Appeal From Order No.12 of 2000

8th August, 2008

Petitioner Counsel: Mr. M. S. USGAONKAR,Mr. S. SARDESSAI
Respondent Counsel: Mr. J. MULGAONKAR

Cases Cited:
Monica Variato Vs. Thomas Variato, 2000(2) Goa L.T. 149 [Para 7]
Satye Vs. Teja Singh, AIR 1975 SC 105 [Para 9]
D. P. Joshi Vs. State of Madhya Bharat, AIR 1955 S.C. 334 [Para 10]

JUDGMENT

JUDGMENT :- Challenge in this appeal is to the Order dated 15.10.1999 of the learned Comarca Judge at Margao.

2. The short question for consideration is whether the property located at Mumbai and which is enlisted under Item No.8 is required to be excluded or not from the Inventory Proceedings. The said issue was required to be decided by the learned Comarca Judge by virtue of Order of this Court dated 16.3.1999 in appeal from Order No.59/1998.

3. Some facts are required to be stated to dispose off this appeal. Inventory Proceedings are going on upon the death of Joaquim Mariano Pereira and his wife Claudina Lacerda Pereira who died leaving behind three daughters namely Maria Augusta Antoneita Luisa Pereira Fernandes, Virginia Pereira and Maria Luiza Valetina Pereira. Initially the said Virginia Pereira was appointed as Administrator and had listed the properties of the said inventoried/inventariados. Subsequently Maria Augusta came to be appointed as the Administrator and she chose not to include the said property under Item No.8. It appears that the respondent no.1 who is the son-in-law of the said Virginia Pereira raised the dispute regarding the exclusion of the said property and which dispute was required to be decided, as directed by the said Order of this Court dated 16.3.1999.

4. There is no dispute that both the inventoried were nationals who were governed by the Civil Code, 1867 which is in force in this State (Code, for short). The inventoried Claudina Lacerda Pereira died on 31.10.1960 and the inventoried Joaquim Mariano Pereira died on 2.8.1967 and the latter prior to his death on 6.5.1957, made a Will in respect of the said property at Mumbai in favour of his youngest daughter, the said Maria Luiza Pereira bequeathing the said property in her favour and by the same Will he also made a bequest of Rs.3,000/- each to his said two other daughters namely Virginia Pereira and Maria Augusta Antonieta Pereira Fernandes.

5. The learned Comarca Court by the impugned Order dated 15.10.1999 after referring to Articles 24, 2098 and 1961 of the said Code concluded that the cardinal principle of law under the said Code and regarding inventory proceedings was to have equality of shares amongst all the co-heirs and for that reason all the properties whether gifted or bequeathed had to be included in the list of assets. The learned Judge also held that the doctrine of lex situs also had to come within the purview of collation. Referring to Article 1961 of the said Code, the learned Judge noted that Wills made by the Portuguese in foreign country would also produce their legal effects in the Kingdom when they are drawn authentically in accordance with the law of the country where they have been executed.

6. Learned Senior Counsel, on behalf of the appellants, has also referred to Article 24 of the said Code and has submitted that the disputed property could not be included in the inventory because both the deceased being nationals governed by the Code, their immovable properties situated within Goa alone could be subjected to the inventory proceedings. That the disputed property had to be excluded from the inventory proceedings and that it would be governed by law in force at that place, learned Senior Counsel has referred to Section 5 of the Indian Succession Act, 1925, which provides that succession to the immovable property in India of a person deceased shall be regulated by law of India, wherever such person deceased may have had his domicile at the time of his death.

7. Learned Senior Counsel has also referred to some decisions of the Apex Court and to the Division Bench Judgment of this Court in the case of Monica Variato Vs. Thomas Variato (2000(2) Goa L.T. 149). The said decisions of the Apex Court have been considered by the learned Division Bench and after considering the same in para 15(2)(a), the learned Division Bench has held that applying the principles of Private International Law, bearing in mind various personal laws in this country, eventhough the spouses are domiciled in Goa, in respect of a marriage performed outside Goa but in any other State of the Union, they would be governed by their personal laws insofar as dissolution of marriage is concerned.

8. On the other hand, learned Counsel appearing on behalf of the respondents no.1 and 2, has supported the reasoning of the learned Comarca Judge and has submitted that the basic principle underlying the personal laws of the parties is to bring about equality in division of the assets left by the inventoried and for this purposes learned Counsel submits that the other provisions of the Code as regards legitime dealt by Article 1790 have also to be considered. Learned Counsel further submits that even a property which is bequeathed has got to be brought in, in respective of where it is situated so that the parties to the inventory can exercise their rights to bid for the same in terms of Article 1407 of the C.P.C., 1939. Learned Counsel further submits there is nothing in Article 24 to suggest that the properties outside the Kingdom i.e. outside Goa have to be excluded and therefore Article 24 cannot be read in isolation and has got to be considered harmoniously with other provisions of the Code.

9. Apparently, the present case is as regards the conflict of laws which are in force in the State of Goa and the State of Maharashtra which have got to be considered as two separate countries for the purpose of private international law. In this context, reference to the case of Satye Vs. Teja Singh (AIR 1975 SC 105), would not be out of place, wherein the Apex Court observed that it is a truism to say that whether it is a problem of municipal law or of Conflict of Laws, every case which comes before an Indian Court must be decided in accordance with Indian law. It is another matter that the Indian conflict of laws may require that the law of a foreign country ought to be applied in a given situation for deciding a case which contains a foreign element. Such a recognition is accorded not as an act of courtesy but on considerations of justice. It is implicit in that process that the foreign law must not offend against our public policy.

We cannot therefore adopt mechanically the rules of Private International Law evolved by other countries. These principles vary greatly and are moulded by the distinctive social, political and economic conditions obtaining in these countries. Question relating to the personal status of a party depend in England and North America upon the law of his domicile but in France, Italy, Spain and most of the other European countries upon the law of his nationality. Principles governing matters within the divorce jurisdiction are so conflicting in the different countries that not unoften a man and a woman are husband and wife in one jurisdiction but treated as divorced in another jurisdiction. We have before us the problem of such a limping marriage.

10. The Apex Court in D. P. Joshi Vs. State of Madhya Bharat (AIR 1955 S.C. 334) has stated as follows :

"But citizenship and domicile represent two different conceptions. Citizenship has reference to the political status of a person, and domicile to his civil rights. A Classic statement of the law on this subject is that of Lord Westbury in - "Udny Vs. Udny', (1869) LR 1 SC & Div.441 at 457(E).

He observes :

"The law of England, and of almost all civilised countries, ascribes to each individual at his birth two distinct legal states or conditions: one by virtue of which he becomes the subject of some particular country binding him by the tie of national allegiance, and which may be called his political status, another by virtue of which he has ascribed to him the character of a citizen of some particular country and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the individual, and may be quite different from his political status.

The political status may depend on different laws in different countries; whereas the civil status is governed universally by one single principle, namely, that of domicile, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage succession, testacy or intestacy, must depend."

"Domicile has reference to the system of law by which a person is governed, and when we speak of the domicile of a country, we assume that the same system of law prevails all over that country. But it might well happen that laws relating to succession and marriage might not be the same all over the country, and that different areas in the State might have different laws in respect of those matters. In that case, each area having a distinct set of laws would itself be regarded as a country for the purpose of domicile."

11. Article 24 of the Code when translated reads as follows :

"The Portuguese subject 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 facts 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."

Article 1784 of the Code defines what is legitime and Article 1790 of the Code deals with how calculation is to be made for the purpose of reduction. It provides that :

"1. The value of all the properties left by the estate-leaver shall be added together after deducting the debts of the inheritance; the value of the properties that may have been gifted by the deceased shall be added to the balance amount and the disposable portion shall be calculated with relation to this total amount.

2. The value of the properties gifted shall be that which they had on the date of the opening of the inheritance and the same date shall be considered for the computation of the extent of the disposable portion.

3. Where the thing gifted has perished without the donee having directly contributed thereto, the same shall not be included in the inheritance for the purpose of calculating the legitime, save stipulation to the contrary."

Article 2098 of the Code defines the concept of collation as the return, which the forced heirs desiring to claim inheritance, are bound to do, to the mass of succession, of the values which have been gifted to them by the estate-leaver, for the purpose of calculation of the half and for the equality of the partition.

Article 1961 of the Code states that the wills made by the Portuguese in foreign country will produce their legal effects in the kingdom when drawn authentically in accordance with the law of the country where they have been executed.

12. There can be no dispute that the main purpose of inventory proceeding is to have equality of shares amongst all co-heirs to the estate of the deceased and for that the gifted properties are required to be brought to the mass of inheritance to find out whether there is excess of disposable portion, but what should happen when Article 24 of the Code makes a specific provision that immovable properties situated in Goa (in the kingdom) would be governed by Portuguese law? Does it not by implication leave out immovable properties situated outside Goa (kingdom) to be governed by local laws?. In my opinion it does. The Civil Code is entirely based on the concept of nationality and has no extra territorial operation. It now does not travel beyond the State of Goa. Dr. Cunha Gonsalves in his treatise, Vol.1, page 605 gives a very classic example. Says he, if a portuguese citizen (in our case a goan) dies, leaving behind immovable properties in France, his succession will be regulated, in Portugal, by potuguese law, which is personal law, in France by french law, which is a lex rei sitae. Therefore it follows that the properties of the inventoried located in Goa will be governed by the Code and those in Mumbai by Section 5 of the Indian Succession Act, 1925.

13. Learned Senior Counsel on behalf of the appellants has also placed reliance on the views expressed by several jurists on the Code, particularly Article 24, and as regards which Jose Dias Ferreira in his commentery at page 51, Volume 1 has stated that :

"Article 24 legislates only in respect of acts which will have effect in the Kingdom and which will not be executed if taking into consideration the status and civil capacity of the Portuguese and his immovable property situated in the kingdom, are not in accordance with the national legislation. The immovable property situated in another country shall be governed by the law of that country. The status and civil capacity are at all places governed by Portuguese law for the acts which will have effect in Portugal. The immovable properties, whichever may be nationality of the owner are subject to the law of the territory, lex situs, i.e. to say law of the country where they are situated. The right of national sovereignity does not go beyond the boundaries of the nation but reaches upto there."

14. Dr. Cunha Gonsalves another celebrated jurist on the Civil Code, 1867 at page 643, Volume 1 has stated that :

"And on the other hand, Article 24, subjecting to the Portuguese laws only the immovable properties, situated in Portugal, belonging to the Portuguese who are in the foreign country, evidently excludes the immovable and movable properties of same Portuguese situated outside national territory, which are, therefore subject to lex situs."

15. As seen before, Article 24 of the Code clearly provides that immovable properties situated in the State would be governed by the said Code. By necessary implication it leaves out the immovable properties situated outside Goa. These situated outside would be governed by the provisions of Section 5 of the Indian Succession Act, 1925.

In other words, the property at Mumbai will be governed by the lex situs i.e. to say Indian Succession Act, 1925. That being the position and on the face of Article 24 of the Civil Code, only properties situated in the Kingdom i.e. in Goa would be governed by the said Code to which the inventoried were subject to.

16. In view of the above, the impugned Order is liable to be set aside and consequently the inventory proceedings will have to proceed by excluding the said property at Mumbai, which is described under Item no.8 and the same would be required to be dealt with under the provisions of the Indian Succession Act, 1925.

17. The appeal is allowed on above terms. No order as to costs. Stay Order if any shall stand vacated.

Appeal allowed.