Transfer of property by co-owners is invalid without consent from all heirs, reaffirming the legal protections enshrined in the applicable Civil Code, which are applicable in this jurisdiction.

JUDGMENT :

1. Heard the learned Counsel for the parties.

2. This Appeal was admitted on 18th June 2008 on the following substantial questions of law :

(A) Whether the Deed of Transfer dated 8-9-1990 is null and void as it has been executed contrary to the provisions of Article 1565 r/w Article 10 of the Civil Code, 1867?

(B) Whether some of the co-heirs could execute the Deed of Transfer dated 8-9-1990 without the consent of the Appellant who was also a co-heir under Article 2016 r/w Article 2177 of the said Code?

3. On 27th January 2023, after hearing the learned Counsel for the parties and in terms of the provisions of Section 100 (5) of the C.P.C., the following substantial questions of law were formulated:

(C) Whether non-challenge to the consent decree passed in the suit in which the Appellant was not a party, could defeat the alleged substantive rights of her inheritance to inherit the estate of the deceased? and (D) Whether without any evidence on record the suit could be held to be time barred when the Plaintiff claimed that cause of action arose on 26/6/1994 when she came to know for the first time of the deed executed on 8/9/1990, which deed was executed without the consent?

4. Accordingly, the learned Counsel for the parties were heard on the above four substantial questions of law. Arguments concluded on 24th February 2023.

5. The Appellant is the original Plaintiff, and the Respondents are the original Defendants in Special Civil Suit No.226/1994/A instituted in the Court of Civil Judge, Senior Division, at Margao. The suit was instituted to declare the Transfer Deed dated 8/9/1990 null and void and a mandatory injunction for its cancellation. The Appellant also prayed for a permanent injunction to restrain Defendants No.1 to 4 from transferring or conveying the suit property based on the Transfer Deed dated 8/9/1990 without the written consent of the Appellant and other co-owners.

6. The Defendants contested the Suit and also raised a counter-claim for the cancellation of the Deed of Succession and an injunction.

7. The Trial Court, by Judgment and Decree dated 31/05/2003, dismissed the suit and partly decreed the counter- claim by cancelling the Deed of Succession. However, the First Appellate Court upheld the dismissal of the suit, set aside the Decree in the counter-claim and upheld the Succession Deed showing the Appellant (Plaintiff) as one of the successors of the late Antonio Baptista Martins.

8. The Appellant has instituted this Second Appeal questioning the dismissal of the suit on the substantial questions of law referred to above. Respondents have not questioned the rejection of their counter-claim or the declaration of the Succession Deed as valid.

9. Mr C.A. Coutinho, the learned Counsel for the Appellant, submitted that upon the death of Antonio Baptista Martins, his estate was not inventoried nor partitioned through inventory proceedings or a deed of partition. He offered that the consent decree, upon which the impugned Transfer Deed dated 8/9/1990 was purported to be based, was made in a suit to which the Appellant was never a party. Accordingly, neither the Consent Decree nor the Transfer Deed made in pursuance of the same could bind the Appellant, given the provisions of Section 35 of the Specific Relief Act. He submits that the two courts did not adequately appreciate this crucial aspect.

10. Mr Coutinho submitted