A suit for partition and division of a common and undivided property is not maintainable unless the rights of the parties have been previously established and determined either judicially or by a competent public deed.

Headnote:
PARTITION SUIT - INVENTORY PROCEEDINGS - ARTICLES 2012, 2013, 2064 OF THE PORTUGUESE CIVIL CODE - A suit for partition and division of a common and undivided property is not maintainable unless the rights of the parties have been previously established and determined either judicially or by a competent public deed. In the instant case, where the ancestors of the petitioners and respondents had jointly purchased the suit property in equal shares, but subsequently the widow of one of the purchasers had purportedly willed her disposable share in favor of the petitioners, the partition could not be done in terms of the shares purchased by the ancestors until the will had been declared null and void.
Fact of the Case:

The petitioners, defendants Nos. 4 and 5 in a special civil suit for partition and division of a common and undivided property, filed a written statement raising a preliminary objection that the suit was not maintainable without filing inventory proceedings as prescribed by law. The learned trial Judge framed issues 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.
Finding of the Court:

The court held that the impugned Order, which held that a suit for partition simpliciter lies even if the rights of the parties had not been previously determined, cannot be sustained and is liable to be upset. The court clarified 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.
Issues: Whether a suit for partition and division of a common and undivided property is maintainable without filing inventory proceedings as prescribed by law.
Ratio Decidendi: The court relied on Articles 2012, 2013, and 2064 of the Portuguese Civil Code, which provide that a partition can be made by a public deed or by inventory proceedings, and 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.
Final Decision: The court allowed the revision petition, quashed and set aside the impugned Order, and answered Issue No. 2 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.

JUDGMENT - Dr. E.S. DA'SILVA, J.:---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 undivi

Click Here to Read the rest of this document