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2018 (1) TMI 1577 - SC - Indian LawsPartition of suit property - whether partition deed dated March 15, 1971 is valid in law, inasmuch as, this issue will have bearing on the remaining case? - HELD THAT:- It would be pertinent to point out that even after holding that during the lifetime of their father sons cannot claim partition of the properties as per the said customary Hindu Law, the High Court has accepted the fact that the father is still enabled to distribute and partition his property between the children and the descendants. As per the High Court, this can be done either by instruments inter vivos or by Will and further that the settlement or Will must comply with the formalities, conditions and rules laid down for donations inter vivos and Wills and the partitions made by donation inter vivos must include only those properties which the donor then possesses. In respect of this assertion, the High Court has referred to Article Nos. 1075 and 1076 of the French Code. The High Court has observed that the father can distribute or partition the property between the children and the descendants only by gift or family settlement between the parties themselves. According to it, the plaintiffs had not set up their claim on that basis as they did not rely on Articles 1075, 1076 or 1077 of the French Code in respect of their claim. Hindu Succession Act would not govern, even if it has been enforced in the territory of Puducherry in the year 1963. The High Court has dealt with this aspect in detail in its judgment, as pointed out above, and has come to the conclusion that insofar as Christians are concerned, old Customary Law continue to apply. No attempt was made by the learned senior counsel for the appellant to dislodge the same. Even otherwise, it is the Customary Hindu Law which has been applied to decide the case which approach is perfectly justified. Therefore, the main issue is as to whether such a partition deed could be executed by Oubegaranadin in respect of the properties of which he was the absolute owner. It is to be borne in mind that the properties in question had fallen in the share of Oubegaranadin on the basis of partition deed dated March 23, 1959 between Oubegaranadin and his brothers. As on that date, French Code governed the field as per which customary Hindu Law applies. It is not disputed that Oubegaranadin had become the absolute owner of the property in question - The High Court was, therefore, right in observing that such a partition deed has to be construed either a gift deed or family settlement. However, the claim of the plaintiffs was not on that basis. It was not stated anywhere as to whether necessary formalities, conditions or rules laid down for donation inter vivos or gift so as to enforce said document were complied with in the absence of any pleadings, obviously no evidence was produced to this effect. Appeal dismissed - decided against appellant.
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