This Article is written by Ashima Gupta student of VIPS, Delhi.
The Amendment of Section 6 in the Hindu Succession Act of 1956 relates to the devolution of intestate succession property.
Under The Hindu Succession Act of 1956 females were prohibited from gaining any portion of property interest. The wife was also not regarded as a direct bloodline of the dead.In 2005 the 1956 Act was revised and the survivorship phenomenon was amended by an amendment to section 6. The succession was classified as either Intestate or Testamentary succession. Testamentary is the way through which one can name any particular individual as their successor for the property.The Hindu Succession (Amendment) Act of 2005 made some notable changes and amended the rule that barred daughter from being a coparcener.
However it was unclear that whether this act will have a retrospective effect or a prospective effect. There has been a contradicting view of the court on this issue in two different cases. In Prakash v Kulawati it was decided that the Act would have a prospective effect but this was contradicted by the court Danamma @Suman Surpur v. Amar Singh in which it was held that the Act would be applicable retrospectively. This issue was discussed in detail in the case of Vineeta Sharma.
- The first issue was whether as per the amended Section 6 of the Act of 2005 the coparcener is required to be alive as on 09.09.2020, for the daughter to be able claim her rights in the coparcenary property?
- Whether the amended Section 6 of the 2005 Act is prospective, retrospective or retroactive?
ARGUMENTS IN FAVOUR OF RETROACTIVITY OF THE AMENDMENT A
- The state contended that the 2005 amendment is retroactive (and not retrospective) in nature. They said that coparcenary is a birthright and it does not accrue by the virtue of the amendment.
- The state further contended that the decision in the case of Prakash v. Phulavati does not lay down a correct position. In that case it was held that there should be a living daughter of a living coparcener on the date of commencement of the Act of 2005 for the purposes of application of Section 6. They contended that in Section 6 the daughter of a coparcener does not imply daughter of a living coparcener. The coparcener does not have to be alive as on the date of commencement of the Amended Act.
- The requirement of registered partition deed as per the explanation to Section 6(5) is directory in nature and not mandatory.
- A daughter who is born before or after 2005 is considered to be a coparcener.
- The language that has been used in Section 6(1)(b) & (c) indicates that the intention of the Parliament was to confer the rights in the coparcenary posterior to the amendment and not anterior.
- It was not mandatory that a partition should be registered as per the already prevailing law.For an oral partition to be recognised it has to be backed by proper evidentiary support.
- It was also contented that both sons and daughters of the coparceners have been conferred the right of becoming coparcener by birth under Section 6. It was said that birth in coparcenary creates interest and thus decision given in Prakash v. Phulavati cannot be given effect as it would be arbitrary in the eyes of law.
ARGUMENTS SUPPORTING PROSPECTIVE NATURE
- Arguments to support the prospective nature was also presented. It was stated that there is no conflict between the decisions that were taken in Prakash v. Phulavati & Danamma @Suman Surpur and Anr v. Amar and that in both the cases the provision under section 6 were held to be prospective in nature. It was also added that the coparcenary rights that are conferred upon the daughters are not by the virtue of their birth, but due to an amendment made in the Hindu Succession Act.
- The interest of a coparceneris merged with the surviving coparcener on his death and so on the death of a coparcener fatherthere would be no surviving coparcener from whom the daughter will succeed. Thusa daughter can succeed only in the interest of a living coparcener. Also if the daughter would be treated as if she was a coparcener before 09.09.2005 it will lead to lead of uncertainty in the ‘working of the law’.
- A lot of uncertainty will be brought in the working of the law if the daughter is treated as coparcener at any point of time in the past before the amendment and it has never been the intentionof the parliament. The intention of the parliament was ‘forward looking’.
- Arguments were also made regarding the rule of survivorship. It was contended that the status of a coparcener is a creation of law and it commences with birth and ends with death or by severance of such status by way of partition or statutory fiction. The status of coparcenary ceases on death . Thus if the father is not aliveon the date of commencement of the amendmentthe daughter cannot succeed as the coparcenary interest had already devolved into the surviving coparceners. Hence, section 6 cannot be applicable to a daughter whose father died before the commencement of the Amendment Act of 2005.
The Supreme Court of India said that an unobstructed heritage takes place by birth, whereas an obstructed heritage takes place after the death of the owner. The Court further stated that the right under Section 6 is given by birth and thus it is an unobstructed heritage, and thus coparcener father need notbe alive as on 09.09.2005 in order for the daughter to inherit the rights over the coparcenary property
Further, the Court said that the rule of succession concerning Mitakshara Coparcenary property was excluded fromthe original Section 6 of the Act and it added value to the mode of survivorship but now the situation is different.The Court also emphasized that coparcenary is the creation of law and the share of coparcenary property keeps fluctuating from time to time as per the births and deaths in the Hindu joint family.The judgment also lays down that a daughter who is born before the commencement of the Amendment Act can claim her coparcenary interests only after the date of amendment and any claim which has been made before that date would not be valid.
In the judgment the court declared that section 6 is retroactive in nature.The court discussed the concepts of prospectively, and retroactivity and retrospectivity . The Court held that a retroactive statute operates based on an event which has happened in the past or requisites which had been drawn from an antecedent event. The Court further stated that the concept of the unobstructed heritage of Mitakshara coparcenarycan be concluded from Section 6(1)(a) and this right is by virtue of birth and since the right is given by birth it is to be considered antecedent event. The provisions would operate on and from the date of the Amendment Act, making it retroactive. It was further added that the provision contained in Section 6(4) makes it clear that the provisions of Section 6 are not retrospective.
If in a situation the living coparcener dies after 9.9.2005, the inheritance would not be according to survivorship but by testamentary or interstate succession as prescribed under Section 6(3)(1) of the Act. The Section 6(5) of the Act prescribes a specific way of effective partition and that too registered under Registration Act, 1908 and any other form of partition is not recognised.
- DANAMMA @SUMAN SURPUR V. AMAR SINGH2018(4)ADJ406
- THE HINDU SUCCESSION (AMENDMENT) ACT OF 2005
- PRAKASH V KULAWATI (2016) 2 SCC 36
- VINEETA SHARMA V. RAKESH SHARMA & OTHERS, ALONG WITH 7 OTHER MATTERS(2020) 9 SCC 1