-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 266 OF 2004 1. Shri Antonio Agostinho Gomindes resident of House No.169, Ward No.III (3), Housing Board Road, Gomindes, Vivenda, Next to Playground Gogol, Margao Goa. 2. Smt. Fatima Gomindes resident of House No.1189, Ward No.III (3), Housing Board Road, Gomindes, Vivenda, Next to Playground Gogol, Margao Goa. 3. Smt. Elvira Gomindes Estiberio resident of House No.11606, Ward No.IV(15) Part, Raymond Marlem Hill, Margao, Goa. 4. Shri Herert Estibeiro, resident of House No.1606, Ward No.IV(15), Raymond Marlem Hill, Margao, Goa. 5. Kum. Saphira Estiberio, represented by power of attorney Petitioner No.4 resident of House No.1606, Ward No.IV (15), Raymond Marlem Hill, Margao, Goa. 6. Shri Lourdes Gregorio Gomindes resident of House No.235, Daguale, Alto , Maina Curtorim, Salcete, Goa 7. Smt. Maria Piedade Milagres Fernandes, wife of said Lourdes Gomindes, resident of House No.235, Daguale, Alto , Maina Curtorim, Salcete, Goa …... Petitioners V e r s u s 1. Shri Milagres Santana Gomindes, aged about 71 years, landowner, -2- resident of House No.234, Daguale, Alto , Maina Curtorim, 2. Smt. Letinha Rebelo E Gomindes, wife of the said Milagres Santana Gomindes, aged about 61 years, resident of House No.234, Daguale, Alto , Maina Curtorim, Salcete, Goa …... Respondents Mr. M. S. Usgaonkar, Senior Advocate with Mr. Sudesh Usgaonkar and Ms. R. Pereira, Advocate for the Petitioners. Mr. M. P. Almeida, Advocate for the Respondents. CORAM: R. M. SAVANT, J. DATE : 7 th December, 2009. ORAL JUDGMENT By the above Petition filed under Article 227 of the Constitution of India, the Petitioners take exception to the Order dated 25.03.2003 passed by the learned District Judge, Margao, by which Order, the Appeal filed by he Petitioners being Misc. Civil Appeal No. 44/2003, came to be allowed and the Judgment and Order passed by the learned Civil Judge, Senior Division, Margao, dated 25.03.2003 in Inventory Proceedings no. 146/92/C came to be set aside. 2. Some of the facts which are necessary to be cited for the adjudication of the present Petition are stated thus : The present Inventory Proceedings have their genesis in the Inventory Proceedings bearing no. 221/1940. The said Inventory Proceedings were commenced on the death of one Agostinho Gomindes, In -3- the said Inventory Proceedings, an auction was held on 26.08.1940 in respect of two assets which were enlisted. Maria, the wife of said Agostinho Gomindes, took item no.1 and item no.2 which was enlisted in the said proceedings was auctioned in equal shares amongst the three children. Thereafter, the allotment was made absolute by Order dated 27.09.1940. It appears that in 1942, the said Maria Gomindes got married in second nuptials with one Roque Miguel Gomindes and they had two children. The said Roque expired in the year 1958 and no Inventory Proceedings took place on his death. It appears that the said Maria died in the year 1992 upon which, an application was made by Lourdes Gomindes on 29.09.1992, inter alia stating that the charge of the Head of the Family should be given to his elder brother Milagres Gomindes. The said Milagres was appointed as the Cabeca de Casal by the Court. Subsequently, the said Milagres by a statement made on oath, submitted the list of heirs and undertook to produce a list of assets within thirty days. On 22.06.1994, the said Milagres Gomindes made an application under Article 1430 of the Portuguese Civil Code stating that the said application be placed on record and to direct that the prior Inventory i.e. 221/1940 should proceed further incorporating the present Inventory in the prior Inventory and by serving notices to the interested parties mentioned in the statement of the Head of the Family recorded at present. On the said application, an endorsement was made on behalf of the Petitioners herein that the prior Inventory in 221/1940 is already attached in this file and that the Head of the Family has to take steps to pursue the proceedings. The said Inventory Proceedings came to be numbered as 146/1992. Thus, as it can be -4- seen from the said endorsement, the Petitioners had accepted the position that the said Inventory Proceedings no. 221/1940 were required to be attached to the present Inventory Proceedings and further consented to the said Head of the Family to take steps to pursue the proceedings. The said Milagres, who was appointed as Cabeca de Casal, submitted the list of assets on 12.07.1995. However, grievance was made by the said Lourdes Gomindes on 11.03.1996 that Milagres had not submitted the list of assets properly and, therefore, he be directed to furnish the proper list of assets. 3. While the said Inventory Proceedings no. 146/92/C were pending, the said Milagres Gomindes filed a suit being Regular Civil Suit no. 262/96 in the Civil Court at Margao. The said suit was filed by the said Milagres and his wife for declaration and permanent injunction in respect of the suit properties. The declaration sought was in respect of the Gift Deeds , the Partition Deed and the Sale Deed dated 17.03.1981 executed by Maria Gomindes. The sum and substance of the case of the said Milagres in the suit was that the disposal made by the said Maria was beyond what she could legally dispose of in terms of the law applicable in the State of Goa. The learned Civil Judge, Senior Division, on the basis of the pleadings, framed the following issues : I S S U E S 1. Whether the plaintiffs prove that allotments in Inventario No. 221/1940 were made definite by Order dated 7.9.40 ? 2. Whether the plaintiffs prove that Maria Albertina Edwiges da Piedade Fernandes who was married in first -5- nuptials to Agostinho Gomindes and in the second nuptials to Roque Gomindes could only take to the second marriage half of the assets belonging to her ? 3. Whether the plaintiffs prove that the said half which is reserved without communication is set aside to be distributed amongst her children both of the first marriage as well as of the second marriage ? 4. Whether the plaintiffs prove that Maria Albertina cannot communicate with her husband of second nuptials more than ½ of 3/40 of property Daguale ? 5. Whether the plaintiffs prove that partition deed dt. 18.11.1972 should have been preceded by Inventario or allotments of assets of the couple ? 6. Whether the plaintiffs prove that upon the ascertainment of the said shares of what is communicated and not communicated had to be done through the inventario proceedings since the right were to the totality of the inheritance and not specie ? 7. Whether the plaintiffs prove that the deed of partition dated 18.11.1972, the deed of gift dated 6.1.1983, the deed of sale dated 17.3.1981 and the preliminary decree pronounced in the Special Civil Suit no. 121//B are null and void and consequently the entire subsequent proceedings of Special Civil Suit /B and therefore ought to be so declared ? 8. Whether the plaintiffs prove that property Daguale registered under No. 4-979, enrolled in matriz under no. 135 and surveyed under no. 463/11 is common property between plaintiffs and defendants ? 9. Whether the defendants prove that this suit is time barred ? 10. Whether the defendants prove that the plaintiffs intervened in Special Civil Suit No. 121/1983 and they were represented by their advocate ? 11. What relief ? What order ? -6- The learned Civil Judge Senior Division, answered the issues as follows : Issue no. 1 : Affirmative Issue no. 2 : Affirmative Issue no. 3 : Affirmative, but only after the death of Maria Albertina. Issue no. 4 : Affirmative Issue no. 5 : Negative Issue no. 6 : Negative Issue no. 7 : Negative Issue no. 8 : Negative Issue no. 9 : Affirmative Issue no. 10 : Affirmative Issue no. 11 : As per order. 4. The learned Civil Judge, Senior Division, whilst recording his findings, went threadbare into the disposable content of the assets available with the said Maria and after so recording his finding, has upheld the disposition made by said Maria by way of Gift Deed, Partition Deed, Sale Deed and dismissed the said suit by Judgment and Order dated 25.03.2003. It would be significant to note that the said Milagres did not carry the matter higher and, therefore, the Judgment and Decree passed in the said suit as regards the dispositions made by the said Maria have become final and binding. -7- 5. After the said suit was dismissed by the learned Civil Judge, Senior Division, Margao, Lourdes Gomindes, who is the Petitioner no.6 herein, made an application stating that the Head of the Family, Milagres, does not take interest in continuing his function as Cabeca de Casal nor does he take any steps required in that direction and said Lourdes, therefore, sought removal of Milagres and his own appointment as the Head of the Family. The said Lourdes thereafter filed an application for auction of which a notice was given to the Respondent no.1-Milagres, the auction was fixed on 11.04.2002. However, prior to the fixing of the said auction, the matter had once again gone to the Civil Court in view of the application made by the said Lourdes for removal of the said Milagres as the Head of the Family. In the said application, the learned Comarca Judge of Salcete, held that the only property which remains for the present Inventario is plot no. C-1. The learned Judge considered the documents which were placed before him including the Judgment in the said Special Civil Suit no. 262/96, the inspection reports of Shri Bhende regarding the division and demarcation of plots under item no.1 of the original Inventario as also the Order passed in Special Civil Suit no. 121/1983. In the said application also, the question of disposable content of the assets of the said Maria was dealt with and the learned Comarca Judge has recorded a finding as follows : “... However, during her life time no one can forbid her from dealing with or disposing off whatever corresponds to half of what belongs to her from the 1st marriage, besides whatever belongs to her in the -8- estate of her husband of 2nd marriage.” The learned Judge has thereafter concluded that the list of assets was to consider of only one plot no. C-1 as no Deed executed by the said Maria was declared null and void. The said Order was passed on 05.11.2001 which also significantly was not challenged by the Respondent no.1 herein and has, therefore, become final and binding in so far as the list of assets in the present inventory is concerned. 6. On the day when the auction was fixed i.e. 11.04.2002, an application was moved by Milagres to postpone the auction on the ground of his sickness. It appears that the roznama of the said date discloses that the learned Advocate appearing for the Respondent no.1 herein, had no objection for the auction and made a statement that he would participate in the auction should the auction be conducted reserving his right as regards illegality of the procedure. Thereafter, the Respondent no.1, Milagres, filed an application Exhibit 24, stating that the Inventory Proceedings file nos. 146/92/C and 173/99/M be declared as null and void and consequently non-existent and the entire procedure has to be followed in the Inventory Proceedings no. 221/1940. In the said application, the Petitioners herein filed their reply opposing the grant of any relief which was sought in the said application. The Petitioners' contended that though two different numbers were given namely 146/1992 and 173/1999, the proceedings are one Inventario and were in continuation of the earlier proceedings being 221/1940 and were only re- numbered. The Petitioners further contended that there were no three -9- different Inventario's and that the proceedings were in fact in the original inventory though having three different numbers. The Petitioners further contended that the plot C-1 being the only asset available for the inventario has already achieved finality in view of the Order dated 05.11.2001. The said application was considered by the Trial Court i.e. the learned Civil Judge, Senior Division, Margao, and by Order dated 25.03.2003, the said application, exhibit -24, came to be dismissed. The Trial Court whilst dismissing the said application, inter alia, recorded a finding from the material which is reflected in Para 15 of the Order of the Trial Court that the present Inventory Proceedings are the continuation of the prior Inventory Proceedings and that the procedure adopted could not be said to be contrary to law. The Trial Court also observed that the said application filed by the Respondent no.1 was an abuse of the process on the ground that the prior Inventario no. 221/1940 is already attached in this file which was got from the Archives in the year 1992 and, therefore, the Head of the Family has to take steps to continue the present proceedings. 7. Being aggrieved by the said Order dated 25.03.2003, passed by the learned Civil Judge, Senior Division, Margao, the Respondent no.1 filed an Appeal which came to be numbered as Misc. Civil Appeal no. 44/2003. As indicated above, the said Appeal came to be allowed by the impugned Order dated 28.04.2004 and the Order passed by the Trial Court came to be set aside and the entire files under Inventory Proceedings no. 146/92/C and Inventory Proceedings no. 173/99/M were declared as null and void and non- -10- existent. A direction was further issued that the proceedings arising in application dated 21.01.1992 at exhibit 1, filed in Inventory Proceedings no. 146/92, has to be taken up in Inventory Proceedings no. 221/1940 and the entire procedure as laid down by Article 1430 has to take place in the same file of Inventory Proceedings no. 221/1940. The Appellate Court whilst allowing the said Appeal, has relied upon Article 1432 of the Portuguese Civil Procedure Code and placing reliance on the said Article, has held that the procedure in respect of the present Inventory was totally irregular and contrary to the said Articles of 1432 under which no fresh description was to be made nor any appraisal of item no. 1 which had been done in the Inventory of 1940. In so far as the efficacy of the Judgment rendered by the Civil Court in the said Special Civil Suit no. 262/1996, the Appellate Court held that the same will have to be considered in the Inventory Proceedings no. 221/1940 itself. 8. A perusal of the finding of the Appellate Court disclosed that the Appellate Court had found the procedure adopted in the present Inventory Proceedings to be irregular and contrary to the provisions of Article 1432 of the Portuguese Civil Code. However, the Appellate Court has in the operative part of the Order declared the said proceedings as null and void. As indicated above, it is this Order of the Appellate Court which is impugned in the present Petition. 9. It is held by a Judgment of a learned Single Judge of this Court in AIR 1984 Bom 295 in the matter of Zacarias Durate Domingos Pereira -11- vs. Camilo Inacio Evaristo Pereira, that the provisions of the Portuguese Civil Code would be applicable to the Inventory Proceedings as the Inventory Proceedings fall outside the provisions of the Indian Civil Procedure Code. The said case was as regards the execution of an Order passed in an Inventory Proceedings. In the said context, the learned Judge held that whenever any party is entitled to allotment in a Inventory Proceeding, the execution being a continuation of the same proceeding, such an execution shall be governed under the Portuguese Civil Code itself even though such a procedure is outside the Chapter XVII. Therefore, as regards the applicability of the Portuguese Civil Procedure Code, there cannot be any dispute. It would be relevant, therefore, to reproduce Articles 1430, 1431, 1432, 1789 and 1790, as the Appellate Court has sought to rely upon Article 1432 whilst allowing the Appeal filed by the Respondent no.1 herein. Article 1430 (New Inventory) Where after the partition is effected there is death of any party who has not left properties other than those which were adjudicated to it, the inventory which is to take place shall be held in the same file, and the oath of office of the administrator will be given to one on whom it devolves, and by following the prescribed procedure. Article 1431 (Inventory of the surviving spouse) Where the inventory of the surviving spouse is to take place -12- in the court where inventory on the death of the predeceased spouse had taken place, the steps necessary for the second partition shall be recorded in the file of the first partition. Where there are properties to be partitioned other than those allotted to the deceased in the previous inventory, such properties shall be described with the serial numbers which are in continuation of the last item of the first inventory. Article 1432 (Availing of appraisal and of the description made in other inventory) The properties which have been appraised in the other inventory shall not be subjected to fresh appraisal except where there are serious reasons to believe that their value has changed. In case of the change of the value of currency, such change shall be taken into consideration. Besides the appraisal, the description made in the previous inventory shall be availed of and it shall be reproduced if the file is different, and not if the file is the same. Article 1789 (Reduction of in officious gifts and dispositions) Where the testator has gifted or disposed of more properties than he is permitted to dispose, the forced heirs may apply, at the time of the opening of the inheritance, that the gift or disposition, be reduced, as provided in -13- Articles 1493 and 1494. Article 1790 (Calculation of disposable portion) The calculation of the disposable portion, for the purpose of reduction, shall be made in the following manner : Paragraph 1: The value of all the properties left by the estate-leaver shall be added together after deducting the debts of the inheritance; the value of the properties that may have been gifted by the deceased shall be added to the balance amount and the disposable portion shall be calculated with relation to this total amount. Paragraph 2: The value of the properties gifted shall be that which they had on the date of the opening of the inheritance and the same date shall be considered for the computation of the extent of the disposable portion. Paragraph 3: Where the thing gifted has perished without the donee having directly contributed thereto, the same shall not be included in the inheritance for the purpose of calculating the legitime, save stipulation to the contrary. 10. In the conspectus of the facts as narrated above, it would also be relevant to refer to Articles 202, 203 and 205 of the Portuguese Civil Procedure Code and Article 1436 of the Portuguese Civil Procedure Code : -14- Article 202 The Court may take cognizance ex-officio of the nullities mentioned in the articles 193, 194, 199 and 200 unless they are deemed as cured. Of the other nullities the Court may take cognizance only upon the objection raised by the interested parties except in special cases where ex-officio cognizance is permitted. Article 203 The party who gives cause to nullity or who failed to raise objection expressly or tacitly is not entitled to invoke the ground of nullity. Article 205 In respect of the other nullities, in case the party is present personally or through agent at the time when the nullity was committed, such party may invoke the same before the act is not completed, where the party is not present, the time limit to raise the same counts from the date on which the party, after the nullity being committed, was given notice to do any procedural step or took part in the same. When the irregularity is raised or noticed during a time when the judge is presiding he shall take necessary steps so that acts are performed in accordance with the law. 11. In the context of the said Articles 1430 to 1432, it would have to be seen whether there has been a departure from the procedure which has been prescribed therein and if the procedure is held to be irregular as found by -15- the Appellate Court whether the Petitioners can be made to suffer by directing the proceedings which had reached the stage of the auction being held, to be restarted denovo. 12. On behalf of the Petitioners, it is the submission of Shri Usgaonkar, learned Senior Counsel, that the application filed by the said Lourdes specifically refer to Article 1430 and on which application, an endorsement was made on behalf of the Petitioners to the effect that the said application should be tagged along with the original Inventory Proceedings No. 221/1940 and that the Respondent no.1 should be appointed as Head of the Family to pursue the said Inventory Proceedings. The learned Counsel, therefore, submitted that the application made was in terms of the procedure prescribed to which the Petitioners had acceded to. The learned Senior Counsel further submitted that the fact that the Court chose to number it as 146/1992 or 173/1999, cannot be a factor which can be held against the Petitioners to annul all that has been done in the said Inventory Proceedings from the year 1992 till the application was filed by the Respondent no.1 in the year 2004. Relying upon the application filed by the Respondent no.1 herein, for declaring the said proceedings as null and void, submitted that the said application was bereft of any particulars as to what was the illegality in respect of the procedure or as regards the illegality in respect of the assets which have been listed. The learned Senior Counsel further submitted that in view of the Decree which has been passed by the Civil Court in the said Special Civil Suit no. 262/1996, it is not not open for the Respondent no.1 and 2 to raise -16- any issue as regards the disposable content of the assets in so far as the said Maria is concerned. In so far as the asset Plot C-1 is concerned, the learned Senior Counsel submitted that the Order dated 05.11.2001 having gone unchallenged, has achieved finality in so far as the asset available in the said Inventory Proceedings are concerned. The learned Senior Counsel further submitted that in view of Article 1436, the findings of the Civil Court in said suit no. 262/1996, as regards the disposable content available with the said Maria, would be applicable in the context of the said Article. The learned Senior Counsel, therefore, submitted that the Appellate Court has erred in setting aside the Order passed by the Trial Court dismissing the said exhibit 24 filed by the Respondent no.1 herein. 13. Per contra, it is submitted by the learned Counsel, Shri Almeida, for the Respondent no.1, i.e. the Cabeca de Casal, that though the Decree passed in the Civil Suit in Special Civil Suit no. 262/1996, as against the Respondent no.1, it would be still open for the Respondent no.1 to raise an issue as regards the disposable content of the property available with the said Maria. For the said purpose, he relied upon Article 1789 and 1790. The said Articles, according to him, lay down the manner in which the disposable content of the property is to be calculated qua an inventory proceeding. The learned Counsel further submitted that in terms of Article 1430, the application filed in respect of the present Inventory Proceedings should have been in the original Inventory Proceedings no. 221/1940, however, the Court having given separate numbers being no. 146/1992 and 173/1999, there is a total go by to -17- the procedure prescribed by the said Articles. The learned Counsel