CASE ANALYSIS: VINEETA SHARMA VS RAKESH SHARMA

VINEETA SHARMA VS RAKESH SHARMA

CASE ANALYSIS:

VINEETA SHARMA VS RAKESH SHARMA

(2020) 9 SCC 1

CASE NAME: VINEETA SHARMA VS RAKESH SHARMA

CASE NUMBER: CIVIL APPEAL NO. 32601 OF 2018

DECIDED ON: 11 AUGUST 2020

BENCH: ARUN MISHRA, S. ABDUL NAZEER, MR SHAH J.J

RELEVANT SECTION: SECTION 6 OF HINDU SUCCESSION (AMENDMENT) ACT, 2005

CITATION: 2020 9 SCC 1

INTRODUCTION

The present case Vineeta Sharma vs Rakesh Sharma deals with daughter’s coparcenary right in ancestral property under Hindu Succession (Amendment) Act, 2005.

Hindu Succession (Amendment) Act, 2005was based on rule of succession in Mitakshara law and rule of survivorship which meant inheritance of ancestral property up to four generations of male lineage.

The Hindu succession amendment act 2005 did away with rule of survivorship and replaced it with rule of ‘testamentary’ and ‘intestate’ which provided daughters with coparcenary rights by birth as well.

However, it was not clear whether the provisions of this Act have retrospective effect or prospective effect. This question has been dealt in Vineeta Sharma vs Rakesh Sharma case.

The judgement has set aside the historical discrimination that women have faced and upheld the principle of equality and clarified the questions as to the applicability of then amended Hindu Succession Act.

Extending coparcenary rights to women through Hindu Succession Act, 2005 has led to achieving gender justice however there is still a lot of changes to be made as constitutional progress is not equal to social progress because in patriarchal society, women are treated as property and achieving right to property is still a long way to go.

Background

In Vinita Sharma case the main issue was that is daughter born prior to the amendment would be eligible for coparcenary rights and whether the survival of the father at the time of amendment was prerequisite for the application of the amended provision.

In Prakash vs Phulvati case the court held that the nature of the amendment is prospective and that both daughter and father should be alive at the commencement of the act in 2005 for the daughter to be recognized as the coparcener.

On the contrary in then Danamma’s case the court held that the daughters have equal rights in coparcenary property and it would apply to all daughters regardless of when their father died and if daughter is born before the amendment in 2005 can still claim the share in the ancestral property.

Facts of the case

The case involved two parties-Vineeta Sharma, the appellant and Rakesh Sharma, the respondent. Vineeta Sharma’s father passed away intestate without a will in 2001 and had left behind wife, sons, and daughter. The dispute arose over share in the ancestral property. traditionally daughters were not any rights in the ancestral property. In 2005 after amendment in section 6 of Hindu Succession Act daughters gained equal rights in the ancestral property. primary issue that emerged here was the interpretation of section 6 of the amended act. Since Vineeta’s father died before the amendment, she could not claim Coparcenary’s right in the ancestral property as High Court upheld the decision in the case, Prakash vs Phulvati, which stated that Section 6 is not retrospective in operation and required both coparcener and the daughter to be alive at the date of the amendment. So, the case eventually reached Supreme Court to resolve the ambiguity and provide clarity on the application of amended provision.

Issues before the court

· Whether father coparcener should still be alive on November 9, 2005(when the amendment was brought)?

· Whether amended section 6 of the act of 2005 prospective or retrospective or retroactive in nature?

· Whether the daughter born before 9th September 2005 can claim coparcenary rights?

Arguments

Learned solicitor general of India, Mr. Tushar Mehta, counsel on behalf of Appellant argued the following:

· That Hindu Succession Act, 2005 is retroactive in nature and not retrospective.

· The coparcener need not be alive on 9 September 2005 to affect the provisions of the act.

· Partition deed required as per Section 6(5) is to be directory and not mandatory in nature.

· Denying daughters equal rights is a violation of their fundamental right.

Arguments of Amicus Curie Shri R Venkataramani

· He argued that provisions of the act are prospective in nature and that daughter is to be given coparcenary rights only when father is alive and she does not possess this right by birth but is created by the amendment. He also argued that if daughter is treated as coparcener before the act, then that would create uncertainty and the parliament by bringing this amendment wanted it to be implement in future cases and not in past ones.

· Furthermore, he argued that there must be a living coparcener or else the daughter will have no coparcenary interest in the property.

Arguments of Amicus Curie V.V.S Rao

· Rao argued that daughters who are born before or after 2005 should be considered as coparcener and declares daughters to be coparcener by birth.

· Oral partition can be considered if it is backed by bonafide evidence and registration of partition is not mandatory.

· Only living daughter from living coparcener can inherit her share in the property.

Shri Sridhar Pota Raju, learned counsel on behalf of respondent argued the following:

· The amended act is prospective in nature.

· Daughter of the coparcener means daughter of alive coparcener and has been given this status on and from the commencement of the Act.

· A preliminary decree of partition is sufficient to effect partition.

· Relying on Uppal Uri Hari Narayan & ors, he argued that liabilities upon the daughters can be transferred only after the amendment as the provisions are not retrospective.

Arguments by Shri Amit Pai and Shri Sameer Srivastava, learned counsel

· They argued that daughters are living coparcener irrespective of the fact that father is alive or not.

· If partition has already taken place, then daughters cannot seek their share in it.

Judgement

This judgment came in because of the difference in legal interpretation given in Prakash Case and Danamma case and the larger bench in this case eradicated the lacunae in the previous cases. The judgment was authored by Arun Mishra J. where, it was stated that:

· Daughters born before or after amendment shall be deemed to be coparceners in ancestral property

· Court overruled the judgement in Prakash v Phulvati case and held that it is not necessary for becoming a coparcener or to form a coparcenary that predecessor should be alive. only condition is that coparcener should be within degrees of coparcenary.

· In substituted section 6, expression daughter by birth has been used instead of daughter of the living coparcener so daughters by birth have dame rights and liabilities in coparcener.

· Court also partly overruled Danamma case and held that section 6 is retroactive in nature.

· The coparcenary rights bestowed upon daughters on and from 9thseptember 2005 but has been created on and by birth of daughter.

· It also held that section 6 is not amended but only substitution.

· By over ruling the judgment in Phulvati case, court held that coparcenary right does not pass from a living coparcenary to a living daughter, rather than from father to daughter.

· It is ruled that where joint Hindu family property where right to partition is absolute and is created by birth of daughter. It is immaterial whether the father of the daughter was alive, or deceased on 9th September, 2005.

· It was also held that death of daughter does not seize her right to claim for coparcenary right to property. This right will be passed to her nominee or legal heirs.

· As a rule, a plea of oral partition cannot be accepted as a statutorily recognized mode of partition under section 6(5) but the court made an exception to this rule and said that plea of oral partition can be accepted if it is genuity and legality is proved but the burden to prove that will be on the defence.

Case Analysis

Vinita Sharma vs Rakesh Sharma case is a highlight where Supreme Court eradicated the lacunae in the previous judgments and clarified the nature of Hindu Succession(amendment) act 2005. The judgment ended the vagueness and ambiguity in the interpretation of Section 6 of Hindus Succession (Amendment) Act 2005. The judgment upheld the constitutional spirit by providing social justice and equality under article 14 of the Indian constitution.

Women’s struggle for their rights have been long, and it has still not ended. The fact that women’s right to property still is a issue in the present society echoes a lot about the patriarchal society that we live in. In Vinita Sharma versus Rakesh Sharma’s case, supreme court clarifying that daughters are co personnel by bird. Is a step in the direction. And the amendment in the Hindu succession app 2005 that granted equal rights to daughters in ancestral property after. 50 years

Rationale behind the judgment is also crucial as Supreme Court highlights the fact that daughter is also born in the same manner as the sons and she is also entitled to share in ancestry property. Supreme Court recognizing section 6 to be retroactive in nature is significant considers daughters as well as sons as coparceners by birth. It is a significant milestone in achieving gender equality under article 14 of Indian Constitution. It provides legal certainty and sets precedent for more progressive approach and inclusive approach to family law The decision has potential to improve socio economic status of women in India.