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The Hon'ble High Court of Bombay at Goa in the final order and judgment of Civil Application Review No.11 of 2014 titled Vijaya Gajanan Naik V/s Suresh Basu Naik and Othrs declared that an Article 1565 of the portuguese civil Code which belongs to the chapter of Portuguese civil code titled the Contract of Sale,is in actuality provision of succession law.
The Petitioner in the Special Leave Petition has disputed the decision of the Hon'ble High court of bombay at Goa.The Petitioner has claimed that article 1565 of the portuguese civil code in no way deals with succession as it clearly speaks about contract between parents and childrens(only contract between majors childrens is valid as per the Indian Contract Act),and that whole chapter of contracts in portuguese civil code is repealed by the Indian Contracts Act.
Even if it is assumed that the Decision of the High Court is correct,it will be surprising to know that the said Article 1565 of the portuguese civil code or the provision of succession law as declared by the high court does not exists in any legal publication in the state of Goa even after 58 years of liberation from the portuguese regime.
The Complete Petition is drafted by me(Vishal Gajanan Naik) https://www.facebook.com/vishalthegreat
The Hon'ble High Court of Bombay at Goa in the final order and judgment of Civil Application Review No.11 of 2014 titled Vijaya Gajanan Naik V/s Suresh Basu Naik and Othrs declared that an Article 1565 of the portuguese civil Code which belongs to the chapter of Portuguese civil code titled the Contract of Sale,is in actuality provision of succession law.
The Petitioner in the Special Leave Petition has disputed the decision of the Hon'ble High court of bombay at Goa.The Petitioner has claimed that article 1565 of the portuguese civil code in no way deals with succession as it clearly speaks about contract between parents and childrens(only contract between majors childrens is valid as per the Indian Contract Act),and that whole chapter of contracts in portuguese civil code is repealed by the Indian Contracts Act.
Even if it is assumed that the Decision of the High Court is correct,it will be surprising to know that the said Article 1565 of the portuguese civil code or the provision of succession law as declared by the high court does not exists in any legal publication in the state of Goa even after 58 years of liberation from the portuguese regime.
The Complete Petition is drafted by me(Vishal Gajanan Naik) https://www.facebook.com/vishalthegreat
The Hon'ble High Court of Bombay at Goa in the final order and judgment of Civil Application Review No.11 of 2014 titled Vijaya Gajanan Naik V/s Suresh Basu Naik and Othrs declared that an Article 1565 of the portuguese civil Code which belongs to the chapter of Portuguese civil code titled the Contract of Sale,is in actuality provision of succession law.
The Petitioner in the Special Leave Petition has disputed the decision of the Hon'ble High court of bombay at Goa.The Petitioner has claimed that article 1565 of the portuguese civil code in no way deals with succession as it clearly speaks about contract between parents and childrens(only contract between majors childrens is valid as per the Indian Contract Act),and that whole chapter of contracts in portuguese civil code is repealed by the Indian Contracts Act.
Even if it is assumed that the Decision of the High Court is correct,it will be surprising to know that the said Article 1565 of the portuguese civil code or the provision of succession law as declared by the high court does not exists in any legal publication in the state of Goa even after 58 years of liberation from the portuguese regime.
The Complete Petition is drafted by me(Vishal Gajanan Naik) https://www.facebook.com/vishalthegreat
CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION [Under Article 136 of the Constitution of India] S.L.P. (Civil) No of 2014 (Arising out of the impugned final Order and judgment dated 20 th March 2014 passed by the Honble High Court of Bombay at Goa, in Civil Application Review No.11 of 2014 which was filed for review of the final judgment/order of Second Appeal in Second Appeal No.24 of 2012 passed by the High Court) IN THE MATTER OF :- Smt.Vijaya Gajanan Naik Petitioner Versus Shri. Suresh Basu Naik & Ors. Respondents With I. A. No.________ of 2014 Application to permit the Power of Attorney Holder to appear in person before the Honble Supreme court. PAPER BOOK [FOR INDEX PLEASE SEE INSIDE] PETITIONER IN PERSON:Smt.Vijaya Gajanan Naik INDEX SL.NO. PARTICULARS PAGE NO. 1. Office Report on Limitation A 2. Listing Proforma A1-A2 3. Synopsis and List of Dates B - R 4. Certified Copy of the Impugned 1 - 3 Order dated 20 th March 2014 passed by Honble Single judge of the High Court in Civil Application (review) No. 11/2014. 5. Special Leave Petition with 4-63 Affidavit 6. Annexure P/1 : 64-85 A copy of the Memo/pleadings of the Review Application filed before the High Court in Civil Application (review) No. 11 Of 2014 filed on 27/8/2013. 7. Annexure P/2 : 86-87 A copy of the Order dated 28 th February 2014 passed by Honble Single judge of the High Court in Miscellaneous Civil Application No. 813 of 2013 (application for condonation of delay). 8. Annexure P/3 : 88-98 A copy of the Memo/pleadings (for condonation of Delay) filed before the High Court in Miscellaneous Civil Application No. 813 OF 2013, filed on 27/8/2013. 9. Annexure P/4: 99-111 A copy of the Order/final Judgment dated 21st June 2012 passed by Honble judge of the High Court in Second Appeal No.24 of 2012. 10. Annexure P/5: 112-135 A copy of the Order dated 9 th December 2011 passed by Honble judge of the High Court in Second Appeal no.3 of 2006 titled Shri Norberto Paulo Fernandes and Ors vs Shri.Gabriel Sebastiao Idalino and Ors. 11. Annexure P/6: 136-139 A copy of the judgment dated 02/06/1982 passed by the then Judicial Commissioner Dr.Couto J in Civil Revision Application No.208/80. 12. Annexure P/7: 140-150 A copy of the judgment and decree dated 10/03/2011 passed by learned district and sessions judge, south Goa, Margao in regular civil application no.389/2010. 13. Annexure P/8: 151-166 A copy of the Judgment dated 30/7/2002 in special civil suit no:42/99/B at the court of the addl.civil judge senior division,at vasco da gama 14. Application to permit the Power 167-169 of Attorney Holder to appear in person before the Honble Supreme court. 15. Annexure P/9: 170-173 A copy of the Power of Attorney. B SYNOPSIS AND LIST OF DATES 1. This special leave petition (SLP) raises vital questions related to the Laws in force in the State of Goa after coming into force of the The Goa,Daman and Diu (Laws) No.2 Regulation,1963. Though the issues regarding which Portuguese laws are still in force and which laws are repealed in the state of Goa is no longer res- integra in view of the judgement of the Honble Supreme Court of India in Syndicate Bank V/s Prabha D. Naik and anr, The failure of the State Government of Goa to authenticate and publish the laws still in force in the regional or Official Language has been affecting all the citizens of the state of Goa. It is a bitter truth that in the State of Goa no Citizen has access to an authenticated version of the Laws still in force in the State of Goa. The succession and family laws of the Portuguese Civil Code are still in force in the state of Goa. C 2. Still after the decision of this Honble Court in Syndicate Bank V/s Prabha D. Naik and anr wherein this court has held that either a chapter of the Portuguese civil code exists in its entirely or not and no single provision from any of the repealed chapters can be said to be still in force. In various cases which came up before various subordinate courts and also before the Honble High Court in the state of Goa and also in the impugned Judgment/Order of the present suit, the courts have held that some single provisions from the repealed chapter are still in force, these cases have not been challenged before this Honble supreme court as such there has been miscarriage of justice not just in the case of the petitioner but also to the public of the state of Goa.The Citizens of the state of Goa has to approach the advocates just to know the Portuguese Laws referred in their cases, and the advocates in turn mislead the ignorant citizens, ignorant in terms of not knowing whether the laws are repealed or still in force D because the Government of Goa has not published authenticated translations of the laws in force even after 58 years of liberation from Portuguese rule. 3. Also another case titled Second Appeal No.3 of 2006 titled Shri Norberto Paulo Fernandes and Ors vs Shri.Gabriel Sebastiao Idalino and Ors (Annexure-P/5) decided by the Honble High Court of Bombay at Goa which is taken as precedent by the Honble High Court of Bombay at Goa in deciding the impugned judgment was challenged before this Honble Supreme Court in SLP (Civil) Sc 18992/2012,but unfortunately the SLP came to be withdrawn by the appellants therein. BRIEF BACKGROUND 1. The petitioner and Respondent No.1,4 and 6 are children of Respondent No.3 and her husband Basu Dipu Naik(now deceased).Respondent No.3 and her husband on 24.12.1968 purchased a property E admeasuring 1318 Square meters known as Piturlem, Situated at Sancoale Village. Thus the property was Self acquired property of the Respondent No.3 and her husband. 2. On 21.12.1993 the Respondent No.3 and her husband executed deed of sale with the Petitioner, Respondent No.4 and Respondent No. 6 who are the daughters of the Respondent No.3 and her husband. Respondent No.1 who is the son of Respondent No.3 and her husband was excluded from the sale deed. The Petitioner, Respondent No.4 and Respondent No.6 were all major in Age at the time of sale. 3. On 13.10.1997 the husband of Respondent No.3 Expired(father of Petitioner and Respondent No.1,4,6) 4. The Respondent No.1 and his wife The Respondent No.2 filed a suit bearing Special Civil Suit No. 42/99/B. before the F Court of ADDL. Civil Judge Vasco for declaring the sale deed dated 21.12.1993 null and void claiming that the sale deed is against the Article 1565 of the Portuguese Civil Code. Though at this time the Respondent No.1 and His wife did not advance any arguments claiming that Article 1565 is a provision of Succession law.the Special Civil Suit was dismissed giving reasons that the suit property did not form part of the inheritance as right of inheritance to the estate leaver arises only on the death of the estate leaver in the property left by him on the date of his death and not in any other property and so on the day of sale deed Respondent No.1 cannot say that he got the share in the said property at that time(Annexure- P8). 5. The Respondent No.1 and his wife challenged the judgment of the Special Civil Suit by way of Regular Civil Appeal No.389/2010 filed before the Court of district And Sessions Judge, south G Goa,Margao.The District judge allowed the appeal giving reasons that Article 1565 of the Portuguese civil code is a provision of law regarding disposal of properties in Goa and that parents cannot violate article 1565 of Portuguese civil code while executing the said sale deed dated 21.12.1993 as such declared the sale deed null and void and ineffective by judgment and order dated 10.03.2011(Annexure-P7). 6. The Petitioner and Respondent No.3,4,5,6,7 and 8(all original appellants in Second Appeal No.24 of 2012) appealed against the Judgment and order dated 10.03.2011 before the Honble High Court of Bombay at Goa.The Advocate of the Petitioner contended before the Honble High Court that article 1565 of the Portuguese Civil Code is Repealed by Coming into force of Transfer of property Act, Even when there existed an Exactly same Judgment of the Honble High Court in Second Appeal No.3 of 2006 titled Shri Norberto Paulo Fernandes and Ors vs Shri.Gabriel H Sebastiao Idalino and Ors wherein Exactly the Same Contention of the Advocate therein was Rejected by the Same Judge of the Honble High Court(Annexure-P5). The contention was same word by word. The Petitioner had number of times approached the advocate and informed him that the Article 1565 of the Portuguese civil Code is a provision belonging to the Chapter of Portuguese Civil Code dealing with contracts and not successions and it is repealed by Indian Contracts Act and Not by any provision of Transfer of Property Act, but the Advocate did not bring this fact to the notice of the Honble High Court during the Case Proceedings of Second Appeal No.24 of 2012. 7. The Honble High Court dismissed the Second Appeal with simple reasoning that a provision of succession law cannot be repealed by transfer of property act, which was contended by the advocate of the petitioner (Annexure-P4). I 8. Since there was ignorance of the law while deciding the matter in the High Court the petitioner then approached another High Court advocate to file review of the Order/Judgment of the Second appeal No.24 of 2012. The Second advocate approached by the petitioner first delayed the matter till the limitation period to file the review was over and then took a stand that there is no weight in our matter, and asked the petitioner to get a judgment or decision wherein any court has explicitly held that article 1565 of Portuguese civil code is repealed. 9. After refusal of the advocate to file review the petitioner approached two more advocates to file the Review of the Order of Second Appeal No.24 of 2012 but all refused to take up the matter while trying to convince us that parents cannot sell property to childrens. J 10. After the advocates tried to deny the petitioner justice, the petitioner was able to file a review petition bearing Civil Application Review No.11 of 2014 on her own after a delay of 378 days, Drafted by her son Mr.Vishal Gajanan Naik, who will also be appearing on behalf of me in person before this honble Supreme Court in the present Special leave Petition.A Copy of the memo of the Civil Application Review No.11 of 2014 is annexed herewith and marked as Annexure-P1. 11. An Application for condonation of delay in filing the Review Application was also filed bearing Miscellaneous Civil Application No.813 of 2013 and by Order dated 28 th February 2014 the Single Judge of the Honble High Court condoned the delay of 378 days for the reasons stated in the Application for condonation of delay.it is pertinent to note that the Respondent No.1 and 2 did not appear before the High Court nor engaged any K advocate. A Copy of the Miscellaneous Civil Application No.813 of 2013 and its Order dated 28 th February 2014 are Annexed herewith and marked as Annexure-P3 and Annexure-P2 respectively. 12. The Review Application was rejected by the Honble High Court giving reasons that the article 1565 of the Portuguese civil code is a provision of Portuguese succession law in force in Goa and it is not repealed by the Transfer of Property Act, though in the review application the petitioner has contended that the article 1565 is a provision of Contracts Law of the Portuguese Civil Code and repealed on coming into force of Indian contracts Act. And that article 1565 does not provide any accrual of rights but only prohibits execution of a contract of sale between parents or grandparents and childrens or grandchildrens, if executed without consent of all the childrens or grandchildrens. A copy of the impugned Final order and Judgment of Civil L Application Review No.11 of 2014 is placed at Pages 1 to 3 of the Slp. 13. The Respondents were duly served in all the Three suits filed before the Honble High Court, that is in Second Appeal No.24 of 2012,Civil application Review No.11 of 2014 and Miscellaneous Civil Application No.813 of 2013(condonation of delay in filing review).The Respondent No.1 & 2 decided to remain absent from the proceedings because if they have appeared before the Honble High Court the respondent No.1 & 2 would be bound to file their reply and they would have to clarify whether the suit property is part of the legitime portion of the parents or not. 14. Aggrieved by the impugned Judgment/order of the Civil Application Review No.11 of 2014 the appellant has filed the present Special Leave Petition. M LIST OF DATES AND EVENTS Sr. No. Date Particulars of events 1. 21/12/1993 Respondent No.3 and her Husband executes Sale Deed with the Petitioner and Respondent No. 4 & 6,All major in age at the time of sale deed. 2. 13/10/1997 The Husband of Respondent No.3 (father of Petitioner, Respondent No.1, 4 & 6) demises. 3. 02/08/1999 The Respondent No.1 filed a suit bearing Special Civil Suit No.42/1999/B at the court of the addl.civil judge senior division,at vasco da gama for declaration that the sale deed dated 21.12.1993 to be declared as null and void. 4. 10/03/2011 The Learned Trial Court has been pleased to dismiss the Special Civil Suit No .42/1999/B.A copy of the Decision of Special Civil Suit No.42/1999/B.A is N annexed hereto and marked as Annexure P/8(Pages:151 to 166). 5. 01/06/2010 Respondent No.1 files appeal before the District Court which was made over to the District Judge II, South Goa, Margao and which was registered as the Regular Civil Appeal No.389/2010. 6. 10/03/2011 learned district and sessions judge, south goa, margao Decrees the suit in favour of Respondent No.1. Copy of Judgment and decree dated 10/03/2011 in Civil Appeal No.389/2010 is annexed hereto and marked as Annexure P/7(Pages:140 to 150). 7. 10/06/2011 Petitioner, Respondent No.3, 4,5,6,7 and 8 (All original appellants) files Second Appeal before the Honble High Court,registered as Second Appeal No.24 of 2012. 8. 09/12/2011 The Learned Single Judge of the Honble High Court decides Second Appeal No.3 O of 2006 titled Shri Norberto Paulo Fernandes and Ors vs Shri.Gabriel Sebastiao Idalino and Ors.A copy of the Judgment of Second Appeal No.3 of 2006 dated 9 th December 2011 is annexed hereto and marked as Annexure P/5(Pages:112 to 135). 9. 21/06/2012 The Learned Single Judge of the Honble High Court dismisses the Second appeal filed by the Appellant by order dated 21/06/2012. A copy of the Judgment of Second Appeal No.24 of 2012 dated 21 st June 2012 is annexed hereto and marked as Annexure P/4 (Pages:99 to 111). 10. 27/08/2013 The Petitioner files Miscellaneous Civil Application No.813 of 2013 for condonation of delay in filing the Civil Application (Review) No.11 of 2014. A copy of the Memo/pleadings of the Miscellaneous Civil Application 813 of 2013 P is annexed herewith and marked as Annexure P/3(Pages:88 to 98). 11. 27/08/2013 The Petitioner files Civil Application (Review) No.11 of 2014 for review of the Order of Second Appeal No.24 of 2012. A copy of the Memo/pleadings of the Civil Application Review No.11 of 2014 is annexed hereto and marked as Annexure P/1(Pages:64 to 85). 12. 28/02/2014 The Learned Single Judge of the High Court allows the Miscellaneous Civil Application No.813 of 2013 thus condoning the delay of 378 days in filing the Civil Application (Review) No.11 of 2014. A copy of the Order dated 28 th February 2014 in Miscellaneous Civil Application No.813 of 2013 is annexed hereto and marked as Annexure P/2(Pages:86 to 87). Q 13. 20/03/2014 The Learned Single judge of the Honble High Court rejects the Review Filed By the Appellant in Civil Application Review No.11 of 2014 by impugned order dated 20/03/2014. 14. 26/03/2014 The Petitioner applies for certified copies of the impugned Final Order and judgment of Civil Application Review No.11 of 2014.Dates of applying for the certified copy of the Order and Judgment can be seen on page 3 of the SLP. 15. 22/05/2014 Certified copies of the impugned Order dated 20/03/2014 of Civil Application Review No.11 of 2014 were ready. 16. 22/05/2014 Certified copies of the impugned Order of Civil Application Review No.11 of 2014 dated 20/03/2014 were delivered to the Petitioner. 02/08/2014 4 IN THE SUPREME COURT OF INDIA (Order XVI Rule 4(1) (a) CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (Under Article 136 of the Constitution of India) S.L.P. (Civil) No of 2014 (Arising out of the impugned final Order and judgment dated 20 th March 2014 passed by the Honble High Court of Bombay at Goa, in Civil Application Review No.11 of 2014 which was filed for review of the final order/Judgment of Second Appeal in Second Appeal No.24 of 2012 passed by the High Court) BETWEEN Position of parties In the Court from whose order the Petition arises In the In This High Court Court A) Smt.Vijaya Gajanan Naik, Major in age,Residing at House No.141,Akshibhat, Agassaim,Ilhas Goa Appellant Petitioner A N D 5 B) Shri. Suresh Basu Naik, son of late Basu Dipu Naik, major in age,married, businessman and his wife Contesting Respondent No.1 Respondent No.1 C) Smt.Mary Rosa Goes alias Maya Suresh Naik,Major in age, housewife, both residents of House No.128, pithole,Sancoale, Mormugao,Taluka Goa Contesting Respondent No.2 Respondent No.2 D) Smt. Premavati Basu Naik, major in age, widow of Basu Dipu naik,housewife, House No.138, Rua de Maria,Sancoale, Mormugao Taluka,Goa Proforma Respondent No.3 Respondent No.3 E) Smt.Tara Prakash Naik, Major in age,widow of Prakash Naik. House No.138, Rua de Maria, Sancoale, Mormugao Taluka,Goa Proforma Respondent No.4 Respondent No.4 F) Shri.Kalidas Prakash Naik, Major of age,student, 6 son of late Prakash Naik, Residents of House No.138, Rua de Maria,Sancoale, Mormugao Taluka,Goa. Proforma Respondent No.5 Respondent No.5 G) Smt.Rohini Ladu Naik, Major in age,married,housewife, And her husband Proforma Respondent No.6 Respondent No.6 H) Shri. Ladu Datta Naik, Major in age,service, both residing at House No. 36/B,Issorim,Velsao, Mormugao Taluka,Goa Proforma Respondent No.7 Respondent No.7 I) Shri. Gajanan Laxman Naik, Major in age,residing at House No.141,Akshibhat, Agassaim,Ilhas Goa. Proforma Respondent No.8 Respondent No.8 To The Hon'ble Chief Justice of India and His Companion Judges of the Supreme Court of India. 7 1. The Special Leave Petition of the Petitioner most respectfully showeth :- a. The petitioner above named respectfully submits this petition seeking special leave to appeal against the impugned Final order/Judgment of the single Judge of the Honble High Court of Bombay at Goa in Civil Application Review No.11 of 2014 dated 20 th March 2014 dismissing the Application for review of the final Order/Judgment of the High Court in second Appeal No.24 of 2012,dated 21 st June 2012(Annexure-P/4) by which the Honble High Court had dismissed the Second Appeal No. 24 of 2012. b. The impugned Order of Civil Application Review No.11 of 2014 was passed dated 20 th March 2014, the application for certified copies of the order dated 20 th march 2014 was made on 26 th March 2014,the date given for collecting the Certified Copy of the impugned judgment was extended to 22 nd May 2014 by the court office as the final 8 Judgment was not dictated by the Honble single judge of the High Court and the copies were ready only on 22 nd May 2014 and the Certified copies were finally delivered to the Petitioner on the same day i.e on 22 nd May 2014.Hence this Present Special leave Petition is within the 90 days of the Limitation period. Date of applying for certified copy of the impugned judgment and date on which the copy was ready appears at page 3 of this SLP. 2. QUESTION OF LAW: The following questions of the law arises for consideration by this Hon'ble Court: a. Whether the Learned single Judge of the Honble High Court committed error or gross illegality in that he ignored the fact that article 1565 is not provision of succession law in force in the state of Goa?. b. Whether the Learned single Judge of the Honble High Court committed error or 9 gross illegality in that he ignored the fact that article 1565 is the provision of the chapter of Portuguese civil code titled Contract of Sale which has been repealed after coming into force of Indian Contract Act and not by Transfer of Property Act?. c. Whether the Learned single Judge of the Honble High Court committed error or gross illegality in simply assuming and not deciding himself whether the suit property is legitime portion of the parents or not?. d. Whether the Learned single Judge of the Honble High Court committed error or gross illegality in that he did not at all consider the pleadings of the appellant in the Civil Review Application made before him?. e. Whether the Learned single Judge of the Honble High Court committed error or gross illegality in that the impugned 10 judgment is perverse and as such is not sustainable in law?; f. Whether the Learned single Judge of the Honble High Court committed error or gross illegality in that he ignored the law laid down by the court of record,i.e the Honble Supreme Court of India regarding repeal of laws of Portuguese civil code,in the case of Syndicate Bank V/s Prabha D. Naik and anr ?. g. Whether the parents i.e the Respondent No.3 and her Husband(now deceased) had no disposal right with respect to the self acquired suit property?. h. Whether the Respondent No.1 had ownership right in the self acquired suit property during the lifetime of his parents i.e at the time of the execution of the sale deed?. i. Whether the Respondent No.1 could have claimed his share of inheritance in the 11 self acquired suit property of his parents i.e Respondent No.3 and her Husband during their life time, the inheritance which he would have become entitled after the death of his parents if parents had not disposed the said self acquired suit property ?. j. Whether the single judge of the Honble High Court failed to see that suit property is not part of the legitime portion of the parents i.e of the Respondent No.3 and her husband?. k. Whether the single judge of the honble High Court failed to see that suit property was not part of any inheritance during the life time of the Parents?. l. Whether the single judge of the Honble High Court failed to see that the suit property was not disposed by way of testamentary disposition nor intestate as such succession law cannot be invoked?. 12 m. Whether the single judge of the Honble High failed to see that the suit property did not form the part of the legitime portion of the Respondent No.3 and her husband as per the Portuguese Succession law still in force in the State of Goa ?. n. Whether the single judge of the Honble High Court was wrong to presume without any evidence on record that the suit property of the impugned Judgment and Second Appeal No.24 of 2012(Annexure-P/4) as the part of the legitime portion of the parents ?. o. whether the single judge of the Honble High Court failed to see that the evidence and facts of the second appeal No.3 of 2006(Annexure-P/5) are not same as that of the suit property of impugned Judgment and Second Appeal no.24 of 2012(Annexure-P/4). p. whether the single judge of the Honble High Court was wrong to disregard the judgment of Honble Supreme court in 13 Syndicate Bank V/s Prabha D. Naik and anr. which is binding on the High Court,supreme court being the court of record ?. q. whether the single judge of the Honble High Court failed to see that the Indian contract Act is applicable in the State of Goa ?. r. Whether the single judge of the Honble High Court failed to see that the Indian Contract Act has repealed the chapter of Portuguese Civil Code dealing with Contracts in Goa,of which the article 1565 also part of ?. s. Whether the single judge of the Honble High Court was wrong in naming and simply calling the provision of law of contract of Portuguese civil code i.e Article 1565, the Provision of Succession law ?. t. Whether the single judge of the Honble High Court failed to see that Before the death of the ancestor, an expectant heir 14 or distributee has no vested interest but only a mere expectancy or possibility of inheritance. Such an individual cannot on the basis of his or her prospective right maintain an action during the life of the ancestor to cancel a transfer of property made by the ancestor ?. u. Whether article 1565 of the Portuguese law of contracts can be said/named to be provision of succession law and consequently inferred to be not repealed by Indian contracts act? 3. DECLARATION IN TERMS OF RULE 4(2) The petitioner states that no other petition seeking leave to appeal has been filed by him against the impugned judgment and order. 4. DECLARATION IN TERMS OF RULE 6 The annexures produced along with the SLP are true copies of the pleadings/documents which formed part of the records of the case in the Court below against whose order the leave to appeal is sought for in this petition. 15 5. G R O U N D S :- 1. Leave to appeal is sought on amongst the following grounds: 2. The impugned order is bad in law and as such, deserves to be quashed and set aside; 3. The learned Single Judge of the High Court erred in dismissing the Second Appeal No. 24 of 2012 and Civil Application Review No.11 of 2014; 4. The Honble High Court failed to consider the following grounds among others, as such the impugned order is invalid, incorrect, improper and as such, liable to be set aside. 5. In the review application filed by the Petitioner the Honble High court Wrongly held that the main ground of the review is to contend that the provisions of Article 1565 of the Portuguese Civil Code dealing with the succession are no longer in force 16 after Coming into force of the Transfer of Property Act. In reality the Petitioner had disputed the opinion of the High Court that the article 1565 is dealing with successions, furthermore the Petitioner has stated that the article 1565 is provision of the chapter of contracts in the Portuguese civil code and that it is repealed after coming into force of Indian contracts Act. 6. The Review Filed by the Petitioner in Civil Application (Review) No.11 of 2014 was erroneously rejected by the single judge of the Honble High Court without going into merits of the case. in Fact the Honble Single Judge erroneously misinterpreted the grounds contended by the Petitioner. In the impugned Order dated 20/03/2014 (Pages 1 to 3 ) the Honble Single Judge held as follows: I have heard the applicant in person and perused the records. The main ground of the review is to contend that the provisions of Article 1565 of the 17 Portuguese Civil Code dealing with the succession are no longer in force after coming into force of the Transfer of Property Act. This aspect has been duly examined while disposing of Second Appeal No. 24 of 2012 by judgment dated 21.06.2012. Those provisions are dealing with succession which has been examined while passing the judgment under review. 7. The Petitioner had contented in the said review application (Annexure P/1) that: a)The Article 1565 of the Portuguese civil code is a provision contained in the chapter named contract of sale,a chapter of Portuguese civil code dealing with contracts and not successions. b)That the article 1565 is not a provision of succession law as it does not protect any legitime portion or guarantee any share to any 18 descendents. Only reason given for naming/calling the article 1565 as the provision of succession law is that since it prohibits execution of contract of sale to some children without taking consent of the remaining,because of this restriction to sale it was opinioned by the Honble High Court that article 1565 protects legitime portion. The suit property in reality and as per the evidence on record is not part of legitime portion of the parents at all. c)That the article 1565 being a provision of chapter of contracts of sale in the Portuguese civil code and it is repealed after coming into force of the INDIAN CONTRACT ACT and not Transfer of Property Act 8. These contentions of the Petitioner were erroneously ignored by the learned single judge of the Honble High Court. 19 9. The learned single judge of the Honble High Court erroneously ignored that the Indian contract act extended to the state of Goa and its consequent repeal of the entire chapter of the Portuguese civil code dealing with the contracts, without any dissection and without exception of any provision. 10.The learned single judge of the Honble High Court erroneously ignored the fact that the suit property is not part of the legitime portion as such neither article 1565 nor succession law can be invoked. 11.And the learned single judge of the Honble High Court also erroneously ignored the judgment of the honble Supreme Court in Syndicate Bank Vs Prabha D.Naik & Oths wherein it is held that Either the code applies in its entirety or it does not-there is no half way about it.. The judgment of the Supreme Court, being the court of record is binding on 20 the Honble High Court and the Honble High Court cannot deviate from the law laid down by the Supreme Court in the said judgment. 12.The learned single judge of the Honble High Court erroneously ignored the fact that the article 1565 is the provision of the chapter of Portuguese civil code dealing with the contracts as such the whole chapter has been repealed on coming into force of the Indian Contracts act in the state of Goa. 13.The Honble High Court committed an error by ignoring the above facts brought before it in the Civil Application Review which if not corrected will cause gross miscarriage of justice and also undermines the authority of the Honble Supreme Court of India hence the present appeal is maintainable. 14.The review application before the Honble High Court was filed in accordance with 21 the law laid by the Honble Supreme court In Board of Control for Cricket in India & Anr. V/s. Netaji Cricket Club & Ors. (2005 (4) SCC 741), wherein the Apex Court has stated that Order 47, Rule 1, of CPC provides for filing an application for review and such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reasons. What would constitute sufficient reason would depend on the facts and circumstances of the case and the words sufficient reason in Order 47, Rule 1, of CPC are wide enough to include a misconception of fact or law by a court of even an advocate and that an application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit (emphasis supplied). The Apex Court took note of Lily Thomas & Ors. V/s.Union of India & 22 Ors reported in AIR 2000 SC 1650. and noted; 52. The dictionary meaning of the word 'review' is 'the act of looking, offer something again with a view to correction or improvement'. It cannot be denied that the review is the creation of a statute. The Honble High Court in Patel Narshi Thakershi V/s. Pradyumansinghji Arjunsinghji, held that the power of review is not an inherent power. It must be conferred by law wither specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice.If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption 23 which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error. 15.The power of review is set out in Order 47 Rule 1 of the Code of Civil Procedure which provides application for review of judgment which reads as under: Any person considering himself aggrieved -by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,by a decree or order from which no appeal is allowed, or [c] by a decision on a reference from a Court of Small Causes,and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the 24 face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgement to the Court which passed the decree or made the order. 16.Further the Hon'ble Supreme Court in the case of M.M.B. Catholicos v. M.P. Athanasius reported in AIR 1954 SC 526 particularly para 32 which reads as under: The Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds namely (i) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the Appellant's knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. 25 It has been held by the Judicial Committee that the words 'any other sufficient reason' must mean a reason sufficient on grounds, at least analogous to those specified in the rules. 17.Further the Petitioner had relied upon Halsbury's Law of India Vol. 7 para of CPC.65.775 on page 521 which provides thus: OBJECT: The remedy of review, which is a reconsideration of a judgement by the same Court and by the same judge has been borrowed from the Courts of equity. The concept was not known to the common law. The remedy has a remarkable resemblance to a writ of error. The basic philosophy, inherent in the recognition of the doctrine of review, is acceptance of human fallibility. If there is an error due to human failing, it cannot be permitted to perpetuate and to defeat justice. Such mistakes or 26 errors must be corrected so as to prevent miscarriages of justice. Justice is above all as it is a virtue which transcends all barriers. Neither the rules procedure nor technicalities of law can come in its way as the law has to bend before justice. Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove an error and not to disturb finality. 18.Hence the learned single judge was erred in rejecting the review application (Annexure P/1) of the Petitioner. 19.The Petitioner No.1 & Respondent No.4, & 6 are the daughters and respondent No. 1 is the son of Respondent No.3 and her Husband Late Basu Dipu Naik. 20.The Husband of Respondent No.1 Expired on 13/10/1997,the sale deed was executed before the death by both the parents as such succession law cannot be invoked for 27 the actions of the Respondent No.3 and her husband in selling the suit property to Petitioner and Respondent No.4 & 6. 21.The article 1565 of the Portuguese law of contract of sale is not repealed by the Transfer of property Act but repealed by Indian Contract Act. 22.In the judgment of the honble Supreme Court in Syndicate Bank Vs Prabha D.Naik & Oths it is held that Either the code applies in its entirety or it does not- there is no half way about it.. The judgment of the Supreme Court, being the court of record is binding on the Honble High Court and the Honble High Court cannot deviate from the law laid down by the Supreme Court in the said judgment 23.The article 1565 is the provision of the chapter of Portuguese civil code dealing with the contracts as such the whole chapter has been repealed on coming into 28 force of the Indian Contracts act in the state of Goa. 24.The article 1565 of the Portuguese law of contract of sale is a provision dealing with the law of contract of sale in the Portuguese civil code, and finds its place under the chapter titled contract of sale in subsection titled The persons who can buy, and who can sell. 25.No share in the present suit property was guaranteed to the respondents No.1 under any of the law existing at the time of sale not even under article 1784 which guarantees share in the legitime portion to the descendents. 26.Article 1565 does not make the children co-owner in the self acquired property of the parents. 27.The suit property is self acquired property of the parents and does not form part of the inheritance at the time of 29 sale by the parents as held by the COURT OF THE ADDL.CIVIL JUDGE SENIOR DIVISION,AT VASCO DA GAMA IN SPECIAL CIVIL SUIT NO:42/99/B (Annexure P/8).and as such cannot be held as part of the Legitime Portion of the parents under article 1784 of the succession law. 28.The learned ADDL.CIVIL JUDGE held at page 10 of the judgment(Annexure P/8)(Page 160 of this Slp) that: It is to be noted that right of inheritance to the estate lever arises only on the death of estate lever in the property left by him on the dated of his death and not in any other property and so on the day of sale deed plaintiff cannot say that he got the share in the said property at that time, other vise also he had given undertaking not to claim any right and so in such circumstances, I hold that plaintiff was not at all having any share at the time of sale deed in the suit property... 30 29.As such the respondents No.1 did not have any share in the suit property at the time of sale deed nor was the property a part of the legitime portion of the parents. 30.Further the legal maxim --Nemo est haeres viventis, which says that No one can have an heir while alive. As such the Respondent cannot invoke the Portuguese succession law to prevent disposal of self acquired property during the life time of the parents, just because the respondent will inherit the property if the parents die.(in reality the Respondent No.1 and 2 never have till today invoked the succession law but the Honble High Court have misinterpreted the provision of contract law of Portuguese civil code as a provision of succession law. 31.The article 1565 of the Portuguese law of contract of sale is a provision dealing with the law of contract of sale in the Portuguese civil code, and finds its place under the chapter titled contract of 31 sale in subsection titled The persons who can buy, and who can sell. 32.The Honble High Court erroneously held at para 5 of the Judgement of Second Appeal No.24 of 2012(Annexure P/4)(Page 103 of this Slp) that under article 1565 of the Portuguese Civil Code, there is an express bar whereby parents cannot sell the immovable property to the children. 33.The fact is that the article 1565 does not mention or specify the type of property, either movable or immovable, but only prohibits the execution of a contract, that is the contract of sale, between parents and the childrens without consent of all the children. 34.Article 1565 is also applicable to the sale of goods governed under sales of goods Act. 35.The judgment in civil revision application No.208/80 before the court of the then 32 judicial commissioner(Annexure P/6) which is cited by the Honble High Court at para 5,Page 6 of the Judgement of Second Appeal No.24 of 2012(Annexure P/4)(Page 104 of Slp) is completely erroneous as it is wrongly mentioned therein that the Transfer of Property Act repealed the chapter of Portuguese Civil Code dealing with the contract of Purchase and sale which is a fallacious statement, no where the Indian contracts act or Sale of Goods Act or Negotiable Instruments Act were even considered, these statutes govern the contracts in the state of Goa. 36.The judgment of civil revision application No.208/80 before the court of the then judicial commissioner (Annexure P/6) is erroneous and illegal. it is held in the judgment that article 1565 is aimed to protect the shares in the estate of their parents guaranteed by law to the childrens,but the judgment is silent about which law guarantees the share the article 1565 aims to protect or under which law 33 the shares are created for the childrens in their parents self acquired properties.only when shares are created the shares can be guaranteed and protected,the shares which does not exists cannot be guaranteed or protected. 37.The Honble High Court opinioned in the Judgment of Second Appeal No.24 of 2012 (Annexure P/4) that the provision of art 1565 is aimed to protect the shares in the estate of their parents guaranteed by law to the children. 38.No share in the present suit property was guaranteed to the respondents No.1(Respondent No.1 is the son of Respondent No.3 and her husband) under any of the law existing at the time of sale not even under article 1784 which guarantees share in the legitime portion to the descendents. 39.If we assume for a moment that no other law other than art 1565 protects the share 34 of the current suit property to the respondent No.1, the assumption is still wrong as the parents even though being prohibited from selling the present suit property to some of the children without obtaining the consent of the others under Article 1565, the parents can without any restriction sell the present suit property to any other person and Article 1565 is not violated in this case as the suit property does not form the part of the legitime portion. 40.Article 1565 does not make the children co-owner in the self acquired property of the parents.Hence the article 1565 does not provide for accrual of rights.And as such the self acquired property can be disposed to any other person without violating article 1565, only exception is sale to some of the children without obtaining consent of the remaining children. 35 41.The commentaries of Dr.Cunha Gonsalves,Tratade de direito civil ,vol VIII ,page 506-507 are irrelevant considering the landmark judgment of the Honble supreme court in Syndicate Bank V/s Prabha D. Naik and anr reported in 2001(4) SCC page 713 which has been completely disregarded by the Honble High Court under erroneous pretext of protecting share in the legitime portion.The Honble Supreme Court is the Court of Record and law declared by it cannot be disregarded. commentaries of Dr.Cunha Gonsalves appear at Page 8 of the Judgment of Second Appeal No.24 of 2012(Annexure P/4).(Page 106 of SLP) 42.The commentaries of Dr.Cunha Gonsalves,Tratade de direito civil ,vol VIII ,page 506-507 are also only pertaining to contracts. It is held in the commentaries that the article 1565 of the Portuguese civil code is a protection of legitima(legitimate shares) of the descendents. But the present suit property 36 is not part of the legitima and such the question of protecting of any share does not arise at all. 43.The Respondent No.1 did not have any share in the suit property at the time of sale. 44.The Honble High Court in the Second Appeal No.24 of 2012(Annexure P/4) held that the suit property is part of the legitime portion. Though even the respondents did not advance any contentions saying that the suit property is part of the legitime portion nor does any evidence exist on record in support of the opinion of the High Court that the suit property is part of the legitime portion. The assumption of the High Court that the suit property is part of the legitime portion is not based on evidence and as such illegal. 45.Right of inheritance to the estate leaver arises only on the death of estate leaver in the property left by him on the date of 37 his death and not in any other property and as such on the day of the execution of sale deed the respondent No.1 did not have any share in the suit property at that time. 46.No one is an heir to a living person. Before the death of the ancestor, an expectant heir or distributee has no vested interest but only a mere expectancy or possibility of inheritance. Such an individual cannot on the basis of his or her prospective right maintain an action during the life of the ancestor to cancel a transfer of property made by the ancestor. 47.The article 1784 in section III of the Portuguese Succession law titled LEGITIME AND INOFFICIOUS DISPOSITIONS defines the term LEGITIME PORTION. Article 1784 The legitime is the portion of the property which the testator may not dispose of, since it is reserved by law 38 to the heirs who are relatives in ascending or descending direct line. Single ) this portion consists of half of the property of the testator, not precluding the provisions of articles 1785, no. 2, and 1787. 48.The Honble High Court in the judgment of Second Appeal No.3 of 2006(Annexure P/5) which has been taken as precedent for deciding the Second appeal No.24 of 2012 at para 10 has held that on the grounds of article 1766 alone the sale of the suit property of second appeal No.3 of 2006 is null and void: In the present case, considering that it is not in dispute that upon the death of the husband of appellant no.3,no inventory proceedings were initiated to partition his estate nor any partition in fact has been carried out whereby the suit properties were allotted to the appellant no.3,the question of the appellant no.3 disposing the said properties in favour of appellant nos. 1 39 and 2 has no legal effect. It is also to be noted that the appellant no.3 had lineal descendents and such exercise on her part would affect the legitime of such descendants. In fact reading of provisions of Article 1766 of the Portuguese Civil Code,if such transfers are made and the above circumstances exist, the transaction is null and void.As such ,on this ground alone the impugned sale deed is null and void and has no legal effect. 49.As such the learned single judge of the Honble High Court erred in relying on article 1565, the issue which is though decided in Second Appeal No.3 of 2006(Annexure P/5) suffers from gross irregularity. 50.The Learned Judge in Second Appeal No.3 of 2006 (Annexure P/5) while deciding the issue of article 1565 at para 11 has wrongly held that(Page 126 of SLP): 40 Article 1784 of the Portuguese Civil Code Provided that the legitime means the portion of the properties that a person cannot dispose of because it has been set apart by law for the lineal descendants or ascendants. 51.The Learned Judge erroneously replaced the term testator with the term person thus changing the definition of the legitime portion,which then makes the article 1784 a provision pertaining to disposal of property during life time of a person(by sale or gift) and not testamentary succession. The wrong view of article 1565 being provision of succession law came into existence only because of erroneous amendment of article 1784 in the second appeal No.3 of 2006 (Annexure P/5),combined with the article 1565 which is actually a provision of contracts of sale;the article 1565 of the Portuguese civil code is as follows: The parents or grandparents cannot sell nor mortgage to children or grand 41 children, if the other children or grand children did not consent in the sale or mortgage. Sole para-if any of them refuse his consent or is incapable of giving it,or such consent is unable to be obtained,this shall be obtained by the family council,arranged in terms of article 207,which shall be called for this purpose 52.The replacement of the term testator with the term person in article 1784 allows the article 1784 and article 1565 to be read together thus merging the provision of succession law(article 1784) and the provision of contracts law(article 1565) which is a gross error. 53.The article 1784 clearly states that the legitime is the portion of the property which the testator may not dispose off, since it is reserved by law to the heirs, the parent who disposes his property by way of a will is called the testator. 42 54.In the present case neither of the parents is a testator as the property was disposed not by way of a will but through sale deed executed with the Petitioner and Respondent No.4 and 6. 55.As per the succession law still in force in Goa Only the property which a parent cannot dispose off in a will, since it is reserved by law to the heirs is called the LEGITIME PORTION, and not which has been disposed by way of a sale during their lifetime and which is not part of any sort of inheritance. 56.Under the succession law in chapter I titled PRELIMINARY PROVISIONS,In article 1735 which is the first provision of the chapter, states that: Article 1735 Any person may succeed, upon the death of another, to all his/her property, or to a part thereof, as a result of a disposition of a will or of the law. In 43 the first case, there is testamentary succession; in the second, intestate succession 57.As clear from the text of article 1735 that there exists only two types of Successions in the Portuguese civil code,which are: a)The testamentary Succession and the b)Intestate succession. 58.The article 1565 cannot be placed in any of the two types of succession, as no person can succeed to any property which can be said to be protected under article 1565, by will or under any other law, nor even under the said article 1565 itself.as such the learned judge of the Honble High Court was erred in declaring article 1565 to be provision of succession law only because article 1565 prohibits execution of contract of sale to some children without obtaining consent of remaining childrens. 44 59.Article 1565 does not provide accrual of rights, but only enforcement. As such the respondent No.1 did not have any co- ownership right in the suit property under article 1565 at the time of sale of the property. 60.In fact the article 1565 only puts a prohibition on execution of a contract of sale with the childrens without obtaining the consent of the others and does not result in any ownership rights to any of the children in the suit property nor leads to protection of any right or share in the property. 61.It is a fact that a person by no way under existing laws can dispose a property by way of a execution of a sale deed with his children or anyone else after his death. 62.Only possible way of disposing off a property after death is by way of a will.as such the article 1565 cannot be 45 construed as in continuation with the succession law as article 1565 is a provision of the contracts law of the Portuguese civil code and it does not and cannot prevent the parents from disposing of the present suit property to any other person. 63.The judgment of the High Court in Second Appeal No.3 of 2006(Annexure P/5) which has been heavily relied on for deciding the impugned judgment merely decides whether the article 1565 of Portuguese civil code which actually a provision of the chapter of contract of sale of the Portuguese civil code is not repealed by the Transfer of property Act, which is a very narrowly framed question and does not consider the other laws which were extended to the state of Goa. 64.As per the judgment of the supreme court in Syndicate Bank V/s Prabha D. Naik and anr wherein the Honble supreme court held that: 46 Be it noted that Article 535 containing the provisions of limitation in chapter III regulating the contracts in the Portuguese Civil Code which how-ever, stands replaced by the Indian Contract Act. The prescribed period for limitation pertaining to the contracts being in the same Chapter under Contract Act Cannot be said to be surviving as an independent provision rather than going along with the other provisions of the contract which by reason of adaptation of Contract Act stands replaced. It is thus cannot but be said to be an implied repeal. The necessity of having an express repeal was never felt by reason of the factum of adaptation of Indian Contract Act in so far as Chapter II is concerned. Either the Chapter survive in its entirety or it perishes in its all spheres it is one chapter dealing with contract and prescribed the period of enforcement of the same: no dissection is possible. 47 65.The article 1565 only provides for enforceability of a certain nonexistent right, that is it prohibits execution of contract of sale with some of the children without obtaining consent of the others. But what about the accrual of the rights?. The children do not accrue any right into the self acquired property during the lifetime of parents either by article 1565 or by any other law in existence. 66.If the article 1565 is still allowed to sustain the result is an absurdity. It is held by the Honble High Court in the impugned judgment the article 1565 prohibits the parents from selling their self acquired suit property to their children in detriment to the remaining children. But the parents cannot be prevented under article 1565 from selling their self acquired property to the persons other than their children, depriving all of their children. This is possible as the present suit property is not part of the legitime portion and as 48 such no restrictions on sale of the suit property are applicable under the succession law or any other law in existence. 67.And as held by the Honble Supreme court in Syndicate Bank V/s Prabha D. Naik and anr . The Portuguese Civil Code provides both for accrual of right and its enforceability and when the right stands divested, question of enforceability of the right arising from a different source and other than code, would not arise. Either the code applies in its entirety or it does not-there is no half way about it. 68.Article 1565 of the law of contract of sale of the Portuguese civil code or the said provision of succession law as wrongly held by the Honble High Court in the impugned judgment is a mere procedural aspect and not a substantial right. 49 69.Further the Honble Supreme Court Syndicate Bank V/s Prabha D. Naik and anr has held that: Incidentally, the legislature is supposed to be aware of the need of the society and the existing state of law: there is no reason whatsoever to consider that the legislature was unaware of the existing situations as regards the Portuguese Civil laws with a different provision for limitation. Needless to record the special reference has been made to the State of Jammu & Kashmir but after incorporation of the State of Goa, Daman & Diu within the Indian Territory, if there was any intent of having the local law being made prevalent there pertaining to the question of limitation only, there would have been an express exclusion and in the absence of which no contra intention can be deduced, neither any contra inference can be drawn. 50 70.If allowed to exist this provision of article 1565 is an absurdity and no purpose is accomplished, the parents instead of selling the property to the children can sell the property to any other persons.The whole purpose of in corporating this provision, which the Honble High Court held to be for protection of legitime share is a wrong justification for nullifying the legally valid sale deed. 71.The Honble High Court has not framed any substantial questions while deciding the Judgement of Second Appeal No.24 of 2012(Annexure P/4). Instead the issues of the judgment of Second Appeal No.3 of 2006 has just been assumed to be the issues of the present suit without considering the facts and evidence of the present suit. 72.It is agreed that the Honble High Court correctly answered the substantial question raised in the Second Appeal No.3 of 2006(Annexure P/5) i.e whether the 51 provisions of Article 1565 of the Portuguese civil code are not repealed under Section 44 of the transfer of property act. 73.But the Honble High Court has not decided whether the Article 1565 has been repealed or not by any of the statutes extended to the territory of Goa under The Goa,Daman and Diu (Laws) No.2 Regulation,1963. 74.In fact the sale deed which was in question in Second Appeal No.3 of 2006 (Annexure P/5) was essentially declared null and void under article 1766 of the Portuguese Civil code a provision dealing with communion of properties. 75.The repeal or non repeal of article 1565 was irrelevant to the said Second Appeal No.3 of 2006(Annexure P/5) as the sale was declared null and void under article 1766 , as such the parties did not find it necessary to challenge the part of the judgment of Second Appeal No.3 of 2006 52 which had held that the article 1565 to be construed in continuation of the succession law. 76.The Honble High Court committed illegality in blindly applying the judgment of Second Appeal No.3 of 2006(Annexure P/5) to the present suit without considering the facts and circumstances of the present case,the facts of the Second appeal No.3 of 2006 are completely different then that of the Second Appeal No.24 of 2012(Annexure P/4). 77.The article 1565 is a provision which finds its place in the chapter of civil code titled CONTRACT OF SALE. 78.The respondent No.1 is well aware that he cannot get a co-ownership right in the self acquired property of the parents in their lifetime, under any of the provisions of the succession law nor even under article 1565 of the Portuguese contract law. 53 79.The parents were free to dispose of the self acquired suit property as and how they want, there was no express prohibition on disposal of the self acquired property by the parents under the existing laws at the time of the execution of the sale deed, except the so called article 1565, of the law of contract of sale of the Portuguese civil code which prohibit execution of contract of sale with the children without obtaining consent of the remaining. 80.The High Court also failed to consider the law laid in the judgment of the Honble Supreme Court which is binding on the Honble High Court. 81.The High Court has completely ignored the existence of the Indian Contract Act by which the chapters in Portuguese Civil Code pertaining to contracts has been repealed 54 82.And also complete disregard for the law laid down by the Court of Record,The Honble Supreme court of India in Syndicate Bank V/s Prabha D. Naik and anr reported in 2001(4) SCC page 713. 83.Further it was held by the High Court without any evidence on record that the suit property being part of the legitime Portion is prohibited from disposal under Article 1565. 84.The facts and evidence pertaining to the second appeal No.3 of 2006 have been completely substituted for the facts and evidence of the present suit which is a gross irregularity. 85.The proceedings of the said Second Appeal No. 24 of 2012(Annexure P/4) and Civil Application Review No. 11 of 2014 Which is the Impugned Judgment are illegal, invalid, incorrect, null and void in the eyes of the law. 55 86.The Honble High Court nor any other court has decided whether the suit property is part of the legitime portion of the parents, no such evidence exists on record and even the Respondents have not advanced any such contention saying that the suit property is part of the legitime portions of the parents and has been prohibited from disposal under article 1784 of the succession law. 87.The Honble High Court has wrongly made a false assumption that the suit property being part of the legitime portion of the parents prohibited from disposal and for this reason further concluded that article 1565 is provision of succession law.in actuality the Honble High Court erroneously committed fallacy of Reverse Circular reasoning. That is first it is decided that the suit property is prohibited from sale under article 1565, then it is inferred that since article 1565 prohibits sale of the suit property without the consent of Respondent No.1 the 56 Respondent No.1 has ownership right in the suit property, and since article 1565 gives ownership right to the respondent No.1 it is inferred that article 1565 must be protecting share of the Respondent No.1,then it is inferred that since article 1565 is protecting share of the Respondent No.1 the suit property must be legitime portion and the article 1565 must be provision of the succession law. 88.The Honble High Court also failed to see that if a property is held to be part of the legitime portion during the lifetime of the parents only because some provision of the law of contracts of the Portuguese civil code prohibits its sale to some children without obtaining the consent of the others, The property has to be part of the legitime portion also when the sale is executed with persons other than the children or grandchildren, which is not the case about the present suit property if the opinion of the High Court in calling the suit property part of the 57 legitime portion are considered to be valid. 89.In fact the status of the present suit property being legitime share, as per the opinion of the High Court, changes when the parties between whom sale of the suit property is executed are changed from children to some other persons, which results in an absurdity as when the present suit property is sold to other person who are not children the property is not prohibited from sale under article 1565 and as such turns out to be not legitime portion of the parents. 90.The only justification relied by the Honble High Court for holding the present suit property as part of the legitime portion is the prohibition put by article 1565 on execution of contract of sale to some childrens without obtaining consent of the others and not under the provision of Article 1784 of the succession law which in fact decides the legitime 58 portion. The facts pertaining to the suit property were completely ignored by the Honble High Court while deciding the impugned judgment. 91.The High Court erred to ignore the fact that The Indian Contract Act has repealed the chapter of contracts act of Portuguese Civil Code containing article 1565. 92.The Honble High Court has disregarded the law laid down in the Judgment of the Honble Supreme Court in Syndicate Bank V/s Prabha D. Naik and anr which is binding on the Honble High Court,supreme court being the court of record. 93.The Honble Supreme Court in the case of Rupa Ashok Hurra Vs Ashok Hurra & Anr[(2002)4 SCC 288] a constitution Bench has held: Article 141 says that the law declared by the Supreme Court Shall be binding on all courts within the territory of India and Article 144 directs that all 59 authorities civil and judicial, in the territorty of India,shall act in aid of the Supreme Court. It is a Court of record and has all the powers of such a Court including power to punish for contempt of itself(Article 129). 94.The impugned order dated 20 th March 2014 in Civil Application Review No.11 of 2014 and 21 st June 2012 dismissing Second Appeal filed before the Honble High Court, is erroneous, invalid, incorrect, improper, null and void in the eyes of the law and as such, is liable to be set aside; 95.On the face of the above Special Leave Petition, the petitioner has made out a good case to succeed. The averments, orders and pleadings therein, a prima facie case is made out which warrants the maintainability of the Special Leave Petition. 60 6. MAIN PRAYER The petitioner, therefore, pray that your Lordships may graciously be pleased to:- a) Grant Special Leave to Appeal against the impugned Final Order/Judgment dated 20 th March 2014 passed by the Honble High Court of Bombay at Goa in Civil Application Review No.11 of 2014. b) That this Honble Court may be pleased to decide this Special Leave Petition in the absence of the Petitioner (in case the Petitioner fails to appear personally or by the Power of Attorney Holder for unavoidable reasons) for any oral argument as the facts and evidence stated in the present appeal are already on record. c) That this Honble Court may be pleased to pass such other order or to give such other direction protecting the interest of the Petitioner as this Honble Supreme Court may think fit and proper in the facts and circumstances of the present case so as to 167 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISIDICTION I.A. No._________ OF 2014 IN SPECIAL LEAVE PETITION (CIVIL) NO_______OF 2014 IN THE MATTER OF :- Smt.Vijaya Gajanan Naik Petitioner Versus Shri. Suresh Basu Naik & Ors. Respondents APPLICATION TO PERMIT THE POWER OF ATTORNEY HOLDER TO APPEAR IN PERSON BEFORE THE HONBLE SUPREME COURT. TO THE HONBLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDIA THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED MOST RESPECTFULLY SHOWETH: 1. The applicant had filed accompanying Special Leave Petition against the impugned Final Order and Judgment passed by the Honble High Court of Bombay at Goa in Civil 168 Application Review No.11 of 2014 dated 20 th March 2014. 2. That My son Mr.Vishal Gajanan Naik be permitted to appear in person before this court as my duly authorized representative/Power of Attorney Holder to argue in the Special Leave Petition at the time of hearing. The said Special Power of attorney is annexed herewith and marked as Annexure P/9 (Pages;170 to 176) 3. That I due to my health problems will not be able to attend the day to day proceedings of the Special Leave Petition. 4. That due to previous refusal to take up the matter in the High Court by the High Court Advocates and trying to mislead the petitioner, the petitioner has not approached any advocate as all the three advocates the petitioner approached have misleaded the petitioner and has also misleaded the Honble High Court.