Bombay High Court
Ignatius Francis Dsouza And Anr vs Michael Sylester Dsouza And Anr on 12 March, 2025
2025:BHC-GOA:464
2025:BHC-GOA:464 (8) WP 196 of 2024
Sonam
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 196 OF 2024
1. Mr. Ignatius Francis D'Souza,
Son of late Peter Japheth D'Souza,
Age 72 years, married, retired.
2. Mrs. Catherine Sequeira,
Wife of Petitioner N.1, ... Petitioners/
Age 70 years, occupation housewife, original
Both residing at 403, Sunjoy View, Applicants
Amboli, Andheri (W), /Decree
Mumbai-400058. Holders
Versus
1. Mr. Michael Sylester D'Souza,
Son of late Peter Japheth D'Souza,
Major of age, married,
Occupation business
2. Mrs. Ana Maria Joanita Mascarenhas,
Wife of Mr. Michael Sylester D'Souza,
Major of age, occupation housewife, ...Respondents/
Both residing at House No. 65/1, Original Opp./
Bondir Vaddo, P.O. Anjuna, Judgment
Bardez, Goa. Debtors
Mr. Sudesh Usgaonkar, Senior Advocate with Ms. Cidalia
Ana Lobo, Advocate for the Petitioners.
Mr. Nigel Da Costa Frias, Advocate for the Respondents.
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(8) WP 196 of 2024
CORAM : VALMIKI MENEZES, J.
DATED : 12TH MARCH, 2025.
ORAL JUDGMENT:
1. Heard learned Advocates for the parties.
2. Rule.
3. Rule. Rule is made returnable forthwith; at the request of
and with the consent of learned Counsel for the parties, the
matter is finally heard and disposed of. Learned Advocate Ms.
Cidalia Ana Lobo waives service on behalf of Petitioners and
learned Advocate Mr. Nigel Da Costa Frias, waives service for
Respondents.
4. This petition takes exception to order dated 16.07.2022,
passed by the Civil Judge Senior Division 'A' Court Mapusa in
Regular Execution Application No. 12/2020/C/A, to enforce
the Judgment and Chart of Partition dated 13.03.2020, under
Section 467 of the Goa Succession, Special Notaries and
Inventory Proceeding Act, 2016. The Execution Proceedings
were taken up to execute Judgment in Inventory Proceeding
No. 21/2015/C, in which the estate of late Antonio Jose
D'Souza, late Conceicao D'Souza, late Peter Japheth de Souza
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(8) WP 196 of 2024
and late Luiza M. L. D'Souza who are grandparents was allotted
to the Petitioners and Respondents.
5. In the Inventory Proceeding, Item No. 3 which was
described as half right in the immovable property known as
"Bondirwada", totally admeasuring 1200 sq. mtrs surveyed
under 391/2 of village Anjuna, Bardez, Goa wherein there
exists residential house bearing H. No. 65/1, was taken in
auction by the Petitioners; in the same auction, the Respondents
took Item Nos. 1(Immovable Property admeasuring 975 sq.
mtrs and surveyed under No. 401/2 of village Anjuna, Bardez,
Goa) and Item No. 2(Immovable property known as
"Bondirwada", admeasuring 300 sq. mts. surveyed under No.
384/9 of village Anjuna, Bardez, Goa).
6. In the Execution Application, which was opposed by
Respondent No.1, the Deed of Confirmation of Partition dated
25.05.1982 between late Mr. Peter Japheth de Souza (son of
Antonio Joao De Souza) and his wife Ms. Luiza D'souza
(parents of the Petitioner and the Respondent herein) of the first
part, and John Francis De Souza and Nicholas Martin De
Souza of the second part, was placed before the Executing
Court to prove that property which formed Item No. 3, (which
was exclusively surveyed under Cadastral No. 193) was
allotted to Ana De Souza (widow of late Rosario De Souza) and
Julia De Souza(widow of Jose De Souza); The Northern part
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(8) WP 196 of 2024
under Cadastral No. 192 known as "Cainsua" was allotted to
Julia D'Souza and Rosario D'Souza. The Partition Deed was
executed in the year 1982, and it confirms the partition that took
place in 1943 as stated in clause 1 of the Deed. Clause 1 of the
Deed refers to property under Cadastral No. 192 which
corresponds to Northern part of Survey No. 391/2 while,
Cadastral No. 193 corresponds to Southern part of the Survey
No. 391/2 allotted to Ana and Jose D'Souza the present
Inventory Proceeding was conducted.
7. All these documents were before the Executing Court
which was vested with the powers to consider these documents
and determine the correct location of the property allotted in
the Inventory Proceeding. Instead of considering these
documents, the Executing Court has at paragraph No. 10 of its
order proceeded on a technicality and rejected the relief in
respect of the half right in the Survey No. 392/2 along with the
house standing therein. The Executing Court has erroneously
concluded that this relief cannot be granted, since the property
has not been partitioned and half right of the estate leaver is still
not determined. This finding is contrary to the aforementioned
two documents which are part of the record and find no
reference in the impugned order. Had these documents being
considered in the manner referred to above, the Executing
Court would arrive at no other conclusion than, that the
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property, Item No. 3 allotted to the Petitioners in auction in the
Inventory Proceeding, in fact corresponds to the Southern
portion of Survey No 391/2, which corresponds to old
Cadastral No. 193 as referred to in the partition deed (clause 1)
and the cadastral plan produced on record. The finding is
therefore clearly perverse. Accordingly, the impugned order to
the extent that it rejects the claim of the Petitioners in so far as
Item No. 3 is concerned stands reversed.
8. It is also made clear that Item No. 3 corresponds to the
immovable property known as "Bandirwada", totally
admeasuring 1200 sq. mtrs surveyed under 391/2 of village
Anjuna, Bardez, Goa and Executing Court shall now execute
the Chart of Partition/Judgment and Final Decree dated
13.03.2020 by enforcing/recovering possession of the area
under Cadastral No. 193 with the house, corresponding to the
Southern portion of Survey No. 391/2 along with the residential
house bearing No. 65/1 standing therein and hand over the
possession of the same to the Petitioner. It is further clarified
that the house bearing No. 65/1 shown in survey no. 391/2 is
shown in the partition deed along the line running East-West
between Cadastral No.193 and 192 and the portion of the house
on its South i.e. in Cadastral No. 193, possession of which shall
be handed over in execution of the Decree by the Executing
Court to the Petitioners.
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9. The Executing court shall now proceed to execute the
Judgment and order dated 13.03.2020, in so far as Item No. 3
in the aforementioned manner and complete the execution
within 3 months of this order.
10. Rule is made absolute in the above terms.
VALMIKI MENEZES, J.
12th March, 2025
