Report No. 110
IV. The Choice of Law: Section 5
5.16. Section 5.- This takes us to section 5. The section reads as under:-
"5. (1) Succession to the immovable property in India of a person deceased shall be regulated by the law of India, wherever such person may have had his domicile at the time of his death.
(2) Succession to the moveable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death.
(i) A, having his domicile in India, dies in France, leaving movable property in France, movable property in England, and property, both movable and immovable, in India. The succession to the whole is regulated by the law of India.
(ii) A, an Englishman, having his domicile in France, dies in India, and leaves property, both movable and immovable, in India. The succession to the movable property is regulated by the rules which govern, in France, the succession to the movable property of an Englishman dying domiciled in France, and the succession to the immovable property is regulated by the law of India."
5.17. Principle underlying section 5 and analysis of section 5(2).-
Subsection (1) of section 5 is based on the principle of private international law, that all rights over immovable property are governed by the law of the country where the property is situated.1 It would appear that in England, not only succession, but also the execution, attestation and interpretation of wills disposing of immovable property, and all questions relating thereto, are governed by the law of the locality where the property is situated.2
1. Bonnaud v. Emtile Charriol, 1905 ILR 32 Cal 631 (640).
2. Studd v. Cook, 8 Appeal Cases 577.
5.18. Sections 5(1) and 5(2).-
Section 5(1) needs no detailed discussion. The effect of section 5(2) may be analysed. Where a person domiciled in foreign country, but living in India, leaves property movable and immovable in the foreign country and also immovable property elsewhere, the various important situations would be then dealt with according to the rules of Private International Law.1 The position is as follows:-
(i) Immovable property in India would be distributed according to the internal law of India, and the foreign domicile is not of any relevance.
(ii) Immovable property in the country of domicile (or in any other country) is to be distributed according to the law of the lex situs.
(iii) Movable property in India would be distributed in accordance with the law of domicile.
(iv) Movable property in the country of domicile would, of course, be distributed in accordance with the law of that country.
(v) Movable property in any other country (other than the country of domicile or India) would also presumably be distributed according to the law of the country of domicile.2
1. Adapted from Levontin Choice of Law and Conflict of Laws, (1976), p. 66.
2. Cf. Ross (in re:), (1930) 1 Ch 377.