Bombay High Court
Cruz Fernandes And Ors. vs Gregorina Estefania Sofia Fernandes ... on 9 December, 1991
Equivalent citations: 1991(4)BOMCR400
JUDGMENT E.S. Da'silva, J.
1. This revision is directed against the Order of the learned Civil Judge, Senior Division, Margao, dated 18th August, 1990, whereby he has answered in the negative the preliminary issue framed in the Special Civil Suit No. 158/88/A as to whether the defendants Nos. 4 and 5 in the suit had proved that the suit was not maintainable without filing inventory proceedings.
2. A special civil suit bearing No. 158/88/A was filed by the respondents Nos. 1 and 2 against the petitioners as well as the respondents Nos. 3 to 6 praying for a preliminary decree for partition and division in their favour in respect of the suit property "Matyamada", including the residential house No. 482 situated at Orel-Assolna and allegedly claimed to belong to all of them in co-ownership. The petitioners as defendants Nos. 4 and 5 filed their written statement raising however a preliminary objection that no such suit was lying unless partition of the shares of the respective owners had been done by inventory proceedings as prescribed by law. Accordingly the learned trial Judge framed issues and the subject-matter of this objection was incorporated in the issue No. 2 which was drafted as follows:--
"Whether the defendants Nos. 4 & 5 prove that the suit is not maintainable without filing inventory proceedings?"
3. Thereupon the learned Judge, after hearing both the learned Counsels for the parties, passed the impugned Order rejecting the petitioners' plea and held that inventory proceedings had to be compulsorily filed only when one of the parties to the division of inheritance of properties were of the character mentioned in Articles 2012 and 2064 of the Civil Code. The learned Judge further observed that since admittedly it was no one's contention that in the present case any of the parties was fulfilling the said character, the submission of the Counsel for the petitioners could not stand in view of the provisions of Article 2013 of the Civil Code which provides that a partition can be made by a public deed. As such it was not correct to say that inventory proceedings could determine the rights between the parties once the parties were able to divide any property of the estate of their ancestors by way of a public deed.
4. The main grievance of Shri Alvares, learned Counsel for the petitioners, is that the learned Judge has invoked wrong provisions of the Portuguese Civil Code which are totally inapplicable to the case and rejected the plea of the petitioners that no suit for partition was maintainable in this case by failing to realise that when the law prescribe as particular mode for making a partition there is no other way of complying with the legal requirements. In the instant case it is an admitted position that consequent upon the extension of the Code of Civil Procedure, 1908, the provisions of the Portuguese Civil Code concerning the partition of the properties by way of inventario were expressly saved and as such a suit for division of the properties would be available to the parties only after their respective rights in the common estate have been determined by a partition done in inventory proceedings.
5. Shri Ramani, learned Counsel for the respondents, while opposing this contention of Shri Alvares has urged that the question of filing inventory proceedings would arise only when there was a case of partition of the estate of a common ancestor of the parties in dispute. Shri Ramani has further urged that in the instant case the property has not been inherited from any ancestor of the parties in the suit but instead had been purchased by the ancestors of the petitioners and respondents in equal shares, their share being therefore, already determined, the reason why there was no question of any inventory proceedings to be instituted prior to the filing of the partition suit.
6. There is some merit in the submission of Shri Alvares. It is a well settled law that no suit for physical partition of a common and undivided property lies unless previously the rights of the parties had been established and determined either judicially or by a competent public deed. For this purpose either the parties have to enter into an agreement and execute a deed by acknowledging their rights to the property in terms of Article 2013 of the Portuguese Civil Code or resort to inventory proceedings to get a judicial declaration of their rights.
7. In the instant case it is seen that although the ancestors of the petitioners and the respondents have jointly purchased the suit property in equal shares, however, subsequently the widow of one of the purchasers, the plaintiff's mother, has purportedly willed on 22-12-1988 her disposable share in favour of the petitioners. Being so it is obvious that there could not be any partition in terms of the shares purchased by the ancestors of the petitioners and respondents until the will has not been declared null and void failing which the partition has to be done of the additional rights acquired by the petitioners to the property in terms of the said will. During the course of arguments I inquired from Shri Ramani, learned Counsel for the respondents Nos. 1 and 2, who are the plaintiffs in the suit, whether they would not consider withdrawing the suit in order to file a fresh suit for cancellation of the will or to appropriately amend the suit so as to delete the prayer for partition. Shri Ramaji, however, requested the Court to pass a judicial order adjudicating the point of maintainability of the suit for partition in the absence of any determination of the parties' rights to the property either by public deed or by judicial decree.
8. From the view I am taking, in my judgment, the present suit for partition and cancellation of the will inasmuch as the case of action being different, such a suit should not ordinarily lie. The remedy available for the respondents Nos. 1 and 2 should be to get first the will annulled and only then press partition of the common property and house in terms of the rights to be established and allotted to the parties by way of a public deed or by taking recourse to inventory proceedings wherein a judicial decree can be obtained for this purpose.
9. This being the case the impugned Order which appears to hold that a suit for partition simpliciter lies even if the rights of the parties had not been previously determined cannot be sustained, being therefore liable to be upset.
10. In the result this revision is allowed and the impugned Order, dated 18th August, 1990 is hereby quashed and set aside. Issue No. 2 is accordingly answered in the affirmative with the clarification that the suit is not maintainable for the failure of the plaintiffs in not previously getting their rights to the suit property duly determined either by a public deed or by a judicial decree in the competent inventory proceedings. There will be however no order as to costs.