IN THE SUPREME COURT OF INDIA

(Order XVI Rule 4(1) (a))

CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION
[Under Article 136 of the Constitution of
India]
S.L.P. (Civil) No of 2014
(Arising out of the impugned final Order and
judgment dated 20
th
March 2014 passed by the
Honble High Court of Bombay at Goa, in Civil
Application Review No.11 of 2014 which was
filed for review of the final judgment/order of
Second Appeal in Second Appeal No.24 of 2012
passed by the High Court)
IN THE MATTER OF :-
Smt.Vijaya Gajanan Naik Petitioner
Versus
Shri. Suresh Basu Naik & Ors. Respondents
With
I. A. No.________ of 2014
Application to permit the Power of Attorney
Holder to appear in person before the Honble
Supreme court.
PAPER BOOK
[FOR INDEX PLEASE SEE INSIDE]
PETITIONER IN PERSON:Smt.Vijaya Gajanan Naik
INDEX
SL.NO. PARTICULARS PAGE NO.
1. Office Report on Limitation A
2. Listing Proforma A1-A2
3. Synopsis and List of Dates B - R
4. Certified Copy of the Impugned 1 - 3
Order dated 20
th
March 2014
passed by Honble Single
judge of the High Court in
Civil Application (review) No.
11/2014.
5. Special Leave Petition with 4-63
Affidavit
6. Annexure P/1 : 64-85
A copy of the Memo/pleadings of
the Review Application filed
before the High Court in Civil
Application (review) No. 11 Of
2014 filed on 27/8/2013.
7. Annexure P/2 : 86-87
A copy of the Order dated 28
th
February 2014 passed by
Honble Single judge of the
High Court in Miscellaneous
Civil Application No. 813 of
2013 (application for
condonation of delay).
8. Annexure P/3 : 88-98
A copy of the Memo/pleadings
(for condonation of Delay)
filed before the High Court in
Miscellaneous Civil
Application No. 813 OF 2013,
filed on 27/8/2013.
9. Annexure P/4: 99-111
A copy of the Order/final
Judgment dated 21st June 2012
passed by Honble judge of the
High Court in Second Appeal
No.24 of 2012.
10. Annexure P/5: 112-135
A copy of the Order dated 9
th
December 2011 passed by
Honble judge of the High
Court in Second Appeal no.3 of
2006 titled Shri Norberto
Paulo Fernandes and Ors vs
Shri.Gabriel Sebastiao Idalino
and Ors.
11. Annexure P/6: 136-139
A copy of the judgment dated
02/06/1982 passed by the then
Judicial Commissioner Dr.Couto
J in Civil Revision
Application No.208/80.
12. Annexure P/7: 140-150
A copy of the judgment and
decree dated 10/03/2011 passed
by learned district and
sessions judge, south Goa,
Margao in regular civil
application no.389/2010.
13. Annexure P/8: 151-166
A copy of the Judgment dated
30/7/2002 in special civil
suit no:42/99/B at the court
of the addl.civil judge senior
division,at vasco da gama
14. Application to permit the Power 167-169
of Attorney Holder to appear in
person before the Honble
Supreme court.
15. Annexure P/9: 170-173
A copy of the Power of
Attorney.
B
SYNOPSIS AND LIST OF DATES
1. This special leave petition (SLP) raises
vital questions related to the Laws in
force in the State of Goa after coming
into force of the The Goa,Daman and Diu
(Laws) No.2 Regulation,1963. Though the
issues regarding which Portuguese laws are
still in force and which laws are repealed
in the state of Goa is no longer res-
integra in view of the judgement of the
Honble Supreme Court of India in
Syndicate Bank V/s Prabha D. Naik and anr,
The failure of the State Government of Goa
to authenticate and publish the laws still
in force in the regional or Official
Language has been affecting all the
citizens of the state of Goa. It is a
bitter truth that in the State of Goa no
Citizen has access to an authenticated
version of the Laws still in force in the
State of Goa. The succession and family
laws of the Portuguese Civil Code are
still in force in the state of Goa.
C
2. Still after the decision of this Honble
Court in Syndicate Bank V/s Prabha D. Naik
and anr wherein this court has held that
either a chapter of the Portuguese civil
code exists in its entirely or not and no
single provision from any of the repealed
chapters can be said to be still in force.
In various cases which came up before
various subordinate courts and also before
the Honble High Court in the state of Goa
and also in the impugned Judgment/Order of
the present suit, the courts have held
that some single provisions from the
repealed chapter are still in force, these
cases have not been challenged before this
Honble supreme court as such there has
been miscarriage of justice not just in
the case of the petitioner but also to the
public of the state of Goa.The Citizens of
the state of Goa has to approach the
advocates just to know the Portuguese Laws
referred in their cases, and the advocates
in turn mislead the ignorant citizens,
ignorant in terms of not knowing whether
the laws are repealed or still in force
D
because the Government of Goa has not
published authenticated translations of
the laws in force even after 58 years of
liberation from Portuguese rule.
3. Also another case titled Second Appeal
No.3 of 2006 titled Shri Norberto Paulo
Fernandes and Ors vs Shri.Gabriel
Sebastiao Idalino and Ors (Annexure-P/5)
decided by the Honble High Court of
Bombay at Goa which is taken as precedent
by the Honble High Court of Bombay at Goa
in deciding the impugned judgment was
challenged before this Honble Supreme
Court in SLP (Civil) Sc 18992/2012,but
unfortunately the SLP came to be withdrawn
by the appellants therein.
BRIEF BACKGROUND
1. The petitioner and Respondent No.1,4 and 6
are children of Respondent No.3 and her
husband Basu Dipu Naik(now
deceased).Respondent No.3 and her husband
on 24.12.1968 purchased a property
E
admeasuring 1318 Square meters known as
Piturlem, Situated at Sancoale Village.
Thus the property was Self acquired
property of the Respondent No.3 and her
husband.
2. On 21.12.1993 the Respondent No.3 and her
husband executed deed of sale with the
Petitioner, Respondent No.4 and Respondent
No. 6 who are the daughters of the
Respondent No.3 and her husband.
Respondent No.1 who is the son of
Respondent No.3 and her husband was
excluded from the sale deed. The
Petitioner, Respondent No.4 and Respondent
No.6 were all major in Age at the time of
sale.
3. On 13.10.1997 the husband of Respondent
No.3 Expired(father of Petitioner and
Respondent No.1,4,6)
4. The Respondent No.1 and his wife The
Respondent No.2 filed a suit bearing
Special Civil Suit No. 42/99/B. before the
F
Court of ADDL. Civil Judge Vasco for
declaring the sale deed dated 21.12.1993
null and void claiming that the sale deed
is against the Article 1565 of the
Portuguese Civil Code. Though at this time
the Respondent No.1 and His wife did not
advance any arguments claiming that
Article 1565 is a provision of Succession
law.the Special Civil Suit was dismissed
giving reasons that the suit property did
not form part of the inheritance as right
of inheritance to the estate leaver arises
only on the death of the estate leaver in
the property left by him on the date of
his death and not in any other property
and so on the day of sale deed Respondent
No.1 cannot say that he got the share in
the said property at that time(Annexure-
P8).
5. The Respondent No.1 and his wife
challenged the judgment of the Special
Civil Suit by way of Regular Civil Appeal
No.389/2010 filed before the Court of
district And Sessions Judge, south
G
Goa,Margao.The District judge allowed the
appeal giving reasons that Article 1565 of
the Portuguese civil code is a provision
of law regarding disposal of properties in
Goa and that parents cannot violate
article 1565 of Portuguese civil code
while executing the said sale deed dated
21.12.1993 as such declared the sale deed
null and void and ineffective by judgment
and order dated 10.03.2011(Annexure-P7).
6. The Petitioner and Respondent No.3,4,5,6,7
and 8(all original appellants in Second
Appeal No.24 of 2012) appealed against the
Judgment and order dated 10.03.2011 before
the Honble High Court of Bombay at
Goa.The Advocate of the Petitioner
contended before the Honble High Court
that article 1565 of the Portuguese Civil
Code is Repealed by Coming into force of
Transfer of property Act, Even when there
existed an Exactly same Judgment of the
Honble High Court in Second Appeal No.3
of 2006 titled Shri Norberto Paulo
Fernandes and Ors vs Shri.Gabriel
H
Sebastiao Idalino and Ors wherein Exactly
the Same Contention of the Advocate
therein was Rejected by the Same Judge of
the Honble High Court(Annexure-P5). The
contention was same word by word. The
Petitioner had number of times approached
the advocate and informed him that the
Article 1565 of the Portuguese civil Code
is a provision belonging to the Chapter of
Portuguese Civil Code dealing with
contracts and not successions and it is
repealed by Indian Contracts Act and Not
by any provision of Transfer of Property
Act, but the Advocate did not bring this
fact to the notice of the Honble High
Court during the Case Proceedings of
Second Appeal No.24 of 2012.
7. The Honble High Court dismissed the
Second Appeal with simple reasoning that a
provision of succession law cannot be
repealed by transfer of property act,
which was contended by the advocate of the
petitioner (Annexure-P4).
I
8. Since there was ignorance of the law while
deciding the matter in the High Court the
petitioner then approached another High
Court advocate to file review of the
Order/Judgment of the Second appeal No.24
of 2012. The Second advocate approached by
the petitioner first delayed the matter
till the limitation period to file the
review was over and then took a stand that
there is no weight in our matter, and
asked the petitioner to get a judgment or
decision wherein any court has explicitly
held that article 1565 of Portuguese civil
code is repealed.
9. After refusal of the advocate to file
review the petitioner approached two more
advocates to file the Review of the Order
of Second Appeal No.24 of 2012 but all
refused to take up the matter while trying
to convince us that parents cannot sell
property to childrens.
J
10. After the advocates tried to deny the
petitioner justice, the petitioner was
able to file a review petition bearing
Civil Application Review No.11 of 2014 on
her own after a delay of 378 days, Drafted
by her son Mr.Vishal Gajanan Naik, who
will also be appearing on behalf of me in
person before this honble Supreme Court
in the present Special leave Petition.A
Copy of the memo of the Civil Application
Review No.11 of 2014 is annexed herewith
and marked as Annexure-P1.
11. An Application for condonation of delay in
filing the Review Application was also
filed bearing Miscellaneous Civil
Application No.813 of 2013 and by Order
dated 28
th
February 2014 the Single Judge
of the Honble High Court condoned the
delay of 378 days for the reasons stated
in the Application for condonation of
delay.it is pertinent to note that the
Respondent No.1 and 2 did not appear
before the High Court nor engaged any
K
advocate. A Copy of the Miscellaneous
Civil Application No.813 of 2013 and its
Order dated 28
th
February 2014 are Annexed
herewith and marked as Annexure-P3 and
Annexure-P2 respectively.
12. The Review Application was rejected by the
Honble High Court giving reasons that the
article 1565 of the Portuguese civil code
is a provision of Portuguese succession
law in force in Goa and it is not repealed
by the Transfer of Property Act, though in
the review application the petitioner has
contended that the article 1565 is a
provision of Contracts Law of the
Portuguese Civil Code and repealed on
coming into force of Indian contracts Act.
And that article 1565 does not provide any
accrual of rights but only prohibits
execution of a contract of sale between
parents or grandparents and childrens or
grandchildrens, if executed without
consent of all the childrens or
grandchildrens. A copy of the impugned
Final order and Judgment of Civil
L
Application Review No.11 of 2014 is placed
at Pages 1 to 3 of the Slp.
13. The Respondents were duly served in all
the Three suits filed before the Honble
High Court, that is in Second Appeal No.24
of 2012,Civil application Review No.11 of
2014 and Miscellaneous Civil Application
No.813 of 2013(condonation of delay in
filing review).The Respondent No.1 & 2
decided to remain absent from the
proceedings because if they have appeared
before the Honble High Court the
respondent No.1 & 2 would be bound to file
their reply and they would have to clarify
whether the suit property is part of the
legitime portion of the parents or not.
14. Aggrieved by the impugned Judgment/order
of the Civil Application Review No.11 of
2014 the appellant has filed the present
Special Leave Petition.
M
LIST OF DATES AND EVENTS
Sr. No. Date Particulars of events
1. 21/12/1993 Respondent No.3 and her
Husband executes Sale Deed
with the Petitioner and
Respondent No. 4 & 6,All
major in age at the time of
sale deed.
2. 13/10/1997 The Husband of Respondent
No.3 (father of Petitioner,
Respondent No.1, 4 & 6)
demises.
3. 02/08/1999 The Respondent No.1 filed a
suit bearing Special Civil
Suit No.42/1999/B at the
court of the addl.civil
judge senior division,at
vasco da gama for
declaration that the sale
deed dated 21.12.1993 to be
declared as null and void.
4. 10/03/2011 The Learned Trial Court has
been pleased to dismiss the
Special Civil Suit No
.42/1999/B.A copy of the
Decision of Special Civil
Suit No.42/1999/B.A is
N
annexed hereto and marked
as Annexure P/8(Pages:151
to 166).
5. 01/06/2010 Respondent No.1 files appeal
before the District Court
which was made over to the
District Judge II, South
Goa, Margao and which was
registered as the Regular
Civil Appeal No.389/2010.
6. 10/03/2011 learned district and sessions
judge, south goa, margao
Decrees the suit in favour
of Respondent No.1. Copy of
Judgment and decree dated
10/03/2011 in Civil Appeal
No.389/2010 is annexed
hereto and marked as
Annexure P/7(Pages:140 to
150).
7. 10/06/2011 Petitioner, Respondent No.3,
4,5,6,7 and 8 (All original
appellants) files Second
Appeal before the Honble
High Court,registered as
Second Appeal No.24 of 2012.
8. 09/12/2011 The Learned Single Judge of
the Honble High Court
decides Second Appeal No.3
O
of 2006 titled Shri Norberto
Paulo Fernandes and Ors vs
Shri.Gabriel Sebastiao
Idalino and Ors.A copy of
the Judgment of Second
Appeal No.3 of 2006 dated 9
th
December 2011 is annexed
hereto and marked as
Annexure P/5(Pages:112 to
135).
9. 21/06/2012 The Learned Single Judge of
the Honble High Court
dismisses the Second appeal
filed by the Appellant by
order dated 21/06/2012. A
copy of the Judgment of
Second Appeal No.24 of 2012
dated 21
st
June 2012 is
annexed hereto and marked as
Annexure P/4 (Pages:99 to
111).
10. 27/08/2013 The Petitioner files
Miscellaneous Civil
Application No.813 of 2013
for condonation of delay
in filing the Civil
Application (Review) No.11
of 2014. A copy of the
Memo/pleadings of the
Miscellaneous Civil
Application 813 of 2013
P
is annexed herewith and
marked as Annexure
P/3(Pages:88 to 98).
11. 27/08/2013 The Petitioner files Civil
Application (Review)
No.11 of 2014 for review
of the Order of Second
Appeal No.24 of 2012. A
copy of the
Memo/pleadings of the
Civil Application Review
No.11 of 2014 is annexed
hereto and marked as
Annexure P/1(Pages:64 to
85).
12. 28/02/2014 The Learned Single Judge of
the High Court allows the
Miscellaneous Civil
Application No.813 of
2013 thus condoning the
delay of 378 days in
filing the Civil
Application (Review)
No.11 of 2014. A copy of
the Order dated 28
th
February 2014 in
Miscellaneous Civil
Application No.813 of
2013 is annexed hereto
and marked as Annexure
P/2(Pages:86 to 87).
Q
13. 20/03/2014 The Learned Single judge of
the Honble High Court
rejects the Review Filed
By the Appellant in Civil
Application Review No.11
of 2014 by impugned order
dated 20/03/2014.
14. 26/03/2014 The Petitioner applies for
certified copies of the
impugned Final Order and
judgment of Civil
Application Review No.11 of
2014.Dates of applying for
the certified copy of the
Order and Judgment can be
seen on page 3 of the SLP.
15. 22/05/2014 Certified copies of the
impugned Order dated
20/03/2014 of Civil
Application Review No.11 of
2014 were ready.
16. 22/05/2014 Certified copies of the
impugned Order of Civil
Application Review No.11 of
2014 dated 20/03/2014 were
delivered to the
Petitioner.
02/08/2014
4
IN THE SUPREME COURT OF INDIA
(Order XVI Rule 4(1) (a)
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION
(Under Article 136 of the Constitution of
India)
S.L.P. (Civil) No of 2014
(Arising out of the impugned final Order and
judgment dated 20
th
March 2014 passed by the
Honble High Court of Bombay at Goa, in Civil
Application Review No.11 of 2014 which was
filed for review of the final order/Judgment of
Second Appeal in Second Appeal No.24 of 2012
passed by the High Court)
BETWEEN Position of parties
In the Court from
whose order the
Petition arises
In the In This
High Court Court
A) Smt.Vijaya Gajanan Naik,
Major in age,Residing
at House No.141,Akshibhat,
Agassaim,Ilhas Goa
Appellant Petitioner
A N D
5
B) Shri. Suresh Basu Naik,
son of late Basu Dipu Naik,
major in age,married,
businessman and his wife
Contesting
Respondent No.1 Respondent No.1
C) Smt.Mary Rosa Goes alias
Maya Suresh Naik,Major in age,
housewife, both residents of
House No.128,
pithole,Sancoale,
Mormugao,Taluka Goa
Contesting
Respondent No.2 Respondent No.2
D) Smt. Premavati Basu Naik,
major in age, widow of Basu
Dipu naik,housewife,
House No.138,
Rua de Maria,Sancoale,
Mormugao Taluka,Goa
Proforma
Respondent No.3 Respondent No.3
E) Smt.Tara Prakash Naik,
Major in age,widow of
Prakash Naik.
House No.138, Rua de Maria,
Sancoale, Mormugao Taluka,Goa
Proforma
Respondent No.4 Respondent No.4
F) Shri.Kalidas Prakash Naik,
Major of age,student,
6
son of late Prakash Naik,
Residents of House No.138,
Rua de Maria,Sancoale,
Mormugao Taluka,Goa.
Proforma
Respondent No.5 Respondent No.5
G) Smt.Rohini Ladu Naik,
Major in age,married,housewife,
And her husband
Proforma
Respondent No.6 Respondent No.6
H) Shri. Ladu Datta Naik,
Major in age,service,
both residing at House No.
36/B,Issorim,Velsao,
Mormugao Taluka,Goa
Proforma
Respondent No.7 Respondent No.7
I) Shri. Gajanan Laxman Naik,
Major in age,residing
at House No.141,Akshibhat,
Agassaim,Ilhas Goa.
Proforma
Respondent No.8 Respondent No.8
To
The Hon'ble Chief Justice of India and His
Companion Judges of the Supreme Court of India.
7
1. The Special Leave Petition of
the Petitioner most respectfully showeth :-
a. The petitioner above named respectfully
submits this petition seeking special
leave to appeal against the impugned Final
order/Judgment of the single Judge of the
Honble High Court of Bombay at Goa in
Civil Application Review No.11 of 2014
dated 20
th
March 2014 dismissing the
Application for review of the final
Order/Judgment of the High Court in second
Appeal No.24 of 2012,dated 21
st
June
2012(Annexure-P/4) by which the Honble
High Court had dismissed the Second Appeal
No. 24 of 2012.
b. The impugned Order of Civil Application
Review No.11 of 2014 was passed dated 20
th
March 2014, the application for certified
copies of the order dated 20
th
march 2014
was made on 26
th
March 2014,the date given
for collecting the Certified Copy of the
impugned judgment was extended to 22
nd
May
2014 by the court office as the final
8
Judgment was not dictated by the Honble
single judge of the High Court and the
copies were ready only on 22
nd
May 2014 and
the Certified copies were finally
delivered to the Petitioner on the same
day i.e on 22
nd
May 2014.Hence this Present
Special leave Petition is within the 90
days of the Limitation period. Date of
applying for certified copy of the
impugned judgment and date on which the
copy was ready appears at page 3 of this
SLP.
2. QUESTION OF LAW:
The following questions of the law arises for
consideration by this Hon'ble Court:
a. Whether the Learned single Judge of the
Honble High Court committed error or
gross illegality in that he ignored the
fact that article 1565 is not provision of
succession law in force in the state of
Goa?.
b. Whether the Learned single Judge of the
Honble High Court committed error or
9
gross illegality in that he ignored the
fact that article 1565 is the provision of
the chapter of Portuguese civil code
titled Contract of Sale which has been
repealed after coming into force of
Indian Contract Act and not by Transfer
of Property Act?.
c. Whether the Learned single Judge of the
Honble High Court committed error or
gross illegality in simply assuming and
not deciding himself whether the suit
property is legitime portion of the
parents or not?.
d. Whether the Learned single Judge of the
Honble High Court committed error or
gross illegality in that he did not at all
consider the pleadings of the appellant in
the Civil Review Application made before
him?.
e. Whether the Learned single Judge of the
Honble High Court committed error or
gross illegality in that the impugned
10
judgment is perverse and as such is not
sustainable in law?;
f. Whether the Learned single Judge of the
Honble High Court committed error or
gross illegality in that he ignored the
law laid down by the court of record,i.e
the Honble Supreme Court of India
regarding repeal of laws of Portuguese
civil code,in the case of Syndicate Bank
V/s Prabha D. Naik and anr ?.
g. Whether the parents i.e the Respondent
No.3 and her Husband(now deceased) had no
disposal right with respect to the self
acquired suit property?.
h. Whether the Respondent No.1 had ownership
right in the self acquired suit property
during the lifetime of his parents i.e at
the time of the execution of the sale
deed?.
i. Whether the Respondent No.1 could have
claimed his share of inheritance in the
11
self acquired suit property of his parents
i.e Respondent No.3 and her Husband during
their life time, the inheritance which he
would have become entitled after the death
of his parents if parents had not disposed
the said self acquired suit property ?.
j. Whether the single judge of the Honble
High Court failed to see that suit
property is not part of the legitime
portion of the parents i.e of the
Respondent No.3 and her husband?.
k. Whether the single judge of the honble
High Court failed to see that suit
property was not part of any inheritance
during the life time of the Parents?.
l. Whether the single judge of the Honble
High Court failed to see that the suit
property was not disposed by way of
testamentary disposition nor intestate as
such succession law cannot be invoked?.
12
m. Whether the single judge of the Honble
High failed to see that the suit property
did not form the part of the legitime
portion of the Respondent No.3 and her
husband as per the Portuguese Succession
law still in force in the State of Goa ?.
n. Whether the single judge of the Honble
High Court was wrong to presume without
any evidence on record that the suit
property of the impugned Judgment and
Second Appeal No.24 of 2012(Annexure-P/4)
as the part of the legitime portion of the
parents ?.
o. whether the single judge of the Honble
High Court failed to see that the evidence
and facts of the second appeal No.3 of
2006(Annexure-P/5) are not same as that of
the suit property of impugned Judgment and
Second Appeal no.24 of 2012(Annexure-P/4).
p. whether the single judge of the Honble
High Court was wrong to disregard the
judgment of Honble Supreme court in
13
Syndicate Bank V/s Prabha D. Naik and anr.
which is binding on the High Court,supreme
court being the court of record ?.
q. whether the single judge of the Honble
High Court failed to see that the Indian
contract Act is applicable in the State of
Goa ?.
r. Whether the single judge of the Honble
High Court failed to see that the Indian
Contract Act has repealed the chapter of
Portuguese Civil Code dealing with
Contracts in Goa,of which the article 1565
also part of ?.
s. Whether the single judge of the Honble
High Court was wrong in naming and simply
calling the provision of law of contract
of Portuguese civil code i.e Article 1565,
the Provision of Succession law ?.
t. Whether the single judge of the Honble
High Court failed to see that Before the
death of the ancestor, an expectant heir
14
or distributee has no vested interest but
only a mere expectancy or possibility of
inheritance. Such an individual cannot on
the basis of his or her prospective right
maintain an action during the life of the
ancestor to cancel a transfer of property
made by the ancestor ?.
u. Whether article 1565 of the Portuguese law
of contracts can be said/named to be
provision of succession law and
consequently inferred to be not repealed
by Indian contracts act?
3. DECLARATION IN TERMS OF RULE 4(2)
The petitioner states that no other petition
seeking leave to appeal has been filed by him
against the impugned judgment and order.
4. DECLARATION IN TERMS OF RULE 6
The annexures produced along with the SLP are
true copies of the pleadings/documents which
formed part of the records of the case in the
Court below against whose order the leave to
appeal is sought for in this petition.
15
5. G R O U N D S :-
1. Leave to appeal is sought on amongst the
following grounds:
2. The impugned order is bad in law and as
such, deserves to be quashed and set
aside;
3. The learned Single Judge of the High Court
erred in dismissing the Second Appeal No.
24 of 2012 and Civil Application Review
No.11 of 2014;
4. The Honble High Court failed to consider
the following grounds among others, as
such the impugned order is invalid,
incorrect, improper and as such, liable to
be set aside.
5. In the review application filed by the
Petitioner the Honble High court Wrongly
held that the main ground of the review is
to contend that the provisions of Article
1565 of the Portuguese Civil Code dealing
with the succession are no longer in force
16
after Coming into force of the Transfer of
Property Act. In reality the Petitioner
had disputed the opinion of the High Court
that the article 1565 is dealing with
successions, furthermore the Petitioner
has stated that the article 1565 is
provision of the chapter of contracts in
the Portuguese civil code and that it is
repealed after coming into force of Indian
contracts Act.
6. The Review Filed by the Petitioner in
Civil Application (Review) No.11 of 2014
was erroneously rejected by the single
judge of the Honble High Court without
going into merits of the case. in Fact the
Honble Single Judge erroneously
misinterpreted the grounds contended by
the Petitioner. In the impugned Order
dated 20/03/2014 (Pages 1 to 3 ) the
Honble Single Judge held as follows:
I have heard the applicant in person
and perused the records. The main ground
of the review is to contend that the
provisions of Article 1565 of the
17
Portuguese Civil Code dealing with the
succession are no longer in force after
coming into force of the Transfer of
Property Act. This aspect has been duly
examined while disposing of Second
Appeal No. 24 of 2012 by judgment dated
21.06.2012. Those provisions are dealing
with succession which has been examined
while passing the judgment under
review.
7. The Petitioner had contented in the said
review application (Annexure P/1) that:
a)The Article 1565 of the Portuguese
civil code is a provision contained in
the chapter named contract of sale,a
chapter of Portuguese civil code
dealing with contracts and not
successions.
b)That the article 1565 is not a
provision of succession law as it does
not protect any legitime portion or
guarantee any share to any
18
descendents. Only reason given for
naming/calling the article 1565 as the
provision of succession law is that
since it prohibits execution of
contract of sale to some children
without taking consent of the
remaining,because of this restriction
to sale it was opinioned by the
Honble High Court that article 1565
protects legitime portion. The suit
property in reality and as per the
evidence on record is not part of
legitime portion of the parents at
all.
c)That the article 1565 being a
provision of chapter of contracts of
sale in the Portuguese civil code and
it is repealed after coming into force
of the INDIAN CONTRACT ACT and not
Transfer of Property Act
8. These contentions of the Petitioner were
erroneously ignored by the learned single
judge of the Honble High Court.
19
9. The learned single judge of the Honble
High Court erroneously ignored that the
Indian contract act extended to the state
of Goa and its consequent repeal of the
entire chapter of the Portuguese civil
code dealing with the contracts, without
any dissection and without exception of
any provision.
10.The learned single judge of the Honble
High Court erroneously ignored the fact
that the suit property is not part of the
legitime portion as such neither article
1565 nor succession law can be invoked.
11.And the learned single judge of the
Honble High Court also erroneously
ignored the judgment of the honble
Supreme Court in Syndicate Bank Vs Prabha
D.Naik & Oths wherein it is held that
Either the code applies in its entirety
or it does not-there is no half way about
it.. The judgment of the Supreme Court,
being the court of record is binding on
20
the Honble High Court and the Honble
High Court cannot deviate from the law
laid down by the Supreme Court in the said
judgment.
12.The learned single judge of the Honble
High Court erroneously ignored the fact
that the article 1565 is the provision of
the chapter of Portuguese civil code
dealing with the contracts as such the
whole chapter has been repealed on coming
into force of the Indian Contracts act in
the state of Goa.
13.The Honble High Court committed an error
by ignoring the above facts brought before
it in the Civil Application Review which
if not corrected will cause gross
miscarriage of justice and also undermines
the authority of the Honble Supreme Court
of India hence the present appeal is
maintainable.
14.The review application before the Honble
High Court was filed in accordance with
21
the law laid by the Honble Supreme court
In Board of Control for Cricket in India &
Anr. V/s. Netaji Cricket Club & Ors. (2005
(4) SCC 741), wherein the Apex Court has
stated that Order 47, Rule 1, of CPC
provides for filing an application for
review and such an application for review
would be maintainable not only upon
discovery of a new and important piece of
evidence or when there exists an error
apparent on the face of the record but
also if the same is necessitated on
account of some mistake or for any other
sufficient reasons. What would constitute
sufficient reason would depend on the
facts and circumstances of the case and
the words sufficient reason in Order 47,
Rule 1, of CPC are wide enough to include
a misconception of fact or law by a court
of even an advocate and that an
application for review may be necessitated
by way of invoking the doctrine actus
curiae neminem gravabit (emphasis
supplied). The Apex Court took note of
Lily Thomas & Ors. V/s.Union of India &
22
Ors reported in AIR 2000 SC 1650. and
noted;
52. The dictionary meaning of the word
'review' is 'the act of looking, offer
something again with a view to
correction or improvement'. It cannot be
denied that the review is the creation
of a statute. The Honble High Court in
Patel Narshi Thakershi V/s.
Pradyumansinghji Arjunsinghji, held that
the power of review is not an inherent
power. It must be conferred by law
wither specifically or by necessary
implication. The review is also not an
appeal in disguise. It cannot be denied
that justice is a virtue which
transcends all barriers and the rules or
procedures or technicalities of law
cannot stand in the way of
administration of justice. Law has to
bend before justice.If the Court finds
that the error pointed out in the review
petition was under a mistake and the
earlier judgment would not have been
passed but for erroneous assumption
23
which in fact did not exist and its
perpetration shall result in a
miscarriage of justice nothing would
preclude the Court from rectifying the
error.
15.The power of review is set out in Order 47
Rule 1 of the Code of Civil Procedure
which provides application for review of
judgment which reads as under:
Any person considering himself
aggrieved -by a decree or order from
which an appeal is allowed, but from
which no appeal has been preferred,by a
decree or order from which no appeal is
allowed, or
[c] by a decision on a reference from a
Court of Small Causes,and who, from the
discovery of new and important matter or
evidence which, after the exercise of
due diligence was not within his
knowledge or could not be produced by
him at the time when the decree was
passed or order made, or on account of
some mistake or error apparent on the
24
face of the record or for any other
sufficient reason, desires to obtain a
review of the decree passed or order
made against him, may apply for a review
of judgement to the Court which passed
the decree or made the order.
16.Further the Hon'ble Supreme Court in the
case of M.M.B. Catholicos v. M.P.
Athanasius reported in AIR 1954 SC 526
particularly para 32 which reads as under:
The Court of review has only a limited
jurisdiction circumscribed by the
definitive limits fixed by the language
used therein.
It may allow a review on three specified
grounds namely (i) discovery of new and
important matter or evidence which after
the exercise of due diligence, was not
within the Appellant's knowledge or
could not be produced by him at the time
when the decree was passed, (ii) mistake
or error apparent on the face of the
record and (iii) for any other
sufficient reason.
25
It has been held by the Judicial
Committee that the words 'any other
sufficient reason' must mean a reason
sufficient on grounds, at least
analogous to those specified in the
rules.
17.Further the Petitioner had relied upon
Halsbury's Law of India Vol. 7 para of
CPC.65.775 on page 521 which provides
thus:
OBJECT:
The remedy of review, which is a
reconsideration of a judgement by the
same Court and by the same judge has
been borrowed from the Courts of equity.
The concept was not known to the common
law. The remedy has a remarkable
resemblance to a writ of error. The
basic philosophy, inherent in the
recognition of the doctrine of review,
is acceptance of human fallibility. If
there is an error due to human failing,
it cannot be permitted to perpetuate and
to defeat justice. Such mistakes or
26
errors must be corrected so as to
prevent miscarriages of justice. Justice
is above all as it is a virtue which
transcends all barriers. Neither the
rules procedure nor technicalities of
law can come in its way as the law has
to bend before justice. Rectification of
an order thus stems from the fundamental
principle that justice is above all. It
is exercised to remove an error and not
to disturb finality.
18.Hence the learned single judge was erred
in rejecting the review application
(Annexure P/1) of the Petitioner.
19.The Petitioner No.1 & Respondent No.4, & 6
are the daughters and respondent No. 1 is
the son of Respondent No.3 and her Husband
Late Basu Dipu Naik.
20.The Husband of Respondent No.1 Expired on
13/10/1997,the sale deed was executed
before the death by both the parents as
such succession law cannot be invoked for
27
the actions of the Respondent No.3 and her
husband in selling the suit property to
Petitioner and Respondent No.4 & 6.
21.The article 1565 of the Portuguese law of
contract of sale is not repealed by the
Transfer of property Act but repealed by
Indian Contract Act.
22.In the judgment of the honble Supreme
Court in Syndicate Bank Vs Prabha D.Naik &
Oths it is held that Either the code
applies in its entirety or it does not-
there is no half way about it.. The
judgment of the Supreme Court, being the
court of record is binding on the Honble
High Court and the Honble High Court
cannot deviate from the law laid down by
the Supreme Court in the said judgment
23.The article 1565 is the provision of the
chapter of Portuguese civil code dealing
with the contracts as such the whole
chapter has been repealed on coming into
28
force of the Indian Contracts act in the
state of Goa.
24.The article 1565 of the Portuguese law of
contract of sale is a provision dealing
with the law of contract of sale in the
Portuguese civil code, and finds its place
under the chapter titled contract of
sale in subsection titled The persons
who can buy, and who can sell.
25.No share in the present suit property was
guaranteed to the respondents No.1 under
any of the law existing at the time of
sale not even under article 1784 which
guarantees share in the legitime portion
to the descendents.
26.Article 1565 does not make the children
co-owner in the self acquired property of
the parents.
27.The suit property is self acquired
property of the parents and does not form
part of the inheritance at the time of
29
sale by the parents as held by the COURT
OF THE ADDL.CIVIL JUDGE SENIOR DIVISION,AT
VASCO DA GAMA IN SPECIAL CIVIL SUIT
NO:42/99/B (Annexure P/8).and as such
cannot be held as part of the Legitime
Portion of the parents under article 1784
of the succession law.
28.The learned ADDL.CIVIL JUDGE held at page
10 of the judgment(Annexure P/8)(Page 160
of this Slp) that:
It is to be noted that right of
inheritance to the estate lever arises
only on the death of estate lever in the
property left by him on the dated of his
death and not in any other property and
so on the day of sale deed plaintiff
cannot say that he got the share in the
said property at that time, other vise
also he had given undertaking not to
claim any right and so in such
circumstances, I hold that plaintiff was
not at all having any share at the time
of sale deed in the suit property...
30
29.As such the respondents No.1 did not have
any share in the suit property at the time
of sale deed nor was the property a part
of the legitime portion of the parents.
30.Further the legal maxim --Nemo est haeres
viventis, which says that No one can
have an heir while alive. As such the
Respondent cannot invoke the Portuguese
succession law to prevent disposal of self
acquired property during the life time of
the parents, just because the respondent
will inherit the property if the parents
die.(in reality the Respondent No.1 and 2
never have till today invoked the
succession law but the Honble High Court
have misinterpreted the provision of
contract law of Portuguese civil code as a
provision of succession law.
31.The article 1565 of the Portuguese law of
contract of sale is a provision dealing
with the law of contract of sale in the
Portuguese civil code, and finds its place
under the chapter titled contract of
31
sale in subsection titled The persons
who can buy, and who can sell.
32.The Honble High Court erroneously held at
para 5 of the Judgement of Second Appeal
No.24 of 2012(Annexure P/4)(Page 103 of
this Slp) that under article 1565 of the
Portuguese Civil Code, there is an express
bar whereby parents cannot sell the
immovable property to the children.
33.The fact is that the article 1565 does not
mention or specify the type of property,
either movable or immovable, but only
prohibits the execution of a contract,
that is the contract of sale, between
parents and the childrens without consent
of all the children.
34.Article 1565 is also applicable to the
sale of goods governed under sales of
goods Act.
35.The judgment in civil revision application
No.208/80 before the court of the then
32
judicial commissioner(Annexure P/6) which
is cited by the Honble High Court at para
5,Page 6 of the Judgement of Second Appeal
No.24 of 2012(Annexure P/4)(Page 104 of
Slp) is completely erroneous as it is
wrongly mentioned therein that the
Transfer of Property Act repealed the
chapter of Portuguese Civil Code dealing
with the contract of Purchase and sale
which is a fallacious statement, no where
the Indian contracts act or Sale of Goods
Act or Negotiable Instruments Act were
even considered, these statutes govern the
contracts in the state of Goa.
36.The judgment of civil revision application
No.208/80 before the court of the then
judicial commissioner (Annexure P/6) is
erroneous and illegal. it is held in the
judgment that article 1565 is aimed to
protect the shares in the estate of their
parents guaranteed by law to the
childrens,but the judgment is silent about
which law guarantees the share the article
1565 aims to protect or under which law
33
the shares are created for the childrens
in their parents self acquired
properties.only when shares are created
the shares can be guaranteed and
protected,the shares which does not exists
cannot be guaranteed or protected.
37.The Honble High Court opinioned in the
Judgment of Second Appeal No.24 of 2012
(Annexure P/4) that the provision of art
1565 is aimed to protect the shares in the
estate of their parents guaranteed by law
to the children.
38.No share in the present suit property was
guaranteed to the respondents
No.1(Respondent No.1 is the son of
Respondent No.3 and her husband) under any
of the law existing at the time of sale
not even under article 1784 which
guarantees share in the legitime portion
to the descendents.
39.If we assume for a moment that no other
law other than art 1565 protects the share
34
of the current suit property to the
respondent No.1, the assumption is still
wrong as the parents even though being
prohibited from selling the present suit
property to some of the children without
obtaining the consent of the others under
Article 1565, the parents can without any
restriction sell the present suit property
to any other person and Article 1565 is
not violated in this case as the suit
property does not form the part of the
legitime portion.
40.Article 1565 does not make the children
co-owner in the self acquired property of
the parents.Hence the article 1565 does
not provide for accrual of rights.And as
such the self acquired property can be
disposed to any other person without
violating article 1565, only exception is
sale to some of the children without
obtaining consent of the remaining
children.
35
41.The commentaries of Dr.Cunha
Gonsalves,Tratade de direito civil ,vol
VIII ,page 506-507 are irrelevant
considering the landmark judgment of the
Honble supreme court in Syndicate Bank
V/s Prabha D. Naik and anr reported in
2001(4) SCC page 713 which has been
completely disregarded by the Honble High
Court under erroneous pretext of
protecting share in the legitime
portion.The Honble Supreme Court is the
Court of Record and law declared by it
cannot be disregarded. commentaries of
Dr.Cunha Gonsalves appear at Page 8 of the
Judgment of Second Appeal No.24 of
2012(Annexure P/4).(Page 106 of SLP)
42.The commentaries of Dr.Cunha
Gonsalves,Tratade de direito civil ,vol
VIII ,page 506-507 are also only
pertaining to contracts. It is held in the
commentaries that the article 1565 of the
Portuguese civil code is a protection of
legitima(legitimate shares) of the
descendents. But the present suit property
36
is not part of the legitima and such the
question of protecting of any share does
not arise at all.
43.The Respondent No.1 did not have any share
in the suit property at the time of sale.
44.The Honble High Court in the Second
Appeal No.24 of 2012(Annexure P/4) held
that the suit property is part of the
legitime portion. Though even the
respondents did not advance any
contentions saying that the suit property
is part of the legitime portion nor does
any evidence exist on record in support of
the opinion of the High Court that the
suit property is part of the legitime
portion. The assumption of the High Court
that the suit property is part of the
legitime portion is not based on evidence
and as such illegal.
45.Right of inheritance to the estate leaver
arises only on the death of estate leaver
in the property left by him on the date of
37
his death and not in any other property
and as such on the day of the execution of
sale deed the respondent No.1 did not have
any share in the suit property at that
time.
46.No one is an heir to a living person.
Before the death of the ancestor, an
expectant heir or distributee has no
vested interest but only a mere expectancy
or possibility of inheritance. Such an
individual cannot on the basis of his or
her prospective right maintain an action
during the life of the ancestor to cancel
a transfer of property made by the
ancestor.
47.The article 1784 in section III of the
Portuguese Succession law titled LEGITIME
AND INOFFICIOUS DISPOSITIONS defines the
term LEGITIME PORTION.
Article 1784
The legitime is the portion of the
property which the testator may not
dispose of, since it is reserved by law
38
to the heirs who are relatives in
ascending or descending direct line.
Single ) this portion consists of half
of the property of the testator, not
precluding the provisions of articles
1785, no. 2, and 1787.
48.The Honble High Court in the judgment of
Second Appeal No.3 of 2006(Annexure P/5)
which has been taken as precedent for
deciding the Second appeal No.24 of 2012
at para 10 has held that on the grounds of
article 1766 alone the sale of the suit
property of second appeal No.3 of 2006 is
null and void:
In the present case, considering that
it is not in dispute that upon the death
of the husband of appellant no.3,no
inventory proceedings were initiated to
partition his estate nor any partition
in fact has been carried out whereby the
suit properties were allotted to the
appellant no.3,the question of the
appellant no.3 disposing the said
properties in favour of appellant nos. 1
39
and 2 has no legal effect. It is also to
be noted that the appellant no.3 had
lineal descendents and such exercise on
her part would affect the legitime of
such descendants. In fact reading of
provisions of Article 1766 of the
Portuguese Civil Code,if such transfers
are made and the above circumstances
exist, the transaction is null and
void.As such ,on this ground alone the
impugned sale deed is null and void and
has no legal effect.
49.As such the learned single judge of the
Honble High Court erred in relying on
article 1565, the issue which is though
decided in Second Appeal No.3 of
2006(Annexure P/5) suffers from gross
irregularity.
50.The Learned Judge in Second Appeal No.3 of
2006 (Annexure P/5) while deciding the
issue of article 1565 at para 11 has
wrongly held that(Page 126 of SLP):
40
Article 1784 of the Portuguese Civil
Code Provided that the legitime means
the portion of the properties that a
person cannot dispose of because it has
been set apart by law for the lineal
descendants or ascendants.
51.The Learned Judge erroneously replaced the
term testator with the term person
thus changing the definition of the
legitime portion,which then makes the
article 1784 a provision pertaining to
disposal of property during life time of a
person(by sale or gift) and not
testamentary succession. The wrong view of
article 1565 being provision of succession
law came into existence only because of
erroneous amendment of article 1784 in the
second appeal No.3 of 2006 (Annexure
P/5),combined with the article 1565 which
is actually a provision of contracts of
sale;the article 1565 of the Portuguese
civil code is as follows:
The parents or grandparents cannot sell
nor mortgage to children or grand
41
children, if the other children or grand
children did not consent in the sale or
mortgage.
Sole para-if any of them refuse his
consent or is incapable of giving it,or
such consent is unable to be
obtained,this shall be obtained by the
family council,arranged in terms of
article 207,which shall be called for
this purpose
52.The replacement of the term testator
with the term person in article 1784
allows the article 1784 and article 1565
to be read together thus merging the
provision of succession law(article 1784)
and the provision of contracts law(article
1565) which is a gross error.
53.The article 1784 clearly states that the
legitime is the portion of the property
which the testator may not dispose off,
since it is reserved by law to the heirs,
the parent who disposes his property by
way of a will is called the testator.
42
54.In the present case neither of the parents
is a testator as the property was
disposed not by way of a will but
through sale deed executed with the
Petitioner and Respondent No.4 and 6.
55.As per the succession law still in force
in Goa Only the property which a parent
cannot dispose off in a will, since it is
reserved by law to the heirs is called the
LEGITIME PORTION, and not which has been
disposed by way of a sale during their
lifetime and which is not part of any sort
of inheritance.
56.Under the succession law in chapter I
titled PRELIMINARY PROVISIONS,In article
1735 which is the first provision of the
chapter, states that:
Article 1735
Any person may succeed, upon the death
of another, to all his/her property, or
to a part thereof, as a result of a
disposition of a will or of the law. In
43
the first case, there is testamentary
succession; in the second, intestate
succession
57.As clear from the text of article 1735
that there exists only two types of
Successions in the Portuguese civil
code,which are:
a)The testamentary Succession and the
b)Intestate succession.
58.The article 1565 cannot be placed in any
of the two types of succession, as no
person can succeed to any property which
can be said to be protected under article
1565, by will or under any other law, nor
even under the said article 1565 itself.as
such the learned judge of the Honble High
Court was erred in declaring article 1565
to be provision of succession law only
because article 1565 prohibits execution
of contract of sale to some children
without obtaining consent of remaining
childrens.
44
59.Article 1565 does not provide accrual of
rights, but only enforcement. As such the
respondent No.1 did not have any co-
ownership right in the suit property under
article 1565 at the time of sale of the
property.
60.In fact the article 1565 only puts a
prohibition on execution of a contract of
sale with the childrens without
obtaining the consent of the others and
does not result in any ownership rights to
any of the children in the suit property
nor leads to protection of any right or
share in the property.
61.It is a fact that a person by no way under
existing laws can dispose a property by
way of a execution of a sale deed with
his children or anyone else after his
death.
62.Only possible way of disposing off a
property after death is by way of a
will.as such the article 1565 cannot be
45
construed as in continuation with the
succession law as article 1565 is a
provision of the contracts law of the
Portuguese civil code and it does not and
cannot prevent the parents from disposing
of the present suit property to any other
person.
63.The judgment of the High Court in Second
Appeal No.3 of 2006(Annexure P/5) which
has been heavily relied on for deciding
the impugned judgment merely decides
whether the article 1565 of Portuguese
civil code which actually a provision of
the chapter of contract of sale of the
Portuguese civil code is not repealed by
the Transfer of property Act, which is a
very narrowly framed question and does not
consider the other laws which were
extended to the state of Goa.
64.As per the judgment of the supreme court
in Syndicate Bank V/s Prabha D. Naik and
anr wherein the Honble supreme court held
that:
46
Be it noted that Article 535 containing
the provisions of limitation in chapter
III regulating the contracts in the
Portuguese Civil Code which how-ever,
stands replaced by the Indian Contract
Act. The prescribed period for
limitation pertaining to the contracts
being in the same Chapter under 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 Contract Act stands replaced. It is
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 Indian
Contract Act in so far as Chapter II is
concerned. Either the Chapter survive
in its entirety or it perishes in its
all spheres it is one chapter dealing
with contract and prescribed the period
of enforcement of the same: no
dissection is possible.
47
65.The article 1565 only provides for
enforceability of a certain nonexistent
right, that is it prohibits execution of
contract of sale with some of the children
without obtaining consent of the others.
But what about the accrual of the rights?.
The children do not accrue any right into
the self acquired property during the
lifetime of parents either by article 1565
or by any other law in existence.
66.If the article 1565 is still allowed to
sustain the result is an absurdity. It is
held by the Honble High Court in the
impugned judgment the article 1565
prohibits the parents from selling their
self acquired suit property to their
children in detriment to the remaining
children. But the parents cannot be
prevented under article 1565 from selling
their self acquired property to the
persons other than their children,
depriving all of their children. This is
possible as the present suit property is
not part of the legitime portion and as
48
such no restrictions on sale of the suit
property are applicable under the
succession law or any other law in
existence.
67.And as held by the Honble Supreme court
in Syndicate Bank V/s Prabha D. Naik and
anr .
The Portuguese Civil Code provides both
for accrual of right and its
enforceability and when the right stands
divested, question of enforceability of
the right arising from a different
source and other than code, would not
arise. Either the code applies in its
entirety or it does not-there is no half
way about it.
68.Article 1565 of the law of contract of
sale of the Portuguese civil code or the
said provision of succession law as
wrongly held by the Honble High Court in
the impugned judgment is a mere procedural
aspect and not a substantial right.
49
69.Further the Honble Supreme Court
Syndicate Bank V/s Prabha D. Naik and anr
has held that:
Incidentally, the legislature is
supposed to be aware of the need of the
society and the existing state of law:
there is no reason whatsoever to
consider that the legislature was
unaware of the existing situations as
regards the Portuguese Civil laws with a
different provision for limitation.
Needless to record the special reference
has been made to the State of Jammu &
Kashmir but after incorporation of the
State of Goa, Daman & Diu within the
Indian Territory, if there was any
intent of having the local law being
made prevalent there pertaining to the
question of limitation only, there would
have been an express exclusion and in
the absence of which no contra intention
can be deduced, neither any contra
inference can be drawn.
50
70.If allowed to exist this provision of
article 1565 is an absurdity and no
purpose is accomplished, the parents
instead of selling the property to the
children can sell the property to any
other persons.The whole purpose of in
corporating this provision, which the
Honble High Court held to be for
protection of legitime share is a wrong
justification for nullifying the legally
valid sale deed.
71.The Honble High Court has not framed any
substantial questions while deciding the
Judgement of Second Appeal No.24 of
2012(Annexure P/4). Instead the issues of
the judgment of Second Appeal No.3 of 2006
has just been assumed to be the issues of
the present suit without considering the
facts and evidence of the present suit.
72.It is agreed that the Honble High Court
correctly answered the substantial
question raised in the Second Appeal No.3
of 2006(Annexure P/5) i.e whether the
51
provisions of Article 1565 of the
Portuguese civil code are not repealed
under Section 44 of the transfer of
property act.
73.But the Honble High Court has not decided
whether the Article 1565 has been repealed
or not by any of the statutes extended to
the territory of Goa under The Goa,Daman
and Diu (Laws) No.2 Regulation,1963.
74.In fact the sale deed which was in
question in Second Appeal No.3 of 2006
(Annexure P/5) was essentially declared
null and void under article 1766 of the
Portuguese Civil code a provision dealing
with communion of properties.
75.The repeal or non repeal of article 1565
was irrelevant to the said Second Appeal
No.3 of 2006(Annexure P/5) as the sale was
declared null and void under article 1766
, as such the parties did not find it
necessary to challenge the part of the
judgment of Second Appeal No.3 of 2006
52
which had held that the article 1565 to be
construed in continuation of the
succession law.
76.The Honble High Court committed
illegality in blindly applying the
judgment of Second Appeal No.3 of
2006(Annexure P/5) to the present suit
without considering the facts and
circumstances of the present case,the
facts of the Second appeal No.3 of 2006
are completely different then that of the
Second Appeal No.24 of 2012(Annexure P/4).
77.The article 1565 is a provision which
finds its place in the chapter of civil
code titled CONTRACT OF SALE.
78.The respondent No.1 is well aware that he
cannot get a co-ownership right in the
self acquired property of the parents in
their lifetime, under any of the
provisions of the succession law nor even
under article 1565 of the Portuguese
contract law.
53
79.The parents were free to dispose of the
self acquired suit property as and how
they want, there was no express
prohibition on disposal of the self
acquired property by the parents under the
existing laws at the time of the execution
of the sale deed, except the so called
article 1565, of the law of contract of
sale of the Portuguese civil code which
prohibit execution of contract of sale
with the children without obtaining
consent of the remaining.
80.The High Court also failed to consider the
law laid in the judgment of the Honble
Supreme Court which is binding on the
Honble High Court.
81.The High Court has completely ignored the
existence of the Indian Contract Act by
which the chapters in Portuguese Civil
Code pertaining to contracts has been
repealed
54
82.And also complete disregard for the law
laid down by the Court of Record,The
Honble Supreme court of India in
Syndicate Bank V/s Prabha D. Naik and anr
reported in 2001(4) SCC page 713.
83.Further it was held by the High Court
without any evidence on record that the
suit property being part of the legitime
Portion is prohibited from disposal under
Article 1565.
84.The facts and evidence pertaining to the
second appeal No.3 of 2006 have been
completely substituted for the facts and
evidence of the present suit which is a
gross irregularity.
85.The proceedings of the said Second Appeal
No. 24 of 2012(Annexure P/4) and Civil
Application Review No. 11 of 2014 Which is
the Impugned Judgment are illegal,
invalid, incorrect, null and void in the
eyes of the law.
55
86.The Honble High Court nor any other court
has decided whether the suit property is
part of the legitime portion of the
parents, no such evidence exists on record
and even the Respondents have not advanced
any such contention saying that the suit
property is part of the legitime portions
of the parents and has been prohibited
from disposal under article 1784 of the
succession law.
87.The Honble High Court has wrongly made a
false assumption that the suit property
being part of the legitime portion of the
parents prohibited from disposal and for
this reason further concluded that article
1565 is provision of succession law.in
actuality the Honble High Court
erroneously committed fallacy of Reverse
Circular reasoning. That is first it is
decided that the suit property is
prohibited from sale under article 1565,
then it is inferred that since article
1565 prohibits sale of the suit property
without the consent of Respondent No.1 the
56
Respondent No.1 has ownership right in the
suit property, and since article 1565
gives ownership right to the respondent
No.1 it is inferred that article 1565 must
be protecting share of the Respondent
No.1,then it is inferred that since
article 1565 is protecting share of the
Respondent No.1 the suit property must be
legitime portion and the article 1565 must
be provision of the succession law.
88.The Honble High Court also failed to see
that if a property is held to be part of
the legitime portion during the lifetime
of the parents only because some provision
of the law of contracts of the Portuguese
civil code prohibits its sale to some
children without obtaining the consent of
the others, The property has to be part of
the legitime portion also when the sale is
executed with persons other than the
children or grandchildren, which is not
the case about the present suit property
if the opinion of the High Court in
calling the suit property part of the
57
legitime portion are considered to be
valid.
89.In fact the status of the present suit
property being legitime share, as per the
opinion of the High Court, changes when
the parties between whom sale of the suit
property is executed are changed from
children to some other persons, which
results in an absurdity as when the
present suit property is sold to other
person who are not children the property
is not prohibited from sale under article
1565 and as such turns out to be not
legitime portion of the parents.
90.The only justification relied by the
Honble High Court for holding the present
suit property as part of the legitime
portion is the prohibition put by article
1565 on execution of contract of sale to
some childrens without obtaining consent
of the others and not under the provision
of Article 1784 of the succession law
which in fact decides the legitime
58
portion. The facts pertaining to the suit
property were completely ignored by the
Honble High Court while deciding the
impugned judgment.
91.The High Court erred to ignore the fact
that The Indian Contract Act has repealed
the chapter of contracts act of Portuguese
Civil Code containing article 1565.
92.The Honble High Court has disregarded the
law laid down in the Judgment of the
Honble Supreme Court in Syndicate Bank
V/s Prabha D. Naik and anr which is
binding on the Honble High Court,supreme
court being the court of record.
93.The Honble Supreme Court in the case of
Rupa Ashok Hurra Vs Ashok Hurra &
Anr[(2002)4 SCC 288] a constitution Bench
has held:
Article 141 says that the law declared
by the Supreme Court Shall be binding on
all courts within the territory of India
and Article 144 directs that all
59
authorities civil and judicial, in the
territorty of India,shall act in aid of
the Supreme Court. It is a Court of
record and has all the powers of such a
Court including power to punish for
contempt of itself(Article 129).
94.The impugned order dated 20
th
March 2014 in
Civil Application Review No.11 of 2014 and
21
st
June 2012 dismissing Second Appeal
filed before the Honble High Court, is
erroneous, invalid, incorrect, improper,
null and void in the eyes of the law and
as such, is liable to be set aside;
95.On the face of the above Special Leave
Petition, the petitioner has made out a
good case to succeed. The averments,
orders and pleadings therein, a prima
facie case is made out which warrants the
maintainability of the Special Leave
Petition.
60
6. MAIN PRAYER
The petitioner, therefore, pray that your
Lordships may graciously be pleased to:-
a) Grant Special Leave to Appeal against the
impugned Final Order/Judgment dated 20
th
March 2014 passed by the Honble High Court
of Bombay at Goa in Civil Application
Review No.11 of 2014.
b) That this Honble Court may be pleased to
decide this Special Leave Petition in the
absence of the Petitioner (in case the
Petitioner fails to appear personally or by
the Power of Attorney Holder for
unavoidable reasons) for any oral argument
as the facts and evidence stated in the
present appeal are already on record.
c) That this Honble Court may be pleased to
pass such other order or to give such other
direction protecting the interest of the
Petitioner as this Honble Supreme Court
may think fit and proper in the facts and
circumstances of the present case so as to
167
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISIDICTION
I.A. No._________ OF 2014
IN
SPECIAL LEAVE PETITION (CIVIL) NO_______OF 2014
IN THE MATTER OF :-
Smt.Vijaya Gajanan Naik Petitioner
Versus
Shri. Suresh Basu Naik & Ors. Respondents
APPLICATION TO PERMIT THE POWER OF ATTORNEY
HOLDER TO APPEAR IN PERSON BEFORE THE HONBLE
SUPREME COURT.
TO
THE HONBLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF THE
SUPREME COURT OF INDIA
THE HUMBLE PETITION OF
THE PETITIONER
ABOVE NAMED
MOST RESPECTFULLY SHOWETH:
1. The applicant had filed accompanying
Special Leave Petition against the impugned
Final Order and Judgment passed by the Honble
High Court of Bombay at Goa in Civil
168
Application Review No.11 of 2014 dated 20
th
March 2014.
2. That My son Mr.Vishal Gajanan Naik be
permitted to appear in person before this court
as my duly authorized representative/Power of
Attorney Holder to argue in the Special Leave
Petition at the time of hearing. The said
Special Power of attorney is annexed herewith
and marked as Annexure P/9 (Pages;170 to 176)
3. That I due to my health problems will not
be able to attend the day to day proceedings of
the Special Leave Petition.
4. That due to previous refusal to take up
the matter in the High Court by the High Court
Advocates and trying to mislead the petitioner,
the petitioner has not approached any advocate
as all the three advocates the petitioner
approached have misleaded the petitioner and
has also misleaded the Honble High Court.