JUDGMENT - Dr. DA SILVA E.S., J.:—Can in a given proceeding instituted by the plaintiff against the original defendant for recovery of possession on the ground of illegal occupation of a dwelling house and whose claim of mundkarship raised under the Goa, Daman and Diu (Protection from Eviction of Mundkars) Act, 1971 (hereinafter called the Act of 1971) was negatived by the Mamlatdar, his widow who after his death was impleaded in the suit as a party/defendant raise on her own the plea of mundkarship again in the same proceedings by availing of the benefit of the wider definition of the concept of mundkar in the subsequent enactment, namely, the Goa, Daman and Diu (Protection from Eviction of Mundkars) Act, 1975 (hereinafter called the Act of 1975)? And is it permissible for the trial Judge to reframe the issue in the same proceedings or add a new issue containing the widow's plea of mundkarship when a similar one had been already answered against her late husband by the concerned authority and refer its adjudication to the competent Mamlatdar? These are the points which arise for determination in this revision. 2. The relevant facts of the case are that the petitioner had instituted a suit against the original deceased Narayan Ratwal for termination of licence given to him to occupy part of his house and peaceful possession of the suit house under his and his family's occupation. 3. The original defendant resisted the suit and claimed to be a mundkar of the premises under the provisions of the Act of 1971. Accordingly one issue was framed and a reference made to the Mamlatdar who by his order dated 11th November, 1972 decided that the deceased defendant was not a mundkar of the suit premises. The Civil suit which had been stayed after this issue was referred to the Mamlatdar was then fixed for trial but in the meantime Narayan expired on 5-12-1982. Thereupon the petitioner made an application dated 22-2-1983 to bring on record the heirs and legal representatives of the deceased Narayan namely his children and widow, Rukmini who is the respondent No. 4 in the petition. 4. Thereupon the petitioner made an application dated 22-2-1983 to bring on record the heirs and legal representatives of the deceased Narayan namely his children and widow, Rukmini who is the respondent No. 4 in the petition. 4. By order dated 15-2-1984 the Civil Judge holding that the widow of Narayan was a necessary party in the suit as she was the holder of the moiety right rejected the petitioner's prayer to bring her as the legal representative of Narayan and allowed the application as far as the children were concerned. In the aforesaid order the learned Judge observed that if the widow was to be brought on record as legal representative of her deceased husband this would amount to his bringing a necessary party on record through the back door. It may be mentioned at this stage that at no time Narayan had raised before the Court the question of non-joinder of necessary party by the plaintiff in respect of the suit filed by the petitioner against him only. The petitioner then filed a revision to the High Court against this order of the Civil Judge. However, at the time of hearing on the submission made by the learned Counsel for the respondents that the dismissal of the petitioner's application to bring on record the widow of the deceased had been based on the fact that she was not the legal representative of her late husband which position was entirely correct and since the widow of the original defendant was a necessary party nothing could prevent the petitioner from joining her as a party, giving at the same time an undertaking that, if such an application was made in the trial Court, the respondents would not oppose it, the learned Counsel for the petitioner submitted that in view of that statement, he would not press the revision application and accordingly withdrew the same so as to join the widow of the original defendant as defendant in the suit. Accordingly the application of the petitioner was granted and the revision petition allowed to be withdrawn. Accordingly the application of the petitioner was granted and the revision petition allowed to be withdrawn. Thereupon the petitioner moved an application before the trial Court stating that in view of the undertaking given on behalf of the defendants by their learned Counsel that they had no objection for the widow to be impleaded as party, as a matter of abundant caution, the petitioner wanted to add her as defendant in the suit. 5. This application although objected by the respondents was ultimately allowed by the trial Judge as a result whereof Rukmini was impleaded in the suit as defendant along with the children of Narayan. Rukmini then filed her written statement along with the other defendants wherein she raised a plea that she was mundkar and thereafter by application dated 19-9-1990 the defendants alleging that the issue of mundkarship referred to the Mamlatdar under the old Act of 1971 ceased to have any effect in view of the wider scope of the Act of 1975 which had repealed the old Act prayed that the issue of mundkarship raised by them, namely by Rukmini, be referred to the Mamlatdar under the new Act. Accordingly they moved the Court to reframe the issue as to whether the defendants were mundkars under the provisions of the Act of 1975 and refer it to the Mamlatdar for adjudication. It is this application which was objected by the petitioner which gave rise to the impugned order dated 11th December, 1990 whereby the learned Judge allowing the respondent's prayer reframed the issue of mundkarship added a new issue as to whether Rukmini was in possession of the suit house as mundkar and directed the said issue to be referred to the Mamlatdar for decision forthwith. 6. 6. Shri Coelho Pereira, learned Counsel for the petitioner, has made considerable grievance against the impugned order by contending that the learned Judge has exercised his jurisdiction illegally and/or with material irregularity since there was no question of reframing the issue of mundkarship and refer it to the Mamlatdar de novo once such issue had been already framed and adjudicated by the Mamlatdar in the year 1972, the matter being governed by the provisions of the General Clauses Act which, under its section 6, had safeguarded the provisions of the repealed Act, the reason why there was no scope for a fresh reference of the said issue to the Mamlatdar again. Shri Coelho Pereira submitted that the learned Judge has also acted with material irregularity when he ordered the reframing of the issue and referred it to the Mamlatdar on the ground that Rukmini was to be considered in the suit as a newly impleaded defendant. He contended that the fact of Rukmini being the holder of moiety right in respect of the assets of her husband, this circumstance could not change her status in law. With regard to her being also the legal representative of her husband after his death as far as his estate is concerned, he argued that this was the law which has been laid down by the Supreme Court and as such in the light of such declaration it should have been held that the application of the petitioner dated 22-2-1983 seeking to implead Rukmini as a legal representative of her deceased husband, along with her children were to be deemed as granted in its totality and in its correct perspective. 7. Shri Coelho Pereira has also urged that under the Act of 1971 mundkarship was not an heritable right and hence there was not even any question of Rukmini holding any moiety right to what he called a mere status (statutory protection) akin to statutory tenancy. Shri Coelho Pereira took strong exception to the circumstance that the learned Judge chose to reframe the issue mainly based on the fact that the fresh pleadings of the respondent were to be treated as new pleadings, distinct and separate from those already made by the original defendant. Shri Coelho Pereira took strong exception to the circumstance that the learned Judge chose to reframe the issue mainly based on the fact that the fresh pleadings of the respondent were to be treated as new pleadings, distinct and separate from those already made by the original defendant. Shri Coelho Pereira asserted that once the petitioner was able to establish that Rukmini as the widow of Narayan was also the legal representative of her deceased husband in her capacity of “meeira” the fact that this question of law was set at rest by the Supreme Court would necessarily had its effect on the issue framed by the trial Court and make it entirely redundant. In this respect he relied on the decision of the Supreme Court in (Custodian of Branches of Banco National Ultramarino v. Nalini Bai Naique)1, A.I.R. 1989 S.C. 1589, wherein it has been held that the concept of “legal representative” includes also persons who are not legal heirs but in spite of that represent the estate of the deceased. It was further held that the widow acquiring “meeira” rights under the Portuguese Law was representing the estate of her deceased husband. Their Lordships while dealing with this question have extensively observed that “the 'legal representative' as defined in Civil Procedure Code means a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued”. In the same decision it has been expressly emphasised that “the definition was inclusive in character and its scope was wide and it was not confined to legal heirs only and instead it stipulated a person who may or may not be heir, competent to inherit the property of the deceased but he should represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression “legal representative”. Under the Portuguese Law of inheritance (sic) a widow acquires “Meeira rights” according to which she gets half share in the estate left by her deceased husband. All such persons would be covered by the expression “legal representative”. Under the Portuguese Law of inheritance (sic) a widow acquires “Meeira rights” according to which she gets half share in the estate left by her deceased husband. Such widow therefore represented the estate of her deceased husband. This decision shows that the concept of “legal representative” is different and distinct from the concept of 'legal heir' and being so the very fact of the wife in her capacity of holder of moiety rights in respect of the assets of her husband during his lifetime necessarily representing also his estate after his death makes her no doubt a legal representative of that estate. The record shows that the petitioner by his application dated 22-2-1983 had applied to the trial Court after the death of Narayan that not only his children but also his widow should be brought on record as heirs and legal representatives of the deceased. This application of the petitioner had been strictly made under Order 22 of Civil Procedure Code. It is a fact that the trial Court order which rejected the prayer of the petitioner to implead his widow as legal representative was passed in the year 1984 while the ruling of the Supreme Court referred to above is of 1989. However, since under Article 141 of the Constitution the Supreme Court declares the law of the land it is obvious that the aforesaid ruling which has settled once for all the controversy with regard to the status of a widow in respect of the estate of her late husband holding her as the legal representative of such estate has to be followed and it is to be held that as of today the law declared by the Supreme Court is to the effect that the widow is necessarily the legal representative of the estate of her deceased husband irrespective of she being holder of moiety rights in the estate of her husband during his lifetime. 8. 8. Shri Usgaonkar, learned Counsel appearing for the respondents in his turn has joined issue with the stand taken by Shri Coelho Pereira by contending that once the order dated 15-2-1984 was challenged in revision before the High Court and the High Court by its order dated 6-9-1984 dismissed the application as withdrawn it follows that consequent upon that order the petitioner accepted the widow as a necessary party in the suit and agreed to join her as a defendant. Shri Usgaonkar urged that in view of the withdrawal of the revision and the application filed by the petitioner before the trial Court asking for permission to join Rukmini as a defendant and a necessary party to the suit it would not be possible now for him to plead that she was for all purposes the legal representative of her late husband. Shri Usgaonkar has further submitted that the suit had been originally filed by the petitioner only against her husband and if he was seeking for his eviction, it was obvious that the wife of Narayan was also a necessary party and should, have been joined in the suit as such. However, since Rukmini was joined in this capacity only at a later stage it is clear that she would be entitled to raise a fresh plea with regard to her status and it is exactly what she has done now. Hence a new issue in this respect was justified. But this contention of Shri Usgaonkar does not appear to be correct. If according to him Rukmini was a necessary party in the suit and the same was suffering ab initio from non-joinder of a necessary party because the suit had been instituted by the petitioner only against her deceased husband, the fact is that at no stage the original defendant raised the plea of non-joinder which plea he was supposed to raise well before the framing of the issues. There is no dispute that the original defendant has failed to do so and accordingly the only issue which he raised was the claim made by him that he was a mundkar protected by the Act of 1971. There is no dispute that the original defendant has failed to do so and accordingly the only issue which he raised was the claim made by him that he was a mundkar protected by the Act of 1971. Besides as it was contended by Shri Coelho Pereira the concept of mundkarship under the Act of 1971 was not an heritable right and therefore the question of Rukmini claiming moiety rights in respect of her husband being a protected mundkar would not or could not arise. However this question does not seem to be material or relevant to the present controversy which should be looked in a different angle and deals with another aspect of the matter which has been already set at rest by the highest judicial forum of the land. Further it is seen from the records that the petitioner has impleaded Rukmini as defendant by way of abundant caution only and consequent upon the undertaking given by the learned Counsel for the respondents in the revision application that they would not object the impleading of Rukmini as party in the suit. Accordingly the petitioner joined Rukmini not as necessary party in the suit but only as a defendant and a mere party in the proceedings. Therefore, the contention of Shri Usgaonkar that because the petitioner impleaded Rukmini as necessary party in the suit it would not lie in his mouth to plead that she is in fact the legal representative of her deceased husband sounds to be totally misconceived. Indeed the real question which poses for my consideration at this juncture is not whether Rukmini is the defendant or a necessary party in the suit but as to whether Rukmini who was made a party in the suit by the petitioner ceased to be, because she was impleaded as a defendant, the true legal representative of the original defendant who was her deceased husband there is no doubt that in view of the ruling of the Supreme Court referred to above, the widow of the original defendant irrespective of she being the holder of moiety rights has to be necessarily deemed as a legal representative of the estate of her late husband. Shri Usgaonkar while dealing with the effect of this decision cautioned that the ruling enables the petitioner to agitate the point again only before the Supreme Court once the matter is to be considered as settled both before the trial Court as well as before the High Court. Shri Usgaonkar has urged that once the petitioner withdrew the petition on the assumption that the respondent was 'Meeira' and necessary party he is now estopped from claiming afresh that she is the legal representative of the deceased and cannot therefore raise this point again before this High Court because he is bound by the earlier proceedings. He further contended that besides by allowing the petitioner to suscitate the controversy again in the High Court, this would amount to permit the petitioner to seek through the back door for review of the order of the trial Court which has held the widow of the original defendant as a necessary party in the suit and ruled that she was not his legal representative. The petitioner has, according to Shri Usgaonkar, agreed with this ruling of the trial Court and after withdrawing the revision application which has challenged the same decision applied to the Court for bringing the widow of Narayan as a necessary party thus making her as defendant in the suit. Reliance was placed by him on the decision of (The Nalagarh Dehati Co-operative Transport Society Ltd., Nalagarh v. Beli Ram)2, A.I.R. 1981 H. P. 1, wherein it has been held that in view of the Explanation to Rule 1 of Order 47 of Civil Procedure Code added by amendment of 1976, a subsequent decision of the Supreme Court or a larger Bench of the same Court taking a contrary view on the point covered by the judgment does not amount to a mistake or error apparent on the face of the record. Shri Usgaonkar urged that the order of the trial Court having been passed in the year 1984 it is thus obvious that the subsequent judgment of the Supreme Court delivered in 1989 which had taken a different or contrary view on the point covered by the trial Court's order is not a legal ground for the petitioner to obtain review of the same order. But, I am afraid once again Shri Usgaonkar seems to miss the exact point. But, I am afraid once again Shri Usgaonkar seems to miss the exact point. A bare look at the petition shows that it is not the case of the petitioner in this revision that the earlier order of the trial Court should be reviewed. The petitioner has merely challenged the fresh order of the trial Court which reframed an issue which has already been adjudicated by the competent authority with regard to the plea of the original defendant in the suit in which Rukmini, his widow, was subsequently impleaded. Upon his death the petitioner made an unsuccessful attempt to implead her as the legal representative of the deceased thus placing her in a position which would bind Rukmini to all the pleadings and the stand taken by her late husband. It is not disputed that on the respondents objecting this plea of the petitioner was negatived by the trial Judge who refused to allow the widow of the original defendant to be impleaded as his legal representative. It is also true that the revision filed by the petitioner against this refusal was withdrawn on the undertaking given by the respondents that they would permit Rukmini to be impleaded as defendant in the suit by claiming that she was a necessary party. On this undertaking the petitioner agreed to withdraw the revision and the High Court allowed this withdrawal to be effected after which the petitioner expressly prayed to the trial Court that Rukmini be impleaded as a defendant and party to the suit. Nowhere on the record it is seen that the petitioner has acknowledged the original defendant's widow Rukmini as a necessary party in the suit and his application only shows that Rukmini was impleaded in the suit as a mere party and defendant. To be noted also that at an earlier stage the original defendant at no time did raise the question of non-joinder of necessary party before the framing of the issues and as such this question of non-joinder is thus to be deemed as settled once for all. Therefore the circumstance of Rukmini having been made a party in the proceedings does not necessarily mean that her impleading in the suit as defendant has created any distinct and independent right for her to raise issues which the original defendant had pleaded and had been already adjudicated. Therefore the circumstance of Rukmini having been made a party in the proceedings does not necessarily mean that her impleading in the suit as defendant has created any distinct and independent right for her to raise issues which the original defendant had pleaded and had been already adjudicated. Further from a bare perusal of the order dated 6-9-1984 of the learned Single Judge allowing the petitioner to withdraw the revision application it is seen that there is no adjudication of any issue regarding the question as to whether the widow of the deceased original defendant was or not his legal representative. Shri Usgaonkar has fairly conceded this position and stated that the order of the High Court suggests that it has not actually given any finding on the point. Therefore the submission of Shri Usgaonkar that the ruling of the Supreme Court on the matter holding the widow of the deceased original defendant as the legal representative of his estate enables the petitioner to agitate this issue only before the Supreme Court and not before the High Court because such issue is deemed to have been sorted out also in that Court remains without substance. At the most it may be assumed that the petitioner is estopped from raising this issue again in the trial Court but certainly not before this Court. Being so and while challenging the order of the trial Judge whereby he has reframed the issue of mundkarship based on the fresh pleadings of the original defendant's widow, it is clear that the petitioner is free to argue this point before the High Court in revision against such order and no estoppel arises against such argument sought to be raised by the petitioner. 9. Shri Coelho Pereira has also contended that having regard to the nature of the order of the learned trial Judge holding Rukmini not as a legal representative of her deceased husband but instead as a necessary party to the suit the same is no doubt an order of the nature of an interlocutory one without any finality attached to it. This being the case obviously the hands of the petitioner are not tied when there is an occasion for him to challenge any order of the Court involving such issue even at a later stage. This being the case obviously the hands of the petitioner are not tied when there is an occasion for him to challenge any order of the Court involving such issue even at a later stage. Shri Coelho Pereira has placed reliance in support of this proposition on two decisions dealing with the principle of res judicata, being one reported in (Saryadhyan Ghosal others v. Smt. Deorajin Debi another)3, A.I.R. 1960 S.C. 941, wherein it is held that the principle of res judicata applies also as between two stages in the same litigation to the extent that a Court, whether the trial Court or a higher Court, having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings. However, at the same time, the Supreme Court posed the following question: “Does this however mean that because at an earlier stage of the litigation a Court has decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal did lie, a higher Court cannot at a later stage of the same litigation consider the matter again?” And in answer to this question, the Supreme Court a little further observed that: “there can be little doubt about the salutary effect of the rule as laid down in the above cases on the administration of justice. The very fact that in future litigation it will not be open to either of the parties to challenge, the correctness of the decision on a matter finally decided in a past litigation makes it important that in the earlier litigation the decision must be final in the strict sense of the term. When a Court has decided the matter it is certainly final as regards that Court. Should it always be treated as final in later stages of the proceeding in a higher Court which had not considered it at all merely on the ground that no appeal lay or no appeal was preferred? As was pointed out by the Privy Council in (Moheshur Singh's)4, 7 Moo Ind. App. Should it always be treated as final in later stages of the proceeding in a higher Court which had not considered it at all merely on the ground that no appeal lay or no appeal was preferred? As was pointed out by the Privy Council in (Moheshur Singh's)4, 7 Moo Ind. App. 283, the effect of the rule that at every stage of the litigation a decision not appealed from must be held to be finally decided even in respect of the superior Courts, will put on every litigant against whom an interlocutory order is decided, the burden of running to the higher Courts for redress of the grievance, even though it may very well be that, though the interlocutory order is against him, the final order will be in his favour and so it may not be necessary for him to go to the Appeal Court at all. Apart from the inevitable delay in the progress of the litigation that such a rule would cause, the interests of the other party to the litigation would also generally suffer by such repeated recourse to the higher courts in respect of every interlocutory order alleged to have been wrongly made. It is in recognition of the importance of preventing this mischief that the Legislature included in the Code of Civil Procedure from the very beginning a provision that in an appeal from a decree it will be open to a party to challenge the correctness of any interlocutory order which had not been appealed from but which has affected the decision of the case. 10. Similarly the Supreme Court in another decision cited by Shri Coelho Pereira, in (Arjun Singh v. Mohindra Kumar and others)5, A.I.R. 1964 S.C. 993, has reiterated the same stand and held that “interlocutory orders are of various kinds, which, by its nature, do not decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, as no finality is to be imparted to such orders which therefore do not operate as res judicata in subsequent applications”. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, as no finality is to be imparted to such orders which therefore do not operate as res judicata in subsequent applications”. Shri Usgaonkar did not dispute the proposition advanced by Shri Coelho Pereira that the order of the trial Court refusing to grant the petitioner's prayer to implead the widow of the original defendant as his legal representative and holding her as a necessary party in the suit is in the nature of an interlocutory order which by itself does not decide the issue concerning the merits of the suit or put an end to the litigation. If it is so, the submission of Shri Coelho Pereira that the circumstance of the order having not been legally challenged in the technical sense by the petitioner, either because no appeal was lying against such order or the revision filed against the same was later withdrawn, does not prevent him from raising the issue again while challenging the legality of the subsequent order of the trial Court reframing the issues is to be accepted as sound and well conceived. Hence the question of any res judicata does even arise and there could be also no case of a constructive estoppel debarring the petitioner to do so before this High Court irrespective of the order dated 6-9-1984 which allowed the withdrawal of the revision filed by him against the order of the trial Judge dated 15-2-1984. 11. It was further urged by Shri Usgaonkar that the concept of mundkar as per the Act of 1971 was narrower in relation to the definition of 'mundkar' in the Act of 1975. In fact the concept of 'mundkar' in the Act of 1971 was based on the old Portuguese Law being Diploma Legislative No. 1952 dated 26-11-1959. Section 2(e) of the Act of 1971 deals with the expression “mundkar” by saying that the same has the meaning assigned to it in Dip. Leg. In fact the concept of 'mundkar' in the Act of 1971 was based on the old Portuguese Law being Diploma Legislative No. 1952 dated 26-11-1959. Section 2(e) of the Act of 1971 deals with the expression “mundkar” by saying that the same has the meaning assigned to it in Dip. Leg. No. 1952, dated 26-11-1959, which in its Article 2 defines 'mundkar' as a person who lives with a fixed habitation or residence in a property belonging to the landlord mainly with the aim of cultivation or watch and ward and irrespective of the fact of the dwelling house where he lives having been built by himself at his own cost or at the cost of the landlord and also irrespective of he receiving any help either in cash or in kind from the landlord for the purpose of its construction. Against this definition the concept of 'mundkar' in the Act of 1975 is contained in its section 2(p) which defines 'mundkar' as it person who, with the consent of the batkar or the person acting or purporting to act on behalf of the batkar, lawfully resides with a fixed habitation in a dwelling house with or without obligation to render any service; to the batkar and includes a member of his family Shri Usgaonkar tried to impress upon that being the new Act a piece of beneficial legislation which is broadly widening the concept of 'mundkar' this benefit would have covered even the deceased original defendant himself, the late Narayan, in spite of the decision given against him during the pendency of the Act of 1971 and as such he would be able to avail of the same if he was still alive to the proceedings so as to take the plea of mundkarship again under the new Act of 1975. In support of the proposition regarding the availability of such plea either to the deceased original defendant or to respondent Rukmini Shri Usgaonkar has relied on the decision of this Court reported in (Shri Joseph Almeida another v. Shri Krishnanath Narayan Prabhu 3 others)6, 1990(1) Goa Law Times 251. This was a case which arose out of an application filed by the respondent No.1 in some proceedings instituted against him by the owner of the property where he was staying, under the Act of 1971, for a declaration that he was a mundkar. This was a case which arose out of an application filed by the respondent No.1 in some proceedings instituted against him by the owner of the property where he was staying, under the Act of 1971, for a declaration that he was a mundkar. The said application was instituted by him on 23rd February, 1972 before the Mamlatdar in terms of section 10 of that Act and while the application was pending the new Act of 1975 came into force. The Mamlatdar relying on the provisions of the new Act declared the respondent No. 1 as a mundkar. The owner of the property challenged this decision without any success in various forums by appealing to the Collector, thereafter filing a revision to the Tribunal and even approaching this High Court in a writ petition filed under Article 226 before the learned Single Judge. However, in Second Appeal being Letters Patent Appeal a Division Bench of this Court reversed the decision of the Mamlatdar and held that since the rights and liabilities of the parties pending before the Mamlatdar were governed by the old Act the circumstance of the new Act coming into force subsequently, the definition of 'mundkar' contained in the new Act was not available to him. But at the same time the learned Judges cautioned that they were allowing the appeal only on this limited ground and for the limited purpose of laying down the correct legal position on the matter expressly making it clear that a second application claiming his right under the Explanation to section 2(p) of the new Act would not be barred. Shri Usgaonkar has taken great pain to explain that this ruling clearly implies that Rukmini was thus free to raise afresh the plea of mundkarship under the new Act after her impleading in the suit by the petitioner. He also cited two more rulings of this Court, being one in (Joao Rosario Rego through L.Rs. another v. Graciano C. Rego others)7, 1989(1) Goa Law Times 22 and the other in (Shantaram Babani Xete Curtorkar another v. Vishnu Babani Xete Curtorkar another)8, 1989(2) Goa Law Times 167. He also cited two more rulings of this Court, being one in (Joao Rosario Rego through L.Rs. another v. Graciano C. Rego others)7, 1989(1) Goa Law Times 22 and the other in (Shantaram Babani Xete Curtorkar another v. Vishnu Babani Xete Curtorkar another)8, 1989(2) Goa Law Times 167. But apart from the circumstance that both these rulings are entirely distinguishable as based on facts which did not occur in this case, the earlier ruling reported in 1990(1) Goa Law Times 251 appears to be of no help to the respondents to the extent that the said decision suggests that although Rukmini is free to raise the plea of mundkarship on her own under the new Act, however, it would not be permissible for her to get any adjudication in proceedings wherein she is to be deemed as taken part as legal representative of her deceased husband of the same issue already answered by the Mamlatdar against the original defendant in the suit. At this stage we must observe that the real question which lies before this Court is not whether Rukmini is able to plead on her own that she herself is a mundkar but whether in the facts and circumstances of the case the said Rukmini who was impleaded in the suit as defendant in her capacity of legal representative of her deceased husband can reopen an issue which was adjudicated by the concerned authority with regard to the plea of mundkarship already raised by the late original defendant. In my judgment this question has been clearly answered in the negative by the aforesaid decision reported in 1990(1) Goa Law Times 251 which has held that in view of section 41(c) of the Mundkar Act of 1975 the rights and liabilities of parties in proceedings pending under the Mundkar Act of 1971 are governed by the provisions of the same Act of 1971 and the provisions of the Act of 1975 are not applicable to such cases and also that under Clauses (c) and (e) of section 6 of the General Clauses Act, 1897 made applicable to Goa by the Goa, Daman and Diu General Clauses Act, 1965 all rights and privileges arising under the repealed law are saved. This being the position the argument of Shri Usgaonkar that the new Act besides widening the concept of the definition of mundkar has conferred new rights to them namely the right to purchase the land wherein his dwelling house is situated and the land around and that the mundkarship has been made a heritable right seems to be of no relevance in this particular context, apart from the fact that as per the old Act of 1971 which finds no change in the new Act of 1975 it does not appear that mundkarship is a right or ceased to be a status although of late it is a status conferring certain rights which are expressly provided in the new enactment. 12. The next submission of Shri Coelho Pereira is that the Act of 1975 has been enacted to provide better protection to mundkars. The question which therefore arises is what are the petitioner's rights under the new Act of 1975 in respect of the suit filed by him during the pendency of the old Act of 1971. It was contended by Shri Coelho Pereira in this regard that once the original defendant and the late husband of Rukmini has pleaded that he was a mundkar in relation of the suit premises and this issue having been referred to the Mamlatdar, the same plea was, rejected, the question of his widow taking again a similar plea and being declared as mundkar in relation to the same premises in her capacity of his legal representative does not seem to arise at all. Obviously Rukmini although a party in the suit and impleaded as defendant in such suit does not cease to be the legal representative of the original defendant and she cannot claim a different or distinct right of her own or seek any protection under the new Act of 1975 for the purpose of a fresh adjudication of the renewed plea of mundkarship claimed by her. Shri Coelho Pereira has usefully invited my attention to section 41 of the new Act which is a repealing and saving provision and its Clause (c) expressly provides that from the day the said new Act comes into force the old Act shall stand repealed and the provisions of sections 6 and 24 of the General Clauses Act, 1897 as applied to the Union territory of Goa, Daman and Diu, by the Goa, Daman and Diu General Clauses Act, 1965 shall apply to such repeal. This provision therefore unmistakably protects the rights conferred to the petitioner under the old Act insofar as the civil proceedings are concerned. Thus the question of Rukmini availing of wider rights conferred by the Mundkar Act of 1975 should not come in the way of the rights of the petitioner under the above mentioned saving provision contained in the New Act. It follows therefore that no issue of mundkarship can be pleaded or got adjudicated by Rukmini in the proceedings instituted by the petitioner under the old Act against her deceased husband wherein this issue was already decided by the Mamlatdar and after his death Rukmini has been made a party in the suit although shown as defendant in her capacity of legal representative of the original late defendant. Hence the order of the learned trial Judge reframing the issue in the same proceedings on the strength of the pleadings made by Rukmini and her children after their impleadment in the suit are to be held as wrong, misconceived and lacking any foundation either in facts or in law. In fact since Rukmini was not able to plead mundkarship in these proceedings afresh as a legal representative of her deceased husband after he was declared a non-mundkar in relation to the suit premises by the competent authority there was no scope for the learned trial Judge to frame a new issue in this regard so as to refer its adjudication again to the concerned Mamlatdar. 13. The only question which now sets for consideration is to whether the widow of a defendant in proceedings wherein the deceased original defendant has raised a plea of mundkarship which was rejected by the concerned authority has an independent right to seek afresh a similar declaration in her favour. 13. The only question which now sets for consideration is to whether the widow of a defendant in proceedings wherein the deceased original defendant has raised a plea of mundkarship which was rejected by the concerned authority has an independent right to seek afresh a similar declaration in her favour. In the instant case we have seen that the deceased Narayan against whom the petitioner filed the suit for recovery of possession of a portion of the suit house occupied by him along with his wife and the rest of his family on the ground of termination of licence, contested the same without raising any question of non-joinder of necessary party and instead put up his defence plea by claiming merely a case of mundkarship and protection under the provisions of the Act of 1971. Admittedly this plea was negatived by the Mamlatdar and the proceedings which had been stayed for the purpose of adjudication of the issue were set on for its normal hearing. It was at this stage that his death occurred upon which Rukmini and his children were impleaded in the suit obviously in their capacity of legal representatives of the original defendant. 14. The arguments raised by Rukmini against her being treated as the legal representative of her deceased husband in the suit when she was the holder of moiety rights in respect of Narayan's assets were duly considered and answered in the earlier paras and what really is left now from the entire controversy is whether, in the peculiar circumstances of the case, a separate plea of mundkarship of her own is available to Rukmini even assuming that she is an independent party in the suit and is not taking part in the proceedings merely as legal representative of her deceased husband. But still my answer to this query is frankly No. 15. It is true that this specific question was not raised by any of the parties during the course of the arguments advanced by their learned Counsel but it is evident that in the context of the issues placed for determination in this case the point invites considerable relevancy being therefore decisive and very material for the proper adjudication of this petition. We have to see that we are dealing with the widow of the original defendant who is claiming to be the holder of a moiety right to the estate of her deceased husband. According to the prevailing matrimonial laws in force in this State in the absence of an ante-nuptial agreement stipulating the rights of the parties each spouse communicates on marriage the right to half of the share in the estate of the other spouse. This is what is known as 'regime of communion of assets' (regime de comunhao de bens) which is the regime applied in case of a conjugal society which is constituted between the spouses without prior stipulation of any other mode or type of legally available regimes to be adopted in respect of their matrimonial rights in the society. This regime affects not only the properties which were already existing at the time of the marriage and belonging to each of the spouses when the society was formed but even the ones brought to the fold of the society or are acquired after the marriage. 16. It follows therefore that when a married couple holds property in common none of the spouses can freely transfer or dispose of his or her undivided share in the common pool with regard to the properties and the assets which constitute their estate differently as it happens in case of joint possession held by common owners. This peculiar position stands because the law visualises in this case a situation in which a married couple holds their property as one unit which is legally indivisible although physically partitionable only when a judicial declaration is obtained by any of the spouses, through a Court decree, that they are legally separated. In short, the legal and factual position in respect of a married couple which is subject to the matrimonial laws in force in this State so far their matrimonial rights are concerned is that neither the husband or the wife can sell, alienate or even mortgage his or her undivided share or right of moiety in detriment of the national unity of their conjugal assets. This being the case it is only fair and just that a widow of a deceased defendant who in a litigation instituted against him had taken a plea that he was a mundkar in relation to the dwelling house where he was living with his wife and children and whose possession was sought to be recovered by its owner, which plea has not been accepted as good and valid by the competent authority, should not be allowed to freshly raise a similar plea in respect of the same dwelling house which admittedly makes part of the common assets of the married couple And there is no doubt that apart from the fact that such plea is not available to her it should not be also permissible to the surviving spouse to raise again the issue of mundkarship in the same proceedings wherein a similar plea was already negativated by the competent authority thus safeguarding the principle of public interest policy which aims at protecting the very finality of the judicial orders. On the other hand since mundkarship is, as it was already seen earlier, not a right by itself but merely a status to which the Act of 1975 has conferred certain rights, namely the right given to the mundkar to be protected against eviction and the right to purchase his dwelling house as well as the land around it should be understood, under the same principle of public interest policy, when a husband claims the status of mundkar and the rights attached thereto that he puts up this claim also on behalf of his wife and the rest of his family living along with him in the same dwelling house and that therefore constructively such plea becomes a plea raised on behalf of the other spouse and the remaining members of the family dependent on him. This is the view taken by my learned brother (Kamat, J.) in an unreported judgment in (Smt. Zoirambi Muzawar v. Shri Cirilo Antonio Conceicao Heitor Peres others)9, Civil Revision Application No. 173/90 sitting as Single Judge of this Bench and I am in respectful agreement with him. This is the view taken by my learned brother (Kamat, J.) in an unreported judgment in (Smt. Zoirambi Muzawar v. Shri Cirilo Antonio Conceicao Heitor Peres others)9, Civil Revision Application No. 173/90 sitting as Single Judge of this Bench and I am in respectful agreement with him. However, this being a broad proposition laid down in the aforesaid case, based on facts, it remains to be seen whether this proposition is still valid even when the adjudication of the claim of mundkarship raised by the deceased husband was done under the provisions of the old Act and wherein the concept of 'mundkarship' was narrower against the wider definition of “mundkar” provided by the new Act of 1975. But on a mature consideration of the problem, I am unable to persuade myself, that there should be a different answer to this query in the present case. It is indeed an undisputed fact that the concept of 'mundkar' and its enunciation appears to be in the new Act much more liberal and beneficial to the occupants of the dwelling houses since the element of watch and ward has been removed from this definition as required under the old Act. It is also true that in the instant case the plea of mundkarship raised by the deceased husband of Rukmini was rejected because no proof was brought on record that he or his family members were occupying the suit premises for the purpose of watch and ward. There is also little doubt that if the adjudication of this plea had been done under the new Act the issue might have been answered differently and in favour of the original defendant. If it is so a question arises as to whether the original defendant Narayan during the pendency of the proceedings could be debarred from raising the issue against under the new Act. If the reply is in the negative why cannot his widow claim or avail of this benefit provided to her deceased husband in view of the wider definition of the concept of 'mundkar' in the new Act? However, in order to enable us to find the correct answer to these questions we must conveniently consider the special features of this exceptionally protracted litigation which is being dragged for one reason or the other, but certainly not due to any fault on the part of the petitioner, for about 20 years. However, in order to enable us to find the correct answer to these questions we must conveniently consider the special features of this exceptionally protracted litigation which is being dragged for one reason or the other, but certainly not due to any fault on the part of the petitioner, for about 20 years. In this context one should not overlook at the very outset that the suit was instituted by the petitioner in 1971 and that the original defendant contested it immediately in the same year. At that time or even at a later stage no specific plea regarding non-joinder of his wife Rukmini as a necessary party in the suit was raised by him till the issues were framed and his main defence was based on the mere claim of mundkarship in relation to the suit dwelling house. It is an admitted position that this plea rejected by the Mamlatdar in the year 1972 on the strength of the relevant provisions of the old Act, but the fact remains that after the original defendant failed to challenge the decision of the concerned authority rejecting his plea Narayan did not bother to raise again the issue of mundkarship under the new Act for a period of more than 10 years during which the proceedings were being heard in the trial Court till his death occurred in the year 1982 in spite of this Act having come into force in 1975. 17. We are therefore inclined to presume that Narayan was fully aware that the Act of 1975 was not applicable to him after he had been declared a non-mundkar because the new enactment was meant to give better protection to mundkars only and he did not even sought a fresh adjudication of the issue of mundkarship under the new Act. 17. We are therefore inclined to presume that Narayan was fully aware that the Act of 1975 was not applicable to him after he had been declared a non-mundkar because the new enactment was meant to give better protection to mundkars only and he did not even sought a fresh adjudication of the issue of mundkarship under the new Act. Being so not only because whatever pleas or stand taken by Narayan in the proceedings are to be deemed as raised or asserted by him on behalf of his wife Rukmini but also because on the other hand the subsequent conduct of Narayan in respect of his earlier claim is to be deemed as amounting to a constructive estoppel which disentitled him to the eventual protection provided by the new Act, the question of Rukmini raising now belatedly after his death a fresh plea of mundkarship in relation to the same dwelling house in respect whereof the earlier claim of her deceased husband was rejected cannot and would not lie at all either on the strength of the principle of public interest policy or at least for the sake of fairness and equity. And it is obvious that no consideration of any construction regarding liberal application of a beneficial legislation can come to Rukmini's rescue in the case when the law itself, apart justice and morality, does not also make available for her the benefit sought to be secured only now on the basis of sheer technicalities and legal niceties which seem to me devoid of any substance or merit and are bound to render the real justice in this case an absolute casualty. As I see it the order of the learned Judge reframing the issues on the strength of the pleas of the respondents and adding the impugned issue concerning mundkarship claimed by Rukmini for the purpose of referring it to the Mamlatdar for proper adjudication is no doubt a patently wrong and bad order and a clear exercise of jurisdictional error. It is thus clear that the learned Judge has improperly exercised his jurisdiction while making the same with material irregularity and/or in excess of it. 18. In this view of the matter the petition is to succeed and is hereby allowed with costs by the respondents. It is thus clear that the learned Judge has improperly exercised his jurisdiction while making the same with material irregularity and/or in excess of it. 18. In this view of the matter the petition is to succeed and is hereby allowed with costs by the respondents. The order dated 11th December, 1990 is quashed and set aside and the learned trial Judge directed to expedite the hearing of the suit and dispose it of positively within six months from today. Rule made absolute in the above terms. Petition allowed. -----