Co-Sharer's Consent Not Mandatory To Gift Absolute Undivided Share: SC

An absolute owner of an undivided share in property needs no consent from co-sharers to execute a valid gift deed, even if the property remains unpartitioned. Clarifying the boundaries of property rights under intestate succession, the apex court affirmed that such absolute shares do not partake the character of coparcenary property.

A bench of Justice Sanjay Kumar and Justice Sanjeev Sachdeva partially allowed an appeal challenging the Madras High Court judgment, which had invalidated a gift deed executed by a co-sharer without the consent of another heir. The dispute centered around whether an individual possessing an absolute undivided share inherited via intestate succession requires the consent of other co-sharers to gift or alienate their interest.

Absolute Right Over Undivided Inheritance

Addressing the legal nature of inherited undivided property, the Court clarified that an undivided share inherited under intestate succession belongs absolutely to the heir. Consequently, the owner retains full authority to transfer or gift that share to anyone without requiring consent from co-owners.

The Court, in its reasoning, observed: "Be it noted that this undivided half share in the hands of Kuttiyappa Goundar did not partake the character of ‘coparcenary property’ and belonged to him absolutely. He, therefore, had every right in law to gift or alienate the same to anyone, including a total stranger. There was no need for him to take the consent of the co-owner, Muniammal, before parting with his undivided half share in the suit properties. The issue of such consent being obtained may have arisen had the property been coparcenary property, but not when the undivided half share was the absolute property of Kuttiyappa Goundar."

Limits of Relief Under Order VII Rule 7 CPC

While examining if the plaintiff could obtain possession or partition within the declaration suit, the Court emphasized that courts cannot grant a relief that is entirely alien to the plaintiff's original case setup, despite the flexibility allowed under Order VII Rule 7 of the Code of Civil Procedure, 1908.

The Court has the following directions:

"Such relief of partition cannot be granted at this stage as the same is entirely alien to her suit claims. We, accordingly, leave it open to the plaintiff to take recourse to such measure by way of appropriate proceedings before the competent forum in accordance with law. However, as her right to a half share in the suit properties already stands decided and only the crystallisation of that right on the ground remains to be determined by way of partition of the suit properties by metes and bounds, we would request the jurisdictional Court that entertains the plaintiff’s suit for partition to decide the same as expeditiously as possible."

Background:

The dispute originated from Original Suit No. 697 of 1996 filed by the plaintiff seeking declaration of title and recovery of possession regarding lands in Mallapalli Village. The plaintiff claimed absolute title through a registered gift settlement deed dated December 13, 1990, executed by her grandfather, Kuttiyappa Goundar. The suit was contested by Kuttiyappa's daughter, who maintained that the suit properties originally belonged to her mother and devolved upon her mother's death, leaving Kuttiyappa with no absolute right to gift the entire property.

The Trial Court decreed the suit in favor of the plaintiff. However, the First Appellate Court reversed this finding, holding that upon the mother's death, the property devolved equally upon Kuttiyappa and his daughter under the Hindu Succession Act, 1956, making Kuttiyappa's gift deed of the entire property void. The Madras High Court upheld the First Appellate Court's decision in Second Appeal No. 1393 of 2007, reasoning that Kuttiyappa could not gift even his half share without the consent of the co-sharer daughter.

The Supreme Court partially set aside the findings of the High Court and First Appellate Court, declaring the plaintiff's entitlement to an undivided half share, while liberty was granted to file a separate suit for partition.

Case Details:
Case No.: Civil Appeal No. 12190 of 2025
NeutralCitation: 2026 INSC 757
Case Title: Maragadham v. Periyaraja and others

Source: 2026 CaseBase(SC) 698