Selvaradjou vs Marie Josephine Dutamby for herself and as mother and Guardian of her Sons, Sandanaradjou, Dutamby and Joseph Maria Soundae Dutamby Ors.

Anantanarayanan, J.—The following are the essential facts of this appeal preferred to us as the cassation Court by one Selvaradjou, from

the decisions of the Court of First Instance and the Superior Court of Appeal at Pondicherry in confirmation. A certain Thangammal died, leaving a

Will, in or about March 1922, under the terms of which the house, which is the subject-matter of controversy, was given to be enjoyed as a

tenancy for life by her son Rangaswami, her son Ramaswami, Mangathammal, the wife of Ramaswami and her two daughters China. Ponnammal

and Krishnammal; we may add that, at the present time, all of them including Ramaswami are dead. The vested remainder in the property was

bequeathed by testament in favour of the male issues of Ramaswami, who were Arunachalam (second Defendant in the litigation), Pachayappa

(deceased) represented by his widow Rajakantham (third Defendant) and Selvaraj (Plaintiff-Appellant): Long after this, on 7th August 1947,

Ramaswami executed a mortgage of this property for himself and on behalf of his minor son Selvaraj (Appellant), along with China Ponnammal

and Arunachalam and Pachayappa, his two major sons, in favour of Messrs. Marie Josephine Dutamby for Rs. 3,000.

The creditor commenced proceedings for realising the mortgage money by sale of the hypotheea, in accordance with the French Processual

Law. Under Article 877 of the Code of Civil Procedure, the creditor mortgagee first notified the heirs of Ramaswami, who was himself dead by

then, namely, Arunchalam, Selvaraj and Rajakantham, widow of Pachayappa for herself and as guardian of her minor son, on 5th July 1954.

Subsequent proceedings under the CPC took the form of what is termed a Commandment, which was a demand for repayment of the debt issued

to all the heirs of Ramaswami specified above, under Article 673 of the Code of Civil Procedure. On 7th October 1954, there was an attachment

by the Bailiff of the mortgaged property, after service of the Commandment. There is also a copy of the return of the Bailiff, dated 12th October

1954, enclosing service of the attachment on Selvaraj and the other heirs. Towards the end of 1954, what is termed the Cashier de charges, which

would correspond with our terms of proclamation, was deposited in the Court of First Instance. On 5th November 1954, notification of the

deposit of these sale specifications in Court was given to the heirs of Ramaswami and other secured creditors.

As we shall see a little later, Article 728 of the Code of Civil Procedure, which is a very important provision upon the facts of this case, comes

into play at this juncture. Any person aggrieved by the mortgage proceedings, like Selvaraj (Appellant) who has had notice of the attachment, was

bound under this Article to present to Court what has been termed the moyens de nullite, objecting if so advised both to the substance as well as to

the form of the procedure, within three days before the publication of the terms, on pain of forfeiture otherwise, of the right to object. This is an

action under the French Processual Law, ''roughly corresponding to an objection upon any fundamental ground to the sale, by a party affected by

the sale proceedings. Admittedly, Selvaraj (Appellant) did not file this action in nullity within the time specified by Article 728. On the contrary, he

filed, a little belatedly, a statement on 6th December 1954, purporting to be what is known as a Dire, raising objections to the validity of the

mortgage itself, as effecting his undivided title or interest, and also to further proceedings in ejectment. It is a matter of admission that the executing

Court did not decide the objections so raised. On the contrary, the Court merely directed that the Dire should be published along with the sale

conditions, so that the intending purchaser at the Court-auction, would have knowledge of the grounds urged by Selvaraj (Appellant) in objection

to the proceedings.

On 14th February 1955, the public auction was held by Court, and the property knocked down for Rs. 14,850 in favour of Vengataranga

Reddiar (4''th Respondent in the present proceedings). On 15th March 1955, the present suit was instituted by the Appellant, as assignation en

nullite de adjudication (writ of summons for declaring as a sale as void), in. his capacity as the heir of the testator Thangammal, as well as the son

of Bamaswami Chcttiar. The Court of First Instance dismissed the suit, and Selvaraj (Appellant) appealed to the Tribunal Superieur d'' Appeal at

Pondicherry. One important fact is that, pendente lite and after the institution of this appeal, on 25th September 1958, Selvaraj purported to

renounce, under ,the French Law, his rights to the estate of his father, the late Ramaswami Chettiar. In March 1962, the appeal was dismissed by

the Superior Court of Appeal at Pondicherry, which confirmed the judgment of the first Court.

Three grounds which would be relevant in assailing the judgment and decree of the appellate Court at Pondicherry, have emerged during the

course of the protracted arguments before us. The first ground is the ground of procedure, which we have already hinted at in our summary of the

events which led to the mortgage sale. Selvaraj (Appellant) cannot plead that he is a total stranger to the mortgage, or to the attachment

proceedings. He was represented in the mortgage as a minor, by his father, and it is incontrovertible that he had notice of the attachment

proceedings under the French Processual Law. Consequently, certain special forms of those proceedings, known as distraction procedure, which

have relevance to a protective action by a third partly, who is altogether a stranger, in respect of such proceedings by way of sale of mortgaged

property, may not strictly apply to the present situation. But, under Article 728 that we have earlier referred to Selvaraj (Appellant) should

undoubtedly have intervened with an action in nullity (moyens de nullite), objecting either to the substance of the proceedings, or to the form

thereof. Actually, in his Dire we find that the Appellant pleaded that his rights in the property could not be affected by the mortgage and that the

creditor could not under the French Law, bring the hypotheca to sale, without first dividing and segregating the right of Selvaraj by means of an

action in partition. But this Dire was instituted after the time specified in Article 728, and, hence, after the Appellant had incurred the penalties of

forfeiture specified in that Article. Now, there is a latter Article 729, which also states that an action in nullity (moyens de nullite) against the post-

attachment and publication procedure should be initiated, under the same penalties of forfeitures, in case of failure to initiate the action, at the latest

three days before the auction sale. Selvaraj (Appellant) did not purport to file any action in nullity under Article 729, three days prior to the auction

sale. But, in the meantime, as we have seen, he had submitted his Dire, which had been affixed to the terms of the sale proclamation. If this would

sufficient to subserve the purpose of Article 729, the question arises whether it ought not to be so dealt with, and considered upon its merits.

There is another ground upon which the Superior Court of Appeal confirmed the decree of the Court of First Instance, and dismissed this

action, which is a wholly distinct and separable ground. Under the French Law, and this matter is hardly in controversy in view of the very clear

provisions of statute to which our attention has been drawn, a man may accept succession to an estate either simplicitor or under benefit of

inventory (Article 774 of the Code of Civil Procedure). As a note to the article in the commentary by Dalloz, volume II, page 71, makes it clear, if

the succession is accepted, the principle is not that the estate accrues under the acceptance; on the contrary, the heir gets the right under the law.

But, if there is a positive acceptance, the heir loses one right specifically recognised in French Law, the right to Renunciation, which is embodied in

Article 784. In the present case, it is not in dispute that, if Selvaraj accepted the succession, he did so simply, and not under benefit of inventory.

The record does not show that the succession was thus limited in scope. But, if there is such an acceptance, the right to renounce will thereby be

lost. The renunciation in Article 784 will not be presumed. It is a positive act, to be made by the party affected, in the Court of First Instance, and

it has to be noted in a register maintained for the purpose. Under Article 873 of the Code of Civil Procedure, the heirs are bound to pay the debts

and charges of the estate personally (personnellement). One important commentary on this Article in Dalloz makes it clear that the heir is bound to

pay the debts of the estate to which he succeeds, even from his own personal assets. Now, as we made it clear earlier, Selvaraj did purport to

renounce his rights to the estate of his father, but this was pending the appeal on 25th September 1958. If there was an earlier and specific

acceptance of this succession by the Appellant, this renunciation would be of no avail. If there was such an acceptance, Selvaraj (Appellant) would

be bound to pay the debt of his father, the late Ramaswami, even from his personal asset, namely, his share in the mortgaged house which he has

derived under the ""Will of his grandmother Thangammal. It would be no answer to such a liability to say that Ramaswami (the father) had no right

to mortgage the Appellant''s share at all, for some previous debt personal to the father, which had nothing to do with the estate of Thangammal.

There is also a third ground which has emerged before us during the arguments, but which does not appear to have been dealt with in either of

the Courts at Pondicherry. Under Articles 1048, 1049 and 1050 of the Code of Civil Procedure, dispositions in favour of the grand-children by a

donor or testator, or children of a brother or a sister, are dealt with Article 1050 makes it clear that the dispositions permitted by the two

precedent Articles will be valid, only if the estate is charged for the benefit of all the children born or to be born, of the heir of entail, without

exception or preference in respect of age or sex. If this Article applies, the Will of Thangammal might itself be invalid, because, under the Will,

there was an expressed preference for the heirs male of Ramaswami; and, in fact, the vested remainder was confined to the heirs male. This

ground, as we have earlier observed, is here raised for the first time, but it is a ground which the law permits an affected party to raise in the Court

de Cassation.

The above discussion will make it clear that certain vital issues which emerge from the pleadings, and the subject-matter of controversy, have

not been precisely and fully dealt with by the Court of Appeal at Pondicherry. The first issue is whether the Dire filed by the Appellant can operate

as an action in nullity under Article 729 of the Code of Civil Procedure, even though the Appellant might have incurred the penalties of forfeiture

under Article 728, by not raising objection within the time specified in Article 728. There has been some difficulty upon the precise scope of the

forfeiture clause in Article 728. Since we are remitting the appeal for stated grounds, for fresh consideration and disposal, it may not be necessary

for us to express any opinion upon this somewhat debatable aspect. It may be even inexpedient that we should do so. But it is sufficient for us to

observe that certain precedents and authorities have been placed before us, on this aspect, such as Recueil Sirey 1945-1-123 (Juris Prudence of

the Court of Casaiion), related to the High Court decree, husband and wife, D.C. Danteti; also the New Repertoire by Dalloz, relating to

attachment of real property. One view is that Article 728 of the CPC applies equally to any alleged invalidity regarding the substance of the

proceeding, as well as a ground relating to the procedure. In other words, the entire purpose of these two Articles seems to be to clothe the bona

fide purchaser for value at the Court-auction with an indefeasible right,'' and to protect him against some subsequent action which may tend to

frustrate his title acquired at the Court-sale. That, generally, we need not stress, is a perfectly reasonable view of the French Processual Law.

Another view, for which also the support of Jurisprudence is claimed, is that the penalties of forfeiture in Article 728 ought not to be enforced, with

full rigour, against a party whose interest could not be the subject of valid mortgage. In any event in the present case, the complication is that there

is a Dire, though filed belatedly, which might subserve the purpose of Article 729, if not of Article 728. The problem is, how far can it do so, and

to what extent can it avail the Appellant, though he might have incurred earlier the penalty of forfeiture under Article 728? That is a ground which

has to be carefully dealt with by the Tribunal Superieur d'' Appel, and which, as far as we are able to glean from the judgment in appeal, has not

been so far done.

We think it is sufficient to be very brief with regard to the other two grounds. The third ground is here raised for the first time, namely, that

relating to the validity of the Will of late Thangammal, and we shall say no more on that aspect. Concerning the second ground, we find from a

perusal of the Dire (page 14 of the typed papers) that Selvaraj purported to have filed this statement both in his name personally and

In his capacity of heir of his late father Soungane Ramaswami Chettiar.

But whether such description would per se amount to an acceptance of heirship, is a matter to be determined. There is no evidence whether

late Ramaswami Chettiar left any estate otherwise, and whether Selvaraj had the benefit of simple succession to this estate, without an inventory. In

order to do substantial justice to the parties, evidence on this aspect may also have to be considered or canvassed, within the discretion of the

Court of Appeal.

For all these reasons, we are exercising our powers as a Court of Cassation in setting aside the decree of the Superior Court of Appeal, and

remanding the entire appeal for re-hearing and disposal afresh, in the light of our dicta in this judgment. ""We would finally observe that it is our

desire that, in so disposing of the appeal; the Superior Court of Appeal might record its reasons for its conclusions in its judgment, with such

precision and in such form as grounds generally appear exhibited in judgments of this High Court, or judgments which come up before it in appeal

or ''revision. Both parties will be at liberty to submit their conclusions in the Court prior to the hearing of the appeal afresh, in accordance with the

French procedure. Costs will abide, and follow the result. Finally, we direct that the appeal shall be re-heard by either the entire Tribunal Superior

Appeal , or any Bench thereof composed otherwise (autrement compose) than the Bench which originally disposed of the appeal.