Holding

The release deed is a valid release of rights (or partition) by the members of the thavazhi in favour of the sole other member and is not void in law.

Summary

The dispute involved a release deed (Exhibit‑B‑9) executed in 1954 by Kunhimalu Amma, as guardian of her minor sons, and her two adult sons, surrendering their rights in a family house to Viswanathan Nair, the sole other member of the Marumakkathayam thavazhi. The appellant, Radhakrishnan, contended that the deed was an illegal assignment of undivided shares, void under Marumakkathayam law, and that he could challenge it as a minor. The respondents argued that the deed was a valid release of rights, or alternatively a lawful partition under the Madras Marumakkathayam Act, Section 38, and that the appellant had lost his right to sue because he did not file suit within three years of attaining majority. The Supreme Court held that the deed constituted a release of rights (or a partition) by all members in favour of the sole other member, which is recognised as valid under both traditional Marumakkathayam law and the 1932 Act, and therefore was not void in law. Consequently, the decrees granting exclusive possession to Viswanathan Nair were affirmed and the appeals dismissed.

Issues considered

Whether the release deed is an assignment of undivided shares, which would be void under Marumakkathayam law.
Whether the deed can be construed as a valid partition under the Madras Marumakkathayam Act, 1932, Section 38.
Whether the minor heirs lost the right to challenge the transaction due to the limitation period for suits after attaining majority.

Subjects

Marumakkathayam lawrelease deedpartitionminoritylimitation periodHindu joint familyancestral propertyMadras Marumakkathayam ActSection 38property rights

Judgment

C.T. RADHAKRISHNAN A
v.
C.T. VISWANATHAN NAIR AND ANR.

JANUARY 16, 2006

[B.P. SINGH AND P.K. BALASUBRAMANYAN, JJ.] B

Hindu law:

Madras Marumakkalhayam Act, 1932, Sec/ion 38:
c
Ancestral property-Some of lhe legal heirs assigning their share in the
property in favour of another legal heir on consideralion by wi;o• of a release
deed-Challenged by one of the legal heirs/assignors on the ground that he
was minor when release deed executed-Filing of a suit for permanent
injunction and recovery of possession by the Vendee//egal heir-Trial Court D
held the release deed valid on the ground that it was not an assignment of
undivided shares in the property and the minor legal heir had no alienable
right in the undivided thavazhi property-Affirmed by the first Appellate Court
and the High Court-On appeal, held: Release ofshares/rights in the property
by all the other members in favour of a member of the same thavazhi is valid
in Marumakkathayam /aw-Transaction in question could also be construed E
as partition arrange men/ enlered into by all members of thava::.hi since shares
of the members satisfied in terms of consideralion amount in lie1< of such
)
·Y assignment-Minor-legal heir did not claim his share in the property by filing
a suit within three years after attaining lhe age of majority; the assignment
~~~ F
Appellant and Respondents belong to Chokkura thaliyadathtarwad,
a Hindu family governed by Marumakkathayam system of law under the
Madras Marumakkathayam Act. The dispute arose between them in
respect of claim of share in the property. The property in dispute originally
owned by one 'C' and after her death, the property devolved on her G
thavazhi, two daughters and their children. Respondent is the son of one
-{ of the daughters and appellant is the son from another daughter of the
original owner of the property. Appellant's mother acting for self, her two
minor sons including appellant and her two major sons sold the property
in favour of the only other legal heir, the respondent on payment of certain H
367
368 SllPREME COlJRT REPORTS (2006] I S.C.R.

A sum as consideration amount in terms of a 'release deed' (Exhibit-89).
Appellant raised claim for his share in the disputed property on the ground
that he was minor when his share in the property was assigned by his
mother in favour of the respondent. Respondent filed a suit for permanent
injunction and also for recovery of possession against the appellant. Trial
B Court decreed the suit filed by the respondent. The order of the Trial
Court was affirmed by the First Appellate Court and the High Court.
Hence the present appeals.

Appellant contended that Exhibit-89, the release deed, was in fact
an assignment of undivided shares by the members of a
C Marumakkathayam thavazhi and such an assignment was clearly invalid
in law and that a transaction of sale of undivided shares was not merely
voidable but was void in law.

Respondent submitted that in terms of Exhibit-89, the release deed,
rights of all the other members of the thavazhi were released in his favour,
\
D the only other member of the thavazhi and such a transaction was valid
in law; that the High Court was justified in holding that the transaction
Exhibit-89 could also be treated as a partition which again was valid since
all the members of a thavazhi could always come together and effect a
partition even under the pristine Marumakkathayam Law and certainly
E after the coming into force of the Madras Marumakkathayam Act; that
there was no question of the theory of conflict between right and duty
arising in this case as the circumstances show that other member/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 respondent for a valuable r
consideration; and that the appellant did not file the suit within the
F limitation period on attaining the age of majority, thus, there was no
reason to interfere with the decrees passed in the suits.

Dismissing the appeals, the Court

HELD. I.I. There were only six members in the thavazhi at the
G relevant time. The property belonged to the thavazhi. Five of the members
of the thavazhi or the group consisting of 'K' and her children together
released their rights in the property in favour of the only other member 1--

of the thavazhi, the son of the sister of 'K'. Such a release in favour of
the thavazhi or of all the other members of the thavazhi by some of the
H members of the thavazhi or in favour of the sole other member of the
thavazhi is recognized as valid in Marumakkathayam Law. On a true
C.T. RADHAKRISHNAN 1·. CT VISWANATHAN NAIR 369
interpretation of the document Exhibit-B-9 the release deed, the A
transaction could only be understood as a release of the rights by all the
other mem hers of the thavazhi in favour of the only other member of the
thavazhi. The transaction is, therefore, not void in law.
1374-G-H; 375-A-B-C(

Achuthan Nambiar v. Kunhiraman Nambiar & Ors., (1962) I K.L.R. B
340 and Sankaranarayanan Nair v. Achuthan Nair, (1982) K.L.J. 61,
referred to.

1.2. 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 C
all the members of the thavazhi of 'C', the original owner of the property,
who were then alive. All the members of the thavazhi of original owner
then existing were parties to Exhibit B-9. E\·en otherwise, after the Madras
Marumakkathayam Act, by virtue of Section 38 thereof, a partition could
even be enforced. Though the sub-thavazhi of 'K' and her children did
I
not take their shares in specie, they took their shares in terms of money D
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. Marumakkathayam Law also does E
not interdict such a partition. Moreover, the subject matter of partition
was a residential house and the convenience of enjoyment also justified
such a transaction. Hence, the High Court rightly held that the transaction
yr' in question 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 F
Madras Marumakkathayam Act, 1932 which even conferred a right of
individual partition on a member of a marumakkathayam tarwad or
marumakkathayam thavazhi. 1375-F; G-H; 378-A-B-Ci

Ammalu Amma & Ors. v. Lakshmy Amma & Ors., (1966) K.L.T. 32, G
referred to.

2. 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'K', since they had lost their right
to challenge the transaction on the ground that it was voidable at their H
370 SUPREME COURT REPORTS [2006 j I S.C.R.

A 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 by the Courts below by holding that the
transaction in question was not void in law. Hence, the decrees passed in
the two suits are fully justified and no interference with the decision of
B the High Court is called for. (376-D-EI

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8292-8293
of 2003.

From the Judgment and Order dated 28.2.03 of the Kerala High Court
in S.A. No. 795/95-C and S.A. No. 795/95.
c A.S. Nambiar, Sewa Ram and P.K. Manohar for the Appellant.

T.L.Y. Iyer, Ms. M. Jayasree and Rajiv Mehta for the Respondents.

The Judgment of the Court was delivered by
\
D P.K. BALASUBRAMANYAN, J. I. 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 prope11y under a deed of gift
E 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
F 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-El-9, the
G patta was changed to his name and the municipal assessment for the property
was also made on him. Yiswanathan 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
H the State of the then Madras. until. the said district was added to the State of
(

CT. RADHAKRISHNAN 1·. C.T VISWANA THAN NAIR [BALASUBRAMANYAN, J.] 37J

Travancore-Cochin to fonn the State of Kerala with effect from 1.11.1956. A
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. Dispute~ ~erm to have arisen when B
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
t'l. filed O.S. No. 327 of 1984 on the file of the Munsiffs Court of Kozhikode,
originally for a pennanent 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 C
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 Anima, their mother, resisted
the suit essentially contending that the transaction Exhibit-B-9 entered into D
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 E
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. I in the above suit,
in his tun: 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 F
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 hy 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 G
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.
H
372 SUPREME COURT REPORTS [20061 I S.C.R.

A 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
B 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
C 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 dismissa: of his suit and
the decreeing of the suit filed by Yiswanathan 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
D had acquired exclusive title over the property and was entitled to the relief
granted 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.

E 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 adminec 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
F 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
G 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 coun that the transaction Exhibit-B-9 was not void in law,
H the High Court dismissed the second appeals. The decision in the second
{I

C.T. RADllAKRISHNAN r. C.T. VISWANATHAN NAIR (BALASUBRAMANYAN. l] 373

',,)
appeals is in challenge before us in the_se appeals by special leave. A
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 an1 Ors. v. Lakshmy Amma and Jrs., (1966) K.L.T. 32. B
He submitted, that a transaction of sale of undivided shares was not merely
-: voidable but was void in law as held in Mathew v. 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 v. Jaganatha Menon and Ors .. (1983) K.L.T. 939. He
c
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 v. Chinnammu Amma and Ors., AIR (1966) SC 411, the
"
,l exclusive title claimed by Viswanathan Nair based on Exhibit-B-9, could. not D
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 E
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 effect a partition even under the pristine
Marumakkathayam Law and certainly after the coming into force of the F
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 and Ors. v. Lakshmy Amma and Ors., (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, 19°32 and the right to partition conferred on the
G
-I
members of an undivided Marumakkathayam tarwad or thavazhi. Learned
counsel submitted that even in the decision in Achutha Menon v. Jaganatha
Menon and Ors., (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 H
374 SUPREME COURT RFPOR rs 12006] I S.C.R.

A thavazhi had released their rights in favour of the only other member of the
thavazh i 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
B 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
C 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 and Ors. v. Lakshmy Amma and Ors.,
D (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
E decision in Achutha Menon v. .faKanatha Menon and Ors., (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. w~ 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.
F
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
G 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 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
H fixed at Rs. 2,500/- at the instance of mediators and Kunhimalu Amma and
-(
CT. RADHAKRISHNAN '" C.T VISWANATHAN NAIR (BALASUBRAMANYAN. J] 375

her children had decided to release their rights for that consideration in favour A
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 Am ma. 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 B
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 ofKunhimalu Amma.
Such a release in favour of the thavazhi or of all the other members of the C
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 v. Kunhiraman Nambiar and Ors
(1962) I K.L.R. 340 and Sankaranarayanan Nair v. Achuthan Nair, (1982)
K.L.J. 61. In fact, Shri A.S. Nambiar, learned Senior Counsel did not argue D
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 E
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 F
members of the thavazhi of the Cheriyammu Amma who were then alive.
Ammalu Amma and Ors v. Lakshmy Amma and Ors. (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 G
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 H
376 SUPREME COURT REPORTS [2006) I S.C.R.

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

S.K.S. Appeal dismissed.