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Jose Paulo Coutinho vs Maria Luiza Valentina Pereira . on 13 September, 2019

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)

JUDGMENT

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)
Signature Not Verified

Digitally signed by
CHARANJEET KAUR

Virginia Pereira and (3) Maria Augusta Antoneita Pereira
Date: 2019.09.13
16:49:53 IST
Reason:

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to be in force until amended or repealed by the competent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force therein until amended or repealed by a competent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 (12 th 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

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