JOSE PAULO COUTINHO versus MARIA LUIZAVALENTINA PEREIRA & ANR. on 13 September 2019

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SUPREME COURT REPORTS

[2019] 12 S.C.R.

JOSE PAULO COUTINHO

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v.

MARIA LUIZAVALENTINA PEREIRA & ANR.

(Civil Appeal No. 7378 of 2010)

BSEPTEMBER 13, 2019

[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ]

Portuguese Civil Code, 1867:

Whether Portuguese Civil Code, a foreign law – ApplicabilityCof principles of private international law, to the Code – Held:Portuguese law which may have had foreign origin became a partof 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 ofIndia – Portuguese Civil Code is applicable only on account of theGoa, Daman and Diu (Administration) Ordinance, 1962 and theDGoa, Daman and Diu (Administration) Act, 1962 – Thus, thePortuguese Civil Code is an Indian law and no principles of privateinternational law are applicable – Goa, Daman and Diu(Administration) Act, 1962.

Property of a Goan domicile outside the territory of Goa, ifEgoverned by the Code or by Indian Succession Act or by personallaws, as applicable in the rest of the country – Held: Domicile ofGoa, 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 livingin a foreign country – This person is only a Goan domicile livingFoutside Goa in India, which is his country – Portuguese Civil Codebeing a special Act, applicable only to the domiciles of Goa, will beapplicable to the Goan domiciles in respect to all the propertieswherever they be situated in India whether within Goa or outsideGoa and s. 5 of the Indian Succession Act or the laws of successionwould not be applicable to such Goan domiciles – Indian SuccessionGAct, 1925.

Grant of probate by the High Court of Bombay at Goa inrespect of the Will executed by the father – Effect of, on the laws ofinheritance – Held: Jurisdiction of a probate court is limited to H

decide whether the Will is genuine or not – Grant of probate willnot in any manner affect the rights of inheritance of all the legalheirs of the deceased – Portuguese Civil Code, 1867 as applicablein the State of Goa, shall govern the rights of succession andinheritance even in respect of properties of a Goan domicile situatedoutside Goa, anywhere in India.

Interpretation of statutes: Principle of – Held: When there isa conflict between the general law and the special law then thespecial law shall prevail – This principle will apply with greaterforce to special law which is also additionally a local law – Itsbased on the latin maxim generalia specialibus non derogant i.e.general law yields to special law should they operate in the samefield on the same subject.

Allowing the appeal, the Court

HELD: 1.1 The Civil Code may be a Code of Portugueseorigin but after conquest and annexation of Goa, Daman and Diu,this Code became applicable to the domiciles of Goa only by virtueof the Ordinance and thereafter, by the Act. Therefore, the CivilCode has been enforced in Goa, Daman and Diu by an Act of theIndian 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 atliberty to adopt the old laws wholly or in part. It may totally rejectthe old laws and replace them with laws which apply in the otherterritories of the new sovereign. It is for the new sovereign todecide what action it would take with regard to the application oflaws and from which date which law is to apply. As far as the instantcase is concerned, firstly the President by an Ordinance and laterParliament by an Act of Parliament decided that certain laws, asapplicable to the territories of Goa, Daman and Diu prior to itsconquest, which may be referred to as the erstwhile Portugueselaws, would continue in the territories. It was, however, madeclear that these laws would continue only until amended orrepealed by competent legislature or by other competentauthority. Thus, these laws would not have been applicable unless A

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Arecognised by the Indian Government and the Portuguese CivilCode continued to apply in Goa only because of an Act of theParliament of India. Therefore, the Portuguese law which mayhave had foreign origin became a part of the Indian laws, and, insum 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 ofBIndia; the Portuguese Civil Code is applicable only on account ofthe Ordinance and the Act. Therefore, it is crystal clear that theCode is an Indian law and no principles of private internationallaw are applicable to this case. [Para 17, 18] [406-B-F]

2.1 The Indian Parliament has made the earlier PortugueseCCivil Code applicable in the State of Goa. Article 24 has noapplicability to the facts of the instant case. When a law is adoptedor 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 theterritories of Goa by conquest and their becoming an inherentDpart of India. There are no Goan citizens; there can be domicilesof Goa but all are citizens of India. As Indian citizens, under Article19 of the Constitution, they are free to move to any part of thecountry, reside there and buy property subject to the local lawsand limitations. Therefore, a domicile of Goa, who starts living inBombay or in any other part of India, cannot be said to beEPortuguese by any stretch of imagination and he cannot be saidto be living in a foreign country. Indian citizens living in Indiacannot, be said to be living in a foreign country. This person isonly a Goan domicile living outside Goa in India, which is hiscountry. Therefore, Article 24, has no applicability.[Para 22]F[407-G; 408-C-E]

2.2 The parties are ad idem that the Code applies. A barereading of Article 1737 clearly indicates that the inheritance of adeceased comprises of all the assets, rights and liabilities of thedeceased. The only exclusion, is totally personal assets or thoseGexcluded by the disposition of the said deceased or by law. Article1766 provides that a married person shall not on the penalty ofnullity dispose of certain and specific properties of the coupleexcept if the said properties have been allotted to the said person.The basis of this article is that both spouses are equal owners ofthe entire property of the couple - acquired before or afterH

marriage. Therefore, the disposition of some part of the propertywithout 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 itis concluded that the Civil Code is an Indian law and the domicilesof Goa, for all intent and purposes, are Indian citizens, it wouldnot be prudent to hold that the Civil Code, in matters ofsuccession, would apply only in respect to properties situatedwithin the territories of Goa. [Para 25] [409-E-F]

2.4 Succession is governed normally by the personal lawsand where there is a uniform civil code, as in Goa, by the CivilCode. Once Article 24 is not to be taken into consideration thenit is but obvious that all the properties whether within Goa oroutside Goa, must be governed by the Civil Code of Goa. If itwas to be held otherwise, the consequences could be disastrous,to say the least. There would be no certainty of succession. Itwould be virtually impossible to determine the legitime which isan inherent part of the law of succession. The rights of the spousesto have 50% of the property could easily be defeated by buyingproperties outside the State of Goa. In the case of a Hindu Goandomicile it would lead to further complications because if thejudgment of the Single Judge and the arguments of therespondents were to be accepted, for the properties in Goa, theCivil Code would apply but for the properties outside the territoryof Goa, the Hindu Succession Act will apply. Similarly, for Muslimswithin the State of Goa, Civil Code would apply and outside Goa,the Muslim Personal Law (Shariat) Application Act, 1937 wouldapply. This would lead to many uncalled for disputes and totaluncertainty with regard to succession. [Para 26] [409-G-H;410-A-B]

2.5 There must be unity in succession. The Portugueselaw is based on the Roman law concept of hereditas i.e. inheritanceto the entire legal position of a deceased man. Though it is heldthat this is Indian law, since it is a law of Portuguese origin, theguidance is to be taken from the way in which the law has beenapplied to come to the conclusion to see what is the intention ofthe law. Therefore, all the properties of the person whose AB

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Ainheritance is in question have to be calculated and consideredas one big conglomerate unit and then the rules of successionwill 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)BApplication Act, 1937, etc. and the Portuguese Civil Code withregard to the laws of inheritance but this conflict has to beresolved. The Parliament of India, after conquest of Goa, byadopting the Portuguese Civil Code accepted that the Goandomiciles were to be governed by that law in matters coveredunder the Code and specifically included in the laws which wereCmade applicable. The Indian Parliament did not make applicableall Portuguese laws but the laws which were applied would applywith 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 isDan exception carved out of the general laws of succession namelyIndian Succession Act, Hindu Succession Act, 1956, MuslimPersonal 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 interpretationEthat when there is a conflict between the general law and thespecial law then the special law shall prevail. This principle willapply with greater force to special law which is also additionally alocal law. This judicial principle is based on the latin maximgeneralia specialibus non derogant, i.e., general law yields tospecial law should they operate in the same field on the sameFsubject. [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 becauseit deals with laws of succession for the domiciles of Goa only. ThePortuguese Civil Code being a special Act, applicable only to theGdomiciles of Goa, will be applicable to the Goan domiciles inrespect to all the properties wherever they be situated in Indiawhether within Goa or outside Goa and Section 5 of the Indian Succession Act or the laws of succession would not be applicableto such Goan domiciles. [Para 30-31] [412-A-B; D-E]

3.1 The order granting probate has not been produced byany side though it is admitted by all sides that probate was grantedand the appellants had notice of the probate case. Assuming thatprobate had been granted, as regards the effect of the grant ofprobate on the laws of inheritance, grant of probate has nothingto do with inheritance. The jurisdiction of a probate court is limitedto decide whether the Will is genuine or not. The Will may begenuine but the grant of probate does not mean that the Will isvalid even if it violates the laws of inheritance. The legitime isthe right of the heirs by birth. When both the spouses are alive,they own half of the property. Mere grant of probate will not meanthat the husband can Will away more than half of the propertyeven if that be in his name. The grant of probate by the BombayHigh Court in respect of the Will executed by JMP did not in anymanner affect the rights of inheritance of all the legal heirs of thedeceased. [Para 32-33] [412-F-H; 413-A, E]

3.2 The Portuguese Civil Code, 1867 as applicable in theState of Goa, shall govern the rights of succession and inheritanceeven in respect of properties of a Goan domicile situated outsideGoa, anywhere in India. [Para 34] [413-F]

4. The property of late JMP at Bombay is to be included inthe inventory of properties in the inventory proceedings in Goafor all intent and purposes. The judgment of the Single Judge ofthe High Court is set aside and the order of the Court of ComarcaJudge in Inventory Proceedings is restored. [Para 35] [413-G;414-A]

A. P. Fernandes v. Annette BluntFinch and others 2015(6) Mh.L.J. 717 ;Pema Chibar v. Union of India &Ors. AIR 1966 SC 442 : [1966] SCR 357 ;VinodkumarShantilal Gosalia v. Gangadhar Narsingdas Agarwal(1981) 4 SCC 226 : [1982] 1 SCR 392 ; Mohd. AhmedKhan 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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ARaghunath v. State of Karnataka & Ors. (1992) 1 SCC335 : [1991] 1 Suppl. SCR 387 ; Commercial TaxOfficer, Rajasthan v. Binani Cements Ltd. & Ors. (2014)8 SCC 319 : [2014] 3 SCR 1 ; Atma Ram PropertiesPvt. Ltd. v. The Oriental Insurance Co. Ltd. (2018) 2SCC 27 : [2017] 12 SCR 1044 ; Justiniano AugustoBDe Piedade Barreto & Ors. v. Antonio Vicente DaFonseca & Ors. (1979) 3 SCC 47 : [1979] 3 SCR494 ; Krishna Kumar Birla v. Rajendra Singh Lodha(2008) 4 SCC 300 : [2008] 5 SCR 640 - referred to.

Comparative Analysis of Civil Law Succession, VillanovaCLaw Review Vol. 11, Issue 2 - referred to.

From the Judgment and Order dated 08.08.2008 of the High Courtof Bombay at Goa, Panaji in Appeal From Order No. 12 of 2000.

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Devadatt Kamat, Sr. Adv., Rajesh Inamdar, Aditya Bhat, JavedurRahman, 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 outsideGoa in India will be governed by the Portuguese Civil Code, 1867 asapplicable in the State of Goa or the Indian succession Act, 1925” is thequestion 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) VirginiaPereira and (3) Maria Augusta Antoneita Pereira Fernandes. He alsohad a wife named Claudina Lacerda Pereira. He lived in Bombay andpurchased a property in Bombay in the year 1955. On 06.05.1957 hebequeathed this property at Bombay to his youngest daughter, MariaLuiza Valentina Pereira, Respondent No.1. He bequeathed Rs. 3000/-each to his other two daughters. His wife expired on 31.10.1960 whenhe was still alive. JMP died on 02.08.1967. The probate of the Willdated 06.05.1957 was granted by the High Court of Bombay, at Goa on12.09.1980. Both the other daughters were served notice of the probateproceedings.

3. Goa was liberated from Portuguese rule on 19.12.1961. Anordinance being The Goa, Daman and Diu (Administration) Ordinancewas promulgated on 05.03.1962 and thereafter the Goa, Daman andDiu (Administration) Act, 1962 was enacted, hereinafter referred to as‘the Act of 1962’. Both the Ordinance as well as the Act of 1962provided 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 bythe competent legislature or authority. Section 5 of the Act of 1962 whichis relevant for our purpose reads as follows:- “5. Continuance of existing laws and their adaptation. - (1) Alllaws in force immediately before the appointed day in Goa, Damanand Diu or any part thereof shall continue to be in force thereinuntil amended or repealed by a competent Legislature or othercompetent authority.

(2) For the purpose of facilitating the application of any such lawin relation to the administration of Goa, Daman and Diu as a Unionterritory and for the purpose of bringing the provisions of anysuch law into accord with the provisions of the Constitution, the B

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ACentral Government may within two years from the appointedday, by order, may (sic make) such adaptations and modifications,whether by way of repeal or amendment, as may be necessary orexpedient and thereupon, every such law shall have effect subjectto the adaptations and modifications so made.”

B4. It is not disputed before us that the Portuguese Civil Code,1867 (hereinafter referred to as ‘the Civil Code’) as applicable in theState of Goa before its liberation in 1962 would apply. The Civil Code isin two parts – one part deals with all substantial civil laws including lawsof succession and the other part deals with procedure. As far as thepresent case is concerned, the parties are ad idem that in so far as theCsuccession to the properties in Goa is concerned, they are governed bythe Civil Code. The main dispute is that whereas the appellant, who isone of the legal heirs of the daughters of JMP, claims that even theproperty of JMP in Bombay is to be dealt with under the Civil Code, thecase of the respondent i.e., the daughter who was bequeathed theDproperty in Bombay, is that as far as the immovable property situateoutside Goa in any other part of India is concerned, it would be theIndian succession Act, 1925 which would apply.

5. It would be apposite to digress a little and refer to certainprovisions of the Civil Code in relation to succession. Succession isEgoverned under Title II, Chapter I of the Civil Code. Under the CivilCode[1], a person cannot dispose of all his property by way of Will. Thereare two portions of the property – one which can be disposed by Will,Gift, etc. and the other which is the indisposable portion in terms ofArticle 1784 of the Civil Code which reads as follows:- F“Legitime means the portion of the properties that the testatorcannot dispose of, because it has been set apart by law for thelineal descendants or ascendants.

Sole paragraph: This portion consists of half of the properties ofthe testator, save as provided in Clause-2 of Article 1785 andArticle 1787.”G

1 In this judgment, the articles of Portuguese Civil Code have been quoted from thetranslation of the Code made by Manohar Sinai Usgaocar, Senior Advocate, Civil Codein 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 isslightly different but the meaning is the same and that has no impact on the judgment inHhand.

6. Normally, if a person has children or parents, he can only disposeof half of the property by will or gift and the remaining property has tobe allotted to his heirs whether ascendants or descendants in the shareslaid down in the Civil Code. Where a person has no children or wherehe leaves behind illegitimate children or the deceased leaves behind onlyascendant heirs who are not the parents then the indisposable portion isless than half. The Code provides that the estate of every person can bedivided into two parts – one which he can dispose of by testamentarydisposition and the other which he cannot dispose of. The second partwhich he cannot dispose of has to be inherited by the heirs in the sharesas laid down in the Civil Code and this part which cannot be disposed, iscalled legitime. This legitime is destined for the heirs in the directascending or descending line.

7. Another interesting aspect of the Civil Code is that after thedeath of a person, inventory proceedings are started wherein the entireproperties (both movable and immovable) and liabilities of the deceasedare inventorised. In these proceedings normally one of the eldest membersof the family is appointed as Cabeca de Casal, i.e. the administrator.The administrator is required to prepare an inventory of all the propertiesof the deceased. Once the properties of the deceased are inventorisedand evaluated, these have to be shared in accordance with the shareslaid down in the Civil Code. In case the deceased had made sometestamentary bequests, then those bequests are to be adjusted againstthat portion of the estate which was not the legitime. As pointed above,only half of the total property could be bequeathed and any bequest inexcess of half would not be a valid bequest.

8. As far as the present case is concerned, inventory proceedingsunder the Civil Code were initiated for the properties of JMP. On27.04.1981 his daughter Virginia Pareira was appointed as Cabeca DeCasal (administrator). She prepared the inventory of the properties andin these proceedings the house in Bombay which had been bequeathedin favour of the respondent no.1 was listed at Sl.No.8. The respondentobjected to the inventory on the ground that the property situated atBombay was not governed by the inventory proceedings. Thereafter,Virginia Pareira died. Then respondent no.1 was appointed asadministrator. She filed a fresh list of properties and excluded the propertyat Bombay. The appellant, who is one of the legal representatives ofVirginia Pareira filed objections to the removal of the property at Bombay A

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Afrom the inventory and sought the inclusion and valuation of the saidproperty to work out what was the disposable portion and what was thelegitime. The inventory court vide order dated 09.03.1998 held that theproperty at Bombay was to be excluded from the list of assets in theinventory proceedings at Goa. Thereafter, the appellant filed an appealin the High Court of Bombay, Goa Bench. However, he withdrew theBappeal with liberty to file a fresh application before the inventory courtfor inclusion of these assets. He filed this application and the inventorycourt on 15.10.1999 allowed the application and held that the property atBombay should be included in the list of assets. Respondent no.1 andher husband (respondent no.2) challenged the said order of the inventoryCcourt before the High Court of Bombay, Goa Bench. This appeal wasallowed on 08.08.2008. The High Court vide the impugned judgmentheld that in view of the provisions of the Indian Succession Act, 1925especially Section 5 thereof, the Civil Code would not apply in so far asthe property situate outside Goa in other parts of India are concerned.Hence, this appeal by the appellant.D

9. At this stage, it would be pertinent to mention that in themeantime, a similar question was referred to a Division Bench of theBombay High Court, Goa Bench. The Division Bench in the case ofA.P. Fernandes vs. Annette BluntFinch and others[2]came to theconclusion that the judgment of the learned Single Judge which isEimpugned in the present appeal did not lay down the correct law and thatthe Civil Code would apply even to the property situate outside Goa.

10. Shri Devadatt Kamat, learned senior counsel appearing onbehalf of the appellant, submits that though we may be sitting as Judgesof the Supreme Court of India, we will have to apply the PortugueseFLaw as applicable to the domiciles of Goa. He further submitted thatsince Portuguese law is applicable, the principles of private internationallaw would apply. He invoked the doctrine of renvoi to urge that sincethe citizens of Goa were governed by a foreign law, this Court wouldapply the foreign law to the citizens of Goa. He further submitted thatGunder the Portuguese law there is principle of unity of succession of theproperty of a deceased Portuguese citizen whether situated within oroutside the country, which are to be included for the purpose of inventoryproceedings. 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 the learned Single Judge does not laydown the correct law and the judgment of the Division Bench should beapproved. He also submitted that the grant of probate of the Will doesnot ipso facto lead to the conclusion that the Will is valid. Lastly, it iscontended that Section 5 of the Indian Succession Act has no applicationto the present case.

11. On the other hand, Shri Yashraj Singh Deora, learned counselfor the respondent nos. 1 and 2 urges that the Portuguese Civil Codewould apply only in the territory of Goa and would have no extraterritorialapplication over immovable properties situated outside the State of Goa.He also submitted that the property at Bombay would be governed bythe provisions of the Indian Succession Act and in terms of Section 5thereof. According to him, Article 24 of the Civil Code relates only toproperties ‘situated in the kingdom’. It is lastly submitted that the commonlaw principle of lex rei situs would apply in the case of immovableproperties. Therefore, the law in force at the place where immovableproperty is situated should apply. He further submits that the Civil Codewould 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 petitionerhad participated, is a final adjudication determining the rights of the parties.

12. According to us, the following issues arise for determination:

12. According to us, the following issues arise for determination:

I.Whether the Portuguese Civil Code can be said to be a foreignlaw and the principles of private international law areapplicable?

II.Whether the property of a Goan domicile outside the territoryof Goa would be governed by the Code or by IndianSuccession Act or by personal laws, as applicable in the restof the country e.g. Hindu Succession Act, 1956, MuslimPersonal Law (Shariat) Application Act, 1937, etc.?

III.What is the effect of the grant of probate by the BombayHigh Court in respect of the Will executed by JMP?

I. Whether the Portuguese Civil Code can be said to be aforeign law and the principles of private international law areapplicable?

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A13. The territories forming part of Goa, Daman and Diu werepart of the kingdom of Portugal. They were annexed by the Governmentof India by conquest on 20.12.1961 and became a part of India by virtueof Article 1(3)(c) of the Constitution. After acquisition by conquest,these territories became part and parcel of India, that is Bharat. Aspointed out earlier, for making provision for administration of the saidBterritories, the President of India, exercising powers vested in him underArticle 123(1) of the Constitution on 05.03.1962 promulgated anOrdinance called the Goa, Daman and Diu (Administration) Ordinance,1962. This Ordinance was replaced by an Act of Indian Parliamentknown as The Goa, Daman and Diu (Administration) Act, 1962, whichCcame into effect from 05.03.1962. On the same day, the Constitutionwas amended by the Constitution (12[th] Amendment) Act, 1962 wherebyGoa, Daman and Diu were added as Entry 5 in Part II of the FirstSchedule 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.DThus, it is more than apparent that Goa, Daman and Diu became anintegral part of India as a Union Territory of India with effect from thedate of its annexation by conquest. Goa became a full-fledged State in1987.

14. The Civil Code may be a Code of Portuguese origin but afterEconquest and annexation of Goa, Daman and Diu, this Code becameapplicable to the domiciles of Goa only by virtue of the Ordinance andthereafter, by the Act. Therefore, the Civil Code has been enforced inGoa, Daman and Diu by an Act of the Indian Parliament and thus,becomes an Indian law. This issue is no longer res integra.F

15. A Constitution Bench of this Court in Pema Chibarvs. Unionof India & Ors.[3], was dealing with a case wherein the petitioner hadobtained licences for import of goods of the value of more than onemillion pounds. Though the orders for import of the goods to Goa wereplaced before 20.12.1961, the goods did not reach Goa by the said date.GThereafter, the petitioner applied for renewal of the licences and claimedthat the Indian Government was bound by the licences granted by theearlier rulers. This Court held that once a property is taken over byconquest, the new sovereign (namely, the Government of India) would 3 AIR 1966 SC 442H

not be bound by the acts of the old sovereign except where it recognisedsuch rights. Reliance was placed by the petitioner on the Ordinance andthe Act, referred to above. Rejecting the contention, this Court held asfollows:

“8. But this is not all. The Ordinance and the Act of 1962 onwhich the petitioner relies came into force from March 5, 1962.It is true that they provided for the continuance of old laws butthat could only be from the date from which they came into force,i.e., from March 5, 1962. There was a period between December20, 1961 and March 5, 1962 during which it cannot be said thatthe old laws necessarily continued so far as the rights and liabilitiesbetween the new subjects and the new sovereign were concerned.So far as such rights and liabilities are concerned, (we say nothinghere as to the rights and liabilities between subjects and subjectsunder the old laws), the old laws were apparently not in forceduring this interregnum. That is why we find in S. 7 (1) of theOrdinance, a provision to the effect that all things done and allaction taken (including any acts of executive authority, proceedings,decrees and sentences) in or with respect to Goa, Daman andDiu on or after the appointed day and before the commencementof this Ordinance, by the Administrator or any other officer ofGovernment, whether civil or military or by any other person actingunder the orders of the Administrator or such officer, which havebeen done or taken in good faith and in a reasonable belief thatthey were necessary for the peace and good Government of Goa,Daman and Diu, shall be as valid and operative as if they hadbeen done or taken in accordance with law. Similarly, we have aprovision in S. 9(1) of the Act, which is in exactly the same terms.These provisions in our opinion show that as between the subjectsand the new sovereign, the old laws did not continue during thisinterregnum and that is why things done and action taken by variousauthorities during this period were validated as if they had beendone or taken in accordance with law. A doubt was raised as tothe power of the Military Governor to issue a proclamation likethe one he did on December 30, 1961, to which we have alreadyreferred. That doubt in our opinion is cleared by these provisionswhich make all such orders as if they had been made in accordancewith law. The proclamation of December 30, 1961 which clearly A

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Ashowed what kind of import licences would be recognised mustbe held to be in accordance with law and that means that noimports were recognised except those covered by theproclamation.”

We are aware that the Court did not say anything with regard toBthe rights and liabilities between subjects and subjects under the oldlaws and kept that question open. We shall deal with this aspect later.

16. A three-Judge Bench of this Court in Vinodkumar ShantilalGosalia vs. Gangadhar Narsingdas Agarwal[4]was dealing with thequestion as to whether the respondent no.1 before it had acquired theCright to obtain a mining lease from the Portuguese Government, and, ifso, whether after the annexation of Goa, the Government of Indiarecognised that right and, therefore, was bound to grant a mining leaseto respondent no. 1 in terms of the application made by him to theGovernment of Portugal. The Court made the following pertinentobservations:D

“17. …it is necessary to reiterate a well-settled legal position thatwhen 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 conqueredterritory had against their sovereign or by the obligations of theEold sovereign towards his subjects. The rights of the residents ofa territory against their state or sovereign come to an end with theconquest, annexation or cession of that territory and do not passon to the new environment. The inhabitants of the acquiredterritory bring with them no rights which they can enforce againstFthe new state of which they become inhabitants. The new stateis not required, by any positive assertion or declaration, to repudiateits obligation by disowning such rights. The new state mayrecognise the old rights by re-granting them which, in the majorityof cases, would be a matter of contract or of execution action; or,alternatively, the recognition of old rights may be made by anGappropriate statutory provision whereby rights which were in forceimmediately before an appointed date are saved...”

Analysing the judgment of the Constitution Bench in Pema Chibarcase (supra), it was held as follows:

JOSE PAULO COUTINHO v. MARIA LUIZAVALENTINAPEREIRA & ANR. [DEEPAK GUPTA, J.]

“28. The decision in Pema Chibar (supra) is an authority for fourdistinct and important propositions: (1) The fact that laws whichwere in force in the conquered territory are continued by the newGovernment after the conquest is not by itself enough to showthat the new sovereign has recognised the rights under the oldlaws; (2) The rights which arose out of the old laws prior to theconquest or annexation can be enforced against the new sovereignonly if he has chosen to recognise those rights; (3) Neither Section5 of the Administration Act nor Section 4(2) of the Regulationamounts to recognition by the new sovereign of old rights whicharose prior to December 20, 1961 under the laws which were inforce in the conquered territory, the only rights protected underSection 4(2) aforesaid being those which accrued subsequent tothe date of enforcement of the Administration Act, namely, March5, 1962; and (4) The period between December 20, 1961 whenthe territories comprised in Goa, Daman and Diu were annexedby the Government of India, and March 5, 1962 when theAdministration Act came into force, was a period of interregnum...”

Thereafter, the Court finally held that in cases of acquisition ofterritory by conquest, the rights which had accrued under the old lawsdo not survive and cannot be enforced against the new Governmentunless it chooses to recognise that right. The relevant portion of thejudgment reads as follows:

“29. The true position then is that in cases of acquisition of aterritory by conquest, rights which had accrued under the old lawsdo not survive and cannot be enforced against the new Governmentunless it chooses to recognise those rights. In order to recognisethe old rights, it is not necessary for the new Government tocontinue the old laws under which those rights had accruedbecause, old rights can be recognised without continuing the oldlaws as, for example, by contract or executive action. On the onehand, old rights can be recognised by the new Government withoutcontinuing the old laws; on the other, the mere continuance of oldlaws does not imply the recognition of old rights which had accruedunder those laws. Something more than the continuance of oldlaws is necessary in order to support the claim that old rights havebeen recognised by the new Government. That ‘something more’can be found in a statutory provision whereby rights which had A

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Aalready accrued under the old laws are saved. In so far ascontinuance of old laws is concerned, as a general rule, theycontinue in operation after the conquest, which means that thenew Government is at liberty not to adopt them at all or to adoptthem without a break in their continuity or else to adopt themfrom a date subsequent to the date of conquest.”B

17. It is important to note that this Court held that in so far as thecontinuance of old laws is concerned, the new sovereign is not bound tofollow 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 whichapply in the other territories of the new sovereign. It is for the newCsovereign to decide what action it would take with regard to theapplication of laws and from which date which law is to apply. As far asthe present case is concerned, firstly the President by an Ordinance andlater Parliament by an Act of Parliament decided that certain laws, asapplicable to the territories of Goa, Daman and Diu prior to its conquest,Dwhich may be referred to as the erstwhile Portuguese laws, wouldcontinue in the territories. It was, however, made clear that these lawswould continue only until amended or repealed by competent legislatureor by other competent authority.

18. We are clearly of the view that these laws would not haveEbeen applicable unless recognised by the Indian Government and thePortuguese Civil Code continued to apply in Goa only because of an Actof the Parliament of India. Therefore, the Portuguese law which mayhave had foreign origin became a part of the Indian laws, and, in sumand substance, is an Indian law. It is no longer a foreign law. Goa is aterritory of India; all domiciles of Goa are citizens of India; the PortugueseFCivil Code is applicable only on account of the Ordinance and the Actreferred to above. Therefore, it is crystal clear that the Code is anIndian law and no principles of private international law are applicable tothis case. We answer question number one accordingly.

19. Once we come to this conclusion, the answer to the secondGquestion becomes very simple.

II. Whether the property of a Goan domicile outside theterritory of Goa would be governed by the Code or by IndianSuccession Act or by personal laws, as applicable in the rest ofthe country e.g. Hindu Succession Act, 1956, Muslim PersonalHLaw (Shariat) Application Act, 1937, etc.?

20. It is interesting to note that whereas the founders of theConstitution in Article 44 in Part IV dealing with the Directive Principlesof State Policy had hoped and expected that the State shall endeavour tosecure for the citizens a Uniform Civil Code throughout the territories ofIndia, till date no action has been taken in this regard. Though Hindulaws were codified in the year 1956, there has been no attempt to framea Uniform Civil Code applicable to all citizens of the country despiteexhortations of this Court in the case of Mohd. Ahmed Khan vs. ShahBano[5] and Sarla Mudgal & Ors. vs. Union of India & Ors.[6]

21. However, Goa is a shining example of an Indian State whichhas a uniform civil code applicable to all, regardless of religion exceptwhile protecting certain limited rights. It would also not be out of placeto mention that with effect from 22.12.2016 certain portions of thePortuguese Civil Code have been repealed and replaced by the GoaSuccession, Special Notaries and Inventory Proceedings Act, 2012 which,by and large, is in line with the Portuguese Civil Code. The salientfeatures with regard to family properties are that a married couple jointlyholds the ownership of all the assets owned before marriage or acquiredafter marriage by each spouse. Therefore, in case of divorce, eachspouse is entitled to half share of the assets. The law, however, permitspre-nuptial agreements which may have a different system of divisionof assets. Another important aspect, as pointed out earlier, is that atleast 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 theself-acquired properties. Muslim men whose marriages are registeredin Goa cannot practice polygamy. Further, even for followers of Islamthere is no provision for verbal divorce.

22. It is in this context that we shall have to decide whether theproperty of late JMP situated in Bombay i.e. outside the territory of Goawould be governed by the Code or by the Indian Succession Act. Aspointed out earlier, this is not a conflict of international law. The IndianParliament has made the earlier Portuguese Civil Code applicable in theState of Goa. It is in this light that we shall now read Article 24 on whichgreat reliance has been placed by the learned Single Judge in the impugnedjudgment. This Article reads as follows:

5 (1985) 2 SCC 556

6 (1995) 3 SCC 635

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A “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, inrespect of the acts which will produce effects therein. However,the external form of the acts shall be governed by the law of thecountry, where they were celebrated, except in cases where thereBis provision to the contrary.”

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In our view, this article has no applicability to the facts of thepresent case. When a law is adopted or applied in a new situation, it hasto be read in that context. We have to read Article 24 in context of theannexation of the territories of Goa by conquest and their becoming anCinherent part of India. There are no Goan citizens; there can be domicilesof Goa but all are citizens of India. As Indian citizens, under Article 19of 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 anyDother part of India, cannot be said to be Portuguese by any stretch ofimagination and he cannot be said to be living in a foreign country. Indiancitizens living in India cannot, by any stretch of imagination, be said to beliving in a foreign country. This person is only a Goan domicile livingoutside Goa in India, which is his country. Therefore, Article 24, in ouropinion, has no applicability.E

23. This brings us to the issue as to what will be the law whichwould be applicable. The parties are ad idem that the Code applies.We shall now refer to certain provisions of the Code. Article 1737 ofthe Code reads as follows:

F “The inheritance comprises of all the properties, rights andobligations of the deceased, which are not merely personal orexcluded by disposition of the said deceased, or by the law.”

A bare reading of Article 1737 clearly indicates that the inheritanceof a deceased comprises of all the assets, rights and liabilities of theGdeceased. The only exclusion, is totally personal assets or those excludedby the disposition of the said deceased or by law.

24. Article 1766 provides that a married person shall not on thepenalty of nullity dispose of certain and specific properties of the coupleexcept if the said properties have been allotted to the said person. Thearticle reads as follows:H

“Those married as per the custom of the country shall not, underpenalty of nullity, dispose of certain and specific properties of thecouple, except if the said properties have been allotted to them inpartition, or are not included in the communion, or if the dispositionhas been made by one of the spouses in favour of the other, or ifthe other spouse has given consent by authentic form.”

The basis of this article is that both spouses are equal owners ofthe entire property of the couple – acquired before or after marriage.Therefore, the disposition of some part of the property without the consentof the other spouse can be termed a nullity. We are referring to thisArticle only to highlight the fact that in case the Civil Code is to applythis would also be a factor to be taken into consideration because can itbe said that this article will only apply to the properties within the territoryof 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 ofthe portion which the law permits them to dispose of.”

A domicile under his personal law is obliged to reserve a legitimewhich 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 bytaking into consideration only the immovable properties in Goa or bytaking all the properties of the deceased into consideration? Once wehave come to the conclusion that the Civil Code is an Indian law and thedomiciles of Goa, for all intent and purposes, are Indian citizens, would itbe prudent to hold that the Civil Code, in matters of succession, wouldapply 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 andwhere there is a uniform civil code, as in Goa, by the Civil Code. OnceArticle 24 is not to be taken into consideration then it is but obvious thatall the properties whether within Goa or outside Goa, must be governedby the Civil Code of Goa. If we were to hold otherwise, theconsequences could be disastrous, to say the least. There would be nocertainty of succession. It would be virtually impossible to determinethe legitime which is an inherent part of the law of succession. Therights of the spouses to have 50% of the property could easily be defeated A

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Aby buying properties outside the State of Goa. In the case of a HinduGoan domicile it would lead to further complications because if we wereto accept the judgment of the learned Single Judge and the arguments ofthe respondents, for the properties in Goa, the Civil Code would applybut for the properties outside the territory of Goa, the Hindu SuccessionAct will apply. Similarly, for Muslims within the State of Goa, Civil CodeBwould apply and outside Goa, the Muslim Personal Law (Shariat)Application Act, 1937 would apply. This would lead to many uncalledfor disputes and total uncertainty with regard to succession.

27. There must be unity in succession. The Portuguese law isbased on the Roman law concept of hereditas i.e. inheritance to theCentire legal position of a deceased man. This concept of universalsuccession is described in the Comparative Analysis of Civil LawSuccession,[7] as under:

“18. In Comparative Analysis of Civil Law Succession, VillanovaLaw Review Vol 11 Issue 2, the concept of ‘universal succession’Dand ‘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 (decujus), known collectively as the hereditas under Roman law.The succession to the whole of the estate could be by one heirE(heres) or several (heredes), they taking jointly regardless ofwhether the succession was testate or intestate. The estate(hereditas), which passed in Roman succession was the sumof all the rights and duties of the deceased person (persona)except for his political, social and family rights which were notconsidered inheritable. Transfer of title to the heirs was deemedFto occur simultaneously with the individual’s death and was acomplete transfer of title at that time.”

Though we have held that this is Indian law, since it is a law ofPortuguese origin, we may have to take guidance from the way in whichGthe law has been applied to come to the conclusion to see what is theintention of the law. Therefore, all the properties of the person whoseinheritance is in question have to be calculated and considered as onebig conglomerate unit and then the rules of succession will apply.28. There is a conflict between the Indian Succession Act, theHindu Succession Act, the Muslim Personal Law (Shariat) ApplicationH

Act, 1937, etc. and the Portuguese Civil Code with regard to the laws ofinheritance but this conflict has to be resolved. In our view, the Parliamentof India, after conquest of Goa, by adopting the Portuguese Civil Codeaccepted that the Goan domiciles were to be governed by that law inmatters covered under the Code and specifically included in the lawswhich were made applicable. The Indian Parliament did not makeapplicable all Portuguese laws but the laws which were applied wouldapply with full force. The Goa, Daman and Diu (Administration) Act,1962 is a special law dealing with the domiciles of Goa alone. Thisspecial law making the Portuguese Civil Code applicable is an exceptioncarved out of the general laws of succession namely Indian SuccessionAct, Hindu Succession Act, 1956, Muslim Personal Law (Shariat)Application Act, 1937 and other laws.

29. It is a well settled principle of statutory interpretation thatwhen there is a conflict between the general law and the special lawthen the special law shall prevail. This principle will apply with greaterforce to special law which is also additionally a local law. This judicialprinciple is based on the latin maxim generalia specialibus nonderogant, i.e., general law yields to special law should they operate inthe same field on the same subject. Reference may be made to thedecision of this Court in R.S. Raghunath vs. State of Karnataka &Ors.[8], Commercial Tax Officer, Rajasthan vs. Binani Cements Ltd.& Ors.[9]and Atma Ram Properties Pvt. Ltd. vs. The OrientalInsurance Co. Ltd.[10]

30. As far as Goa is concerned, there is a specific judgment in thisregard i.e. Justiniano Augusto De Piedade Barreto & Ors. vs. AntonioVicente Da Fonseca & Ors.,[11] though relating to the interpretation ofSection 29 of the Limitation Act, 1963, which deals with local and speciallaws. Dealing with the issue of the Portuguese Civil Code, the Courtheld that it could not escape from reaching the conclusion that thePortuguese Civil Code is a local law within the ambit of Section 29(2) ofthe Limitation Act, 1963. A special law is a law relating to a particular 7 Comparative Analysis of Civil Law Succession, Villanova Law Review Vol. 11,Issue 2

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Asubject while a local law is a law confined to a particular area or territory.In our considered view, the Portuguese Civil Code, in matters ofsuccession, is both a special law and a local law. It is special and localbecause it deals with laws of succession for the domiciles of Goa only.In Para 14 of this judgment, the Court held as follows:

B“14. We, therefore, arrive at the conclusion that the body ofprovisions in the Portuguese Civil Code dealing with the subjectof Limitation of suits etc. and in force in the Union Territory ofGoa, Daman and Diu only is ‘local law’ within the meaning ofSection 29(2) of the Limitation Act, 1963. As stated earlier theseprovisions have to be read into the Limitation Act, 1963, as if theCSchedule to the Limitation Act is amended mutatis mutandis. Noquestion of repugnancy arises. We agree with the JudicialCommissioner that the provisions of the Portuguese Civil Coderelating to Limitation continue to be in force in the Union Territoryof Goa, Daman and Diu.”D

31. In view of the aforesaid, we are clearly of the view that thePortuguese Civil Code being a special Act, applicable only to the domicilesof Goa, will be applicable to the Goan domiciles in respect to all theproperties wherever they be situated in India whether within Goa oroutside Goa and Section 5 of the Indian Succession Act or the laws ofEsuccession would not be applicable to such Goan domiciles.III. What is the effect of the grant of probate by the BombayHigh Court in respect of the Will executed by JMP?

32. We shall now deal with the issue “what is the effect of thegrant of probate of the Will of late JMP by the High Court of Bombay?”FAt the outset, we may say that the order granting probate has not beenproduced by any side though it is admitted by all sides that probate wasgranted and the appellants herein had notice of the probate case.Assuming that probate had been granted, what is the effect of the grantof probate on the laws of inheritance? Grant of probate has nothing toGdo with inheritance. The jurisdiction of a probate court is limited todecide whether the Will is genuine or not. The Will may be genuine butthe grant of probate does not mean that the Will is valid even if it violatesthe laws of inheritance. To give an example, supposing a Hindu bequeatheshis ancestral property by a Will and probate of the Will is granted, suchgrant of probate cannot adversely affect the rights of those members ofH

the coparcenary who had a right in the property since birth. Similar isthe case in Goa. The legitime is the right of the heirs by birth. Whenboth the spouses are alive, they own half of the property. Mere grant ofprobate will not mean that the husband can Will away more than half ofthe property even if that be in his name.

33. This Court in Krishna Kumar Birlavs.Rajendra SinghLodha[12] held as under:

“57. The 1925 Act in this case has nothing to do with the law ofinheritance or succession which is otherwise governed by statutorylaws or the custom, as the case may be. It makes detailedprovisions as to how and in what manner an application for grantof probate is to be filed, considered and granted or refused. Rightsand obligations of the parties as also the executors andadministrators appointed by the court are laid down therein.Removal of the existing executors and administrators andappointment of subsequent executors are within the exclusivedomain of the court. The jurisdiction of the Probate Court is limitedbeing confined only to consider the genuineness of the will. Aquestion of title arising under the Act cannot be gone into the (sicprobate) proceedings. Construction of a will relating to the right,title and interest of any other person is beyond the domain of theProbate 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 anymanner affect the rights of inheritance of all the legal heirs of thedeceased.

34. In view of the above discussion, we answer the question framedin Paragraph 1, holding that it will be the Portuguese Civil Code, 1867 asapplicable in the State of Goa, which shall govern the rights of successionand inheritance even in respect of properties of a Goan domicile situatedoutside Goa, anywhere in India.

35. In view of the above, we are clearly of the view that theimpugned judgment has to be set aside and the property of late JMP atBombay is to be included in the inventory of properties in the inventoryproceedings in Goa for all intent and purposes. Hence, we allow the A

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Aappeal, set aside the judgment of the learned Single Judge dated08.08.2002 and restore the order of the Court of Comarca Judge ofSalcete and Quepem, at Margao in Inventory Proceedings No.20436dated 15.10.1999. Pending application(s), if any, stand(s) disposed of.

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