ORDER
R. Banumathi, J.
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. Defendants 1 and 2 adopted the written statement filed by the third defendant. In their written statement, the defendants have set forth the defence denying the validity of the Will. As per the Will, the property has been first bequeathed in favour of Lakshmi Ammal's son-in-law Rajaram Sastri and thereafter, it has to go to Muthu @ Vaithinathan. Since Rajaram Sastri pre-deceased Lakshmi Ammal on 11.5.1974, the Will of Lakhsmi Ammal became ineffective as early as on 11.5.1974. The procedure contemplated under the Code Civil (French) for the execution and registration of Will were not followed and hence, the Will is not valid. The Will is not in compliance with the French Code and the entailment of the property for more than two generations has no effect in the eye of law. Under such circumstances, the plaintiff is not entitled for declaration and possession.
4. On the above pleadings, as many as nine issues have been framed. On the plaintiff's side, P.Ws. 1 and 2 were examined and Exs. A-1 to A-12 were marked. On behalf of the Defendants, D.Ws. 1 and 2 were examined and Exs. B-1 to B-7 were marked. Ex.X-1 was also marked. Upon consideration of the evidence, the trial Court answered the issue No. 1 finding that the impugned Will of Lakshmi Ammal is a valid document. The Defendant's contention that the Will giving disposition for more than two generations is in violation of Article 1048 of the Code Civil (French) was rejected by the trial Court. It was held that Ex.A-11 Will (Ex.A-1) is one legally drawn and valid and the alienation by Muthu @ Vaithinathan would not bind the plaintiff. The trial Court decreed the suit declining the claim of the defendants that the plaintiff is not the absolute owner of the suit property and directing the defendants 1 to 4 to handover possession of the suit property to the plaintiff. The Trial Court has directed the plaintiff to deposit the sale consideration of the sale deeds Exs. B-1 to B-3 to the credit of the suit to be payable to the Defendants 1 to 3.
5. The Additional District Judge, Pondicherry at Karaikal has reversed the judgment of the trial Court but accepted the finding of the trial Court that there is no illegality in the execution of the Will. However, the first Appellate Court found that the Will executed by Lakshmi Ammal entailing the property for more than two generations is prohibited under Article 1048 of the Code Civil (French). Pointing out that the Will was made public only on 14.8.1975 i.e., after the sale and held that the defendants 1 to 3, who are the purchasers from Muthu @ Vaithinathan are to be treated as bona fide purchasers for valid consideration. On the above findings, the judgment of the trial Court was reversed and the suit filed by the minor plaintiff was dismissed.
6. Aggrieved over the judgment in A.S. No. 47 of 1988 reversing the judgment of the trial Court, the plaintiff has preferred this appeal. The Second Appeal was admitted on the following Substantial Questions of law.
i. Having found that the property was dealt with by Will Ex.A-11 under customary usage of Hindus of Pondichery, whether the lower Appellate Court is right in applying Articles 1069 and 1070 in the French Code Civil ?
ii. Whether Articles 1069 and 1070 of Code Civil refer only to the life estate created under Article 1048 which is an exception to Article 896 of Code Civil prohibiting the creation of gifts ?
7. 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 Animal, 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.
8. Learned Senior Counsel Mr. Yamunan appearing for the respondent/defendants has drawn the attention of the Court to the written statement and submitted that the Registration aspect was well pleaded in the written statement. Submitting that as per Article 1070 Code Civil (French), even if the plaintiff is the minor, the defendants can plead that the entail has not been registered/made public. Submitting that the provisions of Articles 1069 and 1070 of Code Civil (French) have not been properly complied with, the learned counsel has contended that the first Appellate Court has rightly held that the defendants are bona fide purchasers for value and that their right is to be protected.
9. It is further submitted that the French Code attaches priority to registration and that the registration on 14.8.1975 i.e., two months after the sale is only with an intention to defraud the bona fide purchasers which has been rightly appreciated by the first Appellate Court. The learned counsel has submitted that the judgment of the first Appellate Court is well merited and there is no substantial error warranting interference.
10. For proper appreciation of the contentious points, we may briefly refer to common grounds raised in the grounds of appeal. Ex.A-1 is the Registration copy of the Will. Ex.A-11 is the original Will produced before the trial Court by the Registrar, Karaikkal on being summoned. The Transfer of Property Act came to be extended to the Territory of Pondichery on 9.1.1969. At that time of execution of Ex.A-1, Will on 4.11.1978, French Law was in vogue. The execution of the Will is subject to the procedure contemplated under the Code Civil (French). To prove the genuineness and execution of the Will one of the attesting witnesses P.W.2-Ayyasamy Iyer has been examined.
11. From the recitals in Ex.A-1, it is seen that the Will was drawn in the year 1968 by the then Notaire in the presence of two witnesses. The Will must be signed by the Testator. If he is not in a position to sign, Article 973 of Code Civil (French) requires that Notaire drawing such Will to make a specific mention as to why the testator could not sign the Will. Article 973 of Code Civil (French) reads:
'The Will must be signed by the testator, if he says he cannot write; then the document must distinctly recite that he said he could not write, or the reason why he is unable to sign'.
Accordingly, in the impugned Will, the Notaire has specifically stated that the Testatrix Lakshmi Ammal has not known to affix her signature. Referring to Articles 971 and 973 of Code Civil (French), the trial Court has held that Ex.A-1-Will dated 4.11.1968 is one drawn legally and is a valid document. The contention attacking Ex.A-1 on the ground that it does not contain the signature of Lakshmi Ammal was negatived. The Trial Court has referred to Article 973 of Code Civil (French) and held that when Lakshmi Ammal had expressed her inability to put her signature and the same has been properly incorporated by the Notaire complying the requirements of Article 973 of Code Civil (French).
12. The trial Court has held that Ex.A-1-Will is one legally drawn and is a valid document. The finding of the trial Court that the Will was executed by Lakshmi Ammal was accepted by the lower Appellate Court also. In para 10 of its judgment, the lower Appellate Court has dealt with this aspect referring to Article 971 of Code Civil (French). As per Article 971 of Code Civil (French), four attesting witnesses were required if a Will was executed in the presence of one Notaire. French Code Civil was subsequently amended on 18.12.1950. As per the amendment to Article 971 of Code Civil (French), number of attesting witnesses were restricted to two witnesses only, instead of four witnesses. Pointing out that, Ex.A-1-Will was executed in the presence of one Notaire attested by two witnesses, the lower Appellate Court found that there is no illegality in the execution of the Will. That concurrent findings of Course below on this aspect is to be endorsed with.
13. The lower Appellate Court reversed the judgment of the trial Court mainly on the following:
* The Testator Lakshmi Ammal propounded to tie the property for more than two generations and to vest the property with the third generation namely, the minor Plaintiff which is contrary to Article 900 of Code Civil (French).
* As per Art. 1069 of Code Civil (French), the Will must be made public by the life estate holder. But the Will was made public only on 14.8.1975 after the Sale Deeds. The Defendants 1 to 3 are the bonafide purchasers for valid consideration without notice of the Will and their right is not affected in view of the Will not being made public.
14. The correctness of the above finding is seriously attacked contending that Rajaram Sastri had pre-deceased Lakshmi Ammal. Hence, it is contended that on the date of death of Lakshmi Ammal (i.e., on 14.2.1975), Muthu @ Vaithinathan straight taken the property and there is no question of tying the property for more than three generations and that there is no question of contravention of Article 1048 of Code Civil (French). under Article 1048 of French Code Civil, if a testator executed a Will as per which his son or sons to enjoy the property for their life time and then the next generation to enjoy the property for their life time and then vesting to the next generation is absolutely prohibited. Article 1048 of Code Civil (French) reads:
'A father or mother may give the whole or part of the property, which the law permits 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.'
Therefore, a Testator cannot bequeath a property thereby entailing the property for more than three generations.
15. In this case, Lakshmi Ammal had executed Ex.A-1 Will entailing the property for more than three generations and vesting the property with the third generation is clear from the following recitals.
Thus, it is clear that Lakshmi Ammal has entailed the property under the Will for more than three generations and the same is prohibited under Article 1046 of Code Civil (French). In this case, Ex.A-1-Will was against the provisions laid down under Article 1048 of Code Civil (French). Hence, the lower Appellate Court has rightly found that Ex.A-1 which contravenes Article 1048 of Code Civil and is against law. There is no reason to take a different view from the said finding of the lower Appellate Court.
16. The Crucial aspect on which the lower Appellate Court differed is regarding the publicity of the Will and that the provisions of French Code Civil has not been followed. Under Article 1069 of Code Civil (French), it is mandatory that the Will must be made public. Article 1069 of Code Civil (French) reads:
'Entails, whether by donation inter vivos or by Will, must be made public by the life tenant or by the guardian appointed to see that the entail is given effect to as follows, viz., as to immovables, publicity is given to the fact that they are entailed by transcribing the instrument of entail in the register of the mortgage office of the place in which they are situated. As to sums of money secured by way of mortgage which are settled, publicity is given to the fact of the settlement by registering the entail as a charge on the property so mortgaged.'
Article 1070 of Code Civil (French) reads:
'Creditors and third parties may plead that the entail has not been registered, even if the plaintiffs are minors and interdicted persons. The minors or interdicted persons have a right of action against the life tenant and against the guardian appointed to see that effect is given to the entail, but have no remedy against the creditors or third parties, even though the life tenant and guardian are insolvent.'
Thus, even if the plaintiff is the minor, the third party/Defendants have the right to action against the life tenant and against the guardian appointed to see that the effect is given to the entail. Hence, if due publicity of registering the Will was not made public by the life estate holder, the minor or the holder of vested interest has a right of action against the life estate holder but not against the third parties.
17. Article 1071 of Code Civil (French) is very important. The fact that entails is not registered cannot be got over contending that the third party or creditor might have known the entail otherwise than by the entail being registered. Hence, it is not open to the Plaintiff to contend that the Defendants could have otherwise known about the entail in Ex.A-1-Will.
Certain dates are relevant to be noted:
Date of Will 4.11.1968Testator Lakshmi Animal Died on 14.2.1975Muthu @ Vaithinathan Died on 26.11.1975
The Will was made public on 14.8.1975 after the sale deeds. If the Will was not made public or the Will was not registered before the Registering Authority, it will not bind the third parties.
18. Submitting the importance of registration and the document being made public, the learned counsel for the Respondents has drawn the attention of the Court to the following passage in Amos and Waltons, Introduction to French Law, III Edition at Page 106.
'Registration of title signifies, in substance, a system under which there is recorded in a public register, against every unit of property, the name of the owner or the person having a right in rem. The correspondence of titles with the register is guaranteed by the defining authority of the law - he and he alone has title, adversus omnes, whose name is on the register.
Registration of deeds is the system under which the public register records only conveyances, and makes no pretence of guaranteeing the title of the grantor. The latter is at present the system of French Law.'
French Code Civil thus lays emphasis on registration and the documents being made public. Such importance is attached to the registration and documents being made public since if the documents are not made public, it might prove a trap for a purchaser or mortgagee. As per Article 1072 of Code Civil (French), the plaintiff, who claiming as legatee under Ex.A-1-Will, cannot set up the right against the Defendants, who are bona fide purchasers, When the provisions of French Code Civil has not been complied with, the Defendants, who are the bona fide purchasers for value are to be protected.
19. Much contention has been advanced on the ground that the Will not being made public was not raised in the written statement. It is submitted that in the absence of pleadings, the lower Appellate Court erred in reversing the reasoned findings of the trial Court. This contention that there was no pleading regarding the Will not being made public has no basis. By perusal of the Written statement, it is seen that this point has been raised in para (7) of the written statement. In para (7) of the written statement, the Defendants have pleaded that ... 'the procedure contemplated under French Law for the execution and registration of Will is not at all followed by the Executrix or her successors or her grand son and therefore the Will is not valid and is not binding'. Since this aspect was not properly appreciated by the trial Court, in the memorandum of Appeal grounds in A.S. No. 47 of 1988, again the same point was urged. In para-11 of the memorandum of Appeal grounds, the contention has been raised that... 'the minor plaintiff has not established that the Will has been properly executed and registered in accordance with the French position of law and procedure code Civil'. When such definite contention has been raised regarding the non-compliance of the provisions relating to registration and Will not being made public, it is not open to the Plaintiff to contend that the said pleading was not set forth.
20. On proper appreciation of the evidence and materials on record, the learned Additional District Judge, Pondicherry at Karaikal has reversed the finding of the trial Court. The reasonings and the findings of the lower Appellate Court are well merited. There is no erroneous approach or serious and substantial error warranting interference. Hence, this appeal has no merits and is bound to fail.
21. This Second Appeal is dismissed. The judgment and decree of the Additional District Judge, Pondicherry at Karaikal in A.S. No. 47 of 1988 dated 1.9.1989 arising out of the judgment and decree dated 19.7.1988 in O.S. No. 36 of 1985 on the file of the Principal District Munsif, Karaikal is confirmed. In the circumstances of the case, there is no order as to costs.