1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO.51 OF 2004. 1. Shri Satish Govind Sinai Bhatkuly, Son of Govind Sinai Bhatkuly, Aged about 60 years, retired, residing at Verem, Reis Magos, Bardez, Goa. 2. Smt. Bhagyarekha Satish Sinai Bhatkuly, wife of Satish Govind Sinai Bhatkuly, aged about 55, Government employee, r/o Verem, Reis Magos, Bardez, Goa. 3. Smt. Mogabai Govind Sinai Bhatkuly, d/o Govind Sinai Bhatkuly, of full age, aged about 77 , retired, residing at Verem, Reis Magos, Bardez, Goa. 4. Smt. Kishori Govind Sinai Bhatkuly, d/o Govind Sinai Bhatkuly, of full age, aged about 69, retired, residing at Verem, Reis Magos, Bardez,Goa. 5. Shri Ajit Govind Sinai Bhatkuly Son of Govind Sinai Bhatkuly, Aged 56 years, Government employee, residing at Verem, Reis Magos, Bardez, Goa. 6. Smt. Laxmi Ajit Sinai Bhatkuly, wife of Ajit Govind Sinai Bhatkuly, aged about 45, bank employee, residing at Verem, Reis Magos, 2 Bardez Goa. 7. Smt. Kunda Ramlal Danait, d/o Govind Sinai Bhatkuly, aged about 65 years, residing at Verem, Reis Magos, Bardez Goa. 8. Shri. Ramlal Danait husband of Kunda Danait, aged about 71 years, residing at Verem, Reis Magos, Bardez Goa. 9. Smt. Sheela Deepak Pagedar, d/o Govind Sinai Bhatkuly, aged 63 years, residing at Baroda, Gujarat. ... Appellants Versus 1. Shri. Vinayak Govind Sinai Bhatkuly, son of Govind Sinai Bhatkuly, of full age, retired, residing at Verem, Reis Magos, Bardez Goa. 2. Smt. Lata Vinayak Bhatkuly, wife of Vinayak G.S. Bhatkuly major, housewife, residing at Verem, Reis Magos, Bardez, Goa. .. Respondents Mr. J. F. Melo, Advocate for the appellant. Mr. V. A. Lawande, Advocate for the respondent. CORAM : R. C. CHAVAN,J. Date of reserving the judgment : 19 th August,2008. 3 Date of pronouncing the judgment : 26 th August, 2008. ORAL JUDGEMENT : 1. This appeal takes exception to order passed by the learned Civil Judge, Senior Division, Mhapusa upholding an objection by respondent Vinayak to inclusion of a sum of Rs.2.35 Lacs towards passive debt of deceased Damodar Bhatkuly, while settling descriptions and appraisal of assets of the deceased. 2. Facts, which are material for deciding this appeal are as under. Heirs of Govind Sinai Bhatkuly partitioned the properties by a deed dated 22.5.91. On the same day, a deed of understanding was entered into by heirs. Construction of shops and flats had been undertaken by appellant No.1 Satish, who had been appointed Cabeca de casal (head of the family), by collecting sale price of two shops amounting to Rs.3,92,750/- and raising loans amounting to Rs.1,77,302.72/-. There was also an outstanding bill of Rs.85,182.84 to be paid to contractor. Liability of co- owners towards phase I of construction was quantified at Rs.2,62,485.56 (i.e. Loan of Rs.1,77,302.72 + dues Rs.85,182.84). 60 % of work had been completed and by this deed, the co-owners undertook to complete the 4 remaining 40 % work from their own resources. Other recitals are not relevant for the present. 3. After this, Damodar died in 1992 and bequeathed the properties by a will to Kunda (appellant No.7). She claimed to have completed 40 % of the remaining work by paying Rs.1,06,000/- to Satish appellant No.1, and spending Rs.42,000/- towards purchase of material and Rs.22,000/- towards labour charges. This was in addition to payment of Rs.65,000/- towards Damodar's share in liabilities (presumably as per deed dated 22.5.91, which actually work out to Rs.65,621.39/-) Thus, in all a sum of Rs.2.35 Lacs was claimed to have been spent by legatee Kunda. 4. In the inventory proceedings initially, in 1995, respondent No.1 Vinayak was appointed the head of the family. On 14.1.1997, Satish, appellant No.1, was appointed head in place of Vinayak. On 1.3.2000 fresh list of assets was filed, which included passive debt of Rs.2.35 Lacs on the share of Damodar. On 13.3.2000, respondent No.1 Vinayak objected contending that liability of Damodar was only Rs.1,41,000/- . He alleged that appellant No.1 Satish had not fulfilled duties of his office of Head of the family and therefore,he be removed and respondent No.1 Vinayak, who is the elder brother, be appointed as the head. 5 5. By reply dated 24.8.2000, appellant No.1 contended that the list of assets was filed on 1.2.2000. Objections could have been raised within ten days only. Since no objection was so raised within 10 days, the objection could not be entertained. He reiterated as to how liability towards share of Damodar worked out to Rs.2.35 Lacs. By the impugned order, the learned Civil Judge upheld the objection of respondent No.1. Hence, the appeal. 6. I have heard Advocate J. F. Melo for appellants and Advocate V. A. Lawande for the respondents. The only question that arises for consideration, is whether the learned Civil Judge was right in excluding item no.3 pertaining to passive debt of Rs.2.35 Lacs from assets and liabilities left behind by deceased Damodar, on the basis of application dated 13.3.2000. 7. The learned Counsel for the appellants submitted that application dated 13.3.2000 was in fact for removal of appellant No.1 as head of the family and appointing respondent No.1 as the head, and objection to items 1 to 3 in the list was only incidental. This may not be so. Application does show that respondent No.1had objected to the items, apart 6 from praying for removal of appellant No.1. Applications of this type need not be subjected to strict rules of pleadings. It would be enough to show that an objection was raised. In view of this ratio of judgment Denis Versus Irton reported at 2008(2) BCR 755, may not be applicable. 8. The learned counsel next submitted that the objection dated 13.3.2000 could not have been entertained, since it was raised beyond the time prescribed. List of assets was admittedly filed on 1.2.2000. Reliance was placed on judgment in Laxmi Versus Sushila reported at 2006(6) Bom CR 259. In that case, list of assets was filed on 1.7.2003. Objection was raised on 6.3.2004. The trial Judge rejected the objection holding that it was filed beyond the prescribed time and so bar of Article 1379 was attracted. This Court, while dismissing the appeal, held that trial Judge was justified in not entertaining the objections. The Court held that Article 1383 was not attracted, and that Article 1379 applied. This Article may be usefully reproduced as under :- ARTICLE 1379 (Examination and inspection of the file) “Once the list of the properties have been submitted or the time limit within which they should have been submitted has expired, the file shall be made available, for examination, 7 for forty-eight hours, to each of the heirs who have appointed advocate, as per order of their appointment, thereafter to the advocate of the donee and of the administrator, and finally inspection shall be given, for the same period to the Public Prosecutor, when the inventory is of orphan;s jurisdiction. During the period of examination or inspection the advocates and the Public Prosecutor may complain about lack of description of the properties, or give their say in case the administrator or the donee deny the existence of the properties in their possession or the duty to bring them under collation, or raise question as to which properties he received and has obligation to collate. The same thing may be done, by application, till the time of the end of examination, by the heirs and moiety holder who have not appointed advocates. Sole paragraph : The lack of description of the properties may be raised subsequently at any time; but one who raises it shall satisfy that he got the knowledge of the existence of the properties only on the date he presented the application. There upon the procedure prescribed in the next Article shall be followed.” 9. The learned Counsel for appellant submitted that in view of the sole paragraph in Article 1380, failure to file a reply within time, would result in an inference of admission being drawn and therefore, the learned trial Judge should not have entertained the objection. This aspect has not at 8 all been dealt with by the learned trial Judge inspite of specific objection being raised. Article 1380, on which the appellant relies reads as under :- ARTICLE 1380 (Steps to be taken when lack of description of properties is complained of) “ Where there is complaint about the lack of description of the properties, notice shall be given to the administrator or to the donee to describe the properties or give their say. If one who has been served with the notice, admits the existence of the properties and acknowledges that they belong to the inheritance,but is unable to describe them at once, he may apply that time be granted for the purpose of description. In the even the denies the existence of the properties or declares that they do not belong to the inheritance, the judge shall invite the parties to lead the evidence they desire, hold the enquiry he deems necessary and and finally decide whether the properties should be described. Where the dispute cannot be summarily decided in terms above, because there is necessity of a larger investigation, the parties shall be directed to pursue ordinary remedy, and the inventory shall proceed in respect of other properties. Sole paragraph : The failure to file the reply within time, the notice having been served in person, amounts, for all purposes, to an admission of the existence of the properties and of the duty to describe them. ” 9 10. His learned adversary opposed these contentions and further submitted that to qualify as passive debts, liability must be shown to have been incurred during the life time of the deceased. Therefore, liabilities undertaken by legatee after the death of Damodar would not qualify as passive debts. 11. I have carefully considered these submissions, ideally, the learned Trial Judge should have dealt with the question of tenability of objection after prescribed time. But since the question is purely one of law, there being no dispute on facts, I propose to deal with it to cut short the already prolonged inventory proceedings. 12. Article 1379 quoted above prescribes a scheme of making the file available for inspection to each of the parties for 48 hours each, one after the other, to enable them to raise objections, till the time of the end of examinations. In order to bind a party to a time frame, it would be necessary to show that the scheme of Article 1379 was followed in letter and spirit and plead categorically the date by which examinations were over. The record of the trial Court is available. Roznama of proceedings shows that on 1.2.2000, a fresh list of properties was filed on behalf of 10 appellant No.1. The matter was then adjourned for “say” on 13.3.2000, on which date objection was filed. In view of this, the appellant cannot contend that objection dated 13.3.2000 was time barred. This contention has to be rejected. 13. As to the conclusion by the learned trial Judge that the passive debt of Rs.2.35 Lacs has to be excluded, the learned Counsel for the respondent No.1 pointed out that on appellant's own reckoning the liabilities arose or were taken up by the legatee after Damodar's death, and hence, would not qualify as passive debts. He is right. What the legatee would get under a bequest is the asset in such condition as it may exist, along with liabilities if any. If the construction was incomplete to the extent of 40 % at the time of death of Damodar, the legatee cannot charge other heirs with the cost of completing the remaining work for her benefit. Hence, even on facts, the conclusions drawn cannot be faulted. Appeal is therefore, dismissed with no order as to costs. R & P be sent back to the trial Court. Parties to appear before the trial Court on 30.9.2008 at 10 a.m. without further notice. R. C. CHAVAN, J. SMA 11