Case Note & Summary
The petitioners, Amelino Clifton De Rosario Azavedo and his wife Pamita Azavedo, challenged the order dated 16.03.2018 of the Adhoc District Judge-I, Fast Track Court, Mapusa, which dismissed their appeal against an order dated 19.10.2011 of the Civil Judge Senior Division at Mapusa in inventory proceedings No.316/99/A. The petitioners contended that petitioner No.2, being a moiety holder, was neither impleaded nor given notice of the auction proceedings, and that such notice was mandatory as she had right, title, and interest in the properties. The respondents argued that the husband of petitioner No.2 participated in the proceedings and that the issue was covered by the decision in Ranjit Satardekar v. Clotildes Fernandes. The court accepted the respondents' submissions, holding that non-service of notice to a moiety holder does not vitiate inventory proceedings or the auction, as per the ratio in Ranjit Satardekar. The court distinguished the decisions cited by the petitioners, noting that in those cases there was failure to notify persons entitled to participate, whereas here the husband participated. The petition was dismissed.
Headnote
A) Civil Procedure - Inventory Proceedings - Notice to Moiety Holder - Non-service of notice to a moiety holder of an heir does not vitiate inventory proceedings or auction held therein - The expression 'heirs and moiety holder spouse' does not include moiety holder of the heir - The husband of the moiety holder participated in the proceedings, hence no prejudice caused (Paras 5-6).
Issue of Consideration
Whether non-service of notice to a moiety holder of an heir vitiates inventory proceedings or auction held therein
Final Decision
Petition dismissed; order dated 16.03.2018 of Adhoc District Judge-I, Fast Track Court, Mapusa upheld
Law Points
- Moiety holder of heir not entitled to separate notice in inventory proceedings
- Non-service of notice to moiety holder does not vitiate auction
- Distinction between heir and moiety holder
Case Details
2021 LawText (BOM) (06) 47
Writ Petition No. 638 of 2019
Mr. V. R. Tamba with Mr. Vibhav Rajiv Amonkar for Petitioners, Mr. Valmiki Menezes for Respondents
Amelino Clifton De Rosario Azavedo and Pamita Azavedo
Newton Azavedo, Senirita Azavedo, Janice Azavedo, Clifford Santimano D'Souza
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Nature of Litigation
Writ petition challenging dismissal of appeal against order in inventory proceedings
Remedy Sought
Petitioners sought to set aside the order dismissing their appeal and to declare the auction proceedings void for lack of notice to petitioner No.2
Filing Reason
Petitioner No.2, a moiety holder, was not impleaded or given notice of auction proceedings in inventory
Previous Decisions
Civil Judge Senior Division at Mapusa made order dated 19.10.2011 in inventory proceedings No.316/99/A; Adhoc District Judge-I, Fast Track Court, Mapusa dismissed appeal on 16.03.2018
Issues
Whether non-service of notice to a moiety holder of an heir vitiates inventory proceedings or auction held therein
Submissions/Arguments
Petitioners: Petitioner No.2, as moiety holder, had right, title and interest and was entitled to notice; failure to implead or notify vitiates proceedings
Respondents: Husband of petitioner No.2 participated; moiety holder has no independent right; issue covered by Ranjit Satardekar
Ratio Decidendi
Non-service of notice to a moiety holder of an heir does not vitiate inventory proceedings or auction held therein, as the moiety holder is not an heir and participation by the spouse suffices.
Judgment Excerpts
In Ranjit Satardekar (supra), the learned Single Judge has held non-service of notice to the moiety holder of the heir, does not vitiate the inventory proceedings or in any case, the auction held in the inventory proceedings.
By no stretch of imagination it can be said that the expression moiety refers to the moiety holder of the heir.
Procedural History
Inventory proceedings No.316/99/A were initiated; Civil Judge Senior Division at Mapusa passed order on 19.10.2011; petitioners appealed to Adhoc District Judge-I, Fast Track Court, Mapusa, which dismissed appeal on 16.03.2018; petitioners filed writ petition in High Court of Bombay at Goa on 15.06.2021.
Acts & Sections
- Code of Civil Procedure, 1908:
