Viegas Vs. Estrelina Mariana R.M.A.Da'costa & Ors  Insc 259 (7 May 2002)
Babu & Ruma Pal Rajendra Babu, J. :
brief facts giving rise to this appeal are as follows :
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.
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.
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.
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.
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.
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.
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.
this basis, he allowed the appeal.
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.
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:
Margin: No.78 Maria Graca Albertina daughter of Roza Maria Anna Fonseca, from Gally.
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
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.
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.
RAJENDRA BABU ] ...J.
PAL ] MAY 7, 2002.