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Mr. Joao Cardoso Son of Late Silvestre Cardoso (Deceased) Represented by His Legal Representatives Smt. Ritinha Cardoso(Wife) and ors. Vs. Mrs. Ethelvina Cardoso Rodrigues Daughter of Late Silvestre Cardoso and Her Husband. Mr. Lino Rodrigues (Expired) (Since Deceased Through His Legal Heirs Mr. Bosco Rodrigues and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 76 of 2008
Judge
Reported in2009(5)BomCR51
ActsVillage Panchayat Buildings Rules, 1971 - Rule 12; Code of Civil Procedure (CPC) - Order 1, Rule 13; Civil Code, 1867 - Schedule - Articles 1784 and 2042
AppellantMr. Joao Cardoso Son of Late Silvestre Cardoso (Deceased) Represented by His Legal Representatives S
RespondentMrs. Ethelvina Cardoso Rodrigues Daughter of Late Silvestre Cardoso and Her Husband. Mr. Lino Rodrig
Appellant AdvocateV.R. Tamba and ;D. Zaveri, Advs.
Respondent AdvocateSudin Usgaonkar, Adv.
DispositionAppeal dismissed
Excerpt:
.....procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44..........1 was entitled to 4/6th share in the said property, and the suit was filed for partition of the suit property as per the said shares and separate allotment.5. the said silvestre cardoso had six children, the plaintiffs being two of them and the defendant no. 1 being the third. the other children are lourenco assumpcao cardoso, maria linda cardoso and smt. albertina cardoso. according to the defendants they were the co-owners of the said property admeasuring 246 sq. meters and they were entitled to 4/6th of the undivided right and both the plaintiffs together were entitled to 2/6th of undivided right. according to the defendants in case the said property was divided as per the said shares, each sub-divided plot would come to 41 sq. meters and such a small plot was neither feasible for.....
Judgment:

N.A. Britto, J.

1. This is plaintiffs' Second Appeal and is arising from R.C.S.

2. The parties hereto shall be referred to in the names as they appear in the cause title of the said Civil Suit.

3. The dispute between the plaintiffs and the defendants is regarding division of a property which their father Silvestre Cardoso had purchased by deed dated 1-3-1974, after the death of their mother. The property was originally admeasuring 666 sq. meters but what is presently available for division is 246 sq. meters; 222 sq. meters having been sold to defendant No. 1 by the said Silvestre Cardoso by deed dated 8-5-1974, 185 sq. meters having been acquired by the Government in the year 1995 and 13 sq. meters having been left out by defendant No. 1 for private access. After the purchase of 222 sq. meters by deed dated 8-5-1974 defendant No. 1 has constructed his house.

4. The case of the plaintiffs was that each of them were entitled to 1/6th share and defendant No. 1 was entitled to 4/6th share in the said property, and the suit was filed for partition of the suit property as per the said shares and separate allotment.

5. The said Silvestre Cardoso had six children, the plaintiffs being two of them and the defendant No. 1 being the third. The other children are Lourenco Assumpcao Cardoso, Maria Linda Cardoso and Smt. Albertina Cardoso. According to the defendants they were the co-owners of the said property admeasuring 246 sq. meters and they were entitled to 4/6th of the undivided right and both the plaintiffs together were entitled to 2/6th of undivided right. According to the defendants in case the said property was divided as per the said shares, each sub-divided plot would come to 41 sq. meters and such a small plot was neither feasible for agricultural or structural activity and was otherwise opposed to Rule 12 of the Village Panchayat Buildings Rules, 1971 which provides that a sub-divided plot ought to be at least of 100 sq. meters.

6. The defendant No. 1 being one daughter amongst the six children of the said Silvestre Cardoso claimed 4/6th of undivided right of the suit property by virtue of two sale deeds made in her favour on 29-12-1997 and 4-2-1998 by her sisters the said Maria Linda Cardoso and Albertina Cardoso along with their respective spouses. The said Maria Linda Cardoso and Albertina Cardoso were given at the time of their marriage by their parents a sum of Rs. 3000/-as gift on account of their future paternal and maternal legitime making them liable to compensate the excess which they might have received towards their disposable share. The deed of anti-nuptial contract in favour of Maria Linda Cardoso was executed on 11-10-1950 when their mother was living but the deed in favour of Albertina Cardoso was executed on 23-12-1959 after the death of their mother. The property in dispute was purchased by their father on 1-3-1974.

7. The plaintiffs did not challenge the said sale deeds dated 29-12-1997 and 4-2-1998, but an additional issue was framed which reads as follows:

Whether the plaintiffs proved that the deeds dated 29-12-1997 and 4-2-1998 are null and void in view of deeds of relinquishment dated 11-10-1950 and 23-12-1959.

8. The learned trial Court whilst giving a finding on Issue No. 1 has come to the conclusion that the suit was not maintainable in the absence of inventory proceedings being filed in the light of the Judgment of this Court in the case of Cruz Fernandes v. Gregorina Fernandes 1991(2) G.L.T. 42 and, as far as that aspect of the case is concerned there is no dispute amongst the parties, that the parties will have to go for inventory proceedings to partition their respective shares. Nevertheless, the question which will always remain open as to what would be the share of the plaintiffs and the defendants since the defendants claim to have acquired 1/3rd share from her two sisters, namely the said Maria Linda Cardoso and Albertina Cardoso and claim 4/6th share in all.

9. On the above said issue, the learned trial Court came to the conclusion that the sale deeds dated 29-12-1997 and 4-2-1998 are illegal and proceeded to declare them so. The learned trial Court took note of the fact that the sellers, namely Maria Linda and Albertina along with their spouses were not made parties to the suit and had not sought any relief of declaration against the defendants but since no issue of non joinder was raised by the defendants and relying on the provisions of Order 1, Rule 13, C.P.C. proceeded to hold that the said two sale deeds were null and void in view of the deed of relinquishment by the said two sisters dated 11-10-1950 and 23-12-1959, and, therefore proceeded to decree the suit partly. However, the learned first appellate Court by its Judgment dated 20-2-2008 set aside the Judgment of the trial Court, but, at the same time directed that both parties should maintain status quo till the rights of the parties were determined by competent authority. The learned first appellate Court referred to Article 2042 of the Civil Code of 1867 and held that the deeds of relinquishment executed by them in the years 1950 and 1959 did not in any manner come in the way of Maria Linda and Albertina to execute the sale deeds transferring their undivided rights in the suit property to the appellants. The submission of the plaintiffs that because of the said deeds of anti-nuptial contracts dated 11-10-1950 and 23-12-1959 the said two sisters could not have any right or share in the father's property, later acquired, was rejected holding that no rights could have crystallized in favour of the said Maria Linda Cardoso and Albertina Cardoso in the years 1950 and 1959, and the said relinquishment was not valid in the eyes of law. It was further held that the said two sisters could not have relinquished their rights unless they had acquired the same under Article 2042 of the said Civil Code and they could not have acquired any right during the life time of their parents nor could they have relinquished any such right.

10. As regards non joinder of the said Maria Linda Cardoso and Albertina Cardoso, the learned first appellate Court came to the conclusion that the said sale deeds executed by them could not have been declared as null and void by the learned trial Court since the vendors were not made parties to the suit. It was observed that when the plaintiffs had asked for declaration that the aforesaid sale deeds were null and void it was incumbent on the part of the plaintiffs to make the vendors of the sale deeds, who were necessary parties, as parties to the suit, irrespective of the fact that the plea of non joinder was taken or not by the defendants and the vendors of the said sale deeds being necessary parties to the suit, the aforesaid sale deeds could not have been declared as null and void.

11. Be that as it may, Article 2042 of the Civil Code of 1867 which is in force in this State and by which the parties are governed when translated reads as follows:

No one can, not even through a prenuptial agreement, renounce the succession of a living person, or dispose of or charge the rights that he/she may have over the inheritance.

12. Did any one or the said two sisters renounce the succession of their parents or father or charge the rights that they might have had over the inheritance of their parents/father in any manner

13. The learned trial Court in one breath concluded that Article 2042 did not have bearing in the present case as no renunciation of right had taken place by virtue of the Deed of Acquittance and anti-nuptial contracts(see internal page 16) and he might have been right in case the learned trial Court had stopped at that, but in another breath held that Maria Linda Cardoso and Albertina Cardoso did not have any share, right or title to sell the suit property to defendant No. 1, and, therefore could not execute the sale deeds dated 4-2-1998 and 29-12-1999. It appears that the entire issue has been confused by the learned trial Court.

14. The learned first appellate Court held that the Deeds of Relinquishment executed by the said Maria Linda Cardoso and Albertina Cardoso in the years 1950 and 1959 did not in any manner come in the way of Maria Linda Cardodo and Albertina Cardoso having title in the suit property of Silvestre, and hence they were legally entitled to execute the sale deeds transferring their rights in the suit property which was acquired by their father Silvestre Cardoso in the year 1974.

15. Shri V.R. Tamba, learned Counsel on behalf of the plaintiffs has submitted that the said Maria Linda Cardoso and Albertina Cardoso had accepted money and renounced their rights and had given up their future share in the inheritance of their parents and this position also covered the property subsequently acquired in the year 1974, by their father. On the other hand, Shri Sudin Usgaonkar, learned Counsel on behalf of the defendants, has submitted that as far as the properties of the parents are concerned, the children have no right in the life time of their parents. He further submits that what the said two deeds contemplated is nothing but a gift of acceptance of Rs. 3000/-from their parents towards their legitime. Learned Counsel further submits that there is no word of relinquishment or renunciation of any share or right in the said two deeds executed in the years 1950 and 1959.

16. Reference to Article 2042 of the said Civil Code appears to have been made only to confuse the issue. The first deed is styled as a deed of anti- nuptial contract and second deed as deed of acquittance and anti-nuptial contract. By the first anti-nuptial contract dated 11-10-1950 which was entered into by the said Maria Linda Cardoso all that was stated, as far as the present controversy is concerned, is that the said Maria Linda Cardoso had accepted a sum of Rs. 3000/as gift on account of her future paternal and maternal legitime making her liable to compensate the excess which by chance may arise in her(sic. their) disposable share. Likewise, what is recorded in the deed dated 23-12-1959, inter alia, is that the said Albertina Cardoso had received 6000 escudos towards the ovelty allotted to her in the inventory of her mother Dominga Maria Gonsalves. It was also acknowledged that Rs. 3000/-were given to her by her father on account of her future paternal legitime. The deeds amply make it clear that both the daughters were given the said sums of money, i.e. Rs. 3000/-each in the first case on account of her future paternal and maternal legitime and in the second case on account of her future paternal legitime, since by then their mother had expired. What is legitime? Legitime is the portion which a testator cannot dispose of because the law has reserved it for his lineal descendants and ascendants(see Article 1784). In other words legitime is part of the estate of the deceased whereof the forced heirs cannot be deprived of by the deceased by a gratuitous title or other than for valuable consideration. In other words, it is indisposable share in contradiction to disposable share. Disposable portion is the other part and both make total estate of the deceased. The portion of property which the testator may not freely dispose of is called legitime, in accordance with Article 1784. The testator's remaining property, which is not included in the legitime, and which she/he can freely dispose of in a will, makes up disposable portion. Both the legitime and disposable portion are parts of the whole and, therefore they are inheritances and not legacies. What Maria Linda and Albertina got at the time of marriage was Rs. 3000/-each by way of gift towards the legitime. It is nobody's case that their parents or their father had parted with the disposable portion, to which they were all entitled to succeed. The right to succeed to the estate would accrue to the heirs only on the death of their parents/father, the estate leavers. They did not loose the right to claim inheritance of their parents/father by accepting the said gifts. They only had to adjust the gifts from their share in the value of the estate being determined with reference to the date of death of estate leaver/s. Even if they had given a declaration, that they had received their share in the estate to be left by their parents/father, which is not the case at hand, such declaration would be meaningless in view of Article 2042 of the Code. Suffice to observe that when gifts are given to the daughters at the time of their marriage as is customary in many families, who are forced or mandatory heirs, they are considered as payments in anticipation of their individual shares and they are to be brought back to the mass of inheritance at the time of partition for the purpose of equalization of shares in the estate. There is no question of they having renounced or relinquished any share which they might have had acquired in the other properties of their parents acquired or to be acquired. The property under dispute was acquired by their father in the year 1974 and upon his death all the children would have acquired an undivided right to the same and such undivided right could certainly have been sold by some of them in favour of defendant No. 1.

17. As far as non joinder of the said Maria Linda Cardoso and Albertina Cardoso is concerned, in case the sale deeds executed by them were to be challenged, they were required to be made parties to the suit. Shri Tamba has placed reliance on the decision of the Apex Court in the case of Laxsmishankar Harishankar Bhatt v. Yashram Vasta : AIR 1993 SC 1587. That case was a case where a plea was taken of non joinder of co-owners and such a plea was not entertained because it was vague and was taken without mentioning the names of other co-owners and what rights they had claimed. In the case at hand, the learned first appellate Court was right in concluding that the sale deeds could not be declared as null and void since the vendors of the aforesaid sale deeds were not made parties to the suit, and since the plaintiffs had asked for declaration that the sale deeds were null and void it was incumbent on the part of the plaintiffs to make the vendors as parties to the suit, and that was irrespective of the fact whether the plea of non joinder of necessary parties was taken by the defendants or not.

18. Thus viewed, there are no substantial questions of law involved in this Second Appeal and consequently the same is hereby dismissed.


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