The Kerala High Court has ruled that even before the Hindu Succession Act, 1956, a daughter could legally get property rights if family members voluntarily gave her a share through a registered partition deed. The Court held that such a conscious family arrangement cannot be ignored merely because old Hindu law did not recognise inheritance rights of women.
KOCHI: The Kerala High Court has held that a voluntary partition deed can validly confer property rights on a female heir even if the succession opened before the Hindu Succession Act, 1956.
Justice Easwaran S. clarified that under pre-1956 Mitakshara law, although daughters did not have an automatic right of inheritance where a male heir existed, nothing prevented family members from consciously and voluntarily giving a share to a female heir through a partition deed.
The Court was dealing with a regular second appeal arising from a partition suit. The property originally belonged to Purankal Naragasseri Perachan and Purankal Naragasseri Unni, acquired in 1916. After their deaths, a registered partition deed was executed on 11 August 1958 between their legal heirs. Under this deed, half of the property was taken by Perachan’s daughters, while the remaining half was divided among the heirs of Unni, including his daughter Unniatha.
The dispute arose when some heirs argued that since Unni and Cheriya Upperan had died before 1956, Unniatha, being a female heir, had no right, title or interest in the property. It was claimed that her name was included in the 1958 partition deed only “for name sake” and therefore she could not legally transfer her share later.
The High Court rejected this argument and closely examined whether the inclusion of Unniatha in the partition deed was symbolic or whether it created real proprietary rights. The Court observed that even if succession had opened before 1956, family members were free to enter into a voluntary arrangement and confer property rights on a female heir through a registered partition deed.
The Court clearly stated that the property in question was self-acquired and not ancestral. Therefore, it did not automatically become joint family property upon the birth of a male descendant. In such cases, strict application of survivorship rules under Mitakshara law cannot override an express and accepted family arrangement.
While addressing the core issue, the Court made the following crucial observation:
“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.”
The High Court also relied on Supreme Court precedents to reinforce that once parties voluntarily agree to a partition or family arrangement, questions of custom or antecedent title lose relevance unless fraud, coercion or undue influence is proved. The Court noted that the 1958 partition deed had been acted upon for decades without any objection, which clearly showed acceptance by all concerned heirs.
The Court rejected the reliance placed by the first appellate court on M. Padmavathi v. Kolangaredath Bhuvanadasan, explaining that the earlier case dealt with ancestral property and lacked proof of a conscious intention to grant rights to a female heir. In contrast, the present case involved self-acquired property and a deliberate conferment of rights.
The Court further relied on the Supreme Court decision in Madalappura Kunhikoya & Others v. Kunnamangalam Beevi & Others, which held:
“10. The issue with regard to the existence of a custom as claimed by the plaintiffs or otherwise as pleaded by the defendants, in our considered view, would be altogether irrelevant for the purposes of adjudication of the entitlement of the parties in the present appeal.
Whether a custom exists or not, the parties had agreed to exchange of Thursday and Friday properties specifically recorded in the deed of compromise at Ext.A-5 and referred to in the order of the Tahsildar (Ext. A-6).
If the parties had agreed to be bound by the terms of the compromise, naturally, they would be also bound by the orders of the Tahsildar (Ext.A-6) unless, of course, it can be held that the compromise itself was vitiated by fraud, coercion or undue influence.The findings to the contrary recorded by two courts are concurrent findings of fact.
That apart, we have considered the materials and evidence adduced by the parties on the above said issue and the basis of the findings recorded by the trial court and the High Court on the same.On such consideration, we unhesitatingly come up to the conclusion that the findings recorded in this regard are justified and do not disclose any basis for our interference.”
Applying these principles, the Kerala High Court concluded that the 1958 partition deed was valid, the share granted to the female heir was legally enforceable, and she was competent to transfer her rights. The Court held that the provisions of the Hindu Women’s Rights to Property Act, 1937, had no relevance in the facts of the case.
Accordingly, the High Court allowed the appeal, set aside the judgment of the first appellate court, and restored the decree passed by the trial court, affirming the validity of the voluntary partition and the rights of the female heir.
Explanatory Table — Laws & Sections Referred In The Case
| Law / Provision | Section / Rule | Purpose | How the Court Applied It |
| Hindu Succession Act, 1956 | Section 6 | Governs survivorship in coparcenary property | Court held survivorship rules cannot override a voluntary partition of self-acquired property |
| Hindu Succession Act, 1956 | Section 8 | Rules of intestate succession | Not decisive because rights flowed from a voluntary partition deed, not inheritance |
| Hindu Women’s Rights to Property Act, 1937 | — | Gave limited estate to widows | Held irrelevant to facts of the case |
| Hindu Women’s Rights to Property (Amendment) Act, 1938 | — | Limited estate and agricultural land | Court said it had no relevance in this dispute |
| Mitakshara Hindu Law | Customary law | Governs inheritance before 1956 | Court ruled customary law cannot nullify a conscious family arrangement |
| Code of Civil Procedure, 1908 | Order XII Rule 6 | Judgment on admissions | Since execution of partition deed was admitted, plaintiffs were entitled to relief |
| Kerala Joint Hindu Family System (Abolition) Act, 1975 | — | Abolishes joint family system | Statutory disruption supported the plaintiffs’ right to seek partition |
Case Details
- Case Title: Velayudhan & Anr. v. Kuttooli & Ors.
- Court: Kerala High Court
- Bench: Justice Easwaran S.
- Neutral Citation: 2025:KER:97624
- Case Number: R.S.A. No. 957 of 2016
- Date of Judgment: 19 December 2025
Counsels
- For the Appellants (Plaintiffs)
- Sri. Philip Antony Chacko
- Sri. K.A. Anas
- For the Respondents (Defendants): Sri. G. Sreekumar (Chelur)
Key Takeaways
- Law respects voluntary family decisions more than rigid gender formulas.
- A registered partition deed can override old inheritance customs.
- Self-acquired property is not automatically governed by survivorship myths.
- Courts will not undo settlements accepted silently for decades.
- Rights flow from conscious consent, not emotional or selective legal interpretations.
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