Kerala High Court: The present appeal was filed by the appellants against the order of the Additional Subordinate Judge’s Court (‘Trial Court’), in a partition suit, by which the suit was dismissed holding that the property in question was not partible and that the son was entitled to convey the property to the defendants via a sale deed. The Division Bench of Sathish Ninan and P. Krishna Kumar*, JJ., dismissed the appeal and observed that the separate property of a Hindu who was governed by the Mitakshara law would devolve only upon his son and not his daughter or her legal heirs and agreed with the Trial Court’s view that the property was not subject to partition.
Background:
The property measuring 2.15 acres of land was the self-acquired property of the owner, who had a son and a daughter. He and his family were governed by the Mitakshara law in the matter of succession. In 1965, the property was sold to Defendants 1 to 3, a firm and its partners by the son together with his wife and children. The appellants were the plaintiffs in the partition suit which was dismissed by the Trial Court.
The plaintiffs contended that upon the owner’s death, the rule of survivorship in the Mitakshara coparcenary law was not applicable for the devolution of interest, and hence the property would devolve upon the son and the daughter jointly. Being the legal heirs of the daughter, the plaintiffs and Defendant 4 would get a half share over the said property, and Defendants 1 to 3 would get the remaining half share. Accordingly, the property was claimed to be partible. It was further contended that, since the owner died after 1956, the property had to be partitioned as per Section 6 of the Hindu Succession Act, 1956 (‘Succession Act’), as amended in 2005. However, Defendants 1 to 3 contended that since the owner died before 1956, his property would devolve solely upon his male heir according to the Mitakshara law of inheritance. Thus, the sale deed executed by the son and his family was valid and the property was not partible.
The plaintiffs’ counsel further submitted that by the Hindu Law of Inheritance (Amendment) Act, 1929 (‘Act of 1929’), the separate property of a Mitakshara follower would devolve equally upon his male and female children, and not upon the coparcenary, unless disposed of by a will. He also contended that the sapinda class included female heirs common to all schools and that they equally inherited the separate property of their father. However, the defendants’ counsel argued that the widow or a female child would succeed to the property only in the absence of a male child.
Issue:
Upon whom the separate property of a person governed by the Mitakshara law of inheritance would devolve, prior to the commencement of the Succession Act.
Analysis and Decision:
The Court noted that there was no evidence except an oral testimony wherein it was stated that the owner had died in 1950, which remained unchallenged. The Court also noted that the son had executed a mortgage deed in favour of a Bank in 1954, by which the Trial Court had concluded that the owner had died before 1956. Hence, the Court also accepted that he had died before 17-06-1956, i.e., the appointed day for the commencement of the Succession Act.
The Court clarified that the conjoint reading of Sections 1 and 2 with Section 3(b) and (c) of the Act of 1929 made it evident that the statute intended only to rank certain heirs in the order of succession immediately after the father’s father, and not to limit any superior rights of other heirs. Section 2 further presupposed an existing line of descendants and a father’s father, and a father’s brother were already ranked in that line. The Act contained nothing regarding a daughter’s rights or about conferring on her the same status as a son.
The Court relied on Arunachala Gounder v. Ponnusamy, (2022) 11 SCC 520, and observed that the purpose of the Act of 1929 was not to modify the fundamental concepts of Shastric Hindu law relating to inheritance. It only introduced the chance of inheritance of a son’s daughter, daughter’s daughter, sister, etc., which was recognised in a different capacity from that which prevailed earlier, and thus the Act of 1929 had no application in the present factual situation.
The Court explained that before the enactment of the Succession Act, succession to the property of Hindus, whether ancestral or self-acquired, was governed by the pristine principles of Hindu law as embodied in the Shastric texts and Smritis. Under the Mitakshara law, even the self-acquired property of a male devolved exclusively upon his male issue, and only in the absence of such male issue did it pass to other heirs.
The Court referred to Arunachala Gounder (supra) wherein it was held that “failing a male issue, therefore, a widow would take the self-acquired property of her husband and on failure of male issue and a widow, the daughter would take it”. The Court also referred to the Commentary on Hindu Law by S. V. Gupte, which did not specifically state that a daughter could claim her father’s property together with her brother, but rather stated that the nearer heir in each line excluded the remoter in that line.
The Court also referred to Ghurpatari v. Sampati, 1975 SCC OnLine All 367, which discussed the order of succession to the estate of a Mitakshara Hindu dying intestate as set out in Mulla’s Principles of Hindu Law, and concluded that a daughter was placed below a son, grandson, great-grandson, widow, and predeceased son’s widow.
Accordingly, the Court dismissed the appeal, observing that the son had conveyed his rights over the property to the contesting defendants. The Court also affirmed the Trial Court’s finding that the property was not subject to partition.
[Sivananda Prabhu v. S.N. Govinda Prabhu & Brothers, RFA No. 62 of 2011, decided on 29-09-2025]
*Judgment authored by: Justice P. Krishna Kumar
Advocates who appeared in this case:
For the Plaintiffs: G. Sreekumar (Chelur), Preethy Karunakaran, K.Ravi (Pariyarath), Advocates.
For the Defendants: K.S. Rajesh, V.V. Asokan (SR.), K.B. Arunkumar, K.I. Mayankutty Mather (SR.), C.E. Manoj Nair, Rukhiyabi Mohd Kunhi, M. Shaju Purushothaman, Advocates.
