SABASTIAN ANTONIO TEXEIRA Vs. RODOLF MINGUEL TEXEIRA

JUDGEMENT

(1.) THE plaintiffs, who are Christians by religion, have filed the present suit for partition of certain properties belonging to the estate of one Alex Texeira. They have also in one of the prayers in the plaint stated that if necessary the estate of the deceased Alex be administered by and under the directions of this Court. By paragraph 1 of the plaint the plaintiffs have alleged that on or about 15th November, 1898 one Alex Texeira died intestate in Bombay leaving him surviving as his only heirs and next of kin according to law his widow Anna, three sons and two daughters by the said Anna. They have further alleged that the deceased Alex Texira left immoveable properties mentioned in Ex. A to the plaint and that upon the death of the said deceased the said Anna and his three sons and two daughters became entitled to the said estate in shares mentioned in that paragraph. In several paragraphs of the plaint thereafter the deaths of some of the heirs of Alex Texeira have been referred to as also the fluctuations in the shares of the different heirs of Alex Texeira have been specified. A pedigree of the family with Alex Texeira as the common ancestor has also been annexed to the plaint. By paragraph 6 the plaintiffs have alleged that since the death of the said deceased and at all time material to the suit the persons for the time being entitled to and interested in the estate of the said deceased had enjoyed the rents and profits thereto. They have further alleged that the said properties were in the first instance managed by Sabatian Antonio Texeira (1st plaintiff), Peter Antonio Texeira (2nd plaintiff) and Anna (Original 5th plaintiff) from the year 1931 to middle of the year 1942. They have then alleged that since the middle of the year 1942 the 1st defendant had been managing the said properties for and on behalf of the persons so interested but had failed and neglected to render proper accounts of such management though called upon to do so. The plaintiffs have thereafter referred to the correspondence that had ensued between then and defendants Nos. 1 to 7, in course of which the plaintiffs had called upon defendants Nos. 1 to 7 to render proper accounts of their management of the said properties and to pay them their share of the net income of the said properties and to come to a partition of the said properties by sale and distribution of the net sale proceeds thereof. The defendants, in reply to the claim made by the plaintiffs, by their attorneys' letter dated 28th August, 1950 alleged that the properties moveable as well as immovable belonging to the said deceased had been completely and finally divided between the two branches of the family consisting the said Antonio and the said Minguel and that the plaintiffs and defendants Nos. 8 and 9 as representing the branch of the said Antonio had been given immoveable properties at Maraoli and Kurla and that defendants Nos. 1 to 7 as representing the branch of the said Minguel had been given the properties situate at Antop Hill, Bombay. It was further alleged by defendants Nos. 1 to 7 in the letter in reply that since the death of the said Mingueal they had been in open uninterrupted and continuous possession and enjoyment of the immoveable properties which had come to their share.

(2.) IN the next paragraph of the plaint the plaintiffs have stated that they along with defendants Nos. 8 and 9 were entitled to the shares in the estate of the deceased Alex particulars whereof are given in paragraph 8 of the plaint and that they were desirous of having the properties left by the said deceased Alex including the said immoveable properties described in Ex. A to the plaint partitioned by and under the directions of this Court and, in order that the said purpose may be served the plaintiffs submitted that all accounts might be taken, inquiries made and directions given. In particular the plaintiffs have stated in that paragraph that the 1st defendant and/or the branch of the said Mingueal represented by defendants 1 to 7 were liable to tender an account of the rents and profits of the said property from the middle of the year 1942 and that the plaintiffs were entitled to and claim interest on the amounts from time to time found due and payable by defendants Nos. 1 to 7 or any of them to the plaintiffs and defendants Nos. 8 and 9 at the rate of 6 per cent. Per annum from such dates and on such amounts as were withheld from time to time.

(3.) BY paragraph 8 of the plaint, the plaintiffs have alleged that defendants Nos. 1 to 7 were interested and had in fact denied the title of the plaintiffs and defendants Nos. 8 and 9 and 10 to 21 to the said properties described in Ex. A to the plaint and prayed that, if necessary, the estate of the deceased Alex might be administered by and under the directions of this Court. The plaintiffs submitted in that paragraph that the share coming to the branch of the said Antonio in the estate of the said deceased Alex on partition and/or in the course of administration be ascertained, paid and/or delivered or otherwise secured to the plaintiffs and defendants Nos. 8 and 9. The plaintiffs then have set out the respective shares to which they and defendants Nos. 8 and 9 were respectively entitled to in the estate of the deceased Alex. The plaintiffs thereafter have proceeded to state that they were also desirous that the share coming to them and defendants Nos. 8 and 9 should also be partitioned as between the plaintiffs and defendants Nos. 8 and 9 and defendants Nos. 10 to 21 intrer se in accordance with their respective shares. They submitted that the said properties were not capable of that the said properties were not capable of division by metes and bounds and that the same might therefore be partitioned between the parties entitled thereto according to their respective shares by sale of the said properties under the directions of this Court.