Section 2012

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Article 2108 - Collation of common assets gifted by both spouses - When the gift is of common assets made by both the spouses, one half shall be collated at the death of each of them; the assets gifted being exclusive to each spouse, shall be collated in whole upon the death of the spouse. § 1 - In respect of assets which have not been gifted, the valuation of common assets once made, is valid for the second partition, bearing in mind the oscillation of the value of the currency between the two acts. § 2 - In the event of the partition on the death of both the donors being simultaneous, the common assets gifted shall be appraised only once with reference to the value at the time of the opening of inheritance of the predeceased and such value shall be mentioned in the second inheritance after being corrected as per oscillation of value of the money between the dates of opening of the inheritance of one and the other.  Corresponds to Section 103 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. 442 Article 2109 - Manner of satisfying the co-heirs of the donee - The co-heirs of the donee shall be satisfied with assets of the same kind and nature, if possible.  Corresponds to Section 104 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2110 - Compensation to co-heirs of the donee - Whenever it is not possible to satisfy the co-heirs in the aforesaid manner, where the gifted assets are immovable, the said co-heirs shall be entitled to be indemnified in cash, and, there being no cash in the inheritance, as many assets as may be necessary to obtain the due sum shall be sold in auction. However, if the gifted assets are movables, the co-heirs shall be entitled to be satisfied with other movables of the inheritance, as per their just value.  Corresponds to Section 104 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2111 - Gifts which exceed legitime of donee - When the value of the gifted assets exceeds the legitime of the donee, the excess shall be computed in the disposable portion of the donors, and if, nevertheless, there is excess over the legitime and disposable portion, the donee shall be liable to restore such excess. § 1 – If there are various donees and the disposable portion is not sufficient for satisfaction of all of them, what is prescribed in articles 1495 and 1496 shall be observed. § 2 - In such a case, if the estate-leaver has disposed of the disposable portion in favour of another, such disposition shall be of no effect.  Corresponds to Sections 105 & 106 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2112 - Question as to obligation to collate - Where there is dispute between the co-heirs regarding the obligation to collate or over the objects of the collation the proceedings for partition shall not be withheld for this reason, upon the person bound to collate furnishing security.  Corresponds to Section 107 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. DIVISION II COLLATIONS RELATING TO ASSETS NOT SUBJECT TO PARTITION 443 Article 2113 - Improvement on the assets which devolve in preferential manner - The successor of any assets which devolve in a preferential manner, is bound to collate the improvements whereby the value of the assets has been increased.  Corresponds to Section 108 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2114 - Collation of assets which are to devolve in preferential manner acquired with consideration - Where the assets, which are to devolve in a preferential manner, have been acquired with consideration the collation will be done either with reference to the price or by valuation, at the option of the successor.  Corresponds to Section 108 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. SUB SECTION IV PAYMENTS OF DEBTS Article 2115 - Payment of debts of inheritance - The liability of the inheritance for payment of debts of the estate-leaver is joint and several but, after the partition is made, the co-heirs are only liable in proportion to the share of the inheritance allotted to them.  Corresponds to Section 404 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2116 - Expenses of funeral - The expenses towards funeral shall be paid by the estate yet undivided, whether there are forced heirs or not. The estate or one third thereof is not liable for any other expenses with the suffrages for the soul of the deceased, when they are not directed by will, in accordance with article 1775.  Corresponds to Section 405 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2117 - Approval of debts in inventory of majors - In the inventory amongst the majors, the debts shall be considered when all the parties thereto agree.  Corresponds to Section 416 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2118 - Approval of debts in inventory of minors - In the inventory amongst the minors under interdiction, absentee or unknown, only the debts, payment whereof is authorized by family council with no objection of any of the major co-heir, shall be considered. 444 § Sole paragraph – The creditors who are parties to the inventory and demand payment of their credits shall present the instruments on the basis of which the claim is put.  Corresponds to Section 416 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2119 - Manner of payment of debts - Whenever it is admissible, the payment shall be made in the inventory amongst the majors, in cash or in assets separated for this purpose. § Sole paragraph – Where the creditor is not willing to take the said assets, they shall be sold in public auction and the creditor shall be paid out of the proceeds thereof.  Corresponds to Section 419 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2120 - Manner of payment in inventory amongst minors - In the inventory amongst the minors or similar persons, the payment shall be made in cash, or, whenever there is no cash in the estate, by way of movables or immovables; but in such case, the assets shall be put in auction, and only when there is no bidder, they shall be allotted to the creditor if he is willing to receive them for their value.  Corresponds to Section 419 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2121 - Redemption of certain encumbrances - Where the immovable assets of the inheritance are charged with mortgage, or with redeemable installments, any of the co-heirs may demand, there being cash available in the estate, that the said charges be redeemed before the partition.  Corresponds to Section 406 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2122 - Deduction of encumbrances in rem in the partition - Where the immovable assets are enlisted for the partition alongwith the said charges, or any other charges they shall be valued as if there were no charges; thereafter the capital corresponding to the charge shall be deducted and the heir, who remains with the immovable asset, shall exclusively pay the said charge. Article 2123 - Right of restitution to the person adversely affected with payment of charge - The co-heir who pays more than what he was liable to pay in the common debt, as a result of the 445 mortgage, charge of which was not deducted, shall have only the right to receive from other co- heirs the part which they were liable to pay, in proportion to their hereditary share and that too when the co-heir, who had paid it, gets subrogated in the rights of the creditor. § Sole paragraph – In case of insolvency of any of the co-heirs, his part shall be divided proportionately, if at the time of the partition, the charge was unknown or its existence was disputed. Article 2124 - Probative value of the instruments against estate-leaver - The instruments based on which execution is filed against the estate-leaver, shall have the same force against the heirs themselves but the creditors shall not proceed further with the execution, without the heirs being brought on record in such capacity and summoned again to make the payment within ten days or to face the execution proceedings. Article 2125 - Inheritance where debts exceed assets - Where the admissible debts exceed the mass of inheritance and the creditors agree with their division pro-rata or in accordance with preferential claims which may exist, their agreement shall be observed; in case of disagreement, they shall pursue competent remedies.  Corresponds to Sections 417 & 419 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. SUB SECTION V LICITATION AND PARTITION Article 2126 - Form of partition and declaration of licitation - After the description and appraisal is done, as aforesaid, the parties shall be heard as to the form of partition, and if any of them is willing to bid for any property or other object, he shall so declare in his reply.  Corresponds to Sections 411, 413 & 415 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2127 - Formalities of licitation and when to be held - The licitation shall precede the act of partition, after all the parties are summoned, and it shall take place amongst them only, as if it is a case of an auction.  See Sections 429 & 430 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. 446 Article 2128 - Objection to the licitation. Second appraisal - Where the declaration, referred to in article 2126, falls on a thing, which by its nature and without its detriment cannot be divided, and in which any co-heir has major part, or it falls on a thing which has to be allotted to him as a head, such co-heir may object to the licitation and apply that the appraisal be rectified.  Corresponds to Section 426(1) of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2129 - Licitation over the things value of which exceeds share of person offering the bid in properties to be partitioned - Where the said declaration falls on things, value of which exceeds the share of the declarant in the properties to be partitioned, and the same declarant does not agree to deposit immediately the excess, the object of licitation shall be put in public auction and sold for the highest bid offered above the appraisal value. § Sole paragraph – In the absence of bid above the appraisal, the declaration for the licitation shall be deemed as not made and the partition shall be proceeded with as if no declaration was made. Article 2130 - Licitation in case of persons under disability - In the inventory amongst minors or similar, they shall be admitted to bid, being represented by their guardians or curators, duly authorized by the respective family councils, whenever their existence is mandatory. Article 2131 - Licitation not to be withdrawn - It is not lawful to withdraw the licitation legally done.  Corresponds to Section 430(4) of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2132 - Objection against excessive valuation - Where any of the parties contends that the appraisal of any thing is excessive, he shall so declare at the time of giving reply as to the form of partition, and at the same time he shall declare the highest price that the thing may fetch.  See Sections 413 & 425 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2133 - Agreement in respect of new price declared - Where all the parties, being major, agree with the price declared, the partition shall be made on the basis of such price and not by that of the appraisal.  See Section 425 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. 447 Article 2134 - Disagreement in respect of new price declared - Where any of the parties is a minor, or when, all being majors, do not agree with the declared price, the thing, pertaining to which declaration was made, shall be put in public auction, with the said price, and sold for the highest bid obtained above the said price, even though the same does not reach that of the appraisal.  See Section 425 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2135 - Acceptance of the thing as per value of appraisal - Where any of the parties being major, declares that he accepts the thing, to which the declaration pertains, by the value given to it in the appraisal, and it fits in the share which he should get in the assets to be partitioned, or in the case it does not fit, he agrees to deposit the excess; and also the inventory being amongst majors, if they agree that it may be allotted without deposit, no auction shall take place, and the proceedings for partition shall be proceeded with, as if no declaration was made.  See Section 425 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2136 - Auction open to all parties - In the cases of articles 2129 and 2134 all the parties shall be admitted to bid, including the minors or similar, represented in term of article 2130. Article 2137 - Deposit of price of auction - Where the adjudication is done to a stranger, he shall deposit in the same act, the price of the auction or shall furnish security for immediate payment; however, where it is done to any of the parties, he shall be liable to deposit, or furnish security, for the value exceeding the share which he is likely to have in the properties to be partitioned. § Sole paragraph – The price of the auction whether deposited or not, shall enter into the mass to be partitioned. Article 2138 - Steps subsequent to licitation - After the licitations are concluded, the partition shall take place, by separating firstly the assets necessary for the payment of debts, which are fit to be considered, and, thereafter, those necessary for filling up the moiety of the surviving spouse, or of the third part, if such separation is to be made. 448  See Section 435 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2139 - Satisfying shares of those who have not bid or who are not subject to collation - When there have been licitations amongst the co-heirs or collations, those who have not got by licitations or those who have not collated, shall be satisfied with so much of their assets in terms indicated in articles 2109 and 2110.  See Sections 436 & 438(d) of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2140 - Sortition of remaining properties - The remaining properties shall be divided by casting lots amongst the co-heirs, in equal lots.  See Section 440 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2141 - Sortition there being heirs with unequal shares - Where the heirs, or some of them, have no right to equal lots, there shall be as many lots as may be necessary, in order that each one may be paid of his share.  See Section 440 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2142 - Composition of lots - The lots shall be formed with the utmost equality, and whenever possible, each of them shall be comprised of equal portion of properties of the same class or of the same kind.  See Section 440 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2143 - Easement arising from division of properties - When there has been division of properties which makes indispensible new easements, due declaration thereof shall be made. § Sole paragraph – If as a consequence of partition any land or building becomes landlocked, for failure to comply with the mandate of this article, the respective owner may judicially demand the constitution of necessary easements in accordance with article 2309 onwards, and the compensation payable to the servient owner, as well as the expenses with the respective suit, shall be payable by all the parties to the partition. 449 Article 2144 - Objection against composition of lots - After the lots have been formed the parties may raise objections which they like as to their equality.  See Section 440 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2145 - What is to be done in case of indivisible things which have not been brought by licitation and which do not fit in the lots - Where amongst the assets to be partitioned there is any thing in respect of which there has not been licitation and which neither can be fitted in the lots nor can be divided due to its nature or without detriment, the parties or their representatives shall deliberate, whether it should be sold and how, or if it should be adjudicated to any of the heirs upon the condition of payment of due owelty or partition, or, finally, whether they would enjoy it in common.  Corresponds to Section 438(2)(a) of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2146 - Sale of thing in public auction - Where any of the parties declares that he does not want to pay owelty of partition he is not bound to do so if the said owelty exceeds one third of his lot, and the sale of the said object in public auction shall take place. § Sole paragraph – To such an auction what is laid down in article 2137 shall be applicable. Article 2147 - Absence of purchaser - Where there is no buyer for the objects and the inventory is amongst majors, whatever is agreed upon by them in respect of the said object shall be done, and in case the inventory is amongst minors, whatever is decided by the family council shall be done. Article 2148 - Payment of life time annual pensions in inventory of minors - Where the estate-leaver of the inheritance under partition, amongst forced heirs, minor or similar, has bequeathed any life time annual pension to be paid out of his disposable share, without the same being put specially in charge of any heir or legatee, a capital equivalent to twenty pensions shall be separated and such capital shall be delivered to the legatee, who will be subject to all the duties of a mere usufructuary, such capital, however, being partitioned at once amongst the interested parties. 450 Article 2149 - Payment of said pensions in inventory of majors - Where the bequeathed pension is imposed on the estate to be partitioned amongst various major heirs, and they do not choose amongst themselves one who should take upon himself charge for the payment of the said pension, what is prescribed in the preceding article shall be observed. Article 2150 - Pension capitalization of which exceeds disposable share - Where in case of article 2148 the properties of the disposable portion are not sufficient to raise the capital mentioned therein, the said portion shall be delivered to the legatee, as usufructuary, and whatever is earned from the said portion shall be the pension. Article 2151 - Separation of assets for payment of debts in the inventory of minors - Where there is need to separate assets for the payment of debts, in an inventory amongst minors, preference shall always be given for such purpose to movables, and amongst them the less valuable or of more difficult maintenance. Article 2152 - Separation for same purpose in inventory of majors - In the inventory amongst majors, the separation for the payment of debts shall be done as the parties like, and where there is no agreement between them the same rule shall be observed. Article 2153 - Delivery of title deeds of the partitioned properties - As soon as the partition is over, each of the co-heirs, shall be given the title deeds in respect of the objects allotted to them, if such titles do exist. Article 2154 - Title deeds of partitioned properties - The title deeds of the divided properties shall be delivered to the one who holds major part therein with the obligation to share them with his co-owners whenever necessary. Article 2155 - Title deeds of co-owners with equal parts - The title deeds of co-owners with equal parts, or common to all, shall remain in possession of the co-heir who is chosen by the parties or appointed by the court, in the absence of agreement amongst them. 451 Article 2156 - Report of delivery of title deeds - A record of such deliveries shall be drawn in the proceedings of inventory which shall be signed by the judge, and by one who receives the title deeds. Article 2157 - Payment of costs of inventory - The costs of the inventory shall be paid by the administrator who shall deduct them from the shares delivered to the coheirs or shall have them by way of execution.  See Sections 443 & 456 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. SUB SECTION VI EFFECTS OF PARTITION Article 2158 - Effects of partition - The partition of the assets legally made in respect of which there had not been any objection, confers on the co-heirs exclusive ownership of the assets partitioned among them. Article 2159 - Eviction from partitioned properties - The co-heirs are liable to be indemnified reciprocally in case of eviction from the partitioned objects. Article 2160 - Cases in which the evicted has no right to get compensation - Such liability ceases when there is agreement to the contrary or if the eviction takes place owing to the fault of the evicted or owing to cause subsequent to the partition. Article 2161 - Insolvency of some of the co-heirs of the evicted person - The evicted person shall be indemnified by the co-heirs, in proportion of their hereditary shares, but in case any of them has become insolvent, the remaining co-heirs shall be liable for his part, in the said proportion, after deducting the share which would correspond to the indemnified. Article 2162 - Prescription of suit for damages in respect of eviction - The suit for the enforcement of the warranty mentioned in preceding articles, prescribes, as per general rules, reckoned from the date of eviction. 452 SUB SECTION VII RESCISSION OF PARTITION Article 2163 - Rescission in case of extra-judicial partition - The partitions made extra judicially may be rescinded only in cases in which the contracts can be rescinded.  Corresponds to Sections 447 & 450 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2164 - Rescission in case of judicial partition - The partitions judicially made and confirmed by the judgment become final for want of appeal, cannot be rescinded, except in cases of nullity of proceedings and in those in which a judgement which has become res judicata can be revoked.  Corresponds to Sections 447 & 450 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2165 - Preterition or lack of intervention of some co-heirs - Where the judicial partitions have been made with preterition of any of the co-heirs, or of one who has been so declared by the Court, they shall not be rescinded without proof of fraud or bad faith on the part of the other parties; but they shall be liable to make up the share of the excluded heir in prevailing currency, taking into consideration the value of the properties on the date of the compounding.  Corresponds to Section 448A(1) of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 2166 - Additional partition - The omission of some of the objects in the partition is not a ground to nullify the same, and only an additional partition of such objects shall be made.  Corresponds to Section 446 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. 453 PART III RIGHT TO PROPERTY SOLE BOOK (Articles 2167 – 2360) 454 455 PART III RIGHT TO PROPERTY SOLE BOOK TITLE I PRELIMINARY Article 2167 – Definition of right to property55 – Ownership (right to property) is the faculty which man has to use for the conservation of his existence and improvement of his condition, all that he has lawfully acquired and which therefore he may freely dispose. Article 2168 – Kinds of ownership – Ownership may be, absolute or terminable, sole or joint, perfect or imperfect. Article 2169 – Rights of the owners – The right to ownership includes :