Partly allowed

Mr. Fidelis Caetano Teodomiro Filomeno Da Costa @ Fidelis Da Costa and Anr., v. Mrs. Piedade Costa @ Patsy Da Costa and 6 Ors.

Bombay HC11 Feb 2014WP/739/2013

Case brief

AI extract

What is this about?

In inventory partition proceedings, the High Court rejected valuation reports prepared by an engineer without noticing interested parties and failing to record the presence of residents. The court directed fresh valuation after proper notice and dismissed the request for valuer cross-examination.

What did the court decide?

Valuation reports rejected; fresh valuation ordered with notice; inventory proceedings to be disposed of within 8 months.

Mr. Fidelis Caetano Teodomiro Filomeno Da Costa @ Fidelis Da Costa… — Partition | Bombay HC (2014)

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1 WP 739/13

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 739 OF 2013.

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Mr. Fidelis Caetano Teodomiro

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Filomeno da Costa alias Fidelis

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da Costa, son of late Placido Joao

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Joaquim Santo Aleixo da Costa,

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Major of age, married, retired, and his wife,

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Mrs. Sergia Pereira e Costa,

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Major of age, housewife,

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Acsona, Benaulim, Salcete, Goa. … Petitioners.

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versus

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Mrs. Piedade Costa

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Alias Patsy da Costa,

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Widow of Roque Antonio

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Ricardo da Costa,

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aged 57 years, housewife,

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Mr. Placido da Costa, Son of late Roque Antonio Ricardo da Costa, aged 33 years, married, service, and his wife,

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Mrs. Melisa da Costa, Aged 27 years, housewife,

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Mr. Schubert da Costa, Son of late Roque Antonio Ricardo da Costa, aged 30 years, Unmarried, service,

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Mr. Ryan da Costa, Son of Roque Antonio Ricardo da Costa, aged 25 years, unmarried, service, all resident at H. No.1267, Anvottem, Curtorim, Salcete, Goa.

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Mrs. Crescencia da Costa

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2 WP 739/13 Fernandes, wife of Caetano Fernandes, aged 74 years, Married, housewife, and her husband,

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Mr. Caetano Fernandes, Son of late Militao Fernandes, Aged 86 years, retired, Both resident at H. No. 208, Senaulim, Verna, Salcete, Goa. … Respondents.

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Mr. R. G. Ramani, Advocate for the petitioners.

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Mr. M. B, D'Costa, Senior Advocate with Ms. K. Betquecar, Advocate for the respondents.

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Coram:-U. V. BAKRE, J.

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Date:- 11th February, 2014

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Oral Judgment:

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Heard Mr. Ramani, learned Counsel appearing on behalf of the petitioners and Mr. D'Costa, learned Senior Counsel appearing on behalf of the respondents.

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2 . Rule. Rule made returnable and heard forthwith.

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By this petition, the petitioners have taken exception to the judgment and order dated 27/09/2013 passed by the learned District Judge-II, South Goa at Margao (First Appellate Court) in Miscellaneous Civil Appeal No. 93/2013.

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3 WP 739/13

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4 . Upon the expiry of Placido Joao Joaquim Santo Aleixo da Costa, his son, the petitioner no.1, initiated Inventory Proceedings No. 98/1983/E, in the Court of Civil Judge, Junior Division at Margao (Trial Court) to get the estate of the deceased partitioned. In the said Inventory Proceedings, the widow of the deceased namely Delfina Isabel Braganza e Costa was appointed as Cabeca de Casal but as she was old and unable to discharge the duties of Cabeca de Casal, the petitioner no.1 came to be appointed as Cabeca de Casal. The said Delfina Isabel Braganza e Costa died on 05/06/1994. It appears that in the year 2003, an Engineer namely Mr. Mahendra S. Kakule was appointed as Commissioner to prepare valuation reports in respect of the immovable properties which were enlisted in the list of assets. On 30/11/2012, the petitioner no. 1, as Head of the Family, filed the list of assets. On 07/01/2013, the respondents filed objections to the said list of immovables/movables filed by the petitioner no.1. By Order dated 04/02/2013, the Trial Court dismissed the said objections and confirmed the list of assets. Subsequently, the same Engineer Shri Mahendra S. Kakule, at the instance of the learned Trial Court, prepared fresh Valuation Reports dated 26/03/2013 in respect of the three immovable properties, enlisted in the list of assets. On 22/07/2013, the respondents filed their Say/objections to the Valuation Reports dated 26/03/2013.

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4 WP 739/13

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In their objections, the respondents alleged that no notice of inspection was issued by the Valuer to the interested parties and that no personal site inspection was done by the valuer. It was further alleged that it is not known as to who identified the properties to the valuer. It was further alleged that the interested parties namely Piedade Costa alias Patsy da Costa resides in the ancestral house no. 1267 located in the property under Survey No. 105/9 of village Curtorim along with her children and since the time of the death of the estate leaver, it is the husband of the said interested party, late Roque Antonio Ricardo da Costa with the interested party Piedade Costa and her children have carried out annual maintenance and repairs to the ancestral house and also done improvements and renovation to the same. It was alleged that the said facts could not be brought to the notice of the Valuer in view of the absence of inspection and therefore, great injustice as such is caused to the interested parties. It was, therefore, prayed that the Valuer be called to explain the objections and the interested parties be permitted to cross-examine the Valuer on his reports.

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The Cabeca de Casal endorsed his objection on the said say/objections on the ground that the same are filed beyond limitation period.

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WP 739/13

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7 . By order dated 28/08/2013, the learned Trial Court dismissed the said objections. The Trial Court observed that the Valuer had earlier visited the property long back in the year 2003 with the interested party and therefore, there was no necessity to identify the property. It was further held that since the interested party did not object to the list of assets, the alleged improvements done by the interested party were not asked to be valued. It was further observed that the house was not valued as the Valuer was asked to value only the property and not the house. It was also held that the valuation cannot be termed as exorbitant since it was as on 1975. The Trial Court observed that the list of assets was filed long back on 16/09/2011 and hence the objections regarding valuation not being carried out to the house are belated and beyond limitation period and cannot be taken into account.

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The respondents challenged the said Order dated 28/08/2013 by way of Miscellaneous Civil Appeal No. 93/2013 before the First Appellate Court which upheld the objections raised by the respondents and called upon the Valuer for cross-examination on the said three reports dated 26/03/2013. The said order is impugned in the present petition.

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Mr. Ramani, learned Counsel appearing on behalf of the petitioners submitted that the respondents had not raised any

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6 WP 739/13

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objections regarding improvements carried out to the house within the time prescribed. He pointed out that the list of assets was filed by the Cabeca de Casal on 30/11/2012. He, therefore, submitted that the respondents are not entitled to make any claim on the basis of alleged improvements. He further submitted that the valuation was as of 1975 and that this is only an upset value for the purpose of holding auction. He submitted that in the year 2003 when the same Commissioner (valuer) had done the valuation, no objections were raised. He further submitted that in terms of Article 1379 of the Portuguese Code of Civil Procedure, once the list of properties are submitted, 48 hours are given to the interested parties for inspection and examination and it is during that period of examination or inspection, the parties had to raise objection if the existence of the property etc. is denied. He submitted that nothing regarding improvements was stated within the prescribed time limit though the list of assets was filed on 30/11/2012. He invited my attention to Article 1432 of the Portuguese Code of Civil Procedure and submitted that the fresh appraisal cannot be allowed unless there is serious reason to believe that the value of the property had changed. He submitted that there is no provision of law permitting cross-examination of the Valuer and that even otherwise nothing could come out of the cross-examination.

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On the other hand, Mr. D'Costa, learned Senior Counsel

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7 WP 739/13

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appearing on behalf of the respondents invited my attention to the valuation reports dated 26/03/2013 and pointed out that there is no mention in these reports that notice in respect of the inspection was given to any of the interested parties. He submitted that one of the interested parties resides in the ancestral house situated in one of the properties and it is surprising that without knowledge of the inmates of the house, the Valuer could give particulars of the internal parts of the said residential house. He submitted that there is a false declaration made by the Valuer that he had personally inspected the property on 09/03/2013. The learned Senior Counsel invited my attention to Article 2097 of the Portuguese Civil Code and submitted that the improvements are bound to be valued. He further submitted that though the interested parties have carried out improvements to their ancestral house, the same did not find place in the valuation report. He further submitted that the Valuer need not be called for crossexamination but it would be necessary to prepare fresh valuation reports by conducting actual inspection of the properties and the residential house, after giving notice to all the interested parties.

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I have gone through the material on record and I have considered the submissions advanced on behalf of the parties.

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12 . There is no dispute that the interested party namely Piedade

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8 WP 739/13

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Costa alongwith her children resides in the ancestral house, situated in one of the properties. In the valuation report, there is no mention about the presence of said Piedade Costa or any other inmate/s of the house when the Valuer inspected the property and more particularly the residential house. The valuation report, inter alia, mentions that the walls are of laterite stone/mud and are plastered from inside and outside. The valuation reports do not mention that prior notice of inspection was given to the interested parties. There is serious doubt whether the Commissioner had actually visited the properties and whether he had entered the residential premises therein. Therefore, the valuation done by Valuer is not beyond suspicion.

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It is no doubt true that there is no provision for crossexamination of the valuer. However, since there is a provision for valuation of the assets, it goes without saying that while carrying out such valuation principles of natural justice must be followed. The Valuer was bound to notify the interested parties about the date of inspection so that they or anybody of them could remain present and guide the Valuer while carrying out the valuation of the property and the house. Since the same has not been done, the valuation reports are bound to be rejected. There is serious doubt whether the Valuer had actually taken any personal site inspection since in that case he would have referred to the inmates of the

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9 WP 739/13

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residential house.

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The learned Trial Court has wrongly observed that the house was not valued as the Valuer was asked to value the property and not the house. In fact, the valuation reports reveals that the house has been valued. The learned First Appellate Court has held that prima facie the reports dated 26/03/2013 appear to be different from the earlier report filed by the Commissioner on 13/08/2003. The First Appellate Court has held that since the present reports are not similar to the one which was produced earlier, the interested parties could have been permitted to cross-examine the Commissioner. As rightly contended by the learned counsel for the petitioners, there is no provision for cross-examination of the valuer. In my view, since there are serious objections to the valuation reports and also since the present reports are allegedly not similar to the earlier reports, the Valuer should be directed to carry out fresh valuation after giving notices to the interested parties to remain present at the site, if they desire, in order to guide him with regard to the property and the house. Impugned order allowing cross-examination of valuer is not sustainable. It is pointed out that the Inventory proceedings are old being of 1983. Learned Counsel, therefore, agree that a direction be given to expedite the disposal.

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In the result, the petition is partly allowed.

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10 WP 739/13

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(a) Valuation reports dated 26/03/2013 prepared by the Commissioner Shri Mahendra Kakule are rejected.

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(b) The engineer shall prepare fresh valuation reports by personally inspecting the properties and the house after giving notice to all the interested parties to remain present , if they desire.

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(c ) The inventory proceedings being old, shall be disposed of by the Trial Court finally, expeditiously and in any case within a period of 8 (eight) months from the date of receipt of this Order.

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(d) Rule made absolute in the aforesaid terms.

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16 . Petition stands disposed of accordingly.

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U. V. BAKRE, J.

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Mr. Fidelis Caetano Teodomiro Filomeno Da Costa @ Fidelis Da Costa and Anr., v. Mrs. Piedade Costa @ Patsy Da Costa and 6 Ors.

Case brief

What is this about?

What did the court decide?

Mr. Fidelis Caetano Teodomiro Filomeno Da Costa @ Fidelis Da Costa and Anr., v. Mrs. Piedade Costa @ Patsy Da Costa and 6 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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