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2012 Supreme(Mad) 1389
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE G. RAJASURIA
Alliance Francoise, Rep by its President, Having Its Office at Pondicherry
Versus
Egalammalle @ Rakeny Poulain & Others
A.S.No.51 of 1994
Decided on : 19-03-2012
For the Appellant:Mr. T. Murugesan, Sr. Counsel for Mr. T.R. Rajaraman, Advocate. For the Respondents:R2, R5, Mr. R. Subramanian, Mr. V. Raghavachari for R5, M/s. B.S.G. Firm, Advocates.
Headnote:A. FRENCH CIVIL CODE - ARTICLE 767 - Rights of surviving husband or wife and of those of state - Wife got divorce against husband - A son for them died in unmarried state - Suit property was dated to divorce wife with absolute ownership for her residence and the "communaute" did not get disrupted or dissolved - Wife executed a will in favour of a relative - Husband married other lady and gave birth to a son - Grandsons of husband are plaintiffs in trial court - Claiming right in suit property - After death of divorce wife suit property is reverted back to plaintiffs, who happened to be legal heirs of divorce husband - Suit filed for declaration that plaintiffs are entitled to succeed estate of divorce wife - to declare gift deed executed by divorce wife in favour of her relative is ab-initio null and void and also to declare that they are absolute owners of property - for possession and permanent injunction and also for mesne profits - Trial court decreed suit - Hence this appeal - Whether suit property allotted to divorce wife only to enjoy during her life time, exercising usufroctuary right over it absolute ownership - Whether after deater of divorce wife suit property stand reverted back to plaintiffs, who are legal heirs of deceased divorce husband - As per Article 767 of French Civil Code no rhyme or reason in judgment and decree of trial court holding that on death of divorce wife, suit property got reverted back to legal heirs of deceased divorce husband - Whereupon proceedings were initiate for partitioning property, suit property was allotted to share of divorce wife in full ownership - Suit property would not revert back to legal heirs of divorce husband - Will executed by divorce wife clearly described that her relative Roger Bellog is only a usufructuary right holder of suit property - Second donor is found described as one executing donation on her behalf as well as in her capacity of Manageress of her co-heirs, ownership over suit property in favour of D1 - Plaintiffs having no legal right over suit property - Decree and Judgment of trial court are set aside and original suit is dismissed No costs.
B. FRENCH CIVIL CODE - ARTICLE 1317 (d) - Reco - Meaning - Notary was present when parties expressed their wishes - Document must be written by Notary or dictated by him, or else drawn up in his presence vise by signature proves notarial drawing up. (Para 17).
C. FRENCH CIVIL CODE - ARTICLE 1317 (e) - ’Acte" - means - in French, here translated instrument - Writing intended by parties to it to serve as evidence is called by code indifferently an ’acte’ or a ’titre’ and that writings not drawn up and intended to be evidence are described by it simply as ’ecritures’ (writings) - ’Titre’ is also used to mean a juridical fact - an act of law - (e.g.) agreement which instrument is intended to prove - It is also name to ’donations’.
Result : Appeal allowed.
1. This appeal is focussed by the first defendant in the suit, as against the judgment and decree dated 25.10.1993 passed by the Principal Subordinate Judge, Pondicherry, in O.S.No.650 of 1985.
2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of these appeals would run thus:
The respondents 1 to 5 herein, as plaintiffs, filed the suit on various grounds, the gist and kernal of them would run thus:
(a) The property described in the plaint originally belonged to one Poulain Charele Magne Malie Maurice; he got married one Olive Claudine Laura Marie on 21.11.1900; during the wedlock, a son, namely, Poulain Andra Marie Ame'de was born to them, for nothing but to die in unmarried state, at the young age itself. Thereafter, the wife, namely, Olive Claudine Laura Marie got divorce as against her husband. Whereupon, the suit property described in the schedule of the plaint was allotted to the divorcee wife, namely, Olive Claudine Laura Marie, for her residence only and the 'Communaute' did not get disrupted or dissolved.
(b) After such divorce, which emerged between the couple, the divorcee husband Poulain Charlemagne Marie Maurice married one other lady, by name, Jauffort Marie Hosephine Cabriella on 22.6.1918 and gave birth to a son by name Poulain Marie Joseph Reymond, who married one Egalammallee @ Rakeny Poulain (the first plaintiff) on 4.9.1964 and they gave birth to plaintiffs 2 to 5 and D2.
(c) Subsequently the divorcee wife, namely, Olive Claudine Laura Marie executed a Will dated 31.3.1939 in favour of her relative Roger Belloq setting out the following clauses:
"(i) that she does not want after her life time immovable and movable be sold.
(ii) that her relative Roger Belloq would look after any suit or in his absence any other member in the family will look after the same.
(iii) That the same Belloq will enjoy the wealth as if it is his own and will take only the mesne profits without necessary expenses.
(iv) that the said Belloq will build her grance and acquire other wills after the payment of the debts.
(v) that her jewels will be partitioned in the family.
(d) The said Roger Belloque instituted a case in the erstwhile Court of First Instance, Pondicherry, for getting himself declared as the sole legatee of the testatrix, the said Ollive Claudine Laura Marie. However, the said Court declared that he could only have usufructuary right and manage the property and that ultimately the testator's natural legal heirs would have the absolute right. Appeal was filed by him, which confirmed the judgment of the trial Court.
(e) Thereafter, the said Roger Belloq and his wife executed a gift deed in favour of D1, which is void. The divorcee wife Ollive Claudine Laura Marie died on 20.10.1941 and the said Roger Belloq, who had only usufructuary right over the suit property died on 12.3.1984.
(f) On the death of both divorcee wife, namely, Ollive Claudine Laura Marie and the usufructuary right holder Roger Belloq, the suit property reverted back to the plaintiffs, who happened to be the legal heirs of the divorcee husband. Hence, after issuance of notice and getting no positive response, the suit was filed with the following prayer.
"(i) for a declaration that the plaintiffs and the 2nd defendant are the only legal heirs of late Olive Claudin who dies at Pondicherry on 31.3.1939 and Poulain Marie Joseph Raymond and are entitled to succeed to her esteate
(ii) for a declaration that the gift deed dated 29/9/1983 executed by late Roger Bellocq in favour of the 1st defendant is ab-initio null and void and does not confer any title to the first defendant.
(iii) that the plaintiffs and the 2nd defendant are the absolute owners of the property more particularly described in the schedule hereunder;
(iv) for possession of the suit property.
(v) for a per
