Report No. 110
IX. Acquisition of Domicile
5.43. Section 11.-
This takes us to section 11, which provides a special mode of acquiring domicile in India. This provision does not seem to do great violence to the already accepted rules as to the acquisition of a domicile of choice. It does not, however, make clear that an intention of "permanent" residence does not have to be looked for.
5.44. Acquisition of new domicile-New Zealand.-
It may be stated, as a matter of interest, that according to the New Zealand Domicile Act,1 "a person acquires a new domicile in a country at a particular time if, immediately before that time2, (a) he is not domiciled in the country; and (b) he is capable of having an independent domicile; and (c) he is in that country; and (d) he intends to live indefinitely in that country." A "country" is defined by section 2 of the Act as meaning (unless the context otherwise requires) "a territory of a type in which, immediately before the commencement of this Act, a person could have been domiciled."
This is a sound rule3, and has been made because the situations where a person can be found to have irrevocably and positively stated that he means to live out all his days in a particular country must indeed be few.
1. Section 9, New Zealand Domicile Act.
2. See "Domicile" (20 September, 1977) New Zealand LJ 375-379.
3. "Domicile" (20 September, 1977) New Zealand 1J 375-379.
5.45. Section 11-Declaration before prescribed office.-
Reverting to section 11 of our Act, a special mode of acquiring domicile in India is provided by the section, under which a person may acquire such domicile by making a declaration and depositing it in the prescribed office. Apparently, the provisions of this section are designed only to confer a limited domicile for the purpose of regulating succession to movable property, and not for any other purpose. This view was taken by a majority of the Chief Court of Sind1, though the minority view (Tyabji, J.) was different.
1. Weston v. Weston, AIR 1945 Sind 152 (Majority view).
5.46. Recommendation to amend section 11 so as to define its scope.-
Having regard to the setting in which the section is placed and the limited scope of the Act, it is, in our opinion, advisable to give effect to the majority view of the Sind Chief Court1 referred to above2, by adding suitable words in section 11. We recommend that the section should be so amended. An Explanation should be added as under, to section 11:
"Explanation.-The provisions of this section confer a limited domicile only for the purpose of regulating succession to movable property, and not for any other purpose."
1. Weston v. Weston, AIR 1945 Sind 152.
2. Para. 5.42, supra.
5.47. Section 11-Recommendation to amend section 11 in relation to minors.-
Another point arises under section 11 in relation to minors. Under the section, "any person" may acquire a domicile in India by making and depositing in some office in India appointed by the State Government a specified declaration. Though the words used are 'any person', it is presumed that this section does not contemplate a minor or other person under legal disability in relation to the capacity to contract.
To bring out this aspect, it appears to be desirable to limit the section expressly to a person competent to contract by the law of the country in which he was domiciled immediately before such declaration. Accordingly, we recommend that section 11 should be amended by adding, after the words "any person", the words "competent to contract by the law of the country in which he was immediately before such declaration domiciled."
5.48. Section 12.-
This takes us to section 12, which reads:-
"A person who is appointed by the Government of one country to be its ambassador, counsel or other representative in another country does not acquire a domicile in the latter country by reason only of residing there in pursuance of his appointment; nor does any other person acquire such domicile by reason only of residing with such first mentioned person, as part of his family, or as a servant."
The section deals really with a situation analoguous1 to that dealt with in section 10, Explanation. It needs no change.
1. Para. 5.38, supra.
5.49. Section 13-Continuance of new domicile.-
Section 13 provides that a new domicile continues until the former domicile has been resumed or another has been acquired. The circumstances in which a domicile is "resumed" are not dealt with in the section. But determination of such a question, if it arises, will depend on the facts to which the principles of sections 10-12 would apply.
The section needs no change.