Case Note & Summary
The case involves an appeal against an order of the learned Civil Judge Senior Division, Mapusa, appointing respondent no.3 as Cabeca de Casal in Inventory Proceedings No. 180/2008 initiated upon the death of Mario Cornelio Francisco D'souza and Mr. Fausto Gerson D'souza. The appellant, Mrs. Maria Silvia Pinho de Souza, had initially been appointed as Cabeca de Casal by the learned Judge. However, respondent no.3 filed an application under Article 1374 of the Portuguese Civil Procedure Code, contending that the appellant was not competent to be appointed as Cabeca de Casal because she was merely a moiety sharer of the brother of the estate leavers. The learned Judge allowed the application and appointed respondent no.3 as Cabeca de Casal. The appellant challenged this order. The High Court, after perusing the records, found that the appellant was not a direct heir or spouse of the deceased estate leavers but only a moiety sharer of the brother. The court held that under Article 1374 of the Portuguese Civil Procedure Code, only certain categories of persons, such as the surviving spouse, heirs, or legatees, are competent to be appointed as Cabeca de Casal. Since the appellant did not fall within any of these categories, her appointment was rightly set aside. The court dismissed the appeal, upholding the order of the trial court.
Headnote
A) Succession Law - Appointment of Cabeca de Casal - Article 1374 of the Portuguese Civil Procedure Code - Competence of a moiety sharer - The appellant, being a moiety sharer of the brother of the estate leavers, is not a direct heir or spouse and thus not competent to be appointed as Cabeca de Casal. The court held that the appointment of respondent no.3, who is a direct heir, was proper. (Paras 2-4)
Issue of Consideration
Whether the appellant, being a moiety sharer of the brother of the estate leavers, is competent to be appointed as Cabeca de Casal in inventory proceedings under Article 1374 of the Portuguese Civil Procedure Code.
Final Decision
The appeal is dismissed. The order of the learned Civil Judge Senior Division, Mapusa, appointing respondent no.3 as Cabeca de Casal is upheld.
Law Points
- Interpretation of Article 1374 of the Portuguese Civil Procedure Code
- Appointment of Cabeca de Casal
- Competence of a moiety sharer
- Succession rights under Portuguese Civil Code
Case Details
2011 LawText (BOM) (11) 86
Appeal from Order No. 30 of 2010
Mr. Tarzan D'Costa for appellant; Mr. J. E. Coelho Pereira, Senior Advocate with Mr. S. Karpe for respondent no.3
Mrs. Maria Silvia Pinho de Souza
Shri Mario Cornelio Francisco De Souza, Shri Fausto Gerson De Souza, Mrs. Maria Ivone Souza Rodrigues
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Nature of Litigation
Appeal against order appointing Cabeca de Casal in inventory proceedings
Remedy Sought
Appellant sought to set aside the order appointing respondent no.3 as Cabeca de Casal and restore her own appointment
Filing Reason
Appellant challenged the order of the learned Civil Judge Senior Division, Mapusa, which appointed respondent no.3 as Cabeca de Casal instead of the appellant
Previous Decisions
The learned Civil Judge Senior Division, Mapusa, initially appointed the appellant as Cabeca de Casal, but later on application by respondent no.3 under Article 1374 of the Portuguese Civil Procedure Code, appointed respondent no.3 as Cabeca de Casal
Issues
Whether the appellant, being a moiety sharer of the brother of the estate leavers, is competent to be appointed as Cabeca de Casal under Article 1374 of the Portuguese Civil Procedure Code
Submissions/Arguments
Appellant argued that she was entitled to be appointed as Cabeca de Casal
Respondent no.3 contended that the appellant was not a direct heir or spouse and thus not competent to be appointed as Cabeca de Casal
Ratio Decidendi
Under Article 1374 of the Portuguese Civil Procedure Code, only certain categories of persons, such as the surviving spouse, heirs, or legatees, are competent to be appointed as Cabeca de Casal. The appellant, being a moiety sharer of the brother of the estate leavers, does not fall within any of these categories and is therefore not competent to be appointed as Cabeca de Casal.
Judgment Excerpts
On perusal of the records, it reveals that the appellant had initiated inventory proceedings upon the death of the estate leavers and the appellant was appointed as Cabeca de Casal by the learned Judge.
Immediately thereafter, the respondent no.3 under the provisions of Article 1374 of the Portuguese Civil Procedure Code filed an application to the effect that the appellant was not a competent to be appointed as Cabeca de Casal as she is merely a moiety sharer of the brother of the estate leavers and as such the question of she becoming the Cabeca de Casal would not arise at all.
Procedural History
The appellant initiated inventory proceedings upon the death of the estate leavers and was initially appointed as Cabeca de Casal by the learned Civil Judge Senior Division, Mapusa. Respondent no.3 then filed an application under Article 1374 of the Portuguese Civil Procedure Code challenging the appellant's competence. The learned Judge allowed the application and appointed respondent no.3 as Cabeca de Casal. The appellant appealed against this order to the High Court of Bombay at Goa.
Acts & Sections
- Portuguese Civil Procedure Code: Article 1374
