Full Judgment Text
REPORTABLE
2024 INSC 287
IN THE SUPREME COURT OF INDIA
CIVIL APPEALATE JURISDICTION
CIVIL APPEAL NO. 8616 OF 2017
KIZHAKKE VATTAKANDIYIL
MADHAVAN (DEAD) THR. LRS. …APPELLANT(S)
VS
THIYYURKUNNATH MEETHAL
JANAKI AND ORS …RESPONDENT(S)
J U D G M E N T
ANIRUDDHA BOSE
The present appeal arises out of a suit for partition instituted
by one Thiyyer Kunnath Meethal Chandu (Chandu) claiming 8/20
shares in the suit property described in the schedule to the plaint
as “Kizhake vattakkandy enha Pattayathil perulla Asarikandy
pasramba, 6 feetinu ki-pa 37, the-va 35”. The appellants before
us were the defendants in the said suit, and are successors-in-
interest of one Sankaran. The latter and Chandu are uterine
brothers, both being the sons of one Chiruthey, who was married
Signature Not Verified
twice. Her first husband was Madhavan, within whose wedlock
Digitally signed by
SNEHA DAS
Date: 2024.04.09
16:25:13 IST
Reason:
Sankaran was born. Madhavan passed away sometime before the
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year 1910, though the exact year of death has not been specified
in the pleadings nor it has appeared in evidence. After Madhavan’s
death, Chiruthey contracted second marriage with Neelakandan,
who was the father of Chandu.
2. The suit property is situated in survey no. 56/8 in the village
Eravattur in the district of Kozhikode, State of Kerala. The parties
belong to Malayakamala Sect. The succession law guiding their
inheritance applicable before Hindu Succession Act, 1956 that
became operational was the modified form of Mitakshara law
applicable to the Makkathayees. But this factor is not of much
relevance for adjudication of the present appeal. Though the suit
was instituted in the year 1985, to trace the source of claim of the
plaintiff, one has to trace the title of the property. In the last year
th
of the 19 Century, (i.e. 1900) as it has transpired from evidence
adduced in course of the trial, the owners of the property appear
to be Madhavan and he, along with his mother Nangeli had
executed a deed of mortgage (Ext. B1 in the suit) on 07.05.1900 in
favour of one Nadumannil Anandhan Kaimal, son of Cheriya
Amma Thamburatti in relation to the subject-property. As we find
from the judgment of the High Court which is assailed in this
appeal, the mortgage deed itself recorded that possession of the
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property was not given to the mortgagee. The plaintiff claims his
share to the suit property from his mother, described in the plaint
as owner of the property, Chiruthey. We must point out here that
the plaintiff also had passed away during the pendency of first
appeal and before us are his successors-in-interest who are
representing his claim of share as the respondents. Those
impleaded as defendants in the suit which was registered as OS
No. 157/1985 in the Court of Munsiff Magistrate, Perambra were
successors in interests of said Sankaran.
3. Apart from Exhibit B-1, three other deeds were considered by
the respective fora before this appeal reached us. There is a deed
marked Exhibit A-20, which is described as Kannan Kuzhikanam
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deed, executed on 14 July 1910 by Chiruthey, Nangeli (mother of
Madhavan) and Sankaran (Chiruthey’s son) in favour of Cherupula
Othayoth Cheriya Amma and her son, Achuthan. On behalf of
Sankaran, who was a minor at that point of time, Chiruthey
executed the deed. This was in the nature of a deed of lease.
Achuthan was also a minor at that point of time, and the said deed
records Cheriya Amma to whom the property was being leased, for
herself and her minor son.
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4. On the same day i.e. 14 July 1910, a Verumpattam
Kuzhikkanam deed marked as Exhibit A-1 was executed by
Cherupoola Cheriya Amma for herself and for and on behalf of her
minor son Achuthan in respect of the same property in favour of
Chiruthey and another individual named Kuttiperavan. These
appear to be back-to-back transactions. Both these deeds
stipulated the term thereof to be twelve years and do not contain
any renewal clause.
nd
5. In the year 1925, by another deed executed on 22 July
1925, described as “assignment deed” which was marked Exhibit
A-2, Kuttiperavan surrendered his rights in favour of Chiruthey
and Sankaran. In this deed, it has been inter-alia, recited that the
executor thereof, being Kuttiperavan and Chiruthey had
purchased verumpattam right over the subject-property from
Cheriya Amma by fixing a rent of Rs.5/- in addition to revenue
paid for the land. This deed further reads :-
“I hereby assigning my right over this property to you for a
consideration Rs. 50 which was fixed in the presence of
mediators and my share in the decree amount obtained by
Cherupula Othayoth Cheriyamma from Payyoli District
Munsiff Court in OS 685/ 1921 for arrears of rent together
with interest and cost. My share in the said amount was
given to you for payment. So I hereby assigned all my right
over this property and hereby hand overing the possession
of the property and also hand overing all documents with
regard to the property. Hereinafter I have no right over this
property…”
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6. Sankaran passed away in the year 1956 whereas Chiruthey
died in the year 1966, as it appears from evidence led before the
Trial Court. The foundation of the claim of the partition of the
subject-property has been explained in the Trial Court’s judgment
in the following manner:-
“The plaintiffs claim over the plaint schedule property is as
follows:- The property originally belonged to Chirutheyi and
one Kuttiperavan as per a Verumpattam Deed
No.2323/1910 from one Cheriyamma. In 1925
Kuttiperavan assigned his one half share to Chiurtheyi and
her son Sankaran. Thus Chirutheyi acquired 3/4 share and
Sankaran acquired 1/4 share in the property. Sankaran
died in 1956 and his 1 /4 share was inherited by the
defendants and the mother Chirutheyi, thus Chirutheyi
acquiring 16/12 shares and the defendants acquiring 4/20
shares. Chirutheyi died in 1926 and half of her 16/20
shares would go to the plaintiff and the only remaining son,
and the remaining 8/20 shares would go to the defendants,
being the heirs of the other son Sankaran. Thus the shares
are fixed as follows: The plaintiff 8/20. The defendants
3/20 shares each. The plaint alleges that the property never
belonged to Madhavan ad alleged by the defendants in the
notice.”
7. The Trial Court sustained the claim for partition and decreed
in favour of the plaintiff therein whose interest is now represented
before us by the respondents. The First Appellate Court by a
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judgment delivered on 24 June 1996, set aside the decree and
dismissed the suit. The main issue before the Court, which is
before us as well, is as to whether Chiruthey had any title over the
subject-property which the plaintiff claimed through the series of
transactions, particulars of which we have narrated in the
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preceding paragraphs. The plaintiff claimed title over the property
through Chiruthey who was his mother, and he was born from her
second husband. The foundation of Chiruthey’s title was claimed
to be the registered lease deed bearing No. 2329/10 (Exhibit A-1).
Kuttiperavan, who was the second lessee in “Exhibit A-1” had later
released his right in the subject-property in favour of Chiruthey
and Sankaran, the latter being the son of Chiruthey through her
nd
first marriage. That deed was executed on 22 July 1925. The
th
First Appellate Court relying on the mortgage deed dated 07 May
1900 found that it was Madhavan and his mother Nangeli who
were holders of jenm right and that they were in possession of the
subject-property even after execution of the mortgage deed.
nd
8. The First Appellate Court disbelieved that the deed of 22
July 1925 was in discharge of liability under the mortgage deed. It
was also found by the First Appellate Court that Chiruthey had no
authority to create a lease and such a transaction by which she
sought to lease out the subject-property was not permissible in
law.
9. As regards Chiruthey’s right or title, it was held that she
would not derive title to her deceased husband’s property when
she got married again to Neelakandan. The First Appellate Court
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has referred to Section 2 of the Hindu Widow’s Remarriage Act,
1856 (“1856 Act”) which prevailed at the material point of time,
when she contracted her second marriage. Section 2 of the 1856
Act reads:-
“2 . Rights of widow in deceased husband's property to
cease on remarriage:-
All right and interest which any widow may have in her
deceased husband’s property by way of maintenance, or by
inheritance to her husband or to his lineal successors, or by
virtue of any will or testamentary disposition conferring
upon her, without express permission to remarry, only a
limited interest in such property, with no power of alienating
the same, shall upon her remarriage cease and determine
as if she had then died: and the next heirs of her deceased
husband , or other persons entitled to the property on her
death, shall thereupon succeed to the same.”
10. The First Appellate Court did not attribute much importance
to Exhibit A-20 which is the first of the two deeds, which was
executed in the year 1910 while referring to Section 2 of the 1856
Act. The First Appellate Court has rightly come to a finding that
Chiruthey had only a reversionary right over the suit property held
by her first husband Madhavan and the plaintiff (Chandu) could
not claim partition right on the strength of his being a uterine
brother of Sankaran born to Chiruthey after she contracted her
second marriage. She lost all her rights and interests in her
deceased husband’s property on contracting second marriage with
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Neelakandan. There is an authority on this position of law.
Velamuri Venkata Sivaprasad (Dead) by lrs. -vs- Kothuri
Venkateswarlu (dead) by lrs. And Others [(2000) 2 SCC 139], in
which it has been held:-
“17. Section 2 of the Act of 1856, therefore, has taken away
the right of the widow in the event of remarriage and the
statute is very specific to the effect that the widow on
remarriage would be deemed to be otherwise dead. The
words “as if she had then died” (emphasis supplied) are
rather significant. The legislature intended therefore that in
the event of a remarriage, one loses the rights of even the
limited interest in such property and after remarriage the
next heirs of her deceased husband shall thereupon
succeed to the same. It is thus a statutory recognition of a
well-reasoned pre-existing Shastric law.”
11. The High Court in the second appeal formulated five
questions of law as substantial ones, which are reproduced below:-
“a ) Was the court below justified in holding that Exts.A1 and
A20 transactions are not genuine in the absence of any
pleadings and evidence to arrive at such a finding?
b) Was the interpretation placed by the court below on
Exts.A1, A2, A20, and B1 correct and proper?
c) Was the court below justified in relying on Exts.A1 and
A20, which are not the original documents on the ground
that Section 90 of the Indian Evidence Act would apply?
d) Are the defendants entitled to question the validity of the
transactions covered by Exts.A1 and A20, without the same
being challenged in a properly constituted suit?
e) Was the court below justified in upholding the plea of
ouster and adverse possession without any evidence on the
side of the defendants to prove the same?”
12. Thus, when Chiruthey contracted her second marriage by
operation of Section 2 of the 1856 Act, she had lost title of her
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share over the property of Madhavan. The High Court in the
judgment under appeal, however, primarily relied on the deeds
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executed on 14 July 1910 to sustain the claim of Chandu (since
deceased), represented by his successors-in-interest.
13. The High Court proceeded on the basis of three documents,
th
being Exhibit B-1 dated 7 May 1900 (mortgage deed), Exhibit A-
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20 dated 14 July 1910 which is the deed by which Chiruthey,
Nangeli and Sankaran (through Chiruthey as he was minor at that
point of time) created lease-right in favour of Cherupula Othayoth
Cheriya Amma and her son Achuthan and on the same date
Exhibit A-1, a Verumpattam Kuzhikkanam deed was also executed
in favour of Chiruthey and Kuttiperavan. Through the fourth deed,
marked as Exhibit A-2, Kuttiperavan surrendered his rights in the
property to Chiruthey and Sankaran. Questions were raised about
admissibility of these documents before the High Court but as
marking of these documents were not objected before the Trial
Court, the High Court held that at the stage of second appeal, such
objections could not be raised. We accept the High Court’s view on
this point.
14. The High Court also rejected the defendant’s contention that
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both the deeds dated 14 July 1910 were strange transactions as
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the aforesaid exhibits were not challenged by them at any point of
time in the course of trial. We also do not find any flaw in the High
Court’s reasoning on this point also.
15. Dealing with the appellant’s case that Chiruthey was divested
of any right to her late first husband’s property by virtue of the
1856 Act, the High Court observed:-
“10. Learned counsel for the respondent submitted that on
Madhavan's death, which was evidently before 1910, his
rights devolved on Sankaran. Chirutheyi would not get any
right on Madhavan's death as per the personal law
applicable to the parties. The right of a widow to hold the
property was recognised by the Hindu Women's Right to
Property Act, 1937. It is submitted that before 1937,
Chirutheyi had re-married Neelakantan and, therefore, her
right, if any, had lost by Section 2 of the Hindu Widows Re-
marriage Act, 1856. The counsel relied on the decisions in
Sivaprasad V. Venkateswaralu : 2000 (1) KLT SN 11(SC)
and Dharmarajan V. Narayanan: 2000 (2) KLT 895. I do not
think that the contention put forward by the learned counsel
for the respondents deserves acceptance. This is not a case
where the rights of parties are to be ascertained as if no
document was executed and as if the property remained
undivided. Exhibits A1 and A20 came into existence in
1910, by which the predecessor in interest of the
defendants, Sankaran, and his mother, who admittedly
were having rights, lost possessory title. If Ext.A20 is a valid
and binding document, the question as to the rights of a
widow and the extinguishment of the rights of the widow on
re-marriage do not arise for consideration. As stated earlier,
the defendants are not entitled to challenge the validity of
Ext.A1 and A20 in defence to the suit for partition. The
question whether the plaintiff has right to get a share is to
be determined with reference to the documents in existence,
namely, Exts.A1, A2 and A20 and not with reference to
what would have been the state of affairs had no document
been executed.”
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16. The High Court also rejected the contention made on behalf
of the appellants that they had become the owners of the suit
property on the basis of adverse possession but that aspect of the
matter has not been argued before us and we do not want to
disturb the finding of the High Court on that issue.
17. Turning back to the three post 1900 deeds, we are not in
agreement with the reasoning of the High Court in full. On
remarriage of Chiruthey, after the death of Madhavan, her title or
interest over the suit property stood lapsed in terms of Section 2
of the 1856 Act. Thus, Chiruthey’s right to deal with property
derived from Madhavan stood extinguished so far as the deed of
th
14 July 1910 is concerned (Exhibit A-20). But it was not
Chiruthey alone who had executed that instrument, it was Nangeli
and also Sankaran, (son of Chiruthey) who had executed it and
remained valid legal heirs of Madhavan (since deceased). There is
no conflict at least on that point. We have no material before us
that Madhavan had any other legal heir. In such a situation, even
if we discount Chiruthey’s title over the property forming subject
of lease, it stood conveyed by its actual owners i.e., Nangeli and
Sankaran. To that extent, we accept the validity of the lease deed,
that was otherwise proved in the Trial Court. Once we find the
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Exhibit A-20 to be valid conveyance, we do not think the corollary
transaction which is marked as Exhibit A-1 bearing
No.2329/1910, by which the same property was leased back to
Chiruthey and Kuttiperavan to be invalid. These back-to-back
transactions may be unusual, but in absence of any evidence
pointing to any illegality, we hold them to be valid. The High Court
on finding that these deeds are valid restored the Trial Court’s
judgment and decree. The underlying reasoning of the High Court
was that Chiruthey had legitimate right over the property. We
however, find a flaw in this reasoning of the judgment of the High
Court.
18. The High Court as also the Trial Court have held that since
the deeds were proved, implying that Cheruthey had the right to
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execute the lease deed on 14 July 1910 so far as the deed of re-
lease is concerned, the same might entitle her to be the beneficiary
as a lessee thereof. But it would be trite to repeat that even if
subsistence of a deed is proved in evidence, the title of the
executing person (in this case Chiruthey) does not automatically
stand confirmed. If a document seeking to convey immovable
property reveals that the conveyer does not have the title
ex-facie
over the same, specific declaration that the document is invalid
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would not be necessary. The Court can examine the title in the
event any party to the proceeding sets up this defence. Chiruthey
could not convey any property over which she did not have any
right or title. Her right, if any, would stem from the second deed of
lease (Exhibit A-1). We are conscious of the fact that no claim was
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made before any forum for invalidating the deed dated 14 July
1910 (Exhibit A-20). But in absence of proper title over the subject
property, that lease deed even if she was its sole lessor would not
have had been legally valid or enforceable. If right, title or interest
in certain property is sought conveyed by a person by an
instrument who herself does not possess any such form of
entitlement on the subject being conveyed, even with a subsisting
deed of conveyance on such property, the grantee on her
successors-in-interest will not have legal right to enforce the right
the latter may have derived from such an instrument. We,
however, have not disturbed the transaction arising from Exhibit
A-20 as the two legal heirs of Madhavan were also the lessors
therein and to that extent, the document marked as Exhibit A-20
would not have collapsed for want of conveyable title, right or
interest. What she got back by way of the document marked as
Exhibit A-1 was limited right as that of a lessee and not as a
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successor of her first husband Madhavan (since deceased).
Moreover, this lease (Exhibit A-1) was also for a period of twelve
years and the re-lease deed made in the year 1925 which is Exhibit
A-2 could not operate as by that time, the entitlement of
Kuttiperavan over the subject property also stood lapsed as the
document marked as Exhibit A-1 also had a duration of twelve
years. No evidence has been shown before us as to how
Kuttiperavan, in the capacity of a lessee could exercise his right
after the term of lease granted to him was over.
19. The plaintiff (now represented by his successors as
respondents) sought to claim his share of suit property through
Chiruthey. But as we have already explained, Chiruthey had lost
her right over the subject property on her contracting second
marriage. Secondly, her status over the said property, post-1910 if
at all was that of lessee. There is no indication in any of the deeds
that the said lease (Exhibit A-1) could travel beyond the stipulated
term of twelve years. The ownership of the suit property could not
be said to have devolved in any manner whatsoever to the original
plaintiff, who was born within the wedlock of Chiruthey and
Neelakandan. Hence, we set aside the decision of the High Court
and the decision of the First Appellate Court shall stand confirmed.
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20. The appeal stands allowed in the above terms and interim
order, if any, shall stand dissolved. Pending applications (if any)
shall stand disposed of in the above terms.
21. There shall be no order as to costs.
...…………………………J.
(ANIRUDDHA BOSE)
……..………………………J.
(SUDHANSHU DHULIA)
New Delhi;
April 09, 2024.
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