1. The appellants herein are the plaintiffs in O.S. No.364 of 2013, a suit for partition, filed before the Third Additional Sub Court, Kozhikode. The suit was decreed, finding that the plaint B schedule property was partible. Aggrieved, the defendants preferred A.S. No.72 of 2015, before the Additional District Court-I, Kozhikode, which was allowed by reversing the judgment and decree of the trial court.

2. The brief facts necessary for the disposal of the appeal are as follows:

The plaint B schedule property originally belonged to one Purankal Naragasseri Perachan and Purankal Naragasseri Unni (for short, ‘Unni’), having been acquired by virtue of document No.1444 of 1916. While so, Unni died, and on his death, his right over the plaint B schedule property devolved upon his children Unniatha and Cheriya Upperan. Subsequently, on the death of Cheriya Upperan, his right over the plaint B schedule property devolved upon his wife Chirutha and son Unni @ Bhaskaran. On the death of Purankal Naragasseri Perachan, his right over the plaint B schedule property devolved upon his legal heirs. On 11.8.1958, a partition deed was entered between the legal heirs of the Purankal Naragasseri Perachan and Purankal Naragasseri Unni. The ½ share of Purankal Naragasseri Perachan was taken by his daughters Unniatha and Chirutha, whereas the other ½ of the right of Purankal Naragasseri Unni was further divided equally between Chirutha and Unni @ Bhaskaran, being the wife and son of the Cheirya Upperan and Unniatha, the daughter of Purankal Naragasseri Unni. By an assignment deed dated 1.3.1978, Unniatha assigned her right in favour of the plaintiffs. Thus, it is claimed that the plaintiffs and the defendants are in joint possession of the plaint schedule property and hence the suit. The defendant No.1, defendants 2 to 10 and defendants 11 to 14 filed separate written statements. The 1st defendant admitted the plaint claim and supported the plaintiffs. Defendants 2 to 14 resisted the claim by contending that the sister of Cheriya Upperan, who is the daughter of the late Unni, had no right over the property. Since the death of Unni and Cheriya Upperan occurred prior to 1956, the female heir of Purankal Naragasseri Unni did not derive the right title and interest over the property. Incidentally, the partition deed of the year 1958 was admitted by the defendants, but then, it was contended that since Unniatha’s name was included in the partition deed only for name sake, no right title and interest vested with her, and hence the consequential assignment deed in favour of the plaintiffs has no legal effect. On behalf of the plaintiffs Exts.A1 and A2 documents were produced, and PW1 was examined. On behalf of the defendants, Exts.B1 to B37 documents were produced, and DW1 was examined. The trial court, on appreciation of the oral and documentary evidence, framed the following issues for consideration:

                  1. Whether the plaint schedule B properties are in the joint ownership and possession of the plaintiffs and defendants?

                  2.       Whether the plaint B schedule properties are partible? If so, what is the correct share of the plaintiffs?

                  3.       Whether the right, if any of the plaintiffs has been lost by adverse possession and limitation or ouster as contended by the defendants.

                  4.       Whether the court fee paid is correct.

                  5.       Reliefs and costs?

3. On an appreciation of the oral and documentary evidence, the trial court decreed the suit and passed a preliminary decree directing that the plaint B schedule property be partitioned into 20 equal shares, of which ten such shares shall be allotted jointly to the plaintiffs. Aggrieved, the defendants preferred A.S. No.72 of 2015 before the Additional District Court-I, Kozhikode. The first appellate court, on re-appreciation of the evidence, came to the conclusion that by mere inclusion of Unniatha in the partition deed, she will not get any right over the property since she does not have an antecedent title to the property, and thus the partition deed will not confer any right in her favour. Accordingly, finding that Unni @ Bhaskaran alone is entitled to inherit the property, the suit was dismissed and hence the present appeal.

4. Heard Sri. Philip Antony Chacko, the learned counsel appearing for the appellants and Sri. G. Sreekumar (Chelur), the learned counsel for the respondents.

5. On 23.9.2016, this Court framed the following substantial questions of law for consideration:

                  (i)       Whether the lower appellate court is justified in non- suiting the appellants, disregarding the manner of division of the properties as per Ext.A2?

                  (ii)      Whether the lower appellate court’s finding that the parties are governed by the principles of Hindu Mithakshara Law is revealed from the pleadings?

                  (iii)     Whether the lower appellate court failed to take note of the impact of Kerala Joint Hindu Family System (Abolition) Act, 1975 and Hindu Women’s Right to Property Act, 1937?

6. Sri. Philip Antony Chacko, the learned counsel appearing for the appellants, pointed out that the findings of the first appellate court that the predecessor of the plaintiffs, late Unniatha, had no title over the property cannot be sustained. The said finding was solely based on the decision of this Court in M. Padmavathi vs. Kolangaredath Bhuvanadasan and Others [RSA No.885 of 2005 dated 7.12.2009]. He further submitted that the decision relied on by the first appellate court has no application to the facts of the present case. He further pointed out that irrespective of the nature of the disposition made among the legal heirs of Purankal Naragasseri Perachan and Purankal Naragasseri Unni, the fact remains that the daughter of Unni was conferred with ½ share of the right devolved upon Unni. In fact, the son of Cheirya Upperan had no dispute regarding the said allotment. Pertinently, the grandson of Unni, namely Unni @ Bhaskaran, died only in the year 2010. It has come out in evidence that the property was in joint possession and was being managed by Unni @ Bhaskaran. At any rate, when the defendants themselves have admitted the execution of the partition deed of the year 1958, necessarily, the plaintiffs were entitled to a decree based on the admission. The contrary finding rendered by the first appellate court that the inclusion of the name of Unniatha in the partition deed is only for name sake, which cannot be accepted. The parties cannot resile back and contend contrary to the terms of the disposition in Ext.A2 document.

7. Per contra, Sri. G. Sreekumar (Chelur), the learned counsel appearing for the respondents, countered the submissions of the learned counsel for the appellants and contended that Cheriya Upperan died prior to 1956 and therefore, as soon as his son was born, he became a coparcener in respect of the share held by his grandfather Purankal Naragasseri Unni. That apart, it is contended that the wife of Cheirya Upperan, namely Chiruthakutty, had only a limited right in the property because of the operation of the provisions contained under the Hindu Womens’ Right to Property Act, 1937. At any rate, it is pointed out that since the property is an agricultural property, after the Hindu Womens’ Right to Property Amendment Act, 1938, the limited right on the estate in favour of the widow will not survive in case it is an agricultural land. It is further pointed out that, going by the decision of this Court in M. Padmavathi (Supra), unless the antecedent title is traced, the partition deed will not confer any right on the female heir. It is further submitted that before the coming into force of the Hindu Succession Act, 1956, a female heir had no right over the property by inheritance, and it could only be acquired by survivorship. If the principle of inheritance by survivorship, which is recognised under Section 6 of the Hindu Succession Act, 1956, is applied to the present case, necessarily, Unniatha will not get any right title and interest over the property, and therefore the legal heirs of Unni @ Bhaskaran will get absolute right over the property because the ½ share of Purankal Nagarasserry Unni will necessarily vest in Cheriya Upperan and consequently to Unni @ Bhaskaran.

8. I have considered the rival submissions raised across the Bar and have perused the judgment rendered by the courts below, and also the records of the case.

9. The basic question that falls for consideration in the present appeal is regarding the interpretation of Ext.A2 partition deed. Though the learned counsel for the respondents vehemently pointed out that merely on inclusion of the name of the Unniatha, who is the daughter of Purankal Nagarasserry Unni, in the partition deed, no right title and interest will follow to her hands, cannot be accepted by this Court for multiple reasons, which will be discussed in the following paragraphs.

10. Ext.A2 is a partition deed executed by the legal heirs of Purankal Naragasseri Perachan and Purankal Nagarasserry Unni. While the two daughters of Perachan, namely Unniatha and Chirutha took ½ share over the property, another ½ share of Unni was taken by Cheriya Upperan and Unniatha. Since Cheriya Upperan expired on 1941, his ½ share was taken by Chiruthakutty, his wife and Unni @ Bhaskaran, his son. The question that this Court need to consider is whether the decision of this Court in M. Padmavathi (Supra) will apply to the facts of this Case, and by applying the said decision, the parties to Ext.A2 should be non-suited.

11. It is difficult to envisage the situation and hold that the name of Unniatha was included in the partition deed for mere name’s sake. Though the partition deed by itself will not confer any title on the sharers, nothing prevents the parties from executing a partition deed by conferring such a share on a female heir, notwithstanding the fact that the female heir had no right of inheritance prior to 1956. In such a situation, the arrangements partake the character of a family arrangement.

12. It is beyond doubt that the Hindu Succession Act, 1956, specifies two classes of inheritance.

                  A.       The right of survivorship in respect of a coparcenary property continues notwithstanding the promulgation of the 1956 Act.

                  B.       The right of inheritance follows the method prescribed under Section 8, which is intestate succession.

                  But then, the question is whether, notwithstanding the coming into force of the 1956 Act, it was possible for the parties to have voluntarily conferred certain rights in the joint family property.

13. The facts disclosed before this Court would show that the property in question is a self-acquired property of Purankal Naragasseri Perachan and Purankal Naragasseri Unni, which was acquired by them in the year 1916. Therefore, had they been alive, they could have dealt with the property according to their wish. Further, it is to be noted that the Mitakshara Law does not prohibit a person from holding individual or self-acquired property. The concept of self-acquired property is not alien to Mitakshara Law. The individual coparcener may acquire a property out of his own funds, and such self-acquired property can be dealt with according to his own wish. That be so, it will be difficult for this Court to hold that as far as self-acquired property is concerned, as soon as Unni @ Bhaskaran was born to Cheirya Upperan, the ½ share of Purankal Naragasseri Unni in the plaint B schedule property would constitute as a joint family property in the hands of Cheriya Upperan and Unni @ Bhaskaran.

14. Coming to Ext.A2 partition deed, a cursory reading of the partition deed specifically shows that the parties voluntarily entered into an agreement for partition by consciously conferring the right over the property in favour of Unniatha. Such voluntary conferment of the right over the property is not prohibited under the customary law. It is not pointed out before this Court as to how such a disposition is void. That apart, it is to be noted that the partition deed was executed after the coming into force of the 1956 Act. Therefore, if Unni @ Bhaskaran, who is the grandson of Purankal Naragasseri Unni had any grievance regarding the allotment of the share to the sister of his father, he ought to have raised objections in appropriate time. The conscious silence on the part of Unni @ Bhaskaran, till his death, would clearly show that he has accepted the manner of allotment of the share under Ext.A2.

15. Still further, it is to be noted that the defendants 2 to 14 had clearly admitted the execution of the partition deed and conferment of right in favour of the Unniatha. That be so, going by the provisions of Order XII Rule 6 of the Code of Civil Procedure, the plaintiffs were entitled for a decree based on the admission.

16. In  Korukonda  Chalapathi  Rao  and  another  Vs. Korukonda Annapurna Sampath Kumar [(2022) 15 SCC 475], the Supreme Court considered the question of invoking the theory of antecedent tile in a case of partition. Paragraph No.39 of the decision reads as under:

                  “ 39. No doubt, when there has been a partition, then, there may be no scope for invoking the concept of antecedent right as such, which is inapposite after a disruption in the joint family status and what is more an outright partition by metes and bounds. In this regard, it is to be noticed that the appellants and the respondents, admittedly, partitioned their joint family properties. This is clear from the Khararunama, wherein it is stated that they have divided the joint family properties. The properties, which are mentioned in the Khararunama, became the separate properties of the respondent.”

17. The issue could be considered from a different perspective. Here, what is contended is that the female heir of late Unni did not have the right to inherit his property. But still, the parties consciously chose to enter into a partition conferring a share on the female heir. The execution of the partition deed is admitted. If that be so, can the partition deed be said to be bad because it offends the law of inheritance prior to 1956? It is true that a female heir is not entitled to get any share if a male heir is present under the Mitakshara law if the succession opened prior to 1956. But then, if the heirs entered into a partition deed consciously, irrespective of the customary law, it cannot be said that the said partition is void.

18. In Madalappura   Kunhikoya & Others   Vs. Kunnamangalam Beevi & Others [(2015) 15 SCC 684], a more or less similar question arose before the Supreme Court. It was held that the existence of a custom would be totally irrelevant if parties chose to execute a partition deed with regard to the properties. Paragraph No.10 of the decisions reads as under;

                  “10. The issue with regard to the existence of a custom as claimed by the plaintiffs or otherwise as pleaded by the defendants, in our considered view, would be altogether irrelevant for the purposes of adjudication of the entitlement of the parties in the present appeal. Whether a custom exists or not, the parties had agreed to exchange of Thursday and Friday properties specifically recorded in the deed of compromise at Ext.A-5 and referred to in the order of the Tahsildar (Ext. A-6). If the parties had agreed to be bound by the terms of the compromise, naturally, they would be also bound by the orders of the Tahsildar (Ext.A-6) unless, of course, it can be held that the compromise itself was vitiated by fraud, coercion or undue influence. The findings to the contrary recorded by two courts are concurrent findings of fact. That apart, we have considered the materials and evidence adduced by the parties on the above said issue and the basis of the findings recorded by the trial court and the High Court on the same. On such consideration, we unhesitatingly come up to the conclusion that the findings recorded in this regard are justified and do not disclose any basis for our interference.”

19. Therefore, this Court is inclined to conclude that applying the principles laid down by the Supreme Court in the above decisions, it cannot be said that Ext.A2 partition deed is invalid.

20. Coming to the decision cited across the Bar by the learned counsel for the respondents, which was relied on by the first appellate court, this Court finds that the decision cannot apply to the facts of the present case. The issue which fell for consideration before the Single Bench in R.S.A. No.885 of 2008 was whether the inclusion of the name of a female heir in a partition deed would confer any right on her. A cursory glance at the facts which fell for consideration before this Court in R.S.A. No.885 of 2008 would show that a family property was divided into two thavazhi, one headed by Cherutty. The ancestral property belonging to the family of Cherutty and others was partitioned in the year 1959, of which the joint family was divided into 2 thavazhi, one headed by Cherutty and the other headed by his brother. At that point of time, one of the daughters of Cherutty, namely Sathyawathy, was sent in marriage, and either because she was already sent in marriage and became a member of the family of her husband or because she was not available to join the partition deed, she was not joined. Since Cherutty, Janaki and their other children formed one Thavazhi as per the partition deed, certain properties were allotted, and the remaining other properties were allotted to the brothers of Cherutty. The appellant, daughter of Cherutty, filed the suit for partition, contending that the property is joint and hence to be partitioned. The suit was dismissed, and an appeal was preferred. In the appeal, the suit was decreed despite an objection being raised that the daughters have no right in the property and, on marriage, they became the members of the family of their respective husbands. Testing the findings of the first appellate court, this Court proceeded to hold that merely because the names of the female heirs were mentioned in the partition deed, that by itself will not confer any title in the absence of an antecedent title. The partition by itself will not confer any title to the property. Accordingly, the appeal was allowed.

21. The essential difference on facts in M. Padmavathi (Supra) and in the present case is that, unlike in that case, the property involved in this case is not ancestral in the hands of Purankal Naragasseri Perachan and Purankal Naragasseri Unni. It is their self-acquired property. Unlike the contents  of  the  partition  deed,  which  fell  for  consideration  in M. Padmavathi (Supra), in the present case, there is a conscious unison of minds among the members of the family to confer a title in favour of a female heir. Therefore, dehors the inhibition under the customary Mitakashara Law, when a right is conferred voluntarily through a registered deed, it does not qualify as a right of inheritance but a right conferred by a contract entered into between the parties. It is nobody’s case that the agreement of partition was executed with some undue influence of the parties concerned. Further, Unni @ Bhaskaran had no quarrel regarding the conferment of a share in favour of the Unniatha. That means the partition deed has come into effect and the parties were jointly holding the property in common, thereby, Unniatha was perfectly entitled to assign her right, title and interest over the property in favour of the appellants herein.

22. The oral testimony of DW1 has got some importance in the present case. Apart from admitting the execution of the 1958 document, she had specifically spoken about the conferment of the share in favour of Unniatha. Moreover, it is to be noted that Unni @ Bhaskaran expired in the year 2010, and thereafter only the suit for partition was filed. In this circumstance, the legal heirs of Unni @ Bhaskaran cannot object to the right conferred upon Unniatha, which is subsequently transferred to the appellants in the present case. Therefore, this Court is inclined to conclude that when there is a voluntary conferment of rights over the property in favour of Unniatha, it cannot be said that the partition deed did not confer any title on her, thereby precluding her from passing on the title to the appellants.

23. Viewed in the above perspective, the findings rendered by the first appellate court cannot be sustained.

24. Resultantly, the substantial questions of law are answered as follows:

                  a.       The first appellate court was not justified in non-suiting the appellants, disregarding the manner of division of property under Ext.A2.

                  b.       When there is a voluntary conferment of the share in favour of late Unniatha, the first appellate court could not have held otherwise.

                  c.       The finding of the first appellate court that the parties are governed by the principles of Hindu Mitakshara law is not revealed from the pleadings in the present case, and even if they are governed by Mitakshara law, no difference would have been made in view of the registered partition deed.

                  d.       Since the property was lying in joint possession of Chirutha, Unni @ Bhaskaran and Unniatha, and subsequently transferred to the appellants consequent to the promulgation of the Kerala Joint Hindu Family System Abolition Act, 1975, there was a statutory disruption in respect of a joint family and therefore the plaintiffs were entitled to seek partition of the property.

                  e.       In light of the findings of this Court on the question of law (a) to (d) as above, the application of Hindu Women's Rights to Property Act, 1937, does not have relevance in the present case.

                  In fine, the appeal is allowed by reversing the judgment and decree in A.S. No.72 of 2015 of the Additional District Court-I, Kozhikode and restoring the judgment and decree in O.S. No.364 of 2013 on the files of the Third Additional Sub Court, Kozhikode. Costs of the proceedings follow.