GREGORY DE SOUZA Vs. ANTHONY GAUDIENCE DE SOUZA

JUDGEMENT

(1.) Heard Mr. A. D. Bhobe, learned counsel appearing for the appellants and Mr. V. Menezes, learned counsel appearing for the respondents.

(2.) The above appeal challenges the judgments passed by the Courts below whereby the suit filed by the respondents came to be decreed and the challenges to such decree by the appellants came to be dismissed by the Lower Appellate Court.

(3.) Briefly, it is the case of the appellants that the respondent nos. 1, 2 and 3/original plaintiffs filed a suit for declaration and permanent injunction against the appellants/original defendant nos. 1 and 2 and the respondent nos. 4 to 7/original defendant nos. 3 to 6 being Special Civil Suit No. 101/2007 on the ground that the appellant no.1 and the respondent no.4 are children of Daniel Mario D Souza and Louisa D Souza, who expired on 9/1/1985 and 6/5/1990. It is their case that their parents had filed a suit bearing No. 144/1981 against one Joaquim Francis D Souza and others for partitioning the property bearing survey Nos.77/4 and 78/9 of village Candolim which came to be decreed on the basis of the compromise terms on 20/9/1990. It is further their case that since respondent nos.1 to 7 and the appellants were abroad, for the purpose of executing the decree, the respondent nos. 1 to 7 executed a power of attorney in favour of the appellant no.1 so as to enable the appellant no.1 to carry out the execution of the decree in the said suit as well as to secure the transfer of the estate in favour of all the heirs of the said deceased parents. It is further their case that based on such power of attorney, the appellant no.1 filed Inventory Proceedings No.98/95 in the Court of the learned Civil Judge Senior Division, Mapusa in which he disclosed only the immovable property and did not disclose the movable assets including the deposits in the banks etc. It is further their case that when the respondent nos. 1, 2 and 3 tried to inquire with the appellant no.1 regarding the steps taken by him in the Inventory Proceedings, he gave an impression that it is not yet finalized and that around November, 1996, at the request of the appellant no.1, the respondent nos. 1 to 7 sent a Wakalatnama as the power of attorney held by the appellant no.1 could not be utilized for the purpose of the Inventory Proceedings. It is further their case that the respondent nos. 2 and 3 visited Goa on the last occasion in the year 1982 and that they were informed that over the years, the proceedings for the transfer of property had not been concluded. It is further contended that on 7/5/2007 the appellant no.1 furnished an explanation to the respondent no.1 and as such the respondent nos.1, 2 and 3 were not satisfied by such explanation. Thereafter, it is contended that the respondent no.1 came down to Goa on 8/9/2007 and had inspection of the Inventory Proceedings and during the said inspection, they learnt that the appellant no.1 without notice to the respondent nos. 1, 2 and 3 held an auction in the Inventory Proceedings and fraudulently transferred all the properties to himself as they were not given any notice of auction proceedings. Consequently, the suit was filed for declaration, injunction and other reliefs. On being served, the appellants filed written statement disputing the said claim and contended that the suit itself is barred by limitation as it was filed to challenge the decree passed in 1998. The appellants also denied that the appellant no.1 had requested the respondent nos. 1 to 7 to execute the power of attorney in favour of the appellant no.1 and contended that the respondent nos. 1 to 7 had voluntarily executed such power of attorney in his favour. It is further their case that the proceedings which have been initiated were in accordance with law and there was no fraud committed as alleged. It was also contended that the respondents were represented by an Advocate who had filed Wakalatnama and disputed the claim put forward by the respondents. After issues were framed and the evidence was recorded, the learned Trial Judge by judgment dtd. 14/5/2012 decreed the suit filed by the respondents. Being aggrieved by the said judgment, the appellants preferred an appeal before the Appellate Court which came to be dismissed by judgment dtd. 8/10/2015. Being aggrieved by the said judgment, the appellants have preferred the present Second Appeal.