1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.133 of 2006 Alexandrina Pereira, Aged about 60 years, House No.46, Mazilvaddo, Sirlim, Salcete, Goa. …. Appellant V/s Shri Benvenute P.C.S. Pereira a.k.a. Shri B. Pereira, Patel Building, B-Block, First Floor, Room No.11, Chamber Lane, Byculla, Mumbai 400027. …. Respondent Shri C. Mascarenhas, Advocate for the Appellant. Shri M.B. Da Costa, Senior Advocate with Shri J.A. Lobo, Advocate for the Respondent. CORAM : F.M. REIS, J. DATE : 15th NOVEMBER, 2011 JUDGMENT : Heard Shri C. Mascarenhas, learned Counsel appearing for the appellant and Shri M.B. Da Costa, learned Senior Counsel appearing for the respondent. 2. The above appeal challenges the judgment and award dated 20/03/2006 passed by the learned Additional District Judge, South Goa at Margao in Land Acquisition Case No.42/2000, whereby the 2 reference under Section 30 of the Land Acquisition Act, 1894, (herein after referred to as 'the said Act') for apportionment of compensation awarded in the acquisition proceedings was directed to be paid to the party no.1/respondent herein along with the interest accrued thereon. 3. Pursuant to the notification under the said Act dated 17/04/1997 land was acquired for the construction of branch canal no.II of District D3 of Selaulim Irrigation Project at Sirlim village in Salcete Taluka admeasuring an area of 350 square metres from the property surveyed under no.9/1 of Sirlim village. Whilst passing an award under Section 11 of the said Act, compensation to the extent of Rs.27,195/- was determined for the land acquired. In view of the rival claims by the parties herein, a reference was preferred under Section 30 of the said Act by the Land Acquisition Officer to the learned District Judge. By the impugned judgment and award dated 29/03/2006, the learned District Judge after framing the issues and recording of evidence came to the conclusion that the amount awarded along with interest is to be paid to the respondent herein. Being aggrieved by the said judgment, the party no.2/appellant herein has preferred the present 3 appeal. 4. Shri C. Mascarenhas, learned Counsel appearing for the appellant has assailed the impugned judgment essentially on the ground that the learned Judge has directed payment of compensation to the respondent on the basis of Deed of Gift executed on 30/05/1962 at Exhibit C-20 executed by Honorata Pires Pereira, in favour of the mother of party no.1 namely Indarif Pereira alias Maria Indarifa Umbelina Rosa Piedade Pereira. Learned Counsel has further pointed out that by the said Deed of Gift the entire property surveyed under no.9/1 of Sirlim village was gifted by the said Honarata Pires Pereira in favour of her daughter by reserving life time usufruct on the basis that she is the exclusive owner of the property while according to the learned Counsel said Honarata was not the owner of the said property. Learned Counsel further pointed out that the said property belonged to said Honarata as well as her husband Francisco who had expired at the time of execution of the Deed of Gift and according to the learned Counsel the right of Francisco devolved upon his children which include the said Maria Umbelina Rosa Piedade Valeriana Pereira as well as the appellant who is the 4 daughter in law of one of his sons Filipe Nery. Learned Counsel further pointed out that as the inheritance of the said Francisco has not been partitioned the said Honarata was not entitled to execute the Deed of Gift in favour of the mother of the respondent. Learned Counsel has further taken me through the Deed of Gift and pointed out from the averments therein that it clearly transpires that said Honarata is held to be the exclusive owner of the property when according to him she was not the exclusive owner of the property but the same belonged to her along with her children. Learned Counsel further pointed out that even on perusal of the recital in the Deed of Gift, the document appears to be a sham document as according to him the Deed of Gift contemplates that the sum of money has been released by the donee in favour of said Honarata pursuant to the said document. Learned Counsel further pointed out that as the Deed of Gift was null and void the question of directing the payment of compensation on the basis of the said Deed of Gift does not arise at all. Learned Counsel further pointed out that the appellant was in possession of the acquired portion of the land and, as such, according to him the appellant was entitled for compensation awarded in the acquisition proceedings. The learned Counsel has further taken me through the impugned 5 judgment and pointed out that the learned Judge has totally misconstrued the evidence on record and has come to an erroneous conclusion that the amount of compensation is to be paid to the respondent herein. Learned Counsel, as such, submitted that the impugned judgment deserves to be quashed and set aside. 5. On the other hand, Shri M.B. Da Costa, learned Senior Counsel appearing for the respondent has pointed out that the property which stands gifted was exclusively belonging to said Honarata and, as such, the question of respondent claiming that they also had share in the acquired portion of the land does not arise at all. The learned Senior Counsel initially took me through the anti-nuptial agreement executed by the mother and pointed out that as per the recital therein the same clearly demonstrates that said Francisco had expired much before the marriage of the appellant and there is a recital therein to disclose that upon the death inventory proceedings were initiated and she had taken the property. Learned Counsel further pointed out that in view of the said allotment in the said inventory proceedings upon the death of said Francisco the property which is registered in the Land Registration Document under no.32,142 at page 182 reverse of 6 book B-82 of new series came to be registered in the name of said Honarata. Learned Senior Counsel further pointed out that in view of the fact that the property was registered in the name of said Honarata as per the document at Exhibit C-21 by an inscription of transmission dated 7/06/1963 the said property came to be inscribed in the name of the mother of the respondents namely Maria Umbelina Roasa Piedade Valerina Pereira. The learned Senior Counsel further submitted that the said inscription has been carried out on the basis of the said Deed of Gift executed by the said Honarata reserving for her self the life time usufruct as is disclosed in the said document of inscription no.48,524. Learned Counsel further pointed out that it is well settled that once the property is registered in the name of particular person it is assumed that such person has title and possession over the said property. Learned Counsel further pointed out that in the averments made in the Deed of Gift it clearly provides that the property was belonging exclusively to said Honarata and, as such, there was no bar for her to execute the Deed of Gift in favour of her daughter on account of her disposable quota. Learned Counsel further submitted that in view of the execution of the said document which convey the title in favour of the mother of the respondent the learned Judge was 7 justified to direct the payment of compensation to the respondent herein. Learned Counsel further pointed out that the contention of the learned Counsel appearing for the appellant that the said document is a sham document cannot be accepted as according to him at the time of the execution of the said Deed of Gift parties had also released the charge which was created in favour of the donee at the time of execution of the anti-nuptial document in the year 1927. Merely releasing by a common document such charge cannot by itself assume that the document is a sham document. Learned Counsel further submitted that considering that the survey records do not stand in the name of the appellant herein itself discloses that they are not in possession of the land acquired. Learned Counsel took me through the impugned judgment and pointed out that the learned Judge has rightly appreciated the evidence on record and has come to the conclusion that the respondent is entitled to receive the compensation awarded by the Land Acquisition Officer. 6. Having heard the learned Counsel and on perusal of the record there is no dispute that the property originally belonging to the said Honarata and her husband Francisco. In the anti-nuptial 8 agreement executed by the mother of the respondent way back in the year 1927 clearly stipulates that there were inventory proceedings initiated upon the death of said Francisco and the said mother Umbelina had taken in the communion of her husband properties which have been allotted to her in such inventory proceedings. This fact ex-facio establishes that the contention of the appellant that the estate has not been partitioned upon the death of Francisco cannot be accepted. 7. Dealing with the contention of Shri Mascarenhas, learned Counsel appearing for the appellant that the mother of Umbelina was not the exclusive owner of the said property, the document at Exhibit C-26 which is the Land Registration Document in fact nullifies such contention. The document discloses that the property is registered in the name of the said Umbelina pursuant to the Deed of Gift which has been executed in her favour by the said Honarata. The very fact that such transmission has been effected in the Land Registration Document itself shows that the property was earlier registered in the name of said Honarata. In case the property was not registered in her name the question of making such transmission in the name of Umbelina would not arise. Apart from 9 that, the document clearly discloses the land registration number of the property which has been gifted. All these facts further establish that the property exclusively belongs to said Honarata and, as such, she was free to gift the said property in favour of her children on account of her disposable quota, but however, the fact as to whether the Gift is to be considered to be inofficious is a matter which can be adjudicated only in the inventory proceedings initiated upon the death of the said Honarata. Merely because this aspect has not been effected does not by itself disentitle the respondent to receive the compensation awarded in the inventory proceedings. No doubt, the value of the property as on the date of the opening of inheritance would have to be determined so as to ascertain as to whether any portion of the Deed of Gift is to be considered inofficious. This exercise cannot be done in the reference proceedings under Section 30 of the said Act. Appellants would have to initiate another appropriate proceedings to establish as to whether any part of the Deed of Gift is inofficious considering that the Deed of Gift has been duly registered before the competent Authority and taking note of the fact that said Honarata had a life time usufruct. The respondent is entitle to receive the compensation offered by the Land Acquisition Officer for the 10 aforesaid reasons. On perusal of the impugned judgment passed by the Reference Court, I find there is no infirmity committed by the Reference Court in holding that the compensation is to be paid to the respondent. 8. As such, I find no case is made out by the appellant which calls for any interference in the impugned judgment. In view of the above, I find no merit in the above appeal and the appeal stands dismissed with no order as to costs. F.M. REIS, J. NH/-