The Kerala High Court has ruled that self-acquired property of a Hindu male, which passes to his son as a Class I heir after the commencement of the Hindu Succession Act, 1956, is held by the son in his individual capacity and does not constitute a coparcenary property with his own children.
Justice Easwaran S. delivered this judgment while allowing a Regular Second Appeal (RSA No. 245 of 2016) filed by the additional defendants 4 to 6 (appellants) against a preliminary decree for partition. The Court set aside the concurrent findings of the Additional Sub Court-II and the Additional District Court-III, Ernakulam, which had previously held that the property was coparcenary in nature.
Background of the Case
The dispute centered around 46 cents of land. One Venkitan Embranthiri had acquired 1.26 acres of land via a sale deed in 1925 (1101 ME). Upon his death, his children executed a partition deed on February 1, 1967, where 37 cents were allotted to one of his sons, T.V. Ramachandra Rao. Subsequently, Rao obtained another 9 cents through a release deed from his sister, bringing his total holding to 46 cents.
On April 15, 1978, Ramachandra Rao gifted the entire 46 cents to his wife. Later, his wife executed a registered Will in favor of defendants 2 to 6. The plaintiff (Rao’s son) filed a suit for partition (OS No. 585/2007), claiming a right by birth over the property. He argued that since he was in the womb at the time the Hindu Succession Act, 1956, came into force, the property in his father’s hands was coparcenary, making the gift deed to his mother void.
Arguments of the Parties
Appellants (Defendants 4-6): Senior Counsel Sri. S. Ramesh Babu argued that the property was the self-acquired property of Venkitan Embranthiri. Under Mitakshara Law, a grandson cannot claim a right by birth in the self-acquired property of the grandfather. He contended that the 46 cents in Ramachandra Rao’s hands were self-acquired and not ancestral. Furthermore, he highlighted that the plaintiff had previously persuaded his mother to mortgage the property for his own hotel business, thereby acquiescing to her title under the gift deed.
Respondent (Plaintiff): Senior Counsel Sri. S. Sreekumar contended that the property was coparcenary. He argued that as soon as the plaintiff was born, a coparcenary was formed between him and his father. He relied on the principle of “revival of coparcenary” and maintained that under Section 6 of the Hindu Succession Act, the property should devolve by survivorship, not inheritance.
Court’s Analysis and Observations
The Court identified the core issue as whether the plaintiff held any coparcenary right over his father’s property. This depended on the character of the property at the hands of the grandfather, Venkitan Embranthiri.
1. Self-Acquisition vs. Ancestral Property: The Court noted that Venkitan Embranthiri acquired the land through a sale deed in 1925. Referring to Mulla on Hindu Law, the Court observed:
“No other member of the coparcenary, not even his male issue, acquired any interest in it by birth. He may sell it, or he may make a gift of it… it passes by succession to his heirs and not by survivorship.”
2. Rights Over Gifted/Inherited Property: Citing the Supreme Court in C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar [(1953) 2 SCC 362], the Court emphasized that a Mitakshara father has absolute power over self-acquired property. The Court stated:
“It is in our opinion not possible to hold that such property bequeathed or gifted to a son must necessarily, and under all circumstances, rank as ancestral property in the hands of the donee in which his sons would acquire co-ordinate interest.”
3. Character of Property Post-1956: The Court found that since the grandfather’s acquisition was self-acquired, it did not become coparcenary property for his sons. Consequently, when Ramachandra Rao inherited/obtained the share via the 1967 partition (after the 1956 Act), it was held in his individual capacity.
4. Conduct of the Plaintiff: The Court took strong exception to the plaintiff’s conduct, noting he had used his mother’s title to the property to secure bank loans.
“This court is inclined to think that the plaintiff must be non-suited by applying the principles of acquiescence.”
The Decision
The High Court answered the substantial question of law in favor of the appellants:
“The self acquired property of a Hindu male upon his death after the commencement of the Hindu Succession Act, 1956 coming into the hands of his son as a class I heir is held by him in his individual capacity and not as a coparcenary along with his children.”
The Court concluded that the lower courts had “erred egregiously” by treating the property as joint family property. The High Court reversed the judgments of the Trial Court and the First Appellate Court, dismissing the suit for partition (OS No. 585/2007) with costs.
Case Details:
- Case Title: Santha & Ors. v. Raghavendran & Ors.
- Case Number: RSA No. 245 of 2016
- Bench: Justice Easwaran S.
- Date: February 12, 2026
