SECOND APPEAL NO.3 OF 2006,In the High Court of Bombay at Goa

IN THE HIGH COURT OF BOMBAY AT GOA

                        SECOND APPEAL NO.3 OF 2006

1.	Shri Norberto Paulo Sebastiao Fernandes, son of late Jose Piedade Fernandes, aged 40 years, businessman, and his wife
2.	Smt. Marlyne Fernandes, wife of Norberto Paulo Sebastiao Fernandes, aged 38 years, housewife, both r/o Opposite Talak Stores, Comba, Margao Goa
3.	Smt. Pulqueria Santana D'Souza Fernandes, widow of late Jose Piedade Fernandes, aged 72 years, landlady, housewife, r/o H.No.412, Vithaldas Vaddo, Mae de Deus Chapel, Morjim, Pernem Goa.	…	Appellants

V e r s u s

1. Shri Gabriel Sebastiao Idalino Fernandes, son of late Jose Piedade Fernandes,

aged 46 years, businessman, and his wife,

2. Smt. Mary Melba Fernandes, wife of Gabriel Sebastiao Idalino Fernandes,

aged 24 years, housewife, Both r/o Flat No.6, II floor, Meera Apartments, Sirvodem, Margao Goa.

3. Shri Tommy Vincente Fernandes, son of late Jose Piedade Fernandes, aged 50 years, businessman,

and his wife,

4. Smt. Maria Fernandes,

wife of Tommy Vincente Fernandes, aged 39 years, housewife,

Both r/o H.No.412, Vithaldas Vaddo,

Mae de Deus Chapel, Morjim, Pernem Goa.

5. Shri Nelson Caetano Fernandes,

son of late Jose Piedade Fernandes,

aged 40 years, businessman, and his wife,

6. Smt. Lourdina Luiza Fernandes, wife of Nelson Caetano Fernandes, aged 30 years, housewife,

Both r/o H.No.412, Vithaldas, Vaddo Mae de Deus Chappel, Morjim, Pernem Goa.

7. Smt. Maria Filomena Chistina Fernandes, widow of late Shri Milito Fernandes,

aged 47 years, housewife, r/o Varconem, Ponda Goa.

( Since deceased ) through her L.Rs. (I) Mr. Mevy Fernandes

(ii) Ms. Olvy Almeida

(iii) Mr. Claver Almeida

All residing at Shanti Nilayam House No. 588, Gorcomorod, Velim Goa.

8. Smt. Betty Sucorro Fernandes, wife of Arfano Collaco,

aged 38 years, housewife, and her husband,

9. Shri Arfano Colaco, aged 53 years, service,

Both r/o H.No.1139, Maddicatto, Cuncolim, Salcete Goa.

10. Shri Lawrence Antonio

Inacio Remedios Fernandes,

son of late Jose Piedade Fernandes, aged 52 years, service, and his wife,

11.Milagrina S. Fernandes,

wife of Lawrence Antonio Inacio

Remedios Fernandes,

aged 42 years, housewife, Both r/o H.No.56, Bimvaddo, Betalbatim, Salcete Goa.

12.Shri Assumsao Teodorio

Serafino Fernandes,

son of late Jose Piedade Fernandes, aged 51 years, businessman,

and his wife

13.Smt. Euridike Falcao,

wife of Assumsao Teodorio

Serafino Fernandes,

aged 44 years, housewife, Both r/o Vazvaddo, Opposite Bank of Baroda, Velim, Salcete Goa.

14. Shri Ciciliano Jose

Pascoal Baptisto Fernandes, son of late Jose Piedade Fernandes, aged 48 years, businessman, and his wife,

15. Smt. Linda Fernandes, wife of Ciciliano Jose

Pascoal Baptisto Fernandes, aged 36 years, housewife, Both r/o Luisavaddo, Majorda, Salcete Goa.

16. Shri Menino Santano Fernandes

(Expired on 5.7.2000) son of late Jose Piedade Fernandes, aged 45 years, bachelor, service,

r/o House No.412, Vithaldas Vaddo,

Mae de Deus Chappel, Morjim, Pernem Goa

17. Smt. Elsa Prescila Fernandes, d/o late Jose Piedade

Fernandes, wife of Francisco Soares, aged 40 years, housewife, and her husband

18.Shri Francisco Soares,

aged 40 years, service,
Both r/o John Marcelho's
residence, near Salgaonkar
Workshop, Cortalim,
Salcete Goa.	…	Respondents

Mr.  S.  D.  Lotlikar,  Senior  Advocate  with  Ms.  S.  Pai  Kir, Advocate for the appellants.

Mr. M. B. Da Costa, Senior Advocate with Ms. V. Gracious, Advocate for the respondent nos. 1 and 2.

CORAM : F. M. REIS, J

DATE: 9th DECEMBER, 2011.

ORAL JUDGMENT

The above Second Appeal was admitted on the following substantial questions of law :

1. Whether the provisions of Article 1565 of the Portuguese Civil Code are not repealed under Section 44 of the Transfer of Property Act ?

2. Whether the plaintiff’s suit was liable to be dismissed   for   the   plaintiffs   having   not prayed for the consequential relief of recovery of possession ?

2.              Briefly  the  facts  of  the  case  are  that  the

respondents filed the suit on the ground that the respondents and  the  appellants  amongst  the  other  properties  are  the lawful co-owners in enjoyment and possession of two properties known as “Vidulas” and “Mordi Vidulas” surveyed under Nos.171/6 and 171/4 of Village Morjim admeasuring area of 9611 and 1389 square metres respectively situated at Morjim of Pernem Taluka, District of North Goa, described in the Land Registration Office under No. 3165 of pages 163 of Book B-21 Old.    It was further their case that the said two properties are registered in the name of late Jose Piedade Fernandes and no inventory proceedings have been initiated upon his death and as such the shares of each of the co- owners nor any family partition has been effected in respect of the said properties nor individual shares determined in such properties.  It is further their case that the appellant no.3 is the widow of late Jose Piedade Fernandes and appellant no.1 is one of the sons who is concerned with the subject matter of the suit.  It is further their contention that the appellant no.1 in collusion with appellant no.3 with a malafide intention and to cause wrongful loss to the other co-owners entered into a sale deed dated 21.11.1995 purporting to have sold the suit properties in favour of appellant no.1 for a total consideration of Rs. 1,00,000/-.  It is further their contention that the said

 sale deed is null and void ab initio as the appellant no.3 was not the sole and absolute owner of the suit properties.  It is also their case that unless the shares of all the co-owners are ascertained by way of inventory proceedings, the said sale deed has no legal effect.  Consequently, the suit came to be filed for a declaration that the sale deed dated 21.11.1995 be declared as null and void and the relief of directing the cancellation of the said sale deed before the Sub Registrar.

3.              The  appellant  nos.  1  and  2  filed  their  written statement   disputing   the   claim   put   forward   by   the respondents.  They deny that the appellant no.3 was not the lawful owner of the suit properties.  With regard to the fact that the said property was registered in the name of late Jose Piedade Fernandes who is the husband of appellant no.3,  the appellant nos. 1 and 2 have merely denied the said contents of  para  2  in  the  said  written  statement  and  put  the respondents to strict proof thereof.  Remaining contentions in the plaint filed by the respondents were also denied by the appellant nos. 1 and 2 in their written statement.  The said appellants have also filed a counter claim praying inter-alia that  the  respondents  be  directed  to  pay  damages  of Rs.1000/-.

4.              The appellant no.3 also filed the written statement inter-alia stating  that two properties were sold by her to the appellant nos. 1 and 2 out of legal necessity as the appellant no.3 was in need of money.  It was further her case that the sale of said two properties are well within the disposal portion in her estate.  She also denied that the respondents are the lawful co-owner of the suit properties.   She further claimed that the suit property was inherited by her from her parents. She further claimed that as the sale deed executed by her was very much within the limits of the disposal portion as per the provisions of law, the question of inventory proceedings would not arise at all.    For the other reasons stated in the written statement, the appellant no.3 prayed that the suit be dismissed.

5.              The learned Judge after framing the issues and recording  of  evidence,  by  judgment  and  decree  dated

31.12.2002 dismissed the suit filed by the respondents. While disposing  of  the  suit,  the  learned  Judge  came  to  the conclusion that the impugned sale deed is not null and void. The learned Judge also dismissed the counter claim as not proved.  The learned Judge whilst assessing the material on record  came  to  the  conclusion  that the  respondents  have

failed to produce any evidence to establish that the suit properties were forming part of the Communion of the said couple.   The learned Judge further held that the appellant no.3 was entitled to execute the sale deed in favour of appellant nos. 1 and 2.

6.              Being aggrieved by the said judgment and decree, the respondents preferred an appeal before the learned Additional District Judge, Mapusa, being Regular Civil Appeal No.  16/2003  which  was  allowed  by  judgment  and  decree dated 15.10.2005 and the suit filed by the respondents came to be decreed.     It was declared that the sale deed dated

21.11.1995 registered before the Sub-Registrar at Pernem to be not binding on the respondents and consequently the Sub- Registrar was directed to cancel the registration of the said sale deed.

7.              Being  aggrieved  by  the  said  judgment,  the appellants preferred the present Second Appeal which came to be admitted on the aforesaid substantial questions of law.

8.              Shri   S.   D.   Lotlikar,   learned   Senior   Counsel appearing  for  the  appellants  has  assailed  the  impugned

judgment essentially on the ground that the learned Judge has decreed the suit filed by the original plaintiffs/respondent nos. 1 to 9 on the ground that the provisions of Article 1565 of Portuguese Civil Code were still in force.   The learned Senior Counsel further pointed out that after the Transfer of Property Act   was extended to the State of Goa as from

1.11.1965 the provisions of Article 1565 of the Portuguese Civil Code stand repealed.  The learned Senior Counsel further pointed out that the provisions of the Transfer of Property Act clearly defines the rights of the purchaser and the seller with regard to the transfer of immovable properties and as such taking into account the provisions of Article 1565 of the Portuguese Civil Code which restricts the power of such transfer, the same stand repealed after the coming into force of the Transfer of Property Act.  The learned Senior Counsel further pointed out that as the provisions of Article 1565 of the Portuguese Civil Code have been repealed, the appellant no.3 had a transfer right to convey the suit properties in favour of appellant nos. 1 and 2 within the meaning of the provisions of Section 6 of the Transfer of Property Act. The learned Senior Counsel has taken me through the provisions of Section 6 as well as   Section 7 of the Transfer of Property Act and pointed out that considering the said provisions of

law, the question of invoking Article 1565 of the Portuguese Civil Code to defeat the sale deed executed by appellant no.3 in favour of appellant nos. 1 and 2 does not arise at all.  The learned Senior Counsel further pointed out that in view of repeal of the provisions of Article 1565 of the Portuguese Civil Code, the question of holding that the sale deed executed by appellant no.3 in favour of appellant nos. 1 and 2 as null and void is erroneous. The learned Senior Counsel further pointed out that the evidence on record does not establish that the suit properties were forming part of the communion of assets of the properties of appellant no.3 and her husband.   The learned Senior Counsel further pointed out that it was incumbent upon the original plaintiffs/respondent nos. 1 to 9 to adduce cogent evidence on record to establish that the suit properties belong to the communion of the parents which they have failed to  establish by any evidence on record.   The learned Senior Counsel has taken me through the impugned judgment passed by the Lower Appellate Court and pointed out that the learned Judge has essentially decreed the suit filed by the respondents based on the provisions of Article

1565 of the Portuguese Civil Code which stand repealed and consequently the impugned judgment and decree deserves to be quashed and set aside.  In support of his submissions, the

learned Senior Counsel has relied upon the judgment of the Apex Court reported in 2001(4) SCC page 713 in the case of Syndicate Bank V/s Prabha D. Naik and anr.

9.              On the other hand, Shri M. B. Da Costa, learned Senior Counsel appearing for the respondents has supported the impugned judgment passed by the Lower Appellate Court. The  learned  Senior  Counsel  has  pointed  out  that  the provisions of Article 1565 of the Portuguese Civil Code by no stretch of imagination can be said to be repealed by the provisions of Transfer of Property Act as according to him such provisions of Article 1565 are in the context of succession which is guaranteed to be devolved upon the descendants under the law of succession as still in force in the State of Goa.  The learned Senior Counsel has taken me through the provisions of Article 1784 of the Portuguese Civil Code and pointed out that the object of the provisions of Article 1565 of the Portuguese Civil Code is essentially to ensure that the legitime which has to mandatorily devolve upon the descendants cannot be affected on the basis of such sale deed.   The learned Senior Counsel further pointed out that Articles 1784, 1786, 1774 of the Portuguese Civil Code   to disclose that the provisions of Article 1565 of the Portuguese

Civil   Code   are   essentially   the   provisions   dealing   with succession which cannot be repealed by the   provisions of Transfer of Property Act.  The learned Senior Counsel further pointed  out  that  considering  that the  provisions  of Article

1565 of the Portuguese Civil Code have not been repealed by the Transfer of Property Act, Section 6 of the Transfer of Property Act clearly provides that the appellant no. 3 had no transferable interest in the suit properties to convey in favour of appellant nos. 1 and 2.   The learned Senior Counsel in support of his submissions has relied upon the judgment of the learned Single Judge of this Court reported in 2002(1) GLT

109 in the case of Mr. Robert Felicio Coutinho V/s Mrs. Maria Angelica Botelho.

10.            Before I consider as to whether the provisions of Article 1565 of Portuguese Civil Code stand repealed in view of the extension of the Transfer of Property Act to the State of Goa, it would be appropriate to ascertain as to whether the appellant no.3 who was the widow of Jose Piedade Fernandes was entitled to dispose of the suit properties under Article

1565 of the Portuguese Civil Code.   In the present case as already stated herein above at para 2 of the plaint, there was a specific averment to the effect that the suit property was

registered in the name of said Jose Piedade Fernandes who was the husband of appellant no.3.  Whilst dealing with the said allegation in the written statement, though there was a denial to that effect, there was nothing pleaded either by appellant no.3 or appellant nos. 1 and 2 disputing the said fact in the pleadings.  It is well settled that bare denial is no denial in law.  In the present case, even the appellant no.3 while dealing with the contentions in paras 1 and 2 of the plaint has clearly stated that the impugned sale deed was within the disposal of her share.   There was no dispute raised by the appellant no.3 to the effect that the suit properties were  not  within  the  communion  of  assets  of  the  couple. Article 1108 of the Portuguese Civil Code clearly provides that the marriage as per the custom of the country consists in the communion  between  the  spouses  of  all  their  properties present and future, not excluded by law.  Considering that the property was registered in the name of the husband of appellant no.3 which has not been disputed by the appellants, it can be safely assumed that the suit properties were part of the communion of assets which belongs to appellant no.3 and her deceased husband.  Article 1766 of the Portuguese Civil Code further provides that those married as per the custom of the  country  were  not  under  penalty  of  nullity  entitled  to

dispose of certain and specific properties of the couple, except if the said properties have been allotted to them in partition or are not included in the communion or if the disposition has been made by one of the spouses in favour of the other or if the other spouse has given consent by authentic form.  In the present case, considering that it is not in dispute that upon the death of the husband of appellant no.3, no inventory proceedings were initiated to partition his estate nor any partition in fact has been carried out whereby the suit properties were allotted to the appellant no.3, the question of the appellant no.3 disposing the said properties in favour of appellant nos. 1 and 2 has no legal effect.  It is also to be noted that the appellant no.3 had lineal descendents and such exercise on her part would affect the legitime of such descendants. In fact reading of provisions of Article 1766 of the Portuguese Civil Code, if such transfers are made and the above circumstances exist,  the transaction is null and void. As such, on this ground alone the impugned sale deed is null and void and has no legal effect.

11.            With  regard  to  the  contention  of  Shri  Lotlikar, learned Senior Counsel appearing for the appellants to the effect that the provisions of Article 1565 of the Portuguese

Civil Code stand repealed after the extension of the provisions of Transfer of Property Act  which are the provisions by special nature and have no connection with the succession law, I find that the provisions of Article 1565 of Portuguese Civil Code are enacted to protect and ensure that the legitime does not get affected and as such deal with succession. Article 1784 of the Portuguese Civil Code provided that the legitime means the portion of the properties that a person cannot dispose of because  it  has  been  set  apart  by  law  for  the  lineal descendants  or  ascendants.  It  further  provides  that  the portion consists of half of the properties of the testator, save as provided in clause 2 of the Article 1786 and 1787.  Article

1565 of the Portuguese Civil Code reads as under : “The  parents or grand parents cannot sell nor mortgage to children or grand children, if the other children or grand children did not consent in the sale or mortgage.

Sole para – If any of them refuse his consent, or is incapable of giving it, or such consent is unable to be obtained, this shall be obtained by the family council, arranged in terms of Article 207, which shall be called for this purpose”.

There is no dispute that under the said Article

1565  of  the  Portuguese  Civil  Code,  the  parents  are  not entitled to convey and/or sell their property in favour of their children/grand children without the consent of other children/grand  children.     In  the  present  case,  the  suit property is sought to be sold by appellant no.3 in favour of her son who is appellant no.1 herein without the consent of the other children who are the respondents herein. In fact such consent is envisaged in order that the other children are aware about any such transfer which would otherwise affect their legitime.

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.

  

 15.            The learned Single Judge in the Judgment in case of Mr. Robert Felicio Coutinho ( supra ) relied upon by the learned Senior Counsel appearing for the respondents has held that the Transfer of Property Act is a general statute and the Portuguese Civil Code is a special statute.  The provisions of the special statute, which is applicable in the State of Goa would prevail over the provisions of the general statute.  The learned Single Judge has further held at para 8 thus :

“8. Article 2177 of the Portuguese Civil Code, deals with the substantive rights of the co-owners and prescribes the mode or puts an embargo on unfetted rights to alienate the property held jointly  by  others.    A  procedural  law can be deemed to have been repealed if it is in conflict with the general procedural law.   Since, this law deals with the substantive rights of the parties, the provisions of the Transfer of Property Act cannot be said to have impliedly repealed the provisions of the Portuguese Civil Code.  The Transfer of Property Act is a general statute and the Portuguese Civil Code is a special statute.   The provisions of the special

statute, which is applicable to the State of   Goa   would   prevail   over   the provisions of the general statute.  The learned Single Judge of this Court in the   matter   of   Jose   Antonio   Philip Pascoal da Piedade Cirilo dos Milagres Miranda and another V/s. Joao Luis Laurente dos Milagres Miranda and others ( supra ) has after careful consideration of Article 2177 of the Portuguese Civil Code come to the conclusion that Article 2177 of the Portuguese Civil Code   prohibits the alienation of a property in the form of a gift of any person unless the said property exclusively belongs to the donor.  The learned Single Judge of this Court has further held that Article 2177 of the Portuguese Civil Code does not entitle  the  co-owner  to  dispose  of either   the   entire   property   or   any specific portion of any property unless and until the share of such co-owner is allotted, partitioned and separated in loco”.

16.            What emerges from the judgments of this Court as well as the commentaries by Dr. Cunha Gonsalves as referred to above is that  the provisions of Article 1565 of the

Portuguese Civil Code is to protect the legitime (legitimate share) which has to devolve upon the descendants.   Law declare such sale transaction as null and void as the nullity has only the aim of impeding the efficaciousness   of such transaction.  In the present case, law recognizes that in cases in which the parents transferred the property in favour of children, such transactions are null and void unless they are executed with the consent of other children. In the present case, undisputedly no such consent was obtained and consequently the Lower Appellate Court was justified to come to the conclusion that the sale deed executed by the appellant no.3 is null and void and has no legal effect.  The substantial questions   of   law   famed   by   this   Court   are   answered accordingly.

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.

18.            In view of the above, I find no substance in the above appeal which stands accordingly dismissed.

 

 

F. M. REIS, J