1 IN THE HIGH COURT OF BOMBAY AT GOA. WRIT PETITION NO.199 OF 2009. 1. Ana Rosa Paaciaencia Gonsalves, 2. Arcadias Francisco Xavier Fernandes, 3. Salvacaao Gonsalves, 4. Custodio Siqueira All r/o. Toleaband, Igramol, Quepem. 5. Pedro Conceicao Mario Gonsalves, 6. Romaldinha Dourado, Both r/o. H. No.146, Vagorna, Vittalamordi, Quepem. ... Petitioners. V e r s u s 1. Mr. Benedito Gonsalves, 2. Cristina Mascarenhas, Both r/o. Vagorna, Vittalamordi, Quepem, Goa. 3. Mr. Pedro Fernandes, r/o. Ambaulim, Quepem, Goa. 4. Smt. Luiza Fernandes, also known as Luca Fernandes, (Since deceased through legal heirs) 4-a. Agostinho Fernandes and his wife 4-b. Joanita Fernandes, 2 Both r/o. H. No. 380, Bornovaddo, Ambaulim, Quepem. 4-c. Joao Miguel Fernandes and his wife. 4-d. Filipinha Fernandes, Both r/o. in new house Chinchvadado, Ambaulim, Quepem. 4-e. Lourenco Fernandes and his wife, 4-f. Marcelina Fernandes, Both r/o. Behind Football ground, Tilamolla, H. No. 30/3, Quepem. 4-g. Jose Manuel Fernandes and his wife 4-h. Remetina Fernandes, Both r/o. H. No. not known, Near Cemetery, Chichevaddo, Ambaulim Quepem. 4-i. Eugenia Fernandes and her husband 4-j. Lourenco Fernandes, Both r/o. H. No. not known, Near Cemetery, Chichevaddo, Ambaulim Quepem. 4-k. Cacilda Oliveira, widow and her children, 4-l. Elvis Oliveira and his wife, 4-m. Shamira Carvalho, all r/o. H. No. 21/1, Mullem, Paroda, Quepem. ... Respondents. 3 Mr. R. G. Ramani, Advocate for the Petitioners. Mr. V. P. Thali, Advocate for the Respondent Nos.1 and 2. Mr. D. Pangam, Advocate for the Respondent Nos.3 and 4. CORAM: A. H. JOSHI., J. DATE: 17th August 2009. JUDGMENT 1. Rule. Rule is made returnable forthwith, and petition is heard by consent. 2. Respondent No.3 herein is a total stranger to the parties involved in the Regular Inventory Proceedings no.33/2003/B. 3. According to the Respondent No.3, the properties Survey No. 152/4 and 152/4/B which are included in the properties subject matter of inventory proceedings are not liable to be dealt with in said inventory proceedings and he has prayed that those be excluded from the inventory. 4. The application was filed by the respondent No.3, as third party on 28.2.2005. This application has been opposed by present petitioners 4 urging in its reply the points as follows:- 1. .............................................................. 2. .............................................................. 3. ............................................................. 4. There is no scope for third parties to file application under Article 1383 of P.C.P.C . , nor item No.9 and 11 are wrongly enlisted. The question of exclusion of item No. 9 and 11 from inventory hence, does not at all arise. 5. Without prejudice to above, the allegations made in para 1, 2 and 3 are specifically denied and, the third parties are put to strict proof. 6. With reference to para 4, the Third parties have absolutely no concern with land under No.152/4 and 152/4-B. It is specifically denied the said two survey numbers exclusively belongs to third parties. No exclusion therefore can be sought as alleged. (quoted from page 42 and 43) 5. It seems that in the midst present petitioner has insisted the inventory court for dismissal of application of third party at the threshold, that too without making any applications. It seems that learned trial court was persuaded to hear objection as preliminary objection. 6. The Trial Court has after hearing the parties passed impugned 5 Order on 30.8.2008 Exbt. 87 and held that the objection raised by third party can be gone into and shall not be dismissed summarily. This order was challenged by present petitioners in District Court in M. C. A. No.54/2008, which has been heard and dismissed by Judgment and Order dated 19.1.2009. 7. Present petitioner has challenged said Order of District judge in present Writ Petition. 8. Though many grounds are raised, the crux of challenge can be grasped from ground (X) which reads as follows:- “(X) The learned Adhoc Additional District Judge ought to have considered that the expression “other person” envisaged in the said Article 1383 referred to persons like legatees and creditors clearly mentioned in Article 1371 of the said Code as also to person whom any right in the estate was transferred by one of the heirs without offering preference to the co- heirs envisaged in Article 1376 thereof.” 9. Learned Advocate for the respondent No.3 has opposed the petition by relying on two reported Judgments and one article, namely:- (1) Mario Bruto da Costa Matrimonial Regimes and Inventory, Goa 2000. (2) Caetano Piedade da Costa and anr. V/s. Mr. Casimiro da Costa and 13 others, 1991 (2) Goa L. T. 204, of this Court of Portuguese Supreme Court. 6 10. Admittedly in first reported Judgments objector was himself a claimant, and in second he was a transferee of property from a heir who had share in the property. These judgments therefore do not lend any guidance when objector is a total stranger to the claimants of share in the estate. 11. This Court has therefore to independently examine the provision contained Article 1383. 12. It is clear that Article 1371 to 1390 of common Civil Code provides for entire procedure from summering to adjudication. 13. The term “party” or “third party” have not been defined in the division I and II or elsewhere in the common Civil Code. Perusal of Articles 1371 to 1390 discloses different classes of persons who need to be heard, whether to be summoned or otherwise, namely :- (a) Under Article 1371:- & (b) Under Article 1376:- 1. Public Prosecutor. 2. The heirs of deceased. 3. The spouses of heirs, 7 4. Legatees, 5. Creditors. 6. Transferee of share of heir in certain cases. (c) Under Article 1383:- Any other person. 14. It is seen from Article 1375, that any person can be admitted in inventory proceedings on an application. Article 1375 reads as follows:- “ Where anybody desires to be admitted in the inventory as party, legatee, or creditor, he may file his application at any time, indicating at once the evidence which shall be led. After the notice is given to the administrator and to the parties to give their say, in the rest what is laid down int he preceding Article shall be observed”. ( quoted from page 101 of book ) 15. The term “any other person” used in Article 1383 has to be construed to including the category of those who can object the inclusion of any property, in their own right and not as moiety holder, and necessarily other than those who can be amongst those who are not included in second para of Article 1371, and Article 1375. 8 16. While the proceedings of inventory are summary in nature, the scheme empowers the court to see within its summarily jurisdiction whether the properties are capable of distribution being owned by the common ancestors. The process of adjudication contemplated in division I and II of the Portuguese Common Civil Code provides following eventualities:- (a) The decision will bind those who have appeared in the proceedings or were summoned and have replied or failed to reply . (sole sub paragraph of Article 1380) (b) Where the dispute cannot be summarily decided, the parties can be directed to pursue ordinary civil remedy ( fourth unnumbered paragraph of Article 1386). (c) As a part of process of administration of justice, any interested person on the lines “proper parties to the suit” can raise objections to the inventory proceedings and can be heard. 17. In these premises, Article 1383 will have to be read and construed to permit inclusion of a total stranger to the family or heirs, on the lines of Order 1 Rule 3, 5 and 8 of the Civil Procedure Code. 18. This Court is not persuaded to believe that Article 1383 is redundant or enacted unmindful. It has to be seen as a conscious and deliberate enactment. 19. It is obvious that, had law makers in mind not to include a 9 third party, or a total stranger to intervene in the list of objectors, separate Article 1383 would not have been enacted by employing therein the term “other person” . 20. In the result, Petition has no merits. Rule is discharged with costs. A. H. JOSHI. ah/-