MINOR ANANTHARAMAN Vs. SELLAM

JUDGEMENT

(1.) THIS appeal is preferred against the judgment of Additional District Judge, Pondichery at Karaikal in A.S. No. 47 of 1988 dated 1.9.1989 reversing the judgment and decree dated 19.7.1988 in O.S. No. 36 of 1985 on the file of the Principal District Munsif, Karaikal. Unsuccessful plaintiff is the Appellant.

(2.) CASE of the plaintiff is that the suit property in Survey No. 192/5, Patta No. 384 to an extent of 19 acres 5 ca in Soorakudi Village, originally belonged to one Periyanayagathammal, w/o Muthusamy Sasthirigal. Periyanayagathammal purchased the suit property and other properties through a Notarial Deed dated 16.9.1897. She was in possession and enjoyment of the suit property till her death on 16.1.1935. After her death, her only heir Lakshmi Ammal became the owner of the property. On 4.11.1968, the said Lakshmi Ammal in a sound disposing state of mind executed her last Will and Testament before the Notaire Sundaramurthy. On the extension of Indian Registration Act to Pondicherry, the said Will was deposited with the Registrar at Karaikal by the said Notaire. Through the Will, Lakhsmi Ammal bequeathed her properties to the minor plaintiff and she had given the life estate to Rajaram Sastri, who pre deceased Lakshmi Ammal. After the life time of Rajaram Sastri, life estate was given to Muthu @ Vaithinathan, who is the father of the plaintiff. Muthu @ Vaithinathan also had no title to validly convey the property. While so, he sold some portions of the suit property under the Sale Deeds dated 6.5.1975 and 26.7.1975 to the defendants 1 and 2 and to the third defendant respectively. Since Muthu @ Vaithinathan was only a life estate holder, he had no valid right to convey the property. Hence, the minor plaintiff has sent Ex.A-4 notice to the defendants. Defendants have sent a reply notice containing false allegations. Hence, the plaintiff has filed the suit for declaration of his right and for possession.

(3.) SUBMITTING that the requirement under the law has been properly complied with, the learned counsel for the appellant has submitted that the absolute right given to minor plaintiff is well within the ambit of Code Civil (French). SUBMITTING that the finding of the trial Court has been reversed on improper reasoning, the learned counsel has assailed the judgment of the first Appellate Court. On the finding that the Will was made public only after the sale, the learned counsel has submitted that such plea regarding the publicity of the Will was not at all raised in the pleadings. While so, the Appellate Court erred in placing reliance upon the same. It is submitted that when that point was not at all raised in the pleadings, the first Appellate Court erred in finding that the purchase made by the Defendants has been without notice of the Will and that the Defendants 1 to 3 are to be treated as bona fide purchasers cannot be sustained. Pointing out that Rajaram Sastri has died even before the death of Testator Lakshmi Ammal, the learned counsel has submitted that the question of entailing the property for more than three generations and contravention of Article 1048 does not arise.