1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 62 OF 2003. 1. Francisco Savio Victor de Almeida Aged about 46 years, businessman, C/o Bar Almeida, Municipal Market, Panaji, Goa 2.(a) Lourdes Ignecia de Almeida (b) Agnelo Ferrao, Both r/o Near Talaulicar Hospital Santa Cruz, Ilhas, Goa. ... Appellants Versus 1. (a) Carmelina de Almeida (b) Custodio Simoes (deceased) Both residing at Guirim Bardez, Goa 2 (a) Helena Catarina Almeida (b) Martinho Vales Both residing at Habib Manzil, Opp. Vakola Masjid, S Cruz East Mumbai 400 055 3. Ms. Bevinda Almeida, residing at F-4, Valluz Apartments, Ubo Dando, Santa Cruz, Ilhas, Goa. .. Respondents Mr. M. B. D'Costa, Senior Advocate with Mr J. A. Lobo, Advocate for the appellants.. Mr. S.D. Lotlikar, Senior Advocate with Mr. P. Lotlikar, Advocate for the respondent. 2 CORAM : R. C. CHAVAN,J. DATE : 25 th August, 2008. ORAL JUDGMENT : 1. This appeal takes exceptions to the order passed by the learned Civil Judge, Senior Division, Panaji in Inventory Proceeding No.19/1983 on 6.9.2003 upon remand by this Court. 2. The appellant No.1 is the brother and appellant No.2 is the sister of the Carmelina, who was designated as head of the family in the Inventory Proceedings, which were initiated upon the death of their parents. The appellant No.1 Savio filed an application on 13.9.1988 raising an objection to declaration of the properties made by the head of the family some time in 1985. He stated that he came to know of properties, which were fixed deposit receipts and some ornaments only on the day when he made an application on 13.9.1988. He claimed that one Fr. Atanacio Lobo had stated in writing dated 10.9.88, about which he came to know from his sister Benvinda, on the day of making the application, that the ornaments had been handed over to Carmelina, who had not included them in the list of asset. 3 3. This application was objected to by Carmelina stating that the objection ought to have been taken in terms of Article 1379 within 48 hours from the date of notice i.e. 10.4.1985. This is not having been done, the objection was untenable. She also clarified that fixed deposit receipts B,C, D and E in the application were her own properties, whereas fixed deposit receipts A and F were in fact gifted by Liberata i.e. their mother, to herself and to sister Benvinda. In respect of gold ornaments at Serial Nos. 1,2, 3 and 25, she claimed that they belonged to herself and they were of personal use. One emerald stone neckless was allegedly given to her by her grandmother and did not belong to deceased Liberata Mendis. The ornaments at serial Nos. 12 to 18 and 20 and one Penalin were in the possession of Carmelina, but the other ornaments were taken up by Benvinda from Father Atanocio Lobo by cheating him. This application was summarily dismissed on 26.8.1997 and appeal bearing No.A.O. 89/1997 questioning this dismissal, was disposed of by this Court on 21.10.1997 directing a summary enquiry to be made in the matter. The trial Court again dismissed the application by its impugned order dated 6.9.2003 on the ground that the application was time barred and this is how the parties are again in this Court. 4 4. The only question to be considered in this appeal, is whether the learned Civil Judge was justified in rejecting the application on the ground that the application was barred by limitation as prescribed in Article 1379 of the Procedure Code. The learned Civil Judge has principally believed the evidence of Father Atanocio Lobo, who was examined by the head of the family as D.W.2. Father Lobo stated that somewhere in the year 1988, Savio, Benvinda and other two sisters came to him and had asked him to give a declaration about ornaments and accordingly, he gave the same in the year 1988. In September, 1988, Benvinda and Savio again came to him and told him that declaration, which he had given, was misplaced and, therefore, asked for fresh declaration, which he gave in September, 1988. The declaration of September, 1988, was dated 10.9.88 as can be seen from the application itself. According to Savio he had never approached father for seeking any such declaration and had denied suggestion that he so approached Father Lobo or sought any such declaration. Benvinda stated in her deposition that she told Savio about ornaments on 13.9.1988 i.e. on the date, on which Savio made application to the Court. The learned Senior Counsel for the respondent, head of the family, submits that since Benvinda and Savio reside in the same house, if Benvinda had obtained declaration on 10.9.88, it would be reasonable to infer that Savio came to know of the same on the same date. 5 5. It is interesting to note that on behalf of the head of the family, Benvinda was also cross-examined extensively and she denied the suggestion that she approached father Lobo after 10.9.88 along with her sister Lurdis and brother Savio. This suggestion that she had approached father after 10.9.88, would be indicative of a doubt as to whether these persons at all approached father on 10.9.88. Incidentally, father himself does not state the date ie. 10.9.88. He simply states that the parties met in September, 1988. Father Lobo, no doubt, stated in his examination-in- chief that in the year 1988, Savio, Benvinda and two other sisters came to him and added that in September, 1988, Benvinda and Savio came to him again and sought a fresh declaration. However, in cross-examination, he surprisingly stated that he did not know whether Savio knew about declarations or not. The learned Senior Counsel for the respondent, head of the family, sought to explain the version of father Lobo by submitting that witness was the only independent witness, who was examined by the parties about 12 years after the incident and, therefore, his evidence should not be lightly discarded. He further submitted that sentence " I don't know whether Savio knows about these declarations or not", in fact meant that the father, did not know whether Savio knew about the contents of these declarations or not. It may be impermissible to read what is not there in the 6 deposition. This statement of the father, would create a doubt about his version that in September, 1988, Savio had again approached him along with Benvinda. 6. The learned Senior Counsel for the respondents submitted while hearing the appeal that the Appellate Court should not reject oral evidence, on which the learned trial Judge has placed reliance particularly since the trial Judge had an opportunity to see the witnesses in person. Ordinarily, Appellate Court should be slow to disturb the conclusions on facts drawn by the Trial Judges on the basis of oral evidence. However, in this case, first, the evidence of father Lobo is itself not on firm foundation. He has not been able to rule out the possibility that Savio did not at all approach him for a declaration in May or September, 1988. On the other hand, he created a doubt about is own statement by stating that he did not know whether Savio knew about these declarations or not. Secondly, on behalf of the respondent head of the family, in course of cross-examination of Benvinda, it was suggested that she had approached father Lobo “after 10.9.88” and and not “on 10.9.88”. This suggestion is indeed queer and would create a doubt about the knowledge of ornaments being attributed to Savio on 10.9.88. 7 7. When sole paragraph of Article 1379 requires a party to apply on the very same day, on which he gets knowledge, if he has not objected to the declaration within 48 hours, the rigour of the Article itself would necessitate that every fact must be strictly proved, since it leads to a serious consequences of depriving a party of participating in the inheritance. Therefore, though ordinarily, the appellate Court ought to be slow in disturbing the findings of the fact recorded by the trial Court on the basis of oral evidence, the grave consequences, coupled with two doubtful circumstances enumerated above, necessitate that the order of the trial Judge, must be set aside. 8. In the result, the appeal is allowed. The impugned order is set aside. The learned trial Judge is directed to rehear the application on merits proceeding further from the point of adjudication on the question of limitation i.e. without reopening the question of limitation. R. C. CHAVAN, J. SMA 8