315😊When Daughters WILL not get share in Ancestral/Co-parcenary Joint Hindu Family Property? Example

#SUPREMECOURTOFINDIA CIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO. DIARY NO.32601 OF 2018 #VINEETASHARMA ... APPELLANT(S)VERSUS RAKESH SHARMA & ORS.... RESPONDENTS


129.Resultantly, we answer the reference as under:(i)The provisions contained in substituted Section 6 of the HinduSuccession Act, 1956 confer status of coparcener on the daughterborn before or after amendment in the same manner as son with samerights and liabilities.(ii)The rights can be claimed by the daughter born earlier witheffect from 9.9.2005 with savings as provided in Section 6(1) as to thedisposition or alienation, partition or testamentary disposition whichhad taken place before 20th day of December, 2004.(iii)Since the right in coparcenary is by birth, it is not necessary thatfather coparcener should be living as on 9.9.2005.(iv)The statutory fiction of partition created by proviso to Section 6of the Hindu Succession Act, 1956 as originally enacted did not bringabout the actual partition or disruption of coparcenary. The fictionwas only for the purpose of ascertaining share of deceased coparcenerwhen he was survived by a female heir, of Class­I as specified in theSchedule to the Act of 1956 or male relative of such female. Theprovisions of the substituted Section 6 are required to be given fulleffect. Notwithstanding that a preliminary decree has been passed thedaughters 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) ofthe Act of 1956, a plea of oral partition cannot be accepted as thestatutory recognised modeof partition effected by a deed of partitionduly registered under the provisions of the Registration Act, 1908 oreffected by a decree of a court. However, in exceptional cases whereplea of oral partition is supported by public documents and partitionis finally evinced in the same manner as if it had been affected by adecree of a court, it may be accepted. A plea of partition based on oralevidence alone cannot be accepted and to be rejected outrightly.

 Section 6 in The Hindu Succession Act, 1956
3 [ 6 Devolution of interest in coparcenary property. —
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub­-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) 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 and,—
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre­-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.