Crux:
SC interpreted the scope of distribution of property by an absolute owner.
Bench:
Justice A.K Sikri and Justice Ashok Bhushan
Appellant:
Theiry Santhanamal
Respondents:
Viswanathan & Others
Issue:
Whether an absolute owner can distribute his property to his sons through partition?
Facts
- The said suit property originally belonged to Mr. Mariasusai Mudaliar who was the grandfather of Respondent Nos. 3 to 5 and father of Oubegaranadin (since deceased). Mariasusai Mudaliar died intestate on October 23, 1953 leaving behind two sons viz. Oubegaranadin and Simon.
- Oubegaranadin (now deceased), claimed to be the absolute owner of the property in Puducherry. On 15-3-1971, a partition deed was executed between him and his minor sons, under which the property was allotted to the sons and they would take the allotted property absolutely.
- The said suit property originally belonged to Mr. Mariasusai Mudaliar who was grandfather of respondent nos. 3 to 5 and father of Oubegaranadin (since deceased).
- After 3 years, Oubegaranadin filed a suit against his minor sons (represented by their mother) contending that he was the absolute owner and the partition should be nullified. The decree dated 26-6-1974 was in favour of Oubegaranadin.
- Oubegaranadin sold a part of the property to R1 & R2. On the other hand, the sons on the basis of the partition deed, sold their shares of the suit property to the appellant.
- The sons filed a suit against Oubegaranadin, their mother, R1 & R2.
- They sought a decree for the declaration of title of suit property and other properties, and for the decree dated 24-6-1974 to be set aside, and the sale deeds by O to be set aside, along with the cancellation of sale deeds made to the appellant.
- The trial court held that the decree dated 24-6-1974 was valid and provided compensation to the sons. They appealed in the High Court.
- The learned Single Judge reversed the decision and held that the sons were the absolute owners of the property. R1 and R2 filed an LPA against the decision.
- The Division Bench then held that Oubegaranadin is the absolute owner and the property can’t be given to the sons by partition as per Hindu Customary Law.
- An appeal was filed in the Supreme Court by the appellant against the decision of the Division Bench.
Appellant’s contentions
- It was contended that the partition deed is valid in law. O had executed the deed himself.
- The decree dated 24-6-1974 is not binding and was not in accordance with Order 32 Rule 7 of the Civil Procedure Code.
- The decree in the suit was a consent decree and the leave of the court under Order 32 Rule 7(1A), inserted by the amendment in Tamil Nadu should have been obtained.
Respondent’s contentions
- Under the Hindu Customary Law in Puducherry applicable to Christians, there was no right of children to claim the property during the lifetime of their father. Therefore, there was no legal partition.
- The principal conflict of interest dealt in Order 32 Rule 7 of the Civil Procedure Code was that it won’t apply in Puducherry, particularly in cases where Hindu Customary law is applicable.
Relevant paragraphs ( paragraphs 10, 11, 28, 29, 30 of the original judgement )
- The High Court also noted that, while the Hindu Succession Act, 1956 was made applicable in Puducherry, Christians continued to be governed by customary law because the Hindu Succession Act did not apply to Christians due to Section 2(1)(c) of the Act, which stated that the Act only applied to Hindus. As a result, Christians in Puducherry were still controlled by customary law, i.e., the law of succession that was common in Puducherry at the time. As a result, the parties' rights had to be determined using Hindu customary law.
- Even if it is accepted that Oubegaranadin and his sons are subject to the Hindu Succession Act, the Act has no bearing on the transaction at hand. When a Hindu dies outside of India, the Hindu Succession Act oversees the succession of his or her property. In the structure of the aforementioned Act, the method in which his properties would pass on his successors is given out.
- The plaintiffs did not allege (and could not argue) that they acquired ownership of the land through Hindu Succession Act procedures. They claimed ownership of the property based on a Partition Deed dated March 15, 1971, which was signed by their father, Oubegaranadin, during his lifetime.
Final Order
The Supreme Court dismissed the appeal. It was held that a partition deed can be executed between the parties who are the joint owners of the property. In case the absolute owner of the property wants to give his property to his sons, he can only do so by will or by means of gift deed or donation.
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