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Report No. 110

III. Section 4

5.12. Section 4-Recommendation to extend Part II persons at present excluded (Hindus etc.).-

By virtue of section 4, Part II of the Act (Sections 4 to 18), which relates to domicile, does not apply, to Hindus, Mohammedans, Buddhists, Sikhs or Wm. Under the Special Marriage Act,1 however, this part would apply to persons whose marriage is solemnised under that Act. A study of the sections contained in this Part does not reveal any particularly weighty reason why the sections contained in this Part should not apply to the persons excluded at present form their scope. In fact, the principle of these sections has been adopted in various decisions2 relating to the persons so excluded-that is to say, Hindus, Muslims, Buddhists and others.

1. Section 21, Special Marriage Act, 1954.

2. Viswanathan v. Abdul Wasid, AIR 1963 SC 1.

5.13. Possible explanation of section 4.-

There is an historical explanation of the British concept of domicile, and that may perhaps explain why section 4 excludes Hindus etc. The oddities of the British domicile of origin can be understood only against the background of the historical context in which this concept was developed.

This was, in the main, in the mid-Victorian age when Britain was the centre of a world-wide Empire, the different parts of which were heterogeneous in regard to civilisation ways of life and law. There was then need for a device allowing British settlers in the various parts of the Empire to remain subject to their own law in personal matters and in matters of succession, even when they spent a long time away from home, there being in most cases no question of their assimilation to the local conditions.

As it has been put, the tenacity of the doriticile of origin "reflects the habits of the English upper classes of the last century when vouneer sons went to the colonies to make a fortune and retired home afterwards" as well as "a reluctance on the part of the courts in mid-Victorian England to admit that a gentleman could never lose all connection with the country of his birth and his ancestral estates".1-2

1. Palson Marriage and Divorce in the conflict of Laws, (1974), p. 63.

2. Nygh Conflict of Laws, pp. 74, 81, 82.

5.14. Case law as to domicile of Hindus etc.-

This is perhaps the reason why the sections relating to domicile were made applicable only to non-Indians, since, at that time, the need felt was confined to them. However, on general principles, what has been enacted in section 4 is in substance applicable to Hindus also-a position resulting broadly from a decision of the Supreme Court.1 There are decisions also of High Courts following this principle. For, example, in a Kerala case,2 the High Court decided that the sale proceeds of immovable property in Sheffield (U.K.) would be governed by English law.

This point was not, on appeal, disputed before the Supreme Court.3 The dispute in the appeal before the Supreme Court was as regards the law which governed the succession to movable properties and monies left by the deceased. On this point, the Supreme Court held-"If Krishnan (the deceased) had acquired a domicile of choice in England, there can be no doubt that English law would govern the succession to them."

1. Vishwanathan v. Abdul Wasid, AIR 1963 SC 1.

2. Sankaran v. Lakshmi, AIR 1964 Ker 244.

3. Sankaran v. Lakshmi, AIR 1974 SC 1764 (1767), para. 13.

5.15. Recommendation to delete section 4.-

In this position, we recommend that Part II of the Act should be extended to the persons at present excluded from its scope. This will only clarify the present position. It would not introduce any change of substance. The object could be achieved by deleting section 4, which, at present reads-.

"This Part shall not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jain."

The Indian Succession Act, 1925 Back

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