Bhuvaneshwar Faterpekar And 3 Ors vs Xavier Agnelo Minguel Jose Gracias
- Court
- Bombay High Court
2026:BHC-GOA:1048-DB
2026:BHC-GOA:1048-DB
WP 81-25.doc
1/119
IN THE HIGH COURT OF BOMBAY AT GOA
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 81 OF 2025
Xavier Agnelo Minguel Jose Gracias .. Petitioner
Versus
The State of Goa, Thr. The Chief .. Respondents
Secretary and Anr
WITH
MISC. CIVIL APPLICATION NO. 2610 OF 2025 (F)
IN
WRIT PETITION NO. 81 OF 2025
Arjun Chandrakant Gaude .. Applicant
Versus
Xavier Agneloa Minguel Jose Gracias .. Respondent
WITH
MISC. CIVIL APPLICATION NO.2666 OF 2025 (F)
IN
WRIT PETITION NO.81 OF 2025
Bhuvaneshwar Faterpekar and 3 Ors .. Applicant
Versus
Xavier Agneloa Minguel Jose Gracias .. Respondent
WITH
WRIT PETITION NO.2486 OF 2025 (F)
Shantaram Jaywant Chanekar and anr .. Petitioners
Versus
Rushina Siddesh Chanekar and anr .. Respondents
Appearance in Writ Petition No.81 of 2025
Mr.Ashwin Ramani, Advocate for the Petitioner.
Mr.Devidas Pangam, Advocate General with Mr. N. Vernekar,
Additional Government Advocate for Respondent No.1.
Mr. Rohit Bras De Sa, Advocate for Respondent No.2.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
2/119
Mr. Shivan Desai with Ms. A. Thorat and Ms. Riya Amonkar,
Advocates for the Applicant in MCA No.2610 of 2015 (F).
Mr. Gauravvardhan Nadkarni, Advocate for the Applicant in MCA
No.2666 of 2025 (F).
Appearance in Writ Petition No. 2486 of 2025 (F)
Mr. Nigel Da Costa Frias with Mr. Shane Coutinho, Advocates for the
Petitioners.
Mr. Somnath Karpe with Ms. S. Vaigankar and Ms. Siddhi Parodkar,
Advocates for Respondent No.1.
Mr. Devidas Pangam, Advocate General a/w Ms. Maria Simone
Correia, Additional Government Advocate for Respondent No.2.
CORAM : BHARATI DANGRE &
ASHISH S. CHAVAN, JJ.
th
RESERVED : 18 MARCH, 2026
th
PRONOUNCED : 8 MAY, 2026
JUDGMENT (Per Bharati Dangre, J) :-
1 . The two Writ Petitions, namely, WP No. 81 of 2025 and WP –
F – 2486 of 2025 placed before us raise a challenge to the Goa
Succession, Special Notaries and Inventory Proceedings
(Amendment) Act, 2022, and the Goa Succession, Special Notaries
and Inventory Proceedings (Amendment) Act, 2023, which has
resulted in amending and substituting Section 52, 72, 76, 77 and 83
of the Goa Succession, Special Notaries and Inventory Proceedings
Act, 2012 (Act of 2012). The Petitioners seek a declaration that the
amendments in the Act of 2012 are ultra vires the Constitution, as it
has resulted in imposition of absolute and arbitrary restrictions on the
right of a person to bequeath or gift any property constituting his
estate. Challenge is also raised to the retrospective effect of the said
amendment as it is contended that the amendment Act of 2023 has the
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
3/119
effect of taking away ‘Vested rights,’ that are accrued and this being
done without any nexus, object or purpose, it is, arbitrary,
discriminatory and violative of Article 14 of the Constitution of India.
2 . Along with the two Writ Petitions, we have Miscellaneous
Civil Applications filed by individual parties seeking intervention/
impleadment being MCA-F- 2610 of 2025 and MCA-F- 2666 of
2025 in WP No. 81 of 2025.
3 . On the pleadings being completed and a request being made
that the Petitions be taken up for final hearing, we have heard the
arguments advanced on behalf of the Petitioners/interveners and the
private respondent in support of the challenge. We have also
extensively heard the learned Advocate General, Mr. Devidas
Pangam, who has defended the said challenge by strenuously urging
that there exists a presumption in favour of the constitutionality of a
statute and unless and until the parameters for striking a provision in
a statute, which being well settled are made out, the Court shall not
entertain such a challenge.
By consent of the respective counsel representing the parties,
on the pleadings being completed, we issue ‘Rule’, which is made
returnable forthwith.
For the sake of convenience, the Judgment is divided in the
following parts:-
Table of Contents
Sr No Description
A Background facts in the two Writ Petitions
(1) - WP No. 81 of 2025
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
4/119
(2) - WP No. 2486 of 2025 (F)
(3)- Miscellaneous Civil Application Nos. 2610 of 2025(F) and 2666
of 2025 (F)
Statutory scheme of Goa Succession, Special Notaries and
B
Inventory Proceedings Act, 2012
The Goa (Amendment Act) 13 of 2022
C
The Goa (Amendment) Bill No.26 of 2023
D
The effect of Amending Acts on the existing Act of 2012
E
Contentions advanced by the respective counsel representing the
contenders.
(I) Submissions advanced in support of the invalidation of the
Amending Act of 2022 & Act of 2023.
F
(II) Submissions on behalf of Interveners in the two Miscellaneous
Civil Applications
(III) Submissions of Private Respondent in WP No. 81 of 2025
Submissions of the Learned Advocate General on behalf of the
G
State.
H Analysis of the rival submissions and the Decision
(I) Understanding the provisions of the Act of 2012 in the backdrop of
the Portuguese Civil Code.
(II) The Change in the order of succession, the subject matter of
challenge.
(III) Guiding principles while testing validity of a law made by the
Competent Legislature
(IV) Challenge to the statute or statutory provision based on Article 14
of the Constitution
(V) New Dimension of Article 14 -
‘Manifest Arbitrariness’
(VI) Applicability of the Principle of ‘Arbitrariness’ contemplated under
Article 14 - in testing the amendments to the Act of 2012
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
5/119
(VII) Retrospective Effect of the Amending Act Whether result in
deprivation of ‘Vested’ and ‘Crystallised’ Rights.
(VIII) Effect of explanation appended to Section 52 by the Amending
Act.
Conclusion of Our Analysis
I
[A] BACKGROUND FACTS IN THE TWO WRIT PETITIONS
4. In order to appreciate the legal challenge, we must briefly refer
to the facts involved, as the challenge in the Petition apart from the
legal aspect has arisen in the peculiar factual backgrounds set out
therein.
(1) WP No. 81 of 2025
Writ Petition No. 81 of 2025, is filed by Xavier Agnelo
Minguel Jose Gracias, who claim his entitlement to the estate left
behind by his brother late Fransico Maximiano Menilo Costa e
Gracias, who demised on 31/05/2022. As per the Petition, late
Fransico expired intestate, without leaving behind any Will or
disposition of his last wish. He left behind immovable properties
situated at Velsao, Cansaulim, Cuelim and Pale, of Mormugao
Taluka, in the State of Goa.
According to the Petition, in view of the law of succession in
force, as on the demise of late Fransico, on 31/05/2022, the
ownership and possession of the inheritance is transmitted to the
Petitioner and his siblings in terms of Section 13 read with Section 52
of the Goa Succession, Special Notaries and Inventory Proceedings
Act, 2012, in the absence of any descendants and ascendants of late
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
6/119
Fransico surviving at the time of his demise.
However, the existing position, according to the Petitioner was
altered by the (Amendment) Act 2022, as it brought amendment in
Section 52, which altered the order of succession by placing the
surviving spouse after the descendants. In other words, according to
the Petitioner, by virtue of the amendment, the surviving spouse
become entitled to the estate, in the absence of a descendant and prior
to the Amendment Act of 2022, this entitlement was of the
ascendant(s).
5 . The Petitioner make a further grievance that the State brought
in another (Amendment) Act of 2023, on 05/09/2023, and this Act,
substituted section 52 of the parent Act that was already amended by
the Amendment Act of 2022 by introducing an explanation. It also
amended sections 72, 76 and 77 of the parent Act and this
amendment corresponded to the changes brought about by the
Amendment Act of 2022 to section 52 of the parent Act. Pertinently,
it also altered the concept of legitime by amending section 83 of the
parent act to now provide that the legitime of the surviving spouse
and of parents would be the entire estate, whereas that of the other
ascendants would be 1/3rd.
6 . The Petition raise a serious objection to the provision in form
of Section 1(2) of the Amendment Act of 2023 which provided that it
st
shall be deemed to have come into force on 21 day of December,
2016, indicating its retrospective operation, having the effect of
effacing rights that had vested in the Petitioner i.e. on 31/05/2022, i.e.
prior to the enactment of the Amendment Act of 2023.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
7/119
The Writ Petition filed by Xavier Agnelo Minguel Jose
Gracias, therefore, raises a challenge to the Amendment Act of 2022
and the Amendment Act of 2023 by pleadings thus:-
“9. The said Amendment Act of 2022 and the Amendment Act of 2023 are not only
ultra vires of the Constitution of India and violative of the rule of law, but also
results in arbitrarily depriving the Petitioner of his right to the estate that vested in
him in terms of the parent Act, and to the property, under the Constitution of lndia. ”
7 . The Petition has raised the following grounds:-
I
“ The Amendment Act of 2022 and the Amendment Act of 2023 is in
contravention of Article 14 of the Constitution of India.
II
The Amendment Act of 2023 has the effect of taking away vested rights
accrued to the Petitioner without any nexus, object or purpose, and is, therefore,
arbitrary, discriminatory and violative of rights guaranteed under Article 14 of
the Constitution of India.
III
The Amendment Act of 2023 is susceptible to judicial review and warrants a
declaration of unconstitutionality from this honourable Court in terms of the law
laid down by the Constitutional Bench of the honourable Supreme Court in the
case of Chairman, Railway Board & Others. v. C. R. Rangadhamaiah &
Others. (1997) 6 SCC 623 and later followed in the case of Punjab State
Cooperative Agricultural Development Bank Ltd. v. Registrar, Cooperative
Societies & Others (2024) 4 SCC 363.
IV
The Amendment Act of 2023 runs contrary to, and is in the teeth of, cardinal
principle of jurisprudence that rights vested and accrued under the existing laws
cannot be taken away or impaired by an amendment with a retrospective effect.
V
The amendment to section 52, as initially brought about by section 4 of the
Amendment Act of 2022, and the same section 52 as substituted by the
Amendment Act of 2023, overlooks the antecedent enactments on the subject.
A Decree has earlier come to be enacted on 31.10.1910 whereby the order of
succession was altered by entitling spouse to the Estate, in absence of
ascendants and descendants. The change brought about by the said Decree dated
31.10.1910 came to be withdrawn by virtue of Decree No. 19.126 dated
16.12.1930, which was brought into force with effect from 01.01.1931.
VI
The 2023 Amendment imposes absolute and arbitrary restriction on the right
of a person to bequeath or gift any property constituting his estate if does not
have a descendant as on the date of his demise. Such restriction is arbitrary and
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
8/119
causes an unintelligible differentiation which is contrary to the constitutional
scheme, and more particularly Article 14 of the Constitution of India.”
8 . Another significant aspect, which is highlighted in the Petition
is, the inventory proceedings which were instituted by the Petitioner
before the Civil Judge, at Vasco-da-Gama, being registered as
Inventory Proceedings No. 4 of 2023.
It is stated that in the wake of the Amendment Act, 2023, an
issue was raised about the maintainability of the proceedings by the
surviving spouse, who claimed to be now exclusively entitled to the
estate left behind the deceased. The Petition pleads that by judgment
and order dated 27/02/2024, the Court rejected the inventory
proceeding in view of Section 1(2) of the Amendment Act of 2023,
which declared that the amendment shall be deemed to have come
into force on 21/12/2016.
The Petition however proceed to state that the Petitioner has
assailed the said judgment in first appeal, which is founded on the
ground that the Civil Judge has committed an error in interpreting the
Amendment Act of 2023, by effacing rights vested in the Petitioner
prior to its enactment.
(2) WP No. 2486 of 2025
9 . In the second Writ Petition, the Petitioners, two senior citizens,
Shantaram Jaywant Chanekar and Shubhangi Shantaram Chanekar,
are the parents of Late Shri. Siddesh Shantaram Chanekar, who
demised on 22/03/2019. The Respondent No.1 to the Petition is Smt.
Rushina Siddesh Chanekar, widow of their son.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
9/119
The Petitioners claim that since there was no offspring out of
the marriage and they are the legal ascendants and ‘heirs’ in terms of
the law of succession prevailing at the time of his death.
The Respondent No.1, the widow and moiety holder of their
late son, instituted inventory proceedings for partition of the estate
left behind by her husband, the proceedings being registered as
Regular Inventory Proceeding No. 414/2019/D before the Civil
Judge, Junior Division, ‘D’ Court at Mapusa, Goa.
The Petitioners were named as interested parties in the said
proceedings, being legal heirs of the deceased.
10 . It is the case of the Petitioners, that under the unamended
Section 52 of the Goa Succession, Special Notaries, and Inventory
Proceedings Act, 2012, which determine the order of legal
succession, they were entitled for precedence over the surviving
spouse i.e. Respondent No.1.
Upon the introduction of the Amendment Act of 2022, the
Respondent No.1 filed an application seeking deletion of the
Petitioners impleaded as interested parties nos.1 and 1(a) by
contending that by virtue of the amended provision, the estate of the
deceased devolved exclusively upon her, as the surviving spouse.
According to the Petitioners, the 2022 amendment came into
effect from 8/11/2022 but by the (Amendment) Act, 2023, which
further substituted sub-section (1) of Section 52, was given a
retrospective effect in terms of sub-section (2) of Section 1 of the Act,
and it was deemed to have come into force on 21/12/2016.
The aforesaid development, therefore, resulted in the
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
10/119
application filed by Respondent No.1 being allowed on 10/04/2024,
directing the Petitioners to be dropped from the inventory
proceedings.
The said order being challenged before the District Judge – 2,
Mapusa, resulted into dismissal of the appeal, thereby confirming the
order passed by the Civil Judge.
The further development set out in the Petition is the institution
of First Appeal before the High Court of Bombay at Goa.
11. The Petitioners claim that they are gravely prejudiced by the
amendment to Section 52 of the Act of 2012 and the impugned order
passed by the Civil Judge, in the Inventory Proceeding which is
upheld in an Appeal.
The Petition has categorically set out the grounds in support of
its relief, seeking a declaration and specific reference is made to the
various provisions in the Portuguese Civil Code, 1867, which had
provided for devolution of intestate succession. The Petition has also
traced the scheme of succession in Goa and it is pleaded that for more
than a century the law has been, that the parents are next in the line of
succession in the absence of any descendants of a deceased estate-
leaver. According to the Petitioners, the unique system of marriage,
and the law governing the property of spouses, in Goa, which
recognized the system of communion of assets, where the spouses are
joint owners and sharers of the property held by them, i.e. self
acquired, jointly acquired, or brought into communion through
succession, gift, or otherwise.
The Petition makes reference to the relevant articles in the
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
11/119
Portuguese Civil Code, and on the basis of which, according to the
Petition, marriage is an essential contract between two consenting
parties and it is with intention and keeping in consonance with the
law recognizing marriage as purely a civil contract, the surviving
spouse was placed below the descendants, ascendants, and siblings
and their descendants, if they predeceased the estate-leaver. Thus,
according to the Petitioners, the amendment in Section 52 of the Goa
Succession, Special Notaries and Inventory Proceedings Act of 2012
runs contrary to the concept of legal heirship and the historical order
of succession as followed by the Portuguese Civil Code, 1867 in Goa
for more than a century which is otherwise a just, equitable and
sound law.
(3) Miscellaneous Civil Application Nos. 2610 /2025 & 2666 / 2025
12 . In Writ Petition No. 81 of 2025, a Civil Application is taken
out by Arjun Chandrakant Gaude, seeking his impleadment, as he
claims to be a interested party in Inventory Proceeding No. 87 of
2025, which is filed upon the death of Late. Raghunath Atmaram
Shetgaonkar and late Mahalaxmi Raghunath Shetgaonkar who are the
in-laws of the Applicant. Since the Applicant gained knowledge about
the Petition being filed raising a challenge to the (Amendment) Act,
2022 and the (Amendment) Act, 2023 by which amendments are
brought in Act of 2012, which has altered the order of succession,
thereby placing the surviving spouse after descendants, on the basis
that the outcome of the Petition will also have bearing on the
Applicant’s case, the Applicant seeks intervention.
13 . Another Application is filed by Mr. Bhuvaneshwar Faterpekar
and three others. The Application proceed to state that the Applicants
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
12/119
being residents of Goa are practicing Advocates before the Court and
Applicant no.1 has been recently elected as people’s representative
i.e. ward member of village Panchayat of Carambolim.
According to the Applicants, the amendment introduced in the
Goa Succession, Special Notaries and Inventory Proceedings Act,
2012, had amended the waterfall mechanism in pertinence to
succession to estate, whereby the surviving spouse earlier was at
serial no. (iv), but now placed at serial no.(iii). The Applicant
specifically plead that the amendment though pertaining to
succession, has a direct connection and bearings to the rights under
the Civil Code in as much as it pertain to civil marriage, and
therefore, the Applicants deemed it appropriate to intervene and
request for being heard in the Petition which has raised a challenge to
the Amendment Act, 2022 and 2023, as even according to them, the
amendments are contrary to law and they are manifestly arbitrary,
irrational and ex-facie based on whims / preferences rather than
reason and principle.
[B] STATUTORY SCHEME OF GOA SUCCESSION, SPECIAL
NOTARIES AND INVENTORY PROCEEDINGS ACT, 2012
14 . With the above background of the proceedings before us, we
must refer to the statutory scheme under the Goa Succession Act of
2012.
The Goa Succession, Special Notaries and Inventory
Proceedings Act, 2012, was passed by the Legislative Assembly of
Goa on 5/08/2016 and received assent of the Governor on
19/09/2016.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
13/119
The said Act consolidate and amend the law of intestate and
testamentary succession, notarial law and the laws relating to
partition of an inheritance. It extend to the whole of the State of Goa
and is applicable to the category of persons, who are specified in
clause (4) of Section 1 of the Act, 2012.
15 . The Statement of Objects and Reasons (SOR) of the 2012 Act
has set out its purport, being the need to consolidate various
provisions of law into one comprehensive, rational and integrated
legislation, to facilitate their application and its implementation by
the Bench, the Bar and the litigants.
Statement of Objects and Reasons of the 2012 Act record
thus:-
“Considering the need to take into account the social changes and the new
situations arising from the fact that Goa is now a State of the Union of India and
Goans are citizens of India and considering also that the Laws which in force
were applicable to an altogether different set of political circumstances, it has
become necessary to amend the Law to meet the present day requirements and to
make it workable.
Further, in view of noteworthy new principles that have evolved, a more
humane and fair outlook is now taken on illegitimacy, on mentally challenged
persons and on such other persons upon whom a stigma was cast in the past for
no fault of theirs. These principles and outlook have been adopted in framing the
present law.
That object is sought to be achieved by this Bill which deals with the Law of
Succession, Special Notaries and the Inventory proceedings.
While drafting the Bill, the following Legislations have been kept in view:
(a) The provisions of the Portuguese Civil code enacted in Portugal in
1966, replacing the Civil Code of 1867 and the Code of Civil Procedure of 28-
12-2961, replacing the Code of Civil Procedure of 1939, as well as Decrees
amending from time to time many provisions of the aforesaid Code on the subject
of succession and inventory and Notarial Law, and the Law approved by Decree
Law No. 207 dated 14-08-1995 and amendments thereto.
(b) The Provisions of Louisianan Civil Code, 1870 (based on Napoleon
Code), in force in the state of Louisiana of the United States of America as
originally enacted, and the subsequent amendment included by Act of 1981 No.
919 effective after 31-12-1981 and Act of 1990 No. 147 with effect from 1-7-
1990.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
14/119
(c) Legislation in force in the rest of India.
(d) There are some original provisions which have been incorporated
bearing in mind the present circumstances.
The subject of succession, partition, execution of wills with corresponding
notarial acts and inventory proceeding meant for partition of the estate through
the Court fall within the purview of entry 5 of List III-Concurrent List of the
seventh schedule to the Constitution of India and in view of section 5 of the
aforesaid Goa, Daman and Diu (Administration) Act, 1962, the Legislature of
the State of Goa is competent to enact Law on the subject.”
16 . One of the key feature of the Act of 2012 is its provision for
succession as contained in Part II. As per Section 3, ‘Succession’ is
the transmission of the estate of a deceased person in favour of his
successors, and successor is the person who is called to succeed the
juridical relations of the deceased person and upon whom the assets
and liabilities devolve.
For the purpose of Part II succession may be intestate or legal
and testamentary.
Testamentary succession is described to be the succession
which results from a will left by the estate leaver and a testamentary
heir is a heir instituted by a will.
Intestate succession is either free or forced and forced
succession is the one which is reserved by law to the forced heirs and
places restrictions on the freedom of the estate leaver to dispose of
his estate.
17 . According to the Act of 2016, the ‘Successors’ are Heirs and
Legatees and ‘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 assets constituting it, whereas
‘Legatee’ is the one who succeeds to specific and determined assets.
A person who succeeds to the remainder of the estate when the assets
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
15/119
constituting the remainder are not determined, is an ‘Heir’.
According to Section 6, Inheritance or succession of a
deceased would comprise of all the properties, rights and obligations
which he leaves upon death, though it is clarified that a person’s right
which by their very nature or by operation of law, extinguish upon
death of the title holder, and do not form part of the inheritance.
18 . In terms of the Act of 2016, the succession opens upon the death of
the estate leaver and Section 8 prescribes the place where the succession
opens.
All persons, who are born or conceived at the time of opening of the
succession are competent to succeed, unless the law provides otherwise.
The statute also prescribe a disqualification to succeed, by
reason of unworthiness like a person convicted for commission of
murder, a person convicted for defamation or for giving false
evidence, a person who by deceit or coercion, induce a estate leaver
to make, revoke or modify a will, or obstruct him from doing so etc.
As per Section 13, the moment the estate leaver dies, the
ownership and possession of the inheritance is transmitted to the
heirs, whether testamentary or intestate.
19 . Chapter IV of the Act provide for Acceptance of inheritance,
which shall be unconditional and it prescribe that the acceptance or
renunciation of an inheritance is entirely voluntary and free act, with
a clarification that a person who renounces inheritance which
devolves on him by one title is not, for that reason, debarred from
accepting inheritance, which devolves on him by another title.
However, Section 24 of the Act declare that it is not lawful for a
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
16/119
person to accept or renounce an inheritance in part, or for a certain
time limit or conditionally. Section 45 included in Chapter V has set
out the liabilities of inheritance and Section 46 prescribe that the
creditors of the inheritance and the legatees have priority over the
personal creditors of the heir and the creditors of the inheritance.
Under this scheme, the ‘Heir’ shall retain, as against the
inheritance, till partition, all the rights and obligations vis-a-vis the
deceased, with the exception of those who get extinguished upon the
death of the estate leaver.
20 . For the purposes of the challenge before us, we must take note
of Chapter VI, under the heading of ‘Legal Succession’, as Section 51
prescribe that where any person dies without making a disposition of
his assets or making disposition of only a part thereof or, having
made a will, and the will is annulled, revoked, reduced or it lapses,
his legal heirs shall inherit the assets or part thereof.
Section 52, which is the subject matter of challenge in the
present writ petitions, prescribe the order of legal succession and the
said section introduced in the Act of 2016 read thus:-
“52. Order of legal succession.- (1) The legal succession shall devolve in the
following order:-
(i) On the descendants;
(ii) On the ascendants, subject to the provisions of sub-section (2) of section 72;
(iii) on the brothers and their descendants;
(iv) on the surviving spouse;
th
(v) on the collaterals not comprised in clause (iii) upto the 6 degree;
(vi) on the State, provided that, in the absence of testamentary or intestate heir
of a beneficial owner or of an emphyteusis, the property shall revert to the direct
owner.
(2) In respect of persons referred to in clauses (i), (ii) and (iii) of sub-section
(1), the agricultural produce or fruits, gathered or growing, meant and
necessary for the maintenance of the couple shall be deemed to be the personal
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
17/119
property of the surviving spouse, provided that on the date of the opening of the
inheritance there is no suit for divorce or separation of persons and properties,
pending or decreed.”
21 . The Act of 2016 in Chapter VIII provide the Order of
Succession of children and their descendants/ascendants as well as
the Ascendants of Second Degree and the Succession of
brothers/sisters and their descendants. Section 77 in the Act is the
provision for succession of surviving spouse, which read thus:-
“77. Succession of Surviving Spouse.- In default of descendants, ascendants,
brothers, sisters and their descendants, the surviving spouse shall succeed,
provided that at the time of the death of the other spouse, they were not divorced
or there had been no judicial separation of spouses and assets by a decision
which had become final.”
22 . Similarly, Section 82 included in Chapter IX is a provision
prescribing Preferential right of habitation and use of the surviving
spouse and it read thus:-
“82. Preferential right of habitation and use of surviving spouse. - (1) The
surviving spouse of the estate leaver shall have the right to exclusive habitation
of the residential house of the family and the right to use the movables and other
objects or utensils intended for the comfort, service and decoration of the house.
If such claim is made, the value of the right of habitation and use shall be
determined and the surviving spouse shall pay owelty to the heirs if the value of
right of habitation and use exceeds the value of her moiety and share, if any.”
23 . Although, the Act refer to certain other important provision, in
form of inventory proceedings, at this juncture, it is not necessary for
us to make a reference to the same, as we would be referring to them
at the relevant stage of our discussion.
[C] THE GOA (AMENDMENT ACT) 13 OF 2022
24 . The Goa Succession Special Notaries and Inventory
Proceedings (Amendment) bill 2022, was introduced by the
legislative assembly of Goa for amending the Act of 2012.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
18/119
This bill amended Section 52 of the Principle Act by inserting
the following item (a) after item (i),the following item shall be
inserted, namely:- “(ia) on the surviving spouse;”;
The amending Act substituted the following (b) for item (iii)
namely “(iii) on the brothers and sisters and their descendants;”; (c)
item (iv) came to be amended. Upon enactment of the amendment
Act, the surviving spouse followed the descendants and the existing
clause (iii) was substituted by brothers and sisters and their
descendants and clause (iv) surviving spouse, since transposed above
was deleted.
The SOR of the amending Act, which sought to amend Section
52 of the Act of 2016, expressed its intention to rectify the order of
legal succession, and several other provisions in the Act, were also
amended, as it sought to achieve the object set out therein.
[D] THE GOA (AMENDMENT) BILL NO.26 OF 2023
25 . The Goa Succession Special Notaries and Inventory
Proceedings Act, bill 2023 was further enacted by the legislative
assembly of Goa and sub-section (2) of Section 1, prescribed that the
amendment shall be deemed to have come into force on 21/12/2016
and in Section 52 of the Act of 2012 for sub-section (1), the following
sub-section was substituted;
‘(1) The legal succession shall devolve in the following order:-
(i) on the descendants;
(ii) on the surviving spouse;
(iii) on the ascendants, subject to the provisions of sub-section (2) of section 72;
(iv) on the brothers and sisters and their descendants;
th
(v) on the collaterals not comprised in clause (iv) upto the 6 degree; (vi) on the
State, provided that, in the absence of testamentary or intestate heir of a
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
19/119
beneficial owner or of an emphyteusis, the property shall revert to the direct
owner.
Explanation:- The provisions of this sub-section as amended by Goa Succession,
Special Notaries and Inventory Proceeding (Amendment) Act, 2023 shall be
applicable to the cases/appeals pending before different courts, however the said
amendment shall not disturb the rights which got crystallized before the
enactment of the said Act, 2023.
The amending Act also introduced amendment in Section 83
of the principal Act, with relation to the disposable portion and
the existing provision stood substituted by the following
provision:-
“83. Disposable portion.- The portion which the testator may freely dispose off
shall be called the disposable portion and it shall consist of half of the estate of
the estate leaver, except as provided hereunder:-
(a) Legitime of the descendants: Where the estate leaver has children or
descendants at the time of his death, their legitime shall consist of half of the
inheritance.
(b) Legitime of the spouse: Where the estate leaver has no children or
descendants at the time of his death but his spouse is alive, her legitime shall
consist of entire inheritance.
(c) Legitime of the parents: Where the estate leaver has no children or
descendants and spouse at the time of his death but either his mother or father is
alive, their legitime shall consist of entire inheritance.
(d) Legitime of other ascendants: Where the estate leaver has at the time of his
death ascendants other than the father or mother, their legitime shall consist of
one third of the inheritance.”
26 . The statements of objects and reasons of the said amending Act
2023 read thus:-
“ STATEMENT OF OBJECTS AND REASONS
The order of legal succession as laid down under sub-section (1) of section 52 of
the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012 (Goa
Act 23 of 2016) (hereinafter referred to as the “said Act”) was rectified by
carrying out an amendment to said sub-section (1) of section 52 vide the Goa
Succession, Special Notaries and Inventory Proceeding (Amendment) Act, 2022
(Goa Act 13 of 2022). The said Amendment Act, 2022 came into force with effect
th
from 8 Day of November, 2022. The Bill now seeks to make provision for
making applicable amendment to said sub-section (1) of section 52 to pending
cases/appeals, however the sai amendment shall not disturb the rights which got
crystallized before the enactment of this legislation. The amendments as
proposed to sections 72,76,77 and 83 of the said Act are consequential
amendments which are made to bring the provisions contained in said sections in
consonance with the provisions of section 52 of the said Act as amended.”
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
20/119
[E] THE EFFECT OF AMENDING ACTS ON THE EXISTING
ACT OF 2012
27 . The Goa Succession, Special Notaries and Inventory
proceedings (Amendment) Act 2022, and the (Amendment) Act 2023,
brought in the amendments to the Act of 2012, which cumulatively
has the following effect:- (a) The order of succession contemplated in
section 52 of the Act of 2012 has now been altered to place the
surviving spouse, second in the order of succession i.e. to succeed to
the estate in the absence of descendants. The spouse under the
original section 52 was placed fourth in order of succession i.e. to
succeed in absence of descendants, ascendants and brothers/sisters
(b) It alters the concept of legitime, in the event of a spouse
succeeding to the estate. The legitime of the spouse as in the
amended Section 83 of the Parent Act is the entire inheritance.
This legitime under the unamended law was one half of the
inheritance.
(c) The Amendment Act of 2023 which has brought in the
amendments are deemed to have come into force on 21/12/2016.
A comparative chart showing the change in the original Section
52 of the Goa Succession Act, 2012 is drawn below to depict the
changes.
Section 52
Of the Parent Act, as it As amended by the After substitution by
originally stood Amendment Act of 2022 Amendment Act of 2023
Sub-section (1) Sub-section (1) Sub-section (1)
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
21/119
(1) The legal succession
shall devolve in the
following order :-
(1) The legal succession
shall devolve in the
following order :-
(1) The legal succession
shall devolve in the
following order:-
(i) on the descendants ;
(ii) on the surviving
spouse ;
(i) on the descendants;
(ia) on the surviving
spouse;
(ii) on the ascendants,
subject to the provisions
of sub-section (2) of
section 72;
(i) on the descendants;
(ii) on the ascendants ,
subject to the provisions
of sub-section (2) of
Section 72;
(iii) on the ascendants ,
subject to the provisions
of sub-section (2) of
section 72;
(iii) on the brothers and
their descendants;
(iv) on the surviving
spouse;
(iii) on the brothers and
sisters and their
descendants
(iv) on the brothers and
sisters and their
descendants;
(v) on the collaterals not
comprised in clause (iii)
th
upto the 6 degree;
(v) on the collaterals not
comprised in clause (iii)
th
upto the 6 degree;
(v) on the collaterals not
comprised in clause (iv)
th
upto the 6 degree;
(vi) on the State,
provided that, in the
absence of testamentary
or intestate heir of a
beneficial owner or of an
emphyteusis, the property
shall revert to the direct
owner.
(vi) on the State,
provided that, in the
absence of testamentary
or intestate heir of a
beneficial owner or of an
emphyteusis, the property
shall revert to the direct
owner.
(vi) on the State,
provided that, in the
absence of testamentary
or intestate heir of a
beneficial owner or of an
emphyteusis, the property
shall revert to the direct
owner.
Explanation – The
provisions of this sub-
section is amended by the
Goa Succession, Special
Notaries and Inventory
Proceeding (Amendment)
Act, 2023 shall be
applicable to the
cases/appeals pending
before different courts,
however the said
amendment shall not
disturb the rights which
got crystallized before the
enactment of the said Act,
2023.”
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
22/119
[F] CONTENTIONS ADVANCED BY THE RESPECTIVE COUNSEL
REPRESENTING THE CONTENDERS
(I) Submissions advanced in support of the invalidation of the
Amending Act of 2022 & Act of 2023.
28. Mr. Ramani appearing for the Petitioner in Writ Petition No. 81
of 2025 has mounted a challenge to the amending Acts on three
counts; the challenge to the alteration of the order of succession, the
retrospective application of the provision amounting to divestiture of
vested rights and thirdly on the ground of alteration in the concept of
legitime.
Mr. Ramani would explicate his challenge to the variance in
the order of succession, by submitting that Section 52 has created
class of heirs to succeed to the estate, in order of preference as set out
in the Act of 2016. According to him, in the wake of the amendment,
the surviving spouse originally placed at fourth step, in the order of
succession has moved to second.
He would submit that the order of succession which was
originally contemplated in the parent Act which existed in the State
of Goa at least ever since 01/07/1870 i.e. when the Civil Code of
1867 was extended to overseas territories including Goa and as such
for a period of more than 150 years, prior to the impugned
amendments being introduced, and the asset owned by the deceased
estate leaver would be dealt by the same order.
It is his contention that the spouse was conferred with the
following rights:-
(a) The surviving spouse would be entitled for 50 % of the share
(Article 1108 of the Civil Code); (b) Right to exclusive habitation and
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
23/119
use of residential house and movables was reserved to the spouse
(Section 82 of the Act of 2016); (c) Agricultural produce necessary
for maintenance shall be deemed as personal property of the spouse
(Section 52 (2) of the Parent Act, erstwhile Article 1969 of the Civil
Code); (d) Remaining 50% would constitute the estate of the
deceased and would devolve (in absence of a will) in the order of
legal succession set out in Article 1969 of the Civil Code, which now
is substituted by the amendment.
29 . In support of the Petitioners, in WP No. 81 of 2025,
Mr. Ramani would submit that, the provision as it existed prior to the
impugned amendments, the surviving spouse was adequately
safeguarded by vesting of 50 % of the assets of the deceased spouse
and by reservation of produce from lands that constituted the estate,
and only on satisfying the above, the estate devolved upon the
descendant, the ascendants or brothers/sisters. However, in order to
rectify the order of succession, the amending Act of 2022 brought a
change which according to him, do not reflect any conceivable
legitimate object nor does it intend to remedy any mischief. It is his
specific submission that the classification of spouse now in second
degree by taking precedence over ‘Ascendants’ and
‘Brothers/Sisters,’ the direct blood relation do not serve any
legitimate object.
The learned counsel would place reliance upon the decision of
1
the Apex Court in John Vallamattom and anr vs. Union of India ,
where the Apex Court declared Section 118 of the Succession Act of
1925 to be unconstitutional, when the Court rendered a finding that
1 (2023) 6 SCC, 611
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
24/119
although Indian Christians formed a class by themselves, but there is
no justiciable reason to hold that the classification made is either
based on intelligible differentia or the same has any nexus with the
object sought to be achieved. Reliance is also placed upon the
decision in case of Dr. K. R. Lakshmanan vs. State of Tamil Nadu
2
and Anr to submit that if the provision in statute is discriminatory
and arbitrary it violate and infract right of equality enshrined under
Article 14 of the Constitution.
30 . Pressing the second point of challenge about the retrospective
effect given to the provision, Mr. Ramani would place reliance upon
the decision in case of Chairman, Railway Board and ors vs. C.R.
3
Rangadhamaiah and Ors , in support of his submission that,
divestiture of vested rights without any nexus to the object of the
amendment made with retrospective operation is violative of Article
14. He would submit that the retrospective operation results in
creation of a class of persons who would stand arbitrarily divested of
the vested rights accrued by previous operation of the Act of 2016
particularly Section 8 and 13 thereof. According to Mr. Ramani, the
Rule against Retrospectivity is the bedrock of not only fairness, but
also the ‘Rule of Law’ which constitutes basic structure of the
Constitution.
He would invoke the principle laid down in the said decision,
as regards the expression ‘Vested rights’ or ‘Accrued rights’ where
the Apex Court has held that while striking down the impugned
provisions which was given retrospective operation, so as to have an
adverse effect in the matter of promotion, seniority, substantive
2 (1996) 2 SCC 226.
3 (1997) 6 SCC 623
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
25/119
appointment, etc. of the employees, the expression have been used in
the context of a right flowing under the relevant rule, which was
sought to be altered with effect from an anterior date, thereby taking
away the benefits available under the rule in force at that time, and it
is held that such an amendment which has the effect of taking away
of benefit already available to the employee under the existing rule is
arbitrary, discriminatory and violative of the rights guaranteed under
Articles 14 and 16 of the Constitution of India.
31 . With reference to the facts involved, he would submit that the
estate leaver, subject to the legitime, has the authority and vested
right to determine the destiny of his properties/assets and
retrospective effect given to the impugned amendment resulting in
violation of the vital right, long after the estate leaver has expired,
which is capricious and unjusticiable. According to him, the
argument that vested right to inheritance accrues only on conclusion
of inventory proceedings is unfounded and incorrect. According to
him, the right of the heir to the estate which is transmitted, accrues no
sooner the estate leaver dies, and it take shape of a ‘vested right’.
According to Mr. Ramani, from the point of an Heir, the right is
transmitted, the moment an estate leaver expire, when the inheritance
opens and this transmission is as regards not only ownership but also
possession. The right to inherit is an alienable and marketable right and
any argument that vested right of inheritance accrues only on the
conclusion of inventory proceedings according to Mr. Ramani is
unfounded and incorrect as, through the said proceedings the estate is
only apportioned and has no bearing on the vesting/transmission, as
contemplated under Section 13 of the Act of 2016.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
26/119
32 . Mr. Nigel Costa Frias, representing the Petitioner Shantaram
Jaywant Chanekar and Ors., in WP No. 2486 of 2025 has also
assailed the amendment in Section 52 of the Act of 2012 as according
to him, the effect given to the amendment retrospectively is
completely unjustified. Apart from this, he would submit that the
justiciable reason for the amendment being introduced by stating that
the amendment seeks to iron out inconsistencies between the
provisions of Portuguese Civil Code of 1867 and Goa Succession,
Special Notaries and Inventory Proceedings Act, 2012 is completely
misplaced, as there exists no such inconsistency.
According to him, the provisions of Section 8, 13 and 52 of
the Act of 2012 are practically pari materia with the provisions of
Articles 2009, 2011 and 1969 of the Portuguese Civil Code, 1867. In
his view, the justification that the impugned amendment seek to
protect the interest of the surviving spouse is also misplaced as the
interest of surviving spouse is taken care of by the law of
communion of assets except when the spouses voluntarily opt for an
ante nuptial agreement or opt for a regime of complete separation of
assets or of acquired assets, where once again adequate protection
can be ensured as regards the civil rights.
33 . According to Mr. Costa Frias, corresponding to Section 8 (1)
of the Act of 2012, under Article 2009 of the Civil Code of 1867, the
succession opens on the death of the estate leaver and as per Section
3 of the Act of 2012, succession is the transmission of the estate of a
deceased person in favour of his successors and upon death of an
estate leaver his heirs succeed to his estate, which include his assets
and liabilities and all the rights, which he may possess and the
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
27/119
obligations which he owe, as recognized by law. According to him,
Section 6 of the Act of 2012 has defined ‘Inheritance’ to mean
inheritance or succession of a deceased person comprising of all the
properties, rights and obligations, which he leaves upon death. It is
his specific submission that transmission of ownership and
possession of inheritance is not contingent on the acceptance of
inheritance by the heirs as according to Section 21, an acceptance of
inheritance has to be unconditional.
In the wake of Section 13 of the Act, it is the contention of
Mr. Frias that transmission of ownership and possession of
inheritance imply that what is transmitted is the ownership and
possession of the entire estate to the heirs of the estate leaver whether
testamentary or intestate and this is indicative of an absolute
indefeasible right, which is not a contingent or an inchoate right.
According to Mr. Frias, every word used in a provision in a statute
must be given its full meaning, keeping in mind the legislative intent,
otherwise the purpose of framing and enacting the provision by
legislature would itself be defeated and from the provisions in the Act
of 2012, the intent of the legislature is evidently clear, that the
ownership and possession of the inheritance of the deceased estate
leaver should vest in his/her heirs from the moment of his death and
there is nothing in the Act of 2012, which suggest otherwise.
34 . While mounting a challenge to the amendment in Section 52 of
the Act of 2012 with retrospective effect, according to Mr. Frias the
provision is manifestly arbitrary, unjust and unconstitutional as it
attempt to take away vested rights of ownership and possession
which have already accrued in favour of persons who qualify in line
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
28/119
of succession as per the unamended Section 52. According to him,
the order of succession as per the unamended Section 52 corresponds
to Article 1969 of the Civil Code 1867. As per Mr. Frias that the
entire scheme of succession as per the Portuguese Civil Code,
concerning law of inheritance and succession finds place in the Act of
2012 (unamended) and the order of succession is continued as in the
Code, depending upon the principle of kinship.
Mr. Frias would also invite our attention to various provision in
form of Articles in the Code, which has contemplated marriage to be
a contract solemnized between persons of two different sex with the
aim of legitimately constituting a family and according to him this
contractual relationship and the rights of the spouses emanating
therefrom is governed by the provisions of the Portuguese Civil
Code, which also contain a provision of Ante-Nuptial contracts,
which give the option to the spouses to choose the effect / operation
of the regime qua their property in their marital relationship.
35 . Tracking the rights of a spouse under the Act of 2012, as
contained in Section 82 which gives the preferential right of
habitation and use to the surviving spouse, he would submit that by
no stretch of imagination, the amendment is aimed at eradicating any
gender discrimination or correcting any historical wrong.
In other words, he would submit that there is no mischief that
is to be remedied or any social justice being attained or public interest
being served by the amending Act.
Moreso, according to him, there is absolutely no justification
for giving any effect to the amendment retrospectively from
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
29/119
21/12/2016 i.e. nearly seven years prior, apart there is no justification
for fixing the date on which the amended provision would come into
force, thereby creating a class of persons who would be benefited by
the impugned amendment.
36 . According to Mr. Frias, the impugned amendment, is, manifestly
arbitrary, disproportionate, irrational and liable to be struck down, as
being violative of Article 14 of the Constitution of India, as it divest the
persons of vested rights to ownership and possession of the property and
therefore, also violate Article 300A of the Constitution of India.
According to him, the amendment will prejudicially affect large number
of senior citizens, who would be dependent on the estate of their
deceased children, in the unfortunate event where their child/children
predecease them and in such cases the aged parents would be virtually
left without any means of support.
Since the amendment lack any rational basis and it is not based
upon any justiciable ground whatsoever, according to Mr.Frias the
same is liable to be struck down.
He would place reliance upon the decision in case of Shayara
4
Bano v Union of India & Ors , in support of the submission that the
action is arbitrary and the Constitution Bench in Shayara Bano (supra)
has tracked the development of the doctrine of arbitrariness and its
application to the state action.
According to Mr. Frias, since Article 14 strikes arbitrariness in
executive/ administrative action, as any action that is arbitrary will
involve negation of equality and an action per se arbitrary itself denies
equal protection of law. It is also his submission that the principle of
4 (2017) 9 SCC 1.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
30/119
reasonableness, which legally as well as philosophically is an essential
element of equality or non-arbitrariness pervades Article 14 like a
brooding omni-presence as held by the Apex Court in Maneka Gandhi
5
vs. Union of India
37 . Mr. Frias would also place reliance upon the following
decisions:-
6
1 J.S. Yadav vs. State of UP and Anr .
7
2 State of Gujarat & Anr. vs. Raman Lal Keshav Lal Soni & ors
3 Howrah Municipal Corporation & Ors. vs. Ganges Rope Company
8
Ltd .
9
4 Manish Kumar vs. Union of India and anr
The principle of law flowing from the decision in Howrah
Municipal Corporation (supra) is invoked by Mr. Frias in support of
his submission that ‘vested right’ is an absolute or indefeasible right
and such right cannot be trampled upon.
(II) Submissions on behalf of Interveners in the two Miscellaneous
Civil Applications
38 . We have also heard the learned counsel Mr. Shivan Desai
representing Mr. Arjun Gaude (MCA No. 2610 of 2025), who has
sought intervention in the proceedings and he would place before us a
comparative analysis of the provisions contained in the Portuguese
Civil Code with the corresponding provisions in the Act of 2016.
Provision by Provision he has drawn a comparison with various
Articles in the Civil Code, as against the provisions in the Act of
2016, right from the stage when the inheritance/succession opens
with the presence of common features in both the statutory regime.
5 (1978) 1 SCC 248.
6 (2011) 6 SCC 570.
7 (1983) 2 SCC 33.
8 (2004) 1 SCC 663.
9 (201) 5 SCC 1.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
31/119
According to Mr.Desai, when Section 13 provides for transmission of
ownership and possession of the inheritance to the heirs, whether
instituted or legal. As Section 13 corresponding to Article 2011
provide that the transmission takes place from the moment of the
death of the estate leaver, according to him, the word ‘Transmission’
in its strictest sense is the devolution of property upon some person
by operation of law, unconnected with any direct act of the party to
whom the property is transmitted.
39 . Mr. Desai would place reliance upon the decision in case of
Lekh Raj (dead) through legal representatives & Ors. vs. Ranjit
10
Singh and Ors , and rely upon the following observations in the law
report.
17. It is clear from the fact that the suit was filed in 1962 whereas the
“
appellate court passed the decree in 1965 and the amendment in the Act was
introduced and came into force in 1973. So the lis had already attained the finality
much before the amendment came into force.
Second, the amendment was held retroactive in nature as would be clear from
para 4 of Kesar Singh, which reads as under: (SCC P. 713)
‘4. The controversy is no longer res integra. This Court in Darshan Singh v.
Ram Pal Singh considered the effect of the Amendment Act, 1973 on the customary
right of the Punjab Custom (Power to Contest) Act, 1920 and held that: (SCC p. 219,
para 51)
51. Considering the above principles, the provisions of the principal Act, the
Statement of Objects and Reasons and the provisions of the Amendment Act and the
decisions of the Punjab High Court and of this Court, we are of the view that Section
7 of the Principal Act as amended by the Amendment Act is retroactive and is
applicable to pending proceedings. The decisions of this Court dated 28-11-1986 in
Ujaggar Singh v. Dharam Singh and in Udham Singh v. Tarsem Singh do not need
reconsideration.’
19. Third, the amendment being retroactive, it was applicable only to those
proceedings, which were pending on the date when the amendment came into force
i.e. 1973, or where the proceedings were initiated after the date of amendment.
20….
21. If the right of the parties had already been crystallised then, in our opinion,
subsequent change in law would not take away such rights which had attained
finality due to lis coming to an end inter se the parties prior to such change.”
10 (2018) 12 SCC 750.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
32/119
40 . Mr. Desai has also invoked the principle laid down in S.
11
Sundaram Pillai vs. V.R. Pattabiraman , which has highlighted the
scope of the explanation appended to a provision as in this, we are
called upon to decide the scope of the explanation appended to
Section 52, and the argument of the Petitioners is, that it is given
effect to retrospectively. According to him, when the Apex Court
examined the object of an explanation to a statutory provision, it
culled out its purpose being; a) to explain the meaning and
intendment of the Act itself, b) when there is obscurity or vagueness,
to clarify the same so as to make it consistent with the dominant
object which it seems to subserve or, c) to provide additional support
to the dominant object of the Act. However, it is submitted by
Mr. Desai that an ‘Explanation’ only explain and does not expand or
add to the scope of original Section. Ultimately, according to Mr.
Desai, an ‘Explanation’ must be interpreted according to its own
tenor.
41. For the proposition that ‘vested right’ is permitted to be taken
away only if the law specifically or by necessary implication provides
for such course, he would also place reliance upon the decision in
case of J.S. Yadav (supra) which is also invoked by Mr. Frias, in
support of his submission. Reliance is also placed on the decision of
12
the Apex Court in SEBI vs. RajKumar Nagpal and Ors , which has
explained the concept of ‘retroactivity’ and which has held that
merely because a law operates on certain circumstances, which are
antecedent to its passing, does not mean that it is retrospective.
11 (1985) 1 SCC 591.
12 (2023) 8 SCC 274.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
33/119
Lastly he would also place reliance upon the decision in case of
13
Vineeta Sharma vs. Rakesh Sharma and Ors , when the
Constitution Bench of the Apex Court while answering a reference
regarding the interpretation of amended Section 6 of the Hindu
Succession Act, 1956, has held that, though the rights conferred
under the amended Section can be claimed from the date of the
amendment, the provisions have retroactive application i.e. they
confer benefits based on the antecedent right i.e., rights given by
birth and the Mitakshara Coparcenary law shall be deemed to include
a reference to a daughter as a coparcener. According to him, it is
authoritatively held that the provision is not retrospective as the rights
and liabilities thereunder are to exist from the commencement of the
amendment Act.
From the submissions of Mr. Desai, we find him to be partly
supporting the case of the Petitioner and partly opposing it.
42 . Mr. Gauravvardhan Nadkarni has filed application MCA No.
2666 of 2025, for intervention in support of the Petitioner in raising a
challenge to the validity of the amendments and he has restricted his
submissions to the effect of amendment on the matrimonial regime of
‘separation of assets’.
According to him, in the State of Goa, the Civil Court has
recognized marriage between two adults to be a contract, giving
choice to the two consenting adults, prior to solemnization of
marriage, to execute and register a marriage with their choice of
matrimonial regime, which can be either ‘communion of assets’ or
‘separation of assets’. In case of separation of assets, the spouses
13 (2020) 9 SCC 1.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
34/119
enter into an binding agreement that either of them will not have any
ownership right/interest/title qua the individual assets of other, either
inherited or self acquired. This is also referred to as a prenuptial
agreement, which according to Mr. Nadkarni is sui generis to the
State of Goa, and is premised on the principle of ‘decisional
autonomy’, where the consenting adults have right to choose the
matrimonial regime, which not only govern the relationship between
the parties during the marriage, but also continue to govern them,
even after the death of either spouse.
43 . His submission revolve around the concept of legitime and
disposable portion envisaged under Section 83. He would submit that
prior to the amendment 2023, the legitime was in favour of the
descendants, to the extent of the half of the inheritance and in the
event, there were no descendants, legitime in favour of the ascendants
was also half the inheritance. Therefore, according to Mr. Nadkarni in
case of separation of assets in a matrimonial regime, the estate leaver
had a right to dispose of minimum half (50%) of his/her estate as per
his/her personal autonomy, while under the communion of assets,
matrimonial regime, such minimum disposable portion was one
fourth and this provision ensured that the estate leaver had right to
exercise the personal autonomy qua the restricted disposable
portions. However, because of the amending Act 2023, the legitime
of descendants has continued to be half, but in case there are no
descendants than the legitime of the surviving spouse is kept as the
entirety of the inheritance (100%). In case there are no descendants
and surviving spouse, than the legitime of the parents is also in
entirety in terms of the amended provision. Therefore, according to
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
35/119
him, the amendment is contrary to the principle of personal autonomy
as the estate leaver has been deprived of his/her right to dispose a
minimum portion of his/her estate as per his wishes, irrespective of
the matrimonial regime. In short, according to Mr. Nadkarni, the
amendment to Section 83 is arbitrary, as it deny the basic right to the
estate leaver to dispose any single portion or percentage of any
inheritance as per his wish and has deprived him of his personal and
decisional autonomy.
44 . It is the submission of Mr. Nadkarni that prior to amendment,
the surviving spouse was at serial no. (iv) in the order of succession,
which in effect protected the sanctity of prenuptial agreement for
separation of assets and this provision which was applicable in the
State of Goa for decades, and even codified in the Act of 2016,
however, after the Amendment Act of 2022 and 2023, the re-
arrangement of the order of succession has in effect rendered the
implementation of separation of assets regime redundant on death of
any spouse, which deprive the spouses of their ‘decisional autonomy’
and this according to him, is manifestly arbitrary. The amendments
according to him, do not envisaged any exception or classification
between the matrimonial regimes of ‘communion of assets’ and
‘separation of assets’.
The submission of Mr. Nadkarni, therefore is, that though the
amendments do not in object or form affect the right of the individual
but in effect it deprives the right of the individual in a prenuptial
agreement who have agreed for separation of assets matrimonial
regime.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
36/119
Mr. Nadkarni would invoke the principle laid down by the
Apex Court in the 9 Judges decision in case of K.S. Puttuswamy vs.
14
Union of India , where it is held that a right to make choices is
innate to dignity, and without such ability to make choices,
inviolability of the personality would be in doubt. As per the said
decision, autonomy of the individual is the ability to make decisions
on vital matters like family, marriage, procreation, sexual orientation
etc, which is integral to dignity, and based on the principle of privacy
in conjunction with Article 21. According to Mr. Nadkarni, it is by
this time well settled that privacy and autonomy are intrinsically
linked and the amendments under challenge, in effect has deprived
the individual of the object of the decisional authority as, when the
adults consenting spouses, out of free will and in exercise of
fundamental right of decisional autonomy agreed to the matrimonial
regime of the separation of assets, the amendment in Section 52 and
83 has nullified such object/purpose by operation of law, thereby
completely negating the autonomy of the spouse.
It is also his submission that if there are no descendants and
there is a surviving spouse as well as surviving parents than the
entirety of inheritance is legitime of the spouse and the estate leaver
has no right to leave anything for his/her parents and this is arbitrary
as it is contrary to the basic duty of every child to maintain and
secure the life of his/her parents.
(III) Submissions of Private Respondent in WP No. 81 of 2025
45 . We have also heard Mr. Rohit Bras De Sa, who has advanced
exhaustive submissions on crystallization of rights under the Act of
14 (2017) 10 SCC 1
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
37/119
2012, by juxtaposing to the key provisions in the Portuguese Civil
Code.
Through his submissions, he seek a declaration that under the
Goa Succession, Special Notaries and Inventory Proceedings, 2012,
(as amended), individual inheritance rights do not crystallise at death
but only upon completion of partition through court decree/
confirmation or registered deed. He request the Court to hold that the
amended order of succession under Section 52(1) applies to all
partition proceedings pending at the time of 2023 amendment and
further confirm that only rights already perfected through final
decree/confirmation or registered partition deed prior to 2023 are
protected as ‘crystallized rights’ by virtue of the explanation to
Section 52(1). According to Mr. De Sa, under the Act of 2012 the
individual inheritance right do not crystallize upon death, but they
crystallize only upon completion of statutory partition process.
According to him, the Act of 2012 creates a legal framework
that marks a distinction between: a) the opening of succession and
universal transmission at death, and b) the subsequent determination
and separation of individual shares either through judicial inventory
proceedings culminating in a final decree/confirmation or a registered
deed of partition following declaration of ownership. According to
Mr. De Sa, the 2023 amending act, is the definitive evidence of this
distinction by expressly applying the amended succession order to
‘cases/appeals pending’ while preserving ‘the crystallized rights’ and
therefore, according to him, the rights are not crystallized upon death.
46 . For the aforesaid proposition formulated, Mr. De Sa would
invite our attention to the statutory framework contained in Act of
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
38/119
2016 covering Section 8 for opening of succession and Section 13,
for the transmission of inheritance. According to him, both the
provisions establish the triggering event i.e. death and transmission,
but neither provision determines or separate individual entitlement. It
is his submission that the indivisibility continues till partition and that
the inheritance remains indivisible until partition is effected and this
inference is drawn by him based on Section 16 and 17. The statute
according to him provides two comprehensive ways which lead to
crystallization of rights of individuals, but both of them require
formal process beyond the mere fact of death and this according to
him covers (1) Partition by Inventory (Section 14) and (2) Partition
by Deed (Section 15).
In both the processes, according to him, there is involvement of
judicial proceedings, declarations, registrations and confirmations
and therefore, he would submit that the legislature envisaged
crystallization as occurring through these culminating acts and not
automatically upon death.
47 . Mr. De Sa has also taken us through the provisions of declaration
of heirship and the structure of the inventory proceedings. He would
submit that the elaborate procedural framework prescribed would be
rendered redundant if the rights crystallize automatically on death, and
the existence of the exhaustive framework according to Mr. De Sa,
would demonstrate the legislature’s understanding by determination and
separation of an individual right requires formal process beyond the
mere fact of death. According to him, the Act of 2016 has integrated
succession principles with that of Partition, so as to crystallize the rights
and according to him, the structure of the enactment progresses from
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
39/119
opening of succession to transmission and further to indivisibility, until
partition. According to him, a bare look at Section 17 and 18 gives a
clear indication as Section 17 prohibits transfer of specific assets until
partition and Section 18 prescribes that an heir may recover the whole
of the estate or part thereof in possession of a third party confirming
collective rights before partition. Thus, according to him, while status of
a ‘Heir originate upon death, the determination and separation of
specific shares (crystallization) occurs only through partition.
Therefore, according to Mr. De Sa, the court should hold that
the rights do not crystallize upon death but only upon final decree/
confirmation in inventory proceedings or upon execution of a
registered deed of partition following declaration of heirship and his
request is to apply the amendment provision to all matters pending at
the time of its enactment.
[G] SUBMISSIONS OF THE LEARNED ADVOCATE
GENERAL ON BEHALF OF THE STATE.
48 . The learned Advocate General Mr.Pangam, by invoking the
principle of law laid down in Union of India & Ors. Vs. Exide
15
Industries Limited & Anr. , at the outset, would submit that reliance
on the Statement of Objects and Reasons (SOR) set out by the
legislature, in enacting a provision in a statute, may not be the only
guiding factor, when the Court consider its validity. He would submit
that it would signify intention of the legislature behind the enactment
and it can lead the Court in discerning the true intent of the
legislature and would be useful in understanding the import of an
enacted provision, as and when the Court is called upon to interpret
15 (2020) 5 SCC 274
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
40/119
the same. However, according to him, the SOR appended to the Bill
are not admissible as an aid in construction of the Act to be passed,
but it can be used for limited purpose of ascertaining the condition,
which prevailed at the time which necessitated making of the law and
the mischief which is sought to be remedied. Thus, it can be used for
the purpose of ascertaining the objective in enacting the statute or a
particular provision and it can serve a limited purpose of deciphering
the object and purport of the Act.
He would invoke the principle laid down by the Apex Court in
16
Sanjeev Coke Mfg.Co. Vs. Bharat Coking Coal Ltd. , where the
Apex Court observed thus :-
“25. ...No one may speak for Parliament and Parliament is never before
the court. After Parliament has said what it intends to say, only the court may
say what the Parliament meant to say. None else. Once a statute leaves
Parliament House, the Court is the only authentic voice which may echo
(interpret) the Parliament. This the court will do with reference to the language
of the statute and other permissible aids.”
49 . According to Mr.Pangam, there is presumption about the
constitutionality of a statute and the constitutional validity of a
provision can be challenged on very limited grounds; the foremost
being the legislative competence of the legislature in enacting the
statute and secondly in testing whether it is violative of the
fundamental rights. He would submit that when there is no ambiguity
about the legislative competence and of the import of the enactment,
the SOR serve the limited purpose and can be looked into by
restricting its use for ascertaining the intention of the legislature.
The learned Advocate General would also urge that it is
impermissible to strike down a statute or a provision in statute by
16 (1983) 1 SCC 147
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
41/119
attributing non application of mind or malafides to the legislature or
by alleging that the prevailing circumstances did not warrant the
introduction of the provision. According to him, the legislative action
under the Constitution is subject only to the limitations prescribed by
the Constitution and to none other.
He would invoke the principle laid down by the Constitution
Bench decision in the case of T.Venkata Reddy & Ors. Vs. State of
17
Andhra Pradesh , while testing the validity of an Ordinance issued
under Articles 213 and 123 and he would submit that the principle
laid down, which is applicable to Ordinance, shall apply with equal
force to a Statute and he would invoke the following passage from
the said decision:-
“14. The above view has been approved by another Constitution Bench of
this Court in A.K. Roy v. Union of lndia. Both these decisions have firmly
established that an ordinance is a 'law' and should be approached on that basis.
The language of clause (2) of Article 123 and of clause (2) of Article 213 of the
Constitution leaves no room for doubt. An ordinance promulgated under either
of these two articles has the same force and effect as an Act of Parliament or an
Act of the State Legislature, as the case may be. When once the above conclusion
is reached the next question which arises for consideration is whether it is
permissible to strike down an Ordinance on the ground of non-application of
mind or mala fides or that the prevailing circumstances did not warrant the issue
of the Ordinance. In other words, the question is whether the validity of an
Ordinance can be tested on grounds similar to those on which an executive or
judicial action is tested. The legislative action under our Constitution is subject
only to the limitations prescribed by the Constitution and to no other. Any law
made by their legislature, which it is not competent to pass, which is violative of
the provisions in Part III of the Constitution or any other constitutional provision
is ineffective. It is a settled rule of constitutional law that the question whether a
statute is constitutional or not is always a question of power of the Legislature
concerned, dependent upon the subject matter of the statute, the manner in
which it is accomplished and the mode of enacting it. While the courts can
declare a statute unconstitutional when it transgresses constitutional limits, they
are precluded from inquiring into the propriety of the exercise of the legislative
power. It has to be assumed that the legislative discretion is properly exercised.
The motives of the Legislature in passing a statute is beyond the scrutiny of
courts. Nor can the courts examine whether the Legislature had applied its mind
to the provisions of a statute before passing it. The propriety, expediency and
necessity of a legislative act are for the determination of the legislative authority
and are not for determination by the courts. An Ordinance passed either under
17 (1985) 3 SCC 198
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
42/119
Article 123 or under Article 213 of the Constitution stands on the same footing.
When the Constitution says that the Ordinance-making power is legislative
power and an Ordinance shall have the same force as an Act, an Ordinance
should be clothed with all the attributes of an Act of Legislature carrying with it
all its incidents, immunities and limitations under the Constitution. It cannot be
treated as an executive action or an administrative decision.”
50 . Mr.Pangam has also asseverated that the motive of the
legislature in passing a statute is beyond the scrutiny of the Courts
and by no means, the Courts can infer legislative malice in enacting a
statute, as what can be tested is only the constitutional aspect of a
provision/statute i.e. whether it was within the limits of the legislature
to enact the law and whether it violate the fundamental rights
enshrined in Part III or it is ultra vires the Constitution.
Definitely, according to Mr.Pangam, while the Courts can
declare a Statute unconstitutional, when it transgresses the
constitutional limit, but the propriety of exercise of the legislative
power is beyond the scope of the Courts exercising writ jurisdiction
and there is a assumption that the legislative discretion is properly
exercised. Thus, it is the submission of Mr.Pangam that the intention
of the legislature in bringing the Amendments in the Act of 2012 is
beyond the pale of judicial review and its validity cannot be tested by
considering its after effect, by holding that the provision is
unconscionable or arbitrary or it deprives one class of beneficiaries
and confer the benefit on the other, as this is not sufficient to hold a
provision unconstitutional. The examination by the Court to
determine the validity of a provision is restricted only to
constitutional infirmity, but in no way, the wisdom of the legislature
can be called into question, according to Mr.Pangam.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
43/119
51 . Coming to the Act of 2012, Mr.Pangam would submit that the
existing order of legal succession placed the ascendants as well as the
brothers and sisters and their descendants over the spouse and,
therefore, he/she would take a back seat over the category of persons
entitled to succeed the deceased, and this order and disadvantage to
the spouse is sought to be overcome by the State Legislature.
Meeting the contention raised on behalf of the petitioners that
the provision is retrospective in operation, he would submit that
merely because a provision in law is given retrospective effect, per se
do not make it bad. He would submit that whenever an amendment is
introduced retrospectively or any provision of the Act is deleted
retrospectively, rights of some are bound to be affected one way or
the other, but that by itself do not constitute violation of Article 14,
making the provision arbitrary. Mr.Pangam would place reliance
upon the decision in the case of State Bank’s Staff Union (Madras
18
Circle) Vs. Union of India & Ors . and he would rely upon the
following observations :-
“19. Every sovereign legislature possesses the right to make retrospective
legislation. The power to make laws includes the power to give it retrospective
effect. Craies on Statute Law (7th Edn.) at p. 387 defines retrospective statutes in
the following words:
"A statute is to be deemed to be retrospective, which takes away or impairs
any vested right acquired under existing laws, or creates a new obligation, or
imposes a new duty, or attaches a new disability in respect to transactions or
considerations already past."
20. Judicial Dictionary (13th Edn.) by K.J. Aiyar, Butterworth, p. 857, states that
the word "retrospective" when used with reference to an enactment may mean (I)
affecting an existing contract; or (ii)reopening up of past, closed and completed
transaction; or (iii) affecting accrued rights and remedies; or (iv) affecting
procedure. Words and Phrases, Permanent Edn., Vol. 37-A, pp. 224-25, defines a
“retrospective or retroactive law" as one which takes away or impairs vested or
accrued rights acquired under existing laws. A retroactive law takes away or
impairs vested rights acquired under existing laws, or creates a new obligation,
18 (2005) 7 SCC 584
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
44/119
imposes a new duty, or attaches a new disability, in respect to transactions or
considerations already past.
21. In Advanced Law Lexicon by P. Ramanath Aiyar (3rd Edn., 2005) the
expressions "retroactive" and "retrospective" have been defined as follows at
p. 4124, Vol. 4:
"Retroactive.—Acting backward; affecting what is past.
(Of a statute, ruling, etc.) extending in scope or effect to matters that have
occurred in the past. — Also termed retrospective. (Black's Law Dictionary, 7th
Edn., 1999)
"Retroactivity" is a term often used by lawyers but rarely defined. On
analysis it soon becomes apparent, moreover, that it is used to cover at least two
distinct concepts. The first, which may be called "true retroactivity", consists in
the application of a new rule of law to an act or transaction which was
completed before the rule was promulgated. The second concept, which will be
referred to as "quasi-retroactivity", occurs when a new rule of law is applied to
an act or transaction in the process of completion.... The foundation of these
concepts is the distinction between completed and pending transactions...’ T.C.
Hartley, Foundations of European Community Law, p. 129(1981).
*
Retrospective.-Looking back; contemplating what is past.
Having operation from a past time.
'Retrospective' is somewhat ambiguous and that good deal of confusion has
been caused by the fact that it is used in more senses than one. In general,
however, the courts regard as retrospective any statute which operates on cases
or facts coming into existence before its commencement in the sense that it
affects, even if for the future only, the character or consequences of transactions
previously entered into or of other past conduct. Thus, a statute is not
retrospective merely because it affects existing rights; nor is it retrospective
merely because a part of the requisite for its action is drawn from a time
antecedent to its passing."
(Vol. 44, Halsbury's Laws of England, 4th Edn., p. 570, para 921.)
52 . The learned Advocate General, would submit that when it is
competent for the legislature to change the basis on which the
decision is given by the Court and the changed law will affect class
of persons and events at large, it is not uncommon to give effect to
the same retrospectively. In the light of the status conferred upon the
spouse i.e. husband or wife under the Portuguese Civil Code as well
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
45/119
as under the Goa Succession Act, 2012, where there is a concept of
communion of properties and with this concept ingrained since
considerable length of time, recognising the communion between
spouses of all their assets, present and future in the marriage, the
learned Advocate General would submit that a spouse stands on a
different footing than a co-owner, as conjugal communion is
dissolved only by death or divorce and also by separation.
According to him, the spouses married under the regime of
communion under the Portuguese Civil Code are owners in common
and not the joint owners. Co-ownership is permitted to be
partitioned at any time, when the party desires, but conjugal
communion can only be dissolved for the causes and reasons
stipulated in the Code i.e. dissolution of marriage (death or divorce)
or by separation, in accordance with law.
As per Article 1122, Mr.Pangam would submit that in the case
of death of either spouse, the survivor shall continue in the possession
and the administration of the matrimonial estate till finalization of
partition, except in respect of incommunicable assets of the deceased,
where the legal successor is a minor, the father or the mother shall
continue the administration. According to Mr.Pangam, the legislature
thought it appropriate to bring the surviving spouse up in the order of
legal succession after the descendants to be followed by the
ascendants, the brothers and sisters and their descendants, and on the
collaterals not comprised in clause 4 upto six degree. According to
Mr.Pangam, the legislature has thought it appropriate to confer the
surviving spouse its due.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
46/119
53 . The learned Advocate General deal with the argument
advanced on behalf of the Petitioners, that the vested right in the heirs
as per the succession order is taken away. He would invite our
attention to the inventory proceedings under the Act of 2012 and
submit that the proceedings are mandatory, when the deceased leave
the surviving spouse or heir, who is a minor, interdict, absent person
or unknown as provided under Section 366 of the Act. However,
under Section 367, the inventory proceedings are optional at the
election of the interested parties or they opt to partition the estate by
way of Deed of Partition, with consensus. According to him, Section
368 apply for partition upon divorce, separation or annulment of
marriage while Section 376 governs dissolution of joint families.
According to Mr.Pangam, the jurisdiction to entertain
inventory proceedings vests in the Court, when succession opens as
determined under Section 373, and pursuant thereto, any interested
party, as defined in Section 375(3), may institute inventory
proceedings.
It is upon the receipt of such petition, the Court shall proceed
to exercise the power under Section 376 to appoint the ‘Head of the
family’ in accordance with the priority prescribed under Section 247
and within each category, according to Mr.Pangam, there is a
provision for preference to the heirs residing with the deceased and to
the elderly heirs.
54 . Inviting our attention to the entire procedure to be followed by
the Court, including issuance of summons to the Moiety holder,
Heirs, Spouses, Legatees and Creditors, it is pointed out to us that the
procedure would result in preparation of initial list of assets and
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
47/119
inviting objections to the same to be followed by deletion and
decision on the ownership disputes, if they could be summarily
determined or else permitting the parties to file civil suits.
The aforesaid is followed by valuation of the inheritance as on
the date of opening of succession to be followed by the finalization of
list of assets and liabilities by the Court incharge of inventory
proceedings, to be followed by the division of the immovable
properties by metes and bounds by means of allotment by drawing of
lot and appointment of commissioner to assess divisibility of the
property as per subdivision and the execution of the subdivision, with
indivisible proceeding to licitation.
Mr.Pangam has also invited our attention to the scheme of
partition, as contemplated under the Act and the methodology
prescribed for the finalization of the scheme and it is his specific
submission that it is only upon this entire process being followed, the
‘Vesting’ of the property takes place and as opposed to the
submission of the learned counsel for the Petitioners, that the moment
the estate leaver dies, the right of inheritance is ‘vested’. According
to him, after the death of the estate leaver, the proceedings are to
travel ahead as contemplated under the Act and the right of the
successor is crystallization, only on going through the entire process.
That is why, according to Mr.Pangam, Section 13 of the Act has
applied the term “transmitted”, which in no case, is equivalent to
vesting or crystallizing. According to him, succession is transmission
of estate, but inheritance as defined in Section 6 is a wider term, as it
comprises of all the properties, rights and obligations, which are left
behind the deceased.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
48/119
In the alternative, he would submit that even if a right is
vested, there is no prohibition in taking away the right. He has relied
upon the authoritative decisions, to establish what amounts to a
‘Vested right’ and it is his submission that a vested right is the one,
which is not contingent and it must be crystallized on the date on
which it is conferred, but in the present case, it is his submission that
merely because there is a transmission of the estate, it is not
equivalent to vesting of it in the successor.
55 . On the aspect of retrospectivity, the learned Advocate General
would rely upon the decision in case of Manish Kumar (supra), and
in particular paragraph no. 404 and 406, where the Apex Court has
clarified that a statute is not retrospective merely because it affects
existing rights and if the existing right is modified or taken away and
it is to have operation only from the date of new law, it would
obviously have prospective operation. He has also invoked the
observations of the Apex Court in paragraphs 434 to 437, where it is
categorically held as below:-
“A vested right under a statute can be taken away by a
retrospective law. A right given under a statute can be
taken away by another statute. We cannot ignore the fact
that there was considerable public interest behind such a
law”
56 . According to Mr. Pangam, if the validity of a statutory
provision is called in question, the burden lies upon the party who
calls the same in question, to satisfy that the provision is manifestly
arbitrary. What is manifest arbitrariness, according to Mr.Pangam, is
well settled and by referring to the submissions advanced on behalf
of the Petitioners raising a challenge to its validity, he would submit
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
49/119
that none of the argument advanced has made out a case for manifest
arbitrariness. The argument advanced, according to Mr.Pangam, is
merely based on some hardships and harsh consequences for a
particular class, who has been pushed below, cannot be a ground to
call it in question. It is his submission that when the legislature enacts
a law, it is the duty of the Court to discern its intention and merely
because it would put one class to a disadvantageous position or cause
hardship, it cannot be a ground to declare it unconstitutional. Further
according to him, it is impossible for the legislature to anticipate fully
the varied situation arising in future in which the application of the
legislation in hand may be called for and the Courts are not entitled
to usurp the legislative function under the disguise of interpretation
and would normally avoid the danger of determination of the
meaning of a provision based on their own preconceived notions of
ideological structure or scheme into which the provision to be
interpreted is somehow fitted. Any hardship or inconvenience on
implementation of provision is not the test by which the validity of a
legislation can be tested, according to Mr.Pangam.
He would rely upon the following observations of the Bombay
High Court in the case of Best Worker’s Union Vs. Union of India &
19
Ors . :-
“16. When a legislative policy is enunciated with sufficient clearness or a
standard is laid down, the courts should not interfere. What guidance should be
given and to what extent and whether guidance has been given in a particular
case at all depends on consideration of the provisions of the particular Act with
which the court has to deal with including its Preamble. In order to strike down
a legislation, the party has to satisfy that the legislation is totally unreasonable
or manifestly arbitrary. The expression of ‘arbitrary’ means act done in an
unreasonable manner, capriciously or at pleasure without adequate determining
principle, not founded in the nature of things, non-rational, not done or acting
according to reason or judgment, depending on the will alone. The law cannot
19 2016 SCC OnLine Bom 9279
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
50/119
be declared ultra vires on grounds of hardship but can be done so on the ground
of total unreasonableness. In order to declare an act ultra vires, under Article
14, the court must be satisfied that there is substantive unreasonableness in the
statute.”
57. Mr.Pangam would also invite our attention to the decision in
the case of Vineeta Sharma Vs. Rakesh Sharma (supra) and the
spirit underlying the said decision, the pronouncement involving
Section 6 of the Hindu Succession Act, 1956, substituted by the
Hindu Succession (Amendment) Act, 2005 w.e.f. 09/09/2005, when
the Apex Court determined the Daughter’s right in Coparcenary
property under substituted Section 6 and held that the daughter born
before the date of enforcement of 2005 Amendment Act shall enjoy
the same rights as daughter born on or after the amendment and held
that it is not necessary that the coparcener father shall be alive on the
date of coming into force of the said amendment and if a daughter is
alive on the date of the enforcement of the amending Act i.e.
09/09/2005, she becomes a coparcener with effect from the said date,
irrespective of whether she was born before the said amendment.
58 . Dealing with the argument of Mr. Nadkarni that if a prenuptial
agreement is entered into by a couple, but on death the succession
shall be as per the order of succession as prescribed, he would invite
our attention to Article 1096 included in Section 5 of the Portuguese
Civil Code, 1867 and the presumed regime of assets, under the
communion of the acquired assets. He would rely upon the
observations of the Division Bench in the case of Palmira Cota E
20
Dias (deceased) Vs.Odette Irene Dias Rodrigues & Ors . to buttress
his submission that in such a scenario Article 2003 of Portuguese
Civil Code shall come into force and he would rely upon the
20 2011 (1) Mh.L.J. 592
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
51/119
following observations of the Division Bench.-
“9. Article 2003 of the Portuguese Civil Code provides as under :
“In the absence of descendants or ascendants and of siblings and their
descendants, the surviving spouse shall succeed if, at the time of the other
spouse’s death, they were not divorced or separated of persons and property
by a judgment in a condition of res judicata.
Single unico, in the absence of descendants and of ascendants, in
accordance with Articles 2000 and 2002, the surviving spouse shall have the
right of usufruct over the deceased spouse’s inheritance, if at the time of
latter’s death they were not divorced or separated of persons and property by
a judgment in a condition of res judicata.” (Emphasis supplied)
10. There is no dispute that the marriage between the deceased appellant and
the said Antonio Climaco Gavinho Dias was governed by separation of assets in
th
view of the Ante-nuptial Agreement dated 8 February, 1960 executed by them at
the time of their marriage which is at Exhibit Pw.1/B collectively. The said
Agreement has been executed in terms of Article 1096 of the Portuguese Civil
Code, which provides that it is lawful for the spouses to stipulate, before the
solemnization of their marriage and within the bounds of law, whatever they
think fit in respect of their properties.
11. The execution of such Ante-nuptial Agreement between the couple, does not
deprive any of them the benefits of the provisions of the Code relating to
successions. Article 1096 of the Code gives full liberty to the couple to make an
arrangement with regard to their respective properties with a clog that they
cannot make any agreement which is contrary to the provisions of law. On a
plain reading of Article 2003 of the Portuguese Civil Code, in the absence of any
descendants or ascendants and of siblings and their descendants, the surviving
spouse shall succeed if at the time of the other spouse’s death, they were not
divorced or separated of persons and property by a Judgment in condition of res
judicata. It further provides that in the absence of descendants and ascendants
in accordance with Articles 2000 and 2002, the surviving spouse shall have the
right of usufruct over the deceased spouse’s inheritance, if at the time of latter’s
death they were not divorced or separated of persons and property by a
judgment in a condition of res judicata.”
Thus the learned Advocate General assertively submit that the
challenge to the validity of Amending Act of 2022 and 2023 must be
negated, it being without any substantial merit.
[H] ANALYSIS OF THE RIVAL SUBMISSIONS AND THE
DECISION
(I) Understanding the provisions of the Act of 2012 in the backdrop of
the Portuguese Civil Code.
59. The Goa, Daman and Diu (Administration) Act, 1962, is a
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
52/119
special law dealing with the domiciles of Goa and this special law
makes the Portuguese Civil Code applicable to the Goans, who are
carved out of the General laws of succession i.e. the Indian
Succession Act, 1925, Hindu Succession Act, 1956 and the Muslim
Personal Law (Shariat) Application Act, 1937 and other laws. Upto to
the conquest of Goa, the Parliament permitted the personal matters of
the domiciles of Goa to be governed by the Portuguese Civil Code,
and this included subjects like marriage, succession etc. By virtue of
the Act of 1962, the laws applicable in Goa prior to 20/12/1961, when
Goa was liberated from Portuguese rule were continued to remain in
force until it is amended or repealed by the competent legislature.
Portuguese Civil Code, 1867 was applicable in the State of Goa
before its liberation and it continued to govern the subject of
succession, marriage, etc. When the Goa Succession Special Notaries
Inventory and Proceedings Act, 2012 was enacted, covering one of
the subjects of persona law i.e. succession, with the Act being
brought into force in State of Goa in the year 2012, Section 460
thereof repealed all provisions of the laws in force corresponding to
any provisions in the Act and therefore, from the date of coming into
force of the Act 2012, the subject of succession; intestate and
testamentary is governed by the Act of 2012.
It is in this background, the Hon’ble Apex Court in Jose Paulo
21
Coutinho vs. Maria Luiza Valentina Pereira observed thus:-
“21. It is important to note that this Court held that insofar 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
21 (2019) 20 SCC 85
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
53/119
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 present 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.
22. We are clearly of the view that these laws would not have been
applicable unless 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 law. It is no longer a foreign law. Goa
is a territory of India; all domiciles of Goa are citizens of India; the
Portuguese Civil Code is applicable only on account of the Ordinance
and the Act referred to above. Therefore, it is crystal clear that the
Code is an Indian law and no principles of private international law
are applicable to this case. We answer question number one
accordingly.”
60 . The Act of 2012, which has codified the law relating to
succession is preceded by provisions in the Civil Code as regards
intestate succession and Article 1968, in Chapter III Section 1 to 9
provided for the order of succession in case of intestate succession
and Article 1969 prescribe thus :
“Intestate succession shall occur in the following order, 1) to the descendants
; 2) to the ascendants except in case of Article 1236; 3) to the siblings and
their descendants; 4) to the surviving spouse; 5) to colateral relatives not
included in No.3 upto to 10th decree; 6) to the State treasury, with the
exception of provisions of Article 1663.”
Article 1968 to Article 1979 collated the provisions governing
intestate succession and as per Article 1973 each generation
constituted a degree and a series of degrees constituted linen of
kinship.
Intestate succession as per the Code occur automatically ipso
jure and for it to comply, there must be total or partial absence of
will and the successor in question must bear some legal relationship
to the deceased. The Code provided for the line of inheritance with
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
54/119
specific enumeration of the degrees of the kinship and prescribing
the lineal line of ascendant of the descendant.
Chapter IV of the Code contains the provisions common to
testamentary succession and intestate succession and the prominent
Article 2009 declare that the inheritance is opened as a result of death
of its author and it determine the place of opening of the inheritance.
Article 2011 read thus :
“The transmission of ownership and possession of the inheritance to
the testamentary or intestate heirs shall occur at the moment of the
death of its author.”
Under the Code, if the heir is an absentee, a minor or an inter
dictated, or unknown person, the Court was authorized to carry out
inventory and the partition, if it has to be carried out, but if the heirs
are major, they may agree, as they deem fit on partition as long as it
is done by Deed or document executed under Seal. Under Article
2014, the heirs succeed to all the rights and obligations of the author
of the inheritance as long as they are not strictly personal or excluded
by law or by the author. By virtue of Article 2015, if several persons
are entitled simultaneously to the same inheritance, their right over it
shall be indivisible, regarding both, possession and ownership, as
long as there is no partition.
61. The provisions of the Goa Succession Special Notaries and
Inventory Proceedings Act, 2012, which has codified the law of
intestate and testamentary succession and the law relating to partition
of an inheritance in the State of Goa must be understood against the
law governing the State of Goa through the Portuguese Civil Code.
The provisions contained in Portuguese Civil Code, 1867 has found
its way in the Act of 2012 in relation to marriage and succession, and
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
55/119
we have noted that the Civil Code comprise of provisions relating to
marriage in Articles 1056-1239.
62 . As per Article 1056, marriage is a perpetual contract between
two persons of different sex with the aim of legitimately constituting
a family. Under the Code, marriage is viewed as secular and
contractual legal relationship.
Section IV of the said Chapter is a provision for annulment
of catholic marriage, and by the ecclesiastical Court and in the
circumstances contemplated by the laws of the Church followed in
the country. The execution of the decrees annulling the marriage
pronounced by a competent Court and its enforcement is also
specifically provided in the Code. Article 1095 prescribe the effect
of annulment on the assets of the spouse as equivalent to the
dissolution of the marriage as far as the properties are concerned.
Article 1108, introduce the concept of communion of
matrimonial assets by providing that the marriage as per the custom
of the country consisting communion between spouses of all their
assets, present and future, not excluded by law.
Section V of the Chapter, provide for ante nuptial conventions
and it is lawful for the spouses to stipulate before solemnization of
their marriage whatever they think fit in respect of their assets. This
permitted the spouses to exit from the matrimonial regime involving
communion of acquired assets as in absence of any Contract, in a
marriage done as per the custom of the country it is deemed that the
spouses are married under simple communion of acquired assets as
per Article 1098.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
56/119
63 . The income accruing to the couple pursuant to a marital tie, a
special feature under the Code, of dividing their property in equal
shares in form of communion of husband and wife, although Article
1109 exclude certain assets from the communion.
The spouses married under regime of communion under the
Portuguese Civil Code thus become the owners in common though
they are differentiated from joint owners as an ownership may be
partitioned at any time when the parties desire, but conjugal
communion can only be dissolved for the causes and reasons stated
in the law (Article 1121) that is dissolution of marriage (death or
divorce or by separation) in accordance with law.
The Civil Code contain various provisions dealing with the
ownership and possession of the common property belonging to the
spouses with certain rights to manage the property being exclusively
vested in the husband. Whenever the spouses declare their intention
through the Contract that they desire to marry as per custom of the
country, the provisions of Article 1108 to 1124 become applicable to
them and when they declare that they want to marry under simple
communion of acquired assets, the provisions of Article 1130 to 1133
are attracted.
There is also provision in form of Article 1101 which provide
that where the spouses declare that they want to marry under
separation of assets then the provisions of Article 1125 to 1129,
providing for separation of assets shall become applicable to them.
One relevant provision in form of Article 1103 in the Code prescribe
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
57/119
as below :-
“Any contract which may change the legal order of succession of
legal heirs or the paternal and conjugal rights and obligations,
laid down by law shall be deemed as not returned”.
Such a contract under the Code is void.
64 . The provisions in the Act of 2012, are lifted from the Civil
Code and included in the Statute which has defined succession as
transfer of estate of the deceased in favour of his successors and
successor is the person under the Act who is called to succeed to the
juridical relations of the deceased person and upon whom the assets
and liabilities devolve.
Chapter II of the Act on the lines of the Civil Code provide that
succession shall open upon the death of the estate leaver and Section
13, contemplate that the ownership and possession of the inheritance
is transmitted to the heirs, the moment the estate leaver dies, both in
case of testamentary or intestate succession.
65 . The Act of 2012 contain specific provisions for partition of the
inheritance as prescribed in form of mandatory inventory and
optional inventory under Section 366 and 367.
Section 368 contain a provision for inventory upon divorce or
separation or annulment of marriage, as it permit the spouses to
partition their assets by instituting inventory proceedings in form of
miscellaneous proceedings appended to the Suit for divorce,
separation of persons or annulment.
Section 369 and 370 are the specific provisions as regards
inventory where a party dies leaving no assets other than those
allotted in the inventory and these two provisions read thus :
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
58/119
“369. Inventory where a party dies after allotment in inventory proceeding
which were finally disposed of - Where, after the partition is effected in any
inventory, any interested party dies leaving no assets other than those that
have been allotted in the inventory, such inheritance shall be partitioned in
the same inventory proceeding that was finally disposed. The person to
whom the office of head of family belongs shall take oath of office and the
procedure set out hereafter shall be applicable.”
“370. Inventory upon death of the surviving spouse. (1) Where the inventory
of a predeceased spouse is concluded, the inventory on the death of the
surviving spouse shall be continued in the former inventory proceeding.
(2) In the event there are additional assets in the proceeding referred to in
sub-section (1), their serial number shall be in continuation of the last item
in the former inventory proceeding.
(3) Where, after allotment or after the death of the surviving spouse,
inventory proceeding is instituted, the assets which have been already
valued in the prior inventory need not be valued again in the subsequent
inventory, unless there are strong grounds to believe that their value has
changed. In the event of change of value of currency, such change shall be
taken into consideration. In addition to the valuation already made, due
description of assets previously made shall be retained. If separate inventory
is filed, the description shall be reproduced in the separate inventory.”
The Act of 2012 also contain provisions as regards acceptance
of inheritance which shall be unconditional and right to renounce the
inheritance by prescribing that acceptance or renunciation of an
inheritance is an entirely voluntary and free act.
(II) The Change in the order of succession, the subject matter of
challenge.
Chapter VI of the Act of 2012, is the provision for legal
succession and this chapter include Section 52 prescribing the order
of legal succession. The Section as it stood originally, is already
reproduced in the earlier part of the judgment and it reveal that the
surviving spouse stood at Serial No.(iv) below the ascendant and the
brother and sisters and their descendants.
The Amendment act, 13 of 2022, brought about the changes
where the surviving spouse comes after the descendants and above
the ascendants and the challenge is raised to this upgradation of the
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
59/119
surviving spouse who now is entitled to succeed after the descendants
and before the ascendants, as well as the brothers and sisters and their
descendants.
By the Amending Act 26 of 2023, in Section 52 of the Act of
2012, stood amended :-
“(1) The legal succession shall devolve in the following order:-
(i) on the descendants;
(ii) on the surviving spouse;
(iii) on the ascendants, subject to the provisions of sub-section (2) of
section 72;
(iv) on the brothers and sisters and their descendants;
th
(v) on the collaterals not comprised in clause (iv) upto the 6 degree;
(vi) on the State, provided that, in the absence of testamentary or
intestate heir of a beneficial owner or of an emphyteusis, the property
shall revert to the direct owner.”
Similarly, there is corresponding amendment in Section 72 of
the Act when sub-section (1) is substituted to read thus :-
“Where a person dies without descendants, and spouse, his father and mother
shall succeed to him in equal shares or to the entire inheritance where only one
of them is living.
Similarly sub-section 3 after the amendment reads as below :-
“(3) Where the parents have acknowledged that they are the parents of a
child during the lifetime of the child, and the child dies without issue and
spouse, the inheritance shall devolve upon his parents or one of them, as
the case may be; where, in the circumstances mentioned above, such child
dies without issue but leaving a surviving spouse, the surviving spouse
shall succeed to the entire inheritance.”
Section 76 in the Principal Act is also amended and pursuant
thereto it read thus :-
“76. Succession of brothers, sisters and their descendants – In default
of descendants, spouse and ascendants and where the estate leaver has not
disposed off his assets, his brothers, sisters and, in a representative
capacity, their descendants, shall inherit the assets.”
Another consequential amendment is effected in Section 77,
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
60/119
which now read thus :-
“In default of descendants, ascendants, brothers, sisters and their
descendants, the surviving spouse shall succeed” the expression “In
default of descendants, the surviving spouse shall succeed,” shall be
substituted.”
Similarly Section 83, providing for the disposable portion, is
also amended and we have already reproduced the amended
provision in the beginning itself.
66 . The amendment Act of 2022 has changed the order of
succession by bringing the surviving spouse at serial no.(ii) after the
descendants and the statement of objects and reasons accompanying
the bill introducing the amendment stated that Section 52 is sought to
be amended so as to rectify the order of legal succession.
The consequence of the aforesaid amendment has simply
changed the order of succession and take an example, where there
exists a couple who is married under the Portuguese law and govern
by the Act of 2012, and one of the spouse demise, the other spouse
being a moiety shareholder, in the wake of communion of assets has
already taken 50% of the share. What remains available to be
succeeded is the balance 50% and in case if there are children born
up to the couple, the children will inherit the estate of their father. If
there are no children, then the estate shall now devolve upon the
surviving spouse and the objection of the Petitioners is that the
surviving spouse has now taken a position ahead of the ascendants
i.e. the parents of the deceased, and in both the Petitions before us, it
is sought to be urge that the right of succession which the parents
would have availed on the demise of their son are deprived and after
the children i.e. the descendant of their son, it is the surviving spouse
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
61/119
i.e. his widow who will take the share and nothing would come to
them.
67 . We must note that the right of succession in a peculiar order
was conferred initially by the Civil Court and thereafter by the Act of
2012 which when enacted followed the order of succession in the
Code. However, the legislature, with a view to rectify the order of
legal succession has amended the provision, where next to the
children of the deceased, the surviving spouse take precedence and
the ascendants take a backseat.
(III) Guiding principles while testing validity of a law made by the
Competent Legislature
68. A statute is an edict of the legislature and the ideal way of
construing a statute is to seek the intention of its maker. A statute, as
enacted, cannot be explained by the individual opinion of the
legislator, nor is it permissible to ascertain its intention by seeking
feedback from the legislature, when it comes for interpretation. After
a statute is enacted, the legislature becomes functus officio and there
is no role for it to play when it comes before the Court for its
interpretation or to deal with the challenge to its constitutionality.
In the Constitutional scheme of this country, the Constitution
has assigned to the Courts the function of testing the validity of a
statute, when subjected to challenge, by considering whether it was
within the competence of the legislature to enact the law and it is in
conformity with the constitutional provisions.
In order to give meaning to the intention of the legislature, it is
expected for the Constitutional Court to step into the shoes of the
legislature to ascertain what was its intention in rolling out the
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
62/119
statute, which is brought into force to do away with some evil or for
advancing some public interest or benefit. The intention of the law
maker can be discerned from the surrounding circumstances
prevailing when the statute was enacted, and the words, used are
‘presumed to be carefully chosen’ by the legislature, as it intend to
achieve a specific object by bringing it into force. At the foremost,
the Court shall make every endeavor to achieve the ‘purpose and
object’ or ‘reasons and spirit’ pervading through the statute. The true
legal meaning of an enactment is thus derived by considering the
meaning of the words applied in the enactment, in light of any
discernible purpose or object which comprehends the mischief and its
remedy to which the enactment is directed.
The Courts shall strongly lean in favour of the constitutionality
rather than the construction which reduces the statute to a futility. A
statute or any enacted provision therein must be so construed so as to
make it effective and operative, on the principle expressed in the
maxim; ‘ Ut ress magis valeat quam pereat ’. It is an application of
this principle that Courts while pronouncing upon the
constitutionality of a statute, begin presumption in favour of
constitutionality, prefer a construction which keep the statute within
the competence of the legislature. That is the precise reason why the
constitutional courts should be slow in declaring a statute invalid for
sheer vagueness, non application of mind etc.
22
69 . In case of R.K. Garg vs. Union of India while examining the
constitutional validity of the Special Bearer Bonds (Immunities and
Exemptions) Ordinance, 1981, which was replaced by the Special
22 (1981) 4 SCC 675.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
63/119
Bearer Bonds (Immunities and Exemptions) Act, 1981, it is held that,
while considering the constitutional validity of a statute, it is
necessary to bear in mind the well established principle, which have
been evolved by the courts as rules of guidance in discharge of its
constitutional function of judicial review. The first rule is, that there
is always a presumption in favour of the constitutionality of a statute
and the burden is upon him who attacks it to show that there has been
a clear transgression of the constitutional principles. A presumption
also exists that the legislature understands and correctly appreciate
the needs of its own people and the laws made by it are directed to
the problems made manifest by experience and when it discriminates
between two classes or confer benefit on one and deny the same to
other, such distinction made by it is based on adequate grounds. The
legislature is free to recognize the degrees of harm and may confine
its restrictions to those, where the need is deemed to be the clearest.
The presumption of constitutionality is indeed so strong that in order
to sustain it, the court may take into consideration matters of common
knowledge, the history of the times and may assume every state of
facts which can be conceived existing at the time of legislation.
In examining the challenge to the validity of a statute or a
provision in a statute, the judicial scrutiny in exercise of the power
under Article 226 of the Constitution by the High Court is restricted
only to two consideration; whether the legislature i.e. either the
parliament as well as the State legislature has enacted the law by
confining itself to the sphere of its respective jurisdiction and
secondly, on the ground whether on account of implementation of
such legislation which has been validly enacted, has resulted into
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
64/119
violation of fundamental rights or any provision in the Constitution.
In dealing with a challenge to the constitutional validity of a
provision of law, the Court is not concerned with the wisdom or
unwisdom, the justice or injustice as the presumption exist in favour
of the Parliament and the State legislature that it is alive to the needs
of the people and the legislature is the best judge of the needs of the
community and hardship is not relevant in pronouncing on the
constitutional validity. In any case, State of AP vs. P. Laxmi Devi
(2008) 4 SCC 720 , the Apex Court observed thus:-
“19.It is well settled that stamp duty is a tax, and hardship is not relevant
in construing taxing statutes which are to be construed strictly. As often
said, there is no equity in a tax vide CIT v. V.MR.P. Firm Muar [AIR 1965
SC 1216] . If the words used in a taxing statute are clear, one cannot try to
find out the intention and the object of the statute. Hence the High Court
fell in error in trying to go by the supposed object and intendment of the
Stamp Act, and by seeking to find out the hardship which will be caused to
a party by the impugned amendment of 1998.
20.In Partington v. Attorney General [(1869) LR 4 HL 100] Lord Cairns
observed as under:
“If the person sought to be taxed comes within the letter of the law he must be
taxed, however, great the hardship may appear to the judicial mind. On the other
hand if the court seeking to recover the tax cannot bring the subject within the
letter of the law, the subject is free, however, apparently within the spirit of the
law the case might otherwise appear to be.”
The above observation has often been quoted with approval by this Court, and
we endorse it again. In Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC
661] this Court held that if there is hardship in a statute it is for the legislature to
amend the law, but the court cannot be called upon to discard the cardinal rule
of interpretation for mitigating a hardship.”
70 . Equally true it is that it is not permissible for the Court to
interfere with an enactment enacted by a competent legislature only
on the ground that it is susceptible of a possible misuse and the
challenge raised is to the likelihood of the misuse of power.
When the validity of a law is tested, it must take into
consideration the existing circumstances and a mere possibility of its
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
65/119
conspectus in the future, is not a ground for it being declared as
invalid.
23
71 . In The East Indian Company vs. Oditchurn Paul Lord
Campbell declared; it is the duty of all Courts of justice to take care
for the general good of the community, that hard cases do not make
bad law’. As per principle of statutory interpretation Justice G.P
Singh, 13 Edition 2012 ‘it is often found that laws enacted for general
advantage do result in individual hardship; for example laws of
limitation, registration, attestation although enacted for public
benefit, may work injustice in particular cases, but that is hardly any
reason to depart from the normal rule to relief the supposed hardship
or injustice in such cases.’ It is the duty of the Court to give effect to
the intention of the legislature and this duty cannot be avoided on the
ground that it is likely to cause hardship to one class on which the
benefit was conferred but the legislature deemed it appropriate to
deprive the class of this benefit and confer it on another and in such a
case, if the legislature was competent to confer the said benefit, it
definitely cannot be denuded of its power to withdraw the same.
72 . In determining the validity of the law, the Court shall not
restrict itself to the stand adopted by the State and would be free to
satisfy itself whether under any provision of the Constitution the law
cannot be sustained. In determining the validity, the guidance is
provided by the 7 Judge Bench in Patthumma and ors vs. State of
24
Kerala and Ors , when it held thus, ‘the judicial approach should be
dynamic rather than static, pragmatic and not pedantic and elastic
rather than rigid. It must take into consideration the changing trends
23 (1849) 5 MIA 43
24 (1978) 2 SCC 1
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
66/119
of economic thought, the temper of the times and the living
aspirations and feelings of the people. This Court while acting as
sentinel on the quivive to protect fundamental rights guaranteed to
the citizens of the country must try to strike a just balance between
the fundamental rights and broader interest of the society, so that
when such a right clashes with the larger interest of the country, it
must yield to the latter.’
It is obvious that that the legislature is in the best position to
understand and appreciate the needs of the people as enjoined by the
Constitution and since it shoulder the responsibility to bring about
social reforms for the upliftment of the backward and weaker sections
of the society and for the improvement of the lot of poor people. A
constitutional court will therefore, interfere in this process only when
the statute is clearly violative of the rights conferred on the citizen
under part III of the Constitution or when the Act is beyond the
legislative competence of the legislature or such other grounds.
The constitutional proposition enunciated by the US Supreme
Court in ‘ Munn vs. Illinois ,’ “that the Courts do not substitute their
social or economic briefs for the judgment of legislative bodies”
continue to be the guiding factor for the Courts in this Country, while
dealing with the challenge to the constitutional validity, by evolving
the principle that the presumption of constitutionality must colour
judicial construction, and the factors recognized by the courts are
essential to the modus vivendi between the judicial and legislative
branches of the State, both working beneath the canopy of the
Constitution.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
67/119
(IV) Challenge to the statute or statutory provision based on Article 14
of the Constitution
73. While testing the challenge to the Constitutional Validity of the
law enacted, the fundamental nature and importance of the legislative
process deserve due consideration by the Court and where the
legislation is sought to be challenged as being unconstitutional and
violative of Article 14 of the Constitution, the Court shall be
cognizant of the principle relating to the applicability of Article 14 in
relation to invalidation of the legislation or a provision enacted by the
legislature. The two dimensions of Article 14 in its application to
legislation and rendering the legislation invalid, are well settled and it
may be struck down on the ground of; (i) discrimination, based on
impermissible or invalid classification and (ii) arbitrariness, which is
well recognized as a facet of discrimination as the arbitrariness is
antithesis to the provision of equality and such provision of law is
permitted to be tested qua Article 14.
74 . Article 14 of the Constitution of India guarantees equality
before law and equal protection of laws, acting as safeguard against
any arbitrary State action. It prohibits discriminatory, unreasonable
and capricious State action or laws that treat equals unequally.
The doctrine of non-arbitrariness established in E Royappa vs.
25
State of Tamil Nadu , expanded the scope of Article 14, declaring
that any State action that is arbitrary, irrational or capricious violates
Right to Equality. The doctrine of manifest arbitrariness, primarily
used against legislation, propound that if the law enacted is
capricious, irrational or lacks a rational determining principle, then it
is void.
25 (1974) 4 SCC 3.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
68/119
In case of Shayara Bano (supra), the Constitution Bench of the
Apex Court adverted to the development of doctrine of arbitrariness
and its application to State action as a distinct doctrine on which the
State action may be struck down as being violative of Rule of Law
contained in Article 14. The observation of Justice Bhagwati in EP
Royappa (supra) is gainfully relied upon, to conclude that malafide
exercise of power and arbitrariness are different lethal radiations
emanating from the same vice and both are inhibited by Article 14
and 16. The enunciation of law is worded as below:-
"85…. The basic principle which, therefore, informs both Articles 14 and 16 is
equality and inhibition against discrimination. Now, what is the content and
reach of this great equalising principle? It is a founding faith, to use the words of
Bose, J., "a way of life", and it must not be subjected to a narrow pedantic or
lexicographic approach. We cannot countenance any attempt to truncate its all-
embracing scope and meaning, for to do so would be to violate its activist
magnitude. Equality is a dynamic concept with many aspects and dimensions
and it cannot be "cribbed, cabined and confined" within traditional and
doctrinaire limits. From a positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs
to the rule of law in a republic while the other, to the whim and caprice of an
absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal
both according to political logic and constitutional law and is therefore violative
of Article 14, and if it effects any matter relating to public employment, it is also
violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action
and ensure fairness and equality of treatment. They require that State action
must be based on valid relevant principles applicable alike to all similarly
situate and it must not be guided by any extraneous or irrelevant considerations
because that would be denial of equality. Where the operative reason for State
action, as distinguished from motive inducing from the antechamber of the mind,
is not legitimate and relevant but is extraneous and outside the area of
permissible considerations, it would amount to mala fide exercise of power and
that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness
are different lethal radiations emanating from the same vice: in fact the latter
comprehends the former. Both are inhibited by Articles 14 and 16."
75 . By this time, through the authoritative pronouncement from the
Apex Court, it is a well accepted principle, that Article 14 strikes at
arbitrariness in State action and ensures fairness and equality of
treatment. The principle of reasonableness, which legally as well as
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
69/119
philosophically, is an essential element of equality or non-
arbitrariness pervades Article 14 by its brooding omnipresence and
the procedure contemplated under Article 21 is held to mandatorily
answering the test of reasonableness so as to be in conformity with
Article 14.
26
76 . In Ajay Hasia v. Khalid Mujib Sehravardi , the Constitution
bench pertinently held as below:-
“16...Wherever therefore, there is arbitrariness in State action, whether it
be of the legislature or of the executive or of an "authority" under Article
12 , Article 14 immediately springs into action and strikes down such State
action.”
The arbitrariness doctrine contained in Article 14 is therefore
applicable to a legislation, a sub-ordinate legislation and an executive
action.
Though traditional, the concept of Article 14 was made co-
terminus with the doctrine of classification, as the Article favoured
discrimination and the classification, fulfilling the two tests mainly;
(i) it being founded on an intelligible differentia distinguishing the
persons or things that are grouped together from others left out of the
group and (ii) the differentia bearing a rational relation to the object
sought to be achieved and it was held to meet the requirement of
Article 14.
77. However, on passage of time, a new dimension of equality
emerged in Article 14, which embodies a guarantee against
arbitrariness.
No other ground, even including a challenge that a statute
violate basic structure of the Constitution is held to be not
26 (1981) 1 SCC 722
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
70/119
permissible if the statute is within the legislative competence and it
advance the right under Article 21 and 21-A of the Constitution.
A decision by the High Court, recording that the courses
conducted by the Madarsa as prescribed under the U.P Board of
Madarsa Education Act, 2004, included religious instructions and
teachings and hence it was not secular and therefore it violated one of
the basic principle of constitution namely viz. Secularism and the
finding rendered that Madarsa Act violated Article 14, 21 and 21-A of
the Constitution was dealt by the three judges bench in Anjum Kadri
27
and anr vs. Union of India and ors . Declaring that the
Constitutional scheme allows the State to strike a balance between
two objectives; firstly ensuring the standard of excellence of minority
educational institution and secondly preserving the right of the
minority to establish and administer its educational institution, it is
held by the Apex Court that the State must strive to strike a balance
by enacting regulations accompanying the recognition of minority
educational institution.
On examination of the provisions of the Act, and on finding
that the Act furthering substantive equality for the minority
community in the State of UP and secure their interest, it is held that
the Madarsa Act is consistent with the positive obligation of the State
to ensure that students studying in the recognized Madarsa attain a
minimum level of competency which will allow them to effectively
participate in the Society and earn a living.
The provisions of the Act are held to be reasonable as they
subserve the object of recognition i.e. they ensure academic
27 (2025) 5 SCC 53
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
71/119
excellence of students in the recognized Madrasa and since the
provisions of the Act were consistent with the positive obligation of
the State, it is held that the concept of positive secularism was in
consonance with the principle of substantive equality, the ruling of
the High Court invalidating the statute on the ground that it violated
the basic structure did not find favour with the Apex Court and it is
held that the mere fact that the education which is sought to be
regulated include some religious teaching or instructions, did not
automatically push the legislation outside the legislative competence
of the State and it is held that the Act was within the legislative
competence of State legislature and traceable to Schedule VII List 3
Entry 25.
78 . In conclusion, it is held that the High Court had erred in
holding that a statute is bound to be struck down if it is violative of
the ‘Basic Structure’ and it is held that invalidation of a statute on the
ground of violation of secularism has to be traced to the express
provision of the Constitution. By analysis the interplay between
Article 21-A which cast a duty on the State to provide free and
compulsory education to all children of the age of 6 to 14 years, and
which imposes a constitutional obligation to impart elementary and
basic education with Article 30, which guaranteed the right to
establish and administer educational institutions of their choice to the
religious and linguistic minorities, it is held that the constitutional
scheme allows the State to strike a balance between the two
objectives and the education provided under the 2004 Act, can no
way violate Article 21-A as the RTE Act enacted by taking recourse
to the said provision facilitate the fulfilment of fundamental rights
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
72/119
and contain a specific provision making it inapplicable to minority
educational institution and this right of the religious minority
institution is protected under Article 30. Thus, while upholding the
validity of the Madarsa Act, the Apex Court concluded that the Act
was well within the legislative competence of State legislature and it
is consistent with the positive obligation of the State ensuring a
minimum level of competency to the students studying in recognised
Madarsa.
(V) New Dimension of Article 14 - ‘Manifest Arbitrariness’
79 . With passage of time, the newly evolved dimension of Article
14 came to be expanded through various authoritative
pronouncements based on the principles that Article 14 strike at
arbitrariness at State action and it ensure fairness and equality of
treatment. By this time, it is a well embodied principle in Indian Law
that an action that is arbitrary necessarily involve negation of equality
and wherever there is arbitrariness in State action, whether it is the
action of the legislature or of the executive, it is hit by violation of
Article 14.
80 . In Shayara Bano (Supra), the Apex Court has made reference
28
to the discordant note struck in State of A.P. v. McDowell & Co. ,
when a three Judge Bench, repelled the argument based on the
arbitrariness facet of Article 14, and held that the power of Parliament
or for that matter the State legislature is restricted in two ways, and
the law made by the Parliament or the legislature can be struck down
on two grounds alone viz. (1) lack of legislative competence and (2)
violation of any of the fundamental rights guaranteed in Part III of the
28 (1996) 3 SCC 709
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
73/119
Constitution or of any of the Constitutional provision and that there is
no third ground.
The three Judge Bench in McDowell specifically recorded
thus:-
“ The main criticism against the ground of substantive due process being that
it seeks to set up the courts as arbiters of the wisdom of the legislature in
enacting the particular piece of legislation. It is enough for us to say that by
whatever name it is characterised, the ground of invalidation must fall within
the four corners of the two grounds mentioned above. In other words, say, if an
enactment is challenged as violative of Article 14 , it can be struck down only if
it is found that it is violative of the equality clause/equal protection clause
enshrined therein. No enactment can be struck down by just saying that it is
arbitrary or unreasonable. Some or other constitutional infirmity has to be
found before invalidating the Act. An enactment cannot be struck down on the
ground that court thinks it is unjustified. Parliament and the legislatures,
composed as they are of the representatives of the people, are supposed to
know and be aware of the needs of the people and what is good and bad for
them. The court cannot sit in judgment over their wisdom. ”
81 . In Shayara Bano (supra), the Constitution Bench expressed
that in McDowell (supra), two decisions of the Constitution Bench,
the first in Ajay Hasia (supra) and the second in K.R. Laxhmanan v.
State of Tamil Nadu (supra), were not noted apart from the fact that
the reasoning contained as to why arbitrariness cannot be used to
strike down legislation as opposed to both executive action and
subordinate legislation was also not considered.
Recording that as per the Bench in McDowell, substantive due
process is not something accepted either by American courts or our
courts and, therefore, this being a reiteration of substantive due
process being read into Article 14 cannot be applied. However, with
reference to another Constitution Bench in Mohd. Arif v. Supreme
29
Court of India , which followed the decision in Maneka Gandhi
(supra), it was noted that Article 21 is to be read along with other
29 (2014) 9 SCC 737
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
74/119
Fundamental Rights, and so read not only it contemplate the
procedure established by law to be just fair and reasonable but also
the law itself has to be reasonable as Article 14 and 19 have now to
be read into Article 21.
With reference to the decision in Bachan Singh v. State of
30
Punjab , which upheld the constitutional validity of the death
penalty, where it is held that no person shall be deprived of life and
personal liberty except according to fair, just and reasonable
procedure established by valid law, the Constitution Bench held that
‘substantive due process is now to be applied to the fundamental right
of life and liberty’. Noting that the three Judge bench in McDowell
did not notice Maneka Gandhi cited in Mohd. Arif, to show that the
wheel has turned full circle and substantive due process received
recognition as a part of Article 21 which is to be read with Articles
14 and 19.
In paragraph No.82, it is therefore, held as below:
“82. It is, therefore, clear from a reading of even the aforesaid two Constitution
Bench judgments in Mithu case and Sunil Batra case that Article 14 has been
referred to in the context of the constitutional invalidity of statutory law to show
that such statutory law will be struck down if it is found to be ‘arbitrary’.”
82 . Taking note of the absence of the reasoning by the three Judge
Bench in McDowell (supra), the Constitution Bench also found the
reasoning that Courts cannot sit in Judgment over Parliamentary
wisdom to be not the correct approach as it is noted that the law
reports are replete with instance after instance where Parliamentary
wisdom has been successfully set at naught by the Court because
30 (1980) 2 SCC 684
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:34 :::
WP 81-25.doc
75/119
such laws did not pass muster on account of they being
‘unreasonable’.
83 . In the wake of in depth deliberation of the concept of
arbitrariness and unreasonableness being considered as facet of
Article 14, a reference is made to the decision of the Constitution
31
Bench in case of Subramanian Swamy v. CBI , as to whether it is a
ground available to invalidate the legislation.
The observation in the decision of Subramanian Swamy
(supra) to the following effect is gainfully reproduced:
“49. Where there is challenge to the constitutional validity of a law enacted by
the legislature, the Court must keep in view that there is always a presumption of
constitutionality of an enactment, and a clear transgression of constitutional
principles must be shown. The fundamental nature and importance of the
legislative process needs to be recognised by the Court and due regard and
deference must be accorded to the legislative process. Where the legislation is
sought to be challenged as being unconstitutional and violative of Article 14 of
the Constitution, the Court must remind itself to the principles relating to the
applicability of Article 14 in relation to invalidation of legislation. The two
dimensions of Article 14 in its application to legislation and rendering
legislation invalid are now well recognised and these are: (i) discrimination,
based on an impermissible or invalid classification, and (ii) excessive delegation
of powers; conferment of uncanalised and unguided powers on the executive,
whether in the form of delegated legislation or by way of conferment of authority
to pass administrative orders—if such conferment is without any guidance,
control or checks, it is violative of Article 14 of the Constitution. The Court also
needs to be mindful that a legislation does not become unconstitutional merely
because there is another view or because another method may be considered to
be as good or even more effective, like any issue of social, or even economic
policy. It is well settled that the courts do not substitute their views on what the
policy is.”
84 . It is on in-depth consideration of the earlier rulings, revolving
around Article 14 held that the test of manifest arbitrariness would
apply to invalidate the legislation as well as subordinate legislation
under Article 14, manifest arbitrariness being described in the
following words:-
‘101...Manifest arbitrariness, therefore, must be something done by the
31 (2005) 2 SCC 317
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
76/119
legislature capriciously, irrationally and/or without adequate determining
principle. Also, when something is done which is excessive and
disproportionate, such legislation would be manifestly arbitrary. We are,
therefore, of the view that arbitrariness in the sense of manifest
arbitrariness as pointed out by us above would apply to negate legislation
as well under Article 14.’
85 . It is in light of the aforesaid reasoning and by applying the test
of ‘manifest arbitrariness’, the form of Triple Talaq, instant and
irrevocable was tested and the majority view expressed this form of
Talaq is manifestly arbitrary, in the sense that the marital tie can be
broken capriciously and whimsically by a Muslim man without any
attempt of reconciliation to save it. Triple Talaq is therefore held
violative of the fundamental right contained in the Article 14 of the
Constitution of India, and the 1937 Act, insofar as it seeks to
recognize and enforce Triple Talaq, it was struck down being void to
the extent that it recognizes and enforces Triple Talaq.
32
86. In Re : Section 6A of the Citizenship Act, 1995 , the
Constitution Bench after the decision in Shayara Bano , was
confronted with a challenge to the constitutional validity of Section
6A of the Citizenship Act, 1985, the provision being incorporated to
establish a framework and to delineate criteria of granting Indian
citizenship to migrants who enter Assam before 25/03/1971. The
provision created categories of conferring of citizenship to
immigrants who enter Assam by classifying in; i) deemed citizenship
to immigrants who entered prior to 01/01/1966 and ii) the process of
registration for immigrants who entered between 01/01/1966 and
25/03/1971. No protection was granted to those who entered in
Assam after 25/03/1971, rendering their presence in India illegal and
32 (2024) 16 SCC 105
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
77/119
liable for deportation under the existing legislation.
A challenge being raised on the backdrop of Article 14 and the
classification contemplated therein, it was argued that the exclusive
application of Section 6A to Assam violated Article 14 since Article
14 require legislature to treat equals equally and though it allows
differential treatment, if the characteristics of classes differ , but
treating unequal entities alike and subjecting them to same laws
would potentially lead to greater injustice. It was urged on behalf of
the Petitioner that the classification should not be based on arbitrary
criteria and must instead be based on logic, which distinguishes
individual with similar characteristics from the persons who do not
share the equals i.e. distinguishing the equals from the persons who
do not share those characteristics – the unequals. The test laid down
so as to sustain the classification as reasonable was pressed into
service which necessarily require consideration of all relevant
similarities and disregard insubstantial and microscopic differences.
It is in the background of submissions, while laying down the
the yardstick regarding the classification while gauging its
reasonableness, the Apex Court noted thus :-
“179. Second, when gauging the reasonableness of classification, the
Court must adopt a pragmatic view and refrain from deeming a
classification unconstitutional solely because it is marginally under-
inclusive. In adjudicating the validity of a statute, the concept of under-
inclusiveness arises when a classification within the law fails to encompass
all individuals similarly situated with respect to the law’s intended purpose.
The approach of Indian courts towards under-inclusive legislation
generally exhibits tolerance on the premise that the legislature is “free to
recognize degrees of harm” and is allowed to “hit evil where it is most
felt”. Moreover, this Court has also justified some under-inclusive
classifications on the grounds of administrative convenience and legislative
experimentation.”
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
78/119
87. While determining the fourfold issue that fell for consideration,
one of the issue being whether Section 6A is so ‘manifestly arbitrary’
that it offends Part III of the Constitution, the Constitution Bench
applied the test of ‘manifest arbitrariness’ crystalised in Shayara
Bano (supra) and set out the facets of the test of ‘manifest
arbitrariness’ in the following words :-
“214. The term 'irrationality" refers to the lack of reason or logic. While
highlighting the need for the presence of clear reason or logic, this Court in
Cellular Operators Assn. of India v. TRAI, determined that the legislation,
statute or provision being challenged must be supported by a rationale. The
rationale demonstrates the application of intelligent care and observation in
the enactment of such laws or provisions. To this end, it was held that:
48. (...) We cannot forget that when viewed from the angle of manifest
arbitrariness or reasonable restriction, sounding in Article 14 and Article
19(1)(9) respectively, the Regulation must, in order to pass constitutional
muster, be as a result of intelligent care and deliberation, that is, the choice
of a course which reason dictates. Any arbitrary invasion of a fundamental
right cannot be said to contain this quality. (...)"
[Emphasis applied]
216. Still further, while the test of manifest arbitrariness requires the presence of
logicality, such reasoning does not have to be stated explicitly and can be discernable
from the facts and circumstances, However, it should be noted that the converse may not
hold. In other words, even if the reason or rationale behind the impugned provision is
expressly stated, it does not automatically guarantee non-arbitrariness. Such reason
also needs to align with constitutional morality and public interest, and must bear a
nexus with the object of the statute. The aspect of irrationality, as found in the test for
'manifest arbitrariness, thus, does not solely imply the absence of reason but also
requires alignment with constitutional morality. Hence, the legitimacy of the reason or
logic behind the impugned legislation should be viewed from the lens of constitutional
ideals. This was so observed by this Court in Joseph Shine (supra), wherein it was
clarified that irrationality does not merely denote the absence of reason but also
requires that such reasoning be in harmony with constitutionalism.
217. We may hasten to add that, the legitimacy of the reason behind the legislation
that has been impugned must be viewed from the lens of public interest also. This
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
79/119
Court, in Hindustan Construction Co. Ltd. v. Union of India, struck down Section
87 of the Arbitration and Conciliation Act, 1996, on the ground of manifest
arbitrariness by observing that it was against public interest. This was also
observed in Manish Kumar v. Union of India (supra), that the golden thread
running through this ground, making up the doctrine of manifest arbitrariness, is
the absence of public interest.”
88 . The Constitution Bench also determined the extent of review
under ‘manifest arbitrariness’ and observed that while applying the
test, the use of the word ‘manifest’ signify that the arbitrariness
should be palpable and visible on the face of it and while examining
whether the provision is manifestly arbitrary the Court should
practice judicial restraint and must not substitute their view against
that of law makers as the Courts cannot question the wisdom of the
Policy, but is only expected to test its legality.
If a particular norm set out by the legislature is backed by a
Policy decision, the Court must refrain from excessively questioning
the specific standard and shall exercise power of judicial review
cautiously.
Holding that the cut off date was not set arbitrarily but was
based on proper application of mind, in the historic backdrop it was
concluded that the same was backed by a well considered rationale
and since the determination of cut off date fall within the ambit of
the policy makers, where the Court would be reluctant to indulge in
such fixation, unless the date has vitiated the arbitrary consideration,
it was held not to offend Article 14 and no interference was
warranted.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
80/119
(VI) Applicability of the Principle of ‘Arbitrariness’ contemplated
under Article 14 - in testing the amendments to the Act of 2012
89 . The challenge in the petitions to the amended provisions is
premised on the facet of Article 14 and Mr.Frais has contended that
the Apex Court in Shayara Bano (supra) , has evolved one additional
ground of testing the validity of a statute being that of manifest
arbitrariness. The amending Acts which are alleged to have curtailed
the ‘vested rights’ of those who prior to the amendment, received
precedence in the order of succession over the ‘surviving spouse’ are
challenged on the ground of ‘manifest arbitrariness’, being
capricious, unreasonable and we are called upon to decide the
validity of the amending Act by applying the parameters set out by
the Hon’ble Apex Court in Shayara Bano (supra), to be followed by
another Constitution Bench In Re : Section 6A of the Citizenship Act,
1995.
90 . The aforesaid observation of the Apex Court is strongly relied
upon by Mr. Frias, who submit that the statutory provision has been
struck down on the ground of it being manifestly arbitrary and we
therefore examine the ground of the amending Act, changing the
sequence of legal succession on the ground of arbitrariness.
91 . When the law is challenged on ground that it is violative of
Article 14, it necessitate the Court to inquire whether it is capricious,
irrational, disproportionate excessive and finally without any
determining principle. The golden thread which runs through the
grounds making up the doctrine of manifest arbitrariness, consist of
total absence of public interest of which the sovereign legislature as
the supreme law giver is the undoubted custodian and it is on these
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
81/119
parameters laid down by the Apex Court in Manish Kumar (supra),
the learned counsel Mr.Frias expect us to consider the challenge.
92. The test of ‘Manifest arbitrariness’ crystalised in Shayara
Bano (supra) dealing with the challenge to the practice of triple
Talaq as recognized in the Muslim Personal Law (Shariyat
Application Act, 1957), the Apex Court overruled its previous
decision in Mcdowell where it is held that an enactment cannot be
strucked down on the ground of it being arbitrary or unreasonable
and it is necessary to establish some constitutional infirmity before
invalidating the Act.
The test of ‘manifest arbitrariness’ set out in Shayara Bano
(supra) necessarily contemplate something done by legislature
capriciously, irrationally and/or without adequate determining
principle. Similarly something which is done which is excessive and
disproportionate, it would be manifestly arbitrary.
93. An action is Arbitrary; if….
“1. Depending on individual direction; specific, determined by a
Judge rather than by fixed rules, procedures, or law. 2. (of a judicial
decision) founded on prejudice or preference rather than on reason of
fact. This type of decision is often termed arbitrary and capricious."
[Black's Law Dictionary as cited in East Coast Railway v Mahadev
Appa Rao, (2010) 7 SCC 678, para 19].
It is also ‘arbitrary’ if;
2. Based upon one's will, and not upon any course of reason and
exercise of judgment; bound by no law; capricious; exercised
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
82/119
according to one's will or caprice and therefore conveying a notion or
a tendency to abuse possession of power; fixed or done capriciously
or at pleasure, without adequate determining principle, non-rational,
or not done or acting according to reason or judgment; not based
upon actually but beyond a reasonable extent; not founded in the
nature of things; not governed by any fixed rules or standard; also, in
a somewhat different sense, absolute in powers despotic, or
tyrannical; harsh and unforbearing.
When applied to acts, 'arbitrary,' has been held to connote a
disregard of evidence or of the proper weight thereof; to express an
idea opposed to administrative, executive, judicial or legislative
discretion; and to imply at least an element of bad faith, and has been
compared with 'wilful'.
94. As per Advanced Law lexicon, P. Ramanatha Aiyar, Seventh
Edition, Volume 1, an obvious test to apply to ascertain whether any
act or option is arbitrary or not, is ultimately to be answered on the
facts in circumstances of a given case. An obvious test to apply is to
see whether there is any discernible principle emerging from the
impugned act and if so, does it satisfy the test of unreasonableness. In
order to be described as ‘arbitrary’, it must be shown that it is not
reasonable and manifestly arbitrary.
When the decision making process and the decision, both are
based on irrelevant facts and they ignore relevant consideration, such
action shall be termed as ‘arbitrary’. An action is arbitrary and
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
83/119
capricious where a person, in particular, a person in authority does
any action based on individual discretion, by ignoring prescribed
rules, procedure or law, and the action or decision is founded on
prejudice or preference rather than the reason or fact. To be termed as
arbitrary and capricious, the action must be illogical, whimsical,
something without reasonable explanation.
95. On examining the intention of the state legislature in enacting
the amending Acts 2022 and 2023, we do not find any arbitrariness in
resetting the order of succession, as we find that the surviving spouse
was found to be more suited for taking the share of the deceased
estate leaver by immediately succeeding the children. The right of
succession is vested in the heirs by a statutory provision and while
conferring the said right, when the legislature decided a particular
sequence to be followed, while conferring the right to succeed, the
very same legislature is entitled to change the order of succession as
the legislature was of the view that the existing order deserve
rectification.
Very peculiar to the State of Goa, because of the communion
of assets unless and until the parties have entered into an ante-nuptial
agreement, where the Default regime, is general communion of
assets, the present and future asset are shared equally on the contract
of marriage being entered into. The surviving spouse as a moiety
holder takes 50% of the share in the estate, not because of his/her
right to succession, but it is on account of communion of assets, in
accordance with the matrimonial regime in which the parties are
married. However, when it comes to the succession of the estate of
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
84/119
the descendant/the children/the grandchildren deserve priority over
anyone else. However, the surviving spouse, according to the
legislature, must take the whole share in the estate of the deceased
husband/wife, if there are no descendants. However, if there are no
descendants and even there is no spouse than obviously the
ascendants that is the parents, grandparents are entitled to succeed to
the property of estate leaver.
The surviving spouse definitely occupies a position superior
than any other relationship apart from the children and the legislature
deemed it appropriate to introduce the spouse in the order of
immediately succession next to the children/ descendants.
96 . When we compared the aforesaid line of succession with the
succession under the Hindu Succession Act of 1956, we find the
legislature perfectly justified in resetting the order of succession.
Under the Hindu Succession Act, 1956 which govern the
succession of a Hindu, including Buddhist, Jain, or Sikh by religion
and any other person, who is not a Muslim, Christian, Parsi and Jew,
the ‘Heir’ is a person, male or female entitled to succeed to the
property of an intestate.
Section 8 of the said Act has prescribed the rule of succession
in case of Males and it reads thus:-
“ 8. General rules of succession in the case of males. ―The property of a
male Hindu dying intestate shall devolve according to the provisions of this
Chapter:―
(a) firstly, upon the heirs, being the relatives specified in class I of the
Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the
relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
85/119
of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.”
97 . Amongst the heirs specified in Schedule, Section 9 prescribe
that those in Schedule-I shall take simultaneously and to the
exclusion of all other heirs; those in the first entry in class II shall be
preferred to those in second entry; those in the second entry shall be
preferred to those in the third entry; and so on in succession.
Schedule-I appended to the Act, includes the heirs in class-I
and class-II.
Class-I heirs include Son; daughter; widow; mother; son of a
pre-deceased son; daughter of a pre-deceased son; son of a pre-
deceased daughter; daughter of a pre-deceased daughter; widow of a
pre-deceased son; son of a pre-deceased son. Class-II heirs are found
to be placed in the following manner:-
“I. Father.
II. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4)
sister.
III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s
daughter’s son, (4) daughter’s daughter’s daughter.
IV. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s
daughter.
V. Father’s father; father’s mother.
VI. Father’s widow; brother’s widow.
VII. Father’s brother; father’s sister.
VIII. Mother’s father; mother’s mother.
IX. Mother’s brother; mother’s sister.
Explanation.―In this Schedule, references to a brother or sister do not
include references to a brother or sister by uterine blood.”
98 . As per Section 10 of the Hindu Succession Act, the property of
a intestate shall be divided among the heirs in class-I of the schedule
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
86/119
in the following manner:-
“Rule 1.―The intestate’s widow, or if there are more widows than one, all the widows
together, shall take one share.
Rule 2.―The surviving sons and daughters and the mother of the intestate shall each
take one share.
Rule 3.―The heirs in the branch of each pre-deceased son or each pre-deceased
daughter of the intestate shall take between them one share.
Rule 4.―The distribution of the share referred to in Rule 3”
However as fare as the heirs in class-II are concerned, the
property shall be divided between the heirs in a way that they share
equally.
99 . Section 15 govern the succession of the property of a female
Hindu, and her property shall devolve in the following sequence;
(a) firstly, upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.”
100. Nothwithstanding the above, subsection (2) of Section 15 has
carved out a distinction between the property inherited by a female
Hindu from her father when it shall devolve upon the heirs of her
father in absence of any son or daughter of the deceased but when the
property is inherited by her from her husband or her father in law
then it shall devolve upon the heirs of the husband.
The order of succession and the manner of distribution among
the heirs of a female Hindu is prescribed in Section 16 and the
distribution of the intestate property among the heirs shall be in the
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
87/119
following manner:-
“Rule 1.―Among the heirs specified in sub-section (1) of section 15, those in
one entry shall be preferred to those in any succeeding entry, and those
included in the same entry shall take simultaneously.
Rule 2.―If any son or daughter of the intestate had pre-deceased the
intestate leaving his or her own children alive at the time of the intestate’s
death, the children of such son or daughter shall take between them the share
which such son or daughter would have taken if living at the intestate’s death.
Rule 3.―The devolution of the property of the intestate on the heirs referred
to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) of
section 15 shall be in the same order and according to the same rules as
would have applied if the property had been the father’s or the mother’s or
the husband’s as the case may be, and such person had died intestate in
respect thereof immediately after the intestate’s death.”
101 . The comparison of the right of a surviving spouse from the
Hindu Succession Act, would simply reflect that the widow along
with the mother, finds place in class-I, whereas the father is placed in
class-II. While distributing the property amongst the heirs; the
widow, the surviving sons and daughter, the widow takes one share,
surviving sons and daughters and mother of the intestate are entitled
for one share and the heirs in the branch of each predeceased son or
each predeceased daughter shall take between themselves one share.
When it comes to the distribution of the estate of a female
Hindu on her demise, amongst the heirs, the sons and daughters and
the husband take preference over all other heirs including the heirs of
the husband, the father and the mother etc and the sons and daughter
and husband inherits simultaneously.
102 . In the order of succession prescribed under the Hindu
Succession Act, 1956, the husband/the widow stands along with the
children and both of them stand on a higher position than the other
heirs.
Peculiar in Goa, which is governed by communion of assets by
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
88/119
default unless there exists an ante-nuptial agreement, where the
spouses had agreed for absolute separation of assets or simple
separation of acquired property or another situation of total regime,
the wife as a moiety sharer, on account of her marriage become the
equal shareholder in the property of the husband, during their
lifetime, both act as joint owner and this communion survives till the
parties are separated by annulment /decree of divorce.
Therefore, the contention advanced on behalf of the Petitioners
while raising a challenge to the up-gradation of surviving spouse in
the order of succession under Section 52, based on a presumption that
the surviving spouse has otherwise on account of he / she being a
moiety holder is entitled to 50% of the estate and therefore, in
absence of the children/ the descendants being available to succeed,
the surviving spouse will take the balance 50% and this will keep the
ascendants i.e. the parents, grandparents out of the order of
succession failed to impress us.
As a spouse, who had shared a marital tie with the estate
leaver, definitely deserve precedence over any other relationship of
the estate leaver except the children i.e. the descendants and if the
descendants are surviving, then the surviving spouse shall take a
backseat.
If with this intention, the State Legislature has deemed it
appropriate to rectify the order of legal succession, we do not find it
to suffer from ‘manifest arbitrariness’; we do not find it to be
irrational or that it lack rational determining principle.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
89/119
103. We have also perused the scheme contemplated under the
Indian Succession Act 1925, which govern the intestate and
testamentary succession of the deceased who is not Hindu,
Mohammedan, Buddhist, Sikh or Jain and even it has conferred the
right on the widow, in priority over the kindred or consanguinity. As
per Section 32, the property of an intestate devolves upon the wife or
husband, or upon those who are the kindred of the deceased, in the
order and according to the Rules set out in Chapter II. Section 33 is
the provision prescribed in a manner in which the property would
devolve when the intestate has left the widow and the said provision
reads thus:-
“33. Where intestate has left widow and lineal descendants, or widow
and kindred only, or widow and no kindred . -Where the intestate has
left a widow--
(a) if he has also left any lineal descendants, one-third of his property
shall belong to his widow, and the remaining two-thirds shall go to his
lineal descendants, according to the rules hereinafter contained;
(b) [save as provided by section 33A], if he has left no lineal
descendant, but has left persons who are of kindred to him, one-half of
his property shall belong to his widow, and the other half shall go to
those who are kindred to him, in the order and according to the rules
hereinafter contained;
(c) if he has left none who are of kindred to him, the whole of his
property shall belong to his widow.”
104 . Section 33-A is a special provision, where the intestate has left
the widow but no lineal descendants and if the net value of the
property do not exceed to Rs. 5000/-, the whole property shall belong
to the widow but where the property exceeds to the sum of Rs. 5000/-
she shall be entitled for the whole amount and shall have a charge
upon the whole of such property in the sum of Rs. 5000/- with
interest thereon from the date of the death of intestate.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
90/119
The provision for the widow in the said subsection is in
addition and without prejudice to her interest and share in the residue
of the estate of such intestate remaining after payment of Rs. 5000/-
and such residue shall be distributed in accordance with the provision
of Section 33 as if it was the whole of such intestate property.
When there is no widow left by the intestate, the property shall
then go to lineal descendants or to those who are of kindred to him
not being the lineal descendants and if he has left none, who are
kindred to him, it shall go to the government.
The widower, i.e. husband surviving his wife enjoy the same
rights in respect of her property if she died intestate, as the widow has
in respect of her husband’s property if he die intestate.
Thus, even under the Indian Succession Act, the
widow/widower take precedence over the kindred i.e. the relatives of
the deceased descended from the same stock of common ancestor.
The widow and the lineal descendants take their respective share,
where the intestate is left behind by widow and lineal descendants.
But if there are no lineal descendants but there are kindred then one
half of the property belongs to the Widow and other half go to the
kindred but if there is none then the whole of the property shall
belong to the widow.
105. Applying the test of arbitrariness/ manifest arbitrariness,
evolved by the Apex Court, a statute to be declared to be so must
exhibit exercise of discretion in an arbitrary manner, not based upon
actually but beyond the reasonable extent, in a tyrannical manner. A
law or a provision shall be declared arbitrary if there is no discernible
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
91/119
principle emerging therefrom and if it fail to satisfy the test of
reasonableness. In our view, by comparing the provisions relating to
succession under the special statutes like the Indian Succession Act,
or the Hindu Succession Act, we have noted that the surviving spouse
- widow/widower have been assigned a superior position as
compared to the other heirs and if the State Legislature deemed it
necessary to rectify the order of succession which was prevailing in
State of Goa through the Portuguese Civil Code, which found its way
in the Goa Succession Act, 2012, we do not find that the action is
‘arbitrary’ or ‘manifestly arbitrary’ for the reasoning stated by us
above.
(VII) Retrospective effect of the Amending Act whether result in
deprivation of ‘Vested’ and ‘Crystallised’ Rights.
106 . Another common submission canvassed is, that on account of
(Amendment) Act, 2023, declaring that the Amending Act (2022) has
come into effect on 21/12/2016, has given effect to Section 52
retrospectively and the argument advanced is the rights which are
already vested in accordance with the order of succession as per
Section 52, are denuded as the surviving spouse take precedence over
the ascendants, thus depriving them of their right of succession which
is already vested. It is urged on behalf of the Petitioners that the
amendment to Section 52 has been given effect from 21/12/2016 i.e.
from a date antecedent.
The submission canvassed to raise a challenge to the amending
Act is that by virtue of Section 13 of the Act of 2012, the moment the
estate leaver dies, the ownership and possession of inheritance is
transmitted to the heirs whether testamentary or intestate and it vest
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
92/119
in them, the said provision correspond to Article 2011 in the
Portuguese Civil Code.
In terms of the aforesaid provision, the transmission of
ownership and possession is not contingent on the acceptance of
inheritance and this create an indefeasible right in the heirs/the
successor. Based on the aforesaid provision, it is canvassed before us
that the intention of the legislature is very clear when it prescribed
that the ownership and possession of the inheritance of the deceased
estate leaver shall vests in the heir at the moment of his death. Upon
inheritance being transmitted to the legal heirs they become the
owners of the property of estate leaver but in case, where the heir
desire to enjoy the property to the exclusion of another, in that case,
he/she shall definitely seek a partition and have the shares segregated
to claim exclusivity qua, the other heirs.
Since, as per Section 13, the right that is transmitted to the
legal heirs is not contingent but it vests in the heir by operation of
law, it is urged before us that the right is ‘vested’ and therefore,
giving retrospective effect to Section 52 is unjust, arbitrary, and
hence unconstitutional as it has the effect of taking away vested
rights of ownership and possession, which have already accrued in
favour of the persons to qualify in the line of succession as per
unamended Section 52.
107 . It is a fundamental rule of law that no statute shall be construed
to have retrospective operation unless such construction appears very
clearly in terms of the Act or arises by necessary or distinct
implication.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
93/119
33
In the case of Govind Das Vs. Income Tax Officer , while
holding Section 171(6) of the Income Tax Act to be prospective and
inapplicable for any assessment year prior to 1/4/1962, the date on
which the Income Tax Act came into force; the observations of the
Apex Court deserve reproduction :-
‘11. Now it is a well settled rule of interpretation hallowed by time and
sanctified by judicial decisions that, unless the terms of a statute expressly
so provide or necessarily require it, retrospective operation should not be
given to a statute so as to take away or impair an existing right or create a
new obligation or impose a new liability otherwise than as regards matters
of procedure. The general rule as stated by Halsbury in Vol. 36 of the
Laws of England (3rd Edn.) and reiterated in several decisions of this
Court as well as English courts is that “all statutes other than those which
are merely declaratory or which relate only to matters of procedure or of
evidence are prima facie prospective and retrospective operation should
not be given to a statute so as to affect, alter or destroy an existing right or
create a new liability or obligation unless that effect cannot be avoided
without doing violence to the language of the enactment. If the enactment
is expressed in language which is fairly capable of either interpretation, it
ought to be construed as prospective only.”
108. It is the cardinal principle of construction that every statute is
prima facie prospective unless it is expressly or by necessary
implication made to have a retrospective operation. The rule in
general is applicable where the object of the statute is to affect vested
rights or to impose new burden or to impair existing obligations.
Unless the words in the statute sufficiently display the intention of
the legislature to affect existing rights, it is deemed to be prospective
only, “ nova constitutio futuris formam imponere debet non
praeteritis ” - a new law ought to regulate what is to follow, not the
past’.
It is not necessary that an express provision shall be made to
make a statute retrospective and the presumption against
retrospectivity may be rebutted by necessary implication, especially
33 (1976)1 SCC 906
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
94/119
in a case where the new law is made to cure an acknowledged evil for
the benefit of the community as a whole.
It is well settled that if a statute is curative or merely
declaratory of the previous law retrospective operation is generally
intended. An amending Act may be purely declaratory to clear a
meaning of a provision of the principal Act which was already
implicit. A clarificatory amendment of this nature will have
retrospective effect.
Though retrospectivity is not to be presumed and rather there is
a presumption against retrospectivity, according to Craies (Statute
Law, 7th Edn), it is open for the legislature to enact laws having
retrospective operation. This can be achieved by express enactment
or by necessary implication from the language employed.
In the absence of a retrospective operation being expressly
given, the Courts may be called upon to construe the provisions and
answer the question whether the legislature had sufficiently expressed
that intention giving a statute retrospectivity. Four factors are
suggested as relevant: (i) General scope and purview of the statute;
(ii) The remedy sought to be applied; (iii) The former state of the law;
and (iv) What it was the legislature contemplated.
109 . The term ‘Vested Rights’ has a definite connotation and as per
Black’s law dictionary, it is defined as ‘A right that so completely and
definitely belongs to a person that it cannot be impaired or taken
away without the person’s consent’.
Before us, the claim of the Petitioners is based on succession
and it is the Statute, i.e. the Goa Succession Act of 2012, which has
determined the order of succession amongst the heirs of the estate
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
95/119
leaver, as on account of his demise, his estate/ property is available
for inheritance. Various authoritative pronouncements are cited
before us in support of the proposition that, the law must satisfy the
requirements of the Constitution by taking into account the accrued
or acquired rights of the parties. It being an well accepted position
that a legislature cannot legislate today with reference to a situation
that existed 20 years ago and in ignorance of the mark of events and
the rights that are accrued in the course of these years, as doing so
would be utmost arbitrary, and unreasonable.
In case of State of Gujarat & Anr. vs. Raman Lal Keshav Lal
Soni & ors (supra), the Constitution Bench was confronted with the
question whether the status of ex-registeral employees who had been
allocated to the Panchayat service under the Gujarat Panchayat Act,
1961, as government servants, could be extinguished by making
retrospective amendment in the Act in 1978. Striking down the
amendment on the ground that it offended Article 311 and 14 of the
Constitution, the Court observed thus:-
“52…..The legislature is undoubtedly competent to legislate with
retrospective effect to take away or impair any vested right acquired under
existing laws but since the laws are made under a written Constitution, and
have to conform to the dos and don'ts of the Constitution, neither
prospective nor retrospective laws can be made so as to contravene
fundamental rights.”
110 . In case of Chairman, Railway Board (supra) it is noted that
the expression, ‘vested rights’ or ‘accrued rights’ have been used
while striking down the provisions, which were given retrospective
operation so as to have an adverse effect on the matter of promotions,
seniority, substantive appointment etc., of the employees.
It is elucidated that the said expressions have been used in a
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
96/119
context of a right flowing under the relevant Rule, which was sought
to be altered with effect from an anterior date and thereby taking
away the benefits available under the Rule in force at that time. An
amendment having retrospective operation has the effect of taking
away a benefit which is already made available and this would
violate the right guaranteed under Article 14 and 16 of the
Constitution.
111 . The obvious basis of the principle against retrospectivity is the
principle of ‘fairness’, which necessarily must form the basis of every
Legal Rule. One established principle in interpreting a legislation or a
provision in it is well settled; unless a contrary intention appears, a
legislation is presumed not to be intended to have a retrospective
34
operation. In CIT vs. Vatika Township (P) Ltd , the Constitution
Bench while setting out the general principles concerning
retrospectivity worded its formulation on the point as below:-
“ 28. Of the various rules guiding how a legislation has to be interpreted,
one established rule is that unless a contrary intention appears, a
legislation is presumed not to be intended to have a retrospective operation.
The idea behind the rule is that a current law should govern current
activities. Law passed today cannot apply to the events of the past. If we do
something today, we do it keeping in view the law of today and in force and
not tomorrow's backward adjustment of it. Our belief in the nature of the
law is founded on the bedrock that every human being is entitled to arrange
his affairs by relying on the existing law and should not find that his plans
have been retrospectively upset. This principle of law is known as lex
prospicit non respicit : law looks forward not backward. As was observed in
Phillips v. Eyre [(1870) LR 6 QB 1] , a retrospective legislation is contrary
to the general principle that legislation by which the conduct of mankind is
to be regulated when introduced for the first time to deal with future acts
ought not to change the character of past transactions carried on upon the
faith of the then existing law.”
34 (2015) 1 SCC 1
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
97/119
112 . However, what is most relevant is the observation of the larger
bench of the Apex Court in para 30, which reads as below:
“30. We would also like to point out, for the sake of completeness, that where a
benefit is conferred by a legislation, the rule against a retrospective
construction is different. If a legislation confers a benefit on some persons but
without inflicting a corresponding detriment on some other person or on the
public generally, and where to confer such benefit appears to have been the
legislators' object, then the presumption would be that such a legislation, giving
it a purposive construction, would warrant it to be given a retrospective effect.
This exactly is the justification to treat procedural provisions as retrospective.
In Govt. of India v. Indian Tobacco Assn. [(2005) 7 SCC 396] , the doctrine of
fairness was held to be relevant factor to construe a statute conferring a benefit,
in the context of it to be given a retrospective operation. The same doctrine of
fairness, to hold that a statute was retrospective in nature, was applied in Vijay
v. State of Maharashtra [(2006) 6 SCC 289] . It was held that where a law is
enacted for the benefit of community as a whole, even in the absence of a
provision the statute may be held to be retrospective in nature. However, we are
(sic not) confronted with any such situation here.”
113 . A statute or provision of law enacted for the benefit of a
community as a whole, thus may be held to be retrospective in nature.
In certain areas like the legislation in relation to fiscal matters, the
legislations creating a penal effect, stand on a different footing, and in
the words of Lord Wilberforce in Inland Revenue Commissioners vs
35
Joiner , the principle to be applied is loud and clear, “that in a
civilized society which acknowledges the Rule of Law, individual
members of that society are entitled to know when they embark upon
a course of conduct what the legal consequences of their doing so
will be, so they may regulate their conduct accordingly”
. In accordance with the general principle of the retrospectivity,
114
even in a case where it might be thought unfair to legislate with
retrospective effect on a fiscal matter, it is open for the legislature to
do so, that effect will be given to their intention by the Courts only if
it be indicated in a manner which leads no room for doubt. The legal
impediments in enacting a statute and giving effect to it with a
35 [1975] 1 WLR 1701
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
98/119
retrospective date in presuming that the provision of a statute has
come into effect prior to its enactment, the relevant test is whether it
destroy or impair vested rights.
Retrospectivity or retroactivity is understood to mean laws
which destroy or impair vested rights. Retro active laws apply where
the status or character of a thing or situation arose prior to passage of
the law but merely because a law operates on certain circumstances,
which are antecedent to its passing, does not mean that it is
retrospective.
Retroactive, the term which comes from latin roots meaning
‘drive or turn back’ describe laws or actions that take effect from a
date in the past, impacting conditions that already occurred and it
indicate a retrospective, backdated act. Retrospectivity refer to a
completed act, whereas retroactivity is a law applicable to an act or
transaction i.e. still underway and is in the process of completion.
Retroactive laws apply, where the status or character of a thing or
situation arose prior to the passage of law but merely because law
operates on certain circumstances which are antecedents to its
passing does not necessarily mean that it is retrospective.
115 . Maxwell on Interpretation of Statutes (Twelfth Edition) has
para-phrased the Rule regarding retrospectivity by quoting the
36
passage from the judgment of R.S. Wright J. in Rey Athlumney and
it is so reflected below:-
“One of the most well-known statements of the rule regarding
retrospectivity is contained in this passage from the judgment of R. S.
Wright J. in Re Athlumney ‘Perhaps no rule of construction is more firmly
established than this-that a retrospective operation is not to be given to a
statute so as to impair an existing right or obligation, otherwise than as
36 [1898] 2 Q.B. 551.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
99/119
regards matter of procedure, unless that effect cannot be avoided without
doing violence to the language of the enactment. If the enactment is
expressed in language which is fairly capable of either interpretation, it
ought to be construed as prospective only.’ The rule has, in fact, two
aspects, for it ‘involves another and subordinate rule, to the effect that a
statute is not to be construed so as to have a greater retrospective operation
than its language renders necessary.’
If, however, the language or the dominant intention of the enactment so
demands, the Act must be construed so as to have a retrospective operation,
for ‘the rule against the retrospective effect of statutes is not a rigid or
inflexible rule but is one to be applied always in the light of the language of
the statute and the subject-matter with which the statute is dealing.’ Those
situations in which Acts will be construed so as to have a retrospective
operation will be discussed later in this chapter.
Before the presumption against retrospectivity is applied, a court must be
satisfied that the statute is in fact retrospective. In the words of Craies on
Statute Law, a statute is retrospective ‘which takes away or impairs any
vested right acquired under existing laws, or creates a new obligation, or
imposes a new duty, or attaches a new disability in respect to transactions
or considerations already past.’ Other statutes, though they may relate to
acts or events which are past, are not retrospective in the sense in which the
word is used for the purpose of the rule under consideration. The following
cases illustrate this point.”
116 . When the substantive law is altered during the pendency of an
action the rights of the parties are decided according to the law, as it
existed when the action began, unless a new statute shows a clear
intention to vary such right. If a necessary intendment of a statute is
to effect the rights of parties to pending actions, the Court must give
effect to the intention of the legislature and apply the law as it stands
at the time of judgment. Maxwell has further elaborated the principle
in the following words:-
“The effect of a change in the law between a decision at first instance and the
hearing of an appeal from that decision was discussed by the House of Lords
in Att.-Gen. V. Vernazza. Lord Denning [1960] A.C. 965 said (at p.978) that it
was ‘clear that in the ordinary way the Court of Appeal cannot take into
account a statute which has been passed in the interval since the case was
decided at first instance, because the rights of litigants are generally to be
determined according to the law in force at the date of the earlier
proceedings. But it is different when the statute is retrospective either because
it contains clear words to that effect or because it deals with matters of
procedure only, for then Parliament has shown an intention that the Act
should operate on pending proceedings, and the Court of Appeal are entitled
to give effect to this retrospective intent as well as a court of first instance.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
100/119
For this purpose, however, a statute which actually takes away the right of
appeal is not to be regarded as affecting mere matters of procedure.”
As expressed by Lon Fuller, -- the Mortality of Law (1960) :
“It is when things go wrong that the retroactive validating statute often
becomes indispensable as a curative measure; though the proper movement of
law is forward in time, we sometimes have to stop and turn about and pick up
the pieces”
117 . With this well settled principle being kept in mind, we have
examined the Amendment Act of 2023, which was based on bill
no.26 of 2023 and sub-section (2) of the said Act set out that the
amending Act shall come into force on 21/12/2016.
By the Amendment Act, the order of legal succession as it
originally stood, was substituted by providing that the legal
succession shall devolve firstly on the descendants then on the
surviving spouse, to be followed by the ascendants, brother and
sisters and their descendants and on the collaterals. However, the
said provision is appended with an explanation, which clarified that
the provision of the substituted sub-section (1) as amended by the
Amendment Act, 2023 shall not disturb the rights which got
crystallized before the enactment of the Act of 2023, but it shall be
applicable to the cases/appeals pending before different Courts.
The legislature, by the amendment has therefore, clarified that
the rights which are crystallized i.e. which have become clear and
fixed will not disturbed by the Amending Act i.e. change in the order
of succession, but those rights which are still open on account of
pendency of the cases/appeals before different Courts in contrast to
the rights beings crystallized would continue to be governed by the
new Act.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
101/119
Though the Amending Act provide that it shall be deemed to
come into force on 21st Day of December, 2016, the explanation has
saved it from being entirely restrospective, as it provide that before
the enactment of the Act of 2023, if the rights are crystallized i.e.
taken a concrete form, they shall not be disturbed, but those which
are not yet crystallized and are pending for adjudication before the
competent court i.e. in form of cases or appeals on the date of
enactment of the Act of 2023, then such rights shall be governed by
the new order of succession.,
118 . Corresponding to the order of succession under Section 52,
there is also an amendment in Section 72, which is the consequences
of the change in the order of succession in Section 52, as there is a
change in the succession of ascendants i.e. parents and as per the
amended provision, when a person dies without descendants and the
spouse, since the spouse has now taken precedence over the parents,
the inheritance of the deceased shall be succeeded by his father and
mother i.e. the ascendants. Similarly, in respect of the succession of
brothers and sisters and their descendants, the consequential
amendment pursuant to the change in the order of succession, now
brought change in Section 76 by providing that in default of the
descendants, spouse and the ascendants, his brothers, sisters and in a
representative capacity, their descendants shall inherit the assets.
Similarly, Section 77 which was a provision for succession of
surviving spouse, is also amended to the effect that in default of the
descendants, the surviving spouse shall succeed, as this category of
heir now immediately fall in line of succession after the descendants.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
102/119
119 . The consequences to the change in the order of succession in
Section 52, there is a amendment in Section 83 as far as disposable
portion of the estate is concerned and the legitime also has now
changed the sequence, where the legitime of descendants is followed
by the legitime of the spouse, to be followed by the legitime of the
parents and the legitime of the other ascendants. Thus, the amended
Section 83 contemplate that where the estate leaver has children or
descendants at the time of his death, their legitime shall consist of
half of the inheritance, as the half portion is the estate leavers
disposable portion. However, as far as the spouse is concerned,
where the estate leaver has no descendants, but the spouse is alive,
her legitime shall consists of his entire inheritance. The legitime of
the parents, when the estate leaver has not left behind any
descendants or spouse and father or mother is alive, then their
legitime shall consists of entire inheritance.
(VIII) Effect of Explanation appended to Section 52 by the Amending
Act of 2023
120 . It is because of the change in the order of succession, in
Section 52, the consequential provisions in the Act of 2012 also
received consequential amendment.
The explanation appended to Section 52, has explained the
effect of the Amending Act, where it is provided that it shall deem to
have been come into force on 21/12/2016. An explanation appended
to a Section offers to explain the meaning of the words contained in
that Section and it becomes part and parcel of the enactment.
As per the principle of statutory interpretation by Justice
G.P.Singh, 13th Edition 2012, “the meaning to be given to an
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
103/119
‘Explanation’ must depend upon its terms and ‘no theory of its
purpose can be entertained unless it is to be inferred from the
language used’. But if the language of the Explanation shows a
purpose and a construction consistent with that purpose can be
reasonably placed upon it, that construction will be preferred as
against any other construction which does not fit in with the
description or the avowed purpose.”
In Sundaram Pillai Vs. Pattabiraman (Supra), Fazal Ali, J.,
culled out from the earlier cases the following as objects of an
Explanation to a statutory provision :
“(a) to explain the meaning and intendment of the Act itself,
(b) where there is any obscurity or vagueness in the main enactment,
to clarify the same so as to make it consistent with the dominant object
which it seems to subserve.
(c) to provide an additional support to the dominant object of the Act
in order to make it meaningful and purposeful.
(d) an Explanation cannot in any way interfere with or change the
enactment or any part thereof but where some gap is left which is relevant
for the purpose of the Explanation, in order to suppress the mischief and
advance the object of the Act it can help or assist the Court in interpreting
the true purport and intendment of the enactment, and
(e) it cannot, however, take away a statutory right with which any
person under a statute has been clothed or set at naught the working of an
Act by becoming an hindrance in the interpretation of the same.”
121 . It can be thus seen that the ‘Explanation’ is capable of
providing an additional support to the dominant object of the Act in
order to make it meaningful and purposeful. Since, the meaning to be
given to an explanation will really depend upon its terms and when
the intention of the legislature can be clearly discerned with no
ambiguity, but emerging with clarity and certainty, definitely the
explanation appended to a provision act as an aid in construction of
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
104/119
the statute or a particular provision therein.
The Amendment Act of 2023, which is deemed to have come
122.
into force on 21/12/2016, by the explanation appended to the
provision, the legislature has made it clear that those rights, which are
crystallized before the enactment of Act of 2023, they shall not be
disturbed i.e. the rights conferred on the line of successors, which
preceded the surviving spouse will not be writ of or divested, but
where the rights are not yet crystallized and are pending in form of
cases/appeals in different Courts, then the order of succession and the
entitlement of heirs shall be governed by the amended Section 52.
There is no complete embargo, as sought to be canvassed
before us, on the legislature that it cannot make retrospective
legislation and the power to make laws include the power to give it
retrospective effect. A statute or provision is retrospective, when it
has the effect of taking away or impairing any vested right acquired
under the existing laws or creating a new application or imposition of
a new duty or attach a new liability in respect of transactions, which
have taken place in the past. Retrospectivity, therefore, convey
impacting the existing right by reopening up of the past, closed and
completed transactions. It also mean deprivation of accrued rights.
The explanation appended to Section 52, however, has clarified
that the Amending Act, no way has any impact on the rights, which
are crystallized.
A succession, which has opened up on the death of the estate
leaver and the heirs have already become the owners of the estate on
account of its inheritance, before the Act of 2023 came into effect,
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
105/119
according to the legislature, are not to be divested of their rights.
However, in respect of those whose rights are not crystallized, but are
still subjected to some proceedings, pending in the Court in form of
cases/appeals i.e. where the finality is not attached to those rights,
they being not ‘crystallized’ would be governed by the law, which has
come into effect from 2016, though by the Amending Act of 2023.
123. Craies on Statute Law (7th Edn.) at p.396 has clearly
prescribed that, if a statute is passed for the purpose of protecting the
public against some evil or abuse, it may be allowed to operate
retrospectively, although by such operation it will deprive some
person or persons of a vested right.
The larger public interest is one of the relevant considerations
in determining the constitutional validity of a retrospective
legislation.
124. In Virender Singh Hooda & Ors. Vs. State of Haryana &
37
Anr. , with reference to the provisions of Haryana Civil Service
(Executive Branch) and Allied Services and Other Services,
Common/Combined Examination Act, 2002, which was assailed on
the ground that it amounted to usurpation of judicial power by the
legislature with a view to overrule the decision of the Apex Court, the
contention was rejected by holding that the Act removed the basis of
the decision in the said cases by repealing the circulars.
The challenge to the law on the ground of it being retrospective
was also negated by holding that a valid law, prospective or
retrospective, cannot be declared as ultra vires on the ground that it
would nullify the benefit which would otherwise have been available
37 (2004) 12 SCC 588
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
106/119
as a result of applicability of the interpretation placed by a superior
court. The pertinent observations in this regard are to be found in
paragraphs 33 to 35 and read thus :-
“33. The legislative power to make law with retrospective effect is well
recognised. It is also well settled that though the legislature has no power to
sit over court's judgment or usurp judicial power, but, it has, subject to the
competence to make law, power to remove the basis which led to the court's
decision. The legislature has power to enact laws with retrospective effect but
has no power to change a judgment of court of law either retrospectively or
prospectively. The Constitution clearly defines the limits of legislative power
and judicial power. None can encroach upon the field covered by the other.
The laws made by the legislature have to conform to the constitutional
provisions. Submissions have also been made on behalf of the petitioners that
by enacting law with retrospective effect, the legislature has no power to take
away vested rights. The contention urged is that the rights created as a result
of issue of writ of mandamus cannot be taken away by enacting laws with
retrospective effect. On the other hand, it was contended on behalf of the
respondent State that the power of the legislature to enact law with
retrospective effect includes the power to take away vested rights including
those which may be created by issue of writs.
34. Every sovereign legislature possesses the right to make retrospective
legislation. The power to make laws includes power to give it retrospective
effect. Craies on Statute Law (7th Edn.) at p. 387 defines retrospective
statutes in the following words:
“A statute is to be deemed to be retrospective, which takes away or impairs
any vested right acquired under existing laws, or creates a new obligation, or
imposes a new duty, or attaches a new disability in respect to transactions or
considerations already past.”
Judicial Dictionary (13th Edn.), K.J. Aiyar, Butterworth, p. 857, states that
the word “retrospective” when used with reference to an enactment may
mean (i) affecting an existing contract; or (ii) reopening up of past, closed
and completed transaction; or (iii) affecting accrued rights and remedies; or
(iv) affecting procedure. Words and Phrases, Permanent Edn., Vol. 37-A, pp.
224-25, defines a “retrospective or retroactive law” as one which takes away
or impairs vested or accrued rights acquired under existing laws. A
retroactive law takes away or impairs vested rights acquired under existing
laws, or creates a new obligation, imposes a new duty, or attaches a new
disability, in respect to transactions or considerations already past.
35. In Harvard Law Review, Vol. 73, p. 692 it was observed that
“it is necessary that the legislature should be able to cure inadvertent defects
in statutes or their administration by making what has been aptly called
‘small repairs’. Moreover, the individual who claims that a vested right has
arisen from the defect is seeking a windfall since had the legislature's or
administrator's action had the effect it was intended to and could have had,
no such right would have arisen. Thus, the interest in the retroactive curing of
such a defect in the administration of government outweighs the individual's
interest in benefiting from the defect”.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
107/119
The prohibition of the passage of ‘retroactive laws’ refers only
to retroactive laws that injuriously affect some substantial or vested
right, and does not refer to those remedies adopted by a legislative
body for the purpose of providing a rule to secure for its citizens the
enjoyment of some natural right, equitable and just in itself, but
which they were not able to enforce on account of defects in the law
or its omission to provide the relief necessary to secure such right.
38
125. In Vijay Vs. State of Maharashtra & Ors , where a provision
of disqualification introduced in the Bombay Village Panchayats Act,
1958, as amended w.e.f. 08/08/2003, provided that a person, who
“has been elected as a Councilor of Zila Parishad or as a member of
the Panchayat Samiti” is disqualified from being member of a
Panchayat. The Act in form of disqualifying statute disclose the
intention of the legislature to have a retrospective effect. The
appellant, who was elected in terms of the provisions of the statute
and since his right to be elected was created by a statute, it is held
that it can be taken away by a statute. The Apex Court in this context
observed thus :-
“8. The general rule that a statute shall be construed to be prospective
has two exceptions: It should be expressly so stated in the enactment or
inference in relation thereto becomes evident by necessary implication.
9. In the instant case it is stated expressly that the amendment would
apply also to a case where the elected candidate had been elected as a
member of the Panchayat earlier thereto. It not only incorporates within its
purview all persons who would be members of the Panchayat in futuro, but
also those who were sitting members. In other words, the bar created to hold
the post of member of the Panchayat would bring within its purview also
those who were continuing to hold post.
10. It may be true that the amendment came into effect on 8-8-2003.
The legislative policy emanating from the aforesaid provision, in our
opinion, is absolutely clear and unambiguous. By introducing the said
provision, the legislature,inter alia, intended that for the purpose of bringing
38 (2006) 6 SCC 289.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
108/119
grassroot democracy, a person should not be permitted to hold two posts
created in terms of the Constitution (73rd Amendment) Act. It is true that
ordinarily a statute is construed to have prospective effect, but the same rule
does not apply to a disqualifying provision. The inhibition against
retrospective construction is not a rigid rule. It does not apply to a curative
or a clarificatory statute. If from a perusal of the statute, intendment of the
legislature is clear, the court will give effect thereto. For the said purpose,
the general scope of the statute is relevant. Every law that takes away a
right vested under the existing law is retrospective in nature. (See Govt. of
India v. Indian Tobacco Assn.)
126. Holding that since a right to be elected was created by a statute
and it can be taken away by a statute, on reading of the provision,
which intended that it should be given effect retrospectively and since
it did not produce any absurdity or ambiguity, it was held that it
would not be construed as prospective.
Justice S.B.Sinha, speaking for the Bench, pertinently observed
thus :-
“The negation is not a rigid rule and varies with the intention and purpose of
the legislature, but to apply it in such a case is a doctrine of fairness. When a
law is enacted for the benefit of the community as whole,even in the absence
of a provision, the statute may be held to be retrospective in nature. The
appellant does not and cannot question the competence of the legislature in
this behalf.”
127 . In State Bank’s Staff Union (Madras Circle) (supra), the
decision relied upon by the learned Advocate General towed the
above reasoning where the amendment by the Banking Laws
(Amendment) Act, 1983, by virtue of Section 43-A was the subject
matter of challenge. The Amendment Act amended the law on the
foundation whereof the award was made and holding that it was
within the legislative competence of the Parliament and merely
because the rights of some persons such as right to customary bonus
was affected by retrospective effect of the amendment was held to be
not per se violative of Article 14 of the Constitution.
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
109/119
128 . In light of the aforesaid position emerging in law, we do not
find merit in the contention of the Petitioners alleging that on account
of the retrospective effect given to Section 62, the amendment is
liable to be invalidated.
[I] CONCLUSION OF OUR ANALYSIS
129 . There always exists a presumption in favour of the
constitutionality of an enactment, as it is presumed that the legislature
understands and correctly appreciates the needs of its own people and
the laws made are directed to problems made manifest by experience.
When the Constitutionality of an enactment is challenged on the
ground that it violate the fundamental rights enshrined in Part III of
the Constitution, it becomes necessary to ascertain its true nature and
character that is its subject matter, the area in which it is intended to
operate, its purport and intent. In doing so it is perfectly justiciable to
take into consideration the factors like the history of the legislation,
the purpose thereof, the surrounding circumstances, the mischief
which it intended to suppress, and the cure which it offers. The law
will not be declared unconstitutional unless the case is so clear as to
be free from doubt; ‘to doubt the constitutionality of a law is to
resolve it in favour of its validity’.
If the law enacted is within the scope of the power conferred
on a legislature and do not violate any fundamental right, such law
must be upheld and irrespective of the resulting consequences.
130 . In Vineeta Sharma vs. Rakesh Sharma (supra), when the
question concerning interpretation of Section 6 of the Hindu
Succession Act, 1956, as substituted by Hindu Succession
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
110/119
(Amendment) Act, 2005 arose for consideration and was determined
by the larger bench in the wake of the conflicting verdicts rendered
by the two division bench judgments of the Apex Court.
Section 6 of the Act, dealing with devolution of interest in
coparcenary property of a joint Hindu Family, governed by
Mitakshara law, it was noted that the Section originally excluded the
rule of succession concerning Mitakshara Coparcenary Property. It
provided that the interest of a coparcener male Hindu who died after
the commencement of 1956 Act, shall be governed by survivorship
upon surviving members of the coparcenary. The exception was
provided by the proviso appended to the Section that if the deceased
had left surviving a female relative specified in Class I of Schedule or
a male relative specified in that class who claims to be the female
relative, the interest of such coparcener shall devolve by testamentary
or intestate succession, as the case may be, in order to ascertain the
share of the deceased coparcener, the partition has to be deemed
before his death. The substituted provision of Section 6 (1) of the Act
of 1956, provided on and from the commencement of the 2005 Act,
the daughter is conferred the right of coparcener.
Clause (a) of subsection (1) of Section 6, made the daughter, a
coparcener by birth, ‘in her own right’ and ‘ in the same manner as
the son’.
The aforesaid provision was based on concept of unobstructed
heritage of Mitakshara coparcenary, by virtue of birth. Clause (b) of
subsection (1) of section 6 conferred the same rights in the
coparcenary property upon the daughter ‘as she would have had if
she had been a son.’
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
111/119
The conferral right is held by the Apex Court is by birth and
she being introduced in the coparcenary, enjoyed the same status as
that of a son, as she is treated as as coparcener.
131 . The amended provision of Section 6(1) providing that on and
from the commencement of the amendment Act, the daughter is
conferred the right, and when the question arose was about the date
of effect of such a right being introduced by the amending Act, it is
held by the three Judge Bench that though the rights can be claimed
with effect from 09/09/2005, the provisions are of retroactive
application, as they confer benefits based on the antecedent event and
the Mitakshara Coparcenary Law shall be deem to include a reference
to a daughter as coparcener. At the same time, the legislature
provided saving by adding a proviso that any disposition or
alienation, if there be any testamentary disposition of the property or
partition which has taken place before 20/12/2004, the date on which
the bill was presented in Rajya Sabha, the same shall not be
invalidated. In specific words, the Apex Court observed thus:-
“61. The prospective statute operates from the date of its enactment
conferring new rights. The retrospective statute operates backward and takes
away or impairs vested rights acquired under existing laws. A retroactive
statute is the one that does not operate retrospectively. It operates in futuro.
However, its operation is based upon the character or status that arose earlier.
Characteristic or event which happened in the past or requisites which had
been drawn from antecedent events. Under the amended section 6 , since the
right is given by birth, that is an antecedent event, and the provisions operate
concerning claiming rights on and from the date of Amendment Act.”
132 . Holding that the concept of un codified Hindu law of
unobstructed heritage was given a concrete shape by Section 61(a)
and 61(b), it is noted that coparcener’s right is by birth and hence it is
not at all necessary that the father of the daughter should be living as
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
112/119
on the date of amendment, as she has not being conferred the right of
coparcener by obstructed heritage. According to the Mitakashara
coparcenary Hindu Law, which was recognized in Section 6(1). It is
held that it is not necessary that there should be a living coparcener or
father as on the date of the amendment to whom the daughter would
succeed, as the daughter would step into the coparcenary as that of a
son by taking birth before or after the act. However, daughter born
before can claim the right only with effect from the date of the
amendment i.e. 9/09/2005 with saving of past transactions as
provided in the proviso to Section 6(1) r/w Section 6(5).
The effect of the amendment is construed by the Apex Court by
holding that a daughter is made coparcener with effect from the date
of amendment and she can also claim partition. Since Section 6(1)
recognizes a joint Hindu Family governed by Mitakshara Law the
only essential ingredient is, that the coparcenary must exist on
9/09/2005 to enable the daughter of a coparcener to enjoy the rights
conferred on him. It is clearly declared that as the right conferred is
by birth and not by way of inheritance, it is irrelevant that a
coparcener whose daughter is conferred with rights is alive or not as
the conferment of benefit is not based on the death of her father. In
case of a living coparcener dies after 9/09/2005,the inheritance is not
by survivorship but by intestate or testamentary succession as
provided in substituted Section 6 (3). In conclusion, the reference was
answered, it is declared that the rights can be claimed by the daughter
born earlier with effect from 09/09/2005 with savings as provided in
Section 6(1) as to the disposition or alienation, partition, or
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
113/119
testamentary disposition, which have taken place before 20/12/2004.
In order to give full effect to the substituted Section 6, it is also
declared that ‘notwithstanding that a preliminary decree has been
passed, the daughters are to be given share in coparcenary equal to
that of son in pending proceedings for final decree or in an appeal.’
This conclusion was drawn in the backdrop that the statutory fiction
of partition created by proviso to Section (6) of the Hindu Succession
Act, 1956 as originally enacted did not bring about the actual
partition or division of coparcenary. The fiction was only for the
purpose of ascertaining the share of deceased coparcener when he
was survived by a female of class I as specified in Schedule of 1956
Act or male relative of such female, but since the provision stands
substituted, the daughter is entitled for her share, when the
proceedings are pending for final decree or they are in an appeal.
133 . Under the Act of 2012, the succession opens upon the death of
the estate leaver as per Section 8. Every person, who is born or
conceived at the time of opening of succession is competent to
succeed unless specifically prohibited. Under the Act, the moment
the estate leaver dies, the ownership and possession of the inheritance
is transmitted to the heir. 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 assets constituting it. Once
there is transmission of inheritance on death of the estate leaver and if
there are more than one person who has claim of inheritance, their
rights remain indefeasible, both in respect of ownership and
possession, till the partition is effected. A co-heir who has been
bestowed with inheritance, is however, not entitled to dispose of any
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
114/119
specific asset of inheritance or part of such an asset to a stranger until
and unless it is allotted to him in partition and any such transfer
made is inoperative and void.
In light of the Scheme of the Goa Succession Act of 2012 in
the backdrop of the Civil Code, the learned Advocate General and
Mr. De Sa have urged before us that the right which is transmitted to
an heir is not vested or crystallized on the death, but it becomes
vested or crystallized only when the share devolve on him through
the inventory proceedings.
We have been taken through the inventory proceedings
contemplated in Part IV of the Act, in form of mandatory and
optional inventory and the Scheme of Partition, as contemplated
under Section 435(1). When a Scheme of partition furnished is
accepted and the property is partitioned, the Court shall issue final
order within 10 days from payment of stamp duty, declaring the
successors and confirming the chart of partition.
It is, thus, submitted before us that unless and until the
inventory proceedings reach at this stage, no right is vested in a legal
heir.
We do not subscribe to the said submission, as we find that the
statutory indication is otherwise.
As per the Scheme of Chapter II the succession opens upon the
death of the estate leaver and the moment the estate leaver dies, the
ownership and possession of inheritance is transmitted to the heirs.
This inheritance may be partitioned by a mandatory inventory or
optional inventory. When an estate leaver leaves behind the
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
115/119
surviving spouse or an heir any of whom is an interdict, absent
person unknown or a minor, then the inheritance shall be partitioned
only through the inventory proceedings which are mandatory
inventory proceedings. But in absence of any such heir, the Parties
may institute optional inventory proceedings. The inventory
proceedings under the Act of 1962 can be initiated by a legal heir, a
moiety holder (spouse) , executor of a Will or, legatee or an usufruct.
The right to demand partition is conferred on any of the co-
heir who has succeeded the estate of the deceased or it may be a
moiety holder or so. However, by virtue of Section 3 of Section 19
the Parties may agree to keep the inheritance undivided for a certain
period which shall not exceed five years. It is also possible for the
heirs to partition the inheritance by consent by executing a Deed of
Partition under the Registration Act, 1908, which is preceded by a
Deed of Declaration of heirship. But where there is more than one
person who claim inheritance, they may choose to institute inventory
proceedings to partition the inheritance, when there is no consensus
and a contest is expected.
Till the time the partition is effected, the rights of the heirs
remain indivisible and there is an embargo on the co-heir not to
dispose of any specific assets of inheritance which is not allotted to
him in partition and if he does so, such a transaction is inoperative
and void.
Perusal of Part IV in form of inventory proceedings to be
followed by the subsequent provisions, pertaining to the procedure to
be followed in conduct of the inventory proceedings, with the
confirmation of partition through a final order by the Court under
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
116/119
Section 442 would reveal that it is a process to be followed, when the
heirs or surviving spouse succeed to inheritance and no consensus
can be arrived sufficient enough to execute a Partition Deed and the
shares of the parties in the inheritance are to be determined.
In the said proceedings of inventory, which are instituted by
presenting a Petition, by appointing the head of the family and the
Court before whom the Petition is instituted shall conduct the
hearings which shall include the preparation of list of assets,
preparation of chart of partition and after issuing summons/process to
the concerned i.e. moiety holder, heir or spouse, the Court shall
determine the share of those who have inherited the estate of the
estate leaver. The Court shall permit the right of preemption, consider
the objections to the list of assets prepared and also take into
consideration the payment of debts of inheritance, creditors claim and
value the assets left behind by the estate leaver and to prepare a final
list of assets and liabilities. The Court is also competent to divide
immovable properties except residential houses by metes and
bounds in accordance with the shares to be allotted to the respective
interested parties.
The whole inventory procedure contemplated under the Act
would, therefore, entitle the heirs/the moiety holder or other
interested party , who has succeeded the estate of the deceased to
have his/her share carved out, so that the shackles of indefeasibleility
of the estate are shelled out and every heir, moiety holder becomes an
absolute and exclusive owner of his share transmitted to him by
succession.
Thus, according to us, for enjoying the exclusivity of the
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
117/119
property in our view the inventory proceedings are initiated and
concluded, but succession opens on the death of the estate leaver and
the right definitely vest once the succession opens, but the actual
demarcation/identification of the share of individual heir gets
crystalized only upon completion of the inventory proceedings. We,
therefore, do not find substance in the submission of the learned
Advocate General that no right is vested in an heir unless the whole
process of partition is completed through inventory proceedings.
The contention advanced on behalf of the State that there is no
vested right in an heir unless upon acceptance of the inheritance, the
process of inventory and crystalization of the rights is undergone.
However, from reading of the provisions relating to acceptance and
renunciation of succession, we can easily infer that acceptance need
not be expressed and it can be inferred even from the Tacit Act. On
the other hand, ‘renunciation’ has to be expressed in form of a public
document, drawn before a Notary public or through the proceedings
instituted for this purpose before the Civil Court. Thus, acceptance
of inheritance is not a juridical act that has a result of vesting rights
in property constituting the estate. Thus, vesting of right do not
depend upon acceptance of inheritance and merely because stage of
acceptance is not crossed according to us it cannot be said that the
transmission/vesting of ownership and possession of inheritance as
set out in Section 13 do not take place.
On the other hand, even in terms of Article 2011 of the Civil
Code and Section 13 of the Act, transmission / vesting of ownership
and possession took place no sooner the estate leaver expires and the
inheritance is opened. The process of inheritance has to be followed
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
118/119
for the purpose of partition of estate, is only to confer exclusive
ownership right on the heirs, but it is completely unjusticiable to
assume that unless and until the property is partitioned, the right is
not vested. In fact, existence of a vested right itself is a pre-requisite
for seeking partition.
134. On testing the arguments advanced by the learned respective
counsel in assailing the validity of the amending Acts and upon
consideration of the arguments of the learned Advocate General, in
light of the well settled principles revolving around Article 14 of the
Constitution of India and on consideration of another facet pressed
into service about the amending Act of 2022, being given
retrospective effect, we record our conclusion that we do not find
merit in either of the contentions.
We do not find that the amending Act of 2022 changing the
order of succession to be arbitrary as contended by Mr.Ramani and
Mr.Frias. On the other hand by applying the test of ‘manifest
arbitrariness’ as enunciated by the Hon’ble Apex Court, we do not
find that the change brought in Section 52 of the Act of 2012 and the
consequential amendment in the constitute in any way leads to
arbitrariness. On the other hand, we find the legislature acting in
larger interest of the spouse, who under the Portuguese Civil Code
enjoyed a distinct position in marriage and even while sharing the
property of another spouse and in our view the amendment has
advanced this principle prevailing in the city of Goa since the
Portuguese rule.
Similarly, we also do not find that the amending Act of 2023 is
retrospective in operation and would rob of those rights which are
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::
WP 81-25.doc
119/119
vested and crystalized as the explanation appended to Section 52
has clarified that the crystalized rights shall not be disturbed and only
those rights which are open in some proceedings before the Court
will be governed by the amending Act.
The submission of Mr.Nadkarni about the autonomy of the
parties who had resorted to ante-nuptial agreement, being defeated
also do not appeal to us as though during the subsistence of the
marriage, the Parties will be governed by the contract which they
have entered into, upon death of one of the spouse, the other spouse
shall inherit and succeed in accordance with the provisions of the Act
of 2012 without any discrimination.
We, therefore, even reject the challenge on the ground raised
by Mr.Nadkarni.
Finding no merit and substance in the challenge raised before
us in the two Writ Petitions alongwith the Applications filed by the
Intervenors, we are not persuaded to entertain the challenge to the
validity of the Goa amending Act 2022 and the Goa amending Act of
2023 on either of the grounds raised before us. For this reason, we
dismiss the Writ Petitions alongwith the Miscellaneous Civil
Applications.
Rule is discharged.
Easy on costs.
(ASHISH S. CHAVAN, J.) (BHARATI DANGRE, J.)
Arati/ Rajeshree/ Ashish
::: Uploaded on - 14/05/2026 ::: Downloaded on - 30/05/2026 00:01:35 :::