http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

CASE NO.: Appeal (civil)  8292-8293 of 2003

PETITIONER: C.T. RADHAKRISHNAN                               

RESPONDENT: C.T. VISWANATHAN NAIR AND ANR.   

DATE OF JUDGMENT: 16/01/2006

BENCH: B.P. SINGH & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  

P.K. BALASUBRAMANYAN, J.

1.              The parties to these appeals belong to Chokkura  Thaliyadath tarwad, a hindu family governed by  Marumakkathayam system of law as modified by the  Madras Marumakkathayam Act, 1932.  They belong to the  thavazhi of Cheriyammu Amma.  Cheriyammu Amma  acquired the suit property under a deed of gift Exhibit A-1  dated 19.6.1905.  On the death of Cheriyammu Amma, the  property devolved on her thavazhi, consisting of her two  daughters, Ammini Amma and Kunhimalu Amma and two  sons Appu Nair and Gopalan Nair.  Appu Nair and Gopalan  Nair having died, the property devolved on the thavazhi  consisting of Ammini Amma and her son and Kunhimalu  Amma and her children, of whom four survived.  Ammini  Amma died in the year 1944.  On 19.9.1954, under  Exhibit-B-9, Kunhimalu Amma acting for self and as  guardian of her two minor sons, Narayanan Kutty and  Radhakrishnan and her two major sons, Balagopalan Nair  and Somasundaran Nair, surrendered, released or sold  (this is one of the disputes in the litigation) the property to  Viswanathan Nair, the son of Ammini Amma.  Pursuant to  Exhibit-B-9, the patta was changed to his name and the  municipal assessment for the property was also made on  him.   Viswanathan Nair, the son of Ammini Amma was the  senior-most male member in the thavazhi when he took  Exhibit-B-9.  He was in government service in the then  State of Madras and was living in Madras.  Kunhimalu  Amma and her children continued to reside in the property  which was a residential house in the town of Calicut in the  district of Malabar in the State of the then Madras, until,  the said district was added to the State of Travancore- Cochin to form the State of Kerala with effect from  1.11.1956.  Kunhimalu Amma died in the year 1963.   Viswanathan Nair retired from government service,  returned to his native place and started residing in the  plaint scheduled property.  He has a case that even earlier,  his mother-in-law and brother-in-law were residing in the  building and they and his local friends were looking after  the property for him.  Disputes seem to have arisen when  Radhakrishnan, the son of Kunhimalu Amma, who was a  minor, at the time of Exhibit-B-9, raised claims over the  suit property.  Viswanathan Nair then filed O.S. No. 327 of  1984 on the file of the Munsiff’s Court of Kozhikode,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

originally for a permanent injunction restraining the  defendants, three of the surviving sons of Kunhimalu  Amma, from interfering with his exclusive possession of the  suit property.  Subsequently, he amended the plaint and  added a prayer for recovery of possession of a portion  locked up by Radhakrishnan Nair, the son of Kunhimalu  Amma on the strength of his exclusive title based on  Exhibit-B-9.  The two sons of Kunhimalu Amma who were  minors at the time of Exhibit-B-9 and on whose behalf the  document Exhibit-B-9 had been executed by Kunhimalu  Amma, their mother, resisted the suit essentially  contending that the transaction Exhibit-B-9 entered into by  their mother and brothers, was void in law, in view of the  fact that the same was an assignment of undivided shares  by the members of an undivided marumakkathayam  tarwad or thavazhi and they had no right to convey such  undivided shares.  It may be noted that the transaction  Exhibit-B-9 was dated 19.9.1954 and both the quondam  minors had attained majority more than three years prior  to the suit and consequently had lost their right to  challenge the transaction Exhibit-B-9  as voidable as  opposed to an available plea that it is void in law.   Radhakrishnan, who was defendant No.1 in the above suit,  in his turn filed O.S. no. 45 of 1985 for partition of the  plaint scheduled property and delivery to him of his share  therein on the plea that Exhibit-B-9 deed executed by his  mother for herself and as guardian of himself and his  brother Narayanan Kutty, and by her two major sons,  Balagopalan Nair and Somasundaran Nair, was void in law.   Viswanathan Nair resisted this suit by pleading that  Exhibit-B-9 was a valid transaction being the surrender of  rights by all the other members of the thavazhi in favour of  himself, the only other member of the thavazhi and no  infirmity was attached to such a transaction.  Thus, in both  the suits, the essential question that fell for decision,  especially in the context of the only contention raised  before us by learned Senior Counsel Mr. A.S. Nambiar,  appearing on behalf of the appellant, was whether the  transaction Exhibit-B-9 could be ignored by the sons of  Kunhimalu Amma as a void transaction.   

2.              The trial court tried the suits jointly.  It held that  the transaction Exhibit-B-9  was valid since it was not an  assignment of undivided shares by the members of an  undivided marumakkathayam thavazhi, who as per the  decisions of the Kerala High Court binding on it, had no  alienable right in the undivided thavazhi property and that  the transaction was really a surrender of rights by all the  other members of the thavazhi in favour of the only other  member and such a transaction was valid in law.  The trial  court, therefore, upheld the exclusive title of Viswanathan  Nair based on Exhibit-B-9 and decreed his suit granting  the injunction and recovery of possession prayed for by him  therein.  It dismissed the suit for partition on the ground  that the plaintiff therein, Radhakrishnan Nair and his  brothers defendants 2 and 3 in that suit, had no subsisting  right over the suit property as on the date of that suit.   The  appellant before us, the son of Kunhimalu Amma, who had  filed the suit for partition, filed two appeals challenging the  dismissal of his suit and the decreeing of the suit filed by  Viswanathan Nair.  The subordinate Judge, Kozhikode who  heard the appeals jointly, agreed with the trial court that  the transaction Exhibit-B-9 was valid in law and  consequently, Viswanathan Nair had acquired exclusive  title over the property and was entitled to the relief granted

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

to him in his suit and that the suit for partition filed by the  son of Kunhimalu Amma was rightly dismissed by the trial  court.  Thus, both the appeals were dismissed.   

3.              Radhakrishnan Nair, the appellant before us,  filed two second appeals before the High Court of Kerala  challenging the decrees of the courts below.  As is the  practice in that High Court, the second appeals were  admitted on the substantial questions of law formulated in  the memorandum of second appeal of which the  respondent in the second appeal had notice and disposed  of on the basis of those substantial questions of law by  answering them against the appellant in the second  appeals and in favour of Viswanathan Nair.  The High  Court held that the transaction Exhibit-B-9 was valid in  law since it could be treated as a partition among the  members of the thavazhi to enter into which they had a  right under the Madras Marumakkathayam  Act, 1932,  especially when all the members of the family acted  together and that in a partition, it is not obligatory that  property in specie should be allotted to all the sharers and  it is quite possible for the sharers to take their shares in  terms of money and that was exactly what was done by  Viswanathan Nair,  Kunhimalu Amma and her children,  when they entered into Exhibit-B-9 transaction.  Thus,  upholding the finding of the trial court and that of the  lower appellate court, that the transaction Exhibit-B-9 was  not void in law, the High Court dismissed the second  appeals.  The decision in the second appeals is in challenge  before us in these appeals by special leave.   

4.              Mr. A.S. Nambiar, learned Senior Counsel  argued that Exhibit-B-9 was in fact an assignment of  undivided shares by the members of a marumakkathayam   thavazhi and such an assignment was clearly invalid in law  in the light of the decision of the Full Bench of the Kerala  High Court in Ammalu Amma & Others vs. Lakshmy  Amma & Others [1966 K.L.T. 32].  He submitted, that a  transaction of sale of undivided shares was not merely  voidable but was void in law as held in Mathew vs.  Ayyappankutty [1962 K.L.T. 61] and in the situation  obtaining, the High Court ought to have held that  notwithstanding the transaction Exhibit-B-9, the sons of  Cheriyammu Amma were entitled to shares in the property.   He also relied on the decision in Achutha Menon vs.  Jaganatha Menon & Others [1983 K.L.T. 939].  He further  submitted that it could not be forgotten that Viswanathan  Nair was the eldest male member of the thavazhi and hence  the Karanavan of the thavazhi and in the context of the  conflict between right and duty, as emphasized in  Achuthan Nair vs. Chinnammu Amma & Others [AIR  1966 SC 411], the exclusive title claimed by Viswanathan  Nair based on Exhibit-B-9, could not be upheld.  Learned  counsel submitted that on the terms of Exhibit-B-9, the  transaction was clearly a sale of their undivided shares by  Cheriyammu Amma and her sons.  Mr. T.L.Viswanatha  Iyer, learned Senior Counsel appearing on behalf of the  respondent, Viswanathan Nair, submitted that Exhibit-B-9  was only a release of their rights by all the other members  of the thavazhi in favour of Viswanathan Nair, the only  other member of the thavazhi and such a transaction was  valid in law.  He further submitted that the High Court was  justified in holding that the transaction Exhibit-B-9 could  be treated as a partition which again was valid since all the  members of a thavazhi could always come together and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

effect a partition even under the pristine  Marumakkathayam  Law and certainly after the coming  into force of the Madras Marumakkathayam  Act, 1932,  which gave an individual member, the right to seek a  partition.  Learned counsel further submitted that the  decision in Ammalu Amma & Others vs. Lakshmy Amma  & Others (supra) did not lay down the correct law and this  Court would be justified in overruling that decision  especially in the context of Section 38 of the Madras  Marumakkathayam  Act, 1932 and the right to partition  conferred on the members of an undivided  Marumakkathayam tarwad or thavazhi.  Learned counsel  submitted that even in the decision in Achutha Menon vs.  Jaganatha Menon & Others (supra) the Court has  proceeded on the basis that a release by one of the  members of the thavazhi in favour of the thavazhi was valid  in law and the situation obtaining here was one where all  the members of the thavazhi had released their rights in  favour of the only other member of the thavazhi and such a  transaction, even going by the customary  Marumakkathayam Law, was valid.  He submitted that  there was no question of the theory of conflict between  right and duty arising in this case as the circumstances  show that Cheriyammu Amma and her sub-thavazhi was in  need of funds at the relevant time and they had released  their rights in the suit property in favour of the contesting  respondent, for valuable consideration and the  consideration that was paid was a substantial amount in  the year 1954.  He submitted that the transaction Exhibit- B-9 could not be held to be a void transaction and even if it  was voidable, the children of Cheriyammu Amma had  clearly lost their right to attack the transaction on the basis  that it was a voidable document, they not having filed the  suit within the time permitted by law in that behalf.  He,  thus, submitted that there was no reason to interfere with  the decrees now passed in the suits.

5.              Though, we find some merit in the submission  that the correctness of the decision in Ammalu Amma &  Others vs. Lakshmy Amma & Others (supra) can be  seriously questioned in this Court, especially in the context  of the dissenting judgment, we do not think it necessary to  go into that question for the purpose of this case and in the  context of the Kerala Joint Hindu Family System (Abolition)  Act, 1975 which came into force on 1.12.1976.  Similarly,  we are also not inclined to accede to his prayer to  reconsider the decision in Achutha Menon vs. Jaganatha  Menon & Others (supra), as regards the view taken therein  following the above decision and also regarding the  question of estoppel feeding the grant negatived in that  decision. We think that these appeals can be decided on a  construction of Exhibit-B-9, the transaction entered into by  Cheriyammu Amma and her children and Viswanathan  Nair.   

6.              Exhibit-B-9 is termed a deed of release.   Admittedly, at the relevant time, there were only six  members in the thavazhi, Viswanathan Nair the sole  representative of his mother Ammini Amma and  Kunhimalu Amma and her four children and all of them  are parties to the transaction.  The document recites that  the property was obtained by Cheriyammu Amma and on  her death it devolved on her thavazhi which consisted of  her children, including the two daughters Ammini Amma  and Kunhimalu Amma through whom, the parties to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

present litigation claim.  The document recites that the  value of the undivided shares of Kunhimalu Amma and her  four children who were in joint possession with  Viswanathan Nair, the son of Ammini Amma was fixed at  Rs. 2,500/- at the instance of mediators and Kunhimalu  Amma and her children had decided to release their rights  for that consideration in favour of Viswanathan Nair and  they were doing so under the transaction, on receipt of the  consideration which was received for incurring the  educational expenses of the minor sons of Kunhimalu  Amma.  The document also recites that from the date of  that transaction, Viswanathan Nair in whose favour the  release is executed, was to enjoy the property as his own  with the right to alienate the same according to his volition.   As noticed, there were only six members in the thavazhi at  the relevant time.  The property belonged to the thavazhi.   Five of the members of the thavazhi or the group consisting  of Kunhimalu Amma and her children together released  their rights in the property in favour of the only other  member of the thavazhi, the son of the sister of Kunhimalu  Amma.  Such a release in favour of the thavazhi or of all  the other members of the thavazhi by some of the members  of the thavazhi or in favour of the sole other member of the  thavazhi is recognized as valid in Marumakkathayam  Law.   [See for instance, Achuthan Nambiar Vs. Kunhiraman  Nambiar & Others (1962) 1 K.L.R. 340,  Sankaranarayanan Nair Vs. Achuthan Nair, 1982 K.L.J.  61].  In fact, Shri A.S. Nambiar, learned Senior Counsel did  not argue otherwise.  His contention was only that the  transaction here amounted to an assignment of undivided  shares and consequently void in law.  On a true  interpretation of the document Exhibit-B-9, we are not in a  position to agree with the submission of Mr. Nambiar,  learned Senior Counsel that the transaction must be  understood as an assignment of the undivided shares of  the members of a marumakkathayam thavazhi.  It can only  be understood as a release of the rights by all the other  members of the thavazhi in favour of the only other  member of the thavazhi.   The transaction Exhibit-B-9 is  therefore not void in law.  

7.              It is also possible, as was held by the High  Court, to construe the transaction Exhibit-B-9 as a  partition arrangement entered into by all the members of  the thavazhi of the Cheriyammu Amma who were then  alive. Ammalu Amma & Others vs. Lakshmy Amma &  Others  (supra) relied on by learned Senior Counsel Mr.  Nambiar itself recognizes, that a partition by common  volition was possible under the Marumakkathayam Law.   The Full Bench has said, "Marumakkathayam tarwads  were partible, before Statutes conferred on individual  members or groups of members the right to claim partition,  only by general consent of all the members."  All the  members of the thavazhi of Cheriyammu Amma then  existing were parties to Exhibit B-9.  Even otherwise, after  the Madras Marumakkathayam  Act, 1932, by virtue of  Section 38 thereof, a partition could even be enforced.    Though the sub-thavazhi of Kunhimalu Amma and her  children did not take their shares in specie, they took their  shares in terms of money leaving the property to be taken  by the only other member of the thavazhi, in whose favour  the document was executed.  Satisfying the shares of some  of the members of a family in a partition, in terms of money  in lieu of shares in the property, is not unknown to law nor  can such a transaction be held to be void in the eyes of law.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

Marumakkathayam Law also does not interdict such a  partition.  Moreover, the subject matter of partition here,  was a residential house and the convenience of enjoyment  also justified such a transaction.  Therefore, we are inclined  to agree with the High Court that the transaction Exhibit- B-9 can be treated as a partition and since all the members  of the thavazhi had participated in the transaction, the  same would be valid even under marumakkathayam law  before the intervention made by the Madras  Marumakkathayam  Act, 1932 which even conferred a right  of individual partition on a member of a  marumakkathayam tarwad or marumakkathayam   thavazhi.   

8.              As we have noticed earlier, there was no occasion  to consider the question whether the transaction Exhibit-B- 9 was voidable or was vitiated for any of the reasons sought  to be put forward by the sons of Kunhimalu Amma, since  they had lost their right to challenge the transaction on the  ground that it was voidable at their instance, not having  filed a suit in that behalf within three years of attaining  majority.  Therefore, the only question that requires to be  decided and that was rightly decided, was whether the  transaction Exhibit-B-9 was void in law.  As we have held  in agreement with the courts below that the transaction  cannot be held to be void in law, the decrees now passed in  the two suits, are fully justified and no interference with  the decision of the High Court, is called for.   

9.              We, therefore, confirm the judgments and  decrees of the High Court and dismiss these appeals.   Considering the relationship between the parties, we direct  them to suffer their respective costs throughout.