-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 106 OF 2006 1. Jose Claude Rodrigues & his wife 2. Smt. Philomena Rodrigues both presently, residents of House No.740, Chovoth, Cortalim – Goa. ..... Appellants V e r s u s 1. Mr. Pedro Sebastiao Rodrigues, (expired) represented by his L.Rs 1a. Mr. Judinho T.R. Rodrigues, son, major of age, married and his wife 1 b. Mrs. Telma M. Rodrigues, 1 c. Mr. Antonio J.R.N. Rodrigues, son, major of age, married, and his wife 1 d. Mrs. Andreza Fernandes e Rodrigues 1 e. Mr. Necessidae Rodrigues, son, major of age, married. And his wife. 1 f. Mrs. Viola D'Costa e Rodrigues All residing at H.NO.695, Chovoth, Cortalim, Mormugao, Goa. 1g. Mrs. Elizabeth Rodrigues e Dias daughter, major of age, married and her husband. 1h Mr. Carmo Dias, both residing at Maina Batim, -2- Ilhas, Goa. 1i. Mrs. Antonetta S. Rodrigues e Fernandes, daughter, major of age, Married, and her husband 1j. Mr. Proto A.J. Fernandes, both residing at 1st Arvalle, Cortalim, Goa. 2. Mr. Conceicao Rodrigues, Resident of Chvoli, Cortalim Goa. 3. Mrs. Catarina Rodrigues (deceased) Bebeapeddar, Utorda, Salcete, Goa (since deceased through her L.Rs) 3 (a) Ms Iria Pereira, Major, daughter of the deceased. 3 (b) Mr. James Pereira, Major, son-in-law of the deceased both r/o, H.NO. 440, Abade Fria Road, Margao – Goa. 3 (c) Ms. Annie Pereira, Major,son-in-law of the deceased, both R/o H.No.440, Abade Faria Road, Margao-Goa. 3 (d) Mr. Mariane Pires Major, son-in-law of the deceased, both r/o Manxe Bhat, Azossim, Ilhas, Goa. 4. Miguelinha Costa, C/o Ilbrahim Al Fares, Jania Eddia Alajhas, Street House No.24, Dihia Abdula, Salem, Kuwait. -3- 5. Max Rodrigues and his wife 6. Thereza Rodrigues, both residents of 4933, Oka Cres, Pierre Fonis, Quebee, Canda 11 K H 4. 7. Josefa Rodrigues and husband 8. Onario Rodrigues both residents of Goa Velha, Gaunkar Vaddo, Curca, Goa. 9. Francisca Rodrigues and husband 10. Luis Fernandes, Resident of Peddar, Benaulim, Salcete, Goa. 11. Piedade Pereira (abated as per Roznama dated 20.6.2002), Bebeapeddar, Salcette, Goa. ..... Respondents. Mr. M. S. Usgaonkar, Senior Advocate for the Appellants. Mr. M. B. D' Costa, Senior Advocate with Mr. J. Lobo, Advocate for the Respondents. CORAM: F. M. REIS, J. DATE : 6 th August, 2010. ORAL JUDGMENT Heard the learned Counsel for the Parties. Admit on the following substantial question of law: (1) Whether the First Appellate Court was justified in holding that the suit was not maintainable as the shares were not determined in the facts of the case ? -4- (2) Whether the First Appellate Court was justified in coming to the conclusion that the suit was not maintainable as all the co-owners were not parties to the suit filed by the Appellants ? 2. Heard finally, by consent of both the Counsel. Respondent waives service. 3. The above Appeal challenges the Judgment and Decree dated 25.04.2006, passed by the learned Addl. District Judge, South Goa, at Margao, in Regular Civil Appeal no.66/2005. The Appellants claiming to be owners of the property, filed a suit for partition against the Respondents herein in respect of the property known as “Chovatto” bearing Land Registration no.13400 and surveyed under no. 64/13 of Village Cortalim at Mormugao. It is their contention that the property originally owned and possessed by Joao Rodrigues and Ursula Rodrigues. The said Joao Rodrigues has died leaving behind his widow Ursula as his moiety holder and seven children namely Roque Inacio, Pedro, Sebastiao, Santan, being the sons of Ana Francisca, Felicidade and Edociana as their daughter. It is further their contention that there were Inventory Proceedings upon the death of said Joao Rodrigues in which the moiety holder and said widow Mrs. Ursula acquired 36/70th share, the son Roque Inacio and his wife Isabela acquired 5/70th share, the daughter Ana Francisca and her husband acquired 2/70th share, the son Pedro -5- Rodrigues acquired 5/70th share, the son Sebastiao Rodrigues acquired 6/70th share, the son Santan Rodrigues acquired 6/70th share, the daughter Felicidade Rodrigues acquired 6/70th share and the daughter Edociana Rodrigues acquired 5/70th share. It is further their contention that the daughter Felicidade Rodrigues expired on 13.4.1921 and as she was spinster, her rights devolved upon her mother. It is further their contention that the said widow Ursula Rodrigues expired on 28.01.1931 and her 36/70th share was partitioned amongst the heir and each one acquired 6/70th share. On the basis of such allotment which were effected in the said Inventory Proceedings, the suit was filed for the partition of the suit property. After the summons were served only the Respondents No.1 and 2 disputed the right of the Appellants to claim the partition of the suit property and also disputed the shares as claimed by the Appellants. 4 The learned Civil Judge, Senior Division, at Vasco, by Judgment and Decree dated 30th May, 2005, decreed the suit filed by the Appellants. The learned Trial Judge held that the Appellants had established that they had 58/70 share in the suit property in view of the allotments in the inventory proceedings to different interested parties. The claim of the Respondents no.1 and 2 that the suit was bad for non-joinder of the necessary parties came to be rejected. Being aggrieved by the said Judgment and Decree, the Respondent nos.1, 2 and 3 preferred an appeal before the learned District Judge, being Regular Civil Appeal No.66/2005. By Judgment and Decree dated 25.04.2006 the Appeal came to be allowed and the Suit filed by the -6- Appellants came to be dismissed as it was not maintainable in law. Being aggrieved with the said Judgment the Appellants have preferred the present Second Appeal. 5. Dealing with the first substantial question of law, the learned District Judge has come to the conclusion that the suit is not maintainable as the shares have not been determined in the inventory proceedings. In support of the contention, the learned Judge has relied upon the Judgment of this Court reported in 1991 (4) Bom. C. R. 400 in the case of Cruz Fernandes vs. Smt. Gregorina Estefania Sofia Fernandes. On perusal of the said Judgment, I find that the said Judgment is not applicable to the facts of the present case. Admittedly, in the present case, the shares of the parties were duly determined in the Inventory proceedings which were initiated upon the death of their common ancestors namely the said father and his wife the said Ursula. After the shares were duly determined in the Inventory Proceedings, the Appellants contend that some of the co-heirs have transferred their shares allotted to them in their favour. As such, as the shares have been duly determined it cannot be said that the suit is not maintainable. 6. The learned Senior Counsel appearing for the Respondents in fact does not dispute that the suit is maintainable but only disputes the legality of the transfer of shares by some of the heirs in favour of the Appellants. Be that as it may, as the shares have already been determined, the only exercise to be done by the Court below is to ascertain whether such transfers are in -7- accordance with law and compute the shares of the parties. For such determination, no Inventory Proceedings are necessary. In such circumstances, the lower Appellate Court has failed to determine the shares of the respective parties on the spacious plea that the suit was not maintainable. The shares will have to be determined by the lower Appellate Court afresh after hearing both the parties on the basis of the material on record. In view of the above, the findings of the First Appellate Court to the effect that the suit is not maintainable as Inventory Proceedings have not been initiated, cannot be sustained. Consequently, the findings to that effect are to be set aside and the matter remanded to the First Appellant Court to compute the shares of the respective parties on the basis of material on record. The first substantial question of law is answered accordingly. 7. Dealing with the next substantial question of law, Shri M. S. Usgaonkar, the learned Senior Counsel appearing for the Appellants has submitted that though some of the Defendants in the original suit had expired during the pendency of the proceedings before the learned Trial Judge, it is his contention that there is no irregularity in such proceedings as according to him, effective measures have been taken by the Appellants before the Trial Court to the effect that the legal representatives of the deceased Respondents need not be brought on record. He further submitted that in view of the transfers effect in favour of the Appellants, the deceased-Defendants were not necessary parties to the suit. The learned Senior Counsel appearing for the Respondents has submitted that Defendant no. 7 could not be served as he -8- had expired before the filing of the suit. The learned Senior Counsel appearing for the Appellants has submitted that there was substantial representation of the estate of the said deceased Defendant no.7. 8. On perusal of the impugned Judgment, I find that the learned District Judge has not considered the said contention raised by the Appellants to come to the conclusion as to whether any co-owners were left out in the suit for the purpose of partitioning the suit property. There can be no dispute that in a suit for partition all co-owners are to be made parties to such proceedings. Nevertheless, considering the said submissions of the learned Senior Counsel for the Appellants, the First Appellate Court has to re-assess that the material on record and ascertain as to whether any legal representative of the deceased Defendant have been left out or whether the Appellants are entitled to seek an exemption of bringing such legal representatives on record as contended by the learned Senior Counsel appearing for the Appellants. As the First Appellate Court has failed to consider the said aspect of the matter, I find that in the interest of justice, the First Appellate Court should decide the second substantial question of law as to whether the suit stands abated upon the death of the co-owners and on failure on the part of the Appellants to bring the legal representatives on record to be decided afresh after giving both the parties an opportunity to be heard. 9. All the contentions raised by both the parties on that aspect are left open. -9- 10. In view of the above, I pass the following : ORDER (i) The above Appeal is partly allowed. (ii) The impugned Judgment and Decree passed by the learned Addl. District Judge, South Goa, Margao, in Regular Civil Appeal no. 66/2005 is quashed and set aside. The learned Addl. District Judge is directed to decide the said appeal afresh after giving hearing to both the parties in the light of observations made hereinabove. (iii) All the contentions raised by the parties are left open. (iv)Parties to appear before the learned Addl. District Judge on 06.09.2010 at 10.00 a.m. (v) Appeal stands disposed of accordingly with no Orders as to costs. F. M. REIS, J. arp/*