@JUDGMENTTAG-ORDER
F.M. Reis, J
1. Heard Shri S. Usgoankar, learned Counsel appearing for the appellant and Shri F. E. Noronha, learned Counsel appearing for the respondent. The above appeal challenges the judgment and the respondent came to be partly decreed and the appellant was directed to pay Rs.1,75,472.16 together with interest thereon at the rate of 12% per annum from 02.05.1992 till the date of actual payment.
2. The respondent filed the suit on the ground that the appellant and the respondent are the sons of late Mr. Vicente Salvador Colaco and Mrs. Clarina Dias and that upon their death the inventory proceedings bearing No. 90/78 were instituted in the Court of learned Civil Judge Senior Judge, Panaji. It is further his case that the appellant has been appointed as Cabeca de casal in the said proceedings. It is further contention of the respondent that the rented premises which are occupied by the said deceased came to be demolished by the landlord and the multistoreyed building has been constructed thereon. In order to protect the tenancy right of the deceased over the said premises, a litigation ensued between the successors of original tenant and the landlord which resulted in an amicable settlement which was filed in Writ Petition Nos. 44/91 and 98/91 before this Court. In terms of the said settlement, the successors of the original tenant were paid a sum of Rs.10,00,000/-. Accordingly, the appellant received a total sum of Rs.10,00,000/- along with interest of Rs.52,833/- from the said landlord which was payable to the successors of the original tenant which included the appellant and respondent and other heirs. It was further the case of the respondent that the share of the respondent in the said amount was a sum of Rs.1,75,472.16. It was further contended by the respondent that on 07.02.1992, the appellant had paid to the other heirs their shares in the said amount. Accordingly, the suit came to be filed praying inter-alia for the recovery of sum of Rs.2,00,319.00 along with interest at the rate of 18% per annum from the date of filing of the suit till payment.
3. The appellant filed his written statement and disputed that the deceased has left two houses. The fact that the deceased was residing in the rented house was not disputed by the appellant. So also the receipt of the said amount along with interest was not disputed but it was alleged that the share of the respondent could not be paid as his liabilities towards the estate of the deceased parents are more than his share in the said amount. The fact that remaining heirs had been paid with regard to their shares has also been admitted at para 26 of the written statement. It was further alleged that the appellant had incurred expenses to clear off the liabilities towards the estate of the deceased parents and paid loans and litigation expenses which are to be recovered from the said amount. The appellant also prayed for set off against the amount payable to the appellant by the respondent directing the amount be paid to the appellant after deducting the amount etc., which is valued at Rs.2,26,100/-.
4. After framing of issues and recording of evidence, the learned Civil Judge Senior Division, Panaji, by judgment and decree dated 28.2.2008 partly decreed the suit and directed the appellant to pay to the respondent a sum of Rs.1,75,472.16 with interest thereon at the rate of 12% per annum from 02.05.1992 till the date of actual payment. While disposing of the said suit, the learned Judge has come to the conclusion that the appellant had failed to prove that the respondent owed a sum of Rs.2,26,100/- by way of mesne profit with respect to the portion of the house. The learned Judge also found that the appellant has failed to prove that the respondent was not entitled to claim his share in the said amount of Rs.10,52,833/-. The claim of set off put forward by the appellant was also rejected. The learned Judge further held that the respondent is entitled for the said amount as decreed by judgment and decree dated 28.2.2008. Being aggrieved by the said judgment and decree, the appellant preferred Regular Civil Appeal No. 52/2010 before the Ad-hoc District Judge, North Goa, Panaji, which appeal by judgment dated 20.4.2011 came to be dismissed. Accordingly, the learned Appellant Court on appreciating the evidence on record has come to the conclusion that the appellant has failed to establish his claim of Rs.2,26,100/- as being payable by the respondent. The learned Appellate Court has appreciated the evidence on record and found that the respondent has not been paid his share in the said amount nor his amount has been deposited in the inventory Court. The learned Judge came to the conclusion that the learned Trial Judge has rightly decreed the suit and as such no interference is called for in the impugned judgment.
5. Shri S. Usgaonkar, learned Counsel appearing for the appellant has assailed the impugned judgment essentially on three grounds. It is pointed out that the amount has been received by the appellant on the basis that he was Cabeca de Casal appointed in the inventory proceedings which are pending before the Civil Judge Senior Division, Panaji, to distribute their shares left behind by the parents of the appellant and respondent and other siblings. The learned Counsel as such submitted that unless and until the said inventory proceedings are finally adjudicated, the question of distributing the amount received by the appellant would not arise at all. The learned Counsel further pointed out that there are liabilities of the estate which have been paid by the Cabeca de Casal. He further submitted that on that count the appellant is entitled for a set off to the extent of the share of the respondent. The learned Counsel further pointed out that unless and until the debts are finally adjudicated before the inventory Court, the question of effecting any payment to the respondent would not arise at all. The learned Counsel further pointed out that the appellant is not liable to pay any interest as directed by the Courts below as according to him the amount has been received as the Cabeca de Casal appointed in the inventory proceedings. The learned Counsel as such pointed out that there are substantial questions of law which have to be adjudicated by this Court and prays that the appeal may be taken up for final hearing.
6. On the other hand, Shri F. E. Noronha, learned Counsel appearing for the respondent has pointed out that there are no substantial questions of law which arise for any adjudication by this Court u/s 100 of C.P.C. The learned Counsel further pointed out that the amount has been received by the appellant as Cabeca de casal and as such all the interested parties including the respondent are entitled for their shares in the said amount. With regard to the contention of Shri Usgaonkar, learned Counsel appearing for the appellant to the effect that there are some debts which have been paid by the cabeca de casal, the learned Counsel appearing for the respondent has stated that there has to be a final adjudication with regard to the actual amount of the liabilities alleged to have been paid by the cabeca de casal. He however pointed out that in any event, in case the respondent is liable to pay any amount after the final adjudication of the said proceedings, the respondent would to pay such amount with interest as directed. The learned Counsel as such submitted that there is no case made out for interference in the above appeal as the alleged substantial question of law do not at all arise in the present appeal.
7. Having heard the learned Counsel for the parties and
on perusal of records, I find that the following undisputed facts arise from the records which are as follows :
(i). The appellant was appointed as Cabeca de casal in inventory proceedings initiated upon the death of the parents of the appellant and respondent.
(ii). In the course of the said inventory proceedings, the appellant has received a sum of Rs.10,52,833/- as cabeca de casal as an asset of the estate of the said deceased.
(iii). The remaining interested parties have received the amount from the appellant attributed to their shares in the estate and only the respondent remains to be paid his share.
(iv). One of the sisters namely Filomena had relinquished her right in the estate of the parents. As such, her right is to be shared by all the remaining interested parties including the appellant and respondent.
(v). In view of the relinquishment, the respondent is entitled to 1/6th share of the said amount received by the appellant.
(vi). The inventory proceedings initiated upon the death of the said deceased are still pending before the Court of Civil Judge Senior Division, Panaji.
8. On the basis of the said admitted fact, I find that the
Courts below have rightly appreciated the evidence on record and have come to the conclusion that the respondent is entitled for the amount as decreed. The learned Judge has noted that besides the respondent, other interested parties had received the amount payable to each of them. The Courts below have noted that as far as debts are concerned, such amount can be received by the appellant in the inventory proceedings in case the said debts are finally adjudicated to have been paid by the cabeca de casal as claimed by him.
9. Considering the statement of Shri F. E. Noronha to the effect that the respondent would pay his share of the debt in case his claim is finally adjudicated for any amount in the inventory proceedings and such amount would be refunded with interest as directed by the inventory Court which statement is made upon instructions of the respondent and accepted by this Court, the apprehension of the appellant that he would not be in a position to receive any amount from the respondent in case such debts are adjudicated in his favour in the inventory proceedings does not survive.
10. The substantial question of law framed by the appellant would not arise in the present appeal. There is no bar in law for a co-heir to claim his share in the said compensation which is received by the cabesa de casal when admittedly the other interested parties have been paid their shares. The cabeca de casal cannot retain the share of the respondent on the specious ground that the debts have not been confirmed when two Courts below have concurrently come to the conclusion that the alleged claim put forward by the appellant have not been proved.
11. With regard to the payment of interest, the learned Courts below have found that the other interested parties have also been paid by the appellant with interest at the rate of 12%. As such, there is no reason to award any other interest in favour of the respondent. Reliance under Article 2086 of the Portuguese Civil Code is misplaced as in the present case admittedly despite of demand made by the respondent, the appellant has defaulted in payment of the amount. In any event, it was incumbent upon the appellant to deposit the amount received in the Court and it would have been invested so that interest would have accrued thereon. Having retained the amount without any justification, the respondent is entitled for the interest as decreed by the Courts below.
12. The Courts below have rightly appreciated the respondent is entitled for the amount as decreed. Shri S. Usgaonkar, the learned Counsel appearing for the appellant was unable to point out any perversity in the said findings nor any piece of evidence has been considered by the Courts below whilst passing the impugned judgment.
13. Considering the overall facts and circumstances of the case, I find that there are no substantial questions of law which arise in the present appeal. As such, the Second Appeal stands summarily dismissed.
14. At this stage, learned Counsel for both the parties state that inventory proceedings No. 90/78/A is pending before the Civil Judge Senior Division, Panaji and a direction be issued for its expeditious disposal. Considering the facts and circumstances of the case, as it is reported that the interested parties are senior citizens, the learned Civil Judge Senior Division, Panaji is directed to dispose of the inventory proceedings No. 90/78/A as expeditiously as possible, preferably within one year.
