SHRI FRANCISCO DE CASTRO PEREIRA, OF FULL AGE, AND OTHERS Vs. LALCHAND NATHALAL SHAH (SINCE DECEASED) THROUGH HIS LEGAL REPRESENTATIVES

JUDGEMENT

(1.) The appellants herein were the plaintiffs in special civil suit No. 151/84/A ("plaintiffs" for short). The challenge in this appeal is restricted to the sale deed dated 24.5.1977, executed by the mother of plaintiff No. 1 in favour of defendant No. 1 (since deceased) by which the said mother had sold to respondent No. I (original defendant No. 1 - since deceased and now represented by his heirs) a property known as "Casas de Morada" consisting of a residential house having land registration No. 12062 and matriz No. 1359 along with movables existing in the house situated in the said property.

(2.) Some more facts are required to be noted do dispose of the present appeal. Plaintiff No. 1 - Francisco de Castro Pereira, Abel Cristovao Castro Pereira, and Terezinha Maria Florinda Castro Pereira are the three children of Maria Miqueline Melo e Castro Pereira and Joao des Remedies Pereira. The said Francisco de Castro was married to Smt. Mariana Elelvina Vaz e Castro Pereira (plaintiff No. 2). The father of the said Francisco, the said Abel and said Terezinha died on or about 22.12.1956 and upon his death, their mother initiated inventory proceedings in the year 1962 or thereabout. The said Abel and the said Terezinha on or about 15.2.1963 executed a General Power of Attorney in favour of their said mother, the said mother, the said Maria Miquelina Melo e Castro Pereira, including a power to sell both movable and immovable properties belonging to them. On or about 24.12.1964, the said Francisco along with his wife (deceased plaintiff No. 2) sold their share in the paternal estate of his father in favour of their said mother for a sum of Rs. 15,000.00 and later on by a sale deed dated 24.5.1977 (Exhibit-46), the said mother Smt. Maria Miquelina Melo e Castro Pereira sold to defendant No. 1 (since deceased) the said property known as "Casas de Morada" for a sum of Rs. 25,000.00. The said mother died on or about 13.8.1982 and it appears that after the plaintiffs relinquished their share in the paternal estate, the inventory proceedings filed by the said mother in the year 1962 or thereabout, remained dormant, to be revived by the said Francisco after the death of his mother. In fact, it appears that the said inventory proceedings were abandoned by the said mother, after the plaintiffs relinquished their rights to their paternal estate and, in fact, it was stated by PW 1, Mousinho de Silva Soares, the attorney of the said plaintiffs that the said proceedings were closed and where reopened by plaintiff No. 1 upon the death of the said mother, who was otherwise acting as the Cabeca de Casal/Administrator in the inventory proceedings initiated by her upon the death of her said husband. All the three children of said Maria Miquelina Melo e Castro Pereira and Joao des Remedios Pereira to whom the suit property belonged, had migrated to Portugal. After the death of said Maria Miquelina Melo e Castro Pereira, the said inventory proceedings were revived by plaintiff No. 1.

(3.) It appears that the said plaintiffs were compelled to file the said special civil suit No. 15/84 in view of the order passed by the inventory Court dated 3.9.1984, by which, it was held that since the properties were in possession of a third party, the plaintiffs ought to take action by filing a separate suit. There is no dispute that in the inventory proceedings, upon the death of said Joao des Remedios Pereira, the mother Smt. Maria Miquelina Melo e Castro Pereira was appointed as the Cabeca de Casal/Administrator and after the plaintiffs revived the proceedings, after the death of their mother, plaintiff No. 1 was appointed as the Cabeca de Casal/Administrator.