Madras High Court
Kulandai Marie vs Marie Rock Emile Vangamudiar on 7 December, 2023
SA.No.226 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.12.2023
CORAM
THE HON'BLE Mr.JUSTICE C.KUMARAPPAN
S.A.No.226 of 2007
and
M.P.No.2 of 2007, 1 of 2008 and 1 of 2009
1. Kulandai Marie
2. Remo(died)
3. Joseph
4. Louis Pasther Amotorpavma
5. Celine
6. Marie Christine
7. Anthonydos ... Appellants
( Second Appellant died, Appellants 4 to 7 are
brought on record as legal heirs of the deceased
second appellant vide order of Court dated 779
to 781 of 2023 in S.A.No.226 f 2007)
- Vs -
Marie Rock Emile Vangamudiar, son of
Marie Susainathan Vanagamudiar (died)
represented by Lrs.
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1/14
SA.No.226 of 2007
1. Valanthine ( died)
2. Marie Irudayanantham
3. Christian Marie Josphine
4. Zheno
( R1 died, R2 to R4 ( already on record ) are legal
heirs of the deceased R1 vide Court order
dated12.08.2022 made in S.A.No. 226 of 2007)
... Respondents
Second Appeal is filed under Section 100 of the Civil Procedure Code
against the Judgment and decree dated 24.02.2004 in A.S.No.22 of 2002 on
the file of the Court of the Principal District Judge at Pondicherry thereby
confirming the Judgment and Decree dated 30.07.1999 in O.S.No.431 of
1997 on the Court of the Principal Sub Judge at Pondicherry.
For Appellant : Mr.R. Saravanan for Sai krishnan
For Respondents 2 to 4 : Mr.R. Subbiah for G. Sumitra
Senior Counsel
For Respondent -1 : Died ( Steps taken)
JUDGMENT
The instant second appeal has been filed at the instance of the
defendant. The first respondent was the original plaintiff' and the
respondents 2 to 4 are the legal heirs of the plaintiff.
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2. For the sake of convenience, parties will be referred according to
their litigative status before the Trial Court.
3. The brief facts which give rise to the instance second appeal is
as follows:
The suit property originally belongs to one Lourdusamy who is non
other than the brother-in-law of the plaintiff'. The first defendant is the wife
of the said Lourdusamy, and the second and third defendants are the children
of Lourdusamy. According to the plaintiff' the said Lourdusamy by notaire
sale deed transcribed on 05.09.1964 sold an extent of 3 ares and 20
centenaries. The plaintiff further submits that at the time of purchase of the
said extent, on request of the said Lourdusamy he was permitted to put up a
small hut measuring an extent of 15 x 25 feet and was permitted to be reside
there. After the demise of Lourdusamy, his widow the first defendant
continued to live in the small portion, and the plaintiff have leased out the
remaining portions to 3rd parties. It is the submission of the plaintiff' that the
second and third defendants were not at all residing in the suit property. It
is the submission of the plaintiff that after the demise of the Lourdusamy the
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children's attitude were hostile to the plaintiff's interest. Hence, the plaintiff
revoked the licence granted to deceased Mr.Lourdusamy who is the husband
of the first defendant, by notice to all the defendants dated 11.06.1997.
However, the defendant sent a false and frivolous reply containing, untenable
allegations. It was contended by the defendant that the sale deed executed by
Lourdusamy on 05.09.1964 was a sham and nominal document and not
supported by any consideration. It is the submission of the plaintiff that after
the execution of the sale deed dated 05.09.1964 the mutation in respect of
suit property has been effected in favour of the plaintiff, and that he has been
enjoying the property as its rightful owner. Hence, the plaintiff come forward
with the suit for declaration and for recovery of possession.
4. The said suit was resisted by the defendant by contending that his
father Lourdusamy has no right, title to execute the sale deed, and the claim
of the plaintiff' is barred by limitation. It was also contended by the
defendant that the suit was not properly valued. Hence, prayed to dismiss the
suit.
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5. Evidences, Documents and findings of the both the Court below
Before the Trial Court the plaintiff' examined two witnesses as P.W.1
and P.W.2 and on behalf of the defendant, first defendant herself was
examined as D.W.1. On behalf of the plaintiff' 6 documents have been
marked Ex.A1 to Ex.A6. On behalf of the defendant no documents was
marked.
6. The Trial Court after having considered the oral and documentary
evidences has passed a common Judgment on 30.07.1999 thereby decreeing
the suit in O.S.No.431 of 1997 filed by the plaintiff' and dismissed the suit in
O.S.No.107 of 1999 filed by the first and third defendants in O.S.No.431 of
1997 for the relief of injunction. Though there was a common order passed
in two suits, the defendant opted to prefer an appeal only against the
Judgment and decree in O.S.No.431 of 1997, and not challenged their suit in
O.S.No.107 of 1997. The First Appellate Court after having gone into
various aspects and on the basis of Ex.A1/Notaire Sale Deed found that the
title of the property vest with the plaintiff, and has granted the relief of
possession to the plaintiff. Aggrieved with the concurrent finding of the both
the Court below the defendants are before this Court by way of Second
Appeal.
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7. Substantial questions of law
While admitting this second appeal this Court has framed following
substantial questions of law:
(i) Whether it is proper to shift the onus of proving
the case on the defendants even when the plaintiff had
failed to establish his case by producing any acceptable
evidence?
(ii) Whether the production of a copy of an un
registered sale deed alleged to have been notarized would
confer title on the plaintiff without proving of the contents
of the document in an acceptable manner?
(iii) Is it not unjustifiable to expect the defendants
to prove that the sale deed is not valid when the plaintiff'
had not done anything more than the mere production of
the copy of the said sale deed?
(iv) Is it not contrary to law to accept a document in toto
without even going into the question of whether the executor
had the capacity to deal with the property dealt with by him
through the said instrument when the specific case of the
defendants was that the executant had no right to execute the
same as he was not the absolute owner of the property?
(v) Whether a decree for title and possession can be
granted on the basis of the failure of the defendants to prove
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their case and especially when the plaintiff' had miserably
failed to establish his case.
8. Submissions of the either side counsel:
The learned counsel for the defendant/appellant would vehemently
submits that, though the plaintiff' has not submitted the original sale deed,
the reliance of certified copy of the sale deed, by the Trial court is contrary to
law. The learned counsel further submits that, when the burden is upon the
plaintiff to prove his title, shifting the burden to the defendants to prove their
title to the suit property is contrary to law. The learned counsel for the
appellant would also further contend that the Trial Court as well as the First
Appellate Court did not gone into the aspect of the nature of title of the
deceased/Lourdusamy to execute the sale deed, as the suit property is his
ancestral property. Therefore, the learned counsel for the appellant would
contend that the finding recorded by both the Court below are perverse and
contrary to the evidence. Hence, prayed to interfere with the same.
9. Per Contra, the learned Senior counsel appearing on behalf of the
plaintiff would contend that by virtue of execution of Ex.A1/Notaire Sale
Deed the title of the plaintiff in respect of the suit property has been proved,
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and that when there was a concurrent finding by both the Court below that
through the Ex.A1 the plaintiff have established his right, title and ownership
over the same, that too based upon material on record, there is no ground to
interfere with the said finding. It is also the further submission of the learned
Senior Counsel that the defendant has admitted the execution of the notaire
sale deed Ex.A.1, but only contended that it is sham and nominal, whereas
they did not prove as to how the Ex.A1/Notaire sale deed becomes sham and
nominal. Hence, the learned Senior Counsel prayed to dismiss the second
appeal.
10. I have given my anxious consideration to either side submissions.
11. Analysis of the submissions:
The learned counsel for the appellant would contend that the
defendants father Lourdusamy has no right to execute the sale deed in
respect of his ancestral property. But the learned counsel is not in a position
as to how the suit property becomes the ancestral property of late
Lourdusamy, and on what basis the Lourdusamy has no title over the suit
property, has not been explained by the defendant.
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12. However, the learned Senior Counsel appearing on behalf of the
plaintiff by relying upon the following Judgments of this Court reported in
2018(1) CTC 481 in the case of Sandana Rene Lucien Josph Vs Sandana
Vincent Maria Anthony, 2023 (5) Law weekly 30 in the case of Batmavady
(died) and others Vs Sarala and others would contend that in Puducherry
U.T, in respect of inheritance, the application of French Code is not
applicable to the Indian Citizen and immovable property situated in India,
after the Pondicherry extension of laws Act 1963, by and in which, the Hindu
Succession Act was extended to Pondichery with effect from 01.10.1963,
and by virtue of Section 5 of the Indian Succession Act, 1925 . Therefore,
this Court has no hesitation to hold that French code is not applicable to the
suit property which is situated in Pondicherry Region. Therefore finding
rendered by the both the Court below holding that the Lourdsamy has got
title to execute the sale deed over the suit property is perfectly in order.
13. Now the next limb of the argument advanced by the learned
counsel for the defendant is that, the original of Ex.A1/Notaire Sale Deed has
not been submitted before the Court and that the Ex.A1/Notaire Sale Deed is
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an unregistered sale deed. Therefore, contended that the same is not binding
upon them. However, the First Appellate Court in clear terms has held that
under the erstwhile system prevailing in Pondicherry the execution of the
Notaire Sale Deed is valid.
14. In this regard the learned senior counsel would invite the attention
of this Court in-respect of Article 1582 of French Civil Code. The relevant
portion is extracted hereunder:
A sale is an agreement by which the one person
binds himself to deliver a thing, and the other party
agrees to pay for it. A sale may be carried out by a
document drawn yo by a notary, or by one merely
signed by the parties. ( C.1102 and following;
1317,1322; com.109).
15. As per the above article of the French Civil Code, in Pondicherry
region the Sale may be carried out by a document drawn up by a notary. Here
Admittedly Ex.A1/Notaire Sale Deed has been drawn up by a notary.
16. At this juncture the learned senior counsel for the appellant has
also invited the attention of this Court in respect of the Pondicherry
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Extension Act 1968, which came into force on 24.05.1968, and only through
the above Act the Transfer of property Act, 1882 was extended to the
Pondicherry region. Further the learned Senior Counsel would also submit
that the Indian Registration Act was extended to Pondicherry Region on
26.01.1970 by way of The Registration ( Puducherry) Amendment Act,
1970. Therefore, until the extension of these two Acts, The Transfer of
Property Act, 1882 and the Indian Registration Act has no application to
Pondicherry region. Here, the sale deed is of the year 1964 during which
period, the law prevailed in respect of the execution of sale deed is on the
basis of the Article 1582 of the French Civil Code.
17. Therefore, this Court is of the firm view that the submissions made
by the learned counsel for the appellant in respect of the validity of
Ex.A1/Notaire Sale Deed on the ground of non-registration cannot be
countenanced.
18. It is pertinent to mention here that the First Appellate Court after
gone into various aspects have ultimately held that by virtue of
Ex.A1/Notaire Sale Deed, the title of the plaintiff could be established. It
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was the further finding of the First Appellate Court, that the defendant has
rightly accepted the execution of the sale deed by Lourdusamy, but it was
contended by them, in Ex.A5/reply notice issued on 22.06.1997 that the said
sale deed is a sham and nominal document and not supported by any
consideration. But absolutely there is proof or any evidence available before
the Court to support their contention.
19. The First Appellate Court has further held that through Ex.A3, the
plaintiff has mortgaged the suit property, and it was also found that the patta
and other revenue records are stands in the name of the plaintiff. Therefore,
taking into all these aspects cumulatively, both the Court below have arrived
at a right conclusion that the plaintiff is entitled to have a declaration in
respect of the suit property. On a close reading of the defence, the defendant
has not established as to how they have been in possession of the suit
property. Therefore, this Court is of the firm view that, the defendants
possession in the suit property should be only under permissive possession
held by late Lourdusamy. Hence, when the plaintiff is the owner of the
property, he is entitled to recover such possession from the permissive
occupant. Thus, this Court is of the view that the finding of fact recorded by
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both the Court below is based on evidence and law. As a concomitant, the
substantial questions of law are answered against the appellant.
20. In the result, this second appeal is dismissed by confirming the
Judgment and decree passed by the the Principal District Judge at
Pondicherry on 24.02.2004 in A.S.No.22 of 2002. No order as to costs.
Consequently the connected miscellaneous petition are closed.
07.12.2023
smn
Index: yes / no
Neutral citation
Speaking / Non speaking order
To
1.The Principal District Court
Pondicherry
2.The Principal Sub Court
Pondicherry
C.KUMARAPPAN, J
smn
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07.12.2023
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