AO11/15

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IN THE HIGH COURT OF BOMBAY AT GOA

APPEAL FROM ORDER NO.11 OF 2015

1.

Mr. Vito Joao Lobo e Souza Ticlo

Son of late Mr. Joao Antonio e

Souza Ticlo, 81 years old,

resident of H. No.372, Carrem,

Socorro, Bardez, Goa.

2.

Mrs. Helena Elsa Beatrice e Souza

Ticlo, Wife of Mr. Vito Joao Lobo e

Souza Ticlo, 77 years,

resident of H.No.372, Carrem,

Socorro, Bardez, Goa.

..

Appellants

Versus

1.

Mr. Nuno Xavier Lobo de Souza Ticlo

Son of late Mr. Joao Antonio e Souza

Ticlo, 89 years old, resident of H.No.

372, Carrem, Socorro, Bardez, Goa

2.

Mrs. Maria Ida Lobo e Souza Ticlo

Wife of Mr. Nuno Xavier Lobo de

Souza Ticlo, 78 years old, resident

of H.No. 372, Carrem, Socorro,

Bardez, Goa

...

Respondents

Mr. Sudin Usgaonkar, Senior Advocate with Ms. Tanvi Ghanekar,

Advocate for the appellants.

Mr. Ryan Menezes, Advocate for the respondents.

Coram

:- F. M. REIS, J.

Date : - 12

^th June, 2015

ORAL JUDGMENT :

Heard Shri Sudin Usgaonkar, the learned Senior

Counsel appearing for the appellants and Shri Ryan Menezes, the

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learned Counsel appearing for the respondents.

2.

Admit. Heard forthwith by consent.

3.

Shri Ryan Menezes, the learned Counsel waives service

on behalf of the respondents.

4.

The above appeal takes exception to an order dated

01/12/2014, passed by the Inventory Court whereby an application

filed by the appellants to drop prayers (a) and (c) to the

application at exhibit 46, came to be dismissed.

5.

Upon hearing the learned Counsel, what transpires is

that in an inventory proceedings initiated by the respondent no.1,

who is the eldest son of the Estate Leaver, the said respondent was

appointed as the Cabeca de Casal. The appellants filed an

objection to such an appointment, inter alia, on the ground that

though the respondent no.1 was the elder son, nevertheless he was

not living along with the deceased and as such, the appellant, who

was living with the deceased, was entitled to be appointed as the

Cabeca de Casal. The matter proceeded for enquiry and in the

course of such proceedings, the appellants filed an application at

exhibit 46 to withdraw his claim to be appointed as Cabeca de

Casal and as such allow the respondent no.1 to continue to

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function as such. The application was opposed by the respondent

no.1, essentially, on the ground that evidence has already

commenced and that the respondent no.1 was in exclusive

possession of the ancestral house and as such, the appellant was

not entitled to such appointment as Cabeca de Casal. It was also

pointed out that in the meanwhile, an application for Temporary

Injunction was filed by the respondent no.1 and further enquiry

would assist the Court to decide this application. The learned

Judge, by the impugned order, dismissed the application filed by

the appellants on the ground that the aspect of exclusive

possession would be material for the purpose of deciding the

inventory proceedings.

6.

Upon hearing the learned Counsel for the respective

parties, I find that the reasoning of the learned Judge to refuse

leave to the appellants to withdraw their claim to be appointed as

Cabeca de Casal, is not at all well founded. Articles 2011 and 2015

of the Portuguese Civil Code read as under :

“ARTICLE 2011

(Transmission of ownership and possession of

inheritance)

The transmission of the ownership and

possession of the inheritance to the heirs whether

instituted or legal, takes place from the moment of

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the death of the estate-leaver.

ARTICLE 2015

(Indivisibility of the inheritance prior to partition)

Where

many

persons

are

entitled

simultaneously to the same inheritance, their right

shall be indivisible both in respect of possession as

well as ownership, as long as the partition has not

been effected.”

After reading of the said provisions, it appears that the

law recognises that the owners