TMI Blog2019 (9) TMI 1704X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ. For the Appellant : Devadatt Kamat, Sr. Adv., Rajesh Inamdar, Aditya Bhat, Javedur Rahman, Ashwin G. Raj and Rauf Rahim, Advs. For the Respondent : Yashraj Singh Deora, Sonal Mashankar, Shyam Agarwal, Advs. and Mitter Mitter Co. 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) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code 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. , 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 linea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 recognit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights. It would also not 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 pre-nuptial 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 self-acquired 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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alled 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, Comparative Analysis of Civil Law Succession, Villanova Law Review Vol. 11, Issue 2 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 ... 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 inh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard i.e. Justiniano Augusto De Piedade Barreto and Ors. v. Antonio Vicente Da Fonseca and Ors., (1979) 3 SCC 47 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be. It makes detailed provisions as to how and in what manner an application for grant of probate is to be 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 clear-cut 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 inheritanc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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