The sale deed executed by a spouse without consent from other heirs is null and void to protect the rights of descendants under succession law.

ORAL JUDGMENT

The above Second Appeal was admitted on the following substantial questions of law :

1. Whether the provisions of Article 1565 of the Portuguese Civil Code are not repealed under Section 44 of the Transfer of Property Act ?

2. Whether the plaintiff’s suit was liable to be dismissed for the plaintiffs having not prayed for the consequential relief of recovery of possession ?

2. Briefly the facts of the case are that the respondents filed the suit on the ground that the respondents and the appellants amongst the other properties are the lawful co-owners in enjoyment and possession of two properties known as “Vidulas” and “Mordi Vidulas” surveyed under Nos.171/6 and 171/4 of Village Morjim admeasuring area of 9611 and 1389 square metres respectively situated at Morjim of Pernem Taluka, District of North Goa, described in the Land Registration Office under No. 3165 of pages 163 of Book B-21 Old. It was further their case that the said two properties are registered in the name of late Jose Piedade Fernandes and no inventory proceedings have been initiated upon his death and as such the shares of each of the co- owners nor any family partition has been effected in respect of the said properties nor individual shares determined in such properties. It is further their case that the appellant no.3 is the widow of late Jose Piedade Fernandes and appellant no.1 is one of the sons who is concerned with the subject matter of the suit. It is further their contention that the appellant no.1 in collusion with appellant no.3 with a malafide intention and to cause wrongful loss to the other co-owners entered into a sale deed dated 21.11.1995 purporting to have sold the suit properties in favour of appellant no.1 for a total consideration of Rs. 1,00,000/-. It is further their contention that the said sale deed is null and void ab initio as the appellant no.3 was not the sole and absolute owner of the suit properties. It is also their case that unless the shares of all the co-owners are ascertained by way of inventory proceedings, the said sale deed has no legal effect. Consequently, the suit came to be filed for a declaration that the sale deed dated 21.11.1995 be declared as null and void and the relief of directing the cancellation of the said sale deed before the Sub Registrar.

3. The appellant nos. 1 and 2 filed their written statement disputing the claim put forward by the respondents. They deny that the appellant no.3 was not the lawful owner of the suit properties. With regard to the fact that the said property was registered in the name of late Jose Piedade Fernandes who is the husband of appellant no.3, the appellant nos. 1 and 2 have merely denied the said contents of para 2 in the said written statement and put the respondents to strict proof thereof. Remaining contentions in the plaint filed by the respondents were also denied by the appellant nos. 1 and 2 in their written statement. The said appellants have also filed a counter claim praying inter-alia that the respondents be directed to pay damages of Rs.1000/-.

4. The appellant no.3 also filed the written statement inter-alia stating that two properties were sold by her to the appellant nos. 1 and 2 out of legal necessity as the appellant no.3 was in need of money. It was further her case that the sale of said two properties are well within the disposal portion in her estate. She also denied that the respondents are the lawful co-owner of the suit properties. She further claimed that the suit property wa