Section 5

Amendment status not verified — confirm the current text below against the official source.

The comunidades and the managing committees shall deliberate or report on proceedings or application that may be presented to them, within the period fixed by the administrator, and the clerk shall return the proceedings, with the copy of the resolution adopted, within three days of the meeting. CHAPTER XIV Appeals or complaints in general Art. 397 – The appeals and complaints against the resolutions of the comunidade or their managing committee, which are within the powers of the administrator to decide and for which no special procedure has been laid down in the Code, shall be filed within ten days from the date on which they become known, if the appellant or complainant has taken part in the resolution or if he has been communicated and in other cases within fifteen days of the resolution. -------108-------- §1. The appeal shall be filed by an application setting the due grounds and submitted, in person or through a legal counsel to the clerk of the comunidade or the secretary of the administration office who shall give a receipt for it, indicating the date of receipt and recording the said date in the margin of the application. §2. The provisions of the preceding paragraph shall apply to the complaints. §3. If the appeal or the complaint is submitted to the clerk of the comunidades, he shall attach to the same, a copy of the impugned resolution contested and the respective documents, specially those mentioned in the appeal, obtaining authenticate copy of the same, if it is not possible to obtain the originals from archives and within three days shall forward it to the president, who shall convene the meeting of the comunidade within three days, following the formalities prescribed in the article 33 and its paragraphs or a meeting of the managing committee depending on whether the appeal or complaint has been filed against the resolution of former or latter, so that they may submit their reply. §4. If the appeal or the complaint is submitted to the secretary of the administration office, he shall annex to the same a copy of the resolution, if it was submitted earlier to the administration office, and other relevant documents in his possession and with the order of the administrator he shall forward it within three days to the clerk of the comunidade for him to follow the procedure prescribed in the preceding paragraph. §5. All the appeals or complaints shall be duly processed. §6. After the appeals or complaint has been forwarded to the administration office, with the reply referred to in the final part of paragraph 3, the evidence shall be led if so applied by the parties, or if the administrator so directs. §7. The files shall be made available to the advocate of the parties, for a period of ten days, for examination only for the purpose of filing arguments, in case a wakalatnama is attached to the file. §8. The attorney of the comunidade shall issue wakalatnama to a lawyer as soon as he comes to know of an appeal against the comunidade and if he has not done so until the file is sent to the administration office, he shall be notified for this purpose, save when there is no need of a lawyer, but in such case the decision shall be communicated personally to the attorney. §9. What is prescribed in the preceding chapter shall be followed in all other matters. Art. 398 – When the appeal or complaint is made to the Governor-General or to the Administrative Tribunal what is prescribed in the Overseas Civil Service Statute and in the Overseas Administrative Reform, respectively shall be followed. Art. 399 – The costs shall be calculated by the secretary of the administration office. Sole § - In case of paragraph 1 of article 394, the costs of the proceedings shall be calculated before forwarding to the higher tutelage authorities and the appellant or the complainant, when is not the comunidade, shall deposit the costs and the stamp duties, failing which the appeal or the complaint shall be dismissed. -------109-------- TITLE III Shares of comunidades CHAPTER I Issue of share certificates Art. 400 – The number of shares of the comunidades and the method of dividing the income of the comunidade and determination of the annual dividend on the same shares is indicated in map No. 8. §1. This map constitutes an extract from the catalogues existing in the various administration offices, where shares certificates and the name of the respective share-holders are registered, besides showing the operations of the same. §2. Each one of these catalogues shall have two alphabetical indexes, the first one pertaining to the names of the share-holders to whom the shares certificates were issued or transferred, and the other pertaining to the names of those in whose favour any pending charges have been recorded. §3. The Catalogues, which in future may be needed in the replacement, shall be organised as per model No. 15. Art. 401– The face value of each share is of 120 $, and its real value is the sum of the last twenty annual dividends. Sole § The share certificate is a printed form, as per model No. 16, and contains handwritten serial number of the title document, its value, the name of the shareholder and that of the comunidade, the number of shares it represents and the date of issue. It shall be signed by the administrator, the president of the managing committee and by the clerk of the comunidade. Art. 402 – Each certificate may represent one or more shares but not more than ten. Art. 403 – The total number of shares issued by each comunidade shall always be divisible by 100. Art. 404 – The certificates of more than one share may be divided, at the request and at the cost of the parties concerned. The new share issued, in lieu thereof, should indicate the same number as those of dividend certificate, followed by alphabetical letters to indicate the new numbering and the order among the shares, at the reverse of each such share, mention shall be made of the charges attached to the original share which, thereafter should be destroyed. Art. 405 – The shares into which the original certificate was divided may again be grouped into a single certificate, at the request and at the cost of the party concerned. To this new certificate the old original number shall be assigned, and the provisions of the preceding article, as regards charges and its destruction, shall be applicable. Art. 406 – The shares certificates of less than ten shares may also be grouped until that number is made up, but in this case the renewal shall be at the cost of the party concerned and the new certificate shall bear the number of the old original certificate. -------110-------- Art. 407 – No stamp duty is payable for the division or grouping of shares certificates. Art. 408 – The issue of new shares, by division of the old certificates, shall be mentioned in the catalogue against the divided share and the new shares shall bear the original number. Art. 409 – The conversion of any alienable interest, when it is not yet done, shall be made in accordance with article 451 and the following ones of the regulations approved by Provincial Notification No. 591, dated 30th October 1886, it being understood that the twenty and twenty five installments provided for in the clauses 2 and 3 of the said article 451 are of the twenty and twenty five years preceding the publication of this Code, and that the divider 10 indicated in the clause 5 of the same article should be considered as 20. CHAPTER II Transfer of shares Art. 410 – The ownership of the shares is transmissible and in order to carry out the operation of the transmission, it is sufficient to indicate on the reverse of the respective share certificate, the name of the transferee with the remarks ―belongs to‖ [pertence]124. Art. 411 – It is not lawful to make the transmission of one share certificate in favour of more than one person, except when they are husband and wife. Art. 412 – In the transmission 125[intervivos, the remark ―belongs to‖ when made in the office of the administration shall be signed before the administrator for the transmitter whose name is found in the original record, or by the transmission by way of ―belongs to‖ subsequently entered and followed by noting of registration of such transmission; when it is not effected before the office of the administration, the signature of the transmitter shall be authenticated by the notary. §1. The regulation of the transmission shall be made according to model No. 18. §2. When the transmitter does not know or cannot sign, the transmitter shall be recorded in the presence of the administrator or public notary when another person signs, at the request of the transmitter, with two witnesses present thereto, but in the second case the public notary shall certify, while attesting the signatures, the presence of the transmitter, in person. §3. The transmission may be signed also by an attorney, with power of attorney given for disposal of movable property, which shall be filed in the administration office, except when it is registered in the respective book of the notary. §4. In the registration of the transmission drawn out in the way provided in this article, the administrator shall declare the manner how the signature was affixed by the tranmitter and authenticated, the name of the notary and the mention of usufruct rights having been reserved, when the transmitter has made such reservations. Art. 413 – In the transmission inter vivos by use of expression ―belong to‖ on the certificate, the kind of contract or ground of transmission may be declared, and in the absence of such a declaration, the transmission shall be deemed to have been done by way of sale. -------111-------- Art. 414 – If the transmission is to operate causa mortis or by act inter vivos, by way of document authentic or authenticated, or by sale effected in inventory proceedings or execution proceedings before the court or administrative proceedings or the establishments of pledge duly authorized or in view of judgment of the court, the expression ―belong to‖ shall be recorded by the administrator and signed by him, with reference to noting of transmission previously made (model No. 18). Art. 415 – The registration [averbamentos]126 of the transmission inter vivos according to the share certificate authenticated in the manner provided in article 412 and its paragraphs shall be made by drawing in the presence of the transmitter and declaration signed by the transferor, or by another person, at the latter‘s request, authenticated by the public notary, as per paragraph 2 of the said article, indicating the number of the shares and of instrument of transmission, the name of the comunidade that has issued and the name and residence of the person in whose name the transmission is done. §1. Such declaration is dispensed with when the transmitter signs the note of the presentation recorded in the entry book, personally or through other person at the request of the former, in presence of two witnesses when the former does not know to sign. §2. If the person who signed the instrument of transmission dies, the declaration referred to in this article shall be done by the person in whose favour the shares have been transferred, who shall declare the names and the addresses of the heirs and its representatives, who shall be given notice to raise any objection within eight days and in event of any objection is filed the party shall be advised to follow the ordinary means in case of a claim. Art. 416 – The registration of transmission, operated by way of a contract contained in an authentic or authenticated document, shall be based on the copy of the deed or of the authenticated document itself, which shall be filed at the administration office. Art. 417 – If the transmission has operated by virtue of judgement of a court of law that has become res judicata or by way of sale, by auction, by award or by remission, in the inventory proceedings, in execution proceedings or establishment of pledge, the registration shall be done on the strength of certificate of auction or certified copy of document recording the transmission, the number of the share certificates or the instrument of transmission, the name of the issuing comunidade or of the share holder to whom the share certificate belongs and that it is free from previous charges. Sole § When the judge in the execution proceedings is the administrator himself, the registration shall be done on the strength of the report of auction and the order which declare the shares is free of charge to the purchaser. Art. 418 – If the transmission has operated causa mortis the annotation shall be done on the strength of the document to prove that the ownership of the share has passed to person who is seeking that the transfer be made in his favour. Sole § When the value of shares transferred in favour of forced heirs or legal heirs does not exceed 1.500 $, the transferees may obtain final entry of transmission in their favour by proving their rights as per paragraphs 1 and 2 of article 25. Art. 419 – The registration of the transmissions shall be made as per model No. 19. -------112-------- Art. 420 – The transmission of shares inter vivos is not liable of payment of tax levied on the successions and gifts, but on the transfer recorded on the reverse of the share certificate inter vivos or causa mortis are liable to pay the stamp duty payable as per the law in force on transmission by way of expression ―belongs to‖. CHAPTER III Creation of charges Art. 421 – The shares certificates of the comunidades may be offered as security for payment or liabilities by way of a pledge]127 or an usufruct]128 and consignment of income]129 only by a shareholder, but who has full ownership of the shares, duly registered. §1. It is not lawful to create charges referred to in this article, by way of notice recording by an act of agreement in the share certificate itself, except for the purpose of creation of usufruct, but it shall be done by a special document or contract following the formalities prescribed in the general law for such cases. §2. It is lawful to make registration of the Civil Suit for recovery of the share certificate of comunidade in order that the judgements become executable against the transferee subsequent to the registration. Art. 422 – Upon the presentation in the administration office the contract or the document wherein the pledge, usufruct or consignment of income is stipulated and the respective share certificates, their presentation shall be noted in accordance with article 433, after the charge is registered, according to model No. 19 and the corresponding record is made on the shares certificates according to model No. 20. Art. 423 – It is lawful to any sharesholders to seek provisional registration of charges in his share certificates registered in his favour. §1. Such registration may be done on the strength of the application of the shareholder, with his signature attested in accordance with article 412 and its paragraph 2, and from there it will be reflected the type of charges to be registered, its terms, the name and residence of the person in whose favour the charge is created. §2. When the shareholder is present or his attorney produces the application and the respective shares, a note will be taken of their presentation in accordance with the article 433, and the respective registration shall lapse, if within 30 days is not converted into final by the person in whose favour the charge is created. §3. The effect of conversion of provisional registration into permanent shall have retroactive effect from the date of presentation of application for provisional registration for the purpose of preference or other legal effects. §4. A shareholder who secure provisional registration may submit an application, in accordance with paragraph 2, requesting for its cancellation, proving by declaration, signed by the person in whose favour the charges was created, with the signature authenticated by the public notary, that the act or contract for whose security the provisional registration was made, was not executed. Art. 424 – The seizure or attachment of shares shall be effected in the administration office, after satisfying that as per the catalogue and the book of annotation, that the respective share certificates are annotated in favour of the person appointed or one authorized by him and which are there charges which burden on them writing the result in the respective record which shall also be signed by the secretary of the administration or his substitute. -------113-------- § 1. In order to effect the attachment in the execution in cases which are pending in the office itself, there is no need of separate warrant. §2. The shares that are issued or carried in the names of other than those indicated as per the writ or warrant shall not be seized or attached. §3. The clerk who effect the attachment or seizure shall remit to the administration office a copy of the respective record, making a necessary note of presentation so that on the base of the same a competent annotation is made. §4. When the seizure is made in pursuance of suits filed in the administration itself, the registration shall be made based on the original report. §5. The clerk of the comunidade or the respective official attaching or seizing the shares shall notify the holder of the certificates of the shares attached or seized, to surrender them in the administration office, within eight days, failing which he shall be liable to be prosecuted for disobedience and thereafter the necessary note shall be made and kept in deposit at the administration office. § 6. When, the shareholder, after the notification referred to in the preceding paragraph, declares that the respective shares are pledged in safe treasury or are in private hands, the administrator shall, in the first case, request the competent entities to forward the respective certificates within eight days and in the latter case, he shall order the issue of the notification to the creditor to surrender the same shares within the same period, to enable to make the necessary note of attachment or seizure of those certificates. The shares thereafter shall remain in deposit in the administration office. §7. If, after seized or attached, those shares are presented in the administration office for any registration, they shall be retained and the necessary note of attachment or seizure shall immediately be made on them (model No. 20). §8. After the annotation of seizure or attachment is made the administrator shall order the clerk of the respective comunidade to retain its dividends in the safe at the disposal of the person who determined the attachment, when this is the case. §9. Once the seizure or attachment is cancelled as result of a judgement or administrative order or on account of the satisfaction of the executive proceedings in the administration office itself, the dividends accrued and accumulated in the safe shall be free to the holder of the seized or attached shares, if nothing is mentioned as regards them in the order or final judgement. §10. If the holder of certificate of shares fails to surrender the same in pursuance to the notification prescribed in paragraphs 5 and 6, and fails to justify its loss or existence in the hands of another person, the administrator shall prepare a report and forward it to the Public Prosecutor in order to impose the penalty to such a possessor for disobedience. He shall consider such certificates cancelled and issue a new ones in the form provided for in No. 2 of article 436. Art. 425 – Action shall be initiated as provided for in paragraphs 5, 6 and 10 of the preceding article in the event when by order or final judgment of the court it is directed that the shares be delivered, on any grounds, to a person other than the possessor and the latter refuses to surrender them even after being notified to this effect. -------114-------- Art 426 – In the execution and other proceedings in which the sale of shares is ordered, the persons in whose favour any charge is registered shall be summoned for the proceedings of the recovery suit or sale and claim their preferential rights in accordance with the general law. §1. The cancellation of seizure and attachment or any other charges on the shares sold shall be made in view of the judgement that declares them free from encumbrances, and as regards the dividends accrued and accumulated in the safe, the final part of paragraph 9 of article 424 shall be observed. §2. In the execution proceedings filed in the administration office itself, the cancellation shall be effected on the strength of the respective proceedings. Art. 427 – The reversion of shares to the original state prior to the creation of any note of charges, shall be made by means of the cancellation of the respective registration of charge (model Nos. 19 and 20). Sole § In the presentation of documents for cancellation and subsequent proceedings, the same rules shall be followed as prescribed for the registration. Art. 428 – The registration or the cancellation of the charge on the shares shall be recorded in the share register book of each comunidade, in the form prescribed in sole paragraph of article 546. CHAPTER IV Common provisions dealing with transfer of shares and creation of charges Art. 429 –The transmission of shares indicating the name of transferee (pertence - belongs to) or any charges created on them shall have no effect at all as far as third parties or comunidades are concerned, before its registration in the administration office. §1. In the transmission of shares, with consignation of usufruct of its dividend, the right to the same starts on the day of the respective registration in the comunidade, except when it is expressly otherwise provided for. §2. Any agreement entered on the same subject shall not be recorded as transferee (pertence) and the document drawn for this purpose shall be produced in the administration office along with the shareholder certificate whereon pertence (belongs to) is considered for the purpose of registration. Art. 430 – The registration of whatever type they may be, will be noted in the catalogue of shares, referred to in No. 9 of article 440, writing thereafter in the index the number of the share certificate registered or in whose favour the charges, are created. Art. 431 – For the purpose of registration of transmissions and of the charges recorded on the shares, there shall be, in the administration office, two books of registration - one meant for registration of transmissions and the other for registration and cancellation of charges. Art. 432 – In order to carry any registration, the following documents shall be produced in the office of administration:- share certificates, along with documents creating security, pledge, usufruct or consignment of the income, and those by which the transmission may be proved. -------115-------- Sole § When the documents are presented by a person, other than the interested party, one more declaration signed by the latter and attested by the public notary, shall be required. Art. 433 – With the presentation of the shares certificates and correlative documents, a note shall be made in the entry book of such presentation, signed by the person who presents them and of the transferor in case of paragraph 1 of article 415, or any other person on his request and two witnesses when the former do not know to sign. §1. The registrations shall be made and preferences regulated, in the order of these entries, if the registration were not refused. §2. A single registration may be made when the presentation refers to the shares of different comunidades. §3. When, on account of insufficiency of documents or defect of the ―pertence‖ (transmission), the registration is refused, the administrator shall issue to the applicant the note of refusal, in order that the latter may file an appeal to the Administrative Tribunal. §4. In case the appeal is allowed, the registration made as a result thereto shall be deemed to have been made on the original date of presentation. §5. Once the registration is refused, due to insufficiency of documents or for irregularity in the annotation of transfer, the annotation cannot later on be allowed based on the same documents or captions ―belongs to‖, except when the applicant clarifies the doubts or obtain favourable decision on appeal. Art. 434 – When the registration of transfer or charges has been made, the administrator shall order to put in the respective shares certificates the necessary captions ―belongs to‖, and sign them with his full name, as per model No. 17 and 19. Art. 435 – The declaration of transferor and the documents based on which the registration was made, shall be filed in the administration office, when the documents are not certified copies from the books of public office. CHAPTER V Reconstruction of share certificates Art. 436 – Share certificates may be reconstructed only on following cases:– 1) In case of destruction, loss or disappearance of the share certificates proved before the administrator, with prior advertisement in the Official Gazette and in a local newspaper inviting, within sixty days, any one who may have interest to take notice of the reconstruction, except when the remains of the destroyed shares certificates are shown to the administrator and thus their identity can be satisfied, in which case no further proof is required; 2) In the cases referred to in paragraph 10 of article 424; 3) When at the back of the certificate there is no sufficient space to make further noting of ―belongs to‖ of transfer and annotation; -------116-------- §1. In any of those cases, the new share certificate shall have the same original number, with the addition of a letter from the alphabet, in due order, and a mention that the certificate has been reconstructed and the charges still in force shall be copied on the back. The original certificate shall be destroyed by the administrator. §2. Whenever a new certificate is issued without the previous one being destroyed, due to refusal to surrender the same or as its disappearance or loss has been proved, the administrator shall announce this fact in the Official Gazette indicating the number of the certificate and that of the share and in whose name it was issued or the last registration of transfer was made. §3. The stamp duty is not payable in case of reconstruction and division of shares. Art. 437 – The share certificate may be reconstructed and divided by those who are interested in the same by applying and paying its expenses. CHAPTER VI Prescription of shares in favour of Comunidades Art. 438 – The comunidade acquires shares of the comunidade by prescription if the dividends are not claimed for thirty consecutive years. Sole § On expiry of this period, the administrator, having complied with the formalities prescribed in paragraph 1 of article 25, shall order their registration in favour of the comunidade, when there is no complaint, or when the claimer, having been advised to take up ordinary means, fails to initiate competent action within thirty days, with service of summons on the comunidade, in order to establish ownership. Art. 439 – The suit for cancellation of the annotation of transfer of shares of comunidades is barred after the lapse of fifteen years from the date of annotation, if the person registered had collected the dividends and is in good faith, or after thirty years irrespective of good or bad faith. Title IV Book-keeping and accounts CHAPTER I Book-keeping and accounting of the administration of Comunidades Art. 440 – At each administration of comunidades the following books, for general office work, shall be supplied from the general fund:–