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2010 DIGILAW 874 (BOM)

Connie Miranda v. Antonio Joaquim Gracias

2010-06-25

F.M.REIS

body2010
JUDGMENT :- This appeal challenges the order dated 16th August, 2008 passed by the IIIrd Additional Civil Judge, Senior Division, Margao, in Inventory Proceedings No.178/ 2003-ADDL.III. There is no dispute that the inventory proceedings were initiated in the year 2003 to partition the estate of the deceased Brian Hilary Gracias, who expired without any descendants and consequently the Respondent herein being the ascendant were entitled to his assets. The Appellant is the widow of the said deceased. As per the law in force, the Appellant as moiety sharer is entitled to half share in the assets of the couple, while the remaining half devolves upon the Respondent. It is reported that the said inventory proceedings came to be disposed on 29th January, 1998. Thereafter, in March, 2003, additional inventory proceedings came to be filed in view of the fact that some of the assets had not been partitioned. In the said proceedings, an application was filed by the Respondent dated 17.02.2007 giving the correct description as far as item no.2 is concerned. The Appellants filed their reply to the said application on 15.3.2007 disputing the contentions of the Respondents. On 16.8.2008, an order was passed allowing the application at Exhibit B and directed the Appellant to deposit half of the amount of item no.2. Thereafter, the Appellant preferred a review to the said order dated 16.8.2008 by an application dated 17.11.2008 and the same came to be dismissed by order dated 6.3.2009. The present appeal has been filed to challenge the impugned order passed by the Inventory Court dated 16.8.2008, whereby the Appellant was inter alia directed to deposit 50 percent i.e. half of the amount received with regard to the said item no.2. 2. The Learned Counsel appearing for the Appellant has submitted that until and unless the inventory proceedings were disposed of, the Trial Judge has no jurisdiction to direct the Appellant to deposit half of the amount received by the Appellant. He submitted that an application was filed by the Appellant under Article 1383 of the Portuguese Civil Procedure Code claiming exclusive ownership of the said item no.2 and the same was not disposed by the learned Trial Judge at the time of passing the impugned order. He submitted that an application was filed by the Appellant under Article 1383 of the Portuguese Civil Procedure Code claiming exclusive ownership of the said item no.2 and the same was not disposed by the learned Trial Judge at the time of passing the impugned order. He further submitted that the learned Trial Judge refused to pass an order on the said application on the ground that the impugned order had already been passed directing the Appellant to deposit half of the amount of the item no.2. The learned Counsel has further submitted that the item no.2 is an amount received on account of an insurance policy claim under a fatal accident which occurred in London and, as such, the same cannot be a part of the assets in the said inventory proceedings. He further submitted that the Respondent has no right at all to the said item which has been received by the Appellant, as it belongs to the Appellant and has accrued after the date of the opening of the inheritance. 3. On the other hand the Learned Senior Counsel appearing for the Respondent has submitted that the Inventory Court has powers to pass orders and take measures to protect the assets of the estate during the pendency of the inventory proceedings. The learned Senior Counsel further submitted that the impugned order is in a nature of an attachment as permitted under the Portuguese Civil Procedure Code for safe custody of the assets during the pendency of the inventory proceedings. He further submitted that the application under Article 1383 is not maintainable and as such, the question of considering the said application at this belated stage does not arise at all. He further brought to the notice of the Court that the order was passed on 16.08.2008 and the Appellant failed to comply with the said order up to this date and, as such, the question of granting any relief to the Appellant does not arise. 4. The learned Senior Counsel further submitted that the Appellant has accepted at the time of disposal of the inventory proceedings that the said item no.2 forms part of the asset in the inventory proceedings. 5. 4. The learned Senior Counsel further submitted that the Appellant has accepted at the time of disposal of the inventory proceedings that the said item no.2 forms part of the asset in the inventory proceedings. 5. In reply, the learned Counsel for the Appellant has submitted that during the pendency of the present appeal, an order was passed by the Inventory Court whereby half share of the Appellant in some premises were ordered to be attached. He further stated that in view of the statement recorded at the instance of the Learned Counsel of the Respondent by this Court no further steps were taken to implement the order passed on 8.10.2009. He further submitted that as such the Respondent is adequately protected. 6. After hearing the learned Counsel and on perusal of the records, I find that the learned Counsel for the Appellant is not justified to contend that the Inventory Court has no powers to pass Orders during the pendency of the Inventory Proceedings to safeguard the interest of the parties in the estate left behind by the deceased. Article 2010 of the Portuguese Civil Code provides that when there is just apprehension that the moveable properties of the estate may be lost, any judicial authority may, upon the application of any of the parties or of the general curator and even ex-officio, order the sealing, as prescribed in the Code of Civil Procedure. 7. Article 405 of the Portuguese Civil Procedure Code provides as under: "When a person has just fear that anybody may commit violence or commit facts susceptible of ensuing grave damage and of difficult reparation to his right, can apply for measures that are adequate to avoid the damage such as possession, sequestration or the deposit of the thing under dispute, for the prohibition or the authorisation of certain acts." Article 434 of the Portuguese Civil Procedure Code provides as under: "When Inventory Proceedings are to be instituted, shall be appointed as receiver in person to whom belongs the duty of the administrator, (cabeca de casal) of the items enlisted. In other cases, the receiver shall be the possessor himself or detainer of the asset, except if there is a manifest inconvenience to the assets being handed over to him." 8. In other cases, the receiver shall be the possessor himself or detainer of the asset, except if there is a manifest inconvenience to the assets being handed over to him." 8. Considering the said provisions of law there can be no doubt that for the purpose of avoiding reparation or safeguarding the asset during the pendency of the Inventory Proceedings, the Inventory Court has powers to take such measures for the purpose of protecting the assets of the deceased subject to the adjudication in the Inventory Proceedings. Such measures can even be exercised either as preparatory or doing the continuation of the Inventory Proceedings. In the present case, considering the claim of the Respondents that the Appellant had recovered an amount which the Respondents claimed to be part of the inheritance left behind by this deceased, the Inventory Court was justified that the said amount be deposited in the Court so that the same can be protected for distribution in accordance with the final Order which shall be passed in such proceedings. 9. It cannot be disputed that in case any interested party claims that such an asset does not form part of the estate left behind by the deceased, he is entitled to file an appropriate application under Article 1383 of the Portuguese Civil Procedure Code for the purpose of excluding such asset as the same does not belong to the estate of the deceased. In case such an application is filed, the dispute shall be decided after hearing the Administrator or the person who described the properties, if different and after evidence is led and necessary information is obtained, pass appropriate orders with regards to such contentions. From the records and considering the submissions of the learned Counsel, I find that the application filed by the appellant under Article 1383 of the Portuguese Civil Procedure Code was not considered by the Inventory Court in accordance with the procedure laid down therein. As such, the learned Trial Judge was not justified in refusing to consider the application of the Appellant to exclude the said asset from the list of assets filed in the Inventory Proceedings merely because the impugned Order had already been passed. The learned Counsel for the Appellants submit that an additional application under Article 1383 of the Portuguese Civil Procedure Code shall be filed within six weeks from today. The learned Counsel for the Appellants submit that an additional application under Article 1383 of the Portuguese Civil Procedure Code shall be filed within six weeks from today. It would, therefore, be just and appropriate that the Inventory Court should decide such application after complying with the provisions of law as contemplated in Article 1383 of the Portuguese Civil Procedure Code. 10. From the records I find that the impugned Order was passed on 16.08.2008, the Appellants on some pretext or other, have failed to comply with the said orders up to this date. Even the attachment order by the learned Trial Judge has not been complied with in view of a statement made by the learned Counsel appearing for the Respondents. Considering the submissions of the learned Counsel for the Appellant that the amount is duly secured in case the order on attachment is implemented, I find that apart from such attachment, the Appellant should be directed to deposit in the Inventory Court a sum of Rs.5,00,000/- without prejudice to the rights and contentions of the parties. Such Order shall be in the interest of the parties to ensure that no prejudice is caused to the Respondents in case the amount received by the Appellant is held to be part of the estate left behind by the deceased. 11. In view of the above, I pass the following: ORDER (a) The impugned Order dated 16.08.2008 is modified and the Appellant is directed to deposit in the Inventory Court a sum of Rs.5,00,000/- within 8 weeks from today which shall be invested in a Nationalised Bank initially for a period of one year. (b) The Inventory Court is directed to effect the attachment as directed by Order dated 08.10.2009 in accordance with law. (c) After complying with the directions referred to at Paras (a) and (b) hereinabove, the Inventory Court shall consider the Application under Article 1383 of the Portuguese Civil Procedure Code for exclusion of item no.2. (d) All the contentions raised by both the parties are kept open. The deposit and attachment referred to at Paras 11(a) and 11 (b) herein above shall be without prejudice to the rights and contentions of the parties and subject to further orders to be passed in the Inventory Proceedings. (d) All the contentions raised by both the parties are kept open. The deposit and attachment referred to at Paras 11(a) and 11 (b) herein above shall be without prejudice to the rights and contentions of the parties and subject to further orders to be passed in the Inventory Proceedings. (e) The said application shall be disposed of by the Inventory Court as expeditiously as possible and in any event within a period of six months from the date of filing of such application in accordance with law. (f) The Appeal stands disposed of accordingly. Ordered accordingly.