Gnanasoundary @ Gnasoundaram v. Vaithianatha Sivach

2. Niggard and bereft of details, the case of the plaintiffsas stood exposited from the plaint could be portrayed thus:(i) The first plaintiff is the mother of the plaintiffs 2and 3 and the defendant. The plaintiffs are occupying the houseproperty bearing Door No.11, Netheeswaramkoilpathu and thedefendant is occupying with his family members, the westernportion of the same building bearing Municipal Door No.11/1. Thesaid house property and the garden appurtenant thereto comprisedin Ward C, Block 4 T.S.No.115 R.S.No.147/3pt, Cadastre No.300pt78Ca; Ward C Block 4, T.S.No.117, R.S.No.147/3pt, 147/1pt,Cadastre Nos.300pt and 301 pt 04A 19Ca and Ward C, Block 4,T.S.No.118, R.S.No.147/3pt, Cadastre No.300pt. 00A 21Ca atNetheeswaram, Koilpathu is the ancestral property of theplaintiffs and the defendant.(ii) The first plaintiff's husband Sri Pattu Gurukkal @Balasubramania Gurukkal also known as Pattappa, during his lifetime on 24.08.1981 as owner of the suit property mortgaged it infavour of S.Sri Mahamood Maricar S/o Haji MM.Syed Ahamed Maricarand his brother Sri M.S.Mohamed Hussain Saibu Maricar ofKaraikal. Subsequently, the said mortgage was discharged on10.09.1984. Thereafter, one other mortgage was created by thesame Pattu Gurukkal on 31.05.1986. Part of the mortgage debt wasdischarged by Pattu Gurukkal himself and the remaining debt wasdischarged by the defendant herein. The defendant even thoughhappened to be the eldest son in the family, had no regard forthe plaintiffs, who are entitled to 1/4 share each, totally to anextent of 3/4 share in the entire suit property and the defendantis entitled to 1/4 share in it. In fact, the defendant is inoccupation of one half of the property to the disadvantage of theplaintiffs. Despite incessant demands made by the plaintiffs,there is no response from the defendant for amicable settlement.Hence the suit.3. Per contra, remonstrating and refuting, gainsaying andimpugning the allegations/averments in the plaint, the defendantfiled the written statement on various averments, the gist andkernel of them would run thus:The suit property does not belong to the ancestors of theplaintiffs and the defendant, but it belongs to Sri SundaramurthyVinayagar Alayam, Nigheeswaram Koilpathu, Karaikal which wasfounded by the ancestors of Sami Mudaliar, Govindasamy Mudaliarand Sokalinga Mudaliar and they endowed large extents of landsto the temple. They also constructed houses for accommodationof the Gurukkal performing pooja in the said temple. In theolden days, house sites were not given Cadastre numbers, but theywere treated as Government lands. The suit house property wascame to be occupied by the ancestors of the plaintiffs and the https://hcservices.ecourts.gov.in/hcservices/ defendant as Archakas to the Sundaramurthy Vinayagar Alayam andthe ancestors of the plaintiffs were working in the temple asArchakas and in recognition of their service alone, they wereallowed to occupy the suit property. The right to occupy is onlyheritable and not partible or divisible and the parties to thesuit are in occupation of the suit property only in theircapacity as Archakas of the said temple. The temple is notpaying any remuneration to the Archakas, but in lieu of the same,the plaintiffs were permitted to occupy the suit property. Thesuit is bad for non impleadment of the Arulmighu SundaramurthyVinayagar Devasthanam, Koilpathu. The suit property is not ajoint family property capable of being partitioned. Thedefendant in his personal capacity purchased certain landsbelonging to the temple from one Govindaraju on 08.05.1976 andthe said property also is included in the suit schedule.Accordingly, he prayed for dismissal of the suit.4. The trial Court framed the relevant issues. Duringtrial, on the side of the plaintiff P.W.1 was examined andExs.A1 to A26 were marked. On the side of the respondents D.Ws.1and 2 were examined and no exhibit was marked.Mr.S.Shanmugasundram was examined as C.W.1. Ultimately, thetrial Court dismissed the suit.5. Being aggrieved by and dissatisfied with the dismissalof the original suit, the plaintiffs filed this appeal on variousgrounds, the warp and woof of them would run thus:The trial Court ignoring the fact that the suit propertyhappened to be the ancestral property of the plaintiffs dismissedthe suit and that too ignoring Exs.A1, A2, A11 to A22 and A24 toA26, which do demonstrate that the plaintiffs' ancestorsacquired absolute ownership right over it. The trial Courterroneously construed as if the non filing of the antecedenttitle deed was fatal to the case of the plaintiffs. The trialCourt failed to note that the parties to the suit in any eventacquired prescriptive title over it, whose patta standing in thename of Pattu Gurukkal supports the case of the plaintiffs thatit is the private property of the parties to the suit. Simplybecause the plaintiffs 2 and 3 and the defendant were not paidremuneration as Archakas, there is no presumption that the suitproperty under the occupation of the plaintiffs and the defendanthappened to be the temple property. The trial Court wrongly heldas if the suit was bad in non-joinder of the said Devasthanam asone of the defendants. The trial Court failed to note that thedefendant could not succeed by setting up title on the thirdparty. The learned District Judge erroneously place reliance onEx.X1 and X2, which is having no nexus with the suit property.The oral evidence was not properly appreciated by the lower https://hcservices.ecourts.gov.in/hcservices/ Court.Accordingly, they prayed for setting aside the judgment anddecree of the trial Court and for decreeing the suit as prayedfor.6. Heard both sides.7. The points for consideration are as to:1. Whether the suit is bad for non-joinder of ArulmighuSundaramurthy Vinayagar Devasthanam?2. Whether the suit properties are the ancestral propertiesof the plaintiffs and the defendant liable for partition? and3. Whether they is any infirmity in the judgment and decreeof the trial Court.Point Nos.1 and 2:8. Interlinked and interwoven, these two points are,discussion thereon warrants, they being taken together.Pithily and precisely, the arguments as put forth by thelearned counsel for the plaintiffs would be to the effect thatthe clinching authentic French documents having evidentiary valuehave been ignored by the lower Court without giving dueimportance to them, which evinced and evidenced that ancestors ofthe parties to the lis acquired title over the suit property andthe propositus of the plaintiffs and the defendant mortgaged thesuit property and raised money also and thereby, exercised rightof ownership over it; the said Arulmighu Sundaramurthy VinayagarTemple Devasthanam had no right over the suit property and it isnot a necessary party to the suit, as the judgment in the presentproceedings would be binding only on the parties to the suit andsimply because the defendant had set out title in the saidDevasthanam, the lower Court was not justified in dismissing thesuit.9. Tersely and succinctly, the epitome of the argument ofthe learned counsel for the defendant is to the effect that theparties to the suit are having only right of occupancy in lieu ofthe remuneration for performing Archaka duty in the said temple,which happens to be the owner of the suit property; the ancestorsof the parties to the lease were performing pooja as Archakas inthe said temple and in connection with that alone, they have beenoccupying the suit property and not as owners and that the suitis bad for non-joinder of the said Devasthanam as a necessaryparty, as without its presence the title of the suit propertycannot be adjudged. https://hcservices.ecourts.gov.in/hcservices/

10. Quintessentially the plea of the defendant is based onthe concept Jus tertii (The right of a third party). At thiscontext, my mind is reminiscent of the definition as founddepicted in Black's Dictionary:"A tenant,bailee, etc., who pleads that the titleis in some person other than his landlord, bailor, etc.,is said to set up a jus tertii"along with an excerpt from the famous Treatise, Salmond on thelaw of Torts, 17th Edition, which would run thus:"The mere de facto and wrongful possession of landis a valid title of right against all persons whocannot show a better title in themselves, and istherefore sufficient to support an action of trespassagainst such persons. Just a legal title to landwithout the possession of it is insufficient for thispurpose, so conversely the possession of it withoutlegal title is enough. In other words, no defendant inan action of trespass can plead the jus tertii - theright of possession outstanding in some third person -as against the fact of possession in the plaintiff. Itis otherwise, of course, if the defendant is himselfthe lawful owner or has done the act complained of bythe authority, precedent or subsequent, of him who isthus rightfully entitled.The same rule holds good in an action of ejectmentwhere the defendant has committed a trespass againstthe plaintiff. If, therefore, the plaintiff is inpossession the jus tertii will afford the defendant noanswer to the action. But usually the plaintiff in anaction of ejectment is not in possession: he reliesupon his right to possession, unaccompanied by actualpossession. In such a case, he must recover by thestrength of his own title, without any regard to theweakness of the defendant's. The result, therefore, isthat in an action of ejectment the jus tertii is inpractice a good defence. To the rule that it is inpractice a good defence in ejectment there are twoexceptions, or rather, applications of the generalprinciple that the jus tertii is no defence: (1)Whenever a person has acquired possession throughanother whose title is defective, he cannot set up thisdefect against that other or anyone claiming throughhim, although he may show that such title has sinceexpired or been parted with. This is an application ofthe principle of estoppel. The commonest instance isthat the lessee is estopped from denying his lessor'stitle. (2) Probably, if the defendant's possession is https://hcservices.ecourts.gov.in/hcservices/ wrongful as against the plaintiff, the plaintiff maysucceed though he cannot himself show a good title.For possession is prima facie evidence of title. Ifsuch prima facie evidence is not displaced by proof oftitle in a third person the plaintiff with priorpossession will recover, although this has beendoubted.(emphasis supplied)11. A bare perusal of the above excerpts would amplify theposition that the defendant by merely setting up the defence ofjus tertii cannot try to achieve success in the litigative battleby getting the suit of the plaintiffs dismissed, if theplaintiffs claim of title based on their prima facie right toobtain possession and enjoyment. It is also a common or gardenprinciple that the paramount title holder alone would have theultimate ownership over the property, nonetheless between theplaintiffs and the defendant, when the defendant sets up title ona third party as the paramount title holder, then it has to beseen as to whether the plaintiffs presently have a right ofpossession and enjoyment over the suit property. Here, the caseof the defendant is much the worse, for the reason that theplaintiffs do not want the defendant to be deprived of his rightto occupy the suit property. In fact, the plaintiffs' contentionis that the defendant also is one of the co-owners along with theplaintiffs and that the defendant is entitled to 1/4 share in it,whereas, the defendant even though had prevaricative standsnevertheless, ultimately he came forward with the case that thereal owner of the suit property is only the third party, namely,Arulmighu Sundaramurthy Vinayagar Devasthanam and that even he ishaving no right of ownership or permanent right of occupancy ortitle.12. Trite the proposition of law is that any judgment thatwould be rendered in a partition suit could not be termed as ajudgment in rem, but it is only a judgment in personam. Equallysettled the law is, that even if some of the co-sharers have notbeen added in the partition suit, they would not be bound by thepartition decree. When such is the clear position, I am at aloss to understand as to how the defendant who is arrayed as suchin the suit as one of the co-sharers along with the plaintiffscould be heard to plead strenuously for and on behalf of a thirdparty, namely Arulmighu Sundaramurthy Vinayagar Devasthanam andas such, the conduct of the defendant in pleading so, necessarilywarrants this Court to look askance at his bona fides in settingup such a plea of jus tertii. If at all the Devasthanam ishaving an independent right of its own, it is always open for itwithin the framework of law and limitation to initiateproceedings so as to assert its right. https://hcservices.ecourts.gov.in/hcservices/

13. At this context, the learned counsel for the defendantwould unconvincingly argue that the said Devasthanam might beunder the impression that inasmuch as the parties to the suitare having the right of occupancy in view of the remuneration fortheir performing pooja at the temple, consequently, it might nothave filed the suit and that the Devasthanam is being run by anaged person etc.14. I cannot countenance such an argument as it isabundantly clear that the plaintiffs are litigating by processingtheir claim ever since 1997 and incontrovertibly and indubitably,the said Devasthanam was aware of this litigation also, as whenthey sought correction in the patta, the authority concernedinformed the Devasthanam about the pendency of the suitO.S.No.48 of 1997 before the Additional District Judge, Karaikalas revealed by Ex.X3, an excerpt from it is extracted here underfor ready reference:"With reference to the petition cited above, I amto inform that one Shri Sarveshwaran Iyer & Two Othersof Netheeswaram, Kovilpathu of Karaikal have objectedto the processing of the change of Registry applicationin respect of the property under T.S.No.C/4/115, 117,118 of Kovilpathu Revenue Village, as a suit is inprogress under O.S.No.48/97 of the A.D.J. Court atKaraikal. In view of the above, action on yourapplication is kept in abeyance. Further action willbe taken after intimation of disposal of the suit."(emphasis supplied)15. Crystal clear it is, that the said Devasthanam was fullyaware of the pendency of this case and despite that, they havenot chosen to get themselves impleaded in this suit or filed anyseparate suit for establishing their title to it. It is notnecessary that whenever a suit is filed by the Devasthanam, itshould ask for eviction of the occupant, but on coming to knowof the fact that the occupant under their control is initiatingproceedings as against third parties ignoring the Devasthanam, ithas got the legal right to file a suit to establish its rightover it. When such is the reality, I am at a loss to understandas to how the defendant strenuously without any basis is tryingto protect the right of the said Devasthanam. It is thereforeglaringly clear that the defendant's plea is only to express hispersonal animosity or antipathy as against his relatives inseeing that they do not get amicable partition. Hence, in thewake of this ratiocination adhered to by me, I hold that thesuit is not bad for non-impleadment of Arulmighu SundaramurthyVinayagar Temple Devasthanam as one of the defendants. https://hcservices.ecourts.gov.in/hcservices/

16. The learned Senior Counsel for the plaintiffs byinviting the attention of this Court to Exs.A24, A25 and A26would develop his specious argument without it being embellishedby sophistry or casuistry or legerdemain that those Frenchdocuments would highlight that all the parties to the lease dealtwith the suit property as their own property and it was alsomortgaged as such. It is therefore just and necessary toscrutinise those documents in depth.17. Ex.A24 is the 'Notoriete', true copy of the deed of'Notoriete' (Minutes) No.997 of the 08th of December 1955 emergedat the request of Vengatessa Couroucal and others, which wouldunambiguously highlight that before the 'Notoriete', at theinstance of Pattu Gurukkal, the propositus of the parties to thelis and his close relative Vengadesa Gurukkal @ ChandrasekaraGurukkal, as many as five elders were caused to be present andthose elders declared and affirmed about Pattu Gurukal ancestryand their joint living. Ex.A25 is the French mortgage deed dated1st April 1959 executed by Balasubramania Gurukkal @ PattuGurukkal and his relative by describing it as under:"The tile-covered house building, well, trees andshrubs, the whole of it situated at CovilpattouNittiswarame, commune of Karaikal, West Street to thetemple of Sri Nittisvarassouvamy,to the north of the said street,to the east of the choultry of Srim SoundiramourtyVinayagarto the south of the garden of the temple of SriSoundiramourty Vinayagar andto the west of the house of Codassalaramayer;"in favour of one Sarasvady.Ex.A26 is one other 'French mortgagedeed emerged between the same parties relating to the suitproperty. The recitals in it are of paramount importance and itis extracted here under for ready reference:"The debtors have declared that the saidimmovable property had been the exclusive propertyof Mister SOUPPOUCOUROUCAL, of Covilpattous;That the said Souppoucouroucal died, leaving ashis heirs his two sons, MOUTTOUSSAMYCOUROUCAL andSINNAPPACOUROUCAL;That the latter two lived as a joint-family;That the said Mouttoussamycouroucaldied, leaving as his heirs his sonsSAMYCOUROUCAL, SADASSIVACOUROUCAL, SOUNDARACOUROUCAL https://hcservices.ecourts.gov.in/hcservices/ SANGARACOUROUCAL and SOUPPARAYACOUROUCALThat the said Sinnappacouroucal also died,leaving as his heir his son PANDJANADACOUROUCAL;That the said Soundaracouroucal also died,leaving as his heirs his sons SOUPRAMANIACOUROUCAL,VAITINADACOURCOUCAL and SAMINADACOUROUCAL;That the said Samycouroucal andSangaracouroucal died without issue;That the said Sadassivacouroucal andSoupparayacouroucal died celibate;That the That this the saidPandjanadacouroucal, Soupramaniacouroucal,Vaitinadacouroucal and Saminadacouroucal, had becomethe sole owners of the said immovable property;That these facts are recorded in the 'Acte deNotoriete (Translator's Note : In the days of theFrench Government, it was issued by a Notary-Publicand had the value and legal force of an heirshipCertificate), received by Maitre Louis GnanadicameDouressamy Dhouret, former Notary-Public at Karikal,on the Twenty-third of August Eighteen Hundredninety-two;That the said Saminadacouroucal died,leaving has his heir, his only sonDATCHANAMOURTYCOUROUCAL;That the said Soupramaniacouroucaldied, leaving to his rights his onlyson VENGATESSACOUROUCAL 'alias'SANDIRASSAGARACOUROUCAL, the first debtor in thepresent deed;That the said Vaitinadacouroucal 'alias'Mayouranadacouroucal died, leaving has his heir hisonly son SOUNDIRACOUROUCAL;That the said Datchanamourtycouroucal died,leaving has his heirs his two first cousins, thesaid VENGATESSACOUROUCAL and SOUNDIRACOUROUCAL;That the said Soundiracouroucal died, leavinghas his heir his only sonBALASOUPREMANIACOUROUCAL 'alias' PATTOUCOUROUCAL,the second debtor in the present deed;That these facts are recorded in an 'acte deNotoriete' (Translator's Note : Please refer above),put up by the undersigned Notary-Public, dated theEighth of December Nineteen Hundred and Fifty-five;That the said Pandajanadacouroucal diedwithout any issue more than fifty years ago, leavingas his only heirs the said SOUPREMANIACOUROUCAL,VAITINADACOUROUCAL and SAMINADACOUROUCAL;That the house which is hereby mortgaged is https://hcservices.ecourts.gov.in/hcservices/ found registered since the year nineteen hundred andtwenty-five till nineteen hundred thirty-three inthe name of the said Mayouranadacouroucal and sincethe year nineteen hundred and thirty-four till thisday in the name of the said Soundiracouroucal;Thus it appears from a certificate issued bythe Delegate of the Head of the Tax Office ofKarikal on the sixteenth of December nineteenhundred and fifty-five;And thus the debtors have become the presentand exclusive owners of the immovable propertymortgaged hereby;"(emphasis supplied)18. A bare perusal of the above excerpt from Ex.A26 wouldunambiguously and unequivocally demonstrate the fact that thevery 'Notoriete' while drafting the said deed had referred to theearlier 'Acte de Notoriete dated 23rd August 1892. At thisjuncture, I would like to highlight the importance of the Officeof the 'Notoriete' and his duties and responsibilities in brief:19. Under the French regime, Notaires are not mere notariesas understood in the rest of India under the Notaires Act. But,French Notaires are French law graduates having the power ofjustice of peace and their office is a sanctified and responsibleone, as French law attaches much importance to them and they wereresponsible for drafting the sale deeds in accordance with lawand they were expected to get themselves satisfied about therecitals recorded by them on the instigation of parties in thedeeds. With this background, it is just and necessary to analysethe French deeds here. Wherefore, it is obvious that therecitals in Ex.A26 cannot simply be slighted or discarded as mereunilateral versions of the executants of the mortgage deed. Theclauses found in Ex.A26 would exemplify that the ancestors ofPattu Gurukkal, the propositus of the plaintiffs here acquiredtitle over the suit property and they exercised right ofownership over it and on the strength of the same, Pattu Gurukkaland his relative mortgaged the suit property as evidenced byEx.A26. In these circumstances, it is really strange to hearfrom the defendant certain statements as though his own ancestorsare not the owners of the suit property and that some third partyis the owner.20. In this factual matrix, it is not too difficult for thisCourt to understand as to the falsity of the plea of thedefendant in setting up title in the third party. Ex.A1 is oneother mortgage deed executed by the propositus of the parties tothe suit, in favour of two persons, namely M.S.Mahamood Maricarand M.S.Mohamed Hussain Saibu Maricar wherein also, the recitals https://hcservices.ecourts.gov.in/hcservices/ would detail the ancestral nature of the suit property. Thedeposition of P.W.1(P3) would amply make the point clear that themortgagees under Ex.A1 made over the said mortgage in favour ofone M.S.Ummal Varah Mehanur Beevi and it was mortgaged by themortgagor on 11.09.1984 as evidenced by Ex.A10. He would alsonarrate and delineate in his deposition that the deceased PattuGurukkal paid land tax also as evidenced by Ex.A13 and also taxfor the three houses bearing Nos.11, 11/1 and 26/1 which are inthe suit properties as evidenced by Exs.A14 to A16. Exs.A17 andA18 would speak to the effect that Pattu Gurukkal availed loanfrom the Karaikal Municipality and constructed a latrine in thesuit property. Ex.A19 would convey the picture that during theyear 1985, Pattu Gurukkal effected repairs in the suit property,after obtaining permission from the Municipality concerned.Exs.A20 to A22 are the receipts pertaining to electricityconsumption availed by Pattu Gurukkal. Crystal clear, it is,from the evidence that it is not as though as contended by thelearned counsel for the defendant, without any basis or even anysemblance of evidence, the occupiers of the land as Archakas,approached the Court for partition.21. My above discussion based on the aforesaid clinchingdocuments would highlight that the plaintiffs approached theCourt for partition, based on those documents that the saidproperty is their ancestral property. On the defendant's side,absolutely there is no shred or exiguous extent of evidence todemonstrate his plea.22. The learned Senior Counsel for the plaintiffs wouldappositely and appropriately, invite the attention of this Courtto the defendant's version in Ex.A8, the reply lawyer's noticedated 23.01.1997 and thereby, exposed the defence of thedefendant which smacks falsehood. An excerpt from Ex.A8 isextracted here under for ready reference:"During the life time of my client's father, thepatta was stands in the name of Balasubramanian @Pattu Kurukal. Even though the patta stands in thename of Pattu Kurukal, the entire, lands are 5 Are 18Ca., was not belonging to Pattu Kurukal. One third ofproperty including the land and the house is belongingto my client. This has been acknowledged byBalasubramanian @ Pattu Kurukal on 21.03.1988 by meansof deed of Acknowledgment. In the deed itself it ismentioned by Balasubramanian @ Pattu Kurukal statingthat out of entire property one third of the propertyis belonging to my client. Apart from that the housesite which is situated on the backyard of the housewith an extent of 48-3/4 jathi adi east to west and https://hcservices.ecourts.gov.in/hcservices/ 18-1/2 jathi adi jathi adi from north to south isbelonging to my client as he has purchased the samefrom one Govindarasu S/o Pitchai Chettiar on 8.5.1976.Therefore my client is absolute owner and entitle tothe enjoy the 1/3 of the house and house site and theabove said 48-3/4 X 18-1/2 jathi adi which is situatedat the backyard of the house."(emphasis supplied)23. A bare perusal of the said version of D2 in Ex.A8 wouldtorpedo the stand of the defendant before this Court that thesaid Sundaramurthy Vinayagar Temple is the absolute owner of thesuit property. At this juncture, my mind is reminiscent of thefamous maximAllegans Contraria Non Est Audiendus - He is not to beheard who alleges things contradictory to each other and accordingly, the defendant cannot approbate and reprobate,blow hot and cold for the purpose of some how or other to get thesuit for partition dismissed. Absolutely, there is nothing alsoto substantiate his stand as found set out in Ex.A8. In fact,that exposes his antipathy and abomination as against theplaintiffs, so as to prevent them from getting the relief fromthe Court. It has to be pointed out here that the plaintiffshave not approached the Court merely based on patta, as it iswell known that patta alone would not constitute title, but itcan only be taken as a piece of evidence in support of the otherdocumentary or probable evidence adduced on the side of a party.Ex.X3, as highlighted supra would exemplify that the templeauthority petitioned the Specified Officer, Settlement BranchOffice, Karaikal so as to replace the name of Pattu Gurukkalconcerning the suit property with that of the name of the saidDevasthanam and that itself would indicate that during resurvey,Pattu Gurukkal's name alone was found incorporated. Ex.X4 is thepurported letter sent by the defendant to the Devasthanam for thepurpose of enabling him to have his Office of E.D Post Master ina part of the suit property and it is a self serving document onthe side of the defendant, which is having no authenticity of itsown. Similarly, Ex.X5 is one other unauthenticated documentpurported to have emerged between the defendant and the saidDevasthanam relating to the suit property. Ex.X6 is the Matriee,which means extract from the French revenue record, which ispurported to have emerged in the name of Sami Mudaliar,Govindasamy Mudaliar etc. and it is for those persons tosubstantiate their right in appropriate proceedings, if theychoose to initiate one. Ex.X15 is the one other unauthenticlease agreement which was allegedly entered into between the saidtemple and the defendant and Ex.X16 is a sale chit dated 8th https://hcservices.ecourts.gov.in/hcservices/ October 1976 which is purported to have been executed by oneGovinda Raju in favour of the defendant for a sum of Rs.1,000/-transferring certain immovable property which according to thedefendant, is alleged to be the part of the suit property. Inmy opinion, Ex.X16 is not even worth the paper on which it iswritten, as it clearly false foul of the provisions of theStamp Act as well Section 17 of the Registration Act as it isobvious that any sale of immovable property worth more thanRs.100/- requires registration as a sale deed. The otherexhibits are not in any way germane for the deciding the case athand as a mere look at those documents would be sufficient todiscord them.24. It is therefore crystal clear that the trial Courtwithout au fait with French law and ignoring the aforesaidimportant and significant features involved in this case, simplymisdirected itself as though the plaintiffs are trying to getpartition, quite against the interest of the Devasthanam. Inparagraph 28 of the lower Court judgment, the discussion withoutau courant with facts proceeds on the footing as though theTemple authorities were protesting as against the plaintiffs'claim, by taking steps against the transfer of patta etc. Tothe risk of repetition, without being tautologous, I would liketo highlight that my above discussion would indicate that merelybecause the said Devasthanam petitioned the parties for gettingcorrected the patta etc., would not in any way hamper or preventthe plaintiffs from proceeding with their suit for partition,which is based on their own ancient French documents. The suithas been filed in the year 1997, whereas, Ex.B24, Ex.B25 andEx.B26, which are ancient documents within the meaning of Section90 of the Indian Evidence Act emerged during 1959, so to say,even 30 years before the filing of the Suit. As such thosedocuments are not only authentic, but they are French documentshaving sanctity of their own and on their ancient documents. 25. In paragraph 34 of the judgment, the lower Court simplyrelied on Ex.X8, an entry in Ex.X7, which is having noauthenticity of its own and it is only a mere note book of recentorigin comparatively. The learned counsel for the defendant alsowould submit that the said Devasthanam is not a public temple,but it is only a private temple and in such a case, Ex.X8 – amere note book and the entry contained therein can never berelied on as clinching evidence in this case. The entire approachof the lower Court, as though the Devasthanam is a necessaryparty is erroneous. 26. The contention of the learned counsel for the defendantthat in lieu of the remuneration for performing pooja as Archakasin the said temple only, the parties to the suit are occupying https://hcservices.ecourts.gov.in/hcservices/ the suit property is not fortified and buttressed by anyminiscule or modicum of evidence. Ex.B1 is the copy of theplaint in one other case instituted by one other Devasthanam asagainst the said Arulmigu Sundaramurthy Vinayagar TempleDevasthanam and others relating to a property and as revealed byEx.B2, the judgment emerged thereunder, the said suit wasdismissed, which is having no probative force of its own fordeciding the case on hand. The lower Court has given weightagewrongly, relating to the dispute raised by the Devasthanam fromoutside the Court in deciding the case. The significance of theFrench documents also was not understood by the lower Court anddecided the case erroneously.27. In this view of the matter, the plaintiffs are entitledto seek partition. The said Pattu Gurukkal died leaving behindhis wife (P1) and three children, viz., P2, P3 and the defendant,as a resident of Union Territory of Pondicherry and the suitproperty is situated in the Union Territory of Pondicherry, theparties never invoked the theory of co-parcenary and in such acase, the plaintiffs and the defendant are entitled to 1/4 shareeach in the property, as the heirs of the deceased PattuGurukkal. Accordingly, both the points are decided.28. Point No.1 is decided the suit is not bad for non-joinder of the said Arulmighu Sundaramurthy Vinayagar Devasthanamand Point No.2 is decided to the effect that the suit propertyhappened to be the ancestral property which came in to the handsof the Pattu Gurukkal and accordingly, the plaintiffs and thedefendant are entitled to 1/4 share each in it.29. In view of the ratiocination adhered to in decidingpoint Nos.1 and 2 in favour of the plaintiffs as against the thedefendant, the appeal is allowed and the judgment and decree ofthe trial are set aside and the Original Suit is decreed andconsequently, the preliminary decree is passed as under:"The plaintiffs and the defendant are entitled to1/4 share each in the suit property. The plaintiffsare at liberty to file necessary application forobtaining final decree for getting divided the same bymetes and bounds through an Advocate Commissioner". https://hcservices.ecourts.gov.in/hcservices/ No costs. Consequently, connected miscellaneous petition isclosed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrargmsTo1.The District Judge, Pondicherry at Karaikal.2.The Section Officer,VR Section, High Court, Chennai-104.+1cc to Mr.S.Visvanathan, Advocate Sr 55665+1cc to Mr.T.P.Manoharan,Advocate Sr 56290GV (CO)km/3.11. A.S.No.190 of 1999