Advocates:
['ADV F E NORONHA', '', 'ADV DIAS NINOSHKA ANNE EMERCIANO ANTONIO LEONARDO', ADV MYRON M D'SOUZA, '', '', '', ADV CHARLTON M D'SOUZA, 'amp', MENEZES MYRON D\\'SOUZA, 'CHARLTON MENEZES DSOUZA']

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AO- 45 -2019

IN THE HIGH COURT OF BOMBAY AT GOA

APPEAL FROM ORDER NO.45 OF 2019

1. Dr. Rajendra Tamba,

son of late Dr. Manohar Krishna

Porobo Tamba,

aged 66 years, residing at B-16-A,

Law Campala Colony,

Miramar, Panaji-Goa and anr. …. Appellants

V e r s u s

1. Mrs. Rita alias Anjali Vijay Talaulikar,

daughter of late Dr. Manohar Krishna

Porobo Tamba,

wife of Dr. Vijay Talaulikar,

residing at 2^nd Bairro,

St. Cruz, Tiswadi-Goa and 4 others. ….. Respondents

Shri F. E. Noronha, Advocate with Adv. Ms. N. Dias for the Appellants.

Shri Charlton M. D'Souza, Advocate for the Respondents.

CORAM: C. V. BHADANG, J.

Date: 18^th September, 2019.

ORDER:

The challenge in this appeal is to the order dated 9/7/2019 (below

Exhibit D-25) passed by the learned Senior Civil Judge, Panaji in Inventory

Proceedings No.97/2014/B. By the impugned order, application Exhibit D-

25 filed by the appellants for deciding the validity of the Will dated

11/2/2015 executed by Shrimati Manohar Tamba has in fact been allowed and

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AO- 45 -2019

the matter is fixed for inquiry, as regards the validity of the said Will. The

contention on behalf of the appellant, however, is that there is no inquiry

which is required for determining the validity of the Will in as much as, a

widow cannot dispose of her disposable quota by executing a Will after the

death of her husband. In other words, according to the appellants, the validity

of the Will has to be decided as a pure question of law, which does not

require any inquiry.

2.

The brief facts are that, the aforesaid inventory proceedings have been

initiated on the death of Dr. Manohar Krishna Porobo Tamba, who expired

on 5/10/2014, in which the appellant no.1 is appointed as the Head of the

Family (HoF). The appellant no.1 filed his statement on Oath as well as list

of assets, to which the objections have been filed by the interested parties.

During the pendency of the inventory proceedings Smt. Shrimati Manohar

Tamba, the widow of Dr. Manohar Tamba expired on 21/8/2016. On

20/7/2017 the interested parties disclosed that the deceased Shrimati

Manohar Tamba had executed a Will dated 11/2/2015 in favour of the present

respondent no.3. It is in these circumstances that the appellants filed

application exhibit D-25 for deciding the “substantive validity of the Will as a

preliminary question of law”. It was contended that the Will is executed in

violation of the various provisions of law providing for indivisibility of the

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AO- 45 -2019

inheritance and assets of the matrimonial communion. It was contended that

the issue ought to be decided as a pure question of law, which does not

require recording of any evidence or inquiry. A perusal of the application

shows that the appellant reserved their right to press for other objections, in

case the Will is found to be valid under the substantive law.

3.

The application was opposed by the interested parties. It was denied

that the aforesaid issue can be decided as a preliminary issue as a pure

question of law not requiring any evidence or inquiry.

4.

As noticed earlier the Inventory Court has allowed the application,

however, at the same time has fixed the matter for inquiry on the validity of

the Will.

5.

I have heard Mr. Noronha, the learned counsel for the appellant and

Mr. D'Souza, the learned counsel for the respondent nos.1, 2 and 3. With the

assistance of the learned couns