JOSE PAULO COUTINHO CASE

This Article is written by Anurag Choudhary student of Delhi University.

ABOUT THE CASE

In this case the question arose that – “Whether succession to the property of a Goan situated outside the region of Goa in India will be Governed by the Portuguese Civil Code of 1867, as applicable in the State of Goa or the Indian Succession Act, 1925”. The appeal was put forth before the Supreme Court Bench of Justices Deepak Gupta and Aniruddha Bose. The Bench adjudicated that Succession and Inheritances of Goan domicile shall be governed by the Portuguese Civil Code. The Supreme Court ordained that although the Civil Code may have had a foreign origin but it is now a part of the Indian Law.

 

BACKGROUND TO THE CIVIL CODE

The Portuguese Civil Code (1867) or Código Civil Português in India is only applicable to the State of Goa, and the Union Territories of Dadra & Nagar Haveli and Daman and Diu and has survived by virtue of Section 5(1) of the Goa, Daman and Diu Administration Act, 1962. The Civil Code was retained in the State after its merger with the Indian Union in 1961. Further, in 1981, the Government of India appointed a Personal Law Committee to determine if the non-uniform laws of the Union could be extended to Goa. With regard to inheritance this Code mentions the following aspects – Firstly, Goan parents cannot disinherit their children and at least half of the property has to be passed to the children. Secondly, the inherited property has to be distributed equally among the children.

 

KEY ASPECT OF THE JUDGMENT

An individual named Joaquim Mariano Pererira (JMP) had three daughters – Maria Luiza Valentina Pereira, Virginia Pereira and Maria Augusta Antoneita Pereira Fernandes. He also had a wife named Claudina Lacerda Pereira. JMP lived in Bombay and purchased a property in 1955. He transferred this property to his youngest daughter, Maria Luiza Valentina Pereira (Respondent No. 1). The two other daughters were given Rs 3000/- each. Claudina Lacerda Pereira died in 1960 and JMP in 1967. The probate of the will dated 6th May, 1957 was granted by the Bombay High Court and the two other daughters were notified about the proceedings.

Goa was liberated from Portuguese rule in 1961. In the present case the appellant, who is one of the legal heirs of the daughter of JMP, is of view that succession to property for a Goan should be as per the Civil Code. This requires the property of Bombay that was transferred by JMP to the Respondent Maria Luiza Valentina, to be dealt with under the Civil Code. However, the respondent asserts that as far the immovable property outside Goa in any other part of India is concerned, it would be as per the Indian Succession Act, 1925.

 

At this point it is necessary to state that under the Civil Code a person cannot dispose of all his property by way of Will. There are two portion of the property – One which can be disposed by Will, gift or etc and the other which is indisposable portion in terms of the Article 1784 of the Civil Code. This states – “Legitim 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 Clause2 of Article 1785 and Article 1787.”

 

Another interesting part of the Civil Code is that after the death of a person, inventory proceedings are started whereby the entire property of the deceased along with the liabilities are inventoried. In these proceedings normally the eldest member of the family is appointed as the administrator. The administrator performs the task of  preparing the inventory of all the properties after which these have to be shared in accordance with the Civil Code. Normally, if a person has kids 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 as laid down in the Civil Code. In case the deceased had made some testamentary bequests, then these bequests are to be adjusted against the portion of the estate which was not Legitim. As mentioned above, only half the property could be bequeathed and any part beyond that would not be a valid bequest.

 

One of the daughters of JMP, Virginia Pereira who was appointed the administrator (CabecaDeCasal) prepared the inventory proceedings which included the house of Bombay as well. The Respondent objected to the inventory because the property was situated in Bombay and thus was not governed by the inventory proceedings.  After the death of Virginia Pereira, Maria Pereira was appointed the administrator and removed the house at Bombay from the list of properties mentioned in the inventory. The Appellant who was one of the legal representatives of Virginia Pereira filed an objection to the above move and demanded the inclusion and valuation of the said property. This was done to work out the disposable portion and what was legitim.

 

Initially, the inventory Court in 1998 held that the Bombay property was to be excluded from the list of assets mentioned in the inventory proceedings at Goa. Later, the appellant challenged the judgment and appealed to the High Court. The High Court vide the impugned judgement held that in the view of the provisions of the Indian Succession Act, 1925 (Section 5), the Civil Code would not apply, in so far as the property concerned, is located outside Goa. The Appellant further filed an appeal to the Supreme Court.

 

The Supreme Court had three aspects to determine with regard to the case:

  • Whether the Portuguese Civil Law is foreign and the principle of an International Law is applicable?
  • Whether the property of a Goan outside the territory of Goa is to be governed by the Indian Succession Act, 1925 or the Civil Code?
  • What is the effect of grant of probate by the Bombay High Court in respect to the Will executed by JMP?

 

The Supreme Court with regard to the first question noted that President by the Ordinance called the Goa, Daman and Diu Ordinance, 1962 and later by the act of Parliament known as the Goa, Daman, Diu (Administration), Act , 1962 decided that certain laws applicable prior to the conquest of region will continue in the territories of Goa, Daman & Diu until amended or repealed by the competent legislature or any other competent body. The Portuguese law may have been a foreign law but it remains applicable on account of the ordinance after the inclusion of the region in the India union and thus the Code is now a part of Indian Law.

 

Regarding the second question, the Court ruled that Indian Citizens, under Article 19 of the Constitution are free to move to any part of the country, buy or sell property subject to local laws and limitations. The Apex Court was of view that the adopting of the Portuguese Civil Code after the conquest entailed that Goan domiciles were to be governed by that law and in matters recovered under the Code were made applicable. The Portuguese law was not enforced in its entirety but the laws that were applied were to work in full force. Besides, the Court also added that when there is a conflict between general law and the special law then the special law shall prevail.

While answering the third question the Apex Court ruled that the grant of probate has nothing to do with the inheritance. The jurisdiction of a probate Court is limited to decide whether the Will is genuine or not. The Will is genuine but that automatically does not make it a valid document. The Will needs to abide by the laws of inheritance which it did not in the above mentioned case. Thus, the Supreme Court ruled that Portuguese Civil Code, 1867 shall govern the rights of succession and inheritance in respect of properties of a Gaon domicile situated outside of 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 purposes.

 

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