Testamentary Succession in the state of Goa
The State of Goa is known for its scenic beauty and boasts about the fact that it is the only state in India that has civil laws which are applicable to all faiths ensuring uniformity and parity. Formerly, the civil rights of Goans were only protected by the provisions laid down in the Portuguese Civil Code, 1867; Portuguese Code of Civil Procedure, 1939 and the Family Laws Marriage, Divorce, Children, the Goa Code of Civil Registration, 1912. However, the Government of Goa felt a need to consolidate and amend the laws relating to intestate and testamentary succession, notarial law and other laws relating to partition of an inheritance, etc. and accordingly legislated a new Act known as ‘The Goa Succession, Special Notaries And Inventory Proceeding Act, 2012’ (“Act”). Inheritance under the Act is vast and does not fall within the ambit of a straight jacket formula. The procedures related to the various aspects of inheritance would differ based on the facts and circumstances of every case. This article touches upon an aspect of inheritance i.e. testamentary succession in the State of Goa and provides a basic understanding on the following: A. Succession The Act terms Succession as a process by which deceased’s estate is transferred to the successor(s). It includes testamentary succession i.e when the deceased has left a Will and the same has to be executed and Intestate succession i.e. when the assets devolves upon the heir(s) in absence of a Will. In both cases, in order for the assets to devolve, and for the rights of every heir, legatee and/ or successor, to be determined, an inventory proceeding is instituted and the court is required to adhere to the order of succession as provided in the Act. Order of Succession Legal succession would devolve following order of priority being i) on the descendants, then i) (a) on the surviving spouse, then ii) on the ascendants subject to the provisions of sub section (2) of Section 72, then iii) on the brothers and sisters and their descendants, then iv) on the collaterals upto the sixth degree, and then v) on the State, provided that, in the absence of testamentary or intestate heir of a beneficial owner or of an emphyteusis, the property shall revert to the direct owner i.e, if a beneficial owner dies without leaving a Will or does not have any heirs, the property will revert back to the State. B. Proceedings for the execution of Will of the Deceased. Inventory Proceeding An inventory proceeding is a proceeding to partition the inheritance of the deceased person or to obtain a formal order of inheritance by the Court. It is initiated for executing a Will or, in its absence, to determine the asset distribution. Inventory proceedings are classified into two which are the following: When the estate leaver leaves behind a spouse or heirs who are legally incapacitated, absent, unidentified, or minors, the division of assets will occur by instituting an inventory proceeding only. When the Interested parties (hereinafter defined) do not fall within the ambit of a mandatory inventory, they may opt for inventory proceedings to partition the inheritance. Jurisdiction The place of opening of the inheritance shall be established in the following manner: Procedure for Inventory for execution of Will An Inventory proceeding is instituted by the Interested party (hereinafter defined) in person or through a constituted attorney. “Interested Party” is the heir, moiety holder (spouse) of the deceased, executor in a Will where there is a minor, interdicted (person who is declared to be incompetent to manage his/her assets by the order of the court) or absent heirs or legatees and the person who have a the right to usufruct of a part of the inheritance without specifying its value or thing and also the executor. Set out below is the procedure for instituting an inventory proceeding for the execution of a Will where the Interested Parties mutually consent to the same. Steps Stage Explanation 1. Filing of the Inventory Proceeding and appointment of Head of Family (Cabeca de Casal) A petition is filed along with the death certificate of the estate leaver; self attested Aadhaar Cards and /or Pan Cards of the Petitioner and Interested Parties in order to substantiate the relationship with the estate leaver; marriage certificate of the deceased person along with the marriage certificate of the Interested Parties to the inventory proceeding; anda Will. If the death of the estate leaver is not registered, then the burial certificate is produced along with affidavits sworn by three witnesses on oath stating that they were present when the estate leaver died.Upon institution of such petition for inventory proceedings, the court shall appoint the eldest member of family to be the head of the family provided he/she has not attained the age of 70 years. However, if there are no other heirs, to represent the deceased then he/she can be appointed as head of family in assisting the court wherein he/she shall be bound to make declaration on oath pertaining to the death of the estate leaver; place of death, details of the Interested Parties;details of testamentary disposition i.e., Will;anti – nuptial agreement; and / oradditional documents may be produced depending on the nature of the case. 2. Summons When the court is satisfied that the inventory is maintainable and that the estate leaver is governed by the laws of the state of Goa, it shall fix a date for the submission of the list of assets and shall issue notices to all of the Interested Parties intimating about the initiation of the inventory proceedings and such Interested party may participate and render their say/objections to the proceedings within a period of 30 days from receipt of the notice along with the relevant documents which ensures a fair judicial process.If there are unknown legatees and creditors, they shall be served by substituted service by affixing the summon in some conspicuous place in the court.If the Interested Parties wish to execute the Will mutually, then the Interested Parties would appoint
Tracing the chain of title – 12 years or 30 years?
Introduction On account of rapid industrial development and uninterrupted ever-growing urbanization the demand for land for development residential, commercial, industrial, as well as for establishing larger modern farmhouses has increased tremendously and so is the need for investigating the title of such properties, in order to avoid deceit, suppression and exploitation. A search into the ownership of the property of the person is called the investigation of title. This is carried out on behalf of the person who may be interested in the property either as a purchaser or in the capacity of a creditor or a lender who is to accept the property or land as a security. The creditor or lender is interested in getting the property (i.e. its ownership) investigated, so as to ensure, that the title of the property is quite clear and that he is assured of the repayment of advances made in favour of the said property owner. Object Of Investigating The Title: The investigation is carried out broadly with the intentions that: What Does Having An Ownership/posession Of The Property Mean? Control over the land is possible only when one is having actual physical contact with this said land. The word possession denotes a continuing contact with the land. This also exhibits mental element to possess the property and use the same to the exclusion of others. The possession of the land is therefore legally placed side by side with the ownership of it, consequently a person not the owner of the land, becomes its owner. Whereas the owner dispossessed on account of his continuous absence of any contact with the land loses its ownership. In short possession is the most important component of ownership. The possession of the land is also considered prima facie evidence of the title to the said land. In common parlance “possession is 90% ownership.” Is Possession And Ownership The Same? A possession of the land for a very long period is taken up as a sufficient condition for granting ownership and also assigning the title even though the property belonged to another person. It must always be remembered that the possession of the land matures into its ownership, in the course of time by legal orders. It may also be possible that the possession as a right can also be gained under a mutual agreement between the owner and the possessor. There have also been several instances, particularly in remote forsaken villages and towns where possession of land of many persons maybe by usurption as these lands have been abandoned and remained unclaimed for over a long period of time. It can therefore be concluded that the possession is the badge of ownership of the land. Adverse Possession Adverse possession that is continued possession over a period of time is one of the methods of acquiring title to land or property. For the actual owner of the land the title to land is lost by adverse possession being proved by the person even though that person is wrongfully possessing the land. There is no statutory definition of adverse possession. Generally, it can be understood as a possession which is adversed or opposed to ones interest of the real owner of the property. Therefore, mere possession even for a long time without a claim of right does not create adverse possession, as there is absence of intention of using others property adversely, to his own interest therein. In short, adverse possession means hostile possession which is explicitly or implicitly in denial of the title of real owner. Because law of limitation does not concern with the bona fides of the person who has adversely possessed the land the person adversely possessing the land is converted into a valid possessor, provided it is established that the possession of the adverse possessor continues for the full period of 12 years as stipulated in the statute, for whatever maybe the cause. If the continuity in possession is broken, the adverse possessor fails to acquire title under the statute. 12 Years Or 30 Years Of Search? In order to ascertain the validity of the title, it is important to trace the chain of title of the property for the period of 30 years (“Full Search”). There exists another thought in this regard. Some think that tracing out the chain of title for the period of 12 years is sufficient (“Limited Search”). This opinion of theirs is based on the point of limitation period for action for claiming relief against adverse possession is 12 years and they therefore ignore searches beyond that period (i.e. 13 years). However, searches for a period of 30 years benefits the seller/buyer in truly identifying the defects in the title and subsequently correcting or remedying the same. Conclusion In Conclusion, depending on the nature of the transaction, the objective of the parties and the value of the property involved, it is decided whether a Full Search or a Limited Search can be conducted. However, Unlike Full Searches, in a Limited Search, the search relating to the history of the property may be limited to restricted aspects such as recent title history, encumbrances on the property, disputes related to the property etc. – Krutika Jain, Associate Solomon & Co. __________________________________________________________________________________ About Solomon & Co. Solomon & Co., Advocates & Solicitors (Firm) was founded in 1909 and is amongst India’s oldest law-firms. The Firm is a full-service law firm that provides legal service to Indian and international companies and high net-worth individuals on all aspects of Indian law. “Disclaimer” The information contained on this article is intended solely to provide general guidance on matters of interest for the personal use of the reader, who accepts full responsibility for its use. The application and impact of laws can vary widely based on the specific facts involved. As such, it should not be used as a substitute for consultation with a competent adviser. Before making any decision or taking any action, the reader should always consult a professional adviser relating to
Bombay Hight Court Rules in Favor of Housing Society, Paving Way for Long-Delayed Redevelopment
On 11th September 2024, in a significant ruling, the Bombay High Court has granted relief to Kher Nagar Sukhsadan Co-operative Housing Society Ltd. (“Petitioner“), paving the way for the redevelopment of their dilapidated building, which had been stalled due to objections raised by AA Estates Private Limited (“AA Estates“) and its Resolution Professional (RP) during its Corporate Insolvency Resolution Process (“CIRP”). The court addressed a long-standing dispute involving the redevelopment of a building categorized as “C-1” (unfit for habitation) and affected by the moratorium imposed on AA Estates under the Insolvency and Bankruptcy Code, 2019. Facts The Kher Nagar Sukhsadan Society, located in Bandra East, Mumbai, had entered into a Development Agreement with AA Estates in 2005, granting the latter redevelopment rights over the building. However, despite the initial agreement and a supplemental agreement in 2014, AA Estates failed to make any significant progress. Notices issued by the Municipal Corporation of Greater Bombay in 2017 declared the building as hazardous, and the society members were forced to live in unsafe conditions. After waiting for over a decade and account of AA Estates inaction, the Petitioner terminated the agreement with AA Estates in 2019 and subsequently appointed Tristar Development LLP (“Tristar“) as their new developer. Tristar took steps and obtained various permissions/approvals towards the redevelopment of the Petitioner’s building. During this timelines, AA Estates, which was undergoing CIRP raised objections, claiming the redevelopment rights over the building and citing the moratorium under the IBC. The moratorium on AA Estates was imposed twice. The first moratorium came into effect on 14th November 2019, when the NCLT initiated CIRP against AA Estates. During this period, the Interim Resolution Professional (IRP) informed the Petitioner that no coercive actions could be taken against AA Estates. However, this order was vacated on 12th June 2020 by the NCLT. After this, a second moratorium was imposed on 6th December 2022 when the NCLT reappointed a Resolution Professional for AA Estates. Following the second moratorium, the RP issued letters in April and August 2023, instructing authorities not to process any redevelopment permissions for the Petitioner’s property, claiming that AA Estates had an interest in the project. The Bombay High Court’s findings The court observed that AA Estates had consistently failed to meet its obligations, including redevelopment work, and had no legal ground to continue objecting to the redevelopment. Citing the precedents of Manohar M. Ghatalia & Ors. v. State of Maharashtra[] and Tagore Nagar Shree Ganesh Krupa Cooperative Housing Society Ltd. v. State of Maharashtra[], the court held that the development rights did not form part of the assets of AA Estates under the CIRP. The court also pointed out that no material distinction existed between the present case and the cited precedents. Both cases established that the developer (in both cases, AA Estates) had failed to fulfill its obligations under a redevelopment agreement and therefore could not claim any vested rights in the property or hinder redevelopment. The Court emphasized that the members of the Petitioner society had a fundamental right to safe and habitable housing and could not be deprived of their rights due to the CIRP proceedings of AA Estates. The court found the RP’s letters, which attempted to halt the redevelopment, illegal and inconsistent with the record. The Court directed the MCGM and MHADA to process and grant all pending permissions for the redevelopment within two months, thereby allowing Tristar Development LLP to proceed with the project. The court also formally recognized Tristar as the appointed developer and dismissed any claims or objections raised by AA Estates or its Resolution Professional regarding the redevelopment. Furthermore, the court concluded that the redevelopment rights of the society’s property did not fall within the scope of AA Estates’ assets under the CIRP, and the moratorium did not apply to these rights. Conclusion This judgment brings much-needed relief to the members of the Petitioner Society, who had been living in dilapidated conditions for years. The judgment reinforces the right of housing societies to terminate agreements with developers who fail to fulfil their obligations and seek alternative solutions, even when the developer is undergoing insolvency proceedings. The case is a reminder of the judiciary’s role in balancing the interests of insolvent companies and the fundamental rights of citizens. – Ankita Mishra, Associate, Solomon & Co. About Solomon & Co. Solomon & Co. (Advocates & Solicitors) was founded in 1909 and is amongst India’s oldest law-firms. The Firm is a full-service firm that provides legal service to Indian and international companies and high net-worth individuals on all aspects of Indian law. “Disclaimer” The information contained in this article is intended solely to provide general guidance on matters of interest for the personal use of the reader, who accepts full responsibility for its use. The application and impact of laws can vary widely based on the specific facts involved. As such, it should not be used as a substitute for consultation with a competent adviser. Before making any decision or taking any action, the reader should always consult a professional adviser relating to the relevant article posting. Copyright © 2024 Solomon & Co., All rights reserved.
