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In the High Court of Bombay at Goa
U.V. BAKRE, J.
Saraswati Suryaji Mamlekar & Others
Versus
Suryaji Shankar Mamlekar & Others
Second Appeal No. 129 of 2013
Decided On: 02-04-2014
Partition - Suit Properties - [C.P.C., Order XX Rule 18(2)] - The court held that the suit for partition was not maintainable in the absence of Inventory Proceedings to establish the shares of the parties. The shares of the parties were not admitted by the defendants, and there were other interested parties in respect of the suit properties. The suit was dismissed.
Fact of the Case:
The plaintiffs filed a suit for partition of ancestral properties, claiming specific shares for each party. The defendants denied the shares and argued that the suit was not maintainable without Inventory Proceedings to establish the shares of the parties.
Finding of the Court:
The court found that the shares of the parties were not admitted by the defendants, and there were other interested parties in respect of the suit properties. The court held that the suit was not maintainable without Inventory Proceedings and dismissed the suit for partition.
Issues: The main issue was whether the suit for partition was maintainable in the absence of Inventory Proceedings to establish the shares of the parties.
Ratio Decidendi: The court held that since the shares of the parties were not admitted by the defendants and there were other interested parties in respect of the suit properties, the suit was not maintainable without Inventory Proceedings to establish the shares of the parties.
Final Decision: The appeal was dismissed, and the suit for partition was also dismissed.
1. Heard Mr. Usgaonkar, learned Counsel appearing on behalf of the appellants and Mr. Ramani, learned Counsel appearing on behalf of the respondents.
2. This Second Appeal has been directed against the Judgment and Decree dated 12/04/2013 passed by the learned District Judge-I Panaji (First Appellate Court) in Regular Civil Appeal No.485 of 2010. By the impugned Judgment, said appeal was allowed with the result that the Judgment, Order and Decree dated 01/11/2010 passed by the learned Civil Judge, Junior Division, Ponda (Trial Court) in Regular Civil Suit No. 155/2000/B (New): Regular Civil Suit No.14/1989 (Old) came to be quashed and set aside and consequently the suit for partition filed by the plaintiffs stood dismissed.
3. The present appellants were the plaintiffs in the said Civil Suit whereas the respondents were the defendants therein. The parties shall hereinafter be referred to as per their status in the said suit.
4. The plaintiffs had filed the said suit for declaration that they are entitled for half share i.e. 5/10th share and that defendants no.2 to 12 and the heirs (children) of deceased defendant no. 3 or 13 i.e. Smt. Kumud Shirodkar and her late husband Shri Ranganath Shirodkar, namely defendants no. 13(a) and 13(b) are entitled for 1/10th share in the suit properties as shown in Annexure-II and consequent partition of the suit properties in metes and bounds. The plaintiffs further prayed to permanently restrain the defendants, their agents, servants etc. from interfering in any manner with the properties and premises to be allotted to the plaintiff no.1 or any part thereof and for direction to the defendant no.1 to give to the plaintiff no.1 her half share in the car bearing registration no.GGC-26 and scooter bearing registration no. GGF 879 or in the alternative to pay the market value of her share of the same.
5. The case of the plaintiffs in short was as follows:
The plaintiff no.1 is the legally wedded wife of deceased defendant no.1 and the marriage between them was solemnized on 27th May 1947, in the Office of the Civil Registrar of Goa Velha, Goa against entry No. 290. The name of the plaintiff no.1 before her marriage was Bhanumati Naik Shirodkar. Along with the defendants, the plaintiffs are co-owners of the suit properties which bear new survey nos. 122/7, 138/0, 139/0, 140/0, 142/0, 147/3 and 147/4. The suit properties originally belonged to late Suryaji Shankar Mamlekar, who was the grandfather of the deceased defendant no.1. Shri Shankar Suryaji Mamlekar was the father of deceased defendant no.1 and that said Shankar Suryaji Mamlekar and Vaman Suryaji Mamlekar were brothers being the sons of late Suryaji Mamlekar. The deceased defendant no.1 and the plaintiffs are entitled to half i.e. 5/10th share in the suit properties whereas the other son of late grand father (Suryaji) by name Vaman Mamlekar, since deceased is entitled to the other half share i.e remaining 5/10th share in the suit properties. Late Vaman Suryaji Mamlekar was survived by following persons having 1/10th share each :
I. Late Prabhakar Vaman Mamlekar survived by his wife Savitri P. Mamlekar who had six children Viz. (i)- Malu Prabhakar Mamlekar; (ii)- Kushendra Prabhakar Mamlekar; (iii)-Vishwas Prabhakar Mamlekar; (iv)- Vasanti @ Aruna Prabhakar Mamlekar; (v)-Suvarna Prabhakar Mamlekar; and (vi) Jyoti Prabhakar Mamlekar, who are all entitled to 1/10th share each in the suit Property.
II. Late Dilip Vaman Mamlekar and his wife Late Jayawanti D. Mamlekar survived by their four children viz. (i)- Diwakar @ Shailesh Dilip Mamlekar; (ii)- Rudresh Dilip Mamlekar; (iii)-Rajesh Dilip Mamlekar; and (iv)- Rupa @ Reena Dilip Mamlekar, who are also entitled to 1/10th share in the suit Properties.
III. Ramesh Vaman Mamlekar (defendant no.2) married to Smt. Kunda alias Laxmi Mamlekar (defendant no.3) who are entitled to 1/10 share in the suit properties.
IV. Smt. Kumud V. Mamlekar married to late Ranganath Shirodkar and her children
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