I am overwhelmed that my articles on the subject have evinced considerable interest. The amendment to the Hindu Succession Act, 1956 (‘the Act’) by the Hindu Succession Amendment Act, 2005 (‘the Amendment Act’) and the issue of daughters’ right in coparcenary property have now been the subject matter of substantial litigation all over the country. Through my articles published in the
BCAJ in January, 2009; May, 2010; November, 2011; February, 2016; and May, 2018, I made an attempt to analyse and explain the legal position as per the various cases decided by several High Courts and by the Supreme Court of India.
It cannot be disputed that the amendments were beneficial to society and a step towards ensuring equality between males and females in an HUF. However, in view of the imprecise language of the Amendment Act and lack of clarity about what exactly was intended by the Legislature, the amendment was the subject matter of a plethora of court cases all over the country and ultimately some cases went up to the Supreme Court.
In view of the cases decided by the Supreme Court till then, my article published in February, 2016 expressed a hope that the legal position then explained was final. Unfortunately, further decisions came from the Supreme Court. I say unfortunately because as explained in my last article published in May, 2018, confusion was created by two different decisions of the Supreme Court and I had to end the article with the fervent hope that the Apex Court would review its decisions to resolve the conflict.
I am glad to note that the Supreme Court has now tried to resolve the conflict in its recent decision in the case of Vineeta Sharma vs. Rakesh Sharma and others, reported in (2020) 9 SCC 1.
The confusion created by the Supreme Court can be explained in brief as under:
‘The Supreme Court in the case of Sheela Devi vs. Lal Chand [(2006), 8 SCC 581] held that the Amendment Act would have no application in a case where succession was opened in 1989, when the father had passed away. In the case of Eramma vs. Veerupana (AIR 1966 SC 1880), the Supreme Court held that the succession is considered to have opened on the death of a person. Following that principle in the case of Sheela Devi (Supra), the father passed away in 1989 and it was held that the Amendment Act which came into force in September, 2005 would have no application’.
Based on this, the Madras High Court applied the decision to other cases.
Even in the case of Prakash vs. Phulavati (2016) 2 SCC 36 which was decided in 2016, the Supreme Court held that ‘the rights under the Amendment Act are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born’.
Thus, there is a plethora of cases deciding that the father of the claiming daughter should be alive if the daughter makes a claim in the coparcenary property. Moreover, it is necessary that the male Hindu should have been alive on the date of coming into force of the Amendment Act. Thus, at that stage the legal position was that the rights of a daughter under the Amendment Act are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Consequently, I closed my February, 2016 article with the hope that this final legal position would prevail without any further complications.
Unfortunately, this did not happen and in the case of Danamma vs. Amar (2018) 3 SCC 342 the Supreme Court held differently. The principle laid down in earlier cases was not followed and (without considering its own decision in the case of Sheela Devi) it was held that a daughter would have a share even if her father was not alive on the date of coming into force of the Amendment Act. This decision caused confusion. In my June, 2018 article I could end only by expressing the fervent hope that the Apex Court would review its decision in the Danamma case so that the apparent conflict is resolved without resulting in further litigation. Both these decisions were re-ordered by a Bench of two judges. Later, it was decided to refer the issue to a larger Bench.
Therefore, it is heartening to note that the larger Bench of the Supreme Court, after considering all previous decisions, including some High Court cases, has now taken a view which possibly settles all the confusion created earlier and lays down the law which is now final and binding on all. In the recent case of Vineeta Sharma (Supra), the Supreme Court has overruled its earlier decision in the cases of Prakash vs. Phulavati and partly overruled the Danamma decision of interpretation of the Amendment Act.
The final legal position as emerging from this decision can be summarised as follows:
(i) A daughter of a coparcener who is living as on9th September, 2005 shall by birth become a coparcener in her own right in the same manner as a son and have the same rights in the coparcenary property as she would have had if she would have been a son;
(ii) This position applies regardless of when such daughter is born;
(iii) It is not necessary that the father on account of whom a daughter gets a right should be alive.
Hopefully, this closes the chapter of controversies regarding the interpretation of the Amendment Act. I can only express the wish that the legal ingenuity of lawyers does not extend to raising any new issues and allows the final legal position to stand.
