ARIMUTHU AND ORS. Vs. LATCHOUMANPOULLE

JUDGEMENT

(1.) THIS Letters Patent Appeal is directed against the judgment of Maharajan, J., in Special Appeal No. 279 of 1969 (Civil) agreeing with the Court of First Instance, Karikal, and dismissing the appeal before him. The appellants before him were, the defendants in the action. One Arunachala had six sons, one of whom was Subramania, who died and who was not a party to this action. His son, is the plaintiff in the action. Defendants 1 to 3 are the sons of the fourth defendant, and defendants 4 to 8 are the sons of Arunachala. By a gift deed, dated 27th April, 1936, Arunachala bequeathed the usufruct over the suit property to Subramania and gave the remainder to any son born to Subramania thereafter to be enjoyed by him absolute. It appears that Subramania was adopted to a different family. For reasons not very clear, Arunachala filed a suit and sought for the cancellation of the gift deed as above and impleaded therein Subramania as a party defendant. Subramania remained ex parte, and Arunachala therefore got a decree on 5th August, 1939 in his favour whereunder the gift deed, according to the defendants, was cancelled in every perspective which had a bearing on it. After the judgment so rendered as above, the plaintiff was born to Subramania on 29th October, 1941. The defendants' case is that Arunachala, in and by a will dated 30th December, 1960, bequeathed the suit properties to them, apparently gaining his privilege to execute such a will by reason of the cancellation of the gift deed under the judgment and decree, dated 5th August, 1939. Arunachala died on 6th February, 1961, and a writ of summons was taken by the plaintiff in or about 1964 seeking for a declaration that, as remainderman under the gift deed of 27th April, 1936 he was entitled to the suit property, and that the will of Arunachala executed on 30th December, 1960, which would effectively defeat his rights secured by him under the gift deed, was void and unenforceable. The Court of first instance found, in the light of the law adopted by the Hindus residing in Pondicherry, that the cancellation of the gift deed by the judgment, dated 5th August, 1939 or the will of Arunachala dated 30th December, 1960 could not divest the vested interest secured by the plaintiff under the gift deed as above. Maharajan, J., agreed with the Court of first instance, and hence this Letters Patent Appeal.

(2.) LEARNED Counsel for the appellants -defendants, would say that Arunachala did have the power to cancel the gift in toto so as to divest the interest of the plaintiff which he is now projecting under the same, and that, Arunachala being fortified by the judgment and decree, dated 5th August, 1939, the will, dated 30th December, 1960 becomes operative and that in this respect the judgment of Maharajan, J., ought to be interfered with. He would refer to certain privileges of the citizens of Pondicherry, who adopted as their personal law, the law of the Hindus which was obtaining in the rest of this country, and would say that a gift to an unborn son would be ineffective and that therefore the gift by Arunachala to the plaintiff, who was not born on the date when the gift was made by him as also on the date when he secured the judgment on 5th August, 1939, would not vest in him any enforceable right to enable him to file the present action. Contending contra, learned Counsel for the respondent -plaintiff, would refer to some provisions of the French Civil Code, touching upon the subject -matter under discussion and would contend that the gift deed contemplates a double gift, which is permissible under the French law adopted by the Hindus and that such a double gift could only be revoked in the case of ingratitude of the donee, that, as the plaintiff was not born on the date when the judgment was secured on 5th August, 1939, the second gift to the plaintiff as the son Subramania under the gift dated 27th October, 1936 should be deemed to have remained untouched and that therefore the plaintiff's prayer for a declaration that the will of Arunachala dated 30th December, 1960 is void, is a valid request made by him in the circumstances of the case.

(3.) THE main point to be considered therefore is the nature of the gift made by Arunachala on 27th April, 1936. Under Article 899, "a disposition inter vivos or by will whereby the usufruct is given to one and the bare ownership to another is also good". Under Article 1048 "a father or mother may give the whole or part of the properly, which the law permits to be freely disposed of, to one or more of their, children for life, subject to a proviso that it shall revert to such child's or children's child or children, but the property cannot be tied up further". These two Articles are special provisions. Though a double gift, in the sense a gift in the first instance and a gift over to another, is generally prohibited, the question is whether a gift to an unborn child, like the son of Subramania, is a unborn child, like the son is the direct answer. Learned Counsel for the appellants fairly concedes that, if Article 1048 were to be applied to the facts of this case, then the will made by Arunachala would become inoperative. Though the parties are Hindus, they did not cease to be French citizens. Therefore the French Civil Code would apply to them, and, if we come to this conclusion, Article 1048 of the Code would apply to them as an exception to the general doctrine of ban on double gifts. If this were so, Subramania's son, namely, the plaintiff would be the ultimate remainderman, who is entitled to the suit property as donee under the gift deed of Arunachala, as the absolute owner thereof. The vesting of the property thus having become effective on the date when the plaintiff was born, namely, 29th October, 1941, and he having become the absolute owner of the suit properties by virtue of the earlier gift of Arunachala dated 27th April, 1936, it follows that Arunachala did not have any more right over the property for him to execute a will on 30th December, 1960.