JOSE ANTONIO PHILIP Vs. JOAO LUIS LAURENTE DOS

JUDGEMENT

(1.) THIS is an Appeal against Order dated 10th December, 1997, passed by Comarca Judge of Salcete and Quepem in Inventory Proceedings No. 30 of 1988. By the impugned Order, the Comarca Judge has dismissed the application filed by the Appellants in the said Inventory Proceedings for consideration of the deed of gift dated 28th February, 1985, to be null and void and not enforceable.

(2.) THE facts on brief relevant for the decision in the present Appeal are that the Appellant No. 1 and the Respondents Nos. 1, 3 and 5 are the heirs of one Jose Antonio Pascoal dos Milagres who expired on 3rd February, 1968. The Appellant No. 2 and the remaining Respondents are the respective spouses of the said Appellant No. 1 and the said Respondents respectively. Consequent to the death of the said Jose Miranda, the Inventory Proceedings No. 30 of 1988 were initiated in the Court of Civil Judge, Senior Division at Quepem. In the said proceedings, widow of late Jose Miranda was appointed as 'the Cabeca de Casal'. However, she also expired on 16th January. 1995, On her death, the first Respondent, namely Shri Joao Miranda was appointed as 'the Cabeca de Casal' in the said proceedings. In the course of statement by the Respondent No. 1 in his capacity as 'the Cabeca de Casal' recorded on 9th August, 1995, the Respondent No. 1 disclosed about a deed of gift in his favour by his mother and the widow of the said Jose Miranda in respect of half of her share in three of the properties left behind by the said Jose Miranda and his widow. The Appellants objected to the said deed of gift on the ground that the same was null and void being gift of the specific properties by a donor to whom the properties mentioned in the deed were not yet allotted in the Inventory Proceedings. The said objection was dismissed by the Trial Court by the impugned Order and hence the present Appeal.

(3.) SHRI M.P. Almeida, learned Advocate on the other hand submitted that the gift deed is in respect of a disposable quota of the donor Dominga Maria Ida Dias e Miranda, the mother of the Respondent No. 1 and it does not gift away any specific property thereunder. According to the learned Advocate, proper reading of the deed would show that the donor has specifically stated that what was being gifted therein was the entire disposable quota of the donor. The reference to three properties in Clause (e) of the deed only clarifies that such disposable quota would include the undivided half share of the ownership of the donor in the said properties along with other properties belonging to the donor and it cannot be interpreted to mean that the gift is only of those three properties in their entirety. Without prejudice to this submission, the learned Advocate submitted that in case the Court finds that Clause (e) of the said deed amounts to gift of three specific, properties, then Court can certainly hold that Clause (e) of the deed to be void but not the entire gift deed. The learned Advocate fairly considered that under the law in force in the State, a co -owner cannot gift any specific area from the property in co -ownership.