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Madras HC explains Maintainability of Suit of Partition of Dissolved Community Property

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Madras Hc Law Insider

Mitali Palnitkar

Published On: January 14, 2022 at 14:37 IST

The Madras High Court concluded that the suit filed for partition and separate possession of property in India is maintainable as per the Indian laws. The liquidation was not maintainable under Article 1444, French Civil Code.

The Division Bench hearing the Case comprised of Justices T Raja and D Bharatha Chakravarty. The Appellant was represented by Advocate J Kumaran and the Respondent (wife) was represented by Advocate T Ramachandran. An Appeal was filed by a Husband against the Judgment and Decree by Family Court, Pudukottai under Section 96 of Code of Civil Procedure (CPC).

In the Case, the husband and wife were French nationals for whom French Civil Code was applicable as per Lex Patriae. As per the French law, the marriages are based on prenuptial contract or governed by Community regime.

Under Article 1441, if the marriage is dissolved, the parties have the right to separation of property as per rules in Articles 1401-1492, French Civil Code.

The disputed property is in Pondicherry which is a part of Community property as was bought during the subsistence of marriage. The High Court held that French law was applicable and was the Lex Causae.

But the Appellant contended that Article 1444 mandated that either of the parties shall resort to the proceedings of liquidation within 3 month after divorce, before the Notaries in France but the wife filed a Suit eight years after the divorce in Indian Court.

Later, Court stated that Indian law was Lex Causae and not French law. It stated that Partition was a rule of procedure and hence Lex Fori (law of forum) shall be applicable. It also emphasized that Lex Situs (law of land) shall be applicable, where the property was situated. It referred to Case of Sandana Rene Lucien Joseph v Sandana Vincent Maria Anthony where it was held that Lex Situs would apply in relation to immovable property. Therefore, the Suit of Partition was maintainable.

The parties disagreed over whether the wife should have approached the Civil Court instead of Family Court but as matter was related to family even though it was a divorced couple, Family Court had the Jurisdiction.

The Trial Court’s findings were confirmed by the High Court which entitled filing of a Partition Suit and claiming half share in the dissolved Community Property. The Court held that the wife was entitled to a preliminary decree of partition.