# JOSE PAULO COUTINHO v. MARIA LUIZAVALENTINA PEREIRA & ANR

- **Citation:** [2019] 12 S.C.R. 390
- **Court:** Supreme Court of India
- **Decided:** 2019-09-13
- **Case number:** Civil Appeal No. 7378 of 2010
- **Bench:** Deepak Gupta, Aniruddha Bose
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jose-paulo-coutinho-v-maria-luizavalentina-pereira-anr-33193
- **Pages:** 25

## Headnote

Portuguese Civil Code, 1867:
Whether Portuguese Civil Code, a foreign law - Applicability
of principles of private international law, to the Code - Held:
Portuguese law which may have had foreign origin became a part
of the Indian laws - It is an Indian law and no longer a foreign law
- Goa is a territory of India, all domiciles of Goa are citizens of
India - Portuguese Civil Code is applicable only on account of the
Goa, Daman and Diu (Administration) Ordinance, 1962 and the
Goa, Daman and Diu (Administration) Act, 1962 - Thus, the
Portuguese Civil Code is an Indian law and no principles of private
international law are applicable - Goa, Daman and Diu
(Administration) Act, 1962.
Property of a Goan domicile outside the territory of Goa, if
governed by the Code or by Indian Succession Act or by personal
laws, as applicable in the rest of the country - Held: Domicile of
Goa, who starts living in Bombay or in any other part of India,
cannot be said to be Portuguese and he cannot 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 - 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 s. 5 of the Indian Succession Act or the laws of succession
would not be applicable to such Goan domiciles - Indian Succession
Act, 1925.
Grant of probate by the High Court of Bombay at Goa in
respect of the Will executed by the father - Effect of, on the laws of
inheritance - Held: Jurisdiction of a probate court is limited to
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decide whether the Will is genuine or not - Grant of probate will
not in any manner affect the rights of inheritance of all the legal
heirs of the deceased - Portuguese Civil Code, 1867 as applicable
in the State of Goa, shall govern the rights of succession and
inheritance even in respect of properties of a Goan domicile situated
outside Goa, anywhere in India.
Interpretation of statutes: Principle of - Held: 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 - Its
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.
Allowing the appeal, the Court
HELD: 1.1 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. [Para 14]
[402-E-F]
1.2 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 instant
case is concerned, firstly the President by an Ordinance and later
Parliament by an Act of Parliament decided that certain laws, as
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. Thus, these laws would not have been applicable unless
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JOSE PAULO COUTINHO
v.
MARIA LUIZAVALENTINA PEREIRA & ANR.
(Civil Appeal No. 7378 of 2010)
SEPTEMBER 13, 2019
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ]
Portuguese Civil Code, 1867:
Whether Portuguese Civil Code, a foreign law - Applicability
of principles of private international law, to the Code - Held:
Portuguese law which may have had foreign origin became a part
of the Indian laws - It is an Indian law and no longer a foreign law
- Goa is a territory of India, all domiciles of Goa are citizens of
India - Portuguese Civil Code is applicable only on account of the
Goa, Daman and Diu (Administration) Ordinance, 1962 and the
Goa, Daman and Diu (Administration) Act, 1962 - Thus, the
Portuguese Civil Code is an Indian law and no principles of private
international law are applicable - Goa, Daman and Diu
(Administration) Act, 1962.
Property of a Goan domicile outside the territory of Goa, if
governed by the Code or by Indian Succession Act or by personal
laws, as applicable in the rest of the country - Held: Domicile of
Goa, who starts living in Bombay or in any other part of India,
cannot be said to be Portuguese and he cannot 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 - 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 s. 5 of the Indian Succession Act or the laws of succession
would not be applicable to such Goan domiciles - Indian Succession
Act, 1925.
Grant of probate by the High Court of Bombay at Goa in
respect of the Will executed by the father - Effect of, on the laws of
inheritance - Held: Jurisdiction of a probate court is limited to
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decide whether the Will is genuine or not - Grant of probate will
not in any manner affect the rights of inheritance of all the legal
heirs of the deceased - Portuguese Civil Code, 1867 as applicable
in the State of Goa, shall govern the rights of succession and
inheritance even in respect of properties of a Goan domicile situated
outside Goa, anywhere in India.
Interpretation of statutes: Principle of - Held: 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 - Its
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.
Allowing the appeal, the Court
HELD: 1.1 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. [Para 14]
[402-E-F]
1.2 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 instant
case is concerned, firstly the President by an Ordinance and later
Parliament by an Act of Parliament decided that certain laws, as
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. Thus, these laws would not have been applicable unless
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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. Therefore, it is crystal clear that the
Code is an Indian law and no principles of private international
law are applicable to this case. [Para 17, 18] [406-B-F]
2.1 The Indian Parliament has made the earlier Portuguese
Civil Code applicable in the State of Goa. Article 24 has no
applicability to the facts of the instant case. When a law is adopted
or applied in a new situation, it has to be read in that context.
Article 24 has to be read 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 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, 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, has no applicability.[Para 22]
[407-G; 408-C-E]
2.2 The parties are ad idem that the Code applies. 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. 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 basis of this article is that both spouses are equal owners of
the entire property of the couple - acquired before or after
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marriage. Therefore, the disposition of some part of the property
without the consent of the other spouse can be termed a nullity.
[Para 23-24] [408-E-H; 409-B-C]
2.3 In most of the cases, the legitime would be half. Once it
is concluded that the Civil Code is an Indian law and the domiciles
of Goa, for all intent and purposes, are Indian citizens, it would
not 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. [Para 25] [409-E-F]
2.4 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 it
was to be held 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 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 the
judgment of the Single Judge and the arguments of the
respondents were to be accepted, 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. [Para 26] [409-G-H;
410-A-B]
2.5 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. Though it is held
that this is Indian law, since it is a law of Portuguese origin, the
guidance is to be taken 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
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inheritance is in question have to be calculated and considered
as one big conglomerate unit and then the rules of succession
will apply. [Para 27] [410-C, G]
2.6 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. The Parliament of India, after conquest of Goa, by
adopting the Portuguese Civil Code accepted that the 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.
[Para 28] [410-H; 411-A-C]
2.7 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. [Para 29] [411-D]
2.8 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. 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
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Succession Act or the laws of succession would not be applicable
to such Goan domiciles. [Para 30-31] [412-A-B; D-E]
3.1 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 had notice of the probate case. Assuming that
probate had been granted, as regards 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. 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. The grant of probate by the Bombay
High Court in respect of the Will executed by JMP did not in any
manner affect the rights of inheritance of all the legal heirs of the
deceased. [Para 32-33] [412-F-H; 413-A, E]
3.2 The Portuguese Civil Code, 1867 as applicable in the
State of Goa, shall govern the rights of succession and inheritance
even in respect of properties of a Goan domicile situated outside
Goa, anywhere in India. [Para 34] [413-F]
4. 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. The judgment of the Single Judge of
the High Court is set aside and the order of the Court of Comarca
Judge in Inventory Proceedings is restored. [Para 35] [413-G;
414-A]
A. P. Fernandes v. Annette Blunt Finch and others 2015
(6) Mh.L.J. 717 ; Pema Chibar v. Union of India &
Ors. AIR 1966 SC 442 : [1966] SCR 357 ; Vinodkumar
Shantilal Gosalia v. Gangadhar Narsingdas Agarwal
(1981) 4 SCC 226 : [1982] 1 SCR 392 ; Mohd. Ahmed
Khan v. Shah Bano (1985) 2 SCC 556 : [1985] 3 SCR
844 ; Sarla Mudgal & Ors. v. Union of India & Ors.
(1995) 3 SCC 635 : [1995] 1 Suppl. SCR 250 ; R.S.
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Raghunath v. State of Karnataka & Ors. (1992) 1 SCC
335 : [1991] 1 Suppl. SCR 387 ; Commercial Tax
Officer, Rajasthan v. Binani Cements Ltd. & Ors. (2014)
8 SCC 319 : [2014] 3 SCR 1 ; Atma Ram Properties
Pvt. Ltd. v. The Oriental Insurance Co. Ltd. (2018) 2
SCC 27 : [2017] 12 SCR 1044 ; Justiniano Augusto
De Piedade Barreto & Ors. v. Antonio Vicente Da
Fonseca & Ors. (1979) 3 SCC 47 : [1979] 3 SCR
494 ; Krishna Kumar Birla v. Rajendra Singh Lodha
(2008) 4 SCC 300 : [2008] 5 SCR 640 - referred to.
Comparative Analysis of Civil Law Succession, Villanova
Law Review Vol. 11, Issue 2 - referred to.
Case Law Reference
2015 (6) Mh.L.J. 717
referred to.
Para 9
[1966] SCR 357
referred to.
Para 15
[1982] 1 SCR 392
referred to.
Para 16
[1985] 3 SCR 844
referred to.
Para 20
[1995] 1 Suppl. SCR 250
referred to.
Para 20
[1991] 1 Suppl. SCR 387
referred to.
Para 29
[2014] 3 SCR 1
referred to.
Para 29
[2017] 12 SCR 1044
referred to.
Para 29
[1979] 3 SCR 494
referred to.
Para 30
[2008] 5 SCR 640
referred to.
Para 33
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7378
of 2010.
From the Judgment and Order dated 08.08.2008 of the High Court
of Bombay at Goa, Panaji in Appeal From Order No. 12 of 2000.
Devadatt Kamat, Sr. Adv., Rajesh Inamdar, Aditya Bhat, Javedur
Rahman, Ashwin G. Raj, Rauf Rahim, Advs. for the Appellant.
Yashraj Singh Deora, Ms. Sonal Mashankar, Shyam Agarwal,
M/S. Mitter & Mitter Co., Advs. for the Respondents.
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The Judgment of the Court was delivered by
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. 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 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
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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 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 Clause-2 of Article 1785 and
Article 1787."
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.
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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 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
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
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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 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 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
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and, in fact, the applicable articles were Articles 1737, 1784 and 1961.
According to him, the judgment of 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 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?
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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 its annexation by conquest. Goa became a full-fledged 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) would
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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
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showed what kind of import licences would be recognised must
be held 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 three-Judge 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 well-settled legal position that
when a new territory is acquired in any manner-be it by conquest,
annexation or cession following upon a treaty-the 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
its obligation by disowning such rights. The new state may
recognise the old rights by re-granting 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:
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"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:
"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
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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
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.
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
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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.