New Delhi, Sep 15 (IANS) It is a unique case in Indian jurisprudence when a colonial-era law was assimilated into the independent country’s legal system for the development of its society. Goa, as the new sovereign, decided to follow the Common Civil Code laid down by Portuguese, to emerge as a shining example of an Indian state which applies a civil code to all regardless of religion.
The Supreme Court on Friday ruled that Portuguese Civil Code, 1867 as applicable to Goa, will govern the rights of succession and inheritance with respect to the properties of a Goan domicile even if they are situated elsewhere in India. This judgement can construed as a distinct court ruling, where the applicability of a foreign law was evaluated through two finely drafted questions by the apex court.
There questions were whether said to be a foreign law will be applicable in Indian context, and secondly, whether the property of a Goan domicile outside the territory of Goa would be governed by the civil code or by Indian Succession Act or by personal laws, as applicable in the rest of the country.
The court went on to address both in its verdict.
It observed that though of Portuguese origin, the civil code has has been enforced in its former colonial possessions of Goa, Daman and Diu by an Act of Parliament, which makes it an Indian law. Signifying the democratic values of the world’s largest democracy, the court observed: “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.”
This code became applicable to the domiciles of Goa by virtue of an Ordinance and thereafter, by the Act. The government also decided that these laws would continue only until amended or repealed by a competent legislature, therefore solidifying its integration into the legal framework. The top court also observed that Goa as a new sovereign is not compelled 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,” the apex court said in its judgement.
Concluding that it is crystal clear that the civil code is an Indian law and no principles of private international law are applicable to this case, the court’s verdict also showcases the democratic ethos of the country.
Answering the second question as it ruled on an inheritance case, the court said that the Indian Succession Act, which include Hindu Succession Act, Muslim Personal Law etc, or the laws of succession would not be applicable to Goan domiciles even for property outside Goa, and the civil code would apply.
Facts of the Case
Joaquim Mariano Pereira, married to Claudina Lacerda Pereira, had three daughters — Maria Luiza Valentina Pereira, Virginia Pereira and Maria Augusta Antoneita Pereira Fernandes. Living in Bombay, he purchased a property there in 1955 and by his will dated May 6, 1957, bequeathed this property at Bombay to his youngest daughter, Maria Luiza and Rs 3,000 each to his other two daughters. His wife expired on October 31, 1960 when he was still alive and Pereira died on August 2, 1967. The probate of the will was granted by the Bombay High Court’s Panaji bench on September 12, 1980 and both the other daughters were served notice of the probate proceedings.
Though the high court ruled that the the Goan civil code would not apply to the property situated outside Goa, the apex court set aside its judgement, ruling that the property in Bombay shall have to be included in the inventory of properties in the inventory proceedings in Goa.
(Sumit Saxena can be contacted at [email protected])