1. This Second Appeal is filed against the Judgment and decree of the learned Principal District Judge, Puducherry in A.S.No.15 of 2012, reversing the Judgment of the learned Additional Sub Judge, Puducherry in O.S.No.28 of 2006.

2. The appellant as plaintiff filed a suit in O.S.No.28 of 2006 seeking a relief of declaration that the sale deed, dated 15.12.1992 alleged to have been executed by the deceased Kichenane @ Krishnasamy in favour of the first defendant Rajeswari, is null and void; partition of the suit property into two shares and allot half share to him and for costs. The appellant / plaintiff laid a suit stating that the suit property is an ancestral property of the appellant and the 2nd respondent who is the brother of the appellant. The 1st respondent is the wife of the 2nd respondent. The house in the suit property was constructed out of earning of the appellant and his parents. The three storeyed building in the suit property was constructed in the year 1990. He was born in the suit property in 1969 and his parents died in the suit property in 1956 and 1996. The appellant and the 2nd respondent were living in the suit property for more than 36 years. The appellant marriage was celebrated in the suit property on 30.03.1998 and his two children viz., Krishnan and Srinath were born in the suit property in the year 1998 and 2002 respectively. Due to force and threat exercised by the 2nd respondent, the appellant’s father Kichenane @ Krishnasamy executed a sale deed in respect of the suit property in favour of the 1st respondent on 15.12.1992. There is no consideration for this sale. The sale deed was obtained for deceiving other legal heirs of Kichenane @ Krishnasamy. The appellant’s father Kichenane @ Krishnasamy has no right to execute the sale deed in respect of the suit property since it is an ancestral joint family property. The appellant was earning a sum of Rs. 5,000/- per month at the time of construction of the house in the suit property and he contributed money for the construction work along with his father and mother. The ground floor portion is utilized by the respondents 1 and 2 with their children. The first and second floors were leased out to third parties for Rs. 2,000/- per month. From the year 1995 to till date, the rents have been collected by the respondents 1 and 2. The appellant is entitled for half share in the suit property and lease amount. He demanded partition of the suit property and allotment of his share. In this regard, Panchayat was also held on 28.10.2005, wherein it was decided to allot half share each to the appellant and the 2nd respondent. However, the respondents are not willing to act in accordance with the decision taken in the Panchayat. Therefore, the suit has been filed for the aforesaid reliefs.

3. The respondents denied the plea that the suit property is an ancestral property. It is the claim of the respondents that the suit property is not properly valued. The appellant filed the suit, challenging the sale deed executed by Kichenane @ Krishnasamy who died on 23.11.1995, in favour of the 1st respondent on 15.11.1992. Therefore, the appellant should have filed a suit for partition within a period of three years either from 15.11.1992 or from 23.11.1995. However, the suit has been filed only in the year 2005. Therefore, the suit is barred by limitation. It is denied that the building in the suit property was constructed out of the earnings of the appellant and his parents. When the 1st respondent purchased the suit property on 15.12.1992, there was only a thatched hut in the suit property. Then the 1st respondent obtained an approval from the Pondicherry Planning Authority and put up a three storeyed building utilizing her own fund and with the help of her husband, the 2nd respondent. These aspects were suppressed by the appellant and false claims were made in respect of the suit property.

4. Since the 1st respondent is the absolute owner of the suit property, it is not correct to state that the appellant was residing in the suit property with his parents and the 2nd respondent for more than 36 years and his marriage was celebrated there and his children were born in the suit property. The appellant has no right whatsoever in the suit property under the alleged claim of partition. The alleged Panchayat is also denied and it is invented for the purpose of the case. The suit property is a self acquired property of Kichenane @ Krishnasamy and apart from the appellant and the 2nd respondent, there are other legal heirs of Kichenane @ Krishnasamy and they are alive. The other properties owned by Kichenane @ Krishnasamy, were sold by him to third parties. Those transactions were not challenged by the appellant. The appellant has suppressed the fact that the 2nd respondent and his sisters gave no objection to obtain a decree in a suit in O.S.No.273 of 2002 on the file of the I Additional District Judge for the purpose of transferring the house No.42 at Subramaniya siva Nagar alloted to the deceased father in the name of the appellant. By suppressing the real facts, the appellant has filed a suit which deserves to be dismissed.

5. The trial Court framed the following issues for trial:

1. Whether the suit property is the ancestral property of the plaintiff and the second defendant?

2. Whether the sale deed, dated 15.11.1992 is valid and executed for a valid consideration?

3. Whether the suit is barred by limitation?

4. Whether the plaintiff is entitled to get the decree as prayed for?

5. To what relief if any the plaintiff is entitled to?

6. During the course of trial, P.W.I and P.W.2 were examined and Exs.Al to A14 were marked on the side of the plaintiff. On the side of the defendants, DW1 was examined and Exs.Dl to D14 were marked.

7. On considering the oral and documentary evidence, the trial Court found that the suit property is an ancestral property and that the plaintiffs father Kichenane @ Krishnasamy is not the owner of the suit property and that he cannot sell the suit property to the 1st defendant/1st respondent. On such conclusion, the trial Court decreed the suit in respect of the prayer for declaration, declaring the sale deed, dated 15.12.1992 as null and void. In so far as the prayer for partition is concerned, the suit was dismissed for the reason that the appellant has not pressed the same and granted liberty to file a fresh partition suit. Aggrieved over the same, the respondents preferred an appeal before the learned Principal District Judge, Puducherry.

8. In an appeal by the respondents, the learned Principal District Judge, Puducherry, on a re-appreciation of the oral and documentary evidence, had found that the suit is barred by the Limitation and that as per law of succession under Hindu Succession Act, 1956, the property in the hands of a male Hindu domiciled in Pondicherry, is his absolute property of the irrespective of origin or mode of acquisition of such property and in this view of the matter, the learned first appellate Judge held that the suit property is an absolute property of Kichenane @ Krishnasamy and the Sale deed executed by him in favour of the 1st respondent on 15.12.1992 is valid in law. The learned first appellate Judge relied on the Judgement of this Court reported in 2010 (1) MWN (Civil) 1 in Maanvizhi @ Mana Vijie Vs.Venkatachalam @ Vingudasalam and ors. to reach his finding. It is observed in this Judgment as follows:

7. It would be worthwhile to state the legal position relating to the right of a Hindu domiciled in Pondicherry, who claims any right on the basis of devolvement of ancestral property. In the judgment of a Division Bench of this Court in the case of Viswanathan Vs. Savarimouthurayan, reported in 2004 (4) M.L.J. 229, the legal position has been directly set out in paragraph No. 10 which reads as under:

“The learned Judge in the decision in Ramalingam v. Manicka Gounder (1980 (1) M.L.J., 350), has held as follows:

“10. In the event, I think, it would be proper to hold that under the Hindu Law as in vogue in Pondicherry all properties held by a father in a joint family are his absolute properties, whatever might be their origin or their modes of acquisition, and all of them devolve on his death in accordance with the law..”

9. Upon relying the said decision, the learned first appellate Judge reversed the Judgment and Decree of the Additional Sub Judge, Pondicherry and dismissed the suit by allowing the appeal. Challenging the said Judgment of the first appellate Court, the appellant is before this Court byway of this second appeal.

10. The following substantial questions of law arise for consideration in this second appeal:

1. Whether the Lower Appellate Court is correct in law to raise a issue of domicile of the of the plaintiffs father for the first time in Appeal without any pleadings and then give a finding on that issue?

2. Whether the Lower Appellate Court is correct in law to hold that the plea of the plaintiff to set aside the Ex.B7 document is barred under Art. 59 on the Limitation Act, 1963? “

11. The learned counsel for the appellant submitted that the appellant was not aware of the sale deed Ex.A4 (Ex.A4 = Ex.B7) executed by his father Kichenane @ Krishnasamy in favour of the 1st respondent. Ex.A4 is the certified copy of the sale deed, dated 15.12.1992 and Ex.B7 is the original sale deed executed by Kichenane @ Krishnasamy in favour of the 1st respondent. It is seen from the evidence produced in this case, especially from the recitals in Ex.B7 that the suit property is an ancestral Property of Kichenane @ Krishnasamy. Therefore, it is not open to the appellant’s father Kichenane @ Krishnasamy to execute the sale deed in respect of the ancestral property to the 1st respondent. The appellant’s father Kichenane @ Krishnasamy has not renounced his Indian Citizenship and therefore Section 2(A) of the Puducherry State Amendment Act, 1956 is not applicable to him. It is clearly shown in Ex.B7, that the suit property is an ancestral property and the sale in favour of the 1st respondent is void as direct legal heirs of Kichenane @ Krishnasamy are alive. Hence, the appellant is entitled to half share in the suit property.

12. In response, the learned counsel for the respondents submitted that the suit property is the absolute property of Kichenane @ Krishnasamy. The learned first appellate Judge correctly found that the suit property is an absolute property of his father. In support of his contention, he relied on the Judgment reported in 2010 (1) MWN (Civil) 1 referred supra. The suit was filed to an total extent of 8845 sq.ft. Ex.A7 copy relates only to 845 square feet. The remaining extent of 8000 square feet was sold to many persons. They are not impleaded as parties to the suit. Most importantly, the sisters of the appellant and the 2nd respondent are not impleaded in the suit. The suit is filed suppressing the real facts and giving false facts. At the time of purchase of the suit property by the 1st respondent, there was only a thatched hut in the suit property. The 1st respondent applied for permission for construction of a house in 1993 and then put up a three storeyed building. The plan approval produced as Ex.B8 shows the construction in the suit property. She has also produced Ex.Bl to show that the land tax of the suit property which was initially assessed in the name of Kichenane @ Krishnasamy. The claim that the appellant came to know about Ex.B7 only before institution of the suit, is not correct for the reason that the appellant had pretty well known about the execution of Ex.Al Sale Deed even when it was executed. Thus, the suit is barred by Limitation.

13. I have considered the rival submissions and perused the records available.

14. The learned counsel for the appellant submitted that the first appellate Court has decided the issue on the domicile of the plaintiffs father for the first time in the appeal without any pleading and had given a finding that under the Hindu law as in vogue in Pondicherry, the properties held by Hindu male, who is the father of the joint family, are his absolutely properties, irrespective of their origin or modes of acquisition based on the decision reported in 2010 (1) MWN (Civil) 1 supra.

15. Perusal of the written statement of the respondents / defendants, shows that they claimed the suit property as the self acquired and separate property of the deceased father. There is no pleading with regard to the applicability of Hindu Succession Act, 1956 or Coromandal Hindu law of Pondicherry. Section 2 (A) of the Pondicherry State Amendment to Hindu Succession Act makes this act inapplicable to renouncants of the Union Territory of Pondicherry. This position was reiterated in the Judgment of the Hon’ble Division Bench of this Court in Muthaiyan Vrs. Poongothai and ors. reported in 2017 SCC online Mad 23877 . Under Coromandal Hindu Law of Pondicherry, any gratuitous transfer by the Hindu male in excess of 1/8* share, will not bind the other legal heirs. This position is made clear by the Division Bench of this Court in the Judgment reported in 2002 3 LW 669 in Krishnamurthy Gounder Vrs. Sitaram Gounder and ors. Therefore the finding of the first appellate Court that the properties of the male domiciled in Pondicherry are the absolute properties, irrespective of origin or mode of acquisition of such property, is not correct.

16. The learned counsel for the appellant relied on the Judgment reported in (2016) 3 LW 385 in M.Kadirvelu and ors. Vrs. G.Santhanalakshmi and ors. for the proposition that the Hindu Succession Act, 1956 would generally apply to the inhabitants of Pondicherry, except those, who are renouncants of the Union Territory of Pondicherry.

“36. The resultant position is that by virtue of the Regulation of the year 1963 and the Act of the year 1968, the provisions of what we may call as the Hindu Code, namely the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956, would generally apply to the inhabitants of Pondicherry, except those, who are renouncants of the Union Territory of Pondicherry.

37. But, unfortunately neither the 1963 Regulation nor the 1968 Act defined the expression “renouncants”. Therefore, the question as to who a renouncant is, has often baffled Courts.

38. The normal English word “renounce” is defined by Merriam-Webster Dictionary to mean “to give up, refuse or resign or to refuse to follow, to refuse to obey, etc. While these meanings are given by the said dictionary to the word “renounce”, when used as a transitive verb, a different set of meanings is assigned to the same word when used as intransitive verb. Since we are not concerned here with the meaning of the English word “renounce”, we need not take note of other meanings.

39. But, what is important to note is that according to the Merriam-Webster Dictionary, the English word “renounce” originated from the Anglo-French word “renuncer” and from the Latin word “renuntiare”.

40. As we have seen earlier, the French Code Civil was made applicable to the inhabitants of the French Settlements of Pondicherry, Karaikal, Mahe and Yanam by the resolution dated 6.1.1819. But, this resolution contained a saving clause. By a subsequent resolution dated 24.4.1880, provisions relating to registration of births and deaths and performance of marriages were regulated. Even this resolution contained a saving clause, making it optional to the Indians to follow their own customs. It appears that a further option to the Indians to switch over to the French way of life was given under another resolution dated 21.9.1881. By this option, the inhabitants were allowed to renounce their Personal Law and espouse the French law. People, who availed this opportunity and exercised the option to renounce their Personal Laws, emerging out of customary rights and practices, were called renouncants.

41. It is a linguistic paradox that the descendants of the renouncants inherited the consequence of renunciation by their forefathers. Mr.Ramabathiran cites in his article, 3 decisions, which recognised the consequence of such renunciation. One was a judgment dated 12.11.1870 by the then Cour d’ Appel at Pondicherry, which held valid the recourse by Muslims to the freedom of guardianship as organised by the French Code Civil. The second was the case of a Hindu widow, who adopted a son to herself. The adoption was held valid by the Privy Council in CS.Nataraja Pillai v. CS.Subbaraya Chettiar [AIR 1949 PC 24].

42. Therefore, persons, who exercised the option to renounce their customary laws and adopted the French Code Civil, are not governed by the provisions of Hindu Succession Act, 1956. But, it must be remembered that by its very nature, the saving clause applies only to persons, who are inhabitants at the time when the French Code Civil was extended. Persons, who are descendants of those inhabitants, are also entitled to the benefit. But, persons, who became inhabitants of Pondicherry after the application of the French Code Civil, are not entitled to claim that they are renouncants.”

17. In the case before hand, there is no evidence to show that Kichenane @ Krishnasamy has renounced Hindu Customary Laws and adopted the French Code Civil. Therefore, this Court finds that the parties to the suit are governed by the Hindu Succession Act, 1956.

18. The appellant mainly relied on the recitals in Ex.B7 sale deed in support of his case that the suit property is an ancestral property. It is true that it is mentioned in Ex.B7 sale deed that the suit property belonged to Kichenane @ Krishnasamy ancestrally and he sold the property to the 1st respondent. He also relied on the evidence of P.W.2, his paternal uncle in support of his case that the appellant and respondent’s mother were all living as a joint family in a thatched house in the suit property.

19. It is seen from Ex.B7 sale deed as well as from the evidence of P.W.2 that at the time of purchase of suit property, there was only a hut. Therefore, the three storeyed building now exists in the suit property should have been constructed only after 15.12.1992. However, the pleading in the plaint shows that the suit property was constructed in the year 1990.

20. It is an admitted case of the appellant that he was born in the suit property in the year 1969 and in 1990, he must have been around 21 years. He claimed that he earned more than Rs. 5,000/- per month by working in a private company and contributed the money for the construction work. Absolutely there is no evidence to show that how much money was contributed by the appellant for the construction of three storeyed building in the suit property. The appellant has also not produced any material to show as to whether the approval for the construction of building was obtained from the authorities when he claimed that the three storeyed building was constructed in the year 1990. During the course of cross examination, he stated that he is not aware of the construction of second floor in 1995. On the other hand, it is seen from the evidence produced by the respondents, especially, Ex.B8, approval issued by the Pondicherry Planning Authority that the approval was given on 04.05.1993. In the absence of any evidence in favour of the appellant that the three storeyed building was constructed by the appellant and his parents in 1990 and in the presence of Ex.B7 sale deed and Ex.B8 plan approval, it can be safely concluded that the 1st respondent purchased the suit property with a hut under Ex.B7 and then she constructed the three storeyed building in the suit property. The three storeyed building cannot be constructed in a day or two. During 1990’s, the construction technologies are not that advanced and it would have taken atleast one year for the completion of the construction work of a three storeyed building at a stretch or in stages.

21. The claim of the appellant that he was not at all aware of Ex.B7 sale deed in favour of the 1st respondent and the construction made by the respondents, cannot be accepted. Though the appellant claims that he had been in possession of the suit property till filing of the suit, he has not produced any materials in support of his claim. On the other hand, it is admitted in the plaint itself that the respondents are occupying the ground floor and two other floors were let out to other parties. Thus it is effectively disproved that the claim of the appellant that he was in possession of the suit property before filing of the suit.

22. The certified copy of the sale deed, dated 15.12.1992 executed by Kichenane @ Krishnasamy in favour of the 1st respondent Ex.A4 shows that the copy was obtained by the appellant on 23.11.2004. However, he has not immediately filed the suit and he filed only in 2006. Therefore his claim that he was not aware of Ex.B7 sale deed until before filing of the suit, could not have been true. The appellant has not produced any material to show that the three storeyed building in the suit property was constructed in the year 1990 and he contributed money towards the construction work. On the other hand, the respondents satisfactorily proved that the 1st respondent purchased the suit property under Ex.B7 with a hut and later constructed a three storeyed building in the suit property. The claim of the appellant that he came to know about Ex.B7 sale deed just before filing of the suit, could not have been true for the reason that the parties are close relatives and could not have missed the construction of the three storeyed building in the suit property in 1993. Therefore, this Court is inclined to concur with the finding of the learned first appellate Judge that the suit is barred by limitation under Article 59 of the Limitation Act.

23. Though a plea that the property covered under Ex.B7 is only 845 sq.ft from the total extent of 8845 sq.ft and 8000 sq.ft were sold to third parties and they are not impleaded as parties to the suit is raised before this Court, there was no pleadings in the written statement in this regard and both the Courts below have also not taken note of this issue. Therefore, this Court cannot take up this issue now. Even as per the plaint averments, the appellant admitted that there are other legal heirs of Kichenane @ Krishnasamy. It is specifically pleaded in the written statement that the appellant has sisters viz., Rajalakshmi, Tamilselvi and Vimala. In a suit for partition, all the legal heirs are necessary parties. Hence, it is necessary to implead all the other legal heirs in a suit for partition. This suit is bad for non joinder of proper and necessary parties.

24. In view of the reasons stated above, this Court finds that the finding of the first appellate Court that the suit property is the absolute property of Kichenane @ Krishnasamy, is not correct for substantial question of law no.l. The first appellate Court was correct in holding that the suit is barred by limitation under Article 59 of the Limitation Act. Hence, the 2nd Substantial question of law is also answered against the appellant and in favour of the respondents. When it is held that the suit is barred by limitation, appellant is not entitled for any relief claimed on the suit.

25. In fine, the Second appeal is dismissed with the costs of the respondents, by confirming the Judgment in A.S.No.15 of 2012 on the file of the learned Principal District Judge, Puducherry. Consequently, connected miscellaneous petition is closed.

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