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Judgment
M. Savant, J.—The appellants have filed the above Appeal challenging the judgment and decree dated 12.09.2008 passed by the learned Additional District Judge, F.T.C.-I, South Goa, Margao, by which the Appeal filed by the appellants above named came to be dismissed and thereby the judgment and decree of the lower Court dismissing Civil Suit No. 237/2001 came to be confirmed. The controversy in the above appeal is as regards the 1/4th right in the property named as ''Cabeceira de Calcondem'' admeasuring 1273 sq.mtrs. situated in the city of Margao. The said property now bears matrix No. 452. The said property was mortgaged by Caetano Xavier Fernandes, Francisco Salvador Fernandes, Ulorica Fernadnes and Cipiao Fernandes who are brothers and sister in favour of one Teodosio Coelho. The appellants are the original plaintiffs who have filed the said Regular Civil Suit No. 237/2001 claiming right to the 1\\4th share in the said property. The respondents are the original defendants.
The parties would be referred to as per their status in the Trial Court.
It was the case of the plaintiffs that the defendants are the owners of the 3/4th share of the said suit property, as the late Teodosio Manuel de Natividade Coelho through whom the defendants claim, purchased the share of late Caetano Xavier Fernandes, Ulorica Emerciana Fernandes, Cipiao Basilio Fernandes and his wife Josepha Furtado. It was further the case of the plaintiffs that 1/4th share of Francisco Salvador Fernandes remained with him as the late Teodosio failed to redeem the mortgage of his one fourth share and as such with passage of time the said mortgage got extinguished and share of Francisco Salvador Fernandes alias Salu Fernandes remained with him and the same on his death devolved on Leopoldina Fernandes being his sole and universal heir. The plaintiffs claim through the said Leopoldina Fernandes in respect of the said 1/4th share.
The defendants contested the suit and in the written statement, it was their contention that they are in possession of the entire property from the year 1946-47 and at no point of time anybody had disturbed their possession. It was their case that late Francisco did not redeem the mortgage of his one fourth share in the suit property which he had mortgaged in favour of Teodosio Coelho and as such with the passage of time his share has vested in favour of the respondents. It was further their case that the plaintiffs had fabricated the records such as the death certificate of late Francisco and birth certificate of said Leopoldina Fernandes.
The parties went to trial and on the basis of the evidence, the issues were framed by the Trial Court. The Trial Court dismissed the suit by holding that the appellants had failed to prove the death of Francisco and that Leopoldina is the legal heir of late Francisco. The Trial Court on the basis of the evidence before it has also held that the plaintiffs had failed to prove that the mortgage created by Francisco had extinguished with the passage of time. The Trial Court further recorded a finding that the defendants were in peaceful possession of the suit property for more than 50 years.
Aggrieved by the dismissal of the suit by the Trial Court, the plaintiffs filed an appeal being Regular Civil Appeal No. 62/2006. The Appellate Court also framed points for consideration on the same lines as that of the Trial Court namely as to whether the plaintiffs prove that the said Francisco had not redeemed his mortgage and late Teodosio having not cancelled the same the mortgage got extinguished by lapse of time and one fourth share of late Francisco remained intact and the same was enjoyed by him till his death and thereafter by Leopoldina. The Appellate Court also framed a issue as to whether the plaintiffs proves that Leopoldina is the only heir of late Francisco and as such his one fourth share in the suit property which was devolved on her and the same share she has passed to appellant No. 1 by deed of gift executed in the year 1994. On the said issues, in so far as the birth certificate of Leopoldina was concerned, the Appellate Court observed that the birth certificate cannot be found fault with as the same was registered by the Competent Authority by following the procedure prescribed by law. However, in so far as to whether the said Leopoldina was the sole legal heir of Francisco, the Appellate Court held that in the absence of material evidence, such as the Succession Certificate and order passed in Inventory Proceedings, it was not possible to accept that Leopoldina was the sole heir of late Francisco. The Appellate Court also cast a suspicion as regards the said Leopoldina being the sole and universal heir of Francisco on the ground that she had expressed ignorance about the death of her brother and therefore, alongwith the said fact, in the absence of the said documents, the Appellate Court was of the view that it creates a doubt about her claim of being the daughter of late Cipiao. In so far as the death of Francisco is concerned though the death certificate was sought to be produced, the Appellate Court did not record any findings on the basis of the said death Certificate as the name mentioned in the said death certificate was of one Salu Fernandes. However, on the basis that it was not the case of the defendants that he was living today, the Appellate Court accepted the fact that the said Francisco was not alive.
On the aspect of possession both the Courts below on appreciation of the evidence before them and in the absence of the evidence produced by the plaintiffs to show that after extinguishing of mortgage, the said 1/4th share was in enjoyment of Francisco till his death and in juxtaposition to the evidence produced by the defendants which has been considered by the Appellate Court and reflected on page 16 of the judgment, a finding has been recorded that the defendants had been in enjoyment of the suit property and at no point of time, the said Leopoldina was in enjoyment of any part of the property. Both the Courts below have therefore concurrently held that since the said Leopoldina has failed to prove that she is the sole and universal heir of said Francisco, she had failed to prove her rights to the suit property and therefore, the Gift Deed executed by her in favour of the plaintiff No. 1 would be of no consequence.
Learned Senior counsel for the appellants Shri Pereira sought to lay much store on the observation of the first Appellate Court that no fault could be found with the birth certificate produced by the said Leopoldina in support of his submission that the Appellate Court had accepted that Leopoldina was the daughter of Cipiao and Josepha Furtado. As observed herein above, the Appellate Court has merely accepted the factum of the certificate having being issued by the proper authority. The Appellate Court has not recorded a finding that the said Leopoldina was the daughter of the said Cipiao or that she was the sole and universal heir of the said Francisco and therefore, the contention of the learned Senior counsel is misfounded.
The issuance of the said certificate and the validity of the said certificate has now been questioned by the defendants by filing a separate suit for the same. However, certain facts pointed out by the learned Senior counsel for the respondents cannot be ignored namely that the said Leopoldina had failed to produce the documents which would have been of crucial importance namely the Baptism certificate which would have disclosed the names of the parents. The fact that the birth is registered after 53 years has also not gone well with the Courts below. Registration of Births and Deaths Act 1969 prescribes a procedure to be followed after the time period for registration has lapsed but there was no material before the Appellate Court whether in fact such procedure was followed. This Court need not dwelve into the said aspect further as the same could be considered by the appropriate Court trying the suit which is filed by the defendants is the respondents herein. However, one aspect which has been considered by both Courts below is that in the Inventory Proceedings, which were filed after the death of the said Cipiao, his son Jose Eduardo had been declared as the heir and entitled to his estate and accordingly, the said Jose Eduardo succeeded to the one fourth share of Caetano who was the brother of Cipiao and who died a bachelor which was sold by him to the said Teodosio through whom the defendants claim. The question which begs an answer is that if the said Leopoldina was born in 1935 as she claims, she would have been the sister of said Jose Eduardo and would have also been declared the heir of the said Caetano. This aspect has been dealt with by the Courts below in coming to a conclusion that said Leopoldina has failed to prove that she was the sole and universal heir of Francisco who was another brother of Cipiao.
Both the Courts below have therefore, recorded concurrent findings of fact on the aspect of Leopoldina not being the sole and universal heir of Francisco and also as regards the possession of the defendants in respect of the suit property for a long period of time. Having considered the grounds of appeal and having heard the learned Senior counsel for the parties, in my view, the appeal does not involve any substantial question of law, the same is accordingly dismissed.