Voluntary family settlements override customary inheritance barriers, rules Kerala High Court

The Kerala High Court recently held that a female heir, who otherwise had no inheritance rights under pre-1956 Hindu law, can still acquire a valid title to property if a share is consciously and voluntarily conferred on her through a registered partition deed executed by family members.

A single-judge bench of Justice Easwaran S was hearing second appeal concerning partition of family property in Kozhikode district which had been acquired in 1916 as self-acquired property by two male members of the family.

“Nothing prevents the parties from executing a partition deed by consciously conferring such a share on a female heir, notwithstanding the fact that the female heir had no right of inheritance prior to 1956,” said the court.

The Kerala High Court emphasised that the property was self-acquired and not ancestral, and therefore the strict rules of coparcenary and survivorship could not be mechanically applied. (Image enhanced using AI)

After several deaths in the family, a registered partition deed dated August 11, 1958, was executed among the legal heirs.

Under this deed, a daughter, Unniatha, was allotted a share in the property. Subsequently, in 1978, she assigned her share to the plaintiffs.

When the plaintiffs sought partition, the trial court decreed in their favour.

However, the first appellate court reversed the decision, holding that the female heir had no antecedent title under pre-1956 Hindu law and that her inclusion in the partition deed did not confer valid rights.

The appellants contended that the partition deed was a conscious and voluntary family arrangement, and once its execution and terms were admitted, the parties could not later deny the rights flowing from it.

They argued that the female heir’s lack of inheritance rights under old Hindu law did not invalidate a voluntary conferment of property.

The respondents argued that since succession opened prior to the Hindu Succession Act, 1956, the female heir could not inherit the property and that a partition deed could not create rights in the absence of an antecedent title, relying on Mitakshara principles.

The high court ruled that such a partition deed cannot be ignored merely because the woman lacked an antecedent right of inheritance under the Mitakshara law, particularly when the document reflects the clear intent of the family to confer rights.

Allowing the appeal, the high court set aside the appellate court’s judgment and restored the trial court’s decree granting partition.

It held that a registered partition deed voluntarily conferring rights on a female heir is legally valid, even if she lacked inheritance rights under pre-1956 Hindu law.

It emphasised that the property was self-acquired and not ancestral, and therefore the strict rules of coparcenary and survivorship could not be mechanically applied.

The bench held that a voluntary partition or family arrangement stands on a different legal footing from inheritance strictly governed by customary law.

It also noted that the execution of the 1958 partition deed was admitted by the defendants and that the concerned male heir had raised no objection during his lifetime.

This conduct, the court said, demonstrated acceptance of the allotment made under the deed.

Referring to procedural law, the court observed that admissions regarding execution and conferment of rights under the partition deed were sufficient to sustain the plaintiffs’ claim.