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Judgment
A.P. Lavande, J.—Heard Mr. D'' Silva, learned Counsel for the Petitioner and Mr. Naik, learned Counsel for the Respondents.
Rule. By consent of the learned Counsel heard forthwith.
By this petition under Article 227 of the Constitution of India, the Petitioner challenges order dated 16/10/2010 passed by the Adhoc District Judge-I, Fast Track Court at Panaji in Miscellaneous Civil Appeal No. 164/2010 allowing the appeal preferred against the order dated 24/6/2010 passed in Inventory Proceedings No. 54/2008/B by the learned Civil Judge, Senior Division, Panaji.
The Respondent No. 1 initiated Inventory Proceedings No. 54/2008/B before the Civil Judge, Senior Division at Panaji upon the death of her mother. The Petitioner who is the brother of the Respondents filed objections purporting to be under Article 1374 of the Portuguese Civil Code on the ground that inventory proceedings were not maintainable since the parties were Muslims and natives of Karnataka and governed by their personal laws. The learned Trial Judge by order dated 24/6/2010 upheld the objections after placing reliance upon several provisions of law. Against the said order, the Respondents herein preferred appeal before the District Court which was made over to the Adhoc District Judge-I, Fast Track Court, Panaji.
The lower Appellate Court placing reliance upon the judgment of this Court in the case of Smt. Maria Luiza Valentina Pereira and Anr. v. Shri Jose Paulo Coutinho and Ors. 2010 (1) Goa L.R. 355 held that the since the property is situated in Goa, the inventory proceedings were maintainable.
Having heard learned Counsel for the parties and having perused the record, I am of the considered opinion that the impugned order cannot be sustained in law in as much as in the case of Maria Luiza Valentina Pereira, the parties were admittedly Goans and governed by Goan laws and as such inventory proceedings were initiated in Goa. In the said case the learned Single Judge of this Court has held that only immovable property situated in the State would be governed by Code of 1867. It is pertinent to note that in the said case the issue of maintainability of the inventory proceedings was not the issue. This being the position, the Lower Appellate Court has clearly erred in disposing of the appeal on the sole ground that the inventory proceedings were maintainable since the property is situated in Goa. The lower Appellate Court has not dealt with the findings given by the Trial Court after placing reliance upon several provisions of law to hold that the inventory proceedings were not maintainable.
In view of the above discussion, the judgment and order dated 16/10/2010 passed by the Adhoc District Judge-I is un-sustainable in law. The lower Appellate Court was bound to consider all the contentions advanced by the Trial Court and deal with the reasons given by the Trial Court to hold that the inventory proceedings were not maintainable. This exercise has admittedly not been done by the Lower Appellate Court.
For the reasons aforesaid, the judgment and order dated 16/10/2010 passed by the lower Appellate Court is quashed and set aside. The lower Appellate Court to decide the appeal afresh after giving opportunity of being heard to both the sides. Needless to mention that I have not expressed any opinion on the merits of the rival claims. All other contentions of the rival parties are kept open.
The parties either personally or through their advocates to appear before the lower Appellate Court on 1st August, 2011 at 10 a.m. The lower Appellate Court shall dispose of the appeal in accordance with law.
The petition stands disposed of accordingly with no order as to costs.