Summary
In Goa inventory proceedings under the Portuguese Civil Procedure Code to partition the estate of a deceased couple, Hermano, an heir and the Cabeça de Casal, was the highest bidder for one property at a 2005 licitation, a closed auction among heirs. He died in 2008 without depositing anything. No chart of partition had yet been drawn and no demand for owelty had been made. The appellant sought a fresh licitation. The inventory court ordered re-auction, but the District Judge and the High Court held that Hermano's rights as successful bidder passed to his heirs. The Supreme Court dismissed the appeals. Under Article 1417(c), the obligation to deposit owelty arises only on a demand after the chart of partition is prepared, and none had been made. Under Article 1737, a successful bidder's position is not a merely personal right and is inherited.
Issues
- Whether a licitation is rendered ineffective when the successful bidder dies without depositing the bid amount before any chart of partition or demand for owelty under Article 1417(c)
- Whether a successful bidder's rights and obligations in a licitation devolve on his heirs under Article 1737 or are merely personal rights extinguished by death
Provisions considered
- Article 1417(c), Portuguese Civil Procedure Code (as applicable in Goa)After the chart of partition shows the excess, the other heirs are notified to demand owelty. Only on default following such a demand does the licitation become ineffective, and no demand had been made here. (¶¶ 14, 17, 18, 19, 20)
- Article 1737, Portuguese Civil Code (as applicable in Goa)The inheritance comprises all properties, rights and obligations of the deceased that are not merely personal. A successful bidder's right to the item, with the obligation to pay owelty when demanded, is heritable. (¶¶ 14, 21, 22, 24)
- Section 5(1), Goa, Daman and Diu (Administration) Act, 1962The Portuguese Code continued in force as law in Goa after its integration into the Union. (¶ 3)
Held
- Inventory proceedings are not adversarial. Indivisible properties are licitated among heirs, the chart of partition then fixes each share, and those who take properties in excess of their share must pay owelty to equalise the shares. Payment by a successful bidder becomes due only on a demand by an heir entitled to owelty after notice under Article 1417(c), because until the excess is computed the bidder cannot know the sum payable (Baburao Karekar). (¶¶ 15, 16, 18, 19, 20)
- Since no chart of partition had been drawn and no demand made, Hermano's failure to deposit did not render the licitation ineffective. The earlier abortive licitation of the same item, where a demand had followed, did not help the appellant. (¶¶ 6, 20, 24)
- Rights such as a claim to specific performance or to impeach a guardian's sale have been held personal, but a successful bidder's position in a family licitation is held in his capacity as an heir and member of the family. That position, and his obligation to pay owelty when called on, passed to his heirs and legal representatives under the wide terms of Article 1737. (¶¶ 21, 22, 23, 24)
Result
Appeals dismissed. The High Court's judgment, holding that Hermano's rights as successful bidder devolved on his heirs and refusing re-auction, was upheld; no order as to costs.