ARIAMUTHU AND ORS. Vs. LATCHOUMANAPOULLE

JUDGEMENT

(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 "neu 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 "neu propriete" (naked ownership) was -given would be regarded as an "appeal". 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 "neu 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.) 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.)