MRS. ETHEL LOURDES D’SOUZA LOBO versus LUCIO NEVILLE JUDE DE SOUZA & ORS. on 19 September 2022

1. The present appeals arises from a judgment rendered by theBombay High Court, Goa Bench[1]. The dispute arises out of inventoryproceedings[2] under Chapter XVII by Articles 1369 to 1447 of thePortuguese Civil Procedure Code (hereafter “the Code”).

2. Inventory proceedings in the present case arose and wereinitiated on account of the death of Lt. Guilherme Caetano Souza andhis wife, Maria Guilhermina Augusta Lourdes Aguiar Souza. Theseproceedings were initiated in 1985 for partition of the estate of the saiddeceased.[3] There were six heirs of the deceased (hereafter referred toby their names) - i.e., Pedro (survived by the petitioner, Ethel Lourdes;and Respondent Nos. 23-26); Hermano (survived by the first fourrespondents); Maria Emila Pulqueria Natividade (fifth respondent,deceased and survived by her heirs – Respondent Nos. 6 to 11); MariaPatricia Lucia (deceased, survived by Respondent Nos. 12 to 21); MariaEmilia Julieta (deceased); and Edwin (deceased). The estate in questioncomprised, inter alia, three items of immovable property. Lt. Edwin,one of the heirs, succeeded to two items (Nos. 2 & 3) of the properties, 1 In WP No. 671/2010 dated 10.08.2012

2 Described in Treatise of Civil Code, by Dr. Luis da Cunha Gonsalves, Volume Xpage 590 as “Inventory is a complete description of assets and debts or of the estate ofthe inheritance and liabilities of the estate, in order that one or other, or the balanceremaining after payment of debts, be divided amongst the successors of the deceased,or allotted to his sole heir.”

3 Inventory proceedings No. 109/1985/1

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Ahaving bid highest among the heirs in an auction (licitation) held on28.02.2001. The property in dispute is Item No. 1.

3. It is an undisputed fact that the Code is a comprehensive law,incorporating both substantive and procedural elements, regarding variousmatters, including those relating to personal laws, with elements ofBinheritance and succession to estates. The Code was initially framed in1867; it became applicable as “law in force” upon assimilation of Goainto the Indian Union by virtue of Section 5 (1) of the Goa, Daman andDiu Administration Act, 1962.

4. When succession opens up to an estate, the properties (bothCmovable and immovable) and liabilities of the deceased are inventorized.In the inventory proceedings, an elder member of the family is appointedas Cabeca de Casal (administrator). The administrator has to preparean inventory of all the properties of the deceased. The deceased’sproperties are inventorized and evaluated, after which they are to bedistributed in accordance with the shares laid down in the Code[4].D

5. The steps following the above are that under Article 1369 ofthe Code, the initial valuation of the property has to be settled by theparties initiating the inventory proceedings. By Article 1387, theconcerned court, orders the appraisal of the properties by an appraiser,where no questions (issues or disputes) are raised against the descriptionEor those so raised had been decided. The valuation stage would arisewhen the licitation takes place, and parties offer the market value foreach property. After parties are intimated about the list of assets underArticle 1379, they or any of them have to apply for licitation. By Article1391, if interested parties do not apply for licitation within 48 hours, theFright is waived, and there can be no licitation. In such an event, theproperty enlisted in the proceedings would be allotted to the interestedparties in accordance with their respective shares. Licitation, quite simplyis a closed auction, in which heirs of the deceased, entitled to shares inthe estate, participate. Licitation is provided by Article 1412; it reads asfollows:G“The licitation is an auction to which only the heirs andmoiety holder spouse are admitted, except the cases where,in terms of preceding articles, the donee or legatee shouldalso be admitted. It may fall over the properties of the H4 Ref Jose Paulo Coutinho v. Maria Luiza Valentina Pereira & Ors. (2019) 20 SCC 85

inheritance which are not necessarily to be allotted in anyparticular party.”

6. Reverting to the facts of this case, on 28.02.2001, Item No. 1too was part of the licitation; Late Maria Emilia Souza was the highestbidder. Since she defaulted in the payment of the owelty amount, a freshbid was ordered. On 17.12.2004, the bidding in the second licitationcommenced, and continued on to 03.01.2005 involving Item No. 1.Hermano (represented by the first four respondents in this court) wassuccessful, with the highest bid for 34,15,100/-. Hermano had been`constituted as the Cabeca de Casal. He died on 11.07.2008. By then,he had not deposited any amount towards the bid offered by him. At thatstage, the final partition chart had not been drawn. This fact was reportedto the concerned court seized of the inventory proceedings. At the sametime, an application was moved by Adelaide M. De Souza (Pedro’s heir,Respondent No. 26) for being impleaded as a party to the proceedings.The present appellant also moved an application for the appointment ofa fresh Cabeca de Casal and reauction of Item No.1.

7. The claim for reauction was resisted by Hermano’s heirs, whoargued that they could continue the proceedings and that they wereentitled to Item No.1. The Inventory court (or the trial court), by itsorder[5] allowed the appellant’s application citing Article 1417(c) of theCode. The respondents had argued that the provision did not apply sincethe notice of payment of owelty amounts had not been made. The trialcourt held that the property had to be reauctioned and since Hermanohad not deposited the sale proceeds within the time stipulated, and hisheirs could not claim ownership of the auctioned property, i.e., ItemNo.1. It was further held that Hermano’s heirs could not succeed inrespect of the bid, because that was not a heritable item. This decisionwas appealed against, by Hermano’s heirs.

8. The District Judge, Margao, by its order[6] reversed the ruling ofthe inventory court and held that the effect of a successful bid was thatthe successful bidder had a right to the property, which upon his deathdevolved on his legal heirs. Being aggrieved by the decision of the DistrictJudge, the appellant approached the High Court, which on the basis ofthe materials on record concluded that the inheritance of an heir ininventory contemplated under Section 1737 of the Code, included rights 5 dated 25.03.2009

6 dated 27.08.2010, in Misc. CA 87/2009.

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Aflowing from a successful bid in a licitation, as it included the right to payowelty. It was further held that the occasion for depositing the amounttowards auction would arise only after the amounts were apportionedwith regard to each heir’s share and only if the bid amount exceeded theshares of the successful bidder in the inventory proceedings. It wasfurther held that the obligations and rights devolved upon legal successors,Bi.e., present respondents. The court also held that the right of a successfulbidder could not be considered to be in personam so resulting in itsextinguishment after his death. To hold so, the High Court cited Article1439 of the Code, which, in its opinion, confers a right in presenti upona successful bidder in an inventory proceeding to hold the property as anCadministrator.

Submission of parties

9. Mr. Keane Sardinha, learned counsel for the appellant, urgedthat the findings of the first appellate court and the High Court, areerroneous. It was argued that the rights conferred upon a successfulDbidder who is a party to inventory proceedings under Article 1737 do notdevolve upon his heirs on his death. The appellant urged that a bid in anauction does not create any right or interest in the property, nor is therea concluded contract between the bidders and other interested parties.Consequently, no heritable right or legally enforceable right passes toEthe heirs of the deceased participant in a licitation proceeding. It wassubmitted that there was no chart of partition determining the share ofowelty amounts in the proceedings, which meant none of the partiescould lay claim or demand their share of the price.

10. It was further submitted that the right to claim an asset throughFan auction can never be a heritable right, and is extinguished upon thedeath of the bidder. In the present case, it was emphasized that Hermanohad expired much before the bid amount was paid. Consequently, theauction had no legal effect. Relying upon Article 1417(c), it was submittedthat since no amount was in fact deposited, after licitation, even afterthe successful bid, no rights could vest in Hermano’s heirs upon hisGdeath.

11. It was further stressed by Mr. Sardinha that in respect of thesame property, i.e., Item No.1, a previous auction – held in the year2001 was deemed abortive on account of failure by the successful bidderto deposit the owelty amount. In these circumstances, the same logicH

had to prevail to oust any claim by Hermano’s heirs. Lastly, it was urgedthat the inventory proceedings had prolonged - since the auction in thepresent case was held in 2005 and till his death Hermano did not wish tofulfil his obligation. His heirs resisted the reauction, which would fetch ahigher amount for the property, and be fair and equitable to all heirs.

12. Ms. Vibha Dutt Makhija, learned counsel for the respondentsubmitted at the outset that this Court should not interfere with theconcurrent findings of the appellate court and the High Court. Learnedcounsel submitted that inventory proceedings cannot be linked to partitionsuits. They are meant to describe and apportion the estate of a deceasedperson. Article 2064 to 2166 of the Code enacts substantive provisions,whereas procedural provisions are contained in Articles 1369 to 1447.In this procedure, when licitation is held at the request of parties, specificproperties are earmarked after their comprehensive agreed valuation.The parties then indicate the mode of partition which is ruled by thecourt. It is after this process that the court prepares a chart of partitionindicating the inter se amounts to be paid by the parties to the inventoryproceedings depending on their entitlement and shares, and having regardto the adjustment of the manifest value of their shares with any obligationson their part (such as the final amount payable after adjustment, assuccessful bidders). It was submitted that in the present case, the stageof final partition had not been reached. Consequently, the highest bid,i.e., ¹ 34,15,100, could not be called the owelty amount payable byHermano.

13. It was submitted that the court correctly held that the estateof Hermano comprised not only of his rights and obligations but also hisright as a shareholder in the inventory proceedings – which included hisright as a successful bidder for Item No.1. In this regard, reliance wasplaced upon Article 1737, by the respondent in support of theirsubmissions.

Analysis and Conclusions

14. The provisions of the Code, to the extent they are relevant,are extracted below:

“Article 1736 (Concept of heir and legatee)

Heir is a person who succeeds to the totality of theinheritance, or to a part thereof without specifying the sum A

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of money or the object. Legatee is a person, in whose favourthe testator disposes of a sum of money, or specified objects,or a certain part thereof.

Article 1737

The inheritance covers all the properties, rights andobligations of the author, which are not merely personal orwhich are otherwise excepted by the disposition of the authorhimself or by law.

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Sub Division V

Of the Licitation and Partition

Article 2126 (Form of partition and declaration of licitation)

After the description and appraisal is done, as aforesaid,the parties shall be heard as to the form of partition, and ifany of them is willing to bid for any property or other object,he shall so declare in his reply.

Article 2127 (Formalities of licitation and when to be held)

The licitation shall precede the act of partition, after all theparties are summoned, and it shall take place amongst themonly, as if it is a case of an auction.

Article 1416 (Chart of partition)

After the file is received with the order referred to in Article1414, the office shall draw the chart of partition, withineight days, in accordance with the same order and inaccordance with the provision of the preceding Article.

For the purposes of the drawing of the chart, first of all, itwill be found what is the total amount of the assets, by addingthe values of each kind of properties as per appraisals andlicitations and by deducting the passive debts, legacies andcharges which ought to be discounted; thereupon theamount of the share of each party shall be worked out andthe part which is allotted to the party in each type ofproperties; finally the allotment of each share will be donewith reference to the numbers of the items of the description.

The lots which are to be drawn by sortition shall bedesignated by letters.

Paragraph 1: The values shall be indicated by figures only.The numbers of the items of the description shall be shownin figures and by words and when they are continuous onlythe terminal numbers between which the numbering iscomprised shall be noted. In case some fraction of the itemsfall to the coheirs, such fraction shall be mentioned.

Paragraph 2: In each lot the kind of properties of which itis comprised shall be shown.

Paragraph 3: The judge shall initial each and every pageof the chart and shall confirm the errata note of corrections,erasures or interlineations.

Article 1417 (Steps to be taken when the gifted propertiesor properties subject of licitation exceed the share of the party)

Where the office finds, at the time of drawing the chart, thatthe properties gifted or taken by licitation exceed the shareof the respective party or the disposable portion of thedeceased, a note shall be recorded in the file, in the shapeof a chart, indicating exactly what is the amount of theexcess, and thereupon the following shall be observed:

(a) Where in between the properties gifted to a co-heir thereexists any property not divisible, which does not fit whollyin the share to the donee, such property shall form part ofthe mass of partible properties as any other property of theinheritance; in other cases, the donee shall be notified toexercise, within three days, his right of choice which isconferred upon him by paragraph 4 of Article 2107 of theCivil Code, failing which his share will be allotted with theproperties indicated by the judge; (b) Where the gift made to a stranger is inofficious, the sameshall be reduced in terms of Article 1493 onwards of theCivil Code; A

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124SUPREME COURT REPORTS

A(c) Those who have not taken the properties in licitationand who are to be allotted the owelty money due by thosewho were successful in the licitation, shall be notified todemand within three days the payment, if they so desire. Ifthe demand is made the successful bidder shall be notifiedto deposit the amount failing which the licitation will be ofBno effect.

Where the payment is not demanded, the owelty money shallearn the legal interest from the date of final judgment ofpartition and the creditors thereof may register the legalhypothecation over the properties adjudicated to the debtor.”C15. It is recognized that, unlike partition suits, inventory proceedingsunder the Code are not essentially adversarial. In these proceedings,initiated upon the death of one governed by the Code, that event is reportedto the Court. A Cabeca de Casal (administrator or head of thehousehold) is appointed by the Court, from amongst senior members ofDthe family, to manage the properties of the deceased. When theproceedings culminate after the apportionment of shares, there is nodecree.[7] The Cabeca de Casal is enjoined to report all items of thedeceased’s estate - if there are bequests in testamentary instruments,their description. Thereupon the items are sought to be divided: for thatEpurpose, each item is valued. Those properties which cannot be divided,are then the subject of licitation proceedings, where heirs are allowed tobid for each item of those properties. The chart of partition is thenprepared, listing out the share and the value of shares of each heir.Those who secure properties (through licitation, etc.) in excess of suchshare have to pay owelty amounts. As to what is owelty, was explainedFby this Court in T.S. Swaminatha Odayar v. Official Receiver of WestTanjore[8] in the following terms:

“It therefore follows that when an owelty is awarded to amember on partition for equalization of the shares on anexcessive allotment of immovable properties to anotherGmember of the joint family such a, provision of oweltyordinarily creates a lien or a charge on the land taken underthe partition. A lien or a charge may be created in express 7 Ref. Zacarias Durate Domoingos Pereira v. Camilo Inacil Evaristo Pereira, AIR1984 Bom 295H8 [1957] 1 SCR 775

terms by the provisions of the partition decree itself. Therewould thus be the creation of a legal charge in favour ofthe member to whom such owelty is awarded. If, however,no such charge is created in express terms, even so the lienmay exist because it is implied by the very terms of thepartition in the absence of an express provision in thatbehalf. The member to whom excessive allotment of propertyhas been made on such partition cannot claim to acquireproperties falling to his share irrespective of or dischargedfrom the obligation to pay owelty to the other members. Whathe gets for his share is, therefore, the properties allotted tohim subject to the obligation to pay such owelty and there isimported by necessary implication an obligation on his partto pay owelty out of the properties allotted to his share anda corresponding lien in favour of the members to whom suchowelty is awarded on the properties which have fallen tohis share.”

16. Owelty, then, is awarded to a member in proceedings of partitionfor equalization of the shares on “an excessive allotment of immovableproperties to another member.” The total amount which has to bedistributed to the heirs as per their shares, therefore, includes inter alia,on the owelty sums paid in, by one who can claim entitlement to immovableproperty in excess of the share allocable to her or him.

17. One of the earlier decisions of the Bombay High Court inShri Damodar Ramnath Alve v. Shri Gokuldas Ramnath Alve & Anr.[9]explained the stage of payment of owelty:

“23. Article 1417 refers to the steps to be taken when thegifted property or properties subject of licitation exceed theshare of the party. Clause (c) of Article 1417 reads asunder:- “c) Those who have not taken the properties in licitationand who are to be allotted the owelty money due by thosewho were successful in the licitation, shall be notified todemand within three days the payment, if they so desire. Ifthe demand is made the successful bidder shall be notified AB

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Ato deposit the amount failing which the licitation will be ofno effect.”

In the instant case the demand was made and notice wasissued on 4th January 1989. Thus, from this day period of5 days begins. He filed an application dated 12th JanuaryB1989, stating therein that he be exempted from the paymentof owelty money until the decision of Civil Suit No. 202/1986/A and same came to be dismissed on 18th February1989. On 27th February 1989, appellant Damodar filedanother application stating that challans be issued to himto deposit the owelty money. Challans were handed over toChim on 28th February 1989. However, by filing applications,the period is not extended. The appellant Damodar failedto deposit the money within 5 days and, therefore, Damodarno more remained a successful bidder. His right wasextinguished.”D18. It is clear that the question of paying owelty, or any amount,by any heir, including one who bids successfully for an item, is dependentupon a demandby one or the other heirs. This point was brought home,highlighting the need for making a demand, in another decision of theBombay High Court, i.e., Motibai Sarvotham Pai Cano & Ors. v.EMaria Elsa Do Perpetuo Socorro Mota & Ors.[10] where the courtheld as follows:

“A look at the provision of Article 1417 clearly suggeststhat for failure to pay owelty money the creditor is entitledto legal interest from the date of judgment until recoveryFand is further entitled to register a sort of mortgage in respectof the property when demand is not made. It is thereforeclear that failure to pay money does not bring about thereversion of the property. But, in a case where the demandis made by the person who is entitled to receive owelty andif the same is not paid within three days of the notice ofGdemand, the allotment becomes ineffective and the propertybe put to re-auction and at that re-auction the defaultingparty is not entitled to participate and offer any bid.”

In Ranjit Satardekar v. Clotildes Fernandes it was held asfollows:[11]

“14. In my view, article 2137 of the Civil Code does notconfer any substantive right on a party. It deals with aspectsof procedure regarding payment of auction price. It wascontained in the law enacted in 1867. The C.P.C., as alreadystated, was enforced w.e.f. 1/01/1941 and in the light ofnew provisions having been made subsequently as to whenthe payment is to be demanded and by whom and to whomand the consequences which should follow in case of failureto deposit, the provisions of Article 2137 of the Civil Code,in my view would stand impliedly repealed and substitutedby the provision of Article 1417(c) of C.P.C. Admittedly, theappellants were notified to demand the payment ascontemplated by Article 1417(c) but did not insist that thesame should be made and in the light of that the appellants’challenge to the chart of partition, prima facie, cannot beaccepted. It also does not make much sense that the highestbidder should be asked to deposit the entire price of the bidwhen his own share in the bided property is substantial.The view that the provision of article 2137 of the Civil Codestands impliedly repealed and now article 1417 C.P.C.overrides article 2137 of the Civil Code is a view held bylearned authors Fernando Andrade Pires de Lima and JoaoDe Matos Antunes Varela reproduced herein above. It is alsothe view held by Supreme Court of Portugal in its decisiondated 9/04/1957 in File No. 56.939 wherein the SupremeCourt stated:

‘article 2126 and following of the Civil Code today is in agreat part substituted by the respective provisions of theCode of Civil Procedure’…”

19. This court too has endorsed the view expressed by the BombayHigh Court on the subject, in Baburao Karekar v. Vilas AtmaramBandodkar[12].

11 Civil Application No. 294 of 2007 in First Appeal No. 289 of 2006, decided byBombay High Court on 14.02.200812 (2015) 12 SCC 659

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“II. Article 1417(c) of the Portuguese Code translated byMr M.S. Usgãocar in Family Laws of Goa Daman & Diu ‘(c) Those who have not taken the properties in licitationand who are to be allotted the owelty money due by thosewho were successful in the licitation, shall be notified todemand within three days of the payment, if they so desire.If the demand is made the successful bidder shall be notifiedto deposit the amount failing which the licitation will be ofno effect.

Where the payment is not demanded, the owelty moneyshall earn the legal interest from the date of final judgmentof partition and the creditors thereof may register the legalhypothecation over the properties adjudicated to the debtor.’

III. Comments by noted Portuguese jurist Joao AntonioLopes Cardoso, in his book Judicial Partitions — Theoryand Practice, Vol. 2, Edn. 1955 on Article 1417

‘If the Registry finds, when preparing the chart, thatthe assets taken in the auction exceed the share of therespective interested party, it shall make a memo in the formof a chart stating precisely the amount of the excess. [Article1417 of the Portuguese Code of Civil Procedure]

Thereafter, those who did not offer any bid or ratherthose who receive less, to whom owelty money is due by thehighest bidders or by those who have exceeded theirrespective share, shall be notified to demand the paymentwithin three days, if they so wish.

If they make a demand, the highest bidder or the personwho has been allotted in excess shall be notified to depositthe owelty money under pain of the auction becomingineffective. [Article 1417 clause (c) of the Portuguese CivilProcedure Code.]’”

10. Though the learned counsel for the parties have urgeddifferent meanings to the translated versions to further theirrespective cases, on close scrutiny, we do not find anyvariance in the meanings of the translated provisions of theCode. In fact, according to us, the purport and meaning of

Article 1417(c) is clear and unambiguous. After a chart ofpartition is drawn up and approved by the court, underclause (c) of Article 1417, a duty is cast on the court toidentify all the parties who had not taken part in the familyauction/licitation and ensure service of notice on suchperson(s) so that within 3 days of receipt of such notice, thesaid parties i.e., creditors can raise a demand for payment,if they so wish. Once such a demand is raised the auction-purchaser/successful bidder is duty-bound to pay theamount, failing which the licitation will cease to have anylegal effect. No time-limit for payment by the auction-purchaser is specified. It is in the aforesaid backdrop of theprovisions of the Code that the court will be required toexamine the rival stand of the parties as projected beforeus in the present appeal.

11. Admittedly, in the present case, no notice was issued bycourt to the creditor(s) to raise any demand for payment asrequired under Article 1417(c) of the Code. The High Courthas proceeded on the basis that the reply filed by therespondent before the learned trial court on 26-6-2008constitutes such a demand and further that within 3 daysthereof payment was not made by the appellants therebyvitiating the auction proceedings. Even if we are to proceedon the aforesaid basis insofar as the demand of therespondent is concerned, the alleged failure on the part ofthe appellants to deposit the amount within 3 days couldnot have occasioned a default to vitiate the auctionproceedings, as held by the High Court. Article 1417(c) doesnot contemplate invalidity of the licitation on failure todeposit the amount demanded by the creditor within 3 days.The period of 3 days has been stipulated for raising ademand by the creditor after such creditor receives the noticethat he may raise a demand for payment. If Article 1417(c)is to be read in the manner indicated above we do not seehow the High Court could have held the auction proceedings/licitation to have been vitiated on the alleged failure of theauction-purchaser/appellants to pay the amount within 3days. In any case, the “demand” made in the reply dated AB

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A26-6-2008 is not pursuant to any notice issued under Article1417(c) of the Code.

12. All the above facts lead us to the conclusion that theHigh Court was not correct in holding that in the presentcase the licitation was rendered invalid as there had been aBfailure on the part of the appellant to pay the amountdemanded by the respondent as required under Article1417(c) of the Code. The conclusions recorded by the HighCourt in the impugned order are plainly untenable and wouldjustify interference.”

C20. It is, thus, obvious that upon successfully bidding in an auction,the amount to be paid in by the concerned heir is payable upon a demandby any other heir to such bidder, asking for the amount to be deposited.The limitation period, so to say, is dependent upon the demand so made.The rationale for this rule is that till the amount in excess of such bidder’sshare is not computed, they remain in the dark about the sum to be paid.DIn the present case, it is not disputed by the appellant that such a demandwas not made; the parties were not notified as to the amounts they wereentitled to; or that the respondent did not make the demand. For thisreason, this court is not persuaded by the submissions of the appellant.

21. As far as the rights of Hermano’s heirs to succeed to hisEentitlement to the item bid for is concerned, the appellant’s argumentwas that the right to receive such property was conditional or contingentupon his depositing the entire bid amount; since he did not do so, theheirs cannot inherit some vague inchoate right. A perusal of Article 1737of the Code reveals that it is cast in wide terms; it declares that theF“inheritance” covers “all properties, rights and obligations of theauthor, which are not merely personal or which are otherwiseexcepted by the disposition…” Concededly Hermano was an heir,entitled to a share in the estate of the deceased. Upon his death, thatshare would devolve on the heirs. The question then is whetherHermano’s entitlement to claim a particular item upon payment of owelty,Gwhen demanded, is “property” or a “mere personal right.”

22. What Article 1737 provides for is that inheritance, or the estateof a deceased, comprises of all properties, rights, and obligations whichare not personal or otherwise excepted from disposition. Thus, the conceptof inheritance is wide and embraces all rights and obligations, includingH

property. Now, property itself is a wide term; it includes corporeal andincorporeal property, movables and immovable property, intellectualproperty (which are essentially negative rights, in the form of legalenclosures that the owner is entitled to, to prevent use by others). Rightsand entitlements are even wider concepts. In Vasudev RamchandraShelat v. Pranlal Jayanand Thakar[13] this court approved the viewthat delivery of shares, with share transfer forms, which led to rights toget the shares registered, was property:

“We think that such a right is in itself “property” andseparable from the technical legal ownership of the shares.The subsequent or “full rights of ownership” of shares wouldfollow as a matter of course by compliance with theprovisions of Company law. In other words, a transfer of “‘property” rights in shares, recognised by the Transfer ofProperty Act, may be antecedent to the actual vesting of allor the full rights of ownership of shares and exercise of therights of shareholders in accordance with the provisions ofthe Company law.”

23. The other manner of examining the issue is whether Hermano’srights were “personal rights”. A right to claim specific performance ofan agreement to sell has been held to be a personal right in Umabai &Anr. v. Nilkanth Dhondiba Chavan (Dead) by L.Rs. & Anr.[14] andBhimrao Ramchandra Khalate (Deceased) through L.Rs. v. NanaDinkar Yadav Tanpura & Ors[15]. Similarly, the claim of a trustee againstanother co-trustee is a personal right, per Ashok Kumar Gupta andAnr. v. Sitalaxmi Sahuwala Medical Trust and Ors.[16]; and in AmirthamKudumbah v. Sarnam Kudumban[17], it was held that the right to impeacha sale effected by a minor’s guardian is a personal right vested in theminor which is not transferable.

24. In the present case, it cannot be said that Hermano’s right toparticipate, and claim the specific item of property, at the appropriatestage - when owelty was to be demanded, was a mere personal right,which extinguished upon his death. The entitlement to bid in the licitation 13 1975 (1) SCR 53414 (2005) 6 SCC 24315 2021 (9) SCC 4516 2020 (4) SCC 32117 1991 (2) SCR 389

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Aprocess was not a personal right, but in his capacity as a member of thefamily, of which he had been constituted as the Cabeca de Casal. If allother items are heritable by his heirs and legal representatives (as thereis no dispute that they are, because they step into his shoes) an entirelydifferent conclusion is unsupportable in regard to the item of propertyfor which he bid successfully, but for which no demand was made, forBpayment of any amount. This was because, the final chart of partitioncontaining the excess payments to be made, by one or other members ofthe family had not been prepared; no demand for payment or deposit ofowelty was concededly made by any member of the family. However,that did not mean that the highest bid by Hermano was, in someCinexplicable manner, effaced. His position and right as a successful bidder,and his obligation to pay the concerned amount, when called upon to doso, were heritable by his heirs and legal representatives.

25. For the foregoing reasons, the impugned judgment of the HighCourt is sound. The appeals are therefore, without merit, and,Dconsequently, dismissed without an order on costs.

Ankit Gyan and Anurag Bhaskar(Assisted by : Rahul Kumar, LCRA)

Appeals dismissed.

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