Maria Nanda Alexandrina Sales e Dias and Mr. Rabindra Dias vs Mr. Orlando Vitorino Domingos De Fatima Sales and Others

F. M. Reis, J.—Heard Shri Rohit Bras De Sa, learned Counsel appearing for the appellants and Shri M. P. Almeida, learned Counsel appearing for respondent nos. 1 to 4. The above appeal challenges the order dated 14.07.2011 passed by the learned Civil Judge Senior Division, Margao, in Special Inventory Proceedings No.122/09/A whereby the application filed by the appellants to appoint the appellant no.1 as cabeca de casal in the place of respondent no.1 came to be rejected.

Shri De Sa, learned Counsel appearing for the appellants has assailed the impugned order and pointed out that the appellants were residing along with estate leavers at the time of the opening of the inheritance and as such though the respondent no.1 is the elder son of the deceased nevertheless in view of the provisions of Article 2068, part 2 of the Portuguese Civil Code, the appellant no.1 was entitled to be appointed as cabeca de casal. The learned counsel further pointed out that the learned Judge whilst passing the impugned order did not hold any inquiry to that effect and as such the impugned order stands vitiated. The learned Counsel has taken me through the rejoinder filed by the appellants and pointed out that the appellants had sought for inquiry with regard to the claim of the appellants that they were residing with the deceased at the time of the opening of the inheritance. The learned Counsel further pointed out that even otherwise it is the contention of the appellants that they were in possession of properties of the estate leavers and as such they were entitled to be appointed as cebeca de casal under the provisions of Article 2070 of the Portuguese Civil Code. The learned Counsel further pointed out that in support of their claim of possession, the appellants were in position to adduce sufficient evidence to substantiate such claim and as such the learned Judge was not justified to reject the said contention merely on the basis of the survey records produced by the respondents. The learned Counsel has taken me through the impugned order and pointed out that the learned Judge has totally misinterpreted the relevant provisions of law and has erroneously dismissed the application filed by the appellants.

On the other hand, Shri M. P. Almeida, learned Counsel appearing for respondent nos. 1 to 4 has supported the impugned order. The learned Counsel has pointed out that the appellants were never in possession of any portion of the property of the estate leavers nor even resided with the estate leavers. The learned Counsel further pointed out that the properties were always in possession of the estate leavers and the appellants were never in possession of such properties. The learned Counsel further pointed out that no evidence has been produced by the appellants to substantiate their claim that they were in possession of any of the properties of the estate leavers. The learned Counsel as such submitted that the question of holding any inquiry in such circumstances does not arise at all.

Having heard the learned Counsel and on perusal of records, I find that the learned Judge whilst passing the impugned order dated 14.07.2011 has dismissed the application filed by the appellants on two counts. Firstly, the learned Judge has come to the conclusion that the appellants have failed to establish the fact that they were residing with the estate leavers at the time of the opening of the inheritance. On perusal of the material on record, I find that the learned Judge was justified to come to such conclusion. On going through the application filed by the appellants, there is no averments mentioned therein to the effect that the appellants were in permanent domicile of the deceased at the time of the opening of the inheritance. Once such averments are lacking in the application filed by the appellants, the question of going into an enquiry on that aspect would not arise at all. The documents were produced by the respondents to establish that the appellants were residing at St. Cruz and not with the deceased at the relevant time. On the contrary, the learned Judge came to the conclusion that the estate leavers was living with the respondent no.1/cabeca de casal. Hence on that aspect, I find that the learned Counsel appearing for the appellants is not justified to contend that the learned Judge has committed any infirmity in rejecting such contention of the appellants. As such, the question of disturbing the appointment of respondent no.1 as cebeca de casal in terms of Article 2068 of the Portuguese Civil Code cannot be said to be wrong.

Article 2070 of the Portuguese Civil Code provides as under :

The co-heirs who, on the date of opening of the inheritance, had the possession of certain properties of the said inheritance, and those who bring under collation the gifted properties shall be deemed to be the administrators in respect of such properties"

Dealing with the contention of the learned Counsel appearing for the appellants to the effect that the appellants have also sought to be appointed as cebeca de casal on the basis of Article 2070 of the Portuguese Civil Code, I find that there are averments made by the appellants in the application to the effect that they were in possession of the properties of the estate leavers. This contention could not be decided by the learned Judge merely on the basis of survey records. Though it is not disputed that the survey records stand in the name of the deceased parents nevertheless such presumption under the provisions of Section 105 of the Land Revenue Code is rebuttable .As such, the learned Judge ought to have held an inquiry to decide as to who was in possession of the properties of the estate leavers and whether the appellants are entitled in law to be appointed as cebeca de casal on the basis of such alleged possession. No doubt the appellants would have to establish lawful possession as on the date of the opening of the inheritance. As per Article 474 of the Portuguese Civil Code, possession is the retention of fruition of a thing or a right and para 1 thereof provides that permissive acts or acts of tolerance do not constitute possession. As such, whether the claim of the appellants fits into the concept of possession as contemplated in law is a matter which can be adjudicated only upon an inquiry on that aspect. As such, to that extent the impugned order deserves to be quashed and set aside. The learned Judge is accordingly directed to decide the claim of the appellants to be appointed as cebeca de casal in terms of Article 2070 of the Portuguese Civil Code in the light of the observations made herein above. In view of above, I pass the following :

O R D E R

(i) The appeal is partly allowed.

(ii) The impugned order dated 14.7.2011 dismissing the claim of the appellants under Article 2070 of the Portuguese Civil Code is quashed and set aside. The claim of the appellants in terms of Article 2068 of the said Code rejected by the impugned order stands upheld.

(iii) The learned Judge is directed to decide the application of the appellants to be appointed as cebeca de casal in terms of Article 2070 of the Portuguese Civil Code after holding due inquiry and hearing of the parties in the light of the observations made herein above in accordance with law.

(iv) All the contentions of the respondents on that count are left open.

(v) The appeal stands disposed of with no order as to costs.