* Author
[2024] 4 S.C.R. 383 : 2024 INSC 287
Kizhakke Vattakandiyil Madhavan (Dead) Thr. Lrs.
v.
Thiyyurkunnath Meethal Janaki and Ors
(Civil Appeal No. 8616 of 2017)
09 April 2024
[Aniruddha Bose* and Sudhanshu Dhulia, JJ.]
Issue for Consideration
Issue arose whether wife, on her remarriage had any title over
the property derived from her first husband, which her son from
the second husband, claimed through the series of transactions.
Headnotes
Hindu Widow’s Remarriage Act, 1856 – s. 2 – Rights of widow
in deceased husband’s property to cease on remarriage –
Wife contracted a second marriage after the death of the
first husband – Son born from the second marriage filed suit
for partition claiming the share in the suit property vested in
his mother from her first husband – Son born from the first
marriage impleaded as defendants – Trial court allowed the
claim for partition – However, the first appellate court dismissed
the suit for partition – In appeal, the High Court restored the
trial court’s judgment and decree – Correctness:
Held: On remarriage of wife, after the death of her first husband,
her title or interest over the suit property stood lapsed in terms
of s. 2 – Thus, wife’s right to deal with property derived from her
first husband stood extinguished as regards the deed of 1910 –
However, it was not wife alone who had executed that instrument,
it was her mother-in-law and her son, from first marrige who had
executed it and remained valid legal heirs of the first husband
(since deceased) – Wife 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 – No claim was made before any
forum for invalidating the deed of 1910 – However, 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 – Son from second marriage, respresented through
his successors, sought to claim his share of suit property through
the mother – But the mother had lost her right over the subject
384 [2024] 4 S.C.R.
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property on her contracting second marriage – Her status over the
said property, post-1910 if at all was that of lessee – No indication
in any of the deeds that the said lease could travel beyond the
stipulated term of twelve years – Ownership of the suit property
could not be said to have devolved in any manner whatsoever to
the son from her second husband – Thus, the decision of the High
Court set aside and that of the first appellate court dismissing the
suit for partition is confirmed. [Paras 17-19]
Title – Title to a document – Deed of conveyance – Conveyer not
having the title over the property – Legal right of successorsin-interest on the property:
Held: 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 – 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 would not be necessary –
Court can examine the title in the event any party to the proceeding
sets up this defence. [Para 18]
Case Law Cited
Velamuri Venkata Sivaprasad (Dead) by lrs. v. Kothuri
Venkateswarlu (dead) by lrs. And Others [1999] Suppl.
4 SCR 522 : (2000) 2 SCC 139 – referred to.
List of Acts
Hindu Widow’s Remarriage Act, 1856.
List of Keywords
Hindu Widow’s Remarriage; Partition; Title or interest over the
property; Validity of the lease deed; Valid conveyance; Legitimate
right; Deed of conveyance.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No.8616 of 2017
From the Judgment and Order dated 18.01.2008 of the High Court
of Kerala at Ernakulam in SA No. 653 of 1996
[2024] 4 S.C.R. 385
Kizhakke Vattakandiyil Madhavan (Dead) Thr. Lrs. v.
Thiyyurkunnath Meethal Janaki and Ors
Appearances for Parties
V. Chidambaresh, Sr. Adv., A. Venayagam Balan, K. P. Rajagopal,
Jaimon Andrews, Piyo Harold Jaimon, Naresh Kumar, Advs. for the
Appellants.
C. K. Sasi, John Mathew, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Aniruddha Bose, J.
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 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 19th 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
386 [2024] 4 S.C.R.
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which is assailed in this appeal, the mortgage deed itself recorded
that possession of the 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 14th 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.
4. On the same day i.e. 14th 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 22nd 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
[2024] 4 S.C.R. 387
Kizhakke Vattakandiyil Madhavan (Dead) Thr. Lrs. v.
Thiyyurkunnath Meethal Janaki and Ors
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…”
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 subjectproperty 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 24th 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
388 [2024] 4 S.C.R.
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the subject-property which the plaintiff claimed through the series
of transactions, particulars of which we have narrated in the
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 22nd July
1925. The First Appellate Court relying on the mortgage deed
dated 07th 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 22nd 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 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.”
[2024] 4 S.C.R. 389
Kizhakke Vattakandiyil Madhavan (Dead) Thr. Lrs. v.
Thiyyurkunnath Meethal Janaki and Ors
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 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?
390 [2024] 4 S.C.R.
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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 share over
the property of Madhavan. The High Court in the judgment under
appeal, however, primarily relied on the deeds executed on 14th 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 7th May 1900 (mortgage deed), Exhibit A-20
dated 14th 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 14th July 1910 were strange transactions as 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,
[2024] 4 S.C.R. 391
Kizhakke Vattakandiyil Madhavan (Dead) Thr. Lrs. v.
Thiyyurkunnath Meethal Janaki and Ors
Chirutheyi had re-married Neelakantan and, therefore, her
right, if any, had lost by Section 2 of the Hindu Widows Remarriage 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.”
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 14th 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
392 [2024] 4 S.C.R.
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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 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 14th 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 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 14th 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
[2024] 4 S.C.R. 393
Kizhakke Vattakandiyil Madhavan (Dead) Thr. Lrs. v.
Thiyyurkunnath Meethal Janaki and Ors
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 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.
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.
Headnotes prepared by: Nidhi Jain Result of the case:
Appeal allowed.
