REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7378 OF 2010
JOSE PAULO COUTINHO …APPELLANT(S)
Versus
MARIA LUIZA VALENTINA
PEREIRA & ANR. …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
1. “Whether succession to the property of a Goan situate
outside Goa in India will be governed by the Portuguese Civil
Code, 1867 as applicable in the State of Goa or the Indian
succession Act, 1925” is the question which arises for decision in
this appeal.
2. One Joaquim Mariano Pereira (JMP) had three daughters
viz., (1) Maria Luiza Valentina Pereira (ML), Respondent No.1 (2)
Virginia Pereira and (3) Maria Augusta Antoneita Pereira
Fernandes. He also had a wife named Claudina Lacerda Pereira.
1
He lived in Bombay and purchased a property in Bombay in the
year 1955. On 06.05.1957 he bequeathed this property at
Bombay to his youngest daughter, Maria Luiza Valentina Pereira,
Respondent No.1. He bequeathed Rs. 3000/ each to his other
two daughters. His wife expired on 31.10.1960 when he was still
alive. JMP died on 02.08.1967. The probate of the Will dated
06.05.1957 was granted by the High Court of Bombay, at Goa on
12.09.1980. Both the other daughters were served notice of the
probate proceedings.
3. Goa was liberated from Portuguese rule on 19.12.1961. An
ordinance being The Goa, Daman and Diu (Administration)
Ordinance was promulgated on 05.03.1962 and thereafter the
Goa, Daman and Diu (Administration) Act, 1962 was enacted,
hereinafter referred to as ‘the Act of 1962’. Both the Ordinance
as well as the Act of 1962 provided that the laws applicable in
Goa prior to the appointed date i.e., 20.12.1961 would continue
to be in force until amended or repealed by the competent
legislature or authority. Section 5 of the Act of 1962 which is
relevant for our purpose reads as follows:
“5. Continuance of existing laws and their adaptation. (1) All
laws in force immediately before the appointed day in Goa,
Daman and Diu or any part thereof shall continue to be in
2
force therein until amended or repealed by a competent
Legislature or other competent authority.
(2) For the purpose of facilitating the application of any such
law in relation to the administration of Goa, Daman and Diu
as a Union territory and for the purpose of bringing the
provisions of any such law into accord with the provisions of
the Constitution, the Central Government may within two
years from the appointed day, by order, may (sic make) such
adaptations and modifications, whether by way of repeal or
amendment, as may be necessary or expedient and thereupon,
every such law shall have effect subject to the adaptations and
modifications so made.”
4. It is not disputed before us that the Portuguese Civil Code,
1867 (hereinafter referred to as ‘the Civil Code’) as applicable in
the State of Goa before its liberation in 1962 would apply. The
Civil Code is in two parts – one part deals with all substantial
civil laws including laws of succession and the other part deals
with procedure. As far as the present case is concerned, the
parties are ad idem that in so far as the succession to the
properties in Goa is concerned, they are governed by the Civil
Code. The main dispute is that whereas the appellant, who is
one of the legal heirs of the daughters of JMP, claims that even
the property of JMP in Bombay is to be dealt with under the Civil
Code, the case of the respondent i.e., the daughter who was
bequeathed the property in Bombay, is that as far as the
immovable property situate outside Goa in any other part of India
3
is concerned, it would be the Indian succession Act, 1925 which
would apply.
5. It would be apposite to digress a little and refer to certain
provisions of the Civil Code in relation to succession. Succession
is governed under Title II, Chapter I of the Civil Code. Under the
Civil Code1
, a person cannot dispose of all his property by way of
Will. There are two portions of the property – one which can be
disposed by Will, Gift, etc. and the other which is the
indisposable portion in terms of Article 1784 of the Civil Code
which reads as follows:
“Legitime means the portion of the properties that the testator
cannot dispose of, because it has been set apart by law for the
lineal descendants or ascendants.
Sole paragraph: This portion consists of half of the properties
of the testator, save as provided in Clause2 of Article 1785
and Article 1787.”
6. Normally, if a person has children or parents, he can only
dispose of half of the property by will or gift and the remaining
property has to be allotted to his heirs whether ascendants or
descendants in the shares laid down in the Civil Code. Where a
person has no children or where he leaves behind illegitimate
1 In this judgment, the articles of Portuguese Civil Code have been quoted from the
translation of the Code made by Manohar Sinai Usgaocar, Senior Advocate, Civil Code in
Goa, First Edition, 2017, Vaikuntrao Dempo Centre for Indo Portuguese Studies. The
wording in a translation made by the Government of Goa in some articles is slightly
different but the meaning is the same and that has no impact on the judgment in hand.
4
children or the deceased leaves behind only ascendant heirs who
are not the parents then the indisposable portion is less than
half. The Code provides that the estate of every person can be
divided into two parts – one which he can dispose of by
testamentary disposition and the other which he cannot dispose
of. The second part which he cannot dispose of has to be
inherited by the heirs in the shares as laid down in the Civil Code
and this part which cannot be disposed, is called legitime. This
legitime is destined for the heirs in the direct ascending or
descending line.
7. Another interesting aspect of the Civil Code is that after the
death of a person, inventory proceedings are started wherein the
entire properties (both movable and immovable) and liabilities of
the deceased are inventorised. In these proceedings normally one
of the eldest members of the family is appointed as Cabeca de
Casal, i.e. the administrator. The administrator is required to
prepare an inventory of all the properties of the deceased. Once
the properties of the deceased are inventorised and evaluated,
these have to be shared in accordance with the shares laid down
in the Civil Code. In case the deceased had made some
5
testamentary bequests, then those bequests are to be adjusted
against that portion of the estate which was not the legitime. As
pointed above, only half of the total property could be bequeathed
and any bequest in excess of half would not be a valid bequest.
8. As far as the present case is concerned, inventory
proceedings under the Civil Code were initiated for the properties
of JMP. On 27.04.1981 his daughter Virginia Pareira was
appointed as Cabeca De Casal (administrator). She prepared the
inventory of the properties and in these proceedings the house in
Bombay which had been bequeathed in favour of the respondent
no.1 was listed at Sl.No.8. The respondent objected to the
inventory on the ground that the property situated at Bombay
was not governed by the inventory proceedings. Thereafter,
Virginia Pareira died. Then respondent no.1 was appointed as
administrator. She filed a fresh list of properties and excluded
the property at Bombay. The appellant, who is one of the legal
representatives of Virginia Pareira filed objections to the removal
of the property at Bombay from the inventory and sought the
inclusion and valuation of the said property to work out what
was the disposable portion and what was the legitime. The
6
inventory court vide order dated 09.03.1998 held that the
property at Bombay was to be excluded from the list of assets in
the inventory proceedings at Goa. Thereafter, the appellant filed
an appeal in the High Court of Bombay, Goa Bench. However, he
withdrew the appeal with liberty to file a fresh application before
the inventory court for inclusion of these assets. He filed this
application and the inventory court on 15.10.1999 allowed the
application and held that the property at Bombay should be
included in the list of assets. Respondent no.1 and her husband
(respondent no.2) challenged the said order of the inventory court
before the High Court of Bombay, Goa Bench. This appeal was
allowed on 08.08.2008. The High Court vide the impugned
judgment held that in view of the provisions of the Indian
Succession Act, 1925 especially Section 5 thereof, the Civil Code
would not apply in so far as the property situate outside Goa in
other parts of India are concerned. Hence, this appeal by the
appellant.
9. At this stage, it would be pertinent to mention that in the
meantime, a similar question was referred to a Division Bench of
the Bombay High Court, Goa Bench. The Division Bench in the
7
case of A.P. Fernandes vs. Annette Blunt Finch and others2
came to the conclusion that the judgment of the learned Single
Judge which is impugned in the present appeal did not lay down
the correct law and that the Civil Code would apply even to the
property situate outside Goa.
10. Shri Devadatt Kamat, learned senior counsel appearing on
behalf of the appellant, submits that though we may be sitting as
Judges of the Supreme Court of India, we will have to apply the
Portuguese Law as applicable to the domiciles of Goa. He further
submitted that since Portuguese law is applicable, the principles
of private international law would apply. He invoked the doctrine
of renvoi to urge that since the citizens of Goa were governed by a
foreign law, this Court would apply the foreign law to the citizens
of Goa. He further submitted that under the Portuguese law
there is principle of unity of succession of the property of a
deceased Portuguese citizen whether situated within or outside
the country, which are to be included for the purpose of
inventory proceedings. He also urged that Article 24 of the Code
was not applicable and, in fact, the applicable articles were
Articles 1737, 1784 and 1961. According to him, the judgment of
2 2015 (6) Mh.L.J. 717
8
the learned Single Judge does not lay down the correct law and
the judgment of the Division Bench should be approved. He also
submitted that the grant of probate of the Will does not ipso facto
lead to the conclusion that the Will is valid. Lastly, it is
contended that Section 5 of the Indian Succession Act has no
application to the present case.
11. On the other hand, Shri Yashraj Singh Deora, learned
counsel for the respondent nos. 1 and 2 urges that the
Portuguese Civil Code would apply only in the territory of Goa
and would have no extraterritorial application over immovable
properties situated outside the State of Goa. He also submitted
that the property at Bombay would be governed by the provisions
of the Indian Succession Act and in terms of Section 5 thereof.
According to him, Article 24 of the Civil Code relates only to
properties ‘situated in the kingdom’. It is lastly submitted that
the common law principle of lex rei situs would apply in the case
of immovable properties. Therefore, the law in force at the place
where immovable property is situated should apply. He further
submits that the Civil Code would only apply to the properties
within the State of Goa and not beyond. Lastly, it is contended
9
that the probate of the Will, wherein the petitioner had
participated, is a final adjudication determining the rights of the
parties.
12. According to us, the following issues arise for determination:
I. Whether the Portuguese Civil Code can be said to be a
foreign law and the principles of private international law
are applicable?
II. Whether the property of a Goan domicile outside the
territory of Goa would be governed by the Code or by
Indian Succession Act or by personal laws, as applicable
in the rest of the country e.g. Hindu Succession Act,
1956, Muslim Personal Law (Shariat) Application Act,
1937, etc.?
III. What is the effect of the grant of probate by the Bombay
High Court in respect of the Will executed by JMP?
I. Whether the Portuguese Civil Code can be said to be a
foreign law and the principles of private international law are
applicable?
10
13. The territories forming part of Goa, Daman and Diu were
part of the kingdom of Portugal. They were annexed by the
Government of India by conquest on 20.12.1961 and became a
part of India by virtue of Article 1(3)(c) of the Constitution. After
acquisition by conquest, these territories became part and parcel
of India, that is Bharat. As pointed out earlier, for making
provision for administration of the said territories, the President
of India, exercising powers vested in him under Article 123(1) of
the Constitution on 05.03.1962 promulgated an Ordinance called
the Goa, Daman and Diu (Administration) Ordinance, 1962. This
Ordinance was replaced by an Act of Indian Parliament known as
The Goa, Daman and Diu (Administration) Act, 1962, which
came into effect from 05.03.1962. On the same day, the
Constitution was amended by the Constitution (12th Amendment)
Act, 1962 whereby Goa, Daman and Diu were added as Entry 5
in Part II of the First Schedule to the Constitution with
retrospective effect from 20.12.1961. These territories of Goa,
Daman and Diu were also included in clause (d) of Article 240(1)
of the Constitution with effect from 20.12.1961. Thus, it is more
than apparent that Goa, Daman and Diu became an integral part
of India as a Union Territory of India with effect from the date of
11
its annexation by conquest. Goa became a fullfledged State in
1987.
14. The Civil Code may be a Code of Portuguese origin but after
conquest and annexation of Goa, Daman and Diu, this Code
became applicable to the domiciles of Goa only by virtue of the
Ordinance and thereafter, by the Act. Therefore, the Civil Code
has been enforced in Goa, Daman and Diu by an Act of the
Indian Parliament and thus, becomes an Indian law. This issue
is no longer res integra.
15. A Constitution Bench of this Court in Pema Chibar vs.
Union of India & Ors.
3
, was dealing with a case wherein the
petitioner had obtained licences for import of goods of the value
of more than one million pounds. Though the orders for import
of the goods to Goa were placed before 20.12.1961, the goods did
not reach Goa by the said date. Thereafter, the petitioner applied
for renewal of the licences and claimed that the Indian
Government was bound by the licences granted by the earlier
rulers. This Court held that once a property is taken over by
conquest, the new sovereign (namely, the Government of India)
3 AIR 1966 SC 442
12
would not be bound by the acts of the old sovereign except where
it recognised such rights. Reliance was placed by the petitioner
on the Ordinance and the Act, referred to above. Rejecting the
contention, this Court held as follows:
“8. But this is not all. The Ordinance and the Act of 1962 on
which the petitioner relies came into force from March 5, 1962.
It is true that they provided for the continuance of old laws but
that could only be from the date from which they came into
force, i.e., from March 5, 1962. There was a period between
December 20, 1961 and March 5, 1962 during which it cannot
be said that the old laws necessarily continued so far as the
rights and liabilities between the new subjects and the new
sovereign were concerned. So far as such rights and liabilities
are concerned, (we say nothing here as to the rights and
liabilities between subjects and subjects under the old laws),
the old laws were apparently not in force during this
interregnum. That is why we find in S. 7 (1) of the Ordinance,
a provision to the effect that all things done and all action
taken (including any acts of executive authority, proceedings,
decrees and sentences) in or with respect to Goa, Daman and
Diu on or after the appointed day and before the
commencement of this Ordinance, by the Administrator or any
other officer of Government, whether civil or military or by any
other person acting under the orders of the Administrator or
such officer, which have been done or taken in good faith and
in a reasonable belief that they were necessary for the peace
and good Government of Goa, Daman and Diu, shall be as
valid and operative as if they had been done or taken in
accordance with law. Similarly, we have a provision in S. 9(1)
of the Act, which is in exactly the same terms. These
provisions in our opinion show that as between the subjects
and the new sovereign, the old laws did not continue during
this interregnum and that is why things done and action taken
by various authorities during this period were validated as if
they had been done or taken in accordance with law. A doubt
was raised as to the power of the Military Governor to issue a
proclamation like the one he did on December 30, 1961, to
which we have already referred. That doubt in our opinion is
cleared by these provisions which make all such orders as if
they had been made in accordance with law. The
proclamation of December 30, 1961 which clearly showed
what kind of import licences would be recognised must be held
13
to be in accordance with law and that means that no imports
were recognised except those covered by the proclamation.”
We are aware that the Court did not say anything with regard to
the rights and liabilities between subjects and subjects under the
old laws and kept that question open. We shall deal with this
aspect later.
16. A threeJudge Bench of this Court in Vinodkumar
Shantilal Gosalia vs. Gangadhar Narsingdas Agarwal4 was
dealing with the question as to whether the respondent no.1
before it had acquired the right to obtain a mining lease from the
Portuguese Government, and, if so, whether after the annexation
of Goa, the Government of India recognised that right and,
therefore, was bound to grant a mining lease to respondent no. 1
in terms of the application made by him to the Government of
Portugal. The Court made the following pertinent observations:
“17. …it is necessary to reiterate a wellsettled legal position
that when a new territory is acquired in any mannerbe it by
conquest, annexation or cession following upon a treatythe
new “sovereign” is not bound by the rights which the residents
of the conquered territory had against their sovereign or by the
obligations of the old sovereign towards his subjects. The
rights of the residents of a territory against their state or
sovereign come to an end with the conquest, annexation or
cession of that territory and do not pass on to the new
environment. The inhabitants of the acquired territory bring
with them no rights which they can enforce against the new
state of which they become inhabitants. The new state is not
required, by any positive assertion or declaration, to repudiate
4 (1981) 4 SCC 226
14
its obligation by disowning such rights. The new state may
recognise the old rights by regranting them which, in the
majority of cases, would be a matter of contract or of execution
action; or, alternatively, the recognition of old rights may be
made by an appropriate statutory provision whereby rights
which were in force immediately before an appointed date are
saved...”
Analysing the judgment of the Constitution Bench in Pema
Chibar case (supra), it was held as follows:
“28. The decision in Pema Chibar (supra) is an authority
for four distinct and important propositions: (1) The fact that
laws which were in force in the conquered territory are
continued by the new Government after the conquest is not by
itself enough to show that the new sovereign has recognised
the rights under the old laws; (2) The rights which arose out of
the old laws prior to the conquest or annexation can be
enforced against the new sovereign only if he has chosen to
recognise those rights; (3) Neither Section 5 of the
Administration Act nor Section 4(2) of the Regulation amounts
to recognition by the new sovereign of old rights which arose
prior to December 20, 1961 under the laws which were in force
in the conquered territory, the only rights protected under
Section 4(2) aforesaid being those which accrued subsequent
to the date of enforcement of the Administration Act, namely,
March 5, 1962; and (4) The period between December 20, 1961
when the territories comprised in Goa, Daman and Diu were
annexed by the Government of India, and March 5, 1962 when
the Administration Act came into force, was a period of
interregnum...”
Thereafter, the Court finally held that in cases of acquisition of
territory by conquest, the rights which had accrued under the old
laws do not survive and cannot be enforced against the new
Government unless it chooses to recognise that right. The
relevant portion of the judgment reads as follows:
15
“29. The true position then is that in cases of acquisition
of a territory by conquest, rights which had accrued under the
old laws do not survive and cannot be enforced against the
new Government unless it chooses to recognise those rights.
In order to recognise the old rights, it is not necessary for the
new Government to continue the old laws under which those
rights had accrued because, old rights can be recognised
without continuing the old laws as, for example, by contract or
executive action. On the one hand, old rights can be
recognised by the new Government without continuing the old
laws; on the other, the mere continuance of old laws does not
imply the recognition of old rights which had accrued under
those laws. Something more than the continuance of old laws
is necessary in order to support the claim that old rights have
been recognised by the new Government. That ‘something
more’ can be found in a statutory provision whereby rights
which had already accrued under the old laws are saved. In so
far as continuance of old laws is concerned, as a general rule,
they continue in operation after the conquest, which means
that the new Government is at liberty not to adopt them at all
or to adopt them without a break in their continuity or else to
adopt them from a date subsequent to the date of conquest.”
17. It is important to note that this Court held that in so far as
the continuance of old laws is concerned, the new sovereign is
not bound to follow the old laws. It is at liberty to adopt the old
laws wholly or in part. It may totally reject the old laws and
replace them with laws which apply in the other territories of the
new sovereign. It is for the new sovereign to decide what action it
would take with regard to the application of laws and from which
date which law is to apply. As far as the present case is
concerned, firstly the President by an Ordinance and later
Parliament by an Act of Parliament decided that certain laws, as
16
applicable to the territories of Goa, Daman and Diu prior to its
conquest, which may be referred to as the erstwhile Portuguese
laws, would continue in the territories. It was, however, made
clear that these laws would continue only until amended or
repealed by competent legislature or by other competent
authority.
18. We are clearly of the view that these laws would not have
been applicable unless recognised by the Indian Government and
the Portuguese Civil Code continued to apply in Goa only
because of an Act of the Parliament of India. Therefore, the
Portuguese law which may have had foreign origin became a part
of the Indian laws, and, in sum and substance, is an Indian law.
It is no longer a foreign law. Goa is a territory of India; all
domiciles of Goa are citizens of India; the Portuguese Civil Code
is applicable only on account of the Ordinance and the Act
referred to above. Therefore, it is crystal clear that the Code is an
Indian law and no principles of private international law are
applicable to this case. We answer question number one
accordingly.
17
19. Once we come to this conclusion, the answer to the second
question becomes very simple.
II. Whether the property of a Goan domicile outside the
territory of Goa would be governed by the Code or by Indian
Succession Act or by personal laws, as applicable in the rest
of the country e.g. Hindu Succession Act, 1956, Muslim
Personal Law (Shariat) Application Act, 1937, etc.?
20. It is interesting to note that whereas the founders of the
Constitution in Article 44 in Part IV dealing with the Directive
Principles of State Policy had hoped and expected that the State
shall endeavour to secure for the citizens a Uniform Civil Code
throughout the territories of India, till date no action has been
taken in this regard. Though Hindu laws were codified in the
year 1956, there has been no attempt to frame a Uniform Civil
Code applicable to all citizens of the country despite exhortations
of this Court in the case of Mohd. Ahmed Khan vs. Shah Bano5
and Sarla Mudgal & Ors. vs. Union of India & Ors.6
21. However, Goa is a shining example of an Indian State which
has a uniform civil code applicable to all, regardless of religion
except while protecting certain limited rights. It would also not
5 (1985) 2 SCC 556
6 (1995) 3 SCC 635
18
be out of place to mention that with effect from 22.12.2016
certain portions of the Portuguese Civil Code have been repealed
and replaced by the Goa Succession, Special Notaries and
Inventory Proceedings Act, 2012 which, by and large, is in line
with the Portuguese Civil Code. The salient features with regard
to family properties are that a married couple jointly holds the
ownership of all the assets owned before marriage or acquired
after marriage by each spouse. Therefore, in case of divorce,
each spouse is entitled to half share of the assets. The law,
however, permits prenuptial agreements which may have a
different system of division of assets. Another important aspect,
as pointed out earlier, is that at least half of the property has to
pass to the legal heirs as legitime. This, in some ways, is akin to
the concept of ‘coparcenary’ in Hindu law. However, as far as
Goa is concerned, this legitime will also apply to the selfacquired
properties. Muslim men whose marriages are registered in Goa
cannot practice polygamy. Further, even for followers of Islam
there is no provision for verbal divorce.
22. It is in this context that we shall have to decide whether the
property of late JMP situated in Bombay i.e. outside the territory
19
of Goa would be governed by the Code or by the Indian
Succession Act. As pointed out earlier, this is not a conflict of
international law. The Indian Parliament has made the earlier
Portuguese Civil Code applicable in the State of Goa. It is in this
light that we shall now read Article 24 on which great reliance
has been placed by the learned Single Judge in the impugned
judgment. This Article reads as follows:
“The portuguese subjects who travel or reside in foreign
country, shall be subject to portuguese laws regarding
their civil capacity, their status and immovable properties
situated in the kingdom, in respect of the acts which will
produce effects therein. However, the external form of
the acts shall be governed by the law of the country,
where they were celebrated, except in cases where there
is provision to the contrary.”
In our view, this article has no applicability to the facts of the
present case. When a law is adopted or applied in a new
situation, it has to be read in that context. We have to read
Article 24 in context of the annexation of the territories of Goa by
conquest and their becoming an inherent part of India. There are
no Goan citizens; there can be domiciles of Goa but all are
citizens of India. As Indian citizens, under Article 19 of the
Constitution, they are free to move to any part of the country,
reside there and buy property subject to the local laws and
20
limitations. Therefore, a domicile of Goa, who starts living in
Bombay or in any other part of India, cannot be said to be
Portuguese by any stretch of imagination and he cannot be said
to be living in a foreign country. Indian citizens living in India
cannot, by any stretch of imagination, be said to be living in a
foreign country. This person is only a Goan domicile living
outside Goa in India, which is his country. Therefore, Article 24,
in our opinion, has no applicability.
23. This brings us to the issue as to what will be the law which
would be applicable. The parties are ad idem that the Code
applies. We shall now refer to certain provisions of the Code.
Article 1737 of the Code reads as follows:
“The inheritance comprises of all the properties, rights and
obligations of the deceased, which are not merely personal or
excluded by disposition of the said deceased, or by the law.”
A bare reading of Article 1737 clearly indicates that the
inheritance of a deceased comprises of all the assets, rights and
liabilities of the deceased. The only exclusion, is totally personal
assets or those excluded by the disposition of the said deceased
or by law.
21
24. Article 1766 provides that a married person shall not on the
penalty of nullity dispose of certain and specific properties of the
couple except if the said properties have been allotted to the said
person. The article reads as follows:
“Those married as per the custom of the country shall not,
under penalty of nullity, dispose of certain and specific
properties of the couple, except if the said properties have been
allotted to them in partition, or are not included in the
communion, or if the disposition has been made by one of the
spouses in favour of the other, or if the other spouse has given
consent by authentic form.”
The basis of this article is that both spouses are equal owners of
the entire property of the couple – acquired before or after
marriage. Therefore, the disposition of some part of the property
without the consent of the other spouse can be termed a nullity.
We are referring to this Article only to highlight the fact that in
case the Civil Code is to apply this would also be a factor to be
taken into consideration because can it be said that this article
will only apply to the properties within the territory of Goa and
not to properties in other parts of the country i.e. India?
25. Article 1774 reads as follows:
“The persons obliged to reserve the legitime may only dispose
of the portion which the law permits them to dispose of.”
22
A domicile under his personal law is obliged to reserve a legitime
which can be disposed of only in accordance with the laws of
inheritance. As pointed out earlier, in most of the cases, the
legitime would be half. Again, the question would arise that is
this legitime to be calculated by taking into consideration only the
immovable properties in Goa or by taking all the properties of the
deceased into consideration? Once we have come to the
conclusion that the Civil Code is an Indian law and the domiciles
of Goa, for all intent and purposes, are Indian citizens, would it
be prudent to hold that the Civil Code, in matters of succession,
would apply only in respect to properties situated within the
territories of Goa? We do not think so.
26. Succession is governed normally by the personal laws and
where there is a uniform civil code, as in Goa, by the Civil Code.
Once Article 24 is not to be taken into consideration then it is but
obvious that all the properties whether within Goa or outside
Goa, must be governed by the Civil Code of Goa. If we were to
hold otherwise, the consequences could be disastrous, to say the
least. There would be no certainty of succession. It would be
virtually impossible to determine the legitime which is an
23
inherent part of the law of succession. The rights of the spouses
to have 50% of the property could easily be defeated by buying
properties outside the State of Goa. In the case of a Hindu Goan
domicile it would lead to further complications because if we were
to accept the judgment of the learned Single Judge and the
arguments of the respondents, for the properties in Goa, the Civil
Code would apply but for the properties outside the territory of
Goa, the Hindu Succession Act will apply. Similarly, for Muslims
within the State of Goa, Civil Code would apply and outside Goa,
the Muslim Personal Law (Shariat) Application Act, 1937 would
apply. This would lead to many uncalled for disputes and total
uncertainty with regard to succession.
27. There must be unity in succession. The Portuguese law is
based on the Roman law concept of hereditas i.e. inheritance to
the entire legal position of a deceased man. This concept of
universal succession is described in the Comparative Analysis of
Civil Law Succession,7
as under:
“18. In Comparative Analysis of Civil Law Succession,
Villanova Law Review Vol 11 Issue 2, the concept of
‘universal succession’ and ‘hereditas’ has been described
as
7 Comparative Analysis of Civil Law Succession, Villanova Law Review Vol. 11, Issue 2
24
“ … succession by an individual to the entirety of
the estate, which includes all the rights and duties
of the decedent (de cujus), known collectively as the
hereditas under Roman law. The succession to the
whole of the estate could be by one heir (heres) or
several (heredes), they taking jointly regardless of
whether the succession was testate or intestate.
The estate (hereditas), which passed in Roman
succession was the sum of all the rights and duties
of the deceased person (persona) except for his
political, social and family rights which were not
considered inheritable. Transfer of title to the heirs
was deemed to occur simultaneously with the
individual’s death and was a complete transfer of
title at that time.”
Though we have held that this is Indian law, since it is a law of
Portuguese origin, we may have to take guidance from the way in
which the law has been applied to come to the conclusion to see
what is the intention of the law. Therefore, all the properties of
the person whose inheritance is in question have to be calculated
and considered as one big conglomerate unit and then the rules
of succession will apply.
28. There is a conflict between the Indian Succession Act, the
Hindu Succession Act, the Muslim Personal Law (Shariat)
Application Act, 1937, etc. and the Portuguese Civil Code with
regard to the laws of inheritance but this conflict has to be
resolved. In our view, the Parliament of India, after conquest of
Goa, by adopting the Portuguese Civil Code accepted that the
25
Goan domiciles were to be governed by that law in matters
covered under the Code and specifically included in the laws
which were made applicable. The Indian Parliament did not
make applicable all Portuguese laws but the laws which were
applied would apply with full force. The Goa, Daman and Diu
(Administration) Act, 1962 is a special law dealing with the
domiciles of Goa alone. This special law making the Portuguese
Civil Code applicable is an exception carved out of the general
laws of succession namely Indian Succession Act, Hindu
Succession Act, 1956, Muslim Personal Law (Shariat) Application
Act, 1937 and other laws.
29. It is a well settled principle of statutory interpretation that
when there is a conflict between the general law and the special
law then the special law shall prevail. This principle will apply
with greater force to special law which is also additionally a local
law. This judicial principle is based on the latin maxim generalia
specialibus non derogant, i.e., general law yields to special law
should they operate in the same field on the same subject.
Reference may be made to the decision of this Court in R.S.
Raghunath vs. State of Karnataka & Ors.8
, Commercial Tax
8 (1992) 1 SCC 335
26
Officer, Rajasthan vs. Binani Cements Ltd. & Ors.9 and Atma
Ram Properties Pvt. Ltd. vs. The Oriental Insurance Co.
Ltd.10
30. As far as Goa is concerned, there is a specific judgment in
this regard i.e. Justiniano Augusto De Piedade Barreto & Ors.
vs. Antonio Vicente Da Fonseca & Ors.,
11 though relating to the
interpretation of Section 29 of the Limitation Act, 1963, which
deals with local and special laws. Dealing with the issue of the
Portuguese Civil Code, the Court held that it could not escape
from reaching the conclusion that the Portuguese Civil Code is a
local law within the ambit of Section 29(2) of the Limitation Act,
1963. A special law is a law relating to a particular subject while
a local law is a law confined to a particular area or territory. In
our considered view, the Portuguese Civil Code, in matters of
succession, is both a special law and a local law. It is special and
local because it deals with laws of succession for the domiciles of
Goa only. In Para 14 of this judgment, the Court held as follows:
“14. We, therefore, arrive at the conclusion that the body of
provisions in the Portuguese Civil Code dealing with the
9 (2014) 8 SCC 319
10(2018) 2 SCC 27
11 (1979) 3 SCC 47
27
subject of Limitation of suits etc. and in force in the Union
Territory of Goa, Daman and Diu only is 'local law' within the
meaning of Section 29(2) of the Limitation Act, 1963. As stated
earlier these provisions have to be read into the Limitation Act,
1963, as if the Schedule to the Limitation Act is amended
mutatis mutandis. No question of repugnancy arises. We agree
with the Judicial Commissioner that the provisions of the
Portuguese Civil Code relating to Limitation continue to be in
force in the Union Territory of Goa, Daman and Diu.”
31. In view of the aforesaid, we are clearly of the view that the
Portuguese Civil Code being a special Act, applicable only to the
domiciles of Goa, will be applicable to the Goan domiciles in
respect to all the properties wherever they be situated in India
whether within Goa or outside Goa and Section 5 of the Indian
Succession Act or the laws of succession would not be applicable
to such Goan domiciles.
III. What is the effect of the grant of probate by the Bombay
High Court in respect of the Will executed by JMP?
32. We shall now deal with the issue “what is the effect of the
grant of probate of the Will of late JMP by the High Court of
Bombay?” At the outset, we may say that the order granting
probate has not been produced by any side though it is admitted
by all sides that probate was granted and the appellants herein
28
had notice of the probate case. Assuming that probate had been
granted, what is the effect of the grant of probate on the laws of
inheritance? Grant of probate has nothing to do with
inheritance. The jurisdiction of a probate court is limited to
decide whether the Will is genuine or not. The Will may be
genuine but the grant of probate does not mean that the Will is
valid even if it violates the laws of inheritance. To give an
example, supposing a Hindu bequeathes his ancestral property
by a Will and probate of the Will is granted, such grant of probate
cannot adversely affect the rights of those members of the
coparcenary who had a right in the property since birth. Similar
is the case in Goa. The legitime is the right of the heirs by birth.
When both the spouses are alive, they own half of the property.
Mere grant of probate will not mean that the husband can Will
away more than half of the property even if that be in his name.
33. This Court in Krishna Kumar Birla vs. Rajendra Singh
Lodha12 held as under:
“57. The 1925 Act in this case has nothing to do with the
law of inheritance or succession which is otherwise
governed by statutory laws or the custom, as the case
may be. It makes detailed provisions as to how and in
what manner an application for grant of probate is to be
12 (2008) 4 SCC 300
29
filed, considered and granted or refused. Rights and
obligations of the parties as also the executors and
administrators appointed by the court are laid down
therein. Removal of the existing executors and
administrators and appointment of subsequent executors
are within the exclusive domain of the court. The
jurisdiction of the Probate Court is limited being confined
only to consider the genuineness of the will. A question of
title arising under the Act cannot be gone into the (sic
probate) proceedings. Construction of a will relating to
the right, title and interest of any other person is beyond
the domain of the Probate Court.”
In view of the clearcut exposition of law in the aforesaid case,
we hold that grant of probate by the Bombay High Court did not
in any manner affect the rights of inheritance of all the legal
heirs of the deceased.
34. In view of the above discussion, we answer the question
framed in Paragraph 1, holding that it will be the Portuguese Civil
Code, 1867 as applicable in the State of Goa, which shall govern
the rights of succession and inheritance even in respect of
properties of a Goan domicile situated outside Goa, anywhere
in India.
35. In view of the above, we are clearly of the view that the
impugned judgment has to be set aside and the property of late
JMP at Bombay is to be included in the inventory of properties in
the inventory proceedings in Goa for all intent and purposes.
30
Hence, we allow the appeal, set aside the judgment of the learned
Single Judge dated 08.08.2002 and restore the order of the Court
of Comarca Judge of Salcete and Quepem, at Margao in Inventory
Proceedings No.20436 dated 15.10.1999. Pending application(s),
if any, stand(s) disposed of.
…………………………J.
(Deepak Gupta)
…………………………J.
(Aniruddha Bose)
New Delhi
September 13, 2019
31
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7378 OF 2010
JOSE PAULO COUTINHO …APPELLANT(S)
Versus
MARIA LUIZA VALENTINA
PEREIRA & ANR. …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
1. “Whether succession to the property of a Goan situate
outside Goa in India will be governed by the Portuguese Civil
Code, 1867 as applicable in the State of Goa or the Indian
succession Act, 1925” is the question which arises for decision in
this appeal.
2. One Joaquim Mariano Pereira (JMP) had three daughters
viz., (1) Maria Luiza Valentina Pereira (ML), Respondent No.1 (2)
Virginia Pereira and (3) Maria Augusta Antoneita Pereira
Fernandes. He also had a wife named Claudina Lacerda Pereira.
1
He lived in Bombay and purchased a property in Bombay in the
year 1955. On 06.05.1957 he bequeathed this property at
Bombay to his youngest daughter, Maria Luiza Valentina Pereira,
Respondent No.1. He bequeathed Rs. 3000/ each to his other
two daughters. His wife expired on 31.10.1960 when he was still
alive. JMP died on 02.08.1967. The probate of the Will dated
06.05.1957 was granted by the High Court of Bombay, at Goa on
12.09.1980. Both the other daughters were served notice of the
probate proceedings.
3. Goa was liberated from Portuguese rule on 19.12.1961. An
ordinance being The Goa, Daman and Diu (Administration)
Ordinance was promulgated on 05.03.1962 and thereafter the
Goa, Daman and Diu (Administration) Act, 1962 was enacted,
hereinafter referred to as ‘the Act of 1962’. Both the Ordinance
as well as the Act of 1962 provided that the laws applicable in
Goa prior to the appointed date i.e., 20.12.1961 would continue
to be in force until amended or repealed by the competent
legislature or authority. Section 5 of the Act of 1962 which is
relevant for our purpose reads as follows:
“5. Continuance of existing laws and their adaptation. (1) All
laws in force immediately before the appointed day in Goa,
Daman and Diu or any part thereof shall continue to be in
2
force therein until amended or repealed by a competent
Legislature or other competent authority.
(2) For the purpose of facilitating the application of any such
law in relation to the administration of Goa, Daman and Diu
as a Union territory and for the purpose of bringing the
provisions of any such law into accord with the provisions of
the Constitution, the Central Government may within two
years from the appointed day, by order, may (sic make) such
adaptations and modifications, whether by way of repeal or
amendment, as may be necessary or expedient and thereupon,
every such law shall have effect subject to the adaptations and
modifications so made.”
4. It is not disputed before us that the Portuguese Civil Code,
1867 (hereinafter referred to as ‘the Civil Code’) as applicable in
the State of Goa before its liberation in 1962 would apply. The
Civil Code is in two parts – one part deals with all substantial
civil laws including laws of succession and the other part deals
with procedure. As far as the present case is concerned, the
parties are ad idem that in so far as the succession to the
properties in Goa is concerned, they are governed by the Civil
Code. The main dispute is that whereas the appellant, who is
one of the legal heirs of the daughters of JMP, claims that even
the property of JMP in Bombay is to be dealt with under the Civil
Code, the case of the respondent i.e., the daughter who was
bequeathed the property in Bombay, is that as far as the
immovable property situate outside Goa in any other part of India
3
is concerned, it would be the Indian succession Act, 1925 which
would apply.
5. It would be apposite to digress a little and refer to certain
provisions of the Civil Code in relation to succession. Succession
is governed under Title II, Chapter I of the Civil Code. Under the
Civil Code1
, a person cannot dispose of all his property by way of
Will. There are two portions of the property – one which can be
disposed by Will, Gift, etc. and the other which is the
indisposable portion in terms of Article 1784 of the Civil Code
which reads as follows:
“Legitime means the portion of the properties that the testator
cannot dispose of, because it has been set apart by law for the
lineal descendants or ascendants.
Sole paragraph: This portion consists of half of the properties
of the testator, save as provided in Clause2 of Article 1785
and Article 1787.”
6. Normally, if a person has children or parents, he can only
dispose of half of the property by will or gift and the remaining
property has to be allotted to his heirs whether ascendants or
descendants in the shares laid down in the Civil Code. Where a
person has no children or where he leaves behind illegitimate
1 In this judgment, the articles of Portuguese Civil Code have been quoted from the
translation of the Code made by Manohar Sinai Usgaocar, Senior Advocate, Civil Code in
Goa, First Edition, 2017, Vaikuntrao Dempo Centre for Indo Portuguese Studies. The
wording in a translation made by the Government of Goa in some articles is slightly
different but the meaning is the same and that has no impact on the judgment in hand.
4
children or the deceased leaves behind only ascendant heirs who
are not the parents then the indisposable portion is less than
half. The Code provides that the estate of every person can be
divided into two parts – one which he can dispose of by
testamentary disposition and the other which he cannot dispose
of. The second part which he cannot dispose of has to be
inherited by the heirs in the shares as laid down in the Civil Code
and this part which cannot be disposed, is called legitime. This
legitime is destined for the heirs in the direct ascending or
descending line.
7. Another interesting aspect of the Civil Code is that after the
death of a person, inventory proceedings are started wherein the
entire properties (both movable and immovable) and liabilities of
the deceased are inventorised. In these proceedings normally one
of the eldest members of the family is appointed as Cabeca de
Casal, i.e. the administrator. The administrator is required to
prepare an inventory of all the properties of the deceased. Once
the properties of the deceased are inventorised and evaluated,
these have to be shared in accordance with the shares laid down
in the Civil Code. In case the deceased had made some
5
testamentary bequests, then those bequests are to be adjusted
against that portion of the estate which was not the legitime. As
pointed above, only half of the total property could be bequeathed
and any bequest in excess of half would not be a valid bequest.
8. As far as the present case is concerned, inventory
proceedings under the Civil Code were initiated for the properties
of JMP. On 27.04.1981 his daughter Virginia Pareira was
appointed as Cabeca De Casal (administrator). She prepared the
inventory of the properties and in these proceedings the house in
Bombay which had been bequeathed in favour of the respondent
no.1 was listed at Sl.No.8. The respondent objected to the
inventory on the ground that the property situated at Bombay
was not governed by the inventory proceedings. Thereafter,
Virginia Pareira died. Then respondent no.1 was appointed as
administrator. She filed a fresh list of properties and excluded
the property at Bombay. The appellant, who is one of the legal
representatives of Virginia Pareira filed objections to the removal
of the property at Bombay from the inventory and sought the
inclusion and valuation of the said property to work out what
was the disposable portion and what was the legitime. The
6
inventory court vide order dated 09.03.1998 held that the
property at Bombay was to be excluded from the list of assets in
the inventory proceedings at Goa. Thereafter, the appellant filed
an appeal in the High Court of Bombay, Goa Bench. However, he
withdrew the appeal with liberty to file a fresh application before
the inventory court for inclusion of these assets. He filed this
application and the inventory court on 15.10.1999 allowed the
application and held that the property at Bombay should be
included in the list of assets. Respondent no.1 and her husband
(respondent no.2) challenged the said order of the inventory court
before the High Court of Bombay, Goa Bench. This appeal was
allowed on 08.08.2008. The High Court vide the impugned
judgment held that in view of the provisions of the Indian
Succession Act, 1925 especially Section 5 thereof, the Civil Code
would not apply in so far as the property situate outside Goa in
other parts of India are concerned. Hence, this appeal by the
appellant.
9. At this stage, it would be pertinent to mention that in the
meantime, a similar question was referred to a Division Bench of
the Bombay High Court, Goa Bench. The Division Bench in the
7
case of A.P. Fernandes vs. Annette Blunt Finch and others2
came to the conclusion that the judgment of the learned Single
Judge which is impugned in the present appeal did not lay down
the correct law and that the Civil Code would apply even to the
property situate outside Goa.
10. Shri Devadatt Kamat, learned senior counsel appearing on
behalf of the appellant, submits that though we may be sitting as
Judges of the Supreme Court of India, we will have to apply the
Portuguese Law as applicable to the domiciles of Goa. He further
submitted that since Portuguese law is applicable, the principles
of private international law would apply. He invoked the doctrine
of renvoi to urge that since the citizens of Goa were governed by a
foreign law, this Court would apply the foreign law to the citizens
of Goa. He further submitted that under the Portuguese law
there is principle of unity of succession of the property of a
deceased Portuguese citizen whether situated within or outside
the country, which are to be included for the purpose of
inventory proceedings. He also urged that Article 24 of the Code
was not applicable and, in fact, the applicable articles were
Articles 1737, 1784 and 1961. According to him, the judgment of
2 2015 (6) Mh.L.J. 717
8
the learned Single Judge does not lay down the correct law and
the judgment of the Division Bench should be approved. He also
submitted that the grant of probate of the Will does not ipso facto
lead to the conclusion that the Will is valid. Lastly, it is
contended that Section 5 of the Indian Succession Act has no
application to the present case.
11. On the other hand, Shri Yashraj Singh Deora, learned
counsel for the respondent nos. 1 and 2 urges that the
Portuguese Civil Code would apply only in the territory of Goa
and would have no extraterritorial application over immovable
properties situated outside the State of Goa. He also submitted
that the property at Bombay would be governed by the provisions
of the Indian Succession Act and in terms of Section 5 thereof.
According to him, Article 24 of the Civil Code relates only to
properties ‘situated in the kingdom’. It is lastly submitted that
the common law principle of lex rei situs would apply in the case
of immovable properties. Therefore, the law in force at the place
where immovable property is situated should apply. He further
submits that the Civil Code would only apply to the properties
within the State of Goa and not beyond. Lastly, it is contended
9
that the probate of the Will, wherein the petitioner had
participated, is a final adjudication determining the rights of the
parties.
12. According to us, the following issues arise for determination:
I. Whether the Portuguese Civil Code can be said to be a
foreign law and the principles of private international law
are applicable?
II. Whether the property of a Goan domicile outside the
territory of Goa would be governed by the Code or by
Indian Succession Act or by personal laws, as applicable
in the rest of the country e.g. Hindu Succession Act,
1956, Muslim Personal Law (Shariat) Application Act,
1937, etc.?
III. What is the effect of the grant of probate by the Bombay
High Court in respect of the Will executed by JMP?
I. Whether the Portuguese Civil Code can be said to be a
foreign law and the principles of private international law are
applicable?
10
13. The territories forming part of Goa, Daman and Diu were
part of the kingdom of Portugal. They were annexed by the
Government of India by conquest on 20.12.1961 and became a
part of India by virtue of Article 1(3)(c) of the Constitution. After
acquisition by conquest, these territories became part and parcel
of India, that is Bharat. As pointed out earlier, for making
provision for administration of the said territories, the President
of India, exercising powers vested in him under Article 123(1) of
the Constitution on 05.03.1962 promulgated an Ordinance called
the Goa, Daman and Diu (Administration) Ordinance, 1962. This
Ordinance was replaced by an Act of Indian Parliament known as
The Goa, Daman and Diu (Administration) Act, 1962, which
came into effect from 05.03.1962. On the same day, the
Constitution was amended by the Constitution (12th Amendment)
Act, 1962 whereby Goa, Daman and Diu were added as Entry 5
in Part II of the First Schedule to the Constitution with
retrospective effect from 20.12.1961. These territories of Goa,
Daman and Diu were also included in clause (d) of Article 240(1)
of the Constitution with effect from 20.12.1961. Thus, it is more
than apparent that Goa, Daman and Diu became an integral part
of India as a Union Territory of India with effect from the date of
11
its annexation by conquest. Goa became a fullfledged State in
1987.
14. The Civil Code may be a Code of Portuguese origin but after
conquest and annexation of Goa, Daman and Diu, this Code
became applicable to the domiciles of Goa only by virtue of the
Ordinance and thereafter, by the Act. Therefore, the Civil Code
has been enforced in Goa, Daman and Diu by an Act of the
Indian Parliament and thus, becomes an Indian law. This issue
is no longer res integra.
15. A Constitution Bench of this Court in Pema Chibar vs.
Union of India & Ors.
3
, was dealing with a case wherein the
petitioner had obtained licences for import of goods of the value
of more than one million pounds. Though the orders for import
of the goods to Goa were placed before 20.12.1961, the goods did
not reach Goa by the said date. Thereafter, the petitioner applied
for renewal of the licences and claimed that the Indian
Government was bound by the licences granted by the earlier
rulers. This Court held that once a property is taken over by
conquest, the new sovereign (namely, the Government of India)
3 AIR 1966 SC 442
12
would not be bound by the acts of the old sovereign except where
it recognised such rights. Reliance was placed by the petitioner
on the Ordinance and the Act, referred to above. Rejecting the
contention, this Court held as follows:
“8. But this is not all. The Ordinance and the Act of 1962 on
which the petitioner relies came into force from March 5, 1962.
It is true that they provided for the continuance of old laws but
that could only be from the date from which they came into
force, i.e., from March 5, 1962. There was a period between
December 20, 1961 and March 5, 1962 during which it cannot
be said that the old laws necessarily continued so far as the
rights and liabilities between the new subjects and the new
sovereign were concerned. So far as such rights and liabilities
are concerned, (we say nothing here as to the rights and
liabilities between subjects and subjects under the old laws),
the old laws were apparently not in force during this
interregnum. That is why we find in S. 7 (1) of the Ordinance,
a provision to the effect that all things done and all action
taken (including any acts of executive authority, proceedings,
decrees and sentences) in or with respect to Goa, Daman and
Diu on or after the appointed day and before the
commencement of this Ordinance, by the Administrator or any
other officer of Government, whether civil or military or by any
other person acting under the orders of the Administrator or
such officer, which have been done or taken in good faith and
in a reasonable belief that they were necessary for the peace
and good Government of Goa, Daman and Diu, shall be as
valid and operative as if they had been done or taken in
accordance with law. Similarly, we have a provision in S. 9(1)
of the Act, which is in exactly the same terms. These
provisions in our opinion show that as between the subjects
and the new sovereign, the old laws did not continue during
this interregnum and that is why things done and action taken
by various authorities during this period were validated as if
they had been done or taken in accordance with law. A doubt
was raised as to the power of the Military Governor to issue a
proclamation like the one he did on December 30, 1961, to
which we have already referred. That doubt in our opinion is
cleared by these provisions which make all such orders as if
they had been made in accordance with law. The
proclamation of December 30, 1961 which clearly showed
what kind of import licences would be recognised must be held
13
to be in accordance with law and that means that no imports
were recognised except those covered by the proclamation.”
We are aware that the Court did not say anything with regard to
the rights and liabilities between subjects and subjects under the
old laws and kept that question open. We shall deal with this
aspect later.
16. A threeJudge Bench of this Court in Vinodkumar
Shantilal Gosalia vs. Gangadhar Narsingdas Agarwal4 was
dealing with the question as to whether the respondent no.1
before it had acquired the right to obtain a mining lease from the
Portuguese Government, and, if so, whether after the annexation
of Goa, the Government of India recognised that right and,
therefore, was bound to grant a mining lease to respondent no. 1
in terms of the application made by him to the Government of
Portugal. The Court made the following pertinent observations:
“17. …it is necessary to reiterate a wellsettled legal position
that when a new territory is acquired in any mannerbe it by
conquest, annexation or cession following upon a treatythe
new “sovereign” is not bound by the rights which the residents
of the conquered territory had against their sovereign or by the
obligations of the old sovereign towards his subjects. The
rights of the residents of a territory against their state or
sovereign come to an end with the conquest, annexation or
cession of that territory and do not pass on to the new
environment. The inhabitants of the acquired territory bring
with them no rights which they can enforce against the new
state of which they become inhabitants. The new state is not
required, by any positive assertion or declaration, to repudiate
4 (1981) 4 SCC 226
14
its obligation by disowning such rights. The new state may
recognise the old rights by regranting them which, in the
majority of cases, would be a matter of contract or of execution
action; or, alternatively, the recognition of old rights may be
made by an appropriate statutory provision whereby rights
which were in force immediately before an appointed date are
saved...”
Analysing the judgment of the Constitution Bench in Pema
Chibar case (supra), it was held as follows:
“28. The decision in Pema Chibar (supra) is an authority
for four distinct and important propositions: (1) The fact that
laws which were in force in the conquered territory are
continued by the new Government after the conquest is not by
itself enough to show that the new sovereign has recognised
the rights under the old laws; (2) The rights which arose out of
the old laws prior to the conquest or annexation can be
enforced against the new sovereign only if he has chosen to
recognise those rights; (3) Neither Section 5 of the
Administration Act nor Section 4(2) of the Regulation amounts
to recognition by the new sovereign of old rights which arose
prior to December 20, 1961 under the laws which were in force
in the conquered territory, the only rights protected under
Section 4(2) aforesaid being those which accrued subsequent
to the date of enforcement of the Administration Act, namely,
March 5, 1962; and (4) The period between December 20, 1961
when the territories comprised in Goa, Daman and Diu were
annexed by the Government of India, and March 5, 1962 when
the Administration Act came into force, was a period of
interregnum...”
Thereafter, the Court finally held that in cases of acquisition of
territory by conquest, the rights which had accrued under the old
laws do not survive and cannot be enforced against the new
Government unless it chooses to recognise that right. The
relevant portion of the judgment reads as follows:
15
“29. The true position then is that in cases of acquisition
of a territory by conquest, rights which had accrued under the
old laws do not survive and cannot be enforced against the
new Government unless it chooses to recognise those rights.
In order to recognise the old rights, it is not necessary for the
new Government to continue the old laws under which those
rights had accrued because, old rights can be recognised
without continuing the old laws as, for example, by contract or
executive action. On the one hand, old rights can be
recognised by the new Government without continuing the old
laws; on the other, the mere continuance of old laws does not
imply the recognition of old rights which had accrued under
those laws. Something more than the continuance of old laws
is necessary in order to support the claim that old rights have
been recognised by the new Government. That ‘something
more’ can be found in a statutory provision whereby rights
which had already accrued under the old laws are saved. In so
far as continuance of old laws is concerned, as a general rule,
they continue in operation after the conquest, which means
that the new Government is at liberty not to adopt them at all
or to adopt them without a break in their continuity or else to
adopt them from a date subsequent to the date of conquest.”
17. It is important to note that this Court held that in so far as
the continuance of old laws is concerned, the new sovereign is
not bound to follow the old laws. It is at liberty to adopt the old
laws wholly or in part. It may totally reject the old laws and
replace them with laws which apply in the other territories of the
new sovereign. It is for the new sovereign to decide what action it
would take with regard to the application of laws and from which
date which law is to apply. As far as the present case is
concerned, firstly the President by an Ordinance and later
Parliament by an Act of Parliament decided that certain laws, as
16
applicable to the territories of Goa, Daman and Diu prior to its
conquest, which may be referred to as the erstwhile Portuguese
laws, would continue in the territories. It was, however, made
clear that these laws would continue only until amended or
repealed by competent legislature or by other competent
authority.
18. We are clearly of the view that these laws would not have
been applicable unless recognised by the Indian Government and
the Portuguese Civil Code continued to apply in Goa only
because of an Act of the Parliament of India. Therefore, the
Portuguese law which may have had foreign origin became a part
of the Indian laws, and, in sum and substance, is an Indian law.
It is no longer a foreign law. Goa is a territory of India; all
domiciles of Goa are citizens of India; the Portuguese Civil Code
is applicable only on account of the Ordinance and the Act
referred to above. Therefore, it is crystal clear that the Code is an
Indian law and no principles of private international law are
applicable to this case. We answer question number one
accordingly.
17
19. Once we come to this conclusion, the answer to the second
question becomes very simple.
II. Whether the property of a Goan domicile outside the
territory of Goa would be governed by the Code or by Indian
Succession Act or by personal laws, as applicable in the rest
of the country e.g. Hindu Succession Act, 1956, Muslim
Personal Law (Shariat) Application Act, 1937, etc.?
20. It is interesting to note that whereas the founders of the
Constitution in Article 44 in Part IV dealing with the Directive
Principles of State Policy had hoped and expected that the State
shall endeavour to secure for the citizens a Uniform Civil Code
throughout the territories of India, till date no action has been
taken in this regard. Though Hindu laws were codified in the
year 1956, there has been no attempt to frame a Uniform Civil
Code applicable to all citizens of the country despite exhortations
of this Court in the case of Mohd. Ahmed Khan vs. Shah Bano5
and Sarla Mudgal & Ors. vs. Union of India & Ors.6
21. However, Goa is a shining example of an Indian State which
has a uniform civil code applicable to all, regardless of religion
except while protecting certain limited rights. It would also not
5 (1985) 2 SCC 556
6 (1995) 3 SCC 635
18
be out of place to mention that with effect from 22.12.2016
certain portions of the Portuguese Civil Code have been repealed
and replaced by the Goa Succession, Special Notaries and
Inventory Proceedings Act, 2012 which, by and large, is in line
with the Portuguese Civil Code. The salient features with regard
to family properties are that a married couple jointly holds the
ownership of all the assets owned before marriage or acquired
after marriage by each spouse. Therefore, in case of divorce,
each spouse is entitled to half share of the assets. The law,
however, permits prenuptial agreements which may have a
different system of division of assets. Another important aspect,
as pointed out earlier, is that at least half of the property has to
pass to the legal heirs as legitime. This, in some ways, is akin to
the concept of ‘coparcenary’ in Hindu law. However, as far as
Goa is concerned, this legitime will also apply to the selfacquired
properties. Muslim men whose marriages are registered in Goa
cannot practice polygamy. Further, even for followers of Islam
there is no provision for verbal divorce.
22. It is in this context that we shall have to decide whether the
property of late JMP situated in Bombay i.e. outside the territory
19
of Goa would be governed by the Code or by the Indian
Succession Act. As pointed out earlier, this is not a conflict of
international law. The Indian Parliament has made the earlier
Portuguese Civil Code applicable in the State of Goa. It is in this
light that we shall now read Article 24 on which great reliance
has been placed by the learned Single Judge in the impugned
judgment. This Article reads as follows:
“The portuguese subjects who travel or reside in foreign
country, shall be subject to portuguese laws regarding
their civil capacity, their status and immovable properties
situated in the kingdom, in respect of the acts which will
produce effects therein. However, the external form of
the acts shall be governed by the law of the country,
where they were celebrated, except in cases where there
is provision to the contrary.”
In our view, this article has no applicability to the facts of the
present case. When a law is adopted or applied in a new
situation, it has to be read in that context. We have to read
Article 24 in context of the annexation of the territories of Goa by
conquest and their becoming an inherent part of India. There are
no Goan citizens; there can be domiciles of Goa but all are
citizens of India. As Indian citizens, under Article 19 of the
Constitution, they are free to move to any part of the country,
reside there and buy property subject to the local laws and
20
limitations. Therefore, a domicile of Goa, who starts living in
Bombay or in any other part of India, cannot be said to be
Portuguese by any stretch of imagination and he cannot be said
to be living in a foreign country. Indian citizens living in India
cannot, by any stretch of imagination, be said to be living in a
foreign country. This person is only a Goan domicile living
outside Goa in India, which is his country. Therefore, Article 24,
in our opinion, has no applicability.
23. This brings us to the issue as to what will be the law which
would be applicable. The parties are ad idem that the Code
applies. We shall now refer to certain provisions of the Code.
Article 1737 of the Code reads as follows:
“The inheritance comprises of all the properties, rights and
obligations of the deceased, which are not merely personal or
excluded by disposition of the said deceased, or by the law.”
A bare reading of Article 1737 clearly indicates that the
inheritance of a deceased comprises of all the assets, rights and
liabilities of the deceased. The only exclusion, is totally personal
assets or those excluded by the disposition of the said deceased
or by law.
21
24. Article 1766 provides that a married person shall not on the
penalty of nullity dispose of certain and specific properties of the
couple except if the said properties have been allotted to the said
person. The article reads as follows:
“Those married as per the custom of the country shall not,
under penalty of nullity, dispose of certain and specific
properties of the couple, except if the said properties have been
allotted to them in partition, or are not included in the
communion, or if the disposition has been made by one of the
spouses in favour of the other, or if the other spouse has given
consent by authentic form.”
The basis of this article is that both spouses are equal owners of
the entire property of the couple – acquired before or after
marriage. Therefore, the disposition of some part of the property
without the consent of the other spouse can be termed a nullity.
We are referring to this Article only to highlight the fact that in
case the Civil Code is to apply this would also be a factor to be
taken into consideration because can it be said that this article
will only apply to the properties within the territory of Goa and
not to properties in other parts of the country i.e. India?
25. Article 1774 reads as follows:
“The persons obliged to reserve the legitime may only dispose
of the portion which the law permits them to dispose of.”
22
A domicile under his personal law is obliged to reserve a legitime
which can be disposed of only in accordance with the laws of
inheritance. As pointed out earlier, in most of the cases, the
legitime would be half. Again, the question would arise that is
this legitime to be calculated by taking into consideration only the
immovable properties in Goa or by taking all the properties of the
deceased into consideration? Once we have come to the
conclusion that the Civil Code is an Indian law and the domiciles
of Goa, for all intent and purposes, are Indian citizens, would it
be prudent to hold that the Civil Code, in matters of succession,
would apply only in respect to properties situated within the
territories of Goa? We do not think so.
26. Succession is governed normally by the personal laws and
where there is a uniform civil code, as in Goa, by the Civil Code.
Once Article 24 is not to be taken into consideration then it is but
obvious that all the properties whether within Goa or outside
Goa, must be governed by the Civil Code of Goa. If we were to
hold otherwise, the consequences could be disastrous, to say the
least. There would be no certainty of succession. It would be
virtually impossible to determine the legitime which is an
23
inherent part of the law of succession. The rights of the spouses
to have 50% of the property could easily be defeated by buying
properties outside the State of Goa. In the case of a Hindu Goan
domicile it would lead to further complications because if we were
to accept the judgment of the learned Single Judge and the
arguments of the respondents, for the properties in Goa, the Civil
Code would apply but for the properties outside the territory of
Goa, the Hindu Succession Act will apply. Similarly, for Muslims
within the State of Goa, Civil Code would apply and outside Goa,
the Muslim Personal Law (Shariat) Application Act, 1937 would
apply. This would lead to many uncalled for disputes and total
uncertainty with regard to succession.
27. There must be unity in succession. The Portuguese law is
based on the Roman law concept of hereditas i.e. inheritance to
the entire legal position of a deceased man. This concept of
universal succession is described in the Comparative Analysis of
Civil Law Succession,7
as under:
“18. In Comparative Analysis of Civil Law Succession,
Villanova Law Review Vol 11 Issue 2, the concept of
‘universal succession’ and ‘hereditas’ has been described
as
7 Comparative Analysis of Civil Law Succession, Villanova Law Review Vol. 11, Issue 2
24
“ … succession by an individual to the entirety of
the estate, which includes all the rights and duties
of the decedent (de cujus), known collectively as the
hereditas under Roman law. The succession to the
whole of the estate could be by one heir (heres) or
several (heredes), they taking jointly regardless of
whether the succession was testate or intestate.
The estate (hereditas), which passed in Roman
succession was the sum of all the rights and duties
of the deceased person (persona) except for his
political, social and family rights which were not
considered inheritable. Transfer of title to the heirs
was deemed to occur simultaneously with the
individual’s death and was a complete transfer of
title at that time.”
Though we have held that this is Indian law, since it is a law of
Portuguese origin, we may have to take guidance from the way in
which the law has been applied to come to the conclusion to see
what is the intention of the law. Therefore, all the properties of
the person whose inheritance is in question have to be calculated
and considered as one big conglomerate unit and then the rules
of succession will apply.
28. There is a conflict between the Indian Succession Act, the
Hindu Succession Act, the Muslim Personal Law (Shariat)
Application Act, 1937, etc. and the Portuguese Civil Code with
regard to the laws of inheritance but this conflict has to be
resolved. In our view, the Parliament of India, after conquest of
Goa, by adopting the Portuguese Civil Code accepted that the
25
Goan domiciles were to be governed by that law in matters
covered under the Code and specifically included in the laws
which were made applicable. The Indian Parliament did not
make applicable all Portuguese laws but the laws which were
applied would apply with full force. The Goa, Daman and Diu
(Administration) Act, 1962 is a special law dealing with the
domiciles of Goa alone. This special law making the Portuguese
Civil Code applicable is an exception carved out of the general
laws of succession namely Indian Succession Act, Hindu
Succession Act, 1956, Muslim Personal Law (Shariat) Application
Act, 1937 and other laws.
29. It is a well settled principle of statutory interpretation that
when there is a conflict between the general law and the special
law then the special law shall prevail. This principle will apply
with greater force to special law which is also additionally a local
law. This judicial principle is based on the latin maxim generalia
specialibus non derogant, i.e., general law yields to special law
should they operate in the same field on the same subject.
Reference may be made to the decision of this Court in R.S.
Raghunath vs. State of Karnataka & Ors.8
, Commercial Tax
8 (1992) 1 SCC 335
26
Officer, Rajasthan vs. Binani Cements Ltd. & Ors.9 and Atma
Ram Properties Pvt. Ltd. vs. The Oriental Insurance Co.
Ltd.10
30. As far as Goa is concerned, there is a specific judgment in
this regard i.e. Justiniano Augusto De Piedade Barreto & Ors.
vs. Antonio Vicente Da Fonseca & Ors.,
11 though relating to the
interpretation of Section 29 of the Limitation Act, 1963, which
deals with local and special laws. Dealing with the issue of the
Portuguese Civil Code, the Court held that it could not escape
from reaching the conclusion that the Portuguese Civil Code is a
local law within the ambit of Section 29(2) of the Limitation Act,
1963. A special law is a law relating to a particular subject while
a local law is a law confined to a particular area or territory. In
our considered view, the Portuguese Civil Code, in matters of
succession, is both a special law and a local law. It is special and
local because it deals with laws of succession for the domiciles of
Goa only. In Para 14 of this judgment, the Court held as follows:
“14. We, therefore, arrive at the conclusion that the body of
provisions in the Portuguese Civil Code dealing with the
9 (2014) 8 SCC 319
10(2018) 2 SCC 27
11 (1979) 3 SCC 47
27
subject of Limitation of suits etc. and in force in the Union
Territory of Goa, Daman and Diu only is 'local law' within the
meaning of Section 29(2) of the Limitation Act, 1963. As stated
earlier these provisions have to be read into the Limitation Act,
1963, as if the Schedule to the Limitation Act is amended
mutatis mutandis. No question of repugnancy arises. We agree
with the Judicial Commissioner that the provisions of the
Portuguese Civil Code relating to Limitation continue to be in
force in the Union Territory of Goa, Daman and Diu.”
31. In view of the aforesaid, we are clearly of the view that the
Portuguese Civil Code being a special Act, applicable only to the
domiciles of Goa, will be applicable to the Goan domiciles in
respect to all the properties wherever they be situated in India
whether within Goa or outside Goa and Section 5 of the Indian
Succession Act or the laws of succession would not be applicable
to such Goan domiciles.
III. What is the effect of the grant of probate by the Bombay
High Court in respect of the Will executed by JMP?
32. We shall now deal with the issue “what is the effect of the
grant of probate of the Will of late JMP by the High Court of
Bombay?” At the outset, we may say that the order granting
probate has not been produced by any side though it is admitted
by all sides that probate was granted and the appellants herein
28
had notice of the probate case. Assuming that probate had been
granted, what is the effect of the grant of probate on the laws of
inheritance? Grant of probate has nothing to do with
inheritance. The jurisdiction of a probate court is limited to
decide whether the Will is genuine or not. The Will may be
genuine but the grant of probate does not mean that the Will is
valid even if it violates the laws of inheritance. To give an
example, supposing a Hindu bequeathes his ancestral property
by a Will and probate of the Will is granted, such grant of probate
cannot adversely affect the rights of those members of the
coparcenary who had a right in the property since birth. Similar
is the case in Goa. The legitime is the right of the heirs by birth.
When both the spouses are alive, they own half of the property.
Mere grant of probate will not mean that the husband can Will
away more than half of the property even if that be in his name.
33. This Court in Krishna Kumar Birla vs. Rajendra Singh
Lodha12 held as under:
“57. The 1925 Act in this case has nothing to do with the
law of inheritance or succession which is otherwise
governed by statutory laws or the custom, as the case
may be. It makes detailed provisions as to how and in
what manner an application for grant of probate is to be
12 (2008) 4 SCC 300
29
filed, considered and granted or refused. Rights and
obligations of the parties as also the executors and
administrators appointed by the court are laid down
therein. Removal of the existing executors and
administrators and appointment of subsequent executors
are within the exclusive domain of the court. The
jurisdiction of the Probate Court is limited being confined
only to consider the genuineness of the will. A question of
title arising under the Act cannot be gone into the (sic
probate) proceedings. Construction of a will relating to
the right, title and interest of any other person is beyond
the domain of the Probate Court.”
In view of the clearcut exposition of law in the aforesaid case,
we hold that grant of probate by the Bombay High Court did not
in any manner affect the rights of inheritance of all the legal
heirs of the deceased.
34. In view of the above discussion, we answer the question
framed in Paragraph 1, holding that it will be the Portuguese Civil
Code, 1867 as applicable in the State of Goa, which shall govern
the rights of succession and inheritance even in respect of
properties of a Goan domicile situated outside Goa, anywhere
in India.
35. In view of the above, we are clearly of the view that the
impugned judgment has to be set aside and the property of late
JMP at Bombay is to be included in the inventory of properties in
the inventory proceedings in Goa for all intent and purposes.
30
Hence, we allow the appeal, set aside the judgment of the learned
Single Judge dated 08.08.2002 and restore the order of the Court
of Comarca Judge of Salcete and Quepem, at Margao in Inventory
Proceedings No.20436 dated 15.10.1999. Pending application(s),
if any, stand(s) disposed of.
…………………………J.
(Deepak Gupta)
…………………………J.
(Aniruddha Bose)
New Delhi
September 13, 2019
31
