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Sabastian Antonio Texeira and ors. Vs. Rodolf Minguel Texeira and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMumbai High Court
Decided On
Case NumberSuit No. 61 of 1954
Judge
Reported inAIR1962Bom4; (1961)63BOMLR552
ActsSuccession Act, 1925 - Sections 219
AppellantSabastian Antonio Texeira and ors.
RespondentRodolf Minguel Texeira and ors.
Appellant AdvocateBhalekar and ;S.A. Kirtikar, Advs.
Respondent AdvocateA.N. Mody and ;M.R. Mody, Advs.
Excerpt:
.....pecuniary jurisdiction of court determined by value of entire property -- distinction between suit for partition and suit for administration -- in suit for partition plaintiff claiming by way of relief rendition of accounts and share of income found due on taking accounts -- whether such suit becomes one for administration of estate.;in a suit for partition it is the value of the share which the plaintiff claims in the joint family property or the property of which partition is sought, which determines the pecuniary jurisdiction of the court and not the value of the entire property.;bai shevantibai v. janardhan raghunath [1944] bom. 745, p.c. : s.c. 46 bom. l.r. 849, p.c., abdul kadar v. bapubhai (1898) i.l.r. 23 bom. 188, shivmurteppa v. virappa (1899) 1 bom. l.r. 620 and cook v......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 texeira 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.....
Judgment:

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 Texeira 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 inter 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.

(4) Paragraph 9 of the plaint refers to the plaintiffs' submission that in view of the attitude taken up by defendants Nos. 1 to 7 it was just and proper that pending the hearing and final disposal of the suit the Court Receiver or some other fit and proper person be appointed receiver of the estate of the deceased.

(5) Paragraph 11 of the plaint then is very important because it is that paragraph which really gives the pecuniary jurisdiction to this Court in regard to the plaintiffs' suit. It says as follows:

'The plaintiffs' claim in suit is for over Rs. 25,000/-'.

(6) Then paragraph 12 sets out the different reliefs which the plaintiffs have prayed for. First of the reliefs is that the properties belonging to the estate of the deceased Alex Texeira be partitioned between the plaintiffs and the defendants in accordance with their respective shares by the sale of the said properties or in such manner as to this Court might seem fit; secondly, that the share coming to the branch of the deceased Antonio be ascertained and paid and/or delivered or otherwise secured to the plaintiffs and defendants Nos. 8 and 9; thirdly, that the share coming to the branch of the said Antonio be divided between the plaintiffs and defendants Nos. 8 and 9 in accordance with their respective shares mentioned in paragraph 8 and paid and/or delivered or otherwise secured to each of them; fourthly, that defendants Nos. 1 to 7 or any of them may be ordered to render a true and correct inventory of the properties belonging to the estate of the said deceased Alex Texeira; fifthly, that defendants Nos. 1 to 7 might be ordered and decreed to render an account of the management of the properties of the said deceased Alex and in particular of the properties described in Ex. A from the middle of the year 1943 and pay to the plaintiffs and defendants Nos. 8 and 9, the amounts from time to time found due and payable to them in respect of their share in the estate of the said deceased Alex with interest thereon at the rate of 6 per cent per annum from the time the amounts became payable to them; sixthly, that, if necessary, the estate of the deceased Alex be administered by and under the directions of this Court; seventhly, that fort aforesaid purposes all accounts might be taken, inquiries made and directions given as to this Court might seem fit, and lastly, for appointment of a receiver, pending the hearing and final disposal of the suit, of the properties belonging to the estate of the deceased Alex and f or an injunction restraining defendants Nos. 1 to 7 from disposing of or otherwise dealing with the said properties or the rents and profits thereof.

(7) I need not refer to the contentions raised in the written statement in detail and on merits. The very first contention that has, however, been raised by defendants Nos. 1 to 7 in the written statement is that this Court has no jurisdiction to receive, try and dispose of this suit inasmuch as the properties in suit are much below the value of Rs. 25,000/- and therefore the suit should be dismissed with costs. It is upon this contention that arguments have been advanced both by the plaintiffs and the defendants Nos. 1 to 7.

(8) I am informed that this matter was heard for some time by Mr. Justice K. K. Desai. After hearing arguments as regards the questions of the valuation of the shares of the plaintiffs in the properties of the deceased, the learned Judge had referred the matter to the Taxing Master for determining the value of the entire properties of the deceased as also the income of the properties for 3 years prior to the date of the suit. For the purpose of determining the value of the plaintiffs' share the Taxing Master made his report on 15th February 1960 in pursuance of the consent terms which were presented to him by the plaintiffs Nos. 1 to 7 on the other. According to those consent terms it was agreed between the parties that the value of the ancestral property desired to be partitioned in this suit on the date of the suit was Rs. 34,000/-. It was further agreed that the amount payable by defendants Nos. 1 to 7 to the plaintiffs for their share in the income of such ancestral property on the footing that accounts could only be asked for for a period of three years ending with the date of the suit was Rs. 675.59 nP. Pursuant to these consent terms and the report made by the Taxing Master on the basis thereof, it is admitted by the counsel for the plaintiffs that the value of the plaintiffs' share in the property of which partition is sought in this suit would be about Rs. 6,000/-. As regards the value of the share of the plaintiffs in the income of the properties of the deceased for three years prior to the date of the suit, although it is shown as Rs. 675.59 nP., the learned counsel for the plaintiffs contended that really speaking in the plaint the plaintiffs had asked for accounts right from 1942 and that, therefore, their share of the income of the properties of the deceased would be much larger than what had been shown to be by consent only for a period of three years. Even making allowance for this contention, one has only got to compute the income for another 9 years and this computation would be based upon the terms of the consent terms themselves as to their share of the income for three years prior to the date of the suit. On this calculation the plaintiffs' share in the income of the deceased's property right from 1942 down to 1954 would not be more than 3,000/- in any event. Accordingly, the total value of the plaintiffs' share in the property of the deceased would not exceed Rs. 10,000/-. It was with great hesitation that the learned counsel for the plaintiffs conceded that the value of the plaintiff's share would not exceed Rs. 10,000/-. He, however, contended that the jurisdiction of a Court even in a partition suit is not based upon the value of the share of the plaintiff in the ancestral property. I cannot understand this contention. Paragraph 11 of the plaint itself points out very clearly, in order that the suit may lie within the jurisdiction of this Court, that the value of the plaintiffs' share in the property of the deceased exceeds Rs. 25,000/-. This averment can very properly be said to have been made in view of the position in law that in a partition suit the pecuniary jurisdiction of the Court depends on the value of the share of the plaintiff in the property of which partition is sought and not upon the value of the whole of the property of which partition is sought. The learned counsel for the plaintiffs, however, somehow did not seem to agree to this obvious position in law with the result that I had to call upon the learned counsel for the defendants to cite any authorities, if he had, in support of the proposition that the jurisdiction of the Court as regards a suit for partition depends upon the value of the plaintiffs' share in the property of which partition is sought and not upon the total value of the properties of which partition is sought. The learned counsel for the defendants promptly cited several decisions one of which was Shevantibai v. Janardhan Raghunath . That was a case in which the assignee of the purchaser from a member of a joint family of a share in the joint family property sued for partition of the family property and to have the share allotted to her. The total value of the joint family property exceeded Rs. 10,000/-. The value of the share to which the appellant was, however, entitled was about Rs. 3,000/- only. On a question being raised as to whether on appeal to His Majesty in Council the value of the subject-matter should be taken as the value of the whole of the joint family property or the value of the share of the joint family property in respect of which the plaintiff had filed the suit it was held by the Privy Council that the value of the share of the joint family property in respect of which the plaintiff was claiming must be taken to be the subject-matter in dispute on appeal to His Majesty in Council. Although this decision does not directly refer to a suit for partition in the sense that the question decided was not with reference to the initial jurisdiction of the Court in which the suit was filed but with reference to the appeal to the Privy Council, in my opinion, it does not make the slightest difference. Nevertheless, there are other case of our own Court where it has been held that in a suit for partition the jurisdiction of the Court depends upon the value of the share which is claimed by the plaintiff in that suit and not upon the total value of the property in which share is claimed. In Abdul Kadar v. Bapubhai, ILR 23 Bom 188, it was held that, in a suit where the defendant asked to have his share divided off and allotted to him, such relief should be granted to him on payment of the necessary court-fees, corresponding to the value of his own share. At page 190 Parsons, J., observed as follows:

'This is the converse of the case Murarrao v. Sitaram, ILR 23 Bom 184 we decided yesterday, because in this suit for partition of joint property the Courts have refused to give the first defendant his share, which was found and is now admitted to be one-third, though he asked for it. The reason assigned for the refusal by the Subordinate Judge is that the court-fee paid is only sufficient to cover plaintiffs' one-third share in the property No more, however, is ever paid in any suit for partition, and we think that it was quite in the power of the Judge to have ordered the defendant to pay the necessary court-fee on his share as a condition precedent to his obtaining his share.'

This decision was followed in a later case Shivmurteppa v. Virappa, 620 1 Bom LR. In course of the judgment the same learned Judge observed at page 622 as follows:

'Where, however, the members of the family themselves desire a general partition, we do not see how that prayer can be refused. It is the right of every defendant in a partition suit to ask to have his own share divided off and given to him and the fact that the partition suit has been brought by a purchaser cannot alter or annual that right. The objection raised by the Subordinate Judge that the defendant will get his share without any costs to him in court-fees is not sound. A defendant claiming a share on partition is, qua that claim, in the position of a plaintiff and could be called on to pay court-fees on the value of his claim. We, have dealt with the points involved in this appeal very recently (See ILR 23 Bom 184; ILR 23 Bom 188 and we have nothing to add to what we then said. We think that in the present case the appellant (or defendant 2) is clearly entitled to have his own share ascertained and partitioned, and we, therefore, reverse the decrees of the lower Courts and remanded the case to the Court of first instance for retrial.'

(9) There is another decision, J. Cook v. G. H. Cook, AIR 1938 Nag 149. It has been clearly laid down there that the value of the share claimed and not the value of the entire property is the value for the purpose of jurisdiction in a suit for partition where the plaintiff claims partition and separate possession of his share. Thus, there is no doubt that in a suit for partition it is the value of the share which the plaintiff claims in the joint family property or the property of which partition is sought, which determines the pecuniary jurisdiction of the Court and not the value of the entire property. If therefore, this suit is held to be a suit for partition, then this Court will have no jurisdiction to entertain it, because, as pointed out in the earlier part of the judgment, the value of the plaintiffs' share does not exceed Rs. 10,000/-. In other words, it is very much less than what is necessary for this Court to have the pecuniary jurisdiction.

(10) It was, however, contended by the learned counsel for the plaintiffs that the suit was not one for partition, but it was an administration suit and that, therefore, the value of the entire property should be taken into account for the purpose of determining the jurisdiction of the Court. Alternatively, he contended that in an administration suit where relief for accounts was the principal relief the plaintiffs were entitled to put their own value on that relief and that if the plaintiff were allowed to amend the plaint, they would show the value as more than Rs. 25,000/-.

(11) I have summarised the plaint already and the substance of the plaint only comes to this that defendants Nos. 1 to 7 are in possession of the properties of which partition is sought by the plaintiffs and that those defendants should be ordered to render accounts in respect of the management of those properties and also to deliver their share of the properties on partition. Looking to the substance of the plaint, therefore, there is no doubt that the suit is for partition of the properties of the deceased and nothing else. It was, however, contended that in so far as the plaintiffs had asked for a relief that defendants Nos. 1 to 7 be ordered to render accounts of the management from 1942 to the date of the suit, it was an administration suit. I am afraid, this contention cannot be upheld, because in all suits for partition of joint family property, where the property is held by one of the members entitled to partition, the plaintiff invariably claims that the party in possession of the property be ordered to render accounts of the property and that the plaintiff be awarded his share of the income that might be found due on taking such account. If this is so, then surely because there is a relief for accounts claimed in this suit, the suit does not become one for administration of the estate. Besides, looking to the reliefs claimed in the suit, it is perfectly obvious that the plaintiffs only desire that their share in the property in the possession of defendants Nos. 1 to 7 be awarded to them. The account has been asked for only in regard to the management of the property with a view that their share of the income on taking such accounts may be awarded to them. Further, paragraph 11 of the plaint, as I have stated above, points out that the value of the plaintiffs' share which they claim by partition is Rs. 25,000/- and that, therefore, this Court has jurisdiction to entertain the suit. From all this it is clear that the plaintiffs never intended to file a suit for administration of the estate of the deceased at all. Merely stating in one of the reliefs that, if necessary, the estate of the deceased be administered by and under the directions of this Court does not by itself make the suit one for administration of the estate. A true administration suit, when filed by an heir, does not restrict itself only to the share which he claimed in the property and in the income of that property when held by another of the heirs. In an administration suit, it will be necessary in my opinion, to claim that the estate of the deceased may be collected from wherever it is, that the debts due by the deceased be ascertained, that the outstanding s due to the deceased may be ascertained and collected, that the parties entitled to a share in the estate after payment of the debts, be ascertained with their respective shares and that eventually whatever remains out of the estate after payment of the debts due by the deceased might be distributed among the heirs or persons entitled thereto in proportion to the shares that they might have a right to. On the plaint as it stands, therefore, in my opinion, it is extremely difficult to say that the suit that has been filed by the plaintiffs is one for administration of the estate of the deceased. It is purely a suit for partition of the property of the deceased and for accounts of the management of that property by defendants Nos. 1 to 7. It may be pointed out that defendants Nos. 1 to 7 in their written statement have claimed that there was already a partition of the estate of the deceased as far back as in 1942 and that the property of which partition was sought by the plaintiffs in this suit was in their possession as having fallen to their share at that partition. In the alternative, they have claimed that they had become owners of that property by adverse possession. Therefore, the suit merely relates to a certain property and not the estate of the deceased in general. Accordingly, in my opinion, it is difficult to accept the contention of the learned counsel for the plaintiffs that this is a suit for the administration of the estate of the deceased and that, therefore, in view of the fact that the value of the entire property of the deceased in respect of which partition is sought, is more than Rs. 34,000/- this Court has jurisdiction to entertain the suit. In order to show that even a suit such as this is a suit for administration of the estate of the deceased, the learned counsel for the plaintiffs relied upon a decision Kadir Hussain Rowther v. Jamila Bi, ILR 1943 Mad 497: (AIR 1943 Mad 242). It is a decision by a single Judge of that Court and it said that although the primary object of a suit filed by one of the heirs of a deceased person is to obtain his or her own share of the deceased's estate, the suit must be regarded as a suit for the administration of that estate. An administration suit must necessarily deal with the administration of the whole estate and the decree in such a suit must affect the value of the whole estate. It was held in that case that in a suit where the estate was valued at Rs. 41,000/- or more but the plaintiff's share in it came to less than Rs. 5,000/- it was the High Court and not the District Court that had jurisdiction to hear the appeal from a decree in such a suit. At ILR Mad 498 King, J., who decided the appeal observed as follows:

'It is admitted that although the primary object of the suit is for the plaintiff to obtain her own share of the deceased's estate, the suit must be regarded as a suit for the administration of that estate. It is further conceded that the value of the estate is Rs. 41,000/- or more and that the plaintiff's share will come to less than Rs. 5,000/-.'

(12) It was upon this admission made by the advocate concerned that the learned Judge held that a suit for partition must be regarded as a suit for administration of the estate. With respect to the learned Judge, even if it was the view of the learned Judge himself that the suit for partition should be regarded as a suit for administration of the estate, I find myself unable to agree with him. There is a clear distinction between a suit for partition and a suit for administration of an estate, as I have pointed out above. The learned counsel for the plaintiffs also relied upon another case Abdul Rahim v. Lingappa Vaijappa, 45 Bom LR 534: : AIR1943Bom273 . That however happened to be a purely administration suit by a creditor of the deceased and in course of the judgment Lokur, J., sitting singly observed as follows:

'An administration suit is in essence a suit for an account and application of the estate of a deceased debtor for the satisfaction of the dues of all his creditors. The entire administration and settlement of the estate are assumed by the Court. The assets are marshalled and a decree is made for the benefit of all creditors.'

This, however, is entirely a different case and, as has been made clear the administration of an estate necessarily involves the question of ascertainment of the liability of the estate of the deceased as also the payment of his debts. No such thing, however, is claimed in the present suit. As I have already pointed out above, the plaint does not show that the deceased had left any debts or that he had any outstandings to recover at the time of his death. It does not show that any rents had to be paid by the estate of the deceased in respect of any premises or that any expenses were to be incurred with reference to the administration of the estate. All that the plaintiffs in this suit primarily ask for is their share in the property in suit and the share of the income that might have been derived by the defendants Nos. 1 to 7 in course of their management of the property. In my opinion, therefore, there is nothing to show on the face of the plaint that the suit is one for administration of the estate of the deceased and, as I have already stated, merely a relief for accounts out of the several reliefs claimed in the suit does not convert the suit for partition into one for administration of the estate. In my opinion, therefore, this being a suit for partition simpliciter and the value of the share of the plaintiffs in the property in suit not exceeding Rs. 10,000/- this Court has no jurisdiction to entertain this suit.

(13) In the result, the suit is dismissed with costs.

(14) Suit dismissed.


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