Concept of Coparcenary:
Coparcenary is a concept created by law to represent a right given at birth to have a claim on the ancestral property. It is a concept under the Hindu law which has been in force since time immemorial. Regardless, it has undergone major changes since its inception. While the meaning of the term has not changed, who this right applies to has been revised multiple times under the dynamic conditions of our society.
Schools of Hindu Law and Coparcenary:
The major schools of Hindu law – Mitakshara school and Dayabhaga school had variations in the application of the concept of coparcenary. The similarity lies in the fact that both schools did not provide women with the right of coparcenary.
Under the mitakshara school of thought, the propinquity of a person was considered for them to possess this right. Propinquity refers to the nearness of blood among the members of the family. The sons of the family had the coparcenary rights at birth. The rule of survivorship was followed and thus, the males had fluctuating and indeterminate shares. on birth of new make agnates, the others get lesser shares and, on the death of a male agnate, the remaining members get more share. There was unity of ownership but no community of interest.
The dayabhaga school on the other hand did not give this right on birth. The right of coparcenary is given on the basis of religious efficacy. The daughters under special circumstances do inherit the property. The sons in this case as they are not given the right by birth, are inheriting the property as a heir to their father, and not as a survivor as under the mitakshara school. The Karta of the family remains the absolute owner until his passing.
Coparcenary after Codification:
After codification and the enactment of the Hindu Succession Act, 1956, these concepts were not used. The Act tried to focus on equality but failed to do the same. Daughters now had a share in their father’s property and were considered as legal heirs and could inherit through notional partition. But the ancestral property still went to the son.
The Amendment of 2005:
The Hindu Succession Act, 1956 was amended in 2005. Precisely it came into force on the 9th of November, 2005. This amendment brought in a variety of changes to the traditional laws codified under the Hindu Succession Act, 1956. The Act was brought into force right after the country attained independence. The patriarchal mindset of the society reflected in the legislation. Many provisions blatantly proved to be discriminatory towards women. Thus, these amendments were much needed. The concept of coparcenary and who it applies to also changed with the same.
The amendment was considered to be retroactive in nature which brought about some confusions. These were cleared up by few landmark judgements by the apex court. The most recent one is the Vineeta Sharma v. Rakesh Sharma[1] case which set clear all ambiguity about the application of the provision. The case in question is a landmark judgement regarding Hindu joint family and coparcenary rights of the daughters. It deals with Section 6 of the Act in specific. This section was amended to give the daughters the same rights as the sons with respect to coparcenary. Section 6(1)(a) of the Act now established that coparcenary rights are conferred on daughters by birth. The confusion raised when it was questioned that whether daughter born before 2005 will get the treatment or not. The court also faced the question of the need for both the father and daughter to be alive as on 9th of November, 2005.
Vineeta Sharma v. Rakesh Sharma[2]
Facts:
These aforementioned questions were answered in the case Prakash v. Phulavati[3] by a division bench of the Hon’ble Supreme Court of India. In this case, the court held that the Act of 2005 is prospective in nature. Thus, all rights conferred on daughters under Section 6 of the Act after the amendment of 2005 are for the living daughter of a living coparcener. This requires the coparcener to be alive as of 9th September 2005, so that the daughter can claim ownership of the coparcenary property. However, in the current case, the coparcener died before the 2005 amendment, thus, it was held that the daughter was not entitled to a share of the coparcenary property. She was not the daughter of a living coparcener which is the requirement.
In a subsequent judgment of Danamma v. Amar[4] in 2018, the Supreme Court of India did not establish clarity on the concept – living daughter of a living coparcener. The coparcener i.e., the father died in the year 2001. He left behind two daughters, two sons, and a widow. Coparcener’s heir was not alive when the amended provision of section 6 of the Act came into force. Even though the coparcener had died before the amendment of 2005, the Court held that daughters have equal rights in the coparcenary property as of sons. The appeal of the Vineeta Sharma case posed similar question before the Hon’ble Supreme Court, and the matter was referred to a larger three judge bench of the Hon’ble Supreme Court based on the contradictory opinions expressed by the Hon’ble Supreme Court in the above mentioned two decisions of Phulavati case and Danamma.
Both the earlier judgements were passed by a divisional bench constituting of two judges. Therefore, in the Vineeta Sharma case a three-judge constitutional bench of Supreme Court was constituted to resolve the issues and provide the correct interpretation of section 6 of the amended Hindu Succession Act, 2005.
Issues:
- Whether the father should still be alive on November 9, 2005?
- Whether Section 6 of the Act of 2005 modified, prospective, retrospective, or retroactive?
Laws:
Section 6 of Hindu Succession (Amendment) Act, 2005
Judgement and Analysis:
Bench: Arun Mishra, S. Abdul Nazeer, M.R. Shah J.J.
Supreme Court’s Bench in this case referred to various principles of Hindu law, both codified & customary such as Coparcenary & Joint Hindu Family, unobstructed & obstructed heritage as well as a catena of Judgments. The Court after examining these things observed joint Hindu family property as unobstructed heritage. In this kind of property, the right of partition is absolute & it is given to a person by virtue of his/her birth. However, a separate property is obstructed heritage in which the right to ownership & partition is obstructed by death of the owner of separate property. In obstructed heritage right is not by the birth but it depends upon the death of original owner. Supreme Court by observing these situations held as the right to partition is by birth of daughter (unobstructed heritage) it is immaterial if father coparcener was alive or dead on the date when the amendment was enacted. Therefore, the Court overruled the judgment of Phulavati v. Prakash & said that the coparcenary rights pass from the father to his living daughter not from a “living coparcener to living daughter”.
By overruling the Phulavati & Danamma Judgment the Court ruled that the effect of the provisions of Section 6 of the Act are neither prospective nor they are retrospective in nature although, it is retroactive in nature. Hon’ble Supreme Court explained the principles of prospective, retrospective & retroactive by saying that application of retroactive law is dependent on feature or occurrence that occurred in part or requisites that were drawn from a past event. Court stated that Section 6(1)(a) of the Act incorporates the definition of Mitakshara coparcenary’s unobstructed heritage (conferred by birth), since the right is conferred by birth it is an antecedent case, the provision applies on & from the date of enactment of the Amendment Act thus, making it retroactive. Court added that the clause of 4 of Section 6 clarifies that Section 6 provisions are not retrospective. This approach by the Court cleared the lacuna in law.
Conclusion:
The Vineeta Sharma verdict has dispelled any ambiguity regarding the legislation and made it evident that the amendment of Hindu Succession Act, which grants daughters an equal right to inherit ancestral property, would have a retroactive effect. The court also expressed that basing someone’s inheritance rights on their gender is against Article 14, which guarantees equality before the law. All the uncertainty that the Phulavati and Danamma case raised has been appropriately addressed by this ruling.
[1] (2020) 9 SCC 1
[2] (2020) 9 SCC 1
[3] (2016) 2 SCC 36
[4] (2018) 3 SCC 343
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ARTICLE WRITTEN BY SWETA SHOUMYA
