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Report No. 110

XVII. Applicable Law, and Proof of Foreign Law

5.85. Section 19-India law when to apply.-

Section 19 provides that if a person dies leaving movable property in India, in the absence of proof of any domicile elsewhere, succession to the property is regulated by the law of India. The section is to be read with section 5(2), under which succession to movable property is governed by the law of domicile1. The section needs no change.

1. Para. 5.21, supra.

5.86. Section 19A (New)-Presumption as to foreign law.-

At this stage, it would be convenient to deal with one matter which may necessitate the insertion of a new section in the Act. Under section 5(2), succession to the movable property of a deceased person is regulated by the law of the country in which such person had his domicile at the time of his death. This necessitates proof of foreign law. Ordinarily, foreign law is proved1 by the opinions of experts2. Sometimes, however, it is difficult to get in India experts in foreign law.

It would, therefore, be useful to have a statutory presumption to the effect that the law of the foreign country, unless proved otherwise, is the same as the Indian law. While such a provision would create only a tentative presumption, it would be of great practical use. The object would be to avoid the inconvenience which might result if competent foreign experts cannot be summoned without delay or expansion which might be disproportionate.

1. Section 45, Indian Evidence Act, 1872.

2. See Law Commission of India, 69th Report (Evidence Act), Chapter 18.

5.87. Burden of proof of foreign law.-

Even now, the burden of proof rests on the party asserting that foreign law differs from the law1 of the country. Hence, the proposition suggested above2 will not introduce a radical change, but will make the statement of the law self-contained.

In England3, in the absence of proof to the contrary, the position is that the court must give a decision according to the law of its own country4. There are, no doubt, one or two anomalous cases where the English court has not assumed the foreign law to be the same as the English statute law5. But in general, it is understood that foreign law is the same as English law, and the onus of proving that it is different, and of proving what it is, lies upon the party who pleads the difference6.

1. Cross Evidence, (1979), p. 634.

2. Para. 5.86, supra.

3. Halsbury's, 3rd Edn., Vol. 7, p. 176, para. 31.5.

4. Cresington-court v. Marinero, (1955) 1 All ER 676 (679) (Willmer, J.).

5. (a) Ry Brixton prison Governor, Ex-Parte Colding, (1961) 1 All ER 606.

(b) De Reneville v. De Reneville, (1948) Probate 100: (1948) 1 All ER 56 (61) (CA).

6. King of Spain v. Machado, (1827) 4 Rules 225 (239); Male v. Roberts, (1800) 3 Esp 163.

5.88. Recommendation as to foreign law.-

In the light of the above discussion, we recommend that a new section should be inserted somewhat on the following lines:

"19A. The court may, for the purpose of this Chapter, presume that the law of a foreign country is the same as that of India".

The Indian Succession Act, 1925 Back

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