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III. What is the effect of the grant of probate by the Bombay High Court in respect of the Will executed by JMP?

I. Whether the Portuguese Civil Code can be said to be a foreign law and the principles of private international law are applicable?

13. The territories forming part of Goa, Daman and Diu were part of the kingdom of Portugal. They were annexed by the Government of India by conquest on 20.12.1961 and became a part of India by virtue of Article 1(3)(c) of the Constitution. After acquisition by conquest, these territories became part and parcel of India, that is Bharat. As pointed out earlier, for making provision for administration of the said territories, the President of India, exercising powers vested in him under Article 123(1) of the Constitution on 05.03.1962 promulgated an Ordinance called the Goa, Daman and Diu (Administration) Ordinance, 1962. This Ordinance was replaced by an Act of Indian Parliament known as The Goa, Daman and Diu (Administration) Act, 1962, which came into effect from 05.03.1962. On the same day, the Constitution was amended by the Constitution (12 th Amendment) Act, 1962 whereby Goa, Daman and Diu were added as Entry 5 in Part II of the First Schedule to the Constitution with retrospective effect from 20.12.1961. These territories of Goa, Daman and Diu were also included in clause (d) of Article 240(1) of the Constitution with effect from 20.12.1961. Thus, it is more than apparent that Goa, Daman and Diu became an integral part of India as a Union Territory of India with effect from the date of its annexation by conquest. Goa became a full­fledged State in 1987.

14. The Civil Code may be a Code of Portuguese origin but after conquest and annexation of Goa, Daman and Diu, this Code became applicable to the domiciles of Goa only by virtue of the Ordinance and thereafter, by the Act. Therefore, the Civil Code has been enforced in Goa, Daman and Diu by an Act of the Indian Parliament and thus, becomes an Indian law. This issue is no longer res integra.

15. A Constitution Bench of this Court in Pema Chibar vs. Union of India & Ors.3, was dealing with a case wherein the petitioner had obtained licences for import of goods of the value of more than one million pounds. Though the orders for import of the goods to Goa were placed before 20.12.1961, the goods did not reach Goa by the said date. Thereafter, the petitioner applied for renewal of the licences and claimed that the Indian Government was bound by the licences granted by the earlier rulers. This Court held that once a property is taken over by conquest, the new sovereign (namely, the Government of India) 3 AIR 1966 SC 442 would not be bound by the acts of the old sovereign except where it recognised such rights. Reliance was placed by the petitioner on the Ordinance and the Act, referred to above. Rejecting the contention, this Court held as follows:

“28. The decision in Pema Chibar (supra) is an authority for four distinct and important propositions: (1) The fact that laws which were in force in the conquered territory are continued by the new Government after the conquest is not by itself enough to show that the new sovereign has recognised the rights under the old laws; (2) The rights which arose out of the old laws prior to the conquest or annexation can be enforced against the new sovereign only if he has chosen to recognise those rights; (3) Neither Section 5 of the Administration Act nor Section 4(2) of the Regulation amounts to recognition by the new sovereign of old rights which arose prior to December 20, 1961 under the laws which were in force in the conquered territory, the only rights protected under Section 4(2) aforesaid being those which accrued subsequent to the date of enforcement of the Administration Act, namely, March 5, 1962; and (4) The period between December 20, 1961 when the territories comprised in Goa, Daman and Diu were annexed by the Government of India, and March 5, 1962 when the Administration Act came into force, was a period of interregnum...” Thereafter, the Court finally held that in cases of acquisition of territory by conquest, the rights which had accrued under the old laws do not survive and cannot be enforced against the new Government unless it chooses to recognise that right. The relevant portion of the judgment reads as follows:

 “29. The true position then is that in cases of acquisition of a territory by conquest, rights which had accrued under the old laws do not survive and cannot be enforced against the new Government unless it chooses to recognise those rights. In order to recognise the old rights, it is not necessary for the new Government to continue the old laws under which those rights had accrued because, old rights can be recognised without continuing the old laws as, for example, by contract or executive action. On the one hand, old rights can be recognised by the new Government without continuing the old laws; on the other, the mere continuance of old laws does not imply the recognition of old rights which had accrued under those laws. Something more than the continuance of old laws is necessary in order to support the claim that old rights have been recognised by the new Government. That ‘something more’ can be found in a statutory provision whereby rights which had already accrued under the old laws are saved. In so far as continuance of old laws is concerned, as a general rule, they continue in operation after the conquest, which means that the new Government is at liberty not to adopt them at all or to adopt them without a break in their continuity or else to adopt them from a date subsequent to the date of conquest.”