Conviviality demands that comunidades be preserved in their original form as feudalistic institutions based on community values.
Justice M S Sonak of the High Court of Bombay at Goa vide a common judgment while disposing four Writ Petitions on April 13, 2023, observed: at para 79: In Raghupati Bhandari v/s Communidade of Bandora & Ors (supra), the Division Bench referred to the views of Serra e Moura, a commentator on Portuguese Law:-
“To raze to the ground that centuries-old edifice with a hammer of destruction, is easy. But, to raise on its ruins a more perfect and better-finished work, a work resulting in greater glory to the architect and greater advantage to the inhabitants of the villages, is a very difficult task.”
Incidentally, the decidendi in the same judgment is worthy of reiteration: at para 78: In the present petitions, unfortunately, the petitioners who are influential persons virtually governing the affairs of the comunidade, have encroached on the comunidade property and have even succeeded in retaining the encroached portions for all these years. All this is extremely unfortunate. Yet, the attorney for the comunidade stated that the actions of the managing committee which comprises of (a person) who has admittedly encroached upon the comunidade land and held on to the same for all these years without the authority of law, were to be seen in the “interest of the comunidade.”
But the afore-stated judicial observations are only meant to give effect to the following ideal reflected in the same judgment, which can be seen at para 77: The Supreme Court has observed that courts cannot be oblivious that there has been a steady decline in public standards or public morals and public morale. It is necessary to cleanse public life in this country along with or even before cleaning the physical atmosphere. The pollution in our values and standards is an equally grave menace as the pollution of the environment. Where such situations cry out the courts should not and cannot remain mute and dumb. (See Shivajirao Nilangekar Patil v Mahesh Gosavi, 1987-1 SCC227).
Conversely, it would be apt to explore unfortunate scenarios wherein the comunidades have deliberately stood in the way of Grantees of Aforamentos from redeeming their bona fide rights, title and interest to the lands conferred upon the said grantees subsequent to payment of the stipulated foros.
The erudite M S Usgaocar in drawing a distinction between “arrendamento” and “aforamento” in the ‘authentic translation’ of the Code of Comunidades, has enumerated: d. In case of “aforamento”, after passage of 20 years, the foro is may be redeemed by payment of 20 years of instalments and one more additional instalment if leviable and with such payment both the interest, dominium directum merge into dominium utile and the contract of emphyteusis comes to an end and the grantee becomes full-fledged owner.
e. “Arrendamento” can be terminated; “aforamento” cannot be terminated even on account of non-payment of foro. The right of the grantor is only to recover the foro of last 5 years.
f. In case of “aforamento” the grantee is entitled to gift, mortgage the property, the transferee being subject to payment of foro.
And what is truly interesting is that the translation of the code was first published by the Government Printing Press in June 2012.
But the High Court of Bombay at Goa in reprising its role as the sentinel of correctly interpreting the Indo-Portuguese Laws had on January 12, 2012, passed a judgment against the comunidade of Balli, Quepem which serves as the clarificatory precedent on the point of whether comunidades can interfere in the enjoyment of rights by the grantee after the dominium utile (i.e. the possessory title) has passed onto the grantee from the grantor consequent to payment of all the foros.
In that Judgment, Justice U V Bakre of the High Court of Bombay at Goa observed: at para 15: Article 549 of the Code of Comunidade requires a Book known as “Tombo 1” to be used for the inscription of the rural, urban and barren lands of the comunidade, their measurements and land-marks, for the description of the sources of income of the comunidade other than from private lands and for the registration of the deeds of identification, description and demarcation of the marginal lands of the roads and the paddy fields, exclusively reserved for the constructions and of the lands capable of being brought under the plough at the cost of the comunidade. This book has to be accompanied by plans. Under Article 551 of the Code of Comunidade, a book called “Tombo 2” should be used for the description of the tributary lands of the comunidade or those subject to any definite contribution. These are the title documents of the comunidade… at para 20: First of all, what is produced on record by the Attorney of the appellant (Comunidade) is only the index of land in form No. III pertaining to survey no.56 which shows the name of the appellant in bracket… at para 25: The respondent no. 1 has produced the Sale Deed dated 3/8/1892 in respect of the property “Bullobeachy Fondy”, the Land Registration document of the same property bearing no. 3452 and the Matriz certificate of no. 139. He has produced the family tree and various documents to trace his relationship with the purchaser named in the sale deed. The boundaries in all three documents namely Sale Deed, Land Registration and Matriz, substantially tally… at para 27: Learned Advocate, on behalf of the respondents, has relied upon the judgments of the learned single Judge of this High Court wherein it has been held that in terms of Article 953 of the Portuguese Civil Code, the Inscription in the Registration of a title of conveyance without condition precedent, involves, irrespective of any other formality, the transfer of possession in favour of a person in whose favour such inscription has been done. The Land Registration document, therefore, proves title as well as possession.
At para 28: The respondents … have therefore produced cogent evidence thereby establishing better title to the acquired land, as compared to the appellant (Comunidade).
