The main legal point established in the judgment is that the rights of co-heirs remain indivisible until partition, and the plea of ouster by one co-heir against another is not possible under the Civil Law.

JUDGMENT :

Introduction:

1. Mother dies, leaving behind a son and a daughter to inherit the estate. Though both are co-heirs and, thus, co-owners, the brother ostensibly possesses the properties. The sister initiates inventory proceedings over 30 years after the mother's death. The brother opposes the proceedings. He says the period of prescription under the Portuguese Civil Code, 1867, bars the remedy and declares the brother as the owner, too. Is it so?

Facts:

2. Petitioner Ramachandra A. S. Rataboli is the brother; respondent Monica Sinai Rataboli is the sister, represented by her power-of-attorney holder. Their mother died in 1979. By operation of law, the succession opened then.

3. But Monica initiated inventory proceedings in 2015. It was before the Senior Civil Judge of Bardez at Mapusa, in Inventory Proceedings No. 610/2015/C.

Procedural History:

4. The trial Court issued notice to Ramachandra on 15 June 2016, appointing him as Cabeca de Casal. It required him to state on oath about the properties. On 30 August 2017, Ramachandra, however, applied to the trial Court to have the inventory proceeding dismissed. It was on the premise that the proceedings was beyond the prescriptive period under the Portuguese Civil Code. On the merits, the trial Court dismissed Ramachandra’s application. Through a cryptic order, dated 22 December 2017, it has held that the proceedings are maintainable though they were filed beyond 30 years. Aggrieved, Ramachandra has filed this Appeal from Order.

Arguments:

Appellant:

5. Shri F. E. Noronha, the learned counsel for the appellant, has submitted that uncontestably the prescriptive rights under the Portuguese Civil Code 1867 will apply to the Inventory Proceedings. According to him, the governing provision is Article 2017. And that Article, in fact, refers to Article 505, which defines what a prescriptive right is and how it gets extinguished.

6. In this context, Shri Noronha has delineated on the conceptual difference between limitation and prescription. He has also further drawn my attention to Article 535 of the Portuguese Civil Code. He wants me to read both Articles 505 and 535 together, to appreciate the purport of Article 2017.

7. According to Shri Noronha, if we read Article 505 with Article 535, we find two contingencies: one is a positive prescription and the other negative prescription. As to the positive prescription, the time prescribed is 20 years; as to the negative prescription, it is 30 years. Even if we assumed that the negative prescriptive period would apply, still Monica’s right to claim inheritance stood extinguished forever.

8. In this context, Shri Noronha has relied on Sachindra Nath Roy v. Maharaj Bahadur Singh (AIR 1922 PC 187); Official Liquidator, Palai Central Bank Ltd. v. K. Joseph Augusti (AIR 1966 Kerala 121); T. Kaliamurthi v. Five Gori Thaikkal Wakf (2008) 9 SCC 306); S.C. Prashar v. Vasantsen Dwarkadas (AIR 1963 SC 1356); Mathukumalli Ramayya v. Uppalapati Lakshmayya (AIR 1942 PC 54); and The Employees' State Insurance Corporation v. M/s. Bharat Barrel and Drum Manufacturing Co. (P) Ltd (AIR 1967 Bom 472).

Respondent:

9. On the other hand, Shri V. Menezes, the learned counsel for the respondent, has submitted that for enforcing the rights and obligations under the Indian statues, indisputably the Limitation Act 1963 applies. If the cause of action arises entirely under the Portuguese Civil Code, what applies is the period of prescription provided in that Code. According to him, this aspect has been well established through a catena of decisions; one of them is Syndicate Bank v. Prabha Naik (2001) 4 SCC 713). In fact, Shri Menezes has read out extensively from that judgment.

10. The primary contention on Shri Menezes’s part is this: as is the case under the Indian law, when two co-owners succeed to an estate, they both are presumed to be in joint possession. Possession in the hands of one will be deemed possession in the hands of the other. To dislodge this presumption, the