Daughters have coparcenary rights by birth even if father not alive on 9.9.2005

Daughters have coparcenary rights from birth even if father not alive on commencement of Hindu Hindu Succession (Amendment) Act 2005  i.e. 9.9.2005

ABACUS Case Law Citation
ABCAUS 3361 (2020) (08) SC

Important case law relied upon by the parties:
Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36
Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343.  
Lokmani & Ors. v. Mahadevamma & Ors.
Balchandra v. Smt. Poonam & Ors
Sistia Sarada Devi v. Uppaluri Hari Narayana & Ors.
Girijavva v. Kumar Hanmantagouda & Ors.
V.L. Jayalakshmi v. V.L. Balakrishna & Ors.
Indubai v. Yadavrao

In a batch of civil appeals before the Apex Court, the question involved the interpretation of   section 6 of the Hindu Succession Act, 1956 (1956 Act) as amended by Hindu Succession (Amendment) Act, 2005 (2005 Act) had been referred to a Full Bench in view of conflicting verdicts given in two Division Bench judgments of the Hon’ble Supreme Court.

Earlier, a Division Bench of the Hon’ble Supreme Court had 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 the 2005 Act. i.e 9.9.2005. Also that the registration requirement is inapplicable to partition of  property by operation of law, which has to be given full effect.

In contrast to the above, another Division Bench had 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. In the said case, the 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 a piece.

The arguments of the Union of India was that 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 birth right.

It was also contended that 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.

Difference between Coparcenary and Joint Hindu Family

The Hon’ble High Court stated that a joint Hindu family is a larger body than a Hindu coparcenary. A joint Hindu family consists of all persons lineally descended from a common ancestor and include their wives and unmarried daughters. The daughter, on marriage, ceases to be a member of her father’s family and becomes a member of her husband’s family. Whereas, a Hindu coparcenary is a much narrower body. It   consists of propositus and three lineal descendants.

The Hon’ble Supreme Court stated that the basic concept of coparcenary is based upon common ownership by coparceners. Coparcenary property is the one which is inherited by a Hindu from his father, grandfather, or great grandfather. Another   method   to   be   a coparcener is by way of adoption.

The Hon’ble Supreme Court stated that earlier, a woman could not be a coparcener, but she could still be a joint family member. By substituted section 6 with effect from 9.9.2005   daughters are recognised as coparceners in their rights, by birth in the family like a son.

The Apex Court also explained that the test of coparcenary is if a person can demand a partition, he is a coparcener not otherwise. Great great ­grandson cannot demand a partition as he is not a coparcener. In a case out of three male descendants, one or other has died, the last holder, even a fifth descendant, can claim partition. In case they are alive, he is excluded.

The Court stated that in case   coparcenary   property   comes   to the hands of a ‘single person’ temporarily, it would be treated as his property, but once a son is born, coparcenary would revive in terms of the Mitakshara law.

The share is not defined in coparcenary. It keeps on fluctuating on death and birth in the family. It is only on actual partition a coparcener becomes entitled to a definite share.

The Hon’ble Supreme Court stated that Section 6 deals with devolution of interest in coparcenary property of a joint Hindu family governed by the Mitakshara law. The originally enacted   provision of section 6 excluded the rule of succession concerning Mitakshara coparcenary property. Though the widow or daughter could claim a share, being a Class I heir in the property left by the deceased coparcener, and a widow was entitled, having a right to claim a share in the event of partition daughter was not treated as a coparcener.

By substituting the provisions of section 6 by Amendment Act, 2005. The daughter is treated as a coparcener in the same manner as a son by birth with the same rights in coparcenary property and liabilities and she can claim partition also,. However, the proviso of sub­ section (1)   contains a non ­obstante clause providing that nothing  contained in the sub­section shall affect or invalidate any  disposition or  alienation  including  any partition or testamentary disposition of the property which had taken place before 20.12.2004.

According to the Court, the coparcenary must exist on 9.9.2005 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.

The Hon’ble Supreme Court rejected the argument 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.  

The Hon’ble Supreme Court stated 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.

According to the Court, 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 earlier law, an oral partition was recognised. Due to 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 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 Hon’ble Supreme Court reiterated 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.

The Hon’ble Supreme Court stated that the intendment of amended Section 6 is to ensure that daughters are not   deprived of their rights of obtaining share on becoming   coparcener and claiming a partition of the   coparcenary property by setting up the frivolous defence of oral partition and/or recorded in the unregistered memorandum of partition.     The Court has to keep in mind the possibility that a plea of oral partition may be set up, fraudulently or in collusion, or based on unregistered memorandum of partition which may also be created at any point of time.  Such a partition is not recognized under Section 6(5).

Daughters have coparcenary rights even if father not alive on commencement of Hindu Hindu Succession (Amendment) Act 2005

The conclusions reached by the Hon’ble Supreme Court were 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.

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