1 IN THE HIGH COURT OF BOMBAY AT GOA PANAJI FIRST APPEAL NO. 218/2004 1. Mrs. Luzia Natividade C.F. Velho e Gomes (deleted) 2. Mr. Agnelo Gomes. 3. Mrs. Flory Gomes, Both r/o. Garden View, Ground Floor, Almeida Road, Bandra Bombay. ............ Appellants. V/s. 1. Mrs. Ana Berta Dionisia Fernandes e Gomes (deceased) 2. Mr. John Gomes, 3. Mrs. Perpetua Gomes, All r/o. Dando, Nerul, Bardez, Goa. 4. Fr. Jose Pedro Gomes, r/o. Dando, Nerul, Bardez, Goa. 5. Mrs. Veneziana D'Souza, 6. Mr. Seby D'Souza, 7. Mr. Alberto Gomes, All r/o. of House No.15, C-13, Modern Co-operative Housing Society, Miramar, Panaji, Goa. ....... Respondents. Mr. Nigel da Costa Frias, Advocate for respondents no.2 and 3. 2 Mr. S. D. Lotlikar, Senior Advocate with Ms. Sourabhi Vaidya for respondent No.2. CORAM : B.P. DHARMADHIKARI & U.D. SALVI , JJ. Date of reserving the Judgment : 10th July, 2009. Date of pronouncing the Judgment : 18th July, 2009. J U D G M E N T : (Per B.P. DHARMADHIKARI, J.) 1. By this appeal, the original defendants in Special Civil Suit No.67/93/A are challenging the Judgment and Decree dated 30.4.2004 delivered by Civil Judge, Sr. Division, Panaji thereby partly decreeing the suit of the respondents and declaring that Inventory Proceedings No.18/1969 taken from the stage subsequent to declaration of Cabeca de Casal i.e. Administrator dated 24.11.1969 to be null and void and thereby holding that the plaintiffs and the defendants are co-owners of the suit properties. The defendants No.1 to 7 in said suit have been restrained by permanent injunction from selling/disposing, alienating, encumbering, mortgaging and developing the suit properties. The 3 original defendants 1 to 3 are the appellants before this Court, defendants No.5, 6 and 7 were the the appellants, but later on they have been transposed as respondents No.5 to 7. They have chosen not to contest these proceedings and they filed an application accordingly. Original plaintiffs are respondents No.1 to 3 before this Court. Original plaintiff No.1 Mrs. Ana expired during pendency of suit. 2. Relationship between the parties is not in dispute. One Francisco who expired on 18.10.1939 was their father and Veneziana who expired on 9.1.1945 was their mother. The Couple had 5 sons, viz. (i) Rev. Jose Militao Honorato Gomes (Priest), (ii) Higinio Gomes, unmarried, (iii) Eugenio Gomes married to plaintiff No.1, (iv) Herculano Gomes, married to defendant No.1, and (v) Justiniano Gomes, unmarried. Vide Gift dated 2.1.1936, Francisco and Veneziana gifted ½ share in the first suit property to their son Rev. Jose Militao Honorato Gomes. After death of Francisco, second property was partitioned by Deed of Declaration and Partition dated 5.7.1941 between Veneziana and her 5 sons and in that property, each of sons got 1/5th share. Three sons out of total 5 died bachelors. Since 3 brothers of Eugenio and Herculano died bachelors, their shares were 4 inherited by Eugenio and Herculano, who became owners of half share each in the second suit property. Plaintiff No.1 was wife of Eugenio Gomes and plaintiff no.2 and defendant No.8 in the said suit are their sons, while plaintiff No.3 is the wife of plaintiff No.2. Defendant No.1 happened to be the wife of Herculano Gomes and defendants No.2 to 7 are sons and daughters-in-law of said Herculano. First suit property is described in Land Registration Office under No. 7596 and surveyed under Survey no.51/1, 6/1 and 60/3 of Village Curca admeasuring 22,700 sq. metres. The second suit property is described in the Land Registration Office under No.1846 and surveyed under Survey No. 70/13 of Village Curca. It admeasures 1325 sq. metres with residential house situated therein. The properties initially stood inscribed in the name of Francisco and Veneziana. 3. The plaintiffs filed suit for declaration, permanent injunction, partition and consequential reliefs. They contended that the properties left behind and described in para 1 of their plaint jointly belonged to the plaintiffs and the defendants and they were having ½ share each. They pleaded that they got knowledge of Inventory Proceedings No.18/69 only after the defendants proceeded to sell some 5 part of this property and the buyer proposing to purchase that part published an advertisement in the news paper. They stated that thereafter, an objection was raised and in pursuance of said objections, they learnt about the inventory proceedings sometime in December, 1992. The suit was opposed by the present appellants who contended that the inventory proceedings about the property left behind by Francisco and Veneziana were initiated in 1969. They argued that Eugenio expired on 4.11.1967 and other son Rev. Fr. Jose Militao expired on 10.4.1968. Thereafter on 25.9.1969, husband of defendant No.1 late Herculano initiated inventory proceedings which came to be registered as 18/1969. The plaintiffs were duly represented by Eugenio Gomes and the properties were divided/partitioned in equal shares in all representations. Husband of defendant No.1 was highest bidder and highest bid was for an amount of Rs.7,227/- and share of each interested person was Rs.2,409/-. Her husband paid owelty money (tornas) of Rs.2409/- each to Eugenio Gomes and Justiniano Gomes and also paid stamp duty of Rs.360/-. The partition and allotment was ultimately confirmed vide Judgment and Decree dated 16.9.1970. 4. In view of these defences, the trial Court framed issues at 6 Exhibit-5 and after hearing the parties decided those issues in favour of the plaintiff and against the defendants i.e. present appellants. It held that inventory proceedings were conducted fraudulently and individual notice as required by Article 1371 of Portuguese Civil Code was not served upon Eugenio or his wife plaintiff No.1. It found that they did not authorise Advocate Amaro Rebello to represent them in the said inventory proceedings and Advocate Amaro Rebello acted on behalf of the Administrator and all interested parties. It found that Herculano offered amount of Re. 1/- only more in auction and that was accepted by the trial Court and he became the owner by paying the said amount as owelty money. It found that market price then taken into account was not as in 1969 but then as prevailing in 1940 at the time of death of Francisco. In view of these findings, it decreed the suit as mentioned above. 5. In this backdrop, we have heard Advocate Nigel Costa Frias for the appellant/original defendants and Senior Advocate Shri Lotlikar with Ms. Vaidya for the original plaintiffs. 6. The Counsel for the appellants has contended that inventory 7 proceedings are conducted openly in the Court of law and the stand of the plaintiffs that they had no notice thereof is, therefore, incorrect and by way after thought. It is argued that in 1970 when the inventory proceedings were concluded, the value of the property was very less and because of subsequent phenomenal rise in the said value the plaintiffs filed false suit. The other contention that plaintiff No.1 Ana Bertha as also her deceased husband Eugenio had engaged Advocate Amaro Rebello to represent them in the inventory proceedings and accordingly the Advocate effectively discharged his obligation as per wish and desire of the parties. It is stated that the burden to show that Advocate Amaro Rebello was not authorised lay upon the plaintiffs and the plaintiffs failed to discharge it. It is pointed out from the evidence of the plaintiffs that they could not prove the signatures on Wakalatnama signed in favour of Advocate Amaro Rebello to be not of either Eugenio or Ana Bertha. It is further stated that if there was any grievance about the signatures, admitted signatures of the parties were available on record and Court below could have itself compared those signatures or then forwarded the signatures to handwriting experts for verification. As the plaintiffs approached the trial Court with case of fraud, burden was upon them to examine necessary witnesses, including 8 Advocate Rebello. It stated that after inventory proceedings, the property continued in possession of the appellants to the exclusion of the plaintiffs and the suit filed by them on 10.3.1993 was, therefore, hopelessly barred by limitation. It is argued that 1992 story of publication of public notice is an eyewash created only to bring the suit within limitation. It is further stated that in the suit as initially filed, there was no serious challenge to inventory proceedings. Our attention has been invited to the evidence of plaintiff No.2 John Gomes and 2 witnesses examined by plaintiffs to show how their evidence is not trustworthy and appears to be a got-up one. The documents on record are also shown to us along with records of inventory proceedings, particularly the Wakalatnama on record of inventory proceedings. Learned Counsel, therefore, contends that the entire approach of the trial Court in this respect is perverse and unsustainable. 7. In his reply arguments, Senior Advocate Shri Lotlikar has stated that the disposable portion gifted by Francisco and Veneziana to Prist son as also second property which was gifted to 5 sons were included as properties of deceased in the inventory proceedings initiated in 1969. He states that those inventory proceedings which 9 really ought to have been in respect of ½ portion of first property were conducted for the property which did not belong to the deceased. He points out from the record of inventory proceedings and from the evidence on record that Advocate Rebello not only represented the Administrator but also all interested parties and no individual service as contemplated by the above mentioned provisions of Article 1371 or 1372 was even effected on any of the interested parties at any stage of inventory proceedings. He states that plaint allegations were very specific and plaintiff No.2 specifically deposed that his mother did not sign any Wakalatnama in favour of Advocate Rebello. According to him, Wakalatnama produced in the inventory proceedings does not bear any case number and the reasons given by the trial Court for ignoring it are more than sufficient. He further points out that Eugenio expired in 1978 and hence, he was not available for any comments when in 1992 the controversy cropped up. According to him, in the said inventory proceedings, Herculano managed to purchase the property at throw away price by offering Re.1/- more over the old market value prevailing in 1941. He further points out that in the branch of Herculano itself there has been partition and second property has fallen to the share of the appellants. Original defendant No.1 has 10 expired and defendants 4, 5 and 7 have withdrawn from the litigation. He invites out attention to application dated 10.6.2008 filed by defendants No.4, 5 and 6 in these proceedings on 12.6.2008 and in this respect he states that the challenge to the impugned Judgment, therefore, in so far as first suit property is concerned is rendered infructuous and the present respondents have right in the second property. He invites attention to Exhibit PW.1/11 i.e. Deed of Partition, Exhibit PW.1/13 i.e. Deed of Gift and in that background has invited attention to the impugned Judgment and Decree. He relies upon Articles 1371, 1372 and other provisions to urge that considering the nature of proceedings, Civil Court insisted for personal service on all interested parties at each stage. The Wakalatnama does not authorise Advocate Rebello to receive notice of inventory proceedings and that notice ought to have been served on the party in person. He states that said Wakalatnama is dated 3.11.1969 i.e. of a date prior to inventory Court ordering notice to the parties. He further points out that stamp on said Wakalatnama is not cancelled and Wakalatnama also does not possess any case number. PW.1 John Gomes was minor in 1969 and after controversy cropped up, he got information about it from his mother Ana Bertha who expired in 1995. 11 8. The initial stand of present appellants in their written statement was that Eugenio represented himself and other plaintiffs, but then later on stand was taken that he was represented by Advocate Rebello. He states that the property always remained in joint user and occupation and the plaintiffs were always recognized as owner and there was no outster. Even if it is presumed that the defendants were allotted any property in the inventory proceedings, the said allotment has not been registered and there was no public notice. The defendants did not enter witness box and, in these circumstances, burden was upon them to examine Advocate Rebello. He, therefore, prayed for dismissal of first appeal. 9. In his reply arguments, Advocate Costa Frias has stated that in view of Article 1415, principles of collation are attracted and all properties which are gifted or partitioned are required to be disclosed in the inventory. He further states because of Articles 1415, read with Article 2110 adjustment of shares is required to be undertaken at the time of allotment of shares. He further states that ½ of the suit property was given to Priest brother Rev. Jose Militao Gomes 12 and as he died bachelor, the inventory in relation to that property was also essential as parties to inventory proceedings were his legal heirs too. He had also share in the second property along with his two other brothers, who also expired bachelors. He states that the trial Court has not recorded any clear-cut findings about the propriety or otherwise of inclusion of property in the inventory proceedings and there is no prayer to exclude it. He states that the suit was filed by Ana Bertha along with PW.1 and she never complained of any misuse of Wakalatnama. 10. After hearing parties, we find that following question arises for determination before us : Whether decision in Inventory Proceedings No.18/1969 is binding on the plaintiff ? We record our answer to the same as follows : 11. Article 1371 in clear terms requires notice to be served on parties and thus personal service is must. Here the facts demonstrate that it is Advocate Rebello who filed the application for initiation of inventory proceedings on 24/9/1969 and after the Court issued notice to 13 the parties, he accepted notice on behalf of interested parties, including the plaintiffs. The trial court has found that in additional written statement, appellants contended that vakalatnama filed by Advocate A. Rebello was dated 18/9/1969 i.e of period prior to even filing of the matter. The vakalatnama on record of those proceedings carries a typed date of “3/11/1969” and it carries purportedly the signatures of Eugenio & Ana Bertha. We have perused said vakalatnama and We find that it does not mention the capacity in which it was signed by these two persons. On 3/11/1969 the inventory proceedings very well carried a distinctive registration number and even that number does not find any place on it. The vakalatnama therefore could have been used for any case or proceedings by adv. A. Rebello. After recording statement of administrator i.e. “Cabeca-da-casal” through adv. Rebello inventory court directed notices to be issued to interested parties. The records show that Advocate Rebello accepted that notice for Eugenio & Ana on 25/11/1969 and filed above vakalatnama already with him. Thus, absence of personal service of Eugenio or Ana Bertha is accepted. The defendants have tried to contend that plea of absence of personal service was never raised. However, this argument is incorrect because, in the plaint as filed, the amended para 5 B clearly avers that such notice was 14 not served on plaintiffs or late Eugenio. It is further averred that they were never aware of the orders passed in inventory proceedings. It is also averred that neither Eugenio nor plaintiff No.1 Ana Bertha engaged any Advocate for the said proceedings and signatures on Wakalatnama filed by Advocate Rebello are not of Eugenio or Ana. It is specifically averred that they did not engage Advocate Rebello for the said inventory proceedings. They have pleaded that Advocate Rebello was close relative (cousin) of wife of late Herculano Gomes i.e. defendant No.1. They have also stated that neither Eugenio nor Ana received any money from the alleged partition or alleged auction and the proceedings have been conducted fraudulently. Evidence of plaintiff No.2 John Gomes examined as PW.1 needs to be looked into in this background. In 1969, he was not more than 13 years of his age and his father Eugenio expired in 1978, while the dispute cropped up after 1992. He has stated that he was not conversant with the signature of his mother or father, but then signatures on the Wakalatnama in the suit filed by him was identified by him and that Wakalatnama was exhibited. In so far as Wakalatnama in inventory proceedings is concerned, he has stated that he would not be in a position to identify their signatures. He has also stated that he was not aware when he last 15 visited the suit property and stated that approximately it might be before filing of the suit. He further stated that entire house was reconstructed when he was 6 years or that in 1962 he stated that he had no personal knowledge of inventory proceedings or its service upon his father Eugenio and, therefore, would not be able to deny whether notice of inventory proceedings was served on him or not. He denied that his father was aware of inventory proceedings. He, however, stated that he was not having personal knowledge about his father's ignorance. He stated that he would not be able to deny engagement of Advocate Rebello by his father and he further stated that he had no personal knowledge whether his father signed Wakalatnama in favour of said Advocate Rebello. In next answer, he stated that he did not know whether his father engaged Advocate Rebello. He denied that Advocate Rebello was related with his mother. Suggestion was given to him that his father was served with notice of inventory proceedings and he was represented by Advocate Rebello which he could not deny. He further stated that he was not in a position to state whether his father received any owelty money. He further stated that signatures on Wakalatnama in favour of Advocate Rebello purported to be the signatures of his parents, but then his mother Ana told him that she did not sign any 16 Wakalatnama in favour of said Advocate. He was disputing her signatures. He accepted that it was not pleaded that said Wakalatnama was forged document and that Advocate Rebello was not entitled to receive first notice of inventory proceedings. That Wakalatnama did not carry any number of inventory proceedings. He also accepted that no notice was issued to the Advocate by him or that there was no allegation of fraud or collusion against that Advocate. He also produced notarized copies of inscription and description of the suit property with English translation i.e. Exhibit PW.1/10 and Deed of Declaration and partition Exhibit PW.1/11, as also Deed of Gift as PW.1/13. In cross examination, he accepted that PW.11 and PW.12 collectively were never acted upon. 12. Though in view of these answers in cross examination, Advocate Costa Frias has strongly argued that burden to show that inventory proceedings have been conducted malafide is not discharged, the records of inventory proceedings produced before the trial Court and also before us show that vakalatnama dated 3.11.1969 with Advocate Rebello was by a date prior to day on which the inventory Court issued notice to parties. The position emerging from records is 17 already appreciated by us above and we concur with the findings of the trial Court in this respect. We, therefore, do not find any merit in the arguments of learned Advocate for the appellants. 13. The perusal of relevant provisions of Civil Code then in force becomes necessary. Article 1369 requires the administrator to be notified to take oath of office that he shall discharge his duties diligently and faithfully and that he shall make declarations as per Article 2072 of the Civil Code, whether there are values to be brought under collation and name of persons who are to bring them etc. As per paragraph 4, in order to make the appointment of administrator, the judge has to make inquiry as he deems fit, and if from the declaration of the person concerned, he is satisfied that some other person should be appointed as Administrator, that person is to be so appointed. This provision, therefore, shows that the party in person needs to be appointed as an Administrator and it is office of trust. In present matter, appellants have not pointed out to us any such order appointing Administrator. It is obvious that an Advocate who acts as agent of party could not have been appointed in that capacity. The judge dealing with inventory proceedings ought to have recorded the necessary reasons for 18 not complying with this Article 1369 or then for selecting the advocate as administrator. It is interesting to note that all interested parties were being represented by very same advocate. The contention of Advocate Costa Frias that there was no contest between parties and all properties of both the deceased whether with him or bequeathed by them needed to be disclosed in inventory needs scrutiny in this background. 14. Under Article 1371 the proceedings can be dropped if from the statement of administrator it is found that there is no basis for the same. Here, if gift of disposable share to the priest son and partition of 2nd property between 5 sons of deceased were pointed out to the inventory court, the proceedings would have been most probably entertained only for half part of property no. 1. In view of subsequent developments which are not in dispute, the 1st property no longer forms part of present dispute as in later partition within the family of Herculano, appellants before this Court got property no. 2 and his other heirs who got property no. 1 have accepted the verdict of the trail Court. Once it is found that an important event of partition dated 5/7/1941 between deceased Veneziana and her 5 sons was suppressed from inventory Court, the proceedings cannot be said to have been 19 conducted honestly and even if, any oath is presumed to have been administered to advocate Rebello or then even to Herculano, its breach is more than apparent. 15. If after declaration of administrator, the inventory Court finds that matter has to proceed further, matter needs to fixed for filing list of properties and documents which the administrator could not produce immediately. The wordings of Article 1371 show that summons for inventory must be issued to public prosecutor, legal heirs and their spouses who by marriage have got independent equal share in properties of their husbands. Administrator, though a heir, need not be served with such notice. Admittedly, in present matter the notice though was directed to be issued, was accepted by Advocate Rebello himself and he filed vakalatnama already in his custody. Thus very purpose of making this provision in Article 1371 stood defeated. The position of donees is very important and a notice to them is also must for they have to take oath to discharge duties as administrator in relation to gifted properties and this is irrespective of whether they are bound by collation or not. All such directions are required to be mentioned in the act of declaration of administrator wherever possible. In present matter, 20 it would have been possible for inventory judge to record all such acts initially itself had administrator or Herculano disclosed the true state of affairs. 16. Paragraph 1 of Article 1371 treats lack of service to heirs or their spouses and to the public prosecutor as absence of service on defendants. It is obvious that no final or binding adjudication can take place in absence of such service upon Eugenio or Ana Bertha. Article 1372 states when and what type of heirs can be treated as exparte. It is not the case of appellants that deceased were treated as exparte and their case initially was that Eugenio prosecuted the matter, but later they alleged that Advocate Rebello