2008(5) ALL MR 784
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)

S.A. BOBDE, J.

Mrs. Sitabai Vishnu Shenvi Desai Vs. State (Through Chief Secretary)

Writ Petition No.287 of 2008

6th June, 2008

Petitioner Counsel: Mr. V. R. TAMBA,Mr. ANTHONY D'SILVA
Respondent Counsel: Ms. W. COUTINHO

Portuguese Civil Code, Art.1488 - Property of minor - Application seeking authorisation for sale of - Rejection of without even issuing notices to relatives on ground that no inventory proceedings or interdiction proceedings were brought to notice of court - Improper - Matter remanded for adjudication in accordance with Art.1488.

A sale, lease or mortgage may be authorised by the Court upon hearing the relatives or persons convenient to be heard, but that, if inventory proceedings are pending then the application for authorization will be granted in accordance therewith. There is no bar on the grant of authorization unless inventory proceedings have been initiated and decided. This interpretation is fortified by the fact that such an application for authorization would normally be made where it has become necessary to dispose of the property of a incapacitated person and it would run contrary to the intention of the legislature if such applications were rejected at the outset because the inventory proceedings or interdiction proceedings are not filed. It must be noted that a provision is made to safeguard against a wrongful authorization. In that, it makes it obligatory for a Court to grant or refuse authorization only after hearing the relatives of the incapacitated person or persons convenient to be heard and after carrying out the necessary services. The provision also makes it mandatory for the Court to hear the Public Prosecutor and the property owner himself, when a minor aged more than fourteen years or interdicted for wastefulness. In the present case, the Court has rejected the application for authorization without even issuing notices to the relatives, presumably since the learned Judge was of the view that such an authorization cannot be granted without proceedings for inventory and interdiction have been taken and depending on their outcome. Matter is remanded for deciding the application for authorization in accordance with Article 1488 of the Code, after issuing notices to the relatives of the incapacitated person and to any other persons convenient to be heard. However, if any inventory or interdiction proceedings are found to be pending, the court shall decide the application for authorization depending on the result of those proceedings. [Para 5,6,7]

JUDGMENT

JUDGMENT :- Rule, returnable forthwith. Heard by consent.

2. By the impugned Order, the Civil Judge, Sr. Division, Mapusa has declined to pass any orders authorising the petitioner to sell the properties of the minor under Article 1488 of the Portuguese Civil Code.

3. According to the learned Civil Judge, such an application for authorisation may be considered and granted depending on the inventory proceeding or the interdiction proceeding. Since no inventory proceedings were brought to the notice, the learned Civil Judge has dismissed the application as premature.

4. Article 1488 of the Portuguese Civil Code, translated officially, reads as follows :

"When it is necessary to sell, lease, mortgage or by any other manner oblige the property of minors or of interdicted persons and the act depend on judicial authorization, this shall be applied for, stating the justification for the act and immediately giving proofs.

The authorization shall be granted or denied after hearing the relatives of the incapacitated person or the persons convenient to be heard, and after carrying out the necessary services, it being, however, compulsory to hear the Public Prosecutor and the property owner himself when a minor aged more than fourteen years or interdicted for wastefulness.

Sole Para. The application shall depend on the inventory proceeding, if any, or on the interdiction proceeding.

Civil Code, Articles 150 and 322"

5. On a true construction, it appears that such a sale, lease or mortgage may be authorised by the Court upon hearing the relatives or persons convenient to be heard, but that, if inventory proceedings are pending then the application for authorization will be granted in accordance therewith. There is no bar on the grant of authorization unless inventory proceedings have been initiated and decided. This interpretation is fortified by the fact that such an application for authorization would normally be made where it has become necessary to dispose of the property of a incapacitated person and it would run contrary to the intention of the legislature if such applications were rejected at the outset because the inventory proceedings or interdiction proceedings are not filed. It must be noted that a provision is made to safeguard against a wrongful authorization. In that, it makes it obligatory for a Court to grant or refuse authorization only after hearing the relatives of the incapacitated person or persons convenient to be heard and after carrying out the necessary services. The provision also makes it mandatory for the Court to hear the Public Prosecutor and the property owner himself, when a minor aged more than fourteen years or interdicted for wastefulness.

6. In the present case, the Court has rejected the application for authorization without even issuing notices to the relatives, presumably since the learned Judge was of the view that such an authorization cannot be granted without proceedings for inventory and interdiction have been taken and depending on their outcome.

7. In the circumstances, the impugned order is, hereby, set aside. The matter is remanded to the learned Civil Judge, Sr. Division, Mapusa for deciding the application for authorization in accordance with Article 1488 of the Code, after issuing notices to the relatives of the incapacitated person and to any other persons convenient to be heard. However, if any inventory or interdiction proceedings are found to be pending, the learned Civil Judge, Sr. Division shall decide the application for authorization depending on the result of those proceedings.

Rule disposed of accordingly.

Before parting with the Judgment, this Court appreciates the valuable assistance rendered by the learned amicus curiae in interpretation of the law on the subject.

Ordered accordingly.