1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO. 37 OF 2003. 1. Maria Santanade Souza e Lorena daughter of late Miguel Caetano D'Souza 2. Jose Lorena, businessman, Both residing at Santismo, Taleigao, Ilhas, Goa. ... Appellants Versus 1. Miguel Caetano De Souza Residing at Santismo, Taleigao Ilhas, Goa (deceased) 2. Joaquim D Souza and his wife 3. Surekha D Souza, both residing at Santismo, Taleigao, Ilhas, Goa 4. Menino D Souza and his wife 5. Maria D Souza, both residing at Santismo Taleigao, lhas, Goa 6. Isabel D Souza and husband 7. Baptista Dias, both residing at Caranzalem, Goa. 8. Mrs.Lawrenca D Souza and her husband 9. Joaquim D Souza, both residing at Asnora Goa 10. Miguel Arcanjo D Souza and his wife. 2 11. Piedade Falcao D Souza, both residing at Santismo, Taleigao, Goa .. Respondents Mr. M. B. D' Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the appellants. Mr. Shivan Dessai, Advocate for the respondents CORAM : R. C. CHAVAN,J. Date of reserving the judgment : 26 th August,2008. Date of pronouncing the judgment : 29 th August, 2008. ORAL JUDGMENT : 1. This appeal is directed against order passed by the learned Civil Judge,Senior Division, Panaji, whereby the learned Civil Judge held that four properties mentioned by the appellants in application dated 30.7.96, need not be included in assets of inheritance. 2. Facts, which are relevant for disposal of this appeal, are as under :- On 15.2.1995,Ruzai Monteiro expired leaving behind her widower Miguel and children. In December 1995, appellants initiated inventory proceedings, in which Miguel was appointed as Cabeca de Casal. On 30.7.96, appellant No.2 filed an application seeking deletion 3 of item No.2 in the list furnished by Cabeca de Casal and inclusion of four items. Item No.2 in list filed by Cabeca de Casal, was a house property bearing No.124-New (148-old), in respect of which late Ruzai was mundkar. Appellants claimed that this property belongs to them independently. The learned Counsel for appellants states that his clients would file suit in respect of this property and therefore, did not press for reversal of learned Judge's order refusing to exclude this property. 3. By application dated 30.7.96, appellants wanted inclusion of properties bearing serial nos. 46/11, 46/10, 33/1 and house property bearing house No.138, included in S. No.172/15, which prayer too the learned Civil Judge rejected, propelling appellants to this Court. Miguel died during the pendency of this appeal. 4. I have heard learned Senior Counsel Mr. D'Costa for the appellants and Advocate Dessai for respondents. Appellants rely on form No.1/XIV (record of rights and crop statements) in respect of properties, which they wanted to be included. They show that S. No.33/1 was owned by Communidade of Taleigao and shows the name of Miguel as tenant along with one Maria. F.S.Nos. 46/10 and 46/11 too are shown to be owned by Communidad with Miguel as tenant. F.S. No.100/2 is held by Miguel himself as the occupant, and was already shown in item No.1 of the list submitted by Cabeca de Casal. The 4 dispute is only in respect of its area, whether it is 1369 square metre or 1213 square metre. The Cabeca de Casal had not disputed his being tenant of properties bearing S.Nos. 33/1, 46/10 and 46/11. 5. The learned Senior Counsel for appellants submitted that with effect from 20.04.1976, the tiller's day in Goa, all tenants became deemed owners under section 18A of the Tenancy Act. Ruzai, on whose death inventory opened, was wife of tenant Miguel. Since there was no pre-marriage agreement between Ruzai and Miguel, entire property of each of them formed “community of assets”. Thus Ruzai had an equal share in these properties, and so the properties to the extent of Ruzai's share would belong to inheritance. 6. The learned Counsel for respondent opposed this, but could not spell out as to how tenant's own family members could claim that property did not belong to the tenant. Whatever contentions may be open to landlord (i.e. Communidade) or the State in this behalf, cannot be allowed to be raised by persons claiming through the tenant (who too died during the pendency of this appeal.) 7. The learned Civil Judge had erroneously come to hold that unless Ruzai or the present appellants were co-tenants with Miguel, they would have no right. First, he should have seen that on the tiller's day, 5 tenant became deemed purchaser. It was not open to tenant's family to contend that he did not. Secondly, by the concept of “Community of assets”, Ruzai had an equal share in the property upon her marriage to Miguel and so the fields belonged to inheritance. 8. F.S.No.100/2 is already included and the dispute pertains only to area. Appellants state that they would separately pursue their remedies for exclusion of H.No.124 (New.) In view of this, the impugned order cannot be sustained to the extent of exclusion of F.S.Nos. 33/1, 46/10 and 46/11. The appeal is, therefore, allowed and the impugned order is set aside to this extent. Costs as in the cause. R. C. CHAVAN, J. SMA