Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2961__OF 2019
(Arising from SLP (C) No. 15949/2016)
UMA MAHESH BANDEKAR AND ANOTHER ..APPELLANTS
VERSUS
VIVEK SADANAND MARATHE AND OTHERS ..RESPPONDENTS
J U D G M E N T
M.R. SHAH, J.
Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 05.05.2016 passed by the High Court
of Judicature at Bombay, Bench at Goa in Appeal from Order No.
39/2015, by which the High Court has dismissed the said Appeal
from Order and has confirmed the order dated 02.06.2015
passed by the learned IIIrd Additional Adhoc Senior Civil Judge,
Margao in the Inventory Proceedings by the original Inventariante
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and other parties, the original appellants before the High Court
have preferred the present appeal.
3. The facts leading to the present appeal in nutshell are
as under:
At the outset it is required to be noted that the ‘lease
premises’ was of a partnership firm in the name and style
“Ramnath Anant Kesarkar” at Margao. That appellant no.1 and
respondent nos. 1 & 3 herein are the sisters and brother. The
parents of the parties (appellant no.1 and respondent nos. 1 & 3
herein), namely, Late Sadanand V. Marathe and his wife Late
Nirmalabai S. Marathe succeeded to the lease premises in terms
of Deed of Partition dated 29.03.1976, registered in the office of
the SubRegistrar of Salcete at Margao, Goa. The said premises
was of a partnership firm in the name and style “Ramnath Anant
Kesarkar” having business carried out in the tenanted premises
belonging to one Jairam Vasant Katkar at Margao. That the
father Sadanand V. Marathe died on 12.05.1985. That the
mother Niarmalabai S. Marathe died on 05.05.1998. Thus, the
parents of the parties i.e., Late Sadanand V. Marathe and his wife
Late Niarmalabai S. Marathe since deceased passed away on
12.05.1985 and 05.05.1998 respectively. That after the demise
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of the parents, respondent no.1 – brother of appellant no.1 and
son of Late Sadanand V.Marathe and Late Nirmalabai S. Marathe
filed Regular Inventory Proceedings No.11/2013/C dated
08.11.2013. That the Court appointed respondent no.1 as the
head of the family/Cabeca de Casal to administer the estate left
by the deceased, during the pendency of the said proceedings
and also appointed a court valuer for valuing and determining
the extent of properties stated in the inventory proceedings. The
valuer appointed by the court submitted its report to the court on
30.04.2014. The appellants herein filed objections to the
valuation report, inter alia, pointing out that there are certain
infirmities regarding the enlisted plots, survey nos. and also
ambiguous narration of the area and the amended list of assets.
As a result of the said objections, respondent no.1 filed a revised
list of assets in the inventory proceedings on 16.10.2014. The
appellants herein filed their objections/reply to the revised list of
assets. The main objection on behalf of the appellants was non
inclusion of the ‘lease premises’ in the inventory proceedings/list
of assets. Respondent no.1 filed reply to the objections of the
appellants. It was submitted on behalf of respondent no.1 that
the partnership firm does not form part of the estate of the
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deceased as married daughters are not entitled to the tenanted
premises.
3.1 That by order dated 02.06.2015, the learned Civil
Judge at Margao (hereinafter referred to as the ‘Inventory Court’)
dismissed the objections of the appellants for correcting the area
of the said property and also denied enlisting of the said tenanted
premises to the estate of the deceased.
3.2 Aggrieved with the order passed by the learned
Inventory Court dated 02.06.2015, the appellants filed an appeal
before the High Court being Appeal from Order No. 39/2015.
That by the impugned judgment and order, the High Court of
Bombay at Goa has dismissed the appeal preferred by the
appellants. From the impugned judgment and order passed by
the High Court, it appears that the High Court has mainly relied
upon Section 2(o) of the Goa Daman & Diu Buildings (Lease,
Rent and Eviction) Control Act, 1968 (hereinafter referred to as
the ‘Goa Rent Act’), and relying upon the aforesaid provision of
the Goa Rent Act, the High Court has held that the married
daughter would not qualify as a tenant in terms of the Goa Rent
Act. The High Court also examined and considered Decree No.
43525 of the Portuguese Civil Code and observed and held that in
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view of Section 59 of the Goa Rent Act and the repeal provision,
Decree No. 43525 of Portuguese Civil Code shall stand repealed
and the parties shall be governed by the provisions of the Goa
Rent Act only.
3.3 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court and dismissing the
Appeal from Order and confirming the order passed by the
learned Inventory Court holding that being a married daughter,
appellant no.1 has no right in the “lease premises” and therefore
the same cannot be subjected to the inventory proceedings, the
appellants original petitioners – objectors have preferred the
present appeal.
3.4 This Court issued notice in the special leave petition
vide order dated 08.07.2016. That during the pendency of the
present appeal, the Inventory Court has pronounced the final
order and has drawn the final chart of partition in Regular
Inventory Proceeding No.11/2013/C vide final order dated
31.07.2017, excluding the "lease premises” which is the subject
matter of present appeal.
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4. Ms. Binu Tamta, learned advocate has appeared on
behalf of the appellants and Ms. A. Subhashini, learned advocate
has appeared on behalf of the respondents.
4.1 Ms. Binu Tamta, learned advocate appearing on behalf
of the appellants has vehemently submitted that both, the
learned Inventory Court as well as the High Court have materially
erred in not considering the right of a married daughter, vis a vis,
the Goa Succession, Special Notaries and Inventory Proceeding
Act, 2012 (hereinafter referred to as the ‘Inventory Proceeding Act
2012’).
4.2 It is vehemently submitted by the learned counsel
appearing on behalf of the appellants that both, the learned
Inventory Court as well as the High Court have materially erred
in considering the provisions of the Goa Rent Act and not at all
considering the right of succession of the married daughters as
per the Inventory Proceeding Act, 2012.
4.3 It is vehemently submitted by the learned counsel
appearing on behalf of the appellants that so far as the
succession in the inventory proceedings is concerned, the parties
are governed by the Inventory Proceeding Act, 2012.
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4.4 Ms. Binu Tamta, learned advocate appearing on behalf
of the appellants has taken us to the relevant provisions of the
Inventory Proceeding Act, 2012 and relying upon the relevant
provisions of the Inventory Proceeding Act, 2012, more
particularly Sections 3, 5, 9, 68 of the said Act, has submitted
that under the provisions of the Inventory Proceeding Act, 2012,
there is no distinction/classification between daughter married or
unmarried & son. It is submitted by Ms. Binu Tamta, learned
counsel on behalf of the appellants that Section 399 provides for
list of assets, movable & immovable assets including mortgages,
easements, lease and others encumbrances.
4.5 It is further submitted by the learned counsel
appearing on behalf of the appellants that definition of ‘tenant’
under the Goa Rent Act shall not be applicable in the case of Law
of Succession. It is submitted that in the present case the
proceedings were not initiated under the Goa Rent Act and the
dispute was not between the landlord and the tenant, and
therefore, the provisions of the Goa Rent Act shall not be
applicable at all. It is submitted that therefore both the courts
below have materially erred in nonsuiting the appellants relying
upon and/or considering the provisions of Goa Rent Act. It is
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submitted that both the courts below have not properly
appreciated the fact that the proceedings were/are inventory
proceedings for the purpose of inheritance of the estate of the
deceased and therefore the provisions of the Inventory Proceeding
Act, 2012 only shall be applicable and are required to be
considered.
4.6 It is vehemently submitted by the learned counsel
appearing on behalf of the appellants that if the rights of
appellant no.1 being a married daughter are considered vis a
vis/considering the Inventory Proceeding Act, 2012, in that case,
appellant no.1 being a married daughter shall have a right of
succession with respect to “lease premises”, considering Sections
3,5,9,68 and 399 of the Inventory Proceeding Act, 2012.
4.7 Making the above submissions, it is vehemently
submitted by the learned counsel appearing on behalf of the
appellants that both the courts below have materially erred in
excluding the “lease premises” from the list of assets in the
inventory proceedings and have materially erred in observing and
holding that appellant no.1 being a married daughter has no
right of succession in the “lease premises”. Making the above
submissions, it is prayed to allow the present appeal.
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5. The present appeal is vehemently opposed by Ms. A.
Subhashini, learned advocate appearing on behalf of the
respondents.
5.1 It is vehemently submitted by the learned counsel
appearing on behalf of the respondents that in view of the
subsequent development and passing the final order by the
Inventory Court and drawing the final chart of partition in
Regular Inventory Proceeding No. 11/2013/C, which has been
signed and accepted even by the appellants, the present appeal
has become infructuous. It is vehemently submitted by the
learned counsel appearing on behalf of the respondents that in
the final order and/or the final chart of partition in Regular
Inventory Proceeding No. 11/2013/C, the “lease premises” has
not been included and the said order has been accepted by the
appellants, the present appeal has become infructuous.
5.2 It is vehemently submitted by the learned counsel
appearing on behalf of the respondents that even on merits also,
both the courts below have rightly held that appellant no.1 being
a married daughter has no right of succession in the “lease
premises” in view of Section 2(o) of the Goa Rent Act. It is
submitted that considering the provisions of Section 2(o) of the
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Goa Rent Act, a married daughter has no right in the
tenanted/lease premises.
5.3 It is vehemently submitted by the learned counsel
appearing on behalf of the respondents that right of a married
daughter in the “lease premises” has been considered by this
Court in the case of Mohammad Laiquiddin vs. Kamala Devi
Misra (Dead) by Lrs., (2010) 2 SCC 407 . It is submitted that in
the aforesaid case, this Court has also considered Decree No.
43525 under the Portuguese Civil Code and also Section 59 of
the Goa Rent Act, which relates to the repeal and savings clause.
It is submitted that as held by this Court in the aforesaid
decision as from the date on which the Goa Rent Act has brought
into force in any local area, the provisions of Decree No. 43525
th
dated 7 March, 1961 and the Legislative Diploma No. 1409
dated 14.02.1952 and the corresponding provisions of any other
law for the time being in force shall stand repealed in that area.
It is submitted that in the present case, as such, the appellants
heavily relied upon Decree No. 43525 dated 7.3.1961. It is
submitted that however in view of Section 59 of the Goa Rent Act,
the provisions of Decree No. 43525 dated 7.3.1961 stand
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repealed, the appellants cannot claim any right on the basis of
the provisions of Decree No. 43525 dated 7.3.1961.
5.4 It is vehemently submitted by the learned counsel
appearing on behalf of the respondents that as per Section 2(o) of
the Goa Rent Act, a married daughter would not qualify as a
tenant and therefore being a married daughter appellant no.1
cannot claim any right in the tenanted/lease premises. It is
submitted that the special law override the general law and the
Goa Rent Act being a special law which makes special provision
for any inheritance upon the death of the tenant and the tenancy
created by the Special Statute would be construed as a statutory
tenant, the statutory tenancy making no provision for
inheritance, confers no right on any legal heir. It is further
submitted that consequent upon the enforcement of the Goa Rent
Act, not only Decree No. 43525 dated 7.3.1961 came to be
repealed (in view of Section 59 of the Goa Rent Act), but also “the
corresponding provision of any other law for the time being in
force”, which would mean that the general law of succession
contained in the Portuguese Civil Code, 1867, would
automatically stand repealed upon the enforcement of the Goa
Rent Act insofar as building tenancies are concerned. It is
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submitted that therefore reliance placed upon Section 399 of the
Inventory Proceeding Act, 2012 is misplaced. It is submitted that
even Section 460 of the Inventory Proceeding Act, 2012 has no
application in the present case.
5.5 Making the above submissions, it is vehemently
submitted by the learned advocate appearing on behalf of the
respondents that the Inventory Court as well as the High Court
have rightly held that appellant no.1 being a married daughter
has no right in the “lease premises”, and therefore, the same is
rightly excluded from the list of assets in the inventory
proceedings.
5.6 Making the above submissions, it is prayed to dismiss
the present appeal.
6. We have heard learned counsel for the respective
parties at length.
6.1 The short question which is posed for consideration
before this Court is, right of a married daughter by way of
succession in the “lease premises” and whether with respect to
“lease premises”, a married daughter shall have a right of
succession, vis a vis, Inventory Proceeding Act, 2012 or not?
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6.2 While considering the aforesaid question/issue, the
relevant provisions of the Inventory Proceeding Act, 2012 are
required to be referred to and considered.
6.3 The Goa Succession, Special Notaries and Inventory
Proceeding Act, 2012 has been enacted to consolidate and amend
the law of intestate and testamentary succession, notarial law
and the laws relating to partition of an inheritance and matters
connected therewith. It has come into force with effect from
19.09.2016. Further, the Inventory Proceeding Act, 2012 shall
be applicable with respect to pending proceedings also, in view of
Section 460 of the Inventory Proceeding Act, 2012. Section 3 of
the Inventory Proceeding Act, 2012 defines succession. As per
Section 3 of the Act, succession is the transmission of the estate
of a deceased person in favour of his successors. It further
provides that a successor is the person who is called to succeed
to the juridical relations of the deceased person and upon whom
the assets and liabilities devolve. Section 5 of the Inventory
Proceeding Act, 2012 provides for the types of successors; heirs
and legatees. As per the said provision, heir is the person who
inherits or succeeds to the totality of the estate of the estate
leaver or to an undefined share thereof without specifying the
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assets constituting it, while a legatee is the one who succeeds to
specific and determined assets. As per Section 9 of the Inventory
Proceeding Act, 2012, all persons, besides the State, who are
born or conceived at the time of the opening of the succession are
competent to succeed, unless the law provides otherwise. Section
10 of the Inventory Proceeding Act, 2012 provides for
incompetence to succeed by reason of unworthiness to succeed.
It provides for the persons who shall be unworthy to succeed the
estate leaver and are consequently incompetent to be the
successors (it does not include the married daughter). Section 52
of the Inventory Proceeding Act, 2012 provides for order of legal
succession. It provides inter alia that the legal succession shall
devolve in the order as mention in Section 52 and it first devolve
on the descendants. Section 68 of the Inventory Proceeding Act,
2012 provides for succession of children and their descendants
and it specifically provides that the children and their
descendants succeed to their respective parents and other
ascendants, without distinction of sex or age . Section 399 of
the Inventory Proceeding Act, 2012 provides for initial list of
assets and it includes movables and livestock, the immovables
including mortgages, easements, leases and other encumbrances
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thereon and lastly depts due by the estate. Section 446 of the
Inventory Proceeding Act, 2012 permits amendment of partition.
It provides that the partition may be amended, even after it has
become final and no appeal has been preferred, in the very same
inventory proceedings by agreement of the parties or their
representatives, where there is a mistake of facts in the list of
assets or in the classification of the assets or any other error
which vitiates the will of the parties. Section 460 of the Inventory
Proceeding Act, 2012 provides that on and from the date of
coming into force the Inventory Proceeding Act, 2012, all
provisions of the laws in force at present corresponding to any of
the provisions of the Inventory Proceeding Act, 2012 shall stand
repealed. However, subsection 3 of Section 460 of the Inventory
Proceeding Act, 2012 provides that “all proceedings pending
under the repealed laws before any court in the State or Goa, as
on the date of the coming into force of the Inventory Proceeding
Act, 2012, shall be continued in terms of the procedure provided
in the Inventory Proceeding Act, 2012. The Inventory Proceeding
Act, 2012 provides for the proceedings/inventory proceedings to
partition the inheritance of a deceased person or to obtain a
formal order of allotment of inheritance by the Court. A person
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who initiates the inventory proceedings has to submit the list of
assets to be partitioned.
7. In the present case, respondent no.1 brother of
appellant no.1 initiated/filed the inventory proceedings before the
Inventory Court with the list of assets which did not include the
“lease premises”. According to respondent no.1 the “lease
premises” was not included in the list of assets as the “lease
premises” is not inheritable and that appellant no.1 being a
married daughter has no right of succession in the
tenanted/lease premises. Appellant no.1 herein raised an
objection against noninclusion of the “lease premises” in the list
of assets submitted in the inventory proceedings. The objection
came to be overruled by the learned Inventory Court which has
been confirmed by the High Court by the impugned judgment
and order on the ground that considering Section 2(o) of the Goa
Rent Act, a married daughter has no right in the “lease premises”
and a married daughter cannot be said to be a tenant of the
“lease premises” in view of Section 2(o) of the Goa Rent Act.
8. Having heard the learned advocates appearing for the
respective parties and considering the relevant provisions of the
Inventory Proceeding Act, 2012 and the provisions of the Goa
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Rent Act, for the reasons hereinbelow, we are of the opinion that
both, the learned Inventory Court as well as the High Court have
committed a grave error in relying upon the provisions of the Goa
Rent Act, while considering the right of succession of a married
daughter in the “lease premises” vis a vis and/or under the
Inventory Proceeding Act, 2012.
9. At the outset, it is required to be noted that the
proceedings before the inventory court as well as the High Court
were under the provisions of the Inventory Proceeding Act, 2012/
Portuguese Civil Code, which shall be continued on enactment of
the Inventory Proceeding Act, 2012, as if those proceedings
were/are initiated under the Inventory Proceeding Act, 2012 (in
view of Section 460 of the Inventory Proceeding Act, 2012). It is
required to be noted that the proceedings before the inventory
court and the High Court were not at all with respect to Goa Rent
Act. The proceedings were not between the landlord and the
tenant. The provisions of Goa Rent Act shall be applicable with
respect to dispute between the landlord and the tenant. As per
the preamble of the Goa Rent Act, it has been enacted for control
of rents and evictions. At the cost of repetition, it is observed
that the dispute was neither under the provisions of the Goa Rent
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Act nor between the landlord and the tenant and therefore both,
the inventory court as well as the High Court have erred in
considering the provisions of the Goa Rent Act, more particularly
Section 2(o) of the Goa Rent Act. The only question which was
before the inventory court and the High Court was in respect of
the rights of succession of a married daughter in the “lease
premises” under the provisions of the Portuguese Civil Code and
subsequently under the provisions of the Inventory Proceeding
Act, 2012. Therefore, what is required to be considered is
whether under the provisions of the Portuguese Civil Code and on
enactment of Inventory Proceeding Act, 2012, whether the
married daughter would have a right of succession in the “lease
premises” or not?
10. Considering the relevant provisions of the Inventory
Proceeding Act, 2012, referred to hereinabove, first of all, it is
required to be noted that so far as rights of successor, i.e., heirs
and legatees, as provided under Section 5 of the Inventory
Proceeding Act, 2012, as such, there is no classification between
the daughter married or unmarried and son. It cannot be
disputed that a daughter, may be a daughter married or
unmarried, would have a right of succession in the properties of
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the parents including the lease. Section 399 of the Inventory
Proceeding Act, 2012 provides for list of assets which can be
thrown to succession and it includes movable and immovable
assets including mortgages, easements, leases and other
encumbrances. Even, as admitted by the learned advocate
appearing on behalf of the respondents, so stated in the
additional written submissions, it is not disputed to the
proposition, whether Portuguese Civil Code, 1867 makes no
distinction as to the gender of the child or as to the order of birth
or as to the status of being single or married to discriminate in
matters relating to succession. It is also admitted that this legal
position has not been changed pursuant to the enactment and
enforcement of the Inventory Proceeding Act, 2012, brought into
force with effect from 19.09.2016. Even otherwise, as per Section
68 of the Inventory Proceeding Act, 2012, all the children and
their descendants succeed to their respective parents and other
ascendants, without distinction of sex or age . Thus, under the
provisions of the erstwhile Portuguese Civil Code, 1867 and/or
under the provisions of the Inventory Proceeding Act, 2012, there
is no further classification between a daughter married or
unmarried and son. Therefore, considering the scheme and the
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provisions of the erstwhile Portuguese Civil Code and as per the
provisions of the Inventory Proceeding Act, 2012, which has come
into effect with effect from 19.09.2016, even the married
daughter would have a right of succession in the “lease
premises”. As observed hereinabove, Section 399 of the
Inventory Proceeding Act, 2012 provides for list of assets which
includes movables and immovables assets including mortgages,
easements, leases and other encumbrances.
11. From the impugned orders passed by the inventory
court and the High Court, it is not in dispute that both the courts
below have held against the appellants, more particularly
appellant no.1 – married daughter, mainly relying upon and
considering Section 2(o) of the Goa Rent Act, which, as observed
hereinabove, ought not to have been considered and has no
relevance while considering the right of succession of a married
daughter in the “lease premises” under the provisions of the
erstwhile Portuguese Civil Code and subsequently on enactment
of the Inventory Proceeding Act, 2012. The sum and substance
of the above discussion would be that a married daughter would
have a right of succession in the “lease premises” also.
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12. Insofar as the submission on behalf of the respondents
that in view of the subsequent development of the inventory court
pronouncing the final order and has drawn the final chart of
partition in Regular Inventory Proceeding No. 11/2013/C, which
does not include the “lease premises” and the appellants having
signed and accepted the same, the present proceedings have
become infructuous is concerned, the aforesaid has no substance
and the same is required to be rejected outright. It is required to
be noted that the final order has been pronounced by the
inventory court during the pendency of the present proceedings,
excluding the “lease premises” in the list of assets in the
inventory proceedings which are under challenge. As the lease
premises was not included in the list of assets in the inventory
proceedings, naturally, the same would not be in the final chart
of partition, and therefore, whatever order is passed by the
inventory court, the appellants would have to sign and accept the
same. However, as the present proceedings were pending and
during the pendency of the present proceedings, the inventory
court has pronounced the final order and has drawn the final
chart of partition, it cannot be said that the challenge to the
exclusion of the “lease premises” from the list of assets in the
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inventory proceedings has become infructuous. As the present
proceedings were pending, the right of the appellants to challenge
the exclusion of the “lease premises” from the list of assets in the
inventory proceedings would continue and once it is held that
appellant no.1 being a married daughter would have a right of
succession in the “lease premises”, and the same was wrongly
excluded from the list of assets in the inventory proceedings,
despite the final order being passed in the inventory proceedings
and the final chart being drawn, the same can be amended with
the aid of Section 446 of the Inventory Proceeding Act, 2012.
13. In view of the above and for the reasons stated, the
present Appeal Succeeds. The impugned orders passed by the
inventory court and the High Court are hereby quashed and set
aside, and it is held that appellant no.1 being a married daughter
shall have a right of succession in the “lease premises” and the
same ought to have been included in the list of assets in the
inventory proceedings. Consequently, the partition as per the
final order passed by the inventory court and consequent
drawing of the final chart of partition, pursuant to the final order
dated 31.07.2017 in Regular Inventory Proceeding No.
22
11/2013/C be amended accordingly with the aid and/or
considering Section 446 of the Inventory Proceeding Act, 2012.
14. The instant APPEAL is ALLOWED accordingly, in terms
of the above. However, there shall be no order as to costs.
………………………………J.
[L. NAGESWARA RAO]
NEW DELHI; ……………………………….J.
MARCH 13, 2019. [M.R. SHAH]
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