The indivisibility of the right to possession and ownership under Article 2015 of the Portuguese Civil Code influenced the court's decision in declaring the sale deed null and void.

1. Heard Mr. Bhobe, learned Counsel appearing on behalf of the appellants.

2. This Second Appeal has been preferred against the judgment, order and decree dated 16/06/2004 passed by the learned Additional District Judge, South Goa at Margao (First Appellate Court) in Regular Civil Appeal No. 173/2000. The said Regular Civil Appeal was, in turn, filed against the judgment, order and decree dated 31/08/2000 passed by the learned Civil Judge, Junior Division, Margao ('trial Court') in Regular Civil Suit No. 112/1982/F. The said suit as well as the said First Appeal have been dismissed by the concerned Judges.

3. The present Second Appeal was admitted on following substantial question of law:

“Whether in view of Article 2015 of the Portuguese Civil Code, respondents no. 5 and 6 can be said to have legally purchased a specific plot of land admeasuring 338 square metres from the suit property which was indivisible and belonging to the same inheritance as long as the partition has not been effected?”

4. The appellants were the plaintiffs and the respondents were the defendants in the said Civil Suit. The parties shall, hereinafter, be referred to as per their status in the said suit.

5. The plaintiff had filed the said suit for a declaration that the plaintiff's property bearing survey no. 8/32 continues to exist as one and undivided property notwithstanding the fake claim put up by the defendants no. 5 and 6 in respect of the area admeasuring 338 square metres, from the suit property. A permanent injunction to restrain the defendants, their servants, representatives, labourers or any one claiming through them from in any way interfering with or doing any construction in the suit property and a mandatory injunction directing the defendants to fill up the manhole so as to level the ground of the suit property before onset of monsoons, were also sought.

6. During the pendency of the suit the original plaintiff died and her legal representatives came on record. The case of the original plaintiff was as follows:-

The plaintiff and defendants no. 1 to 4 are the owners in possession of the suit property namely “Dongorim” situated at Dongorim, Navelim, Salcete, Goa. The said property bears Survey No. 8/32 of village Navelim. It admeasures 1900 square metres. The Survey record stands in the name of late Joao B. Gomes, who was the father of the plaintiff. The plaintiff is the only daughter of said Joao Gomes out of the first marriage and is the legal heir to the inheritance of late Joao B. Gomes. The suit property all along has been in lawful, peaceful and public possession of the plaintiff and the other co-owners. Defendants no. 5 and 6 advanced some money to defendants no. 2 and 3 with a view to purchase the suit property without prior approval and consent of the other co-owners including the plaintiff and in pursuance of some shaddy agreement, defendants no. 5 and 6 illegally trespassed the suit property. The said sale of the plot admeasuring 338 square metres under the Sale Deed 23/04/1981 in favour of defendant no.5 by Domnic Valeriano D'Silva is ab-initio, illegal and void and, therefore, defendants no. 5 and 6 are not entitled to claim any right, title or interest in respect of any part of the said Survey No. 8/32. The suit property being common property, cannot be sold or alienated or disposed of by some co-owners only by causing prejudice to the other co-owners, including the present plaintiff. Hence, the suit.

7. Defendants no. 1 to 4 did not contest the said suit.

8. By way of written statement, the defendants no. 5 and 6 alleged as follows:- The suit is barred by law of limitation. It is false that the original plaintiff is the owner in possession of the suit property. They purchased part of the property of the plaintiff by doing all formalities including publication of public notice, agreement for sale, final sale deed after fully satisfying that no other person has any right, to the plot purchased by them. They denied tha