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In the High Court of Bombay at Goa
THE HONOURABLE MR. JUSTICE R.M. SAVANT
Shri Antonio Agostinho Gomindes & Others
Versus
Shri Milagres Santana Gomindes & Another
WRIT PETITION NO. 266 OF 2004
Decided on: 07-12-2009
It would also be relevant to note that the objection raised by the respondent No. 1 was for the first time in the year 2004 and not any time earlier. In the teeth of the respondent No. 1 having suffered the Decree in the said Special Civil Suit No. 262/1996 and in the teeth of the order dated 5.11.2001, in respect of the assets, assuming that there was any irregularity in the conduct of the said proceedings in view of the fact that the respondent No. 1 having not objected till the year 2004, the irregularity, if any, would in terms of Article 202 be deemed to have been cured. As rightly contended by the Senior Counsel, now it is too late in the day for the respondent No. 1 to question the said Inventory proceedings after so many orders have been passed and the respondent No. 1 being Cabeca de Casal, being very much aware of the said orders. Therefore, in Court’s view the proceedings as filed were in consonance with Article 1439 and merely because they were given the said two different file numbers, would not make the proceedings irregular much less null and void. The Appellate Court appears to have been merely swayed by the fact that two separate file numbers were given but lost sight of the fact that both the petitioners and the respondent No. 1 had applied for continuation in respect of the original file in Inventario No. 221/1940 and also losing sight of the fact that the said file No. 221/2004 was called from the Archives and was made part of the present Inventory Proceedings. In view if the order of the Appellate Court is allowed to remain, it would cause grave prejudice to the petitioner in as much as the proceedings have reached the stage of auction sale without any demur from the respondent No. 1.
In that view of the matter the impugned order dated 28.4.2004 passed by the appellate Court is required to be quashed and set aside. The petition is required to be allowed in terms of prayer Clauses (a) and (b) by making the Rule absolute accordingly with parties to bear their respective costs.
Portuguese Civil Code - Articles 1430, 1431, 1432, 1436, 1789, 1790, 202, 203 and 205 - Inventory Proceedings - Suit also fixed for declaration and pursuant injunction - By impugned order appellate Court found inventory proceedings irregular and contrary to provisions of Article 1432 of Code and declared same as null and void - Petition against - Suit filed by respondent No. 1 being dismissed and decreed which operates as res judicata against respondent under Article 1436 - Impugned order set aside - Petition allowed.
Key Points: - The judgment discusses whether separate file numbers (146/1992 and 173/1999) invalidate the continuation of Inventory Proceedings originally started under 221/1940, and holds that renumbering does not render proceedings null and void. (!) (!) - It analyzes the effect of a Civil Court decree (Special Civil Suit No. 262/1996) on disposable content and its applicability to Inventory Proceedings, rejecting grounds to annul the proceedings and treating decree findings as res judicata in this context. (!) (!) (!) (!) - The Court determines that the Appellate Court’s order declaring the Inventory Proceedings null and void cannot stand; the proceedings should be allowed to continue in conformity with Article 1430-1432, with final asset listings and prior final orders preserved. (!) (!) (!) - The time-limited objection by Respondent No. 1 to the disposability and listing of assets, raised only in 2004, is deemed barred by delay and the absence of timely objection; earlier orders remained unchallenged. (!) (!) (!) - The need to refer issues arising in the Inventory Proceedings to the Civil Court under Article 1436 when they involve civil questions is acknowledged, but not to nullify ongoing proceedings where earlier steps were valid. (!) (!) (!) - The final quashing and setting aside of the Appellate Court’s order is ordered, allowing the Petition to proceed and directing continuation in the original Inventory Proceedings. (!) (!) (!)
By the above Petition filed under Article 227 of the Constitution of India, the Petitioners take exception to the Order dated 25.03.2003 passed by the learned District Judge, Margao, by which Order, the Appeal filed by he Petitioners being Misc. Civil Appeal No. 44/2003, came to be allowed and the Judgment and Order passed by the learned Civil Judge, Senior Division, Margao, dated 25.03.2003 in Inventory Proceedings no. 146/92/C came to be set aside.
2. Some of the facts which are necessary to be cited for the adjudication of the present Petition are stated thus :
The present Inventory Proceedings have their genesis in the Inventory Proceedings bearing no. 221/1940. The said Inventory Proceedings were commenced on the death of one Agostinho Gomindes, In the said Inventory Proceedings, an auction was held on 26.08.1940 in respect of two assets which were enlisted. Maria, the wife of said Agostinho Gomindes, took item no.1 and item no.2 which was enlisted in the said proceedings was auctioned in equal shares amongst the three children. Thereafter, the allotment was made absolute by Order dated 27.09.1940. It appears that in 1942, the said Maria Gomindes got married in second nuptials with one Roque Miguel Gomindes and they had two children. The said Roque expired in the year 1958 and no Inventory Proceedings took place on his death. It appears that the said Maria died in the year 1992 upon which, an application was made by Lourdes Gomindes on 29.09.1992, inter alia stating that the charge of the Head of the Family should be given to his elder brother Milagres Gomindes. The said Milagres was appointed as the Cabeca de Casal by the Court. Subsequently, the said Milagres by a statement made on oath, submitted the list of heirs and undertook to produce a list of assets within thirty days. On 22.06.1994, the said Milagres Gomindes made an application under Article 1430 of the Portuguese Civil Code stating that the said application be placed on record and to direct that the prior Inventory i.e. 221/1940 should proceed further incorporating the present Inventory in the prior Inventory and by serving notices to the interested parties mentioned in the statement of the Head of the Family recorded at present. On the said application, an endorsement was made on behalf of the Petitioners herein that the prior Inventory in 221/1940 is already attached in this file and that the Head of the Family has to take steps to pursue the proceedings. The said Inventory Proceedings came to be numbered as 146/1992. Thus, as it can be seen from the said endorsement, the Petitioners had accepted the position that the said Inventory Proceedings no. 221/1940 were required to be attached to the present Inventory Proceedings and further consented to the said Head of the Family to take steps to pursue the proceedings. The said Milagres, who was appointed as Cabeca de Casal, submitted the list of assets on 12.07.1995. However, grievance was made by the said Lourdes Gomindes on 11.03.1996 that Milagres had not submitted the list of assets properly and, therefore, he be directed to furnish the proper list of assets.
3. While the said Inventory Proceedings no. 146/92/C were pending, the said Milagres Gomindes filed a suit being Regular Civil Suit no. 262/96 in the Civil Court at Margao. The said suit was filed by the said Milagres and his wife for declaration and permanent injunction in respect of the suit properties. The declaration sought was in respect of the Gift Deeds, the Partition Deed and the Sale Deed dated 17.03.1981 executed by Maria Gomindes. The sum and substance of the case of the said Milagres in the suit was that the disposal made by the said Maria was beyond what she could legally dispose of in terms of the law applicable in the State of Goa. The learned Civil Judge, Senior Division, on the basis of the pleadings, framed the following issues:
ISSUES
1. Whether the plaintiffs prove that allotments in Inventario No. 221/1940 were made def
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