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IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT GOA BENCH
C.V. Bhadang, J.
India Maria Matildes De Souza Daughter Of Late Vincent Machado - Appellant
Versus
Agnelo Gustavo De Souza Son Of Late Jose Caridade De Souza - Respondent
Second Appeal No. 125 of 2017
Decided On : 09-07-2018
Condonation of Delay - Inventory Proceedings - Section 442 of the Goa Succession, Special Notaries and Inventory Proceedings Act, 2012 - [I. Whether the approach of the First Appellate Court in dealing with the application of the Appellant under section 5 of the Limitation Act to seek condonation of delay in filing the said appeal was in accordance with law while construing whether or not the appellant had not disclosed sufficient cause to explain the delay in filing of the said first appeal ? II. Whether the First Appellate Court erred in dismissing the appeal as barred by limitation, though the delay for sufficient cause was explained in terms of Section 5 of Limitation Act and the law laid down by the Hon''ble Supreme Court of India in that regard? III. Whether the appeal against the Impugned Judgment dated 12/04/2017 was barred by limitation ? IV. Whether the period of limitation would commence from the date of drawing of the decree as mandated in terms of Section 442 of the Goa Succession, Special Notaries and Inventory Act, 2012? V. Whether the findings reached by both the Courts below are perverse inasmuch as they are not germane or relevant or are extraneous to the fundamental issues? VI. Any other substantial question of law that may be raised with the leave of the Court? VII. Whether the Ld. Trial Court wrongly placed reliance on the ratio laid down by this Hon''ble High Court in the case of Ranjit Satardekar Vs. Clothildes Fernandes (A.O.18 of 2006) when the same was not at all applicable to the facts presented in the instant proceedings? VIII. Whether Art. 1117 of the Portuguese Civil Code, 1867 cannot be said to remain in operation, so as to enable the husband to manage/ administer the wife/s rights to the property after such wife has been divorced by way of a judicial order? IX. Whether Art. 1189 of the Portuguese Civil Code, 1867 can be said to remain in operation, so as to enable the husband to manage/ administer the wife''s rights to the property after such wife has been divorced by way of a judicial order? X. Whether a divorced wife be compulsorily required to seek substitution of consent in terms of Art.1193 (Para Sole) notwithstanding a judicial divorce from such husband? XI. Whether an exclusion can be carved out in the term "heir" contained in Art.1412 interpreting the same in a manner so as to exclude a divorced spouse. Moreover, when the estate inter se has not been partitioned in consequence of the divorce?
Fact of the Case:
The appellant sought condonation of delay in filing an appeal against the judgment and order passed by the Inventory Court on the grounds of financial difficulties and the non-drawing of the decree as mandated in Section 442 of the Goa Succession, Special Notaries and Inventory Proceedings Act, 2012.
Finding of the Court:
The court found that the appellant failed to establish sufficient cause for condoning the delay, as the delay was not due to financial constraints or the non-drawing of the decree. The court also noted that the appellant filed the appeal without a certified copy of the decree, indicating that the delay was not justified.
Issues: The issues revolved around the appellant's plea for condonation of delay, the application of Section 442 of the Act, and the interpretation of Portuguese Civil Code articles in the context of the case.
Ratio Decidendi: The court emphasized that the party seeking condonation of delay must establish sufficient cause based on events or circumstances arising before the limitation period expired. The court also highlighted the need to consider the individual facts and circumstances of each case in determining sufficient cause.
Final Decision: The appeal was dismissed, with no order as to costs, as the court found that the second appeal did not raise any substantial question of law.
JUDGMENT
C.V. Bhadang, J -The appellant is the original interested party no.1 before the Inventory Court, in Regular Inventory Proceedings No.68/2015, which were decided by the Inventory Court on 12/04/2017. According to the appellant, she could not apply for the certified copy of the judgment, as it was informed that the Trial Court has not yet drawn the decree in terms of the provisions of Section 442 of the Goa Succession, Special Notaries and Inventory Proceedings Act, 2012 (the Act, for short). Ultimately, the applicant applied for a certified copy of the judgment on 22/06/2017. The date given by the Trial Court to collect the copy was 27/06/2017. However, the appellant was issued with a certified copy of the judgment on 23/06/2017 itself. On 27/06/2017, the appellant filed an application for obtaining certified copy of the decree, however, the appellant was again told that the decree is not drawn. The appellant, therefore, filed an appeal, before the learned District Judge on 28/06/2017. The appeal was accompanied by an application for condonation of delay of 69 days.
2. According to the appellant, the application for condonation of delay was filed "out of abundant caution". It was also contended that due to financial difficulties, the appellant could not visit the office of the Trial Court repeatedly to check as to whether the decree was drawn or not and delay, if any, was unintentional and on account of financial constraints. The appellant, therefore, sought condonation of delay in filing the appeal.
3. The application was opposed on behalf of the respondents on the ground that no sufficient cause is shown for condoning the delay.
4. The learned District Judge, by the impugned order dated 22/09/2017, has dismissed the application for condonation of delay on the ground that the applicant has not made out sufficient cause for condoning the same. As dismissal of the application for condoantion of delay, in effect amounts to the confirmation of the judgment and order, passed by the Inventory Court on merits, the appellant has approached this Court in the present Second Appeal.
5. I have heard Shri Rao, the learned Counsel for the appellant and Shri Diniz, the learned Counsel for the contesting respondent no.6. With the assistance of the learned Counsel for the parties, I have perused the record and gone through the impugned order passed by the learned District Judge.
6. The appellant had initially framed the following draft substantial questions of law in para 2 of the appeal memo :
"I. Whether the approach of the First Appellate Court in dealing with the application of the Appellant under section 5 of the Limitation Act to seek condonation of delay in filing the said appeal was in accordance with law while construing whether or not the appellant had not disclosed sufficient cause to explain the delay in filing of the said first appeal ?
II. Whether the First Appellate Court erred in dismissing the appeal as barred by limitation, though the delay for sufficient cause was explained in terms of Section 5 of Limitation Act and the law laid down by the Hon''ble Supreme Court of India in that regard?
III. Whether the appeal against the Impugned Judgment dated 12/04/2017 was barred by limitation ?
IV. Whether the period of limitation would commence from the date of drawing of the decree as mandated in terms of Section 442 of the Goa Succession, Special Notaries and Inventory Act, 2012?
V. Whether the findings reached by both the Courts below are perverse inasmuch as they are not germane or relevant or are extraneous to the fundamental issues?
VI. Any other substantial question of law that may be raised with the leave of the Court?"
7. On 21/06/2018, the appellant has furnished the following additional draft substantial questions of law :
"VII. Whether the Ld. Trial Court wrongly placed reliance on the ratio laid down by this Hon''ble High Court in the case of Ranjit Satardekar Vs. Clothildes Fernandes (A.O.18 of 2006) when the sa
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