-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 87 OF 2005 WITH FIRST APPEAL NO.88 OF 2005 FIRST APPEAL NO.87 OF 2005 Mrs. Maria Celsa Gomes, major, married, r/o La. Marvel Colony, Dona Paula, Goa. …... Appellant V e r s u s 1. Smt. Maria Amalia Pereira (Dec.) Through her heirs: a) Ms. Kusum Kharangate b) Ms. Pushpa Kharangate c) Mr. Suresh Kharangate d) Mr. Vilas Kharangate e) Mr. Pradip Kharangate All having their address at H. No.124, Velsao, Cansaulim, Goa. And represented by their Power of Attorney Shri Vilas Kharangate. 2. Ms. Maria Erta Tereza Gomes Near Baina Church, Baina, Vasco-da-Gama, Goa. …... Respondents Mr. A. R. Kantak, Advocate for the Appellant. Mr. M. B. da Costa, Senior Advocate with Mr. C. A. Coutinho, Advocate for the Respondent No.1(d). Mr. M. S. Usgaonkar, Senior Advocate with Mr. I. Agha, Advocate for Respondent No.2. -2- FIRST APPEAL NO.88 OF 2005 Mrs. Maria Erta Tereza Gomes Near Baina Church, Baina, Vasco-da-Gama, Goa. …... Appellant V e r s u s 1. Smt. Maria Amalia Pereira (Deceased) Through her heirs: (a) Ms. Kusum Kharangate (b) Ms. Pushpa Kharangate (c) Mr. Suresh Kharangate (d) Mr. Vilas Kharangate (e) Mr. Pradip Kharangate All having their address at H. No.124, Velsao, Cansaulim, Goa. And represented by their Power of Attorney, Shri Vilas Kharangate. 2. Mrs. Maria Celsa Gomes, major, married, r/o La. Marvel Colony, Dona Paula, Goa. …... Respondents Mr. M. S. Usgaonkar, Senior Advocate with Mr. I. Agha, Advocate for the Appellant. Mr. M. B. da Costa, Senior Advocate with Mr. C. A. Coutinho, Advocate for the Respondent No.1(d) Mr. A. R. Kantak, Advocate for Respondent No.2. Coram :- A. S. OKA F. M. REIS, JJ. Judgment Reserved on : 5 th July, 2010. Judgment Pronounced on : 18 th August, 2010. -3- JUDGMENT : (Per F. M. Reis, J.) Both the above Appeals are disposed of together as the impugned Judgment and Award challenged in both of them is dated 10th December, 2004, passed in Land Acquisition Case no. 35 of 2001 by the learned IIIrd Addl. District Judge, Margao. 2. The Appellant in First Appeal no. 88/2005 is the party no.1 in the impugned Judgment. The Appellant in First Appeal no. 87/2005 is party no.3 in the impugned Judgment. The Respondent no.1 in First Appeal no. 87/2005 and First Appeal no. 88/2005 is the party no.2 in the impugned Judgment. The parties shall be referred in the manner as they are described in the cause title of the impugned Judgment. 3. Briefly the facts of the case are as follows : By Government Notification dated 2nd August, 1994, published under Section 4 of the Land Acquisition Act, 1894, land admeasuring an area of 57,475 square metres, surveyed under survey no. 15/1, was sought to be acquired for the Coast Guard Organization at Issorsim and Chicolna of Mormugao Taluka,. By an Award under Section 11 of the Land Acquisition Act, dated 13th November, 1997, a sum of Rs.1,91,88,897/- was awarded for the land acquired. In view of the dispute between the party no.1 and the party no.3 in connection with the ownership of the land acquired, a reference was made by the Land Acquisition Officer under Section 30 of the Land Acquisition Act, 1894, (herein after referred to as 'the said Act'), to the learned District Judge. -4- 4. In the said reference, the parties put up their respective claims. It was the contention of the party no.1 in her written statement that she and her sister Mrs. Maria Amalia Pereira, the party no.2, and their children are the absolute, lawful and the only owners of the property under acquisition and that the party no.3 has no right absolutely of whatsoever nature to the said land acquired. As such, she claimed that she is exclusively entitled to the amount of compensation awarded by the Land Acquisition Officer. It is further her contention that the land acquired is an ancestral property of the common ancestors of the party nos.1, 2 and 3 namely Agostinho P. S. Pereira. Upon his death, Inventory Proceedings were initiated in the year 1909 and the estate of the said Agostinho devolved in equal shares upon Maria Cecilia Pereira alias Ana Maria Cecilia Pereira and Maria Josepha Pereira. The said Maria Cecilia Pereira and Maria Josepha Pereira by two Wills both dated 26th May, 1926, bequeathed their property to their nieces namely Maria Jovita Pereira i.e. the mother of the party no.1 and party no.2 and Maria Celsa Gomes i.e. the party no.3 herein. It is further submitted that the said Wills, inter alia, had a clause to the effect that one who stays and establishes in their house at Velsao shall pay to the other Rs.500/- and will also have no right to further share in other properties and that in case none of them wish to establish in the said house they shall have equal right in the said property. It is further their contention that as the party no.3 had chosen to take the house and having established herself in the house, she has forfeited her right to the properties. It was her contention that the parties nos. 1 and 2 are only entitled to the suit property and, consequently, to the amount awarded in the said acquisition proceedings. It is further her case that in Regular Civil Suit no. 31/95/D, the said aspect was considered and by Judgment -5- dated 8th January, 2001, it was held that the party no.3 seized to have any right to the suit property and the same rested with the party nos.1 and 2. The said party further contended that by letter dated 15 September, 1994 whilst forwarding their claim before the Land Acquisition Officer, she had put up a claim to only one half of the suit property along with her said sister the party no.2 as the said claim was made before the Judgment passed in said Regular Civil suit no. 31/95/D. In view of the said Judgment, the party nos. 1 and 2, claimed for the full compensation awarded in the said proceedings. For the other reasons stated in the said written statement, it was the contention of the parties nos. 1 and 2 that the total amount of compensation awarded in the said proceedings is to be paid to them. 5. The party no.3 has filed her written statement. The said party claimed that the said property originally belonged to Jose Marian Pereira and his wife Maria Amalia Sinforse Alemao, who is her grandparents and the same devolved upon their son Agostinho Santos Pereira and, after his death, the same devolved upon his sisters Maria Josepha Pereira and Maria Cecilia Pereira. The execution of the Public Wills dated 26th May, 1926, were not disputed by the party no.3 but it was her contention that the entire property was bequeathed to the party no.3 and her sister Maria Jovita Pereira, who is the mother of the party nos. 1 and 2 with the condition that the one who establishes in the ancestral house, should pay Rs. 1000/- being Rs. 500/- on each of the Public Will and shall be entitled to their properties and the other one shall have no further share. In short, it was her contention that one who establishes in the ancestral house would be entitled to the property and pay a sum of Rs.500/- and the one who receives the said amount of Rs.500/- will have no further shares in the properties. It is further her case that the -6- one who gets the properties were also liable to pay the debts of the deceased. It is further her contention that upon her marriage to Shri Venkatesh Kharangate, the party no.3 established in the said ancestral house at Velsao where she alongwith her family reside and that her sister Maria Jovita Pereira, married to Shri Victor Gomes who was from Mapusa went to settle and established in Africa. It is further her contention that her late husband paid a sum of Rs.1000/- to the said Maria Jovita Gomes and also paid the debts, the loans of the testatrix and had established and settled in the said ancestral house and having complied with the conditions of the said Wills became entitled to and became owner of all the properties of the testatrix which included the acquired property. Giving different instances of the steps taken by the said party no.3 for protecting the said property and initiating legal proceedings, it was her contention that she was in possession of the land acquired. It was further her contention that the mother of the party no.1 never put up any claim over the suit property and it was only when the land was acquired that she changed her stand and claimed for half of the property i.e. survey no. 15/1 and not to half of entire property. It was her contention that in view of the compliance of the conditions of the said Will, the party no.3 was not only the owner by virtue of the Will but also by virtue of exclusive and uninterrupted possession and enjoyment resulting in prescriptive title of the land. As such, the party no.3 claimed that the total amount awarded was payable to her. 6. The learned District Judge, after framing the issues and considering the evidence adduced by the parties, by the impugned Judgment and Award dated 10th December, 2004, disposed of the reference under Section 30 of the said Act and held that the balance compensation alongwith accrued interest is to be paid to -7- the party no.3. The learned Judge found that as per the Award of the Land Acquisition Officer, the amount of compensation awarded was a sum of Rs.1,91,88,897/- and that at the time of taking possession, a sum of Rs.1,26,59,737/- was paid to the party no.3 and her family members and that the said party no.3 was entitled to the balance compensation which is Rs.1,26,59,739/- . 7. Being aggrieved by the said Judgment and Award, the party no.1 has preferred the said First Appeal no.88/2005 and the party no. 3 has preferred the said First Appeal no.87/2005 . 8. The learned Senior Counsel Shri M. S. Usgaonkar, appearing on behalf of the party no.1, has assailed the impugned Judgment and Award and submitted that the learned District Judge has totally misdirected himself in interpreting the Will dated 26th May, 1926, executed by the testators. He further submitted that on plain reading of the said Will, it is manifestly clear that the person who establishes in the ancestral house, is not entitled to any of the remaining properties on receipt of the sum of Rs.500/- on account of the share of each of the testators. He further submitted that the effect of payment of Rs.500/- is that party no.3 loses the right to any of the properties. He further pointed out that the payment of Rs.500/- should precede the establishment into the ancestral house and as this condition was not satisfied in the present case. He further submitted that, in any event, it is manifestly clear that both the beneficiaries of the Wills are entitled to half share in the properties as the condition has not been satisfied. The learned Senior Counsel has taken us through the Will dated 26th May, 1926, and -8- pointed out that on plain reading of the said Will, inter alia, envisages as under : The payment of debts equally of the testatrix which were duly supported by documents; one who wishes to settle in the ancestral house has to pay to the other Rs.500/- without right to any share. If no legalitee settles in the house, both get equal shares. The disposition in the said Will not only include the properties which were belonging to the testatrix at the time of the Will but also the properties which were acquired in future which were entitled at the time of their death. The learned Senior Counsel further pointed out that the clause of settling in the house was depending upon several contingencies namely the consent the other testatrix, payment of Rs.500/- to the other co-legatee and consent of the other co- owners of two third of the property as according to him the testatrix were entitled to only one third in the ancestral house. The learned Senior Counsel further pointed out that thereafter Inventory Proceedings were initiated upon the death of Agostinho Pereira, in respect of his assets and the shares which accrued to the testators on the date of the Will besides other parties included 1/6th of the house property Belady to the testator Josepha and 1/6th to the testator Cecilia and the said Inventory Proceedings were concluded in September, 1929. He further pointed out that on 26th of July, 1929, the acquired property Santorem, consisting of two plots namely plot no.1 was allotted to Maria Josepha and plot no.2 was allotted to Maria Cecilia. The said Maia Josepha expired on 21st January, 1932 while the said party no.3 claimed to have established in the ancestral in the year 1938. The alleged payment of Rs.1000/- is claimed to be effected in the year 1940 and the other testatrix namely Ana Maria Cecilia expired on 22nd November, 1947. The learned -9- Senior Counsel as such contended that on the basis of such undisputed facts, it is evident that the alleged payment did not precede the establishment of party no.3 in the ancestral house and that by no stretch of imagination, the said alleged payment be construed to be with regard to the rights of the testatrix Ana Maria Cecilia who expired in 1947. It is further submitted that land acquisition proceedings came to be initiated on 2nd August, 1994. He as such submitted that on plain reading of the Will, as the party no.3 established in the ancestral house and made the said payment she had forfeited her rights to the remaining properties and as such the party nos. 1 and 2 were entitled for the entire compensation awarded in the present proceedings. The learned Senior Counsel has taken us through the relevant provisions of the Portuguese Civil Code, which we have considered herein below to advance his submission that the party nos. 1 and 2 are entitled to the total amount of compensation deposited in the reference proceedings. The learned Senior Counsel relying upon Article 678, 679 and 680 of the Portuguese Civil Code submitted that as the condition imposed in the Will could not be satisfied as the testatrix were not entitled to the full ownership of the ancestral house, such conditions are to be considered as having no legal effects. 9. On the other hand, the learned Senior Counsel, Shri M. B. D'Costa, appearing for party no.3 has supported the impugned Judgment. He submitted that there is no dispute that the amount of Rs.1000/- was paid by the party no.3 and, as such, in view of the receipt of the said amount, the party nos. 1 and 2 have no right to any portion of the suit property as they had forfeited their share in the properties of the testatrix. He further submitted that the Will executed by the testatrix is very clear inasmuch as the same contemplates that the only condition imposed therein -10- is that one who establishes in the ancestral house would have to pay a sum of Rs.500/- to the other beneficiary so that her right in the properties of the testatrix would stand forfeited in favour of the party no.3. The learned Counsel has taken us through the written statement of party no.2 and pointed out that there was clear admission that Rs. 500/- was paid by party no.3 and that she had established herself to reside in the ancestral house. He further pointed out that the payment of Rs.1000/- also included the amount to be effected as per the Will executed by the said Ana Maria Cecilia Pereria, who expired on 22nd November, 1947. He further submitted that there is evidence on record to disclose that since the time of the death of the testatrix, the possession of the property was with the party no.3 and in view of such lawful possession, the party no.3 had acquired a prescriptive title over the said property. He further submitted that the long possession of the party no. 3 itself demonstrates that the mother of the party nos. 1 and 2 had accepted the fact that in view of the payment of Rs.1000/- by the party no.3, she had no right or claim over the remaining properties of the testator. He further submitted that the Reference Court has duly examined the evidence on record and has come to the correct conclusion that the party no.3 is entitled to the total amount of compensation awarded in the acquisition. He accordingly submitted that no interference is called for in the impugned Judgment and Award and the above Appeals deserves to be dismissed. 10. Shri A. R. Kantak, learned Counsel appearing on behalf of the party no.2, has adopted the submissions of learned Senior Counsel Shri Usgaonkar and further pointed out that there is no evidence adduced by the party no.3 about the actual payment of the said sum of Rs.1000/-. He further submitted that there is no -11- evidence on record to establish that the condition was duly complied with and as such the question of the party no.3 claiming exclusive ownership of the land acquired would not arise at all. 11. Having heard the learned Counsel and on perusal of the evidence on record, we find that the following point for determination arises in the present Appeals : 1. Whether the Reference Court was justified in awarding the total amount of compensation to the party no.3 ? 12. Though both the learned Senior Counsel have advanced submissions with regard to the right, ownership and possession to the ancestral house on the basis of the Will executed by both the testatrix on 26th May, 1926, we find that the said ancestral house is not the subject matter of the dispute in the above Appeals. There were rival contentions raised by the learned Counsel that there was no evidence to establish the payment of Rs.1000/-, however, Shri M. B. D'Costa, the learned Senior Counsel appearing for party no.3, has pointed out that in the written statement filed by party no.1, Maria Erta, she has admitted that party no.3 had impliedly chosen to establish herself in the house and as such forfeited her right to the properties. There were also arguments advanced by the learned Senior Counsel appearing for party no.1 and party no.2 that the party no.3 claims that the establishment did not precede the payment of the amount. Admittedly, one of the testators Ana Maria Cecilia, expired on 22nd November, 1947. It is well settled that the Will creates legal effects from the date of the opening of inheritance. As such, one will have to consider as to how a payment could be effected in the year 1940 -12- for the purpose of having legal effects in respect of the Will executed by the testator who expired in the year 1947. These disputes, in any event, would not be material for deciding the matter in controversy in the present Appeals as the right and ownership of the ancestral house is not the subject matter in dispute in the present case. The point in controversy in the present proceedings is to ascertain as to whether a person who established in the house and effects the payment as stipulated in the Will to the other legatee, forfeits her rights to the land acquired. In other words, the point to be ascertained is as to whom the land acquired belongs in ownership. 13. It is not disputed that at the time of the execution of the Will in the year 1926, the land acquired did not belong to both the testatrix. The said property came to belong to the said testatrix only upon the disposal of the Inventory Proceedings initiated upon the death of Agostinho Pereira on 16th July, 1929. Both the Wills executed by the testatrix are of similar nature. The condition stipulated in the Will as disclosed in the translated copy furnished to us reads as under : “That she, the testatrix having no forced heirs by the present Will, she institutes as her sole and universal heirs her nieces Maria Jovita Victoria Ermelinda Brigida de Bom Parto Pereira and Maria Amalia Agonizante Brazilia dos Reis Pereira, the minor children of her late brother Antonio dos Reis Pereira, late of Velsao and bequeaths in favour of both of them in halves all her moveables and immoveable properties, rights and shares acquired and to be acquired under the following causes :- of paying all her debts which may be mentioned in the documents. In case one of the instituted heirs wishes to establish -13- herself in her house, this one shall pay Rs.500/- without any right to future share. In case none of them wish to establish in her said house, they shall have equal right to the properties i.e. in halves.” 14. On perusal of the clauses in the said Will, we find that on payment of the sum of 500/-, the person who establishes in the ancestral house, would be entitled to the share of the other testatrix in respect of such ancestral house. It cannot be said that on payment of Rs.500/-, the beneficiary of the Will would forfeit her rights to all the properties of the testator. Such payment of Rs.500/- can at the most be considered to be on account of the share of the other beneficiary, who has chosen not to establish in the ancestral house, in respect of her share in such ancestral house. The contention of the learned Senior Counsel Shri M. S. Usgaonkar and learned Counsel Shri Kantak to the effect that having paid Rs.500/-, the party no.3 has forfeited right to the remaining properties, cannot be accepted. The interpretation of the said Will leads us to come to the conclusion that the payment of Rs.500/- was in order that the person who establishes in the house would have a whole right of the testatrix to belong to such person. It cannot be accepted that such payment extends to forfeiture of any right of any of the beneficiaries of the Will in respect of the remaining properties of the testatrix. From first part of the said Will it is evident that the intention of the testatrix was to bequeath her said nieces Maria Jovita and Maria Amalia in equal half all her moveable and immoveable properties, rights and shares acquired and to be acquired by them. As such, we find that on interpretation of the said Will, the rights of the party no.3 in respect of the land acquired would be to the extent of one half while the rights of party nos. 1 and 2 would be to the extent of the remaining half. -14- 15. Apart from that, from the foregoing narration of the facts, we find that admittedly, one of the testatrix had expired in the year 1947 and it cannot be accepted that on the basis of the alleged payment in the year 1940, her rights over the land acquired could have been forfeited in favour of any of the beneficiaries of the said Will. Article 1739 of the Portuguese Civil Code provides that the act by which a person disposes of the whole or part of his property, to take effect after his death is called Will. Hence, the law provides that the legal effects of the disposition are effective only after the death of the testator. Article 1761 of the Portuguese Civil Code provides that in case of doubt as to the interpretation of the testamentary disposition, what seems to be more in consonance with the intention of the testator shall be observed in keeping with the context of the