Case: JOSE PAULO COUTINHO Vs. MARIA LUIZA VALENTINA PEREIRA

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. Reference may be made to the decision of this Court in R.S. Raghunath vs. State of Karnataka & Ors. (1992) 1 SCC 335 , Commercial Tax Officer, Rajasthan vs. Binani Cements Ltd. & Ors. (2014) 8 SCC 319 and Atma Ram Properties Pvt. Ltd. vs. The Oriental Insurance Co. Ltd. (2018) 2 SCC 27. 30. As far as Goa is concerned, there is a specific judgment in this regard i.e. Justiniano Augusto De Piedade Barreto & Ors. vs. Antonio Vicente Da Fonseca & Ors., (1979) 3 SCC 47 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. In Para 14 of this judgment, the Court held as follows: 14. We, therefore, arrive at the conclusion that the body of provisions in the Portuguese Civil Code dealing with the subject of Limitation of suits etc. and in force in the Union Territory of Goa, Daman and Diu only is local 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 though it is admitted by all sides that probate was granted and the appellants herein had notice of the probate case. Assuming that probate had been granted, what is the effect of the grant of probate on the laws of inheritance? Grant of probate has nothing to do with inheritance. 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. 33. This Court in Krishna Kumar Birla vs. Rajendra Singh Lodha (2008) 4 SCC 300 held as under: 57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to be filed, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. In view of the clear-cut exposition of law in the aforesaid case, we hold 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. 34. In view of the above discussion, we answer the question framed in Paragraph 1, holding that 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]I. Whether the Portuguese Civil Code can be said to be a foreign law and the principles of private international law are applicable?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 Indian law and no principles of private international law are applicable to this case. We answer question number one accordingly19. Once we come to this conclusion, the answer to the second question becomes very simpleII. 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.?21. However, Goa is a shining example of an Indian State which has a uniform civil code applicable to all, regardless of religion except while protecting certain limited rights. It would also not be out of place to mention that with effect from 22.12.2016 certain portions of the Portuguese Civil Code have been repealed and replaced by the Goa Succession, Special Notaries and Inventory Proceedings Act, 2012 which, by and large, is in line with the Portuguese Civil Code. The salient features with regard to family properties are that a married couple jointly holds the ownership of all the assets owned before marriage or acquired after marriage by each spouse. Therefore, in case of divorce, each spouse is entitled to half share of the assets. The law, however, permits pre-nuptial agreements which may have a different system of division of assets. Another important aspect, as pointed out earlier, is that at least half of the property has to pass to the legal heirs as legitime. This, in some ways, is akin to the concept of coparcenary in Hindu law. However, as far as Goa is concerned, this legitime will also apply to the self-acquired properties. Muslim men whose marriages are registered in Goa cannot practice polygamy. Further, even for followers of Islam there is no provision for verbal divorceAs 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 GoaIt 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 judgmentIn our view, this article has no applicability to the facts of the present case. When a law is adopted or applied in a new situation, it has to be read in that context. We have to read Article 24 in context of the annexation of the territories of Goa by conquest and their becoming an inherent part of India. There are no Goan citizens; there can be domiciles of Goa but all are citizens of India. As Indian citizens, under Article 19 of the Constitution, they are free to move to any part of the country, reside there and buy property subject to the local laws and limitations. Therefore, 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 and he cannot be said to be living in a foreign country. Indian citizens living in India cannot, by any stretch of imagination, be said to be living in a foreign country. This person is only a Goan domicile living outside Goa in India, which is his country. Therefore, Article 24, in our opinion, has no applicabilityA bare reading of Article 1737 clearly indicates that the inheritance of a deceased comprises of all the assets, rights and liabilities of the deceased. The only exclusion, is totally personal assets or those excluded by the disposition of the said deceased or by law24. Article 1766 provides that a married person shall not on the penalty of nullity dispose of certain and specific properties of the couple except if the said properties have been allotted to the said personThe basis of this article is that both spouses are equal owners of the entire property of the couple – acquired before or after marriage. Therefore, the disposition 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?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, in matters of succession, would apply only in respect to properties situated within the territories of Goa? We do not think so26. Succession is governed normally by the personal laws and where there is a uniform civil code, as in Goa, by the Civil Code. Once Article 24 is not to be taken into consideration then it is but obvious that all the properties whether within Goa or outside Goa, must be governed by the Civil Code of Goa. If we were to hold otherwise, the consequences could be disastrous, to say the least. There would be no certainty of succession. It would be virtually impossible to determine the legitime which is an inherent part of the law of succession. The rights of the spouses to have 50% of the property could easily be defeated by buying properties outside the State of Goa. In the case of a Hindu Goan domicile it would lead to further complications because if we were to accept the judgment of the learned Single Judge and the arguments of the respondents, for the properties in Goa, the Civil Code would apply but for the properties outside the territory of Goa, the Hindu Succession Act will apply. Similarly, for Muslims within the State of Goa, Civil Code would apply and outside Goa, the Muslim Personal Law (Shariat) Application Act, 1937 would apply. This would lead to many uncalled for disputes and total uncertainty with regard to succession27. There must be unity in succession. The Portuguese law is based on the Roman law concept of hereditas i.e. inheritance to the entire legal position of a deceased manThough 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 apply28. 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 applicable. The Indian Parliament did not make applicable all Portuguese laws but the laws which were applied would apply with full force. The Goa, Daman and Diu (Administration) Act, 1962 is a special law dealing with the domiciles of Goa alone. This special law making the Portuguese Civil Code applicable is an exception carved out of the general laws of succession namely Indian Succession Act, Hindu Succession Act, 1956, Muslim Personal Law (Shariat) Application Act, 1937 and other laws29. 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 subject30. As far as Goa is concerned, there is a specific judgment in this regard i.e. Justiniano Augusto De Piedade Barreto & Ors. vs. Antonio Vicente Da Fonseca & Ors., (1979) 3 SCC 47 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. In Para 14 of this judgment, the Court held as follows:14. We, therefore, arrive at the conclusion that the body of provisions in the Portuguese Civil Code dealing with the subject of Limitation of suits etc. and in force in the Union Territory of Goa, Daman and Diu only is local 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 Diu31. 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 domicilesIII. 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 though it is admitted by all sides that probate was granted and the appellants herein had notice of the probate case. Assuming that probate had been granted, what is the effect of the grant of probate on the laws of inheritance? Grant of probate has nothing to do with inheritance. 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 name33. This Court in Krishna Kumar Birla vs. Rajendra Singh Lodha (2008) 4 SCC 300   held as under:57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to befiled, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into the (sic probate) proceedings. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate CourtIn view of the clear-cut exposition of law in the aforesaid case, we hold 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 deceased34. In view of the above discussion, we answer the question framed in Paragraph 1, holding that 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.