NIRAMATHI NAICKAR Vs. KAMBALAM NAICKER

JUDGEMENT

(1.) Plaintiffs in O. S. No. 69 of 1981, on the file of District Munsif's Court, Srivillibuttur, are the appellants.

(2.) Plaint Schedule property is two cent of land with a well in survey No. 405/C6, Rajapalayam Taluk. The suit property is a portion of 21 cent of land which, according to plaintiffs, belonged to their joint family. Plaintiffs and their elder brother, third defendant in the suit, are admittedly members of a Hindu Joint Family. Their father died about 22 years back prior to the institution of the suit. On the death of their father, mother Sakkamamal was managing the property, and when third defendant attained majority, he became the manager. It is said that the joint family possessed only 6 acres of dry land, and some of them are rain-fed. Plaintiffs are depending only on the properties for their livelihood. It is said that on 25-3-1980, the Kambala Naicker residents of the village (2nd defendant) prevailed upon the third defendant with a false promise, and asked him to execute a registered gift deed in respect of the well situated in the suit property. Accordingly, a gift deed was executed in favour of first defendant, i.e., B.D. O., Rajapalayam. As per the gift deed, the 3rd respondent also promised to put up a water storage tank for the benefit of the villagers. The schedule property, according to plaintiffs, in an anceatral property. A coparcerner is not entitled to execute a gift deed in respect of an ancestral property, and the same is void under law. It is said that the joint family manager can execute a gift deed in resspect of the joint family property only in favour of daughter or wife. Any gift in favour of a stranger is invalid and not binding on the family. Third defendant has made the gift without the consent of the plaintiffs, who were then majors. In the gift deed, they were shown as minors, and they are represented by their guardian third defendant. It is further said that by executing the gift deed in respect of the well, the remaining 19 cents of land has become unfit for cultivation and, therefore, plaintiffs are put to great loss and hardship. The remaining 19 cents cannot be made use of for any purpose, and the same has to lie fallow due to water scarcity. It is said that as soon as the plaintiffs came to know about the gift, they requested the second defendant to give back the property. But their demand was not complied with. Second defendant, with more than 150 persons trespassed into the property and began to give trouble to the plaintiffs. It is further said that the Kambalam Naicker Community has began to claim title to the property, and they have also removed few coconut saplings, causing loss to the plaintiffs. They are threatening the plaintiffs that they will not allow them to cultivate even the remaining extent of land, nor will they permit the plaintiffs to take water from the well in question. The suit was, therefore necessitated. In the suit, plaintiffs have prayed for a declaration that the gift deed dated 25-3-80 in favour of the first defendant is void, for a further declaration that the suit property absolutely belongs to the joint family consisting of plaintiffs and third defendant, and for a consequential injunction to restrain the defendants 1 and 2 from interfering with their possession, and for consequential reliefs.

(3.) Defendants 1 and 2 have filed separate written statements.