IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO. 42 OF 2007

SMT. SEBASTIANA GRACIANA CABRAL

... Appellant

Versus

SHRI. THOMAS MENINO CARDOZO

... Respondent

Ms. H. Fernandes, Advocate for the appellant.

Mr. C. A. Ferreira, Advocate for the respondent.

Coram:- R. S. MOHITE, J.

Date:-

10th August, 2007

P.C.

This is a second appeal, impugning the concurrent Judgments and

Decrees passed by the two lower Courts, refusing an injunction sought by

the appellant (original plaintiff) to restrain the respondent who is the

erstwhile husband from disposing off or transferring several articles

which were gifted by relations and family friends at the time of the

marriage or obtained jointly by the plaintiff and the defendant during the

subsistence of the marriage. It was the plaintiff's case that the marriage

was dissolved by eclectic decree which was confirmed by this Court in the

year 1996. It appears that such annulment of marriage is governed by

Article 69 and as regards the property, it has same effect as in the case of

dissolution of marriage by death in respect of their properties. In such a

case, the civil court permits the filing of inventory proceedings. In the

said proceedings, parties are at liberty to seek an injunction if the

circumstances required for grant of an injunction, arise. In the present

case, the lower Courts have dismissed the suit, inter alia, on the footing

that no cause of action is made out in the plaint and apart from a bare

apprehension, there is no material on record to support the fact that the

defendant is likely to dispose off or alienate the articles. In the Judgment

of the Apex Court in the case of Sunil Kumar and another vs. Ram

Prakash and ors., reported in AIR 1988 SC 576, the Apex Court has held

that the provisions of Section 38 have to be read along with Section 41

which provides that an injunction cannot be granted when a party can

obtain an efficacious relief by any other usual mode of proceedings. In

that case, a permanent injunction was granted on the footing that

coparcener has adequate remedy to impeach the alienation made by a

karta and it was held that therefore, he could not move for an injunction

restraining the karta from alienating the coparcenary property. In the

present case also, it appears that under the Portuguese Civil Code, the

wife has right to file inventory proceedings and if necessary conditions

for grant of temporary injunction exists, then she can apply for such

temporary injunction. Needless to say that on the conclusion of the

inventory proceedings, she becomes owner in respect of the property

allotted to her.

2. It is also admitted before me that the appellant has already filed an

inventory proceedings which were instituted after the annulment was

confirmed by this Court. The said inventory proceedings bear No.19/97.

There is always liberty to seek an injunction in the said inventory

proceedings.

3. In the aforesaid circumstances, there is no substantial question of

law which is raised in this second appeal. The second appeal is rejected.

R. S. MOHITE, J.

ssm.