2024 INSC 287 1

REPORTABLE

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

twice. Her first husband was Madhavan, within whose wedlock

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

of the 19

th 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

deed, executed on 14

th 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

th 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.

5. In the year 1925, by another deed executed on 22

nd 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

judgment delivered on 24

th 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

first marriage. That deed was executed on 22

nd July 1925. The

First Appellate Court relying on the mortgage deed dated 07

th 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.

8. The First Appellate Court disbelieved that the deed of 22

nd

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 Siv aprasad (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 ther eupon

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

9

share over the property of Madhavan. The High Court in the

judgment under appeal, however, primarily relied on the deeds

executed on 14

th 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,

being Exhibit B-1 dated 7

th May 1900 (mortgage deed), Exhibit A-

20 dated 14

th 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

both the deeds dated 14

th 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

14

th 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

execute the lease deed on 14

th 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 ex-facie reveals that the conveyer does not have the title

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

made before any forum for invalidating the deed dated 14

th 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 M adhavan (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 th at 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.