WP No. 4/2019

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IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 4 OF 2019

Orenstein D'Souza & Another

….

Petitioners

Versus

Vijitsikand @ Vijit Singh Sikand & 4

others

….

Respondents

***

Mr. Chaitanya Padgaonkar, Advocate for the Petitioners.

Mr. R.G. Ramani, Advocate for Respondent No. 1.

CORAM : C.V. BHADANG, J.

DATE : 4

^th June, 2019

ORAL ORDER:

By this petition, the petitioners are challenging the

order dated 25.10.2018, passed by the learned Senior Civil

Judge at Margao in Special Civil Suit No. 52/2012/II. By the

impugned order, the learned Trial Court has dismissed

application (Exhibit-52), filed by the petitioners, under Order I

Rule 10(2) of the Civil Procedure Code (CPC, for short),

seeking their impleadment as defendants.

2.

The brief facts are that the respondent no. 1 has

filed the aforesaid suit, against the respondent nos. 2 to 5, for

specific performance of an agreement of sale dated

06.02.2008, allegedly executed by the respondent nos. 2 to 5.

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3.

The petitioners filed an application (Exhibit-52) for

their impleadment, on the ground that the suit property,

comprising of survey nos. 83/2 and 84/12 of village Carmona,

Tehsil Salcette, came to be owned by original defendants as

heirs and successors of Mr. Antonio Pereira and his wife, Mrs.

Filomena Carvalho or Victoria Filomena Carvalho alias

Philomena Pereira. The original defendant no. 1, Ms. Susan

D'Souza alias Susan Laura Nutan Pereira was married to Mr.

Oliveiro Henry D'Souza and their marriage was celebrated in

St. Blaise Church at Mumbai on 28.12.1985. It was contended

that although, the said marriage was not registered in Goa

since, Ms. Susan D'Souza and Oliveiro D'Souza were both of

Goan origin, their marriage was governed by regime of

communion of assets. The petitioners happen to be the

children of Ms. Susan D'Souza and Mr. Oliveiro D'Souza.

4.

It was contended that the marriage between Ms.

Susan D'Souza and Mr. Oliveiro D'Souza was dissolved by a

decree of divorce dated 23.07.2002, passed by the Family

Court at Mumbai and subsequent to the said divorce, no

partition or inventory of the estate belonging to them was held,

separating the property by metes and bounds. Mr. Oliveiro

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D'Souza expired on 04.05.2013 and the applicants, as his heirs

have inherited the said property, which is jointly owned by the

petitioners and the original defendant no. 1, Ms. Susan

D'Souza. It was thus contended that the petitioners being the

co-owners of the property, are necessary parties to the suit for

specific performance.

5.

The application was opposed by the respondent no.

1/original plaintiff. It was denied that the petitioners are the

children of Ms. Susan D'Souza and Mr. Oliveiro D'Souza or that

the marriage between Ms. Susan D'Souza and Mr. Oliveiro

D'Souza was governed by regime of communion of assets. It

was contended that the said marriage is not registered under

any law in force, either in Goa or in Mumbai. The factum of

marriage was also denied. It was contended that the suit is for

specific performance of the agreement between the respondent

no. 1 and respondent nos. 2 to 5, to which, the petitioners are

not parties and thus, they are neither necessary nor proper

parties to the suit.

6.

The learned Trial Court by the impugned order has

dismissed the application. Hence, this petition.

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7.

I have heard Mr. Padgoankar, the learned Counsel

for the petitioners and Mr. Ramani, the learned Counsel for the

contesting respondent no. 1. Perused record.

8.

Mr. Padgoankar, the learned Counsel for the

petitioners has placed reliance on the decision of the Supreme

Court in the case of Mumbai International Airport Pvt. Ltd.

Vs. Regency Convention Centre and Hotels Pvt. Ltd. and

Ors. AIR 2010 SC 3109, in order to submit that it is not an

absolute rule that in no case, a third party