CASE NO.: Appeal (civil) 3476 of 2001 PETITIONER: LUIS CAETANO VIEGAS Vs. RESPONDENT: ESTRELINA MARIANA R.M.A.DA'COSTA & ORS. DATE OF JUDGMENT: 07/05/2002 BENCH: S. Rajendra Babu & Ruma Pal JUDGMENT:
RAJENDRA BABU, J. :
The brief facts giving rise to this appeal are as follows :
Rosa Fonseca had married Antonio D’Costa on 15.4.1889 and a
male child Jose Philipe was born to them. The said Antonio D’Costa died
in 1892, and almost seven years after his death, his wife Rosa Fonseca
gave birth to a daughter in 1899. On 21.2.1903, the baby girl was
baptised and named Maria Da Graca Albertina Luiza Fonseca and the
date and time of her birth were recorded in the Parochial Book of Records
of Baptism of the Taleigao Church. The names of the maternal
grandparents were mentioned and the godfather and godmother also
signed the register respectively. In 1933, the daughter Maria Fonseca
married Camilo Viegas and in 1935 the appellant was born out of this
wedlock. Their marriage certificate dated 4.5.1933, stated that Maria
Fonseca was an illegitimate child and only mentioned the name of the
mother. In 1952, Rosa Fonseca, the grandmother and in 1967 Maria
Fonseca, the mother died.
In 1985, the appellant filed inventory proceedings for partition of
inheritance of Rosa Fonseca and Antonio D’Costa in the Court of Civil
Judge [Senior Division]. The locus standi of the appellant was
challenged by the Cabeca-de-Casal [Head of family] on the ground that
the appellant is not an heir of the deceased person Rosa Fonseca. The
inventory proceedings were restricted to the estate of Rosa Fonseca only
making her the sole inventariado in the matter.
The Trial Court decided that the said proceedings were not
maintainable and an appeal against the order of the Trial Court was
preferred in the High Court of Bombay at Panaji. The High Court set
aside the order of the Trial Court and remanded the matter for dealing
with it afresh. On remand, the Trial Court passed an order observing
that Maria Fonseca had not been legitimised as per law and she had no
right to the estate of Rosa Fonseca. The same issue came up in appeal
before the High Court in appeal No.34/1996 wherein the High Court
once again remanded the matter to the Trial Court, directing that the
arguments of the appellant must be taken into account for deciding the
case. After remand, on the second occasion, the Trial Court by an order
dated 4.9.1999 rejected the challenge to locus standi of the appellant
and observed that the appellant was entitled to participate in the
inheritance proceedings to the estate of Rosa Fonseca. Challenging this
order, the respondents filed an appeal, before the Additional District
Judge, North Goa, who held by an order made on 20.7.2000 that there
was no proper legitimation of Maria Fonseca and hence, the appellant is
not an heir.
On 30.8.2000, the appellant filed a writ petition in the High Court
challenging the order of the Additional District Judge dated 20.7.2000.
The High Court by an order made on 9.11.2000 dismissed the writ
petition and upheld the order of the Additional District Judge. Hence this
appeal by special leave has been preferred against the order of the High
Court dated 9.11.2000 dismissing the writ petition.
The question that needs to be decided is whether Maria Fonseca
was legitimized by her mother, Rosa Fonseca. For this purpose, the
appellant produced the birth certificate of his mother Maria Fonseca
issued by the Directorate of Archives, Panaji, which was based on the
baptism certificate issued by the local church. The Trial Court held that
Maria Fonseca was baptized on 21.2.1903 at home as she was ill and her
life was at peril; that she was born on 15.4.1899 at 3.00 a.m. of an
unknown father and the mother is Rosa Fonseca; that this was enough
to hold that she was legally recognised; that the baptism certificate
recorded the names of the mother, grandparents and godparents; but it
was questioned on the ground that it did not contain mother’s signature
throwing doubt as to whether she had consented to the ceremony of
legitimizing her daughter; that the respondents also failed to bring any
evidence to counter the natural presumption of the presence of the
mother Rosa Fonseca at the time of baptism. Hence the Trial Court
allowed the claim of the appellant.
In appeal the learned District Judge held that in order to solemnize
baptism, the names of God parents should be entered in the record and
the presence of either of the God parents is absolutely necessary and
should be signed by the Parochial Authority; that, the baptism certificate
relied upon by the appellant does not indicate that both or either of the
God parents were present in proof of which their signatures were taken;
that, baptism certificate could not be relied upon; that, the birth
certificate proceeds on the basis of baptism certificate, which is not valid;
that, thus there is no legal recognition of legitimacy by any proper deed.
On this basis, he allowed the appeal.
In the writ petition, the High Court without assigning any separate
reasoning held that the District Judge took into consideration the entire
material on record and on proper application of law rejected the case of
the appellant and dismissed the writ petition.
What we have to see in this matter is whether the test indicated by
the learned District Judge has been complied with by the parties
concerned. A true translation of the birth certificate is made available
and reads as follows:
“In Margin: No.78 Maria Graca Albertina daughter of Roza Maria
Anna Fonseca, from Gally.
In the Text: On the twenty-first day of the month of February in
the year one thousand nine hundred and three in this Parish
Church of Taleigao, Taluka islands of Goa (Tiswadi), of the
Archdiocese of Goa, with my permission, Fr.Floriano Jose
Joaquim Joao Fernandes, resident of this locality, put the holy oils
on a person of female sex as she had been duly baptised in home
because she was in peril of her life by Francisco Xavier Raymando
Fernandes, former Curate of this Parish, with the name Maria
Graca Albertina Luisa who was born in the ward Gally of this
Parish at three hours of the morning of the fifteenth day of April in
the last year (sic) one thousand eight hundred ninety-nine free
legitimate daughter, second in the order of children and the only
one with this name, I mean daughter of unknown father and of
Roza Maria Anna Fonseca, native of Parra and resident of
Taleigao, widow, landed proprietor whose income does not amount
to three hundred “reis” per day, paternal (sic) grand-daughter of
Paulo Antonio de Fonseca and of Maria Angelica Fernandes, both
natives of Parra. Her godfather was Antonio Augusto Milares da
Piedade Lobo, bachelor, Land Surveyor, resident of Santo Estevao
and godmother Monica Maria Eulalia Francisco Gomes,
unmarried, native of Ucassaim represented in this act by Maria
Francisca Gonsalves, unmarried, from Taleigao, all of whom I
acknowledge them as proper persons. And to be known I made
this record in duplicate which, after it was read and checked
before the godparents, I sign it along with them. Date as
mentioned above, Correction follows sd/- Ant.Augt. Milagres da
P.Lobo. Sd/- Maria Francisca Xavier Gonsalves. The parson sd/-
Fr. Jose Lourenco de Silva.”
The underlined portion stated above clearly indicates that the
baptismal record was read and checked before the godparents, and the
same has been signed by the Parson along with them. The learned
District Judge felt that the certificate of registration of birth merely
proceeds on the basis of the baptism certificate. If the birth certificate is
a true reflection of the baptism record and it contains the fact that it was
read and checked before the godparents, the same need not be discarded
and it must be held that the same had been made in the presence of both
god parents. In that view of the matter, the Trial Court was justified in
the conclusion it reached and not the learned District Judge who
proceeded on misreading of the record. Hence the High Court ought to
have reversed the finding recorded by the learned District Judge who
ignored this crucial aspect in the course of his order.
In the result, we set aside the order made by the High Court and
the order of the learned District Judge while restoring the order made by
the Trial Court. Appeal is accordingly allowed. No costs.
…J.
[ S. RAJENDRA BABU ]
…J.
[ RUMA PAL ]
MAY 7, 2002.
