IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO. 598 OF 2012

MRS. MARIA IVETE DE SOUZA E LOBO

... Petitioner

Versus

MR. AGNELO BERNARDINO SEBASTIAO DE

SOUZA AND 7 ORS.,

... Respondents

Mr. Prashant G. S. Gaitonde with Mr. V. Pangam, Advocate for the

Petitioner.

Coram:- F. M. REIS, J.

Date:-

11th October, 2012

ORAL ORDER

Heard Shri Gaitonde, learned Counsel appearing for the Petitioner.

2. The above Petition challenges the Orders passed by the Courts

below whereby an application for temporary injunction filed by the

Petitioners to restrain the Respondents from inter alia selling and/or

disposing of the suit property, came to be dismissed.

3. It is the contention of the Petitioner that she is a co-owner of the

suit property as, according to her, the property originally belonged to

her father Armando D' Souza, and that as the property has not been

divided, the question of alienation of the property unless and until the

Inventory Proceedings are completed, would not arise. It is further

her case that besides the said one-sixth share which belonged to the

said Armando, the remaining one-sixth share belonged to the

grandmother of the Petitioner. It is further her case that the

Respondents are in the process of developing the property and that

the Petitioner has inherited the rights of the said Armando in the suit

property. It is further the case of the Petitioner that Inventory

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Proceedings have been initiated upon the death of the grandmother of

the Petitioner which is also pending before the Court for

consideration in respect of the estate of the grandmother Livinia

Parle. As such, it is the contention of the Petitioner that in view of

Article 2177 of the Portuguese Civil Code unless and until the

property is partitioned, the question of alienating the property is not

justified. On such premise, the suit came to be filed for permanent

injunction and for cancellation of the Gift Deeds. Pending disposal

of the suit, the Petitioner has filed an application for temporary

injunction.

4. The Respondents have disputed the claim of the Petitioner and

pointed out that upon the death of Armando, the one-sixth share of

the said Armando has devolved upon his widow. The Respondents

further contend that remaining one-sixth share of the property has

been bequeathed to them and that they are entitled to the

development of the property. It is their case that there was an

Agreement executed between all the parties before filing of the suit

and plot no. 14 was allotted to the Petitioner by Deed of Gift. It is

further their case that no rights devolved upon the Petitioner and that

the Petitioner has no right to the suit property.

5. The learned Civil Judge, Senior Division at Mapusa, by the

impugned Order dated 29.09.2009, dismissed the application for

temporary injunction. Being aggrieved by the said Order, the

Petitioners preferred an Appeal before the learned Addl. District

Judge, which came to be dismissed by Order dated 23.4.2012 in

Misc. Civil Appeal no. 137/2009.

6. Being aggrieved by the said Orders passed by the Courts below,

the Petitioner has preferred the present Writ Petition.

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7. Shri Gaitonde, learned Counsel appearing for the Petitioner has

assailed the impugned Judgment on the ground that as Inventory

Proceedings are already pending before the Court to partition the

estate of the grandmother of the Petitioner and, as such, until and

unless such proceedings are disposed of, the question of alienating

the property belonging to the estate would not arise. Learned

Counsel further pointed out that the Petitioner has got co-ownership

right in the suit property. The learned Counsel has taken me through

the impugned Order as well as the material on record and pointed out

that the Courts below have erroneously come to the conclusion that

the Petitioner had no right to the suit property. Learned Counsel as

such submits that the impugned Orders passed by the Courts below

are to be quashe