IN THE HIGH COURT OF JUDICATURE AT MADARAS DATED: 22.6.2006 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA A.S.No.908 of 1991 and Review Appln.No.145/2003 .... 1. Anna Marie Bernard Joseph 2. Santha Ruban Louis Joseph (both legal representatives of the deceased Bernard Joseph) 3. Ashoka Mauriya Pallava Historical Trust, Pondicherry, rep. by its Trustee, Anna Marie Bernard Joseph, No.167-B,Mahatma Gandhi Road, Pondicherry. Cause title of the Appellants accepted vide order dated 15.11.91 made in CMP.No.14724/91 ... Appellants/plaintiffs vs. 1. Lady Lourdomariammal alias Pappayammal 2.Victor Moeliar Alias Victor Djegnadin called also Sinnaya 3.Antoine Radjabather Modeliar 4.Boopathy Modeliar 5.Mouttou Modeliar 6.Lourdusamy Modeliar 7.Joseph Modeliar @ Jothi Mudaliar https://hcservices.ecourts.gov.in/hcservices/ 8.His Grace Archbishop Apostolic Missions, Pondicherry. 9.The Parish Priest of Our Lady of Lourdes at Canuvapet, Villianur. 10.The Commissioner of Mudaliarpet Commune, Mudaliarpet Commune Panchayat, Mudaliarpet, Pondicherry. 11.Louis Sinnaya Aroquisamy Mudaliar 12.Louis Pragasa Kannaya 13. Jeanate Rosanee 14. Aroquiamarie 15. Marie Coyundai Ammal 16. Swadeshi Cotton Mills, Orleanpet, Pondicherry. 17. United Commercial Bank, rep. by its Manager, Head Office Mahe Labourdonais Street, Pondichery. 18. Rathina Marie (died) 19. Kamala Marie Antoineeth 20. Thayarammal 21. Lourde Thanga Marie Vilva 22. Marie Tayarammal Pushpa 23. Vedavalli Sakunthala 24. Louis Aroquiasamy 25. Pillai Appavou Joseph 26. Elisabeth 27. Sakunthala https://hcservices.ecourts.gov.in/hcservices/ 28. Radjayammalle 29. Ammakannu 30. State Bank of India, rep. by Manager, Suffren Street, Pondicherry. 31. Director General, Archaeological Survey of India, Janpath, New Delhi-1. 32. Union of India by Authorised Officer, Land Reforms Pondicherry. 33. J.Muthiah Ambroise 34. Mrs.Jaya Ambroise Liguori 35. J.Victor Jaganathan Ambroise @ Jagan 36. A.John Ambroise RR33 to 36 brought on record as LRs of the deceased 18th respondent as per order of Court dated 9.7.2003 made in CMP.No.17415/98. Cause title amended vide order dated 22.06.06 made in CMP.No.2974/06 ... Respondents. Appeal filed against the judgment and decree dated 9.5.1991 in O.S.No.2 of 1978 on the file of Principal District Judge, Pondicherry. For appellants: Mr.G.Masilamani, Sr.counsel for M/s.M.Sriram,D.Rajendran & D.Balaraman For 12th respondents: Mr.T.V.Ramanujam, Sr.counsel for M/s.T.V.Krishnamachari & V.K.Elangovan Mr.T.R.Rajagopal, Sr.counsel for M/s.T.R.Rajaraman.. R.18, 33 to 36 https://hcservices.ecourts.gov.in/hcservices/ Mr.P.S.Raman, Sr. Counsel for M/s.D.Rajagopal & S.Annamalai... R11 Mrs.Meera Gupta .. R31. Mr.Krishnasrinivas for M/s.Ramasubramaniam Associates.. R16 Mr.R.Subramanian R 29 Mr.R.Bharanidharan, Adv.-Commissioner. .... JUDGMENT (Delivered by P.D.DINAKARAN,J.) .... I.JUDGMENT & DECREE UNDER APPEAL This appeal is directed against the judgment and decree dated 9.5.1991 made in O.S.No.2 of 1978 on the file of Principal District Judge, Pondicherry by which the suit filed by the plaintiffs was dismissed. 1.1. For sake of convenience, the parties are hereinafter referred to as arrayed in the plaint. II.CASE OF THE PLAINTIFFS 2. The case of the plaintiffs is, in brief, as follows:- 2.1. One Arockiam was the descendant of the Royal family of Pallavas. He left the fortress of Anantal at Karthanpeth, also known as Korthampeth, which was in a state of ruin, in order to come and settle at Pondicherry. At that time, he was provided with gold jewels possessed by him and his brothers. Then, he acquired properties. 2.2. His fifth degree descendant, Louis Aroquiassamy Mudaliar made a mystic will dated 21.1.1933 which was opened by the President of the Court on 8.7.1935 and ordered to be deposited in the Office of Mr.Vandjilinga Saminadin, Notary. 2.3. The said Louis Aroquiassamy Mudaliar died without issues. Some of the brothers of Arockiam had issues, who got some descendants and at present, they are 143 in number. https://hcservices.ecourts.gov.in/hcservices/ 2.4. Bernard Joseph, husband of the plaintiff Anna Marie, centralised into his hands the rights of all collaterals of Louis Aroquiassamy Mudaliar by obtaining transfer of rights from them and he exercised his rights on the estate of Louis Gnana Aroquiassamy Mudaliar. 2.5. Bernard Joseph had no intention to appropriate the properties for himself, but he intended to allot an amount of compensation to each and every collateral, besides creating a trust called, "Asoka Maurya and Pallava Historical Trust". 2.6. With regard to Pallava Naick family, an article, "Pallava naicks of Korthampeth" was written by Dr.M.Aroquiassamy and approved by the Royal Asiatic Society of Calcutta whereunder the family of Arockiam is traced to the Pallava Naick of Korthampet. 2.7. The second will executed by Louis Gnana Aroquiassamy Mudaliar dated 9.2.1935 was registered and probated and letters of administration was granted by the District Court at Cuddalore in O.S.No.11 of 1936. But, the mystic will dated 21.1.1933 executed by him is a false document. The defendants suppressed the truth and were asserting right on the basis of the false will. However, the will dated 9.2.1935 determines the rights between the parties and supersedes the earlier mystic will dated 21.1.1933. 2.8. Papayee ammal (first defendant) never got any absolute right in the suit properties left by Louis Gnana Aroquiassamy Mudaliar, but she got only a life interest or limited interest as per will dated 9.2.1935. 2.9. The said Papayee ammal died on 23.6.1965 and other legatees predeceased her. Hence, the reversioners of Louis Gnana Aroquiassamy Mudaliar have a clear and absolute right to the suit properties, which are now in the hands of the plaintiffs. 2.10. The mystic will dated 21.1.1933 deposited on 12.7.1935 in the office of Vandjilinga Saminadin is null and void. The second defendant, who had no right, disposed of the properties. The first defendant, who had the right only over the usufructs, also sold the properties. The transfer deeds and sale deeds must be declared void. The special bequests made in favour of other defendants should also be declared null. 2.11. The State Bank of India is added as a party since the jewels which were taken inventory by the Court Commissioner have been kept in safe locker pending suit. https://hcservices.ecourts.gov.in/hcservices/ 2.12. The Director of Archaeological Survey of India is also added as necessary party for enabling the court to consider the historical events arising out of the acquisition of suit properties. 2.13. Hence, the suit was filed with the following prayer:- (i) for declaration that the mystic will dated 21.1.1933 said to have been executed by Louis Gnana Aroquiassamy on behalf of the requisite parties, opened by the President of Court of First Instance on 8.7.1935 and as per order of the said Court deposited the said will in the office of Mr.Vanjilinga Saminadin, Notair is null and void; (ii) for declaration of forfeiture of the right of Lourdemariammal alias Papayammal who has abused of her right of usufruct under the forged and mystic will dated 21.1.1933; (iii)for declaration of various sales, donations, mortgages, and letting out the various consents and agreements on behalf of third parties by the first requisite party as well as the second requisite party who were without right to do it, by virtue of the impugned mystic will dated 21.1.1933, are null; (iv) for declaration that the requesting party in her above capacity is of exclusive and incommutable owner of the properties depending on the estate of Louis Gnana Aroquiasamy Mudaliar; (v) to appoint a Receiver in Order to manage and administer the properties depending on the estate of Louis Aroquiassamy Mudaliar in order to preventing a bigger squandering of properties which pursue constantly. In spite of the scandal caused by the acting so reprehensible, with mission for the Receiver to deposit in the State Bank of Pondicherry the money coming from the income of the said properties which will be remitted into the hands of the person to whom it will be by justice ordered, and to bear sentence the requisite parties to the costs and under all useful reserves; (vi) to direct the defendants to remit the income of the properties into the hands of the 2nd plaintiff in the event of 1st plaintiff succeeding in her claim for absolute title; and https://hcservices.ecourts.gov.in/hcservices/ (vii) for costs. III. CASE OF CONTESTING DEFENDANTS 3. The case of the contesting defendants, as culled out from the written statements filed by them, is as follows: 3.1. There is no plaint filed as required in law to complete the formality of institution of proceedings before the civil Court under the Code of Civil Procedure. Hence, the proceedings may be rejected as one with no legal sustainability to be retained on record as a suit. 3.2. The identity of the original plaintiff himself is not made out. Anna Marie Bernard Joseph, described as a Power of Attorney of Bernard Joseph, is shown to be a plaintiff. If a plaintiff is to be represented by an agent whose appearance on behalf of the principal is permitted as per procedure of the Court, then such description is to follow. But, it is not made clear in the plaint who is the plaintiff. 3.3. Bernard Joseph is said to be having a representative capacity to represent 143 persons whose names and identity are not anywhere described, nor the authorisation given to Bernard Joseph is disclosed. 3.4. When Bernard Joseph himself is said to be a representative of others, who are claiming to hold interest in the properties, he cannot further delegate the alleged power to another person, namely, his wife Anna Marie Bernard Joseph. There is no permission so far granted by the Court to the plaintiff for appearance on behalf of anybody. 3.5. When Bernard Joseph claims that he is not intending to appropriate for himself all the properties and is creating a society for the pursuit of education of Historical Dynasty of Pallavas, he is neither a beneficiary under the trust, nor a person interested in the relief sought for under the so-called trust yet to be formed, nor a person interested in the properties. Therefore, he has no locus standi to institute any proceeding. 3.6. Bernard Joseph has to be non-suited on the sole ground of approaching the court with champertous agreements for the purpose of a speculative litigation. 3.7. The very existence of Arockiam as Pallava at any point of time is denied. Such a claim of descendency from the Royal family of Pallava is also denied. In this case, the alleged occurrences of https://hcservices.ecourts.gov.in/hcservices/ events have no proof and by inference some sequences of events are stated to be history which means that there is no proof for the alleged events constituting history. The plaintiffs have no proof as to the existence of Arockiam as one connected to Pallava Naickas. There is no historical reference showing that a Pallava King or his descendent anywhere lived in the village Korthampet in Sengam taluk or at Anantal. 3.8. The article, "Pallava Naicks of Korthampet" does not explain the connection between the child born to a pregnant woman who was spared in the battle, and the alleged Arockiam. The article does not refer to any Arockiam alleged to be the ancestor of Louis Gnana Aroquiassamy Mudaliar. The article is an unauthenticated version of an individual which has no basis at all. 3.9. The photographs so filed will, by no means, constitute any material proof to sustain the allegation that there existed one Arockiam at Korthampet and Louis Gnana Aroquiassamy Mudaliar was his descendent. Neither the existence of the alleged ruined temple, nor ruined fortress in the village of Anantal is proved by the photographs. 3.10. Further, when the first plaintiff filed petition for Assistance Judiciaire, he claimed that there was one Arokiasamy, an alleged descendent of Royal family of Pallavas. In the pauper petition also in more than one place, he referred to Arokiasamy and not Arockiam. However, when he presented the Assignation, he used Arockiam instead of Arokiasamy. 3.11. There is no record to indicate the act of migration of Arockiam to Pondicherry. There is no specific averment as to who provided him the jewels allegedly taken by him when he came to Pondicherry. 3.12. All rights of action are extinguished by prescription after thirty years. The basis for the claim of the plaintiffs is laid approximately one hundred and sixty years ago and hence, such a claim is barred. In the year 1973 by way of amendment, the first plaintiff claimed that the mystic will dated 21.1.1933 is false. In the original Assignation dated 29.4.1965 and in Assistance Judiciaire he did not make any such claim. Hence, this plea became barred even in the year 1973. The testator of the will dated 21.1.1933 died on 24.6.1935 and the will should have been challenged on or before 1965, but no action was taken within time. The plea now made in the year 1985 is therefore barred by limitation. 3.13. The second plaintiff trust is a creation lis pendens and it cannot have any independent right. It cannot claim to be a collateral of Louis Gnana Aroquiassamy. Hence, the challenge of the https://hcservices.ecourts.gov.in/hcservices/ will dated 21.1.1933 by the 2nd plaintiff is also barred. The notarial will dated 21.1.1933 was executed by Louis Gnana Aroquiassamy Mudaliar in respect of his properties at Pondicherry, whereas the will dated 9.2.1935 is in respect of his properties in Tamil Nadu. In respect of the properties in Tamil Nadu, the will dated 9.2.1935 got probated in the District Court of South Arcot in O.S.No.11/1936 and letters of administration was obtained by Pappayee ammal. 3.14. The properties in Pondicherry belonging to the Estate were originally acquired by Sinnaya Mudaliar and his sons and grandsons in between 1880 and 1935 out of their personal business income and savings. So also, the properties in Tamil Nadu were acquired by Louis Gnanapragasa Mudaliar between 1900 and 1920. The property at Madras was purchased by Louis Gnana Aroquiassamy Mudaliar and his brother Louis Gnana Sinnaya alias Cannaya on 2.2.1925 from one Frank Gibson. Hence, all the properties did not belong to Louis Gnana Aroquiassamy Mudaliar in entirety. He was only a co-owner with his brother. 3.15. Louis Gnana Sinnaya alias Cannaya died on 25.8.1927 intestate and his widow Saradambal became entitled to his half share. She made a notarial will at Pondicherry on 9.4.1942 in respect of her half share in favour of Victor Jegannathan, father of the 11th defendant (Louis Sinnaya Arokiasamy Mudaliar) and defendants 12 and 18. In respect of other half share, Louis Gnana Aroquiassamy Mudaliar remained to be the owner and the first plaintiff, who claims right over the estate of Louis Gnana Aroquiassamy Mudaliar could only claim right over a half share of the estate. 3.16. The jewels in court custody are personal properties of Victor Jegannatha Mudaliar who acquired some of them out of his income and inherited some jewels from Saradambal and Pappayee ammal. The jewels are not subject matter of bequest either under the will dated 21.1.1933 or under the will dated 9.2.1935. By inheritance, the jewels became the properties belonging to defendants 11, 12 and 18. 3.17. The will dated 9.2.1935 was probated and acted upon. Louis Gnana Aroquiassamy Mudaliar executed the mystic will dated 21.1.1933 and the Notaire recorded the presentation of the will by Louis Aroquiassamy Mudaliar. On the death of testator on 24.6.1935 the Notaire presented the will before the Court of First Instance on 8.7.1935 and the Court opened the will and ordered it to be registered. There is no question of superceding of the will dated 21.1.1933 as claimed by the plaintiffs. The will dated 9.2.1935 relates to the properties situate in South Arcot. Hence, no question of cancellation of the will dated 21.1.1933 would arise. 3.18. The first plaintiff is a third party and there is no https://hcservices.ecourts.gov.in/hcservices/ question of any reversionary right in his favour. By will dated 21.1.1933, Louis Gnana Aroquiassamy Mudaliar bequeathed his properties to the church, defendants 8, 9 and 3 to 7. He gave his residuary properties to his four legatees, viz., his brother-in-law Duraiya, nephew Victor Jegannatha Mudaliar, wife Pappayee ammal and brother's wife Saradambal. The testator gave life interest to the abovesaid four legatees and absolute estate to the male issues of Victor Jegannathan, viz., defendants 11 & 12 and Divianathan alias Duraiya Mudaliar. Duraiya Mudaliar died intestate without issues. Vedavalli alias Sagunthala, widow of Duraiya died on 10.7.1941. Saradambal died on 28.12.1943 without issues. Pappayee ammal died on 23.6.1965 without issues and Victor Jegannathan died on 8.8.1965 leaving the defendants 11 and 12 as male issues. Therefore, the estate of Louis Gnana Aroquiassamy Mudaliar in Pondicherry devolved on the defendants 11 and 12. 3.19. In respect of properties at South Arcot District and Madras city, Louis Gnana Aroquiassamy Mudaliar by will dated 9.2.1935 gave life interest to his wife Pappayee ammal and absolute ownership to Divianathan alias Duraiya Mudaliar, Vedavali alias Sakunthala and Annou Kuzhandaiammal. Of these legatees, Duraiya died on 11.9.1935 leaving his right to his widow Vedavalli alias Sakunthala and sisters Pappayee ammal and Saradambal. Vedavalli died leaving her brother Victor Jegannathan and one another who inherited her properties. Pappayee ammal executed a registered will on 21.10.1959 giving her right to Victor Jegannathan. Saradambal executed a Notarial will on 9.4.1942 bequeathing her right to Victor Jegannathan. Victor Jegannathan also inherited the interest of Vedavalli alias Sakunthala who died intestate without issues. Annou Kulandai ammal entitled to 1/3rd of the bequest made a will on 25.1.1942 in favour of her sons Victor Jegannathan and Antoine Rajabathar. Hence, the right created under the will dated 9.2.1935 became the subject matter of family arrangement between the beneficiaries, viz., Victor Jegannathan, Antoine Rajabathar and others. The contrary claim of the 1st plaintiff is false. 3.20. The plaintiffs' claim that Louis Gnana Aroquiassamy Mudaliar is a 5th degree descendent of Arockiam is denied. Neither the first plaintiff, nor the alleged 142 persons are collaterals of Louis Gnana Aroquiassamy Mudaliar. 3.21. There is no trust legally created as claimed by the first plaintiff. The creation of the trust is lis pendens and it gains no legal validity. The creation of the trust does not vest in it any legal status as a person and therefore, the 2nd plaintiff cannot be a person on record and has to be deleted. https://hcservices.ecourts.gov.in/hcservices/ 3.22. The first plaintiff has no right to claim the entire suit properties for himself since he has not filed the suit in representative capacity. He can, at the most, claim his 1/143 share in the suit properties. The averment by the 1st plaintiff that he had obtained transfer of right from 142 co-sharers is not correct. The alleged 142 collaterals did not relinquish their right in favour of the 1st plaintiff. The documents filed by the 1st plaintiff cannot be accepted as release deeds. 3.23. Anna Marie, wife of the 1st plaintiff, in her capacity, can be the power of attorney of her husband only and the alleged 142 co-sharers did not give any power to Anna Marie. The 1st plaintiff alone gave power to Anna Marie, that too, in his personal capacity and not in representative capacity of 142 co-sharers. 3.24. The first plaintiff has allegedly obtained release deeds from other collaterals with an undertaking and promise to pay Rs.5,000/- each if he succeeds in this case. The release deeds are not properly stamped and registered. 3.25. The genealogy chart furnished by the first plaintiff is only a fiction and there is no proof or basis for the same. 3.26. The court fee is not paid by each of the plaintiffs as required under law and hence, the suit cannot be sustained. There are misjoinder of parties also. 3.27. The 16th defendant had purchased the establishment Savana in 1956 itself and it did not undertake to discharge any debt and the 16th defendant is not liable to pay any amount either to Louis Gnana Aroquiassamy or to anybody claiming under him. 3.28. The 17th defendant, United Commercial Bank, Pondicherry, is an unnecessary party to the suit as no amount is lying in the name of Louis Gnana Aroquiassamy Mudaliar. 3.29. The first plaintiff launched the speculative litigation based on inferences drawn on surmises and hence, the suit is liable to be dismissed with exemplary costs. IV.ISSUES FRAMED & TRIED BY THE TRIAL COURT 4.On the basis of pleadings, the following issues were framed for trial: 1. Whether the suit filed by 1st plaintiff is in individual capacity or a representative suit according to law? https://hcservices.ecourts.gov.in/hcservices/ 2. Whether the plaint and the suit as framed by plaintiffs are valid and maintainable? 3.Whether the suit is barred by law including limitation and whether plaintiff's right and claim has been extinguished in law? 4. a) Whether there was any Arokiam of alleged Korthampet village, Chengam taluk of North Arcot District who migrated to Pondicherry 160 years ago leaving brothers at Chengam as averred in the plaint? b) If so, whether the said Arokiam lived with his brothers in any joint family of Hindu Law at the surroundings of Korthampet? c) If so, whether the said Arokiam migrated to Pondicherry with some jewels in gold and lived in a joint family as averred in the plaint? 5. Whether the said Arokiam was a descendent of Royal Pallava King according to facts and events as alleged by the plaintiff? 6. Whether the plaintiff No.1 and alleged 142 collaterals are the descendants of said Arokiam and his brothers of said Korthampet and if so, whether they lived a joint family of Hindu Law with the deceased Louis Gnana Arokiasamy Mudaliar? 7. Whether the suit valuation and court fee paid is correct and whether the 2nd plaintiff is liable for payment of any court fees? If so, to what amount? 8. Whether the plaintiffs have any legal right, competency and locus standi to dispute the challenge the mystic will dated 21.1.1933 executed by the deceased Louis Gnana Arokiasamy Mudaliar as false, forged and therefore null and void? 9. Whether the Notarial mystic will dated 21.1.1933 executed by late Louis Gnana Arokiasamy Mudaliar superseded by the will dated 9.2.1935 executed by Louis Gnana Arokiasamy Mudaliar? b) Whether the said Louis Gnana Arokiasamy Mudaliar has got any right to execute any will in respect of the suit properties? If so, whether the 1st plaintiff and other collaterals are entitled to any share? https://hcservices.ecourts.gov.in/hcservices/ 10. Whether the suit schedule properties belonged to the estate of Louis Gnana Arokiasamy Mudaliar and whether teh plaintiffs have any right or claim in the jewels removed from 163 and 164 M.G.Road, Pondicherry and kept in State Bank Lockers under orders of Court? 11. Whether all the alienations by sale or otherwise by the legatees under the will dated 21.1.1933 and 9.2.1935 are valid and binding on 1st plaintiff and other collaterals? 12. a) Whether the plaintiff can claim relief in respect of properties in the former British Indian Territory and for which probate was ordered on the will dated 9.2.1935 by Court of law? b) Whether teh plaintiffs are entitled to the whole estate both immovable and movable including the jewels in State Bank, Deposit in UCO Bank and Land Acquisition Compensation amount, etc.? 13. Whether the defendants have to deposit and remit the income from suit properties into the hands of persons to whom it will be judicially ordered? If so, to what period? 14. To what reliefs, are the parties entitled? V.FINDING OF TRIAL COURT ON ISSUES 5. Even though as many as 14 issues were framed, the trial Court mainly considered the question of maintainability and decided the suit against the plaintiffs. By judgment dated 9.5.1991, the trial Court dismissed the suit holding that the plaintiffs have no locus standi to file the suit. Aggrieved by the judgment and decree, the plaintiffs have preferred the above appeal. VI.CONTENTION IN THE APPEAL 6. In the grounds of appeal, the appellants/plaintiffs have raised almost all the points that were raised in the suit. 7. Pending appeal, the 12th respondent in the appeal filed miscellaneous petitions seeking for return of certain movable properties and this Court, by order dated 6.11.2003 in C.M.P.Nos.1090 of 2000, 3691 of 2002, 17708 and 17709 of 2003, directed interim custody of the movable properties in favour of some https://hcservices.ecourts.gov.in/hcservices/ of the respondents. Aggrieved by the said order, the 11th respondent in the appeal has filed Review Application No.145 of 2003. VII.POINTS FOR CONSIDERATION 8. The points for consideration in this appeal are: 1. Whether the suit as framed is within the time? 2. Assuming that the suit is within time, whether it is