The Supreme Court of India in its recent landmark judgment in Vineeta Sharma v. Rakesh Sharma & Ors, lays down the law qua a woman’s right to the ancestral property of a Hindu Undivided Family (HUF).The customary laws created rights only in favour of male descendants, which was codified by the Hindu Succession Act, 1956 (Act). However, pursuant to the 2005 Amendment of the Act, female descendant’s equal rights to ancestral property were also recognized. This landmark judgment further lays down that these rights can be claimed by the daughter even if her father had died before 9 September 2005, which is the date on which the amendment granting equal rights to the daughter under Act came into effect.

This update analyses the Hon`ble Supreme Court Judgment.

BACKGROUND OF CASE

 

• Earlier, the Mitakshara School of Hindu law codified as the Act governed the succession and inheritance of the ancestral property. The Act only recognized male descendants as legal heirs and female descendants were not considered as coparceners or an heir to the ancestral property.
   
• The Section 6 of the Act provided for the devolution of interest in a coparcenary property of a person who died intestate. The law provided that when a person dies intestate, the coparcenary property will devolve only to his male heirs including his sons, grandsons and great-grandsons.
   
• To correct this historical gender discrimination, the Act was amended in September2005 (2005 Amendment) and the female descendants were duly recognized as coparceners for the purpose of the partition of property post the amendment. Further, Section 6 of the Act was amended in 2005 to recognize a female descendant of a coparcener as a coparcener herself by birth, in her own right, in the same manner as the male descendant.
   
• It also gave the female descendant the same rights and liabilities in the coparcener`s property as she would have had if she had been a male descendant.
   
• Vineeta Sharma, the Appellant, had filed a suit demanding her share as a coparcener before the Delhi High Court. Although the 2005 Amendment granted equal rights to female descendants, the issue raised in several cases was whether, this law is to be applied retrospectively, and if the rights of the female descendants depended on whether their father through whom they would inherit, was alive on the date of the amendment or not. Different benches of the Supreme Court and the High Courts had taken conflicting views on the issue.
   
• This raised a very important issue before the court whether the 2005 Amendment, which gave equals rights to the female descendants in the ancestral property, was applicable retrospectively or only prospectively.

SUPREME COURT HELD:

 

• The Supreme Court expounded on the 2005 Amendment which removed the gender discrimination as contained in Section 6 of the Hindu Succession Act, 1956, by giving equal rights to female descendants.
   
• Under Section 6 a right to an “unobstructed heritage” is created by virtue of the birth of the daughter of the coparcener, the right cannot be limited by whether the coparcener is alive or deceased when the right is operational. An obstructed heritage depends upon the owner`s death, but an unobstructed heritage does not depend upon the death of the owner. Thus, the coparcener father need not be alive on 9 September 2005, the date of amendment of provisions of Section 6 of the Act.
   
• It also stated that the conferral of a right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, with effect from 9 September 2005, the provisions are of retroactive application, they confer benefits based on the antecedent event and the Mitakshara coparcenary shall be deemed to include a reference to a daughter as a coparcener.
   
• The Supreme Court, further clarified that the above rule may not be applicable to the partition that may have taken place earlier, either by way of a registered deed or by court decree. It observed that the intention of the legislature behind creating the above exception was to not re-open matters which were already closed or to take away rights which had already vested by way of actual partition.
   
• The Supreme Court explained that if a partition deed has been executed and registered but no effect has been given to the same nor has it been acted upon, the joint family property in question cannot be said to have been partitioned. Therefore if the statutory provision of partition created by proviso to Section 6 of the Act, as originally enacted, did not bring about the actual partition or disruption of legal right. Then daughters are also to be given equal share as that of a son.
   
• Oral partition cannot be accepted as a statutorily recognised mode of partition.
   
• It also provided for the distinction between the terms prospective, retrospective and retroactive application of various laws.
   
• It also directed the High Courts to dispose of cases involving this issue within six months since they would have been pending for years.

MHCO Comment:

This landmark judgment is an excellent specimen of the progressive and gender sensitive outlook of the Indian Judiciary. This landmark judgment recognizes that women who have been deprived of an equal share of their deceased father`s ancestral property will now have the right to claim their due. Further, it also upheld the fundamental right to equality under the Indian Constitution in its truest sense.

This update was released on 19 Aug 2020.

The views expressed in this update are personal and should not be construed as any legal advice. Please contact us directly on +91 22 40565252 or legalupdates@mhcolaw.com for any assistance.

Legal Update Team
MANSUKHLAL HIRALAL & COMPANY
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