Advocates:
['ADV JAYANT PANDURANG MULGAONKAR', '', 'ADV PEARL ELSA REMEDIOS', 'ADV SIYA DHARGALKAR', 'ADV ANUSHA D KAISUKAR', 'ADV R G RAMANI', '', 'ADV SUNANDA PANDURANG AMONKAR']

-1-

WP-929-16.doc

Andreza

IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITION NO 929 OF 2016

1

2

3

Mrs. Amelia Diniz,

Aged about 57 years,

Resident of House No.200,

Adaovado, Majorda, Goa.

Mrs Lenette Pereira,

Major of age,

Housewife

and her husband

Mr Savio Benjamin Mascarenhas

Major of age, Businessman,

Both residents of House No.199

Adao Vado, Majorda, Goa.

... Petitioner

V e r s u s

1.

Mr Vittol Bhawant Kamat,

and his wife

2.

Mrs Trupti Vithal Kamat,

Both residents of House No.336

Costa vado Majorda Salcete, Goa.

3.

Mr Antonio Pereira

Aged about 65 years,

Businessman,

Resident of House no.200,

Adao Vado, Majorda, Goa.

...Respondents

Shri J. P. Mulgaonkar, Advocate for the Petitioners.

Shri R. G. Ramani, Advocate for the Respondent nos.1 and 2.

-2-

WP-929-16.doc

Coram:- NUTAN D. SARDESSAI, J.

Reserved for Judgment on : 22nd September 2017

Judgment Pronounced on : 24th November 2017

JUDGMENT

1.

Heard Shri J. P. Mulgaonkar, learned Advocate for the

Petitioners and Shri R. G. Ramani, learned Advocate on behalf

of the Respondents.

2.

Rule, heard forthwith with the consent of the learned

Counsel. Learned Counsel appearing for the Respondents,

waives service.

3.

This Petition under Article 226 and 227 of the

Constitution of India takes exception to the Order dated

13.10.2015 passed by the learned Additional Senior Civil

Judge, Margao, and that dated 11.08.2016 passed by the

District Judge-II, Margao, in Misc. Civil Appeal No.16/2016.

4.

Heard Shri J. P. Mulgaonkar, learned Advocate on behalf

of the Petitioners who contended at the outset that two

questions arose for determination in this Petition as to whether

who could be the Cabeca-de-casal in the Inventory

Proceedings and secondly whether a common Inventory

-3-

WP-929-16.doc

Proceeding was possible where there were different heirs of

the two deceased spouses. He adverted to the application

filed by one Lila Kamat, since deceased, who had initiated the

Inventory Proceedings on the death of her brother Francisco,

the order appointing her as the Cabeca-de-casal and

subsequently to the application filed by her son on her demise

for his appointment as the Cabeca-de-casal. The application

was silent on the relationship of the Applicant to any of the

deceased for his appointment as a Cabeca-de-casal. Yet,

however, the learned Senior Civil Judge by the order dated

13.10.2015 appointed him i.e. the Respondent No.1 as the

Cabeca-de-casal. In Appeal, the District Court did not address

itself to the issue in question and instead confirmed the said

order appointing the Respondent No.1 i.e. the son of the

deceased Cabeca-de-casal as the next Cabeca-de-casal, when,

on the contrary, the Respondent No.3 had to be preferred for

appointment as the Cabeca-de-casal. He adverted to the

relevant provisions of The Goa Succession, Special Notaries

and Inventory Proceeding Act, 2012 and submitted that it was

only the heirs who could initiate the Inventory Proceedings and

that the late Lila who was not the heir of the widow and

therefore the Respondent No.1 who was her son could not be

appointed as the Cabeca-de-casal. The heirs of the widow

were not the heirs of the deceased husband. The learned

-4-

WP-929-16.doc

District Court had relied on Article 1431 erroneously. The

sister of the deceased was appointed as the Cabeca-de-casal

of the deceased Inventariante but her son could not qualify as

a heir of the other deceased spouse. The appointment of the

Cabeca-de-casal was not an empty formality and an inquiry

was contemplated in the matter. There was a basic

jurisdictional error in the finding of the District Court and also

the Trial Court and therefore the impugned Order justified

interference in the Petition.

5.

Shri R. G. Ramani, learned Advocate for the Respondent

nos.1 and 2 contended that the Petitioners were not seeking

their appointment as Cabe