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Coparcenary Rights of Daughters: Critical Analysis of Vineeta Sharma Vs. Rakesh Sharma

For centuries, the male lineage has determined who owns the land and who have authority over the family's assets, where and how to use them. In circumstances like this, when the women have little control over their resources, they are in a more financially disadvantaged position than men as it comes in relation to acquiring any land or property. As a result, Hindu women have long faced economic discrimination as Daughters or as mothers, and wives within families. the majority of women, owning any kind of an immovable property or may be a fragment of land, and to control any kind of the economic assets, was a dream which is far off to be fulfilled in past.

The distinction betwixt the daughters and son have been an issue that have been predominant in the Indian Society for a long long time. The Indian Society has come a long way on bringing the justice to the daughters. The section 6 amendment was one of the ways of trying to uplift the women's status in the society. But this way had created a lot of confusion in order. Various Judgements had been passesd in relation to this matter, but most of them contradicted each other in one way or other.

The Paper talks through Hindu law has been there for whom and how it has evolved and focuses on the Judgment of Vineeta Sharma case which puts rest to the confusion.

What is Hindu Law
Hindu law is deemed to be one of the creative and oldest legislative in the existence of the Mankind. Its an old law which is approximately dates back to 6000 years, that had been founded by people of society with the motive that all of them will comply to it so as to achieve salvation but not with an intent to eradicate the wrongdoings or crime.

It was initially instituted with rationale of satisfying the needs and maintaining the well being of the society. It alludes to legal theory, jurisprudence and rational thoughts on the Indian texts of the medieval era. The Hindus consider law as dharma, which literally means duty. Dharma includes various duties like the duties of sociological, legal or spiritual.

A person be perceived as Hindu, who is a Hindu through religion in any form or a Buddhist, Jaina or Sikh by religion or born from Hindu parents, isnt a Muslim or Parsi or Christian or not Jews thus not being governed under Hindu law. The case of Shastri vs muldas[1] is of a historic case under which the term Hindu was expressly defined by the Supreme Court.

The sources of Hindu law have a two fold classification:
Ancient Sources and modern sources. Ancient sources include Shruti, Smriti, digests and commentaries, customs and usages and the Modern Sources include Equity, justice and good conscience, precedent and legislation. The modern sources of law are of two types the codified and uncodifid law. Every hindu is governed by the codified law. The uncodified Hindu Law includes schools of Hindu law.

The Enactments by the means of Hindu Law is applied in India are Hindu Marriage Act, 1955, Hindu Succession Act, 1956, Hindu Succession Act, 1956, Hindu Minority and Guardianship Act, 1956, Hindu Adoptions and Maintenance Act, 1956, Hindu women's right to property act 1937.

Schools of Hindu law
Hindu law schools have diverse and diverge view points on the rules and principles of Hindu Law. The schools of law are the uncodified law as in against the various enactments, but however these schools influence the minds of legislatures and law makers.Their emergence was a result of variations of the opinions of various people during when the smriti's were being developed. These relies on commentaries and digestives of smritis thus widening the scope of the Hindu Law.

In Rutcheputty v. Rajendra[2], it was noted that the origin of different schools of Hindu Law are due to different local customs prevailing in different provinces of the country. When commentators on the Smritis were interpreting the texts, they couldn't ignore local customs and usages, so they eventually incorporated them. As a result, the local conditions and customs of the various provinces have shaped the legal principles in each province Collector of Madras v. Mootoo Rantalinga[3], is the casein which it was held that:
The remoter sources of the Hindu Law (Smritis) are common to all the different schools. The process by which those schools have been developed seems to have been of this kind.

There are two types of Hindu Law School:
  1. Mitakshara
  2. Daya Bhaga

This is school is written smriti by Yajnavalkya, which prevails in whole of India except in West Bengal and Assam. This school is also called as Inheritance by birth. Under this school the son gets right on the father's property as soon as he is born. The females or wives don't get any share of the ancestor's estate or any kind of rights under this school, but the mothers can claim over their son's share.

This school is divided into five sub schools:
  • Benaras Hindu law school
  • Mithila law school
  • Maharashtra law school
  • Punjab law school
  • Dravida or madras law school

Dayabhaga school
This school is thought to be founded on digests for the most important smritis, which primarily talks of partition, inheritance, and joint family life. Its most commonly found in modern society and also has a liberal perspective. This school is particularly popular in Assam and West Bengal. The principle of spiritual learning is the foundation of the the school. The idea of the school was conceived with a perspective of eliminating the preposterous and artificial concepts of inheritance. This was formulated in order to abolish the shortcomings of the theories and incorporating the cognates who aren't a part of mitakshara school.

After the father's death, the school grants the son the right to the ancestral property.It provides with a clear cut share of the property of the descendants. It provides women with a right to stridhan even without the aggrement of the husband. This also provides for share of the widow over their husband's share. There are various other commentaries under this such as Dayatatya, Dayakram-sangrah, Virmitrodaya and Dattaka chandrika.

The Hindu Law Schools of Mitakshara and Dayabhaga differ like:
  • Under Dayabhaga both the males and females are included in the JHF whereas only males members form part of the JHF under the school of Mitakshara
  • The right to propertyis given through birth in mitakshara where as under the dayabhaga the right is not through birth.
  • In the dayabhaga school, property is physically separated, whereas in the mitakshara school, nothing is done.
  • The females are given some rights as per the dayabhaga school whereas the mitakshara school doesn't provide the females with any right.
  • The right of individuality is awarded under dayabhaga but nothing as such in mitakshara
  • The dayabhaga to a great extent has a liberal approach and the mitakshara has s'more of conservative approach.
What is a joint Hindu family
It is a paramount concept of Hindu law it is regulated by the HSA 1956. It constitutes of all persons who be leanly a descendant from a common ancestor and inclusive of unmarried daughters a daughter seizes as a part of a father's family in marriage and thus forming a part of their husbands family a joint undivided family is a normal condition of the Hindu society.
It is an inevitable concept of Hindu law, it is a perpetual process as if the JHF is ended through the process of partition then A new joint Hindu family is created naturally it is also presumed that every Hindu family is a joint Hindu family [4].

In Attorney General of Ceylon v. Arunachalam Chettiar[5] it was held that as long as a male member can be added by the female members , the family doesn't come to an end. It includes a common Ancestor and all of his male lineal descendants up to any generation, as well as the common ancestor's and descendants' wives and daughters. Its necessary to have a common ancestor for the formation of a JHF, though its survival is not dependent upon it. Common Ancestor is acknowledged as the Karta of the family, he is the Family's Head. A person becomes the part of the JHF through birth, which in turn makes a minor also a member of the joint Hindu family.

A joint Hindu family is family that has all it affairs of food, worship and estate jointly. The same was also held in the case of Rukhmbai vs. Lala Laxmi Narayan[6] and as well as in Rajagopal vs. Padmini[7]. It still will be a joint Hindu family even if they don't live together but have joint real estate.

In the case of Chhotelal and others vs Jhandey Lal[8] and another an observation was made that a joint Hindu family is a whole unit which is represented by Kurtha and not has a separate legal entity or neither it is a juristic person. Although it is treated as a 'person' for tax assessment, has a separate entity for this intent as per the IT Act[9].

It comprises the family members inclusive of male members with their mothers, wife's, widows and unmarried daughters, the daughters form a part of their parents joint Hindu family till the time she is unmarried and when she gets married she joins her husband's joint hindu family as her wife and bears his children thus expanding the husband's JHF. The same was supported in the case of Surjit Lal Chhabda vs.CIT[10].

It was noted in Gur Narain Das v. Gur tahal Das[11]in case a male member has an illegitimate son he will also form a part of the JHF.

What is Coparcenary?
It's a theory related to Hindu law's succession, which primarily concerns to the property known as coparcenary property. This property must be an ancestral property, which is defined as one which has been passing from one generation to another without interruption for at least four generations. It is a smaller unit of the Joint Hindu family. In the case of CIT v. Gomedalli Lakshminarayan[12]it was held that despite the non-existence of a coparcenary in a family still that family continues as a Hindu Undivided family.

It is formed with the four generations of the male descendants of family. The member who is the oldest is called as the last holder and from him upto the 3 generations which includes his son, his son's son and his son's son's son , all the four together form a Coparcenery. There isn't any limitation on how many number of male member is one generation, but the correlation with each other through blood or may a valid adoption. It's a creation of the law that in turn also states that no a person cannot form a part of coparcenary through an agreement or even marriage, this same was also supported in the case of Sudarshan v. Narasimhulu[13]. A female was not allowed to form a part of the coparcenary which was ammended in 2005.

As in the case of Joint Hindu family, having a common ancestor is a necessity to create the JHF it is also a necessity in the case of coparcenary but for its continuation not a necessity. The coparcenary continues as the new members are born in the family even though oldest members die, the coparcenary continues to exist. For forming a coparcenary and as well as for its continuance there should be two members at the least. A coparcenar who is a male member his right begins with birth; as soon as a person is born who is a part of at least of any four generations, he becomes a coparcenar.

An end to the coparcenary can happen through the process of partition or when no surviving copacenars is left. If there is only one coparcenar left and no way to add another, the coparcenary property becomes his separate property.

A coparcenar has several rights as well as duties. The coparcenary property is of mutual concern and a single person can the sole ownership. The property will be enjoyed together and any of the generation of the income from it will be shared and if anyone is denied the right he can reach the court for enforcement of his right. An insane son do form a part of the coparcenar but he doesn't have the right to demand the partition.

The subject of coparcenary of being shared equally was discussed in the case of Rohit Chauhan Vs. Surinder Singh & Ors[14]. It was added on in the case that an ancestral property remains with a single person on partition, it must be treated as a separate property, and he has an entitlement of disposing of the Coparcenery Property, treating it as his separate property. If a son is born later, the father's alienation, which began prior to his son's birth, cannot be questioned. The property, however, becomes a coparcenary property and as and when a son is born, and thus he acquires an interest in it and becomes a coparcener."

Commissioner of Gift-tax v. N.S. Getty Chettiar[15] is the case in which it was observed that the coparcenars do not have a right to sell any share of the joint family, they can only sell if the partition of property has taken place.

In the Coparcenery property the rule of surviourship is applied which provides that if a coparcenar dies then his share in the property passed to the surviving coparcenars, as there is an addition and deletion of the coparcenars on a continous manner, thus the share can't be decided aptly due to so many fluctuations caused as a result of birth and death.

In the case of Moro Vishwanath v. Ganesh Vithal[16], the court observed that a partition can be demanded only by one more than four degrees from the acquirer but it cannot be demanded by a person who is at one other than four degrees removed from the last owner.

The term Joint Hindu Family and coparcenery differ like:
  • The JHF is a wider concept as in comparison to Coparcenery as the joint in the family consists of all descendants who are male descending from a common ancestor with their wives and unmarried daughters as well whereas the coparcenary includes the three generations of male descendants from the last holder
  • There isn't any kind of limits on generations in JHF but only four generations with unlimited male members can form a coparcenery.
  • The females as well as illegitimate sons form a part of the JHF though females were not allowed to be a coparcener untill 2005 amendment of the Hindu succession act till 2005 when amendments was made to the Hindu succession act.
  • The existence of property is a necessity in case of a coparcenary but it's not a necessity in a situation of joint Hindu family.
  • The JHF has to be administered by the law of succession where as the coparceners are administered by the rule of survivorship.
  • Coparceners have a broader range of rights and responsibilities than joint Hindu family members, who only have a limited set of rights.
  • Every coparcenary is joint Hindu family but every joint Hindu family is not a coparcenery.

What is Succession?
It can be explained as transfer of rights, duties and resources to the succeeding kin after a person has passed. The deceased's heir gets all his belongings, being transmitted to the heir. It is the passing of powers, assets, property of predecessor to its successor. The estate of the dead shall be left ownerless if it is not passed over to the heirs .The succession is governed by succession law, which establishes various principles for distributing the assets of the decedent.

There are chiefly two types of succession:
  1. Testamentary Succession
  2. Intestate Succession

Testamentary Succession-
It's a classification of succession in which the deceased prepares a will. The will must be a valid and enforceable will. The will is a legal document in which the deceased has mentioned his wishes about how he wants his estate to be shared among who all. There are a number of requirements that must be fulfilled so that a will to be carried out; if the will is not legal, it can't be carried out.

Intestate Succession
It's a classification of succession is the one where a person dies without leaving the will, which provides for how the estate would be divided. In the case there is no will then the estate would be divided according to the laws of succession. There are separate personal laws of succession for every person. Laws of intestate succession are different for Hindu, Muslims and Christians.

The testamentary succession is administered by The Indian Succession Act 1925, whereas the Hindu Succession Act 1956 provides for the intestate Succession for the Hindus and the others who are provided for under the term Hindus in the act.

The Hindu Succession Act 1956
It concerns with the subjects in relation to inheritance and succession . The act incorporates the full length of facets of Hindu Succession and its scope. It was authorised with the objective of forming an orderly framework of succession and making the gender discrimination between the daughter and son to an end.

It's application is confined for Hindus and also to its subgroups comprising of Jains, Sikhs, Buddhists, The Arya Samaj, Lingayat, Brahmo, Virashiya, Prathana Samaj, but it isn't applied on the Muslims, Christians, Jews and Parsis. The applicability doesn't depends upon Legitimacy of child. The act doesn't apply to property which are covered under the Indian Succession Act through Special Marriage Act.

The act provides with various definitions of terms in relation to the various people related through blood ties like cognates, agnates, heir, related and intestate. The act caters with rules on how the succession of men and women both should take place, for both there are different rules.

The act lays down four categories of heirs in case of the males in case of the males which is laid down in the section 8 of the act; Class I, Class II, Class III (Agnates) and Class IV (Cognates ). The whole of people in Class I heirs will inherit the estate concurrently incase if no one is present of the Class I then it will pass onto ClassII heirs and will go down to Class III and Class IV in order. In the case of Additional Commissioner of I.T. v. P.L. Karuppan Chettiar[17] the Court had said that upon the passing away of a Hindu male, his property will devolve, first and foremost on all the family members in the class I of the Schedule. The Class I heirs will inherit simultaneously, which will lead to the exclusion of Class II heirs.

In the case of Bhagat Prasad Bhagat versus Shankar Bhagat[18] it was held that section 8 shall be considered when in relation to in order to the subjects of inheritance instead of Section 6.

The women were accorded a status which is equal with coming of this act but with amendment of 2005 it was then decided that the daughters would also get the same share as the sons. The property in case of a female Hindu intestate dying will devolve in order Firstly, through the sons and daughters and the husband then to the heirs of the husband, nextly upon the mother or the father subsequently the father's heirs and finally upon the heirs of the mother.

There have been few exceptions to the act, it isn't applicable in the situations:
  • If any-person who commits murder will be disqualified from receiving any form of inheritance from the victim,
  • If a relative convert from Hinduism, he or she is still eligible for inheritance but their descendants are disqualified from receiving an inheritance from their Hindu relatives,
  • Full Blood is always preferred to Half blood
  • Widows remarrying are not entitled to inherit as widow.
In Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo & Ors[19]. The plaintiff, Lalu Pratap, filed a case requesting that the deceased's inheritance be controlled by the rule of lineal primogeniture, which states that the deceased's asset held jointly is distributed among the male members of the family though it have female members.

It was asserted by the plaintiff that rule of survivorship or lineal primogeniture applied, not the Succession Act, because the Act was enacted following deceased's death. It was stated that rule of survivorship or inheritance did not apply as the Act was already in force by the court. It was also added that the old Act is retrospective in nature.

Amendments of the HSA 1956
In 2005 amendments were made in order to curtail the acts provisions which were gender discrimination. It was contemplated as a step which is revolutionary in the field of women rights in the Indian legislation as it is a step forward in providing for rights which are equal among males and females.

The Sections 4, 6, 23, 24 and 30 of the Act were amended. In section 4, its subsection(2) has been omitted, section 6 has been amended, section 23 was repealed as it discriminates against the females to ask for partition of Property. Section 24 Denied rights of widows to inherit her husband's property upon remarriage has been repealed and some parts of section 30 were amended like the words disposed by him were substituted with disposed by him or by her for ensuring gender-neutrality.

Before it was amended the section 6 provided for provided for the intestate succession of the property, providing with the property be handed to the coparceners which are male or shall have the interest in the coparcenary property this interest was limited only till the three degrees of generation from the last holder. This interest is transferred through the way of survivorship, the 1956 act did not included the females in in the share of the coparcenary property.

It was amended in order to remove the gender biasness the amendments provided that both sons and daughter shall have the equal rights on the coparcenary property and the coparcenary liability shall be equally applicable upon the sons as well as the daughters, thus this act made the daughters of the three degrees a part of the coparcenary.

The section 6 amendment when introduced, it was not made clear whether it was retrospective prospective or retroactive in nature thus various case were held in the in order to recognise of which nature it was. A Retrospective Law is the law in which considers the past events are considered it operates backward, and it takes away or impairs 'vested rights', which were acquired under then existing laws.

The prospective law is the law which considers the happenings of the future which operates from the date of its enactment conferring new rights. and whereas the retroactive law means the laws that shall be applied from a past date, it is the one, which does not operate retrospectively. It operates in future but its operation is based upon the character or status, which arose earlier.

In Yogendra & Ors v. Leelamma N. & Ors[20]. Yogendra's first marriage was a legal marriage as per the Hindu Marriage Act, 1955's Section 5. As per the act the second marriage of an individual can only happen in case divorce happens with the spouse which is first or it is dead. The bigamy and polygamy are prohibited in simple worlds under the act. With his first wife, Yogendra has three daughters: Leelamma, Kamalamma, and Parvathamma. Yogendra married another woman eventhough the first wife was still alive thus making the second marriage illegal. After that, he had a daughter named Dinesh with his second wife.

The issue which arose point of was whether Dinesh the daughter with second wife was entitled to Yogendra's property as a coparcener as per Section 6 of Hindu Succession Act or Section 8 of the Amended Act as a coparcener or not. It was held by court second marriage is an illegal and null and void marriage and thus Dinesh is an an illegitimate child will not be regarded as a coparcener thus as per the HSA, she cannot inherit any kind of a property of a coparcener, but she can inherit as an illegitimate child under the Amended Act.

Notional Partition
It is a concept when one of the coparceners die then the undivided interest of the coparcenary property shall be distributed equally between his heirs. The coparceners do not have a predetermined share it keeps on fluctuating because of birth and death of Coparceners. The segment of a dead person could be a certain by using the notional partition process it could be used by assuming that before his death what would be his share and that would devolve upon his successors.

It's more of a fictional concept it was brought in for a purpose which is precise in nature but under this the real partition doesn't take place. This concept does not affects interests of the any other surviving members as it is just being legal fictional in nature and no actual partition take place and cannot be extended further.

This Concept was given a statutory provision through the section 6 of the Act. Before the 2005 amendment only the male heirs would get the share but the female heirs including daughter and the wives weren't a part of the coparcenars as the wives were not considered a direct bloodline of departed and daughters were to move to their husbands house so both weren't allowed to be form a part of the coparcenary.

With the amendment, both males and females now have equal shares in coparcenary property, and daughters have been given an equal share as a step toward reducing gender bias and providing better opportunities for women in Indian society. Female heirs including The daughters, The daughter's-daughter's sons, The daughter's-daughter's daughters, The daughter's son's daughters and The son's daughter's sons (the predeceased great-granddaughter that applies only if heir who is male or the grand is predeceased). The males and females both have equal liability.

The concept could be explained with an example Mr X had a family property and had only one son who was Mr.Y that had died intestate. Mr Y had a daughter and a son now when Mr X died his property would be shared between both the children of Mr Y the daughter and son, this concept was implemented after the 2005 amendment of the act.

In Man Singh Vs. Ram Kala[21] A male Hindu died who left behind wife son and daughter the question arose here was about the devolution of interest in the coparcenary property it was held that until the coparcenary is disturbed it by actual partition the disease definite she cannot be claimed. It was justified that while doing notional partition to attain the share of deceased would in no manner disrupt the coparcenary.

Section 6 landmark judgements
The Prakash & ORS. Vs. Phulavati & Ors.[22]. is one of the landmark cases in relation to amendment of section 6. The father of the Respondent died on February 18, 1988. The father of respondent was possessing a lot of assets that he had acquired and inherited. At the year 1992, Respondent filed a lawsuit in the Trial Court, requesting partition of her father's assets.

On the basis of notional division, the Trial Court partially authorised the suit to the extent of 1/28th share in certain properties, no stake in others, and 1/7th share in the remaining properties. In 1992, the current Appellants disputed this, contending that the Respondent could only obtain her father's self-acquired holdings, not the ancestral property he inherited.

During the course of the trial, both parties revised and amended their petitions in response to changing circumstances and changing percentages of ownership in the properties. The Court takes into account all of requests even those which were indirectly inrelation to the case, which caused a delay in the declaration of the judgement.

Although the exact date of the decision by the trial court is unestablished, the case was filed in 1992, and appeal that is first to the High Court was filed in 2007, nearly immediately following the Trial Court's decision. It helps in approximation the time it took for the Trial Court verdict to be delivered.

When the Amendment Act took effect on September 9, 2005, the Respondent had the right to claim her part of the property under the Amendment Act, in accordance with Section 6(1) of the Act. The suit was partially granted by the trial court. In accordance with te Amendment Act of 2005, She revised her plaint to claim her portion and went to the High Court to appeal the Trial Court's decision.

The argument in the Trial Court was that respondent can't claim the ancestral property as she was an illegitimate coparcener in the property. In the High Court, it was argued that because the Respondent's father died before the enactment of the Amendment Act, it could not be applied to the Respondent's case.

The argument before SC presented was that Amendment Act was enacted after the death of the Respondent's father, causing him to lose his coparcener status. Thus, she was unable to claimed as the Coparcener. When she is not a coparcener in a conventional sense, the statute, which specifically excludes any retrospective application, would apply.

The issues that the court had to decide were:
  1. Is the Amendment still relevant if the Respondent's father deceased after the act was passed?
  2. Is there a possibility for applying the Amendment Act for a partition that was carried out without a court order?
  3. Is it possible to apply the Amendment Act retroactively?

The HC had explained that because the division isn't effected by a partition deed or a court order of any kind, it was considered to be a notional partition, so Section 6(5) of the Amendment Act could not be applied in this case. The HC had allowed the appeal of the respondent in accordance with the case of G.Sekhar versus Geeta and others[23].

The Supreme Court distinguishes between the High Court's usage of the Act in this case and the Act's application which is retrospective in general. The Supreme Court overturned the High court's decision. The SC said that shares were already granted under the HSA, 1956 and can't be taken aback through a modification, namely the HSAA 2005.

The Respondent's argument that it retrospectively applies since it was a social law aimed at correcting disparities between men and women was declined by the Court. The SC said that social legislation cannot be applied retroactively unless expressly indicated in the statute.

The HSSA 2005, will only apply to live daughters and living sons, as per the law, irrespective of when such daughters were born, and that:
All partitions in which the coparcener has died before 9-9-2005, the living daughter has no entitlement over her share of the property.

In regards to the first issue the Supreme Court's decision in case of G. Sekar v. Geetha And Ors.[24] Was taken into consideration. The SC had explained that any alteration or development to the legislation will apply to cases that were pending at timing the legislative was being amended. The court also made a distinction between prospective and retrospective applicability. This decision was based on the decision in the case S.L Srinivasa Jute Twine Mills (P) Ltd v. Union Of India[25], that is not in considered in instance of the factual situation, but rather for the decision itself, that was decided that existing parties' rights would not have been taken away during the commencement of an act.

After taking into consideration the parties' arguments, the Apex Court cited case law of Shyam Sunder v. Ram Kumar[26] in which it was found that unless a statute clearly indicates that it must be applied retrospectively, it is implicit that the act's aim is to be applied prospectively. The Act precisely provided with partitions completed before December 20, 2004 are not subject to the Act's provisions. The court also mentioned the act's definition of "partition" and agreed with the High Court's view of partition in this case.

The SC provided that the Act applies to the living daughters of living coparceners as of September 9, 2005, regardless of when those daughters were born. The Apex Court overruled the High Court's decision for the reasons stated above. The court dismissed the Respondent's argument that the Amendment Act must be applied retrospectively because it is progressive legislation, stating that even social legislation requires express mention of retrospective application.

The Danamma @ Suman Surpur vs Amar[27] was also a landmark case in regards to amendment of section 6. Shri gurulingappa savadi's two daughters who are the appellants of situation. He also had a wife, Sumitra, and two sons, Arun Kumar and Vijay. On July 1, 2002, Amar, S/o Arun Kumar who was Respondent No. 1filed a suit for property partition, claiming a 1/15th portion of property.

The plaint provided with sons and widows were in joint possession of all properties as coparceners, and that some of the another properties mentioned in the plaint were acquired in the name of Shri Gurulingappa Savadi. It was asserted by the Appellants were not the coparceners because they were born before the HSA was enacted.

The Appellants claimed that they were also coparceners because Gurulingappa Savadi died after the Act of 1950 took effect.

It was claimed by the appellants that they were also coparceners because Shri Gurulingappa Savadi died after the Act of 1950 went into effect. The arguments made by the respondent were it claimed a one-fifth ownership stake in the properties.

The Appellants in this case were alleged not to be the coparceners because their birth was way before the enactment of the 'Act.' It claimed that Shri Gurulingappa Savadi was neglecting the Plaintiff and his siblings, and so it asked for the case to be partitioned. The Lower Court had disapproved for holding the Appellants as coparceners as their birth was way before the Act's enactment. In 2008, the High Court overturned the Trial Court's decision. In an order dated January 25, 2012, the High Court h with the Trial Court and upheld its decision.

The issue arisen in case was the Appellants (daughters) were entitled to an equal portion of the property because their birth was way before the HSA 1956, or not. The Appellant's motion was contradicted by the Lower Court and the High Court, who ruled that she had no entitlement in the stake in the property because she was born before the HSA, 1956, and the original coparcener died when HSAA 2005 was not enacted.

A Special Leave Petition contesting the order under Article 136 of the Constitution was received by the SC.

The Supreme Court overturned the decisions of the Lower court and the HC. It added that the coparcener who was original died in 2001, the partition suit was filed in 2002, lower Court judgement was issued in 2007. During the course of the case was passed the HSAA 2005, which gave the daughters as a coparcener's position and gave her the same rights and obligations same as the son.

Thus inferring, the SC had precisely made addition that amends applies to the current case as the partition had took effect after the trial court's ruling in 2007. The Supreme Court took a different stance in this historic decision than it did in Prakash v. Phulavati[28] The father (propositus), a male coparcener, died in 2001, and his sons filed a partition suit the following year.

The daughters objected to the litigations and was claimed by sons that the deceased father's daughters are not having entitlement of share of the inheritance because he died before the modified Act took effect. The girls' claim was dismissed by both the lower court and High Court because the birth was way before the Hindu Succession Act of 1956 went into effect.

Disputes arose due to courts' differing interpretations of Section 6. Danamma's case had failed to outstreched to the heart of the matter and resulted in ruling that contradicted the Phulwati verdict. The Split's date isn't important in the Danamma case because the question is whether the entitlement of daughter is to a half if her father dies before September 9,2005.

In Phulwati's the SC had set a cut-off date of 9th September 2005 for the living coparcener (daughter) to have entitlement on her half of a property provided the dad is alive at that time. If the father dies before 9-9-2005, the living coparcener (daughter) will have to forego her portion. The conflicting legal judgments in the two cases above generated unneeded ambiguity in the interpretation of Section 6 under the HSAA 2005.

Both the judgements in the Prakash & Ors. V. Phulavati & Ors.[29] and the Danamma Suman Surpur & Anr. v. Amar & Others[30] cases are contentious and contradictory, according to legal authorities. The daughters in the case of Danamma were not entitled to any share in the property under the law interpreted in the case of Phulavati, but the Supreme Court took a different position, implying that the commencement date is no longer applicable to birth or conception, and instead relied on the principle of preliminary and final decree laid down in a wholly different case, namely Ganduri Koteshwaramma & Co.

As a result of Ganduri Koteshwaramma & Anr. v. Chakri Yanadi & Anr.,[31] the entire ruling favoured the girls, and they were given entitlement to the father's portion. In this case the same court found that a preliminary order expressed as by the court in the partition dispute hasn't have any affects on the rights bestowed on daughters by the amendment.

In the case of partition suits, the final decree is the only thing that makes them final. Thus the court have the power of making any appropriate changes to the preliminary ruling in order to restoring the rights under law. As a result, an assumption can be made that a partition suit was filed prior to 2005, but that it was still waiting before the Court for a final ruling. The daughter's entitlement on property is likewise generated in any case by virtue of he. Because the verdicts caused confusion in all of the lower courts, it is now difficult to interpret similar instances.

However, rather than relying on the ruling in the Danamma Suman Surpur & Anr. v. Amar & others case[32], the dicta in the Prakash & Ors. v. Phulavati & Ors[33] case be utilised. The rationale for this is that the judgement in the last mentioned case makes little sense in terms of practical application because it only mentions conception, birth, and death. But in the first mentioned-case, the legislators' interpretation of the statue was pure when the Act's formulation was being done , and they did not anticipate any passage of the decree principle in the law.

The Bombay High Court in Ms.Vaishali Satish Ganorkar & Anr. v. Mr. Satish Keshaorao Ganorkar & Ors[34]., asserted that statute application must be retroactively unless it is specifically been otherwise stated, as the terms "on and from" in Section 6 (1) after amendment demonstrate its prospective nature. They further stated that daughters born on or after September 9, 2005 will only be deemed coparceners, while those born before that date will only devolve an interest in the coparcener properties following his death through ways succeeding his interest.

However, in the case of Shri Badrinarayan Shankar Bhandari & Ors. v. Ompraskash Shankar[35], a Full Judge bench of the same court disagreed, stating that there are two prerequisite requirements for the implication of revised section 6(1) of the act. To begin, the daughters requesting benefits as per the Section 6 there be living at the time the amended act takes effect. Second, on amendment's date of enactment, the property in question must be available as coparcenary property.

It had been ruled out that a change is retroactive, meaning it will apply to all girls born before and after June 17, 1956, but before September 9, 1956. It is, however, subject to one condition that the daughter was alive at the time the 2005 Amendment was enacted. When the Principal Act was enacted, it applied to all Hindus born before or after June 17, 1956, but only if they were alive at the time of the enactment.

The word "on and from" was introduced by the Parliament to ensure that the already established rights in terms of coparcenary property would not be disrupted by a claimant claiming as an heir to a daughter who died before the amendment took effect. As a result, this change will apply to girls born before September 9, 2005.
Critical Analysis of Vineeta Sharma Vs. Rakesh Sharma[36]

It's a case revolving around the concept of a JHF and the daughters' coparcenary rights. HAS was enacted in 1956, and prior to that, Hindu succession was conducted according to ancient Mitakshara law in most parts of India, with the exception of West Bengal and Assam. The devolution of property after Hindu male had deceased was dealt from Section 6 of the Hindu Succession Act 1956, and the rule of survivorship was used for the same purpose.

Section 6 was amended to give daughters the same full coparcenary rights as the sons had. On the November 9th 2005, the amendment act was passed. Daughters were granted coparcenary rights by birth under section 6(1(a)). As a result, the question of whether a daughter born before 2005 will be granted coparcenary rights arose. Another question was whether daughter and the father both had to be alive on November 9, 2005 in order for the amended section to take effect.

These questions were answered in Prakash & Ors V. Phulvati and Ors[37]. Which ruled that the provisions take effect immediately, and that coparcenary rights will be granted to a living daughter of a living coparcener, which meant that father as well as the daughter both had were alive on November 9, 2005. Whereas in Danamma@ Suman Surpur & Anr. V. Amar & Ors. [38]

The contrary was held. A divisional bench made up of two judges dictated both of the previous decisions. So, in the case of Vineeta Sharma v. Rakesh Sharma, a three-judge constitutional bench was convened to resolve the issues and provide the correct interpretation of the amended Hindu Succession Act, 2005's section 6.

Seven other cases were investigated at the same time as this one, all of which dealt with the same area of law and were extremely relevant to the details of the current cases. The three-Judge Bench comprised of Arun Mishra, M. R. Shah and S. Abdul Nazeer, JJ. and it was authored by Arun Mishra.

India's Supreme Court handed down a landmark decision in this case on 11-8-2020, stating that the HSAA, 2005 will apply retroactively. An amendment was made to Section 6 under the act in 2005 to conform to the constitutional belief in gender equality. According to the amendment, the coparcener's daughter, like his son, has her own right at birth by becoming a coparcenar.

It resolved the concern if the Amendment of 2005 had deemed to give the daughter the same right as a son has on the coparcenary property regardless of living status of the father as and when the Amendment was being made. Ms. Vineeta Sharma is the Appellant who had filed a case against her two brothers; Mr. Rakesh Sharma & Satyendra Sharma, their mother , these were the three Respondents.

The father of appellant was Sh. Dev Dutt Sharma who had three sons, one daughter, and a wife. He had expired on December 11, 1999 and one of his three sons who was unmarried also expired on July 1, 2001. The Appellant claimed that as her father's daughter, she was entitled to a 14th share of his property. The Respondents' case was that after her marriage that she is not a part of the joint Hindu Family. The appeal was dismissed by the Hon'ble Delhi High Court because the 2005 amendments did not benefit the Appellant because his father died on December 11, 1999.

The issues raised under the case were:
  1. Should the father coparcener be alive as of November 9, 2005?
  2. Can a daughter born before November 9, 2005 claim the rights and obligations in coparcenary same as a son?
  3. Does the statutory fiction of partition created by the proviso to section 6 of the Hindu succession act, 1956, as originally enacted, result in actual partition or coparcenary disruption?
  4. Can an oral partition plea made after December 20, 2004 be accepted as the legally recognised mode of partition?

On behalf of the Union of India, Shri Tushar Mehta presented arguments that were consistent as per the judgement which was actual. Genuine partitions made before December 20, 2004, which is the Rajya Sabha's announcement of the amendment bill, he argued, should be left alone because questioning them would jeopardise the legal position.

The Solicitor General agreed that it's not required by the father of coparcenar to be alive during the amendment act in order that the daughter to have coparcenary rights, because the death of the coparcener/father does not necessarily mean the end of coparcenary, which can continue with other coparceners alive.

Shri R. Venkataramani, as amicus curiae, argued that the provisions nature is prospective As per the previous judgments, and thus arising any kind of conflict between them. He added the only reason for a daughter being treated as equivalent as a son in terms of rights of coparcenary is due to the act which is amended, not because of her birth. Otherwise, there will be no coparcenary interest which would be left to be passed on to the daughter otherwise if the father is still alive or the coparcenar being alive.

The arguments presented by him showcased that a daughter must be treated as if she were a coparcener before September 9, 2005 will create a great deal of uncertainty in the legal system. He claims that the parliament's intention is to "scramble the unscrambled egg" and "resurrect the past," and that "the parliament's intention is forward-looking."

Shri V.V.S. Rao, learned amicus curia, argued that plain language and the future perfect tense will give the rights which were same, and that phrases like on and from in section 6(1), and in the addition to the words like become, have, and be, indicate that the parliament intended to apply the amendment act's provisions prospectively rather than retrospectively. He claimed that the daughter is only liable for pious obligations as of September 9, 2005, and not for any property acquired prior to that date.

He had contended that the father/coparcener be living of September 9, 2005, because if the coparcenary is disrupted due to the actions of one or more parties, there will be no coparcenary property intact for the daughter to inherit. This legal position cannot be changed because the status conferred has no bearing on previous oral or written transactions of isolation, disposition, or partition. The consequences that he came to inference that a coparcener who is living should be present in order for the daughter to inherit and become a coparcener.

On behalf of the respondent, Shri Sridhar Potraju argued that if a notional partition occurred, it can be acknowledged . He argued that a preliminary decree must be put into consideration as a final because it indicates that the Hindu family's (J)ointness has ended when partition suit was filed. He contended and repeated that the provisions nature is prospective because no such interpretation is sought, resulting in the surviving coparcener's crystallised rights being taken away and settled affairs being unsettled.

Having faith in Uppaluri Hari Narayana & Co. He emphasised that because the provisions are not retroactive, liabilities can only be transferred to the daughter since the amendments have been made. He continue to say that all previous transactions must have protection from the amendment's effects because, after a statutory partition, the property becomes self-acquired and no longer a coparcenary property.

Sh. Amit Pai and Shri Sameer Shrivastav argued that if both the coparcener as well as daughter are living not dead when Amendment Act has taken the effect, the purpose and objectives with which the act had been enacted which in turn is eliminating the discrepancy between sons and daughters, would come to end. They claimed that coparceny occurs as a result of birth, aside from adoption process. They do agree, however, that whether the property's partition is properly carried out, and she must not seek partition of property that has already been divided.

Establishing from the precedent and the various previous decisions, the court had ascertained that JHF property is an unburdened heritage. The right of partition is absolute in the type of property, and it is granted to a person by virtue of his or her birth. Separate property, on the other hand, is an obstructed heritage in which the right to ownership and partition is obstructed by the death of the separate property owner.

When a heritage right is obstructed, it is determined by the death of the separate property's original owner, not by birth. Based on these findings, the India's Supreme Court had ruled that because the right to partition is created by birth of the daughter (unobstructed heritage), it coerces no difference whether the coparcener's father was alive or dead at the time the amends were made. As a result, it overturned the decision in Phulvati vs Prakash[39], ruling that coparcenary rights pass from a living father to a living daughter, rather than from a living coparcener to a living daughter.

Overturning the phulvati and dannmma decision, the court had precluded that the effects of section 6 are neither prospective nor retrospective, but rather retroactive in nature. The concept as thrown light on by Supreme Court, means that from and on November 9, 2005, the daughter will have the same rights of the coparcenery as her father, but depending on a past event, namely the daughter's birth. The effects are retroactive because the rights would not have existed initially if the daughter had never given birth, which had happened formerly. The court's perspective fills the legal gap regarding the time effect of these provisions.

The SC made additions that a notional partition as such not imply what an actual partition has occurred. Because notional partition is a legal fiction, it should only be used and implied to a certain extent and for the purposes it was intended for. In the this case, notional partition is created to determine each coparcener's share of the joint Hindu family.

The court emphasised that the distribution and fixation of shares based on notional partition are not final, as coparcenarrs are constantly being added or remove because they are being born or are dying thus can lead to an increase or decrease the portions of the other coparceners. It also decided that a claim by daughter can be made to her portion of the joint family property even if the notional partition is completed before November 9, 2005, because the notional partition is not an actual partition and the coparcenary property does not cease to exist just because of it.

In addition, in response to the defendant's asserted that section 97 of CPC states that if no suit is filed by any of the parties contesting the preliminary decree within a finite time, the preliminary decree is deemed to be final, the court had ruled that in this case, as provided by the section that if the parties do not file a suit, the section which is mentioned above applies, but not if a third party is involved. Based on previous decisions, the court had also ruled that a decree which is preliminary is not final and which is not only passed to determine the shares of coparceners as individuals. It is the final decree that brings the actual division in order.

Even after a preliminary decree has been issued, the quantification of shares may change as a person is added or minused as a new member is born or a member is dying. They emphasised that the civil procedure code makes no mention of the fact that multiple preliminary decrees cannot be emanted simultaneously.

Taking all as mentioned earlier into account, the Supreme Court ruled out even though a preliminary decree that has been issued by a court, it's the responsibility of the court to consider any changes in the law before issuing the final decree, and thus a daughters have a right to claim her own rights of the coparcenery even if a preliminary decree is issued. The court's paramount ruling in the amendments regard is that a preliminary decree is not the final one by metes and bounds.

The court had ruled out the legislation is clear in terms, stating that any partition completed prior to 20th December of 2004, won't be invalidated through provisions which are amended. However, in order to avoid bogus and fake partitions that would deprive the daughter of her equal rights, it was determined that partitions completed on or after December 20, 2004 must be genuine.

To ensure compliance, the court had provided with that the any kind of partition made after December 20, 2004, must be registered or made pursuant to a court order, and that, as previously stated, any partition made after that date must be registered or made pursuant to a court order. It was added on that an oral partition cannot be used as a defence if the partition is not carried out in accordance with the above-mentioned procedures.

The court had provided with that this is a general rule, but partitions which are oral may be genuine and that an exception can be held up in those cases. However, the burden of proving falls heavily on the defence to prove the authenticity of partitions which take place orally. Few of cases, as well as supporting evidence, must be presented in front of court of justice for that purpose: Separate possession of family, Appropriation of income, Entry in revenue records, Other public documents.

The cases of Prakash v. Phulavati [40]and the case of Mangammal v. T.B. Raju & Ors[41]were overruled because, regardless of the father's living status, the daughter is entitled to coparcenary from birth. As for the crystallisation's scope of partition, the ruling given in Danamma @ Suman Surpur & Anr. v. Amar[42]was overruled. The ruling has clarified the law and established that the amendments made to the Hindu Succession Act, 1956, granting daughters equal rights to inherit ancestral property, will take effect retroactively.

Gender cannot be used as a reason to deny someone's inheritance rights, according to the court. The Supreme Court's interpretation has removed male primacy over Hindu ancestral property. Giving an equal coparcenary rights to the daughters is in accordance with the Indian constitution's spirit of equality. It is a huge push for women who lack financial resources and are frequently marginalised by male family members. The fact that property rights of women are not decided by will but by law is significant.

Hindu women's status was always subjected to male family members, which is one of the reason why the HAS was passed in 1956, the legislators didn't see the need to grant daughters rights to the father's property, because the idea of a daughter marrying into another family meant she shouldn't be entitled to anything from her father's estate. Due to 2005 amendment, the equality guaranteed through Indian Constitution was restored, and the provisions granted son and daughter in a JHF equal status.

Though there is some ambiguity in regards to validly adopted daughters, as this term is not mentioned in the amended Act, and her rights to inherit her father's property, there is still some ambiguity. Also, because the status of son and daughter is equal as per the Act's section 6, the children of the daughter will be treated as coparceners in the same way as the children of the son.

The patriarchy has been gradually dismantled in society. But prior to the development of the equality rights in the world, the society was completely patriarchal. The male heir was given first priority and was given everything: the title, the inheritance of his parents' wealth and estate, devolutions and more.

Women's rights have recently been accorded to them in way the same as that men's rights have been accorded to men. People of all genders have the right to equality under the law in various countries' constitutions. Female heirs had no rights as per the HAS of 1956, but the Amended Act of 2005 says a lot of gender equality and inheritance. The primary goal under Act is to ensure that men and female both heirs have equal rights to the title of coparceners in the family estate.

References: End-Notes:
  1. Sastri Yagnapurushdasji vs Muldas Bhuradas Vaishya (1959) 61 BOMLR 1016
  2. Rutcheputty v. Rajendra 1839,2 M.I.A, 132
  3. Collector of Madras v. Mootoo Rantalinga 1(1968) 12 M.I.A 397
  4. As per Sir Dinshaw Mulla
  5. Attorney General of Ceylon v. Arunachalam Chettiar [1957] 3 WLR 293
  6. Rukhmbai vs. Lala Laxmi Narayan 1960 SCR(2) 253
  7. Rajagopal vs. Padmini 1995 SCC(2) 630
  8. Chhotelal and others vs Jhandey Lal and another AIR 1972 All 424
  9. Section 2(3) of the Income Tax Act
  10. Surjit Lal Chhabda vs.CIT. 1976 AIR 109, 1976 SCR (2) 164
  11. Gur Narain Das v. Gur tahal Das1952 AIR 225, 1952 SCR 869
  12. CIT v. Gomedalli Lakshminarayan (1935) 37 BOMLR 692, 159 Ind Cas 424
  13. Sudarshan v. Narasimhulu (1902) ILR 25 Mad 149
  14. Rohit Chauhan Vs. Surinder Singh & Ors (2013) 9 SCC 419
  15. Commissioner of Gift-tax v. N.S. Getty Chettiar 1971 AIR 2410, 1972 SCR (1) 736
  16. Moro Vishvanath v. Ganesh Vithal (1873) 57 Bom. H.C. Reports 444
  17. Additional Commissioner of I.T. v. P.L. Karuppan Chettiar AIR 1979 Mad 1, 1978 114 ITR 523 Mad
  18. Bhagwat Prasad Bhagat @ Bhagwa vs Shankar Bhagat & Ors on 27 April, 2009
  19. Bhaiya Ramanuj Pratap Deo vs Lalu Maheshanuj Pratap Deo & Ors. 1981 AIR 1937, 1982 SCR (1) 417
  20. M.Yogendra & Ors vs Leelamma N. & Ors on 29 July, 2009
  21. Man Singh Vs. Ram Kala AIR 2011 SC 1542
  22. Prakash & ORS. Vs. Phulavati & Ors AIR 2011 KAR 78
  23. G.Sekhar versus Geeta and others (2009) 78 AIC 138(SC)
  24. G.Sekhar versus Geeta and others (2009) 78 AIC 138(SC)
  25. S.L Srinivasa Jute Twine Mills (P) Ltd v. Union Of India, 2206 SCC ( L&S) 440
  26. Shyam Sunder v. Ram Kumar, (2001) 8SCC24
  27. Danamma @ Suman Surpur v. Amar, AIR 2018 SC 721.
  28. Prakash & ORS. Vs. Phulavati & Ors AIR 2011 KAR 78
  29. Prakash & ORS. Vs. Phulavati & Ors AIR 2011 KAR 78
  30. Danamma @ Suman Surpur v. Amar, AIR 2018 SC 721.
  31. Ganduri Koteshwaramma and another v. Chakiri Yanadi and another, 2011 (9) SCC 788
  32. Danamma @ Suman Surpur v. Amar, AIR 2018 SC 721.
  33. Prakash & ORS. Vs. Phulavati & Ors AIR 2011 KAR 78
  34. Ms. Vaishali Satish Ganorkar & Anr. v. Mr. Satish Keshaorao Ganorkar & Ors, 2012(2) ALL MR 737
  35. Shri Badrinarayan Shankar Bhandari & Ors. v. Ompraskash Shankar AIR 2014, BOM 151
  36. Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1
  37. Prakash & ORS. Vs. Phulavati & Ors AIR 2011 KAR 78
  38. Danamma @ Suman Surpur v. Amar, AIR 2018 SC 721.
  39. Prakash & ORS. Vs. Phulavati & Ors AIR 2011 KAR 78
  40. Prakash & ORS. Vs. Phulavati & Ors AIR 2011 KAR 78
  41. Mangammal @ Thulasi and Anr. vs. T.B.Raju and Ors. in Civil Appeal No.1933 of 2009 dated 19.04.2018.
  42. Danamma @ Suman Surpur v. Amar, AIR 2018 SC 721.
Suggested Articles:
  1. Can Women be Karta
  2. Vineeta Sharma v. Rakesh Sharma; An Case Analysis
  3. Coparcenary Rights of Major Unmarried Hindu Daughters

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