reg. no. g-2/rnp/goa/32/2015-2017 rni no....

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Panaji, 22nd September, 2016 (Bhadra 31, 1938) SERIES I No. 25

Reg. No. G-2/RNP/GOA/32/2015-2017 RNI No. GOAENG/2002/6410

PUBLISHED BY AUTHORITY

GOVERNMENT OF GOA

Department of Law & Judiciary

Legal Affairs Division___

Notification

7/18/2016-LA

The Goa Succession, Special Notaries andInventory Proceeding Act, 2012 (Goa Act 23of 2016), which has been passed by theLegislative Assembly of Goa on 5-8-2016and assented to by the Governor of Goa on19-9-2016, is hereby published for generalinformation of the public.

Sharad G. Marathe, Joint Secretary (Law).

Porvorim, 22nd September, 2016.

—————

The Goa Succession, Special Notaries andInventory Proceeding Act, 2012

INDEX

PART I

GENERAL PROVISIONS

Section 1. Short title, extent, commencementand application.

Section 2. Definitions.

Suggestions are welcomed on e-mail: dirñ[email protected]

PART II

SUCCESSION

CHAPTER I

PRELIMINARY PROVISIONS

Section 3. Succession.Section 4. Types of Succession.Section 5. Types of successors: heirs and

legatees.Section 6. Inheritance.Section 7. Simultaneous death of the estate

leaver and the successor.

CHAPTER II

OPENING OF THE INHERITANCE,COMPETENCE TO SUCCEED ANDTRANSMISSION OF OWNERSHIP

AND POSSESSION

Section 8. Opening of the succession.Section 9. Competence to succeed.Section 10. Incompetence to succeed by reason of

unworthiness to succeed.Section 11. Consequences of declaration of

unworthiness to succeed.Section 12. Re-acquisition of competence to

succeed.Section 13. When the ownership and possession

is transmitted.

CHAPTER III

RIGHT TO PARTITION THE INHERITANCE

Section 14. Partition by inventory.Section 15. Partition by deed.

EXTRAORDINARY

OFFICIAL GAZETTE — GOVT. OF GOASERIES I No. 25 (EXTRAORDINARY) 22ND SEPTEMBER, 2016

940

Section 16. Inheritance is indivisible till partitionis effected.

Section 17. Consequence of transfer of specificasset of inheritance.

Section 18. Right of co-heir to claim theinheritance in its entirety.

Section 19. Right to demand partition.Section 20. Partition of assets of joint family.

CHAPTER IV

ACCEPTANCE AND RENUNCIATION OF THEINHERITANCE

Section 21. Acceptance of inheritance.Section 22. Devolution of inheritance under

different titles.Section 23. Freedom to accept or renounce.Section 24. Nullity of restricted acceptance or

renunciation.Section 25. Capacity to accept or renounce.Section 26. Acceptance or renunciation by one of

the spouses only.Section 27. Acceptance of inheritance left to a

person under disability.Section 28. Acceptance or renunciation of

inheritance left to a deaf and dumbperson.

Section 29. Form of acceptance.Section 30. Gratuitous transfer of inheritance or

share therein.Section 31. Consequences of court decision

declaring a person to be an heir.Section 32. Absence of consensus among heirs to

accept or renounce an inheritance.Section 33. Transmission of right to accept.Section 34. Indivisibility of renunciation.Section 35. How renunciation is effected.Section 36. Consequences of renunciation.Section 37. Implications of renunciation of

disposable share.Section 38. When acceptance may be challenged.Section 39. Subrogation by creditor.Section 40. Prohibition to renounce.Section 41. Retroactivity of acceptance or

renunciation.Section 42. Inheritance at abeyance.Section 43. Temporary management.Section 44. Notice to accept or renounce the

inheritance.

CHAPTER V

LIABILITIES OF THE INHERITANCE

Section 45. Liabilities of the inheritance.Section 46. Order of priorities.

Section 47. Liability of the usufructuary.Section 48. Legacy of maintenance or lifetime

pension.Section 49. Rights and duties of the heirs in

respect of the inheritance.Section 50. Bonafide satisfaction of the legacies.

CHAPTER VI

LEGAL SUCCESSION

Section 51. When legal succession takes placeand its extent.

Section 52. Order of legal succession.Section 53. Proximity of degree.Section 54. Succession per capita.Section 55. Accretion upon renunciation of the

inheritance.Section 56. Degree and lines of kinship.Section 57. Direct and collateral line.Section 58. Types of direct line of kinship.Section 59. How degrees are counted in the direct

line.Section 60. How degrees are counted in the

collateral line.Section 61. Incapacity to inherit by legal

succession.Section 62. Extent of incapacity.

CHAPTER VII

RIGHT OF REPRESENTATION

Section 63. Right of representation.Section 64. Representation in the direct line.Section 65. Representation in the collateral line.Section 66. Right of the representatives.Section 67. Joint representatives.

CHAPTER VIII

ORDER OF SUCCCESSIONSUCCESSION OF DESCENDANTS/ASCENDANTS

Section 68. Succession of children and theirdescendants.

Section 69. When filiation is disputed.Section 70. Succession per capita.Section 71. Succession per stirpes.

SUCCESSION OF ASCENDANTS

Section 72. Succession of parents.

SUCCESSION OF ASCENDANTS OF THESECOND DEGREE

Section 73. Succession of grandparents and otherascendants.


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Section 74. Division per capita: Ascendants in thesame degree.

Section 75. When ascendants are not in the samedegree.

SUCCESSION OF BROTHERS, SISTERS ANDTHEIR DESCENDANTS

Section 76. Succession of brothers, sisters andtheir descendants.

SUCCESSION OF SURVIVING SPOUSE AND OFTHE COLLATERALS

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

and their descendants.

SUCCCESSION OF THE STATE

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

CHAPTER IX

PREFERENTIAL RIGHT OF THE SPOUSE

Section 82. Preferential right of habitation and useof surviving spouse.

CHAPTER X

MANDATORY SUCCESSION, COLLATION ANDREDUCTION

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

grandparents.Section 85. Disposition of specific usufruct or

lifetime pension.Section 86. In officious dispositions.Section 87. Right of forced heir to claim reduction.Section 88. Renunciation of right to claim

reduction.Section 89. Computation of disposable portion.

RULES RELATING TO COLLATION

Section 90. Collation.Section 91. Exemption from collation.Section 92. When is a gift deemed an

advancement of the legitimate.Section 93. Collation by grandchildren.Section 94. When parents are not bound to collate.Section 95. Ascendant duty to collate.

Section 96. Spouses of children not bound tocollate.

Section 97. Expenses to be collated.Section 98. Collation of fruits and profits of gifted

things.Section 99. How collation is done.Section 100. Where the value of the gifted assets

exceeds the value of donee’s share inthe inheritance.

Section 101. On payments made.Section 102. Family arrangement.Section 103. Gift of community assets.Section 104. How the shares of co-heirs are to be

paid.Section 105. When the value of the assets gifted

exceeds the legitimate of the done.Section 106. Where there are several donees.Section 107. Dispute as regards obligation to

collate.Section 108. Assets which devolve in a preferential

manner.Section 109. Duty to collate is a charge in rem.

RULES FOR REDUCTION OF A LEGACY OR GIFT

Section 110. Reduction of legacy or gift.Section 111. Order of reduction.Section 112. Partial reduction.Section 113. Reduction of gifts inter vivos.Section 114. Pro rata reduction.Section 115. Reduction in respect of movables.Section 116. Reduction of gifts of immovables.Section 117. When immovable cannot be divided.Section 118. When the donee may retain the gifted

property.Section 119. When immovable properties are not in

possession of the donee.Section 120. When the donee is insolvent.Section 121. Fruits and profits in the event of

reduction.

CHAPTER XI

TESTAMENTARY SUCCESSION

Section 122. Institution of heir.Section 123. Liability of the heirs.Section 124. Liability of the legatee.Section 125. Apportionment of liabilities where

inheritance is distributed by way oflegacies only.

Section 126. Specific sum or thing bequeathed.Section 127. Institution of heirs collectively.Section 128. Brothers or sisters generally instituted

as heirs.Section 129. Institution of certain person and his

children.


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Section 130. Right to be compensated formanagement of inheritancedistributed by way of legacies.

Section 131. Legacy of a thing subsequentlyacquired.

Section 132. Legacy of a thing belonging to the heiror legatee.

Section 133. Legacy of a thing which belongs onlyin part to the testator or to hissuccessors.

Section 134. Restraint on marriage.Section 135. Condition to reciprocate.Section 136. Deferred execution of the disposition.Section 137. Ineffective dispositions.Section 138. Legacy in the alternative.Section 139. Indivisibility of the disposition.Section 140. Supervenience of descendants.Section 141. Effect of supervenient children

predeceasing.Section 142. Legacy of a pledged thing.Section 143. Legacy of thing ascertainable at the

place where found.Section 144. Legacy of debt not fallen due.Section 145. Legacy made to the creditor of testator.Section 146. Unconditional legacy.Section 147. Choice of legacy of a generic thing.Section 148. Heir’s right to select.Section 149. Transmission of right to choose.Section 150. Legacy for maintenance.Section 151. Legacy of house with things existing

in it.Section 152. Legacy of usufruct.Section 153. Legacy to minor.Section 154. Legacy for charitable purposes.Section 155. Mistake as to object or subject of the

legacy.Section 156. Delivery of legacy.Section 157. Duty to carry out the will.Section 158. Fruits and income of legacy.Section 159. Legacy of periodic sums.Section 160. Expenses for delivery of legacy.Section 161. Manner and place of delivery.Section 162. New acquisitions.Section 163. Legacy of thing burdened with

encumbrance in rem.Section 164. Lien on immovable assets.Section 165. Duty of co-heirs to compensate when

the legacy consists of an asset of oneco-heir only.

Section166. Institution of heir or legatee subject tofulfillment of condition.

Section 167. Conditional legatee.Section 168. Responsibility of the heir apparent.Section 169. Reduction of encumbrance attached to

legacy.

RIGHT OF ACCRETION

Section 170. Right of accretion.Section 171. Exclusion of right of accretion.Section 172. Effects of accretion.Section 173. Renunciation of right of accretion.Section 174. Right to legacy.

SUBSTITUTIONS

Section 175. Common or direct substitution.Section 176. Pupillary substitution.Section 177. Quasi pupillary substitution.Section 178. Properties which may be subject to

substitution.Section 179. Rights and duties of the substitute.Section 180. Reciprocal substitution.Section 181. Fide commissary substitution.Section 182. Lapse of fidei-commissum.Section 183. Nullity of the substitution.Section 184. Dispositions which are not analogous

to fidei-commissum.Section 185. Deemed fidei commissum.Section 186. Encumbrances in favour of paupers,

etc.Section 187. Irregular fidei commissum.Section 188. Applicability to past and future fidei-

commissum.

DISINHERITANCE

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

ground.Section 194. Right to maintenance of the

disinherited heir.Section 195. Period of limitation to challenge

disinheritance.

CHAPTER XII

WILLS

Section 196. Concept of will.Section 197. Will is a personal act.Section 198. Will dependent upon instruction.Section 199. Disposition in favour of unnamed

relatives.Section 200. Conditional disposition.Section 201. Obstruction to fulfillment of condition.Section 202. Reason contrary to law.Section 203. Disposition where time for

commencement or cessation ofheirship is fixed.


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Section 204. Will obtained by coercion, undueinfluence, deceit or fraud.

Section 205. Duty of authorities.Section 206. When expressions are insufficient.Section 207. Prohibition imposed by testator to

challenge his will.Section 208. Joint wills.Section 209. Revocation of will.Section 210. Implied revocation.Section 211. Effect of will which has lapsed.Section 212. Restoration of will.Section 213. When testamentary dispositions

lapse.Section 214. Effect of ignorance of existence of

children.Section 215. Interpretation of wills.Section 216. Objects contrary to law, morality or

public policy.

WHO MAY MAKE A WILL AND ACQUIREBY WILL

Section 217. Capacity to make a will.Section 218. Incapacity to make a will.Section 219. Restrictions on disposition of

community assets.Section 220. Restrictions on disposing of specific

assets of the inheritance.Section 221. Relative incapacity of sick person.Section 222. Disposition in favour of a person who

has rendered domestic help or careand assistance.

Section 223. Relative incapacity – Disposition infavour of guardian or manager ofassets.

Section 224. Relative incapacity – Disposition byadulterous spouse.

Section 225. Relative incapacity – Disposition infavour of the Special Notary.

Section 226. Extent of nullity.Section 227. Restriction on impairment of

mandatory share.Section 228. Who may receive by will.Section 229. Relevant time to determine capacity

to acquire by will.Section 230. Consequence of incompetence to

acquire by legal succession.Section 231. Consequences of refusal to act as

executor or guardian or their removal.Section 232. Capacity of corporate bodies.Section 233. Fictitious disposition.

TYPES OF WILLS

Section 234. Types of wills.Section 235. Public will.

Section 236. Printed open will.Section 237. Closed or sealed will.Section 238. Incompetence to make a closed will.Section 239. Failure to present the closed will.Section 240. Fraudulent removal of will.Section 241. Where the closed will is found open.Section 242. Tampered or torn will.Section 243. Presumption as to who is responsible.Section 244. Torn will found amidst the effects of

the testator.Section 245. Wills under this Act to become

operative upon death.Section 246. Wills made outside Goa.

CHAPTER XIII

MANAGEMENT OF THE INHERITANCE:HEAD OF THE FAMILY

Section 247. To whom the office of head of thefamily belongs.

Section 248. When the guardian is appointed headof the family.

Section 249. Eldest of the spouses to be the head ofthe family.

Section 250. Special head of the family.Section 251. Duty to initiate the inventory.Section 252. When half of the income may be

distributed.Section 253. Rights and duties of the head of the

family.Section 254. Head of the family when there are only

legacies.Section 255. When the head of the family seeks

exemption or is removed.Section 256. Concealment of assets of the

inheritance by the head of the familyor heir.

Section 257. Fraudulent description.Section 258. Fraudulent concealment of

documents.

EXECUTOR

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

the office.Section 263. Time limit to decline appointment.Section 264. When the executor may resign.Section 265. Office of the executor is gratuitous.Section 266. Impediments to become executor.Section 267. Powers of the executor.Section 268. General duties of the executor.Section 269. Duty to initiate inventory.Section 270. When the testator leaves forced heirs.


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Section 271. Where the testator does not leaveforced heirs.

Section 272. Time limit to carry out the will.Section 273. Joint executors.Section 274. Duty to render accounts.Section 275. Office of executor not transferable or

heritable.Section 276. Accretion of remuneration.Section 277. Expenses of the executor.Section 278. When the executor is guilty of deceit

or fraud.

CHAPTER XIV

PARTITION

Section 279. Effects of partition.Section 280. Consequences of co-heir and moiety-

holder being deprived of possession.Section 281. Limitation for suit for damages.Section 282. Partition done out of Court.Section 283. Rescission in case of out of Court

partition.

CHAPTER XV

SUPPLEMENTAL PROVISIONS

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

Section 285. Notice to moiety holder or co-heirs.Section 286. Sham sale.Section 287. Creation of Easement.Section 288. Definition of usufruct.Section 289. Constitution of usufruct.Section 290. Extinguishment of usufruct.Section 291. Right of the usufructuary.Section 292. Determination of usufruct.Section 293. Emphyteusis.Section 294. Divisibility of the emphyteusis.Section 295. Acts contrary to law.

PART III

SPECIAL NOTARIES

CHAPTER XVI

ESTABLISHMENT OF DISTRICT SPECIALNOTARIES AND SPECIAL NOTARIES

Section 296. District and Sub-Districts.Section 297. Special Notaries.Section 298. Offices of the District Special Notary

and the Special Notary.Section 299. Absence of District Special Notary.Section 300. Absence of the Special Notary.Section 301. Seal of the District Special Notary and

the Special Notary.

Section 302. State Special Notary.Section 303. Qualifications.

CHAPTER XVII

FUNCTIONS OF THE SPECIAL NOTARY

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

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

only by way of authentic document.

CHAPTER XVIII

BOOKS, INDICES AND FIRE PROOF BOXES

Section 308. Obligation of the State to providebooks to the Special Notary.

Section 309. Books to be maintained by the SpecialNotary and District Special Notary.

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

books and other records.Section 313. Special Notaries to allow inspection of

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

District Special Notary to superintendand control the Special Notaries.

CHAPTER XIX

POWERS OF THE DISTRICT SPECIAL NOTARYAND THE SPECIAL NOTARY

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

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

by order of the District Special Notary.

CHAPTER XX

AUTHENTIC INSTRUMENT IN GENERAL

Section 323. Who may be witnesses, identifiers andcertifiers.

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


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CHAPTER XXI

PUBLIC OPEN WILL

Section 327. Identification of the testator and hiscondition.

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

unable to write.Section 331. When the testator is deaf.Section 332. Formalities to be complied with

without break.

CHAPTER XXII

PRINTED OPEN WILL

Section 333. Printed open will.

CHAPTER XXIII

CLOSED WILL

Section 334. Presentation of closed will andapproval by the Special Notary.

Section 335. Record of the approval of the closedwill.

Section 336. Failure to comply with formalities.Section 337. Delivery of the closed will.Section 338. Custody of the closed will and its

deposit with the Special Notary.Section 339. Who may deposit the will.Section 340. Special power of attorney for return of

the will.

CHAPTER XXIV

OPENING OF THE CLOSED WILL

Section 341. Formalities to open a closed will.Section 342. Proceedings on death of the depositor.Section 343. Book of record.

CHAPTER XXV

REGISTRATION OF THE CLOSED WILL AFTEROPENING

Section 344. Registration of will.Section 345. Withdrawal of sealed cover deposited

under the preceding section.

CHAPTER XXVI

INSTRUMENT OF DECLARATION OF HEIRSHIP

Section 346. Declaration of heirship.

CHAPTER XXVII

VOID NOTORIAL ACTS

Section 347. Notarial acts when void.

CHAPTER XXVIII

VALIDATION OF NOTARIAL ACTS

Section 348. Validation of notarial acts.

CHAPTER XXIX

CIVIL LIABILITY OF THE SPECIAL NOTARY

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

accept a draft.

CHAPTER XXX

CERTIFIED COPIES

Section 352. Who may apply.Section 353. To whom certified copy may be

delivered.Section 354. Time limit to issue certified copies.Section 355. When a reference is made to other

documents in the main instrument.Section 356. When a reference is made to a

drawing or plan in the maininstrument.

Section 357. Manner in which certified copy is tobe issued.

Section 358. When there are interlineations,erasures and corrections.

CHAPTER XXXI

FEES

Section 359. Fees to be fixed by the StateGovernment.

Section 360. Publication of fees.

CHAPTER XXXII

PENALTIES

Section 361. Penalty for incorrectly recording,endorsing, copying and translatingdocuments with intent to injure.

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

Section 363. Thing bona fide done or refused in hisofficial capacity by an officer actingunder this Act.


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Section 364. Nothing so done is invalidated bydefect in appointment or procedure ofappointment of an officer acting underthis Act.

CHAPTER XXXIII

MISCELLANEOUS

Section 365. Ex-officio powers and acts to be doneafter office hours.

PART IV

INVENTORY PROCEEDING

CHAPTER XXXIV

TYPES OF INVENTORY PROCEEDINGS

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

or annulment of marriage.Section 369. Inventory where a party dies after

allotment in inventory proceedingwhich were finally disposed of.

Section 370. Inventory upon death of the survivingspouse.

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

of joint family.

CHAPTER XXXV

JURISDICTION

Section 373. Jurisdiction.Section 374. Consolidation of inventories.

CHAPTER XXXVI

HEAD OF THE FAMILY

Section 375. Petition.Section 376. Order of appointment of Head of the

family.Section 377. Inquiry for appointment of head of the

family.Section 378. Evidentiary value of the declaration of

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

family.Section 380. Concealment of assets by head of the

family.Section 381. Consequences of concealment.Section 382. Consequence of giving a list of assets

based on false documents.Section 383. Duration of office of head of the family.

Section 384. Removal of the head of the family.Section 385. Discharge of the head of the family

from holding office.

CHAPTER XXXVII

HEARINGS

Section 386. Hearing in the inventory proceeding.Section 387. Prosecution of inventory.Section 388. Proceeding in absentia.Section 389. Parties under disability.Section 390. Discharge of guardian, etc.Section 391. Discharge or removal of guardian, etc.Section 392. Composition of the family council .Section 393. Death of moiety holder or heir during

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

proceeding and other objections.Section 395. Application to be declared as

interested party, legatee or creditorand to be made a party to theproceeding.

Section 396. Intended sale of a share in anundivided inheritance.

Section 397. Sale of share in the undividedinheritance.

Section 398. Order of priority and procedure.

CHAPTER XXXVIII

INITIAL LIST OF ASSETS

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

other objections.Section 401. When co-heirs are called upon to give

a list of assets.Section 402. Deletion of assets listed in the

preliminary list.Section 403. Disputes relating to concealment of

assets.

CHAPTER XXXIX

LIABILITIES OF THE INHERITANCE

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

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


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CHAPTER XL

FINAL LIST, CONFERENCE OF THE PARTIESAND PAYMENT OF DEBTS

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

conference, application for licitation.Section 414. Who may decide on behalf of persons

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

mode of payment.Section 417. Power of the Court to decide on debts.Section 418. Disagreement on the approval of

debts.Section 419. Payment of debts fallen due.Section 420. When debts are approved by some of

the interested parties only.Section 421. Resolution on mode of payment of

debts.Section 422. When do legatees decide on the mode

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

CHAPTER XLI

LICITATION

Section 426. Licitation of asset which is notsusceptible to division withoutdetriment.

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

CHAPTER XLII

SECOND VALUATION

Section 432. Second Valuation.Section 433. Inofficious legacy.Section 434. Procedure for second valuation.Section 435. Proposal on mode of partition should

be made.Section 436. Procedure for filling up the shares of

the parties.

CHAPTER XLIII

CHART OF PARTITION

Section 437. Chart of Partition.Section 438. Preliminary Chart.Section 439. Rectification.Section 440. Sortition.Section 441. Second and Third chart of partition.

CHAPTER XLIV

CONFIRMATION OF PARTITION

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

assets are delivered before the orderof homologation becomes final.

Section 445. Fresh partition.

CHAPTER XLV

AMENDMENT AND RESCISSION OF PARTITION

Section 446. Amendment of partition.Section 447. Suit for amendment of partition.Section 448. Rescission of partition.Section 449. Settlement of share of the heir left out

in the inventory.Section 450. Finality of the decision.

CHAPTER XLVI

APPEALS

Section 451. Appeals.

CHAPTER XLVII

PREVENTIVE MEASURES

Section 452. Appointment of receiver.Section 453. Temporary injunction.

CHAPTER XLVIII

MISCELLANEOUS

Section 454. Cause title.Section 455. Stamp duty payable.Section 456. Fixation of the amount of costs.Section 457. Enforcement of order.Section 458. Summary proceeding.Section 459. Power to make Rules.Section 460. Repeal and Savings.


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The Goa Succession, Special Notaries andInventory Proceeding Act, 2012

(Goa Act 23 of 2016) [19-9-2016]

AN

ACTto consolidate and amend the law of intestate

and testamentary succession, notarial law andthe laws relating to partition of an inheritanceand matters connected therewith.

Be it enacted by the Legislative Assemblyof Goa in the Sixty-third Year of the Republic ofIndia, as follows:—

PART I

GENERAL PROVISIONS

1. Short title, extent, commencement andapplication.— (1) This Act may be called theGoa Succession, Special Notaries and InventoryProceeding Act, 2012.

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

(3) It shall come into force on the 90th dayfrom the date of its 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 the

provisions 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 the Stateof Goa, before the Special Notary havingoffice in the sub-district where such personresides;

(d) any person born in Goa of parents whoare governed by the provisions of thecorresponding laws in force in the rest ofIndia provided that he chooses permanentresidence in the State of Goa and he declaresbefore the expiry of three years from thedate he attains majority that he desires tobe governed by this Act before the SpecialNotary having office in the sub-district wheresuch 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 manage


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his 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 have occurredin his presence or which he has certifiedand was competent to certify, unless it isproved that the document itself is fabricatedor 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 whom theestate leaver cannot deprive of the portionof his estate reserved to such heir by law,except in cases where the law permits theestate leaver to disinherit him;

(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 gift ora 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 ofa deceased person or to obtain a formalorder of allotment of inheritance by thecourt;

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

(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 the


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inheritance 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 certain relativesof a deceased person to succeed to all rightsto which such a person would havesucceeded, if alive;

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

(x) “Special head of the family” means thehead of the family restricted to certain assetsof inheritance, such as the donee who bringsthe 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 acts whichthe Special Notary is authorized to performby 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 thetransmission of the estate of a deceased personin favour 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) Successionmay be intestate or legal and testamentary.

(2) Testamentary succession is thesuccession which results from a will left by theestate leaver and a testamentary heir is a heirinstituted by a will. Contractual succession isillegal, except when expressly authorised bylaw.

(3) Intestate succession is either free orforced. Forced succession is the one which isreserved 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 he beentitled 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 the successor.

6. Inheritance.— Inheritance or successionof a deceased person comprises of all the


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properties, 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 day and itis not possible to ascertain who died the first,it shall be presumed that all died at the sametime and there will be no transmission of theinheritance or the legacy as between them.

CHAPTER II

Opening of the inheritance, competence tosucceed and transmission of ownership

and possession

8. Opening of the succession.— (1) Successionopens upon the death of the estate leaver.

(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 value ofthe properties. If the immovable propertiesof the deceased are situated partly in theState of Goa and partly outside the State ofGoa but within the country, the successionopens in the State of Goa irrespective of thevalue 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 the

State 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 havea permanent 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, whereverthe properties, movable or immovable, aresituated.

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:—

(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, the estateleaver 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 toan offence punishable with rigorousimprisonment for not less than two years,whatever its nature;


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(c) A person who, by deceit or coercion,induced the estate leaver to make, revokeor modify a will, or obstructed him from doingso;

(d) A person who has fraudulently spiritedaway, concealed, destroyed or suppresseda will, before or after the death of theestate leaver, or has benefited himself byany of his abovementioned 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 estate leavermay be filed within 1 year from the date ofknowledge of the cause of unworthiness laiddown 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,and such person shall, for all purposes beconsidered a person in malafide possessionof the 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 succeed

re-acquires competence to succeed if the estateleaver expressly rehabilitates him by a will ora deed drawn before a Special Notary.

(2) Where the testator does not expresslyrehabilitate such person, but the testatorbenefits him in the will when he was fully awarethat he had given cause to be unworthy tosucceed, the person may inherit within theparameters 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, the momentthe 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 disabilityor is absent, they may, by consent, partitionthe inheritance by executing a deed ofpartition under the Registration Act, 1908(Central Act 16 of 1908), provided such deedof partition is preceded by a deed of declarationof heirship.

16. Inheritance is indivisible till partition iseffected.— Where more than one person has aclaim 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 entitled todispose of any specific asset of the inheritanceor part of such an asset to a stranger until andunless the said asset or part thereof is allottedto him in the partition. Any such transfer, ifmade, shall be inoperative and void.

(2) Where, however, a co-heir transfers hisundivided right to the inheritance to a stranger,


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the transfer shall be subject to the right ofpre-emption.

18. Right of co-heir to claim the inheritancein its entirety.— Any heir may recover the wholeof the estate or part thereof in possession of athird party or obtain an injunction against suchparty under the provisions of the Specific ReliefAct, 1963 (Central Act 47 of 1963) and the lattershall be precluded from raising the plea thatsuch estate or part thereof does not solelybelong to such co-heir.

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

(2) No co-heir or moiety holder may renouncethe right to demand partition of the inheritance.

(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 withthe provisions that govern partition amongstco-heirs.

CHAPTER IV

Acceptance and Renunciation ofthe inheritance

21. Acceptance of inheritance.— Acceptanceof 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 not entitledto accept or renounce an inheritance withoutwritten consent of the other spouse. Theconsent 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 inheritanceleft to a deaf and dumb person.— A deaf anddumb person, who is not under guardianshipand who knows to write, may accept orrenounce the inheritance, either personally orthrough a constituted attorney.

29. Form of acceptance.— (1) The acceptanceof inheritance is express or tacit.

(2) The acceptance is express when in anydocument the heir accepts the title or qualityof heir. The acceptance is tacit, when the heirdoes some act from which the intention toaccept has to be necessarily inferred or the actdone is of such a nature that he could not havedone it otherwise than as an heir.

(3) However, acts done solely to preserve orto provisionally manage or safeguard the assetsof the inheritance do not imply it’s acceptance.

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 deemed tobe renunciation of the inheritance.

31. Consequences of Court decision declaringa person to be an heir.— A person who has beendeclared to be an heir by an order or decree ofa Court that has become final or a personagainst whom a decision has been passedexpressly in that quality shall be deemed to bean heir both in relation to the creditors or the


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legatees who had been parties to the case asalso in relation to others.

32. Absence of consensus among heirs toaccept or renounce inheritance.— Where thereis no consensus amongst the heirs as towhether the inheritance should be renounced,some may accept it and others may renounceit.

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

(2) When made before the Court, it shall bedrawn 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 and shallbe preserved as a permanent record of thecourt.

(4) When an heir renounces the inheritancethrough his attorney, the power of attorney

shall 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 made throughan attorney, the original power of attorney withthe specific power to renounce shall bepreserved in the court or office of the SpecialNotary, as the case may be.

36. Consequences of renunciation.— (1) Wherethe person who is called to succeed, renouncesthe inheritance, he shall be deemed to havenever been an heir. There is no right ofrepresentation in this case. But therenunciation of the inheritance does notdeprive the person who has renounced ofthe right to receive the legacies which mighthave been 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 inheritanceas an intestate heir without having knowledgeof the will, he may accept the inheritanceunder the will, notwithstanding the formerrenunciation.

37. Implications of renunciation of disposableshare.— A renunciation of the disposable shareshall not imply renunciation of the mandatoryshare, unless it is expressly made.

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 byfraud; 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.


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(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 to theheir who had renounced it.

40. Prohibition to renounce.— No person ispermitted to renounce, whether in the ante-nuptial agreement or otherwise, the right toany future inheritance or to alienate or createa charge on the rights which he may eventuallyhave 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) The personwho is called to succeed is not debarred, evenif he has not yet accepted or renounced theinheritance, from taking steps to manage theassets when delay may cause injury.

(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 such

reasonable 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 immediate heirsshall be notified and so on, successively, till noperson comes forward to claim the inheritanceover 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 dateof knowledge 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.

(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 inthe following order of priority:—

(1) the funeral and other expensestowards last rites and religious services forthe soul of the estate leaver;

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


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(3) towards the payment of the debts ofthe deceased for the satisfaction of thelegacies.

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 the heirs,at the end of the usufruct the sums advanced.

(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 a shareof the estate, the usufructuary is bound tocontribute only in proportion to his share forthe satisfaction of the legacy for maintenanceor lifetime pension annuity or monthlyallowance.

(3) The usufructuary of specified assets is notbound to contribute for the aforementionedmaintenance or lifetime pension annuity if suchburden is not imposed on him expressly.

49. Rights and duties of the heirs in respect ofthe inheritance.— (1) The heir shall retain, asagainst the inheritance, till partition, all therights and obligations vis-a-vis the deceased,with the exception of those that getextinguished upon the death of the 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.— Ifa will is declared null or is annulled after thesatisfaction of the legacies made in good faith,the presumptive heir is discharged of hisobligation towards the true heir, by handingover the remainder of the inheritance to thetrue heir, without prejudice to the rights of thelatter against the legatees.

CHAPTER VI

Legal Succession

51. When legal succession takes place and itsextent.— 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 shallinherit the 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;

(iii) on the brothers and their descendants;

(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 in clauses(i), (ii) and (iii) of sub-section (1), the agriculturalproduce or fruits, gathered or growing, meant


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and necessary for the maintenance of thecouple shall be deemed to be the personalproperty of the surviving spouse, providedthat on the date of the opening of theinheritance there is no suit for divorceor separation of persons and properties,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; butwhere only some of the co-heirs renouncetheir shares, such shares shall be added tothe shares of the other co-heirs within thesame group.

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

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

59. How degrees are counted in the directline.— In the direct line, the degrees are

counted 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 willare incompetent to acquire by legalsuccession.

62. Extent of Incapacity.— The incapacity ofthe 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.— Theright of representation takes place always inthe direct descending line but never in theascending line.

65. Representation in the collateral line.— Inthe collateral line, the right of representationtakes place in favour of the descendants ofthe brothers and sisters of the deceased.

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

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


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CHAPTER VIII

Order of SuccessionSuccession of Descendants/Ascendants

68. Succession of children and theirdescendants.— Children and their descendantssucceed to their respective parents and otherascendants, 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 bydocumentary evidence, such party will haveto 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, heshall, on his application, be impleaded in theinventory proceeding and participate in theproceeding from the stage it has reached or,where the partition in such proceeding hasbeen homologated, he shall have his sharesettled in money as provided in section 449.

70. Succession per capita.— Where all thedescendants are of the first degree, they shallsucceed per capita and the inheritance shallbe divided into as many shares as the numberof heirs.

71. Succession per stirpes.— Where all orsome of the heirs have a claim by virtue ofthe right of representation, they shall succeedper stirpes or by forming branches amongstwhom the inheritance shall be distributed andsub-divided into branches where there is morethan one heir. The rule of equality shall beobserved both in the division and in thesub-division.

Succession of Ascendants

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

(2) However, if there are full blood brothersor sisters of a predeceased child ordescendants of the deceased full blood brothersor sisters of such child, the father or the motherwho has married again does not inherit theassets which the predeceased child hadinherited from the other progenitor or from hisother ascendants but only the usufruct thereof.

(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 ofthe 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 amongst themin equal shares, irrespective of whetherthey belong to the paternal or maternalline.

75. When ascendants are not in the samedegree.— Where the ascendants are not inthe same degree, the inheritance shall devolveon the nearest one, without distinction ofthe line.

Successsion of Brothers, Sisters and theirDescendants

76. Succession of brothers, sisters and theirdescendants.— In default of descendants and


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ascendants 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.— Indefault of descendants, ascendants, brothers,sisters and their descendants, the survivingspouse shall succeed, provided that at the timeof the death of the other spouse, they were notdivorced or there had been no judicialseparation of spouses and assets by a decisionwhich had become final.

78. Collaterals other then brothers, sisters andtheir descendants.— Where the deceased is notsurvived by any of the persons mentioned inclauses (i), (ii), (iii) and (iv) of sub-section (1) ofsection 52 and has not disposed off his assets,it shall be inherited by the collaterals otherthen brothers, sisters and their descendantstill the 6th degree.

Succession of the State

79. Succession of the State.— In default of alltestamentary or legal heirs, the State shallsucceed.

80. Rights and duties of the State.— Therights and obligations of the State in respectof the inheritance shall be the same as thoseof any other heir.

81. Prior court order.— The State shall nottake possession of any inheritance without priordecision of the court declaring it’s rightsthereto.

CHAPTER IX

Preferential, Right of the Spouse

82. Preferential right of habitation and use ofsurviving spouse.— (1) The surviving spouse ofthe estate leaver shall have the right toexclusive habitation of the residential house ofthe 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 and thesurviving spouse shall pay owelty to the heirsif 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 inhabitthe house for a period of one year, the rightshall cease.

(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 andReduction

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 estateleaver, 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 the survivingparents 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,


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their legitime shall consist of one third of theinheritance.

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 and theirspouses give their consent thereto in writing.

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 disposable portion,the forced heirs may give effect to the legacyor deliver to the legatee the disposable portiononly.

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 thegift or the testamentary disposition be reduced.

88. Renunciation of right to claim reduction.—No person shall during the lifetime of the estateleaver renounce his right to have the gift orwill reduced.

89. Computation of disposable portion.— (1)For the purposes of reduction of inofficious giftsor 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 be thevalue they had on the date of the opening ofthe 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 in favourof the forced heir impairs the mandatory shareof the other forced heirs, the donee shall bebound 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 a giftin favour of his forced heirs without stating thatit shall be reckoned in the disposable share,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 would haveto collate, notwithstanding that thegrandchildren have not inherited from theparents.

94. When parents are not bound to collate. —Parents are not bound to collate to the


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inheritance of their ascendants what was giftedby the latter to their children nor are thechildren bound to collate what was gifted tothem during the lifetime of their parents, in casethey succeed to them by virtue of the right ofrepresentation.

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 spouse oftheir 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 of thevalue 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 have spentto the benefit of their parents or given to themwithout being by way of gift, shall be deductedfrom the amounts to be collated.

(4) Where the deceased has made expensesin favour of his children for settling them in lifeor for payment of their debts, which have to becollated 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 any

properties 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 collationshall be made in money, based on the value ofthe 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 in value ofthe things gifted will not be taken into account,where the donee or his representatives areresponsible for their deterioration anddiminution in value, by reason of an actcommitted by them or by reason of theirnegligence.

(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 part


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in the licitation of the properties, which he hasto return to the other co-heirs. In case, amongstthe gifted properties, there is any propertywhich is physically indivisible and which in itstotality does not fit in the share of the donee, itshall be collated in kind and the donee shallbe entitled to take part in the licitation, subjectto the provision of section 427.

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 inter vivosby a married couple, with or without thereservation of usufruct and with the writtenconsent of all the presumed forced heirs, of theirassets or a part thereof to any one or more ofthe presumed forced heirs, where the doneescompensate or undertake to compensate thepresumed forced heirs of their future mandatoryshare, is valid and shall not be deemed to be acontractual succession. Any change in thevalue of the assets at the time of the openingof the inheritance shall, in these cases, beirrelevant.

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 timeof the opening of the inheritance of the donorwho has predeceased. This value shall becorrected as regards the second inheritance, ifneed 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 areimmovables, and if it is not possible to fill upthe shares of the co-heirs in the aforesaidmanner, the said co-heirs shall be compensatedin money. If there be no funds in the inheritance,as many properties as may be necessary tofetch the required amount, shall be sold inpublic auction. If the assets are movable, theco-heirs shall be compensated with othermovables, 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.— Wherethere are several donees, and the disposableportion is not sufficient to satisfy all the donees,the provisions of sections 113 and 114, shallbe followed.

107. Dispute as regards obligation to collate.—Where there is a dispute between the co-heirsregarding the obligation to collate or over thesubject of collation and the dispute cannot bedecided in the inventory, the inventoryproceeding shall not be stayed on that ground


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and the person bound to collate, shall furnishsecurity in respect of the properties gifted tohim till the dispute is decided by a competentcourt.

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) Wherethe legacy or the gift impairs the legitime ofthe forced heirs, the legacy or gift may bereduced for inofficiousness to the extentnecessary to make up the legitime.

(2) For the purpose of determining whetherthere is inofficiousness, the disposable shareshall be computed as provided in section 89.

111. Order of reduction.— Where inofficiousgifts have been made, gifts mortis causa orlegacies shall be reduced first and the gift intervivos shall be reduced only when legacies arenot sufficient to make up the legitime of theforced 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 the legatees,unless the testator has in his will stated thatany one of the legatees shall be exempted fromreduction or which shall be the order ofreduction.

113. Reduction of gifts inter vivos.— Wheregifts inter vivos are to be reduced, the last shallbe reduced first in its totality or in part, and

when the last gift is not sufficient to make upthe legitime, the next immediate shall bereduced 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 gift inaccordance with the general rules of partition.


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119. When immovable properties are not inpossession of the donee.— Where the immovableproperties are not in possession of the doneeat the time of the reduction or revocation, heshall be liable for its value at the time of theopening of the inheritance. If the donee hasalienated the gifted assets, he shall have tocompensate in cash and if the donee hasmortgaged the gifted assets, the heir to whomsuch assets have been allotted shall be entitledto redeem the mortgage and claim the amountof redemption including the expenses incurredin that regard from such donee.

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 more personsmay be instituted as heirs and even where thetestator has left them shares in the inheritancein a certain proportion, they shall neverthelessbe considered as heirs.

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

124. Liability of the legatee.— The legatee isnot 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, the

debts 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 managementof inheritance distributed by way of legacies.—The heir, who has managed the inheritancewhich has been distributed by way of legacies,shall be entitled to be compensated by thelegatees for the expenses which he has incurredtowards 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 to belong


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to him under any title, the bequest shall takeeffect as if such thing belonged to the testatorat the time the will was made.

132. Legacy of a thing belonging to the heiror legatee.— Where the testator directs thatthe 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 only inpart to the testator or to his successors.— Wherethe testator, the heir, or the legatee, is theowner of a part only of the bequeathed thingor has a limited right only to the bequeathedthing, the bequest shall take effect only to theextent of such part or of such right.

134. Restraint on marriage.— (1) Thecondition which prohibits the heir or thelegatee from getting married, or from remainingunmarried, except when the same is imposedon a widow or widower having children, bythe deceased spouse or by his or herdescendants or ascendants and so also thecondition which compels him to take priesthoodvows or to take or not to take a certain andspecified profession, shall be deemedinexistent.

(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 holds aparticular status, namely, bachelorhood,widowhood, or married status.

135. Condition to reciprocate.— Thedisposition made on condition that the heir orlegatee shall also make in his will a dispositionin favour of the testator or of another person,shall be 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 res extra-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 beendispossessed of the bequeathed thing by aperson having a lawful title thereto or it hasbeen wholly destroyed during the lifetime ofthe testator and the heir is not responsibletherefore.

138. Legacy in the alternative.— (1) Where alegacy is in the alternative, that is, the testatormakes a bequest of one of two or more thingsand one of them is destroyed, the existingthing or things shall be delivered to thelegatee.

(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 time alegatee, may relinquish the inheritance andaccept the legacy and vice versa.

140. Supervenience of descendants.— (1) Thewill made by a person who did not havechildren at the time of making it or did notknow that 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 bereduced as inofficious in accordance withsection 110.


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

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

143. Legacy of thing ascertainable at the placewhere found.— The legacy of a thing or aquantity which is to be received at a fixed place,shall take effect only to the extent of the portionthat 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 thing wasnot 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 of testator.—(1) Where the testator makes a bequest tothe creditor without making any reference tothe debt of the testator, the legacy shall notdeemed to have been made in payment ofdebt.

(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; but

when 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 uncondi-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 anunspecified thing comprised in other things ofthe same kind, the selection of such thing shallbe made by the person who has to hand it overfrom 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 the legacyis in the alternative and the right to select hasnot been expressly conferred on the legatee,the heir shall have the right to select.

149. Transmission of right to choose.— Wherethe heir or legatee who has the right to select,has not made such selection during his lifetime,such right shall devolve on to the heirs. Oncethe selection is made, it shall be irrevocable.

150. Legacy for maintenance.— (1) Where alegacy is given for the maintenance of a legatee,the legacy shall include food, clothing andlodging and, when the legatee is below 18years of age, it shall also include education,unless otherwise provided in the will.

(2) The maintenance given for education maybe reduced in the event the ability to give orthe need to receive, is reduced.

151. Legacy of house with things existing init.— Where a house with all things foundtherein is bequeathed, the bequest shall notinclude debts due to the inheritance


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notwithstanding 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 its durationshall be construed to have been made for thelifetime of the legatee and where such legateeis a body with perpetual succession, the legacyshall be construed to have been made for aperiod 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 ofthe testator.

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 inheritance,the legatees may apply that a curator beappointed for the inheritance and demand thedelivery 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 legatee insimilar circumstances, such legatees shallchoose one of them to be the executor.

(3) When there is no agreement between thelegatees, or when any of such legatees is aminor, absent person or under interdiction, theexecutor 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 of thedeath of the testator, as well as to the interestaccrued from the money bequeathed, from theexpiry of the time to carry out the legacy.

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.


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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, usefulor luxurious, it shall form part of the legacy.

163. Legacy of thing burdened withencumbrance in rem.— If the bequeathed thingis burdened with any emphytheutic fee, sharein the rent, easement or any other encumbranceinherent thereto, the bequeathed thing shallgo to the legatee with the encumbrance.However, if such encumbrances are in arrears,such arrears shall be met 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 anyone of the heirs is specifically made liable forany such payment, the legatee can exercisethis right over the immovable asset which maybe allotted to the said heir in the partition.

165. Duty of co-heirs to compensate when thelegacy consists of an asset of one co-heir only.—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 the inheritanceor the legacy has been left subject to thecondition that the heir or legatee should notgive a specified thing or should not perform aspecified 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 after thepayment of the legacy and the legacy has beensatisfied in good faith, the heir instituted in thewill shall stand discharged of his responsibilitytowards the true heir by delivering theremainder of the inheritance.

(2) The preceding provision shall also beapplicable to legacies subject to encumbrances.

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 proportionatelyand, in case he is dispossessed from thebequeathed thing, the legatee may demand therestitution of whatever was paid by 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 the rightto accretion, if the legatees do not want or areunable to receive the legacy.

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

(2) If the bequeathed thing is indivisible orcannot be divided without detriment, theco-legatees shall have the option either toretain the whole thing against payment tothe heirs 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.


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172. Effects of accretion.— The heir whoacquires a share in the inheritance by reasonof accretion shall succeed to all rights andobligations of the heir who did not wish or couldnot receive the disposition, had it beenaccepted by him.

173. Renunciation of right of accretion.— Theheirs 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 to theperson or persons in whose favour theencumbrances have been created.

174. Right to legacy.— The legatee shall havethe right to recover the bequeathed thing,whether movable or immovable, from a thirdparty, provided that the bequeathed thing iscertain and specified.

Substitutions

175. Common or direct substitution.— Thetestator may appoint one or more persons tosubstitute the instituted heir or heirs or legateesin case such heirs or legatees cannot or do notwish to accept the inheritance or the legacy.This is called common or direct substitution.Such substitution ceases to operate upon suchheir accepting the inheritance.

176. Pupillary substitution.— (1) The testator,who has children or other descendants underparental authority, who will not upon the deathof the testator be under the authority of anotherascendant, may substitute the said children orother descendants by heirs or legatees of hischoice, in case the said children or otherdescendants die before completing eighteenyears of age, irrespective of their sex. This iscalled pupillary substitution for minors.

(2) Such substitution becomes ineffectivewhen,—

(a) the person substituted attains theage of eighteen years or

(b) the substituted person diesleaving behind descendants entitled tosucceed.

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 ineffectiveif 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.— Thesubstitute shall receive the inheritance orlegacy with the same encumbrances, withwhich the substituted heirs or legatees wouldhave received, with the exception ofencumbrances which are solely personal,unless it has been provided otherwise.

180. Reciprocal substitution.— When theco-heirs or legatees with equal shares arereciprocally substituted, it shall be deemedthat they have been substituted in thesame proportion. However, if the numberof substitutes exceeds the number ofinstituted heirs or legatees and no provisionin that regard has been made, it shall bedeemed that they were substituted in equalshares.

181. Fide-commissary substitution.— (1) Thetestamentary disposition whereby any heir orlegatee is bound to preserve the inheritanceor the legacy which on his death is to go toa further beneficiary is called the fide--commissary substitution or fidei-commissumand such heir or legatee is called fiduciary andsuch further beneficiary shall be called fidei-commissarius.

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


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182. Lapse of fidei-commissum.— If thefidei-commissarius, who is the ultimatebeneficiary, does not accept the inheritance,or dies before the fiduciary, the substitutionshall lapse and the fiduciary shall be theabsolute owner of the properties.

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

184. Dispositions which are not analogousto fidei-commissum.— Dispositions wherebythe testator leaves the usufruct to oneperson and the naked ownership to another orsuccessive usufructs are not fide-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 of paupers,or in favour of any public utility institution orfoundation are valid. In this case, however, theburden shall be charged on specific assets andsuch heir or legatee shall be allowed tocapitalize, or convert the instalments intocorresponding capital in money.

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 the precedingsections are applicable to past and futurefidei-commissum.

Disinheritance

189. Disinheritance.— The forced heirs maybe deprived by the testator of their legitimeor be disinherited by declaring his wish inthe will, only when the law expressly permitshim to 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 is convictedfor an offence intentionally committedagainst the testator, his spouse, ascendants,brothers, adopter or adoptee, punishablewith imprisonment of more than sixmonths;

(b) the presumed heir who has beenconvicted for having lodged maliciousprosecution or for perjury against any of thepersons mentioned in the clause (a) above;

(c) the presumptive heir who, withoutsufficient cause, refused to maintain thetestator and or his spouse.

191. Effects of disinheritance.— Thedescendants of the disinherited persons, whosurvive the testator, shall be entitled to thelegitime which their ascendant was deprivedof, but the ascendant who was disinheritedis not entitled to enjoy the usufruct of thelegitime received by his descendants.


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192. Burden of proof.— When the ground fordisinheritance is contested, the burden ofproving that such ground exists shall be on thepersons who benefit from the disinheritance.

193. Failure to mention ground or irrelevantground.— When the testator declares that hedisinherits without clearly mentioning theground or when the ground is not proved orthe ground is unlawful, the dispositions of thetestator affecting the legitime of the disinheritedheir, are void to that extent.

194. Right to maintenance of the disinheritedheir.— When the disinherited heir has no meansof subsistence, the beneficiary of the assets ofwhich the disinherited heir has been deprivedis bound to provide maintenance to him butnot beyond the income of the said assets,unless the said maintenance is due for any otherreason.

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 notcontain disposition 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, shall nottake 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 presumed tohave been made in favour of the nearestrelatives of the testator or of the personindicated, as per the order of legal succession.

200. Conditional disposition.— The testatormay either make an unconditional dispositionof his estate or he may dispose of his estatesubject to conditions, provided such conditionsare not absolutely or relatively impossible ofperformance or contrary to law, morality orpublic policy. A condition which is impossibleof performance or contrary to law morality orpublic policy shall be presumed to be inexistentand shall not adversely affect the heirs orlegatees notwithstanding that the testator hasprovided to the contrary.

201. Obstruction to fulfillment of condition.—Where a person who is interested in the non--performance of the condition, obstructs itsfulfillment, the condition is presumed to havebeen fulfilled.

202. Reason contrary to law.— Where thetestator gives the reason or motive for makingthe will and the reason or motive, whethertrue or false, is contrary to law, the dispositionshall be null and void.


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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 or cease,such a declaration shall be deemed as notwritten 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 administrativeauthority which comes to know that a personis preventing another from making a will is dutybound to go promptly to the house of the personso prevented with a Special Notary and twowitnesses. Upon verifying that the informationis true, set the said person free to make a willand he shall also cause a report to be writtenand forwarded to the Assistant PublicProsecutors/Public Prosecutor.

A person who prevents another from makinga 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 their commonbenefit or for the benefit of third parties.

209. Revocation of will.— (1) A will maybe freely revoked by the testator fully or in

part by another will or by a deed beforethe Special Notary with the same formalrequirements.

(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 the inheritanceby the heir or by the legatee.

212. Restoration of will.— Where the testatorrevokes the subsequent will and declares thathe wishes that his earlier will shall subsist, theearlier will shall stand restored.

213. When testamentary dispositionslapse.— A testamentary disposition shalllapse and become ineffective in relation tothe heir or 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 legatee renounces 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 children areborn to the testator after his death, or wherethe children are born to the testator before hisdeath, but after the will was made, the willshall be valid only to the extent of thedisposable portion of the testator, inaccordance with section 140.

215. Interpretation of wills.— (1) Where anydoubt 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 or publicpolicy.— A testamentary disposition is voidwhen from its interpretation it follows that thewill was intended essentially for an objectcontrary to law, morality or public policy.

Who may make a will and acquireby 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) A personwho is not in his full senses or a person of eithersex under 18 years of age, is incompetent tomake a will. Blind persons, or persons whoare unable or do not know to read areincompetent 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 of communityassets.— A disposition of specific and

determined properties by a person who ismarried under the regime of general communityof 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 who assistedhim spiritually during his illness shall not takeeffect if the sick person dies of that illness.

However, (a) a legacy by way ofremuneration for the services rendered to thesick person when such person was not paidany remuneration for the services or (b) adisposition made in favour of the descendants,ascendants, collaterals till the third degreeor to 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 person shallnot exceed one third of the value of inheritance.However, a disposition made in favour ofascendants and descendants, collaterals till


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the fourth degree or the spouse of the testatoris valid.

223. Relative incapacity-Disposition in favourof 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 been alreadyapproved, 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 relative incapacityof the testator shall be null and void.

227. Restrictions on impairment of mandatoryshare.— Persons who are bound by law toreserve the legitime may dispose of only thedisposable portion.

228. Who may receive by will.— (1) Onlyliving persons, including an embryo, mayacquire by will. The embryo is deemed to existwhen born alive and with human figure within300 days from the death of the testator.

(2) However, the disposition is valid evenwhen the future heir or legatee is born beyondthe period of 300 days from the date of the deathof the testator, if the disposition is in favourof the children yet to be born who aredescendants in the first degree of certain orspecified persons alive at the time of the deathof the testator.

229. Relevant time to determine capacity toacquire by will.— The relevant time todetermine the capacity to acquire by will is thetime of the testator’s death. Where an heir isinstituted subject to condition, or where thelegacy is left subject to conditions, the relevanttime to determine the capacity to acquire bywill is not only the date of the testator’s deathbut also the time of fulfillment of the condition.

230. Consequence of incompetence to acquireby legal succession.— A person who isincompetent to acquire by legal succession asprovided in section 9 is incompetent to acquireby testamentary succession.

231. Consequences of refusal to act as executoror guardian or their removal.— The executorwho refuses to accept the office or who, havingaccepted the office, is removed therefrom onaccount of mismanagement and so also thetestamentary guardian who refuses the officeor is removed therefrom, forfeits the right towhatever is bequeathed to him by the testator.

232. Capacity of corporate bodies.—Corporate bodies, associations, trusts, or otherlegal entities may succeed by will as heirs orlegatees.

233. Fictitious disposition.— (1) A will madein favour of an incompetent person byostensibly making it in favour of anotherperson with an understanding that it willbenefit the incompetent person or through anintermediary shall be null and void.

(2) A testamentary disposition is deemed tohave been made through a fictitious personwhen it is made in favour of the spouse of theperson who is incompetent to acquire by willor to a person whose presumptive heir he is orwhen made in favour of a third party who hasagreed with the person who is incompetentto acquire by will that he will transmit thebenefit of the will in favour of the latter.

Types of Wills

234. Types of wills.— Wills may be of thefollowing categories:–


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(a) Public;(b) Printed open;(c) Closed or sealed;(d) Wills made outside Goa.

235. Public will.— A testator who wishes tomake a public will has to declare his last wishbefore any Special Notary in the presence oftwo witnesses, worthy of credit so that he mayrecord the will in the Book of Wills.

236. Printed open will.— A testator whoknows 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 of 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 worthy witnesses,who shall identity the testator, and certify thatthe testator is in his senses and free fromcoercion.

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 in thewill by the Special Notary.

238. Incompetence to make a closed will.—Persons who do not know or are unable to readare not competent to make dispositions by wayof a closed will.

239. Failure to present the closed will.—Where a person who is in possession of theclosed will, and, where the will is made by anabsent person, does not present it or, in caseof the testator’s death, does not present itwithin thirty days from the date of theknowledge of the death, he shall be liable topay damages. Where the person who fails topresent the will is guilty of deceit, he shall,besides being liable to pay damages, forfeit his

right, if any, to the inheritance of the testatorand shall also be liable for criminal prosecution.

240. Fraudulent removal of will.—Any personwho fraudulently removes the will from theeffects of the testator or from the possession ofany person with whom it is deposited shall besubject to pay damages, forfeit his right to theinheritance and shall also be liable for criminalprosecution.

241. Where the closed will is found open.—Where the closed will is found opened, whetheramidst the effects of the testator or in thepossession of a third party but without anyother defect, it shall not be annulled for thatreason. In such a case, the will shall bepresented as it is to the Special Notary of thesub-district, who shall draw a record statingthe above facts in accordance with sections341, 342, 343 and 344.

242. Tampered or torn will.— Where the willis found open and tampered with, or torn, thefollowing 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 personother than the testator has tampered withthe will, the provisions of sections 239 and240 which are applicable to a person whofraudulently withholds or removes the willshall be applicable to such person.

243. Presumption as to who is responsible.—Where the will is tampered with, it shall bepresumed that the tampering was done by theperson to whom the will was entrusted untilthe contrary is proved.

244. Torn will found amidst the effects ofthe testator.— Where the will is found to betorn or reduced to pieces amidst the effects of


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the testator, the will shall be deemed to be non-existent, notwithstanding that it is possible toput 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 inheritancehead of the family

247. To whom the office of head of the familybelongs.— (1) The office of head of the familybelongs 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 withthe estate leaver.

248. When the guardian is appointed head ofthe family.— Where there is no survivingspouse nor heirs referred to in section 247, thecourt shall appoint the guardian of the heirsunder disability as the head of the family andwhere there is more than one group of heirswith different guardians, such guardian as ischosen by the court and, till such time there isno guardian appointed by the court, the courtshall appoint provisionally a receiver fromamongst the nearer relatives of the heirs underdisability.

249. Eldest of the spouses to be the head ofthe family.— Where an inventory is institutedconsequent upon divorce, separation orannulment of marriage, the head of the familyshall, where the marriage is governed by theregime of community of assets, belong to theeldest spouse and where the marriage isgoverned by the regime of separation of assets,to the spouse who owns the assets; if thereare any community assets, the eldest shall bethe head of the family in respect thereof.

250. Special head of the family.— The co-heirswho on the date of the opening of theinheritance, were in possession of certainproperties of the inheritance and so also theheirs who have to restitute gifted propertiesto 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 bedistributed.— After the assets and liabilitieshave been listed in the inventory proceeding,any party may apply that half of the incomeof the properties which have not beenbequeathed be distributed among the co-heirs


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taking into consideration the value which hasbeen attributed to them; the head of the family,who fails to comply with such direction issuedby the court, shall be removed forthwith andshall be liable to pay compensation for thedamage caused.

253. Rights and duties of the head of thefamily.— The head of the family, as manager ofthe estate, shall receive the fruits and profitsof the properties in his possession and shallmeet the normal liabilities and shall have theduty to render accounts in case the usufruct ofthe said properties does not belong to him.

However, the head of the family shall notalienate any properties of the estate other thanfruits or other things which cannot be preservedwithout fear of deterioration.

254. Head of the family when there are onlylegacies.— Where the inheritance is distributedby way of legacies only, the most benefited shallbe the head of the family; and if allcircumstances are equal, the eldest shall havepriority.

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 inheritanceby the head of the family or heir.— (1) Themoiety holder or heir who fraudulently concealsassets of the inheritance, whether as head ofthe family or not, forfeits in favour of the heirsor co-heirs, as the case may be, the right hemay have to the concealed assets.

(2) The person who conceals assets isdeemed to be merely in custody of those assets

and the Court may order him that they behanded over to the head of the family.

257. Fraudulent description.— The head of thefamily who fraudulently describes credits, rightsor encumbrances which are founded on sham,false or falsified documents of title, shall beliable to pay damages for the injury caused andhe shall be criminally liable.

258. Fraudulent concealment of documents.—The head of the family, who concealsfraudulently documents of title necessary totake cognizance of the nature of, or of theencumbrances on, the partible assets, shallbe liable for the losses caused by suchomission.

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.— Thecourt may appoint an executor when the heirsdo not agree on the choice of the executor.Where there are minors, interdicted or absentheirs, any interested party may apply to thecourt that an executor be appointed. Theapplicant shall disclose who are the otherinterested parties and he may propose theperson who in his view is best qualified forbeing 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 the executoras compensation for discharging the functionsof executor, he shall not be entitled to claimthe legacy.

263. Time limit to decline appointment.— Theappointed executor who is not willing to acceptthe appointment, shall, within thirty days fromthe knowledge of the will, so inform, by


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registered post, the Special Notary of the placewhere the inheritance opens with a copy toany one of the beneficiaries under the will. Incase of his failure to inform the authoritiesmentioned above, he shall be liable to paydamages.

264. When the executor may resign.— Theappointed executor who has accepted the office,may quit the office upon showing just causesuch as disability due to illness, absence for along period or incompatibility with thedischarge of a public office and upon obtainingan order of the court competent in terms ofsection 373. Such Order shall be made afterhearing the parties. In case he quits the officewithout order of the competent Court, he shallbe liable to pay damages.

265. Office of the executor is gratuitous.—The office of the executor is gratuitous, unlessremuneration is provided for by the testator,in the will.

266. Impediments to become executor.—Where there is an impediment which does notpermit the person appointed as executor toassume the office or the executor is discharged,the heirs shall carry out the purpose of the willand they shall be subject to the followingprovisions:–

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

(b) where the hereditary shares are equal,the parties shall appoint the executor fromamongst them, and, in case of disagreementor when one of them is a minor or an interdictor an absent person, the competent Courtshall appoint one amongst 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 shall

nevertheless 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 date ofthe 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 will orwhich 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) ofsub-section (1) shall not be applicable wherethe inheritance or legacy was left for theaforesaid purpose to an institution with legalpersonality or a trust already in existence.

270. When the testator leaves forced heirs.—Where the testator leaves forced heirs, the


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testator shall not authorize the executor to takecharge of the estate. However, the testatormay direct that the forced heirs shall not takecharge thereof, unless inventory proceeding areinstituted and the executor is served.

271. Where the testator does not leave forcedheirs.— (1) Where the testator leaves heirs whoare not forced heirs, he may authorize theexecutor to take charge of the estate but heshall not exempt the executor from institutinginventory proceeding.

(2) Such heirs may prevent the executor fromtaking charge of the estate by providing to himthe necessary amount to meet the expensesfor 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 or immovableshall 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 or

legacies, if the testator has so directed, subjectto section 269.

(4) Where the executor has failed to dischargehis duties within the time fixed, he shall forfeitthe remuneration left to him, and the will shallbe executed, by the persons who have the dutyto execute it, as if no executor has beenappointed.

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, theexecutorship shall lapse and the will shall beexecuted by the person who has the duty to doso as if no executors had been appointed.

274. Duty to render accounts.— The executorshall render accounts of his management to theheirs or their lawful representatives. For thispurpose, the executor may, if necessary, file anapplication to the competent court. Whereinventory proceedings are instituted, suchan application 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.— Where thetestator has bequeathed to joint executors, thepart of the remuneration of the executor whohas 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 for


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which usually no receipt is issued shall beapproved on the basis of an affidavit of the saidexecutor.

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 ofthe inheritance in the inventory proceeding andmade in respect of which there has been noobjection, confers on the parties exclusiveownership of the properties respectivelyallotted to them, as against other parties tothe proceeding.

280. Consequences of co-heir and moietyholder being deprived of possession.— (1) Theco-heirs and moiety holder shall be mutuallyliable to indemnify the co-heir or moiety holder,who is deprived of possession of the propertyallotted to him, by a person having better titlethereto.

(2) Such liability ceases when there isagreement to the contrary or if thedispossession takes place due to the fault ofthe person dispossessed or due to a causewhich 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 period

of 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 or whenmade with a third party who has agreed withthe person who is incompetent to acquire thathe will transmit the benefits in favour of thelatter, such person is deemed to be theintermediary.


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287. Creation of easement.— (1) Where anyimmovable property is divided by metes andbounds in the inventory proceeding and it isnecessary 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 deed withthe consent of parties after the inventory isconcluded.

(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 right tofile 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.— Usufruct maybe constituted by a registered agreement, bywill or by law in favour of one or more personssimultaneously or successively, provided theyare living at the time the right of the firstusufructuary becomes effective.

290. Extinguishment of usufruct.— (1) Unlessprovided 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, theusufruct shall last for a period of 30 years only.

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 any propertytransfers the beneficial ownership (dominiumutile) to another and the latter binds himself topay him annually certain determined periodicsum, which is known as emphyteutic fee. Uponsuch conveyance, the owner of the propertyshall be the owner of the direct domain onlyand the transferee shall be 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) Theproperty 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 them inaccordance 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 theowner of the direct domain may demand therespective emphyteutic fee of each of the


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beneficial owners according to the allotmentdone.

(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 divided withoutthe written consent of the owner of the directdomain, each of the plots shall be liable for theentire 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 Notariesand Special 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-districtsand every alteration of such limits shall benotified 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 one

District Special Notary and in each sub-districtone or more Special Notaries. The SpecialNotary shall exercise the powers conferredon him by this Acts within such sub-district orsub-districts as the State Government may byorder determine. The State Governmentmay also 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 tobe styled as the office of the District SpecialNotary and in every sub-district an office oroffices to be styled as the office of the SpecialNotary or the offices of the joint SpecialNotaries, as the case may be.

299. Absence of District Special Notary.—When any District Special Notary is absent onleave 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, whereany Special Notary is directed to act as DistrictSpecial Notary, he shall not hear appealsagainst his own orders.

300. Absence of Special Notary.— Whenany Special Notary is absent, or when hisoffice is temporarily vacant, the District SpecialNotary shall make the necessary arrangementof substitution directing any other SpecialNotary to act as such Special Notary duringthe absence, unless the State Governmentmakes appointment 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 Special Notary


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for the State of Goa, who shall have powers ofsuperintendence and control over the DistrictSpecial Notaries and the Special Notaries.

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 appointed bythe Government to draw authentic instruments.

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 intervenedin such instrument, unless it is proved thatthe document 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 bythe 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 ofinheritance;

(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 tobe done under this Act;

(m) Instrument of declaration of the optionexercised under clauses (c) and (d) ofsub-section (4) of section 1.

CHAPTER XVIII

Books, Indices and 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 Special Notary.

309. Books to be maintained by the SpecialNotary and District Special Notary.—

(1) The Special Notaries shall maintain:–

(i) a daily register of instruments drawnunder this Act;


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(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 as executor;

(xi) a register of record of acquiescencegiven by the spouses;

(xii) a register of renunciation ofinheritance, adoption, ante-nuptialagreements, revocation of wills, declarationof heirship, orders refusing to perform an actand such other acts provided under law tobe performed 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 otherinstruments;

(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.— Thenotarial 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 Notary shallpreserve the books, registers, documents andtheir 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 or bookshall 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 the SpecialNotary, immediately after it is examined andshall not be retained in court records.

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 Special


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Notary, shall be open for inspection by anyperson applying to inspect the same andsubject to the provisions of section 352 copiesof entries in such books shall be given to allpersons applying for such copies.

(2) All copies given under this section shallbe signed and sealed by the Special Notaryand shall be admissible in evidence as proof ofthe contents of the original documents. Thecertified copy shall contain an endorsementstating the number of the will or otherinstrument in the index.

314. Power of the State Special Notary andDistrict Notary to superintend and controlSpecial Notaries.— (1) Every Special Notaryshall perform the duties of his office under thesuperintendence and control of the DistrictSpecial Notary in whose District the office ofsuch Special Notary is situated.

(2) Every District Special Notary shall haveauthority to issue (whether on complaint orotherwise) any order consistent with this Act,which he considers necessary in respect ofany act or omission of any Special Notarysubordinate to him.

(3) The State Special Notary shall haveauthority to issue, whether on complaint orotherwise, any order consistent with this Actwhich he considers necessary in respect of anyact or omission of any District Special Notaryor any Special Notary subordinate to him.

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) antenuptial agreements, (g) deeds of declaration

of heirship, (h) adoption deeds and (i) suchother 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 the mentalfaculties of any party, unless one of thewitnesses be a doctor and the SpecialNotary records that such doctor has certifiedthat such party is in his full senses.

320. Refusal to perform an act.— (1) Order ofrefusal to record reasons.— When the SpecialNotary refuses in writing to perform an act,which he is empowered to do, he shall makean order of refusal expeditiously and recordhis reasons for such order in his Book No. IXand endorse the words “refused to draw” onthe draft document, if any, is presented, and,on an application made by any person who hasan interest in causing it to be drawn, shall,without payment and unnecessary delay, givehim a copy of the reasons so recorded.


986

(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 re-consideration.—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 Notarydirect the special notary to draw the documentand the party appears before the SpecialNotary within 30 days from the date of themaking of such order, the Special Notary shallcomply with it.

(2) Every District Special Notary rejectingthe appeal shall make an order and record hisreasons for such order in his Register of orderspassed in appeal; and, on an application madeby any person who has an interest in causingit to be drawn, shall, without payment andunnecessary delay, give him a copy of thereasons so recorded.

(3) No appeal shall lie from an order of theDistrict Special Notary.

322. Suit in case of party being aggrieved byorder 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 situatefor 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 andhis staff;

(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 meansof any official document such as votersidentity card, PAN card, multi-purpose NationalIdentity card.

324. Requisites of authentic documents.— (1)The requisites of the authentic documents areas 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;

(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 be


987

counter-signed 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 in thelanguage known to the party. The translatorshall intervene in the instrument and shallsolemnly declare that the translation is trueand correct.

The instrument shall be recordedcontinuously, without any blank space orblank line.

(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 all wordsshall be recorded in extenso and figures inwords.

(2) Drawing of the instrument and deed shallbe in the presence of two witnesses who shallput their usual signatures at the end of suchdeed or instrument.

(3) The identity of parties in all instrumentsand deeds including the wills, may be doneby any official identity card such 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, shallbe affixed and the finger used shall be specifiedby the Special Notary. In case affixation ofimpression of any finger is not possible or the


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party 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 deaf anddumb 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 a personappointed by the party. This fact shall berecorded in the deed.

(4) The person appointed by the party shallintervene in the deed and solemnly declarethat the interpretation is true and correct.

CHAPTER XXI

Public open will

327. Identification of the testator and hiscondition.— The Special Notary as well as thewitnesses should know the testator or be ableto certify his identity and further, the SpecialNotary shall satisfy himself that the testator isin his perfect sense and free from coercion.

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 to

the 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 in whichthe 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 worthy witnesses,who shall identity the testator, and certify thatthe testator is in his perfect senses and freefrom 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 andthe bottom and one cm on the right side of thepaper. The print shall be continuous without


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break between words and numbers shall bewritten 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), shallbe maintained in a provisional file. In the samefile, all the wills so presented shall be kept asper the serial order of its presentation andtheir 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 it bearsin the file maintained for preserving open wills.Every page shall be signed by the testator, andthe two witnesses to the will just above thefirst line and below the last line in the presenceof the Special Notary. The Special Notary shallthen make a record thereof immediately nextto the signatures on the last page of the willand it shall continue without interruption onthe same page and on the subsequent pages.

(3) The record to be made by the SpecialNotary in the presence of the testator and thewitnesses shall the 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 witnessesin his presence;

(c) state the number of pages the willcontains;

(d) make mention to any blot, inter-lineations, correction or marginal note inthe 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 in thepresence of the witnesses the will presentedby the testator and the record made, and afterspecifying the place, date month and year therecord shall be signed by the testator, thewitnesses and the Special Notary.

(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 that thephotograph is of the testator immediately afterall the formalities are completed, the SpecialNotary shall issue a certified photostat copy ofthe will with the record made by him, to thetestator and then shall file the will in the filemaintained for the purpose.

(6) The Special Notary shall enter theparticulars as provided in sub-section (2) aboveand 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 the printedopen will presented by the testator if the saidwill is not written in the language of the courtor in a language commonly known in the districtor is written in a language not known to theSpecial Notary. In this event, the testator mayrequest the Special Notary to draw a publicwill.

CHAPTER XXIII

Closed Will

334. Presentation of closed will and approvalby the Special Notary.— (1) The testator shall


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present 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 shall bedrawn immediately next after the signature onthe 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 bythe testator in person in the mannerrequired by 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 up onthe external side of the cover, a note givingthe name of the testator whose will is sealed.

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 was

made 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 pagesof the will and whether it has any blot,interlineations, correction or marginal note,shall invalidate the will, provided that it has infact been initialed 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 andyear, when the will was approved anddelivered.

338. Custody of the closed will and its depositwith the Special Notary.— (1) The testator maykeep the closed will with himself or hand itover to a person of his confidence or deposit itin safe custody of the Special Notary.

(2) The testator who wishes to deposit hiswill in any Special Notary’s office, shall hand itover to the Special Notary and the SpecialNotary shall make a record of deposit or causesuch record to be drawn. The record shall besigned by him and the testator, in therespective book.

(3) On receiving such cover, the SpecialNotary, if satisfied that the person presentingthe same for deposit is the testator or hisagent, shall record in the same book and onthe said cover the year, month, day and hour ofsuch presentation and receipt, and the namesof any persons who may testify to the identityof the testator or his agent, and any legibleinscription which may be on the seal of thecover.


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(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 throughany attorney, in which case, the Power ofAttorney shall 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 mentionedin the preceding section shall be written in abook, the pages whereof shall be numbered,

initialed and at the end signed by the DistrictSpecial Notary.

CHAPTER XXV

Registration of the closed willafter opening

344. Registration of will.— (1) Once the recordof the opening of the will is recorded in thebook, the Special Notary shall cause the will tobe registered by copying in extenso in anappropriate book by making a original notesigned by the same, the Special Notary, statinghow it was opened and registered and whetherany thing suspicious was noticed or not.

(2) After the will is opened, all its pagesshall be initialed by its presenter or by theinterested parties present, by witnessesand by the Special Notary.

(3) The original of the will shall, thereafter,be kept in the office of the Special Notary insafe custody in charge of the Special Notarywho shall be responsible for it.

345. Withdrawal of sealed cover depositedunder the preceding section.— If the testatorwho has deposited the sealed cover under thepreceding section wishes to withdraw it, hemay apply either personally or by dulyauthorized agent, to the Special Notary whoholds it in deposit and such Special Notary, ifsatisfied that the applicant is actually thetestator or his agent, shall deliver the coveraccordingly. The will shall be returned to thetestator by following the formalities laid downfor the deposit of the will. A record shall bemade in Book No. VII.

CHAPTER XXVI

Instrument of Declaration of Heirship

346. Declaration of heirship.— (1) After thesuccession opens, and the law does not requirethat mandatory inventory proceedings beinstituted to partition the inheritance, heirshipmay be proved by a deed of declaration ofheirship drawn by the Special Notary.


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(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 the followingdocuments:—

(a) death certificate of the deceased;

(b) will or gift deed mortis causa, whenthe succession is founded on such document;

(c) document to prove the relationship ofthe heir or heirs to the deceased;

(4) Where a party is unable to produce a birthcertificate, 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 penalaction under section 191 and 199 of the IndianPenal Code (45 of 1860).

(8) The fact that any person has been broughton record in Court proceedings other than

inventory proceedings as legal representativeof the deceased, shall not amount to adeclaration of heirship.

(9) A deed of declaration of heirship shall besufficient 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 amount fromthe deposit.

(10) The fee or duty on a deed of declarationof heirship shall be as prescribed, on eachinheritance opened, irrespective of the numberof heirs.

(11) The Special Notary recording the deedof declaration of heirship shall, at the expenseof the interested party or parties, publish within15 days, an extract of the declaration, disclosingthe name and permanent residence of thedeceased and the names of the interestedparties and other identification particulars, inthe Government Gazette. When the value ofinheritance exceeds Rs. 10 Lakhs in all, suchextract shall also be published in a newspaperin circulation in the locality where the deed isdrawn. The Special Notary shall require theinterested party or parties to advance theexpenses towards the publication of 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 be givenby the Court to the respective Special Notaryor by the Plaintiff in the suit, enclosing acertified copy of the plaint.

(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 endorsement


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that 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 of thedocuments or other material available in theoffice of the Special Notary, the nullity on theground of failure to mention them shall notsubsist;

(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, struck throughor erased without errata memo which do notamount to alteration of the essential termsof the respective instrument or its contextin substance, are deemed not written anddo not result in nullity, provided that theintention of the testator can be gatheredfrom the remaining part of the will. The sameprocedure shall be followed as regards words

inserted without being initialed,notwithstanding that they may result inalteration 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 such dispositionshall 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 such cases,of nullity shall be restricted to dispositionsmade in favour of persons referred to in section317.

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 been initialedby the parties, may be validated by thecompetent court in a suit instituted for the saidpurpose by an interested party against theother interested parties and the Special Notary,on the following terms:–

(a) when in the circumstances mentionedin clause (iii) of sub-section (1) of section 347,it is proved that respectable persons arerequired 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 instrumentis proved;

(c) When in the circumstances mentionedin clause (vii) of sub-section (1) of section 347,it is proved that the deed was written inhis hand by the Special Notary or by theJoint Special Notary in terms of section 324and 325 and a certified true copy, signed bythe Special Notary or by the Joint SpecialNotary is issued:


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Provided that:

(i) Public wills or record of approval ofclosed wills where a mention as to the formalrequirement set out in the body of this sectionis made, may be validated when in therespective suit it is proved that the aboverequirements had been complied with;

(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 to disciplinaryproceedings and the damages which he isliable to pay, may be determined in the abovementioned 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 any books,registers or documents of his office orwillfully allows them to be lost or destroyed;

(ii) when he refuses to perform hisfunctions at the right time without just cause;

(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 a courton the ground of lack of jurisdiction of theSpecial Notary;

(vi) when his act is declared void by a courton the account of incapacity of the partiesor their attorneys or representatives, and ifhe had knowledge of their incapacity at thetime the act was performed;

(vii) when his act is declared void by acourt for lack of competence of the witnessesand he had knowledge of such fact at thetime the act was done;

(viii) when his act is declared void for non--compliance with formal requirement, ongrounds other than the lack of competenceof witnesses;

(ix) when his act is declared void onaccount of coercion, and if he had knowledgeof the coercion at the time the act wasperformed or he was a party to the coercion;

(x) when his act is declared void on theground that he has intentionally induced aparty into a mistake.

(2) The Special Notary shall be liable todisciplinary proceedings for any act done inthe discharge of his duties in cases not coveredin sub-section (1), when the liability arises froma criminal proceeding.

350. Insufficiency of stamp.— No documentor instrument including a will drawn by theSpecial Notary shall be invalidated on theground that it is not duly stamped or that it isinsufficiently stamped.

351. Discretion to state the provision andaccept a draft.— (1) It is open to the SpecialNotary while drawing an act, to make mentionof the legal provision under which the act isdone if the parties plead that such mentionwould better clarify their intention

(2) It is open to the parties to submit to theSpecial Notary the proposed draft of the deedwhich they want the Notary to draw. TheNotary shall draw the act in the manner shownin the proposed draft if he is satisfied that itconveys better the intention of the parties. Thesaid draft, after being initialed by the Notary,shall be returned to the party who gave it,unless the party desires that the same may bekept on record. Whenever such draft is kepton record, it shall be initialed by all partieswho know and can initial it.

CHAPTER XXX

Certified copies

352. Who may apply.— Any person mayapply for certified copies of the wills, entries


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in 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, recordof open printed wills shall be issued only onthe application of the testator himself or by hisattorney with special powers. After the deathof the testator, such certified copies shall beissued to any person upon production of thedeath 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.— TheSpecial Notary shall issue the certified copies,within a period of ten days, on payment of theprescribed fees. When an urgent certified copyis applied for, it shall be issued upon paymentof such extra fees as may be prescribed, withintwo days.

355. When a reference is made to otherdocuments in the main instrument.— When inany instruments drawn up by the SpecialNotary, a mention is made to a power ofattorney or to a deed delegating powers or toany other document which is on record, certifiedcopy of such document shall be issued alongwith the certified copy of the main instrumentdrawn up by the Special Notary.

356. When a reference is made to a drawingor plan in the main instrument.— A certified copyof a deed or instrument, in which a referenceis made to a drawing or a plan which is onrecord, shall be accompanied by a certifiedcopy of such drawing or plan. For this purpose,the Special Notary shall appoint an expert toprepare a copy thereof and the Special Notaryshall issue the certified copy only aftercomparing it with the original. The fees payable

to the expert shall be borne by the partyapplying for the certified copy, and such feesshall be fixed by the Special Notary.

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 Government.—The State Government shall prepare a table offees payable for the instruments drawn by theSpecial Notary.

360. Publication of fees.— A table of fees sopayable shall be published in the OfficialGazette and a copy thereof shall be exposedto public view in every office of the SpecialNotaries.

CHAPTER XXXII

Penalties

361. Penalty for incorrectly recording,endorsing, copying, and translating documentswith intent to injure.— (1) Every Special Notaryappointed under this Act and every personemployed in his office for the purposes of thisAct, who being charged with drawing,endorsing, copying, or translating a document,does so in a manner which he knows or believesto be incorrect, intending thereby to cause orknowing it to be likely that he may therebycause injury as defined in the Indian Penal Code


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(45 of 1860), to any person, shall be punishablewith imprisonment for a term which may extendto seven years and shall also be liable to fine.

(2) Every Special Notary appointed underthis Act and every person employed in his officefor the purposes of this Act, who has access tothe documents, books and registers maintainedin his office, remove, mutilate, destroys or makeany alteration thereto intending thereby tocause or knowing it to be likely that he maythereby cause injury as defined in the IndianPenal Code (45 of 1860), to any person shall bepunishable with imprisonment for a term whichmay extend to seven years and shall also beliable to fine.

362. Penalties for making false statements,delivering false copies or translations, falsepersonation and abetment.— Whoever,–

(a) intentionally makes any falsestatement, whether on oath, or not, whetherit has 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 punishable underthis Act,

shall be punishable with imprisonment for aterm which may extend to seven years and shallalso liable to fine.

363. Thing bona fide 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 or refusedin his official capacity.

364. Nothing so done is invalidated by defectin appointment or procedure of appointment ofan officer acting under this Act.— Nothing donein good faith pursuant to this Act by an officer

under this Act shall be deemed invalid merelyby reason of any defect in his appointment orin the procedure of his appointment.

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), shallex-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, wherehe is required to work beyond the normal officehours, be paid by the person requiring suchwork, such over time fees as may be fixed bythe Government, by notification. The SpecialNotary shall also be entitled to adequate policeprotection for his personal security and thesecurity of the Notarial books.

PART IV

INVENTORY PROCEEDING

CHAPTER XXXIV

Types of Inventory Proceedings

366. Mandatory Inventory. — When a persondies leaving a surviving spouse or an heir, anyone of whom is an interdict, absent person,unknown, or minor, inheritance shall bepartitioned, by instituting inventoryproceeding only, which shall be calledmandatory Inventory proceeding.


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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 separation orannulment of marriage.— (1) After the divorceor separation of persons or annulment ofmarriage is decreed, the spouses may partitiontheir 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 seeks separationof common assets or where either spouse isdeclared as insolvent or bankrupt, theprocedure specified in sub-section (1) shallbe followed with the following modification:-

(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 modifies thevalue of the assets chosen by the aggrievedspouse, he/she may within 10 days from the

conclusion of the appraisal, withdraw fromthe choice exercised. Thereupon, themoieties shall be allotted by draw of lots.

369. Inventory where a party dies afterallotment in Inventory proceeding which werefinally disposed of.— Where, after the partitionis effected in any inventory, any interestedparty dies leaving no assets other than thosethat have been allotted in the inventory, suchinheritance shall be partitioned in the sameinventory proceeding that was finallydisposed. The person to whom the office ofhead of family belongs shall take oath of officeand the procedure set out hereafter shall beapplicable.

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 ofthe 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 of changeof value of currency, such change shall be takeninto consideration. In addition to the valuationalready made, due description of assetspreviously made shall be retained. If separateinventory is filed, the description shall bereproduced in the separate inventory.

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 the


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parties 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 pre deceased spouse, such assets shallbe described and partitioned in the inventoryof the surviving spouse.

372. Inventory in the event of dissolution ofjoint family.— (1) When a joint family asgoverned by Decree dated 16-12-1880 isdissolved, the estate may be partitioned byinstituting inventory proceeding and theprocedure hereafter provided shall beapplicable.

(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 to partitionsamongst the members of the family.

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 the successionshall 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 succession

opens 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 value ofthe properties.

(iii) If the immovable properties of thedeceased who was governed by this Actare situated partly in Goa and partlyoutside Goa, 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 subjectto 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) It shallbe lawful to consolidate inventories in orderto partition assets comprised in differentinheritances:—

(a) when the persons among whom theproperties are to be partitioned are the same;

(b) when the inheritances left by both thespouses are to be partitioned.

(2) Where the partition is dependent uponone or more other partitions:—


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(i) If the dependence is total because inone of the partitions there are no assets otherthan those, which are to be allotted to thedeceased in the other, the application forconsolidation 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 parties andthe smooth course of the proceeding;

(3) Lack of pecuniary or territorial jurisdictionto entertain one of the inventories shall not bea bar to the grant of an application forconsolidation even if, in one of the inventories,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 underdisability 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 executor ina 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 the inheritance,identification of the person who will dischargethe functions of the head of the family and

whether there are heirs subject to orphan’sjurisdiction.

376. Order of appointment of head of thefamily.— (1) When the petition is duly filed, thecourt may hold an inquiry to decide who shallhold the office of head of the family and shallupon considering the petition and documentsaccompanying it, appoint a person as the headof family and notify him to take oath that heshall discharge his duties diligently andfaithfully and make a declaration stating:—

(i) the name and status of the estateleaver, date on which and the place wherehe 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 kinship ofthe 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 was marriedand, whether there was an ante-nuptialagreement and if so, he shall produce acertified 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 be collatedand give the names of the conferees. Thehead of the family shall also give the namesand addresses of the legatees and of thecreditors;

(vii) what are the assets of inheritance.

(2) At the time of the head of the family makesthe declaration, he shall produce the certifiedcopy of the renunciation deed if any, and suchother document as may be relevant to the case.

(3) Where the head of the family makes areference to any document in his declaration,he shall, whenever possible, give particulars


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in 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 person appointedas head of the family that the office belongs toanother person, the court shall, upon inquiry, ifnecessary, appoint such other person as thehead of the family.

378. Evidentiary value of the declaration ofthe head of the family.— (1) The declarations ofthe head of the family, given both initially andsubsequently, are presumed to be true until thecontrary is proved, unless they are made in hisown interest or they are in respect of factswhich are required by the law to be proved ina particular manner or which require theagreement of all or of the majority of the parties.

(2) The function of the head of the family shallnot 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 and profitsof the assets in his possession and shall meetthe normal liabilities of the inheritance andshall every year render accounts to the court,

in the miscellaneous proceeding, in case theusufruct of the assets does not belong to 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 section 252shall be included in the expenses.

(b) The head of the family shall not alienateany of the assets of the inheritance exceptfruits and other perishable articles. However,the head of the family may create a lease ofa temporary nature which shall come to anend upon 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 theyare 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 tothe court 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 tothe properties or to recovery of debts, heshall not be so sued without impleading allthe 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 of thefamily.— Assets are deemed to be concealedwhen the head of the family fraudulently does


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not include an asset of the inheritance in thelist of assets or denies that such asset is partof the inheritance and a complaint is made tothe 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 theother heirs.

(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 assetsbased on false documents.— Where the head ofthe family has included in the list of assets andliabilities, credits, rights or charges based onsham, false or forged documents, he shall beliable for the damage caused.

383. Duration of office of head of the family.—The head of the family shall continue to managethe estate till the order of homologationbecomes final.

384. Removal of the head of the family.— (1)The head of family may be removed when he,—

(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 of

the head of family. The court shall then hold asummary inquiry with a short notice to the headof the family wherein not more than 3 witnessesshall be examined by either side.

(3) When the head of family is removed,another shall be appointed in accordance withthis Act and the provisions of section 376 shallbe 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 successful biddersmay apply that the respective assets bedelivered to them. The successful bidder shallbe considered to be the head of the family inrespect of the assets, which are delivered tohim.

(6) The above provisions shall be applicableto the person who has the duty to collate, andfails to discharge his duties of special head ofthe 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.


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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) Where thecourt is satisfied upon perusal of the declarationof the head of the family that there is no groundfor the inventory to proceed, the court shalldrop the proceedings after hearing the head ofthe 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 summon ororiginal process be served on the moiety holderof 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 thefamily, 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 the

family 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, suchproceeding shall be dropped.

(7) Where the head of the family declares, orrecord 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,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 registered


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address within the jurisdiction of the court,which is different from the address given bythe head of the family, the latter shall be deemedto be registered address of the party. Where aparty files a registered address, he shall statethe 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 natural guardianrepresentative has an adverse interest.

(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 been earlierappointed 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 aprovision 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, uponhis 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 tosuch party, 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. In

other 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, curator ad-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, or relativeor the guardian up to the sixth degree, mayapply on grounds set out in the application thatthe guardian be discharged or removed fromoffice.

(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 threemembers, 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 substitution ofanother 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 disability shallbe represented by a guardian ad litemappointed by the court.


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393. Death of moiety holder or heir during thependency of the proceeding.— (1) Inventoryproceeding shall not abate by reason of deathof 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 served withsummon in the inventory proceeding dies, hisheirs may make an application to getthemselves impleaded by following theprocedure prescribed in section 395.

394. Challenge to the maintainability of theproceeding and other objections.— (1) Any ofthe parties may on the date of hearing butwithin 30 days from the receipt of the summon,–

(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 has beenserved with summon, unless they have beenserved 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 inventoryproceeding, 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 along with 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 to strangersinstitutes inventory proceeding to enablethe parties entitled to pre-empt to exercisetheir right and shall state in the applicationinitiating the proceeding the price andconditions of the proposed sale. Upon suchinventory proceeding being initiated, the courtshall proceed to appoint the head of the family,and where necessary, appoint guardians,


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curators or the family council, and thereupon,convene a conference of the interested partiessolely for the purpose of exercising the right ofpre-emption. The procedure laid down insection 398 shall mutatis 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 heirmay apply to the court that a conference of allinterested parties be convened to resolvewhether all the co-heirs jointly wish to exercisetheir right of pre-emption in favour of theinheritance. Where such right is not exercised,and upon moiety holder also failing to exercisesuch right, the heirs may exercise theirindividual 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 paymentor deposit the price within 15 days time, heshall forfeit his right. Such failure shall bebrought to the notice of next largestshareholder, who has exercised the right ofpre-emption, and he shall have to make thepayment or deposit the price, within 15 daysfrom the date of receipt of the notice, and soon.

(c) Where the shares are equal, all thosewho applied for pre emption, shall besummoned to appear in court for licitation.Minutes of the licitation shall be drawn andthe highest bid of each bidder shall berecorded. The highest bidder shall make thepayment within 15 days from the date of thelicitation, failing which he shall forfeit hisright. Such failure shall be brought to thenotice of the next highest bidder who shallhave to make the payment or deposit theprice within 15 days from the date of receiptof 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 precious metalsand such other objects and thereafter all theremaining movables and livestock, theimmovables,- including mortgages, easements,leases and other encumbrances thereon andlastly 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 initialedand 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 source oftitle 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.


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(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 and otherobjections.— (1) Within 30 days from the datethe head of the family submits the list ofassets, 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 thedonee disputes 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 to raisesuch objection shall not deprive the party fromseeking additional partition as provided insection 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 detailedinquiry, the parties shall be directed to file asuit, if they so desire, in respect of the disputedasset or liability and the inventory shall proceedin the respect of the remaining assets andliabilities.

(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 the dutyto 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 security


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corresponding 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, such co-heirsshall be called upon to list them within suchtime limit as may be fixed by the court.Thereafter, the provisions of section 399 shallbe followed.

402. Deletion of assets listed in the preliminarylist.— Where any co-heir or a third party claimsownership of any of the assets listed in theinventory and applies for their removal fromthe list of assets of the inheritance, the disputeshall be decided, after hearing the head of thefamily, or the person who has listed the assets,and after recording of evidence.

403. Disputes relating to concealment ofassets.— (1) The person who conceals the assetis deemed to be merely in custody of thoseassets and the court may order such person tohand over these assets to the head of the family.

(2) The issue whether there is concealmentof properties shall be decided in the inventorywhen the dispute can be decided on perusal ofthe 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 by

the 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 the co-heirs may, if there are funds available in theinheritance, demands that the said liabilitiesbe 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 the encumbrancesshall be deducted and the heir, to whom theimmovable property is allotted, shall pay thesaid 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 partthereof 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 which thepartition is to be carried out is passed, unlessthe respective creditor had been summoned totake 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 liable


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to pay costs, whatever be the outcome of thesuit.

408. Debtor’s denial.— (1) Where any debtdue to the inheritance listed by the head of thefamily is denied by the alleged debtor, the courtshall, upon hearing the head of the family andthe debtor, decide if the debt shall be retainedin the list or shall be removed from the 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 thevaluer, the court shall fix his fees and a date forsubmission 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.— Wherethere are assets, the value of which can bedetermined by a mere arithmetical operation,the file shall be referred to an Officer of thecourt for such purpose immediately after thelists have been submitted and such officer shall

determine the value within 15 days, unless thetime limit is extended by the court.

CHAPTER XL

Final list, conference of the parties andpayment of debts

411. Final list.— (1) After the valuation isfinalized, the court shall fix a date for submissionof final list of assets and liabilities by the officerof the court in charge of inventory 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, among otherassets, of divisible immovable properties otherthan residential houses, any party may, afterthe final list of assets is made, apply that thesaid immovable properties be divided by metesand bounds in accordance with the shares andbe allotted to the respective interested parties.Two or more interested parties may state thatthey agree to take a joint sub divided plot.Where divided plots are equal in area, lots shallbe drawn for the purposes of allotment.

(2) Where an application for division by metesand bounds is made, the court shall appoint acommissioner who shall submit a report statingwhether the immovable properties are divisiblein accordance with the rules and regulationsrelating to sub division of lands in force. Wherethe properties are divisible, he shall sub dividethem into plots. Where the commissionersubmits a report that any immovable propertyis not divisible, such immovable property shallbe put to licitation.

413. Objection to overvaluation, conference,application for licitation.— After the final list isprepared, any of the heirs or moiety holders ofthe deceased may within 15 days—

(a) raise the issue that assets have beenovervalued;


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(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 council shallbe included in the minutes of the conference.

415. Conference of the interested parties.— (1)The conference of the interested parties shallbe convened by the court upon its own motionto resolve on the approval of the debts andthe 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 the conferencewhen such notice ought to have been given tohim.

416. Debts payable by the inheritance andmode of payment.— (1) Debts payable by the

inheritance, 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 the partition,direct their payment if the amounts have notbeen paid before such order.

(2) When the law requires that the debtshould be proved by documentary evidence ofa certain probative value, the family council orthe 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 creditorproduces sufficient documentary evidence forthe said purpose, unless the document ischallenged as being forged or evidence of equalor of higher probative value is produced whichdisproves it or where questions, which requirea detailed inquiry, have been raised.

418. Disagreement on the approval of debts.—(1) Where there is disagreement on theapproval of debts, listed or claimed, amongstthe interested parties who are of major in ageor between them and the family council orparents of the minors, the debt is deemed tohave been recognized to the extent of the shareof 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 and areapproved by all the interested parties, shallbe paid immediately in case the creditordemands their payment. Where the inheritancedoes not have sufficient funds, the court shallorder that the assets be sold for the saidpurpose by public auction. The court shall


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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 all theinterested 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 placewhere they may be transferred without causingdamage or heavy expenses.

(6) Where an irregularity is committed duringthe auction or it is discovered that assets havebeen fraudulently described and suchfraudulent description has caused grave injuryto any party, objections may be filed by suchparty and the court shall decide on theobjections, after recording such evidence as isdeemed necessary. If the court is satisfied thatirregularities materially vitiating the auctionhave been committed, the auction shall be setaside.

(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 section 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 of theinterested parties only.— Where a debt has

fallen 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 approve 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 the creditorsdo not demand the payment of the debts whichhave fallen due and are approved, the partiesmay resolve on the mode of payment, either bysetting apart money or properties for the saidpurpose entrusting the payment to one or someof them, or deciding that the debt shall beshared by them in proportion to the assetsallotted to them.

(2) The parties may also resolve on the modeof payment of the debts which have beenapproved but have not yet fallen due.

(3) The resolution, which entrusts thepayment to one or some of the parties, bindsthe creditors but where the creditors do notget fully paid with the properties handed overto the party or parties entrusted with thepayment, the creditors may attach theproperties adjudicated to the other interestedparties.

(4) Where the debts have been approved bysome of the parties only acting for themselves,by the family council or by the parents of theminors, only they can resolve on the mode ofpayment.

422. When do legatees decide on the mode ofpayment of debts.— The legatees may resolveon the liabilities and the mode of their payment,only when the entire inheritance is distributedby way of legacies or when the approval ofdebts will result in reducing the legacies.

423. Insolvency.— Where the debts approvedby the parties or recognized by the Court


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exceed the mass of the inheritance, theprocedure 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) Where anyof the parties contends that the value given toany of the assets is excessive, he shall statewhich according to him is its fair value and theinterested parties shall in the conferenceresolve as whether the value shall bemaintained or decreased. In the latter case, thevalue shall be fixed in such conference.

(2) But, where a party declares that heaccepts the thing for the value given to it, thevalue shall not be decreased. Such a declarationshall amount to licitation. Where more than oneparty accepts the valuation, licitation shall beheld amongs them and the thing shall beadjudicated to the highest bidder. In case theparties are unable to fix the value, the valuegiven shall subsist.

(3) The objection regarding overvaluationmay be raised orally during the conference.

CHAPTER XLI

Licitation

426. Licitation of asset which is not susceptibleto division without detriment.— (1) Where anyparty to the proceeding applies that an asset,which by its nature is not susceptible to divisionwithout detriment, be put to bid but, anyco-heir having a major share in it other than byreason of marriage, succession, gift or bequestby the person who leaves the inheritance andsuch co-heir objects to the licitation, then thelicitation shall not be held. In this eventuality,the party may apply for a second valuation.

(2) Second appraisal may also be made whenthe said co-heir applies for a second valuationon the ground that the thing in which he hasthe major share, has been overvalued.

(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 after hearingthe valuer.

(4) Where the thing is not subject tovaluation the question of indivisibility shall, inthe absence of agreement, be decided by thecourt after the expert appointed by the courtinspects the properties and gives his report.

(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,the application shall become ineffective whereit is found that the donee is not bound to returnany property.

(3) Inofficious gifts: Where the court finds thatthe gift is inofficious, the following provisionsshall be followed:–

(a) Where the application is in respect ofan asset which is susceptible to division,


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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 beenapplied 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 conditions aresatisfied, the donee shall be notified beforethe licitation to raise his objection within 10days.

(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 by anofficer appointed for the purpose by the court.However, such officer shall not declare thehighest bidder without the leave of the court.

(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.

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 the precedingsection, the donee or the legatee should alsobe allowed to make a bid. Such of the propertiesof the inheritance which are not necessarily tobe allotted to any particular party, only maybe 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 which cannotbe separated without inconvenience. Differentparties, may, by agreement, offer a bid overthe same item or lot so that may be allotted tothem in common. Such a bid shall be deemedto be one indivisible bid and the parties shallbe jointly and severally liable to pay or depositthe entire bid amount.

(4) Once the parties have struck down anasset in the licitation, they cannot resilefrom it.


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(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 homologation of the Partitiondecision 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 inhertiance.

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 courtmay 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 is inofficious,the legatee may, within 30 days of the noticeof first valuation irrespective of the applicationreferred to in section 428, apply for secondvaluation either of the bequeathed propertiesor of any other properties which have not beenvalued 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 reduced onthe 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 the legacyis inofficious, the legatee shall return the excessin specie. Such excess may be subject tolicitation in which the legatee shall not beallowed to participate.

(2) Where the bequeathed thing by its natureor without detriment, cannot be divided, thefollowing shall be observed:—

(i) The return shall be made in cash, whenthe inofficious part is smaller than the otherpart, and in such a case any party may applyfor the second valuation of the bequeathedthing,

(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.

The provisions of clause (c) of sub-section(3) of section 427 shall be applicable to thelegatee also.

434. Procedure for second valuation.— (1) Thesecond valuation shall be done by three valuersappointed by the consent of the parties. Inthe absence of such agreement, each side shallappoint one valuer and the Court shall appointthird valuer. The co-heir, donee, or legatee,referred to in sections 426, 427 and 428 shallform one side and the other parties, competentor under disability, shall form the other side.The minors and other persons under disabilityshall be represented at the time of the valuationby their parents, or by the guardians andcurators.

(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) Uponcompletion of valuation of assets and licitation,if any, 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.


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(2) The court may, in exceptional cases, directthe parties to lead such evidence as may benecessary 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 course ofthe 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 order decidingon the mode of partition. However, such ordermay be challenged in the appeal, if any,preferred against the final order confirming thepartition.

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 gif ted assets areimmovable, the said co-heirs shall be entitledto be identified in money and, if there are nofund in the inheritance, as many assets asmay be necessary to secure the sum 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 value shallbe distributed proportionately amongst theparties. Debts due by the inheritance whichhave been approved by all the parties, shallbe allotted proportionately, unless a differentmode of payment is agreed upon.

CHAPTER XLIII

Chart of partition

437. Chart of partition.— (1) After the courtpasses the order on the scheme of the partition,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 each kindof 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 in


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figures 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, bequeathed orstruck down in the licitation exceed the shareof the respective party or the disposableportion of the estate leaver, he shall prepare apreliminary chart indicating exactly what is theamount 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 share ofthe 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 court deemsfit;

(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 the partitionand the creditors shall have a lien on theproperties allotted to the debtor. If thedemand is made, the successful bidder shallbe notified to deposit within 15 days theamount due and, if he fails to pay or deposit,the licitation shall stand cancelled and thecourt shall fix a fresh date for licitation. Theparty who has defaulted in paying oweltymoney shall not be allowed to participate inthe new licitation.

(3) When two or more parties have made ajoint bid for a property, they shall be jointlyand severally liable for the entire oweltyamount 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 the defaultingparties shall be allowed to take part in the newlicitation.

439. Rectification.— (1) The parties may, ifnecessary, within 10 days after the preliminarychart is drawn, apply for rectification of thepartition or may object that the lots are notequal or that the order directing the partitionhas not been complied with. Such objectionshall be decided within the next 10 days. Theconference of the parties may be convened ifthe objection is as regards the inequalities ofthe 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, ifrequired. Each lot shall be identified by analphabetical letter, which shall be written on


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pieces 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 shall berecorded in the file. After the draw of lots isover, the parties are free to exchange betweenthemselves the lots, which have fallen to them.However, to exchange the lots fallen to thepersons under disability, the court’s permissionhas to be obtained. In the case of a prodigal,so declared by the court, the exchange shallnot be permitted, unless the prodigal consentsthereto.

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 twoportions 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, afterthe determining the share of the person whois represented, a third chart shall be drawnto partition the shares amongst therepresentatives.

(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 of equalportions.

(4) Where it is not possible to draw thesecond chart and have a sortition in respect ofthe second chart at the time sortition of lots ofthe 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 the

lots 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 accordance withthe chart of partition and the draw of lots within10 days, after evidence of payment of duty isproduced. The order confirming the partitionshall have the force of the decree andaccordingly 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;

(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 ofthe assets 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 liablefor the payment of costs in the sameproportion.


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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,without the order of the Court. Security shallalso be obtained in cases where a paternitysuit, suit for annulment of a will, or any othersuit the decision of which is likely to affect thepartition is pending.

445. Fresh partition.— When, as a result of adecision in a appeal or a suit, it is necessary tomake 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 shallbe 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 of assetsor in the classification of the assets or any othererror, which vitiates the will of the 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 of

fact 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 non joinderof any of the co-heirs and if it is found thatthe other parties acted fraudulently ormalafide, whether the malicious conductrelates to the preterition or to the partition.

(B) Application for review:

(2) Rescission of a judicial partition maybe obtained by filing a review applicationin the same court in the followingcircumstances:—

(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 the partyhas 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;


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(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 beaccompanied by the respective certifiedcopy.

449. Settlement of share of the heir left out inthe 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 thereis a difference in value shall be valued againand the parties may apply for a secondvaluation and, thereafter, the amount towhich such heir is entitled, shall be fixed bythe court.

(3) A fresh chart of partition shall be madeso that the changes resulting from the paymentsnecessary to make up the share of the heir whowas left out, are known. No sooner the share

is settled, such heir may apply that the debtorsbe notified to effect the payment, failing whichthey will be bound to make good his share byway of the assets, without prejudice, however,to the alienations already made. If the demandis not made, and the amount due is notdeposited by the respective parties, the moneydue shall earn interest @ 6% p.a. from the dateof the order.

450. Finality of the decision.— (1) Questionsdecided in the inventory proceeding, other thanthe questions decided by order made undersection 435, shall be considered as havingattained finality, as against the head of thefamily and the persons summoned as heirs, andso also as against the parties who were givenan opportunity to be heard before the decision,unless the right to file a suit is expresslyreserved by the court.

(2) Where the questions involved arequestions of law, or questions of fact whichcan be decided on the basis of documentsproduced or ordered to be produced, thecourt shall 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 uponthe value of the assets and such appealshall be deemed to be an appeal undersection 96 of the 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 is madeand appeal shall be deemed to be an appealunder section 104 of the Code of CivilProcedure, 1908 (5 of 1908).


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CHAPTER XLVII

Preventive measures

452. Appointment of Receiver.— (1) After thefiling 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, thecourt may, 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 thisclause shall form part of the list of assets inthe 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 family appointedin 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 apply fora temporary injunction or such other order asmay be just and proper to avoid such injury ordamage. The court may pass an interim exparte order, when it is satisfied that thedelay will defeat the very object of the reliefsought.

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 thefamily to submit a fresh cause title in inventoryproceeding setting out the names of the estateleaver, the petitioner, head of the family, andalso the names of all the impleaded interestedparties.

(3) It shall be the duty of the head of thefamily to submit to the court an amendedcause title whenever a party is added ordeleted.

(4) The causes title in the inventoryproceeding shall be in the form as specifiedbelow subject to such modifications as may berequired.

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 duty ofone percent of the net value of the assets asshown in the chart of partition.

(2) The interested parties shall be liableto share the duty payable in proportion totheir share in the inheritance.

(3) Where any of the interested partiesdoes not pay his share of the duty payable, anyother interested party may pay such share ofduty 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 assets


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allotted to him and he shall not be entitled tothe possession of those assets.

456. Fixation of the amount of costs.— (1) Thecosts of inventory proceeding shall be at thediscretion 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 ofthe assets. With regard to movables, thedelivery of possession shall be made by thecourt by handing over such assets to suchparty.

(3) Where monies are payable, the court shallorder the party to liable to pay, to deposit theamount due in the court within a reasonableperiod failing which the court shall proceed toattach the assets of the defaulting party andsell them in the public auction. The amountrealized by such auction shall be paid to theparty entitled to it. The balance, if any, shallbe 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 Civil

Procedure, 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 any penalty,forfeiture or punishment incurred under anylaw so repealed shall be deemed to havebeen done, suffered, acquired, accrued orincurred, as the case may be, under thecorresponding provisions of this Act;

(b) any fee, duty, charges, fine, etc.payable under any law so repealed or anybooks, forms, etc. in use of under any law sorepealed shall, to the extent permissible andexpedient, continue to be payable or used,as the case may be, till new fees, duties,charges, fines, books, forms, etc. areprescribed or fixed, as the case may be, underthe 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.

Secretariat, SUDHIR MAHAJAN,Porvorim-Goa. Secretary to theDated: 22-09-2016. Government of Goa,

Law Department (Legal Affairs).

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