Case Note & Summary
The appellant, Avertano Paul Souza Fernandes, filed an appeal against the order of the Comarca Judge of Salcete and Quepem at Margao rejecting his application to intervene in Inventory Proceedings initiated by the Inventariante, Mrs. Clarina Miranda Dias. The appellant claimed he was married to Sushila L. Dias, daughter of the estate leaver, on 14/9/1986, and the marriage subsisted until a decree of divorce was obtained on 7/2/1991 under Article 4(4) of the Law of Divorce. He sought to be added as an interested party to the inventory proceedings. The factual matrix revealed that the marriage was solemnized in Bombay under the Special Marriage Act and was not registered in Goa. The respondents opposed the application, arguing that the appellant could not claim any right in the estate of the deceased because the custom of communion of assets under Portuguese law did not apply to marriages celebrated under the Special Marriage Act in Bombay. The learned Comarca Judge held that the privilege of communion of assets is available only to parties who register their marriage in Goa, and the divorce obtained in Goa only proves dissolution of marriage, not communion of assets. The appellant appealed this decision. The High Court of Bombay at Goa heard the appeal. The court noted that the marriage was not registered in Goa and, therefore, the communion of assets under the Portuguese Civil Code did not apply. The court upheld the lower court's decision, dismissing the appeal with no order as to costs. The court reasoned that the appellant had no legal interest in the inventory proceedings as he could not claim communion of assets. The judgment was delivered by Justice P.V. Kakade on 16th November 2006.
Headnote
A) Succession and Inheritance - Inventory Proceedings - Intervention by Third Party - The appellant sought to intervene in inventory proceedings claiming communion of assets based on marriage to the deceased's daughter - The marriage was solemnized in Bombay under the Special Marriage Act and not registered in Goa - Held that the privilege of communion of assets under Portuguese Civil Code is available only to parties who register their marriage in Goa, and the divorce decree does not confer such right (Paras 2-5).
Issue of Consideration
Whether a divorced spouse can claim communion of assets in inventory proceedings when the marriage was solemnized under the Special Marriage Act in Bombay and not registered in Goa
Final Decision
Appeal dismissed with no order as to costs.
Law Points
- Communion of assets under Portuguese Civil Code requires marriage registration in Goa
- Special Marriage Act marriage does not confer communion rights
- third party cannot intervene in inventory proceedings without legal interest
Case Details
2006 LawText (BOM) (11) 83
Appeal from Order No. 78 of 2001 with Civil Application No. 201 of 2001
Mr. F.J. Colaco with Ms. Tereza Colaco, Advocates for the Appellant. None for the Respondents.
Mr. Avertano Paul Souza Fernande alias Sqn. Ldr A.P. Fernandes
Mrs. Clarina Miranda Dias (deleted), Mrs. Sushila Leonardo Souza Fernandes alias Sushila L. Dias, Mrs. Sita Leonardo Dias Chodnekar alias Sita Leonardo Dias, Mr. Hemant Chodnekar, Mr. Rabindra Antonio Leonardo Dias, Mrs. Nanda Sales Dias, Mr. Jawahar Leonardo Dias, Felicia Mendes Dias
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Nature of Litigation
Appeal against rejection of application to intervene in Inventory Proceedings
Remedy Sought
Appellant sought to be added as an interested party in the Inventory Proceedings
Filing Reason
Appellant claimed right to communion of assets based on marriage to the daughter of the estate leaver
Previous Decisions
Comarca Judge rejected the application holding that communion of assets privilege is not available as marriage was not registered in Goa
Issues
Whether the appellant, as a divorced spouse, can claim communion of assets in inventory proceedings when the marriage was solemnized under the Special Marriage Act in Bombay and not registered in Goa
Submissions/Arguments
Appellant submitted that he was married to Sushila L. Dias on 14/9/1986 and obtained divorce on 7/2/1991, and therefore he should be added as an interested party in the inventory proceedings.
Respondents opposed, submitting that the marriage was not registered in Goa, so communion of assets under Portuguese law does not apply, and the appellant has no right in the estate.
Ratio Decidendi
The privilege of communion of assets under Portuguese Civil Code is available only to parties who register their marriage in Goa. A marriage solemnized under the Special Marriage Act in Bombay and not registered in Goa does not confer communion rights. The divorce decree only proves dissolution of marriage, not communion of assets.
Judgment Excerpts
The marriage between Sushila L. Dias and Avertano Fernandes was solemnized in Bombay and was not registered in Goa. Hence, the custom of communion of assets would not apply to the marriage celebrated under the Special Marriage Act in Bombay.
The privilege can be taken by parties who register their marriage in Goa. The divorce obtained in Goa only proves the dissolution of marriage and does not cover the privilege of communion of assets.
Procedural History
The appellant filed an application to intervene in Inventory Proceedings before the Comarca Judge of Salcete and Quepem at Margao, which was rejected. The appellant then filed the present appeal before the High Court of Bombay at Goa.
Acts & Sections
- Special Marriage Act:
- Portuguese Civil Code (Codigo Civil):
- Law of Divorce: Article 4(4)
