K DEVABALAN Vs. M VIJAYAKUMARI

JUDGEMENT

(1.) Plaintiffs 1 to 5 in O.S.No.133 of 1978 on the file of the Court of Addl. Subordinate Judge, Trivandrum, are the appellants. The suit is for declaration of the title of the plaintiffs and the 4th defendant over the plaint schedule property and for an injunction restraining the defendants 1 to 3 from entering into the plaint schedule property and alternatively to recover possession of the property if the court finds that the 3rd defendant is in possession of the suit property during the pendency of the suit. There is also a prayer for partition of the suit property if the court finds that the document Ext.B7 dated 13-3-1975 is not void in its entirety.

(2.) It is the plaintiffs' case that the plaint schedule property obtained by Adichan Nadar, the father of the 4th defendant, under the partition deed of the year 1079 evidenced by Ext.A1, that the plaintiffs, the Ist defendant and Santhakumari are the children of the 4th defendant, that they are Hindu Nadars governed by Hindu Mithakshara Law, that the properties obtained by Adichan Nadar devolved on the 4th defendant and he was in possession of the same as Manager of the joint family, and that the plaintiffs obtained right over the properties of the joint family by birth. It was also alleged in the plaint that on 13-3-1975 the 4th defendant representing himself as the sole owner of the property, executed a gift deed Ext.B7 in respect of the suit property in favour of the Ist defendant, but that document is void as the 4th defendant was incompetent to execute the document for the following reasons:

(3.) Defendants l and 2 filed written statement contending that the plaintiffs and defendants are all Christians and not Hindus, that after the death of Adichan Nadar, the 4th defendant inherited his properties as his only son and that he was in possession of the property as absolute owner and not as the Manager of the joint family. It was also alleged that he embraced Christianity and married a Christian lady by name Mariya Augustina and adopted the name Yesudas and the plaintiffs who were born to the couple are Christians by birth and therefore no question of joint family arose. According to the defendants, the plaintiffs did not get any right by birth and the parties are not Hindus governed by Hindu Mithakshara Law. The 4th defendant being the sole and absolute owner of the property he was competent to execute the document Ext.B7 and that it was valid and not void as alleged in the plaint. They also averred that the Ist defendant was in possession of the property ever since the date of Ext.B7 gift deed and the 3rd defendant got possession after the sale in his favour. According to them the plaintiffs had no possession of any part of the plaint schedule properties and it was the 4th defendant who was conducting the suit behind the plaintiffs, and the suit was not maintainable in view of the provisions contained in the Joint Family Abolition Act and in the circumstances the suit is liable to be dismissed.