender cannot be a justification for denial of anyone’s inheritance right. This interpretation by the Supreme Court has removed male superiority over Hindu ancestral property. It gave the daughters the equal coparcenary rights in consonance with the spirit of equality, under Article 14 of the Indian Constitution.