-1- IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 66 OF 2010 M/s Goa Fruit Specialities Ltd. a Public Limited company, having its Registered Office at GF-10/11, Nizmor Center, Dr. Atmaram Borkar Road, Panaji Goa. Through Shri Anuj Chawla, duly Authorized agent vide Resolution dated 5.2.2008 .... Appellant/ Original Defendant No.1 V e r s u s 1. Smt. Urmila Dinkar Bhounsule, Widow of Late Dinkar Raghuvir Bhounsule, Of full age, housewife, residing at Lovely Rose Apartments, Flat No.14, Juhu, Mumbai - 4000 049 2. Smt. Hema Jeganniwas Sinai Sawardekar, Widow of Late Jeganniwas Kashinath Sinai Sawardekar, domestic, residing at 13-B, Saraswati Baug, Jogeshwari (East), Mumbai 400 060. 3. Smt. Jayantibai Damodar Dessai, married, major in age housewife, residing at Almeida Residency, Flat No.CF-4, Behind Civil Court Mapusa, Mapusa, Bardez Goa. 4. Shri Damodar Sitaram Desai, married, of full age, landlord, residing at Almeida Residency. Flat No.CF-4, Behind Civil Court Mapusa, Mapusa, Bardez Goa. 5. Shri Dinanath Rama Kantak, widower, (Since deceased through legal Representatives) i) Shri Manoj D. Kantak. major, married. ii) Smt. Neha M. Kantak wife of Shri Manoj D. Kantak Both residing c/o Shri Pushpraj D. Kantak, Gulmohar Housing Society, -2- Arey Cross Road, Goregao (W), Mumbai - 63. iii) Shri Pushpraj D. Kantak, major, unmarried. iv) Shri Ajit D. Kantak, major, unmarried. v) Miss Sunita D. Kantak, major, unmarried, daughter. All residents of Gulmohar Housing Society, Arey Cross Road, Goregao (W), Mumbai - 63. vi) Smt. Suchita @ Seema V. Chitnis, married, daughter of Dinanath Kantak, and her husband, vii) Shri Vijay Chitnis, (deceased) Both residing c/o Shri Pushpraj D. Kantak, Gulmohar Housing Society, Arey Cross Road, Goregao (W), Mumbai - 63. (R.5(vii) dismissed as per order dated 29.09.2008 passed in Misc. Civil Appln. No.320/2008) 5(vii)(a) Miss Gauri Vijay Chitnis, Daughter of Vijay Chitnis, Residing c/o Shri Pushpraj D. Kantak, Gulmohar Housing Society, Arey Cross Road, Goregao (W), Mumbai - 63. (Amended as per order dated 29.08.2009 passed in Stamp No.414/2009) 6. Smt. Kamala Vithal Kamat, married, of full age, housewife, residing at Aquem Alta, Margao, Goa. 7. Shri Vithal Govind Kamat, of full age, businessman, and landlord, residing at Aquem Alto, Margao, Goa. -3- 8. Smt. Sulabha Narayan Pai Kakode, of full age, housewife, married, residing at Maddikata, Cuncolim, Goa. 9. Shri Narayan Uttam Pai Kakode, married, of full age, landlord, residing at Maddikata, Cuncolim, Goa. .... Respondents / Original Plaintiffs. Shri V. P. Thali, Advocate for the Appellant. Shri Sudin M.S. Usgaonkar, Advocate for Respondent nos. 6, 7, 8 & 9. Coram :- F. M. REIS, J Date : 14 th September, 2011. ORAL JUDGMENT Heard Shri V.P. Thali, the learned Counsel appearing for the appellant and Shri Sudin M.S. Usgaonkar, the learned Counsel appearing for respondents nos.6,7,8 & 9. 2. The above appeal challenges the Judgment and Decree passed by the Courts below whereby the suit filed by the respondents nos.1 to 9 came to be decreed and the Sale Deed executed by respondents nos.10,11 & 12 in favour of the appellant herein came to be declared null and void. 3. The Respondent nos. 1 to 9 filed the suit for declaration, permanent injunction and consequently reliefs on the ground that amongst several immoveable properties, the late Venkatesh Upendra Kamat and his late wife Smt. Satyawati Venkatesh Kamat, were lawful owners in exclusive possession of the vast landed -4- property known as “Karpa Punj” situated at the Village of Kundaim and bearing survey nos. 65/4, 66/4, 234/6 and 234/4, which was referred to as the suit property. It was further their case that both of them died leaving behind the Respondent nos. 1, 2 and 3 as their daughters and the Respondent nos. 4 and 5 as sons in law. The Respondent nos. 6 and 8 as their granddaughters and the Respondent nos. 7 and 9 as their grandsons in law who are entitled to succeed to the estate alongwith the Respsondent nos. 10, 11 and 12 being the widow, son and daughter in law of late Venkatesh Upendra Kamat. If is further the case of the said Respondents that on 21.07.1997, the said Respondents came across a public notice in the Gomantak Times, whereby they learnt that the Respondent nos. 10, 11 and 12 had first executed a Deed of Succession amongst themselves on 07.04.1994 that they are the only persons entitled to succeed in the estate of the said late Venkatesh Upendra Kamat and thereafter on the basis of the said Deed of Succession, the said Respondent nos. 10, 11 and 12 executed two Deed of Sales dated 15.04.1996 and 09.07.1996 selling the portions of the suit property to the Appellants without any right to sell the ancestral suit property. Accordingly, the suit came to be filed to declare the Deed of Succession as null and void as well as the two Sale Deeds as null and void and for consequential reliefs. 4. The Respondent nos. 9, 10 and 11 filed their written statement disputing the claim put forward by the said Respondents. They admitted that the property originally belonged to late Venkatesh and Satyawati, but, however, claimed that they were owners of the suit property on the ground that the Respondent nos. 1 to 9 were given their share in the ancestral property at the time of their marriage. They also admitted that the said Venkatesh and Satyawati, had -5- one son Upendra and six daughters and, according to them, as the daughters were given their share in the family properties as dowry at the time of their marriage, they had no right to the suit property. 5. The Appellants also filed their written statements disputing the claim put forward by the said Respondents and, inter alia, prayed that the Respondents should be directed to settled their dispute. The learned Trial Judge by Judgment and Decree dated 20.03.2004, decreed the suit filed by the Respondent nos. 1 to 9 and, inter alia, held that the Deed of Succession is null and void and the Sale Deed dated 15.09.1996 and 09.09.1996 were also declared null and void. The entries in the name of the Appellant was also declared to be null and void and the Appellant was directed to remove the sign board etc., in the suit property as well as restrained by permanent injunction from, inter alia, interfering with the suit property besides other reliefs. Being aggrieved by the said Judgment, the Appellant preferred Regular Civil Appeal no. 88/2005 and by Judgment dated 05.07.2007, came to be rejected. The Lower Appellate Court whilst passing the impugned Judgment has confirmed the findings arrived at by the learned Trail Judge whilst decreeing the suit filed by the Respondent nos. 1 to 9. 6. Being aggrieved by the said Judgment, the Appellant has preferred the present Appeal. 7. Shri Thali, learned Counsel appearing for the Appellant has assailed the impugned Judgment on three counts. The first contention is that the suit was bad for non-joinder of necessary parties and, as such, the question of decreeing -6- the suit filed by the Respondent nos. 1 to 9 cannot be sustained. The next contention is that the rights of the Respondent nos. 9, 10, 11 and 12 is to the extent of one-seventh share in the suit property and, as such, the Sale Deed is to be read down to the extent of one-seventh share in respect of the suit property. The third contention is that permanent injunction could not be granted in favour of the Respondent nos. 1 to 9 as they were only co-owners of the suit property and no injunction can be granted against the other co-owners of the suit property. 8. With regard to the first contention of the learned Counsel appearing for the Appellant, the Lower Appellate Court whilst deciding the said point for determination has come to the conclusion that the Appellant in their written statement have failed to raised such contention whilst opposing the suit filed by the Respondent nos. 1 to 9. Apart from that there are no particulars given by the Appellant as to which persons according to them are also liable to be parties to the suit. As such, the question of raising such contention before the Lower Appellate Court would not arise as the Court held that the suit was for preservation. Considering the facts and circumstances of the case and the nature of the reliefs sought by the Respondent nos. 1 to 9, there is nothing on record disclosed by the Appellant to the effect that any party not impleaded was a necessary party to the suit. On perusal of the evidence on record, no such suggestion was even put by the Appellant to the witnesses examined in the proceedings. Hence, the contention of the learned Counsel appearing for the Appellant to the effect that the suit is bad for non-joinder of necessary parties, cannot be accepted and, as such, no substantial question of law on that count arise in the present Appeal. -7- 9. With regard to the next contention of Shri Thali, learned Counsel appearing for the Appellant that the Sale Deed executed in favour of the Appellant should be read down to the extent of the share of the Respondent nos. 10, 11 and 12 is concerned, I find that no such contention was raised by the Appellant before the Courts below. Admittedly, the shares of the parties are not determined in appropriate proceedings and unless and until such shares are determined, the question of any party claiming a specific share in each of the properties of the estate leaver, does not arise at all. There is no dispute that the common ancestor of the parties is said Venkatesh Upendra Kamat and his wife who are the estate leavers and the suit property is one of the properties belonging to the said deceased. Under Article 1737 of the Portuguese Civil Code, the inheritance comprises of all the properties, rights and obligations of the deceased which are not merely personal or excluded by disposition of the said deceased or by law. Under Article 2011 of the Portuguese Civil Code, the transmission of the ownership and possession of the inheritance to the heirs whether instituted or legal, takes place from the moment of the death of the estate leaver. Under Article 2015 of the Portuguese Civil Procedure Code, where many persons are entitled simultaneously to the same inheritance, their right shall be indivisible both in respect of possession as well as ownership, as long as the partition has not been effected. 10. Considering the said provisions of law, the right of inheritance consists of all the properties of the estate leaver and such rights are indivisible both in respect of possession as well as ownership as long as the partition has not been effected. In the present case, as no partition proceedings have been effected nor -8- have the shares in each of the parties to the properties have been determined in appropriate proceedings, it cannot be accepted that the Respondent nos. 10, 11 and 12 have one-seventh share in the suit property as claimed by the learned Counsel appearing for the Appellant. The shares of the respective heirs will have to be determined in appropriate proceedings and unless such exercise is carried out, it is not possible to ascertain the specific share of each of the heirs of the estate leaver in each of the properties. Apart from that, the said contention was admittedly not raised before the Courts below and, as such, no substantial question of law can arise in the present Appeal on such count. The Courts below have rightly found that the Respondent nos. 10, 11 and 12 were not entitled to execute the Sale Deed as the remaining Respondent nos. 1 to 9 also had a right, title and interest therein. Such concurrent findings of fact on the basis of the material on record, cannot be assailed in a Second Appeal under Section 100 of the Civil Procedure Code. The second contention of the learned Counsel appearing for the Appellant, as such, deserves to be rejected. 11. With regard to the third contention of the learned Counsel appearing for the Appellant that injunction cannot be granted against the other co-owners, I find that the Appellant has no title or interest in the suit property as the Sale Deed executed in their favour have been declared as null and void by the Courts below. As such, the Appellant cannot claim that he is the co-owner of the suit property. No co-owner in fact has raised such contention before this Court nor have the Respondent nos. 9 to 12 assailed the Judgments passed by the Courts below on that count. As such, it is not open to the Appellant to raise such contention before this Court. This contention was also not raised before the Lower Appellate Court by -9- the Appellant. Hence, I find that there is no substantial question of law which arises in the present Appeal which requires consideration by this Court. 12. In view of the above, I find no merit in the above Appeal and, as such, the same stands dismissed. F .M. REIS, J. arp/*