-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 498 OF 2003 Surendra Govind Naik Chodankar H. No. 131, Fontainhas, Panaji. …... Petitioner V e r s u s Govind Bhiku Naik Chodankar, & His wife of Fontainhas, Panaji. …... Deceased Bhiku Govind Naik Chodankar son of Govind Bhiku Chodankar, H.No. 131, Fontainhas, (Mala) Panaji. …... Respondent All addresses are registered addresses Mr. M. S. Usgaonkar, Senior Advocate with Mr. Sudin Usgaonkar, Advocate for the Petitioner. Mr. Coelho Pereira, Senior Advocate with Mr. S. Karpe, Advocate for the Respondent. CORAM: R. M. SAVANT, J. DATE : 14 th December, 2009. ORAL JUDGMENT This Writ Petition takes exception to the Order dated 15.01.2000, passed by the learned Addl. District Judge, Panaji, by which Order, the Misc. Civil Appeal no. 68/1999 filed by the Petitioner came to be rejected and the Order passed by the Trial Court i.e. the learned Civil Judge, Senior Division, Panaji, dated 03.04.1999 came to be confirmed. 2. The factual matrix involved in the above Petition can be stated -2- thus : The Petitioner and the Respondent are the sons of one Govind Naik Chodankar. The said Govind Naik Chodankar and his wife by a Gift Deed dated 21.08.1939 gifted the suit property to the Respondent. The Petitioner was born on 19.06.1943 i.e. after the said Gift Deed so also the Petitioner's brother one Narendra. The father of the Petitioner, the said Govind, died on 21.11.1958. The Petitioner's mother Anandibai initiated Inventory no. 24/1972 on the death of her husband. The said proceedings were ordered to be kept dormant in the year 1977. The Petitioner's mother Anandi died on 22.04.1978. The Petitioner, to be precise, on 04.08.1982, filed an application for confirmation of his title and possession of the suit property. The said application came to be disposed of by the Enquiry Officer, City Survey, by Order dated 19.07.1988. In the said Order, it has been observed that the Respondent herein admits that the Petitioner is in occupation of one room of the house and that the remaining portion of the house is occupied by the Respondent. It has further been recorded in the said Order that the Petitioner Surendra admits that the suit property is in the name of the Respondent herein and that the same is his ancestral house which is not yet partitioned. After the said proceedings before the Survey Officer were disposed of, the Petitioner filed Inventory Proceedings no. 34/1989/A invoking Article 1492 so as to contend that the Gift Deed made by his parents suffers from in-officiousness and sought reduction of the property disposed of by the said Gift Deed on the said basis. In the said Inventory Proceedings, the Respondent herein filed his objections, inter alia, thereby objecting to the -3- reduction of the Gift on the ground that the property by virtue of the Gift belongs absolutely to him. The said objections were considered by the Court and by an Order dated 30.01.1996, the said objections filed by the Respondent were rejected. 3. Aggrieved by the Order dated 31.01.1996, the Respondent filed an Appeal before the District Court. The said Appeal came to be allowed and the matter in respect of the objections filed by the Respondent came to be remanded back to the Trial Court for a denovo hearing. On remand, the Trial Court heard the matter and dropped the Inventory Proceedings and thereby upheld the objections filed by the Respondent. The Trial Court, inter alia, held that the proceedings as initiated in the year 1989 were barred by limitation and for the said purpose, relied upon Article 1503 of the Portuguese Civil Code, which, inter alia, governs the proceedings for reduction of Gift on account of in-officiousness and which prescribes a period of two years within which the proceedings have to be filed from the day the forced heir has accepted the inheritance. The Trial Court on a consideration of Articles 2021 and 2027 held that the acceptance of inheritance has to be either expressed or tacit as postulated on a harmonious reading of the said Articles and further held that in view of the fact that the Petitioner had moved the City Survey Officer for recording his possession in respect of a part of the suit property, the Petitioner had accepted the inheritance which acceptance, according to the Trial Court, was tacit. The Trial Court further recorded a finding that the case of the Respondent herein that the period prescribed in Article 1503 would have to be -4- taken from the year 1972 when the Inventory Proceedings no. 24/72 initiated could not be accepted in view of the fact that there could not have been any acceptance at that time by the Petitioner as the Petitioner's mother Anandibai was very much alive then. As indicated above on the aforesaid grounds, the Trial Court dropped the Inventory Proceedings. 4. Aggrieved by the said Order of the Trial Court dated 03.01.1999, the Petitioner filed an Appeal being Misc. Civil Appeal no. 68/1999, in the District Court at Panaji. The said Appeal was dismissed by the learned Addl. District Judge, Panaji, and thereby the findings of the Trial Court on the issue of the said proceedings barred by limitation, were confirmed. 5. I have heard the learned Counsel for the parties. 6. On behalf of the Petitioners, the learned Senior Counsel Shri M. S. Usgaonkar submitted that it is not disputed that the Petitioner is in possession of the part of the house and, therefore, the question of applicability of the said Article 1503 would not arise. The learned Senior Counsel by relying upon the preceeding Articles to Article 1503 submitted that only when the delivery of possession is sought that the limitation as prescribed in Article 1503 would come into play. The learned Senior Counsel further submitted that in view of the fact that the Respondent had in the Inventory Proceedings no. 24/72 had applied for auction, would mean that the Respondent had thereby impliedly accepted that there could be no dispute in so far as the assets of the -5- father are concerned and the dispute, if any, in the instant application would, therefore, be as regards the assets of the mother and therefore, the point of limitation on which ground, both the Courts held against the Petitioner would at the highest apply in respect of the assets of the mother. The learned Senior Counsel further submitted that the filing of the proceedings before the Survey Officer by the Petitioner cannot be held to be a starting point for limitation as held by the Courts below as the Petitioner was already in possession at the time of the death of the mother and had applied only for confirmation of his possession and not for acquisition of possession. The learned Senior Counsel placed reliance on the Commentary of the learned Author Dr. Cunha Gonsalves in support of his submission that the said Author qua Article 1503 has opined that the same would apply only when the forced heirs compel the donees to restore back whatever required to make up their indisposable portion legitime. The learned Senior Counsel lastly submitted that the Courts having relied upon the said proceedings initiated by the Petitioner before the Survey Officer for fixing the limitation, for the starting point of limitation have thereby erred in non-suiting the Petitioner and, therefore, the impugned Orders passed by the Court below requires interference in the hands of this Court in its writ jurisdiction. 7. Per contra, it is submitted on behalf of the Respondent by the learned Senior Counsel Shri Pereira, that the Gift made would have its effect immediately and for reduction on account of in-officiousness, steps have to be taken by the affected party. The learned Senior Counsel submitted that it is -6- only the officiousness or in-officiousness that has to be adjudicated in the said proceedings. The learned Senior Counsel further submitted that in terms of Articles 2021 and 2027, the acceptance of the inheritance has to be either expressed or tacit and in view of the fact that in the instant case the Petitioner having filed the application in the year 1982, wherein he has specifically averred that the Petitioner i.e. the Applicant along with his brothers are the co- owners of the suit property, there is a tacit acceptance of the inheritance. The learned Senior Counsel lastly submitted that the limitation as prescribed under Article 1503 for filing of the suits for proceedings, does not distinguish between a person who is in possession and a person not in possession. Learned Senior Counsel submitted that the said provisions would have to be given its full literal construction and reading the said provision in the manner as sought by the learned Senior Counsel for the Petitioner, would amount to re-writing the said provision or reading in the provision something which is not there. The learned Senior Counsel supported the Judgments of the Courts below and contended that since the Courts below have recorded concurrent findings, this Court should not interfere its writ jurisdiction and interdict in the present proceedings. 8. The question that arises for consideration is whether the limitation for the purpose of Article 1503 start after two years from the application made by the Petitioner in the year 1982 before the City Survey Officer. This would have to be adjudicated upon in the context of the relevant Articles of the Portuguese Civil Code namely Article 2021, Article 2027 and -7- Article 1503. The said Articles are, therefore, re-produced herein under for convenience sake: Article 2021 (Liberty to accept or to renounce) The acceptance or renunciation of the inheritance is an entirely voluntary and free act. Article 2027 (Forms of acceptance, Gestio pro herede) The acceptance is express or tacit. Paragraph 1: It is express, when the heir adopts such title or qualification in any public or private act. Paragraph 2: It is tacit, when the heir does some act from which the intention of accepting is necessarily inferred, or it is of such a nature that he could not do it otherwise than in the capacity of heir. Article 1503 (Limitation in respect of suit for reduction) Such claim shall prescribe in case the suit is not instituted within two years, from the date the forced heir has accepted the inheritance. 9. In the instant case, it would be pertinent to note that in so far as the first Inventory i.e. 24/1972 which was filed on the death of the father of the Petitioner and the Respondent, the said Inventory was ordered to lie dormant and has, therefore, not culminated in any final Order being passed as regards -8- the assets of the father of the Petitioner and the Respondent. The submission of the learned Senior Counsel for the Petitioners that since the Respondent had applied for auction to be held, he has impliedly accepted that auction was to be held in respect of the assets of the father notwithstanding the Gift Deed, in his favour, therefore, cannot be accepted. In fact, the statement made on behalf of the Respondent would have no consequences because firstly the said Inventory Proceedings have not culminated in any final Order being passed as also in view of the fact that the Petitioner herein has applied for reduction of the Gift on account of in-officiousness and, therefore, in terms of the said Article 1503, the proceedings or suit could have to be filed within the time frame mentioned in the said Article. 10. It would also be pertinent to note that since the proceedings have been initiated by the Petitioner for reduction on account of in-officiousness, hence, the fact whether the Petitioner is in possession or not, in my view, would not be a relevant fact for consideration of the issue of limitation. Apart from the fact that the said Article 1503 does not distinguish between the Applicant who is in possession and who is not and the said Article comes into play if the reduction of the Gift is sought on the ground of in-officiousness. The submission made on behalf of the Petitioner by the learned Senior Counsel that in view of the fact that the Petitioner was not seeking possession could not be a relevant factor for the purposes of Article 1503. The reliances of the learned Counsel for the said purpose on the Commentary by the learned author Dr Cunha Gonsalves, is also misplaced and both the Courts -9- below have, therefore, rightly held that the submission sought to be advanced on behalf of the Petitioner does not find a place in the said Commentary. A perusal of the said Commentary makes it clear that the question was the method of reduction of Gift as regulated by the Portuguese Civil Code. There are two contingencies mentioned in the said Commentary. One is when the donees or legatees ask for deliveries and the other is when the donees seek to restore back whatever to make up their in-disposable portion. The said Commentary, therefore, cannot be relied upon to support a contention that only when restoration of possession is sought, that the limitation of two years would apply and not when the party is already in possession, as is sought to be contended on behalf of the Petitioner in the instant matter. In my view, therefore, the findings of both the Courts below on that score cannot be faulted with. 11. It is an admitted position that in terms of Article 2021 and Article 2027, the acceptance of inheritance has to be either express or tacit. The issue as mentioned herein above is as regards the reduction of the Gift on account of in-officiousness. The Petitioner in his application before the Enquiry Officer, Civil Survey, indicates has approached the said authority on the premise that he along with his brothers were co-owners. The Authority has disposed of the said application by Order dated 19.07.1988 in which Order, it has been, inter alia, recorded that the Petitioner admits that the suit property is in the name of the Respondent but says that it is his ancestral house which is not yet partitioned. In the light of Article 2027, Para-II, it would have to be -10- construed that in filing the said proceedings before the Enquiry Officer and making the averments that he has made, the Petitioner has tacitly accepted the inheritance. The Courts below, therefore, on the said basis have come to a conclusion that the Petitioner should have filed the proceedings for reduction of the Gift on account of in-officiousness within two years thereof i.e by the year 1984 and the proceedings filed in the year 1989, therefore, was beyond the limitation prescribed in Article 1503. In my view, the finding of the Courts below on the said point does not merit any interference at the hands of this Court. 12. There is also considerable merit in the submission of learned Senior Counsel Shri Pereira that reading of the Article 1503 in the manner as is sought by the learned Senior Counsel appearing for the Petitioner, would amount to re-writing the Article or adding to the Article something which is not there. The said Article being a provision which prescribes limitation, in my view, it cannot be interpreted as in the manner contended by the learned Senior Counsel for the Petitioner. The said Article does not differentiate between a party in possession and a party who is not. Reading of the said Article in the manner sought by the learned Counsel for the Petitioner would also result in creating two classes of proceedings in respect of the same subject matter namely the reduction of Gift on account of in-officiousness which, in my view, is impermissible. 13. The findings of the Courts below, the gist of which has been -11- recorded in the earlier part of this Judgment in the light of what has been held herein above, do not call for any interference in the writ jurisdiction of this Court. 14. Writ Petition is accordingly dismissed. 15. Rule discharged. R. M. SAVANT, J. arp/*