Specific Performance Suit - Appreciation of Evidence - Capacity to purchase =whether the gold ornaments having the value of Rs.24,00,000/- was available with the mother and the wife of the plaintiff. We have noticed the deposition of PW4. He has stated that neither the bills nor receipts relating to the gold ornaments were produced. No documents relating to the ownership of the gold ornaments were also produced. Could it be said, therefore, that the gold ornaments never belonged to the mother and the wife of the plaintiff and the valuation report is therefore robbed of any value that might otherwise be attached to it. It is here we may notice that the family of the plaintiff was possessed of considerable assets even otherwise in terms of landed property. We further notice that the plaintiff has proceeded to purchase another 10 cents during the period when the contract was in existence (relied upon by the trial Court to establish the readiness and willingness in terms of capacity apparently). A1 contract is dated 25.04.2007. Plaintiff was, no doubt, 21 years of age. His father Gopinathan was a witness to A1. Knowing these facts, defendant entered into the agreement, and what is more, received Rs.2 lakhs on the date of the agreement. Further, a sum of Rs.3 lakhs was received under the agreement on 25.08.2007. The property is measured on 16.03.2008. On the third day from 24.03.2008, which was the last day for the execution of the sale deed, i.e., on 27.03.2008, the suit came to be filed. After the advance paid by the plaintiff is deducted, the balance amount including the stamp duty and expenses would not exceed Rs.24 lakhs. There was the testimony of the plaintiff as to how he intended to pay the consideration on 24.03.2008. There was evidence of plaintiff having gold ornaments with him and family members worth about Rs.24 lakhs and cash of about Rs.8 lakhs. It also appeared that one of the family members of the appellant had lands in her name. Even the appellant purchased other land during the period of contract. In regard to the statement by the plaintiff that gold ornaments worth about Rs.24 lakhs were held by him and family members and there was cash of about Rs. 8 lakhs, the plaintiff is not cross-examined as such. At any rate, there is no serious dispute raised when he was cross-examined in this regard. There is no question raised about the family members not making available the gold ornaments or that it was not available with them. The non-availability of bills relating to the gold jewellery to prove ownership as such may not be in the facts of this case fatal to the plaintiff.

1
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3336 OF 2019
(Arising out of S.L.P.(C) No.1701 of 2016)
BHAVYANATH REPRESENTED BY
POWER OF ATTORNEY HOLDER … APPELLANT(S)
 VERSUS
K.V. BALAN (DEAD) THROUGH LRS. … RESPONDENT(S)
J U D G M E N T
K.M. JOSEPH, J.
1. The appeal by Special Leave is directed against
the judgment passed by the High Court of Kerala at
Ernakulam dated 08.10.2015 in RFA No.869 of 2013. The
appellant is the plaintiff in a suit for specific
performance which has been decreed by the trial Court
but on appeal by the defendant dismissed by the
impugned judgment of the High Court. For the sake of
convenience, the parties would be referred hereinafter
as per their status shown in the plaint before the
trial Court.
2
THE AGREEMENT
2. There is no dispute that the plaintiff and the
defendant have indeed entered into an agreement on
25.04.2007. The agreement (marked as A1), inter alia,
provided as follows; The property, which was agreed,
to be sold was mentioned as 75 ¾ cents held by the
defendant as per assignment deed No.1405 of 1975. The
property agreed to be sold included all improvements
thereon including an incomplete RCC house building,
Well, motor shed etc. Payment of Rs.2,00,000/- as
advance was recorded. Towards balance consideration the
plaintiff was to pay the minimum amount of
Rs.3,00,000/- within four months from 25.04.2007. It
is further recited that on such payment, the defendant
will assign land equivalent to Rs.3,00,000/- in favour
of the person nominated by the plaintiff for the
portion agreed by both the parties. The consideration
was fixed at Rs.34,000/- per cent of property to be
found on actual measurement. The time limit was fixed
as "till the 24th day of March, 2008". Time limit was
expressly mentioned as an essential part of the
agreement. The assignment was to be executed either in
3
favour of the plaintiff or any other person nominated
by him in writing. Before the execution of the
assignment deed, the contract further provided that the
plaintiff shall be convinced of the title of the
property and other connected things.
DEVELOPMENTS AFTER THE AGREEMENT
3. It is not in the region of dispute that the
plaintiff paid Rs.3,00,000/- by cheque on 25.08.2007
and it is also endorsed in the agreement. Thereafter,
on 25.01.2008 the defendant sent a lawyers notice to
the plaintiff. Therein it is stated that the defendant
holds 75 ¾ cents as per the assignment deed, already
referred to, which property was agreed to be sold for
Rs.34,000/- in terms of the agreement and the last date
of the agreement was fixed as 24.03.2008. It is further
stated that the plaintiff was to give balance
consideration by deducting the advance within the
stipulated time for which the defendant is ready and
he called upon the plaintiff to get ready for the same
by that time. It is further stated that the plaintiff
had orally offered to the defendant in the presence of
witnesses that he will take assignment of the property
4
even before the stipulated date for which the defendant
is ready.
4. The plaintiff caused a reply notice to be sent to
the aforesaid lawyers notice. The reply notice sent was
dated 18.03.2008. Therein it is relevant to notice
certain statements. After referring to Ext.A1
agreement, it is stated that the lawyers notice was
sent by the defendant without getting the property
measured or producing and convincing the plaintiff
about the original title deed No.1405/1975 as well as
prior documents. It is stated that the plaintiff was
and is continuously ready and willing to perform his
part of the agreement right from the beginning till
then and in future. The statement in the notice, sent
by the defendant, is denied that the plaintiff will
take the assignment before the agreed date and it was
agreed so in the presence of witnesses. It is alleged
that defendant sent the notice with ulterior motive
concealing that property had not been measured and
without producing the original title deed. The
plaintiff pointed out that the defendant consented to
measure the property only three days before that date
5
i.e. on 16.03.2008 (it may be noticed that reply notice
is dated 18.03.2008 and it was sent only later). It was
further stated that the defendant told the plaintiff
that the total extent of property, as per the document,
found on measurement was only 70.950 cents. The case
sought to be set up further is that, according to the
plaintiff, 1 ½ cents of property was not in the
possession or ownership of the defendant. Out of the
70.950 cents of property one cent on the southern
boundary was alleged to belong to one Kochammu and
another ½ cent of property on the northern boundary
belonged to some one else. This information was got by
plaintiff from reliable source. The plaintiff complains
in the reply notice that the defendant was insisting
that he will assign the property only if the
consideration in full for the said 70.950 cents was
paid. Objection was taken to the same by the plaintiff.
Thereafter, it is, inter alia, stated that the
plaintiff is ready and willing to take the assignment
of the entire property available as per the original
document No.1405/1975. The insistence on the part of
the defendant in withholding the original document is
stated to be ill-motivated. The plaintiff thereafter
6
states that he wished to construct residential house
building for his own occupation adjacent to the
property as per agreement which is very close to his
proposed residence. Plaintiff is alleged to have made
solid arrangement for the same. It was specifically,
inter alia, stated that the plaintiff had arranged
balance consideration and he was continuously ready and
willing to take the assignment right from the date of
the agreement i.e. on 24.03.2007 and thereafter in
future as well.
We further notice that on 24.03.2008, which as per
Ext.A1 agreement, was to be the "last date" under the
agreement, the plaintiff and the defendant claimed that
they were present at the office of the Sub Registrar.
According to the plaintiff, the defendant was elusive
and could not be contacted over the phone and he was
unavailable. The plaintiff filed a complaint before the
police on 24.03.2008 in the evening. He also followed
it up with a petition before the Sub Registrar on
25.03.2008. Within three days from 24.03.2008, that is
on 27.03.2008, the present suit came to be instituted,
claiming specific performance. In the plaint, after
referring to the agreement, the plaintiff has alleged
7
that he was always ready and willing to perform his
obligations. The blame was put at the doorstep of the
defendant for breaching the contract. The defendant in
his written statement on the other hand blamed the
plaintiff for breach and it was his case that plaintiff
was not ready and willing and he was not ready with the
funds.
PROCEEDINGS BEFORE THE TRIAL COURT
5. The trial Court struck the following issues; (1)
whether the plaintiff was ready and willing to perform
his part of the contract, (2) whether the defendant
committed breach and (3) whether the plaintiff is
entitled to get a decree for specific performance. The
trial Court, inter alia, found as follows.
"8. It is true that plaintiff has not
produced any document to show that he was
having ready cash covering the balance
consideration, payable by him under Ext.A1,
at the relevant time. Of course, certain
documents are produced to show that presently
he is having some ready cash in the form of
fixed deposits and in the form of share
certificates etc. I do not think that any of
these documents are much relevant in this
case for the reason that in the nature of the
dispute the plaintiff has to prove his
capacity to pay the balance consideration
within the period shown in Ext.A1. Production
of these documents which are admittedly after
8
the suit may not have much evidentiary
value."
6. The trial Court further holds that it is not the
requirement of law that a vendor in a contract for sale
has to carry the balance consideration with him always
till the expiry of the agreement. It is sufficient that
he has enough source to raise the funds as and when
required. Rejecting the contention of the defendant,
that plaintiff did not have money even when he entered
Ext.A1 agreement, it was noticed that admittedly on the
date of agreement Rs.2,00,000/- was paid and
subsequently Rs.3,00,000/- was paid. The explanation
of plaintiff as to why he did not take the proportionate
extent on payment of Rs.3,00,000/-, as provided in the
agreement, was accepted. It was found that the extent
was not found sufficient on the advise of the engineer
to start the construction. The case of the plaintiff,
in fact, is that the idea to purchase the plaint
schedule property was to start a tuition center by
making a partnership between himself and his family
members. Thereafter, it is found as follows in
paragraph 12:
9
"12. Plaintiff has given clear evidence to
the effect that he had sufficient money with
him for completing his part. As already
stated by him, he did not carry the ready
cash with him through out the period of the
agreement. The total amount o f consideration
comes to Rs.25,67,000/-, even if the extent
is taken as 75 3/4 cents. It is contended
that plaintiff was only a student at the time
of Ext.A1. He is so described in Ext.A1 also.
PW1 says that even at that time he was
employed. True, one cannot expect that from
his employment alone he could have mobilized
the balance consideration. The income tax
returns filed by him show his salary and
prove the above fact. But there is ample
evidence to show that his father was actively
involved in the transaction. PW1 has deposed
that his family members were possessing gold
ornaments worth Rs.25,00,000/- and he was
having cash amount of Rs.8,00,000/- at the
relevant time. The defendant has no case that
the plaintiff was not supported by his
father. In fact, the active involvement of
his father in the transaction is rather
admitted by defendant himself. Plaintiff has
produced several documents to show that his
parents are having sufficient properties and
gold ornaments. Of course, most of them are
after suit documents. But there is an
admission made by DW1 that after Ext.A1, the
plaintiff has purchased an adjacent plot
measuring 10 cents. Considering the totality
of the evidence available, I am inclined to
hold that the plaintiff was having capacity
to raise the balance consideration had the
necessity arisen. Therefore, I am inclined to
accept the evidence of PW1 that he was ready
with the balance consideration or at least he
was capable of raising the balance
consideration as and when required."
10
7. The trial Court thereafter also rendered findings
on the issue as to whether the defendant had committed
breach. The contention of the plaintiff that the
lawyers notice dated 25.01.2008 sent by the defendant
was issued with ulterior motive was accepted. It was
found that under Ext.A1 agreement the property was to
be measured and the actual extent was to be
ascertained. Before sending lawyers notice, the
defendant had not got the property measured. It was for
the defendant to get the property measured. Referring
to the admissions made by the defendant, it was found
that he had not taken any step for measuring the
property. The admission that the defendant was aware
on the date of Ext.A1 agreement that the entire extent
of 75 ¾ cent was not available is referred to. The case
of the defendant that the property was measured by the
plaintiff on 16.05.2007 was found unacceptable. The
case of the plaintiff was that on 16.05.2007 he along
with engineer inspected the site to find out the
possibility of construction in the extent falling
proportionately to the amount of Rs.3,00,000/- was
explored. Defendant was to convince the plaintiff
regarding the title deed and the tax receipt. The
11
plaintiff had got marked Ext.A9 and A10, encumbrance
certificate. They revealed that mortgage was created
by the defendant over the property in the year 1983.
No entry regarding the clearance of the mortgage was
found. The case of the defendant that he had obtained
the release deed was found unacceptable by noting that
the release deed was neither produced nor there is any
evidence to prove that fact. Thus, the defendant had
breached his obligation under the contract. The
plaintiff got the property measured through the village
officials on 16.03.2008 in the presence of the
defendant. The trial Court relied on Ext.A42, the copy
of the counter, filed by the defendant to interlocutory
application, filed by the plaintiff, wherein the
defendant has averred that the plaintiff and his father
got convinced to the actual extent as 70.950 cents by
measuring the property. The trial Court found this to
be a case of the defendant accepting that the
measurement was done on 16.03.2008. The measurement on
16.03.2008 was arranged and paid for by the plaintiff.
It again, according to the trial Court, indicated the
readiness and willingness on the part of the plaintiff
and that the defendant was negligent in performing his
12
part. In Court, the property was got measured by the
Commissioner with the help of Taluk Surveyor. Ext.C2
is the report and Ext.C2(a) is the survey plan prepared
by Commissioner. They show that extent in possession
of the defendant on the strength of the title deed is
71.70 cents. 4.25 cents has been taken out from the
property of the defendant for road. Another extent of
0.375 cents was found to be in the possession of a
third party. These facts are found to be admitted by
defendant as DW1. Measurement in such circumstances was
found absolutely necessary for the completion of the
sale transaction. As regards both, the plaintiff and
defendant, asserting that they were before the Sub
Registrar on 24.03.2008, the trial Court found no
meaning in the same. Both sides were aware that without
measurement it would not have been possible to complete
the transaction. The plaintiff found on measurement
that only lesser extent is available. Appearance before
the Sub Registrar could not be considered as an act
showing the readiness and willingness, it was found
both for the plaintiff and the defendant. Dehors this
act, the trial Court found there were other
circumstances which proved readiness and willingness
13
of the plaintiff. No default on the part of the
plaintiff being found and breach being found on the
part of the defendant and still further finding no
undue hardship even being complained of by the
defendant, the trial Court decreed the suit by
directing specific relief against the defendant.
Defendant appealed.
FINDINGS OF THE HIGH COURT
8. The High Court, inter alia, has entered into the
following findings. It referred to para ‘8’ of the
judgment of the Trial court, which we have extracted.
In paragraphs 23 and 24, the High Court proceeded
to discuss the question whether the defendant was in
breach and this is what the Court proceeded to say:
"23. In so far as the condition requiring
measurement of the amount is concerned,
averments in the plaint itself show that on
16.3.2008, the land was measured. Although it
is case of the respondent that it was he who
got the land measured, the appellant
contended that it was at his instance, the
land was measured. Though evidence is lacking
to conclude this dispute either way, for the
purpose of this case, we do not think it
necessary to resolve this controversy for the
reason that irrespective of who got the land
measured, fact remains that the land was
measured and the parties are in agreement
that on measurement, the extent found was
14
only 71.750 cents. In other words, this shows
that as a result of teh measurement carried
out on 16.3.2008, one of the conditions for
performance of the agreement was satisfied.
24. In so far as the title of the appellant
is concerned, even the respondent plaintiff
has no case that the appellant did not have
title or that it was defective and the
question of handing over the title deds arise
only at the time of execution of the sale
deed. This, therefore, means that no fault
could have been attributed on the part of the
appellant and therefore, the court could have
granted a decree for specific performance of
the agreement only if the respondent had
satisfied the requirements of section 16(c)
of the Specific Relief Act. In so far as this
aspect of the matter is concerned, the
question is whether the respondent has proved
his readiness and willingness to perform the
agreement."
9. After referring to various decisions of this Court
and of the High Court, the High Court proceeded to find
that a finding of breach by the vendor in performing
his obligations would not be sufficient for a Court to
decree specific performance. The breach by the
defendant, in other words, would not absolve the
plaintiff to allege and prove his readiness and
willingness to perform his obligations under the
contract. "Readiness" relates to financial capacity to
pay consideration whereas "willingness relates to the
15
state of mind. Following are the findings which we may
refer to:
"25. While readiness indicates the fiscal
capacity of the respondent to perform the
agreement, willingness indicates his state of
mind. In so far as readiness is concerned,
the further question that is required to be
proved is whether readiness has been proved
on the evidence available. We have already
referred to paragraph 8 of the judgment and
the oral evidence of PW1 which, to our mind,
do not help the respondent plaintiff to prove
his case of readiness or his capacity to
perform the agreement. Turning to the
documents that are relied on, those documents
include Exts.A22 and A23 valuation
certificates of the gold allegedly possessed
by the respondent's mother and wife, which
were marked through PW4. Ext.A24 series and
A25 marked through PW8 are the certificates
issued about the properties allegedly owned
by them. These are documents which were
obtained after 24.3.2008 and are regarding
the assets owned by the father, mother and
wife of the respondent plaintiff. The owners
of these assets have not tendered any
evidence whether the actually possessed these
properties at the time when the agreement was
to be performed and even if they had
possessed these assets, whether they were
willing to part with it in order to enable
the respondent plaintiff to generate funds
out of it towards the sale consideration
payable under Ext.A1. There is also no
averment in the plaint to that effect.
26. In so far Exts.A11 to A16 are concerned,
these again are fixed deposit receipts issued
in the year 2012, which also cannot help the
respondent plaintiff to prove his capacity as
on 24.3.2008 or any time before that. Among
the other documents which were relied on by
the learned counsel for the respondent to
16
contend that the readiness was proved by him,
Exts.A17 and A20 show that his father had
sold certain shares on 3.11.2010. Similarly,
Ext.A18 shows that the respondent had sold
his shares on 31.8.2010. Ext.A19 is yet
another document which show that on
26.12.2011 his mother had sold certain
shares. Exts.A26 and 27 are certificates
issued by the Canara Bank and Union Bank
again in 2013 when the trial was pending,
which show that his father had certain funds
available with him. As in the case of
Exts.A11 to A16, A22, A23, A24 and A25, all
these documents would not show that funds
were available with either of the respondent
or his parents on 24.3.2008 or any time prior
thereto. Therefore, these documents also will
not help the respondent to contend that his
readiness and willingness were proved by him
to substantiate his prayer for specific
performance of Ext.A1 agreement."
10. On the above reasoning, High Court allowed the
appeal and decree of the trial Court was set aside.
11. We have heard Shri K.V. Viswanathan learned senior
counsel for the appellant/plaintiff besides Shri P.N.
Ravindran learned senior counsel for the
respondent/defendant.
12. Learned senior counsel for the plaintiff points
out that High Court committed error in interfering with
the judgment of the trial Court. The principles
17
relating to compliance with Section 16(c) which
enshrines the concept of readiness and willingness on
the part of the plaintiff has not been properly
appreciated. He submitted that plaintiff had sufficient
capacity which is what mattered. The law cannot be
disputed that in a suit for specific performance, the
plaintiff need not have the amount in cash. What is
crucial is whether he has the financial capacity to
perform his obligations. He drew our attention to the
fact that the plaintiff along with members of his
family, which consisted of his father, mother and his
wife, had enough resources. An amount of Rs.5,00,000/-
was already paid. Even the gold ornaments having regard
to their value (valued at Rs.24,00,000/-) besides about
Rs.8,00,000/- in cash held by the plaintiff himself
would suffice. The Court need not even go into the
aspect relating to landed properties and other assets
available. As regards the finding of the High Court
about the certificates relating to landed property,
being later in point of time, it is pointed out that
lands were very much with the members of the family as
on the date of the agreement and the date when the sale
was to be executed. The fact that the certificates were
18
of a later date did not take away the availability of
these assets. He pointed out that, in fact, the dispute
actually centered around the extent of property and the
financial capacity was not in dispute as such.
13. Per contra, Mr. P.N. Ravindran, learned senior
counsel drew our attention in paragraph 8 of the trial
Court which we have already referred to. He further
submitted that as regards the gold ornaments, the
plaintiff has not chosen to examine the members of his
family and without their testimony showing their
willingness to make available their valuables, apart
from the availability of the assets, it could not be
said that the High Court fell into error.
14. Before we advert to the facts it is appropriate to
discuss a few decisions of this Court. In Man Kaur
(Dead) by Lrs. v. Hartar Singh Sangha - (2010) 10 SCC
512, this Court dealt with the contention of the
purchaser in that case that the vendor had committed
the breach and there is no need for the plaintiff to
prove his readiness and willingness. This is what the
Court held in paragraph 40:
19
"40. This contention has no merit. There are
two distinct issues. The first issue is the
breach by the defendant - vendor which gives
a cause of action to the plaintiff to file a
suit for specific performance. The second
issue relates to the personal bar to
enforcement of a specific performance by
persons enumerated in section 16 of the Act.
A person who fails to aver and prove that he
has performed or has always been ready and
willing to perform the essential terms of the
contract which are to be performed by him
(other than the terms the performance of
which has been prevented or waived by the
defendant) is barred from claiming specific
performance. Therefore, even assuming that
the defendant had committed breach, if the
plaintiff fails to aver in the plaint or
prove that he was always ready and willing to
perform the essential terms of contract which
are required to be performed by him (other
than the terms the performance of which has
been prevented or waived by the plaintiff),
there is a bar to specific performance in his
favour. Therefore, the assumption of the
respondent that readiness and willingness on
the part of plaintiff is something which need
not be proved, if the plaintiff is able to
establish that defendant refused to execute
the sale deed and thereby committed breach,
is not correct. Let us give an example. Take
a case where there is a contract for sale for
a consideration of Rs.10 lakhs and earnest
money of Rs.1 lakh was paid and the vendor
wrongly refuses to execute the sale deed
unless the purchaser is ready to pay Rs.15
lakhs. In such a case there is a clear breach
by defendant. But in that case, if plaintiff
did not have the balance Rs.9 lakhs (and the
money required for stamp duty and
registration) or the capacity to arrange and
pay such money, when the contract had to
beperformed, the plaintiff will not be
entitled to specific performance, even if he
proves breach by defendant, as he was not
20
"ready and willing" to perform his
obligations.”
(Emphasis supplied)
15. Taking up the issue relating to measurement of the
property, let us examine the matter in some detail. In
Ext.A1 agreement the defendant had agreed to sell 75 ¾
cents acquired under document No.1405/1975. The price
was fixed as Rs.34,000/- per cent. The extent was no
doubt to be found on actual measurement. The trial
Court found that though it is not stipulated as to who
will carry measurement, but the defendant being in
possession he was, to undertake the measurement. The
defendant, when he was examined as DW1, has inter alia
stated as follows; For the purpose of determination of
sale consideration property had to be measured. He
further states that after one week of the date of
execution of the agreement Gopi brought a person and
measured the property. When he saw the measuring
activity, he went to the property and asked for a copy
of the measurement details, but was not given. We
proceed on the basis that the reference to Gopinath,
is none other than the father of the plaintiff. He
admits that these facts are not stated in the written
21
statement. He states that he did not know about the
measurement of the property on 16.03.2008. There was
no opportunity to get the plaint schedule property
measured before the same was to be assigned. He
specifically states that he has not convinced them the
actual measurement of the plaint schedule property. He
further states that no measurement of the plaint
schedule property was done before the expiry of the
agreement period. He further states that he has not got
measured the extent of property after execution of the
agreement. He states that he does not remember about
the statement in Ext.A42 about the extent of the
property being convinced of by the plaintiff and his
father to be 70.950 cents. He specifically states that
it is not right to say that the plaint schedule property
has been got measured on 16.03.2008. He states that he
was not present at that time. We would think that the
High Court was in error in holding that on measurement
being carried on 16.03.2008, one of the conditions for
the performance of agreement was satisfied if it is
meant to find that the defendant had carried out the
obligations under the contract. It is noticed from
paragraph 23 of the impugned judgment that contrary to
22
his deposition, which we have adverted to as DW1, it
was contended on behalf of the defendant that the
measurement on 16.03.2008 was at his instance. It is
noticed that under Ext.A1 agreement the extent was
stated to be 75 ¾ cents, under a particular assignment
deed. The consideration was undoubtedly fixed with
regard to the actual extent at the rate of Rs.34,000/-
per cent. It is clear that the measurement was
essential for executing the conveyance and the
performance of further mutual obligations. When the
lawyers notice was caused to be sent on 24.01.2008 by
the defendant, he adverts to 75 ¾ cents. There is no
reference of any measurement having been done on
16.05.2007. We are inclined to find that it was the
plaintiff who took the initiative and the property
indeed was measured on 16.03.2008. We are further
inclined to agree with the trial Court that the
plaintiff, it is who financed the measurement by making
payment as he claimed. Testimony of the witness
accepted by the trial Court, which has had opportunity
to watch the demeanour of the witness is not to be
likely shaken by the appellate court.
23
16. Still further the next finding by the High Court
is contained in paragraph 24 of its judgment. The Court
proceeds to hold that even the plaintiff has no case
that the defendant did not have title or that it was
defective and the question of handing over title deed
arises only on the execution of the sale deed and
therefore no fault could be attributed to the
defendant.
17. In this regard there are two aspects which we would
think has not been considered by the High Court. We
have adverted to the statements in the reply notice
sent dated 18.03.2008 by the plaintiff. The measurement
took place on 16.03.2008. On measurement it appears to
have been found that the extent available with the
defendant was 70.950 cents. However, plaintiff found
that one cent out of the 70.950 cents was not with the
defendant and instead was with one Kochammu and half
of cent was with somebody else in the northern side.
However, when this was brought to the notice of
defendant, according to plaintiff, he wanted payment
on the basis that he had the whole of 70.950 cents.
Therefore, the said question related to the title of
24
the defendant, a question relating to the exact extent
available for being conveyed. Secondly and far more
importantly, admittedly there was a mortgage over the
plaint schedule property created in 1983 by the
defendant. Encumbrance certificates produced by the
plaintiff has been relied upon by the trial Court to
find that the mortgage had not been cleared. The
defendant in his evidence as DW1 sets up the case that
the mortgage was cleared and release deed was available
with him. It is at his home. On the one hand, the
encumbrance certificates did disclose the mortgage and
they did not reveal the clearing of the mortgage. The
defendant on the other hand, though setting up the case
that the debt was paid of and mortgage was got released
but did not choose to produce the evidence which was
in his possession.
18. The High Court has overlooked this aspect and came
to the conclusion that there was no dispute relating
to the title. Under Ext.A1 agreement, it was incumbent
upon the defendant to convince the plaintiff about the
title of the property and other connected things. No
doubt, the plaintiff had made a demand for the original
25
title deeds relating to the property, as he wanted to
use them for the purpose of taking a loan in connection
with his proposed construction. This we do not think
he was entitled under the contract and if the defendant
refused the title deeds we would not be in a position
to blame him. We are, therefore, of the view that the
High Court has fallen into an error in reversing the
finding that the defendant was in breach of his
obligations.
19. We have noticed the law to be that it does not
suffice for the plaintiff in a suit for specific
performance to establish that the defendant was in
breach to seek a decree for specific relief. The
plaintiff must further establish, if it is contested
that he was ready and willing from the date of the
contract to perform his obligations.
20. In a contract, a contract usually embodies mutual
obligations. The order of performance of obligations
by the parties to the contract would have an impact on
the aspect relating to readiness and willingness
undoubtedly. In fact, readiness and willingness on the
part of plaintiff makes its appearance right from the
26
time of the reply notice sent by the plaintiff and
continued in his pleadings. We are, however, concerned
in this case only with the aspect relating whether he
has proved despite what he might have established
against the defendant that he was ready to perform his
obligations. To begin with, the plaintiff has filed the
suit on 27.03.2008. It must be remembered that under
Ext.A1 agreement, the last date for executing the sale
deed was 24.03.2008. This means on the third day of the
date fixed under the contract on the allegation that
the defendant resiled from the promise to execute the
sale deed, the plaintiff has knocked at the doors of
the Court seeking specific relief.
21. The second thing which no doubt appears in favour
of the plaintiff is that on the date of the agreement,
which was 25.04.2007, admittedly an amount of
Rs.2,00,000/- was paid as advance within four months
of the agreement, again, indisputably a further sum of
Rs.3,00,000/- came to be paid by the plaintiff and
accepted by the defendant. The further question that
arises, however, is whether the High Court was right
in holding that the plaintiff was not in a position to
27
perform the financial obligations under the contract.
At this juncture, let us examine the state of the
evidence adduced by the parties.
22. The plaintiff has examined himself as PW1 and
further examined eight other witnesses. He has also
marked Ext.A1 to A42. The defendant has examined
himself as DW1. There are other Court exhibits which
are related to financial position of the plaintiff.
23. Not unnaturally, we must first look to what the
plaintiff has deposed before the Court. The plaintiff
says, inter alia, as follows in his cross-examination;
During the period of Ext.A1 agreement I was a student.
He added that he had a part time teaching job and
consultancy service. The plaintiff claimed that he was
a teacher in an academy. He produced income tax
returns. He was asked the following questions. At the
time of the filing of the suit, you have not produced
any document showing availability of money required for
taking assignment of the property. Whether there is any
specific reason for the same (Question)? There is no
specific reason for the same (Answer). Is there any
28
reason for not stating in the plaint in what way the
amount required was arranged (Question)? No special
reasons (Answer). How much amount was arranged by you
on 24.03.2008 to take assignment of plaint schedule
property (Question)? There was gold jewelry worth
Rs.24,00,000/- held by myself and my family members.
Besides, about Rs.8,00,000/- was arranged in cash also
(Answer). He states that he has understood that the
main dispute in this case is that he was not having the
capacity to raise the consideration as per Ext.A1
agreement. Another question which was put to the
plaintiff is as follows. Apart from producing certain
documents on 02.02.2013 showing availability of funds,
you have not produced any other document before that
to show funds (Question)? No (Answer).
24. We must notice that Shri K.V. Viswanathan, learned
senior counsel would submit that High Court has
appreciated aforesaid question and answer erroneously.
He pointed out that actually when the plaintiff
answered 'no', it should be understood the meaning was
that he was denying the suggestion that the plaintiff
had not produced any document to show funds. He would
29
submit that had the answer been yes, it could be
inferred that there was no document. The plaintiff
continues and states six documents being Ext.A11 to A16
are of the year 2012. The number of shares are not
mentioned in Ext.A17. The plaintiff has further
apparently, with reference to income tax returns Ext.35
and 36, stated that income has been shown as
Rs.1,18,000/- and Rs.1,32,000/- for the assessment
years 2007-08 and 2008-09 respectively. No doubt there
is no mention about his investments and shares in the
income tax returns. Plaintiff claimed that during the
year 2004-05 his income was about Rs.30,000/- and
during 2005 the same was around Rs.60,000/-. He joined
an academy as a teacher in the year 2006. He resigned
from the same during the year 2011. During the period
2006-08 he purchased and sold 22 cents of land.
Plaintiff does not remember the price at which the
property was purchased. He denied the suggestion that
he was not having the money to purchase the property
admeasuring 70.950 cents or as reduced by 1 ½ cents.
He was having required amount then and now and he was
ready and willing to take the property, he deposed.
30
25. PW2 is a Managing Director of financial company.
He has produced and marked Ext.A19 certificate relating
to shares held by the mother of the plaintiff.
26. PW3 is a Depository Participant of a broker. He
was examined to prove the shares held by his mother.
He states that he came to depose on being asked to do
so by Gopinathan (father of the plaintiff).
27. PW4 is a Government Gold Valuer of Income Tax
department and he has proved Ext.A22 valuation report
issued to the mother of the plaintiff after examining
her gold ornaments. He has also proved Ext.A23
valuation report, issued to the wife of the plaintiff,
after examining her gold ornaments. In crossexamination he would also state that he has not
received summons from the court, but was asked by
Gopinathan (father of the plaintiff). He states that
he has previous acquaintance with Gopinathan. He came
for valuation and thus he knew him. He states further
in cross-examination that the mother and wife of the
plaintiff came to him for valuation along with
Gopinathan. He further states that they neither
31
produced nor he demanded the bills or receipts relating
to the gold ornaments he valued that day. He further
states that they did not produce any document showing
ownership of the gold ornaments mentioned in Ext.A22
and A23 jewelery produced for valuation. In
reexamination, he points out that Gopinathan, who came
on the date of the gold valuation was sitting in the
Court.
28. PW5 is the Branch Manager of the Syndicate Bank.
He has marked Ext.A41. In cross-examination he states
that the loans were availed on 14.07.2012 and
22.03.2012. He further states that Syndicate Bank
advances loan at the rate of Rs.2100/- per gram of
gold. The two loans were given for agricultural
purposes.
29. PW6 is the Manager of Union Bank and he approved
Ext.A27. Again he is produced to prove gold loan which
is issued for agricultural purposes. The loan was
issued on 12.01.2013. The loan was given at the rate
of Rs.2000/- per gram of gold.
32
30. PW7 is the Chairman and Managing Director of
Financial Chits Company. He proved Ext.A17, 18, 20 and
21. In cross-examination he states he knows Gopinathan.
He states that he (Gopinathan) is practising as an
accountant and auditor in the next building. He states
that the shares held by him as per Ext.A20 was
transferred from his name on 03.11.2010. At present
Gopinathan and his son, the plaintiff, did not hold any
shares in the companies. The value of one share he
states is Rs.100/-. The plaintiff is not having any
share as per Ext.A17. He is holding only 250 shares.
31. PW8 has proved Ext.A24 and A25 reports. He claims
to be the valuer of property. He has valued as on 2008.
He denied the allegation that the present fair value
is less than the value shown in the report. When he was
asked what is the fair value of the properties, as
determined by the government, the answer was that he
has to verify. On similar lines was the answer in
respect of another piece of land. In answer to the
question whether he was ever verified the fair value
of the survey, the answer is in negative. Gopinathan
was known to him since last 12 years and he described
33
him as an auditor. He says that he is not acquainted
to his son (apparently the plaintiff).
32. PW-9 is the Manager of Canara Bank and he proved
Ext.A26 certificate. Apparently, it related to a gold
loan.
33. Coming to the evidence of defendant, we notice the
following inter alia; He was aware that as on the date
of agreement the extent of plaint schedule property did
not have an extent of 75 ¾ cents. He says that he knew
right from the date of the agreement that the plaintiff
is not having money to purchase the plaint schedule
property. When he was asked what was the reason for
sending the lawyers notice on 25.01.2008, his answer
was as follows: It was heard that plaintiff is trying
to resell the plaint schedule property to third parties
as he was not having money to purchase the same, hence,
the said notice was sent. He further states that he did
not know anything about the schedule of witnesses
submitted in the Court by him including the names of
witnesses as (1) Rajesh and (2) Muhammed. He says that
he does not remember the fact that in the counter to
the injunction petition, he had stated that the
34
plaintiff told Rajesh to find prospective buyers for
reselling the plaint schedule property on piecemeal
basis. He further states that anyhow Rajesh and
Muhammed were not examined as witnesses before the
Court. He denies that plaintiff was ready with the
money to purchase the plaint schedule property.
34. The plaintiff on the date of the suit in the year
2007 was 21 years. The agreement would show that the
witnesses to the agreement are one Manoharan, who is
none other than the son of the defendant and the other
witness is Gopinathan, the father of the plaintiff. The
trial Court has entered a finding that Gopinathan was
actively involved in the contract. We have eluded to
the fact that Gopinathan was a witness to the agreement
to safely conclude that the father of the plaintiff was
in the know of things and he was involved in the
transaction. We have referred to Gopinathan, figuring
in the deposition to arrive at the conclusion that the
plaintiff, though the actual party to the agreement,
the moving force and one who intended to support the
plaintiff was his father. The assets which are relied
on by the plaintiff to establish his financial capacity
35
would appear to belong to the close relatives of the
plaintiff, namely, his father, his mother and his wife.
We must recall that in his deposition PW1, when he was
asked as to on what basis he would claim that he had
the financial capacity on 24.03.2008, his answer was
that he had gold ornaments which were worth about
Rs.24,00,000/- and he had about Rs.8,00,000/- in cash
having regard to the payment of Rs.5,00,000/- by way
of advance and further payment to be made, after making
the advance, if Rs.24,00,000/- worth of gold being in
the possession of the plaintiff’s family members
besides Rs.8,00,000/- was there, certainly that would
suffice to establish the case of the plaintiff about
his financial capacity and readiness to perform the
contract. The law is certainly not that the purchaser
in a suit for specific relief must prove that he was
having cash with him from the date of the agreement
till the relevant date. What is important is that he
had the capacity to allow the deal to go through. If
gold was available, as claimed, we would think that on
a pragmatic view of the matter, it may be idle to
contend that it could not be converted into cash either
by immediate sale or by raising a loan.
36
35. We must, however, deal with certain other
contentions before we come to a conclusion in this
regard. The defendant has undoubtedly a case that the
gold ornaments though claimed to be that of the mother
and the wife of the plaintiff, without examining them
as witnesses and without their deposition showing that
they had those gold ornaments in their possession and
that they were willing to employ them for the purpose
of generating funds for the plaintiff, the Court cannot
conclude the matter in favour of the plaintiff. We
would think that it may be true that in a case of this
nature and in view of the context, it may have been
more appropriate that the relatives were examined.
Their non-examination, however, may not fatal to the
plaintiff. It must be realized that the relatives
involved are none other than the mother and the wife
of the plaintiff. Though subsequent their inclination
can be inferred from their going to the valuer PW4. In
such circumstances, we would think, it may be carrying
matters a little too far to decline specific relief,
particularly which was granted by the trial Court in
its discretion to contend that the mother and the wife 
37
have not come forward to express their willingness to
make available ornaments for the purpose of the
plaintiff. In fact, no suggestion is seen put to the
plaintiff about the same.
36. The further question may, however, arise as on the
relevant date whether the gold ornaments having the
value of Rs.24,00,000/- was available with the mother
and the wife of the plaintiff. We have noticed the
deposition of PW4. He has stated that neither the bills
nor receipts relating to the gold ornaments were
produced. No documents relating to the ownership of the
gold ornaments were also produced. Could it be said,
therefore, that the gold ornaments never belonged to
the mother and the wife of the plaintiff and the
valuation report is therefore robbed of any value that
might otherwise be attached to it.
37. It is here we may notice that the family of the
plaintiff was possessed of considerable assets even
otherwise in terms of landed property. We further
notice that the plaintiff has proceeded to purchase
another 10 cents during the period when the contract 
38
was in existence (relied upon by the trial Court to
establish the readiness and willingness in terms of
capacity apparently).
38. A1 contract is dated 25.04.2007. Plaintiff was, no
doubt, 21 years of age. His father Gopinathan was a
witness to A1. Knowing these facts, defendant entered
into the agreement, and what is more, received Rs.2
lakhs on the date of the agreement. Further, a sum of
Rs.3 lakhs was received under the agreement on
25.08.2007. The property is measured on 16.03.2008. On
the third day from 24.03.2008, which was the last day
for the execution of the sale deed, i.e., on
27.03.2008, the suit came to be filed. After the
advance paid by the plaintiff is deducted, the balance
amount including the stamp duty and expenses would not
exceed Rs.24 lakhs. There was the testimony of the
plaintiff as to how he intended to pay the
consideration on 24.03.2008. There was evidence of
plaintiff having gold ornaments with him and family
members worth about Rs.24 lakhs and cash of about Rs.8
lakhs. It also appeared that one of the family members
of the appellant had lands in her name. Even the 
39
appellant purchased other land during the period of
contract. In regard to the statement by the plaintiff
that gold ornaments worth about Rs.24 lakhs were held
by him and family members and there was cash of about
Rs. 8 lakhs, the plaintiff is not cross-examined as
such. At any rate, there is no serious dispute raised
when he was cross-examined in this regard. There is no
question raised about the family members not making
available the gold ornaments or that it was not
available with them. The non-availability of bills
relating to the gold jewellery to prove ownership as
such may not be in the facts of this case fatal to the
plaintiff.
39. Having regard to the totality of the facts present,
we are of the view that the High Court erred in
interfering with the decree passed by the Trial Court.
We notice that the appellant has deposited the sum of
Rs.19,37,8000/- (balance amount) with the Government
Treasury immediately after judgment dated 10.06.2013.
While we are inclined to direct specific relief in
favour of the appellant, we are of the view that we
should also direct that interest at the rate of 6 per 
40
cent on Rs.19,37,8000/- from 27.03.2008 (date of suit)
till date of deposit (in Government Treasury) should
be directed to be paid over and above the balance amount
to the respondents in exercise of our power under
Article 142 of the Constitution of India. Hence, we
allow the appeal, set aside the judgment of the high
Court and restore the decree passed by the Trial Court,
subject to the following modifications.
40. We further direct that appellant shall pay a sum
calculated at 6 per cent per annum on Rs.19,37,800/-
from 27.03.2008 till the date of deposit in Government
Treasury in 2013 also, apart with the balance to be
paid. The respondents can withdraw the balance payment
(i.e., Rs.19,37,800/-) as also amount calculated at 6
per cent on Rs.19,37,800/- as aforesaid. The balance,
if any, in the Government Treasury, can be withdrawn
by the appellant. If the amount in the Government
Treasury does not attract interest, the appellant shall
deposit the amount of interest as calculated within 10
weeks from today which can be withdrawn by the
respondents. It is only after payment of interest as
aforesaid, that the conveyance deed need be executed.
41
41. The parties shall bear their own costs.
.......................J.
 (ASHOK BHUSHAN)
.......................J.
 (K.M. JOSEPH)
New Delhi,
September 12, 2019.

“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. = 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.

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

It is settled law that the acquittal by a Criminal Court does not preclude a Departmental Inquiry against the delinquent officer. The Disciplinary Authority is not bound by the judgment of the Criminal Court if the evidence that is produced in the Departmental Inquiry is different from that produced during the criminal trial. The object of a Departmental Inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The standard of proof in a Departmental Inquiry is not strictly based on the rules of evidence.

Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 7279 of 2019
(Arising out of SLP (C) No. 25909 of 2013)
Karnataka Power Transmission
Corporation Limited, Represented
by Managing Director (Admin. and HR) ... Appellant(s)
Versus
Sri C. Nagaraju & Anr. ….Respondent (s)
J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted.
1. The judgment of the High Court by which the order
of dismissal of Respondent No.1 from the service was set
aside is the subject matter of this Appeal. Respondent
No.1 was appointed as a Meter Reader-cum-Clerk in the
Karnataka Power Transmission Corporation Limited
(KPTCL) in the year 1974. He was promoted as a Junior
Engineer in the year 1997. On 21.06.2003, Additional
Registrar of Enquiries-I, Karnataka Lokayukta, Bangalore
[1]
framed a charge against the Respondent which is as
follows:
“Charge:
That you DBE Sri. C. Nagaraju, while working
as Junior Engineer (Elecl.,) at KEB, VV-1 (O&M)
South Zone, Vidyaranyapuram Circle, Mysore
during the year 1998, one Sri. K. Chandrasekhar,
Class II Electrical Contractor, Resident of
Vidyaranyapuram, Mysore, (hereinafter called as
‘Complainant’) had approached you for obtaining
electrical power supply to the house and shop of
his customer Smt. Savithramma, on 14-5-
1998, and you demanded a sum of Rs.1,250/- as
illegal gratification, and on 16-5-1998 you once
again demanded and accepted illegal gratification
of Rs.750/- as advance amount, from the
complainant for doing the said work of giving
electrical power supply, and thereby you being a
public servant failed to maintain absolute integrity
and devotion to duty and did an act which was
unbecoming of a Government servant and thereby
[2]
you have committed an act of misconduct as
enumerated under Rule 3(1)(i) & (iii) of K.E.B.
Employees Service (Conduct) Regulation Rules,
1988.”
2. The Respondent submitted his explanation to the
charge. After conducting an inquiry, Additional Registrar
of Enquiries-I, Karnataka Lokayukta, who was nominated
as the Inquiry Officer, held that the charge against
Respondent No.1 was proved. The Lokayukta examined
the inquiry report and approved the findings of the
Inquiry Officer. Having regard to the serious misconduct
committed by Respondent No.1, the Lokayukta imposed
the penalty of dismissal from service under Clause VIII of
Regulation No.9 of Karnataka Electricity Board Employees
(Classification, Discipline, Control and Appeal)
Regulations, 1987.
3. The final notice was issued by the Appellant seeking
an explanation from Respondent No.1 as to why the
report of the Inquiry Officer should not be accepted. The
reply submitted by Respondent No.1 was considered, and
[3]
by an order dated 23.03.2007, Respondent No.1 was
dismissed from service. The said order was affirmed by
the Appellant Authority on 24.06.2008. Aggrieved by the
order of dismissal from service, Respondent No.1 filed a
writ petition in the High Court of Karnataka which was
allowed by a learned single Judge by a judgment dated
08.09.2011. The Writ Appeal filed by the Appellant was
dismissed by the Division Bench. Dissatisfied with the
judgment of the High Court, the Appellant is before this
Court.
4. It is relevant to note that Respondent No.1 was tried
by the Court of Special Judge, Mysore (hereinafter
referred to as “the Criminal Court”) for committing
offences under Sections 7, 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act, 1988 (“the PC
Act”). He was acquitted by the Criminal Court as the
prosecution witnesses turned hostile and did not support
the case of the prosecution.
5. The learned single Judge of the High Court allowed
the Writ Petition relying upon the judgments of this Court
[4]
in Captain M. Paul Anthony v. Bharat Gold
Mines Ltd.
1
 and G.M. Tank v. State of Gujarat.
2
 It
was held that the charges in the departmental inquiry
and the criminal case are the same and Respondent No.1
ought not to have been dismissed from service after he
was found not guilty by the Criminal Court. The Division
Bench upheld the judgment of the learned single Judge
by observing that an order of dismissal from service
could not have been passed once the Respondent was
honourably acquitted by the Criminal Court.
6. The learned counsel appearing for the Appellant
submitted that the charges framed against Respondent
No.1 in the Criminal Court and the Departmental
Inquiries were different. He submitted that the
complainant resiled from his statement and turned
hostile before the Criminal Court. He further submitted
that the evidence which was the basis of the order of
dismissal was different from the evidence before the
Criminal Court. By relying upon the judgments of this
Court, the learned counsel emphasized that an acquittal
1 (1999) 3 SCC 679
2 (2006) 5 SCC 446
[5]
by a Criminal Court does not bar a departmental
proceeding. According to him, the standard of proof in a
criminal trial is different from what is required for a
departmental proceeding. Strict rules of evidence are
followed in criminal proceedings whereas preponderance
of probabilities is what is taken into consideration in a
departmental inquiry. Reliance was placed by the learned
counsel for the Appellant on the judgments of this Court
in Depot Manager, A.P. State Road Transport
Corporation v. Mohd. Yousuf Miya
3
 and Ajit Kumar
Nag v. General Manager (PJ), Indian Oil Corpn. Ltd.,
Haldia.
4

7. The learned counsel for Respondent No.1 justified
the judgments of the High Court by arguing that an order
of dismissal cannot be passed by the Appellant after he
was honourably acquitted by the Criminal Court. He
stated that the essence of the charge in the criminal trial
and the departmental inquiry is the same. He supported
the judgment of the High Court by submitting that
the Departmental Authorities were bound by the
3 (1997) 2 SCC 699
4 (2005) 7 SCC 764
[6]
judgment of the Criminal Court. He urged that there is
no truth in the allegation of demand and acceptance of
illegal gratification against Respondent No.1. He further
submitted that the evidence adduced in the
departmental inquiry is not sufficient for warranting the
imposition of the penalty of dismissal from service.
8. Mr. Chandrasekhar who was an electrical contractor
submitted a complaint in which it was stated that he
made an application for an electrical connection in favour
of his client, Mrs. Savithri. He alleged in the complaint
that Respondent No.1 demanded a bribe of Rs.1250/- for
giving the electricity connection. After negotiation, the
amount of bribe was reduced to Rs.750/-. Unwilling to
pay the illegal gratification, Mr. Chandrasekhar lodged a
complaint before the Lokayukta Police on 15.05.1998. A
case was registered under Sections 7, 13(1)(d) read with
Section 13(2) of the PC Act. A trap was laid and
Respondent No.1 was caught accepting the amount of
Rs.750/- from Mr. Chandrasekhar. The right hand of
Respondent No.1 was washed in Sodium Carbonate
solution and it turned into pink colour. The complainant
[7]
appeared before the Inquiry Officer and deposed against
Respondent No.1 about demand and acceptance of illegal
gratification. That apart, the complainant Mr.
Chandrasekhar also gave details about the trap laid down
by the Lokayukta Police. Mr. Santhosh Kumar, Deputy
Superintendent of Police who conducted the trap was
examined as PW3. After taking into account the
evidence, the Inquiry Officer held Respondent No.1
guilty of the charge. Considering the gravity of
misconduct in demanding and accepting illegal
gratification, the Disciplinary Authority found Respondent
No.1 not fit to continue in service.
9. Acquittal by a criminal court would not debar an
employer from exercising the power to conduct
departmental proceedings in accordance with the rules
and regulations. The two proceedings, criminal and
departmental, are entirely different. They operate in
different fields and have different objectives.5
 In the
disciplinary proceedings, the question is whether the
Respondent is guilty of such conduct as would merit his
5 Ajit Kumar Nag (supra)
[8]
removal from service or a lesser punishment, as the case
may be, whereas in the criminal proceedings, the
question is whether the offences registered against him
under the PC Act are established, and if established, what
sentence should be imposed upon him. The standard of
proof, the mode of inquiry and the rules governing
inquiry and trial in both the cases are significantly
distinct and different.6

10. As the High Court set aside the order of dismissal on
the basis of the judgments of this Court in Captain M.
Paul Anthony (supra) and G.M. Tank (supra), it is
necessary to examine whether the said judgments are
applicable to the facts of this case. Simultaneous
continuance of departmental proceedings and
proceedings in a criminal case on the same set of facts
was the point considered by this Court in Captain M.
Paul Anthony’s case (supra). This Court was of the
opinion that departmental proceedings and proceedings
in a criminal case can proceed simultaneously as there is
no bar. However, it is desirable to stay departmental
6 State of Rajasthan v. B.K. Meena (1996) 6 SCC 417
[9]
inquiry till conclusion of the criminal case if the
departmental proceedings and criminal case are based
on identical and similar set of facts and the charge in the
criminal case against the delinquent employee is of a
grave nature which involves complicated questions of
law and fact. On the facts of the said case, it was found
that the criminal case and the departmental proceedings
were based on identical set of facts and the evidence
before the Criminal Court and the departmental inquiry
was the same. Further, in the said case the
departmental inquiry was conducted ex parte.
In such circumstances, this Court held that the ex parte
departmental proceedings cannot be permitted to stand
in view of the acquittal of the delinquent by the Criminal
Court on the same set of facts and evidence. The said
judgment is not applicable to the facts of this case. In
the present case, the prosecution witnesses turned
hostile in the criminal trial against Respondent No.1. He
was acquitted by the Criminal Court on the ground that
the prosecution could not produce any credible evidence
to prove the charge. On the other hand, the complainant
[10]
and the other witnesses appeared before the Inquiry
Officer and deposed against Respondent No.1. The
evidence available in the Departmental Inquiry is
completely different from that led by the prosecution in
criminal trial.
11. Reliance was placed by the High Court on a
judgment of this Court in G.M. Tank (supra) whereby the
Writ Petition filed by Respondent No.1 was allowed. In
the said case, the delinquent officer was charged for an
offence punishable under Section 5(1)(e) read with
Section 5(2) of the PC Act, 1988. He was honourably
acquitted by the criminal court as the prosecution failed
to prove the charge. Thereafter, a Departmental
Inquiry was conducted and he was dismissed from
service. The order of dismissal was upheld by the High
Court. In the Appeal filed by the delinquent officer, this
Court was of the opinion that the departmental
proceedings and criminal case were based on identical
and similar set of facts. The evidence before the
Criminal Court and the departmental proceedings being
exactly the same, this Court held that the acquittal of the
[11]
employee by a Criminal Court has to be given due weight
by the Disciplinary Authority. On the basis that the
evidence in both the criminal trial and Departmental
Inquiry are the same, the order of dismissal of the
Appellant therein was set aside. As stated earlier, the
facts of this case are entirely different. The acquittal of
Respondent No.1 was due to non-availability of any
evidence before the Criminal Court. The order of
dismissal was on the basis of a report of the Inquiry
Officer before whom there was ample evidence against
Respondent No.1.
12. In Krishnakali Tea Estate v. Akhil Bhartiya
Chah Mazdoor Sangh
7
 this Court was concerned with
the validity of the termination of the services of workmen
after acquittal by the Criminal Court. Dealing with a
situation similar to the one in this case, where the
acquittal was due to lack of evidence before criminal
court and sufficient evidence was available before the
Labour Court, this Court was of the opinion that the
7 (2004) 8 SCC 200
[12]
judgment in Captain M. Paul Anthony’s case (supra)
cannot come to the rescue of the workmen.
13. Having considered the submissions made on behalf
of the Appellant and the Respondent No.1, we are of the
view that interference with the order of dismissal by the
High Court was unwarranted. It is settled law that the
acquittal by a Criminal Court does not preclude a
Departmental Inquiry against the delinquent officer. The
Disciplinary Authority is not bound by the judgment of
the Criminal Court if the evidence that is produced in the
Departmental Inquiry is different from that produced
during the criminal trial. The object of a Departmental
Inquiry is to find out whether the delinquent is guilty of
misconduct under the conduct rules for the purpose of
determining whether he should be continued in service.
The standard of proof in a Departmental Inquiry is not
strictly based on the rules of evidence. The order of
dismissal which is based on the evidence before the
Inquiry Officer in the disciplinary proceedings, which is
different from the evidence available to the Criminal
[13]
Court, is justified and needed no interference by the High
Court.
14. For the aforementioned reasons, the Appeal is
allowed.

…................................J.
 [L. NAGESWARA RAO]


 ..…….............................J.
 [HEMANT GUPTA]
New Delhi,
September 16, 2019
[14]