Madras High Court
Kalaivanan vs Sagayamarie Rayar
Author: R.Subramanian
Bench: R.Subramanian
AS Nos.479 and 480 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
04.10.2023 02.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
A.S.Nos. 479 and 480 of 2016
and Connected Miscellaneous Petitions
AS No.479 of 2016
1. Kalaivanan
2. Vijayalakshmi
3. Sornamala
4. Sangeetha
5. Sarojini ... Appellants/Defendants 1 to 5
Vs
1. Sagayamarie Rayar
D/o. Late Joseph Amalarayan Rayar,
No252, Rue De Blards 38530, Chapareilan, France,
Rep. by her Power of Attorney,
Vijayan, S/o. Vaithilingam,
No.32, Parivallal Street, Shanthi Nagar,
Lawspet, Pondicherry. ... 1st Respondent/Plaintiff
2. Frncois Marie Antoine Rayar
S/o. Late Joseph Amalarayan Rayar,
No.7, Rue Dela Paix, 78130,
Les Mureaux, France.
https://www.mhc.tn.gov.in/judis
1/46
AS Nos.479 and 480 of 2016
3. Marie Victor Djearaj Rayar
S/o. Late Joseph Amalarayan Rayar,
No.20, Lotissement La Marie,
13109, Simiane - Collongue,
France. ... Respondents 2 & 3/
Defendants 6 & 7
This appeal is filed under Section 96 r/w Order 41 Rule 1 of the
Code of Civil Procedure, to set aside the judgement and decree dated
21.03.2016, passed in O.S.No.127 of 2012 and counter claim, on the file
of the III Additional District Judge, Puducherry.
AS No.480 of 2016
1. Kalaivanan
2. S.Muthukrishnan ... Appellants/Defendants 1 &2
Vs
1. Sagayamarie Rayar
D/o. Late Joseph Amalarayan Rayar,
No252, Rue De Blards 38530, Chapareilan, France,
Rep. by her Power of Attorney,
Vijayan, S/o. Vaithilingam,
No.32, Parivallal Street, Shanthi Nagar,
Lawspet, Pondicherry. ... 1st Respondent/Plaintiff
2. R.Rajendiran
3. S.Sekar
4. M.Natarajan ... Respondents 2 to 4/
Defendants 3 to 5
https://www.mhc.tn.gov.in/judis
2/46
AS Nos.479 and 480 of 2016
5. Frncois Marie Antoine Rayar
S/o. Late Joseph Amalarayan Rayar,
No.7, Rue Dela Paix, 78130,
Les Mureaux, France.
6. Marie Victor Djearaj Rayar
S/o. Late Joseph Amalarayan Rayar,
No.20, Lotissement La Marie,
13109, Simiane - Collongue,
France. ... Respondents 5 & 6/
Defendants 6 & 7
This appeal is filed under Section 96 r/w Order 41 Rule 1 of the
Code of Civil Procedure, to set aside the judgement and decree dated
21.03.2016, passed in O.S.No.132 of 2012 and counter claim, on the file
of the III Additional District Judge, Puducherry.
For Appellants : Mr.S.Subbiah, Senior Counsel
(in both the Appeals) Assisted by Mr.A.V.Arun
for Mr.P.Raja
For Respondents : Mr.Prakash Adiapadam, for R1
(in both the Appeals)
R2 & R3 - served - No appearance
(in AS No.479/16)
RR2 to 4 - Notice Dispensed with
(in AS No.480/16)
RR 5 & 6 - Served - No appearance
(in AS No.480/16)
https://www.mhc.tn.gov.in/judis
3/46
AS Nos.479 and 480 of 2016
COMMON JUDGEMENT
(Judgment of the Court was delivered by R.SUBRAMANINA, J.)
These two Appeals are at the instance of the alienees of certain
properties from one Mrs.Marie Louise Rayar, widow of Joseph
Amalarayan Rayar. Two suits were laid by the first respondent in both the
Appeals seeking a declaration that seven Sale Deeds executed by
Mrs.Marie Louise Rayar, during the years 2010, 2011 and 2012 as void
and for partition and separate possession of her 1/3rd share in the said
properties.
2. According to the plaintiff in both the suits, the suit properties
subject matter of both the suits were purchased in the year 1965 and 2005
by her mother late Mrs.Marie Louise Rayar, during the subsistence of a
marriage with Joseph Amalarayan Rayar, father of the plaintiff. Claiming
that both Joseph Amalarayan Rayar and Marie Louise Rayar, were
French Nationals and hence the French Code Civil would apply to them,
the plaintiff pleaded that the properties acquired by Mrs.Marie Louise
Rayar belonged to the community and Mrs.Marie Louise Rayar did not
have an absolute right of disposition over the said properties. Citing the
https://www.mhc.tn.gov.in/judis
4/46
AS Nos.479 and 480 of 2016
French Code Civil, it was contended by the plaintiff that if Mrs.Marie
Louise Rayar, had exercised her option of retaining a 1/4 th share, she
would be entitled to 1/4th share and in the absence of such exercise of
option, she would only be entitled to the usufructs. On her death, the
property devolved on her two sons and a daughter viz. the plaintiff and
defendants 6 and 7 in both the suits. Therefore, according to the plaintiff,
the alienations made by Mrs.Marie Louise Rayar, in favour of the
defendants 1 to 5 in both the suits are invalid and will not bind the
plaintiff or the other legal heirs of the deceased Mrs.Marie Louise Rayar.
3. The suits were resisted by the purchasers contending that neither
Joseph Amalarayan Rayar nor Mrs.Marie Louise Rayar, who were
married on 18.01.1961 at Pondicherry, were French Nationals. Citing the
Treaty of Franco Indian Cession between the Republic of India and
France, it was contended that unless it is shown that a person domiciled
in Pondicherry at the time of enforcemnt of Treaty of Franco Indian
Cession had exercised his option to retain the French Nationality, within
a period of six months, from the notified date he/she would automatically
become an Indian National in view of Article V of the Treaty of Franco
Indian Cession. It was contended that since neither the husband nor the
https://www.mhc.tn.gov.in/judis
5/46
AS Nos.479 and 480 of 2016
wife were shown to have exercised their option, they would not be
French Nationals and after the extension of the Indian Succession Act to
Puducherry, during the year 1981 the same would apply.
4. It was also contended that there was no question of forming a
communite legale between them and they would be governed by the
provisions of the Indian Succession Act, which was extended to
Puducherry on and from 01.04.1982. It was also pleaded that assumption
of French Nationality is not a matter of presumption and the same will
have to be proved like any other fact. It was also pleaded that the suits
were barred by limitation.
5. On the above pleadings, the learned Trial Judge framed the
following issues in OS No.127 of 2012:
1.Whether the French Law is applicable in the
instant suit;
2.Whether the suit property is a community
property;
3.Whether the sale deed of plot No.86 dt.
17.10.2011 registered on 17th October 2011 in favour of
Sangeetha wife of Namachivayam, the fourth defendant
the sale of plot No.87 also dated 17.10.2011 also
https://www.mhc.tn.gov.in/judis
6/46
AS Nos.479 and 480 of 2016
registered on 17.10.2011 in favour of Sangeetha
w/o.Namachivayan, the fourth defendant, the sale deed
of plot No.58 dated 17.10.2011 and registered on the
same date of 17.10.2011 and registered on the same date
of 17.10.2011 in favour of S.Sarojini wife of Sambandan,
the fifth defendant the sale deed of plot No.52, 53 dated
26.04.2012 registered on 2.5.2012 in favour of
M.Kalaivanan S/o.S.Muthukrishnan, the first defendant,
the sale deed of plots No.54,55,56,89,90,91 & 92 dated
26.04.2012 and registered on 27th April 2012 in favour
of M.Kalaivanan S/o.Muthukrishnan the first defendant
the sale deed of plot No.57 dated 7.5.2012 and
registered on 7.5.2012 in favour of G.Vijayalakshmi
w/o.R.Muthunarayanan, the second defendant, the sale
deed of plot No.88 dated 7.5.2012 and registered on
7.5.2012 in favour of M.Sornamala w/o. Sekar the third
defendant are all null and void and to be cancelled;
4. Whether the 6th defendant and the 7th defendant
are entitled for any share in the property;
5. Whether Marie Louis Rayar & Joseph
Amalarayan Rayar were Indian Citizens and
government by the Indian Succession Act;
6. Whether the suit is barred for misjoinder and
non joinder of parties;
7. Whether the suit is barred by limitation; and
8. To what other relief the plaintiff, 6th defendant
https://www.mhc.tn.gov.in/judis
7/46
AS Nos.479 and 480 of 2016
and 7th defendant are entitled?
The following issues were framed in OS No.132 of 2012:
1. Whether the French Law is applicable in the
instant suit;
2. Whether the suit property is a community
property;
3. Whether the sale deed dated 30.12.2012
executed by late Rayar Marie Louise in favour of first
defendant is valid or null and void;
4. Whether the 6th defendant and the 7th defendant
are entitled for any share in the property;
5. Whether the Marie Louis Rayar & Joseph
Amalarayan Rayar were Indian Citizens and government
by the Indian Succession Act;
6. Whether the suit is barred for misjoinder of
parties;
7. Whether the suit is barred by limitation;
8. To what other relief the plaintiff, 6th defendant
and 7th defendant are entitled?
6. The suits were tried separately though both the suits ought to
have been tried together. Except the suit property and the prayer, the
pleadings in both the suits were substantially the same.
https://www.mhc.tn.gov.in/judis
8/46
AS Nos.479 and 480 of 2016
7. At Trial the Power Agent of the plaintiff was examined as P.W.1
and Exs. A1 to A25 were marked. On the side of the defendants, D.Ws.1
to 7 were examined and Exhibits B1 to B20 were marked.
8. The learned Trial Judge, upon a consideration of the evidence on
record concluded that the deceased Mrs.Marie Louise Rayar is a French
National and as such the French Code Civil would apply to her. Upon
such conclusion, the learned Trial Judge held that the Sale Deeds
executed by Mrs.Marie Louise Rayar, which were impugned in the suits
are not valid and the plaintiff and defendants 6 and 7 in the suits would
be entitled to 1/3rd share each in the suit properties. Since the defendants
6 and 7 had laid a counter claim by paying Court Fee, the learned Trial
Judge granted a preliminary decree in their favour also. Aggrieved, the
defendants 1 to 5 in both the suits are on Appeal.
9. We have heard Mr.S.Subbiah, learned Senior Counsel assisted
by Mr.A.V.Arun, for Mr.P.Raja, appearing for the appellants in both the
Appeals and Mr.Prakash Adiapadam, learned counsel appearing for the
first respondent in both the Appeals.
https://www.mhc.tn.gov.in/judis
9/46
AS Nos.479 and 480 of 2016
10. Mr.S.Subbiah, learned Senior Counsel appearing for the
appellants would vehemently contend that there is no evidence to prove
the fact that Mrs.Marie Louise Rayar had in fact exercised her option as
required under Article V of the Treaty of Franco Indian Cession dated
28.05.1956 entered into between the Republics of France and India.
Drawing our attention to Article IV of the Treaty of Franco Indian
Cession, the learned Senior Counsel would contend that all French
Nationals domiciled in Puducherry after the date of the entry into force of
Treaty of Franco Indian Cession, i.e. 16.08.1962 will automatically
become Indian Nationals, of course subject to the exceptions under
Article V. Those persons domiciled in the French Territory were given an
option to make a written declaration within six months from the date of
entry into force of the Treaty of Franco Indian Cession choosing to retain
their Nationality and such persons will never acquire Indian Nationality.
He would also draw our attention to the specific provision in Article V to
the effect that a choice of the husband will not affect the Nationality of
the spouse. Therefore, according to the learned Senior Counsel, unless it
is shown that Mrs.Marie Louise Rayar, had by her own volition made a
declaration required under Article V, she would not acquire French
Nationality and on and from 16.08.1962, she would be an Indian
https://www.mhc.tn.gov.in/judis
10/46
AS Nos.479 and 480 of 2016
National and since all the properties subject matter of both the suits were
acquired after the said date, they would not form part of the property of
the community.
11. Arguing further the learned Senior Counsel would submit that
the provisions of the French Code Civil would apply only to French
Nationals living in Puducherry and not to the others, who become Indian
Citizens after the cessation of Territories by France to Republic of India
with effect from 16.08.1962. The learned Senior Counsel would also
draw our attention to the provisions of the Indian Succession (Extension
to Puducherry) Act 1980, which came into force with effect from
01.11.1982, to buttress his contention that it is the Indian Succession Act
39 of 1925 which would apply to Christians in Puducherry from the date
of its extension viz. 01.11.1982.
12. The learned Senior Counsel would also point out that Section
1A of the Indian Succession Act which was introduced by the Indian
Succession (Extension to Puducherry) Act, 1980 excludes the
applicability of the principle enactment to renoncants in Puducherry.
Insofar as the renoncants are concerned, it is the Customary Hindu Law
https://www.mhc.tn.gov.in/judis
11/46
AS Nos.479 and 480 of 2016
that would apply and not the French Code Civil. In support of his
contention that the French Code Civil will apply only to French
Nationals and it cannot be applied to govern succession of the natives,
who had not exercised their option within the prescribed period, the
learned Senior Counsel would draw our attention to the Statement of
Objects and Reasons of Act 10 of 1980, which reads as follows:
STATEMENT OF OBJECTS AND REASONS FOR ACT
NO.10 OF 1980
The question of extending the Indian Succession Act,
1925 to the Union territory of Puducherry has been
engaging the attention of this Administration for quite some
time. Various seminars have been conducted by this
Administration on the advice of the Government of India to
elicit public opinion on the proposal. After examination, it is
proposed to extend the Indian Succession Act, 1925, to fall
in line with other parts of the country in the matter of
succession, with provision that it shall not apply to
"Renoncants" as in the case of other personal laws extended
to this Union territory.”
https://www.mhc.tn.gov.in/judis
12/46
AS Nos.479 and 480 of 2016
13. The learned Senior Counsel would draw our attention to the
pleadings where it is claimed that the plaintiff’s father and mother were
French Nationals and hence the property that was purchased during the
subsistence of the marriage would belong to the community. The learned
Senior Counsel would also draw our attention to the evidence of P.W.1 in
cross-examination, wherein he would admit that he has not filed any
document to show that either Mrs.Marie Louise Rayar or her husband
Joseph Amalarayan Rayar are French Nationals. He would also point out
that the said witness, who is the Power of Attorney Agent of the plaintiff,
had conceded that their Marriage Certificate does not show that they are
French Nationals.
14. Learned Senior Counsel would point out that Ex.A7 a Sale
Deed under which Mrs.Marie Louise Rayar had purchased some of the
properties contains a reference to her Passport and he has claimed that it
is a French Passport. Faulting the plaintiff for non-production of the
passport, the learned Senior Counsel would urge us to draw an adverse
inference against the plaintiff. He would also point out that there is no
agreement between the spouses that existed regarding the sharing of the
properties that were purchased by the spouses during the subsistence of
https://www.mhc.tn.gov.in/judis
13/46
AS Nos.479 and 480 of 2016
the matrimony. The learned Senior Counsel would also invite our
attention to the Book on Private International Law by Cheshire and North
to contend that the law relating to immovable property would be
governed by the law of the situs and not by the law of the testator’s
domicile. The learned Senior Counsel would draw our attention to the
following passage in Cheshire and North’s Private International Law,
thirteenth edition, in support of his contention:
“We have seen earlier that, under the principle of
scission, succession to immovables is governed, not by
the law of the testator’s domicil, but by the law of the
situs.
Accordingly, where the owner of immovables dies
intestate, the order of descent or distribution prescribed
by the law of the situs is applied by the English Court no
matter what his domicil may have been.”
15. The learned Senior Counsel would also draw our attention to
the judgment of the Division Bench of this Court in Muthaiyan vs.
Poongothai and Ors. reported in 2018 (1) LW 209, in support of his
contention that after the French Territories in India were ceeded by the
Republic of France i.e. after 16.08.1962, the locals or the natives, living
in those territories would become Indian Nationals and it is the Indian
https://www.mhc.tn.gov.in/judis
14/46
AS Nos.479 and 480 of 2016
Law that would apply to them, of course with an exception that for those
persons, who had exercised their option to retain their French
Nationality, the French Law would continue to apply and for those who
are renoncants, the Customary Hindu Law that was in vogue in
Puducherry, before 16.08.1962 would apply. He would also rely upon
the judgment of Hon’ble Mr.Justice V.Ramasubramanian, in M.Kadirvelu
& Others vs. G.Santhanlakshmi and others, reported in 2016 (3) LW
385, wherein the learned Judge, after referring extensively to the Article
of Sri.D.Ramabathiran, a retired District Judge from Pondicherry, had
held that Mitakshara School of Hindu Law would not apply to
Puducherry and there is no concept of joint family. He would also
conclude that all the inhabitants of Pondicherry at the enactment of the
Pondicherry Administration Act, 1962 cannot be presumed to be
renoncants. While doing so, the learned Judge observed as follows:
53. But, the real question is as to whether all the
inhabitants of Pondicherry at the time of enactment of
Pondicherry Administration Act, 1962 were renouncants
or not, irrespective of the date of their migration to
Pondicherry. To presume that all inhabitants of
Pondicherry, on the date of the coming into the force of
the Treaty of Cession, were renouncants, does not
appear to be correct. By the very fact that the French
https://www.mhc.tn.gov.in/judis
15/46
AS Nos.479 and 480 of 2016
Government gave an option either to renounce their
Personal Law and get assimilated into French system or
to continue to be governed by the Local Customary
Personal Law, would show that only those, who
exercised the option, could become renouncants.
16. Relying upon the above observations of the learned Judge, the
learned Senior Counsel would contend that only those persons, who had
exercised their options within the time stipulated under Article V of the
Treaty of Franco Indian Cession would become French Nationals and
others would automatically become Indian Nationals. Our attention is
also drawn by the learned Senior Counsel to the judgment of another
Division Bench of this Court in Sandana Rene Lucien Joseph and
others Vs. Sandana Vincent Maria Anthony and others, reported in
2018 (1) CTC 481, wherein the Division Bench had held that in view of
Section 5 of the Indian Succession Act, succession to immovable
property situate within the Territory of India shall be regulated by the
Law of India irrespective of the domicile of the person, who owned such
immovable property, whether he or she is alive or dead. The Division
Bench which considered the question of the preemptive right conferred
on the siblings under French Code Civil and held that the same cannot be
https://www.mhc.tn.gov.in/judis
16/46
AS Nos.479 and 480 of 2016
applied. In doing so, the Division Bench after referring to the judgment
of Hon’ble Mr. Justice V.Ramasubramanian, cited above held as follows:
22. Thus, as per Section 5 of the Indian Succession
Act, all the immovable properties within the territory of
India shall be regulated by the law of India irrespective
of the domicile of the person who own such immovable
property, whether he or she is alive or dead. In this case,
admittedly, the immovable property purchased by the
first defendant is situate within the Union Territory of
Pondicherry. Even though the plaintiff and defendants 2
to 6 are French Nationals, in transactions relating to
immovable property such as sale, mortgage or Will, they
are governed by the local laws prevailing in the place
where such property is situate. This position is very clear
from the decision rendered by the Honourable Supreme
Court in the decision cited supra in Sankaran Govindan
case. Further, in the decision of the Division Bench of
this Court rendered in (M. Kadirvelu v. G.
Santhanalakshmi) reported in 2016 3 Law Weekly 385 it
was held that as per Section 3 read with First Schedule
to the Pondicherry (Laws) Regulation, 1963, the
provisions of the Hindu Succession Act, 1956 were
extended to the inhabitants of the Union Territory of
Pondicherry, subject to one restriction namely in so far
as renouncants are concerned, the Hindu Succession Act
would not have any application. In the present case,
https://www.mhc.tn.gov.in/judis
17/46
AS Nos.479 and 480 of 2016
admittedly, there is no evidence to show that the
father/first defendant is a renouncant so as to disentitle
him to come within the purview of the Indian Succession
Act. Even if it is the case of the plaintiff that the plaintiff
and defendants 1 to 6 are renouncants and they have
renounced their personal laws and got assimilated into
the French System, it must be specifically pleaded and
proved. In the present case, there was no pleading made
by the plaintiff in the plaint to that effect. Further, we are
also fortified by the decision rendered by the Division
Bench of this Court in A.S. No. 589 of 2010 dated
06.09.2017 in the case of (Mathaiyan v. Poongothai)
wherein it was held in para No. 25 as follows:—
“………Therefore, we are of the view that those
Hindus, who are domiciled at Pondicherry will be
governed by Hindu Succession Act after 01.10.1963,
unless they accrue any right under the Customary Hindu
law before 01.10.1963. In so far as French Nationals,
who are renoscants, the Hindu Succession Act will not
apply. So far as all others are concerned, only Hindu
Succession Act will apply. In the instant case, the
plaintiff neither got any accrued right under the
Customary Law before 01.10.1963 nor claimed any right
as renoscant and hence Hindu Succession Act alone will
apply to the plaintiff in this case. The parties to the
appeal are governed only by Hindu Succession Act and
https://www.mhc.tn.gov.in/judis
18/46
AS Nos.479 and 480 of 2016
customary Hindu Law will have no application to their
case.”
17. Contending contra, Mr.Prakash Adiapadam, learned counsel
appearing for the respondent would submit that there is enough and more
evidence to show that both Mrs.Marie Louise Rayar and Joseph
Amalarayan Rayar are French Nationals. The learned counsel would
draw our attention to Exs.A17 and A18 in OS No.132 of 2012 and
Exs.A23 and A24 in OS No.127 of 2012 to contend that Mrs.Marie
Louise Rayar was declared to be a French National by the Court of
Competent jurisdiction at France. While Ex.A23 in OS No.127 of 2012
is an Identity Card issued to Mrs.Marie Louise Rayar on 16.02.2016,
Ex.24 is the order of the Court of first instance dated 09.11.2011 that
Mrs.Marie Louise Rayar is a French National by filiation on the premise
that her husband Joseph Amalarayan Rayar had retained French
Nationality and he has subscribed the option on 15.02.1963 as required
under Article V of the Treaty of Franco Indian Cession. A copy of the
livret de famille, which has been produced as Ex.22 is also relied upon
by Mr.Prakash Adiapadam, would contend that both Joseph Amalarayan
Rayar and Mrs.Marie Louise Rayar were French Nationals. Two of the
https://www.mhc.tn.gov.in/judis
19/46
AS Nos.479 and 480 of 2016
above documents viz. the Identity Card and the Order of the Court of first
instance Exs.A23 and A24) have been produced in OS No.132 of 2012 as
Exs.A17 and A18.
18. An objection is taken by Mr.Subbiah, learned Senior Counsel
appearing for the appellants to the effect that only photo copies of the
documents have been marked and no reason has been assigned for non-
production of the original. Therefore, according to him, in the absence of
any reason which would justify the non-production of the originals as
required under Section 65 of the Indian Evidence Act, the Trial Court
was not right in admitting those documents as secondary evidence. He
would also draw our attention to certain proceedings of the Trial Court
which would go to show that an objection was taken to the marking of
photo copies of these documents without proper reasons as required
under Section 65 of the Indian Evidence Act, in support of his
submissions.
19. These four documents which are photo copies were received in
evidence by reopening the plaintiff’s evidence in OS No.132 of 2012 and
the additional proof affidavit filed by P.W.1 with reference to production
https://www.mhc.tn.gov.in/judis
20/46
AS Nos.479 and 480 of 2016
of these documents reads as follows (cause title omitted):
Additional Chief Examnation Affidavit of P.W.1
I, Vijayan son of Vaithialingam, Hindu, aged 29 years,
residing at No.32, Parivallal Street, Shanthi Nagar, Lawspet,
Pondicherry do hereby solemnly and sincerely affirm and state
as follows:
1. I state that I am the power agent of Ms.Sagayamarie
Rayar herein and I am fully aware of the facts of the
case. I was already examined as P.W.1. I am recalled
for the purpose of marking additional documents.
2. I state I had filed additional list of documents and the
list has been accepted by this Hon'ble Court.
3. I state that the following are the remaining documents.
LIST OF DOCUMENT
1 22.11.19 Livret de Famile Notary Issued by officer of
94 attested Photocopy etat civil Pondicherry
2 Valid Identity Card to Marie Issued by Consulat
upto Louise Rayar Photocopy General de France at
16.02.20 Pondicherry
16
3 -- -- 1989 Certificate of French Issued by Court of
nationality of Marie Louise Instance Corbeil-
Rayar Photocopy with essonnes 91 France
English Translation
Photocopy
4 23.07.20 Copy of FIR in Crime By Grand Bazaar
13 No.164/2013 Police Station
Pondicherry
https://www.mhc.tn.gov.in/judis
21/46
AS Nos.479 and 480 of 2016
The Additional proof affidavit filed in OS No.127 of 2012 reads as
follows (cause title omitted):
Additional Chief Examnation Affidavit of P.W.1
I, Vijayan son of Vaithialingam, Hindu, aged 29 years,
residing at No.32, Parivallal Street, Shanthi Nagar, Lawspet,
Pondicherry do hereby solemnly and sincerely affirm and
state as follows:
1. I state that I am the power agent of
Ms.Sagayamarie Rayar herein and I am fully aware of
the facts of the case. I was already examined as
P.W.1. I am recalled for the purpose of marking
additional documents.
2. I state I had filed additional list of documents and
the list has been accepted by this Hon'ble Court.
3. I state that the following are the remaining
documents.
https://www.mhc.tn.gov.in/judis
22/46
AS Nos.479 and 480 of 2016
LIST OF DOCUMENT
1 22.11.1994 Livret de Famile Notary Issued by officer of etat
attested Photocopy civil Pondicherry
2 Valid upto Identity Card to Marie Louise Issued by Consulat
16.02.2016 Rayar Photocopy General de France at
Pondicherry
3 -- -- 1989 Certificate of French Issued by Court of
Nationality of Marie Louise Instance Corbeil-
Rayar Photocopy with essonnes 91 France
English Translation
Photocopy
4 23.07.2013 Copy of FIR in Crime By Grand Bazaar Police
No.164/2013 Station Pondicherry
20. Pointing out the fact that there is no reason whatsoever that
would satisfy the requirements of Section 65 of the Indian Evidence Act,
Mr.Subbiah, the learned Senior Counsel would submit that admission of
these documents in evidence itself is flawed. He would further point out
that soon after these documents were marked two applications were filed
by the defendants in IA No.725 of 2015 in OS No.127 of 2012 and IA
No. 726 of 2015 in OS No.132 of 2012 seeking to eschew these
documents from the evidence. The orders passed there on have been
placed before us.
https://www.mhc.tn.gov.in/judis
23/46
AS Nos.479 and 480 of 2016
21. As far as IA No.725 of 2015 in OS No.127 of 2012 is
concerned, the learned Additional District Judge by her order dated
31.07.2015, noted the fact that the document has been marked subject to
objections and the objections will have to be decided at the time of
deciding the suit itself. On the above premise, the learned Additional
District judge dismissed the said application. However, while dealing
with IA No.726 of 2015 in OS No.132 of 2012, the learned Additional
District Judge relied upon the judgment of this Court in 2012 (6) CTC
648, and allowed the application for rejecting the Xerox copies of
Exs.A17 and A18. Therefore, insofar as OS No.132 of 2012 is concerned,
these two documents viz. Exs.A17 and A18 are not on record. In the
other suit viz.OS.No.127 of 2012, the Court ought to have decided, as to
whether, the plaintiff could be permitted to produce secondary evidence
in the absence of any reason that would satisfy the requirements of
Section 65 of the Indian Evidence Act.
22. Mr.Prakash Adiapadam, learned counsel would submit that the
Service Register of Joseph Amalarayan Rayar, husband of Marie Louise
Rayar, has been produced by summoning the same from the Government
of Puducherry and in the said document, there is an endorsement to the
https://www.mhc.tn.gov.in/judis
24/46
AS Nos.479 and 480 of 2016
effect that Joseph Amalarayan Rayar had opted to be a French National.
That endorsement is dated 17.08.1980. Therefore, according to the
learned counsel, this endorsement made in the Service Register would be
sufficient proof of the fact that both Joseph Amalarayan Rayar and his
wife Marie Louise Rayar were French Nationals and they had exercised
their option. The learned counsel would submit that once the copies
have been admitted, the same cannot be rejected for want of reasons. We
must, at this juncture, point out that the order in IA No.725 of 2016 was
subject matter of challenge before this Court in CRP No.3580 of 2015
and this Court had held that since the Court has reserved a decision on
the admissibility of the documents, at the time of deciding the suit it
would not interfere in revision.
23. Mr.Prakash Adiapadam, learned counsel appearing for the
respondents would make an attempt to project reasons for non marking
of the original documents by referring to the FIR that had been lodged on
23.07.2013 to the effect that the defendants were in fact taking care of
the parents of the plaintiffs and the jewels and documents kept in the
house have been taken away by the defendants. This complaint is made
after the suit and the same was not pursued further. A Final Report was
https://www.mhc.tn.gov.in/judis
25/46
AS Nos.479 and 480 of 2016
filed closing the same on the ground that the Civil Suit is pending.
Moreover, the documents viz. Exs.A23 and A24 are not specifically
referred to in the said complaint.
24. As rightly pointed out by Mr.Subbiah, learned Senior Counsel
appearing for the appellants, a reason for non production of the original
document must be made by the party concerned at the time of production
of the documents and not at the appellate stage. That too, after the
marking of those documents which are copies was challenged and the
Court having upheld the challenge in one case and postponed the
determination of the challenge in another case.
25. On the above arguments of the counsel on either side, the
following points arise for determination:
(i) Whether Mrs.Marie Louise Rayar had
exercised her option to retain her French Nationality
as required under Article V of the Treaty of Franco
Indian Cession;
(ii) Whether the Trial Court was right in
looking into the documents which were rejected in
https://www.mhc.tn.gov.in/judis
26/46
AS Nos.479 and 480 of 2016
OS No.132 of 2012;
(iii) Whether the Trial Court was right in not
considering the non production of primary evidence
in OS No.127 of 2012; and
iv. Whether the exercise of option by the
husband viz. Joseph Amalarayan Rayar would enure
to the benefit of the plaintiffs to contend that his wife
is also a French National.
Point No.1:
26. Article IV and V of Treaty of Franco Indian Cession, read as
follows:
Article IV: French Nationals born in the territory
of the Establishments and domiciled therein at the date of
the entry into force of the Treaty of Cession shall become
nationals and citizens of the Indian Union, with the
exceptions enumerated under Article V hereafter.
Article V: The persons referred to in the previous
article may, by means of a written declaration drawn up
within six months of the entry into force of the Treaty of
Cession, choose to retain their nationality. Persons
availing themselves of this right shall be deemed never to
https://www.mhc.tn.gov.in/judis
27/46
AS Nos.479 and 480 of 2016
have acquired Indian nationality. The declaration of the
father or, if the latter be deceased, of the mother, and in
the event of the decease of both parents, of the legal
guardian shall determine the nationality of unmarried
children of under 18 years of age. Such children shall be
mentioned in the aforesaid declaration. But married male
children of over 16 years of age shall be entitled to make
this choice themselves. Persons having retained French
nationality by reason of a decision of their parents, as
indicated in the previous paragraph, may make a
personal choice with the object of acquiring Indian
nationality by means of a declaration signed in the
presence of the competent Indian authorities, within six
months of attaining their eighteenth birthday. The said
choice shall come into force as from the date of signature
of the declaration.
The choice of a husband shall not affect the
nationality of the spouse. The declarations referred to in
the first and second paragraphs of this Article shall be
drawn up in two copies, the one in French, the other in
English, which shall be transmitted to the competent
French authorities. The latter shall immediately transmit
to the competent Indian authorities the English copy of
the aforesaid declaration.
26.1. A reading of the above Articles would show that all French
https://www.mhc.tn.gov.in/judis
28/46
AS Nos.479 and 480 of 2016
Nationals, who had either born or domiciled in the territory of the French
establishments in India, at the date of entry into force of the Treaty of
Franco Indian Cession would become citizens of the Indian Union,
subject to the exceptions carved out under Article V. Article V entails
those persons, who are either born or domiciled in the French
establishments at the date of entry into force of the Treaty of the Franco
Indian Cession, to exercise their option to continue as French Nationals
within a specified period viz. six months. Combined effect of Articles IV
and V would be only those French Nationals, who are either born or
domiciled in the Territories of the French establishment in India, who
exercise an option within the period of six months from 16.08.1962
would retain their French Nationality, all others will automatically
become citizens of the Indian Union. The Article also prescribes the
form in which the declaration of exercise of option should be made.
Therefore, unless it is established that the individual had exercised
his/her option within the time stipulated under Article V, he/she would
become an Indian National automatically.
26.2. Care is also taken to make the option applicable only to the
individual concerned and not to his or her spouse. The exercise of option
https://www.mhc.tn.gov.in/judis
29/46
AS Nos.479 and 480 of 2016
by the husband will not enure to the benefit of the wife and vice versa.
Insofar as the husband viz. Joseph Amalarayan Rayar is concerned, no
doubt there is some evidence to show that he had exercised an option that
is available in the form of an endorsement made by him, sometime in
August 1980 in his service records. As far as Mrs.Marie Louise Rayar is
concerned except Exs.A17 and A18 in OS No.132 of 2012 and Exs.A23
and A24 in OS No.127 of 2012, no other document is available to show
that she had exercised her option. Even those documents do not show
that she had exercised her option. The order of the Court of First Instance
that is sought to be pressed in to service is based on filiation. As far as
Exs.A17 and A18 in OS No.132 of 2017 are concerned, the Trial Court
by its order dated 31.07.2005 has rejected those documents, therefore
those documents cannot form the basis for the conclusion that she had
exercised her option. As regards OS No.127 of 2012 is concerned, the
Court had merely postponed the decision of the admissibility of the photo
copies by its order dated 31.07.2015 made in IA No.725 of 2015.
Unfortunately the Court while disposing of the suit had not adverted to
these orders that were passed on 31.07.2005 and proceeded to rely upon
these copies to conclude that Mrs.Marie Louise Rayar is a French
National on the basis of these documents. This, in our considered
https://www.mhc.tn.gov.in/judis
30/46
AS Nos.479 and 480 of 2016
opinion, cannot be approved.
26.3. Section 65 of the Indian Evidence Act governs reception of
secondary evidence and it reads as follows:
65. Cases in which secondary evidence relating to
documents may be given.––
Secondary evidence may be given of the existence,
condition, or contents of a document in the following
cases: ––
(a) when the original is shown or appears to be in
the possession or power –
of the person against whom the document is sought to be
proved, or
of any person out of reach of, or not subject to, the
process of the Court, or
of any person legally bound to produce it,
and when, after the notice mentioned in section 66, such
person does not produce it;
(b) when the existence, condition or contents of the
https://www.mhc.tn.gov.in/judis
31/46
AS Nos.479 and 480 of 2016
original have been proved to be admitted in writing by
the person against whom it is proved or by his
representative in interest;
(c) when the original has been destroyed or lost,
or when the party offering evidence of its contents
cannot, for any other reason not arising from his own
default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to
be easily movable;
(e) when the original is a public document within
the meaning of section 74;
(f) when the original is a document of which a
certified copy is permitted by this Act, or by any other
law in force in [India] to be given in evidence;
(g) when the originals consist of numerous
accounts or other documents which cannot conveniently
be examined in Court, and the fact to be proved is the
general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the
contents of the document is admissible.
https://www.mhc.tn.gov.in/judis
32/46
AS Nos.479 and 480 of 2016
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no
other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general
result of the documents by any person who has examined
them, and who is skilled in the examination of such
documents.
26.4. A party to a proceeding who seeks to rely upon secondary
evidence has to satisfy the requirements of Section 65 of the Indian
Evidence Act. We have already extracted the proof affidavit filed in
support of these documents, there is not even a whisper regarding the
non-availability of the originals. None of the requirements of Section 65
of the Indian Evidence Act, have been satisfied. In fact in OS No.127 of
2012 the documents have been received subject to objections and the
Court had postponed the decision of the objections while passing orders
in IA No.725 of 2015. Therefore, if we are to look for reasons for
reception of secondary evidence, we must say that we draw a blank. In
the absence of any reason which would satisfy the stringent requirements
of Section 65 of the Indian Evidence Act, we do not think we can look
https://www.mhc.tn.gov.in/judis
33/46
AS Nos.479 and 480 of 2016
into the documents particularly photo copies. We are therefore left
without any evidence on the question of exercise of option by Mrs.Marie
Louise Rayar as required under Article V of the Treaty of Franco Indian
Cession.
26.5. Even the order of the Court of first instance dated 09.11.2011
would show that it is based on a declaration made by the ancester viz. the
grandfather of the husband Joseph Amalarayan Rayar in the year 1882
and the declaration made by Joseph Amalarayan Rayar on 15.02.1963 as
required under Article V of the Treaty of Franco Indian Cession. Even
assuming that the document could be looked into, it is based on a
declaration made by the husband which is specifically prohibited under
Article V of the Treaty of Franco Indian Cession. We are therefore
unable to agree with the Trial Court when it held that Mrs.Marie Louise
Rayar is a French National and she had in fact exercised her option as
required under Article V.
Point No.1 is answered in favour of the appellants.
Point Nos.2 & 3:
27. As we had already pointed out that the marking of these
https://www.mhc.tn.gov.in/judis
34/46
AS Nos.479 and 480 of 2016
documents as secondary evidence was objected to by the defendants in
two interlocutory applications viz. IA Nos.725 and 726 of 2015 in OS
No.127 of 2012 and 132 of 2012 respectively. While it postponed the
decision in OS No.127 of 2012, it held that the documents cannot be
received in evidence in OS No.132 of 2012. Those orders read as
follows:
https://www.mhc.tn.gov.in/judis
35/46
AS Nos.479 and 480 of 2016
https://www.mhc.tn.gov.in/judis
36/46
AS Nos.479 and 480 of 2016
https://www.mhc.tn.gov.in/judis
37/46
AS Nos.479 and 480 of 2016
https://www.mhc.tn.gov.in/judis
38/46
AS Nos.479 and 480 of 2016
https://www.mhc.tn.gov.in/judis
39/46
AS Nos.479 and 480 of 2016
https://www.mhc.tn.gov.in/judis
40/46
AS Nos.479 and 480 of 2016
https://www.mhc.tn.gov.in/judis
41/46
AS Nos.479 and 480 of 2016
27.1. The plaintiff in both the suits allowed the said orders to
become final. The defendants challenged the order in IA No.725 of 2015
which postponed the decision. This Court dismissed the Revision
holding that the Trial Court has only postponed the decision. Therefore,
there would not be any prejudice to the defendants. Unfortunately these
two orders were completely overlooked by the Trial Court when it
decided the suit, it relied on the very same documents to conclude that
Mrs.Marie Louise Rayar was a French National and therefore, the French
Code Civil would apply to her. On the said conclusion the Trial Court
held that the alienations are invalid.
27.2. This error committed by the Trial Court is a fundamental
error which should have been avoided. We come across such situations
more often in the recent past, particularly after the practice of filing proof
affidavits in lieu of chief examination had come into being. Courts,
particularly the Presiding Officers must be alive to the situation and
avoid such errors while recording evidence. Mr.Subbiah, the learned
Senior Counsel appearing for the appellants would also fault the new
procedure that is being adopted in recording evidence through Adhoc
https://www.mhc.tn.gov.in/judis
42/46
AS Nos.479 and 480 of 2016
Courts or Additional Masters. We do not subscribe to his suggestion that
the Court must itself record evidence. The humongous pendency of
cases and the fact that the Courts are over burdened will have to be borne
in mind in devising better methods to tackle the problem of pendency.
Even then, the Adhoc Courts and Additional Masters are manned by
Retired Judicial Officers, who are also aware of the procedure. If the
Presiding Officer, be it the Judge or the Adhoc Judge, is vigilant while
recording the evidence such mishaps can be prevented. We therefore,
conclude that the Trial Court was not right relying upon the photo copies,
in the absence of any reason assigned for non-production of originals as
required under Section 65 of the Indian Evidence Act, to conclude that
Mrs.Marie Louise Rayar was a French National.
Point Nos. 2 and 3 are also answered against the respondents.
Point No.4;
28. This takes us to the next question, as to whether, the exercise
of option by the husband of Mrs.Marie Louise Rayar, Mr. Joseph
Amalarayan Rayar would clothe her with French Nationality. Article V
of the Treaty of Franco Indian Cession itself provides an answer, it very
clearly states that the choice of the husband will not affect the Nationality
https://www.mhc.tn.gov.in/judis
43/46
AS Nos.479 and 480 of 2016
of the spouse. Unless, it is shown that Mrs.Marie Louise Rayar had
independently exercised her option, she cannot be held to be a French
National. Once it is found that Mrs.Marie Louise Rayar is not shown to
have exercised her option, she would automatically become an Indian
citizen in terms of Article IV of the Treaty of Franco Indian Cession, with
effect from 16.08.1962.
28.1. As we had already pointed out the properties subject matter
of both the suits were purchased after 16.08.1962 and hence they would
not be clothed with the character of the property of the communite to
enable application of the French Code Civil, so as to nullify the
alienations made by Mrs.Marie Louise Rayar. We must, at this juncture
mention the feeble effort made by Mr.Prakash Adiapadam to project that
the Sale Deeds were without consideration. The said plea has to be
rejected solely on the ground that there is neither a plea nor evidence to
support such contention.
https://www.mhc.tn.gov.in/judis
44/46
AS Nos.479 and 480 of 2016
29. In the light of the above, the Appeals will stand allowed, both
the suits will stand dismissed. There shall be no order as to costs.
Consequently, the connected miscellaneous petitions are closed.
(R.SUBRAMANIAN, J .) (K.GOVINDARAJAN THILAKAVADI, J.)
02.11.2023
jv
Index : Yes
Internet : Yes
Speaking order
Neutral Citation: Yes
To
The III Additional District Judge,
Puducherry.
https://www.mhc.tn.gov.in/judis
45/46
AS Nos.479 and 480 of 2016
R.SUBRAMANIAN, J.
and K.GOVINDARAJAN THILAKAVADI, J.
jv Pre-delivery judgment in A.S.Nos. 479 and 480 of 2016 and Connected Miscellaneous Petitions 02.11.2023 https://www.mhc.tn.gov.in/judis 46/46