Background:
The Hindu Succession Act, 1956 (“Act”) adhered to the Mitakshara law that originally
established the rule of survivorship and regulated the distribution of assets in instances of
intestate succession among Hindus. Hindu Undivided Family (“HUF”) usually consists of a
Karta and coparcener/s and occasionally, with member. Coparcener is a member of an HUF who
has an undivided interest over the coparcenary property by birth and an authority to initiate a
partition of the same at their own discretion. A property may be considered as coparcenary
property which is either inherited by a Hindu from his father, grandfather, or great grandfather,
or acquired by the HUF after its constitution or introduced by any of the coparceners to the HUF.
It is important to note that while a coparcener must be a member of the family, not every family
member meets the criteria of a coparcener. Originally the eldest male member among the
coparceners was considered as the Karta of the family.
Before the year 2005, these coparcenary rights were restricted to the male members of the HUF. This paradigm underwent substantial changes when the Hindu Succession Amendment Act of 2005 which was made effective from September 9, 2005 (“Amendment Act”) conferred legal rights and responsibilities in coparcenary property to daughters born into a HUFat par with those of sons. The Amendment Act revoked the rule of survivorship and substituted it with the principles of ‘testamentary’ and ‘intestate’ succession thereby granting daughters coparcenary rights from birth.
Contentions and Findings:
However, the Amendment Act led to multiple legal ambiguities and one of them was whether a female coparcener be a Karta? In the case of Mrs. Sujata Sharma vs Shri Manu Gupta and others 1 , the Hon’ble Delhi High Court identified no legal restriction preventing the eldest female coparcener of an HUF from assuming the position of its Karta and held that an eldest female member of a family, being the coparcener in an HUF, may become a Karta of an HUF in the absence of the eldest male coparcener.. With the removal of the disqualification between a son and a daughter through the Amendment Act, . The Amendment Act also explicitly states that women will continue to be part of their father’s HUF even after marriage and shall not be prevented from exercising rights in the coparcenary property.
Another issue that arose out of the ambiguity of the Section 6 of the Amended Act was if the same could be retrospectively applied. Some argued that, in the absence of explicit provisions or an implied contrary intention, an amendment addressing a substantive right is prospective and does not impact vested rights. This viewpoint was based on the principle that succession does not remain temporarily suspended and takes effect upon the death of a person, thereby crystallizing the rights of the heirs on that day, even if a physical partition has not occurred. Consequently, the subsequent amendment cannot reverse what was previously established by reopening the partition, even if only in theory. The opposing viewpoint was that, considering the amendment as a form of social or welfare legislation aimed at eliminating discrimination against women the amendment should be interpreted as having retrospective effect. In the case of Prakash and others versus Phulvati and others 2 (“Phulvati Case”), the Hon’ble Supreme Court of India held that the provisions of the Amendment Act apply prospectively, granting coparcenary rights only to a living daughter of a living coparcener as of September 9, 2005.. While later in the case of Danamma @ Suman Surpur and another versus Amar and others 3 (“Danamma Case”), the Hon’ble Supreme Court of India concluded that the provisions of the Act should be retrospectively applied. This means that daughters were entitled to a share in the coparcenary property, even if their father had passed away before the enactment of the Amendment Act in 2005. For the sake of easy reference Phulvati Case and Danamma Case are collectively referred to as “Phulvati and Danamma Cases”.
Recognizing the conflicting rulings in the Phulvati and Danamma Cases, in the case of Vineeta Sharma versus Rakesh Sharma and others 4 (“Vineeta Sharma Case”) on August 11, 2020, a three-member bench of the Hon’ble Supreme Court of India not only elucidated the concept and extent of the Amended Act by examining the comprehensive body of case law on the matter but also resolved the inconsistency arising from the disparate interpretations of the law in the Phulvati and Danamma Cases. Views expressed in Phulvati Case and one Mangammal vs T.B. Raju and others have been overruled by the ratio decided in the Vineeta Sharma Case. Views expressed in Danamma Case are partly overruled to the extent they are contrary to the ratio decided in the Vineeta Sharma Case.
Unlike a "prospective statute" that grants new rights from the date of enactment, a "retrospective statute" acts backward, potentially diminishing or eliminating "vested rights" acquired under the laws in place at the time. It's important to note that a "retroactive statute" doesn't apply to the past; instead, it operates in the future, with its functioning determined by the status or character that initially emerged. The Hon’ble Supreme Court of India in the Vineeta Sharma Case held that Section 6 of the Amendment Act is applicable retroactively and thus the daughter's coparcenary rights under Section 6 remain unaffected by the father's death prior to the commencement of the Amendment Act.
With this background, the female coparceners will be entitled to call for partition of the HUF property where partitions are not yet carried out through the modes permitted. It has been clarified in the Vineeta Sharma Case that where preliminary decrees have been passed in partition suits irrespective whether such preliminary decrees are subject matter of challenge in appeal or not, the concerned courts will be now required to recognize share of the female coparceners while passing the final decrees in such suits or orders in such appeals.
Section 6 of the Amendment Act protects the disposition, alienation, partition, or testamentary distribution made before December 20, 2004 5 provided such partitions are effectuated by way of a registered instrument or by a decree of a court. However, the courts may recognize oral partitions also only in exceptional cases where such partitions are supported by public documents and are finally evinced in the same manner as if they had been affected by a decree of a court as clarified in the Vineeta Sharma Case.
Conclusion:
The Amendment Act has been a crucial turning point endowing daughters with equal coparcenary status from the moment of birth and thereby dismantling the long debated gender bias. The daughters will now be entitled to exercise the same rights that were being exercised by the sons in the coparcenary property including right to call for partition. Fundamentally, the transition from gender-based discrimination to the establishment of gender-equitable coparcenary rights signifies a significant progress in Indian family law. However, now with this recognition it is interesting to see if a female coparcener can start her own HUF post her marriage (which a married son is permitted) while she continues to be a coparcener in her father’s HUF.