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sa no.82 of 2019

IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO.82 OF 2019

Ramkrishna Vithal Naik & Anr.

….Appellants

VERSUS

Mandir Madhu Naik & Anr.

….Respondents

Shri A.D. Bhobe and Ms Annelise Fernandes, Advocates for the

Appellants.

Shri I. Agha, Advocate for the Respondents.

Coram:- DAMA SESHADRI NAIDU, J.

Date:- 2 February 2021

ORAL ORDER :

The appellants filed Regular Civil Suit No.79/2013/C before the

Civil Judge, Junior Division, Ponda. They sought a declaration that the

inventory proceedings concluded in 2005 had been vitiated by fraud.

Consequently, they sought an injunction, as well. The suit was filed

against two defendants, who are the respondents here.

2. The respondents are the sons of the first appellant's deceased

brother. Through its judgment, dated 04.05.2018, the trial Court

dismissed the suit. Aggrieved, the appellants filed the first appeal:

Regular Civil Appeal No.71/2018, before the District Court–2, at Ponda.

On 28.12.2018, the First Appellate Court dismissed the appeal, thus,

affirming the trial Court's findings. Further aggrieved, the appellants have

filed this Second Appeal.

3. In the Second Appeal, the appellants have framed as many as nine

substantial questions of law. But fairly, Shri A.D. Bhobe, the learned

counsel, has chosen three out of them as the substantial questions of law.

They are these (reframed):

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sa no.82 of 2019

a. Have both the Courts below failed to consider that the

Inventory Proceedings No. 48/2004/C instituted by Madhu V.

Naik were a product of fraud and consequently were liable to be

declared as void?

b. Have the Inventory Proceedings No. 48/2004/C been contrary

to the provisions of the law?

c. The Appellate Court has concluded that the appellants ought to

have complained against it if there had been any fraud. It has also

held that by participating in the Inventory Proceedings No.

48/2004/C, they have acquiesced in them. Are the Appellate

Court’s conclusions erroneous, resulting in illegality?

4. In support of the above questions of law, Shri Bhobe, the

appellants' counsel, has submitted that the appellants implicitly trusted

their brother, to whom they had given their Wakalatnama. It was with an

understanding that he would engage a counsel to defend their interests,

besides his own. But he has played fraud. According to Shri Bhobe, though

the appellants have pleaded elaborately about the fraud, both the Courts

have misdirected themselves in not appreciating the element of fraud

which is otherwise apparent. Therefore, he insists that the question of

fraud provides a substantial question of law.

5. In the alternative, Shri Bhobe has submitted that even if the

appellants were to assume, without conceding, that the fraud could not be

established, there are other vitiating factors. To elaborate, he has

submitted that inventory proceedings could conclude only when the

respective parties to the proceedings get their moiety or royalty

commensurate to their share. Admittedly, here the appellants established

before the Courts below that the appellants had not been paid the royalty.

And this aspect provides the second substantial question of law.

According to him, both the courts below ought to have set aside the

inventory proceedings and allowed the consequential relief, too.

6. In reply, Shri I. Agha, the learned counsel for the respondents

has, first, contended that there are no substantial questions of law this

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sa no.82 of 2019

second appeal. Then, he has drawn my attention to the fact that the

respondents did receive the royalty. And the respondents’ plea on this

count has been accepted by the Courts below. According to him, both the

questions of fraud and royalty are questions of fact, not of law.

7. Heard Shri A.D. Bhobe, the learned counsel for the appellants;

and Shri I. Agha, the learned counsel for the respondents.

8. Indeed, th