MRS. IDA BARRETO, WIDOW OF ANTONIO, MAJOR TEODOSIO FURTADO Vs. MR. MAXMIANO GUILHERME FURTADO AND HIS WIFE AND ANOTHER

JUDGEMENT

(1.) These two appeals deal with the primary objection to the maintainability of the appeals before this Court raised on behalf of the respondents in both the appeals. The appellants in the first Appeal from Order had challenged the order dated 15/11/2014 and Order dated 11/12/2014 passed by the Additional Senior Civil Judge, Margao on the premise that there was a misconstruction of the provisions of Art. 1417 of the Portuguese Civil Procedure Code. It was also challenged on the premise that the Trial Court had failed to notify to whom the owelty money was payable once the registry had prepared the chart of partition and found that the money was payable. The Trial Court had grossly misread clause 'c' of Art. 1417 and ought to have held that the Inventory Court had no power to extend the time to deposit the owelty money, much less did it have the powers to deposit the money in instalments. The appellants in this appeal had therefore sought for a reversal of the impugned order passed by the Trial Court. The respondents had raised a preliminary objection to the maintainability of the appeal on the premise that the jurisdiction to entertain the appeal lay with the District Court and that this Court had no powers to deal with the appeal.

(2.) Shri M. B. D'Costa, learned Senior Counsel on behalf of the appellants contended that in terms of Art. 1369 of the Portuguese Code of Civil Procedure the initial valuation of the property would be spelt out by the parties initiating the Inventory Proceedings, that in terms of Art. 1387, the Court had to order the appraisal of the properties by the appraiser where no questions were raised against the description or those so raised had been decided. The next stage of valuation would arise when the licitation took place and parties offered the market value. He adverted to the commentary on Judicial Partition by Antonio Joao de Lopes Cardoso which observed that the admissibility of the appeal in the Inventory Proceedings, when the initial value is within the jurisdiction of first instance, depends upon the value which is recorded in the Chart of Partition and submitted that licitation was relevant for determining the Forum of appeal. He also referred to Art. 1411 which referred to the stage at which licitation was done apart from partition as contained in Art. 1414 and of the Chart of the Partition being drawn thereafter in terms of Art. 1416 and submitted that based on the valuation, the appeal was maintainable before this Court. He next referred to Sec. 451 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 and submitted that in terms thereof, an appeal from the final order made in the Inventory Proceeding shall lie to the competent Court depending upon the value of the assets and such appeal shall be deemed to be an appeal under Sec. 96 of the Code of Civil Procedure, 1908.

(3.) Shri M. P. Almeida, learned Counsel for the respondents no. 1 and 2 submitted that the issue had received a quietus in view of the enactment of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 and that Sec. 451 determined the appellate forum. The question which was at large before this Court was whether the value of the assets as referred to in subsection 1 and value of assets at the time of the order provided for in sub-section 2 were synonymous or not. In his submissions, therefore the appeal lay before the District Court. Shri A.D. Bhobe, learned Counsel for the respondents no. 8, 11 and 12 adopted the arguments of Shri M.P. Almeida, learned Counsel for the respondents no.1 and 2 and rested his case on the aspect of maintainability of the appeal.