Case Note & Summary
The appeal challenges an order dated 18.06.2008 whereby the objections raised by the appellants to the validity of the Will dated 18.09.1991 came to be dismissed. The appellants are the legal heirs of the deceased husband and the respondent is the surviving spouse. The appellants contended that the Will executed by the surviving spouse bequeathing specific properties of the couple is a nullity under Article 2177 of the Portuguese Civil Code as the properties were not allotted to her. The learned Judge had dismissed the objections holding that the court lacks jurisdiction to examine the said aspect. The High Court allowed the appeal, holding that the objections to the validity of the Will on the ground of nullity under Article 2177 of the Portuguese Civil Code can be examined in probate proceedings. The impugned order was set aside and the matter was remanded back to the trial court for fresh consideration of the objections.
Headnote
A) Succession Law - Will - Nullity - Article 2177 of Portuguese Civil Code - The surviving spouse bequeathed specific properties of the couple which were not allotted to her. The court held that such a Will is a nullity under Article 2177 of the Portuguese Civil Code and the objections to its validity can be examined in probate proceedings. (Paras 4-5)
Issue of Consideration
Whether the objections raised by the appellants to the validity of the Will dated 18.09.1991 on the ground that it is a nullity under Article 2177 of the Portuguese Civil Code can be examined in probate proceedings.
Final Decision
Appeal allowed. Impugned order dated 18.06.2008 set aside. Matter remanded back to the trial court for fresh consideration of the objections raised by the appellants to the validity of the Will dated 18.09.1991.
Law Points
- Article 2177 of Portuguese Civil Code
- Will nullity
- Probate jurisdiction
- Objections to validity of Will
Case Details
2014 LawText (BOM) (07) 117
Appeal from Order No. 98 of 2008
Mr. Iftikhar Agha for appellants, Mr. V. Menezes for respondent
Mrs. Nirmala Vassant Dessai and others
Mrs. Tulsi Sadananda Dessai
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Nature of Litigation
Appeal against order dismissing objections to validity of Will
Remedy Sought
Setting aside of order dated 18.06.2008 and declaration that Will is nullity
Filing Reason
Appellants challenged the order dismissing their objections to the validity of the Will dated 18.09.1991
Previous Decisions
Order dated 18.06.2008 dismissing objections to validity of Will
Issues
Whether the objections to the validity of the Will on the ground of nullity under Article 2177 of the Portuguese Civil Code can be examined in probate proceedings.
Submissions/Arguments
Appellants argued that the Will executed by the surviving spouse bequeathing specific properties of the couple is a nullity under Article 2177 of the Portuguese Civil Code as the properties were not allotted to her.
Respondent argued that the court lacks jurisdiction to examine the validity of the Will in probate proceedings.
Ratio Decidendi
Objections to the validity of a Will on the ground of nullity under Article 2177 of the Portuguese Civil Code can be examined in probate proceedings. The court has jurisdiction to consider such objections.
Judgment Excerpts
The Will executed by the surviving spouse of a specific properties is a nullity in terms of Article 2177 of the Portuguese Civil Code.
The learned Judge was not justified to pass the impugned order and come to the conclusion that it lacks jurisdiction to examine the said aspect.
Procedural History
The appellants filed objections to the validity of the Will dated 18.09.1991 in probate proceedings. The trial court dismissed the objections by order dated 18.06.2008. The appellants appealed against that order.
Acts & Sections
- Portuguese Civil Code: Article 2177
