Madras High Court
T.S. Sadagopan (Deceased) And Ors. vs T.N.K. Ramanujam And Ors. on 21 January, 1993
Equivalent citations: (1993)2MLJ481
JUDGMENT Srinivasan, J.
1. This thirty year old litigation was initiated by Sundararaja Bagavadar, son of Nannayya Bagavadar, for a declaration that the donation of 17th February, 1949 made by the latter had absorbed in full the disposable quota and consequently the former was the owner of 1/3rd share in the undivided properties, being the subject matter of donations dated 17th March, 1959 and 27th July, 1960 and the will dated 27th February, 1961 executed by the latter and for partition besides other reliefs. Even before the suit was taken up for trial, the plaintiff died and his three sons came on record as plaintiffs 2 to 4 to continue the litigation. Nannayya Bagavadar had two wives, Sankara Ammal and Ranganayaki Animal. Through his first wife, he had two daughters and three sons. The eldest son was the first plaintiff. The sons of the second son were impleaded as plaintiffs 5 to 9 and after the death of the 6th plaintiff, his legal representatives came on record as plaintiffs 10 to 12. The third son was the fifth defendant in the suit and on his death, his daughter was impleaded as 6th defendant. Defendants 1 and 2 are the daughter and son-in-law of Ranganayaki Ammal, the second wife of Nannayya Bagavadar. Defendants 3 and 4 are the daughters of Nannayya through his first wife Sankara Ammal. Nannayya Bagavadar died on 5.2.1962.
2. In the plaint as originally filed, the plaintiff claimed that as per Article 913 of Code Civil, 1/4th of the estate of Nannayya Bagavadar was within his disposable quota and the remaining 3/4th fell within the reserve, which devolved on the three sons of Nannayya exclusively. The case of the plaintiff was that on 17.2.1949, a deed of donation was executed by Nannayya giving properties to the three sons and reserving certain properties for himself. The properties given to the three sons absorbed the entire disposable quota of Nannayya and his deeds of donation executed later on 12th March, 1959 and 27th July, 1960 besides his will dated 27.2.1961 under which he gave properties to his daughters and grand-children were ineffective as against the rights of his three sons with the result that the plaintiff was entitled to get 1/3rd share out of the reserve properties. The plaint proceeded on the footing that the law applicable to the parties was that found in Code Civil and reliance was placed on Articles 913,923,925 and 815 thereof. Subsequently, the plaint was amended and it was alleged that the customary Hindu law which was prevailing in Pondicherry was applicable to the parties and the disposable quota of Nannayya was only 1/8th share and that 7/8th of the estate formed the reserve.
3. The suit was mainly contested by defendants 1 and 2. The 6th defendant left the matter to the court. The defence was that the territorial law viz. the Code Civil was applicable, under which all the children, males and females of Nannayya, would have equal shares. Alternatively it was contended that the Hindu Succession Act was applicable to the parties. It was also contended that deed of 17.12.1949 giving properties to the sons was null and void and the donations made under the later documents should be debited against the disposable quota and they fell within the same.
4. The Principal District Judge, Pondicherry disposed of the suit on 2.1.1975. It was found that Nannayya did not belong to the indigenous stock of French Nationals and, therefore, the local customary Hindu Law would not apply. It was held that the parties were governed by the territorial law, viz., the French Code Civil and the disposable quota of Nannayya was 1/4th and the remaining 3/4th devolved on his sons and daughters. It was held that the sons of Nannayya" were given more than their shares in the reserve under, the deed dated 17.2.1969 and they were not entitled to anything in the properties disposed of by Nannayya. Consequently, a preliminary decree was passed with reference to properties not covered by any of the gifts or the will, directing division into six equal shares between the six children of Nannayya.
5. The aggrieved plaintiffs filed A.S. No. 150 of 1976 in this Court, which came to be decided by a Division Bench. The Bench held that Nannayya was a French National as he was born in Pondicherry and the customary Hindu Law was applicable to the parties, with the result that his disposable quota was only 1/8th and not 1/4th. The Bench also held that the findings of the trial court with respect to certain items of the jewels and movables were correct. However, the Bench felt that the question of estoppel raised by defendants 1 and 2 on the basis of the recitals found in the document dated 17.2.1949 between Nannayya and his three sons required to be decided by the trial court and a remand was, therefore, necessitated for the purpose. Ultimately, the appeal was allowed and the matter was remitted for fresh disposal in accordance with observations made by this Court in its judgment.
6. After remand, certified copies of a partition deed dated 2.3.1949 between Nannayya and his three sons were marked as Ex.A-32 arid Ex.B-15. The learned Judge who decided the suit earlier, considered the matter once again after remand. He held that the document dated 17.2.1949 is not a donation-cum-partition as contemplated in French Law, but a deed of partition between coparceners in Hindu Law and that it is the custom of the family of Nannayya Bagavadar which had migrated from Madurai to Pondicherry to live in joint family with equal rights to the father and sons in the property. The learned Judge held that such customed is saved by assate dated 6.4.1819 and the deed dated 17.2.1949 effecting a partition between Nannayya and his sons is one in consonance with the customs of the parties and, therefore, perfectly valid. It was also held that in that partition, the sons having undertaken not to dispute the same and also not to question any disposition of the property by the father on a later date, are bound by their undertaking, as there is no plea of fraud or duress. The learned Judge held that the plaintiffs were estopped from attacking the dispositions made by the father. In the result, a preliminary decree was passed declaring 1/3rd share of Sundararaja Bagavadar, the original plaintiff and 1/3rd share of his brother Kasthuri Ranga Bagavadar in the twelve godowns listed in the report of the Commissioner under the head "Immovables not covered in any the gifts or wills", dismissing the suit in other respects.
7. Plaintiffs 2 to 4 have preferred this appeal. The first appellant, who was the second plaintiff, died and his son has come on record as fourth appellant whereas the second appellant, who was the third plaintiff, died and his legal representatives have come on record as appellants 5 to 8. It is argued vehemently by the appellants that the learned District Judge has transgressed his limits by overlooking the scope of the remand order and considering a question which was no longer open for decision. It is contended that once this Court has categorically found that the parties are governed by the customary Hindu Law prevailing in Pondicherry and that Nannayya's disposable quota was 1/8th share and the remaining 7/8th devolved on his sons, the court below had no jurisdiction to hold that the parties were governed by a family custom inducting the principles of Hindu Law prevalent in Madurai. It is also argued that the Division Bench directed the District Judge to decide only the question of estoppel and he ought to have held that the principle of estoppel is unknown to French Law and proceeded to grant a decree as prayed for by the plaintiffs. It is further contended that the recitals in the deed dated 17.2.1949 whereby the sons agreed that the father could disposed of the other properties as he liked, would in law amount to renunciation of the father's right or an agreement to renounce the right which would accrue in future, and such renunciation or agreement is null and void in French Law. Reliance is placed on Articles 791, 900,920 and 1130 of the French Code Civil.
8. On the other hand, learned Counsel for defendants 1 and 2 has contended that the matter is not res Integra and the judgment of the Supreme Court in Ghulam Abbas v. Haji Kayyam Ali , would squarely apply to the facts of this case. It is argued that having regard to the course of conduct adopted by the parties, the rule of estoppel would apply and the plaintiffs are precluded from challenging the dispositions made by Nannayya in favour of his daughters and grand-children. Learned Counsel for the 6th defendant, who is the 11th respondent in the appeal, has supported the propositions of law and as stated by learned Counsel for the appellants.
9. There is ample evidence on record to show that the ancestors of Nannayya Bagavatarwere Sourashtra Brahmins settled near Madurai and the name of their village was Tumwti near Madurai. The third plaintiff, who was examined as P.W. 1, has admitted that the family of his great-grand-father had several properties at Madurai and they were divided under the partition deed dated 29.1.1916, marked as Ex.B-1. That partition was between Nannayya Bagavadar and his four brothers. The partition deed referred also to properties in Panruti and Pondicherry, Nannayya was given properties in Madurai as well as Pondicherry. Admittedly, almost all the marriages in the family were held at Madurai. The wives of P.W.1 and his brothers belong to Madurai. The sons of Nannayya Bagavadar got married at Madurai and all the brothers of Nannayya Bagavadar died at Madurai. Even if the positive evidence given by D. Ws. 1 to 3 is ignored, the remaining evidence on record is sufficient to hold that the family belonged to Madurai and owned several properties at Madurai. The learned District Judge has accepted the evidence of D.Ws.1 to 3 and we do not find any reason to differ from him. The evidence shows that the family was adopting the customs prevailing in Madurai. Excepting the fact that Nannayya Bagavadar had several properties in Pondicherry in addition to his properties in Madurai, there is absolutely no evidence on record to prove that Nannayya Bagavadar or his ancestors adopted the customary Hindu Law prevailing in Pondicherry at any time. The fact that Nannayya Bagavadar was born in Pondicherry and was a French National as held by the Division Bench on the prior occasion, will not prove by itself that the customary Hindu Law prevailing in Pondicherry would apply to the parties.
10. The recitals in the documents between Nannayya Bagavadar and his sons afford overwhelming evidence that Nannayya Bagavadar and the members of his family were only adopting the Hindu Law which prevailed in the other parts of the country and not the special customary law prevailing in Pondicherry. Even Ex.A-1, the crucial document in this case, dated 17.2.1949 describes the parties thereto as Sourashtra Brahmins. In order to appreciate the circumstances under which Ex. A4 was brought into existence, it is necessary to look into the terms of Ex.A-32 or Ex.B-15. The said document bears the date 2.3.1949. It is a deed of partition between Nannayya and his three sons including the first plaintiff. It is recited that the parties thereto formed a Hindu undivided family carrying on business and the karta of the family was Nannayya. As the Karta wanted to bring about a family arrangement even during his life time, so that the members of the family could live in amity and peace and the sons could develop their prospects, the document was brought about. The Tamil expression used in the document is very significant and it reads " " The exact translation of the said expression in English is "family arrangement". It is also recited that the said arrangement is brought about by consulting certain mediators who were acquainted with the family for quite a long time and who were interested in the welfare of the family. The said mediator* had attested the document. According to the document, in accordance with the decisions of the mediators, certain properties were divided already and the balance was being divided under the document. Only one property, which was set out in Schedule 'E', was reserved to be divided later by another document. In that Schedule, a reference is made to the partition between Nannayya and his brothers effected in January, 1916. There is a further recital in the document that thereafter the parties will have only blood relationship and no common interest in any property and no recourse to each other. The recitals in the said document clearly point out that Ex.A-1 was also brought about as a result of the family arrangement. A close proximity in the dates of execution of the two documents and the recitals in the later document referring to the earlier petition, prove beyond doubt that both the documents are only part of the same scheme of family arrangement. The parties thought fit to have one document for the properties situated in Pondicherry under Ex.A-1 and another document for the properties situated in Madurai under Ex.A-32. Unless both the documents are read together, the court cannot have a complete picture of the family and justice cannot he done.
11. Unfortunately, the document was not exhibited when the suit was disposed of in the first instance. When the appeal was pending in this Court in A.S. No. 150 of 1976, petitions were filed by the appellants in C.M.P. Nos. 8890 of 1977 and 1437 of 1980 for permission to file some documents as additional evidence. One of the documents sought to be filed was the partition deed dated 2.3.1949. The Division Bench passed an order in the petitions along with the judgment in the appeal and held that in view of the conclusion reached in the appeal, there was no necessity or justification for permitting additional documents as evidence. Hence, the Bench dismissed the petitions. After remand, the partition deed was alone marked on both sides. In the memorandum of grounds of appeal, a contention is raised by the appellants that the court below ought not to have marked Ex.A-32 or Ex.B-15, as this Court dismissed the petitions for filing additional evidence. That contention is obviously untenable. This Court did not find any necessity to admit additional evidence, as the matter was being remitted to the trial court. There was no restriction in the remand order against the marking of further evidence in the trial court. The powers of the trial court were in no way curtailed by this Court in the said order. In order to decide the question of estoppel, which the Bench directed the trial court to decide, the said document is absolutely necessary and the court below is fully justified in marking the same. Significantly, both the parties wanted to file the copies and copies are marked on both sides as Ex.A-32 and Ex.B-15.
12. We have no hesitation to hold that Exs. A-1 and A-32 form part of the same family arrangement under which valuable properties are allotted to the three sons of Nannayya. He retained some properties for his share, which at that time were of less value than those allotted to the sons. It is seen from Ex.A-1 that the properties allotted to each son worth Rs. 1,34,056 at that time. Under Ex.A-32 each of the sharers got properties worth Rs. 7,500, No doubt, the value of the properties retained by Nannayya under Ex.A-1 is not mentioned therein. But, the properties disposed under Exs.A-3, A-4, and A-5 in favour of the daughters and grand-children were valued at Rs. 26,000, Rs. 22,000 and Rs. 50,000 respectively in 1959, 1960 and 1961. Whatever might have been the value of the properties retained by Nannayya, it goes without saying that the parties entered into an arrangement consciously, with a view to avoid any future dispute regarding division of the same and Nannayya took care to secure an undertaking from his sons that they would not question the terms of the document and that he could dispose of the properties retained for his share according to his wishes. The relevant portion of Ex.A-1 is extracted in Tamil in the judgment of the trial court. The official translation of the last part of the document reads thus:
The said three coparceners shall enjoy and dispose of every one in full ownership from this day, the properties bequeathed.
They have declared by these presents that even though they would be more or less value in the estimation of the properties allotted to each one of them they do not see any inconvenient they do accept these properties at the State where they are at present and they would not raise any objection nor they file any suit.
At this moment we the aforesaid three namely, (1) Sundararaja Bhagavathar, (2) Kasturi Ranga Bagavadhar, (3) Srinivas Bagavathar accept of our own accord and in very fairness the properties shared out every one of us by our father, declare that we have already taken possession of our properties and we do not see any dispute to that effect and we witness to our father our keen gratitude. Further we manifest our full consent that our father disposes of as he wishes all the other properties except those which have been allotted to us by him and we bind ourselves also not to raise any dispute in this connection.
As my eldest son Sundararaja Bagavathar retires himself from the business after having received his full share through partition the textiles shop No. 152 at Pondicherry Bharathi Street the articles and the textiles which are there shall become the property of my second son Kasturiranga Bagavathar and of my third son Srinivasa Bagavathar. Moreover all the amounts which should come to the said shop as well in my name as in the name of the said shop. T.S. Nannayya Bagavathar and sons have been included in the shares allotted to the said Kasturiranga Bagavathar and Srinivasa Bagavathar we subrogate them by these presents in all our rights in order that both of them proceed themselves to recover the amounts due. Both of them undertake further to pay themselves the debts due in the name of the said business firm. But T. S. Nannayya Bagavathar and my son Sundararaja Bagavathar will not have any action nor any connection with the debts due to the said shop nor with the debts due by these shops relating to the business. My son Sundararaja Bagavathar and myself having consented to it, we surrender by these presents all our rights to the said Kasthuri Ranga Bagavathar and Srinivas a Bagavathar to recover themselves all the amounts due to the said shop, deliver receipts and discharge for these sums and give withdrawal and to agree the striking of the mortgages in the office of the Registrar of Mortgages.
13. The document calls itself as a deed of donation containing anticipatory partition. Obviously, the parties thought that the document being one with reference to the properties in Pondicherry and presented for registration at Pondicherry, should bear a name recognised by French Law. The learned trial Judge has found that a document of this kind is unknown to French law. Strictu sensu it may not be possible to bring the document within the scope of French Law, but to some extent an analogy can be drawn to a petition contemplated by Article 1075 of the French Civil Code. Under that Article, the father, the mother and the other ascendants, may distribute and partition their property between their children and descendants. Under Article 1076, such partitions may be made either by instrument inter vivos or by Will. It is well-known that in French law, the sons do not have any share in the property during the life time of father. When Article 1073 provides for a partition by the father or the mother, it is obviously to prevent family quarrels and it can be easily described as anticipatory partition as has been done by Nannayya Bagavadhar and his sons. In 1949 when the parties entered into the partition, Nannayya was 70 years old and there was no chance of his begetting a son thereafter. So, he thought fit to enter into a partition with his three sons, who would be the only heirs of his on his death as the law stood at that time. Hence, he called it an anticipatory partition. The parties also thought perhaps that with reference to the properties in Pondicherry, the French Law would apply and the sons had no interest during the life time of the father and they could not claim a right to partition. Hence, they described it as a donation containing anticipatory partition, though they described themselves as Hindu coparceners. That might account for the nomenclature of the document.
14. With reference to a partition under Article 1075 of the French Civil Code, it is provided by Article 1079 that it may be impugned on the ground of unfairness. There is no such attack in this case against Ex.A-1. But, the contention of the appellants is that the undertaking given by the sons that they would not question the terms of the document and they consent to the disposal of the properties retained by the father according to his liking, is not valid. For this purpose, reliance is placed on Article 791 of the Code Civil. According to the said Article, the succession of a living person cannot be disclaimed and future rights which one may have in such a succession, cannot be alienated. Learned Counsel for the appellants refers to Jurisprudence Generals Delloz and the following annotations under the different Articles of Nouvesu Code Civil:
Article 791, Note No. 4: Hence, the condition imposed in a Donation to a reserved heir to renounce his claims under the provisions of law regarding disposable quota is void.
Article 900, Note No. 1: Whereas according to the terms of Article 1172 of the present Code, the impossible conditions those contrary to law or good morals are null and void and they nullify the agreement itself, in the gratuitous dispositions under the terms of Article 900 the condition alone is null and void and agreement remains valid.
Article 921, Note No. 49: The reserve heir may while accepting the succession, renounce to sue for reduction, such renunciation is valid.
Ibid Note No. 50: The renunciation should be made after the opening of the succession.
Ibid Note No. 51: Therefore the agreements prior to the opening of succession cannot prevent the reserve heirs to claim their reserve and thereby the reduction of gratuitous disposals exceeding the same.
Article 1079, Note No. 40: The partition by the ascendant is in the nature of a donation and hence the father cannot by such partition much less by any other way openly or indirectly, infringe on the law of reserve.
Attention is also drawn to Delloz - Nouvesu Repertiorire, De Droit, Deuieme Edition 1964, page 457, Note No. 29, which reads:
The absolute nullity is characterised by the fact that it cannot be got over by the consent of the interested parties. It is therefore impossible for those from whom the void deed emanates, to ratify the same.
Learned Counsel also drew our attention to Delloz Novesu Repertoire De Droit, Deuxiome edition, 1965, Notes 1236 and 1237 at page 657, which read as follows:
Note 1236. The civil code prohibits agreements in respect of future succession that is to say agreements relating to succession not yet open. It attaches great importance to that prohibition and lays down a series of provisions-Articles 943, 1130(2), 1389, 1600, 1837, 2129(2).
Note No. 1237: The nullity which is attached to the prohibition is in the nature of public policy, it is therefore absolute may be raised by any interested person and even be taken cognisance,
15. It is argued that though the donation of properties to the three sons under Ex.A-1 is valid, the recitals that the sons' consent to the father's disposal of the remaining properties are void, even if they are treated as conditions for the donation. There is a basic fallacy in the contention. While on the one hand the appellants claim that the parties were governed by the customary Hindu Law which prevailed in Pondicherry in 1876 and the quotite disponible share of Nannayya was only 1/8th, on the other hand, they rely on the Code Civil, which was not applicable to the parties according to them, for the purpose of deciding the disposable quota. The appellants cannot blow hot and cold and claim for one purpose that the Code Civil would apply and at the same time contend that the same would not apply and the customary law would alone apply. If according to the appellants the Code Civil was not applicable to the parties, which was the ultimate claiming the final plaint after all amendments were carried out and which was upheld by the Division Bench on the earlier occasion, it is not open to them to invoke at this stage, the provisions of Code Civil and contend that there could he no relinquishment of 'future rights or that the rule of estoppel would not apply | to the parties.
16. There is no evidence on record to show that the customary Hindu law which prevailed in Pondicherry did not recognise family arrangement or excluded any rule of estoppel. In the absence of any material being placed before me, we hold that there was no bar to family arrangement among the members of Hindu co-parcenary under the customary Hindu Law obtaining in Pondicherry. In such family arrangement it is quite possible for the members of the co-parcenary to agree that they would not make any claim to any other family property thereafter. Hence, the undertaking given by the first plaintiff and his brothers in Ex.A-1 is valid and enforceable and it is not open to them to challenge the dispositions made by Nannayya Bagavathar in favour of his daughters and grand children.
17. Even if the Code Civil applies, the claim of the plaintiffs has to far because of the provisions of Article 1340 thereof. Under the said Article, if the heirs or assignees of a person who has made a donation inter vivos confirm, or ratify, or carry it out voluntarily after his death, they thereby impliedly relinquish their right to have it declared void either for being irregular in form or for any other reason. In the present case, the first plaintiff brought about a partition between himself and his sons with reference to the properties which he obtained- under Ex.A-1 and other properties acquired by him with the income from such properties and the said document is marked as Ex. A-9 dated 24.12.1964 corresponding to Ex.B-10. It refers expressly to Ex.A-1, dated 17.2.1949. The contentions raised by defendants 1 and 2 that Ex. A-9 would amount to ratification of the terms of Ex.A-1 by the first plaintiff and his sons deserves acceptance. That document has come into existence after the death of Nannayya Bagavathar, i.e., after the opening of the succession. No doubt, it is after the institution of the suit, but there is no recital in the document that it is without prejudice to the claims made in the suit. Hence, the view taken by the trial court that the plaintiffs are not entitled to challenge the disposition of the properties by Nannayya Bagavathar in favour of his daughters and grand children is correct and has to be upheld.
18. In this context, the judgment of the Supreme Court in Gulam Abbas v. Haji Kayyam Ali , on which reliance is placed by learned Counsel for defendants 1 and 2, is conclusive. In that case, the family was governed by Muslim Law. The properties belonged to one Kadir Ali Bohra, who died on 5.4.1952, leaving behind five sons and a daughter and his widow as his heirs. He had incurred debts heavily and during his life time, three of his sons, who were defendants 1 to 3 in the suit, came to his rescue so that the property may be named. They paid up the debts and the other two sons executed documents acknowledging receipt of some cash and movable properties as consideration for not claiming any rights in future in the properties set out in the documents. The question before the court was whether by reason of the execution of the documents they were estopped from claiming their share in the properties after the death of Kadir Ali. The Apex Court held that the rule of estoppel would operate and the two brothers were prevented from claiming any right to inheritance which accrued to them on their father's death. The following statement of law is relevant for the purpose of this case:
14. As we are clearly of opinion that there is nothing in law to bar the application of the principle of estoppel, contained in Section 115 of the Evidence Act, against the plaintiff and defendant No. 4, upon the totality of facts found by the final court of facts, which were apparently accepted by the High Court, it is not necessary for us to deal at length with the question whether the facts found could give rise to the inference of a "family settlement" in a technical sense.
15. It is true that in Latafat Hussain's case A.I.R. 1936 All. 573, Suleman, C.J., had observed that the conclusion of the Subordinate Court, that there had been an arrangement between a husband and a wife" in the nature of a family settlement which is binding on the plaintiff, was correct. This was held upon circumstances which indicated that a husband would not have executed a deed of wakf if the wife had not relinquished her claim to inheritance. In other words, an arrangement which may avoid future disputes in the family, even though it may not technically be a settlement or definition of actually disputed claims, was referred to broadly as a family arrangement". It was in this wide sense that, in the case before us also, the first appellant court had considered the whole set of facts and circumstances examined by it to be sufficient to raise the inference of what it described as "a family settlement".
16. As our law relating to family arrangements is based on English law, we may refer here to a definition of a family arrangement in Halsbury's Laws of England, 3rd Edn. Vol.17, P.215-216 where we find;
A family arrangement is an agreement between members of the same family intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour". We also find there: " The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term 'family arrangement' is applied". It is pointed out there; "Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements.
17. As we have already indicated, it is enough for the decision of this case that the plaintiff and defendant No. 4 were estopped by their conduct, on an application of Section 115, Evidence Act, from claiming any right to inheritance which accrued to them, on their father's death, covered by the deeds of relinquishment for consideration, irrespective of the question whether the deeds could operate as legally valid and effective surrenders of their spes successionis. Upon the facts and circumstances in the case found by the courts below we held that the plaintiff and defendant No. 4 could not, when rights of inheritance vested in them at the time of their father's death, claim these as such a claim would be barred by estoppel.
19. The above ruling is sought to be distinguished by learned Counsel for the appellants on the ground that there is an express prohibition in the customary Hindu Law of Pondicherry restraining the owner of properties from disposing of anything in excess of 1/8th share and there is no such prohibition in Mahommedan Law. The argument is fallacious. The question is not whether the proper situs had a power of disposal but whether the rule of estoppel would operate as against the person who has relinquished a future right. The principle enunciated by the Supreme Court in the above ruling would apply on all fours to this case and the three sons of Nannayya Bagavathar are barred by the rule of estoppel from challenging the dispositions made by Nannayya Bagavathar from out of the properties retained by him for his share.
20. The matter can be viewed from another angle also. Under Ex.A-1 a partition is effected and each of the three sons is allotted valuable properties equally. It is not clear from the evidence on record whether the properties retained by Nannayya ware of the same value. No doubt we have already referred to the value given in the subsequent documents of the properties dealt with therein and pointed out that what was retained by him was of Lesser value than that given to the three sons. The learned trial Judge had in his judgment on the first occasion dated 2.1.1975 set out the value of the properties as at the time of suit as determined by the expert valuers. Thai would not be helpful in determining the value of the share retained by Nannayya in 1949. It is quite possible to take the view that the document allots properties to the three sons of such value as they would get ultimately as forming part of the reserve and Nannayya retained the disposable quota for his share and took care to obtain the consent of the sons for disposing of the same. In other words, the father effected a partition of the reserve and retained the quotiti disposible. In fact, in Ex.A-3, dated 17.3.1959 under which he gave certain properties to the first defendant, he referred to the same in the preamble as "donation inter vivos upon his disposible capacity". The properties dealt with in the document were valued at Rs. 26,000 which was very much within his disposable quota. Thus, the three sons having taken their shares in the reserve in advance and given their express consent to the disposition of other properties reserved under the disposable quota with their father, cannot make a claim that the properties given to them under Ex.A-1 would absorb the disposable quota and the remaining properties should be treated as reserve, in which they, according to them, were entitled to exclusive shares,
21. Thus, viewing from any angle, the claim of the plaintiffs is wholly unsustainable and the learned District Judge has rightly rejected the same.
22. It is now necessary to make a reference to a fallacy contained in the judgment of the Division Bench rendered on the earlier occasion in A.S. No. 150 of 1976. The law which prevailed in Pondicherry was set out clearly in the judgment of the trial court on the first occasion and it was pointed out that a two tier system of civil status was applicable to French nationals even prior to the promulgation of code civil was confirmed by Arrete dated 6.4.1819 namely one, the statute as defined in Code Civil, i.e., the French personal Law which was the ordinary law and two, the local status which could be Hindu and Mahommedan customs as they prevailed in Pondicherry at that time, which was the exceptional law. The trial court also pointed out that the first status was applicable to all French nationals of French origin, their descendants, foreigners who acquired French nationality and French indigenous people who renounced their personal status and prayed for being covered for the future by the French Code Civil and the second status was applicable only to the remaining indigenous people. It was clearly stated that the exceptional law which was neither the French Law nor the Hindu Law Applied in the other parts of the country, but a local custom should be restricted to those who were recognised as following that custom from generation to generation and not extended to others as a law of general appliance. It was further stated that the assurance given by the French Government the time of the French settlement and reiterated in Article 3 of Arrete dated 6.4.1819 could apply only to the indigenous stock of population, which was brought under French power by force or treaty with local Indian princes and not to British people who acquired French nationality individually and out of their will. The Division Bench accepted the statement of law found in the judgment of the trial court that there was a two tier system of civil status applicable to French nationals even prior to the promulgation of Code Civil. But, after holding on the facts that Nannayya was a French national because of his birth in Pondicherry, the Bench took the view that it was necessary for the parties to prove that Nannayya's parents were of indigenous stock and stated the proposition of law as follows:
Once Nannayya Bagavadar in found to be a French national, then the customary Hindu Law applicable to Hindus in Pondicherry will automatically apply to the estate of Nannayya Bagavadar.
With great respect to the learned Judges, we must point out that the proposition is erroneous. Once the two tier system in civil status is recognised, it cannot be held that all Hindu nationals would be governed by the customary Hindu law of Pondicherry. As rightly held by the trial court, the customary law is applicable only to those Hindus who were adopting the customary law prevailing in Pondicherry and it would not apply to Hindus who did not choose to change their personal law which was applicable to them in the place of their origin. When admittedly the parties were Sourashtra Brahmins belonging to Madurai, the normal presumption in Hindu Law is that they were governed by the personal law which was prevalent in Madurai, unless there is evidence on record to prove that the family had adopted the customary law prevailing in Pondicherry. It is not as if the family had been living in Pondicherry for several generations. The best that could be said on the evidence is that Nannayya Bagavathar's father had some properties in Pondicherry in addition to his properties in Madurai and Nannayya Bagavathar was born in Pondicherry. The fact that almost all the marriages in the family had taken place in Madurai and all the brothers of Nannayya died at Madurai, would only show that the family had not given up their place of origin, even if it assumed that they had migrated to Pondicherry. Even in the event of a migration by a Hindu from one territory to another, the personal law is carried by him and he will be governed thereby. In Mayne's Hindu Law & Usage, 12th Edition at page 72, the following passage is found:
It becomes the personal law, and a part of the status of every family which is governed by it. Consequently, where any such family migrates to another province, governed by another law, it carries its own law with it, including any custom having the force of law.
23. In Mallathi Anni v. Subbaraya Mudaliar I.L.R. 24 Mad. 650, a Division Bench of this Court held that migration by the widow of a Hindu subject of French India to British India, and acquisition of British Indian domicile, does not change the character of the estate held by the widow, and if she does not adopt the system of law prevalent among Hindus in British India, the property inherited by her from her husband will be held by her according to the customary law of French India.
24. In P. S. Venkataraman v. Srimathi A.S. Janaki (1939)1 M.L.J. 520, Justice Venkataramana Rao referred to the passage in Mayne's Hindu Law extracted above and observed, Therefore in every case where the question arises what is the law by which a person is governed, regard should be had to the law of the class or family to which he belonged. Of course, if he did not belong to any particular class or family it would be the general doctrine of Hindu Law prevalent in that province wherein he resided. Once it is determined what the personal law of a person is, it will continue to be of obligatory force on him.
The learned Judge held that where "a person migrates from one part of India to another, prima facie, he would carry his personal law, but it would also be open to him to renounce that law and be governed by the law prevailing in the locality to which he had migrated, but that must be affirmatively proved. He held that it must be distinctly shown that the person had intended to change and in fact changed his personal law.
25. Unfortunately, the relevant facts of this case and the recognition of a two tier system in the civil status in Pondicherry were overlooked by the Division Bench when they held that Nannayya Bagavathar was governed by the customary Hindu Law of Pondicherry merely because he was a French National by birth. No doubt the parties have not challenged the judgment of this Court and we are also bound by the same, as it will prevail among the parties in this Court.
26. However, the only point decided on the earlier occasion by the Bench was that the disposable quota of Nannayya was 1/8th share in accordance with the customary law. The Bench had no occasion at that time to decide whether the family had adopted the customary Hindu Law of Pondicherry in its entirety and whether it had a family custom in certain matters which could supersede the local customary law. We have already referred to the relevant facts which prove that the family had its origin near Madurai and Nannayya had his moorings continuing there. Ex.A-32, Ex.A-1 and Ex.A-9 prove that the family was following the coparcenary system recognised the rights of the sons even during the life time of their father. Hindu Law recognises the validity of such family customs applicable to particular family only. The following passage in paragraph 39 at pages 51 and 52 of Mayne's Hindu Law and Usage, (12th Edition) states the law succinctly:
The above cases settle a question, as to which there was at first some doubt entertained, viz., whether a particular family could have a usage differing from the law of the surrounding district applicable to similar persons. In one case, the Privy Council observed; "Custom binding inheritance in particular family has long been recognised in India (see Soorendranath Roy v. Heeramonee Buramoneah (1868)12 M.I.A 91,) although such a custom is unknown to the law of this country, (England), and is foreign to its spirit. Custom affecting descent in certain areas or customs affecting rights of inhabitants of a particular district are perhaps the nearest analogies in this country. But in England, if a custom were alleged as applicable to a particular district, and the evidence tendered in its support proved that the rights claimed had been enjoyed by people outside the district, the custom would fail. This principle, however, it seems to their Lordships, ought not to be applied in considering such a custom as the one claimed here since, if the custom were in fact well established in one particular family, whether it were enjoyed or not by another family would not affect the question, since the custom might be independent in each case, and the evidence would not establish that the custom failed by reason of the inability to define the exact limits within which it was to be found when once it was established that within certain and definite limites, it undoubtedly existed.
27. Reference is made to the rulings of the Privy Council in Soorandranath Roy v. Heeramonee Buramoneah (1868)12 M.S.A. 91 and Abdul Hussain Khan v. Bibi Sono Dew (1917)45 LA. 10. The learned author has also said that the breach of a custom in a particular instance need not destroy the custom which may continue to be applicable and the once of proving discontinuance will be upon the person sitting up. It is also stated that where a family custom is proved to exist, such a custom supersedes the general Hindu Law which, however, regulates all beyond the custom. Reference is made in the foot-note to Neel Kiste Deb v. Beer Chundra Thakoor (1869)12 M.I.A. 523 and Shibu Prasad Singh v. Prayag Kumari Debi (1932)51 I.A. 331.
28. The decision of the Privy Council in Balkisan Devohand v. Kunjalal Hiralal Agarwala 58 M.L.J. 358 : 1221.C. 1 : A.I.R. 1930 P.C. 233, is also relevant in this context. In that case, the question related to the validity of an adoption by a widow. The parties were settled in Bombay presidency and the property in dispute was also there and the Mayukha Law was applicable in the locality. It was in evidence that the ancestors of the parties concerned came originally from Delhi where Mithila School of Hindu Law was prevalent. It was found on the evidence that the family was maintaining the old customs which were prevailing in Delhi. The Privy Council held that the Banares School of law applied to the case. The relevant passage in the judgment reads thus:
The first point arises in this way. The property was, as stated, within the Presidency of Bombay, and "within that Presidency it would be possible to establish adoption without proving that the widow had express authority for that purpose; but that would not be the case within the School of Banaras, whose law was applicable in the District of Delhi, from which it is said that the ancestors of the husband of the widow originally came. In this case it is only the existence of the power and not the performance of the ceremony that is questioned and it is therefore, only essential to see whether or not that statement was established. The evidence upon it is undoubtedly slight; but there is some evidence which in their Lordships' opinion, is sufficient to show that that was the origin of the family. There is the definite statement that the old customs prevailing on the Delhi side were still good among the family, and, in their Lordships' opinion, that can only be properly referable to the fact that those customs had been introduced into their present place from Delhi, whence they had originally sprung.
29. Of course, there is no specific plea as to the existence of a family custom superseding the local customary Hindu Law of Pondicherry. But the actual plea is much wider and it will impliedly contain the narrower plea. The written statement refers expressly in more than one place to the original nativity of Nannayya and his ancestors and contends that the Hindu Law as applicable in the Indian territory will apply to this case. This Court has negatived that larger plea in the judgment in A.S. No. 150 of 1976. It is not possible for the parties to get over the same in this Court. But, there is no bar against the court considering the availability of a family custom while considering the question of estoppel which was left open by this Court on the earlier occasion to be decided by the trial court. The trial court is, therefore, well within its bounds in discussing the evidence on record and coming to a conclusion on the existence of a family custom vis-a-vis the doctrine of estoppel which arises out of the deed dated 17.2.1949 between Nannayya and his three sons.
30. In Thirumalal Iyengar v. Subba Raja (1962)1 M.L.J. 193, Jagadisan, J. held that 'the duty of the court is to give effect to the inference to be drawn from the evidence on record and it is not prevented from recording a finding which may not be consistent with the pleadings of either party in a suit". With respect, we agree with the learned Judge and held that the principle is applicable in this case.
31. Thus, there is no error in the approach made by the learned trial Judge and he has not in any way contravened the remand order. We concur with him fully in the view that the plaintiffs are estopped from questioning the dispositions made by Nannayya under Exs. A.3, A4 and A5 in favour of his daughters and grand-children.
32. There is no merit in the appeal, which has to suffer dismissal. Accordingly, the appeal is dismissed with costs of defendants 1 and 2, who are respondents 8 and 9 in the appeal.
33. The 6th defendant, who in her written statement left the matter to the decision of the court has filed a memorandum of Cross-objection challenging the findings of the trial court on the family custom and estoppel. It is highly doubtful whether such a memorandum of cross objections which is not directed against the appellants is maintainable in law. It is not necessary for us to decide the same in this case. We have found against the appellants on merits. The memo of cross-objections raising the same contentions as in the appeal memo is equally unsustainable. It is dismissed without costs.