Uma Mahesh Bandekar and Another vs Vivek Sadanand Marathe and Others .

2. At the outset, it is required to be noted that the proceedings before the inventory court as well as the High Court were under the provisions of the Inventory Proceeding Act, 2012/Portuguese Civil Code, which shall be continued on enactment of the Inventory Proceeding Act, 2012, as if those proceedings were/are initiated under the Inventory Proceeding Act, 2012 (in view of Section 460 of the Inventory Proceeding Act, 2012). It is required to be noted that the proceedings before the inventory court and the High Court were not at all with respect to Goa Daman & Diu Buildings (Lease, Rent and Eviction) Control Act, 1968. The proceedings were not between the landlord and the tenant. The provisions of Goa Rent Act shall be applicable with respect to dispute between the landlord and the tenant. As per the preamble of the Goa Rent Act, it has been enacted for control of rents and evictions. At the cost of repetition, it is observed that the dispute was neither under the provisions of the Goa Rent Act nor between the landlord and the tenant and therefore both, the inventory court as well as the High Court have erred in considering the provisions of the Goa Rent Act, more particularly Section 2(o) of the Goa Rent Act. The only question which was before the inventory court and the High Court was in respect of the rights of succession of a married daughter in the “lease premises” under the provisions of the Portuguese Civil Code and subsequently under the provisions of the Inventory Proceeding Act, 2012. Therefore, what is required to be considered is whether under the provisions of the Portuguese Civil Code and on enactment of Inventory Proceeding Act, 2012, whether the married daughter would have a right of succession in the “lease premises” or not? [Para 9] [368-H; 369-A-E]

3. Considering the relevant provisions of the Inventory Proceeding Act, 2012, first of all, it is required to be noted that so far as rights of successor, i.e., heirs and legatees, as provided under Section 5 of the Inventory Proceeding Act, 2012, as such, there is no classification between the daughter married or unmarried and son. It cannot be disputed that a daughter, may be a daughter married or unmarried, would have a right of succession in the properties of the parents including the lease. Section 399 of the Inventory Proceeding Act, 2012 provides for list of assets which can be thrown to succession and it includes movable and immovable assets including mortgages, easements, leases and other encumbrances. Even, as admitted by the advocate appearing on behalf of the respondents, so stated in the additional written submissions, it is not disputed to the proposition, whether Portuguese Civil Code, 1867 makes no distinction as to the gender of the child or as to the order of birth or as to the status of being single or married to discriminate in matters relating to succession. It is also admitted that this legal position has not been changed pursuant to the enactment and enforcement of the Inventory Proceeding Act, 2012, brought into force with effect from 19.09.2016. Even otherwise, as per Section

68 of the Inventory Proceeding Act, 2012, all the children and their descendants succeed to their respective parents and other ascendants, without distinction of sex or age. Thus, under the provisions of the erstwhile Portuguese Civil Code, 1867 and/or under the provisions of the Inventory Proceeding Act, 2012, there is no further classification between a daughter married or unmarried and son. Therefore, considering the scheme and the provisions of the erstwhile Portuguese Civil Code and as per the provisions of the Inventory Proceeding Act, 2012, which has come into effect with effect from 19.09.2016, even the married daughter would have a right of succession in the “lease premises”. As observed hereinabove, Section 399 of the Inventory Proceeding Act, 2012 provides for list of assets which includes movables and immovables assets including mortgages, easements, leases and other encumbrances. [Para 10] [369-E-H; 370-A-D]

4. Insofar as the submission on behalf of the respondents that in view of the subsequent development of the inventory court pronouncing the final order and has drawn the final chart of partition in Regular Inventory Proceeding No. 11/2013/C, which does not include the “lease premises” and the appellants having signed and accepted the same, the present proceedings have become infructuous is concerned, the aforesaid has no substance and the same is required to be rejected outright. It is required to be noted that the final order has been pronounced by the inventory court during the pendency of the present proceedings, excluding the “lease premises” in the list of assets in the inventory proceedings which are under challenge. As the lease premises was not included in the list of assets in the inventory proceedings, naturally, the same would not be in the final chart of partition, and therefore, whatever order is passed by the inventory court, the appellants would have to sign and accept the same. However, as the present proceedings were pending and during the pendency of the present proceedings, the inventory court has pronounced the final order and has drawn the final chart of partition, it cannot be said that the challenge to the exclusion of the “lease premises” from the list of assets in the inventory proceedings has become infructuous. As the present proceedings were pending, the right of the appellants to challenge the exclusion of the “lease premises” from the list of assets in the inventory proceedings would continue and once it is held that appellant no.1 being a married daughter would have a right of succession in the “lease premises”, and the same was wrongly excluded from the list of assets in the inventory proceedings, despite the final order being passed in the inventory proceedings and the final chart being drawn, the same can be amended with the aid of Section 446 of the Inventory Proceeding Act, 2012. [Para 12] [370-F-H; 371-A-D]

Mohammad Laiquiddin v. Kamala Devi Misra (Dead) by LRs. (2010) 2 SCC 407 : [2010] 1 SCR 873

– referred to.