Dismissed

Smt. Raquel Fernandes v. Smt. Leopoldina Mendonca Pereira (Deceased) through Lr'S

Bombay HC20 Apr 2009LPA/3/2009

Case brief

AI extract

What is this about?

The High Court dismissed the Letters Patent Appeal challenging the execution of a decree. The bench held that the appellant's claim to mundkarial rights, raised for the first time in execution proceedings, did not justify a reference to the Mamlatdar. The trial court's view that a married daughter is not entitled to such rights was accepted.

What did the court decide?

Letters Patent Appeal dismissed; no reference to Mamlatdar allowed.

Smt. Raquel Fernandes Vs Smt. Leopoldina Mendonca Pereira… — Partition | Bombay HC (2009)

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IN THE HIGH COURT OF BOMBAY AT GOA

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LETTER PATENT APPEAL NO. 3 OF 2009

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WRIT PETITION NO. 734 OF 2008

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SMT. RAQUEL FERNANDES Versus SMT. LEOPOLDINA MENDONCA PEREIRA (DECEASED) THROUGH LR'S

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... Appellant

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... Respondent

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Mr. A. F. Diniz, Advocate for the appellant. Mr. M. B. D'Costa, Senior Advocate with Mr. J. A. Lobo, Advocate for the respondents.

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Coram:B. P. DHARMADHIKARI & U. D. SALVI, JJ.

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Date:20th April, 2009

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P.C.

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Heard. The claim by the appellant is that the appellant being a member of the family of the deceased original occupant Anunciacao Rodrigues, she is the mundkar and the objections raised during the execution ought to have been referred to the Mamlatdar in terms of Section 32 of the Goa Mundkars (Protection from Eviction) Act, 1975 and the Rules framed thereunder. The provisions of Section 31, read with 32, as also Section 3 are relied upon in support thereof. The Judgments of this Court in the case of Shantaram Babani Xete Curtorkar and anr. vs. Vishnu Babani Xete Curtorkar and anr., reported at 1989(2) Goa Law Times (167) and in the case of Baburao Vishnu Naik vs. Ramchandra Vishnu Naik and anr., reported at 1989(1) Goa Law Times (175) are pressed into service for this purpose. The Judgment of the Hon'ble Apex Court in the case of Sushil Kumar Mehta vs. Gobind Ram Bohra (Dead) through his Lrs., reported at (1990) 1 SCC 193 is also relied upon to contend that there is no question of res judicata in this respect as the

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objection was raised for the first time in execution proceedings. The Judgment of the Supreme Court in Jiwani vs. Rajmata Basantika Devi, reported at 1993 DGLS (Soft.) 532 is also pressed into service to show that when one of the decree-holders is dead, the execution, as filed, should have been dismissed. Lastly, it is contended that one of the decree-holders was of unsound mind and no guardian ad litem was appointed for the said person.

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Learned Senior Counsel Mr. D'Costa, on the other hand, contends that in the Civil Court the status as mundkar was never raised and permanent licence was claimed. Evidence was brought on record and after the Civil Court delivered the Judgment, a regular civil appeal was filed before the District Court, which came to be dismissed. The issue was not taken further and the matter attained finality. He further states that there were inventory proceedings and in the said inventory proceedings, the suit property has fallen to the share of respondent No.1(d). He, therefore, contends that the challenges being raised are misconceived. He points out that the learned Single Judge has taken cognizance of the matter under Article 227 of the Constitution of India and, therefore, the letters patent appeal is not maintainable.

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We find that the writ petition was filed challenging the competence of the Civil Court to execute the decree by contending that unless and until there was a finding on the status of the petitioner as mundkar or otherwise, the matter could not have proceeded further. Thus, the petition filed was also under Article 226 of the Constitution of India. Grounds of attack in para 5 of petition also support this. The observation by the learned Single Judge that he was taking cognizance under Article 227 is of no assistance to the present respondents and cannot debar the appellant from filing the LPA, contending that the said exercise of jurisdiction by the learned Single Judge was not proper.

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The Judgment of the Hon'ble Apex Court in the case of Jiwani vs. Rajmata Basantika Devi (supra) considered the facts in which the execution application was filed under the signatures and verification of a person who was not alive on that day. In view of that fact, the Hon'ble Supreme Court held that the application as filed was non est and, hence, there was no question of permitting it to be signed by another decree-holder. The facts here are not on these lines. The ruling, therefore, has no application. Similarly, the judgment and decree obtained by the plaintiffs from the trial Court are in favour of a person allegedly of unsound mind and, hence that issue also cannot help the present appellant in the matter.

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In so far as question of status as mundkar is concerned, the appellant claims to be the adoptive daughter of Anunciacao. Mr. D'Costa tried to contend that amongst the Catholics, there is no any adoption and, therefore, the plea, as raised is itself unsustainable. The trial Court has not recorded any finding on the alleged case of adoption and Mr. Diniz has stated that the Court has proceeded as if the adoption is established. However, we do not find any finding to the effect that the Court has accepted such adoption. The plea that the appellant is a mundkar, is a mixed plea of law and facts. In evidence before the trial Court, the present appellant has claimed her ignorance about status of Anunciacao who was already dead. The trial Court has found that even if the adoption is presumed, the married daughter is not entitled to mundkarial rights. The findings of trial Court in paragraph 8 of its judgment dated 29.4.2000 clinch the issue. Merely by claiming to be mundkar for first time and that too in execution, in this background, does not make out any case for reference to Mamlatdar.

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In these backgrounds, the consideration of the controversy by the learned Single Judge in paragraph 11 of the impugned order cannot be said to be erroneous or perverse. The LPA is, therefore, dismissed.

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B. P. DHARMADHIKARI, J.

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U. D. SALVI, J.

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ssm.

Smt. Raquel Fernandes v. Smt. Leopoldina Mendonca Pereira (Deceased) through Lr'S

Case brief

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What did the court decide?

Smt. Raquel Fernandes v. Smt. Leopoldina Mendonca Pereira (Deceased) through Lr'S

Case brief

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