IN IN IN THE HIGH COURT OF BOMBAY AT GOA THE HIGH COURT OF BOMBAY AT GOA THE HIGH COURT OF BOMBAY AT GOA FIRST CIVIL APPEAL NO.63 OF 1993 Lina Cassiana Correia dos Martyres, resident of Sataporio, Moira ...APPELLANT ...APPELLANT ...APPELLANT versus 1. Condorcet Nolasco Correia, deceased, through his legal representatives i) Mrs. Valdermina Mascarenhas; ii) Luis Mascarenhas, deceased through his legal repre- sentatives: a) Mrs. Beryl Sundam; b) Edwin Sundam, both residents of 5/53 Ring Street, Wellstoncraft, N.S.W. 2060,Australia; c) Mrs. Amy D’Souza; d) Hector D’Souza; both residents of B-19, New Barkeley Place, Byculla, Bombay; e) Mrs. Celie Drakes; f) Spiro Drakes, Both residents of 134, Prince Edward Avenue, Earswood, N.S.W.2206, Australia; g) Mrs. Daisy Freitas h) Roland Freitas, both residents of 30, Whitton Road, Chatswood, N.S.W. 2067,Australia; i) Miss Elizabeth Mascarenhas, resident of ’Miralou’ Bella Vista,Sangolda; iii) Mrs. Hilda Afonso; - 2 - iv) Mrs. Martha Maciel; v) Lazarus D’Cunha; vi) Mr. Almiro D’Cunha (a) Mrs.Maureen D’Cunha; both residents of Canada; vii) Miss Melanie D’Cunha; viii) John D’Cunha, a) Mrs. Magdalena D’Cunha, resident of Bombay; ix) Jose B. Correia; x) Iris Correia; xi) Leena Correia; xii) Roberto J. Correia; xiii) Mrs. Joyce Correia; xiv) Ernesto Nicolau Correia; 2. Anita de Souza, resident of Sataporio, Moira ...RESPONDENTS ...RESPONDENTS ...RESPONDENTS. ----- Shri S.G. Dessai, Senior Advocate,with Shri S.D. Padiyar, Advocate, for the Appellant. Shri S.D. Lotlikar, Senior Advocate,with Shri A.D. Bhobe, Advocate,for the Respondent No.2. ----- CORAM CORAM CORAM : A.S. AGUIAR,J. : A.S. AGUIAR,J. : A.S. AGUIAR,J. Date of reserving the Judgment:-January -January -January 10,2001. 10,2001. 10,2001. Date of pronouncing the Judgment:-February -February -February 8, 2002. 8, 2002. 8, 2002. JUDGMENT Heard the learned Advocates. - 3 - The Appeal is directed against the Judgment and decree passed by the Civil Judge, Senior Division, Mapusa in Special Civil Suit No.36 of 1980 whereby the said suit was dismissed. 2. Some relevant facts: The Plaintiff/Appellant filed a suit claiming to be the co-owner of the properties described in Para 1 of the plaint. The said properties were surveyed under Survey No.147/7, 147/9, 146/10, 147/13, 146/31 and 147/12. It is averred by the Plaintiff that the Defendant No.1 (Respondent No.1) was selling a portion of one of the properties along with the house. Hence the Plaintiff’s brother Jose Brasiliano Correia filed Special Civil Suit No.11 of 1979 along with Miscellaneous Application also bearing No.11 of 1979, for temporary injunction restraining the Defendant No.1 from selling the property. The said Defendant No.1 in the said suit undertook not to sell the property and the said suit was disposed of accordingly with the said undertaking on 9th August, 1979. However, despite the said undertaking and order of the Court, the Defendant No.1 mortgaged to the Defendant No.2 the house - 4 - with the property for Rs.20,000/- ostensibly lent to him by the said Defendant No.2. The plaint also averred that Defendant No.1 gifted to Defendant No.2 all other properties referred to at Items No.1 to 5 in Para 1 of the Schedule, which properties were the subject-matter of the inventory proceedings. 3. It is the contention of the Plaintiff/Appellant that Defendant No.1 had no right to mortgage or gift the said properties to Defendant No.2 without permission/consent of the other co-owners. It is further contended that the suit properties formed part of the estate of the deceased Nonato de Correia and in inventory proceedings No.86 of 1978, the Court of Civil Judge, Senior Division, Mapusa allotted some of the suit properties to the Plaintiff, details of which are set out in Para 9(a) of the plaint. Plaintiff, therefore, claims to have acquired absolute title in the suit properties in view of the allotment of the suit properties to her in the inventory proceedings and in the wake of these facts, the Plaintiff initiated the present dispute by filing suit being Special Civil Suit No.36 of 1980 for declaration and possession in which the above impugned order was passed. - 5 - 4. The Defendants No.1 and 2 resisted the Plaintiff’s claim and have each filed separate written statements. 5. In his written statement the Defendant No.1 claimed that he was the owner of the suit property by title and claimed to be an exclusive owner of the suit property for over 40 years without any interference from anybody and, therefore, set up title to the suit properties by way of adverse possession. 6. Defendant No.2 in her written statement took up the defence that the suit was bad for non-joinder of necessary parties; that the Plaintiff, being a British National, could not file the suit without obtaining prior permission from Reserve Bank of India; that the Defendant No.1 was the exclusive owner in possession of the suit property before executing the mortgage deed and the gift deed and, therefore, the said property was rightly transferred to her name. 7. The trial Court on the basis of the pleadings of the parties framed the following Issues: - 6 - 1. Whether the plaintiff proves that the properties referred to in paragraph 1 of the plaint belong to the plaintiff, to the defendant no.1 and to several other persons ? 2. Whether the plaintiff proves that the mortgage deed by which the defendant no.1 mortgaged in favour of the defendant no.2 the house property referred to in paragraph 1 of the plaint, is null and void ? 3. Whether the plaintiff proves that the deed by which the defendant no.1 gifted to the defendant no.2 all the remaining properties mentioned in paragraph 1, is null and void ? 4. Whether the defendant no.1 proves that all the suit - 7 - properties were enjoyed by him exclusively, peacefully and uninterruptedly with animus Domini for more than 40 years, having acquired right to them by prescription ? 5. Whether the defendant no.2 proves that the suit is bad for non-joinder of the plaintiff’s husband ? 6. Whether the defendant no.2 proves that all the alleged co-owners of the suit property should be made parties to the suit ? 7. Whether the defendant no.2 proves that the plaintiff should pay Court fee on the value of Rs.25.000/- in addition to the other reliefs prayed in the suit? - 8 - 8. The Plaintiff in the suit while claiming to be a co-owner in possession of the suit properties along with the Defendant No.1 and others, sought a declaration that the mortgage deed and the gift deed are null and void and also sought recovery of possession of the said property from Defendant No.2,who claimed to be in possession under the deed of mortgage and the gift deed. 9. The Plaintiff also claimed that the suit properties were allotted to her in inventory proceedings on 15-3-1983 and, as such, she has become exclusive owner and title holder of the suit properties. It is pointed out that the allotment of the said properties was not challenged by Defendant No.2 or any other aggrieved person and, therefore, the allotment had become final. 10. In view of the above, on 8-3-1984 the Plaintiff amended the plaint claiming to be the sole owner of the properties on the basis of order in the inventory proceedings and in reply thereto, on 6-8-1984, an additional written statement was filed by Defendant No.2. On the amended pleadings, an additional issue, being - 9 - Issue No.8 was framed, namely: VIII. Whether the Plaintiff acquired absolute title to the suit properties ? Two other Issues, 9 and 10, were also framed:- IX. Whether the Defendants prove that the Plaintiff is entitled to hold property, though she is a foreign national ? X. Whether the suit is bad for nonjoinder of her husband ? 11. On 16-11-1984 the Defendant No.1 expired and his heirs were brought on record. However, none of the heirs of Defendant No.1 have appeared in Court at any time. Hence the suit proceeded ex-parte against them. - 10 - 12. The trial Court, after recording evidence of the parties, dismissed the suit holding that the Plaintiffs have failed to prove that the properties referred to in Para 1 of the plaint belonged to the Plaintiff, Defendant No.1 and other co-owners and also held that the Plaintiff failed to prove the mortgage deed in favour of Defendant No.2 was null and void. The trial Court also held that the Plaintiff had failed to prove that the deed by which the Defendant No.1 gifted to Defendant No.2 all the remaining properties mentioned in Para 1 of the Schedule was null and void. Further, the trial Court held that the suit was bad for non-joinder of all parties as all co-owners of the properties in question were not impleaded as parties to the suit. Thus, it appears that the trial Court had recorded adverse findings against the Plaintiff on all Issues and hence the suit by the impugned Judgment and decree dated 22nd March, 1993, came to be dismissed. 13. The trial Judge dismissed the suit, inter alia, on the following grounds:- (1) That there are contradictions in the case set out by the Plaintiff in Para 1 of the - 11 - plaint and Para 10(a) and (b) of the plaint; (2) That the Plaintiff has failed to explain as to how the share of Defendant No.1 was allotted to her when the Defendant No.1 had already mortgaged and gifted the suit properties to Defendant No.2; (3) That the Plaintiff had not sought any declaration that she was the co-owner of the suit properties or absolute owner of the properties and without seeking such declaration, Plaintiff’s suit was not maintainable; (4) That the Plaintiff had not challenged the Survey entries made in favour of Defendant No.1 nor had the other co-owners objected to the same; (5) That the Plaintiff had not proved that the two documents were sham documents; and (6) That the Plaintiff had admitted the right of Defendant No.1 to the suit properties. The matter was taken in appeal and a Single Judge of this Court allowed the Appeal. - 12 - However a Division Bench of this Court in Letters Patent Appeal No.12 of 1996 remanded the matter back to the Single Judge for disposal of the appeal according to law. 14. On a rehearing before this Court from the said impugned Judgment and decree, the learned Advocates for the respective parties have made oral and filed written submissions. On behalf of the Appellant/original Plaintiff, it has been contended that the suit is essentially framed under Section 31 of the Specific Relief Act, 1963, as the Plaintiff had reasonable apprehension that the documents, namely, the deed of mortgage and deed of gift, which were allegedly concocted documents, if left outstanding, would cause serious injury and, therefore, the Plaintiff is entitled to have the said documents/instruments declared void or voidable. The reason for filing the suit for cancellation of documents was to remove the cloud on the title of the Plaintiff to the said property caused not by the assertion of title by the executant Defendant No.1, but by the mere fact of execution of the said documents by Defendant No.1 in favour of Defendant No.2. It is the contention of the Plaintiff that the gift - 13 - deed and mortgage deed are void as the Plaintiff is co-owner of the said properties and after the 1978 inventory proceedings, when the said properties were allotted to her, as exclusive owner of the said properties. Hence the said Defendant No.1 could not have either mortgaged or gifted the said properties to a third person. It is pointed out that the said instruments, deed of mortgage and the gift deed, were executed by Defendant No.1 in favour of Defendant No.2, a total stranger to the properties. 15. It is further contended that since the Defendant No.1 and the Defendant No.2 were joined as parties to the suit as they were necessary parties to the suit and it was not necessary for the Plaintiff to have joined anybody else for the purpose of obtaining the relief sought in the suit. Hence, the suit could not have been dismissed for non-joinder of other parties nor could the suit be dismissed for non-joinder of the husband of the Plaintiff as the husband of the Plaintiff was not necessary party to the suit, or for not bringing some of the heirs of the deceased Defendant No.1 on record, since, if there are two or more heirs and legal representatives of the deceased party and one or - 14 - more has been brought on record within time, the suit or appeal does not abate on the ground that all the legal representatives have not been brought on record. The said persons were not necessary parties as they were not required for effective adjudication of the dispute in the suit. 16. It is further contended that there is no inconsistency in the pleadings and, therefore, the dismissal of the suit on the said ground is wrong. At the time of the filing of the suit it was clarified that the Plaintiff had claimed to be co-owner of the suit property along with Defendant No.1 and other heirs. Subsequently, since the said properties were allotted to the Plaintiff on 15-3-1983 in the inventory proceedings of 1978, she became the exclusive owner thereof. Hence amendment was necessitated and the amendment was granted on the basis of which further issue, namely, Issue No.8 was framed. It is contended that for the purpose of obtaining the relief under Section 31, it was not necessary for the Plaintiff to prove that Plaintiff was co-owner or exclusive owner. However, the trial Court has failed to give a finding whether the Plaintiff was co-owner or - 15 - exclusive owner for the purpose of granting the reliefs claimed in the suit. 17. It is further contended that the Plaintiff had produced the title documents of the suit properties, namely, the allotment order dated 15-3-1983 in the inventory proceedings of 1978, whereby the suit properties were allotted to her. The said title documents produced by the Plaintiff have not been countered or controverted or disproved by any of the adverse parties and hence, the order passed in the inventory proceedings is binding upon Defendant No.1 and/or his heirs and, consequently, also upon Defendant No.2. 18. It is further contended that Defendant No.1 had failed to prove that the suit properties were adversely possessed by him as no evidence was led to prove the same. The evidence of Defendant No.2 has not proved the ownership of the properties in favour of Defendant No.1 by title or otherwise. On the other hand, documentary evidence has been produced by the Plaintiff, namely, the 1915 inventory order showing that the suit properties belonged to the grandparents of the Plaintiff and the devolution - 16 - of the said properties upon their heirs including the father of the Plaintiff and also the subsequent document of title of the inventory Court allotting the said suit properties to the Plaintiff in inventory proceedings of 1978. These documents have not been controverted or rebutted by the Defendants. It is contended that the learned trial Judge has failed to consider this material documentary evidence proving the title of the Plaintiff either as a co-owner or absolute owner. 19. It is the submission of the learned Advocate for the Appellant that Issues No.5, 6 and 10 are, in fact, irrelevant for the purpose of deciding the suit or the actual controversy in the suit. The real issues are Issue No.4 and Issue No.1 or, alternatively, Issue No.8. It is contended that Issue No.4 i.e. "Whether the Defendant No.1 was the owner by adverse possession of the suit properties?" has been rightly decided against Defendant No.1. However, the learned trial Judge has not properly answered Issues No.1 and 8 and has not even discussed the merits of the said Issues. 20. It is the contention of the learned - 17 - Advocate for the Appellant that the four documents, namely the will, lease deed, mortgage deed and the gift deed, are ex facie fraudulent. It is pointed out that when the said documents were executed, the Defendant No.1 was 86 years old and the said documents were executed one after another in quick succession by Defendant No.1 favouring a total stranger, Defendant No.2, to the exclusion of his kith and kin. It is pointed out that by will dated 22-1-1980 five of the suit properties were bequeathed to Defendant No.2 by Defendant No.1 and another property, the sixth property, was also leased on the same date. However, within a short span of just a month the Defendant No.1 mortgaged the sixth property leased earlier on 22-1-1980 and also gifted the five properties which were earlier willed in favour of Defendant No.2 by a will executed on 21-2-1980. The sequence of events makes the documents highly suspect since, when there was a will, where was the necessity of making a gift of the said properties and where was the need for executing a mortgage in respect of the said leased properties It is further pointed out that the only incident that took place prior to the filing of Civil Suit of 1980 in which the impugned decree - 18 - was passed, was the institution of Special Civil Suit No.11 of 1979 by the brother of the Plaintiff against the Defendant No.1 wherein the Defendant No.1 gave undertaking to the Court not to alienate the sixth property which he had earlier leased in favour of Defendant No.2. After filing of the said suit by the Plaintiff’s brother, the Plaintiff also instituted inventory proceedings claiming the suit properties. It is, therefore, contended that the said four documents were got executed by the Defendant No.2 taking advantage of the old age of Defendant No.1 and by exercising undue influence in order to see that the suit properties were somehow transferred in her favour despite knowing that the brother of the Plaintiff had started claiming to be the co-owner of the suit properties. It is further contended that it could not be said that Defendant No.2 was not aware of Special Civil Suit No.11 of 1979, since it is her case that the Defendant No.1 was being looked after by herself and her mother since the year 1972. The aforesaid circumstances, therefore, show that the Defendant No.2 was in a position to exert undue influence, coercion and pressure on Defendant No.1 who was an old man of 86 years at the time of executing the said impugned documents. - 19 - 21. Furthermore, it is contended that possession of one co-owner cannot by itself be adverse to the other co-owners. On the contrary, possession of one co-owner amounts to possession by all co-owners unless it is established that the possession of the co-owner amounts to a denial of title of the other co-owners and the possession of that co-owner is hostile to the other co-owners by their exclusion from the said property. 22. It is further contended that Article 1566 of the Portuguese Civil Code refers to preferential rights of a co-owner and prohibits a co-owner from selling his indivisible and undivided share in the property to a third party unless option is first offered to the other co-owners and the other co-owners fail to exercise their option by purchase of the said property. The said Article also provides for quashing of sale deed in favour of a stranger. Further, it is pointed out that Article 2177 of the Portuguese Civil Code prohibits a co-owner from disposing specifically his co-ownership rights without the same being first allotted to him in a partition. - 20 - 23. It is finally contended that the trial Judge had not considered the documentary evidence on record relating to the said property for the purpose of deciding the suit despite the Plaintiff having proved beyond all reasonable doubt that she is the title holder of the suit properties, at least as a co-owner if not an absolute owner. That the Defendants had failed to prove that the Defendant No.1 was the absolute owner of the suit property by adverse possession and, therefore, the reliefs as prayed for had to be granted and decree in terms of the said prayers had to follow as a matter-of-course. 24. On the other hand, the learned Advocate for the Respondents/original Defendants, submitted that the case argued before this Court by the Appellant is beyond the pleadings and, therefore, ought not to be considered. It is pointed out that the Appellant has nowhere pleaded that the suit properties which he had described in Para 1 of the plaint were the subject-matter of any inventory proceedings held in the year 1915, upon the death of Jose Lino Correia. Therefore, the Plaintiff/Appellant is precluded from contending that the suit properties were the subject-matter of the - 21 - inventory proceedings of the year 1915 and that they were allotted to her father or grandmother. Such a case is de hors de hors de hors the pleadings and, therefore, ought not to be considered. It is further pointed out that the Plaintiff had merely averred in the plaint that she was owner and in possession of the properties described in Para 1 o the plaint, jointly with other co-owners, i.e. her brothers and sisters-in-law and also Defendant No.1 and his nephews and nieces through his brother and sister. That the only case pleaded by the Appellant in the plaint is that she is co-owner of the suit property along with Defendant NO.1 and others. That there is not a whisper as to how she became co-owner of the suit properties along with Defendant No.1 whose right in the suit properties she has categorically admitted. It is further pointed out that since the Plaintiff has not pleaded that the suit properties were subject-matter of an inventory proceedings of 1915, it was not permissible for her to contend that she has become co-owner of the suit properties by virtue of the allotment made in the inventory proceedings of 1915 and that mere production of the documents of inventory of the year 1915 cannot advance the case of the Plaintiff. Relying upon the - 22 - observations of the Supreme Court in AIR 1979 SC 1652, it is contended that "if there is no pleading raising the question, there is no question of proving something which is not pleaded. It is well settled that the allegation which is not pleaded, even if there is evidence in support of it, cannot be examined if the other side has no notice and, if entertained, would tantamount to granting an unfair advantage to the party......" 25. The next contention of the Respondents is that the Appellant has failed to establish the co-relation between the properties which were subject-matter of 1915 inventory proceedings and the suit properties. It is contended that it is not possible for the Appellant to make out any case of co-ownership without correlating the suit properties with the properties allotted under the inventory proceedings of 1915. 26. In connection with all the four documents impugned by the Plaintiff, it is contended by the Respondents that the Defendant No.1 died at the age of 92 years i.e. 6 years after the execution of the said documents. That the only challenge to the documents is the right - 23 - of the Plaintiff to mortgage/gift the said properties, as he was only a co-owner thereof. The authenticity of the said documents has, however, not been challenged. There is no challenge to the said documents on the ground of either undue influence or fraud. It is further pointed out that there is no challenge in the plaint to the will nor is there any reference in the plaint to the lease in respect of the house situated in the suit property. 27. In connection with the frame of the suit, it is pointed out that the contention of the Plaintiff that the suit is under Section 31 of the