Bombay High Court

Papiya Sarkar And Anr vs Som Subhra Sarkar (Since Deceased) on 1 August, 2024

2024:BHC-GOA:1224
2024:BHC-GOA:1224                                 WP-1379-2024 F.DOC




           Meena
                          IN THE HIGH COURT OF BOMBAY AT GOA
                          WRIT PETITION NO.1379 OF 2024 (FILING NO.)

           1       Ms. Papiya Sarkar,                       .....Petitioners
                   Widow of Som. Subhra Sarkar,
                   69 years of age, Housewife,
                   Married, Indian National,
                   Residing at House No.B,
                   784, Sushant Lok Phase-1,
                   Galleria, DLF IV, S.O., Gurgaon, Haryana
                   122009.

           2. Mr. Yzudhamanyue Sarkar
              Son of Late Som. Subhra Sarkar,
              43 years of age, Business,
              Single, Indian National,
              Residing at House No.B,
              784, Sushant Lok Phase-1,
              Galleria, DLF IV, S.O., Gurgaon, Haryana
              122009.

                   v/s.

                   Mr. Som Subhra Sarkar (since deceased)                      .....Respondent
                   Son of Late Mohit Chandra Sarkar,
                   Married, Indian National,
                   Resident of House No.B,
                   784, Sushant Lok Phase-1,
                   Galleria, DLF IV, S.O.,
                   Gurgaon, Haryana 122009.

           Mr. Iftikhar Agha with Ms. Valencia Fernandes, Advocates for the

           Petitioners.

                               CORAM:                                  BHARAT P. DESHPANDE, J

                               RESERVED ON:                            10th July,2024.

                               PRONOUNCED ON:                          01st August, 2024
           JUDGMENT :

1. Rule. Rule is made returnable forthwith.

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2. The matter is taken up for final disposal at the admission

stage as it is necessary to decide the question of Forum before

whom applications under Section 372 r/w. Section 370 of the

Indian Succession Act,1925 would lie for the grant of Certificate

of Succession.

3. Heard Mr. Iftikar Agha, learned Counsel appearing for the

Petitioners.

4. The application was filed before the learned Civil Judge,

Senior Division, Bicholim for grant of Heirship Certificate under

the provisions of Indian Succession Act. Though such

application was entertained, it was rejected only on the ground

that such applications are dealt with by the District Court.

5. Mr. Agha placed some of the orders on record passed by

the Civil Court and more specifically in Vasco wherein such

applications for grant of Succession Certificate were entertained

and disposed of by the Civil Judge Senior Division. He would

submit that the provisions of the Indian Succession Act, 1925 are

not brought into force in Goa till date and therefore the Forum

provided under the said Act for the purpose of grant of

Succession Certificate cannot be applied to the Courts in Goa.

He submits that Section 371 of the Indian Succession Act

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provide that the District Judge within whose jurisdiction the

deceased ordinarily resides at the time of his death or if at that

time he had no fixed place of residence, the District Judge

within whose jurisdiction any part of the property of the

deceased may be found, may grant a Certificate under the said

Act, would mean that the Court of competent jurisdiction

dealing with succession in the State of Goa.

6. Mr. Agha would submit that the party cannot have a right

to choose Forum and it is as per the local laws which are

prevalent in the State of Goa, the jurisdiction would be conferred

on such Courts to decide the matters regarding succession.

7. Mr. Agha would further states that in the State of Goa the

The Goa Succession, Special Notaries and Inventory Proceeding

Act,2012 provides different procedure wherein there is no

question of grant of Succession Certificate but a succession is

decided during inventory proceedings. He submits that the

effect of deciding succession during inventory proceedings

would clearly mean that the competent Court upon the valuation

of the inventory will have power to decide such issue.

8. Mr. Agha would further submit that the Civil Courts are

empowered to deal with the inventory proceedings which

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include succession and therefore the Civil Courts in Goa will

have jurisdiction to grant Succession Certificate as if the same is

provided for the parties who are not governed by the Goan laws.

He submits that parties carry their own personal laws and

therefore the Petitioners in the present matter being non-goan

and Hindus, are entitled to apply for Succession Certificate on

the ground that the deceased lastly resided or left immovable

properties within the jurisdiction of the concerned Civil Court.

9. Mr. Agha would submit that the learned trial Court, while

rejecting the application, considered the decision in the case of

Monica Variato v/s. Thomas Variato [2000(2) Goa L.T.

149], but failed to consider its ratio properly.

10. The Petitioners preferred an application for grant of

Succession Certificate under the provisions of Section 372 r/w.

370 of the Indian Succession Act 1925. In the said application it

is specifically claimed that they and the deceased are non-Goans

Hindus by religion. It is also claimed that the deceased by name

Som Subhra Sarkar left property situated in Naneli of Satari

taluka which he purchased somewhere in the year 2000. Such

property is situated within the territorial jurisdiction of the Civil

Court at Bicholim. The Application further disclosed that all the

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Applicants are having equal right, title and interest in the

property left by the deceased and since there is no conflict

between the legal heirs, Certificate to that effect be issued. The

Applicant also claimed that the learned Civil Court is having

jurisdiction to grant such Certificate.

11. Since there is no contesting party in such proceedings, the

only question before the Court is whether the parties applying

for succession are entitled to such Certificate under the Indian

Succession Act and whether the deceased left properties within

the jurisdiction of the concerned Court.

12. By the impugned order, though the learned trial Court

considered the fact that the parties are non-Goan and they are

governed by the Indian Succession Act, dismissed such

application only on the premise that in the State of Goa

Succession Certificate are issued by the District Court and

therefore the Civil Court is having no jurisdiction.

13. The learned trial Court in paragraph 10 considered the

decision in the case of Monica Variato (supra) which was cited

by the learned Counsel stating that the Court has got

jurisdiction, but there is no discussion on this judgment. The

application was rejected only on the ground that such

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proceedings were taken up by the District Court in the State of

Goa.

14. First of all the observations of the learned trial Court that

such applications are entertained only by the District Court is

not supported by any material. Even otherwise, the learned Civil

Court could have allowed the parties to approach the District

Court by filing an application for transfer instead of dismissing

such application. Be that as it may, decision in the case of

Monica Variato(supra) would clearly go to show that the Civil

Court who is dealing with the succession matters in the

inventory proceedings, is the Competent Court to grant such

Certificate. This fact has not been considered by the learned trial

Court and accordingly passed the impugned order.

15. In the case of Monica Variato(supra), it was observed

that the provisions of Special Marriage Act,1954 was not

extended to the State of Goa. Similar is the fact with the Indian

Succession Act,1925. The discussion as to which Court is having

jurisdiction to entertain the application under the Special

Marriage Act was considered and finally it has been observed in

paragraph 13, 14 and 15 as under:

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"13. Having said so, considering the facts of this case, we will have to answer the question as to which is the law the appellant and the respondent would be governed by. The marriage admittedly was solemnized under the Special Marriage Act at Mumbai. The appellant and respondent thereafter are domiciled and/or have their habitual residence in Goa. If the tests of Private International Law are applied, the law to be applied would be the law as applicable in the State of Goa. In that situation the Special Marriage Act would not apply. The view above would be the view if principles of English Private International Law are made applicable and some observations of the Apex Court. The principles of Private International Law are not universal. They vary from State to State. What may be applicable in one State may not be applicable in another State. In the instant case we are not really concerned with a marriage that took place in a foreign country. We are concerned with a marriage that took place in a Constituent State of the Union. Each community based on their religion have their own personal laws in the rest of the country except where these laws are not extended. Goa is one such place. For the purpose of Private International Law the marriage solemnized at Mumbai can be said to be a marriage in a foreign country. If the rules of Private International Law are to be applied, then if parties are domiciled and/or have their habitual residence in Goa, proceedings for divorce would be as per the law in force in the State of Goa. That would create difficulties insofar as marriages performed under personal laws prevailing in the Constituent States of the Union. Personal Laws of each community are recognised. To that extent Private International Law insofar as marriage or divorce is concerned, would be the personal law and it is that personal law which would be applicable. This approach has been considered amongst Hindus governed by the Mitakshera or Dayabhag School. In such a situation

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insofar as appellant and respondent are concerned, it would be the Special Marriage Act Such a view has been taken by the Rajasthan High Court in a case where marriage was solemnized in England but the husband came to reside in Rajasthan. The appellant, however, has approached this Court on the ground that they are domiciled in Goa and as such the Goan law would apply. Alternatively it was contended that the respondent was of Goan origin. Being of Goan origin irrespective of the fact that he was residing in Mumbai he would still be governed by the Portuguese Law of Divorce applicable to the State of Goa. There is no evidence on record to give any finding on that count. To give a finding it would have to be considered whether the respondent at the time of his marriage was a citizen of India or had continued to maintain Portuguese nationality at the time of Liberation or when the Citizenship Order conferring citizenship to Portuguese nationals of Goan origin was passed. In that kind of situation, it would be the Law of Divorce as prevailing in the State of Goa. Insofar as residence of the wife is concerned, it would be immaterial as in Indian Law the domicile of the husband would be the domicile of the wife.

14. The Special Marriage Act has, however, not been extended to the State of Goa. What then would be the forum to decide the issue in the State of Goa. There can be no vested right in a forum. Private International Law accepts that the forum and procedure as to the extent applicable will be the law of domicile. In that view of the matter it will be the civil Court exercising jurisdiction in divorce matters in the State of Goa that will hear and decide the petition.

15. With that the answers to the questions formulated are as under:-

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(1). If the Special Marriage Act applies, it is the competent Court of civil jurisdiction deciding matrimonial matters which is the Court in which the petition would be filed.

(2)(a). We hold that even applying the principles of Private International Law, bearing in mind various personal laws in this country, even though the spouses are domiciled in Goa in respect of a marriage performed outside Goa but in any other State of the Union they would be governed by their personal laws insofar as dissolution of marriage is concerned.

(2)(b). There is no material on record to hold that at the time of marriage the respondent was governed by the personal law in force in Goa including divorce.

(3). Consent for granting divorce by mutual consent must not only exist at the time when presenting the petition and at the passing of the provisional Decree, it must also continue till the date of the final decree. If any party remains absent or withdraws the consent, the Court would have no jurisdiction to grant decree of divorce by mutual consent."

16. The matter with regard to succession are admittedly

considered by Civil Courts in the State of Goa and more

particularly during the inventory proceedings, thus the question

of jurisdiction of Civil Court will have to be considered in the

light of above observations and the fact that there cannot be

vested right in a Forum. The Forum and the procedure as to the

extent applicable will be the law of domicile. Accordingly, the

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matter will have to be entertained by the Civil Court exercising

jurisdiction in succession matters in the State of Goa.

17. Rule is made absolute in the above terms.

18. The parties are directed to appear before the concerned