KIZHAKKE VATTAKANDIYIL MADHAVAN (DEAD) THR. LRS.versusTHIYYURKUNNATH MEETHAL JANAKI AND ORS

                  [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
* Author
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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 successors-
       in-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
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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 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 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
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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?
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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 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.”
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
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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.