Case Note & Summary
The petitioners, being heirs of the deceased parents, challenged the judgment dated 02.06.2000 passed by the learned Addl. District Judge, Panaji, in Misc. Civil Appeal No. 127/99, which confirmed the order of the learned Civil Judge, Senior Division, Mapusa, appointing a Commissioner to effect partition of the properties in Inventory Proceedings No. 17/1980. The inventory proceedings were initiated upon the death of the parents of Petitioner No. 1. The petitioners contended that the appointment of a Commissioner was not warranted as the parties had agreed to a partition scheme. However, the trial court found that there was no consensus among the parties regarding the partition, and thus appointed a Commissioner to carry out the partition. The appellate court upheld this order. The High Court, in its writ jurisdiction under Article 227 of the Constitution of India, examined whether the impugned order suffered from any perversity or lack of jurisdiction. The court noted that the inventory proceedings are governed by the Portuguese Civil Code, which vests discretion in the court to appoint a Commissioner when the parties fail to agree. The court found that the trial court had correctly exercised its discretion and the appellate court had rightly confirmed it. The High Court held that there was no error of law or fact warranting interference. Consequently, the writ petition was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Inventory Proceedings - Appointment of Commissioner - The court in inventory proceedings under the Portuguese Civil Code has the discretion to appoint a Commissioner to effect partition of joint family properties when the parties fail to agree on a partition scheme. The appellate court's confirmation of such appointment is not perverse or illegal. (Paras 1-6)
B) Constitutional Law - Writ Jurisdiction - Scope of Interference under Article 227 - The High Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, will not interfere with an interlocutory order unless it is shown to be perverse, without jurisdiction, or suffers from a manifest error of law. The impugned order appointing a Commissioner was found to be within the court's discretion and not warranting interference. (Paras 5-6)
Issue of Consideration
Whether the learned Addl. District Judge erred in confirming the order of the Civil Judge, Senior Division, appointing a Commissioner to effect partition of the properties in Inventory Proceedings No. 17/1980, and whether the High Court should interfere under Article 227 of the Constitution of India.
Final Decision
The High Court dismissed the writ petition, upholding the judgment of the Addl. District Judge, Panaji, dated 02.06.2000, and the order of the Civil Judge, Senior Division, Mapusa, appointing a Commissioner to effect partition in Inventory Proceedings No. 17/1980. No order as to costs.
Law Points
- Inventory proceedings
- Portuguese Civil Code
- partition of joint family property
- appointment of commissioner
- civil procedure
- writ jurisdiction
- scope of interference
Case Details
2011 LawText (BOM) (09) 87
WRIT PETITION NO. 328 OF 2000
Mr. M. B. D' Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the Petitioners; Mr. V. Menezes, Advocate for the Respondents
Shri Anant Venkoba Haldankar, Smt. Jankibai Anant Haldankar, Smt. Savitribai Venkoba Shet Haldankar
Shri Madhusudan Haldankar, Smt. Saraswati Madhusudan Haldankar, Gulababai Manohar Verlekar, Manohar Verlekar, Shashikant Vernekar, Kalpana Shashikant Vernekar, Nandakishor Karekar, Nutan Nandakishor Karekar, Umesh Badekar, Urmila Umesh Badekar, Ashok Lotlikar, Laxmi Ashok Lotlikar, Rajesh Manguesh Pednekar, Reema Rajesh Pednekar, Suresh V. Shirodkar, Asha V. Shirodkar, Hema V. Shirodkar, Pundalim V. Shirodkar
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Nature of Litigation
Civil writ petition challenging an appellate order confirming appointment of a Commissioner in inventory proceedings for partition of joint family property.
Remedy Sought
The petitioners sought to quash the judgment dated 02.06.2000 of the Addl. District Judge, Panaji, which confirmed the order of the Civil Judge, Senior Division, Mapusa, appointing a Commissioner to effect partition in Inventory Proceedings No. 17/1980.
Filing Reason
The petitioners were aggrieved by the appointment of a Commissioner, contending that the parties had agreed to a partition scheme and that the appointment was unnecessary.
Previous Decisions
The Civil Judge, Senior Division, Mapusa, appointed a Commissioner to effect partition in Inventory Proceedings No. 17/1980. The Addl. District Judge, Panaji, in Misc. Civil Appeal No. 127/99, confirmed that order on 02.06.2000.
Issues
Whether the appointment of a Commissioner by the trial court in inventory proceedings was justified when the parties allegedly agreed to a partition scheme.
Whether the High Court should interfere under Article 227 of the Constitution of India with the impugned order.
Submissions/Arguments
The petitioners argued that the parties had agreed to a partition scheme and therefore the appointment of a Commissioner was unwarranted.
The respondents supported the impugned order, contending that there was no consensus among the parties and the court rightly exercised its discretion.
Ratio Decidendi
In inventory proceedings under the Portuguese Civil Code, the court has the discretion to appoint a Commissioner to effect partition when the parties fail to agree on a partition scheme. The High Court, under Article 227 of the Constitution of India, will not interfere with such an interlocutory order unless it is perverse, without jurisdiction, or suffers from a manifest error of law.
Judgment Excerpts
The above Petition challenges the Judgment dated 02.06.2000 passed by the learned Addl. District Judge, at Panaji in Misc. Civil Appeal no. 127/99.
Inventory proceedings were initiated upon the death of the parents of Petitioner no.1 in the Court of learned Civil Judge, Senior Division at Mapusa, being Inventory Proceedings no. 17/1980.
The learned Addl. District Judge by the impugned Judgment dated 02.06.2000 dismissed the Appeal and confirmed the order of the learned Civil Judge appointing a Commissioner to effect the partition.
The learned Counsel appearing for the Petitioners pointed out that the parties had agreed to a scheme of partition and as such the appointment of a Commissioner was not warranted.
I have perused the impugned Judgment and I find that the learned Addl. District Judge has considered the submissions of the parties and has come to the conclusion that there was no consensus amongst the parties regarding the partition.
In my opinion, the impugned order does not suffer from any perversity or lack of jurisdiction and as such no interference is called for in the present Petition.
Procedural History
Inventory Proceedings No. 17/1980 were initiated in the Court of Civil Judge, Senior Division, Mapusa, upon the death of the parents of Petitioner No. 1. The Civil Judge appointed a Commissioner to effect partition. The petitioners appealed to the Addl. District Judge, Panaji, in Misc. Civil Appeal No. 127/99, which was dismissed on 02.06.2000. The petitioners then filed the present writ petition under Article 227 of the Constitution of India before the High Court of Bombay at Goa.
Acts & Sections
- Constitution of India: Article 227
- Portuguese Civil Code:
