G.D. Kamat, J.
1. This Letters Patent Appeal is directed against the judgment and appellate decree dated 9th March, 1990, made in First Civil Appeal No.100/88, by a learned Single Judge of this Court. The First Civil Appeal No.100/88 had arisen out of a judgment and decree dated 4th August, 1988, made in Regular Civil Suit No.111/68-c by the Civil Court at Margao.
2. To appreciate the controversy between the parties and in the appeal reference is needed to the background of the litigation. Antonio Joaquim Mota was the owner of a property bearing matriz No.512 consisting of a house. Upon his death, inventory proceedings were launched and in the final order that emerged in those proceedings, his widow Ema Elvira Issura Rangel was allotted 5/8ths share and his sons Filomeno and Victor and daughter Maria Elsa do perpetuo Socorro Mota were allotted 1/8th share each. The third son Jose Mario Bailon Mota, for short `Jose Mari, was left out insofar as this house property is concerned. During her life-time, Ema Elvira Issura Rangel made a gift deed in favour of Jose Mario, gifting her disposable quota corresponding to 50% of her share. Upon the death of Ema in the year 1955, in the inventory proceedings, the daughter Maria Elsa, took in auction 5/8ths share being the highest bidder in respect of the said property. Regard being had to the highest bid of Rs.40,000/- in the final chart drawn up by the inventory Court, Maria Elsa had to pay a sum of Rs.23,333.91 p. to Jose Mario. The result was Maria Elsa became the owner of 6/8ths in respect of the house property and the remaining 1/8th share was left with the brothers Victor and Filomeno.
3. Sometime in the year 1959, Jose Mario created a lease in favour of the original first defendant Sarvotham Pai Cano in respect of a part of the house, upon consideration of rent of Rs.70/- per month. It appears that Victor and Filomeno had been out of India during all this time and Maria Elsa was married and had been residing in Calcutta. Sometime in the year 1962, when proceedings were taken in respect of the partition of the estate of Ema, aforementioned Jose Mario was appointed as `Cabeca de Casal' (administrator). As mentioned earlier, the proceedings in inventory culminated by final order on 7th June, 1965.
4. In June, 1968, Maria Elsa, presently respondent No.1 and her husband Clement, respondent No.2, instituted Regular Civil Suit No.111/68 against Jose Mario and his tenant Sarvotham for a declaration in the first place that the lease created by Jose Mario in favour of Sarvotham is null and void and that way not binding upon her, with a further direction to deliver vacant possession of the part let out to Sarvotham with a further prayer to direct Jose Mario to pay rents unduly collected from June 1965 onwards, until the possession is handed over to him.
5. The suit was contested by both Jose Mario and Sarvotham. In a nut-shell, the defence was that the suit is not maintainable and also misconceived, for the reasons that Maria Elsa is not the legitimate owner and possessor of the same and in any case she is not entitled to the reliefs because she has failed to pay the owelty money corresponding to Rs.23,333.91p. as directed by the final order in the inventory proceedings, that upon failure to pay the owelty money Jose Mario is entitled to retain the possession. It was also the case of tenant Sarvotham that Maria Elsa cannot recover possession from him as the lease had been validly created by Jose Mario in his favour.
6. Based upon the pleadings and issues raised, the trial Court on 4th August, 1988, decreed the suit in favour of Maria Elsa. The trial Court decree held that though the lease created by Jose Mario in favour of Sarvotham was valid, but then, as by the order of 7th June, 1965, once the inventory proceedings in respect of the estate of Ema culminated and Maria Elsa took 5/8ths share in the auction and despite her failure to pay the owelty money to Jose Mario, the lease in favour of defendant No. 2 Sarvotham stood terminated three months after the receipt of the Summons in the suit. The claim for mesne profits was also decreed.
7. During the pendency of the suit original defendant No.2 Sarvotham died, with the result his widow and heirs came on record, who are presently appellants Nos. 1 to 11.
8. Being aggrieved by the judgment and decree of the trial Court, appeal was instituted in this Court being First Civil Appeal No.100/88, by which time it appears that Jose Mario expired, with the result his daughter and son-in-law came on record, who are presently appellants Nos. 12 and 13 in this appeal.
9. This First Civil Appeal was disposed of by a learned Single Judge on 9th March, 1990. While disposing the appeal, the learned Single Judge negatived several grievances made in the appeal. The learned Single Judge however held that Jose Mario in the year 1959 could not have created lease in favour of the deceased tenant Sarvotham, as he was not a major share-holder of the property. The lease was therefore held to be null and void. The other contention taken that upon failure to pay the owelty money by Maria Elsa, she is not entitled to claim her rights pursuant to the order dated 6th June, 1965, in inventory proceedings of Ema, would not come in the way of her obtaining a decree in the suit.
10. Upon dismissal of the appeal, the appellants came to this Court in Letters Patent jurisdiction. The first of the submissions raised on behalf of the appellants is that the respondents/original plaintiffs, Maria Elsa and her husband, had not laid foundation in the pleadings that the lease is void because Jose Mario was not the major share-holder qua the house property. Mr. Lotlikar urged that in the absence of such a foundation it was not open to the Appellate Judge to have ruled that the lease created in the year 1959 by Jose Mario in favour of the deceased Sarvotham, the predecessor-in-title of appellants Nos. 1 to 11, is not a valid lease.
This submission, in our judgment, is devoid of substance and presently we will point out that in the plaint instituted clear averments are made in paragraphs 6 and 7 thereof which unambiguously suggest that a foundation was laid that Jose Mario had no authority to create a lease in the year 1959 because he was not the major share-holder of the property. For that matter, paragraphs 6 and 7 read thus:
'6. At the time he gave on lease the said Jose Mario was neither the owner of the property, nor the co-owner of the major part of the same property.
7. Thus the lease is null in view of Article 16, No.1, of Decree No. 43,525, be it in terms of Article 1598, Portuguese Civil Code.'
11. It is not necessary to dilate on this point and suffice to mention that in the year 1959 and until 1st October, 1969, the leases were governed under Decree No. 43,525. Article 16 of that decree in terms lays down:
'Art. 16.:---The lease made by one of the co-owners of undivided property is valid if he is the major co-owner or when the remaining co-owners forming the major part give their consent in any manner.'
A bare reading of this provision of Article 16 clearly suggests that in the first place a major co-owner of an undivided property is entitled to create a valid lease and if a minor share-holder wants to create a valid lease, it can only be so when the other co-sharers give their assent to such a lease.
This being the position, the first submission does not survive.
12. Insofar as the second submission is concerned, it was contended should this Court hold that a foundation had been laid that the lease is void for having been created not by a major share-holder, even then the lease was valid because Jose Mario was entitled to create a lease. Mr. Lotlikar now says in support of this submission that mother Ema had created a gift deed in favour of Jose Mario. Jose Mario was in possession of the property and after the death of the mother was administering the same. He created the lease in favour of the tenant in the year 1959 and no other co-sharer took any objection. He therefore urged relying upon Article 16 of Decree No. 43,525, that the assent or consent by the other co-sharers can be inferred and further that the assent can be direct or indirect. He says that nobody took any objection for the continuance of the lease until the suit was instituted in the year 1968 by Maria Elsa. He further pointed out that on the assumption the lease was created in the year 1969 or thereafter, Maria Elsa has never become the absolute owner of the house property, for the remaining brothers Victor and Filomeno have still 1/8th share intact. He therefore has considerable quarrel that the First Appellate Court interferred with the findings of the trial Court in holding that the lease created in 1959 was void.
It is not necessary to detain this Court much longer and in our view, a few observations will suffice to take care of this submission. No doubt the lease was indeed created in the year 1959 and Jose Mario was undoubtedly in possession of the property after the death of his mother although in inventory proceedings instituted upon the death of his father he did not get any share in respect of this house property. The gift deed executed in his favour by his mother Ema was in respect of her disposable quota which corresponds to 50% of her estate. It was indeed not specifically in respect of the suit house. The inventory proceedings in respect of Ema were started sometime in the year 1962 and in those proceedings Jose Mario was appointed as the administrator. It is common ground that as administrator Jose Mario was entitled to create lease. The proceedings of inventory culminated as mentioned earlier, on 7th June, 1965 and, as we have seen, Maria Elsa became the auction purchaser of 5/8ths share that her mother Ema had in the property. Once she became the major share-holder of the property she instituted a suit sometime in June, 1968. It is therefore difficult to accept that Maria Elsa had ever given consent or assent to the creation of the lease in favour of the tenant Sarvotham. However, if perhaps the inventory proceedings had not intervened by silence of Maria Elsa, perhaps an inference could have been drawn that she had acquiesced in the creation of the lease by her brother. Admittedly, Victor and Filomeno were out of India all the time. Therefore, in the absence of specific plea by Jose Mario, it is difficult to accept that they had assented to the creation of lease. There is another way of looking at it. Creation of a valid lease can only be by a major share-holder. The exception is that a minor share-holder can do so provided the other co-sharers or co-owners having majority of share give their assent in any manner. Though it is true that it may not be in writing, but then the onus would be on the minor share-holder who created the lease to show that there had been assent by the other share-holders having the majority shares. There is nothing to show that Jose Mario has established in answer that directly or indirectly there was assent in creating a valid licence in favour of Sarvotham in the year 1959.
13. It is therefore not possible for the appellants to invoke the second part of Article 16 of Decree Law No. 43,525 that valid lease was created or that Jose Mario was entitled to create such a lease. Therefore, the second submission also goes overboard.
14. Coming to the third submission, Mr. Lotlikar now says that if a lease is created by a share-holder, no matter how much share he holds in the property, but afterwards the creation becomes a lease by an administrator, such a lease must be held to be valid and the same must continue unless legally terminated in accordance with law.
As a fact, we have seen that the lease was created in the year 1959 and Jose Mario was appointed as administrator in the year 1962 and the proceedings culminated by the final order of 7th June, 1965. It is possible that after the expiry of the first lease created, the lease was continued by the administrator, but the proposition that a lease created by an administrator shall continue after wards appears to be obnoxious to Portuguese Law. This also appears to be the position accepted under our jurisprudence, that a lease created by a receiver must terminate, with the termination of the receivership, or with the termination of the proceedings itself. A similar point had come up for consideration before one of us, (Kamat, J.) and since this point was being actively considered by the present Bench, the Single Judge's matter was deferred. Mr. M.S. Usgaokar, learned Counsel appearing in that matter sought leave of this Court to address the Court only on this point. He has relied upon two decisions, one of the High Court at Lisbon and the other of the Supreme Court of Justice of Portugal and on the subject vis-a-vis the creation of the lease by the `cabeca de casal'. The first decision is published in the Gazette of the Law Ministry 1947 Vol.2 pg.229. It was held that the `cabeca de casal' is the legal representative of the undivided estate and its manager. The Management stands in force upto the end of the partition of the estate and inasmuch as the final decree of partition conveys properties to the co-heirs, the properties must be given free of any burden or encumbrance so that all the contracts of `cabeca de casal' cannot project their effects beyond the period of management. Similar is the view taken by the Supreme Court of Justice of Portugal in another case published in Gazette of Law Ministry 1948 Vol.5 pg.242.
Mr. Usgaokar with a view to assist the Court placed reliance on some observations of the Supreme Court in the decision of Palayi Kizhakkekara Mathaiy's Son K.M. Mathew & another v. Pothiyill Mommutty's Son Hamsa Haji & others, reported in : [1987]3SCR109 . A few more authorities relied upon by him can be looked into. The Madras High Court in its Full Bench decision of Arumugha Gounder v. Ardhanari Mudaliar & others, reported in : AIR1975Mad231 , lays down thus:
'So then the act of the receiver in letting out the land in the suit is an act of the Court itself and it is done on behalf of the Court, the whole purpose of the Court taking possession through the receiver appointed by it is to protect the property for the benefit of the ultimate successful party. If that is the essence and purpose of appointment of a receiver as we hold it is, it will be difficult to agree that by a literal application of the Tamil Nadu Cultivating Tenants Protection Act. it could be put beyond the reach of the Court to give relief to the successful party entitled to possession.'
This Court in a recent judgment in Aboobekar Abdulrehman & Co. v. Shreeji Properties, reported in : AIR1993Bom265 , held thus:
'After going through the various decisions cited before me, the principle of law that emerges may be stated thus: During the time the property is in custody/charge of the Court - in the hands of the receiver on behalf of the Court - no rights can be created in the property which would defeat the ends of justice and incapacitate the Court from giving relief to the one who is entitled to it according to the decree or final order of the Court. This principle of law has been clearly enunciated in the case of Arumugha Gounder v. Ardhanari Mudaliar & others, reported in : AIR1975Mad231 .'
In Keshav Vithal Mhatre v. Arvind Ranchhod Parekh & another, reported in : AIR1974Bom94 , the Court held:
'Where the lease was granted during the management, the lease must come to an end with the termination of management. The tenant continues as a tenant only during the management of the estate. Thereafter if he remains on the land, he is cultivating it only as a trespasser.'
In Chondru Gomes v. Mamlatdar, Tiswadi Taluka & others, reported in 1983 Mh. L.J. 972, it was held:
'If the person who claims to be a deemed tenant proves that he has been lawfully cultivating the land of another person between 1-7-1962 and 8-2-1965, he would be deemed to be a tenant, irrespective of the fact whether there is contract of lease or not. It must be remembered that a person who is claiming, has to prove that he has been cultivating the land lawfully. The word 'lawfully' occuring in this section has to be given its due weight. In other words, any person who is unlawfully cultivating land of another during the abovesaid period, would not be entitled to be termed as a deemed tenant. Hence lawful cultivation is sine-qua-non for being a deemed tenant.'
Mr. Usgaokar however, now mentions that in a very recent decision in Krishna Kumar Khemka v. Grindlays Bank P.L.C. & others, reported in : [1990]2SCR961 upon viewing the Full Bench decision of the Madras High Court in : AIR1975Mad231 (supra cited), the Supreme Court has made an observation to this effect:
'The Full Bench however took the view that the receiver appointed by the Court acts as an officer of the Court and he cannot create a lease which takes the pending matter beyond the purview of the Court and anyone who gets possession through such an act could only do so subject to the directions and orders of the Court. In our view the principle laid down by the Full Bench does not apply to the facts in the instant case at lease to the case of Grindlays as in our view no new tenancy is created in their favour. Even by the time the receiver was appointed the Grindlays were the tenants in respect of the four flats and they continued to be so. It is only later after due correspondence that they made a partial surrender and those two flats were let out to Tatas after due negotiations in respect of the rent. Grindlays' affidavit shows that they have also sent rent by way of Bank pay orders and they have been received by the landlord. It is only for the first time on July 26, 1988 that the tenant was informed to stop the payment of rent. Further the receiver has not acted in any manner affecting the title.'
Mr. Usgaokar though he is not concerned with the present appeal, says that the observation of the Supreme Court for whatever worth is that if the lease had been created earlier, the Supreme Court has approved its continuance even thereafter. This observation is in a different context.
15. Coming back to the present case, it must be seen that the creation of lease by Jose Mario in the year 1959 was hit by Article 16 of the Decree Law No. 43,525 which governed leases in this territory. Once we hold that Jose Mario could not have created a valid lease, then, in our view, merely because by fortuitous circumstances Jose Mario became the administrator in the inventory proceedings instituted in the year 1962 does not make the lease valid. Even otherwise, there is really nothing on record that as administrator he executed any rent note. We are, therefore, perforce to reject this contention also.
16. We now come to the fourth submission. Mr. Lotlikar says that assuming that the lease came to an end upon culmination of the inventory proceedings inasmuch as the Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968, for Short the 'Rent Act' was in force in the territory and the therefore the lessee needs to be protected under the newly enacted Rent Act.
To appreciate this Contention, it may be noted that the Rent Act was enforced as from 1st October, 1969, more than one year after the institution of the suit. Section 59 of the Rent Act reads thus:
'S. 59. Repeals and Savings -
(1) as from the date on which this Act is brought into force in any local area, the provisions of Decree No. 43,525, dated the 7th March, 1961, and Legislative Diploma No. 1409, dated the 14th February, 1952 and the corresponding provisions of any other law for the time being in force shall stand repealed in that area.
(2) Notwithstanding the repeal of the laws by sub-section (1), all suits and other proceedings under a repealed law pending at the commencement of this Act before any Court or authority shall be continued and disposed of in accordance with the provisions of the repealed law as if that law had continued in force and this Act had not been passed:
Provided that in any such suit or proceeding for the fixation of fair rent or for the eviction of a tenant from any building, the Court or other authority shall have regard to the provisions of this Act;
Provided further that the provisions for appeal under the repealed law shall continue in force in respect of suits and proceedings disposed of thereunder.'
Mr. Lotlikar says that the Rent Act of 1960 restricts the ground of eviction as a measure of beneficial legislation to protect tenants and, therefore, according to him, though eviction proceedings are required to be governed under the repealed Act, the proviso to section 59 in clear terms states that the Court trying the suit shall have due regard to the provisions of the Rent Act.
17. Section 59 deals with repeals and savings. It is clear that the provisions of Decree Law No. 43525 stands repealed no sooner the Rent Act is brought into force in any local area. Sub-section (2) clearly says that notwithstanding the repeal of the laws, all suits and other proceedings under the repealed law, pending at the commencement of the Rent Act before any Court shall be continued and disposed of in accordance with the provisions of the repealed law, as if that law had continued in force and the Rent Act had not been passed. It is indeed true that the proviso provides that regard to the provisions of the Rent Act shall be had by the Court or authority in any suit or proceedings, but, however, restricted the same to two items only, namely: (1) fixation of fair; and (2) eviction of a tenant. In other words, the proceeding instituted under the repealed law shall be governed by the provisions of the repealed law and insofar as matters of fixation of fair rent and eviction of a tenant from any building is concerned, regard should be had to the provisions of the newly extended Act. Mr. Lotlikar now says that a deceased tenant and thereafter his heirs have been paying rent in the hands of Jose Mario and after his death, to his daughter, present respondent No. 12. Therefore, appellants No.1 to 11 are tenants within the meaning of the Rent Act and Jose Mario was the landlord within the meaning of section 2(j) of the Rent Act. It is true that by virtue of the definition 'landlord' as contained in section 2(j) of the Rent Act, a person who for the time being is receiving rent is the landlord in relation to the tenant. Insofar as section 2(p) definition of 'tenant' is concerned, it means, 'any person by whom or on whose account or behalf the rent of any building is, or but for special contract would be, payable and includes.........'. In our judgment, what is pointed out by Mr. Lotlikar cannot be made available to the appellants. The proviso to section 59 clearly shows that in the matter of fixation of rent and in the matter of eviction of the tenant from a building, regard must be had to the provisions of the Rent Act, but the definition of tenant vide section 2(p) of the Rent Act cannot be extended to deceased Sarvotham or to his heirs because they are claiming the right as tenants under the Decree Law No. 43, 525 either at the time the lease was created in 1959 even on the assumption that it was created subsequently during the time Jose Mario was the administrator. The Rent Act as we mentioned earlier, was extended as from 1st October, 1969 and much after the present suit was filed. We have to therefore clearly hold that the benefit of the proviso to section 59 cannot be extended to the appellants, because they were governed by the provisions of Decree No. 43,525 and the definition in section 2(p) of the Rent Act cannot be extended in their favour.
Insofar as the requirement of regard being had to the provisions in the matter of eviction of a tenant from a building, the learned Single Judge in his judgment has clearly rendered a finding that the appellants did not make out a case of any hardship against their eviction as had been directed. There is no evidence brought in by the appellants. We say so on the assumption that some regard will have to be had in the matter of directing eviction even when proceedings were instituted under Decree No. 43,525 and pending when the Rent Act had come into force. The fourth submission also does not survive.
18. Mr. Lotlikar lastly contended that Jose Mario and upon his death his heirs and legal representatives, namely daughter and son-in-law, appellants No. 12 and 13, are entitled to retain the house since, admittedly, owelty money has not been paid by Maria Elsa until this date and, in any case, Maria Elsa is not entitled to obtain the possession until the owelty amount is paid. For that matter, this was a point urged before the learned Single Judge and was negatived by him. Since this point is strenuously canvassed before us, we will deal with the same. It is an admitted position that owelty amount of Rs. 23,333.91 p. as directed by the final order on 7th June, 1965, in the inventory proceedings in respect of the estate of Ema has not been paid which was due and payable to Jose Mario. It is common ground that after the preparation of the Chart, notice was given to Maria Elsa calling upon her to pay the same amount and she failed to pay the same. It appears that some execution proceedings were filed by Jose Mario to recover that amount, but the proceedings were declared abated because no action was taken for a period of five years. It is again common ground that under the Portuguese system of law if no action is taken in any proceedings and if the same are kept dormant for a period of five years, a Judge is entitled to make an order declaring the proceedings as abated.
19. Indeed an attempt has been made by Mr. Lotlikar to contend that leases created by a mortgagee in possession or by receivers are held binding and valid after redemption and tenants continued as lawful tenants. He therefore, urged that having regard to the provisions of the Rent Act the lease created by Jose Mario originally but continued after he became the administrator once the inventory proceedings were initiated, ought to be held as a valid lease and therefore, present appellants No. 1 to 11 as legal representatives of the original tenant Sarvotham cannot now be evicted. He relied upon some authorities.
20. In the decision of Dahya Lala and others v. Rasul Mahomed Abdul Rahim and others, reported in : [1963]3SCR1 , the question arose for consideration whether the lease created by a mortgagee in possession by inducting a tenant, such tenant is entitled to the protection upon redemption under the Bombay Tenancy and Agricultural Lands Act, 1948. The Supreme Court answered the question in favour of such inducted tenant by mortgagee in possession on the grounds that the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, are a social reform oriented legislation and further that definition of 'tenant' also includes a deemed tenant.
In the decision of Prabhu v. Ramdeo and others, reported in : [1966]3SCR676 , a similar question arose whether tenant inducted by a usufrauctary mortgagee was entitled to rights of Khatedar tenants by virtue of section 15 of the Rajasthan Tenancy Act. The Supreme Court held that the mortgagor is not entitled to eject such a tenant upon redemption of the mortgage.
Mr. Lotlikar now relied upon the decision of Smt. Rukhamanbai v. Shivram and others, reported in : [1982]1SCR607 , to contend that when a right of a statutory tenant intervenes such a tenant cannot be evicted. The Supreme Court held that regard being had to the meaning of deemed tenant in section 4 of the Bombay Tenancy and Agricultural Lands Act, 1948, a person inducted as lessee by a limited owner having life estate in land is protected, for he becomes a deemed tenant within the meaning of section 4.
21. The ratio that can be curled out from all the aforementioned authorities turns upon the definition of a tenant which includes the fiction of deeming tenancy.
22. Mr. Lotlikar's contention is that section 2(p) of the Rent Act which defines who is a tenant has to be imported in the present case. Admittedly, the lease in favour of original deceased tenant Sarvotham was made in 1959 under Decree Law No. 43,525 and he continued to be the tenant of Jose Mario at all times. The suit for eviction was filed in June, 1968 and the Rent Act was admittedly brought into force on 1st October, 1969, when the suit was pending. Though regard is required to be had to the provisions of the Rent Act in the matter of eviction and fixation of fair rent under proviso to section 59 we are afraid that the original tenant Sarvotham and now his heirs cannot get the benefit of the definition of tenant under the provisions of the Rent Act. We are therefore clear that on the facts of this case it is not possible to extend the benefit of definition of tenant under the Rent Act to the appellants.
23. Some propositions under Portuguese Law have been canvassed on behalf of the parties to view as to how the matter of payment and/or non-payment of owelty stands and its effects and consequences.
Mr. Reis, learned Counsel appearing for the respondents, says that under Article 1417 of the Civil Procedure Code (Portuguese) when owelty money is not paid, interest accrued thereon from the date of final judgment of partition until payment is liable to be paid and the creditor so-called, namely the person who is entitled to receive the owelty money may register a hypothecation over the property or properties adjudicated upon the debtor, namely the person who is liable to pay the owelty. Mr. Reis says that non-payment cannot come in the way of suit being decreed.
A look at the provision of Article 1417 clearly suggests that for failure to pay owelty money the creditor is entitled to legal interest from the date of judgment until recovery and is further entitled to register a sort of mortgage in respect of the property when demand is not made. It is therefore clear that failure to pay money does not bring about the reversion of the property. But, in a case where the demand is made by the person who is entitled to receive owelty and if the same is not paid within three days of the notice of demand, the allotment becomes ineffective and the property be put to re-auction and at that re-auction the defaulting party is not entitled to participate and offer any bid. Nothing is brought on record to suggest that any fresh auction was initiated by Jose Mario, with the result, there cannot be reversion of the property from Maria Elsa and the only remedy for Jose Mario is to recover owelty together with interest. Mr. Reis however, says that under the Portuguese law the recovery of interest is restricted to only a period of five years and not for the entire period. We will come to this aspect of the matter a little later, after we view what was contended on behalf of the appellants.
24. Mr. Lotlikar says, relying upon Article 1574 of the Civil Code (Portuguese), that the vendor is not bound to deliver a thing sold unless the price is paid, subject however, to the agreement to the contrary. Mr. Lotlikar now says that the auction held in inventory proceedings amounts to a sale and since Maria Elsa took the property in auction and as long as owelty was determined in a fixed amount upon her failure, Jose Mario as vendor is entitled to retain the property and there is no question of delivering the same until the owelty is paid.
25. We are unable to accept this submission of Mr. Lotlikar, for Article 1574 is found in Chapter VIII of the Civil Code (Portuguese) which deals with contracts of purchase and sales in general. Provisions relating to inventory proceedings in the Code are found elsewhere in a different Chapter. Strictly speaking, the partition of estate is between the legal heirs and other interested persons like donees, legatees, etc. When the properties cannot be partitioned by metes and bounds auctions are held and they are restricted to parties, namely legal heirs and other interested parties. Only those parties are allowed to bid and no outsider is permitted to participate in those proceedings. This being the position, we are afraid that Chapter VIII of the Civil Code which is a general Chapter relating to contracts of purchase and sale cannot be applied to Court auctions in inventory proceedings.
There is another way of looking at it. We have already highlighted earlier the fact of non-payment of owelty money by Maria Elsa. The right of a party is if the demand is made for payment of owelty and the same is not paid within three days, the property can be re-auctioned, in which case the defaulting party is debarred from participating in the fresh auction. When the demand is not made there is no reversion of the property and the creditor party is entitled to only interest or get a mortgage registered thereon. This being the position, the present case must come within the latter part, that is , Jose Mario and now his heirs, would be only entitled to recover owelty alongwith interest for different reasons, but it is not possible to accept the contention that Jose Mario or his heirs are entitled to retain the property in view of the provisions of Article 1574, which is not applicable to inventory proceedings.
26. We have also seen the provisions relating to receiver under the Portuguese laws. It must be made clear that powers of receiver in suits, and a `cabeca de casal' (administrator) in inventory proceedings, are similar under that law, but these two institutions are different. For example, what is a receiver under our system of laws, is 'depositaries' , under the Portuguese law, but in inventory proceedings the person administering the estate of the dead person is called `cabeca de casal'. Therefore, even if it is held for the sake of argument , that receiver can create a valid lease to go beyond termination of the receivership, there is no analogy that `cabeca de casal' can do so as to jeopardize the right of a person to whom such a property is to be allotted.
27. The position viz. owelty, was viewed by the Supreme Court in the decision of T.S. Swaminatha Odayar v. Official Receiver of West Tanjore, reported in : [1957]1SCR775 .
The Supreme Court held that while effecting a partition of joint family properties, it would not be possible to divide the properties by metes and bounds there being of necessity an allocation of properties of unequal values among the members of a joint family. Properties of a larger value might go to one and properties of a smaller value to another member and therefore, there would have to be adjustment of the values by providing for the payment by the former to the latter by way of equalisation of their shares. This position has been recognized in law and it is called 'owelty or equality of position'.
The Court further held that once an owelty is awarded to a member on partition for equalisation, such a provision of owelty ordinarily creates a lien or a charge on the land taken under the partition. A lien or a charge may be created in express terms by the provisions of the partition decree itself. If, however, no such charge is created in express terms, even so the lien may exist because it is implied by the very terms of the partition in the absence of an express provision in that behalf.
28. Mr. Lotlikar now says that there is no difference between the Portuguese and Indian jurisprudence on the subject of owelty and the consequence of non-payment.
It is true that the Supreme Court held that there would be a charge or lien in the property 2allotted subject to a payment of owelty even when there is no specific order of a Court.
29. Mr. Lotlikar now urged that Article 16 of the Civil Code (Portuguese) lays down that whenever a question arises over rights and obligations, which cannot be resolved either by the existing provision of law, or by its spirit, or by analogous cases prescribed by some other laws, the same shall be decided by the principles of natural law depending upon the circumstances of a case.
This provision is based on a principle of equity and good conscience and therefore, Mr. Lotlikar urges that this Court must hold that the house property is charged with an encumbrance and unless payment is made Jose Mario is entitled to retain the same.
Though it is true that under the two legal systems the principle of owelty is identical, yet there is nothing codified insofar as the effects of non-payment of owelty are concerned under the Indian system, unlike the Portuguese Code where the situation is different and which we have already adverted to earlier, making specific provisions. Jose Mario did not get the auction cancelled, nor got the property registered by way of a mortgage which law ordained specifically. Non-payment of owelty cannot be allowed to non-suit Maria Elsa, but the relief of obtaining possession can be made subject to a direction of payment of owelty.
30. In our view, justice of the matter requires that a direction must go to the respondents Maria Elsa and her husband to pay owelty amount and they cannot be allowed to take unfair advantage of the situation to recover possession of the house without such a payment. Jose Mario and now his heirs appellants 12 and 13, are entitled to recovery and respondents Maria Elsa and her husband are directed to pay owelty amount of Rs. 23,333.91p. in terms of the order dated 7th June, 1965 in the inventory proceedings. The provision of Article 1417 of the Portuguese Civil Procedure says that a defaulting party is liable to pay interest. Admittedly, a period of 28 years have intervened, but then Maria Elsa instituted the present suit in the year 1968 for recovery of the house and rents. We therefore find no difficulty in holding that Jose Mario and his heirs are entitled to recover owelty amount together with Simple Interest at the rate of 6% from 7th June, 1965 and, accordingly, respondent Maria Elsa is entitled to adjust the same against the decree in her favour for rents and mesne profits.
Though it was contended by Mr. Reis that interest is recoverable for a period of five years only, in our view such a limitation cannot be accepted. The suit was instituted sometime in June 1968, within three years from the date of culmination of the inventory proceedings and Jose Mario took the specific stand that unless owelty is paid no relief be given to Maria Elsa based upon which Issue No.9 had been framed in the suit. Jose Mario is therefore entitled to recover owelty with interest for a period of three years prior to the institution of this very suit. Therefore, in fitness of things, we direct the interest from 7th June, 1965. There can be no grievance from original plaintiffs, now respondents, in this appeal. Such interest comes to Rs. 39,551.13p. (6% for 28 years and 3 months), until the date on which the eviction is directed, viz. 30th September, 1993, as we propose to make such a direction, giving appellants some time to vacate the premises. The respondents therefore are liable to pay in all a sum of Rs. 62,885.04p., Rs. 23,333.91p. being owelty and Rs. 39,550/- being Simple Interest at the rate of 6% per annum. We hope that final curtain will be drawn on this litigation.
31. This appeal is accordingly disposed of by the order as follows:
Regular Civil Suit No.111/68 stands decreed as prayed for. Lease created by Jose Mario in favour of the late Sarvotham is declared invalid and the respondents are entitled to possession of the part of the house let out to Sarvotham, however, upon payment of owelty money by the respondents. The prayer for rents and mesne profits is also decreed. Appellants No. 12 and 13 are directed to pay arrears of rent for three years prior to the date of institution of the suit and mesne profits at the rate of Rs.70/- per month from the date of filing of the suit until 30th September, 1993. Upon calculation, the respondents are entitled to rents and mesne profits for a total period of 28 years and three months, inclusive of the month of September, 1993 in an amount of Rs. 23,730/-. The result is, upon deducting this amount, the appellants Nos. 12 and 13 are entitled to receive a sum of Rs. 39,155.04p. as on 30th September, 1993. Before obtaining possession, they are directed to pay to the appellants Nos. 12 and 13 or deposit in the trial Court, the said sum of Rs. 39,155.04p. and obtain possession of the premises on 1st October, 1993.
To the extent indicated, the two decrees of the Courts below under challenge shall stand modified. Order accordingly. Parties are left to bear their own costs.