1. Heard Mr. Nigel Costa Frias, learned Counsel for the appellants.
2. Admit.
3. By the impugned order dated 12.09.2013 passed in Inventory Proceedings No.453/2012/F, the learned Civil Judge, Junior Division "F" Court Mapusa, had rejected the objection on behalf of the interested parties No.4(iv) and 4(v) against which the present appeal is preferred.
4. Brief facts can be stated as follows:-
The respondent had filed an application for
commencement of the Inventory Proceedings in terms of Article 1319
of the Portuguese Civil Code( For short "PCC") on the demise of Mr.
Anthony Xavier Lobo and his wife Dorothy Lobo, expired on
29.3.1946 and 16.09.1990 respectively. The respondent was
appointed as an Cabeca de Casal in terms of Article 2072 of the PCC.
The said Cabeca de Casal declared the names of all the legal heirs
with their spouses wherein the appellants were also declared as the
legal heirs and the inheritors of the deceased Anthony Lobo and his
wife. After obtaining the copies of the application for commencement
of the Inventory Proceedings alongwith the death certificate and the
copy of the statement on oath, the appellants raised objections vide
their representation dated 18.2.2013, by making a prayer to remove
Cabeca de Casal from the post of Administrator and instead, appoint
appellant no.1 as new Cabeca de Casal of the assets of the deceased
Anthony Lobo and his wife. The appellants raised an objection on the
ground that the assets were under valued. The objections raised by
the appellants were refuted by the respondent. However, the learned
Judge by the impugned order overlooked the objection dated
18.2.2013 filed by the appellants and therefore, they approached this
Court.
5. The main grounds on which the impugned order has been
assailed are that the learned Judge failed to consider the facts that
the respondent who was appointed as an administrator to administer
the estate of the deceased was not the resident of Goa but was
permanent resident of Rua Rodrigo Alvares, Lote 12 A-2D, 8600-315
in Portugal. The respondent had nowhere disclosed his nationality in
his application for commencement of Inventory Proceedings in terms
of Section 1391 of the PCC. He had not identified himself properly as
far as his nationality is concerned which had led to ambiguity. The
impugned order is also assailed on the ground that the learned Judge
had failed to consider the fact that the respondent had never looked
over the property in the light of the fact that he is resident of Portugal
who had left Goa 40 years ago. The learned Judge overlooked the
fact that inheritance assets were always looked after by sister of the
respondent Mrs. Maria Cleofa Delia Lobo alias Cleo Lobo and the
brother of the respondent Mr. Diago Lobo who is also father/father in
law of the appellants during his life time and same were taken care
of by the appellants nos.1 and 3. The learned Judge has also failed
to consider the fact that appellant no.1 alongwith her aunt appellant
no.3 and her uncle Mr. Albert Lobo are the only heirs of the deceased
residing in the State of Goa. The learned Judge has also failed to
observe that the respondent was neither residing with the deceased
at the time of their death nor he is domicile of the State of Goa,
therefore, disqualified from acting as an Administrator of the assets of
the deceased. As a resident of Portugal the respondent would not be
able to effectively perform the task of the administration of the assets
of the deceased and therefore, his appointment as Cabeca de Casal
would seriously prejudice the interest of the appellants including coheirs.
6. I have heard Shri Nigel Costa Frias, learned Counsel for the appellants.
7. The learned Counsel for the appellants has rightly raised grounds in the memo of appeal, more particularly, the fact that the respondent who has been proved to be a permanent resident of Portugal would not be in a position to effectively perform his duties of administration of the assets of the deceased in the capacity as Cabeca de Casal which would indeed seriously prejudice the interest not only of the appellants but also of the co-heirs. The learned Trial Court has failed to hold proper inquiry in the light of the Article 2070 of the PCC which provides that the assets of the deceased have to be administered by those heirs who are in possession of the said property.
8. Since the appellants have been maintaining the properties left by the deceased being beneficiary heirs and who are in effective possession ought to have been taken into consideration by conducting a due inquiry to that effect.
9. The learned counsel has drawn my attention to an oral order dated 1.12.2011 passed by this Court (Coram: F. M. Reis,J) in Appeal from Order No.46/2011 (Maria Sales e Dias Vs Mr. Orlando Fatima Sales). So far as the possession of the appellants in respect of the properties of the estate leaver is concerned, the learned Judge ought to have held an inquiry to decide as regard the possession of the properties of the estate leaver and whether the appellants are entitled in law to be appointed as Cabeca de Casal on the basis of the such alleged possession. No doubt, the appellants would have to establish the lawful possession. The ratio laid down in said judgment would be squarely applicable to the present set of facts. It appears that the learned Judge has failed to exercise its jurisdiction in arriving at a proper conclusion. The impugned order, therefore, deserves to be quashed and set aside. The learned Judge is directed to decide the claim of the appellants in the light of the observations made herein above as to whether appellant no.1 could be appointed as Cabeca de Casal in terms of Article 2070 of the PCC. As such, I pass the following:-
ORDER
i. The appeal is partly allowed.
ii. The impugned order dated 12.09.2013 is quashed
and set aside.
iii. The learned Judge shall decide claim of the
appellants as regards removal of a Cabeca de Casal
from the post of the administrator and appointment
of appellant no.1 as new a Cabeca de Casal in terms
of Article 2070 of the PCC after holding due inquiry
and hearing all the parties in accordance with law.
iv. Appeal stands disposed of accordingly with no order
as to costs.
