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2019 (9) TMI 1704 - SC - Indian LawsSuccession to the property of a Goan situate outside Goa in India - governed by the Portuguese Civil Code, 1867 as applicable in the State of Goa or the Indian succession Act, 1925? Whether the Portuguese Civil Code can be said to be a foreign law and the principles of private international law are applicable? - HELD THAT:- 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. We answer question number one accordingly. 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. 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.? - HELD THAT:- 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. As far as Goa is concerned, there is a specific judgment in this regard i.e. Justiniano Augusto De Piedade Barreto and Ors. v. Antonio Vicente Da Fonseca and Ors., [1979 (3) TMI 208 - SUPREME COURT] 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. 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. What is the effect of the grant of probate by the Bombay High Court in respect of the Will executed by JMP? - HELD THAT:- 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. This Court in Krishna Kumar Birla v. Rajendra Singh Lodha [2008 (3) TMI 741 - SUPREME COURT] held 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. Thus, 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. 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 purpose - Appeal allowed.
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