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IN THE HIGH COURT OF BOMBAY AT GOA.

APPEAL FROM ORDER NO.27 OF 2017.

Mr. Andre Antonio Rosario Da

Costa and anr.

…

Appellants.

Vs

Mrs.Angela Patricia Da Costa and

2 ors.

…

Respondents.

Mr. M. B. D'Costa Senior Advocate with Ms. K. Betquekar, Advocate

for the appellants.

Mr. J. J. Mulgaonkar, Advocate for the respondent nos.1 to 3.

Coram:-PRITHVIRAJ K. CHAVAN,J.

Reserved on :-10^th July, 2017.

Pronounced on:-19^th July, 2017.

ORDER:

Heard Shri M. B. D'Costa, learned Senior Counsel for the

appellants and Mr. J. J. Mulgaonkar, learned Counsel for the

respondent nos.1 to 3.

2.

Feeling aggrieved with the order dated 22.12.2016 passed

in Regular Inventory Proceedings No.107/2014/III by the Ad-hoc

Senior Civil Judge at Margao, the appellants have preferred the

present appeal under Section 451(2) of the Goa Succession Special

Notaries and Inventory Proceedings Act, 2012 read with Section 104

of the C.P.C., 1908.

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3.

The appellants had moved an application for removal of

the respondent no.1/Cabeca de Casal mainly on the grounds that the

Cabeca de Casal failed to disclose in her statement on oath dated

16.8.2014 the fact of execution of a Public Will dated 13.9.2007 by

the deceased Inventariado during his lifetime despite having

knowledge about the same. Secondly, Cabeca de Casal failed to

comply with Article 2072 read with Article 2073 of the PCC and also

failed to make correct disclosure of the assets of the deceased. The

next ground urged for removal of the Cabeca de Casal is that she

had failed to discharge her duties as she had failed to make correct

valuation of the immovable properties listed only for the reason that

she deceitfully wants to delay the Inventory Proceedings. Lastly,

removal is sought on the ground that because of her ill-health the

Cabeca de Casal is unable to perform her duties in that capacity.

4.

By the impugned order, the learned Civil Judge dismissed

the application with costs of ₹300/- (Rupees three hundred only).

5.

The learned Senior Counsel assailed the impugned order

mainly on the grounds referred herein above. Articles 2072 and 2073

of the Portuguese Civil Code (For short “PCC”) reads thus:-

“Article 2072:- The administrator shall declare:

1.

The name and status of the estate-leaver, the

day, month, year on which, and place where, he

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died;

2.

The name, status, age and capacity of the heirs

testamentary or legal, without excluding those

who might exist in the state of known

conception.

3.

Where the estate-leaver died with a Will and in

such case he shall produce the original or

authentic copy of the same Will;

4.

Whether the estate-leaver, being married, the

marriage was preceded with a deed, and in such

case he shall produce one transcript or authentic

copy of the same.

Article 2073:- The administrator shall present

for the description, faithfully and on oath, a list

of all the properties of the inheritance. Sole

Paragraph: After the description is made any

party may apply that half of the income, of the

properties not bequeathed, be distributed among

the co-heirs taking into consideration the value

which has been attributed to them; the

administrator who fails to comply with such

direction issued by the Judge, shall be removed

forthwith and will be liable to pay compensation

for the damage.”

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6.

The question as to whether the Cabeca de Casal had

performed her function in view of the Article 2072 and 2073 of the

PCC is a matter to be inquired into by giving an opportunity to the

parties and by deciding the objections, if any, raised by the appellants

for removal of the head of the family. In the impugned order, the

learned Civil Judge rejected the application mainly on the grounds

that the interested parties had made similar prayer of the ill-health

of the Cabeca de Casal in their earlier application as well as non-

disclosure of the Public Will which came