A Karta under Mitakshara law cannot alienate joint family property via a Will; it is a family arrangement. Possession under a void document can lead to adverse possession if maintained for the requisite time.

JUDGMENT :

V. Lakshminarayanan, J.

The plaintiffs are the appellants. They assail the judgment and decree of the court of II Additional District and Sessions Judge cum Chief Judicial Magistrate, Dharmapuri at Krishnagiri in A.S.No.57 of 1989 dated 15.09.2000 in partly confirming the judgment and decree of the court of the Subordinate Judge at Dharmapuri in O.S.No.28 of 1989 dated 21.08.1989 and thereby dismissing their suit for declaration of title and for permanent injunction.

2. The plaintiffs are the nephews of the defendants. Originally, the suit was presented before the learned Subordinate Judge at Krishnagiri in O.S.No.66 of 1984. Subsequently, the same was transferred to the file of the learned Subordinate Judge at Dharmapuri and renumbered as O.S.No.28 of 1989.

3. For the sake of convenience, the parties shall be referred to as per their ranks in the suit.

Case according to the plaint

4. The plaintiffs pleaded that the suit schedule properties, amongst other properties, belonged to one Marula Siddhappa Chettiar. He was the paternal grandfather of the plaintiffs. The said Marula Siddhappa Chettiar had four sons, namely,

(i) M.Basavaraj;

(ii) M.Sadasivam;

(iii) M.Duraiswami; and

(iv) M.Sidhanandam.

5. The plaintiffs are the sons of Basavaraj. The plaintiffs claimed that Marula Siddhappa Chettiar executed a “WILL” dated 12.08.1948 in his sound and disposing state of mind. By the said “WILL”, he bequeathed his properties at Dharmapuri to his four sons. The same was registered. The suit schedule mentioned property and the other properties had been allotted to the plaintiffs’ father, M.Basavaraj. He was granted a life estate. The plaintiffs too, were granted life estates and the vested remainder was given to the grandsons of M.Basavaraj.

6. Marula Siddhappa Chettiar died in the year 1949. Post his death, M.Basavaraj took possession of the suit property and other properties that had been bequeathed to him. M.Basavaraj was in possession and enjoyment of the property till his death in the year 1958. As M.Basavaraj had only a life interest in the suit property, he had no power to alienate the same. Even if he had made any alienation, the same would be invalid and not binding on the plaintiffs. The plaintiffs claimed that they are entitled to the suit property in terms of the “WILL” dated 12.08.1948 and that, they have been in possession and enjoyment of the same. The plaintiffs claimed though they, inter se, partitioned their other properties, they kept the suit property in common for their enjoyment.

7. The plaintiffs asserted that they permitted the third defendant to put up a bunk shop in the suit property about 25 years ago. The possession of the third defendant, is for and on behalf of, the plaintiffs. The third defendant has been paying taxes to the municipality on behalf of the plaintiffs and hence, for a complete adjudication of the dispute, the third defendant was made a party to the suit formally.

8. The plaintiffs stated that the defendants 1 and 2 have no right, title, or interest over the suit property and they are not in possession of the same. The first defendant, at the instigation of the second defendant, started claiming that he was entitled to the suit property and thereby, denying the plaintiffs’ title to the same.

9. The cause of action for the suit arose on 25.04.1984, when the first defendant attempted to take forcible possession of the suit property. In this illegal endeavour, he was assisted by his sons. The plaintiffs, with the help of the hird defendant and others,