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2019 Supreme(Bom) 1722
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
DAMA SESHADRI NAIDU, J.
Egidio Joaquim Fernandes (since deceased) Rep. by his legal heirs and Others – Appellants
Versus
Melasquina Colaco and Others – Respondents
Second Appeals Nos. 139, 140 of 2004
Decided On : 04-12-2019
Advocate Appeared:
For the Appellant : Sudesh Usgaonkar.
For the Respondent: M.P. Almeida.
Headnote:
Civil Procedure Code - Section 9 - Order 21 - Trial Court – Claim of compensation – Jurisdiction – Initially Inventory Court rejected the Second Branch’s plea - But soon thereafter, the Second Branch filed Suit - Amongst other things, it claimed exclusive right, title, and possession over the suit property on the grounds that the Second Branch ousted the First Branch from the property. Then, the Second Branch produced the plaint before the Inventory Court. According to the Second Branch, then the Inventory Court revised its earlier orders and held that these three items were litigious. At any rate, the Court proceeded with the adjudication - In fact, in the inventoried proceedings, the First Branch bid the litigious properties in the auction held - In the partition that followed, based on the auction, the three items were allotted to the First Branch, and this partition was covered by a decree recorded at Folio of the decree has become final – Held, Of course, the Second Branch has argued about the mortgage, too. It is, in fact, a question of fact, requiring no answer in these second appeals - Yet, for the sake of completion, let me address that. The alleged mortgage was in 1938; the deed was styled as ante-nuptials agreement. It is said to be a customary arrangement amongst the Goan Christens, pre-independence - I have gone through the document - In fact Second Branch has asserted that the document, a composite one, witnesses a usufructuary mortgage, but it has not. The recitals are otherwise. If ever, it is a simple mortgage - Second Branch maintains that the mortgagee was the Second Branch’s son-in-law and that he assigned his right in the mortgage to the very Second Branch. So the Second Branch alone is said to have continued to enjoy the properties, to this day. The Second Branch’s contention in this regard is two-fold: First, it contends that so long as the property remains unredeemed, the First Branch cannot make it a part of the joint family property to be partitioned, for the First Branch has no subsisting right over that property. Second, in the alternative, it also maintains that if at all the First Branch wants to claim any right over the property, it must first get the property redeemed from the mortgagee’s assignees, that is the Second Branch, and then stake a claim. I am afraid neither plea could be sustained - True, the First Branch could have the decree under the Inventory Proceedings enforced or executed, for example, under Article 457 of the Portuguese Civil Code. Instead, the First Branch has chosen the convoluted, time-consuming, masochistic mechanism of filing a fresh suit. This self-flagellation called the original proceeding is both tortuous and torturous – Appeal dismissed
JUDGMENT :
DAMA SESHADRI NAIDU, J.
Introduction:
1. A common ancestor dies, leaving behind two branches of successors-one through his first wife and the other through second wife. His death opens succession. The first batch takes out inventory proceedings. About a couple of immovable properties, the second branch pleads exclusive possession, both under ouster and a mortgage with possession. First, the Inventory Court declares the properties as litigious but decides on their apportionment. The second branch sues for a declaration that those items of properties belong to it; the first branch sues for recovery of possession. Both before the Trial Court and before the First Appellate Court, the second branch loses. So these second appeals.
Factual Background:
2. One Avelino Fernandes was the family’s common ancestor. During his lifetime, he married Santana and had three children: one son and two daughters. When his first wife, Santana, died, he married Escolastica Caeiro. Through her, he had one son and one daughter. Avelino Fernandes died in 1945, his first wife in 1911 and second wife in 1965. Indeed, the children of the Second Branch as well as those of the First Branch, later, married and had their own children.
3. Soon after the death of Avelino and his two wives, the two branches, that is the children of Avelino Fernandes wanted the properties partitioned. In 1967, the First Branch initiated Inventory Proceedings No. 21045/1967. Initially, it did not show the suit property (three items of immovable property) in the inventory. But later, in 1972, through a supplementary list the First Branch made these properties a part of the inventory. Then, the Second Branch, the appellants, objected to it. According to them, the property, as the appellants' counsel puts it, lies beyond the common ancestors' inheritance.
4. Initially, the Inventory Court rejected the Second Branch’s plea. But soon thereafter, the Second Branch filed Suit No. 6 of 1974. Amongst other things, it claimed exclusive right, title, and possession over the suit property on the grounds that the Second Branch ousted the First Branch from the property. Then, the Second Branch produced the plaint before the Inventory Court. According to the Second Branch, then the Inventory Court revised its earlier orders and held that these three items were litigious. At any rate, the Court proceeded with the adjudication. In fact, in the inventario proceedings, the First Branch bid the litigious properties in the auction held on 14.02.1977. In the partition that followed, based on the auction, the three items were allotted to the First Branch, and this partition was covered by a decree, dated 22.12.1978, recorded at Folio 332 of the Inventario No. 21045/67. The decree has become final.
5. The members of the First Branch on the one hand and those of the Second Branch on the other have a common interest, within each branch there is no conflict of interest, to be explicit. Therefore, instead of referring to them individually, I refer to the children and the grandchildren through the first marriage as the First Branch and those through the second marriage as the Second Branch. True, even pending the litigation, some have died, and some have been added as a result. But I am referring to the branches compendiously.
Procedural Background:
6. To enforce the decree, dated 22 December 1978, the first Branch filed Special Suit No. 6 of 79. In 1982, the Trial Court clubbed both the suits - SCS No. 6 of 1974 and SCS No. 6 of 1979 and allowed the parties to lead common evidence. Eventually, through separate judgments, it decided both the suits. To be specific, through judgment, dated 30.3.1996, it dismissed SCS No. 6 of 1974 filed by the Second Branch and on the same day, through another judgment, it allowed SCS No. 6 of 1979 filed by the First Branch.
7. If we confine ourselves to the suit filed by Second Branch, the Second Branch filed Appeal No. 15 of 1997. The Principal District Court of South Goa, at
