Jose Paulo Coutinho v.

Maria Luiza Valentina Pereira, 2019 SCC OnLine SC 1190, decided

on 13.09.2019 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.

No Attempt Made To Frame Uniform Civil Code Despite Judicial Exhortation, Says SC
[Read Judgment]

Ashok Kini

13 Sep 2019 6:35 PM

JOSE PAULO COUTINHO v. MARIA LUIZA VALENTINA PEREIRA & ANR Sep. 13,
2019 .
"Goa is a shining example of an Indian State which has a uniform civil code applicable to all,
regardless of religion except while protecting certain limited rights."
The Supreme Court observed that no attempt has been made yet to frame a Uniform Civil Code
applicable to all citizens of the country despite exhortations by it.

Justice Deepak Gupta, speaking for the bench, also remarked that Goa is a shining example of
an Indian State which has a uniform civil code applicable to all, regardless of religion except
while protecting certain limited rights.

The bench, also comprising of Justice Aniruddha Bose made these observations in Jose Paulo
Coutinho vs. Maria Luiza Valentina Pereira while holding that it will be the Portuguese Civil
Code, 1867 as applicable in the State of Goa, which shall govern the rights of succession and
inheritance even in respect of properties of a Goan domicile situated outside Goa, anywhere in
India.

No Attempt To Frame A Uniform Civil Code

In the judgment, Justice Gupta said:

It is interesting to note that whereas the founders of the Constitution in Article 44 in Part IV
dealing with the Directive Principles of State Policy had hoped and expected that the State shall
endeavour to secure for the citizens a Uniform Civil Code throughout the territories of India, till
date no action has been taken in this regard. Though Hindu laws were codified in the year 1956,
there has been no attempt to frame a Uniform Civil Code applicable to all citizens of the country
despite exhortations of this Court in the case of Mohd. Ahmed Khan vs. Shah Bano and Sarla
Mudgal & Ors. vs. Union of India & Ors.

Goa is a Shining Example

Explaining the salient features of Portuguese Civil Code, the bench further said:

However, Goa is a shining example of an Indian State which has a uniform civil code applicable
to all, regardless of religion except while protecting certain limited rights. It would also not be
out of place to mention that with effect from 22.12.2016 certain portions of the Portuguese Civil
Code have been repealed and replaced by the Goa Succession, Special Notaries and Inventory
Proceedings Act, 2012 which, by and large, is in line with the Portuguese Civil Code. The salient
features with regard to family properties are that a married couple jointly holds the ownership of
all the assets owned before marriage or acquired after marriage by each spouse. Therefore, in
case of divorce, each spouse is entitled to half share of the assets. The law, however, permits
prenuptial agreements which may have a different system of division of assets. Another
important aspect, as pointed out earlier, is that at least half of the property has to pass to the legal
heirs as legitime. This, in some ways, is akin to the concept of 'coparcenary' in Hindu law.
However, as far as Goa is concerned, this legitime will also apply to the self-acquired properties.
Muslim men whose marriages are registered in Goa cannot practice polygamy. Further, even for
followers of Islam there is no provision for verbal divorce.

SC's Exhortation For A Uniform Civil Code

Mohd. Ahmed Khan vs Shah Bano Begum (1985)

The then Chief Justice of India YV Chandrachud, speaking for the Constitution bench which
delivered the landmark judgment had made these observations:
It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It
provides that "The State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India". There is no evidence of any official activity for framing a
common civil code for the country. A belief seems to have gained ground that it is for the
Muslim community to take a lead in the matter of reforms of their personal law. A common Civil
Code will help the cause of national integration by removing disparate loyalties to laws which
have conflicting ideologies. No community is likely to bell the cat by making gratuitous
concessions on this issue. It is the State which is charged with the duty of securing a uniform
civil code for the citizens of the country and, unquestionably, it has the legislative competence to
do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one
thing, the political courage to use that competence is quite another. We understand the
difficulties involved in bringing persons of different faiths and persuasions on a common
platform But, a beginning has to be made if the Constitution is to have any meaning. Inevitably,
the role of the reformer has to be assumed by the courts because, it is beyond the endurance of
sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of
courts to bridge the gap between personal Laws cannot take the place of a common Civil Code.
Justice to all is a far more satisfactory way of dispensing justice than justice from case to case.

Sarla Mudgal vs Union Of India (1995)

This judgment authored by Justice Kuldip Singh began with this note:

"The State shall endeavour to secure for the citizens a uniform civil code through-out the
territory of India" is an unequivocal mandate under Article 44 of the Constitution of India which
seeks to introduce a uniform personal law - a decisive step towards national consolidation.
Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a
uniform civil code, in the Parliament in 1954, said "I do not think that at the present moment the
time is ripe in India for me to try to push it through". It appears that even 41 years thereafter,
the Rulers of the day are not in a mood to retrieve Article 44 from the cold storage where it is
lying since 1949. The Governments - which have come and gone - have so far failed to make any
effort towards "unified personal law for all Indians". The reasons are too obvious to be stated.
The utmost that has been done is to codify the Hindu law in the form of the Hindu Marriage Act,
1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the
Hindu Adoptions and Maintenance Act, 1956 which have replaced the traditional Hindu law
based on different schools of thought and scriptural laws into one unified code. When more than
80% of the citizens have already been brought under the codified personal law there is no
justification whatsoever to keep in abeyance, any more, the introduction of "uniform civil code"
for all citizens in the territory of India.

John Vallamattom vs Union Of India (2003)

In this judgment, the then Chief Justice of India VN Khare had observed:

Before I part with the case, I would like to state that Article 44 provides that the State shall
endeavour to secure for the citizens a uniform civil code throughout the territory of India. The
aforesaid provision is based on the premise that there is no necessary connection between
religious and personal law in a civilized society. Article 25 of the Constitution confers freedom
of conscience and free profession, practice and propagation of religion. The aforesaid two
provisions viz. Articles 25 and 44 show that the former guarantees religious freedom whereas the
latter divests religion from social relations and personal law. It is no matter of doubt that
marriage, succession and the like matters of a secular character cannot be brought within the
guarantee enshrined under Articles 25 and 26 of the Constitution. Any legislation which brings
succession and the like matters of secular character within the ambit of Articles 25 and 26 is a
suspect legislation. Although it is doubtful whether the American doctrine of suspect legislation
is followed in this country....

...It is a matter of regret that Article 44 of the Constitution has not been given effect to.
Parliament is still to step in for framing a common civil code in the country. A common civil
code will help the cause of national integration by removing the contradictions based on
ideologies. For the reasons aforementioned, this writ petition is allowed and Section 118 of the
Indian Succession Act is declared unconstitutional being violative of Article 14 of the
Constitution of India.

Law Commission of India's view: Formulation of a UCC is neither necessary nor desirable
at this stage.
In its consultation paper on 'Reform of Family Law' , the Law Commission had highlighted the
importance of recognition of difference that exists in the Indian society and opined that
formulation of a Uniform Civil Code is neither necessary nor desirable at this stage.

While diversity of Indian culture can and should be celebrated, specific groups, or weaker
sections of the society must not be dis-privileged in the process. Resolution of this conflict does
not mean abolition of difference. This Commission has therefore dealt with laws that are
discriminatory rather than providing a uniform civil code which is neither necessary nor
desirable at this stage. Most countries are now moving towards recognition of difference, and the
mere existence of difference does not imply discrimination, but is indicative of a robust
democracy.