The Portuguese Civil Code to govern the rights of succession and inheritance with respect of properties of a Goan situated outside Goa, anywhere in India: SC

The question that arose for consideration before the Supreme Court Bench of Justices Deepak Gupta and Aniruddha Bose was whether succession to the property of a resident of Goa situated outside Goa in India will be governed by the Portuguese Civil Code, 1867 (Civil Code) as applicable in the State of Goa or the Indian succession Act, 1925.

The Supreme Court ruled that The Portuguese Civil Code, 1867 shall govern the rights of succession and inheritance with respect of properties of a Goan situated outside Goa, anywhere in India.

An individual named Joaquim Mariano Pereira (JMP) had three daughters. He lived in Bombay and purchased a property in Bombay in the year 1955. In the year 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 in the year 1960 when he was still alive. JMP died in 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. Goa was liberated from Portuguese rule on 19.12.1961.

In the present case, 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 whereas the case of the respondent i.e., the daughter who bequeathed the property in Bombay, is that as far as the immovable property situated outside Goa in any other part of India is concerned, it would be the Indian succession Act, 1925 which would apply.

In the present case, inventory proceedings under the Civil Code were initiated for the properties of JMP. One of his daughters, Virginia Pareira who was appointed as Cabeca De Casal (administrator) prepared the inventory of the properties including the house in Bombay. The respondent objected to the inventory on the ground that the property situated at Bombay was not governed by the inventory proceedings. Thereafter, Virginia Pareira died.

Maria Pereira, who was later appointed as an administrator filed a fresh list of properties and excluded the property at Bombay. The appellant, one of the legal representatives of Virginia Pareira filed objections to the removal of the property at Bombay from the inventory and sought the inclusion and valuation of the said property to work out what was the disposable portion and what was the legitime.

The inventory court in the year 1998 held that the property at Bombay was to be excluded from the list of assets in the inventory proceedings at Goa.

The said order of the inventory court was challenged. Thereafter, the appellant filed an appeal in the High Court of Bombay, Goa Bench.

The High Court vide the impugned judgment held that in view of the provisions of the Indian Succession Act, 1925 especially Section 5 of the Act, the Civil Code would not apply in so far as the property situated outside Goa in other parts of India are concerned. The appellants filed an appeal before the Supreme Court of India.

According to the Supreme Court, the following issues arise for determination:

• Whether the Portuguese Civil Code can be said to be a foreign law and the principles of private international law are applicable?
• Whether the property of a Goan domicile outside the territory of Goa would be governed by the Code or by Indian Succession Act or by personal laws, as applicable in the rest of the country e.g. Hindu Succession Act, 1956, Muslim Personal Law (Shariat) Application Act, 1937, etc.?
• What is the effect of the grant of probate by the Bombay High Court in respect of the Will executed by JMP?

While answering the first question, the Supreme Court noted that the President by an Ordinance and later the Parliament by an Act of Parliament decided that certain laws, as applicable to the territories of Goa, Daman and Diu prior to its conquest, would continue in the territories. It was, however, made clear that these laws would continue only until amended or repealed by competent legislature or by other competent authority. Therefore, the Portuguese law which may have had foreign origin became a part of the Indian laws, and, in substance, is an Indian law. Goa being a territory of India, all domiciles of Goa are citizens of India and the Portuguese Civil Code is applicable only on account of the Ordinance and the Act referred to above. Therefore, it is crystal clear that the Code is an Indian law and no principles of private international law are applicable to this case.

As far as the second question was concerned, the Supreme Court ruled that, as Indian citizens, under Article 19 of the Constitution, citizens of Goa 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 any other part of India, cannot be said to be living in a foreign country.

The Supreme Court held that the Portuguese law applicable to Goa is an Indian law. However, since it is a law of Portuguese origin, the Court may have to take guidance from the way in which the law has been applied to conclude what is the intention of the law. Therefore, all the properties of the person whose inheritance is in question have to be calculated and considered as one big conglomerate unit for the rules of succession to apply.

In the Apex Court’s view, the Parliament of India, after conquest of Goa, by adopting the Portuguese Civil Code accepted that the Goan domiciles were to be governed by that law in matters covered under the Code and specifically included in the laws which were made applicable. The Indian Parliament did not enforce all Portuguese laws but the laws which were applied were to apply with full force.

The Court observed that when there is a conflict between the general law and the special law then the special law shall prevail. This principle will apply with greater force to special law which is also additionally a local law. This judicial principle is based on the Latin maxim generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on the same subject.

The Supreme Court was of the view that the Portuguese Civil Code being a special Act, applicable only to the domiciles of Goa, will be applicable to the Goan domiciles in respect to all the properties wherever they be situated in India whether within Goa or outside Goa and Section 5 of the Indian Succession Act or the laws of succession would not be applicable to such Goan domiciles.

While answering the third question, the Supreme Court noted that the grant of probate has nothing to do with inheritance. The jurisdiction of a probate court is limited to decide whether the Will is genuine or not. The Will may be genuine but the grant of probate does not mean that the Will is valid even if it violates the laws of inheritance. The Court held that grant of probate by the Bombay High Court did not in any manner affect the rights of inheritance of all the legal heirs of the deceased.

Thus the Court ruled that the Portuguese Civil Code, 1867 as applicable in the State of Goa, shall govern the rights of succession and inheritance even in respect of properties of a Goan domicile situated outside Goa, anywhere in India.

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