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Arimuthu and ors. Vs. Latchoumanpoulle - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1979)2MLJ101
AppellantArimuthu and ors.
RespondentLatchoumanpoulle
Cases ReferredRaman Nadar v. S. Rasalamma
Excerpt:
- .....to 3 are the sons of the fourth defendant, and defendants 4 to 8 are the sons of arunachala. by a gift deed, dated 27th april, 1936, arunachala bequeathed the usufruct over the suit property to subramania and gave the remainder to any son born to subramania thereafter to be enjoyed by him absolute. it appears that subramania was adopted to a different family. for reasons not very clear, arunachala filed a suit and sought for the cancellation of the gift deed as above and impleaded therein subramania as a party defendant. subramania remained ex parte, and arunachala therefore got a decree on 5th august, 1939 in his favour whereunder the gift deed, according to the defendants, was cancelled in every perspective which had a bearing on it. after the judgment so rendered as above, the.....
Judgment:

Ramaprasada Rao, C.J.

1. This Letters Patent Appeal is directed against the judgment of Maharajan, J., in Special Appeal No. 279 of 1969 (Civil) agreeing with the Court of First Instance, Karikal, and dismissing the appeal before him. The appellants before him were, the defendants in the action. One Arunachala had six sons, one of whom was Subramania, who died and who was not a party to this action. His son, is the plaintiff in the action. Defendants 1 to 3 are the sons of the fourth defendant, and defendants 4 to 8 are the sons of Arunachala. By a gift deed, dated 27th April, 1936, Arunachala bequeathed the usufruct over the suit property to Subramania and gave the remainder to any son born to Subramania thereafter to be enjoyed by him absolute. It appears that Subramania was adopted to a different family. For reasons not very clear, Arunachala filed a suit and sought for the cancellation of the gift deed as above and impleaded therein Subramania as a party defendant. Subramania remained ex parte, and Arunachala therefore got a decree on 5th August, 1939 in his favour whereunder the gift deed, according to the defendants, was cancelled in every perspective which had a bearing on it. After the judgment so rendered as above, the plaintiff was born to Subramania on 29th October, 1941. The defendants' case is that Arunachala, in and by a will dated 30th December, 1960, bequeathed the suit properties to them, apparently gaining his privilege to execute such a will by reason of the concellation of the gift deed under the judgment and decree, dated 5th August, 1939. Arunachala died on 6th February, 1961, and a writ of summons was taken by the plaintiff in or about 1964 seeking for a declaration that, as remainderman under the gift deed of 27th April, 1936 he was entitled to the suit property, and that the will of Arunachala executed on 30th December, 1960, which would effectively defeat his rights secured by him under the gift deed, was void and unenforceable. The Court of first instance found, in the light of the law adopted by the Hindus residing in Pondicherry, that the cancellation of the gift deed by the judgment, dated 5th August, 1939 or the will of Arunachala dated 30th December, 1960 could not divest the vested interest secured by the plaintiff under the gift deed as above. Maharajan, J., agreed with the Court of first instance, and hence this Letters Patent Appeal.

2. Learned Counsel for the appellants-defendants, would say that Arunachala did have the power to cancel the gift in toto so as to divest the interest of the plaintiff which he is now projecting under the same, and that, Arunachala being fortified by the judgment and decree, dated 5th August, 1939, the will, dated 30th December, 1960 becomes operative and that in this respect the judgment of Maharajan, J., ought to be interfered with. He would refer to certain privileges of the citizens of Pondicherry, who adopted as their personal law, the law of the Hindus which was obtaining in the rest of this country, and would say that a gift to an unborn son would be ineffective and that therefore the gift by Arunachala to the plaintiff, who was not born on the date when the gift was made by him as also on the date when he secured the judgment on 5th August, 1939, would not vest in him any enforceable right to enable him to file the present action. Contending contra, learned Counsel for the respondent-plaintiff, would refer to some provisions of the French Civil Code, touching upon the subject-matter under discussion and would contend that the gift deed contemplates a double gift, which is permissible under the French law adopted by the Hindus and that such a double gift could only be revoked in the case of ingratitude of the donee, that, as the plaintiff was not born on the date when the judgment was secured on 5th August, 1939, the second gift to the plaintiff as the son Subramania under the gift dated 27th October, 1936 should be deemed to have remained untouched and that therefore the plaintiff's prayer for a declaration that the will of Arunachala dated 30th December, 1960 is void, is a valid request made by him in the circumstances of the case.

3. It may not be necessary for us to consider the impact of the well-known Tagore's case (1872) I. A. 47 in the light of the observations of the Supreme Court in Raman Nadar v. S. Rasalamma : [1970]2SCR471 referred to by counsel for the appellants. It is no doubt true that, though the Supreme Court held that 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 they were not inclined to disturb the decision of the Judicial Committee in Tagore case, which had stood the test of time. We are not pursuing this line of thought, though learned Counsel for the appellants was inclined to take' us through the judgment of the Supreme Court as above, for the reason that we are here concerned with the Hindus in Pondicherry who adopted the Hindu Law as was practised in that territory. It is common ground that the French Courts functioning in Pondicherry used to refer difficult questions of Hindu Law to experts from time to time, so that the community in Pondicherry, particularly Hindus, may be benefited by such expert opinion. But this discussion need not detain us any longer, because the law which is applicable to both the plaintiff and the defendants in the instant case is the French Civil Code, which contains various articles to treat their subjects, one of which is the poser before us.

4. The main point to be considered therefore is the nature of the gift made by Arunachala on 27th April, 1936. Under Article 899, 'a disposition inter vivos or by will whereby the usufruct is given to one and the bare ownership to another is also good'. Under Article 1048 'a father or mother may give the whole or part of the properly, which the law permits to be freely disposed of, to one or more of their, children for life, subject to a proviso that it shall revert to such child's or children's child or children, but the property cannot be tied up further'. These two Articles are special provisions. Though a double gift, in the sense a gift in the first instance and a gift over to another, is generally prohibited, the question is whether a gift to an unborn child, like the son of Subramania, is a unborn child, like the son is the direct answer. Learned Counsel for the appellants fairly concedes that, if Article 1048 were to be applied to the facts of this case, then the will made by Arunachala would become inoperative. Though the parties are Hindus, they did not cease to be French citizens. Therefore the French Civil Code would apply to them, and, if we come to this conclusion, Article 1048 of the Code would apply to them as an exception to the general doctrine of ban on double gifts. If this were so, Subramania's son, namely, the plaintiff would be the ultimate remainderman, who is entitled to the suit property as donee under the gift deed of Arunachala, as the absolute owner thereof. The vesting of the property thus having become effective on the date when the plaintiff was born, namely, 29th October, 1941, and he having become the absolute owner of the suit properties by virtue of the earlier gift of Arunachala dated 27th April, 1936, it follows that Arunachala did not have any more right over the property for him to execute a will on 30th December, 1960.

5. So far as the judgment obtained by Arunachala on 5th August, 1939 is concerned, the attempt made by Arunachala to cancel the gift was on the hypothesis that Subramania did not pay back the gratitude to him. No doubt, Subramania remained ex parte, when Arunachala obtained the judgment on 5th August, 1939. But, as in our view under Article 1048 there is an exception in the matter of the creation of double gifts, and as it is operative in the instant case, the judgment having been rendered at a time when the plaintiff was not born it would not be binding on him, nor would it be effective so as to divest the vested interest in the plaintiff on the date when he was born on 29th October, 1941. It is not disputed by learned Counsel for the appellants in this case that the donor can secure a judgment and decree so as to cancel a gift, only in a case where the donee is guilty of ingratitude. But, as the plaintiff was not even born on the date when the judgment was obtained, it is inconceivable to think of any act of ingratitude by an unborn person. Even otherwise as under Article 1048 a gift over to a grandson is valid, and as it does not affect the rule of perpetuity either, as hinted in Article 1048, we are of the view that, whatever effect and consequences judgment of 5th August, 1939 might have on the gift in favour of Subramania, it would not in any way devitalise or affect the completed gift in favour of the son, namely, the plaintiff herein, for the reason that, on the date when the plaintiff was born, he secured an indefeasible right in the suit property by virtue of the double gift made pursuant to Article 1048.

6. For the reasons stated above, we agree with the conclusion of Maharajan, J. The Letters Patent Appeal fails and is accordingly dismissed. There will be no order as to costs.


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