Case Number: Civil Appeal No. Diary No.32601 of 2018

Judges Name: Hon’ble Judge Arun Mishra J, S. Abdul Nazeer J, M.R. Shah J

Order dated: 11th August, 2020

Facts of the Case:
This case arose out of a judgment delivered by Delhi High Court which had also granted certificate to appeal. The High Court had observed that there is a conflict of opinion between Prakash vs. Phulavati, (2016) 2 SCC 36 and Danamma @ Suman Surpur vs. Amar, (2018) 3 SCC 343 with regard to interpretation of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act of 2005. However it has to mentioned that the High Court followed the judgment in Prakash V. Phulavati and held, in facts of this case, that, the amendments of 2005 do not benefit the plaintiff as her father passed away on 11.12.1999.

Section 6 lays down that, on and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,
(a) by birth become a coparcener in her own right the same manner as the son
(b) have the same rights in the coparcenery property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener. It has to be mentioned that the proviso to Section 6 provides clarification that it shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20.12. 2004. In Prakash V. Phulavati (2015), the Supreme Court held that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005, irrespective of when such daughters are born. It was held that, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. This position was reiterated by the bench of Justices R.K. Agrawal and A.M. Sapre in Mangammal vs. T.B. Raju (2018).

In the case of Danamma @ Suman Surpur vs. Amar (2018), it was held that the share of the father who died in 2001 would also devolve upon his two daughters who would be entitled to share in the property. “Section 6, as amended, stipulates that on and from the commencement of the
amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized,” it was laid down in the said judgment.

Supreme Court held:

The Supreme Court pronounced this judgment in a batch of appeals that raised an important legal issue:
Whether the Hindu Succession (Amendment) Act, 2005, which gave equal right to daughters in ancestral property, has a retrospective effect?
The Supreme Court held that:
“Daughters must be given equal rights as sons, Daughter remains a loving daughter throughout life. The daughter shall remain a coparcener throughout life, irrespective of whether her father is alive or not”.

The Supreme Court held:

• The provisions as contained in substituted Section 6 of the Hindu Succession Act, 1956 provides status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
• These rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
• Further since the right in coparcenary is by birth, it is not necessary that father coparcener should be alive as on 9.9.2005.
• The statutory fiction of partition that has been created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally provided did not
  bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of determining the share of deceased coparcener when he was survived by a female heir, of Class ­I as specified in the Schedule to the Act of 1956 or male relative of such female. To add, the provisions of the substituted Section 6 are required to be given full effect.
• Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
• Taking into consideration the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. It has be pointed out that, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone shall not be accepted and to be rejected out rightly.

Therefore Supreme Court in this case has held that, a daughter will have a share after Hindu Succession (Amendment) Act, 2005, irrespective of whether her father was alive or not at the time of the amendment.