SECOND APPEAL NO.24 OF 2012,In the High Court Of Bombay at Goa

IN THE HIGH COURT OF BOMBAY AT GOA

SECOND APPEAL NO. 24 OF 2012

1. Smt. Premavati Basu Naik, major in age, widow of Basu Dipu Naik, housewife,

2. Smt. Tara Prakash Naik, major in age, widow of Prakash Naik.

3. Shri Kalidas Prakash Naik, major of age, student,

son of late Prakash Naik,

All residents of House No.138, Rua de Maria, Sancoale, Mormugao Taluka, Goa.

4. Smt. Rohini Ladu Naik,

major in age, married, housewife, and her husband.

5. Smt. Ladu Datta Naik, major in age, service,

both residing at House No.

36/B, Issorim, Velsao, Mormugao Taluka, Goa.

6. Smt. Vijaya Gajanan Naik, major in age, married, housewife and her husband.

7. Shri Gajanan Laxman Naik, major in age, both residing at House No.141, Akshibhat,

Agassaim, Ilhas Goa.                    …      Appellants

V e r s u s

1. Shri Suresh Basu Naik,

son of late Basu Dipu Naik, major in age, married, businessman and his wife

2. Smt. Mary Rosa Goes alias

Maya Suresh Naik, major in age,
housewife,
both residents of House No.128,
Pithole, Sancoale,
Mormugao, Taluka Goa.	…	Respondents

Shri V. A. Lawande, Advocate for the appellants.

CORAM : F. M. REIS, J

DATE: 21st JUNE, 2012.

ORAL JUDGMENT :

The above appeal challenges the judgment and decree dated 10.03.2011 passed by the learned District & Sessions Judge, South Goa, Margao, in Regular Civil Appeal No. 389/2010 whereby an appeal preferred by the respondents was allowed and deed of sale dated 21.12.1993 registered before the Sub-Registrar of Mormugao came to be declared as null, void and ineffective and without any legal effect.

2.              The   brief   facts   of   the   case   are   that   the respondents filed a suit on the ground that there exists a property known as “Piturlem” situated at Sancoale, which is described in the Land Registration Office of Salcete under No.3595,  old  series,  and  admeasuring  an  area  of  1318

square metres and surveyed in the records of right under No.

276/2 of Village Sancoale.  It is further their case that the suit property was purchased by the respondents' father on

24.12.1968.  It is further the case of the respondents that the appellant nos.2, 4 and 6 misguided the appellant no.1 and her husband and without the knowledge  and consent of the respondents induced the parents of the respondent no.1 to execute a deed of sale dated 21.12.1993 in favour of the appellant  nos.2, 4 and 6 in respect of the suit property.  It is further their case that the sale deed came to be registered before the Sub-Registrar of Mormugao and that in August,

1998, the appellant no.2 filed a complaint against the respondent  no.1  at  Verna  Police  Station  wherein  she disclosed that the suit property was purchased by them. Accordingly, the suit came to be filed.   According to the respondents, the sale deed was in breach of Article 1565 of the Portuguese Civil Code.

3.              The appellants resisted the said suit and disputed the contentions of the respondents for the reasons stated in the written statement.  It was submitted by the appellants that the suit deserves to be dismissed. After framing the issues and recording of the evidence, the learned Civil Judge

Senior Division, Vasco, dismissed the suit filed by the respondents.   Being aggrieved by the said judgment and decree dated 30.07.2002 passed in Special Civil Suit No.

42/99, the respondents preferred an appeal before the learned District Judge, South Goa, Margao.   By judgment and decree dated 10.03.2011, the learned Additional District Judge, South Goa, Margao, allowed the appeal preferred by the respondents and consequently the judgment passed by the  learned  Trial  Judge  came  to  be  set  aside.    Being aggrieved by the said judgment, the appellants have preferred the present appeal.

4.              Shri V. A. Lawande, learned Counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that the provisions of Article 1565 of the Portuguese Civil Code has been repealed in view of the Transfer of Property Act.  The learned Counsel further points out that though Article 1565 of the Portuguese Civil Code does not permit the parents to sell the property to their children without the consent of other children nevertheless in the present case according to the appellants, there was deemed  consent  from  the  other  children.    The  learned counsel further points out that most of the children were

already made parties to the sale deed except the son, the respondent no.1.  The learned counsel further points out that considering  that  the  appellant  no.1  and  her  deceased husband  had four children,  three daughters  were beneficiaries of the said sale deed and as such according to the learned counsel, the question of seeking any consent from the respondent no.1 would not arise.   The learned counsel further points out that no suit for declaration simpliciter was maintainable without seeking for restoration of possession. The learned Counsel further submits that the appellants are in possession of the suit property and as such, the learned Judge was not justified to pass the impugned judgment inasmuch as no possession has been sought from the appellants.   The learned Counsel   further submits that the above appeal deserves to be admitted on the  substantial questions of law framed in the memo of appeal.

5.              I have duly considered the submissions of the learned Counsel appearing for the appellants.   I have also perused the records and proceedings.   It is not in dispute that under Article 1565 of the Portuguese Civil Code, there is an express bar whereby the parents cannot sell the immovable property to the children without consent of all the

children.  In the present case, it is not in dispute that the respondent no.1 is the son of the appellant no.1 and as such, the consent of the respondent no.1 has not been obtained. There is no material produced on record to show that there was any consent from the respondent no.1.  The contention of the learned counsel appearing for the appellants to the effect that the provisions of the Transfer of Property Act had repealed the provisions of Article 1565 of the Portuguese Civil Code is no longer available to the appellants in view of the judgment passed by this Court dated 09.12.2011 in Second Appeal No. 3 of 2006.   While considering the said aspect, this Court relying upon the provisions of the law as well as the commentaries of Dr. Cunha Gonsalves has held at paras 12, 13 and 14 thus :

“12. The aforesaid view taken by me that the provisions of Article 1565 of the Portuguese Civil Code are special provisions dealing with succession came to be accepted by the then Judicial Commissioner's Court in Civil  Revision  Application  No.208/80, wherein by the judgment dated 02.06.1982, the then Judicial Commissioner ( Dr. Couto, J, as he then was ) has held at para 7 thus :

“7.  Coming now to the merits of the

Revision, I may say at the outset that

the learned Judge did not commit any illegality, nor he exercised his jurisdiction with material irregularity. Undoubtedly, the Transfer of Property Act repealed the Chapter of the Civil Code dealing with the contract of “purchase and sale”, but, as correctly observed by the learned Judge, Art.

1565 is a provision by nature special and intimately connected with the succession law.  In fact, the provision of Art. 1565 is aimed to protect  the shares in the estate of their parents guaranteed by law to the children.  It specifically prohibits the sale or hypothecation of properties by the parents to any of their issues without prior consent of the other issues and therefore, is meant to defend the issues against collusions between the parents and any of them in prejudice of the others.    The Portuguese succession law is still in force in this Territory and as such, the provision of Art. 1565, being intimately connected to the said law, has to be construed as continuing in force.   I, therefore, am unable  to  accept  the contentions  of the petitioners to the contrary.”

13.   Dr. Cunha Gonsalves, Tratade de Direito Civil, Vol. VIII, page 506-507 as translated into English states  thus :

“ On the contrary, the purchases and sales  made  with  infraction  of  Art.

1565, which the Ord. Felip. said were none   or   of   no   effect,   are   only relatively  null  or  simply  annullable. And it is not little; because this nullity has only the aim of impeding the efficious gifts; and it would be enough that the legislator submitted himself to the regime of these gifts, instead of radically annulling them. This nullity can only be applied for by any of the sons, whose consent would be needed for the validity of the contract.  It is a case of protecting a merely private interest, exactly as in the case of reduction of inofficious gifts.  Can the judge reduce a gift of such type, on his own, without any interested party applying for it, proving the inofficiousness ? Certainly not.

However,  it  is  to  be  noted  that, without prejudice to Art. 1565 being a protection      of      the      'legitima' ( legitimate shares) of the descendants, there is no need to wait

for the death of the father or grand father vender to apply for the annulment of the sale, because it is not  necessary  to  prove,  concretely, the  effects  of  the  same  'legitimas', the suspicion is enough, the legal presumption of juris et de jure, that the same Art. 1565 established, declaring the contract anuullable.

Finally, the case of Art. 1565, without prejudice to the reference to the preceding articles, is not comprised in the sanction of art. 1567, as it can be inferred from the reference to interposed person.   The sales or purchases by interposed person have the aim of illuding the prohibition of direct contracts.   But, this can only have some efficacy, till the interposition is not discovered and proved, in the cases of arts. 1562,

1564 and 1565 and it would be absolutely useless in the remaining cases.      For   the   interposition   of person it would not be necessary that the law should prohibit to some one else the purchase of an undivided share,  which  prohibition  does  not exist  in  law.  But,  the  sale  of  the

undivided right, made to the interposed person, shall be covered by the preference, when the interposition is not discovered.”

14.   Thus, it is to be noted that Article

1565 of the Portuguese Civil Code, is a protection of the legitimate share of the descendants and there is no need to wait for the death of the father or grand father vendor to apply for the annulment of the sale, because it is not necessary to prove, concretely, the effects on the legitime.  In view of the above as  the legitime would be affected, such transactions are null and void in view of the provisions of Article

1565 of the Portuguese Civil Code when executed without the consent of the other children.”

Hence, the contention of the learned counsel appearing for the appellants to that effect cannot be sustained.

6.              Dealing with the second contention of the learned Counsel appearing for the appellants to the effect that no restoration of possession has been obtained, I find that the question   of   respondents   seeking   any   restoration   of

possession in the peculiar circumstances of the case would not arise.   The law is well settled under Article 2015 that upon death of the parents, the property devolves upon all the descendents and transmission of the ownership and possession in favour of the descendents jointly.   In the present case, upon death of the husband of the appellant no.1, the appellants as well as the respondents are deemed to be in joint ownership and possession of the suit property. Apart from that the respondents are in possession of one compartment in the suit house as admitted by the appellants themselves.  The appellants in fact sought for the possession of the said portion of the suit house by filing a counter claim which has been dismissed.   Hence, the question of the respondent no.1 seeking any possession from the appellants does not arise as they are deemed to be in joint possession thereof.   Such possession in any event would have to be decided only in the inventory proceedings or partition of the property if at all any of the parties initiate in accordance with law.  Hence, the contention of the learned Counsel appearing for the appellants that such declaration itself is not sufficient cannot be accepted.  This aspect was also dealt with by this Court in the said judgment at para 17 thereof and held thus :

“17.          Dealing with the contention of Shri Lotlikar, learned Senior Counsel appearing for the appellants to the effect that the respondents have only sought for a  declaration  and  not for consequential relief, I find that considering the consequences of such declaration that the suit properties would belong to the estate of the deceased parents and consequently such inheritance would devolve upon the appellant nos. 1 and 2 and remaining respondents  is  the  question  of  seeking any restoration of possession would not arise at all.   Once the sale deed has been declared as null and void, the suit properties would have to be partitioned in accordance with law in appropriate proceedings.    In such proceedings depending upon the allotment made therein the possession thereof would have to be delivered in accordance with law.”

The contention of the learned counsel appearing for  the  appellants  to  the  effect  that  there  was  implied consent of the respondents cannot be accepted as there was no foundation to that effect in the pleadings of the appellants in their written statement.  The judgment of the Apex Court relied upon by the learned Counsel appearing for the appellants reported in AIR 1993 SC 957 in the case of

Vinay Krishna V/s Keshav Chandra and another and AIR  1972  SC  2685  in  the  case  of  Ram  Saran  and another V/s Smt. Ganga Devi are not applicable to the facts  of  the  present  case.  The  plaintiffs  therein  though claimed  to  be  entitled  for  exclusive  possession  of  the property were held not to be in possession thereof. In the present case, the respondents are seeking a relief on basis that they are co-heirs along with the respondents entitled to joint ownership of the suit property and as such the question of   restoration   of   possession   would   not   arise   at   all. Considering the said judgment of this Court and in view of the findings rendered herein above, I find that there are no substantial questions of law arise in the present appeal for consideration.  As such, the appeal stands dismissed.

 F. M. REIS, J