MARIANA CARMELINA FERNANDES Vs. ANTONIO GOMES

JUDGEMENT

(1.) This appeal arises from the Order dated 30th August, 1999 passed by the Comarca Judge of Salcete and Quepem in Inventory Proceedings No. 99/97. By the impugned order, the learned judge has declared the deed of gift dated 16th august, 1976 executed by Smt. Maria Luzia trinidade Isabel Rebelo in favour of Miss Ida fernandes to be null and void.

(2.) Few facts relevant for the decision in the matter are that one Pedro Camilo fernandes was married to Smt. Maria Luzia trinidade Isabel Rodrigues who had six children by name Benjamina, Mariana, magdalena, Idalina, Cristalina and Alena. The said Pedro Camilo expired on 20th January, 1975. Likewise the husband of Mariana also expired leaving behind him his widow and his moiety holder said Mariana and said idalina alias Ida Fernandes. The widow of pedro Camilo Fernandes namely Maria Luzia trinidade Isabel executed a gift deed on 16th august, 1976 in favour of her grandaughter ms. Idalina alias Ida reserving to herself the lifetime usufruct of the disposable share in the gifted properties. The gift was stated to be on account of her-disposable share (cota disponivel) and enumerated five different properties namely 1/24 and 1/16 part of the property known as "accona Gaily" or "chaul" situated at Calata, Majorda, half of the property "nagano Udego" Registration No. 14848, half of property "nagano Udego" Registration no. 17416, half of property "addo or Vaddo vulgo Sondiem" and property "urbano". The said Maria Luzia expired on 4th April, 1985. Cristalina Fernandes, one of the legal heirs of Pedro and Maria Luzia instituted Inventory proceedings in the Court of Comarca of salcete and Quepem in the year 1997. The administrator appointed in the proceedings filed their list of assets for the purpose of disposition thereof in accordance with the provisions of law applicable to the Inventory proceedings. In the said Inventory proceedings, cristalina filed an application dated 9th november, 1998 praying that a declaration be issued that the Gift deed dated 16th august, 1976 executed in favour of Ida fernandes be declared as null and void. The said application was contested by the appellants and after hearing the parties, the impugned order came to be passed allowing the said application. Hence the present appeal.

(3.) Placing reliance in the decision of this court in the case of (Jose Antonio Philip pascoal da Piedade Ciriolo dos Milagres miranda Vs. Joao Luis Laurente dos Milagres miranda and others) 1, reported in 1999 (1) Goa l. T. 77, the learned Advocate for the appellants submitted that the Comarca Court could not have declared the entire Gift deed null and void though in view of the said decision in Jose Miranda's case, the Court could have very well taken into consideration the said gift to be of disposable quota of the donor in the properties. The Court below having failed to consider the same, has failed to exercise its jurisdiction, rendering the impugned order to be bad in law. Further relying upon the decision of the Apex Court in (F. M. Devaru Ganapathi Bhat Vs. Prabhakar ganapathi Bhat) , reported in (2004) 2 S. C. C. 504, the learned Advocate for the appellants has stated that the intention of the donor has to be understood by reading the entire gift deed as a whole and having so read the gift deed dated 16th August, 1976, would reveal that it was in fact the gift of the donor's disposable share and not of any specific property as such and even though the properties are enumerated in the Schedule appended to the Gift deed, the Gift deed could have been read excluding the said Schedule and having so read, there would have been no occasion for the Comarca Court to declare the entire deed to be null and void.