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Synopsis

In an appeal filed by a deceased person’s married daughter, the Goa Bench of Bombay High recently observed that even if the dowry was provided to daughters during the marriage that does not mean they have no right in family properties.

The single judge bench of Justice Mahesh Sonak while hearing the appeal quashed the transfer deed dated September 8, 1990 and declared the same as null and void.

The transfer deed was made by the four brothers of the appellant without her consent.

"No evidence on record that states that they had provided sufficient dowry to the daughters, even in a case where it is assumed that does not exclude daughters from their rights on the property," the court observed.

The bench was hearing a petition filed by the daughter of a deceased person seeking an injunction against her mother and four brothers from establishing any third-party interests in her family's properties. The appellant was the eldest married daughter. Her four brothers and mother, however, did not offer her an interest in any of the assets. 

She stated that the mother and other sisters had agreed to a transfer agreement in favour of two of her brothers in 1990. The family's shop and residence were transferred to the two brothers as a result of this transfer agreement. She also contended that she was only made aware of the situation in 1994.

She also contended that on August 9,1994, she caused a publication of a notice in the Daily Herald cautioning the public about her undivided co-ownership rights in the suit shop and the property beneath the same and cause of action arose on or about June 26, 1994 when the appellant came to know for the first time about the execution of the Transfer Deed. 

Thus, she filed a civil suit against the transfer decree.

It was claimed by brothers that their four sisters were settled by payment of dowry during their marriages. 

Court was informed that the suit shop was not hereditary property but rather an asset of the partnership firm founded by the three sons and their late father. They brought a counter-claim against the Deed of Succession. The brothers also claimed that the current proceedings were barred by the Limitation Act, which states that a suit must be filed within three years of learning of the decree or execution of the deed. It was also claimed by the brothers that the transfer deed was signed in 1990 and the complaint was filed in 1994. 
The daughter’s suit was dismissed, but the counterclaim was partially allowed, and the Deed of Succession was annulled. The appellate court granted the appeal in part and reinstated the Deed of Succession. However, it did not overturn the trial court's judgment since the appellant's suit was time-barred. And therefore she filed a second appeal

The present court while dealing with four substantial questions in the second appeal observed that according to article 1565 of the Portuguese Civil Code which is still in force, the mother was not entitled to transfer her share in the suit shop to her two sons without the consent of the other sons and daughters.

Furthermore, the Judge also pointed out that the appellant had stated that she filed the complaint within six weeks of learning about the alleged deed and observed that the brothers failed to prove that the appellant was aware of the alleged deed in 1990.

The judge was further of the opinion that the transfer deed dated September 8, 1990 provides half rights to the suit shop and if the mother had the rights, then even the family’s daughters had rights of co-ownership to the suit shop.

Referring to articles 1565 and 2177 of the Portuguese Civil Code, the court declared the transfer deed null and void.

Lastly, the court also allowed the permanent injunction which restrained brothers from transferring the property to whosoever without the written consent of the daughter.

Case Title: Terezinha Martins David vs Miguel Guarda Rosario Martins

Statute: Section 100(5) of the Civil Procedure Code, Articles 1565  and 2177 of the Portuguese Civil Code