Appeal From Order No. 47 of 2012

5th March, 2013

Petitioner Counsel: Mr. A.D. Bhobe
Respondent Counsel: Mr. J.F. Melo

JUDGMENT

JUDGMENT :- Heard Shri A. D. Bhobe, learned Counsel appearing for the Appellant and Shri J. F. Melo, learned Counsel appearing for the Respondents.

2. The above Appeal challenges the Order dated 02.02.2012, whereby an application filed by the Respondents dated 26.03.2010 seeking three reliefs namely removal of the Appellant-Cabeca de Casal and discard the statement of oath dated 27.08.2009 and also to drop the Inventory Proceedings came to be disposed. By the impugned Order, the learned Judge dropped the proceedings as the same were not filed by the heir of the deceased.

3. Shri A. D. Bhobe, learned Counsel appearing for the Appellant, has assailed the impugned Order as, according to him, it is not in dispute that the Appellant and the Respondent no. 3 have married under the communion of assets and, as such, the Appellant has a right/interest in the estate of the deceased. Learned Counsel further pointed out that it is also not in dispute that the deceased has expired during the subsistence of the marriage between the Appellant and the Respondent no.3 and, consequently, merely because the divorce petition has been disposed of by Judgment and Decree dated 20.03.2007, does not disentitle the Appellant to her right to the estate of the deceased. Learned Counsel further pointed out that the learned Judge has dismissed the application only on the ground that the Appellant is not the heir of the deceased which is unsustainable.

4. On the other hand, Shri Melo, learned Counsel appearing for the Respondents, pointed out that as the marriage between the Appellant and the Respondent no.3 has been dissolved, the communion between them also ceases. Learned Counsel further pointed out that as the divorce has been confirmed in the year 2007, the question of filing any Inventory Proceedings in the year 2010 is totally unsustainable. Learned Counsel further pointed out that the Appellant is not a heir of the deceased and, as such, the question of initiating any Inventory Proceedings on her own does not arise. Learned Counsel further pointed out that the heirs of the deceased are not interested to proceed with the Inventory Proceedings and, as such, the Appellant cannot force a partition on the said heir. Learned Counsel, as such submits, that the learned Judge has rightly passed the impugned Order and, as such, no interference is called for therein.

5. I have carefully considered the submissions of the learned Counsel and have also gone through the records. The records reveal that the deceased expired during the subsistence of the marriage. Hence, the communion of the couple includes the right in the inheritance to the said deceased. Considering the said aspect, it cannot be disputed that the Appellant is an interested party in the said proceedings. Taking note of the fact that the communion between the couple was subsisting as on the date of the opening of the inheritance of the deceased, the contention of Shri Melo, learned Counsel appearing for the Respondents, to the effect that the communion ceased upon the dissolution of the marriage in the year 2007, cannot be accepted. In case the deceased had to expire after the dissolution of marriage, no doubt, the contention of Shri Melo, learned Counsel appearing for the Respondents, would be acceptable. Considering that the Appellant is an interested party in the Inventory Proceedings, I find that the learned Judge was not justified to drop the Inventory Proceedings as the same was filed by the Appellant, who is not the heir of the deceased. Dr. Joao Antonio Lopes Cardoso, in his book Partilhas Judiciasis - Teoria e Pratica, Volume I at Page 127 Para 38, has clearly observed that the wife of the heir of the deceased who was married in communion of assets can qualify as an interested party in the Inventory Proceedings of the deceased. Hence, considering the above, the learned Judge was not justified to hold that the Appellant was not entitled to file the Inventory Proceedings.

6. No doubt, the Appellant may not be the heir of the deceased nevertheless, she is entitled to a moiety share along with the Respondent no.3 in the inheritance of the said deceased. However, the rights of the Appellant in such proceedings are restricted in terms of the Portuguese Civil Code as well as Portuguese Civil Procedure Code. No doubt, the Appellant is not entitled to be appointed as a Cabeca-de-Casal and to that extent, the relief sought by the Respondents is not, prima facie, justifiable.

7. Be that as it may, considering that the other relief sought by the Respondents have not been considered whilst passing the impugned Order, I find that it would be appropriate that the learned Judge be directed to decide the said application afresh in the light of the observations made herein above. It is made clear that merely because the Appellant is entitled to file the Inventory Proceedings, by itself would not mean that she has a definite share in the estate of the deceased. This dispute has to be considered on its own merits during the disposal of the Inventory Proceedings, in accordance with law. It is also to be noted that it is not in dispute that a divorce Decree has been passed dissolving the marriage between the Appellant and the Respondent no.3. No doubt, in terms of law, the Inventory Proceedings to partition the assets of the couple are to be filed in the said proceedings. Hence, this aspect will have to be taken note of by the learned Judge whilst disposing of the Inventory Proceedings.

8. In view of the above, I pass the following :

ORDER

i) The impugned Order dated 02.02.2012, is quashed and set aside.

ii) The learned Judge is directed to decide the said application filed by the Respondents, afresh in the light of the observations made herein above.

iii) The parties are directed to appear before the learned Trial Judge on 29.04.2013 at 10.00 a.m.

iv) Rule stands disposed of.

Ordered accordingly.