-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 34 OF 1993 WITH CROSS OBJECTION NO. 6 OF 2011 Smt. Carmen Furtado e Britto, major, resident of House no. 271, Bamado, Chinchinim, Since deceased by her legal representatives (1) Mr. Arul Britto, Major, businessman, resident of House No.271, Bamado, Chinchinim, Salcete, Goa. (2) Smt. Sonia Britto alias Smt. Sonia Rajkumar, resident of Development Consultants Pvt. Ltd., 191, Anna Salai, Madras 600 006, India. …. Appellants V e r s u s 1. Cristovam das Angustias Furtado major in age and his wife (since deceased) by his legal representatives, (i) Mrs. Ivette Raimundo, (daughter) House No.760, Dande Vaddo, Chinchinim, Salcete-Goa. (ii) Mrs. Marlene Costa Martins, (daughter) Assolna, Salcete-Goa. (iii) Mr. Agnelo R. de C. Furtado, (son) House No.760, Dande Vaddo, Chinchinim, Salcete-Goa. (iv) Mr. Roque Joao Pedro Furtado, (son) House No.760, Dande Vaddo, Chinchinim, Salcete-Goa. (v) Mr. Sergio Roque de C. Furtado, (son) E-340, Fontainhas, Panjim 403 001, SA-34-93-XOB-6-11 -2- (vi) Mr. Dulio Roque de C. Furtado, (son) House No.760, Dande Vaddo, Chinchinim, Salcete-Goa. 2. Zulema Furtado Housewife, major in age, both resident of Chinchinim, Salcete. 3. Maurelio Furtado Doctor, major in age and his wife 4. Margaretta Neva Furtado, housewife, major in age Both C/o. P.O. Box No.1052, 58 Quay Street, Eudaberg 4670, Australia. Represented by their duly constituted Power of Attorney Shri Cristovam das Angustias Furtado, Respondent No.1, hereinabove. 5. Ulorica Cota, widow of Ceaser Furtado, resident of Betalbatim, Salcete-Goa. 6. Alexander Patricio D. Pizarro Britto alias Pat Britto, since deceased through his legal representatives (i) Mr. Arul Britto, Major, businessman, resident of House No.271, Bamado, Chinchinim, Salcete, Goa. (ii) Smt. Sonia Britto alias Smt. Sonia Rajkumar, resident of Development Consultants Pvt. Ltd., 191, Anna Salai, Madras 600 006, India. (i) and (ii) are transposed as Appellants …. Respondents WITH SA-34-93-XOB-6-11 -3- CROSS-OBJECTION NO.6 OF 2011 Smt. Carmen Furtado e Britto, r/o. Chinchinim, Salcete Goa, Since deceased through her legal heirs (i) Mr. Arul Britto, Major, businessman, resident of House No.271, Bamado, Chinchinim, Salcete, Goa. (ii) Smt. Sonia Britto alias Smt. Sonia Rajkumar, resident of Development Consultants Pvt. Ltd., 191, Anna Salai, Madras 600 006, India. …. Appellants V e r s u s 1. Cristovam das Angustias Furtado (since deceased) by his legal representatives, (i) Mrs. Ivette Raimundo, resident of House No.760, Dande Vaddo, Chinchinim, Salcete-Goa. (ii) Mrs. Marlene Costa Martins, resident of Assolna, Salcete-Goa. (iii) Mr. Agnelo R. de C. Furtado, resident of House No.760, Dande Vaddo, Chinchinim, Salcete-Goa. (iv) Mr. Roque Joao Pedro Furtado, resident of House No.760, Dande Vaddo, Chinchinim, Salcete-Goa. (v) Mr. Sergio Roque de C. Furtado, resident of E-340, Fontainhas, Panjim 403 001, (vi) Mr. Dulio Roque de C. Furtado, resident of House No.760, Dande Vaddo, Chinchinim, Salcete-Goa. SA-34-93-XOB-6-11 -4- 2. Zulema Furtado (since deceased) 3. Mauralio Furtado (since deceased) 4. Margaretta Neva Furtado, C/o. P.O. Box No.1052, 58 Quay Street, Eudaberg 4670, Australia. 5. Ulorica Cota, resident of Betalbatim, Salcete-Goa. …. Respondents (All the addresses mentioned above are the registered address) Shri A. F. Diniz, Advocate for the Appellants. Shri J. E. Coelho Pereira, Senior Advocate with Shri V. Korgaonkar, Advocate for the Respondents. Coram :- F. M. REIS, J Date : 12 th December, 2011. ORAL JUDGMENT Heard Shri A. F. Diniz, learned Counsel appearing for the Appellants and Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the Respondents. 2. The above Second Appeal challenges the Judgment and Decree passed by the Courts below dated 30.06.1990 passed in Regular Civil Suit No. 153/72/C and Judgment and Decree dated 04.11.1992 passed in Regular Civil Appeal no. 36/1990. 3. The Appeal has been admitted by this Court by Order dated SA-34-93-XOB-6-11 -5- 12.11.1993, on the following substantial questions of law : (1) Whether in view of the provisions of Benami Transactions (Prohibition) Act, 1988 the suit of the Respondent No.1 seeking a declaration that the suit properties, purchase deeds in respect of which were admittedly in the name of Dr. Jose Maria Furtado were not belonging to him exclusively or but to him and his four brothers including the Respondent No.1. (2) Whether the suit filed by the Respondent No.1 was barred by limitation in view of the provisions of Article 526 of the Portuguese Civil Code in view of the undisputed position that the two suit properties were registered in the name of late Dr. Jose Maria Furtado in the office of the Land Registrar. (3) Whether the title of Respondent No.1, if any, to the suit properties was extinguished by prescription. 4. Thereafter, by an Order dated 03.03.1997, additional substantial questions of law were framed namely : (4) Whether the Judgments of the two Courts below cannot be sustained on account of non decision of issue no.7? (5) Whether declaration dated 27.01.1960 constituted admission on the part of Jose Maria that the suit properties belonged jointly SA-34-93-XOB-6-11 -6- to all brothers and the said declaration had been duly proved ? (6) Whether statement of Jose Maria in the Inventory proceedings to the effect that the suit properties belonged to him exclusively would override the declaration dated 27.01.1990? (7) Whether the said declaration dated 27.01.1960 could be relied upon in support of the benami transaction relating to the purchase of the suit property “Antashinolem” made in 1932? 5. Thereafter, in view of the additional substantial question of law no. (iv) framed by this Court by the said Order, the matter was referred to the learned Trial Judge for deciding the said issue after hearing the Advocates for the parties without recording any further evidence. The learned Trial Judge, by an Order dated 07.10.1997, decided issue no. 7 in the affirmative. Subsequently, by an Order dated 16.07.2010, in view of the provisions of Rule 270 of Chapter 22 of the Civil Manual, the finding of the learned Trial Judge were directed to be certified by the learned District Judge. Accordingly, by Judgment dated 10.12.2010, the learned District Judge affirmed the findings of the learned Trial Judge on issue no. 7 and held that the Regular Civil Suit no. 153/72 was bad for non joinder of necessary parties. Thereafter, the above application came to be filed to add additional grounds to the cross objections. Accordingly, the matter was heard on merits. SA-34-93-XOB-6-11 -7- 6. Before adverting to the submissions of the learned Counsel appearing for the respective parties in connection with the Substantial questions of law referred to herein above, it would be appropriate to briefly state the facts of the present case. The original Respondent nos. 1 and 2 are the Plaintiffs in the suit whereas the Appellants are the original defendant nos. 6 and 7 and the original Defendant nos. 3, 4 and 5 are the other Respondents. 7. It is the case of the Plaintiffs/Respondent nos. 1 and 2 herein that they had purchased two properties namely “Cholquecasana” and the property “Antaxinollem” as described in the plaint with the monetary contribution from the Respondent nos. 1 and 2 along with his brothers namely Dr. Jose Maria Furtado, Dr. Antonio Furtado, Minguel Vicente Furtado, Roque Furtado and Alesio Furtado but by mutual understanding and agreement and for the sake of convenience, the property was purchased in the name of the elder brother by name Jose Maria who represented all the brothers in the said Deed. It is further his case that the said properties purchased by Deed dated 18.08.1944 and 21.11.2032 drawn before Notaries Arfano Furtado and Julio de Souza and purchased for a price of Rs.650/- and Rs.600/-. The income of all these two properties were collected by the said Respondents/Plaintiffs and all his brothers. It is further their case that the Plaintiffs' father was living and it was his caretaker who was plucking and taking care of the fruits. It is further their contention that upon the death of their father, the said Respondents managed the said properties from 1948 till 1955 and during his absence, in the year 1956, they were managed by his brother Minguel Vicente Furtado. It is further their contention that since 1957, these properties are being SA-34-93-XOB-6-11 -8- managed by the original defendant no.1, who was entrusted by elder brother Dr. Jose Maria. It is further his case that to avoid disputes, the said Dr. Jose Maria had made a declaration stating therein that the said properties were out of the contribution of all his brothers and that the usufruct of the same should be enjoyed by all of them. Accordingly, the said Plaintiffs filed the suit for declaration that the two properties belonged to all the five brothers and that the share of late elder brother Dr. Jose Maria belongs to the Defendants as his heirs. 8. On being served with the summons, the only persons who filed their written statements were defendant nos. 4 and the Appellants, who in their written statements, have stated that the said two properties had been purchased only by Dr. Jose Maria with his own money and not by all the brothers. It is further their case that the income of the said two properties had been collected since purchase in the beginning by the said Dr. Jose Maria and the Defendant no.1 and during the last four to seven years by Defendant no.2. It is also their contention that the declaration given by Dr. Jose Maria is false and has no value. 9. After issues were framed and evidence was recorded, the learned Civil Judge, Senior Division, Margao, by Judgment and Decree dated 30.06.1990, partly decreed the suit in terms of prayer (1) and (2). Accordingly, the learned Judge declared that the two properties as identified with para one belonged in common to the Plaintiff nos. 1 and 2 and his six brothers. It was further declared that the Defendants as administrators of the suit property are liable to distribute the rents among the six brothers. SA-34-93-XOB-6-11 -9- 10. Being aggrieved by the said Judgment and Decree, an Appeal came to be preferred before the learned District Judge, being Regular Civil Appeal no. 36/1990 filed by the original Defendant no.5 as well as the Plaintiff nos. 1 and 2, which came to be disposed of by Judgment dated 04.11.1992. Aggrieved by the said Judgments, the above Appeal came to be filed and admitted on the aforesaid substantial questions of law. 11. Shri A. F. Diniz, learned Counsel appearing for the Appellants, has assailed the impugned Judgments on the ground that on bare reading of the declaration allegedly executed by the said Dr. Jose Maria, it clearly manifests that there is nothing therein to disclose that the property was agreed to be purchased in common. The learned Counsel has taken me through the declaration on record and minutely read the recitals therein and pointed out that there is nothing which could even remotely disclose that it was ever the intention of Dr. Jose Maria that the property was purchased in his name on behalf of all the brothers. Learned Counsel further pointed out that the Courts below have misconstrued the said declaration and has erroneously come to the conclusion that the property was purchased by all the brothers. Learned Counsel further pointed out that the said declaration was allegedly executed in Bombay and that it was not duly proved and, as such, the same could not be relied upon by the learned Judge whilst passing the impugned Judgments. Learned Counsel further pointed out that such declaration has no authenticity in law and, as such, has no relevance or any legal sanctity to establish that the property belonged also to all the Plaintiffs/Respondent nos. 1 and SA-34-93-XOB-6-11 -10- 2. Learned Counsel further pointed out that as the foundation of the claim is the said declaration which cannot be relied upon, the question of alleging that the suit property was purchased on behalf of all the brothers deserves to be rejected. Learned Counsel has taken me through the Judgments passed by the Courts below and pointed out that the Courts below have erroneously come to the conclusion that the property was purchased by all the brothers in the name of said Dr. Jose Maria. The learned Counsel further pointed out that as the suit was for declaration and the Decree would inhere in favour of other brothers who were not parties to the suit, the question of decreeing the suit without all the brothers being parties to the suit is misconceived. Learned Counsel further points out that in any event, the right to claim the properties has prescribed as the Appellants were in possession of the suit property for more than a period prescribed under the provision of the Portuguese Civil Code and such prescription operated against the Respondent nos. 1 and 2. Learned Counsel has taken me through the Judgments passed by both the Courts below and pointed out that the suit is bad for non joinder of necessary parties and, as such, the suit filed by the Respondent nos. 1 and 2 deserves to be dismissed. Learned Counsel further pointed out that the said findings arrived at by the Courts below cannot be said to be erroneous and, as such, the Appeal preferred by the Appellants deserves to be allowed and the Judgments passed by the Courts below, be accordingly quashed and set aside. 12. On the other hand, Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the Respondent nos. 1 and 2 have supported the Judgment passed by the Courts below. Learned Senior Counsel further pointed out that the findings SA-34-93-XOB-6-11 -11- of the Courts below on issue no. 7 are erroneous. Learned Senior Counsel pointed out that the claim of the Respondent nos. 1 and 2 was for the benefit of his brothers and the only person who was being affected by such claim were the Defendants in the suit who were already parties thereto. Learned Senior Counsel further pointed out that, in any event, there is no bar to restrict the Decree to the extent of the rights of the Plaintiffs/Respondent nos. 1 and 2 to the suit property. Learned Senior Counsel has further pointed out that after a long drawn litigation for nearly three decades, it is totally unjust to the Courts to come to the conclusion that the suit is barred for non joinder of necessary parties. Learned Senior Counsel further pointed out that in fact the said brothers had filed an application to be impleaded in the suit and the same came to be objected by the Appellants and, as such, the brothers were not made parties to the suit. The learned Senior Counsel further pointed out that an attempt was made by Respondent nos. 1 and 2 to convert the suit in a representation capacity which was not permitted. Learned Senior Counsel further pointed out that the question of dismissing the suit on such ground would be totally unjust. 13. With regard to the contention of Shri Diniz, learned Counsel appearing for the Appellants, Shri J. E. Coelho Pereira, learned Senior Counsel appearing for the Respondent nos. 1 and 2, has pointed out that the declaration executed by Dr. Jose Maria, has been duly proved. The said document has been taken on record and marked as an exhibit. There is no dispute about the execution of the document by Dr. Jose Maria raised by the Appellants. Apart from that, the declaration was executed before the competent authorities and even authenticated before the SA-34-93-XOB-6-11 -12- Foreign Embassy who were looking after the interest of the then Portuguese Government. Learned Senior Counsel further pointed out that the declarations are very much in accordance with law and have been duly proved. Learned Senior Counsel has further pointed out that an official act is always deemed to have been performed in accordance with law and it was incumbent upon the Appellants to establish the alleged illegality which they have failed to do. Learned Senior Counsel further pointed out that the declaration clearly accepts the position that the property was purchased for all the brothers including Respondent nos. 1 and 2 and, as such, the contention of Shri Diniz, learned Counsel appearing for the Appellants, that the document has been wrongly interpreted is misplaced. Learned Senior Counsel has taken me through the English translation of the document and pointed out that it clearly manifests that the property was purchased by all the brothers and the said Dr. Jose Maria has clearly admitted the said aspect. Learned Senior Counsel has pointed out that the additional substantial questions of law framed by this Court are to be answered against the Appellants and the additional substantial question of law framed by this Court with regard to issue no. 7 is to be answered in favour of Respondent nos. 1 and 2 herein. Learned Senior Counsel as such submits that the above Appeal desserves to be rejected. 14. Upon hearing the learned Counsel, I have carefully perused the records as well as the material produced by the parties in support of their rival contentions. The learned Trial Judge whilst passing the impugned Judgment dated 30.06.1990, on the basis of the declaration given by the said late Dr. Jose Maria to the effect that the properties were purchased out of the contribution of all the six SA-34-93-XOB-6-11 -13- brothers and was for the enjoyment of all of them namely the properties “Cholquecasana” and the property “Antaxinollem” declared, came to the conclusion that the declaration was executed by said Dr. Jose Maria out of his own will. The learned Judge has further found that the properties were in possession of the Respondent nos. 1 and 2 until they were handed over to the Defendant no.1. The learned Judge as such partly decreed the suit. 15. On perusal of the Judgment of the Lower Appellate Court, dated 04.11.1992, the learned Judge has found that the question of applying the provisions of Benami Transactions (Prohibition) Act, 1988, would not apply in the present case as in the present proceedings, the said ostensible purchaser namely Dr. Jose Maria himself had given a declaration to the effect that the property was purchased by all the brothers including the Respondent nos. 1 and 2. The learned Judge further found that the possession of the said property was accordingly with the Respondent nos. 1 and 2 at the relevant time. The learned Judge further found that there is no evidence in support of the contention of the Appellants to the effect that the said declaration was made by the Predecessor Dr. Jose Maria under the influence of Respondent no.1 and that undue influence was imposed for execution of such document. The learned Judge found that said Jose Maria was a Doctor and was an educated person. The learned Judge also found that he was working as a Chief Secretary at Nagar Havelo and at Silvassa. The learned Judge as such accepted the declaration executed by the said Dr. Jose Maria. The learned Judge also dealt with the claim of the Appellants on the ground of prescription at para 15 of the impugned Judgment. The learned Judge further found that when the SA-34-93-XOB-6-11 -14- possessor admits that he is not the owner, he loses the right of invoking prescription and fresh period of prescription will be to be counted from the said date to make such claim admissible. The learned Judge took note of the fact that the declaration made by Dr. Jose Maria in the year 1960 deprived them of their right to invoke prescription as the prescription had interrupted. The learned Judge further found that in case from the said date they had possession of the suit property for a period of thirty years from the date of such possession, the same should have to be re-started for the purpose of prescription. The learned Judge as such rejected the claim of the Appellants for prescription. Dealing with the contention of the Appellants to the effect that the said declaration has no judicial value, the learned Judge found the same had no merit and, as such, the declaration narratted only the circumstances in which the said transaction had taken place and, consequently, the learned Judge dismissed the Appeals filed by the Appellants. 16. Before dealing with the contention with regard to the claim of the Appellants of prescription, I will firstly proceed to deal with the contention of Shri Diniz, learned Counsel appearing for the Appellants, with regard to the interpretation of the declaration executed by said Dr. Jose Maria. On perusal of the said declaration, I find that he has categorically stated therein that he has been administering the estate of his deceased father Roque Joao Pedro Furtado since the beginning of the Inventory Proceedings till March, 1955 and that he had received income accrued from the said properties. He has further stated therein that this administration was being done by him on behalf of Respondent no.1, who was the head of the family. He has further declared that the property known as SA-34-93-XOB-6-11 -15- “Cholquecasana” described in the Land Registration Office under no. 16704 and the property known as “Antaxinollem” were purchased from Elvina Joao Furtado and his wife and they were acquired in his name with the money contributed by his brothers and for this reason, the income of the properties is used and that the properties should not be alienated without mutual consent and settlement of the accounts and it was a transaction of mutual trust and a gentleman's debt. He has further stated in the said declaration that the income of the said properties acquired in common shall be used in common by all the brothers. The said document came to be executed before the Presidency Magistrate of Greater Bombay, the signature of the said Presidency Magistrate was identified by the then Under Secretary, Government of Bombay and duly authenticated and entrusted before the then Embassy of Brazil, who were looking after the interest of the then Portuguese Government. A plain reading of the said document clearly shows that the said Dr. Jose Maria had clearly confirmed the transaction and declared that the property was acquired in common by all the brothers. The contention of Shri Diniz, learned Counsel appearing for the Appellants to the effect that there is no declaration to that effect cannot be accepted. The contention of Shri Diniz, learned Counsel appearing for the Appellants that it was merely a debt, can also not be accepted nor any such foundation was laid by the Appellants in the pleadings before the learned Trial Judge. The interpretation of the document is plain and clear and the Courts below were justified to come to the conclusion that the declaration is very clear to the effect that the property was purchased in common by all the brothers. The contention of Shri Diniz, learned Counsel appearing for the Appellants to the effect that the document has not been duly executed also cannot be accepted. All the SA-34-93-XOB-6-11 -16- formalities in law have been duly complied with. The signature of the said Dr. Jose Maria on the document has not been disputed by the Appellants. Apart from that, the Courts below have concurrently found that there was no evidence adduced by the Appellants to establish their contention that the document was executed by undue influence on the part of the original Respondent no.1. These concurrent findings of facts cannot be reappreciated by this Court in the present Second Appeal. The Apex Court in the Judgment reported in (2009) 12 S.C.C. 95 in the case of Bellachi (Dead) By LRS. vs. Pakeera, has held at paras 10, 12, 13, 14, and 15 thus : 10. The jurisdiction of the High Court in terms of Section 100 of the Code of Civil Procedure is limited. It can interfere with the concurrent findings of two courts if any substantial question of law arises for its consideration. Whether the respondent despite the fact that he was brother of the appellant was in a dominating position is essentially a question of fact. Per se