T S SADAGOPAN Vs. T N K RAMANUJAM

JUDGEMENT

(1.) THIS thirty year old litigation was initiated by sundararaja Bagavadar, son of Nannayya Bagavadar, for a declaration that the donation of 17th February, 1949 made by the latter had absorbed in full the disposable quota and consequently the former was the owner of l/3rd share in the undivided properties, being the subject matter of donations dated 17th march, 1959 and 27th July, 1960 and the will dated 27th February, 1961 executed by the latter and for partition besides other reliefs. Even before the suit was taken up for trial, the plaintiff died and his three sons came on record as plaintiffs 2 to 4 to continue the litigation. Nannayya Bagavadar had two wives, sankara Ammal and Ranganayaki Ammal. Through his first wife, he had two daughters and three sons. The eldest son was the first plaintiff. The sons of the second son were impleaded as plaintiffs 5 to 9 and after the death of the 6th plaintiff, his legal representatives came on record as plaintiffs 10 to 12. The third son was the fifth defendant in the suit and on his death, his daughter was impleaded as 6th defendant. Defendants 1 and 2 are the daughter and son-in-law of Ranganayaki Ammal, the second wife of Nannayya Bagavadar. Defendants 3 and 4 are the daughters of Nannayya through his first wife Sankara ammal. Nannayya Bagavadar died on 5. 2. 1962.

(2.) IN the plaint as originally filed, the plaintiff claimed that as per Art. 913 of Code Civil, l/4th of the estate of Nannayya bagavadar was within his disposable quota and the remaining 3/4th fell within the reserve, which devolved on the three sons of Nannayya exclusively. The case of the plaintiff was that on 17. 2. 1949, a deed of donation was executed by nannayya giving properties to the three sons and reserving certain properties for himself. The properties given to the three sons absorbed the entire disposable quota of Nannayya and his deeds of donation executed later on 12th march, 1959 and 27th July, 1960 besides his will dated 27. 2. 1961 under which he gave properties to his daughters and grand-children were ineffective as against the rights of his three sons with the result that the plaintiff was entitled to get l/3rd share out of the reserve properties. The plaint proceeded on the footing that the law applicable to the parties was that found in Code Civil and reliance was placed on Arts. 913, 923, 925 and 815 thereof. Subsequently, the plaint was amended and it was alleged that the customary Hindu law which was prevailing in Pondicherry was applicable to the parties and the disposable quota of Nannayya was only l/8th share and that 7/8th of the estate formed the reserve.

(3.) PLAINTIFFS 2 to 4 have preferred this appeal. The first appellant, who was the second plaintiff, died and his son has come on record as fourth appellant whereas the second appellant, who was the third plaintiff, died and his legal representatives have come on record as appellants 5 to 8. It is argued vehemently by the appellants that the learned District judge has transgressed his limits by overlooking the scope of the remand order and considering a question which was no longer open for decision. It is contended that once this Court has categorically found that the parties are governed by the customary Hindu Law prevailing in Pondicherry and that Nannayya's disposable quota was l/8th share and the remaining 7/8th devolved on his sons, the court below had no jurisdiction to hold that the parties were governed by a family custom inducting the principles of Hindu Law prevalent in Madurai. It is also argued that the Division Bench directed the District Judge to decide only the question of estoppel and he ought to have held that the principle of estoppel is unknown to French Law and proceeded to grant a decree as prayed for by the plaintiffs. It is further contended that the recitals in the deed dated 17. 2. 1949 whereby the sons agreed that the father could disposed of the other properties as he liked, would in law amount to renunciation of the lather's right or an agreement to renounce the right which would accrue in future, and such renunciation or agreement is null and void in French Law. Reliance is placed on Arts. 791, 900, 920 and 1130 of the French Code Civil.