Back
SUPREME COURT OF INDIA
Deepak Gupta, Aniruddha Bose, JJ.
JOSE PAULO COUTINHO – APPELLANT(S)
Versus
MARIA LUIZA VALENTINA PEREIRA & ANR. - RESPONDENT(S)
CIVIL APPEAL NO. 7378 OF 2010
Decided on : 13-09-2019
(A) Portuguese Civil Code, 1867 – Goa, Daman and Diu (Administration) Act, 1962 – Section 5 – Succession to property – Goa, Daman and Diu became an integral part of India as a Union Territory of India with effect from date of its annexation by conquest. Goa became a full-fledged State in 1987 – Civil Code may be a Code of Portuguese origin but after conquest and annexation of Goa, Daman and Diu, this Code became applicable to domiciles of Goa only by virtue of Ordinance and thereafter, by the Act – Civil Code has been enforced in Goa, Daman and Diu by an Act of Indian Parliament and becomes an Indian law – Portuguese law which may have had foreign origin became a part of 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 – Portuguese Civil Code is an Indian law and no principles of private international law are applicable to this case. (Paras 13, 14 and 18)
(B) Portuguese Civil Code, 1867 – Article 24 – Goa, Daman and Diu (Administration) Act, 1962 – Section 5 – Succession to property – When a law is adopted or applied in a new situation, it has to be read in that context – There are no Goan citizens; there can be domiciles of Goa but all are citizens of India – As Indian citizens, under Article 19 of Constitution, they are free to move to any part of country, reside there and buy property subject to local laws and limitations – A domicile of Goa 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 living in a foreign country – Indian citizens living in India cannot be said to be living in a foreign country – This person is only a Goan domicile living outside Goa in India which is his country – Article 24 has no applicability. (Para 22)
(C) Indian Succession Act, 1925 – Section 5 – Portuguese Civil Code, 1867 – Article 24 – Goa, Daman and Diu (Administration) Act, 1962 – Section 5 – Succession to property – Portuguese Civil Code being a special Act, applicable only to domiciles of Goa, will be applicable to Goan domiciles in respect to all the properties wherever they be situated in India whether within Goa or outside Goa – Section 5 of Indian Succession Act or laws of succession would not be applicable to such Goan domiciles. (Para 31)
(D) Interpretation of Statute – Parameters – When there is a conflict between general law and special law then special law shall prevail – This principle will apply with greater force to special law which is also additionally a local law – This judicial principle is based on Latin maxim generalia specialibus non derogant, i.e., general law yields to special law should they operate in same field on same subject. (Para 29)
(E) Indian Succession Act, 1925 – Section 276 – Portuguese Civil Code, 1867 – Grant of Probate – Legal consequences – Grant of probate has nothing to do with inheritance – Jurisdiction of Probate Court is limited to decide whether Will is genuine or not – Will may be genuine but grant of probate does not mean that Will is valid even if it violates laws of inheritance – Legitime is right of heirs by birth – When both spouses are alive, they own half of property – Mere grant of probate will not mean that husband can Will away more than half of property even if that be in his name – Grant of probate by Bombay High Court did not in any manner affect rights of inheritance of all legal heirs of deceased – It will be Portuguese Civil Code, 1867 as applicable in State of Goa, which shall govern rights of succession and inheritance even in respect of properties of a Goan domicile situated outside Goa, anywhere in India. (Paras 32, 3 and 34)
Facts of Case:
Whether succession to property of a Goan situate outside Goa in India will be governed by Portuguese Civil Code, 1867 as applicable in State of Goa or the Indian Succession Act, 1925” is the question which arises for decision in this appeal.
Findings of Court:
Grant of probate has nothing to do with inheritance. Jurisdiction of a probate court is limited to decide whether the Will is genuine or not. Will may be genuine but the grant of probate does not mean that Will is valid even if it violates the laws of inheritance.
Result : Appeal allowed.
Certainly. Based on the provided legal document, here are the key points:
The grant of probate is limited to verifying the genuineness of the Will and does not determine the validity of inheritance rights. Probate does not affect the legal rights of heirs or their entitlements under inheritance laws (!) (!) .
It is the Portuguese Civil Code, 1867, as applicable in the State of Goa, that governs rights of succession and inheritance for a Goan domicile, even if the property is situated outside Goa within India (!) .
The Portuguese Civil Code, which is of Portuguese origin, has been incorporated into Indian law through specific legislation, and therefore, it is no longer considered a foreign law. Consequently, principles of private international law are not applicable to this case (!) .
The applicability of the Portuguese Civil Code extends to all properties of domiciles of Goa, regardless of whether these properties are within Goa or elsewhere in India. Laws of succession such as the Indian Succession Act or personal laws do not apply to these properties (!) (!) .
When there is a conflict between general and special laws, the special law, especially when it is also a local law, prevails. This principle supports the application of the Portuguese Civil Code over the Indian Succession Act for Goan domiciles (!) (!) .
The legal concept of succession under the Portuguese Civil Code involves the idea of universal succession, where the estate of the deceased includes all rights and obligations, with certain exclusions such as personal assets or those disposed of by the deceased (!) (!) .
The law recognizes a right of legitime, which is a portion of the estate that heirs by birth cannot be deprived of. This applies to both properties within and outside Goa, and the calculation of this legitime considers the entire estate of the deceased (!) (!) (!) .
The principles of succession under the Portuguese Civil Code advocate for unity of succession, meaning the estate is treated as a whole, and all properties are considered collectively when applying succession rules (!) .
The law applicable to a property depends on its location, with the law of the place where the property is situated generally governing its succession, unless specific provisions or laws indicate otherwise (!) .
The grant of probate by a court does not impact the inheritance rights of heirs; it only confirms the genuineness of the Will. The legal rights of heirs, including those with rights by birth, remain unaffected by probate proceedings (!) (!) .
The applicable law for properties of a Goan domicile outside Goa is the Portuguese Civil Code, not the Indian Succession Act, and this applies to all such properties across India (!) (!) .
The legal framework established by legislation and historical context confirms that the Portuguese Civil Code is an integral part of Indian law for domiciles of Goa, and its provisions govern succession regardless of property location within India (!) (!) .
Please let me know if you need further clarification or assistance.
JUDGMENT
Deepak Gupta, J.
1. "Whether succession to the property of a Goan situate outside Goa in India will be governed by the Portuguese Civil Code, 1867 as applicable in the State of Goa or the Indian succession Act, 1925" is the question which arises for decision in this appeal.
2. One Joaquim Mariano Pereira (JMP) had three daughters viz., (1) Maria Luiza Valentina Pereira (ML), Respondent No.1 (2) Virginia Pereira and (3) Maria Augusta Antoneita Pereira Fernandes. He also had a wife named Claudina Lacerda Pereira. He lived in Bombay and purchased a property in Bombay in the year 1955. On 06.05.1957 he bequeathed this property at Bombay to his youngest daughter, Maria Luiza Valentina Pereira, Respondent No.1. He bequeathed Rs. 3000/- each to his other two daughters. His wife expired on 31.10.1960 when he was still alive. JMP died on 02.08.1967. The probate of the Will dated 06.05.1957 was granted by the High Court of Bombay, at Goa on 12.09.1980. Both the other daughters were served notice of the probate proceedings.
3. Goa was liberated from Portuguese rule on 19.12.1961. An ordinance being The Goa, Daman and Diu (Administration) Ordinance was promulgated on 05.03.1962 and thereafter the Goa, Daman and Diu (Administration) Act, 1962 was enacted, hereinafter referred to as 'the Act of 1962'. Both the Ordinance as well as the Act of 1962 provided 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 by the competent legislature or authority. Section 5 of the Act of 1962 which is relevant for our purpose reads as follows:-
"5. Continuance of existing laws and their adaptation. - (1) All laws in force immediately before the appointed day in Goa, Daman and Diu or any part thereof shall continue to be in force therein until amended or repealed by a competent Legislature or other competent authority.
(2) For the purpose of facilitating the application of any such law in relation to the administration of Goa, Daman and Diu as a Union territory and for the purpose of bringing the provisions of any such law into accord with the provisions of the Constitution, the Central Government may within two years from the appointed day, by order, may (sic make) such adaptations and modifications, whether by way of repeal or amendment, as may be necessary or expedient and thereupon, every such law shall have effect subject to the adaptations and modifications so made."
4. It is not disputed before us that the Portuguese Civil Code, 1867 (hereinafter referred to as 'the Civil Code') as applicable in the State of Goa before its liberation in 1962 would apply. The Civil Code is in two parts - one part deals with all substantial civil laws including laws of succession and the other part deals with procedure. As far as the present case is concerned, the parties are ad idem that in so far as the succession to the properties in Goa is concerned, they are governed by the Civil Code. The main dispute is 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 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.
5. It would be apposite to digress a little and refer to certain provisions of the Civil Code in relation to succession. Succession is governed under Title II, Chapter I of the Civil Code. Under the Civil Code [In this judgment, the articles of Portuguese Civil Code have been quoted from the translation of the Code made by Manohar Sinai Usgaocar, Senior Advocate, Civil Code in Goa, First Edition, 2017, Vaikuntrao Dempo Centre for Indo Portuguese Studies. The wording in a translation made by the Government of Goa in some articles is slightly different but the meani
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
