JOSE PAULO COUTINHO versus MARIA LUIZAVALENTINA PEREIRA & ANR.

Citation: [2019] 12 S.C.R. 390 · Decided: 13-09-2019 · Supreme Court of India · Bench: DEEPAK GUPTA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
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JOSE PAULO COUTINHO
v.
MARIA LUIZAVALENTINA PEREIRA & ANR.
(Civil Appeal No. 7378 of 2010)
SEPTEMBER 13, 2019
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ]
Portuguese Civil Code, 1867:
Whether Portuguese Civil Code, a foreign law – Applicability
of principles of private international law, to the Code – Held:
Portuguese law which may have had foreign origin became a part
of the Indian laws – It is an Indian law and no longer a foreign law
– Goa is a territory of India, all domiciles of Goa are citizens of
India – Portuguese Civil Code is applicable only on account of the
Goa, Daman and Diu (Administration) Ordinance, 1962 and the
Goa, Daman and Diu (Administration) Act, 1962 – Thus, the
Portuguese Civil Code is an Indian law and no principles of private
international law are applicable – Goa, Daman and Diu
(Administration) Act, 1962.
Property of a Goan domicile outside the territory of Goa, if
governed by the Code or by Indian Succession Act or by personal
laws, as applicable in the rest of the country – Held: Domicile of
Goa, who starts living in Bombay or in any other part of India,
cannot be said to be Portuguese and he cannot be said to be living
in a foreign country – This person is only a Goan domicile living
outside Goa in India, which is his country – 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 s. 5 of the Indian Succession Act or the laws of succession
would not be applicable to such Goan domiciles – Indian Succession
Act, 1925.
Grant of probate by the High Court of Bombay at Goa in
respect of the Will executed by the father – Effect of, on the laws of
inheritance – Held: Jurisdiction of a probate court is limited to
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decide whether the Will is genuine or not – Grant of probate will
not in any manner affect the rights of inheritance of all the legal
heirs of the deceased – Portuguese Civil Code, 1867 as applicable
in the State of Goa, shall govern the rights of succession and
inheritance even in respect of properties of a Goan domicile situated
outside Goa, anywhere in India.
Interpretation of statutes: Principle of – Held: When there is
a conflict between the general law and the special law then the
special law shall prevail – This principle will apply with greater
force to special law which is also additionally a local law – Its
based on the latin maxim generalia specialibus non derogant i.e.
general law yields to special law should they operate in the same
field on the same subject.
Allowing the appeal, the Court
HELD: 1.1 The Civil Code may be a Code of Portuguese
origin but after conquest and annexation of Goa, Daman and Diu,
this Code became applicable to the domiciles of Goa only by virtue
of the Ordinance and thereafter, by the Act. Therefore, the Civil
Code has been enforced in Goa, Daman and Diu by an Act of the
Indian Parliament and thus, becomes an Indian law. [Para 14]
[402-E-F]
1.2 In so far as the continuance of old laws is concerned,
the new sovereign is not bound 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. As far as the instant
case is concerned, firstly the President by an Ordinance and later
Parliament by an Act of Parliament decided that certain laws, as
applicable to the territories of Goa, Daman and Diu prior to its
conquest, which may be referred to as the erstwhile Portuguese
laws, would continue in the territories. It was, however, made
clear that these laws would continue only until amended or
repealed by competent legislature or by other competent
authority. Thus, these laws would not have been applicable unless
JOSE PAULO COUTINHO v. MARIA LUIZAVALENTINA
PEREIRA & ANR.
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SUPREME COURT REPORTS
[2019] 12 S.C.R.
recognised by the Indian Government and the Portuguese Civil
Code continued to apply in Goa only because of an Act of the
Parliament of India. Therefore, the Portuguese law which may
have had foreign origin became a part of the Indian laws, and, in
sum and substance, is an Indian 

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