{"id":193721,"date":"2006-01-16T00:00:00","date_gmt":"2006-01-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-t-radhakrishnan-vs-c-t-viswanathan-nair-and-anr-on-16-january-2006"},"modified":"2018-08-01T06:48:14","modified_gmt":"2018-08-01T01:18:14","slug":"c-t-radhakrishnan-vs-c-t-viswanathan-nair-and-anr-on-16-january-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-t-radhakrishnan-vs-c-t-viswanathan-nair-and-anr-on-16-january-2006","title":{"rendered":"C.T. Radhakrishnan vs C.T. Viswanathan Nair And Anr on 16 January, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
C.T. Radhakrishnan vs C.T. Viswanathan Nair And Anr on 16 January, 2006<\/div>\n
Author: P Balasubramanyan<\/div>\n
Bench: B.P. Singh, P.K. Balasubramanyan<\/div>\n
           CASE NO.:\nAppeal (civil)  8292-8293 of 2003\n\nPETITIONER:\nC.T. RADHAKRISHNAN \t\t\t\t\n\nRESPONDENT:\nC.T. VISWANATHAN NAIR AND ANR.\t\n\nDATE OF JUDGMENT: 16\/01\/2006\n\nBENCH:\nB.P. SINGH & P.K. BALASUBRAMANYAN\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T <\/p>\n
P.K. BALASUBRAMANYAN, J.\n<\/p>\n
1.\t\tThe parties to these appeals belong to Chokkura
\nThaliyadath tarwad, a hindu family governed by
\nMarumakkathayam system of law as modified by the
\nMadras Marumakkathayam Act, 1932.  They belong to the
\nthavazhi of Cheriyammu Amma.  Cheriyammu Amma
\nacquired the suit property under a deed of gift Exhibit A-1
\ndated 19.6.1905.  On the death of Cheriyammu Amma, the
\nproperty devolved on her thavazhi, consisting of her two
\ndaughters, Ammini Amma and Kunhimalu Amma and two
\nsons Appu Nair and Gopalan Nair.  Appu Nair and Gopalan
\nNair having died, the property devolved on the thavazhi
\nconsisting of Ammini Amma and her son and Kunhimalu
\nAmma and her children, of whom four survived.  Ammini
\nAmma died in the year 1944.  On 19.9.1954, under
\nExhibit-B-9, Kunhimalu Amma acting for self and as
\nguardian of her two minor sons, Narayanan Kutty and
\nRadhakrishnan and her two major sons, Balagopalan Nair
\nand Somasundaran Nair, surrendered, released or sold
\n(this is one of the disputes in the litigation) the property to
\nViswanathan Nair, the son of Ammini Amma.  Pursuant to
\nExhibit-B-9, the patta was changed to his name and the
\nmunicipal assessment for the property was also made on
\nhim.   Viswanathan Nair, the son of Ammini Amma was the
\nsenior-most male member in the thavazhi when he took
\nExhibit-B-9.  He was in government service in the then
\nState of Madras and was living in Madras.  Kunhimalu
\nAmma and her children continued to reside in the property
\nwhich was a residential house in the town of Calicut in the
\ndistrict of Malabar in the State of the then Madras, until,
\nthe said district was added to the State of Travancore-
\nCochin to form the State of Kerala with effect from
\n1.11.1956.  Kunhimalu Amma died in the year 1963.
\nViswanathan Nair retired from government service,
\nreturned to his native place and started residing in the
\nplaint scheduled property.  He has a case that even earlier,
\nhis mother-in-law and brother-in-law were residing in the
\nbuilding and they and his local friends were looking after
\nthe property for him.  Disputes seem to have arisen when
\nRadhakrishnan, the son of Kunhimalu Amma, who was a
\nminor, at the time of Exhibit-B-9, raised claims over the
\nsuit property.  Viswanathan Nair then filed O.S. No. 327 of
\n1984 on the file of the Munsiff’s Court of Kozhikode,
\noriginally for a permanent injunction restraining the
\ndefendants, three of the surviving sons of Kunhimalu
\nAmma, from interfering with his exclusive possession of the
\nsuit property.  Subsequently, he amended the plaint and
\nadded a prayer for recovery of possession of a portion
\nlocked up by Radhakrishnan Nair, the son of Kunhimalu
\nAmma on the strength of his exclusive title based on
\nExhibit-B-9.  The two sons of Kunhimalu Amma who were
\nminors at the time of Exhibit-B-9 and on whose behalf the
\ndocument Exhibit-B-9 had been executed by Kunhimalu
\nAmma, their mother, resisted the suit essentially
\ncontending that the transaction Exhibit-B-9 entered into by
\ntheir mother and brothers, was void in law, in view of the
\nfact that the same was an assignment of undivided shares
\nby the members of an undivided marumakkathayam
\ntarwad or thavazhi and they had no right to convey such
\nundivided shares.  It may be noted that the transaction
\nExhibit-B-9 was dated 19.9.1954 and both the quondam
\nminors had attained majority more than three years prior
\nto the suit and consequently had lost their right to
\nchallenge the transaction Exhibit-B-9  as voidable as
\nopposed to an available plea that it is void in law.
\nRadhakrishnan, who was defendant No.1 in the above suit,
\nin his turn filed O.S. no. 45 of 1985 for partition of the
\nplaint scheduled property and delivery to him of his share
\ntherein on the plea that Exhibit-B-9 deed executed by his
\nmother for herself and as guardian of himself and his
\nbrother Narayanan Kutty, and by her two major sons,
\nBalagopalan Nair and Somasundaran Nair, was void in law.
\nViswanathan Nair resisted this suit by pleading that
\nExhibit-B-9 was a valid transaction being the surrender of
\nrights by all the other members of the thavazhi in favour of
\nhimself, the only other member of the thavazhi and no
\ninfirmity was attached to such a transaction.  Thus, in both
\nthe suits, the essential question that fell for decision,
\nespecially in the context of the only contention raised
\nbefore us by learned Senior Counsel Mr. A.S. Nambiar,
\nappearing on behalf of the appellant, was whether the
\ntransaction Exhibit-B-9 could be ignored by the sons of
\nKunhimalu Amma as a void transaction.\n<\/p>\n
2.\t\tThe trial court tried the suits jointly.  It held that
\nthe transaction Exhibit-B-9  was valid since it was not an
\nassignment of undivided shares by the members of an
\nundivided marumakkathayam thavazhi, who as per the
\ndecisions of the Kerala High Court binding on it, had no
\nalienable right in the undivided thavazhi property and that
\nthe transaction was really a surrender of rights by all the
\nother members of the thavazhi in favour of the only other
\nmember and such a transaction was valid in law.  The trial
\ncourt, therefore, upheld the exclusive title of Viswanathan
\nNair based on Exhibit-B-9 and decreed his suit granting
\nthe injunction and recovery of possession prayed for by him
\ntherein.  It dismissed the suit for partition on the ground
\nthat the plaintiff therein, Radhakrishnan Nair and his
\nbrothers defendants 2 and 3 in that suit, had no subsisting
\nright over the suit property as on the date of that suit.   The
\nappellant before us, the son of Kunhimalu Amma, who had
\nfiled the suit for partition, filed two appeals challenging the
\ndismissal of his suit and the decreeing of the suit filed by
\nViswanathan Nair.  The subordinate Judge, Kozhikode who
\nheard the appeals jointly, agreed with the trial court that
\nthe transaction Exhibit-B-9 was valid in law and
\nconsequently, Viswanathan Nair had acquired exclusive
\ntitle over the property and was entitled to the relief granted
\nto him in his suit and that the suit for partition filed by the
\nson of Kunhimalu Amma was rightly dismissed by the trial
\ncourt.  Thus, both the appeals were dismissed.\n<\/p>\n
3.\t\tRadhakrishnan Nair, the appellant before us,
\nfiled two second appeals before the High Court of Kerala
\nchallenging the decrees of the courts below.  As is the
\npractice in that High Court, the second appeals were
\nadmitted on the substantial questions of law formulated in
\nthe memorandum of second appeal of which the
\nrespondent in the second appeal had notice and disposed
\nof on the basis of those substantial questions of law by
\nanswering them against the appellant in the second
\nappeals and in favour of Viswanathan Nair.  The High
\nCourt held that the transaction Exhibit-B-9 was valid in
\nlaw since it could be treated as a partition among the
\nmembers of the thavazhi to enter into which they had a
\nright under the Madras Marumakkathayam  Act, 1932,
\nespecially when all the members of the family acted
\ntogether and that in a partition, it is not obligatory that
\nproperty in specie should be allotted to all the sharers and
\nit is quite possible for the sharers to take their shares in
\nterms of money and that was exactly what was done by
\nViswanathan Nair,  Kunhimalu Amma and her children,
\nwhen they entered into Exhibit-B-9 transaction.  Thus,
\nupholding the finding of the trial court and that of the
\nlower appellate court, that the transaction Exhibit-B-9 was
\nnot void in law, the High Court dismissed the second
\nappeals.  The decision in the second appeals is in challenge
\nbefore us in these appeals by special leave.\n<\/p>\n
4.\t\tMr. A.S. Nambiar, learned Senior Counsel
\nargued that Exhibit-B-9 was in fact an assignment of
\nundivided shares by the members of a marumakkathayam
\nthavazhi and such an assignment was clearly invalid in law
\nin the light of the decision of the Full Bench of the Kerala
\nHigh Court in Ammalu Amma & Others vs. Lakshmy
\nAmma & Others [1966 K.L.T. 32].  He submitted, that a
\ntransaction of sale of undivided shares was not merely
\nvoidable but was void in law as held in Mathew vs.
\nAyyappankutty [1962 K.L.T. 61] and in the situation
\nobtaining, the High Court ought to have held that
\nnotwithstanding the transaction Exhibit-B-9, the sons of
\nCheriyammu Amma were entitled to shares in the property.
\nHe also relied on the decision in Achutha Menon vs.
\nJaganatha Menon & Others [1983 K.L.T. 939].  He further
\nsubmitted that it could not be forgotten that Viswanathan
\nNair was the eldest male member of the thavazhi and hence
\nthe Karanavan of the thavazhi and in the context of the
\nconflict between right and duty, as emphasized in
\nAchuthan Nair vs. Chinnammu Amma & Others<\/a> [AIR
\n1966 SC 411], the exclusive title claimed by Viswanathan
\nNair based on Exhibit-B-9, could not be upheld.  Learned
\ncounsel submitted that on the terms of Exhibit-B-9, the
\ntransaction was clearly a sale of their undivided shares by
\nCheriyammu Amma and her sons.  Mr. T.L.Viswanatha
\nIyer, learned Senior Counsel appearing on behalf of the
\nrespondent, Viswanathan Nair, submitted that Exhibit-B-9
\nwas only a release of their rights by all the other members
\nof the thavazhi in favour of Viswanathan Nair, the only
\nother member of the thavazhi and such a transaction was
\nvalid in law.  He further submitted that the High Court was
\njustified in holding that the transaction Exhibit-B-9 could
\nbe treated as a partition which again was valid since all the
\nmembers of a thavazhi could always come together and
\neffect a partition even under the pristine
\nMarumakkathayam  Law and certainly after the coming
\ninto force of the Madras Marumakkathayam  Act, 1932,
\nwhich gave an individual member, the right to seek a
\npartition.  Learned counsel further submitted that the
\ndecision in Ammalu Amma & Others vs. Lakshmy Amma
\n& Others (supra) did not lay down the correct law and this
\nCourt would be justified in overruling that decision
\nespecially in the context of Section 38 of the Madras
\nMarumakkathayam  Act, 1932 and the right to partition
\nconferred on the members of an undivided
\nMarumakkathayam tarwad or thavazhi.  Learned counsel
\nsubmitted that even in the decision in Achutha Menon vs.
\nJaganatha Menon & Others (supra) the Court has
\nproceeded on the basis that a release by one of the
\nmembers of the thavazhi in favour of the thavazhi was valid
\nin law and the situation obtaining here was one where all
\nthe members of the thavazhi had released their rights in
\nfavour of the only other member of the thavazhi and such a
\ntransaction, even going by the customary
\nMarumakkathayam Law, was valid.  He submitted that
\nthere was no question of the theory of conflict between
\nright and duty arising in this case as the circumstances
\nshow that Cheriyammu Amma and her sub-thavazhi was in
\nneed of funds at the relevant time and they had released
\ntheir rights in the suit property in favour of the contesting
\nrespondent, for valuable consideration and the
\nconsideration that was paid was a substantial amount in
\nthe year 1954.  He submitted that the transaction Exhibit-
\nB-9 could not be held to be a void transaction and even if it
\nwas voidable, the children of Cheriyammu Amma had
\nclearly lost their right to attack the transaction on the basis
\nthat it was a voidable document, they not having filed the
\nsuit within the time permitted by law in that behalf.  He,
\nthus, submitted that there was no reason to interfere with
\nthe decrees now passed in the suits.\n<\/p>\n
5.\t\tThough, we find some merit in the submission
\nthat the correctness of the decision in Ammalu Amma &
\nOthers vs. Lakshmy Amma & Others (supra) can be
\nseriously questioned in this Court, especially in the context
\nof the dissenting judgment, we do not think it necessary to
\ngo into that question for the purpose of this case and in the
\ncontext of the Kerala Joint Hindu Family System (Abolition)
\nAct, 1975 which came into force on 1.12.1976.  Similarly,
\nwe are also not inclined to accede to his prayer to
\nreconsider the decision in Achutha Menon vs. Jaganatha
\nMenon & Others (supra), as regards the view taken therein
\nfollowing the above decision and also regarding the
\nquestion of estoppel feeding the grant negatived in that
\ndecision. We think that these appeals can be decided on a
\nconstruction of Exhibit-B-9, the transaction entered into by
\nCheriyammu Amma and her children and Viswanathan
\nNair.\n<\/p>\n
6.\t\tExhibit-B-9 is termed a deed of release.
\nAdmittedly, at the relevant time, there were only six
\nmembers in the thavazhi, Viswanathan Nair the sole
\nrepresentative of his mother Ammini Amma and
\nKunhimalu Amma and her four children and all of them
\nare parties to the transaction.  The document recites that
\nthe property was obtained by Cheriyammu Amma and on
\nher death it devolved on her thavazhi which consisted of
\nher children, including the two daughters Ammini Amma
\nand Kunhimalu Amma through whom, the parties to the
\npresent litigation claim.  The document recites that the
\nvalue of the undivided shares of Kunhimalu Amma and her
\nfour children who were in joint possession with
\nViswanathan Nair, the son of Ammini Amma was fixed at
\nRs. 2,500\/- at the instance of mediators and Kunhimalu
\nAmma and her children had decided to release their rights
\nfor that consideration in favour of Viswanathan Nair and
\nthey were doing so under the transaction, on receipt of the
\nconsideration which was received for incurring the
\neducational expenses of the minor sons of Kunhimalu
\nAmma.  The document also recites that from the date of
\nthat transaction, Viswanathan Nair in whose favour the
\nrelease is executed, was to enjoy the property as his own
\nwith the right to alienate the same according to his volition.
\nAs noticed, there were only six members in the thavazhi at
\nthe relevant time.  The property belonged to the thavazhi.
\nFive of the members of the thavazhi or the group consisting
\nof Kunhimalu Amma and her children together released
\ntheir rights in the property in favour of the only other
\nmember of the thavazhi, the son of the sister of Kunhimalu
\nAmma.  Such a release in favour of the thavazhi or of all
\nthe other members of the thavazhi by some of the members
\nof the thavazhi or in favour of the sole other member of the
\nthavazhi is recognized as valid in Marumakkathayam  Law.
\n[See for instance, Achuthan Nambiar Vs. Kunhiraman
\nNambiar & Others (1962) 1 K.L.R. 340,
\nSankaranarayanan Nair Vs. Achuthan Nair, 1982 K.L.J.
\n61].  In fact, Shri A.S. Nambiar, learned Senior Counsel did
\nnot argue otherwise.  His contention was only that the
\ntransaction here amounted to an assignment of undivided
\nshares and consequently void in law.  On a true
\ninterpretation of the document Exhibit-B-9, we are not in a
\nposition to agree with the submission of Mr. Nambiar,
\nlearned Senior Counsel that the transaction must be
\nunderstood as an assignment of the undivided shares of
\nthe members of a marumakkathayam thavazhi.  It can only
\nbe understood as a release of the rights by all the other
\nmembers of the thavazhi in favour of the only other
\nmember of the thavazhi.   The transaction Exhibit-B-9 is
\ntherefore not void in law.\n<\/p>\n
7.\t\tIt is also possible, as was held by the High
\nCourt, to construe the transaction Exhibit-B-9 as a
\npartition arrangement entered into by all the members of
\nthe thavazhi of the Cheriyammu Amma who were then
\nalive. Ammalu Amma & Others vs. Lakshmy Amma &
\nOthers  (supra) relied on by learned Senior Counsel Mr.
\nNambiar itself recognizes, that a partition by common
\nvolition was possible under the Marumakkathayam Law.
\nThe Full Bench has said, “Marumakkathayam tarwads
\nwere partible, before Statutes conferred on individual
\nmembers or groups of members the right to claim partition,
\nonly by general consent of all the members.”  All the
\nmembers of the thavazhi of Cheriyammu Amma then
\nexisting were parties to Exhibit B-9.  Even otherwise, after
\nthe Madras Marumakkathayam  Act, 1932, by virtue of
\nSection 38 thereof, a partition could even be enforced.
\nThough the sub-thavazhi of Kunhimalu Amma and her
\nchildren did not take their shares in specie, they took their
\nshares in terms of money leaving the property to be taken
\nby the only other member of the thavazhi, in whose favour
\nthe document was executed.  Satisfying the shares of some
\nof the members of a family in a partition, in terms of money
\nin lieu of shares in the property, is not unknown to law nor
\ncan such a transaction be held to be void in the eyes of law.
\nMarumakkathayam Law also does not interdict such a
\npartition.  Moreover, the subject matter of partition here,
\nwas a residential house and the convenience of enjoyment
\nalso justified such a transaction.  Therefore, we are inclined
\nto agree with the High Court that the transaction Exhibit-
\nB-9 can be treated as a partition and since all the members
\nof the thavazhi had participated in the transaction, the
\nsame would be valid even under marumakkathayam law
\nbefore the intervention made by the Madras
\nMarumakkathayam  Act, 1932 which even conferred a right
\nof individual partition on a member of a
\nmarumakkathayam tarwad or marumakkathayam
\nthavazhi.\n<\/p>\n
8.\t\tAs we have noticed earlier, there was no occasion
\nto consider the question whether the transaction Exhibit-B-
\n9 was voidable or was vitiated for any of the reasons sought
\nto be put forward by the sons of Kunhimalu Amma, since
\nthey had lost their right to challenge the transaction on the
\nground that it was voidable at their instance, not having
\nfiled a suit in that behalf within three years of attaining
\nmajority.  Therefore, the only question that requires to be
\ndecided and that was rightly decided, was whether the
\ntransaction Exhibit-B-9 was void in law.  As we have held
\nin agreement with the courts below that the transaction
\ncannot be held to be void in law, the decrees now passed in
\nthe two suits, are fully justified and no interference with
\nthe decision of the High Court, is called for.\n<\/p>\n
9.\t\tWe, therefore, confirm the judgments and
\ndecrees of the High Court and dismiss these appeals.
\nConsidering the relationship between the parties, we direct
\nthem to suffer their respective costs throughout.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India C.T. Radhakrishnan vs C.T. Viswanathan Nair And Anr on 16 January, 2006 Author: P Balasubramanyan Bench: B.P. Singh, P.K. Balasubramanyan 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-193721","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nC.T. Radhakrishnan vs C.T. 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