Vineeta Sharma vs Rakesh Sharma & Ors.

Hindu Succession Act, 1956 – s.6 as amended by Hindu Succession (Amendment) Act, 2005 – Explanation to s.6(5) – Plea of oral partition – Held: In view of the rigor of provisions of Explanation to s.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 fully registered under the provisions of the 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 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 cannot be accepted and to be rejected outrightly. Hindu Succession Act, 1956 – s.6 as amended by Hindu Succession (Amendment) Act, 2005 – Enlargement of daughter’s rights – Held: Under the proviso to s.6 before the amendment made in the year 2005 in case a coparcener died leaving behind female relative of class-I heir or a male descendant claiming through such class-I female heir, the daughter was one of them – s.6, as substituted, presupposes the existence of coparcenary – It is only the case of the enlargement of the rights of the daughters – The rights of other relatives remain unaffected as prevailed in the proviso to s.6 as it stood before amendment – The classic shastric Hindu Law excluded the daughter from being coparcener, which injustice has now been done away with by amending the provisions in consonance with the spirit of the Constitution.

Hindu Succession Act, 1956 – s.6 as amended by Hindu Succession (Amendment) Act, 2005 – Retroactive application – Held: Though the rights can be claimed, w.e.f. 09.09.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener – A retroactive statute is the one that does not operate retrospectively – It operates in futuro – However, its operation is based upon the character or status that arose earlier – Characteristic or event which happened in the past or requisites which had been drawn from antecedent events – Under the amended s.6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act. Hindu Succession Act, 1956 – s.6 as amended by Hindu Succession (Amendment) Act, 2005 – Obstructed and unobstructed heritage – Unobstructed heritage takes place by birth, and the obstructed heritage takes place after the death of the owner – It is significant to note that u/s. 6 by birth, right is given that is called unobstructed heritage – It is not the obstructed heritage depending upon the owner’s death – Thus, coparcener father need not be alive on 09.09.2005, date of substitution of provisions of s.6.

Answering the reference, the Court

HELD: 1. The amended provisions of section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener “in her own right” and “in the same manner as the son.” Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property “as she would have had if she had been a son”. The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 09.09.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated. [Para 55][190-H; 191-A-C]

2. The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended section 6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act. [Para 56] [191-D-E]

3. Section 6(2) provides when the female Hindu shall hold the property to which she becomes entitled under section 6(1), she will be bound to follow rigors of coparcenary ownership, and can dispose of the property by testamentary mode. [Para 60] [194-C-D]

4. With respect to a Hindu who dies after the commencement of the Amendment Act, 2005, as provided in section 6(3) his interest shall pass by testamentary or intestate succession and not by survivorship, and there is a deemed partition of the coparcenary property in order to ascertain the shares which would have been allotted to his heirs had there been a partition. The daughter is to be allotted the same share as a son; even surviving child of pre-deceased daughter or son are given a share in case child has also died then surviving child of such pre-deceased child of a pre-deceased son or pre-deceased daughter would be allotted the same share, had they been alive at the time of deemed partition. Thus, there is a sea-change in substituted section 6. In case of death of coparcener after 9.9.2005, succession is not by survivorship but in accordance with section 6(3)(1). The Explanation to section 6(3) is the same as Explanation I to section 6 as originally enacted. Section 6(4) makes a daughter liable in the same manner as that of a son. The daughter, grand-daughter, or great-grand-daughter, as the case may be, is equally bound to follow the pious obligation under the Hindu Law to discharge any such debt. The proviso saves the right of the creditor with respect to the debt contracted before the commencement of Amendment Act, 2005. The provisions contained in section 6(4) also make it clear that provisions of section 6 are not retrospective as the rights and liabilities are both from the commencement of the Amendment Act. [Para 61][194-D-H]

5. The proviso to section 6(1) and section 6(5) saves any partition effected before 20.12.2004. However, Explanation to section 6(5) recognises partition effected by execution of a deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. Other forms of partition have not been recognised under the definition of ‘partition’ in the Explanation. [Para 62][195-A-B]

6. Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son. The expression used in section 6 is that she becomes coparcener in the same manner as a son. By adoption also, the status of coparcener can be conferred. The concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under the provisions of section 6(1)(a) and 6(1)(b). Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage. According to the Mitakshara coparcenary Hindu law, as administered which is recognised in section 6(1), it is not necessary that there should be a living, coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment, i.e., 09.09.2005 with saving of past transactions as provided in the proviso to section 6(1) read with section 6(5). [Para 63][195-B-E]

7. The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 09.09.2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 09.09.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted section 6(3). [Para 64][195-F-H]

8. Under the proviso to section 6 before the amendment made in the year 2005 in case a coparcener died leaving behind female relative of Class I heir or a male descendant claiming through such Class I female heir, the daughter was one of them. Section 6, as substituted, presupposes the existence of coparcenary. It is only the case of the enlargement of the rights of the daughters. The rights of other relatives remain unaffected as prevailed in the proviso to section 6 as it stood before amendment. [Para 65][196-A-B]

9. As per the Mitakshara law, no coparcener has any fixed share. It keeps on fluctuating by birth or by death. It is the said principle of administration of Mitakshara coparcenary carried forward in statutory provisions of section 6. Even if a coparcener had left behind female heir of Class I or a male claiming through such female Class I heir, there is no disruption of coparcenary by statutory fiction of partition. Fiction is only for ascertaining the share of a deceased coparcener, which would be allotted to him as and when actual partition takes place. The deemed fiction of partition is for that limited purpose. The classic Shastric Hindu law excluded the daughter from being coparcener, which injustice has now been done away with by amending the provisions in consonance with the spirit of the Constitution. [Para 66] [196-C-D]

10. A special definition of partition has been carved out in the explanation to section 6(5). The intendment of the provisions is not to jeopardise the 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. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. This Court reiterates that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. This Court says so for exceptionally good cases where partition is proved conclusively and the courts are cautioned that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. It is also taken note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place. [Para 127][234-D-H; 235-A-C]

11. The expression used in Explanation to Section 6(5) ‘partition effected by a decree of a court’ would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court effects partition. A preliminary decree declares share but does not effect the actual partition, that is effected by passing of a final decree; thus, statutory provisions are to be given full effect, whether partition is actually carried out as per the intendment of the Act is to be found out by Court. Even if partition is supported by a registered document it is necessary to prove it had been given effect to and acted upon and is not otherwise sham or invalid or carried out by a final decree of a court. In case partition, in fact, had been worked out finally in toto as if it would have been carried out in the same manner as if affected by a decree of a court, it can be recognized, not otherwise. A partition made by execution of deed duly registered under the Registration Act, 1908, also refers to completed event of partition not merely intendment to separate, is to be borne in mind while dealing with the special provisions of Section 6(5) conferring rights on a daughter. There is a clear legislative departure with respect to proof of partition which prevailed earlier; thus, the Court may recognise the other mode of partition in exceptional cases based upon continuous evidence for a long time in the shape of public document not mere stray entries then only it would not be in consonance with the spirit of the provisions of Section 6(5) and its Explanation. [Para 128] [235-D-G]

12. Resultantly, the reference is answered as under:

(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 09.09.2005 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.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The 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 the Schedule to the Act of 1956 or male relative of such female. 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.

(v) In view of 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. However, 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 cannot be accepted and to be rejected outrightly. [Para 129][235-H; 236-E-F]

Prakash & Ors. v. Phulavati & Ors. (2016) 2 SCC 36: [2015] 12 SCR 579 – overruled.

Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343 : [2018] 2 SCR 553 –

partly overruled.

Sunil Kumar & Anr. v. Ram Parkash & Ors., (1988) 2 SCC 77 : [1988] 2 SCR 623; Sheela Devi v. Lal Chand, (2006) 8 SCC 581 : [2006] 6 Suppl. SCR 874; Smt. Sitabai & Anr. v. Ramchandra, AIR 1970 SC 343 : [1970] 2 SCR 1; State Bank of India v. Ghamandi Ram

(dead) through Gurbax Rai, (1969) 2 SCC 33 : [1969]

3 SCR 681; Controller of Estate Duty, Madras v. Alladi Kuppuswamy, (1977) 3 SCC 385 : [1977] 3 SCR 721; Satrughan Isser v. Sabujpari & Ors., AIR 1967 SC 272 : [1967] 1 SCR 7; Bhagwan Dayal (since deceased) & Anr. v. Mst. Reoti Devi AIR 1962 SC 287 : [1962] 3 SCR 440; Surjit Lal Chhabda v. Commissioner of Income Tax (1976) 3 SCC 142 : [1976] 2 SCR 164; State of Maharashtra v. Narayan Rao Sham Rao Deshmukh & Ors., (1985) 2 SCC 321 : [1985] 3 SCR 358;

Commissioner of Income Tax, Poona v. H.H. Raja of Bhor (1967) (65) ITR 634; Vellikannu v. R.

Singaperumal & Anr., (2005) 6 SCC 622 : [2005] 1 Suppl. SCR 160; Rohit Chauhan v. Surinder Singh & Ors., (2013) 9 SCC 419 : [2013] 7 SCR 897; Shankara Cooperative Housing Society Ltd. v. M. Prabhakar & Ors., (2011) 5 SCC 607 : [2011] 7 SCR 468; Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, (1986) 1 SCC

366 : [1985] 3 Suppl. SCR 169; Darshan Singh etc. v. Ram Pal Singh & Anr. (1992) 1 Suppl. SCC 191 : [1990]

3 Suppl. SCR 212; S. Sai Reddy v. S. Narayana Reddy & Ors. (1991) 3 SCC 647; Prema v. Nanje Gowda AIR 2011 SC 2077 : [2011] 8 SCR 55; Ganduri

Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., (2011)

9 SCC 788 : [2011] 12 SCR 968; Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita Saran Bubna and Ors. (2009) 9 SCC 689 : [2009] 14 SCR 40 – relied on.

Kale v. Deputy Director of Consolidation (1976) 3 SCC

119 : [1976] 3 SCR 202; G. Sekar v. Geetha & Ors., (2009) 6 SCC 99 : [2009] 5 SCR 1005; Anthonyswamy v. Chhinnaswamy, (1969) 3 SCC 15 : [1970] 2 SCR 648; Shashikalabai (Smt) v. The State of Maharashtra & Anr. (1998) 5 SCC 332; Mangammal v. T.B. Raju, (2018) 15 SCC 662 : [2018] 6 SCR 776; Puttrangamma & Ors. v. M.S. Ranganna & Ors., AIR 1968 SC 1018 : [1968] 3 SCR 119; Mancheri Puthusseri Ahmed & Ors. v. Kuthiravattam Estate Receiver, (1996) 6 SCC 185 : [1996] 5 Suppl. SCR 813; Anar Devi & Ors. v. Parmeshwari Devi & Ors., (2006) 8 SCC 656 : [2006]

6 Suppl. SCR 370; Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum & Ors., (1978) 3 SCC

383 : [1978] 3 SCR 761; S. Sundaram Pillai & Ors. v. V. R. Pattabiraman & Ors., (1985) 1 SCC 591 : [1985]

2 SCR 643; Sripad Gajanan Suthankar v. Dattaram Kashinath Suthankar & Ors. (1974) 2 SCC 156 : [1974]

3 SCR 474; Kanai Lal Sur v. Paramnidhi Sadhukhan, [1958] SCR 360; Lt. Amrendra Col. Prithi Pal Singh Bedi v. Union of India (1982) 3 SCC 140 : [1983] 1 SCR 393; Sathyaprema Manjunatha Gowda (Smt) v. Controller of Estate Duty, Karnataka, (1997) 10 SCC

684 : [1997] 3 SCR 586; M. Yogendra & Ors. v. Leelamma N. & Ors., (2009) 15 SCC 184 : [2009] 12 SCR 38; Dharma Shamrao Agalawe v. Pandurang

Miragu Agalwe & Ors. (1988) 2 SCC 126 : [1988] 2 SCR 1077; Gowli Buddanna v. Commissioner of Income Tax, Mysore, AIR 1966 SC 1523 : [1966] 3 SCR 224; Thamma Venkata Subramma (dead) by LR v. Thamnma Ratamma & Ors. (1987) 3 SCC 294 : [1987] 3 SCR 236; Bhagwati Prasad Sah & Ors. v. Dulhin Rameshwari Kuer & Anr. AIR 1952 SC 72 : [1952] SCR 603; Savita Samvedi (Ms) & Anr. v. Union of India & Ors., (1996) 2 SCC 380 : [1996] 1 SCR 1046; Hardeo Rai v. Sakuntala Devi & Ors., (2008) 7 SCC 46 : [2008] 7 SCR 1; Man Singh (D) by LRs. v. Ram Kala (D) by LRs., AIR 2011 SC 1542 : [2010] 14 SCR 577; I.T. Officer, Calicut v. N.K. Sarada Thampatty, AIR 1991 SC 2035 : [1990] 1 Suppl. SCR 473; Laxmi Narayan Guin & Ors. v. Niranjan Modak, (1985) 1 SCC 270 : [1985] 2 SCR 202; United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd. & Ors., AIR 2000 SC 2957 : [2000] 3 Suppl. SCR 153; Commissioner of Income Tax, Delhi v. S Teja Singh, AIR 1959 SC 352 : [1959] 1 Suppl. SCR 394; State of Travancore-Cochin & Ors. v. Shanmugha Vilas Cashew Nut Factory & Ors., [1954] SCR 53; Bengal Immunity Co. Ltd. v. State of Bihar & Ors., AIR 1955 SC 661 : [1955] 2 SCR 603; Controller of Estate Duty v. Smt. S. Harish Chandra, (1987) 167 ITR 230; Gyarsi Bai v. Dhansukh Lal, AIR 1965 SC 1055 : [1965] 2 SCR 154; Hari Chand Roach v. Hem Chand & Ors. (2010) 14 SCC 294 : [2010] 12 SCR 1125; Shripad Gajanan Suthankar v. Dattaram Kashinath Suthankar, (1974) 2 SCC 156 : [1974] 3 SCR 474; Chinthamani Ammal v. Nandgopal Gounder, (2007) 4 SCC 163 : [2007] 2 SCR 903; Rukhmabai v. Laxminarayan, AIR 1960 SC 335 : [1960] 2 SCR 253; Mudigowda Gowdappa Sankh & Ors. v. Ramchandra Revgowda Sankh (dead) by his LRs. & Anr., AIR 1969 SC 1076 : [1969] 3 SCR 245; Kalwa Devdattam v. Union of India, AIR 1964 SC 880 : [1964] 3 SCR 191; Digambar Patil v. Devram, AIR 1995 SC 1728 : [1995] 2 SCR 133; Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124: [1967] 1 SCR 93 – referred to.

Lokmani & Ors. v. Mahadevamma & Ors. [S.L.P.(C) No.6840 of 2016] Balchandra v. Smt. Poonam & Ors. [SLP (C) No.35994/2015]; Sistia Sarada Devi v. Uppaluri Hari Narayana & Ors. [SLP (C) No.38542/2016]; Girijavva v. Kumar Hanmantagouda & Ors. [SLP (C) No.6403/2019]; Smt. V.L. Jayalakshmi v. V.L. Balakrishna & Ors. [SLP (C) No. 14353/2019]; Indubai v. Yadavrao [SLP (C) No.24901/2019]; B.K. Venkatesh v. B.K. Padmavathi [SLP (C) Nos. 1766-67/2020]; – referred to.

Nagindas Bhagwandas v. Bachoo Hurkissondas, AIR 1915 PC 41; Nanak Chand & Ors. v. Chander Kishore & Ors., AIR 1982 Del. 520; G. Narasimulu & Ors. v. P. Basava Sankaram & Ors., AIR 1925 Mad. 249;

Haridas Narayandas Bhatia v. Devkuvarbai Mulji, AIR 1926 Bom. 408; Raghunadha v. Brozo Kishore, 3 IA

154 (PC); Baijnath Prasad Singh & Ors. v. Tej Bali Singh, AIR 1921 PC 62; Diwan Singh v. Bhaiya Lal, (1997) 2 MP LJ-202; Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma & Ors., 26 IA 113; Bireswar Mookerji & Ors. v. Shib Chunder Roy, 19 IA 101; Amarendra Man Singh Bhramarbar & Anr. v. Sanatan Singh & Ors., AIR 1933 PC 155; Sri

Raghunadha v. Sri Brozo Kishore, 1876 (1) Mad. 69 =

3 IA 154; Badrinarayan Shankar Bhandari v.

Omprakash Shankar Bhandari, AIR 2014 Bom. 151; Ramalinga v. Narayana, AIR 1922 PC 201; Kalyanji Vithaldas & Ors. v. Commissioner of Income Tax, Bengal, AIR 1937 PC 36; Palani Ammal v.

Muthuvenkatachala, AIR 1925 PC 49; Joala Prasad Singh v. Chanderjet Kuer AIR 1938 Pat 278;

Chokalingam v. Muthukaruppan AIR 1938 Mad 849; Ramabadra v. Gopalaswami, AIR 1931 Mad 404; Girja Bai v. Sadashiv, AIR 1916 PC 104, Kawal Nain v. Prabhulal, AIR 1917 PC 39; Gangabai v. Punau Rajwa, AIR 1956 Nag 261; Kedar Nath v. Ratan Singh (1910) 37 IA 161; Mukund Dharman Bhoir & Ors. v. Balkrishna Padmanji & Ors. AIR 1927 PC 224;

Bhagwani v. Mohan Singh AIR 1925 PC 132;

Poornandachi v. Gopalasami, AIR 1936 PC 281; Hari Baksh v. Babu Lal, AIR 1924 PC 126; Katama Natchiar v. Srimat Rajah Moottoo Vijaya Raganadha Bodha Gooroo Swamy Periya Odaya Taver, (1863) 9 MIA 543 – referred to.