Madras High Court
Thananjayan @ Murugesan vs Palani @ Boologanathan (Died) on 29 March, 2012
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 29.03.2012
CORAM
The Hon'ble Mr.Justice R.S.Ramanathan
S.A.Nos.209 & 210 of 1998
S.A.No.209 of 1998:-
1 THANANJAYAN @ Murugesan
2 GOVINDAN
3 VIJAYAN
4 MOHANRAJ
5 BARATHI
6 RAMACHANDRAN
7 VELAYUDHAM
8 BALAKRISHNAN
9 CHANDRASEKARAN (DIED)
10 ANUSUYA (DIED)
11 SAKUNTHALA
12 SAMPATHKUMAR
13 SUBATHIRA
14 PREMKUMAR
(Appellants 11 to 14 impleaded as lrs of the
deceased 9th appellant vide order dated 1.8.2002,
passed in CMP.Nos.7394 to 7399/02)
15 M.BAKTHAVATCHALAM
15th appellant was impleaded as lrs of the deceased 10th
appellant vide order dated 16.11.2010, passed in
CMP.Ns.1586 to 1588/2010 ... Appellants
Vs.
1 PALANI @ BOOLOGANATHAN (DIED)
2 MARAGATHAVALLI
3 SELVAZAGI
4 MANOHARAN
5 KARUNAKARAN
R2 to R5 were impleaded as lrs of the deceased R-1,
vide order dt 28.6.10 passed in CMP.NO. 444/2007) ... Respondents
Prayer in S.A.Nos.209 of 1998:-
Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree, dated 29.04.1997, passed in A.S.No.55 of 1995, on the file of the Principal District Judge, Pondicherry, and the judgment and decree, dated 29.04.1991, passed in O.S.No.412 of 1987, on the file of the II Additional District Munsif Court, Pondicherry.
For Appellants : Mr.G.Masilamani,
Senior Counsel for
M/s. G.M.Mani Associates
For Respondents 2 to 4 : Mr.S.Subbiah
S.A.No.210 of 1998:-
1. THANANJAYAN @ MURUGESAN (died)
2 ANUSUYA(DIED)
3 BALAKRISHNAN
4 CHANDRASEKARAN (died)
5 RAMACHANDRAN
6 VELAYUDHAM
7 GOVINDAN
8 B.VIJAYAN
9 MOHANRAJ
10 SAKUNTHALA
11 SAMPATHKUMAR
12 SUBATHIRA
13 PREMKUMAR
( Appellants 10 to13 were impleaded as
lrs of the deceased 4th appellant
vide order dated 1.8.02 passed in
CMP.Nos.7394 to 7399/02-PDDJ)
14 M.BAKTHAVATCHALAM
14th appellant brought on record, as legal
representative of the deceased 2nd appellant
vide order dated 16.11.2010, passed in
C.M.P.Nos.1583 to 1585 of 2010) ... Appellants
Vs.
1 PALINI @ BOOLAGANATHAN(DIED)
2 RATHINAVELU
3 MARAGATHAVALLI
4 SELVAZAGI
5 MANOHARAN
6 KARUNAKARAN
( R3 to 6 were impleaded as lrs. of the deceased R.1
vide order dated 28.6.10 passed in CMP.447/2007) ... Respondents
Prayer in S.A.Nos.210 of 1998:-
Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree, dated 29.04.1997, passed in A.S.No.54 of 1995, on the file of the Principal District Judge, Pondicherry, and the judgment and decree, dated 29.04.1991, passed in O.S.No.1462 of 1986, on the file of the II Additional District Munsif Court, Pondicherry.
For Appellants : Mr.G.Masilamani,
Senior Counsel for
M/s. G.M.Mani Associates
For Respondents 3 to 6 : Mr.S.Subbiah
COMMON ORDER
One Chakrapani Gounder @ Amavasai, the native of Pondicherry, had three sons and two daughters. The daughter Anandammal @ Chandrakanni, predeceased the father, leaving behind her children, who were arrayed as defendants 4 to 7 in O.S.No.1462 of 1986 and defendants 7 to 10, in O.S.No.412 of 1987, on the file of the II Additional District Munsif, Pondicherry. The three sons are i) Thananjayan @ Murugesan, ii) Palani @ Boologanathan, & iii) Govindan and the other daughter is Anusuya.
2. The son Thananjayan @ Murugesan filed a suit in O.S.No.1462 of 1986, to set aside the donation deed, dated 6.11.1985, executed by his father Chakrapani Gounder @ Amavasai, in favour of his brother Palani @ Boologanathan, on the ground of fraud, or in the alternative, to declare that the donation deed is valid only to the extent of 1/8 share of Chakrapani Gounder @ Amavasai and not valid in respect of 7/8 share. In that suit, viz., the suit in O.S.No.1462 of 1986, Chakrapani Gounder @ Amavasai, his father, was arrayed as the first defendant, his brother Palani @ Boologanathan, as the second defendant, his sister Anusuya as the third defendant and his other brother Govindan as the eighth defendant.
3. The other son, by name, Palani @ Boologanathan, filed O.S.No.412 of 1987, for the relief of declaration that he is the absolute owner of the properties, which were given to him under the donation deed, dated 6.11.1985 and therefore, for injunction, or in the alternative, directing the defendants to put him in possession of the suit properties. In O.S.No.412 of 1987 also, the father Chakrapani Gounder @ Amavasai was the first defendant, Thananjayan @ Murugesan, viz., the plaintiff in O.S.No.1462 of 1986 was the second defendant, and Govindan was the third defendant and their sister, Anusuya was the eleventh defendant and the legal heirs of Anandammal, were arrayed as the defendants 7 to 10.
4. Both the suits were tried together and the Trial Court held that the donation deed, dated 06.11.1985, executed by Chakrapani Gounder, in favour of Palani @ Boologanathan, was valid only to the extent of 1/8 share and it was not valid to the extent of remaining 7/8 share, after holding that the donation deed was executed by Chakrapani Gounder, while he was in a sound state of mind and it was not obtained by the donee-Palani @ Boologanathan, by practicing fraud. Similarly, in O.S.No.412 of 1987 also, the plaintiff viz., Palani @ Boologanathan, was given declaration in respect of 1/8 share of the property. Aggrieved by the same, Palani @ Boologanathan, the plaintiff in O.S.No.412 of 1987 and the second defendant in O.S.No.1462 of 1986, filed A.S.Nos.54 & 55 of 1995, against the judgment and decree passed in O.S.No.1462 of 1986 and O.S.No.412 of 1987 and those two Appeals were allowed, holding that after the extension of Hindu Succession Act to Pondicherry in the year 1963, the property belonged to Chakrapani Gounder and it was his absolute property and he was entitled to execute any gift deed or sale deed in respect of those properties and he executed the gift deed, dated 06.11.1985, in favour of Palani @ Boologanathan, and therefore, Palani @ Boologanathan, got absolute right over the property and decreed the suit in O.S.No.412 of 1987, and dismissed the suit in O.S.No.1462 of 1986. Aggrieved by the same, Thananjayan and other legal heirs of Chakrapani Gounder, excluding Palani @ Boologanathan, filed the above Second Appeals.
5. The following substantial question of law was framed at the time of admission of the Second Appeals:-
" Whether in law the provisions of the Hindu Succession Act, 1956, applies to the parties or the Coramandel Hindu Law still continue to apply?"
6. Mr.G.Masilamani, the learned Senior Counsel for the appellants submitted that the Lower Appellate Court, without properly appreciating Section 2 (A) of the Hindu Succession Act and the law applicable to Pondicherry, as laid down by this Court in various judgments, erred in holding that after the extension of Hindu Succession Act and Transfer of property to the Union Territory of Pondicherry, the Doctrine of 'Quotite Disponable' cannot be applied and any property owned by a Hindu living in Pondicherry is his absolute property and he has got absolute right over the same and he can dispose of the property according to his whims and fancies.
7. The learned Senior Counsel for the appellants further submitted that as per the Pondicherry (Administration) Act, 1962, by virtue of Section 4 of the said Act, all laws in force immediately before the appointed day in the former French Establishments or any part thereof shall continue to be in force in Pondicherry until amended or repealed by a competent Legislature or other competent Authority. The learned Senior Counsel further submitted that by virtue of the power conferred under Regulation VII of 1963, Section 2(A) was inserted to the Hindu Succession Act with effect from 01.10.1963, and as per Section 2(A), notwithstanding anything contained in sub-section (1) of Section 2 of the Hindu Succession Act, nothing contained in that Act shall apply to the Renoncants of the Union Territory of Pondicherry. The learned Senior Counsel further submitted that the Renoncant is a native resident of former French possessions in India, who has renounced his personal law and adopted the French Civil Law.
8. The learned Senior Counsel for the appellants therefore submitted that, having regard to Regulations VII of 1963, Pondicherry (Administration) Act, Act No.XLIX of 1962, Section 2 (A) of the Hindu Succession Act, the deceased first defendant Chakrapani Gounder was a renoncant and the provisions of Hindu Succession Act shall not be applied to such a renoncants and they are governed by the Coramendel Hindu Law applicable to the Territory of Pondicherry and as per the law applicable to the territory of Pondicherry, the property possessed by a Hindu father is his absolute property and he has no right to give any property by way of gift or by any other gratuitous transfer, so as to affect the rights of his sons, who are entitled to claim the right of legitim and they can challenge the dispossession by the Hindu father even during the life time, stating that dispossession by a Hindu father made gratuitously will not affect the right of a legitim and in this case, the father Chakrapani Gounder executed a donation deed, dated 06.11.1985, giving his property to the first respondent herein viz., Palani @ Boologanathan, and as per the law applicable to the Hindus at Pondicherry, there is a interdiction, by which, the father cannot give more than 1/8th of his property by way of gift and considering the same, the Trial Court held that the gift deed in favour of the first respondent will not bind the 7/8 share of the appellants and the gift deed is valid to the extent of only 1/8 share and without appreciating that, the Lower Appellate Court proceeded on the basis that after the extension of the Hindu Succession Act and Transfer of Property Act to the Union Territory of Pondicherry, the Hindus are governed by Hindu Succession Act and therefore, the properties in the hands of Chakrapani Gounder was his separate property and he was entitled to dispose of the same, in any manner and hence, the gift in favour of the first respondent was also valid and therefore, judgment of the Lower Appellate Court is liable to be set aside.
9. The learned Senior Counsel for the appellants also relied upon the judgment of the Hon'ble Division Bench of this Court, reported in (2002) 3 L.W. 669 in the case of [ Krishnamoorthy Gounder Vs. Sitarama Gounder and others ], wherein, the law has been fully discussed and held that the Hindu father, who is a renoncant cannot dispose more than 1/8 share in the property, though, he is the absolute owner of the properties and hence, the Second Appeals are to be allowed.
10. Per contra, Mr.S.Subbiah, the learned counsel appearing for the respondents by placing reliance on the judgment of this Court, reported in (1982) 1 M.L.J. 143 : 1995 L.W. 318 in the matter of [ Pandurangan Vs. Sarangapani] and another judgment, reported in (1980) 3 M.L.J. 350 in the case of [ Ramalingam Vs. Manicka Gounder and others] submitted that as per the above judgments, an Hindu father living in Pondicherry becomes the owner of the property absolutely, eventhough, he inherited the property from his ancestors and therefore, after the extension of Hindu Succession Act and Transfer of Property Act, the properties are the separate properties of the father and he is entitled to dispose of the properties, as per his wish and hence, the sons cannot question the same.
11.The learned counsel for the respondents further submitted that both the Courts below concurrently held that the gift deed, dated 06.11.1985, was not obtained by fraud, as alleged by the appellants and therefore, once the gift deed is valid, the appellants cannot question the same and the first respondent got absolute title to the properties under the gift deed and that was rightly appreciated by the Lower Appellate Court and therefore, the Appeals are to be dismissed.
12. Heard both sides.
13. In order to appreciate the substantial question of law and the submissions of the learned Senior Counsel for the appellants and the learned counsel appearing for the parties, we will have to decide whether Chakrapani Gounder, the deceased first defendant was governed by the Hindu Succession Act or by old Coramendel Hindu Law of Pondicherry.
14. There is no doubt that Chakrapani Gounder was the native of Pondicherry and therefore, he was a renoncant, as per the definition of the word "Renoncant", as stated in P.Ramanatha Aiyar's the Law Lexicon, II Edition, 1997. It is seen from Section 2 (A) of the Hindu Succession Act, Section 2 (A) was introduced with effect from 1.10.1963, by Regulations VII of 1963 and Section 2 (A) reads as follows:-
"Notwithstanding anything contained in sub-section (1) of Section 2 of the Hindu Succession Act, nothing contained in that Act shall apply to the Renoncants of the Union Territory of Pondicherry. "
Sub section 1 of Section 2 deals with applicability of the Act to various persons as stated thereunder. By virtue of the insertion of Section 2 (A), the provisions of Hindu Succession Act shall not apply to the renoncant of the Union Territory of Pondicherry. Therefore, Chakrapani Gounder @ Amavasai who was admittedly, a renoncant was not governed by the provisions of the Hindu Succession Act and he was governed by old Coramendel Hindu law of Pondicherry
15.As rightly submitted by the learned Senior Counsel, Mr.G.Masilamani, for the appellants that as per Section 4 of the Pondicherry (Administration ) Act, 1962, all laws in force immediately before the appointed day in the former French Establishments or any part thereof shall continue to be in force in Pondicherry, until amended or repealed by a competent Legislature or other competent Authority. As per the Pondicherry (Laws) Regulation 1963, viz., the Regulation No.VII of 1963, as per Section 3, the Acts, as they are generally in force in the territories to which they extend, shall extend to and come into force in Pondicherry on the first day of October, 1963, subject to the modifications, if any, specified in the First Schedule.
16. Therefore, as per Section VII of 1963, and Pondicherry (Administration) Act, 1962, all laws in force in Pondicherry shall continue to be in force until amended or repealed by the competent legislature.
17. In this case, as per Section 2 (A) of the Hindu Succession Act, which was inserted by Regulation VII of 1963, the Hindu Succession Act shall not apply to a renoncant of Union Territory of Pondicherry. Therefore, it cannot be contended that though, as per the Coramendel Hindu Law of Pondicherry, a Hindu male, inheriting the property from his ancestors, is holding the property as his separate property, after the extension of Hindu Succession Act and the Transfer of Property, he continued to hold the same as his absolute property and his legal heirs cannot question the same. Therefore, when the Hindu Succession Act is not applicable to such persons, then they are governed by the Coramendel Hindu Law of Pondicherry and it is not in dispute that under the Coramendel Hndu law of Pondicherry, any gratuitous transfer made by a Hindu male in excess of 1/8 share will not bind his legal heirs, viz., his sons and the declaration can be sought for, as such transfer will not bind their 7/8 share. This principle has been made clear in the judgment reported in (2002) 3 L.W. 669 ( supra) wherein, the Hon'ble Division Bench of this Court has held as follows:-
" Thus, the father irrespective of the nature of the properties in his possession cannot gratuitously transfer the property in favour of others more that 1/8th of the totality of his estate.
However, this 1/8th we have to work out only on his death. Till then, it would appear that the forced heir cannot have any right, though, according to Mr.Kannan, the learned counsel for the appellant, there could be an interdiction restraining the father from exceeding the limit of 1/8th for creating bogus transactions. The learned counsel wants to draw an analogy from the right of a reversioner to maintain a suit for a declaration that the alienation by a Hindu widow or other limited owner will not be binding on him."
18. The learned Judges, after quoting extensively, the laws applicable to Pondicherry and after considering what is the meaning of a word "Legitim" has held as stated above. In the same judgment, they also overruled the judgment reported in (1982) 1 M.L.J. 143 : 1995 L.W. 318 (supra).
19. Further, in the judgment reported in (1980) 3 M.L.J. 350 (supra) the issue was in respect of the nature of property held by a Hindu male in Pondicherry and in that context, it was held that, he held the property as a separate property and there is no dispute about that proposition.
20. Therefore, I hold that the substantial question of law is answered in favour of the appellants that a Hindu Renoncant in Pondicherry is governed by the Coramendel Hindu Law of Pondicherry, by virtue of Sectioni 2(A) of the Hindu Succession Act and the provisions of the Hindu Succession Act will not apply and the gift deed dated, 06.11.1985, is valid only to the extent of 1/8 share of the deceased first defendant Chakrapani Gounder and it is not valid in respect of 7/8 share.
21. In the result, the judgments and decrees of the Trial Court are confirmed and the judgments and decrees of the Lower Appellate Court are set aside and the Second Appeals are allowed. No costs.
sd To
1.The Principal District Judge, Pondicherry.
2.The II Additional District Munsif, Pondicherry