Hindu Succession (Amendment) Act, 2005 – Kerala Joint Hindu Family System (Abolition) Act, 1975 – Right of daughters to coparcenary property – Repugnancy under Article 254 of the Constitution of India – Partition of ancestral property – Validity of Will – Application of Vineeta Sharma v. Rakesh Sharma [(2020) 9 SCC 1].
2025 KER 49346
High Court of Kerala
Hon’ble Mr. Justice Easwaran S.
RSA No. 436 of 2018; July 7, 2025
Facts:
The plaintiffs, siblings of the 3rd defendant, filed a suit (OS No. 231 of 2009) for partition of ancestral property before the Third Additional Sub Court, Kozhikode, which was dismissed by the trial court. The first appellate court granted a preliminary decree for partition, holding the Will executed by the 1st defendant (father) in favor of the 3rd defendant invalid, as the 1st defendant held only a fractional share. The appellants challenged the concurrent non-suit in this second appeal, raising substantial questions regarding the applicability of the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005) in light of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976) and the Supreme Court’s ruling in Vineeta Sharma.
Issues:
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Whether the Hindu Succession (Amendment) Act, 2005, overrides the Kerala Joint Hindu Family System (Abolition) Act, 1975, in light of the Supreme Court’s decision in Vineeta Sharma v. Rakesh Sharma [(2020) 9 SCC 1].
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Whether Act 30 of 1976 survives the rigour of Article 254(1) of the Constitution post the 2005 amendment.
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Whether the plaintiffs (daughters) are entitled to an equal share in the ancestral property under the amended Section 6 of the Hindu Succession Act, 1956.
Held:
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Repugnancy under Article 254: The court found that Sections 3 and 4 of Act 30 of 1976, which abolish rights by birth in joint family property and deem a partition to create tenancy-in-common, are repugnant to Section 6 of Act 39 of 2005, which grants daughters equal coparcenary rights by birth. The Central legislation prevails, as Act 30 of 1976 did not receive presidential assent qua Act 39 of 2005 under Article 254(2).
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Application of Vineeta Sharma: The Supreme Court’s ruling in Vineeta Sharma clarifies that daughters are coparceners by birth, with equal rights as sons, effective from September 9, 2005, irrespective of the father’s survival. The court held that this ruling supersedes earlier Kerala High Court decisions (Babu v. Ayillalath Arunapriya [2012 (4) KHC 445] and Kali Ammal v. Valliyammal [2016 (5) KHC 332]), which are no longer good law.
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Joint Family System: Act 30 of 1976 does not expressly abolish the joint family system but converts joint tenancy into tenancy-in-common. The Central Act’s recognition of only registered deeds or court decrees for partition overrides the deemed partition under Act 30 of 1976.
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Property Status: The plaint schedule property, despite being allotted to the 1st defendant via a partition deed, does not become self-acquired property. Upon the birth of a son or daughter, it regains coparcenary status, entitling the plaintiffs to a share.
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Conclusion: The court allowed the appeal, holding that daughters of a Hindu dying after December 20, 2004, are entitled to an equal share in ancestral property under Act 39 of 2005, subject to exceptions in Section 6(5). The plaintiffs and the 3rd defendant were declared entitled to equal shares in the plaint schedule property, with directions to pass a final decree and work out equities.
Order:
The appeal was allowed, and a preliminary decree for partition by metes and bounds was ordered. The plaintiffs and the 3rd defendant are entitled to equal shares in the plaint schedule properties. Parties may apply for a final decree, with equities to be addressed therein. Costs awarded to the appellants throughout the proceedings.
Key Observations:
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The court emphasized the gender-just provisions of Act 39 of 2005, aligning with the Supreme Court’s interpretation in Vineeta Sharma.
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The Kerala Act’s deemed partition is inconsistent with the Central Act’s requirement for registered or court-decreed partitions, rendering it repugnant.
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The court acknowledged the assistance of counsel and the Amicus Curiae in resolving complex constitutional issues.
Cases Referred:
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Vineeta Sharma v. Rakesh Sharma [(2020) 9 SCC 1]
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Prakash v. Phulavati [(2016) 2 SCC 36]
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Danamma v. Amar [(2018) 3 SCC 343]
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N.V. Narendranath v. Commissioner of Wealth Tax [(1969) 1 SCC 748]
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Gowli Buddanna v. Commissioner of Income-Tax [(1966) 60 ITR 293]
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Rohit Chauhan v. Surinder Singh [(2013) 9 SCC 419]
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Har Naraini Devi v. Union of India [(2022) 18 SCC 470]
Statutes Referred:
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Hindu Succession Act, 1956 (as amended by Act 39 of 2005)
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Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976)
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Constitution of India, Article 254
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Registration Act, 1908
Parties:
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Appellants/Plaintiffs: N.P. Rathibha, Sruthi K., Sreyas K., and others (legal heirs of deceased 3rd appellant impleaded as additional appellants).
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Respondents/Defendants: Radha Nambidi Parambath, N.P. Prabeesh.
Counsel:
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For Appellants: Shri Nirmal S., Smt. Veena Hari.
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For Respondents: Shri Shyam Padman (Sr.), Smt. Laya Mary Joseph, and others.
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Amicus Curiae: Shri P.B. Krishnan (Sr.).
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For State: Shri S. Renjith (Spl. Govt. Pleader), Shri K. Denny Devassy (Sr. Govt. Pleader).
