-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 21 OF 2011 WITH SECOND APPEAL NO. 24 OF 2011 Mr. Shivaji Narayan Gaonkar, son of Shri Narayan Gaonkar, 54 years of age, service, Resident of H. No. 907, Alto Torda, Porvorim, Bardez-Goa. …... Appellants V e r s u s 1. Mr. Claudio Francisco Remedios Marques alias Claudio Marques, Major of age, 2. Mrs. Claudio Marques, wife of Claudio Francisco Remedios Marques, major of age, both residents of Near Sakhelim Police Station, (Old Bus Stand). 3. Mrs. Lurdina Eufrezina Martins wife of Joao Martins, major of age, landlady, Resident of Paitond, Salvador do Mundo, Bardez, Goa. And presently resident of C/o. Caludio Francisco Remedios Martins, Near Sakhelim Police Station, (Old Bus Stand) Sakhelim, Goa. …... Respondents Mr. Nitin Sardessai, Advocate for the Appellant. Mr. S. D. Lotlikar, Senior Advocate with Ms. Sudha Pai Kir, Advocate for the Respondents. -2- Coram :- F. M. REIS, J Date : 13 th October, 2011. ORAL JUDGMENT The above Appeal challenges the Judgments passed by the Courts below, whereby the suit filed by the Appellant came to be dismissed and a counter claim filed by the Respondents was allowed and consequently the Deed of Sale dated 26.12.1989, registered before the Sub-Registrar, was declared null and void and the registration was ordered to be cancelled. The Appellant was also restrained from interfering in any manner or carrying out any construction in the suit property. 2. Briefly, the facts of the case are that the Appellant filed the suit on the ground that there exists a property known as “Pottorem Varica” surveyed under no. 151/16 of Village of Salvador do Mundo, which originally belonged to one Joao Martins and his wife Mrs. Lurdina Martins, who is the Respondent no.3 herein. It is further their contention that the Respondent nos. 1 and 2 are the daughter and son in law and that by virtue of a purchase of the said property by Deed of Sale dated 26.12.1989, the Appellant became the sole owner in possession of the suit property. It is further the case of the Appellant that he has been carrying out lots of activities in the suit property since their purchase and carried out development by clearing the bushes of the suit property. It is further his contention that he started completing the barbed wire fencing surrounding the suit property and for such purpose, he sought permission from the local Panchayat. He also obtained -3- certified copy from the Talathi of the Survey Records and he was shocked to see on 27.01.1993 that the name of the Respondent no.1 appeared in the place of entry of the Respondent no.3 being the co-owner in the occupant's column in the Survey Records. It is further his case that such entries have taken place in view of the Deed of Gift executed by Respondent no.3 in favour of Respondent no.1 and according to the Appellant, is a nullity as the spouse of the Respondent no.3 and other joint owners are not the parties and signatories to the said Deed of Gift. It is further his case that the said Joao Martins expired subsequent to the said Deed of Gift and in view of the unlawful mutation entry, it is the contention of the Appellant that Respondent No.1 intends to interfere with the suit property and, accordingly, the suit came to be filed to restrain the Respondents by a permanent injunction from inter alia doing any construction in the suit property, constructing, alienating or transferring or selling or interfering therein and also for a decree for restoration of possession of the suit property and to declare the Deed of Gift as null and void. 3. The Respondents were duly served and filed their written statement and claimed inter alia that the Appellant did not have any right, title or interest in the suit property or any part thereof. It is further their case that the suit property belongs to the Respondent no.3 who had inherited the same from her parents and that the alleged Deed of Sale dated 26.12.1989 is a complete fraud played by the Appellant and did not transfer any right in his favour. The said Deed was signed by the deceased husband of the Respondent no.3 by virtue of Power of Attorney which was not executed by the Respondent no.3. It is further their case that the Respondent no.3 had never been to the office of the Notary Sanjiv G. Sardessai on 13.10.1989 or any other date. The relationship between the Respondent no.3 and -4- her husband were strained much prior to the year 1982 and her said husband was an alcoholic and, as such, the Respondent no.3 and her daughter shifted out from the conjugal house in the year 1982. It is further their case that the Respondents have been visiting the suit property from time to time and they found on one occasion that some persons had illegally cut some wood and, as such, immediately, a temporary shed was built by the Respondents in the suit property and engaged a watchman. A counter claim was also raised by the Respondents on the ground that the Appellant for the first time interfered with the property in the year 1994 and, inter alia, prayed that the Sale Deed dated 26.12.1989 be declared as null and void and the registration be ordered to be cancelled. 4. Written statement was filed by the Appellant to the said counter claim and claimed that the Respondents have no right, title and interest to the suit property since the execution of the Sale Deed dated 26.12.1989. 5. After framing the issues and recording of evidence, the learned Judge by Judgment and Decree dated 31.03.2009, dismissed the suit filed by the Appellant and allowed the counter claim filed by the Respondents. Whilst disposing of the said suit, the learned Judge came to the conclusion that the Appellant failed to establish that he is the owner in possession of the suit property and that the Deed of Gift executed by Respondent no.3 in favour of Respondent no.1 is null and void. The learned Judge further came to the conclusion that the Power of Attorney dated 13.10.1989 is a fraudulent document and that the relationship between the Respondent no.3 and her husband was strained from the year 1982. The learned Judge further found that the Respondents were the -5- exclusive owners of the suit properties. The learned Judge further held that the Appellant was not entitled for any reliefs in the suit. The Appellant preferred an Appeal before the learned Addl. District Judge, being Regular Civil Appeal no. 90/2009 which by Judgment and Decree dated 31.08.2010 came to be dismissed. The learned Lower Appellate Court held that the Sale Deed dated 26.12.1989 is null and void and ordered its cancellation. Whilst re-appreciating the evidence on record, the Lower Appellate Court came to the conclusion that the Appellant has failed to establish that the Deed of Gift dated 02.04.1990 is null and void. The learned Judge further found that the Sale Deed dated 26.12.1989 relied upon by the Appellant is null and void. The learned Judge whilst appreciating the evidence on record, has come to the conclusion that as the Appellant has failed to produce the Power of Attorney which was part of the Sale Deed, relied by him, the Appellant has failed to establish the existence of such Power of Attorney which entitled the said deceased Joao to execute the said Sale Deed on behalf of Respondent no.3. The learned Judge rejected the contention of the Appellant that any presumption under Section 85 could be drawn with that regard. The learned Judge as such found that the Appellant has failed to establish his ownership in respect of the suit property and, as such, he had no locus standi to challenge the Deed of Gift. 6. Considering the material on record, the learned Judge came to the conclusion that the Appellant had no right or interest over the suit property and, as such, dismissed the Appeal preferred by Appellant. Being aggrieved by the said Judgments passed by the Courts below, the Appellant has preferred the present Appeal. -6- 7. Shri N. Sardessai, learned Counsel, appearing for the Appellant has assailed the impugned Judgment essentially on one count. It is his submission that though there are concurrent findings of fact to the effect that the Respondent no.3 had not executed the Sale Deed, nevertheless considering that the deceased Joao who was the husband of the Respondent no.3 had admittedly executed the impugned Sale Deed, the Sale Deed would have to be read down and restricted to the half share of the said Joao over the suit property. Learned Counsel has further pointed out that the Courts below have erroneously declared the whole Sale Deed null and void when the same should have been restricted to only one half share of the Respondent no.3. In support of his submission, he has relied upon the Judgment of the Division Bench of this Court reported in 2010 (6) Bom. C.R. 554 in the case of Primella Sanitary Products Pvt. Ltd., vs. Gurudas Vishwanath Sinai Gaitonde & Ors. 8. On the other hand, Shri S. D. Lotlikar, learned Senior Counsel, supported the impugned Judgment . He submitted that no such contention was raised before the Courts below and as such no substantial question of law arises in the present Appeal on that court. Apart from that, the learned Counsel further points out that under the provisions of Article 1119 of the Portuguese Civil Code, once spouse is not entitled to alienate the property without the consent of the other spouse and as such as admittedly, no such consent was obtained, the question of restricting the sale of the property to the extent of one half does not arise at all. 9. I have considered the submission of learned Counsel appearing for -7- the parties and perused the Judgments relied upon by the learned Counsel appearing for the Appellant. With regard to the submissions of the learned Counsel appearing for the Appellant, on perusal of the impugned Judgments passed by the Courts below, I find that the Appellant had not even raised such contention before the Courts below. As such, as no such contention was raised, no substantial question of law arises for determination on such count in the present Appeal. Apart from that, the Judgment of the Division Bench relied upon by the learned Counsel appearing for the Appellant is not at all applicable to the facts and circumstances of the present case. It is not in dispute that the learned Division Bench of this Court was dealing with a suit for specific performance of an Agreement wherein some of the co-owners of the property having specific shares had executed an Agreement for Sale and in such circumstances, the learned Division Bench held that there is no bar to get a transfer of such undivided shares of the co-owners who are parties to the Agreement for sale. This is not at all the situation in the present case. Article 1119 of the Portuguese Civil Code clearly provides that immoveable properties whether common or exclusive of either spouse, shall not be alienated or charged in any manner without the consent and agreement of both. In the present case, it cannot be disputed that the Respondent no.3 had not given any consent to the deceased Joao to execute the disputed Sale Deed. The Respondent no.3 is admittedly a moiety sharer in the properties of the couple. Such moiety sharer cannot be equated to a co-ownership sharer. By virtue of a marriage by the Respondent no.3 with late Joao under regime of communion of assets, such communion between the spouses consists of all properties present and future and not excluded by law. Article 1191 of the Portuguese Civil Code, provides that the husband is not permitted without the consent of his wife either to alienate -8- immoveable properties or to move the Court in respect of the disputes regarding ownership or possession of immoveable properties. Paragraph 1 thereof provides that such consent can be made good judicially when the wife refuses to give such consent. Article 1196 of the Portuguese Civil Code provides that the authorisation to carry on business or to hypothecate or to alienate immoveable properties or to file suits in the Courts, may only be granted under an authentic or authenticated document. As such, considering the said provisions of the Portuguese Civil Code, the Deed executed by the late Joao, is a nullity in law for want of such authorisation and/or consent by the Respondent no.3. Article 1121 of the Portuguese Civil Code clearly provides that the communion ends by dissolution of the marriage or by separation in accordance with the law. In the present case, at the time when the disputed transaction took place, the communion had not ended. Article 1117 of the Portuguese Civil Code also provides that the ownership and possession of the common properties vests in both spouses during the subsistence of the marriage. Reading the said provisions of the Civil Code, I find that the legislature has imposed a sterner regime imposing the provisions of Article 1119 of the Civil Code which makes the consent mandatory and common agreement for the alienation of immovable properties. These provisions should be read together with Article 1191 of the Portuguese Civil Code relating to the husband alienating the immovable properties, wherein the consent of the wife is required. Considering the dissolution of the marital regime as provided in Article 1121 of the Civil Code, occurs with the dissolution of the marriage or with separation in accordance with law, the question of the spouse alienating immovable properties without the consent of the other spouse in accordance with law, will entail nullity of such transaction. All these aspects infer that the moiety share in the immoveable -9- properties of the couple is not transferable in law and cannot be equated to a share of a co-owner in an immovable property. As such, the Judgment of the learned Division Bench of this Court is not at all applicable to the facts of the present case. The Sale Deed relied by the Appellant is a nullity in law and, as such, the contention of the learned Counsel appearing for the Appellant Shri Sardessai, that the said Sale Deed is to be read down to the extent of half share of the deceased Joao, deserves to be rejected. 10. As such, I find that there is no merit in the above Second Appeal nor any substantial question of law arises for consideration by this Court under Section 100 of the Civil Procedure Code. Hence, the Appeals stand dismissed accordingly. F .M. REIS, J. arp/*