Mr. Felix Milagrese Reverdo and his wife, Mrs. Maria Magdelina Reverdo and Mrs. Piedade Paulina Reverdo vs Mrs. Piedade Costa, Mr. John Rozarion Issac Furtado and Mr. Savio Furtado

F. M. Reis, J

Heard Shri G. Teles, learned Counsel appearing for the petitioners. The above petition challenges the order dated 29.04.2011 passed by the learned Civil Judge Junior Division, Ponda, in Portuguese Civil Misc. Application No. 25/2010/B in Inventory Proceedings No. 45/2008/B whereby the application filed by the petitioners to reopen the inventory proceedings on the ground that the petitioners being the interested parties in the inheritance left behind by the estate leavers were not made parties therein and the remaining interested parties in the said proceedings have fraudulently effected partition of the inheritance of the estate leavers. It is further the contention of the petitioners that the documents produced by the respondents to claim a right of the inheritance were forged documents and as such the final judgment passed in the Inventory proceedings deserves to be quashed and set aside and the inventory proceedings are to be re-opened.

The learned Judge relying upon the judgment passed by this Court which is reported in 2007(1) Goa L.R. 67 in the case of Devidas Painguincar V/s Smt. Rekha Babu Naik, has come to the conclusion that the Court has no jurisdiction to recall the judgment passed in the Inventory proceedings.

Shri Teles, learned Counsel appearing for the petitioners has assailed the impugned order and pointed out that the case is made out by the petitioners under Article 771 of the Portuguese CPC and not under Article 1427 part 2 of the said Portuguese Civil Procedure Code, as according to him, the documents produced by the respondents were false documents and as such the learned Judge has jurisdiction to entertain the application within the provisions of law. The learned Counsel has further taken me through the Baptism certificates and birth certificate of the respondents produced before the inventory Court and pointed out that one of the said documents does not have the signature of Parish Priest whereas the other document has signature without seal and as such according to him the said documents are false documents which could not be relied upon. The learned Counsel further pointed out that the judgment relied upon by the learned Judge is distinguishable on facts as according to him the grounds made out by the petitioners are within the scope of Article 771 of the Portuguese Civil Procedure Code. The learned Counsel as such submitted that the impugned order deserves to be quashed and set aside.

Having heard the learned Counsel appearing for the petitioners and on perusal of the application filed by the petitioners, it is evident that the foundation of the said application is that the petitioners are claiming to be the interested parties in the inventory proceedings and/or co-shares in the inheritance of the estate leavers and as such were entitled to be parties to the inventory proceedings and that on account of preterition of the petitioners, the remaining parties have acted fraudulently and have conducted the partition of the assets left by the estate leavers. Once such allegations are found in the application, the case of the petitioners squarely comes within the provisions of Article 1427 of the Portuguese CPC which clearly provides that when there had been preterition or omission in joining any of the co-heirs and it is found that other parties acted with fraud and bad faith, whether such malicious conduct is in respect of the preterition, or as to how the partition was prepared, the remedy of such person is to file a suit to set aside such partition. Hence, the learned Judge was justified to come to the conclusion that the remedy of the petitioners, if any, was to file a suit. A similar view has been taken by this Court in the judgment reported in Gurudas B. Velip Vs. Gopal Malu Gaokar and Others, . Considering the ratio laid down by this Court in the aforesaid judgment, I have no hesitation to come to the conclusion that there is no error committed by the learned Judge whilst passing the impugned order.

With regard to the contention of the learned Counsel appearing for the petitioners to the effect that the documents of Baptism and/or birth certificate produced by the respondents were false documents, this aspect would require larger investigation which can be done only by filing the suit. The alleged falsity cannot be made out on the face of the said documents. The petitioners would have to establish their claim that the said documents are false. As such, the contention of the learned Counsel appearing for the petitioners to the effect that the case squarely comes within the provisions of Article 771 of the Portuguese CPC cannot be accepted. The petitioners would have to proceed if advised in accordance with the said provisions of Article 1427 of the Portuguese CPC in accordance with law. In view of the above, I find no merit in the above petition and consequently the same stands dismissed.