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TMI Blog2018 (1) TMI 1577X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. Therefore, the main issue is as to whether such a partition 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 brother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lutely. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irs 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 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 govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Babu Defendant No.8 Respondent No.8 RathinavelMudaliar Defendant No.9 Respondent No.9 Mrs Elizabeth Defendant No.6 (Selvanthan) Respondent No.10 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 SC 338; Lonankutty v. Thomman Anr. (1976) 3 SCC 528; Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu (Dead) By LRs. (1977) 2 SCC 181; and Sri Gangai Vinayagar Temple Anr. v. Meenakshi Ammal Ors. (2015) 3 SCC 624. 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 donations inter vivos and Wills and the partitions made by donation inter vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 govern ..... 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