JURISDICTIONAL ISSUES UNDER ISA, 1925 IN RESPECT

OF SUCESSION TO PROPERTY
PROJECT
SUBMITTED TO

TAMIL NADU NATIONAL LAW SCHOOL

TIRUCHIRAPALLI

In Fulfilment of the Internal Component

FAMILY LAW
BY
S. MYTHREYE
(REG NO: - BA0130040)

II YEAR, B.A.L.L.B., (HONS)

Under the Guidance and Supervision Of

PROF.DEEPIKA

1
ACKNOWLEDGEMNET

I am immensely happy to express my heartfelt thanks to our Vice Chancellor Ms. Kamala
Shankaran, for having given me this opportunity to do a doctrinal Research project on
“JURISDICTIONAL ISSUES UNDER ISA, 1925 IN RESPECT OF SUCCESSION TO
PROPERTY” at under graduate level.

With sense of gratitude, I would like to thank Deepika, Associate Professor of Law, Tamil
Nadu National Law School, Tiruchirappalli - 620 009, for his valuable guidance and
encouragement given to me at every stage of this small Doctrinal Research work.

THANK YOU AGAIN TO ALL WHO HELPED ME.

2
DECLARATION

I S.Mythreye, Registrar Number BA0130040, hereby declare that this project work entitled
JURISDICTIONAL ISSUES UNDER ISA, 1925 IN RESPECT OF SUCCESSION TO
PROPERTY has been originally carried out by me under the guidance and supervision of
Miss.Deepika, Associate Professor of Law, Tamil Nadu National Law School,
Tiruchirappalli - 620 009. This work has not been submitted either in whole or in part of any
Degree / Diploma in this Institution or any other Institution/University.

Place: Trichy
Date: 30-05-17 S.Mythreye.

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TABLE OF CONTENTS

Index of Authorities……………………………..……………………………………............6

I. Statutes/ Convention/International Agreement Referred……….………………….....6

II. List of Cases…………………………………………………..……...........................6

List of Abbreviation………………………………………………………………..………....7

Chapter I………………………………………………………………………………......…..8

1. Introduction……………………………………………………………………..………….8

1.1. Research Objective………………………………….......……………………………......8

1.2.Research Question……………………………………………………………………...…8

1.3.Research Methodology………………………………………………………………...….8

Chapter II………………………………………………………………………………..….....9

2. Succession To Property..........................................................................................................9

2.1. Domicile Of Succession.....................................................................................................9

Chapter III………..………………………………………………………………………….11

3. Jurisdiction As To Succession Of Movable And Immoveable Property Under Isa...........11

3.1.Person Claiming Right By Succession To Property Of Deceased May Apply For Relief

Against Wrongful Possession.............................................................................................11

3.2.Inquiry Made By Judge......................................................................................................11

3.3.Jurisdiction In Case Of Minor............................................................................................12

3.4.Objection To The Jurisdiction………………………………………………………........12

Chapter IV……………...……......…………………………………………………...............14

4. Conflict Of Laws And Succession Right...........................................................................14

4.1.Hague Convention..............................................................................................................14

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 4.2.Conflict Of Law And Jurisdiction..........................................................................14

4.3.Characterization......................................................................................................15

4.4.Doctrine Of Forum Convenience...........................................................................16

4.5.Difference Between Succession And Administration............................................17

4.6.Insolvency And Incorporation................................................................................17

Chapter V.................................................................................................................................18

5. Conclusion..........................................................................................................................18

Bibliography ................................................................................................................19

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INDEX OF AUTHORITIES

I. Statutes/International Conventions/ International Agreements Referred

1. ISA, 1925.
2. CPC, 1908.
3. Hague Convention

II. List Of Cases

1. Smith v. Crooin. 7 Fla. 81.

2. Harshad Chamanlal Modi Vs DLF Universal & Ors, Civil Appeal No 2726 of 2000.
3. Maltese Marriage case.
4. India TV Independent News Service (P) Ltd., V. India Broadcast Live LLC and
others' 2008) 22 CLA BL Supp 37 (Del).
5. Kusum Ingots & Alloys Ltd., V. Union of India, (2004) 61 CLA 136 (SC)
6. Suganchand Bhikamchand v Mangibai Gulabchand, (1942) 44 BOMLR 358

6
 List of Abbreviations

ISA Indian Succession Act

SC Supreme Court
Pg page
COL Conflict Of Laws
CPC Civil Procedure Code

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 CHAPTER-I

1. INTRODUCTION

The Indian Succession Act, 1925 applicable only to the intestate succession and testamentary
succession. The matter of jurisdiction has more jointly with private international law since it
is limited by the both movable and immovable property. Indian law is determined by the
person domicile and where the property is located. The laws are directed by both the Indian
Succession Act and Private International Law. It is certainly not only the most conservative
part of the civil law, but also one of the parts that most profoundly reflects and integrates the
traditions and customs of the country whose legal system it serves, even the character and the
”way of being” of the nation to which it belongs. It is concerned with maintaining and
strengthening this posterity harmony, fixing what must represent reasonableness and family
ethics. It is, therefore, closely linked to the idea of fairness and morality. These relate both to
the inheritance author individual as well as, equally, to those who make up his/her family.
This paper is dealt with the jurisdictional issues of succession to property whereas, its
domicile also discussed. The laws of the forum will be decided by the doctrine of choice of
law or forum convenience.

In chapter II the paper the researcher has discussed about the succession and the types of
property. In chapter III deals with the matter of jurisdiction and determination of property. In
chapter IV it is discussed about conflict of laws and succession right.

1.1.Research Objectives:
1. To examine the jurisdiction across the succession to property along with conflict
of laws.
2. To know about the factors that determines legal aspects of succession to property
under Indian Succession Act,1925.
1.2.Research Question:
1. What are the jurisdiction issues to determine the succession to property?
2. How Conflict of Laws is related to succession to property?
1.3.Research Methodology:
The researcher has undergone the doctrinal method of research work in analysing the
jurisdictional issues under ISA, 1925 in respect of succession to property.

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 CHAPTER II

2. SUCCESSION TO PROPERTY

Succession is the transmission of the rights and obligations of the deceased to the heirs.
Succession signifies also the estates, rights, and charges which a person leaves after his death,
whether the property exceeds the charges or the charges exceed the property, or whether he
has only left charges without any property. The succession not only includes the rights and
obligations of the deceased as they exist at the time of his death, but all that has accrued
thereto since the opening of the succession, as also the new charges.
Succession can be of two types. Such as testate and intestate. Intestate Succession is used to
denote the laws relating to inheritance. The property of a person, on his or her death, in
absence of instructions left by him or her with respect to its devolution, devolves in
accordance with the law of intestate succession to which the deceased was subject to at the
time or his or her death. Testamentary succession on the other hand refers to devolution of
property through a testament or a Will. A Will that is capable of taking effect in law governs
succession to the property of a person after his or her death in accordance with the rules laid
down in the laws governing testamentary succession to the property of a person to which he
or she was subject at the time of his or her death. Diversity prevails in the laws of
testamentary succession also, yet it is not as varied as in case of laws of inheritance or
intestate succession.1
2.1. DOMICILE OF SUCCESSION

This term, as distinguished from a commercial, political, or forensic domicile, means the
actual residence of a person within some jurisdiction, of such a character as shall, according
to the well-established principles of public law, give direction to the succession of his
personal estate.2 It is defined under part II of ISA,1925. The Domicile of the deceased plays
an integral role in determining the method of devolution of his property. Halsbury defined
‘domicile' thus: “A person's domicile is that country in which he either has or is deemed by
law to have his permanent home.” S.5 of the Act categorically states that succession to the

1
Blacks online Law Dictionary, Second Edition: What is SUCCESSION? definition of SUCCESSION (Black's
Law Dictionary).
2
Smith v. Crooin. 7 Fla. 81.

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movable property of the deceased will be governed by the lex loci as per where he had his
domicile at the time of his death; whereas succession to his immovable property will be
governed by the law of India (lex loci rei sital), no matter where he was domiciled at the time
of his death. Also, S. 6 further qualifies this provision by stating that a person can have only
one domicile for the purpose of succession to his movable property. It must be noted that
domicile and nationality differ from each other - domicile deals with immediate residence,
whereas nationality implies the original allegiance borne by the person. S. 15 lays down that
upon and during subsistence of marriage, the wife acquires the domicile of her husband
automatically.3

3
Christian law of succession https://www.lawteacher.net/free-law-essays/property-trusts/christian-law-of-
succession.php (last visited on 13 May 2017 (N.T.M))

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 CHAPTER III

3. JURISDICTION AS TO SUCCESSION OF MOVABLE AND IMMOVEABLE

PROPERTY UNDER ISA

It is defined section 5 and 6 of ISA is the succession to the moveable property is regulated by
the rules which govern, in France, the succession to the moveable property of an Englishman
dying domiciled in France, and the succession to the immoveable property is regulated by the
law of India. One domicile only affects succession to moveable. A person can have only one
domicile for the purpose of the succession to his moveable property.4 Succession to moveable
property in India in absence of proof of domicile elsewhere. If a person dies leaving
moveable property in India, in the absence of proof of any domicile elsewhere, succession to
the property is regulated by the law of India.

3.1. PERSON CLAIMING RIGHT BY SUCCESSION TO PROPERTY OF

DECEASED MAY APPLY FOR RELIEF AGAINST WRONGFUL
POSSESSION.

If any person dies leaving property, moveable or immoveable, any person claiming a right by
succession thereto, or to any portion thereof, may make application to the District Judge of
the district where any part of the property is found or situate for relief, either after actual
possession has been taken by another person, or when forcible means of seizing possession
are apprehended. Any agent, relative or near friend, or the Court of Wards in cases within
their cognizance, may, in the event of any minor, or any disqualified or absent person being
entitled by succession to such property as aforesaid, make the like application for relief.

3.2.INQUIRY MADE BY JUDGE:

The District Judge to whom such application is made shall, in the first place, examine the
applicant on oath, and may make such further inquiry, if any, as he thinks necessary as to
whether there is sufficient ground for believing that the party in possession or taking forcible
means for seizing possession has no lawful title, and that the applicant, or the person on
whose behalf he applies is really entitled and is likely to be materially prejudiced if left to the
ordinary remedy of a suit, and that the application is made bona fide. If the District Judge is
satisfied that there is sufficient ground for believing as aforesaid but not otherwise, he shall

4
Sec. 5 & 6 of ISA,1925

11
summon the party complained of, and give notice of vacant or disturbed possession by
publication, and, after the expiration of a reasonable time, shall determine summarily the
right to possession (subject to a suit as hereinafter provided) and shall deliver possession
accordingly: Provided that the Judge shall have the power to appoint an officer who shall take
an inventory of effects, and seal or otherwise secure the same, upon being applied to for the
purpose, without delay, whether he shall have concluded the inquiry necessary for
summoning the party complained of or not.5

3.3. JURISDICTION IN CASE OF MINOR:

Court of Wards to be made curator in case of minors having property subject to its
jurisdiction.-Nothing in this Part shall be deemed to authorise any disturbance of the
possession of a Court of Wards of any property; and in case a minor, or other disqualified
person whose property is subject to the Court of Wards, is the party on whose behalf
application is made under this Part, the District Judge, if he determines to summon the party
in possession and to appoint a curator, shall invest the Court of Wards with the curatorship of
the estate pending the proceeding without taking security as aforesaid; and if the minor or
other disqualified person, upon the adjudication of the summary proceeding, appears to be
entitled to the property, possession shall be delivered to the Court of Wards. The High Court
shall have concurrent jurisdiction with the District Judge in the exercise of all the powers
hereby conferred upon the District Judge. no High Court, in exercise of the concurrent
jurisdiction hereby conferred over any local area beyond the limits of the towns of Calcutta,
Madras and Bombay shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or
Jaina or an exempted person, receive applications for probate or letters of administration until
the State Government has, by a notification in the Official Gazette, authorised it so to do.

3.4.OBJECTION TO THE JURISDICTION:

It is a cardinal principle of civil law that all suits have to be instituted at the court of lowest
grade competent to try it. Subject to this, all suits in respect to immovable property must be
instituted at the court where the property is situated. In case of suit where relief is claimed

5
Indian Succession Act,1925, Pg.68 of 123
see.,http://districtcourtsnamchi.nic.in/laws/indian_succession_act_1925.pdf (last visited on 10 May 2017
(N.T.M))

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against any person, must be instituted in the court within the local limits of which the person
resides, or carries on business or works for gain.6

Section 21 of the Civil Procedure Code, 1908 specifies that all objections to the jurisdiction
of court have to be field in the trial court at the earliest possible opportunity. Sub Section (1)
and (2) of Section 21 deal with the territorial and pecuniary jurisdictions of civil courts,
respectively. No appellate or revisional court would entertain any objection to the
jurisdiction, unless the objection is filed:

 In the court of the first instance;

 At the earliest possible time. In any case, the objection has to be filed before
settlement of issue.

Harshad Chamanlal Modi Vs DLF Universal & Ors,7the Hon’ble Supreme Court dealt with
this issue. In that case, the Petitioner (Plaintiff) filed one civil suit in Delhi High Court for
recovery of possession of immovable property from the respondent based on a contract which
provided exclusive jurisdiction to the Delhi Courts. When the Defendant filed written
statement, they accepted the jurisdiction and as such there was no issue regarding jurisdiction
of the court. On permission, the objection as to the jurisdiction was raised. On that basis, one
issue was formed regarding jurisdiction. On the basis of situs of the property at Gurgaon, it
was decided that the Delhi High Court had no jurisdiction to entertain the suit. Revision
application also failed. However, the jurisdiction over the subject matter goes to the root of
the matter. If the court does not have any jurisdiction over the subject matter, the suit cannot
proceed. If the suit is instituted in such a court the proper course of action would be to return
the plaint for its presentation at the proper court. The appellate court may entertain objection
only when serious prejudice happened due to wrong jurisdiction.

6
C.K.Takwani, “ Civil Procedure code” 1908, 13th ed., eastern book publications, 2015.
7
Civil Appeal No 2726 of 2000.

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 CHAPTER IV

4. CONFLICT OF LAWS AND SUCCESSION RIGHT

Whenever there is a foreign element the issue of private international law arises. It is related
with the choice of law as well as it is a domestic law. Generally, deals with the place of the
jurisdiction. Dispute related to the property in another jurisdiction or geographical area then it
is an issue involving foreign element because the one of the party may be citizen foreign of a
foreign country.

(i) Lex fori – lex forum:

Only Indian Law is applicable based on Indian urgent even though foreign
element is involved.
(ii) Lex domicile:
This law is applicable only when the dispute has extra territorial effects.
(iii) Lex loci celebration:
This law of the land where the contract of marriage has been happened
(iv) Lex causi:
Law that govern the dispute where the cause of action has been happened.
4.1. HAGUE CONVENTION:
The features of the Convention's rule were designed not to harm survivors, but rather
to ameliorate the difficulties of "conflicts in time" for testators-it allows them to
clarify an otherwise confusing legal situation that might otherwise be settled only
after their death through painful and costly litigation. Yet each may also leave
survivors who feel they have been victimized, however unintentionally, by the
Convention's rules. Those placed at risk are close family members whose interests the
testator seeks to defeat. Their vulnerability arises because the Convention provides
that a permissibly chosen law will govern all succession rights, including those
imposed by law for the protection of survivors. 8 This provide flexibility for both
member and non-member and sets as a origin for source of conflict of laws.
4.2.CONFLICT OF LAW AND JURISDICTION
The source and power of jurisdiction is given under Civil Procedure Code, 1908. All
civil court has jurisdiction unless it is barred by any legislation sec. 9 of CPC. Hence,

8
CAROL S. BRUCH, The Hague Convention On The Law Applicable To Succession To The Estates Of
Deceased Persons: Do Quasi-Community Property And Mandatory Survivorship Laws Need Protection?

14
 no court enjoys the absolute jurisdiction it is limited by higher judiciary.9 Jurisdiction
will be decided by
1. Party autonomy
2. Based on cause of action a closely connected forum or jurisdiction.

The principle of lex loci celebrationis is applied and decided it in favour of maltese. She is
widow brought an action for a share in her deceased husband’s landed property in French
court but the property was located in france. Later they applied the French law of domicile at
the time of death husband was domiciled in france. So this involves a foreign element.
Because property in france and the lex loci celebrationis is in England.10

4.3. CHARACTERIZATION
In succession involving both movable and immovable property the former would be
decided by law of domicile and lex situs. In case of succession the law is applicable to
according to property. Movable property is by lex loci domicile and immovable
property is by lex situs.11

Power of characterization:

1. Relevant issue
2. Selection of rule of conflict of law which lays down nationality, domicile,
marriage
3. Identification of system of law which is tied by connecting factor.
4. Procedural and substantial law under COL
5. Time factor
6. Incidental question

9
Supra note 7
10
Refer, Maltese Marriage case.
11
DAN ANDREI POPESCU Ph.D Associate Professor, “Guide on international private law in successions
matters”See., http://old.just.ro/LinkClick.aspx?fileticket=Sr4HhCRh6zU%3D&tabid=2980 (last visited on 20
May 2017(N.T.M))

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 4.4. DOCTRINE OF FORUM CONVENIENCE

The forum conveniens12 is that which is having the jurisdiction convenient to all to decide the
case. India TV Independent News Service (P) Ltd., V. India Broadcast Live LLC
and others'13 It was held that the legal position as regards forum non conveniens is that a stay
on the ground of forum non conveniens would be granted where a court is satisfied that there
is another available forum having jurisdiction. Also the plaintiff's choice of forum is usually
not disturbed unless the balance of convenience is strongly in favor of the defendant. In
determining whether a more appropriate forum exists, connecting factors, such as those
effecting the convenience of parties, expenses involved and the law governing relevant
transactions are to be looked into. The mere fact that a part of the cause of action has arisen
within the jurisdiction of the court may itself not be considered to be a determinative factor
conflicting the court to decide the matter on merits. In determining which of the available
forums is the forum conveniens in a given matter, the convenience of all the parties had to be
seen.

In 'Kusum Ingots & Alloys Ltd., V. Union of India14 the Supreme Court held that even if a
small part of the cause of action arises within the territorial jurisdiction of the High Court, the
same by itself may not be considered to be a determinative factor compelling the High Court
to decide the matter on merits. In appropriate cases, the court may refuse to exercise its
discretionary jurisdiction by invoking the doctrine of forum convenience.

In Suganchand Bhikamchand v Mangibai Gulabchand15 As per Indian law the adopted son is
entitled to property right of the father. Because adoption has an retrospective effect. The
adoption after death of the husband is valid considering that the adoption took place when he
was alive.

12
M.Govindharajan, “Doctrine of forum conveniens “ june 2009
see., https://www.taxmanagementindia.com/visitor/detail_article.asp?ArticleID=377 (last visited on 18 May
2017(N.T.M)).
13
(2008) 22 CLA BL Supp 37 (Del).
14
(2004) 61 CLA 136 (SC)
15
(1942) 44 BOMLR 358

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 4.5. DIFFERENCE BETWEEN SUCCESSION AND ADMINISTRATION
Succession results in absolute transfer i.e., title and possession whereas,
Administration is after setting the debt and liabilities the properties are distributed
among its legal heir or managing the property as a legal representative. In case of
intestate court would appoint the administrator to complete certain duties.
Administrator may also be appointed by testator. If the administrators a minor the
court would appoint a legal representative.
4.6. INSOLVENCY AND INCORPORATION
It is based on domicile of a person and corporation for movable property Indian court
will recognise foreign adjudication. Foreign incorporated entities are also recognise
Indian corporate law which is applicable on corporation i.e., lex situs. Indian court
will interfere in foreign corporation matter which are purely internal. Amalgamation
and dissolution law of its place of incorporation. Evidence of foreign law is required.
In case of movables decision passed by the foreign court would be enforced in India.
But in case of immovable the place where the property is situated the internal laws
would be considered. When the parent company is discharged of its liabilities it can
enforce the decree in any country where the subsidiary concern is located.
The local jurisdiction of the corporation of any country either Indian or foreign are
considered to be a person by virtue of which it may appear as a defendant to the
Indian court as endowed with legal personality.

CHAPTER V

CONCLUSION:

The improvements introduced by the Indian Succession Act, 1925 with regard to conflict of
laws and succession to property rights is balanced. But in my point of view I think both ISA
and conflict of laws are same. Because both deals the succession right jurisdiction are also
same. The only difference is conflict of laws is for all the citizen who are having connection
with foreign element but ISA is restricted for Muslims. For this my suggestion is Uniform
civil code has to be brought up.

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BIBLIOGRAPHY:

BOOKS REFFERED:

 Basu, N.D., “Law of Succession”; Bakshi, P.M.(rev.), 6th ed. 1998, Asoka Law
House, New Delhi

 Diwan, Paras, “The Law of Intestate and Testamentary Succession”, 1st ed. 1991,
IInd ed. 1998, Universal law Publishing Co. , Delhi

 Parry & Clark, “The Law of Succession,” 10th ed. 1996 (2nd imp. 1997), Sweet &
Maxwell, London

 Rao, G.C.V. Subba, “Family Law in India”; Rao, T.V. Subba and Kumar, Vijender,
(rev.), 8th ed. 2004, S. Gogia and Co., Hyderabad

 Sen, D.N., “Indian Succession Act, 1925”; Gupta, S.P. Sen (eds.), 4th ed. 2002,
Kamal Law House, Calcutta

 C.K.Takwani, “ Civil Procedure code” 1908, 13th ed., eastern book publications,
2015.

JOURNALS:

1. Champapilly, Sebastian, “Reforms in Christian law of succession in India,” (1999) 4

SCC (Jour) 7.

WEBPAGES:

1. Law Dictionary: What is SUCCESSION? definition of SUCCESSION (Black's Law

Dictionary). Featuring Black's Law Dictionary Free Online Legal Dictionary 2nd
Ed. \

2. Christian law of succession https://www.lawteacher.net/free-law-essays/property-

trusts/christian-law-of-succession.php (last visited on 13 May 2017 (N.T.M))
3. Indian Succession Act,1925
see.,http://districtcourtsnamchi.nic.in/laws/indian_succession_act_1925.pdf Pg.68 of
123 (last visited on 10 May 2017 (N.T.M))
4. Dan Andrei Popescu Ph.D Associate Professor, “Guide on international private law in
successions matters”

18
 See., http://old.just.ro/LinkClick.aspx?fileticket=Sr4HhCRh6zU%3D&tabid=2980
(last visited on 20 May 2017(N.T.M))
5. CAROL S. BRUCH, The Hague Convention On The Law Applicable To Succession To The
Estates Of Deceased Persons: Do Quasi-Community Property And Mandatory Survivorship
Laws Need Protection?

6. M.Govindharajan, “Doctrine of forum conveniens “ june 2009

see., https://www.taxmanagementindia.com/visitor/detail_article.asp?ArticleID=377
(last visited on 18 May 2017(N.T.M)).

19