Mr. Francisco Xavier Ralfo Pereira and others vs Mr. Jose Antonio Pereira

F.M. Reis, J.—Heard the learned counsel for the appellants and the respondent. Admit.

Heard finally with consent of both the counsel. The Respondent waives service

This appeal challenges the order dated 7.12.2007 and 30/3/2010 passed by the learned 2nd Additional Civil Judge Senior Division at Margao in Special Inventory Proceedings No.59/06/II whereby the applicator filed by the Appellants for appointment of Cabeca de Casal came to be dismissed. Inventory proceedings were initiated upon the death of Domingos Pereria who is the father of the respondent as well of the appellants nos.3 and 4 herein. The respondent was appointed as Cabeca de Casal in the said proceedings. Immediately after due services of the summonses in the said proceedings, the appellant no.1 on 15.1.2007, filed an application that the surviving spouse of the deceased Martina Rosada Dias e Pereira be appointed as Cabeca de Casal, but however, before disposing of the said application, she expired on 22/3/2007. Immediately thereafter on 4/4/2007, the appellant no.1 filed an application to the effect that he be appointed as Cabeca de Casal instead of the respondent on the ground that he was residing in the permanent domicile of his deceased parents during their life time and was in their company at the time of their death and continuously residing in the ancestral house. The said application came to be dismissed on 7.12.2007. Thereafter, a review of the said order came to be filed, which by the impugned order dated 30.3.2010 came to be dismissed.

The learned counsel for the appellants has assailed the said orders on the ground that the learned Judge has totally misconstrued the provisions of the law with regard to the appointment of Cabeca de Casal on the ground that a person who was permanently residing with the deceased has a preferential right to such appointment over the others in terms of Article 2068 of the Portuguese Civil Code. The learned counsel further submitted that the proviso to the said Article has not been considered by the learned judge while passing the impugned order. On the other hand the learned counsel appearing for the respondent has disputed the contention of the learned counsel for the appellants and submitted that the learned Judge has also considered the matter with regard to the claim of residence based on the submissions of the Appellant no.1 and rejected the said contention by the impugned order. He as such submitted that no interference is called for in the impugned order.

On perusal of the impugned order, I find that the learned Judge has at paragraph 7 of the order held that in view of the fact that the appointment was made under Article 2068 of the Portuguese Civil Code, no error has been committed by passing the earlier order dated 7.12.2007. The learned Judge failed to consider that after receipt of the summons any of the parties can raise an objection to the inventory and contest the competence of the Cabeca de Casal/Administrator under Article 1374 of the Portuguese CPC within the time prescribed therein. In the present case the appellant no.1 had immediately after the summons were served filed an objection to the effect that the respondent was not entitled to be appointed as the Cabeca de Casal, as he was not on permanent domicile and in the company of the deceased. This allegations were disputed by the respondent. In such circumstance the procedure envisaged therein contemplates a specific procedure to be followed after allowing the parties to lead evidence to decide the question.

In view of the such dispute the learned Judge ought to followed the procedure as stipulated in Article 1374 of the Portuguese CPC and arrived at a decision as to who is entitled to be appointed as the Cabeca de Casal in accordance with the provisions of Article 2068 of the Portuguese Civil Code. As such the finding of the learned Judge that the provision of Article 2088 of the Portuguese Civil Code will have to be satisfied cannot be sustained to the facts of the present case. This is not a case of removal of Cabeca de Casal. As such, the impugned order cannot be sustained and deserves to be quashed and set aside. In view of the above, the impugned orders dated 7.12.2007 and 30/3/2010 are quashed and set aside.

The learned Civil Judge, Senior Division Margao is directed to decide the application filed by the appellant no.1 afresh after giving an opportunity to both the parties to be heard in accordance with law.

The appeal stands disposed of accordingly with no order as to costs.