IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.12.2007 CORAM: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(NPD).No.730 of 2004 and C.M.P.No.5868 of 2004 1.Venkataraman @ Murali @ Raja 2.Girija 3.Chandra ... Petitioners/Respondents Vs. 1.R.Venugopal 2.R.Ganesan @ Vinayagam ... Respondents/Petitioners Prayer: Petition filed under Section 115 of the Code of Civil Procedure, against the Judgment and Decretal order of the learned Principal District Munsif, Pondicherry, dated 24.2.2004 made in E.P.No.90 of 2002. For Petitioners : Mr.R.Subramanian For Respondents : M/s.Hema Sampath SC For R.Subramanian ORDER The Civil Revision Petitioners herein are the respondents in Execution Petition No.90 of 2002 on the file of the learned Principal District Munsif, Pondicherry. 2.Before the lower Court, the respondents/petitioners in the Execution Petition No.90 of 2002 have prayed for the relief: (i) to grant leave to them to execute the French Grosse Copy of the Usufructuary Gift Deed dated 25/04/34 as a Deemed Decree; (ii) to grant leave to execute the Deemed Decree (S.146 C.P.C.); (iii) to deliver to the civil revision petitioners/respondents vacant and actual possession of the E.P. Schedule Mentioned Property by ejecting the respondents, bound by the decree, and if necessary by removing the https://hcservices.ecourts.gov.in/hcservices/ person/persons bound by the said decree and further if necessary by breaking open the locks, if any, put up by the Respondents/Obstructors or person/persons, bound by the said decree, in accordance with Order XXI R.35(1) & (3) of the C.P.C. 3.In the counter filed to the E.P.No.90 of 2002, filed by the first respondent and adopted by other respondents, it is inter-alia averred that the E.P. is not maintainable either in law or on facts and that the respondents are the grand son and daughters of the original owner of the execution petition schedule mentioned property and that they have entered into a lease with an agreement holder, who had entered into an agreement with the actual owner of schedule mentioned property viz., grand mother of the respondents and hence, the civil revision petitioners/respondents have no right at all to file the Execution Petition. 4.It is also the plea of the respondents that without obtaining any decree from any Court of law no Execution Petition can be filed and hence, the E.P. has to be dismissed in limini. As a matter of fact, the respondents contend that the French Civil Court was revoked by the Government of Pondicherry and hence, the revision petitioners/respondents have no manner of right to file the present execution petition. 5.The learned District Munsif, Pondicherry has passed orders in E.P.No.90 of 2002 on 24.02.2004 inter-alia allowing the Execution Petition on condition that the civil revision petitioners/respondents to produce the grosse (original) within 3 days and further observed that only then, the delivery would be effected etc. 6.According to the learned counsel for the civil revision petitioners/respondents, the order of the lower Court is not valid in law because of the fact that the execution petition was entertained under Civil Procedure Code and under French Civil Court, when Civil Procedure Code, 1908 and the Transfer of Property Act were extended to Pondicherry even in 1968 and that the lower Court also committed an error that the respondents acquired the right within the meaning of Sub-Section 2 of Section 4 of the Pondicherry Extension of Laws Act, 1963. 7.The further case of the civil revision petitioners/respondents is that the lower Court has overlooked the fact that the right to execute a Will arise only on the death of the last life estate holder-Radhabai Ammal viz., 29.07.2002 and that the Trial Court has failed to see that the mandatory requirement as per law to produce the original document was not complied with. 8.The learned counsel for the respondents/petitioners before the Trial Court contends that the Execution Petition No.90 of 2002 were filed by the respondents/petitioners in regard to the delivery of possession of the E.P. schedule mentioned property to the placing reliance on the basis of a usufractuary gift deed dated 25.04.1934 perpetuated to have been executed by the father of the respondents/petitioners and that the said https://hcservices.ecourts.gov.in/hcservices/ Gift Deed was executed before a Notary, and the said document under French Law was a Deemed Decree and therefore, the respondents/petitioners are legally empowered to execute the said decree and to obtain delivery of possession of the property from the petitioners /respondents. The learned counsel for the respondents /petitioners pointed out before this Court that the usufractuary gift deed dated 25.04.1934 was executed in favour of one Radhabai Ammal, who was the aunt of the respondents/petitioners, who had the life interest to enjoy the said property along with the life time of Balasubbammal. 9.The learned counsel for the revision petitioners submits that under the erstwhile French Law, French Legal System enabled a person to execute a document without going through the process of regular suit and that on 15.09.1992 there was partition Gopal Chettiar and two brothers and that on 21.12.1930 the present property was purchased by Ramakrishna and that on 25.04.1934 Ramakrishna Chettiar executed a gift deed giving life estate to Balasubbammal and his sister Radhabai Ammal and on 24.09.1965 Ramakrishna expired and legal representatives namely, R.Venugopal and R.Ganesan @ Vinayagam of Ramakrishna Chettiar filed a suit in O.S.No.8 of 1998 on the file of the First Additional District Munsif, Pondicherry, praying for the relief of permanent injunction against the defendant, as servants, agents etc. from demolishing or altering the superstructure or digging the earth or constructing any type of structure in the schedule mentioned premises and for costs of the suit. 10.It is significant to point out that Radhabai Ammal, defendant in the suit in O.S.No.8 of 1998 has specifically admitted in her evidence as D.W.1 that she had the right of enjoyment and that she could enjoy the said house as she desires till her demise. It is the case of the revision petitioners that after the death of Radhabai Ammal, the LRs has come by way of present E.P. 11.The Pondicherry (Extension of Laws) Act, 1968 was enacted by Parliament on 24.05.1968 to extend certain Central Acts to the Union Territory of Pondicherry and by virtue of Section 4(1) Repeal and saving provision any law in force in Pondicherry or any area thereof corresponding to any Act referred to in Sub-section (1) of Section 3 or any part thereof (except in so far as such law continues to be applicable to Renoncants) shall stand repealed as from the coming into force of the said Act in Pondicherry and sub-section(2) of Section 4 enjoyed that; Nothing in sub-section (1) shall affect- (a)the previous operation of any law so repealed or anything duly done or suffered thereunder; or (b)any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed; or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid and any such investigation, legal proceeding or https://hcservices.ecourts.gov.in/hcservices/ remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act had not been passed: Provided that anything done or any action taken (including any appointment or delegation made, notification, instruction or direction issued, form, bye-law or scheme framed, certificate obtained, permit or licence granted, or registration effected) under any such law, shall be deemed to have been done or taken under the corresponding provision of the Act extended to Pondicherry by this Act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under the said Act. 12.Section 3 of the Pondicherry (Extension of Laws) Act, 1968 provides extension with amendment of certain laws to Pondicherry and the different dates which may be appointed for different provisions of any Act and any reference in any such provision to the commencement of the Act shall be construed as a reference to the coming into force of that provision. 13.According to the learned counsel for the civil revision petitioners that to enable execution without going to Civil Court is a procedural Act and it is to be seen that whether Section 4(2) of the Pondicherry (Extension of Laws) Act, 1968 preserve such right inspite of extension of Civil Procedure Code to Pondicherry on 05.09.1968 and on 05.09.1968 what are the rights and liabilities accrued to the parties are to be seen and they never had any right when Balasubbammal and Radhabai Ammal were there and the Trial Court relied on the mortgage deed decision and there was no evidence to show when Balasubbammal expired and it has to be seen that whether any right accrued before 05.09.1968 and Section 4(2) of the Pondicherry (Extension of Laws) Act, 1968 was not the same and that the respondents/petitioners before the lower Court has to file a suit claiming their right in law. 14.The learned counsel for the revision petitioners/respondents placed reliance on the French Civil Code (English Translation Volume I by E.BLACKWOOD WRIGHT, LL.D., Trinity College, Dublin, and of the Middle Temple, Barrister-at-Law. Under the caption TITLE III OF USUFRUCT, OF THE RIGHT OF USER AND OCCUPATION. CHAPTER-I OF USUFRUCT which runs as follows: "578.Usufruct is the right of enjoying the use of things which are owned by another as fully as the owner himself, subject to the duty of keeping intact the subject-matter of such usufruct. (C.587 and following; 600, 1568, 2108, 2118) 579.Usufruct arises through operation of law, or by an act inter parties. (C.384, 754, 899, 917, 949, 1401, 1403, 1422, 1530, 1549). 580.A usufruct may be created either simpliciter without limitation, or up to a certain day, or subject to conditions. (C.1168). 581.A usufruct may be created in respect of any kind of property, movables or immovables. (C.587, 588)." https://hcservices.ecourts.gov.in/hcservices/ 15.He also placed reliance to Section 3 of the manner in which usufruct terminates and pressed into service. 617 which deals with the extinguishment of usufruct by the actual or civil death of the usufructuary, by effluxion of time for which it was granted, etc. 16.The learned counsel for the civil revision petitioners/respondents cited AIR 1997 Madras 178 (Shanmugam V. Perumal Naicker and others) wherein it is observed as follows: "Civil P.C. (5 of 1908), Section 4(2) – Execution of decree in Franch Colony, Pondicherry, obtained before commencement of C.P.C. in the Colony – Law applicable – Code coming into force between publication was ordered and gazetter publication was made – Steps under French Law thereafter are not valid – After coming into force of Civil P.C., auction purchaser not depositing amounts as per provisions of Order 21, Rules 84 and 85 – It follows there was no sale at all – Civil revision filed against order for sale and then withdrawn – Principles of res judicata or constructive res judicata do not apply – Subsequent suit will not be barred – Auction sale being void, 'mortgager continues to be owner – There being no title in law, no title by adverse possession can be claimed." 17.The revision petitioners counsel relied on AIR 1976 Madras 32 (Adaikappa Chettiar V. A.Natchiar) wherein it is observed as follows: "(B) Pondicherry (Extension of Laws) Act (1969) Section 4 – Mortgage executed before Notaire executable under the French Law without recourse to suit – Indian enactments extended to Pondicherry by the Pondicherry (Extension of Laws) Act 1968 Section 4(1), (2) – Subsequent suit on the mortgage in Indian Court – Maintainability. (Civil P.C. (1908) section 9 – Mortgage under French law in Pondicherry – Jurisdiction). Under French Law a grosse copy of a notarial mortgage could be executed as if it were a decree without a suit on the mortgage. This right is a substantive and not a procedural one and could even after the merger of Pondicherry in India, it could be exercised in the Indian Court praying for sale of the hypotheca straightway. AIR 1973 Cal. 295, Rel. on. But the existence of such a remedy does not bar a Civil Suit on the mortgage in the Indian Court after the merger. What sec. 4 does is not to shut out the erstwhile French Citizen from having resort to the Indian Civil Court, but to protect and preserve whatever rights and privileges he might have had under the French law, which has been repealed. When a person, who enjoyed such a privilege, filed a suit in the ordinary Civil Court on foot of a notarial mortgage deed, it is the plain duty of the Court to entertain it under Section 9 of the Indian Civil Procedure Code." https://hcservices.ecourts.gov.in/hcservices/ 18.In the aforesaid decision at page 33 in paragraph 6 it is held as follows: "Under the French law, a grosse copy of a notarial mortgage deed could be executed as if it were a decree granted by a court of law. There was no need under the French system for the mortgagee to file a suit pay court fee on the plaint, obtain a preliminary decree and then a final decree and then put that final decree in execution against the hypotheca. The notarial mortgage deed could be entrusted straightway to a 'huissier' and executed in accordance with the French procedure, the details of which I need not go into now. The question arises whether after the French Procedure Code was repealed by the Indian Civil Procedure Code, a person in the situation of the plaintiff, holding a grosse copy of a notarial mortgage deed is disentitled under the Indian law to file a plaint on foot of the deed paying court fee thereon and obtain a decree in accordance with the Indian Civil Procedure; but should proceed to enforce the notarial bond straightway. In fact, learned counsel for the appellant went the length of saying that the Civil Court would have no jurisdiction to entertain the suit filed by the holder of a notarial mortgage deed on foot thereof. I am entirely unable to agree. The question whether the plaintiff was entitled to execute the notarial mortgage deed without obtaining a decree thereon is one which does not call for adjudication in this appeal, though it may not be irrelevant to refer to a Full Bench decision of the Calcutta High Court in Susama Bala V. Bibhuti Bhushan AIR 1973 Cal 295. There it has been held that a grosse copy of a notarial mortgage deed could be executed even after the Indian law has come into force without a decree being obtained. According to the Full Bench of the Calcutta High Court, the right obtained under the grosse copy of the notarial mortgage deed is a substantial right and not a procedural one and it must be preserved under the Indian law after the merger. According to the learned Judges, a person in the position of the plaintiff could execute Ex.A.1 as if it were a decree by filing an execution petition in the Indian court and praying for the sale of the hypotheca straightaway. Upon this question, I do not wish to pronounce any opinion. The distinction between substantive rights recognised by French law and mere procedural rules of French law will have to be drawn sagaciously with regard to the relevant circumstances of each case and the distinction cannot be exhaustively illustrated in vacuo. For instance, the requirement of French law that notice of the deposit of 'Cashierdes cahrges' shall be served on the debtor and all the creditors and othr persons mentioned in Article 692 of the Code de Procedure Civile is a matter of substance and ought to be complied with by the Indian courts acting within the frame work of the Indian Civil Procedure Code. But the requirement of the French law that the service of notice, shall be effected through huissiers is merely a procedural matter, https://hcservices.ecourts.gov.in/hcservices/ which the Indian Courts can ignore. No litigant can be heard to say that service by process servers under the watchful supervision of the Indian courts is less efficacious than service by French huissiers. There may, however, be intermediate cases such as the imposition of time limits by French law with reference to service of notices. It is for the Judges to consider judicially whether such time limits affect the substance of the thing or are merely procedural in character. The 'substantive' may shade off imperceptible degrees into the 'procedural' and it is for the Court to draw the line between the two, remembering the purpose of the distinction. The right to execute a notarial mortgage deed straightway without filing a plaint, paying court fee, obtaining decree and exposing the claimant to the dilatory tactics of his opponent is, I fancy, a valuable right and a substantive right. But the question is whether the holder of a copy of a notarial mortgage deed is confined under the Indian law to the remedy which he had under the French law. What Section 4 (20 of the Pondicherry (Extension of Laws) Act, 1968, says is that nothing in sub-section (1) shall affect any right, privilege, obligation etc. acquired or accrued under the French law that has been repealed. There is nothing in this section which shuts out the person who has acquired such a right under the French law from the portals of the Indian Courts and from the remedy to which, under the Civil Procedure Code and under the Indo-Anglian system of jurisprudence he would undoubtedly be entitled to. A holder of a mortgage, although it has been granted under the French law and procedure, is certainly entitled under the Civil Procedure Code to file a suit in accordance with the procedure thereof. Section 9 of the C.P. Code says that the Court shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognisance is either expressly or impliedly barred. It is not contended by the learned counsel for the appellant that the suit filed by the plaintiff in the court below is not a suit of a civil nature. What he contends is that inasmuch as the plaintiff had an alternative remedy under the French law to proceed to enforce the notarial mortgage deed without resort to a court of law, it is not competent for him to file a suit on Ex.A.1 in the Indian Court and obtain a decree in accordance therewith. It is indeed an irony that this argument should come out of the mouth of the defendant who has fully exploited the opportunity given to him by the plaintiff. If the plaintiff had chosen to enforce her privilege under the French law by putting the notarial mortgage deed in execution straightway, the defendant would not have had the opportunity of dragging on the proceedings for nearly five years and raising the defences which under the French law he could not raise. What Sec.4 of the Pondicherry (Extension of Laws) Act, 1968 does is not to shut out the erstwhile French citizen from having resort to the Indian Civil Court, but to protect and preserve whatever https://hcservices.ecourts.gov.in/hcservices/ rights and privileges he might have had under the French law, which has been repealed. When a person, who enjoyed such a privilege, filed a suit in the ordinary civil Court on foot of a notarial mortgage deed, it is the plain duty of the Court to entertain it under Section 9 of the Indian Civil Procedure Code. The argument that the court has no jurisdiction to entertain the suit or that the plaintiff has no remedy open to her under the Indian law by way of enforcing the mortgage in an action of this kind is to disregard the nature and amplitude of the saving provisions of the Pondicherry (Extension of Laws) Act, 1968, I have little hesitation in rejecting this contention of the appellant and in holding that even though the plaintiff might have had the alternative relief of enforcing the mortgage as if were a decree without resorting to an action in a Civil Court, undoubtedly she shared with the other Indian citizens the right to file a suit on the mortgage deed in a Civil Court, obtain a decree and then proceed to execute it." 19.The learned counsel for the revision petitioners/respondents drew the attention of this Court by placing reliance on the following passage at page 183 from the Book titled in THE FRENCH LEGAL SYSTEM AND ITS INDIAN CONNECTIONS By Justice Dr.DAVID ANNOUSSAMY, Visiting Professor, National Law School Formerly Chief Judge, Pondicherry Judge, High Court, Madras Vice-Chairman, Central Administrative Tribunal which runs as follows: "Similarly, when the French civil law happened to be administered in English language the right of usufruct was translated as life estate or limited estate. But those concepts are different from the usufruct in respect of which the Code Civil otherwise reputed for its brevity contains 47 articles. As defined by the Code Civil in Article 578, it is the right of enjoying the use of things, which are owned by another, as fully as the owner himself, subject to the duty of keeping intact the subject-matter of such usufruct. The French have split the right of ownership into two separate rights, the right of bare ownership and the right of usufruct. Each can vest in two different persons who can deal with it and dispose of it as they please. The fragmentation of right in French Law: can last even after the first beneficiaries had ceased to hold their respective rights. In a life estate also there is also a fragmentation of right. But both do not have concomitant rights as in the case of usufruct. So the rights and obligations in the case of usufruct and life estate are quite different; assimilating the one to the other is conducive to errors." 20.The learned counsel for the revision petitioners/respondents submits that copies of notarial acts are of two kinds: (i) common copies, or expeditions, and (ii) executory copies, or grosses and a grosse is a copy bearing the formule executoire and the 'executory formula' which is the same in the case of a notarial act as in that of the decree of a court of law, is an order addressed to all huissiers and other agents of la https://hcservices.ecourts.gov.in/hcservices/ force publique, directing them to give coercive effect, on request, to the covenants of the instrument, etc. 21.It is pertinent to refer that the Usufructory Gift Deed dated 25.04.1934 (Translation from Franch to English) executed by Ramakichenachettiar in favour of his mother Balasoubbammalle daughter of Venouchettiar and wife of the said Gobalacucheetiar and 2 of his sister Radhabayeammalle alias Leelailabaye daughter of the said late Gobalochettiyar and widow of mr.Zeganadam chettiar. In respect of the usufruct of the brick built partly tiled and partly tarraced house formerly bearing the No.79 and at present No.77 situated at the said Galisparincovil Street, Pondicherry with certain conditions. The said Usufructory Gift Deed dated 25.04.1934 has conditions: '(i)The said ladies Balasoubbammalle and Radhabayeammal alias Conzilabaye shall jointly and together have during their respective life times, the enjoyment of the said house without having the right to sell, mortgage or gift it; (ii)After the death of the said ladies Balasoubbammale and Radabayeammalle alias Couzilabaye the said house shall return to the donor, whereas the usufruct above mentioned shall come to an end by the death of the usufructories.' 22.It is to be noted that 'the individuals Balasoubbammalle and Radhabayeammalle alias Couzilabaye after reading and interpretation of all the preceding by the undersigned notaire (Mr.Ragounada Periasamy notare in the jurisdiction of Pondicherry) have formally declared by the present to accpet the usufructory gift of the said house made in their favour by their favour son and brother Ramakichena chettiar, by virtue of the present and undertake to conform to the conditions under which the present gift is made', as seen from the recitals of the said document. 23.The learned counsel for the respondents/petitioners submits that already a Decree was in favour of the respondents/petitioners and