Case Note & Summary
The appeal arises from an order dated 16th August 2008 passed by the IIIrd Additional Civil Judge, Senior Division, Margao, in Inventory Proceedings No.178/2003-ADDL.III. The inventory proceedings were initiated in 2003 to partition the estate of the deceased Brian Hilary Gracias, who died without descendants. The Appellant is the widow of the deceased and is entitled to half share as a moiety sharer, while the Respondent, being the ascendant, is entitled to the remaining half. The proceedings had been disposed on 29th January 1998, but additional inventory proceedings were filed in March 2003 for assets not yet partitioned. In these proceedings, the Respondent filed an application dated 17.02.2007 providing the correct description of item no.2. The Appellant filed a reply on 15.3.2007 disputing the contentions. On 16.8.2008, the Trial Court allowed the application and directed the Appellant to deposit half of the amount of item no.2. The Appellant filed a review application on 17.11.2008, which was dismissed on 6.3.2009. The present appeal challenges the order dated 16.8.2008. The Appellant had also filed an application under Article 1383 of the Portuguese Civil Procedure Code claiming exclusive ownership of item no.2, which was not decided by the Trial Court before passing the impugned order. The Appellant argued that the Trial Court had no jurisdiction to direct deposit without first deciding the ownership claim. The Respondent contended that the Appellant had already received the amount and was liable to deposit half. The High Court held that the Trial Court acted without jurisdiction by directing the deposit without adjudicating the pending application under Article 1383. The impugned order was set aside, and the Trial Court was directed to decide the application under Article 1383 first, and then pass appropriate orders regarding the deposit.
Headnote
A) Civil Procedure - Inventory Proceedings - Jurisdiction - Article 1383 of Portuguese Civil Procedure Code - The Trial Court directed the Appellant to deposit half of the amount of item no.2 without adjudicating the Appellant's pending application under Article 1383 claiming exclusive ownership. Held that the Trial Court acted without jurisdiction as the ownership claim must be decided before any direction to deposit can be made (Paras 2-4).
Issue of Consideration
Whether the Trial Court had jurisdiction to direct the Appellant to deposit half of the amount received with regard to item no.2 without first deciding the Appellant's application under Article 1383 of the Portuguese Civil Procedure Code claiming exclusive ownership of the said item.
Final Decision
Appeal allowed. Impugned order dated 16.08.2008 set aside. Trial Court directed to decide the application under Article 1383 of Portuguese Civil Procedure Code first, and then pass appropriate orders regarding deposit of half of the amount of item no.2.
Law Points
- Jurisdiction of inventory court
- Ownership claim under Article 1383 of Portuguese Civil Procedure Code
- Deposit direction before adjudication of rights
