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2006 DIGILAW 1325 (MAD)

Rakkini @ Muniyammal v. Ritha Vincent & Others

2006-06-14

S.ASHOK KUMAR

body2006
Judgment :- (Second Appeals preferred against the common judgment and decrees dated 7.4.1992 made in A.S.No. 133/90 on the file of the learned II Additional District Judge, Pondicherry, against the common judgment and decrees dated 26.6.1990 made in O.S.No. 514 of 1985 on the file of the Learned Principal Subordinate judge, Pondicherry.) Common Judgment: The plaintiff Ritha Vincent is the appellant in S.A.No.1450 of 1993. The second defendant Rakkini @ Muniammal is the appellant in S.A.No.1511 of 1992. For convenience the parties will be referred to as plaintiff and defendants. 2. The plaintiff's case in short is that she entered into an agreement for sale with the first defendant on 23.12.1981. The total sale consideration is Rs.30,000/=. Between 23.12.1981 and 16.9.1982, the plaintiff paid a sum of Rs.15,000/= to the defendant. Suit is for specific performance on the basis of the unregistered sale agreement or in the alternative, payment of the sum of RS.15,000/= with 24% interest. According to the plaintiff she paid an advance of Rs.500 to the first defendant. The suit property measures an extent of 4 Kuzhies and 3 Veesams (2,376 sq.ft.,). After receipt of the part of sale consideration, the first defendant was not willing to execute the sale deed in favour of the plaintiff. Hence the suit for specific performance directing the first defendant to receive the balance sale consideration Rs.15,000/= and to execute the sale deed in respect of the suit property or in the alternative to refund the advance amount with 24% interest as stated earlier. 3. The first defendant's case in short is that she was cheated by the plaintiff. It was only a loan arrangement. She further contended that the property was jointly owned by her, her brother's children, Marius, Gustin and Marius Claudine her 1st cousins Louis Sadel and Lourde Marie Fanover. Her share in the property is only 1/4th. She also stated that along with her brother's children Marius, Gustin and Marius Claudine her 1st cousins Louis Sadel sold their share to the 2nd defendant by a registered sale deed dated 20.1.1986. The first defendant also claimed that she is entitled to only 1/4th share in the property. The plaintiff did not choose to contest the said specific case of the first defendant by filing reply statement. The first defendant also claimed that she is entitled to only 1/4th share in the property. The plaintiff did not choose to contest the said specific case of the first defendant by filing reply statement. Only on the basis of the written statement of the fist defendant, the plaintiff impleaded the 2nd defendant as a party defendant in the suit. 4. The second defendant filed a separate written statement contending that she entered into a registered agreement of sale with the first defendant, children of their brother Late Arokiadass, Mrius, Gustin, Marius Claudine and Louis Sadel and purchased their share. 5. On the above pleadings and on hearing the learned counsel appeared on either side and on a perusal of the evidence both oral and documentary, the trial court framed as many as three issues for consideration and held that the second defendant is a necessary party to the suit, that in the sale deed executed in favour of the 2nd defendant, namely Ex.B.7, the entire share of the branch of Kokkili is also included. Thus the trial court set aside Ex.B.7 sale deed holding that the plaintiff is entitled for the relief of specific performance of the agreement as prayed for. On appeal preferred by the defendants, the first appellate court modified the judgment and decree of the trial court holding that the first defendant is entitled to one half share in the property and ordered specific performance of the one half share. As against the same, the plaintiff as well as the defendants have preferred these Second Appeals. 6. At the time of admission of these appeals this court framed the following common substantial question of law:- "Whether the court of appeal below has correctly concluded that the first defendant had a specific share in the property and that she was bound by the agreement to sell the said property to the plaintiff and whether in a suit for specific performance any such plea could be entertained to decide the extent and the share of a person in a property inherited in common with others?" 7. Learned counsel appearing for the appellant in S.A.No:1511 of 1992 who is the defendant in the suit contended that the branch of Ammai Appan and Veerammal have sold their share under Ex.B.7 to the 2d defendant. They did not sell the entire property as held by the trial court. Learned counsel appearing for the appellant in S.A.No:1511 of 1992 who is the defendant in the suit contended that the branch of Ammai Appan and Veerammal have sold their share under Ex.B.7 to the 2d defendant. They did not sell the entire property as held by the trial court. The trial court has set aside Ex.B.7 sale deed on a totally erroneous basis. The sale deed executed by Louis Sadel, Marius, Gustin and Marius Claudine along with the first defendant cannot be declared to be invalid by the trial court without impleading them. Ex.B.1 patta contains the names of all the legal heirs of the three families as the joint patta holders. The first defendant purchased the suit property on the basis of a registered agreement for sale dated 22.7.1985, Ex.B.6. According to the learned counsel for the plaintiff, in view of Section 48 of the Registration Act, the plaintiff cannot succeed in the suit solely on the ground of lis pendens unless the sale deed executed by the fist defendant and others is set aside or invalidated by impleading all the necessary parties. The trial court did not frame any issue regarding the share of the first defendant. There was no issue regarding succession. There is nothing to indicate in the pleadings whether the parties belong to Hindu, Muslim, Christian or any other faith. The observation made by the first appellate court to hold that the first defendant is entitled to one half of the share in the property that the other sharers have abandoned their rights and the legal heirs of Kokkili are not known is factually and legally not tenable. According to the learned counsel, when Ex.B.1 patta contains the names of the legal heirs of all the three branches, in the absence of necessary parties being impleaded the Civil Court cannot grant an addiction on the rights of the respective sharers. Without proper pleadings and issues the trial court as well as the appellate court have granted the reliefs. Louis Sadel representing Ammai Appan branch is one of the vendors in Ex.B.7. Learned counsel for the defendant stated that the legal heirs of Kokkili are settled in France and that their whereabouts are not known. Further, the legal heirs of Ammai Appan are no more. Ammai Appan's son Louis Sadel joined as one of the vendors in Ex.B.7. Louis Sadel representing Ammai Appan branch is one of the vendors in Ex.B.7. Learned counsel for the defendant stated that the legal heirs of Kokkili are settled in France and that their whereabouts are not known. Further, the legal heirs of Ammai Appan are no more. Ammai Appan's son Louis Sadel joined as one of the vendors in Ex.B.7. The share of Kokkili Branch is not conveyed under Ex.B.7. The legal heirs of Kokkili are alive and living in Pondicherry. The submission by the plaintiff that there is a finding that Veerammal enjoyed the property to the exclusion of others for over 30 years is not correct. There was no pleading and there was no issue. In fact there is no such finding. 8. On the other hand learned senior counsel for the appellant in S.A.No:1450 of 1993, who is the plaintiff in the suit contended that the parties being Christians and residing in Pondicherry are governed by the Hindu Customary Law as held by this court in the judgment reported in 2004 (4) MLJ 229 (D.B). According to the learned senior counsel succession of a married women as held in Sanner's customary Hindu Law, the property of female goes to her female descendants in preference to male heirs. According to the learned senior counsel Pazhagu Siva Prakasam had 4 children viz., Azhaganathan, Kokkili, Ammai Appan and Veerammal. The said 4 children predeceased Pazhagu Siva Prakasam. He also died 50 years back. The legal heirs in the branch of Kokkili are settled at France and whereabouts are not known. The legal heirs of Ammai Appan also died. Veerammal had two children viz. son Arokiadass Saine and daughter Pauline Bambo viz., the first defendant in the suit. Marius, Gustin and Marius Claudine are the legal heirs of Arokiadass Saine. Admittedly both the courts concurrently held that Veerammal was enjoying the suit property in exclusion of other three legal heirs of Pazhagu Sia Prakasam for over 30 years. By Art.2262 of the French Civil Code, right in personem or in rem are extinguished by prescription by 30 years. Marius, Gustin and Marius Claudine are the legal heirs of Arokiadass Saine. Admittedly both the courts concurrently held that Veerammal was enjoying the suit property in exclusion of other three legal heirs of Pazhagu Sia Prakasam for over 30 years. By Art.2262 of the French Civil Code, right in personem or in rem are extinguished by prescription by 30 years. It is also submitted that the fist appellate court for the fist time given a finding that the first defendant and her brother Arokiadass Saine are entitled to equal moiety which is against the prevailing Hindu Customary Law of Pondicherry Region vzi., that the property of a married women will be inherited by a female descendant excluding the male descendants. Hence the decree of the first appellate court is liable to be interfered with holding that the plaintiff is entitled to the relief in its entirety. It is also submitted that the sale in favour of the second defendant is hit by the principle of lis pendense as per Section 52 of the Transfer of Property Act which is concurrently held by both the courts below. 9. As rightly submitted by the learned senior counsel appearing for the plaintiff, the residents belonging to Christianity of Pondicherry region are governed not by the Hindu Succession Act and only by the Hindu Customary Law which is prevalent in that region which contention is fortified by a Division Bench judgment of this court in Viswanathan Vs. Savarimouthurayan, reported in 2004 (4) MLJ 229 wherein their Lordships of this court held that prior to the applicability of Indian Succession Act, 1956 in the State of Pondicherry, Christians were governed by customary law which was by then applicable to Hindus . Such customary law applicable to Hindus has to be applied to Christians also. However, the Hindu Successions Act 1956 would not apply to Christians as expressed in Section 2(1) (C) of the Hindu Succession Act, 1956. So the law of succession applicable to Christians in the State of Pondicherry is not the Succession Act as envisaged in the Hindu Succession Act 1956, but it is the customary law amongst Hindus which was prevalent in the State of Pondicherry, namely as the law of succession. 10. So the law of succession applicable to Christians in the State of Pondicherry is not the Succession Act as envisaged in the Hindu Succession Act 1956, but it is the customary law amongst Hindus which was prevalent in the State of Pondicherry, namely as the law of succession. 10. In the absence of any pleading in the written statement the contention of the learned counsel for the defendants that without framing of an issue and decision thereon as to whether the parties are belonging to Christianity to be governed by the Hindu Customary Law of Pondicherry region, the customary law of succession of that region is not applicable cannot be sustained. When there is no pleading at all, the courts can infer even by the very names of the parties that the parties are belonging to Christianity and only the Hindu Customary Law is applicable to the present case. Thus as seen from the translated copy of the Book written by the famous author Sannar's Customary Law of Hindus (French Version- pages 257 to 262), the properties of a woman goes to her female descendants in preference to all other parents of the deceased. The daughters inherit in the first place and they exclude the sons and only in the absence of daughters and grand daughters, the sons of daughters will succeed. Admittedly, in the present case the whereabouts of the legal heirs of Kokkili is not known. In the present case only the legal heirs of Veerammal are available. It is the finding of both the courts that Veerammal was enjoying the property in exclusion of other three legal heirs of Pazhagu Siva Prakasam for over 30 years. By Art.2262 of the French Civil Code, right in personam or in rem are extinguished by prescription by 30 years. Hence the first defendant is the absolute owner of the suit property. Both the courts below have also rightly held that the sale deed in favour of the second defendant is hit by the principles of lis pendense. In the above circumstances, the only substantial question of law is answered in favour of the appellant in S.A.No:1450 of 1993. 11. In the result, the S.A.No.1511 of 1992 filed by the second defendant is dismissed and S.A.No.1450 of 1993 filed by the plaintiff is allowed. In the above circumstances, the only substantial question of law is answered in favour of the appellant in S.A.No:1450 of 1993. 11. In the result, the S.A.No.1511 of 1992 filed by the second defendant is dismissed and S.A.No.1450 of 1993 filed by the plaintiff is allowed. The judgment and decree of the trial court is confirmed setting aside the judgment and decree of the first appellate court. No costs.