REPORTABLE

IN THE SUPREME COURT OF INDIA  CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7378 OF 2010

JOSE PAULO COUTINHO  …APPELLANT(S)

Versus

MARIA LUIZA VALENTINA  PEREIRA & ANR.          …RESPONDENT(S)

J U D G M E N T

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.

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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to be in force until amended or repealed by the competent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

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force therein until amended or repealed by a competent Legislature or other competent authority.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

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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 Code1, a person cannot dispose of all his property by way of

Will.  There are two portions of the property – one which can be

disposed by Will, Gift, etc.   and the other which is the

indisposable portion in terms of Article 1784 of the Civil  Code

which reads as follows:­

“Legitime means the portion of the properties that the testator cannot dispose of, because it has been set apart by law for the lineal descendants or ascendants.

Sole paragraph: This portion consists of half of the properties of the testator, save as provided in Clause­2 of Article 1785 and Article 1787.”

6. Normally, if a person has children or parents, he can only

dispose of half of the property by will or gift and the remaining

property has to be allotted to his heirs whether ascendants or

descendants in the shares laid down in the Civil Code.  Where a

person has no children or  where he  leaves behind  illegitimate

1 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 meaning is the same and that has no impact on the judgment in hand.

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children or the deceased leaves behind only ascendant heirs who

are not the parents then the indisposable portion is  less than

half.   The Code provides that the estate of every person can be

divided into two parts – one which he can dispose of by

testamentary disposition and the other which he cannot dispose

of.   The second part which he cannot dispose of has to be

inherited by the heirs in the shares as laid down in the Civil Code

and this part which cannot be disposed, is called legitime.    This

legitime  is destined for the heirs in the direct ascending or

descending line.   

7. Another interesting aspect of the Civil Code is that after the

death of a person, inventory proceedings are started wherein the

entire properties (both movable and immovable) and liabilities of

the deceased are inventorised. In these proceedings normally one

of the eldest members of the family is appointed as  Cabeca de

Casal, i.e. the administrator.   The administrator  is required to

prepare an inventory of all the properties of the deceased.  Once

the properties of the deceased are  inventorised and evaluated,

these have to be shared in accordance with the shares laid down

in the Civil Code.   In case the deceased had made some

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testamentary bequests, then those bequests are to be adjusted

against that portion of the estate which was not the legitime.  As

pointed above, only half of the total property could be bequeathed

and any bequest in excess of half would not be a valid bequest.  

8. As far as the present case is concerned, inventory

proceedings under the Civil Code were initiated for the properties

of JMP.   On 27.04.1981 his daughter Virginia Pareira was

appointed as Cabeca De Casal (administrator).  She prepared the

inventory of the properties and in these proceedings the house in

Bombay which had been bequeathed in favour of the respondent

no.1 was listed at Sl.No.8.   The respondent objected to the

inventory on the ground that the property situated at Bombay

was not governed by the inventory proceedings.   Thereafter,

Virginia Pareira died.   Then respondent no.1 was appointed as

administrator.   She filed a fresh list of properties and excluded

the property at Bombay.   The appellant, who is one of the legal

representatives of Virginia Pareira filed objections to the removal

of the property  at  Bombay from the  inventory and sought  the

inclusion and valuation of the said property to work out what

was the disposable portion and what was the  legitime.   The

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inventory court vide order dated 09.03.1998 held that the

property at Bombay was to be excluded from the list of assets in

the inventory proceedings at Goa.  Thereafter, the appellant filed

an appeal in the High Court of Bombay, Goa Bench.  However, he

withdrew the appeal with liberty to file a fresh application before

the inventory court for inclusion of these assets.   He filed this

application and the inventory court on 15.10.1999 allowed the

application and  held that the property at  Bombay should be

included in the list of assets.  Respondent no.1 and her husband

(respondent no.2) challenged the said order of the inventory court

before the High Court of Bombay, Goa Bench.   This appeal was

allowed on 08.08.2008.   The High Court vide the impugned

judgment held that in view of the provisions of the Indian

Succession Act, 1925 especially Section 5 thereof, the Civil Code

would not apply in so far as the property situate outside Goa in

other parts of India are concerned.   Hence, this appeal by the

appellant.

9. At this stage, it would be pertinent to mention that in the

meantime, a similar question was referred to a Division Bench of

the Bombay High Court, Goa Bench.  The Division Bench in the

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case of A.P. Fernandes   vs.   Annette Blunt Finch and others2

came to the conclusion that the judgment of the learned Single

Judge which is impugned in the present appeal did not lay down

the correct law and that the Civil Code would apply even to the

property situate outside Goa.   

10. Shri Devadatt Kamat, learned senior counsel appearing on

behalf of the appellant, submits that though we may be sitting as

Judges of the Supreme Court of India, we will have to apply the

Portuguese Law as applicable to the domiciles of Goa.  He further

submitted that since Portuguese law is applicable, the principles

of private international law would apply.  He invoked the doctrine

of renvoi to urge that since the citizens of Goa were governed by a

foreign law, this Court would apply the foreign law to the citizens

of  Goa.  He  further  submitted  that  under the  Portuguese law

there is principle of unity of succession  of the property of a

deceased Portuguese citizen whether situated within or outside

the country, which are to be included for the purpose of

inventory proceedings.  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

2 2015 (6) Mh.L.J. 717

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the learned Single Judge does not lay down the correct law and

the judgment of the Division Bench should be approved.  He also

submitted that the grant of probate of the Will does not ipso facto

lead to the conclusion that the Will is valid.   Lastly, it is

contended that Section 5 of the Indian Succession Act has no

application to the present case.   

11. On the other hand, Shri Yashraj Singh Deora, learned

counsel for the respondent nos. 1 and 2 urges that the

Portuguese Civil Code would apply only in the territory of Goa

and would  have  no extraterritorial  application over immovable

properties situated outside the State of Goa.   He also submitted

that the property at Bombay would be governed by the provisions

of the Indian Succession Act and in terms of Section 5 thereof.

According to  him,  Article  24  of the  Civil  Code relates  only to

properties ‘situated in the kingdom’.   It is lastly submitted that

the common law principle of lex rei situs would apply in the case

of immovable properties. Therefore, the law in force at the place

where immovable property is situated should apply.   He further

submits that the Civil Code would only apply to the properties

within the State of Goa and not beyond.   Lastly, it is contended

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that the probate of the Will, wherein the petitioner had

participated, is a final adjudication determining the rights of the

parties.   

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

I. Whether the Portuguese Civil Code can be said to be a

foreign law and the principles of private international law

are applicable?

II. 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.?

III. What is the effect of the grant of probate by the Bombay

High Court in respect of the Will executed by JMP?

I. Whether the Portuguese Civil Code can be said to be a foreign law and the principles of private international law are applicable?

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13. The territories forming part of Goa, Daman and Diu were

part of the  kingdom of Portugal.   They  were  annexed  by the

Government of India by conquest on 20.12.1961 and became a

part of India by virtue of Article 1(3)(c) of the Constitution.  After

acquisition by conquest, these territories became part and parcel

of India, that is  Bharat.   As pointed out earlier, for making

provision for administration of the said territories, the President

of India, exercising powers vested in him under Article 123(1) of

the Constitution on 05.03.1962 promulgated an Ordinance called

the Goa, Daman and Diu (Administration) Ordinance, 1962.  This

Ordinance was replaced by an Act of Indian Parliament known as

The Goa, Daman and Diu (Administration) Act, 1962, which

came into effect from 05.03.1962.   On the same day, the

Constitution was amended by the Constitution (12th Amendment)

Act, 1962 whereby Goa, Daman and Diu were added as Entry 5

in Part II of the First Schedule 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.  Thus, it is more

than apparent that Goa, Daman and Diu became an integral part

of India as a Union Territory of India with effect from the date of

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its annexation by conquest.   Goa became a full­fledged State in

1987.

14. The Civil Code may be a Code of Portuguese origin but after

conquest  and  annexation  of  Goa,  Daman and  Diu, this  Code

became applicable to the domiciles of Goa only by virtue of the

Ordinance and thereafter, by the Act.   Therefore, the Civil Code

has  been enforced in  Goa,  Daman and  Diu by  an  Act of the

Indian Parliament and thus, becomes an Indian law.  This issue

is no longer res integra.   

15. A  Constitution  Bench of this  Court in  Pema Chibar  vs.

Union of India & Ors.3,  was dealing with a case wherein the

petitioner had obtained licences for import of goods of the value

of more than one million pounds.  Though the orders for import

of the goods to Goa were placed before 20.12.1961, the goods did

not reach Goa by the said date.  Thereafter, the petitioner applied

for renewal of the licences and claimed that the Indian

Government was bound by  the  licences granted by  the  earlier

rulers.   This Court held that once a property is taken over by

conquest, the new sovereign (namely, the Government of India)

3 AIR 1966 SC 442

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would not be bound by the acts of the old sovereign except where

it recognised such rights.   Reliance was placed by the petitioner

on the Ordinance and the Act, referred to above.   Rejecting the

contention, this Court held as follows:

“8. But this is not all.  The Ordinance and the Act of 1962 on which the petitioner relies came into force from March 5, 1962. It is true that they provided for the continuance of old laws but that could only be from the date from which they came into force, i.e., from March 5, 1962.   There was a period between December 20, 1961 and March 5, 1962 during which it cannot be said that the old laws necessarily continued so far as the rights and  liabilities between the new subjects and the new sovereign were concerned.  So far as such rights and liabilities are concerned, (we say nothing here as to the rights and liabilities between subjects and subjects under the old laws), the old laws were apparently not in force during this interregnum.  That is why we find in S. 7 (1) of the Ordinance, a provision to  the effect that  all things done and all  action taken (including any acts of executive authority, proceedings, decrees and sentences) in or with respect to Goa, Daman and Diu on or after the appointed day and before the commencement of this Ordinance, by the Administrator or any other officer of Government, whether civil or military or by any other person acting under the orders of the Administrator or such officer, which have been done or taken in good faith and in a reasonable belief that they were necessary for the peace and good Government of  Goa, Daman and Diu, shall  be as valid and operative as if they had been done or taken in accordance with law.  Similarly, we have a provision in S. 9(1) of the Act, which is in exactly the same terms.   These provisions in our opinion show that as between the subjects and the new sovereign, the old laws did not continue during this interregnum and that is why things done and action taken by various authorities during this period were validated as if they had been done or taken in accordance with law.  A doubt was raised as to the power of the Military Governor to issue a proclamation like the one he did on December 30, 1961, to which we have already referred.  That doubt in our opinion is cleared by these provisions which make all such orders as if they had been made in accordance with law.   The proclamation of December 30, 1961 which clearly showed what kind of import licences would be recognised must be held

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to be in accordance with law and that means that no imports were recognised except those covered by the proclamation.”

We are aware that the Court did not say anything with regard to

the rights and liabilities between subjects and subjects under the

old laws and kept that question open.   We shall deal with this

aspect later.   16. A three­Judge Bench of this Court in  Vinodkumar

Shantilal Gosalia  vs.  Gangadhar Narsingdas Agarwal4  was

dealing  with the  question as to  whether the respondent  no.1

before it had acquired the right to obtain a mining lease from the

Portuguese Government, and, if so, whether after the annexation

of Goa, the Government of India recognised that right and,

therefore, was bound to grant a mining lease to respondent no. 1

in terms of the application made by him to the Government of

Portugal.  The Court made the following pertinent observations:

“17. …it is necessary to reiterate a well­settled legal position that when a new territory is acquired in any manner­be it by conquest,  annexation or cession  following upon a treaty­the new “sovereign” is not bound by the rights which the residents of the conquered territory had against their sovereign or by the obligations of the  old sovereign towards  his subjects.   The rights of the residents of a territory against their state or sovereign come to an end with the conquest,  annexation or cession of that territory and do not pass on to the new environment.   The inhabitants of the acquired territory bring with them no rights which they can enforce against the new state of which they become inhabitants.  The new state is not required, by any positive assertion or declaration, to repudiate

4 (1981) 4 SCC 226

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its obligation by disowning such rights.   The new state may recognise the old rights  by re­granting them which, in the majority of cases, would be a matter of contract or of execution action; or, alternatively, the recognition of old rights may be made  by an  appropriate statutory  provision  whereby rights which were in force immediately before an appointed date are saved...”

Analysing the judgment of the Constitution Bench in  Pema

Chibar case (supra), it was held as follows:  

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

Thereafter, the Court finally held that in cases of acquisition of

territory by conquest, the rights which had accrued under the old

laws  do  not survive and cannot  be enforced  against the  new

Government unless it chooses to recognise that right.   The

relevant portion of the judgment reads as follows:

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“29. The true position then is that in cases of acquisition of a territory by conquest, rights which had accrued under the old laws do not survive and cannot be enforced against the new Government unless it chooses to recognise those rights. In order to recognise the old rights, it is not necessary for the new Government to continue the old laws under which those rights had accrued because, old rights can be recognised without continuing the old laws as, for example, by contract or executive action.   On the one hand, old rights can be recognised by the new Government without continuing the old laws; on the other, the mere continuance of old laws does not imply the recognition of old rights which had accrued under those laws.  Something more than the continuance of old laws is necessary in order to support the claim that old rights have been recognised  by the  new Government.  That ‘something more’  can be  found  in a statutory provision whereby rights which had already accrued under the old laws are saved.  In so far as continuance of old laws is concerned, as a general rule, they continue in operation after  the conquest, which means that the new Government is at liberty not to adopt them at all or to adopt them without a break in their continuity or else to adopt them from a date subsequent to the date of conquest.”

17. It is important to note that this Court held that in so far as

the continuance of old laws is concerned, the new sovereign is

not bound to follow the old laws.  It is at liberty to adopt the old

laws wholly or  in part.   It  may totally  reject the old  laws and

replace them with laws which apply in the other territories of the

new sovereign.  It is for the new sovereign to decide what action it

would take with regard to the application of laws and from which

date which law is to apply.   As far as the present case is

concerned, firstly the President by an Ordinance and later

Parliament by an Act of Parliament decided that certain laws, as

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applicable to the territories of Goa, Daman and Diu prior to its

conquest, which may be referred to as the erstwhile Portuguese

laws, would continue in the territories.   It was, however, made

clear that these laws would continue only until amended or

repealed by competent legislature or by other competent

authority.   

18. We are clearly of the view that these laws would not have

been applicable unless recognised by the Indian Government and

the Portuguese Civil Code continued to apply in Goa only

because  of an  Act of the  Parliament  of India.  Therefore, the

Portuguese law which may have had foreign origin became a part

of the Indian laws, and, in sum and substance, is an Indian law.

It is  no longer  a foreign  law.  Goa is  a territory  of India; all

domiciles of Goa are citizens of India; the Portuguese Civil Code

is applicable only on account of the Ordinance and the Act

referred to above.  Therefore, it is crystal clear that the Code is an

Indian law and  no principles of private international law are

applicable to this case.   We answer question number one

accordingly.   

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19. Once we come to this conclusion, the answer to the second

question becomes very simple.

II. 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.?

20. It is interesting to note that whereas the  founders of the

Constitution in Article 44 in Part IV dealing with the Directive

Principles of State Policy had hoped and expected that the State

shall endeavour to secure for the citizens a Uniform Civil Code

throughout the territories of India, till date no action has been

taken in this regard.   Though Hindu laws were codified in the

year 1956, there has been no attempt to frame a Uniform Civil

Code applicable to all citizens of the country despite exhortations

of this Court in the case of Mohd. Ahmed Khan vs. Shah Bano5

and Sarla Mudgal & Ors. vs. Union of India & Ors.6  

21. However, Goa is a shining example of an Indian State which

has a uniform civil code applicable to all, regardless of religion

except while protecting certain limited rights.   It would also not

5 (1985) 2 SCC 556 6 (1995) 3 SCC 635

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be out of place to mention that with effect from 22.12.2016

certain portions of the Portuguese Civil Code have been repealed

and replaced by the Goa Succession, Special Notaries and

Inventory Proceedings Act, 2012 which, by and large, is in line

with the Portuguese Civil Code.  The salient features with regard

to family properties are that a married couple jointly holds the

ownership of all the assets owned before marriage or acquired

after  marriage  by each spouse.  Therefore, in  case  of  divorce,

each spouse  is  entitled to  half  share  of the  assets.  The  law,

however, permits pre­nuptial agreements which may have a

different system of division of assets.  Another important aspect,

as pointed out earlier, is that at least 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 the self­acquired

properties. Muslim men whose marriages are registered in Goa

cannot practice polygamy.   Further, even for followers of Islam

there is no provision for       verbal divorce.   

22. It is in this context that we shall have to decide whether the

property of late JMP situated in Bombay i.e.  outside the territory

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of Goa would be governed by the Code or by the Indian

Succession Act.   As pointed out earlier, this is not a conflict of

international law.   The Indian Parliament has made the earlier

Portuguese Civil Code applicable in the State of Goa.  It is in this

light that we shall now read Article 24 on which great reliance

has been placed by the learned Single Judge in the impugned

judgment.  This Article reads as follows:

“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, in respect of the acts which will produce effects therein.   However, the external form of the  acts  shall  be  governed by the law of the  country, where they were celebrated, except in cases where there is provision to the contrary.”

In our view, this article has no applicability to the facts of the

present case.   When a law is adopted or applied in a new

situation, it  has to be read  in that  context.  We have to read

Article 24 in context of the annexation of the territories of Goa by

conquest and their becoming an inherent part of India.  There are

no Goan citizens; there can be domiciles of Goa but all are

citizens  of India.  As Indian  citizens,  under  Article  19  of the

Constitution, they are free to move to any part of the country,

reside there and buy property subject to the local laws and

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limitations.  Therefore,  a  domicile  of  Goa,  who starts  living  in

Bombay or in any other part of India, cannot be said to be

Portuguese by any stretch of imagination and he cannot be said

to be living in a foreign country.   Indian citizens living in India

cannot, by any stretch of imagination, 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.  Therefore, Article 24,

in our opinion, has no applicability.  

23. This brings us to the issue as to what will be the law which

would  be  applicable.  The  parties  are  ad  idem  that the  Code

applies.   We shall  now refer to certain provisions of the Code.

Article 1737 of the Code reads as follows:

 “The inheritance comprises of all the properties, rights and obligations of the deceased, which are not merely personal or excluded by disposition of the said deceased, or by the law.”    

A bare reading of Article 1737 clearly indicates that the

inheritance of a deceased comprises of all the assets, rights and

liabilities of the deceased.  The only exclusion, is totally personal

assets or those excluded by the disposition of the said deceased

or by law.

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24. Article 1766 provides that a married person shall not on the

penalty of nullity dispose of certain and specific properties of the

couple except if the said properties have been allotted to the said

person.  The article reads as follows:

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

The basis of this article is that both spouses are equal owners of

the entire property of the couple – acquired before or after

marriage.  Therefore, the disposition of some part of the property

without the consent of the other spouse can be termed a nullity.

We are referring to this Article only to highlight the fact that in

case the Civil Code is to apply this would also be a factor to be

taken into consideration because can it be said that this article

will only apply to the properties within the territory of 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 of the portion which the law permits them to dispose of.”

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A domicile under his personal law is obliged to reserve a legitime

which 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 by taking into consideration only the

immovable properties in Goa or by taking all the properties of the

deceased into consideration?   Once we have come to the

conclusion that the Civil Code is an Indian law and the domiciles

of Goa, for all intent and purposes, are Indian citizens, would it

be prudent to hold that the Civil Code, in matters of succession,

would  apply only in respect to properties situated  within the

territories of Goa?  We do not think so.   

26. Succession is governed normally by the personal laws and

where there is a uniform civil code, as in Goa, by the Civil Code.

Once Article 24 is not to be taken into consideration then it is but

obvious that  all the  properties  whether  within  Goa or  outside

Goa, must be governed by the Civil Code of Goa.   If we were to

hold otherwise, the consequences could be disastrous, to say the

least.   There would be no certainty of succession.   It would be

virtually impossible to determine the  legitime  which is an

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inherent part of the law of succession.  The rights of the spouses

to have 50% of the property could easily be defeated by buying

properties outside the State of Goa.  In the case of a Hindu Goan

domicile it would lead to further complications because if we were

to accept the judgment of the learned Single Judge and the

arguments of the respondents, for the properties in Goa, the Civil

Code would apply but for the properties outside the territory of

Goa, the Hindu Succession Act will apply.  Similarly, for Muslims

within the State of Goa, Civil Code would apply and outside Goa,

the Muslim Personal Law (Shariat) Application Act, 1937 would

apply.   This would lead to many uncalled for disputes and total

uncertainty with regard to succession.   

27. There must be unity in succession.   The Portuguese law is

based on the Roman law concept of  hereditas  i.e. inheritance to

the  entire legal  position  of  a  deceased  man.  This  concept  of

universal succession is described in the Comparative Analysis of

Civil Law Succession,7 as under:

“18. In Comparative Analysis of Civil Law Succession, Villanova Law Review Vol 11 Issue 2, the concept of ‘universal succession’ and ‘hereditas’ has been described as

7 Comparative Analysis of Civil Law Succession, Villanova Law Review Vol. 11, Issue 2

24

“ … succession by an individual to the entirety of the estate, which includes all the rights and duties of the decedent (de cujus), known collectively as the hereditas under Roman law.  The succession to the whole of the estate could be by one heir (heres) or several (heredes), they taking jointly regardless  of whether the succession was testate or intestate. The estate (hereditas), which passed in Roman succession was the sum of all the rights and duties of the deceased person (persona) except for his political, social and family rights  which  were  not considered inheritable.  Transfer of title to the heirs was deemed to occur simultaneously with the individual’s  death and was a complete  transfer  of title at that time.”

Though we have held that this is Indian law, since it is a law of

Portuguese origin, we may have to take guidance from the way in

which the law has been applied to come to the conclusion to see

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 and then the rules

of succession will apply.   

28. There is a conflict between the Indian Succession Act, the

Hindu Succession Act, the Muslim Personal Law (Shariat)

Application Act, 1937, etc. and the Portuguese Civil Code with

regard to the laws of inheritance but this conflict has to be

resolved.   In our view, the Parliament of India, after conquest of

Goa,  by adopting  the Portuguese Civil  Code accepted that the

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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

make applicable  all  Portuguese laws but the laws  which were

applied would apply with full force.   The Goa, Daman and Diu

(Administration) Act, 1962 is a special law dealing with the

domiciles of Goa alone.  This special law making the Portuguese

Civil Code applicable is an exception carved out of the general

laws of succession namely Indian Succession Act, Hindu

Succession Act, 1956, Muslim Personal Law (Shariat) Application

Act, 1937 and other laws.  

29. It is a well settled principle of statutory interpretation that

when there is a conflict between the general law and the special

law then the special law shall prevail.   This principle will apply

with greater force to special law which is also additionally a local

law.  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.

Reference  may be  made  to the  decision of this  Court in  R.S.

Raghunath vs. State of Karnataka & Ors.8, Commercial Tax

8 (1992) 1 SCC 335

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Officer, Rajasthan vs. Binani Cements Ltd. & Ors.9 and Atma

Ram Properties Pvt. Ltd.  vs.  The Oriental Insurance Co.

Ltd.10

30. As far as Goa is concerned, there is a specific judgment in

this regard i.e. Justiniano Augusto De Piedade Barreto & Ors.

vs. Antonio Vicente Da Fonseca & Ors.,11 though relating to the

interpretation of Section 29 of the Limitation Act, 1963, which

deals with local and special laws.   Dealing with the issue of the

Portuguese Civil Code, the Court held that it could not escape

from reaching the conclusion that the Portuguese Civil Code is a

local law within the ambit of Section 29(2) of the Limitation Act,

1963.  A special law is a law relating to a particular subject while

a local law is a law confined to a particular area or territory.  In

our  considered  view, the  Portuguese  Civil  Code, in  matters  of

succession, is both a special law and a local law.  It is special and

local because it deals with laws of succession for the domiciles of

Goa only.  In Para 14 of this judgment, the Court held as follows:

“14. We, therefore, arrive at the conclusion that the body of provisions in the Portuguese Civil Code dealing with the

9 (2014) 8 SCC 319 10(2018) 2 SCC 27  11 (1979) 3 SCC 47

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subject of Limitation of suits etc. and in force in the Union Territory of Goa, Daman and Diu only is 'local law' within the meaning of Section 29(2) of the Limitation Act, 1963. As stated earlier these provisions have to be read into the Limitation Act, 1963,  as if the  Schedule to the  Limitation  Act is  amended mutatis mutandis. No question of repugnancy arises. We agree with the Judicial Commissioner that the provisions of the Portuguese Civil Code relating to Limitation continue to be in force in the Union Territory of Goa, Daman and Diu.”

31. In view of the aforesaid, we are clearly 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.  

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

32. We shall now deal with the issue “what is the effect of the

grant of  probate of the Will  of late  JMP by the High Court  of

Bombay?”   At  the outset,  we may say  that  the order granting

probate has not been produced by any side though it is admitted

by all sides that probate was granted and the appellants herein

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had notice of the probate case.  Assuming that probate had been

granted, what is the effect of the grant of probate on the laws of

inheritance?   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.   To give an

example, supposing a Hindu bequeathes his ancestral property

by a Will and probate of the Will is granted, such grant of probate

cannot adversely affect the rights of those members of the

coparcenary who had a right in the property since birth.  Similar

is the case in Goa.  The legitime is the right of the heirs by birth.

When both the spouses are alive, they own half of the property.

Mere grant of probate will not mean that the husband can Will

away more than half of the property even if that be in his name.   

33. This Court in  Krishna Kumar Birla vs. Rajendra Singh

Lodha12 held as under:

“57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to be

12  (2008) 4 SCC 300

29

filed, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate)  proceedings.  Construction of  a  will relating  to the right, title and interest of any other person is beyond the domain of the Probate Court.”

In view of the clear­cut exposition of law in the aforesaid case,

we hold 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.

34. In view of the  above  discussion,  we answer the  question

framed in Paragraph 1, holding that it will be the Portuguese Civil

Code, 1867 as applicable in the State of Goa, which shall govern

the rights of succession and inheritance even in respect of

properties  of  a  Goan domicile  situated  outside  Goa,  anywhere

in India.

35. In view of the  above,  we are clearly  of the view that the

impugned judgment has to be set aside and the property of late

JMP at Bombay is to be included in the inventory of properties in

the inventory  proceedings in  Goa  for  all intent  and purposes.

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Hence, we allow the appeal, set aside the judgment of the learned

Single Judge dated 08.08.2002 and restore the order of the Court

of Comarca Judge of Salcete and Quepem, at Margao in Inventory

Proceedings No.20436 dated 15.10.1999.  Pending application(s),

if any, stand(s) disposed of.   

…………………………J. (Deepak Gupta)

…………………………J. (Aniruddha Bose)

New Delhi September 13, 2019  

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