KORAH ABRAHAM Vs. MARKOSE OUSEPH

JUDGEMENT

(1.) Appeal by the 1st defendant.

(2.) The facts concurrently found by the Courts below are: The suit property belonged to Pathrose, the late brother of the plaintiff; defendants 2 and 3 are born to Pathrose and Dw. 4 before they got married on October 16, 1927; Pathroses father, Markose, had executed Ext. C in 1111 (1936) gifting the property to his younger son, Mathai; Mathai died unmarried; the plaintiff is his heir; and defendants 2 and 3 on July 16,1951, sold the property under Ext. B to the 1st defendant who is in possession of the property since then. This suit has been instituted on December 1,1951, for declaration of title to the property with the plaintiff and for its recovery with mesne profits. The Munsiff found defendants 2 and 3 to be illegitimate children of Pathrose disentitled to succeed him and therefore the 1st defendant to have derived no right to the property under their conveyance, and the plaintiff to be sole heir of Pathrose entitled to the suit property and allowed the suit. The Additional District Judge affirmed him observing further that from 1111 (date of Ext. C) till 1126/1951 (when Mathai died) Mathai had been asserting title to the property and himself and after him the plaintiff had been in possession of the suit property. Hence this second appeal.

(3.) The findings of the Courts below that defendants 2 and 3 are illegitimate children of Pathrose because they were born before actual solemnisation of the marriage between their parents cannot be accepted. A Practical Commentary on the Code of Canon Law by Woywod and Smith (1957 Edition), Para.1150, reads thus: