MANUEL COLACO Vs. ANTONIO COLACO

JUDGEMENT

(1.) This appeal is directed against an Order passed on 23-2-2000 by the learned Civil Judge, Senior Division, Panaji below Exhibit 9 in Inventory Proceedings No. 90/1978/A, whereby she refused to draw up map of partition and instead decided to proceed further with auction of shares.

(2.) Facts relevant for deciding this appeal are as under :-Appellant is Cabeca de Casal (head of the family) in the inventory proceedings taken out upon the death of a person in whose property, a plot of land admeasuring 820 square metres, the parties claim a share. Article 1390 of Portuguese Civil Procedure Code 1939, (hereinafter referred to as Procedure Code) provides for making a final description (valuation as well) of properties and debts. This exercise was completed on 14-4-1999, and the matter was posted for objections, if any, on 20-4-1999. No objections were filed, but then the matter is alleged to have been wrongly posted for auction. Service on unserved heirs was completed by 30-6-1999 and the proceeding was adjourned to 15-7-1999 for submitting a map of partition (mode of partitioning the property). The matter was adjourned thrice thereafter. On 5-10-1999, the respondent for the first time demanded auction. In spite of objections by the appellant, head of the family, that such a prayer was beyond limitation, the learned Judge by the impugned order, allowed respondent's prayer calling for auctions. Hence this appeal.

(3.) I have heard learned Senior Counsel Mr. M. S. Usgaonkar for the Appellant and Mr. M.B. D' Costa, learned Senior Counsel for the respondents. Both the learned Counsel painstakingly enumerated the nature and scope of inventory proceedings, as well as the chronology in which various steps in the proceedings are to be taken, elaborating the procedure for taking such steps. Inventory proceedings are summary proceedings to determine and distribute assets left by a deceased. Initially, the rights of the parties in this behalf, as also procedure for determining these rights, was contained in the Portuguese Civil Code (hereinafter referred to as the Civil Code). Sub Division V thereof, titled as "of the Licitations and Partition contains provisions relevant for the present purpose. "Licitation" is a limited auction between the heirs so as to avoid subdivision of properties in small pieces. After settling description of properties (i.e. stating valuation) the parties meet in a conference wherein, such amongst them as are willing to offer a higher price for property/ies would make a declaration to this effect. This Code, as also the 1939 Code, are in Portuguese and relevant parts thereof have been translated in English, in books by the learned Counsel for the appellant. Article 2126 of the Civil Code, which has been referred to by the learned Civil Judge in her impugned order reads as under :