:1: IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 30 OF 2010 Mrs. Maria Silvia Pinho de Souza, widow of late Ernesto Agnelo De Souza, major, landlady, resident of House No.128, Corte de Oiteiro, Panaji Goa. …. Appellant V e r s u s 1. Shri Mario Cornelio Francisco De Souza, 2. Shri Fausto Gerson De Souza, both sons of late Emidio Simao Ismael Srtorio Jose de conceicao Rosario De Souza and Rosa Joaquina Victoria Servula Luis e Souza, House No.230, Rosem Villa, Porba Vaddo, Calangute, Bardez Goa. 3. Mrs. Maria Ivone Souza Rodrigues, widow of late Antonio Minguel Rodrigues, major, housewife, resident of Rodrigues House, Vidhyanagar, Aquem, Margao, Salcete. … Respondents Mr. Tarzan D'Costa, Advocate for the appellant. Mr. J. E. Coelho Pereira, Senior Advocate with Mr. S. Karpe, Advocate for respondent no.3. CORAM : F. M. REIS, J DATE: 29 th NOVEMBER, 2011 . ORAL JUDGMENT Heard Shri T. D'Costa, learned Counsel appearing :2: for the appellant and Shri J. E. Coelho Pereira, learned Senior Counsel appearing for respondent no.3. 2. The above appeal challenges the order passed by the learned Civil Judge Senior Division, Mapusa whereby the respondent no.3 has been appointed as Cabeca de Casal in the Inventory Proceedings No. 180/2008 initiated upon the death of Mario Cornelio Francisco D'souza and Mr. Fausto Gerson D'souza. 3. On perusal of the records, it reveals that the appellant had initiated inventory proceedings upon the death of the estate leavers and the appellant was appointed as Cabeca de Casal by the learned Judge. Immediately thereafter, the respondent no.3 under the provisions of Article 1374 of the Portuguese Civil Procedure Code filed an application to the effect that the appellant was not a competent to be appointed as Cabeca de Casal as she is merely a moiety sharer of the brother of the estate leavers and as such the question of she becoming the Cabeca de Casal would not arise at all. It is further the case of the respondent no.3 that as she is the sister of the estate leavers, she was only a competent to be appointed as Cabeca de casal :3: in the said proceedings. 4. The appellant disputed the contention of respondent no.3 and pointed out that the respondent no.3 was not entitled to be appointed as cabeca de casal as according to her, she was a sick person and was not competent to run the administration of the estate of the estate leavers. It was further the case of the appellant that the respondent no.3 was not a resident of Calangute where the properties were located and as such the question of appointing her as cabeca de casal would not arise at all. It is further her contention that being one of the descendants of the estate leavers, the appellant was rightly appointed as Cabeca de casal and as such the question of appointing respondent no.3 as Cabeca de casal would not arise at all. 5. The learned Judge by the impugned order dated 18.10.2008 allowed the application filed by respondent no.3 and consequently the respondent no.3 was appointed as cabeca de casal by replacing the appellant herein. Being aggrieved by the said order, the appellant preferred a Misc. Civil Appeal No. 132/2008 before the learned Ad-hoc District Judge – 1, Panaji, which appeal by judgment dated :4: 02.02.2010 came to be dismissed on the ground that the learned Judge had no pecuniary jurisdiction to decide the said appeal. Thereafter, the appellant has preferred the present appeal. 6. Shri T. D'Costa, learned Counsel appearing for the appellant has assailed the impugned order essentially on the ground that in view of the fact that the appellant was a moiety sharer of one of the co-sharers of the estate leavers, she was entitled to be appointed as Cabeca de Casal. The learned Counsel further pointed out that the learned Judge whilst passing the impugned order has failed to consider that the respondent no.3 had disability of being Cabeca de Casal and has disposed the application without holding any inquiry. The learned Counsel further pointed out that all the interested parties have not been served with the said application filed by respondent no.3 and as such the impugned order stands vitiated. The learned Counsel further pointed out that the appellant has filed an application before the inventory Court for removal of the Cabeca de casal and the same is pending for adjudication and as such, for the reasons stated therein the impugned order deserves to be quashed and set aside. The learned Counsel further pointed out that in the ancestral :5: house left by the estate leavers, there is a prayer room besides some other belongings of the appellant which have to be protected during the pendency of the inventory proceedings and as such the respondent no.3 should not prevent the appellant from visiting the said prayer room and the room existing in the ancestral house. The learned Counsel as such submitted that the impugned order deserves to be quashed and set aside. 7. On the other hand, Shri J. E. Coelho Pereira, learned Senior Counsel appearing for respondent no.3 has supported the impugned order. The learned Senior Counsel pointed out that the learned Judge has appointed the respondent no.3 as cabeca de casal in the inventory proceedings as the moiety sharer of one of the co-sharers is not entitled to be appointed as cabeca de casal. The learned Senior Counsel further pointed out that as far as the grievances of the appellant are concerned with regard to the prayer room and the room in the ancestral house are matters which have not been agitated before the Courts below and as such the question of considering the said submission in the present appeal would not arise at all. The learned Senior Counsel further pointed out that in case the appellant is :6: entitled to remove the cabeca de casal, she has to follow the procedure as provided in law and as such merely making vague allegations would not by itself give right to the appellant to remove the respondent no.3 as cabeca de casal. The learned Senior Counsel further pointed out that the learned Judge has rightly appreciated the material on record and has correctly passed the impugned order. 8. Having heard the learned Counsel and on perusal of the records, it is not disputed that the appellant was a moiety sharer of one of the descendants of the estate leavers. It is not disputed that the husband of the appellant expired much before the estate leavers. Hence, the communion between the appellant and her husband naturally got determined upon his death. As such, the question of the appellant claiming to be one of the heirs of the estate leavers does not arise at all. Apart from that, Article 2068 of the Portuguese Civil Procedure Code provides as under : “Such an office devolves on : 1. The surviving spouse, save when the spouse is not having share in the properties to be partitioned and not having descendants, still minors, as heirs; :7: 2. The sons, without disability and, in their absence, other descendants, without disability; 3. The other heirs without disability. Paragraph 1 : Within the categories of Clauses 2 and 3, the following shall have preference : a) The legitimate sons vis-a-vis the illegitimate; b) The heirs who were living with the deceased vis-a-vis others; c) The males vis-a-vis females; d) And there being more than one in the same circumstances, the elder shall have preference. Paragraph 2: Only one who was residing permanently in the domicile and company of the same deceased shall be deemed to be the heir living with the deceased. There is no dispute that the respondent no.3 is the descendant of the estate leavers. Considering the said provisions of the Portuguese Civil Procedure Code specially para 2 of the Article 2068 of the said Code, it is clear that the respondent no.3 being the descendant of the estate leavers is entitled to be appointed as cabeca de casal. Even otherwise, the moiety sharer of a co-heir cannot be descendants of the :8: estate leavers apart from the fact that such moiety sharer is not entitled to be appointed as cabeca de casal in the proceedings to partition the estate left by the estate leavers in the present appeal. As such, the appellant not being a direct descendant of the estate leavers is not entitled to be appointed as the cabeca de casal. The learned Judge has rightly appreciated the evidence on record and considered the provisions applicable to the facts of the case and passed the impugned order. I find no infirmity committed by the learned Judge in the impugned order. Hence, the impugned order cannot be said to be contrary to law. 9. Dealing with the contention of learned Counsel Shri T. D'Costa, to the effect that the appellant has filed an application for removal of the cabeca de casal, the same shall be considered by the learned Judge in the inventory Court after hearing the parties in accordance with law. This aspect cannot be considered in the above appeal as it do not form part of the record in the present appeal. Apart from that, the next contention of the learned Counsel appearing for the appellant to the effect that the respondent no.3 should not obstruct the appellant from visiting the prayer room and room existing in the ancestral house, I find that this aspect is also a :9: matter which was not raised before the inventory Court and as such the appellant is not entitled to raise such contention before this Court. But however, if so advised, the appellant shall agitate such issue before the inventory Court which would have to be considered by the inventory Court after hearing the parties in accordance with law. 10. Subject to the above, I find no merit in the above appeal which stands dismissed. F. M. REIS, J at*