-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 28 OF 1998 Shri Gopinath Kusta Fatto Desai (since deceased) through legal representatives: 1(a) Smt. Surang N. Fotto Dessai, daughter of the deceased 1(b) Shri Nandu Mahadev Fotto Dessai, Husband of Surang N. Fotto Dessai, Both r/o. Shelvon, Curchorem, Goa. …. Appellants V e r s u s 1. Shri Babal Gopinath Fotto Desai, major, service, 2. Shri Sudesh Babal Fotto Desai, major, son of Babal Desai, 3. Master Avinash Babal Fotto Desai, minor, represented by his mother & natural guardian respondent no.4, Smt. Suchita Babal Fotto Desai, 4. Smt. Suchita Babal Fotto Desai, major, housewife, wife of Babal F. Desai, all residents of Shelvon, Quepem, Goa. 5. Smt. Shrimati Tiru Borkar, Daughter of deceased, 6. Shri Tiru Biku Borkar, Husband of Shrimati T. Borkar, Both r/o. Tishem, Borim, Near old Borim Bridge, Borim – Goa. …. Respondents Shri S.D. Lotlikar, Senior Advocate with Ms. S. Pai Kir, Advocate for the Appellants. -2- Shri C.A. Coutinho, Advocate for the Respondents. CORAM : F.M. REIS, J. DATE : 4 th OCTOBER, 2011 ORAL JUDGMENT : Heard Shri S.D. Lotlikar, learned Senior Counsel appearing for the appellant and Shri C.A. Coutinho, learned Counsel appearing for the respondents. 2. The above Second Appeal has been admitted on 18/12/1998 on the following substantial questions of law: (a) Whether revocation of a power of attorney would become effective from the date on which the notice revoking the power of attorney is posted or the date on which it is received by the person in whose favour the power of attorney is executed. (b) Whether in view of the fact that, what the respondent no.1 had executed was a gift deed and therefore a gratuitous transfer in favour of his own children, who were then minors, the revocation of the power of attorney was liable to be held effective from the date the appellant decided to revoke the power of attorney? (c) Whether the Courts below are justified to come to the conclusion that the Deed of Gift dated 02.04.1983 gifting as specific property in favour of the donee is tenable in law and can be considered towards the disposal of the suit? 3. Dealing with the third substantial question of law, I find that by the impugned Deed of Gift, a specific property has been gifted in favour of the sons of the respondent no.1. There is no dispute that at the time of the -3- execution of the Deed of Gift, the wife of the appellant-Gopinath had already expired. Upon her death, her estate devolved upon her legal heirs and, as such, the properties including the gifted properties did not exclusively belong to the said deceased Gopinath as the properties admittedly were not partitioned. 4. Article 1766 of the Portuguese Civil Procedure Code, inter alia, provides that those married as per the custom of the country shall not, under penalty of nullity, dispose of certain and specific properties of the couple, except if the said properties have been allotted to them in partition. Admittedly, the property sought to be gifted were not allotted to the Appellant and considering the said provisions of the Portuguese Civil Procedure Code, the Deed of Gift itself appears to be a nullity. This Court in the Judgment reported in 2006(3) AIR Bom. 227 in the case of Mrs. Mariana Carmelina Fernandes & Ors. vs. Antonio Gomes & Ors. has held at paras 10 and 11 thus : “10. It is also to be noted that the question of transfer of disposable quota by itself cannot arise. Disposable quota is a right in favour of a party to transfer half share in the property. In the case in hand admittedly no disposable quota of the donor with reference to the properties gifted in the deed was ascertained on or prior to the date of execution of the deed. It was only after ascertaining such quota that the donor could have gifted the same. In order -4- to enable a party to transfer something by way of gift, it has to be an existing property. In terms of Article 1452 Gift is a contract by which a person transfers to another gratuitously a part or totality of present properties. Article 1453 of the Code provides that the gift shall not include properties in future and the Sole Paragraph to the said provision specifies that future property means those, which are not existing in possession of the donor, or to which he has no right at the time of making the gift. Similarly section 122 of the Transfer of Property Act defines gift to mean the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void. Section 124 of the Transfer of Property Act provides that gift comprising both existing and future property is void as to the latter. 11. It is not in dispute that a moiety holder cannot execute Gift deed in respect of the specific properties which are subject- matter of inventory proceedings in the absence of consent of all the legal heirs of the deceased on whose death the Inventory proceedings are instituted. The law on this aspect, in fact, is sufficiently -5- discussed in Jose Miranda Vs. Joao Mirand's, case and need not be reconsidered or elaborately discussed herein. Considering the same therefore no fault can be found with the order of the trial Court declaring the deed null and void.” In the present case, on perusal of the Deed of Gift as the Donor was not the actual full owner of the property gifted, prima facie, the Deed of Gift appears to be a nullity. The Lower Appellate Court has not considered the said aspect whilst deciding the appeal preferred by the appellant and has held that the Deed of Gift can be read down to the extent of the disposable quota which cannot hold good in view of the Judgment in the case of Mrs. Mariana Carmelina Fernandes & Ors. vs. Antonio Gomes & Ors. (supra). As such, I find that the Lower Appellate Court has not addressed the matter in controversy in a proper prospective. 5. The evidence of Shri Mahesh Kudchadkar/Pw.2 with regard to the knowledge of the Respondent no.1 about the revocation of the Power of Attorney has not been duly appreciated by the Lower Appellate Court whilst passing the impugned Judgment. The said witness had stated that somewhere on 19.03.1983. the notice was transmitted by registered post and it is alleged that such notice was received only on 06.04.1983. Pw.2, has in fact stated, that immediately after posting the notice, he had informed the Respondent about such revocation of the Power of Attorney. The Lower -6- Appellate Court has not at all considered the import of Section 208 of the Contract Act which provides that revocation is effective from the date when the same is known to the Agent. As such, the finding of the Lower Appellate Court with regard to the knowledge of the Attorney about the revocation has not been appreciated properly on the basis of the material on record. It appears that the Lower Appellate Court has misread the evidence on record on that count and, as such, has come to an erroneous conclusion that the Attorney was not aware about the revocation of the Power of Attorney at the time of its execution. Merely discarding the said evidence on the ground that there was no categorical statement when such information was given to the Respondent no.1 would itself not nullify the evidence of Pw.2. As such, the lower Appellate Court will have to consider such evidence on record along with the other evidence produced by the parties and the import of Section 208 of the Contract Act and ascertain whether the Deed of Gift was executed only after the Respondent no.1 had knowledge about the revocation about his authority. 6. Apart from that, the records reveal that the donor was not the exclusive owner of the property sought to be gifted as there were other co- owners who were also entitled to the suit properties. This also vitiates the Deed of Gift inasmuch as the disputed Deed of Gift is executed in respect of the whole property which did not exclusively belong to the Appellants at the relevant time. -7- 7. Considering all these aspects, Shri Lotlikar, learned Senior Counsel appearing for the Appellants, submits that as the other questions of law formulated by this Court would influence the factual findings on such aspects, it would be appropriate that the impugned Judgment passed by the lower Appellate Court be set aside and the matter be remanded to the Lower Appellate Court to decide the Appeal preferred by the Appellants afresh after hearing the parties. Shri Coutinho, the learned Counsel, in fact is not averse to such remand. He further pointed out that the substantial questions of law framed by this Court may not be answered and the issues raised therein be kept open to be decided by the Lower Appellate Court. 8. Considering the facts and circumstances of the case and taking note of the relationship between the parties, I find that it would be appropriate that the matter be remanded to the Lower Appellate Court to decide the Appeal preferred by the Appellants afresh after hearing both the parties in accordance with law. The substantial questions of are answered accordingly. 9. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and order dated 24/02/1998, is quashed and set aside. -8- (iii) Regular Civil Appeal No.5/1996 is restored to the file of the learned Additional District Judge, South Goa at Margao. (v) The learned Additional District Judge is directed to decide the said appeal afresh after hearing both the parties in accordance with law. (vi) All the contentions on merits by the parties are left open. (v) The appeal stands disposed of accordingly with no order as to costs. (vi) Parties are directed to appear before the lower Appellate Court on 21/11/2011 at 10.00 a.m. F. M. REIS, J. arp/*