Report No. 110
48.9. Section 371.-
This takes us to section 371, which reads as under:
"371. The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at the time he had no fixed place of residence, the District Judge within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this part."
Section 371 thus lays down two alternative criteria for jurisdiction-
(i) residence, or (ii) existence of assets. But primacy is given to the first; the second applied only if the first is not satisfied. How far the present criterion should be retained, is one of the matters that will need consideration.
48.10. Domicile not adopted as a test.-
Although domicile determines the law applicable to succession to movables and situs determines the law applicable to immovables, the law does not follow the same principles in regard to jurisdiction to grant a certificate.
48.11. English and Commonwealth law.-
English textbook writers1 state that the jurisdiction of the old ecclesiastical courts (of which the modern probate court is the successor) was universally founded upon the situation of movables belonging to the deceased. It would appear that jurisdiction in probate in other countries of the Commonwealth also mostly depends not on domicile, but on the existence of local assets2-3
1. Cheshire Private International Law, (1970), p. 580.
2. Wolffe Private International Law, (1950), p. 657.
3. Sykes and Pryles Australian Private International Law, (1979), p. 442.
Such a rule1 is a direct descendant of the rules regulating the jurisdiction of church authorities under the old ecclesiastical law2.
1. Goods of Tucker (in re:), (1864) 3 Sw & Tr 585: 164 ER 1402.
2. Goods of Coode (in re:), 1867 LR 1 P&D 449.
48.13. Need for examination of the position.-
This aspect of the matters was considered by us whilst discussing1 section 270, which deals with jurisdiction to grant probate, but no change in that section was recommended on this point, as no practical difficulty had been experienced. In regard to section 371, however, some obscurity has arisen because the words used in the section are-"if at that time he had no fixed place of residence," without indicating whether the fixed place of residence should be in India or may be anywhere in the world.
Judicial decisions reveal a certain amount of conflict. According to the majority view, after the words, 'in question', the words 'in India' should be read. Thus, if a person is not domiciled in India, then his case would be covered and the District Court would have jurisdiction on the basis of assets within its local limits, notwithstanding that he has a fixed place of abode outside India.
This view has been taken by the High Courts of Allahabad2 Calcutta3, Lahore4, and Madras5.
1. See Chapter 34, supra.
2. Goswami Gopal LaIji v. Goswami Jai Lalji, (1885) 5 ANW.
3. Kanju Abdul Rasool (in re:), 54 CWN 826.
4. Amar Nath Singh v. Sham Singh, AIR 1935 Lah 646.
5. Krishna Ammal v. Lakshmi Ammal, ILR 1950 Mad 718 (726, 727, 728, 735).
48.14. Conflict of views.-
The other view is taken in a Bombay case1. This was decided with reference to the Succession Certificate Act 27 of 1860. Section 3 of that Act contemplated the issue of a certificate for a British subject either resident in the district where the certificate is sought, or else, having no fixed place of residence. The deceased in that case was a resident of Baroda, (outside British India) and had died there.
The High Court observed "the representation of such a person would properly be sought in the country he belongs to and the constituent he represented would then sue or empower someone to sue in the court. The Act does not make provision for the administration of the effects of a foreigner domiciled abroad".
1. Mir Abrahim v. Zialunissa, 1888 ILR 12 Born 150.
48.15. Practical approach to be adopted.-
For the present purpose, it is unnecessary to discuss which of the two views now summarised above is correct. Practical considerations, however, require that the first view should be adopted. That is the general practice in the Commonwealth also, and creates no serious problems as such.
Some writers have expressed the apprehension that this would mean that may be parallel proceedings in the two countries. This, however, is a rare possibility. Generally, the other country also would grant administration only where the assets are within the jurisdiction of the competent court of the country1.
Moreover, it would be difficult for the court in one country to hold an enquiry into the truth or otherwise of an allegation that the deceased has had his ordinary residence in some remote corner of the world.
1. Cf. para. 48.12, supra.
48.16. Sections 270 and 371 compared.-
It may be noted that the corresponding provision regarding grant of probate etc.-section 270-is more specific. Under that section, the District Judge has jurisdiction if the deceased at the time of his death "had a fixed place of abode or any property movable or immovable within the jurisdiction of the District Judge". Disparity between section 270 and section 371 seems to have arisen because the two provisions are drawn from two different earlier Acts, relating to probate and succession certificate respectively. There is no need to have any such disparity.
48.17. Existence of assets-crucial point of time.-
There does, of course, remain the question whether the assets should have been within the jurisdiction of the District Judge at the time of death or whether they should be within the jurisdiction at the time when the application for succession is made. At present, the second course seems to have been adopted in the section, while the re-draft recommended by us1 adopts the first course following the pattern of section 270.
We have deliberately made a departure in this regard, since we are of the view that there should, as far as possible, be uniformity in the provisions relating to jurisdiction to grant probate,- etc. (section 270) and jurisdiction to grant a succession certificate (section 371). In section 270, the first course has been already adopted, and we would prefer to follow the same pattern in section 371 also.
1. See para. 48.20, infra.
48.18. Existence of assets within India-Whether necessary.-
Another question that needs to be considered in connection with section 371-and also in connection with section 270-is whether1, for the grant of succession certificate (or probate), it is necessary that some assets should be situated within India.
The section does not, of course, so require, but a view4 has been expressed that such a requirement is implicit in the section, having regard to the practice that existed in England before the passing of the Administration of Justice Act, 1932 which made a slight modification by giving a discretion to the court in certain cases. It has also suggested judicially3 that the position should be changed in India on the same lines as it has been done in 1932 in England.
1. Point relevant to section 270.
2. Kalyani Kutti v. Gauri Kutti, AIR 1953 Tray-Co 252.
3. Kalyani Kutti v. Gauri Kutti, AIR 1953 Tray-Co 253.
48.19. Assets not necessary in India.-
Having given our careful consideration to the matter, we are of the view that it is better not to make any verbal change in the section on this point. In general, where statutory provisions on a particular matter in codified law on a particular subject are specified, courts in India do not seem to super impose any requirement on the basis of English practice or rules of private international law.
So far as we have been able to gather from the other reported decisions on sections 270 and 371, a requirement that there should be assets in India has not been read into the section. In the circumstances, we do not consider it proper to make a change in the section, so as to throw a doubt on the width of jurisdiction exercisable under the section as it has been generally understood.
48.20. Recommendation as to section 371.-
In the light of the discussion in the earlier paragraphs1, we recommend that section 371 should be revised as follows:
"371. The District Judge within whose jurisdiction the deceased, at the time of his death, had a fixed place of abode, or any property, movable or immovable, may grant a certificate under this part."
1. Para. 48.16, supra.