Theiry Santhanamal vs Viswanathan .

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.

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.

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.

26) We may reproduce Articles 931, 1075, 1076 and 1077 of the French Code at this juncture:

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.

JANUARY 18, 2018.

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