Case Note & Summary
The case involves a dispute over the estate of late Calverto Saldanha. The appellants, Mr. Rosario Xavier Arquibaldo Fernandes and Mrs. Anacleta Fernandes, were the original defendants, while the respondents, Mrs. Regina Saldhana and others, were the original plaintiffs. The respondents filed Special Civil Suit No.79/2001 seeking a declaration that a Will dated 09/02/1994 executed by the testator was null and void to the extent it bequeathed the entire suit property to the appellants, as it prejudiced their legitimate share as heirs under the Portuguese Civil Code, 1867. The trial court dismissed the suit, refusing to grant the declaration under Section 34 of the Specific Relief Act, 1963, on the ground that the relief was discretionary. The respondents appealed to the Lower Appellate Court, which allowed the appeal and partly decreed the suit, declaring the Will null and void to the extent it covered the entire property and reducing it to the disposable quota of the testator. The court also declared the respondents as co-owners of the suit property and restrained the appellants from transferring or obstructing possession. The appellants then filed the present second appeal before the Bombay High Court at Goa. The High Court heard arguments from both sides. The appellants' counsel argued that the Lower Appellate Court erred in interfering with the trial court's discretion under Section 34. The court, however, upheld the appellate court's decision, finding that the trial court's refusal was not justified as the respondents had a clear legal right to their legitimate share. The High Court dismissed the appeal, affirming the judgment of the Lower Appellate Court.
Headnote
A) Succession - Will - Validity - Portuguese Civil Code, 1867 - Disposable Quota - The testator cannot bequeath the entire property to one heir if it exceeds the disposable quota and prejudices the legitimate share of other heirs. The court held that the Will dated 09/02/1994 is null and void to the extent it refers to the entire suit property and reduced it to the disposable quota of the testator. (Paras 2-3)
B) Specific Relief Act, 1963 - Section 34 - Declaration - Discretionary Relief - The grant of a declaration under Section 34 is discretionary. However, the Lower Appellate Court can interfere if the trial court's discretion was exercised arbitrarily or not in accordance with law. In this case, the appellate court found that the respondents were entitled to a declaration of co-ownership. (Para 3)
Issue of Consideration
Whether the Lower Appellate Court was justified in interfering with the trial court's discretion to refuse a declaration under Section 34 of the Specific Relief Act, 1963, and whether the Will dated 09/02/1994 was valid to the extent it bequeathed the entire suit property to the appellants, thereby prejudicing the legitimate share of the respondents.
Final Decision
The High Court dismissed the appeal, upholding the judgment of the Lower Appellate Court which declared the Will null and void to the extent it refers to the entire suit property, reduced it to the disposable quota of the testator, declared the respondents as co-owners, and restrained the appellants from transferring or obstructing possession.
Law Points
- Succession
- Will
- Portuguese Civil Code
- Disposable Quota
- Legitimate Share
- Co-ownership
- Declaration under Section 34 Specific Relief Act
- Discretionary Relief
Case Details
2012 LawText (BOM) (07) 138
Second Appeal No.146 of 2011
Shri S.G. Dessai, Senior Advocate with Shri V. Parsekar, Advocate for Appellants; Shri Nitin Sardessai, Advocate for Respondents
Mr. Rosario Xavier Arquibaldo Fernandes and Mrs. Anacleta Fernandes
Mrs. Regina Saldhana alias Regina Bareto e Saldhana, Miss Amy Saldhana, Mr. Francis De Souza @ Francis De Souza Saldhana, Mrs. Antoineette De Souza Saldana
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Nature of Litigation
Civil suit for declaration that a Will is null and void to the extent it bequeaths entire property, and for declaration of co-ownership.
Remedy Sought
Respondents sought declaration that Will dated 09/02/1994 is null and void to the extent it refers to entire suit property, and that they are co-owners of the suit property.
Filing Reason
The Will executed by late Calverto Saldanha bequeathed the entire suit property to the appellants, allegedly prejudicing the legitimate share of the respondents as heirs.
Previous Decisions
Trial court dismissed the suit; Lower Appellate Court allowed appeal and partly decreed the suit.
Issues
Whether the Lower Appellate Court was justified in interfering with the trial court's discretion under Section 34 of the Specific Relief Act, 1963.
Whether the Will dated 09/02/1994 is valid to the extent it bequeaths the entire suit property, or should be reduced to the disposable quota of the testator.
Submissions/Arguments
Appellants argued that the declaration under Section 34 is discretionary and the trial court's refusal should not have been interfered with.
Respondents argued that the Will prejudiced their legitimate share and they are entitled to a declaration of co-ownership.
Ratio Decidendi
A testator cannot bequeath the entire property to one heir if it exceeds the disposable quota and prejudices the legitimate share of other heirs. The grant of a declaration under Section 34 of the Specific Relief Act is discretionary, but the appellate court can interfere if the trial court's discretion was exercised arbitrarily.
Judgment Excerpts
The above appeal challenges the judgment passed by the Lower Appellate Court whereby the appeal preferred by the respondents challenging the judgment and decree dated 31/07/2003 passed in Special Civil Suit No.79/2001 came to be allowed and the suit filed by the respondents was partly allowed thereby declaring that the Will dated 9/02/1994 is null and void to the extent it refers to the entire suit property and that it will be reduced to the disposable quota of late Calverto Saldanha.
Shri S.G. Dessai, learned Senior Counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that the Lower Appellate Court has failed to consider that the declaration sought under Section 34 of the Specific Relief Act is a discretionary relief and, as such, once the learned trial Judge has exercised its discretion in refusing such declaration the question of any interference by the Lower Appellate Court would not arise.
Procedural History
The respondents filed Special Civil Suit No.79/2001 which was dismissed by the trial court on 31/07/2003. The respondents appealed to the Lower Appellate Court which allowed the appeal and partly decreed the suit. The appellants then filed the present Second Appeal No.146 of 2011 before the High Court of Bombay at Goa, which was dismissed on 16/07/2012.
Acts & Sections
- Specific Relief Act, 1963: Section 34
- Portuguese Civil Code, 1867:
