VINEETA SHARMA V. RAKESH SHARMA (2020) - By Isha

 VINEETA SHARMA V. RAKESH SHARMA (2020) – By Isha

Introduction

On 11-8-2020, the Supreme Court of India passed a landmark judgement in the case of Vineeta Sharma v. Rakesh Sharma stating that The Hindu Succession ( Amendment) Act, 2005 will have a retrospective effect meaning thereby that daughters will be the coparceners by birth in the ancestral property whether their father is alive or not on the date when this act was passed.

History

1. Before 1956

• Before 1956 various Shastric and customary laws were prevalent from region to region which governed Hindus and the laws regarding the succession of property.

• Sometimes, it varied in the same region on a caste basis.

2. After The Hindu Succession Act, 1956

• The Hindu succession deals with the laws concerning succession and inheritance. 

• It applies to Hindus, Buddhist, Jain and Sikhs.

•  Section 6 of this Act states that ancestral property to be devolved by survivorship rule only.

• Only males were the coparceners up to 3 generations.

• Women were not recognised as coparceners.

• Under this Section only the lineal descendants of a joint Hindu family would be the coparceners in the property.

• Widows, siblings or any other heirs of the deceased coparceners were not given the right to inherit from the ancestral property. 

2005 Amendment Act, (Sec 6)

• Section 6 of The Hindu Succession Act, 1956 is discriminatory in nature as it infringes the constitutional right of equality in so far as the daughter of a coparcener is concerned.

• The act amended the provision which excluded the coparcenary rights of daughters from the property.

• It stated that daughters would be a coparcener from the birth in the same manner as the son.

• A daughter is also entitled to dispose off her share in the property at her own will.

• If a female coparcener dies before partition, then her children would be eligible for allotment assuming a partition had taken place immediately before her demise. 

Problem with the amended act

• The problem with this amendment was that whether it is essential that father should alive on the date of the enactment of the Act i.e. on 9-9-2005

• This question was answered in the Case of Prakash v. Phulvati (2016)

•  In this case it was stated that the Act of 2005 is prospective in nature.

• Therefore, the property to be devolved there should be a living daughter and a living father to enable the daughter to claim rights over the coparcenary property.

  Danama v. Amar (2018)

• This judgement disagreed with the decision of Phulvati case.

• It held that even though the father had died before 2005 then also the daughter would be entitled to the coparcenary property.

These two case created a confusion on the interpretation of Sec 6 of the Hindu Succession ( Amendment) Act, 2005.

Vineeta Sharma V. Rakesh Sharma (2020)

• In this recent case it was held that daughters have an equal right in the property as of son from the birth, irrespective of whether the father was alive or not before the Hindu Succession Amendment, Act (2005)

• It also stated the amendment would be applicable to living daughters of living coparceners irrespective of when such daughters are born.

Conclusion

Therefore it can be concluded that the Act of 2005 would have a retrospective effective.

The unamended Sec 6 was discriminatory in nature because children must have an equal right in the property of their parents irrespective of whether it’s a girl or a boy. It can lead to depriving daughters of their right in the joint Hindu family.

The judgement created the confusion of both the previous cases and provided a clear cut understanding of the issue.