Facts

Under the Hindu law, before amendment by Hindu Succession (Amendment) Act, 2005, daughters were not coparceners of the undivided family and therefore did  not have same rights as sons in respect of property of the family. The law was amended in the year 2005 to provide that daughters are also co-parceners. The question concerning the interpretation of Section 6 of the Hindu Succession Act, 1956 (‘the Act of 1956’) as amended by Hindu Succession (Amendment) Act, 2005 (‘the Act of 2005’) was referred to a larger Bench in view of the conflicting verdicts rendered in two Division Bench judgments of Supreme Court in Prakash and Ors. v. Phulavatiand Ors. (2016) 2 SCC 36 and Danamma @ Suman Surpur and Anr.  v.  Amar and Ors (2018) 3 SCC 343. Other connected matters,  the question involved was similar; as such, they were also heard along.

 

Issue

After the amendment, issue arose as to whether the right under the amendment     is available to daughters only if their father was alive on the date of amendment being 09.09.2005?

 

Views

One school of thought was that as right of co-parcener is  given to  a  daughter  for the first time by amendment on 09.09.2005, adaughter would get right as co-parcener only if her father is alive on the date of amendment. In Prakash

9. Phulavati (Supra) it was held that the rights under the substituted Section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. Whereas in Danamma v. Amar (Supra) daughter was given equalshare though Father had died earlier in the year 2001.

 

Held

• 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

 

 

• The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December,
• Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.2005.
• The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of The  fiction was only for the purpose of ascertaining share of deceased coparcener when he was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.
• 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 out [Diary No. 32601 of 2018, SLP (C) Nos. 684 of 2016, 35994 of 2015, 38542 of 2016, 6403, 14353, 24901 of  2019 and 1766-1767 of 2020 dt. 11-08-2020)]

Reference was made to following observation in Savita Samvedi (Ms.) v. UOI (1996) (2) SCC 380:

“6.             A common saying is worth pressing into service….

A son is a son until he gets a wife. A daughter is a daughter throughout her life.

7                ….The eligibility of a married daughter must be  placed on  a  par  with an unmarried daughter (for she must havebeen once in that state),…..

to claim the benefit……..(Otherwise, it would be) unfair, gender-biased and unreasonable, liable to be struck downUnder Article 14 of the

 

 

Constitution…. It suffers from twin vices of gender discrimination inter se

among women on account of marriage.”

(Diary No. 32601 of 2018 SLP (C) Nos. 684 of 2016 & Ors dt. 11-8-2020)

Editorial: Prakash and Ors. v. Phulavati and Ors. (2016) 2 SCC 36 is overruled and Danamma @ Suman Surpur and Anr.  v.  Amar and Ors. (2018) 3 SCC 343    is partly overruled.

“It is any day better to stand erect with a broken and bandaged head than to crawl on one’s belly ,  in order to be able to save one’s head.”

– Mahatma Gandhi