-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 61 OF 2009 WITH SECOND APPEAL NO. 62 OF 2009 SECOND APPEAL NO. 61 OF 2009 1. Shri Ulhas Shankar Barde, major, businessman, 2. Smt. Urmila Ulhas Barde, major, housewife, Both are residing at House no. 105/11, Khorlim, Mapusa, Bardez, Goa. …...Appellants V e r s u s 1. Shri Harischandra Shankar Barde, major, married, through his Power of Attorney, Smt. Jaya Harishchandra Barde, major, service, resident of H. No. 105/11, Khorlim, Mapusa, Bardez-Goa. 2. Smt. Jaya Harischandra Barde, major, service, resident of H. no. 105/11, Khorlim, Mapusa, Bardez, Goa. …...Respondents Mr. Sudin Usgaonkar, Advocate with Mr. A. Borkar, Advocate for the Appellants. Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar, Advocate for the Respondents. SECOND APPEAL NO. 62 OF 2009 1. Shri Harischandra Shankar Barde, major, married, through his Power of Attorney, Smt. Jaya Harishchandra Barde, major, service, resident of H. No. 105/11, -2- Khorlim, Mapusa, Bardez-Goa. 2. Smt. Jaya Harischandra Barde, major, service, resident of H. no. 105/11, Khorlim, Mapusa, Bardez, Goa. (orig. appellants/plaintiffs) …... Appellants V e r s u s 1. Shri Ulhas Shankar Barde, major, businessman, 2. Smt. Urmila Ulhas Barde, major, housewife, Both are residing at House no. 105/11, Khorlim, Mapusa, Bardez, Goa. (orig. respondents/defendants) …... Respondents Mr. S. D. Lotlikar, Senior Advocate with Mr. P. Lotlikar, Advocate for the Appellants. Mr. Sudin Usgaonkar, Advocate with Mr. A. Borkar, Advocate for the Respondents. CORAM: F. M. REIS, J. DATE : 9 th July 2010. ORAL JUDGMENT Heard the learned Counsel for the Appellants and the Respondents. 2. Both the above Appeals have been taken up for hearing together as the impugned Judgment in both the Appeals is the same passed in Regular Civil Appeal no. 80/07 by learned District Judge-1, Panaji, dated 18.11.2008. -3- 3. Admit, on the following substantial questions of law : (a) As the finding on the plea of limitation has attained finality having been maintained on account of non-reversal in appeal, the suit stands dismissed. Therefore, the entire order of the Appellate Court stands vitiated for not having examined this aspect at all ? (b) Whether the First Appellate Court could have proceeded to dismiss the Suit of the Appellants in respect of the prayer for permanent injunction and mandatory injunction, without discussing the evidence on record by concurring with the conclusion drawn by the Trial Court and that too, without appreciating the evidence on record ? 4. Heard forthwith finally with the consent of both the Counsel. The learned Counsel for the Respondent in both the Appeals waives service. 5. The parties shall be referred in the manner as they appear in the cause title in Regular Civil Suit no. 89/1997. 6. The Appellants in Second Appeal no. 61/2009 are the Defendants in the said suit whereas the Appellants in Second Appeal no. 62/2009 are the Plaintiffs therein. The Plaintiffs filed a suit for a declaration that the Will dated 04.12.1986 was null and void and for permanent and mandatory injunction against the Defendants. It was the case of the Plaintiffs that the Plaintiff no.1 and the Defendant no.1 are brothers and that the Plaintiff -4- no.2 and Defendant no.2 are their respective spouses. It is further their case that the property surveyed under chalta no. 36 to 39 of P. T. Sheet no. 116 of Mapusa City, having an area of 744 square metres, originally belongs to late Shankar Barde father and father in law of the Plaintiffs and the Defendants. It is further their contention that the said suit property was purchased by late Shankar Barde in the year 1949 and that he was married under the law of communion of assets to late Indumati Barde, who expired on 16.11.1985. Thereafter, that by fraud, the Defendant no.1 got a Will executed in his favour dated 4.12.1986, whereby the said late Shankar Barde bequeathed the suit property and the suit common house in favour of the Defendant no.1. They further state that on the basis of the said Will, the Defendants had illegally put up a construction in the suit property and, consequently, the suit came to be filed to declare the Will dated 04.12.1986 as null and void as well as for mandatory injunction to demolish the construction put up by them. 7. The suit was resisted by the Defendants alleging that the Plaintiffs have no right to the suit property and the structure therein and that the same was being enjoyed openly, peacefully and lawfully by the Defendants from the date of the Will dated 04.12.1986. Though they admitted that the property belonged to late Shankar Barde, nevertheless, they claimed that the Plaintiff had consented to the Will when the same was executed and disputed the contention that any new construction was put up by them. The Defendants also contended that the suit was barred by limitation. 8. The learned Civil Judge Senior Division, Mapusa, after recording -5- of evidence and framing the issues, dismissed the suit filed by the Plaintiffs. The learned Judge came to the conclusion that the Will was executed in accordance with law and that the suit property was not an ancestral property. The learned Judge further held that the suit was barred by limitation as the Plaintiffs had knowledge about the said Will and no claim was put up by the Plaintiffs within the time prescribed. The learned Judge further held that the Defendants had not carried out any illegal construction. Consequently, the suit came to be dismissed. The Appeal preferred by the Plaintiffs before the learned District Judge being Regular Civil Appeal no. 80/2007, was partly allowed and the suit filed by the Plaintiffs in Regular Civil Suit no. 89/1997 was partly decreed to the extent of declaring as null and void the Will dated 04.12.1986 executed by late Shankar Barde in favour of Defendant no.1. The dismissal of the suit in respect of the remaining prayers for permanent and mandatory injunction was upheld. Being aggrieved by the said Judgment passed by the Lower Appellate Court, the present Second Appeal has been preferred by the Plaintiffs and the Defendants. 9. The learned Senior Counsel for the Plaintiffs submitted that there are no reasons given by the Lower Appellate Court to reject the prayers for permanent and mandatory injunction claimed by the Plaintiffs after the Will was declared null and void. He further submitted that as the Will is declared null and void, the question of the suit being barred by law of limitation does not -6- arise and, in any event, limitation only bars a remedy and does not legalise a null and void document. On the other hand, the learned Counsel for the Defendants submitted that as the findings on the point of limitation have not been reversed, the suit filed by the Plaintiffs deserves to be dismissed in toto irrespective as to whether the impugned Will is null and void or not. He further submitted that as the Will was executed with the consent of the Plaintiffs, the question of the Plaintiffs claiming permanent and mandatory injunction does not arise at all. He further submitted that Inventory Proceedings to partition the estate of deceased Shankar and Indumati are pending and, as such, the question of obtaining such injunction as claimed by the Plaintiffs does not arise. He further submitted that the Defendants always acted in good faith. He further submitted that the Lower Appellate Court erroneously held that the Will was null and void as the Plaintiffs were aware about its execution and no objection was taken for such execution. He further submitted that deceased Shankar was entitled in law to execute the said Will as the suit property belonged to him. 10. Dealing with the first substantial question of law with regard to the claim of the Defendants that the suit is barred by limitation, I find that on perusal of the impugned Judgment passed by the lower Appellate Court, there is no consideration at all on that aspect. The learned Judge has not given any reasons that the findings of the learned Trial Judge are set aside. While partly decreeing the suit the Trial Judge on appreciation of evidence adduced by the parties had come to the conclusion that the suit was barred by limitation. -7- There are no reasons given by the Lower Appellate Court to set aside the said findings of the learned Trial Judge. As the question of limitation raised by the Defendants has not been considered by the Lower Appellate Court this itself discloses non-application of mind on the part of the learned Appellate Court on that aspect of the matter. As such, the learned Counsel appearing for the Defendants is justified that the learned District Judge be directed to decide the issue of limitation after hearing both the parties in the said Appeal, after considering the contentions raised by the parties on that aspect. 11. Dealing with the next substantial question of law raised by the learned Senior Counsel appearing for the Plaintiffs to the effect that the issue with regard to the grant of permanent injunction as well as mandatory injunction has been refused by the Lower Appellate Court without giving any reasons, I find that on perusal of the impugned Judgment of the Lower Appellate Court, no reasons have been given as to why the said relief has been refused. The Lower Appellate Court has not even considered the evidence on record to come to the conclusion that the Plaintiffs were not entitled for a permanent injunction as well as the mandatory injunction as claimed by them. The Lower Appellate Court has only decided about the nullity of the Will without addressing itself to the aspect as to whether the Plaintiffs were entitled for the relief of permanent injunction and mandatory injunction. As such, for non consideration of the said aspect of the matter, the impugned Judgment passed by the Lower Appellate Court to that extent stands vitiated. -8- 12. The Apex Court in the Judgment reported in (2001) 3 S.C.C. 179 in the case of Santosh Hazari vs. Purshottam Tiwari, has held that improper functioning of the First Appellate Court may give rise to a substantial question of law. The Judgment of the First Appellate Court must depict conscious application of mind and record findings supported by reasons on all the issues and contentions. The Apex Court has further held that when the First Appellate Court is reversing a finding of fact, it must assign its own reason for different findings. When the view of the Trial Court is upheld, the First Appellate Court need not go into the detail, but an expression of general agreement should not become a way to avoid a duty cast on such Court to apply its mind consciously when giving Judgment. In the present case, as already enumerated above, the First Appellate Court has failed to decide the contention raised by the Defendants to the effect that the suit filed by the Plaintiffs is barred by law of limitation. There are no reasons as to why the findings of the Trial Court to that effect are not accepted by the First Appellate Court. Apart from that, no reasons have been given as to why the relief of permanent injunction and mandatory injunction sought by the Plaintiffs was refused by the First Appellate Court. For the consideration of the said two aspects, I find that, in the interest of justice, the matter deserves to be remanded for fresh consideration on the said two aspects of the matter to the First Appellate Court to consider the following points for determination. -9- POINTS FOR DETERMINATION 1. Whether the suit filed by the Plaintiffs is barred by law of limitation ? 2. Whether the Plaintiffs are entitled for the permanent injunction and mandatory injunction as claimed by them ? 13. Dealing with the next contention raised by the learned Counsel of the Defendants about the nullity of the Will, I find that no infirmity has been committed by the Lower Appellate Court to come to the conclusion that the Will dated 04.12.1986 is null and void. The learned Trial Judge has erroneously come to the conclusion that as the suit property is not ancestral property, the Will is valid. The law in force in the State of Goa is that once it is established that the marriage between the couple is governed by the community of assets, all the properties belonging to the couple belong to the spouses jointly. As such, the learned Trial Judge erred in coming to the conclusion that the Will was not null and void on the basis that the suit property was not ancestral property. The lower Appellate Court has considered the said aspect and come to the right conclusion that the Will is null and void and the same could not be executed by the Testator. 14. Article 1108 of the Portuguese Civil Code provides that the marriage as per the custom of the country consists in the communion between the spouses of all their properties, present and future, not excluded by law. -10- There is no dispute that the said property belonged to the parents of Plaintiff no.1 and the Defendant no.1 and as such they should belong in common between said deceased Shankar and Indumati. 15. Article 1117 of the Portuguese Civil Code provides that the ownership and possession of the common properties vest in both the spouses during the subsistence of the marriage, however, the administration of the properties of the couple without exclusion of the exclusive properties of the wife belongs to the husband. 16. Article 1121 of the Portuguese Civil Code provides that the communion ends by the dissolution of the marriage or by separation, in accordance with the law. 17. Article 1123 of the Portuguese Civil Code provides that the properties of the communion shall be equally partitioned between the spouses or his/her heirs and each one shall account for his/her liabilities to the common pool. 18. In view of the foregoing provisions of the Portuguese Civil Code, it is evident that the suit property and the house existing therein belonged jointly to the parents of the Plaintiff no.1 and Defendant no.1. There is no dispute that the mother of the Plaintiff no.1 namely late Indumati Barde expired on 16.11.1985. The Will executed by the father late Shankar Barde -11- was executed on 04.12.1986. In view of the death of said Indumati, her share devolved upon her descendants which included the Plaintiff no.1 as well as the Defendant no.1. The father said late Shankar Barde, was not the exclusive owner of the suit property and the house existing therein as, admittedly, there were no partition proceedings finalised upon the death of the said deceased mother at the time of execution of the said Will. 19. This Court in a Judgment reported in 2006(3) AIR Bom. R. 227 in the case of Mrs. Mariana Carmelina Fernandes vs. Antonio Gomes & Ors., has, inter alia, held at Para 11 as follows : “It is not in dispute that a moiety holder cannot execute Gift deed in respect of the specific properties which are subject matter of inventory proceedings in the absence of consent of all the legal heirs of the deceased on whose death the Inventory Proceedings are instituted. The law on this aspect, in fact, is sufficiently discussed in Jose Miranda v. Joao Mirand's case and need not be reconsidered or elaborately discussed herein. Considering the same therefore no fault can be found with the order of the trial Court declaring the deed null and void.” 20. Considering the said Judgment of this Court, no fault can be founded in the finding of the learned Appellate Court to the effect that said Will dated 04.12.1986 is null and void. -12- 21. In view of the above, I pass the following : ORDER (i) The Appeal is partly allowed. (ii) The matter is remanded back to the First Appellate Court to decide the said two points for determination framed at para 12 after hearing both the parties in accordance with law. All contentions raised by the parties on this aspect are left open. (iii) There shall be no orders as to costs. (iv)The Appeal stands disposed off accordingly, with no orders as to costs. F. M. REIS, J. arp/*