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Report No. 110

IV. Transfer of Assets to Foreign Executor or Administrator

46.13. Section 367-Person not domiciled leaving assets.-

With section 367, we enter an area somewhat different from that to which the preceding few sections belong. There is a foreign element introduced which gives the section a theoretical interest of its own. Let us quote the section:

"367. Where a person not having his domicile in India has died leaving assets both in India and in the country in which he had his domicile at the time of his death, and there has been a grant of probate or letters of administration in India with respect to the assets there and a grant of administration in the country of domicile with respect to the assets in that country, the executor or administrator, as the case may be, in India, after having given such notices as are mentioned in section 360 and after having discharged, at the expiration of the time therein named, such lawful claims as he knows of, may instead of himself distributing any surplus or residue of the deceased's property to persons residing out of India who are entitled thereto, transfer, with the consent of the executor or administrator, as the case may be, in the country of domicile the surplus or residue to him for distribution to those persons."

46.14. 'Main' and 'ancillary' administration.-

The subject-matter of the section is ordinarily dealt with in the textbooks under "ancillary Administration."

The position regarding "main and ancillary" administration has been lucidly stated by Wolff1-

"The jurisdiction of the English court is not exclusive in respect either of administration or of succession. Administration may take place in more than one country. In such a case the main administration lies in the country where the deceased had his last domicile, or, in the case of renvoi from the domicile to the national law, in the country of which he was a subject. The administration in any other country is only 'ancillary'.

Therefore, if the main administration is abroad, and there is ancillary administration in England, the duty of the English administration is only to administer the goods situate here, to collect the debts which are by English law deemed to have an English situs, to pay the English debts and all foreign liabilities of which he has notice, and ultimately to hand any surplus to the main administrator2 unless the English court exercises its discretion to the effect that the payment has to be made direct to be beneficiaries."

1. Wolff Private International Law, (1950), p. 606, para. 583.

2. Achilopoulos (in re:), 1928 1 Ch 433 (445).

46.15. Need for change-Executor appointed in country other than country of domicile.-

Section 367 is substantially based on the same approach and is sound as far as it goes. But its scope should be expanded to cover cases where tile foreign country is one other than the country of domicile.

At present, section 367 does not deal with the case where the foreign executor or administrator was appointed in a country other than the country of domicile. Theoretically, such a situation can arise if a foreign country has, in its law regulating the grant of probate or administration, a provision which confers jurisdiction on its courts if sonic property is situated within its jurisdiction1. Apparently, this situation has been considered to be too rare to deserve a specific provision in our Act. It may be noted that with reference to section 270 the existence of property within the jurisdiction is enough, subject, of course, to the discretion of the court under section 2712.

1. Compare section 270, Indian Succession Act.

2. Will of Ramchand (in re:), AIR 1956 Mad 274.

46.16. Need for amendment.-

It appears to us that such a case should be provided for by an express provision, even though it may not be very frequent. In the absence of a specific provision, the executor or administrator may be at a loss to decide what to do with the balance. With the permission of the court, he should have power to take action under the section in such cases also.

46.17. Recommendation to revise section 367.-

In the light of the above discussion, we recommend that section 367 should be revised as under:-

Revised section 367

"367. (1) Where-

(a) a person not having his domicile in India has died leaving assets both in India and in the country in which he had his domicile at the time of his death, and

(b) there has been a grant of probate or letters of administration in India with respect to the assess in India and a grant of administration in the country of domicile with respect to the assets in that country, the executor or administration, as the case may be, in India, after having given such notices as are mentioned in section 360 and after having discharged, at the expiration of the time therein named, such lawful claims as he knows of, may, instead of himself distributing any surplus or residue of the deceased's property to persons residing out of India who are entitled thereto, transfer, with the consent of the executor or administrator, as the case may be, in the country of domicile, the surplus or residue to him for distribution to those persons.

(2) Where there has been a grant of administration in a country other than the country of domicile and other than India, the executor, or administrator may, with the permission of the Court, take the same action as he could have taken if there had been a grant in a country of domicile other than India and the provisions of this section shall, with necessary modifications apply to the case as they apply if there had been a grant in a country of domicile other than India."

46.18. Scope of section 367-after proposed amendment.-

By way of anticipating certain possible objections to the proposed extension of the scope of section 367, we may state that the provisions of the section, even after the proposed amendment, would be confined to a person not domiciled in India. Secondly, the provision, in so far as its scope is to be extended, will apply only subject to the permission of the Court.

The Court, in granting permission, will certainly satisfy itself that the transfer of assets to" the foreign executor or administrator under the section would be in the interests of justice. It is better to keep the matter elastic as above, rather than tie down the hands of the Indian executor or administrator or fetter the discretions of the Court by insisting upon the requirement of reciprocity or other rigid criteria.



The Indian Succession Act, 1925 Back




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