CONNIE MIRANDA Vs. ANTONIO JOAQUIM GRACIAS

JUDGEMENT

(1.) This appeal challenges the order dated 16th August, 2008 passed by the IIIrd Additional Civil Judge, Senior Division, Margao, in Inventory Proceedings No.178/2003-ADDL.III. There is no dispute that the inventory proceedings were initiated in the year 2003 to partition the estate of the deceased Brian Hilary Gracias, who expired without any descendants and consequently the Respondent herein being the ascendant were entitled to his assets. The Appellant is the widow of the said deceased. As per the law in force, the Appellant as moiety sharer is entitled to half share in the assets of the couple, while the remaining half devolves upon the Respondent. It is reported that the said inventory proceedings came to be disposed on 29th January,1998. Thereafter, in March 2003, additional inventory proceedings came to be filed in view of the fact that some of the assets had not been partitioned. In the said proceedings, an application was filed by the Respondent dated 17.02.2007 giving the correct description as far as item no.2 is concerned. The Appellants filed their reply to the said application on 15.3.2007 disputing the contentions of the Respondents. On 16.8.2008, an order was passed allowing the application at Exhibit B and directed the Appellant to deposit half of the amount of item no.2. Thereafter, the Appellant preferred a review to the said order dated 16.8.2008 by an application dated 17.11.2008 and the same came to be dismissed by order dated 6.3.2009. The present appeal has been filed to challenge the impugned order passed by the Inventory Court dated 16.8.2008, whereby the Appellant was inter alia directed to deposit 50 percent i.e. half of the amount received with regard to the said item no.2.

(2.) The Learned Counsel appearing for the Appellant has submitted that until and unless the inventory proceedings were disposed of, the Trial Judge has no jurisdiction to direct the Appellant to deposit half of the amount received by the Appellant. He submitted that an application was filed by the Appellant under Article 1383 of the Portuguese Civil Procedure Code claiming exclusive ownership of the said item no.2 and the same was not disposed by the learned Trial Judge at the time of passing the impugned order. He further submitted that the learned Trial Judge refused to pass an order on the said application on the ground that the impugned order had already been passed directing the Appellant to deposit half of the amount of the item no.2. The learned Counsel has further submitted that the item no.2 is an amount received on account of an insurance policy claim under a fatal accident which occurred in London and, as such, the same cannot be a part of the assets in the said inventory proceedings. He further submitted that the Respondent has no right at all to the said item which has been received by the Appellant, as it belongs to the Appellant and has accrued after the date of the opening of the inheritance.

(3.) On the other hand the Learned Senior Counsel appearing for the Respondent has submitted that the Inventory Court has powers to pass orders and take measures to protect the assets of the estate during the pendency of the inventory proceedings. The learned Senior Counsel further submitted that the impugned order is in a nature of an attachment as permitted under the Portuguese Civil Procedure Code for safe custody of the assets during the pendency of the inventory proceedings. He further submitted that the application under Article 1383 is not maintainable and as such, the question of considering the said application at this belated stage does not arise at all. He further brought to the notice of the Court that the order was passed on 16.08.2008 and the Appellant failed to comply with the said order up to this date and, as such, the question of granting any relief to the Appellant does not arise.