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Judgment
F.M. Reis, J.—Heard Shri Sudin Usgaonkar, learned Counsel appearing for the appellants and Shri G. Teles, learned Counsel appearing for the respondents. The above appeal challenges the judgment passed by the Lower Appellate Court dated 17.09.2003 passed in Regular Civil Appeal No. 75/2002 whereby an appeal preferred by the respondents was allowed and the judgment and decree dated 20.10.2000 passed by the Civil Judge Senior Division, Margao in Special Civil Suit No. 342/96/II was quashed and set aside. The suit filed by the appellants came to be dismissed. The above Second Appeal came to be admitted on the following substantial questions of law by order dated 26.02.2004 :
Whether the Appellate Court committed illegality holding the suit to be defective for non-inclusion of all other heirs merely, on account of prayer of declaration, overlooking that except the respondents, the other heirs had not disputed the title of Appellants within the meaning of Section 34 of the Specific Relief Act ?
Whether the Appellate Court committed illegality in overlooking that the mischief under Article 1766 of the Civil Code of not bequeathing specific property was cured on account of registered Deed of Exchange between the said two legatees inter-se with the specific acknowledgment by the father in his Will, they become exclusive owners of the entire half of the testator at the time of cause of action of the suit ?
Whether the Appellate Court committed illegality holding that the bequest and the suit for eviction is bad for want of Inventory/Partition Deed overlooking that so long as any heir does not demand partition by way of Inventory, the bequest made is valid and legal ?
The brief facts of the case are that the appellants filed a suit for declaration and consequential reliefs of possession on the ground that they are the owners in possession of the property known as "Predio Mixto Urbano Odaxiro" also known as "Odaxiro" enrolled in the Matriz under No. 362 and surveyed under no.69/4 of Village Betalbatim, wherein there exists a dwelling house. It is the case of the appellants that the said suit property includes a house existing therein belonging to Jose Maria de Jesus Mousinho Afonso alias Jose Maria Afonso and his wife Maria Piedade Furtado Afonso, who expired on 15.03.1996 and 18.05.1982 respectively. The said Maria Piedade by a Will dated 08.04.1981 bequeathed half of the suit property to her two sons, Daniel Fatima Afonso and Boudet do Rosario Afonso, who is respondent no.1 herein. The late Daniel Afonso was the husband of the appellant no.1 and father of the appellant no.3. By the said Will, Maria Piedade had bequeathed half of the half of the eastern side to her son Daniel Afonso and half of half towards the western side to her other son, the respondent no.1. Subsequently, by the said Will, the said Maria Piedade had also bequeathed half of another property known as "Odaxiro" situated at Betalbatim, and enrolled in the Matriz No.380, being half of half of the eastern side to Daniel Fatima Afonso and half of half towards the western side to Boudet Afonso. Upon the death of the said Maria Piedade, the said Daniel Afonso and the respondent no.1 executed a Deed of Exchange dated 27.07.1987 whereby the said parties have exchanged half of the half of the said respective properties. The respondent no.1 gave to Daniel his half of half of the suit property i.e. survey no.69/4 and Daniel gave his half of half of Matriz No. 380 to the respondent no.1. It is further the case of the appellants that in view of the said Deed of Exchange, the said Daniel become the owner of the half of the suit property.
Subsequently, the said Jose Maria Afonso, executed a Will drawn on 27.07.1987 bequeathing half of the suit property to his son Daniel Fatima and by a modified Will dated 16.06.1992 bequeathed half of half of the western half of the suit property to his grandson, the appellant no.3. It is further the case of the appellants that in view of the said Wills of Maria Piedade and Jose Maria Afonso, the appellant no.3 became the owner of 1/4th of the western side of the suit property and late Daniel Afonso became the owner of the remaining 3/4th of the suit property. The said Daniel Afonso expired on 19.09.1987 leaving behind the appellant no.1 who remarried to the appellant no.2.
It is further their case that they were residing in the suit house existing in the suit property and that they are entitled to be ownership in possession thereof upon the death of said Jose Afonso and his wife Maria Afonso. As the respondents are occupying part of the residential house, the appellants filed a suit praying inter-alia for a declaration that they are in possession of the suit property and the house existing therein as well as for eviction of the respondents from the portion of the house occupied by them.
The suit filed by the appellants came to be resisted by the respondents by raising some preliminary objections that the suit required to be dismissed for nonjoinder of necessary parties. It is further their case that since the property is registered in the survey records in the name of late father of the respondent no.1, the appellants, respondents and the legal heirs of Jose Afonso and Maria Afonso are entitled to the suit property. It is further denied that the appellants are in possession of the suit property and the house existing therein. It is further their contention that the house existing in the suit property is an ancestral house and they are also lawful co-owners of the ancestral house. It is further their case that after the death of Jose Afonso, the sister of the respondent no.1 informed to all the legal heirs and family members that she was not considered for her share and accordingly it was decided that the suit house shall be used by the legal heirs. The respondents did not dispute the execution of the Will dated 08.04.1981 by late Maria Afonso but stated that the ancestral properties were bequeathed to the other legal heirs of the appellants and knowingly did not join them in the suit. They also admitted the execution of the Deed of Exchange dated 27.07.1987 but stated that it was merely agreed by the appellants and the respondents that the ancestral house existing in the suit property shall be used by them jointly. Accordingly, it was submitted that the suit deserves to be dismissed.
The learned Civil Judge Senior Division, Margao, by judgment and decree dated 20.10.2000 decreed the suit filed by the appellants. The learned Judge held and declared that the appellants are the exclusive owners and possessors of the suit property enrolled under matriz No. 362 and surveyed under no.69/4 of Village Betalbatim and the house standing therein. The respondents were also directed to vacate the suit house and hand over vacant possession of the same to the appellants.
Being aggrieved by the said judgment and decree, the respondents preferred an appeal before the learned District Judge, South Goa, Margao being Regular Civil Appeal No. 75/2002. By judgment and decree dated 17.09.2003, the learned Lower Appellate Court allowed the said appeal. Consequently, the appellants preferred the above Second Appeal which came to be admitted on the aforesaid substantial questions of law.
Shri Usgaonkar, learned Counsel appearing for the appellants has assailed the impugned judgment on the ground that there is no dispute about the execution of the Will in favour of Daniel Afonso by his parents. The learned Counsel further pointed out that as per the first Will executed in 1981 by the deceased mother of the said Daniel, half of the eastern half came to be bequeathed in favour of the said Daniel whereas the half of the western side of the property came to be bequeathed in favour of the respondent no.1. It is further his case that upon the death of the mother, the half of western side of the property was exchanged with another half of the property which was also bequeathed in favour of the said Daniel by execution of Deed of Exchange. The learned Counsel further pointed out that thereafter the father of the said Daniel executed a Will in favour of the grand son Daniel Afonso whereas remaining half of the suit property and the house existing therein came to be bequeathed in favour of said Daniel. The learned Counsel has also taken me through the Will executed by the said father on 16.06.1992 at Exhibit PW1/I and specifically pointed out a portion therein which clearly manifest that the said father Jose Afonso wanted that the whole suit property and the house were to be owned and possessed by the said Daniel who was his grand son. The learned Counsel further pointed out that there is no dispute raised by the respondents to the effect that the interpreter of the said Will was not present and consequently on the basis of the Will executed by the parents in favour of the appellants, the suit property and the house existing therein came into possession of the appellants. The learned Counsel further pointed out that the Lower Appellate Court has erroneously come to the conclusion that the Inventory proceedings ought to be initiated by the parties for partitioning the shares of the parents before the appellants could claim the possession of the suit property, as such contentions are totally misplaced as upon the death of the testator the ownership and possession of the property devolved upon the said Daniel and said grand son. The learned Counsel further pointed out that the learned Judge has erroneously come to the conclusion that the suit is also bad for non-joinder of necessary parties as according to him the remaining legal heirs have no interest in the suit as nothing of the suit property came to be bequeathed in favour of the other legal heirs. The learned Counsel as such submitted that the substantial questions of law framed by this Court are to be answered in favour of the appellants.
On the other hand, Shri G. Teles, learned Counsel appearing for the respondents has supported the impugned judgment of the Lower Appellate Court and pointed out that the learned Judge has rightly come to the conclusion that the other legal heirs of the deceased Jose Afonso and Maria Afonso were necessary parties to the suit and as such the suit itself was bad in law. The learned Counsel further pointed out that the appellants cannot claim any right to evict the respondents unless and until inventory proceedings are initiated and the property is allotted to the appellants. The learned Counsel further pointed out that unless and until the disposal quota is ascertained, the question of considering whether the Wills executed by the parents in favour of the said Daniel and the respondent no.1 are in-officious and cannot arise. The learned Counsel further pointed out that such exercise is to be carried out only in the inventory proceedings and as such the learned Judge was justified to come to the conclusion that the appellants cannot claim possession of the suit property unless and until the inventory proceedings are filed. The learned Counsel further pointed out that as per the Will executed by the appellants, the disposal quota is not said to be part of the suit property bequeathed in favour of the appellants and as such the question of claiming any right to the ancestral house would not arise at all. The learned Counsel further pointed out that it was agreed between the parties that the ancestral house would be shared in common and as such the appellants are not entitled to claim exclusive possession of the suit property. The learned Counsel as such submitted that the substantial questions of law framed by this Court are to be answered in favour of the respondents.
Upon hearing the learned Counsel and on perusal of the records, the fact that the suit property was bequeathed in favour of the deceased Daniel who was the husband of the appellant no.1 and the father of the appellant no.3 has not been disputed. It is not in dispute that the mother of the said deceased Daniel had bequeathed half of the eastern half in favour of the said Daniel and the half of the western side in favour of the respondent no.1. It is also borne out from the records that after the death of said Maria Afonso, the respondent no.1 and said deceased Daniel had exchanged the said half of the western half of the suit property with another half which came to be bequeathed in the property enrolled in the Matriz under No.380 in favour of respondent no.1. Consequently, upon the death of the mother of the said Daniel, he is entitled to half of the suit property. The remaining half of the property admittedly belong to the other moiety sharer who is the father namely Jose Maria. Late Jose Maria after the death of his wife, executed a Will of his half of the suit property in favour of his son Daniel who predeceased him. Thereafter, in the year 1992, another Will came to be executed whereby his half share came to be bequeathed in favour of his grandson Daniel Afonso (Junior). On perusal of the said Will, there is a specific recital to the effect that such disposition has been made by the testator Jose Maria in order that his grand son could be the owner of the whole suit property. As such, the contention of the learned Counsel appearing for the respondents Shri G. Teles to the effect that only the property was bequeathed and not the house existing therein cannot be accepted.
On a pointed query to the learned Counsel appearing for the respondents as to whether any such defence was raised by the respondents in the written statement, Shri G. Teles fairly conceded that though such defence was not raised in the written statement nevertheless, it is his contention that such submissions can be borne out from the records in the proceedings. But however even on perusal of the judgment of the Lower Appellate Court, I find that no such submission was advanced before the Lower Appellate Court. As such, the contention of the learned Counsel appearing for the respondents Shri G. Teles to the effect that the house was not included in the bequest made cannot be accepted. On the face of the documents on record, this fact becomes more clear on perusal of the Deed of Exchange concerning the bequests made to the respondent no.1 and deceased Daniel in the year 1987. On perusal of Schedule ''B'' to the said Deed of Exchange, there is a specific statement made therein that the suit property includes the residential house. On perusal of Schedule ''F'' to the said Deed of Exchange, the half of the said Schedule ''B'' has been exchanged in favour of said deceased Daniel. On the face of such evidence on record wherein the respondent no.1 was himself a party to the said Deed of Exchange, it is not open to the respondent no.1 to now contend that the house existing in the suit property is not part of the bequest made to the deceased Daniel. On the basis of material on record, I find that the suit property came to be bequeathed in favour of the said deceased Daniel and the remaining half in favour of his son namely Daniel Afonso (Junior) who is the grand son of the said testator Jose Maria.
The learned Lower Appellate Court whilst passing the impugned judgment has come to the conclusion that the appellants would be entitled to the ownership and possession of the suit property on the basis of the Wills only after the inventory proceedings are initiated and the properties are allotted to the appellants. These findings of the learned Lower Appellate Court cannot be accepted in view of Article 2011 of the Portuguese Civil Code. Article 2011 of the Portuguese Civil Code clearly provides that the transmission of the ownership and possession of the inheritance to the heirs whether instituted or legal, takes place from the moment of the death of the testator. In the present case, considering the provisions of Article 2011 of the Portuguese Civil Code, as on the date of the opening of the inheritance, the ownership and possession of the inheritance devolves upon the heirs who are also instituted. In the present case, it is not in dispute on the basis of the Will executed by the parents, the said Daniel and his son the appellant no.3 were bequeathed the suit property. Hence, upon the death of the mother in the year 1982, the half share of the suit property came to be transmitted in favour of the said son Daniel in view of the said Will. Upon the death of said Daniel, the said half of the property came to be transmitted in favour of the appellant no.3 and the appellant no.1. The remaining half of the suit property came to be transmitted in favour of the appellant no.3, upon the death of his grand father, namely the said Jose Maria. Upon his death in the year 1996, his half share in the suit property came to be transmitted in the ownership and possession in favour of the said appellant no.3. As such, the ownership in the said property came to be transmitted in favour of the appellant no.1 and the appellant no.3. It would also be advantageous to note that under Article 1735 of the Portuguese Civil Code, any person can succeed on the death of another, to all the properties of the deceased or to a part thereof under disposition of his last Will as well as by virtue of the law. In the first case, it is testamentary succession and in the second case it is legal succession. In the present case, in view of the Will executed by the deceased parents by virtue of the testamentary succession, the appellants came to own the suit property. Considering the contention of Shri Teles, learned Counsel appearing for the respondents to the effect that the Wills which have been executed are on account of disposable quota and as such the disposal quota has to be ascertained in the inventory proceedings, I find that merely because the appellants are entitled to enjoy the suit property on the basis of the testamentary succession does not preclude any legal heirs if they are so entitled to contend that any part of the disposition of the testators is in officious. It is also pointed out by the learned Counsel appearing for the appellants that up to this date no legal heirs have initiated any proceedings to declare that the disposition made by the parents are in-officious. Nevertheless, it shall not preclude any of the legal heirs to seek such a declaration if they are so advised in an appropriate proceedings in accordance with law.
Be that as it may, considering that the ownership and possession of the suit property has been transmitted in favour of the appellants by virtue of the testamentary succession, for the reasons stated herein above, the Lower Appellate Court was not justified to come to the conclusion that the appellants are not entitled to seek an eviction of the respondents from the suit house. It is to be noted that it is not in dispute that the respondents are enjoying the property which has been exchanged in their favour by the said deceased Daniel pursuant to the Deed of Exchange which was executed in the year 1987. The authenticity and the legality of the Wills have not been disputed by the respondents herein. Hence, it was not open to the Lower Appellate Court to come to a conclusion that the appellants would be entitled to the possession of the suit property only upon initiating inventory proceedings. The findings of the learned Judge to the effect that all the legal heirs are also necessary parties to the suit cannot be accepted. In the present case, only dispute is with regard to the disposition in favour of the appellants pursuant to the Will executed by the parents in favour of the appellants and respondents. It is not the case of the respondents that any of the legal heirs have been given share in the suit property by virtue of the said Will. Hence, it is not open for the respondents to contend that other legal heirs of the deceased parents are also necessary parties to the present suit. The suit is filed to claim the possession of the suit property with the respondents by virtue of testamentary succession in favour of the appellants herein. It is not the case of the appellants that any of the other legal heirs are enjoying any portion of the suit property. Hence, the learned Judge was not justified to come to the conclusion that the suit is bad for non-joinder of necessary parties.
The question of invoking Article 1766 of the Portuguese Civil Code in the present case does not arise at all. This is not the case wherein any co-ownership property has been bequeathed or transmitted by the testators. The testators have in accordance with law which is in force in the State of Goa have bequeathed the property in favour of the appellant no.3 and the husband of the appellant no.1 in the manner stated herein above. Hence, the question of invoking Article 1766 of Portuguese Civil Code to hold that coownership property has been bequeathed is totally misplaced. Hence, the findings to that effect of the Lower Appellate Court cannot be accepted.
Shri Usgaonkar, learned Counsel appearing for the appellants does not press for any declaration at this stage as according to him, in view of the provisions of the Portuguese Civil Code, the property devolved upon the appellant no.1 and the appellant no.3 by testamentary succession. In the facts and circumstances of the case and in view of the contention of Shri Usgaonkar, learned Counsel appearing for the appellants, the prayer for declaration is dismissed as not pressed. In view of the above, I pass the following :
ORDER
(i) The appeal is partly allowed.
(ii) The impugned judgment and decree dated 17.09.2003 passed by the Lower Appellate Court is quashed and set aside.
(iii) Special Civil Suit No. 342/96/II filed by the appellants is partly decreed in terms of prayer clause (b).
(iv) The appeal stands disposed of accordingly with no order as to costs.