IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 108 OF 2008 SMT. P. M. PETER ALIAS MARY CARVALHO AND 2 ORS., ... Appellants Versus MR. VICTOR MARTINHO CARVALHO AND 2 ORS., ... Respondents Shri Nitin Sardessai, Advocate for the Appellants. Coram:- N. A. BRITTO, J. Date:- 13th March, 2009 P.C.:- Heard Shri Nitin Sardessai, learned Counsel appearing on behalf of the Appellants who are the Defendants in R.C.S. No.99/2000. The Plaintiffs and Defendant No.2 are brothers and sons of defendant No.1 who is their mother. Their father was registered as a mundkar in respect of house bearing No.417/A. Defendant Nos. 1 and 2 along with the landlady of the property in which the house is situated, namely Defendant No.4, by deed dated 7-12-1999 sold the suit house to the mother i.e. Defendant No.1, the son, Defendant No.2 and daughter-in-law defendant No.3 to the exclusion of the Plaintiffs who are the sons of Defendant No.1 and Ernesto Luis Xavier Carvalho. The Plaintiffs therefore filed the said suit for declaration that the said deed dated 7-12-1999 was ab initio null and void as it was executed without their consent as the house belonged to them and it was registered in the name of their father, as mundkar. The suit was not contested by Defendant No.4. The learned trial Court proceeded to declare the sale deed as null and void on the ground that the Plaintiffs were the heirs of late Eenesto Luis Xavier Carvalho who was the mundkar of the said dwelling house and they were not parties to the said sale deed and their consent was not obtained for the execution of the same. The learned first appellate Court noted that the father of the Plaintiffs was declared as a mundkar in respect of the suit house by Order dated 1-10-1984 of the Joint Mamlatdar. The learned first appellate Court also referred to Section 3 of the Goa, Daman and Diu Mundkar(Protection from Eviction) Act, 1975 and observed that by virtue of the said Section the rights of the mundkar in his dwelling house would be heritable and not transferable. The learned first appellate Court further observed that since the said Ernesto Luis Xavier Carvalho was declared as a mundkar, upon his death in terms of the law in force his wife and children would derive rights to the said mundkarial house and as such the Plaintiffs had become the co-owners of the suit house along with Defendant Nos.1, 2 and 3 upon the death of their said father Ernesto Luis Xavier Carvalho and therefore proceeded to dismiss the appeal filed by the Plaintiffs. Shri N. Sardessai, learned Counsel appearing on behalf of the Appellants/Defendants submits that the said Ernesto Luis Xavier Carvalho was only registered as a mundkar and that registration could be only prima facie evidence that he was a mundkar and finality to it could be achieved only after obtaining a declaration that he was a mundkar and in that context, Shri Sardessai has placed reliance upon the decision of a Division Bench of this Court in the case of Smt.Gulabi Sangtu devidas and others v. Smt. Prema Govinda Gaonkar and others(1995(1) GLT 154) and also on the case of Shri Vincente Cabral v. Smt. Sunandabai Dayanand Bandodkar(1991(2) GLT 331). Learned Counsel therefore submits that there is a perversity in the findings of the Courts below in that the Courts below did not consider the difference in law between registering a person as a mundkar and obtaining a declaration to that effect. I have perused the decisions cited by learned Counsel and they are inapplicable to the facts of the case. The submissions of learned Counsel cannot be accepted. The dispute between the parties could also be looked independently of the claim that the Plaintiffs' father was registered as a mundkar.The Plaintiffs had clearly pleaded that the dwelling house originally belonged to the Plaintiffs father the said Ernesto Luis Xavier Carvalho and he was declared as a mundkar. The Defendant Nos.1, 2 and 3 did not dispute the ownership of the said house and on the contrary it was stated by defendant No.1 that she was married to the said Ernesto Luis Xavier Carvalho under the regime of Communion of Assets and as such she was a "Meira"(half sharer) of the said Ernesto. If that be so, the other half belonged to the Plaintiffs and Defendant No.2 and as such the suit house could not be sold by Defendant No.1 along with Defendant No.4 in favour of the Defendant Nos.2 and 3 without the consent of the Plaintiffs who were the other co-owners of the suit house. Looked from any angle the questions framed do not arise in this Second Appeal. Consequently, the same is hereby dismissed. N. A. BRITTO, J. RD.