Portuguese Civil Code applies to Goans even with respect to property outside Goa, Supreme Court

The Supreme Court yesterday ruled that 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..The judgment was delivered by a Bench of Justices Deepak Gupta and Aniruddha Bose in an appeal against a verdict of the Bombay High Court..Facts.One Joaquim Mariano Pereira (JMP) had three daughters viz., Maria Luiza Valentina Pereira (ML), Respondent No.1, Virginia Pereira and 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 May 06, 1957 he bequeathed this property at Bombay to his youngest daughter, Maria Luiza Valentina Pereira, Respondent No.1. He bequeathed Rs. 3,000 each to his other two daughters. His wife expired on October 31, 1960 when he was still alive. JMP died on August 02, 1967. The probate of the Will dated May 06, 1957 was granted by the High Court of Bombay, at Goa on September 12, 1980. Both the other daughters were served notice of the probate proceedings..Goa was liberated from Portuguese rule on December 19, 1961. An ordinance, the Goa, Daman and Diu (Administration) Ordinance was promulgated on March 05, 1962 and thereafter the Goa, Daman and Diu (Administration) Act, 1962 was enacted. Both the Ordinance as well as the Act of 1962 provided that the laws applicable in Goa prior to the appointed date i.e., December 20, 1961 would continue to be in force until amended or repealed by the competent legislature or authority..The main dispute was that whereas the appellant, who is one of the legal heirs of the daughters of JMP, claims that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 Portuguese 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..Inventory proceedings under the Civil Code were initiated for the properties of JMP. On April 27, 1981 his daughter Virginia Pareira was appointed as 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 inventory court by its order dated March 09, 1998 held that the property at Bombay was to be excluded from the list of assets in the inventory proceedings at Goa. 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 then filed this application and the inventory court on October 15, 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 August 08, 2008. The High Court held that in view of the provisions of the Indian Succession Act, 1925 especially Section 5, the Civil Code would not apply in so far as the property situated outside Goa in other parts of India are concerned..This led to the appeal in Supreme Court..Judgment.The Court framed the following questions and answered the same..Whether the Portuguese Civil Code can be said to be a foreign law and the principles of private international law are applicable?.Though 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 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, the Court held..The Supreme Court noted that it had 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.” .Thus, 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 a competent legislature or by other competent authority..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, the Court concluded..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.?.Digressing from the main issue, the Court noted that though 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..However, the State of Goa is an exception to this, the Court stated referring to Goa as a shining example of a State which has a Uniform Civil Code..“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 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.”.Coming back to the subject, the Court said that once it is concluded that that the Civil Code is an Indian law and the domiciles of Goa 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..Succession is governed normally by the personal laws and where there is a uniform civil code, as in Goa, by the Civil Code. The Court went on to note that if all the properties whether within Goa or outside Goa, is not governed by the Civil Code of Goa, the consequences would be disastrous. 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..Elaborating further on the consequences, the Court said:.“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.”.The Parliament of India, after the 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. 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..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, the Supreme Court made it clear..In this regard, the Court also adverted to the judgment in Justiniano Augusto De Piedade Barreto & Ors. vs. Antonio Vicente Da Fonseca & Ors to hold that 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. Therefore, 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.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..Thus, the Court concluded 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..In view of the above conclusions, the Court set aside the judgment of the Bombay High Court and ruled that the property of late JMP at Bombay is to be included in the inventory of properties in the inventory proceedings in Goa..[Read Judgment].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.