Kerala High Court : Daughter Of Hindu Dying After 20.12.2004 Entitled To Equal Hindu Undivided Family Share | Joint Family Abolition Act Cannot Deny Birth Right |State Law Repugnant To Hindu Succession Amendment
Isabella Mariam
The High Court of Kerala Single Bench of Justice EASWARAN S. held that the provisions of the Kerala Joint Hindu Family System (Abolition) Act, 1975, specifically Sections 3 and 4, are repugnant to Section 6 of the Hindu Succession (Amendment) Act, 2005. The Court directed that daughters of a Hindu who dies after December 20, 2004, in the State of Kerala are entitled to an equal share in ancestral property, subject to the exceptions outlined in sub-Section (5) of Section 6 and its Explanation. This judgement reverses the judgments and decrees of the III Additional Sub Court, Kozhikode, in O.S. No. 231/2009 and the IV Additional District Court, Kozhikode, in A.S. No. 194/2016. A preliminary decree was passed, ordering the partition of the plaint schedule property by metes and bounds, granting the plaintiffs and defendant No. 3 equal shares in the properties.
The matter originated from O.S. No. 231 of 2009, a suit for partition filed before the Third Additional Sub Court, Kozhikode. The plaintiffs, who are daughters, and defendant No. 3, a son, are siblings born to defendants 1 and 2. The properties at the centre of the dispute originally belonged to the Nambidi Parambath Tharawad, having been partitioned among its members via a registered deed. The first defendant, the father of the plaintiffs and defendant No. 3, was allotted the plaint schedule properties along with other items as part of his branch's share. The second defendant, being his wife, held no right over these properties, except for maintenance.
The plaintiffs contended that following the enactment of the Hindu Succession (Amendment) Act, 2005, they, as daughters of the deceased first defendant, were entitled to an equal share in the plaint schedule property. They further argued that a Will executed by the first defendant, purporting to bequeath properties to the third defendant (son), was invalid to the extent it sought to dispose of more than the first defendant's inherited share. This was because, according to the plaintiffs, the first defendant did not possess an absolute right to bequeath the entire property, as it was not solely his self-acquired property.
The defendants contested the suit. The first defendant, who was alive when the suit was filed, asserted that he was of sound mind when he executed the Will. He also contended that since the plaintiffs had been married off with his own funds, they were not entitled to a partition. The third defendant supported the first defendant's stance.
During the trial, the plaintiffs presented Exts. A1 to A3 as evidence and examined PW1. The defendants, conversely, marked Exts. B1 to B19 and examined DW1 and DW2. Based on the arguments and evidence presented, the trial court framed several issues, including whether the plaint schedule properties were co-ownership properties available for partition, whether the plaintiffs had any right over the properties, whether any such right was lost by adverse possession and ouster, whether the plaintiffs had a cause of action, and whether they were entitled to the reliefs sought. The trial court, after evaluating the oral and documentary evidence, concluded that the Will was genuine and had been duly executed by the first defendant, leading to the dismissal of the suit.
Aggrieved by this decision, the plaintiffs filed an appeal. The first appellate court, upon review, determined that the Will bequeathing the entire plaint schedule property to the third defendant was not valid. This was because the first defendant held only a fractional share in the property, given that the third defendant was born into the family prior to the promulgation of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976). Consequently, the first appellate court issued a preliminary decree for partition, dividing plaint B schedule property item Nos. 1, 3, and 4, and allotting each plaintiff a 1/12th share. Item No. 2 property was held to be not partible.
The plaintiffs then approached the High Court in a Regular Second Appeal, raising substantial questions of law. These questions primarily concerned whether female members could claim a right over the plaint schedule property as coparceners alongside male members, in light of the Hindu Succession (Amendment) Act, 2005, and the Supreme Court's decision in Vineeta Sharma v. Rakesh Sharma and Others (2020) 9 SCC 1. A further question was whether the Kerala Joint Hindu Family System (Abolition) Act, 1975, would survive the rigour of Article 254(1) of the Constitution of India after the promulgation of the Hindu Succession (Amendment) Act, 2005.
The Court observed that the Hindu Succession (Amendment) Act, 2005, “confers a right by birth on female Hindus on and from the appointed date as 20.12.2004.” It was further observed that “under sub-Section (3) of Section 6 of the Hindu Succession (Amendment) Act, 2005 recognizes the right of the female Hindus and provides that on or from the commencement of the Act 39 of 2005, the interest of a Hindu in a joint family property shall devolve by testamentary or intestate succession under this Act and not by survivorship.” The Court noted the contention that “the daughters are also allotted the same share as is allotted to a son.”
Regarding the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976), the Court observed that it “no longer survives in the light of the amendment caused by Act 39 of 2005.” It was stated that “the apparent conflict between Act 30 of 1976 and Act 39 of 2005 is so evident that, it is impossible for the court to reconcile the provisions of both the Acts.”
The Court further recorded that “Section 3 of Act 30 of 1976, the State Act, abolishes any right by birth, whereas Act 39 of 2005, the Central Act, recognizes and re-affirms the said right.” It was also pointed out that “under Section 4(1) of Act 30 of 1976, a deemed partition is stated to have taken place among the members of a joint Hindu family, and they form as tenants-in-common. However, under Act 39 of 2005, the said method of partition is not recognized.”
The Court considered the submissions of the respondents, who argued that “Act 39 of 2005 will not apply to the State of Kerala, since there is no joint family in the State consequent to the promulgation of the Act 30 of 1976.” The respondents relied on previous decisions of the Single Bench in Babu v. Ayillalath Arunapriya [2012 (4) KHC 445] and Kali Ammal & Another v. Valliyammal & Others [2016 (5) KHC 332].
It was also contended that “the Constitutional validity of the Act 30 of 1976 is upheld by the Full Bench of this Court in Chellamma Kamalamma vs Narayana Pillai J [1993 KHC 35] and therefore, the amendment brought to the Hindu Succession Act, 1956 will not affect the operation of the Act 30 of 1976.” The respondents further stated that “from 01.12.1976, which is the cut-off date mentioned in Act 30 of 1976, a deemed partition takes place on the joint family properties in the State of Kerala and the joint tenancy is replaced as tenancy-in-common with each of the sharers holding the share separately as full owners.”
The Court, however, observed that “the Act 30 of 1976 though intended to abolish joint family system in the State of Kerala did not actually do so.” It was stated that “on a reading of the provisions of Act 30 of 1976, it indicates that there exists no provision under the statue which abolishes the Joint family system in the state.” The Court further recorded that “at any rate, Sections 3 and 4, do not indicate that, the joint family system stood abolished in the State of Kerala. This aspect has not been noticed by this court in the above decisions.” The Court concluded that “the aforesaid decisions [Babu v. Ayillalath Arunapriya and Kali Ammal & Another v. Valliyammal & Others] cannot be said to lay down the correct principles of law.”
Addressing the impact of Vineeta Sharma v. Rakesh Sharma and Others [(2020) 9 SCC 1], the Court observed that the Supreme Court held that “the provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.” It was further noted that “the rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.” The Court stated that “since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.”
The Supreme Court's finding that “the statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary” was also stated. The Court further noted the Supreme Court's observation that “the provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.”
The Court also recorded the Supreme Court’s stance on oral partitions, stating that “in view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court.”
The Court observed that “however, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted.” It was stated that “a plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”
The Court concluded that “the moment the operation of Section 3 of the State Act is pitted against Section 6(1) of the Central legislation, there arises an irreconcilable conflict and that the collusion between Section 3 and Section 6 is so evident that in order to give effect to the provisions of Section 6(1) of the Central legislation, the State enactment has to give its way.” It was also observed that the Presidential assent obtained for the Act 30 of 1976 “would apply only to the unamended provisions of Section 6 of the Hindu Succession Act.”
The Court stated that “since the Act 30 of 1976 has not received the presidential assent qua the Act 39 of 2005, it is inevitable to hold that Section 3 of the Act 30 of 1976 is in collusion caused to Section 6(1) and 6(2) of the Act 39 of 2005 and Section 4 of the Act 30 of 1976 is inconsistent and repugnant to Section 6 of the Amendment Act [Act 39 of 2005].”
The Court ordered that Section 3 and Section 4 of the Kerala Joint Hindu Family System (Abolition) Act, 1975, are repugnant to Section 6 of the Hindu Succession (Amendment) Act, 2005, and consequently, these sections cannot have any effect.
The Court further ordered that the decisions rendered by the Single Bench of this Court in Babu v. Ayillalath Arunapriya [2012 (4) KHC 445] and Kali Ammal & Another v. Valliyammal & Others [2016 (5) KHC 332] are no longer considered good law, in light of the pronouncement by the Supreme Court in Vineeta Sharma v. Rakesh Sharma and Others [(2020) 9 SCC 1].
It was directed that on and from the commencement of the Hindu Succession (Amendment Act), 2005, a daughter of a Hindu who dies after December 20, 2004, in the State of Kerala, is entitled to an equal share in the ancestral property. This entitlement is subject to the specific exceptions provided under sub-Section (5) of Section 6 and the Explanation to sub-Section (5) of Section 6 of the Hindu Succession Act, 1956, as amended.
The Court stated that the substantial questions of law framed were answered in favor of the appellants. As a result, the judgment and the decree in O.S. No. 231/2009 on the files of the III Additional Sub Court, Kozhikode, and the judgment and decree of the IV Additional District Court, Kozhikode, in A.S. No. 194/2016, were reversed.
A preliminary decree was passed, ordering the partition of the plaint schedule property by metes and bounds. It was explicitly directed that the plaintiffs and defendant No. 3 would be entitled to equal shares in the plaint schedule properties.
The Court stated that parties are free to apply for the passing of a final decree. Any equities that may arise shall be worked out during the final decree proceedings.
Finally, the Court directed that the appellants/plaintiffs are entitled to costs throughout the proceedings.
Advocates Representing the Parties:
For the Appellants/Plaintiffs: Sri. Nirmal S., Smt. Veena Hari
For the Respondents/Defendants: Sri. Shyam Padman (Sr.), Sri. C.M. Andrews, Sri. P.T. Mohankumar, Smt. Boby M. Sekhar, Smt. Laya Mary Joseph, Smt. Irene Paramel, Sri. Piyo Harold Jaimon
For the State: Sri. S. Ranjith, Special Government Pleader to Advocate General, Sri. K. Denny Devassy, Senior Government Pleader Amicus Curiae: Sri. P.B. Krishnan, Senior Counsel
Case Title: N.P. Rajani and Others v. Radha Nambidi and Others
Neutral Citation: 2025: KER:49346
Case Number: RSA No. 436 of 2018
Bench: Justice EASWARAN S.
