2019 (9) TMI 1704 - SC - Indian Laws

Portuguese Civil Code Prevails in Goan Succession Rights

The Supreme Court held that the Portuguese Civil Code, applicable in the State of Goa, governs succession and inheritance rights for properties of a Goan ... Portuguese Civil Code as applicable in Goa - continuance of local law by Act of Parliament - special law prevails over general law - unity of succession / universal succession (hereditas) - lex rei situs (limited applicability) - probate court jurisdiction and effect of grant of probate - renvoi and private international law (rejected)Portuguese Civil Code as applicable in Goa - continuance of local law by Act of Parliament - renvoi and private international law (rejected) - Whether the Portuguese Civil Code is to be treated as a foreign law and whether principles of private international law (including renvoi) apply. - HELD THAT: - The Court held that although the Civil Code is of Portuguese origin, its continued operation in Goa results from the Goa, Daman and Diu (Administration) Ordinance/Act and subsequent enactment by the Indian Parliament; consequently the Code has become part of Indian law insofar as it applies to domiciles of Goa. The continuance of the pre-annexation laws in the territory was a matter of recognition by the new sovereign; here Parliament expressly adopted those laws for Goa, making them local Indian law. For that reason principles of private international law and the doctrine of renvoi are inapplicable to treat the Code as a foreign law governing Goan domiciles within India. [Paras 14, 18]The Portuguese Civil Code, as enforced by Indian legislation for Goa, is not a foreign law for present purposes and private international law/renvoi does not apply.Unity of succession / universal succession (hereditas) - special law prevails over general law - lex rei situs (limited applicability) - Whether succession to the property of a Goan domiciled person, situate outside Goa but within India, is governed by the Civil Code or by the Indian Succession Act / other general succession laws. - HELD THAT: - The Court held that succession for domiciles of Goa must be governed uniformly by the Portuguese Civil Code as made applicable by the special local legislation. Reading Article 24 of the Code in context was rejected as inapplicable because Goans are Indian citizens and properties elsewhere in India are not 'foreign'. The Court emphasised the Roman-law concept of universal succession (hereditas) and reasoned that calculating legitime and other succession incidents requires considering the entire estate, wherever situated in India. As a special and local law adopted for Goa, the Civil Code displaces the general succession statutes (Indian Succession Act, Hindu Succession Act, Muslim Personal Law (Shariat) Application Act) insofar as they would apply to Goan domiciles; the maxim generalia specialibus non derogant supports the predominance of the special/local law. [Paras 25, 28, 31, 34]Succession of a Goan domicile's properties, whether within Goa or elsewhere in India, is governed by the Portuguese Civil Code as applicable in Goa; general Indian succession statutes do not apply to such Goan domiciles.Probate court jurisdiction and effect of grant of probate - What is the legal effect of the grant of probate by the Bombay High Court in respect of the Will executed by JMP? - HELD THAT: - The Court reiterated that the Probate Court's jurisdiction is limited to adjudicating the genuineness of a will and related procedural matters; grant of probate does not determine or override substantive rights of succession under applicable inheritance laws. Even if probate is granted, it cannot validate testamentary dispositions that infringe the legitime or other inheritance rights arising by operation of law (analogous to coparcenary rights). Reliance on precedent establishing the limited effect of probate was affirmed. [Paras 32, 33]The grant of probate by the Bombay High Court does not affect or supplant the succession rights of legal heirs under the Civil Code.Final Conclusion: The appeal is allowed: the Portuguese Civil Code as applicable in Goa governs succession of a Goan domiciliary's properties located anywhere in India; the grant of probate does not defeat statutory succession rights; the impugned High Court judgment is set aside and the order including the Bombay property in the Goan inventory proceedings is restored. Issues Involved:1. Whether the Portuguese Civil Code can be said to be a foreign law and the principles of private international law are applicableRs.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 countryRs.3. What is the effect of the grant of probate by the Bombay High Court in respect of the Will executed by JMPRs.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 applicableRs.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 countryRs.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 JMPRs.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.