2012(3) ALL MR 633
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)

S.C. DHARMADHIKARI, J.

Smt. Joaquina D'costa (Deceased) & Ors. Vs. Shri Alex D'costa (Deceased) & Ors.

Second Appeal No.43 of 2003

16th March, 2012

Petitioner Counsel: Mr. M.B. DA COSTA Ms. K. DIVGIKAR
Respondent Counsel: Mr. R.G. RAMANI

Suit for partition - Maintainability - Joint acquisition of property by two parties - Each claiming to be entitled to half share and physical division by metes and bounds - Whether physical partition was possible unless there was predetermination of shares - This can be decided only after oral and documentary evidence was led by both parties - Threshold dismissal of suit, held, was not proper. (Para 15)

Cases Cited:
Shri Cruz Fernandes and anr. Vs. Smt. Gregorina Estefania Sofia Fernandes alias Sofia Fernandes and anr., Civil Revision application No.158 of 1990, Dt.9/12/1991 [Para 7]


JUDGMENT

JUDGMENT :- 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 judicial decree in the competent inventory proceedings.

9.Both the Courts have held that the instant suit is not maintainable in the absence of such prior determination either by judicial decree or by inventory proceedings.

10.Mr. M.B. Da Costa, learned Senior Counsel appears on behalf of the appellants and submits that the substantial question of law that arises in this second appeal is based on an erroneous application of the judgment of this Court in the facts of the instant case. This judgment was rendered in the factual backdrop where the relief of partition was claimed in respect of a property which was inherited from common ancestors. Once the property belongs to a common ancestor and the shares are not ascertained and decided, then, physical partition of such a common and undivided property is not possible, unless the rights of the parties had been previously established and determined. That judgment will have no application when the right of physical partition is claimed in relation to a property which is not inherited from a common ancestor but which property is jointly and commonly purchased and the heirs of one co-owner want to physically divide such property so that enjoyment of rights in respect of such common property of that co-owner is independently possible. In such circumstances, according to him this decision could not have been applied to dismiss the appellants' suit.

11.Mr. Ramani appears on behalf of the respondents no.1 and 2 (original defendants) and submits that the judgment of the learned Single Judge of this Court would hold good at least to the extent of the mundcarial house stated to be existing and which house belongs to common ancestors, therefore, It is not as if the law laid down by this Court can have no application to the present case.

12.For proper appreciation of these contentions, a reference to the averments in the plaint is already made. The courts below should have seen the plaint in its entirety. It is very clearly stated in the plaint itself that there is one sale deed in relation to the suit property. However, that property is purchased by late husband of plaintiff no.1 and father of other plaintiffs and the defendant no.3 jointly with their father-in-law late Minguel along with his brother defendant no.1, Shri Alex D'Costa. They purchased a plot of land admeasuring 2085 metres designated as plot no.17 in the sub-division of the property known as "UCOL" situated at Panchawadi village, Taluka Ponda.

13.Plot no.17 purchased by late Minguel and defendant no.1 was a separate and distinct property and that it is described in para 2 and thereafter further allegations are made. In para 8 it has been stated that ever since the purchase of the suit property the same is enjoyed in common namely by the plaintiffs along with defendants no.3 and 4 having half share and defendants no.1 and 2 having the other half share in the suit property. However, development of the property sought to be divided had become difficult unless consent is shown by the co-owners. In such circumstances this was a case of co-ownership of a common property. The ownership was joint and parties came to the court stating that the property be divided physically half into half so that the co-sharers can enjoy separate shares and independently have the fruits of their property. That is how the relief of partition was claimed into two halves separated by metes and bounds. The shares were pre-determined and only physical partition was sought with the assistance of the Court. The law laid down by this Court in the aforesaid decision can have no application, therefore, in such a situation.

14.That decision was rendered in the context of a Special Civil Suit filed by the respondents no.1 and 2 before this Court against the petitioners as well as the other respondents no. 3 to 6 praying for a decree of partition and division in their favour, which was a land and a residential house, which was claimed to be belonging to them as co-owners. 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 plaintiff's mother made a will on 22/12/1988 with regard to her disposable share in favour of the petitioners before this Court. This being the admitted and factual position, this 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. This Court in the factual backdrop of the said case noted and, in my opinion 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.

15.Such is not the admitted case before me. 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 this 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 mis-application of the law laid down by this Court in the aforesaid decision.

16.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 in the above noted decision of this Court can enable threshold dismissal of the instant suit that I have narrated the case set out by the appellants in the plaint and the objections thereto by the contesting defendants no.1 and 2. Beyond that I have not expressed any opinion on the merits of the case or on the maintainability of the suit, particularity, in relation to the mundcarial house which is alleged to exist in a portion of the suit property. 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.

Ordered accordingly.