Judgment:
N.A. Britto, J.
1. This is Defendants' Second Appeal arising from R.C.S. No. 138/96/A.
2. Heard learned Counsel and Senior Counsel on behalf of the Appellants and Respondents, respectively.
3. Admit on the following substantial questions of law: Whether the first Appellate Court committed illegality to grant prayer for recovery of possession inspite of recording a plea of finding that the Respondent had no right into the suit property and the Appellants were in possession thereof?
4. The parties hereto shall be referred to in the names as they appear in the cause title of the said Civil Suit. The Plaintiff claiming to be the son of Mr. Diogo Pereira and Mrs. Serafina filed the Civil Suit, inter alia, claiming for a declaration that the Inventory Proceedings bearing No. 140/91 were null and void; for eviction of the Defendants from the house situated in survey No. 16/20 and for injunction to restrain the Defendants from interfering with Plaintiff's possession of the suit property and alternatively for recovery of the same.
5. The suit property appears to be consisting of five plots surveyed under different numbers mentioned in para 1(a) to 1(f) of the plaint. The house is situated in survey No. 16/20. There is no dispute that the suit property belonged to Maria Angelina Lobo e Pereira, wife of Diogo Pereira who were married under the regime of Communion of Assets and the suit property was recorded in the name of the said Maria Angelina Lobo e Pereira in the survey records. The said Maria Angelina Lobo e Pereira was residing at Terekhol, Pernem while her husband Diogo Pereira was residing at Mumbai. As she was unwell, she proceeded to Mumbai and died there on 19-7-1976. Later, the said Diogo Pereira died on 24th April, 1978, and, admittedly, both of them died without leaving any ascendants or descendants.
6. The case of the Plaintiff is that they also did not have collaterals. The case of the Plaintiff is that he was born on 28-6-1957 to Diogo Pereira and Serafina and upon the death of the said Diogo Pereira he became his sole and universal heir and the suit property which was always enjoyed by the said Maria Angelina Lobo e Pereira and upon her death by Diogo Pereira was enjoyed by him after his death. It was also his case that as the said Maria Angelina Lobo e Pereira was alone, she had requested Defendant No. 1 to stay with her along with his family and when she went to stay in Mumbai she had requested Defendant No. 1 to continue as the caretaker of the house and with respect to the pluckings of the property she had instructed one Joao Jose Fernandes to pluck the same and she had also instructed the said Joao Jose Fernandes to attend the caretaker, the Defendant No. 1, as and when required, and, upon the death of the said Diogo Pereira, the Plaintiff acquired the suit property by succession and he had instructed the said Joao Jose Fernandes to attend to the caretaker and to pluck the coconut trees from the property. It was also the case of the Plaintiff that in the month of May, 1969, the said Joao Jose Fernandes informed the Plaintiff that the suit plots surveyed under Nos. 16/2 and 10/5 were plucked by the Defendants whereupon the said Defendants informed that they had become the owners and therefore the Plaintiff came down immediately to Goa and inquired with Defendant No. 1 as to who had authorized him to pluck the same and Defendant No. 1 stated that the properties had been given to him by the Court and that he had even got the Form Nos. I and XIV upon the Court's order.
7. The Defendants did contest the suit by filing a written statement and pleading that the father of the Defendant Nos. 1, 3 and 4 was the cousin brother of the said Maria Angelina Lobo e Pereira and after her death, the share in the properties was inherited by them. However, the said Defendants did not step in the witness box in support of the said plea as a result of which it had to be held that they failed to prove that they had inherited the suit property as collaterals of the said Maria Angelina Lobo e Pereira. It also appears that based on a similar claim they had obtained Inventory Proceedings and allotment in their favour which again in the absence of any proof that they were collaterals would go to show that they would acquire no title by virtue of the said Inventory Proceedings. The learned trial Court held and, in my view rightly, that the defendants had no relations with the said Diogo Pereira and therefore they could not succeed to the estate left by him. The learned trial Court also came to the conclusion and again in my view rightly, that the Plaintiff had failed to prove that he is the sole heir of late Diogo Pereira. The learned first Appellate Court came to the conclusion that since the Plaintiff was not a party to the inventory proceedings they were not binding upon him. The learned first Appellate Court has rightly observed that the Defendants were claiming to be the children of the cousin brother of Maria Angelina Lobo. However, the Defendants did not lead any evidence in support of their claim. The learned first Appellate Court also rightly observed that they were not entitled to inherit any share in the suit property. Since they had failed to prove that they were entitled to inherit the suit property as collaterals of the said Maria Angelina Lobo in inventory held upon her death and without any proof that they were her collaterals any allotment made in their favour in such proceedings would certainly not confer on them any title to the suit property.
8. The Plaintiff having filed an appeal, the same came to be allowed by Judgment dated 23-11-2006 with confused findings. The learned first Appellate Court came to the conclusion that neither the Plaintiff nor the Defendants had inherited the suit property from anybody but at the same time came to the conclusion that when strangers tried to dispossess the illegitimate child from the possession of his parents' property he could claim a better title against them by virtue of his possession. At the same time, the learned first Appellate Court had also come to the conclusion that the Defendants were in possession of the suit property on behalf of Maria Angelina Lobo and further held that after her death it was Diogo Pereira who was in possession of the suit property and after him it was the Plaintiff who was in possession of the suit property which finding is under challenge on behalf of the Defendants.
9. Mr. Sudin Usgaonkar, learned Counsel on behalf of the Defendants submits that Diogo Pereira was married to Maria Angelina Lobo e Pereira and while their marriage was subsisting could not have married the said Serafina and at the most the Plaintiff might have been the illegitimate son of Diogo Pereira and Serafina and even if he was the illegitimate son he could not have succeeded to the property left behind of the said Diogo Pereira and Maria Angelina Lobo e Pereira.
10. The Plaintiff produced his own Baptism Certificate and Burial Certificate of the said Diogo Pereira. The Baptism Certificate shows that the Plaintiff was born to Diogo Pereira and Mrs. Serafina on 28-6-1957. The Burial Certificate refers to Diogo Pereira as the father of the Plaintiff. These are authentic documents produced by the Plaintiff without any objection from the Defendants and therefore it certainly could be concluded on basis of the same that the Plaintiff was an illegitimate child of Diogo Pereira.
11. On the other hand, Mr. M. B. Da Costa, learned Senior Counsel on behalf of the Plaintiff submits that admittedly the said Diogo Pereira and Maria Angelina Lobo e Pereira had no descendants nor ascendants and the Plaintiff being their only illegitimate child was entitled to succeed by operation of law and in this context, learned Senior Counsel has placed reliance on a decision of the Apex Court in the case of Luis Caetano Viegas v. Estreline Mariana R. M. A. Da' Costa and Ors. : [2002]3SCR849 .
12. Article 1989 of the Civil Code, 1867 provides that:The illegitimate children and their descendants being legitimated by recognition or legally recognized, succeed interstate not only to their parents, but also to other ascendants.
13. Was the Plaintiff legitimated by recognition or legally recognized? Could a bare Baptism Certificate or Burial Certificate be taken as sufficient proof of such recognition? Admittedly, the Plaintiff himself did not step in the witness box, at least to say that during the life time of the said Diogo Pereira he had recognized him as his son or whether he resided with him and people considered him as such.
14. The facts of the case of Luis Caetano Viegas v. Estreline Mariana R. M. A. Da'Costa and others(supra) were quite different from the facts of this case. In that case, Rosa Fonseca had given birth to an illegitimate daughter almost seven years after the death of her husband Antonio D'Costa and on 21-2-1903 the baby girl was baptized and named Maria Da Graca Albertina Luiza Fonseca and the date and time of her birth were recorded in the Parochial Book of Records of Baptism of the Taleigao Church. The names of the maternal grandparents were mentioned and so also the name of the godparents who had signed the register respectively. Subsequently, the said daughter Maria Fonseca married Camilo Viegas in the year 1935 and the appellant therein was born of the said wedlock. The marriage certificate dated 4-5-1933 had stated that Maria Fonseca was an illegitimate child and had only mentioned the name of the mother. In 1952, Rosa Fonseca, the grandmother and in 1967, the mother died. The Baptism Certificate had followed registration of Birth Certificate. In the aforesaid background and after referring to the text of the Baptism Certificate, the Hon'ble Supreme Court came to the conclusion that the baptism record was real and checked before the godparents and the same has been signed by the Parson along with them. The Hon'ble Supreme Court further observed that if the birth certificate is a true reflection of the baptism record and it contains the fact that it was read and checked before the godparents, the same need not be discarded and it must be held that the same was made in the presence of both godparents. Learned Senior Counsel contends that in this case too the baptism certificate was prepared in the presence of godparents and same principles must be applied in the case at hand. I am afraid that cannot be done in this case. In that case the record was made in the presence of illegitimate mother and godparents and that certainly could be taken as recognition that Maria Da Graca was her daughter. However, it is nobody's case that Diogo Pereira was present when the Plaintiff was baptized at St. Michael's Church, Mahim, Bombay. No evidence has been led by the Plaintiff on that aspect. In fact, one does not even know why if Diogo Pereira lived and died within the parish at St. Blaise at Andheri, the Plaintiff was baptized at St. Michael's Church, Mahim, Bombay. The Burial Certificate was prepared after the death of the said Diogo Pereira. The said Baptism Certificate or a Burial Certificate could not by themselves, in the absence of any evidence being led by the Plaintiff, be taken as recognition that the Plaintiff was illegitimate son of Diogo Pereira. It is quite possible for any woman who is not so virtuous to give the name of any man with whom she had relations, as a father of a child and that certainly would not lead to a conclusion that because the name is found on some certificate, the child was legitimated by recognition. It is well said that maternity is a fact and paternity is a surmise. In the circumstances of the case, and, in the absence of any evidence that the Plaintiff was recognized as the legitimate son of the said Diogo Pereira, the Plaintiff could not have succeeded to the estate left by the said Diogo Pereira. In other words, the Plaintiff is not entitled to claim title to the suit property in the light of Article 1989 of the Civil Code, 1867. It is also not the case of the Plaintiff that Article 3 of Decree No. 2 dated 25-12-1910 was complied at any time in his case, as noted by the learned first Appellate Court.
15. As regards possession, the learned trial Court has not rendered any finding. The learned first Appellate Court in para 39 of the Judgment came to the specific conclusion that the Defendants were in possession of the suit property but at the same time observed that after the death of Maria Angelina Lobo it was her husband Diogo Pereira who was in possession of the suit property and after his death the property was presumed to have been in possession of the Plaintiff.
16. The case of the Plaintiff is that when Maria Angelina Lobo went to Bombay she requested Defendant No. 1 to continue as the care taker of the house, and instructed Joao Jose Fernandes to do the plucking, and attend to the care taker and upon the death of Diogo Pereira, the Plaintiff instructed the said Joao Jose Fernandes to attend to the care taker. Admittedly, the care taker was no other then the Defendant No. 1, who as per evidence on record was residing in the suit house for over 35 years. The Plaintiff chose not to examine himself but examined his attorney and the said attorney, has stated contrary to the case pleaded, that the Plaintiff used to come down to Goa two to three times a year. The said Joao Jose Fernandes was examined as PW3 and in his evidence he has stated that when Maria Angelina Lobo e Pereira went to Bombay she had requested Defendant No. 1 Francis Xavier Lobo to take care of the house and had asked him to attend to any requests which the said Francis Xavier would make. He also stated that after her death, her husband Diogo Pereira, requested him to continue looking after the suit property and to do the plucking and after his death the Plaintiff requested him to do the same. However, in cross-examination he stated that he had studied upto IInd Standard. He further stated that he was a driver by profession and he was not a businessman and when it was pointed out to him that in his affidavit he had stated that he was a retired person he admitted that it was falsely stated. Thereafter, he gave the survey numbers of the suit plots but in further cross- examination admitted that he gave the said numbers on being tutored by the Advocate of the Plaintiff. It was also brought out in his cross-examination, that about 20 years back he had left Terakhol and was settled at Poraskhadem and the distance between both the said villages was 25 kms. and he had further stated that for about 8 years he had stopped plucking the trees of the suit property. If Joao Jose Fernandes had to be given any credibility, it was necessary for him to explain as to what he did with the plucked coconuts for almost twenty years. Did he give any accounts of the plucked coconuts to the Plaintiff at any time? There is no whisper in that regard. The evidence of Joao Jose Fernandes does not at all inspire confidence. He was a person who claimed to be a driver by profession and was residing at a distance of about 25 kms. away and therefore that he did any plucking at the request of either Diogo Pereira or after his death at the request of the Plaintiff could not have at all been accepted. It is obvious that he was tutored and brought only to give a link to the possession of the Plaintiff, first after the death of Maria Angelina Lobo e Pereira and thereafter after the death of Diogo Pereira. In any event as the very pleading of the Plaintiff goes, he was instructed to attend to the care taker and if at all he did anything or even plucked the coconut trees he could have done the same only at the request of the said care taker, namely Defendant No. 1. The case could not have been decided based on his evidence which ought to have been rejected. Defendant No. 1 was occupying the house for over 35 years. If Defendant No1. was residing in one of the properties as a care taker, it is difficult to accept that anybody else would be asked to do the plucking of the property. The evidence shows, and that is the finding rendered by the first Appellate Court also, that it is Defendant No. 1 who was in possession of the suit property after the death of Diogo Pereira. Learned Senior Counsel contends that at the most Defendant No. 1 might have been in custody of the suit property as a care taker but certainly he would not be entitled to continue with the said custody even after the death of the said Diogo Pereira till such time a person having title to the suit properties came to take over the possession from him. Plaintiff's case that after Maria Angelina Lobo Pereira went to Bombay, the said Joao Jose Fernandes did any pluckings of the suit property could not have been accepted. On the very case of the Plaintiff, the Defendant No. 1 was in actual possession of the suit property as a care taker and he could be dispossessed or the said possession could have been recovered from him only by a person who had a previous possession or a better title than him. Here, both the parties had no title to the suit property. The Defendant No. 1 had continued to remain in actual possession of the suit property and the suit house first after the death of Maria Angelina Lobo and thereafter after the death of her husband Diogo Pereira. Plaintiff could have succeeded in his claim to recover the possession from the Defendants only in case he had a better title than the Plaintiff or prior possession. He had none and therefore the Plaintiff was not entitled to recover the possession of the suit properties from the Defendants.
17. In this view of the matter, the substantial question framed has got to be answered in the affirmative and in favour of the Defendants. 18. Consequently, the Second Appeal succeeds and the order of the learned first Appellate Court is hereby set aside and that of the trial Court is maintained. Considering the facts, there shall be no order as to costs.