The central legal point established in the judgment is that a sale deed transferring undivided rights in a co-owned property does not breach Article 2177 of the Portuguese Civil Code, and the co-ownership rights of the other co-owners remain secure and intact.

JUDGMENT

M.S. Sonak, J. - This Second Appeal was admitted on 15.03.2012 on the following substantial questions of law:

"1. Whether the said sale transaction entered into by the Respondent nos. 4 and 5 with the Respondent no.2 in respect of their undivided share in a specific property could be held to be valid when the Respondent nos. 4 and 5 were co-owners alongwith the Appellants herein of the property sold along with few other properties which were jointly inherited by them from their ancestors, especially in the absence of any partition/inventory ?"

2. The appellants are the original plaintiffs and the respondents are the original defendants in Special Civil Suit No.9/2006 instituted by the plaintiffs before the Ad-hoc District Judge-1, FTC-I, South Goa at Margao (Trial Court) seeking the following reliefs:

"(a) That by Judgment and Decree of this Hon'ble Court, the Deed of gift dated 14th October 1992 executed by the Defendant no. 1 in favour of the Defendant no. 2 registered under No. 202 at pages 588 to 595 dated 11/3/1993, and the Deed of Sale dated 26th December 1995, registered under No.27 at pages 462 to 498 dated 4/1/1996 be declared as null and void.

(b) That by Judgment and Decree of this Hon'ble Court, the defendant no.2(a) be directed to quit, vacate and hand over the Vacant possession of the said house and of the property;

(c) Cost of the suit be allowed;

(d) Other and further orders be passed as deemed fit and proper."

3. The Trial Court vide Judgment and Decree dated 30.04.2009 partly decreed the suit and the sale deed dated 26.12.1995 registered under No.27 at pages 462 to 498 dated 04.01.1996 was declared as null and void.

4. The respondents/their predecessors in title, aggrieved by the decree dated 30.04.2009 appealed to the District Court, South Goa at Margao (First Appellate Court) vide Regular Civil Appeal No.500 of 2010 / First Appeal No.138 of 2009. By judgment and decree dated 28.07.2011 the First Appellate Court allowed the appeal and set aside the Trial Court's judgment and decree dated 30.04.2009. Hence the present Second Appeal on the aforesaid substantial question of law.

5. Mr. Nitin Sardessai, the learned Senior Advocate who appears along with Mr. G. Panandikar submitted that from the meaningful reading of the deed of sale dated 26.12.1995, it was more than apparent that the respondents, as co-owners of the suit property, had disposed of a specific portion of the common property without the same being assigned or allotted to them in any inventory or partition. He pointed out that Article 2177 of the Portuguese Civil Code clearly provided that a co-owner cannot dispose of either the entire property or any specific portion thereof unless and until the share of such coowner in the property is partitioned, separated in loco, and allotted to him. Mr. Sardessai points out that the recitals in the sale deed dated 26.12.1995 have been ingeniously worded but the habendum clauses make it clear that specific property or a specified portion of the common property has been sold by the co-owners in the teeth of the provisions of Article 2177 of the Code. Mr. Sardessai submits that the sale deed dated 26.12.1995 was quite correctly declared null and void by the Trial Court and the First Appellate Court erred in interfering with the decree made by the Trial Court in this matter.

6. Mr. Sardessai relied on Jose Antonio Philip Pascoal da Piedade Cirilo dos Milagrese Miranda and another v. Joao Luis Laurente dos Milagres Miranda and others, (1999) 1 GoaLT 77 and Shri Claudio Francisco v. Smt. Eulalia Fernandes (deceased) & Anr, (2005) 2 AllMR 247 in support of his aforesaid contention.

7. Mr. A. F. Diniz, learned Senior Advocate who appears along with Mr. Ryan Menezes and Mr. Nigel Fernandes for the Respondents No.1(c), 1(d), and 2 in this appeal defended the impugned judgment and decree made by the First Appellate Court based on the reasoning reflected therein. He pointed out that though he was representing the purchaser