Preamble

SECTION I GENERAL PROVISIONS Article 1448 –Powers of the Judge in matters of fact in voluntary Jurisdiction proceedings – In the exercise of voluntary jurisdiction the Court may freely investigate facts, collect evidence and recover information which it deems convenient for a proper decision. Only such evidence will be admitted as the Judge may find necessary. Articles 1448-1501 - Voluntary jurisdiction, Provisions regarding children and spouses are matter of Family Law and would be by and large in force. In Portuguese Procedural Law there is a traditional distinction between voluntary jurisdiction and adversarial jurisdiction. In fact the Old Portuguese Civil Procedure Code of 1876 made a reference to this distinction in its very first article. But as the distinction is not sharply laid down no such definition is found in the Portuguese Civil Procedure Code of 1939 instead the proceedings under voluntary jurisdiction are straight away listed exhaustively from arts.1452 to 1560. Never the less in a nutshell voluntary jurisdiction is an exercise jurisdiction which is essentially administrative in nature whereas adversarial jurisdiction involves the exercise of truly adjudicative powers. Article 1449 – Requirements of convenience to prevail over strict legality – In the measures to be taken, the Court is not subject to strict rules of legality; it should adopt in each case a solution which it finds most convenient and adequate.

Article 1450 – Form of petition and defense – The application may be framed without

paragraphs and any objection or reply may be filed in the same manner. There are certain proceedings in which defense is permissible only on certain grounds like delivery of minor (art. 1460), delivery of wife (art.1470) and taking of the wife back by husband (art. 1471). In these cases the defense may be raised in the very proceedings of delivery or taking back mentioned above. There are others in which there is a time limit for filing the defense (arts 1477 – 1528 & 1540). There are other cases in which Interested Parties have to be notified to give their say; but care has to be taken that the say or defense has to be filed within 5 days (arts.1507, 1543, 1550 & 1553) or within 10 days (art.1464). In remaining cases it is provided that the interested parties shall be heard or notified to reply without fixing the time for the reply (arts.1481, 1488, 1503, 1523, 1524, 1525, 1531, 1532, 1537 and 1538). These provisions have their significance when there is a reference to contest or time limit is fixed; where the law fixes no time limit the term contest is not used. In such cases the expression used is that they shall be heard or they shall be notified to give their say. From this, one can see that the legislature has avoided the operation of Art.490 regarding time limit and bring in to play the general rule contained in art.154. Therefore in cases in which no time limit is fixed the time limit is 5 days within which the persons directed to be heard or cited should file their reply. Article 1451 - Bar on appeals and reversibility of decision - There shall be no appeal to the Supreme Court from the decisions pronounced in decision of voluntary jurisdiction. The decisions may however be freely modified without prejudice to the effects they have already produced. SECTION II PROVISIONS REGARDING CHILDREN AND SPOUSES SUB-SECTION I PROVISIONS RELATING TO CHILDREN Article 1452 - Conference for regulating the exercise of parental power - Upon a divorce or a separation of persons and assets or annulment of marriage being granted if there are minor children the Judge seized of the matter, shall await for 8 days, for the parents to apply for the judicial confirmation of the agreement arrived at between them as to the exercise of the parental power. If there is no application for confirmation of any agreement, the Court dealing with guardianship of the minors shall notify the parents for a conference which shall take place within 15 days.

The parents shall be bound to appear in person. They may be represented by an attorney only if it is absolutely impossible for them to appear or if they reside outside the jurisdiction of the Court or the island where the conference takes place. When both are present or represented, the Judge shall lay down in accord with the parents, the exercise of parental power, drawing up the record of the deliberation. If one or both neither appear nor are represented the Judge shall decide after hearing the one who is present or represented and after ordering the steps which he deems necessary. § 1: If the Court dealing with guardianship is different from the one of the proceedings of the suit, the latter shall transfer to the former within a period of 8 days the certified copy of the Order and pleadings; unless the proceedings are concluded in which case he will transfer the file itself. § 2: Before the Conference the Judge of guardianship jurisdiction, shall take such measures which are indispensable after hearing the parents if possible and making the necessary enquiries. § 3: If the exercise of parental powers is fixed by agreement, the guardianship jurisdiction shall always supervise its compliance. It may delegate the supervision to a suitable person who may exercise the same under the supervision of the curator of minors. § 4: If any of the parents reside at unknown place, the conference shall take place within 30 days and the absentee shall be summoned for the same by means of public notices which shall be affixed one on the door of the court and another on the door of the last residence of the absentee.

Article 1453- Procedure in the absence of agreement or in case the same is not performed

by both - In the absence of agreement or when the agreement is not carried out by both the parents they shall be notified within 10 days to allege what they deem convenient as regards the exercise of parental power. Along with the pleadings each of the parents shall attach documents and the list of witnesses not exceeding 5 and apply for any measures. Steps to be taken outside the jurisdiction shall take place if the court finds them indispensable. § Sole paragraph: The failure to comply with the agreement may be brought to the notice of the guardianship Court by any of the persons or authorities referred to in the second part of article 1458.

Article 1454 - Hearing of the arguments and judgment - After the necessary steps are taken, hearing of arguments and judgment shall take place, in which the procedure laid down from summary proceedings shall be followed with the following modifications:- a)If the parents are present the judge shall question them separately; b)After the oral arguments of the appointed lawyers the curator of minors shall be heard; c)The decision shall be recorded in the proceedings of the hearing; § Sole Paragraph: The hearing may be adjourned only once if any of the parents or a witness which cannot be dispersed remains absent for justifiable reason. Article 1455 - Judgement - Within a period of 10 days the judgment shall be drawn from which appeal shall lie to the High Court. The Court shall regulate the exercise of parental power in accordance with the interest of minors who may be entrusted to the care of any of the parents or of third person or any establishment of charity or education. In the Judgment the Court shall also fix the maintenance due to minors and the mode of its payment in accordance with the law. § Sole Paragraph: All interlocutory appeals filed during the course of the proceedings shall be transferred to the superior Court along with the appeal from the final judgment. Article 1456 - Consequences of failure to comply by one of the parents - If one of the parent does not comply with whatever has been agreed or decided, the other may apply to the guardianship Court either that necessary measures be taken from coercive compliance if possible or the defaulter may be convicted with fine or that the terms settled may be modified, in the last case the provision of the last clause of the body of article 1452 being observed.

Article 1457 - Alteration of the provisions - When due to subsequent circumstances it is

necessary to modify whatever had been settled as regards the destination and the maintenance of the children, the step laid down in arts. 1452 onwards shall be observed before the guardianship Court having the matter. Article 1458 - Provision regarding children of spouses separated “defacto” and to illegitimate children - The provisions of art.1452 onwards are equally applicable in deciding the

fate and maintenance of the children effected “defacto”, due to differences or abandonment of conjugal domicile, and of illegitimate children which have been acknowledged, so long as the parents do not arrive at agreement, as to exercise of parental powers or the agreement is not carried out. The provisions shall be taken suo moto, on the application of any of the parent or of the curator of minors through the participation of the immediate relatives of minors, supervising officials, directors of establishments or associations for the protection of childhood and even any authority or member of the public.

Article 1459 - Provisional steps in the case of legal protection to a woman - If a woman

applies for legal protection in anticipation or as in incident for a suit for divorce or for separation of persons and assets, the judge at the time of granting the protection or after the same is granted, shall take provisional measures in respect of minor children, and may hand them over to any of the parents or to another person as may be convenient. Article 1460 - Proceedings for judicial handing over of minor - If a minor abandons his father, tutor or person legally entrusted with his care and education these may apply that the minor be returned to them. The return shall be applied from the guardianship Court in the Judicial division in which the minor is found, and the legal entitlement on which the application is founded shall be proved before the same. The return shall not admit of any opposition unless based on a decision of a Civil Court or a Court of guardianship which prevents the measure or an application for delivery of minor in anticipation of a suit for interdiction of parental power or of guardianship functions. In case there is no objection or the same is not admissible, delivery shall be ordered at which the Judge shall be present. If the curator of minors cannot remain present: § 1: The step of delivery may be preceded by a summary enquiry on the moral and economic situation of the applicant and of the relatives of the minor bound to provide maintenance. If this enquiry demonstrates lack of suitability of one or both the parents when they live together the minors shall be kept in the house of a suitable family, preference shall be given to the closest relative bound to maintain the child; if this is not possible the minor shall be kept in a charitable or educational institution.

When the parents live separately and one of them is suitable, the minor shall be handed over to the said parent.

§ 2: When the minor is delivered, the curator of minors shall file within 15 days if it has been not

filed a proceeding for restraining the parental power or guardianship function. § 3: The provisions of this article and its paragraphs are equally applicable in case the minor is kidnapped or any other manner is found out of the power of the person to whom he has been lawfully entrusted. Article 1461 - Power of the guardianship authorities for the emancipation of minors - The guardianship authority may if they deem convenient decree the emancipation of minors of 18 years of age, if any of the following circumstances obtain; a)If the minors are illegitimate children; b)The children are legitimate but are born of an annulled marriage or their parents are judi- cially separated. Article 1462 - Application for maintenance of minors - Legitimated or recognized minors who are in need of maintenance may apply to the office of the guardianship of children of the area in which they reside by themselves, through the curators of minors, through the Directors of establishment or association of protection of childhood or even through the intervention of any authority or officials of the Court or any person whom the minor is entrusted that maintenance be given to him by the ascendants, brothers or sisters or relatives till the sixth degree. Article 1463 - Requirements of the application - To the application or intimation itself, there shall be attached documents proving the degree of relations between the minor and the persons in respect against whom the application is moved and any others as also the list of witnesses. The documents may be questioned officially by the guardianship office to the competent authorities who will issue the same free of cost when the applicant due to lack of means cannot file the same. Article 1464 - Subsequent stages - The person against whom the application is made shall be notified to within 10 days to oppose the application on penalty of the same being granted against him, and to finish all the evidence that he has and apply for such steps as he deems convenient.

In the case of objections, such steps shall be taken as the Court finds indispensable and thereafter the hearing of arguments and order shall take place to which the provisions relating to summary proceedings shall apply. § Sole Paragraph: In these proceedings holding of enquiry is not necessary. Article 1465 - Steps to be taken in order to render the payment of maintenance effective - When the person against whom the order for payment of maintenance or pension or boarding charges is passed and does not pay the amounts due within 10 days after the same are due, the following shall be observed: a)If he is a public servant the said amount shall be deducted from his salary upon the appli- cation of the relevant guardianship office to the competent authority; b)If he is a private employee or an daily wages, the same shall be deducted from the wages or salaries for which the respective employee shall be notified who shall be deemed to be in the position of a judiciary receiver; c)When it is not possible to obtain payment in the manner indicated an application may be made that the debtor through criminal proceedings may be sentenced to imprisonment of upto 6 months not convertible into fine. Article 1466 - Court with jurisdiction for steps relating to minors - For the measures relating to minors the Court of the place of the residence shall have jurisdiction except where the residence is in the Colony or abroad in which cases the guardianship court of Lisbon shall be jurisdiction. SUB-SECTION II LEGAL MEASURES CONCERNING SPOUSES Article 1467 - Legal protection to woman – A married woman may apply for legal protection as preparatory to a suit for divorce or separation of persons or assets; and may also apply for the same as incidental to any of these suits whether she is a plaintiff or defendant. Legal custody shall always be granted and shall be affected in the house of an honest family which the judge shall choose preferably from amongst the relatives of the woman. She may carry with her clothes and objects of her use.

An official shall affect the formality of custody and shall draw up another record. The judge shall preside over the process if this is requested. Article 1468 - Expiry of custody - A preparatory custody shall expire if the suit is not filed within 15 days; and both this as well as the incidental deposit shall also lapse if the suit is delayed due to negligence of the woman plaintiff for more than 30 days. Upon the lapse of the deposits, only on the basis of subsequent events may another one be applied for.

Article 1469 - Enlistment of movable assets - Independently of the deposit a woman may

request the enlistment of the movable assets of the couple as a step preparatory or as an incident of the suit referred in art.1467. § Sole Paragraph: The judicial custody and the enlistment shall be appended to the respective suit. This matter was earlier dealt under art.20 of the Decree of 3/11/1910 there is related provision in art.393 & 391 of this Code. Article 1470 - Procedure for restoration of conjugal rights - When a woman abandons her husband or refuses to accompany him being bound to do so, he may apply that the woman be judicially handed over to him. The delivery shall be applied in the Court of judicial division where the woman is to be found. Once marriage is proved the process shall take place at the day and time designated place, except for:-

§ 1: If the woman proves by document that suit for separation of persons or assets or divorce is

pending, or has been decreed; all that her judicial custody has been authorized as a preparatory step and the said custody has not yet lapsed. § 2: If she makes an application for judicial custody as an act preparatory to a suit for divorce or separation; In the circumstances mentioned under no.1, the application shall be dismissed; in those mentioned at no.2 the juridical custody shall be ordered. This is the procedure to enforce the substantive rights of the husband under article 1184 and 1186 of the Civil Code of 1867. Later Decree No.1 of 25/12/1910 altered the provisions of art.1186 and art.41 totally prohibited the husband from applying for restitution of conjugal rights. It was restored in 1939 under the present article only in the circumstances mentioned herein.

Article 1471 - Procedure for a wife to compel her husband to receive her - If the husband expels or abandons his wife, she may apply that he shall receive her at home, observing the provisions of the previous articles. The proceeding admits of defense only on the basis of a document proving that divorce or separation of person and assets has been decreed or is pending having been filed by the husband on the ground of adultery. SECTION III DIVISION AND SEPARATION BY MUTUAL CONSENT Article 1472 - Division or separation of persons and assets by mutual consent - May only be applied by spouses married for more than 5 years and who have completed at least 25 years of age. This alters art.35 of the Decree of 3-11-1910 raising the period of marriage from 2 to 5 years to give time to the spouses to experience life in common and seek to adapt to one another. Article 1473 - Requirements of the application - The application signed by both the spouses or their attorneys shall be accompanied by the following documents:- a)Certificate of Registration of Marriage; b)Certificate of age; c)List of assets duly specified; d)Agreement arrived at between them on the custody and destiny of minor children, if any; e)Fixation of the share which each one of them contributes for the upbringing and educa- tion of minor children; f)Certificate of ante nuptial deed and its registration if any; This is based on art.36 of Decree of 3-11-1910. Article 1474 - Judgment of dismissal or summoning of conference - If any of the documents mentioned in the preceding article is missing or on the examination of these it is found that the divorce or separation cannot be granted the application shall be immediately be dismissed. In the contrary case there shall be called a conference of the spouses and their parents also their children who are more than 18 years old.

Personal appearance of the spouses is essential. The Decree of 3-11-1910 was altered to the extent that the parents of the spouses and their children above 18 are called as they are the people who would exercise influence on spouses to change their intention. Article 1475 - Conference. Provisional divorce or provisional separation - At the conference the Judge shall exhort the spouses to give up their intention, calling their attention especially to the undesirable effects of divorce or separation on the future of their children. If the spouses maintain their decision the proceedings of divorce by mutual consent shall be drawn which will be signed by the persons present. The agreement between the spouses shall be granted, authorizing the divorce or separation provisionally for a period of 1 year. This permission suspends the conjugal cohabitation, entitles the wife to apply for listing of movable assets and provisional maintenance and produces immediately in relation to the children the effects mentioned in clauses (d) & (e) of art.1473. § Sole Paragraph: The maintenance shall immediately be sought and after hearing the spouses immediately along with the persons present they shall be fixed in the confirmatory judgment. Article 1476 - New conference, final divorce or separation - After the expiry of 1 year, if the spouses do not apply for a new conference the Court Secretary shall within 30 days shall close the proceedings with the endorsement that the period or separation of provisional divorce is concluded. The spouses, the parents and the children shall be summoned again. If the spouses appear the Judge shall once again try to reconcile them. If he is able to do so, or the spouses have already reconciled, the divorce or provisional separation shall be declared without effect; if it is not possible to reconcile them divorce on final separation shall be decreed. In case both the spouses or one of them do not appear, the provisional divorce or separation shall be of no effect. The judgment, decree and in final divorce or separation shall produce the same effects as if pronounced in a contested proceeding, these effects shall date back in respect of the assets to the date on which the provisional divorce or separation has been authorized. § Sole Paragraph: The spouse who is away from the continent or the island in which the conference regulated by this article takes place may have himself represented with an attorney with specific powers. This settles the doubt under article 40 of decree dated 3-11-1910 as to when would be the course to be adopted when one of the spouses wanted the restoration of the conjugal union and the other insisted on divorce or separation.

SECTION IV CONSENT THROUGH COURT Article 1477 - Consent through Court in cases of refusal - In case judicial consent is sought in cases permitted by law on the basis of refusal, the person refusing shall be summoned to give his say within 10 days. After the summoned person files his objection a date shall be fixed within the next 30 days for deciding, taking such steps as may be found necessary. On the appointed date after hearing the Interested Parties and after producing the evidence admissible the matter shall be decided, the decision being transcribed in the record of the hearing. The witnesses and the documents shall be furnished until 3 days before the date fixed for decision. If there is no objection the Judge shall decide after obtaining the necessary information and clarifications. Obtaining of consent through Court in case another party represents it without sufficient case is a matter which arises under many provisions of the substantive law namely arts.326(1), 327(1), 1119(1), 1128(1), 1191(1), 1193(1), 1216, 1887, 2024, 2237(2), 2237(3) and 2261 of the Civil Code of 1867. Article 1478 - Judicial consent in cases of incapacity or absence - If the ground for application is incapacity or absence at unknown place of the person whose consent is required to be made up, the representative of the interdicted or absent person shall be heard; As also his closest relation and also the interdicted person himself if the interdiction is due to prodigality and the representative of the State. On the face of the pleadings and evidence produced and the clarification which may be obtained the consent shall be judicially made up or refused as may be deemed fit. Article 1479 - Making up of consent by the Family Council - In cases where the family council is entitled to make up the consent the provision of article 1490 onwards shall be observed. SECTION V ALIENATION OR LONG LEASE OF DOWRY ASSETS Article 1480 - Petition for alienation of dowry assets and for making up of the consent - Judicial permission for alienation or granting of perpetual lease of dowry assets may be sought by

the wife in all cases in which the law permits alienation and may also be sought by husband in the cases mentioned in sub-clauses of 2 & 4 of art.1149 of the Civil Code. In the petition the purpose of the alienation and the reasons justifying it shall be specified attaching the documents which prove the consent of the other spouse. If the latter refuses his consent or in interdicted or absent at unknown place there shall be attached to the application for judicial permission, an application for judicially making up the consent. Article 1481 - Subsequent steps - The decision shall be taken after hearing the person who gave the dowry, the children of the applicant and his presumptive heirs in the absence of children and after effecting the procedures and enquiries which are necessary. In case there are minor children or interdicted persons the family council and the State representatives shall also be heard. If the spouse has refused consent the provision of art.1477 shall be followed after hearing the persons and entities mentioned there. Article 1482 - Alienation for maintenance of family - Alienation based on art. 1149(2) of the Civil Code may only be authorized for the maintenance of the spouses or their descendants or ascendants who reside with them and who on account of their age or illness cannot earn the means of subsistence. The need for maintenance shall not be taken to be justified without proving: 1)Total absence of other assets; 2)Total impossibility of providing for the indispensable maintenance with the income of the dowry; 3)Impossible for the husband to acquire the assets as a result of advanced age or illness which does not permit him to work. § 1: Impossibility to work may be proved only by way of examination § 2: Only the absolutely indispensable amount shall be allotted for maintenance.

Article 1483 - Need for inspection and registration of encumbrance in certain cases - In

cases under clause 4 & 5 of article 1149 of the Civil Code the alienation shall not be authorized unless preceded by an inspection; and in the case of no.6 of the said article the registration of the

encumbrance of dowry shall not be cancelled unless the said encumbrance on the assets offered in subrogation is registered or endorsed. Article 1484 - Types of sale or emphyteutic lease - The sale or emphyteutic lease of assets shall take place in any of the ways indicated in art.1883 as may be decided after hearing the Interested Parties. The public funds and shares or liabilities quoted in the stock market shall be sold for the price which shall not be less to the one which the Judge fixes according to the latest quotations. After the sale is agreed the buyer shall deposit the price and the judge after canceling the encumbrance by way of dowry shall record in the title of records the ownership in favour of the purchaser. Article 1485 - Disposal of the produce - If the produce or part hereof is meant to establish any son, the latter shall receive the same directly by document the amount awarded for this purpose. If the alienation is authorized for dowry or for acquiring other assets in place of those alienated the produce shall be invested in immovable assets or public securities certificates, the price of the said assets being delivered to the vendors by document drawn in the proceedings. If the alienation is for the purpose of reparation of other dowry assets, the reparation shall be auctioned following the procedure of judicial sales and the auctioneer shall receive directly the price by document in the proceeding verified by means of inspection wit the intervention of the interested parties that the work is completed on the terms agreed. If the alienation is for maintenance of family the produce shall be deposited and the husband authorized to withdraw monthly from this deposit the amount which is awarded. If the assets are alienated for payment of debts the part of the produce corresponding to the debts shall be handed over to directly to the creditors by record in the proceedings.

Article 1486 - Investment of excess portion - The portion of the proceeds which do not come under clauses nos. 1 to 4 of Art.1149 of the Civil Code shall be invested in immobile assets or registered government securities the price being directly paid to the vendor, by a written record in the proceedings after registering or endorsing the encumbrance on the dowry. The same shall be observed as to the totality of the produce in the cases coming under clauses nos. 5 and 6 of the above mentioned Article.

Article 1487 - Investment of the return in the case of acquisition - If the assets are acquired for public or private purpose the compensation shall be invested in terms of the proceeding article the investment being made in the proceedings of acquisition. When it is necessary to invest a part of the produce for the repairs of the remaining part of the acquired property the provisions of the 3 rd clause of Art.1385 shall be observed in the fact of this part, and the investment shall be made in respect of the excess portion. SECTION VI SALE, EMPHYTEUTIC LEASE OR CREATION OF ENCUMBRANCE ON ASSETS BELONGING TO LEGALLY DISABLED OR ABSENTEE PERSON Article 1488 - Judicial permission for sale, emphyteutic lease or creation of encumbrance on

assets of legally disabled person - When it is necessary to sell, give on emphyteutic lease,

mortgage or any other way bind the assets of a minor or interdicted person and the act, is subject to judicial permission, the same shall be sought by an application, setting out the reasons for the transactions and furnishing along with the evidence; The permission shall be granted or refusal after hearing the relatives of the legally disabled persons or other suitable persons which may be convenient to be heard and after taking suitable measures, hearing of the government pleader and of the owner of assets himself when he is more than 14 years of age or interdicted for prodigality being compulsory. § Sole paragraph: The application shall be part of the inventory proceeding if there is one or the proceedings for the interdiction. This provision is the remedy for the substantive provisions of Art.150 and Art.322 of the Civil Code of 1867 that is to obtain judicial permission for sale, emphyteutic lease, mortgage or creation of any charge or assets of minors of interdicted persons. To be more precise with the use of these special proceedings the following may be noted:

a.Minors may be subject to

(i)Parental power – Art 150 of Civil Code Parents require permission under Art.1488. The purpose is to find whether the alienation or the creations of encumbrance is for urgent necessity or clear benefit to the minor. The judge will ascertain this and grant or refuse permission accordingly. (ii)In the case of guardianship it is the family council and not the judge which authorizes the guardian to sell or mort- gage the assets of the ward (Civil Code Art.224(13) and 224(16). Here therefore proceeding under article 1488 are not required. The permission is obtained by seeking the convening of the family council in term of Art.1490 onwards for the purpose of deliberately on the issue.

b.Persons interdicted for lunacy or for being deaf and dumb. Here there are two possibilities:

1. (i)Guardianship is exercised by father or mother;
2. (ii)Guardianship is exercised by other persons. In the first case the parents have to seek permission to exercise their paternal power granted to them u/Art. 322 of the Civil Code, by seeking judicial permission u/Art. 1488 of Portuguese Civil Procedure Code. The need for judicial permission is laid down in Article 150 of the Civil Code. In the second case Art.1488 has no application because the system applicable to guardianship operates and for this reason the guardian has to seek permission from the family council through the procedure mentioned in Art. 1490. Whatever has been stated in the respect of interdiction of lunacy applies for also interdiction for being deaf and dumb (Civil Code Art.339) c.Interdiction for prodigality In the Civil Code there is no specific provision expressly laying down the need for permissions to sell or mortgage the assets of a prodigal person. But it is evident that curators or administrators of the person interdicted for prodigality cannot carry out these acts without permission either form the judge or from the family council, because it would be absurd that these persons would be in a better position than the parents and guardians therefore the question is whether the permission is to be sought from the Judge or the family council. The earlier Portuguese Civil Procedure Code (Art.657, 658) provided that judicial permission was required. The same is the case today. Art.351 of the Civil Code attributes to the administration of the assets of the prodigals the same rights and obligations as possessed by the provisional curators of the assets of an absentee person. Now such provisional curators can only exercise purely administrative powers (Civil Code Art.59) in the case of acts which exceed the administrative function they will obtain permission; and this can be given only by the judge since there is no family council functioning along with the curator of the absentee person. This conclusion is also supported by making an analogy with the case of final curatorship (Civil Code Art.76). Otherwise also provisional or final curators of assets of the absentee person have to obtain permission of the judge by the procedure laid in Art.1488, this being clearly laid down in Art.1489. It has to be therefore taken to be very clear that the curators of the prodigal person require judicial permission by the procedure laid down in Art.1488 for the sale and emphyteutic lease, mortgage or creation of any encumbrance on the assets under their administration. Article 1489 - Sale emphyteutic lease and creation of encumbrance on assets of the absentee- The provisions of the preceding articles are also applicable to the sale, encumbrance, mortgage or creation of any other encumbrances on movable or immovable assets of an absentee person when provisional or final curatorship has been granted and the act is justified to prevent deterioration or deduction of the assets, payment of debts, to meet the cost of necessary or useful improvements or to meet any other urgent need. SECTION VII COUNCIL OF THE FAMILY AND FOR GUARDIANSHIP Article 1490 - Requirement for constitution and convening for family council - If it becomes necessary to convene the family council to authorize any act, make good the consent or deliberate on matter within that powers, the application shall indicate the purpose of convening it and the reasons for the requirements, naming straight away the person who should constitute the council if it has not yet been constituted. The judge shall hear the government pleader on formation of the council and may solicit the information which he thinks necessary. Even after the council is constituted any relative who ought to have had preference may demand his appointment in place of a member already appointed and the replacement may be applied for by the person who is interested in having the council duly constituted. § Sole paragraph: The application shall be annexed to the inventory proceedings when there is one. The attributes of the family council are mentioned in a general manner in Art.224 of the Civil Code. Originally the entire matter was dealt with under Arts.217 to 219 of the Civil Code of 1867 but these provisions though sufficient in respect of the constitution of the family council, did not sufficiently regulate its function. Accordingly in the Civil Procedure Code of 1939 new matter has been included under Art.1490 onwards as follows:- o(i) Constitution of the family council – Art.1490, (ii) It’s functioning – Arts.1491-1494, (iii) Appeal from the deliberations – Art.1495, (iv) Constitution of guardianship council – Art.1496, (v) Functioning of the said council – Arts.1497-1498, (vi) Appeal from the deliberations of the guardianship councils – Art.1499 oAs for Art.1490 it is general in scope whenever a council has to be constituted whatever may be its purpose, this is the provision that has to be followed. No doubt the provision of Art.207-209 of the Civil Code continue in force since Art.1490 does not indicate the persons who will constitute the council. The provision of Art.1490(3), are in conformity of the paragraph 3 of Art.307 of the Civil Code. It deals with the reconstitution of the council after it is constituted. Regarding the functioning, the second para of Art.1494 specifically adverts that Art.1493 and 1494 do not apply to the decisions which, pertain to the family council in orphanological inventory in Art.1392 onwards nor to the cases foreseen by Arts.1019 and 1442. They also don’t apply, though there is no specific mention to the functioning of the council in proceedings of the interdiction; because in such proceedings the council doesn’t decide but only issues an opinion and Arts.1493 and 1494 regulate the manner in which the council takes decisions. Art.1495 is general in application. It applies even in the cases covered by Arts.7392 onwards, Art.1019 and Art.1442. Once the family council takes a decision an appeal from the decision lies to the Tutorship Council in terms of Art.226 of the Civil Code; oArticle 1495 does not confine the appeal to the subject matter of the deliberations of the decisions, it is limited to the question of valuation only. As it amounts to a real appeal the time limits and other requirement laid down in Arts.677 -690, with the exception of Art.689, have to be observed, because clause 2 of Art.1495 specifically declares that a further appeal lies to the high court from an order refusing to admit the appeal. This appeal is not specifically mentioned in Art.677 because it is not an appeal from a judicial division as such. oArticle 1496-1499 apply to all cases of appeals to the guardianship council. Art.1496 alters the constitution of the guardianship council; instead of the Civil Judge and 2 substitutes it is now constituted by the guardianship Court. Article 1491 - Summoning of the Council - Once the Council is constituted it shall be summoned to deliberate the members in the notice being notified of the main purpose for which they are being summoned. The order of summons shall be notified to the government pleader to the minors of more than 14 years. To those interdicted for prodigality and the respective representatives and any other persons who may be interested in the decisions of the council. The personal appearance of the members of council, of the government pleader and the representatives of the legally disabled persons is compulsory. Article 1492 – Chairmanship - The judge presides over the family council without right to vote. Article 1493 - Functioning of the council - On the date appointed for deliberations, at least three members of the council being present, the initial application shall be read and the applicant or his representative shall be allowed to speak and make a brief exposition meant to justify the content of the application and produce any evidence. Thereafter any interested party may speak, opposing the application whether he has been summoned or has appeared on his own. The opponent may also produce any evidence. Thereafter the government pleader and the representative of the legally disabled persons shall be heard. At the end the council shall retire along with the judge to the conference hall and there shall take its decision by absolute majority of the members present. The decision shall thereafter be inserted in the record of the proceedings. Corresponds to Section 110 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1494 - Steps to be taken in case measures are necessary - If the council does not find itself able to decide in the light of the allegations and evidence produced it shall indicate the measures and classification which it thinks necessary. These measures being promptly taken and classification obtained the council shall deliberate on the day fixed or designated, the space between the first and the second meeting being not more than 15 days. § 1: If the day of the second meeting is immediately fixed, the members of the council who have remained absent shall be notified. For the second meeting only those persons which the council wants to hear and specifically indicates shall be summoned. § 2: The provisions of this article and the previous one shall not apply to the decision which the family council is competent to take in orphonological inventories, in terms of Art.1392 onwards, nor to the cases foreseen by Arts.1019 and 1442. Corresponds to Section 111 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012.

Article 1495 - Appeal from decision - From the decisions of the family council when the

valuation exceeds the pecuniary limits of the Civil Code of the judicial division, appeal may be filed to the guardianship council. The appeal may be filed before the judge who has presided over the council, a further appeal shall lie to the High Court from the order refusing to admit the appeal. The appeal shall operate as stay unless the judge finals it necessary to immediately the decision of the family council. Corresponds to Section 112 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1496 - Constitution of the Guardianship council - The guardianship is constituted by the code of guardianship of children in the respective judicial division. Corresponds to Sections 106 and 113 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1497 - Procedure in appeal - Upon the appeal being filed the file shall be immediately placed before the president of the guardianship court if he is not the same judge who has forwarded the appeal memo. Interested parties may within 8 days submit documents, apply for any steps or file return pleadings. The president of the Tribunal after directing the enquiries and steps which he deems necessary shall fix the day for hearing which should be within 30 days following the 8 days mentioned in the proceeding clause. Corresponds to Sections 106 and 114 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1498 - Hearing of the appeal - Once the council is constituted the applicant may submit before it a brief oral submission in support of the grounds of the appeal and submits any proof. Whoever is interested that the decision of the family council has to be maintained shall be permitted to reply and produce evidence. If there are many interested parties they shall all be represented by a single attorney. Thereafter the government pleader shall be heard and thereafter the council shall deliberate in conference its decision being transcribed in the record. Corresponds to Section 115 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012.

Article 1499 - Appeal from guardianship council - From the deliberation of the guardianship confirming that of the family council no further appeal lies; if it revokes the same an appeal may be filed in the High Court. SECTION VIII VERIFICATION OF PREGNANCY Article 1500 - Procedure for verification of pregnancy - Whenever for any purpose a woman requires verification as to whether she is pregnant or not she shall apply for an examination mentioning therein a physician. The government pleader shall have opportunity with 48 hours to indicate another physician and the judge shall appoint a third one for breaking the tie. After the procedure is carried out the applicant may have her say within three days; the proceedings shall be submitted for the same period to the government pleader who may make his observations and thereafter order shall be passed taking as verified the condition of the applicant according to the replies of the three experts or majority of them if they are precise or conclusive. Corresponds to Section 117 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012.

Article 1501 - Intervention of Medico Legal Council - If the condition of the applicant cannot

be ascertained by reason of the replies of the physician being doubtful she may apply that the examination be carried out by the Medico Legal Council of the said circumscription. In such case the file shall be forwarded to the council who will examine the applicant and give its opinion. Upon the file being returned with the opinion, judgment shall be pronounced in accordance with the findings of the council. Corresponds to Section 118 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. SECTION IX PROTECTIVE MEASURES AND PROVISIONAL CURATORSHIP OF THE ASSETS OF THE ABSENTEE

Article 1502 - Preventive measures - If on account of absence of the owner or by reason of the

inheritance being in ambiance or for other reason there are assets lying abandoned and if it is

necessary to take precautionary measures against lost or deterioration they shall be recovered judicially, through enlistment and deposit. These measures may be ordered suo moto or on the applicant of the government pleader or of any

interested party. If they are applied for the judge may demand evidence and obtain such

information which he may think necessary. Articles 1502 to 1506 – Protection of absentee are also peculiar to this Code. Article 1503 - Provisional curatorship - Where provisional curatorship is sought in respect of the assets of an absentee person the need for the measure shall be shown and the presumed heirs of the absentee shall be indicated and in their absence the persons who have interest in the preservation of the assets. The absentee shall be notified by notices of 30 days; and after hearing the government pleader when he is not the applicant as well as the partner’s or possessors of the assets, after production of evidence and obtaining such information as may be considered necessary the curatorship shall be granted or not. § Sole paragraph: If there is more than one presumed heir, or in his absence more than one person interested in the preservation of the assets of the absentee the more suitable one from amongst them shall be chosen as the curator. Corresponds to Section 119 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. Article 1504 - Publication of judgment - The judgment granting curatorship shall be published by public notice affixed on the door of the house of the village administrator in the parish of the last residence of the absentee and by notice in the newspaper, reference to by Art.945. The notice in the announcement shall contain only the name of the absentee and the designation of the curator who has been appointed for him.

Article 1505 - Enlistment and security - The curator shall take charge of the assets through

enlistment and after furnishing security. The suitability of the security shall be dealt with in the proceedings of curatorship after hearing the government pleader and taking the necessary measures.

Article 1506 - Cessation of curatorship - If the absentee returns and the curator refuses to

handover the assets the provisions of Arts.1115 shall be observed. § Sole paragraph: As soon as the court comes to know about the absentee and the place where he resides, he shall be officially notified that the assets are in provisional curatorship and the curatorship shall continue until he takes measures. This is connected with Art. 63(1) of the Civil Code. Corresponds to Section 121 of the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012. SECTION X JUDICIAL LEASES Article 1507 - Procedure for lease of share - When any co-holder desires that the property be leased in public auction he shall apply that the possessor and other co-holders be notified to within 5 days oppose the application or declare whether they agree to the lease. If there is opposition the matter shall be decided after the necessary steps. In the absence of opposition or when the same is rejected the day for the lease shall be designated if the majority of the interested parties, agree to the request. It is presumed that the co-holders which remains ex- parte give their consent. Article 1508 - Form of lease - The provisions which regulate judicial sale are applicable to lease to the extent to which they are applicable. Article 1509 - Request for improvements - In the 10 days following the sale the possessor may raise in the same proceeding a claim for any improvements made by him from which they increase in rent errors. After notifying the co-holder to file their objections, the terms of an

ordinary suit, summary or very summary proceedings shall be followed depending on the

valuation. The procedure in Arts.1507-1509 is for enforcing the right given by Art.2191 of the Civil Code to the co-holders to demand the lease of their share. Article 1510 - Applicability to lease or common assets - What is mentioned in this Section is equally applicable to the lease of common assets, all the co-owners being notified; and any of them may ask for the value of the improvements to which he is entitled.

This is related to Art.2179 of the Civil Code. SECTION XI NOTICE FOR PRE-EMPTION Article 1511 - Procedure for giving notice of pre-emption or preference - If it is desired that anybody should be notified to exercise if he so desires the right of preference there shall be specified in the application the price and the conditions of the agreement and it shall be prayed that the person be notified to declare within 8 days if he or she wants to exercise the rights of preference. After carrying out the procedure the application and the certificate shall be handover by the clerk in the court office. In case the person summoned desires to exercise the rights of preference he shall so state to the

head of the court office, who shall draw up the necessary written record pursuant to the

certificate, if it is within time. In the case of refusal or doubts on the part of the head of the Court office, the interested party may apply to the judge to have the written record drawn up. After the record is made, the person seeking to exercise preference shall lose his right if within 20 days he does not execute the respective deed or does not apply that the opposite party be notified to receive the price in the office on the day and time designated by the judge, on penalty of being deposited. If afterwards the person exercising right of preference does not deliver or deposit the price he shall similarly lose the right besides being subject to liability for losses and damages. § Sole paragraph: Upon the price being paid or deposited the assets shall be adjudicated in the favour of the person exercising right of preference. Articles 1511-1518 – Preemption is peculiar law. The Civil Code recognises the right of preference or pre-emption in the following cases:- oAmongst co-owners, Art.1566 oOwner and holder (lessee) on emphyteusis, Art.1678 & 1704 oCession with reservation Art.1708 to the possessor or co-holder 2-1-95 oDominant and servient owner in the case of easement, Art.2309(1). oOwners and lessees of commercial establishments, Art.9 & 11 of Law nos.1662 of 4-9-1924. Article 1511 applies where an independent notice of preference is sought. However where other judicial proceedings are pending like execution, bankruptcy or insolvency the procedural provisions relating to the same provide for a notice of preference. Article 1512 - Notice where the right of preference is available simultaneously to various persons - If the right of preference is available to various persons simultaneously, all shall be

notified to appear in the court on the day and the time designated to effect the licitation among them. The result of the licitation shall be recorded in a written record in which the highest bid of each participant will be recorded. To the participant who has offered the highest bid the provisions of the preceding sections shall apply in the matter of losing the right of preference. § Sole paragraph: If the participant in licitation neither pays nor deposits the price within the time, the right of preference shall devolve upon the interested party who has offered the next highest bid and so on successively, but the time for payment or deposit in the case of each of these interested parties, shall stand reduced to 8 days. As each of the participants in the licitations goes on losing his right the applicant for the notice of preference shall inform the fact by means of a new notification, to the next participant. In the event of devolution of right of preference in terms of this paragraph the participants in the licitation incur no liability if they don’t maintain their beat and do not want to exercise their right. A case of this nature could arise for example: -when the owner of a land locked property has an easement of passage through various properties. In such case if the owner of the land locked property desires to sell the same he shall offer a right of preference to the various servient owners (Civil Code Art.2309(3)). It could also happen u/Art.1566 of the Civil Code, where the co-owners are many and have equal rights. Article 1513 - Notification in case of right of preference in various persons successively - If various persons successively have right of preference they may all be notified to declare whether they intend to avail of the said right incase it comes to belong to them or the notification may be made to each one as and when his turn comes as a result of the remuneration or loss of right by the previous interested party. In the first case the person to whom the right of preference belongs in the second place shall have to pay or deposit the price within 20 days after the expiry of the period in which the first one was entitled to exercise his right of preference and so on successively except if the 20 days end before the next preferring party is notified, or before 20 days have expired form the notice. Because in such cases the person exercising right of preference may always effect the payment or the deposit in the 20 days following the notice to him. But if any of the interested parties declares that he wants to exercise preference and thereafter fails to effect the payment and deposit within time this fact shall be brought to the knowledge of the next person entitled to preference by means of a fresh notice and the said next preferring party

shall pay the price within 8 days. In the case of Art.1512 the right is equal and simultaneous but in case of Art.1513, the right of preference arises in a hierarchal manner. All are not in a same position, the right of some of the parties arises before that of others. An example of this is Art.2195(1) of the Civil Code where in , if a co-holder wants to sell the right of preference in first place goes to the possessor and thereafter to the other co-holder. Similarly u/Art.1566 of the Civil Code the person having the bigger share has the first right of preference and the one with the next share has the second one and so on. Article 1514 - Notification in case of assets belonging to the inheritance - If the assets belong to the inheritance the administrator shall be notified except if they have already been auctioned or have been included in any of the shares in which case only the respective party shall be notified. The administrator as soon as he is notified shall apply for the conference parties, to decide whether the estate should exercise the right of preference. In case there are legally disabled persons who are not represented by their parents, the family council shall also participate in the conference. If the estate does not exercise right of preference, any of the heirs exercise the right within the same time, independently of any other notice. § Sole paragraph: In case more than one heir comes forward to exercise his right of preference, the priority shall be determined by the greatest size of the shares; in case the payment or deposit is not made within time the provisions in the last part of the preceding article shall be applicable. If the shares are equal, auction shall follow in terms of Art.1512. This article deals with a case in which the right of preference vests on an undivided estate or inheritance. Suppose an owner of a property on emphyteusis wants to sell it, he has to offer the right of preference to the partner in emphyteusis, but the partner is dead and his estate is undivided or suppose the owner of a land locked property wants to sell it but the servient heritage is part of an undivided heritance or even one co-owner is dead and his share is part of an inheritance. All these are cases covered by Art.1514. In the conference of interested parties, mentioned in this section it is the interested parties and not the administrator who will decide whether the estate will exercise right of preference or not. If the conference does not take place or does not take a decision it is taken that the estate is not exercising its right of preference and the heirs will be free to exercise their right individually.

Article 1515 - Notice in case of assets belonging to spouses - If the assets belong in common to

the spouses the husband shall be notified; but incase he does not desire to exercise his right of preference the same may be exercised by the wife, if there is pending or decided a suit for divorce, separation of persons or assets or only for separation of assets in which case she shall be notified.

Article 1516 - Notice in case of assets being joint - If the assets are in joint ownership of

various persons all the co-owners shall be notified. If more than one comes forward to exercise the right of preference the provisions of Art.1514 sole paragraph shall be observed. Article 1517 - Disposal of records - If none of those notified comes forward to exercise right of preference the application and certificate of steps taken shall be handed over to the applicant. In the contrary case the papers shall be filed in the court office, for the interested parties to be able to inspect the same and obtain the certificates which they may need. Documents attached to the application are excepted and shall be handed over to the applicant as soon as the proceeding of notification are over without keeping any extract. Article 1518 - Costs - Costs shall be paid by the applicant except in the case of auction, in which case the cost shall be paid by the bidder who offers the highest bid. If the notified person having made the declaration referred to in Art.1511, fails to execute the deed or pay or deposit the price within the time he shall be bound to pay all the costs. When various interested parties commit this default all the costs shall be paid by the one who defaulted first. SECTION XII ESTATE IN ABEYANCE Article 1519 - Procedure to ascertain whether the heirs accept or renounce the inheritance - Upon an inheritance being open, if the heirs being known do not express or tacitly accept it, the government pleader, any interested party or creditor may apply to the court of the place where the inheritance has opened. To notify within 30 days to declare whether they accept or repudiate the inheritance. Any declaration shall be drawn into a written record, this being done in the case of repudiation in the appropriate book. In the absence of declaration the inheritance shall be taken to have been accepted. Articles 1519-1522 – Estate in Abeyance This corresponds to Art.201 of the Civil Code. Article 1520 - Notice to heirs next after the persons relinquishing - If those notified repudiate the inheritance, the known heirs next after them shall be successively notified until there is no one who has a preferential right of succession over the state. Vide Art.1969 of the Civil Code. If there are no other heirs the state gets the right vide Art.1969(6).

Article 1521 - Acceptance of inheritance by the creditors for payment of debts - If the

creditors of the heir who has repudiated the inheritance desire to accept the inheritance inorder to be paid form the assets thereof in terms of Art.2040 of the Civil Code, they shall so declare within a period of 20 days counting from the date of which they become aware of the repudiation. Upon this declaration being made the creditor shall make out by proper means the claim for their credit against the person who has repudiated and against those to whom the assets have passed on as result of the repudiation. After obtaining favourable judgment, they may execute the same against the estate.

Article 1522 - Appointment for curator for the inheritance - When the inheritance held in

ambiance requires a curator, the same shall be appointed suo moto or on the application of any legatee, creditor or interested party in which there is someone who can represent the inheritance in the court. The powers of the curator shall cease as soon as the inheritance is accepted or declared vacant. SECTION XIII EXECUTORSHIP

Article 1523 – Appointment of Executor - Where the judge is empowered to appoint an

executor, for the will in terms of Arts.1839 and 1893 of the Civil Code. Any interested party may apply for the same. After identifying the other interested parties and specifying if he so desires the one who in his view is in the best conditions to discharge the role. After hearing the other interested party and their representatives the appointment shall be made. Articles 1523-1530 – Executorship oAre all part of Succession Law.

Article 1524 - Exemption of the executor - The executor who desires to resign after having

accepted the charge should seek exemption after giving a justifiable reason. A legitimate reason for exercising is a subsequent impossibility on account of sickness, prolonged absence or incompatibly with the exercise of any public office. The exemption shall be granted or refused after hearing the interested parties and collecting the required evidence and information. This relates to Art.1891 of the Civil Code. Before accepting the post the executor may excuse himself, but at that point it is

not for the judge to permit the same. This situation is foreseen by Art.1590 of the Civil Code. The judge comes into the picture only when the executor desires to quit after he is appointed. Article 1525 - Removal of the Executor - The interested party who desires the removal of the executor shall state the facts which justify his application and shall furnish the evidence along with. The opposite party shall be notified to reply and submit evidence. After the indispensable evidence and hearing the other parties if necessary the matter shall be decided. This provision is for implementing Article 1909 of the Civil Code. Article 1526 - Procedure for inspection of the Will - An interested party who desires to inspect the Will, or obtain a copy of the same may request that the executor produces the same in the court for this purpose. The executor shall be notified to produce the will within specified time; If the notified person does not do so nor proves good reason he shall be removed from the executorship. This regulates the exercise of the right given to interested parties by Art.1899(4) of the Civil Code. Article 1527 - Appendage to inventory - The applications mentioned in the preceding article shall be annexed to the inventories when there is one. SECTION XIV SALE OF ASSETS BY THE EXECUTOR Article 1528 - Petition of sale of assets by the executor - If the executor desires to carry out the sale of assets in terms of Art.1898 of the Civil Code, he shall present the account of the expenses made or to be made and request that the heirs be notified to furnish within 20 days the necessary means, or dispute the expenses or designate the assets which will be sold. § Sole paragraph: This prayer shall be annexed to the inventory if there is one. This provision is for exercising the right granted u/Art.1898 of the Civil Code, where by the executor can sell assets to meet the expenses of the executorship when in the inheritance there is no money and the heirs do not or cannot advance the same. Article 1529 - Steps to be followed in case of opposition - If the heirs dispute the expenses this

shall be resolved after hearing the executor or obtaining the classifications and the evidence which may be thought necessary. But at the request of the executor it may be ordered that the opponents deposit immediately the amount indispensable for satisfaction of the urgent debts authorized by law on pain of the opposition being rendered ineffective. After the amount is deposited the executor may withdraw the same before the final order if he furnishes security. Article 1530 - Procedure in absence of opposition - If the heir neither oppose the expenses nor specify the assets those indicated by the executor shall be sold. If there is no agreement amongst the heir as to the specifying of assets or if the income from the sale is insufficient, other assets which may be necessary shall be specified in the order laid down in Art.2151 of the Civil Code. § Sole paragraph: The sale shall be done in the manner indicated by the judge. SECTION XV EXERCISE OF THE RIGHT OF THE SHAREHOLDERS OF THE COMPANY SUB-SECTION I JUDICIAL INQUIRIES

Article 1531 - Procedure for ordering inquiry - The share holders who propose to initiate

investigation through Court of the books and documents, accounts and papers of the company, whenever the law permits, shall set out the grounds and purpose of the investigation. Summons shall be issued to the Administrator or management of the company to give their say. In absence of reply, investigation shall be ordered; and also in case of reply, if it is found that there is a ground to proceed with an investigation. Articles 1531-1554 – Right of shareholders of companies are subject matter of the Companies Act. Note: The word “Society” means “Company”. Portuguese Commercial Code Article 149; law dated 11.04.1901, article 46 para 5. Department’s clarification - As regards the extension of the Companies Act to Goa, Daman and Diu, the following information is given in the Annual Report submitted to Parliament under section 638: “It was decided in consultation with the Goa Administration that For Quota Societies formed under the Portuguese Laws should be given an opportunity to be incorporated as Companies under the Companies Act. Upon such incorporation such a society should be deemed to be a company under the said Act with effect from the date of its formation under the Portuguese Commercial Code, as if the

Companies Act had been in force on the date of its formation under the Portuguese Commercial Code, as if the Companies Act had been in force on the date of its formation under that Code. To achieve this purpose, a Notification was issued under section 620-B of the Companies Act (as extended to Goa) amending section 34 of the Companies Act in its application to Goa, Daman and Diu. The said Notification gave the benefit of continuity of existence to for Quota Societies, provided they registered themselves as companies under the Companies Act on or before the 18 th March, 1965. The time limit was later extended to the 30 th June, 1965, at the instance of the interests concerned. By another Notification, such Par Quota Societies as registered themselves as companies within the aforesaid period were given exemption from the initial payment of registration fee, and fees in respect of filing the documents required to be filed at the time of registration. Till 30 th June 1965, 21 Por Quotas Societies have been registered as private companies." (Ninth Annual Report, dated 5 th August, 1965, page 3). Article 1532 – Procedure in inquiry - Whenever investigation is ordered, the court shall fix the points for determination which the investigation should include, after hearing the petitioners and the management of the company, if the same has not remained ex-parte. Also experts shall be appointed to take up the investigation following whatever has been provided in the matter of examination. Article 1533 – Preventive measures - As a consequence of the investigation the court may, if any, application made order interim measures which may be necessary to secure rights of shareholders and of creditors. Article 1534 – Right to apply for inquiry at the stage inquiry in extra judicial liquidation - The investigation may be ordered at the stage of liquidation of the company outside the court. Article 1535 – Regime of costs - As to the costs, the following shall be observed: a) If the result of the investigation does not confirm the suspicions of the applicants, they will be liable to pay the costs; and they also will be liable to pay the expenses which to be incurred with the publication of report and of the conclusions of the experts or only conclusion alone, in the event the board administrator and management of the company demands such publication; b) As a consequence of the investigation, if any, temporary measures have been issued meant to secure the share holders and creditors, the liability to the cost is cast upon the board administrator and management of the company; c) If as a consequence of the investigation any suit has been instituted whoever has been directed

to pay the costs of the suit shall pay also the costs of the investigation, which shall be

provisionally awarded to the applicant, except in the case foreseen in the previous clause. SUB-SECTION II REMOVAL OF THE ADMINISTRATOR Article 1536 – Only Court to withdraw powers of administrator - Whenever the management of the company is entrusted to one shareholder alone as per the special clause in the contract which cannot be revoked without legitimate cause, in accordance with sole paragraph of article 1266 of the Civil Code and of sole paragraph of article 155 of the Commercial Code, the administrator shall not be deprived of his powers, until the court has ordered that there is a ground for his removal. Article 1537 – Procedure to withdraw powers - Any shareholder may seek removal, pleading the facts which justify the removal and presenting immediately the proofs. The delinquent shall be summoned to reply and lead his evidence if any. After evidence is led and all the clarifications having been obtained, the question shall be decided. SUB-SECTION III CONVENING THE MEETING AND ASSEMBLY OF THE SHARE HOLDERS Article 1538 – Procedure for convening of general body or meetings of members - Whenever, in any company, there has not been convened the general ordinary assembly or extraordinary or the meeting of the shareholders, or when by any reason there is a obstacle to hold such meetings or its functioning, the applicant may apply to the court either to convene the meeting or authorize the applicant to do so. As soon as the document of the constitution of the company is produced, the court shall resolve within 5 days, after hearing the management of the company, when it found convenient and undertaking the inquiry which is found necessary. If the application is granted, the court shall designate, among the share holders the person who shall act as a president and direct the steps which may be indispensable for holding the meeting or assembly. The court may appoint also as a president a Government servant of higher category if there is

strong reason not to make selection amongst the shareholders. Commercial Code article 180, sole paragraph; law no. 11.4. 1901 article 37. Paragraph 2 and 3. SUB-SECTION IV REDUCTION OF CAPITAL OF THE COMPANY

Article 1539 –Requirements of application - The commercial company which proposes to

reduce its capital, shall present to the court with the project of the reduction provisionally registered, or document which proves the agreement of all the creditors, or the inventory and balance sheet from which it is found that the balance of the effective capital exceeds 1/3"1 of the debts of the company. If the court holds existence of such requirement proved, shall direct that resolution of the company be published. Commercial Code article 116 sole paragraph. Article 1540 – Objection - Within 30 days following the publication, any member, share holder or dissenting creditor may oppose the reduction, justifying his locus standi and by way of paragraph wise objections raise grounds of his objections and apply that the resolution be stayed.

Article 1541 – Decision - After all the objections are brought in to the file, the court shall

ascertain if the locus standi of the opponent is tenable and shall reject the objections raised by opponents who have no locus standi. If any objection is to be considered, the deliberation shall be stayed and notified to the management of the company, to reply within 10 days, and thereafter the procedure of summary proceedings shall be followed subsequent to the written statement. § Sole Paragraph: The registry shall certify that the deliberation is suspended and shall remit the certified copy to the conservator in order that he makes the endorsement of the suspension at the margin of provisional registration of the deliberation. SUB-SECTION V ENDORSEMENT, CONVERSION AND DEPOSIT OF THE SHARES AND OBLIGATIONS

Article 1542 – Right to apply for endorsement on shares or liabilities - If the management of the company fails to carry out within 10 days the endorsement of the shares and liabilities which have been produced for this purpose or does not issue, within the same period, a precautionary measure with the declaration, that the documents are in condition of being endorsed, the interested party may apply to the court of the registered office of the company for a direction to make the endorsement. § Sole paragraph: The precautionary measure referred to in this article shall have same value as the making of an endorsement. Article 1543 – Initial petition and subsequent steps - The share holder or bond holder shall formulate the prayers with grounds and apply that the management of the company be summoned to contest within 5 days, failing which direction will be issued to carry out the endorsement. If the company contests, the applicant may reply within next 3 days. No other evidence other than by way of document shall be admitted and the judgment will be passed within a period of 5 days after the reply. Article 1544 - Execution – When endorsement has been finally directed, the interested party may apply for service on the management of the company to carry out the decision within 3 days. Failing compliance, the judicial decision shall be noted in the title deeds, which shall for all purposes have same value as an endorsement and the administrator shall be liable to penalty corresponding to the offence of aggravated disobedience, without prejudice to payment of the damages caused. Those who refuse to recognize the judicial decision shall incur in the same liability. § 1: The effects of the endorsement directed by the court, retroacts to the date on which the title deeds were presented to the management of the company; § 2: The title deeds and the documents shall be delivered to the interested party as soon as the file is closed without keeping on record any note nor even integral certified full text of the copy of the order. Article 1545 – Proceedings during vacations - Such proceedings may be taken up during the vacation also. Article 1546 – Conversion of nominative documents into bearer documents - What is

provided in the previous articles is applicable in case the share holders or bond holders have the right to demand conversion of a nominating credit instrument into bearer title if the management of the company refuses to make such conversion. After the conversion is ordered, if the management refuses to comply with the decision endorsement shall be made on the credit instrument that they are bearer title and the administrators shall incur in the liability imposed on them, as provided in article 1544.

establishment where the judicial deposits are made when the management of the company refuses to do so.

Article 1548 – Mode of depositing - The deposit shall be done in the basis of a written

declaration of the interested party, or some other in his name, in which there is an identification of the company and there is an indication of the purpose of the deposit. The declaration shall be presented in duplicate, and one of the copies of the same shall remain in the custody of the depositor, with the noting of deposit having been made in the said document. Article 1549 – Legal effect of deposit – responsibility to admit the same - The chairman of the general body shall be bound to admit at the meeting the share holders and bond holders who produce the document of the deposit, referred to in the previous article, once they demonstrate through the said documents that the credit instrument has been deposited within legal period and the depositor possesses the number of the title deeds necessary to take part in the assembly. If he does not do so, he shall incur the penalty prescribed in the article 1544. SUB-SECTION VI EXAMINATION OF THE BOOKS AND DOCUMENTS Article 1550 – Petition and summons for examination of books of accounts and documents - In the event a share holder has been refused the exercise of the right recognized by clause no. 3 of article 119 of the Commercial Code, the interested party may apply to the court to eliminate the

refusal, indicating as clearly as possible the facts which are to be inquired and part of the writing in the books or documents which are required to be examined. The management of the company shall be summoned to contest within period of 5 days, failing which the examination will be permitted immediately.

Article 1551 – Subsequent steps - books of accounts and documents - In the case of the

contest the applicant may reply. After the evidence is led and necessary steps have been carried out, the court will decide the question. If the examination is admitted, the books and document whose inspection is demanded by the applicant shall be made available to the applicants and also time when the same may be examined and time when the same may be examined. Article 1552 - Execution - If the management of the company does not comply with the decision despite the notice thereof, the share holder shall get testified the factum of the resistance through an officer of the court and two witnesses and necessary record will be made. Once the factum of refusal is established with the signature of the witnesses, the judge shall order the seizure of the respective books and documents and which will remain in the custody of the court for the examination of the applicant and the administrators shall incur the liability prescribed in article 1544. SUB-SECTION VII INSTALLATION OF THE BOARD OF THE COMPANY Article 1553 – Procedure for appointment of office bearers - If one person duly elected or appointed for exercise of any office of the company is facing obstacles which obstruct him to assume the charge of the office, he may apply that he may be installed by the court, and justify immediately, by any evidence, his right to hold the office. Whoever has given cause for judicial intervention shall be summoned to, within period of 5 days, contest the prayer, failing which the application will be immediately granted. If there is a contest, the applicant may rejoin and thereafter after taking the steps and obtaining the necessary information, the decision will be passed. Article 1554 - Execution - If the installation is directed by the court, the applicant may pray that he may be installed in the office through the court.

The installation shall be done, either by the judge, if it is applied for, or by the registry of the court. Thereafter respective report shall be made in the head office of the company or at the place where the office is to be exercised and in such occasion the applicant shall be given the keys, papers, amounts and any other objects which must be retained in his possession, and for which all the steps shall be taken including breaking, which becomes necessary. At the time of the investiture in the office, if it is possible or subsequently notices shall be issued against the persons, the action was sought to abstain from causing any objections which may constitute obstacle to exercise the office on the part of the officer who was to be installed, on the pain of offence of disobedience. SECTION XVI MEASURES CONNECTED WITH SHIPS OR THEIR CARGO Article 1555 – Expert inspection of ship, to ascertain its navigability - When it is intended to hold arbitrament of a ship in order to ascertain its status of navigability, in accordance with article 505 of the Commercial Code, the captain may apply to the court of the jurisdiction where the port in which the ship is surfaced lies, that experts be appointed and arbitrament to be carried out. The judge after examining the inventory on the board of the ship shall appoint, depending upon the circumstances, the experts that are found necessary and fit for the appreciation of the different parts of the ship shall fix the period for the inspection and examination. The experts shall carry out the inspection without intervention of the court or maritime authority of the port and deliver within the time the result of its arbitrament. The period may be extended, if the extension is absolutely necessary. Articles 1555-1560 – Ships and Cargo is dealt by specific legislation. Article 1556 – Other expert inspection of ship or its cargo – The same steps shall be observed in all the cases in which arbitrament is sought of the ship or its cargo in the exercise of voluntary jurisdiction. If the inspection is urgent, the maritime authority instead of approaching the judge for appointment of the expert can carry out the inspection by themselves.

Article 1557 – Notice incase of a foreign ship – If it is a foreign ship and in the port there is a consular agent of the respective state, communication will be sent to such agent giving him knowledge of the procedural step required. The consular agent is permitted to apply for any procedural steps in the protection of the respective nationals. Article 1558 – Sale of ship for innavigability - When the ship cannot be repaired or when the repair is not justified because it is not economic, the captain of the ship may apply that it may be declared that the ship is not navigable, for the purposes of article 513 of the Commercial Code. The judge shall appoint the necessary expert or experts and shall fix a period for carrying out the inspection, by issuing notice to the interested parties residents within the judicial division to remain present for such inspection, if they so desire. If the experts conclude that the ship is absolutely not navigable or relatively not navigable they shall so declare and sale of the ship shall be ordered with its belongings. § Sole Paragraph: What is provided in the previous article is applicable to this article. Article 1559 – Judicial permission for acts to be done by the captain - When the captain of the ship requires judicial permission to do certain acts, he shall seek the permission to the court of the port where the ship has surfaced. The permission shall be granted or denied as per the circumstances, after taking necessary steps and obtaining the information which is deemed necessary. Commercial Code article 551 and 660.

Article 1560 – Appointment of consignee - If the captain of the ship pray that a consignee be appointed as in the cases of article 559 and 560 of the Commercial Code and explain and justify summarily the ground for which the appointment is sought. If the prayer found justified the judge shall appoint consignee and permit him the sale of the goods by any of the methods indicated in article 883.

BOOK IV ARBITRAL TRIBUNAL (Articles 1561 – 1580)

BOOK IV ARBITRAL TRIBUNAL TITLE I VOLUNTARY ARBITRAL TRIBUNAL