1. These two appeals deal with the primary objection to the maintainability of the appeals before this Court raised on behalf of the respondents in both the appeals. The appellants in the first Appeal from Order had challenged the order dated 15/11/2014 and Order dated 11/12/2014 passed by the Additional Senior Civil Judge, Margao on the premise that there was a misconstruction of the provisions of Article 1417 of the Portuguese Civil Procedure Code. It was also challenged on the premise that the Trial Court had failed to notify to whom the owelty money was payable once the registry had prepared the chart of partition and found that the money was payable. The Trial Court had grossly misread clause ''c'' of Article 1417 and ought to have held that the Inventory Court had no power to extend the time to deposit the owelty money, much less did it have the powers to deposit the money in installments. The appellants in this appeal had therefore sought for a reversal of the impugned order passed by the Trial Court. The respondents had raised a preliminary objection to the maintainability of the appeal on the premise that the jurisdiction to entertain the appeal lay with the District Court and that this Court had no powers to deal with the appeal.
2. Shri M. B. D''Costa, learned Senior Counsel on behalf of the appellants contended that in terms of Article 1369 of the Portuguese Civil Procedure Code the initial valuation of the property would be spelt out by the parties initiating the Inventory Proceedings, that in terms of Article 1387, the Court had to order the appraisal of the properties by the appraiser where no questions were raised against the description or those so raised had been decided. The next stage of valuation would arise when the licitation took place and parties offered the market value. He adverted to the commentary on Judicial Partition by Antonio Joao de Lopes Cardoso which observed that the admissibility of the appeal in the Inventory Proceedings, when the initial value is within the jurisdiction of first instance, depends upon the value which is recorded in the Chart of Partition and submitted that licitation was relevant for determining the Forum of appeal. He also referred to Article 1411 which referred to the stage at which licitation was done apart from partition as contained in Article 1414 and of the Chart of the Partition being drawn thereafter in terms of Article 1416 and submitted that based on the valuation, the appeal was maintainable before this Court. He next referred to Section 451 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 and submitted that in terms thereof, an appeal from the final order made in the Inventory Proceeding shall lie to the competent Court depending upon the value of the assets and such appeal shall be deemed to be an appeal under Section 96 of the Code of Civil Procedure, 1908.
3. Shri M. P. Almeida, learned Counsel for the respondents no.1 and 2 submitted that the issue had received a quietus in view of the enactment of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 and that Section 451 determined the appellate forum. The question which was at large before this Court was whether the value of the assets as referred to in subsection 1 and value of assets at the time of the order provided for in sub-section 2 were synonymous or not. In his submissions, therefore the appeal lay before the District Court. Shri A.D. Bhobe, learned Counsel for the respondents no. 8, 11 and 12 adopted the arguments of Shri M.P. Almeida, learned Counsel for the respondents no.1 and 2 and rested his case on the aspect of maintainability of the appeal.
4. In the next appeal No.50 of 2016 the appellants had taken exception to the order dated 08/07/2006 and the Draft Chart of Partition dated 13/07/2016 passed by the Senior Civil Judge, Panaji. It was the case of the appellants in that appeal that the impugned order and chart was passed with material irregularity and contrary to the provision of Articles 1784, 1789, 2098 and 2099 of the Portuguese Civil Procedure Code. The reasoning adopted by the Trial Court for rejecting the appellant''s Chart of Partition in part, and directing the Chart of Partition to be prepared in the manner done by the Court was based on a wrong interpretation of the law and to the prejudice of the appellant. The Trial Court had erred on such and similar grounds and therefore it was necessary to quash and set aside the impugned order. In this appeal too, preliminary objection was taken to the maintainability of the appeal and therefore in such circumstances Shri S.M. Usgaonkar, learned Senior Counsel came to be heard on behalf of the respondents. He adverted to the application in the Inventory Proceedings No.90/2000, where the inventariante had made a reference to the assets at Rs.5,00,000/- and Rs.1,00,000/- for the purpose of the jurisdiction i.e. the total value of Rs.6,00,000/- being given by the Inventariante. He next referred to the description of assets where the valuation of the land and building was estimated at Rs.5,00,000/- and the shop at Rs.1,00,000/- and the list of assets spelt out by the Cabeca de Casal in which he had valued the item No.1 at Rs.5,10,000/- and the item no.2 at Rs.1,10,000/- and the order being made by the Trial Judge dated 11/12/2007 to comply with the Article 1391 of the Portuguese Civil Code.
5. Shri S. M. Usgaonkar, learned Senior Counsel placed reliance in Vero Nunes and another v/s. Euroco Erasmo Nunes and others (Writ Petition no.119 of 2010) being a judgment of this Court delivered by a learned Single Judge and submitted that in those proceedings the property was initially valued at Rs.1,00,000/- while the Administrator had valued the assets at Rs.5,35,000/- in the course of the Inventory Proceedings and adverted to the findings to substantiate his contention that this judgment supported his case that the valuation at the time of the Inventory Application determined the Appellate Forum and not the valuation done at a latter stage. He also relied on the judgment in Lourdes Gregorio Gomindes and another v/s. Milagres Santana Gomindes (Appeal from Order Nos. 28, 39 and 48 of 2013) where the issue at large before the learned Single Judge of this Court was whether the appeal lay before the High Court when the subject matter of the assets for the purpose of jurisdiction were valued at less than Rs.20,00,000/- and the property being valued at the time of filing of the Inventory Proceedings at Rs.60,000/-. In the said judgment it held that the appeal could not be entertained before this Court and that the appeal memo as well as the annexures had to be returned to the appellants to enable them to file an appeal before the Competent Court of jurisdiction squarely applied to this case and the issue was no longer res integra.
6. Shri S. M. Usgaonkar, learned Senior Counsel next relied on another order in Mr. Renoir I.B. Cota v/s. Mr. Wright Clement Cota and others (A.O.Nos.69 and 70/2013) in which the Administrator was valued the assets at Rs.1,00,000/- while latter the valuation of the assets was fixed at Rs.20,00,000/- and the learned Single Judge having held that the appeals lay before the District Court and not before this Court. According to him, these three judgments held the field and clearly supported his contention that the appeals lay before the District Court in view of the initial valuation and that this Court had no jurisdiction to entertain the appeals. He next contended that Section 451 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 made no violence to these judgments even on the partition and consideration of sub-sections (1) and (2) thereof and therefore the appeals had to be returned to be filed before the District Court.
7. Shri V. Menzes, learned Counsel for the appellant adopted the arguments of Shri M. B. D''Costa, learned Senior Counsel for the appellants in the Appeal from Order No.50/2014 and submitted that there was one valuation of the property at the time of the opening of the inheritance, a second valuation in terms of the Article 1387 at the time of appraisal by the appraiser appointed by the Court and then the value fixed by the Court finally. According to him, the Court had fixed the value of the property at Rs.5,10,000/- unlike its valuation after the bid being Rs.1,54,40,000/-. According to him, the value at the stage when the order is challenged would decide the Appellate Forum and therefore the appeal was very much maintainable before this Court and the preliminary objections had to be dismissed. On his part, he place reliance in Fernando Jorge Colaco v/s. State of Goa and others (1991(2) Goa L.T. 11).
8. Shri M.B. Da Costa, learned Senior Counsel for the appellant in A.O. No. 50/2014 contended that the judgment in Vero Nunes (supra) was clearly distinguishable and that on a bare reading of paragraph no.9 with paragraph no.13 it was apparent that the Court had considered the contention that the valuation at the time of the order determined the forum of appeal. His next submission was that the judgment in Lourdes Gomindes (supra), was per incurium as it had not considered his contention qua the commentary by Lopes Cordoso in its proper context and that the learned Judge had not considered the passage at page 500 which it had erroneously referred to the passage at page 615 which was not discussed. In case the judgment was being considered, the matter had to be referred to a larger Bench. Shri V. Menezes, learned Advocate for the appellant in A.O. No.50 of 16 too distinguished the judgment in Vero Nunes (supra) and asserted the maintainability of the appeal before this Court.
9. i would consider their submissions in the light of the judgments, the relevant provisions of the Portuguese Civil Procedure Code and Section 451 of the Goa Succession Special Notaries and Inventory Proceeding Act,2012 and decide whether the forum of appeal is the District Court or this Court as per the rival contentions.
10. The commentary by Anotinio Joao de Lopes Cardoso on Judicial Partition at page 500 reads
" In this case, there is no doubt at all, the value of the
proceedings is fixed and it is immediately known whether the
appeal lies or not, because it is within or beyond the jurisdiction of
the Court against which the appeal is to be preferred."
There was a reference to a citation that in inventories the
value is only determined when the value of the assets is know at the
stage the description is done and after this value is determined, the
jurisdiction is defined and fixed, unless there is an increase in the
value by licitation or appraisal.
A bare reading of this commentary would substantiate the
case of Shri Usgaonkar, learned Senior Counsel that the value of the
assets which is known at the stage of description would determine
the forum of the appeal and it is not as contended by Shri M. B. Da
Costa, learned Senior Counsel that the value of the appeal would
depend on the Chart of Partition drawn after licitation. In the
appeal filed by Shri M. B. Da Costa, learned Senior Counsel the
valuation of the property was inflated to an amount more than
Rs.2,00,00,000/- unlike the amount which was initially fixed bringing
the appeal within the jurisdiction of the District Court. In the next
Appeal No.50 of 2016, the valuation of the property was a mere
Rs.6,20,000/- even at the time of disclosing the list of assets which
was without prejudice to the appeal filed against the order dated
24/05/2008 and then carried well beyond the jurisdiction of the
District Court.
11. Vero Nunes (supra), took exception to the Order dated
21/01/2010 passed by the District Judge-I, dismissing the objection
taken by the petitioners regarding the maintainability of the appeals
before the District Court. In the brief facts, the Inventory
proceedings were initially valued at Rs.1,00,000/- and in the course of
the inventory proceedings, the Administrator valued the assets at
Rs.5,35,000/-. The petitioners led evidence in which they claimed that
the value of the some of the assets was Rs.5,00,00,000/- and the
Trial Court disposed off several objections taken by the interested
parties. The Petitioners raised an objection to the maintainability of
the appeals before the District Court on the premise that the value
of the assets was more than Rs.20,00,000/-, the appeal would lie
before this Court and not before the District Court. The learned
Single Judge considered the contentions on behalf of the petitioners
and the respondents no.1 and 2 who supported the order and the
other contentions made by the other Counsel appearing for the
different set of respondents and on a consideration of the rival
submissions held that the ratio laid down in the case of Sheela
Rodrigues Vs. Lourencinha Ana D''Cruz Rodrigues (AIR 2000
Bombay 97) was squarely applicable and that in the case at large,
the assets were valued at Rs.1,00,000/- at the time of filing of the
Inventory Proceedings while the Administrator had valued the
assets at Rs.5,35,000/- and therefore held that the lower Appellate
Court was not at all in error by drawing anology that the valuation
of the suit determines the appellate forum and not the amount
decreed and dismissed the petition. The learned Judge had found
that the lower appellate Court had held that in terms of Section 22
of the Goa Succession, Special Notaries and Inventory Proceeding
Act, 2012, the appeal would lie before the District Court since the
value of subject matter did not exceed Rs.1,00,000/- and in that view
of the recent amendment by which the jurisdiction of the District
Court has been increased to Rs.20,00,000/-, the lower Appellate
Court would have jurisdiction to entertain the appeals.
12. In Gomindes (supra), the question which arose for consideration was on the maintainability of the appeal before this Court when the subject matter of the assets for the purpose of jurisdiction were valued at less then Rs.20,00,000/-. In the brief facts, it was pointed out on behalf of the appellants that the subject matter of the assets left behind by the deceased were valued at Rs.60,000/-, while at the time of the auction the value was Rs.30,00,000/- and, as such, the Appeal was tenable before the High Court in terms of Section 22 of the Goa Civil Court''s Act. A reference was also made to the commentary by Dr. Joao Antonio Lopes Cardoso which observed that the forum of jurisdiction changes on the basis of the change in valuation. The learned Judge was seized off the fact that the Orders passed in the Inventory Proceedings are to be considered as Orders passed in terms of Section 104 of the Civil Procedure Code and that the Inventory proceedings were a suit in terms of Section 22 of the Goa Civil Court''s Act.
13. In Gomindes (supra), the learned Single Judge observed that the Inventory jurisdiction of the Court is determined by the subject matter of the suit, referred to Section 6 of the Civil Procedure Code and observed that there was no manner of doubt that it was the value of the suit, i.e., the value of the subject matter thereof that determines the Court in which the suit is to be filed and also determines the forum of the appeal. In that context, it was further observed that there can be no doubt that the forum of appeals challenging an order passed in the Inventory Proceedings would be on the basis of the valuation stated for the purpose of jurisdiction in such proceedings. The subject matters valued at Rs.60,000/- and in view of the provisions of Section 22 of the Goa Civil Court''s Act, the appeal would lie to this Court only in cases in which such valuation is more than Rs.20,00,000/-. Considering that in the present case, the value was much less than the said sum, the forum of appeal to challenge an order passed in the Inventory Proceedings would be the District Court in terms of the said provisions of the Goa Civil Court''s Act. In view of the matter, the learned Single Judge held that the appeal could not be entertained before this Court and ordered the return of the appeal memo as well as the annexures to enable the appellants to file the appeal before the competent Court of jurisdiction. The learned Single Judge had duly considered the commentary by Dr. Joao Antonio Lopes Cardoso on Judicial Partition and therefore the contention of Shri M. B. D''Costa, learned Senior Counsel for the appellant cannot at all be entertained that the commentary was not considered or that there was an erroneous reference to the paragraph in the judgment as to justify the reference of the matter to a larger Bench for consideration.
14. In Renoir I.B. Cota (supra), another learned Single Judge of this Court was dealing with the Appeal from order in the Inventory proceedings pending before the Civil Judge, Senior Division at Vasco where the Administrator had valued the assets at Rs.1,00,000/-. However, in the course of the proceedings, the valuation was fixed at Rs.2,00,00,000/-. The learned Judge considered the unreported judgment in Lourdes Gregorio Gomindes (supra), which had discussed the provisions of Section 22 of the Goa Civil Court''s Act and held in the facts that as the initial valuation was Rs.1,00,000/-, the forum to challenge the order passed in the Inventory proceedings would be the District Court and in that light ordered the return of the appeal to be filed before the District Court, South Goa, Margao. Each of these judgments relied upon by Shri S.M. Usgaonkar, learned Senior Counsel for the respondents in the Appeal No.50/2016 amply substantiatesc the case that it is the initial valuation which would determine the forum of appeal and not that done at different stages which would have the effect of providing multiple fora of appeal to the parties depending on the stage of valuation and create an anomalous situation.
15. Fernando Colaco (supra), a Public Interest Litigation was regarding the grievance on the levy of stamp duty on owelty amounts directed to be paid in the Inventory Proceedings. In that context the Division Bench of this Court had formulated three questions for determination. However, except that part holding that the final judgment which emerges in the Inventory Proceedings is in fact an instrument of partition and should bear stamp duty, the judgment with respect has no bearing on the case at hand and is therefore clearly distinguishable.
16. In terms of Section 451 of the new Act, an appeal from the final order made in the inventory proceeding shall lie to the competent Court depending upon the value of the assets and such appeal shall be deemed to be appeal under Section 96 of the Code of Civil Procedure,1908. However, in terms of sub-section 2, an appeal from an order shall lie from every order, other than a merely administrative order, made in the inventory proceedings to the competent Court depending upon the value given to the assets at the time the order is made and appeal shall be deemed to be an appeal under Section 104 of the Code of Civil Procedure, 1908. In other words an appeal from a final order which is deemed to be an appeal under Section 96 i.e. an appeal from an original decree shall lie to the Court depending on the value of the assets while an appeal from order which is akin to that under Section 104 of Code of Civil Procedure, 1908 shall lie to the competent Court depending on the value given to the assets at the time order is made. A reading of Section 451 of the new Act clearly makes a distinction between an appeal to the competent Court from a final order in terms of sub-section 1 and an appeal in terms of sub-section 2 being an appeal from order to the competent court based on the value at the time of the order. Therefore there is no basis in the contention of Shri M.P. Almeida, learned Advocate that these two situations are not synonymous. A reference to this section also does not substantiate his contention that the appeal would lie to the High Court considering the judgment in Vero Nunes, Lourdes Gregorio Gomindes and Renoir I.B. Cota (supra). In the ultimate , it is apparent as contended by Shri S. M. Usgaonkar, learned Senior Counsel for the respondent in A.O. No. 50 of 2016 that these three judgments hold the field and in view thereof the appeals are required to be returned to be filed before the District Court considering the valuation of the assets.
17. In view of the above discussion, the appeal memos alongwith the annexures are ordered to be returned to the appellants to be tendered before the competent Court having jurisdiction within two weeks from the receipt thereof. It goes without say that the learned District Judge will consider the aspect of delay in preferring the appeal. In the event the issue of limitation arises, the appellants would be at liberty to urge that they were prosecuting the above appeals in this Court and which shall be taken into consideration while deciding the issue of limitation.
Shri M.B. D''costa, learned Senior Counsel for the appellant in
Appeal from Order No.50 of 2014 submits that there was a stay
operating in his favour which may be continued for a period of two
weeks. Shri A. D. Bhobe, learned Advocate for the respondent
nos.8, 11 and 12 fairly concedes that the operation of the stay could
so continue.
Shri V. Menezes, learned Advocate for the appellant in the
Appeal from Order No.50 of 2016 submits that there was a stay
operating in his favour which may be continued for a period of two
weeks. Shri S. M. Usgaonkar, learned Senior Counsel for the
respondent nos.1,2, 10 and 11 fairly concedes that the operation of
the stay could so continue.
Interim stay in both the appeals to continue for two weeks.
