Family Law

Jose Paulo Coutinho v. Maria Luiza Valentina Pereira

MANU/SC/1257/2019

Facts

Joaquim Mariano Pereira, a Goan domicile, had a wife and three daughters.
He lived in Bombay and purchased immovable property there in 1955.
In 1957, he executed a will:
giving the Bombay property to his youngest daughter, Maria Luiza;
leaving ₹3,000 each to the other daughters.
His wife died in 1960, and he died in 1967.
Probate of the will was granted by the Bombay High Court at Goa.
A dispute later arose in inventory proceedings concerning whether the Bombay property had to be included in the deceased’s Goan estate.
One side argued that:
because the property was situated in Bombay;
the Indian Succession Act should govern it.
The opposing side argued that succession depended upon the deceased’s Goan domicile and was governed by the Portuguese Civil Code, 1867, then applicable in Goa.

Whether succession to property owned by a Goan domicile but situated outside Goa is governed by:
the Portuguese Civil Code applicable in Goa; or
the Indian Succession Act and the law of the place where the property is situated.
Whether grant of probate conclusively determines inheritance rights.

The Portuguese Civil Code continued in force after Goa’s integration into India through the Goa, Daman and Diu (Administration) Act, 1962.
It therefore operates as an Indian special and local law, not as foreign law.
In succession matters, it applies to persons domiciled in Goa.
Its personal application extends to their property wherever situated within India.
A special succession law prevails over the general Indian Succession Act.
Probate establishes:
the genuineness and due execution of the will;
not the testator’s substantive power to defeat mandatory inheritance rights.
Under Goan succession law, compulsory heirs possess a protected portion called the legitime.

The Court rejected the argument that the Portuguese Code became foreign law after Goa joined India.
Its continued force arose from Indian parliamentary legislation.
It was therefore part of Indian law.
The law was special because it governed Goan domiciles in matters such as:
marriage;
matrimonial property;
inheritance;
compulsory heirship.
If it applied only to property physically situated in Goa, a Goan could avoid its protections simply by purchasing property elsewhere.
That would defeat the personal and family-law character of the Code.
Consequently, the Bombay property remained subject to Goan succession rules.
The grant of probate did not validate every substantive disposition.
A probate court examines whether the will is genuine.
It does not determine whether the testator:
owned the whole property;
exceeded the disposable portion;
infringed the heirs’ legitime.
The Bombay property therefore had to be brought into the inventory so that the shares and compulsory inheritance rights could be correctly calculated.

The Portuguese Civil Code governed succession to all properties of a Goan domicile situated anywhere in India.
The Indian Succession Act did not govern the Bombay property.
Probate did not extinguish the substantive inheritance rights of compulsory heirs.
The property was ordered to be included in the Goa inventory proceedings.
Use this case for: extraterritorial application within India of Goan succession law to property of a Goan domicile.