IN THE SUPREME COURT OF INDIA(Order XVI Rule 4(1) (a))

CIVIL APPELLATE JURISDICTIONSPECIAL LEAVE PETITION

[Under Article 136 of the Constitution ofIndia]

S.L.P. (Civil) No of 2014

(Arising out of the impugned final Order andjudgment dated 20th March 2014 passed by theHonble High Court of Bombay at Goa, in CivilApplication Review No.11 of 2014 which wasfiled for review of the final judgment/order ofSecond Appeal in Second Appeal No.24 of 2012passed by the High Court)

IN THE MATTER OF :-

Smt.Vijaya Gajanan Naik Petitioner

Versus

Shri. Suresh Basu Naik & Ors. Respondents

With

I. A. No.________ of 2014Application to permit the Power of AttorneyHolder to appear in person before the HonbleSupreme court.

PAPER BOOK[FOR INDEX PLEASE SEE INSIDE]

PETITIONER IN PERSON:Smt.Vijaya Gajanan Naik

INDEX

SL.NO. PARTICULARS PAGE NO.

1. Office Report on Limitation A2. Listing Proforma A1-A23. Synopsis and List of Dates B - R4. Certified Copy of the Impugned 1 - 3

Order dated 20th March 2014passed by Honble Singlejudge of the High Court inCivil Application (review) No.11/2014.

5. Special Leave Petition with 4-63Affidavit

6. Annexure P/1 : 64-85A copy of the Memo/pleadings ofthe Review Application filedbefore the High Court in CivilApplication (review) No. 11 Of2014 filed on 27/8/2013.

7. Annexure P/2 : 86-87A copy of the Order dated 28thFebruary 2014 passed byHonble Single judge of theHigh Court in MiscellaneousCivil Application No. 813 of2013 (application forcondonation of delay).

8. Annexure P/3 : 88-98A copy of the Memo/pleadings(for condonation of Delay)filed before the High Court in

Miscellaneous CivilApplication No. 813 OF 2013,filed on 27/8/2013.

9. Annexure P/4: 99-111A copy of the Order/finalJudgment dated 21st June 2012passed by Honble judge of theHigh Court in Second AppealNo.24 of 2012.

10. Annexure P/5: 112-135A copy of the Order dated 9thDecember 2011 passed byHonble judge of the HighCourt in Second Appeal no.3 of2006 titled Shri NorbertoPaulo Fernandes and Ors vsShri.Gabriel Sebastiao Idalinoand Ors.

11. Annexure P/6: 136-139A copy of the judgment dated02/06/1982 passed by the thenJudicial Commissioner Dr.CoutoJ in Civil RevisionApplication No.208/80.

12. Annexure P/7: 140-150A copy of the judgment anddecree dated 10/03/2011 passedby learned district andsessions judge, south Goa,Margao in regular civilapplication no.389/2010.

13. Annexure P/8: 151-166A copy of the Judgment dated30/7/2002 in special civilsuit no:42/99/B at the courtof the addl.civil judge seniordivision,at vasco da gama

14. Application to permit the Power 167-169of Attorney Holder to appear inperson before the HonbleSupreme court.

15. Annexure P/9: 170-173A copy of the Power ofAttorney.

BSYNOPSIS AND LIST OF DATES1. This special leave petition (SLP) raises

vital questions related to the Laws inforce in the State of Goa after cominginto force of the The Goa,Daman and Diu(Laws) No.2 Regulation,1963. Though theissues regarding which Portuguese laws arestill in force and which laws are repealedin the state of Goa is no longer res-integra in view of the judgement of theHonble Supreme Court of India inSyndicate Bank V/s Prabha D. Naik and anr,The failure of the State Government of Goato authenticate and publish the laws stillin force in the regional or OfficialLanguage has been affecting all thecitizens of the state of Goa. It is abitter truth that in the State of Goa noCitizen has access to an authenticatedversion of the Laws still in force in theState of Goa. The succession and familylaws of the Portuguese Civil Code arestill in force in the state of Goa.

C2. Still after the decision of this HonbleCourt in Syndicate Bank V/s Prabha D. Naikand anr wherein this court has held thateither a chapter of the Portuguese civilcode exists in its entirely or not and nosingle provision from any of the repealedchapters can be said to be still in force.In various cases which came up beforevarious subordinate courts and also beforethe Honble High Court in the state of Goaand also in the impugned Judgment/Order ofthe present suit, the courts have heldthat some single provisions from therepealed chapter are still in force, thesecases have not been challenged before thisHonble supreme court as such there hasbeen miscarriage of justice not just inthe case of the petitioner but also to thepublic of the state of Goa.The Citizens ofthe state of Goa has to approach theadvocates just to know the Portuguese Lawsreferred in their cases, and the advocatesin turn mislead the ignorant citizens,ignorant in terms of not knowing whetherthe laws are repealed or still in force

Dbecause the Government of Goa has notpublished authenticated translations ofthe laws in force even after 58 years ofliberation from Portuguese rule.

3. Also another case titled Second AppealNo.3 of 2006 titled Shri Norberto PauloFernandes and Ors vs Shri.GabrielSebastiao Idalino and Ors (Annexure-P/5)decided by the Honble High Court ofBombay at Goa which is taken as precedentby the Honble High Court of Bombay at Goain deciding the impugned judgment waschallenged before this Honble SupremeCourt in SLP (Civil) Sc 18992/2012,butunfortunately the SLP came to be withdrawnby the appellants therein.

BRIEF BACKGROUND

1. The petitioner and Respondent No.1,4 and 6are children of Respondent No.3 and herhusband Basu Dipu Naik(nowdeceased).Respondent No.3 and her husbandon 24.12.1968 purchased a property

Eadmeasuring 1318 Square meters known asPiturlem, Situated at Sancoale Village.Thus the property was Self acquiredproperty of the Respondent No.3 and herhusband.

2. On 21.12.1993 the Respondent No.3 and herhusband executed deed of sale with thePetitioner, Respondent No.4 and RespondentNo. 6 who are the daughters of theRespondent No.3 and her husband.Respondent No.1 who is the son ofRespondent No.3 and her husband wasexcluded from the sale deed. ThePetitioner, Respondent No.4 and RespondentNo.6 were all major in Age at the time ofsale.

3. On 13.10.1997 the husband of RespondentNo.3 Expired(father of Petitioner andRespondent No.1,4,6)

4. The Respondent No.1 and his wife TheRespondent No.2 filed a suit bearingSpecial Civil Suit No. 42/99/B. before the

FCourt of ADDL. Civil Judge Vasco fordeclaring the sale deed dated 21.12.1993null and void claiming that the sale deedis against the Article 1565 of thePortuguese Civil Code. Though at this timethe Respondent No.1 and His wife did notadvance any arguments claiming thatArticle 1565 is a provision of Successionlaw.the Special Civil Suit was dismissedgiving reasons that the suit property didnot form part of the inheritance as rightof inheritance to the estate leaver arisesonly on the death of the estate leaver inthe property left by him on the date ofhis death and not in any other propertyand so on the day of sale deed RespondentNo.1 cannot say that he got the share inthe said property at that time(Annexure-P8).

5. The Respondent No.1 and his wifechallenged the judgment of the SpecialCivil Suit by way of Regular Civil AppealNo.389/2010 filed before the Court ofdistrict And Sessions Judge, south

GGoa,Margao.The District judge allowed theappeal giving reasons that Article 1565 ofthe Portuguese civil code is a provisionof law regarding disposal of properties inGoa and that parents cannot violatearticle 1565 of Portuguese civil codewhile executing the said sale deed dated21.12.1993 as such declared the sale deednull and void and ineffective by judgmentand order dated 10.03.2011(Annexure-P7).

6. The Petitioner and Respondent No.3,4,5,6,7and 8(all original appellants in SecondAppeal No.24 of 2012) appealed against theJudgment and order dated 10.03.2011 beforethe Honble High Court of Bombay atGoa.The Advocate of the Petitionercontended before the Honble High Courtthat article 1565 of the Portuguese CivilCode is Repealed by Coming into force ofTransfer of property Act, Even when thereexisted an Exactly same Judgment of theHonble High Court in Second Appeal No.3of 2006 titled Shri Norberto PauloFernandes and Ors vs Shri.Gabriel

HSebastiao Idalino and Ors wherein Exactlythe Same Contention of the Advocatetherein was Rejected by the Same Judge ofthe Honble High Court(Annexure-P5). Thecontention was same word by word. ThePetitioner had number of times approachedthe advocate and informed him that theArticle 1565 of the Portuguese civil Codeis a provision belonging to the Chapter ofPortuguese Civil Code dealing withcontracts and not successions and it isrepealed by Indian Contracts Act and Notby any provision of Transfer of PropertyAct, but the Advocate did not bring thisfact to the notice of the Honble HighCourt during the Case Proceedings ofSecond Appeal No.24 of 2012.

7. The Honble High Court dismissed theSecond Appeal with simple reasoning that aprovision of succession law cannot berepealed by transfer of property act,which was contended by the advocate of thepetitioner (Annexure-P4).

I8. Since there was ignorance of the law whiledeciding the matter in the High Court thepetitioner then approached another HighCourt advocate to file review of theOrder/Judgment of the Second appeal No.24of 2012. The Second advocate approached bythe petitioner first delayed the mattertill the limitation period to file thereview was over and then took a stand thatthere is no weight in our matter, andasked the petitioner to get a judgment ordecision wherein any court has explicitlyheld that article 1565 of Portuguese civilcode is repealed.

9. After refusal of the advocate to filereview the petitioner approached two moreadvocates to file the Review of the Orderof Second Appeal No.24 of 2012 but allrefused to take up the matter while tryingto convince us that parents cannot sellproperty to childrens.

J10. After the advocates tried to deny thepetitioner justice, the petitioner wasable to file a review petition bearingCivil Application Review No.11 of 2014 onher own after a delay of 378 days, Draftedby her son Mr.Vishal Gajanan Naik, whowill also be appearing on behalf of me inperson before this honble Supreme Courtin the present Special leave Petition.ACopy of the memo of the Civil ApplicationReview No.11 of 2014 is annexed herewithand marked as Annexure-P1.

11. An Application for condonation of delay infiling the Review Application was alsofiled bearing Miscellaneous CivilApplication No.813 of 2013 and by Orderdated 28th February 2014 the Single Judgeof the Honble High Court condoned thedelay of 378 days for the reasons statedin the Application for condonation ofdelay.it is pertinent to note that theRespondent No.1 and 2 did not appearbefore the High Court nor engaged any

Kadvocate. A Copy of the MiscellaneousCivil Application No.813 of 2013 and itsOrder dated 28th February 2014 are Annexedherewith and marked as Annexure-P3 andAnnexure-P2 respectively.

12. The Review Application was rejected by theHonble High Court giving reasons that thearticle 1565 of the Portuguese civil codeis a provision of Portuguese successionlaw in force in Goa and it is not repealedby the Transfer of Property Act, though inthe review application the petitioner hascontended that the article 1565 is aprovision of Contracts Law of thePortuguese Civil Code and repealed oncoming into force of Indian contracts Act.And that article 1565 does not provide anyaccrual of rights but only prohibitsexecution of a contract of sale betweenparents or grandparents and childrens orgrandchildrens, if executed withoutconsent of all the childrens orgrandchildrens. A copy of the impugnedFinal order and Judgment of Civil

LApplication Review No.11 of 2014 is placedat Pages 1 to 3 of the Slp.

13. The Respondents were duly served in allthe Three suits filed before the HonbleHigh Court, that is in Second Appeal No.24of 2012,Civil application Review No.11 of2014 and Miscellaneous Civil ApplicationNo.813 of 2013(condonation of delay infiling review).The Respondent No.1 & 2decided to remain absent from theproceedings because if they have appearedbefore the Honble High Court therespondent No.1 & 2 would be bound to filetheir reply and they would have to clarifywhether the suit property is part of thelegitime portion of the parents or not.

14. Aggrieved by the impugned Judgment/orderof the Civil Application Review No.11 of2014 the appellant has filed the presentSpecial Leave Petition.

MLIST OF DATES AND EVENTS

Sr. No. Date Particulars of events

1. 21/12/1993 Respondent No.3 and herHusband executes Sale Deedwith the Petitioner andRespondent No. 4 & 6,Allmajor in age at the time ofsale deed.

2. 13/10/1997 The Husband of RespondentNo.3 (father of Petitioner,Respondent No.1, 4 & 6)demises.

3. 02/08/1999 The Respondent No.1 filed asuit bearing Special CivilSuit No.42/1999/B at thecourt of the addl.civiljudge senior division,atvasco da gama fordeclaration that the saledeed dated 21.12.1993 to bedeclared as null and void.

4. 10/03/2011 The Learned Trial Court hasbeen pleased to dismiss theSpecial Civil Suit No.42/1999/B.A copy of theDecision of Special CivilSuit No.42/1999/B.A is

Nannexed hereto and markedas Annexure P/8(Pages:151to 166).

5. 01/06/2010 Respondent No.1 files appealbefore the District Courtwhich was made over to theDistrict Judge II, SouthGoa, Margao and which wasregistered as the RegularCivil Appeal No.389/2010.

6. 10/03/2011 learned district and sessionsjudge, south goa, margaoDecrees the suit in favourof Respondent No.1. Copy ofJudgment and decree dated10/03/2011 in Civil AppealNo.389/2010 is annexedhereto and marked asAnnexure P/7(Pages:140 to150).

7. 10/06/2011 Petitioner, Respondent No.3,4,5,6,7 and 8 (All originalappellants) files SecondAppeal before the HonbleHigh Court,registered asSecond Appeal No.24 of 2012.

8. 09/12/2011 The Learned Single Judge ofthe Honble High Courtdecides Second Appeal No.3

Oof 2006 titled Shri NorbertoPaulo Fernandes and Ors vsShri.Gabriel SebastiaoIdalino and Ors.A copy ofthe Judgment of SecondAppeal No.3 of 2006 dated 9thDecember 2011 is annexedhereto and marked asAnnexure P/5(Pages:112 to135).

9. 21/06/2012 The Learned Single Judge ofthe Honble High Courtdismisses the Second appealfiled by the Appellant byorder dated 21/06/2012. Acopy of the Judgment ofSecond Appeal No.24 of 2012dated 21st June 2012 isannexed hereto and marked asAnnexure P/4 (Pages:99 to111).

10. 27/08/2013 The Petitioner filesMiscellaneous CivilApplication No.813 of 2013for condonation of delayin filing the CivilApplication (Review) No.11of 2014. A copy of theMemo/pleadings of theMiscellaneous CivilApplication 813 of 2013

Pis annexed herewith andmarked as AnnexureP/3(Pages:88 to 98).

11. 27/08/2013 The Petitioner files CivilApplication (Review)No.11 of 2014 for reviewof the Order of SecondAppeal No.24 of 2012. Acopy of theMemo/pleadings of theCivil Application ReviewNo.11 of 2014 is annexedhereto and marked asAnnexure P/1(Pages:64 to85).

12. 28/02/2014 The Learned Single Judge ofthe High Court allows theMiscellaneous CivilApplication No.813 of2013 thus condoning thedelay of 378 days infiling the CivilApplication (Review)No.11 of 2014. A copy ofthe Order dated 28thFebruary 2014 inMiscellaneous CivilApplication No.813 of2013 is annexed heretoand marked as AnnexureP/2(Pages:86 to 87).

Q13. 20/03/2014 The Learned Single judge ofthe Honble High Courtrejects the Review FiledBy the Appellant in CivilApplication Review No.11of 2014 by impugned orderdated 20/03/2014.

14. 26/03/2014 The Petitioner applies forcertified copies of theimpugned Final Order andjudgment of CivilApplication Review No.11 of2014.Dates of applying forthe certified copy of theOrder and Judgment can beseen on page 3 of the SLP.

15. 22/05/2014 Certified copies of theimpugned Order dated20/03/2014 of CivilApplication Review No.11 of2014 were ready.

16. 22/05/2014 Certified copies of theimpugned Order of CivilApplication Review No.11 of2014 dated 20/03/2014 weredelivered to thePetitioner.

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4IN THE SUPREME COURT OF INDIA(Order XVI Rule 4(1) (a)

CIVIL APPELLATE JURISDICTIONSPECIAL LEAVE PETITION

(Under Article 136 of the Constitution ofIndia)

S.L.P. (Civil) No of 2014

(Arising out of the impugned final Order andjudgment dated 20th March 2014 passed by theHonble High Court of Bombay at Goa, in CivilApplication Review No.11 of 2014 which wasfiled for review of the final order/Judgment ofSecond Appeal in Second Appeal No.24 of 2012passed by the High Court)

BETWEEN Position of partiesIn the Court fromwhose order thePetition arises

In the In ThisHigh Court Court

A) Smt.Vijaya Gajanan Naik,Major in age,Residingat House No.141,Akshibhat,Agassaim,Ilhas Goa

Appellant Petitioner

A N D

5B) Shri. Suresh Basu Naik,son of late Basu Dipu Naik,major in age,married,businessman and his wife

ContestingRespondent No.1 Respondent No.1

C) Smt.Mary Rosa Goes aliasMaya Suresh Naik,Major in age,housewife, both residents ofHouse No.128,pithole,Sancoale,Mormugao,Taluka Goa

ContestingRespondent No.2 Respondent No.2

D) Smt. Premavati Basu Naik,major in age, widow of BasuDipu naik,housewife,House No.138,Rua de Maria,Sancoale,Mormugao Taluka,Goa

ProformaRespondent No.3 Respondent No.3

E) Smt.Tara Prakash Naik,Major in age,widow ofPrakash Naik.House No.138, Rua de Maria,Sancoale, Mormugao Taluka,Goa

ProformaRespondent No.4 Respondent No.4

F) Shri.Kalidas Prakash Naik,Major of age,student,

6son of late Prakash Naik,Residents of House No.138,Rua de Maria,Sancoale,Mormugao Taluka,Goa.

ProformaRespondent No.5 Respondent No.5

G) Smt.Rohini Ladu Naik,Major in age,married,housewife,And her husband

ProformaRespondent No.6 Respondent No.6

H) Shri. Ladu Datta Naik,Major in age,service,both residing at House No.36/B,Issorim,Velsao,Mormugao Taluka,Goa

ProformaRespondent No.7 Respondent No.7

I) Shri. Gajanan Laxman Naik,Major in age,residingat House No.141,Akshibhat,Agassaim,Ilhas Goa.

ProformaRespondent No.8 Respondent No.8

ToThe Hon'ble Chief Justice of India and HisCompanion Judges of the Supreme Court of India.

71. The Special Leave Petition ofthe Petitioner most respectfully showeth :-

a. The petitioner above named respectfullysubmits this petition seeking specialleave to appeal against the impugned Finalorder/Judgment of the single Judge of theHonble High Court of Bombay at Goa inCivil Application Review No.11 of 2014dated 20th March 2014 dismissing theApplication for review of the finalOrder/Judgment of the High Court in secondAppeal No.24 of 2012,dated 21st June2012(Annexure-P/4) by which the HonbleHigh Court had dismissed the Second AppealNo. 24 of 2012.

b. The impugned Order of Civil ApplicationReview No.11 of 2014 was passed dated 20th

March 2014, the application for certifiedcopies of the order dated 20th march 2014was made on 26th March 2014,the date givenfor collecting the Certified Copy of theimpugned judgment was extended to 22nd May2014 by the court office as the final

8Judgment was not dictated by the Honblesingle judge of the High Court and thecopies were ready only on 22nd May 2014 andthe Certified copies were finallydelivered to the Petitioner on the sameday i.e on 22nd May 2014.Hence this PresentSpecial leave Petition is within the 90days of the Limitation period. Date ofapplying for certified copy of theimpugned judgment and date on which thecopy was ready appears at page 3 of thisSLP.

2. QUESTION OF LAW:The following questions of the law arises forconsideration by this Hon'ble Court:a. Whether the Learned single Judge of the

Honble High Court committed error orgross illegality in that he ignored thefact that article 1565 is not provision ofsuccession law in force in the state ofGoa?.

b. Whether the Learned single Judge of theHonble High Court committed error or

9gross illegality in that he ignored thefact that article 1565 is the provision ofthe chapter of Portuguese civil codetitled Contract of Sale which has beenrepealed after coming into force ofIndian Contract Act and not by Transferof Property Act?.

c. Whether the Learned single Judge of theHonble High Court committed error orgross illegality in simply assuming andnot deciding himself whether the suitproperty is legitime portion of theparents or not?.

d. Whether the Learned single Judge of theHonble High Court committed error orgross illegality in that he did not at allconsider the pleadings of the appellant inthe Civil Review Application made beforehim?.

e. Whether the Learned single Judge of theHonble High Court committed error orgross illegality in that the impugned

10

judgment is perverse and as such is notsustainable in law?;

f. Whether the Learned single Judge of theHonble High Court committed error orgross illegality in that he ignored thelaw laid down by the court of record,i.ethe Honble Supreme Court of Indiaregarding repeal of laws of Portuguesecivil code,in the case of Syndicate BankV/s Prabha D. Naik and anr ?.

g. Whether the parents i.e the RespondentNo.3 and her Husband(now deceased) had nodisposal right with respect to the selfacquired suit property?.

h. Whether the Respondent No.1 had ownershipright in the self acquired suit propertyduring the lifetime of his parents i.e atthe time of the execution of the saledeed?.

i. Whether the Respondent No.1 could haveclaimed his share of inheritance in the

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self acquired suit property of his parentsi.e Respondent No.3 and her Husband duringtheir life time, the inheritance which hewould have become entitled after the deathof his parents if parents had not disposedthe said self acquired suit property ?.

j. Whether the single judge of the HonbleHigh Court failed to see that suitproperty is not part of the legitimeportion of the parents i.e of theRespondent No.3 and her husband?.

k. Whether the single judge of the honbleHigh Court failed to see that suitproperty was not part of any inheritanceduring the life time of the Parents?.

l. Whether the single judge of the HonbleHigh Court failed to see that the suitproperty was not disposed by way oftestamentary disposition nor intestate assuch succession law cannot be invoked?.

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m. Whether the single judge of the HonbleHigh failed to see that the suit propertydid not form the part of the legitimeportion of the Respondent No.3 and herhusband as per the Portuguese Successionlaw still in force in the State of Goa ?.

n. Whether the single judge of the HonbleHigh Court was wrong to presume withoutany evidence on record that the suitproperty of the impugned Judgment andSecond Appeal No.24 of 2012(Annexure-P/4)as the part of the legitime portion of theparents ?.

o. whether the single judge of the HonbleHigh Court failed to see that the evidenceand facts of the second appeal No.3 of2006(Annexure-P/5) are not same as that ofthe suit property of impugned Judgment andSecond Appeal no.24 of 2012(Annexure-P/4).

p. whether the single judge of the HonbleHigh Court was wrong to disregard thejudgment of Honble Supreme court in

13

Syndicate Bank V/s Prabha D. Naik and anr.which is binding on the High Court,supremecourt being the court of record ?.

q. whether the single judge of the HonbleHigh Court failed to see that the Indiancontract Act is applicable in the State ofGoa ?.

r. Whether the single judge of the HonbleHigh Court failed to see that the IndianContract Act has repealed the chapter ofPortuguese Civil Code dealing withContracts in Goa,of which the article 1565also part of ?.

s. Whether the single judge of the HonbleHigh Court was wrong in naming and simplycalling the provision of law of contractof Portuguese civil code i.e Article 1565,the Provision of Succession law ?.

t. Whether the single judge of the HonbleHigh Court failed to see that Before thedeath of the ancestor, an expectant heir

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or distributee has no vested interest butonly a mere expectancy or possibility ofinheritance. Such an individual cannot onthe basis of his or her prospective rightmaintain an action during the life of theancestor to cancel a transfer of propertymade by the ancestor ?.

u. Whether article 1565 of the Portuguese lawof contracts can be said/named to beprovision of succession law andconsequently inferred to be not repealedby Indian contracts act?

3. DECLARATION IN TERMS OF RULE 4(2)The petitioner states that no other petitionseeking leave to appeal has been filed by himagainst the impugned judgment and order.

4. DECLARATION IN TERMS OF RULE 6The annexures produced along with the SLP aretrue copies of the pleadings/documents whichformed part of the records of the case in theCourt below against whose order the leave toappeal is sought for in this petition.

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5. G R O U N D S :-1. Leave to appeal is sought on amongst the

following grounds:

2. The impugned order is bad in law and assuch, deserves to be quashed and setaside;

3. The learned Single Judge of the High Courterred in dismissing the Second Appeal No.24 of 2012 and Civil Application ReviewNo.11 of 2014;

4. The Honble High Court failed to considerthe following grounds among others, assuch the impugned order is invalid,incorrect, improper and as such, liable tobe set aside.

5. In the review application filed by thePetitioner the Honble High court Wronglyheld that the main ground of the review isto contend that the provisions of Article1565 of the Portuguese Civil Code dealingwith the succession are no longer in force

16

after Coming into force of the Transfer ofProperty Act. In reality the Petitionerhad disputed the opinion of the High Courtthat the article 1565 is dealing withsuccessions, furthermore the Petitionerhas stated that the article 1565 isprovision of the chapter of contracts inthe Portuguese civil code and that it isrepealed after coming into force of Indiancontracts Act.

6. The Review Filed by the Petitioner inCivil Application (Review) No.11 of 2014was erroneously rejected by the singlejudge of the Honble High Court withoutgoing into merits of the case. in Fact theHonble Single Judge erroneouslymisinterpreted the grounds contended bythe Petitioner. In the impugned Orderdated 20/03/2014 (Pages 1 to 3 ) theHonble Single Judge held as follows:

I have heard the applicant in personand perused the records. The main groundof the review is to contend that theprovisions of Article 1565 of the

17

Portuguese Civil Code dealing with thesuccession are no longer in force aftercoming into force of the Transfer ofProperty Act. This aspect has been dulyexamined while disposing of SecondAppeal No. 24 of 2012 by judgment dated21.06.2012. Those provisions are dealingwith succession which has been examinedwhile passing the judgment underreview.

7. The Petitioner had contented in the saidreview application (Annexure P/1) that:

a)The Article 1565 of the Portuguesecivil code is a provision contained inthe chapter named contract of sale,achapter of Portuguese civil codedealing with contracts and notsuccessions.

b)That the article 1565 is not aprovision of succession law as it doesnot protect any legitime portion orguarantee any share to any

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descendents. Only reason given fornaming/calling the article 1565 as theprovision of succession law is thatsince it prohibits execution ofcontract of sale to some childrenwithout taking consent of theremaining,because of this restrictionto sale it was opinioned by theHonble High Court that article 1565protects legitime portion. The suitproperty in reality and as per theevidence on record is not part oflegitime portion of the parents atall.

c)That the article 1565 being aprovision of chapter of contracts ofsale in the Portuguese civil code andit is repealed after coming into forceof the INDIAN CONTRACT ACT and notTransfer of Property Act

8. These contentions of the Petitioner wereerroneously ignored by the learned singlejudge of the Honble High Court.

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9. The learned single judge of the HonbleHigh Court erroneously ignored that theIndian contract act extended to the stateof Goa and its consequent repeal of theentire chapter of the Portuguese civilcode dealing with the contracts, withoutany dissection and without exception ofany provision.

10.The learned single judge of the HonbleHigh Court erroneously ignored the factthat the suit property is not part of thelegitime portion as such neither article1565 nor succession law can be invoked.

11.And the learned single judge of theHonble High Court also erroneouslyignored the judgment of the honbleSupreme Court in Syndicate Bank Vs PrabhaD.Naik & Oths wherein it is held thatEither the code applies in its entiretyor it does not-there is no half way aboutit.. The judgment of the Supreme Court,being the court of record is binding on

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the Honble High Court and the HonbleHigh Court cannot deviate from the lawlaid down by the Supreme Court in the saidjudgment.

12.The learned single judge of the HonbleHigh Court erroneously ignored the factthat the article 1565 is the provision ofthe chapter of Portuguese civil codedealing with the contracts as such thewhole chapter has been repealed on cominginto force of the Indian Contracts act inthe state of Goa.

13.The Honble High Court committed an errorby ignoring the above facts brought beforeit in the Civil Application Review whichif not corrected will cause grossmiscarriage of justice and also underminesthe authority of the Honble Supreme Courtof India hence the present appeal ismaintainable.

14.The review application before the HonbleHigh Court was filed in accordance with

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the law laid by the Honble Supreme courtIn Board of Control for Cricket in India &Anr. V/s. Netaji Cricket Club & Ors. (2005(4) SCC 741), wherein the Apex Court hasstated that Order 47, Rule 1, of CPCprovides for filing an application forreview and such an application for reviewwould be maintainable not only upondiscovery of a new and important piece ofevidence or when there exists an errorapparent on the face of the record butalso if the same is necessitated onaccount of some mistake or for any othersufficient reasons. What would constitutesufficient reason would depend on thefacts and circumstances of the case andthe words sufficient reason in Order 47,Rule 1, of CPC are wide enough to includea misconception of fact or law by a courtof even an advocate and that anapplication for review may be necessitatedby way of invoking the doctrine actuscuriae neminem gravabit (emphasissupplied). The Apex Court took note ofLily Thomas & Ors. V/s.Union of India &

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Ors reported in AIR 2000 SC 1650. andnoted;

52. The dictionary meaning of the word'review' is 'the act of looking, offersomething again with a view tocorrection or improvement'. It cannot bedenied that the review is the creationof a statute. The Honble High Court inPatel Narshi Thakershi V/s.Pradyumansinghji Arjunsinghji, held thatthe power of review is not an inherentpower. It must be conferred by lawwither specifically or by necessaryimplication. The review is also not anappeal in disguise. It cannot be deniedthat justice is a virtue whichtranscends all barriers and the rules orprocedures or technicalities of lawcannot stand in the way ofadministration of justice. Law has tobend before justice.If the Court findsthat the error pointed out in the reviewpetition was under a mistake and theearlier judgment would not have beenpassed but for erroneous assumption

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which in fact did not exist and itsperpetration shall result in amiscarriage of justice nothing wouldpreclude the Court from rectifying theerror.

15.The power of review is set out in Order 47Rule 1 of the Code of Civil Procedurewhich provides application for review ofjudgment which reads as under:

Any person considering himselfaggrieved -by a decree or order fromwhich an appeal is allowed, but fromwhich no appeal has been preferred,by adecree or order from which no appeal isallowed, or[c] by a decision on a reference from aCourt of Small Causes,and who, from thediscovery of new and important matter orevidence which, after the exercise ofdue diligence was not within hisknowledge or could not be produced byhim at the time when the decree waspassed or order made, or on account ofsome mistake or error apparent on the

24

face of the record or for any othersufficient reason, desires to obtain areview of the decree passed or ordermade against him, may apply for a reviewof judgement to the Court which passedthe decree or made the order.

16.Further the Hon'ble Supreme Court in thecase of M.M.B. Catholicos v. M.P.Athanasius reported in AIR 1954 SC 526particularly para 32 which reads as under:

The Court of review has only a limitedjurisdiction circumscribed by thedefinitive limits fixed by the languageused therein.It may allow a review on three specifiedgrounds namely (i) discovery of new andimportant matter or evidence which afterthe exercise of due diligence, was notwithin the Appellant's knowledge orcould not be produced by him at the timewhen the decree was passed, (ii) mistakeor error apparent on the face of therecord and (iii) for any othersufficient reason.

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It has been held by the JudicialCommittee that the words 'any othersufficient reason' must mean a reasonsufficient on grounds, at leastanalogous to those specified in therules.

17.Further the Petitioner had relied uponHalsbury's Law of India Vol. 7 para ofCPC.65.775 on page 521 which providesthus:

OBJECT:The remedy of review, which is areconsideration of a judgement by thesame Court and by the same judge hasbeen borrowed from the Courts of equity.The concept was not known to the commonlaw. The remedy has a remarkableresemblance to a writ of error. Thebasic philosophy, inherent in therecognition of the doctrine of review,is acceptance of human fallibility. Ifthere is an error due to human failing,it cannot be permitted to perpetuate andto defeat justice. Such mistakes or

26

errors must be corrected so as toprevent miscarriages of justice. Justiceis above all as it is a virtue whichtranscends all barriers. Neither therules procedure nor technicalities oflaw can come in its way as the law hasto bend before justice. Rectification ofan order thus stems from the fundamentalprinciple that justice is above all. Itis exercised to remove an error and notto disturb finality.

18.Hence the learned single judge was erredin rejecting the review application(Annexure P/1) of the Petitioner.

19.The Petitioner No.1 & Respondent No.4, & 6are the daughters and respondent No. 1 isthe son of Respondent No.3 and her HusbandLate Basu Dipu Naik.

20.The Husband of Respondent No.1 Expired on13/10/1997,the sale deed was executedbefore the death by both the parents assuch succession law cannot be invoked for

27

the actions of the Respondent No.3 and herhusband in selling the suit property toPetitioner and Respondent No.4 & 6.

21.The article 1565 of the Portuguese law ofcontract of sale is not repealed by theTransfer of property Act but repealed byIndian Contract Act.

22.In the judgment of the honble SupremeCourt in Syndicate Bank Vs Prabha D.Naik &Oths it is held that Either the codeapplies in its entirety or it does not-there is no half way about it.. Thejudgment of the Supreme Court, being thecourt of record is binding on the HonbleHigh Court and the Honble High Courtcannot deviate from the law laid down bythe Supreme Court in the said judgment

23.The article 1565 is the provision of thechapter of Portuguese civil code dealingwith the contracts as such the wholechapter has been repealed on coming into

28

force of the Indian Contracts act in thestate of Goa.

24.The article 1565 of the Portuguese law ofcontract of sale is a provision dealingwith the law of contract of sale in thePortuguese civil code, and finds its placeunder the chapter titled contract ofsale in subsection titled The personswho can buy, and who can sell.

25.No share in the present suit property wasguaranteed to the respondents No.1 underany of the law existing at the time ofsale not even under article 1784 whichguarantees share in the legitime portionto the descendents.

26.Article 1565 does not make the childrenco-owner in the self acquired property ofthe parents.

27.The suit property is self acquiredproperty of the parents and does not formpart of the inheritance at the time of

29

sale by the parents as held by the COURTOF THE ADDL.CIVIL JUDGE SENIOR DIVISION,ATVASCO DA GAMA IN SPECIAL CIVIL SUITNO:42/99/B (Annexure P/8).and as suchcannot be held as part of the LegitimePortion of the parents under article 1784of the succession law.

28.The learned ADDL.CIVIL JUDGE held at page10 of the judgment(Annexure P/8)(Page 160of this Slp) that:

It is to be noted that right ofinheritance to the estate lever arisesonly on the death of estate lever in theproperty left by him on the dated of hisdeath and not in any other property andso on the day of sale deed plaintiffcannot say that he got the share in thesaid property at that time, other visealso he had given undertaking not toclaim any right and so in suchcircumstances, I hold that plaintiff wasnot at all having any share at the timeof sale deed in the suit property...

30

29.As such the respondents No.1 did not haveany share in the suit property at the timeof sale deed nor was the property a partof the legitime portion of the parents.

30.Further the legal maxim --Nemo est haeresviventis, which says that No one canhave an heir while alive. As such theRespondent cannot invoke the Portuguesesuccession law to prevent disposal of selfacquired property during the life time ofthe parents, just because the respondentwill inherit the property if the parentsdie.(in reality the Respondent No.1 and 2never have till today invoked thesuccession law but the Honble High Courthave misinterpreted the provision ofcontract law of Portuguese civil code as aprovision of succession law.

31.The article 1565 of the Portuguese law ofcontract of sale is a provision dealingwith the law of contract of sale in thePortuguese civil code, and finds its placeunder the chapter titled contract of

31

sale in subsection titled The personswho can buy, and who can sell.

32.The Honble High Court erroneously held atpara 5 of the Judgement of Second AppealNo.24 of 2012(Annexure P/4)(Page 103 ofthis Slp) that under article 1565 of thePortuguese Civil Code, there is an expressbar whereby parents cannot sell theimmovable property to the children.

33.The fact is that the article 1565 does notmention or specify the type of property,either movable or immovable, but onlyprohibits the execution of a contract,that is the contract of sale, betweenparents and the childrens without consentof all the children.

34.Article 1565 is also applicable to thesale of goods governed under sales ofgoods Act.

35.The judgment in civil revision applicationNo.208/80 before the court of the then

32

judicial commissioner(Annexure P/6) whichis cited by the Honble High Court at para5,Page 6 of the Judgement of Second AppealNo.24 of 2012(Annexure P/4)(Page 104 ofSlp) is completely erroneous as it iswrongly mentioned therein that theTransfer of Property Act repealed thechapter of Portuguese Civil Code dealingwith the contract of Purchase and salewhich is a fallacious statement, no wherethe Indian contracts act or Sale of GoodsAct or Negotiable Instruments Act wereeven considered, these statutes govern thecontracts in the state of Goa.

36.The judgment of civil revision applicationNo.208/80 before the court of the thenjudicial commissioner (Annexure P/6) iserroneous and illegal. it is held in thejudgment that article 1565 is aimed toprotect the shares in the estate of theirparents guaranteed by law to thechildrens,but the judgment is silent aboutwhich law guarantees the share the article1565 aims to protect or under which law

33

the shares are created for the childrensin their parents self acquiredproperties.only when shares are createdthe shares can be guaranteed andprotected,the shares which does not existscannot be guaranteed or protected.

37.The Honble High Court opinioned in theJudgment of Second Appeal No.24 of 2012(Annexure P/4) that the provision of art1565 is aimed to protect the shares in theestate of their parents guaranteed by lawto the children.

38.No share in the present suit property wasguaranteed to the respondentsNo.1(Respondent No.1 is the son ofRespondent No.3 and her husband) under anyof the law existing at the time of salenot even under article 1784 whichguarantees share in the legitime portionto the descendents.

39.If we assume for a moment that no otherlaw other than art 1565 protects the share

34

of the current suit property to therespondent No.1, the assumption is stillwrong as the parents even though beingprohibited from selling the present suitproperty to some of the children withoutobtaining the consent of the others underArticle 1565, the parents can without anyrestriction sell the present suit propertyto any other person and Article 1565 isnot violated in this case as the suitproperty does not form the part of thelegitime portion.

40.Article 1565 does not make the childrenco-owner in the self acquired property ofthe parents.Hence the article 1565 doesnot provide for accrual of rights.And assuch the self acquired property can bedisposed to any other person withoutviolating article 1565, only exception issale to some of the children withoutobtaining consent of the remainingchildren.

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41.The commentaries of Dr.CunhaGonsalves,Tratade de direito civil ,volVIII ,page 506-507 are irrelevantconsidering the landmark judgment of theHonble supreme court in Syndicate BankV/s Prabha D. Naik and anr reported in2001(4) SCC page 713 which has beencompletely disregarded by the Honble HighCourt under erroneous pretext ofprotecting share in the legitimeportion.The Honble Supreme Court is theCourt of Record and law declared by itcannot be disregarded. commentaries ofDr.Cunha Gonsalves appear at Page 8 of theJudgment of Second Appeal No.24 of2012(Annexure P/4).(Page 106 of SLP)

42.The commentaries of Dr.CunhaGonsalves,Tratade de direito civil ,volVIII ,page 506-507 are also onlypertaining to contracts. It is held in thecommentaries that the article 1565 of thePortuguese civil code is a protection oflegitima(legitimate shares) of thedescendents. But the present suit property

36

is not part of the legitima and such thequestion of protecting of any share doesnot arise at all.

43.The Respondent No.1 did not have any sharein the suit property at the time of sale.

44.The Honble High Court in the SecondAppeal No.24 of 2012(Annexure P/4) heldthat the suit property is part of thelegitime portion. Though even therespondents did not advance anycontentions saying that the suit propertyis part of the legitime portion nor doesany evidence exist on record in support ofthe opinion of the High Court that thesuit property is part of the legitimeportion. The assumption of the High Courtthat the suit property is part of thelegitime portion is not based on evidenceand as such illegal.

45.Right of inheritance to the estate leaverarises only on the death of estate leaverin the property left by him on the date of

37

his death and not in any other propertyand as such on the day of the execution ofsale deed the respondent No.1 did not haveany share in the suit property at thattime.

46.No one is an heir to a living person.Before the death of the ancestor, anexpectant heir or distributee has novested interest but only a mere expectancyor possibility of inheritance. Such anindividual cannot on the basis of his orher prospective right maintain an actionduring the life of the ancestor to cancela transfer of property made by theancestor.

47.The article 1784 in section III of thePortuguese Succession law titled LEGITIMEAND INOFFICIOUS DISPOSITIONS defines theterm LEGITIME PORTION.

Article 1784The legitime is the portion of theproperty which the testator may notdispose of, since it is reserved by law

38

to the heirs who are relatives inascending or descending direct line.Single ) this portion consists of halfof the property of the testator, notprecluding the provisions of articles1785, no. 2, and 1787.

48.The Honble High Court in the judgment ofSecond Appeal No.3 of 2006(Annexure P/5)which has been taken as precedent fordeciding the Second appeal No.24 of 2012at para 10 has held that on the grounds ofarticle 1766 alone the sale of the suitproperty of second appeal No.3 of 2006 isnull and void:

In the present case, considering thatit is not in dispute that upon the deathof the husband of appellant no.3,noinventory proceedings were initiated topartition his estate nor any partitionin fact has been carried out whereby thesuit properties were allotted to theappellant no.3,the question of theappellant no.3 disposing the saidproperties in favour of appellant nos. 1

39

and 2 has no legal effect. It is also tobe noted that the appellant no.3 hadlineal descendents and such exercise onher part would affect the legitime ofsuch descendants. In fact reading ofprovisions of Article 1766 of thePortuguese Civil Code,if such transfersare made and the above circumstancesexist, the transaction is null andvoid.As such ,on this ground alone theimpugned sale deed is null and void andhas no legal effect.

49.As such the learned single judge of theHonble High Court erred in relying onarticle 1565, the issue which is thoughdecided in Second Appeal No.3 of2006(Annexure P/5) suffers from grossirregularity.

50.The Learned Judge in Second Appeal No.3 of2006 (Annexure P/5) while deciding theissue of article 1565 at para 11 haswrongly held that(Page 126 of SLP):

40

Article 1784 of the Portuguese CivilCode Provided that the legitime meansthe portion of the properties that aperson cannot dispose of because it hasbeen set apart by law for the linealdescendants or ascendants.

51.The Learned Judge erroneously replaced theterm testator with the term personthus changing the definition of thelegitime portion,which then makes thearticle 1784 a provision pertaining todisposal of property during life time of aperson(by sale or gift) and nottestamentary succession. The wrong view ofarticle 1565 being provision of successionlaw came into existence only because oferroneous amendment of article 1784 in thesecond appeal No.3 of 2006 (AnnexureP/5),combined with the article 1565 whichis actually a provision of contracts ofsale;the article 1565 of the Portuguesecivil code is as follows:

The parents or grandparents cannot sellnor mortgage to children or grand

41

children, if the other children or grandchildren did not consent in the sale ormortgage.Sole para-if any of them refuse hisconsent or is incapable of giving it,orsuch consent is unable to beobtained,this shall be obtained by thefamily council,arranged in terms ofarticle 207,which shall be called forthis purpose

52.The replacement of the term testatorwith the term person in article 1784allows the article 1784 and article 1565to be read together thus merging theprovision of succession law(article 1784)and the provision of contracts law(article1565) which is a gross error.

53.The article 1784 clearly states that thelegitime is the portion of the propertywhich the testator may not dispose off,since it is reserved by law to the heirs,the parent who disposes his property byway of a will is called the testator.

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54.In the present case neither of the parentsis a testator as the property wasdisposed not by way of a will butthrough sale deed executed with thePetitioner and Respondent No.4 and 6.

55.As per the succession law still in forcein Goa Only the property which a parentcannot dispose off in a will, since it isreserved by law to the heirs is called theLEGITIME PORTION, and not which has beendisposed by way of a sale during theirlifetime and which is not part of any sortof inheritance.

56.Under the succession law in chapter Ititled PRELIMINARY PROVISIONS,In article1735 which is the first provision of thechapter, states that:

Article 1735Any person may succeed, upon the deathof another, to all his/her property, orto a part thereof, as a result of adisposition of a will or of the law. In

43

the first case, there is testamentarysuccession; in the second, intestatesuccession

57.As clear from the text of article 1735that there exists only two types ofSuccessions in the Portuguese civilcode,which are:

a)The testamentary Succession and theb)Intestate succession.

58.The article 1565 cannot be placed in anyof the two types of succession, as noperson can succeed to any property whichcan be said to be protected under article1565, by will or under any other law, noreven under the said article 1565 itself.assuch the learned judge of the Honble HighCourt was erred in declaring article 1565to be provision of succession law onlybecause article 1565 prohibits executionof contract of sale to some childrenwithout obtaining consent of remainingchildrens.

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59.Article 1565 does not provide accrual ofrights, but only enforcement. As such therespondent No.1 did not have any co-ownership right in the suit property underarticle 1565 at the time of sale of theproperty.

60.In fact the article 1565 only puts aprohibition on execution of a contract ofsale with the childrens withoutobtaining the consent of the others anddoes not result in any ownership rights toany of the children in the suit propertynor leads to protection of any right orshare in the property.

61.It is a fact that a person by no way underexisting laws can dispose a property byway of a execution of a sale deed withhis children or anyone else after hisdeath.

62.Only possible way of disposing off aproperty after death is by way of awill.as such the article 1565 cannot be

45

construed as in continuation with thesuccession law as article 1565 is aprovision of the contracts law of thePortuguese civil code and it does not andcannot prevent the parents from disposingof the present suit property to any otherperson.

63.The judgment of the High Court in SecondAppeal No.3 of 2006(Annexure P/5) whichhas been heavily relied on for decidingthe impugned judgment merely decideswhether the article 1565 of Portuguesecivil code which actually a provision ofthe chapter of contract of sale of thePortuguese civil code is not repealed bythe Transfer of property Act, which is avery narrowly framed question and does notconsider the other laws which wereextended to the state of Goa.

64.As per the judgment of the supreme courtin Syndicate Bank V/s Prabha D. Naik andanr wherein the Honble supreme court heldthat:

46

Be it noted that Article 535 containingthe provisions of limitation in chapterIII regulating the contracts in thePortuguese Civil Code which how-ever,stands replaced by the Indian ContractAct. The prescribed period forlimitation pertaining to the contractsbeing in the same Chapter under ContractAct Cannot be said to be surviving as anindependent provision rather than goingalong with the other provisions of thecontract which by reason of adaptationof Contract Act stands replaced. It isthus cannot but be said to be an impliedrepeal. The necessity of having anexpress repeal was never felt by reasonof the factum of adaptation of IndianContract Act in so far as Chapter II isconcerned. Either the Chapter survivein its entirety or it perishes in itsall spheres it is one chapter dealingwith contract and prescribed the periodof enforcement of the same: nodissection is possible.

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65.The article 1565 only provides forenforceability of a certain nonexistentright, that is it prohibits execution ofcontract of sale with some of the childrenwithout obtaining consent of the others.But what about the accrual of the rights?.The children do not accrue any right intothe self acquired property during thelifetime of parents either by article 1565or by any other law in existence.

66.If the article 1565 is still allowed tosustain the result is an absurdity. It isheld by the Honble High Court in theimpugned judgment the article 1565prohibits the parents from selling theirself acquired suit property to theirchildren in detriment to the remainingchildren. But the parents cannot beprevented under article 1565 from sellingtheir self acquired property to thepersons other than their children,depriving all of their children. This ispossible as the present suit property isnot part of the legitime portion and as

48

such no restrictions on sale of the suitproperty are applicable under thesuccession law or any other law inexistence.

67.And as held by the Honble Supreme courtin Syndicate Bank V/s Prabha D. Naik andanr .

The Portuguese Civil Code provides bothfor accrual of right and itsenforceability and when the right standsdivested, question of enforceability ofthe right arising from a differentsource and other than code, would notarise. Either the code applies in itsentirety or it does not-there is no halfway about it.

68.Article 1565 of the law of contract ofsale of the Portuguese civil code or thesaid provision of succession law aswrongly held by the Honble High Court inthe impugned judgment is a mere proceduralaspect and not a substantial right.

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69.Further the Honble Supreme CourtSyndicate Bank V/s Prabha D. Naik and anrhas held that:

Incidentally, the legislature issupposed to be aware of the need of thesociety and the existing state of law:there is no reason whatsoever toconsider that the legislature wasunaware of the existing situations asregards the Portuguese Civil laws with adifferent provision for limitation.Needless to record the special referencehas been made to the State of Jammu &Kashmir but after incorporation of theState of Goa, Daman & Diu within theIndian Territory, if there was anyintent of having the local law beingmade prevalent there pertaining to thequestion of limitation only, there wouldhave been an express exclusion and inthe absence of which no contra intentioncan be deduced, neither any contrainference can be drawn.

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70.If allowed to exist this provision ofarticle 1565 is an absurdity and nopurpose is accomplished, the parentsinstead of selling the property to thechildren can sell the property to anyother persons.The whole purpose of incorporating this provision, which theHonble High Court held to be forprotection of legitime share is a wrongjustification for nullifying the legallyvalid sale deed.

71.The Honble High Court has not framed anysubstantial questions while deciding theJudgement of Second Appeal No.24 of2012(Annexure P/4). Instead the issues ofthe judgment of Second Appeal No.3 of 2006has just been assumed to be the issues ofthe present suit without considering thefacts and evidence of the present suit.

72.It is agreed that the Honble High Courtcorrectly answered the substantialquestion raised in the Second Appeal No.3of 2006(Annexure P/5) i.e whether the

51

provisions of Article 1565 of thePortuguese civil code are not repealedunder Section 44 of the transfer ofproperty act.

73.But the Honble High Court has not decidedwhether the Article 1565 has been repealedor not by any of the statutes extended tothe territory of Goa under The Goa,Damanand Diu (Laws) No.2 Regulation,1963.

74.In fact the sale deed which was inquestion in Second Appeal No.3 of 2006(Annexure P/5) was essentially declarednull and void under article 1766 of thePortuguese Civil code a provision dealingwith communion of properties.

75.The repeal or non repeal of article 1565was irrelevant to the said Second AppealNo.3 of 2006(Annexure P/5) as the sale wasdeclared null and void under article 1766, as such the parties did not find itnecessary to challenge the part of thejudgment of Second Appeal No.3 of 2006

52

which had held that the article 1565 to beconstrued in continuation of thesuccession law.

76.The Honble High Court committedillegality in blindly applying thejudgment of Second Appeal No.3 of2006(Annexure P/5) to the present suitwithout considering the facts andcircumstances of the present case,thefacts of the Second appeal No.3 of 2006are completely different then that of theSecond Appeal No.24 of 2012(Annexure P/4).

77.The article 1565 is a provision whichfinds its place in the chapter of civilcode titled CONTRACT OF SALE.

78.The respondent No.1 is well aware that hecannot get a co-ownership right in theself acquired property of the parents intheir lifetime, under any of theprovisions of the succession law nor evenunder article 1565 of the Portuguesecontract law.

53

79.The parents were free to dispose of theself acquired suit property as and howthey want, there was no expressprohibition on disposal of the selfacquired property by the parents under theexisting laws at the time of the executionof the sale deed, except the so calledarticle 1565, of the law of contract ofsale of the Portuguese civil code whichprohibit execution of contract of salewith the children without obtainingconsent of the remaining.

80.The High Court also failed to consider thelaw laid in the judgment of the HonbleSupreme Court which is binding on theHonble High Court.

81.The High Court has completely ignored theexistence of the Indian Contract Act bywhich the chapters in Portuguese CivilCode pertaining to contracts has beenrepealed

54

82.And also complete disregard for the lawlaid down by the Court of Record,TheHonble Supreme court of India inSyndicate Bank V/s Prabha D. Naik and anrreported in 2001(4) SCC page 713.

83.Further it was held by the High Courtwithout any evidence on record that thesuit property being part of the legitimePortion is prohibited from disposal underArticle 1565.

84.The facts and evidence pertaining to thesecond appeal No.3 of 2006 have beencompletely substituted for the facts andevidence of the present suit which is agross irregularity.

85.The proceedings of the said Second AppealNo. 24 of 2012(Annexure P/4) and CivilApplication Review No. 11 of 2014 Which isthe Impugned Judgment are illegal,invalid, incorrect, null and void in theeyes of the law.

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86.The Honble High Court nor any other courthas decided whether the suit property ispart of the legitime portion of theparents, no such evidence exists on recordand even the Respondents have not advancedany such contention saying that the suitproperty is part of the legitime portionsof the parents and has been prohibitedfrom disposal under article 1784 of thesuccession law.

87.The Honble High Court has wrongly made afalse assumption that the suit propertybeing part of the legitime portion of theparents prohibited from disposal and forthis reason further concluded that article1565 is provision of succession law.inactuality the Honble High Courterroneously committed fallacy of ReverseCircular reasoning. That is first it isdecided that the suit property isprohibited from sale under article 1565,then it is inferred that since article1565 prohibits sale of the suit propertywithout the consent of Respondent No.1 the

56

Respondent No.1 has ownership right in thesuit property, and since article 1565gives ownership right to the respondentNo.1 it is inferred that article 1565 mustbe protecting share of the RespondentNo.1,then it is inferred that sincearticle 1565 is protecting share of theRespondent No.1 the suit property must belegitime portion and the article 1565 mustbe provision of the succession law.

88.The Honble High Court also failed to seethat if a property is held to be part ofthe legitime portion during the lifetimeof the parents only because some provisionof the law of contracts of the Portuguesecivil code prohibits its sale to somechildren without obtaining the consent ofthe others, The property has to be part ofthe legitime portion also when the sale isexecuted with persons other than thechildren or grandchildren, which is notthe case about the present suit propertyif the opinion of the High Court incalling the suit property part of the

57

legitime portion are considered to bevalid.

89.In fact the status of the present suitproperty being legitime share, as per theopinion of the High Court, changes whenthe parties between whom sale of the suitproperty is executed are changed fromchildren to some other persons, whichresults in an absurdity as when thepresent suit property is sold to otherperson who are not children the propertyis not prohibited from sale under article1565 and as such turns out to be notlegitime portion of the parents.

90.The only justification relied by theHonble High Court for holding the presentsuit property as part of the legitimeportion is the prohibition put by article1565 on execution of contract of sale tosome childrens without obtaining consentof the others and not under the provisionof Article 1784 of the succession lawwhich in fact decides the legitime

58

portion. The facts pertaining to the suitproperty were completely ignored by theHonble High Court while deciding theimpugned judgment.

91.The High Court erred to ignore the factthat The Indian Contract Act has repealedthe chapter of contracts act of PortugueseCivil Code containing article 1565.

92.The Honble High Court has disregarded thelaw laid down in the Judgment of theHonble Supreme Court in Syndicate BankV/s Prabha D. Naik and anr which isbinding on the Honble High Court,supremecourt being the court of record.

93.The Honble Supreme Court in the case ofRupa Ashok Hurra Vs Ashok Hurra &Anr[(2002)4 SCC 288] a constitution Benchhas held:

Article 141 says that the law declaredby the Supreme Court Shall be binding onall courts within the territory of Indiaand Article 144 directs that all

59

authorities civil and judicial, in theterritorty of India,shall act in aid ofthe Supreme Court. It is a Court ofrecord and has all the powers of such aCourt including power to punish forcontempt of itself(Article 129).

94.The impugned order dated 20th March 2014 inCivil Application Review No.11 of 2014 and21st June 2012 dismissing Second Appealfiled before the Honble High Court, iserroneous, invalid, incorrect, improper,null and void in the eyes of the law andas such, is liable to be set aside;

95.On the face of the above Special LeavePetition, the petitioner has made out agood case to succeed. The averments,orders and pleadings therein, a primafacie case is made out which warrants themaintainability of the Special LeavePetition.

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6. MAIN PRAYERThe petitioner, therefore, pray that yourLordships may graciously be pleased to:-

a) Grant Special Leave to Appeal against theimpugned Final Order/Judgment dated 20th

March 2014 passed by the Honble High Courtof Bombay at Goa in Civil ApplicationReview No.11 of 2014.

b) That this Honble Court may be pleased todecide this Special Leave Petition in theabsence of the Petitioner (in case thePetitioner fails to appear personally or bythe Power of Attorney Holder forunavoidable reasons) for any oral argumentas the facts and evidence stated in thepresent appeal are already on record.

c) That this Honble Court may be pleased topass such other order or to give such otherdirection protecting the interest of thePetitioner as this Honble Supreme Courtmay think fit and proper in the facts andcircumstances of the present case so as to

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IN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISIDICTIONI.A. No._________ OF 2014

INSPECIAL LEAVE PETITION (CIVIL) NO_______OF 2014

IN THE MATTER OF :-

Smt.Vijaya Gajanan Naik Petitioner

Versus

Shri. Suresh Basu Naik & Ors. Respondents

APPLICATION TO PERMIT THE POWER OF ATTORNEYHOLDER TO APPEAR IN PERSON BEFORE THE HONBLESUPREME COURT.

TOTHE HONBLE CHIEF JUSTICE OF INDIAAND HIS COMPANION JUSTICES OF THESUPREME COURT OF INDIA

THE HUMBLE PETITION OFTHE PETITIONERABOVE NAMED

MOST RESPECTFULLY SHOWETH:1. The applicant had filed accompanyingSpecial Leave Petition against the impugnedFinal Order and Judgment passed by the HonbleHigh Court of Bombay at Goa in Civil

168

Application Review No.11 of 2014 dated 20th

March 2014.

2. That My son Mr.Vishal Gajanan Naik bepermitted to appear in person before this courtas my duly authorized representative/Power ofAttorney Holder to argue in the Special LeavePetition at the time of hearing. The saidSpecial Power of attorney is annexed herewithand marked as Annexure P/9 (Pages;170 to 176)

3. That I due to my health problems will notbe able to attend the day to day proceedings ofthe Special Leave Petition.

4. That due to previous refusal to take upthe matter in the High Court by the High CourtAdvocates and trying to mislead the petitioner,the petitioner has not approached any advocateas all the three advocates the petitionerapproached have misleaded the petitioner andhas also misleaded the Honble High Court.

INDEX.pdf1cover page.pdf2index.pdf3SynopsisAndListofDates.pdf

CERTIFIED COPY.pdfNPSCN_002.pdfNPSCN_003.pdf

PETITION.pdfPETITION.pdf4Memo of PartiesAndQuestionofLaw.pdf5Grounds.pdf

61(1).pdf

affidavit.pdfaffidavit1.pdfaffidavit2.pdfaffidavit3.pdf

annexure P1.pdfNPSCN_002.pdfNPSCN_003.pdfNPSCN_004.pdfNPSCN_005.pdfNPSCN_006.pdfNPSCN_007.pdfNPSCN_008.pdfNPSCN_009.pdfNPSCN_010.pdfNPSCN_011.pdfNPSCN_012.pdfNPSCN_013.pdfNPSCN_014.pdfNPSCN_015.pdfNPSCN_016.pdfNPSCN_017.pdfNPSCN_018.pdfNPSCN_019.pdfNPSCN_020.pdfNPSCN_021.pdfNPSCN_022.pdf

annexure P2.pdfNPSCN_002.pdf

annexure P3.pdfNPSCN_002.pdfNPSCN_003.pdfNPSCN_004.pdfNPSCN_005.pdfNPSCN_006.pdfNPSCN_007.pdfNPSCN_008.pdfNPSCN_009.pdfNPSCN_010.pdfNPSCN_011.pdf

annexure P4.pdfNPSCN_002.pdfNPSCN_003.pdfNPSCN_004.pdfNPSCN_005.pdfNPSCN_006.pdfNPSCN_007.pdfNPSCN_008.pdfNPSCN_009.pdfNPSCN_010.pdfNPSCN_011.pdfNPSCN_012.pdfNPSCN_013.pdf

annexure P5.pdfNPSCN_002.pdfNPSCN_003.pdfNPSCN_004.pdfNPSCN_005.pdfNPSCN_006.pdfNPSCN_007.pdfNPSCN_008.pdfNPSCN_009.pdfNPSCN_010.pdfNPSCN_011.pdfNPSCN_012.pdfNPSCN_013.pdfNPSCN_014.pdfNPSCN_015.pdfNPSCN_016.pdfNPSCN_017.pdfNPSCN_018.pdfNPSCN_019.pdfNPSCN_020.pdfNPSCN_021.pdfNPSCN_022.pdfNPSCN_023.pdfNPSCN_024.pdf

annexure P6.pdfNPSCN_002.pdfNPSCN_003.pdfNPSCN_004.pdf

annexure P7.pdfNPSCN_002.pdfNPSCN_003.pdfNPSCN_004.pdfNPSCN_005.pdfNPSCN_006.pdfNPSCN_007.pdfNPSCN_008.pdfNPSCN_009.pdfNPSCN_010.pdfNPSCN_011.pdf

annexure P8.pdfNPSCN_002.pdfNPSCN_003.pdfNPSCN_004.pdfNPSCN_005.pdfNPSCN_006.pdfNPSCN_007.pdfNPSCN_008.pdfNPSCN_009.pdfNPSCN_010.pdfNPSCN_011.pdfNPSCN_012.pdfNPSCN_013.pdfNPSCN_014.pdfNPSCN_015.pdfNPSCN_016.pdf

IA.pdfIA.pdfia.pdf

annexure P9.pdfNPSCN_002.pdfNPSCN_003.pdfNPSCN_004.pdf