SerieS i VOL. ii FeBrUArY 2015

ISMILDAS HISTORICAL AND LEGAL DOCUMENT SERIES

FORAL OF 1526

Foral dos Usos e Costumes dos Gauncares e Lavradores Desta Ilha de

Goa e Outras Annexas a Ella

Edited by Carmo DSouza

ACKNOWLEDGEMENT

I had a fascinating journey through Portuguese documents in 1980s as I worked towards my doctorate degree in Law through Poona University. I decided to pick up that thread again after over two decades and share those experiences with new readers. Instead of critically revising the text, I am presenting the material again in bits and pieces. The laborious task of the 1980s of searching for documents amidst dusty files have been facilitated by access to the internet. In order to motivate further research, I am presenting along with the text, the relevant documents with issues and comments.

I take this opportunity to thank my guide Dr. (Mrs.) R. K. Agrawala, then Head of Law Department of Poona University. She encouraged me to question law in the social context. I must record my deepest gratitude to Dr. T. R. De Souza and Dr. Luis Filomeno do Proena Bragana for their invaluable help and guidance as well as host of academicians, scholars and librarians and the Archival staff for their assistance and clues .

My special thanks to online resources whose material I have used.

I am grateful to Ms. Loretta DSouza for composing and editing the text.

Lastly, I am grateful to Mr. Leonard Fernandes of CinnamonTeal Publishing for publishing the e-book.

Carmo DSouzaCalangute, Goa.

January, 2015

Abbreviations:

APO-BP: Arquivo Portugues Oriental, ed. Bragana Pereira, (1937-1940)

APO-CR: Archivo Portuguez-Oriental, ed. Cunha Rivara, (1857-1876)

L.S I: Carmo DSouza, Legal System in Goa, Vol. I, Judicial Institutions (1510-1982), 1994

L.S. II: Carmo DSouza, Legal System in Goa, Vol. II, Laws & Legal Trends (1510-1969), 1995

Doc: Document

Objectives

To motivate research into legal and historical documents related to the then Estado da India;

To critically analyze the documents in the light of current methodology;

To present documents related to Goa to global scholars in order that they may undertake research in those areas.

Methodology

The following methodology has been adhered to in discussing the historical and legal documents. The methodology may vary in future in light of responses and suggestions from readers.

Introduction: A small and brief introduction is given on the document been discussed.

Presentation of document: The document is then presented in its original form. They are mainly from the historical archives. Certain lines may be underlined or introduced in boxes for emphasis.

Notes and Comments: In order to motivate further research, some notes and comments may be added. They also facilitate the comprehension of the document.

Research Questions: Certain questions are raised in order to motivate scholars to carry on further research.

Explanation of document in English: A brief explanation of the document is presented in English in order to help those not conversant with the Portuguese historical text. It is to create interest for further research.

Material

The material is based as a rule on my published work Legal System in Goa, Vo. I and II. The book based on the thesis for which I was awarded P h. D. (Laws )by Poona University was published in 1990s. Instead of critically reviewing the material again, I have selected small subtopics and presented the material with aid of documents, where ever possible. In other cases I have just mentioned the reference for the readers to explore the areas. I have raised some questions on the documents in order to generate discussion.

CONTENTS

CHARTER OF 1526 (FORAL)

CASE OF SINAY BROTHERS

CHARTER OF 1526 (FORAL)

Introduction:

The Charter was the legislative pillar in the sixteenth century to which local uses and customs were anchored. It was considered as the Magna Carta of the village communities, which maintained and preserved its structure as well as the usages and customs of the village commune. The charter was a compilation of various laws, regulations, usages and customs prevalent in the self sufficient autonomous village communities which were of ancient usage. The Charter was drafted by Affonso Mexias, who was the Director of Revenue (Vedor de Fazenda). It was not possible to outline details of procedures and of customs of each individual unit. What Affonso Mexias achieved was to set broad rules, which governed each unit individually and rules and principles which governed the interrelationship of these units with each other, under a central institution called the General Agrarian Chamber (Camara Agraria). The compiler saw to it that all rules governing these local institutions with the Sovereign, were taken care of, especially the revenue aspect. This is understandable, as the compiler belonged to the revenue department and the fact that such Foraes were formulated to govern the relationship between a locality and the Sovereign in Portugal too. Though much of local law and custom remained in an unwritten form, the Charter was looked upon as the anchor sheet, recognising and giving legal validity to the ancient usages and customs.

Presentation of Document:

Begins on the following page.

Notes and Comments:

o Item No. 1 refers to the four men who developed the island of Tiswadi.

o Item No. II mentions the 31 villages that constitute the island of Tiswadi. It also specifies the 8 principal villages which were responsible for payment of dues towards the Sovereign.

o Item No. XI mentions Escrivo da Camara (Clerk of Chamber ) who has to be present for accords and agreements which are called Nemos.

o Item No. XIX mentions the consequences of a person dying without male heirs, the property lapsed to the king.

o Item XXXI refers to a thief who robs money or any other goods was to be punished as per the ordinations and other laws, and the property would be returned to the owner though as per the usages and customs, it belonged to the king.

o Item XLV gives pre-eminence to the village of Taleigao as they were instrumental in helping the Portuguese during the conquests of Goa.

Research Questions:

Whether the Foral is unduly concerned in protecting the interest and revenue of the 1. Sovereign?

Whether the term Renda used in the document is the appropriate word for payment made 2. towards the Sovereign?

Whether item IX was a practical provision in the customary law to develop the lands on the 3. outskirts of the village?

Whether the period of 25 years mentioned in item IX has roots into local usages and 4. customs?

Whether item XXVII enunciates the doctrine of lapse of immovable property when a person 5. dies without male issues?

Whether document 58 throws light on usages and customs of the Hindus in Goa?6.

Explanation of document in English:

The Charter codified the uses and customs of thirty - one villages of the Island of Goa (Tiswadi). At the very outset, it enumerated the villages to which it applied. It had forty-nine clauses touching varied aspects of village communities, their functions and the local usages and customs found in those communities. The Charter was mainly concerned with, (1) Relationship of the village communities with the sovereign, (2) Relationship of the village communities among themselves, (3) Property and allied rights, (4) Procedures of village communities, (5) Succession rules, (6) Social life and status and (7) Other aspects.

Relationship of the village communities with the Sovereign. Each village community had to pay a certain contribution (renda) to the king. The contribution was payable by all the thirty-one village communities as a unit, irrespective of the gains or losses suffered by the individual village. There were procedures by which other villages as part of the unit, had to fill up the debts of a defaulting village. However, the contribution towards the king was to be waived off, in case of losses suffered due to war. The above payment towards the Sovereign, is said to be the surviving principle of these self sufficient units, under different rulers. There was a provision too, to safeguard the kings revenue. When a member of the community died or ran away leaving no heirs, his estate passed to the king; and in such cases if there were debts to be settled, the dues of the king had to have preference over the others. When a member of the community died without a male issue, even though he had his own parents or other ancestors, his property lapsed to the king, except in case it was held jointly by the father and the dead son (heranga mistica), in which case it went to the father. Customary law was very harsh to a man without male issues, as his family comprising of wife and daughters were left destitute and helpless. Such harsh procedure was imposed perhaps, as it might have been consid-ered as a curse of God, not to be able to produce male issues for continuity. The lapsed property was auctioned and the proceeds went to the kings revenue.

Relationship of the village communities among themselves. When a village suffered such losses that it could not pay its share of contribution to the king, it had to account for that fact before the Chief Thanadar and the head clerk (escrivao da Ilha), who would verify the losses and finding them reasonable, would call up the meeting of the members of the Chief Village Communities. At the above gathering, in the presence of the Chief Thanadar and the head clerk, the defaulting village could be leased out at an auction. The dues of the village to the Crown had to be made good, as the members of the eight principal villages were responsible for it, by either sharing the losses between the eight villages among themselves or by sharing it among all the villages of the Island of Goa. Thus, the custom recognised the principle of common responsibility of all villages, towards the contribution of each village to the kings treasury. This responsibility fell more on the shoulders of the general governing central unit, comprising of the fixed eight villages mentioned in the Charter. However, the members of the village that was leased temporarily, did not loose their membership rights (Gaonkaria) and could ask for the termination of the lease of their village, by paying full dues. Thus, principles of common sharing and common responsibility were incorporated by custom into the function-ing of the village communities. The Charter also recognised the general meeting of the chief members ,of the village communities and their power to take decisions and accords, in the presence of the Chief Thanadar and head clerk, by a certain procedure of votes called nemos. The Chief Thanadar could also compel the members of all the village communities or of just one village, to gather for a meeting or to come to elect their representatives.

Property and allied rights. The members of the village community together with their clerk, decided on the contribution to be made by the tillers of the land and others, who held properties in the village as per their usages and customs. These village community members were responsible for the collection of dues and to make payment of their village contribution, which would go to the kings treasury; profits or losses being shared by them or remaining with the village. Each year rice fields, not reserved for particular individuals, were to be leased on auction as per the custom. If the custom allowed such lease of rice lands to be made outside the village, to whoever paid more, they could do so. The Charter referred to the fact that certain leased out lands, had a definite quantity to be paid as rent, which was to be waived off in case of losses, whereas other leased lands had a fixed amount to be paid, irrespective of the losses, and yet others which were to be given free without any sort of contribution. As per the usages and customs, the village community could give out land to various officials and labour staff of the villages, whenever there was a vacancy to these posts, like the Brahmin of the Pagoda, the clerk of the village, the door-keeper, the washerman, the carpenter, the smith, the menial labourer, the women attached to the pagodas and some others mentioned specifically by profession in the Charter; the land was to be given free in lieu of the service rendered to the village. Once such donation was effected, they could not remove it from their possession, as it was given to their heirs, who were obliged to continue rendering the services. Leasing out land freely to outsiders was strictly prohibited except under certain conditions.

The customs of the village community acknowledged the principle of a combined type of partnership in the village assets. It laid down, that if a particular member of the community wanted to sell his hereditary rights in the village, he could do so only with the permission of other members of the community. On the same lines, permission was needed to buy a share in the village community. Any transaction involving selling or buying, without such a permission was null and void. It also laid down, that any sale of any hereditary rights, was to be signed by the seller as well as by all the heirs and minors (through proxy). In the event of failure the sale could be set aside by paying the sale price; the buyer would however suffer financial losses for all the additional improvements made. Thus, the hereditary rights of the members of the village community, were strictly protected to prevent property going out of the hands of its members with ease. It was a closed door policy of the village communities. The Charter also provided for giving out uncultivated and barren land for development, which existed on the borders of the villages, on payment of a certain rent, which after a period of twenty five years, would entitle them to some kind of ownership on payment of certain rates. Rates were set out in the Charter for these transactions. Similar type of procedures was laid down for giving land under areca cultivation. Thus, land was brought under cultivation and development by requiring the person to work for twenty five years, before he could acquire ownership rights.

The offices held by the chief members of the village community and the position of the clerk were hereditary in nature. So, there were provisions to safeguard their interests due to errors. As a rule, damages caused by mistakes of those holding offices, were to be compensated from their assets and not from their rights in the village community. However, there were procedures to remove them from their posts which in fact affected the rights of their sons and descendents. Such cases were to be judged by the Chief Thanadar, together with some members of the community and in more serious cases, it was to go up to the Governor, or the Captain of the City or the director of revenue, depending on the case. The Charter also had provisions to safeguard the rights of the heirs, when one member of the community ran away. They were to be called and asked, if they wanted to continue with their rights by accepting corresponding debts and

obligations. If the successors did not accept the obligations, the immovable property would go to the members of the community while movables went to the king.

Procedures of the Village Community. The Charter also dealt with customary organisational procedures of the village community. It empowered the Chief Thanadar to call the members or representatives of all the villages or a particular village, to elect a body called Gauncaria. The Charter also dealt with the manner of writing names of the members (status wise), in the gathering of such bodies. Laying down the procedure for accords and decisions, the Charter stated that the clerk had to take down the minutes of the meetings and then had to read them aloud. The decision was based on some voting pattern. If there was no discord on the matter read, the decision was considered as valid.

Interesting procedures were provided in the Charter on procedures for proof of ones rights. In suits involving hereditary rights or immovable assets, one could not use witnesses. One was bound to prove it through documents (escriptums e conhecimentos), or using the book of the village. If however the above was lost he could be asked to swear on the Pagoda called Fire (Uzoo). Also in case of certain debts (devidas sobre conhecimento), which the creditor had failed to sue in due time out of negligence, and the debtor denied such debt, one was to resort to the swearing on the above mentioned Pagoda. There were restrictions and procedures for giving and recovering debts. Interestingly, there were limits for interest rates chargeable in case of debts and. in no case could the total amount payable at a time, that is principal and interest, exceed double the money loaned. The Charter laid down the conditions that disqualified one from being a witness. Thus, minors of sixteen years and below, a drunkard, a blind man, deaf, dumb, ruffian son of a prostitute, infamous men accepted as such by the authorities administering justice, were not to be accepted as wit-nesses.

Succession Rules. The customary rules of succession recognised by this Charter were interesting. As it has been seen earlier, the property of a man who died without leaving a male issue, passed to the king. Similarly the separate property of a brother, who turned Muslim or Yogi, so that he was out of society, passed to the king. Sons could not ask for partition of property during the life time of their father, except if the father was willing to do so. In such cases when partition was done willingly by the father and the partitioning done in a brotherly manner, the sons were bound to maintain their father. There were more complicated procedures of partitioning between brothers.

On general principles on customary succession, it laid down, that succession was from father to son and grandson, in descending manner, and from son to father and grandfather in an ascending manner. It specified that succession took place only through males and in no way through the females. The Charter laid the system of succession of a man married to more than one wife. As an illustration the Charter referred to a man married to two wives, having four sons from one wife and one son from the second wife. In such a case, following the doctrine per stripes, the property was to be partitioned into two halves, one son of a wife taking half the property and the other four taking the other half. It also laid down that the daughters had no share in the succession of the father or the mother.

There were provisions on the procedure to be followed on the death of a party, whose property lapsed to the Crown, as he had no male issues. It required the property to be given in auction to a member of the village community or to a relative of the deceased, whoever paid for it and

never to an outsider of the village, except if he was a relation of the deceased. The relatives, preference being given to the closest degree, enjoyed the privilege of stepping into the shoes of the others in the transaction. Even if the transaction was accomplished, the relatives could use the privilege of pre-emption within a period of few days, accepting the corresponding obligation of paying contributions. Proceeds of the transaction were to go to the Crown. However movables of the said deceased, were to be sold to one who paid more for it, be it a relative or not, a villager or not. From the above sale money, debts if any had to be settled first. Thus, there were restrictions in disposing immovable goods, in keeping with the structure of the village communities, whereas movables had no such restrictions.

Social life and status. Certain social obligations and customs recognising status, also formed part of the Charter. It laid down that on festivities and occasions, the chief member of the village community was to be the first to take certain items (betre or pachoris or joia). The other gaonkars had to follow him in order of their prominence. During sowing and reaping time, the chief member of village community was to be the first to carry on this operation. He also had the privilege to be the first to cover his house with palm leaves. During festivity in the village the dancing men and women had to perform their arts at the house of the chief Goankar. In villages where pre-eminence of the chief Gaonkar did not exist, this right could be sold, each time to anyone who was interested in it, otherwise the honour went to the clerk of the village. Besides nobody could carry certain status items such as umbrellas (tocha, andor, sombreiro) without the licence of the king or Governor, unless he enjoyed such privilege as a hereditary right from his father. Such privilege could however be conceded by the king or Governor in recognition of their services. All the above privileges protecting status were incorporated in the Charter.

Other aspects. The Charter had many other varied provisions, which reflected on the functioning and the social obligations of village communities. Members of the village communities of the Island of Goa and some adjacent islands, were obliged to provide workers at their own cost to clean the City of Goa, to cut down grass fields and forests growth besides cleaning the walls. This was the maintenance and sanitary aspect of the village communities. The Charter laid down that in case of theft, punishment would be as per Ordinations and the theft property was to be returned to the owner if any, irrespective of the usages and customs by which it passed to the ownership of the king. As per the Charter anything that was discovered or found belonged to the king. There were provisions to prevent corrupt practices among various government officials like Governors, Captains, Revenue officials and so on. There were regulations on above officials as well as punitive measures for those members of the village community, attempting to bribe such officials. Evasion of the kings taxes and dues on merchandises and such other activities, made one liable to a penalty of eleven times the amount. Another interesting clause in the Charter was the privilege enjoyed by the village community of Taleigao, to hold the reaping ceremony first, during which they would present the corn to the Portuguese officials, after taking it to the principal church of the City of Goa (Se). The Portuguese officials in their turn would reciprocate with certain signs of honour. Whenever officials like the Thanadar, factor, clerk and so on, were on official duty, the village or villages had to provide them with food, as per their custom.

CASE OF SINAY BROTHERS

Introduction:

The Foral of 1526 had mentioned only one style of customary partition between sons of two wives . A case came before the Auditor General filed by Sausinay and Santu Sinay both brothers , brahmins against Ramu Sinay. The petition mentioned that in the Foral of Affonso Mexia only one style of partition was mentioned between sons of two wives of a deceased father. There was a petition to the Governor Nuno da Cunha to order the Auditor General to find about another custom which was prevalent in such situations. The petition requested that the learned people on customary law air their views on the subject. The said learned people were administered oath by Gupu, the translator of the Auditor Judge.

Presentation of Document

Begins on the following page.

Notes and Comments:

Document 72 refers to partition that would be done on the death of the father among his sons from two different wives.

It mentions that Affonso Mexia, Veador da Fazenda who compiled the Foral, did not take sufficient information on the second custom about succession of the sons to their fathers properties belonging to two different wives.

Research Questions :

Whether the contents of document 72 have parallels in Indian Customary Law?.1.

Whether the second custom of partitioning property between sons from two different wives 2. has parallels in Indian Customary Law?

Explanation of document in English:

An interesting case arose in 1534, in which, a claim was made that partition of the property of a man married to two wives, was to be done equally between all the sons of both the marriages as per a second custom which had escaped Affonso Mexias, the compiler of the Foral. After many consultations with local legal experts, the following conclusions were made; (1) there were two customs of partitioning, one as per the Charter wherein the sons of one wife took half the property irrespective of their number and half went to the sons of the second wife (per stripes) and the second custom was of equal partitioning among all sons (per capita), (2) If the father partitioned voluntarily without approaching justice, he could follow any one of the above customs, (3) Members of the village community agreed to follow both the customs and when the parties did not agree, they would follow the law of equal partitioning between sons and (4) It was held that both the custom were ancient in origin.