Case BriefsSupreme Court

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]

Case BriefsHigh Courts

Madhya Pradesh High Court: The Bench of Vivek Rusia, J. upheld the order of dismissal for want of locus standi passed by Wakf Tribunal, Bhopal, in a civil revision application. 

The deceased applicant, Iqbal Ahmad in legal capacity of legal heir applied to the Wakf for declaration of his title as Mujahir and Mutawali of Dargah he further pleaded the Tribunal to declare the auction by Tehsildar, of the appended land of Dargah illegal, which is in favor of the defendant and to restrain him from interfering with his peaceful possession. Applicant’s deceased father, Mushtaq Ahmed registered the said land in the year 1974 with the Tribunal and requested for upholding his title as Mutawali. The Court has granted an injunction in favor of the applicant’s father, despite the stay order the Tehsildar has auctioned the land in favour of the defendant. After the death of his father, he applied the Wakf for declaration of his title after submitting the adequate fees. 

The defendant raised an objection based on the ‘Locus Standi’ of the applicant, the said applicant is claiming title based on the Will of the deceased, further, they contended that the suit of the deceased is pending hence, the applicant cannot claim his title on the basis of the uncertain title of the deceased. 

The Tribunal held, “The plaintiff had no locus to challenge the auction as, during pendency of the Civil Revision, his right has not been established over the land.” The Tribunal dismissed the claim of the application and rejected his plaint. Being aggrieved by the order of Tribunal the deceased filed the Revision Petition which was carried forward by his son Irfan Ahmed as right to sue survives. He contended that he is the successor Mujahir and Mutawali, he has helped his ancestors in the working of Dargah and performed his duties as Mutawali.  

The Court observed, right to become a Mujahir and Mutawali claimed by Mustaq Ahmed on the basis of Will is yet to be established by the Court. However, Iqbal Ahmed was brought on record in place of Mustaq Ahmed by virtue of the Will in his favour hence, his right to become a Mujahir and Mutawali is also liable to be established. Irfan Ahmed is also required to establish his right to become Mujahir and Mutawali in place of Mustaq Ahmed and Iqbal Ahmed. 

It is important to mention here that in the Civil Revision filed by the Mustaq Ahmed, name of the applicant has been brought on record as legal representative and the Supreme Court has issued a direction for deciding the said revision treating to be filed by the present applicant

The Court further held, “Unless the right of Mustaq Ahmed is established, Iqbal Ahmed and Irfan Ahmed cannot claim by way of succession or the Will, therefore, all these issues can be decided in a civil suit if Irfan Ahmed files an application for bringing his name in place of Iqbal Ahmed. If such an application is filed then same be allowed & the Tribunal is directed to decide the pending civil suit and if the application has not been filed so far, then the liberty is granted to Irfan Ahmed to file such an application. The Tribunal did not commit any error while holding that Iqbal Ahmed had no locus to file the suit during pendency of Civil Revision No.462/1999 now, after the remand Civil Suit No.141/1997. Hence, I do not find any illegality in the impugned order.”[Irfan Ahmed v. M.P. Wakf Board, Civil Revision No. 303 of 2015, Order dated 01-05-2019]

Case BriefsSupreme Court

Supreme Court: In the matter where the widow of a Government Employee aggrieved by the order of the High Court of Punjab & Haryana at Chandigarh where it was directed that 50% of the pension be paid to the mother of the Government Employee, the Court set aside the impugned order and held that the parents of a married officer are not entitled to receive the pension amount as per the the Family Pension Scheme, 1964.

The Bench of A.R. Dave and L. Nageswara Rao, JJ took note of the Scheme and said that the mother of the deceased is not included in the definition of the term “family” for the reason that as per the provisions of sub-clause (f), parents of an unmarried officer would be a part of the family.

Explaining the difference between the position of law under the Hindu Succession Act, 1956 and the Family Pension Scheme, the Court said that as far as the Succession Law is concerned, it is true that the properties of a Hindu, who dies intestate would first of all go to the persons enumerated in class I of the schedule as per the provisions of Section 8 of the said Act and therefore and hence, the properties of the deceased in the case at hand would be divided among the respondent mother and the appellant wife, provided there is no other family member alive, who would fall within class 1 heirs, but position in this case, with regard to pension, is different.

The Court said that it is pertinent to note that in this case the pension is to be given under the provisions of the Scheme and therefore, only the person who is entitled to get the pension as per the Scheme would get it. The Court, hence, directed that the full amount of pension be paid to the widow of the Government employee. [Nitu v. Sheela Rani, 2016 SCC OnLine SC 1004, decided on 28.09.2016]