Dismissed

Amelino Clifton De Rosario Azavedo and Anr., v. Newton Azavedo and 3 Ors.

Bombay HC15 Jun 2021WP/638/2019

Case brief

AI extract

What is this about?

The Goa High Court dismissed a writ petition challenging the dismissal of an appeal in inventory proceedings. The court held that the proceedings were valid despite the wife not being impleaded or served notice, as her husband was a duly served moiety holder who participated in the auction, rendering separate notice unnecessary.

What did the court decide?

The writ petition was dismissed and the interim order was vacated.

Amelino Clifton De Rosario Azavedo and Anr., Vs Newton Azavedo and 3 Ors. — Bombay HC (2021) — LawSathi Research

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION No. 638 OF 2019

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1) Amelino Clifton De Rosario Azavedo
 And his wife
2) Pamita Azavedo,
 both residents of Reis Magos,
 Portais, Verem,
 Bardez, Goa. .... Petitioners
V e r s u s
1). Mr. Newton Azavedo
2). Mrs. Senirita Azavedo
3). Mrs Janice Azavedo
4) Mr. Clifford Santimano D'Souza
 All residents of Reis Magos near Our Lady
 of Rosary Chapel Portais, Verem, Bardez Goa. .....Respondents

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Mr. V. R. Tamba with Mr. Vibhav Rajiv Amonkar, Advocates for the
Petitioners.
Mr. Valmiki Menezes, Advocate for the Respondents No.1, 2, 3 and 4.

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CORAM : M. S. SONAK, J

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DATE : 15th June, 2021

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P.C.

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Heard Mr. V. R. Tamba alongwith Mr. Vibhav R. Amonkar,

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learned Counsel for the petitioners and Mr. Valmiki Menezes, learned
Advocate for the respondents No.1 to 4.

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2.The challenge in this petition is to the order dated 16.03.2018
made by the Adhoc District Judge-I, Fast Track Court, Mapusa dismisssing
the petitioner's appeal against order dated 19.10.2011 made by the Civil
Judge Senior Division at Mapusa in inventory proceedings No.316/99/A.

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3.Mr. Tamba, learned Counsel for the petitioners submits that in
this case the petitioner No.2, who is the wife of petitioner No.1 was neither
impleaded as a party nor given any notice of the auction proceedings in the
inventory. He submits that such impleadment and/or notice was a must
because the petitioner No.2, as a moiety holder, also had right, title and
interest in the properties which were the subject matter of the inventory
proceedings. Mr. Tamba referred to some decisions, including the decision
in the case of Zacarias Durate Domingos Pereira v/s. Camilo Inacio
Evaristo Pereira1and Aruna Devi N. Gaekwad v/s. Sanjita Udaisingh
Sardessai2 in support of the proposition advanced by him.

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4. Mr. Menezes, learned Counsel for the respondents joins issue with the submissions made by Mr. Tamba. He submits that the decisions cited by Mr. Tamba are distinguishable because, in the said matters, there 1 1990(1) GLT 174

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2 2000 (2) GLT 479

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was failure to issue notice to persons who were entitled to participate in the
auction proceedings. He submits that in the present case the husband of hte
petitioner No.2, has taken part in the auction proceedings and as a moiety
holder, the petitioner had no independent right as such. Mr. Menezes
submits that the issue raised is covered in favour of the respondent by the
decision of this Court in Ranjit Satardekar v/s. Clotildes Fernandes3.

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5.Having considered the rival submissions and perused the
material on record, the submissions of Mr. Menezes, in the peculiar facts of
the present case deserve acceptance. This is a matter where the petitioner
No.1, who is the husband of petitioner No.2 was duly served in the
proceedings and has also taken part in the inventory proceedings. In Ranjit
Satardekar (supra), the learned Single Judge has held non-service of notice
to the moiety holder of the heir, does not vitiate the inventory proceedings
or in any case, the auction held in the inventory proceedings. The decisions
relied upon by Mr. Tamba are indeed distinguisable and have been correctly
distinguished in paragraph 22 of the impugned order.

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6.In Ranjit Satardekar (supra), this is what has been held in
paragraph 12 by the learned Single Judge:

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'12. By no stretch of imagination it can be said that the
expression moiety refers to the moiety holder of the heir. If the
expression "the heirs and the moiety holder spouse" is interpreted
in a manner suggested on behalf of appellant then we will be

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3 2006(4) All MR 223

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admitting to licitation the heirs and their spouses by leaving the
moiety holder out of the licitation which could never have been
the intention of the Legislator. It is interesting to note that the
heirs (herdeiros) are referred to in plural and moiety holder
(conjuge meeiro) is referred to in singular and therefore the
expression moiety holder cannot be interpreted to be referring to
the moiety holder spouses of the heirs. The expression is not "the
heirs and their moiety holders" (os herdeiros e seus conjuges
meeiros) but "the heirs and the moiety holder" (os herdeiros e o
conjuge meeiro)."

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7.For the aforesaid reasons, there is no case made out to warrant
interference with the impugned order. This petition is accordingly
dismissed.

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8.The interim order granted earlier is hereby vacated. However,
there shall be no order as to costs.

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 M. S. SONAK, J.

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msr.

Amelino Clifton De Rosario Azavedo and Anr., v. Newton Azavedo and 3 Ors.

Case brief

What is this about?

What did the court decide?

Amelino Clifton De Rosario Azavedo and Anr., v. Newton Azavedo and 3 Ors.

Case brief

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What did the court decide?

What the court decided

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