Hindu succession 2005 act

madhan (Querist) 09 April 2023 This query is : Resolved
As per THE SUPREME COURT OF INDIA VINEETA SHARMA VS RAKESH SHARMA & ORS CIVIL APPEAL NO. 32601 OF 2018 dated
As Per VINEETA SHARMA VS RAKESH SHARMA & ORS Page No 89 and 90 Para 137.1. 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.
PARA 137. 2. The rights can be claimed by the daughter born earlier with effect from 9.9.2005.
As substituted Section 6 of the Hindu Succession Act, 1956, is Principal Act. As per Principal Act when status of coparcener confer on the Daughters born before amendment. Daughters become coparcener from 1956 act when it came into force i.e., on 17-06-1956 and before the coming into force of amendment 2005 act that is on 08-09-2005. when Daughters born after amendment. Daughters become coparcener from 2005 act that is on 09-09-2005. Daughter who is born before the amendment 2005 act can claim right only with effect from the date of the amendment ie 9th September 2005. and when daughter born prior to 1956 act they are born before Principal Act and when Daughters born before Principal Act are not entitle to equal share in the coparcenary property by birth. only Daughters who are born before amendment or after amendment act are entitle to equal share in the coparcenary property by birth. When Daughters born before amendment. Daughters become coparcener from 1956 act when it came into force i.e., on 17-06-1956 and before the coming into force of amendment 2005 act that is on 08-09-2005. when Daughters born after amendment. Daughters become coparcener from 2005 act that is on 09-09-2005 and When Daughters become coparcener period and date are specified. Daughters born irrespective date of birth cannot be applied. The Coparcenary rights in the property conferred on the daughters can flow only from the day the 1956 Act came into force and accordingly only daughters who are born subsequent to the Act came into force i.e., on 17-06-1956 are entitled to equal share in the coparcenary property along with the sons. when daughter born prior to 1956 act they are born before Principal Act. Therefore it follows the daughters born prior to 17-06-1956 are not entitle to equal share in the coparcenary property and The Coparcenary rights in the property conferred on the daughters from the day the 1956 Act came into force are entitled to equal share in the coparcenary property along with the sons.
As per THE SUPREME COURT OF INDIA VINEETA SHARMA VS RAKESH SHARMA & ORS CIVIL APPEAL NO. 32601 OF 2018 dated 11/08/2020. Para 73
It is by birth that interest in the property is acquired. Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise. (not in any other way)
1) After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. When Daughters Father Die after 1956 act and before Amendment Act, 2005. Unamended section 6 of 1956 act Apply and As per Sec 6(3) Amendment Act, 2005. Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 , his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place.
2) After 1956, now by legal fiction, daughters are treated as coparceners and get right by birth as per substituted Section 6 of the Hindu Succession Act, 1956 Legal fiction Apply to Daughters from 1956 when it came into force i.e., on 17-06-1956 and before the coming into force of amendment 2005 act that is on 08-09-2005. Daughter who is born before the amendment 2005 act can claim right only with effect from the date of the amendment ie 9th September 2005. Daughters are treated as coparceners and get right by birth by legal fiction from 1956 when it came into force i.e., on 17-06-1956 and not otherwise. (not in any other way) Daughter born before 1956 are not treated as coparceners and do not get right by birth by legal fiction.
Hindu Succession (amendment Act 2005)" daughter of a coparcener by birth become a coparcener and have the same rights in the coparcenary property as that of a son. This section substituted the old section. The effect is that the amended section is deem to be on the statute book on the day the Act came into force. On that day the daughter of a coparcener was neither given the status of a coparcener nor she was given the same rights in the coparcenary as that of a son. Therefore the opening words make it clear that such a right was conferred on and from the commencement of the amended Act. The status of a coparcener arises from birth. It is also made clear in clause-(a) of sub-section-1 of section-6. However in so far as right in the coparcenary property is concerned it is conferred under the Act for the first time. Under the old section-6 in coparcenary property daughter was given a limited share. By the amended section she has been given equal share as that of a son. But this equal right in coparcenary property is given under the 1956 Act. The Coparcenary rights in the property conferred on the daughters can flow only from the day the Act came into force and accordingly only daughters who are born subsequent to the Act came into force i.e., on 17-06-1956 are entitled to equal share in the coparcenary property along with the sons. Therefore it follows the daughters born prior to 17-06-1956 are not entitle to equal share in the coparcenary property.
After 1956 By legal fiction Daughters are treated as coparceners and get right by birth and within the permissible degrees; a person is to be treated as coparcener And not otherwise. Daughters will have inheritance rights equal to those of sons from the properties of fathers, grandfathers and great-grandfathers right from the codification of the law. when it came into force i.e., on 17-06-1956. Daughter born before 1956 are not treated as coparceners and do not get right by birth by legal fiction.
3) Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, When Daughters Father Die after 1956 act and before Amendment Act, 2005. Unamended section 6 of 1956 act Apply. After 1956, now by legal fiction, daughters are treated as coparceners and get right by birth as per substituted Section 6 of the Hindu Succession Act, 1956 Legal fiction Apply to Daughters from 1956 when it came into force i.e., on 17-06-1956. Daughter born before 1956 are not treated as coparceners and do not get right by birth by legal fiction.

As Per Vineeta Sharma Vs Rakesh Sharma & Ors Para 80.
A finding has been recorded in Prakash v. Phulavati that the rights under the substituted section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of "living coparcener", as laid down in Prakash v. Phulavati. In our opinion, the daughters should be living on
9.9.2005. In substituted section 6, the expression 'daughter of a living coparcener' has not been used. Right is given under section 6(1)(a) to the daughter by birth. Declaration of right based on the past event was made on 9.9.2005 and as provided in section 6(1(b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in section 6(1)(c). Any reference to the coparcener shall include a reference to the daughter of a coparcener. The provisions of section 6(1) leave no room to entertain the proposition that coparcener should be living on 9.9.2005 through whom the daughter is claiming. We are unable to be in unison with the effect of deemed partition for the reasons mentioned in the latter part.
But to claim benefit under amended provision daughter should be alive on 09/09/2005
When daughter who died before amendment 2005 act are not entitle to equal share in the coparcenary property. To claim the benefit under amended provision daughter should be alive on 09/09/2005

As per VINEETA SHARMA VS RAKESH SHARMA & ORS Page No 90 Para 139 The opinion expressed in Danamma @Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision.
As pre Danamma @Suman Surpur & Anr. v. Amar judgement is based on two points.
1) As pre Danamma @Suman Surpur & Anr. v. Amar Para 17 and 18. It is not all necessary that the father of the daughter should be living as on the date of the amendment act 2005.
2) As per Danamma @Suman Surpur & Anr. v. Amar Para 23 Daughters born prior to 17-06-1956 are also entitle to equal share in the coparcenary property

As pre Danamma @Suman Surpur & Anr. v. Amar. Para 17 and 18. And As per Vineeta Sharma Vs Rakesh Sharma & Ors. PARA 74 It is not all necessary that the father of the daughter should be living as on the date of the amendment act 2005. This part is not overruled by Vineeta Sharma Vs Rakesh Sharma & Ors.
As per Danamma @Suman Surpur & Anr. v. Amar Para 23 Daughters born prior to 17-06-1956 are also entitle to equal share in the coparcenary property
As per vineeta sharma vs rakesh sharma & ors PARA 73 and para 137.1 Daughters born after 17-06-1956 are entitle to equal share in the coparcenary property and the daughters born prior to 17-06-1956 are not entitle to equal share in the coparcenary property.
As per VINEETA SHARMA VS RAKESH SHARMA & ORS in Para 139 The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision. As per Danamma @ Suman Surpur & Anr. v. Amar Daughters born prior to 17-06-1956 are entitle to equal share in the coparcenary property is overruled by vineeta sharma vs rakesh sharma & ors.

Follow Query

Report Abuse

Quick Summary

The Hindu Succession Act 2005, as clarified by the Supreme Court in Vineeta Sharma vs Rakesh Sharma, grants daughters coparcener status with equal rights to sons in ancestral property. This status is acquired by birth, and daughters born after the Act's commencement in 1956 are entitled to equal shares. While daughters born before 1956 are not entitled to equal shares by birth, the father does not need to be alive on the amendment date for daughters to claim their rights.

kavksatyanarayana (Expert) 09 April 2023
Thank you sir.................................................................

T. Kalaiselvan, Advocate (Expert) 12 April 2023
What is your query?
We are in the knowledge of the referred judgment, if you have any queries in this regard you are welcome to revert with your queries.

P. Venu (Expert) 14 April 2023
Yes, the query suggests no legal issues.

Previous

Next

You need to be the querist or approved LAWyersclub expert to take part in this query .

Click here to login now

Similar Resolved Queries :

Ask Query
Unanswered Queries