-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.62 OF 2005 Mrs. Maria Erta Tereza Gomes Near Baina Church, Baina, Vasco-da-Gama, Goa. …... Appellant V e r s u s 1. Dr. Jose Coelho, son of Dr. Silvano Coelho, resident of “Ravindra”, St. Inez, Panaji, Goa. 2. Venkatesh Vithal Kharangate (since deceased),Through his legal representatives: (a) Ms. Kusum Kharangate (b) Ms. Pushpa Kharangate (c) Mr. Suresh Kharangate (d) Mr. Vilas Kharangate (e) Mr. Pradip Kharangate All having their address at H. No.124, Velsao, Cansaulim, Goa. And represented by their Power of Attorney, Shri Vilas Kharangate. …... Respondents Mr. M. S. Usgaonkar, Senior Advocate with Mr. I. Agha, Advocate for the Appellant. Mr. M. B. da Costa, Senior Advocate with Mr. C. A. Coutinho, Advocate for the Respondent No.2(d) Coram :- A. S. OKA F. M. REIS, JJ. Judgment Reserved on : 5 th July, 2010. Judgment Pronounced on : 18 th August, 2010. -2- ORAL JUDGMENT (Per F. M. Reis, J.) The present Second Appeal challenges the Judgment and Decree dated 10th December, 2004, passed in Regular Civil Appeal no. 14 of 2001 by the learned Addl. District Judge-3, South Goa, at Margao. 2. The Appeal has been admitted on the following substantial question of law : 1. Whether there is misconstruction of Will dated 26.05.1926, made by the testatrix Maria Josefa Pereira in favour of the legatees Maria Jovito Pereira, Appellant's mother and Maria Amalia Pereira, predecessor in title of the Respondents ? 2. Whether there is misconstruction of the Will dated 26.05.1926 made by the Testatrix Maria Jovita Ana Maria Cecilia Pereira in favour of the legatees Maria Jovita Pereira, Appellant's mother and Maria Amalia Pereira, predecessor in title of Respondents? 3. The Respondents filed the suit praying inter alia for declaration that they are the owners in possession and enjoyment of the suit property surveyed under survey no. 15/1 of Village Issorsim Taluka, Mormugao, and that the Appellant has no right, title or interest of whatsoever nature in the suit property. By Judgment and Decree dated 8th January, 2001, the learned Civil Judge, Junior Division, at Vasco da Gama, dismissed the suit filed by the Respondents. The learned Judge while interpreting the Wills based on which the claims were put forward by the Plaintiffs, came to the conclusion that since the Respondents admitted that his -3- mother and father established themselves in the ancestral house, they are not entitled to any further share in the properties of the testatrix and that the Appellant and her sister acquired right to the suit property. 4. In the appeal preferred by the Respondents before the learned Addl. District Judge, South Goa, Margao, being Regular Civil Appeal no. 14/2001, by Judgment and Decree dated 10th December, 2004, the Appeal was allowed and the suit filed by the Respondents was decreed. It was declared that as on 10th April, 1995, the Respondents were the owners of the property surveyed under no. 15/1 of Village Issorcim. The learned District Judge held that the Respondents were the exclusive owners of the suit property surveyed under no.15/1 by interpreting two Wills each dated 26th May, 1926, to the effect that the beneficiary who pays the amount specified therein is entitled to all the properties of the testator including the suit property. 5 The interpretation of the said Wills and the subject matter of the suit property was also subject matter of First appeal no. 87/2005 and First Appeal no. 88/2005, wherein the interpretation of both the said Wills and the clauses herein were the subject matter of the said Appeal. While disposing of the said two Appeals, this Court has found that the suit properties belonged in equal shares to the Appellant and her sister Mrs. Maria Celsa Gomes to the extent of one half share and to Maria Amalia Pereira the remaining half. 6. For the reasons stated in the Judgment passed today in the said two -4- First Appeals, we find that the Judgment dated 10th December, 2004, passed by the Addl. District Judge, South Goa, Margao, in Regular Civil Appeal no. 14/2001 and Judgment dated 8th January, 2001, passed by the learned Trial Judge, Vasco da Gama, in Regular Civil Suit no. 31/95/D, cannot be sustained. It is as such declared that the Appellant and her sister Maria Celsa are entitled to one half of the suit property and the Respondent no.2 are entitled to the remaining half of the suit property. The substantial questions of law are answered accordingly. 7. In view of the above, the impugned Judgment and Order dated 10th December, 2004, passed by the Addl. District Judge-3, South Goa, Margao in Regular Civil Appeal no. 14/2001 and Judgment and Decree dated 8th January, 2001, passed by the learned Trial Judge, Vasco da Gama, in Regular Civil Suit no. 31/95/D, are quashed and set aside. It is hereby declared that the Appellant is entitled to one half of the property surveyed under no. 15/1 along with her sister M. C. Gomes and the remaining one half belongs to Respondent no.2. 8. The Appeal stands disposed of accordingly with no Orders as to costs. A. S. OKA, J. F. M. REIS, J. arp/*