Madras High Court
Miron Lada vs Abner Alexandre Sambeth on 29 July, 2026
Author: N. Sathish Kumar
Bench: N. Sathish Kumar
A.S.No.551 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 15.07.2026
Delivered on : 29.07.2026
CORAM :
THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
AND
THE HONOURABLE MR. JUSTICE M. JOTHIRAMAN
A.S.No.551 of 2019
and
C.M.P.No.18060 of 2026
Miron Lada ... Appellant
Vs.
1.Abner Alexandre Sambeth
2.The District Registrar,
Registration Department,
Sakthi Nagar, Saram,
Pondicherry – 13.
2.The Oulgaret Sub Registrar,
Office of the Sub Registration Department,
Jawahar Nagar, Boomianpet,
Pondicherry – 5. ... Respondents
Prayer : Appeal Suit filed under Section 96 r/w. Order XI Rule 1 of the
Code of Civil Procedure against the judgment and decree passed by the
Family Court, Pondicherry, in O.S.No.21 of 2012, dated 09.02.2019.
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For Appellant : Mr.V.Raghavachari
Senior Counsel
for Mrs.V.Srimathi
For R1 : Mr.R.Thiagarajan
For R2 and R3 : No appearance
JUDGMENT
N. SATHISH KUMAR, J.
Challenging the decree and judgment of the learned Judge, Family
Court, Pondicherry, in O.S.No.21 of 2012, dated 09.02.2019, granting a
preliminary decree allotting half share in the suit properties in Item Nos.1 to
5 to the plaintiff, the 1st defendant in the suit has filed the above Appeal.
2.For the sake of convenience, the parties are referred to as per their
rank before the trial Court.
3.The plaintiff and the 1st defendant were husband and wife. Their
marriage was solemnised on 20.04.1987. The marriage was registered as per
the French Code Civil. It is the case of the plaintiff that he is a Renoncant
and the 1st defendant is a French National, thereby, both of them are
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governed by French Law, i.e., French Code Civil. From the wedlock, three
children were born to them, viz., Abner Stella on 28.11.1987, Abner Jenitha
on 09.12.1991 and Abner Sebastian Oscar on 11.10.1997 respectively. It is
the case of the plaintiff that suit properties (Item Nos. 1 & 2) were acquired
by the plaintiff in the name of the 1 st defendant due to love and affection as
early as in the year 1992. The 1 st defendant is only a name lender to the
plaintiff for the purchase of the suit properties and nothing more than that.
The 1st defendant and her mother are hailing from poor family and they had
no financial capacity to buy the suit schedule properties. The Items 1 and 2
of the suit properties were purchased through the Power of Attorney Deeds
obtained in the name of the 1st defendant. The 1st defendant, as a Power
Agent, executed two separate sale deeds in favour of her mother. Later, the
1st defendant’s mother settled those properties by virtue of two settlement
deeds in favour of the 1st defendant. In a nutshell, it is the case of the
plaintiff that Items 1 and 2 of the suit properties are purchased by the
plaintiff.
4.Similarly, it is the case of the plaintiff that the other items of the suit
schedule were also purchased by the plaintiff in the name of the 1 st
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defendant. In Item Nos.1 and 2, the plaintiff had designed a plan and
constructed a big bungalow by depositing the title deeds while availing the
loans from the LIC Housing Finance Limited as well as UCO Bank,
Puducherry. The plaintiff has repaid the entire loan amount. Their family
life was very cordial till 2005, however, difference of opinion arose in the
year 2006, as the 1st defendant maintained illegal relationship with the car
driver which resulted in filing of a criminal complaint. The 1 st defendant has
also filed a complaint under the Protection of Women from Domestic
Violence Act, and later, the 1st defendant filed an application in
M.O.P.No.123 of 2007 under Articles 233 and 242 of French Code Civil r/w.
Section 7 of the Family Courts Act and had obtained divorce against the
plaintiff. Similarly, she had also filed a suit in O.S.No.13 of 2008 before the
District Court, Pondicherry, seeking partition in respect of the property sold
by the plaintiff. Later, that suit was dismissed. It is the contention of the
plaintiff that he is a Renoncant and the 1st defendant is a French National and
therefore, as per French Law, in the properties acquired by either husband or
wife during the marriage or after the marriage, both the husband and wife
have equal rights and hence, he is entitled to half share in the entire suit
properties. Hence, the husband has filed the present suit for partition.
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5.The 1st defendant filed a written statement stating that the plaintiff is
not a Renoncant and he is not governed by the French Law. It is the stand of
the 1st defendant that the Item Nos.1 and 2 of the suit properties were settled
by her mother in her favour. Though the plaintiff and the 1 st defendant
jointly availed loan, it is denied that the plaintiff had repaid the loan amount.
All the other suit items were also purchased by the 1 st defendant by selling
her jewels and also the funds provided by her mother due to love and
affection. It is her contention that her brothers are well settled in France.
The 1st defendant was subjected to cruelty by the plaintiff and he also had
illicit relationship with other woman and was often beating her and causing
mental torture to her. In order to safeguard the life of the 1 st defendant and
her children, her mother and brothers have helped the 1 st defendant
monetarily. Thereby, the Item Nos.3 to 5 of the suit properties were
purchased by the 1st defendant out of the funds provided to her by her
mother and brothers out of love and affection. The 1 st defendant had earlier
filed M.O.P.No.18 of 1999 for divorce, as she was unable to bear the
atrocities committed by the plaintiff and the wayward life lead by him.
Later, the said M.O.P. was withdrawn on the assurance given by the plaintiff
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that he will not illtreat her any further. But still, the plaintiff continued his
attitude and hence, an application in M.O.P.No.123 of 2007 was filed for
divorce before the Family Court at Puducherry, on the ground of adultery
and cruelty. The Family Court, Puducherry, had granted divorce on the
ground of cruelty by its judgment and decree dated 06.12.2012. Hence, in
sum and substance, it is the contention of the 1 st defendant/wife that the
entire suit properties are her individual properties and hence, the plaintiff
cannot claim half share in her individual properties and thus, resisted the suit
claim for partition.
6.Based on the above pleadings, the trial Court framed the following
issues :
i. Whether the plaintiff is a Renoncant governed by French Code
Civil ?
ii. Whether the suit properties are purchased by plaintiff out of his
own funds in the name of the 1st defendant ?
iii. Whether the plaintiff has right to claim share in the suit
properties ?
iv. Whether the plaintiff is entitled for partition and separate
possession of the suit properties ?
v. Whether the plaintiff is entitled for the relief of permanent
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injunction as prayed for ?
vi. To what other relief the plaintiff is entitled to ?
7.On the side of the plaintiff, P.W.1 to P.W.6 were examined and
Exs.A1 to A94 were marked. On the side of the defendants, D.W.1 was
examined and Exs.B1 to B38 were marked.
8.Based on the evidence and materials on record, the trial Court, by its
judgment and decree dated 09.02.2019, decreed the suit and granted a
preliminary decree allotting half share in the suit properties to the
plaintiff/husband.
9.Challenging the judgment and decree of the trial Court, the 1 st
defendant/wife has filed the above Appeal.
10.Mr.V.Raghavachari, learned Senior Counsel appearing for the
appellant/1st defendant/wife, would submit that the trial Court is not proper
in decreeing the suit. Admittedly, Item Nos.1 and 2 of the suit properties
were purchased in the name of the plaintiff’s mother-in-law. Such being the
position, the plaintiff cannot take a plea of Benami as against his mother-in-
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law. Further, it is his contention that the mother-in-law has settled the
property in favour of her daughter, i.e., the 1 st defendant. Therefore, it is the
separate property of the 1st defendant. Hence, at no stretch of imagination,
such properties can be treated as community properties as per French Law to
claim equal share. Further, the other items of the suit properties have also
been purchased by the 1st defendant out of the funds given by her mother and
brothers who are settled in France. Therefore, the suit Item Nos.3 to 5 also
fall outside the scope of community property under French Law for claiming
division. It is his further contention that Exs.B28 to B30 clearly establish
the clinching fact that the contribution has been given by the brothers of the
1st defendant from foreign countries for the purchase of the suit properties.
Therefore, the contention of the plaintiff that he has purchased the properties
in the name of the wife, is not substantiated. It is his further contention that,
merely because the LIC Housing loan has been obtained by both the
husband and wife during the subsistence of the marriage, it cannot be
concluded that the entire properties belong to the community. He would
further submit that the plaintiff is not a Renoncant to claim partition under
the French Code Civil. In the written statement filed by him in another suit
for partition filed by the wife, he has denied his status as Renoncant. It is his
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contention that, merely because the wife had filed divorce petition and
obtained divorce under the French Law as against the plaintiff, the same is
not a determining factor to decide the status of the parties. The plaintiff has
not even established his status as Renoncant. The documents relied upon by
the plaintiff will not prove his status. Once the plaintiff has not established
the status as Renoncant, he cannot claim any benefit under the French Law.
The trial Court has failed to properly appreciate the evidence. It is his
further contention that the Benami Transactions (Prohibition) Act, 1988, is
itself an Act in rem, which applies to Pondicherry. Therefore, the plaintiff
cannot set up a plea of Benami and no claim is permissible as Benami as per
Section 4 of the said Act. Therefore, he would submit that the trial Court is
not correct in granting a decree in favour of the plaintiff.
11.Whereas, Mr.R.Thiagarajan, learned counsel appearing for the 1st
respondent/plaintiff/husband, would submit that the appellant/1st defendant
herself has filed a divorce petition as against the plaintiff/husband under
French Law, wherein, she has clearly stated that her husband is a Renoncant.
Having pleaded that her husband is a Renoncant and having taken advantage
of the French Law and obtained divorce, now, the 1 st defendant is totally
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st
estopped from taking a contrary stand. That apart, the 1 defendant/wife has
also filed a suit against her husband to claim half share in one of the
properties dealt with by her husband, wherein also, she has clearly admitted
that her husband is a Renoncant. Later, the suit came to be dismissed after
receipt of Rs.10 Lakhs from the purchaser. Therefore, the very conduct of
the parties clearly shows that the parties are governed by French Law. Now,
when the husband sought partition in respect of the properties standing in the
name of the wife by claiming himself as a Renoncant, a different stand has
been taken by the wife as if her husband is not a Renoncant. Therefore, it is
his contention that the 1st defendant is totally estopped from taking a
different stand. It is further submitted that Exs.A56 to A89 filed by the
plaintiff clearly establish the fact that he is a Renoncant. According to the
learned counsel, the very suit properties were purchased by the plaintiff out
of his own income in the name of his wife. The evidence of P.W.2 to P.W6
would amply prove the above fact. It is his further contention that the 1 st
defendant (D.W.1) has no source of income to purchase the properties in her
own name. All these facts clearly show that the plaintiff is certainly entitled
to half share as declared by the trial Court. Hence, it is his contention that
the judgment and decree of the trial Court does not require any interference.
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12.Based on the submissions made by the learned counsel on either
side, the points that arise for consideration in this Appeal are as follows :
1. Whether the 1st respondent/plaintiff is not a Renoncant as per
French Law to claim benefit under the French Code Civil ?
2. Whether the Item Nos.1 and 2 of the suit properties were
purchased by the 1st respondent/plaintiff himself in the name of
his wife ? If so, whether he can base his claim on such
properties purchased in Benami ?
3. Whether the Item Nos.1 and 2 of the suit properties are
separate properties of the appellant, namely, the 1 st
defendant/wife ?
4. Whether the Item Nos.3 to 5 of the suit properties belong to the
assets of the community property ?
5. To what other relief, the parties are entitled to ?
13.An application has been taken out by the appellant/wife in
C.M.P.No.18060 of 2026 to receive an additional document, viz., certified
copy of the written statement filed by the plaintiff in his capacity as
defendant in O.S.No.13 of 2008, as additional evidence in the above Appeal.
It is the contention of the petitioner/appellant that the plaintiff had
suppressed the written statement filed by him in the another suit in
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O.S.No.13 of 2008 filed by the wife, wherein, he denied his status as
Renoncant. It is her further contention that the trial Court, in Para No.9 of
the impugned judgment, opined that there was no document filed by the 1 st
defendant that neither the plaintiff nor the 1st defendant or her ancestors were
not Renoncant and on that footing, the trial Court held that the plaintiff
continues to be governed by French Law. According to her, the reasoning of
the trial Court proceeds on the absence of any documentary material
precisely of the kind that the document sought to be received herein
supplies. Hence, it is the contention of the petitioner/appellant that the
above certified copy of the written statement filed by the husband is
absolutely necessary and hence, prays for receiving the same as additional
evidence.
14.As far the document that is sought to be received is concerned,
reception of additional document is not a matter of right. Only when a
document could not be procured besides due diligence during trial, such
document can be received later in appellate stage. It is not the case of the
petitioner/appellant that she was not aware of the document that is now
sought to be received. In fact, the document now sought to be filed is only a
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written statement filed by the plaintiff in another suit instituted by the wife
in O.S.No.13 of 2008, wherein, the wife sought half share in a property held
in the name of the husband on the ground that he is a Renoncant and he is
governed by French Law. In the written statement, an evasive denial has
been made by the husband about his status as Renoncant. Now, the 1 st
defendant/wife, as appellant in this Appeal, wants to take advantage of that
written statement to prove her contention that her husband is not a
Renoncant.
15.It is relevant to note that, mere evasive denial cannot be taken as an
admission. It is not the case of the appellant that she was not aware of the
document and the document came into her possession only later, besides due
diligence. When she was very much aware of the existence of the document
and she has not taken any steps to exercise due diligence, as a matter of
right, such document cannot be sought to be received. Further, it is to be
seen whether the said document is relevant for this Court to determine the
issues on hand. It is relevant to note that the appellant herself has filed a suit
against her husband claiming half share, by pleading that her husband is a
Renoncant. That apart, she has also taken advantage of the French Law and
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has filed divorce proceedings under French Law, treating her husband as
Renoncant, and has obtained divorce. Now, it is too far beyond one’s
comprehension to contend that her husband is not a Renoncant. Therefore,
we are of the view that the document showing a mere evasive denial made
by the husband about his status as Renoncant, is not at all required for this
Court to decide the issues on hand. Hence, the petition in C.M.P.No.18060
of 2026 is dismissed.
Point No.(i) :
16.The relationship of the parties is not in dispute. The plaintiff and
the 1st defendant were husband and wife. Their marriage took place on
20.04.1987 and the same was registered at Etat Civil, Pondicherry
Municipality vide Registration No.95/1987/PMC as per French Code Civil.
The marriage between the parties is not in dispute. It is also not in dispute
that the 1st defendant/wife is a French National.
17.Whereas, it is the contention of the plaintiff that he is a Renoncant.
Though he was a Christian originally, his forefathers had renounced their
personal law and they adopted the French Law and therefore, they are
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Renoncants.
18.The following observations made by a learned Single Judge of this
Court in M.Kadirvelu and others v. G.Santhanalakshmi and others
reported in 2016 (2) MWN (Civil) 449 are relevant to understand how the
local population become Renoncants in the Union Territory of Pondicherry, :
“28.With a view to enable the local population to
renounce their personal laws and to adopt the French Code
Civil, a Regulation was passed on 21.9.1881. By this
Regulation, an option was given to the native Indians to
renounce their personal status. Such a renunciation was to be
effected by way of a declaration in the office of the Mayor of
the locality. Incentives were also offered to people, who
renounce their personal status. These incentives were in the
form of political rights and the opportunities thrown up for an
employment in the Government. According to Author Claude
Markovits (A History of Modern India 1480-1950), people
professing Christianity and people belonging to lower castes,
were eager to make use of this opportunity. These persons were
actually given a term namely “renouncants”. These
renouncants are governed by the French Code Civil in matters
relating to marriage, divorce and family affairs. The 3 major
enactments, namely, The Hindu Succession Act, HinduPage 15 of 43
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Marriages Act and the Hindu Adoption and Maintenance Act
are not applicable to renouncants in Pondicherry.
29.The decree of 21 September 1881 enables the Indians,
who so desired to renounce their personal status and to come
under the purview of the French laws, with the objective of
‘facilitating the progressive assimilation of natives’ and of
contributing to ‘the uplift of the pariah by fraternity’. These
measures, which aimed at ethnic (or cultural), not only
political, assimilation marked the beginning of the process of
absorption.
30.One of the important steps taken in this direction was
to give French Indians the right of ‘Universal Manhood
Franchise’ and towards that end, the French counters in India
were endowed with a Deputy, a Senator, a General council,
Local councils and Municipalities. In addition, native Indians
were given the right to representation, association and
organisation. Culturally, those Indians, who so desired, were
invited to renounce their personal status (hence become
renouncants) and place themselves under the authority of the
French Civil Code.
31.After India attained Independence, an agreement was
signed in October 1954 between India and France for thePage 16 of 43
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defacto transfer of the French Territories, including
Pondicherry in India. A Treaty of Cession was signed on
28.5.1956. The Treaty was ratified by the French Parliament in
1962. On 16.8.1962, both countries exchanged Instrument of
Ratification. Consequently, de jure transfer got effected and
Pondicherry, together with the enclaves of Karaikal, Mahe and
Yanam became the Union Territory of Pondicherry from
01.7.1963. In the meantime, Pondicherry (Administration) Act,
1962, was passed by the Parliament, to provide for the
administration of Pondicherry and matters connected
therewith. Under Section 4(1) of the Pondicherry
(Administration) Act, 1962, all laws in force immediately before
the appointed date in the former French Establishments were
directed to continue to be in force, until amended or repealed
by a competent legislature. 16th day of August, 1962 was made
as the appointed date.
32.Under Section 4(2) of the Pondicherry
(Administration) Act, the Central Government was empowered
by order to make such adoptions and modifications, for the
purpose of facilitating the application of any law in relation to
the administration of Pondicherry and for the purpose of
bringing the provisions of any such law into accord with the
provisions of the Constitution. But, the Central Government
was to pass such an order within three years from thePage 17 of 43
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appointed date. Section 8 of the Act empowers the Central
Government to issue notifications extending any enactment
which is in force in a State, to Pondicherry with such
restrictions and modifications as it deems fit.
33.Thereafter, the Pondicherry (Laws) Regulation, 1963,
was issued by the President in exercise of the powers conferred
by Article 240 of the Constitution, with a view to extend certain
laws to the Union Territory of Pondicherry. Section 3 of the
said Regulation declared that the Acts as they are generally in
force in the territories to which they extend, shall also extend to
and come into force in Pondicherry on the 1st day of October
1963, subject to the modifications specified in the First
Schedule. The First Schedule to the Regulation contained a lot
of enactments. The Hindu Succession Act, 1956 is one of the
Parliamentary enactments included in the First Schedule to the
Regulation of the year 1963. But, as seen from the First
Schedule, the Hindu Succession Act, 1956 was extended to
Pondicherry and it came into force in Pondicherry on the
1st day of October 1963, subject to one modification. The
modification was that a separate Sub-Section, namely Sub-
Section (2A) was inserted under Section 2 of the Hindu
Succession Act, 1956. This new Sub-Section reads as follows:
“Section 2(2A) : Notwithstanding anything contained in
Sub-Section (1), nothing contained in this Act shall applyPage 18 of 43
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to the renouncants of the Union Territory of
Pondicherry.”
34.Therefore, it is clear that as per Section 3 read with
the First Schedule to the Pondicherry (Laws) Regulation, 1963,
the provisions of the Hindu Succession Act, 1956, were
extended to the inhabitants of the Union Territory of
Pondicherry, subject to one restriction namely that in so far as
renouncants are concerned, the Hindu Succession Act would
not have any application.
…
40.As we have seen earlier, the French Code Civil was
made applicable to the inhabitants of the French Settlements of
Pondicherry, Karaikal, Mahe and Yanam by the resolution
dated 6.1.1819. But, this resolution contained a saving clause.
By a subsequent resolution dated 24.4.1880, provisions relating
to registration of births and deaths and performance of
marriages were regulated. Even this resolution contained a
saving clause, making it optional to the Indians to follow their
own customs. It appears that a further option to the Indians to
switch over to the French way of life was given under another
resolution dated 21.9.1881. By this option, the inhabitants were
allowed to renounce their Personal Law and espouse the
French law. People, who availed this opportunity and exercised
the option to renounce their Personal Laws, emerging out of
customary rights and practices, were called renouncants.
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…
41.It is a linguistic paradox that the descendants of the
renouncants inherited the consequence of renunciation by their
forefathers. Mr. Ramabathiran cites in his article, 3 decisions,
which recognised the consequence of such renunciation. One
was a judgment dated 12.11.1870 by the then Court Appeal at
Pondicherry, which held valid the recourse by Muslims to the
freedom of guardianship as organised by the French Code
Civil. The second was the case of a Hindu widow, who adopted
a son to herself. The adoption was held valid by the Privy
Council in C.S. Nataraja Pillai v. C.S. Subbaraya Chettiar [AIR
1949 PC 24].”
19.The above judgment was followed in various other judgments
including the case in Gowri v. Subbu Mudaliar and others reported in
(2017) 4 CTC 503, wherein, after extracting the above observations, it has
been held as follows :
“29.The learned single Judge ultimately held that only
the persons who were exercised the option to renounce their
customary laws and adopted the French Code Civil, are not
governed by the provisions of Hindu Succession Act, 1956 and
held that the saving clause applies only to persons, who are
inhabitants at the time when the French Code Civil was
extended. Persons, who are descendants of those inhabitants,Page 20 of 43
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are also entitled to the benefit. But, persons, who became
inhabitants of Pondicherry after the application of the French
Code Civil, are not entitled to claim since they are not
renouncants.”
(emphasis supplied)
20.Though the said case was arising out of Hindus, the learned Single
Judge has held that the savings clause applies only to persons who are
inhabitants at the time when the French Code Civil was extended. It was
further held that persons who are descendants of those inhabitants are also
entitled to the benefit. The history recorded above clearly shows that, even a
person professing Christianity is permitted to renounce when the parties are
governed by Indian Succession Act.
21.Section 1-A of the Indian Succession Act reads as follows :
“1-A. Act not to apply to Renoncants – Nothing
contained in this Act shall apply to the Renoncants of the Union
Territory of Pondicherry” – Pondicherry Act 10 of 1980,
Section 3 (w.e.f. 27.09.1980)”.
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22.Therefore, a person, either Renoncant by himself or descendant of
his inhabitants, is also entitled to adopt the French Law.
23.In the above background, it has to be looked into whether the
plaintiff is a Renoncant or not.
24.It is the specific contention of the plaintiff that he is a Renoncant
and his forefathers are also Renoncants who have renounced their personal
laws and adopted the French Civil Code. Ex.A2 (certified copy of the
Marriage Extract of the plaintiff and the 1 st defendant) clearly shows that the
plaintiff’s father’s name is Abneth Rassendarame, Military (Retired) and the
1st defendant/wife has declared that she want to conserve her French
nationality after her marriage with the plaintiff. Exs.A4, A5, A6 and A7
proves the fact that the plaintiff’s father was a Renoncant. Similarly,
Exs.A56 to A89 have been filed by the plaintiff to prove the clinching fact
that the plaintiff’s ancestors and the entire family members have renounced
their personal law and adopted the French Code Civil and have become
Renoncants. Once the descendants of such Renoncants are also entitled to
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adopt the French Law, it has to be held that the plaintiff is also a Renoncant.
25.The above factum that the plaintiff is a Renoncant is further
established by the own pleadings of the 1st defendant/wife. It is relevant to
note that the 1st defendant has filed M.O.P.No.123 of 2007 before the Family
Court, Pondicherry, amended copy of which has been marked as Ex.A28,
seeking divorce on the ground of cruelty. The very petition was filed under
Articles 233 and 242 of French Code Civil, seeking divorce. The 1 st
defendant, in the matrimonial petition, has taken a specific stand that both
the petitioner/wife and her husband are Christians and the petitioner is a
French National and the respondent/husband is a Renoncant. Divorce has
been granted to the 1st defendant in the said petition. It is also to be noted
that the 1st defendant has also filed a suit in O.S.No.13 of 2008 before the
District Court, Pondicherry, claiming her half share from her husband’s
property. In the said plaint, which is filed as Ex.A30, in Para No.10, she has
clearly pleaded that, both the plaintiff and the 1 st defendant, being
Renoncants, are governed by French Law and accordingly, in any property
purchased by the husband or wife during the marriage or after the marriage,
both the husband and wife are having equal rights. The said suit has been
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dismissed as not pressed and the judgment and decree in the said suit have
been marked as Exs.A38 and A39. It is the stand of the husband that the
said suit came to be dismissed after receipt of Rs.10 Lakhs by the wife from
the purchaser. Though the receipt of Rs.10 Lakhs is denied by the wife, the
fact remains that, in her two judicial proceedings, viz., one filed for divorce
in M.O.P.No.123 of 2007 under Ex.A28 and another suit in O.S.No.13 of
2008 filed for half share in the husband’s properties whose plaint is marked
as Ex.A30, it is the specific stand of the wife that her husband is a
Renoncant.
26.The evidence of D.W.1 (1st defendant), when carefully seen, she
has admitted in the cross-examination that, in O.S.No.123 of 2007, she has
sought half share as per French Law. She has also admitted in the cross-
examination done on 27.06.2017 that she received a sum of Rs.8 Lakhs for
her daughters. This admission clearly probabilises the plaintiff’s case that
the suit filed by the 1st defendant came to be dismissed for default after
settlement of certain amount. Be that as it may.
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27.Considering the documents Exs.A2, A4, A5, A6, A7 and A56 to
A89 and the pleadings in judicial proceedings under Exs.A28 and A30 and
also the positive admission by the wife about the status of her husband in the
judicial proceedings admitting that her husband is a Renoncant, the stand
taken by the plaintiff/husband that he is a Renoncant, has been clearly
established. The 1st defendant, having taken advantage of the French Law
and obtained divorce against her husband, now cannot approbate and
reprobate and contend that he is not a Renoncant in the present proceedings.
The very candid admission made in both the proceedings amounts to
estoppel by pleadings. Thereby, the 1st defendant/wife is estopped from
denying the status of her husband as a Renoncant for the purpose of sharing
the properties. Accordingly, we are of the view that the plaintiff has
established the fact that he is a Renoncant, as his forefathers have renounced
their personal laws and are governed by French Law. Accordingly, Point
No.(i) is answered against the appellant/wife.
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Point No.(ii) :
28.It is the specific stand of the plaintiff that the 1 st defendant did not
have any source to purchase the suit properties. According to the plaintiff,
the entire amount has been paid by the plaintiff in respect of all the
properties. Initially, Power of Attorney was executed in favour of the 1 st
defendant in the year 1992 and she, in turn, executed sale deeds in favour of
her mother in respect of Item Nos.1 and 2 and thereafter, the said properties
came to be settled in favour of the 1 st defendant by her mother. However, it
is the stand of the defendant that she has purchased the properties out of the
contribution made by her brothers and mother.
29.It is the contention of the plaintiff that constructions have been put
up in the Item Nos.1 and 2 of the suit properties by availing loan from LIC
Housing Finance Limited as well as UCO Bank. The plaintiff has also
examined P.W.2 to P.W.6 to show that he has borrowed certain amount from
P.W.2 to P.W.6 and the consideration has been paid by them. Though P.W.2
to P.W.6, in their evidence, would submit that they also supported the
plaintiff and paid substantial amount right from 1992, their evidence appears
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to be artificial in nature and it appears to be parrot-like-repetition.
Absolutely, there is no evidence, whatsoever, to show that a huge amount
has been parted by them.
30.Even assuming that the suit Items 1 and 2 have been purchased in
the name of the wife, unless contrary is established, it shall be held that the
said properties have been purchased only for the benefit of his wife as per
Section 3 of the unamended Benami Transactions (Prohibition) Act, 1988.
Absolutely, there is no motive, whatsoever, established by the plaintiff. No
contrary evidence is available to establish what was the motive to purchase
the properties in the name of his wife. Therefore, in the absence of any
contrary evidence, law presumes that such purchase in the name of the wife,
is only for the benefit of the wife. Though the Benami Transactions
(Prohibition) Act does not prohibit purchase of the property in the name of
wife or unmarried daughter, even assuming that the property has been
purchased by the husband in the name of his wife, it shall be presumed,
unless contrary is proved, that the property had been purchased for the
benefit of his wife or unmarried daughter.
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31.It is interesting to note that, though Item Nos.1 and 2 of the suit
properties are stated to be purchased by the plaintiff in the name of his wife,
on perusal of the documents, particularly, Ex.A17 (Power of Attorney) dated
05.08.1992, executed by one Panneerselvam as Power Agent of one
Devikiammal, it is seen that power was given in respect of Item No.2 of the
suit properties in favour of the 1st defendant. The 1st defendant, as a Power
Agent, in turn, executed a sale deed under Ex.A16 in favour of her mother
Miron Rohini. After her mother becoming owner of the property, she has
settled the property under Ex.A14 in favour of the 1 st defendant. These
documents are in respect of Item No.2 of the suit property. Similarly, in
respect of Item No.1 of the suit properties, a Power of Attorney was
executed in favour of the 1st defendant on 06.05.1996 under Ex.A51 and
based on the Power of Attorney, the 1 st defendant has conveyed the same to
her under sale deed marked as Ex.A15. Later, the mother has settled the
property in favour of the 1st defendant under Ex.A13.
32.Though P.W.2 has stated that he has paid a sum of Rs.2 Lakhs, the
Power of Attorney does not indicate the nature of any payment and it is just
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a General Power of Attorney to deal with the property executed by one
Panneerselvam. The Power of Attorney documents do not show that the
power deed was coupled with interest. Even assuming that the properties
were purchased out of the consideration paid by the plaintiff, the fact
remains that the sale deeds have been executed only in favour of his mother-
in-law, which clearly falls outside the ambit of Section 3 of the unamended
Benami Transactions (Prohibition) Act. As far as Item Nos.1 and 2 of the
suit properties are concerned, admittedly, the sale deeds are registered in the
name of mother-in-law of the plaintiff. What is permitted under the Benami
Transactions (Prohibition) Act under Section 3 is only a purchase in the
name of wife or unmarried daughter, not beyond that. Admittedly, the
properties in question were purchased and registered in the name of the
mother-in-law. Even assuming the contention of the plaintiff that such
purchase is a benami transaction to be true, it is relevant to note that, such a
stand cannot be taken by the plaintiff, which is prohibited under Section 4 of
the said Act. Section 4 of the Benami Transactions (Prohibition) Act, 1988,
would state that no suit, claim or action to enforce any right in respect of any
property held benami against the person in whose name the property is held
or against any other person shall lie by or on behalf of a person claiming to
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be the real owner of such property. Similarly, as per Section 4(2) ibid., no
defence based on any right in respect of any property held benami, whether
against the person in whose name the property is held or against any other
person shall be allowed in any suit, claim or action by or on behalf of a
person claiming to be the real owner of the such property. Though there is
an exception to hold the property in the name of coparcener or trustee or a
person standing in a fiduciary capacity, it is not the stand of the plaintiff that
his mother-in-law was holding his property as a trustee and the property has
been registered in her name as a trustee or she was standing in a fiduciary
capacity. In the absence of any pleadings in respect of the same, the plea of
benami as against the mother-in-law, in whose name Item Nos.1 and 2 of the
suit properties, were originally registered by the Power Agent, namely the 1 st
defendant, cannot be sustained. Without any basic pleading that the mother-
in-law was a trustee or she was standing in a fiduciary capacity, the plea of
benami as against the Item Nos.1 and 2 of the suit properties, cannot be
maintained by the plaintiff. Therefore, we are of the view that the plaintiff
cannot base his claim on Item Nos.1 and 2 of the suit properties as purchased
in benami. Point No.(ii) is answered in favour of the appellant.
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Point No.(iii) :
33.Much emphasis is made by the plaintiff to show that a building was
constructed in suit Item Nos.1 and 2 by availing loan jointly by the husband
and wife and he has relied upon the documents Exs.A18 and A19 (loan
payment receipts issued by LIC Housing Finance Limited dated 29.12.2008
and 13.07.2009 respectively), Exs.A20 and A21 (letters informing to pay the
housing loan issued by LIC Housing Finance Limited dated 22.12.2008 and
25.08.2009 respectively), Exs.A22 and A23 (letters informing to pay the
housing loan issued by LIC Housing Finance Limited informing about the
revision in rate of interest dated 08.01.2009 and 04.02.2012 respectively)
and Ex.A25 (statement of account for the housing loan issued by LIC
Housing Finance Limited dated 17.05.2012). Further, the plaintiff has also
relied upon Exs.B19 and B20 (UCO Bank Passbook of the 1 st defendant).
He has also relied upon Ex.B18 (letter sent by the UCO Bank dated
01.02.2005) sanctioning a loan of Rs.7.4 Lakhs borrowed by both husband
and wife on the commercial building at 133, 135, S.V.Patel Salai,
Pondicherry. This letter is of the year 2005.
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34.The above documents clearly show that the plaintiff and the 1 st
defendant have jointly availed loan for commercial properties in the year
2005. Whereas, it is relevant to note that Item Nos.1 and 2 were purchased
long back. When the matrimonial relationship was cordial, both the husband
and wife availed loan from the Bank and they made some improvement in
the Item Nos.1 and 2 of the suit properties. The fact remains that Item Nos.1
and 2 of the suit properties were, in fact, purchased in the name of mother-
in-law and therefore, even assuming that some constructions were made by
the husband and wife at the later point of time, at the most, it can be termed
only as improvement. Merely because some improvement was made by
availing loan at later point of time, except claiming a share on such
improvement, the plaintiff cannot assert his right over the title of the suit
Item Nos.1 and 2, since the same have been purchased by the mother-in-law,
who, in turn, settled the properties in the name of the 1 st defendant. It is not
the case of the plaintiff that he seeks partition only in respect of the
improvement made by them jointly. Whereas, he asserts his right only in
respect of the title of the properties, which is certainly not permitted under
law insofar as Item Nos.1 and 2 are concerned.
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35.Whereas, the 1st defendant contends that the entire construction
was made out of the amounts contributed by her brothers and mother under
Ex.B28 series. Ex.B28 series, when carefully seen, it is clear that, from
03.06.1998, the brothers of the 1st defendant have sent money to the mother
of 1st defendant and from 09.12.2002, the brothers have sent money directly
to the 1st defendant. Under Sl.No.1 to Sl.No.18 in Ex.B28 series, the money
has been sent to the 1st defendant. Similarly, from Sl.No.19 to Sl.No.22 in
Ex.B28 series, the amount has been sent by the brothers of the 1 st defendant
to their mother and later, from Sl.No.23 to Sl.No.32 in Ex.B28 series, the
amount has been sent by the brothers to the 1 st defendant. Totally, a sum of
Rs.14,21,389/- has been sent by the brothers of the 1 st defendant. It is the
contention of the 1st defendant that, only out of the said contribution made
by the brothers and mother of the 1 st defendant, the improvement has been
made on Item Nos.1 and 2 of the suit properties. However, there is no
specific plea as to the extent of amount spent for such improvement.
36.The fact remains that the parties are governed by French Code
Civil. As per French Code Civil, when a property is purchased in the name
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of either spouse, it shall be the property belonging to the community, in
which, both the husband and wife are certainly entitled to claim share.
Though the above documents show that the 1st defendant has also received
certain contribution from her brothers and mother, the fact remains that, both
the husband and wife have also availed loan from UCO Bank for
commercial building and prior to that, they have also availed loan from LIC
Housing Finance Limited. The fact also remains that they have made
improvement on suit Items 1 and 2, though stands in the name of the wife.
Though it is stated by the plaintiff that house warming ceremony of the
building over suit Item No.1 was celebrated in the year 2003, in the absence
of any specific details as to the nature of the improvement made and the
amount spent upon Item Nos.1 and 2 and in the absence of any relief for
recovery of amount spent for Item Nos.1 and 2, which admittedly, were
purchased in the name of the mother-in-law, which falls outside Section 3 of
the Benami Transactions (Prohibition) Act, who, in turn, donated the
property in favour of her daughter, viz., the 1 st defendant, the plaintiff cannot
assert his title over the said properties.
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37.In this regard, it is useful to extract the relevant Articles of the
unamended French Code Civil, which read as follows :
“1401.The following things form the assets of the
community :
1.All the movables which husband and wife possess on the
day of their marriage, and also all the movables which they may
acquire during marriage, either under a succession or by gift
inter vivos; unless the donor has expressed a contrary intention.
2.All the produce, revenues, interest or arrears of every
kind which fell due (r), or have been received either husband and
wife at the time of their marriage, or from property which they
fell into during the marriage, whether as heirs or otherwise.
3.All the movables purchased during marriage (C.529,
1393, 1400, 1404, 1433, 1437, 1470, 1497, 1498, 1500).
1402.All immovables are assumed to be purchased by the
community which are not proved to have been either the property
of or to have been in husband’s or wife’s legal possession before
the marriage, or which are not proved to have come to him or her
since, either under a succession or by way of donation inter
vivos. (C.1352, 1401, 1404, 1455).
…
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1405.Immovable property given by donation inter vivos to
one of the parties to a marriage (during the subsistence of the
marriage) does not become part of the property belonging to the
community, but belongs to the donee thereof exclusively; unless
the instrument of donation expressly recites that it shall belong to
the community. (C.1470, 1493).”
38.Article 1402 of the French Code Civil makes it clear that, if any
property comes to either husband or wife, either by way of succession or
donation, the said property will not be considered as the property belonging
to the community. Article 1405 of the French Code Civil makes it clear that
immovable properties given as donation to one of the parties to the marriage
during subsistence of the marriage does not become a part of the property
belonging to the community, but belongs only to the donee thereof
exclusively, unless the instrument of donation expressly recites that it shall
belong to the community.
39.In the light of the above Articles, the Settlement Deeds executed by
the mother of the 1st defendant under Exs.A13 and A14, when perused, do
not indicate that the properties shall be treated as community properties.
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Therefore, Item Nos.1 and 2 are certainly the absolute properties of the 1 st
defendant.
40.Even after the amendment, the French Code Civil (English
Translation) of the year 2006, when carefully seen, Articles 1402 and 1405
read as follows :
“Art.1402
Any property, movable or immovable, shall be deemed an
acquisition of the community where it is not proved that it is a
separate property of one of the spouses in accordance with a
provision of law.
Where a property is one of those which do not display
proof or mark of their origin, personal ownership of a spouse, if
disputed, shall be established in writing. Failing an inventory or
other contemporaneously constituted proof, the judge may take
into consideration all writings, in particular family instruments
of title, registers and papers, as well as bank documents and
invoices. He may even admit testimonial or presumptive
evidence, where he observes that it was materially or morally
impossible for one spouse to obtain a writing.
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Remain separate property the items of property of which
the spouses had ownership or possession on the day of the
celebration of the marriage, or which they acquire, during the
marriage, through succession, gift of legacy.
A gratuitous transfer may stipulate that the property which
is its subject-matter will belong to the community. Property falls
into community, unless otherwise stipulated, where a gratuitous
transfer is made jointly to both spouses.
Property surrendered or transferred by the father, mother
or other ascendant to one of the spouses, either in order to
discharge what he owes to him or her, or under the obligation of
paying debts of the donor to outsiders, remain separate property,
subject to reimbursement.”
41.Article 1405 clearly shows that any property obtained by
succession, gift or legacy remains as a separate property, unless stipulated in
the deed itself that it is a property belonging to the community. Therefore, in
the absence of any indication in the Settlement Deeds executed by the
mother of the 1st defendant in favour of the 1 st defendant that the property
shall belong to the community, Item Nos.1 and 2 of the suit properties which
are given by way of Settlement Deeds under Exs.A13 and A14 in favour of
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st st
the 1 defendant, shall be the separate properties of the 1 defendant.
42.Though it is stated that the husband and wife had jointly borrowed
loans from LIC Housing Finance Limited and UCO Bank, the letter from the
UCO Bank under Ex.B18, as discussed above, clearly shows that it is in
respect of commercial properties. The loan is of the year 2005, which is
much after the purchase of Item Nos.1 and 2 of the suit properties. Even
assuming that they had jointly availed some loan for making improvements
over the properties, without establishing the specific nature of the
improvement or the amount spent by the husband, the husband/plaintiff
cannot base his right on the entire immovable properties, since they came by
way of gift deed to the wife from her mother and remain as separate
properties of the wife. Therefore, we are of the view that Items Nos.1 and 2
of the suit properties are the separate properties of the appellant/1 st defendant
and the plaintiff cannot claim any share over suit Items 1 and 2.
Accordingly, Point No.(iii) is answered in favour of the appellant.
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Point No.(iv) :
43.As far as suit Item Nos.3 to 5 are concerned, since this Court has
held that the parties are governed by French Code Civil, since the plaintiff is
also held to be a Renoncant, the properties held either in the name of the
husband or wife during subsistence of marriage, will become the asset of the
community as per French Code Civil. Therefore, as per French Code Civil,
the plaintiff is certainly entitled to half share in Item Nos.3 to 5 of the suit
properties. Accordingly, Point No.(iv) is answered against the appellant.
Point No.(v) :
44.To sum up, since the suit Item Nos.1 and 2 have been held to be the
separate properties of the appellant/1st defendant by rejecting the plea of
benami set up by the 1st respondent/plaintiff as hit by Section 4 of the
Benami Transactions (Prohibition) Act, 1988, whereas, the plaintiff is held to
be entitled to half share in suit Item Nos.3 to 5 standing in the name of the 1 st
defendant as forming part of the asset of the community as per French Code
Civil, as both parties are governed by French Law, this Court holds that the
plaintiff is entitled to half share in Item Nos.3 to 5 of the suit properties, but
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not Item Nos.1 and 2.
46.Accordingly, this Appeal is partly allowed and the judgment and
decree of the trial Court granting preliminary decree allotting half share in
favour of the plaintiff in respect of Item Nos.1 and 2 of the suit properties
alone is set aside, whereas, the decree granting half share in respect of Item
Nos.3 to 5 stands confirmed. No costs.
(N.S.K., J.) (M.J.R., J.)
29.07.2026
mkn
Internet : Yes
Index : Yes / No
Speaking Order
Neutral Citation : Yes
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To
1.The Judge,
Family Court,
Pondicherry.
2.The District Registrar,
Registration Department,
Sakthi Nagar, Saram,
Pondicherry – 13.
3.The Oulgaret Sub Registrar,
Office of the Sub Registration Department,
Jawahar Nagar, Boomianpet,
Pondicherry – 5.
4.The Section Officer,
VR Section,
High Court, Madras.
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N. SATHISH KUMAR, J.
and
M. JOTHIRAMAN, J.
mkn
Judgment in
A.S.No.551 of 2019
29.07.2026
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