12/08/2020
Summary of Hon’ble Supreme Court’s Judgment on *Right of daughter in ancestral property* as coparcener since her birth
The judgment of Hon'ble Supreme Court in *VINEETA SHARMA Vs RAKESH SHARMA* can be summarised as under:
(i) 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 same rights and liabilities.
(ii) 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.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of ClassI
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 share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(v) 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 recognised 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
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 outrightly.
{Para 129}
130. We understand that on this question, suits/appeals are
pending before different High Courts and subordinate courts. The
matters have already been delayed due to legal imbroglio caused by
conflicting decisions. The daughters cannot be deprived of their right
of equality conferred upon them by Section 6. Hence, we request that
the pending matters be decided, as far as possible, within six months.
In view of the aforesaid discussion and answer,
*we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision.*
R E P O R T A B L E
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. DIARY NO.32601 OF 2018
*VINEETA SHARMA Vs RAKESH SHARMA*
ARUN MISHRA, J,S. Abdul Nazeer J,M.R. Shah J.
Dated:August 11, 2020.
