It is no doubt true that there is no provision for cross-
examination of the valuer. However, since there is a provision
for
valuation of the assets, it goes without saying that while carrying
out such valuation principles of natural justice must be followed.
The Valuer was bound to notify the interested parties about the date
of inspection so that they or anybody of them could remain present
and guide the Valuer
while carrying out the valuation of the
property and the house. Since the same has not been done, the
valuation reports are bound to be rejected. There is serious doubt
whether the Valuer had actually taken any personal site inspection
since in that case he would have referred to the inmates of the
residential house.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 739 OF 2013.
Mr. Fidelis Caetano Teodomiro
Filomeno da Costa alias Fidelis
da Costa,
versus
Mrs. Piedade Costa
Alias Patsy da Costa,
Coram:-U. V. BAKRE, J.
Date:- 11th February, 2014
Citation; 2014(6) ALLMR 155
Heard Mr. Ramani, learned Counsel appearing on behalf of the
petitioners and Mr. D'Costa, learned Senior Counsel appearing on
behalf of the respondents.
2. Rule. Rule made returnable and heard forthwith.
3. By this petition, the petitioners have taken exception to the
judgment and order dated 27/09/2013 passed by the learned
District Judge-II, South Goa at Margao (First Appellate Court) in
Miscellaneous Civil Appeal No. 93/2013.
4.
Upon the expiry of Placido Joao Joaquim Santo Aleixo da Costa,
his son, the petitioner no.1, initiated Inventory Proceedings No.
98/1983/E, in the Court of Civil Judge, Junior Division at Margao (Trial
Court) to get the estate of the deceased partitioned. In the said
Inventory Proceedings, the widow of the deceased namely Delfina
Isabel Braganza e Costa was appointed as Cabeca de Casal but as
she was old and unable to discharge the duties of Cabeca de Casal,
the petitioner no.1 came to be appointed as Cabeca de Casal. The
said Delfina Isabel Braganza e Costa died on 05/06/1994. It appears
that in the year 2003, an Engineer namely Mr. Mahendra S. Kakule
was appointed as Commissioner to prepare valuation reports in
respect of the immovable properties which were enlisted in the list
of assets.
On 30/11/2012, the petitioner no. 1, as Head of the
Family, filed the list of assets. On 07/01/2013, the respondents filed
objections to the said list of immovables/movables filed by the
petitioner no.1.
By Order dated 04/02/2013, the Trial Court
dismissed the said objections and confirmed the list of assets.
Subsequently, the same Engineer Shri Mahendra S. Kakule, at the
instance of the learned Trial Court, prepared fresh Valuation Reports
dated 26/03/2013 in respect of the three immovable properties,
enlisted in the list of assets. On 22/07/2013, the respondents filed
their Say/objections to the Valuation Reports dated 26/03/2013.
4
5.
WP 739/13
In their objections, the respondents alleged that no notice of
inspection was issued by the Valuer to the interested parties and
that no personal site inspection was done by the valuer. It
was
further alleged that it is not known as to who identified the
properties to the valuer. It was further alleged that the interested
parties namely Piedade Costa alias Patsy da Costa resides in the
ancestral house no. 1267 located in the property under Survey No.
105/9 of village Curtorim along with her children and since the time
of the death of the estate leaver, it is the husband of the said
interested party, late Roque Antonio Ricardo da Costa with the
interested party Piedade Costa and her children have carried out
annual maintenance and repairs to the ancestral house and also
done improvements
and renovation to the same.
It was alleged
that the said facts could not be brought to the notice of the Valuer
in view of the absence of inspection and therefore, great injustice
as such is caused to the
interested parties.
It was, therefore,
prayed that the Valuer be called to explain the objections and the
interested parties be permitted to cross-examine the Valuer on his
reports.
6.
The Cabeca de Casal endorsed his objection on the said
say/objections on the ground that the same are filed beyond
limitation period.
5
7.
WP 739/13
By order dated 28/08/2013, the learned Trial Court dismissed
the said objections. The Trial Court observed that the Valuer had
earlier visited the property long back in the year 2003 with the
interested party and therefore, there was no necessity to identify
the property.
It was further held that since the interested party did
not object to the list of assets, the alleged improvements done by
the interested party were not asked to be valued.
It was further
observed that the house was not valued as the Valuer was asked to
value only the property and not the house. It was also held that the
valuation cannot be termed as exorbitant since it was as on 1975.
The Trial Court observed that the list of assets was filed long back
on 16/09/2011 and hence the objections regarding valuation not
being carried out to the house are belated and beyond limitation
period and cannot be taken into account.
8.
The respondents challenged the said Order dated 28/08/2013
by way of Miscellaneous Civil Appeal No. 93/2013 before the First
Appellate Court which upheld the objections raised by the
respondents and called upon the Valuer for cross-examination on
the said three reports dated 26/03/2013.
The said order is
impugned in the present petition.
9.
Mr. Ramani, learned Counsel appearing on behalf of the
petitioners submitted that the respondents had not raised any
6
WP 739/13
objections regarding improvements carried out to the house within
the time prescribed. He pointed out that the list of assets was filed
by the Cabeca de Casal on 30/11/2012.
that the respondents
He, therefore, submitted
are not entitled to make any claim on the
basis of alleged improvements.
He further submitted that the
valuation was as of 1975 and that this is only an upset value for the
purpose of holding auction.
He submitted that in the year 2003
when the same Commissioner (valuer) had done the valuation, no
objections were raised. He further submitted that in terms of Article
1379 of the Portuguese Code of Civil Procedure, once the list of
properties are submitted, 48 hours are given to the interested
parties for inspection and examination and it is during that period
of examination or inspection, the parties had to raise objection if the
existence of the property etc. is denied. He submitted that nothing
regarding improvements was stated within the prescribed time limit
though the list of assets was filed on 30/11/2012. He invited my
attention to Article 1432 of the Portuguese Code of Civil Procedure
and submitted that the fresh appraisal cannot be allowed unless
there is serious reason to believe that the value of the property had
changed. He submitted that there is no provision of law permitting
cross-examination of the Valuer and that even otherwise nothing
could come out of the cross-examination.
10.
On the other hand, Mr. D'Costa, learned Senior Counsel
7
WP 739/13
appearing on behalf of the respondents invited my attention to the
valuation reports dated 26/03/2013 and pointed out that there is no
mention in these reports that notice in respect of the inspection was
given to any of the interested parties. He submitted that one of the
interested parties resides in the ancestral house situated in one of
the properties and it is surprising that without knowledge of the
inmates of the house, the Valuer could give particulars of the
internal parts of the said residential house.
He submitted that
there is a false declaration made by the Valuer that he had
personally inspected the property on 09/03/2013. The
learned
Senior Counsel invited my attention to Article 2097 of the
Portuguese Civil Code and submitted that the improvements are
bound to be valued.
He further submitted that though the
interested parties have carried out improvements to their ancestral
house, the same did not find place in the valuation report.
He
further submitted that the Valuer need not be called for cross-
examination but it would be necessary to prepare fresh valuation
reports by conducting actual inspection of the properties and the
residential house, after giving notice to all the interested parties.
11.
I have gone through the material on record and I have
considered the submissions advanced on behalf of the parties.
12.
There is no dispute that the interested party namely Piedade
Costa alongwith her children resides in the ancestral house, situated
in one of the properties. In the valuation report, there is no mention
about the presence of said Piedade Costa or any other inmate/s of
the house when the Valuer inspected the property and more
particularly the residential house. The valuation report, inter alia,
mentions that the walls are of laterite stone/mud and are plastered
from inside and outside. The valuation reports do not mention that
prior notice of inspection was given to the interested parties. There
is serious doubt whether the Commissioner had actually visited the
properties and whether he had entered the residential premises
therein.
Therefore, the valuation done by
Valuer is not beyond
suspicion.
13.
It is no doubt true that there is no provision for cross-
examination of the valuer. However, since there is a provision
for
valuation of the assets, it goes without saying that while carrying
out such valuation principles of natural justice must be followed.
The Valuer was bound to notify the interested parties about the date
of inspection so that they or anybody of them could remain present
and guide the Valuer
while carrying out the valuation of the
property and the house. Since the same has not been done, the
valuation reports are bound to be rejected. There is serious doubt
whether the Valuer had actually taken any personal site inspection
since in that case he would have referred to the inmates of the
residential house.
14.
The learned Trial Court has wrongly observed that the house
was not valued as the Valuer was asked to value the property and
not the house. In fact, the valuation reports reveals that the house
has been valued. The learned First Appellate Court has held that
prima facie the reports dated 26/03/2013 appear to be different
from the earlier report filed by the Commissioner on 13/08/2003.
The First Appellate Court has held that since the present reports are
not similar to the one which was produced earlier, the interested
parties
could
Commissioner.
have
been
permitted
to
cross-examine
the
As rightly contended by the learned counsel for the
petitioners, there is no provision for cross-examination of the valuer.
In my view, since there are serious objections to the valuation
reports and also since the present reports are allegedly not similar
to the earlier reports, the Valuer should be directed to carry out
fresh valuation after giving notices to the interested parties to
remain present at the site, if they desire, in order to guide him with
regard to the property and the house. Impugned order allowing
cross-examination of valuer is not sustainable. It is pointed out that
the Inventory proceedings are old being of 1983. Learned Counsel,
therefore, agree that a direction be given to expedite the disposal.
15.
In the result, the petition is partly allowed.
(a)
Valuation reports dated 26/03/2013 prepared by the
Commissioner Shri Mahendra Kakule are rejected.
(b)
The engineer shall prepare fresh valuation reports by
personally inspecting the properties and the house
after giving notice to all the interested parties to
remain present , if they desire.
(c )
The
inventory
proceedings
being
old,
shall
be
disposed of by the Trial Court finally, expeditiously
and in any case within a period of 8 (eight) months
from the date of receipt of this Order.
(d)
16.
Rule made absolute in the aforesaid terms.
Petition stands disposed of accordingly.
U. V. BAKRE, J.
No comments:
Post a Comment