Case Note & Summary
The case involves a dispute between a brother and sister over the estate of their mother, who died in 1979. The sister, Monica Sinai Rataboli, initiated inventory proceedings in 2015 before the Senior Civil Judge of Bardez at Mapusa, seeking to partition the properties left by their mother. The brother, Ramachandra Anant Sinai Rataboli, opposed the proceedings on the ground that they were barred by prescription under the Portuguese Civil Code, 1867, which applies in Goa. He argued that under Article 2017 read with Articles 505 and 535, the right to claim inheritance is extinguished after 30 years (negative prescription) or 20 years (positive prescription). The trial court dismissed his application, holding that the proceedings were maintainable. Aggrieved, the brother appealed to the High Court. The High Court examined the provisions of the Portuguese Civil Code and the concept of prescription. It noted that prescription under the Portuguese Civil Code extinguishes the right itself, unlike limitation under Indian law which only bars the remedy. However, the court held that the right to seek inventory is not a claim for ownership against another co-owner but a right to partition the estate. As a co-heir, the sister had an undivided share in the property, and the right to partition is imprescriptible. The court distinguished between positive prescription (acquisition of ownership by possession for 20 years) and negative prescription (extinguishment of rights by non-use for 30 years), but held that neither applies to inventory proceedings. The court relied on the principle that a co-owner cannot prescribe against another co-owner, as possession of one co-owner is possession on behalf of all. The court also referred to the case of Sachindra Nath Roy v. Maharaj Bahadur Singh and other cases, but distinguished them on facts. The High Court dismissed the appeal, upholding the trial court's order and directing the inventory proceedings to continue.
Headnote
A) Civil Procedure - Inventory Proceedings - Prescription - Portuguese Civil Code, 1867, Articles 505, 535, 2017 - The right of a co-heir to seek inventory of the estate of the deceased is imprescriptible and not subject to the law of prescription, as it is a right to partition and not a claim for ownership against another co-owner. The court held that the period of prescription does not apply to inventory proceedings, which are a means to enforce the right to partition among co-heirs. (Paras 1-10) B) Property Law - Co-ownership - Prescription - Portuguese Civil Code, 1867, Articles 505, 535 - Prescription under the Portuguese Civil Code applies only to claims for ownership or extinguishment of obligations, not to the right of a co-owner to seek partition. The court distinguished between positive prescription (20 years) and negative prescription (30 years), but held that neither applies to inventory proceedings as they are not a claim for ownership but a mode of partition. (Paras 5-8) C) Limitation Act - Prescription vs Limitation - Portuguese Civil Code, 1867 - The court clarified that the law of prescription under the Portuguese Civil Code is distinct from the Indian Limitation Act, 1963, and that prescription extinguishes the right itself, not merely the remedy. However, the right to seek inventory is a continuing right of a co-owner and is not extinguished by prescription. (Paras 5-6)
Issue of Consideration
Whether the right to initiate inventory proceedings under the Portuguese Civil Code, 1867, is barred by prescription after 30 years from the date of death of the deceased, when the co-heir has been in possession of the properties.
Final Decision
Appeal dismissed. The order of the trial court dated 22 December 2017 is upheld. The inventory proceedings shall continue.
Law Points
- Prescription
- Inventory proceedings
- Portuguese Civil Code
- Co-ownership
- Imprescriptible right
- Partition
- Limitation vs Prescription
