REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2961__OF 2019 (Arising from SLP (C) No. 15949/2016)

UMA MAHESH BANDEKAR AND ANOTHER ..APPELLANTS

VERSUS

VIVEK SADANAND MARATHE AND OTHERS ..RESPPONDENTS

J U D G M E N T

M.R. SHAH, J.

Leave granted.

2. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 05.05.2016 passed by the High Court

of Judicature at Bombay, Bench at Goa in Appeal from Order No.

39/2015, by which the High Court has dismissed the said Appeal

from Order and has confirmed the order dated 02.06.2015

passed by the learned IIIrd Additional Adhoc Senior Civil Judge,

Margao in the Inventory Proceedings by the original Inventariante

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and other parties, the original appellants before the High Court

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 Anant Kesarkar” at Margao.  That appellant no.1 and

respondent nos. 1 & 3 herein are the sisters and brother.   The

parents of the parties (appellant no.1 and respondent nos. 1 & 3

herein),  namely,  Late  Sadanand V.  Marathe and his  wife  Late

Nirmalabai S. Marathe succeeded to the lease premises in terms

of Deed of Partition dated 29.03.1976, registered in the office of

the Sub­Registrar of Salcete at Margao, Goa.  The said premises

was of a partnership firm in the name and style “Ramnath Anant

Kesarkar” having business carried out in the tenanted premises

belonging to  one  Jairam Vasant  Katkar  at  Margao.  That the

father Sadanand V. Marathe died on 12.05.1985. That the

mother Niarmalabai S. Marathe died on 05.05.1998.   Thus, the

parents of the parties i.e., Late Sadanand V. Marathe and his wife

Late  Niarmalabai S.  Marathe since deceased passed away on

12.05.1985 and 05.05.1998 respectively.   That after the demise

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of the parents, respondent no.1 – brother of appellant no.1 and

son of Late Sadanand V.Marathe and Late Nirmalabai S. Marathe

filed   Regular Inventory Proceedings No.11/2013/C dated

08.11.2013.   That the Court appointed respondent no.1 as the

head of the family/Cabeca de Casal to administer the estate left

by the deceased,  during the pendency of the said proceedings

and also appointed a court valuer for valuing and determining

the extent of properties stated in the inventory proceedings.  The

valuer appointed by the court submitted its report to the court on

30.04.2014.   The appellants herein filed objections to the

valuation report, inter alia,  pointing out that there are certain

infirmities regarding the enlisted plots, survey nos. and also

ambiguous narration of the area and the amended list of assets.

As a result of the said objections, respondent no.1 filed a revised

list of assets in the inventory proceedings on 16.10.2014.   The

appellants herein filed their objections/reply to the revised list of

assets.  The main objection on behalf of the appellants was non­

inclusion of the ‘lease premises’ in the inventory proceedings/list

of assets.   Respondent no.1 filed reply to the objections of the

appellants.   It was submitted on behalf of respondent no.1 that

the partnership firm  does  not form  part of the estate of the

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deceased as married daughters are not entitled to the tenanted

premises.

3.1 That by order dated 02.06.2015, the learned Civil

Judge at Margao (hereinafter referred to as the ‘Inventory Court’)

dismissed the objections of the appellants for correcting the area

of the said property and also denied enlisting of the said tenanted

premises to the estate of the deceased.   

3.2 Aggrieved with the order passed by the learned

Inventory Court dated 02.06.2015, the appellants filed an appeal

before the  High Court  being  Appeal from Order  No.  39/2015.

That by the  impugned  judgment and order,  the High Court of

Bombay at Goa has dismissed the appeal preferred by the

appellants.   From the impugned judgment and order passed by

the High Court, it appears that the High Court has mainly relied

upon Section 2(o)  of the  Goa Daman & Diu Buildings (Lease,

Rent and Eviction) Control Act, 1968 (hereinafter referred to as

the ‘Goa Rent Act’), and relying upon the aforesaid provision of

the  Goa  Rent  Act, the  High  Court  has  held that the  married

daughter would not qualify as a tenant in terms of the Goa Rent

Act.   The High Court also examined and considered Decree No.

43525 of the Portuguese Civil Code and observed and held that in

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view of Section 59 of the Goa Rent Act and the repeal provision,

Decree No. 43525 of Portuguese Civil Code shall stand repealed

and the parties shall be governed by the provisions of the Goa

Rent Act only.   

3.3 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court and dismissing the

Appeal from Order and confirming the order passed by the

learned Inventory Court holding that being a married daughter,

appellant no.1 has no right in the “lease premises” and therefore

the same cannot be subjected to the inventory proceedings, the

appellants ­original petitioners – objectors have preferred the

present appeal.

3.4 This Court issued notice in the special leave petition

vide order dated 08.07.2016.   That during the pendency of the

present  appeal, the Inventory  Court  has  pronounced the final

order and has drawn the final chart of partition in Regular

Inventory Proceeding No.11/2013/C vide final order dated

31.07.2017, excluding the "lease premises” which is the subject

matter of present appeal.

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4. Ms.  Binu Tamta, learned advocate  has  appeared on

behalf of the appellants and Ms. A. Subhashini, learned advocate

has appeared on behalf of the respondents.

4.1 Ms. Binu Tamta, learned advocate appearing on behalf

of the appellants has vehemently submitted that both, the

learned Inventory Court as well as the High Court have materially

erred in not considering the right of a married daughter, vis a vis,

the Goa Succession, Special Notaries and Inventory Proceeding

Act, 2012 (hereinafter referred to as the ‘Inventory Proceeding Act

2012’).

4.2 It is vehemently submitted by the learned counsel

appearing on behalf of the appellants that both, the learned

Inventory Court as well as the High Court have materially erred

in considering the provisions of the Goa Rent Act and not at all

considering the right of succession of the married daughters as

per the Inventory Proceeding Act, 2012.

4.3 It is vehemently submitted by the learned counsel

appearing on behalf of the appellants that so far as the

succession in the inventory proceedings is concerned, the parties

are governed by the Inventory Proceeding Act, 2012.

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4.4 Ms. Binu Tamta, learned advocate appearing on behalf

of the appellants has taken us to the relevant provisions of the

Inventory  Proceeding  Act,  2012 and  relying  upon  the relevant

provisions of the Inventory Proceeding Act, 2012, more

particularly Sections 3, 5, 9, 68 of the said Act, has submitted

that under the provisions of the Inventory Proceeding Act, 2012,

there is no distinction/classification between daughter married or

unmarried & son.   It is submitted by Ms. Binu Tamta, learned

counsel on behalf of the appellants that Section 399 provides for

list of assets, movable & immovable assets including mortgages,

easements, lease and others encumbrances.

4.5 It is further submitted by the learned counsel

appearing on behalf of the appellants that definition of  ‘tenant’

under the Goa Rent Act shall not be applicable in the case of Law

of Succession.   It is submitted that in the present case the

proceedings were not initiated under the Goa Rent Act and the

dispute was not between the landlord and the tenant, and

therefore, the provisions of the Goa Rent Act shall not be

applicable at all.   It is submitted that therefore both the courts

below have materially erred in non­suiting the appellants relying

upon and/or considering the provisions of Goa Rent Act.   It is

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submitted that both the courts below have not properly

appreciated the fact that the proceedings were/are inventory

proceedings for the purpose of  inheritance of  the estate of the

deceased and therefore the provisions of the Inventory Proceeding

Act, 2012 only shall be applicable and are required to be

considered.

4.6 It is vehemently submitted by the learned counsel

appearing on behalf of the appellants that if the rights of

appellant  no.1  being  a  married  daughter  are  considered  vis  a

vis/considering the Inventory Proceeding Act, 2012, in that case,

appellant  no.1 being a married daughter shall  have a right  of

succession with respect to “lease premises”, considering Sections

3,5,9,68 and 399 of the Inventory Proceeding Act, 2012.

4.7 Making the above submissions, it is vehemently

submitted by the learned counsel appearing on  behalf of the

appellants that both the courts below have materially erred in

excluding the “lease premises” from the list of assets in the

inventory proceedings and have materially erred in observing and

holding that  appellant  no.1  being  a  married  daughter  has  no

right of  succession in the “lease premises”.  Making the above

submissions, 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

appearing on behalf of the respondents that in view of the

subsequent development and passing the final order by the

Inventory Court and drawing the final chart of partition in

Regular  Inventory Proceeding No.  11/2013/C, which has been

signed and accepted even by the appellants, the present appeal

has become infructuous.   It is vehemently submitted by the

learned counsel appearing on behalf of the respondents that in

the final order and/or the final chart of partition in  Regular

Inventory Proceeding No. 11/2013/C, the “lease premises” has

not been included and the said order has been accepted by the

appellants, the present appeal has become infructuous.

5.2 It is vehemently submitted by the learned counsel

appearing on behalf of the respondents that even on merits also,

both the courts below have rightly held that appellant no.1 being

a  married daughter has no right of succession in the “lease

premises” in view  of  Section  2(o) of the  Goa  Rent  Act.   It is

submitted that considering the provisions of Section 2(o) of the

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Goa Rent Act, a married daughter has no right in the

tenanted/lease premises.

5.3 It is vehemently submitted by the learned counsel

appearing on behalf of the respondents that right of a married

daughter in the “lease  premises”  has  been considered  by this

Court in the case of  Mohammad Laiquiddin vs. Kamala  Devi

Misra (Dead) by Lrs., (2010) 2 SCC 407.   It is submitted that in

the  aforesaid  case, this  Court  has  also  considered Decree No.

43525 under the Portuguese Civil Code and also Section 59 of

the Goa Rent Act, which relates to the repeal and savings clause.

It is submitted that as held by this Court in the aforesaid

decision as from the date on which the Goa Rent Act has brought

into force in any local area, the provisions of Decree No. 43525

dated  7th  March,  1961  and the Legislative  Diploma  No.  1409

dated 14.02.1952 and the corresponding provisions of any other

law for the time being in force shall stand repealed in that area.

It is submitted that in the present case, as such, the appellants

heavily relied  upon  Decree  No. 43525 dated 7.3.1961.   It is

submitted that however in view of Section 59 of the Goa Rent Act,

the provisions of Decree No. 43525 dated 7.3.1961 stand

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repealed, the appellants cannot claim any right on the basis of

the provisions of Decree No. 43525 dated 7.3.1961.

5.4 It is vehemently submitted by the learned counsel

appearing on behalf of the respondents that as per Section 2(o) of

the Goa Rent  Act,  a  married daughter  would not  qualify  as a

tenant  and  therefore  being  a  married  daughter  appellant  no.1

cannot  claim any right in the tenanted/lease  premises.   It is

submitted that the special law override the general law and the

Goa Rent Act being a special law which makes special provision

for any inheritance upon the death of the tenant and the tenancy

created by the Special Statute would be construed as a statutory

tenant, the statutory tenancy making no provision for

inheritance, confers  no right on  any legal  heir.   It is further

submitted that consequent upon the enforcement of the Goa Rent

Act, not only Decree No. 43525 dated 7.3.1961 came to be

repealed (in view of Section 59 of the Goa Rent Act), but also “the

corresponding provision of any other  law for the time being in

force”,  which  would  mean that the general law  of succession

contained in the Portuguese Civil Code, 1867, would

automatically stand repealed upon the enforcement of the Goa

Rent Act insofar as building tenancies are concerned.   It is

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submitted that therefore reliance placed upon Section 399 of the

Inventory Proceeding Act, 2012 is misplaced.  It is submitted that

even Section 460 of the Inventory Proceeding Act, 2012 has no

application in the present case.

5.5 Making the above submissions, it is vehemently

submitted by  the learned advocate appearing on behalf  of the

respondents that the Inventory Court as well as the High Court

have rightly held that appellant no.1 being a married daughter

has no right in the “lease premises”, and therefore, the same is

rightly excluded from the list of assets in the inventory

proceedings.

5.6 Making the above submissions, it is prayed to dismiss

the present appeal.

6. We have heard learned counsel for the respective

parties at length.

6.1 The short  question which  is  posed  for  consideration

before this Court is, right of a  married daughter by  way of

succession in the “lease premises” and whether with respect to

“lease premises”, a married daughter shall have a right of

succession, vis a vis, Inventory Proceeding Act, 2012 or not?

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6.2 While considering the aforesaid question/issue, the

relevant  provisions of the Inventory  Proceeding  Act, 2012  are

required to be referred to and considered.

6.3 The  Goa Succession,  Special  Notaries  and  Inventory

Proceeding Act, 2012 has been enacted to consolidate and amend

the  law of intestate  and testamentary succession,  notarial law

and the laws relating to partition of an inheritance and matters

connected therewith.   It  has come into force  with  effect from

19.09.2016.   Further, the Inventory Proceeding Act, 2012 shall

be applicable with respect to pending proceedings also, in view of

Section 460 of the Inventory Proceeding Act, 2012.  Section 3 of

the Inventory Proceeding Act, 2012 defines succession.   As per

Section 3 of the Act, succession is the transmission of the estate

of a  deceased  person in favour of  his successors.   It further

provides that a successor is the person who is called to succeed

to the juridical relations of the deceased person and upon whom

the  assets and liabilities  devolve.  Section  5 of the Inventory

Proceeding Act, 2012 provides for the types of successors; heirs

and legatees.   As per the said provision, heir is the person who

inherits  or  succeeds  to the totality  of the  estate  of the  estate

leaver  or  to an undefined share thereof  without specifying the

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assets constituting it, while a legatee is the one who succeeds to

specific and determined assets.  As per Section 9 of the Inventory

Proceeding  Act,  2012,  all  persons,  besides the  State,  who  are

born or conceived at the time of the opening of the succession are

competent to succeed, unless the law provides otherwise. Section

10 of the Inventory Proceeding Act, 2012 provides for

incompetence to succeed by reason of unworthiness to succeed.

It provides for the persons who shall be unworthy to succeed the

estate leaver and are consequently incompetent to be the

successors (it does not include the married daughter).  Section 52

of the Inventory Proceeding Act, 2012 provides for order of legal

succession.  It provides inter alia that the legal succession shall

devolve in the order as mention in Section 52 and it first devolve

on the descendants.  Section 68 of the Inventory Proceeding Act,

2012 provides for succession of children and their descendants

and it specifically provides that the children and their

descendants succeed to their respective parents and other

ascendants, without  distinction of sex or age.   Section 399 of

the Inventory Proceeding  Act, 2012  provides for initial list of

assets and it  includes movables and livestock, the immovables

including mortgages, easements, leases and other encumbrances

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thereon and lastly depts due by the estate.   Section 446 of the

Inventory Proceeding Act, 2012 permits amendment of partition.

It provides that the partition may be amended, even after it has

become final and no appeal has been preferred, in the very same

inventory proceedings by agreement of the parties or their

representatives, where there is a mistake of facts in the list of

assets or  in the classification of the assets or any other error

which vitiates the will of the parties.  Section 460 of the Inventory

Proceeding Act, 2012 provides that on and from the date of

coming into force the Inventory Proceeding Act, 2012, all

provisions of the laws in force at present corresponding to any of

the provisions of the Inventory Proceeding Act, 2012 shall stand

repealed.  However, sub­section 3 of Section 460 of the Inventory

Proceeding Act, 2012 provides that “all proceedings pending

under the repealed laws before any court in the State or Goa, as

on the date of the coming into force of the Inventory Proceeding

Act, 2012, shall be continued in terms of the procedure provided

in the Inventory Proceeding Act, 2012. The Inventory Proceeding

Act, 2012 provides for the proceedings/inventory proceedings to

partition the inheritance of a  deceased  person  or to obtain  a

formal order of allotment of inheritance by the Court.   A person

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who initiates the inventory proceedings has to submit the list of

assets to be partitioned.

7. In the present case, respondent no.1 ­ brother of

appellant no.1 initiated/filed the inventory proceedings before the

Inventory Court with the list of assets which did not include the

“lease premises”.   According to respondent no.1 the “lease

premises”  was not included  in  the list  of  assets  as  the “lease

premises” is not inheritable and that appellant no.1 being a

married daughter has no right of succession in the

tenanted/lease premises.   Appellant no.1 herein raised an

objection against non­inclusion of the “lease premises” in the list

of assets submitted in the inventory proceedings.   The objection

came to be overruled by the learned Inventory Court which has

been confirmed by the High Court by  the  impugned  judgment

and order on the ground that considering Section 2(o) of the Goa

Rent Act, a married daughter has no right in the “lease premises”

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 the

respective parties and considering the relevant provisions of the

Inventory Proceeding Act,  2012 and  the  provisions of the  Goa

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Rent Act, for the reasons hereinbelow, we are of the opinion that

both, the learned Inventory Court as well as the High Court have

committed a grave error in relying upon the provisions of the Goa

Rent Act, while considering the right of succession of a married

daughter in the “lease premises” vis a vis and/or under the

Inventory Proceeding Act, 2012.

9. At the outset, it is required to be noted that the

proceedings before the inventory court as well as the High Court

were under the provisions of the Inventory Proceeding Act, 2012/

Portuguese Civil Code, which shall be continued on enactment of

the Inventory Proceeding Act, 2012, as if those proceedings

were/are initiated under the Inventory Proceeding Act, 2012 (in

view of Section 460 of the Inventory Proceeding Act, 2012).  It is

required to be noted that the proceedings before the inventory

court and the High Court were not at all with respect to Goa Rent

Act.  The  proceedings  were  not  between  the landlord and  the

tenant.  The provisions of Goa Rent Act shall be applicable with

respect to dispute between the landlord and the tenant.   As per

the preamble of the 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 under the provisions of the Goa Rent

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Act nor between the landlord and the tenant and therefore both,

the inventory court as  well as the  High  Court  have erred in

considering the provisions of the Goa Rent Act, more particularly

Section 2(o) of the Goa Rent Act.   The only question which was

before the inventory court and the High Court was in respect of

the rights of succession of a  married daughter in the “lease

premises” under the provisions of the Portuguese Civil Code and

subsequently under the provisions of the  Inventory Proceeding

Act, 2012.   Therefore, what is required to be considered is

whether under the provisions of the Portuguese Civil Code and on

enactment of Inventory Proceeding Act, 2012, whether the

married daughter would have a right of succession in the “lease

premises” or not?   

10. Considering the relevant  provisions  of the Inventory

Proceeding Act,  2012, referred to hereinabove,  first of  all, it is

required to be noted that so far as rights of successor, i.e., heirs

and legatees, as provided under Section 5 of the Inventory

Proceeding Act, 2012, as such, there is no classification between

the daughter  married or unmarried and son.   It cannot be

disputed that a daughter, may be a daughter married or

unmarried, would have a right of succession in the properties of

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the  parents including the lease.  Section  399  of the Inventory

Proceeding  Act,  2012 provides for list  of  assets  which can be

thrown to  succession and  it includes  movable  and  immovable

assets including mortgages, easements,  leases  and other

encumbrances.   Even, as admitted by the learned advocate

appearing on behalf of the respondents, so stated in the

additional written submissions, it is not disputed to the

proposition, whether Portuguese Civil Code, 1867 makes no

distinction as to the gender of the child or as to the order of birth

or as to the status of being single or married to discriminate in

matters relating to succession.  It is also admitted that this legal

position has not been changed pursuant to the enactment and

enforcement of the Inventory Proceeding Act, 2012, brought into

force with effect from 19.09.2016.  Even otherwise, as per Section

68 of the Inventory Proceeding Act, 2012, all  the children and

their descendants succeed to their respective parents and other

ascendants, without distinction of  sex or age. Thus, under the

provisions of the erstwhile Portuguese Civil Code, 1867 and/or

under the provisions of the Inventory Proceeding Act, 2012, there

is no further classification between a daughter married or

unmarried and son.   Therefore, considering the scheme and the

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provisions of the erstwhile Portuguese Civil Code and as per the

provisions of the Inventory Proceeding Act, 2012, which has come

into effect with effect from 19.09.2016, even the married

daughter would have a right of succession in the “lease

premises”.   As observed hereinabove, Section 399 of the

Inventory Proceeding Act, 2012 provides for list of assets which

includes movables and immovables assets including mortgages,

easements, leases and other encumbrances.

11. From  the impugned  orders  passed  by the inventory

court and the High Court, it is not in dispute that both the courts

below have held against 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 and has no

relevance while considering the right of succession of a married

daughter in the “lease premises”  under the provisions of the

erstwhile Portuguese Civil Code and subsequently on enactment

of the Inventory Proceeding Act, 2012.   The sum and substance

of the above discussion would be that a married daughter would

have a right of succession in the “lease premises” also.

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12. Insofar as the submission on behalf of the respondents

that in view of the subsequent development of the inventory court

pronouncing the final  order  and has drawn  the final  chart  of

partition in Regular Inventory Proceeding No. 11/2013/C, which

does not include the “lease premises” and the appellants having

signed and accepted the same, the present proceedings have

become infructuous is concerned, the aforesaid has no substance

and the same is required to be rejected outright.  It is required to

be noted that the final order has been pronounced by the

inventory court during the pendency of the present proceedings,

excluding the “lease premises” in the list of assets in the

inventory proceedings which are under challenge.   As the lease

premises was not included in the list of assets in the inventory

proceedings, naturally, the same would not be in the final chart

of partition, and therefore, whatever order is passed by the

inventory court, the appellants would have to sign and accept the

same.   However, as the present proceedings were pending and

during the pendency of the present proceedings, the  inventory

court has pronounced the final order and has drawn the final

chart  of  partition, it cannot  be  said that the  challenge to the

exclusion of the “lease premises” from the list of assets in the

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inventory proceedings has become  infructuous.  As  the present

proceedings were pending, the right of the appellants to challenge

the exclusion of the “lease premises” from the list of assets in the

inventory proceedings would continue and once  it is held that

appellant no.1 being a married daughter would have a right of

succession in the “lease premises”, and the same was wrongly

excluded from  the list of assets in the inventory  proceedings,

despite the final order being passed in the inventory proceedings

and the final chart being drawn, the same can be amended with

the aid of Section 446 of the Inventory Proceeding Act, 2012.

13. In view of the above and for the reasons stated, the

present Appeal Succeeds.   The impugned orders passed by the

inventory court and the High Court are hereby quashed and set

aside, and it is held that appellant no.1 being a married daughter

shall have a right of succession in the “lease premises” and the

same ought  to have been  included  in the  list  of  assets  in  the

inventory proceedings.  Consequently, the partition as per the

final order passed by the inventory court and consequent

drawing of the final chart of partition, pursuant to the final order

dated 31.07.2017 in Regular Inventory Proceeding No.

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11/2013/C be amended accordingly with the aid and/or

considering Section 446 of the Inventory Proceeding Act, 2012.

14. The instant APPEAL is ALLOWED accordingly, in terms

of the above.  However, there shall be no order as to costs.

………………………………J. [L. NAGESWARA RAO]

NEW DELHI; ……………………………….J. MARCH 13, 2019. [M.R. SHAH]

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