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Theiry Santhanamal vs Viswanathan . on 18 January, 2018

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)

JUDGMENT

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
Signature Not Verified

inherited by the two sons of Mr. Mariasusai Mudaliar, came to be
Digitally signed by
ASHWANI KUMAR
Date: 2018.01.18
17:11:19 IST
Reason:

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 1/3 rd 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 10 th 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)
Defendant No.6
Joseph Elango Respondent No.11
(Selvanthan)
Defendant No.6
Albert Respondent No.12
(Selvanthan)
Defendant No.6
Francis Respondent No.13
(Selvanthan)
Defendant No.7
Rukmaniammal Respondent No.14
(M.B. Vaithilingam)

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

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