2011 (6) AIR Bom R 440 ::AIR 2012 (NOC) (SUPP) 400 (BOM.) (GOA BENCH)

Bombay High Court ( Goa Bench )

Hon'ble Judge(s): S. J. Vazifdar, U. D. Salvi , JJ

(A) Evidence Act (1 of 1872) S. 41 — Deed of declaration — Showing status of heirs — Executed as per Section 165 of fee Notarial Law, 1935 and Section 175 of Law No 2059 dated 6th August, 1951 as per provision of Portuguese Law — In not a judgment of a Court of Law — It does not constitute judgment in rem {" Article 165 of Notarial Law (1935) merely states that status of heirs may be proved for the purposes indicated therein by way of a deed of qualification of heir done before the notary. It is thus only a mode of proof. It is not conclusive proof. If the declarations contained in the deed are established to be incorrect, it cannot bind third parties who are affected thereby. It cannot be said that the deed of declaration constitutes a judgment in rem. Indeed, it is not even a judgment of a Court of Law. (Para 42,45) "}

(B) Portuguese Civil P. C. (1939) Art. 1566 — Right of pre-emption — Co-proprietors selling their share in suit property — They thereby ceased to be co-proprietors — They would not have right of pre-emption over suit property The right of pre-emption is conferred upon ' co-proprietors of indivisible or undivided things ' ‌ Article 1566 of Portuguese Civil Procedure Code (1939) further provides that the right cannot subsist once a co-proprietor/' joinder' ‌ has alienated his or her right in the property Upon such alienation, the co-proprietor/joinder ceases to be a co-proprietor/joinder of the thing/property {" In the present case, Respondent Nos. 7 and 8 have admittedly sold their interest in the suit property to Respondent No. 9. It is not their case that they retained any interest in the suit property. They have, therefore, ceased to be co-proprietors/joinders within the meaning of those expressions in Article 1566. They thereby ceased to have any right of pre-emption. In other words, they cannot be considered to be ' œjoinders' ‌ who wish to have the divisible or undivided right of the other co-proprietors viz. Respondent Nos. 1 to 6. (Para 56) "}

(C) Registration Act, (16 of 1908) S. 17 — Inventory proceedings — Decree of inventory Court — Does not require registration (Para 97)

(D) Specific Relief Act (47 of 1963) S. 20 — Specific performance of contract — Suit for — Agreement to sell executed by co-owners having 3/4th share — Facts showing that plaintiff was ready and willing to perform his part of contract — Purchase of property by third party during pendency of suit with full knowledge of right of plaintiff — Suit property was small island close to main land bounded on all sides by sea — Similar property was not easily available — Plaintiff entitled to specific performance of agreement to the extent of share of defendant (Para 109,110,111,121)