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Judgment
A.H. Joshi, J.—Heard finally by consent.
Present appellants who are objectors in Inventory Proceedings No. 131/1998/I, make a grievance against the order passed by learned 1st Additional Civil Judge Senior Division, Margao, on 18.6.2008, thereby rejecting the appellants'' application.
Appellants filed application on 23.9.2002. In this application they urged as follows:
The interested parties abovenamed submit that the Inventariado Ganaba Dessai was not the exclusive owner of the properties at serial No. A (a), (b), (c ), (d), (e) and B(a) for him to be in a position to specifically bequeath in favour of Tulsi and Nalini specific portions of each of the properties mentioned above. Under article of the Portuguese Civil Code a co-owner cannot bequeath any specific portion or property to any person. Any such bequeaths made of any specific property or portion renders the will null and void. The Will dated 18.9.1991 made by Ganaba Dessai is therefore, null and void since it purports to bequeath specific properties to Tulsi and Nalini when admittedly the Testator Ganaba Dessai was not the sole owner of those properties. The Cabeca de Casal herself acknowledges that the Inventariado Ganaba Dessai was first married to Yashoda G. Dessai and that she expired on 4.8.1975 leaving behind as her heirs the following:
(1) Vassant Ganaba Dessai, married to Nirmala V. Dessai.
(2) Tulsi Dessai, married to Sadanand Dessai.
(3) Nalini Dessai, married to Balkrishna Pate. The Cabeca de Casal herself states in her statement on that Ganaba Dessai got married the second time to Jailabai Dessai and from this marriage they had the following children :
(1) Peroze Dessai, married to Shantaram Sawant,
(2) Sharoj Dessai, married to Ashok Sawant.
(3) Ajit Dessai, married to Padmini Dessai. This being so upon the death of Yeshoda Dessai, her children Vassant, Tulsi and Anuradha became half owners of all the properties mentioned above and therefore Ganaba Dessai was not the sole owner of those properties when he made the said Will dated 18.9.1991. He thus could not have bequeathed specific properties to Tulsi and Nalini.
Quoted from application dated 23.9.2002 from pages 59 and 60 of paper book
Applicants appellants are seen to have taken a totally different stand namely sought a declaration that Will subject matter is �invalid� in the prayer contained in said application.
Learned Trial Judge has recorded finding that effect of legality etc., of the Will can be gone into after the partition is effected. It is clear a ground objecting the gift of specific properties in absence of specified shares can be scrutinized after the partition is settled position of law and is so accepted by trial Court.
In these premises, the impugned order does not call for interference. Appeal is dismissed.
In the circumstances, parties are directed to bear their own costs.