-1- IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 328 OF 2000 1. Shri Anant Venkoba Haldankar, of full age, through his constituted attorney Rajendra Anant Haldankar resident of Bamnavaddo, Candolim, Bardez, Goa. 2. Smt. Jankibai Anant Haldankar, 3. Smt. Savitribai Venkoba Shet Haldankar of full age, residing at Bamanvaddo, Candolim, Bardez, Goa. (Deleted as per Order dated 05.09.02 in MCA no. 234/2002.) …... Petitioners V e r s u s 1. Shri Madhusudan Haldankar 2. Smt. Saraswati Madhusudan Haldankar, both of full age, residing at Bamanvaddo, Candolim, Bardez, Goa. (The registered addresses of the Petitioners and the Respondents for the purposes of service are the same as above) 3. Gulababai Manohar Verlekar 4. Manohar Verlekar Escrivao Waddo, Ximer, Candolim, Bardez, Goa. 5. Shashikant Vernekar 6. Kalpana Shashikant Vernekar Both residing at 7-B, Saiprasad Society, Block No. 201, Galli No.1, Andheri-Koldongri, Mumbai – 69. 7. Nandakishor Karekar 8. Nutan Nandakishor Karekar Both residing at C-11, New Priyanka Apartment Veer Savarkar Road, Opp. Motiba Ricemill, Virar-East, Dist. Thana. 401 303. -2- 9. Umesh Badekar 10. Urmila Umesh Badekar Both residing at 5th Floor, Block No.15, Heera Court Building, Lady Jamshedji Road, Opposite Rajarani Travels, Mahim, Mumbai – 16. 11. Ashok Lotlikar 12. Laxmi Ashok Lotlikar Both residing Satarbhat, Piedade, Diwar, Goa 403 430. 13. Rajesh Manguesh Pednekar 14. Reema Rajesh Pednekar Both residing at Cross Sitaldevi Temple Road, Nanabhai Building, Mahim, Mumbai – 16. 15. Suresh V. Shirodkar 16. Asha V. Shirodkar 17. Hema V. Shirodkar 18. Pundalim V. Shirodkar All through their constituted attorney Madhusudan Haldankar, residing at Bamonwado, Candolim, Bardez, Goa. (Amendment carried out as per Order dated 17.02.06 passed in MCA no. 108/05 in WP No. 328/00.) …... Respondents Mr. M. B. D' Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the Petitioners. Mr. V. Menezes, Advocate for the Respondents. -3- Coram :- F. M. REIS, J Date : 6 th September, 2011. ORAL JUDGMENT The above Petition challenges the Judgment dated 02.06.2000 passed by the learned Addl. District Judge, at Panaji in Misc. Civil Appeal no. 127/99. 2. Inventory proceedings were initiated upon the death of the parents of Petitioner no.1 in the Court of learned Civil Judge, Senior Division at Mapusa, being Inventory Proceedings no. 17/1980. In the said proceedings, the properties belonging to the deceased were enlisted by the Cabeca-de-casal, who is Respondent no.1 herein. During the course of the said proceedings, the widow Savitribai Shet Haldankar, who has thereafter expired, produced two Deeds of Gift executed by her along with her deceased husband one dated 30.12.1974 and the other dated 04.11.1979. The Respondent no.1, who is the Cabeca-de-Casal, filed an application dated 20.05.1998 before the Inventory Court praying inter alia that the Deed of Gift dated 04.05.1979 be declared as being in excess of the disposable quota and be declared null and void and as such the Gift of Deed dated 04.07.1979 may not be taken into consideration for the purpose of the partitioning of the asset of the deceased. 3. The learned Civil Judge Senior Division, Mapusa, by an Order dated 20.11.1998, rejected the said application filed by the Respondent. Being aggrieved by the said Order, the Respondents preferred an Appeal before the learned Addl. District Judge at Panaji, being Misc. Civil Appeal no. 127/1999 which, by the -4- impugned Judgment dated 02.06.2000, came to be allowed and the application filed by the Respondent no.1 was granted. Being aggrieved by the said Judgment, the Appellants have preferred the present Petition. 4. Shri M. B. D' Costa, the learned Senior Counsel, appearing for the Petitioners has assailed the impugned Order and pointed out that learned Appellate Court has failed to consider that the application filed by the Respondent no.1 was premature as the fact as to whether any gift is in-officious or not is a matter to be considered only after the preliminary informative draft of partition is drawn by the Inventory Court. The learned Counsel has further pointed out that though under the provisions of 1495 of the Portuguese Civil Procedure Code a Gift can be held to be in-officious but for the purpose of ascertaining as to whether such Gift in fact is in- officious, the matter would have to be decided only after such preliminary draft of partition is drawn by the Inventory Court. The learned Senior Counsel has further pointed out that by passing the impugned Judgment, the Petitioners have been deprived of their right to seek second valuation if they are so advised at a stage when such preliminary draft of partition is drawn under the provisions of 1406 of the Portuguese Civil Procedure Code. The learned Senior Counsel further submitted that the learned Judge has erroneously come to the conclusion that the Deed of Gift executed in the year 1979 is null and void when such declaration could not even be granted even if the Gift is held to be in-officious. The learned Senior Counsel has taken me through the impugned Judgment and submitted that the learned Judge has totally misdirected itself and misinterpreted the provisions of law and as such erroneously allowed the Appeal preferred by the Respondent no.1. -5- 5. On the other hand, Shri Valmiki Menezes, the learned Counsel appearing for the Respondents, has supported the impugned Judgment. Shri Menezes has pointed out that there is no dispute raised by the Petitioners with regard to the valuation of the assets left behind by the deceased and considering the said aspect, the only conclusion which can be drawn is that the second Deed of Gift is in-officious and, as such, has to be considered as null and void. The learned Counsel has further pointed out that the question of contending that such exercise has to be done only after the preliminary informative chart of partition is drawn by the trial Court, cannot be accepted as it could be only an exercise in futility as, according to him, the only conclusion that can be drawn is that the second Deed is null and void. The learned Counsel further submitted that the learned Appellate Court has rightly appreciated the evidence on record and has correctly passed the impugned Judgment, which does not call for any interference by this Court; and as such the Petition deserves to be rejected. 6. The undisputed facts of the case are that the Inventory Proceedings as originally filed were upon the death of the deceased Vencoba Haldankar, husband of the original Cabeca-de-casal Savitribai Haldankar, who expired in May 1979. That the said Cabeca de casal expired in the year 2002. The facts also disclose that both the deceased had executed the two Deed of Gifts, one in the year 1974 and the other in the year 1979 with regard to two different properties. The point for consideration is at what stage the Court has to consider whether any disposition by the Deed of Gifts can be considered to be in-officious. Article 2111 of the Portuguese Civil Code provides how the gifts which exceed the legitime are to be dealt with. Article 1387 of the Portuguese Civil Procedure Code provides that -6- only after the description of the assets, the appraisal of the properties shall be ordered. Article 1390 of the Portuguese Civil Procedure Code further provides that after the appraisal is finalised, the final description of the properties and debts shall be effected. Thereafter, under Article 1391 of the Portuguese Civil Procedure Code , procedure to lodge objection to the valuation etc., is envisaged. Article 1406 of the Portuguese Civil Procedure Code also entitles in specific situation to seek for second valuation of the gifted properties. The procedure to be followed in case the gift is inofficious is also contemplated therein. The second valuation can be sought by the donee till the end of the limitation or at the time of the examination of the file as provided therein. In case of second valuation specific number of valuers have to be appointed. Article 1417 of the Portuguese Civil Procedure Code provides the steps to be taken in case the gifted properties exceed the share of the co-heir. 7. Considering the relevant provisions of law, it cannot be disputed that the Inventory Court has to decide whether any disposition is in-officious only after the process is complied with. There is no dispute that the proceedings have not reached the said stages. The Petitioners at appropriate stages in the proceedings are entitled to seek for second valuation. Merely because a Deed of Gift is in- officious, it cannot be termed as null and void under the provisions of law. The learned Appellate Court was not justified to come to the conclusion that the Deed of Gift is null and void. The learned Senior Counsel appearing for the Appellants, is justified as such to contend that the application filed by the Respondent no.1 is prematured. The learned Judge was in error to decide the application at this stage of the proceedings. The contentions raised by the Respondents can be considered only after the procedure provided by law are complied with by the Inventory Court -7- and after the interested parties are heard in the matter and an opportunity is given to them to avail of the option available in law. As such I find that the impugned Order of the learned Appellate Court cannot be sustained for the aforesaid reasons and deserves to be quashed and set aside. 7. Taking note that the widow has expired in the year 2002, the portion of the properties gifted by her by the said Deed of Gift could under no circumstances be declared as null and void for the reasons recorded in the impugned order. No doubt, as far as her assets are concerned, a fresh valuation will have to be carried out as on the date of the opening of the inheritance. The learned Counsel did not dispute that the valuation originally carried out upon the death of the deceased Vinayak is valid only with regard of his share in the properties enlisted in the proceedings. Considering the overall view of the matter, I find it appropriate that the Inventory Court would have to decide the factum as to whether any disposition by the Deeds of Gift are in-officious or not only after the procedure envisaged by law is complied with and not at this stage of the proceedings. 8. At this stage, both the learned Counsel state that they would file an appropriate application disclosing the manner in which the properties enlisted in the Inventory Proceedings would be enjoyed as per their respective possession during the pendency of the Inventory Proceedings. The Inventory Court shall decide such application on its own merits. 9. In view of the above, I pass the following : -8- O R D E R i. The impugned Order dated 20.11.1998 is quashed and set aside. ii. The Inventory Court is directed to proceed with the Inventory Proceedings in the light of the observations made herein above in accordance with law. Iii. The application filed by the Respondent no.1 will have to be considered in the light of the observations made herein above in accordance with law. All contentions with regard to the said application are left open. iv. The parties are directed to appear before the Inventory Court on 21.11.2011 at 10.00 a.m. The Inventory Court is directed to finally dispose of the proceedings preferably on or before 31.12.2012. iv. Rule is disposed of in the above terms. F .M. REIS, J. arp/*