SIVAPARVATHI Vs. SIVAGAMI

JUDGEMENT

(1.) The Appeal suit on hand is filed against the judgment and decree passed in O.S.No.20 of 1994 dated 15th October 1996.

(2.) The Suit is for Partition. The plaintiff is the appellant in the appeal suit. The suit was filed to declare that the Will dated 06.08.1984, registered on 11.08.1994 by Sivaprahasam is null and void and in the alternative to declare that the Will is invalid to the extent of 7/8th portion of the suit properties and for passing a preliminary decree for partition of 1/5th share in the suit properties or in the alternative for passing a preliminary decree for partition of 7/40 share in favour of the plaintiff and separate possession of the same to the plaintiff after final decree.

(3.) The contention of the plaintiff before the Trial Court was that the properties described in the plaint originally belonged to Sivaprahasam, the father of the plaintiffs and defendants. He died on 31.10.1987 and his wife Kamalambal pre-deceased him. The said Sivaprahasam was a Hindu and he acquired the suit properties prior to the year 1963, when customary Hindu Law was in force at Pondicherry. However, some of the properties were ancestral properties. The first item of the suit properties was acquired by him prior to the year 1963, when Hindu Customary Law was in force at Pondicherry and the other items of properties specified in the schedule are all ancestral properties. After the introduction of the Hindu Succession Act, the plaintiff and the defendants 1 to 4 became class I heirs. The plaintiff, after the death of her father, approached the defendants 1 to 4 for amicable partition of the suit properties. But, it avoked no positive response. Hence, the plaintiff issued her lawyer's notice dated 15.05.1990, demanding partition. The defendants 2 to 4, after receiving the notice replied, informing her about the Will executed by the deceased Sivaprahasam. The plaintiff's father Sivaprahasam executed the Will on 6th August 1984 in favour of D2 and D4, bequeathing the suit properties in their favour. The recitals in the Will would show that the testator had no intention to bequeath any portion of the suit properties in favour of the plaintiff. Because she married a men of her choice namely one Veerappan, who belonged to a different caste. The said Kamalammal did not die out of the plaintiff's act but because of cancer. Under the Customary Hindu Law as applicable to Pondicherry, prior to the Hindu Succession Act, 1956, a Hindu father cannot dispose off more than 1/8th share. Section 4 of the Hindu Succession Act did not repeal the said customs. Section 30 of the Hindu Succession Act gives power for a Hindu and it does not prevent the application of the said custom envisaged under the Hindu Customary Law. The right of legitim for Hindu will continue to exist despite the introduction of the Hindu Succession Act. The plaint contains various precedents in support of the said contentions and per contra, the defendants in their written statements, denied the averments as well as the allegations. The defendants have stated that they are not residing in one and the same address. The defendants 2 and 3 resides in France and the defendant No.1 resides at Pondicherry and the defendant No.4 resides at Delhi. The Will executed by late Sivaprahasam, the father of the plaintiffs and the defendants is in order as per the Hindu Succession Act and the Indian Succession Act. It is false to claim by the plaintiff that the Will is void. The plaintiff is not justified in claiming the relief under the Hindu Succession Act, 1956, the French Code Civil and the Sanner's Hindu Customary Law. The Customary Hindu Law is not applicable in this case. Even under the Customary Hindu Law, only the son could have the right of legitim in respect of his father's property and the daughter cannot claim right of legitim in respect of her father's property. Sanner's Hindu Law on this point is very clear. There is no violation of public policy or human rights in executing the will by the deceased Sivaprahasam. There is no violation of Section 23 of the Indian Contract Act. Even though the plaintiff is earning Rs.3000/- per month, as teacher in the Alliance Franchise yet. She has chosen to file the suit informa properties. Thus, there is no cause of action and the suit is to be rejected.