- (1.)This appeal arises out of judgment and order of the High Court by which the decision made by the learned Trial Court on 20.07.2009, directing the Respondent herein to vacate and hand over possession of the suit scheduled property to the Appellant on payment of Rs. 18,30,378/- along with interest at the rate of 6%, has been reversed. The relevant facts that will be required to be noticed for the present adjudication may be very briefly noted at the outset.
(2.)The property consisting of a house/building which is the principal bone of contention between the parties belonged to one Atmaram and Premavati. Following the death of the aforesaid owners, inventory succession proceedings were initiated in the year 1989 by the Respondent, who is one of the sons of the deceased and was appointed as an Administrator of the Estate of the deceased. The succession proceedings were governed by the Portuguese Code of Civil Procedure (hereinafter referred to as "the Portuguese Code") which required the property to be put up for family auction/licitation. In the said family auction no outsider and only the family members are allowed to participate. The deceased couple had three sons and two daughters. The auction amongst the children of the deceased was held on 27.06.2007 and the Appellant No. 1 was the highest bidder by offering an amount of Rs. 47,00,500/-. The Respondent, admittedly did not bid. Thereafter, as required, the chart of partition setting out the total value of the inheritance; the value of the share of the parties and the owelty money payable by the highest bidder was drawn on 04.09.2007 and the final order of the Court approving the same was made on 02.10.2007.
(3.)It is the contention of the Mr. M.B. Da Costa, learned Senior counsel appearing for the Appellants that the owelty money due to the other heirs was paid except to the Respondent who refused to vacate the house and to accept his share of the owelty money (which was a larger share because of the mother's Will dated 14.09.88 in his favour). In these circumstances, the Appellants had made an application to the Court on 14.01.2008 seeking a direction to the Respondent - Vilas Atmaram Bandodkar to accept the owelty money and to vacate the house property. In response to the said application the Respondent filed a reply on 26.06.2008 seeking the following directions:
"1) The auction purchaser i.e. Appellant No. 1 should produce receipts of owelty money paid to other legal heirs.

2) A demand draft of Rs. 18,30,378/- be tendered to the Respondent or the amount be deposited."