UMA MAHESH BANDEKAR AND ANOTHER versus VIVEK SADANAND MARATHE AND OTHERS on 13 March 2019

[2019] 5 S.C.R. 357

UMA MAHESH BANDEKAR AND ANOTHER

v.

VIVEK SADANAND MARATHE AND OTHERS.

(Civil Appeal No.2961 of 2019)

MARCH 13, 2019

[L. NAGESWARA RAO AND M.R. SHAH, JJ.]

Goa Daman & Diu Buildings (Lease, Rent and Eviction)Control Act, 1968 – ss.2(o), 59 – Portuguese Civil Code, 1867 –Decree No.43525 – Succession, Special Notaries and InventoryProceeding Act, 2012 – ss.3, 5, 9, 6, 8 and 399 – After death ofparents, respondent No.1-brother of appellant no.1 initiated/filedthe inventory proceedings before the Inventory Court with the listof assets which did not include the ‘lease premises’ – Appellantsobjected the non-inclusion of ‘lease premises’ in the inventoryproceedings/list of assets – Inventory Court dismissed the objectionsof the appellants – High Court confirmed the dismissal by theInventory Court and held that considering s.2(o) of the Goa RentAct, appellant no.1-a married daughter has no right in the ‘leasepremises’ and a married daughter cannot be said to be a tenant ofthe ‘lease premises’ in view of s.2(o) of the Goa Rent Act – Onappeal, held: The dispute was neither under the provisions of theGoa Rent Act nor between the landlord and the tenant and therefore,both the inventory Court as well as the High Court had erred inconsidering the provisions of the Goa Rent Act, particularly s.2(o)of the Goa Rent Act – Under the provisions of the erstwhilePortuguese Civil Code and/or under the provisions of the InventoryProceeding Act, 2012, there is no further classification between adaughter married or unmarried and son – Therefore, consideringthe scheme and the provisions of the erstwhile Portuguese CivilCode and as per the provisions of the Inventory Proceeding Act,2012, even the married daughter would have a right of successionin the ‘lease premises’ – In the instant case, appellant no.1 beingmarried daughter shall have a right of succession in the ‘leasepremises’ and the same ought to have been included in the list ofassets in inventory proceedings – Thus, impugned orders passed bythe inventory court and the High Court quashed and set aside.

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AAllowing the appeal, the Court

HELD: 1.The short question which is posed forconsideration before this Court is, right of a married daughter byway of succession in the “lease premises” and whether withrespect to “lease premises”, a married daughter shall have aBright of succession, vis a vis, Succession, Special Notaries andInventory Proceeding Act, 2012 or not? [Para 6.1] [366-E-F]

2. At the outset, it is required to be noted that theproceedings before the inventory court as well as the High Courtwere under the provisions of the Inventory Proceeding Act, 2012/CPortuguese Civil Code, which shall be continued on enactmentof the Inventory Proceeding Act, 2012, as if those proceedingswere/are initiated under the Inventory Proceeding Act, 2012 (inview of Section 460 of the Inventory Proceeding Act, 2012). It isrequired to be noted that the proceedings before the inventorycourt and the High Court were not at all with respect to GoaDDaman & Diu Buildings (Lease, Rent and Eviction) Control Act,1968. The proceedings were not between the landlord and thetenant. The provisions of Goa Rent Act shall be applicable withrespect to dispute between the landlord and the tenant. As perthe preamble of the Goa Rent Act, it has been enacted for controlEof rents and evictions. At the cost of repetition, it is observedthat the dispute was neither under the provisions of the Goa RentAct nor between the landlord and the tenant and therefore both,the inventory court as well as the High Court have erred inconsidering the provisions of the Goa Rent Act, more particularlySection 2(o) of the Goa Rent Act. The only question which wasFbefore the inventory court and the High Court was in respect ofthe rights of succession of a married daughter in the “leasepremises” under the provisions of the Portuguese Civil Codeand subsequently under the provisions of the InventoryProceeding Act, 2012. Therefore, what is required to beGconsidered is whether under the provisions of the PortugueseCivil Code and on enactment of Inventory Proceeding Act, 2012,whether the married daughter would have a right of successionin the “lease premises” or not? [Para 9] [368-H; 369-A-E]

3. Considering the relevant provisions of the InventoryHProceeding Act, 2012, first of all, it is required to be noted that

so far as rights of successor, i.e., heirs and legatees, as providedunder Section 5 of the Inventory Proceeding Act, 2012, as such,there is no classification between the daughter married orunmarried and son. It cannot be disputed that a daughter, maybe a daughter married or unmarried, would have a right ofsuccession in the properties of the parents including the lease.Section 399 of the Inventory Proceeding Act, 2012 provides forlist of assets which can be thrown to succession and it includesmovable and immovable assets including mortgages, easements,leases and other encumbrances. Even, as admitted by theadvocate appearing on behalf of the respondents, so stated inthe additional written submissions, it is not disputed to theproposition, whether Portuguese Civil Code, 1867 makes nodistinction as to the gender of the child or as to the order of birthor as to the status of being single or married to discriminate inmatters relating to succession. It is also admitted that this legalposition has not been changed pursuant to the enactment andenforcement of the Inventory Proceeding Act, 2012, brought intoforce with effect from 19.09.2016. Even otherwise, as per Section68 of the Inventory Proceeding Act, 2012, all the children andtheir descendants succeed to their respective parents and otherascendants, without distinction of sex or age. Thus, under theprovisions of the erstwhile Portuguese Civil Code, 1867 and/orunder the provisions of the Inventory Proceeding Act, 2012, thereis no further classification between a daughter married orunmarried and son. Therefore, considering the scheme and theprovisions of the erstwhile Portuguese Civil Code and as per theprovisions of the Inventory Proceeding Act, 2012, which has comeinto effect with effect from 19.09.2016, even the married daughterwould have a right of succession in the “lease premises”. Asobserved hereinabove, Section 399 of the Inventory ProceedingAct, 2012 provides for list of assets which includes movablesand immovables assets including mortgages, easements, leasesand other encumbrances. [Para 10] [369-E-H; 370-A-D]

4. Insofar as the submission on behalf of the respondentsthat in view of the subsequent development of the inventory courtpronouncing the final order and has drawn the final chart ofpartition in Regular Inventory Proceeding No. 11/2013/C, which AB

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[2019] 5 S.C.R.

Adoes not include the “lease premises” and the appellants havingsigned and accepted the same, the present proceedings havebecome infructuous is concerned, the aforesaid has no substanceand the same is required to be rejected outright. It is requiredto be noted that the final order has been pronounced by theinventory court during the pendency of the present proceedings,Bexcluding the “lease premises” in the list of assets in theinventory proceedings which are under challenge. As the leasepremises was not included in the list of assets in the inventoryproceedings, naturally, the same would not be in the final chart ofpartition, and therefore, whatever order is passed by the inventoryCcourt, the appellants would have to sign and accept the same.However, as the present proceedings were pending and duringthe pendency of the present proceedings, the inventory courthas pronounced the final order and has drawn the final chart ofpartition, it cannot be said that the challenge to the exclusion of

the “lease premises” from the list of assets in the inventoryDproceedings has become infructuous. As the present proceedingswere pending, the right of the appellants to challenge the exclusionof the “lease premises” from the list of assets in the inventoryproceedings would continue and once it is held that appellantno.1 being a married daughter would have a right of successionEin the “lease premises”, and the same was wrongly excludedfrom the list of assets in the inventory proceedings, despite thefinal order being passed in the inventory proceedings and thefinal chart being drawn, the same can be amended with the aid ofSection 446 of the Inventory Proceeding Act, 2012. [Para 12][370-F-H; 371-A-D]FMohammad Laiquiddin v. Kamala Devi Misra (Dead)by LRs. (2010) 2 SCC 407 : [2010] 1 SCR 873– referred to.

Case Law Reference

G[2010] 1 SCR 873 referred toPara 5.3CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2961of 2019.

From the Judgment and Order dated 05.05.2016 of the High Courtof Bombay at Goa in Appeal From Order No. 39 of 2015.H

UMA MAHESH BANDEKAR v. VIVEK SADANAND MARATHE.

Ms. Binu Tamta, Dhruv Tamta, Advs. for the Appellants.

Ms. A. Subhashini, Adv. for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J. 1. Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 05.05.2016 passed by the High Court of Judicature atBombay, Bench at Goa in Appeal from Order No. 39/2015, by which theHigh Court has dismissed the said Appeal from Order and has confirmedthe order dated 02.06.2015 passed by the learned IIIrd Additional AdhocSenior Civil Judge, Margao in the Inventory Proceedings by the originalInventariante and other parties, the original appellants before the HighCourt have preferred the present appeal.

3. The facts leading to the present appeal in nutshell are as under:

At the outset it is required to be noted that the ‘lease premises’was of a partnership firm in the name and style “Ramnath AnantKesarkar” at Margao. That appellant no.1 and respondent nos. 1 & 3herein are the sisters and brother. The parents of the parties (appellantno.1 and respondent nos. 1 & 3 herein), namely, Late Sadanand V.Marathe and his wife Late Nirmalabai S. Marathe succeeded to thelease premises in terms of Deed of Partition dated 29.03.1976, registeredin the office of the Sub-Registrar of Salcete at Margao, Goa. The saidpremises was of a partnership firm in the name and style “RamnathAnant Kesarkar” having business carried out in the tenanted premisesbelonging to one Jairam Vasant Katkar at Margao. That the fatherSadanand V. Marathe died on 12.05.1985. That the mother NiarmalabaiS. Marathe died on 05.05.1998. Thus, the parents of the parties i.e.,Late Sadanand V. Marathe and his wife Late Niarmalabai S. Marathesince deceased passed away on 12.05.1985 and 05.05.1998 respectively.That after the demise of the parents, respondent no.1 – brother of appellantno.1 and son of Late Sadanand V.Marathe and Late Nirmalabai S.Marathe filed Regular Inventory Proceedings No.11/2013/C dated08.11.2013. That the Court appointed respondent no.1 as the head ofthe family/Cabeca de Casal to administer the estate left by the deceased,during the pendency of the said proceedings and also appointed a courtvaluer for valuing and determining the extent of properties stated in theinventory proceedings. The valuer appointed by the court submitted its A

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Areport to the court on 30.04.2014. The appellants herein filed objectionsto the valuation report, inter alia, pointing out that there are certaininfirmities regarding the enlisted plots, survey nos. and also ambiguousnarration of the area and the amended list of assets. As a result of thesaid objections, respondent no.1 filed a revised list of assets in the inventoryproceedings on 16.10.2014. The appellants herein filed their objections/Breply to the revised list of assets. The main objection on behalf of theappellants was non-inclusion of the ‘lease premises’ in the inventoryproceedings/list of assets. Respondent no.1 filed reply to the objectionsof the appellants. It was submitted on behalf of respondent no.1 that thepartnership firm does not form part of the estate of the deceased asCmarried daughters are not entitled to the tenanted premises.

3.1 That by order dated 02.06.2015, the learned Civil Judge atMargao (hereinafter referred to as the ‘Inventory Court’) dismissed theobjections of the appellants for correcting the area of the said propertyand also denied enlisting of the said tenanted premises to the estate ofDthe deceased.

3.2 Aggrieved with the order passed by the learned InventoryCourt dated 02.06.2015, the appellants filed an appeal before the HighCourt being Appeal from Order No. 39/2015. That by the impugnedjudgment and order, the High Court of Bombay at Goa has dismissed theEappeal preferred by the appellants. From the impugned judgment andorder passed by the High Court, it appears that the High Court hasmainly relied upon Section 2(o) of the Goa Daman & Diu Buildings(Lease, Rent and Eviction) Control Act, 1968 (hereinafter referred to asthe ‘Goa Rent Act’), and relying upon the aforesaid provision of the GoaRent Act, the High Court has held that the married daughter would notFqualify as a tenant in terms of the Goa Rent Act. The High Court alsoexamined and considered Decree No. 43525 of the Portuguese CivilCode and observed and held that in view of Section 59 of the Goa RentAct and the repeal provision, Decree No. 43525 of Portuguese CivilCode shall stand repealed and the parties shall be governed by theGprovisions of the Goa Rent Act only.

3.3 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court and dismissing the Appeal fromOrder and confirming the order passed by the learned Inventory Courtholding that being a married daughter, appellant no.1 has no right in theH“lease premises” and therefore the same cannot be subjected to the inventory proceedings, the appellants -original petitioners – objectorshave preferred the present appeal.

3.4 This Court issued notice in the special leave petition videorder dated 08.07.2016. That during the pendency of the present appeal,the Inventory Court has pronounced the final order and has drawn thefinal chart of partition in Regular Inventory Proceeding No.11/2013/Cvide final order dated 31.07.2017, excluding the “lease premises” whichis the subject matter of present appeal.

4. Ms. Binu Tamta, learned advocate has appeared on behalf ofthe appellants and Ms. A. Subhashini, learned advocate has appearedon behalf of the respondents.

4.1 Ms. Binu Tamta, learned advocate appearing on behalf of theappellants has vehemently submitted that both, the learned InventoryCourt as well as the High Court have materially erred in not consideringthe right of a married daughter, vis a vis, the Goa Succession, SpecialNotaries and Inventory Proceeding Act, 2012 (hereinafter referred toas the ‘Inventory Proceeding Act 2012’).

4.2 It is vehemently submitted by the learned counsel appearingon behalf of the appellants that both, the learned Inventory Court as wellas the High Court have materially erred in considering the provisions ofthe Goa Rent Act and not at all considering the right of succession of themarried daughters as per the Inventory Proceeding Act, 2012.

4.3 It is vehemently submitted by the learned counsel appearingon behalf of the appellants that so far as the succession in the inventoryproceedings is concerned, the parties are governed by the InventoryProceeding Act, 2012.

4.4 Ms. Binu Tamta, learned advocate appearing on behalf of theappellants has taken us to the relevant provisions of the InventoryProceeding Act, 2012 and relying upon the relevant provisions of theInventory Proceeding Act, 2012, more particularly Sections 3, 5, 9, 68 ofthe said Act, has submitted that under the provisions of the InventoryProceeding Act, 2012, there is no distinction/classification betweendaughter married or unmarried & son. It is submitted by Ms. BinuTamta, learned counsel on behalf of the appellants that Section 399provides for list of assets, movable & immovable assets includingmortgages, easements, lease and others encumbrances.

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A4.5 It is further submitted by the learned counsel appearing onbehalf of the appellants that definition of ‘tenant’ under the Goa RentAct shall not be applicable in the case of Law of Succession. It issubmitted that in the present case the proceedings were not initiatedunder the Goa Rent Act and the dispute was not between the landlordand the tenant, and therefore, the provisions of the Goa Rent Act shallBnot be applicable at all. It is submitted that therefore both the courtsbelow have materially erred in non-suiting the appellants relying uponand/or considering the provisions of Goa Rent Act. It is submitted thatboth the courts below have not properly appreciated the fact that theproceedings were/are inventory proceedings for the purpose ofCinheritance of the estate of the deceased and therefore the provisions ofthe Inventory Proceeding Act, 2012 only shall be applicable and arerequired to be considered.

4.6 It is vehemently submitted by the learned counsel appearingon behalf of the appellants that if the rights of appellant no.1 being aDmarried daughter are considered vis a vis/considering the InventoryProceeding Act, 2012, in that case, appellant no.1 being a married daughtershall have a right of succession with respect to “lease premises”,considering Sections 3,5,9,68 and 399 of the Inventory Proceeding Act,2012.

E4.7 Making the above submissions, it is vehemently submitted bythe learned counsel appearing on behalf of the appellants that both thecourts below have materially erred in excluding the “lease premises”from the list of assets in the inventory proceedings and have materiallyerred in observing and holding that appellant no.1 being a married daughterhas no right of succession in the “lease premises”. Making the aboveFsubmissions, it is prayed to allow the present appeal.

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5. The present appeal is vehemently opposed by Ms. A.Subhashini, learned advocate appearing on behalf of the respondents.

5.1 It is vehemently submitted by the learned counsel appearingGon behalf of the respondents that in view of the subsequent developmentand passing the final order by the Inventory Court and drawing the finalchart of partition in Regular Inventory Proceeding No. 11/2013/C, whichhas been signed and accepted even by the appellants, the present appealhas become infructuous. It is vehemently submitted by the learned counsel H

appearing on behalf of the respondents that in the final order and/or thefinal chart of partition in Regular Inventory Proceeding No. 11/2013/C,the “lease premises” has not been included and the said order has beenaccepted by the appellants, the present appeal has become infructuous.

5.2 It is vehemently submitted by the learned counsel appearingon behalf of the respondents that even on merits also, both the courtsbelow have rightly held that appellant no.1 being a married daughter hasno right of succession in the “lease premises” in view of Section 2(o) ofthe Goa Rent Act. It is submitted that considering the provisions ofSection 2(o) of the Goa Rent Act, a married daughter has no right in thetenanted/lease premises.

5.3 It is vehemently submitted by the learned counsel appearingon behalf of the respondents that right of a married daughter in the“lease premises” has been considered by this Court in the case ofMohammad Laiquiddin vs. Kamala Devi Misra (Dead) by Lrs.,(2010) 2 SCC 407. It is submitted that in the aforesaid case, this Courthas also considered Decree No. 43525 under the Portuguese Civil Codeand also Section 59 of the Goa Rent Act, which relates to the repeal andsavings clause. It is submitted that as held by this Court in the aforesaiddecision as from the date on which the Goa Rent Act has brought intoforce in any local area, the provisions of Decree No. 43525 dated 7[th]March, 1961 and the Legislative Diploma No. 1409 dated 14.02.1952and the corresponding provisions of any other law for the time being inforce shall stand repealed in that area. It is submitted that in the presentcase, as such, the appellants heavily relied upon Decree No. 43525 dated7.3.1961. It is submitted that however in view of Section 59 of the GoaRent Act, the provisions of Decree No. 43525 dated 7.3.1961 standrepealed, the appellants cannot claim any right on the basis of theprovisions of Decree No. 43525 dated 7.3.1961.

5.4 It is vehemently submitted by the learned counsel appearingon behalf of the respondents that as per Section 2(o) of the Goa RentAct, a married daughter would not qualify as a tenant and thereforebeing a married daughter appellant no.1 cannot claim any right in thetenanted/lease premises. It is submitted that the special law overridethe general law and the Goa Rent Act being a special law which makesspecial provision for any inheritance upon the death of the tenant andthe tenancy created by the Special Statute would be construed as a A

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Astatutory tenant, the statutory tenancy making no provision for inheritance,confers no right on any legal heir. It is further submitted that consequentupon the enforcement of the Goa Rent Act, not only Decree No. 43525dated 7.3.1961 came to be repealed (in view of Section 59 of the GoaRent Act), but also “the corresponding provision of any other law for thetime being in force”, which would mean that the general law of successionBcontained in the Portuguese Civil Code, 1867, would automatically standrepealed upon the enforcement of the Goa Rent Act insofar as buildingtenancies are concerned. It is submitted that therefore reliance placedupon Section 399 of the Inventory Proceeding Act, 2012 is misplaced. Itis submitted that even Section 460 of the Inventory Proceeding Act,C2012 has no application in the present case.

5.5 Making the above submissions, it is vehemently submitted bythe learned advocate appearing on behalf of the respondents that theInventory Court as well as the High Court have rightly held that appellantno.1 being a married daughter has no right in the “lease premises”, andDtherefore, the same is rightly excluded from the list of assets in theinventory proceedings.

5.6 Making the above submissions, it is prayed to dismiss thepresent appeal.

6. We have heard learned counsel for the respective parties atElength.

6.1 The short question which is posed for consideration beforethis Court is, right of a married daughter by way of succession in the“lease premises” and whether with respect to “lease premises”, a marrieddaughter shall have a right of succession, vis a vis, Inventory ProceedingFAct, 2012 or not?

6.2 While considering the aforesaid question/issue, the relevantprovisions of the Inventory Proceeding Act, 2012 are required to bereferred to and considered.

6.3 The Goa Succession, Special Notaries and InventoryProceeding Act, 2012 has been enacted to consolidate and amend thelaw of intestate and testamentary succession, notarial law and the lawsrelating to partition of an inheritance and matters connected therewith.It has come into force with effect from 19.09.2016. Further, theInventory Proceeding Act, 2012 shall be applicable with respect to pending G

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proceedings also, in view of Section 460 of the Inventory ProceedingAct, 2012. Section 3 of the Inventory Proceeding Act, 2012 definessuccession. As per Section 3 of the Act, succession is the transmissionof the estate of a deceased person in favour of his successors. It furtherprovides that a successor is the person who is called to succeed to thejuridical relations of the deceased person and upon whom the assets andliabilities devolve. Section 5 of the Inventory Proceeding Act, 2012provides for the types of successors; heirs and legatees. As per the saidprovision, heir is the person who inherits or succeeds to the totality ofthe estate of the estate leaver or to an undefined share thereof withoutspecifying the assets constituting it, while a legatee is the one whosucceeds to specific and determined assets. As per Section 9 of theInventory Proceeding Act, 2012, all persons, besides the State, who areborn or conceived at the time of the opening of the succession arecompetent to succeed, unless the law provides otherwise. Section 10 ofthe Inventory Proceeding Act, 2012 provides for incompetence to succeedby reason of unworthiness to succeed. It provides for the persons whoshall be unworthy to succeed the estate leaver and are consequentlyincompetent to be the successors (it does not include the marrieddaughter). Section 52 of the Inventory Proceeding Act, 2012 providesfor order of legal succession. It provides inter alia that the legal successionshall devolve in the order as mention in Section 52 and it first devolve onthe descendants. Section 68 of the Inventory Proceeding Act, 2012provides for succession of children and their descendants and itspecifically provides that the children and their descendants succeed totheir respective parents and other ascendants, without distinction ofsex or age. Section 399 of the Inventory Proceeding Act, 2012 providesfor initial list of assets and it includes movables and livestock, theimmovables including mortgages, easements, leases and otherencumbrances thereon and lastly depts due by the estate. Section 446of the Inventory Proceeding Act, 2012 permits amendment of partition.It provides that the partition may be amended, even after it has becomefinal and no appeal has been preferred, in the very same inventoryproceedings by agreement of the parties or their representatives, wherethere is a mistake of facts in the list of assets or in the classification ofthe assets or any other error which vitiates the will of the parties. Section460 of the Inventory Proceeding Act, 2012 provides that on and fromthe date of coming into force the Inventory Proceeding Act, 2012, all AB

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Aprovisions of the laws in force at present corresponding to any of theprovisions of the Inventory Proceeding Act, 2012 shall stand repealed.However, sub-section 3 of Section 460 of the Inventory Proceeding Act,2012 provides that “all proceedings pending under the repealed lawsbefore any court in the State or Goa, as on the date of the coming intoforce of the Inventory Proceeding Act, 2012, shall be continued in termsBof the procedure provided in the Inventory Proceeding Act, 2012. TheInventory Proceeding Act, 2012 provides for the proceedings/inventoryproceedings to partition the inheritance of a deceased person or to obtaina formal order of allotment of inheritance by the Court. A person whoinitiates the inventory proceedings has to submit the list of assets to beCpartitioned.

7. In the present case, respondent no.1 - brother of appellant no.1initiated/filed the inventory proceedings before the Inventory Court withthe list of assets which did not include the “lease premises”. Accordingto respondent no.1 the “lease premises” was not included in the list ofDassets as the “lease premises” is not inheritable and that appellant no.1being a married daughter has no right of succession in the tenanted/lease premises. Appellant no.1 herein raised an objection against non-inclusion of the “lease premises” in the list of assets submitted in theinventory proceedings. The objection came to be overruled by the learnedInventory Court which has been confirmed by the High Court by theEimpugned judgment and order on the ground that considering Section2(o) of the Goa Rent Act, a married daughter has no right in the “leasepremises” and a married daughter cannot be said to be a tenant of the“lease premises” in view of Section 2(o) of the Goa Rent Act.

8. Having heard the learned advocates appearing for theFrespective parties and considering the relevant provisions of the InventoryProceeding Act, 2012 and the provisions of the Goa Rent Act, for thereasons hereinbelow, we are of the opinion that both, the learnedInventory Court as well as the High Court have committed a grave errorin relying upon the provisions of the Goa Rent Act, while considering theGright of succession of a married daughter in the “lease premises” vis avis and/or under the Inventory Proceeding Act, 2012.

9. At the outset, it is required to be noted that the proceedingsbefore the inventory court as well as the High Court were under theprovisions of the Inventory Proceeding Act, 2012/ Portuguese Civil Code, H

which shall be continued on enactment of the Inventory Proceeding Act,2012, as if those proceedings were/are initiated under the InventoryProceeding Act, 2012 (in view of Section 460 of the Inventory ProceedingAct, 2012). It is required to be noted that the proceedings before theinventory court and the High Court were not at all with respect to GoaRent Act. The proceedings were not between the landlord and thetenant. The provisions of Goa Rent Act shall be applicable with respectto dispute between the landlord and the tenant. As per the preamble ofthe Goa Rent Act, it has been enacted for control of rents and evictions.At the cost of repetition, it is observed that the dispute was neither underthe provisions of the Goa Rent Act nor between the landlord and thetenant and therefore both, the inventory court as well as the High Courthave erred in considering the provisions of the Goa Rent Act, moreparticularly Section 2(o) of the Goa Rent Act. The only question whichwas before the inventory court and the High Court was in respect of therights of succession of a married daughter in the “lease premises” underthe provisions of the Portuguese Civil Code and subsequently under theprovisions of the Inventory Proceeding Act, 2012. Therefore, what isrequired to be considered is whether under the provisions of thePortuguese Civil Code and on enactment of Inventory Proceeding Act,2012, whether the married daughter would have a right of succession inthe “lease premises” or not?

10. Considering the relevant provisions of the Inventory ProceedingAct, 2012, referred to hereinabove, first of all, it is required to be notedthat so far as rights of successor, i.e., heirs and legatees, as providedunder Section 5 of the Inventory Proceeding Act, 2012, as such, there isno classification between the daughter married or unmarried and son. Itcannot be disputed that a daughter, may be a daughter married orunmarried, would have a right of succession in the properties of theparents including the lease. Section 399 of the Inventory ProceedingAct, 2012 provides for list of assets which can be thrown to successionand it includes movable and immovable assets including mortgages,easements, leases and other encumbrances. Even, as admitted by thelearned advocate appearing on behalf of the respondents, so stated inthe additional written submissions, it is not disputed to the proposition,whether Portuguese Civil Code, 1867 makes no distinction as to thegender of the child or as to the order of birth or as to the status of beingsingle or married to discriminate in matters relating to succession. It is AB

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Aalso admitted that this legal position has not been changed pursuant tothe enactment and enforcement of the Inventory Proceeding Act, 2012,brought into force with effect from 19.09.2016. Even otherwise, as perSection 68 of the Inventory Proceeding Act, 2012, all the children andtheir descendants succeed to their respective parents and otherascendants, without distinction of sex or age. Thus, under the provisionsBof the erstwhile Portuguese Civil Code, 1867 and/or under the provisionsof the Inventory Proceeding Act, 2012, there is no further classificationbetween a daughter married or unmarried and son. Therefore,considering the scheme and the provisions of the erstwhile PortugueseCivil Code and as per the provisions of the Inventory Proceeding Act,C2012, which has come into effect with effect from 19.09.2016, even themarried daughter would have a right of succession in the “leasepremises”. As observed hereinabove, Section 399 of the InventoryProceeding Act, 2012 provides for list of assets which includes movablesand immovables assets including mortgages, easements, leases and otherencumbrances.D

11. From the impugned orders passed by the inventory court andthe High Court, it is not in dispute that both the courts below have heldagainst the appellants, more particularly appellant no.1 – married daughter,mainly relying upon and considering Section 2(o) of the Goa Rent Act,which, as observed hereinabove, ought not to have been considered andEhas no relevance while considering the right of succession of a marrieddaughter in the “lease premises” under the provisions of the erstwhilePortuguese Civil Code and subsequently on enactment of the InventoryProceeding Act, 2012. The sum and substance of the above discussionwould be that a married daughter would have a right of succession in the F“lease premises” also.

12. Insofar as the submission on behalf of the respondents that inview of the subsequent development of the inventory court pronouncingthe final order and has drawn the final chart of partition in RegularInventory Proceeding No. 11/2013/C, which does not include the “leaseGpremises” and the appellants having signed and accepted the same, thepresent proceedings have become infructuous is concerned, the aforesaidhas no substance and the same is required to be rejected outright. It isrequired to be noted that the final order has been pronounced by theinventory court during the pendency of the present proceedings, excluding

the “lease premises” in the list of assets in the inventory proceedingswhich are under challenge. As the lease premises was not included inthe list of assets in the inventory proceedings, naturally, the same wouldnot be in the final chart of partition, and therefore, whatever order ispassed by the inventory court, the appellants would have to sign andaccept the same. However, as the present proceedings were pendingand during the pendency of the present proceedings, the inventory courthas pronounced the final order and has drawn the final chart of partition,it cannot be said that the challenge to the exclusion of the “leasepremises” from the list of assets in the inventory proceedings has becomeinfructuous. As the present proceedings were pending, the right of theappellants to challenge the exclusion of the “lease premises” from thelist of assets in the inventory proceedings would continue and once it isheld that appellant no.1 being a married daughter would have a right ofsuccession in the “lease premises”, and the same was wrongly excludedfrom the list of assets in the inventory proceedings, despite the finalorder being passed in the inventory proceedings and the final chart beingdrawn, the same can be amended with the aid of Section 446 of theInventory Proceeding Act, 2012.

13. In view of the above and for the reasons stated, the presentAppeal Succeeds. The impugned orders passed by the inventory courtand the High Court are hereby quashed and set aside, and it is held thatappellant no.1 being a married daughter shall have a right of successionin the “lease premises” and the same ought to have been included in thelist of assets in the inventory proceedings. Consequently, the partition asper the final order passed by the inventory court and consequent drawingof the final chart of partition, pursuant to the final order dated 31.07.2017in Regular Inventory Proceeding No. 11/2013/C be amended accordinglywith the aid and/or considering Section 446 of the Inventory ProceedingAct, 2012.

14. The instant APPEAL is ALLOWED accordingly, in terms ofthe above. However, there shall be no order as to costs.

Ankit Gyan

Appeal allowed.

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C

D

E

F

G

H