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Report No. 70

13.6. Allahabad case.-

The importance of domicile is illustrated by an Allahabad case1 in which a European, not domiciled in India, but only temporarily residing in India, was held not to be governed by the Indian Majority Act.

1. Rohilkand Bank v. Row, ILR 7 All 490.

13.7. Theories in English law.-

In English private international law, the position is not settled beyond doubt, but one view currently accepted is that the law of domicile governs the contractual capacity of a person.1 In India, this view has been recognised in section 3 of the Majority Act. According to another theory, the law of the place of contract may govern the contractual capacity. According to yet another theory it is "the proper law" which should be applied.

The test of proper law here is an object test and-speaking broadly-means the law of the country with which the contract is most substantially connected. Whichever view is correct, this contr.oversy is not of much importance for the present purpose, because it primarily pertains to the interpretation of the Indian Contract Act, 1872, as read with the Indian Majority Act, 1875. So far as section 7 of the Transfer of Property Act is concerned, the matter is sufficiently stated by the requirement that there must be competence to contract.

1. Cheshire Private International Law, (1970), p. 221.

13.8. Importance.-

That the age of majority is determined by the law of domicile is an aspect which becomes important where the contract is entered into in India by a person not domiciled in India and the law of the country where that person is domiciled, prescribes an age of majority different from that to which the Indian Majority Act applies.1 This aspect was of particular importance in relation to Englishmen, since, in England, until the age of majority was lowered,2 the age was higher than in India-21 years.

1. For a comparative survey, see Hartwig in 15 ICLQ 780.

2. Section 1, Family Law Reform Act, 1969, (English).

13.9. Artificial persons.-

That contractual capacity and the capacity to transfer property is subject to any law for the time being in force is an aspect of particular importance in relation to artificial persons, such as, corporations, and also as regards the trustees of religious and charitable endowments and, of course, the capacity of a person to transfer property may be limited to certain circumstances in other cases, as, for example, in the case of a Hindu widow under Hindu law as unmodified by statute.

13.10. Trusts Act.-

Finally we may note that section 7 of the Transfer of property Act is closely analogous to section 7 of the Indian Trusts Act. The competence to transfer property under section 7 and the competence to create a trust under the Trusts Act are both co-incident with the competence to contract.

13.11. No change.- The above discussion necessitates no change in section 7.

The Transfer of Property Act, 1882 Back

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