Appeal From Order No.26 of 2000

27th August, 2008

Petitioner Counsel: Mr. M. S. USGAONKAR,Ms. GAYATRI KALE
Respondent Counsel: Mr. M. B. D'COSTA,Ms. MADHUMITA PARAB

Cases Cited:
Zacarias Durate Domingos Pereira Vs. Camilo Inacio Evaristo Pereira, AIR 1984 Bom. 295 [Para 9]

JUDGMENT

JUDGMENT :- This appeal is directed against an Order passed on 23.2.2000 by the learned Civil Judge, Senior Division, Panaji below Exhibit 9 in Inventory Proceedings no.90/1978/A, whereby she refused to draw up map of partition and instead decided to proceed further with auction of shares.

2. Facts relevant for deciding this appeal are as under :-

Appellant is Cabeca de Casal (head of the family) in the inventory proceedings taken out upon the death of a person in whose property, a plot of land admeasuring 820 square metres, the parties claim a share. Article 1390 of Portuguese Civil Procedure Code 1939, (hereinafter referred to as 'Procedure Code') provides for making a final description (valuation as well) of properties and debts. This exercise was completed on 14.04.99, and the matter was posted for objections, if any, on 20.4.99. No objections were filed, but then the matter is alleged to have been wrongly posted for auction. Service on unserved heirs was completed by 30.6.99 and the proceeding was adjourned to 15.7.99 for submitting a map of partition (mode of partitioning the property). The matter was adjourned thrice thereafter. On 5.10.99, the respondent for the first time demanded auction. Inspite of objections by the appellant, head of the family, that such a prayer was beyond limitation, the learned Judge by the impugned order, allowed respondent's prayer calling for auctions. Hence this appeal.

3. I have heard learned Senior Counsel Mr. M. S. Usgaonkar for the Appellant and Mr. M. B. D'Costa, learned Senior Counsel for the respondents. Both the learned Counsel painstakingly enumerated the nature and scope of inventory proceedings, as well as the chronology in which various steps in the proceedings are to be taken, elaborating the procedure for taking such steps. Inventory proceedings are summary proceedings to determine and distribute assets left by a deceased. Initially, the rights of the parties in this behalf, as also procedure for determining these rights, was contained in the Portuguese Civil Code (hereinafter referred to as the Civil Code). Sub-Division V thereof, titled as "of the Licitations and Partition contains provisions relevant for the present purpose". "Licitation" is a limited auction between the heirs so as to avoid sub division of properties in small pieces. After settling description of properties (i.e. stating valuation) the parties meet in a conference wherein, such amongst them as are willing to offer a higher price for property/ies would make a declaration to this effect. This Code, as also the 1939 Code, are in Portuguese and relevant parts thereof have been translated in English, in books by the learned Counsel for the appellant. Article 2126 of the Civil Code, which has been referred to by the learned Civil Judge in her impugned order reads as under :

"After the description and appraisal is done, as aforesaid, the parties shall be heard as to the form of partition, and if any of them is willing to bid for any property or other object, he shall so declare in his reply."

4. In 1939, a Code of Civil Procedure (the Procedure Code) was enacted and came into force from 1.1.1940. An attempt was made to separately codify procedural aspects from law dealing with substantive rights. Chapter XVII of this Procedure Code deals with inventory proceedings. Division II of this Chapter relating to "Appraisal Description" contains Article 1379 which is relevant for considering the questions raised. It reads as under :-

"Once the lists of the properties have been submitted or the time limit within which they should have been submitted has expired, the file shall be made available, for examination, for forty-eight hours, to each of the heirs who have appointed advocate, as per order of their appointment, thereafter to the advocate of the donee and of the administrator, and finally inspection shall be given, for the same period to the Public Prosecutor, when the inventory is of orphan's jurisdiction.

During the period of examination or inspection the advocates and the Public Prosecutor may complain about lack of description of the properties, or give their say in case the administrator or the donee deny the existence of the properties in their possession or the duty to bring them under collation, or raise question as to which properties he received and has obligation to collate.

The same thing may be done, by application, till the time of the end of examination, by the heirs and moiety holder who have not appointed advocates.

Sole Paragraph : The lack of description of the properties may be raised subsequently at any time; but one who raises it shall satisfy that he got the knowledge of the existence of the properties only on the date he presented the application. There upon the procedure prescribed in the next Article shall be followed."

5. "Sole paragraph" or "Paragraph 1", "Paragraph 2" etc. contained in these articles of Portuguese Civil Code or Portuguese Code are akin to explanations appended to sections in enactments in the common law traditions.

6. Division III of Chapter XVII of Portuguese code prescribes procedure for conference of parties. Article 1391 thereof is relevant for dealing with contentions raised. It reads as under :-

"After the description is made, what is provided in the first part of Article 1390 shall be observed.

During the time of examination or of the inspection it is lawful to complain against excessive valuation, make application to convene the conference of the parties and make declaration of licitation on certain and specified properties indicating the value offered over and above the valuation.

The same thing may be done, till the time of the examination, by the parties who have not appointed an advocate.

Sole paragraph : The licitations may be applied only till the end of the time for examinations. What is provided in the Article 1404 is excepted and the case, in which, as consequences of in officiousness, properties gifted and bequeathed are to be returned to the mass of inheritance. In this case the licitations may be applied till the examination of the file for the purposes of form of partition."

7. Division IV dealing with "Second Appraisals and Licitations" contains Article 1411 which too is relevant for dealing with the controversy. It reads as under :-

"The licitation shall take place, if possible, on the same day of the conference of the parties and immediately thereafter. It is lawful to withdraw the declaration of desire to offer a bid till the respective item is put to bid; but in such an event any other party shall be allowed to apply for the licitation on the same item."

8. Apart from these provisions, the Civil Code also contain provisions as to limitation. These provisions apply whenever no special limitation is prescribed in the relevant articles. Para 2 of Article 146 contains a provision to explain delay by pleading a just impediment.

9. It may be seen that because of peculiar nature of inventory proceedings, auctions (licitations) therein bear no similarity to auctions in execution of decrees of Civil Courts in India regulated by Order 21 of the C.P.C.. It has been so held by this Court in Zacarias Durate Domingos Pereira Vs. Camilo Inacio Evaristo Pereira reported at AIR 1984 Bom. 295.

10. Licitations, or auctions in which bidders are only sharers in the property, lead to a revision of valuation of property. Shorn of details, at licitation, the highest bidder takes the property to the exclusion of others by depositing "owelty"-the amount of bid minus value of his share, which is then distributed amongst other sharers. The rules provide for preferences to be given in such bidding, the Order in which parties offer their bids etc. In this background, the point for determination in this appeal is whether the learned Civil Judge erred in entertaining respondent's plea for licitation after the stage of making it had expired ?

11. It is the appellant's contention that on 20.4.99, the matter was wrongly posted for auction, though no such application/demand was made by anyone. Under Article 1391 quoted above declaration of licitation has to be made during the time of examination or inspection, which is regulated by article 1379. The explanation (sole paragraph) of Article 1391 specifically provides that licitation may be applied only till the end of time of examination. From 15.7.99 onwards, the matter was adjourned for furnishing map of partition, there being no valid request for licitation pending. Yet respondent's request for licitation, made on 5.10.99, was entertained relying on Article 2126 of the Civil Code, since the Article provides that after the description and appraisal is done, if any party is willing to bid he may so declare by his reply. The learned Counsel for Appellant submitted that reliance on Article 2126 was misplaced, since upon enactment of the Procedure Code in 1939, procedure, including time for claiming licitation, was governed by Articles 1379 and 1391 of Procedure Code. Further, if it were to be presumed for a while that no limitation for seeking licitation was prescribed by relevant articles, then general provision as to limitation under Article 146 would govern and the respondent ought to have applied for condonation of delay under Para II of Article 146. He therefore contended that the impugned Order needs to be quashed.

12. His learned adversary did not dispute that Article 2126 of Civil Code had no application to the case. He however submitted that on 10.11.81 the appellant, Cabeca de Casal, had himself applied for licitation by offering bid of rupee one over and above the valuation shown. This was long before the exercise of final description was completed on 14.04.99. The learned Counsel further submitted that under Article 1379, after lists of properties have been submitted, the file has to be made available to parties concerned for forty-eight hours each. This was not followed in the instant case (and in fact is not followed in many cases). The learned Counsel submitted that if claim for licitation has to be made only till the end of time of examinations, there would be a difficulty if examinations themselves do not take place as per prescribed procedure.

13. The learned Counsel for respondent submitted that as a fact there was a declaration for licitation by the appellant. It is not shown to have been withdrawn. Therefore till such a demand is alive there is no question of proceeding to draw map of partition. He further submitted that should appellant withdraw the declaration, the respondent would have a right to apply for licitation in view of provisions of Article 1411. Such an eventuality has not yet arisen. Yet respondent applied for licitation well in advance. Hence according to the learned Senior Counsel for respondent, though the learned Civil Judge has needlessly invoked Article 2126 of Civil Code, the order does not suffer from any infirmity.

14. The learned Counsel for appellant did not dispute that his client had in fact sought licitation by application dated 10.11.81 and could not point to any action whereby this declaration was ever withdrawn. In view of this demand by appellants which is still subsisting, appellant cannot be heard to oppose licitation, or insist on proceeding to the next stage of drawing map of partition. In view of this it has to be held that respondent's prayer for licitation had not been made after the expiry of time for making such prayer. Consequently appeal is dismissed, with no order as to cost. Records and proceedings be sent back to the Trial Court. Parties to appear before the Trial Court on 30.9.2008 at 10.00 a.m. without further notice.

Appeal dismissed.