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TOPIC: CASE LAW ANALYSIS[VINEETA SHARMA vs. RAKESH SHARMA & ORS]SUBJECT: FAMILY LAW-II [D+TD]SUBJECT CODE: LAW 4104SUBMITTED BY:NAME: M.S NIKAASH (19BLB1088)COURSE: 3RD YEAR BBA LLB (HONS.)UNIVERSITY: VITSOLCase AnalysisVINEETA SHARMA vs. RAKESH SHARMA & ORS Civil Appeal No. DiaryNo Of 2018F...

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TOPIC: CASE LAW ANALYSIS [VINEETA SHARMA vs. RAKESH SHARMA & ORS] SUBJECT: FAMILY LAW-II [D+TD] SUBJECT CODE: LAW 4104

SUBMITTED BY: NAME: M.S.SANJAY NIKAASH (19BLB1088) COURSE: 3RD YEAR BBA LLB (HONS.) UNIVERSITY: VITSOL

Case Analysis VINEETA SHARMA vs. RAKESH SHARMA & ORS Civil Appeal No. Diary No.32601 Of 2018 Facts: The Hindu Succession Act, 1956 (Act of 1956) was enacted to amend and codify laws relating to intestate succession among Hindus and brought about changes with respect to succession and also conferred on women certain right which until then was not in existence. Further, the Act of 1956 also recognized, under Section 6, the special right of male coparceners of a Hindu Coparcenary to inherit by birth over the coparcenary property and laid down rules for succession among the coparceners. This, however, was discriminatory in terms of gender and also negation of constitutional right of equality, in so far as the daughter of a coparcener was concerned. In order to do away with discrimination, the Parliament passed the Hindu Succession (Amendment) Act of 2005 (Act of 2005), which came into effect from 09.09.2005, whereby Section 6 of the Act of 1956 was substituted and recognized the daughter of coparcener to be on par with that of a son, and conferred on her rights by birth on the coparcenary property, however, with a proviso that conferment of such right on a daughter shall not affect or invalidate any disposition or alienation, partition or testamentary disposition of property took place before 20.12.2004. After the amendment Act of 2005, a Division bench of the Hon’ble Supreme Court of India, in the case of Prakash & Others Vs. Phulavati & Others, (2016) 2 SCC 36, held that the Act of 2005 is prospective in nature and that rights conferred on daughter, under Section 6 of the Act of 2005, is on the living daughter of a living coparcener, requiring the coparcener to be alive as on 09.09.2005 so as to enable the daughter to claim rights over the coparcenary property. In the said case, the coparcener had died prior to 2005 amendment and hence, it was held that the daughter is not entitled to a share in the coparcenary property as she is not the daughter of a living coparcener. In a subsequent judgement of a Division bench of the Hon’ble Supreme Court of India, in the case of Danamma @ Suman Surpur & Another Vs. Amar & Others, (2018) 3 SCC 343, although the Court did not specifically deal with the concept of living daughter of a living coparcener, the Court took a contradicting view from that of decision in Phulavati case and held

that daughters have equal rights in the coparcenary property as that of son, even though the coparcener had died before the amendment of 2005. In the an appeal under analysis herein, i.e., in Vineeta Sharma v. Rakesh Sharma & Others, similar questions were raised before the Hon’ble Supreme Court, and considering the contradicting view expressed by the Hon’ble Supreme Court in the above mentioned two decisions, i.e., Phulavati case and Danamma case, the issue was referred to a larger bench constituting three judges of the Hon’ble Supreme Court.

Issues Raised: 1. Whether the amended Section 6 of the Act of 2005 requires the coparcener to be alive as on 09.09.2020, for the daughter to claim rights in the coparcenary property? 2. Whether the amended Section 6 of the Act of 2005 is prospective, retrospective or retroactive? 3. Whether a daughter born before 9 November 2005 can claim equal rights and liabilities in coparcenary as that of a son? 4. Whether the statutory fiction of partition created by proviso to section 6 of the hind succession act, 1956 as originally enacted bring about the actual partition or disruption of coparcenary? 5. Whether a plea of oral partition after 20 December 2004 can be accepted as the statutory recognized mode of partition?

Judgement: The court, based on authorities and past judgments passed by it, observed that joint Hindu family property is unobstructed heritage. In this type of property the right of partition is absolute and given to a person by the virtue of his/her birth. In contrast, separate property is obstructed heritage in which right to ownership and partition is obstructed by the death of the owner of the separate property. In case of obstructed heritage right is not by birth but depends upon the death of the original owner of the separate property. Based on these observations the apex court decided as the right to partition is created by the birth of the daughter (unobstructed heritage), it is immaterial if the father coparcener was alive or dead on the date in which the amendment was

effected. Hence it overruled the verdict given in Phulvati vs prakash and ruled that the coparcenary rights pass from father to a living daughter and not from a living coparcener to a living daughter. The court, overruling the phulvati and dannmma judgement, ruled that the effects of the provisions of section 6 are neither prospective in nature nor retrospective; but it is retroactive in nature. The concept is explained by the Apex court and means that the equal right of coparcenary will be given to daughter on and from 9 November 2005 but it is based upon some past event i.e. the birth of the daughter. The effects are retroactive as if the daughter never took birth, which is in past, the rights would never have existed in the first place. This approach of the court cleared the lacuna in law as to what effect, in relevance to time, these provisions have. The court also held that notional partition doesn’t mean that actual partition has been effectuated. As notional partition is a legal fiction, it should be used and implied up to a certain limit and to only fulfil the purpose it was created for. In this case, a notional partition is created as to ascertain the share of each coparcener of the joint Hindu family. The court reiterated that the ascertainment of the shares distributed and fixated upon notional partition are not final, as the birth of a new coparcener or the death of any existing coparcener can either increase of decrease the shares of the other coparceners. It also ruled that, consequentially, a daughter can claim a share in the joint family property even if notional partition is done before 9 November 2005 as the notional partition is not an actual partition and just because of it, the coparcenary property doesn ’t cease to exist. Further, answering the question raised by the defendant, that section 97 of the code of civil procedure says that if a suit is not filed by any of the parties contending the preliminary decree in finite time, then the preliminary decree is deemed to be final, supreme court said that in this case it is mentioned in the section that if the parties do not file a suit then the abovementioned section is applicable but not if a third person is involved. Court, based upon past verdicts, also said that a preliminary decree is not final and even after the preliminary decree is only passed to ascertain the shares of individual coparceners. It is the final decree that effectuates an actual partition. It was reiterated that even after a preliminary decree is passed, the quantification of shares may change subject to birth of a new member or death of any existing member. They highlighted the fact that it was nowhere mentioned in the civil procedure code that multiple preliminary decrees

cannot be passed. Taking into consideration all the above reasoning, the apex court decided that even if a preliminary decree has been passed by a court, it is the duty of a court to take into consideration any amendments in the law before issuing the final decree and as a result a daughter can claim coparcenary rights even after a preliminary decree has been passed on that matter. The most significant statement used by the court in this regard is a preliminary decree is not final by metes and bounds. The court observed that the legislation is clear in terms that any partition effectuated before 20 December 2004 will not be invalidated by the effects of the amended provisions. But it found it necessary, to evade bogus and fake partition just to deprive the daughter of its equal rights, the partitions completed after the on and after 20 December 2004 should be a genuine one. To check the same, the court held that any partition effectuated after 20 December 2004 must be a registered one or a partition effectuated by a decree of the court, and as settled earlier it should be a final decree. The court also ruled that an oral partition cannot be claimed as a defence, if the partition effectuated is not so, following the above mentioned courses. The court opined that this is a general rule, although, some of the oral partitions may be genuine too and in those cases an exception can be made. But the liability of proof will be heavy on the defence to prove the genuineness of the oral partition.

Analysis: The case emphasizes the character of the 2005 change in sec 6 HSA. The change applies retroactively to offer advantages conditional springing up even earlier than the passing of such legislation. While explaining the idea of retroactive software of sec 6 publish change, it lets in Daughters to have the identical advantage of succession as a son from her birth. So the prison friction created according to with the notional partition to check the quantity of proportion claimed with inside the unamended Act isn't always tormented by the change. The impact of amended may be visible in a way that any motion triggering partition earlier than change simplest influences the quantity of proportion, now no longer the proper to say. In different words, if the partition is crystallized no extra could be executed in appreciation of change however if the partition isn’t executed the daughter’s proper to say to stay intact. In this situation

the judgment emphasized no matter the survivorship of the father, the Daughter gathers the proper coparcener from the start and different associated rights. While giving an opposite view from Prakash v. Phulavati case, The Hon’ble Court held that no matter the lifestyles of the father, daughter get her proper as coparceners In the Prakash v. Phulavati case, the courtroom docket had held that the notional partition prescribed through the proviso to Section 6 of the unamended Act ends in severance of coparcenary belongings with inside the occasion of the predecessor coparcener’s death previous to the 2005 change and consequently no coparcenary belongings are left to be had to be partitioned on the fingers of the daughter claiming beneath the 2005 change. However, withinside the Vineeta Sharma case, the Apex Court concluded that the notional partition prescribed through the stated proviso to Section 6 is meant simplest have an effect on the computation of the percentage of the deceased coparcener while he becomes survived through a woman inheritor (as laid out in Class I of the Schedule to the Act) or through a male family member of such woman inheritor and such notional partition does now no longer sooner or later decide the rights and liabilities of the male and woman successors itself, that may simplest be undertaken both thru a registered partition deed or thru a decree of partition drawn through courtroom docket. Contrary to the belief of the Apex Court with inside the Prakash v. Phulavati verdict, with inside the Vineeta Sharma judgment, the Apex Court has held that during the view of the specific language of Section 6 (1) (a), the requirement for a woman successor to say coparcenary rights isn't always in any respect dependent at the predecessor coparcener being alive as at the date the 2005 change comes into force. The purpose of Section 6 of the Amended Act is to raise the character of the woman successor’s proper to succession from that of obstructed history to unobstructed history, which the courtroom docket had now no longer taken into consideration with inside the Prakash v. Phulavati case. The Larger Bench of the Supreme Court, in the above Appeals, have referred to various concepts of Hindu Law, both codified and customary, being concepts such as Coparcenary and Joint Hindu Family and unobstructed and obstructed heritage, and also referring to catena of Judgements, came to a finding, at paragraph No.44 of the Judgement, that coparcener father need not be alive as 09.09.2005 in order for a daughter to inherit rights over the coparcenary property, as per the Amended Section 6. Explaining obstructed and unobstructed heritage, the Hon’ble Supreme Court held that the unobstructed heritage takes place by birth, whereas the obstructed heritage takes place after the death of the owner. The Hon’ble Supreme Court further went on to

hold that under Section 6, right is given by birth, making it an unobstructed heritage, and therefore coparcener father need be alive as on 09.09.2005 in order for the daughter to inherits rights over the coparcenary property. The Court also added that the concept of uncodified Hindu Law of unobstructed heritage has been given a concrete shape under the provisions of Section 6(1) (a) and 6(1) (b) and that the coparcenary right is by birth and therefore, it is not at all necessary that the father of the daughter be living as on the date of the amendment, since she had not been conferred with the rights of coparcener by obstructed heritage. As such, the Hon’ble Supreme Court did not consider decision in Phulavati case to be a good decision in so far as this aspect is concerned.

As regards the applicability of the amended section 6 to be retrospective or prospective, the Hon’ble Supreme Court held that the amended Section 6 is retroactive in nature. Explaining the concepts of prospectively, retrospectivity and retroactivity, the Hon’ble Supreme Court held that the operation of retroactive statute operates based on a characteristic or event which happened in the past or requisites which had been drawn from antecedent event. The Court further opined that Section 6(1) (a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth and since the right is given by birth, that is an antecedent event, and provisions operate on and from the date of the Amendment Act, making it retroactive. The Court also added that the provision contained in Section 6(4) makes it clear that the provisions of Section 6 are not retrospective.

Conclusion: Among other issues answered by the Hon’ble Supreme Court in the above case, the following were answered: 

The right conferred on a daughter, in the coparcenary property is by birth and hence, it is not necessary that the father be alive as on 09.09.2005. As such, the decision in Phulavati case is overruled and the decision in Danamma case is partly overruled to the effect where it said that the coparcener father has to be alive as on 09.09.2005.



The amendment by way substitution of Section 6 of Act of 2005 is retroactive in nature....