The main legal point established in the judgment is that the heritability of a Mundkar's right in a dwelling house under the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, extends to the member of the family and the legal successor meeting specific residency requirements.

F.M. Reis, J.

Both the above Writ Petitions were taken up for consideration in terms of Rule 7 Chapter 1 of the Appellate Side Rules of 1960 and the subsequent directions of the Hon'ble Chief Justice, to place the matter before the Division Bench.

2. We have heard Shri S. D. Lotlikar, learned Senior Counsel appearing for the Petitioners in Writ Petition no. 266 of 2008 and Shri J. P. Mulgaonkar, learned Counsel appearing for the Petitioner in Writ Petition no. 457 of 2010 as well as Shri Sudin Usgaonkar, learned Counsel appearing for the Respondents in Writ Petition no. 457 of 2010 and Shri C,. A. Coutinho, learned Counsel appearing for the Respondent in Writ Petition no. 266 of 2008.

3. We have heard the above Petition only to decide the issue regarding the extent of heritability of a right of a mundkar in a dwelling house in terms of Section 3 of the Goa, Daman and Diu Mundkars (Protection from Eviction) Act, 1975, (hereinafter referred to as 'the said Act of 1975').

4. Shri S. D. Lotlikar, learned Senior Counsel appearing for the said Petitioners, has submitted before us that a Mundkar is defined under Section 2(p) of the said Act of 1975 wherein, he also includes a member of the family. The learned Senior Counsel has thereafter taken us through the definition of a member of the family under Section 2(n) of the said Act of 1975 and pointed out that the member of family means only his spouse, son, unmarried daughter and includes father, mother, grandson, widowed daughter, widowed granddaughter, solely dependent on the Mundkar for maintenance. The learned Senior Counsel as such pointed out that even though Section 3 of the said Act of 1975 provides that a right of the Mundkar in a dwelling house is heritable such, heritability is to be restricted only to the member of the family as defined under the said Act. Learned Senior Counsel further submits that though as per the provisions of the said Act, there is a right conferred to the Mundkar to purchase the dwelling house, the price is as on the appointed date, though, there is no period within which such right can be exercised by a Mundkar. Learned Senior Counsel further pointed out that in such circumstances, Mundkars who exercise such rights can get the dwelling house transferred for illusory amounts from the Bhatkar. Learned Senior Counsel further submits that in case the heritability is extended in terms of the law of succession as in force in the State of Goa, it would lead to an absurdity and anomalous situation, as such right would devolve not only upon the descendants of the Mundkar but even on the ascendants, brothers and cousins and ultimately to the State. Learned Senior Counsel as such submits that giving such a broad and extensive right of heritability would lead to a situation wherein there could be multiple dwelling houses and lead to an absurd situation. Learned Senior Counsel further submits that the right of mundkarship is essentially a protection from being evicted from a dwelling house and, as such, the question of granting such right to persons who are not entitled to be Mundkars during his lifetime, would be an absurd situation. Learned Senior Counsel has thereafter taken us through the relevant provisions of the Mundkar Act and pointed out that the heritability as provided under Section 3 of the said Act of 1975, should be laid down to mean that such right can devolve only on the descendants who are the members of the family. Learned Senior Counsel has further pointed that the Judgment of the learned Single Judge, reported in 2001(2) BCR 247 in the case of Joaquim D' Costa & Ors. vs. Anthony D' Souza alias Joseph Anthony Ignatius Alex Genezano D' Souza & Ors, has taken an erroneous view that irrespective as to whether the heir is residing in the dwelling house or not is entitled to inherit the right of mundkarship.

5. Shri Sudin Usgaonkar, learned Counsel appearing for the Respondents, has also supported the submissions of learned Senior Counsel Shri