2006 Supreme(SC) 40

2006(1) Supreme 231
Supreme Court of India
(From Kerala High Court)
B.P. Singh and P.K. Balasubramanyan, JJ.
C.T. Radhakrishnan —Appellant
versus
C.T. Viswanathan Nair & Anr. —Respondents
Civil Appeal Nos. 8292-8293 of 2003
Decided on 16-1-2006
Counsel for the Parties :
For the Appellant : A.S. Nambiar, Sr. Advocate, Sewa Ram and P.K. Manohar, Advocates.
For the Respondents : T.L.V. Iyer, Sr. Advocate, Ms. M. Jayasree and Rajiv Mehta, Advocates.

Important point
Release of rights in the property in favour of the thavazhi or of all the other members of the 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.

Headnote:Madras Muramakkathayam Act, 1932—Section 38—Muramakkathayam system of law—Both parties, a Hindu family was governed by—Both parties belonged to thavazhi of a common ancestor who had acquired suit property under a deed of gift—In 1954 appellant and other member of family under a deed Ex. B-9 surrendered, released or sold the suit property in favour of respondent—Deed Ex-B9 was challenged as void in view that same was an assignment of undivided shares by members of an undivided marumakkathyam tarwad or thavazhi—Appellant also filed a suit for partition—In both suits question for determination was whether transaction Ex. B-9 could be ignored as void transaction—Trial Court held transaction Ex. B-9 as valid and High Court upheld the view—Appeal—Ex B-9 was termed a deed of release and appellant through his mother with other family members decided to release their rights for consideration in favour of respondent—Such a release in favour of the thavazhi or of all other members of thavazhi by some of members of thavazhi or in favour of sole other member of thavazhi was recognized as valid under Muramakkathayam Law—Transaction was not void—Transaction could be taken as a partition arrangement also—No interference was warranted.

       Held : 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 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 fixed at Rs. 2,500/- at the instance of mediators and Kunhimalu Amma and her children had decided to release their rights for that consideration in favour 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 Amma. 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 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 of Kunhimalu Amma. Such a release in favour of the thavazhi or of all the other members of the 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 Vs. Kunhiraman Nambiar & Others (1962) 1 K.L.R. 340, Sankaranarayanan Nair Vs. Achuthan Nair, 1982 K.L.J. 61]. In fact, Shri A.S. Nambiar, learned Senior Counsel did not argue 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 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. 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 members of the thavazhi of the Cheriyammu Amma who were then alive. (Paras 6 and 7)