1 IN THE HIGH COURT OF BOMBAY AT GOA MISC. CIVIL APPLICATION NO. 583 OF 2007 IN APPEAL FROM ORDER NO. 73 OF 2004 1. Mrs. Smita Sandip Keni, Wife of Mr. Sandip Prabhakar Keni, major, resident of “Nilaya” near N.D. Naik Work Shop, Fatorda, Margao, Goa 403 602. 2. Mrs. Neeta Pandurang @ Rajan Gaitonde, Wife of Mr. Pandurang @ Rajan Gaitonde, major, resident of House No. 71, Savitri Vishwa, Fontainhas, Panaji, Goa 403 001. ... Applicants V/s 1. Mr. Vallabh Vinayak Juvarkar Zeet Building, 3rd Floor, Airport Road, Chicalim, Vasco-da-Gama, Goa. 2. Mr. Shripad Vinayak Juvarkar, House No. 12/14, Segundo Bairo, St. Cruz, (Khalapur), Goa. 3. Smt. Urmila D. Juvarkar Wife of deceased Digambar Vinayak Juvarkar 4. Miss Disha Digambar Juvarkar Minor, daughter of deceased Digambar Vinayak Juvarkar 5. Master Vinayak Digamber Juvarkar Minor, son of deceased Digambar Vinayak Juvarkar All residing at House No. 379 E Firgulem Shanti Nagar, Navelim, Salcete, Goa. .... Respondents 2 Mr. S.D. Lotlikar, Senior Advocate with Ms. Sapna Mordekar, Advocate for the Applicants. Mr. M.S. Usgaonkar, Senior Advocate with Mr. V. Menezes, Advocate for for the Respondents No. 1& 2. Ms. T. Colaco, Advocate for Respondent No.3. CORAM : N.A. BRITTO, J. DATE : 10th APRIL, 2008 ORDER : The applicants seek recall of the consent order dated 24/05/2006 passed in Appeal from Order No. 73/2004 along with prayer that the disposal of the appeal in terms thereof, be rejected. 2. Some facts are required to be stated to dispose of this application. 3. Baguiroti Sinai Zuvarkar, widow of Yeshwant Sinai Zuvarkar adopted Vinayak Sinai Zuvarkar, and, the latter died leaving behind three sons and six daughters. The present dispute is as regards the property, inter alia, known as “PADRI QUINTA” surveyed under nos. 32,33 and 34 (suit property, for short). The said Baguiroti during her life time gifted the suit property in favour of her grandsons Vallabh(R1) and Shripad(R2) by gift deed dated 24/10/1950 and she expired subsequently on 10/01/1951. Digambar, (husband of R3) the third son was born on 18/07/1960 and presumably after the said two brothers and four sisters. Applicant no.1 is a daughter of one of the sisters namely Smt. Mohini Borkar, while the applicant no. 2 is one of the 3 sisters. 4. The said Digambar V. Zuvarkar initiated Inventory Proceedings bearing no. 33/93/A to partition the estate of his father Vinayak Sinai Zuvarkar and his mother Baguiroti Sinai Zuvarkar and her late husband Yeshwant Sinai Zuvarkar and in the said Inventory Proceedings, Vallabh Vinayak Zuvarkar being the eldest son was appointed as Administrator/Cabeca de Casal. As Administrator, he filed list of assets belonging to the estate of the said inventoried/inventariados. Digambar V. Zuvarkar on or about 15/02/1994 raised objections to the said list stating that the suit property also formed part of the estate of the said inventoried and was liable to be listed, whereupon the suit property came to be listed. Thereafter, the said Digambar V. Zuvarkar on or about 29/06/2005 filed application for interim distribution of the income from the suit property to the extent of one third share. Next, Vallabh V. Zuvarkar and Shripad V. Zuvarkar on or about 12/01/1995 filed an application for exclusion of the suit property, contending that the said Digambar Zuvarkar had no right or claim over the suit property which was in exclusive ownership and possession of the said Vallabh and Shripad Zuvarkar. In the said application, the said Vallabh and Shripad Zuvarkar stated that one Dattaram Puno Naik had claimed tenancy over the suit property but had agreed to surrender the same and had made an application to the Mamlatdar, Tiswadi Taluka, to surrender his right, but he 4 had insisted that all three sons sign the gift deed in his favour and as the said Dattaram Puno Naik had made the said Digambar as a party to the application for surrender of tenancy, all three brothers signed the gift deed made in favour of Dattaram Puno Naik, but when the promulgation of land records came about, only the name of Vallabh and Shripad came to be included in the occupants column of form 1 and 14 to the exclusion of the said Digambar V. Zuvarkar and Dattaram Puno Naik. 5. However, the said application of Vallabh and Shripad Zuvarkar dated 12/01/1995 for exclusion of the suit property remained pending. An inquiry was held into the application dated 29/06/1995 filed by the said Digambar Zuvarkar for the distribution of the income of the suit property and upon inquiry, the learned CJSD by order dated 15/09/2004 directed that a sum of Rs. 30,000/-, per year from the year 1995, be paid to the said Digambar Zuvarkar, until the final distribution of income/assets. In arriving at the said finding, the learned CJSD came to the conclusion that the suit property could not be said to be exclusively belonging to Vallabh and his brother Shripad and that it was considered as joint property for three male descendants of Vinayak. The learned CJSD also gave a clear finding that the daughters did not have right over this property, as they were taking care of other properties. The learned CJSD held thus: “Therefore, considering the date of gift deed and other circumstances, the property in question cannot be said as 5 exclusively belonging to Vallabh and his other brother Shripad”. “Therefore, the case of the applicant Shri Digambar that the daughters did not have right over this property as they were taking care of other property, looks probable” 6. The impugned order dated 15/09/2004 was challenged by Vallabh and Shripad in Appeal from Order No. 73/2004 and, admittedly, the sisters were not joined as parties to the appeal and the appeal was adjourned from time to time. In the meantime, Digambar V. Zuvarkar expired and on 24/05/2006 and consent terms came to be filed by the said Vallabh V. Zuvarkar, Shripad V. Zuvarkar (appellants in the said appeal) and Smt. Urmila D. Zuvarkar on behalf of self and her two minor children who were represented by her as their guardian. As per the said consent terms, the respondents nos. 3 to 5 herein (being the LR’s of Shri Digambar Zuvarkar) agreed to withdraw the application dated 29/06/1995 for distribution of income and the objections raised on 15/02/1994 before the Inventory Court. The respondents nos. 3 to 5 also acknowledged that respondents no. 1 and 2 i.e. Vallabh and Shripad were the sole owners of the suit property and gave their no objection for deletion of the suit property from the list of assets before the Inventory Court. Respondents nos. 3 to 5 also admitted and declared that the gift deed dated 24/10/1950 was valid and was correctly valued at Rs. 3,000/- as on the death of Smt. Baguiroti Sinai Zuvarkar on 10/01/1951 and in consideration of the withdrawal of the application and the admissions made, the respondents nos. 1 and 2 (Vallabh and Shripad) agreed to pay to respondents nos. 3 to 5 6 (widow and children of Digambar), a sum of Rs. 3.5 crores in the manner provided in the said consent terms. It was further agreed that exclusion of the suit property, Inventory Proceedings may be disposed of by allotting equal undivided shares in the three immovable properties listed in the list of properties of the deceased, it to be understood that late Digambar Zuvarkar's share shall be subdivided, half to his widow, respondent no.1 and one quarter share, each to the minor children Disha and Vinayak. As far as the movables were concerned, they were agreed to be allotted to Vallabh and final chart of partition was to be drawn in terms of clause 8 of the said consent terms. It appears that thereafter the trial Court disposed of the Inventory Proceedings by order dated 5/09/2006. 7. On 25/05/2007 an application came to be filed for modification of consent terms dated 24/05/2006 which was registered as MCA No. 373/2007 in A.O. No. 73/2004 and pursuant to the said application, an order dated 1/06/2007 was made reducing the amount to be paid to respondent no. 3 for self and as guardian of respondents nos. 4 and 5 (Urmila and her two children, Disha and Vinayak) from 3.5 crores to 3 crores. 8. The case of the applicants is that they were totally unaware of the proceedings in AO No. 73/2004 and the consent terms filed therein and the order passed by this Court in terms of the consent order. It is their case that 7 they were deliberately and mischievously kept in the dark about the development by the respondents (i.e. Vallabh, Shripad and Smt. Urmila) when in fact the applicants were sharing excellent relationship with respondent no. 1 Vallabh as well as late Digambar Zuvarkar, both of whom had assured the applicants and other interested parties that their rights in the estate left behind by their father will be duly protected and the estate including the suit property would be divided equally amongst all the heirs. However, taking advantage of the untimely death of Digambar Zuvarkar, the respondents Vallabh and Shripad betrayed the trust that the applicants had reposed in them, by raising the plea that the suit property did not form a part of the estate of Vinayak Sinai Zuvarkar and the respondent Smt. Urmila whether on account of pressure exercised on her by respondents, Vallabh and Shripad, or fear of them or otherwise for whatsoever reason colluded with the respondents, Vallabh and Shripad, by becoming a party to the fraud sought to be played by respondents nos. 1 & 2 and agreeing to the exclusion of the suit property from the list of assets by conceding that it exclusively belonged to the respondents, Vallabh and Shripad, and the applicants became aware of the fraud played on them and other interested parties, when they were informed by one of their acquaintances sometimes in the first week of June, 2007 that the proceedings in which the respondents were parties had been listed for hearing on the Board, before the vacation Judge, which made the applicants to make further inquiry, from which the aforesaid facts came to light. 8 9. The case of the applicants is that the respondents Vallabh, Shripad and Smt. Urmila have colluded with each other to play a fraud on the Court for the purpose of obtaining consent order with a direction that the Inventory Proceedings shall be disposed of in terms of the consent terms. It is their case that the said respondents in the first place did not join all the interested parties including the applicants herein who were necessary parties to the said appeal and, more particularly, to the consent terms which inter alia provided for exclusion of one asset, albeit of the highest value from the list of assets to be divided amongst the heirs of late Vinayak Sinai Zuvarkar and his adopted mother Smt. Baguiroti Sinai Zivarkar and also sought a direction that the Inventory Proceedings should be disposed of in terms of the consent order. The applicants have stated that the fact that persons other than the respondents were interested in the outcome of the Inventory Proceedings and would be affected by the consent order was deliberately suppressed by the respondents from this Court. It is their case that, had the Court been made aware of the fact that the interest of persons other than those who were parties to the appeal were likely to be adversely affected by the consent terms, this Court would not have accepted the consent terms and disposed of the appeal in terms thereof and this Court would not have given a direction that the Inventory Proceedings be disposed of in terms of consent order. It is also stated that since respondents nos. 2 and 3 were minors, Smt. Urmila could not have agreed to the exclusion of the suit property from the list of 9 assets, unless she was authorized to do so on behalf of her two minor children by competent Court of law upon being satisfied that this transaction was in the interest of minors and the fact that the rights of minors were involved in the matter, appears to have been suppressed from this Court. The applicants have stated that respondents no. 1, 2 and 3 therefore colluded with each other in playing a fraud on this Court by seeking consent order and its subsequent modification prejudicial to the interest of other interested parties including the applicants herein. The applicants have stated that the said compromise is not a lawful agreement or compromise and that the same is void and is therefore deemed to be unlawful as the inventory proceedings have been disposed of on the strength of the consent order passed by this Court on 24/05/2006 in AO No. 73/2004 without any reference to the applicants and the other interested parties. The applicants therefore have sought that the said consent order dated 24/05/2006 be recalled and set aside and the said consent terms be rejected. 10. On the other hand, it is the case of the respondents, Vallabh and Shripad that the judicial partition has become final by order dated 5/09/2006 and thus there is no scope for recalling or setting aside the order dated 24/05/2006. The said respondents have further stated that the said order dated 5/09/2006 has not been challenged by any parties since it is barred by the provisions of Article 1427 read with Article 771 of the Portuguese Civil 10 Procedure Code. 11. The said respondents have further stated that the suit property has been sold by sale deeds dated 31/05/2006, 28/07/2006 and 18/10/2006 in favour of RPA Promoters and Builders Pvt. Ltd. and by sale deed dated 8/01/2007 to Trinity Land Base Pvt. Ltd. and, as such, the present application is not maintainable, as the subject matter has been transferred and the right thereto no more vests in the said respondents. 12. The said respondents have also stated that the applicants have suppressed material facts. It is stated that by notice dated 4/07/2007, sent by the Advocate of the applicants to the said respondents, the applicants have disclosed that they had full knowledge of the fact that the suit property was sold to the aforesaid persons which fact has been suppressed from this Court and in the said notice the applicants had also raised challenge for the first time to the legality of the gift deed dated 24/09/1950 executed by late Baguiroti Zuvarkar in favour of respondents Vallabh and Shripad. The said respondents have stated that it was incumbent upon the applicants to disclose the above facts before this Court since any order passed thereon would severely prejudice all parties and the application therefore requires to be dismissed on this count. 11 13. The said respondents have stated that the applicants were notified by the inventory Court at the inception and were fully aware of the additional list of assets before the said Court and they were also aware that the said gift deed was made by Baguiroti within her disposable quota and, therefore, was required to be allotted to the respondents Vallabh and Shripad. The said respondents state that despite knowing this fact, the applicants neither challenged the said gift deed nor did they object to the application of the said respondents for allotment of the said gifted property to them, being out of the disposable quota of the donor and it was only the husband of the respondent no.3, the late Digambar Zuvarkar who objected to the same and in addition to which he also filed an application to the distribution of income. It is also stated that the parties to the appeal at the behest of this Court were asked to settle the matter, after which serious efforts were made, which fructified into consent terms dated 24/05/2006, which were recorded during vacation and that due to several changes in the circumstances in relation to the suit property that the parties agreed to the consent terms to reduce the total consideration thereon and modify the same. The said respondents have stated that there were changes in the Regional Plan of Goa which materially affected the value of the property which culminated in the parties to the consent terms agreeing to a reduction of the consideration in the manner stated in MCA No. 373/2007. It is stated that the applicants had put their appearance through the Advocate before the trial Court and had every 12 opportunity to object to the list of assets. It is stated that the gift deed was not subject to reduction as it was within the disposable quota. The said respondents have stated that the applicants have been during the course of inventory and the appeal, in touch with the said respondents and respondent no.3 and were constantly made aware of different applications, orders and allotments that have taken place and it is for the first time in June, 2007 that the applicants began making exorbitant demands on the said respondents for payment of money and began threatening the said respondents that they would approach the Court to challenge the partition. 14. On the other hand, the respondents nos. 3 to 5 have stated that respondent no.3 was appointed as guardian for respondents nos. 4 and 5 by order dated 7/10/2005 of the Registrar and thereafter by order dated 27/02/2006 before the Inventory Court. They have further stated that respondent no.3 had no interest adverse to or conflicting with those of a minor children as falsely averred. 15. I have heard the learned Counsel appearing on behalf of the parties, at length. 16. Learned Senior Counsel, on behalf of the applicants, has submitted that the applicants' main objections is as regards clause 3 of the consent terms 13 dated 24/05/2006. Learned Senior Counsel contends that obtaining the said order on the said consent terms without appraising the Court that there were other parties who were interested in the subject matter of the dispute, amounts to fraud committed by them. Alternatively, learned Senior Counsel submits, in case there is no fraud and other parties were not impleaded in the said appeal namely the sisters, the consent order disposing of the appeal without they being made parties would be unlawful. Learned Senior Counsel submits that consent order could not have been passed disposing the said appeal in the absence of the said other parties to the Inventory Proceedings and in support of the said submissions, learned Senior Counsel has relied upon the decisions reported in the case of Kantaben T. Shah & Ors. V/s. Devendrakumar C. Shah & Ors. (AIR 2002 160) and Ramjusingh Bhuliansingh V/s. Tarun K. Shah & Ors. (2002(4) ALL MR 198). 17. At the outset, it must be stated that the present application suffers from the same vice which the applicants allege the consent order in Appeal from Order No. 73/2004 suffered from. The applicants have not impleaded in this application the other sisters and/or their spouses and moreover inspite of the respondents nos. 1 and 2 categorically stating that the suit property has been sold to persons mentioned in para 3 of the reply, the applicants have chosen not to implead the said buyers. Any order in this application is bound to affect the rights of the said buyers and therefore they would have been 14 necessary parties to this application. On this count alone, the application needs to be rejected. 18. The contention that respondent no.3 Smt. Urmila could not have agreed for exclusion of the suit property from the list of assets against the payment of Rs. 3.5 crores and thereafter reduce the amount from Rs. 3.5 crores to Rs. 3 crores, as she was not authorized to do so by a competent Court of law as respondents nos. 4 and 5 were minors, again needs to be rejected. Respondent no.3 Smt. Urmila has clearly stated that the consent terms were entered into by her with the best interests of her children as well as their natural guardian and the consideration fixed was the best possible one. Admittedly, respondent no.3 was appointed guardian ad litem for respondents nos. 4 and 5 and the children namely respondents nos. 4 and 5 had no interest which was adverse to respondent no.3. In any event, it must be stated that it is not for the present applicants to make this grievance and at the most it can be an issue to be raised by the respondents nos. 4 and 5 in case their interests were compromised by their mother, respondent no.3. This submission also needs to be rejected. 19. Admittedly, the grandmother Smt. Baguiroti had made the gift deed in favour of her two grandsons Vallabh V. Zuvarkar and Shripad V. Zuvarakar by deed dated 24/10/1950 from her disposable quota, by keeping to herself 15 the right to usufruct which right was valued at Rs. 1,000/- and the useful domain at Rs. 2,500/- and thus the value of the gift at Rs. 3,500/-. Digambar Zuvarkar had admitted in his deposition recorded on 5/06/1998 that Rs. 3,500/- was the correct value of the suit property on 24/10/1950 and that would also have been the value of the suit property at the time of the death of the said grandmother (i.e. 10/01/1951). Learned Senior Counsel on behalf of the respondents nos. 1 and 2 has drawn my attention to Article 1790 of the Civil Code, 1867 which, inter alia, provides that the value of the property gifted shall be that which they had on the date of the opening of the inheritance and the same date shall be considered for the computation of the extent of disposable portion. That being the position, the fact that over the years the suit property appreciated in value more than other properties would be of no consequence. 20. Admittedly, neither Digambar V. Zuvarkar nor any of the sisters including applicant no. 2 or the mother of applicant no.1, challenged the said gift deed which was made by the said grandmother Baguiroti in favour of her two grandsons at the time when four sisters were living and the said Digambar Zuvarkar was yet to be born. No doubt that the said Digambar Zuvarkar managed to get a right acknowledged by Vallabh and Shripad by virtue of the said tenant filing a case against all three brothers for surrender of tenancy and subsequent gift deed made by all three of them in favour of the 16 said tenant in which it was admitted that all the three brothers co-owned the suit property. Learned Senior Counsel on behalf of the respondents nos. 1 and 2 has placed reliance on the case of Ambika Prasad Thakur & Ors. etc. V/s. Ram Ekbal Rai (dead) by his LR's & Ors. etc. (AIR 1966 SC 605) to contend that a right to a property could not be conferred by way of admission. However, I must hasten to add that it is not necessary to enter into the said controversy at present, for the purpose of deciding this application. 21. Admittedly, all the sisters including mother of applicant no. 1 and applicant no. 2 were duly served with summons of the inventory proceedings and it appears that they were proceeded ex-parte. The said sisters at no point of time raised any dispute as regards the enlisting of the properties by the Administrator and it is only the said Digambar Zuvarkar who had objected to the same. Subsequently, when the said Digambar Zuvarkar sought income of the suit property, the said sisters also did not object to the same or contend that they too would be entitled to the income of the suit property, they having a right to the same. It is in this context that the assertion of the respondents nos. 1 and 2 in para 22 becomes relevant, which assertion has not been denied on behalf of the applicants. The respondents nos. 1 and 2, in the said para, have stated that the applicants throughout the course of inventory