-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 182 OF 2002 Smt. Palmira Cota e Dias, (deceased), (a) Shri Ivo Dias and his wife, (b) Mrs. Plathilda Dias, Resident of House no. 12, Thondwaddo, Betalbatim, Salcete, Goa. (Amendment carried out as per order dated 20.11.07 and order dated 31.03.08). …... Appellants V e r s u s 1. Smt. Odette Irene Dias Rodrigues, 2. Smt. Augusta Julio Lopes Rodrigues, 3. Smt. Maria Gracinda Olga Dias, (Dismissed as per order dt.26.08.09) 4. Shri Abel Chagas De Almeira, (Dismissed as per order dt.26.08.09) 5. Smt. Alice Olga Dias, (Dismissed as per order dt.26.08.09) 6. Shri Amantes Salvestre Coutinho, (Dismissed as per order dt.26.08.09) 7. Smt. Talanta Dida Coutinho Mascarenhas, 8. Smt. Telma Celina Coutinho, Conceicao Mascarenhas. 9. Smt. Maria Teodora Souza Braganza, 10. Shri Joaquim Seabra Mota Martins (Dismissed as per Order dt. 26.08.09) 11. Smt. Mencia Francisco Coalngo De Souza Braganza. 12. Shri Antonio Manuel Lopes Pereira, -2- 13. Smt. Maria Alice Azedo Souza Braganza, 14. Shri Antonio Dominique Mendes all represented by their duly constituted attorney Smt. Odette Maria Lopes, resident of 1st floor, A/1-2, Panaji, Goa. (Deleted as per order dated 29.04.08 in MCA 912/07). 15. Smt. Ganga Gauns, resident of Tonca, Miramar, Panaji. 16. Shri Sadiq, resident of first floor, Rani Pramila Arcase 18th June Road, Panaji, Goa. …... Respondents Mr. M. P. Almeida, Advocate for the Appellants. Mr. J. Godinho, Advocate for Respondent nos. 1, 2, 7 and 8. Mr. J. Vaz, Advocate for Respondent nos. 9, 11, 12, 13 and 14. CORAM :- A. S. OKA F. M. REIS, JJ. DATE : 14 th June, 2010. JUDGMENT (Per F. M. Reis, J.) The appeal challenges the Judgment and award dated 31st January, 2002, passed by the learned Addl. District Judge, Panaji, in Land Acquisition Case no. 150/1996. An area of 12931 square metres was acquired by the Government from Chalta no. 3(part) of P.T.S. no 135 of Panaji City for setting up of Toy Train at Miramar beach. 2. By an award dated 6th May, 1996, the compensation for the said -3- acquired land was fixed at Rs.27,66,417/- by the Land Acquisition Officer and a reference was made to the learned District Judge under Section 30 of the Land Acquisition Act in view of the rival claims put forth for the amount awarded by the appellant and the respondents. 3. By the impugned Judgment dated 31st January, 2002, the learned Addl. District Judge awarded the amount of compensation for the land acquired to be paid in equal parts to the legal representatives of the deceased applicant Antonio Dias. 4. Being aggrieved by the said award, the present appeal has been preferred by the appellant, who was the original respondent no.1 to the reference proceedings. 5. The learned Counsel Shri M. P. Almeida, appearing for the appellant, assailed the impugned Judgment on the ground that the original appellant who has now expired on 1st January, 2004, was entitled to an usufructory right in the properties of her deceased husband Antonio Dias in view of Article 2003 of the Portuguese Civil Code. He further submitted that though the marriage between the original appellant and the deceased Antonio Dias was governed by the separation of assets, nevertheless, the usufruct reserved to the deceased appellant cannot be defeated in view of the said provisions of the Portuguese Civil Code. The learned counsel further submitted that learned Addl. District Judge has erred in coming to the -4- conclusion that in view of the Ante-Nuptial Agreement, whereby the marriage between the deceased appellant and said Antonio Dias was governed by separation of assets, the usufructory right does not subsists. The learned Counsel further submitted that the right of the deceased Antonio Dias in the acquired land was to the extent to undivided one fifth share and as such the deceased appellant was entitled to usufruct right which resembles to the interest accrued on the said share in the compensation awarded by the Land Acquisition Officer during her lifetime. He further submitted that as such the appellants are entitled to interest accrued on the amount of Rs.5,53,294/- from the date of deposit in the reference Court up to the date of the death of the deceased appellant which occurred on 1st January, 2004. The learned Counsel therefore submitted that the impugned Judgment deserves to be quashed and set aside. 6. On the other hand, the respective Counsel appearing for the respondents namely Shri J. Godinho for Respondent nos. 1 to 8 and Shri J. Vaz for respondent nos. 9, 11, 12, 13 and 14 have supported the impugned Judgment and submitted that in view of the Ante-nuptial Agreement, the deceased appellant has no claim to the land acquired and, as such, she was not entitled for any part of the amount of compensation awarded in the land acquisition proceedings. The learned Counsel further submitted that, in any event, the amount awarded by the Land Acquisition Officer belongs to the respondent nos. 1 to 14 and, at the most, considering that the share of the -5- deceased Antonio Dias was to the extent of one fifth share in the acquired land, the appellant would be entitled for interest only during her lifetime while the said amount was deposited before the reference Court. 7. On hearing the learned Counsel for the parties, the point for determination which arises in the present appeal is as follows : 1. Whether despite of the Ante-nuptial Agreement, the appellant is entitled to a usufruct right in the property of her deceased husband in view of Article 2003 of the Portuguese Civil Code ? 8. The undisputed facts which arise from the records are that the acquired land originally belonged to Nicolao Flora Dias who was married to Ana Eufemiana Elizabeth Dias. Upon their death, the estate of the said couple which included the property which was the subject matter of the acquisition, devolved upon their five children which included their son Antonio Climaco Gavinho Dias alias Gavinho Dias. There is no dispute that the said Antonio Climaco Gavinho Dias was married to Maria do Rosario Ofelia Terezinha Palmira Dos Doris Cotta, who is the original appellant no.1, who has expired during the pendency of the above appeal and is being represented herein by her legal representatives. There is also no dispute that the said Antonio Climaco Gavinho Dias had one fifth share in the land which was subject matter of the said acquisition. Considering the said admitted facts, the only aspect to be considered is whether the deceased appellant is entitled for any part of the compensation awarded by the Land Acquisition Officer in the said proceedings. -6- 9. Article 2003 of the Portuguese Civil Code provides as under : Article 2003 In the absence of descendants, or ascendants and of siblings and their descendants, the surviving spouse shall succeed if, at the time of the other spouse’s death, they were not divorced or separated of persons and property by a judgment in a condition of res judicata. Single unico, in the absence of descendants and of ascendants, in accordance with articles 2000 and 2002, the surviving spouse shall have the right of usufruct over the deceased spouse’s inheritance, if at the time of latter’s death they were not divorced or separated of persons and property by a judgment in a condition of res judicata. (emphasis supplied) 10. There is no dispute that the marriage between the deceased appellant and the said Antonio Climaco Gavinho Dias was governed by separation of assets in view of the Ante-nuptial Agreement dated 8th February, 1960, executed by them at the time of their marriage which is at exhibit Pw.1/B collectively. The said Agreement has been executed in terms of Article 1096 of the Portuguese Civil Code, which provides that it is lawful for the spouses to stipulate, before the solemnization of their marriage and within the bounds of law, whatever they think fit in respect of their properties. 11. The execution of such Ante-nuptial Agreement between the -7- couple, does not deprive any of them the benefits of the provisions of the Code relating to successions. Article 1096 of the Code gives full liberty to the couple to make an arrangement with regard to their respective properties with a clog that they cannot make any agreement which is contrary to the provisions of law. On a plain reading of Article 2003 of the Portuguese Civil Code, in the absence of any descendants or ascendants and of siblings and their descendants, the surviving spouse shall succeed if at the time of the other spouse’s death, they were not divorced or separated of persons and property by a Judgment in condition of res judicata. It further provides that in the absence of descendants and ascendants in accordance with Article 2000 and 2002, the surviving spouse shall have the right of usufruct over the deceased spouse’s inheritance, if at the time of latter’s death they were not divorced or separated of persons and property by a judgment in a condition of res judicata. 12. There is no dispute that the couple was not divorced or separated and, as such, as there were no ascendants and descendants upon the death of the said Antonio Climaco Gavinho Dias, the inheritance devolved upon his brothers and their descendants who are the respondent nos. 1 to 14 in the present appeal but the right of usufruct is reserved in favour of the deceased Appellant during her lifetime. The right of usufruct reserved under the said provisions of law does not depend upon the regime by which the marriage between the couple is governed. Merely because -8- the original appellant had married said Antonio Climaco Gavinho Dias by Ante-nuptial Agreement to the effect that their marriage would be governed by separation of assets, the right of usufruct as provided under the provisions of Article 2003 of the Portuguese Civil Code, cannot be defeated. In terms of para unique of Article 2003 of the Portuguese Civil Code, each spouse could enjoy the usufruct of the others ownership till his or her lifetime and with the death of the last of them, their respective properties shall go to the destined relations. 13. The learned Addl. District Judge as such has come to an erroneous conclusion that in view of the Ante-nuptial Agreement between the deceased appellant and the deceased Antonio Climaco Gavinho Dias, she was not entitled for usufruct right in the compensation awarded in the land acquisition proceedings which was the subject matter of the reference. As such, the impugned Judgment dated 31st January, 2002 cannot be sustained and deserves to be quashed and set aside. 14. The learned Counsel admit that the amount deposited by the Land Acquisition Officer has been invested by the reference Court in fixed deposit on 4th September, 1996. As such, the interest accrued to the extent of one fifth share which belonged to the deceased Antonio Climaco Gavinho Dias in the land acquired during the lifetime of the deceased appellant, would be payable to the appellants. However, the amount of compensation deposited by the Land Acquisition Officer would be payable to respondent -9- nos. 1 to 14 along with interest accrued thereon except the interest payable to the Appellant as specified hereinabove. 15. In view of the above, (i) The appeal is partly allowed; (ii) The impugned Judgment and award dated 31st January, 2002 is quashed and set aside; (iii) The Appellant nos. 1(a) and 1(b) are entitled to the interest accrued from 04.09.1996 up to 01.01.2004 on Rs.5,53,294/-; and (iv) The Respondent nos. 1 to 14 are entitled to Rs.27,66,417/- along with interest accrued thereon except the interest as awarded as per clause (iii) herein. 16. There shall be no orders as to costs. Appeal disposed off accordingly. Decree be drawn in the above terms. A. S. OKA, J. F. M. REIS, J. arp/*