The Fallout of Hasty Deletion of Pious Obligation in Vineeta Sharma v Rakesh Sharma & Ors (Part 2) – The RMLNLU Law Review Blog

By: Debarchita Pradhan

II: IMPLICATIONS OF THE RULING

[A] Right to Effect Partition before Debts were Incurred

In Pannalal and Ors v Naraini and Ors, it was reiterated by the Supreme Court that the debts contracted by the father after partition do not make the sons liable for such debts. Section 6(5) of the Act protects the partition effected before 20^th December 2004. Hence, this protects the property of the sons who demanded partition before the debts were contracted even if those debts would be covered under the proviso to Section 6(4). However, only sons who were coparceners had a right to demand partition. So, before the 2005 Amendment, daughters did not have the right to demand partition. Even if a daughter can effect a partition after the 2005 Amendment to the Act, the pre-partition debts would still be covered under the doctrine of pious obligation. If daughters are made liable to repay the debts covered under the proviso to Section 6(4), it would disproportionately affect them in comparison to sons. The 2005 Amendment to the Act was brought on the touchstone of equality. However, the daughters were not in an equal position to begin with. So, the daughters would be prejudiced further if their incapability to demand partition results in the burden of paying debts under the proviso to Section 6(4).

Moreover, the court in the Vineeta Sharma case, while relying on Section 6(2) of the Act, concluded that the daughters would hold property with all the incidents of coparcenary which would include the liability under the proviso to Section 6(4).  The incidents of coparcenary also include the right to work out one’s rights by asking for partition. However, as correctly concluded by the court, such rights would operate only prospectively. Hence, this right cannot be given retrospectively to the daughter such that she can invoke a partition before the 2005 Amendment and further, before the debt is incurred by her father. Accordingly, even if “incidents of coparcenary” include the liability to pay debts under pious obligation, such liability should not be imposed retrospectively on the daughters. The principle of fairness is the protection against retrospectivity. It would be unfair for the daughters if the liability to pay the debt covered under proviso to Section 6(4) is imposed on them retrospectively without letting them have the right to avoid such liability by effecting partition before such debts are incurred.

[B] Lesser Share after Devolution of Property under the 1956 Act

After the commencement of the Hindu Succession Act, 1956 (hereinafter referred to as the “1956 Legislation”), if the deceased left a Class I female heir, then his property would devolve by the rules of intestate succession instead of the rule of survivorship. This is given in the proviso to Section 6 of the Act which brings the concept of notional partition. According to this concept, to determine the interest of the deceased in the coparcenary property, a legal fiction is created where that property is deemed to have been divided as if the partition had already taken place just before his death. The interest of the deceased in the coparcenary property can be determined by calculating the share he would have received if a partition had taken place before his death. This share would then be divided equally between the sons and the daughters. However, before this share of the deceased is divided equally, the sons have already received some share through the notional partition. As a result, while sons get some share from both the notional partition and the succession, daughters only get the same through the latter. Hence, daughters get a lesser share than the sons.

For example, let X be the deceased father who has two sons and one daughter. Through notional partition, X and the two sons would each get 1/3. However, the daughter would not be allotted any share at this stage. Later, the 1/3^rd share of X would be divided equally between the sons and daughters. So, each of them would get 1/9^th of the share of the deceased. It is seen that the two sons get a total share of 4/9 each while the daughter gets a mere share of 1/9 in the coparcenary interest. So, in effect, the daughter gets a lesser share than the sons.

If the interpretation given by the court in Vineeta Sharma case is adopted and daughters are made liable to pay the debts under the proviso to Section 6(4), it would be unfair to them.  For instance, if X had died after the commencement of the 1956 Legislation and had incurred a debt before he died, his debt would have been covered under the proviso to Section 6(4) of the Act of 2005 and his daughters would also be liable to pay this debt. This is unfair to them as they would have to repay the debts from the lesser share that they got from the property. This would create an unequal situation between the sons and the daughters and hence, defeat the purpose of equality for which the Amendment was brought in the first place.

Later, under the 2005 Amendment to the Act, according to Section 6(3)(a) of the same, both the sons and daughters get an equal share of the property of the deceased. So, this creates an unequal situation between the daughters whose fathers died before the commencement of the 2005 Amendment Act and the daughters whose fathers died after the same. The former would get lesser property than the latter in case of a similar family structure. However, both of them would be made equally liable under the proviso to Section 6(4) of the Act.

So, the interpretation of Section 6(4) given by the Vineeta Sharma case would further inequality not only between the sons and the daughters but also between the daughters who were governed by the 1956 Legislation and those governed under the 2005 Amendment.

CONCLUSION

While the legislature lacked in providing clarity regarding the position of the daughters under the proviso to Section 6(4) of the Act, the Supreme Court in the Vineeta Sharma case further worsened the situation. The daughters governed under the state amendments (except that of Kerala) would not be much prejudiced by the 2005 Amendment Act because under these amendments, they were already supposed to fulfil the same liabilities as that of sons. However, those governed by the 1956 Legislation would have to take this additional burden created by the court under the proviso to Section 6(4) of the amendment to the Act. It is incumbent upon the legislature to clarify the position of daughters regarding pious obligations before such interpretation as given by the Vineeta Sharma case furthers the prejudice faced by the daughters.