A) It is pertinent to note that Goa continues to have Portuguese Personal Law relating to marriage/divorce and succession. Personal laws of different religious communities prevailing in rest of India namely for Hindus, Muslims, Christians etc like Hindu Marriage/Succession Act etc are not extended to the State of Goa.
Barring the above major laws and other specific laws referred to hereinafter, rest of the laws relating to property like Transfer of Property Act/Contract Act, Easement Act, Registration Act, prevailing in India apply equally to the State of Goa.
B) However, it must also be noted that some laws which were prevailing in Goa under the Portuguese Regime and which have not been repealed by the extension of corresponding Indian Law (if there is no such Indian Law) would continue to prevail, like law relating to co-ownership, pre-emption, demarcation etc.
C) In Goa, one common Portuguese family law relating to Marriage, Divorce, Succession applies to the Goans uniformly irrespective of their religion (concept of common Civil Code under Article 44 of the Constitution of India).
D) Salient features of Goan personal laws:
(i) Marriage: Both the spouses have equal half share in the assets held by them before and after marriage, by default, unless a contract called ante-nuptial contract is executed prior to marriage to not have the said communion. The spouses are termed as co-sharers and not co-owners. In view of the above, it is absolutely essential for both husband and wife to be parties in a conveyance, as conveyance by only one spouse is totally void and does not convey his/her half share. This is different from the concept of co-ownership where one co-owner can convey his undivided right, for example children who inherit property from parents or persons buying the property jointly would be the co-owners who can alienate their undivided right. Only death or divorce cuts off the communion. Upon death the half right of the parent is inherited by the children who are then classified as co-owners and not co-sharers like husband and wife.
(ii) Succession: The execution of documents relating to Deed of Succession, Deed of Renunciation and Wills continue to be governed by Portuguese Law and such documents are recorded by an Officer called Notario (Sub-Registrar) in his Books and maintained as public records and certified copies issued. A distinguishing feature of the will is that it does not require probate as is the norm in many parts of India, and the document by itself can be used as substantive title document. Also, certified copy of Deed of Succession is provided only after a draft is published in the Government Gazette and no objections are received within one month.
Also, under another law called Codigo Registo Predial (Land Registration Code), the acquisition of title to the property is registered in 2 records called (i) Description, (ii) Inscription. The former describes a property with its boundaries and allocates a number. The latter records inscription i.e. source of acquisition of title to the property, and the entry used to be made by the Officer on verifying the title and the name of the owner is inscribed against the corresponding description number. This registration is not to be confused with the registration of Deeds of Sale, Gift and Agreement by the Sub-Registrar under the Indian Registration Act under which the sale of property is registered, whereas under Portuguese law, the title in the land is registered. Availability of all the above documents facilitates to trace the flow of title. Hence, there is no need to carry any separate search in the office of the Sub-Registrar. In the matter of free disposition like Will/Gift there is a cap by which only 50% can be alienated which is called the “disposable quota” and the balance 50% is called “non-disposable quota” or the legitime which is necessarily reserved for the heirs called forced heirs. If the Will/Gift exceeds the disposable quota, it can be reduced to the prescribed limit by the court in succession proceedings called “Inventario”.
Another distinguishing feature is the order of succession whereby the half right of a spouse first passes on the descendants, then to the ascendants, then to collaterals, then to the spouse, then to other relatives and lastly to the Government (in the absence of the first category the succession passes on to the next category). Therefore, care has to be taken when the couple dies issueless, unless there is a Will/Gift executed by them to take care of the respective half rights. It must not be confused that the half right would straight away go to the other spouse. In the case of pre-emption, one co-owner before selling his undivided right to an outsider has to give first preference or right of refusal to the other co-owners, failing which the aggrieved co-owner can file a suit within 6 months to effect conveyance in his name from the actual purchaser by offering him the consideration. Under a local law called the Goa Mundkar Act, 1978, a dweller of a house residing in a dwelling house prior to 1975, is called a mundkar and is entitled to, at his/her option, either an area of 300 square meters around and inclusive of the dwelling house, or an area of 5 meters from the outer wall of the dwelling house. Said mundkar has statutory protection from eviction. Relating to inheritance of Mundkarship, as per Section 3 of the Mundkar Act, the rights of mundkars are inheritable, hence the children of mundkar would inherit the right of their father. As the entitlement of a mundkar to the area around the dwelling house is 300 square meters or 5 meters from the outer wall, all the children would have right to the said 300 square meters, collectively, and no one heir can separately claim the said entire area to the exclusion of the other heirs