Case Note & Summary
The case involves an appeal from order in inventory proceedings. The appellant, Mrs. Anisia Coutinho, was married to respondent no. 3 under the regime of communion of assets. Her father-in-law, Santan Coutinho, died during the subsistence of the marriage. Subsequently, the marriage was dissolved by a divorce decree dated 20.03.2007. In 2010, the respondents filed an application seeking removal of the appellant as Cabeca de Casal, discard her statement of oath, and drop the inventory proceedings. The learned Judge dropped the proceedings on the ground that the appellant was not an heir of the deceased. The appellant challenged this order. The High Court considered the submissions and held that the appellant, having been married under communion of assets, had a right/interest in the estate of the deceased. The divorce did not disentitle her to that right. The court found the impugned order unsustainable and set it aside, allowing the appeal and restoring the inventory proceedings.
Headnote
A) Succession Law - Inventory Proceedings - Heirship - Portuguese Civil Code, 1860 - Divorced wife married under communion of assets retains right to deceased father-in-law's estate - The court held that the appellant, though divorced, had an interest in the estate of the deceased as she was married under communion of assets and the deceased died during the subsistence of the marriage. The divorce decree did not extinguish her right to the estate. (Paras 2-5) B) Civil Procedure - Appeal from Order - Maintainability - Order under challenge - The appeal challenged the order dated 02.02.2012 dropping inventory proceedings on the ground that the appellant was not an heir. The court found the order unsustainable and set it aside. (Paras 2, 5)
Issue of Consideration
Whether a divorced wife, who was married under communion of assets, can maintain inventory proceedings as an heir of her deceased father-in-law?
Final Decision
The appeal is allowed. The impugned order dated 02.02.2012 is set aside. The inventory proceedings are restored to file. The learned Judge is directed to proceed with the inventory proceedings in accordance with law.
Law Points
- Inventory proceedings
- communion of assets
- heirship
- divorce effect on property rights
- Portuguese Civil Code
- 1860
