DOMINGOS CAETAN RODRIGUES Vs. JOAS PHILLIPS RODRIGUES

JUDGEMENT

(1.) THIS Second Appeal is directed against the judgment and order, dated 30th April, 1990 of learned Additional District and Sessions judge, Panaji, in Regular Civil Appeal No. 64 of 1986 whereby the appeal was allowed and the judgment and decree, dated 31st July 1986 of the learned Civil judge, Junior, Division Panaji, dismissing the Suit No. 258/76/d was set aside and the 1st respondent's suit was 'decreed and the Defendent No 1, the predecessor of psesent appellants, as well as present Respondent No. 2 were ordered to deliver to Respondent No. 1 vacant possession of the suit house within sixty days from the date of the order.

(2.) MRS. Preciosa Fernandes had two sons - (i) Respondent No. 1 and (ii) Domingos, the original Defendant No. 1, who has since died and whose legal representatives are the present appellants. Respondent No. ] has a daughter by name Eulanda By a gift, deed, dated 6th May, 1970 Preciosa gifted the suit property so as to give the corpus or naked property to Eulanda while giving the usufruct thereof to Respondent No. 1. Thereafter on 2lst July, 1974 preciosa died. Further facts which cannot be disputed at this stage were that respondent No. 1 lived in the suit house during certain times of the year and he was there in May 1976 and then he locked the suit house and went to bombay. On 29th November, 1976 when he came to Goa he found that he had been dispossessed Domingos who had allowed the present Respondent No. 2 to occupy the suit property. Respondent No. 1 therefore filed Suit No. 258/76/d in the Court of the Civil Judge, Junior Division, Panaji, for recovering possesion of the suit property. There was a dispute regarding the nature of the suit but on that point the matter was considered by the Division Bench of this Court and it, was held that the suit was not based on Section 6 of the specific Reliefs Act but it was based on title, the title being the right to usufruct of the suit property It was further held that the defence of Domingos the then defendant No. 1 was that the 1st respondent's right of usufruct had been extinguished by collation under the law of succession. In the suit Domingos was made Defendant No. 1 while the present Respondent No. 2, Shaba narvenkar, was made Defendant No 2. The trial Court dismissed the 1st respondent's suit by the judgment and order, dated 31st July, 1986, whereupon respondent No. 1 filed Regular Civil Appeal No. 64 of 1986. The 1st respondent's appeal was allowed and his suit for recovering possession of the property from the defendants was decreed. It is under these circumstances that the present Second Appeal has been filed by the legal representatives of original defendant No. 1, Domingos.

(3.) IT may be pointed out that the law applicable in this case is the family Laws of Goa, Daman and Diu which form part of the Civil Code In force in the territory of Goa, Daman and Diu. Under this law, "decujus", which means the Estate Leaver, can dispose of only certain part of his property by way of gift and if he makes a gift of his property in excess of the disposable portion then such excess, which may be referred to as the undisposable excess, can on the death of the "decujus", be claimed by the heirs of the "dacujus" according to intestate succession. If such gift is made to an heir then the gifted property is subject to "collation". In Black's Law Dictionary at page 710, collation is defined as follows :