Writ Petition No. 871 of 2015. Case: Teodorico Ludovico Camilo Fernandes and Ors. Vs Walter Antonio Otao Fernandes and Ors.. High Court of Bombay (India)

Case NumberWrit Petition No. 871 of 2015
CounselFor Appellant: Cliff Fernandes, Advocate and For Respondents: M.B. Da Costa, Senior Advocate and S. Chodankar, Advocate
JudgesS. B. Shukre, J.
IssueConstitution of India - Article 227
Judgement DateJanuary 11, 2016
CourtHigh Court of Bombay (India)


S. B. Shukre, J.

  1. Heard.

  2. Rule. Rule returnable forthwith.

  3. Heard finally by consent.

  4. This writ petition challenges the order dated 4/9/2015 passed by the First Appellate Court, Court of the District Judge-1, Panaji, which is a common order rendered in Misc. Civil Appeal No. 92/2014 and Misc. Civil Appeal No. 93/2014.

  5. By this common order, the first Appellate Court dismissed Misc. Civil Appeal being Misc. Civil Appeal No. 92/2014 and allowed another appeal being Misc. Civil Appeal No. 93/2014. These appeals were filed against the common order dated 31/7/2014, passed in Regular Civil Suit No. 56/2014/C by the Civil Judge Junior Division, Panaji Goa, thereby rejecting the application of the respondents no.1 and 2 for grant of temporary injunction and also their application for appointment of Court receiver.

  6. The respondents no.1 and 2, who are the original plaintiffs have filed a civil suit for partition against the petitioners, the original defendants no.1 and 2 and several other defendants.

  7. It has been contended that a property consisting of survey nos.24/2, 30/1, 29/1, and 24/7 of Goa Velha village comprising coconut trees, mango trees, one chapel of St. Anthony along with a residential house was bequeathed by the original owner and the testator to the respondents no.1 and 2 and the original defendant no.1, by the Will dated 7/7/1964. By virtue of this Will, the usufruct was allotted to Mrs. Henriqueta Fernandes who died on 3/12/1985 and the original defendant no.1 i.e. the petitioner no.1 was appointed as the administrator of the property. As an administrator, the petitioner no.1 had the obligation to maintain the property, to collect the rents, to distribute the income amongst all the legatees including he himself in the proportions mentioned in the will and also to keep for himself certain portion of the income as remuneration as an administrator. It is the case of the respondents no.1 and 2 that the petitioner no.1 failed to discharge his obligation properly and that because of certain actions on his part, such as cutting of two coconut trees and teak wood trees without permission of the co-legatees and not distributing income generated from this property amongst all the co-legatees an irreparable injury is being caused to them. Therefore, the respondents no.1 and 2 filed a suit for partition of the suit property by metes and bounds. In the suit, these respondents also filed an application under Order 39 Rule 1 for grant of temporary injunction against the petitioners restraining them from dealing with the property in any manner and also another application for appointment of a receiver.

  8. Both the applications filed by the respondents...

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