S. Maharajan, J.
1. This special appeal, which is really in the nature of a second appeal, raises certain questions of law. One Arunachalam Pillai, who was the original owner of the suit property (situate in Karaikkal), had four sons (1) Thirumeni (Fourth defendant and father of defendants 1 to 3), (2) Subramanya (father of the plaintiff), (3) Amirthalingam (fifth defendant) and (4) Shanmugam (sixth defendant) and two daughters (1) Meenakshi and (2) Punithavalli (ninth defendants) whose daughter is Damayanthi, the eighth defendant. On 18th May, 1936 Arunachala gave away his second son Subramanya in adoption to one Lakshmana Pillai of Devakkottai. About three weeks before the date of the adoption Arunachala, the natural father, executed a gift under a notarial deed dated 27th April, 1936. Under this deed, Subramanya the donee was to enjoy the usufruct of the suit property for his life and the 'nue propriete' (which approximates to a vested remainder in Indian law) was to go to the sons to be born to Subramanya, and in case Subramanya failed to beget any son, it was to go to a son to be adopted by him from among the sons of his natural brothers. Under French law, the mechanism involved in the donation would be regarded as substitution fidei commissarie. Subramanya, who got the usufruct, is regarded by French law as a greve, whereas the person to whom the 'ne propriete' (naked ownership) was-given would be regarded as an 'appele'. This deed of gift was followed, as I said, by an adoption of the donee into a Devakkottai family on 18th May, 1936. It appears that after the adoption bad blood developed between Arunachala and, Subramanya and the latter inflicted violence upon the former. Under Article 926 of the Code Civil it is open to a donor to revoke a deed even after it has come into effect, in case the donee proves ungrateful to the donor. But this revocation could be effected not by a unilateral document, but only by resort to a Court of law, which after satisfying itself about the ingratitude of the donee, would decree revocation of the deed of gift. Arunachala resorted to this provision of law and filed an action in the Court of First Instance, Karaikkal against his son Subramanya and prayed for cancellation of the donation dated 27th April, 1936 on the ground of ingratitude on the part of the donee. Subramanya, for reasons best known to himself, remained ex parle in that action; whereupon the Court granted a decree on 5th August, 1939 revoking the gift in favour of Subramanya. It may be noted that neither at the time of the donation nor on the date on which it was revoked had any son of Subramanya been conceived or born. The plaintiff, who is the son of Subramanya, was born only on 29th October, 1941. It is not known whether the bitterness that Arunachala had towards Subramanya extended to Subramanya's son Lakshmana Pillai. I have reason to doubt if Arunachala ever intended to visit the sons of Subramanya upon his unborn son. This can foe gathered from the circumstance that at a partition, which Arunachala effected on 30th November, 1949 by a notarial deed between himself and his three sons Thirumeni, Amirthalinga and Shanmuga, he refrained from subjecting the suit property to partition. That might probably be because he wanted the 'nue propriete' to be enjoyed by Subramanya's son in accordance with the deed of donation dated 27th April, 1936. It may also be noted at this juncture that what Arunachala sought revocation of was not the gift over in favour of Subramanya's prospective sons but only that part of the gift which related to the usufruct for life in favour of Subramanya. Arunachala ultimately died on 6th February, 1961. In his last days, while he was probably on his death-bed, he seems to have been persuaded to execute a testament dated 30th December, 1960, whereby he bequeathed the suit property to his natural sons, daughters and grand-daughters (defendants 1 to 9).
2. On 27th June, 1962, the plaintiff instituted a suit in the Court of First Instance, Karaikkal, praying for a declaration that the will dated 30th December, 1960 was null and void and for a direction that the judgment declaring it null and void be transcribed in the margin of the entry registering the factum of the will. The claim was resisted by the defendants on the ground that by judgment dated 5th August, 1939 the whole of the gift deed dated 27th April, 1936 stood cancelled including the gift over in favour of the plaintiff and that the entirety of the property reverted to Arunachala who validly bequeathed the same in favour of defendants 1 to 9. The Court of First Instance rejected the contentions of the defendants and granted a decree in favour of the plaintiff, declaring the will dated 30th December, 1960 null and void and declaring the plaintiff the absolute owner of the suit property. Against this judgment, the defendants preferred an appeal to the Superior Court of Appeal, Pondicherry. The first appellate Court concurred with the findings of the trial Court and dismissed the appeal with costs. It is against this dismissal that the present special appeal has been filed.
3. It is contended on behalf of the appellants that though what was cancelled under the judgment dated 5th August, 1939 was only the gift of the usufruct in favour of Subramanya, still inasmuch as on the date of cancellation the plaintiff was still unborn, the entire property reverted to the donor Arunachala and consequently Arunachala could validly execute a testament on 30th December, 1960 bequeathing the properties in favour of the defendants. On the other hand, learned Counsel for the plaintiff contends that whether we consider the question from the point of view of French Hindu Law or from the point of view of the French Code Civil, that cancellation of the gift of the usufruct in favour of Subramanya, did not in any manner affect the validity of the gift over of the true propriete in favour of the unborn son of Subramanya. The main question that arises for consideration, therefore is whether after the cancellation of the gift of the usufruct in favour of Subramanya, the gift of the 'nue propriete' in favour of his unborn son, continued to be in force in the eye of law. As I have already stated, what was sought by Arunachala to be cancelled and what the Court actually cancelled by its judgment, dated 5th August, 1939 was, not the entirety of the deed of donation dated 27th April, 1936, but only that part of the deed which gifted the usufruct in favour of Subramanya for the term of his life. The deed was, in fact, in the nature of a double-gift and the gift could not be cancelled except for ingratitude of the donee. So far as the first gift in favour of the donee Subramanya was concerned, it was open to the donor in French law to have it cancelled by proving the donee's ingratitude. But so far as the second gift in favour of the unborn son of Subramanya was concerned, there was no scope in French law for Arunachala to revoke it, because he could not allege nor prove that a son who was yet to be born was guilty of ingratitude towards him. It is therefore clear that it was not and could not be the intention of Arunachala at the time he instituted the suit against Subramanya that the gift of the vested remainder in favour of his unborn son could also be revoked. What, then, is the legal position if the gift of the usufruct alone was legally revoked? After the revocation, there remained the gift of the naked ownership in favour of an unborn son. The question arises whether under Hindu Law, as it has been understood in the erstwhile French Indian territory, a gift could be validly made in favour of an unborn son. This very question was put to the 'Comite Consultatif de Jurisprudence Indienne.' The French Courts, like the Courts set up by the East India Company, used to refer difficult questions of Hindu Law to experts and a consultative committee was constituted in French India which consisted of members of different communities and to which Courts used to refer for their opinion upon Hindu Law and usage.
4. In 1831, the question whether a donor governed by Hindu Law could validly donate his or her property in favour of an individual to be born was referred to the consultative committee by the Court and the opinion of the Committee was : 'According to the usage and custom of the Hindus, the donor can validly gift his or her property in favour of individuals to be born, but the committee is unable to point to the book of laws or the Hindu Law text concerning this point'. (Vide page 90 of Leon Sorg's Avis.)
5. It is therefore clear that under pristine Hindu Law, as it was in force in the French Indian territory, a gift made by a Hindu in favour of an unborn son was valid. In fact, according to the Supreme Court, this was also the position is the rest of India under Hindu Law. In Raman Nadar v. S. Rasalamma : 2SCR471 . the Supreme Court observed as follows:
Although there is no authority in Hindu Law to justify the doctrine that a Hindu cannot make a gift or bequest for the benefit of an unborn person, yet that doctrine has been engrafted on Hindu Law by the decision of the Judicial Committee in Tagore's case (1872) I.A. 47 .
Their Lordships proceed to say that the Judicial Committee misinterpreted the Hindu Law text which neither expresses nor implies that the 'sentient being' mentioned in the text must be in existence or be present at the time and place of the relinquishment under a gift. Their Lordships reinforced this view by saying that the paragraphs 21 to 24 of Chapter I of Dayabhaga shows that a gift is completed by the donor's act alone, the acceptance of the donee being not necessary. Indeed, in the very next passage, Dayabhaga speaks of gifts to God thereby showing that the validity of the gifts does not depend upon acceptance. After making these observations, however, their Lordships said that though the Judicial Committee in the Tagore's Case, had misinterpreted this passage, the law as expounded by the Judicial Committee had stood a great length of time and on the basis of that decision rights had been regulated, arrangements as to property had been made and titles to property had passed. Consequently the Supreme Court said : 'We are hence of the opinion that this is a proper case in which the maxim 'communis error facit jus' may be applied.' In other words, according to the Supreme Court, the Hindu Law unamended by legislation permitted gifts in favour of unborn persons, and but for the Privy Council ruling in the Tagore's case, they would have held that such a gift would in the eye of pristine Hindu Law be perfectly valid. This opinion of the Supreme Court is in striking conformity with the opinion given by the members of comite consultatif at Pondicherry.
6. Learned Counsel for the appellants contended that though the Supreme Court held that the Privy Council had misinterpreted the Hindu Law, it has chosen to follow the ruling of the Privy Council and that I must, therefore, apply the principles laid down in the Tagore's case (1872) I.A. 47, even to the facts of this case. I am entirely unable to agree. At the time of the gift the donor in this case was a French Indian citizen governed entirely by Hindu Law as it was practised in that territory. The rulings of the Privy Council or the Supreme Court of India had no binding effect whatsoever upon the citizens of French India before the merger. It would, therefore, follow that I ought to hold that the donation in question in favour of the unborn plaintiff is valid in the light of Hindu Law, which even according to the Supreme Court, (but for the misinterpretation of the Privy Council) permitted gifts in favour of unborn persons.
7. Approaching the gift deed even from the point of view of the Code Civil, I feel compelled to come to the same conclusion. It is true under Article 906 of the Code Civil, in order to be capable of receiving a donation inter vivos it is necessary that the donee should have been at least conceived at the time of the donation. But there is an important exception to the rule embodied in Article 906. As, observed in 'Amos and Wakens Introduction to French Law', (Second Edition) at page 131, the French Courts have accepted the view that the rule of Article 906 is satisfied once there is a person in existence capable of taking directly the grant or the legacy and that there is no need for the beneficiary who is to take through him to be in existence. In this case, the donee of the usufruct was in existence at the time of the gift. The donation in favour of the sons of Subramanya would be valid despite the fact that his sons were not born at the time of the gift deed. In French Law, the Roman concept of substitution fidei commissaire is invoked for the purpose of supporting the validity of donations of the kind in question before me. A substitution, in its widest sense, is disposition by which a third party is called upon to take the benefit of a gift either in default of the original beneficiary or after him. Under Article 896 of the Code Civil substitutions are prohibited, and every disposition of property whereby the donee or testamentary heir or the legatee is required to keep it intact and to transfer it to a third party is void even as respects the gift to donee, testamentary heir and the legatee. But, to this rule, Article 1048 of the Code Civil makes an exception by saying that it is lawful for every one to give or bequeathe property to any one or more of the grantor's children, subject to the obligation to transfer the same to all the children, born or to be born, of the grantee or grantees equally. The donation in this case would come under this exception. The grantee of the usufruct in this case was the grantor's son, and the grant was subject to the obligation to transfer the property to all the children, born or to be born., of the grantee. The question, then, arises, what is the legal effect in French Law of the cancellation of the grant in favour of Subramanya?
8. On the date of the grant, the plaintiff, who is the son of Subramanya, was unborn. In such a case, according to French jurisprudence, the property would revert to the grantor subject to the obligation to hand over the same eventually to the son of Subramanya to be born. As per Note 540 'Dalloz Repertoire Pratique' (Volume 11), under the heading 'Substitution', decisions of French Courts have been quoted to the effect that where a deed of gift in favour of the greve has been revoked for ingratitude, succession in, favour of the appele would open immediately on revocation, though according to certain other rulings, revocation would revest the property, in the donor, who would keep it under an obligation to hand over the property to the appele in case he survives the greve. In this case, the plaintiff was born on 29th October, 1941. At that time, Arunachala, the donor was still alive. The plaintiff, who has survived his father Subramanya, would become entitled under French Law, either on the death of the donor or on the death of the greve, to absolute ownership in the suit property. The will executed by the donor on 30th December, 1960, in favour of the defendants 1 to 9 in disregard of his; duty to hand over the property to the plaintiff, as per the terms of the gift deed dated 18th May, 1936 is, therefore, null and void. Both the Courts below were consequently right in declaring the plaintiffs absolute title to the suit property. The defendants, who have preferred this appeal, must, then fore, fail. This appeal is consequently dismissed with costs. Leave granted.