1. This Appeal from Order challenges order dated 31.05.2024 passed by the Civil Judge Senior Division at Mapusa, in Inventory Proceedings No.396/2017. The Impugned order dismisses an application filed by the Appellants, at Exhibit 58, of the Inventory Proceedings, for deleting the names of the wife of late Gabriel D'Souza (Blandina/ Respondent No.11) and his children Yvette Pinto Nee D'Souza and her husband Mr. Ronald Pinto, Joseph Rodney D'Souza and his wife Uvee D'Souza, Rhona D'Souza and her husband Leslie Pinto, Ryana Bone nee D'souza and her husband Graema Borne, Bosco D'Souza and his wife Tina D'Souza, who are Respondents No.11,12,13 and 17 to 24 respectively.

The Application for deletion of Respondents No.11 to 24 in the aforementioned proceedings was filed based on the fact that these Respondents were admittedly "enemies", under clause (b) of Section 2 of The Enemy Property Act, 1968.

FACTS:

2. Before delving into the matter, it is essential to set out its factual background:

                    a. Inventory Proceedings No. 396/2017 was filed before the Civil Judge Senior Division at Mapusa, for allotment of the estate of late Mr. Joao Jose De Souza ("Joao") who expired on 12.08.1918 and his wife Mrs. Ana Catarina (Maria) De Souza ("Ana"); the Inventory Proceeding was instituted by John D'Souza (Appellant No.1), the great grandson of Joao and Ana.

                    b. Late Joao and Ana had three children, (a) Maria Victoria D'Souza ("Victoria") (who died as Spinster on 31.12.2003), (b) Estaquina D'Souza Fernandes who died on 03.10.1975 and was married to Francis Fernandes (who died on 23.08.1973) and (c) late Gabriel D'Souza who was married to Blandina Pedrina D'Souza (Respondent No.11).

                    c. Vide application dated 19.09.2017; vide order dated 27.09.2017 John was appointed the Head of the Family, subsequently he filed his Statement on Oath on 17.02.2018, listing the heirs of late Joao and Ana including the names of children and Grandchildren of Estaquina and names of heirs of Gabriel.

                    d. The Court issued notices to the said heirs of Gabriel, pursuant to which, Uvee Interested Party No.18, Rhona Interested Party No.19 and her husband Leslie Interested Party No. 20, (daughters and son-in-law of Gabriel) filed their objections dated 12.09.2022 and 31.03.2023, contending that the names of heirs are incomplete. Along with this application, some of the children of Gabriel placed on record a Will dated 09.12.1993, executed by Victoria (daughter of Joao and Ana) in favour of Gabriel's wife, (Blandina) and his children bequeathing her share in the estate left behind by Joao and Ana; the Appellant John filed additional Affidavit cum statement on oath dated 03.04.2023, stating in detail the heirs of late Mr. Joao.

The Interested Parties no.18,19 and 20 filed an application dated 27.04.2023 for production of additional documents to produce Will dated 03.08.1950 executed by Ana in favour of Victoria and Gabriel, bequeathing her share in the estate; in reply dated 04.07.2023, the Appellant herein contended the non-maintainability of the application whilst praying for declaration of the Wills dated 03.08.1950 and 09.12.1993 to be null and void.

                    e. On the same day the Appellant herein filed application praying for deleting/dropping the name of the heirs of late Gabriel i.e. Respondents No.11to13 and 17to 24, as they have no right in the estate left behind, since Gabriel was a Pakistani Citizen and married to Blandina who was also a Pakistani Citizen; the Interested Parties No. 18, 19 and 20 filed their Reply dated 01.08.2023 to this Application. On 17.10.2023, the Appellant placed on record the Order dated 15.09.2023 of the Assistant Custodian of Enemy Property, Mumbai which attached the share of Gabriel received through Will dated 03.08.1950, executed by Ana bequeathing her share in the estate, equally to her children Gabriel and to Victoria and to the exclusion of her daughter Estaquina; the Civil Court dismissed the application dated 04.07.2023 for deleting the names of the heirs, which is impugned herein.

3. The question for determination before me is whether the heirs of Mr. Gabriel D'Souza and Blandina D'Souza, both enemy subjects as they were born in Karachi, Pakistan, before independence, subsequently married and had children and whose children acquired Canadian and British Citizenship, are entitled to inherit and acquire title over the property (subject matter of Inventory Proceeding).

SUBMISSIONS

4. Learned Senior Advocate Mr. Subodh Kantak advanced the following submissions:

                    (i) That according to Section 2(b) of the Enemy Property Act, 1968 Gabriel and his heirs are enemy subjects, the said Gabriel being a Citizen of Pakistan as on the date of the Enemy Property Act, 1968 coming into force, the share which would devolve on Gabriel from his father and from his mother Ana would be enemy property. It was further submitted that through the Will executed by Gabriel's mother Ana in his favour, an additional share would vest in the Custodian, hence, on his demise, all his children would also acquire his share in the property, which would vest in the Custodian. It was further submitted that, in addition, the share in the property of Victoria, derived, both from her succession through her father's (Joao) estate and by virtue of succession to her mother's estate through whom she also acquired an additional share under Will dated 03.08.1950, having been willed on 09.12.1993 to Blandina and her children, would also comprise enemy property; this position would be covered by the provisions of Section 5, 5-B, 22 and 22-A of the Enemy Property Act read with Rule 130, 138 and 151 of the Defence of India Rules, 1971.

                    (ii) It was further submitted that by the insertion of Sub-section (3) of Section 5 and the Explanation thereto, even if the enemy ceased to be an enemy due to a change of nationality (i.e. as in the case of Blandina and her children) or even if legal heirs and successors had acquired Indian citizenship or of any country which was not an enemy, the enemy property would continue to remain vested in the Custodian. It was contended that the share of Gabriel, Blandina and all their children, whether acquired through intestate or testate succession from Joao or Ana Catarina or from Victoria, would therefore vest in the Custodian and therefore all the children of Gabriel and Blandina would have to be dropped/deleted from the inventory and cannot be considered Interested Parties.

                    (iii) That by incorporation of Section 5-B read with Section 22, as amended in the year 2016, nothing contained in any law of succession governing succession of properties shall apply in relation to the enemy property, under the Act and no person, including a successor shall have any right, and shall be deemed to have no right or interest in such enemy property. It was further argued that by virtue of Section 22, the provisions of the Enemy Property Act shall have effect even if by law of succession an enemy may inherit property from a person who is not an enemy; such inheritance or succession would not take effect by virtue of the provisions of Section 22.

5. Learned Senior Advocate Shri Sudin Usgaonkar for Respondents No.11,17,18, 23 and 24 in his submissions stated that;

                    (i) Shri Usgaonkar does not dispute that the certificate issued by the Custodian insofar as the share of the property inherited by Remedios Gabriel vests in the Custodian vide order of 15.09.2023. He however submits that the wife of Gabriel, Blandina and their children having acquired citizenship of a country which is not an enemy, the provisions of the Act would not apply to them; it was further submitted that the share inherited by Victoria through Will dated 03.08.1950 of quarter undivided share, from Ana Catarina (Maria) was certainly not enemy property and therefore, her Will dated 09.12.1993 in favour of Blandina and her children is not a bequest or transfer of an enemy property, as Victoria was not an enemy and Blandina and her children had acquired citizenship of countries which were not enemy countries.

                    i. Reliance was placed on the following case laws:

                    (i) Neelkamal Realtors Suburban Private Limited and Another V/s Office of the Custodian of Enemy Property of India and Others(2023 SCC OnLine Bom 2314)

                    (ii) Lucknow Nagar Nigam and Others V/s Kohli Brothers Colour Lab Pvt Ltd and Others(2024 SCC OnLine SC 188)

6. Mr Deepak Tilve appearing for Respondent Nos.21 and 22 submitted that the order under Section 5-A dated 15.09.2023 passed by the Assistant Custodian was challenged in Appeal under Section 18 of the Enemy Property Act and the Roznama order dated 18.03.2024, of the Joint Secretary to the Government of India records the submission of Custodian of Enemy Property of India, Mumbai, by which it clarified that the dispute is only with regard the share of Gabriel and not with respect to Victoria and therefore her share does not come within the ambit of enemy property. According to the counsel, since a submission was recorded on behalf of the representative of the CEPI Mumbai (Custodian of Enemy Property of India) that the certificate issued was restricted to the share of Joao Jose De Souza and the share of Maria Victoria De Souza does not come within the ambit of enemy property, her share, bequeathed to Blandina and her children is not enemy property and such bequest is not prohibited under the Act.

7. Before making reference to the various provisions of law on which this matter requires to be decided, it would be necessary to record the facts, and events with regard to the succession of Joao and Ana, in the form of a family Tree which is depicted below.

"IMAGE"

8. It would also be pertinent to record chronologically, certain events which have taken place and transactions executed amongst the parties prior to the Impugned order having been passed.

                    (a) The Inventory Proceeding was initiated by the Appellant on 19.09.2017 to partition the estate of Joao Jose D'Souza and his wife Ana Catarina De Souza. The only property/asset listed in the Inventory Proceeding for allotment amongst the heirs of the aforementioned estate leavers, was a land purchased by Joao by Deed of Sale dated 02.07.1910, which is known "Dorvanxea Madda" admeasuring 1750 sq.mts under survey No.195/1 of Village Candolim, together with a house standing thereon bearing House no.1235 ("the property for short").

                    (b) Joao expired on 12.08.1918 leaving his wife, Ana as moiety holder, with half (50%) share in the estate by virtue of her marriage to Joao under the Regime of Communion of Assets applicable to their marriage under the Portuguese Civil Code, applicable to Goa. The balance half share of the estate, which belonged to Joao would devolve on his three children Victoria, Estaquina and Gabriel, each being entitled to 1/6th share in the estate, whilst half share being held by their mother Ana. Thus, as on the demise of Joao in 1918 each of his three children held 1/6th share. Ana Catarina expired on 05.02.1961 leaving a will dated 03.08.1950, executed in Goa, by which she bequeathed her disposable quota equally to Victoria and Gabriel; the Will would therefore dispose 1/2 of 1/4th (1/8th) share in the entire estate, each to her children Victoria and Gabriel, in addition to which the in-disposable half share of Ana Catarina (1/4th) would be equally distributed to her three children Maria Victoria, Estaquina and Gabriel (1/12th each).

                    (c) Goa was liberated from Portuguese rule on 19.12.1961 and became part of the Indian Union. Under the Defence of India Act, 1962 and in terms of Rule 133-V of the Defence of India Rules 1962, the Central Government ordered under Notification of 10.09.1965, that all immovable properties belonging or held by or managed on behalf of all Pakistani Nationals shall vest in the Custodian of Enemy Property for India. The Enemy Property Act, 1968 was brought into force on 20.08.1968. The Defence of India Rules, 1971 brought into force on 5th December 1971. By virtue of Section 5 of the Enemy Property Act, notwithstanding expiration of the Defence of India Act, 1962 and Rules of 1962, all enemy properties vested before such expiration in the Custodian would continue to vest in him. According to sub-Section (2) of Section 24 of the Enemy Property Act, 1968, every order which was made under the Defence of India Rules, 1971 i.e. by the Central Government or Custodian of Enemy Property, relating to Enemy Property shall be deemed to continue in force and be made under the Enemy Property Act. Under Notification dated 18.07.1971 issued under sub-Rule (1) of Rule 151 of the Defence of India Rules, 1971, the Central Government directed that enemy property defined under Clause 4) of Rule 138 of the said Rules, belonging to or held or managed on behalf of an enemy defined under Clause (b) and (c) of Rule 130 or an enemy subject defined under Clause (5) of Rule 138 of the said Rules, shall vest in the Custodian of Enemy Property for India.

                    (d) Gabriel was a citizen of Pakistan residing in Karachi, and was married to Blandina, also a Pakistani citizen. Thus, the 1/6th share [1/3rd of the moiety (1/2) of late Joao] which devolved on Gabriel vested in the Custodian, in addition to which an additional 1/2 of 1/4th share which devolved on Gabriel from his mother (1/2 of the moiety of Ana Catarina being willed by Will dated 03.08.1950 equally to Gabriel and Maria Victoria), also came to vest in the Custodian by virtue of these provisions. Further, by intestate succession, a further 1/3rd of remaining 1/4th (1/12th) of Ana Catarina's share also devolved on Gabriel). The order of the Custodian passed under Section 5-A on 15.09.2023 records that by Notification dated 18.12.1971 issued under Defence of India Rules, 1971, the share of the properties which devolved on Gabriel after his parents' death to the extent of 1/6th share from his father and 1/4th share from his mother would vest in the Custodian.

                    (e) Victoria, the third sibling, who passed away on 31.12.2003 as a spinster, executed a Will dated 09.12.1993 of her entire share in the property, amongst her other estate. Victoria had inherited 1/3rd of her father's share (1/3rd of 1/2 or 1/6th) in addition to which she had inherited by bequest under her mother's Will dated 03.08.1950 an additional 1/8th share, and by intestate succession yet another 1/3rd of her mother's in-disposable quota (1/4th) i.e. 1/12th. Thus, Maria Victoria's Will in favour of Gabriel's wife and his children Respondent No.11,12,13 and 17 to 24, would effectively bequeath 3/8th share to Gabriel's wife and his children, which bequests would take effect on her demise on 31.12.2003.

                    (f) On 09.12.2022 the Assistant Custodian of Enemy Property, issued notices to the heirs of Gabriel on the basis of information received by him that they were enemy subjects having enemy interest in the suit property, who then filed their objections, documents and Affidavit; on considering the same, the Assistant Custodian passed an order dated 15.09.2023 attaching 5/12th share that devolved on Gabriel from his father by intestate succession and from his mother under Will dated 03.08.1950. The Custodian held that Gabriel was a resident of Pakistan on the date of Notification dated 18.12.1971 issued under Defence of India Rules, 1971, and as Pakistan was an enemy country, the share of the property which devolved upon him after his parents' death, qualifies to be enemy property. The Custodian quantified the share of Gabriel inherited from his father Joao as 1/6th and the share of the property is devolved on the enemy Gabriel, from his mother was determined as 1/4th of the property. The Custodian held that 5/12th share of the property which devolved on Gabriel vested in him.

                    (g) The Advocate for the Respondents no. 21 and 22, initiated proceedings under section 18 of the Enemy Property Act, 1968, challenging the order of the Assistant Custodian dated 15.09.2023; the Roznama dated 18.03.2024 marks the presence of the Advocate for the RespondentsNo.21 and 22 and the representative of Custodian of Enemy Property of India, Mumbai, who clarified that the matter in dispute was only with respect to the share of Gabriel and not the share of Victoria as her share does not come within the ambit of enemy property.

9. The point of law raised before me is whether the ownership of this share of Maria Victoria in the property, which stood transmitted, in favour of Blandina and her children by operation of law, is an "enemy property" under Section 2(c) of the Act, and further, if it is held to be enemy property, whether the Respondents No.11,12,13 and 17 to 24 are not entitled to succeed to this share and are required to be deleted.

CONSIDERATIONS:

10. To consider rival submissions, it would be necessary to refer to the various provisions of the Defence of India Act, 1962, the Defence of India Rules, 1962 and various Notifications issued thereunder, the Enemy Property Act, 1968, the Defence And Internal Security of India Act, 1971 and the Defence of India Rules, 1971.

The Defence of India Act, 1962 defines "enemy" and "enemy territory"; the relevant provisions are quoted below:

                    Defence of India Act 1962

                    2 (c) "enemy" means-

                    (i)any person or country committing external aggression against India:

                    (ii)any person belonging to aggression; country committing such

                    (iii)such other country as may be declared by the Central Government to be assisting the country committing such aggression;

                    (iv)any person belonging to such other country;

                    2 (d) "enemy territory" means-

                    (i)any area which is under the sovereignty of a country referred to in sub-clause

                    (ii); or a country referred to in sub-clause

                    (iii), of clause (c) of this section; (ii)any area which the Central Government may, by notification in the Official Gazette, specify to be enemy territory for the purposes of this Act or any rule made thereunder;

Enemy Subject and Enemy Property were defined in the Defence of India Rules, 1962. The relevant Rules are quoted below:

                    Defence of India Rules 1962

                    Rule-133-1. Definitions

                    (1) "Enemy subject" means-

                    (a) any individual who possesses the nationality of a State which has committed external aggression against India, or having possessed such nationality at any time has lost it without acquiring another nationality, or

                    (b) any body of persons constituted or incorporated in or under the laws of such State;

                    (4) "enemy property" means any property for the time being belonging to or held or managed oh behalf of an enemy as defined in Rule 133-A, an enemy subject or an enemy firm:

                    Provided that where an individual enemy subject dies in India any pro-party which, immediately before his death, belonged to or was held by him, or was managed on his behalf, may notwithstanding his death continue to be regarded as enemy property for the purposes of Rule 133-V

                    Rule-133-V. Collection of debts of enemy firm and custody of property.

                    (1) With a view to preventing the payment of moneys to an enemy firm and preserving enemy property, the Central Government may appoint a Custodian of Enemy Property for India and one or more Deputy Custodians and Assistant Custodians of Enemy Property for such local areas as may be prescribed and may by order:

                    (a) require the payment to the prescribed custodian of money which would but for these rules be payable to or for the benefit of an enemy firm; or which would but for the provisions of Rule 133-Q and Rule 133-T be payable to any other person and upon such payment the said money shall be deemed to be property vested in the prescribed custodian;

                    (b) vest, or provide for and regulate the vesting, in the prescribed custodian such enemy property as may be prescribed;

                    (c) vest in the prescribed custodian the right to transfer such other enemy property as may be prescribed, being enemy property which has not been, and is not required by the order to be, vested in the custodian:

                    (d) confer and impose on the custodian and on any other person such rights, powers, duties and liabilities as may be prescribed as respects-

                    (i) property which has been or is required to be, vested in a custodian by or under the order,

                    (ii) property of which the right of transfer has been, or is required to be, so vested,

                    (iii) any other enemy property which has not been, and is not required to be, so vested,

                    (iv) money which has been, or is by the order required to be, paid to a custodian;

                    (e) require the payment of the prescribed fees to the custodian in respect of such matters as may be prescribed and regulate the collection of and accounting for such fees;

                    (f) require any person to furnish to the custodian such returns, accounts and ether information and to produce such documents, as the custodian considers necessary for the discharge of his functions under the order;

                    and any such order may contain such incidental and supplementary provisions as appear to the Central Government to be necessary or expedient for the purposes of the order.

                    (2) Where any order with respect to any money or property is addressed to any person by a custodian and accompanied by a certificate of the custodian that the money or property is money or property to which an order under sub-rule (1) applies, the certificate shall be evidence of the facts stated therein, and if that person complies with the order of the custodian, he shall not be liable to any suit or other legal proceeding by reason only of such compliance.

                    (3) Where, in pursuance of an order made under sub-rule (1)-

                    (a) any money is paid to a custodian, or

                    (b) any property, or the right to transfer any property, is vested in a custodian, or

                    (c) an order is given to any person by a custodian in relation to any property which appears to the custodian to be property to which the order under sub-rule (1) applies, neither the payment, vesting nor order of the custodian nor any proceedings in consequence thereof, shall be invalidated or affected by reason only that at a material time-

                    (i) some person who was or might have been interested in the money or property, and who was an enemy firm, had died or had ceased to be an enemy firm, or

                    (ii) some person who was so interested, and who was believed by the custodian to be an enemy firm, was not an enemy firm.

                    (4) In sub-rules (1), (2) and (3), the expression "custodian" includes a Deputy Custodian of Enemy Property and an Assistant Custodian of Enemy Property and every reference to an enemy firm shall be construed as including a reference to a person who is an enemy as defined in Rule 133-A.

                    (5) Where in pursuance of an order made under sub-rule (1) the assets of a company arc vested in the custodian, no proceedings, civil or criminal, shall be instituted under the Companies Act, 1956, against the company or any director, manage; or other officer thereof except with the consent in writing of the custodian.

                    (6) If any person pays any debt or deal, with any property to which any order under sub-rule (1) applies otherwise than in accordance with the provisions of the order, he shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both and the payment or dealing shall be void.

                    (7) If any person without reasonable cause fails to produce or furnish in accordance with the requirements of an order under sub-rule (1) any document or information which he is required under the order to produce or furnish, he shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.

11. Under Rule 133-V of the Defence of India Rules 1962, the Central Government vide notification of 10.09.1965, declared that all immovable properties belonging or held by or managed on behalf of all Pakistan Nationals shall vest in the Custodian of Enemy Property for India. The contents of the Notification are quoted below:

                    "MINISTRY OF COMMERCE

                    NOTIFICATION

                    New Delhi, the 10th September 1965

                    No. 12/2/65-E. Pty. In exercise of the powers conferred by sub-rule (1) of Rule 133-V of the Defence of India Rules, 1962, the Central Government hereby orders that all immovable property in India, belonging to or held by or managed on behalf of all Pakistan nationals, shall vest in the Custodian of Enemy Property for India with immediate effect.

                    2. Nothing in this notification shall apply to any such property, belonging to or held by or managed on behalf of such of the Pakistan nationals as are employed in the different Missions of the Government of Pakistan in India."

12. Thus, as on 10.09.1965, Gabriel being a Pakistani citizen was an "enemy", or an "enemy subject" and the share of the property which devolved upon him on his father's demise, as also the share of the same property to which he succeeded, by testatory succession vide Will dated 03.08.1950 from his mother, Ana were enemy properties as defined under Rule 133-1 (4) of the Defence of India Rules, 1962. In addition, even the share of the property which devolved on Gabriel from his mother (who was deceased on 05.02.1961) which he succeeded to through intestate succession, as a forced heir, would be "enemy property" under the provisions of the Defence of India Act, 1962. Thus, the share which has devolved on Gabriel by testate or intestate succession from his parents Joao and Ana Catarina, is the following:

                    (i) 1/6th share from his father;

                    (ii) 1/8th share by Will from his mother;

                    (iii) 1/12th share through intestate succession from his mother.

13. Parliament enacted the Enemy Property Act, 1968, which came into force on 20.08.1968. The Statements of Objects and Reasons of this Act refers to the Chinese aggression of 1962 and the vesting of immovable properties in the Custodian of Enemy Property of Chinese nationals under the Defence of India Rules, 1962; similarly, the Statement of Objects also refers to the aggression by Pakistan in 1965 and the vesting of movable and immovable property belonging to Pakistani citizens, in the Custodian of Enemy Property under the Defence of India Rules, 1962. The Objects further refer to the need for management of these enemy properties by the Custodian of Enemy Properties for India, which was the main reason why Parliament enacted the Enemy Property Act, 1968.

14. Under the Enemy Property Act, 1968, the words "enemy", "enemy subject" and "enemy property" were defined in the following provisions:

                    2(b) "enemy" or "enemy subject" or "enemy firm" means a person or country who or which was an enemy, (an enemy subject including his legal heir and successor whether or not a citizen of India or the citizen of a country which is not an enemy or the enemy, enemy subject or his legal heir and successor who has changed his nationality] or [an enemy firm, including its succeeding firm whether or not partners or members of such succeeding firm are citizen of India or the citizen of a country which is not an enemy or such firm which has changed its nationality), as the case may be, under the Defence of India Act, 1962, and the Defence of India Rules, 1962 [or the Defence of India Act, 1971 (42 of 1971) and the Defence of India Rules, 1971). but [does not include a citizen of India other than those citizens of India, being the legal heir and successor of the "enemy" or "enemy subject" or "enemy firm"];

                    Explanation 1. For the purposes of this clause, the expression "does not include a citizen of India" shall exclude and shall always be deemed to have been excluded those citizens of India, who are or have been the legal heir and successor of an "enemy" or an "enemy subject" or an "enemy firm" which or who has ceased to be an enemy due to death, extinction, winding up of business or change of nationality or that the legal heir and successor is a citizen of India or the citizen of a country which is not an enemy.

                    Explanation 2.- For the purposes of this clause, it is hereby clarified that nothing contained in this Act shall affect any right of the legal heir and successor referred to in this clause (not being inconsistent to the provisions of this Act) which have been conferred upon him under any other law for the time being in force:]

                    2(c) "enemy property" means any property for the time being belonging to or held or managed on behalf of an enemy, an enemy subject or an enemy firm:

                    Provided that where an individual enemy subject dies in the territories to which this Act extends [or dies in any territory outside India), any property which immediately before his death, belonged to or was held by him or was managed on his behalf, may, notwithstanding his death, continue to be regarded as enemy property for the purposes of this Act.

                    Explanation 1. For the purposes of this clause, it is hereby clarified that "enemy property" shall, notwithstanding that the enemy or the enemy subject or the enemy firm has ceased to be an enemy due to death, extinction, winding up of business or change of nationality or that the legal heir and successor is a citizen of India or the citizen of a country which is not an enemy, continue and always be deemed to be continued as an enemy property

                    Explanation 2.- For the purposes of this clause, the expression "enemy property" shall mean and include and shall be deemed to have always meant and included all rights, titles and interests in, or any benefit arising out of, such property:]

15. Section 5 of the Enemy Property Act, 1968 stipulates that notwithstanding the expiration of the defence of India Act, 1962 and Rules made thereunder, all enemy property vested in the Custodian under the Rules, would continue to vest in the Custodian from the commencement of this Act. By a further amendment to Section 5, Sub-section (2) was incorporated thereto, after coming into force of the Defence of India Act, 1971 and Rules of the same year, vesting all enemy property, which earlier vested in the Custodian, in the Custodian under this Act. This amendment was incorporated in 1977. In 2017, a further amendment in the form of Sub-Section (3) to Section 5 was incorporated, whereby, even if an "enemy" so declared earlier, had ceased to be an enemy due to death or change of nationality or that such enemy's legal heirs or successor is a citizen of India or a citizen of a country not an enemy, such enemy property would continue to remain and vest in the Custodian, notwithstanding any of the above events taking place. The provisions of Section 5 are quoted below:

                    5. Property vested in the Custodian of Enemy Property for India under the Defence of India Rules, 1962, and the Defence of India Rules, 1971 to continue to vest in Custodian.-

                    [(1)] Notwithstanding the expiration of the Defence of India Act, 1962 (51 of 1962), and the Defence of India Rules, 1962, all enemy property vested before such expiration in the Custodian of Enemy Property for India appointed under the said Rules and continuing to vest in him immediately before the commencement of this Act, shall, as from such commencement, vest in the Custodian. 5 [(2) Notwithstanding the expiration of the Defence of India Act, 1971 (42 of 1971) and the Defence of India Rules, 1971, all enemy property vested before such expiration in the Custodian of Enemy Property for India appointed under the said Rules and continuing to vest in him immediately before the commencement of the Enemy Property, (Amendment) Act, 1977 (40 of 1977) shall, as from such commencement, vest in the Custodian.] 6[(3) The enemy property vested in the Custodian shall, notwithstanding that the enemy or the enemy subject or the enemy firm has ceased to be an enemy due to death, extinction, winding up of business or change of nationality or that the legal heir and successor is a citizen of India or the citizen of a country which is not an enemy, continue to remain, save as otherwise provided in this Act, vested in the Custodian.

                    Explanation. For the purposes of this sub-section, "enemy property vested in the Custodian" shall include and shall always be deemed to have been included all rights, titles, and interest in, or any benefit arising out of, such property vested in him under this Act.]

16. The effect of Section 5 with all its amendments would be that, notwithstanding an enemy passing away, or his successors having changed their nationality or even being Indian citizens, the enemy property having already vested in the Custodian by operation of the provisions of the Defence of India Act, 1962, the Rules framed thereunder of 1962, the Defence of India Act, 1971 and the Rules of 1971 framed thereunder, would continue to vest in the Custodian, and no successor of the person originally declared "enemy" under any of the aforementioned Acts would succeed to such property.

17. In addition, the Enemy Property Act, 1968 was further amended by incorporation of Section 5-B, by which any law relating to succession or governing succession of property was rendered ineffective; this amendment was incorporated with effect from 01.01.2016 and reads as under:

                    5-B. Law of succession or any custom or usage not to apply to enemy property-Nothing contained in any law for the time being in force relating to succession or any custom or usage governing succession of property shall apply in relation to the enemy property under this Act and no person (including his legal heir and successor) shall have any right and shall be deemed not to have any right (including all rights, titles and interests or any benefit arising out of such property) in relation to such enemy property.

                    Explanation. For the purposes of this section, the expressions "custom" and "usage" signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law in the matters of succession of property.]

18. By this provision, effectively, no person who is a successor of the person declared as an "enemy", even if the enemy or such person acquires citizenship of a country not an enemy of India or such person is an Indian citizen, could acquire rights to such enemy property.

19. The definition of "enemy" as initially legislated by Parliament only included a person or country declared to be an enemy; however, by an amendment which was brought into effect from 07.01.2016, the term "enemy subject" was widened, to include the legal heir and successor of any enemy, whether or not a citizen of India or even a citizen of a country which is not an enemy or enemy subject, and also included the legal heir and successor of the original enemy who had changed his nationality.

This definition assumes great relevance in the facts of the present case, since it is an admitted position that, though Gabriel was a Pakistani citizen, he migrated to Canada and applied for Canadian citizenship in around 1982 or 1983; it would be irrelevant whether Gabriel actually obtained Canadian citizenship as he was an "enemy" in terms of the definition assigned to the word, on the Enemy Property Act coming into force in 1968, when his share automatically vested in the Custodian. His wife Blandina, Respondent No.11 who was a Pakistani citizen till 1982, acquired Canadian Citizenship along with her children Respondents No.12 to 20 and 23 to 24 and Respondents no.21 and 22 acquired British Citizenship. Consequently therefore, all, Gabriel's wife Blandina and their progeny, which include Yvette Pinto Nee D'Souza and her husband Mr. Ronald Pinto, Joseph Rodney D'Souza and his wife Uvee D'Souza, Rhona D'Souza and her husband Leslie Pinto, Ryana Bone nee D'souza and her husband Graema Borne, Bosco D'Souza and his wife Tina D'Souza, who are Respondents No.11,12,13 and 17 to 24 respectively all fall within the definition of enemy and any property, which consists of an undivided share in the property which may have been inherited under testamentary or intestate succession by Gabriel and all his children would vest in the Custodian. Consequently therefore the entire share of Gabriel or Blandina and their children cannot be allotted to them in the inventory proceeding and would vest in the Custodian. As such the Custodian of the Enemy property ought to have been made a party to the inventory proceeding as various consequences or measures that may have been adopted under the Enemy Property Act, 1968 would affect the rights of the co-heirs who are not "enemy". These would include Respondents No.2 to 10 and 25 to 43, progeny of Estaquina.

20. Similarly by virtue of these very same provisions the operation of the Will dated 03.08.1950 to the extent of halfshare bequeathed by Ana Catarina to her daughter Victoria and the entire bequest by Victoria under will dated 09.12.1993 in favour of Blandina (wife of Gabriel) and her children, who are all "enemy subjects" would be rendered void and inoperable.

21. Since the question of whether the share of Victoria bequeathed to Blandina constitutes "enemy property" and vests in the Custodian, has not been answered by the trial court, this question would have to be presently dealt with in view of the arguments of Senior Advocate Shri. Sudin Usgaonkar, that the property under Victoria's will is not enemy property, since Victoria herself was not enemy.

22. In my opinion, from the operation of the amended provisions discussed above, the prohibition under Enemy Property Act, 1968 would prohibit such a bequest from being made. The bequest would take effect to a person who was not an enemy on the demise of Victoria on 31.12.2003. As on that date therefore, the Will of Victoria was inoperative and void by virtue of the prohibition and therefore, the share of Maria Victoria in the entire property would not be transferred by will to Blandina and her children but would now have to be allotted in inventory proceedings to such heirs that would have the right through intestate succession.

23. In Lucknow Nagar Nigam (supra) cited by the Respondents, was a case where the Supreme Court was deciding whether statutory vesting of enemy property under the Act confers in the Custodian the status and right of ownership within the meaning of Article 285 of the Constitution of India, and if held in the affirmative, whether the Custodian would be exempted from payment of property or local taxes to the Municipal Corporation. After examining the provisions of Section 5-A, 5-B and the Rules framed under the Act, it has been held by the Supreme Court that the same would not amount to transfer of ownership inter vivos or by succession and the Custodian only acts as a trustee of the enemy property vested in him. That judgment does not answer the question for consideration before me.

Neel Kamal Realtors (supra), was a case which questioned the powers of the Custodian to issue communications to Authorities to pass prohibitory or injunctive orders. Considering the provisions of Section 5 and 5-A of the Act, this Court went on to hold that issuance of a certificate only vests the enemy property in the Custodian but there is total absence of power in the Custodian to issue directions to authorities to issue prohibitory or injunctive orders. The Judgment essentially deals with the powers of a Custodian but does not lay down any ratio as to the effect of transfer of a property inter vivos to an enemy or whether a bequest would operate in favour of a person who falls under the definition of "enemy" under the Act.

24. For the reasons stated above, the impugned order dated 31.05.2024 passed by the Civil Judge, Senior Division at Mapusa in Inventory Proceedings No.396/2017/C/A is quashed and set aside; the application at Exh.58 is partly allowed; for reasons stated above, the children/heirs of Gabriel D'Souza and his wife Blandina D'Souza, have no right to any part of the estate of Joao Jose De Souza and Ana Catarina (Maria) De Souza, however their names may not be deleted from the Inventory Proceeding. The Inventory Court shall implead the Custodian of Enemy Property for India with his office at Kaiser-E-Hind Building, Currimbhoy Road, Ballard Estate, Mumbai-400001 who shall represent the undivided share of the estate which has now vested in it and be heard in the Inventory Proceeding. The Inventory Proceeding shall be decided in accordance with law, and what is held in this Judgment.

25. The Appeal is disposed of. Rule is made absolute in the above terms. No cost.

26. In view of the disposal of the Appeal, the Civil Application No.90 of 2026 and Misceallaneous Civil Application No.479 of 2026 shall stand disposed of.