1. This appeal throws challenge to the judgment and order dated 10th June, 2003 passed by the Additional District Judge, South Goa, Margao in RCA No.165/2001 for quashing the judgment and decree of IIIrd Addl. CJSD, Margao effecting division of the properties amongst the plaintiff and the defendant in Special Civil Suit No.270/1995/III.

2. The appellant was the defendant in the said suit instituted by his wife Filomina Fernandes - the respondent herein, for the dissolution of their marriage and separation of their properties and assets. The appellant disputed the claim for divorce made by the respondent in the said suit, and as and by way of counterclaim sought divorce with a specific pleading that he remained entitled for a decree of divorce under Article 4 sub clause 4 and 5 of law of divorce in Chapter II of Portuguese Civil Code. Additionally, he made counterclaim for the division of assets of wedlock (Casal) in terms of Article 26 and 27 in Chapter II of Portuguese Civil Code. In his written statement to the said suit, the appellant gave elaborate account of properties held by them including the properties given by the parents of the respondent plaintiff at the time of marriage, the properties given by him to the respondent, the properties given by way of dowry to their daughter at the time of marriage and the monies given by their son-in-law Mr. Francisco Xavier Fernandes.

3. It appears that the respondent did not give reply to the counterclaim and failed to appear before the Trial Court. As a consequence thereof, the learned Trial Court proceeded to allow the counterclaim of the appellant on the basis of the evidence of the appellant adduced in form of an affidavit at Exh.13 as per Order XIX, Rule 1 of CPC. As a sequel thereto, the learned Trial Court dissolved the marriage between the appellant and the respondent, and allotted the properties enlisted amongst the appellants and the respondents.

4. This allotment of the properties and not the dissolution of the marriage was challenged by the respondent herein in Regular Civil Appeal No.165/2001 preferred before the District Judge, South Goa at Margao. After hearing the parties, the learned District Judge, South Goa at Margao gave negative finding in respect of the following point :

“Whether the assets and the properties of the spouses can be ordered to be partitioned in view of Article 26 of Law of Divorce ?” and proceeded to quash the order of the learned Trial Court allotting the properties amongst the plaintiff and defendant in the said suit.

5. According to the Ld. Advocate Teles for the appellant, the substantial questions of law framed are not properly worded, and is, therefore, seeking answer to the following remodelled substantial questions of law arising in the present appeal :

(i) Whether Article 26 of Law of Divorce, 1910 provides the exclusive remedy for partitioning the properties amongst the spouses through inventory proceedings and (ii) whether the counterclaim in divorce suit is impermissible?

6. In his view, Article 26 of the Law of Divorce, 1910 is not the exclusive remedy for partitioning the properties amongst the spouses and the learned Trial Court was right in making division of the properties and allotting them amongst the plaintiff and the defendant in the said suit for dissolution of marriage. As regards the grant of the counterclaim made under Article 15 in Chapter II 'of contested divorce' of Portuguese Civil Code, he submitted that if the Court has power to entertain the counterclaim under the said Article of Portuguese Civil Code then the Court would not be powerless to grant relief of separation of properties irrespective of procedure provided under Article 26 of the said Code, more particularly so when the particulars of the properties were elaborately given in the written statement/ counterclaim and the contesting party the plaintiffs had abandoned the proceedings. In order to augment his submission, he cited judgments re