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1993 Supreme(Bom) 127
IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
M.K. Mukherjee, C.J. G.D. Kamat, JJ.
Smt. Motibai Sarvotham Pai Cano w/o Sarvotham Pai Cano others.... Appellants.
Versus
Smt. Maria Elsa do Perpetuo Socorro Mota another.... Respondents.
Letters Patent Appeal No. 11 of 1990, decided on 3-8-1993.
Advocates appeared :
S.D. Lotlikar, for the appellants.
B. Reis, S.A. with William Gomes, for the respondents.
M.S. Usgaokar, S.A.A., the Court.
Headnote:CIVIL CODE (PORTUGUESE)
Article 1417-Owelty-Effect and consequences of non-payment of.
A look at the provision of Article 1417 clearly suggests that for failure to pay owelty money the creditor is entitled to legal interest from the date of judgment until recovery and is further entitled to register a sort of mortgage in respect of the property when demand is not made. It is therefore clear that failure to pay money does not bring about the reversion of the property. But, in a case where the demand is made by the person who is entitled to receive owelty and if the same is not paid within three days of the notice of demand, the allotment becomes ineffective and the property be put to re-auction and at that re-auction the defaulting party is not entitled to participate and offer any bid.
Article 1417 - Owelty-Subject of.
Principles of owelty identical under Portuguese Code and Indian Jurisprudence yet nothing codified in so far as effect of non-payment of owelty under Indian system unlike Portuguese Code where situation is different.
Article 1574-Applicability of.
The High Court cannot except the contention for Article 1574 is found in Chapter VIII of the Civil Code (Portuguese) which deals with contracts of purchase and sales in general. Provision relating to inventory proceedings in the Code are found elsewhere in a different Chapter. Strictly speaking, the partition of estate is between the legal heirs and other interested persons like donees, legatees, etc. When the properties cannot be partitioned by metes and bound, auctIons are held and they are restricted to parties, namely legal heirs and other interested parties. Only those parties are allowed to bid and no outsider is permitted to participate in those proceedings. This being the position, High Court is afraid that Chapter VIII of the Civil Code which is a general Chapter relating to contracts of purchase and sale cannot be applied to Court auctions in inventory proceedings.
There is another way of looking at it. It ha, been already highlighted, earlier the fact of non-payment of owelty money by M. The right of a party is if the demand is made for payment of owelty and the some is not paid within three days, the property can be re-auctioned, in which case the defaulting party is debarred from participating in the fresh auction. When the demand is not made there is no revision of the property and the creditor party is entitled to only interest or get a mortgage registered thereon. This being the position, the present case must come within the latter part, that is, J and now his heirs, would be only entitled to recover owelty alongwith interest for different reasons, but it is not possible to accept the contention that J or his heirs are entitled to retain the property in view of the provisions of Article 1574, which is not applicable to inventory proceedings.
Article 1574-Receiver-Power of in snits and cabeca de casal in inventory proceedings- Distinguished.
Powers of receiver in suits, and a cabeca de casal (administrator) in inventory proceedings, are similar under that law, but these two institutions are different. For example that is a receiver under our system of laws, is "depositario", under the Porutguese law, but in inventory proceedings the person administering the estate of the dead person is called cabeca de casal. Therefore, even if it is held for the sake of argument, that receiver can create a valid lease to go beyond termination of the receivership, these is no analogy that cabeca de casal can do so as to jeopardize the right of a person to when such a property is to be allotted.
GOA, DAMAN & DIU BUILDINGS (LEASE, RENT AND EVICTION ACI, 1968.
Section 2(p)-Benefit of definition of tenant-Not possible to exted order Rent Act-A the tenant in the circumstances of the case.
The lease in favour of original deceased tenant S was made in 1959 under Decree Law No. 43,525 and he continued to be the tenant of J at all times, the suit for eviction was filed in June, 1968 and the Rent Act was admittedly brought into force on 1st October, 1969, when the suit was pending.
Though regard is required to be had to the provisions of the Rent Act in the matter of eviction and fixation of fair rent under proviso to Section 59 the High Court is afraid that the original tenant S and now his heirs cannot get the benefit of the definition of tenant under the provisions of the Rent Act. Held that on the facts of this case it is not possible to extend the benefit of definition of tenant under the Rent Act to the appellants.
Sections 2 (P) and 59-Decree Law No. 43, 525-Lease made under in 1959-Eviction suit filed in 1968-Pending-Rents Act came into force-Whether original tenant and his heirs can get the benefit of defaulter of tenant under the provisions of the Rent Act, 1968.
Section 59-Repealed law-Proceedings instituted under-Effect of.
The proceedings be governed by repealed law-Repeal and savings.
OWELTY
See Civil Code (Portuguese) Article 1417.
PORTUGUESE LAW
Civil Procedure Code (Portuguese)-Article 1417 payments of owelty -Effect of.
Decree Law No. 43, 525-Article 16-Creation of Lease in 1959-Lesser in possession year property after death of his mother-Lesser not baring any share in this house property-Creation at lease was not essented by other Co-sharers-Whether lease valid.
2. To appreciate the controversy between the parties and in the appeal reference is needed to the background of the litigation. Antonio Joaquim Mota was the owner of a property bearing matriz No.512 consisting of a house. Upon his death, inventory proceedings were launched and in the final order that emerged in those proceedings, his widow Ema Elvira Issura Rangel was allotted 5/8ths share and his sons Filomeno and Victor and daughter Maria Elsa do perpetuo Socorro Mota were allotted 1/8th share each. The third son Jose Mario Bailon Mota, for short `Jose Mari, was left out insofar as this house property is concerned. During her life-time, Ema Elvira Issura Rangel made a gift deed in favour of Jose Mario, gifting her disposable quota corresponding to 50% of her share. Upon the death of Ema in the year 1955, in the inventory proceedings, the daughter Maria Elsa, took in auction 5/8ths share being the highest bidder in respect of the said property. Regard being had to the highest bid of Rs.40,000/- in the final chart drawn up by the inventory Court, Maria Elsa had to pay a sum of Rs.23,333.91 p. to Jose Mario. The result was Maria Elsa became the owner of 6/8ths in respect of the house property and the remaining 1/8th share was left with the brothers Victor and Filomeno.
3. Sometime in the year 1959, Jose Mario created a lease in favour of the original first defendant Sarvotham Pai Cano in respect of a part of the house, upon consideration of rent of Rs.70/- per month. It appears that Victor and Filomeno had been out of India during all this time and Maria Elsa was married and had been residing in Calcutta. Sometime in the year 1962, when proceedings were taken in respect of the partition of the estate of Ema, aforementioned Jose Mario was appointed as `Cabeca de Casal' (administrator). As mentioned earlier, the proceedings in inventory culminated by final order on 7th June, 1965.
4. In June, 1968, Maria Elsa, presently respondent No.1 and her husband Clement, respondent No.2, instituted Regular Civil Suit No.111/68 against Jose Mario and his tenant Sarvotham for a declaration in the first place that the lease created by Jose Mario in favour of Sarvotham is null and void and that way not binding upon her, with a further direction to deliver vacant possession of the part let out to Sarvotham with a further prayer to direct Jose Mario to pay rents unduly collected from June 1965 onwards, until the possession is handed over to him.
5. The suit was contested by both Jose Mario and Sarvotham. In a nut-shell, the defence was that the suit is not maintainable and also misconceived, for the reasons that Maria Elsa is not the legitimate owner and possessor of the same and in any case she is not entitled to the reliefs because she has failed to pay the owelty money corresponding to Rs.23,333.91p. as directed by the final order in the inventory proceedings, that upon failure to pay the owelty money Jose Mario is entitled to retain the possession. It was also the case of tenant Sarvotham that Maria Elsa cannot recover possession from him as the lease had been validly created by Jose Mario in his favour.
6. Based upon the pleadings and issues raised, the trial Court on 4th August, 1988, decreed the suit in favour of Maria Elsa. The trial Court decree held that though the lease created by Jose Mario in favour of Sarvothem was valid, but then, as by the order of 7th June, 1965, once the inventory proceedings in respect of the estate of Ema culminated and Maria Elsa took 5/8ths share in the auction and despite her failure to pay the owelty money to Jose Mario, the lease in fav
