When Hindu Governed By Mitakshara Law Died Before 1956, His Separate Property Would Completely Devolve Upon His Son: Kerala High Court

The appeal before the High Court was filed by the plaintiffs in a partition suit challenging the judgment dismissing the suit and finding that the property in question was not partible.

The Division Bench of Justice Sathish Ninan and Justice P. Krishna Kumar held, “To conclude, when a Hindu governed by Mitakshara law died before 1956, his separate property would completely devolve upon his son. A female child could claim a right in such property only in the absence of a male child. The Hindu Law of Inheritance (Amendment) Act, 1929 did not affect the son’s absolute right to inherit his father’s property. It merely enlarged the circle of heirs who could succeed in default of male issue, by introducing certain female heirs and the sister’s son.”

Advocate G.Sreekumar represented the Appellant, while Advocate K.S. Rajesh represented the Respondent.

Factual Background

An extent of 2.15 acres of land (the plaint scheduled property) in Kodungallur Village belonged to one Rama Pai, and it was his self-acquired property. Rama Pai has two kids, a boy, Hari Pai and a girl, Yasodamma. In the year 1965, the plaint scheduled property was sold to the contesting defendants, a firm and its partners, by Hari Pai together with his wife and children, through a registered sale deed. Rama Pai and his family were governed by the Mitakshara law in the matter of succession. It was the plaintiff’s case that on Ram Pai’s death the the rule of survivorship in the Mitakshara coparcenary law was not applicable for the devolution of interest, and hence the property would devolve upon Yasodamma and Hari Pai jointly. Being the legal heirs of Yasodamma, the plaintiffs and fourth defendant would get a half share over the said property, and the contesting defendants would represent the remaining half share of Hari Pai. Accordingly, the property was claimed to be partible.

The first three defendants contended that Rama Pai had died before 1956, and thus the separate property owned by him devolved solely upon his male heir Hari Pai, in accordance with the pristine Hindu law applicable under the Mitakshara law of inheritance. The sale deed executed by Hari Pai, together with his wife and children, was therefore contended to be perfectly valid. Hence, the property was stated to be not partible. Aggrieved by the Trial Court’s decision holding that the property in question was not partible, the appellants approached the High Court.

Reasoning

The Bench, at the outset, explained that before the enactment of the Act, 1956, 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 Bench referred to the judgment of the Apex Court in Arunachala Gounder (Dead) by Lrs. v. Ponnusamy and Ors. (2022) wherein the order of succession to the estate of a Hindu dying intestate and governed by Mitakshara law is set out, and a daughter is placed at serial no. 5, below a son, grandson, great-grandson, widow, and predeceased son’s widow.

Considering the fact that Rama Pai was admittedly following Mitakshara law and he died before 1956, the Bench held that on his death, his self-acquired property would devolve entirely upon Hari Pai. Hari Pai conveyed his rights over the plaint scheduled property to the contesting defendants. In such circumstances, the Bench found no reason to interfere with the impugned judgment, wherein it was held that the property was not partible. Thus, the appeal came to be dismissed.

Cause Title: Sivananda Prabhu v. S.N.Govinda Prabhu & Brothers (Neutral Citation: 2025:KER:72050)

Appearance

Appellant: Advocates G.Sreekumar. Preethy Karunakaran, K.Ravi

Respondent: Senior Advocates V.V. Asokan, K.I. Mayankutty Mather, Advocates K.S.Rajesh, K.B.Arunkumar, C.E.Manoj Nair, Rukhiyabi Mohd Kunhi, M.Shaju Purushothaman

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