Portuguese code applies to Goans’ properties anywhere in India: SC

NEW DELHI: The Supreme Court on Friday ruled that the rights of succession and inheritance of the properties of a Goan domicile situated anywhere in India will be governed by the Portuguese Civil Code, 1867 as applicable to the State of Goa, and not the Indian Succession Act, 1925.

The ruling that may affect properties of many Goans outside the State of Goa came on a dispute over the property of one Joaquim Mariano Pereira (JMP) regarding a property bought by him in Bombay (now Mumbai) in the year 1955 and bequeathed the same to his youngest daughter Maria Luiza Valentina Pereira in May 1957 while bequeathing Rs 3,000 each to his other two daughters.

Setting aside the judgment of the Goa Bench of the Bombay High Court, the Bench of Justices Deepak Gupta and Aniruddha Bose held that JMP's property in Bombay is to be included in the inventory of properties in the inventory proceedings in Goa for all intent and purposes.

The Bench set aside the judgment of the single judge on 08.08.2002 and restored the order of the Court of Comarca Judge of Salcete and Quepem, at Margao in the inventory proceedings in October 1999.

The Civil Code held that a person cannot dispose of all his properties by way of will as it has two provisions on disposal of the property, one on disposal by will, gift, etc of half the property, and another set apart for lineal descendants or ascendants. The code provided for division of the estate of every person into two parts, the second part for inheritance by the heirs, called legitimate.

In the instant case, the youngest daughter objected to the inventory of properties drawn up in 1981, claiming that the Bombay property cannot be governed by the inventory proceedings. When the legal battle was going on, a similar question arose before the Goa Division bench in case of A P Fernandes vs Annette Blunt Finch and others and it rejected the conclusion of the single judge as not a correct law and held that the Civil Code would apply even to the property situated outside Goa.

Senior advocate Devadatt Kamat, who appeared for the appellant, argued that the Apex Court will have to apply the Portuguese law as applicable to the domiciles of Goa, using the principles of private international law. He invoked the doctrine of renvoi to stress that since the citizens of Goa were governed by a foreign law, the Apex Court would have to apply the foreign law.

In its 31-page judgment, the Bench noted that the senior counsel also submitted that the Portuguese law lays down the principle of unity of succession of the property of a deceased Portuguese citizen whether situated within or outside the country have to be included for the purpose of the inventory proceedings. He insisted that the single judge's rule is not correct in law and the judgment of the division bench be approved.

In contrast, the counsel for the respondents insisted that the Portuguese Civil Code would apply only in the territory of Goa and would have no extra-territorial application over immovable properties situated outside Goa. He also insisted that the Bombay property will be governed by the Indian Succession Act.

The Apex Court framed the issues, including whether the property of a Goan outside the territory of Goa would be governed by the Portuguese code or by the 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.

On whether the Portuguese Civil Code can be said to be a foreign law on which principles of private international law are applicable, the Bench held that the code may be Portuguese in origin but after annexation of Goa it became applicable to the domiciles of Goa only by virtue of the Ordinance and the Act of the Indian Parliament.

Noting that the rights accruing under the old laws do not survive on acquisition of the territory by conquest, the Bench noted that the new sovereign is not bound to follow the old laws but it was the Indian Parliament that decided to continue the erstwhile Portuguese laws through an Act and therefore the Portuguese law which may have had foreign origin became a part of the Indian laws and applicable only on account of the ordinance and the Act.

The Apex Court also discussed the uniform civil code applicable in Goa, noting that the personnel laws will not apply in the state as even Muslim men whose marriages are registered in Goa cannot practice polygamy and further even for the followers of Islam, there is no provision for verbal divorce.

The Bench used this contest in deciding the status of the property of JMP situated in Bombay and held that the Code applies to it and not the Indian Succession Act. It noted that 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, nor can he be said to be living in a foreign country. Noting that this person is only a Goan domicile living outside Goa in India, which is his country and so Article 24 is not applicable.

The Bench then goes on to discuss the code at length, including its various articles, noting that succession is governed normally by the personal laws and where there is a uniform civil code, as in Goa, by the Civil Code. It therefore held that once Article 24 is not to be taken into consideration, it is but obvious that all properties whether within Goa or outside Goa, must be governed by the Civil Code of Goa.

It noted that after all it is an Indian law, though its origin being Portuguese, 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.

The Bench concluded that the Indian Parliament, 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. It said Parliament did not make applicable all Portuguese laws, but the laws which were applied would apply with full force.