Allowed

Madhavi Dattatrai Thaly., v. the Secretary (Law) and 3 Ors.

Bombay HC5 Aug 2019WP/597/2019

Case brief

AI extract

What is this about?

In this writ petition, the petitioner sought a direction to the State Government to provide the requisite register for opening closed wills to the Special Notary. Relying on Section 308 of the Goa Succession Act, the Court held the State liable to supply the books and directed furnishing the specific register within two months.

What did the court decide?

Directed the State Government to provide the register for opening of closed wills to the Special Notary within two months.

Madhavi Dattatrai Thaly., Vs the Secretary (Law)… — Succession and Inheritance | Bombay HC (2019)

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 Santosh

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IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.597 OF 2019

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Mrs. Madhavi Dattatrai Thaly,
wife of Dattatrai Thaly,
aged 67 years,
residing near Syndicate Bank,
Caranzalem, Goa..... Petitioner

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 V/s.

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1. The Secretary (Law), Secretariat, Alto-Porvorim,

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 Bardez – Goa.

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2. The Chief Secretary, Secretariat, Alto Porvorim, Bardez – Goa.

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3. State Registrar-cum-Head of Notary Services Registration Department, 7th Floor, Shram Shakti Bhavan,

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 Patto, Panaji, Goa.

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4. The Office of Sub-Registrar cum Civil Registrar and the Special Notary (Ex-Officio), Tiswadi, 2nd Floor, Spaces Building,

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 Dr. Alvaro Costa Road,
 Patto Centre, Panaji,
 Goa – 403 001.

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.... Respondents

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Ms. Tanvi Kamat Ghanekar, Advocate for the Petitioner.

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Mr. D. Pangam, Advocate General with Mr. Shivadatta P. Munj,
Additional Government Advocate for the Respondents.

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Coram : M.S. Sonak &

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Nutan D. Sardessai, JJ.

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 Date : 5th August, 2019.

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ORAL JUDGMENT :(Per M.S. SONAK, J.)

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 Heard Ms. Tanvi Kamat Ghanekar, the learned Counsel
for the Petitioner and Mr. D. J. Pangam, the learned Advocate
General, who appears along with Mr. Shivadatta Munj, Additional
Govt. Advocate, for the Respondents.

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2. Rule. Rule is made returnable forthwith with the consent
of and at the request of the learned Counsel for the parties.

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3.The Petitioner seeks a writ of mandamus to the
Respondent-State Government to provide State Registrar-cum-Head
of Notary Services (Respondent No.3) and the Office of Sub-
Registrar cum Civil Registrar and Special Notary (Ex-Officio),
Tiswadi (Respondent No.4) the requisite book for recording of the
opening of the closed wills, as is required under the Goa Succession,
Special Notaries and Inventory Proceeding Act, 2012, (said Act).

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4.The Petitioner has pleaded that her closed relatives Shrihari
Janardhan Thaly and Smt. Madhuri S. Thaly had executed two closed
wills, along with a Deed of Consent, all dated 17th April, 2006 before

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the Notario Ex-Officio/Sub-Registrar of Ilhas, Panaji, who, in terms
of the law as then applicable, had placed the same into two sealed
envelopes. The said Notario, after recording the act of approval in
his book, as contemplated by Article 1922 of the prevailing
Portuguese Civil Code, had handed over the two sealed envelopes to
the said parties. The Petitioner has pleaded that she is in fact the
sister-in-law of the said two parties, who had executed the two closed
wills.

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5.It is the case of the Petitioner that Madhuri Thaly expired
on 26/09/2008 and Shrihari Thaly expired on 16/03/2019, leaving
behind no issue. Copies of death certificates have been placed on
record as Exhibit 'A' collectively.

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6.The Petitioner, thereafter, under cover of application dated
28/03/2019, presented the closed wills to the Sub-Registrar-cum-
Civil Registrar and the Special Notary (Ex-Officio), Tiswadi
(Respondent No.4) to commence the process of opening of the closed
wills as provided under Section 341, read with Section 339 of the said
Act.

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7.At this stage, the the Special Notary (Ex-Officio), Tiswadi
(Respondent No.4) informed the Petitioner that the process of
opening of the closed wills cannot proceed, since the Special Notary
(Ex-Officio), has not yet been provided the requisite books by the

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State Government for recording opening of closed wills. The
Petitioner was told to make inquiries after two weeks.

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8.The Petitioner has pleaded that the Petitioner made
inquiries after two weeks and such inquiries were repeated on several
occasions. However, till date the Special Notary (Ex-Officio), has
not been provided with the requisite books and consequently,
expressed his helplessness to record the opening of the two closed
wills. Therefore, the Petitioner seeks a mandamus to the State
Government to provide the Special Notary (Ex-Officio) with the
requisite books as contemplated under the said Act, so that
Respondent No.4 is in a position to record the opening of the closed
wills.

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9.According to us, case made out by the Petitioner is well-
founded and the relief applied for by the Petitioner deserves to be
granted. Such a relief, if granted, will facilitate not only opening of
the closed wills in which the Petitioner is personally interested, but
will also facilitate the opening of closed wills in several similar cases
which, we are sure are simply pending for want of requite books to
record opening of the closed wills.

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10.In the aforesaid regard, reference is firstly necessary to the
provisions of Section 308 of the said Act, which places obligation on

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the State to provide books to the Special Notary as may be necessary
for the purposes of the said Act. Then Section 309 of the said Act
refers to the books to be maintained by the Special Notary and
District Special Notary. One of the registers to be maintained by the
Special Notary in terms of Section 309 of the said Act, is a register of
opening of closed will. This finds reference in clause (vii) of Section
309(1) of the said Act.

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11.Chapter XXIV of the said Act deals with the provisions
relating to opening of the closed will. Section 341 provides for
formalities to open a closed will; Section 342 provides for the
proceedings on death of the depositor and Section 343 provides for
the book of record. In the absence of the requisite book i.e. a register
of opening of closed will, the Special Notary (Ex-Officio) is
expressing helplessness to proceed with the formalities of opening of
the closed wills now presented by the Petitioner. The Petitioner has
pleaded that the Petitioner has been called to the Office of the Special
Notary (Ex-Officio) on a number of occasions only to make
inquiries. Every time, the Petitioner is informed that the provisions
of Chapter XXIV of the said Act cannot be given effect to in the
absence of the requisite books, which the State Government in terms
of Section 308 of the said Act is obliged to provide to the Special
Notary (Ex-Officio) for the purposes of the said Act.

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12. Accordingly, we had called upon Mr. D. Pangam, the
learned Advocate General of the State of Goa to look into the matter
and to indicate to us the timeline within which the obligation placed
upon the State Government, in terms of Section 308 of the said Act,
could be complied with.

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13.Mr. D. Pangam, the learned Advocate General has today
made a statement that the process for complying with the provisions
of Section 308 of the said Act is currently on and the same will be
expedited. In context of the register of opening of closed wills, as
contemplated by Section 309 (1)(vii) of the said Act and Mr. D.
Pangam, the learned Advocate General made a statement that the
process will be completed within a period of two months from today
and the requisite book/register will be provided to the Special Notary
(Ex-Officio) within this period of two months from today.

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14.Accordingly, by accepting the aforesaid statement, we direct
the State Government to provide the Special Notary (Ex-Officio), the
District Special Notary and the State Special Notary, books necessary
for the purposes of the said Act, as obligated under Section 308 of
the said Act, as expeditiously as possible.

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15.Further, accepting the statement of the learned Advocate
General, we, in particular, direct the State Government to provide

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the Special Notary (Ex-Officio), the register for opening of closed
wills, as expeditiously as possible and, in any case, within a period of
two months from today.

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16.Rule is accordingly made absolute in the aforesaid terms.
There shall be no order as to costs.

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17.All concerned to act on the basis of an authenticated copy
of this order.

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Nutan D. Sardessai, J. M.S. Sonak, J.

Madhavi Dattatrai Thaly., v. the Secretary (Law) and 3 Ors.

Case brief

What is this about?

What did the court decide?

Madhavi Dattatrai Thaly., v. the Secretary (Law) and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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