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2019 (9) TMI 1704 - SC - Indian LawsSuccession to the property of a Goan situate outside Goa in India - governed by the Portuguese Civil Code 1867 as applicable in the State of Goa or the Indian succession Act 1925? Whether the Portuguese Civil Code can be said to be a foreign law and the principles of private international law are applicable? - HELD THAT - 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. 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. 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. 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.? - HELD THAT - 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. As far as Goa is concerned there is a specific judgment in this regard i.e. Justiniano Augusto De Piedade Barreto and Ors. v. Antonio Vicente Da Fonseca and Ors. 1979 (3) TMI 208 - SUPREME COURT 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. 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. What is the effect of the grant of probate by the Bombay High Court in respect of the Will executed by JMP? - HELD THAT - 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. This Court in Krishna Kumar Birla v. Rajendra Singh Lodha 2008 (3) TMI 741 - SUPREME 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 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. 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 purpose - Appeal allowed.
Issues Involved:
1. Whether the Portuguese Civil Code can be said to be a foreign law and the principles of private international law are applicable? 2. 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? 3. What is the effect of the grant of probate by the Bombay High Court in respect of the Will executed by JMP? Issue-wise Detailed Analysis: I. Whether the Portuguese Civil Code can be said to be a foreign law and the principles of private international law are applicable? The territories of Goa, Daman, and Diu were annexed by India on 20.12.1961 and became part of India. The Portuguese Civil Code, though of Portuguese origin, became applicable to Goa by virtue of the Goa, Daman, and Diu (Administration) Act, 1962, an Act of the Indian Parliament. The Supreme Court of India held that the Portuguese Civil Code is no longer a foreign law but an Indian law, applicable to the domiciles of Goa. Therefore, principles of private international law are not applicable in this case. 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? The Supreme Court emphasized that the Portuguese Civil Code, being a special and local law for the domiciles of Goa, applies to all properties of a Goan domicile, regardless of their location in India. The Court rejected the argument that the Indian Succession Act or other personal laws would apply to properties outside Goa. The Court highlighted the importance of unity in succession and the need to avoid complications and uncertainties that would arise if different laws were applied to properties within and outside Goa. Consequently, the Portuguese Civil Code governs the succession of properties of a Goan domicile, irrespective of their location in India. III. What is the effect of the grant of probate by the Bombay High Court in respect of the Will executed by JMP? The Supreme Court clarified that the grant of probate by the Bombay High Court does not affect the laws of inheritance. The jurisdiction of a probate court is limited to determining the genuineness of the Will and does not extend to the validity of the Will concerning inheritance laws. The Court held that the legitime, a portion of the property reserved for legal heirs by law, cannot be overridden by a Will, even if probate is granted. Therefore, the grant of probate does not negate the rights of legal heirs under the Portuguese Civil Code. Conclusion: The Supreme Court concluded that the Portuguese Civil Code, 1867, as applicable in the State of Goa, governs the rights of succession and inheritance for properties of a Goan domicile, even if situated outside Goa, anywhere in India. The judgment of the Bombay High Court was set aside, and the property of JMP in Bombay was to be included in the inventory proceedings in Goa. The appeal was allowed, and the order of the Court of Comarca Judge of Salcete and Quepem, at Margao, was restored.
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