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2019 DIGILAW 1842 (BOM)

Madhavi Dattatrai Thaly v. Secretary (Law), Secretariat, Alto-Porvorim, Bardez - Goa

2019-08-05

M.S.SONAK, NUTAN D.SARDESSAI

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JUDGMENT : M.S. Sonak, J. 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. 2. Rule. Rule is made returnable forthwith with the consent of and at the request of the learned Counsel for the parties. 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). 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 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. 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. 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. 7. At this stage, 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 State Government for recording opening of closed wills. The Petitioner was told to make inquiries after two weeks. 8. 7. At this stage, 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 State Government for recording opening of closed wills. The Petitioner was told to make inquiries after two weeks. 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. 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. 10. In the aforesaid regard, reference is firstly necessary to the provisions of Section 308 of the said Act, which places obligation on 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. 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. 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. 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. 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. 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. 15. 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. 15. Further, accepting the statement of the learned Advocate General, we, in particular, direct the State Government to provide 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. 16. Rule is accordingly made absolute in the aforesaid terms. There shall be no order as to costs. 17. All concerned to act on the basis of an authenticated copy of this order.