ANTONIO AGOSTINHO GOMINDES Vs. MILAGRES SANTANA GOMINDES

JUDGEMENT

(1.) By the above petition filed under Article 227 of the Constitution of India, the petitioners take exception to the order dated 25.3.2003 passed by the learned District Judge, Margao, by which order, the appeal filed by he petitioners being Misc. Civil Appeal No. 44/2003, came to be allowed and the judgment and order passed by the learned Civil Judge, Senior Division, Margao, dated 25.3.2003 in Inventory Proceedings No. 146/ 92/C came to be set aside.

(2.) Some of the facts which are necessary to be cited for the adjudication of the present petition are stated thus : The present Inventory Proceedings have their genesis in the Inventory Proceedings bearing No. 221/1940. The said Inventory Proceedings were commenced on the death of one Agostinho Gomindes, In the said Inventory Proceedings, an auction was held on 26.8.1940 in respect of two assets which were enlisted. Maria, the wife of said Agostinho Gomindes, took Item No. 1 and Item No. 2 which was enlisted in the said proceedings was auctioned in equal shares amongst the three children. Thereafter, the allotment was made absolute by order dated 27.9.1940. It appears that in 1942, the said Maria Gomindes got married in second nuptials with one Roque Miguel Gomindes and they had two children. The said Roque expired in the year 1958 and no Inventory Proceedings took place on his death. It appears that the said Maria died in the year 1992 upon which, an application was made by Lourdes Gomindes on 29.9.1992, inter alia stating that the charge of the Head of the Family should be given to his elder brother Milagres Gomindes. The said Milagres was appointed as the Cabeca de Casal by the Court. Subsequently, the said Milagres by a statement made on oath, submitted the list of heirs and undertook to produce a list of assets within thirty days. On 22.6.1994, the said Milagres Gomindes made an application under Article 1430 of the Portuguese Civil Code stating that the said application be placed on record and to direct that the prior Inventory i.e. 221 /1940 should proceed further incorporating the present Inventory in the prior Inventory and by serving notices to the interested parties mentioned in the statement of the Head of the Family recorded at present. On the said application, an endorsement was made on behalf of the petitioners herein that the prior Inventory in 221/1940 is already attached in this file and that the Head of the Family has to take steps to pursue the proceedings. The said Inventory Proceedings came to be numbered as 146/1992. Thus, as it can be seen from the said endorsement, the petitioners had accepted the position that the said Inventory Proceedings No. 221/1940 were required to be attached to the present Inventory Proceedings and further consented to the said Head of the Family to take steps to pursue the proceedings. The said Milagres, who was appointed as Cabeca de Casal, submitted the list of assets on 12.7.1995. However, grievance was made by the said Lourdes Gomindes on 11.3.1996 that Milagres had not submitted the list of assets properly and, therefore, he be directed to furnish the proper list of assets.

(3.) While the said Inventory Proceedings No. 146/92/C were pending, the said Milagres Gomindes filed a suit being Regular Civil Suit No. 262/96 in the Civil Court at Margao. The said suit was filed by the said Milagres and his wife for declaration and permanent injunction in respect of the suit properties. The declaration sought was in respect of the Gift Deeds, the Partition Deed and the sale-deed dated 17.3.1981 executed by Maria Gomindes. The sum and substance of the case of the said Milagres in the suit was that the disposal made by the said Maria was beyond what she could legally dispose of in terms of the law applicable in the State of Goa. The learned Civil Judge, Senior Division, on the basis of the pleadings, framed the following issues : ISSUES