Jose Paulo Coutinho vs Maria Luizavalentina Pereira & Anr.

Interpretation of statutes: Principle of – Held: 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 – Its 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.

Allowing the appeal, the Court

HELD: 1.1 The Civil Code may be a Code of Portuguese origin but after conquest and annexation of Goa, Daman and Diu, this Code became applicable to the domiciles of Goa only by virtue of the Ordinance and thereafter, by the Act. Therefore, the Civil Code has been enforced in Goa, Daman and Diu by an Act of the Indian Parliament and thus, becomes an Indian law. [Para 14] [402-E-F]

1.2 In so far as the continuance of old laws is concerned, the new sovereign is not bound to follow the old laws. It is at liberty to adopt the old laws wholly or in part. It may totally reject the old laws and replace them with laws which apply in the other territories of the new sovereign. It is for the new sovereign to decide what action it would take with regard to the application of laws and from which date which law is to apply. As far as the instant 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 It was, however, made clear that these laws would continue only until amended or repealed by competent legislature or by other competent authority. Thus, 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. Therefore, it is crystal clear that the Code is an Indian law and no principles of private international law are applicable to this case. [Para 17, 18] [406-B-F]

2.1 The Indian Parliament has made the earlier Portuguese Civil Code applicable in the State of Goa. Article 24 has no applicability to the facts of the instant case. When a law is adopted or applied in a new situation, it has to be read in that context. Article 24 has to be read 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, 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, has no applicability.[Para 22] [407-G; 408-C-E]

2.2 The parties are ad idem that the Code applies. A 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 law. 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 person. The 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. [Para 23-24] [408-E-H; 409-B-C]

2.3 In most of the cases, the legitime would be half. Once it is concluded that the Civil Code is an Indian law and the domiciles of Goa, for all intent and purposes, are Indian citizens, it would not 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. [Para 25] [409-E-F]

2.4 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 it was to be held 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 the judgment of the Single Judge and the arguments of the respondents were to be accepted, 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 succession. [Para 26] [409-G-H; 410-A-B]

2.5 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 man. Though it is held that this is Indian law, since it is a law of Portuguese origin, the guidance is to be taken 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. [Para 27] [410-C, G]

2.6 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. 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 laws. [Para 28] [410-H; 411-A-C]

2.7 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 subject. [Para 29] [411-D]

2.8 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. 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. [Para 30-31] [412-A-B; D-E]

3.1 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 had notice of the probate case. Assuming that probate had been granted, as regards 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. 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. The grant of probate by the Bombay High Court in respect of the Will executed by JMP did not in any manner affect the rights of inheritance of all the legal heirs of the deceased. [Para 32-33] [412-F-H; 413-A, E]

3.2 The Portuguese Civil Code, 1867 as applicable in the State of Goa, shall govern the rights of succession and inheritance even in respect of properties of a Goan domicile situated outside Goa, anywhere in India. [Para 34] [413-F]

4. 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. The judgment of the Single Judge of the High Court is set aside and the order of the Court of Comarca Judge in Inventory Proceedings is restored. [Para 35] [413-G; 414-A]

A. P. Fernandes v. Annette Blunt Finch and others 2015

(6) Mh.L.J. 717 ; Pema Chibar v. Union of India & Ors. AIR 1966 SC 442 : [1966] SCR 357 ; Vinodkumar Shantilal Gosalia v. Gangadhar Narsingdas Agarwal (1981) 4 SCC 226 : [1982] 1 SCR 392 ; Mohd. Ahmed Khan v. Shah Bano (1985) 2 SCC 556 : [1985] 3 SCR

844 ; Sarla Mudgal & Ors. v. Union of India & Ors. (1995) 3 SCC 635 : [1995] 1 Suppl. SCR 250 ; R.S. Raghunath v. State of Karnataka & Ors. (1992) 1 SCC

335 : [1991] 1 Suppl. SCR 387 ; Commercial Tax Officer, Rajasthan v. Binani Cements Ltd. & Ors. (2014)

8 SCC 319 : [2014] 3 SCR 1 ; Atma Ram Properties Pvt. Ltd. v. The Oriental Insurance Co. Ltd. (2018) 2 SCC 27 : [2017] 12 SCR 1044 ; Justiniano Augusto De Piedade Barreto & Ors. v. Antonio Vicente Da Fonseca & Ors. (1979) 3 SCC 47 : [1979] 3 SCR

494 ; Krishna Kumar Birla v. Rajendra Singh Lodha (2008) 4 SCC 300 : [2008] 5 SCR 640 - referred to. Comparative Analysis of Civil Law Succession, Villanova Law Review Vol. 11, Issue 2 - referred to.