Parties are referred to with reference to the position in the trial Court.
Hence preliminary decree is passed for separation of the plaintiffs and defendants 28 ad 29 share of 1/8th in Mollans and 1/4th from Bainguinim to be demarcated with the help of Collector or any gazette subordinate of the Collector as provided under Sec.
Thereafter, the one half share in property M and the whole of property B came to vest with the aunt fathers sister of Suriaji and Gones.
Gones was on the occasion of transfer to make reimbursement of the half of money paid by Suriaji to Laxmi towards the dowry account to his wife.
In the year 1919, it was pointed out that the undivided joint family of the Navelkars came to be dissolved.
The actual decretal portion reads as follows The suit is partly decreed, whereby it is held and declared that the plaintiffs together with defendants No.
Collector to companyply within six months as far as possible.
17/1, 27/1, 25/1, 23/1 and 24/1.
It is number the plaintiffs case that they had numberknowledge of registration of property in the name of Shantabai way back in 1940 as a final act based on companyclusions of inventory proceedings.
After death of Gones, plaintiffs were number given their share.
The companysideration was acknowledged as paid in the settlement deed dated 17.11.1915.
Later on a deed styled as a deed of dissolution of accounts, payments and obligation came to be executed on 21.01.1919.
Survey Authorities directed to carry out mutation of the plaintiffs claim in respect of Survey Numbers fallen to portions C, B F viz.
Consequently the Deed of partition dated 31.3.1969 by which the two properties were divided by and between the companycerned defendants including the plaintiffs, defendants number 28 and 29, is declared null and void as such is liable to be cancelled.
Under the same, the donors have gifted the rights obtained by Suriaji under the Gift Deed executed in his favour under the document of 1913 by his grandfather.
The further case of the plaintiffs is that half share of Gones in property M came to be sold in public auction in execution proceedings against Gones.
As far as the inventory proceedings are companycerned, his companytention is that this was the case which was set up by the defendants.
For a decree to rectify the survey records to include their names together with the names of defendant Nos.
This meant 1/4th right in property M and 1/2 right of B was sold to Suriaji.
Despite the dissolution of the Hindu undivided family of Navelkars, the two branches companytinued to live in their own ancestral house under the same roof.
54 P.C. r w O. XX R. 18 1 of P.C. respecting the possession of the third parties as far as possible from the area under alphabetical letters C,B F of Deed of Partition dated 31.3.1969 and the companyresponding survey numbers given to the said portion C, B F viz.
On 20.12.1961, the territories of Goa, Daman and Diu were included as Union territories.
1, 3 and 5 jointly and severally, to pay to the plaintiffs their share of income in proportion to their share of income in proportion to their aforementioned right in the suit properties since 1979, the share which the said defendants have numberright to retain with them.
Having acquiesced with all these, number Gonesh and his heirs are estopped from opening of the succession after long span of over two decades.
17/1, 27/1, 25/1, 23/1 and 24/1, till the partition is effected and companyfirmation by this Court.
1 to 6 in the said two properties being 3/8th and 1/4th respectively and the share of the remaining defendants of the Branch of Vitol Porobo being each in the suit properties.
The two appeals which were carried by the appellant before the High Court were dismissed.
The appellants are the plaintiffs.
The present suit is filed based on the sale deed executed by the paternal aunt of Gones and her husband expressly in favour of Suriaji and his wife and the other branch.
Thereafter the following findings have been entered After recording of properties in the name of Shantibai, she and her heirs have enjoyed suit properties in exclusion to plaintiffs and supporting defendants openly.
Plaintiffs have failed to prove that their right to sue based on jointness in enjoyment subsisted, and they would be entitled to sue.
Therefore, Gones became entitled to 1/8th of the property M and 1/4th of the property B as a result of purchase made under deed of sale dated 17.11.1915.
However, by gift deed dated 14.04.1925, what was gifted was numberdoubt the 1/4th right of M acquired by Suriaji from his grandfather but which companysisted of 22.5 hectares.
We may refer to following genealogy chart, which Signature Not Verified will facilitate better understanding of the issues Digitally signed by CHARANJEET KAUR Date 2019.08.21 165402 IST Reason involved ANNEXURE P 1 NAVELKAR FAMILY VINTECTEXA POROBO NALVELKAR VINTOLA POROBO NAVELKAR WIFE PADMAVATI PORBINI WIFE LAXIMI VINTOLA POROBO NAVELKAR SONS SON DAUGHTER BALAKRISHNA PORSHOTTAMA SRNIVAS NAGENDRA RAMACHANDRA PIRU ALIAS SOROSPATI POROBO NALVELKAR POININ GROUP P BRANCH OF VENKTEXA GROUP BRANCHES OF VITOL SON SON DF.7 TO DF.27 SURIAJI POROBO GONES POROBO NAVELKAR NAVELKAR WIFE PREMAWATI WIFE SHANTIBAI P1 P3 D28 PRABHAKAR PREMANAND SMT.
They had four sons.
Thus, it is pointed out after the gift deed dated 14.04.1925, Gones had 45 hectares.
Property belonging to Gones came to be sold in 1937.
It was found, inter alia, that Suriaji had admitted in document dated 21.01.1919 that 1/8th of property M and 1/4th of property B was purchased by him for Gones and Gones was to pay his companytribution, as indicated.
In the year 1915, Piru along with her husband, by a deed of sale dated 17.11.1915, sold in equal parts the remaining half in the property M and the entire property B to Suriaji and Laxmi.
1 to 6 and the defendant Nos.
Expatiating the argument, it is pointed out that the extent of property M was approximately 90 hectares, property B companysisted of nearly 31 hectares.
Venctexa Suria Porobo Navelkar was married to one Padmavati.
It is a case of oath against oath.
There was numbertime limit for Gones to exercise his option under the settlement deed.
28 and 29 are entitled to 1/8th share in the property Mollans and 1/4th share in the property Bainguinim.
In the year 1925 Suriaji and his wife Santibai gifted in favour of Gones the 1/4th of property M acquired by Suriaji from his grandfather under the gift deed dated 09.03.1913.
The appellants claim one eighth share being one half of one fourth of property M companyveyed under a sale deed to Suriaji and his wife.
30 and 31 in particular from negotiating deal of any type in respect of the suit properties and or portion thereof and or restrain them from disposing off the same by or in any manner whatsoever.
There exist two properties known as Mallons hereinafter referred to as M and Bainguinim hereinafter referred to as B situated in the village of Bainguinim in Goa.
Defendant number 5 is the sister of the defendants number 1 and 3.
The defendants as numbered by the trial Court can be classified in four groups, one group companysisted of defendants number 1, 2, 30 and 31, second group companysisted of defendants number 3 to 6, third group companysisted of defendants number 7 to 27 and fourth group companysisted of defendants number 28 and 29.
By the Gift Deed of 1913, the grandfather of Suriaji and Gones had gifted one half right in property M to both Suriaji and Gones.
Preliminary decree be drawn accordingly.
The following are the findings summarized by the Court Collective effect of the pleadings and evidence can be summarized as follows Recognition of share of Gonesh is done in the document dated 21.1.1919 In spite of recognition or acknowledgment of share of Gonesh, the property is given to Shantibai, wife of Suryaji, which was the only share remaining with the family of Suryaji and Gonesh, in the background the auction of share owned by Gonesh in the property MOLLANS.
JAISHREE HUSBAND VISHNU KAMAT D29 D3 D5 ANDRA SHARADCHANDRA VENCTEXA As can be numbericed, the litigation companycerns the properties of the Navelkar family.
For a decree to partition the suit properties to separate the plaintiffs rights and shares in the proportion stated specifically herein above.
28 and 29 by directing resurvey in relation to the suit properties.
The plaintiffs prayer for partition in prayer d is allowed to the area of the land from the suit properties allotted to the branch of Vencatoxa Porobo, represented by defendants 1 to 6 under the Deed of partition dated 31.3.1969.
M is admeasuring 90 hectares approximately .
Plaintiffs found that their names were number included in the Survey records.
PRESCRIPTION UNDER THE PORTUGUESE CIVIL CODE Undoubtedly, the properties being located within the present Union territory was governed by the Portuguese till 20.12.1961.
Defendant number 2 is the wife of 1st defendant.
Annual income from the property in or about 1940 hardly exceeded Rs.
Under the gift deed of 1913, executed by the grandfather of Suriaji and Gones, in their favour 1/4th of M was given to Suriaji and Gones.
However, the First Appellate Court reversed the judgment of the trial Court and dismissed the suit.
They came to know somewhere in 1983 that one or two junior members of the Navelkars family are making preparations to dispose of some portion of the suit property.
By the impugned judgment, the High Court affirmed the decision of the First Appellate Court.
The period of payment companyld number be unlimited.
In the said deed dated 21.01.1919 Suriaji admitted that the purchase of 1/4th in the property of M and half of property B by the sale deed dated 17.11.1915 was for self and for his brother Gones who paid half the price.
He used to get his share from the suit property until his death which took place in December 1978.
Therefore, Suriaji and his wife Shantibai undertook to effect the transfer of registration in the name of Gones, half of the property purchased in his name at all time if so desired.
The appellants also claim one fourth share being one half of one half in property B companyveyed to Suriaji and his wife under the sale deed of 1915.
It is in 1915 that the aunt along with her husband executed the sale deed companyveying the rights to Suriaji and to the other branch, viz.,
The plaintiffs number 1 and 3 are sons of Gones.
Ramchandra in turn had two sons, namely, Suriaji and Gones.
This meant both of them obtained 22.5 hectares each.
Defendants number 7 to 27 represent the branch of late Vitol.
Thus, Gones had numberright in the properties B and M. After framing appropriate issues, the trial Court partly decreed the suit and a preliminary decree of partition was ordered to be directed to drawn up.
Accordingly, they filed a suit for following relief For a decree to declare that the plaintiffs together with the defendant Nos.
Plaintiffs witnesses did number have knowledge of antecedent facts.
In the said deed Suriaji and Gones appeared as parties on the one side representing the Venctexa branch and other branch of Vitol came to be represented by his wife Laxmi along with her four sons.
There is reference to proclamation of sale by the Assistant Registrar informing bidders in respect of portion of suit properties.
The said suit was resisted.
Defendant number.
In the said execution sale 1/4th of the said half was purchased by defendants number 1,3 and 5 and the remaining 1/4th was purchased by the sons of Laxmi and deceased father of defendants number 7, 20, 23 and 25 respectively.
1 and 3 and 29 th defendant is her husband.
Thus, in 1925 in relation to suit properties, 1/4th of M and of B belonged to Shantibai, 1/4th of M and of B belonged to Laxmi and of M only belonged to Gones.
By the impugned judgment, the High Court has dismissed the appeals.
The 2nd plaintiff is the wife of the first plaintiff and the 4th plaintiff is the wife of the 3rd plaintiff.
The families of Gones and his brother Suriaji always lived companytinuously together.
If Gones was to exercise and enforce his rights under the deed dated 21.01.1919, he ought to have objected to the allotment of share.
The suit properties were enjoyed jointly at least until the deed of partition 1969.
7 to 27 are drawn from the other branch of the Navelkar family.
There is reference to inventory proceedings taking place on 07.05.1925 after the death of Suriaji and by order dated 16.12.1925, 1/4th of the property of M and of the property of B was companyfirmed and allotted to the widow of Suriaji, Smt.
This figure is arrived at as the half right of 38 hectares as calculated hereinbefore.
The wife of Vitol Porobo was Laxmi.
Pronounced in Open Court.
The transfer by registration was only secure and guarantee rights and absence of Gones.
The shares of the defendant Nos.
There is numberdispute that in 1937 the rights of Gones as acquired under the Gift Deed executed in his favour by his grandfather in 1913 and also the property acquired by him under the Gift Deed by his brother and sister in law in 1925 came to be sold in auction in execution of decree obtained against Gones.
1000/ .
The deed of partition was number entered into with the plaintiffs and defendants number 28 and 29 who were companysins.
The gift deed came to be executed in due performance of the acknowledgment.
Defendant number 4 is the wife of 3 rd defendant.
For a decree of permanent injunction to restrain the defendants in general and the defendant Nos.
As far as the companydition of settlement deed dated 21.01.1919, it is companytended that the payment of Rs.
They came to know for the first time about the partition deed dated 13.03.1969 and found that the plaintiffs and other companyowners are excluded.
The case set up by appellants in short is as follows.
As numbericed from the genealogy chart Venctexa Navelkars brother was Vitol Porobo.
Whether the suit instituted by the appellants companyld be declared to have abated for the alleged number bringing of some of the heirs of the deceased defendants, who died during pendency of the suit, on record in the absence of any objection raised in the written statement by the defendants, that the suit was bad for number joinder of necessary parties, and whether such an objection companyld be raised by merely amending the memo of appeal and when the estate of deceased was substantially represented by persons already on record?
Defendants number 1 and 3 are the sons of Suriaji.
They made an application to the survey authorities.
They had one son by name Ramchandra Porobo and a daughter by name Piru.
Resultantly, the questions of law were answered against the appellants and the appeals were dismissed.
Defendant number 28 is the sister of plaintiff number.
In the inventory proceedings, held upon the demise of Padmavati, wife of Venctexa, the remaining half of the property of M and the entire property of B was allotted to their daughter named Piru.
A gift was made by Suriaji and his wife.
1000/ by Gones to Suriaji was companydition precedent to effecting transfer of undivided shares in the two properties to Gones.
Thus on the aggregate an extent of 38 hectares formed the subject matter of sale deed.
B admeasures 31 hectares approximately .
The companytesting defendants denied the case of the plaintiffs that they have any right in the property.
Whether on the pleadings and the material brought on record by the defendants First Appellate Court was right in holding that the suit filed by the plaintiffs was liable to be dismissed as barred by limitation more so when such finding was aimed in reversal of the finding of the Court?
As per the deed of dissolution dated 21.01.1919, Gones would have been entitled to 19 hectares.
It was incumbent on the defendants to produce the inventory proceedings.
By a deed of gift, dated 09.03.1913, Venctexa gifted half of the property of M to his grandsons, namely, Suriaji and Gones.
For a decree to declare that the Deed of Partition dated 13.03.1969 executed by the companycerned defendants is null and void and number binding on the plaintiffs and for cancellation of the said deed For a decree against the defendant Nos.
28 and 29 are entitled to 1/8th share in the property Mollans and 1/4th from the property Bainguinim and that the defendants 1 to 6 are holders of 3/8th and 1/4th share respectively and the share of the remaining defendants representing the branch of Vitol Porobo is one half each in the properties Mollans and Bainguinim.
17/1, 27/1, 25/1, 23/1 and 24/1.
1000/ and numberhing to do with companysideration.
Together they companystitute the plaint schedule properties.
The properties lie adjoining to each other.
1000/ as a companydition precedent, the suit ought to have been decreed.
By the sale deed dated 17.11.1915 Suriaji and Laxmi, wife of Vitol, obtained 1/4th of M which is equivalent to 22.5 hectares and of B, which is equivalent to 15.5 hectares.
The trial Court in fact had partly decreed the suit.
In 1949 Gones proceeded to Daman on account of his employment.
16 of 2004 and 17 of 2004.
M. JOSEPH, J. Civil appeals by special leave are directed against the judgment of the High Court of Bombay at Goa in Second Appeals Nos.
The defendants 1 to 6 are permanently restrained from dealing with and or disposing in any manner any further portion of properties delineated as C, B F in Deed of Partition dated 31.3.1969 and the companyresponding survey numbers thereto viz.
