Vineeta Sharma v. Rakesh Sharma (2020)

This is the leading case in the paper. The substituted s. 6 makes the daughter of a coparcener a coparcener by birth, but it opens with the words on and from the commencement, and it saves dispositions made before 20 December 2004. Two Division Benches had read those words in opposite ways, and High Courts across the country were deciding partition suits inconsistently.

Vineeta Sharma resolves the conflict, and it does so on a doctrinal footing that goes back to the classical distinction between obstructed and unobstructed heritage. That is why the case teaches Module 2 and Module 3 at once.

Prakash v. Phulavati (2016) 2 SCC 36 held that the substituted s. 6 is not retrospective and applies only where both the coparcener and his daughter were alive on 9 September 2005; that the requirement in the Explanation to s. 6(5) that a partition be registered or by decree can have no application to the statutory notional partition on the opening of succession under the unamended section; and that the provisions of s. 6 are prospective.

Danamma alias Suman Surpur v. Amar (2018) 3 SCC 343 went the other way on the facts. The propositus had died in 2001 leaving two sons, two daughters and a widow, and the daughters were nevertheless given a one-fifth share apiece; the Court observed that the amended provisions confer full rights on the daughter coparcener and that any coparcener, including a daughter, may claim partition.

Mangammal v. T.B. Raju had also treated Prakash v. Phulavati as holding that only living daughters of living coparceners would be entitled.

The connected matters raised the same question in many forms: whether the section is retrospective; whether a daughter takes where her father was not alive in 2005; whether shares may be redistributed where no final decree has been passed; and whether an oral or unregistered partition is saved.

Section 6(1) provides that on and from the commencement of the 2005 Act, in a Mitakshara joint family, the daughter of a coparcener shall (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; and (c) be subject to the same liabilities, any reference to a Hindu Mitakshara coparcener being deemed to include a reference to a daughter of a coparcener. The proviso saves any disposition or alienation, including a partition or testamentary disposition, that had taken place before 20 December 2004 — the date the Bill was presented in the Rajya Sabha.

Section 6(5) provides that nothing in the section applies to a partition effected before 20 December 2004, and its Explanation defines partition as one made by a deed of partition duly registered under the Registration Act 1908, or effected by a decree of a court.

The right is conferred by birth, and birth is an antecedent event. Section 6(1)(a) makes a daughter by birth a coparcener in her own right and in the same manner as the son, and in doing so it gives concrete statutory shape to the classical concept of unobstructed heritage in a Mitakshara coparcenary, which is a right by virtue of birth. Section 6(1)(b) confers the same rights as she would have had if she had been a son; s. 6(1)(c) the same liabilities.

Hence the classification. Though the rights can be claimed with effect from 9 September 2005, the provisions are of retroactive application: they confer benefits based on an antecedent event. The Court defines the three categories carefully, and the definitions should be memorised. A prospective statute operates from the date of its enactment, conferring new rights. A retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is one that does not operate retrospectively; it operates in futuro, but its operation is based upon a character or status that arose earlier — a characteristic or event that happened in the past, or requisites drawn from antecedent events.

Why the father need not have survived. Prakash v. Phulavati had held that the rights accrue to living daughters of living coparceners as on 9 September 2005. The Court disagreed, and the reason is structural: it is not necessary to the formation of a coparcenary, or to becoming a coparcener, that a predecessor coparcener should be alive. What is relevant is birth within the degrees to which the coparcenary extends. Survivorship is the mode of succession, not the mode of formation of a coparcenary. The expression daughter of a living coparcener is not used in the substituted section; the right is given by birth under s. 6(1)(a), and the declaration of that right on a past event was made on 9 September 2005.

What must exist on that date. The coparcenary must exist on 9 September 2005 for the daughter to enjoy the rights conferred, and the daughter herself must be living on that date, irrespective of when she was born. The father need not be.

Why the old notional partition does not defeat the reform. Under the unamended s. 6, where a coparcener was survived by a Class I female heir or a male relative claiming through such a female, a legal fiction of partition immediately before his death was created to ascertain his share, whether or not he could have claimed partition. The Court holds that this fiction did not bring about an actual partition or a disruption of the coparcenary; it existed only to ascertain the deceased's share.

Why the definition of partition in s. 6(5) is so strict. The legislative intention was to avoid sham or bogus transactions designed to defeat the rights conferred on daughters by the 2005 Act. Oral partition was the classical norm; if it counted, any family could produce witnesses to a partition dated before December 2004.

The Court answered the reference in five numbered propositions, and an answer that reproduces them is answering in the Court's own words.

1. The substituted s. 6 confers the status of coparcener on the daughter born before or after the amendment, in the same manner as a son, with the same rights and liabilities.
2. The rights can be claimed by a daughter born earlier with effect from 9 September 2005, with the savings in s. 6(1) as to dispositions, alienations, partitions and testamentary dispositions that took place before 20 December 2004.
3. Since the right in coparcenary is by birth, it is not necessary that the father coparcener should be living as on 9 September 2005.
4. The statutory fiction of partition created by the proviso to the original s. 6 did not bring about an actual partition or disruption of the coparcenary; it was only for ascertaining the share of the deceased coparcener where he was survived by a Class I female heir or a male relative of such a female. The substituted section must be given full effect, and notwithstanding that a preliminary decree has been passed, daughters are to be given a share equal to a son's in pending proceedings for a final decree or in appeal.
5. Given the rigour of the Explanation to s. 6(5), a plea of oral partition cannot be accepted, the statutorily recognised modes being a registered deed or a decree of court; exceptionally, where the plea is supported by public documents and the partition is finally evinced in the same manner as if effected by a decree, it may be accepted, but a plea based on oral evidence alone must be rejected outright.

The views to the contrary in Prakash v. Phulavati and Mangammal v. T.B. Raju were overruled, and Danamma was partly overruled to the extent it was contrary. Recognising that suits and appeals were pending in courts across the country and had been delayed by the conflicting decisions, the Court requested that pending matters be decided as far as possible within six months.

Liabilities as well as rights. Section 6(4) makes a daughter liable in the same manner as a son: the daughter, granddaughter and great-granddaughter are equally bound by the pious obligation to discharge such a debt. And because s. 6(4) works from the commencement of the amending Act for both rights and liabilities, the section is not retrospective in that respect either.

Preliminary decrees. Ganduri Koteshwaramma v. Chakiri Yanadi had held that daughters' rights under the amended s. 6 are not lost merely because a preliminary decree has been passed, since partition becomes final only on the final decree, so that the preliminary decree must be amended to take account of the change in the law. Answer (iv) adopts that.

Run three questions, in this order, in every post-2005 problem.

1. Was there a coparcenary in existence on 9 September 2005?
2. Was the daughter alive on 9 September 2005?
3. Was there a registered partition deed or a court decree before 20 December 2004?

Yes, yes, no — and she is a coparcener, whether or not her father lived to see it.

Get the vocabulary right. The section is retroactive. Saying retrospective is not a slip of the pen; it is the very error the Court corrected, and it carries the wrong consequence — that vested rights are impaired.

Show the doctrinal move. The Court decided a modern statutory question with a classical distinction. If the daughter's right were obstructed heritage she would need someone to die; because it is unobstructed, she has it from birth and merely claims it from 2005. That sentence is worth a paragraph of description.

And know the two dates and what each does. 20 December 2004 saves past transactions; 9 September 2005 is when the right becomes claimable and when the daughter must have been alive.