BHAGYAM AMMAL Vs. MAYILSWAMY ROUNDER

JUDGEMENT

(1.) Plaintiffs in O.S. No. 466 of 1982 on the file of the Court of Subordinate Judge, Palghat, are the appellants. Suit is for partition.

(2.) Deceased Mayilswamy Kounder, husband of the 1st plaintiff and father of plaintiffs 2 and 3 and his father deceased Panchayappa Kounder were members of an undivided Hindu joint family. The properties belonged to the joint family and in a partition by members of the family on 3-2-1953, the plaint schedule properties were allotted to the share of Panchayyappa Kounder as B schedule to the partition deed. Since the property was ancestral Panchayyappa Kounder's son Mayilswamy Kounder was also entitled to a share in the joint family property. Panchayappa Kounder died six months prior to the filing of the suit and Mayilswamy Kounder died one and a half years prior to the death of Mayilswamy Kounder. Plaintiffs are minor sons of Mayilswamy Kounder. Mayilswamy Kounder was suffering from insanity before his death. After the death of Mayilswamy Kounder, Ist plaintiff was residing with her father at Palghat. One Muthu Kounder, brother of defendants wife filed a suit against Pachayyappa Kounder for recovery of Rs.1500/- on the strength of a promissory note and obtained a decree against Pachayyappa Kounder. The property was brought to sale and taken delivery of by the defendant. Plaintiffs alleged that the promissory note was not genuine and that in any event the decree cannot be binding on the half right of Mayilswamy Kounder over the property. In O.S.No. 382 of 1977 Mayilswamy Kounder was not a party. The Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force on 1-12-1976 and the family stood divided by virtue of the provisions of S.4 of the said Act and thereafter Pachayyappa Kounder could not represent the joint family or Mayilswamy Kounder in any proceeding and any decree obtained without Mayilswamy Kounder on the party array cannot bind either Mayilswamy Kounder or his share in the joint family property. The plaintiffs averred that the defendant had not got the sale certificate in respect of the whole property and the plaintiffs are entitled to claim partition and separate possession of the one half share of Mayilswamy Kounder.

(3.) In the written statement filed by the defendant, the defendant disputed the contention that Mayilswamy Kounder was insane. He also averred that the suit was decreed against Pachayappa Kounder as the Manager of the family and that since the promissory-note was executed in favour of Pachayyappa Kounder long before the coming into force of the Kerala Joint Hindu Family System (Abolition) Act, a decree for attachment and sale of the property is valid and cannot be challenged.