SURESHCHANDRA DATTU SINAI NADKARNI Vs. DATTU SINAI NADKARNI

JUDGEMENT

(1.) The petitioners who are defendants in Special Civil Suit No. /2003/a pending in the Court of the Civil Judge, Senior Division at Quepem, by the present revision application assail the Order dated 11th September, 2003 passed by the Civil Judge S. D. , Quepem dismissing the application dated 28. 4. 03 filed by the petitioners under Order 7 Rule 11 of C. P. C. The parties shall hereinafter be referred to as they appear in the cause title of the suit.

(2.) The plaintiffs filed the above suit against the defendants for partition of certain properties by metes and bounds, for separate possession and for recovery of a sum of Rs. 10,00,000/ with interest thereon. In the plaint the plaintiffs averred that the plaintiff and defendant No. 1 are the sons of the late Dattu Mablu Sinai Nadkarni and defendant No. 2 is the wife of defendant No. 1. It has been further stated that deceased Dattu Nadkarni was the owner of four properties mentioned in the plaint ('the suit properties'). It has been further stated that the defendant No. 1 started managing the suit properties after the death of the father of the plaintiff and appropriating its income without sharing anything with the plaintiffs. Upon the defendants being served, an application purporting to be under Order 7, Rule 11 of C. P. C. was filed on the ground that since the suit was mainly for partition of the suit properties and since the plaintiffs had not relied upon any Inventory proceedings or on any public deed determining the shares of the parties, the plaint was liable to be rejected since it did not disclose any cause of action. The same was contested by the plaintiffs and after hearing both sides, the trial Court by the impugned order dismissed the application. The trial Court held that the shares of all the parties are fully established and therefore the plaint was not liable to be rejected. Reliance was placed by the defendants upon the Judgment of this Court in the case of Cruz Fernandes and his wife v. Smt. Gregorina Estefania Sofia Fernandes and others reported in 1991 (4) Bombay C. R. 400.

(3.) Mr. Usgaonkar, learned Senior Counsel appearing on behalf of the appellants/defendants at the outset submitted that the plaint was liable to be rejected under Order 7, Rule 11 (a) since it did not disclose any cause of action. He submitted that the ratio of the Judgment of this Court in Cruz Fernandes (Supra) is squarely applicable in the present case. Relying upon the provisions of the Portuguese Civil Code, more particularly, Articles 2158, 2082, 2085 to 2217, 1412, 1415 and 1419, the learned Senior Counsel submitted that the plaintiffs in the absence of any Inventory proceedings or any public deed having been drawn, were not entitled to 1/3 share in the suit properties, but they were entitled to 1/3 share in the estate. Therefore, the learned Senior Counsel submitted that the plaint as filed did not disclose any cause of action. He further submitted that in order to seek partition, the parties must have preexisting right to the property and in the present case the plaint does not disclose any right to the suit properties in favour of the Plaintiffs. The learned Senior Counsel further submitted that on a proper reading of the plaint, it is evident that the same does not disclose any cause of action. Therefore the plaint is liable to be rejected and the impugned order deserves to be quashed and set aside. In support of his submissions, the learned Senior Counsel relied upon the following Judgments : (1) Shri Cruz Fernandes and his wife v. Smt. Gregorina Estefania Sofia Fernandes and others (1991 (4) BCR 400; (2) Hiraji Tolaji Bagwan (since deceased by L. Rs. ) v. Shakuntala reported in A. I. R. 1990 S. C. 619; (3) T. Arivandandam v. T. V. Satyapal and another reported in (1977) 4 SCC 467; and (4) I. T. C. Limited v. Debts Recovery Appellate Tribunal and others reported in (1998) 2 SCC 70.