No evidence of surrendering domicile in Tamil Nadu.

The Order of the Court was as follows :

Plaintiff in O.S. No. 81 of 1993 on the file of the Principal Subordinate Judge, Pondicherry is the appellant herein. The said suit was filed by her against her father and her sister for declaration declaring that the settlement executed by her father is valid to an extent of 1/8th share and the remaining property is to be partitioned by metes and bounds after the death of her father.

2. The facts could be summarised as hereunder :

First defendant Murugesa Pillai was married to plaintiff's mother one Rajalakshmi. It is averred in the plaint that the parties belong to Pondicherry and are governed by the Pondicherry Customary Hindu Law. The suit property was acquired by the first defendant and as per Customary law, his daughters are the apparent heirs to inherit the suit property. Two years after the birth of the plaintiff, the first defendant and his wife namely mother of the plaintiff got separated and a divorce was also granted. When the plaintiff coming to know that her father is going to execute a settlement deed in favour of the second defendant, she issued a notice not to do so. At that time, the first defendant challenged the paternity and legitimacy of the plaintiff and according to him, the plaintiff is the daughter of the said Rajalakshmi's second husband. According to the plaintiff, the denial of paternity is not correct and she being the daughter, under the Customary Hindu Law of Pondicherry, the settlement is valid only to the extent of 1/8th share in regard to the property belonging to the first defendant.

3. The above suit was filed to declare that the plaintiff is the legitimate daughter of the first defendant and that she is entitled for partition, excluding the 1/8th share, which alone could be gifted under the Pondicherry Customary Hindu Law.

4. In the written statement filed by the defendants, the first defendant denied the paternity of the plaintiff. He further stated that he is not governed by the Pondicherry Customary Hindu Law and on the contrary, he is governed by the Hindu Law as applicable to Tamilnadu and since the properties were acquired by him were out of his own funds, he is entitled to dispose of the properties according to his wishes. It was further averred that the plaintiff's mother the said Rajalakshmi was living in adultery with one Joseph and the plaintiff was born only out of that relationship. The first defendant, ultimately, prayed for dismissal of the suit.

5. The trial Court, after taking evidence, dismissed the suit, though it held that the plaintiff is the legitimate daughter of the first defendant. It came to the conclusion that though the parties migrated to Pondicherry, the mitakshara as in Tamilnadu will govern the rights of the parties.

6. The matter was taken on appeal by the plaintiff in A.S. No. 36 of 1995 on the file of the Principal District Judge, Pondicherry. Pending the first appeal, the first defendant died and the appeal was continued as against the second defendant. The first appellate Court also confirmed the findings of the trial Court, and the appeal was dismissed. The concurrent judgments of the Courts below are assailed in this second appeal.

7. The following substantial question of law has been raised in the memorandum of appeal :

"Whether the Courts below were right in rejecting the claim of the plaintiff that the Hindu Law as applicable to Pondicherry alone would govern the rights of the parties without considering the principles laid down in (1993) 2 Mad LW 387 and (1939) 1 Mad LJ 520 : 1939 AIR(Madras) 595)?"

8. I ordered notice of motion and the respondent also had entered appearance. The only question that requires consideration is as to whether the findings of the Courts below that the deceased first defendant is governed by the Pondicherry Customary Hindu Law or whether he is governed by the place of his birth.

9. DW. 1 is the first defendant. The chief examined himself stating that he was born and brought up at