Report No. 110
6.5. Sections 20-21-significance.-
The significance of section 20 and 21 has been thus explained1 by Markby, J.-
"The lex loci of India, like the lex loci of all other countries, is applicable to the immovable property of foreigners sojourning but not domiciled here, but not to their movable property. It was not necessary for the legislature, when laying down the lex loci, to reserve in express terms a principle of law which is universally recognised. That this general principle was not intended to be disturbed is clearly shown by section 4 (present section 20) which resolves in a particular way an old standing dispute as to the application of the principle.
The preponderance of authority had been in favour of making the domicile of the husband, or at least that of the marriage, govern the rights of parties where the domiciles of the husband and wife are different. The Succession Act, where either of the parties had an Indian domicile, very reasonably submits all their rights both as to movables and immovables, to the territorial law of India. To that extent, the jus gentium or common law of nations, has been set aside or modified.
"From this point of view, it is easy to see why section 4 (section 20) and section 44 (section 21) are kept apart. The two sections deal with different subjects. The former declares the general lex loci of India, the second lays down a special role to govern a particular case. It is not a modification of lex loci, but a declaration of the law in a particular case."
In a later ease2, Mr. Justice Sale has given the following interpretation of the provisions in question:
"In my opinion section 4 (present section 20) and 44 (present section 21) read together should be understood as laying down a general rule as to the immediate effect of marriage in respect of movable property belonging to each or other of the married persons not comprised in ante-nuptial settlement and not as laying down a rule intended to affect the law of succession."
1. Miller v. Administrator-General of Bengal, 1874 ILR 1 Cal 412 (420, 421) (Markby, J.)
1. Hill v. Administrator-General of Bengal, 1896 ILR 23 Cal 506 (512).
