Mrs. Ethel Lourdes D’souza Lobo v. Lucio Neville Jude De Souza & Ors.
S. RAVINDRA BHAT, J.
1. The present appeals arises from a judgment rendered by the
Bombay High Court, Goa Bench1. The dispute arises out of inventory
proceedings 2 under Chapter XVII by Articles 1369 to 1447 of the
Portuguese Civil Procedure Code (hereafter “the Code”).
2. Inventory proceedings in the present case arose and were
initiated on account of the death of Lt. Guilherme Caetano Souza and
his wife, Maria Guilhermina Augusta Lourdes Aguiar Souza. These
proceedings were initiated in 1985 for partition of the estate of the said
deceased.3 There were six heirs of the deceased (hereafter referred to
by their names) - i.e., Pedro (survived by the petitioner, Ethel Lourdes;
and Respondent Nos. 23-26); Hermano (survived by the fi rst four
respondents); Maria Emila Pulqueria Natividade (fift h respondent,
deceased and survived by her heirs – Respondent Nos. 6 to 11); Maria
Patricia Lucia (deceased, survived by Respondent Nos. 12 to 21); Maria
Emilia Julieta (deceased); and Edwin (deceased). The estate in question
comprised, inter alia, three items of immovable property. Lt. Edwin,
one of the heirs, succeeded to two items (Nos. 2 & 3) of the properties,
1 In WP No. 671/2010 dated 10.08.2012
2 Described in Treatise of Civil Code, by Dr. Luis da Cunha Gonsalves, Volume X
page 590 as
“Inventory is a complete description of assets and debts or of the estate of
the inheritance and liabilities of the estate, in order that one or other, or the balance
remaining after payment of debts, be divided amongst the successors of the deceased,
or allotted to his sole heir.”
3 Inventory proceedings No. 109/1985/1
MRS. ETHEL LOURDES D’SOUZA LOBO v. LUCIO NEVILLE
JUDE DE SOUZA & ORS.
having bid highest among the heirs in an auction (licitation) held on
28.02.2001. The property in dispute is Item No. 1.
3. It is an undisputed fact that the Code is a comprehensive law,
incorporating both substantive and procedural elements, regarding various
matters, including those relating to personal laws, with e lements of
inheritance and succession to estates. The Code was initially framed in
1867; it became applicable as “law in force” upon assimilation of Goa
into the Indian Union by virtue of Section 5 (1) of the Goa, Daman and
Diu Administration Act, 1962.
4. When succession opens up to an estate, the properties (bo th
movable and immovable) and liabilities of the deceased are inventorized.
In the inventory proceedings, an elder member of the family is appointed
as Cabeca de Casal (administrator). The administrator has to prepare
an inventory of all the properties of the deceased. T he deceased’s
properties are inventorized and evaluated, after which t hey are to be
distributed in accordance with the shares laid down in the Code4.
5. The steps following the above are that under Article 1369 of
the Code, the initial valuation of the property has to be s ettled by the
parties initiating the inventory proceedings. By Art icle 1387, the
concerned court, orders the appraisal of the properties by an appraiser,
where no questions (issues or disputes) are raised against the description
or those so raised had been decided. The valuation stage would ar ise
when the licitation takes place, and parties offer the mark et value for
each property. After parties are intimated about the list of assets under
Article 1379, they or any of them have to apply for licitation. By Article
1391, if interested parties do not apply for licitation within 48 hours, the
right is waived, and there can be no licitation. In such an event, the
property enlisted in the proceedings would be allotted to the interested
parties in accordance with their respective shares. Licitation, quite simply
is a closed auction, in which heirs of the deceased, entitled to shares in
the estate, participate. Licitation is provided by Article 1412; it reads as
follows:
“The licitation is an auction to which only the heir s and
moiety holder spouse are admitted, except the cases wher e,
in terms of preceding articles, the donee or legatee sh ould
also be admitted. It may fall over the properties o f the
4 Ref Jose Paulo Coutinho v. Maria Luiza Valentina Pereira & Ors. (2019) 20 SCC 85
119
inheritance which are not necessarily to be allotted in any
particular party.”
6. Reverting to the facts of this case, on 28.02.2001, Item No. 1
too was part of the licitation; Late Maria Emilia Souza was the highest
bidder. Since she defaulted in the payment of the owelty amount, a fresh
bid was ordered. On 17.12.2004, the bidding in the second licitation
commenced, and continued on to 03.01.2005 involving Item No. 1.
Hermano (represented by the first four respondents in this court) was
successful, with the highest bid for 34,15,100/-. Hermano had b een
constituted as the Cabeca de Casal. He died on 11.07.2008. By then,
he had not deposited any amount towards the bid offered by him. At that
stage, the final partition chart had not been drawn. This fact was reported
to the concerned court seized of the inventory proceedings. At the same
time, an application was moved by Adelaide M. De Souza (Pedro’s heir,
Respondent No. 26) for being impleaded as a party to the proceedings.
The present appellant also moved an application for the appointment of
a fresh Cabeca de Casal and reauction of Item No.1.
7. The claim for reauction was resisted by Hermano’s heirs, who
argued that they could continue the proceedings and that they were
entitled to Item No.1. The Inventory court (or the trial court), b y its
order5 allowed the appellant’s application citing Article 1417(c) of the
Code. The respondents had argued that the provision did not apply since
the notice of payment of owelty amounts had not been made. The trial
court held that the property had to be reauctioned and since Hermano
had not deposited the sale proceeds within the time stipulated, and his
heirs could not claim ownership of the auctioned property, i.e. , Item
No.1. It was further held that Hermano’s heirs could not succe ed in
respect of the bid, because that was not a heritable item. This decision
was appealed against, by Hermano’s heirs.
8. The District Judge, Margao, by its order6 reversed the ruling of
the inventory court and held that the effect of a successful bid was that
the successful bidder had a right to the property, which upon his death
devolved on his legal heirs. Being aggrieved by the decision of the District
Judge, the appellant approached the High Court, which on the basis of
the materials on record concluded that the inheritance of an hei r in
inventory contemplated under Section 1737 of the Code, included rights
5 dated 25.03.2009
6 dated 27.08.2010, in Misc. CA 87/2009.
MRS. ETHEL LOURDES D’SOUZA LOBO v. LUCIO NEVILLE
JUDE DE SOUZA & ORS. [S. RAVINDRA BHAT, J.]
`
flowing from a successful bid in a licitation, as it included the right to pay
owelty. It was further held that the occasion for depositing the amount
towards auction would arise only after the amounts were apport ioned
with regard to each heir’s share and only if the bid amount exceeded the
shares of the successful bidder in the inventory proceedings. It was
further held that the obligations and rights devolved upon legal successors,
i.e., present respondents. The court also held that the right of a successful
bidder could not be considered to be in personam so resulting in its
extinguishment after his death. To hold so, the High Court cited Article
1439 of the Code, which, in its opinion, confers a right in presenti upon
a successful bidder in an inventory proceeding to hold the property as an
administrator.
Submission of parties
9. Mr. Keane Sardinha, learned counsel for the appellant, urged
that the findings of the first appellate court and the High C ourt, are
erroneous. It was argued that the rights conferred upon a succes sful
bidder who is a party to inventory proceedings under Article 1737 do not
devolve upon his heirs on his death. The appellant urged that a bid in an
auction does not create any right or interest in the property, nor is there
a concluded contract between the bidders and other interested par ties.
Consequently, no heritable right or legally enforceable right p asses to
the heirs of the deceased participant in a licitation procee ding. It was
submitted that there was no chart of partition determining the share of
owelty amounts in the proceedings, which meant none of the pa rties
could lay claim or demand their share of the price.
10. It was further submitted that the right to claim an asset through
an auction can never be a heritable right, and is extinguished upon the
death of the bidder. In the present case, it was emphasized that Hermano
had expired much before the bid amount was paid. Consequently, the
auction had no legal effect. Relying upon Article 1417(c), it was submitted
that since no amount was in fact deposited, after licitatio n, even after
the successful bid, no rights could vest in Hermano’s heirs upon his
death.
11. It was further stressed by Mr. Sardinha that in respect of the
same property, i.e., Item No.1, a previous auction – held in the year
2001 was deemed abortive on account of failure by the successful bidder
to deposit the owelty amount. In these circumstances, the same logic
121
had to prevail to oust any claim by Hermano’s heirs. Lastly, it was urged
that the inventory proceedings had prolonged - since the auction in the
present case was held in 2005 and till his death Hermano did not wish to
fulfil his obligation. His heirs resisted the reauction, which would fetch a
higher amount for the property, and be fair and equitable to all heirs.
12. Ms. Vibha Dutt Makhija, learned counsel for the respondent
submitted at the outset that this Court should not interfere w ith the
concurrent findings of the appellate court and the High Court. Learned
counsel submitted that inventory proceedings cannot be linked to partition
suits. They are meant to describe and apportion the estate of a deceased
person. Article 2064 to 2166 of the Code enacts substantive provisions,
whereas procedural provisions are contained in Articles 1369 to 1447.
In this procedure, when licitation is held at the request of parties, specific
properties are earmarked after their comprehensive agreed valuation.
The parties then indicate the mode of partition which is rule d by the
court. It is after this process that the court prepares a chart of partition
indicating the inter se amounts to be paid by the parties to the inventory
proceedings depending on their entitlement and shares, and having regard
to the adjustment of the manifest value of their shares with any obligations
on their part (such as the final amount payable after ad justment, as
successful bidders). It was submitted that in the present case, the stage
of final partition had not been reached. Consequently, the highes t bid,
i.e., ¹ 34,15,100, could not be called the owelty amount payable by
Hermano.
13. It was submitted that the court correctly held that t he estate
of Hermano comprised not only of his rights and obligations but also his
right as a shareholder in the inventory proceedings – which included his
right as a successful bidder for Item No.1. In this regard, r eliance was
placed upon Article 1737, by the respondent in supp ort of their
submissions.
Analysis and Conclusions
14. The provisions of the Code, to the extent they are relevan t,
are extracted below:
“Article 1736 (Concept of heir and legatee)
Heir is a person who succeeds to the totality of th e
inheritance, or to a part thereof without specifying the sum
MRS. ETHEL LOURDES D’SOUZA LOBO v. LUCIO NEVILLE
JUDE DE SOUZA & ORS. [S. RAVINDRA BHAT, J. ]
of money or the object. Legatee is a person, in whose fav our
the testator disposes of a sum of money, or specified ob jects,
or a certain part thereof.
. Article 1737
The inheritance covers all the properties, rights a nd
obligations of the author, which are not merely personal or
which are otherwise excepted by the disposition of the author
himself or by law.
*********** *********** ***********
Sub Division V
Of the Licitation and Partition
Article 2126 (Form of partition and declaration of licitation)
After the description and appraisal is done, as afor esaid,
the parties shallbe heard as to the form of partition, and if
any of them is willing to bidfor any property or other ob ject,
he shall so declare in his reply.
Article 2127 (Formalities of licitation and when to be held )
The licitation shall precede the act of partition, after all the
parties are summoned, and it shall take place amongst the m
only, as if it is a case of an auction.
Article 1416 (Chart of partition)
After the file is received with the order referred to in Ar ticle
1414, the office shall draw the chart of partition, within
eight days, in accordance with the same order and i n
accordance with the provision of the preceding Articl e.
For the purposes of the drawing of the chart, first of al l, it
will be found what is the total amount of the assets, by adding
the values of each kind of properties as per appraisal s and
licitations and by deducting the passive debts, legacies and
charges which ought to be discounted; thereupon the
amount of the share of each party shall be worked out and
the part which is allotted to the party in each typ e of
properties; finally the allotment of each share will be done
with reference to the numbers of the items of the descri ption.
123
The lots which are to be drawn by sortition shall b e
designated by letters.
Paragraph 1: The values shall be indicated by figures only.
The numbers of the items of the description shall be shown
in figures and by words and when they are continuous only
the terminal numbers between which the numbering is
comprised shall be noted. In case some fraction of the item s
fall to the coheirs, such fraction shall be mentioned.
Paragraph 2: In each lot the kind of properties of which i t
is comprised shall be shown.
Paragraph 3: The judge shall initial each and every page
of the chart and shall confirm the errata note of corrections,
erasures or interlineations.
Article 1417 (Steps to be taken when the gifted propertie s
or properties
subject of licitation exceed the share of the party)
Where the office finds, at the time of drawing the char t, that
theproperties gifted or taken by licitation exceed the s hare
of the respective party or the disposable portion of the
deceased, a note shall be recorded inthe file, in the shap e
of a chart, indicating exactly what is the amount o f the
excess, and thereupon the following shall be observe d:
(a) Where in between the properties gifted to a co-hei r there
exists any property not divisible, which does not fit wholly
in the share to the donee, such property shall form part o f
the mass of partible properties as any other property o f the
inheritance; in other cases, the donee shall be notif ied to
exercise, within three days, his right of choice wh ich is
conferred upon him by paragraph 4 of Article 2107 of the
Civil Code, failing which his share will be allotted with the
properties indicated by the judge;
(b) Where the gift made to a stranger is inofficious, th e same
shall be reduced in terms of Article 1493 onwards o f the
Civil Code;
MRS. ETHEL LOURDES D’SOUZA LOBO v. LUCIO NEVILLE
JUDE DE SOUZA & ORS. [S. RAVINDRA BHAT, J. ]
(c) Those who have not taken the properties in lici tation
and who are to be allotted the owelty money due by tho se
who were successful in the licitation, shall be not ified to
demand within three days the payment, if they so desire. If
the demand is made the successful bidder shall be notified
to deposit the amount failing which the licitation will be o f
no effect.
Where the payment is not demanded, the owelty money shall
earn the legal interest from the date of final judg ment of
partition and the creditors thereof may register th e legal
hypothecation over the properties adjudicated to the debtor.”
15. It is recognized that, unlike partition suits, inventory proceedings
under the Code are not essentially adversarial. In these pro ceedings,
initiated upon the death of one governed by the Code, that event is reported
to the Court. A Cabeca de Casal (administrator or head of the
household) is appointed by the Court, from amongst senior members of
the family, to manage the properties of the decease d. When the
proceedings culminate after the apportionment of shares, the re is no
decree.7 The Cabeca de Casal is enjoined to report all items of the
deceased’s estate - if there are bequests in testament ary instruments,
their description. Thereupon the items are sought to be divided: for that
purpose, each item is valued. Those properties which cannot be divided,
are then the subject of licitation proceedings, where heirs are allowed to
bid for each item of those properties. The chart of pa rtition is then
prepared, listing out the share and the value of shares of ea ch heir.
Those who secure properties (through licitation, etc.) in excess of such
share have to pay owelty amounts. As to what is owelty, was explained
by this Court in T.S. Swaminatha Odayar v. Official Receiver of West
Tanjore8 in the following terms:
“It therefore follows that when an owelty is awarded to a
member on partition for equalization of the shares o n an
excessive allotment of immovable properties to anot her
member of the joint family such a, provision of owe lty
ordinarily creates a lien or a charge on the land taken under
the partition. A lien or a charge may be created in express
7Ref. Zacarias Durate Domoingos Pereira v. Camilo Inacil Evaristo Pereira , AIR
1984 Bom 295
8 [1957] 1 SCR 775
125
terms by the provisions of the partition decree itself. There
would thus be the creation of a legal charge in favou r of
the member to whom such owelty is awarded. If, howe ver,
no such charge is created in express terms, even so the lien
may exist because it is implied by the very terms o f the
partition in the absence of an express provision in that
behalf. The member to whom excessive allotment of prope rty
has been made on such partition cannot claim to acqu ire
properties falling to his share irrespective of or dischar ged
from the obligation to pay owelty to the other members. What
he gets for his share is, therefore, the properties al lotted to
him subject to the obligation to pay such owelty and there i s
imported by necessary implication an obligation on his part
to pay owelty out of the properties allotted to his share and
a corresponding lien in favour of the members to whom such
owelty is awarded on the properties which have fall en to
his share.”
16. Owelty, then, is awarded to a member in proceedings of partition
for equalization of the shares on “an excessive allotment of immovable
properties to another member.” The total amount which has to be
distributed to the heirs as per their shares, therefore, includes inter alia,
on the owelty sums paid in, by one who can claim entitlement to immovable
property in excess of the share allocable to her or him.
17. One of the earlier decisions of the Bombay High Court in
Shri Damodar Ramnath Alve v. Shri Gokuldas Ramnath Alve & Anr. 9
explained the stage of payment of owelty:
“23. Article 1417 refers to the steps to be taken whe n the
gifted property or properties subject of licitation exc eed the
share of the party. Clause (c) of Article 1417 read s as
under:-
“c) Those who have not taken the properties in licit ation
and who are to be allotted the owelty money due by tho se
who were successful in the licitation, shall be not ified to
demand within three days the payment, if they so desire. If
the demand is made the successful bidder shall be notified
9 1997 (4) Bom CR 653
MRS. ETHEL LOURDES D’SOUZA LOBO v. LUCIO NEVILLE
JUDE DE SOUZA & ORS. [S. RAVINDRA BHAT, J. ]
to deposit the amount failing which the licitation will be o f
no effect.”
In the instant case the demand was made and notice w as
issued on 4th January 1989. Thus, from this day period o f
5 days begins. He filed an application dated 12th Janu ary
1989, stating therein that he be exempted from the pay ment
of owelty money until the decision of Civil Suit No . 202/
1986/A and same came to be dismissed on 18th February
1989. On 27th February 1989, appellant Damodar file d
another application stating that challans be issued to h im
to deposit the owelty money. Challans were handed over to
him on 28th February 1989. However, by filing applications,
the period is not extended. The appellant Damodar f ailed
to deposit the money within 5 days and, therefore, Damodar
no more remained a successful bidder. His right was
extinguished.”
18. It is clear that the question of paying owelty, or any amount,
by any heir, including one who bids successfully for an item, is dependent
upon a demand by one or the other heirs. This point was brought home,
highlighting the need for making a demand, in another decision of the
Bombay High Court, i.e., Motibai Sarvotham Pai Cano & Ors. v.
Maria Elsa Do Perpetuo Socorro Mota & Ors. 10 where the court
held as follows:
“A look at the provision of Article 1417 clearly su ggests
that for failure to pay owelty money the creditor is enti tled
to legal interest from the date of judgment until re covery
and is further entitled to register a sort of mortgage in respect
of the property when demand is not made. It is ther efore
clear that failure to pay money does not bring abou t the
reversion of the property. But, in a case where the de mand
is made by the person who is entitled to receive owelty a nd
if the same is not paid within three days of the no tice of
demand, the allotment becomes ineffective and the property
be put to re-auction and at that re-auction the defa ulting
party is not entitled to participate and offer any bid.”
10 1994 (2) Bom. C.R. 628
127
In Ranjit Satardekar v. Clotildes Fernandes it was held as
follows:11
“14. In my view, article 2137 of the Civil Code doe s not
confer any substantive right on a party. It deals with as pects
of procedure regarding payment of auction price. It was
contained in the law enacted in 1867. The C.P.C., as already
stated, was enforced w.e.f. 1/01/1941 and in the li ght of
new provisions having been made subsequently as to wh en
the payment is to be demanded and by whom and to whom
and the consequences which should follow in case of failure
to deposit, the provisions of Article 2137 of the Civil Code ,
in my view would stand impliedly repealed and substitut ed
by the provision of Article 1417(c) of C.P.C. Admittedly, the
appellants were notified to demand the payment as
contemplated by Article 1417(c) but did not insist tha t the
same should be made and in the light of that the appellants’
challenge to the chart of partition, prima facie, c annot be
accepted. It also does not make much sense that the highest
bidder should be asked to deposit the entire price of the bid
when his own share in the bided property is substan tial.
The view that the provision of article 2137 of the Civil Co de
stands impliedly repealed and now article 1417 C.P. C.
overrides article 2137 of the Civil Code is a view h eld by
learned authors Fernando Andrade Pires de Lima and Joao
De Matos Antunes Varela reproduced herein above. It is also
the view held by Supreme Court of Portugal in its decis ion
dated 9/04/1957 in File No. 56.939 wherein the Supr eme
Court stated:
‘article 2126 and following of the Civil Code today is in a
great part substituted by the respective provisions of the
Code of Civil Procedure’…”
19. This court too has endorsed the view expressed by the Bombay
High Court on the subject, in Baburao Karekar v. Vilas Atmaram
Bandodkar 12.
11 Civil Application No. 294 of 2007 in First Appeal No. 289 of 2006 , decided by
Bombay High Court on 14.02.2008
12 (2015) 12 SCC 659
MRS. ETHEL LOURDES D’SOUZA LOBO v. LUCIO NEVILLE
JUDE DE SOUZA & ORS. [S. RAVINDRA BHAT, J. ]
“II. Article 1417(c) of the Portuguese Code translat ed by
Mr M.S. Usgãocar in Family Laws of Goa Daman & Diu
‘(c) Those who have not taken the properties in licitation
and who are to be allotted the owelty money due by tho se
who were successful in the licitation, shall be not ified to
demand within three days of the payment, if they so desi re.
If the demand is made the successful bidder shall be notified
to deposit the amount failing which the licitation will be o f
no effect.
Where the payment is not demanded, the owelty money
shall earn the legal interest from the date of final judgme nt
of partition and the creditors thereof may register the l egal
hypothecation over the properties adjudicated to the debtor .’
III. Comments by noted Portuguese jurist Joao Antonio
Lopes Cardoso, in his book Judicial Partitions — Th eory
and Practice, Vol. 2, Edn. 1955 on Article 1417
‘If the Registry finds, when preparing the chart, t hat
the assets taken in the auction exceed the share of the
respective interested party, it shall make a memo in the form
of a chart stating precisely the amount of the excess. [Artic le
1417 of the Portuguese Code of Civil Procedure]
Thereafter, those who did not offer any bid or rath er
those who receive less, to whom owelty money is due by t he
highest bidders or by those who have exceeded their
respective share, shall be notified to demand the pa yment
within three days, if they so wish.
If they make a demand, the highest bidder or the person
who has been allotted in excess shall be notified to deposit
the owelty money under pain of the auction becoming
ineffective. [Article 1417 clause (c) of the Portuguese Ci vil
Procedure Code.]’”
10. Though the learned counsel for the parties have urged
different meanings to the translated versions to further thei r
respective cases, on close scrutiny, we do not fin d any
variance in the meanings of the translated provisions of t he
Code. In fact, according to us, the purport and meaning of
129
Article 1417(c) is clear and unambiguous. After a chart of
partition is drawn up and approved by the court, un der
clause (c) of Article 1417, a duty is cast on the c ourt to
identify all the parties who had not taken part in the family
auction/licitation and ensure service of notice on such
person(s) so that within 3 days of receipt of such notice, t he
said parties i.e., creditors can raise a demand for payment,
if they so wish. Once such a demand is raised the auction-
purchaser/successful bidder is duty-bound to pay th e
amount, failing which the licitation will cease to have any
legal effect. No time-limit for payment by the auct ion-
purchaser is specified. It is in the aforesaid backdrop of the
provisions of the Code that the court will be requi red to
examine the rival stand of the parties as projected before
us in the present appeal.
11. Admittedly, in the present case, no notice was issued by
court to the creditor(s) to raise any demand for payment as
required under Article 1417(c) of the Code. The High Court
has proceeded on the basis that the reply filed by the
respondent before the learned trial court on 26-6-2 008
constitutes such a demand and further that within 3 days
thereof payment was not made by the appellants ther eby
vitiating the auction proceedings. Even if we are to proceed
on the aforesaid basis insofar as the demand of the
respondent is concerned, the alleged failure on the part o f
the appellants to deposit the amount within 3 days could
not have occasioned a default to vitiate the auctio n
proceedings, as held by the High Court. Article 1417(c) does
not contemplate invalidity of the licitation on fai lure to
deposit the amount demanded by the creditor within 3 days.
The period of 3 days has been stipulated for raisin g a
demand by the creditor after such creditor receives the notice
that he may raise a demand for payment. If Article 1417(c)
is to be read in the manner indicated above we do not see
how the High Court could have held the auction proceedings/
licitation to have been vitiated on the alleged failure of the
auction-purchaser/appellants to pay the amount with in 3
days. In any case, the “demand” made in the reply dat ed
MRS. ETHEL LOURDES D’SOUZA LOBO v. LUCIO NEVILLE
JUDE DE SOUZA & ORS. [S. RAVINDRA BHAT, J. ]
26-6-2008 is not pursuant to any notice issued under Article
1417(c) of the Code.
12. All the above facts lead us to the conclusion that the
High Court was not correct in holding that in the pr esent
case the licitation was rendered invalid as there had been a
failure on the part of the appellant to pay the amo unt
demanded by the respondent as required under Articl e
1417(c) of the Code. The conclusions recorded by the High
Court in the impugned order are plainly untenable and would
justify interference. ”
20. It is, thus, obvious that upon successfully bidding in an auction,
the amount to be paid in by the concerned heir is payable upon a demand
by any other heir to such bidder, asking for the amount to be deposited.
The limitation period, so to say, is dependent upon the demand so made.
The rationale for this rule is that till the amount in excess of such bidder’s
share is not computed, they remain in the dark about the sum to be paid.
In the present case, it is not disputed by the appellant that such a demand
was not made; the parties were not notified as to the amounts they were
entitled to; or that the respondent did not make the demand. For this
reason, this court is not persuaded by the submissions of the appellant.
21. As far as the rights of Hermano’s heirs to succeed to his
entitlement to the item bid for is concerned, the appellant’s argument
was that the right to receive such property was conditional or contingent
upon his depositing the entire bid amount; since he did not do so, the
heirs cannot inherit some vague inchoate right. A perusal of Article 1737
of the Code reveals that it is cast in wide terms; it dec lares that the
“inheritance” covers “all properties, rights and obligations of the
author, which are not merely personal or which are otherwise
excepted by the disposition…” Concededly Hermano was an heir,
entitled to a share in the estate of the deceased. Upon his d eath, that
share would devolve on the heirs. The question then is whether
Hermano’s entitlement to claim a particular item upon payment of owelty,
when demanded, is “property” or a “mere personal right.”
22. What Article 1737 provides for is that inheritance, or the estate
of a deceased, comprises of all properties, rights, and obligations which
are not personal or otherwise excepted from disposition. Thus, the concept
of inheritance is wide and embraces all rights and obligations, including
131
property. Now, property itself is a wide term; it includes corporeal and
incorporeal property, movables and immovable property, intellectual
property (which are essentially negative rights, in the form of legal
enclosures that the owner is entitled to, to prevent use by others). Rights
and entitlements are even wider concepts. In Vasudev Ramchandra
Shelat v. Pranlal Jayanand Thakar 13 this court approved the view
that delivery of shares, with share transfer forms, which led to rights to
get the shares registered, was property:
“We think that such a right is in itself “property” and
separable from the technical legal ownership of the shares.
The subsequent or “full rights of ownership” of shares would
follow as a matter of course by compliance with the
provisions of Company law. In other words, a transfer of “
‘property” rights in shares, recognised by the Trans fer of
Property Act, may be antecedent to the actual vesting of a ll
or the full rights of ownership of shares and exercise o f the
rights of shareholders in accordance with the provisions of
the Company law.”
23. The other manner of examining the issue is whether Hermano’s
rights were “personal rights”. A right to claim specific performance of
an agreement to sell has been held to be a personal right i n Umabai &
Anr. v. Nilkanth Dhondiba Chavan (Dead) by L.Rs. & Anr.14 and
Bhimrao Ramchandra Khalate (Deceased) through L.Rs. v. Nana
Dinkar Yadav Tanpura & Ors15. Similarly, the claim of a trustee against
another co-trustee is a personal right, per Ashok Kumar Gupta and
Anr. v. Sitalaxmi Sahuwala Medical Trust and Ors.16; and in Amirtham
Kudumbah v. Sarnam Kudumban17, it was held that the right to impeach
a sale effected by a minor’s guardian is a personal right v ested in the
minor which is not transferable.
24. In the present case, it cannot be said that Hermano’s right to
participate, and claim the specific item of property, at the appropriate
stage - when owelty was to be demanded, was a mere personal right,
which extinguished upon his death. The entitlement to bid in the licitation
13 1975 (1) SCR 534
14 (2005) 6 SCC 243
15 2021 (9) SCC 45
16 2020 (4) SCC 321
17 1991 (2) SCR 389
MRS. ETHEL LOURDES D’SOUZA LOBO v. LUCIO NEVILLE
JUDE DE SOUZA & ORS. [S. RAVINDRA BHAT, J. ]
process was not a personal right, but in his capacity as a member of the
family, of which he had been constituted as the Cabeca de Casal. If all
other items are heritable by his heirs and legal representatives (as there
is no dispute that they are, because they step into his shoes) an entirely
different conclusion is unsupportable in regard to the item of prop erty
for which he bid successfully, but for which no demand was made, for
payment of any amount. This was because, the final chart of partition
containing the excess payments to be made, by one or other members of
the family had not been prepared; no demand for payment or deposit of
owelty was concededly made by any member of the family. However,
that did not mean that the highest bid by Hermano w as, in some
inexplicable manner, effaced. His position and right as a successful bidder,
and his obligation to pay the concerned amount, when called upon to do
so, were heritable by his heirs and legal representatives.
25. For the foregoing reasons, the impugned judgment of the High
Court is sound. The appeals are therefore, without merit, and,
consequently, dismissed without an order on costs.
Ankit Gyan and Anurag Bhaskar Appeals dismissed.
(Assisted by : Rahul Kumar, LCRA)