Voluntary Partition Deed Can Confer Property Rights On Female Heir Even Prior To Hindu Succession Act, 1956: Kerala High Court
The Kerala High Court has held that a female heir, who otherwise had no inheritance rights under pre-1956 Hindu law, can acquire valid title through a voluntary partition deed executed by family members.Justice Easwaran S. held that a registered partition deed consciously conferring a share on a female heir cannot be ignored on the ground that she lacked an antecedent right of inheritance...
The Kerala High Court has held that a female heir, who otherwise had no inheritance rights under pre-1956 Hindu law, can acquire valid title through a voluntary partition deed executed by family members.
Justice Easwaran S. held that a registered partition deed consciously conferring a share on a female heir cannot be ignored on the ground that she lacked an antecedent right of inheritance under the Mitakshara law.
The Court was considering a regular second appeal against a suit of partition. The plaint schedule property which originally belonged to one Purankal Naragasseri Perachan and Purankal Naragasserri Unni was devolved upon his children. On 1958, partition deed was entered between the legal heirs of Perachan and Unni where the ½ share of Perachan was taken by his daughters whereas the other ½ of the right of Unni was divided equally between the wife and son of Cheriya Upperan and Unniatha, the daughter of Purankal Naragasseri Unni.
It was contended that since the death of Unni and Cheriya Upperan occurred prior to 1956, the female heir of Purankal Nagarasseri Unni did not derive the right title and interest over the property.
The Court examined whether the inclusion of a daughter's name in a 1958 partition deed was merely “for name sake”, as held by the first appellate court, or whether such inclusion validly conferred proprietary rights capable of being transferred.
The respondents contended that Cheriya Upperan died prior to 1956 and therefore, as soon as his son was born, he became a coparcener in respect of the share held by his grandfather Naragasseri Unni. It was also submitted that the property in question was an agricultural property, hence the limited right on the este in favour of the widow will not survive in case it is an agricultural land after the Hindu Women's Right to Property Amendment Act, 1938.
It was further submitted that before the coming into force of the Hindu Succession Act, 1956, a female heir had no right over the property by inheritance, and it could only be acquired by survivorship.
The Court examined whether the name of the female heir, Unniatha was added for name's sake and observed that even though the partition deed by itself will not confer any title on the sharers, nothing prevents the parties from executing a partition deed by conferring such share on a female heir.
The Court held that even if succession had opened prior to the Hindu Succession Act, 1956, when daughters had no coparcenary rights, the parties were not barred from voluntarily conferring a share on a female heir through a partition deed
“It is true that a female heir is not entitled to get any share if a male heir is present under the Mitakshara law if the succession opened prior to 1956. But then, if the heirs entered into a partition deed consciously, irrespective of the customary law, it cannot be said that the said partition is void.” Court noted.
The Court emphasised that the property in question was self-acquired, not ancestral, and therefore did not automatically assume the character of joint family property upon the birth of a male descendant. In such circumstances, the doctrine of survivorship and the rigid application of Mitakshara principles could not defeat an express and admitted family arrangement.
The Court rejected the first appellate court's reliance on M. Padmavathi v. Kolangaredath Bhuvanadasan and Others [RSA 885 of 2005], noting that the earlier ruling dealt with ancestral property and lacked evidence of a conscious intention to confer rights on a female heir. By contrast, the 1958 partition deed in the present case clearly reflected a voluntary and deliberate conferment of rights, which was acted upon for decades without objection.
The Court relied on Madalappura Kunhikoya & Other v Kunnamangalam Beevi & Others [ (2015) 15 SCC 684] , which observed that existence of a custom would be totally relevant if parties chose to execute a partition deed with regard to the properties.
It thus observed that the partition deed cannot be considered invalid. The Court further observed that the provisions of the Hindu Women's Property Act, 1937, des not have relevance in the present case.
It thus allowed the appeal, reversing the judgment and decree by the First Appellate Court.
Case Title: Velayudhan and Anr v Kuttooli and Ors
Case No: RSA 957/ 2016
Citation: 2026 LiveLaw (Ker) 9
Counsel for Petitioner: Philip Antony Chacko, K A Anas
Counsel for Respondent: G Sreekumar
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