Vineetha Sharma V. Rakesh Sharma| Case Summary
The plaintiff’s father has purchased suit premises and the family stayed there for some time after construction and some part of the portion was given to tenants. The plaintiff’s father has 3 sons and one daughter. After the death of the plaintiffs father the family came for partition of the property, meanwhile one of his sons also expired. Since the plaintiff’s father and brother expired, she (plaintiff) claimed a property share of one – fourth.
She also says that some of her goods are lying there. She alleges that her share has avoided to be given by the defendants (her brothers and mother) and files a notice for her shares. In a reply to her notice, the defendants said that the property is HUF property i.e; Hindu Undivided Family and the will is in favour of them which is written by their father.
But plaintiff says that the premises were never treated as a HUF property and there is no will as such mentioned by the defendants. The defendants denied the plaintiff, as a married daughter cannot seek partition in HUF property. She has valued the premises as Rs.40 lakhs, the court fee of Rs.19.50 only was payable as a court relief.
Issues Arised :-
The following questions have been framed based on the facts of the case –
- Whether the property is a self- acquired or HUF property?
- To what parties are the shares entitled to?
- Whether the suit is maintainable under Hindu succession act?
- Is she eligible for the partition?
- For the equal partition of property, does the father need to be alive?
The property in the suit is self- acquired by their father but when it comes to the plaintiff and defendant it is HUF. As the property is declared as HUF, the succession has opened after their father’s death.
Which is prior to the amendment act, 2005. In section 6, of the Hindu Succession Act, 2005 the legislation has declared that daughters will have equal coparcenary rights to that of the male since their birth by Mitakshara law which is only applicable to Mithakshara family from the commencement.
A three-Judge Bench of Justices Arun Mishra, S Abdul Nazeer and MR Shah passed the verdict in a reference that was made in appeals raising the issue of whether the amendment to the Act granting equal rights to daughters to inherit ancestral property would have retrospective effect.
To acquire the right at the birth, it is not necessary for the father coparcener to have been alive at the time of the 2005 amendment, the Court has further clarified. The court further changes the previous two amendments in the case Prakash and others vs. Phulavati (2016), in which the court said that under section 6 of Hindu Succession Act
“The rights of coparceners under amendment act 2005 are applicable to living daughters of living coparceners as on 9/9/2005 irrespective of the birth date of daughters.”
Which means that if the father has died before the commenced date, then the daughter cannot acquire equal share of the coparcenary property. However, in Vineetha Sharma case the court held that section 6 has been amended to elevate the rights of female coparcenary by giving equal share as that of male coparcenary in the property and also declared that there is no requisite of the coparcenary being alive which is amended in 2005 amendment act.