2017 Supreme(Mad) 3963

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, A.D. JAGADISH CHANDIRA, JJ.
Sandana Rene Lucien Joseph – Appellant
Versus
Sandana Vincent Maria Anthony – Respondent
Appeal Suit No. 41 of 2013
Decided On : 07-12-2017

Headnote:

Pondicherry Court Fees and Suit Valuation Act – Section 30 and 40 – French Code Civil – Articles 3, 815, Section 14 – Order Of Permanent Injunction – First respondent herein namely Mr. Sandana Vincent Maria Antony is the plaintiff in O.S. No. 118 of 2008 on the file of II Additional District Judge, Puducherry. He has filed the said suit as against the defendants 1 to 8 therein for the following relief (s) to pass a Judgment and decree declaring the sale deed executed by the third defendant in favour of the 8th defendant as null and void and to direct the 8th defendant to deliver vacant possession of the suit property to the third defendant as a consequential relief – To pass an order of permanent injunction restraining the defendant No.8 from alienating the suit property in any manner to any other person – To direct the third defendant to offer the suit property for sale to the plaintiff for the plaintiff to exercise his pre-emptive right over the suit property – Held, Court wish to observe that in the present case, the suit property was sold in favour of the eighth defendant by means of a registered sale deed Ex.A9. – Admittedly, the eighth defendant is the owner of the suit property and she is an Indian residing in Union Territory of Pondicherry. – As on the date of filing the suit namely 18.06.2008, the eighth defendant was the absolute owner of the suit property. The eighth defendant is not governed by French Civil Code. – Therefore, even for consideration of the prayer sought for by the plaintiff seeking a premptive right, when the suit property vests with the eighth defendant, at the time of instituting the suit, the French Civil Code will not have any application and therefore, the trial Court was in error in holding that the parties are governed by French Civil Code. – None of the above ingredients have been satisfied by the plaintiff warranting consideration of his claim to seek for pre-emptive right over the suit property which was already sold in favour of the eighth defendant. – Trial Court, without properly considering the above issue has erroneously held that the plaintiff is having a pre-emptive right and therefore declared the sale deed executed in favour of the eighth defendant as void. – Even PW1, power of attorney agent examined on behalf of the plaintiff had deposed that the plaintiff, only after coming to know about the sale made by the third defendant in favour of the eighth defendant had taken steps to assert a pre-emptive right by instituting the suit. – In such view of the matter, Court hold that the plaintiff cannot assert a right of pre-emption in this case and we answer point No.3 against the plaintiff. – When the third defendant had acquired title to the suit property by virtue of the documents mentioned above, having been executed by the plaintiff and his brothers and sisters in his favour even during the year 1991, it is not sufficient for the plaintiff to only challenge the sale deed dated 29.08.2007 in favour of the eighth defendant alone and he ought to have questioned the execution of the release deeds mentioned supra in favour of the third defendant under Exs. A4 to A8 by which the third defendant acquired title over the entire suit property. – Even though the plaintiff has claimed that the release deeds have been executed in favour of the third defendant by fraud and misrepresentation, it is not known as to why the plaintiff has to remain silent for more than a decade without questioning those release deeds executed in favour of the third defendant under Exs. A4 to A8 when he has alleged that those release deeds were executed by fraud and misrepresentation. – In any event, the plaintiff, without questioning the correctness or validity of Exs.A4-A8, is estopped from challenging the sale deed alone and therefore, this point is also answered against the first respondent/plaintiff herein. – Court is of the view that the plaintiff ought to have stepped into the witness box to substantiate the plaint averments, but for the reasons best known, he failed to do so. – This is more so that the first defendant/father, in his written statement, has stated that the plaintiff is an estranged son and he did not even attend the funeral of his own mother. – It was further stated in the written statement that the plaintiff has filed the suit only to harass the first defendant and other family members. – When such averments have been made by the first defendant in the written statement, it would be justified and proper for the plaintiff to examine himself to lend support to his own case. – On the contrary, the plaintiff had chosen to examine his power of attorney agent as PW1 who cannot have any personal knowledge with respect to the decisions taken by the first defendant/father in consultation with his sons for more effectively enjoying the suit property purchased by him. – In such view of the matter, Court is of the opinion that non-examination of the plaintiff is fatal to the case projected by him and accordingly, Court decide this issue also against the plaintiff. – Court set aside the Judgment and Decree passed in O.S. on the file of the II Additional District Judge, Puducherry. – Appeal Suit Allowed