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SUPREME COURT OF INDIA
ARUN MISHRA, S. ABDUL NAZEER, M.R. SHAH, JJ.
Vineeta Sharma – Appellant
Versus
Rakesh Sharma and Others – Respondents
Civil Appeal No......Diary No. 32601 of 2018, Special Leave Petition (C) Nos. 35994 of 2015, 684, 38542 of 2016, 6403, 14353, 24901 of 2019, 1766-1767 of 2020
Decided On : 11-08-2020
(A) Hindu Succession Act, 1956 – Section 6 (As amended by Hindu Succession (Amendment) Act, 2005) – Female Hindu succession – Rights of daughters – Provisions contained in substituted Section 6 of Hindu Succession Act, 1956 confer status of coparcener on daughter born before or after amendment in same manner as son with same rights and liabilities – Rights can be claimed by daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004 – Since right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005 – Statutory fiction of partition created by proviso to Section 6 of Hindu Succession Act, 1956 as originally enacted did not bring about actual partition or disruption of coparcenary – Fiction was only for the purpose of ascertaining share of deceased coparcener when he was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 Schedule to Act of 1956 or male relative of such female – Provisions of substituted Section 6 are required to be given full effect – Notwithstanding that a preliminary decree has been passed daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal – In view of rigor of provisions of Explanation to Section 6(5) of Act of 1956, plea of oral partition cannot be accepted as statutory recognised mode of partition effected by a deed of partition duly registered under provisions of 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 same manner as if it had been affected by a decree of a court, it may be accepted – Plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly. (Para 129)
(B) Hindu Succession Act, 1956 – Section 6 (As amended by Hindu Succession (Amendment) Act, 2005) – Female Hindu succession – Rights of daughters – When a daughter who is claiming and demanding a share in coparcenary, is alive, there is no difficulty of interpretation, irrespective of fact whether a coparcener has died before commencement of Amendment Act – Coparcener and daughter do not need to be alive as on date of amendment – If it is to be interpreted that coparcener and daughter both should be alive, it will defeat very purpose and objective of amended provisions – Earlier, provisions of Hindu law treated a son as a coparcener by birth; now, daughters are given same rights since birth – In case partition has been effected by metes and bounds and is adequately proved, then daughter of coparcenary cannot seek partition of already divided property. (Para 17)
(C) Hindu Succession Act, 1956 – Section 6 (As amended by Hindu Succession (Amendment) Act, 2005) – Female Hindu succession – Rights of daughters – Unobstructed heritage takes place by birth and obstructed heritage takes place after death of owner – Under Section 6 by birth, right is given that is called unobstructed heritage – It is not obstructed heritage depending upon owner's death – Coparcener father need not be alive on 9.9.2005, date of substitution of provisions of Section 6 – Though widow or daughter could claim a share, being a Class I heir in property left by 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 – Goal of gender justice as constitutionally envisaged is achieved though belatedly and discrimination made is taken care of by substituting provisions of Section 6 by Amendment Act, 2005 – Daughter is treated as a coparcener in same manner as a son by birth with same rights in coparcenary property and liabilities – Discrimination with daughter has been done away with and they have been provided equal treatment in matter of inheritance with Mitakshara coparcenary – Under amended Section 6, since right is given by birth, that is an antecedent event, and provisions operate concerning claiming rights on and from date of Amendment Act. (Paras 44, 49, 51, 52 and 56)
(D) Hindu Succession Act, 1956 – Section 6 (As amended by Hindu Succession (Amendment) Act, 2005) – Female Hindu succession – Rights of daughters – Considering principle of coparcenary that a person is conferred rights in Mitakshara coparcenary by birth, similarly, daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son – Expression used in Section 6 is that she becomes coparcener in same manner as a Son – By adoption also, status of coparcener can be conferred – Concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under provisions of Section 6(1)(a) and 6(1) (b) – Coparcener right is by birth – It is not at all necessary that father of daughter should be living as on date of amendment as she has not been conferred rights of a coparcener by obstructed heritage – Effect of amendment is that a daughter is made coparcener, with effect from date of amendment and she can claim partition also which is a necessary concomitant of coparcenary – Section 6(1) recognises a joint Hindu family governed by Mitakshara law – Coparcenary must exist on 9.9.2005 to enable daughter of a coparcener to enjoy rights conferred on her – As right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with rights is alive or not – Conferral is not based on death of a father or other coparcener – In case living coparcener dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted Section 6(3). (Paras 63 and 64)
(E) Hindu Law – Creation of Coparcenary – It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends – Survivorship is mode of succession, not that of formation of a coparcenary – Right to claim partition is a significant basic feature of coparcenary, and a coparcener is one who can claim partition – Daughter has now become entitled to claim partition of coparcenary w.e.f. 9.9.2005, which is a vital change brought about by statute – A coparcener enjoys right to seek severance of status – Under Section 6(1) and 6(2), rights of a daughter are pari passu with a son – In eventuality of a partition, apart from sons and daughters, wife of coparcener is also entitled to an equal share – Right of wife of a coparcener to claim her right in property is in no way taken away. (Paras 75 and 79)
(F) Hindu Law – Coparcenary – Alienation and Partition – Without partition, only undivided share can be sold but not specific property nor joint possession can be disrupted by such alienation – Whether consent of other coparcener is required for sale or not, depends upon by which School of Mitakshara law, parties are governed – Concept of partition that legislature had in mind could not be equated with a mere severance of status of joint family which could be effected by an expression of a mere desire by a family member to do so – Once constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actual partition – Shares will have to be determined in changed scenario – Severance of status cannot come in way to give effect to statutory provision and change by subsequent event – Statutory fiction of partition is far short of actual partition, it does not bring about disruption of joint family or that of coparcenary is a settled proposition of law – Mere severance of status by way of filing a suit does not bring about partition and till date of final decree, change in law and changes due to subsequent event can be taken into consideration. (Paras 81, 90 and 99)
(G) Hindu Law – Partition – Cesser of Commonality is not conclusive proof of partition, merely by reason that members are separated in food and residence for convenience and separate residence at different places due to service or otherwise does not show separation – Several acts, though not conclusive proof of partition, may lead to that conclusion in conjunction with various other facts such as separate occupation of portions, division of income of joint property, definement of shares in joint property in revenue of land registration records, mutual transactions – There is a general presumption that every Hindu family is presumed to be joint unless contrary is proved – It is open even if one coparcener has separated, to non-separating members to remain joint and to enjoy as members of a joint family – No express agreement is required to remain joint – It may be inferred from how their family business was carried on after one coparcener was separated from them – Whether there was a separation of one coparcener from all other members of a joint family by a decree of partition, decree alone should be looked at to determine the question. (Paras 122 and 123)
(H) Hindu Succession Act, 1956 – Section 6 (As amended by Hindu Succession (Amendment) Act, 2005) – Female Hindu succession – Rights of daughters – 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 coparcenary property by setting up frivolous defence of oral partition and/or recorded in unregistered memorandum of partition – Court has to keep in mind 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) – Protection of rights of daughters as coparcener is envisaged in substituted Section 6 of Act of 1956 – Section 6 of Act of 1956 recognises partition brought about by a decree of a court or effected by a registered instrument – Intendment of provisions is not to jeopardise interest of daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive daughter of her right as coparcener and prevent nullifying benefit flowing from provisions as substituted. (Paras 116, 126 and 127)
(I) Statute Law – Operation of Statute – Prospective statute operates from date of its enactment conferring new rights – Retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws – A retroactive statute is one that does not operate retrospectively – It operates in futuro – However, its operation is based upon character or status that arose earlier – Characteristic or event which happened in past or requisites which had been drawn from antecedent events. (Para 56)
Facts of the case:
The question concerning the interpretation of section 6 of Hindu Succession Act, 1956, as amended by Hindu Succession (Amendment) Act, 2005, has been referred to a larger Bench in view of conflicting verdicts rendered in two Division Bench judgments of this Court in Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343. In other connected matters, question involved is similar; as such, they have also been referred for hearing along.
Findings of Court:
The intendment of the provisions is not to jeopardise 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 law that prevailed earlier, an oral partition was recognised. In view of 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 provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards.
Result : Reference answered.
The core definition of partition under the relevant legal provisions is that it constitutes an adjustment or redistribution of pre-existing rights among the co-owners or coparceners, resulting in the division of the property into separate shares or lots for individual ownership (!) . This process effectively terminates joint ownership and converts the undivided interest into severalty ownership for each partitioned share.
Furthermore, the law explicitly bars parties who do not have a share or interest in the property from being parties to a partition. Only those who have a share or interest in the property, such as coparceners or co-owners, can be involved in the partition proceedings (!) .
Regarding the stages of a partition suit, it is established that a preliminary decree in such a suit merely declares the shares or interests of the parties involved but does not effectuate an actual division of the property. The final partition is carried out only upon the passing of a final decree, which involves the physical division of the property by metes and bounds and the actual allotment of specific portions to the respective parties (!) (!) . Until the final decree is passed and executed, the partition remains incomplete, and the joint family or coparcenary continues to exist in law and fact.
Additionally, the proceedings in a partition suit can be revisited or amended in light of subsequent events or changes in law, even after a preliminary decree has been issued, provided that the final partition has not yet been effected. This ensures that the legal process remains flexible enough to accommodate new evidence or legal developments before the final division is finalized (!) (!) .
In summary, partition is a legal process that involves an equitable adjustment of rights among existing interest-holders, with clear restrictions on non-owners participating in the process, and it progresses through specific stages—initial declaration of shares via preliminary decree, followed by actual division through final decree—until the partition is fully effected.
JUDGMENT :
ARUN MISHRA, J.
1. The question concerning the interpretation of section 6 of the Hindu Succession Act, 1956 (in short ‘the Act of 1956’) as amended by Hindu Succession (Amendment) Act, 2005 (in short ‘the Act of 2005’) has been referred to a larger Bench in view of the conflicting verdicts rendered in two Division Bench judgments of this Court in Prakash and Others vs. Phulavati and Others, (2016) 2 SCC 36 and Danamma @ Suman Surpur and Another vs. Amar and Others, (2018) 3 SCC 343. In other connected matters, the question involved is similar, as such, they have also been referred for hearing along.
2. In the case of Lokmani and Others vs. Mahadevamma and Others, SLP (C) No. 6840 of 2016, the High Court held that section 6, as amended by the Act of 2005, is deemed to be there since 17.6.1956 when the Act of 1956 came into force, the amended provisions are given retrospective effect, when the daughters were denied right in the coparcenary property, pending proceedings are to be decided in the light of the amended provisions. Inequality has been removed. The High Court held that the oral partition and unregistered partition deeds are excluded from the definition of ‘partition’ used in the Explanation to amended Section 6(5).
3. In Balchandra vs. Smt. Poonam and Others, SLP (C) No. 35994/2015, the question raised is about the retrospectivity of section 6 as substituted by Amendment Act, 2005 and in case the father who was a coparcener in the joint Hindu family, was not alive when the Act of 2005 came into force, whether daughter would become a coparcener of joint Hindu family property.
4. In the matter of Sistia Sarada Devi vs. Uppaluri Hari Narayana and Others, SLP (C) No. 38542/2016, the question raised is where the final decree has not been passed in a suit for partition, whether the redistribution of shares can be claimed by the daughters by amended section 6, as substituted.
5. In Girijavva vs. Kumar Hanmantagouda and Others, SLP (C) No. 6403/2019, the question raised is whether section 6, as substituted, is prospective as the father died in the year 1994 and, thus, no benefit could be drawn by the daughters.
6. In Smt. V.L. Jayalakshmi vs. V.L. Balakrishna and Others, SLP (C) No. 14353/2019, the petitioner sought partition of his father's ancestral properties, and suit was filed in 2001. The trial court granted 1/7th share to all the parties. The same was modified. It was held petitioner, and daughters were entitled to only 1/35th share in the light of the decision of this Court in Prakash vs. Phulavati (supra).
7. In Indubai vs. Yadavrao, SLP (C) No. 24901/2019, a similar question has been raised. In B.K. Venkatesh vs. B.K. Padmavathi, SLP (C] Nos. 176667/2020, the daughters have been accorded equal shares in Item No. 1 of Schedule A property, that has been questioned.
8. A Division Bench of this Court in Prakash vs. Phulavati (supra) 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 Amendment Act, 9.9.2005. This Court further opined that the provision contained in the Explanation to section 6(5) provides for the requirement of partition for substituted section 6 is to be a registered one or by a decree of a court, can have no application to a statutory notional partition on the opening of succession as provided in the un-amended Section 6. The notional statutory partition is deemed to have taken place to ascertain the share of the deceased coparcener which is not covered either under the proviso to section 6(1) or section 6(5), including its Explanation. The registration requirement is inapplicable to partition of property by operation of law, which has to be given full effect. The provisions of section 6 have been held to be prospective.
9. In Danamma (supra), this Court held that the amended provisions of section 6 confer full rights upon the daughter coparcener. Any coparcener, including a daughter, can claim a partit
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