The Hindu Succession (Amendment) Act, 2005 paved way for gender equality in matters of succession amongst Hindus. However, Section 6 of the Act has been a matter of litigation since then. The provision has witnessed a number of issues related to its applicability under various circumstances.
The present case deals with the interpretation of the amended Section 6 of the Hindu Succession Act, 1956. Earlier, two contradicting views were taken by the division benches of the Supreme Court. In the case of Prakash v. Phulavati[1], the said amendment was held to be prospective in nature and was made applicable when both coparcener and his daughter were alive on the date of commencement of Amendment Act, 2005. On the other hand, in the case of Danamma @Suman Surpur and Anr v. Amar[2], it was said that any coparcener, including a daughter, can claim a partition in the coparcenary property even when the father died before 2005. As a result, a reference was made to a larger bench for the interpretation of the said provision. In furtherance of this, the present case was brought.
Legal issues in the case:
The primary issue in the case is related to the interpretation of Section 6 of the Amendment Act of 2005. Another major issue before the court was related to the applicability of the Act, i.e., whether the amendment is retrospective, retroactive or prospective in nature.
Major arguments made in the case:
A number of arguments have been raised and answered by the court in this case.
Some of the primary arguments raised in favor of retroactivity of the amendment are –
a) Nature of the amendment: The state argued that the amendment of 2005 is retroactive (and not retrospective) in nature. Further to substantiate this, they say that coparcenary is a birthright and does not accrue by virtue of the amendment.
b) The state further contended that the decision in the case of Prakash v. Phulavati (supra) does not lay down the correct position. In the mentioned case, it was held that there should be a living daughter of a living coparcener on the date of commencement of the Act of 2005 for the purposes of application of Section 6. The state argued that the decision fails to appreciate that coparcenary rights are by accrued from birth. Death of any coparcener does not bring an end to the coparcenary rights. Hence, they argued that the coparcener, from whom the daughter is inheriting, need not to be alive as on the commencement of the Amendment Act of 2005.
c) Another important argument related to Explanation to Section 6(5) of the 2005 Amendment Act has been put forth in the case. It has been argued that the Explanation to Section 6(5) requires the partition to be registered, and was inserted to avoid any bogus or sham transactions. They further argued that the provision is directory and not mandatory in nature, keeping the entire scheme of the amendment in mind.
d) It was also contended that giving effect to the decision laid down in Prakash v. Phulavati would amount to adding to the text of section 6. It was argued that Section 6 includes all living daughters of coparceners, irrespective of whether such coparceners are deceased or alive at the commencement of the 2005 Amendment. Hence, the provision should be given full effect.
e) The contention that under Section 6, both sons and daughters of coparceners are conferred the right of becoming coparcener by birth was also put forth. It was added that birth in coparcenary creates interest & hence, giving effect to the decision of Prakash v. Phulavati would be ‘arbitrary and non-est’ in the eyes of law.
Major arguments supporting the prospective nature of the amendment are as follows –
a) Nature of the amendment: It was argued that the amendment is prospective in nature. To substantiate this argument, it has been stated that there is no conflict between the decisions taken in Prakash v. Phulavati & Danamma @Suman Surpur and Anr v. Amar and that both the cases have held the provision under section 6 to be prospective. It was also added that the coparcenary rights conferred upon the daughters are not by virtue of their birth, but due to an amendment made in the Hindu Succession Act.
b) It was also been argued that a daughter’s claim can succeed only in the interest of living father coparcener as on the date of enforcement of the Amendment Act. The said argument has been made on the premise that once the father dies, his coparcenary interest merges in the surviving coparcenary. Keeping this in mind, if the father coparcener has died before 2005, his coparcenary interest has already merged into the surviving coparcenary. As a consequence, there is no coparcener alive, from whom the daughter may succeed.
c) Further, it had also been argued that if the daughter is treated as coparcener at any point of time in the past before the amendment, the same will bring in enormous uncertainty in the working of the law and it has not been intended by the parliament. The intention of the parliament is said to be ‘forward looking’.
d) Another major argument had been made on the lines of the rule of survivorship. It was contended that the status of a coparcener is a creation of law commencing with birth and ending with death or by severance of such status by way of partition or statutory fiction. The status of coparcenary ceases on death and hence, the daughter cannot succeed if the father was not alive on the date of commencement of the amendment as the coparcenary interest had already devolved into the surviving coparceners. Hence, section 6 is not applicable to a daughter whose father died before the commencement of the Amendment Act of 2005.
Discussion in the judgment:
In the judgment, the court discusses various aspects of Hindu law in general and Mitakshara school of Hindu law in particular. After a thorough discussion of various aspects of coparcenary rights, the court observes that the unobstructed heritage takes place by birth, while the obstructed heritage depends upon the death of the owner of the property. Based on this, the court points out that under Section 6, the rights are conferred by birth and are unobstructed heritage. Hence, the father need not be alive on the date of amendment for the provision to be made applicable.
Further the court analyzes the original and the amended text of Section 6 in the light of ‘Statement of Objects and Reasons’ behind the introduction of Amendment Bill. In light of this, the court concluded that 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. The court also added that under the amended Section 6, since the right is given by birth, i.e., an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act.
The court further observes that the provisions contained in Section 6(4) also make it clear that provisions of Section 6 are not retrospective in nature as the rights and liabilities are both from the commencement of the Amendment Act. The judgment also lays down that a daughter born before the commencement of the Amendment Act can claim her coparcenary interests only after the date of amendment and any claim which was made before that date would not be valid.
The judgment clarifies that in case a living coparcener dies after the commencement of the Amendment Act, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted Section 6(3).
Additionally, the statutory fiction of partition as created by the Proviso to Section 6 has also been discussed in the judgment. The court concludes that the said statutory fiction did not bring about any disruption of coparcenary or partition. The purpose behind the said provision was just to ascertain the share of the deceased coparcener when he was survived by a female heir of class I as specified under Schedule to the Act of 1956 or any male relative of such female. Hence, the proviso does not disrupt or affect the coparcenary rights of a daughter.
Further, the court has also dealt with the issue arising due to ‘survivorship’ in detail. It has been pointed out that survivorship was abrogated by the Amendment of 2005. The court also adds that survivorship is a mode of succession, not that of the formation of a coparcenary. Hence, on the basis of this premise, the court concludes that the rule of survivorship does not affect any coparcenary rights of a daughter.
Impact of the judgment on applicability of Section 6
In this case, the judiciary has adopted a broader view, thereby expanding the meaning of Section 6 in order to promote equal rights for both sons and daughters. The present judgment has answered a number of issues related to the applicability of Section 6. The Hon’ble Supreme Court has finally put the ambiguity regarding the applicability of this provision at rest. This present judgment overrules the case of Prakash v. Phulavati and partly overrules the views expressed in the case of Danamma @Suman Surpur and Anr v. Amar. It also echoes the principle of gender equality in its broad sense. Some of the practical implications are as follows-
The judgment declares section 6 as retroactive in nature.
The judgment clarifies that the Amendment Act confers coparcenary status on the daughter (of a coparcener daughter) born before or after the amendment (irrespective of their marital status) in the same manner as the son, with same liabilities and rights. This not only makes the position of law clear, but also promotes the principle of gender equality.
The coparcenary claims made under Section 6 by a daughter prior to the commencement of the Amendment Act are not valid. The claims made after the said date are valid as per the judgment.
Death of the father before the commencement of the Amendment Act, 2005 does not affect the coparcenary rights of the daughter under Section 6.
The judgment also states that a plea of oral partition cannot be accepted as a statutorily recognized mode of partition under section 6(5). The court chalks down an exception to this rule as well and says that a plea of oral partition can be accepted if it is supported by public documents. However, a plea of oral partition alone cannot be accepted.
However interestingly, Mitakshara School of Hindu law allows coparceners to hold the position of ‘karta’ of a Hindu household. A combined reading of the 2005 amendment and this judgment implies that a daughter can also be appointed as a karta. In 2015 judgment of Sujata Sharma v. Manu Gupta[3], the Delhi High Court reached to a conclusion that daughters, irrespective of their marital status, can be appointed as karta of a hindu household. However, this view still awaits a Supreme Court judgment.
This case analysis is authored by Ms. Nimisha Srivastava, a fifth-year student pursuing B.A. LL.B. from National Law University, Orrisa, during her online internship with S&D Legal Associates.