LAW OF SUCCESSION – COMPARISON OF ENGLISH AND INDIAN LAW

SWAGAT SEKHAR BAIDYANATH1

SYNOPSIS
When a person dies his assets must be disposed of. It is the function of the law of succession to determine how those assets shall be disposed of. The need for an orderly system for their disposal is essential to the preservation of law and order. There are several methods that might be adopted in disposing of a person’s assets. Firstly, complete freedom on the part of all persons to determine the manner (generally intestacy rules) in which their property shall be disposed of after death. Such a system requires a broad framework of rules as to how a person shall set out his wishes as to the disposition of his property. Finally, a set of rules or laws may prescribe the manner in which a person’s property is to devolve after death. In England under Administration of Estates Act 1925 and in India under The Indian Succession Act 1925, rules laid down to deal with the distribution of assets of those who have not taken advantage of the privilege provided under above first method but only effective to dispose of some not all of their assets. From the last two decades we have seen extreme development of private international law throughout the world. Now, aim and purpose is to ‘compare’ the law relating to succession mainly of England and India, as it is still an open question how far law of succession works in cases where foreign element is involved.

1. A PROLEGOMENON –

World mainly divided into two groups when we talk about law of succession and where one group contains countries of continental Europe and other civil law countries where all matters relating to succession are governed by one single system of law i.e. the law of the nationality of the deceased or the personal law at the time of his death. Now second group contains countries like India, England and other countries which follow the common law traditions adopt the principle of succession under two different system of law where movables under Lex Domicilii and immovable under Lex Situs devolves. The common thing between them is that “property vests in the heirs immediately on the death of the deceased.” Now from the last two decades have been very fruitful in the development of private international law and the preset state of Indian Private International Law is that in some areas there is a total dearth of rules, in some areas rules are so few and scanty that no generalization is possible, in some areas the statutory rules and rules laid down by the courts are at variance and no symbiosis can be made; and a large part of private international law is based on English Law. In this context, the task is not easy. If we confine ourselves to one country then law relating to succession is executed according to the followed personal law of that country only.
1

5th year Student, B.A. LL.B.(Hons.), Hidayatullah National Law University, Raipur (C.G.). The author may be contacted via email at s.sekhar.hnlu@gmail.com.

So in this regard I would like to proceed and try to cover necessary issues with discussion on Law relating to Succession under the following three heads: 1. Administration of estate.For instance if a person dies intestate leaving behind immovable in Country which follow Common Law then devolution to this property would be in accordance with Indian/English internal law. So to obviate this difficulty. 1932 came which laid down that the court has jurisdiction to make a grant of administration in regard to the property of any deceased 2 There are some statutory exceptions to the rule. Succession to movables. Succession to movables. 2. but the appointment of executor has failed for any reason then person next-of-kin can acquire the necessary authority by obtaining letters of administration. it was of no consequence that the deceased was domiciled in England. 2. and thirdly distribution of residue among the heirs. ADMINISTRATION OF ESTATE If a person dies intestate. secondly payment of debts. then devolution to this property would be governed by the Indian Law. a British national dies leaving behind immovable properties in Indian. and the foreign court would not appoint one as he was not domiciled there at the time of his death. such as under the small payment (Administration of Estates) Act. JURISDICTION OF COURTS Until 1932 the English court committed as it was to the ecclesiastical doctrine of presence of property within the jurisdiction. The administrators under English law have three main functions firstly collection of assets of the deceased. person entitled to deal with or distribute the property of a deceased person are who has obtained authorization from the court 2 or a will has been made. 1950. exercised the jurisdiction only if some property of the deceased was within the jurisdiction. 3. the Administration of Justice Act. . This led to injustice as if a person who died domiciled in England leaving behind property abroad faced this difficulty then the England Court would not appoint an administrator as he had left no property in England. Now on the other hand. and 3.

and without further consideration. who then comes to this country and satisfies it that by the proper authority of his country. Thus stated by Lord Penzance In the Goods of Hill:5 “…where the court of the country of the domicile of the deceased makes a grant to a party. 4. ‘Notwithstanding that the deceased person left no estate’ in England.” For instance. if a foreign administrator is incompetent to act as administrator. In the matter of grant of letters of administration or probate. Tr. he has been authorized to administer the estate of the deceased. 7 In the Estate of Leguia. the jurisdiction is conferred on the District Judge and High Courts. and if the domiciliary administrator takes no steps to obtain probate or letters of administration. the grant of administration may be given to 3 4 See S. the English Court will appoint the person as administrator who is considered to be the personal representative of the deceased by his lex domicilii. The English courts generally exercise jurisdiction in granting administration on the basis of presence of assets in England.3 The English courts have always granted administration in respect of not only property that is in England at the time of the death of the deceased but also of any of this property which is brought t to England after his death at any time before a third party had acquired a good title under the lex situs. firstly if at the time of his death the deceased has a fixed place of abode within the jurisdiction. then no grant will be made to him. Now Law of Succession regarding Indian which closely follows English law. 253. 1925. & D. (1934) P. 89 6 In the Goods of D’ Orleans. CHOICE OF LAW Who are the persons entitled to a grant of administration? Considered to be the main question and general rule is that if a person dies domiciled abroad.6 The court also has discretion to make a grant to some other person such as a creditor of the deceased7. So in a conflict of laws case Indian Court may decline to grant a probate or letters of administration merely on the basis that the deceased had ‘a fixed place of abode’ in India. such as a minor. or secondly if movable or immovable property of the deceased is situated within the jurisdiction of the District Judge. The provision relating to grant of probate and letters of administration are contained in the Succession Act.person. to grant power to that person to administer the English assets. 80. 270 5 (1870) 2 P. 2(1) See S. 4 The basis of jurisdiction are two. . (1859) 1 Sw.

the surplus assets are to be distributed among the beneficiaries. The position of grant of administration in respect of immovables situated in England is not so clear. In former case. 5. payment of debts as a general rule these two functions are governed by the lex fori and distribution of the residue among the heirs by the lex domicilii in regard to movables. letters of administration are not required so it is optional. and the lex domicilii of the deceased at the time of his death has noting to do with it. Then second duty is to make payment of the debts of the deceased wherever incurred and it covers all assets of the deceased in the hands of the administrator wherever collected. . would be entitled to the whole or any part of such deceased’s estate. and the lex situs in regards to immovable’s. Buddhists.” The domicile or nationality of deceased is immaterial. Muslims. Administration in narrow sense it includes only the first two functions. collection of assets. After the debts have been paid. other wise liable to account for assets collected by him under the English grant in the character of an English administrator. FUNCTION OF FOREIGN ADMINISTRATOR As soon as probate or letters of administration are granted to a person. Sikhs and Jains on the one side. Administration in broad sense includes the discharge of all the three functions mentioned above viz. The first duty of the administrator is to collect all the locally as well as outside the jurisdiction situated assets of the deceased person with due diligence. The heir of the deceased would be determined on the basis whether he died as a Hindu or as a Muslim and if not then those who are connected with him by marriage or by consanguinity are entitled and apply. Succession Act lays down that grant may be made “to any person. who accordingly to the rules for the distribution of the estate applicable in the case of such deceased. then Section. hence govern by lex fori. 218. Now in the matter of grant of letters of administrations Indian law makes a distinction between Hindus. all properties of the deceased which at the time of his death are situated in England vest in him. and other persons on the other.the foreign administrator himself or to any attorney who had been authorized to apply for such a grant. This is done in accordance with the lex fori.

11 In Vishvanatha v.Here also the Indian private international law closely follows the English private international law. On getting the grant the first duty of the administrator is to collect the assets of the deceased wherever situated. the validity of disposition. Syed Abdul Wazid. . revocation of will. Krishnan lived in England from 1920 to 1950 where he died intestate in England in 1950. The court followed the decision of the English case. Re Berchtold12 and held that since the interest left by the deceased was immovable. Bruyere. The Indian courts do not recognize a foreign administrator for any purpose of administration of assets of the deceased situated in India. power of disposition. and this jurisdiction is not affected by the domicile or nationality of the deceased as entirely based on the situs of assets within the jurisdiction. The Kerala High Court question came for consideration that one Dr.C. 220 and 227. 12 (1923) 1 Ch. 6. the succession to it would be governed by the lex situs even if the property is converted by the 8 9 See S. 1. the Succession Act. The law of domicile or nationality of the testator has absolutely nothing to do with any of the matters10 relating to capacity to make will. Under English law the general rule is that all aspects of succession. The Supreme Court11 observed that succession to immovables is governed by the lex situs of the immovable property. POSITION OF FOREIGN ADMINISTRATOR The Foreign courts have similar power to appoint administrators of assets situated in England. Now under the Indian private international law is substantially the same. on appeal (1902) 1 Ch. intestate or testamentary.” 10 In Pepin v. 192. 1925. 504. the application of his movable property to the payment of his debts is to be regulated by the law of India.8 Then section 3249 provides for conflict of laws cases and lies down that the lex fori will govern the matter. SUCCESSION TO IMMOVABLE The English and Indian Private International Laws follow the principle that succession to immovables is governed by the lex situs. He built a comfortable practice at Sheffield. are regulated by the lex situs when a person dies leaving immovable properties. 1963 S. This section runs: “(1) if the domicile of the deceased is not in India. 7. (1990) 2 Ch. 24.

Mohammedan. it seems. Section 5(2) of the Succession Act. Law of testamentary succession in Indian is contained in Part VI of the Succession Act. directly or indirectly. contains a rule of conflict of laws. 8. and not to be controlled by the so-called intention of the testator. the Indian court is bound to apply the lex fori. 1925.. the succession Act. revocation of will. 74 to 111 of the Succession Act 1925. rules of construction as laid down in ss. 5 of the Act. Sikh or Jain. except the Muslims. in India. viz. Succession Act. Buddhist. Under the Indian Private international law also. and constituted the law of testamentary succession in India. movable as well as immovable. To the Hindus it applies with some modifications. 1925. . The Indian courts have all along taken the view that intention of the testator is to be carried out. though different rules of succession apply to members of each community in the case of intestate succession. 74 to 111. 1925 and relating to election is ss. It appears that whenever a will of deceased person in respect of immovable’s situated in India comes for construction before an Indian court. all matters relating to capacity to make will. power of disposition and the validity of disposition and like are governed by the lex situs. succession Act. As to the other communities. Provisions relating to construction of wills are laid down in ss. The lex fori would apply whether the will was executed in India or elsewhere. and applies to all communities. SUCCESSION TO MOVABLE So for as the testamentary succession is concerned. 180-190. It lay’s down that succession to the movables of a deceased person is to be regulated by the law of the country in which such person had his domicile at the time of his death. 1925. as has already been noted.. But clear and unambiguous dispositive words are to be given effect to.administrators into cash. it applies fully. This provision was enacted at a time when the British Government in Indian was least inclined to interfere. this provision would mean that the succession to the property. members of all communities are governed wholly or partly by one law. 1925. This follows not merely from the provisions contained in these sections but also from the general rule laid down in sub-section (1) of s. But the application of this provision has been excluded in cases the deceased in a Hindu. i. such as Christians and Parsis.e. In the modern context. with the personal laws of Hindus and Muslims.

as English courts also exercise jurisdiction on this basis. Indian courts have declined to exercise jurisdiction in a case of conflict of laws case. The situation with regard to jurisdiction of foreign court is that the court of the country where the deceased died domiciled have jurisdiction to determine succession to all movables whether situated. though courts do not recognize that the courts of domicile have exclusive jurisdiction. but in view of Section 5(2). if a Hindu or Muslim had died domiciled abroad. then Indian courts have jurisdiction to determine the validity of his will and allied matters relating to testamentary succession. such as when the courts of the country where assets are situated requires a grant of administration from the court of domicile for the deceased. based on fixed place of abode of the deceased within the jurisdiction. 9. Similarly. Whereas the Indian courts exercise jurisdiction either on the basis of presence of assets within the jurisdiction. But in case he died leaving behind assets in India. the court may exercise jurisdiction on the basis that the deceased died domiciled in India whenever it is called upon to exercise jurisdiction in the interest of justice.r. It may be conjectured that the English law would concede jurisdiction to courts of the country where movables are situated even if the deceased is not domiciled there. then succession to his movables will be regulated by his lex domicilii at the time of his death. Indian court does not have as wide a jurisdiction as the English court has under the Act of 1932 to grant administration in respect of ‘any deceased person’. so has jurisdiction to grant administration and to determine beneficial distribution of property. JURISDICTION In the English law of succession is usually termed as beneficial distribution of property. or that the deceased had a fixed place of abode at the time of his death within the jurisdiction. It is clear that the Indian court would not assume jurisdiction to determine succession to the movables of the deceased who died domiciled elsewhere and left no assets in India.situated in India will be regulated by the personal law of Hindus and Muslims. The Indian position w. But this provision cannot be construed to mean that the immovable property of a Hindu or Muslim situated abroad would also be governed by the personal law. and not by the lex situs of the property.t is that there is no reported decision of Indian Court as to on what basis the Indian Courts would . in respect of movables. In short. this provision cannot affect the rules of private international law. as the case may be.

15 See S. 1925. broadly construed. Practically all the writers of international law are unanimous on this point: Westlake. then it should apply the personal law of the deceased Hindu.C. an Indian Hindu who dies domiciled in New York leaving behind his assets in India. In this connection the main question is: suppose. or of the situation of movables at the time of his death 13. Pipon. that will be the law of his domicile. The answer will be in affirmative. irrespective of the fact as to the place where he was born. It is the lex domicilii which determines the heirs who are entitled to take the relative proportion to which they are entitled to. the rights of a surviving spouse. as in his case. If the English court applies any other law.2 (1) (b) Hindu Succession Act. Lakshmi 1974 S.recognize the jurisdiction of foreign courts to determine succession to movables.In England intestate succession to movable is governed by the law of the domicile of the deceased person at the time of his death. Suppose. 25. if we ignore his nationality.CHOICE OF LAW 10. will the Indian courts accept the determination of succession in accordance with the lex domicilii of the deceased? The question becomes complicated as for Hindus and Muslims. (1744) Amb.1 Intestate succession: . It seems to be clear that Indian intestate succession to movables is governed by the lex domicilii of the deceased at the time of the death. the Buddhist are included in the definition of the term ‘Hindu’. they are governed by their personal law. which is the law of their community. 5(2). 14 See S. or died. 1956. In Shankeran v. then succession to 13 In Pipon v. then the Indian courts will not accord recognition to such assumption of jurisdiction. That the Indian court should accept the assumption of jurisdiction by the foreign court on the same basis on which it assumes jurisdiction. 59-120. ss. the right of representation. a Burmese Buddhist dies in Burma leaving behind movable in India.14 But will it equally apply to Hindus and Muslims? Under the influence of English Private international law it is often forgotten that nationality is an important connecting link in personal matters in India. . 10 . there is nothing like lex domicilii. 15 Will succession to his property be regulated under Hindu law? in the converse case. strictly speaking. When the English court determines succession on the basis of the lex domicilii of the deceased. Succession Act. 1964. the liability of the distributes for unpaid debts are like matters. an Indian Hindu dies domiciled in England leaving behind assets in India.

and succession to movables by the law of the deceased’s last domicile. then a grant of probate in England is essential and so far as the administration is concerned it is governed by the lex fori. See Chapter III. 16 17 18 19 See Hindu Succession Act.his property should be regulated not by his lex domicilii at the time of the death but by the law of his nationality i. but then all questions relating to beneficial succession must be decided in accordance with the law of the domicile of the deceased. Now law of succession in preset state of Indian Private International Law is not a deficiency of rules.The English testamentary succession to movables is also governed by the law of the country where the deceased was domiciled at the time of his death. and other laws are made relevant by statute if the question is one of formal validity. There is the different among Shias and Sunnis and other sects of Muslims. If a deceased person domiciled elsewhere dies leaving behind assets in England. 1956. See Chapter II.2 Testamentary succession: . Hindus are governed by their own law of succession16.19 10. It should not be ignored that in Indian intestate succession differs from community to community. Parsis by the Parsi law of succession18 and Christians and others by their own laws of intestate succession. in some areas rules are so few but straight forward on its application and Indian law comparison with English law of succession is relatively similar. Hindu Law. Succession to immovables is governed by the lex situs. But in succession under wills it may sometimes be necessary to look at the law of the testator’s domicile at the date when the will was executed. Succession Act. . 1925. CONCLUDING REMARKS Few qualifications still needed to be mad to these propositions so far as intestate succession is concerned. The same would be true of an Indian Muslim. Muslims by Muslim Law of succession17. In other words.e. 1925. the executor must ascertain as to who are the persons entitled to succeed and in what proportion they would take the property under the law of the domicile. Succession Act.

Sign up to vote on this title
UsefulNot useful