ET OnlineEven if son, daughter is cut from family property via Will, if settlement deed is executed in son, daughter’s favour they can still get the property (AI generated representative image)
You earn well. Does your money?
Free Financial Freedom Workshop
On February 23, 2026, the Kerala High Court ruled that a mother is allowed to execute a settlement deed giving her daughters a share in the family property, even though a joint Will with their father, specifically left the daughters out.
Income Tax Guide
Income Tax Union Budget FY 2026-27 LiveIncome Tax Slabs FY 2025-26Income Tax Calculator 2025
In this case, both the parents during their lifetime had made a joint Will giving all the properties to their sons, and excluding the daughters. However, after the father’s death, the mother executed a settlement deed giving the daughters some share in the family assets and lands.
Even though the mother had signed the settlement deed, she cancelled it a few months later, claiming the daughters had committed fraud against her. However, the settlement deed being a separate legal document and different from a Will, it could not be cancelled unilaterally.
This led the daughters to file a court case. The sons contested the validity of the settlement deed in court, arguing that the original Will created by their parents is a mutual joint Will, not a joint Will, and and thus their mother had no legal right to create the settlement deed in the first place.
However, the sons failed to prove their argument about joint mutual Will and thus lost the case and the daughters got a share in the property by virtue of the said settlement deed executed by the mother. It may be noted that in a joint mutual Will, the terms and beneficiaries of the Will can’t be changed by the surviving spouse, whereas in joint Will, it can be changed.
Shraddha Nileshwar, Head – Will & Estate Planning at 1 Finance, said to ET Wealth Online that the Kerala High Court has expressly clarified that a joint Will does not automatically become a joint mutual Will merely because it is one common document or because it becomes operative on the death of both testators. Mutuality cannot be presumed or “read in” by the court; it must be evident on a plain reading of the will, either through an express clause or clear indication of reciprocal benefits and a binding agreement not to revoke.
According to Nileshwar, in this case, the parents had executed a joint will in 1992 dealing with their respective shares in the property. The lower courts wrongly treated it as a joint and mutual will and concluded that, after the father’s death, the mother could not execute a settlement in favour of the daughters.
The Kerala High Court re-examined the Will document and held that it is a joint Will and not joint mutual Will and further said:
- it did not confer any reciprocal benefit on the surviving spouse, and
- it did not give the surviving spouse the right to enjoy or deal with the entire property after the other’s death.
Nileshwar says: “On that reading, it was only a joint will, and no mutuality could be implied.”
What is a settlement deed?
Nileshwar says that a Settlement Deed (often used interchangeably with a gift or family settlement deed) is a registered instrument through which the owner voluntarily transfers rights in immovable property to another person, usually without monetary consideration, often as part of family arrangements or succession planning.
Nileshwar says: “Once executed and accepted, it operates as a completed transfer whereby the transferor’s rights in the property, to the extent conveyed, stands moved to the transferee, even if physical possession is not immediately delivered.”
In the Kerala case, after the father’s death, the mother executed a registered settlement deed in 1997 in favour of her daughters, including the sons, assigning her share in the property. Later, she executed a “revocation deed” cancelling this settlement and attempted to benefit her sons instead.
The Kerala High Court held that once the Settlement Deed has been executed and accepted, it cannot be unilaterally cancelled, even if possession had not formally changed hands.
Why can’t a settlement deed be unilaterally cancelled after it is executed, even if the original party wants to cancel it?
Nileshwar explains that a settlement/gift deed, once validly executed, accepted, and registered, completes the transfer; the transferor is divested of title to the extent transferred.
According to Nileshwar, any later “cancellation deed” executed only by the transferor does not have the legal effect of taking back the property. At best, it is a self-serving document and cannot override the earlier completed transfer.
Nileshwar says: “Unilateral cancellation is therefore impermissible because it would defeat the sanctity of concluded transactions and undermine certainty of titles.”
The court reiterated that the argument that “the settlement has not come into effect because possession was not delivered” is not sufficient to justify unilateral cancellation once the deed stands executed and accepted.
On what grounds can settlement deeds be cancelled?
While a valid settlement deed cannot be cancelled unilaterally merely because the transferor has changed their mind, it doesn’t mean it can’t be challenged. Nileshwar says that generally, cancellation or avoidance can arise on the following grounds, which would ordinarily need to be established in appropriate civil proceedings:
- Lack of free consent: If the deed was obtained by fraud, coercion, undue influence, misrepresentation, or mistake, a court can declare it void or voidable. (This flows from general contract law principles under the Indian Contract Act.)
- Incapacity or lack of authority: If the transferor lacked legal capacity (e.g., unsoundness of mind) or did not have title or sufficient interest in the property at the time of execution, the deed can be challenged as void.
- Non-compliance with mandatory legal requirements: For instance, absence of proper registration or execution formalities where required by law, though in practice most “settlement deeds” relevant for immovable property are registered.
- Breach of valid conditions precedent in a conditional settlement: If the deed expressly makes transfer conditional upon certain events and those events never occur, an issue may arise as to whether any interest really passed.
Nileshwar explains that the Kerala High Court emphasised that you cannot treat a perfectly valid, accepted, and registered settlement deed like a revocable nomination or a revocable Will. This is because a settlement deed operates as a completed transfer, meaning thereby that the donor’s later dissatisfaction is not a legal ground for unilateral cancellation.
If someone wants to challenge such a settlement deed, they must do so by filing a proper suit and proving the recognised vitiating factors.
aniltikotekar4sme.com 