The main legal point established in the judgment is that the question of whether Section 2184 of the Portuguese Civil Code was impliedly repealed did not arise in the case.

1. The Second Appeal was admitted on 1st April 2004 on the following substantial questions of law:

(a) Whether provisions of Section 2184 of the Portuguese Civil Code still continue in force and are available in the facts of the case, more particularly as the Deed of Exchange was executed on 24/12/1971 after the Transfer of Property Act, 1954 was brought in force in Goa?

(b) Whether partition which is merely severance of joint status cannot be effected orally and has necessarily to be a written document?

2. I have heard the learned Counsel on both sides at some length. Mr Nadkarni for the appellants, the original defendants, has constructed, if I might say so, a compelling case on the questions of law as framed. The argument is sophisticated and relentlessly logical. The edifice of his argument is, however, considerably weakened, as we shall see, by the serious lacunae in the material adduced by the defendants. This has a direct, albeit possibly unintended and, from the defendants’ perspective, an unfortunate consequence when it comes to these questions of law.

3. For the reasons that follow, I have not been persuaded to hold for the defendants. Mr Ramani’s answer for the respondents, the original plaintiffs, is typically short, narrowly focussed and furnishes a complete answer.

4. First, a brief background culled from the record. The appellants are the original defendants in Regular Civil Suit No.146 of 2000. This was originally filed in 1990. It came to be renumbered much later. The suit was decreed on 16th April 2002 by the Civil Judge, Junior Division, Vasco da Gama, Goa.

5. The suit itself was for partition. The 1st plaintiff and the 1st defendant are brothers, the 1st defendant being the elder. The 2nd plaintiff and the 2nd defendant are their respective spouses. The plaint alleged, at its forefront in paragraph 2, that by a Deed of Exchange dated 24th December 1971, the plaintiffs and defendants exchanged some of their land holdings. These are said to have been described fully in the Deed of Exchange. Consequently, according to the plaintiffs, the defendants acquired a moiety in the property of the plaintiffs known as ‘Dactolem’, some 360 sq mtrs in area, at Mangor Hill. The plaintiffs, in turn, and as part of this exchange, acquired a one-half share in two properties of the 1st defendant: about 780 sq mts on the western side of ‘Dactolem’, and another property Aforamento within plot No. 59, both at Mangor Hill. It was said that there existed two buildings, not owned by the defendants, and the Deed of Exchange stated that these two buildings equally belonged to the two plaintiffs and the two defendants. Descriptions of the three properties are in paragraph 3. It is said that these properties and two buildings were, at a time, jointly possessed by the parties. In paragraph 3, the plaintiffs also expressed an intention to divide and partition the properties by metes and bounds, but said such a partition was not possible because the defendants refused. Paragraph 4 makes reference to an Advocate's letter dated 7th October 1989 from the plaintiffs, to which there was no reply. Paragraph 6 describes the properties in better detail.

6. The plaintiffs allege the cause of action accrued to them around end-October 1989 when the defendants failed to effect a partition pursuant to the legal notice dated 7th October 1989 and, hence, it is alleged that the suit is not barred by limitation. The plaintiffs did not claim that any actual partition had been earlier effected.

7. It is on this that the plaintiffs sought the following relief:

“(a) That by a decree of this Hon’ble Court the aforesaid three properties fully described in para 6 above along with the two buildings be partitioned in metes and bounds in equal proportion between the plaintiffs and the defendants.”

8. From this, it is clear that the claim to partition by metes