GOAN SUCCESSION LAWS: A COMPARISON WITH HINDU

SUCCESSION LAWS

(Assignment towards the fulfilment of the Continuous Assessment –1 in

the subject of Insolvency and Bankruptcy Code)

SUBMITTED TO: SUBMITTED BY:

Ms. Preeti Badola Lipika Singla & Tanvi Kaushal
Assistant Professor Roll No. (1906) Roll No. (1954)
Faculty of Law Semester: VII (Section B)
National Law University, Jodhpur” B.A., LL.B. (Business Hons.)

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION
(JULY – NOVEMBER 2023)
 TABLE OF CONTENT

INTRODUCTION..............................................................................2

DEVOLUTION OF PROPERTY UNDER GOAN LAW..........................2

DEVOLUTION OF PROPERTY UNDER THE ACT AND INVENTORY PROCEEDINGS. .2

COMMUNITY PROPERTY...............................................................................4

ROLE OF THE CABECA DE CASAL AND COMPARISION WITH

HINDU PERSONAL LAW..................................................................4

A FEMINIST UNDERSTANDING OF GOAN LAWS – TO WHAT

EXTENT DO GOAN LAWS PROMOTE AN ATMOSPHERE OF

GENDER EQUALITY AND CAN THEY BE USED AS A BLUEPRINT

FOR A UNIFORM CIVIL CODE IN INDIA?.......................................6

CONCLUSION.................................................................................. 7

BIBLIOGRAPHY...............................................................................8

1
INTRODUCTION

Article 44 in Part IV of the Indian Constitution, which called for the

establishment of a Uniform Civil Code in India, is arguably the most
popular and controversial Direct Principle of State Policy in the history of
independent India. After the Supreme Court, in the landmark judgement
of Mohd. Ahmed Khan v Shah Bano Begum1, called for the adoption of a
Uniform Civil Code pan-India, plenty of debate has ensued around the
same.

In this debate surrounding the Uniform Civil Code, Goa plays an

important role. This is because Goa is the only state in India which a
common civil code for all its citizens, and thus it is often used as an
example of the successful operation of common civil code in an Indian
state. The reason behind this that unlike most of India, which was
colonized by the British, the territory of Goa was colonized and occupied
by the Portuguese, and received independence a while later than the rest
of India, in 1961. The civil code in Goa is the legacy of this nearly 400
years-long Portuguese rule. The Goan Civil Code is based on the
Portuguese Civil Code of 1867.2 The Portuguese Civil Code of 1867 was
extended to its overseas provinces by a decree in 1869, and thus, Goa
came to be ruled by a civil code which none of its surrounding regions
would see for centuries to come.

DEVOLUTION OF PROPERTY UNDER GOAN LAW

Section 8 in Chapter II of the Act lays down the provisions for opening of
the succession after the passing of the intestate. The jurisdiction of the
succession proceedings is determined on the basis of the residence of the
estate leaver and where their properties were situated. Section 9 of the
Act classifies all the persons which can succeed as heirs of the estate
1
AIR 1985 SC 945.
2
Dr. Dário Moura Vicente, Family Law in Goa After the Act of 2012: Key Concepts in the
Portuguese Civil Code of 1867 and The Code of Gentile Hindu Usages and Customs of
1880 (Lecture delivered in the Goa High Court on 6 February 2020 at the session
organized by the Goa State Legal Services Authority in association with the Goa High
Court Bar Association.)

2
leaver in question. Any person born or conceived when the inheritance
opens is competent to succeed, unless the Act explicitly states otherwise.
However, the State as a successor would be exempted from this
provision. Even a child who has not yet been born may be an heir to the
inheritance, if the estate leaver left a testamentary instrument naming
the said unborn child as their successor. There is nothing which bars
juridical entities from being heirs to an inheritance.3

DEVOLUTION OF PROPERTY UNDER THE ACT AND INVENTORY

PROCEEDINGS

The inventory proceedings are held in open court. The petition to start
inventory proceedings can be filed before a court having jurisdiction by
any interested party. The petition must contain the estate leaver’s death
certificate, the jurisdiction clause, the value of the succession being
opened, whether there are any minors in the line of succession and also
the details of the person who shall discharge the role of the Casa de
Cabel. The Casa de Cabel is the concept of the Head of Family under
Goan Law, which arises only at the at the time of inheritance
proceedings.4

It must be noted that the Goan law is applicable to those Goans who
reside outside of Goa as well, even if the concerned person has
immovable properties situated outside of Goa in some other state. Such
properties would be partitioned under the Goan law and not according to
laws of the state in which they are situated. These properties must be
taken into consideration when calculating inheritance during the
inventory proceedings. This was held by the Supreme Court in the case
of Jose Paulo Coutinho v. Maria Luiza Valentina Pereira & Another 5.

Further, Section 53 rules that unless the latter has been given the right
of representation by the virtue of law, the relative who is closer in degree

3
Section 9 (1), (2) of the Goa Succession, Special Notary and Inventory Proceedings
Act, 2012
4
Nagesh S. Colvalkar & Gouresh Gurudas Bugde, A Critical Evaluation on Inventory
Proceedings in the Realm of Family Laws in Goa, International Journal of Humanities
and Social Sciences, Vol. 9, Issue 1, Dec–Jan 2020; 153–160
5
2019 SCC OnLine SC 1190.

3
to the deceased estate leaver shall exclude the more remote relatives.
For the relatives who have the same degree of proximity, the inheritable
assets shall devolve per capita.6

Chapter VIII of the Act further elaborates on the order of succession.

Section 68 underlines the gender-neutral character of inheritance under
Goan Succession Law, as it lays down that children and their
descendants will succeed the parents and other ascendants, “without any
distinction of age and sex”. The rule of equality is also highlighted
expressly in the wording of Section 71, which says that when heirs who
are not of the first degree succeed by the right of representation, they
shall succeed not per capita, but per stripes, in which the assets shall be
divided and sub-divided within the branches of heir, and that the rule of
equality shall be followed in such division and sub-division.

The Civil Code of 1867 defines marriage as “a contract between two

persons of different sex”7. This must be noted as an attempt to give the
institution of marriage a secular character, as it has been given the
nature of a contract and there has been a deliberate omission of the
sacramental character of marriage, which is so in both Hindu and
Christian traditions.8 Another notable feature of marriage under Goan
law is that a marriage, in order to be recognized as valid in the eyes of
the law, must be registered before the civil registrar. 9

Under Portuguese Law, in case there is no express agreement

between the couple stating otherwise, the law of community
property would apply automatically. In fact, 98% of marriages in Goa
take place under the law of Community Property.10

COMMUNITY PROPERTY

The system of absolute community of property treats all the assets which
the spouses acquire during the course of their marriage as owned jointly.

6
Section 54 of the Goa Succession, Special Notary and Inventory Proceedings Act,
2012.
7
Article 1056 of the Portuguese Civil Code of 1867.
8
Ibid note 3.
9
Section 1057 of the Code of 1867.
10
Ibid note 6.

4
Article 1108 of the Code of 1867 lays down the specifications of the
nature of community property, and includes the ownership of all assets
which the each of the spouse, as well as such property which is due to
them through inheritance. Such property is administered by the
husband11, but it cannot be disposed of or encumbered in any way
without the express consent of both the spouses.12

This system of community of property has an effect on the law of

inheritance also. Under this system, when one spouse passes away, the
surviving spouse is entitled, in the first instance, to half of the total
assets of the deceased spouse, while the rest half devolves upon the
heirs.13

If the spouses wish to make any agreement or settlement to rule out the
operation of the law of community of property, such agreement, also
known as a pre-nuptial agreement, must be entered into before the
marriage takes place.14.

ROLE OF THE CABECA DE CASAL AND COMPARISION WITH

HINDU PERSONAL LAW

The concept of the Cabeca de Casal, in the first instance, appears

strikingly similar to the concept of Karta under Hindu personal law, in
the sense that both have the designation of head of family, and carry out
the role of manager of estate in some capacity or other. However, as we
have already read, there are a good number of dissimilarities as well.

Hindu personal law embodies the unique concept of a Joint Family. Each
member of a Joint Family owes certain duties and obligations to one
another, and each member has distinct rights over the the property
which is owned in the family’s name. The Karta of a Joint Hindu Family
manages the joint family property and represents the family in all

11
Article 1117 of the Code of 1867.
12
Article 1119 of the Code of 1867.
13
Dr. Poonam Pradhan Saxena, Family Law – II, (Third Ed.) LexisNexis, pp 513.
14
Usgaocar M.S., Family Laws of Goa, Daman and Diu Volume II (2nd Reprint, Vela
Associates, 1994).

5
matters and disputes.15 In fact, Karta can also be referred to as the
Manager of the family. The position of the Karta is determined by
seniority, and it is usually the senior most male member who is the Karta
of the family.16 Unlike under Goan law, wherein the Cabeca de Casal is
appointed after discussion and consent of the family of the estate leaver,
the members of a Joint Hindu Family do not have a say as to who shall be
the Karta. However, after the 2005 Amendment to the Hindu Succession
Act, 195617, a woman can also be a Karta, however, it must be a daughter
in the family and not a wife.

This is where we see the distinction between the role of the Karta and
that of the Cabeca de Casal. The role of the Cabeca de Casal arises only
at the time when the inheritance opens, and as soon as the inventory
proceedings are over and the property has devolved upon the legal heirs,
the role of the Head of Family ceases. On the other and, the role of Karta
is a permanent one, and he or she is perpetually responsible for
managing the family estate. A new Karta must be appointed in case the
current Karta dies either a civil or natural death. Moreover, the Cabeca
de Casal has no power whatsoever to dispose of or alienate the assets
under their supervision while the inventory proceedings are being
carried out. The Karta, on the contrary as the power to alienate the
family property for the benefit of the family, or for legal necessity, with
the consent of all the coparceners, and such alienation would be binding
on all the family members.18

While the Cabeca de Casal is duty-bound to keep a financial record of the

inheritance assets and the transactions made regarding those while they
are under his custody and send the same to the Court 19, the Karta is not
bound to keep an account of the family funds. 20 The only time when a
Karta can be asked to render accounts is when the family is being

15
Ibid note 21.
16
Lalbarani v. Bhutnath, AIR 1974 Cal 109.
17
Section of the HSA, 1956 (as amended in 2005).
18
VVV Ramaraju v. Korada Malleswara Rao, (1999) 2 HLR 257 (AP).
19
Ibid note 24.
20
Girijanandini Devi v. Brijendra Narain, AIR 1967 SC 1124.

6
partitioned, and even then, he cannot be forced to give details of past
accounts, unless there are charges of fraud on him.21

Finally, of course the difference once again lies in the language of the Act
of 2012, which provides that any person can be appointed as Cabeca de
Casal, and does not specify whether it must be a male or female. On the
other hand, the position of Karta has traditionally been reserved for the
men of the family, in fact the patriarch of the family, and only very
recently has the position been opened to females, that too with the
qualification that only a daughter of the family can be the Karta, and not
a wife or a widow.

A FEMINIST UNDERSTANDING OF GOAN LAWS – TO WHAT

EXTENT DO GOAN LAWS PROMOTE AN ATMOSPHERE OF
GENDER EQUALITY AND CAN THEY BE USED AS A BLUEPRINT
FOR A UNIFORM CIVIL CODE IN INDIA?

One of the admirable things about the Goan Civil Code is that it was
incredibly ahead of its time, setting an example which the personal laws
in the rest of the country still have not been able to fully live up to, in
spite of several amendments. The Code has been successful in achieving
a remarkable standard of uniformity. However, it has been argued that
uniformity does not always necessarily equal equality.

In fact, even Goa has not been able to achieve perfect uniformity as far as
the different communities are concerned. The procedure for
registration for marriage in the state is different from Catholics
and non-Catholics.22 While the registration of marriage before the Civil
Registrar is compulsory, what is considered actual marriage in most
communities is the religious ceremony, and the registration is only
considered a paper formality.23

21
Bappu Ayyar v. Renganayaki, 1955 Mad 394.
22
The Code of 1867.
23
Dr. Albertina Almeida, Goa's Civil Code Shows That Uniformity Does Not Always Mean
Equality, The Wire, (Published on 8/08/16). Accessed on 7 May,
2021https://thewire.in/law/goas-uniform-civil-code-is-not-the-greatest-model-to-follow.

7
Similarly, when different forms of marriage are recognized, it also a
given that there would be different forms of divorce as well. For
example, a Catholic marriage has the option of being annulled before the
Church on the grounds of non-consummation of marriage, and such an
annulment would be automatically confirmed by the High Court.
However, in divorce proceedings before the Civil Court, non-
consummation of marriage would not be a ground for divorce for
Catholics or any other community. Thus, this unique form of annulment
before the Church is only to Catholics in Goa.24

The Code of Gentile Hindu Usages and Customs of Goa, 1880

recognizes the customs and usages of Hindus in the Goan territory. The
Code, although rarely invoked by the Hindus in the state 25, who prefer to
go by the Code of 1967, has not been revoked or amended by the Indian
Government after independence and is still in force.

However, even then it must be appreciated that the Goan Code is much
more gender-neutral and non-discriminatory than the laws in force in the
rest of the country, especially considering the time period when it came
into force.

CONCLUSION

The Goan Code has been constantly brought up whenever there is

discussion around the Uniform Civil Code. Many people have given the
example of its functioning in Goa to put forward the idea that a similar
code in the rest of the country would go a long way in removing
inequalities among different communities, and especially women
belonging to minority communities.

In fact, while the debate around the Uniform Civil Code has come into
the wider public domain largely in the past few years, in the legal and
judicial sphere, the discussion goes as far back as 1979, when the Chief
Justice of India at that time, Justice Y.V. Chandrachud, at conference
organized by the Goa, Daman and Diu Bar Association, made the
24
Ibid.
25
Ibid note 3.

8
following observation: “ It is heartening to find that the dream of a
uniform civil code in the country finds its realization in the Union
Territory of Goa, Daman and Diu. In my view it would be a retrograde
step if Goa too were to give up uniformity in its personal laws which it
now possesses.”26Thus, Goa’s Civil Code was hailed as an example for a
potential Civil Code for the whole of India by the then Chief Justice even
as early as 1979.

However, from our discussion above, we have seen that having a uniform
code does not always entail the all-encompassing equality that it has
been portrayed for so long. Uniformity can often lead to uniformity in
discrimination as well, and that imposing an idea of ‘uniformity’ among
unequal groups or people more often leads to inequality rather than
equality.27 Another worrying trend which has emerged in recent times is
that nationalist agendas are pushing for a uniform civil code which may
have motives other than a call for equality, and often to the detriment of
human rights and the interests of minorities. In fact, the Consultation
Paper on the Reform of Family Law 28, the Law Commission recommended
against a UCC, stating that it is “neither desirable nor necessary at this
stage”. Rather it suggested amendments to existing personal laws to deal
with the issues of inequality and women’s rights, rather than doing away
entirely with the different personal laws. It also suggested codification
of certain aspects of personal laws to limit the ambiguity in
interpretation and application of these personal laws.

BIBLIOGRAPHY

Cases –

26
Ibid note 6.
27
Ibid note 59.
28
Law Commission of India, Consultation Paper on the Reform of Family Law, 31 August
2018.

9
 o Mohd. Ahmed Khan v Shah Bano Begum AIR 1985 SC 945.
o Lalbarani v. Bhutnath, AIR 1974 Cal 109.
o Mrs Sujata Sharma v Shri Manu Gupta & Ors 2015 SCC OnLine Del
14424.

o Lalitha Kumari v. Rajah of Vizianagram, 1954 Mad 19.

o VVV Ramaraju v. Korada Malleswara Rao, (1999) 2 HLR 257 (AP).

o Girijanandini Devi v. Brijendra Narain, AIR 1967 SC 1124.

o Bappu Ayyar v. Renganayaki, 1955 Mad 394.

o Shabana Bano v. Imran Khan AIR 2010 SC 305.

o Iqbal Bano v. State of Uttar Pradesh & Anr. (2007) 6 SCC 785.

o Shayara Bano v. Union of India & Ors. (2017) 9 SCC 1.

Books –

o Dr. Poonam Pradhan Saxena, Family Law – II, (Third Ed.)

LexisNexis.

o Usgaocar M.S., Family Laws of Goa, Daman and Diu Volume II (2nd
Reprint, Vela Associates, 1994).

o Da Costa Mario Bruto, Law of Succession, (Published by Mario

Bruto da Costa, Panjim Goa).

Articles –

o Singh, Akhilendra Pratap. “UTILITY OF UNIFORM CIVIL

CODE.” Journal of the Indian Law Institute, vol. 59, no. 2, 2017.

o Nagesh S. Colvalkar & Gouresh Gurudas Bugde, A Critical

Evaluation on Inventory Proceedings in the Realm of Family Laws
in Goa, International Journal of Humanities and Social Sciences,
Vol. 9, Issue 1, Dec–Jan 2020.

o Devendra Damle, Siddharth Srivastava, Tushar Anand, Viraj Joshi

and Vishal Trehan, Gender discrimination in devolution of property

10
 under Hindu Succession Act, 1956, NIPFP Working paper series,
No. 305 (25.05.2020).

Legislations –

o Portuguese Civil Code of 1867.

o The Goa Succession, Special Notary and Inventory Proceedings

Act, 2012.

o Hindu Succession Act, 1956.

o The Parsi Marriage and Divorce Act, 1936.

o The Code of Gentile Hindu Usages and Customs of Goa, 1880.

Online Resources –

o Margaret Mascarenhas, Goa’s Civil Code

https://mmascgoa.tripod.com/id12.html

o Aridane cara Santos, What Absolute Community of Property Is

(Family Code), www.slideshare.net

o Dr. Albertina Almeida, Goa's Civil Code Shows That Uniformity

Does Not Always Mean Equality, The Wire, (Published on 8/08/16).
Accessed on 7 May, 2021https://thewire.in/law/goas-uniform-civil-
code-is-not-the-greatest-model-to-follow.

Other resources –

o Law Commission of India, Consultation Paper on the Reform of

Family Law, 31 August 2018.

o Dr. Dário Moura Vicente, Family Law in Goa After the Act Of 2012:
Key Concepts in the Portuguese Civil Code of 1867 and the Code of
Gentile Hindu Usages and Customs of 1880 (Lecture delivered in
the Goa High Court on 6 February 2020 at the session organized by
the Goa State Legal Services Authority in association with the Goa
High Court Bar Association.).

11
12