TRANSFER OF PROPERTY UNDER CONFLICT OF LAWS

The classification of property into movables and immovables is not co-extensive with the internal law classification between reality and personality. The importance of the distinction between movables and immovables is most apparent in the field of succession because succession to movables is in general governed by the lex domicilii of the deceased whereas succession to immovables is in general governed by lex situs. But, the distinction may also be important in transaction inter vivos because such transactions are governed by lex situs so far as immovables are concerned. The Indian private international law also classifies property into movable and immovable.

Transfer of property under conflict of  laws

Whenever a court is called upon in a conflict of laws case to adjudicate any question relating to ownership, possession , or any other right in a property , its first task is to determine whether that property is movable or immovable. It is now an accepted principle of private international law the only law that can effectively answer this question is the law of the country where the property is situated. The determination of the question as to whether a particular property is movable or immovable should present no difficulty. But, difficulties arise because different systems of law characterize property differently.  English, Indian and some other private international laws take the view that the final decision should be left to the law of the country where the property is situate or lex situs of property. In English private international law, it is well settled that if there is a conflict between the lex situs and the lex fori as to whether a particular property is movable or immovable , it is the lex situs which determines the issue. The same seems to be the position in India as well.

How sometimes the matter may become confusing is illustrated by Re Berchtold [1], where a domiciled Hungarian who was entitled to an interest in an English freehold land subject for sale but yet not sold, died intestate. The English rule of conflict of laws is that intestate succession to immovables is governed by lex situs and to movables by lex domicilii. The question before the court was that whether the freehold interest was to be characterized as movables or immovables. In the private international laws of most of the countries including England, India , The United states of America and most other countries of the world, it is an established rule that in respect of all transactions relating to immovable property and all right over or in relation to immovable property are governed by the law of situs [2]. The English courts have held that they have no jurisdiction to adjudicate in respect of any matter relating  to immovable property situated abroad even though the parties may be resident or nationals of England or domiciled there[3].  In Deschamps vs Miller[4], the father of the plaintiff had made a settlement of some immovables situated abroad in favour his wife and others. When the plaintiff challenged the validity this settlement in an English court, the court declined to exercise jurisdiction. Under the law of the united States, a person has capacity to convey property when he completes the age of twenty-one years while under Indian Law, a person has capacity to convey property when he attains the age of eighteen years.

Personal jurisdiction in respect of foreign immovables

To the general rule is that the lex situs governs all matters relating to immovable property certain exceptions are recognized to this rule. One of the exceptions that courts of equity have recognized from earliest times is relating to actions in personam. The reason for this rule is given in the case of Ewing vs orriewing[5]. The equitable doctrine of actions in personam regarding immovables situated in foreign countries has been exercised by the Indian courts as well. Proviso to section 16 CPC says : provided that a suit to obtain relief respecting or compensation for wrong to immovable property held by or on behalf of the defendant may where the relief sought can be entirely obtained through his personal obedience be instituted either in the court within the local limits of whose jurisdiction the property is situated or in the court within the local limits of whose jurisdiction the defendant actually and voluntarily resides or carries business or personally works for gain. One view is that the provision does not apply to property situated outside India [6]. However, the Bombay high court in Mahadev vs Ramchandra[7], said that even if the proviso to s.16 under CPC is considered to be not applicable to cases where land is situated outside India, the English law rule relating to jurisdiction in personam applies in India if relief can be obtained through the personal obedience of the defendant.  In Prithvi Singh vs Ganesh Prasad Singh[8], a suit for accounts and possession of immovable property ( subject to a usufructuary mortgage) partly situated within the jurisdiction of the court and party outside the jurisdiction was filed against the defendant within the jurisdiction. The court said that it had jurisdiction to decree for possession of that property though it could pass a decree for possession of that property alone which was within its jurisdiction. 

SUCCESSION TO IMMOVABLE PROPERTY

When a person dies leaving behind immovable property, then it is the lex situs which determines / decides the matter relating to capacity to make will, revocation of will , power of dispossession, validity of dispossession. Under English law the general rule is that all aspects of succession, intestate or testamentary are regulated by the lex situs. Under the English private international law most wills are saved from formal invalidity as a testator has a choice of about seven systems of laws and if a will is formally valid under any one of them, then it is formally valid. There is some controversy as to which law governs the construction of wills. Should it be regulated by the lex situs or by lex domicilii of the deceased as is the rule in respect of wills of movables or should it be governed by some other system of law?  Cheshire fortifies his formulation with the flowing argument: the adoption of this principle does not infringe any local rule of the lex situs nor does it derogate from the sovereign power of the country in which the land is situated. If the rules of les situs makes it illegal or impossible to give effect to the will as construed by the system of law intended by the testator, the general principle must perforce give away and the construction adopted must be that of lex situs.

Another question that arises relating to wills is of election. Its is a settled rule of English private international law that whenever a beneficiary is put to his election the matter is governed by the law of testator’s domicile[9]. The rule will not apply if the intended device is illegal by the foreign lex situs[10]. The rule is applicable to English heirs only; it is not applicable to heirs to foreign immovable property. Further, the question of election by a foreign heir as was matter of English law can arise only when the distribution as distinguished from the administration of the testator’s property falls to be determined by the English law or when the testator dies domiciled in English leaving movables either in England or elsewhere whose distribution depends on the lex domicile.  

The Indian private international law is the same. Section 5(1) of Indian succession Act, 1925 states as “ Succession to the immovable property in India of a person deceased shall be regulated by the law of India wherever such person may have had his domicile at the time of his death.”

In Vishwanathan vs Syed Abdul Wazid[11], the SC observed that succession to immovables is governed by the lex situs of the immovable property. The question came in Kerala High Court in Sankaran Govindan vs Lakshmi Bharti[12],  one Dr Krishnan lived in England from 1920 to 1950. He died intestate in England in 1950. He built a comfortable practice in Sheffield. He also got employment in the National Health Scheme. He purchased a building there in which he housed his evening surgery. At the time of his death he left his house in England and some properties, movables as well as immovables in India. The court found that he died domiciled in India. In respect of his Sheffield situated properties, letters of administration were obtained by miss Woodliff, his private secretary and Arksey , an attorney.  The entire assets of Dr. Krishnan both movable and immovable were sold by the administrators and sale proceeds were divided half-half between a brother and sister of Sankaran who survived him. The main question which came before the Kerala court was that the heirs of late Sankaran in respect of his Sheffield situated immovable properties were to be reckoned under English law ( lez situs) or Indian law ( lex domicile)? To this , Justice Raghavan stated that succession to immovables is governed by lex situs and therefore the English law of succession applied. Since the assets of the deceased were converted to cash, it was agreed before the English court that the property being converted to movables the lex domicili should govern succession.

SUCCESSION TO MOVABLE PROPERTY

Intestate succession to movables is governed by the law of domicile of the deceased person at the time of his death, irrespective of the fact as to the place where he was born or died or of the situation of movables at the time of his death[13].  It is the lex domicile which determines the heirs who are entitled to take the relative proportion to which they are entitled to the right of representation , the rights of surviving spouse, the liability of the distributes for unpaid debts etc. But, will it equally apply to Hindus & Muslims? Under the influence of English private international law it is often forgotten that nationality is an important connecting factor or link in personal matters in India. It should not be ignored that in India intestate succession differs from community to community. Hindus are governed by their own law of succession , Muslims by their own law of succession, Parsis by the Parsi law and the Christians by their own law of intestate succession.  

Testamentary succession to movables is also governed by the law of the country where the deceased was domiciled at the time of his death. Thus, if a deceased  person domiciled elsewhere dies leaving behind assets in England , then a grand of probate in England is essential and so far as the administration  is concerned it is governed by the lex fori but all questions relating to beneficiary succession must be decided in accordance with the law of domicile of the deceased. With minor exceptions there is one law of testamentary succession in India. Muslims are governed by their own law of testamentary succession and provisions relating to testamentary succession in Act of 1925 do not apply to them. However, grand of probate and letter of administration apply to them as well.  If the testator’s domicile is the same at the time of making of the will as well as at the time of his death, there is no difficulty. The lex fori is immaterial. But, if the domicile of the testator at the time of death has changed and he died domiciled at a different place then, whether the domicile that he had the time of his death would apply or whether the domicile that he made the will would apply? So far, there is no English decision on the matter.

CONCLUSION

The rules of English and Indian Private International law could hardly be considered satisfactory. The question that remains is that should every property ; movable or immovable, tangible or intangible have a situs? M.Mann seems to take the view that it is impossible to ascribe a situs to everything. Rule79 in Dicey’s  conflict of laws is accordingly framed as the situs of things is determined as follows:

  • Choses in action generally are situate in the country where they are properly recoverable or can be enforced.
  • Land is situate in the country where it lies.
  • Subject to the exceptions mentioned a chattel is situate in the country where it can be found at any given time.

The exceptions are as follows:

  1. A merchant ship may at some time be deemed to be situate at her port of registry.
  2. A civil aircraft may at some time be deemed to be situate in its country of registration.

At the time of characterization once the lex situs of property characterizes it as movable or immovable it is impossible in the next stage to apply any further distinction of internal law.  In the private international law of most countries, it is an established rule that in respect of practically every transaction relating to immovable property , the lex situs governs. There is conflict of laws of various countries. Most of the difficulties arise because of the situs of movables can be changed easily.


[1] (1923) 1 ch 192

[2] Under the laws of Italy, Spain, Sweden, Finland and Germany , succession to immovables is also regulated by the law of the nationality of the deceased.

[3]  British South Africa co vs companhia de Mocamkique (1893).

[4] IBID

[5] (1883) 9 A.C 34

[6] Krishnaji vs Gajanan (1909) 33 Bom 373.

[7] 1922 Bom 407

[8] 1951 All 462

[9] Trotter vs Trotter(1828)

[10] Brown vs Gregson (1920) A.C 860

[11] 1963 S.C 1

[12] 1964 Ker 244

[13] Pipon vs Pipon (1744).

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