Prabhakar Gones Prabhu Navelkar (Dead) Through Lrs & Ors vs Saradchandra Suria Prabhu Navelkar(Dead) Through Lrs. & Ors

The case set up by appellants in short is as follows. There exist two properties known as “Mallons†(hereinafter referred to as “Mâ€) an

“Bainguinim†(hereinafter referred to as “Bâ€) situated in the village of Bainguinim in Goa. The properties lie adjoining to each other. M i

admeasuring 90 hectares (approximately). B admeasures 31 hectares (approximately). Together they constitute the plaint schedule properties. By a deed

of gift, dated 09.03.1913, Venctexa gifted half of the property of M to his grandsons, namely, Suriaji and Gones. In the inventory proceedings, held upon

the demise of Padmavati, wife of Venctexa, the remaining half of the property of M and the entire property of B was allotted to their daughter named

Piru. In the year 1915, Piru along with her husband, by a deed of sale dated 17.11.1915, sold in equal parts the remaining half in the property M and the

entire property B to Suriaji and Laxmi. This meant 1/4th right in property ‘M’ and 1/2 right of ‘B’ was sold to Suriaji. Later on a deed style

as a deed of dissolution of accounts, payments and obligation came to be executed on 21.01.1919. In the said deed Suriaji and Gones appeared as parties

on the one side representing the Venctexa branch and other branch of Vitol came to be represented by his wife Laxmi along with her four sons. In the

said deed dated 21.01.1919 Suriaji admitted that the purchase of 1/4th in the property of M and half of property B by the sale deed dated 17.11.1915 was

for self and for his brother Gones who paid half the price. Therefore, Suriaji and his wife Shantibai undertook to effect the transfer of registration in th

name of Gones, half of the property purchased in his name at all time if so desired. Gones was on the occasion of transfer to make reimbursement of the

half of money paid by Suriaji to Laxmi towards the dowry account to his wife. In the year 1925 Suriaji and his wife Santibai gifted in favour of Gones th

1/4th of property M acquired by Suriaji from his grandfather under the gift deed dated 09.03.1913. Therefore, Gones became entitled to 1/8th of th

property M and 1/4th of the property B as a result of purchase made under deed of sale dated 17.11.1915. The further case of the plaintiffs is that half

share of Gones in property M came to be sold in public auction in execution proceedings against Gones. Despite the dissolution of the Hindu undivide

family of Navelkars, the two branches continued to live in their own ancestral house under the same roof. Annual income from the property in or about

1940 hardly exceeded Rs. 1000/-. The families of Gones and his brother Suriaji always lived continuously together. In 1949 Gones proceeded to Dama

on account of his employment. He used to get his share from the suit property until his death which took place in December 1978. After death of Gones

plaintiffs were not given their share. Plaintiffs found that their names were not included in the Survey records. They made an application to the survey

authorities. They came to know somewhere in 1983 that one or two junior members of the Navelkar’s family are making preparations to dispose of

some portion of the suit property. There is reference to proclamation of sale by the Assistant Registrar informing bidders in respect of portion of suit

properties. They came to know for the first time about the partition deed dated 13.03.1969 and found that the plaintiffs and other co-owners are excluded.

Accordingly, they filed a suit for following relief:

deed. The suit properties were enjoyed jointly at least until the deed of partition 1969. The deed of partition was not entered into with the plaintiffs and

defendants no. 28 and 29 who were cousins. Therefore, it was found to be null and void.â€​

In the case law relied upon by the appellants, in Md. Mohammad Ali (dead) by Lrs. v. Jagadish Kalita and others (2004) 1 SCC 271, this Court,

dealing with Article 65 of The Limitation Act, 1963 has essentially reiterated the principle that long and continuous possession by itself would no

constitute adverse possession. Non- participation in the rents and profits of the land to co-owner does not amount to ouster. Furthermore, this Court has

noted that in a suit governed by Article 65 of the Act, if the plaintiff succeeds in proving his title, it is no longer necessary to prove that he was in

possession within 12 years of the filing of the suit. It is for the defendant to prove animus possidendi.

Mutation in the name of elder brother, for the collection of rent and revenue, does not prove hostile title as against other. It was further held that where

possession can be referred to lawful title, it would not be decided to be adverse.

objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-

objection is spelled out by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any

finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended

CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal disabled the respondent to question the correctness o

otherwise of any finding recorded against the respondent.â€​

It is their case that the suit being one for declaration of title also, the suit is clearly barred as the right to sue first accrued in 1925.

Lastly, it is contended that the Court may take notice of the law laid down by this Court in Taherakhatoon (D) by Lrs. v. Salambin Mohammad (1999)

2 SCC 635 and refuse to exercise discretion in favour of the appellants, having regard to the various facts, the long lapse of time, after the documents of

the year 1913,1915, 1919, 1925, and the developments which have taken place in the meantime.

The first question we must pose and consider is what exactly is the property which is involved in the litigation.

As we have noticed in the beginning of our judgment, property ‘M’ consisted of about 90 hectares whereas property ‘B’ consisted of

about 31 hectares. By the Gift Deed of 1913, the grandfather of Suriaji and Gones had gifted one-half right in property ‘M’ to both Suriaji and

Gones. Thereafter, the one-half share in property ‘M’ and the whole of property ‘B’ came to vest with the aunt (father’s sister) of

Suriaji and Gones. It is in 1915 that the aunt along with her husband executed the sale deed conveying the rights to Suriaji and to the other branch, viz.,

Vitol. Thereafter, in 1919, the deed of dissolution, which is the sheet anchor of the appellant’s case came to be executed. It is thereunder that

acknowledgment of title, as contended by the appellants, of Gones over the property, which his subject matter of the sale in favour of Suriaji, is made.

Still further, in 1925, Suriaji along with wife, executed a Gift Deed. Under the same, the donors have gifted the rights obtained by Suriaji under the Gift

Deed executed in his favour under the document of 1913 by his grandfather. There is no dispute that in 1937 the rights of Gones as acquired under the

Gift Deed executed in his favour by his grandfather in 1913 and also the property acquired by him under the Gift Deed by his brother and sister-in-law in

1925 came to be sold in auction in execution of decree obtained against Gones. The present suit is filed based on the sale deed executed by the paternal

aunt of Gones and her husband expressly in favour of Suriaji and his wife and the other branch. The appellants claim one-eighth share being one-half of

one-fourth of property ‘M’ conveyed under a sale deed to Suriaji and his wife. The appellants also claim one-fourth share being one-half of one-

half in property ‘B’ conveyed to Suriaji and his wife under the sale deed of 1915.

PRESCRIPTION UNDER THE PORTUGUESE CIVIL CODE

Undoubtedly, the properties being located within the present Union territory was governed by the Portuguese till 20.12.1961. On 20.12.1961, the

territories of Goa, Daman and Diu were included as Union territories. Article 505 relied upon by the respondents defines prescription.

“Article 505 â€" Things and rights are acquired by virtue of possession, just as obligations are extinguished by the fact of not demanding their

fulfilment. The law lays down conditions and the period of time, that is necessary, for one, as well as for the other. This is called prescription.

Sole Paragraph: The acquisition of things or rights by possession is known as positive prescription; the discharge of obligations by reason of not

demanding their fulfilment is known as negative prescription.â€​

Article 535 is also relied upon by the contesting respondents. The same reads as follows:

Article 535 -Whoever has incurred in an obligation, or to do something to another, stands relieved of the obligation, if its performance is not demanded for

a period of 20 years, and the obligant is in good faith, at the end of the prescription period, or when the performance is not demanded for a period of 30

years, regardless of good faith or bad faith, except where special prescription are provided in law.

Sole paragraph: Good faith in the case of negative prescription consists in the ignorance of the obligation. This ignorance is not to be presumed in case of

persons who originally contracted the obligation.â€​

A Bench of three learned Judges in Syndicate Bank vs. Prabha D. Naik 2001 (4) SCC 71 3had occasion to consider the Portuguese Civil Code. In

the said case the appellant Syndicate Bank instituted a special suit for recovery of money advanced. The loan was granted in July 1978. The respondents

agreed to pay the amount by December, 1978. Loan was granted on execution of promissory note and a deed of hypothecation. Plea of bar of limitation

was raised as suit was filed in 1985. The appellant thereupon relied upon Article 535 which we have adverted to above. It was contended by the

appellant Bank that the law of limitation in Goa was to be treated as the law under Portuguese Civil Code. Therefore, the period of limitation as

prescribed under the Schedule I of the Indian Limitation Act would not apply. This Court referred to Section 5 of the Goa, Daman and Diu

(Administration) Act, 1962 which contemplated continuance of laws in force before the appointed day in Goa, Daman and Diu or any part thereof until

amended or repealed by a competent legislature or other competent authority. It is relevant to refer to para 13, 14 and 16, the same reads as under:

“13. Admittedly, the Portuguese Civil Code continued in the Union Territory of Goa, Daman and Diu by virtue of Section 5 of the Goa, Daman and

Diu (Administration) Act, 1962 which provides that the existing laws shall be continued in force in the Union Territory until amended or repealed by a

competent legislature. We may also note Regulation 12 of 1962 which provides for extension of certain laws mentioned in the Schedule to the Regulation,

to wit: The Negotiable Instruments Act, 1881 and the same was brought into effect in the Union Territory of Goa, Daman and Diu with effect from 1-12-

1965. In Goa, Daman and Diu (Laws) (No. 2) Regulation, 1963 (Regulation 11 of 1963), provisions akin to those contained in Regulation 12 are found

under which the Indian Contract Act, Sale of Goods Act and Transfer of Property Act were brought into force in the Union Territory from 1-11-1965

and 1-12-1965 respectively. The situation thus emerges having regard to the two regulations noticed hereinbefore (Regulation 11 and Regulation 12) that

both the Negotiable Instruments Act and the Contract Act together with some other statutes have been made applicable to the State by appropriate

legislative authority. The promissory note signed by Respondent 1 herein and the guarantor issuing a guarantee thereof cannot but be termed to be the

subject within the meaning of the Negotiable Instruments Act. In any event, and obviously on the factual score, there was also existing a deed of

hypothecation which cannot also but be termed to be a contract within the meaning of the Indian Contract Act which stands applied in the State of Goa,

Daman and Diu. It is, therefore, to be seen as to whether specific legislations containing the subjects under which the cause of action had arisen, would

govern the field or the procedural law assuming it would have its due application in replacement of the governing statute. This however, involves a wider

debate and this Bench has not been called upon to answer the same, as such we refrain ourselves from expressing any opinion in regard thereto but the

fact remains that both the Negotiable Instruments Act and the Contract Act have been included in terms of the Regulations noticed above and as such,

made applicable in the State of Goa, Daman and Diu.

Be it noted that Article 535 containing the provisions of limitation in Chapter III regulating the contracts in the Portuguese Civil Code, which however

stands replaced by the Indian Contract Act. The prescribed period for limitation pertaining to the contracts being in the same Chapter under the Contract

Act cannot be said to be surviving as an independent provision rather than going along with the other provisions of the contract which by reason of

adaptation of the Contract Act stand replaced. It thus cannot but be said to be an implied repeal. The necessity of having an express repeal was never

felt by reason of the factum of adaptation of the Indian Contract Act insofar as Chapter III is concerned. Either the Chapter survives in its entirety or it

perishes in all its spheres â€" it is one Chapter dealing with contract and prescribes the period of enforcement of the same, no dissection is possible.

According to the respondents the following is interpretation to be placed on the same. A document was executed for settlement of accounts of

sociedade between the vitol and the venctexa branches of the Navelkar family. Breaking down the controversial clause(See para 47), it is the contention

of the respondents that it was Suriaji who has actually paid for the purchase of the property in question. In this regard reliance is placed on the

expressions ‘he/his and himself’. Except for the use of the word ‘he’ in the underlined portion it is their case that the words ‘he, his and

himself’ have been used to refer to Suriaji. It is only the word ‘he’ which is underlined that has been used to refer to Gones. The case is tha

the documents were drawn in Portuguese and there was lack of clarity in translations. It is further contended that the Gones was a minor when the

property was purchased and he started earning only in 1925 which is admitted by PW1 when he stated that Gones was Puberto in 1919 and he starte

earning after 1925. They have a definite case that the civil law system prevalent in Goa till 19th December, 1961 when it became an Union territory did

not recognize equitable title and unless a proper document of transfer was executed Gones could not derive any title. It is their further case that the deed

dated 21.1.1919 was at best in the nature of an agreement to sell. Such a promise to sell is governed by Article 1548 of the Civil Code. Article 1548 o

the Civil Code is as follows:

The document dated 21.1.2019 is described as a deed of declaration, fixation of balance of accounts, payment and obligation. Parties of the first part are

described as Suriaji and his wife Shantibai aged 15 and minor aged 16. Gones is shown as aged 14 years assisted by his mother. Parties on the second

part are described as Laxmi, widow of vitol (the other party) and her sons etc. The deed appears to provide for distribution of joint family and for

settlement of accounts of the family which lasted only 3 years. It is inter alia stated further that the parties of the first part owed to the parties to the

second part a sum of Rs.2000/-. It is inter alia stated therein that parties of the first part Suriaji stated that the purchase made by him by the sale deed

dated 17.11.1915 was made for himself and for the party of the first part Gones, his brother and that he has paid for half of the price of the said purchase,

therefore he undertakes alongwith the said Shantibai to transfer in the name of said Gones the half of the properties purchased in his name by the

aforesaid deed at any time he may desire, to have it transferred and on the occasion of this transfer, the said Gones will have to indemnify him with half

of the amount which has now been paid to the party of the second part Laxmi from the money of the dowry of his wife. It is the aforesaid provision

which is at the heart of the controversy. We are to unravel its true scope and import. Whether it amounts to an admission or acknowledgment by Suriaji

that Gones his younger brother, had half right over the property acquired by Suriaji under the sale deed dated 17.11.1915? Whether on the other hand, the

document is of executory nature and contemplating Suriaji executing a transfer in favour of Gones? Whether it contemplated only a transfer of mutation

the title being admitted? Whether the clause contemplated a transfer on the occasion of which Gones was to indemnify Suriaji, half the amount which

stood paid to Laxmi that money coming from dowry of Suriaji’s wife?

dissolution dated 21.1.1919 we fail to see how when complying with the condition for seeking transfer it could be maintained by them that they are

entitled without anything more to rights as co-owners. In fact, there is no case that the appellants have paid or offered the amount to the successors-in-

interest of Suriaji. As already noticed, PW 1 goes to the extent of deposing that the ‘obligation to reimburse Suriaji did not devolve upon the heirs o

Gones’. Thus the suit is filed with neither Gones nor even the appellants paying or even offering to pay the sum mentioned in the deed of 1919.

In law, how can Gones claim to be a co-owner? He must first become an owner. Section 82 of the Trust Act recognized that when a person

transferred property to another for consideration, which is paid by a third party then the said person would be the beneficial owner. The transferee in

name or Benamidar would hold the property in trust for the person who has actually provided consideration. There is, we reiterate no case based on

benami ever set up by the appellant.

Therefore, we would come to the conclusion that by sale deed of 1915 and the settlement deed of 1919 it may not be safe to conclude that Gones

acquired title as such in the plaint schedule property. In the light of this, we need not render any finding as regards adverse possession or ouster.

It is worthwhile to note that after dissolution deed dated 21.1.1919 there took place, another development in the form of execution of gift deed by

Suriaji in the year 1925. The case which the defendants had set up about gift deed include the allegation which tends to question the circumstances

surrounding the execution of the gift deed. They have a case also that the gift deed was executed pursuant to the acknowledgment in the 1919 document.

Before this Court respondents would seek to take advantage of it inasmuch as the contention is taken that the gift deed must be treated as executed in

fulfilment of acknowledgment in the dissolution deed dated 21.1.1919. Under the gift deed of 1925 Suriaji has gifted Gones his ¼ right in property

‘M’ which he acquired under the gift deed executed by his grandfather in the year 1913. Be it remembered that in 1913, the grandfather has also

executed gift of another ¼ of property ‘M’ in favour of Gones. Property ‘M’ consisted of roughly 90 hectares. Thus, under both the gift

deeds together 1/2 of property ‘M’ or 45 hectares approximately came to be vested with Gones in the year 1925. Suriaji passed away in the year

1925 after the gift. It is thereafter that inventory proceedings took place in regard to the properties of Suriaji under the Portuguese Civil Code. Gones

stood as vogal apparently on behalf of the minor children of Suriaji under the Portugues Civil Code. The documentary evidence is found by the first

appellate Court to establish that ¼ of property ‘M’ and ½ of property ‘B’ stood allotted in the name of Shantibai, the widow of the

Suriaji. This is borne out by the inscription which we have referred to of the year 1937. It is here that the question arises as to correctness of the findings

that having participated in the inventory proceedings which culminated in the property being allotted to the Shantibai, the rights of Gones stood

extinguished.

We will proceed on the basis that interpretation of clause of the dissolution deed leads us to hold that Gones having paid ½ of the purchase price

what is contemplated by the undertaking was that Suriaji and his wife Shantibai were to transfer the mutation. Gones acquired title in the property. We

proceed further on the basis that payment of Rs.1000/-was not a condition precedent as found by the High Court. The question is whether the High Court

is right in its findings based on no objections being taken to the property being allotted to Shantibai. We have already extracted the findings of the first

appellate Court in this regard. We may at this juncture consider the contentions based on inventory proceedings held upon the death of Suriaji.

INVENTORY PROCEEDINGS

According to the appellants, inventory proceedings arise out of the inheritance by partition among the heirs of the deceased person. It is treated as a

deed of partition and requires registration under Section 45 of the Registration Act but it is not registered under Section 17 of the Registration Act, 1908.

The burden of proving the case based on inventory proceedings was squarely on the defendants which they have failed to discharge. No details of the

precise date in 1925 or of the time and place where the proceedings took place has ever been established. There is no evidence adduced by the

defendants. The inventory proceeding itself is not produced. The defendants’ witness was 36 years old on the date of evidence and was, therefore,

not alive in 1925. Defendant No. 5 who was alive at the time when alleged inventory proceedings took place was not examined. Punit Rai v. Dinesh

Chaudhary2003 (8) SCC 204, is relied upon apparently to contend that the evidence of Defendant No. 5, was not adduced and it would mean that had the

evidence been produced, it would not have supported the case of the defendants. It is sought to be contended that, that Gones has intervened as vogal, is

not substantiated. In fact, in this context, reliance is also placed in P. John Chandy and Co., (supra) in regard to inaction is concerned. It is also contended

that without prejudice to the aforesaid contention, since Ganesh held property jointly with his sister-in-law, she could not have inherited more than what

Suriaji possessed. In regard to the enrolment dated 09.10.1937, it is stated to be wrongly construed as being registration of the inventory proceedings. It is

mere a typed document without signature. The property does not pass and the inventory could not have been received in evidence.

Per contra, the contesting defendants would point to the evidence of PW-1 himself that Gones was a member of the family council in the inventory

proceedings on the demise of Suriaji which is gathered from his records. Reliance is placed in Sheela Rodrigues vs. Lourenchinha Ana D’Cruz

Rodrigues Fernandes 1999 SCC Online Bom 109 paras 8-11which has recognized that the proceedings were in the nature of declaration of ownership

rights to the estate of the deceased. The declaration is like a judgment in rem and therefore, it was all the more necessary for Gones to object at the given

time, which he admittedly did not. Inventory proceedings are inevitable under Article 156, Article 2064, upon the opening of the inheritance. By virtue of

marriage, the doctrine of communion applies and Shantibai was owner of 50% of all properties of Suriaji and the inheritance was related to the balance

50%. The Family Council is composed to protect the interests of the minors, and was constituted under Article 207. Article 218 prevents any member of

the family council from voting or assisting where there is a conflict of interest. Thus, if Gones had ever considered as having title to half of the properties

purchased by Suriaji under Sale Deed, it would involve conflict of interest. In the event of any third party having a right of properties. Article 2078,

provides listing of such properties separately and the same reads as follows:-

“Article 2078 â€" Where there are, in the inheritance some properties belonging to a third person or which devolve to any heir in preferential manner,

they shall be listed separately, alongwith the respective documents.

Sole paragraph : The properties belonging to a third person shall not be delivered to him when there are some doubts, unless the said third person proves

his right.“

Gones would never have silently stood by and allowed the property to be listed as property of Suriaji and he would have claimed the property to be listed

separately as belonging to a third party, it is contended.

Relying on Dilboo (Smt.)(Dead) by Lrs. and others v. Dhanraji (Smt.)(Dead) and others2000 (7) SCC 70,2 it is contended that where there is a

registration, there is deemed knowledge and the limitation runs from the said date. Gones would have objected to the inscription in 1937. He lost right over

half of Mollans which was sold in a public auction. The properties have to be appraised for licitation and partition as provided under sub-division V of

Article 2126 onwards of the Civil Code.

There would be an appraisal in the case of inventory between majors and minors which was the case when Suriaji died. The appraiser is appointed

under Article 2091 by the Family Council [of which Gones was a member].

In Damodar Ramnath Alve v. Gokuldas Ramnath Alve and others MANU/MH/0535/1996, relied upon by the appellants, the learned Judge of the

High Court of Bombay, Panaji notes that in inventory proceedings there is no decree passed as in a suit. In Zacarias Durate Domingos Pereira v. Camilo

Inacio Pereira1990 (1) Goa LT 174, Justice M.D. Ka- math had this to say about nature of inventory pro- ceedings:

“21.The position is different when the interest is executed and the man has a vested interest in the right, that is to say, when he is the legal owner of

the shares with the legal title to them residing in him. This legal title can only be destroyed in certain specified ways. It is in my view fundamental that the

legal title to property, whether moveable or immovable, cannot pass from one person to another except in legally recognised ways, and normally by the

observance of certain recognised forms. Confining myself to the present case, one of the ways in which the title to shares can pass is by forfeiture; but in

that case an exact procedure has to be followed. A second way is by transfer which imports agreement. There again there is a regular form of procedure

which must be gone through. A third is by estoppel, though, when the position is analysed, it will be found that it is not the estoppel as such which brings

about the change. The expressions abandonment, waiver and so forth, when used in a case like the present, are only synonyms for estoppel and despite

hallowed usage to the contrary, I prefer to call a spade a spade and put the matter in its proper legal pigeon hole and call it by its proper legal name.

These other terms are, in my view, loose and inaccurate and tend to confuse, when applied to cases of the present nature.

entire right belonging to Suriaji and Gones stood allotted to Shantibai, Shantibai would continue to remain liable as a trustee.

general and was not confined merely to criminal cases, and that (see para 9), the wide discretionary power with which the Court was concerned was

applicable to all types of cases. The power under Article 136 according to this Court, “is to be exercised sparingly and in exceptional cases only, and

as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it

under this article. By virtue of this article, we can grant special leave in civil cases, in criminal cases, in income tax cases, in cases which come up before

different kinds of tribunals and in a variety of other casesâ€​.