1. Plaintiffs 2 to 4 in O.S. No. 382 of 1971, Second Additional Sub Court, Pondicherry, are the appellants in this Second Appeal. The suit was laid originally by one Sandanamarie Ammal for a declaration that she was entitled to one-half of Newtone Theatre, Pondicherry, with all appurtenances and for a permanent injunction restraining the first respondent herein from entering into any compromise with one Selvaraj affecting her half share and also from receiving any amount deposited by Selvaraj or by the Receiver and from in any manner interfering with her half share in the said theatre. The circumstances leading to the institution of the suit were as under: One Chinnasami Pillai alias Sami Pillai and his wife Mariamarie, who were residents of Pondicherry, had three children, one daughter and two sons. Sandanamarie Ammal was their daughter, while the first respondent Alexis Sandanasamy and another Mariakozhandasami were the sons. Mariakozhandasami died on 5-6-1967 intestate and as a bachelor. At the time of his death Mariakozhandasami was the exclusive owner of Newtone Theatre, Pondicherry. On the death of Mariakozhandasami, one R. K. Selvaraj of Mudaliarpet instituted a suit in the Court of First Instance, Pondicherry against, the first respondent herein and one Vaithilinga Mudaliar, claiming ownership of Newtone Theatre and that suit was later, on continued in O. S. No. 122 of 1968. Principal District Court, Pondicherry, and, dismissed holding that the deceased, Mariakozhandasami alone was the owner of Newtone Theatre.
According to Saadanamarie. Ammal, on the death of Mariakozhandasami, she and the first respondent herein wore his legal heirs entitled to succeed to his properties. It was also her further case that the deceased. Mariakozhandasami even during his lifetime, wanted to name his heirs and was directing the first respondent herein to record Sandanamarie Ammal and the first respondent as his heirs, but that before tie could so record he died and thereupon the first respondent by an act de notoriete dated 10-1l-1967,Ammal and heirs of the deceased Mariakozhandasami. Sandanamarie Ammal also stated that thereafter a power of Attorney was executed by her in favour of the first respondent to enable him to look after the affairs of, the cinema theatre, but that the first respondent, owing to the dismissal of the suit filed by Selvaraj wherein a finding was given that Mariakozhandasami was the owner of the theatre, began to set up exclusive title to the theatre in utter disregard of the title of Sandanamarie Ammal to the property. It was also the further case of Sandanamarie Ammal that against the dismissal of the suit in O. S. No. 122 of 1969. Selvaraj had preferred an appeal and that he and the first respondent herein were attempting to bring about a compromise with reference to the Newtone. Theatre and this led to the revocation of the power given by Sandanamarie Ammal to the first respondent by a lawyer's notice dated 7-10-1971, which was also received by the first respondent and acknowledged by him. Despite this, according to Sandanamarie Ammal, the first respondent was hastening to bring about some compromise with Selvaraj in order to take away the, theatre and the proceeds therefrom defeating her rights and it was under these circumstances that Sandanamarie Ammal laid the suit for the reliefs Set out earlier against the first respondent herein and also one Sivaprakasam, Advocate, who was in possession of the theatre as a Receiver of, Court. On the death of Sandanamarie Ammal, the appellants and the second, respondent in the second were brought on record as, plaintiffs 2 to 5 in the suit.
2. In the written statement filed by the first respondent, while admitting the relationship between the parties and that Mariakozhandasami was declared as the owner of Newtone Theatre, he put forth a plea that he being the brother of the deceased Mariakozhandasami, would alone be the legal heir to succeed to his properties and that Sandanamarie Ammal cannot claim any right or interest in the Property of the deceased Mariakozhandasami It was also admitted by the first respondent that Mariakozhandasami, during his lifetime, has asked him to look after the theatre with the idea of leaving the property to him. Act de notoriete was written, according to the first respondent, on an erroneous view of the law and would not confer any right to the property of Mariakozhandasami on Sandanamarie Ammal, who was not an heir according to law. The first respondent disputed that he acted as the agent of Sandanamarie Ammal and further stated that Sandanamarie Ammal had invented a story that Selvaraj and the first respondent were trying to bring about a compromise with reference to the theatre. After referring to, Selvaraj and the orders the first respondent reiterated his claim that he is the only legal heir who can succeed the properties of Mariakozhandasami and that Sandanamarie Ammal was a intended to prevent him from claiming rights in the theatre as well as in its collections. On these grounds, the first respondent prayed for the dismissal of the suit.
3. Before the trial Court, on behalf of the appellants, Exts. A1 to A7, were marked and P.Ws. 1 to 3 were examined while, the first respondent alone was examined on his behalf and no documents were filed. On a consideration of the oral as well as the documentary evidence, the learned Second Additional Subordinate Judge, Pondicherry found that Sandanamarie Ammal had given the Power of Attorney in favour of the first respondent to manage the theatre on her behalf as well and that the parties would not be governed by the local Customary Hindu Law so as to deprive Sandanamarie Ammal of her share in the Properties of the deceased Mariakozhandasami. Dealing with the question whether the act denotoriete would in any manner effect the right of the first respondent, the learned Subordinate Judge was of the view that it was unnecessary to consider the question as that was not the only basis on which the claim had been made. In view of these conclusions on the other points, a decree was granted in favour of plaintiffs 2 to 5, in the suit to the effect that they are entitled to a declaration in respect of a half share in the Newtone Theatre with all benefits and appurtenances and that the plaintiffs 2 to 5 will also be entitled to a half share in the past profits of the theatre for three years prior to the suit. The relief of injunction was not considered to be necessary. The suit was thus decreed to the extent mentioned above.
Aggrieved by this, the first respondent preferred an appeal in A. S. No. 2 of 1978 to the First Additional District Court, Pondicherry. On the question whether Sandanamarie Ammal would be a heir of her deceased brother Mariakozhandasami, the learned District Judge found that according to the local Hindu Law as well as the Customary Hindu Law applicable to the parties, the first respondent, a brother of the deceased Mariakozhandasami, would exclude the sister Sandanamarie Ammal in the matter of succession to the property of the deceased Mariakozhandasami. Referring to act do notoriete, the learned District Judge found that a mere declaration will not operate as estoppel and that no legal rights could be created by such a declaration in favour of Sandanamarie Ammal or the plaintiffs 2 to 5 in the suit and that there was no need for the first respondent to have the act de notoriete set aside. In view of the conclusions arrived at as stated above, the appeal was allowed and the suit instituted by Sandanamarie Ammal was dismissed. It is the correctness of this that is challenged by plaintiffs 2 to 4 in this second appeal.
4. During the pendency of the second appeal, third appellant (fourth plaintiff in the suit) died and by order dated 21-8-1978 in C. M. P. 8435 of 1978, the third respondent in the second appeal was brought on record as her legal representative. Similarly, on the death of Alexis Sandanamarie the first respondent in the second appeal, respondents 4 to 6 in. this second appeal were brought on record as his legal representatives by an order dated 2-12-1982 in C. M. P. 2641 of 1982.
5. The first point urged in support of this second appeal is that Sandanamarie Ammal and Alexis Sandanasami being the sister and brother respectively of the deceased Mariakozhandasami would be his heirs in law entitled to succeed to the assets and estate of Mariakozhandasami and as such the appellants and the respondents 2 and 3 will be entitled to a half share in the Newtone Theatre. Per contra, the learned counsel for the respondents 4 to 5 would contend that even according to the claim made in the plaint, though the parties professed Christian religion, they would be governed by the Customary Hindu Law prevalent in Coromandal Coast and in view of the inapplicability of the provisions of the Hindu Succession Act, 1956, extended to the territory in question in 1962, the sister Sandanamarie Ammal will stand excluded by the brother Alexis Sandanasami under Hindu Law and, therefore, the dismissal of the suit by the lower appellate Court cannot be taken exception to.
6. It is true that the parties in this case profess Christianity. Even so, according to the claim made by Sandanamarie Ammal in paragraph 3 of the plaint, they would be governed by the Customary Hindu Law. The written statement filed by Alexis Sandanasami does not in any manner dispute this. The arret dated 6-4-1819 which extended under Art. 1the provisions of Code Civil will not have any application in this case, as Art. 3 thereof provides that Indians, either Christians or Mohamedans or Hindus of Pondicherry will be governed as in the past by their usage is well as custom. It is not the case of the parties that Mariakozhandasami was a renoncant. In other words, with reference to succession to the properties and assets of the deceased Mariakozhandasami the parties, though Christians, would nevertheless be governed by the Customary Hindu Law in Pondicherry. Under the Customary Hindu Law relating to succession to the property of a deceased mate, the sister of the deceased male heir entitled to succeed to the property of the brother. This was the position under the Customary Hindu Law of Inheritance till the passing of the Hindu Law of Inheritance (Amendment) Act, .II of 1929, which came into force on 21-2-1929. Under Section 2 of that Act, four more heirs were introduced as persons entitled to succeed to the estate of a Hindu male dying intestate. They were son's daughter, daughter's daughter, sister and sister's son and in that order they were entitled to succeed next after a father's father and before a father's brother. But the provisions of this Act were made applicable to the whole of British India including British, Baluchistan and the Sonthal Parganas. The Provisions of this Act not having been made applicable to the then territory of Pondicherry succession to the estate of a male Hindu dying intestate, whether, he was a Christian governed by the Customary Hindu Law or a Hindu governed by the, Customary Hindu Law, continued to be governed by the Customary Hindu Law, according to which the brother of the deceased excluded the sister.
This was the state of affairs till serious inroads were made into the Customary Hindu Law of succession by the, enactment of the Hindu Succession Act, 1956, extended to the Pondicherry Territory in 1962. Unfortunately, even this extension of the Provisions of the Hindu Succession Act, 1956 to the territory of Pondicherry was of no avail with reference to the Christians governed by the Customary Hindu Law, as in this case. With reference to such persons, the applicability of the Customary Hindu Law even in matters of succession which was in force immediately before was preserved under S. 2(1)(c) of the Hindu Succession Act, 1956. Indeed, in Pauline Lucas v. Jerome Pascal, : AIR1977Mad270 , this has been recognized and it has been laid down that in so far as Christians in the State of Pondicherry are, concerned, they are governed by the Hindu Customary Law and as the Hindu Succession Act does not apply to Christians in that State, the Law of Succession applicable would be the Customary Hindu Law prevalent in Pondicherry prior to the extension of the Hindu Succession Act. This decision lays down the inapplicability of the Provisions of the Hindu Succession Act, 1956, in matters of succession to persons professing the Christian faith, but governed by the Customary Hindu Law. In such cases, succession to the properties of a male dying intestate, will be in accordance with the Customary Law and the sister will be excluded. This position is also clearly laid down in SannerHindu Law, pp. 248 and 249 as under (official translation)
'Can the sisters compete with the brothers or at least inherit in their absence? We have seen that the successional devolution on the Coromandal Coast takes place, in a general manner, at first in favour of agnates sapindas, from male to male, then in favour of samanodacas who are the most distant agnates and that parents cognates or bandhus are called only in the last place. It results from it that the sisters of the deceased are surpassed by all the ascendants and collateral heirs of masculine sex belonging to the two classes of the heirs. (Underlining mine). It is in that way the Court of Appeal of Pondicherry pronounced a judgment on 9th April, 1904, where it summed up the doctrine followed on this point in our Establishments. The question of the case was to know whether the properties of the deceased should go to his sister or to his cousins born of German. The Court gives preference to the latter.'
It is thus seen that unaffected by any of the statutory changes brought about by the enactments referred to earlier the parties in this case, though Christians, would nevertheless be governed only by the provisions of the Customary Hindu Law and if that be so, then the sister would stand excluded by the brother in the matter of succession to the estate of a deceased brother, it would, therefore, follow that Sandanamarie Ammal (deceased first plaintiff) cannot claim to be an heir along with Alexis Sandanasamy in respect of the properties of the deceased brother Mariakozhandasami. The conclusion of the Court below in this regard is quite correct.
7. The learned counsel for the appellants next contended on the strength of act de notoriete Ext. A4, dated 10-11-1967, that Sandanamarie Ammal had been recognised and accepted by Alexis Sandanasamy as an heir qualified to succeed to the estate of the deceased Mariakozhandasami and that Alexis Sandanasamy had also been constituted as the Power of Attorney agent of Sandanamarie Ammal under Ext. A5 and, therefore, Alexis Sandanasamy cannot now be permitted to repudiate the status of Sandanamarie Ammal as an heir of the deceased Mariakozhandasami. It was also pointed out that act de notoriete is a solemn act and a declaration thereunder made before a Notaire cannot be lightly disregarded and in the absence of any steps taken by Alexis Sandanasamy to set at naught the declaration made by him in the act de notoriete, he should be pinned down and bound to the statement at least with reference to the suit property. Reliance was also placed in this connection upon Article 1323 of the French Code Civil. The learned counsel for the respondents 3 to 5 submitted that the act de notoriete under Ex. A-4 was made under a mistake under the impression that the provisions of the Hindu Succession Act 1956 would apply and that in any event, merely by a declaration, a person, who is not an heir at law entitled to succeed to the estate of a deceased person, cannot be equated to the position of such an heir as to claim inheritance on intestacy. It was also further pointed out that if the declaration to the effect that Sandanamarie Ammal is also an heir of the deceased Mariakozhandasamy with reference to the suit property only is accepted then it would result in the anomalous position that with reference to different properties of a deceased person, different persons would be heirs, which cannot be countenanced at all by any Law of Inheritance.
8. Ex. A-4 is the act de notoriete dated 10-11-1967. That shows that at the request of Alexis Sandanasamy, three, persons Joseph, Antonie Stanabady and Chanemougame, who are majors and exercising their civil and political rights appeared before the Notaire and have declared that Mariakozhandasami during his lifetime was the owner land proprietor of the cinema theatre Newtone and that he died as a bachelor on 5-6-1967 in the General Hospital, Pondicherry, as per the certificate dated 28-6-1967, and that he has left his sister Sandanamarie Ammal and his brother, Alexis Sandanasamy as heirs qualified to succeed to his estate and that these facts are known to them and entered in the act de notoriete. The Notaire, the three persons who have made the declaration, as well as Alexis Sandanasamy have appended their signatures thereto. No doubt, Ex. A-4 is a solemn declaration made at the instance of Alexis Sandanasamy before a Notaire.
But, in this case, the question is whether by means of such a declaration, the status of an heir can be conferred on a person who admittedly is not an heir according to the Customary Law of succession governing the parties. The occasion on which and the circumstances under which the act de notoriete under Ex. A-4 was made do not appear clearly from Ex. A-4. Apart from the circumstances that Ex. A-4 proceeds to record a declaration on the basis of the knowledge of three persons, namely, Joseph Antonie Stanabady and Chanemougame, who had appeared before a Notaire, there does not appear to be anything in Ex. A-4 to indicate that Alexis Sandanasamy being fully aware that the sister was not an heir, had either agreed to or consented to give a share in the suit property to the sister Sandanamarie Ammal recognising her also as an heir. In the absence, of anything in Ex. A-4 to that effect, it is difficult to pin Alexis Sandanasamy down to the statements made by the three persons named therein, though at his instance. It may even be that on account of a mistaken impression and a misconception of law as well, such a declaration had been made by the three persons, But legal effect recognising Sandanamarie Ammal also as an heir of the deceased Mariakozhandasamy entitled to succeed to his estate cannot be given to it. If, for instance, instead of the sister, the name of an utter stranger had been declared by the three persons named in Ex. A-4, at the instance of Alexis Sandanasamy, as an heir, entitled to succeed to the estate of his deceased brother, then it follows that the legal effect could not be given to such a declaration, for it would have the effect of thrusting upon an utter stranger the status of a legal heir to a deceased person, who was probably in no manner related at all to him. In this case, the only difference is that Sandanamarie Animal happened to be the sister of the deceased Mariakozhandasamy and that in that sense, she, might not be a stranger, but by a declaration of Alexis Sandanasamy, her position only as a sister cannot be converted into one of an heir entitled to succeed to the property of her deceased brother Mariakozhandasamy. Therefore, the contention of the learned counsel for the appellants that the declaration in Ex. A4 must be recognised and given effect to cannot be accepted. If, even a limited recognition to the declaration in Ex. A-4, with reference to one of the properties, as contended for by the learned counsel for the appellants, is given, then it will lead to an anomalous situation. It would mean that with reference, to the theatre only, Alexis Sandanasamy and Sandanamarie Ammal would be the heirs entitled to succeed to that property of the deceased Mariakozhandasamy, who died intestate, but with reference to his other, properties, only Alexis Sandanasamy would be the sole heir. In other words, even though under law Sandanamarie Ammal would not be an heir, she is recognised by an act of parties to be an heir with reference to one item of property and not recognised at all as an heir for any other Purpose or with reference to the other items of the properties. The acceptance, of the contention urged by the learned counsel for the appellants, even to a limited extent, would thus result in the afore-said wholly anomalous, fallacious and illogical situation, This contention of the learned counsel for the appellants, also cannot, therefore, be accepted. No other point was urged.
9. Consequently, the lower appellate Court was quite correct when it proceeded to hold that Sandanamarie Ammal would not be entitled to as an heir to succeed to the estate of Mariakozhandasamy and that the fast respondent Alexis Sandanasamy alone would be the heir to his deceased brother and that the suit instituted by Sandanamarie Ammal should, therefore, be dismissed. The second appeal, therefore, fails and is dismissed with the costs of respondents 4 to 6.
10. Before parting with this case, it is necessary to place on record the valuable assistance rendered by Thiru S. Govindasamy, Advocate and Government Pleader of Pondicherry, who appeared as amicus curiae in this Second Appeal.
11. Appeal dismissed.