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2011 (5) ALLMR 257
In the High Court of Bombay at Goa
A.P. LAVANDE
Daisy Senso Alias Daisy A. Serrao
Versus
Ivorine Danslay Noronha & Others
SECOND APPEAL NO. 110 OF 2010
Decided on: 08-06-2011
Portuguese Civil Procedure Code, 1939 - Article 1753-Joint Will-Testators husband and wife not married at Goa-They executed a registered Will at Bombay-Testator born in Goa and governed by personal laws-Joint Will forbidden by law-Finding of lower Court holding Joint Will valid unsustainable-Liable to be set aside.-In so far as the finding given by the lower appellate Court that the Joint Will dated 10th October, 1980 was valid because the testators were not governed by the Family Laws or Laws of Succession applicable to the State of Goa, as the Will was registered by Joint Sub-Registrar Bombay is concerned the said finding is patently unsustainable in law since admittedly both the testators were Goan by birth. They were governed by Laws of Succession as applicable to the State of Goa. In terms of Article 1753 of Portuguese Civil Procedure Code, a Joint Will is forbidden. This being the position, the testators who were governed by Family Laws of Goa, could not have executed the Joint Will dated 10th October, 1980. Merely because it was executed in Mumbai or because Anthony Noronha and Viola were not married in Goa, the Will could not be said to be valid. The mere fact that Anthony Noronha and Viola married in Mumbai by itself would not mean that they were not governed by the Laws of Succession as applicable to the State of Goa as it is well settled that a person is governed by his/her personal laws. Therefore, the finding recorded by the lower appellate Court that the Will dated 10th October, 1980 was valid is liable to be set aside and is hereby set aside.
Civil Procedure Code, 1908 - Section 100-Law of Divorce-Articles 4 and 11-Second appeal-Validity of marriage-Decree passed in favour of plaintiffs holding second marriage invalid-Plaintiffs need not to file cross-objection challenging only finding given by trial Court regarding validity of marriage-No relief refused by trial Court to plaintiffs -Issue of validity of marriage can be re-opened in second appeal. 2008 (12) SCC 1-Relied on.-Since the decree was in favour of the plaintiffs in an appeal preferred by defendant No. 1, it was not necessary for the plaintiffs to file cross-objection challenging only the finding given by the trial Court regarding the validity of marriage between Viola and Anthony Noronha. The decree was admittedly in favour of the plaintiffs and no relief was refused by the trial Court to the plaintiffs. Therefore, in considered opinion, the objection taken by Mr. Usgaonkar that the finding of validity of marriage given by the trial Court has reached finality and cannot be reopened in second appeal, has no merit.
Civil Procedure Code, 1908 - Section 100-Second appeal-Validity of Will-Bequeathment of ownership of house-Plot purchased by wife via sale-deed-Second husband obtained loan for construction of house and fire Insurance in his name-It not confer husband’s title over said property-Will of second husband invalid to extent of said house property.- Once it is held that the marriage between Viola and Anthony Noronha was not valid in law, the necessary sequitur is that Anthony Noronha could not have bequeathed the property which belonged to Viola. Admittedly, the suit plot was purchased by Viola in her own name in the year 1976 and, therefore, the exclusive title in respect of the suit plot vested in her. Merely because she styled herself as the wife of Anthony Noronha in the sale-deed by itself would not be sufficient to confer validity on second marriage between Viola and Anthony. In so far the argument advanced that the lower appellate Court has given a finding that the suit house was constructed by Anthony Noronha by obtaining financial assistance from Shipping Corporation of India, appears to be correct, in view of the documentary evidence adduced by DW 1 is concerned, the documents produced by DW 1 suggested that Anthony Noronha had obtained loan from his employer Shipping Corporation of India and had also taken out a fire insurance policy in his name. However, these facts by themselves would not be sufficient to confer title on Anthony Noronha in respect of the suit house constructed in the plot of Viola. Since the suit plot admittedly belonged to Viola the title to the suit house constructed on the said plot would also vest in Viola. Therefore, in Court’s considered opinion, mere fact that Anthony Noronha had obtained loan for the construction of the house in the suit plot by itself would not confer title on Anthony Noronha either in respect of the suit plot or the suit house.
Heard Mr. Usgaonkar, learned Counsel for the appellant and Mr. Pereira, learned Senior Counsel for respondent nos.1 and 2.
2. By this Second Appeal, the appellant takes exception to the judgment and decree dated 2nd November, 2010 passed by Ad hoc District Judge-2, FTC-II, South Goa, Margao in Regular Civil Appeal No.171/2010 whereby and whereunder the appeal preferred by the appellant herein against the judgment and decree dated 3rd May, 2008 passed by the First Additional Civil Judge Senior Division, Margao in Special Civil Suit No.176/200/I was dismissed. Parties shall hereinafter be referred to as per their status before the trial Court.
3. Briefly, the facts relevant for disposal of this Second Appeal are as under :
Respondent nos.1 and 2 filed the above referred suit against the appellant and respondent nos.3 and 4 seeking declaration of nullity of Will, declaration of title, permanent injunction and other consequential reliefs. The case of the plaintiffs was that plaintiff no.1 was legally wedded wife of late Danslay Noronha alias Danslay Dominic Mascarenhas, who expired on 24th July, 1997 leaving behind plaintiff no.1 and his minor son plaintiff no.2. The said marriage was solemnized on 24th October, 1992 at Sacred Heart Church, Santa Cruz, Bombay. Plaintiff no.1 and Danslay lived as husband and wife till the death of Danslay on 24th July, 1997. Danslay was the legitimate son of Smt. Viola Mascarenhas alias Viola Noronha and Shri Joaquim Dominic Mascarenhas. Danslay was born on 27th December, 1962. Joaquim Mascarenhas expired in the year 1999. Even before the death of Joaquim Mascarenhas, Smt. Viola Mascarenhas and Anthony Noronha entered into a second marriage on 31st March, 1979. During the lifetime of the plaintiffs, late Viola had purchased the property in Ward no.4 bearing plot no.8 of the northern side portion of the property 'Naicalem' alias 'Santu Xenoilem Bhata' (hereinafter referred to as the suit property). After the purchase of the suit property, Viola Mascarenhas constructed residential bungalow in the suit plot known as 'Green Acres' after obtaining licence in the name of her husband Shri Anthony Noronha and requisite permissions from the authorities. Viola Mascarenhas had purchased the suit plot before her marriage to Anthony Noronha by sale deed dated 11st March, 1976 and the marriage was duly registered in the year 1979. It was further the case of the plaintiffs that even before the marriage in the year 1979, Viola and Anthony had intimate relations. After the construction of the bungalow in the suit plot, Viola and Anthony lived in the bungalow as husband and wife. Danslay Noronha also lived with foster father and mother in the said bungalow.
4. Viola Mascarenhas expired on 11th March, 1993. Thereafter, late Anthony Noronha continued to reside in the said bungalow along with Danslay till Danslay expired on 24th July,1997. Anthony Noronha expired on 17th July,2000. It was further the case of the plaintiffs that by joint Will Anthony Noronha and Viola Mascarenhas had bequeathed the suit property and other assets to Shri Danslay Noronha by duly registered Will dated 10th October, 1980. It was further the case of the plaintiffs that Anthony Noronha in July 2000 was in a critical state of health and defendant no.1 had taken possession of the suit property and taking advantage of a critical health of Anthony Noronha, she got Will dated 15th July, 2000 executed by Anthony Noronha in her favour. According to the plaintiffs, the Will was not voluntary and it was obtained by defendant no.1 fraudulently and as such, it was unenforceable in law. It was further the case of the plaintiffs that the deceased had no right to bequeath the property of late Viola. The plaintiffs being the legitimate heirs of late Danslay Noronha and moiety holder of the estate, were entitled to enjoy the entire estate including the suit property of Danslay Noronha. Based on these pleadings, the plaintiffs filed the suit seeking
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