Suit for partition dismissed due to illusory cause of action. Plaintiff could not proceed as the Will had not been proved in the preceding Original Petition for Letters of Administration, making the authority to question partition premature.
Suit dismissed with no costs connected applications closed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.S.No.211 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.11..2022
CORAM
THE HON'BLE MR. JUSTICE C.V.KARTHIKEYAN
Civil Suit No.211 of 2021
Ms.Brenda Philomena Cole D/o.K.V.Rao 66, Johanson Promenande, Murdoch 6150 Perth, wEstern Australia.
..Plaintiff
. Vs.
Mr.Denzil Godfrey Rao S/o.K.V.Rao 97, Jackson Avenue, Winthrop 6150 Perth, Western Australia.
... Defendant
Prayer: Civil Suit filed under Order VII Rule 1 of CPC., and Order IV Rule 1 of Original Side Rules, pleased to pass a decree for:
i) partition of the suit schedule mentioned property and separate possession of the plaintiff i.e. 50% share in the suit schedule mentioned property. In the event the suit schedule mentioned property is not viable for partition by metes and bounds, this Hon'ble Court may be pleased to pass a decree for.
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price.
C.S.No.211 of 2021
ii) sale of the suit schedule mentioned property for the maximum price.
iii) the Plaintiff to be paid half share of such price and other half share to the Defendant, and
iv) the costs for the suit.
For Plaintiff : M/s.Surana & Surana
For Defendant : Mr.V.B.Sundhareshwarar
JUDGMENT
The cause of action paragraph in the suit is as follows:
“The cause of action for this suit arose at Chennai wherein
the suit schedule mentioned property has been purchased by Mr.K.V.Rao. The suit schedule mentioned property is situated within the jurisdiction of this Hon'ble Court. Subsequently, the
Plaintiff is awaiting this Hon'ble Court's direction in O.P.No.923 of 2017 for grant of Letters of Administration to her as the beneficiary under the said Will .”
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2.It is seen that there is no disclosure of actual cause of action for
instituting the suit.
3.Independently, O.P.No.923 of 2017 had been filed for grant of
letters of administration as a beneficiary under the Will. It is trite to point out that the Will has to proved in manner known to law. The Will has to be in conformity with Section 63(c) of the Indian Succession Act, 1925. Thereafter, the procedure under Section 68 of the Indian Evidence Act, 1872 will have to be followed and the attestors will have to be examined. If the attestors are not available then the procedure under Order 16 Rule 10 CPC., will have to be followed and thereafter the procedure of Section 69 of the Indian Evidence Act, will have to be followed. These procedures will have to be undergone before any order in O.P.No.923 of 2017 can be passed.
4.Even the preliminary steps had not been taken.
5.Filing of a simultaneous suit seeking partition in the belief that
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C.S.No.211 of 2021
orders will be granted in O.P.No.923 of 2017 is a clear case of taking Court orders for granted. Unless, the Will is proved in the manner known
to law, Letters of Administration cannot be granted. Only if Letters of Administration are granted will cause arise to seek partition and separate possession. On the date when the suit was verified on 20.5.2021, there was an illusionary cause of action.
6.The Suit stands dismissed.
file a fresh suit but only after orders are obtained in O.P.No.923 of 2017.
07.11.2022
Internet: Yes Index:Yes/No Speaking Order : Yes/No KP
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C.S.No.211 of 2021
To
The Sub-Assistant Registrar, Original Side, High Court, Madras.
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C.S.No.211 of 2021
C.V.KARTHIKEYAN,J.,
KP
Civil Suit No.211 of 2021
07.11.2022
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3 issues framed by the court
Whether a suit for partition can be filed when the Will creating the beneficiary interest remains unproved in court.
Whether filing a partition suit simultaneously with administration proceedings constitutes an illusory cause of action.
Whether the cause of action for partition arises only after Letters of Administration are granted.
Colour shows how this judgement treated each authority
None citedReferred
4 provisions across 3 enactments
Brenda Philomena Cole
Denzil Godfrey Rao
C.V.KARTHIKEYAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
