Madras High Court
V.Ravichandran vs V.Gandhimathi on 23 October, 2024
2024:MHC:3772
S.A.NO.225 OF 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.10.2024
CORAM:
THE HON'BLE MR.JUSTICE R.SAKTHIVEL
S.A.NO.225 OF 2020
AND
CMP NO.4690 OF 2020
V.Ravichandran ... Appellant / Appellant /
Defendant
Versus
1.V.Gandhimathi
2.V.Banumathi ... Respondents / Respondents /
Plaintiffs
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure, 1908 praying to set aside the Judgment and Decree dated
October 3, 2019 made in A.S.No.55 of 2018 on the file of the Additional
Sub Court, Puducherry confirming the Judgment and Decree dated April 3,
2017 made in O.S.No.1181 of 2005 on the file of the I Additional District
Munsif Court, Puducherry.
For Appellant : Mr.D.Gopal
For Respondents : Ms.V.Kamala Kumar
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JUDGMENT
This Second Appeal is directed against the Judgment and
Decree dated October 3, 2019 passed in A.S.No.55 of 2018 by the 'learned
Principal Sub Judge [Additional Sub Judge (FAC)], Puducherry'
[henceforth 'First Appellate Court' for brevity and convenience] confirming
the Judgment and Decree dated April 3, 2017 passed in O.S.No.1181 of
2005 by the 'learned I Additional District Munsif at Puducherry'
[henceforth 'Trial Court' for brevity and convenience].
2.For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFFS' CASE:
3.The plaintiffs and the defendant are daughters and son
respectively of the couple, Varadharasu Pillai and Saraswathi Ammal. The
said Varadharasu Pillai executed a registered Will on June 19, 1989
making devise of his properties. In the said Will, an extent of 2 kawnies
and 84 kuzhies morefully described in the schedule thereunder was set
apart for the benefit of the plaintiffs. Thereafter, the said Varadharasu
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Pillai revoked the above said Registered Will, by another Registered Will
dated November 8, 1989 wherein the Suit Property has altogether been
omitted. Varadharasu Pillai passed away on January 2, 1990 and his wife
Saraswathi Ammal passed away on January 14, 1995. After their demise,
the plaintiffs and the defendant are entitled to 1/3 share each in the Suit
Property. Accordingly, the plaintiffs seeking 2/3 share in the Suit Property,
filed the Suit for partition.
DEFENDANT'S CASE
4.The defendant in the Written Statement denied the
allegations made by the plaintiffs that the defendant has no ownership or
title over the disputed property. He asserted that the property originally
belonged to their father, Varadharasu Pillai, who executed a Registered
Will on June 19, 1989 bequeathing the Suit Property to the defendant,
which was later revoked by executing a second Will on November 8, 1989.
According to the second Will, properties were divided into two Schedules
viz., 'A' and 'B'. Upon Saraswathi Ammal's death, the plaintiffs would
inherit the 'A' Schedule properties equally and the defendant would receive
the 'B' Schedule properties. The plaintiffs had already received financial
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assistance and Varadharasu Pillai intended for the defendant to sell the Suit
property to settle any debts. After Varadharasu Pillai's death on January 2,
1990 the defendant became the absolute owner as per the family
arrangement between the parties. The plaintiffs, having accepted their
share including their mother's jewels, have now filed this Suit unjustly.
Further, after marriage, the plaintiffs left their parents and did not support
them. However, the plaintiffs received money and jewellery from the
defendant during festivals and enjoyed the benefits of the Suit Property
without contributing to its maintenance. The defendant took care of his
mother and managed all expenses related to her medical needs and funeral.
The defendant spent a significant amount of money over five lakhs on the
property and family expenses. The defendant is the rightful owner of the
property on the basis of family arrangements and Wills executed by their
father and that the plaintiffs have no legal basis to claim possession of the
Suit Property. Accordingly, he prayed to dismiss the suit.
TRIAL COURT:
5.At trial, the first plaintiff was examined as P.W.1 and Ex-
A.1 to Ex-A.5 were marked on the side of the plaintiffs. The defendant was
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examined as D.W.1 and Ex-B.1 to Ex-B.12 were marked on the side of the
defendant.
6.The Trial Court after considering the oral and documentary
evidence, found that the Suit property was not covered under Ex-A.2 and
Ex-A.3, both first and second Wills. In other words, the said Varadharasu
Pillai did not execute the Will in respect of the Suit Property. Hence, the
plaintiffs and the defendant are entitled to 1/3 share each in the Suit
Property and accordingly, decreed the Suit and passed a preliminary decree
for partition.
FIRST APPELLATE COURT:
7.Feeling aggrieved, the defendant preferred an appeal in
A.S.No.55 of 2018 before the First Appellate Court. The First Appellate
Court, after hearing both sides and after considering the evidence available
on record, came to the conclusion that the Hindu Succession Act, 1956
would be applicable to all the parties after the demise of Varadharasu
Pillai, and accordingly, the plaintiffs and defendant each are entitled to 1/3
share in the Suit Property. Accordingly, the First Appellate Court
concurred with the findings of the Trial Court and dismissed the Appeal.
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8.Feeling aggrieved with the concurrent findings rendered by
the First Appellate Court as well as the Trial Court, the defendant preferred
this Second Appeal under Section 100 of the Code of Civil Procedure,
1908.
DISCUSSION AND DECISION:
9.This Court has heard the submissions made on either side
and perused the materials available on record.
10.Mr.D.Gopal, the learned Counsel for the
appellant/defendant argues that both, the plaintiffs and the defendant are
residing in Pondicherry and the Suit Property is situated in Pondicherry.
Hence, the old customary Hindu Law would be applicable to both parties.
As per the old customary Hindu Law, the plaintiffs are not entitled to any
share in the Suit Property. The Trial Court and the First appellate Court
miserably failed to consider the said fact and decreed the Suit erroneously.
Accordingly, he prays to allow the Second Appeal.
11.Ms.V.Kamala Kumar, the learned Counsel for the
respondents / plaintiffs contends that though the parties and the Suit
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Property are in Pondicherry, the Hindu Succession Act, 1956 alone would
be applicable to the case on hand. To that effect, learned Counsel relies on
the Judgment of this Court in Gowri Vs. Subbu Mudaliar and Ors.
reported in 2017 (4) CTC 503. In the said case, specific question of law
was framed as to whether Customary Hindu Law, which were vogue in
Pondicherry could still be given statutory recognition de hors the
enactment of Hindu Succession Act, 1956? And the same was answered as
follows:
“34.This Court having regard to the fact that the
judgment of the Division Bench of this Court relied upon in
Krishnamurthy v. Sitaram Gounder, 2002 (3) Law Weekly 669
wherein the parties themselves conceded thereby Customary
Hindu Law not governed by the Mitakshara Hindu Law as
decided by both Division Benches. Similarly the judgment of the
another Division Bench reported in Viswanathan v.
Savarimuthurajan, 2004 (3) CTC 81, wherein the Customary
Law was applicable only to the Christian Law governed to the
Christians are customary as stood prior to the Hindu
Succession Act. Both the judgments would not be useful to
decide the question of law as to whether the Pondicherry
(Extension) Laws Act 1963 prevail over the Hindu Succession
Act. Whereas the Judgment of the Division Bench in Pauline
Luca v. Jerome Pascal, AIR 1977 Mad. 270 and
T.S.Sadagopan (Deceased) v. T.N.K.Ramanujam, 1993 (2)
MLJ 481 of this Court and the judgment of the learned single
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Judge in M.Kadirvelu v. G.Santhanalakshmi 2016 (2) MWN
(Civil) 449 : 2016 (4) MLJ 562, appears to be correct law with
regard to the applicability of the Act. Further, the Legislators
also in their wisdom has clearly carved out only exception to
renouncants. If the entire Hindus who are the native of
Pondicherry are governed by the Customary Law as contended
by the learned Senior Counsel, the Legislators would not have
been even extended the Hindu Succession Act to the
Pondicherry.
35.The contention of the learned Senior Counsel that the
Hindus residing in Pondicherry are governed by the Customary
Hindu law cannot be accepted for another simple reason, that
Act 39/2005 Hindu Succession Act was enacted by giving equal
status to the daughters on par with the sons in a coparcenary
system. If the contention of the learned Senior Counsel is
accepted, the very purpose of bringing the Act 39/2005 giving
equal status to the daughters on par with the sons in joint Hindu
family itself would be defeated.
36.Therefore, this Court is of the view that in view of
Section 4 of the Hindu Succession Act, which is overriding
effect of all the customs Hindu Succession Act alone apply to
the Hindus residing in the Pondicherry except Renoncants, who
renounced their Personal status and adopted French Law. . . .”
12.The main question needs to be answered in this Second
Appeal is whether customary Hindu Law is applicable in this case.
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Admittedly, the plaintiffs and the defendants are Hindus who have not
renounced their personal status or adopted French Law. Hence, in view of
the overriding effect of Section 4 of Hindu Succession Act, 1956, the
Hindu Succession Act, 1956 alone would be the applicable law in this
case. Therefore, the contention of the defendant that the plaintiffs are not
entitled to share in the Suit Property does not hold good.
13.The other contention that the plaintiffs' marriages were
performed in a grand and pompous manner requiring funds borrowed as
debts, has not been proved by the defendant. Admittedly, father of the
plaintiffs and the defendant passed away leaving Ex-A.2 and Ex-A.3 –
Wills. Perusal of Ex-A.2 and Ex-A.3 - Wills would show that Ex-A.2, the
first Will was revoked by the subsequent Will Ex-A.3 and that Ex-A.3
have no mention of the Suit Property. In other words, the father did not
execute any Will in respect of the Suit Property, and passed away leaving
behind the Suit Property. Hence, the plaintiffs and the defendant, as legal
heirs under Section 8 of the Hindu Succession Act, 1956, are entitled to
1/3 share each in the Suit Property. The Trial Court as well as the First
Appellate Court concurrently held that Hindu Succession Act, 1956 would
be the applicable law, and that the plaintiffs and the defendant are entitled
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to 1/3 share each in the Suit Property. This Court is of the view that the
aforesaid findings are factual findings recorded based on evidence and
documents and there is no question of law, much less substantial question
of law, in this Second Appeal. Hence, the Second Appeal must fail.
14.In the result, the Second Appeal is dismissed. No costs.
Consequently, connected Civil Miscellaneous Petition is closed.
23.10.2024
Index : Yes
Neutral Citation : Yes
Speaking Order : Yes
TK
To
1.The Additional Sub Court
Puducherry.
2.The I Additional District Munsif
Puducherry.
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R.SAKTHIVEL, J.
TK
S.A.NO.225 OF 2020
23.10.2024
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