1. This second appeal is from Pondicherry. It raises a question as to how the law of intestate succession operates in the territory of Pondicherry when a Hindu father dies possessed of ancestral property and leaves both male and female issue.

2. In this case, one Arumugha of Pondicherry had two sons and two daughters. He died in 1966, possessed of an item of ancestral immovable property. After his death, one of his daughthers, Muniammal, purported to sell an one-fourth share in that property to one Manicka, The sale was effected apparently under the impression that Muniammal was entitled under the law to one-fourth share at one of her fathers four children. The sale was in the year 1968. While so Arumughas elder sor, Subramanian, executed a sale of the very same property in the next year 1969, to one Ramalinga. He purported to sell the property, as Kartha of the family and for necessity.

3. In 1972, Manicka brought a suit in the Additional District Munsifs Court, Pondicherry for partition and separate possession of one-fourth share in the property, as purchaser from Muniammal. In that suit, he impleaded his vendor Muniammal and also the other heirs of Arumugham. He also impleaded, as the fifth defendant in the suit Ramalinga, who had purchased the suit property from Subramania.

4. Opposition to the partition suit came mainly from the fifth defendant Ramalinga. He urged that plaintiffs vendor Muniammal had no saleable interest in the suit property, nor even to one-fourth share therein. He relied on the circumstance that the suit property was ancestral in character, and contended that since Arumugha had died while remaining joint with his sons, the rule of survivorship operated and the property devolved only on his sons, to the entire exclusion of his two daughters, Muniammal and another.

5. The learned District Munsif accepted the 5th defendants contention, and dismissed the plaintiffs suit. He held that Muniammal did not inherit any interest in the suit property as heir of the deceased Arumuga and the property being ancestral property, passed in its entirety to Arumughas two sons by survivorship.

6. On appeal by the plaintiff, the learned District Judge took a different view of the law. He said that Mitakshara, as applied in Pondicherry did not recognize a coparcenary system between a father and his sons during his lifetime and the father was the absolute and sole owner of all property, whether ancestral or personally acquired. The learned Judge accordingly ruled out the application of the Mitakshara doctrine of survivorship to the present case. He then applied the rules of succession under the Hindu Succession Act, 1956, to hold that the suit property devolved on the death of Arumugha to his two sons and two daughters in four equal shares.

7. In this second appeal filed by the fifth defendant, Mr. N.S. Raghavan, his learned counsel, canvassed the correctness of the learned District Judges understanding of the law as applied in Pondicherry both before and after the Hindu Succession Act, 1956.

8. It may be observed by way of preface, that wherever Mitakshara law was being administered in this country according to its ancient texts, succession to ancestral or coparcenary property was by survivorship and not by inheritance. The rule was general in its application, and brooked no exception. It applied, for instance, whether the deceased died leaving undivided brothers or died leaving undivided sons. The rule of survivorship operate in both the cases. The particular reason why, even in the latter kind of case, the rule governed the devolution was because the sons had a right by birth in the ancestral property even during their fathers lifetime. In the territory of Pondicherry, however, the legal position was quite different for a pretty longtime. The textual Hindu taw had yielded to a local variation, wrought, it would seem, by custom and usage. The position which obtained in Pondicherry was summed up by the French writer Sanmer in his well-known work on Hindu Law in the following terms;

Today, by virtue of a more correct interpretation of custom, the theory of coparcenary system between father and sons in respect of the ancestral properties is abandoned in our establishment of Coramandal Coast. It is to the head of the family only, in reality, in the juridical sense of the word the assets, deriving from the ancestor belong and he alone has capacity to exercise, in principle, the right to dispose, which is conferred on him by owners right.

9. That this was the law which was being administered by Courts in Pondicherry is found from a recent application of it in a decision of the Superior Court of Appeal, Pondicherry in Appeal No. 326 of 1964, That Court, consisting of a three member bench of which Maharajan, J. was the President echoed Sanmer with the following passages

Under Hindu Law, as it is in force in Pondicherry, Hindu sons do not acquire any interest in the fathers property by birth whether the property be the self-acquired property of the father or bit ancestral property.

10. In the event, I think, it would be proper to hold that under the Hindu Law as in vogue in Pondicherry all properties held by a father in a joint family are his absolute properties, whatever might be their origin or their modes of acquisition, and all of them devolve on his death in accordance with the law which governs succession to a male Hindus absolute estate. This was the law as administered in Pondicherry when the Hindu Succession Act, 1956, came to be extended to that territory in 1963.

11. Mr. Raghavan then submitted that since Arumugha died in 1966 after the Act came into force in Pondicherry, succession to the suit property must be governed by the proviso to S. 6 of the Act. He recalled that the property was ancestral in character, and Arumugha had left behind him surviving both sons and daughters. According to the learned counsel, this was the kind of situation for which the proviso to S. 6 was enacted.

12. This argument seems to be apparently aimed at reducing, if possible, the plaintiffs decree from one-fourth share to an one-twelfth share, on the principle that some gain to the fifth defendant in this litigation would be better than none. I do not, however, accept the validity of this contention, based on the proviso to S. 6 of the Act, In my view, the section as well as its proviso apply only to cases where a male Hindu dies possessed of an undivided interest in Mitakshara coparcenary property, and not where he died possessed of absolute property, The suit property, as already mentioned, has to be regarded as Arumughas absolute property under the customary Hindu Law of Pondichery. It cannot bear a different character merely on the introduction of the Hindu Succession Act, to that territory. There is no provision in the Act to bring about any such transformation. If, then, the property continues to retain its character as Arumughas absolute property even after the Act, it would follow therefrom that for determining the devolution to the property on Arumughas death the appropriate provision to be looked for in the Act cannot be in S. 6 but only S. 8. Under the latter section, the property of a male Hindu would devolve on his sons and daughters in the absence of any other Class I heirs. And, under S. 10. the sons and daughters, as Class I heirs, would share the property equally as between themselves. The learned District Judge was, therefore, quite right in upholding the plaintiffs suit claim for an one-fourth share in the suit property as purchaser from Muniammal who was one of the four children left by the deceased Arumugha.

13. The judgment and decree of the learned District Judge are accordingly confirmed and this second appeal is dismissed There will however be no order as to costs.