On 11-8-2020, the Supreme Court of India passed a landmark judgment in Vineeta Sharma v. Rakesh Sharma[1], stating that the Hindu Succession (Amendment) Act, 2005[2] will have a retrospective effect. The 2005 Amendment amended Section 6 of the Act in order to align with the constitutional belief of gender equality. Under the amendment, the daughter of the coparcener shall by birth become a coparcener in her own right in the same manner as the son. Vineeta Sharma case[3] settled the matter in the question – whether the 2005 Amendment had deemed the daughter to have the same right as of a son in the coparcenary property irrespective of the father being alive before the Amendment.
The judgment was decided by a three-Judge Bench comprising of Arun Mishra, M. R. Shah and S. Abdul Nazeer, JJ. and was authored by Arun Mishra, J. It stated that as the right of being a coparcener is by birth for a son and so is it for a daughter post the 2005 Amendment, and even if the father was not alive on 9-9-2005, it does not obstruct a daughter’s right from claiming her share in the coparcenary property. This judgment resulted in overruling the Supreme Court’s earlier judgments in Prakash v. Phulavati[4] and Mangammal v. T.B. Raju[5] which had held otherwise. Hereby, Vineeta Sharma[6] judgment re-affirmed equality in the treatment of sons and daughters by the law for the purposes of succession.
One of the reasons listed by the Supreme Court in the recent judgment to put the daughter at par with the son is that coparcenary rights are formed since birth and “it is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive.”[7] The Supreme Court held that notional partition, the proviso to Section 6 of the 2005 Amendment Act[8] mentions, is merely a fiction of partition that is created in order to ascertain the share of the surviving Class I female heirs[9] or male relatives of the female heirs of the deceased coparcener. However, the purpose behind the statutory fiction is “not to bring about the real partition”.[10]
The concept of notional partition is created to give effect to the Explanation to Section 6 of the Hindu Succession (Amendment) Act, 2005[11]. It is a legally formed fiction where partition is assumed to happen between the deceased and his coparceners, immediately before the death of the deceased. Notional partition can be interpreted in the following two ways: (1) narrow interpretation; and (2) broad interpretation.
In the narrow interpretation, notional partition is a partial partition. According to the unamended Section 6, intestate succession happened by notional partition only if any member from Class I heirs mentioned in the Schedule, was alive at the time of the death of the deceased. This indicates that the property divided is like a legal fiction created only to determine the share of the deceased. Whereas the other remaining part of the property continues to be a coparcenary property until an actual partition is effected. In this way, the coparceners have fluctuating undivided joint interest in the coparcenary property. Therefore, the narrow concept of notional partition does not result in the disruption of the joint Hindu Undivided Family. Accordingly, female members who inherit in joint family property under unamended Section 6 (wife, mother and grandmother), will be entitled only to the share which is notionally devolved upon her as per Explanation 1 to Section 6[12] if the actual partition does not take place.
On the other hand, the broader interpretation of notional partition assumes that the actual partition has occurred immediately before the death of the deceased. This interpretation is followed by the Supreme Court in Gurupad Khandappa v. Hirabai Khandappa Magdum[13]. In Uttam v. Saubhag Singh[14], which was decided post 2005 Amendment, the Supreme Court placed reliance on Khandappa case.[15] Going by this interpretation, the fictional assumption should be brought to a logical end. It should be treated and accepted as a concrete reality. Once the fictional assumption is made, it is not irrevocable as the “… assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it.”[16]
As a result of following the broader interpretation of notional partition, the joint Hindu Undivided Family no longer exists, by converting the coparcenary property into separate property of the deceased’s heirs. Accordingly, female members who inherit in joint female property under amended Section 6 will be entitled to both the interest which she has inherited and the share which is notionally devolved upon her as per Explanation 1 to Section 6.[17] However, it must be noted that broader interpretation of the fiction can be used only to ascertain the shares of the deceased and cannot be carried beyond that to say that the female heirs cease to be members of the joint family.[18] Therefore, broader interpretation of the concept of notional partition is used to enlarge the scope of the shares which women are entitled to so as to be in tandem with the Statement of Objects and Reasons of the said 2005 Amendment Act.
In Vineeta Sharma[19], the Court relied on the narrow interpretation of notional partition by holding that “The entire partition of the coparcenary is not provided by deemed fiction; otherwise, coparcenary could not have continued which is by birth, and the death of one coparcener would have brought an end to it.”[20] This results in keeping the spirit of joint Hindu family intact.[21] This rationale is given to justify that coparcenary rights are available since birth and hence, daughters will get share in the coparcenary property irrespective of the father being alive or not.
However, due to this reasoning, the female member (who cannot ask for partition since they are not coparceners) who inherits the joint family property will have to bear the brunt if she dies before any actual partition is initiated by the coparceners. This is because, while they will be entitled to the share devolved upon notionally as per amended Section 6, they will not receive any right in the joint family property. If the Supreme Court would have followed the broad interpretation instead, it could have yielded a similar result of vesting the daughter with the same right as of the son in the coparcenary property irrespective of father being alive. Moreover, it would have granted the daughter-in-law her share of the property without her having to depend on any coparcener to demand for an actual partition in future.
The Supreme Court in Vineeta Sharma[22] judgment traces its way back to the past by following narrow interpretation and ensures that the joint Hindu Undivided Family stays intact. Whereas, the 174th Report of the Law Commission of India[23] and the Consultation Paper on Reform of Family Law, 2018[24] both recommended the abolition of coparcenary and to put an end to the joint Hindu family system. The abolition of coparcenary is the only plausible solution to rectify the inherent biases of the Hindu Succession (Amendment) Act, 2005.
While the decision in Vineeta Sharma[25] is a progressive step forward, however, it raises a lot of issues which are yet to be addressed. The judgment quoted that “Once a daughter, always a daughter … son is a son till he is married.”[26] Many have celebrated this statement, yet it has deep hues of romantic paternalism behind it. By stating so, the Court implied that a daughter can never form her own coparcenary as she will always need to hide behind the shadow of her father, grandfather, brother, husband, or son. This has led to an anomalous situation as sons can start their own coparcenary once they get married and have children.
To say the least, the judgment does not just raise one issue, it raises a couple of them. The issues related to gender inequality still persists. By pushing a narrative shrouded in romantic paternalism, the Court has failed to see that the married women are now double beneficiaries of these laws (same women inherit from the lineage as well as from her marriage). While at the same time it has turned a blind eye towards the men who only inherit property because of a single lineage. This further re-enforces the patriarchal structure of the society in which men are also victims at certain times.
While this judgment surely is a welcoming step, however, it opens floodgates of various questions which are yet to be answered. It will be interesting to know how things unfold with respect to ascertaining the shares of dependent women under the abovementioned circumstances. Moreover, it pushes to shift the discourse regarding gender equality and traditional laws, as the country waits holding its breath anticipating what is to come.
* Third-year law students, Jindal Global Law School, Sonipat.
[1] Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1
[2] Hindu Succession (Amendment) Act, 2005
[3] Supra Note 1.
[6] Supra Note 1.
[7] Supra Note 1 at p. 73, para 75.
[8]Read as “Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20th day of December, 2004.”
[9] The list is mentioned in the Schedule to the Act of 1956.
[10] Supra Note 1 at p. 101, para 101.
[11]Read as “Explanation.—For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.”
[12] Ibid.
[15] Supra Note 13.
[16] Supra Note 13, para 13.
[17] Supra Note 11 .
[18]State of Maharashtra v. Narayan Rao, (1985) 2 SCC 321, para 9
[19] Supra Note 1.
[20]Ibid, at p. 101, para 101.
[21]As coparcenary rights are not derived from any person or event apart from being birth of the coparcener, it satisfies the concept of unobstructed heritage explained by Mulla, cited by the Supreme Court. Therefore, there is no need to take support of the narrow interpretation in order to justify the equal treatment of son and daughter. By following narrow interpretation, the Court wants to keep the concept of Hindu tradition of social togetherness unimpaired. The ulterior motive is to serve the people who are dependent on earning family members and give tax benefits incurring through it.
[22] Supra note 1.
[23] Law Commission Report, Property Rights of Women: Proposed Reforms under the Hindu Law, (Report No. 174, 2000) p. 26, para 5.7.
[24] Law Commission of India, Consultation Paper on Reform of Family Law (2018) p. 126, para 5.12.
[25] Supra Note 1.
[26] Supra Note 1, p. 56, para 50.