(Appeal under Section 100 of CPC against the decree in A.S. No.109 of 1988 dated 30/07/1996 on the file of the Court of the 1st Additional District and Sessions Judge, Krishna at Machilipatnam preferred against the decree in O.S. No.552 of 82 dated 31/08/1988 on the file of the Court of the 1st Additional District Munsif Machilipatnam Krishna District.)

Immovable property bearing house No.578 with appurtenant land of 521 square yards in Ward No.7 (ward No.30 new) situated at Malakapatnam of Machilipatnam in Krishna District was the ancestral property of one Subbamma, W/o. Nathaniel. She executed registered gift deed, dated 20.04.1965 in favour of her son, Nadakuduru Raja Rao, S/o. Nathaniel. He had three sons, namely, Prabhakara Rao, Vijaya Kumar and Kamala Kumar. Along with his two sons except Kamala Kumar, Raja Rao executed registered sale deed, dated 12.02.1979 in favour of one Brahmaiah. After his death, his wife, Victoria sold the property to Jujjavarapu Yesu Rao (plaintiff) under registered sale deed, dated 16.08.1982 duly delivering possession to him. On 30.12.1982, Kamala Kumar, third son of Raja Rao, S/o. Nathaniel, filed O.S.No.552 of 1982 for partition and separate possession of suit schedule property. He arrayed his father, brothers and Jujjavarapu Yesu Rao as defendants to the suit. The trial Court dismissed the suit inter alia on the ground that suit schedule property is not joint family property. Against the Judgment of the I Additional District Munsif, Machilipatnam, in O.S.No.552 of 1982, dated 31.08.1988, plaintiff filed Appeal Suit No.109 of 1988 on the file of the Court of I Additional District Judge, Machilipatnam, who reversed judgment and decree of the trial Court directing partition of suit schedule property into four equal shares and allotting one-fourth share to the plaintiff. The present second appeal is against the reversing judgment of first appellate Court.

The Second appeal was admitted on 09.07.1997. This Court framed the following question of law.

On the basis of admitted fact on the side of the plaintiffs that they are Christians, are the Courts below right in applying Hindu law for considering the suit filed by plaintiff, more so, when the defendants denied in written statement that Hindu law applies to the facts of this case?

The question of law as framed above was due to the pleadings of the plaintiff in the suit. He described defendants i.e., his father and two brothers as Christians. He also admitted in the plaint that, “plaintiff and defendants 1 to 3 are Christians by religious faith …”. Learned counsel for the appellant/fourth defendant and learned counsel for first respondent/plaintiff the second appeal insofar as third respondent is concerned was dismissed for default on 14.03.2001. Though notices were served on respondents 2 and 4 (defendants 1 and 3 respectively), none appears for them. Addressed that arguments on the question of law framed by this Court. Appellant vehemently contends that when admittedly the plaintiff and defendants 1 to 3 are Christians, Hindu law concept of joint family and right to partition are not applicable to them. Secondly, he submits that as per Section 2(1)(c) read with Section 2(3) of Hindu Succession Act, 1956 (hereafter called, Succession Act), Christians, Jews, Muslims and Parsis by religion are excluded from the applicability of Succession Act, and therefore, the lower Court grossly erred in decreeing partition. He also relied on the registered documents, wherein the parties described themselves as belonging to Christian faith.

Learned counsel for first respondent/plaintiff submits that in the absence of any acceptable evidence to show that the plaintiff and defendants 1 to 3 baptized Christianity and are being followed Christian customs, they cannot be treated as Christians. A stray pleading in the plaint would not bar the plaintiff to seek remedy of partition. He submits that forefathers of first defendant were all Hindus leading a Hindu wa