M VIJAYAKUMARI Vs. K DEVABALAN
LAWS(KER)-2003-7-40
HIGH COURT OF KERALA
Decided on July 17,2003

M.VIJAYAKUMARI Appellant
VERSUS
K.DEVABALAN Respondents

JUDGEMENT

- (1.) Defendants 1 and 2 are the appellants. Suit was instituted by the plaintiffs for declaration of title and for consequential reliefs.
(2.) Plaintiffs case can be briefly stated as follows: Plaintiffs, first defendant and Santhakumari are the children of fourth defendant. Plaint schedule property was obtained by Adichan Nadar, father of the fourth defendant, under partition deed of the year 1079. They are Hindu Nadars governed by Hindu Mitakshara Law. Second defendant is the husband of the first defendant. The property obtained by Adichan Nadar devolved on the fourth defendant and he was in possession of the same as Manager of the joint family. Plaintiffs obtained right over the properties of the joint family by their birth. On 13.3.1975 fourth defendant representing himself as the sole owner of the property, executed a gift deed in respect of the plaint schedule property in favour of defendants 1 and 2. According to the plaintiffs, properties are coparcenary properties and hence fourth defendant is not competent to execute any document. Consequently first defendant did not get possession of the property. Later fourth defendant cancelled the gift deed and plaintiffs are in possession of the property and getting income therefrom. Defendants 1 and 2 executed sale deed in favour of the third defendant. However, third defendant did not get any title to the property since he is not a bona fide purchaser. On the strength of the sale deed third defendant attempted to trespass upon the property. Suit was instituted stating that in case court finds that third defendant is in possession of the plaint schedule properties plaintiffs may be allowed to recover the same from him with mesne profits. They also prayed for partition and separate allotment of their share in the plaint schedule properties. 2. Defendants 1 and 2 in the written statement contended that gift deed was valid. According to them, plaintiffs and defendants are all Christians and not Hindus. Plaintiffs 2 to 4 are under the guardianship of the father of the fourth defendant and are residing with them. They are not under the guardianship of the first plaintiff. After the death of Adichan Nadar fourth defendant inherited his properties as his only son. He was in possession of the properties as the absolute owner and not as Manager of a joint family. Plaintiffs did not get any right over the plaint schedule property by their birth. It was also contended that parties are not Hindus governed by the Hindu Mitakshara Law. It was contended that gift given to a daughter at the time of her marriage is really in lieu of share of the daughter and as such it was quite valid under the Christian Succession Act. Third defendant also filed written statement supporting the contentions raised by defendants 1 and 2. It was stated by the third defendant that he obtained possession from defendants 1 and 2 under the sale deed taken by him and that he was in absolute possession of one acre and 25 cents out of the plaint schedule properties. In order to establish the case PW.1 was examined on the side of the plaintiffs and Exts.A1 to A18 were marked. On the side of the defendants D.Ws.1 to 6 were examined and Exts.B1 to B15 were produced and marked.
(3.) Trial Court after examining the oral and documentary evidence came to the conclusion that plaintiffs and the fourth defendant are not Hindus and that the plaint schedule property is the joint family property. It was also held that the gift deed dated 13.3.1975 is valid. Court also held that plaint schedule property cannot be taken as self acquisition of the defendants and that it is joint family property registered in the name of the fourth defendant for the benefit of the joint family. The court did not accept the argument of the counsel for the defendants that plaint schedule property is not joint family property and that it belongs to fourth defendant. After upholding that the gift deed was valid Trial Court dismissed the suit. Aggrieved by the same plaintiffs preferred appeal before this Court as A.S. No.52 of 1982. Learned Single Judge held that the marriage between the fourth defendant and Mariya Augustine is valid and that plaintiffs and fourth defendant are Hindus and that they have to be treated as members of coparcenary family. Fourth defendant was only a Manager or Kartha of the joint family and he had only restricted rights recognised by law in respect of disposal of the property by a kartha and manager of a Hindu undivided family. Learned Single Judge however concluded that there was no application of mind by the Trial Court on the question whether the gift exceeded the permissible limits. Learned Single Judge also found the question as to whether there was any compelling necessity to dispose of the joint family properties to raise further funds to gift the property to defendants 1 and 2 was also not considered by the Trial Court. In such circumstances learned Single Judge set aside the judgment and decree of the Trial Court and remitted the matter back to the Trial Court to consider the question whether gift made in favour of defendants 1 and 2 under Ext.B17 is a reasonable provision permitted under law. The appeal was disposed of accordingly. Defendants 1 and 2 are aggrieved by the judgment and decree of the learned Single Judge.;


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