1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 510 OF 2011 Berta Antoneta Violeta Maria Dias, alias, Berta Dias, aged 87 years, Holy Spirit House, Pirazona Moira, Bardez, Goa. …. Petitioner V/s Confraria da Capela da S. Ana, of Muddavado, Saligao, Bardez, Goa, represented by its attorney Shri Martinho H. D'Silva, resident of H.No.108/A, Muddavado, Saligao, Bardez, Goa. …. Respondent Shri M.B. Da Costa, Senior Advocate with Shri J.A. Lobo, Advocate for the Petitioner. Shri J.E. Coelho Pereira, Senior Advocate with Shri V. Korgaonkar, Advocate for the Respondent. CORAM : F.M. REIS, J. DATE : 21st NOVEMBER, 2011 JUDGMENT : Heard Shri M.B. Da Costa, learned Senior Counsel appearing for the petitioner and Shri J.E. Coelho Pereira, learned Senior Counsel appearing for the respondent. 2. Rule. Heard forthwith with the consent of the learned Senior 2 Counsel. Learned Counsel Shri V. Korgaonkar waives service on behalf of the respondent. 3. The above petition challenges the judgment dated 28/04/2011 passed by the learned Adhoc District Judge, North Goa at Panaji in Miscellaneous Civil Appeal No.35/2011 whereby the appeal preferred by the respondent was allowed and order passed by the learned Civil Judge Senior Division at Mapusa dated 11/03/2011 in the Inventory Proceedings No.382/2009 was quashed and set aside. 4. Briefly, the facts of the case are that Inventory Proceedings have been initiated by the respondent/Cabeca de Casal on the basis that the respondent is the testamentary heir of Fr. Cosme Jose Feliciano Corderio, on whose death the inventory proceedings were filed. Statement on oath of the respondent was sworn and the list of assets came to be filed in the said proceedings. Thereafter, the appellant filed an application in the said proceedings to be impleaded as interested parties on the basis that she was an usufructuary heir of deceased Fr. Cosme. The said request of the respondent was allowed and at the foot of the assets a note was 3 made that the respondent had a lifetime interest in all the assets of the deceased. Thereafter, the petitioner filed an application dated 30/09/2010 bringing to the notice of the Inventory Court that the properties at item no.4 and 5 were sold pursuant to two sale deeds dated 21/05/2009 and, as such, prayed for a direction that the respondent be directed to deposit the sale consideration of item no.4 & 5 in the Inventory Court. The said application was objected by the respondent, but however, the learned Civil Judge Senior Division, Mapusa upon hearing the parties by order dated 11/03/2011 directed the respondent to deposit the sale consideration in the Court on or before the next date of hearing. 5. Being aggrieved by the said order, the respondent preferred an appeal before the learned Adhoc District Judge being Miscellaneous Civil Appeal No.35/2011 which came to be disposed of by the impugned judgment dated 28/04/2011 allowing the appeal preferred by the respondent. Being aggrieved by the said judgment, the petitioner preferred the present petition. 6. Shri M.B. Da Costa, learned Senior Counsel appearing for the petitioner has assailed the impugned judgment and pointed out 4 that the learned Judge has totally misconstrued the provisions of the Portuguese Civil Code with regard to the fact that the petitioner has an lifetime usufruct over the property which has been sold and, as such, has come to an erroneous conclusion that the petitioner is not entitled for a direction to deposit the amount of consideration before the Inventory Court. The learned Senior Counsel has taken me through the provisions of the Portuguese Civil Code and pointed out that the law is well settled that the respondent was not entitled to execute the Sale Deed in view of the fact that the petitioner had lifetime usufruct over the property enlisted at item no.4 & 5. Learned Senior Counsel has taken me through the Will executed by the deceased and pointed out that as per the said Will the properties were bequeathed to the respondent, but however, lifetime usufruct were reserved in favour of the three persons including the petitioner herein. Learned Senior Counsel further pointed out that considering that one of the usufructuary Idalina had expired before the testator her share of usufruct has accrued in favour of the other two usufruct ones which were living at the time of the death of the testator. Learned Senior Counsel further pointed out that at the time of the death of the testator only two usufructuaries had survived namely the petitioner and Jose Joao, 5 who had now expired and, as such, according to learned Senior Counsel his share of usufruct has also accrued in favour of the petitioner. Learned Senior Counsel has taken me through the commentaries of the Treatise of Dr. Cunha Gonsalves and pointed out that according to the learned Senior Counsel such share accrues in favour of the petitioner. Learned Senior Counsel has taken me through the impugned judgment and pointed out that the lower Appellate Court has totally misdirected itself while passing the impugned judgment and, as such, impugned the same deserves to be quashed and set aside. 7. On the other hand, Shri J.E. Coelho Pereira, learned Senior Counsel has supported the impugned judgment. Learned Senior Counsel has pointed out that though the usufructuary has got a right during her lifetime to enjoy the properties but considering that the petitioner is housed at an old age home some unknown persons are taking advantage of the situation to claim the amount on behalf of the said petitioner. Learned Senior Counsel has further relied upon Article 2197 of the Portuguese Civil Code and pointed out what is the effect of usufruct and the nature thereof. Learned Senior Counsel has also relied upon Article 1833 of the 6 Portuguese Civil Code and pointed out that when there is no specific period for such usufruct to last the same gets determined upon the death of such usufructuary. Learned Senior Counsel further submitted that upon the death of said Jose Joao as far as his share is concerned it reverts back to the respondent who is the owner of the said property. Learned Senior Counsel further points out that the respondent has not received total consideration of Rs.84 lacs as mentioned in the two Sale Deeds, but only a sum of Rs.45,000/- has been received from the purchase and the balance amount is to be received from such purchaser after the mutation is carried out in accordance with the terms of the sale deed. Learned Senior Counsel, as such, submitted that the lower Appellate Court has rightly appreciated the material on record and has come to the conclusion that the petitioner is not entitled for any direction to the effect that the amount of consideration received by the respondent is to be deposited before the Inventory Court. 8. Having heard the learned Counsel and on perusal of the record, specially the Will executed by the testator, it is manifestly clear that the usufructuary right of the petitioner still subsists. There is no dispute that the said Idalina to whom the usufructuary Rs.45,00,000/- Correction carried out as per order dated 7/03/2012 passed in M.C.A. No.266 of 2012. 7 right was also reserved in the said Will predeceased the testator. Under Article 1852 of the Portuguese Civil Code, in cases in which the legatee has predeceased the testator the right of such legatee accrues to the benefits of the other legatee of the testator. Hence, the share of the said Idalina accrues to the of the petitioner and the said Jose Joao. There is no dispute that the said Jose Joao expired after the death of the testator. The point for consideration as such would be whether the share of the said Jose Joao would accrue to the share of the petitioner. Article 1854 of the Portuguese Civil Code clearly provides that there can be no accretion between legatees. In the present case, considering that an usufruct has been reserved simultaneously in favour of two persons in equal shares such right of accretion will not be available to the petitioner. The half share of Jose Joao in the usufruct would go back to the respondents upon his death. This aspect has also found support in the Treatise of Dr. Cunha Gonsalves volume 11 page 360 which reads as translated as under:- In case of simultaneous usufruct, the extension of the right of the joint usufruct can be either fixed or invariable, because the part/portion of each one was established in specific proportion or in perfect equality, or could be variable as 8 when all those are called to enjoy the whole thing, division of which was not pre-ordered although, this may result from the respective one. In the first of the hypothesis, in the absence of one of the usufruct or anyone who may legally substitute him in the usufruct the respective portion goes back to the owner........ 9. As such the lower Appellate Court was not justified to come to the conclusion that the petitioner who had an usufructuary right in the said two properties which were enlisted at item no.4 & 5 did not have any interest or right in the consideration received by the respondent. The half share of the usufruct in favour of the petitioner which share is not disputed in the present proceedings by the respondents as such would still subsists until the same gets determined in accordance with law. 10. The contention of the learned Senior Counsel Shri J.E. Coelho Pereira appearing for the respondents to the effect that despite of the sale of the property in favour of the purchasers pursuant to the Sale Deed executed by respondent no.1 the usufructuary right of the petitioner would not be affected, cannot be accepted. Considering that the petitioner had a lifetime usufruct 9 over the property enlisted at item no.4 & 5 the question of respondents transferring the possession of the property in favour of the purchaser does not arise at all. On perusal of the Sale Deed the recital therein discloses that the respondents had even transferred the possession of the property in favour of the purchasers therein. Considering the said aspect, it cannot be accepted that the usufructuary right of the petitioner can be enjoyed by the petitioner despite of execution of the said Sale Deed. The consideration received was to transfer the ownership and possession of the said two properties. 11. In the present case, considering the facts and circumstances of the case there is no dispute that pursuant to the two Sale Deeds executed in the year 2009 the consideration receivable by the respondent totals a sum of Rs.84 lacs. Out of the said amount it is not disputed that the respondent has received a sum of Rs.45 lacs and the balance amount is due to be received by the respondent in due course of time. This Court in the Judgment reported in 1998(2)GLT 181 in the case of Balcrishna Narayan Kamat Dalal Vs Shri Vassudev Narayan Kamat Dalal has held that the value of the lifetime usufruct is equal to ten times annual income which 10 corresponds to half of the full property as determined in accordance with Article 607 of Portuguese Civil Code. 12. However considering that the rights of the petitioners in the usufruct is to the extent of 1/2 in the said properties the petitioner would be entitled only to the interest accrued in respect of half of the consideration mentioned in the Sale Deed. Article 2248 of the Portuguese Civil Code is provides as under : “If the thing subject to usufruct is acquired for public purpose, on the whole or partly, the compensation shall, if there is no agreement between the interested parties, be used for the purchase of titles of consolidated public funds or lent for interest on mortgage, according to the desire of the owner; in this second case, however, the holder of usufruct shall be previously heard regarding the suitability of the said mortgage, and he shall be entitled to the interest while the usufruct subsists.” 13. In the present case, though the said properties of the deceased have not been acquired as contemplated under Article 2248, nevertheless by analogy the same can be made applicable in the present case. Regarding the amount of consideration which is stated to be deposited in Fixed Deposit before the Nationalized Bank, I find that in the facts of this case the petitioner would be 11 entitled only to the interest accrued on a sum of Rs.42 lacs only. Shri J.E. Coelho Pereira, learned Senior Counsel points out that the interest rate is fluctuating from 7 to 9.5% per annum during the period from 2009 up to this date in Nationalized Banks. Considering the said aspect, I find it appropriate that the petitioner be paid interest at the rate of 8% p.a. simple interest on the said amount from 1/06/2009 up to the time the usufruct subsists. Shri J.E. Coelho Pereira, learned Senior Counsel points out that as far as the arrears of the said interest is concerned the respondent shall deposit before the Inventory Court within four weeks from today and deposit the future interest at the same rate before the Inventory Court every three months. The said statement of the learned Senior Counsel is accepted. The Inventory Court shall permit the petitioner to withdraw the said amount as and when the said amount is deposited before the Inventory Court. 14. For the aforesaid reasons, I find that the learned lower Appellate Court was not justified to come to the conclusion that despite of the conveyance the petitioner can enjoy the property. The learned Judge failed to apply the relevant provisions of law and erroneously allowed the appeal preferred by the respondent. 12 15. In view of the above I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment dated 28/04/2011 passed by the learned Additional District Judge, North Goa, Panaji is quashed and set aside. (iii) The application filed by the petitioner dated 30/09/2010 is partly allowed and the respondent is directed to pay to the petitioner interest at the rate of 8% p.a. on the sum of Rs.42 lacs from 1/06/2009 up to the usufruct of the petitioner stands determined in accordance with law. (iv) The amount shall be deposited in manner herein above and the learned Judge shall disburse the amount in the manner stated herein above. (v) Rule is made absolute in the above terms. (vi) Application dated 30/09/2010 and the petition stands disposed of accordingly with no order as to costs. F.M. REIS, J. NH/-