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A.O 3 2020

IN THE HIGH COURT OF BOMBAY AT GOA

AO No.3 of 2020

ANTONIO OSWALD

ALVARO FURTADO., ….... APPELLANT

VS

ANTONIO VERNON

RAIMONDO FURTADO AND

6 ORS., ….... RESPONDENTS

Mr. Nigel Da Costa Frias, Advocate for the Appellant.

Mr. V. Menezes, Advocate for Respondent no.1 and 2.

Mr. S. Sardessai, Advocate for the Respondent no.7.

CORAM: DAMA SESHADRI NAIDU, J.

Date: 16th March 2021.

ORDER:

Facts:

There are three brothers: the appellant, the first respondent, and the

third respondent. Their sister is the fifth respondent; their mother, the

seventh respondent.

2. In 2016, the appellant, his two brothers, and his sister had the

family properties partitioned. It seems they inherited those properties from

their father, uncle, and aunt.

3. In that partition, one piece of property with structures, in survey

no.64/1 of village Varca, was divided into three parts:

Plot “A” with a structure was allotted to the appellant;

Plot “B” with a part of the ancestral house was allocated to the third

respondent and his wife, who is the fourth respondent;

Plot “C” again with a structure, having the main ancestral house, was

allotted to the first respondent and his wife, the second respondent.

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4. Before the partition in 2016, the appellant lived in the U.S.A for

many years; he now lives in Goa, though. The first respondent, an

Australian resident, still lives there. So, in his absence, allegedly, his staff

takes care of his property: Plot C.

5. When the partition took place, in the house on plot A, allotted to

the appellant, a lady with her family was staying. She is said to have claimed

her right as an earlier ‘caretaker’ of the joint family. As the appellant could

not occupy the house on plot A, all the three brothers have had a

Memorandum of Understanding(“MOU”). This is an admitted fact.

6. Through that MOU, the brothers agreed thus: (a) that they all

should contribute Rs.10.00 lakhs each and build a house on an alternative

site for their employee occupying the house in plot A; (b) that until that

house was built, the appellant could live in the house on plot C, allotted to

the first respondent, who lives in Australia. Through that arrangement, the

appellant occupied the house on plot C and continued to live there.

Meanwhile, he is said to have contributed his share of Rs.10.00 lakhs for the

alternative house to be built for their employee, who would then vacate the

house in plot A belonging to the appellant.

7. Over time, the appellant wanted to mutate the Revenue records and

sell plot A. With the prospective purchasers’ enquires, the appellant, for the

first time, came to know that plot A had no independent access. In fact, the

other brother, that is the third defendant (Plot B), blocked the access. And it

has made it difficult for the appellant to enjoy his property. Soon, even the

first respondent obstructed, as the access begins from his property—that is,

plot C.

8. According to the appellant, only then when he came to know about

the access-problem did he realise that he had been tricked; he had been

tricked into having the property partitioned without any benefit to him. So,

he has sued his brothers. In Special Civil Suit No.62/2018 before the Civil

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Judge, Senior Division, Margao, the appellant sought a declaration that the

partition deed is void because it is fraudulent. He has sought other

consequential reliefs as w