- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. First Appeal NO. 59 OF 2004. Shri Samiro Vaze e Pereira, H. No.51, Gontonaik Vaddo, Orlim, Salcete, Goa. .......... Appellant. Versus 1 Smt. Maria Roque Filomena Vaz, H. No. 50, Orlim, Salcete Goa. 2 Roque Morgan Judas Vas Pereira, H. No.50, Gontonaik Vaddo, Orlim, Salcete, Goa. 3 Esther Lorena De Concessao Vas Pereira, H. No.50, Gontonaik Vaddo, Orlim, Salcete, Goa. .......... Respondents. Mr. Richard Alemida, Advocate for the Appellant. Mr. M. B. D'Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the Respondent no.1. Coram:-F. M. REIS, J. Date:-3rd September, 2010. ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 6th February, 2004 passed by the learned Additional District - 2 - Judge, South Goa Margao, in Land Acquisition case no.31/2001 in a reference under section 30 of the Land Acquisition Act. The Appellant is the Party no.1 before the Reference Court whereas the respondent nos. 1, 2 and 3 are Party nos. 2, 3 and 4 before the Reference Court. The parties shall be referred in the same manner as they so appeared in the cause title of the impugned Judgment. 2. By notification under section 4 of the Land Acquisition Act (hereinafter referred to as 'the said Act') dated 26th June, 1995, the Government acquired an area of 775 square metres from the property surveyed under no. 77/1 of the village Orlim for the purpose of construction of Palkut road in Desonaik and Condalem in Village Panchayat, Orlim and Varca villages in Salcete Taluka. 3. In view of a dispute between the Party no.1 and the Party no. 2,3 and 4, the Land Acquisition Officer made a reference under section 30 of the said Act before the learned District Judge, Margao for adjudicating rival claim raised by the parties. 4. By Judgment and Award dated 6th February, 2004 the learned Additional District Judge, South Goa, Margao, awarded the - 3 - compensation of Rs. 64,007/- alongwith interest to be paid to the Party no.2 who is respondent no.1 herein. 5. Being aggrieved by the said Judgment and Award, the Party no.1 has preferred the present appeal. 6. Learned Counsel appearing for the Party no.1 has submitted that though the inventory proceeding initiated upon the death of the husband of respondent no.2 were disposed of by consent terms, nevertheless the Party no.3 has filed a suit to challenge the consent terms by filling a civil suit which is pending before the learned Civil Judge, Junior Division Margao. He further submitted that though in the consent terms, the property which is subject matter of the acquisition in the present proceeding was allotted to Party no. 2, however in view of the pendency of the said suit, Party no. 2 is not entitled to claim the amount as awarded by the Land Acquisition Officer. He further submitted that the Will executed by the father of Party no.1 who is the husband of Party no. 2 was challenged by Party no.1 in a civil suit which came to be withdrawn in view of the consent terms filed in the said inventory proceedings bearing no.121/1997 which was disposed of by the learned Civil Judge Senior Division at - 4 - Margao. He further submitted that though there is no dispute with regards to the allotment done in the said inventory proceeding, but in view of the pendency of the said suit, Party no.2 is not entitle to collect the amount deposited before the Reference Court. He further pointed out that the Will is vitiated and the Party no.2 is not entitled to claim exclusive right to the portion of the land acquired as her share was only to the extent of her moiety share which is half share in the land acquired. He further pointed out that the Reference Court has failed to consider the law as applicable to the facts of the present case and has come to an erroneous conclusion that the Party no.2 was entitled to receive the amount deposited by the Land Acquisition Officer. 7. On the other hand Shri M. B. D'Costa, learned Senior Counsel appearing for Party no.2/respondent no.1 herein has supported the impugned judgment. He pointed out that the inventory proceeding have been finally disposed of by a final Judgment and Decree dated 12th April, 1999 whereby the property from which the land has been acquired was allotted to Party no.2. He further pointed out that there can be no dispute that the Party no. 2 is entitle to her moiety share which entitle her to half in the said property. In any - 5 - event learned Senior Counsel submitted that as far as the remaining 50% is concerned the respondent no.2 being administrator of the estate of the estate leaver is entitle to collect the said amount from the Reference Court but however would be liable to return any amount which may be determined in case the said Inventory proceedings are re-opened in view of any order passed in the said suit. He also pointed out that there is no infirmity committed by the Reference Court by passing the impugned award and as such no interference can be called for in the impugned Judgment and Award by this Court. 8. Having heard the learned Counsels for the Appellant and the Respondent no.1 and on perusal of the records, I find that the following point for determination arise in the present appeal:- POINT FOR DETERMINATION Whether the Reference Court was justified to permit respondent no. 2 to collect the amount deposited by the Land Acquisition Officer in respect of portion of the land acquired? 9. There is no dispute that the Will was executed by the late Dr. Alvaro Pereira, whereby he bequeathed his disposal share in his property to his wife/respondent no.2 and one of the properties - 6 - bequeathed was the property surveyed under no. 77/1 which was subject matter of the acquisition. Article 1766 of the Portuguese Civil Code provides that:- “Those married as per the custom of the country shall not, under penalty of nullity, dispose of certain and specific properties of the couple, except if the said properties have been allotted to them in partition, or are not included in the communion, or if the disposition has been made by one of the spouse in favour of the other or the other spouse has given consent by an authentic form.” Perusal of the said provision, no doubt provides a general bar on the disposal of certain and specific properties of the couple nevertheless there is an exception carved out therein whereby such disposition is permissible if the said properties have been allotted to them in partition or are not included in the communion, or if the disposition has been made by one of the spouses in favour of other, or, if the other spouse has given consent by authentic form. In the present case, the disposition is by one spouse in favour of other spouse and as such it comes within the exception of general bar in the disposition of specific properties. as envisaged in Article 1766 of the Portuguese Civil Code. Article 1784 of the Portuguese Civil Code provides that “legitime” means that portion of the properties that the - 7 - testator cannot dispose of because it has been set apart by law for lineal descendants or ascendants, and such portion consists of half of the properties of the testator. Hence such a Will is valid only to the extent of the disposal portion of the testator. In order to ascertain whether such disposition comes within the disposal share or not this aspect will have to be considered in appropriate inventory proceedings upon the death of the testator. In the present case there is no dispute that the inventory proceeding were filed upon the death of Dr.Alvaro Pereira, which were ultimately disposed of by consent terms. There is also no dispute that as per the consent terms the property surveyed under no. 77/1 was allotted to Party no. 2. Apart from that, there is a specific mention in the consent terms that the Party no.2/respondent no.1 herein has been allotted the property surveyed under no. 77/1 which comes within the disposal quota of the deceased. 10. It is an admitted fact that one of the interested Party/Respondent no.3 herein/Party no.3 has filed a suit before the learned Civil Judge, Junior Division at Margao to set aside the consent terms filed in the said Inventory proceedings bearing no. 121/1997. No order has been produced from the said Court to the effect that the parties have been restrained from acting upon the said consent terms. - 8 - As such the Judgment passed in the said Inventory proceedings would have to be accepted until set aside by the competent Court. In case any order is passed in the said suit setting aside the earlier Judgment in the Inventory proceedings the provisions under Article 1424 of the Portuguese Civil Procedure Code will have to be followed. Party no.1 has already withdrawn the suit filed challenging the Will executed by his deceased father Dr. Alvaro Pereira, in favour of Party no. 2 herein. No doubt the Reference Court may not be justified to come to the conclusion that merely because the Will has been executed in favour of Party no.2, she can claim exclusive ownership to the suit properties on the basis of Will as the will has to be tested as to whether the disposition therein comes within the disposal quote or not nevertheless, in view of the disposal of the inventory proceedings on the basis of the consent terms, I find that there is no infirmity committed by the Reference Court in allowing the Party no. 2 to withdraw the amount deposited by the Land Acquisition Officer in respect of land acquired. Though it is an admitted fact that the Party no. 2 as moiety share has half share in the estate of the deceased husband but however as per Article 1122 of the Portuguese Civil Code in case of death of either spouse the survivor spouse shall continue in possession and administration of the conjugal properties - 9 - till the finalisation of the partition. As such even assuming that the Party no. 3 is successful in getting the consent terms set aside, the Party no. 2 as an administrator of the estate of the deceased husband to the extent of his half share and being moiety sharer of the remaining share would be entitled to recover the said amount deposited before the Reference Court. No doubt in case the consent terms filed in the inventory proceedings are set aside, the Party no. 2/ respondent no.1 herein would be liable to return the amount received in excess in accordance with any fresh order pass in the said Inventory proceedings in terms of law. Subject to above, I find no infirmity in the impugned Judgment and Award dated 6th February, 2004 and as such, the above appeal is dismissed with no order as to costs. F. M. REIS, J. vn*