Madras High Court
Alliance Francoise vs Egalammalle @ Rakeny Poulain ... on 19 March, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 19.03.2012 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.51 of 1994 Alliance Francoise, rep.by its President, having its office at No.33, Dumas Street, Pondicherry .. Appellant Vs. 1.Egalammalle @ Rakeny Poulain (Deceased) 2.Maria Poulain 3.Francoise Poulain 4.Antoine Poulain 5.Pierre Poulain, 6.Gabriel Poulain .. Respondents RR2 to 6 recorded as Lrs of deceased R1 vide order of Court dt.2.8.2011 made in Memo USSR No.2168/11 dated 20.3.2011 This appeal is focussed by D1 as against the judgment and decree dated 25.10.1993 passed by the Principal Subordinate Judge, Pondicherry, in O.S.No.650 of 1985. For appellant : Mr.T.Murugesan,Sr.counsel for Mr.T.R.Rajaraman For Respondents : Mr.R.Subramanian for R2 to R5 Mr.V.Raghavachari for M/s.B.S.G.Firm for R5 JUDGMENT
This appeal is focussed by the first defendant in the suit, as against the judgement and decree dated 25.10.1993 passed by the Principal Subordinate Judge, Pondicherry, in O.S.No.650 of 1985.
2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of these appeals would run thus:
The respondents 1 to 5 herein, as plaintiffs, filed the suit on various grounds, the gist and kernal of them would run thus:
(a) The property described in the plaint originally belonged to one Poulain Charele Magne Malie Maurice; he got married one Olive Claudine Laura Marie on 21.11.1900; during the wedlock, a son, namely, Poulain Andra Marie Ame'de was born to them, for nothing but to die in unmarried state, at the young age itself. Thereafter, the wife, namely, Olive Claudine Laura Marie got divorce as against her husband. Whereupon, the suit property described in the schedule of the plaint was allotted to the divorcee wife, namely, Olive Claudine Laura Marie, for her residence only and the 'Communaute' did not get disrupted or dissolved.
(b) After such divorce, which emerged between the couple, the divorcee husband Poulain Charlemagne Marie Maurice married one other lady, by name, Jauffort Marie Hosephine Cabriella on 22.6.1918 and gave birth to a son by name Poulain Marie Joseph Reymond, who married one Egalammallee @ Rakeny Poulain (the first plaintiff) on 4.9.1964 and they gave birth to plaintiffs 2 to 5 and D2.
(c) Subsequently the divorcee wife, namely, Olive Claudine Laura Marie executed a Will dated 31.3.1939 in favour of her relative Roger Belloq setting out the following clauses:
"(i) that she does not want after her life time immovable and movable be sold.
(ii) that her relative Roger Belloq would look after any suit or in his absence any other member in the family will look after the same.
(iii) That the same Belloq will enjoy the wealth as if it is his own and will take only the mesne profits without necessary expenses.
(iv) that the said Belloq will build her grance and acquire other wills after the payment of the debts.
(v) that her jewels will be partitioned in the family.
(d) The said Roger Belloque instituted a case in the erstwhile Court of First Instance, Pondicherry, for getting himself declared as the sole legatee of the testatrix, the said Ollive Claudine Laura Marie. However, the said Court declared that he could only have usufructuary right and manage the property and that ultimately the testator's natural legal heirs would have the absolute right. Appeal was filed by him, which confirmed the judgement of the trial Court.
(e) Thereafter, the said Roger Belloq and his wife executed a gift deed in favour of D1, which is void. The divorcee wife Ollive Claudine Laura Marie died on 20.10.1941 and the said Roger Belloq, who had only usufructuary right over the suit property died on 12.3.1984.
(f) On the death of both divorcee wife, namely, Ollive Claudine Laura Marie and the usufructuary right holder Roger Belloq, the suit property reverted back to the plaintiffs, who happened to be the legal heirs of the divorcee husband. Hence, after issuance of notice and getting no positive response, the suit was filed with the following prayer.
"(i) for a declaration that the plaintiffs and the 2nd defendant are the only legal heirs of late Olive Claudin who dies at Pondicherry on 31.3.1939 and Poulain Marie Joseph Raymond and are entitled to succeed to her esteate
(ii) for a declaration that the gift deed dated 29/9/1983 executed by late Roger Bellocq in favour of the 1st defendant is ab-initio null and void and does not confer any title to the first defendant.
(iii) that the plaintiffs and the 2nd defendant are the absolute owners of the property more particularly described in the schedule hereunder;
(iv) for possession of the suit property.
(v) for a permanent injunction restraining the 1st defendant from putting up any permanent constructions or in any manner altering the nature of the building or committing acts of waste or any accretion to the suit property.
(vi) for mesne profits from 13.12.1984 as may be determined by this Hon'ble Court under the provisions of order XX Rule 12 C.P.C.
(vii) for the cost of the suit."
(extracted as such)
(g) Inveighing and challenging the averments/allegations in the plaint D1 filed the written statement, the gist and kernal of it would run thus:
(i) The Court proceedings relating to the divorce emerged between the deceased Olive Claudine Laura Marie and Poulain Charele Magne Malie Maurice would unambiguously and unequivocally highlight and spotlight the fact that the property was allotted to the divorcee wife during those proceedings absolutely granting full ownership and not with a limited interest.
(ii) As per the Notaire partition deed dated 14.6.1919, the suit property was allotted to the share of divorcee wife, namely, Ollive Claudine Laura Marie absolutely in full ownership and it was not allotted to her for her residence only, as wrongly alleged in the plaint. The contention in the plaint that the Communaute that existed between the couple was not disrupted or dissolved is not true. The said Roger Belloq and his wife Yvette Spielmann, who happened to be the legal heir of the said deceased divorcee wife Ollive Claudine Laura Marie, validly executed the donation deed dated 29.9.1983 in respect of the suit property in favour of D1, which cannot be declared as void. The plaintiffs are not the legal heirs of the deceased divorcee wife Ollive Claudine Laura Marie.
(iii) The divorcee wife was given absolute right over the suit property. In such a case, the question of the suit property reverting back to the legal heirs of the divorcee husband would not arise.
(iv) The fact also remains that for the said divorcee couple there was no surviving child also.
Accordingly, the D1 prayed for the dismissal of the suit.
(h) Whereupon, the trial Court framed the issues.
(i) During trial, on the plaintiffs' side, the first plaintiff examined herself as P.W.1 and Exs.A1 to A14 were marked. On the defendants' side, the President of 1st defendant examined himself as D.W.1 and Exs.B1 and B2 were marked.
(j) Ultimately, the trial Court decreed the suit.
(k) Being aggrieved by and dissatisfied with the said judgement and decree of the trial Court, this appeal was filed by D1 on various grounds.
4. Placing reliance on the grounds of appeal, the learned Senior counsel for the appellant/D1 would advance his arguments, the pith and marrow of them would run thus:
The plaintiffs filed the plaint on the wrong conception as though there was no disruption of the 'communaute' between the divorcee wife and the divorcee husband. The Court proceedings, which emerged subsequent to the divorce decree would unambiguously and unequivocally highlight and spotlight the fact that the suit property was allotted to the divorcee wife, namely, Olive Claudine Laura Marie in absolute ownership and it was not given for her enjoyment during her life time only. The trial Court assumed and presumed for gospel truth the case of the plaintiffs and without any basis, simply held as though consequent upon the death of the divorcee wife, the suit property reverted back to the legal heirs of the divorcee husband.
Accordingly, the learned Senior counsel for the appellant/D1 would pray for setting aside the judgement and decree of the trial Court and for dismissing the original suit.
5. In a bid to torpedo and to make mincemeat of the arguements as put forth and set forth on the side of the appellant/D1, Mr.R.Subramanian-the learned counsel for R1 to R5/plaintiffs and Mr.V.Raghavachari-the learned counsel for R6/D2 would put forth and set forth their arguements, the epitome and the long and short of them would run thus:
The trial Court appropriately and appositely and that too, legally considered the real purport of the French Law and the essence of the proceedings which emerged between Ollive Claudine Laura Marie and Poulain Charlemagne Marie Maurice in the French Courts and decided that consequent upon the death of divorcee wife, the property given to her for her residence, so to say, the usufructuary right over it, got extinguished and the suit property reverted back to the legal heirs of the deceased husband, namely, the plaintiffs, warranting no interference in appeal.
6. The points for consideration are as under:
(i) Whether on the divorce, which emerged between the wife-Olive Claudine Laura Marie and the husband-Poulain Charele Magne Malie Mauriuce, the suit property was allotted to the divorcee wife only for her to enjoy it during her life time, exercising usufructuary right over it and not absolute ownership. If so, whether on her death, it could be taken, as per French Law, that the suit property stood reverted back to the plaintiffs, who are legal heirs of the deceased divorcee husband?
(ii) Whether the trial Court was justified in rendering a finding in favour of the plaintiffs without referring to any specific document or any evidence and that too in the absence of placing reliance on any French provisions of law?
(iii) Whether there is any perversity or illegality in the judgement and decree of the trial Court?
7. All these points are taken together for discussion, as they are interwoven and interlinked, interconnected and entwined with one another.
(i) Whether on the divorce, which emerged between the wife-Olive Claudine Laura Marie and the husband-Poulain Charele Magne Malie Maurice, the suit property was allotted to the divorcee wife only for her to enjoy it during her life time, exercising usufructuray right over it and not absolute ownership. If so, whether on her death, it could be taken, as per French Law, that the suit property stood reverted back to the plaintiffs, who are legal heirs of the deceased divorcee husband?
8. At the outset itself I would like to fumigate my mind with the relevant provisions of the French Law, as found embodied in the French Civil Code. I would like to extract hereunder Article 767 of the French Civil Code:
"Article 767 OF THE RIGHTS OF THE SURVIVING HUSBAND OR WIFE AND OF THOSE OF THE STATE (Law, 9th March, 1891, Art.I) When the deceased leaves neither relatives within the heritable degrees nor illegitimate children, then the property belongin to the succession belongs to the deceased's wife or husband, if there is a wife or husband surviving, provided that such wife or husband has not been divorced, or there is no separation order which has becomes res judicata. The surviving wife or husband and. Who is not divorced, and against whom a separation order has not been issued which has become res judicata, is, when not entitled to the whole property, entitled to a usufruct over the deceased's property as next mentioned viz., over a quarter of the deceased's property is the deceased has left one or more children issue of the marriage; over a portion of the deceased's property equal to that of the legitimate child who takes least, but never exceeding a quarter if the deceased has children by a former marriage; over a half in every other case, whatever may be the number or relationship of the heirs.
There shall be added (for the purpose of calculating the amount of such shares) to property of the deceased as it exists at the time of his decease any property that he may have given his heirs, either intervivos or by will, if such gifts were made without a clause releasing such donees or legatees from bringing the same into hotchpot. The surviving wife or husband can, however, only exercise such right of usufruct over property not alienated by the deceased, either by act inter vivos or by will, provided always such alienation was not in violation of the law which limits the right of disposing of property or the law as to compelling the return of property. These rights cannot be put in force when the wife or husband has received presents from the deceased (even if they have been made by way of preciput and hors part which altogether are equal in amount to the rights given by this Article.
If the sum total of such presents is less than the rights given by the present law, then the husband or wife can claim any balance required to make up the usufruct to the amount hereby given. Until the final partition has taken place the heirs can, if they give sufficient security, require the usufruct of the surviving wife or husband to be converted into an annuity of an equivalent amount. If the parties cannot agree on the amount, then the Court shall have power to effect such conversion. Should the wife or husband re-marry while there are descendants of the deceased living, the usufruct ceases." (emphasis supplied)
9. A mere poring over and perusal of the said Article would unambiguously and unequivocally indicate and exemplify that if a divorcee wife dies, leaving behind her property, it would not go to the legal heirs of her deceased divorcee husband. When such is the categorical legal position, as found exemplified in Article 767, I could see no rhyme or reason in the judgement and decree of the trial Court in holding that on the death of divorcee wife, the suit property got reverted back to the legal heirs of the deceased divorcee husband.
10. A mere running of the eye over the judgement of the lower Court, to say the least, would display and convey that it was far from satisfactory. At this juncture, I hark back to the settled legal position under the French Law, as applicable to the french Nationals residing in the Union Territory of Pondicherry, even after de jure merger with Indian union with effect from 16.8.1962.
11. A cumulative reading of the following:
Defacto agreement Dated 21st October 1954 Agreement between the Government of India and the Government of France for the settlement of the question of the future of the French Establishments in India signed on the 21st October 1954.
Treaty of Cession of The French Establishments of Pondicherry, Karaikal, Mahe and Yanam concluded on 21st October 1954 signed on 28th May 1956 A.D. The Pondicherry (Administration) Act, 1962 (Act 49 of 1962) Agreed Proces Verbal emerged on 16th March 1963 between the Government of India and the Government of the French Republic.
(The aforesaid legal documents are found printed in the Puducherry Code Volume-I (Second Edition-2010)) along with French Civil Code would unambiguously and unequivocally display and demonstrate that the French Nationals, who are in Puducherry are governed by the Provisions of the French Civil Code.
12. Title-V of French Civil Code Of a marriage contract and of the respective rights of husband and wife; and Chapter-XII-of the French Law Book namely Amos and Walton's Introduction to French Law- [3rd Edition] relating to Matrimonial R'egimes would also enlighten the types of matrimonial r'egimes, of which mainly the two are 'Legal R'egime' and 'Contractual R'egime'.
13. Unarguably and unassailably, here the divorcee husband and the divorcee wife happened to be the French Nationals and their descendants also happened to be the French Nationals. Hence, there could be no doubt about the application of the French Law to them.
14. Generally there are two r'egimes contemplated under the French Law relating to marriage. One is 'Contractual R'egime' and another is 'the Legal R'egime'. Here it is nobody's case that there was a contractual r'egime, which emerged at the time of marriage between Poulain Charlemagne Marie Maurice and Ollive Claudine Laura Marie. In the case of contractual r'egime, at the time of marriage, a contract would emerge, in that, the consequences that would result at the time of divorce would also be found spelt out therein, along with the method and manner of dividing the properties between them. But that is not the case here. Indubitably and indisputably, here only 'Legal R'egime was applicable. The aforesaid observations regarding regimes are only incidental in deciding this case. A thumbnail sketch of the germane facts are that the French Court granted divorce, as against which appeal was preferred for nothing but to be dismissed by the appellate Court confirming the judgement of the lower Court. Whereupon proceedings were initiated for partitioning the property concerned and as per that, the suit property was allotted to the share of the divorcee wife in full ownership. In such a case, in the wake of Article 767 of French Civil Code, it is quite obvious and axiomatic that the said property allotted to the wife would not revert back to the legal heirs of the deceased divorcee husband.
15. By way of detailing and delineating the facts further, I would like to refer to the exhibits marked in this case.
(i) Ex.A1 is the original notarial sale deed dated 5.7.1918, in favour of Mr.Poulain Charlemagne Marie Maurice relating to the suit property.
(ii) Ex.A2- the certified copy of the signification and judgement of the Court of Appeal at Pondicherry, dated 19.5.1917 would exemplify the Court proceedings relating to the divorce, which emerged between the divorcee wife and husband. In fact, that would demonstrate and exemplify that the wife obtained divorce as against the husband in view of the husband's cruelty towards her.
(iii) Ex.A3- is the certified copy of the Expertise Supplementaire (supplementary judgement) dated 9.8.1918 relating to the divorce proceedings.
(iv) Ex.B1 is the certified copy of the notarie partition deed dated 16.9.1918, which emerged between the divorcee husband and the divorcee wife, under which, the suit property was allotted to the divorcee wife in full ownership. An excerpt from it would run thus:
"On Monday, the sixteenth September of the year one thousand nine hundred and eighteen at fifteen hours . . . . . .
. . . . .
. . . . .
Mrs.Claudine Laura Marie Ollive assisted by Mr.Gnanou Diagou her counsel has stated that for the reason of a particular character of desire expressed by Mr.Charlemagne Maurice Poulain, she accepted to respect the desire in question thus leaving to Mr.Charlemagne Marie Maurice Poulain in full ownership the house bearing No.37 of Capucins street and taking on her part, in full ownership, the house bearing No.38 of Bailli-de Suffren.
In respect of the accounts are rather the accounts maintained by her Mrs.Claudine Laura Marie Ollive has stated them to be sincere and real which may give proof of every thing, adding thath in order to speed up the proceedings of the current liquidation she agreed not to insist on all the above missing advanced by her.
After having in the consent of the parties, we have recorded to them respectively their declarations, statement, proposal and acceptance.
Consequent on the above said agreement we have allotted: 1) To Mr.Charlemagne Marie Maurice Poulain, the incommutable ownership of the house situated at No.37, Capucins Street, Pondicherry, bounded at the north by the House of Mrs.Henri Sagesse, at the west by the house of Messrs: Paul Le Faucheur Francine Aroquianadin and Simon at the south by the house occupied by the Hallivell as tenant and at the east by the Capucins Street and 2) To Mrs.Claudine Laura Marie Ollive, the incommutable ownership of the house situated at No.38, Bailly de Suffren Street, Pondicherry bounded at the north by the property of Mrs.Widow Cou.Latchoumanassamychetty, occupied for Miss.Marie Prudhomme, at the West . . . . . .
We state that the parties shall take possession of the immovable respectively fallen for the share of each of them and that we hereby deliver to them the property in the condition where it is found at present as well as its dependencies, the whole, what it comprises without any exception nor reserve in order to enjoy it in full ownership. (emphasis supplied)
16. A mere perusal of the aforesaid excerpts would leave no doubt in the mind of the Court that the suit property was allotted in full ownership to the divorcee wife and in such a case, the question of the suit property reverting back, in violation of Article 767 of the French Civil Code, even by phantasmagorical thoughts, would not arise at all. This crucial fact was not taken note of by the trial Court.
17. Incidentally I would like to refer to the importance that could be attached to Notaire documents, as per The French Civil Code, translated into English, with Notes Explanatory and Historical and comparative References to English Law, By B.Blackwood Wright, Trinity College.
Article 1317 of the French Code Civil and the notes thereunder would run thus:
"(d) "Recu" (drawn); to say that a deed is "recu" means that the notary was present when the parties expressed their wishes. The document must be written by the notary, or dictated by him, or else drawn up in his presence. The vise by signature proves the notarial drawing up. (Laurent, Vol.XIX.102).
(e) "Acte" in the French, here translated "instrument". Laurent says that the writing intended by the parties to it to serve as evidence is called by the Code indifferently an "acte" or a "titre", and that writings not drawn up and intended to be evidence are described by it simply as "ecritures" (Writings). "Titre" is also used to mean a juridical factan act of law eg., the agreement which the instrument is intended to prove. (See the expression "a titre gratuit" in Art.893). It is also the name given to "donations". Thus in Art.2265 the "juste titre" is an "act in law" which would have transferred the property if the person who transferred the property had been owner, and the word is also so used in Art.2267. From the above it will be seen that these expressions are both used interchangeably, and that neither of them is used in the same sense throughout. (See Laurent, Vol.XIX.97).
Notaries have a general authority to draw up all documents of record, except special documents, which have to be drawn up by special officers, as acts of civil status-- records of births, marriages and deaths. 'Juges de paix' draw up instruments as to adoption (Art.353), voluntary guardianship (Art.363), emancipation (Art.477). Notaries alone can draw up instruments of donation marriage contracts and mortgages. Bailiffs of Courts certificates of service of writs and other Court notices."
18. Axiomatically and obviously, a fortiori importance could be attached to such Notaire documents. Therefore, it is clear that Ex.B1 is beyond doubt and challenge.
19. For completion sake, I would like to refer to the other documents which are marked before the trial Court.
20. The beneficiary under the said Will- dated 31.3.1939 executed by the divorcee wife, in fact, approached the Court for declaring him as the absolute owner of the suit property, as universal legatee, which was negatived by the French Court. Exs.A4 and A5 dated 16.12.1949 and 20.2.1951 are the relevant judgements of the French Court in that aspect.
21. Not to put too fine a point on it, it would not lie in the mouth of the plaintiffs to argue anything capitalizing in their favour such rejection of the claim of Roger Belloq-the usufructuary under the Will, by the French Court. In fact, he wanted to derive more benefit than what he was entitled to, but he met with his waterloo.
22. Ex.A9 is the donation deed dated 29.9.1983 executed by the said Roger Belloq and his wife, namely, Yvette Spielmann, who happened to be the niece and the legal heir of divorcee wife, namely, Olive Claudine Laura Marie, and they both executed the donation deed in favour of D1, vide, Notarial Deed-Doc.No.2879/83, donating the suit property, over which, the plaintiffs are not concerned.
23. A bare perusal of Ex.A9-the certified copy of the donation deed, dated 29.9.1983, would pellucidly and palpably, unambiguously and unequivocally highlight the fact that the donation deed was executed by the following two persons:
(i) Mr.Roger Belloq;
(ii) Mrs.Yvette Spielmann in favour of D1. Among the two donors, the first donor, namely, Roger Belloq is found clearly described as usufructuary right holder of the suit property concerned, by virtue of the said 'Will' dated 31.3.1939 executed by Ollive Claudine Laura Marie; and the second donor is found described as the one executing the donation on her behalf as well as in her capacity of manageress of her co-heirs Bernard Spielman Simonne Albericoi Josette Blocq Suzette Legrix Pierre Alberiece Andre Robert Mercelle Doumart and Paul Faustin, the ownership over the suit property in favour of D1. Since the plaintiffs are held to be having no legal right over the suit property, they are having no right to challenge Ex.A9 at all.
24. Hardly need I observe that in this factual matrix, the other details are not necessary, because, the analysis would exemplify and demonstrate that the plaintiffs had no locus standi to file the suit, which is misconceived one. Scarcely adverting to the crucial document, namely, Ex.B1, the suit was filed and the trial Court failed to attach importance to such a document, warranting interference in the appeal.
25. Accordingly, the aforesaid points are decided as under:
Point No.(i) is decided to the effect that on the divorce, which emerged between the wife-Olive Claudine Laura Marie and the husband-Poulain Charele Magne Malie Mauriuce, the suit property was allotted to the divorcee wife in full ownership and that the suit property did not revert back to the plaintiffs as the legal heirs of the deceased divorcee husband- Poulain Charele Magne Malie Mauriuce.
Point No.(ii) is decided to the effect that the trial Court was not justified in rendering a finding in favour of the plaintiffs without referring to any specific document or any evidence and the French provisions of law.
Point No.(iii) is decided to the effect that there is perversity or illegality in the judgement and decree of the trial Court.
26. In the result, the judgement and decree of the trial Court are set aside and the original suit is dismissed. The appeal stands allowed. However, in the facts and circumstances of the case, there is no order as to costs.
msk To The Additional District Judge, Puducherry at Karikal