Civil Revision Application No.173 of 1998

19th February, 1999

Petitioner Counsel: M.B. D'COSTA

Cases Cited:
Zacarias Duarte Dominqos Pereira Vs. Camilo Inacio Evaristo Pereira, AIR 1984 Bom. 295 [Para 2]
Pandurang Ramchandra Mandlik Vs. Shantibai Ramchandra Ghatge, 1989 Suppl.(2) Supreme Court 627 [Para 10]

JUDGMENT

JUDGMENT :- The point which arises for consideration in this revision application is whether the appeal against an order in inventory proceedings wherein the valuation of the assets disclosed by the applicant "inventarinate" exceeded Rs.25,000/- prior to 18th August 1998 and exceeds Rs.1,00,000/- since 18th August, 1998 would lie to the High Court or to the District Court.

2. The lower appellate Court by the impugned order dated 11.8.98 passed in Misc. Civil Application No.28/98 placing reliance on the judgment of the Single Judge in the matter of Zacarias Duarte Dominqos Pereira v. Camilo Inacio Evaristo Pereira AIR 1984 Bombay 295 and referring to the Section 22 of the Goa, Daman and Diu Civil Courts Act 1965 (hereinafter called as "Civil Courts Act") has held that the appeal against order dated 23.3.98 of the Trial Court in the instant case, irrespective of being valued at Rs.30,000/- by the petitioner, i.e. inventarinate in inventory proceedings No.15/1993, was maintainable before the District Court.

3. It is the contention of Shri M.B. Costa, learned Advocate appearing for the petitioner that the inventory proceedings are "suits" in broad sense and the decision of the learned Single Judge in the matter of Zacarias Pereira (Supra) was not in relation to the provisions contained in Section 22 of the Civil Courts Act but it was only in relation to the procedure to be adopted for the purpose of the inventory proceedings. The point for consideration in the said case was whether the provisions contained in Civil Procedure Code or those prescribed under the Portuguese Civil Code were applicable to the inventory proceedings and therefore the impugned judgment passed in relation to the section 22 of Civil Courts Act but based on the said decision is bad in law and without application of mind as regards the scope and meaning of the expression "suit" under section 22 of the Civil Courts Act.

4. The section 22 of the Civil Courts Act reads thus :

"Appeal from his decision - In all suits decided by a Civil Judge of which the amount or value of the subject matters exceeds Rs.1,00,000/- the appeal from this decision shall be direct to the High Court."

5. It is to be noted that in 1965, when Civil Courts Act came into force, it provided the upper limit under section 22 to be Rs.10,000/- which was subsequently amended to Rs.25,000/- and by the Goa Act 20 of 1998 the same limit has been fixed at Rs.1,00,000/- which is effective from 10th August, 1998.

6. On plain reading of the section 12 of the Civil Courts Act, it is apparent that the same refers to all types of suits without qualifying the expression "suit" to any particular type of the proceedings. What is relevant thereunder is that the suit is to be decided by a Civil Judge. The expression "Civil Judge" has not been defined under the Act. But it is evident from other provisions contained in the said Act that Civil Judges are those Judges who function under the jurisdiction of a District Judge in each district. The section 15 of the Civil Courts Act provides that there shall be so many civil Courts subordinate to a District Court as the Administrator may, from time to time decide. The Section 16 provides that the Judges of such subordinate Courts shall be appointed by the Administrator and shall be called "The Civil Judge." Undisputedly, the inventory proceedings are conducted before and decided by the said Civil Judges. It is also not in dispute that every application for initiating inventory proceedings should disclose the probable value of the assets of the deceased on whose death the inventory proceedings are sought to be initiated. As regards court fees it prescribes a fixed amount of court fee while initiating the said proceedings but also provides that at the end of the proceedings the parties have to pay "custans" i.e. costs which naturally include the court fees.

7. It is true that the learned Single Judge of this Court in the matter of Zacarias Pereira (Supra) has held that inventory proceedings are not suits and they are distinct and separate proceedings from the suits as is otherwise understood by the expression "the suit" under Civil Procedure Code 1908. The learned Single Judge had observed therein that:

"It is no doubt true that under the Indian Civil Procedure Code "suit" has not been defined but there are parties opposing each other. Unlike a suit, where there is a plaintiff on one side and defendant on the other, in inventory proceedings all are only interested parties and either they are heirs or legal representatives or beneficiaries under gift or legatees under a Will. In inventory proceedings there is no decree passed. Once it is held that there is no decree passed in inventory proceedings, it is clear that a final order made in the inventory cannot be executed under Order 21 of Indian Civil Procedure Code." (Emphasis supplied).

It is therefore apparent on the face of the said judgment of the learned Single Judge that comparison between the inventory proceedings and a suit was for a limited purpose to find whether inventory proceedings can be considered to be "the suit" within the meaning of said expression under the Civil Procedure Code for the purpose of its applicability to the procedure to be followed for conducting the inventory proceedings and not for any other purpose. The discussion in the said judgment further discloses that the point for consideration in the said decision was to find out whether an order passed in the inventory proceedings can be executed under the provisions of Order XXI of Civil Procedure Code or not. It was in that limited context and the purpose, that the expression "the suit" was tried to be understood and interpreted in the said case.

8. It is true that in inventory proceedings sometimes there may be number of heirs of the deceased person and at times there may be only one. Nevertheless, the person who approaches the court claiming right to the estate left behind by the deceased person seeks the approval of the Court for recognisation of his right to such estate. In other words, the applicant approaches the Court to get declaration of his ownership right to the estate left behind by the deceased person. The criteria to decide whether the proceedings are of the nature of the suit or not need not necessarily be that the parties should litigate against each other. Even in Civil suits, some times only one party appears. For example, a party can file a suit against unknown heirs of a particular person and nobody may appear claiming to be the heirs of such person; however, the party approaching the Court may succeed in getting relief in his favour if he is able to establish and prove his case, irrespective of the fact that nobody may appear to oppose his claim in the proceedings. Similarly, in a partition suit, one co-owner may approach the court against several co-owners seeking the relief of partition of the property by metes and bounds as per the shares of each co-owner and the suit may be decreed as prayed for if none of the co-owners object to the same. In that case, even if other co-owners are on the opposite side i.e. on the side of the defendants, practically the suit happens to be one by all the parties. The relief in such suit is in favour of all the parties, the plaintiff as well as the defendants. Considering the fact that an individual seeking inventory of the estate of the deceased is not entitled for declaration on mere asking for it and it is necessary for him to produce the list of assets left behind by the deceased with proof of ownership of deceased in respect of those assets and that of his or her heirship either to the exclusion of others or with the others, it cannot be said that the inventory proceedings are a mere proceedings where no adjudication of right and claim is done. Being so, the decision of the learned Single Judge in the matter of Zacarias Pereira (Supra) is of no assistance to decide whether an inventory proceeding is "the suit" within the meaning of the said expression under section 22 of the Civil Courts Act or not.

9. Moreover the said expression "suit" has not been defined in the Civil Courts Act. The Black's Law Dictionary defines the expression "suit" to mean a generic term, of comprehensive signification, referring to any proceedings by one person or persons against another or others in a Court of justice in which the plaintiff pursues, in such court, the remedy which the law affords him for the redress of an injury on the enforcement of a right, whether at law or in equity. The definition further explains that the term "suit" is generally used for the term "action" which includes both actions at law and in equity. The Oxford Dictionary (ninth edition) defines the expression "suit" as an initial action for enforcement of a claim. The term "action" is defined in Black's Law Dictionary to mean "enforcing one's rights." There cannot be a dispute that inventory proceedings are initiated to exercise right to inherit the estate left behind by the deceased ancestor of the claimant.

10. The Apex Court in the matter of Pandurang Ramchandra Mandlik and anr. V. Shantibai Ramchandra Ghatge and ors. 1989 Suppl.(2) Supreme Court 627 while considering the scope of the principle on res judicata under section 11 of the Civil Procedure Code has observed thus:

"It is true that Section 11 is now made applicable by the explanations and interpretation to certain proceedings giving more extensive meaning to the word "suit". In its comprehensive sense the word "suit" is understood to apply to any proceeding in a Court of justice by which an individual pursues that remedy which the law affords."

Considering the above observation by the Apex Court in relation to the expression "suit" used in section 11 of the Civil Procedure Code, it is abundantly clear that the term "suit" would generally mean any proceedings in a Court of law by which an individual pursues the remedy which the law affords to him or her as the case may be.

11. As already seen above, the inventory proceedings are initiated to enforce the remedy available under the law in relation to right of inheritance. To enforce the claim of inheritance to the estate left behind by the ancestors of a party or parties, it is necessary to have legal recognition to the claim of the party or parties as regards the ownership of the estate left behind by the ancestors and the same can be obtained by instituting proper inventory proceedings in the court of law.

12. Therefore what follows from the above, is that the inventory proceedings are "suits" for the purpose of section 22 of the Civil Courts Act and therefore the appeal against order in inventory proceedings where the value of the assets exceeds Rs.1,00,000/- would lie to the High Court. The point for consideration is therefore, answered accordingly.

13. In the result, the petition succeeds and the impugned order is hereby quashed and set aside. Rule is made absolute with no order as to costs.

Petition allowed.