2018 Supreme(SC) 32

SUPREME COURT OF INDIA
A.K. SIKRI, ASHOK BHUSHAN, JJ.
THEIRY SANTHANAMAL – APPELLANT(S)
VERSUS
VISWANATHAN & ORS. – RESPONDENT(S)
CIVIL APPEAL NO. 3227 of 2006
Decided On : 18-01-2018

IMPORTANT POINT
To Christian families of Pudducherry French Code would continue to govern notwithstanding application of Hindu succession Act, 1956 since 1963. Accordingly, the customary Hindu Law will apply. As such the father, the absolute owner of property, could give/partition his property among his sons.

Headnote:

(a) Property law – Parties Christian of Puducherry – French Code would continue to govern notwithstanding application of Hindu succession Act, 1956 since 1963 – Accordingly, the customary Hindu Law will apply – Father, absolute owner of property, could give/partition his property among his sons. (Para 28, 30)

       (b) Constitution of India – Article 136 – Plea taken for the first time before Supreme Court, that too during argument – Not permissible. (Para 29)

       Facts of the case:

       The 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.

       After death of Mariasusai Mudaliar on partition of the properties between the two sons and exchange of certain properties out of these, the suit property came to be allotted to Oubegaranadi.

       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. It was also recited that respondent nos. 3 to 5 would take the suit property as allotted to them, absolutely.

       Oubegaranadin filed a suit on February 02, 1974 (being O.S. No. 70 of 1974) against respondent nos. 3 to 5 and another, praying that he be declared the absolute owner of the suit property and the 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. Based on the statement of the guardian (respondent no. 6) the trial court decreed the suit as prayed for.

       Oubegaranadin claiming himself to be the absolute owner of the suit property, sold of the portions thereof to respondent nos. 1 and 2 under sale deed dated March 29, 1980.

       On the other hand, respondent no. 3 to 5 sold their share to the appellant.

       Respondent nos. 3 to 5 instituted a suit, as indigent persons on January 03, 1983 (O.P. No. 1 of 1983) against their father Oubegaranadin, their mother (Defendant No. 6) as well as the respondent nos. 1 and 2. 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.

       The trial court held 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.

       Respondent nos. 3 to 5 preferred the appeal (A.S. No. 1052 of 1986) before the High Court.

       The Single Judge of the High Court 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.

       Respondent nos. 1 and 2 filed LPA before the Division Bench of the High Court which have been allowed.

       Finding of the Court:

       Partition deed dated March 15, 1971 was valid.

       Result: Appeal dismissed.