NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3227 of 2006
THEIRY SANTHANAMAL .....APPELLANT(S)
VERSUS
VISWANATHAN & ORS.
.....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
The property with which this appeal is concerned is
described in the suit as ‘B’ Schedule Property (henceforth,
referred to as the ‘suit property’). The said suit property originally
belonged to Mr. Mariasusai Mudaliar who was grandfather of
respondent nos. 3 to 5 and father of Oubegaranadin (since
deceased). Mariasusai Mudaliar died intestate on October 23,
1953 leaving behind two sons viz. Oubegaranadin and Simon.
2) In 1959, the suit property and other properties which were
inherited by the two sons of Mr. Mariasusai Mudaliar, came to be
partitioned between them by a registered deed of partition dated
Civil Appeal No. 3227 of 2017 Page 1 of 23
March 23, 1959. Under the said deed of partition,
Oubegaranadin was allotted certain properties.
3) After the partition between the two brothers, as aforesaid, some
difficulties in the enjoyment of the allotted properties arose which
necessitated the two brothers to exchange between themselves
certain properties. Under the Exchange Agreement dated March
15, 1971, the suit property came to be allotted to Oubegaranadi.
4) On getting the suit property under the said exchange and in
respect of the other properties got under the partition dated
March 23, 1959, Oubegaranadin and his sons, namely,
respondent nos. 3 to 5 entered into a Deed of Partition dated
March 15, 1971. Under the said deed, respondent nos. 3 to 5
were allotted larger share jointly, since they were minors, and to
expend money towards education and maintenance. Further, it
was also recited that respondent nos. 3 to 5 would take the suit
property as allotted to them, absolutely.
5) Nearly after three years from the date of having entered into a
partition with his sons, Oubegaranadin filed a suit on February 02,
1974 (being O.S. No. 70 of 1974) against respondent nos. 3 to 5
and another, on the file of the learned Additional Subordinate
Judge, Pondicherry (now known as ‘Puducherry’), praying that he
be declared the absolute owner of the suit property and the
Civil Appeal No. 3227 of 2017 Page 2 of 23
Partition Deed dated March 15, 1971 be nullified. Respondent
Nos. 3 to 5 were minors when the suit was instituted and they
were sought to be represented through their mother and
guardian, respondent no. 6 herein. Based on the statement of
the guardian (respondent no. 6) who submitted to the decree
thereupon, the learned Additional Subordinate Judge,
Puducherry, decreed the suit as prayed for, vide judgment and
decree dated June 24, 1974.
6) Oubegaranadin claiming himself to be the absolute owner of the
suit property, sold of the portions thereof, namely, Nos. 76C and
76D at Mahatma Gandhi Road, Puducherry to respondent nos. 1
and 2 under sale deed dated March 29, 1980.
7) On the other hand, respondent no. 3, on the strength of having
allotted the suit property along with his two younger brothers
(respondent nos. 4 and 5) under the Partition Deed dated March
15, 1971, sold his 1/3rd share in the suit property to the appellant
herein vide registered Sale Deed dated December 11, 1980.
Thereafter, on December 11, 1980, respondent no. 4 also sold his
1/3rd share in the suit property to the appellant on the basis of the
joint allotment of the suit property under the deed of partition
dated March 15, 1971. Even respondent no. 5, while he was still
minor, executed a sale deed in favour of the appellant, acting
Civil Appeal No. 3227 of 2017 Page 3 of 23
through respondent no. 6 as his guardian in respect of his 1/3rd
share in the suit property.
8) From the facts noted uptill now, it gets revealed that in respect of
the property which had fallen in the share of Oubegaranadin,
partition was effected between him and his sons (respondent nos.
3 to 5) vide Partition Deed dated March 15, 1971. However, in the
suit for declaration filed by him thereafter, he got the decree vide
which the said partition suit was nullified. Thereafter, claiming
himself to be the complete and exclusive owner of the property,
Oubegaranadin sold part of those properties (Nos. 76C and 76D,
Mahatma Gandhi Road, Puducherry) to respondent nos. 1 and 2
therein. On the other hand, respondent nos. 3 to 5, still claiming
themselves to be the owner of the properties, on the basis
Partition Deed dated March 15, 1971, sold their respective
portions to the appellant herein. Thus, the appellant as well as
respondent nos. 1 and 2 have purchased the same suit property.
Which sale is to be recognised is the question. The answer to
this now hinges upon the validity of the decree dated June 24,
1974 vide which the partition deed dated March 15, 1971 was
nullified and Oubegaranadin was declared as the absolute owner
of the suit property. However, as would be noticed hereinafter,
validity of the Partition Deed dated March 15, 1971 itself is in
Civil Appeal No. 3227 of 2017 Page 4 of 23
issue.
9) Proceeding further to complete the factual narration, it so
happened that respondent nos. 3 to 5 instituted a suit, as indigent
persons on January 03, 1983 (O.P. No. 1 of 1983) before the
Principal Subordinate Judge, Puducherry against their father
Oubegaranadin, their mother (Defendant No. 6) as well as the
respondent nos. 1 and 2 to whom Oubegaranadin had sold part
of the property. In this suit, respondent nos. 6 to 9 as well as
appellant, Selvanathan (since deceased whose legal heirs are
respondent nos. 10 to 13 herein) and one Mr. M.B. Vaithilingam
(since deceased whose legal heirs are respondent nos. 14 to 16
herein), were also impleaded as defendants. In this suit,
respondent nos. 3 to 5 sought decree for declaration of title in
respect of not only the suit property but also other properties.
They also sought declaration to the effect that decree dated June
24, 1974 passed in the favour of their father was not binding and
be set aside. As a consequence, they also sought declaration
that sale deed dated March 29, 1980 executed by their father in
favour of respondent nos. 1 and 2 be set aside. They went to the
extent of seeking cancellation of three sale deeds dated
December 11, 1980, December 11, 1980 and April 29, 1981
executed by them in favour of appellant herein.
Civil Appeal No. 3227 of 2017 Page 5 of 23
10) In the plaint it was averred by respondent nos. 3 to 5 that
they were children of Oubegaranadin and respondent no. 6
herein and their succession was governed by French Civil Law.
They also traced the history of events (which have already been
noted above). It was contended that as far as suit for declaration,
i.e. O.S. No. 70 of 1974 filed by Oubegaranadin is concerned, he
had obtained the decree therein by fraudulent misrepresentation
of facts and that their mother (respondent no. 6), who
represented them in the said suit, was coerced to submit to the
decree and, therefore, such a decree was not binding on them.
Likewise, insofar as three sale deeds executed by them in favour
of the appellant are concerned, it was alleged that their father
coerced them to sell the property to the appellant which were
voidable.
11) Respondent nos. 1 and 2 resisted the suit by contending
that decree passed in O.S. No. 70 of 1974 was valid decree
which was not obtained by fraud or misrepresentation and since
Oubegaranadin was the absolute owner of the properties in
question he had right to sell the same and, therefore, sale deed
executed in their favour in respect of property nos. 76C and 76D
was valid. The appellant also resisted the suit by contending that
he had purchased the property from respondent nos. 3 to 5 for a
Civil Appeal No. 3227 of 2017 Page 6 of 23
valuable consideration and had also paid the full consideration.
After purchasing the same he had leased out the property and
was collecting rents. The appellant, therefore, pleaded that sale
deed in his favour was valid and sale deed in favour of
respondent nos. 1 and 2 by Oubegaranadin was illegal.
12) On the basis of pleadings, issues were drawn by the trial
court. Parties led their evidence and after hearing the arguments,
the trial court passed the judgment and decree dated January 17,
1986 holding that decree passed in O.S. No. 70 of 1974 was valid
since no prejudice had been caused to the interest of the then
minors, i.e., respondent nos. 3 to 5 herein. He also held that
three sale deeds executed by respondent nos. 3 to 5 were not
under coercion but were executed to meet the family debts and
out of necessity. Since, respondent nos. 3 to 5 have been left
without any property, the learned Subordinate Judge, opined that
an additional 10% of the sale consideration for the suit property
and 5% of the sale consideration for the land be paid over by the
appellant and respondent nos. 1 and 2 to respondent nos. 3 to 5
and on the said basis, quantified the sum to be paid.
13) Aggrieved by the partial decree of suit, as full relief prayed
for not having been granted, respondent nos. 3 to 5 preferred the
appeal (A.S. No. 1052 of 1986) on the file of the High Court of
Civil Appeal No. 3227 of 2017 Page 7 of 23
Madras. Respondent nos. 1 and 2 preferred cross-objection
insofar as the sale consideration in respect of the land (it is not
the subject matter of the present appeal). Insofar as the direction
to pay an additional 10% of the sale consideration for the building
to respondent nos. 3 to 5, the appellant preferred an independent
appeal in A.S. No. 335 of 1987 in the High Court of Madras.
14) The learned Single Judge of the High Court vide judgment
dated March 19, 1988 reversed the judgment of the Trial Court on
certain counts and allowed A.S. Nos. 1052 of 1986 and A.S. No.
335 of 1987. Holding that respondent nos. 3 to 5 were the
absolute owners and Oubergaranadin had no right over the same
property, it was concluded that the judgment and decree passed
in O.S. No. 70 of 1974 was fraudulent and not binding on
respondent nos. 3 to 5 and that respondent nos. 3 to 5 were
entitled to be declared owners of the suit property subject to sale
deeds executed by them. Though, the learned Single Judge held
that in view of the fact that the appeal preferred by respondent
nos. 3 to 5 are allowed, respondent nos. 1 and 2 are not liable to
pay any compensation and, ultimately, dismissed the
cross-objection.
15) Aggrieved by the said judgment, respondent nos. 1 and 2
filed LPA Nos. 113 to 115 of 1999 before the Division Bench of the
Civil Appeal No. 3227 of 2017 Page 8 of 23
High Court. These appeals are allowed by the Division Bench
vide impugned judgment dated March 04, 2004 in the following
terms:
“20. In view of the foregoing discussion, the judgment
and decree allowing the appeal in A.S. No. 1052/86 is
set aside. Equally the dismissal of Cross Objection
filed by the Appellant regarding the levy of
compensation cannot be sustained, as the Learned
Judge himself found that such a decree for damage by
the trial court cannot be sustain. Though the
appellants have challenged the judgment and decree
made in A.S. No. 335/1987 filed by the 10th defendant,
the appellants are not aggrieved persons and hence
we are inclined to dismiss the appeal in L.P.A. No.
114/1999. Accordingly, L.P.A. Nos. 113 and 115 of
1999 are allowed and L.P.A. No. 114/1999 is
dismissed. No costs.”
16) The High Court has held that by Regulation dated January
06, 1817, the French Code was applicable and by Regulation
dated April 24, 1880, Civil Procedure Code was made applicable
to Puducherry. As per the said French Code, customary Hindu
Law was applicable. Applying that law, the High Court has
concluded that since Oubegaranadin was the absolute owner of
the said property, as per Hindu law sons cannot seek partition in
the property of their father. Therefore, the Partition Deed dated
March 15, 1971 was not a valid instrument and the findings of the
Single Judge that Oubegaranadin had lost his right by virtue of
partition deed is contrary to law.
Civil Appeal No. 3227 of 2017 Page 9 of 23
17) It may be mentioned at this stage that the entire suit
property belonged to Oubegaranadin absolutely, which fell in his
share after partition between him and his brother Simon.
However, Oubegaranadin partitioned the said property by
executing Deed of Partition dated March 15, 1971. Under this
partition deed, some of the properties were given by
Oubegaranadin to his sons, namely, respondent Nos. 3 to 5.
Respondent Nos. 3 to 5, therefore, claim their right on the basis
of this partition deed. No doubt, Oubegaranadin got that partition
deed cancelled by filing a suit in this behalf ad obtaining decree
therein. However, as per the High Court, the first question was as
to whether respondent Nos. 3 to 5 were entitled to claim any right
under the partition deed dated March 15, 1971.
18) The High Court noted that the family of Oubegaranadin, and
his children i.e. respondent Nos. 3 to 5, belong to Christianity in
religion. The High Court further noted that by Regulation dated
January 06, 1817, the French Code to the exception of the Code
of Criminal Procedure, containing the totality of the substantive
and objective laws of France, including the personal law, have
been made applicable to Puducherry. According to Section 3 of
the said Regulation, Indians, whether Hindus, Muslims or
Christians would continue to be governed by usage and customs
Civil Appeal No. 3227 of 2017 Page 10 of 23
of their respective castes. In that way, French law has become
the law of the land though in matter of personal law it was
applicable only to settlers and their descendants. The Regulation
dated April 25, 1880 made the provisions of Code of Civil
Procedure, 1908 (CPC) relating to civil status, namely, the
declaration of births and deaths of marriage applicable to
Puducherry territory, but a saving clause left it open to Indians to
marry as per their customs. The said saving clause did not apply
to Christians who were from that time governed by French law in
respect of marriage and divorce but in respect of all other matters
pertaining to personal law. Christians continue to be governed by
the customary Hindu Law.
19) The High Court also pointed out that though Hindu
Succession Act, 1956 was made applicable in Puducherry, insofar
as Christians are concerned, they continued to be governed by
customary law, inasmuch as, Hindu Succession Act was not
applicable to Christians by virtue of Section 2(1)(c) thereof which
made the Act applicable only to Hindus. Therefore, Christians in
Puducherry continued to be governed by customary law, i.e.
customary Hindu law that was prevalent in Puducherry as the law
of succession. Thus, rights of the parties were to be determined
on the basis of the said Hindu customary law. Taking extensive
Civil Appeal No. 3227 of 2017 Page 11 of 23
note of this customary Hindu Law in Puducherry, as per various
decisions as well as Book on Hindu Laws by French writer J.
Sanner, the High Court has come to the conclusion that during
the lifetime of the father, sons cannot ask for partition of the
ancestral property or property of the father. It further held that still
the father is entitled to distribute or give away his properties to his
children. However, according to the High Court, it could not be
done in the manner it was done in the instant case and Partition
Deed dated March 15, 1971 was not a valid document.
20) Before proceeding further, it would be appropriate to
mention as to how different parties were described in the original
suit and their respective position in these proceedings:
Name In Original Suit Before this Court
Oubegaranadin Defendant No.1 Since deceased
Thierysanthamal Defendant No.10 Petitioner
Viswanathan Defendant No.4 Respondent No.1
A Andal Defendant No.5 Respondent No.2
Savarimouthurayan Plaintiff No. 1 Respondent No.3
John Kennedy Plaintiff No. 2 Respondent No.4
Robert Kennedy Plaintiff No. 3 Respondent No.5
Marie Rosalie Defendant No.2 Respondent No.6
Kumar Manjini Defendant No.3 Respondent No.7
Babu Defendant No.8 Respondent No.8
RathinavelMudaliar Defendant No.9 Respondent No.9
Mrs Elizabeth Defendant No.6 Respondent No.10
Civil Appeal No. 3227 of 2017 Page 12 of 23
(Selvanthan)
Joseph Elango
Defendant No.6
(Selvanthan)
Respondent No.11
Albert
Defendant No.6
(Selvanthan)
Respondent No.12
Francis
Defendant No.6
(Selvanthan)
Respondent No.13
Rukmaniammal
Defendant No.7
(M.B. Vaithilingam)
Respondent No.14
21) Mr. K. Ramamoorthy, learned senior counsel appearing for
the appellants, advanced the following propositions:
(a) The partition deed dated March 15, 1971 is valid in law.
(b) It was submitted that the appellant was not disputing the
legal position that as per customary Hindu law during the
lifetime of their father, sons cannot ask for partition. His
submission, however, was that it is not respondent Nos. 3 to 5
(sons) who asked for partition. On the contrary,
Oubegaranadin himself executed the partition deed.
Therefore, this partition deed was valid in law. The High Court
wrongly applied French Code and Hindu Succession Act had
already come into force in Puducherry.
(c) The decree in OS No. 70/1974 is not binding on the
plaintiffs as Order XXXII Rule 7 CPC had not been followed.
Civil Appeal No. 3227 of 2017 Page 13 of 23
Submission in this behalf was that sub-rule 1A was
added to Rule 7 of Order XXXII by the Act of 1976. In Tamil
Nadu, earlier State of Madras (Puducherry), amendment to
this effect was inserted way back in the year 1910, which is
in the following form:
“(1A) Where an application is made to the Court for
leave to enter into an agreement or compromise or for
withdrawal of a suit in pursuance of a compromise or
for taking any other action on behalf of a minor or
other person under disability and such minor or other
person under disability is represented by counsel or
pleader, the counsel or pleader shall file in Court with
the application a certificate to the effect that the
agreement or compromise or action proposed is in his
opinion for the benefit of the minor or other person
under which a minor or other person under disability is
a party shall recite the sanction of the Court thereto
and shall set out the terms of the compromise as in
Form No. 24 in Appendix D to this Schedule.” (Dis No.
1647 of 1910)”
On the basis of the above, submission was that the
judgment and decree in OS No. 70 of 1974 was passed
without following the procedure contained in Order XXXII
Rule 7 CPC and, therefore, not valid in law. According to
the learned senior counsel, the decree in the said suit was a
consent decree and, therefore, leave of the Court should
have been obtained, as required under Order XXXII Rule
7(1A) CPC.
(d) The mortgage deed dated October 22, 1979 A10 by
Defendant Nos. 1 to 4 and 5 is not valid as Defendant No.1
Civil Appeal No. 3227 of 2017 Page 14 of 23
has no title;
(e) The sale deed dated 1980 by Defendant No.1 in favour of
Defendant Nos. 4 and 5 is not valid.
(f) The sale deeds by plaintiffs to Defendant No.10 are valid
(g) In view of the fact that Defendant No.4 and Defendant No.5
are barred by the principles of res judicata, the findings of the
Single Judge cannot be challenged by them. He also cited the
following judgments in support of the submission predicated on
res judicata: Badri Naraya Singh v. Kamdeo Prasad Singh
& Anr.1
; Lonankutty v. Thomman & Anr.2
; Narayana Prabhu
Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu
(Dead) By LRs.3
; and Sri Gangai Vinayagar Temple & Anr. v.
Meenakshi Ammal & Ors.4
22) Refuting the aforesaid submissions, argument advanced by
learned counsel for respondent Nos. 1 and 2 was that since the
customary Hindu law in Puducherry applicable to the parties do
not recognise any entitlement or right of the children to claim and,
therefore, demand any interest or share in the property, no
partition can legally take place between the father and
respondent Nos. 3 to 5. Any partition, even if effected, would,
1 AIR 1962 SC 338
2 (1976) 3 SCC 528
3 (1977) 2 SCC 181
4 (2015) 3 SCC 624
Civil Appeal No. 3227 of 2017 Page 15 of 23
therefore, be inconsistent with the law. The father was, therefore,
entitled to seek a declaration that he continued to be the absolute
owner of the properties in question. The father sought such a
declaration and obtained it. He submitted that in the absence of
any right or any entitlement in favour of the said respondents
under the customary Hindu law, the partition cannot create a right
in their favour more particularly when the partition was set at
naught at the instance of the father. If at all the partition was the
product of the absolute right of the father, he had the authority to
recall it. This he did through judicial process. In the aforesaid
circumstances, the transfer or alienation of property effected by
the father towards the family necessity would stand on a higher
footing compared to the alienation made by the abovesaid
respondents without any authority whatsoever.
23) He also submitted that if only respondent Nos. 3 to 5 have
any right to demand a share in the property in question during the
lifetime of father, the question of applicability of Order XXXII Rule
7 CPC will arise. In the absence of any such right, no claim can
be founded only on the basis of alleged procedural impropriety.
According to him, following salient features of the case were
material to decide the issue:
(a) This is a case admittedly governed by the customary Hindu
Civil Appeal No. 3227 of 2017 Page 16 of 23
law as was obtaining in Puducherry.
(b) Under the customary Hindu Law in Puducherry (which
corresponds in some respects to the position obtaining in the
Dayabagha School), the father is the absolute owner of the
property in his hand. The sons do not derive any right in the
family property by reason of their birth which is different from
the position in the Mitakshara School. In other words, the sons
rights arise on the demise of the father and not prior thereto.
Consequently, anything happening during the lifetime of the
father does not confer any right or interest in them.
(c) The father has, thus, an unfettered power of disposition of
the property in his hands. The sons do not have the right to
demand partition or to ask for any share in the family property
during the father’s lifetime. They do not inherit any interest or
right during the lifetime of the father. Consequently, during
their lifetime, they have no interest in any estate which can be
defended or protected.
(d) In the above context, the principle of conflict of interest or
adverse interest dealt with in Order XXXII Rules 3A and Rule 7
CPC relevant in other schools of law would not be relevant in
proceedings involving minors in the Union Territory of
Puducherry, particularly concerning cases involving the
Civil Appeal No. 3227 of 2017 Page 17 of 23
application of customary Hindu Law.
(e) The plaintiffs have not placed reliance on the provisions of
the French Civil Code in support of the argument that insofar
as the partition deed dated March 15, 1971 is concerned, it
complied with mandatory formalities of the Code and the
Division Bench rightly rejected arguments in this regard.
24) Having regard to the respective submissions, it is clear that
first and foremost it needs to be determined as to whether
partition deed dated March 15, 1971 is valid in law, inasmuch as,
this issue will have bearing on the remaining case.
25) As already pointed out above, the foremost question
pertains to the validity of the Partition Deed dated March 15, 1971
and other arguments would arise for consideration only if the
appellant is able to cross this hurdle. At this stage, it would be
pertinent to point out that even after holding that during the
lifetime of their father sons cannot claim partition of the properties
as per the said customary Hindu Law, the High Court has
accepted the fact that the father is still enabled to distribute and
partition his property between the children and the descendants.
As per the High Court, this can be done either by instruments
inter vivos or by Will and further that the settlement or Will must
comply with the formalities, conditions and rules laid down for
Civil Appeal No. 3227 of 2017 Page 18 of 23
donations inter vivos and Wills and the partitions made by
donation inter vivos must include only those properties which the
donor then possesses. In respect of this assertion, the High
Court has referred to Article Nos. 1075 and 1076 of the French
Code. From the aforesaid, the High Court has observed that the
father can distribute or partition the property between the children
and the descendants only by gift or family settlement between the
parties themselves. According to it, the plaintiffs had not set up
their claim on that basis as they did not rely on Articles 1075,
1076 or 1077 of the French Code in respect of their claim.
26) We may reproduce Articles 931, 1075, 1076 and 1077 of
the French Code at this juncture:
“931. Every instrument containing a donation inter
vivos shall be executed before notaries in the ordinary
from the contracts, and the original shall remain with
them; otherwise such instruments shall be void. Civ.
C. 894, 948, 949, 1339, 1340.
1075. Fathers and mothers and other ascendants may
make a distribution and division of their property
between their children and descendants Civ.C. 745,
914, 968, 1076 et seq.
1076. These divisions may be made by donations
or by wills in accordance with the formalities
conditions and rules laid down for donations inter
vivos and wills.
1077. If all the property which are ascendants leaves
at the time of his death has not been included in the
division, such property as has not been included in the
division, such property as has not been included shall
be divided according to law. Civ. C. 723 et seq., 815
Civil Appeal No. 3227 of 2017 Page 19 of 23
et seq., 887 et. seq.”
27) Questioning the aforesaid approach of the High Court, the
submission of the learned senior counsel for the appellant was
that the High Court committed error in deciding the issue by
applying the French Code, which was not applicable in the instant
case. As per him, the Hindu Succession Act was made
applicable to the territory of Puducherry in the year 1963 and,
therefore, relationship of the parties was governed as per the said
Succession Act and not the French Code.
28) The aforesaid argument is misconceived for more than one
reason. First of all, the argument ignores that Oubegaranadin
and his sons (respondent Nos. 3 to 5) are Christian by religion.
Therefore, Hindu Succession Act would not govern, even if it has
been enforced in the territory of Puducherry in the year 1963.
The High Court has dealt with this aspect in detail in its judgment,
as pointed out above, and has come to the conclusion that insofar
as Christians are concerned, old Customary Law continue to
apply. No attempt was made by the learned senior counsel for
the appellant to dislodge the same. Even otherwise, it is the
Customary Hindu Law which has been applied to decide the case
which approach is perfectly justified.
29) We also find that the plea to the effect that Hindu
Civil Appeal No. 3227 of 2017 Page 20 of 23
Succession Act to be enforced in the Union Territory of
Puducherry w.e.f. 1963 and, therefore, French Code was not
applicable thereafter, has taken for the first time in this Court that
too during the arguments. Interestingly, even in the Special
Leave Petition, it is accepted that in the plaint filed by respondent
Nos. 3 to 5, it was specifically mentioned that they were governed
by French Civil Law. The learned Single Judge while deciding
appeals filed by the appellant herein as well as respondent Nos. 3
to 5 (plaintiffs) in the suit have also dealt with the matter in the
light of French Code. Even if it is assumed that Oubegaranadin
and his sons are governed by the Hindu Succession Act, this Act
has no applicability to the transaction in question. The said Act
governs the succession of the property when a Hindu dies
interstate. The manner in which his properties would devolve on
his successors is laid down in the scheme of the said Act. Here,
the plaintiffs did not claim (nor could they claim) that they became
owner of the property by way of succession as per the provisions
of Hindu Succession Act. On the contrary, they claimed right in
the property on the basis of Partition Deed dated March 15, 1971
which was executed by their father, namely, Oubegaranadin
during his life time.
30) Therefore, the main issue is as to whether such a partition
Civil Appeal No. 3227 of 2017 Page 21 of 23
deed could be executed by Oubegaranadin in respect of the
properties of which he was the absolute owner. It is to be borne
in mind that the properties in question had fallen in the share of
Oubegaranadin on the basis of partition deed dated March 23,
1959 between Oubegaranadin and his brothers. As on that date,
French Code governed the field as per which customary Hindu
Law applies. It is not disputed that Oubegaranadin had become
the absolute owner of the property in question. Therefore, the
moot question is as to whether he could give away portions of
these properties to his sons by entering into a partition deed like
the one he executed on March 15, 1971? Even if French Code is
not applied, the aforesaid question cannot be answered with
reference to the provisions of the Hindu Succession Act. Partition
Deed can be entered into between the parties who are joint
owners of the property. In case the father, namely,
Oubegaranadin herein wanted to give property to his sons, of
which he was absolute owner, it could be done by will or by
means of gift deed/donation etc. The High Court was, therefore,
right in observing that such a partition deed has to be construed
either a gift deed or family settlement. However, the claim of the
plaintiffs was not on that basis. It was not stated anywhere as to
whether necessary formalities, conditions or rules laid down for
Civil Appeal No. 3227 of 2017 Page 22 of 23
donation inter vivos or gift so as to enforce said document were
complied with in the absence of any pleadings, obviously no
evidence was produced to this effect.
31) We, therefore, for our aforesaid reasons, agree with the
conclusions arrived at by the High Court in the impugned
judgment. As a result, this appeal is dismissed.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
NEW DELHI;
JANUARY 18, 2018.
Civil Appeal No. 3227 of 2017 Page 23 of 23
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3227 of 2006
THEIRY SANTHANAMAL .....APPELLANT(S)
VERSUS
VISWANATHAN & ORS.
.....RESPONDENT(S)
J U D G M E N T
A.K. SIKRI, J.
The property with which this appeal is concerned is
described in the suit as ‘B’ Schedule Property (henceforth,
referred to as the ‘suit property’). The said suit property originally
belonged to Mr. Mariasusai Mudaliar who was grandfather of
respondent nos. 3 to 5 and father of Oubegaranadin (since
deceased). Mariasusai Mudaliar died intestate on October 23,
1953 leaving behind two sons viz. Oubegaranadin and Simon.
2) In 1959, the suit property and other properties which were
inherited by the two sons of Mr. Mariasusai Mudaliar, came to be
partitioned between them by a registered deed of partition dated
Civil Appeal No. 3227 of 2017 Page 1 of 23
March 23, 1959. Under the said deed of partition,
Oubegaranadin was allotted certain properties.
3) After the partition between the two brothers, as aforesaid, some
difficulties in the enjoyment of the allotted properties arose which
necessitated the two brothers to exchange between themselves
certain properties. Under the Exchange Agreement dated March
15, 1971, the suit property came to be allotted to Oubegaranadi.
4) On getting the suit property under the said exchange and in
respect of the other properties got under the partition dated
March 23, 1959, Oubegaranadin and his sons, namely,
respondent nos. 3 to 5 entered into a Deed of Partition dated
March 15, 1971. Under the said deed, respondent nos. 3 to 5
were allotted larger share jointly, since they were minors, and to
expend money towards education and maintenance. Further, it
was also recited that respondent nos. 3 to 5 would take the suit
property as allotted to them, absolutely.
5) Nearly after three years from the date of having entered into a
partition with his sons, Oubegaranadin filed a suit on February 02,
1974 (being O.S. No. 70 of 1974) against respondent nos. 3 to 5
and another, on the file of the learned Additional Subordinate
Judge, Pondicherry (now known as ‘Puducherry’), praying that he
be declared the absolute owner of the suit property and the
Civil Appeal No. 3227 of 2017 Page 2 of 23
Partition Deed dated March 15, 1971 be nullified. Respondent
Nos. 3 to 5 were minors when the suit was instituted and they
were sought to be represented through their mother and
guardian, respondent no. 6 herein. Based on the statement of
the guardian (respondent no. 6) who submitted to the decree
thereupon, the learned Additional Subordinate Judge,
Puducherry, decreed the suit as prayed for, vide judgment and
decree dated June 24, 1974.
6) Oubegaranadin claiming himself to be the absolute owner of the
suit property, sold of the portions thereof, namely, Nos. 76C and
76D at Mahatma Gandhi Road, Puducherry to respondent nos. 1
and 2 under sale deed dated March 29, 1980.
7) On the other hand, respondent no. 3, on the strength of having
allotted the suit property along with his two younger brothers
(respondent nos. 4 and 5) under the Partition Deed dated March
15, 1971, sold his 1/3rd share in the suit property to the appellant
herein vide registered Sale Deed dated December 11, 1980.
Thereafter, on December 11, 1980, respondent no. 4 also sold his
1/3rd share in the suit property to the appellant on the basis of the
joint allotment of the suit property under the deed of partition
dated March 15, 1971. Even respondent no. 5, while he was still
minor, executed a sale deed in favour of the appellant, acting
Civil Appeal No. 3227 of 2017 Page 3 of 23
through respondent no. 6 as his guardian in respect of his 1/3rd
share in the suit property.
8) From the facts noted uptill now, it gets revealed that in respect of
the property which had fallen in the share of Oubegaranadin,
partition was effected between him and his sons (respondent nos.
3 to 5) vide Partition Deed dated March 15, 1971. However, in the
suit for declaration filed by him thereafter, he got the decree vide
which the said partition suit was nullified. Thereafter, claiming
himself to be the complete and exclusive owner of the property,
Oubegaranadin sold part of those properties (Nos. 76C and 76D,
Mahatma Gandhi Road, Puducherry) to respondent nos. 1 and 2
therein. On the other hand, respondent nos. 3 to 5, still claiming
themselves to be the owner of the properties, on the basis
Partition Deed dated March 15, 1971, sold their respective
portions to the appellant herein. Thus, the appellant as well as
respondent nos. 1 and 2 have purchased the same suit property.
Which sale is to be recognised is the question. The answer to
this now hinges upon the validity of the decree dated June 24,
1974 vide which the partition deed dated March 15, 1971 was
nullified and Oubegaranadin was declared as the absolute owner
of the suit property. However, as would be noticed hereinafter,
validity of the Partition Deed dated March 15, 1971 itself is in
Civil Appeal No. 3227 of 2017 Page 4 of 23
issue.
9) Proceeding further to complete the factual narration, it so
happened that respondent nos. 3 to 5 instituted a suit, as indigent
persons on January 03, 1983 (O.P. No. 1 of 1983) before the
Principal Subordinate Judge, Puducherry against their father
Oubegaranadin, their mother (Defendant No. 6) as well as the
respondent nos. 1 and 2 to whom Oubegaranadin had sold part
of the property. In this suit, respondent nos. 6 to 9 as well as
appellant, Selvanathan (since deceased whose legal heirs are
respondent nos. 10 to 13 herein) and one Mr. M.B. Vaithilingam
(since deceased whose legal heirs are respondent nos. 14 to 16
herein), were also impleaded as defendants. In this suit,
respondent nos. 3 to 5 sought decree for declaration of title in
respect of not only the suit property but also other properties.
They also sought declaration to the effect that decree dated June
24, 1974 passed in the favour of their father was not binding and
be set aside. As a consequence, they also sought declaration
that sale deed dated March 29, 1980 executed by their father in
favour of respondent nos. 1 and 2 be set aside. They went to the
extent of seeking cancellation of three sale deeds dated
December 11, 1980, December 11, 1980 and April 29, 1981
executed by them in favour of appellant herein.
Civil Appeal No. 3227 of 2017 Page 5 of 23
10) In the plaint it was averred by respondent nos. 3 to 5 that
they were children of Oubegaranadin and respondent no. 6
herein and their succession was governed by French Civil Law.
They also traced the history of events (which have already been
noted above). It was contended that as far as suit for declaration,
i.e. O.S. No. 70 of 1974 filed by Oubegaranadin is concerned, he
had obtained the decree therein by fraudulent misrepresentation
of facts and that their mother (respondent no. 6), who
represented them in the said suit, was coerced to submit to the
decree and, therefore, such a decree was not binding on them.
Likewise, insofar as three sale deeds executed by them in favour
of the appellant are concerned, it was alleged that their father
coerced them to sell the property to the appellant which were
voidable.
11) Respondent nos. 1 and 2 resisted the suit by contending
that decree passed in O.S. No. 70 of 1974 was valid decree
which was not obtained by fraud or misrepresentation and since
Oubegaranadin was the absolute owner of the properties in
question he had right to sell the same and, therefore, sale deed
executed in their favour in respect of property nos. 76C and 76D
was valid. The appellant also resisted the suit by contending that
he had purchased the property from respondent nos. 3 to 5 for a
Civil Appeal No. 3227 of 2017 Page 6 of 23
valuable consideration and had also paid the full consideration.
After purchasing the same he had leased out the property and
was collecting rents. The appellant, therefore, pleaded that sale
deed in his favour was valid and sale deed in favour of
respondent nos. 1 and 2 by Oubegaranadin was illegal.
12) On the basis of pleadings, issues were drawn by the trial
court. Parties led their evidence and after hearing the arguments,
the trial court passed the judgment and decree dated January 17,
1986 holding that decree passed in O.S. No. 70 of 1974 was valid
since no prejudice had been caused to the interest of the then
minors, i.e., respondent nos. 3 to 5 herein. He also held that
three sale deeds executed by respondent nos. 3 to 5 were not
under coercion but were executed to meet the family debts and
out of necessity. Since, respondent nos. 3 to 5 have been left
without any property, the learned Subordinate Judge, opined that
an additional 10% of the sale consideration for the suit property
and 5% of the sale consideration for the land be paid over by the
appellant and respondent nos. 1 and 2 to respondent nos. 3 to 5
and on the said basis, quantified the sum to be paid.
13) Aggrieved by the partial decree of suit, as full relief prayed
for not having been granted, respondent nos. 3 to 5 preferred the
appeal (A.S. No. 1052 of 1986) on the file of the High Court of
Civil Appeal No. 3227 of 2017 Page 7 of 23
Madras. Respondent nos. 1 and 2 preferred cross-objection
insofar as the sale consideration in respect of the land (it is not
the subject matter of the present appeal). Insofar as the direction
to pay an additional 10% of the sale consideration for the building
to respondent nos. 3 to 5, the appellant preferred an independent
appeal in A.S. No. 335 of 1987 in the High Court of Madras.
14) The learned Single Judge of the High Court vide judgment
dated March 19, 1988 reversed the judgment of the Trial Court on
certain counts and allowed A.S. Nos. 1052 of 1986 and A.S. No.
335 of 1987. Holding that respondent nos. 3 to 5 were the
absolute owners and Oubergaranadin had no right over the same
property, it was concluded that the judgment and decree passed
in O.S. No. 70 of 1974 was fraudulent and not binding on
respondent nos. 3 to 5 and that respondent nos. 3 to 5 were
entitled to be declared owners of the suit property subject to sale
deeds executed by them. Though, the learned Single Judge held
that in view of the fact that the appeal preferred by respondent
nos. 3 to 5 are allowed, respondent nos. 1 and 2 are not liable to
pay any compensation and, ultimately, dismissed the
cross-objection.
15) Aggrieved by the said judgment, respondent nos. 1 and 2
filed LPA Nos. 113 to 115 of 1999 before the Division Bench of the
Civil Appeal No. 3227 of 2017 Page 8 of 23
High Court. These appeals are allowed by the Division Bench
vide impugned judgment dated March 04, 2004 in the following
terms:
“20. In view of the foregoing discussion, the judgment
and decree allowing the appeal in A.S. No. 1052/86 is
set aside. Equally the dismissal of Cross Objection
filed by the Appellant regarding the levy of
compensation cannot be sustained, as the Learned
Judge himself found that such a decree for damage by
the trial court cannot be sustain. Though the
appellants have challenged the judgment and decree
made in A.S. No. 335/1987 filed by the 10th defendant,
the appellants are not aggrieved persons and hence
we are inclined to dismiss the appeal in L.P.A. No.
114/1999. Accordingly, L.P.A. Nos. 113 and 115 of
1999 are allowed and L.P.A. No. 114/1999 is
dismissed. No costs.”
16) The High Court has held that by Regulation dated January
06, 1817, the French Code was applicable and by Regulation
dated April 24, 1880, Civil Procedure Code was made applicable
to Puducherry. As per the said French Code, customary Hindu
Law was applicable. Applying that law, the High Court has
concluded that since Oubegaranadin was the absolute owner of
the said property, as per Hindu law sons cannot seek partition in
the property of their father. Therefore, the Partition Deed dated
March 15, 1971 was not a valid instrument and the findings of the
Single Judge that Oubegaranadin had lost his right by virtue of
partition deed is contrary to law.
Civil Appeal No. 3227 of 2017 Page 9 of 23
17) It may be mentioned at this stage that the entire suit
property belonged to Oubegaranadin absolutely, which fell in his
share after partition between him and his brother Simon.
However, Oubegaranadin partitioned the said property by
executing Deed of Partition dated March 15, 1971. Under this
partition deed, some of the properties were given by
Oubegaranadin to his sons, namely, respondent Nos. 3 to 5.
Respondent Nos. 3 to 5, therefore, claim their right on the basis
of this partition deed. No doubt, Oubegaranadin got that partition
deed cancelled by filing a suit in this behalf ad obtaining decree
therein. However, as per the High Court, the first question was as
to whether respondent Nos. 3 to 5 were entitled to claim any right
under the partition deed dated March 15, 1971.
18) The High Court noted that the family of Oubegaranadin, and
his children i.e. respondent Nos. 3 to 5, belong to Christianity in
religion. The High Court further noted that by Regulation dated
January 06, 1817, the French Code to the exception of the Code
of Criminal Procedure, containing the totality of the substantive
and objective laws of France, including the personal law, have
been made applicable to Puducherry. According to Section 3 of
the said Regulation, Indians, whether Hindus, Muslims or
Christians would continue to be governed by usage and customs
Civil Appeal No. 3227 of 2017 Page 10 of 23
of their respective castes. In that way, French law has become
the law of the land though in matter of personal law it was
applicable only to settlers and their descendants. The Regulation
dated April 25, 1880 made the provisions of Code of Civil
Procedure, 1908 (CPC) relating to civil status, namely, the
declaration of births and deaths of marriage applicable to
Puducherry territory, but a saving clause left it open to Indians to
marry as per their customs. The said saving clause did not apply
to Christians who were from that time governed by French law in
respect of marriage and divorce but in respect of all other matters
pertaining to personal law. Christians continue to be governed by
the customary Hindu Law.
19) The High Court also pointed out that though Hindu
Succession Act, 1956 was made applicable in Puducherry, insofar
as Christians are concerned, they continued to be governed by
customary law, inasmuch as, Hindu Succession Act was not
applicable to Christians by virtue of Section 2(1)(c) thereof which
made the Act applicable only to Hindus. Therefore, Christians in
Puducherry continued to be governed by customary law, i.e.
customary Hindu law that was prevalent in Puducherry as the law
of succession. Thus, rights of the parties were to be determined
on the basis of the said Hindu customary law. Taking extensive
Civil Appeal No. 3227 of 2017 Page 11 of 23
note of this customary Hindu Law in Puducherry, as per various
decisions as well as Book on Hindu Laws by French writer J.
Sanner, the High Court has come to the conclusion that during
the lifetime of the father, sons cannot ask for partition of the
ancestral property or property of the father. It further held that still
the father is entitled to distribute or give away his properties to his
children. However, according to the High Court, it could not be
done in the manner it was done in the instant case and Partition
Deed dated March 15, 1971 was not a valid document.
20) Before proceeding further, it would be appropriate to
mention as to how different parties were described in the original
suit and their respective position in these proceedings:
Name In Original Suit Before this Court
Oubegaranadin Defendant No.1 Since deceased
Thierysanthamal Defendant No.10 Petitioner
Viswanathan Defendant No.4 Respondent No.1
A Andal Defendant No.5 Respondent No.2
Savarimouthurayan Plaintiff No. 1 Respondent No.3
John Kennedy Plaintiff No. 2 Respondent No.4
Robert Kennedy Plaintiff No. 3 Respondent No.5
Marie Rosalie Defendant No.2 Respondent No.6
Kumar Manjini Defendant No.3 Respondent No.7
Babu Defendant No.8 Respondent No.8
RathinavelMudaliar Defendant No.9 Respondent No.9
Mrs Elizabeth Defendant No.6 Respondent No.10
Civil Appeal No. 3227 of 2017 Page 12 of 23
(Selvanthan)
Joseph Elango
Defendant No.6
(Selvanthan)
Respondent No.11
Albert
Defendant No.6
(Selvanthan)
Respondent No.12
Francis
Defendant No.6
(Selvanthan)
Respondent No.13
Rukmaniammal
Defendant No.7
(M.B. Vaithilingam)
Respondent No.14
21) Mr. K. Ramamoorthy, learned senior counsel appearing for
the appellants, advanced the following propositions:
(a) The partition deed dated March 15, 1971 is valid in law.
(b) It was submitted that the appellant was not disputing the
legal position that as per customary Hindu law during the
lifetime of their father, sons cannot ask for partition. His
submission, however, was that it is not respondent Nos. 3 to 5
(sons) who asked for partition. On the contrary,
Oubegaranadin himself executed the partition deed.
Therefore, this partition deed was valid in law. The High Court
wrongly applied French Code and Hindu Succession Act had
already come into force in Puducherry.
(c) The decree in OS No. 70/1974 is not binding on the
plaintiffs as Order XXXII Rule 7 CPC had not been followed.
Civil Appeal No. 3227 of 2017 Page 13 of 23
Submission in this behalf was that sub-rule 1A was
added to Rule 7 of Order XXXII by the Act of 1976. In Tamil
Nadu, earlier State of Madras (Puducherry), amendment to
this effect was inserted way back in the year 1910, which is
in the following form:
“(1A) Where an application is made to the Court for
leave to enter into an agreement or compromise or for
withdrawal of a suit in pursuance of a compromise or
for taking any other action on behalf of a minor or
other person under disability and such minor or other
person under disability is represented by counsel or
pleader, the counsel or pleader shall file in Court with
the application a certificate to the effect that the
agreement or compromise or action proposed is in his
opinion for the benefit of the minor or other person
under which a minor or other person under disability is
a party shall recite the sanction of the Court thereto
and shall set out the terms of the compromise as in
Form No. 24 in Appendix D to this Schedule.” (Dis No.
1647 of 1910)”
On the basis of the above, submission was that the
judgment and decree in OS No. 70 of 1974 was passed
without following the procedure contained in Order XXXII
Rule 7 CPC and, therefore, not valid in law. According to
the learned senior counsel, the decree in the said suit was a
consent decree and, therefore, leave of the Court should
have been obtained, as required under Order XXXII Rule
7(1A) CPC.
(d) The mortgage deed dated October 22, 1979 A10 by
Defendant Nos. 1 to 4 and 5 is not valid as Defendant No.1
Civil Appeal No. 3227 of 2017 Page 14 of 23
has no title;
(e) The sale deed dated 1980 by Defendant No.1 in favour of
Defendant Nos. 4 and 5 is not valid.
(f) The sale deeds by plaintiffs to Defendant No.10 are valid
(g) In view of the fact that Defendant No.4 and Defendant No.5
are barred by the principles of res judicata, the findings of the
Single Judge cannot be challenged by them. He also cited the
following judgments in support of the submission predicated on
res judicata: Badri Naraya Singh v. Kamdeo Prasad Singh
& Anr.1
; Lonankutty v. Thomman & Anr.2
; Narayana Prabhu
Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu
(Dead) By LRs.3
; and Sri Gangai Vinayagar Temple & Anr. v.
Meenakshi Ammal & Ors.4
22) Refuting the aforesaid submissions, argument advanced by
learned counsel for respondent Nos. 1 and 2 was that since the
customary Hindu law in Puducherry applicable to the parties do
not recognise any entitlement or right of the children to claim and,
therefore, demand any interest or share in the property, no
partition can legally take place between the father and
respondent Nos. 3 to 5. Any partition, even if effected, would,
1 AIR 1962 SC 338
2 (1976) 3 SCC 528
3 (1977) 2 SCC 181
4 (2015) 3 SCC 624
Civil Appeal No. 3227 of 2017 Page 15 of 23
therefore, be inconsistent with the law. The father was, therefore,
entitled to seek a declaration that he continued to be the absolute
owner of the properties in question. The father sought such a
declaration and obtained it. He submitted that in the absence of
any right or any entitlement in favour of the said respondents
under the customary Hindu law, the partition cannot create a right
in their favour more particularly when the partition was set at
naught at the instance of the father. If at all the partition was the
product of the absolute right of the father, he had the authority to
recall it. This he did through judicial process. In the aforesaid
circumstances, the transfer or alienation of property effected by
the father towards the family necessity would stand on a higher
footing compared to the alienation made by the abovesaid
respondents without any authority whatsoever.
23) He also submitted that if only respondent Nos. 3 to 5 have
any right to demand a share in the property in question during the
lifetime of father, the question of applicability of Order XXXII Rule
7 CPC will arise. In the absence of any such right, no claim can
be founded only on the basis of alleged procedural impropriety.
According to him, following salient features of the case were
material to decide the issue:
(a) This is a case admittedly governed by the customary Hindu
Civil Appeal No. 3227 of 2017 Page 16 of 23
law as was obtaining in Puducherry.
(b) Under the customary Hindu Law in Puducherry (which
corresponds in some respects to the position obtaining in the
Dayabagha School), the father is the absolute owner of the
property in his hand. The sons do not derive any right in the
family property by reason of their birth which is different from
the position in the Mitakshara School. In other words, the sons
rights arise on the demise of the father and not prior thereto.
Consequently, anything happening during the lifetime of the
father does not confer any right or interest in them.
(c) The father has, thus, an unfettered power of disposition of
the property in his hands. The sons do not have the right to
demand partition or to ask for any share in the family property
during the father’s lifetime. They do not inherit any interest or
right during the lifetime of the father. Consequently, during
their lifetime, they have no interest in any estate which can be
defended or protected.
(d) In the above context, the principle of conflict of interest or
adverse interest dealt with in Order XXXII Rules 3A and Rule 7
CPC relevant in other schools of law would not be relevant in
proceedings involving minors in the Union Territory of
Puducherry, particularly concerning cases involving the
Civil Appeal No. 3227 of 2017 Page 17 of 23
application of customary Hindu Law.
(e) The plaintiffs have not placed reliance on the provisions of
the French Civil Code in support of the argument that insofar
as the partition deed dated March 15, 1971 is concerned, it
complied with mandatory formalities of the Code and the
Division Bench rightly rejected arguments in this regard.
24) Having regard to the respective submissions, it is clear that
first and foremost it needs to be determined as to whether
partition deed dated March 15, 1971 is valid in law, inasmuch as,
this issue will have bearing on the remaining case.
25) As already pointed out above, the foremost question
pertains to the validity of the Partition Deed dated March 15, 1971
and other arguments would arise for consideration only if the
appellant is able to cross this hurdle. At this stage, it would be
pertinent to point out that even after holding that during the
lifetime of their father sons cannot claim partition of the properties
as per the said customary Hindu Law, the High Court has
accepted the fact that the father is still enabled to distribute and
partition his property between the children and the descendants.
As per the High Court, this can be done either by instruments
inter vivos or by Will and further that the settlement or Will must
comply with the formalities, conditions and rules laid down for
Civil Appeal No. 3227 of 2017 Page 18 of 23
donations inter vivos and Wills and the partitions made by
donation inter vivos must include only those properties which the
donor then possesses. In respect of this assertion, the High
Court has referred to Article Nos. 1075 and 1076 of the French
Code. From the aforesaid, the High Court has observed that the
father can distribute or partition the property between the children
and the descendants only by gift or family settlement between the
parties themselves. According to it, the plaintiffs had not set up
their claim on that basis as they did not rely on Articles 1075,
1076 or 1077 of the French Code in respect of their claim.
26) We may reproduce Articles 931, 1075, 1076 and 1077 of
the French Code at this juncture:
“931. Every instrument containing a donation inter
vivos shall be executed before notaries in the ordinary
from the contracts, and the original shall remain with
them; otherwise such instruments shall be void. Civ.
C. 894, 948, 949, 1339, 1340.
1075. Fathers and mothers and other ascendants may
make a distribution and division of their property
between their children and descendants Civ.C. 745,
914, 968, 1076 et seq.
1076. These divisions may be made by donations
or by wills in accordance with the formalities
conditions and rules laid down for donations inter
vivos and wills.
1077. If all the property which are ascendants leaves
at the time of his death has not been included in the
division, such property as has not been included in the
division, such property as has not been included shall
be divided according to law. Civ. C. 723 et seq., 815
Civil Appeal No. 3227 of 2017 Page 19 of 23
et seq., 887 et. seq.”
27) Questioning the aforesaid approach of the High Court, the
submission of the learned senior counsel for the appellant was
that the High Court committed error in deciding the issue by
applying the French Code, which was not applicable in the instant
case. As per him, the Hindu Succession Act was made
applicable to the territory of Puducherry in the year 1963 and,
therefore, relationship of the parties was governed as per the said
Succession Act and not the French Code.
28) The aforesaid argument is misconceived for more than one
reason. First of all, the argument ignores that Oubegaranadin
and his sons (respondent Nos. 3 to 5) are Christian by religion.
Therefore, Hindu Succession Act would not govern, even if it has
been enforced in the territory of Puducherry in the year 1963.
The High Court has dealt with this aspect in detail in its judgment,
as pointed out above, and has come to the conclusion that insofar
as Christians are concerned, old Customary Law continue to
apply. No attempt was made by the learned senior counsel for
the appellant to dislodge the same. Even otherwise, it is the
Customary Hindu Law which has been applied to decide the case
which approach is perfectly justified.
29) We also find that the plea to the effect that Hindu
Civil Appeal No. 3227 of 2017 Page 20 of 23
Succession Act to be enforced in the Union Territory of
Puducherry w.e.f. 1963 and, therefore, French Code was not
applicable thereafter, has taken for the first time in this Court that
too during the arguments. Interestingly, even in the Special
Leave Petition, it is accepted that in the plaint filed by respondent
Nos. 3 to 5, it was specifically mentioned that they were governed
by French Civil Law. The learned Single Judge while deciding
appeals filed by the appellant herein as well as respondent Nos. 3
to 5 (plaintiffs) in the suit have also dealt with the matter in the
light of French Code. Even if it is assumed that Oubegaranadin
and his sons are governed by the Hindu Succession Act, this Act
has no applicability to the transaction in question. The said Act
governs the succession of the property when a Hindu dies
interstate. The manner in which his properties would devolve on
his successors is laid down in the scheme of the said Act. Here,
the plaintiffs did not claim (nor could they claim) that they became
owner of the property by way of succession as per the provisions
of Hindu Succession Act. On the contrary, they claimed right in
the property on the basis of Partition Deed dated March 15, 1971
which was executed by their father, namely, Oubegaranadin
during his life time.
30) Therefore, the main issue is as to whether such a partition
Civil Appeal No. 3227 of 2017 Page 21 of 23
deed could be executed by Oubegaranadin in respect of the
properties of which he was the absolute owner. It is to be borne
in mind that the properties in question had fallen in the share of
Oubegaranadin on the basis of partition deed dated March 23,
1959 between Oubegaranadin and his brothers. As on that date,
French Code governed the field as per which customary Hindu
Law applies. It is not disputed that Oubegaranadin had become
the absolute owner of the property in question. Therefore, the
moot question is as to whether he could give away portions of
these properties to his sons by entering into a partition deed like
the one he executed on March 15, 1971? Even if French Code is
not applied, the aforesaid question cannot be answered with
reference to the provisions of the Hindu Succession Act. Partition
Deed can be entered into between the parties who are joint
owners of the property. In case the father, namely,
Oubegaranadin herein wanted to give property to his sons, of
which he was absolute owner, it could be done by will or by
means of gift deed/donation etc. The High Court was, therefore,
right in observing that such a partition deed has to be construed
either a gift deed or family settlement. However, the claim of the
plaintiffs was not on that basis. It was not stated anywhere as to
whether necessary formalities, conditions or rules laid down for
Civil Appeal No. 3227 of 2017 Page 22 of 23
donation inter vivos or gift so as to enforce said document were
complied with in the absence of any pleadings, obviously no
evidence was produced to this effect.
31) We, therefore, for our aforesaid reasons, agree with the
conclusions arrived at by the High Court in the impugned
judgment. As a result, this appeal is dismissed.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ASHOK BHUSHAN)
NEW DELHI;
JANUARY 18, 2018.
Civil Appeal No. 3227 of 2017 Page 23 of 23
