Second Appeal No.89 of 2003

4th August, 2010

Petitioner Counsel: Mr. GALILEO TELES
Respondent Counsel: Mr. S. D. LOTLIKAR,Mr. G. XETTIGAR

Cases Cited:
Datta Bandu Sadale Vs. Shridhar Payagonde Patil, AIR 1992 Bombay 422 [Para 6,8]
Marcus Nunes Vs. Filomina Sebastiano, 2000(2) Goa Law Times 539 [Para 6]

JUDGMENT

JUDGMENT :- This appeal throws challenge to the judgment and order dated 10th June, 2003 passed by the Additional District Judge, South Goa, Margao in RCA No.165/2001 for quashing the judgment and decree of IIIrd Addl. CJSD, Margao effecting division of the properties amongst the plaintiff and the defendant in Special Civil Suit No.270/1995/III.

2. The appellant was the defendant in the said suit instituted by his wife Filomina Fernandes - the respondent herein, for the dissolution of their marriage and separation of their properties and assets. The appellant disputed the claim for divorce made by the respondent in the said suit, and as and by way of counter-claim sought divorce with a specific pleading that he remained entitled for a decree of divorce under Article 4, sub-clauses 4 and 5 of law of divorce in Chapter II of Portuguese Civil Code. Additionally, he made counter-claim for the division of assets of wedlock (Casal) in terms of Articles 26 and 27 in Chapter II of Portuguese Civil Code. In his written statement to the said suit, the appellant gave elaborate account of properties held by them including the properties given by the parents of the respondent plaintiff at the time of marriage, the properties given by him to the respondent, the properties given by way of dowry to their daughter at the time of marriage and the monies given by their son-in-law Mr. Francisco Xavier Fernandes.

3. It appears that the respondent did not give reply to the counter-claim and failed to appear before the Trial Court. As a consequence thereof, the learned Trial Court proceeded to allow the counter-claim of the appellant on the basis of the evidence of the appellant adduced in form of an affidavit at Exh.13 as per Order 19, Rule 1 of CPC. As a sequel thereto, the learned Trial Court dissolved the marriage between the appellant and the respondent, and allotted the properties enlisted amongst the appellants and the respondents.

4. This allotment of the properties and not the dissolution of the marriage was challenged by the respondent herein in Regular Civil Appeal No.165/2001 preferred before the District Judge, South Goa at Margao. After hearing the parties, the learned District Judge, South Goa at Margao gave negative finding in respect of the following point :

"Whether the assets and the properties of the spouses can be ordered to be partitioned in view of Article 26 of Law of Divorce ?" and proceeded to quash the order of the learned Trial Court allotting the properties amongst the plaintiff and defendant in the said suit.

5. According to the Ld. Advocate Teles for the appellant, the substantial questions of law framed are not properly worded, and is, therefore, seeking answer to the following remodelled substantial questions of law arising in the present appeal :

(i) Whether Article 26 of Law of Divorce, 1910 provides the exclusive remedy for partitioning the properties amongst the spouses through inventory proceedings and (ii) Whether the counter-claim in divorce suit is impermissible ?

6. In his view, Article 26 of the Law of Divorce, 1910 is not the exclusive remedy for partitioning the properties amongst the spouses and the learned Trial Court was right in making division of the properties and allotting them amongst the plaintiff and the defendant in the said suit for dissolution of marriage. As regards the grant of the counter-claim made under Article 15 in Chapter II 'of contested divorce' of Portuguese Civil Code, he submitted that if the Court has power to entertain the counter-claim under the said Article of Portuguese Civil Code then the Court would not be powerless to grant relief of separation of properties irrespective of procedure provided under Article 26 of the said Code, more particularly so when the particulars of the properties were elaborately given in the written statement/counter-claim and the contesting party the plaintiffs had abandoned the proceedings. In order to augment his submission, he cited judgments reported in AIR 1992 Bombay 422; Datta Bandu Sadale Vs. Shridhar Payagonde Patil and others; 2000(2) Goa Law Times 539 - Civil Revision Application No.175/2000; Marcus Nunes and 8 others Vs. Filomina Sebastiano and others.

7. Countering his arguments, learned Advocate Lotlikar for the respondents submitted that the counter-claim is essentially a cross-suit and, therefore, what cannot be granted in a suit cannot be granted in the counter-claim. He pointed out that reading of sole paragraph to Article 15 under the said Chapter of Portuguese Civil Code reveals that the judgment disposing of the main suit and the counter-claim shall have to state whether divorce is granted on the ground of the suit or of the counter-claim, and this delineates the scope of counter-claim in clear terms. According to him, such outcome of the counter-claim is warranted to answer a question as to who amongst the warring spouses was innocent person as envisaged under Article 27 of the said Code for the purposes of dealing with the benefits received or to be received from other spouse. He further pointed out that Article 26 of the said Code conceives only of two modes for separation of property, one by amicable settlement between the parties and other by inventory proceedings as per the general law; and if the counter-claim is a cross-suit, legal consequence of the dissolution of marriage would not be different than the one which would have followed at the end of the suit for the said relief. He further submitted that the provision of Article 15 of the said Code has been made to avoid multiplicity of the proceedings, but it needs to be borne in mind that one legal provision should not be read to render the other legal provision negative and, therefore, calls for harmonious interpretation of Article 15 as well as Article 26 of the Code. He further submitted that elaborate procedure for identifying the individual and joint assets as well as liabilities has been spelt out in the general law governing the inventory proceedings under the Portuguese Civil Code and the said provisions have been further made to ensure equitable distribution of assets amongst the interested parties, including the minors. In his view, the learned Trial Court did not undertake such exercise as prescribed by general law to arrive at the equitable distribution of the assets amongst the spouses as envisaged under Article 26 of the said Code and, therefore, the learned First Appellate Court was right in quashing the order allotting the properties amongst the spouse. Considering the provisions of the Portuguese Civil Code, he submitted, the answer to the substantial question of law raised in the present appeal has to be in affirmative as regards the separation of assets undertaken by the Trial Court contrary to the express provision under Article 26 of the said Code.

8. In Datta Bandu Sadale's case (supra) with reference to the provisions of the Code of Civil Procedure, 1908, this Court clarified that there is no requirement that the counter-claim must be of the same nature as the claim of the plaintiff or that it must be arising out of the same transaction. There can be no dispute about this proposition and, therefore, it cannot be said particularly with reference to Article 15 of the Portuguese Civil Code that the counter-claim in divorce suit is not impermissible.

9. The provisions of Portuguese Civil Code are in Portuguese language. What has been placed before this Court for the purposes of understanding the said provisions are rendering of some such provisions in English language done by the learned Senior Advocate of this Court Mr. M. S. Usgaonkar and published under the caption "Family Laws of Goa, Daman and Diu", Volumes I and II. None of the parties have any dispute about such rendering of the legal provisions in Portuguese Civil Code from Portuguese to English language.

10. Rendering of Article 15 in English as found in Volum I of Family Laws of Goa, Daman and Diu reads as under :-

"Counter-claim are always admissible in divorce suits, which shall be filed as per the provisions of Article 332 onwards of the Code of Civil Procedure."

"Sole paragraph - the main suit and the counter-claim shall be tried and decided as a single case and the judgment which shall be delivered in main suit shall state, if divorce case is held tenable whether the divorce is granted on the ground of suit or of the counter-claim."

11. Article 26 governing separation of properties between the spouses under the said Code reads as under :

"The grant of divorce always results in separation of the properties between the spouses and each of them acquires full ownership and free management of the properties belonging to them and may deal with them freely and in any manner."

Sole Paragraph - The separation and division of the property between the spouses can be made amicably by way of public deed or through the Court by way of inventory in accordance with general law.

12. If the aforesaid articles are read in juxtaposition, it can be clearly seen that separation of the properties between the spouses is necessary fall out of the grant of divorce and adjudication of a counter-claim in divorce suits warrants an answer as to who amongst the warring spouses was innocent person as envisaged under Article 27 of the Portuguese Civil Code for the purposes of dealing with the benefits received or to be received from other spouse. Article 26 of the Portuguese Civil Code stipulates the manner in which the rights of the parties to the properties belonging to them are to be settled and the said property divided amongst them accordingly. One of the mode of settling such rights is by way of public deed made by the parties/spouses amicably i.e. by amicable settlement between the spouses. The other mode which is open to the Court in absence of such amicable settlement is by way of inventory in accordance with general law. This has been so specifically incorporated in the law governing separation of properties between the spouses in order to ensure equitable distribution of assets/properties between the spouses at the hands of the Court.

13. Article 15 of the Portuguese Civil Code, as rightly submitted by the learned Advocate Lotlikar for the respondent, has been made to avoid multiplicity of the proceedings and ought not to be read to render the other legal provision i.e. Article 26 of the Code nugatory. Paragraph 14 of the written statement of the appellant defendant in the said suit reveals that the amicable settlement between the parties was distant dream. The learned Advocate Teles for the appellant conceded to the fact that the appellant did not suggest any equitable distribution of assets between the parties. Mere enlisting of the assets in the written statement followed by non-prosecution of the suit cannot be read as amicable settlement between the parties as regards the separation of the assets between them.

14. In Marcus Nune's case, the pleadings of the rival parties reveal that the shares of the rival parties in the suit for declaration and for partition of the suit property were determined and admitted by all the parties concerned, and, therefore, inventory proceedings were found to be formal and redundant. As discussed above, the parties were never at agreement as regards their shares in the properties belonging to them. The case cited is, therefore, of no assistance to the appellant.

15. In given situation, Article 26 of the Portuguese Civil Code required the parties to take recourse to obtaining of separation of their assets through the Court by way of inventory in accordance with the general law. Thus, in absence of amicable settlement between the spouses as regards separation of their assets, Article 26 of Law of Divorce, 1910 provides exclusive remedy for partitioning the properties amongst the divorced spouses through the Court by way of inventory proceeding in accordance with general law, and that is what was prayed for by the appellant in his counter-claim. Substantial questions of law raised in the present appeal are, therefore, answered accordingly.

16. In view of the aforesaid discussion, no merit is seen in the present appeal. The appeal is, therefore, dismissed with no order as to costs. Parties are free to pursue the remedy for obtaining separation of their assets through the Court by way of inventory in accordance with general law.

Appeal dismissed.