Apr 6, 2023
What Happens When Inheritance and Succession Laws Change While A Case is Pending?
Recently, while deciding on a partition and succession case, the Supreme Court of India passed a new ruling under the Hindu Succession Act. It held that if the law changes while a partition case is pending and a final decision has not been made, the parties can seek benefits of the new law. They can do this even if preliminary rulings have been made. The preliminary decree can be changed during the final decree process, to get benefit of the changed law. A decree is an official order of a court.
The Court also held that for settlement to be legal in partition suit of joint family property, it requires the written consent of all the parties. A decree which only has consent of a few parties is not valid.
Let us understand what this means for partition of property under the Hindu Succession Act.
What is a Preliminary Decree?
A preliminary decree is the decision made by a court while a civil case is going on in the court. This decision is made when the court is still unable to grant a final decree, as the case is not fully resolved and conclusive rights have not been granted to the parties. The decision given during passing a preliminary decree can be changed later by the Court. You can also appeal against a preliminary decree.
What is a Final Decree?
The final decree is the final judgment given by a court about a case pending before it. A decree is final when the court has passed a decree to conclude the case and take it off its docket, and it has not been stayed by an appellate court.
What happened in this case?
In the current case of Prasanta Kumar Sahoo & Ors. v Charulata Sahu & Ors, the law in question for the Hindu Succession ActIn 1986, the trial court passed a preliminary decree granting certain shares of the property to the deceased’s daughters, which was appealed against by the son. Since then, the law on the rights of daughters on coparcenary property (property inherited from one’s forefathers, up to four generations) has been amended.
When the appeal came before the Supreme Court, it held, in the final decree, that during the pendency of a partition suit, where no final decree has been passed, if the law gets amended, the parties can seek benefit of the amended law. The court relied on Vineeta Sharma v. Rakesh Sharma and Ors., (2020) 9 SCC 1, holding that the amended Section 6 of the Hindu Succession Act, 1956, which gave coparcenary rights to daughters w.e.f. 09.09.2005, would also be applicable to cases where the male coparcener dies prior to the Amendment in 2005. The court stated, “As the law governing the parties has been amended before the conclusion of the final decree proceedings, the party benefitted by such amendment (like the two daughters in the case on hand) can make a request to the Trial Court to take cognizance of the Amendment and give effect to the same.”
What was the change in law involved in this case?
Under Section 6 of the Hindu Succession (Amendment) Act, 2005 a daughter in a Joint Hindu family has the same right over coparcenary property as a son. The section states that 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 includes a reference to a daughter of a coparcener.
A coparcener under Hindu law means those male members of the family who have an undivided interest over the ancestral property by birth.
Related Weekly Posts
February 01 2022
Hindu Law: Daughter’s inheritance before 1956
March 11 2022
A daughter’s right to property
July 26 2022