The question concerning the interpretation of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 in view of the conflicting verdicts rendered in two Division Bench judgments i.e. Prakash and Ors. v. Phulavati and Ors., [(2016) 2 SCC 36] and Danamma @ Suman Surpur and Anr. v. Amar and Ors., [(2018) 3 SCC 343].
Ratio of the Court
- Though the widow or daughter could claim a share, being a Class I heir in the property left by the deceased coparcener, and a widow was entitled, having a right to claim a share in the event of partition daughter was not treated as a coparcener. The goal of gender justice as constitutionally envisaged is achieved though belatedly, and the discrimination made is taken care of by substituting the provisions of Section 6 by Amendment Act, 2005.
- The eligibility of a married daughter must be placed on a par with an unmarried daughter (for she must have been once in that state), to claim the benefit, otherwise, it would be unfair, gender-biased and unreasonable, liable to be struck down Under Article 14 of the Constitution. It suffers from twin vices of gender discrimination inter se among women on account of marriage. [Savita Samvedi (Ms) and Anr. v. Union of India and Ors., 1996 (2) SCC 380]
- Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognized 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).
- The goal of gender justice as constitutionally envisaged is achieved though belatedly, and the discrimination made is taken care of by substituting the provisions of section 6 by Amendment Act, 2005.
- The argument raised that if the father or any other coparcener died before the Amendment Act, 2005, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed; cannot be accepted because it is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth.
- Uncertainty in the right of share in a Mitakshara coparcenary is inhered in its underlying principles, and there is no question of upturning it when the daughter is treated like a son and is given the right by birth; to be exercised from a particular date, i.e., 9.9.2005.
- The protection of rights of daughters as coparcener is envisaged in the substituted Section 6 of the Act of 1956 recognizes the partition brought about by a decree of a court or effected by a registered instrument.
- 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 the same rights and liabilities.
- 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, 2004.
- Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
- 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 coparcenary. The fiction was only for the purpose of ascertaining the 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 a 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 recognized 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 a 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 rightly.