IMMOVABLE PROPERTY

In the private international law of most countries including England, India, the United States and
most countries of the European continent, it is an established rule that in respect of all
transactions relating to immovable and all right over or in relation to immovable property are
ordinarily governed by the law of the situs of the immovables. The reason for the rule is obvious:
convenience and expediency; any other rule would be ineffective as in the last resort the only
effective order that can be passed has to be in accordance with the lex situs of the property.
English law recognized this rule as early as 1845. In Nelson v. Bridport the court observed: ‘The
incidents to real estate, the right alienating or limiting it, and the course of succession to it
depends entirely on the law of the country where the estate is situated.” The same is the position
in Indian law.

MEANING OF LEX SITUS

The most vital question relating to the present discussion is : what is the meaning of lex situs?
Does it mean the domestic law or does it mean the entire law including the rules of conflict of
laws of the country where the property is situate? It is fortunate that most writers on private
international law are unanimous on this point and take the view that lex situs in this context
means the entire law of the country where the property is situate. In the word of Morris, “the
sovereign of the country where land is situate has absolute control over the land within his
dominions: he alone can bestow effective rights over it; his court akone are as a rule, entitled to
exercise jurisdiction over such land. Consequently any decision by an English Court which ran
counter to what the lex situs had decided or would decide would be in most cases a brutum
fulem.

CAPACITY

This is a settled rule in both English and Indian private international laws that capacity of give or
take immovable property is governed by the lex situs of property. Thus if the law of the lex situs
imposes restrictions on foreigners or on a class of property anywhere else in the world would not
be valid. The same is true of the capacity to convey property, the transfer of property may be in
any form. For instances under the law of the United States a person has capacity to convey
property when he completes the age of 21 years, while under the Indian law a person has
capacity to convey property when he attains the age of 18 years conveys land situated in the state
of new York then such a conveyance would bot be valid, as he has no capacity to convey
immovable under the lex situs. On the other hand if a new York domiciled person who had
attained at the age of 18 conveys land situated in India then the conveyance would be valid as
under the law if the situs of the land, he had the capacity to convey the land.

FORMAL VALIDITY

It is an established rule in English and Indian private international laws that formal validity of the
conveyance or any other transaction relating to immovable is governed by the lex situs. Here as
elsewhere the meaning of the lex situs is the same as suggested earlier. For instance if the formal
validity of a conveyance of immovable property situated in India is before the Indian court, then
it would mean the Indian internal law and if the formal validity of a conveyance of immovable
property situated abroad is before the Indian court , then it would mean whether system of law
the lex situs would apply.

A distinction between conveyance and a contract to transfer. In the former case the formal
validity of the transaction must be in accordance with the lex situs of the property but in the latter
case it need not be. For instance, if two Indians enters into a contract for the conveyance of a
house situated in London, it is not necessary that the formalities of contract should be in
accordance with English law. Morris takes the view that such a contract is formally valid “if it
complies with the formalities prescribed by the proper law of the contract or by the lex loci
contractus. The proper law of the contract is usually but not necessarily the lex situs.

MATERIAL VALIDITY

The general rule is that in respect of all transactions regarding immovables, kex situs governs
applies to material or essential validity of the conveyance of immovables. Thus no disposition or
transaction can create an interest in or right over immovable property which is not valid by the
lex situs, even though it is valid by the law of the country where it is made. It is the lex situs
which exclusively governs the tenure, title and descent to immovables as well as the nature of
estates that can be created and what are the incidents of those estates, whether the interests
created infringe the rule against perpetuities or accumulations, whether gifts to charities are valid
and like matters.

The material validity of a contract relating to immovables is governed by the proper law of the
contract.

Indian law is also substantially the same. It is the lex situs which determines the essential validity
of any transaction or conveyance in respect to immovables.