LOUIS MARIE ANTOINE Vs. ALEXIS SANDANASAMY DIED

JUDGEMENT

(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 7-101971, 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.