1. This second appeal has been filed by the plaintiff in O.S No. 69 of 1970 in the court of the Additional Subordinate Judge, Pondicherry. He filed a suit for a declaration that the sale deed executed in favour of the first defendant and subsequently the sale deed executed by the first defendant in favour of the second defendant are null and void. The suit properties originally belonged to the plaintiff's ancestors. The plaintiff's father got them under a partition-dated 31-1-1922, marked as Ex. A-f. The plaintiff's father, who is not a party to the suit, executed a sale deed in favour of the first defendant on 6-1-1969, marked as Ex. A-12. The first defendant is none other than the brother-in-law of the plaintiff. In other words, the first defendant has married the plaintiff's sister. The sale deed was thus executed by the plaintiff's father in favour of his son-in-law. The first defendant executed a sale deed in favour of the second defendant. The case of the plaintiff was that his father was a person of unsound mind and that the sale deed in favour of the first defendant having been executed when he was a person of unsound mind conveyed no title to the first defendant and that the first defendant in turn cannot sell the properties in favour of the second defendant.
2. The defendants took up the stand that the plaintiff had no locus standi to question the alienation, that his father was the absolute owner of the properties and that he could deal with it in the best manner possible. They disputed that the plaintiff's father was of unsound mind and therefore incapable of executing the document in favour of the first defendant.
3. The trial court, after framing relevant issues, came to the conclusion that the first defendant purchased the properties from his father-in-law without valid consideration and knowing that he was a lunatic, that the sale deed in his favour was, therefore, null and void and that the second defendant was not a bona fide purchaser for valid consideration. In the result, the suit was decreed as prayed for by the plaintiff.
4. The second defendant filed an appeal, which was disposed of by the First Additional District Judge, Pondicherry. He held that it was not proved, that the plaintiff's father was of unsound mind at the time of execution of Ex. A-12, that the plaintiff had no right to question the validity of the sale deed for want of consideration as the vendor alone could do so and that the plea of nullity of the sale deed was not maintainable. It is against this judgment and the decree following it, the present second appeal has been filed.
5. At the time of the admission of the second appeal, the following substantial question of law was framed, as arising out of the judgment of the lower appellate court-
Whether the suit properties are ancestral properties in the hands of the plaintiff's father and if so whether the Hindu Succession Act 1956 is not applicable in which event the plaintiff would be entitled to half share unless the sale by the father was for binding purpose? The learned counsel for the appellant submitted that the plaintiff had, under the Hindu Law, a right by birth, that the father cannot be taken to be the absolute owner of the properties, that the father was a person of unsound mind and that even if he had any absolute interest the transfer by him in favour of the first defendant was null and void. The respondent, by his counsel, countered these submissions.
6. It is, in this context, necessary to find out the legal position applicable to the Hindus in the State of Pondicherry. Under the Hindu Law in force in that territory Hindu sons did not acquire any interest in the father's property by birth, whether the property be the self acquired property of the father or his ancestral property. This proposition was enunciated by the Superior Court of Appeal Pondicherry in App. No. 326 of 1964, and has been referred to in Ramalingam v. Manicka Gounder,(1980) 2 Mad LJ 350. In fact the French writer Sanmer in his work on Hindu Law summed up the position as follows: -
"Today, by virtue of a more correct interpretation of custom, the theory of coparcenary system between father and sons in respect of the ancestral properties is abandoned in our establishment of Coromandel Coast. It is to the head of the family only, in reality, in the juridical sense of the word, the assets deriving from the ancestor belong, and he alone has capacity to exercise, in -principle the right to dispose, which is conferred on him by owner's right."
7. It is this principle of law which indisputably governs the rights of the parties. It is thus clear that the plaintiff's father was the absolute owner of the properties.
8. Mr. G. Subramaniam, learned counsel for the appellant, contended that even assuming that the father held the properties in absolute terms, still the son, i.e., the plaintiff, was in the position of a reversioner, who could dispute the alienation made by the father. For this purpose he drew on the analogy of reversioners challenging the alienation made by a Hindu widow or other female heir. It is true that the courts have recognised the right of a reversioner to file a suit for a declaration that the alienation by a Hindu widow or other limited owner is not binding upon the reversioner. Such a principle cannot be applied to the facts of the present case, for two reasons. The first is that analogy is a dangerous horse to ride and it would be prudent to keep away from it, and the second is that the father, in the present case, is not in the position of a Hindu widow or a female heir, who had only limited powers of disposition over the properties. The father, in the present case, having an absolute interest in the properties had plenary powers of disposition. The analogy of the right of reversioner cannot be applied to the present situation.
9. Learned counsel for the appellant contended that the Hindu Succession Act 1956 had been extended to the territory of Pondicherry even in 1963, that the alienation by the father took Place in 1969 and that, therefore, the appellant having a right to succeed to the properties, as recognised by that statute, could come forward with the present suit. The provisions of that Act would come in for application only at the time of succession or in other words, when succession opened, the plaintiff cannot invoke the provision of that Act and build upon a contention in the circumstances of this case, as the father, the absolute owner is very much alive.
10. Section 6 of the Hindu Succession Act provides that when a male Hindu died after the commencement of the Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. The postulate behind this Provision is that the property must be coparcenary property. The terms 'coparcenary property' cannot be applied to the absolute property held by the plaintiff's father and in this case as absolute rights of disposition cuts at the root of the property being coparcenary property. In the case of Ramalingam v. Manicka Gounder, (1980) 2 Mad LJ 350 already referred to it has been held that the plea of survivorship embodied in S. 6 is not available in such cases. It would thus follow that the plaintiff has no present right in the properties so as to be in a position to challenge the alienation.
11. On the assumption that the plaintiff can challenge the alienation, the contention that the alienation is null and void as the plaintiff's father was a lunatic may now be examined. The plaintiff relied on Ex, A-9 under which he had issued to all the Notaries of the territory of Pondicherry an opposition on 5-7-1963, forbidding them to write any sale deed at the request of his father. The court below has pointed out that, the Gazette Notification under Ex. A-3 and the caveat to the Notaries have not been issued in pursuance of any court order. In the absence of any court order. it is not clear how an advertisement in the Gazette or a mere notice issued to the Notaries could have any legal validity so as to defeat the alienation made by the father. No authority before me to show that such notices resulted in emasculating the transactions of their validity.
12. The plea that the father was an insane person and, therefore, the alienation was null and void was sought to be supported by the production of a medical certificate, Ex. A-8 and also the depositions of P.Ws. 2 and 3. P.Ws. 2 and 3 spoke of the facts as known to them in the year 1963. The medical certificate was issued in 17-1'2-1971. We are, however, concerned with the validity of the transaction on 6-1-1969. There is no evidence to show that on the particular date or at about that time the plaintiff's father was a lunatic, In the light of the above discussion, it would be clear that the alienation in favour of the first defendant as such cannot be impugned and, that even assuming that it could be impugned, there is no evidence to show that it lacks any validity.
13. Learned counsel for the respondent submitted that in the case of a document executed before a Notaire, it must be presumed that the document is a valid one. He went to the extent of submitting that the validity of such a document is conclusive. It is true that a Notaire is not in the same position as Registering Authority under the Indian Registration Act, and that he combines in himself certain other functions as shown by the decision of this court in Mourougaessa Mudeliar v. Aguilandammallee (died), App. No. 422 of 1969 judgment dated 7-12-1977 by a Bench of this court consisting of Ismail J. as he then was, and Natarajan J. The functions of a Notaire are not strictly identical with those of the officials empowered to register the documents under the Indian Registration Act, However, as brought out in an article by L. Neville Brown of the University of Lyons in Vol. 11 1953, of the International and Comparative Law Quarterly, it is possible to impeach the transaction on the score of falsity by appropriate evidence. The impeachment for falsity is a very involved and costly procedure under the French Law. In terms of the Indian conditions, the impeachment could be by a suit supported by proper evidence to show that the transaction was a false one. In the present case, there is no such convincing proof that the transaction was in any manner false, It appears as if the transaction is being challenged as a kind of nominal transaction not supported by consideration. The Court below has pointed out that the document was executed before a Notary Public who had the duty to examine personally the parties and to ascertain that they are fit and able to give their consent to the transaction. The burden of proof that lay on the plaintiff to show that the notaire's duty had not been properly performed in the present case has not been discharged. The result is that the validity of the alienation is not assailable on any grounds taken by the plaintiff. The court below rightly dismissed the suit.
14. The second appeal is dismissed. There will be no order as to costs.
15. Appeal dismissed.