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Judgment
A.P. Lavande, J.—Heard Mr. Menezes, learned Counsel for the Petitioners and Mr. Coutinho, learned Counsel for the Respondent No. 2. None appears on behalf of Respondent No. 1.
Rule. By consent of the learned Counsel for the parties heard forthwith.
By this petition under Article 227 of the Constitution of India, the Petitioners challenge judgment and order dated 22/9/2010 passed by the District Judge-II, South Goa,Margao in Misc. Civil Appeal No. 84/2009 dismissing an appeal against order dated 11/2/2005 passed by the Civil Judge, Senior. Division., Vasco-da-Gama in Inventory Proceedings No. 14/1991.
Briefly the facts necessary for disposal of this petition are as under:
Inventory proceedings No. 14/91/A were instituted on the death of Domingos Colaco, husband of the Respondent No. 1 and father of Appellant Nos. 1 and 3 and Respondent No. 2. The Respondent No. 1 was appointed as Cabeca de Casal of the estate of the deceased.
Respondent No. 1 in accordance with Article 1377 of the Portuguese CPC submitted a list of properties belonging to the estate of the deceased along with a tentative value of the two immovable properties at Item Nos. I and II. The bailiff valued Item Nos. I & II at Rs. 75,000/-as against Rs. 50,000/-the valuation given by the Respondent No. 1.
The Civil Judge accepted the valuation fixed by the Bailiff and directed the parties to comply with Article 1391 that is calling for second valuation and objections by the parties after convening a family council.
The two properties described in the list of assets were partitioned with the consent of the parties in terms of the final schedule of partition drawn up by the court. The court by its order directed the parties to comply with Article 1418 that is the parties could ask for rectification or raise any objections. No. objections were raised.
Judgment and Decree was passed in terms of the chart of partition and accordingly Item No. 1 was allotted in terms of 1/3rd share to each of the three children and their spouses and Item No. 2 was allotted to Respondent No. 1 as moiety holder.
In the year 2003, after the final partition, Respondent No. 1 filed an application for rectification of the description of Item No. 2 by substituting the area in the description of 689 square metres by a larger area of 2250 sq.metres.. The Trial Court by order dated 11/2/2005 allowed the application by which the value of the larger area was maintained at Rs. 75,000/-.
The Petitioners herein preferred an appeal to the District Court which was made over to the District Judge II and by order dated 22/9/2010 the District Judge dismissed the appeal.
Mr. Menezes, learned Counsel for the Petitioners placing reliance upon Articles 1425 and 1426 of the Portuguese CPC submitted that in view of the dispute raised by the Petitioners regarding the area, the District Court could not have disposed of the application for correction without holding a summary inquiry and therefore the impugned orders passed by both the Courts below are not sustainable in law and are liable to be quashed and set aside.
Mr. Coutinho, learned Counsel for the Respondent No. 2 has supported the impugned orders.
Article 1425 and 1426 of the Portuguese CPC reads thus:
Article 1425-
(Amendment of the partition by agreement)
The partition, even after the judgment has become res judicata, may be amended in the same inventory by agreement of all the interested parties or of their representatives, if there was a factual error in the description or qualification of the property or any other error which may vitiate the will of the parties.
Article 1426
(Amendment of the partition in the absence of agreement)
In the case of the circumstances described in the previous article, when the interested parties do not agree on the amendment, the latter may be requested through a normal or summary legal action, depending on the value, it being necessary, for the legal action to proceed, that the error became known after the judgment.
Since all the interested parties did not agree that there was a mistake in the area mentioned, it was necessary for the Inventory Court to hold a summary inquiry, in terms of Article 1426, which admittedly has not been held in the present case.
This being the position, the impugned orders dated 11/2/2005 and 22/9/2010 passed by both the Courts below cannot be sustained in law and are liable to be quashed and set aside.
In view of the above, the impugned orders passed by both the Courts below are quashed and set aside. The Inventory Court shall decide the application filed in the year 2003 after holding a summary inquiry in terms of Article 1426. The Inventory Court shall hold the summary inquiry expeditiously and dispose of the application in accordance with law and in any event on or before 30th March, 2012. The Petitioners to appear before the Inventory Court on 30th August, 2011 at 10 a.m.
The petition stands disposed of. No. order as to costs.