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2012 Supreme(Bom) 576
Bombay High Court
S. C. DHARMADHIKARI
Joaquina DCosta(deceased)
Vs
Alex DCosta, (deceased)
Decided On : 16/3/2012
Headnote:Civil Procedure Code, 1908 - Section 100 - Second Appeal - Challenging judgment and decree of First Appellate Court, confirming that of trial Court, dismissing appellant’s suit as not maintainable - Contention that substantial question of law arises, based on an erroneous application of Judgment of this Court - Suit property jointly and commonly purchased - Not Inherited from a common ancestor - Right of physical partition claimed, possible -Judgment relied on by respondents not attracted to dismiss suit for partition - Case is of joint acquisition of a property by two parties.
Held - Course adopted by Courts below is erroneous as based on misreading and misapplication of law laid down by the Court in aforesaid decision - Threshold dismissal of suit not warranted - Impugned judgment of First Appellate Court dated 21.9.2001 and dismissal of unit by trial Court, set aside - Suit restored - Appeal allowed.
In such a suit an objection was taken to its maintainability. That was on the basis that although the ancestors of the petitioners and respondents had jointly purchased the property in equal shares, however, subsequently the widow of one of the purchasers namely the plaintiffs mother made a will on 22.12.1988 with regard to her disposable share in favour of the petitioners before the Court. This being the admitted and factual position, the Court held that there could not be any partition in terms of the shares purchased by the ancestors of the petitioners and the respondents until the will had become null and void. The Court in the factual backdrop of the said case noted and, correctly, that there had to be some prior determination of the rights and shares in respect of such a property. Either it should be a valid will or upon it being declared as null and void, in terms of the applicable law of succession and rule laid down therein.
Such is not the admitted case before Court. This is not a case of a common ancestor’s property and where a Will is pressed into service. The case is of joint acquisition of a property by two parties, each claiming to be entitled to half share and praying for physical division by metes and bounds in accordance with the predetermined share. Whether the law laid down by the Court in the said decision would apply in such a suit could not have been merely decided on the basis of the averments in the plaint and without affording the parties an opportunity to prove the case by leading on oral and documentary evidence. Therefore, the question whether the suit was not maintainable at the threshold or whether the suit claim could have been allowed and granted on the basis of the pleadings of the plaintiff or whether there was substance in the claim of the defendants that no physical partition was possible unless there was a predetermination of shares made are all matters which could be decided only after oral and documentary evidence was led by both parties. Threshold dismissal of the suit was not at all warranted and the course adopted by the Courts below is erroneous as that was based on the misreading and misapplication of the law laid down by this Court in the aforesaid decision.
In the result this second appeal succeeds. The judgment of the lower appellate Court dated 21.9.2001 in Regular Civil Appeal No. 178/2000 and the dismissal of Regular Civil Suit No. 75/97/B by the trial Court are set aside. The trial Court will now allow the original plaintiffs to lead oral and documentary evidence in the suit and equally the contesting defendants are at liberty to do so. It is once again made clear that it is only for the purpose of finding out as to whether the law laid down iii the above noted decision of the Court can enable threshold dismissal of the instant suit that Court has narrated the case set out by the appellants in the plaint and the objections thereto by the contesting defendants No. 1 and 2. All contentions of both sides in respect thereof are kept open. The trial Court will now try the suit as expeditiously as possible and since it is a suit of the year 1997 make endeavour to dispose the same with such priority within six months from the receipt of the copy of this judgment.
S.C.Dharmadhikari, J.
1. This second appeal impugns the decree of the lower appellate court confirming that of the trial court dismissing the appellants' suit on a preliminary ground of maintainability. The appellants are the original plaintiffs and the respondents are the original defendant nos. 1 to 4. respondents no.1 and 2 (original defendant nos. 1 and 2) alone are contesting the claim in the plaintiffs suit no.75/97/b.
2. On the pleadings of the parties the trial court framed an issue bearing no.7 in the following terms: "whether the defendant nos.1 and 2 prove that no suit for partition can be effected unless share of each co-owner is determined and after initiating inventory proceedings?."
3. Very few facts are required to be noted to decide the substantial question of law raised in this appeal. The parties shall be referred to by their original description in the trial court.
4. regular civil suit no.75 of 1997 was laid in the court of the civil judge, senior division at ponda by five plaintiffs and against the defendants who were four in number, claiming a decree to divide the suit property into two halves including the ancestral house bearing no.92/1 and 92/2 in such a way that the fruit bearing trees and non-fruit bearing trees are apportioned equally, to the extent possible to the share of the plaintiffs along with defendant nos.3 and 4 on one side and the defendant nos.1 and 2 on the other side. Thereafter, they sought consequential reliefs as well as preliminary decree.
5. The suit claim is based on the fact that the suit property which is registered with the sub-registrar at ponda under no.163 was acquired by a sale deed dated 24/4/1976 by the late husband of plaintiff no.1 and father of other plaintiffs namely nos.2 to 5 and defendant no.3 and their father-in-law late minguel piedade d'costa along with his brother defendant no.1 namely mr. Alex d'costa. It is stated that this property which is more particularly described in paragraph no.1 of the plaint has been acquired by several persons under one sale deed. However, plot no.17 purchased by the late minguel piedade d'costa and the defendant no.1 was a separate and distinct property by itself and bounded on the east by hill belonging to the vendors after which lies a a small portion of land admeasuring 130 sq.metres which is stated to be a part of plot no.17.
6. For the purpose of record of rights of the suit property under survey no.77/11, the names are also erroneously recorded and one constancio jose xavier d'costa's name has been recorded as occupant. He was the elder brother of late minguel d'costa and the defendant no.1. He died on 1.2.1994 as a bachelor. Subsequently, there is a reference to the mundacarial house and the plantation etc. And what has been pleaded, is that since the property is common and undivided it becomes difficult for proper development of the suit property in the absence of consent of other co-owners and therefore in the interest of both the sides to have the suit property partitioned into two halves and separate the same by metes and bounds, allotting half to the share of the plaintiffs and defendants no.3 and 4 and the other half to the defendants no.1 and 2 that the partition be effected.
7. The written statement was filed by the contesting defendants no.1 and 2 and who are the respondents contesting the present second appeal as well. In that written statement a preliminary objection was raised as to the maintainability of the suit and that was based on the judgment of this court in the case of shri cruz fernandes and anr. Vs. Smt. Gregorina estefania sofia fernandes alias sofia fernandes and anr., passed in civil revision application no.158 of 1990 decided on 9/12/1991.
8. The preliminary objection is that no suit of such a nature for physical partition of a common and undivided property lies unless previously the rights of the parties have been established and determined by a competent public deed of partition or by ju
