Court Clarifies Application of S.6 of Hindu Succession Act, 1956

The Hindu Succession Act, 1956 (‘Act’) regulates intestate succession among Hindus. In 2005, Section 6 of the Act was amended to confer legal rights and liabilities upon daughters in the ancestral property by birth in a Hindu Undivided Family (‘HUF’), equivalent to that of a son. Since the amendment, a question that came up before the Court was whether section 6 of the Act can be retrospectively applied?

On August 11th 2020, in Vineeta Sharma v Rakesh Sharma the Supreme Court’s three-member bench of Justices Arun Mishra, S. Abdul Nazeer and M.R. Shah sought to clarify this issue, and clear the way for the backlog of cases on this matter.

Issues and Precedent

The case law on this issue has been unclear and contradictory so far. In Prakash v Phulavati (2016), a single-judge bench of the Supreme Court held that section 6, as amended in 2005, did not apply retrospectively, and thus only applied to those cases where both the father and his daughter were alive on the September 9th 2005, when the amendment came into effect. However, in Dannama @ Suman Surpur v Amar (2018), a division judge bench of the Supreme Court held that the amended section conferred full rights upon the daughter, who could claim her rights to the property in question despite her father having passed away in 2001 before the amendment came into force.

The current decision is on a batch of appeals, the main case among which is Vineeta Sharma v Rakesh Sharma. The other cases which were also referred for hearing involve similar questions or disputes. In the main case, the Delhi High Court highlighted the contradiction in the cases of Phulavati and Danamma. In its ruling, however, it referred also to the case of Mangammal v T.B. Raju (2018), where the Supreme Court followed the reasoning in Phulavati. The Delhi High Court thus held that the daughter was not a coparcener when her father passed away in December 1999, as the amendment of 2005 could not be applied retrospectively. The daughter then appealed to the Supreme Court on this matter, and the question was placed before the three-judge bench for final clarification.

Retrospective Application Will Cause Uncertainty and Instability

The Solicitor General, arguing on behalf of the Union of India, said that the act was not retrospective, but retroactive, by which he meant that the amendment allowed daughters to exercise their rights on its commencement, and no earlier. However, he held that the conferment of this coparcenary status could not affect the partition of property that took place before the date when the Bill was tabled before the Rajya Sabha—December 20th 2005.

Senior counsel R. Venkataramani as amicus curiae argued that to grant the amendment retrospective power would be to introduce much uncertainty and instability in the law. He insisted that the amendment must be forward-looking to properly serve the purpose intended by the legislature, or else it would only cause more problems and introduce further litigation into courts. Furthermore, counsel Sridhar Potaraju also argued that ‘daughter of a coparcener’ could only mean the daughter of an alive person who had the status of coparcener at the time of the amendment.

S.6 Must be Retrospectively Applied to Achieve Equality

On the other hand, senior counsel Amit Pai argued that a daughter cannot and should not be deprived of her constitutional right to equality by such concerns and that the relevant amendment must be given full and unfettered effect. To read into the amendment ‘the living daughter of a living coparcener’ is to introduce to the text of the Act a concept that was not supplied by the legislature.

Court’s Ruling

The court considered both the issues of retroactivity and the origins of coparcenary rights. It examined the implications of retroactivity, and whether these were reconcilable with the true origins of coparcenary rights, and held that it was not so. Coparcenary rights, as rights of birth, cannot be ‘conferred’ at a point in time.

Furthermore, the court held that the issue of when the death of the father occurred was not relevant, as survivorship was only the mode of succession, not that of the formation of coparcenary rights. Thus, the bench held that the Court erred in its decision in Phulavati since it did not, in that case, consider how a coparcenary is created. Thus, they cast doubt also on the ruling in Mangammal.

Next, the court addressed the issue of uncertainty or instability. It was held that the very basis of the law in this area—the law of Mitakshara coparcenary—is itself unstable. The share is uncertain until the actual partition takes place, and thus uncertainty is inherent in the law, not in its interpretation or application in the interests of equality.

Finally, on the issue of equality – the major grounds for the ruling – the Court held that the purpose of the relevant amendment was to ensure gender justice as constitutionally protected. The amendment was made with the express intention to overrule the discriminatory and oppressive application of the original statute, and this intention must be given full effect.

Thus, in this ruling, the court emphasised the origins of coparcenary rights and the constitutional protections accorded to women by Article 14, and held that section 6 could be retrospectively applied. The court also took steps to protect the rights of coparcener daughters from unscrupulous acts by rejecting purely oral partitions and setting a higher burden of proof for such issues.