TaxTMI 
TaxTMI 
TaxTMI 
2019 (9) TMI 1704
X X X X Extracts X X X X
X X X X Extracts X X X X
....na 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the laws applicable in Goa prior to the appointed date i.e., 20.12.1961 would continue to be in force until amended or repealed by the competent legislature or authority.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the appointed day in Goa, Daman and Diu or any part thereof shall continue to be in force therein until amended or repealed by a competent Legislature or ot....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 Clause-2 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 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 desti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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 case of A.P. Fernandes v. Annette Blunt Finch and Ors. 2015 (6) Mh. L.J. 717 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 Cou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....perty 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? 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 Parliame....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 Section 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 Section 9(1) of the Act, which is in exactly the same terms. These provisions in our opinion show that as between the subjects and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nise the old rights by re-granting 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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 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 Ind....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce 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 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 situati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sition 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. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 Goan domiciles were to be governed by that law in matters covered under the Code and specifically included in the laws which were made applica....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al 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 th....