IMPORTANT POINT
The court established that ancestral property retains its coparcenary character despite partition, affirming the rights of legitimate heirs under Hindu law.

JUDGMENT :

M.A.Abdul Hakhim, J.

1. The above Regular Second Appeals arise from OS No.541/1987 of the Principal Munsiff’s Court Thiruvananthapuram. OS 541/1987 was a suit for partition. RSA No. 868/2017 arises from the Preliminary Decree dt 30.08.1994 in the suit. RSA No. 960/2015 arises from the Final Decree dt. 06.12.2008 in I.A No. 5512/2005 in the suit. Both the Appeals are filed by the legal heirs of the Original 3rd defendant.

2. The parties are referred according to their status before the Trial Court.

3. The plaintiffs 1 & 2 filed the suit against the defendants 1 to 5 with the averments to the effect that the plaintiffs & the 2nd defendant are the sons of the 1st defendant, the 5th defendant is the daughter of the 2nd defendant, the 4th defendant is the Second wife of the 1st defendant. The plaintiffs and defendants 1,2, 4 and 5 are Hindu Nadars governed by the Hindu Mitakshara law of succession. The Plaint A Schedule Property having an extent of 44 cents is a portion of a larger extent having an area of 3.2 Acres, which originally belonged to Kutty Nadar, grandfather of the 1st defendant. The said Kutty Nadar had two sons, namely, Madan Nadar and Velayudhan Nadar. The 1st defendant is the son of Velayudhan Nadar. The property of Kutty Nadar was Hindu coparcenary property of which the plaintiffs are members. As per Ext.A1 Partition Deed dt. 18.05.1123 ME, the Plaint A Schedule Property having an extent of 44 cents was allotted to the 1st defendant. The 1st defendant took the property as belonging to the branch which he represented. The plaintiffs and the 2nd defendant have got equal right over the plaint schedule property by birth along with the 1st defendant. The 1st defendant gifted 10 cents in the plaint A schedule property to the plaintiffs’ sister Vijayamma as per Ext.B8 dt 30.11.1961. Though the gift was made asserting the exclusive right by the 1st defendant the plaintiffs did not dispute the same since the 1st defendant did it in his capacity as the Manager of the family. The remaining property of 34 cents is in the plaint B schedule. As on the date of implementation of the Hindu Joint Family System Abolition Act there were four members in the coparcenary namely, the plaintiffs and the defendants 1 and 2. The 1st defendant had created some documents in respect of plaint B schedule property in favour of the defendants 3, 4 and 5 by asserting exclusive right with him. The said documents are not binding on the plaintiffs and their share in the plaint schedule property. The 1st defendant is entitled to alienate only to the extent of his ¼ share in the coparcenary property. The documents executed by the 1st defendant are null and void, and they are liable to be set aside. The prayer in the suit was for partition of the plaint B schedule property and to allot 2/4 share to the plaintiffs and to allot the share of the 1st defendant to the defendants 3,4, and 5 towards the properties alienated to them. Mesne profits @ Rs.500/- per annum was also claimed from the contesting defendants.

4. After the institution of the suit, the first defendant died on 06.05.1987. The additional defendants 6 to 8 were impleaded and the plaintiffs and the 2nd defendant were recorded as the legal heirs of the deceased 1st defendant. The additional 6th defendant is the wife, and the additional 7th & 8th defendants are the daughters of the 1st defendant.

5. Since 1/4 share of the 1st defendant in Plaint B Schedule Property devolved upon the plaintiffs, the 2nd defendant and additional defendants 6 to 8, the plaintiffs amended the prayer in the plaint for allotting 7/12 share to the plaintiff. A prayer to set aside all alienations created by the 1st defendant with respect to B schedule property beyond the extent of his ¼ share was also included. The additional 9th defendant was also impleaded as per order in IA No. 511/1991 as the alienee of a portion of plaint B Schedule property.

6. The 3rd defendant and the 4th defendant alone contested the suit.

7.