Case Note & Summary
The case involves a second appeal filed by Smt. Verodiana John Pinto and Mr. John Pinto (appellants) against the judgment and decree of the first appellate court which confirmed the trial court's decree for specific performance of a sale deed in favor of the respondent, Mrs. Ninette Maria Fernandes. The dispute pertains to a sale deed executed by appellant No.1 (Smt. Verodiana) in favor of the respondent, without the consent of appellant No.2 (Mr. John Pinto), who was only a witness to the deed. The appellants contended that under Article 1119 of the Family Laws (Portuguese Civil Code), the consent of both spouses is mandatory for alienation of immovable property, and since appellant No.2 did not consent, the sale was voidable. The trial court and first appellate court had decreed the suit for specific performance, holding that the sale was valid. The High Court of Bombay at Goa admitted the second appeal on 05/10/2011 on substantial questions of law. The appellants argued that there were no pleadings that appellant No.2 agreed to sell the property, and the valuation of the property was in excess of the plaint claim, which was not considered. The respondent supported the concurrent findings. The court analyzed the provisions of Article 1119 of the Family Laws and held that the consent of both spouses is essential for the sale of immovable property. Since appellant No.2 was only a witness and not a consenting party, the sale deed was not binding on him. The court allowed the appeal, set aside the judgments of the courts below, and dismissed the suit for specific performance. The court also directed that the appellants shall not be entitled to any costs.
Headnote
A) Family Law - Portuguese Civil Code - Article 1119 - Consent of Spouse - Sale of immovable property by one spouse without consent of the other is voidable - The court held that under Article 1119 of the Family Laws, the consent of both spouses is necessary for alienation of immovable property. Since appellant No.2 was only a witness and not a consenting party, the sale deed was not binding on him. The trial court and first appellate court erred in decreeing the suit for specific performance without considering this aspect. (Paras 2-5) B) Civil Procedure - Second Appeal - Substantial Question of Law - Maintainability - The court formulated substantial questions of law regarding the validity of the sale deed in the absence of consent of the co-owner. The appeal was admitted on 05/10/2011 on these questions. (Para 1) C) Evidence - Valuation Report - Additional Evidence under Order XLI Rule 27 CPC - The appellants sought to adduce a valuation report to show that the property value exceeded the plaint claim. The court noted that this aspect was not considered by the trial court but did not decide on its admissibility as the appeal was allowed on other grounds. (Para 2)
Issue of Consideration
Whether the sale deed executed by appellant No.1 without the consent of appellant No.2 (her husband) is valid under Article 1119 of the Family Laws (Portuguese Civil Code) and whether the courts below erred in decreeing the suit for specific performance.
Final Decision
The High Court allowed the second appeal, set aside the judgments and decrees of the trial court and first appellate court, and dismissed the suit for specific performance. No order as to costs.
Law Points
- Consent of both spouses required for sale of immovable property under Portuguese Civil Code
- Article 1119
- Sale without consent is voidable
- Second appeal maintainable on substantial question of law
