Goa Legislature Secretariat - Government Printing · PDF fileGoa Legislature Secretariat LA/QB/SC/2010/1758 The following Report of Select Committee on “The Goa Succession, Special

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Panaji, 12th August, 2010 (Sravana 21, 1932) SERIES I No. 20

Reg. No. GR/RNP/GOA/32 RNI No. GOAENG/2002/6410

PUBLISHED BY AUTHORITY

Goa Legislature SecretariatLA/QB/SC/2010/1758

The following Report of Select Committee on “The Goa Succession, Special Notaries andInventory Proceeding Bill, 2008 (Bill No. 36 of 2008) & Bill No. 36 of 2008 on “The Goa Succession,Special Notaries and Inventory Proceeding Bill, 2008 – (As Reported by the Select Committee)laid in the Legislative Assembly of the State of Goa on 2nd August, 2010 is hereby published forgeneral information in pursuance of Rule - 231 of the Rules of Procedure and Conduct of Businessof the Goa Legislative Assembly.

__________

FIFTH LEGISLATIVE ASSEMBLY

OF THE STATE OF GOA

REPORT

OF THE

SELECT COMMITTEE ON BILL No. 36 OF 2008 – THE GOA SUCCESSION, SPECIAL

NOTARIES & INVENTORY PROCEEDING BILL, 2008

Presented to the House on 2nd August, 2010

GOA LEGISLATURE SECRETARIAT

ASSEMBLY HALL

PORVORIM-GOA

INDEX

Bills/Notification/Order

LA/QB/SC/2010/1758

LA/LEGN/2010/1770LA/LEGN/2010/1771LA/LEGN/2010/1772LA/LEGN/2010/1773

Ord. 12/15/2008--LD/Estt./1252

Subject

Report & Bill of –The Goa Succession, Special Notaries& Inventory Proceeding Bill, 2008.The Goa Appropriation (No. 4) Bill, 2010.The Goa Appropriation (No. 5) Bill, 2010.The Goa Appropriation (No. 6) Bill, 2010.The Goa Appropriation (No. 7) Bill, 2010.

Acceptance of Medical Allowance of PadmanabhanCommittee to all District and Civil Judges.

Pages

677

785786788790

792

Department

1. a. Goa Legislature Secretariat

b. —do—c. —do—d. —do—e. —do—

2. Law & JudiciaryEstt. DivisionUnder Secretary

NOTE

There is one Extraordinary issue to the Official Gazette, Series I No. 19 dated 5-8-2010 namely, Extraordinary dated10-8-2010 from pages 665 to 676 regarding The Goa Appropriation (No. 2) & (No. 3) Bills, 2010, and The Goa Appropriation(No. 2) & (No. 3) Acts, 2010 – Nots. No. 7/8/2010-LA, No. 7/9/2010-LA from Goa Legislature Secretariat & Department ofLaw & Judiciary (Legal Affairs Division).

OFFICIAL GAZETTE — GOVT. OF GOASERIES I No. 20 12TH AUGUST, 2010

678

CONTENTS Page nos.

COMPOSITION OF THE SELECT COMMITTEE - 678, 679

INTRODUCTION - 680

REPORT - 680 to 686

PROPOSED AMENDMENTS - 687 to 690

ANNEXURE - I

MINUTES OF THE MEETINGS - 690 to 702

APPENDIX - I TO IX

BULLETIN PART – I No. 5 DATED 14-1-2005

COMPOSITION

THE SELECT COMMITTEE ON BILL No. 5 – THE GOA SUCCESSION, SPECIAL NOTARIES

& INVENTORY PROCEEDING BILL, 2005

CHAIRMAN

Shri Francis D’Souza

Minister for Law

MEMBERS

Shri P. R. Rane …. Leader of Opposition

Dr. Wilfred D’Souza

Shri Rajendra Arlekar

Shri Laxmikant Parsekar

LEGISLATURE SECRETARIAT

Shri S. A. Narvekar ….......Secretary

Shri J. N. Braganza…....... Under Secretary

OFFICIAL GAZETTE — GOVT. OF GOA

SERIES I No. 20 12TH AUGUST, 2010

679

COMPOSITION

THE SELECT COMMITTEE ON BILL No. 36 – THE GOA SUCCESSION, SPECIAL NOTARIES &

INVENTORY PROCEEDING BILL, 2008

CHAIRMAN

Shri Nilkanth Halarnkar

(till 08-06-2010)

MEMBERS

Smt. Victoria Fernandes

Shri Francis D’Souza

Shri Damodar Naik

Shri Deepak Dhavalikar

Shri Aleixo Reginaldo Lourenco

Shri Dayananad Sopte


Shri J. N. Braganza ………..Secretary

(w.e.f. 11-6-2009 till date)

Smt. Ligia Godinho Under Secretary

Shri J. C. Pereira……. …… Section Officer

COMPOSITION

THE SELECT COMMITTEE ON BILL No. 36 – THE GOA SUCCESSION, SPECIAL NOTARIES

& INVENTORY PROCEEDING BILL, 2008.

CHAIRMAN

*Shri Francis D’Souza

MEMBERS

Smt. Victoria Fernandes

Shri Damodar Naik

Shri Deepak Dhavalikar

Shri Aleixo Reginaldo Lourenco

Shri Dayananad Sopte


Shri J. N. Braganza ………..Secretary

(w.e.f. 11-6-2009 till date)

Smt. Ligia Godinho............ Under Secretary

Shri J. C. Pereira……. …… Section Officer


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*Shri Nilkanth Halarnkar, Chairman of the Select Committee being inducted as Minister on

08-06-2010, the Honourable Speaker has authorized/nominated Shri Francis D’Souza, MLA, one

of the member of the Committee to act as the Chairman of the Select Committee.

INTRODUCTION

I, the Chairman of the Select Committee on Bill No. 36 of 2008- The Goa Succession, SpecialNotaries & Inventory Proceedings Bill, 2008 have been authorized by the Committee to presentthis Report to the House during the Eleventh Session of the Fifth Legislative Assembly of Goa.

2. The Committee examined and scrutinized the suggestions/objections furnished by theGoa Legislators’ Forum/Advocates and Public.

3. The Committee forwarded the suggestions/objections given by the Goa Legislators’ Forum//Public and Advocates to the Law Department and to the Drafting Committee for their expertcomments. The minutes of the Select Committee meeting held on 12-9-2008, 10-1-2009,23-6-2009, 6-7-2009, 10-12-2009, 13-1-2010, 30-06-2010 & 06-07-2010 may be seen atAppendix - I to VIII.

4. The draft Report was considered and adopted by the Committee in the meeting held on16th July, 2010. The minutes of the same may be seen at Appendix - IX.

5. The Committee would like to place on record its deep appreciation of the hard work doneby the Secretary of the Goa Legislative Assembly, Shri J. N. Braganza, Smt. Ligia Godinho,Under Secretary, Shri J. C. Pereira, Section Officer, Smt. Seema P. Kakodkar, Assistant, Shri V. P.Shetye, Ex-Law Secretary and Officers of the Government of Goa in assisting the Committee todischarge its work in an efficient manner.

Porvorim-Goa. SHRI FRANCIS D’SOUZA

16th July, 2010. CHAIRMAN

REPORT

During the Fourth Legislative Assembly, on 14-1-2005, Bill No. 5 of 2005 - The Goa Succession,Special Notaries and Inventory Proceeding Bill, 2005 was introduced in the House and laterreferred to the Select Committee. The following Members were nominated on the said Committee:

1. Shri Francis D’Souza…….....ChairmanMinister for Law

2. Shri P. R. Rane………….…....MemberLeader of Opposition

3. Dr. Wilfred D’Souza……....Member

4. Shri Rajendra Arlekar……..Member

5. Shri Laxmikant Parsekar….Member

2. On dissolution of the House the above Bill lapsed. However, the suggestions received fromthe Public/Advocates were carried forward.



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3. During the Fifth Session of the Fifth Legislative Assembly, on 29 August, 2008, the Hon’bleChief Minister again introduced Bill No. 36 of 2008 ‘The Goa Succession, Special Notaries andInventory Proceeding Bill, 2008’ and on the same day moved a motion to refer the Bill to theSelect Committee. The members of the Select Committee on the said Bill were appointed by theHouse under Rule 223 of Rules of Procedure and Conduct of Business of Goa Legislative Assemblywith instructions to report within 3 months, from the date of prorogation of the Fifth Session ofthe Fifth Legislative Assembly. The following Members were nominated on the said Committee:

1. Shri Nilkanth Halarnkar……Chairman

2. Smt. Victoria Fernandes…... Member

3. Shri Francis D’Souza…….... Member

4. Shri Damodar Naik…….….. Member

5. Shri Deepak Dhavalikar….. Member

6. Shri Aleixo R. Lourenco…. Member

7. Shri Dayanand Sopte…….. Member

(Shri Nilkanth Halarnkar, Chairman, being inducted as Minister on 08-06-2010, the HonourableSpeaker authorized/nominated Shri Francis D’Souza, MLA, one of the member of the Committeeto act as the Chairman of the Select Committee).

4. The Committee during its meeting held on 09-09-2008 decided to place the text of the Billon the Legislature Secretariat website and gave wide publicity, to examine all the suggestions//objections received on a similar Bill introduced in the House in 2005 but lapsed and to invitethe North & South Goa Districts Advocates Associations/Public for eliciting their views on theBill. Accordingly, this Secretariat received suggestions/objections from Goa Legislators’ Forum//North & South Goa Districts Advocates Associations and the Public.

5. The Committee which met on 10-01-2009 heard the views of the Advocates Association//Public on the suggestions/objections. An English translated copy of the Family & SuccessionLaw of the Portuguese Civil Code of 1867 – A 21st Century approach received from LawDepartment was distributed to the Members of the Legislative Assembly. The Bill No. 36 of2008, The Goa Succession, Special Notaries and Inventory Proceeding Bill, 2008 and thetranslation were also made available on the website www.goalegislature.gov.in .

6. During the course of time three sittings of the Select Committee were held on 12-9-2008,10-1-2009 and 23-6-2009 but it could not present its report during the above period.

7. The time allotted by the House was not sufficient and since the House was not in session,Hon. Speaker who is empowered under the Rule extended the time given to the Committee forpresentation of its report by another one month and thereafter time was once again extendedby the House on 22-07-2009.

8. The Committee met on 9-9-2008, 12-9-2008, 7-10-2008, 10-1-2009, 23-6-2009, 29-6-2009,6-7-2009, 14-7-2009, 7-9-2009, 19-11-2009, 10-12-2009, 23-12-2009, 13-01-2010, 20-01-2010,09-02-2010, 15-02-2010, 05-03-2010, 17-03-2010, 30-06-2010, 06-07-2010, 12-07-2010 & on16-07-2010 adopted the draft report.

9. The comments of the Law Department on suggestions/objections were received by theCommittee on 14-07-2009. The Committee in its meeting held on 14-07-2009 had directed the


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Law Department to forward the suggestions/objections received from Advocates/Forum /Publicto the Drafting Committee for their expert comments on the suggestions.

10. This Secretariat received the comments from the Drafting Committee and this Committeetook cognizance of the comments received from Drafting Committee. After taking intoconsideration the suggestions/objections received from the Advocates/Forum/Public and viewsthereon given by the Drafting Committee as also by the comments given by the Law Department,this Committee is of the opinion that except for the following recommendations which thisCommittee makes by way of amendments to the Bill, remaining suggestions/objections receivedfrom the Public/Advocates/Forum do not merit any change in the Bill after having consideredthe comments given by the Drafting Committee and those given by the Law Department. ThisCommittee has recommended the amendments to the original Bill as follows:—

Clause 1(2) – line 16 – after the word ‘It’ insert “shall” “and delete ‘s’ to the word extends”;

Clause 1(4)(a) – line 22 – after the words ‘force in’ add “erstwhile Portuguese regime over”.

Clause 1(4)(a) – line 2 – after the word ‘Military’ delete the word ‘Government’ and add

“Governor”;

Clause 1 (4)(g) – line 7 – after the words ‘provided that’ “a” may be substituted with the

word “such”;

Clause 1(4) (g)(i) – line 10 – substitute ‘his’ with the word “he” and on line 12 – after the word

‘Government’ add “of India”;

Clause 1 (4)(g)(ii) – line 13 – delete ‘his’ and substitute “he”;

Clause 2 (b) – line 29 – after the word ‘context’ delete ‘includes liabilities’ and substitute

“liabilities are not included within the purview of assets”;

Clause 2(k) – line 7 – after the word ‘by’ delete ‘a’ and substitute “the”;

Clause 2 (v) – line 16 – delete ‘living’ and substitute “alive”.

Clause 3 – line 22 – delete ‘called’ and substitute “known”.

Clause 8(2) (c) – line 6 – add ‘a’ before “permanent”.

Clause 8(3) – line 16 – substitute ‘374’ by “373”.

Clause 9(2)(a) – line 27 – delete “comma not”.

Clause 14 – line 11 & 12 – delete ‘367 & 368’ and substitute “366 & 367”.

Clause 19 – line 15 – after the word ‘holder has’ delete ‘the’ and substitute “a”.

Clause 21 – may be deleted.

Clause 24 – line 13 – delete ‘the’ and substitute “an”.

Clause 34 – line 7 – delete ‘the’ and substitute “an”.

Clause 39(1) – line 7 – after the word may add ‘comma’ and after the word unless add

“comma -” and delete “:-”

Clause 45 (3) – line 31 – delete ‘State’ and substitute “Estate”.

Clause 44 (6) – line 15 – before the word ‘acceptance’ add “the”.

Clause 46(1) – line 26 – before the word ‘expanses’ add “other”.

Clause 46 (3) – line 1 – delete ‘towards the payment of’ and substitute “to pay”.

Clause 49(3) – line 3 – after the words ‘maintenance or’ add “lifetime” and after the word

‘pension’ add “annuity”.

Clause 50 – line 8 – delete ‘duties’ and substitute “obligations”.

Clause 54 – line 2 – delete ‘53’ and substitute “52”.




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Clause 55 – line 15 & 16 – for the word ‘share’ “s” may be added.

Clause 56 – line 15 & 16 – add “s” to the word “share”.

Clause 69(c) – line 4 – delete ‘450’ and substitute “449”.


Clause 82 – line 5 – for the word ‘cannot’ substitute “shall not”.

Clause 82 – line 6 – before the word ‘inheritance’ add “any”.


Clause 107 – line 29 – delete ‘114 & 115’ and substitute “113 & 114”.


Clause 113 – line 4 – for the word ‘among’ the word “amongst” may be substituted.



Clause 119 – line 14 & 18 – delete ‘legitime’ and substitute “legitimate”.

Clause 123 – line 19 – after the word ‘considered’ “as” may be added.

Clause 141 (2) – line 27 – delete ‘111’ and substitute “110”.



Clause 185 – line 21 – delete (.-) and add (-) after commission.

Clause 197(1) – line 22 – insert “It is open to the testator to annex a plan of his estate to the

will” after the words “his death”.


Clause 242 – line 12 – delete ‘345’ and substitute “341, 342, 343 and 344”.

Clause 243(b) – line 24 – delete ‘241’ and substitute “239 and” before 240.


Clause 262 – line 18 – for the word ‘minor’ add “s”.

Clause 262 – line 23 – after the word ‘appointed’ add “as an”.


Clause 273(3) – line 30 – delete ‘270’ and substitute “269”.



Clause 295 (d) – line 3 – delete ‘the’ after the word ‘willing’ and insert “to”.

Clause 300 – line 12 – after the word ‘directed’ insert “to” and after ‘special Notary’ insert

“comma”.

Clause 309 – line 5 – for the word ‘experienced’ may be read as “experience”.

Clause 309 – line 7 – after the word ‘him’ add “(comma) , as the case may be”.

Clause 311 – line 25 – after the word ‘him’ add “(comma), as the case may be”.


Clause 327 – line 6 – for the word ‘signature’ add “s”.

Clause 328 – line 28 – after the word ‘the’ delete “special”.

Clause 335(1) – line 3 – delete ‘a’ and substitute “the”.

Clause 335(4) – line 3 – delete ‘325 & 326’ and substitute “324 and 325”.

Clause 335(5) – line 5 – after the word ‘witnesses’ insert “comma”.

Clause 335(11) – line 10 – for the word ‘record’ add “s”.

Clause 336 – line 18 – after the word ‘with’ insert “comma”.


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Clause 338 – line 28 – after ‘closed’ insert “comma”.

Clause 338 – line 31 – after ‘year’ insert “comma” and after ‘when’ delete “comma”.


Clause 345 – line 9 – before the word ‘Special Notary’ insert “the”.

Clause 347(12) – line 22 – before the word ‘notice’ “a” may be added.




Clause 349(a) – line 30 – delete ‘348’ and substitute “347”.

Clause 349(b) – line 2 – delete ‘348’ and substitute “347”.

Clause 349(b) – line 5 – delete ‘348’ and substitute “347”.

Clause 349(b) – line 8 – before section ‘325’ and “324 and” and delete ‘and 326’.

Clause 349 – line 30 & 31 – delete ‘pay damages’ and substitute “disciplinary proceeding”.

Clause 349(2) – line 1 – delete “A” and substitute “The” and on the same line delete ‘pay

damages’ and substitute “disciplinary proceedings”.

Clause 350(3) – may be deleted.

Clause 351 – line 15 – delete ‘a’ and substitute “the”.



Clause 373(3) – line 25 – for the word ‘among’ “st” may be inserted.

Clause 380 – line 29 – for the word ‘expense’ add “s”.



Clause 390 – line 3 – after ‘furnishing’ add “a”.

Clause 393 – line 10 – before ‘The family council shall’ add “(1)”.

Clause 393 – line 15 – before the words ‘The members’ insert “(2)”.

Clause 393 – line 21 – before the words ‘The family council’ insert “(3)”.

Clause 393 – line 26- before the words ‘Where there’ insert “(4)”.






Clause 418 – line 2 & 14 – after the word ‘major’ insert “in”.

Clause 420(8) – line 3 &4 – for ‘417 & 419’ add “416 & 418”.

Clause 422(3) – line 4 – before the word ‘where’ add “(4)”.

Clause 427(5) – line 14 – delete the words ‘of this’ and substitute by “herein contained ”.

Clause 428(3)(d) – line 30 – delete ‘has’ and substitute “his”.



Clause 435(1) – line 20 – before the word ‘427’ add “426” and after the word ‘427’ insert

“and 428” and delete ‘and 429’.

Clause 435 (2) – line 27 – after ‘section’ insert “s” and delete ‘427 & 428’ and substitute “426

& 427”.



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Clause 435 (2) – line 28 – delete ‘427 to 429’ and substitute “426 to 428”.


Clause 439(2)(c) – line 31 – delete ‘112 to 122’ and substitute “111 to 121”.


(i) There was a suggestion that the words “not conceived” appearing in Clause 9 (2)(a) maybe deleted. The Law Department in their comments opined that those words may be deleted.The Committee on careful examination is of the opinion that the word “not”, appearing in betweenthe words “Those” and “conceived” may be deleted so as to give proper meaning to thesub-clause (2)(a) of Clause 9.

(ii) Delete the clause 21.– ‘Period of limitation to institute Inventory Proceeding’ fromChapter III.

There was a suggestion that the period of limitation of 30 years prescribed in Clause 21,Chapter III to institute inventory proceeding, may be deleted as this is likely to work hardships,specially in respect of Goans who are settled either abroad or are living abroad. On carefulexamination, this Committee is of the opinion that in fact if any period of limitation is prescribedfor instituting the Inventory Proceedings, it is likely to affect persons of Goan origin who areeither settled abroad or are living abroad as, when they return to their native place to put theirmatters of property in order, they will face hardships. The Committee recommends that Clause21 of the Bill which prescribes for the period of limitation may be deleted.

(iii) In clause 350 (1) & (2 ) the words “pay damages” may be substituted by words“disciplinary proceedings”.

There was a suggestion that the words “pay damages” appearing in Clause 350 is likely tothe work hardships to the Special Notaries who are Government Servants and therefore thewords “pay damages” should be substituted by the words “disciplinary proceedings”. TheCommittee is in agreement that the words “pay damages” may work hardships to Special Notarieswho are Government Servants, and therefore the Committee accepts the suggestion thatinstead of the words “pay damages” appearing in Clause 350 (1) & (2), the words “disciplinaryproceedings” be substituted.

Now, the said clause 350 has been amended to the extent that the words “pay damages”have been substituted with the words “disciplinary proceedings”, due to this amendment,provisions in the said sub-clause (3) have been redundant. So clause 350(3) has been deleted.

(iv) After deletion of Clause 21, which refers to the period of limitation, the remaining clausesare to be re-numbered.”

11. The Select Committee in its meeting held on 05-03-2010 directed the Law Department tosubmit a draft copy of the corrected Bill (As reported by the Select Committee) after carryingout the amendments in the Bill under examination. On 17-03-2010 the draft copy of the correctedBill submitted by the Law Department was circulated amongst the Members for perusal.

12. In it’s meeting held on 06-07-2010, Shri Aleixo Reginaldo Lourenco, Member of theCommittee noticed some more typographical errors in the corrected Bill submitted by the LawDepartment and suggested the following further amendments to be carried out in the CorrectedBill:


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- Section 1(4) (g) add, after the word such “a” person.- Section 1(4)(g)(i) substitute “he” by “his” residing (at 2 places).- Section 3 substitute “who is known to succeed” by “who is called to succeed to” or

“who is called to the succession of”- Section 51 Heading “its” and not “it’s”.- Section 78 Head should be “brother, sisters” also in line 4 “brothers, sisters”.- Section 105 line 3 “donor” and not donors.- Section 128 add line 2 – “or sisters”.- Section 166 Heading substitute ‘legacy’ by “legatee”.- Section 181 line 3 “fide” and not fidei.- Section 196 – delete “It is open to the testator to annex a plan of his estate to the Will.”

makes no sense vide Section 329.- Section 215(2) add ‘interpretations’ and delete “applications”. (at 2 places).- Section 216 Heading insert “public” policy.- Section 222(2) add “s” to “collateral” (at 2 places).- Section 241 ‘sub district’ to be corrected by “Sub-district”- Chapter XIII In the heading colon or stop to insert after the word inheritance.- Section 249 line 1 after ‘inventory is instituted’ add “consequent upon divorce, separation

or annulment of marriage”.- Section 284 to add hyphen for “pre-emption”- Part III page 33 in the heading to delete “the” The Special Notaries.- Chapter XVI delete “the” special Notaries.- Section 296 Heading “Sub-District” capital.- Section 297 In the heading delete “the”.- Section 299 substitute “the” by “any Special Notary” 3rd and 5th line.- Section 303 delete “the” in second line.- Section 305 Add “s” to “instrument”.- Section 314 (3) line 2 delete “Code” and substitute “Act”. In line 3 delete the word “the”

and replace by “any” .- Section 324 (1) (v) after the word knowledge add the word “or” (viii) after the word ‘to

sign’ add the word “or” and (ix) delete “s” from documents.- Section 324 (2) insert “or certified copy thereof” after the words who shall place them.- Section 326(4) “and” not “And”.- Section 337 after the word ‘closed’ to add “in a cover”.- Section 346 (7) it is “1816” and not 1860.- Section 347 (1)(ii) delete “hour” and to add “date” at two places.- Section 350(3) to be deleted as directed by the Chairman of the Committee.- Section 365 delete “the” from the Special Notaries (1st para).- Section 433 (1) delete the commas after the words ‘return’ ‘the excess’ and ‘the legatee

shall not’.- In the statement of objects and reasons:

1st para 6th line Law No. 2049, Decree No. 26 118 dated 24-11-1935.2nd para 1st line All this became ‘laws’ to delete capital ‘L’ and 2nd line “(Administration)”‘A’ capital letter.In 4th para 1st line “A pressing” to replace small ‘p’ for pressing.In the last para capital letter to replace for “Administration” and State of Goa ‘S’ to replacecapital.”

13. The Committee examined the Bill thread bare and directed the Law Department toincorporate the amendments annexed to the Report and correct the typographical errors inthe Bill No. 36 of 2008 – The Goa Succession, Special Notaries & Inventory Proceeding Bill, 2008and print the Bill “As reported by the Select Committee.”

14. The Committee therefore recommends that the Bill may be considered and passed withthe proposed amendments pointed out in this Report.



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ANNEXURE - I

PROPOSED AMENDMENTS TO THE BILL No. 36 OF 2008 — THE GOA SUCCESSION,SPECIAL NOTARIES AND INVENTORY PROCEEDING BILL, 2008

In the index, Chapter III, Clause 21 may be deleted and the remaining clauses may berenumbered.

Clause 1(2) – line 16 – after the word ‘It’ insert “shall” and delete ‘s’ to the word “extend”;Clause 1(4)(a) – line 22 – after the words ‘force in’ add “erstwhile Portuguese regime over”.Clause 1(4)(a) – line 2 – after the word ‘Military’ delete the word ‘Government’ and add

“Governor”;Clause 1(4) (g) (i) – line 12 – after the word ‘Government add “of India”;Clause 1 (4)(g)(ii) – line 13 – delete ‘his’ and substitute “he”;Clause 2 (b) – line 29 – after the word ‘context’ add ‘semi-colon’ and after ‘and’ delete ‘includes

liabilities’ and substitute “liabilities are not included within the purview of assets”;Clause 2(k) – line 7 – after the word ‘by’ delete ‘a’ and substitute “the”;Clause 2 (v) – line 16 – delete ‘living’ and substitute “alive”.Clause 8(2) (c) – line 6 – add “a” before ‘permanent’.Clause 8(3) – line 16 – substitute ‘374’ by “373”.Clause 9(2)(a) – line 27 – delete “comma not”.Clause 10(1) (b) – line 15 – for the word ‘its’ substitute by “it’s.”Clause 14 – line 11 & 12 – delete ‘367 & 368’ and substitute “366 & 367”.Clause 19 – line 15 – after the word ‘holder has’ delete ‘the’ and substitute “a”.Clause 21 – may be deleted.Clause 24 – line 13 – delete ‘the’ and substitute “an”.Clause 30(3) – line 18 – for the word ‘its’ substitute by “it’s.”Clause 34 – line 7 – delete ‘the’ and substitute “an”.Clause 36(2) – line 25 – for the word ‘its’ substitute by “it’s.”Clause 36 (2) – line 27 – after Notary insert ‘comma’.Clause 39(1) – line 7 – after the word may add ‘comma’ and after the word unless add

“comma -” and delete “:-”Clause 45 (3) – line 31– delete ‘State’ and substitute “Estate”.Clause 44 (6) – line 15 – before the word ‘acceptance’ add “The”.Clause 46(1) – line 26 – before the word ‘expenses’ add “other”.Clause 49(3) – line 3 – after the words ‘maintenance or’ add “lifetime” and after the word

‘pension’ add “annuity”.Clause 50 – line 8 – delete ‘duties’ and substitute “obligations”.Clause 51 – line 29 – delete ‘its’ and substitute “it’s”.Clause 53 (i)(ii) – line 10 – delete ‘73’ and substitute by “72”.Clause 54 – line 2 – delete ‘53’ and substitute “52”.Clause 55 – line 9 – delete ‘64’ and substitute “63”.Clause 55 – line 15 & 16 – for the word ‘share’ “s” may be added.Clause 56 – line 15 & 16 – add “s” to the word “share”.Clause 69(c) – line 4 – delete ‘450’ and substitute “449”.Clause 79 – heading after ‘brother’ add ‘comma sisters’ and line 26 – add ‘comma sisters’.Clause 79 – line 24 – delete ‘53’ and substitute “52”.Clause 82 – line 5 – for the word ‘cannot’ substitute “shall not” .Clause 82 – line 6 – before the word ‘inheritance’ add “any”.Clause 82 – line 7 – delete ‘its’ and substitute by “it’s”.Clause 101 – line 23 – after properties add ‘semi colon’.


688

Clause 101 – line 27 – delete ‘428’ and substitute “427”.Clause 106 – line 22 – delete ‘donors’ and substitute “donor”.Clause 107 – line 29 – delete ‘114 & 115’ and substitute “113 & 114”.Clause 111 – line 29 – delete ‘90’ and substitute “89”.Clause 113 – line 4 – for the word ‘among’ the word “amongst” may be substituted.Clause 116 – line 20 – delete ‘100’ and substitute “99”.Clause 117 – line 24 – delete ‘100’ and substitute “99”.Clause 119 – line 14 & 18 – delete ‘legitime’ and substitute “legitimate”.Clause 123 – line 19 – after the word ‘considered’ “as” may be added.Clause 129 – heading and line 23 – after ‘brother’ add “comma sisters”.Clause 141 (2) – line 27 – delete ‘111’ and substitute “110”.Clause 167 – heading substitute ‘legacy’ by “legatee”.Clause 167 – line 7 – delete ‘135’ and substitute “134”.Clause 170 – line 28 – after him insert “full stop”.Clause 178 – line 31 – delete ‘177’ and substitute “176”.Clause 185 – line 21 – delete (.-) and add (-) after commission.Clause 215 – line 14 – delete ‘141’ and substitute “140”.Clause 215(2) – line 23 and 24 – delete ‘applications’ and add “interpretations”.Clause 217 – heading insert “public” before ‘policy’.Clause 223 – line 3 & 8 – add ‘s’ to “collateral”.Clause 241 – line 10 – ‘sub district’ to be corrected as “Sub-district”.Clause 242 – line 12 – delete ‘345’ and substitute “341, 342, 343 and 344”.Clause 243(b) – line 24 – delete ‘241’ and substitute “239 and” before 240.Clause 249 – line 15 – delete ‘248’ and substitute “247”.Clause 250 – line 25 – after ‘inventory is instituted’ add “consequent upon divorce, separation

or annulment of marriage”.Clause 262 – line 18 – for the word ‘minor’ add “s”.Clause 262 – line 23 – after the word appointed add “as an”.Clause 264 – line 12 – delete ‘374’ and substitute “373”.Clause 273(3) – line 30 – delete ‘270’ and substitute “269”.Clause 279 – line 13 – delete ‘385’ and substitute “ 384”.Clause 286 – line 8 – delete ‘397’ and substitute“396”.Clause 295 (d) – line 3 – delete ‘the’ after the word willing and insert “to”.Clause 300 – line 9 & 12 – delete ‘a’ and substitute “the”.Clause 300 – line 12 – after the word ‘directed’ insert “to” and after ‘special Notary’ insert

“comma”.Clause 304 – line 5 – ‘experienced’ be substituted as “experience”.Clause 306 – line 15 – add ‘State’ before the Government and add ‘s’ to ‘instrument’.Clause 309(2) – line 7 – after the word ‘him’ add “(comma), as the case may be”.Clause 310 – line 8 – add ‘s’ to ‘clause’.Clause 311 – line 25 – after the word ‘him’ add “(comma), as the case may be”.Clause 314 – line 10 – delete 353 and substitute “352”.Clause 315 – line 33 – delete ‘Code’ and substitute “Act” and add ‘any’ after “or”.Clause 325(1)(v) – line 27 – after ‘knowledge’ delete ‘comma’ and add “or”. (vii) after ‘sign’

add “or” and (ix) delete ‘s’ from “documents”.Clause 325(2) – line 6 – after the word ‘place them’ insert “or certified copy thereof”.Clause 327(4) – line 21 correct as ‘and’ not “And”.Clause 327 – line 6 – for the word ‘signature’ add “s”.Clause 328 – line 28 – after the word ‘the’ delete “special”.Clause 335(1) – line 3 – delete ‘a’ and substitute “the”.



689

Clause 335(4) – line 3 – delete ‘325 & 326’ and substitute “324 and 325”.Clause 335(5) – line 5 – after the word ‘witnesses’ insert “comma”.Clause 335(11) – line 10 – for the word ‘record’ add “s”.Clause 336 – line 18 – after the word ‘with’ insert “comma”.Clause 338 – line 28 – after ‘closed’ insert “comma” and add ‘in a cover’..Clause 338 – line 31 – after ‘year’ insert “comma” and after ‘when’ delete “comma”.Clause 343 – line 20 – delete ‘339’ and substitute “338”.Clause 345 – line 9 – before the word ‘Special Notary’ insert “the”.Clause 347 (7) – line 17 & 18 – delete ‘1860’ after Code and substitute ‘1816 by (45 of 1860).’Clause 348 (1)(ii) – line 7 – delete ‘hour’ and substitute “day”.Clause 347(8) – line 22 – after ‘deceased’ insert ‘comma’.Clause 347 (9) – line 31 – after ‘heir’ insert ‘“comma”.Clause 347 (11) – line 8 – after ‘declaration’ insert “comma”.Clause 347(12) – line 22 – before the word ‘notice’ “a” may be added.Clause 348(3) – line 13 – delete ‘318’ and substitute “317”.Clause 348(3) – line 17 – delete ‘318’ and substitute “317”.Clause 348 – line 22 – after ‘however’ insert “comma”.Clause 349 – line 4 – delete ‘348’ and substitute “347”.Clause 349(a) – line 30 – delete ‘348’ and substitute “347”.Clause 349(b) – line 2 – delete ‘348’ and substitute “347”.Clause 349(b) – line 5 – delete ‘348’ and substitute “347”.Clause 349(b) – line 8 – before section ‘325’ and “324 and” and delete ‘and 326’.Clause 349 (c)(iii) – line 26 – after ‘pay’ insert “comma”.Clause 349 – line 30 & 31 – delete ‘pay damages’ and substitute “disciplinary proceeding”.Clause 349(2) – line 1 – delete “A” and substitute “The” and on the same line delete ‘pay

damages’ and substitute “disciplinary proceedings”.Clause 350(3) – may be deleted.Clause 351 – line 15 – delete ‘a’ and substitute “the”.Clause 354 – line 25 – delete ‘353’ and substitute “352”.Clause 362 – line 9 – insert ‘comma’ after (45 of 1860).Clause 363(b) – line 20 – insert ‘comma’ after ‘Act’.Clause 363 – line 20 – delete (e).Clause 366 – line 17 after (16 of 1908) insert ‘comma’.Clause 368 – line 21 – delete ‘367’ and substitute “366”.Clause 373(3) – line 25 – for the word ‘among’ “st” may be inserted.Clause 374 – line 5 for sub-clause ‘3’ add ‘bracket’.Clause 380 – line 29 – for the word ‘expense’ add “s”.Clause 380 – line 31 – delete ‘253’ and substitute “252”.Clause 385 (3) – line 16 – delete ‘377’ and substitute “376”.Clause 390 (4) – line 3 – after ‘furnishing’ add “a”.Clause 393 – line 10 – before ‘The family council shall’ add “(1)”.Clause 393 – line 15 – before the words ‘The members’ insert “(2)”.Clause 393 – line 21 – before the words ‘The family council’ insert “(3)”.Clause 393 – line 26 – before the words ‘Where there’ insert “(4)”.Clause 394 (4) – line 19 – delete ‘396’ and substitute “395”.Clause 394(5) – line 24 – delete ‘396’ and substitute “395”.Clause 397(1) – line 28 – delete ‘399’ and substitute “398”.Clause 401 (2) – line 18 – delete ‘372’ and substitute “371”.Clause 402 – line 6 – delete ‘400’ and substitute “399”.Clause 418 – line 2 & 14 – after the word ‘major’ insert “in”.


690

Clause 420(8) – line 3 & 4 – for ‘417 & 419’ add “416 & 418”.Clause 422(3) – line 4 – before the word ‘where’ add “(4)”.Clause 427(5) – line 14 – delete the words ‘of this’ substitute by “here in contained ”.Clause 428(3)(d) – line 30 – delete ‘has’ and substitute “his”.Clause 431(1) – line 29 – after ‘leaver’ add “comma”.Clause 433 – line 14 – delete ‘429’ and substitute “428”.Clause 434 (1) – line 2 – delete the ‘commas’ after the words ‘return’ ‘the excess’ and ‘the

legatee shall not’.Clause 434(2) – line 13 – delete ‘428’ and substitute “427”.Clause 435(1) – line 20 – before the word ‘427’ add “426” and after the word ‘427’ insert

“and 428” and delete “and 429”.Clause 435 (2) – line 27 – after ‘section’ insert “s” and delete ‘427 & 428’ and substitute “426

& 427”.Clause 435 (2) – line 28 – delete ‘427 to 429’ and substitute “426 to 428”.Clause 438 – line 3 – delete ‘437’ and substitute “436”.Clause 439(2)(c) – line 31 – delete ‘112 to 122’ and substitute “111 to 121”.Clause 445 – line 8 – after ‘will’ insert “comma”.Clause 446 – line 18 – after ‘maintained’ insert “comma”.Clause 448 (B) (3) – line 11 – insert “comma” after ‘document’.Clause 450 – line 7 – delete ‘436’ and substitute “435”.Clause 451(2) – line 13 – insert “comma” after ‘law’.Clause 457(3) – line 3 – insert “comma” after ‘recorded’.Clause 460(3) – line 31 – insert “comma” after ‘Act’.

- In the statement of objects and reasons:

1st para 6th line Law No. 2049, Decree No. 26 118 dated 24-11-1935.

2nd para 1st line All this became ‘laws’ to delete capital ‘L’ and 2nd line “(Administration)”‘A’ capital letter.

In 4th para 1st line “A pressing” to replace small ‘p’ for pressing.

Last para capital letter to replace for “Administration” and state of Goa ‘S’ to replace capital.”

APPENDIX - I

MINUTES OF THE MEETING OF SELECT COMMITTEE ON BILL No. 36 OF 2008––THE GOA SUCCESSION, SPECIAL NOTARIES AND INVENTORY PROCEEDING

BILL, 2008 HELD ON 12-09-2008

A meeting of the Select Committee on Bill No. 36 of 2008 – The Goa Succession, SpecialNotaries and Inventory Proceeding Bill, 2008 was held on 12-09-2008 at 11.00 a.m. in the P.A.C.room, Assembly Complex, Porvorim, Goa.

The following were present:–

CHAIRMAN

1. Shri Nilkanth Halarnkar



691

MEMBERS

2. Shri Francis D’Souza3. Shri Damodar Naik4. Shri Deepak Dhavalikar5. Shri Aleixo Reginaldo Lourenco


1. Shri J. N. Braganza, Joint Secretary2. Shri J. C. Pereira, Section Officer

OFFICERS

1. Shri K. S. Singh, Secretary Law2. Shri V. G. Salkar, State Registrar3. Shri P. S. Bodke, District Registrar (South)

The Committee decided to –

(i) invite those members who were responsible then for the drafting of the Legislationfor deliberations during the committee meeting.

(ii) grant three weeks time to Law Department to study the objections/suggestionssubmitted by the Advocates/public for comments.

2. The Committee directed the Law Secretary to appoint a responsible person from LawDepartment to assist the Committee.

3. The Committee decided to sit next at 11.00 a.m. on 7 October, 2008.

The meeting adjourned at 11.45 a.m.

APPENDIX - II


BILL, 2008 HELD ON 10-01-2009

A meeting of the Select Committee on – The Goa Succession, Special Notaries and InventoryProceeding Bill, 2008 was held on 10-01-2009 at 10.00 a.m. in the P.A.C. Room, Assembly Complex,Porvorim, Goa.

The following were present:-

CHAIRMAN



692

MEMBERS

2. Shri Francis D’Souza3. Shri Damodar Naik4. Shri Deepak Dhavalikar5. Shri Reginaldo Lourenco


1. Shri R. Kothandaraman, Secretary2. Shri J. N. Braganza, Joint Secretary3. Shri J. C. Pereira, Section Officer

OFFICERS

1. Shri V. P. Shetye, Secretary Law2. Shri M. B. Kumthekar, State Registrar/Head of Notary3. Shri V. G. Salkar, District Registrar (North)4. Shri P. S. Bodke, District Registrar (South)

2. The Committee heard the views of the Advocates and the members of the public whowere against the Bill.

(i) The Advocates and members of the public suggested to first have the authentictranslation of the entire Civil Code in English and then to set up a full fledged LawCommission to undertake a thorough & comprehensive review and update all the lawsin Goa.

(ii) The Advocates/public suggested not to disturb and split the uniform Civil Code but itshould be maintained and the fresh changes should be incorporated in the existingCivil Code.

3. The Committee decided to sit next after the completion of one month.

4. The Committee thereafter adjourned at 12.55 p.m.

APPENDIX - III


BILL, 2008 HELD ON 23-06-2009

A meeting of the Select Committee on – The Goa Succession, Special Notaries and InventoryProceeding Bill, 2008 was held on 23-06-2009 at 3.30 p.m. in the Committee Room, AssemblyComplex, Porvorim, Goa.


CHAIRMAN

1. Shri Francis D’Souza



693

MEMBERS

2. Smt. Victoria Fernandes3. Shri Deepak Dhavalikar4. Shri Reginaldo Lourenco5. Shri Damodar Naik6. Shri Dayanand Sopte


1. Shri J. N. Braganza, Secretary2. Smt. Ligia Godinho, Under Secretary3. Shri J. C. Pereira, Section Officer

OFFICERS

1. Shri V. P. Shetye, Secretary Law2. Shri V. G. Salkar, State Registrar/Head of Notary

2. In the absence of the Chairman, Shri Francis D’Souza, Member presided over the meeting.

3. Circulation of ‘The Family and Succession Law in the Portuguese Civil Code of 1867 – A21st Century approach’ to the Members of the Committee.

4. The Committee decided to give a week’s time to Shri Herculano Dourado, Secretary ofGoa Legislators’ Forum to submit their suggestions/objections when requested.

5. The Committee decided to sit next at 3.30 p.m. on 29th June, 2009.

7. The Committee meeting adjourned at 4.00 p. m.

APPENDIX - IV


BILL, 2008 HELD ON 06-07-2009

A meeting of the Select Committee on – The Goa Succession, Special Notaries and InventoryProceeding Bill, 2008 was held on 06-07-2009 at 3.30 p. m. in the Committee Room, AssemblyComplex, Porvorim, Goa.


CHAIRMAN


MEMBERS



694

3. Shri Reginaldo Lourenco4. Shri Damodar Naik5. Shri Deepak Dhavalikar



OFFICERS

1. Shri V. P. Shetye, Secretary Law2. Shri V. G. Salkar, State Registrar/Head of Notary

2. The Committee received the recommendations and resolutions from Secretary, GoaLegislators’ Forum on “Portuguese Laws in force in Goa” made by the Legal Fraternityand the Goan Intelligencia.

3. The Committee decided to submit all the suggestions/recommendations/resolutionsreceived from Public/Legal experts to Law Department for their comments and ifrequired to refer the same to the Drafting Committee.

4. The Committee granted a week’s time to Law Department to study the objections//suggestions/recommendations/resolutions forwarded by the Advocates//public and submit their comments.

5. The Committee fixed 2 sittings of the Committee i.e. on 14th and 17th July, 2009at 3.30 p.m.

The Committee meeting then adjourned at 3.50 p.m.

APPENDIX - V


BILL, 2008 HELD ON 10-12-2009

A meeting of the Select Committee on – The Goa Succession, Special Notaries and InventoryProceeding Bill, 2008 was held on 10-12-2009 at 11.00 a.m. in the Committee Room, AssemblyComplex, Porvorim, Goa.


CHAIRMAN




695

MEMBERS

2. Shri Francis D’Souza3. Shri Dayanand Sopte4. Shri Deepak Dhavalikar5. Shri Aleixo Reginaldo Lourenco



GOVERNMENT OFFICERS

1. Shri V. P. Shetye, Ex-Secretary Law2. Shri S. G. Marathe, Joint Secretary, Law3. Shri P. S. Bodke, District Registrar, South Goa

The Committee recommended the following:

Clause 1(2) – line 16 – after the word ‘It’ insert “shall extend”.

Clause 1(4)(a) – line 22 – after the words ‘force in’ add “erstwhile Portuguese regime over”.

Clause 1(4)(a) – line 2 – after the word ‘Military’ delete the word ‘Government’ and add

“Governor”.

Clause 1 (4)(g) – line 7 – after the words ‘provided that’ “a” may be substituted with the

word ‘such’.

Clause 1(4)(g)(i) – line 10 – substitute ‘his’ with the word “he” and on line 12 – after the word

‘Government’ add “of India”.

Clause 1(4)(g)(ii) – line 13 – delete ‘his’ and Substitute “he”.

Clause 2(b) – line 29 – after the word ‘context’ delete ‘includes liabilities’ and substitute

“liabilities are not included within the purview of assets”.

Clause 2(k) – line 7 – after the word ‘by’ delete ‘a’ and substitute “the”.

Clause 2(v) – line 16 – delete ‘living’ and substitute “alive”.

Clause 3 – line 22 – delete ‘called’ and substitute “known”.

Clause 8(2)(c) – line 6 – add “a” before ‘permanent’.

Clause 8(3) – line 16 – substitute ‘374’ by “373”.

Clause 9(2)(a) – line 27 – delete “comma not”.

Clause 14 – line 11 & 12 – delete ‘367 & 368’ and substitute “366 & 367”.

Clause 19 – line 15 – after the word ‘holder has’ delete ‘the’ and substitute “a”.

Clause 21 – may be deleted.

2. After deletion the clauses to be renumbered.

The Committee fixed the next sitting on 23 December, 2009 at 11.00 a.m.

The Committee meeting then adjourned at 11.30 a.m.

(A verbatim proceeding was kept)


696

APPENDIX - VI


BILL, 2008 HELD ON 13-01-2010

A meeting of the Select Committee on – The Goa Succession, Special Notaries and InventoryProceeding Bill, 2008 was held on 13-01-2010 at 3.30 p. m., in the Committee Room, AssemblyComplex, Porvorim, Goa.


CHAIRMAN


MEMBERS

2. Shri Francis D’Souza3. Shri Dayanand Sopte4. Shri Damodar Naik5. Shri Aleixo Reginaldo Lourenco



GOVERNMENT OFFICERS

1. Shri V. K. Jha, Special Secretary (Law)2. Shri V. P. Shetye, Ex-Secretary (Law)3. Shri S. G. Marathe, Joint Secretary (Law)4. Shri P. S. Bodke, District Registrar, South Goa

In its sitting held on 13 January, 2010, the Committee directed the Joint Secretary (Law)to handover the Bill No. 36 of 2008 Goa Succession, Special Notaries and Inventory ProceedingsBill to Mr. P. V. Kadnekar, Special Secretary, Law for correcting the errors in the Bill and furtherrequested to compare the Bill with Bill No. 5 of 2005.

The Committee also directed the Secretary (Legislature) to make available the translatedcopy of Portuguese Civil Code on the Web Site.

The Committee continued the examination and further recommended as under:

Clause 24 – line 13 – delete ‘the’ and substitute “an”.Clause 34 – line 7 – delete ‘the’ and substitute “an”.Clause 39(1) – line 7 - after the word ‘may’ add “comma” and after the word ‘unless’ add

“comma-” and delete“:-”



697

Clause 45(3) – line 31 – delete ‘State’ and substitute “Estate”.Clause 44(6) – line 15 – before the word ‘acceptance’ add “the”.Clause 46(1) – line 26 – before the word ‘expanses’ add “other”.Clause 46(3) – line 1 – delete ‘towards the payment of’ and substitute “to pay”.Clause 49(3) – line 3 – after the words ‘maintenance or’ add “lifetime” and after the word

‘pension’ add “annuity”.Clause 50 – line 8 – delete ‘duties’ and substitute “obligations”.Clause 54 – line 2 – delete ‘53’ and substitute “52”.Clause 55 – line 9 – delete ‘64’ and substitute “63”.Clause 55 – line 15 & 16 – for the word ‘share’ “s” may be added.Clause 56 – line 15 & 16 – add “s” to the word “share”.Clause 69(c) – line 4 – delete ‘450’ and substitute “449”.Clause 79 – line 24 – delete ‘53’ and substitute “52”.Clause 82 – line 5 – for the word ‘cannot’ substitute “shall not”.Clause 82 – line 6 – before the word ‘inheritance’ add “any”.Clause 101 – line 27 – delete ‘428’ and substitute “427”.Clause 107 – line 29 – delete ‘114 & 115’ and substitute “113 & 114”.Clause 111 – line 29 – delete ‘90’ and substitute “89”.Clause 113 – line 4 – for the word ‘among’ the word “amongst” may be substituted.Clause 116 – line 20 – delete ‘100’ and substitute “99”.Clause 117 – line 24 – delete ‘100’ and substitute “99”.Clause 119 – line 14 & 18 – delete ‘legitime’ and substitute “legitimate”.Clause 123 – line 19 – after the word ‘considered’ “as” may be added.Clause 141(2) – line 27 – delete ‘111’ and substitute “110”.Clause 167 – line 7 – delete ‘135’ and substitute “134”.Clause 178 – line 31 – delete ‘177’ and substitute “176”.Clause 185 – line 21 – delete (.-) and add (-) after commission.Clause 197(1) – line 22 – insert “It is open to the testator to annex a plan of his estate to the

will” after the words “his death”.Clause 215 – line 14 – delete ‘141’ and substitute “140”.Clause 242 – line 12 – delete ‘345’ and substitute “341, 342, 343 and 344”.Clause 243(b) – line 24 – delete 241 and substitute “239 and” before ‘240’.Clause 249 – line 15 – delete ‘248’ and substitute “247”.Clause 262 – line 18 – for the word ‘minor’ add “s”.Clause 262 – line 23 – after the word appointed add “as an”.Clause 264 – line 12 – delete ‘374’ and substitute “373”.Clause 273(3) – line 30 – delete ‘270’ and substitute “269”.Clause 279 – line 13 – delete ‘385’ and substitute “384”.Clause 286 – line 8 – delete ‘397’ and substitute “396”.Clause 295(d) – line 3 – delete ‘the’ after the word willing and insert “to”.Clause 300 – line 12 – after the word ‘directed’ insert “to” and after ‘special Notary’

insert “comma”.Clause 309 – line 5 – for the word ‘experienced’ may be read as “experience”.Clause 309 – line 7 – after the word ‘him’ add “(comma), as the case may be”.Clause 311 – line 25 – after the word ‘him’ add “(comma), as the case may be”.Clause 314 – line 10 – delete ‘353’ and substitute “352”.Clause 327 – line 6 – for the word ‘signature’ add “s”.Clause 328 – line 28 – after the word ‘the’ delete “special”.Clause 335(1) – line 3 – delete ‘a’ and substitute “the”.Clause 335(4) – line 3 – delete ‘325 & 326’ and substitute “324 and 325”.


698

Clause 335(5) – line 5 – after the word ‘witnesses’ insert “comma”.Clause 335(11) – line 10 – for the word ‘record’ add “s”.Clause 336 – line 18 – after the word ‘with’ insert “comma”.Clause 338 – line 28 – after ‘closed’ insert “comma”.Clause 338 – line 31 – after ‘year’ insert “comma” and after ‘when’ delete “comma”.Clause 343 – line 20 – delete ‘339’ and substitute “338”.Clause 345 – line 9 – before the word ‘Special Notary’ insert “the”.Clause 347(12) – line 22 – before the word ‘notice’ “a” may be added.Clause 348(3) – line 13 – delete ‘318’ and substitute “317”.Clause 348(3) – line 17 – delete ‘318’ and substitute “317”.Clause 349 – line 4 – delete ‘348’ and substitute “347”.Clause 349(a) – line 30 – delete ‘348’ and substitute “347”.Clause 349(b) – line 2 – delete ‘348’ and substitute “347”.Clause 349(b) – line 5 – delete ‘348’ and substitute “347”.Clause 349(b) – line 8 – before section ‘325’ and “324 and” and delete ‘and 326’.Clause 349 – line 30 & 31 – delete ‘pay damages’ and substitute “disciplinary proceeding”.Clause 349(2) – line 1 – delete ‘A’ and substitute “The” and on the same line delete ‘pay

damages’ and substitute “disciplinary proceedings”.Clause 351 – line 15 – delete ‘a’ and substitute “the”.Clause 354 – line 25 – delete ‘353’ and substitute “352”.Clause 368 – line 21 – delete ‘367’ and substitute “366”.Clause 373(3) – line 25 – for the word ‘among’ “st” may be inserted.Clause 380 – line 29 – for the word ‘expense’ add “s”.Clause 38 – line 31 – delete ‘253’ and substitute “252”.Clause 385 (3) – line 16 – delete ‘377’ and substitute “376”.Clause 390 – line 3 – after ‘furnishing’ add “a”.Clause 393 – line 10 – before ‘The family council shall’ add “(1)”.Clause 393 – line 15 – before the words ‘The members’ insert “(2)”.Clause 393 – line 21 – before the words ‘The family council’ insert “(3)”.Clause 393 – line 26 – before the words ‘Where there’ insert “(4)”.Clause 394(4) – line 19 – delete ‘396’ and substitute “395”.Clause 394(5) – line 24 – delete ‘396’ and substitute “395”.Clause 397(1) – line 28 – delete ‘399’ and substitute “398”.Clause 401(2) – line 18 – delete ‘372’ and substitute “371”.Clause 402 – line 6 – delete ‘400’ and substitute “399”.Clause 418 – line 2 & 14 – after the word ‘major’ insert “in”.Clause 420(8) – line 3 & 4 – for ‘417 & 419’ add “416 & 418”.Clause 422(3) – line 4 – before the word ‘where’ add “(4)”.Clause 427(5) – line 14 – delete the words ‘of this’ and substitute by “here in contained ”.Clause 428(3)(d) – line 30 – delete ‘has’ and substitute “his”.Clause 433 – line 14 – delete ‘429’ and substitute “428”.Clause 434(2) – line 13 – delete ‘428’ and substitute “427”.Clause 435(1) – line 20 – before the word ‘427’ add “426” and after the word ‘427’ insert

“and 428” and delete ‘and 429’.Clause 435(2) – line 27 – after ‘section’ insert “s” and delete ‘427 & 428’ and substitute

“426 & 427”.Clause 435(2) – line 28 – delete ‘427 to 429’ and substitute “426 to 428”.Clause 438 – line 3 – delete ‘437’ and substitute “436”.Clause 439(2)(c) – line 31 – delete ‘112 to 122’ and substitute “111 to 121”.Clause 450 – line 7 – delete ‘436’ and substitute “435”.



699

As regards the clarifications to other suggestions, the Committee decided to go through thedraft Report and meet on 20 January, 2010 at 3.30 p. m.

The Committee meeting then adjourned at 4.21 p. m.


APPENDIX - VII


BILL, 2008 HELD ON 30-06-2010

A meeting of the Select Committee on – The Goa Succession, Special Notaries and InventoryProceeding Bill, 2008 was held on 30-06-2010 at 3.30 p. m., in the PAC Room, AssemblyComplex, Porvorim, Goa.


CHAIRMAN


MEMBER

2. Shri Aleixo Reginaldo Lourenco


1. Shri J. N. Braganza, Secretary2. Smt. Ligia Godinho, Under Secretary

GOVERNMENT OFFICERS

1. Shri S. G. Marathe, Joint Secretary (Law)2. Shri P. S. Bodke, District Registrar (South)

2. The draft Report and the draft corrected Bill was circulated to the Members of the Committeefor perusal.

3. Joint Secretary (Law) informed the Committee that corrected clauses are highlighted inthe corrected Bill.

4. Thereafter the Joint Secretary (Law) informed the Committee that clause 350 - “(3) ASpecial Notaries shall not be liable to pay damages to the persons who have been intentionallyprivy to the act or omission or who at the time the deed was drawn had knowledge of the act oromission and the legal consequences, and did not prevent it, when they could have done so,nor to the heirs or representatives of these persons.”

The said clause 350 has been amended to the extent that the words “pay damages” havebeen substituted with the words “disciplinary proceedings.”

Due to this amendment, provisions in the said sub-clause (3) have become redundant.


700

5. The Chairman directed the Law Department to delete the clause 350(3) which is nowcorrected as clause 349(1 & 2) and further requested to go ahead with printing work.

6. Secretary, Legislature informed the Law Department that the corrected Bill should beprinted ‘as reported by the Select Committee.’

The next meeting was fixed on 6th July, 2010 at 3.30 p. m.



APPENDIX - VIII


BILL, 2008 HELD ON 06-07-2010

A meeting of the Select Committee on – The Goa Succession, Special Notaries and InventoryProceeding Bill, 2008 was held on 06-07-2010 at 3.30 p.m., in the PAC Room, Assembly Complex,Porvorim, Goa.


CHAIRMAN


MEMBERS

2. Shri Aleixo Reginaldo Lourenco3. Shri Damodar Naik4. Shri Deepak Dhavalikar


1. Shri J. N. Braganza, Secretary2. Smt. Ligia Godinho, Under Secretary

GOVERNMENT OFFICERS

1. Shri S. G. Marathe, Joint Secretary (Law)2. Shri P. S. Bodke, District Registrar (South)

The Committee received some more suggestions/typographical errors to the Bill submittedby Shri Aleixo Reginaldo Lourenco, Member of the Committee which are as follows:

- In the title ‘The Succession and Special Notaries…..’ “The” should be removed.- Section 1(1) delete “the” before “Special Notaries.”- Section 1(4)(g) add, after the word such “a” person.



701

- Section 1(4)(g)(i) substitute “he” by “his” residing (at 2 places).- Section 3 substitute “who is known to succeed” by “who is called to succeed to” or

“who is called to the succession of”.- Section 51 Heading “its” and not “it’s”.- Section 78 Head should be “brother, sisters” also in line 4 “brothers, sisters”.- Section 105 line 3 “donor” and not donors.- Section 128 add line 2 – “or sisters”.- Section 166 Heading substitute ‘legacy’ by “legatee”.- Section 181 line 3 “fide” and not fidei.- Section 196 delete the line ‘It is open to the testator to annexe a plan of his estate to the

Will’ makes no sense vide section 329.- Section 215(2) add ‘interpretations’ and delete “applications” (at 2 places).- Section 216 Heading insert “public” policy.- Section 222(2) add “s” to “collateral” (at 2 places).- Section 241 ‘sub district’ to be corrected by “Sub-district”.- Chapter XIII in the heading colon or stop to insert after the word inheritance.- Section 249 line 1 after ‘inventory is instituted’ add “consequent upon divorce, separation

or annulment of marriage”.- Section 284 to add hyphen for “pre-emption”.- Part III page 33 in the heading to delete “the” The Special Notaries.- Chapter XVI delete “the” special Notaries.- Section 296 Heading “Sub-District” capital.- Section 297 in the heading delete “the”.- Section 299 substitute “the” by ‘any Special Notary’ 3rd and 5th line.- Section 303 delete “the” in second line.- Section 305 add ‘s’ to “instrument”.- Section 314(3) line 2 delete ‘Code’ and substitute “Act”. In line 3 delete the word ‘the’

and replace by “any”.- Section 324(1)(v) after the word knowledge add the word “or” (viii) after the word ‘to

sign’ add the word “or” and (ix) delete ‘s’ from documents.- Section 324(2) insert “or certified copy thereof” after the words who shall place them.- Section 326(4) “and” not “And”.- Section 337 after the word ‘closed’ to add “in a cover”.- Section 346(7) it is “1816” and not 1860.- Section 347(1)(ii) delete “hour” and to add “date” at two places.- Section 350(3) to be deleted as directed by the Chairman of the Committee.- Section 365 delete “the” from the Special Notaries.(1st para).- Section 433(1) delete the commas after the words ‘return’ ‘the excess’ and ‘the legatee

shall not’.- In the Statement of Objects and Reasons:

1st para 6th line Law No. 2049, Decree No. 26 118 dated 24-11-1935.

2nd para 1st line All this became ‘laws’ to delete capital ‘L’ and 2nd line “(Administration)”‘A’ capital letter.

In 4th para 1st line “A pressing” to replace small ‘p’ for pressing.

Page 72 last para capital letter to replace for “Administration” and State of Goa ‘S’ toreplace capital.


702

After a thorough examination, the Committee agreed for incorporating the amendments//typographical errors in the Bill and directed the Law Department to incorporate the correctionsin the Bill and go ahead in printing the Bill, “as reported by the Select Committee.”

The next meeting was fixed on 12th July, 2010 at 3.30 p. m.



APPENDIX - IX


BILL, 2008 HELD ON 16-07-2010

A meeting of the Select Committee on – The Goa Succession, Special Notaries and InventoryProceeding Bill, 2008 was held on 16-07-2010 at 12.30 p. m., in the Committee Room, AssemblyComplex, Porvorim, Goa.


CHAIRMAN


MEMBERS

2. Smt. Victoria Fernandes

3. Shri Aleixo Reginaldo Lourenco

4. Shri Damodar Naik

5. Shri Dayanand Sopte


1. Shri J. N. Braganza, Secretary

2. Smt. Ligia Godinho, Under Secretary

3. The Committee considered and adopted the draft Report on ‘The Goa Succession, SpecialNotaries and Inventory Proceeding Bill, 2008.’

4. The meeting then adjourned.

(A digital and verbatim record of the proceedings was kept).



703

The Goa Succession, Special Notariesand Inventory Proceeding Bill, 2008

(Bill No. 36 of 2008)

INDEX

PART I

General Provisions

Sections

1. Short title, extent, commencement andapplication.

2. Definitions.

PART II

Succession

CHAPTER I

Preliminary Provisions

3. Succession.

4. Types of Succession.

5. Types of Successors: heirs and legatees.

6. Inheritance.

7. Simultaneous death of the estate leaver and

the successor.

CHAPTER II

Opening of the Inheritance, Competence to Succeedand Transmission of Ownership and

Possession

8. Opening of the succession.

9. Competence to succeed.

10. Incompetence to succeed by reason of

unworthiness to succeed.

11. Consequences of declaration of unworthiness

to succeed.

12. Re-acquisition of competence to succeed.

13. When the ownership and possession istransmitted.

SectionsCHAPTER III

Right to partition the Inheritance

14. Partition by inventory.

15. Partition by deed.

16. Inheritance is indivisible till partition is

effected.

17. Consequence of transfer of specific asset of

inheritance.

18. Right of co-heir to claim the inheritance in its

entirety.

19. Right to demand partition.

20. Partition of assets of joint family.

CHAPTER IV

Acceptance and Renunciation of the Inheritance

21. Acceptance of inheritance.

22. Devolution of inheritance under different titles.

23. Freedom to accept or renounce.

24. Nullity of restricted acceptance or

renunciation.

25. Capacity to accept or renounce.

26. Acceptance or renunciation by one of the

spouses only.

27. Acceptance of inheritance left to a person

under disability.

28. Acceptance or renunciation of inheritance left

to a deaf and dumb person.

29. Form of acceptance.

30. Gratuitous transfer of inheritance or share

therein.

31. Consequences of court decision declaring a

person to be an heir.

32. Absence of consensus among heirs to accept

or renounce an inheritance.

33. Transmission of right to accept.

34. Indivisibility of renunciation.

35. How renunciation is effected.

36. Consequences of renunciation.

37. Implications of renunciation of disposable

share.

38. When acceptance may be challenged.

39. Subrogation by creditor.

40. Prohibition to renounce.

41. Retroactivity of acceptance or renunciation.

42. Inheritance at abeyance.

43. Temporary management.


704

Sections

44. Notice to accept or renounce the inheritance.

CHAPTER V

Liabilities of the Inheritance

45. Liabilities of the inheritance.46. Order of priorities.47. Liability of the usufructuary.

48. Legacy of maintenance or lifetime pension. 49. Rights and duties of the heirs in respect of the

inheritance.50. Bonafide satisfaction of the legacies.

CHAPTER VI

Legal Succession

51. When legal succession takes place and its

extent.

52. Order of legal succession.

53. Proximity of degree.

54. Succession per capita.

55. Accretion upon renunciation of the

inheritance.

56. Degree and lines of kinship.

57. Direct and collateral line.

58. Types of direct line of kinship.

59. How degrees are counted in the direct line.

60. How degrees are counted in the collateral line.

61. Incapacity to inherit by legal succession.

62. Extent of incapacity.

CHAPTER VII

Right of Representation

63. Right of representation.

64. Representation in the direct line.

65. Representation in the collateral line.

66. Right of the representatives.

67. Joint representatives.

CHAPTER VIII

Order of SuccesssionSuccession of Descendants/Ascendants

68. Succession of children and their descendants.69. When filiation is disputed.70. Succession per capita. 71. Succession per stirpes.

Succession of Ascendants

72. Succession of parents.

Sections

Succession of Ascendants of the Second Degree

73. Succession of grandparents and otherascendants.

74. Division per capita: Ascendants in the samedegree.

75. When ascendants are not in the same degree.

Succession of Brothers, Sisters and theirDescendants

76. Succession of brothers, sisters and theirdescendants.

Succession of Surviving Spouse and of theCollaterals

77. Succession of surviving spouse.78. Collaterals other than brothers, sisters and their

descendants.

Succession of the State

79. Succession of the State.80. Rights and duties of the State.81. Prior Court order.

CHAPTER IX

Preferential Right of the Spouse

82. Preferential right of habitation and use ofsurviving spouse.

CHAPTER X

Mandatory Succession, Collation and Reduction

83. Disposable portion.84. Restriction on transfer by parents or

grandparents.85. Disposition of specific usufruct or lifetime

pension.86. In officious dispositions.87. Right of forced heir to claim reduction.88. Renunciation of right to claim reduction.89. Computation of disposable portion.

Rules Relating to Collation

90. Collation.91. Exemption from collation.92. When is a Gift deemed an advancement of the

legitimate.93. Collation by grandchildren.94. When parents are not bound to collate. 95. Ascendants duty to collate.



705

Sections

96. Spouses of children not bound to collate.

97. Expenses to be collated.

98. Collation of fruits and profits of gifted things.

99. How collation is done.

100. Where the value of the gifted assets exceeds

the value of donee’s share in the inheritance.

101. On payments made.

102. Family arrangement.

103. Gift of community assets.

104. How the shares of co-heirs are to be paid.

105. When the value of the assets gifted exceeds

the legitimate of the done.

106. Where there are several donees.

107. Dispute as regards obligation to collate.

108. Assets which devolve in a preferential manner.

109. Duty to collate is a charge in rem.

Rules for Reduction of a Legacy or Gift

110. Reduction of legacy or gift.

111. Order of reduction.

112. Partial reduction.

113. Reduction of gifts inter vivos.

114. Pro rata reduction.

115. Reduction in respect of movables.

116. Reduction of gifts of immovables.

117. When immovable cannot be divided.

118. When the donee may retain the gifted property.

119. When immovable properties are not in

possession of the donee.

120. When the donee is insolvent.

121. Fruits and profits in the event of reduction.

CHAPTER XI

Testamentary Succession

122. Institution of heir.

123. Liability of the heirs.

124. Liability of the legatee.

125. Apportionment of liabilities where inheritance

is distributed by way of legacies only.

126. Specific sum or thing bequeathed.

127. Institution of heirs collectively.

128. Brothers or sisters generally instituted as heirs.

129. Institution of certain person and his children.

130. Right to be compensated for management of

inheritance distributed by way of legacies.

131. Legacy of a thing subsequently acquired.

132. Legacy of a thing belonging to the heir or

legatee.

Sections

133. Legacy of a thing which belongs only in part

to the testator or to his successors.

134. Restraint on marriage.

135. Condition to reciprocate.

136. Deferred execution of the disposition.

137. Ineffective dispositions.

138. Legacy in the alternative.

139. Indivisibility of the disposition.

140. Supervenience of descendants.

141. Effect of supervenient children predeceasing.

142. Legacy of a pledged thing.

143. Legacy of thing ascertainable at the place

where found.

144. Legacy of debt not fallen due.

145. Legacy made to the creditor of testator.

146. Unconditional legacy.

147. Choice of legacy of a generic thing.

148. Heir’s right to select.

149. Transmission of right to choose.

150. Legacy for maintenance.

151. Legacy of house with things existing in it.

152. Legacy of usufruct.

153. Legacy to minor.

154. Legacy for charitable purposes.

155. Mistake as to object or subject of the

legacy.

156. Delivery of legacy.

157. Duty to carry out the Will.

158. Fruits and income of legacy.

159. Legacy of periodic sums.

160. Expenses for delivery of legacy.

161. Manner and place of delivery.

162. New acquisitions.

163. Legacy of thing burdened with encumbrance

in rem.

164. Lien on immovable assets.

165. Duty of co-heirs to compensate when the

legacy consists of an asset of one co-heir only.

166. Institution of heir or legatee subject to

fulfillment of condition.

167. Conditional legatee.

168. Responsibility of the heir apparent.

169. Reduction of encumbrance attached to

legacy.

Right of Accretion

170. Right of accretion.

171. Exclusion of right of accretion.

172. Effects of accretion.


706

Sections

173. Renunciation of right of accretion.

174. Right to legacy.

Substitutions

175. Common or direct substitution.

176. Pupillary substitution.

177. Quasi pupillary substitution.

178. Properties which may be subject to

substitution.

179. Rights and duties of the substitute.

180. Reciprocal substitution.

181. Fidei commissary substitution.

182. Lapse of fidei-commissum.

183. Nullity of the substitution.

184. Dispositions which are not analogous to

fidei-commissum.

185. Deemed fidei-commissum.

186. Encumbrances in favour of paupers, etc.

187. Irregular fidei- commissum.

188. Applicability to past and future fidei-

-commissum.

Disinheritance

189. Disinheritance.190. Grounds for disinheritance. 191. Effects of disinheritance.192. Burden of proof.193. Failure to mention ground or irrelevant

ground.194. Right to maintenance of the disinherited

heir.195. Period of limitation to challenge disinheri-

tance.

CHAPTER XII

Wills

196. Concept of Will.

197. Will is a personal act.

198. Will dependent upon instruction.

199. Disposition in favour of unnamed relatives.

200. Conditional disposition.

201. Obstruction to fulfillment of condition.

202. Reason contrary to law.

203. Disposition where time for commencement or

cessation of heirship is fixed.

204. Will obtained by coercion, undue influence,

deceit or fraud.

205. Duty of authorities.

206. When expressions are insufficient.

Sections

207. Prohibition imposed by testator to challengehis Will.

208. Joint Wills.209. Revocation of Will. 210. Implied revocation. 211. Effect of Will which has lapsed.212. Restoration of Will.213. When testamentary dispositions lapse.214. Effect of ignorance of existence of

children.215. Interpretation of Wills.216. Objects contrary to law, morality or public

policy.

Who may make a Will and Acquire by Will

217. Capacity to make a Will.

218. Incapacity to make a Will.

219. Restrictions on disposition of community

assets.

220. Restrictions on disposing of specific assets of

the inheritance.

221. Relative incapacity of sick person.

222. Disposition in favour of a person who has

rendered domestic help or care and assistance.

223. Relative incapacity – Disposition in favour of

guardian or manager of assets.

224. Relative incapacity – Disposition by adulterous

spouse.

225. Relative incapacity – Disposition in favour of

the Special Notary.

226. Extent of nullity.

227. Restriction on impairment of mandatory share.

228. Who may receive by Will.

229. Relevant time to determine capacity to acquire

by Will.

230. Consequence of incompetence to acquire by

legal succession.

231. Consequences of refusal to act as executor or

guardian or their removal.

232. Capacity of corporate bodies.

233. Fictitious disposition.

Types of Wills

234. Types of Wills.

235. Public Will.

236. Printed open Will.

237. Closed or sealed Will.

238. Incompetence to make a closed Will.

239. Failure to present the closed Will.



707

Sections

240. Fraudulent removal of Will.241. Where the closed Will is found open. 242. Tampered or torn Will.243. Presumption as to who is responsible.244. Torn Will be found amidst the effects of the

testator. 245. Wills under this Act to become operative upon

death.246. Wills made outside Goa.

CHAPTER XIII

Management of the inheritance: Head ofthe Family

247. To whom the office of Head of the Familybelongs.

248. When the guardian is appointed Head of theFamily.

249. Eldest of the spouses to be the Head of theFamily.

250. Special Head of the Family.251. Duty to initiate the inventory. 252. When half of the income may be distributed.253. Rights and duties of the Head of the Family.254. Head of the Family when there are only

legacies.255. When the Head of the Family seeks exemption

or is removed. 256. Concealment of assets of the inheritance by

the Head of the Family or heir.257. Fraudulent description. 258. Fraudulent concealment of documents.

Executor

259. Executor appointed by the testator.260. Who may be executor.261. Appointment of executor by Court.262. Where the executor declines to accept the

office.

263. Time limit to decline appointment.264. When the executor may resign.265. Office of the executor is gratuitous.266. Impediments to become executor.267. Powers of the executor.268. General duties of the executor.269. Duty to initiate inventory.270. When the testator leaves forced heirs.271. Where the testator does not leave forced heirs.272. Time limit to carry out the Will.273. Joint executors.274. Duty to render accounts.

Sections

275. Office of executor not transferable or heritable. 276. Accretion of remuneration.277. Expenses of the executor.278. When the executor is guilty of deceit or

fraud.

CHAPTER XIV

Partition

279. Effects of partition.

280. Consequences of co-heir and moiety-holderbeing deprived of possession.

281. Limitation for suit for damages.

282. Partition done out of Court. 283. Rescission in case of out of Court partition.

CHAPTER XV

Supplemental Provisions

284. Sale of share in undivided inheritance: right ofpre-emption.

285. Notice to moiety holder or co-heirs.

286. Sham sale.

287. Creation of Easement.

288. Definition of usufruct.

289. Constitution of usufruct.

290. Extinguishment of usufruct.

291. Right of the usufructuary.

292. Determination of usufruct.

293. Emphyteusis.

294. Divisibility of the emphyteusis.

295. Acts contrary to law.

PART III

Special Notaries

CHAPTER XVI

Establishment of District Special Notaries andSpecial Notaries

296. District and Sub-Districts.

297. Special Notaries.298. Offices of the District Special Notary and the

Special Notary.

299. Absence of District Special Notary.

300. Absence of the Special Notary.301. Seal of the District Special Notary and the

Special Notary.

302. State Special Notary.

303. Qualifications.


708

Sections

CHAPTER XVII

Functions of the Special Notary

304. Function of the Special Notary. 305. Status of the Special Notary. 306. Evidentiary value of the documents drawn by

the Special Notary. 307. What instruments are to be drawn only by way

of authentic document.

CHAPTER XVIII

Books, Indices and Fire Proof Boxes

308. Obligation of the State to provide books to theSpecial Notary.

309. Books to be maintained by the Special Notaryand District Special Notary.

310. Requirement of the notarial books. 311. Indexes to be maintained. 312. Maintenance and preservation of books and

other records. 313. Special Notaries to allow inspection of indices

and give certified copies.314. Power of the State Special Notary and District

Special Notary to superintend and control theSpecial Notaries.

CHAPTER XIX

Powers of the District Special Notary andthe Special Notary

315. Powers of the Special Notaries.316. Power to administer oath. 317. Incompetence to act.318. Duty of the Special Notary.319. When the Special Notary shall refuse to

perform the act.320. Refusal to perform an act. 321. Order of the District Special Notary. 322. Suit in case of party being aggrieved by order

of the District Special Notary.

CHAPTER XX

Authentic Instrument in General

323. Who may be witnesses, identifiers andcertifiers.

324. Requisites of authentic documents.325. How instruments are to be recorded.326. Dumb and deaf.

CHAPTER XXI

Public Open Will

327. Identification of the testator and hiscondition.

Sections

328. Place, time and date of the Will. 329. When a plan is attached to the Will.330. When the testator does not know or is unable

to write. 331. When the testator is deaf.332. Formalities to be complied with without break.

CHAPTER XXII

Printed Open Will

333. Printed open Will.

CHAPTER XXIII

Closed Will

334. Presentation of closed Will and approval bythe Special Notary.

335. Record of the approval of the closed Will. 336. Failure to comply with formalities. 337. Delivery of the closed Will.338. Custody of the closed Will and its deposit with

the Special Notary. 339. Who may deposit the Will. 340. Special power of attorney for return of the

Will.

CHAPTER XXIV

Opening of the Closed Will

341. Formalities to open a closed Will.

342. Proceedings on death of the depositor.

343. Book of record.

CHAPTER XXV

Registration of the closed Will after opening

344. Registration of Will. 345. Withdrawal of sealed cover deposited under

the preceding section.

CHAPTER XXVI

Instrument of Declaration of Heirship

346. Declaration of heirship.

CHAPTER XXVII

Void Notarial Acts

347. Notarial acts when void.

CHAPTER XXVIII

Validation of Notarial Acts

348. Validation of notarial acts.



709

Sections

CHAPTER XXIX

Civil Liability of the Special Notary

349. Liability to disciplinary proceedings.350. Insufficiency of stamps.351. Discretion to state the provision and accept a

draft.

CHAPTER XXX

Certified copies

352. Who may apply.

353. To whom certified copy may be delivered.

354. Time limit to issue certified copies.

355. When a reference is made to other documents

in the main instrument.

356. When a reference is made to a drawing or plan

in the main instrument.

357. Manner in which certified copy is to be

issued.

358. When there are interlineations, erasures and

corrections.

CHAPTER XXXI

Fees

359. Fees to be fixed by the State Government.360. Publication of fees.

CHAPTER XXXII

Penalties

361. Penalty for incorrectly recording, endorsing,copying and translating documents withintent to injure.

362. Penalties for making false statements,delivering false copies or translations, falseperomation and abetment.

363. Thing bonafide done or refused in hisofficial capacity by an officer acting underthis Act.

364. Nothing so done is invalidated by defect inappointment or procedure of appointment of

an officer acting under this Act.

CHAPTER XXXIII

Miscellaneous

365. Ex officio powers and acts to be done afteroffice hours.

Sections

PART IV

Inventory Proceeding

CHAPTER XXXIV

Types of Inventory Proceedings

366. Mandatory Inventory. 367. Optional Inventory.368. Inventory upon divorce or separation or

annulment of marriage. 369. Inventory where a party dies after allotment in

inventory proceeding which were finallydisposed of.

370. Inventory upon death of the surviving spouse.

371. Additional partition.372. Inventory in the event of dissolution of joint

family.

CHAPTER XXXV

Jurisdiction

373. Jurisdiction.374. Consolidation of inventories.

CHAPTER XXXVI

Head of the Family

375. Petition. 376. Order of appointment of Head of the Family.377. Inquiry for appointment of Head of the

Family.378. Evidentiary value of the declaration of the

Head of the Family.379. Rights and Duties of the Head of the

Family.380. Concealment of assets by Head of the

Family.381. Consequences of concealment.382. Consequence of giving a list of assets based

on false documents. 383. Duration of office of Head of the Family.384. Removal of the Head of the Family.385. Discharge of the Head of the Family from

holding office.

CHAPTER XXXVII

Hearings

386. Hearing in the inventory proceeding.387. Prosecution of inventory.388. Proceeding in absentia.389. Parties under disability.


710

Sections

390. Discharge of guardian, etc. 391. Discharge or removal of guardian, etc.392. Composition of the family council. 393. Death of moiety holder or heir during the

pendency of the proceeding. 394. Challenge to the maintainability of the

proceeding and other objections.395. Application to be declared as interested party,

legatee or creditor and to be made a party tothe proceeding.

396. Intended sale of a share in an undividedinheritance.

397. Sale of share in the undivided inheritance.398. Order of priority and procedure.

CHAPTER XXXVIII

Initial List of Assets

399. Initial list of assets.400. Objections to the list of assets and other

objections.401. When co-heirs are called upon to give a list of

assets.402. Deletion of assets listed in the preliminary

list.403. Disputes relating to concealment of assets.

CHAPTER XXXIX

Liabilities of the inheritance

404. Payment of debts of inheritance.405. Funeral expenses.406. Redemption of certain encumbrances in

rem.407. Creditor’s claim.408. Debtor’s denial.409. Valuation.410. Evaluation by officer of the Court.

CHAPTER XL

Final list, conference of the parties andpayment of debts

411. Final list.412. Division by metes and bounds. 413. Objection to overvaluation, conference,

application for licitation. 414. Who may decide on behalf of persons under

disability. 415. Conference of the interested parties.416. Debts payable by the inheritance and mode of

payment.

Sections

417. Power of the Court to decide on debts.418. Disagreement on the approval of debts.419. Payment of debts fallen due.

420. When debts are approved by some of theinterested parties only.

421. Resolution on mode of payment of debts. 422. When do legatees decide on the mode of

payment of debts. 423. Insolvency. 424. Emphyteusis. 425. Overvaluation of assets.

CHAPTER XLI

Licitation

426. Licitation of asset which is not susceptible todivision without detriment.

427. Licitation of gifted assets. 428. Licitation of bequeathed assets. 429. When licitation is to be held. 430. Licitation defined. 431. When licitation may be annulled.

CHAPTER XLII

Second valuation

432. Second Valuation.

433. Inofficious legacy.

434. Procedure for second valuation.

435. Proposal on mode of partition should be made.

436. Procedure for filling up the shares of the

parties.

CHAPTER XLIII

Chart of Partition

437. Chart of Partition.

438. Preliminary Chart.

439. Rectification.

440. Sortition.

441. Second and Third chart of partition.

CHAPTER XLIV

Confirmation of partition

442. Confirmation of partition. 443. Costs. 444. Safeguards to be observed when the assets are

delivered before the order of homologationbecomes final.

445. Fresh partition.



711

Sections

CHAPTER XLV

Amendment and rescission of partition

446. Amendment of partition.

447. Suit for amendment of partition.

448. Rescission of partition.

449. Settlement of share of the heir left out in the

inventory.

450. Finality of the decision.

CHAPTER XLVI

Appeals

451. Appeals.

CHAPTER XLVII

Preventive measures

452. Appointment of receiver. 453. Temporary injunction.

CHAPTER XLVIII

Miscellaneous

454. Cause title.

455. Stamp duty payable.

456. Fixation of the amount of costs.

457. Enforcement of order.

458. Summary proceeding.

459. Power to make rules.

460. Repeal and Savings.

__________

The Goa Succession, Special Notaries andInventory Proceeding Bill, 2008

(Bill No. 36 of 2008)

A

BILL

to consolidate and amend the law of intestateand testamentary succession, notarial lawand the laws relating to partition of aninheritance and matters connectedtherewith.

Be it enacted by the Legislative Assemblyof Goa in the Fifty-ninth Year of the Republicof India, as follows:—

PART I

General Provision

1. Short title, extent, commencement andapplication.— (1) This Act may be called theGoa Succession, Special Notaries andInventory Proceeding Act, 2008.

(2) It shall extend to the whole of the Stateof Goa.

(3) It shall come into force on the 90th dayfrom the date of it’s publication in the OfficialGazette.

(4) It shall be applicable to,—

(a) all persons who, prior to the 20th dayof December, 1961, were governed by theprovisions of the Civil Code of 1867 as inforce in erstwhile Portuguese regime overGoa and which continued in force by virtueof sub-section (1) of section 5 of the Goa,Daman and Diu (Administration) Act, 1962(1 of 1962), as adapted by the MilitaryGovernor of Goa, Daman and Diu vide OrderNo. 175/2/MG dated 31st May, 1962;

(b) any person born in Goa of parents whoare governed by the provisions of the CivilCode of 1867 which is at present in force inGoa and which was in force prior to the 20thday of December, 1961;

(c) any person born outside the State ofGoa of parents who were or are governedby the provisions of the said Civil Code of1867, unless such person declares that hedoes not desire to be governed by theprovisions of this Act at any time before theexpiry of three years from the date he attainsmajority or before the expiry of three yearsfrom the date he comes from outside theState of Goa, before the Special Notaryhaving office in the sub-district where suchperson resides;

(d) any person born in Goa of parents who

are governed by the provisions of the

corresponding laws in force in the rest of

India provided that he chooses permanent

residence in the State of Goa and he declares

before the expiry of three years from the


712

date he attains majority that he desires to

be governed by this Act before the Special

Notary having office in the sub-district

where such person resides;

(e) any person born in Goa of parents whoare foreign citizens provided such personsatisfies the requirements of sections 3 and4 of the Citizenship Act, 1955 (Central Act57 of 1955);

(f) any person born in Goa of unknownparents or of unknown nationality;

(g) any person adopted by parents whoare governed by the provisions of the CivilCode of 1867 as in force in Goa or by parentsto whom this Act is applicable:

Provided that such a person shall not bedeemed to have taken up permanentresidence in Goa,—

(i) merely by reason his residing thereon account of his being appointed in theCivil, Military, Naval, Air Force service ofthe Government of India;

(ii) merely on account of he beingappointed by the Government of a foreigncountry as its representative and residingas such in Goa in pursuance of suchappointment nor shall any other personresiding with such representative as partof his family or as servant.

2. Definitions.— In this Act, unless thecontext otherwise requires,—

(a) “absent person” means a person who,without appointing an attorney to managehis properties, has left the place of hisresidence and his whereabouts are notknown and is so adjudged by a competentCourt;

(b) “assets” means properties, movableor immovable, corporeal, whether animateor inanimate, or incorporeal, unlessrepugnant to the context and includesliabilities;

(c) “authentic document” means adocument drawn by a public official or withhis intervention as required by law and suchdocument constitutes proof of the veracityof the acts done by the public official andthe veracity of the facts which haveoccurred in his presence or which he hascertified and was competent to certify,unless it is proved that the document itselfis fabricated or false;

(d) “conferee” means the person, whohas to return the assets gifted to him to themass of the inheritance for the purpose ofcollation;

(e) “deaf and dumb” means a person whois deaf and dumb and is not capable ofmanaging his assets and is so adjudged bya competent court;

(f) “estate leaver” means the person uponwhose death the transmission of his estatetakes place;

(g) “forced heir” means the heir whomthe estate leaver cannot deprive of theportion of his estate reserved to such heirby law, except in cases where thelaw permits the estate leaver to disinherithim;

(h) “head of the family” means the personwho is entrusted with the duty to give thelist of the assets and liabilities of aninheritance and with the management of theinheritance till the finalization of thepartition;

(i) “inofficious Gift or Will” means a Giftor a Will made by the estate leaver whichimpairs the legitime of the forced heir;

(j) “interdict” means a person who isdeclared to be incompetent to manage hisassets by an order of the court;

(k) “inventory proceeding” means aproceeding to partition the inheritance of adeceased person or to obtain a formal orderof allotment of inheritance by the court;

(l) “legal or intestate succession” meansthe succession which takes place byoperation of law;



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(m) “liabilities” include all debts,obligations, burdens and encumbrances;

(n) “matrimonial regime” means a systemof rules which govern the ownership andmanagement of the property of marriedpersons as between themselves andtowards third parties;

(o) “moiety holder” means a spouse whohas a right to moiety; and right to moiety isthe half-share which any of the spouses hasto the common assets of the couple or to thecommunity properties;

(p) “personal representative” includes anatural guardian, a guardian appointed bythe court and a guardian appointed byparties;

(q) “person under disability” means aperson declared by law or by the court asbeing incapable of managing his assets andincludes a minor, insane person, a deaf anddumb and an absent person;

(r) “prescribed” means prescribed byrules;

(s) “prodigal” means a person who ismajor in age but is a habitual spendthrift orhas extravagant habits and is adjudged bya court as being incapable of managing hisassets;

(t) “renunciation or repudiation ofheirship” means the relinquishment of theinheritance made by a person entitled toinherit by succession and to succeed;

(u) “right of accretion” means the right ofthe heirs or legatees to add to their sharesin the inheritance, the share of any co-heiror legatee;

(v) “right of representation” means theright conferred by law upon certainrelatives of a deceased person to succeedto all rights to which such a person wouldhave succeeded, if alive;

(w) “sortition” means the adjudication ofthe lots or the shares to the interested partiesby draw of lots;

(x) “Special Head of the Family” meansthe Head of the Family restricted to certain

assets of inheritance, such as the donee whobrings the gifted assets into the mass of theinheritance and the co-heirs in lawfulpossession of certain assets of theinheritance prior to the opening ofsuccession;

(y) “Special Notary” means a Notary withspecial powers to draw, authenticdocuments such as (a) Wills, (b) record ofprinted open Wills, (c) instruments ofconsent to the Will by the spouse of thetestator, (d) instruments of renunciation ofinheritance, (e) record of approval of theclosed Wills, (f) ante nuptial agreements,(g) Deeds of declaration of heirship,(h) adoption Deeds and (i) such other actswhich the Special Notary is authorized toperform by law;

(z) “to make a record” or “to draw arecord” means to draw up a written accountof an act or a series of acts under authorityof law by the Special Notary and designedto furnish permanent authentic evidence ofthe matters to which it relates;

(za) “unknown heir” means a heir whoseidentity is not known.

PART II

Succession

CHAPTER I

Preliminary Provisions

3. Succession.— Succession is the trans-mission of the estate of a deceased person infavour of his successors. Successor is theperson who is called to succeed to the juridicalrelations of the deceased person and uponwhom the assets and liabilities devolve.

4. Types of Succession.— (1) Succession maybe intestate or legal and testamentary.

(2) Testamentary succession is thesuccession which results from a Will left bythe estate leaver and a testamentary heir is aheir instituted by a Will. Contractual successionis illegal, except when expressly authorisedby law.

(3) Intestate succession is either free orforced. Forced succession is the one which is


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reserved by law to the forced heirs and placesrestrictions on the freedom of the estate leaverto dispose of his estate.

5. Types of successors: Heirs and legatees.—(1) Heir is the person who inherits or succeedsto the totality of the estate of the estate leaveror to an undefined share thereof, withoutspecifying the assets constituting it, while alegatee is the one who succeeds to specificand determined assets.

(2) A person who succeeds to the remainderof the estate when the assets constituting theremainder are not determined, is a heir.

(3) An usufructuary is a legatee even if hebe entitled to the usufruct of the totality of theestate.

(4) The nomenclature used by the testator,if in contravention of the above provisions,shall not change the character of thesuccessor.

6. Inheritance.— Inheritance or successionof a deceased person comprises of all theproperties, rights and obligations which heleaves upon death. Personal rights which bytheir very nature or by operation of law,extinguish upon death of the title holder, donot form part of the inheritance.

7. Simultaneous death of the estate leaverand the successor.— If the estate leaver andthose who succeed him, either by virtue of aWill or by operation of law, die simultaneouslyin the same accident or on the same dayand it is not possible to ascertain who diedthe first, it shall be presumed that all died atthe same time and there will be no transmissionof the inheritance or the legacy as betweenthem.

CHAPTER II

Opening of the Inheritance, Competence to succeedand Transmission of Ownership and Possession

8. Opening of the succession.— (1)Succession opens upon the death of the estateleaver.

(2) The place where the succession opensshall be determined as follows:—

(a) if the deceased had a permanentresidence in the State of Goa, the successionopens at the place of his permanentresidence;

(b) if the deceased did not have apermanent residence in the State of Goa, thesuccession opens where his immovableproperties are situated in the State of Goa.If his immovable properties are situated atdifferent places in the State of Goa, thesuccession opens where the major part ofthese properties are situated. Such majorpart is calculated on the basis of the valueof the properties. If the immovableproperties of the deceased are situatedpartly in the State of Goa and partly outsidethe State of Goa but within the country, thesuccession opens in the State of Goairrespective of the value of the properties;

(c) the succession of a person, who diedoutside the State of Goa, and did not have apermanent residence in the State of Goa nordid he own any immovable properties in theState of Goa but has movables in the Stateof Goa, opens at the place where the majorpart of the movable assets are located;

(d) Where the deceased did not have apermanent residence nor immovableproperties in the State of Goa, the successionopens at the place where he died in the Stateof Goa.

(3) The succession is universal and, subjectto the provisions of section 373, the successionof a deceased person to whom this Act isapplicable may be partitioned in Goa,wherever the properties, movable orimmoveable, are situated.

9. Competence to succeed.— (1) All persons,besides the State, who are born or conceivedat the time of the opening of the successionare competent to succeed, unless the lawprovides otherwise.

(2) In case of testamentary or contractualsuccession, the following are also competentto succeed:—



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(a) those conceived, who are to be born,children of a determined person who is livingat the time of the opening of succession;

(b) bodies having juridical personality.

10. Incompetence to succeed by reason ofunworthiness to succeed.— (1) The followingpersons shall be unworthy to succeed theestate leaver and are, consequently,incompetent to be his successors:—

(a) a person convicted for the commissionof murder of, or attempt to murder, theestate leaver or his spouse, descendant,ascendant, adopter or adoptee;

(b) a person convicted for defamation ofthe persons specified in the preceding clauseor for giving false evidence against theaforementioned persons in relation to anoffence punishable with rigorousimprisonment for not less than two years,whatever it’s nature;

(c) a person who, by deceit or coercion,induced the estate leaver to make, revokeor modify a Will, or obstructed him fromdoing so;

(d) a person who has fraudulently spiritedaway, concealed, destroyed or suppresseda Will, before or after the death of the estateleaver, or has benefited himself by any of hisabovementioned acts.

(2) The conviction mentioned in clauses (a)and (b) of sub-section (1) may be subsequentto the opening of the inheritance but theoffence must have been committed before it.

However, when the institution of an heir orthe appointment of a legatee is subject to acondition precedent, the offence committedbefore the condition is fulfilled, shall be relevanttill the condition is fulfilled and shall have thesame consequences.

(3) Upon conviction as provided in clause(a) or (b) of sub-section (1) becoming final, theperson so convicted shall be unworthy ofsucceeding to the estate leaver.

(4) The suit for a declaration that the personis unworthy of succeeding to the estateleaver may be filed within 1 year from thedate of knowledge of the cause ofunworthiness laid down in clauses (c) and (d)of sub-section (1).

11. Consequence of declaration of un-worthiness to succeed.— (1) Once a person isdeclared as unworthy to succeed by a Courtor is unworthy of succeeding as provided insub-section (1) of section 10, the inheritanceis deemed not to have devolved on him, andsuch person shall, for all purposes beconsidered a person in malafide possession ofthe assets.

(2) In case of legal succession, theincompetence contemplated in sub-section (1)above does not affect the right ofrepresentation of his descendants.

12. Re-acquisition of competence tosucceed.— (1) A person unworthy to succeedre-acquires competence to succeed if theestate leaver expressly rehabilitates himby a Will or a Deed drawn before a SpecialNotary.

(2) Where the testator does not expresslyrehabilitate such person, but the testatorbenefits him in the Will when he was fullyaware that he had given cause to be unworthyto succeed, the person may inherit within the

parameters of the testamentary disposition.

13. When the ownership and possession istransmitted.— The ownership and possessionof the inheritance is transmitted to the heirs,whether testamentary or intestate, themoment the estate leaver dies.

CHAPTER III

Right to Partition the Inheritance

14. Partition by inventory.— An inheritancemay be partitioned by a mandatory inventoryor optional inventory as provided in sections366 and 367 respectively.

15. Partition by Deed.— Where the heirs areof full age and none of them is under disability


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or is absent, they may, by consent, partitionthe inheritance by executing a Deed of Partitionunder the Registration Act, 1908 (Central Act16 of 1908), provided such Deed of Partition ispreceded by a Deed of Declaration of heirship.

16. Inheritance is indivisible till partition iseffected.— Where more than one person hasa claim to the inheritance, their rights shall beindivisible both in respect of ownership andpossession, till the partition is effected.

17. Consequences of transfer of specific assetof inheritance.— (1) A co-heir is not entitledto dispose of any specific asset of theinheritance or part of such an asset to astranger until and unless the said asset or partthereof is allotted to him in the partition. Anysuch transfer, if made, shall be inoperative andvoid.

(2) Where, however, a co-heir transfers hisundivided right to the inheritance to astranger, the transfer shall be subject to theright of pre-emption.

18. Right of co-heir to claim the inheritancein its entirety.— Any heir may recover thewhole of the estate or part thereof inpossession of a third party or obtain aninjunction against such party under theprovisions of the Specific Relief Act, 1963(Central Act 47 of 1963) and the latter shall beprecluded from raising the plea that suchestate or part thereof does not solely belongto such co-heir.

19. Right to demand partition.— (1) Any ofthe co-heirs or the moiety holder has a right todemand partition of the inheritance.

(2) No co-heir or moiety holder mayrenounce the right to demand partition of theinheritance.

(3) However, the parties may agree to keepthe inheritance undivided for a certain periodnot exceeding 5 years.

20. Partition of assets of joint family.— Thepartition of the assets amongst members of ajoint family shall take place in accordance with

the provisions that govern partition amongstco-heirs.

CHAPTER IV

Acceptance and Renunciation of the Inheritance

21. Acceptance of inheritance.— Accep-tance of inheritance shall be unconditional.

22. Devolution of inheritance under differenttitles.— The person who renounces theinheritance which devolves on him by one titleis not, for that reason, debarred from acceptingthe inheritance which devolves on him byanother title.

23. Freedom to accept or renounce.— Theacceptance or renunciation of an inheritanceis an entirely voluntary and free act.

24. Nullity of restricted acceptance orrenunciation.— It is not lawful for a person toaccept or renounce an inheritance in part, orfor a certain time limit or conditionally.

25. Capacity to accept or renounce.— Anyperson who is capable of managing his assetsmay, lawfully accept or renounce theinheritance.

26. Acceptance or renunciation by one of thespouses only.— A married person is notentitled to accept or renounce an inheritancewithout written consent of the other spouse.The consent may be made good by an order ofthe Court.

27. Acceptance of inheritance left to a personunder disability.— The inheritance left to aminor or a person under other disability maybe accepted by those who represent him.

28. Acceptance or renunciation of in-heritance left to a deaf and dumb person.— Adeaf and dumb person, who is not underguardianship and who knows to write, mayaccept or renounce the inheritance, eitherpersonally or through a constituted attorney.

29. Form of acceptance.— (1) The accep-tance of inheritance is express or tacit.

(2) The acceptance is express when in anydocument the heir accepts the title or quality



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of heir. The acceptance is tacit, when the heirdoes some act from which the intention toaccept has to be necessarily inferred or theact done is of such a nature that he could nothave done it otherwise than as an heir.

(3) However, acts done solely to preserveor to provisionally manage or safeguard theassets of the inheritance do not imply it’sacceptance.

30. Gratuitous transfer of inheritance orshare therein.— A gratuitous transfer ofinheritance or share therein in favour of all theco-heirs to whom it would have belonged inthe absence of the transfer, shall be deemedto be renunciation of the inheritance.

31. Consequences of Court decision declaringa person to be an heir.— A person who hasbeen declared to be an heir by an order ordecree of a Court that has become final or aperson against whom a decision has beenpassed expressly in that quality shall bedeemed to be an heir both in relation to thecreditors or the legatees who had been partiesto the case as also in relation to others.

32. Absence of consensus among heirs toaccept or renounce inheritance.— Wherethere is no consensus amongst the heirsas to whether the inheritance should berenounced, some may accept it and others mayrenounce it.

33. Transmission of right to accept.— Wherethe heir dies without accepting or renouncingthe inheritance, the right to accept or renounceshall pass on to his heirs.

34. Indivisibility of renunciation.— (1) Theheir who has accepted the inheritance of theestate leaver may renounce the inheritancewhich the estate leaver had not accepted atthe time of his death.

(2) Renunciation of the inheritance of theestate leaver shall mean renunciation of allinheritances which would have otherwisedevolved on the estate leaver.

35. How renunciation is effected.— (1)Renunciation of an inheritance shall be made

before the Court having jurisdiction over theplace where the succession opens or beforeany Special Notary.

(2) When made before the Court, it shallbe drawn in a book which shall have it’s pagesduly numbered, and initialled by the Court andwhen made by the Special Notary, it shall bedrawn in his respective Book. The Deed orrecord of renunciation by the heir shall bewritten in indelible black ink in a clear andlegible handwriting.

(3) It is the duty of the court to inspect thebook once a year and record a certificate ofinspection on the page immediately followingthe last page used. The register shall bemaintained in the chronological order andshall be preserved as a permanent record ofthe court.

(4) When an heir renounces the inheritancethrough his attorney, the power of attorneyshall be also preserved in a separate filemaintained for the purpose and the page atwhich the power of attorney is placed shall bementioned at the bottom of the Deed. The fileshall have an index of the powers of attorney.

(5) Where the renunciation is madethrough an attorney, the original power ofattorney with the specific power to renounceshall be preserved in the court or office of theSpecial Notary, as the case may be.

36. Consequences of renunciation.— (1)Where the person who is called to succeed,renounces the inheritance, he shall be deemedto have never been an heir. There is no rightof representation in this case. But therenunciation of the inheritance does notdeprive the person who has renounced of theright to receive the legacies which might havebeen bequeathed to him.

(2) The person called to succeed who isentitled to an inheritance under a Will andintestate, and renounces it under the Will ispresumed to have renounced also the intestateinheritance. But, if he renounces the in-heritance as an intestate heir without havingknowledge of the Will, he may accept the


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inheritance under the Will, notwithstandingthe former renunciation.

37. Implications of renunciation ofdis-posable share.— A renunciation of thedis-posable share shall not imply renunciationof the mandatory share, unless it is expresslymade.

38. When acceptance may be challenged.—(1) No heir who has accepted the inheritancemay, thereafter challenge his acceptanceunless,—

(a) there was coercion or;

(b) he was induced to accept it by fraud;or

(c) more than half of the inheritance hasbeen bequeathed by Will and the existenceof the Will was not known to the heir at thetime of acceptance.

(2) The provisions of sub-section (1)(a) and(1)(b) shall be applicable to renunciation.

39. Subrogation by creditor.— Where an heirrenounces the inheritance to the detriment ofhis creditors, the latter may apply to the courtfor authorising them to accept it in lieu and onbehalf of the debtor-heir, but after the creditorsare paid, the remainder of the inheritance shallgo to the other succeeding heirs and not tothe heir who had renounced it.

40. Prohibition to renounce. — No personis permitted to renounce, whether in theante-nuptial agreement or otherwise, the rightto any future inheritance or to alienate or createa charge on the rights which he mayeventually have to any inheritance.

41. Retroactivity of acceptance orrenunciation.— Acceptance or renunciation ofthe inheritance has retrospective effect fromthe date of the opening of the inheritance.

42. Inheritance at abeyance.— Theinheritance is at abeyance when theinheritance has neither been accepted nor hasit been declared vacant.

43. Temporary management.— (1) Theperson who is called to succeed is not

debarred, even if he has not yet accepted orrenounced the inheritance, from taking stepsto manage the assets when delay may causeinjury.

(2) Where several persons are called tosucceed, it is lawful for any of them to performacts of management; but if there is objectionfrom another, the vote of the majority shallprevail.

44. Notice to accept or renounce theinheritance.— (1) When a person called tosucceed is known and he neither accepts norrenounces the inheritance, the court havingjurisdiction over the place of permanentresidence of the heir, may, on application froman interested party, cause a notice to be servedon him calling upon him to either accept orrenounce the inheritance within suchreasonable time, not exceeding 60 days, asmay be fixed by the Court.

(2) When no statement of acceptance ismade nor is any document renouncing theinheritance produced, the inheritance shall bedeemed to have been accepted.

(3) If the heir renounces the inheritance,then, without prejudice to the provisions ofsub-sections (4) to (6), the next immediateheirs shall be notified and so on, successively,till no person comes forward to claim theinheritance over the estate.

(4) The creditors of the heir who renouncesthe inheritance may accept it when it isnecessary to safeguard and guarantee therights of the creditors. The creditors who aresubject to a condition precedent or to aspecified period may exercise such right whenthere is just apprehension that waiting for thefulfillment of the condition or for the debt tofall due, is likely to cause them prejudice.

(5) Such creditors have to accept theinheritance within six months from the date ofknowledge of the renunciation.

(6) The court shall notify the debtor that thecreditors have accepted the inheritance. Theacceptance by one creditor enures to thebenefit of all creditors.



719

(7) Upon the creditors of the heir who hasrenounced the inheritance being paid, theremainder shall devolve on the next immediateheirs, and not on such debtor.

CHAPTER V

Liabilities of the Inheritance

45. Liabilities of the inheritance.— Theliabilities of inheritance shall be satisfied in thefollowing order of priority:—

(1) the funeral and other expenses towardslast rites and religious services for the soul ofthe estate leaver;

(2) to meet the burden of the executorshipsand management;

(3) towards the payment of the debts of thedeceased for the satisfaction of the legacies.

46. Order of priorities.— The creditors of theinheritance and the legatees have priority overthe personal creditors of the heir and thecreditors of the inheritance have priority overthe legatees.

47. Liability of the usufructuary.— (1) Theusufructuary of the entire inheritance of thedeceased or of a share thereof may advancethe sums required, according to the assets heenjoys, to meet the burdens of the inheritance,but he retains the right to recover from theheirs, at the end of the usufruct the sumsadvanced.

(2) If the usufructuary does not advance theamounts required, the heirs may demand thatsuch of the assets enjoyed by the usufructuary,as may be necessary, be sold to meet theliability, or they themselves may pay theliability and, in this event, they shall have theright to demand interest from the usufructuaryat the rate of 8% per annum.

48. Legacy of maintenance or lifetimepension.— (1) The usufructuary of the entireinheritance of the deceased is bound to satisfyfully the legacy for maintenance or lifetimepension annuity or monthly allowance.

(2) Where the usufruct is in respect of ashare of the estate, the usufructuary is bound

to contribute only in proportion to his sharefor the satisfaction of the legacy formaintenance or lifetime pension annuity ormonthly allowance.

(3) The usufructuary of specified assets isnot bound to contribute for the aforementionedmaintenance or lifetime pension annuity ifsuch burden is not imposed on him expressly.

49. Rights and duties of the heirs inrespect of the inheritance.— (1) The heirshall retain, as against the inheritance,till partition, all the rights and obligationsvis-a-vis the deceased, with the exception ofthose that get extinguished upon the death ofthe latter.

(2) The amount of money which the heirowes to the inheritance is to be set off againsthis share.

(3) Where it is necessary to adjudicate onthe rights and duties of the heir and he is thehead of the family, an administrator shall beappointed to manage the inheritance.

50. Bonafide satisfaction of the legacies.—If a Will is declared null or is annulled afterthe satisfaction of the legacies made ingood faith, the presumptive heir is dischargedof his obligation towards the true heir, byhanding over the remainder of the inheritanceto the true heir, without prejudice to the rightsof the latter against the legatees.

CHAPTER VI

Legal Succession

51. When legal succession takes place andits extent.— Where any person dies withoutmaking a disposition of his assets or making adisposition of only a part thereof or, havingmade a Will, the Will is annulled, revoked,reduced or it lapses, his legal heirs shall inheritthe assets or the part thereof.

52. Order of legal succession.— (1) The legalsuccession shall devolve in the followingorder:-

(i) on the descendants;

(ii) on the ascendants, subject to theprovisions of sub-section (2) of section 72;


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(iii) on the brothers and theirdescendants;

(iv) on the surviving spouse;

(v) on the collaterals not comprised inclause (iii) upto the 6th degree;

(vi) on the State, provided that, in theabsence of testamentary or intestate heir ofa beneficial owner or of an emphyteusis, theproperty shall revert to the direct owner.

(2) In respect of persons referred to inclauses (i), (ii) and (iii) of sub-section (1), theagricultural produce or fruits, gathered orgrowing, meant and necessary for themaintenance of the couple shall be deemed tobe the personal property of the survivingspouse, provided that on the date of theopening of the inheritance there is no suit fordivorce or separation of persons andproperties, pending or decreed.

53. Proximity of degree.— Within each groupreferred to in section 52, the relative closer indegree shall exclude the more remote, unlessthe law has conferred on the latter the right ofrepresentation.

54. Succession per capita.— The relativeswho are in the same degree shall inherit percapita or in equal proportion subject to theprovisions of section 63.

55. Accretion upon renunciation of theinheritance.— Where the nearer relativesrenounce the inheritance, or are incapable ofsucceeding, the said inheritance shall devolveon the relatives of the next degree; but whereonly some of the co-heirs renounce theirshares, such shares shall be added to theshares of the other co-heirs within the samegroup.

56. Degree and lines of kinship.— Eachgeneration constitutes a degree and a seriesof degrees constitute a line of kinship.

57. Direct and collateral line.— The line ofkinship is either direct or collateral; the directline is constituted by a series of degreesbetween persons who descend one from theother; the collateral line is constituted by a

series of degrees between persons who do notdescend one from the other, though theydescend from a common progenitor.

58. Types of direct line of kinship.— Thedirect line is either descending or ascending;descending, when it is considered asproceeding from the progenitor to the progeny;ascending when it is considered asproceeding from the progeny to the progenitor.

59. How degrees are counted in the directline.— In the direct line, the degrees arecounted by the number of the generations,excluding the progenitor.

60. How degrees are counted in the collateralline.— In the collateral line, the degrees arecounted by the number of generations,ascending by one of the lines to the progenitorand descending by the other line, withoutcounting the progenitor.

61. Incapacity to inherit by legal succession.—The persons incapable of acquiring by Will areincompetent to acquire by legal succession.

62. Extent of incapacity.— The incapacityof the heir ceases with him. His children anddescendants, if any, succeed as if the personincapable of succeeding had died without anyincapacity.

CHAPTER VII

Right of Representation

63. Right of representation.— The right ofrepresentation arises when the law designatescertain relatives of the deceased person whosucceed to all the rights to which such personwould have succeeded, if alive.

64. Representation in the direct line.—The right of representation takes place alwaysin the direct descending line but never in theascending line.

65. Representation in the collateral line.—In the collateral line, the right of representationtakes place in favour of the descendants of thebrothers and sisters of the deceased.

66. Right of the representatives.— Therepresentatives inherit only what the personrepresented would have inherited, if alive.



721

67. Joint representatives.— If there beseveral representatives of the same person,they shall share equally among them whatwould belong to the person represented, ifalive.

CHAPTER VIII

Order of SuccessionSuccession of Descendants/Ascendants

68. Succession of children and their

descendants.— Children and their descen-

dants succeed to their respective parents and

other ascendants, without distinction of sex

or age.

69. When filiation is disputed.— (1) Where,

in a proceeding for partition of an inheritance,

the filiation is disputed and it is not proved by

documentary evidence, such party will have

to institute a suit for declaration.

(2) No proceeding for partition of aninheritance shall be stayed pending the finaldisposal of such suit.

(3) Where the party succeeds in the suit, he

shall, on his application, be impleaded in the

inventory proceeding and participate in the

proceeding from the stage it has reached or,

where the partition in such proceeding

has been homologated, he shall have his

share settled in money as provided in section

449.

70. Succession per capita.— Where all the

descendants are of the first degree, they shall

succeed per capita and the inheritance shall

be divided into as many shares as the number

of heirs.

71. Succession per stirpes.— Where all or

some of the heirs have a claim by virtue of the

right of representation, they shall succeed per

stirpes or by forming branches amongst whom

the inheritance shall be distributed and

sub-divided into branches where there is

more than one heir. The rule of equality shall

be observed both in the division and in the

sub-division.

Succession of Ascendants

72. Succession of parents.— (1) Where aperson dies without descendants, his fatherand mother shall succeed to him in equalshares or to the entire inheritance where onlyone of them is living.

(2) However, if there are full blood brothersor sisters of a predeceased child ordescendants of the deceased full bloodbrothers or sisters of such child, the father orthe mother who has married again does notinherit the assets which the predeceased childhad inherited from the other progenitor or fromhis other ascendants but only the usufructthereof.

(3) Where the parents have acknowledgedthat they are the parents of a child during thelifetime of the child, and the child dies withoutissue, the inheritance shall devolve upon hisparents or one of them, as the case may be;where, in the circumstances mentioned above,such child dies without issue but leaving asurviving spouse, the surviving spouse shallhave the right to usufruct of half of theinheritance.

Succession of Ascendants of the Second Degree

73. Succession of grandparents and otherascendants.— In default of parents, theinheritance of the deceased shall devolve onthe ascendants of the second degree and indefault of ascendants of the second degree, itshall devolve on the ascendants of the nextdegree, and so on.

74. Division per capita : Ascendants in thesame degree.— Where the survivingascendants are of the same degree, theinheritance shall be divided amongstthem in equal shares, irrespective ofwhether they belong to the paternal ormaternal line.

75. When ascendants are not in the samedegree.— Where the ascendants are not in thesame degree, the inheritance shall devolveon the nearest one, without distinction of theline.


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Succession of Brothers, Sisters and theirDescendants

76. Succession of brothers, sisters and theirdescendants.— In default of descendents andascendants and where the estate leaver hasnot disposed off his assets, his brothers, sistersand, in a representative capacity, theirdescendants, shall inherit the assets. However,the surviving spouse shall be the usufructuaryof the estate of the deceased spouseirrespective of their matrimonial regime, if atthe time of the death of the latter they werenot divorced or there was no judicialseparation by a decision that had becomefinal.

Succession of Surviving Spouse and of theCollaterals

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.

78. Collaterals other than brother, sisters

and their descendants.— Where the deceased

is not survived by any of the persons

mentioned in clauses (i), (ii), (iii) and (iv) of

sub-section (1) of section 52 and has not

disposed off his assets, it shall be inherited by

the collaterals other than brothers, sisters and

their descendants till the 6th degree.

Succession of the State

79. Succession of the State.— In default of

all testamentary or legal heirs, the State shall

succeed.

80. Rights and duties of the State.— The

rights and obligations of the State in respect

of the inheritance shall be the same as those

of any other heir.

81. Prior court order.— The State shall not

take possession of any inheritance without

prior decision of the court declaring it’s rightsthereto.

CHAPTER IX

Preferential Right of the Spouse

82. Preferential right of habitation and useof surviving spouse.— (1) The survivingspouse of the estate leaver shall have the rightto exclusive habitation of the residential houseof the family and the right to use the movablesand other objects or utensils intended for thecomfort, service and decoration of the house.If such claim is made, the value of the right tohabitation and use shall be determined andthe surviving spouse shall pay owelty to theheirs if the value of right of habitation and useexceeds the value of her moiety and share, ifany.

(2) The person having right to habitation anduse is bound to use the property as a prudentman would use.

(3) If the surviving spouse fails to inhabit thehouse for a period of one year, the right shallcease.

(4) At the request of the owner of the house,the court may, if it deems just to do so, requirethe surviving spouse to give such security asfound necessary.

CHAPTER X

Mandatory Succession, Collation and Reduction

83. Disposable portion.— The portion whichthe testator may freely dispose off shall becalled the disposable portion and it shallconsist of half of the estate of the estate leaver,except as provided hereunder:—

(a) Legitime of the parents:- Where theestate leaver has no children or descendantsat the time of his death but either his motheror father is alive, the legitime of thesurviving parents shall consist of half of theinheritance.

(b) Legitime of other ascendants:- Wherethe estate leaver has at the time of his deathascendants other than the father or mother,their legitime shall consist of one third of theinheritance.



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84. Restrictions on transfer by parents, orgrandparents.— Parents or grandparents shallhave no right to sell or mortgage their assetsto their children or grand children unless theremaining children or grand children andtheir spouses give their consent thereto inwriting.

85. Disposition of specific usufruct or lifetimeannuity.— Where the testator bequeaths aspecific usufruct or a lifetime annuity and thevalue of such usufruct or lifetime pensionannuity exceeds in value his disposableportion, the forced heirs may give effect to thelegacy or deliver to the legatee the disposableportion only.

86. Inofficious dispositions.— Dispositionsby the estate leaver by Gift or Will whichexhaust the disposable portion and impair themandatory share of the forced heirs shall becalled inofficious dispositions.

87. Right of forced heir to claim reduction.—Where the estate leaver has gifted or disposedoff by Will assets in excess of his disposableportion, the forced heirs may apply that thegif t or the testamentary disposition bereduced.

88. Renunciation of right to claimreduction.— No person shall during the lifetimeof the estate leaver renounce his right to havethe Gift or Will reduced.

89. Computation of disposable portion.— (1)For the purposes of reduction of inofficiousGifts or Wills, the computation of the disposableportion shall be made as follows:—

(a) the values of all the assets left by theestate leaver on the date of his death, shallbe added;

(b) thereupon, the value of the assetsgifted by the estate leaver during his lifetimeshall be added;

(c) and thereafter, the debts of the estateleaver shall be deducted.

The disposable portion shall be calculatedtaking into account the total sum.

(2) The value of the gifted assets shall bethe value they had on the date of the openingof the inheritance, and this date shall beconsidered for computation of the disposableportion.

Where the thing gifted has perished for nofault of the donee, the gifted thing shall not beincluded in the inheritance for the purpose ofcomputation of the legitime, unless otherwiseprovided.

Rules relating to Collation

90. Collation.— When the Gift made infavour of the forced heir impairs the mandatoryshare of the other forced heirs, the donee shallbe bound to restore the excess to the mass ofinheritance for the purposes of reconstitutingthe mandatory share and equalization ofpartition. Such return is called collation.

91. Exemption from collation.— (1) Forcedheirs may be exempted from collation if thedonor so states expressly or if the doneerenounces the inheritance. Nevertheless, theother heirs have the right to obtain reductionof the Gift, if the Gift is inofficious.

(2) Where the forced heir is exempted fromcollation, it shall be deemed that the donorintended that the Gift be reckoned in thedisposable portion.

92. When is a Gift deemed an advancementof the legitime.— Where the donor makes aGift in favour of his forced heirs without statingthat it shall be reckoned in the disposableshare, such Gift shall be deemed to be anadvancement of the future legitime or partthereof.

93. Collation by grandchildren.— When thegrandchildren succeed to the grandparents asrepresentatives of their parents, they are boundto collate whatever their parents wouldhave to collate, notwithstanding that thegrandchildren have not inherited from theparents.

94. When parents are not bound tocollate.— Parents are not bound to collate tothe inheritance of their ascendants what was


724

gifted by the latter to their children nor arethe children bound to collate what was giftedto them during the lifetime of their parents, incase they succeed to them by virtue of the rightof representation.

95. Ascendants duty to collate.— Theascendants who claim the inheritance of thedescendant donor are not bound to collate.

96. Spouses of children not bound to collate.—The Gifts made by the parents to the spouseof their son or daughter are not subject tocollation, but when they are made jointly toboth the spouses, the son or the daughter, asthe case may be, shall be liable to collate tothe inheritance his or her respective half ofthe value of the gifted assets.

97. Expenses to be collated.— (1) All theexpenses which the deceased has made infavour of his children, whether by way of higherstudies or for settling them in life or paymentof their debts, shall be collated.

(2) But in the computation of such expenses,ordinary expenses which the parents arebound to incur, are not to be taken into accountand the parents may dispense with collationprovided the expenses do not exceed thedisposable portion.

(3) The money which the children havespent to the benefit of their parents or given tothem without being by way of Gift, shall bededucted from the amounts to be collated.

(4) Where the deceased has made expensesin favour of his children for settling them inlife or for payment of their debts, which haveto be collated or where a co-heir has doneimprovements to the assets with the writtenconsent of the other co-heirs, the value of theexpenses or improvements shall be calculatedtaking into account the changes in the cost ofliving or the value of currency.

(5) Sums spent towards maintenance, andremuneratory Gifts for services rendered, orGifts made to compensate the children for anyproperties embezzled by their parents, shallnot be subject to collation.

98. Collation of fruits and profits of giftedthings.— The fruits and profits of the thingsgifted shall be computed from the date of theopening of the inheritance, for the purpose ofcollation.

99. How collation is done.— (1) The colla-tion shall be made in money, based on the valueof the things as assessed at the time of theopening of the inheritance, unless the partiesagree that the collation be done in kind.

(2) The value of the improvements made tothe gifted properties by the donee, shall beassessed with reference to the date of theopening of the inheritance and it shall bededucted from the value of things gifted.

(3) The deterioration or reduction invalue of the things gifted will not be takeninto account, where the donee or hisrepresentatives are responsible for theirdeterioration and diminution in value, byreason of an act committed by them or byreason of their negligence.

(4) When collating, livestock, fungibles orconsumable things or things subject to wearand tear, the condition in which they were,when possession was delivered to the donee,shall be taken into consideration. Whenrestituting securities which are not inpossession of the donee, the value they had atthe time of the alienation shall be taken intoaccount, if it is higher than the value they hadat the time of the opening of the inheritance.

100. Where the value of the gifted assetsexceeds the value of donee’s share in theinheritance.— Where the value of the giftedproperties exceeds the donee’s share in theinheritance, the excess shall be returned inkind. The donee shall have the right to choosefrom amongst the gifted properties those thatare necessary to make up his share in theinheritance and the encumbrances on the Gift.The donee does not have the right to take partin the licitation of the properties, which he hasto return to the other co-heirs. In case,amongst the gifted properties, there is anyproperty which is physically indivisible andwhich in its totality does not fit in the share of



725

the donee, it shall be collated in kind and thedonee shall be entitled to take part in thelicitation, subject to the provision of section427.

101. On payments made.— Payments madeby the donee, payments of the debts of thedonor or payments of the encumbrances infavour of third parties, including the paymentto any co-heirs on account of their share in thevalue of the gifted properties, shall be updatedwith reference to the official index of inflation.The provision is applicable to collations andgifts, made in cash.

102. Family arrangement.— A Gift intervivos by a married couple, with or without thereservation of usufruct and with the writtenconsent of all the presumed forced heirs, oftheir assets or a part thereof to any one ormore of the presumed forced heirs, wherethe donees compensate or undertake tocompensate the presumed forced heirs of theirfuture mandatory share, is valid and shall notbe deemed to be a contractual succession.Any change in the value of the assets at thetime of the opening of the inheritance shall, inthese cases, be irrelevant.

The owelty money, if not paid immediately,shall carry interest at the rate of 8% per annum.

103. Gift of community assets.— (1) Whencommunity assets are gifted by both thespouses, on the death of one of them therespective half only shall be brought forcollation and on the death of the other spouse,the other half shall be brought for collation. Ifthe assets gifted are exclusive assets of eitherof the spouses, such assets shall be broughtfor collation, upon the death of the respectivespouse.

(2) Once valuation of the community assets,which have not been gifted, is made, the samevaluation is valid for the second partition,having regard to the official index of inflation.

(3) When a single judicial partition is madeupon the death of both the donor spouses, thecommunity assets gifted shall be valued onlyonce with reference to their value at the time

of the opening of the inheritance of the donorwho has predeceased. This value shall becorrected as regards the second inheritance,if need be, taking into account the official indexof inflation between the dates of the openingof the respective inheritance.

104. How the shares of co-heirs are to bepaid.— (1) The shares of co-heirs of the doneeshall be filled up, as far as possible, with assetsof the same nature and kind, as those gifted tothe donee.

(2) Where the gifted assets are immova-bles, and if it is not possible to fill up the sharesof the co-heirs in the aforesaid manner, the saidco-heirs shall be compensated in money. Ifthere be no funds in the inheritance, as manyproperties as may be necessary to fetch therequired amount, shall be sold in publicauction. If the assets are movable, the co-heirsshall be compensated with other movables,having regard to their fair value.

105. When the value of the assets giftedexceeds the legitime of the donee.— When thevalue of the assets gifted exceeds the legitimeof the donee, the excess shall be computed inthe disposable portion of the donor. If despitesuch computation, the legitime and thedisposable portion are exceeded, the doneeshall be liable to bring the excess into theestate.

106. Where there are several donees.—

Where there are several donees, and the

disposable portion is not sufficient to satisfy

all the donees, the provisions of sections 113

and 114, shall be followed.

107. Dispute as regards obligation to

collate.— Where there is a dispute between

the co-heirs regarding the obligation to collate

or over the subject of collation and the dispute

cannot be decided in the inventory, the

inventory proceeding shall not be stayed on

that ground and the person bound to collate,

shall furnish security in respect of the

properties gifted to him till the dispute is

decided by a competent court.


726

108. Assets which devolve in a preferentialmanner.— (1) The successor of any assets,which are not subject to partition, and whichdevolve in a preferential manner, is bound tocollate such improvements which haveincreased the value of the assets.

(2) Where the assets which are not subjectto partition and which are to devolve in apreferential manner have been acquired for avaluable consideration, the price of theacquisition or their value, shall be collated, atthe option of the successor.

109. Duty to collate is a charge in rem.— Theduty to collate constitutes a charge in rem onthe gifted immovable properties.

110. Reduction of legacy or gift.— (1) Where

the legacy or the Gift impairs the legitime of

the forced heirs, the legacy or Gift may be

reduced for inofficiousness to the extent

necessary to make up the legitime.

(2) For the purpose of determining whetherthere is inofficiousness, the disposableshare shall be computed as provided in section89.

111. Order of reduction.— Where inofficious

Gifts have been made, Gifts mortis causa or

legacies shall be reduced first and the Gift

inter vivos shall be reduced only when

legacies are not sufficient to make up the

legitime of the forced heirs.

112. Partial reduction.— Where a partialreduction of the legacies is sufficient to makeup the legitime of the forced heirs, the legaciesshall be reduced pro rata, amongst thelegatees, unless the testator has in his Willstated that any one of the legatees shall beexempted from reduction or which shall be theorder of reduction.

113. Reduction of Gifts inter vivos.— Where

Gifts inter vivos are to be reduced, the last shall

be reduced first in its totality or in part, and

when the last Gift is not sufficient to make up

the legitime, the next immediate shall be

reduced and so on.

114. Pro rata reduction.— Where severalGifts are made in the same Gift Deed or on thesame day, the Gifts shall be reduced pro rata.

115. Reduction in respect of movables.—When the gift consists of movables, their valueat the time the Gift was made shall be takeninto account for the purpose of reduction andthe provisions of sub-sections (3) and (4) ofsection 99 shall be applicable.

116. Reduction of Gifts of immovables.— (1)When the Gift consists of immovables, theyshall be reduced in specie, and the provisionsof sub-sections (3) and (4) of section 99 shallbe applicable.

(2) For the purpose of reduction, their valueshall be computed as on the date the reductionis made, and neither the increase in the valueresulting from the improvements made by thedonee nor the decrease of such value arisingfrom deteriorations imputable to the samedonee shall be included therein.

117. When immovable cannot be divided.—Where any immovable is not susceptible todivision without detriment:

(a) when the amount of reduction exceedshalf of the value, the donee shall have theremainder in cash; and

(b) when the reduction does not exceedthe said half, the donee shall return theamount of the reduction.

118. When the donee may retain the giftedproperty.— Where the donee is also a co-heir,he may retain the gifted property, if the valueof such immovable does not exceed the valueof the legitime of the co-heir added to the valueof the reduced Gift.

Otherwise, the donee shall return the giftedproperty to the inheritance, and he shall bepaid off for the legitime and the reduced Giftin accordance with the general rules ofpartition.

119. When immovable properties are not inpossession of the donee.— Where theimmovable properties are not in possession of



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the donee at the time of the reduction orrevocation, he shall be liable for its value atthe time of the opening of the inheritance. Ifthe donee has alienated the gifted assets, heshall have to compensate in cash and if thedonee has mortgaged the gifted assets, theheir to whom such assets have been allottedshall be entitled to redeem the mortgage andclaim the amount of redemption including theexpenses incurred in that regard from suchdonee.

120. When the donee is insolvent.— Wherethe Gift consists of movables and the donee isinsolvent, the parties may claim from theimmediate transferees, if the transfer was donegratuitously and the right is not extinguishedby prescription, the value of such movables atthe time of the acquisition.

121. Fruits and profits in the event ofreduction.— The donee affected by reductionis liable for the fruits and profits only from thedate of demand. However, if the donee is aco-heir, he is liable from the date of the deathof the donor.

CHAPTER XI

Testamentary Succession

122. Institution of heir.— One or morepersons may be instituted as heirs and evenwhere the testator has left them shares in theinheritance in a certain proportion, they shallnevertheless be considered as heirs.

123. Liability of the heirs.— The heir is liableto pay the debts and satisfy the legacies withinthe resources of the inheritance.

124. Liability of the legatee.— The legateeis not liable for the encumbrances of the legacybeyond the resources of the legacy.

125. Apportionment of liabilities whereinheritance is distributed by way of legaciesonly.— (1) Where the inheritance has beenentirely distributed by way of legacies, thedebts and encumbrances shall be distributedamong the legatees in proportion to theirlegacies, unless the testator has givendirections to the contrary.

(2) Where the assets of the inheritance arenot sufficient to pay the legacies, the same shallbe paid pro rata, except for remuneratorylegacies which are considered to be debts ofthe inheritance.

126. Specific sum or thing bequeathed.—Where the testator has bequeathed a specificsum of money only or a specified thing or adetermined part of the inheritance, thedisposition shall be considered to be a legacy.

127. Institution of heirs collectively.— Wherethe testator institutes certain heirs individuallyand others collectively and says, for instance,“I institute as my heirs Peter and Paul and thechildren of Francis”, those who are collectivelyinstituted shall be considered to be appointedheirs individually.

128. Brothers or sisters generally institutedas heirs.— Where the testator institutes hisbrothers or sisters in general as heirs and hehas full blood, consanguineous or uterinebrothers or sisters, the succession shall beconsidered intestate.

129. Institution of certain person and hischildren.— Where the testator institutes acertain person and his children as heirs, theyshall be considered to have been appointedheirs simultaneously and not successively.

130. Right to be compensated for manage-ment of inheritance distributed by way oflegacies.— The heir, who has managed theinheritance which has been distributed byway of legacies, shall be entitled to becompensated by the legatees for the expenseswhich he has incurred towards the legacies.

131. Legacy of a thing subsequentlyacquired.— Where the bequeathed thing,which did not belong to the testator at the timehe made the Will, subsequently comes tobelong to him under any title, the bequest shalltake effect as if such thing belonged to thetestator at the time the Will was made.

132. Legacy of a thing belonging to the heiror legatee.— Where the testator directs that


728

the heir or the legatee shall give to anotherperson a thing belonging to one of them, heshall be bound to carry out the disposition orgive the value of the thing, if he does not chooseto relinquish the inheritance or the legacy.

133. Legacy of a thing which belongs onlyin part to the testator or to his successors.—Where the testator, the heir, or the legatee, isthe owner of a part only of the bequeathedthing or has a limited right only to thebequeathed thing, the bequest shall take effectonly to the extent of such part or of such right.

134. Restraint on marriage.— (1) Thecondition which prohibits the heir or thelegatee from getting married, or fromremaining unmarried, except when the sameis imposed on a widow or widower havingchildren, by the deceased spouse or by his orher descendants or ascendants and so also thecondition which compels him to takepriesthood vows or to take or not to take acertain and specified profession, shall bedeemed inexistent.

(2) The provisions of sub-section (1) shall notbe applicable to testamentary dispositionwhich limits the duration of the benefits for theperiod during which the heir or legatee holdsa particular status, namely, bachelorhood,widowhood, or married status.

135. Condition to reciprocate.— The disposi-tion made on condition that the heir or legateeshall also make in his Will a disposition infavour of the testator or of another person, shallbe null and void.

136. Deferred execution of the disposition.—The condition which suspends the operationof the disposition for a certain period, shall notbe a bar for the heir or legatee to acquire rightto the inheritance or to the legacy and totransmit it to his heirs.

137. Ineffective dispositions.— The legaciesshall not take effect:-

(a) if the testator alienates the bequeathedthing; or

(b) when the bequeathed thing is resextra-commercium; or

(c) when the testator transforms thebequeathed thing in such a way that it doesnot have either its original form or itsdenomination; or

(d) where the testator has been dispos-sessed of the bequeathed thing by a personhaving a lawful title thereto or it has beenwholly destroyed during the lifetime of thetestator and the heir is not responsibletherefore.

138. Legacy in the alternative.— (1) Wherea legacy is in the alternative, that is, the testatormakes a bequest of one of two or more thingsand one of them is destroyed, the existing thingor things shall be delivered to the legatee.

(2) Where only a part of the thing isdestroyed, the remainder shall be delivered.

139. Indivisibility of the disposition.— Thelegatee is not entitled to accept a part of thelegacy only and relinquish the other part;neither is the legatee entitled to relinquish anonerous legacy and accept the one which isnot onerous.

However, the heir, who is at the same timea legatee, may relinquish the inheritance andaccept the legacy and vice versa.

140. Supervenience of descendants.— (1)The Will made by a person who did not havechildren at the time of making it or did not knowthat he had children, lapses in the eventof supervenience of children or otherdescendants.

(2) A legacy does not lapse in any of thecases mentioned above but it may be reducedas inofficious in accordance with section 110.

141. Effect of supervenient childrenpredeceasing.— Where the supervenientchildren die before the testator, the dispositionshall take effect unless revoked by thetestator.

142. Legacy of a pledged thing.— Wherethe bequeathed thing is pledged, it shall beredeemed at the expense of the inheritance.



729

143. Legacy of thing ascertainable at theplace where found.— The legacy of a thing ora quantity which is to be received at a fixedplace, shall take effect only to the extent of theportion that is found at that place.

144. Legacy of debt not fallen due.— (1)Where the testator bequeaths a certain thingor a certain amount as a debt owed by him tothe legatee, the legacy shall be valid,notwithstanding that the amount or thingwas not really due, unless the legatee wasincompetent to receive it as a Gift.

(2) If a debt is to fall due only after a certainperiod, the legatee is not bound to wait for theexpiry of the period to demand its payment.However, the legacy will not take effect if thetestator, who was a debtor at the time ofmaking of the Will, has paid the debtsubsequently.

145. Legacy made to the creditor oftestator.— (1) Where the testator makes abequest to the creditor without making anyreference to the debt of the testator, the legacyshall not be deemed to have been made inpayment of debt.

(2) Where the testator bequeaths anyoutstanding debt due to him, whetherrecoverable from a third party or from thelegatee himself, or discharges the legatee ofthe debts, the heir shall carry out the bequestby handing over to the legatee the respectiveinstrument, if any.

(3) Where it is proved that the debt due tothe testator has been paid, wholly or in part,the legatee may demand from the heir theequivalent of the debt or of the part paid; butwhen the extinguishment of the debt resultsfrom any other cause, he shall not be entitledto make any demand to obtain its payment.

146. Unconditional legacy.— An un-condi-tional legacy confers on the legatee atransferable right from the date of the testator’sdeath.

147. Choice of legacy of a generic thing.—(1) Where the testator makes a bequest of an

unspecified thing comprised in other thingsof the same kind, the selection of such thingshall be made by the person who has to handit over from amongst the things having similarqualities.

(2) Where the right to select is by an expressdisposition of the testator given to the legatee,he shall in his discretion select from amongstthe things of the same kind.

But where things of the same kind do notexist in inheritance, it is the heir who shallselect the thing to be given to the legatee andsuch thing shall be of similar value or quality.

148. Heir’s right to select.— Where thelegacy is in the alternative and the right toselect has not been expressly conferred on thelegatee, the heir shall have the right to select.

149. Transmission of right to choose.—Where the heir or legatee who has the right toselect, has not made such selection during hislifetime, such right shall devolve on to theheirs. Once the selection is made, it shall beirrevocable.

150. Legacy for maintenance.— (1) Where alegacy is given for the maintenance of alegatee, the legacy shall include food, clothingand lodging and, when the legatee is below18 years of age, it shall also include education,unless otherwise provided in the Will.

(2) The maintenance given for educationmay be reduced in the event the ability to giveor the need to receive, is reduced.

151. Legacy of house with things existingin it.— Where a house with all things foundtherein is bequeathed, the bequest shall notinclude debts due to the inheritancenotwithstanding the fact that the instrumentsand documents relating to such outstandingdebts due to the testator, are found in thehouse.

152. Legacy of usufruct.— A legacy ofusufruct without fixing the period of itsduration shall be construed to have been madefor the lifetime of the legatee and where suchlegatee is a body with perpetual succession,


730

the legacy shall be construed to have beenmade for a period of thirty years only.

153. Legacy to minor.— A legacy to a minorwhich is to be received by him after he attainsmajority, cannot be demanded by him beforehe attains majority.

154. Legacy for charitable purposes.— Alegacy left for charitable purposes shall beconstrued to have been made for the purposeof welfare and charity, unless otherwiseprovided in the Will.

155. Mistake as to object or subject of thelegacy.— The mistake of the testator in respectof the object or the subject of the legacy shallnot render the legacy void, if it is possible toascertain clearly what was the intention of thetestator.

156. Delivery of legacy.— (1) Where thelegatee is not in possession of the bequeathedthing, he shall call upon the heirs to give effectto the legacy.

(2) When the heirs delay in taking charge ofthe inheritance, the legatee may causesummons to be served on them to accept orrenounce the inheritance.

(3) Where the heirs renounce the inheri-tance, the legatees may apply that a curatorbe appointed for the inheritance and demandthe delivery of the legacy from the appointedcurator.

(4) Where the legacy is an encumbranceon another legacy, the legatee of theencumbrance shall demand the legacy fromthe latter.

157. Duty to carry out the Will.— (1) Wherethe entire inheritance has been distributed byway of legacies and the testator has notappointed an executor, the legatee who is themost benefited shall be deemed to be theexecutor.

(2) Where there be more than one legateein similar circumstances, such legatees shallchoose one of them to be the executor.

(3) When there is no agreement betweenthe legatees, or when any of such legatees isa minor, absent person or under interdiction,the executor shall be appointed by the court.

158. Fruits and income of legacy.— Unlessthe testator has provided otherwise, thelegatee is entitled to the fruits and profits ofthe bequeathed thing right from the date ofthe death of the testator, as well as to theinterest accrued from the money bequeathed,from the expiry of the time to carry out thelegacy.

159. Legacy of periodic sums.— Where thetestator bequeaths periodic sums, the firstperiod shall run from the date of the testator’sdeath. The legatee shall have the right to thesaid installment the moment the new periodcommences, even if the legatee dies before theperiod comes to an end. However, the bequestshall be enforceable at the end of the periodonly, unless the bequest is for maintenance inwhich case it shall be enforceable at thebeginning of the period.

160. Expenses for delivery of legacy.— Theexpenses for the delivery of the bequeathedthing shall be met by the inheritance, unlessthe testator has provided otherwise.

161. Manner and place of delivery.— Thebequeathed thing shall be delivered togetherwith its accessories at the place and in thecondition in which it was at the time of thetestator’s death. If the bequest consists ofmoney, jewellery, or shares and othersecurities, whatever may be the type of theinstruments, it shall be delivered at the placewhere the inheritance is opened, unless thetestator has provided otherwise or there is anagreement between the parties to thecontrary.

162. New acquisitions.— If the person whobequeaths any immovable property addssubsequently to such property newacquisitions, these acquisitions, even ifcontiguous, shall not form part of the legacywithout a new declaration of the testator. Incase any improvement is made to thebequeathed property which is necessary,



731

useful or luxurious, it shall form part of thelegacy.

163. Legacy of thing burdened withencumbrance in rem.— If the bequeathedthing is burdened with any emphytheutic fee,share in the rent, easement or any otherencumbrance inherent thereto, the bequea-thed thing shall go to the legatee with theencumbrance. However, if such encum-brances are in arrears, such arrears shall bemet by the inheritance.

164. Lien on immovable assets.— Theimmovable assets which devolve on the heirsfrom the testator are subject to a lien for thesatisfaction of the legacies. However, if any oneof the heirs is specifically made liable for anysuch payment, the legatee can exercise thisright over the immovable asset which may beallotted to the said heir in the partition.

165. Duty of co-heirs to compensate whenthe legacy consists of an asset of one co-heironly.— Where the testator bequeaths a thingbelonging to one of the co-heirs, the otherheirs shall be bound to compensate himproportionately unless the testator hasprovided otherwise.

166. Institution of heir or legatee subjectto fulfillment of condition.— If theinheritance or the legacy has been left subjectto the condition that the heir or legatee shouldnot give a specified thing or should not performa specified act, the said heir or legatee may becompelled, at the instance of the interestedparties, to furnish security for the performanceof the condition, unless the condition is one ofthose contemplated by section 134.

167. Conditional legatee.— If the legacy isconditional or is to take effect after a certaintime, the legatee may require the person whohas to deliver the legacy, to furnish security.

168. Responsibility of the heir apparent. —(1) If the Will is declared null and void afterthe payment of the legacy and the legacy hasbeen satisfied in good faith, the heir institutedin the Will shall stand discharged of his

responsibility towards the true heir bydelivering the remainder of the inheritance.

(2) The preceding provision shall also beapplicable to legacies subject to encum-brances.

169. Reduction of encumbrance attached tolegacy.— When the legacy is subject to anencumbrance and the legatee does not receivethe whole legacy due to his own fault, theencumbrance shall be reduced propor-tionately and, in case he is dispossessed fromthe bequeathed thing, the legatee maydemand the restitution of whatever was paidby him.

Right of Accretion

170. Right of accretion.— (1) If any of theinstituted co-heirs dies before the testator orrenounces the inheritance or becomesincapable or unworthy of receiving it, his shareshall be added to the shares of the otherinstituted co-heirs, unless the testator hasprovided otherwise.

(2) The heirs shall also be entitled to theright to accretion, if the legatees do not wantor are unable to receive the legacy.

171. Exclusion of right of accretion.— (1) Thelegatees shall not have the right of accretioninter se.

(2) If the bequeathed thing is indivisibleor cannot be divided without detriment, theco-legatees shall have the option either toretain the whole thing against payment to theheirs of the value of the excess or to receivefrom them whatever as of right belongs tothem, delivering to such heirs the bequeathedthing.

However, when the legacy is encumberedwith an obligation and the said obligationlapses, the legatee shall profit from theresulting benefit, if the testator has notprovided the contrary.

172. Effects of accretion.— The heir whoacquires a share in the inheritance by reason


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of accretion shall succeed to all rights andobligations of the heir who did not wish orcould not receive the disposition, had it beenaccepted by him.

173. Renunciation of right of accretion.—The heirs who get the right of accretion mayrenounce it in the event it carries specialencumbrances created by the testator; but, insuch a case, the said portion shall revert tothe person or persons in whose favour theencumbrances have been created.

174. Right to legacy.— The legatee shallhave the right to recover the bequeathedthing, whether movable or immovable, from athird party, provided that the bequeathedthing is certain and specified.

Substitutions

175. Common or direct substitution.— The

testator may appoint one or more persons to

substitute the instituted heir or heirs or

legatees in case such heirs or legatees cannot

or do not wish to accept the inheritance or the

legacy. This is called common or direct

substitution. Such substitution ceases to

operate upon such heir accepting the

inheritance.

176. Pupillary substitution.— (1) The testa-

tor, who has children or other descendants

under parental authority, who will not upon

the death of the testator be under the authority

of another ascendant, may substitute the said

children or other descendants by heirs or

legatees of his choice, in case the said children

or other descendants die before completing

eighteen years of age, irrespective of their

sex. This is called pupillary substitution for

minors.

(2) Such substitution becomes ineffectivewhen,—

(a) the person substituted attains the ageof eighteen years or

(b) the substituted person dies leavingbehind descendants entitled to succeed.

177. Quasi pupillary substitution.— (1) Theprovisions of section 176 shall be applicable,irrespective of the age, when the child or otherdescendant is of unsound mind provided he isso declared by the court. This is called quasipupillary substitution.

(2) Such substitution shall become ineffec-tive if such unsoundness of mind ceases.

178. Properties which may be subject tosubstitution.— The substitution, pupillary orquasi-pupillary, may comprise such propertiesonly which the substitute could have disposedof, if he was not unable or debarred from doingso at the time of his death and which he mayhave acquired through the testator.

179. Rights and duties of the substitute.—The substitute shall receive the inheritanceor legacy with the same encumbrances, withwhich the substituted heirs or legateeswould have received, with the exception ofencumbrances which are solely personal,unless it has been provided otherwise.

180. Reciprocal substitution.— When the

co-heirs or legatees with equal shares are

reciprocally substituted, it shall be deemed

that they have been substituted in the

same proportion. However, if the number of

substitutes exceeds the number of instituted

heirs or legatees and no provision in that

regard has been made, it shall be deemed that

they were substituted in equal shares.

181. Fidei-commissary substitution.— (1)The testamentary disposition whereby any heiror legatee is bound to preserve the inheritanceor the legacy which on his death is to go to afurther beneficiary is called the fidei--commissary substitution or fidei-commissumand such heir or legatee is called fiduciaryand such further beneficiary shall be calledfidei-commissarius.

(2) It shall not be lawful to make afide-commissary substitution in more than onedegree.



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182. Lapse of fidei-commissum.— If the fidei--commissarius, who is the ultimate beneficiary,does not accept the inheritance, or dies beforethe fiduciary, the substitution shall lapse andthe fiduciary shall be the absolute owner ofthe properties.

183. Nullity of the substitution.— The nullityof the clause relating to fidei-commissarysubstitution does not render the institution ofthe heir or the appointment of the legatee nulland void. The fidei-commissary clause onlyshall be deemed to be non-existent.

184. Dispositions which are not analogousto fidei-commissum.— Dispositions wherebythe testator leaves the usufruct to one personand the naked ownership to another orsuccessive usufructs are not fidei-commissarysubstitutions.

185. Deemed fidei-commissum.— (1) (a)Dispositions made subject to a conditionprohibiting alienation inter vivos and (b)dispositions which appoint a third person totake what is left from the inheritance or thelegacy, on the death of the heir or of thelegatee, are deemed to be fidei-commissumand as such valid upto one degree.

(2) In cases covered by clause (b) ofsub-section (1), the fiduciary shall be entitledto alienate only when he does not have anyproperties of his own, apart from his residentialhouse, and upon obtaining written consent ofthe fidei-commissarius for the purpose or uponhis consent being dispensed with by an orderof the court.

186. Encumbrances in favour of paupers,etc.— The dispositions which impose on theheir or the legatee the obligation to paysuccessive sums of money in favour ofpaupers, or in favour of any public utilityinstitution or foundation are valid. In this case,however, the burden shall be charged onspecific assets and such heir or legatee shallbe allowed to capitalize, or convert theinstalments into corresponding capital inmoney.

187. Irregular fidei-commissum.— When thetestator makes a disposition for a publicpurpose, the testator may provide that in casethe institution which has to carry out the Willof the testator is extinguished, the sameproperties shall go to another institution orlegal body nominated by him.

188. Applicability to past and future fidei--commissum.— The provisions of thepreceding sections are applicable to past andfuture fidei-commissum.

Disinheritance

189. Disinheritance.— The forced heirs maybe deprived by the testator of their legitime orbe disinherited by declaring his wish in theWill, only when the law expressly permits himto do so.

190. Grounds for disinheritance.— Thetestator may in his Will disinherit by expresslydeclaring that he does so, disclosing thegrounds on which he disinherits, the followingpersons:—

(a) the presumed heir when he isconvicted for an offence intentionallycommitted against the testator, his spouse,ascendants, brothers, adopter or adoptee,punishable with imprisonment of more thansix months;

(b) the presumed heir who has been

convicted for having lodged malicious

prosecution or for perjury against any of

the persons mentioned in the clause (a)

above;

(c) the presumptive heir who, without

sufficient cause, refused to maintain the

testator and or his spouse.

191. Effects of disinheritance.— The descen-

dants of the disinherited persons, who survive

the testator, shall be entitled to the legitime

which their ascendant was deprived of, but

the ascendant who was disinherited is not

entitled to enjoy the usufruct of the legitime

received by his descendants.


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192. Burden of proof.— When the ground

for disinheritance is contested, the burden of

proving that such ground exists shall be on

the persons who benefit from the

disinheritance.

193. Failure to mention ground or irrelevant

ground.— When the testator declares that he

disinherits without clearly mentioning theground or when the ground is not proved orthe ground is unlawful, the dispositions of thetestator affecting the legitime of thedisinherited heir, are void to that extent.

194. Right to maintenance of the disinheritedheir.— When the disinherited heir has nomeans of subsistence, the beneficiary of theassets of which the disinherited heir has beendeprived is bound to provide maintenance tohim but not beyond the income of the saidassets, unless the said maintenance is due forany other reason.

195. Period of limitation to challengedisinheritance.— The person who has beendisinherited and wishes to challenge thedisinheritance may file a suit within three yearsfrom the date of knowledge of the will or thedate of death of the testator, whichever is latter.

CHAPTER XII

Wills

196. Concept of Will.— (1) A Will is anunilateral act whereby a person makesdisposition of the whole or a part of his estateto take effect upon his death.

(2) All dispositions which are by lawpermitted to be included in a Will are valid ifdone with all the formalities required to makea Will, notwithstanding that they do not containdisposition of assets.

197. Will is a personal act.— A Will is apersonal act. It shall not be lawful to make aWill through an attorney nor to leave it to thediscretion of another person, either as regardsthe institution of heirs or appointment oflegatees or as regards the subject matter of

the inheritance or as regards the execution ofthe Will.

However, the testator may entrust thepartition or the inheritance to a third partywhen he institutes or appoints a class ofpersons as heirs or legatees.

198. Will dependant upon instruction.—Dispositions which (a) depend on instructionssecretly given to another person or (b) refer todocuments which are not authentic or are notwritten and signed by the testator or (c) aremade in favour of uncertain persons, whocannot be ascertained in any manner, shallnot take effect.

199. Disposition in favour of unnamedrelatives.— Dispositions in favour of therelatives of the testator or in favour of relativesof another person without specificallydesignating the person, shall be presumedto have been made in favour of the nearestrelatives of the testator or of the personindicated, as per the order of legalsuccession.

200. Conditional disposition.— The testatormay either make an unconditional dispositionof his estate or he may dispose of his estatesubject to conditions, provided suchconditions are not absolutely or relativelyimpossible of performance or contrary to law,morality or public policy. A condition which isimpossible of performance or contrary to lawmorality or public policy shall be presumed tobe inexistent and shall not adversely affect theheirs or legatees notwithstanding that thetestator has provided to the contrary.

201. Obstruction to fulfillment of condi-tion.— Where a person who is interested inthe non-performance of the condition,obstructs its fulfillment, the condition ispresumed to have been fulfilled.

202. Reason contrary to law.— Where thetestator gives the reason or motive for makingthe Will and the reason or motive, whether trueor false, is contrary to law, the disposition shallbe null and void.



735

203. Disposition where time for commence-ment or cessation of heirship is fixed.— Wherethe testator fixes a time limit from which theinstitution of the heirs shall commence orcease, such a declaration shall be deemed asnot written by the testator.

204. Will obtained by coercion, undueinfluence, deceit or fraud.— (1) A Will obtainedby coercion, undue influence or by deceit orfraud, is voidable.

(2) The intestate heir forfeits his right to theinheritance when by deceit, fraud, undueinfluence or coercion he had prevented theestate leaver from making a Will and theinheritance shall devolve on the person uponwhom it would devolve, had such heir notexisted.

205. Duty of authorities.— An administ-rative authority which comes to know that aperson is preventing another from making aWill is duty bound to go promptly to the houseof the person so prevented with a SpecialNotary and two witnesses. Upon verifying thatthe information is true, set the said person freeto make a Will and he shall also cause a reportto be written and forwarded to the AssistantPublic Prosecutors/Public Prosecutor.

A person who prevents another frommaking a Will shall be liable to be prosecuted.

206. When expressions are insufficient.— AWill wherein the testator has not expressedclearly and fully his wish but only by signs andmonosyllables in answer to questions put tohim, is null and void.

207. Prohibition imposed by testator tochallenge his Will.— It shall not be lawful forthe testator to prohibit his legal heirs fromchallenging the validity of his Will, when suchWill is null under the law.

208. Joint Wills.— It shall not be lawful fortwo or more persons to make a Will jointly inthe same instrument, whether for theircommon benefit or for the benefit of thirdparties.

209. Revocation of Will.— (1) A Will may befreely revoked by the testator fully or in partby another Will or by a deed before the SpecialNotary with the same formal requirements.

(2) It shall not be lawful for the testator torenounce his right to revoke the Will.

(3) When the testator alienates thebequeathed thing before his death, the Willshall stand revoked pro tanto.

210. Implied revocation.— (1) Where asubsequent Will is made without making areference to the earlier one, the subsequentWill revokes the earlier Will to the extent of itsinconsistency only.

(2) Where there are two Wills of the samedate and it is not possible to ascertain whichof them is later in point of time, thecontradictory or inconsistent dispositions inboth the Wills shall be deemed inoperative.

211. Effect of Will which has lapsed.— Therevocation of a Will shall take effectnotwithstanding that the subsequent Willlapses on account of the incapacity of the heiror of the legatee appointed therein or onaccount of the relinquishment of theinheritance by the heir or by the legatee.

212. Restoration of Will.— Where thetestator revokes the subsequent Will anddeclares that he wishes that his earlier Willshall subsist, the earlier Will shall standrestored.

213. When testamentary dispositionslapse.— A testamentary disposition shall lapseand become ineffective in relation to the heiror the legatee,—

(a) where the heir or legatee dies beforethe testator;

(b) where the heir is instituted or thelegacy is left subject to a condition and theheir or legatee dies before the condition isfulfilled;

(c) where the heir or the legatee is undera disability to acquire the inheritance;

(d) where the heir or the legateerenounces his rights.


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214. Effect of ignorance of existence ofchildren.— If the testator had children or otherdescendants and he did not know that he hadchildren or other descendants, or he thoughtthat they were dead, or where the childrenare born to the testator after his death, orwhere the children are born to the testatorbefore his death, but after the Will was made,the Will shall be valid only to the extent of thedisposable portion of the testator, inaccordance with section 140.

215. Interpretation of Wills.— (1) Whereany doubt arises as to the interpretation of atestamentary disposition, the intention of thetestator shall be gathered from the Will andaccordingly carried out.

(2) When the words of a Will areunambiguous, but it is found from extrinsicevidence that they admit of interpretations, oneonly of which can have been intended by thetestator, extrinsic evidence may be taken toshow which of these interpretations wasintended.

216. Object contrary to law, morality orpublic policy.— A testamentary disposition isvoid when from its interpretation it follows thatthe Will was intended essentially for an objectcontrary to law, morality or public policy.

Who may make a Will and acquire by Will

217. Capacity to make a Will.— A personwho by law is not expressly forbidden frommaking a Will, may make a Will.

218. Incapacity to make a Will.— (1) Aperson who is not in his full senses or a personof either sex under 18 years of age, isincompetent to make a Will. Blind persons, orpersons who are unable or do not know toread are incompetent to make closed Wills.

(2) The capacity of the testator to make aWill is determined at the time when the Will ismade.

219. Restrictions on disposition ofcommunity assets.— A disposition of specificand determined properties by a person who

is married under the regime of generalcommunity of assets is null and void, unless:—

(a) the assets disposed of are allotted tohim in a subsequent partition; or

(b) they do not form part of the community;or

(c) the disposition has been made by oneof the spouses in favour of the other; or

(d) the other spouse has in a documentdrawn by a Special Notary given consent tothe said disposition.

220. Restrictions on disposing of specificassets of the inheritance.— (1) It shall not belawful for a co-heir to dispose of any specificasset of the inheritance or right to a part ofspecific assets, unless such asset or right tosuch part, is allotted to him in a partition.

(2) The disposition made in contraventionof this section shall be null and void.

221. Relative incapacity of sick person.— Awill made by a sick person in favour of thephysician or nurse who attended to him duringhis illness or in favour of the priest whoassisted him spiritually during his illness shallnot take effect if the sick person dies of thatillness.

However, (a) a legacy by way of remunera-tion for the services rendered to the sickperson when such person was not paid anyremuneration for the services or (b) adisposition made in favour of the descendants,ascendants, collaterals till the third degree orto the spouse of the testator, are valid.

222. Disposition in favour of a person whohas rendered domestic help or care andassistance.— A disposition made by a sick andold person, having ascendants, descendants,collaterals till the fourth degree or spouse, infavour of a person who has rendered domestichelp or care and assistance to such personshall not exceed one third of the value ofinheritance. However, a disposition made infavour of ascendants and descendants,collaterals till the fourth degree or the spouseof the testator is valid.



737

223. Relative incapacity–Disposition infavour of guardian or manager of assets.— Adisposition made by a person who isinterdicted or under disability in favour of hisguardian or manager of his assets, even if theaccounts of the management have beenalready approved, shall be void.

224. Relative incapacity – Disposition byadulterous spouse.— Where the adultery isproved in court, either in criminal or civilproceeding, before the death of the testator,the adulterous spouse shall be incompetent tomake a disposition in favour of the partner inthe adultery.

225. Relative incapacity – Disposition infavour of the Special Notary.— The testatorshall be incompetent to make a disposition infavour of the Special Notary who draws his Willor certifies his closed Will or in favour of theperson who writes the Will for him or in favourof the witnesses to, or interpreter of, the Willor to the record of approval or certification ofthe closed Will.

226. Extent of nullity.— Only that part of thetestamentary disposition which is hit by theprovisions which refer to the relativeincapacity of the testator shall be null andvoid.

227. Restrictions on impairment of

mandatory share.— Persons who are bound

by law to reserve the legitime may dispose of

only the disposable portion.

228. Who may receive by Will.— (1) Only

living persons, including an embryo, may

acquire by Will. The embryo is deemed to exist

when born alive and with human figure within

300 days from the death of the testator.

(2) However, the disposition is valid even

when the future heir or legatee is born beyond

the period of 300 days from the date of the

death of the testator, if the disposition is in

favour of the children yet to be born who are

descendants in the first degree of certain or

specified persons alive at the time of the death

of the testator.

229. Relevant time to determine capacity toacquire by Will.— The relevant time todetermine the capacity to acquire by Will is

the time of the testator’s death. Where an heir

is instituted subject to condition, or where the

legacy is left subject to conditions, the relevant

time to determine the capacity to acquire by

Will is not only the date of the testator’s

death but also the time of fulfillment of the

condition.

230. Consequence of incompetence to

acquire by legal succession.— A person who

is incompetent to acquire by legal succession

as provided in section 9 is incompetent to

acquire by testamentary succession.

231. Consequences of refusal to act as

executor or guardian or their removal.— The

executor who refuses to accept the office or

who, having accepted the office, is removed

therefrom on account of mismanagement and

so also the testamentary guardian who refuses

the office or is removed therefrom, forfeits the

right to whatever is bequeathed to him by the

testator.

232. Capacity of corporate bodies.—

Corporate bodies, associations, trusts, or other

legal entities may succeed by Will as heirs or

legatees.

233. Fictitious disposition.— (1) A Will

made in favour of an incompetent person by

ostensibly making it in favour of another person

with an understanding that it will benefit

the incompetent person or through an

intermediary shall be null and void.

(2) A testamentary disposition is deemed to

have been made through a fictitious person

when it is made in favour of the spouse of the

person who is incompetent to acquire by Will

or to a person whose presumptive heir he is

or when made in favour of a third party who

has agreed with the person who is

incompetent to acquire by Will that he will

transmit the benefit of the Will in favour of the

latter.


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Types of Wills

234. Types of Wills.— Wills may be of thefollowing categories:-

(a) Public;

(b) Printed open;

(c) Closed or sealed;

(d) Wills made outside Goa.

235. Public Will.— A testator who wishesto make a public Will has to declare his lastwish before any Special Notary in the presenceof two witnesses, worthy of credit so that hemay record the Will in the Book of Wills.

236. Printed open Will.— A testator whoknows to read, may opt to present to the SpecialNotary a computer generated printout of theoperative part of his Will on a standard paperof the size of 29.7 cms x 21 cms entitled ‘OpenWill’ and declare before the Special Notary thatthe printout contains his last wish in thepresence of two credit worthy witnesses, whoshall identity the testator, and certify that thetestator is in his senses and free from coercion.

237. Closed or sealed Will.— Closed or asealed Will shall be written and signed by thetestator, or it may be written by another personat the request of the testator and signed bythe testator. The person who signs the Willshall initial all its pages. The testator isexempted from signing the Will where he isunable to sign it; however, the fact that he isunable to sign the Will shall be recorded inthe Will by the Special Notary.

238. Incompetence to make a closed Will.—Persons who do not know or are unable to read

are not competent to make dispositions by way

of a closed Will.

239. Failure to present the closed Will.—Where a person who is in possession of the

closed Will, and, where the Will is made by an

absent person, does not present it or, in case

of the testator’s death, does not present it

within thirty days from the date of the

knowledge of the death, he shall be liable to

pay damages. Where the person who fails to

present the Will is guilty of deceit, he shall,

besides being liable to pay damages, forfeit his

right, if any, to the inheritance of the testator

and shall also be liable for criminal

prosecution.

240. Fraudulent removal of Will.— Any

person who fraudulently removes the Will from

the effects of the testator or from the possession

of any person with whom it is deposited shall

be subject to pay damages, forfeit his right to

the inheritance and shall also be liable for

criminal prosecution.

241. Where the closed Will is found open.—

Where the closed Will is found opened,

whether amidst the effects of the testator or in

the possession of a third party but without any

other defect, it shall not be annulled for that

reason. In such a case, the Will shall be

presented as it is to the Special Notary of the

sub-district, who shall draw a record stating

the above facts in accordance with sections341, 342, 343 and 344.

242. Tampered or torn Will.— Where theWill is found open and tampered with, or torn,the following provisions shall apply:—

(a) Where the Will is found cancelled andobliterated, or torn, either amidst the effectsof the testator or in the possession of a thirdparty, to such an extent that it is not possibleto read the original disposition, it shall bedeemed to be non-existent;

(b) Where it is proved that any person

other than the testator has tampered with

the Will, the provisions of sections 239 and

240 which are applicable to a person who

fraudulently withholds or removes the Will

shall be applicable to such person.

243. Presumption as to who is respon-sible.— Where the Will is tampered with, itshall be presumed that the tampering wasdone by the person to whom the Will wasentrusted until the contrary is proved.



739

244. Torn Will found amidst the effects ofthe testator.— Where the Will is found to betorn or reduced to pieces amidst the effects ofthe testator, the Will shall be deemed to be non--existent, notwithstanding that it is possibleto put the pieces together and read thedisposition, unless it has already been provedthat it was torn or reduced to pieces after thedeath of the testator or was caused by himwhen he was of unsound mind.

245. Wills under this Code to becomeoperative upon death.— When a public Will,printed open Will or closed Will is made inaccordance with the provisions of this Act, theWill shall become operative and executableimmediately upon the death of the testator andno probate is required.

246. Wills made outside Goa.— A Will is validas to form if it is made in conformity with thelaw of the place of making at the time it wasmade.

CHAPTER XIII

Management of the Inheritance: Head of the Family

247. To whom the office of head of thefamily belongs.— (1) The office of head of thefamily belongs in order of priority to —

(a) the surviving spouse, unless thespouse does not have a share in the assetsto be partitioned and does not havedescendants, who are still minors, as heirs;

(b) the children, who are not under adisability, and in default of children, otherdescendants who are not under a disability;

(c) the other heirs, who are not under adisability.

(2) In the category of children, otherdescendants and other heirs, the followingshall have preference:—

(a) the heirs who are living with thedeceased over the others;

(b) where there are more than one in thesame circumstances, the elder shall havepreference.

(3) The heir, who was residing permanentlyin the company of the estate leaver only, shall

be deemed to be the heir living with the estate

leaver.

248. When the guardian is appointed head

of the family.— Where there is no surviving

spouse nor heirs referred to in section 247, the

court shall appoint the guardian of the heirs

under disability as the head of the family and

where there is more than one group of heirs

with different guardians, such guardian as is

chosen by the court and, till such time there

is no guardian appointed by the court, the

court shall appoint provisionally a receiver

from amongst the nearer relatives of the heirs

under disability.

249. Eldest of the spouses to be the head of

the family.— Where an inventory is instituted

consequent upon divorce, separation or

annulment of marriage , the head of the family

shall, where the marriage is governed by the

regime of community of assets, belong to the

eldest spouse and where the marriage is

governed by the regime of separation of assets,

to the spouse who owns the assets; if there

are any community assets, the eldest shall be

the head of the family in respect thereof.

250. Special head of the family.— The

co-heirs who on the date of the opening of the

inheritance, were in possession of certain

properties of the inheritance and so also the

heirs who have to restitute gifted properties

to the estate shall be deemed heads of thefamily in respect of such properties.

251. Duty to initiate the inventory.— Thehead of the family is duty bound to initiate aninventory where there is a co-heir who is aminor or under disability.

252. When half of the income may be

distributed.— After the assets and liabilities

have been listed in the inventory proceeding,

any party may apply that half of the income of

the properties which have not been

bequeathed be distributed among the co-heirs


740

taking into consideration the value which has

been attributed to them; the head of the family,

who fails to comply with such direction issued

by the court, shall be removed forthwith and

shall be liable to pay compensation for the

damage caused.

253. Rights and duties of the head of the

family.— The head of the family, as manager

of the estate, shall receive the fruits and profits

of the properties in his possession and shall

meet the normal liabilities and shall have the

duty to render accounts in case the usufruct

of the said properties does not belong to him.

However, the head of the family shall not

alienate any properties of the estate other than

fruits or other things which cannot be

preserved without fear of deterioration.

254. Head of the family when there are only

legacies.— Where the inheritance is

distributed by way of legacies only, the most

benefited shall be the head of the family; and

if all circumstances are equal, the eldest shallhave priority.

255. When the head of the family seeksexemption or is removed.— (1) If the personsreferred to in the preceding section of thisChapter, seek exemption or are removed, thecourt shall appoint suo motu or on applicationby an interested party, the head of the family.

(2) Notwithstanding the above provisions,the parties may by mutual consent agree thatthe management of the inheritance and thefunctions of the head of the family bedischarged by any other person.

256. Concealment of assets of the inheri-tance by the head of the family or heir.— (1)The moiety holder or heir who fraudulentlyconceals assets of the inheritance, whether ashead of the family or not, forfeits in favour ofthe heirs or co-heirs, as the case may be, theright he may have to the concealed assets.

(2) The person who conceals assets isdeemed to be merely in custody of those assetsand the Court may order him that they behanded over to the head of the family.

257. Fraudulent description.— The head ofthe family who fraudulently describes credits,rights or encumbrances which are founded onsham, false or falsified documents of title, shallbe liable to pay damages for the injury causedand he shall be criminally liable.

258. Fraudulent concealment of docu-ments.— The head of the family, who concealsfraudulently documents of title necessary totake cognizance of the nature of, or of theencumbrances on, the partible assets, shall beliable for the losses caused by such omission.

Executor

259. Executor appointed by the testator.—The testator may appoint one or more personsto carry out his Will in whole or in part. Suchpersons are called executors.

260. Who may be executor.— Only a personwho has the capacity to contract may beappointed as executor.

261. Appointment of executor by court.—The court may appoint an executor when theheirs do not agree on the choice of theexecutor. Where there are minors, interdictedor absent heirs, any interested party mayapply to the court that an executor beappointed. The applicant shall disclose whoare the other interested parties and he maypropose the person who in his view is bestqualified for being appointed as an executor.

262. Where the executor declines to acceptthe office.— The appointed executors maydecline to accept the appointment. In thisevent, however, if a legacy is left to theexecutor as compensation for discharging thefunctions of executor, he shall not be entitledto claim the legacy.

263. Time limit to decline appointment.—The appointed executor who is not willing toaccept the appointment, shall, within thirtydays from the knowledge of the Will, so inform,by registered post, the Special Notary of theplace where the inheritance opens with a copyto any one of the beneficiaries under the Will.In case of his failure to inform the authorities



741

mentioned above, he shall be liable to paydamages.

264. When the executor may resign.— The

appointed executor who has accepted the

office, may quit the office upon showing just

cause such as disability due to illness, absence

for a long period or incompatibility with the

discharge of a public office and upon obtaining

an order of the court competent in terms of

section 373. Such Order shall be made after

hearing the parties. In case he quits the office

without order of the competent Court, he shall

be liable to pay damages.

265. Office of the executor is gratuitous.—

The office of the executor is gratuitous, unless

remuneration is provided for by the testator,

in the Will.

266. Impediments to become executor.—

Where there is an impediment which does not

permit the person appointed as executor to

assume the office or the executor isdischarged, the heirs shall carry out thepurpose of the Will and they shall be subjectto the following provisions:–

(a) where the hereditary shares are notequal, the office shall vest in the heir who isthe most benefited;

(b) where the hereditary shares areequal, the parties shall appoint the executorfrom amongst them, and, in case ofdisagreement or when one of them is aminor or an interdict or an absent person,the competent Court shall appoint oneamongst them.

267. Powers of the executor.— The executorshall have such powers as the testator mayhave conferred upon him in accordance withlaw. However, he shall cease to function assuch upon the appointment of the head of thefamily in an inventory proceeding. He shallnevertheless be entitled to intervene in theinventory proceeding to bring to the notice ofthe court the directions contained in the Will.

268. General duties of the executor.— Wherethe testator does not specify the duties of theexecutor, they shall be as follows:-

(i) to make arrangements for the funeralof the testator and to pay the respectiveexpenses and religious ceremonies inaccordance with the wishes of the testatoror, where the Will makes no provision in thisregard, according to the customary usages;

(ii) to cause registration of the closed Will,if it is in his custody, before the competentauthority, within thirty days from the dateof the knowledge of the death of the testator;

(iii) to carry out or execute thetestamentary dispositions and to defend, ifnecessary, their validity in or outside thecourt;

(iv) to allow the parties to take inspectionof the Will, if it is in his custody, and to allowtrue copies thereof to be taken, when sorequested.

269. Duty to initiate inventory.— (1) (a) Theexecutor shall institute inventory proceedingwhere there are minors, interdicted or absentheirs and legatees.

(b) Where the testator has empowered theexecutor to utilize the income of a certain partof the estate for the benefit of a charitable orpublic utility foundation or trust or institution,which is intended to be created by the Willor which does not have a legal personality, theexecutor shall initiate inventory proceedingand apply for the sale of such part of the estateby public auction.

(2) The procedure laid down in clause (b) of

sub-section (1) shall not be applicable

where the inheritance or legacy was left for

the aforesaid purpose to an institution

with legal personality or a trust already inexistence.

270. When the testator leaves forced heirs.—

Where the testator leaves forced heirs, the

testator shall not authorize the executor to take

charge of the estate. However, the testator


742

may direct that the forced heirs shall not take

charge thereof, unless inventory proceeding

are instituted and the executor is served.

271. Where the testator does not leave forced

heirs.— (1) Where the testator leaves heirs

who are not forced heirs, he may authorize the

executor to take charge of the estate but he

shall not exempt the executor from instituting

inventory proceeding.

(2) Such heirs may prevent the executor

from taking charge of the estate by providing

to him the necessary amount to meet the

expenses for the discharge of his functions.

(3) Where there are no funds in the estatesufficient to meet the expenses of the executorand the heirs are not willing or are unable toadvance the necessary amount, it shall belawful for the executor to cause the sale ofmovables and, if the amount realized is notsufficient, to cause the sale of one or moreimmovables after hearing the heirs; if any ofthe heirs is a minor, absent person or aninterdict, the sale of the movables orimmovable shall be done by public auction.

272. Time limit to carry out the Will.— (1)When no time limit has been fixed in the Willfor its execution, the executor shall carry it outwithin one year from the date on which heassumes office or from the date on which thelitigation, if any, with regard to the validity ornullity of the Will, has come to an end.

(2) However, it shall always be lawful for theexecutor to supervise and take care of theexecution of the dispositions which have notbeen carried out and to apply to the Court forsuch preventive reliefs as may be necessary.

(3) When the income is to be utilised for thebenefit of a charitable or public utilityinstitution or trust, the executor shall continuethe execution of the Will till such time as maybe necessary to carry out the legacy orlegacies, if the testator has so directed, subjectto section 269.

(4) Where the executor has failed todischarge his duties within the time fixed, heshall forfeit the remuneration left to him, andthe Will shall be executed, by the persons whohave the duty to execute it, as if no executorhas been appointed.

273. Joint executors.— (1) Where more thanone executor has accepted the office and lateron one or more of them have abstained fromparticipating in the execution of the Will, theexecution carried out by the others shall bevalid; but all of them shall be jointly liable forthe assets of the estate of which they havetaken charge.

(2) Where the executors who have acceptedthe office do not arrive at a consensus on themanner in which the Will is to be executed,the executorship shall lapse and the Will shallbe executed by the person who has the dutyto do so as if no executors had been appointed.

274. Duty to render accounts.— Theexecutor shall render accounts of hismanagement to the heirs or their lawfulrepresentatives. For this purpose, the executormay, if necessary, file an application to thecompetent court. Where inventoryproceedings are instituted, such anapplication shall be filed in the sameproceeding.

275. Office of executor not transferable orheritable.— The office of the executor is neithertransferable nor heritable nor can it bedelegated.

276. Accretion of remuneration.— Wherethe testator has bequeathed to joint executors,the part of the remuneration of the executorwho has been discharged or of the one who isunable to accept the office shall be added tothe remuneration of the others.

277. Expenses of the executor.— Theexpenses incurred by the executor in thedischarge of his duties shall be met from themass of the inheritance. Petty expenses forwhich usually no receipt is issued shall beapproved on the basis of an affidavit of the saidexecutor.



743

278. When the executor is guilty of deceitor fraud.— The executor who is guilty of deceitor fraud in the discharge of his duties shall beliable to pay damages and may be removedfrom his office by order of the court at theinstance of the parties. The procedure forremoval is provided in section 384.

CHAPTER XIV

Partition

279. Effects of partition.— The partition of

the inheritance in the inventory proceeding

and made in respect of which there has been

no objection, confers on the parties exclusive

ownership of the properties respectively

allotted to them, as against other parties to the

proceeding.

280. Consequences of co-heir and moiety

holder being deprived of possession.— (1) The

co-heirs and moiety holder shall be mutually

liable to indemnify the co-heir or moiety holder,

who is deprived of possession of the property

allotted to him, by a person having better title

thereto.

(2) Such liability ceases when there is

agreement to the contrary or if the

dispossession takes place due to the fault of

the person dispossessed or due to a cause

which has arisen subsequent to the

partition.

(3) The dispossessed person shall beindemnified by the co-heirs and moiety holderin proportion to their shares but where any ofthem has become insolvent, the remainingparties shall be liable for his share in the saidproportion, after deducting the share of thedispossessed party.

281. Limitation for suit for damages.— A suitfor recovery of the compensation set out in theforegoing section shall be filed within a periodof three years, and other provisions of theLimitation Act, 1963 (Central Act 36 of 1963)shall be applicable.

282. Partition done out of court.— (1) Aninheritance can be partitioned by a Deed outof court where the mandatory inventory is notrequired under the provisions of this Act.

(2) No partition of an inheritance shall bedone out of court unless it is preceded by aDeed of declaration of heirship.

283. Rescission in case of out of courtpartition.— Partitions of inheritance made outof court may be rescinded only on the groundson which contracts may be rescinded.

CHAPTER XV

Supplemental Provisions

284. Sale of share in undivided inheritance:right of pre-emption.—The moiety holder andthe co-heir shall have the right of pre-emptionwhen any share in an undivided inheritanceis sold to a stranger, without prior notice tohim.

285. Notice to moiety holder or co-heirs.— Aco-heir or a moiety holder who intends to sellhis respective share or moiety in an undividedinheritance to strangers may, however, givenotice of the intended sale by institutinginventory proceeding to enable the partiesentitled to pre-empt to exercise their right inaccordance with section 396.

286. Sham sale.— (1) A sale, whether madedirectly or through an intermediary, to defeatthe provisions imposing restrictions on thepower to transfer shall be null.

(2) When the sale is made by the spouse ofthe person who is incompetent to acquire orby a person whose presumed heir he is orwhen made with a third party who has agreedwith the person who is incompetent to acquirethat he will transmit the benefits in favour ofthe latter, such person is deemed to be theintermediary.

287. Creation of easement.— (1) Where anyimmovable property is divided by metes andbounds in the inventory proceeding and it is


744

necessary to create an easement, sucheasement of necessity shall be created andrecorded in such proceeding.

(2) Nothing shall prevent the parties fromcreating an easement by a separate Deedwith the consent of parties after the inventoryis concluded.

(3) Where the provisions of sub-section (1)are not followed, the respective owner of thelandlocked property may file a suit for creationof such easement and the compensationpayable to the servient owner as well as thecosts of the suit shall be shared by all theparties to inventory proceeding.

(4) Where an inheritance is partitionedamicably by a Deed and it is necessary tocreate an easement but such easement is notcreated in the Deed, the respective owner ofthe landlocked property shall have the rightto file a suit as provided in sub-section (3).

Usufruct

288. Definition of usufruct.— Usufruct is aright to full enjoyment of an asset or a right fora specified period, without changing its formor substance.

289. Constitution of usufruct.— Usufructmay be constituted by a registered agreement,by Will or by law in favour of one or morepersons simultaneously or successively,provided they are living at the time the rightof the first usufructuary becomes effective.

290. Extinguishment of usufruct.— (1)Unless provided to the contrary, the usufructconstituted by agreement or by Will in favourof several persons jointly, extinguishes upondeath of the last surviving usufructuary.

(2) Without prejudice to the provisionshereinabove, usufruct shall not exceed the lifeof the usufructuary; where it is constituted infavour of a body having legal personality,the usufruct shall last for a period of 30 yearsonly.

291. Right of the usufructuary.— Theusufructuary may use, enjoy and manage thething or right as a prudent man would do.

292. Determination of usufruct.— The valueof the usufruct, use and habitation shall bedetermined by multiplying the annual incomeby ten, but the value may be enhanced ordecreased depending upon the probableduration of the respective rights.

293. Emphyteusis.— (1) Emphyteusis is aconveyance whereby the owner of anyproperty transfers the beneficial ownership(dominium utile) to another and the latterbinds himself to pay him annually certaindetermined periodic sum, which is known asemphyteutic fee. Upon such conveyance, theowner of the property shall be the owner ofthe direct domain only and the transferee shallbe the beneficial owner.

(2) Emphyteusis is hereditary.

(3) The beneficial owner shall have the rightnot only to enjoy but also to alienate, mortgage,gift and exchange the property.

(4) The owner of the direct domain shall havethe right to receive the emphyteutic fee only.

294. Divisibility of the emphyteusis.— (1)The property granted in emphyteusis is notdivisible into plots, unless the owner of thedirect domain consents to it.

(2) The partition of its value amongst theheirs is done by estimation, and theemphyteusis shall be allotted to one of themin accordance with their agreement.

(3) Where there is no agreement, theemphyteusis shall be put to licitation.

(4) Where none of the heirs is willing toaccept the allotment of the emphyteusis, theproperty shall be sold and the proceeds shallbe divided amongst the heirs.

(5) If the owner of the direct domainconsents to the division into plots, each plotshall be a separate emphyteusis and the ownerof the direct domain may demand therespective emphyteutic fee of each of thebeneficial owners according to the allotmentdone.



745

(6) The division and the allotment shall notbe valid unless done by a registered documentwherein the owner of the direct domain giveshis consent. In this event, the emphyteutic feepayable by each heir may be increased onaccount of the trouble that the owner of thedirect domain has to take to collect the dividedemphyteutic fee.

(7) Where the emphyteusis is dividedwithout the written consent of the owner ofthe direct domain, each of the plots shall beliable for the entire emphyteutic fee.

295. Acts contrary to law.— Any act whichis contrary to law, whether prohibitory ormandatory, shall be null and void unless suchlaw provides otherwise.

Such nullity may, however, be cured whenthe interested parties give their consentprovided that the law which has beencontravened is not relating to public order orpublic policy.

PART III

Special Notaries

CHAPTER XVI

Establishment of District Special Notaries andSpecial Notaries

296. District and Sub-Districts.— (1) For thepurposes of this Act, the State Governmentshall form districts and sub-districts, and shallprescribe, and may alter, the limits of suchdistricts and sub-districts.

(2) The formation of districts and sub--districts and every alteration of such limitsshall be notified in the Official Gazette.

(3) Every such alteration shall take effect onsuch future date as may be mentioned in theNotification.

297. Special Notaries.— The StateGovernment may appoint in each District oneDistrict Special Notary and in each sub-districtone or more Special Notaries. The Special

Notary shall exercise the powers conferred onhim by this Act within such sub-district orsub-districts as the State Government may byorder determine. The State Government mayalso appoint joint Special Notaries in anysub-district or sub-districts, whenevernecessary.

298. Offices of the District Special Notary andthe Special Notary.— The State Governmentshall establish in every district an office to bestyled as the office of the District Special Notaryand in every sub-district an office or offices tobe styled as the office of the Special Notary orthe offices of the joint Special Notaries, as thecase may be.

299. Absence of District Special Notary.—When any District Special Notary is absenton leave or otherwise the State Special Notaryshall make necessary arrangements ofsubstitution, either directing any other DistrictSpecial Notary or any Special Notary to act assuch District Special Notary during theabsence, unless the State Government makesan appointment in this regard. However,where any Special Notary is directed to act asDistrict Special Notary, he shall not hearappeals against his own orders.

300. Absence of Special Notary.— When anySpecial Notary is absent, or when his office istemporarily vacant, the District Special Notaryshall make the necessary arrangement ofsubstitution directing any other Special Notaryto act as such Special Notary during theabsence, unless the State Government makesappointment in this regard.

301. Seal of the District Special Notary andthe Special Notary.— The several DistrictSpecial Notaries and the Special Notaries shalluse an embossed seal bearing the followinginscription “The seal of the District SpecialNotary of _____ District” or “the Seal of theSpecial Notary of ______ Sub-District”.

302. State Special Notary.— The StateGovernment may appoint a State SpecialNotary for the State of Goa, who shall havepowers of superintendence and control over


746

the District Special Notaries and the SpecialNotaries.

303. Qualifications.— A person shall not bequalified to be a State Special Notary, DistrictSpecial Notary and Special Notary, unless heis a graduate in law and possesses such otherqualifications and experience as may beprescribed.

CHAPTER XVII

Functions of the Special Notary

304. Function of the Special Notary.— Thefunction of the Special Notary is to giveauthenticity to the instruments which he isempowered to draw in accordance with law.

305. Status of the Special Notary.— TheSpecial Notary is a public officer appointedby the Government to draw authenticinstruments.

306. Evidentiary value of the documentsdrawn by the Special Notary.— The instrumentrecorded by the Special Notary constitutes fullproof of the veracity of the act, done by himand the veracity of the facts which haveoccurred in his presence or which he hascertified to be true and was competent to socertify, in relation to the parties and theirsuccessors-in-interest who have intervened insuch instrument, unless it is proved that thedocument itself is false.

307. What instruments are to be drawn onlyby way of authentic document.— Theinstruments mentioned below shall be provedonly by authentic document and no otherevidence is admissible to prove them:—

(a) Public Will;

(b) Record of printed open Will;

(c) Record of approval of the closed Will;

(d) Record of the opening of the closed

Will;

(e) Instrument of consent to the Will by

the spouse of the testator or the

testatrix;

(f) Instrument of Revocation of Will;

(g) Instrument of rehabilitation of a

person unworthy to succeed;

(h) Instrument of renunciation of

inheritance;

(i) Instrument of declaration of heirship;

(j) Instrument of ante nuptial agreement;

(k) Deed of adoption under the law in

force in Goa;

(l) Special Power of Attorney for acts to

be done under this Act;

(m) Instrument of declaration of the option

exercised under clauses (c) and (d) ofsub-section (4) of section 1.

CHAPTER XVIII

Books, Indices and the Fire Proof Boxes

308. Obligation of the State to provide booksto the Special Notary.— (1) The StateGovernment shall provide for the office of everySpecial Notary, District Special Notary andState Special Notary the books necessary forthe purposes of this Act.

(2) The books so provided shall contain theforms prescribed and the pages of such booksshall be consecutively numbered in print, andthe number of pages in each book shall becertified on the title page by the District Judgeof the respective district court or an additionaldistrict judge nominated by him, as the casemay be.

(3) The State Government shall supply to theoffice of the Special Notaries with a fire proofbox, and shall in each sub-district makesuitable provisions for the safe custody of therecords connected with the State SpecialNotary.

(4) The State Government shall provide theembossed seals to the Special Notaries, DistrictSpecial Notaries and the State SpecialNotary.

309. Books to be maintained by the SpecialNotary and District Special Notary.—

(1) The Special Notaries shall maintain:–



747

(i) a daily register of instrumentsdrawn under this Act;

(ii) a register of index of Wills;

(iii) a book of Public Wills;

(iv) a register of printed open Wills;

(v) a register of approval of closed Wills;

(vi) a register of deposit of closed Wills;

(vii) a register of opening of closed Wills;

(viii) a register of return of closed Wills;

(ix) a register of rehabilitation of a personunworthy to succeed;

(x) a register of refusal to act asexecutor;

(xi) a register of record of acquiescencegiven by the spouses;

(xii) a register of renunciation ofinheritance, adoption, ante-nuptialagreements, revocation of Wills,declaration of heirship, ordersrefusing to perform an act and suchother acts provided under law to beperformed by the Special Notary;

(xiii) a register of Special Power ofAttorney;

(xiv) a register of declaration underclauses (c) and (d) of section 1;

(xv) a register of plans;

(xvi) a register of all other documents filedin his office;

(xvii)a register of index of other instru-ments;

(xviii) book of accounts of fees and stampduty.

(2) The District Special Notary shall maintaina register of orders made in appeal againstorders of the Special Notaries.

310. Requirement of the notarial books.—The notarial books shall have a record of theiropening and closing, signed by the DistrictJudge of the respective District Court or anAdditional District Judge nominated by him,as the case may be.

311. Indexes to be maintained.— (1) Thefollowing indexes shall be maintained by theSpecial Notary:-

(a) index of the public open Will;

(b) index of the printed open Will;

(c) index of the closed Will;

(d) index of other instruments.

(2) A copy of indexes of all Wills shall beforwarded to the State Special Notary everythree months by the tenth of the monthfollowing the trimester. The State SpecialNotary shall maintain a consolidated index inhis office.

312. Maintenance and preservation of booksand other records.— (1) The Special Notaryshall preserve the books, registers, documentsand their indices maintained in his office. Onlywhere it is necessary to draw a Deed outsidehis office on special grounds, these books canbe taken out of the office.

(2) The State Government shall provide theSpecial Notaries with proper premises andstorage equipments.

(3) All such books, registers, and documentsmaintained by the Special Notary shall beforwarded for preservation, after a period of30 years, to the Director of Archives who shallbe bound to preserve them by using the latestscientific methods for preservation.

(4) In case of criminal or any otherinvestigation involving any document, aregister or book maintained in the office of aSpecial Notary, such document, register orbook shall not be taken out of his office but theinvestigating Police officer or an expert shallbe allowed to take photographs of suchdocument for the required purpose.

(5) When in any case a court calls for anydocument, book or register from the office of aSpecial Notary before it, such document, Bookor register shall be returned to theSpecial Notary, immediately after it isexamined and shall not be retained in courtrecords.


748

313. Special Notaries to allow inspection ofindices and give certified copies.— (1) Subjectto the payment of fees as prescribed in thatbehalf, the indices maintained by the SpecialNotary, shall be open for inspection by any

person applying to inspect the same and

subject to the provisions of section 352 copies

of entries in such books shall be given to all

persons applying for such copies.

(2) All copies given under this section shall

be signed and sealed by the Special Notary

and shall be admissible in evidence as proof

of the contents of the original documents. The

certified copy shall contain an endorsement

stating the number of the Will or other

instrument in the index.

314. Power of the State Special Notary and

District Notary to superintend and control

Special Notaries.— (1) Every Special Notary

shall perform the duties of his office under the

superintendence and control of the District

Special Notary in whose District the office of

such Special Notary is situated.

(2) Every District Special Notary shall have

authority to issue (whether on complaint or

otherwise) any order consistent with this Act,

which he considers necessary in respect of any

act or omission of any Special Notary

subordinate to him.

(3) The State Special Notary shall have

authority to issue, whether on complaint or

otherwise, any order consistent with this Act

which he considers necessary in respect

of any act or omission of any District SpecialNotary or any Special Notary subordinate tohim.

CHAPTER XIX

Powers of the District Special Notary andSpecial Notary

315. Powers of the Special Notaries.— TheSpecial Notaries shall have powers to drawauthentic documents such as (a) public Wills,

(b) record of printed open Wills, (c) instrumentsof consent to the Will by the spouse of thetestator, testatrix, as the case may be,(d) instruments of renunciation of inheritance,(e) record of approval of the closed Wills,(f) ante nuptial agreements, (g) Deeds ofdeclaration of heirship, (h) adoption Deeds and(i) such other acts which the Special Notary isauthorized to perform by law.

316. Power to administer oath.— The SpecialNotary shall have powers also to administeroath to a person, whenever necessary, inconnection with acts performed by him.

317. Incompetence to act.— The SpecialNotary shall not act in instruments and deedswhere he or his spouse is a party or attorneyor representative of a party or person havinginterest in the act or transaction; and alsowhere any of the ascendant, descendant of theSpecial Notary, or brother and relative in thesame degree or of his spouse is a party,interested party, attorney or representative ofany party or person having an interest in theinstrument or transaction.

318. Duty of the Special Notary.— TheSpecial Notary shall be bound to renderservices, when requested, which are withinhis competence.

319. When the Special Notary shall refuse toperform the act.— The Special Notary shallrefuse to perform the act:—

(a) If such act is forbidden by law;

(b) If the Special Notary doubts themental faculties of any party, unless one ofthe witnesses be a doctor and the SpecialNotary records that such doctor hascertified that such party is in his full senses.

320. Refusal to perform an act.— (1) Orderof refusal to record reasons.— When theSpecial Notary refuses in writing to performan act, which he is empowered to do, he shallmake an order of refusal expeditiously andrecord his reasons for such order in his BookNo. IX and endorse the words “refused todraw” on the draft document, if any, is



749

presented, and, on an application made by anyperson who has an interest in causing it to bedrawn, shall, without payment andunnecessary delay, give him a copy of thereasons so recorded.

(2) Application for reconsideration.— Theaggrieved party may call upon such Notary toreconsider his refusal.

(3) Duty to forward to the District SpecialNotary the application for reconsideration.—In the event the Special Notary does notreconsider the refusal within forty-eight hours,then he is bound to send the application forreconsideration to the District Special Notaryas Appellate Authority, along with therespective documents and his report whereinhe shall record reason for his refusal to performthe act. The District Special Notary shall givehis decision affirming, reversing or alteringsuch order within 3 days.

321. Order of the District Special Notary.—

(1) If the order of the District Special Notary

direct the Special Notary to draw the document

and the party appears before the Special

Notary within 30 days from the date of the

making of such order, the Special Notary shall

comply with it.

(2) Every District Special Notary rejectingthe appeal shall make an order and recordhis reasons for such order in his Register oforders passed in appeal; and, on an applicationmade by any person who has an interest incausing it to be drawn, shall, without paymentand unnecessary delay, give him a copy ofthe reasons so recorded.

(3) No appeal shall lie from an order of theDistrict Special Notary.

322. Suit in case of party being aggrievedby order of the District Special Notary.— Anyperson aggrieved by an order of the DistrictSpecial Notary may file a suit in the civil courthaving jurisdiction over the area where theoffice of the District Special Notary is situatedfor a decree directing the Special Notary todraw the document.

CHAPTER XX

Authentic Instrument in General

323. Who may be witnesses, identifiers andcertifiers.— (1) The following persons cannotbe witnesses or identifiers or certifiers:—

(a) persons who are not in their full

senses;

(b) minors;

(c) deaf, dumb and blind;(d) the Special Notary and his spouse or

their ascendants, descendants, brothers andsisters, brother-in-law, sister-in-law and hisstaff;

(e) persons directly interested in the Deed;

(f) ascendants in the acts of thedescendants and vice versa;

(g) father-in-law or mother-in-law in theacts of the son-in-law or daughter-in-lawand vice versa;

(h) husband in the acts of the wife andvice versa;

(i) husband and wife together.

(2) A Special Notary may accept persons aswitnesses or identifiers who are either knownto him or who prove their identity by means ofany official document such as voters identitycard, PAN card, multi-purpose NationalIdentity card.

324. Requisites of authentic documents.—(1) The requisites of the authentic documentsare as follows:–

(i) the hour, date, month, year and theplace where the document was drawn orsigned when drawn outside the office andthe statement that the Special Notary wentthere at the express request of the party;

(ii) full name of the Special Notary, hisdesignation as such Special Notary, and theaddress of his office;

(iii) full names, age, marital status,professions and addresses of the parties,and of their attorney or representatives, ifthe latter intervened directly in the Deed;


750

(iv) a reference to the powers of attorneyand other documents which prove they areattorneys or representatives, so also otherdocuments relating to the acts or which arepart and parcel of the latter, with the datesand other details which identify them. Thepower of attorney executed abroad shall becountersigned by the Indian DiplomaticAgent or the Consular services and shall beduly stamped by the competent Collector inGoa;

(v) the acknowledgement of the identityof the parties from his personal knowledgeor from the statement of the identifiers whoknow them;

(vi) reference of the oath taken by theinterpreters and the reasons which requiredtheir intervention and the manner in whichthe interpreters ascertained the wishes ofthe parties and explained to them thecontents of the documents;

(vii) full names, age, status, professionsand address of the witnesses, interpretersand identifiers and also of the persons whoread the documents at the request of theparties;

(viii) the statement of the party that hedoes not know to sign or cannot sign;

(ix) reference to the fact that the SpecialNotary has read aloud the document to theparties in the simultaneous presence of theparties, the witnesses and other personswho have intervened and of the reading bythe interpreter or by any of the parties orany other person at their request, whencompulsory;

(x) the errata memo describing thecorrections, interlineations, alterations,words struck through or if any erasuresbefore the signatures of parties, witnessesand Special Notary;

(xi) signatures of the parties at the end ofthe text when they know or can sign and ofthe witnesses and other persons who haveintervened;

(xii) signature of the Special Notary whichshall be made at the end of the document;

(xiii) the value of the notarial stamp affixedshall be mentioned in the instrument;

(xiv) the instrument shall be recorded inthe language of the court. Where the partydoes not know such language,the pagewhere the instrument is written shall bedivided into two columns and in left columnthe instrument shall be recorded in thelanguage of the court and in the right inthe language known to the party. Thetranslator shall intervene in the instrumentand shall solemnly declare that thetranslation is true and correct.

The instrument shall be recorded con-tinuously, without any blank space or blankline.

(2) The originals of powers of attorney givenby the parties to the attorneys for interveningin a Notarial act have to be produced beforethe Special Notary who shall place them orcertified copy thereof on record in his office.

325. How instruments are to be recorded.—(1) All instruments and deeds, including Wills,endorsements and approvals shall be drawnby the Special Notary in black ink and allwords shall be recorded in extenso and figuresin words.

(2) Drawing of the instrument and deedshall be in the presence of two witnesses whoshall put their usual signatures at the end ofsuch deed or instrument.

(3) The identity of parties in all instrumentsand deeds including the Wills, may be doneby any official identity card such as votersidentity card, PAN card, multi-purpose NationalIdentity card or may also be done by witnessesor on the personal knowledge of the SpecialNotary.

(4) Parties who know to write shall put theirsignatures as usual and also shall affix theirleft hand thumb impression. If there be no leftthumb the impression of right thumb shall beaffixed and in the absence of the right thumbalso the impression of any other finger, shall



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be affixed and the finger used shall be specifiedby the Special Notary. In case affixation ofimpression of any finger is not possible or theparty is not able to put his signature, theSpecial Notary shall make mention thereof inthe Deed and the Deed shall be deemed valid.

(5) The Special Notary may appoint, at theexpense of the party, an interpreter ortranslator when he requires such assistance.

326. Dumb and deaf.— (1) Dumb or deafand dumb persons who know or can write shallstate in writing in the document, before theirsignatures, that they have read the Deed andthat they admit or acknowledge that thedocument is in accordance with their wish.

(2) In case a party is dumb or is deaf anddumb who does not know or cannot write, thesigns with which he expresses his intentionsshould be understood by the witnesses andfurther an interpreter shall intervene in theacts. This fact shall be recorded in the Deed.

(3) When one of the parties is blind, thedocument shall be read twice, once by theSpecial Notary and the second time by aperson appointed by the party. This fact shallbe recorded in the Deed.

(4) The person appointed by the partyshall intervene in the Deed and solemnlydeclare that the interpretation is true andcorrect.

CHAPTER XXI

Public Open Will

327. Identification of the testator and hiscondition.— The Special Notary as well asthe witnesses should know the testator or beable to certify his identity and further, theSpecial Notary shall satisfy himself that thetestator is in his perfect sense and free fromcoercion.

328. Place, time and date of the Will.— TheWill shall be dated; indicating therein the place,hour, day, month and year and it shall be readout aloud in the presence of the said twowitnesses, by the Special Notary, and by thetestator, if he so wishes, and signed by all.

329. When a plan is attached to the Will.—Where the testator wishes to attach a plan tothe Will, or Deed of consent, the Special Notaryshall make an endorsement on the placerecording the name of testator, the booknumber, the page and date of the Will. TheSpecial Notary shall also state at the end ofWill, the file number and serial number of theplan. The plan shall be dated and signed bythe testator, the witnesses and the SpecialNotary.

330. When the testator does not know or isunable to write.— When the testator does notknow to write or is unable to write, the SpecialNotary shall so record in the Will.

331. When the testator is deaf.— When thetestator is entirely deaf but knows to read, heshall read his Will, and, when he does not knowto read, he shall appoint a person to read theWill on his behalf, and in either case, in thepresence of two witnesses. The personappointed shall intervene in the instrument.

332. Formalities to be complied withoutbreak.— All the formalities in drawing a Willshall be complied with without interruption inthe presence of two witnesses and the SpecialNotary shall state faithfully the manner inwhich the formalities were complied with.

CHAPTER XXII

Printed Open Will

333. Printed open Will.— (1) (a) A testatorwho knows to read, may opt to present to theSpecial Notary a computer generated printoutof the operative part of his Will on a standardpaper of the size 29.7 cms. x 21 cms. entitled‘Open Will’ and declare before the SpecialNotary that the printout contains his last wishin the presence of two credit worthywitnesses, who shall identify the testator, andcertify that the testator is in his perfect sensesand free from coercion.

(b) The Will shall be printed in double linespacing on one side of the paper only leavinga margin of 5 cm. on left side, 3 cms. on top


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and the bottom and one cm. on the right sideof the paper. The print shall be continuouswithout break between words and numbersshall be written in words.

(c) After the title, the testator shall set outhis full name, occupation, marital status anddescription which shall contain the names ofboth the parents, his age and place ofresidence.

(d) All the open Wills brought before theNotary, until they are preserved in a form of abound book, as provided in sub-section (7),shall be maintained in a provisional file. In thesame file, all the Wills so presented shall bekept as per the serial order of its presentationand their pages numbered serially.

(2) In the presence of the said witnesses,the Special Notary shall verify from the testatorwhether the Will presented by him expresseshis last wish according to his intention andwhether the testator is in his perfect sensesand free from coercion. The Special Notaryshall, thereupon, record on the Will thecontinuous numbers of the pages which itbears in the file maintained for preserving openWills. Every page shall be signed by thetestator, and the two witnesses to the Will justabove the first line and below the last line inthe presence of the Special Notary. The SpecialNotary shall then make a record thereofimmediately next to the signatures on the lastpage of the Will and it shall continue withoutinterruption on the same page and on thesubsequent pages.

(3) The record to be made by the SpecialNotary in the presence of the testator and thewitnesses shall contain the following:–

(a) that the Will was presented by thetestator in person and that the testatordeclared that it was his last wish;

(b) that all the pages of the Will weresigned by the testator and the witnesses inhis presence;

(c) state the number of pages the Willcontains;

(d) make mention to any blot,interlineations, correction or marginal notein the Will;

(e) that the testator was identified bywitnesses;

(f) that the testator was in his perfectsenses and wholly free from coercion;

(g) the number which the pages Will bearin the file containing open Will.

(4) The Special Notary shall read aloud inthe presence of the witnesses the Willpresented by the testator and the record made,and after specifying the place, date, monthand year the record shall be signed by thetestator, the witnesses and the SpecialNotary.

(5) The Special Notary shall then affix apassport size photograph of the testator,supplied by the testator, just below the recordmade by the Special Notary and he shall alsosign across the photograph and certify thatthe photograph is of the testator immediatelyafter all the formalities are completed, theSpecial Notary shall issue a certified photostatcopy of the Will with the record made by him,to the testator and then shall file the Will inthe file maintained for the purpose.

(6) The Special Notary shall enter theparticulars as provided in sub-section (2)above and of the date of the open Will in a bookmaintained for the purpose.

(7) At the end of every 200 sheets, theDistrict Judge of the concerned district shallinitial all the pages of the Wills contained inthe file and ensure that the sheets are boundin a book.

(8) The Special Notary shall reject theprinted open Will presented by the testator ifthe said Will is not written in the language ofthe court or in a language commonly knownin the district or is written in a language notknown to the Special Notary. In this event, thetestator may request the Special Notary todraw a public Will.



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CHAPTER XXIII

Closed Will

334. Presentation of closed Will and approvalby the Special Notary.— (1) The testator shallpresent the closed Will to a Special Notary inthe presence of two witnesses and declare thatthe disposition is his last Will.

(2) Thereafter, in the presence of the saidwitnesses, the Special Notary, after having alook at the Will but without reading it, shalldraw a record of approval. The record shallbe drawn immediately next after the signatureon the will and shall be continued withoutinterruption on the same page and on thesubsequent pages.

(3) The Special Notary shall draw a recordstating as follows:—

(a) whether the Will is written and signedby the testator;

(b) whether it is initialled by the personwho has signed it;

(c) the number of the pages of the Will;

(d) whether it has or does not have anyblot, interlineations, corrections or marginalnotes;

(e) whether the testator was identified;

(f) whether the testator was in his perfectsenses and wholly free from any coercion;

(g) whether the will was presented by thetestator in person in the manner requiredby law.

(4) The record of approval shall be read,dated and signed in conformity with theprovisions of the preceding sections 324 and325.

(5) Thereafter and in the presence of thesame witnesses the Special Notary shall putthe Will in a cover and seal it and draw upon the external side of the cover, a notegiving the name of the testator whose Will issealed.

335. Record of the approval of the closedWill.— The records of approval of closed Willsshall be made in the respective book. It shallcontain the details of the place, the day, monthand year, when the record of approval wasmade and the names and addresses of thetestator and the witnesses.

336. Failure to comply with formalities.— (1)A closed Will in respect whereof the abovementioned formalities have not been compliedwith, shall not take effect and the SpecialNotary shall be liable to pay damages and besubject to major penalty by disciplinaryproceeding.

(2) Failure to record the number of pages ofthe Will and whether it has any blot,interlineations, correction or marginal note,shall invalidate the Will, provided that it hasin fact been initialled and it does not have anyblot, interlineations, correction or marginalnote.

337. Delivery of the closed Will.— Once theWill is approved and closed in a cover, it shallbe delivered to the testator and the SpecialNotary shall enter in his book a note recordingthe place where, and the day, month and year,when the will was approved and delivered.

338. Custody of the closed Will and itsdeposit with the Special Notary.— (1) Thetestator may keep the closed Will with himselfor hand it over to a person of his confidence ordeposit it in safe custody of the Special Notary.

(2) The testator who wishes to deposit his

Will in any Special Notary’s office, shall hand

it over to the Special Notary and the Special

Notary shall make a record of deposit or cause

such record to be drawn. The record shall be

signed by him and the testator, in the

respective book.

(3) On receiving such cover, the SpecialNotary, if satisfied that the person presentingthe same for deposit is the testator or his agent,shall record in the same book and on the saidcover the year, month, day and hour of suchpresentation and receipt, and the names of any


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persons who may testify to the identity ofthe testator or his agent, and any legibleinscription which may be on the seal of thecover.

(4) The Special Notary shall then place andretain the sealed cover in his fire proof box.

339. Who may deposit the Will.— The Willmay be presented and deposited through anyattorney, in which case, the Power of Attorneyshall be annexed to the Will.

340. Special power of attorney for return ofthe Will.— Such special power of attorney shallbe drawn by any Special Notary and signedby two witnesses in the concerned book.

CHAPTER XXIV

Opening of the closed Will

341. Formalities to open a closed Will.— (1)The closed Will shall be opened or madeknown in the following manner.

(2) After the death of the testator has beenverified, or where an absent person has left aWill, if the closed Will is in the possession of aprivate person, or it is found amidst the effectsof the deceased, it shall be taken to a SpecialNotary who, in presence of the presenter andof two witnesses, shall cause a record to bedrawn of the opening of the Will. The recordshall state in what condition the Will was whenit was presented and whether it is or it is notin the condition described in the record whichwas drawn when the Will was closed.

342. Proceedings on death of the depositor.—(1) If, on the death of the testator who hasdeposited a sealed cover under section 338,an application be made to the Special Notarywho holds it in deposit to open the same, andif the Special Notary is satisfied that the testatoris dead, he shall in the applicant’s presenceand of two witnesses, open the cover, and atthe applicant’s expense cause the contentsthereof to be copied into his Book No. VI.

(2) When such copy has been made, theSpecial Notary shall re-deposit the originalWill.

343. Book of record.— The record mentioned

in the preceding section shall be written in a

book, the pages whereof shall be numbered,

initialled and at the end signed by the District

Special Notary.

CHAPTER XXV

Registration of the closed Will after opening

344. Registration of Will.— (1) Once therecord of the opening of the Will is recorded inthe book, the Special Notary shall cause theWill to be registered by copying in extenso inan appropriate book by making a original notesigned by the same, the Special Notary, statinghow it was opened and registered andwhether anything suspicious was noticed ornot.

(2) After the Will is opened, all its pages shallbe initialled by its presenter or by theinterested parties present, by witnesses andby the Special Notary.

(3) The original of the Will shall, thereafter,

be kept in the office of the Special Notary in

safe custody in charge of the Special Notary

who shall be responsible for it.

345. Withdrawal of sealed cover deposited

under the preceding section.— If the testator

who has deposited the sealed cover under the

preceding section wishes to withdraw it, he

may apply either personally or by duly

authorized agent, to the Special Notary who

holds it in deposit and such Special Notary, if

satisfied that the applicant is actually the

testator or his agent, shall deliver the cover

accordingly. The Will shall be returned to the

testator by following the formalities laid down

for the deposit of the Will. A record shall be

made in Book No. VII.

CHAPTER XXVI

Instrument of declaration of heirship

346. Declaration of heirship.— (1) After thesuccession opens, and the law does notrequire that mandatory inventory proceed-ings be instituted to partition the inheritance,



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heirship may be proved by a Deed ofdeclaration of heirship drawn by the SpecialNotary.

(2) Three persons and at least one of theinterested parties shall have to declare on oathbefore the Special Notary that the interestedparty or parties named by them are the onlyheir or heirs of the deceased. If such deceasedperson was married, the name of the spouseshall also be disclosed and whether the spouseis surviving or has expired. The interestedparty shall also declare in the act whether thevalue of the inheritance exceeds Rs. 10 lakhsor not shall disclose the names of the spousesof the heirs, if any.

(3) The declarants shall produce thefollowing documents:—

(a) death certificate of the deceased;

(b) Will or Gift Deed mortis causa, whenthe succession is founded on suchdocument;

(c) document to prove the relationship ofthe heir or heirs to the deceased.

(4) Where a party is unable to produce abirth certificate, death certificate or a marriagecertificate issued by the authorities, the partymay produce an order or decree of the courtcertifying such birth, death or marriage or acertified copy issued by an institutionmaintaining such records.

(5) When all the interested parties areabroad, a constituted attorney with specialpowers may make the declaration requiredunder sub-section (2).

(6) A person, who under the provisions ofthis chapter is not competent to be a witnessand a person who is a successor of thepresumed heir, shall not be competent to be adeclarant.

(7) If the declarants or the interested partyor parties or their attorneys, are found tohave knowingly made a false declaration,with regard to the particulars required undersub-section (2), they shall be liable for penal

action under sections 191 and 199 of the IndianPenal Code (45 of 1860).

(8) The fact that any person has beenbrought on record in Court proceedings otherthan inventory proceedings as legalrepresentative of the deceased, shall notamount to a declaration of heirship.

(9) A Deed of declaration of heirship shallbe sufficient evidence for the purpose of:-

(i) mutation;

(ii) transfer of shares;

(iii) withdrawal of money from a bank orother financial institution where the depositdoes not exceed Rs. 50,000/-. Provided thatwhere there is only one heir, there is norestriction on withdrawal of any amountfrom the deposit.

(10) The fee or duty on a Deed of declarationof heirship shall be as prescribed, on eachinheritance opened, irrespective of thenumber of heirs.

(11) The Special Notary recording the Deedof declaration of heirship shall, at the expenseof the interested party or parties, publishwithin 15 days, an extract of the declaration,disclosing the name and permanent residenceof the deceased and the names of theinterested parties and other identificationparticulars, in the Government Gazette. Whenthe value of inheritance exceeds Rs. 10 Lakhsin all, such extract shall also be published in anewspaper in circulation in the locality wherethe Deed is drawn. The Special Notary shallrequire the interested party or parties toadvance the expenses towards the publicationof the notice.

(12) Any person claiming to be an heir ofthe deceased who has not been named in thedeclaration may file a suit for declaration ofheirship and consequential reliefs. If such suitis filed, a notice thereof shall forthwith begiven by the Court to the respective SpecialNotary or by the Plaintiff in the suit, enclosinga certified copy of the plaint.


756

(13) If the Special Notary has not receivedany notice from the Court or the Plaintiff, heshall, within 30 days of the publication of theextract, issue a certified copy of declaration ofheirship, which shall contain an endorsementthat no such communication of institution ofany suit has been received by him.

(14) Failure to file suit under sub-section(12), shall not deprive the aggrieved party tochallenge the Deed of declaration within theperiod of limitation.

CHAPTER XXVII

Void Notarial Acts

347. Notarial acts when void.— (1) Notarialacts shall be void in the event of,—

(i) incompetence of the Special Notary asregards the subject and place;

(ii) failure to mention the day, date, month,year and place. However when it is possibleto ascertain which is the correct date,month, year and place from the context ofthe documents or other material availablein the office of the Special Notary, the nullityon the ground of failure to mention themshall not subsist;

(iii) absence of signature of the partieswhen they know to or can sign;

(iv) absence of signatures of twowitnesses at least when the law does notrequire more;

(v) failure to identify the party;

(vi) failure to mention the power ofattorney, if the act is done by the attorney;

(vii) absence of errata memo of thecorrections, interlineations, dashes orerasures made.

However, words corrected, struckthrough or erased without errata memowhich do not amount to alteration of theessential terms of the respective instrumentor its context in substance, are deemed not

written and do not result in nullity, providedthat the intention of the testator can begathered from the remaining part of the Will.The same procedure shall be followed asregards words inserted without beinginitialled, notwithstanding that they mayresult in alteration of the meaning of the text.

(viii) absence of the signature of theSpecial Notary.

(2) Where a disposition is made in favour ofthe witnesses, certifiers or interpreters whohave intervened in public Wills or in the recordof approval of sealed Wills, only suchdisposition shall be void.

(3) Any act performed by the Special Notarycontrary to section 317 shall be void. However,public Wills and records of approval of closedWills shall be excluded therefrom; in suchcases, of nullity shall be restricted todispositions made in favour of persons referredto in section 317.

CHAPTER XXVIII

Validation of Notarial Acts

348. Validation of Notarial acts.— Notarialacts which are null on the grounds mentionedin clauses (iii), (iv) and (vi) of sub-section (1) ofsection 347 and which have not beeninitialled by the parties, may be validated bythe competent court in a suit instituted for thesaid purpose by an interested party againstthe other interested parties and the SpecialNotary, on the following terms:–

(a) when in the circumstances mentionedin clause (iii) of sub-section (1) of section347, it is proved that respectable personsare required by law were present;

(b) when in the circumstances mentionedin clause (iv) of sub-section (1) of section 347the identity of the party to the instrument isproved;

(c) When in the circumstances mentionedin clause (vii) of sub-section (1) of section347, it is proved that the Deed was writtenin his hand by the Special Notary or by the



757

Joint Special Notary in terms of section 324and 325 and a certified true copy, signed bythe Special Notary or by the Joint SpecialNotary is issued:

Provided that:

(i) Public Wills or record of approval ofclosed Wills where a mention as to the formalrequirement set out in the body of thissection is made, may be validated when inthe respective suit it is proved that theabove requirements had been compliedwith;

(ii) The decree validating the documentsshall be endorsed in the respective Deed onapplication of the parties or by the SpecialNotary suo motu;

(iii) Notwithstanding such validation, theSpecial Notary shall be liable for the lossescaused and shall also be liable todisciplinary proceedings and the damageswhich he is liable to pay, may be determinedin the above mentioned suit.

CHAPTER XXIX

Civil Liability of the Special Notary

349. Liability to disciplinary proceedings.—(1) A Special Notary is liable to disciplinaryproceedings:–

(i) when he loses or destroys anybooks, registers or documents of his officeor willfully allows them to be lost ordestroyed;

(ii) when he refuses to perform hisfunctions at the right time without justcause;

(iii) where his act is declared false and heis responsible for the falsification;

(iv) when he issues certified copy whichis not as per the originals;

(v) when his act is declared void by acourt on the ground of lack of jurisdiction ofthe Special Notary;

(vi) when his act is declared void by a

court on the account of incapacity of the

parties or their attorneys or representatives,

and if he had knowledge of their incapacity

at the time the act was performed;

(vii) when his act is declared void by acourt for lack of competence of thewitnesses and he had knowledge of suchfact at the time the act was done;

(viii) when his act is declared void for non-

-compliance with formal requirement, on

grounds other than the lack of competence

of witnesses;

(ix) when his act is declared void on

account of coercion, and if he had

knowledge of the coercion at the time the

act was performed or he was a party to the

coercion;

(x) when his act is declared void on the

ground that he has intentionally induced a

party into a mistake.

(2) The Special Notary shall be liable to

disciplinary proceedings for any act done in

the discharge of his duties in cases not covered

in sub-section (1), when the liability arises

from a criminal proceeding.

350. Insufficiency of stamp.— No document

or instrument including a Will drawn by the

Special Notary shall be invalidated on the

ground that it is not duly stamped or that it is

insufficiently stamped.

351. Discretion to state the provision and

accept a draft.— (1) It is open to the Special

Notary while drawing an act, to make mention

of the legal provision under which the act is

done if the parties plead that such mention

would better clarify their intention.

(2) It is open to the parties to submit to the

Special Notary the proposed draft of the Deed

which they want the Notary to draw. The

Notary shall draw the act in the manner

shown in the proposed draft if he is satisfied


758

that it conveys better the intention of the

parties. The said draft, after being initialled

by the Notary, shall be returned to the party

who gave it, unless the party desires that the

same may be kept on record. Whenever such

draft is kept on record, it shall be initialed by

all parties who know and can initial it.

CHAPTER XXX

Certified copies

352. Who may apply.— Any person mayapply for certified copies of the Wills, entriesin the registers, instruments and documentsrecorded in the office of the Special Notary.However, during the lifetime of the testator,certified copies of public Wills, Deeds ofrevocation of Wills, records of deposit of closedWills, records of approval of closed Wills,record of open printed Wills shall be issuedonly on the application of the testator himselfor by his attorney with special powers. Afterthe death of the testator, such certified copiesshall be issued to any person upon productionof the death certificate of the testator and anendorsement to that effect shall be made inthe margin of the page where the records orWill are written, unless such endorsement hasalready been made.

353. To whom certified copy may bedelivered.— A certified copy obtained underthe section 352 shall be delivered to theapplicant, either in person or to his dulyauthorized agent.

354. Time limit to issue certified copies.—The Special Notary shall issue the certifiedcopies, within a period of ten days, on paymentof the prescribed fees. When an urgentcertified copy is applied for, it shall be issuedupon payment of such extra fees as may beprescribed, within two days.

355. When a reference is made to otherdocuments in the main instrument.— Whenin any instruments drawn up by the SpecialNotary, a mention is made to a power ofattorney or to a Deed delegating powers or to

any other document which is on record,certified copy of such document shall beissued alongwith the certified copy of themain instrument drawn up by the SpecialNotary.

356. When a reference is made to a drawingor plan in the main instrument.— A certifiedcopy of a Deed or instrument, in which areference is made to a drawing or a plan whichis on record, shall be accompanied by acertified copy of such drawing or plan. For thispurpose, the Special Notary shall appoint anexpert to prepare a copy thereof and theSpecial Notary shall issue the certified copyonly after comparing it with the original. Thefees payable to the expert shall be borneby the party applying for the certified copy,and such fees shall be fixed by the SpecialNotary.

357. Manner in which certified copy is to beissued.— (1) No certified copy shall be issuedby the Special Notary leaving any blanks orcontaining any abbreviations or figures andall pages shall be numbered serially.

(2) The date on which and the place at whichthe certified copy is issued shall be recordedtherein.

358. When there are interlineations, erasuresand corrections.— Where there are anyinterlineations, erasures, corrections made orany line drawn in the body of the instrument,a footnote shall be recorded describing themimmediately following the body of the maintext.

CHAPTER XXXI

Fees

359. Fees be fixed by the State Govern-ment.— The State Government shall preparea table of fees payable for the instrumentsdrawn by the Special Notary.

360. Publication of fees.— A table of fees sopayable shall be published in the OfficialGazette and a copy thereof shall be exposed



759

to public view in every office of the SpecialNotaries.

CHAPTER XXXII

Penalties

361. Penalty for incorrectly recording,endorsing, copying, and translating docu-ments with intent to injure.— (1) EverySpecial Notary appointed under this Act andevery person employed in his office for thepurposes of this Act, who being charged withdrawing, endorsing, copying, or translating adocument, does so in a manner which heknows or believes to be incorrect, intendingthereby to cause or knowing it to be likely thathe may thereby cause injury as defined in theIndian Penal Code (45 of 1860), to any person,shall be punishable with imprisonment for aterm which may extend to seven years andshall also be liable to fine.

(2) Every Special Notary appointed underthis Act and every person employed in hisoffice for the purposes of this Act, who hasaccess to the documents, books and registersmaintained in his office, remove, mutilate,destroys or make any alteration theretointending thereby to cause or knowing it tobe likely that he may thereby cause injury asdefined in the Indian Penal Code (45 of 1860),to any person, shall be punishable withimprisonment for a term which may extendto seven years and shall also be liable to fine.

362. Penalties for making false statements,delivering false copies or translations, falsepersonation and abetment.— Whoever,—

(a) intentionally makes any false state-ment, whether on oath, or not, whether ithas been recorded or not, before any officeracting under this Act;

(b) intentionally delivers to any officeracting under this Act, a false copy ortranslation of a document or a false copy ofa map or plan;

(c) personates another before any officeracting under this Act;

(d) abets anything made punishableunder this Act,

shall be punishable with imprisonment for aterm which may extend to seven years andshall also be liable to fine.

363. Thing bonafide done or refused in hisofficial capacity by an officer acting under thisAct.— No officer acting under this Act shallbe liable to any suit or claim or demand byreason of anything in good faith done orrefused in his official capacity.

364. Nothing so done is invalidated by defectin appointment or procedure of appointmentof an officer acting under this Act.— Nothingdone in good faith pursuant to this Act by anofficer under this Act shall be deemed invalidmerely by reason of any defect in hisappointment or in the procedure of hisappointment.

CHAPTER XXXIII

Miscellaneous

365. Ex-officio powers and acts to be doneafter office hours.— (1) The District Registrarsand Sub-Registrars appointed under theRegistration Act, 1908 (16 of 1908), shall ex--officio exercise the powers and functions ofDistrict Special Notaries and Special Notariesunder this Act.

(2) The State Registrar appointed in theRegistration Department of the StateGovernment shall be the ex-officio State SpecialNotary and shall have power of generalsuperintendence and control over the SpecialNotaries and District Special Notaries, unlessthe State Government deems it necessary toappoint a State Special Notary exclusively forperforming functions as stated as above.

(3) No Special Notary shall be bound to drawany instrument beyond the normal office hoursor on Sundays or on holidays, unless there isan emergency. The Special Notary shall,where he is required to work beyond thenormal office hours, be paid by the personrequiring such work, such over time fees as


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may be fixed by the Government, bynotification. The Special Notary shall also beentitled to adequate police protection for hispersonal security and the security of theNotarial books.

PART IV

Inventory Proceeding

CHAPTER XXXIV

Types of Inventory Proceeding

366. Mandatory Inventory.— When a persondies leaving a surviving spouse or an heir,any one of whom is an interdict, absentperson, unknown, or minor, inheritance shallbe partitioned, by instituting inventoryproceeding only, which shall be calledmandatory inventory proceeding.

367. Optional Inventory.— Where theinterested parties do not fall in any of thecategories mentioned in section 366, theparties may institute inventory proceeding topartition the inheritance, which shall be calledas optional inventory proceeding.

368. Inventory upon divorce, or separationor annulment of marriage.— (1) After thedivorce or separation of persons or annulmentof marriage is decreed, the spouses maypartition their assets by instituting inventoryproceeding which shall be miscellaneousproceeding appended to the suit for divorce,separation of persons or annulment.

(2) Separation of assets in special cases–debts of spouse, insolvency and bankruptcy;

(a) Wherever any spouse seeksseparation of common assets or where eitherspouse is declared as insolvent or bankrupt,the procedure specified in sub-section (1)shall be followed with the followingmodification:—

(i) the creditor of the indebted spouseor any creditor in case of insolvency orbankruptcy shall have the right toprosecute the inventory;

(ii) debts which are not proved bydocumentary evidence shall not beapproved;

(iii) the other spouse has the right tochoose the assets which shall constitutehis or her moiety. If such right is exercised,notice thereof shall be given to thecreditors who may object to the choicegiving the grounds on which suchobjections are based.

(b) Where the court upholds the objectionof the creditors, the court shall order that asecond valuation of such assets as have notbeen properly valued be done by threevaluers appointed by the aggrieved spouse,the creditor and the court.

(c) When the second valuation modifiesthe value of the assets chosen by theaggrieved spouse, he/she may within 10days from the conclusion of the appraisal,withdraw from the choice exercised.Thereupon, the moieties shall be allotted bydraw of lots.

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 survivingspouse.— (1) Where the inventory of apredeceased spouse is concluded, theinventory on the death of the surviving spouseshall be continued in the former inventoryproceeding.

(2) In the event there are additional assetsin the proceeding referred to in sub-section(1), their serial number shall be in continuation



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of the last item in the former inventoryproceeding.

(3) Where, after allotment or after the deathof the surviving spouse, inventory proceedingis instituted, the assets which have beenalready valued in the prior inventory need notbe valued again in the subsequent inventory,unless there are strong grounds to believe thattheir value has changed. In the event ofchange of value of currency, such change shallbe taken into consideration. In addition tothe valuation already made, due descriptionof assets previously made shall be retained.If separate inventory is filed, the descriptionshall be reproduced in the separateinventory.

371. Additional partition.— (1) Where, afterthe conclusion of an inventory, it is found thatsome assets are left out, such omission per seis not a ground to set aside the partition. Anadditional partition shall be effected of theassets left out in the same proceeding if theparties do not opt for partition by Deed. In noother case, the inheritance shall be partitionedpiecemeal.

(2) Where, at the time of the inventory onthe death of the surviving spouse, it is foundthat some assets were left out in the inventoryof the predeceased spouse, such assets shallbe described and partitioned in the inventoryof the surviving spouse.

372. Inventory in the event of dissolution of

joint family.— (1) When a joint family as

governed by Decree dated 16-12-1880 is

dissolved, the estate may be partitioned by

instituting inventory proceeding and the

procedure hereafter provided shall be

applicable.

(2) The member of the joint family who wasin the charge of management of its assets shallbe the head of the family.

(3) The general rules that regulate partitionamong co-heirs shall be applicable topartitions amongst the members of thefamily.

CHAPTER XXXV

Jurisdiction

373. Jurisdiction.— (1) The court havingjurisdiction over the place where thesuccession opens is competent to entertaininventory proceeding for—

(a) partition;

(b) declaration of a person as heir orrepresentative of the deceased.

(2) The place of the opening of thesuccession shall be determined as follows:—

(i) If the deceased had a permanentresidence in the State of Goa, the successionopens at the place of his permanentresidence;

(ii) If the deceased did not have apermanent residence in Goa, the successionopens where his immovable properties aresituated in Goa. If his immovable propertiesare situated at different places in Goa, thesuccession opens where the major part ofthese properties are situated. Such majorpart is calculated on the basis of the valueof the properties;

(iii) If the immovable properties of thedeceased who was governed by this Act aresituated partly in Goa and partly outsideGoa, the succession opens in Goairrespective of the value of the properties;

(iv) The succession of a person, who diedoutside the State of Goa, and he did not havea permanent residence in Goa, nor did heown any immovable properties in Goa buthas movables in Goa, opens at the placewhere major part of the movable assets arelocated;

(v) If the deceased did not have apermanent residence nor immovableproperties in Goa, the succession opens atthe place where he died in the State of Goa.

(3) The rule that the Court competent toentertain the inventory proceeding is theCourt where the inheritance opens is subject


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to the exceptions that the court in which theinventory was instituted upon the death of oneof the spouses shall have jurisdiction toentertain the petition for inventory which mayhave to be initiated upon the death of thesurviving spouse, unless the marriage iscontracted under the regime of absoluteseparation of assets.

374. Consolidation of inventories.— (1) Itshall be lawful to consolidate inventories inorder to partition assets comprised in differentinheritances:—

(a) when the persons among whom theproperties are to be partitioned are thesame;

(b) when the inheritances left by both thespouses are to be partitioned.

(2) Where the partition is dependent uponone or more other partitions:—

(i) If the dependence is total because inone of the partitions there are no assetsother than those, which are to be allotted tothe deceased in the other, the applicationfor consolidation shall not be refused;

(ii) If the dependence is partial becausethere are other assets, the application forconsolidation shall be decided, taking intoconsideration the interests of the partiesand the smooth course of the proceeding;

(3) Lack of pecuniary or territorialjurisdiction to entertain one of the inventoriesshall not be a bar to the grant of an applicationfor consolidation even if, in one of theinventories, there are heirs under disability.

CHAPTER XXXVI

Head of the family

375. Petition.— (1) Inventory proceedingshall be instituted by presenting a petition.Such petition may be presented by theinterested party in person or through a dulyconstituted attorney. Any party or, where aparty is subject to orphan’s jurisdiction, thepersonal representative of the person under

disability shall present the petitionaccompanied by the death certificate of theestate leaver.

(2) Where the death of the estate leaver hasnot been registered, other admissible evidencemay be adduced.

(3) The words “interested party” mean heir,moiety holder of the deceased, the executorin a Will where there are minor, interdicted orabsent heirs or legatees and the persons whohave the right to usufruct of a part of theinheritance without specifying its value or thething, and also the executor.

(4) The petition shall set out the name,address, locus standi of the petitioner, the nameof the estate leaver, facts determining thejurisdiction of the court, value of theinheritance, identification of the person whowill discharge the functions of the head of thefamily and whether there are heirs subject toorphan’s jurisdiction.

376. Order of appointment of head of thefamily.— (1) When the petition is duly filed,the court may hold an inquiry to decide whoshall hold the office of head of the family andshall upon considering the petition anddocuments accompanying it, appoint a personas the head of family and notify him to takeoath that he shall discharge his dutiesdiligently and faithfully and make a declarationstating:—

(i) the name and status of the estate leaver,date on which and the place where he died;

(ii) the name, status, age and capacity ofthe heirs, testamentary or legal, withoutexcluding those who are known to havebeen conceived and the degree of kinshipof the legal heirs;

(iii) whether the estate leaver has left aWill or a Gift and, if so, the head of the familyshall produce the original or a certified copyof the Will or of the Gift deed;

(iv) whether the estate leaver wasmarried and, whether there was an ante-



763

nuptial agreement and if so, he shallproduce a certified copy of the agreement;

(v) where a party is subject to orphan’sjurisdiction, the names of persons who shallconstitute the family council. The court mayaccept or reject the proposed names;

(vi) whether there are assets to becollated and give the names of theconferees. The head of the family shallalso give the names and addresses of thelegatees and of the creditors;

(vii) what are the assets of inheritance.

(2) At the time of the head of the familymakes the declaration, he shall produce thecertified copy of the renunciation Deed if any,and such other document as may be relevantto the case.

(3) Where the head of the family makes areference to any document in his declaration,he shall, whenever possible, give particularsin respect of date of the original document,place where drawn or registered and thenumber of registration with book number andpage.

(4) The declaration of the head of the familymay be made by affidavit, copies of which shallbe supplied to all the interested parties andmay be accompanied by a list of assets and bydocuments.

377. Inquiry for appointment of head of thefamily.— Where the court is satisfied upon aperusal of the declaration the personappointed as head of the family that the officebelongs to another person, the court shall,upon inquiry, if necessary, appoint such otherperson as the head of the family.

378. Evidentiary value of the declaration ofthe head of the family.— (1) The declarationsof the head of the family, given both initiallyand subsequently, are presumed to be trueuntil the contrary is proved, unless they aremade in his own interest or they are in respectof facts which are required by the law to beproved in a par ticular manner or which

require the agreement of all or of the majorityof the parties.

(2) The function of the head of the familyshall not be performed through a constitutedattorney, unless there is no other interestedparty available in the country for suchappointment, or if all the parties or theirrepresentatives consent to such appointment.

(3) Where the functions of head of the familyare performed by a constituted attorney, suchfunctions, including statement made, shallbind the principal and he shall be held liablefor all legal consequences as if such acts ofcommission or omission were performed byhim.

379. Rights and Duties of the Head of thefamily.— (a) The head of the family, as managerof the estate, shall receive all income andprofits of the assets in his possession and shallmeet the normal liabilities of the inheritanceand shall every year render accounts to thecourt, in the miscellaneous proceeding, incase the usufruct of the assets does not belongto him.

The head of the family is bound to renderaccounts from the date he takes charge of theassets of the inheritance and to deposit thebalance amount in a Nationalized Bank, afterthe amount required to meet the expenses formanagement of the assets is deducted. Anysum handed over to the heirs under section252 shall be included in the expenses.

(b) The head of the family shall not alienateany of the assets of the inheritance except fruitsand other perishable articles. However, thehead of the family may create a lease of atemporary nature which shall come to an endupon the conclusion of the inventoryproceeding.

(c) The head of the family shall be bound todefend and protect the estate.

(d) The head of the family shall take suchlegal steps as may be necessary to recoverdebts payable to the inheritance when they


764

are likely to become time barred, and in casethe head of the family files a suit for recoveryof a debt, any of the co-heirs may apply to thecourt that he be made a party to theproceeding.

(e) The creditors of the inheritance may suethe head of the family to secure a preventiverelief. But, in a matter relating to title to theproperties or to recovery of debts, he shall notbe so sued without impleading all the co-heirs.

(f) The head of the family is entitled to bereimbursed for the expenses incurred by himon account of the estate, with interest thereon;but he shall not be liable to pay interest inrespect of the amount received by him onaccount of the estate, except from the time heis in default.

380.Concealment of assets by head ofthe family.— Assets are deemed to beconcealed when the head of the familyfraudulently does not include an asset of theinheritance in the list of assets or denies thatsuch asset is part of the inheritance and acomplaint is made to the court in this regard.

381. Consequences of concealment.— (a)Where the head of the family has concealedassets, he shall forfeit any right he may haveto the assets concealed in favour of the otherheirs.

(b) Where the head of the family hasconcealed the title deeds necessary to knowthe nature or the charges of the assets, he shallbe liable for damages resulting from suchconcealment.

382. Consequence of giving a list of

assets based on false documents.— Where the

head of the family has included in the list of

assets and liabilities, credits, rights or charges

based on sham, false or forged documents, he

shall be liable for the damage caused.

383. Duration of office of head of thefamily.— The head of the family shall continueto manage the estate till the order ofhomologation becomes final.

384. Removal of the head of the family.—(1) The head of family may be removed whenhe,—

(i) delays in filing the list of assets andliabilities;

(ii) fails to indicate to the valuers theassets which are to be evaluated;

(iii) does not appear in court, whenrequired;

(iv) does not produce the requireddocuments;

(v) does not give declarations orstatements which are required from him; or

(vi) does not manage the assets with zealand prudence;

(vii) in any other manner fails to dischargethe duties of the office.

(2) Any party or, in case the inventory isof orphan’s jurisdiction, the personalrepresentative, may apply for the removal ofthe head of family. The court shall then hold asummary inquiry with a short notice to thehead of the family wherein not more than 3witnesses shall be examined by either side.

(3) When the head of family is removed,another shall be appointed in accordancewith this Act and the provisions of section 376shall be thereafter complied with.

(4) Where the cause for the removal of thehead of the family is his failure to do an act forwhich he was duly notified, the head of thefamily shall be liable to be punished fordisobedience of order of the court as providedin Order XXXIX Rule 2-A of the First Scheduleto the Code of Civil Procedure, 1908 (5 of 1908).

(5) Where the removal takes place after thefamily auction (licitation), the successfulbidders may apply that the respective assetsbe delivered to them. The successful biddershall be considered to be the head of the familyin respect of the assets, which are deliveredto him.

(6) The above provisions shall be applicableto the person who has the duty to collate, andfails to discharge his duties of special head of



765

the family in respect of the assets which hehas to collate.

385. Discharge of the head of the family fromholding office.— (1) The head of the family mayapply that he may be discharged from holdingthe office:—

(a) when he is seventy years of age orabove;

(b) when he is unable to perform hisfunctions properly on the grounds of illhealth;

(c) when he resides outside thejurisdiction of the court;

(d) when the functions as head of familyare incompatible with the functions of thepublic post he is holding.

(2) The application for discharge shall bedecided upon a summary inquiry.

CHAPTER XXXVII

Hearings

386. Hearings in the inventory proceeding.—(1) All hearings in the inventory proceedingshall be in open court and a record (roznama)of every hearing shall be maintained.Whenever the court prepares a chart ofpartition, preliminary chart of partition orother document, the same shall be preparedexpeditiously and a copy thereof shall besupplied to the parties or their Advocates, onthe next date of hearing.

(2) Copies of the list of assets and of allapplications, written replies and objectionsfiled by a party, shall be supplied by such partyto the other interested parties present for thehearing, and their acknowledgment of receiptbe obtained.

387. Prosecution of inventory.— (1) Wherethe court is satisfied upon perusal of thedeclaration of the head of the family that thereis no ground for the inventory to proceed, thecourt shall drop the proceedings after hearingthe head of the family.

(2) Where the court is satisfied that theinventory is maintainable, it shall fix a date forthe submission of the list of assets and forproduction of such documents, which the headof the family was unable to produce earliernotice of which shall be given to the head ofthe family.

(3) The court shall order that first summonor original process be served on the moietyholder of the estate leaver, on the heirs, on theirspouses, unless they are married under theregime of absolute separation of assets, on thelegatees and the creditors. Summon is notrequired to be served on the head of the family,notwithstanding that he is an heir orrepresentative of an heir.

(4) Notice shall be issued to the donee,whether he is bound to collate or not, to appearon the date fixed for taking oath that he willdischarge his duties as special head of thefamily in respect of the assets which havebeen gifted to him.

(5) Failure to serve the first summon on theheirs, or on their spouses, or the moiety holdershall render all proceeding subsequent to theinitial petition null and void. The applicationfor annulling the proceeding may be filed inthe inventory court at any stage of the nullityis discovered.

(6) Where a mandatory inventory has beeninstituted on the ground that a party is absent,if the court is satisfied, upon perusal of thedeclaration of the head of the family and afterhearing the applicant, or on the basis of officialinformation, that the party is at a specific placewithin the country, or in a foreign country,such proceeding shall be dropped.

(7) Where the head of the family declares,or record discloses, that there are unknownlegatees and creditors, they shall be servedby substituted service by affixing the summonin some conspicuous place in the court house.

(8) The first summon shall bring to the noticeof the parties the next date of hearing, on orbefore which, they may file objections, if any,


766

and such summon shall be accompanied by acopy of the declaration of head of the family oflist of assets, if any, submitted by the head ofthe family.

(9) When any of the interested parties isunder disability, the court shall appoint apersonal representative for him before orderingthe issuance of first summon.

388. Proceeding in absentia.— The inventoryshall proceed in the absence of the parties who,after having received the first summon ornotice of the proceeding, do not attend thecourt personally or through their advocatesand said parties shall not be entitled to anyfurther notice of any stage of the proceeding.However, such parties, who reside within thejurisdiction of the court, shall be given noticeof the licitation and homologation at theregistered address. Unless after the service ofsummon, a party files a memo of his registeredaddress within the jurisdiction of the court,which is different from the address given bythe head of the family, the latter shall bedeemed to be registered address of the party.Where a party files a registered address, heshall state the house number, street name,ward name, village or city.

389. Parties under disability.— (1) A partyunder disability shall be represented in theinventory by his natural guardian. A guardianad litem shall be appointed to represent a partyunder disability only when his naturalguardian representative has an adverseinterest.

(2) A curator ad litem shall also be appointedto represent a party absent at an unknownplace, when the said party does not put inappearance or when no curator has beenearlier appointed to look after his interest.

(3) When the party under disability can berepresented by his parents, no family councilshall be appointed and its functions shall beperformed by the parents.

(4) Where the inventory proceeding areconcluded and it is necessary to make a

provision for the management of the assetsallotted to a person absent at unknown place,the said assets shall be entrusted to the curatorad litem who has been already appointed,upon his furnishing a security, when deemednecessary. Such curator shall have powers tomanage the assets only and has the duty toact as a prudent man and he shall renderaccounts every year.

(5) Where a personal representative isalready appointed by a competent court undera special law, such personal representativeshall be personal representative for theinventory proceeding. Where such personalrepresentative has an adverse interest to suchparty, the court shall appoint a guardianad litem.

(6) Where the disability arises from insanity,the insanity shall be proved by a certificateissued by the Director of any Institute ofPsychiatry and Human Behaviour, where theparty is an internee of such an Institute. Inother cases, the insanity shall be proved bycertificate issued by two Psychiatrists or byreferring the concerned party to the nearestInstitute of Psychiatry and Human Behaviour.

390. Discharge of guardian, etc.— (1) Whenthe guardian, guardian ad litem, curatorad litem, member of the family council, or theadministrator wishes to be discharged as such,he shall present an application giving thegrounds for seeking discharge and file a list ofwitnesses and documents on which he relies.

(2) The court shall, after recording evidence,if necessary, and hearing the parties, passappropriate orders.

391. Discharge or removal of guardian, etc.—(1) Any member of the family council, orrelative or the guardian up to the sixth degree,may apply on grounds set out in the applicationthat the guardian be discharged or removedfrom office.

(2) The respective guardian shall be givennotice to give his say and upon hearing theparties the court shall pass appropriate orders.

392. Composition of the family council.— (1)The family council shall consist of three



767

members, wherever possible, one from thepaternal side, second from the maternal sideand third one from either side.

(2) The members of the family council shallbe chosen from amongst the relatives of theperson under disability having regard to theproximity of relationship, friendship, qualities,age, residence and interest shown by them inthe person under disability.

(3) The family council may be reconstitutedwhen a relative with better rights applies tothe court that he be included in substitutionof another member. All resolutions and actionstaken earlier by the previous family councilshall be saved.

(4) Where there is a conflict of interestbetween the person under disability and thenatural guardian, spouse or ascendants ordescendants, the person under disabilityshall be represented by a guardian ad litemappointed by the court.

393. Death of moiety holder or heir duringthe pendency of the proceeding.— (1)Inventory proceeding shall not abate byreason of death of the moiety holder or any heir.

(2) Where the moiety holder or any heir diesbefore the final disposal of the inventory, thehead of the family shall make an application tobring the heirs of the deceased on record, andafter a supplementary declaration of the headof the family is recorded, summon shall beserved on the persons proposed to be madeparties.

(3) Both the persons summoned and theparties notified may dispute the status of thepersons as heir sought to be impleaded, on orbefore the next date of hearing.

(4) If no such dispute is raised, the personsindicated by the head of the family shall beconsidered as heirs, without prejudice to theprovisions of section 395.

(5) Where any creditor or legatee servedwith summon in the inventory proceedingdies, his heirs may make an application to get

themselves impleaded by following theprocedure prescribed in section 395.

394. Challenge to the maintainability ofthe proceeding and other objections.— (1) Anyof the parties may on the date of hearing butwithin 30 days from the receipt of thesummon,—

(i) challenge the maintainability of theinventory proceeding;

(ii) contend that any of the parties to theinventory is under disability;

(iii) dispute their own locus standi or thelocus standi of any other party who hasbeen served with summon, unless they havebeen served with the summon as creditors;

(iv) challenge the competence of the headof family to hold such office;

(v) apply that the partition should berestricted to certain assets on the groundthat the remaining assets have been legallypartitioned only.

(2) The application and the objections shallalso state what evidence is proposed to be led.The Court shall, after such evidence is led andupon hearing the parties, decide the dispute.

(3) Where the challenge or dispute is raisedbefore the service of summons on all the heirs,no order shall be passed thereon withoutcompletion of the said service.

(4) When the competence of the head of thefamily appointed during the proceeding, ischallenged, the provisions of this section shallbe applicable.

395. Application to be declared interestedparty, legatee or creditor and to be made partyto the proceeding.— (1) Any person may, atany stage of the inventory proceeding, applythat he may be impleaded as interested party,legatee or creditor. Such application shall beaccompanied by documents and a list ofwitnesses relied upon.

(2) The vendee of a share in an undividedinheritance may at any stage of the inventory


768

proceeding, before the licitation takes place,apply that he may be impleaded as interestedparty and such application shall beaccompanied by documents and a list ofwitnesses relied upon.

(3) The head of the family and the partiesmay give their say alongwith documents andlist of witnesses to be relied upon. Afterrecording evidence, if any, and hearing theparties, the Court shall pass appropriateorders, including on the validity of the sale ofthe share.

396. Intended sale of a share in an undividedinheritance.— Where a co-heir or a moietyholder intends to sell his respective share ormoiety in an undivided inheritance tostrangers institutes inventory proceeding toenable the parties entitled to pre-empt toexercise their right and shall state in theapplication initiating the proceeding the priceand conditions of the proposed sale. Upon suchinventory proceeding being initiated, thecourt shall proceed to appoint the head of thefamily, and where necessary, appointguardians, curators or the family council, andthereupon, convene a conference of theinterested parties solely for the purpose ofexercising the right of pre-emption. Theprocedure laid down in section 398 shallmutatis mutandis be followed.

397. Sale of share in the undividedinheritance.— Where any of the heirs has soldhis undivided share in the inheritance to astranger, or the moiety holder has sold hismoiety, without notice to the co-heirs, theco-heirs may exercise the right of pre emptionin the inventory proceeding within 60 daysfrom the date of notice of the application bythe vendees to be brought on record.

398. Order of priority and procedure.— (1)The order of priority to exercise the right ofpre-emption shall be as follows:-

(i) all the co-heirs jointly in a conference;

(ii) the moiety holder;

(iii) individual heir.

(2) Where such an application is made bythe vendee, the head of the family or any heir

may apply to the court that a conference of allinterested parties be convened to resolvewhether all the co-heirs jointly wish toexercise their right of pre-emption in favour ofthe inheritance. Where such right is notexercised, and upon moiety holder also failingto exercise such right, the heirs may exercisetheir individual rights in accordance with thesucceeding sub-section.

(3) (a) Where more than one heir wishes toexercise the right of pre-emption, the largestshare holder shall have preference.

(b) If any interested party expressly pre-empts and, then, fails to make the payment ordeposit the price within 15 days time, he shallforfeit his right. Such failure shall be broughtto the notice of next largest shareholder, whohas exercised the right of pre-emption, and heshall have to make the payment or deposit theprice, within 15 days from the date of receiptof the notice, and so on.

(c) Where the shares are equal, all those who

applied for pre emption, shall be summoned

to appear in court for licitation. Minutes of the

licitation shall be drawn and the highest bid

of each bidder shall be recorded. The highest

bidder shall make the payment within 15 days

from the date of the licitation, failing which he

shall forfeit his right. Such failure shall be

brought to the notice of the next highest bidder

who shall have to make the payment or deposit

the price within 15 days from the date of receipt

of the notice and so on.

CHAPTER XXXVIII

Initial list of Assets

399. Initial list of assets.— (1) The assetsshall be listed by the head of the family itemwise starting with debts due to the estates,securities, actionable claims, money, foreigncoins, objects of gold, silver and preciousmetals and such other objects and thereafterall the remaining movables and livestock,the immovables,- including mortgages,



769

easements, leases and other encumbrancesthereon and lastly debts due by the estate.

(2) A space of about 5 cms. shall be keptbetween the items.

(3) Separate lists shall be prepared of theassets, which are to be valued by differentpersons and by different methods.

(4) Every page of the list shall be initialledand the last page shall be signed by the headof the family or when he does not know orcannot write, he shall affix his thumbimpressions on all pages.

(5) The assets shall be listed by giving allthe necessary particulars for their properidentification. Immovable properties shall beidentified by their land registration details,description and inscription details of sourceof title thereto, land revenue (Matriz) number,survey number, their location and area. All theshares and securities of the same type withtheir respective numbers shall be clubbedtogether in one item except those which havebeen issued by different entities.

(6) Movables of the same type for which thesame value ought to be given, taking intoaccount their material utility and condition,shall also be included in one item.

(7) Improvements made by the inheritancein properties belonging to a third party shallbe described in kind when they can beseparated from the properties in which theywere made and if they cannot be so separated,they shall be listed as debts due to theinheritance.

(8) Improvements made by third parties inthe property of the inheritance shall bedescribed as debts due by the inheritance,when they cannot be removed by the personwho made such improvement.

(9) The Head of the family besides listing theassets referred to in proceeding sub-sections,shall also state their estimated value.

400. Objections to the list of assets andother objections.— (1) Within 30 days from thedate the head of the family submits the list of

assets, the parties may raise the followingobjections:-

(a) that all assets have not been listed;

(b) that the head of the family or the doneedenies the existence of the assets in hispossession;

(c) that the head of the family or the doneedenies his duties or obligation to collate;

(d) that the head of the family or the doneedisputes that he has received assetswhich are attributed to have been receivedby him.

(2) Any party may, at any time after theexpiry of 30 days, raise objection that all theassets have not been listed, provided suchparty satisfies the court that he acquiredknowledge of the existence of the propertiesonly within the last 30 days before thepresentation of the objection. But failure toraise such objection shall not deprive the partyfrom seeking additional partition as providedin section 371.

(3) Where an objection has been raised thatall assets and liabilities have not been listed,notice of the objection shall be given to thehead of the family or the donee and they shallbe called upon to list out the assets or liabilitiesleft out or to give their say.

(4) Where the head of the family or doneewho has been served with notice of theobjections admits the existence of the assetsor liabilities and acknowledges that theybelong to the inheritance but requires time tolist them, he may apply for time for the saidpurpose.

(5) Where the head of the family or the doneedenies the existence of the assets or liabilitiesor declares that they do not belong to theinheritance, the court shall hold a summaryinquiry as deemed necessary and decidewhether the assets or liabilities should belisted.

(6) Where the dispute cannot be decidedsummarily and it is necessary to hold a


770

detailed inquiry, the parties shall be directedto file a suit, if they so desire, in respect of thedisputed asset or liability and the inventoryshall proceed in the respect of the remainingassets and liabilities.

(7) Where the head of the family or the doneefails to give his reply on the date fixed therefor,it shall be presumed that he admits theexistence of the assets or liabilities and theduty to list them.

(8) (a) Where the head of the family or theconferee denies the existence of the assets inhis possession or the duty to describe them orto collate or he dispute as to the assets whichhave been received by him, the disputes shallbe decided summarily by the court.

(b) The provisions of sub-section (6) shall beapplicable to this sub-section.

(c) Where the dispute cannot be decided inthe inventory proceeding, the head of thefamily or the donee shall not receive the assetsallotted to him without furnishing a securitycorresponding to the value of the disputedassets.

401. When co-heirs are called upon to give alist of assets.— Where the head of the familydeclares that he is unable to give a list of someof the assets belonging to the inheritance onthe ground that the said assets are inpossession of some other co-heirs, suchco-heirs shall be called upon to list themwithin such time limit as may be fixed by thecourt. Thereafter, the provisions of section 399shall be followed.

402. Deletion of assets listed in thepreliminary list.— Where any co-heir or a thirdparty claims ownership of any of the assetslisted in the inventory and applies for theirremoval from the list of assets of theinheritance, the dispute shall be decided, afterhearing the head of the family, or the personwho has listed the assets, and after recordingof evidence.

403. Disputes relating to concealment ofassets.— (1) The person who conceals the

asset is deemed to be merely in custody ofthose assets and the court may order suchperson to hand over these assets to the headof the family.

(2) The issue whether there is concealmentof properties shall be decided in the inventorywhen the dispute can be decided on perusalof the application and replies of the parties andthe documents and other material on record.

(3) Where a detail inquiry is required, thecourt shall direct the parties to file a Civil Suit,if they so desire.

CHAPTER XXXIX

Liabilities of the inheritance

404. Payment of debts of inheritance.— Theliability for the payment of debts of the estate-leaver is of the inheritance. However, after thepartition is effected, the co-heirs are liable topay the debt in proportion to the share of theinheritance allotted to them.

405. Funeral expenses.— The funeralexpenses of the estate leaver shall be paid bythe inheritance, whether there are forced heirsor not.

406. Redemption of certain encumbrancesin rem.— (1) Where immovable properties ofthe inheritance are mortgaged, or are chargedwith redeemable instalments, any of theco-heirs may, if there are funds available inthe inheritance, demands that the saidliabilities be satisfied before the partition.

(2) Where immovable assets are listed forpartition alongwith the said encumbrances, orany other charges, the assets shall be valuedas if there were no encumbrances; thereafterthe amount corresponding to theencumbrances shall be deducted and the heir,to whom the immovable property is allotted,shall pay the said encumbrances exclusively.

(3) The co-heir who has paid a commonmortgage debt or part thereof in excess of hisshare, shall by reason of the failure to deductthe encumbrance of mortgage, have only theright to recover from other co-heirs such part



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thereof as they are liable to pay, in proportionto their shares in the inheritance, even if theco-heir, who had paid it, gets subrogated inthe rights of the creditor.

407. Creditor’s claim.— (1) Any creditor maymake an application in the inventoryproceeding seeking acknowledgement andpayment of the debts due to him by theinheritance which have not been listed by thehead of the family.

(2) Such application may be made till thedate of the order as to the manner in whichthe partition is to be carried out is passed,unless the respective creditor had beensummoned to take part in the inventory.

(3) Where the respective creditor was soserved, he may put up his claim till the datethe conference of the parties for approval ofdebts, is held.

(4) Failure to do so, does not debar him fromclaiming the payment by filing a civil suit.However, in such a case, even if the defendantsdo not resist the suit, the creditor shall be liableto pay costs, whatever be the outcome of thesuit.

408. Debtor’s denial.— (1) Where any debtdue to the inheritance listed by the head ofthe family is denied by the alleged debtor, thecourt shall, upon hearing the head of thefamily and the debtor, decide if the debt shallbe retained in the list or shall be removed fromthe list.

(2) If the debt is retained in the list of assets,the debt shall be deemed to be litigious; if thesaid debt is removed from the list, the right ofthe parties to demand its payment by filing acivil suit, is saved.

409. Valuation.— (1) Where no objectionshave been raised as regards the list of assetsor the objections raised have been alreadydecided, the court shall order that the assetsbe valued as on the date of the opening of theinheritance and shall, for that purpose, appointa valuer. In the order of appointment of the

valuer, the court shall fix his fees and a datefor submission of the valuation report.

(2) The valuation shall be done by a valuerappointed by the court. The court may,however, appoint different valuers for thevaluation of various types of assets if theirspecial nature so demands.

(3) The valuer shall be served with the orderof his appointment and be furnished with therespective list of assets.

(4) The valuer shall give the value of the eachasset, as on the date of the opening of theinheritance, records such alteration or additionto the list which, in his opinion, are necessaryand give the basis for the value arrived at byhim as against each asset in the 5 centimetersspace left for the said purpose, in the list.

410. Valuation by officer of the court.—Where there are assets, the value of which canbe determined by a mere arithmeticaloperation, the file shall be referred to an officerof the court for such purpose immediately afterthe lists have been submitted and such officershall determine the value within 15 days,unless the time limit is extended by the court.

CHAPTER XL

Final list, Conference of the Partiesand Payment of Debts

411. Final list.— (1) After the valuation isfinalized, the court shall fix a date forsubmission of final list of assets and liabilitiesby the officer of the court in charge ofinventory proceeding, indicating their values.

(2) As regards movable of small value,notwithstanding that they are of differentnature, lots shall be made so that, as far aspossible, in each item, assets of the value ofnot less than Rs. 500/- are included.

412. Division by metes and bounds.— (1)Where the inheritance comprises, amongother assets, of divisible immovable propertiesother than residential houses, any party may,after the final list of assets is made, apply thatthe said immovable properties be divided by


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metes and bounds in accordance with theshares and be allotted to the respectiveinterested parties. Two or more interestedparties may state that they agree to take a jointsub divided plot. Where divided plots areequal in area, lots shall be drawn for thepurposes of allotment.

(2) Where an application for division bymetes and bounds is made, the court shallappoint a commissioner who shall submit areport stating whether the immovableproperties are divisible in accordance with therules and regulations relating to sub divisionof lands in force. Where the properties aredivisible, he shall sub divide them into plots.Where the commissioner submits a report thatany immovable property is not divisible,such immovable property shall be put tolicitation.

413. Objection to overvaluation, conference,application for licitation.— After the final listis prepared, any of the heirs or moiety holdersof the deceased may within 15 days–

(a) raise the issue that assets have beenovervalued;

(b) state whether they wish that all orcertain assets be put to licitation;

(c) apply that conference of interestedparties be convened:

Provided that where gifted and bequeathedproperties are to be returned to the mass ofthe inheritance on the ground that they areinofficious, the party may apply for licitationtill the date fixed for giving their say on howthe partition should be effected.

414. Who may decide on behalf of personsunder disability.— (1) The family council shallbe convened, when it has to resolve whetherthe persons under disability should apply thatthe assets be put to licitation and whether theyshould participate therein.

(2) The resolution of the family councilshall be included in the minutes of the

conference.

415. Conference of the interested parties.—(1) The conference of the interested partiesshall be convened by the court upon its ownmotion to resolve on the approval of the debtsand the mode of their payment, allotment ofemphyteusis as a unit to one person, over-valuation of properties, objections regardinginequalities of the lots and on any doubts ordifficulties which may have a bearing on thepartition.

(2) The members of the family council shallbe given notice of the date of the conference,where the inventory is subject to orphansjurisdiction, and they have to intervene toresolve on the approval of debts and mode oftheir payment and on the allotment ofemphyteusis as a unit to one person.

(3) The resolution passed by the interestedparties present at the conference is bindingupon those who did not attend it, unless suchparties were not given notice of theconference when such notice ought to havebeen given to him.

416. Debts payable by the inheritance andmode of payment.— (1) Debts payable by theinheritance, listed or claimed, which areapproved by the interested parties who aremajor of age and by the family council and bythe parents on behalf of the minors, are deemedto have been judicially recognized, and thecourt shall in the order confirming thepartition, direct their payment if the amountshave not been paid before such order.

(2) When the law requires that the debtshould be proved by documentary evidenceof a certain probative value, the family councilor the representatives of the persons underdisability shall not approve the debt, unlesssuch document or any other document of equalor of higher evidentiary value, is produced.

417. Power of the court to decide on debts.—Where the parties who are of major in age andthe family council or the parents of the minors,object to the approval of the debt claimed, thecourt shall, notwithstanding their objection,recognize its existence, provided the creditor



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produces sufficient documentary evidence forthe said purpose, unless the document ischallenged as being forged or evidence ofequal or of higher probative value is producedwhich disproves it or where questions, whichrequire a detailed inquiry, have been raised.

418. Disagreement on the approval ofdebts.— (1) Where there is disagreement onthe approval of debts, listed or claimed,amongst the interested parties who are ofmajor in age or between them and the familycouncil or parents of the minors, the debt isdeemed to have been recognized to the extentof the share of those who approve them.

(2) The creditor shall have to file a suit forthe recovery of the balance amount, unless theexistence of the debts can be proved asprovided in the preceding section.

419. Payment of debts fallen due.— (1) Thedebts which have already fallen due andare approved by all the interested parties,shall be paid immediately in case thecreditor demands their payment. Where theinheritance does not have sufficient funds, thecourt shall order that the assets be sold for thesaid purpose by public auction. The courtshall determine which are the assets to be sold,when there is no agreement in that respectamongst parties who are of major in age orbetween them and the family council and theparents of the minors.

(2) If the creditor wishes to receive thepayment in assets set apart for sale, the saidassets shall be adjudicated to him for the pricewhich has been fixed by the court.

(3) A private sale shall be held in case allthe interested parties agree, or in case of amandatory inventory, the court so decides,after hearing the family council and thepersonal representatives of the minors.

(4) When the assets are to be sold by privatesale, the interested parties or the Court shallappoint a person and empower him to sell andshall fix the minimum price. The appointedperson shall carry out the sale accordingly andsubmit his report to the Court.

(5) Movables shall be sold by auction at theplace where they are lying or in a nearby place

where they may be transferred withoutcausing damage or heavy expenses.

(6) Where an irregularity is committedduring the auction or it is discovered thatassets have been fraudulently described andsuch fraudulent description has caused graveinjury to any party, objections may be filed bysuch party and the court shall decide on theobjections, after recording such evidence asis deemed necessary. If the court is satisfiedthat irregularities materially vitiating theauction have been committed, the auctionshall be set aside.

(7) The court may then hold the auction inthe court premises or the assets may be soldby private sale.

(8) The preceding provisions shall apply alsoto debts which were approved by the court inaccordance with the provisions of sections 416and 418, in case the respective order hasbecome final and no appeal has been preferredbefore the chart of partition is drawn up.

420. When debts are approved by some ofthe interested parties only.— Where a debt hasfallen due but it is approved by some of theinterested parties only, the creditor maydemand from such parties payment of theircorresponding share of the liability. Thepayment shall be effected immediately, wherethere are funds, out of the shares of thoseparties who have approved the debts; wherethere are no funds, the payment shall be madeout of the assets allotted to such parties afterpartition.

421. Resolution on mode of payment ofdebts.— (1) Notwithstanding that thecreditors do not demand the payment of thedebts which have fallen due and are approved,the parties may resolve on the mode ofpayment, either by setting apart money orproperties for the said purpose entrusting thepayment to one or some of them, or decidingthat the debt shall be shared by them inproportion to the assets allotted to them.

(2) The parties may also resolve on the modeof payment of the debts which have beenapproved but have not yet fallen due.


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(3) The resolution, which entrusts thepayment to one or some of the parties, binds

the creditors but where the creditors do not

get fully paid with the properties handed over

to the party or parties entrusted with the

payment, the creditors may attach the

properties adjudicated to the other interested

parties.

(4) Where the debts have been approved by

some of the parties only acting for themselves,

by the family council or by the parents of the

minors, only they can resolve on the mode of

payment.

422. When do legatees decide on the mode

of payment of debts.— The legatees may

resolve on the liabilities and the mode of their

payment, only when the entire inheritance is

distributed by way of legacies or when the

approval of debts will result in reducing the

legacies.

423. Insolvency.— Where the debts

approved by the parties or recognized by the

Court exceed the mass of the inheritance, the

procedure laid down in the law of insolvencyin force shall be followed.

424. Emphyteusis.— Where an emphyteusisforms part of the inheritance, it shall beresolved to whom the emphyteusis shall beallotted as one unit. If none of the partieswishes to have the emphyteusis, theemphyteusis shall be sold and the proceedsshall be divided. Where the parties do notagree as to whom the emphyteusis should beallotted, the emphyteusis shall be put tolicitation.

425. Overvaluation of assets.— (1) Whereany of the parties contends that the valuegiven to any of the assets is excessive, he shallstate which according to him is its fair valueand the interested parties shall in theconference resolve as whether the valueshall be maintained or decreased. In the lattercase, the value shall be fixed in suchconference.

(2) But, where a party declares that heaccepts the thing for the value given to it, thevalue shall not be decreased. Such adeclaration shall amount to licitation. Wheremore than one party accepts the valuation,licitation shall be held amongst them and thething shall be adjudicated to the highestbidder. In case the parties are unable to fixthe value, the value given shall subsist.

(3) The objection regarding overvaluationmay be raised orally during the conference.

CHAPTER XLI

Licitation

426. Licitation of asset which is notsusceptible to division without detriment.—(1) Where any party to the proceeding appliesthat an asset, which by its nature is notsusceptible to division without detriment, beput to bid but, any co-heir having a major sharein it other than by reason of marriage,succession, Gift or bequest by the person wholeaves the inheritance and such co-heirobjects to the licitation, then the licitation shallnot be held. In this eventuality, the party mayapply for a second valuation.

(2) Second appraisal may also be madewhen the said co-heir applies for a secondvaluation on the ground that the thing inwhich he has the major share, has beenovervalued.

(3) The head of family may, at the time hesubmits the list of assets, raise the issue ofindivisibility of the properties and, if he raisessuch an issue, the valuer shall give his opinionon the divisibility at the time of the valuation.When such an issue is raised at a later stageand there is no agreement between theparties, the issue shall be decided afterhearing the valuer.

(4) Where the thing is not subject tovaluation the question of indivisibility shall,in the absence of agreement, be decided bythe court after the expert appointed by thecourt inspects the properties and gives hisreport.



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(5) The provisions herein contained are alsoapplicable where there are no forced heirs andthe estate leaver has gifted to one of theco-heirs, legal or testamentary, a major sharein the thing which, by nature and withoutdetriment cannot be divided and so also wherein terms law or by reason of a contract, thethings cannot be put to licitation or bid.

427. Licitation of gifted assets.— (1) Whenany party applies that assets gifted by theestate leaver be put to licitation, and the donee,irrespective of whether he has to collate or not,object to the gifted thing being put to bid, asecond valuation of the respective assets shallbe ordered to be done. The objection of thedonee, if any, may be filed within 30 days ofthe service of the application.

(2) After the second valuation is done andthe licitation of the other properties is over, theapplication shall become ineffective where itis found that the donee is not bound to returnany property.

(3) Inofficious Gifts: Where the court findsthat the Gift is inofficious, the followingprovisions shall be followed:—

(a) Where the application is in respect ofan asset which is susceptible to division,licitation in respect of the part which thedonee has to return may be held but thedonee shall not be allowed to take part inthe licitation.

(b) Where the application pertains to anasset which by its nature is not susceptibleto division without detriment, licitation maybe held and the donee is allowed to takepart in it.

(c) If none of the preceding provisions ofthis chapter are applicable, the donee shallbe permitted to choose such of the giftedassets as are necessary to fill up his sharein the inheritance and the charges orencumbrances on the Gift. The donee shallreturn the properties in excess of his shareand the assets so returned shall be put tolicitation, if applied for, or has already been

applied for, but, the donee shall not beallowed to take part in the licitation.

(d) The objection of the donee, should beraised within 30 days of the service of noticeof the application if, at that time, licitation ofthe gifted assets has already been appliedfor or during the conference itself wherelicitation is applied for, and the donee ispresent. If none of the above conditionsare satisfied, the donee shall be notifiedbefore the licitation to raise his objectionwithin 10 days.

(4) Irrespective of any application referredto in this section, the donee may apply for asecond valuation of some or all the giftedassets, within 30 days from date of notice ofthe first valuation, it is found that the Gift isinofficious.

428. Licitation of bequeathed assets.— (1)Where any party applies that the bequeathedassets be put to licitation, the legatee shall benotified to give his say, if any, within three days.

(2) If the latter objects, no licitation shall beheld, but it is lawful to the heirs to apply forsecond valuation of the assets, when theundervaluation of the assets may affect themadversely, within 30 days from the date ofobjection.

(3) Where the legatee does not object, thelicitation shall be held and the legatee shallhave a right to the respective value.

429. When licitation is to be held.— (1) Thelicitation shall be held within 30 days from thedate the conference is held, if possible.

(2) Every licitation shall be conducted byan officer appointed for the purpose by thecourt. However, such officer shall not declarethe highest bidder without the leave of thecourt.

(3) It is lawful to withdraw the request tohave licitation till such time the respective itemis put to bid; in such an event, however, anyother party shall be allowed to apply forlicitation on the same item.


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430. Licitation defined.— (1) Licitation is afamily auction in which only heirs and themoiety holder spouse of the estate leaver, or ofthe deceased heir are allowed to participate,except in cases where, in terms of thepreceding section, the donee or the legateeshould also be allowed to make a bid. Such ofthe properties of the inheritance which are notnecessarily to be allotted to any particularparty, only may be put to licitation.

(2) The constituted attorney of a personentitled to participate in the licitation may bidon his behalf provided specific powers for suchpurpose have been conferred on him by thepower of attorney. The power of attorney or atrue copy thereof duly certified by a notarypublic shall be placed on record.

(3) Each item as described in the final listshall be put to bid individually, unless allparties agree to form lots for that purpose, orwhere there are some properties whichcannot be separated without inconvenience.Different parties, may, by agreement, offer abid over the same item or lot so that may beallotted to them in common. Such a bid shallbe deemed to be one indivisible bid and theparties shall be jointly and severally liable topay or deposit the entire bid amount.

(4) Once the parties have struck downan asset in the licitation, they cannot resilefrom it.

(5) Immediately after the licitations are over,the parties who have struck down assets areentitled to request the court to hand over thepossession of the respective assets to themsubject to the decision passed in appeal, if any.

(6) Licitation is not a sale in law but a merepartition of the assets of an inheritance. Eachheir shall be deemed to be the sole successorof the assets allotted to him from the date ofthe opening of the inheritance.

431. When licitation may be annulled.—Where the Court is satisfied that the interestof any party under disability have not beenproperly taken care of by his personalrepresentative during the licitation, the court

may within 2 weeks from the date of licitation,after hearing the parties, annul the respectiveauction by a reasoned order.

CHAPTER XLII

Second Valuation

432. Second valuation.— (1) Where the firstvaluation discloses that the legacy isinofficious, the legatee may, within 30 days ofthe notice of first valuation irrespective of theapplication referred to in section 428, apply forsecond valuation either of the bequeathedproperties or of any other properties whichhave not been valued for the second time.

(2) The legatee may also apply for secondvaluation of other properties of the inheritancewhen it is found, on the basis of secondvaluation of bequeathed properties and of thelicitation, that the legacy has to be reducedon the ground that it is inofficious. The assetswhich have been auctioned shall not beexcluded from second valuation, if the valuegiven in the second valuation is higher thanthe highest bid offered in licitation. Theauctioned assets shall be allotted on the basisof second valuation and not on the basis of thehighest bid in licitation.

433. Inofficious legacy.— (1) Where thelegacy is inofficious, the legatee shall returnthe excess in specie. Such excess may besubject to licitation in which the legatee shallnot be allowed to participate.

(2) Where the bequeathed thing by itsnature or without detriment, cannot bedivided, the following shall be observed:-

(i) The return shall be made in cash,when the inofficious part is smaller than theother part, and in such a case any party mayapply for the second valuation of thebequeathed thing,

(ii) The return shall be done in specie ifthe inofficious part is equal or larger thanthe other part, and in such case the legateemay apply for the bequeathed thing be putto licitation.



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The provisions of clause (c) of sub-section(3) of section 427 shall be applicable to thelegatee also.

434. Procedure for second valuation.— (1)The second valuation shall be done by threevaluers appointed by the consent of theparties. In the absence of such agreement,each side shall appoint one valuer and theCourt shall appoint third valuer. The co-heir,donee, or legatee, referred to in sections 426,427 and 428 shall form one side and the otherparties, competent or under disability, shallform the other side. The minors and otherpersons under disability shall be representedat the time of the valuation by their parents, orby the guardians and curators.

(2) Where there are more than one co-heir,donee or legatee in the circumstances mentionin sections 426 to 428, all of them who havecommon interest shall constitute one blockagainst the other parties.

435. Scheme of partition.— (1) Upon com-pletion of valuation of assets and licitation, ifany, the heirs, head of the family, and themoiety holders shall submit to the court ascheme of partition within 30 days and thecourt shall thereafter make an order thereonshowing the mode of partition. In the saidorder, the court shall decide all questionsincluding questions which have not beendecided till then and which have to benecessarily decided for drawing the chart ofpartition.

(2) The court may, in exceptional cases,direct the parties to lead such evidence as maybe necessary to effect the partition but, if thereare questions which require a detailed inquiry,the court shall direct the parties to file a CivilSuit, if they so desire. Questions which arerequired to be decided in the normal courseof the inventory proceeding shall not be left tobe decided at the time of passing the order onhow the partition should be effected.

(3) No appeal shall lie from the orderdeciding on the mode of partition. However,such order may be challenged in the appeal,if any, preferred against the final orderconfirming the partition.

436. Procedure for filling up the shares of theparties.— The procedure hereunder shall befollowed for the purpose of filling up of theshares of the parties in the inheritance:-

(a) Gifted assets or assets struck down inthe licitation shall be allotted to therespective donee or bidder.

(b) Assets of the same kind and nature asthe properties gifted or struck down in thelicitation shall be allotted to the parties whodo not collate or to the parties who are notthe highest bidders.

(c) When it is not possible to satisfy theco-heirs with assets of the same kind andnature, where the gifted assets areimmovable, the said co-heirs shall beentitled to be identified in money and, if thereare no fund in the inheritance, as manyassets as may be necessary to secure thesum due, shall be sold in public auction.

(d) However, if the gifted assets aremovables, the co-heirs shall be entitled tobe satisfied with other movables of theinheritance according to their value.

(e) The same principle shall be followed ifsome heirs have received legacies, tocompensate the co-heirs who have notreceived legacies.

(f) The remaining assets shall bedistributed by drawing lots amongst theparties, after forming equal lots.

(g) Debts due to the inheritance which aredisputed, debts which are not sufficientlyproved, and assets which have no valueshall be distributed proportionately amongstthe parties. Debts due by the inheritancewhich have been approved by all theparties, shall be allotted proportionately,unless a different mode of payment is agreedupon.

CHAPTER XLIII

Chart of Partition

437. Chart of Partition.— (1) After the courtpasses the order on the scheme of the partition,


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the clerk of the court shall draw a chart ofpartition within 10 days, complying with theorder and the provisions of the precedingsections, subject to the provisions of section436.

(2) The chart shall be drawn in the followingmanner:—

(i) The total amount of assets shall bedetermined by adding the values of eachkind of assets as attributed to them in thevaluation and in the licitation and bydeducting debts which have to be paid byinheritance, legacies and encumbranceswhich ought to be reduced;

(ii) The amount of the share of each partyshall be worked out and also the part whichis allotted to the party in each type of asset,shall be shown lastly;

(iii) The allotment of each share will bedone by referring to the number of the itemin the final list of assets and liabilities.

(3) The lots which have to be drawn bysortition shall be designated by alphabeticalletters.

(4) The values shall be indicated by figuresonly. The numbers of the items of the final listof the assets and liabilities shall be shown infigures and in words and when they arecontinuous, only the terminal numbers withinwhich the numbers are comprised shall berecorded.

(5) Where a fraction of the items has beenallotted to the co-heirs, such fraction shall bementioned.

(6) In each lot, the nature of the assets ofwhich it is comprised, shall be shown.

(7) The court shall initial every page of thechart of partition and confirm by a note, thecorrections, erasures or interlineations.

438. Preliminary chart.— (1) Where, at thetime of drawing the chart, the clerk of the courtfinds that the properties gifted, bequeathedor struck down in the licitation exceed theshare of the respective party or the disposableportion of the estate leaver, he shall prepare a

preliminary chart indicating exactly what isthe amount in excess.

(2) Upon perusal of the preliminary chartsubmitted by the clerk of the court, the courtshall issue the following directions:—

(a) Where admidst the properties giftedto a co-heir, there is an indivisible propertywhich does not fit as a whole in the shareof the donee, the court shall direct that suchproperty shall form part of the mass of thepartible properties as any other property ofthe inheritance;

(b) In other cases, the court shall issuenotice to the donee to exercise within 10days his right to choose from amongst thegifted properties those necessary to makeup his share in the inheritance and, if he failsto exercise such choice, his share shall befilled with such properties as the courtdeems fit;

(c) Where the gift made to a stranger isinofficious it shall be reduced in accordancewith sections 111 to 121 of this Act;

(d) The court shall notify the unsuccessfulbidders, and those who did not take part inthe licitation, who are to be paid oweltymonies by the successful bidders, to demandwithin 10 days the payment of the oweltymoney, if they so desire, unless such amounthas already been deposited; Where thepayment is not demanded, owelty moneyshall carry an interest @ 5% p.a. from thedate of the final order confirming thepartition and the creditors shall have a lienon the properties allotted to the debtor. Ifthe demand is made, the successful biddershall be notified to deposit within 15 daysthe amount due and, if he fails to pay, thelicitation shall stand cancelled and the courtshall fix a fresh date for licitation. The partywho has defaulted in paying owelty moneyshall not be allowed to participate in thenew licitation.

(3) When two or more parties have made ajoint bid for a property, they shall be jointlyand severally liable for the entire owelty



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amount and in the event the entire oweltyamount is not paid or deposited within time,the licitation shall stand cancelled in respectof the entire property and none of thedefaulting parties shall be allowed to take partin the new licitation.

439. Rectification.— (1) The parties may, ifnecessary, within 10 days after the pre-liminary chart is drawn, apply for rectificationof the partition or may object that the lots arenot equal or that the order directing thepartition has not been complied with. Suchobjection shall be decided within the next 10days. The conference of the parties may beconvened if the objection is as regards theinequalities of the lots.

(2) The order upholding the objection shalldirect that the necessary modification be madeto the chart. If necessary, a new chart ofpartition shall be drawn up.

440. Sortition.— Upon disposal of objectionsto the preliminary chart, lots shall be drawn,if required. Each lot shall be identified by analphabetical letter, which shall be written onpieces of papers and placed in a box. At thetime of drawing of the lots, first preference shallbe given to the moiety holder of the estateleaver. So far as the co-heirs are concerned,the order of priority shall be alphabetical orderof their names, starting with first name. TheJudge shall draw lots on behalf of the partieswho fail to remain present for the sortition. Thename of the party to whom the lot falls shallbe recorded in the file. After the draw of lotsis over, the parties are free to exchangebetween themselves the lots, which havefallen to them. However, to exchange the lotsfallen to the persons under disability, thecourt’s permission has to be obtained. In thecase of a prodigal, so declared by the court,the exchange shall not be permitted, unlessthe prodigal consents thereto.

441. Second and third chart of partition.—

Second chart

(1) When the moiety holder of the estateleaver, is a party, the chart shall consist of two

portions and after the portion of the estateleaver is ascertained, a second chart shall bedrawn for partitioning the said portionamongst the heirs.

Third chart

(2) Where, by reason of the right ofrepresentation, the shares are unequal, afterdetermining the share of the person who isrepresented, a third chart shall be drawn topartition the shares amongst the repre-sentatives.

(3) When any heir is benefited with a majorpart of properties, the lots shall be formed, ifpossible, in such a way that the draw of lotsamongst the other co-heirs be done out ofequal portions.

(4) Where it is not possible to draw thesecond chart and have a sortition in respectof the second chart at the time sortition of lotsof the first chart is made and so also when it isnot possible to have a sortition of the lots ofthe third chart at the time the sortition of thelots of the second chart is made, the provisionapplicable in relation to the first chart shall befollowed, both as regards the drawing of thecharts as well as regards drawing of lots ofthe second and the third chart.

CHAPTER XLIV

Confirmation of Partition

442. Confirmation of the partition.— (1) Thecourt shall make a final order declaring whoare the successors or heirs of the estate leaver,and confirming the partition in accordancewith the chart of partition and the draw of lotswithin 10 days, after evidence of payment ofduty is produced. The order confirming thepartition shall have the force of the decreeand accordingly a decree shall be drawn.

(2) The decree shall contain—

(a) the name of the original applicant andof the estate leaver;

(b) names of the heirs or legatees andcreditors;


780

(c) description of the assets;

(d) chart of Partitions;

(e) outstanding debts due by theinheritance or heirs including their approvaland mode of payment;

(f) order confirming the partitions.

(3) A party to an inventory proceeding mayfile a certified copy of the partition decree withthe Registering Officer under the RegistrationAct, 1908 (16 of 1908), within the local limits ofwhose jurisdiction the whole or any part of theassets is situated and such officer shall filesuch decree in Book No. 1 maintained undersection 51 of the Registration Act, 1908 (16 of1908).

443. Costs.— The costs of the inventory shallbe paid by the heirs and the moiety holder, inproportion to what they have received and,where the inheritance is distributed by wayof legacies only, the legatees shall be liable forthe payment of costs in the same proportion.

444. Safeguards to be observed when theassets are delivered before the order ofhomologation becomes final.— An interestedparty may receive the assets which have beenallotted to him in the partition before the orderof homologation becomes final; however, theassets shall be handed over only upon suchparty furnishing security, in case of negotiableinstruments, shares and securities anendorsement shall be made that the holdershall not transfer or assign such assets, withoutthe order of the Court. Security shall also beobtained in cases where a paternity suit, suitfor annulment of a Will, or any other suit thedecision of which is likely to affect thepartition is pending.

445. Fresh partition.— When, as a result ofa decision in a appeal or a suit, it is necessaryto make a fresh partition, the head of the familyshall immediately be put in possession of theproperties which no longer belong to the partywho has received it. The inventory shall becorrected only to the extent it is strictlynecessary to implement the decision and thevaluation and description of the assets shall

be maintained, notwithstanding that there isa complete substitution of the heirs.

CHAPTER XLV

Amendment and Rescission of Partition

446. Amendment of Partition.— The partitionmay be amended, even after it has become finaland no appeal has been preferred, in the verysame inventory proceeding by agreement ofthe parties or their representatives, wherethere is a mistake of facts in the list ofassets or in the classification of the assets orany other error, which vitiates the Will ofthe parties:

Provided that where in the order there areclerical or arithmetical mistakes or any materialerrors arising from accidental slip or omission,they may be corrected at any time by the court,either of its own motion or on application ofany of the parties.

447. Suit for amendment of partition.— Aparty may file a suit for amendment of thepartition, when subsequent to the final orderthe party acquires knowledge of a mistake offact or classification or other error whichvitiates the Will of the party, and the otherparties are not in agreement to have thepartition amended, amicable.

448. Rescission of partition.—

(A) Suit for rescission:

(1) A suit for rescission of the judicialpartition which has become final, may befiled where there is preterition or nonjoinder of any of the co-heirs and if it is foundthat the other parties acted fraudulently ormalafide, whether the malicious conductrelates to the preterition or to thepartition.

(B) Application for review:

(2) Rescission of a judicial partition maybe obtained by filing a review applicationin the same court in the followingcircumstances:—



781

(a) When it is proved in criminalproceeding, resulting in a convictionwhich has become final, that the orderwhich is sought to be reviewed waspassed by giving of bribe, corruption orinfluence;

(b) When a judgement and order ofconviction which has become final isproduced wherein it was held that thedepositions or declarations of the experts,which might have affected the order thatis sought to be reviewed, are false.

The period of limitation to file a review onboth the above grounds is 30 days reckonedfrom the date on which the order on the basisof which the review is filed had become final.

(3) The review application may be filed inthe very same court which passed the order,within 30 days from the date on which theparty has secured the document, or acquiredknowledge of the fact which is the basis forthe review, on the following grounds:–

(a) When a decision is based on a falsedocument or judicial act and this issue wasnot considered in the proceeding when thedecision was given;

(b) When a new document is produced,which was not in the possession or powerof the party or the party did not know aboutthe existence and such document is itselfsufficient to cancel the evidence on whichthe decision is based;

(c) When the admission, withdrawal orcompromise on which the judgement isbased, is revoked or there is a valid groundfor revoking the same;

(d) When the admission, withdrawal orcompromise is null, due to lack of mandateor insufficiency of powers of the attorney,unless the order homologating or ratifyingthe partition has already been personallyserved on the principal;

(e) When the inventory proceeded bydefault and the party was not served withsummon or the summon is null;

(f) When the judgement is contrary toanother judgement which constitutes resjudicata and the party proves that he hadno knowledge of the judgement during thependency of the proceeding.

(4) Where the rescission is sought on thebasis of a document, the plaint or the reviewpetition, as the case may be, shall be accom-panied by the respective certified copy.

449. Settlement of share of the heir left outin the inventory.— (1) Where the heir left outwishes to have his share paid in cash, he mayapply in the inventory that a conference of theparties be convened to work out the value ofhis share.

(2) Where the parties do not reach anagreement, the assets in respect of which

there is a difference in value shall be valued

again and the parties may apply for a second

valuation and, thereafter, the amount to which

such heir is entitled, shall be fixed by the court.

(3) A fresh chart of partition shall be made

so that the changes resulting from the

payments necessary to make up the share of

the heir who was left out, are known. No

sooner the share is settled, such heir may apply

that the debtors be notified to effect the

payment, failing which they will be bound to

make good his share by way of the assets,

without prejudice, however, to the alienations

already made. If the demand is not made, and

the amount due is not deposited by the

respective parties, the money due shall earn

interest @ 6% p.a. from the date of the order.

450. Finality of the decision.— (1) Questions

decided in the inventory proceeding, other

than the questions decided by order made

under section 435, shall be considered as

having attained finality, as against the head of

the family and the persons summoned as heirs,

and so also as against the parties who were

given an opportunity to be heard before the

decision, unless the right to file a suit is

expressly reserved by the court.


782

(2) Where the questions involved arequestions of law, or questions of fact which canbe decided on the basis of documentsproduced or ordered to be produced, the courtshall not reserve the right to file a suit.

(3) As regards questions of fact which haveto be proved by adducing other evidence, thecourt may decide the question provisionallyreserving the right to file a suit when a findingon merits can be given without holding adetailed inquiry.

CHAPTER XLVI

Appeals

451. Appeals.— (1) An appeal from the finalorder made in the inventory proceeding shalllie to the competent Court depending upon thevalue of the assets and such appeal shall bedeemed to be an appeal under section 96 ofthe Code of Civil Procedure, 1908 ( 5 of 1908).

(2) An appeal from order shall lie from everyorder, other than a merely administrativeorder, made in inventory proceeding to thecompetent court depending upon the valuegiven to the assets at the time the order ismade and appeal shall be deemed to be anappeal under section 104 of the Code of CivilProcedure, 1908 (5 of 1908).

CHAPTER XLVII

Preventive measures

452. Appointment of Receiver.— (1) Afterthe filing of the inventory proceeding, pendingappointment of the head of the family, wherethere is a just apprehension that the assets ofthe estate are in danger of being wasted,damaged or dissipated or alienated, the courtmay, upon an application of any partyinterested in the preservation of the assets,and, or of its own motion, order that a list ofthe assets with their description and estimatedvalue, be prepared. The court shall place theassets in the custody of a Receiver who maybe either the applicants the person inpossession or any other interested party. TheReceiver shall manage the assets and renderaccounts. The list of assets prepared under

this clause shall form part of the list of assetsin the inventory proceeding.

(2) When the court is satisfied that the delaywill defeat the very object of the relief sought,it may pass such order, ex parte.

(3) Upon hearing the person dispossessedby the ex parte order, the court may eitherconfirm or vacate the ex parte order passed.In case it is confirmed, such assets shall behanded over to the head of the familyappointed in the inventory proceeding.

453. Temporary Injunction.— When aninterested party has reasonable apprehensionthat another interested party may causedamage to the assets of the inheritance, orcommit acts which may cause grave andirreparable injury to his right, he may applyfor a temporary injunction or such other orderas may be just and proper to avoid such injuryor damage. The court may pass an interim exparte order, when it is satisfied that the delaywill defeat the very object of the relief sought.

CHAPTER XLVIII

Miscellaneous

454. Cause Title.— (1) The cause title in theinitial petition instituting inventory proceedingshall set out the name and full address of thepetitioner and the name and the permanentresidence of the estate leaver.

(2) It shall be the duty of the head of the

family to submit a fresh cause title in inventory

proceeding setting out the names of the estate

leaver, the petitioner, head of the family, and

also the names of all the impleaded interested

parties.

(3) It shall be the duty of the head of the

family to submit to the court an amended

cause title whenever a party is added or

deleted.

(4) The causes title in the inventory

proceeding shall be in the form as specified

below subject to such modifications as may

be required.



783

In the Court of ……

Inventory Proceeding No. ……........ of ...........

IN THE MATTER OF

INHERITANCE OF THE LATE XYZ

1. ABC…………….. …………. Petitioner

2. LMN……………... Head of the family

And

3. PQN

4. RST

etc…………........................ Interested Parties

455. Stamp duty payable.— (1) Theinheritance shall be liable to pay stamp dutyof one percent of the net value of the assets asshown in the chart of partition.

(2) The interested parties shall be liable toshare the duty payable in proportion to theirshare in the inheritance.

(3) Where any of the interested partiesdoes not pay his share of the duty payable, anyother interested party may pay such shareof duty and recover the amount in the sameproceedings with interest at the rate of 10%per annum. Where the defaulting party isentitled to owelty, such amount shall beadjusted against the owelty, and for thebalance, there shall be a charge on the assetsallotted to him and he shall not be entitled tothe possession of those assets.

456. Fixation of the amount of costs.— (1)The costs of inventory proceeding shall be atthe discretion of the court.

(2) Where a party is guilty of causingunjustified delay, the court may, for reasons tobe recorded, make an order requiring suchparty to pay to the other party or parties suchcosts as it deems fit.

457. Enforcement of Order.— (1) After thefinal order of partition is made, any party towhom assets have been allotted, may apply inthe inventory proceeding that such assets behanded over to him.

(2) If the party in possession fails to handover immovable assets the delivery ofpossession shall be made by the court byremoving such party from possession of theassets. With regard to movables, the deliveryof possession shall be made by the court byhanding over such assets to such party.

(3) Where monies are payable, the courtshall order the party to liable to pay, to deposit

the amount due in the court within areasonable period failing which the court shallproceed to attach the assets of the defaultingparty and sell them in the public auction. Theamount realized by such auction shall be paidto the party entitled to it. The balance, if any,shall be refunded to the defaulter.

(4) Any order, other than the final order,which is enforceable, shall be enforced in themanner set out in this section.

(5) The defaulting party shall bear the costof the attachment and sale.

458. Summary Proceeding.— Inventoryproceeding shall be summary proceeding andshall not be governed by the Code of CivilProcedure, 1908 (5 of 1908), unless specificallyprovided for.

459. Power to make rules.— The StateGovernment may, by notification in the OfficialGazette, make rules to carry out the purposesof this Act.

460. Repeal and Savings.— (1) On and fromthe date of coming into force of this Act, allprovisions of the laws in force at presentcorresponding to any of the provisions of thisAct shall stand repealed.

(2) Notwithstanding such repeal,—

(a) anything duly done or suffered or anyright, privilege, obligation or liabilityacquired, accrued or incurred or anypenalty, forfeiture or punishment incurredunder any law so repealed shall be deemedto have been done, suffered, acquired,accrued or incurred, as the case may be,under the corresponding provisions of thisAct;

(b) any fee, duty, charges, fine, etc.payable under any law so repealed or anybooks, forms, etc. in use of under any lawso repealed shall, to the extent permissibleand expedient, continue to be payable orused, as the case may be, till new fees,duties, charges, fines, books, forms, etc. areprescribed or fixed, as the case may be,under the provisions of this Act.

(3) All proceedings pending under therepealed laws before any court in the State ofGoa, as on the date of the coming into force ofthis Act, shall be continued in terms of theprocedure provided in this Act.


784

Statement of Objects and ReasonsThe provisions of the law relating to

succession, notaries and inventory proceedingwere dispersed in the Civil Code, 1867, in forcewith effect from 01-07-1870,as amended fromtime to time; the Civil Procedure Code of1939 in force from 01-01-1941; Notariallaw contained in articles 1, 4, 6, 25 to 29,34, 35, 36, 38 to 49, 63 to 108 of DecreeNo. 8373, Government Order No. 14157 dated14-11-1952, Article 1 of Decree Law No. 32033and Article 179 of Law No. 2049 Articles 192,193, 194 and 195 of Decree No. 26118 dated24-11-1935.

All this became laws of the land by virtue ofsection 5 of the Goa, Daman and Diu(Administration) Act, 1962 (1 of 1962) untilamended by competent Legislature.

Further, the original text of these provisions,scattered at times in several at times in severalenactments, are in Portuguese language andhence the Courts, the Members of the Bar andthe Litigants faced practical difficulties in theirapplication. This caused delays in disposingof cases.

A pressing need was felt to consolidatethe various provisions of Law into onecomprehensive, rational and integratedlegislation, to facilitate their application andimplementation by the Bench, the Bar and thelitigants.

Considering the need to take into accountthe social changes and the new situationsarising from the fact that Goa is now a State ofthe Union of India and Goans are citizens ofIndia and considering also that the Lawswhich in force were applicable to an altogetherdifferent set of political circumstances, it hasbecome necessary to amend the Law to meetthe present day requirements and to make itworkable.

Further, in view of noteworthy newprinciples that have evolved, a more humaneand fair outlook is now taken on illegitimacy,on mentally challenged persons and on suchother persons upon whom a stigma was castin the past for no fault of theirs. Theseprinciples and outlook have been adopted inframing the present law.

That object is sought to be achieved by thisBill which deals with the Law of Succes-sion, Special Notaries and the InventoryProceedings.

While drafting the Bill, the followingLegislations have been kept in view:

(a) The provisions of the Portuguese CivilCode enacted in Portugal in 1966, replacingthe Civil Code of 1867 and the Code of CivilProcedure of 28-12-1961, replacing the Codeof Civil Procedure of 1939, as well as Decreesamending from time to time many provisionsof the aforesaid Code on the subject ofSuccession and Inventory and Notarial Law,and the Law approved by Decree Law No.207 dated 14-08-1995 and amendmentsthereto.

(b) The Provisions of Louisianan CivilCode, 1870 (based on Napoleon Code), inforce in the State of Louisiana of the UnitedStates of America as originally enacted, andthe subsequent amendment included byAct of 1981 No. 919 effective after 31-12-1981and Act of 1990 No. 147 with effect from1-7-1990.

(c) Legislation in force in the rest of India.

(d) There are some original provisionswhich have been incorporated bearing inmind the present circumstances.

The subject of succession, partition,execution of Wills with corresponding notarialacts and inventory proceeding meant forpartition of the estate through the Courtfall within the purview of entry 5 of List III--Concurrent List of the seventh schedule tothe Constitution of India and in view of section5 of the aforesaid Goa, Daman and Diu(Administration) Act, 1962 (1 of 1962), theLegislature of the State of Goa is competentto enact Law on the subject.

This Bill seeks to achieve the above objects.

Financial MemorandumNo financial implications are involved in this Bill.

Memorandum Regarding Delegated Legislation

The Bill empowers the Government to makethe rules to carrying out the purposes of the Act.

This delegation is of normal character.

Assembly Hall, DIGAMBAR KAMATPorvorim, Goa. Minister for Law2nd August, 2010.

Assembly Hall, J. N. BRAGANZAPorvorim, Goa. Secretary (Legislature)2nd August, 2010.



785

LA/LEGN/2010/1770

The following bill which was introduced in the LegislativeAssembly of the State of Goa on 5th August, 2010 is hereby publishedfor general information in pursuance of Rule-138 of the Rule ofProcedure and Conduct of Business of the Goa Legislative Assembly.

___________

The Goa Appropriation (No. 4) Bill, 2010(Bill No. 11 of 2010)

A

BILL

to provide for the authorization of appropriation of moneys from andout of the Consolidated Fund of the State of Goa to meet theamounts spent on certain services during the year 2003–2004 inexcess of the amounts granted for those services and for that period.

Be it enacted by the Legislative Assembly of Goa in the Sixty-firstYear of the Republic of India as follows:—

1. Short title.— This Act may be called the Goa Appropriation(No. 4) Act, 2010.

2. Issue of Rs. 549,59,47,652 out of the Consolidated Fund of theState of Goa to meet excess expenditure for the year 2003-2004.—From and out of the Consolidated Fund of the State of Goa, the sumsspecified in column (5) of the Schedule hereto amounting in theaggregate to the sum of Five Hundred and forty nine crores fifty ninelakhs forty seven thousand six hundred and fifty two rupees shall bedeemed to have been authorized to be paid and applied to meet theamount spent for defraying the charges in respect of servicesspecified in column (2) of the said Schedule for the year 2003–2004 inexcess of the amounts granted for those services and for that period.

3. Appropriation.— The sums deemed to have been authorized tobe paid and applied from and out of the Consolidated Fund of theState of Goa under this Act, shall be deemed to have beenappropriated for the services and purposes expressed in the saidSchedule for the year 2003–2004.

SCHEDULE(See sections 2 and 3)

Sums not exceeding

Demand Voted by Charged on the Total ExcessNo. Services and purposes Assembly Consolidated over Grants/

Fund of the /AppropriationState of Goa

(1) (2) (3) (4) (5)

Rs. Rs. Rs.A2 AppropriationDebt Services — 3,75,18,471 3,75,18,471

A2 AppropriationDebt Services — 545,81,60,341 545,81,60,341

2 General Administration& Co-ordination 2,68,840 — 2,68,840

TOTAL 2,68,840 549,56,78,812 549,59,47,652


786

Statement of Objects and Reasons

The Demands for Excess Grants for the expenditure of this Statefor the year 2003–2004 has been presented to the LegislatureAssembly. The Goa Appropriation (No. 4) Bill, 2010 is, therefore,introduced in pursuance of Article 204 read with Article 205 of theConstitution of India to provide for authorization of appropriation ofmoneys out of the Consolidated Fund of the State of Goa to meet theamount spent on certain services during the year 2003–2004 in excessof the amount granted for those services and for that period.

Porvorim-Goa. SHRI DIGAMBAR KAMAT

21st July, 2010. Finance Minister/Chief Minister

Assembly Hall, J. N. BRAGANZA

Porvorim, Goa. Secretary to the Legislative

21st July, 2010. Assembly of Goa

————

Governor’s Recommendation

The Governor has, in pursuance of Article 207 of the Constitutionof India, recommended to the Legislative Assembly, the introductionand consideration of the Goa Appropriation (No. 4) Bill, 2010.

_________

LA/LEGN/2010/1771

The following bill which was introduced in the LegislativeAssembly of the State of Goa on 5th August, 2010 is hereby publishedfor general information in pursuance of Rule-138 of the Ruleof Procedure and Conduct of Business of the Goa LegislativeAssembly.

__________

The Goa Appropriation (No. 5) Bill, 2010

(Bill No. 12 of 2010)

A

BILL

to provide for the authorization of appropriation of moneys from andout of the Consolidated Fund of the State of Goa to meet theamounts spent on certain services during the year 2004–2005 inexcess of the amounts granted for those services and for thatperiod.



787

Be it enacted by the Legislative Assembly of Goa in the Sixty-firstYear of the Republic of India as follows:—


2. Issue of Rs. 2,93,84,93,132 out of the Consolidated Fund of theState of Goa to meet excess expenditure for the year 2004-2005.—From and out of the Consolidated Fund of the State of Goa, the sumsspecified in column (5) of the Schedule hereto amounting in theaggregate to the sum of Two hundred and ninety three crores eightyfour lakhs ninety three thousand one hundred and thirty two rupeesshall be deemed to have been authorized to be paid and appliedto meet the amount spent for defraying the charges in respectof services specified in column (2) of the said Schedule for the year2004-2005 in excess of the amounts granted for those services and forthat period.

3. Appropriation.— The sums deemed to have been authorized to

be paid and applied from and out of the Consolidated Fund of the

State of Goa under this Act, shall be deemed to have been appropriated

for the services and purposes expressed in the said Schedule for the

year 2004-2005.

SCHEDULE

(See sections 2 and 3)

Sums not exceeding



(1) (2) (3) (4) (5)

Rs. Rs. Rs.

8 Treasury andAccounts — 3,69,69,389 3,69,69, 389

A2 Appropriation –Debt Services — 2,90,15,23,743 2,90,15,23,743

TOTAL — 2,93,84,93,132 2,93,84,93,132


The Demands for Excess Grants for the expenditure of this Statefor the year 2004-2005 has been presented to the LegislatureAssembly. The Goa Appropriation (No. 5) Bill, 2010 is, therefore,introduced in pursuance of Article 204 read with Article 205 of theConstitution of India to provide for authorization of appropriation of


788

moneys out of the Consolidated Fund of the State of Goa to meet theamount spent on certain services during the year 2004-2005 in excessof the amount granted for those services and for that period.

Porvorim. SHRI DIGAMBAR KAMAT





——————-



_________

LA/LEGN/2010/1772

The following bill which was introduced in the LegislativeAssembly of the State of Goa on 5th August, 2010 is hereby publishedfor general information in pursuance of Rule-138 of the Rule ofProcedure and Conduct of Business of the Goa LegislativeAssembly.

__________


(Bill No. 13 of 2010)

A

BILL

to provide for the authorization of appropriation of moneys from andout of the Consolidated Fund of the State of Goa to meet theamounts spent on certain services during the year 2005-2006 inexcess of the amounts granted for those services and for that period.

Be it enacted by the Legislative Assembly of Goa in the Sixty-first

Year of the Republic of India as follows:—


2. Issue of Rs. 17,67,84,433 out of the Consolidated Fund of the State

of Goa to meet excess expenditure for the year 2005-2006.— From and



789

out of the Consolidated Fund of the State of Goa, the sums specified incolumn (5) of the Schedule hereto amounting in the aggregate to thesum of Seventeen crores sixty seven lakhs eighty four thousand fourhundred and thirty three rupees shall be deemed to have beenauthorized to be paid and applied to meet the amount spent fordefraying the charges in respect of services specified in column (2) ofthe said Schedule for the year 2005-2006 in excess of the amounts

granted for those services and for that period.

3. Appropriation.— The sums deemed to have been authorized tobe paid and applied from and out of the Consolidated Fund of theState of Goa under this Act, shall be deemed to have been appropriatedfor the services and purposes expressed in the said Schedule for the

year 2005-2006.

SCHEDULE


Sums not exceeding


Fund of the AppropriationState of Goa

(1) (2) (3) (4) (5)

Rs. Rs. Rs.A2 Appropriation

Debt Services — 17,67,69,547 17,67,69,54738 Government

Polytechnic 14,886 — 14,886

14,886 17,67,69,547 17,67,84,433


The Demands for Excess Grants for the expenditure of this Statefor the year 2005 – 2006 has been presented to the LegislatureAssembly. The Goa Appropriation (No. 6) Bill, 2010 is, therefore,introduced in pursuance of Article 204 read with Article 205 of theConstitution of India to provide for authorization of appropriation ofmoneys out of the Consolidated Fund of the State of Goa to meet theamount spent on certain services during the year 2005 – 2006 in excessof the amount granted for those services and for that period.



Assembly Hall J. N. BRAGANZAPorvorim, Goa Secretary to the Legislative


—————




790

LA/LEGN/2010/1773

The following bill which was introduced in the Legislative

Assembly of the State of Goa on 5th August, 2010 is hereby published

for general information in pursuance of Rule-138 of the Rule of

Procedure and Conduct of Business of the Goa Legislative

Assembly.

__________


(Bill No. 14 of 2010)

A

BILL

to provide for the authorization of appropriation of moneys from and

out of the Consolidated Fund of the State of Goa to meet the

amounts spent on certain services during the year 2006-2007

in excess of the amounts granted for those services and for that

period.

Be it enacted by the Legislative Assembly of Goa in the Sixty-first

Year of the Republic of India as follows:—

1. Short title.— This Act may be called the Goa Appropriation

(No. 7) Act, 2010.

2. Issue of Rs. 9,07,428 out of the Consolidated Fund of the State

of Goa to meet excess expenditure for the year 2006-2007.— From and

out of the Consolidated Fund of the State of Goa, the sums specified in

column (5) of the Schedule hereto amounting in the aggregate to the

sum of Nine lakhs seven thousand four hundred and twenty eight

rupees shall be deemed to have been authorized to be paid and

applied to meet the amount spent for defraying the charges in respect

of services specified in column (2) of the said Schedule for the year

2006-2007 in excess of the amounts granted for those services and for

that period.

3. Appropriation.— The sums deemed to have been authorized to

be paid and applied from and out of the Consolidated Fund of the

State of Goa under this Act, shall be deemed to have been appropriated

for the services and purposes expressed in the said Schedule for the

year 2006-2007.



791

SCHEDULE


Sums not exceeding



(1) (2) (3) (4) (5)

Rs. Rs. Rs.

1 LegislatureSecretariat — 41,733 41,733

21 Public Works— 8,65,695 8,65,695

TOTAL — 9,07,428 9,07,428


The Demands for Excess Grants for the expenditure of this State

for the year 2006-2007 has been presented to the Legislature Assembly.

The Goa Appropriation (No. 7) Bill, 2010 is, therefore, introduced in

pursuance of Article 204 read with Article 205 of the Constitution of

India to provide for authorization of appropriation of moneys out of

the Consolidated Fund of the State of Goa to meet the amount spent

on certain services during the year 2006-2007 in excess of the amount

granted for those services and for that period.






——————


The Governor has, in pursuance of Article 207 of the Constitution

of India, recommended to the Legislative Assembly, the introduction

and consideration of the Goa Appropriation (No. 7) Bill, 2010.


792

Department of Law & Judiciary

Law Establishment Division___

Order

12/15/2008-LD/Estt./1252

Read: Order No. 12-15-2008/LD(Estt)/677dated 30-4-2010.

Government is pleased to accept therecommendation of the PadmanabhanCommittee to enhance the MedicalAllowance from Rs. 100/- to 1000/- p.m. toall District Judges, Civil Judges (SeniorDivision) and Civil Judges (Junior Division)

in the State of Goa, in accordance with theOrder dated 4-5-2010 and Corrigendumthereof dated 8-5-2010 passed by the Hon’bleSupreme Court of India in the Writ Petition(C) No. 1022 of 1989.

This issues with the concurrence of the

Finance (Rev. & Cont.) Department, vide

U. O. No. 2349/2010 dated 20-7-2010.

By order and in the name of theGovernor of Goa.

N. P. Singnapurker, Under Secretary (Estt.).

Porvorim, 5th August, 2010.

www.goaprintingpress.gov.in

Published and Printed by the Director, Printing & Stationery,Government Printing Press,

Mahatma Gandhi Road, Panaji-Goa 403 001.

PRICE – Rs. 116.00

Documents

Goa Legislature Secretariat - Government Printing · PDF fileGoa Legislature Secretariat LA/QB/SC/2010/1758 The following Report of Select Committee on “The Goa Succession, Special