IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 04/03/2004 Coram The Hon'ble Mr.JUSTICE K.GOVINDARAJAN and The Hon'ble Mr.JUSTICE N.KANNADASAN L.P.A.No.113 of 1999 and L.P.A.Nos.114 and 115 of 1999 L.P.A.No.113/98 1. Viswanathan 2.A.Andal .. Appellants, in all Appeals -Vs- 1.Savarimouthurayan .. 1st respondent in L.P.As.113 & 115 of 1999 & R2 in L.P.A. No.114/99. Thiery Santhamal .. 1st respondent in L.P.A.114/99& R11 in L.P.A.115/99 2.John U.Kennedy .. 2nd respondent in L.P.As.113 & 1 15 of 1999 3.Robert Kennedy @ Roberth Kennedy .. R3 in L.P.As.113 & 115/99 & R4 in L.P.A.114/99. 4.Oubegaranadin .. R4 in L.P.As.113 & 115/99 & R5 in L.P.A.114/99. 5.Mrs.Marie Rosalie ..R5 in L.P.As.113 &115/99 & R6 in L.P.A.114/99. 6.Kumar Manjini .. R6 in L.P.As.113 &115/99 & R7 in L.P.A.114/99. 7.Selvanathan (died) ..R7 in L.P.As.113 & 115/99 & R8 in L.P.A.114/99. 8.M.B.Vaithilingam (died) .. R8 in L.P.A.113 & 115/99 & R9 in L.P.A.114/99. 9.Babu @ Loudy Gandhi ..R9 in L.P.As.113 &115/99 & R10 in L.P.A.114/99. 10.Rathinavel Mudaliar .. R10 in L.P.A.113 & 115/99 & R11 in L.P.A.114/99 11.Thiery Santhanamal ..R11 in L.P.As.113 &115/99 & R1 in O.S.As.114/99. 12.Mrs.Elizabeth 13.Joseph Elango 14.Albert 15.Francis Dominique 16.Smt.Rukmaniammal 17.Kangeyan 18.S.Jaya R12 to R15 brought on record as L.Rs., of deceased 7th respondent and R16 to R18 brought on record as L.Rs., of decd., 8th respondent, vide order dt.26.2.2004 in C.M.Ps. 10480 to 10482 & 10486 to 10488/02. R12 to R15 brought on record as L.Rs., of decd.,8th respondent & R16 to R18 brought on record as L.Rs., of decd., R9 in L.P.A.114/99 as per order dt. 26.2.04 in C.M.Ps.10483 to 10485 10489 to10491/02. .. Respondents Appeals against the judgment dated 19.3.1998 made in A.S.No.1052/86, the judgment in A.S.No.335/1987, dated 19.3.98 and the judgment, dated 19.3.98 in Cross Objection in A.S.1052/96 on the file of the , High Court, Madras. !For Appellant : Mr.G.Masilamani, Senior Counsel, for M/s.G.M.Mani Associates, in all cases. ^For Respondents: Mr.S.V.Jayaraman, Senior counsel, for Mr.T.R.Rajaraman, for R1 to R3 in L.P.A.113 & for R2 & R4 in L.P.A.114 & 115/99. Mr.R.Subramanian, for R11 in all cases. Mr.G.Jawaharlal for R10 in all cases. :JUDGMENT N.KANNADASAN,J. Defendants 3 and 4 who are the purchasers from Oubegaranadin (1st defendant), the father of the plaintiffs filed the above Appeals having aggrieved by the common judgment and decree of the learned single Judge in A.S.No.1052/1986 and 355/1987 and Cross Objection in A.S.No.10 52/1986. 2. The property originally belonged to Maria Soosai Mudaliar who is the father of the 1st defendant, Oubegaranadin. Under Ex.B2 , the said Mariyasoosai Mudaliar donated 'A' schedule property in favour of his grandsons, namely, plaintiffs, reserving the life interest for the first defendant and Simon, his another son. On 23.10.1953 , Mariasoosai Mudaliar died. Thereafter the 1st defendant and his brother Simon divided the properties by a partition deed dated 9.4.19 59 marked as Ex.A4. Pursuant to Ex.A1 Parivarthanai deed, the entire 'B' schedule house property came to the 1st defendant. Thereafter under Ex.A5 dated 15.3.1971, a partition was effected between the 1 st defendant and his wife and the plaintiffs, his minor sons. The 1 st defendant filed a suit in O.S.No.70/1974 impleading the plaintiffs represented by their mother, to declare that he is the absolute owner of the property in spite of the partition deed Ex.A5. In the order dated 24.6.1974 marked as Ex.A15, the suit was decreed, since the guardian submitted to the decree by filing a written statement stating that they have no objection to pass a decree as prayed for. Thereafter, the 1st defendant had executed an usufructuary mortgage in favour of defendants 3 and 4 under Ex.A10 dated 22.10.1979, with respect to 'B' schedule property. 3. Subsequently, under Ex.A14,dated 29.3.1980, the 1st defendant executed sale deed with respect to door No.76 and 76D in favour of defendants 3 and 4. Similarly, the 1st and 2nd plaintiffs and the 3rd plaintiff executed sale deeds under Exs.A11, A12 and A13 respectively selling the 'B' schedule property in favour of the 10th defendant. Thereafter, the plaintiffs filed O.P.No.3/1983, seeking permission for filing the suit informa pauperis and after getting permission, the said suit was renumbered as O.S.No.20/1987 on the file of the learned Principal Sub-Judge. The learned Principal Sub Judge found that the judgment and decree in O.S.No.70 of 1974 binds the plaintiff and so the sale in favour of defendants 3 and 4 cannot be set aside. With respect to the sale in favour of the 10th defendant, it is found that the said sale was effected to meet family debts and for the necessity of the minor plaintiffs. While considering the defence that the 1 st defendant was leading immoral life and sold the properties for that purpose, the trial Court found that it is not established that the sale consideration was used for immoral purpose and to defeat the rights of the plaintiff. But,ultimately, to put an end to litigation and avoid anxiety to the defendants' purchasers about their heavy investment, the trial Court found that plaintiffs 1 to 3 are not entitled to the suit properties or for recovery of possession but they are entitled for compensation from defendants 3,4 and 10. The trial Court fixed a sum of Rs.9,000/- as compensation as against the appellants herein. Aggrieved against this judgment of the trial court, the plaintiffs preferred Appeal in A.S.No.1052/1986 and the 10th defendant preferred A.S.No.335/1987 and the appellants preferred Cross Objection in A.S.No.1052/1986. The learned Judge reversed the judgment and decree of the trial court and allowed A.S.Nos.1052/1986 and 335/1987. Though the learned Judge found that in view of the fact that the appeal preferred by the plaintiffs are allowed, defendants 4 and 5 are not liable to pay any compensation, ultimately, dismissed the Cross Objection. Aggrieved against the same, the appellants preferred the above appeals. 4. Learned Senior Counsel appearing for the appellant submitted that since both the Courts below have concurrently found that the 1st defendant is the absolute owner of the property and under the guise of partition, the plaintiffs did not get any right in the property and as they were not having any pre-existing right, the sale by the 1st defendant in favour of the appellant is valid in law and the plaintiffs cannot question the same. Learned Senior Counsel, referred to the decree obtained under Ex.A15 in support of his submission that the 1 st defendant is the absolute owner of the property and as such he was having every right to deal with the property. According to him, the learned Judge is not correct in holding that the plaintiffs got right under the partition and so the sale made by the 1st defendant in favour of the appellant cannot be sustained. 5. While answering to the arguments advanced by the learned Senior Counsel appearing for the appellant, learned Senior Counsel appearing for the respondents/plaintiffs submitted that Ex.A5 has to be construed either as settlement or family arrangement though it cannot be construed as partition and thereby the plaintiffs got right to the property. Relying on Chapter VII of the French Civil Code, learned Senior Counsel submitted that the father can give right in the property to the sons by executing partition deed or will in the form of gift and so it cannot be said that there cannot be any partition at all between the 1st defendant and the plaintiffs. Referring to the decision in Kale v. Dy. Director of Consolidation, AIR 1976 S.C. 807, learned Senior Counsel further submitted that even the members of the family may be parties to the family arrangement if they have some antecedent title, claim or interest, a possible claim in the property may be made which is acknowledged by the parties to the settlement. On that basis, learned Senior Counsel submitted that since the plaintiffs are having possible claims in the property after the death of their father, it has to be construed as a family arrangement in which the right has been given to the plaintiffs and as such the plaintiffs are entitled to claim right in the property on the basis of the said document. With respect to the decree obtained under Ex.A15, it is his submission that the 1st defendant has not filed the suit to set aside the partition deed under Ex.A5 but only to declare his absolute right. Referring to Order 32, Rule 7 of the Code of Civil Procedure, learned Senior Counsel submitted that the procedure contemplated under the said provision was not followed before passing of consent decree and hence the said decree cannot be relied on and if it is not followed it would be voidable which has been avoided by the plaintiffs by filing the present suit. 6. The point for consideration in these Appeals is :- "Whether the plaintiffs are entitled to claim right under Ex.A5 the partition deed dated 15.3.1971 so as to enable them to challenge the sale made by their father,the 1st defendant in favour of the appellants (defendants 3 and 4)?" 7. From the facts set out above,it is clear that the entire 'B' schedule property belongs to the 1st defendant absolutely. Both the learned Senior Counsels have not raised any doubt about the same. Hence we have to decide the other issues on the said basis. The plaintiffs claim right in the property only under Ex.A5 partition deed and challenge the right of the 1st defendant to sell the property. It is not in dispute that the family of the plaintiffs belongs to Christianity in religion. 8. By Regulation dated 6.1.1819, 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 the Pondicherry State. According to Sec.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 settlors and their descendants. The Regulation dated 24.4.1880 made the provisions of Code of Civil Procedure relating to civil status, namely, the declaration of births and deaths of marriage applicable to Pondicherry 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. 9. Prior to the applicability of Indian Succession Act 1956 in the State of Pondicherry, Christians were governed by customary law which was by then applicable to Hindus. Even such customary law applicable to Hindus has to be applied to the Christians also. However, the Hindu Succession Act 1956 would not apply to Christians as expressed in Sec.2(1 )(c) of the Hindu Succession Act 1956. So, the law of succession applicable to the Christians in the State of Pondicherry is not the succession Act as envisaged in the Hindu Succession Act 1956, but it is customary law amongst Hindus which was prevalent in the State of Pondicherry, namely, as the law of succession. Even in the present case, the law of succession applicable to the parties is Hindu customary law, prevalent in Pondicherry. Hence to decide the rights of the parties in this case, we have to find out what is the right of the plaintiffs in the properties of the 1st defendant till his death on the basis of Hindu customary law prevailed in Pondicherry State. 10. The learned Judge in the decision in Ramalingam v. Manicka Gounder, 1980(1) M.L.J. 350, has held as follows:"10. In the event, I think, it would be proper to hold that under the Hindu law as in vogue in Pondicherry all properties held by a father in a joint family are his absolute properties, whatever might be their origin or their modes of acquisition, and all of them devolve on his death in accordance with the law which governs succession to a male Hindu's absolute estate. This was the law as administered in Pondicherry when the Hindu Succession Act, 1956 came to be extended to that territory in 1963. 11. .. .. .. 12. This argument seems to be apparently aimed at reducing, if possible the plaintiff's decree from one-fourth share to an one-twelfth share, on the principle that some gain to the fifth defendant in this litigation would be better than none. I do not, however,accept the validity of this contention, based on the proviso to section 6 of the Act. In my view, the section as well as its proviso apply only to cases where a male Hindu dies possessed of an undivided interest in Mitakshara co-parcenary property, and not where he dies possessed of absolute property. The suit property, as already mentioned, has to be regarded as Arumugha's absolute property under the customary Hindu Law of Pondicherry. It cannot bear a different character merely on the introduction of the Hindu Succession Act, to that territory. There is no provision in the Act to bring about any such transformation. If, then, the property continues to retain its character as Arumugha' s absolute property even after the Act, it would follow therefrom that for determining the devolution to the property on Arumugha's death the appropriate provision to be looked for in the Act cannot be in section 6 but only section 8. Under the latter section, the property of a male Hindu would devolve on his sons and daughters in the absence of any other Class I heirs. And, under section10, the sons and daughters, as Class I heirs, would share the property equally as between themselves. The learned District Judge was, therefore, quite right in upholding the plaintiff's suit claim for an one-fourth share in the suit property as purchaser from Muniammal who was one of the four children left by the deceased Arumugha." 11. The Division Bench of this Court in the decision in Pandurangan v. Sarangapani, 1982(1) M.L.J., 143, held as follows:- "7. It is, in this context, necessary to find out the legal position applicable to the Hindus in the State of Pondicherry. Under the Hindu Law in force in that territory,Hindu sons did not acquire any interest in the father's property by birth, whether the property be the self-acquired property of the father or his ancestral property. This proposition was enunciated by the Superior Court of Appeal Pondicherry in Appeal No.326 of 1974 and has been referred to in Ramalingam v. Manicka Gounder (1980)2 M.L.J. 350. Ultimately, it is held in the above said decision that the plaintiff in the said case has no present right in the property so as to enable to get the claim as prayed for in the suit on the basis that the father is the absolute owner of the property. 12 The French writer Sanner in his book on Hindu Laws summed up the position as follows:- "By virtue of a more correct interpretation of custom, the theory of coparcenary system between father and sons in respect of the ancestral properties is abandoned in our establishment of Coramandal Coast. It is to the head of the family only, in reality, in the juridical sense of the word, the assets deriving from the ancestor belong, and he alone has capacity to exercise, in principal the right to dispose, which is conferred on him by owner's right." It cannot be disputed that the above said principle of law governs the right of the parties in these Appeals. So, the 1st defendant was the absolute owner of the properties. 13. In view of the discussion made in the above said decision, it is clear that though the 1st defendant got the property by partition with his father along with his brother Simon, it is his absolute property. During the lifetime of the 1st defendant, even if the 1st defendant and the plaintiffs lived together and the said joint living was known as "Regme De La Co-Propriete Familiale", after the death of 1st defendant, if the plaintiffs continue to live jointly without any partition between them, that is known as "Communaute". But, this cannot be construed as a joint family but it remains undivided with the unity in residence and joint living of residence. 14. The rights of the sons during the lifetime of the father has been decided by the courts in Pondicherry. The French writer Sanner in his work on Hindu Law has mentioned as follows:- " 'Today, by virtue of a more correct interpretation of custom, the theory of coparcenary system between father and sons in respect of the ancestral properties is abandoned in our establishment of Coramandal Coast. It is to the head of the family only, in reality, in the juridical sense of the word, the assets deriving from ancestor belong and he alone has capacity to exercise, in principle the right to dispose, which is conferred on him by owner's right." It is this principle of law which indisputably governs the right of the parties. It is thus clear that the plaintiff's father was the absolute owner of the properties. 15. The above said principle was being administered by Courts in Pondicherry which can be seen from the decision of the Superior Court of Appeal, Pondicherry in Appeal No.326 of 1964. The said Court consisting of 3 members of which Maharajan, J., as the President, held as follows:- " under Hindu Law, as it is in force in Pondicherry, Hindu sons do not acquire any interest in the father's property by birth whether the property be the self-acquired property of the father or his ancestral property." 16. In another decision of the appellate Court, in A.S.No.68 of 1981 on the file of the Principal District Judge of Pondicherry, David Annousamy, J., (as he then was), held as follows:- "The joint family system as it applied in the rest of the country has not been applied by the French courts here. They have found that the custom as it prevailed here consisted of a two-tier system (a) ' communaute' which exists between the male descendants of a Hindu, which communaute can come to an end by way of partition between the members; (b) 'propriete familiale' which governs the estate during the lifetime of the father. In the present case, the father is still alive. There is no 'communaute' possible there is only a 'propriete familiale'. 17. Again in O.S.No.12 of 1978, the learned Second Additional Sub Judge, Pondicherry, held on two issues that the 'communaute' is formed as per Hindu Law prevailing in Pondicherry where 'communaute' be presumed during the lifetime of father consisting of the father and his sons. Relying on Sanner's Hindu Law, the learned Judge held as follows:- "Issue No.1: As per Hindu customary law prevailing in Pondicherry prior to the introduction of Hindu Succession Act (30 of 1956) to the territory of Pondicherry in 1963 the communaute open between the male legitimate heirs indirect descendant line of a father of a family who died himself not being a; member of the joint family. This presumption of joint family is given by Sanner in his book 'Civil Law applicable to Hindus of French Settlements in India' at page 160. The above presumption is based on tacit consent between the male heirs of deceased father of family. The above union between persons and their properties is the result of quasi contract. Since the same is answered by the reference made by me as above to the book by J.Sanner. Issue No.2: According to presumption of 'communaute' as explained in issue No.1, the above communaute opens only between male " legitimate heirs of the deceased father of family." Therefore when the said father of the family is alive there is no question of communaute between him and his sons. Similarly there is no communaute between them which is dealt with by J.Sanner in his above mentioned book 'Civil law applicable to Hindus in French Settlements in India' from pages 14 9 to153. The family properties are divided in three categories. No.1, Ancestral properties (2) Properties acquired by the father and NO.(3) Properties acquired by sons. The latest position of customary law regarding the ancestral properties is that the father as chief of the family is the absolute owner of the above properties. He can dispose of them by way of liberalities such as donation, will, but these liberalities are subject to his disponible quota which is fixed at 1/8th and which can be claimed by the sons at the opening of his succession against the beneficiaries. The father is fully entitled to sell his ancestral property even for his exclusive interest. The above alienations can be attached by the sons if only they are feigned documents. According to Hindu Customary law the sons cannot ask for partition of the ancestral properties during the lifetime of their father, " because they can institute against the father proceedings under Chapters 1 and 3 of title 11 of Code Civil which matters of Depot and Sequestre (Deposit and Receiver) Regarding the properties acquired by father through his ancestral properties or through fund deriving from his own labour the sons cannot question if the father during his lifetime has chosen to dispose of the above properties. In this matter also the liberalities can be asked to be reduced to 1/8th which constitutes the disponible quota. Here the principle of reserve applies more to the properties acquired by the father with the help of the ancestral properties regarding disponible quota of father, i.e., 18th of the properties. Section Hindu Law by Leen Sorg page 198-199. Regarding the third category of the properties acquired by the sons, it is the settled principle of law that the properties acquired by the sons living under the father and residing with him are presumed to belong to the chief of the family unless the contrary proof is made. The properties donated to the son by other persons become personal properties of the son. The properties acquired by the son from his own income through separate industry, commerce or business can become personal properties of the son if it is proved that his income was never gathered or integrated with the income of the family. Regarding this kind of properties J.Sanner says that the admission of the father that one of his sons has acquired some particular property with his own income is binding on the other heirs when there is a dispute between various heirs of the father. Here also the reservatory heirs are allowed to prove that the declaration of the father is only a deed feigning the liberality which exceeds the disponible quota of the father." The above said decisions of the Pondicherry Courts appreciated and approved to decide the case in the above cited Division Bench judgment in Maniammal v. Mangalakshmy, 1986(1) M.L.J. 160. Hence, from the above it is clear that according to the Hindu customary law, sons cannot ask for partition in the property of the father. 18. Learned Senior Counsel appearing for the respondents, relied on certain provisions in French Civil Code, as amended up to1906, translated into English, in support of his submission that the father can distribute and partition the property between his children and the descendants. Learned counsel made such a submission only to support the case of the plaintiffs that they are entitled to the property allotted to them under the partition deed Ex.A5, dated 15.3.1971. As found earlier, the sons have no right to claim partition from their father, as they are not having any pre-existing right in the property, in view of the fact that the father got absolute title to the property. So even according to Code No.1075 of the French Code, the father is enabled to distribute and partition his property between the children and the descendants. Under Code No.1076 of the Code, such a partition has