Supreme Court: The bench of Deepak Gupta and Aniruddha Bose, JJ has held that grant of probate has nothing to do with inheritance.  It said,

“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.”

Giving an example, the Court explained that 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.

The Court was deciding the question as to, “Whether succession to the property of a Goan situate outside Goa in India will be governed by the Portuguese Civil Code, 1867 as applicable in the State o Goa or the Succession Act, 1925”.

Noticing that the Portuguese Civil Code continued to apply in Goa only because of an Act of the Parliament of India, the Court held that 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. Having considered this fact, the Court said,

“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 so.”

The Court said that 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.”

It was hence, held 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 Succession Act or the laws of succession would not be applicable to such Goan domiciles.

[Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, 2019 SCC OnLine SC 1190, decided on 13.09.2019]

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One comment

  • I mean citizen of damansince birth I have right in my father purchase property after my marriage??

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