BENEDITO GONSALVES (SINCE DECEASED) THR LRS AND ANRversusCABIDO DA SE PREMACIAL REP. BY POA PEDRO CONEICAO MARIO GONSALVES AND 2 ORS

2026:BHC-GOA:1629
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                         IN THE HIGH COURT OF BOMBAY AT GOA
                              WRIT PETITION NO.703 OF 2023

               1.    Shri Benedito Gonsalves, (Since Deceased)
                     Aged 84 years,
                     son of late Manuel Gonsalves,

                     through his Legal Heirs,
                     1a) Shri. Mario Gonsalves,
                           Aged 42 years and his wife;
                     1b) Mrs. Lyn Vaz,
                           Aged about 36 years;
                     1c) Mr. Melvin Gonsalves,
                           Aged about 40 years and his wife;
                     1d) Mrs. Chetana D’Souza,
                           Aged about 35 years,

               2.    Smt. Cristina Mascarenhas,
                     aged 73 years, housewife,
                     All residents of House No: 148,
                     Vitolamoddi, Amona, Quepem-Goa…                 Petitioners

                                 Versus

               1.    Cabido da Se Premacial or Cathedral Chapter
                     da Archdiocese of Goa, also known as Deao,
                     represented by Special Power of Attorney,
                     Pedro Conceicao Mario Gonsalves,
                     residing at House No: 146, Vitolamoddi,
                     Amona, Quepem Goa.

               2.    Shri. Pedro Conceicao Mario Gonsalves,
                     aged about 65 years, married, seaman,
                     and his wife,

               3.    Smt. Rumaldina Dourado,
                     housewife, major,
                     both residents of House No: 146,
                     Vitolamoddi, Amona,
                     Quepem…                        Respondents/ Original Defendants
                                                  …
               Mr. Vilas Thali with Mr. Rasik Borkar, Advocate for Petitioners.
               Mr. Rushikesh Sahakari, Advocate for Respondent No.1.
               Mr. R. G. Ramani, Senior Advocate with Mr. Vinayak Nevrekar,
               Advocate for Respondent Nos.2 and 3.
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                                …
                            CORAM : S. G. CHAPALGAONKAR, J.

RESERVED ON   :12th AUGUST, 2026.
PRONOUNCED ON :17th AUGUST, 2026.

JUDGMENT:-

1.    Rule. Rule made returnable forthwith. With consent of parties,

matter is heard finally at admission stage.


2.    The petitioners (legal heirs of original plaintiffs) impugns

following orders passed by Civil Judge Junior Division, Quepem-Goa:-

 1.   Order dated 06.09.2023 at Exhibit-D-132 allowing respondent
      nos.2 and 3 to produce an additional document, viz a Will dated
      11.08.1992.

 2.   Order dated 06.09.2023 at Exhibit-D-134 allowing respondent
      nos.2 and 3 to amend their written statement.

 3.   Order dated 25.09.2023 at Exhibit-D-136 allowing application
      of respondent nos.2 and 3 to recall DW1 and file his additional
      affidavit-in-evidence.

 4.   Order dated 04.10.2023 at Exhibit-D-140 dismissing petitioners’
      application for amendment in plaint.

3.    The petitioners are legal heirs of original plaintiff Mr. Benedito

Gonsalves. The Regular Civil Suit No.69/1996 was instituted by him

before Civil Judge Junior Division at Quepem seeking relief of

declaration that perpetual lease dated 09.03.1994 executed by

respondent no.1 in favour of respondent no.2 is null and void and

injunction to restrain respondent nos.2 and 3 from alienating suit paddy
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field. It is contention of plaintiff that suit field is portion of property

known as Varzea or Vagoma surveyed under no.17/78 of Amona village.

It was cultivated by late Manuel Gonsalves (Father of plaintiff and

defendant no. 2). The plaintiff and defendant nos.2 and 3 are his legal

heirs. After death of Manuel Gonsalves, his widow Smt. Pasquela

Fernandes was cultivating suit field with assistance of plaintiff. She

expired on 17.05.1996 leaving behind three sons and two daughters i.e.

plaintiff no.1, Anonio Gonsalves, defendant no.2, Ana, Rosa and

Salvacao Gonsalves. Later on, dispute erupted amongst heirs of late

Manuel Gonsalves.


4.    The plaintiff instituted Inventory proceeding no.60/1996 for

partition of assets left by parents before Civil Judge Senior Division at

Quepem including suit field. The defendant nos.2 and 3 filed objection

and claimed their exclusive rights by virtue of perpetual lease dated

09.03.1994 executed by defendant no.1. The plaintiff came to know

about said lease on 09.09.1996 through objection filed by defendant

nos.2 and 3. The contention of plaintiff is that suit paddy field is

heritable to all legal heirs, hence, defendant nos.2 and 3 could not obtain

perpetual lease to the exclusion of other heirs. The plaintiff is having

1/5th share in suit paddy field. The suit is contested by defendant nos.2

and 3 by filing written statement contending that plaintiff has full
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knowledge of perpetual lease, which was never objected by him since

he had no right in suit paddy field.


5.    During pendency of suit, tenancy issue was reframed by this

Court in Civil Revision Application No.71/2000 and matter was sent to

Mamlatdar. Finally, Administrative Tribunal, Goa by judgment and

order dated 20.04.2021 declared that suit paddy field is in joint tenancy

inherited by all legal heirs of late Manuel Gonsalves. The aforesaid

decision of Administrative Tribunal, Goa has attained finality. As such,

suit property is joint tenancy inherited by all legal heirs of late Manuel

Gonsalves. Practically challenge raised in suit to perpetual lease dated

09.03.1994 rendered insignificant.      However, parties proceeded to

record evidence. The plaintiff closed his evidence on 19.08.2023. The

defendant no.2 (DW-1) also completed his evidence.


6.    At this stage, respondent nos.2 and 3 filed application below

Exhibits 132 and 134 for amending their written statement and bringing

on record public Will dated 11.08.1992 allegedly made by Ms. Pasquela

Fernandes. The Trial Court allowed both applications vide impugned

orders dated 06.09.2023. In light of aforesaid orders, respondent nos.2

and 3 filed another application at Exhibit-136 to recall DW-1 and file

additional affidavit-in-evidence, which has been allowed vide impugned

order dated 25.09.2023.      At this stage, petitioners filed application

Exhibit-140 for amendment of plaint raising challenge to public Will.
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However, said application suffered dismissal by impugned order dated

04.10.2023.


7.       Mr. Vilas Thali, learned Advocate appearing for petitioners fairly

submits that in light of judgment delivered by Administrative Tribunal,

declaring suit property as joint tenancy, inherited by all legal heirs of

late Manuel Gonsalves, prayer for declaration against perpetual lease in

suit rendered insignificant. However, since defendants amended written

statement and filed on record public Will dated 11.08.1992, asserting

their claim over disposable share of Smt. Pasquela Fernandes,

petitioners are required to file application seeking amendment in plaint

challenging public Will, apprehending defence of bar under Order II

Rule 2 of Code of Civil Procedure (hereinafter referred as ‘CPC’),

which may operate in independent suit filed by plaintiff seeking

declaration against public Will. In support of his contentions, he relies

upon following judgments:

     1. Gurdial Singh and others Vs. Raj Kumar Aneja and others1.

     2. Gajanan R. Salvi Vs. Satish Shankar Gupte and others2.

8.       Per contra, Mr. R. G. Ramani, learned Senior Advocate appearing

for respondent nos.2 and 3 fairly concedes that bar under Order II Rule

2 of CPC would not arise in subsequent suit instituted by plaintiffs

raising challenge to public Will, as fresh suit is based on recent cause of
1    (2002) 2 SCC 445.

2    2005 (1) Mh.L.J. 966.
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action, which is different than cause of action pleaded in present suit.

Even, he makes candid statement on instructions from respondent nos.2

and 3 that they would not plead bar of Order II Rule 2 of CPC in

plaintiffs’ suit against public Will.


9.    Having considered submissions advanced by learned Advocates

appearing for respective parties, as conceded by learned Advocates for

both parties, present suit can be disposed of on the basis of pleadings

and evidence, which is already on record. Mr. Ramani, learned Senior

Advocate makes responsible statement that defendants would not press

their prayer for recall of DW-1 and proceed to argue matter without

leading further evidence.


10.   This Court finds that so far as proposed amendment in plaint,

thereby raising challenge to public Will would be absolutely

unwarranted, as plaintiffs have already instituted independent suit for

that purpose. The apprehension expressed on behalf of plaintiffs that

failure to challenge public Will in present suit would operate as bar

under Order II Rule 2 of CPC in his independent suit cannot be

countenanced, as said suit is filed on the basis of independent cause of

action after getting knowledge of public Will dated 11.08.1992. In

present suit objection is raised to permanent lease dated 09.03.1994

executed by defendant no.1 in favour of defendant no.2 in relation to

paddy field only. In present suit defendants filed copy of public Will
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executed by Smt. Pasquela Fernandes only with a view to bring to

notice of this Court their claim on the basis of public Will.


11.         Pertinently, independent Inventory proceeding is pending between

parties and their shares would be determined in that suit. This Court

finds that, in wake of pendency of inventory proceeding and

independent suit raising challenge to public Will, present suit can be

disposed of by Trial Court without recording further evidence taking

into account order dated 20.04.2021 passed by Administrative Tribunal,

Goa declaring joint tenancy of legal heirs of late Manuel Gonsalves.


12.         In that view of matter, Writ Petition stands dismissed.


13.         The Trial Court shall proceed to decide pending suit

expeditiously.         None of the party would be entitled to lead further

evidence or recall witness for that purpose.


14.         Needless to state here that, Trial Court would not delve into

validity of public Will while rendering decision in present suit.


15.         Rule stands discharged.


                                              (S. G. CHAPALGAONKAR)
                                                       JUDGE
Devendra/August-2026