JUDGMENT :

Prayer: Appeal filed under Order XLI Rule 1 CPC read with Section 96 of CPC, against the Judgment and Decree dated 16.04.2018 in O.S.No. 33 of 2012 on the file of II Additional District Judge, Puducherry.

1. The defendant in O.S.No. 33 of 2012 is pending on the file of II Additional District Court, Pondicherry is the appellant herein, aggrieved by the Judgment and Preliminary Decree dated 16.04.2018.

2. The suit in O.S.No. 33 of 2012 had been filed by the respondents seeking partition and separate possession of undivided 1/3rd share in undivided 7/8th share in the ground floor in the entire portion in the first and second floors of the property, namely, land and building at Old No. 100, New No. 164 at Yanam Venkatachalampillai Street, Puducherry. It must be mentioned that the plaintiffs and the defendant are brothers and sons of late Andonissamy. They also had four other sisters and claiming privilege of being governed under the Customary Hindu Law as applicable to Pondicherry Christians, both the plaintiffs and the defendant claimed that their sisters are not entitled to any share in the aforementioned property.

3. The father Andonissamy was born on 15.01.1915 as Indian Christian. He married Kulanthai Ammal @ Kulanthai Theresa Mary on 23.05.1947. The first plaintiff Andoni Irudayaraj @ George was born on 09.04.1953, the second plaintiff Andonissamy Francois was born on 23.03.1959 and the defendant Paulradje was born on 29.05.170. Their sisters, whom the brothers have ousted from claim of partition, had been given in marriage during the life time of Late Andonissamy.

4. The one aspect which is stressed is that the plaintiffs and the defendant are now domiciled in France and it is claimed that they are French citizens and that one aspect has been taken up as an additional ground by the defendant/appellant in the present appeal seeking to interfere with the Judgment and preliminary decree granted by the II Additional Sub Judge, Puducherry.

5. To relate the facts a little further, Andonissamy appears to have had an inclination to execute Wills and in this manner had executed three separate Wills but none of them today are under consideration by this Court or by the trial Court or even by the parties. He finally executed a settlement /donation deed on 18.11.2002 and interpretation of the covenants therein has given rise to the filing of the suit and subsequent adversarial litigation among his three sons.

6. By the said settlement / donation deed, he had settled or rather donated the entire ground floor of the aforementioned property to the defendant/appellant Paulradje. The plaintiffs however claim that being governed by the Hindu Customary Law as applicable to Christians in Pondicherry, Andonissamy can donate or settle the property only to the extent of only 1/8th undivided share to the appellant/defendant and it is on that basis, they have instituted the suit seeking partition and separate possession of the remaining 7/8th share in the ground floor and of the entire first and second floors of the property aforementioned into three equal parts.

7. In the written statement, it had been the contention of the appellant/defendant that since both the plaintiffs and also the defendant had renounced their claim to Indian Nationality and have taken up French Citizenship to heart, they should be governed only by French law and if that law is applied, the defendant would get the entire ground floor and not just 1/8th undivided share. The first and second floor would be subject to partition as claimed by the plaintiffs.

8. During the course of trial, the learned II Additional District Judge had framed the following issues:-

“1. Whether the suit is maintainable under Pondicherry customary Law?;

2. Whether the donation deed dated 18.11.2002 is valid upto 1/8th of the ground floor of the suit property?;

3. Whether sons alone are entitled for succession and daughters are to be excluded?;

4. Whether the plaintiffs can demand their share in the sui