AI Drafter 
TaxTMI 
TaxTMI 
2018 (1) TMI 1577
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....of the allotted properties arose which necessitated the two brothers to exchange between themselves certain properties. Under the Exchange Agreement dated March 15, 1971, the suit property came to be allotted to Oubegaranadi. 4) On getting the suit property under the said exchange and in respect of the other properties got under the partition dated March 23, 1959, 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. Further, it was also recited that respondent nos. 3 to 5 would take the suit property as allotted to them, absolutely. 5) Nearly after three years from the date of having entered into a partition with his sons, Oubegaranadin filed a suit on February 02, 1974 (being O.S. No. 70 of 1974) against respondent nos. 3 to 5 and another, on the file of the learned Additional Subordinate Judge, Pondicherry (now known as 'Puducherry'), praying that he be declared the absolute owner of the suit property and the Partition Deed dated March 15, 1971 be nullified.....
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.... 1974 vide which the partition deed dated March 15, 1971 was nullified and Oubegaranadin was declared as the absolute owner of the suit property. However, as would be noticed hereinafter, validity of the Partition Deed dated March 15, 1971 itself is in issue. 9) Proceeding further to complete the factual narration, it so happened that respondent nos. 3 to 5 instituted a suit, as indigent persons on January 03, 1983 (O.P. No. 1 of 1983) before the Principal Subordinate Judge, Puducherry against their father Oubegaranadin, their mother (Defendant No. 6) as well as the respondent nos. 1 and 2 to whom Oubegaranadin had sold part of the property. In this suit, respondent nos. 6 to 9 as well as appellant, Selvanathan (since deceased whose legal heirs are respondent nos. 10 to 13 herein) and one Mr. M.B. Vaithilingam (since deceased whose legal heirs are respondent nos. 14 to 16 herein), were also impleaded as defendants. 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 bind....
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....executed by respondent nos. 3 to 5 were not under coercion but were executed to meet the family debts and out of necessity. Since, respondent nos. 3 to 5 have been left without any property, the learned Subordinate Judge, opined that an additional 10% of the sale consideration for the suit property and 5% of the sale consideration for the land be paid over by the appellant and respondent nos. 1 and 2 to respondent nos. 3 to 5 and on the said basis, quantified the sum to be paid. 13) Aggrieved by the partial decree of suit, as full relief prayed for not having been granted, respondent nos. 3 to 5 preferred the appeal (A.S. No. 1052 of 1986) on the file of the High Court of Madras. Respondent nos. 1 and 2 preferred cross-objection insofar as the sale consideration in respect of the land (it is not the subject matter of the present appeal). Insofar as the direction to pay an additional 10% of the sale consideration for the building to respondent nos. 3 to 5, the appellant preferred an independent appeal in A.S. No. 335 of 1987 in the High Court of Madras. 14) The learned Single Judge of the High Court vide judgment dated March 19, 1988 reversed the judgment of the Trial Court on....
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....tely, which fell in his share after partition between him and his brother Simon. However, Oubegaranadin partitioned the said property by executing Deed of Partition dated March 15, 1971. Under this partition deed, some of the properties were given by Oubegaranadin to his sons, namely, respondent Nos. 3 to 5. Respondent Nos. 3 to 5, therefore, claim their right on the basis of this partition deed. No doubt, Oubegaranadin got that partition deed cancelled by filing a suit in this behalf ad obtaining decree therein. However, as per the High Court, the first question was as to whether respondent Nos. 3 to 5 were entitled to claim any right under the partition deed dated March 15, 1971. 18) The High Court noted that the family of Oubegaranadin, and his children i.e. respondent Nos. 3 to 5, belong to Christianity in religion. The High Court further noted that by Regulation dated January 06, 1817, the French Code to the exception of the Code of Criminal Procedure, containing the totality of the substantive and objective laws of France, including the personal law, have been made applicable to Puducherry. According to Section 3 of the said Regulation, Indians, whether Hindus, Muslims or ....
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....No.5 Respondent No.2 Savarimouthurayan Plaintiff No. 1 Respondent No.3 John Kennedy Plaintiff No. 2 Respondent No.4 Robert Kennedy Plaintiff No. 3 Respondent No.5 Marie Rosalie Defendant No.2 Respondent No.6 Kumar Manjini Defendant No.3 Respondent No.7 Babu Defendant No.8 Respondent No.8 RathinavelMudaliar Defendant No.9 Respondent No.9 Mrs Elizabeth Defendant No.6 (Selvanthan) Respondent No.10 Joseph Elango Defendant No.6 (Selvanthan) Respondent No.11 Albert Defendant No.6 (Selvanthan) Respondent No.12 Francis Defendant No.6 (Selvanthan) Respondent No.13 Rukmaniammal Defendant No.7 (M.B. Vaithilingam) Respondent No.14 21) Mr. K. Ramamoorthy, learned senior counsel appearing for the appellants, advanced the following propositions: (a) The partition deed dated March 15, 1971 is valid in law. (b) It was submitted that the appellant was not disputing the legal position that as per customary Hindu law during the lifetime of their father, sons cannot ask for partition. His submission, however, was that it is not respondent Nos. 3 to 5 (sons) who a....
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....dri Naraya Singh v. Kamdeo Prasad Singh & Anr. AIR 1962 SC 338; Lonankutty v. Thomman & Anr. (1976) 3 SCC 528; Narayana Prabhu Venkateswara Prabhu v. Narayana Prabhu Krishna Prabhu (Dead) By LRs. (1977) 2 SCC 181; and Sri Gangai Vinayagar Temple & Anr. v. Meenakshi Ammal & Ors. (2015) 3 SCC 624. 22) Refuting the aforesaid submissions, argument advanced by learned counsel for respondent Nos. 1 and 2 was that since the customary Hindu law in Puducherry applicable to the parties do not recognise any entitlement or right of the children to claim and, therefore, demand any interest or share in the property, no partition can legally take place between the father and respondent Nos. 3 to 5. Any partition, even if effected, would, therefore, be inconsistent with the law. The father was, therefore, entitled to seek a declaration that he continued to be the absolute owner of the properties in question. The father sought such a declaration and obtained it. He submitted that in the absence of any right or any entitlement in favour of the said respondents under the customary Hindu law, the partition cannot create a right in their favour more particularly when the partition was set at naught ....
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.... that insofar as the partition deed dated March 15, 1971 is concerned, it complied with mandatory formalities of the Code and the Division Bench rightly rejected arguments in this regard. 24) Having regard to the respective submissions, it is clear that first and foremost it needs to be determined as to whether partition deed dated March 15, 1971 is valid in law, inasmuch as, this issue will have bearing on the remaining case. 25) As already pointed out above, the foremost question pertains to the validity of the Partition Deed dated March 15, 1971 and other arguments would arise for consideration only if the appellant is able to cross this hurdle. At this stage, it would be pertinent to point out that even after holding that during the lifetime of their father sons cannot claim partition of the properties as per the said customary Hindu Law, the High Court has accepted the fact that the father is still enabled to distribute and partition his property between the children and the descendants. As per the High Court, this can be done either by instruments inter vivos or by Will and further that the settlement or Will must comply with the formalities, conditions and rules laid d....
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....d in the territory of Puducherry in the year 1963. The High Court has dealt with this aspect in detail in its judgment, as pointed out above, and has come to the conclusion that insofar as Christians are concerned, old Customary Law continue to apply. No attempt was made by the learned senior counsel for the appellant to dislodge the same. Even otherwise, it is the Customary Hindu Law which has been applied to decide the case which approach is perfectly justified. 29) We also find that the plea to the effect that Hindu Succession Act to be enforced in the Union Territory of Puducherry w.e.f. 1963 and, therefore, French Code was not applicable thereafter, has taken for the first time in this Court that too during the arguments. Interestingly, even in the Special Leave Petition, it is accepted that in the plaint filed by respondent Nos. 3 to 5, it was specifically mentioned that they were governed by French Civil Law. The learned Single Judge while deciding appeals filed by the appellant herein as well as respondent Nos. 3 to 5 (plaintiffs) in the suit have also dealt with the matter in the light of French Code. Even if it is assumed that Oubegaranadin and his sons are governed by....