C T RADHAKRISHNAN Vs. C T VISHWANATHAN NAIR

JUDGEMENT

(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 Marumak-kathayam 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 Munsiffs Court of Kozhikode, 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 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.