The Kerala High Court on February 12, 2026 held that if a Hindu man receives property on division of ancestral land, even if it’s considered self-acquired, the moment he has a son, that property shifts from being self-acquired to co-parcenary with his son. However, the high court clarified that if the property a male Hindu originally acquired is self-acquired, then his son will not have a right to it by birth, and the father can sell or give away that property as he pleases.
In simple terms it means that a son has a birthright to a property only if it comes from his father’s ancestral lineage, not if it is entirely self-acquired from the start.
This judgement came against the background of a case filed by a son (plaintiff), who was alienated (cut off) from his father’s land by his mother. The mother had executed a Will that gave the land properties to five family members.The son felt wronged and decided to take the matter to the court.
The son lost the case as this property (46 cents) was considered self-acquired property and not ancestral joint property. Since this property was the father’s self-acquired property, the court supported his decision to gift it to his mother. As a result, the high court also upheld the mother’s Will, giving this land to other family members.
The high court said: “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.”
Background of this landMr Venkitan Embranthiri had acquired 1 Acre 26 Cents of land by a sale deed in the year 1101 ME (December 11, 1925). Venkitan Embranthiri had six sons and two daughters. One of his sons was T.V Ramachandra Rao, the father of the plaintiff, who filed this court case.
On the death of Venkitan Embranthiri, his six sons and two daughters came together to execute a partition deed on February 1, 1967, wherein 37 cents was allotted to T.V.Ramachandra Rao, father of the plaintiff and defendants 2 to 6.
Later, a daughter of Venkitan Embranthiri, namely, Radhamma (Radha) released her share over 9 cents of the land allotted to her on February 2, 1967. Thus, T.V. Ramachandra Rao came into absolute right title and interest over 46 cents of land.
On April 15, 1978, T.V. Ramachandra Rao gifted 46 cents to his wife, the mother of the plaintiff (son). However, in 1986, T.V. Ramachandra Rao died, and during the lifetime and thereafter, his wife continued to hold the property.
For his hotel business, the son (plaintiff) needed money. His mother had mortgaged the land property to get a loan in 1992. This loan was subsequently discharged.
Years after T.V. Ramachandra Rao’s death, his wife (mother of Plaintiff) executed a registered Will in favour of the defendants 2 to 6 (other family members) bequeathing the entire 46 cents of land in their favour, thereby cutting the plaintiff who is also her son, from his father’s land property.
When the case reached the trial court, the plaintiff (son) claimed right by birth. When the Hindu Succession Act, 1956 came into effect, he was in the womb of his mother and thus he claimed he was entitled by birth to the 46 cents of land that belonged to his father (Ramachandra Rao).
The mother resisted and argued that the land property belonged to her absolutely and that her son (plaintiff) had no right over it and was’t entitled to claim any right by birth, since the property is not her husband’s (T.V.Ramachandra Rao) coparcenary property in her hands.
It was held by the trial court that the family was governed by the Mitakshara Law because they are Tulu Brahmins, who migrated to Kerala, and further, the property at the hands of T.V. Ramachadra Rao and the plaintiff was a coparcenary property and therefore, the plaintiff (son) is entitled to claim right by birth.
However, the gift deed in favour of the mother by T.V. Ramachadra Rao was also upheld to the extent of transferring T.V. Ramachadra Rao’s (Plaintiff’s father) share in the said land property, and hence, the subsequent Will executed by the mother was also upheld.
This meant that the gift to the mother was valid only to the extent of the father’s share and the mother’s Will was also valid over that share.
Accordingly, the case was decreed and a preliminary decree for partition was passed. Feeling aggrieved, the defendants (other family members) filed an appeal as they were unhappy since the property was ordered to be partitioned and they did not get the whole land. The Plaintiff (son) filed a cross-objection as he wanted the entire gift and Will to be declared invalid.
Both the appeal and the cross objection were dismissed by the Additional District Court-III, Ernakulam on September 17, 2015 and hence, a second appeal was filed in the Kerala High Court.
Summary of the judgementThe central issue before the Kerala High Court was whether the plaintiff (son) had a coparcenary right by birth (birth right) over 46 cents of land that had come to his father after a family partition. The Kerala High Court examined the nature of the property and held that the original 1 acre 26 cents property’s acquisition by the grandfather was self-acquired, as it had been purchased through a sale deed. Consequently, the property’s share obtained by the father in the later partition also retained the character of self-acquired property.
The court ruled that under the Hindu Succession Act, 1956, self-acquired property inherited by a son is held in his individual capacity and does not become coparcenary property with his children. Therefore, the plaintiff could not claim any birthright in the property. It further held that the father was fully competent to gift the entire property to his wife, and the wife’s subsequent Will in favour of certain other family members was valid.
On these grounds, the Kerala High Court allowed the appeal, reversed the earlier decrees, and dismissed the case.
Why did the son lose the land case?Navod Prasannan, Partner, King Stubb & Kasiva, Advocates and Attorneys, said to ET Wealth Online: The son’s claim failed because he could not prove that the property was ancestral. The Court found that the grandfather had purchased the property, making it self-acquired. The father later received his share through a partition after 1956 and also obtained a portion through a release deed from his sister, both of which were treated as his separate property.
Since the property in the father’s hands was self-acquired, the son had no birthright in it and was not a coparcener. The father was therefore legally entitled to gift the entire property to his wife, and the subsequent Will in favour of the other heirs was valid.
Prasannan from King Stubb & Kasiva says: “The son’s earlier conduct, where he treated his mother as absolute owner for mortgage purposes, also weakened his claim and supported the Court’s finding against him.”
Kerala High Court analysis and discussionSon (Plaintiff’s) entire birthright claim on this land property depends on whether his father’s land is ancestral or self-acquiredThe Kerala High Court said that they must first see whether the plaintiff (son) has any coparcenary (birth right) over the property of his father.
This assumes significance since the plaintiff’s father obtained 37 cents by inheritance through partition and 9 cents by release deed in his favour by one of his sisters.
The Kerala High Court said: “The plaintiff has claimed right by birth over the above two extents which is quite surprising.”
The high court said that this case has come up solely because of the inability of the parties to clearly prove the date of death of Venkitan Embranthiri. If Venkitan Embranthiri had died after 1956, probably this issue would not have arisen at all for consideration.
The entitlement of the plaintiff (son) to claim property by right by birth along with his father, T.V.Ramachandra Rao (father), will largely depend upon the character of property at the hands of Venkitan Embranthiri (grandfather).
It is indisputable that Venkitan Embranthiri had derived right title and interest over an extent of 126 cents of land through a registered sale deed No.525/1101 ME. The sale deed was executed on 26.04.1101 ME (December 12, 1925).
The plaintiff was born on October 10, 195610.10.1956, whereas the Hindu Succession Act came into force on June 17, 1956 and thus at that time the plaintiff (son) was in the womb of his mother. Following the principles of law, there cannot be any dispute that a child in the womb is also entitled to claim right by birth over the ancestral property. Therefore, no further deliberation is required on that question.
Kerala HC answers whether a Hindu male under Mitakshara Law can hold a self-acquired property while he was in a joint familyThe question before Kerala High Court is whether a male Hindu governed by the Mitakshara Law is entitled to hold a self acquired property while he was in a joint family with his sons and daughters.
The Kerala High Court said: “The rule of survivorship as embodied under the ancient text of Mitakshara Law continued to hold good, even after the promulgation of the Hindu Succession Act, 1956 because of the operation of Section 6.”
Therefore, to claim the benefit of Section 6, the plaintiff (son) must demonstrate that the property of Venkitan Embranthiri (grandfather) constituted a coparcenary property in his hands along with his six sons.
Chapter-I of Section-5 of Placitum-9 of the Mitakshara Law reads “The grandson has a right of prohibition if his unseparated father is making a donation or sale of effects inherited from the grandfather : but he has no right of interference if the effects were acquired by the father. On the contrary, he must acquiesce, because he is dependent.”
The distinction is explained by the Author in the text that follows “Consequently the difference is this : although he has a right by birth in his father’s and in his grandfather’s property; still since he is dependent on his father in regard to the paternal estate and since the father has a predominant interest as it was acquired by himself, the son must acquiesce in the father’s disposal of his own acquired property.”
Mulla on Hindu law 22nd Edition Para-220 page 326 opines as follows:Incidents of separate or self acquired property- A Hindu, even if be joint, may possess separate property. Such property belongs exclusively to him. 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 , or bequeath it by will, to any person he likes. It is not liable for partition and on his death intestate, it passes by succession to his heirs and not by survivorship to the surviving coparcener.In the case of C.N.Arunachala Mudaliar v. C.A.Muruganatha Mudaliar and Another [(1953) 2 SCC 362], a three Judges Bench of the Supreme Court was called upon to reconcile the conflicting views of the various High Courts on the question as to whether a male Hindu governed by the Mitakshara Law would be considered a coparcener along with his son in respect of his self-acquired property.
Quoting extensively from the well-known text of Yagnavalkya, which says, “The ownership of father and son is co-equal in the acquisitions of the grandfather, whether land, corody or chattel”, and relying on Chapter-I, Section-1, Placitum 19 of the Mitakshara, which says, “Excepting what is gained by valour, the wealth of a wife and what is acquired by science which are three sorts of property exempt from partition; and any favour conferred by a father”, the Supreme Court concluded that whatever is acquired by the coparcener himself without detriment to the father’s estate as present from a friend or a gift at nuptials, does not appertain to the co-heirs.
Property coming from ancestral sources may become separate after partition, but once a son is born, it again becomes coparcenary property between father and sonThe Kerala High Court answered whether the property acquired by the father of the plaintiff would remain joint at his hands as well as his sons’ hands.
In the case of Angadi Chandranna v. Shankar and Others [2025 SCC OnLine SC 877, 2025 INSC 532], the Supreme Court held that after the joint family property has been distributed in accordance with law, it ceases to be the joint family property and hence, the shares of respective parties become their self-acquired property.
The Kerala High Court said that this decision probably gives an indication as regards the right of the sharers on execution of a partition deed in respect of an ancestral property. Even, in a case of an ancestral property, on partition, it is held to be self-acquired.
The Kerala High Court said: “But the moment a son is born to the sharer, a coparcener is formed along with the father and son and the property acquired by the father becomes joint with his son.”
In order to succeed the plaintiff (son) must prove the nature of acquisition at the hands of his father. Irrespective of the nature of acquisition, if the plaintiff (son) fails to prove that the property at the hands of his grandfather is not an ancestral property, then the edifice of the suit collapses.
Plaintiff (son) could not give any evidence that his grandfather’s land property was ancestral and not self-acquiredWith the above principle in mind, the Kerala High Court proceeded to consider the nature of the acquisition of property by the late Venkitan Embranthiri.
The only evidence adduced by the plaintiff is the partition deed and his oral testimony. On the contrary, the defendants 2 to 6 have produced the sale deed by which Venkitan Embranthiri purchased the property.
The Kerala High Court could not find any indication from the evidence adduced by the plaintiff (son) that the property held by Venkitan Embranthiri is an ancestral property.
However, Sri S Sreekumar, Senior Counsel appearing for the plaintiff (son) contended that irrespective of the nature of acquisition of the property, there is a presumption that he along with his father T.V. Ramachandra Rao constituted a joint family and hence the plaintiff has a right of birth over the share of the property.
The Kerala High Court said that they can’t accept the above proposition.
The plaintiff can claim right by birth over the property at the hands of his father, only if it is shown that the property in hands of his father is an ancestral property.
The Kerala High Court said: “The fact that Venkitan Embranthiri and six sons continued as joint family, is no ground to presume that the property in question is an ancestral property, because under law, no presumption is available as regards the jointness of the property though the presumption may be drawn as regards the jointness of the family as such”
The high court said that it was obligatory on the part of the plaintiff to have adduced evidence to prove that the property at the hands of his father was an ancestral property.
The evidence is completely lacking on these aspects, which can persuade the Court to conclude that the framework of the suit itself was thoroughly misconceived.
In the present case, Venkitan Embranthiri had admittedly acquired the property by a sale deed. Going by the decision of the Supreme Court in C.N.Arunachala Mudaliar, the property did not constitute a coparcenary property with Venkitan Embranthiri as well as his six sons.Therefore, the question decided by the Supreme Court in Arshnoor Singh case will not apply to the present case.
When a Hindu man receives a share from ancestral property in a partition, it is treated as his separate property, but on the birth of his son, it becomes coparcenary property between them
In the Sheela Devi and Others v. Lal Chand and Another [(2006) 8 SCC 581] case, it was held by the Supreme Court that as soon as a son was born to a male Hindu, the concept of property being a coparcenary property in terms of the Mitakshara School of Hindu Law gets revived.
Though the question as regards the applicability of the Hindu Succession (Amendment) Act, 2005 was also dealt with by the Supreme Court, in the light of another decision of the Supreme Court in Vineeta Sharma v. Rakesh Sharma [2020 (4) KLT OnLine 1009 (SC)], the said proposition is no longer res integra.
However, as regards the concept of reviving a coparcenary under the Mitakshara Law as soon as a son is born, one must remember that, in order to apply the concept of revival of coparcenary, the nature of acquisition at the hands of a male Hindu must be established beyond doubt.
The Kerala High Court said that if a male Hindu gets a property on partition of an ancestral property, though it may be considered as a self-acquired property, as soon as a son is born to him, it changes the character of a self-acquired property, and then becomes a co-parcenary property with his son.
The Kerala High Court said: “But, when the original acquisition by a male Hindu itself is a self-acquired property, then, even the son will not get a right by birth and the father is not prevented from disposing of the self-acquired property at his wish.”
Mitakshara Law did not prohibit a male Hindu from holding self-acquired property according to his wishThe Kerala High Court said that if they accept the proposition of the Senior Counsel appearing for the plaintiff (son) would necessarily lead to a situation where, the concept of revival of a coparcenary property would still hold to continue in respect of a self-acquired property of a male Hindu.
Kerala High Court said: “This is not permitted under the Mitakshara Law, because despite the Rule of Survivorship, the Mitakshara Law did not prohibit a male Hindu from holding self-acquired property according to his wish.”
Plaintiff (son) never had a case about co-ownership of this land when the land was mortgaged for his hotel businessThe Kerala High Court said that it has come out in evidence that on April 15, 1978 late T.V.Ramachandra Rao transferred the entire 46 cents in his wife’s favour by executing a gift deed. The plaintiff availed a credit facility for the expansion of his hotel business by persuading his mother to mortgage the entire 46 cents of land.
At that point of time, the plaintiff never had a case that he was also a co-owner of the property. If he had a case, necessarily, he would not have required his mother to execute the entire security documents, including the letter of confirmation of the mortgage with the Cooperative Bank, from where he got the credit facility.
The Kerala High Court said that when this was pointed out to the Senior Counsel for the plaintiff, no plausible explanation was forthcoming on the peculiar conduct of the plaintiff.
Therefore, the high court was inclined to think that the plaintiff must be non suited by applying the principles of acquiescence.
Out of 46 cents, the father of the plaintiff got the title over 9 cents by virtue of the release deed by his sister. If the six sons of Venkitan Embranthiri decided to confer right in favour of their sisters, Kerala High Court said that they fail to understand why the plaintiff must be aggrieved by the said act.
The Kerala High Court said: “At any rate, once it is held that plaintiff cannot become a coparcener qua his grandfather, no further deliberation is required. But then, the plaintiff claims right by birth in respect of 9 cents which was released by the sister of Ramachandra Rao.”
Plaintiff (son) had claimed right over land which his father himself did not have right toThe Kerala High Court said that the most intriguing factor which the courts below failed to note is that as on date of birth of the plaintiff (son), there was no crystallization of rights in favour of T.V.Ramachandra Rao nor he had any right by birth over 126 cents held by his father.
Therefore, it passes one’s comprehension as to how the plaintiff can claim right over the property of his father when his father himself had no right. Still further, when the plaintiff’s father derived a right under a partition deed executed after the commencement of the Hindu Succession Act 1956, it is deemed to be his self-acquisition and thus the plaintiff had no right over the same.
The high court said that it is beyond cavil that plaintiff has no semblance of right over 9 cents, which T.V.Ramachandra Rao obtained from his sister through release deed.
Kerala High Court judgementThus, applying the principles laid down by the Supreme Court in C.N. Arunachala Mudaliar and Angadi Chandranna the Kerala High Court held that the property was in the hands of late T.V. Ramachandra Rao is not an ancestral property but it assumes all the character of a self acquired property over which he retained all rights of disposition.
Resultantly, Kerala High Court answered the first substantial question of law in favour of the appellants, as follows:
A) 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.
In the light of the above, the rest of the substantial questions of law do not arise for consideration since it has come out that T V Ramachandra Rao had executed a gift deed in favour of his wife by which the entire 46 cents was bequeathed. Consequently, the Will deed executed by his wife in favour of the appellants must hold good. If that be so, the suit for partition is liable to be dismissed with costs.The Kerala High Court also said that consequently, the impact of the Hindu Succession (Amendment) Act, 2005 on the facts of the case does not arise for consideration. Thus, the courts below did not advert to the questions of law presented before it properly and they went on a wrong tangent altogether and erred egregiously in holding that the plaint schedule property is a joint family property with the plaintiff and T.V.Ramachandra Rao.
In fine, the Kerala High Court concluded that the judgments and the decrees of the courts below are unsustainable and accordingly this appeal is allowed by reversing the judgment and decree dated 3.7.2010 in OS No.585/2007 of the II Additional Sub Court, Ernakulam as affirmed in AS No.259/2010 by the III Additional District Court, Ernakulam by judgment dated 17.9.2015. Resultantly, OS No.585/2007 stands dismissed with costs.