This is the first in a series of posts titled ‘Judgments without tears’ where we try to make complex judgments accessible and fun.
Let me try unpacking Vineeta Sharma v. Rakesh Sharma delivered on 11.08.2020. A 122 page judgment and certainly not the easiest to read. But this is an important judgment and a progressive one, I must add. It considerably expands the number of situations where a daughter can successfully set up a claim for partition against her brothers/relatives and get her share culled out. The judgment is one which lays down good law and was needed because there was a divergence of opinion on the question of the rights of a daughter as a coparcener and, more specifically, in what cases can those rights be sucessfully asserted.
One of the questions, for instance, was that – since daughters were declared coparceners in 2005, for the first time, can a daughter assert those rights even in cases where a partition had already taken place prior to 2005? Would the result be any different, if that partition was merely an oral one? Would such an oral partition be sufficient to deprive the daughter of her rights?
Also, there were doubts as to whether it was necessary for the father of a daughter to be alive in 2005 (when the amendment came in) for the daughter to be able to successfully seek her share and assert her rights as a coparcener? Or could she seek a partition even if her father had passed away before 2005?
This was an important question since, in many cases, sons would argue that, on demise of their father, the property automatically stood vested in them by operation of what lawyers call a ‘notional partition’ and that having happenned, there was nothing for the daughter to seek anymore, after 2005.
These were some of the issues that the court had to adjudicate upon.
Impact of the Judgment
To understand the judgment better and make it come to life, assume there’s a family comprising Father (F), three sons (S1, S2 and S3) and one daughter D. They have a house called ‘Equity House’. This Equity House, as you’d see later, would become the bone of contention and cause for a lot of inequity in the family.
Just to get the basics right, before 2005, the coparcenary would have included only F, S1, S2 and S3 and their children, grandchildren; i.e upto three lineal descendants. In other words, it would comprise : F + his three sons + his grandchildren and + his great grandchildren – would all form part of this premium club. See, no entry for women before 2005.
But after 2005, a Daughter was made an equal coparcener.
So in a case today, the coparcenary would comprise : F, three sons (S1 to S3), one daughter (D), etc. And, D takes equally as the sons and, after 2005, could also seek a partition – to get her share culled out.
This is all by virtue of amendments to S.6 to the Hindu Succession Act (“HSA”) carried out in 2005.
So far so good. Questions, however, remained as to application of this amendment to various situations.
This is what the judgment seeks to resolve. But, instead of discussions on arcane stuff such as ‘prospectivity, retrospectivity and retroactivity’, let’s see how this judgment would play out – practically, in different situations:
For instance, F died in 2017, D’s brothers S1, S2 and S3 assert that they are owners of Equity House to the extent of 1/3rd each and want to sell the house. D feels that she has an equal right in the property and wants to sue in 2019. Can she?
Yes, she can! She has an equal right along-with her brothers. She gets 1/4th. This is by virtue of the fact that she is an equal coparcenar along with her brothers and entitled to an equal share. S.6 of the HSA tells us this. This is, and has been clear, always. The judgment in ‘Vineet Sharma’ doesn’t deal with this situation. It deals with slightly more nuanced situations, which we next turn to:
F died in 1983. Note, that this is before the 2005 amendment in HSA, and before D became a coparcener. D’s brothers S1, S2 and S3 continued to occupy Equity House all these years, while D got married and moved-in with her husband in 2000.
Can she, in 2020, seek partition of Equity House?
Yes. This is where the judgment helps. There is no partition of the property till date and, after 2005, D can seek partition and get her 1/4th share in the property culled out.
She can either choose to live in the property (or a part that is – 1/4th). She can also seek money proceeds of her share by partition and sale of the house or, if the house is in occupation of a tenant, 1/4th of the rent from the house. The Judgment settles this.
Prior to the judgment, an argument could be taken that, since F died in 1983, there was an automatic notional partition in 1983 itself and the rights of S1, S2 and S3 got crystallised- then and there, and their shares got augmented and, since D was not a coparcener back in 1983, she doesn’t get an equal share as a coparcenor.
In other words, the 2005 Amendment, which makes her a coparcener, doesn’t work retrospectively and only if father died after 2005 – would D get a right as a coparcener.
They could argue, before the judgment in Vineeta, that though she does inherit a limited share of 1/4th out of her father’s 1/4th share, as a class 1 legal heir, she does not get equal share as a coparcener will. This is because she wasn’t a coparcener when Dad died and property stood partitioned – then and there – notionally. Therefore, she gets only 1/4th of Dad’s 1/4th i.e a total of measly 1/16th only. Tough luck, they would say – as they shrug their shoulders. Well, not anymore!
The judgment says that, for rights as a coparcener to kick-in, it is not necessary that D’s father should have been alive in 2005. This right arises by virtue of birth of the daughter and may be exercised later. The right does not accrue by the death of the father after 2005. It accrues by birth and the fact that the D was indeed born would allow her to assert these rights after 2005, notwithstanding the fact that D’s father was not alive in 2005. Further, a notional partition (simply speaking, a fictional ascertainment of shares on death of a coparcener) that happens on F’s death (prior to 2005) may be worth something but is still not an actual partition and not the real thing. It does not bring about a real partition. Therefore, the sons can’t argue that the property stood partitioned on F’s death automatically and D won’t have a share. Progressive indeed!
So far so good.
There may be further complexity though:
If the sons turn greedy, and in order to defeat the rights of the daughter, they may argue that a Hindu coparcenary can be partitioned by way of an ‘oral partition’ and no court case or paper work is needed to work that out, and D has no right since an oral partition stood effected prior to 2005 (When the amendments came in – for the first time).
This may be a totally cooked-up plea and meant only to defeat D’s rights, and since no paper work is required to establish this plea, this option can be weaponised by sons/brothers to defeat a daughter/sister’s rights. The judgment deals with this too which neatly leads us to the third situation:
F died in 1995, D’s brothers S1, S2 and S3 continued to occupy Equity House, D got married and moved-in with her husband in 2000. Can she, in 2020, seek partition of Equity House? Wait, not that simple, now, in this situation, S1, S2 and S3 assert that an oral understanding/partition was arrived at, soon after father’s death (in 1995) to the effect that, since a lot of money was spent on D’s marriage, S1 to S3 would succeed to the property and hold it between themselves to the extent of 1/3rd each. There is no evidence of this so-called oral partition though. Would D succeed in such a case in getting an equal share?
After the judgment in Vineeta, given the fact that there is no documentary contemporanous evidence of the alleged oral partition, D will indeed succeed and get her 1/4th share regardless of the plea of ‘oral partition’. In other words, the plea of oral partition will not be worth the paper it is not on 😛
However, the result will be different if the oral partition was indeed substantiated by contemporaneous documentary evidence; Evidence to show that the parties, in 1995, indeed agreed that the sons will get 1/3rd each and D would get nothing. To illustrate this exception, if – back in 1995, the children got into a Memorandum of Family Settlement (“MoFS”) (unregistered) and pursuant thereto, D had given no-objection certificates (“NoC”) to the land authorities – sort of relinquishing her share – and the property was mutated (registered formally in records) in the name of the sons (her brothers) to the extent of 1/3rd each, with her consent. This would defeat her right, the judgment says. Especially, if there was no objection by her all these years to this arrangment. She can’t complain in this case. Even if the MoFS and NoC were unregistered documents.
However, as a safeguard of sorts, as per the judgment, the burden of proof on S-1 to S-3 (sons/brothers) to prove oral partition would be very ‘heavy’ and before the said plea is accepted, the court will insist upon cogent contemporaneous evidence from public documents (such as land authority records/registers, etc) to convince itself that the oral partition indeed took place and was acted upon by all concerned.
NOTE: If the partition in the above example is not oral but by way of registered partition deed, then also, D has no right, and for good reason – as the partition stood closed before 2005.
F died in 1995, his sons S1, S2 and S3 continued to occupy Equity House, D moved-in with her husband in 2000. D, in need of finances, filed a suit for partition in 2002, seeking her share. Since she was not a coparcener back in the day, she sought only a 1/16th share (1/4th share in the 1/4th that her father left – as a class I legal heir and not as a coparcenor). The suit got decreed and she got 1/16th of the value when the house was sold. All of this stood closed prior to 2005. After 2005, she thinks she got a raw deal and wants to assert her rights. Can she, in 2020, seek to assert her rights to the extent of a full 1/4th and not a mere 1/16th?
The answer is No. Since the partition crystallised everyone’s rights well before the amendment in 2005, the same cannot be re-opened now. Court ordered partitions (final decrees) or partitions carried out by way of registered deeds cannot be disturbed or re-opened merely on the ground that, after 2005, a daughter is entitled to a share equal to that of sons.
Some more complexity:
F died in 1995, her brothers S1, S2 and S3 continued to occupy Equity House, D got married and moved-in with her husband in 2000. D, in need of finances, filed a suit for partition in 2002, seeking her share. Since she was not a coparcener back in the day, she sought only a 1/16th share (1/4th share in the 1/4th that her father left – as a class I legal heir and not as a coparcenor, because she simply wasn’t – back then). The Court passes a preliminary decree on 01.01.2004 declaring D’s share to be 1/16th, however, before the partition could be carried out factually/physically and by what the lawyers call – metes and bounds, the amendment of 2005 comes-in and makes D an equal coparcener; And, lo and behold, now – overnight – D is entitled to a 1/4th share and not a 1/16th share, as the preliminary decree holds. The suit hasn’t been disposed-of as yet.
In such a case, D indeed gets a 1/4th (and not a 1/16th) and preliminary decree would be amended to reflect the new reality after 2005 amendment. If the shares were ascertained by preliminary decree (which is only in-principle) but not actually and physically partitioned, the new law applies and D gets equally. By virtue of this judgment, D can get a 1/4th share, notwithstanding the preliminary decree.
This is what the judgment broadly seeks to clarify. A very welcome judgment – indeed.
Hope you find the above practical situations helpful in understanding the import and impact of the judgment. Before signing-off, here is the key para from the judgment:
(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 Class I 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.Vineet Sharma v. Rakesh Sharma & Ors, Civil Appeal No. 32601 of 2018. Delivered on 11.08.2020