Supreme Court - Daily Orders
Nirmala Vassant Dessai vs Tulsi Sadananda Dessai on 22 April, 2014
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.4803 OF 2014
(Arising out of SLP(C)No.30234 of 2009)
NIRMALA VASSANT DESSAI AND ORS. .......APPELLANTS
VERSUS
TULSI SADANANDA DESSAI .......RESPONDENT
O R D E R
Leave granted.
This appeal has been preferred by the appellants-
objectors against the order dated 6th August, 2009 passed by the
High Court of Bombay at Goa in AFO No.98/2008. By the impugned
order, the High Court rejected the objection raised by the
appellants-objectors and affirmed the order dated 18th June, 2008
passed by the learned 1st Additional Civil Judge, Senior Division,
Margao in the Inventory Proceedings No.131/1998/1.
The Inventory Proceedings aforesaid commenced on 4th
November, 1998 upon the death of the estate leavers Smt.Yeshoda
Ganba Dessai, who died on 4th August, 1975, and Shri Ganba Bhagdu
Dessai, who died on 18th September, 1991. In the said case an order
was passed by the Court appointing Vassant Dessai as Cabeca de
Casal (hereinafter referred to as the Administrator). On 30th March,
1999, respondent-Tulsi was appointed as Administrator and she was
administered oath and filed an additional statement on oath. In the
said Inventory Proceedings the appellants filed an application on
24th September, 2002 to declare the Will dated 19th September, 1991
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of the deceased estate leaver (testator) Ganba Dessai as invalid on
the ground that late Ganba was not the sole and exclusive owner of
the properties and, therefore, he could not bequeath specific
portion of the properties to any person and the bequest deposition
was hit by Article 2177 of the Civil Code. The respondent filed her
objections on 23rd March, 2007 that what is bequeathed is out of
Ganba Dessai’s disposable quota. She further took plea that the
issue raised by the appellants can be decided at the time of
Informative Chart of Partition. Upon hearing the parties, learned
Inventory Judge was pleased to dismiss all their applications by
order dated 18th June, 2008 holding that the Inventory Court lacks
jurisdiction in entertaining and deciding the issue of validity of
the Will. The Inventory Court held that there is no breach of
Article 2177 of the Civil Code.
Felt aggrieved, the appellant preferred an appeal bearing
No.98/2008 to get the order of the Inventory Court quashed and set
aside only to the extent of the rejection of application for
declaring the Will null and void.
Learned Single Judge after notice to the respondent by
the impugned judgment affirming the order of the Inventory Court,
dismissed the appeal.
Learned counsel appearing on behalf of the appellants
contended that the substantive law of succession is governed by the
provisions of the Portuguese Family Law still in force in Goa,
since family laws applicable to the rest of India have not been
extended to Goa. The same also pertains to the law of Inventory
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Proceedings governed by Portuguese Civil Procedure Code, not
repealed by Indian Civil Procedure Code extended to Goa, Daman &
Diu with effect from 15th June, 1966. As per the law of succession,
whenever the estate leaver (testator) has descendants, like in the
present case, 50% is mandatory reserved by law to the descendants
or non-disposable portion, (legitime), and balance 50% can be
freely disposable portion by the estate leaver inter vivos (gifts)
or mortis causa (will) by the estate leaver (testator). And in the
event, the disposition exceeds the disposable share, to the extent
the disposition is in excess shall be reduced and the legatee or
the done is to restore back the excess.
According to the learned counsel for the appellants the
main issue required to be determined was whether the testator (or
donor) can dispose specific part of or specific area of the
property, which property does not exclusively belong to the
testator but belongs jointly to the testator and other heirs or
legal representatives. And if so, whether disposition will be null
and void. A matter is to be determined in terms of Article 2177 of
the Civil Code. It is contended that the aforesaid question cannot
be decided at the time of Informative Chart of Partition and the
application, in any case, cannot be decided after the auction, but
has to be decided before the auction. The reason being that if the
some heir has offered higher bid in excess of his/her share, he/she
is required to deposit the owelty money, failing which the
licitation stand cancelled.
The respondent has appeared and taken similar plea as
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held by the 1st Additional Civil Judge, Senior Division, Margao in
the Inventory Proceedings No.131/1998/1.
From the impugned order what we find that though the
appellants raised all the questions but the High Court without
discussion of the facts and the grounds taken by the appellants
dismissed the AFO No.98/2008 with mere observation that the
appellants are seen to have taken a totally different stand namely
sought a declaration that Will subject matter is "invalid" in the
prayer contained in said the application. None of the issue raised
by the appellants or the respondents was discussed and decided.
For the reasons aforesaid, we set aside the impugned
order dated 6th August, 2009 passed by the High Court of Bombay at
Goa in AFO No.98/2008 and remit the matter to the High Court for
deciding the same on merits after giving notice to the parties.
The appeal is allowed in the manner indicated above.
...............................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
..............................J.
(DIPAK MISRA)
NEW DELHI;
APRIL 22, 2014.
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ITEM NO.8 COURT NO.12 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).30234/2009
(From the judgement and order dated 06/08/2009 in AFO No.98/2008
of The HIGH COURT OF BOMBAY AT PANAJI)
NIRMALA VASSANT DESSAI AND ORS. Petitioner(s)
VERSUS
TULSI SADANANDA DESSAI Respondent(s)
(With prayer for interim relief and office report)
(For final disposal)
Date: 22/04/2014 This Petition was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA
HON’BLE MR. JUSTICE DIPAK MISRA
For Petitioner(s) Mr.Dhruv Mehta, Sr.Adv.
Mr.Yashraj Singh Deora, Adv.
For M/S Mitter & Mitter Co., Adv.
For Respondent(s) Mr.Arun R.Pedneker, Adv.
Mr. V.N. Raghupathy, Adv.
UPON hearing counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed order.
(Satish K.Yadav) (Usha Sharma) Court Master Court Master ( Signed order is placed on the file )