SHUBANGI APA DHURI Vs. SHARAYU MANOHAR KOLGAOKAR

JUDGEMENT

(1.) The appellants sued for exercising their right of pre-emption against the respondents. The suit came to be dismissed, inter alia, on the ground that it was barred by the law of limitation. An appeal therefrom has been dismissed. In this second appeal, two substantial questions of law with regard to the period of limitation and implied repeal of the limitation, specifying period of limitation are framed, which are as under :

(2.) The plaintiffs exercised their right of pre-emption under Article 1566 of the Portuguese Civil Code (PCC), the relevant part of which runs thus :

(3.) The PCC which was enacted by the Portuguese has not been repealed after the liberation of Goa. The plaintiffs, therefore, could exercise their right under the aforesaid Article, as they are co-owners of the suit property with the defendants. Article 1566 prohibits sale by a co-owner if other co-owner desired that part which was sold. If notice of sale was not given by the co-owner selling his undivided share to a stranger, he could exercise his right of pre-emption, but only if he applied within six months from the date of knowledge of the sale. The law of pre-emption contained in Article 1566 is, therefore, a complete Code. It sets out substantive, as also procedural aspect of exercise of such right. It would be applicable either wholly or not at all. (This shall be seen from the enunciation of the Supreme Court in the case of Syndicate Bank vs. Prabha D. Naik and another etc., 2001 AIR(SC) 1968, as shall be seen presently).