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THE RETROSPECTIVE IMPLICATIONS OF

SECTION 6
A RESEARCH PAPER
submitted in the course of study in the
6th Semester
at
Rajiv Gandhi National University of Law

Submitted By: Jotsaroop Singh

(Group No. 19- 19103)
Submitted To: Dr Kamaljit Kaur
(Associate Professor of Law)

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ACKNOWLEDGEMENT

I would like to express my special thanks to Professor (Dr) G.S. Bajpai, Vice-
Chancellor and Professor (Dr) Naresh Kumar Vats, Officiating Registrar, Rajiv
Gandhi National University of Law, for giving me the opportunity to deal with the topic
“The Retrospective Implications of Section 6” in detail and presenting in the form of
this research paper.

I would like to express my sincere gratitude and ineffable indebtedness to my Family

Law Professor Associate Professor Dr Kamaljit Kaur, who guided me throughout
the research paper. It was my privilege to work under their guidance.

At last, I would also like to thank my friends for helping me and motivating me to
complete this research paper on time.

Jotsaroop Singh
Rajiv Gandhi National University of Law Punjab
Third Year
19103

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INDEX
1. Introduction ............................................................................................................ 4

2. Background ............................................................................................................ 6

3. Analysis and Conclusion........................................................................................ 8

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1. INTRODUCTION
Unless something to the contrary is established, Hindu families live in a condition of
union. In food, worship, and estate, Hindu family members are assumed to be normally
united and undivided. As a result, understanding the concept of the combined Hindu
family and coparcenary is critical. The concept of the right to property has evolved over
time as patriarchal rule has changed. A few judgements which have been essential in
guaranteeing equal coparcenary rights in Hindu Undivided Family possessions,
regardless of whether their father was alive or not at the time the modified clause was
passed.

The traditional joint Hindu family bore the zeitgeist notions of the traditional joint
Hindu family in India, which is a conservative culture. A joint Hindu family is a group
of people who are related by blood, who live under the same roof, eat the same food,
worship the same gods, and share property ownership to ensure the family's survival
and prosperity. Coparcenary is a term used by the Mitakshara School of Hindu Law to
describe this concept. Coparcenary includes the propositus, who is descended from a
male ancestor, as well as three lineal male descendants, or four generations.
Coparcenary property refers to the properties owned by the coparcenary. Only male
lineal descendants of a united Hindu family had coparcenary interest in ancient times.
The Hindu Succession Act of 1956 mentions the concept of a united Hindu family and
coparcenary property (HSA). The HSA is concerned with succession and understands
the concept of coparcenary interest. By birth, the male lineal has ownership of the
property; if the coparcener dies, the property is inherited and divided by the remaining
coparceners by survivorship.

Thus, to resolve the underlying concerns and to bring forth progress, the Hindu
Succession (Amendment) Act of 2005 gave a coparcener's daughters the same rights as
his son in the coparcenary property. The goal of the amendment was to modify the
patriarchal mindset, abolish gender discriminating restrictions from the Hindu
Succession Act of 1956, and give equal standing to a Hindu's son and daughter in areas
of coparcenary property inheritance. While this amendment changed the way the
daughter's rights were recognized, the interpretation of the amendment had various

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flaws. Several questions have been brought before the courts in order to have a clear
interpretation of the amendment.

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2. BACKGROUND
It becomes pertinent to note the jurisprudential background of Section 6 of the HSA.
2.1 Prakash v. Phulavati and Ors
The Supreme Court ruled in Prakash v. Phulavati and Ors.1 that the Amendment Act
was prospective. As a result, as of the date of the Amendment Act's passage, daughters
will be coparceners, with an equal stake in a joint Hindu family property as males. From
this case, the following points should be noted:
• The daughter must live in 2005 in order to claim a share in the joint Hindu
family property.
• In case, if the daughter dies before the enactment of this amendment act, her
legal heir cannot claim a share in the joint Hindu family property.
• The daughter’s father should also be alive during the time of the enactment in
order to provide an equal status in the coparcenary property.
• The amendment act would not affect the alienation or disposition or transfer of
any joint family property or a registered partition before the amendment act and
it would not be affected by the daughter’s claim as a coparcener in the joint
Hindu family property after 2005 Amendment.
2.2 Lokmani v. Mahadevamma
The High Court stated in the case of Lokmani v. Mahadevamma, 2 that Section 6 of the
amended HSA is given retrospective effect as when the daughters were denied right in
the coparcenary property, and that all pending proceedings and appeals will now be
decided under the amended provisions, removing the inequality. The oral partition and
unregistered partition deeds were likewise eliminated from the meaning of "partition"
in the amended Section 6(5) of the HSA, according to the High Court.
2.3 Danamma v Amar
In Danmma v. Amar,3 even though their father died before the Amendment Act of 2005,
a two-judge bench ruled that the two daughters would obtain a share of the property.
However, there was a need to resolve the above-mentioned court rulings that were in
contradiction.

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Prakash v. Phulavati and Ors (2016) 2 SCC 36.
2
Lokmani v. Mahadevamma, [S.L.P. (C) No. 6840 of 2016].
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Danamma v. Amar, (2018) 3 SCC 343
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2.4 Vineeta Sharma v. Rakesh Sharma & Ors.

A three-judge panel was convened to resolve the conflicting rulings. The Supreme
Court stated in the case of Vineet Sharma v. Rakesh Sharma & Ors.,4 that Section 6 of
the Hindu Succession Act permits an unhindered inheritance by birth to the daughter.5
As a result, a coparcener's father does not have to be living on September 9, 2005.
"Coparcener's right is by birth," the court further stated. As a result, the presence of the
daughter's father on the date of the Amendment Act 2005 is not required, as she does
not have the rights of a coparcener due to impeded heritage." As a result, the daughter
can only assert her rights as of the date of the change, and any property transaction will
be unaffected by the new Section 6(1) of the HSA.6
The court also explained Section 6(5) of the HSA, which states that partition can only
be made by virtue of a registered partition deed or a court decree, and that the court can
only take notice of an oral partition in exceptional cases based on long-standing
evidence in the form of clear public documents. The court further ordered that cases
that have been severely delayed due to earlier contradictory decisions by the High Court
and subordinate courts be resolved within six months concerning the same subject
matter for dispute. Furthermore, this case highlights an important aspect about Section
6 of the HSA's aim, which was not to benefit female successors prospectively or
retroactively, but rather to confer benefits retrospectively. While the amending
legislation was declared retrospective, it was determined that it provides female
successors with the same benefit of succession as their male counterparts based on their
birth in a Hindu family.

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Vineeta Sharma v. Rakesh Sharma, (2019) 6 SCC 164
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Section 6, Hindu Succession Act, 1956.
6
Section 6(1), Hindu Succession Act, 1956.
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3. ANALYSIS AND CONCLUSION

The notion of statutory fiction of partition is defined in Section 6 of the HSA as a
sophisticated procedure for determining the rights of a man's remaining family
members if he dies leaving only a female relative in Class I of the Schedule, such as a
daughter, widow, mother, or other female relative. In such a circumstance, the previous
legislation specified that the property should be divided or computed as if a division
had occurred immediately before the man's death, and so, women had no portion in the
coparcenary property. In this case, the court determined that the idea of "statutory
fiction of partition" did not imply an actual partition, and that any statutory fiction of
property that occurred before to the amendment act is invalid, and that the new
provision must be applied to all existing cases or appeals. Furthermore, the court stated
that the case has already been delayed as a result of the conflicting judgements, and that
the daughter's entitlement to equal share in their ancestral property as bestowed by
Section 6 cannot be taken away. As a result, all pending cases and appeals should be
resolved over the next six months.
The recent judgement of Vineeta Sharma v. Rakesh Sharma has thus provided some
much needed clarity on the issue of Partition of Property vis a vis Section 6 of the HSA,
and ensured equitable rights for years to come.

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