NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3227 of 2006

THEIRY SANTHANAMAL .....APPELLANT(S)

VERSUS

VISWANATHAN & ORS. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

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.

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  brothers

(respondent nos. 4 and 5) under the Partition Deed dated March

15, 1971, sold his 1/3rd share in the suit property to the appellant

herein  vide  registered  Sale  Deed  dated  December  11,  1980.

Thereafter, on December 11, 1980, respondent no. 4 also sold his

1/3rd share in the suit property to the appellant on the basis of the

joint  allotment  of  the  suit  property  under  the  deed of  partition

dated March 15, 1971. Even respondent no. 5, while he was still

minor, executed a sale deed in  favour  of  the appellant,  acting

Civil Appeal No. 3227 of 2017 Page 3 of 23

through respondent no. 6 as his guardian in respect of his 1/3 rd

share in the suit property.   

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.

11) Respondent nos. 1 and 2 resisted the suit  by contending

that  decree  passed in  O.S.  No.  70  of  1974 was valid  decree

which was not obtained by fraud or misrepresentation and since

Oubegaranadin  was  the  absolute  owner  of  the  properties  in

question he had right to sell the same and, therefore, sale deed

executed in their favour in respect of property nos. 76C and 76D

was valid.  The appellant also resisted the suit by contending that

he had purchased the property from respondent nos. 3 to 5 for a

Civil Appeal No. 3227 of 2017 Page 6 of 23

valuable consideration and had also paid the full consideration.

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.

12) On the basis of pleadings, issues were drawn by the trial

court.  Parties led their evidence and after hearing the arguments,

the trial court passed the judgment and decree dated January 17,

1986 holding that decree passed in O.S. No. 70 of 1974 was valid

since no prejudice had been caused to the interest of the then

minors,  i.e.,  respondent nos. 3 to 5 herein.  He also held that

three sale deeds executed by respondent nos. 3 to 5 were not

under coercion but were executed to meet the family debts and

out of necessity.  Since, respondent nos. 3 to 5 have been left

without any property, the learned Subordinate Judge, opined that

an additional 10% of the sale consideration for the suit property

and 5% of the sale consideration for the land be paid over by the

appellant and respondent nos. 1 and 2 to respondent nos. 3 to 5

and on the said basis, quantified the sum to be paid.

13) Aggrieved by the partial decree of suit, as full relief prayed

for not having been granted, respondent nos. 3 to 5 preferred the

appeal (A.S. No. 1052 of 1986) on the file of the High Court of

Civil Appeal No. 3227 of 2017 Page 7 of 23

Madras.   Respondent  nos.  1  and  2  preferred  cross-objection

insofar as the 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 and 2

filed LPA Nos. 113 to 115 of 1999 before the Division Bench of the

Civil Appeal No. 3227 of 2017 Page 8 of 23

High Court.  These appeals are allowed by the Division Bench

vide impugned judgment dated March 04, 2004 in the following

terms:

“20.  In view of the foregoing discussion, the judgment and decree allowing the appeal in A.S. No. 1052/86 is set aside.  Equally the dismissal  of  Cross Objection filed  by  the  Appellant  regarding  the  levy  of compensation  cannot  be  sustained,  as  the  Learned Judge himself found that such a decree for damage by the  trial  court  cannot  be  sustain.   Though  the appellants have challenged the judgment and decree made in A.S. No. 335/1987 filed by the 10th defendant, the appellants are not aggrieved persons and hence we are inclined  to  dismiss  the appeal  in  L.P.A.  No. 114/1999.   Accordingly, L.P.A.  Nos.  113  and 115 of 1999  are  allowed  and  L.P.A.  No.  114/1999  is dismissed.  No costs.”

16) The High Court has held that by Regulation dated January

06,  1817,  the French Code was applicable  and by Regulation

dated April 24, 1880, Civil Procedure Code was made applicable

to Puducherry.  As per the said French Code, customary Hindu

Law  was  applicable.   Applying  that  law,  the  High  Court  has

concluded that since Oubegaranadin was the absolute owner of

the said property, as per Hindu law sons cannot seek partition in

the property of their father.  Therefore, the Partition Deed dated

March 15, 1971 was not a valid instrument and the findings of the

Single Judge that Oubegaranadin had lost his right by virtue of

partition deed is contrary to law.   

Civil Appeal No. 3227 of 2017 Page 9 of 23

17) It  may  be  mentioned  at  this  stage  that  the  entire  suit

property belonged to Oubegaranadin absolutely, which fell in his

share  after  partition  between  him  and  his  brother  Simon.

However,  Oubegaranadin  partitioned  the  said  property  by

executing Deed of Partition dated March 15, 1971.  Under this

partition  deed,  some  of  the  properties  were  given  by

Oubegaranadin  to  his  sons,  namely,  respondent  Nos.  3  to  5.

Respondent Nos. 3 to 5, therefore, claim their right on the basis

of this partition deed.  No doubt, Oubegaranadin got that partition

deed cancelled by filing a suit in this behalf ad obtaining decree

therein.  However, as per the High Court, the first question was as

to whether respondent Nos. 3 to 5 were entitled to claim any right

under the partition deed dated March 15, 1971.

18) The High Court noted that the family of Oubegaranadin, and

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

Civil Appeal No. 3227 of 2017 Page 10 of 23

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 governed by

the customary Hindu Law.

19) The  High  Court  also  pointed  out  that  though  Hindu

Succession Act, 1956 was made applicable in Puducherry, insofar

as Christians are concerned, they continued to be governed by

customary  law,  inasmuch  as,  Hindu  Succession  Act  was  not

applicable to Christians by virtue of Section 2(1)(c) thereof which

made the Act applicable only to Hindus.  Therefore, Christians in

Puducherry  continued  to  be  governed  by  customary  law,  i.e.

customary Hindu law that was prevalent in Puducherry as the law

of succession.  Thus, rights of the parties were to be determined

on the basis of the said Hindu customary law.  Taking extensive

Civil Appeal No. 3227 of 2017 Page 11 of 23

note of this customary Hindu Law in Puducherry, as per various

decisions as well  as Book on Hindu Laws by French writer  J.

Sanner, the High Court has come to the conclusion that during

the  lifetime  of  the  father,  sons  cannot  ask  for  partition  of  the

ancestral property or property of the father.  It further held that still

the father is entitled to distribute or give away his properties to his

children.  However, according to the High Court, it could not be

done in the manner it was done in the instant case and Partition

Deed dated March 15, 1971 was not a valid document.

20) Before  proceeding  further,  it  would  be  appropriate  to

mention as to how different parties were described in the original

suit and their respective position in these proceedings:

Name In Original Suit Before this Court

Oubegaranadin Defendant No.1 Since deceased

Thierysanthamal Defendant No.10 Petitioner

Viswanathan Defendant No.4 Respondent No.1

A Andal Defendant No.5 Respondent No.2

Savarimouthurayan Plaintiff No. 1 Respondent No.3

John Kennedy Plaintiff No. 2 Respondent No.4

Robert Kennedy Plaintiff No. 3 Respondent No.5

Marie Rosalie Defendant No.2 Respondent No.6

Kumar Manjini Defendant No.3 Respondent No.7

Babu Defendant No.8 Respondent No.8

RathinavelMudaliar Defendant No.9 Respondent No.9

Mrs Elizabeth Defendant No.6 Respondent No.10

Civil Appeal No. 3227 of 2017 Page 12 of 23

(Selvanthan)

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  partition.   On  the  contrary,

Oubegaranadin  himself  executed  the  partition  deed.

Therefore, this partition deed was valid in law.  The High  Court

wrongly applied French Code and Hindu Succession Act had

already come into force in Puducherry.   

(c) The  decree  in  OS  No.  70/1974  is  not  binding  on  the

plaintiffs as Order XXXII Rule 7 CPC had not been followed.

Civil Appeal No. 3227 of 2017 Page 13 of 23

Submission in  this  behalf  was that  sub-rule 1A was

added to Rule 7 of Order XXXII by the Act of 1976.  In Tamil

Nadu, earlier State of Madras (Puducherry), amendment to

this effect was inserted way back in the year 1910, which is

in the following form:

“(1A)  Where an application is made to the Court for leave to enter into an agreement or compromise or for withdrawal of a suit in pursuance of a compromise or for  taking  any other  action  on  behalf  of  a  minor  or other person under disability and such minor or other person under disability is represented by counsel  or pleader, the counsel or pleader shall file in Court with the  application  a  certificate  to  the  effect  that  the agreement or compromise or action proposed is in his opinion for  the benefit  of  the minor  or  other  person under which a minor or other person under disability is a party shall recite the sanction of the Court thereto and shall set out the terms of the compromise as in Form No. 24 in Appendix D to this Schedule.” (Dis No. 1647 of 1910)”

On the basis of the above, submission was that the

judgment  and decree in  OS No.  70 of  1974 was passed

without  following the procedure contained in  Order  XXXII

Rule 7 CPC and, therefore, not valid in law.  According to

the learned senior counsel, the decree in the said suit was a

consent decree and, therefore,  leave of  the Court  should

have been obtained, as required under Order XXXII Rule

7(1A) CPC.

(d) The  mortgage  deed  dated  October  22,  1979  A10  by

Defendant Nos. 1 to 4 and 5 is not valid as Defendant No.1

Civil Appeal No. 3227 of 2017 Page 14 of 23

has no title;

(e) The sale deed dated 1980 by Defendant No.1 in favour of

Defendant Nos. 4 and 5 is not valid.

(f)The sale deeds by plaintiffs to Defendant No.10 are valid

(g) In view of the fact that Defendant No.4 and Defendant No.5

are barred by the principles of res judicata, the findings of the

Single Judge cannot be challenged by them.  He also cited the

following judgments in support of the submission predicated on

res judicata:  Badri Naraya Singh v. Kamdeo Prasad Singh

& Anr.1; Lonankutty v. Thomman & Anr.2; Narayana Prabhu

Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu

(Dead) By LRs.3; and Sri Gangai Vinayagar Temple & Anr. v.

Meenakshi Ammal & Ors.4

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,

1  AIR 1962 SC 338 2  (1976) 3 SCC 528 3  (1977) 2 SCC 181 4  (2015) 3 SCC 624

Civil Appeal No. 3227 of 2017 Page 15 of 23

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 was the

product of the absolute right of the father, he had the authority to

recall it.  This he did through judicial process.  In the aforesaid

circumstances, the transfer or alienation of property effected by

the father towards the family necessity would stand on a higher

footing  compared  to  the  alienation  made  by  the  abovesaid

respondents without any authority whatsoever.

23) He also submitted that if only respondent Nos. 3 to 5 have

any right to demand a share in the property in question during the

lifetime of father, the question of applicability of Order XXXII Rule

7 CPC will arise.  In the absence of any such right, no claim can

be founded only on the basis of alleged procedural impropriety.

According  to  him,  following  salient  features  of  the  case  were

material to decide the issue:

(a) This is a case admittedly governed by the customary Hindu

Civil Appeal No. 3227 of 2017 Page 16 of 23

law as was obtaining in Puducherry.

(b) Under  the  customary  Hindu  Law  in  Puducherry  (which

corresponds in some respects to the position obtaining in the

Dayabagha School),  the father is the absolute owner of  the

property in his hand.  The sons do not derive any right in the

family property by reason of their birth which is different from

the position in the Mitakshara School.  In other words, the sons

rights arise on the demise of the father and not prior thereto.

Consequently, anything happening during the lifetime of  the

father does not confer any right or interest in them.

(c) The father has, thus, an unfettered power of disposition of

the property in his hands.  The sons do not have the right to

demand partition or to ask for any share in the family property

during the father’s lifetime.  They do not inherit any interest or

right  during the lifetime of  the father.  Consequently, during

their lifetime, they have no interest in any estate which can be

defended or protected.

(d) In the above context, the principle of conflict of interest or

adverse interest dealt with in Order XXXII Rules 3A and Rule 7

CPC relevant in other schools of law would not be relevant in

proceedings  involving  minors  in  the  Union  Territory  of

Puducherry,  particularly  concerning  cases  involving  the

Civil Appeal No. 3227 of 2017 Page 17 of 23

application of customary Hindu Law.

(e) The plaintiffs have not placed reliance on the provisions of

the French Civil Code in support of the argument that insofar

as the partition deed dated March 15, 1971 is concerned, it

complied  with  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

Civil Appeal No. 3227 of 2017 Page 18 of 23

donations  inter  vivos  and  Wills  and  the  partitions  made  by

donation inter vivos must include only those properties which the

donor  then possesses.   In  respect  of  this  assertion,  the High

Court has referred to Article Nos. 1075 and 1076 of the French

Code.  From the aforesaid, the High Court has observed that the

father can distribute 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.

26) We may reproduce Articles 931, 1075, 1076 and 1077 of

the French Code at this juncture:

“931.  Every  instrument  containing  a  donation  inter vivos shall be executed before notaries in the ordinary from the contracts, and the original shall remain with them; otherwise such instruments shall be void.  Civ. C. 894, 948, 949, 1339, 1340.

1075. Fathers and mothers and other ascendants may make  a  distribution  and  division  of  their  property between their  children  and descendants  Civ.C.  745, 914, 968, 1076 et seq.

1076.  These divisions may be made by donations or  by  wills  in  accordance  with  the  formalities conditions and rules laid down for donations inter vivos and wills.

1077. If all the property which are ascendants leaves at the time of his death has not been included in the division, such property as has not been included in the division, such property as has not been included shall be divided according to law.  Civ. C. 723 et seq., 815

Civil Appeal No. 3227 of 2017 Page 19 of 23

et seq., 887 et. seq.”

27) Questioning the aforesaid approach of the High Court, the

submission of the learned senior counsel for the appellant was

that  the  High  Court  committed  error  in  deciding  the  issue  by

applying the French Code, which was not applicable in the instant

case.   As  per  him,  the  Hindu  Succession  Act  was  made

applicable to the territory of  Puducherry in the year  1963 and,

therefore, relationship of the parties was governed as per the said

Succession Act and not the French Code.

28) The aforesaid argument is misconceived for more than one

reason.  First  of  all,  the argument ignores that Oubegaranadin

and his sons (respondent Nos. 3 to 5) are Christian by religion.

Therefore, 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.

29) We  also  find  that  the  plea  to  the  effect  that  Hindu

Civil Appeal No. 3227 of 2017 Page 20 of 23

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

governs  the  succession  of  the  property  when  a  Hindu  dies

interstate.  The manner in which his properties would devolve on

his successors is laid down in the scheme of the said Act.  Here,

the plaintiffs did not claim (nor could they claim) that they became

owner of the property by way of succession as per the provisions

of Hindu Succession Act.  On the contrary, they claimed right in

the property on the basis of Partition Deed dated March 15, 1971

which  was  executed  by  their  father,  namely,  Oubegaranadin

during his life time.   

30) Therefore, the main issue is as to whether such a partition

Civil Appeal No. 3227 of 2017 Page 21 of 23

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 brothers.  As on that date,

French Code governed the field as per which customary Hindu

Law applies.  It is not disputed that Oubegaranadin had become

the absolute owner of the property in question.  Therefore, the

moot question is as to whether he could give away portions of

these properties to his sons by entering into a partition deed like

the one he executed on March 15, 1971?  Even if French Code is

not  applied,  the  aforesaid  question  cannot  be  answered  with

reference to the provisions of the Hindu Succession Act.  Partition

Deed  can  be  entered  into  between  the  parties  who  are  joint

owners  of  the  property.   In  case  the  father,  namely,

Oubegaranadin  herein  wanted to  give property  to  his  sons,  of

which  he  was  absolute  owner, it  could  be  done by will  or  by

means of gift deed/donation etc.  The High Court was, therefore,

right in observing that such a partition deed has to be construed

either a gift deed or family settlement.  However, the claim of the

plaintiffs was not on that basis.  It was not stated anywhere as to

whether necessary formalities, conditions or rules laid down for

Civil Appeal No. 3227 of 2017 Page 22 of 23

donation inter vivos or gift so as to enforce said document were

complied  with  in  the  absence  of  any  pleadings,  obviously  no

evidence was produced to this effect.  

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.  

.............................................J. (A.K. SIKRI)

.............................................J. (ASHOK BHUSHAN)

NEW DELHI; JANUARY 18, 2018.

Civil Appeal No. 3227 of 2017 Page 23 of 23