CARMA HILARINA AFONSO Vs. BOUDET DO ROSARIA AFONSO

JUDGEMENT

(1.) 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 :

(2.) 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 ?

(3.) 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.