By Mukul Atre
A joint Hindu family means all people lineally descending from a common ancestor, including wives and unmarried daughters. But a Hindu coparcenary is a much narrower group. It consists of the ‘propositus’ (the person from whom a line of descent is traced) and three of his descendants.
Coparcenary property is the one which is inherited by a Hindu man from his father, grandfather, or great grandfather. The property in coparcenary is held as joint owners, and only a coparcener has a right to demand a partition of this property.
Before 2005, the coparceners included only sons, grandsons, and great grandsons who are holders of a joint property. But the 2005 amendment to Section 6 of the Hindu Succession Act essentially gave equal rights to daughters in ancestral property. So the amendment allowed daughters to be recognised as coparceners by birth in the family, similar to sons.
CONFLICTING JUDGMENTS EARLIER
In a 2015 case of Prakash v. Phulavati[1], a two-judge bench had held that if the coparcener (father) had passed away prior to 9 September 2005 (date on which the amendment came into effect), his daughter would have no right to the coparcenary property. However, in the case of Danamma v. Amar[2] in 2018, another two-judge bench had held that the two daughters in this matter would get a share in the property, even if their father had passed away in 2001.
A three-judge bench headed by Justice A.K. Sikri had taken note of these conflicting judgments in November 2018 and decided that a three-judge bench should settle the law.
‘UNOBSTRUCTED HERITAGE’
The Supreme Court in its latest judgement noted that Section 6 of the Hindu Succession Act gives an “unobstructed heritage” (i.e. a right by birth) to the daughter, noting that a coparcener’s father need not be alive on 9 September 2005. “Coparcener’s right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage,” the court explained.
However, it clarified that the daughter born before 9 September 2005 can only claim her rights with effect from the date of the amendment, and any transaction relating to the property before 20 December 2004, when the Bill was tabled before Rajya Sabha, will not be disturbed. This is according to the amended Section 6(1) of the Act.
ORAL PARTITION NOT ACCEPTABLE
Before the amendment in 2005, an oral partition was permissible, with the burden of proof on the person who claims there was a verbal division. But the amended Section 6 (5) of the Hindu Succession Act says a “partition” can be effected by any registered deed or a court decree.
It was argued in the top court that the need for a registered partition deed was not mandatory. But the court noted that section 6 intends to ensure daughters are not deprived of their rights of obtaining their share on becoming a coparcener. “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 an unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognised under section 6(5),” it observed. The court, therefore, ruled that a plea of oral partition cannot be legally accepted. However, it may be accepted in exceptional circumstances if it is supported by public documents.
STATUTORY FICTION OF PARTITION
The earlier section 6 also created what is called a “statutory fiction of partition” — a complex mechanism to ascertain the rights of a man’s surviving family members if he died leaving behind a female relative in Class I of the Schedule (for example, a daughter, widow, mother etc).
In such a case, the earlier law said property share had to be calculated by imagining that a partition took place immediately before a man’s death. This was done because women did not have a share in the coparcenary property but were entitled to a share of the interest of the dead coparcener (for example, a father or husband) in the property.
The court has now held that this “statutory fiction of partition” did not bring about an actual partition. Irrespective of any such statutory fiction of partition having taken place before the amendment, the new provision will have to be implemented in any pending proceedings or appeal.
POST-VERDICT ACTIONS
The Supreme Court also noted that several suits and appeals across the country were pending before high courts and subordinate courts because it was looking at the issue. “The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by section 6,” the court noted.
It also requested these courts to decide all pending matters, as far as possible, within six months.
[1]CIVIL APPEAL NO.7217 OF 2013
[2] AIR 2018 SC 721