CHANAKYA NATIONAL LAW UNIVERSITY

PROJECT REPORT – PRIVATE INTERNATIONAL LAW

ASSIGNED TOPIC:

INTESTATE SUCCESSION OF LAND UNDER CONFLICT OF LAW

SUBMITTED BY

SONAKSHI

ROLL NUMBER: 1054

SUBMITTED TO

Dr. P.P.RAO

ASSISTANT PROFESSOR (LAW)

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RESEARCH METHODOLOGY

Method of Research

The researcher has adopted a purely doctrinal method of research. The researcher has made
extensive use of the available resources at library of the Chanakya National Law University
and also the internet sources.

Aims and Objectives

The aim of the project is to present an overview of various aspects relating to intestate
succession of land under conflict of law ‘’.

Scope and Limitations

Though the study of the this topic is an immense project and pages can be written over the topic
but due to certain restrictions and limitations the researcher has not been able to deal with the
topic in great detail.

Sources of Data:

The following secondary sources of data have been used in the project: Cases, Books, Journals,
Articles, etc.

Method of Writing:

The method of writing followed in the course of this research paper is primarily analytical.

Mode of Citation

The researcher has followed the bluebook method of citation throughout the course of this
research work.

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 ACKNOWLEDGEMENT

I convey my deepest gratitude to my respected faculty of Private International Law, Dr.

P.P.Rao, who has been a constant source of inspiration and guided me throughout the interval
to complete this project on ‘intestate succession of land under conflict of law’ successfully.

I wish to record my gratitude to the librarian and other staffs of CNLU library as no academic
venture of mine can be complete without their assistance and co-operation. I owe sincere
regards to them for providing me valuable information through, journals, textbooks and other
necessary data.

Sonakshi

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 TABLE OF CONTENTS
1. INTRODUCTION ............................................................ Error! Bookmark not defined.

2. SCENARIO IN INDIA ....................................................................................................... 7

3. APPLICABLE SUCCESSION LAWS TO THE ESTATES OF DECEASED

PERSONS ................................................................................................................................ 11

4. TENANCY AND OWNERSHIP OF LAND, REAL ESTATE....................................... 13

5. CONCLUSION .................................................................................................................. 15

6. BIBLIOGRAPHY ............................................................................................................... 17

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 INTRODUCTION

Under the principle of succession, succession to immovable property is governed, not by the
law of testator’s domicile, but by the law of situs.1

Accordingly, where the owner of the immovable dies intestate, the order of the descent or
distribution prescribed by the law of situs is applied by the English courts no matter what his
domicile may have been. 2The rule can be criticized on a number of grounds. It is an historical
anomaly from the time before 1926 when intestate succession to land was subject to rules
different from intestate succession of personality. Domestic legislation on intestate succession
would seem to be based on the assumption, erroneous in fact, that succession to intestate’s
property will be governed by the same law. 3This is particularly striking with regard to the
statutory legacies which go to a surviving spouse under the law of England and Northern
Ireland. Can a widow claim such statutory legacies one based on land in England and the other
on personality in northern island?

The operation of the rule may be illustrated by two decisions. The first is an Irish case, Re Rea4:
a domicile Irish man died intestate without issuing Ireland, owning land in both Ireland and
Victoria. in such circumstances a widow was entitled by a Victorian statute to a charge of one
thousand pounds, a land in the colony and buy an Irish statute to a charge of 500 pounds payable
out of the real and personal estate in Ireland .The land in Victoria having been sold and the
proceeds remitted to Ireland, it was held that the widow was entitled to 1000 pounds under the
Victorian statute, as well as the 500 pounds under the Irish statute since her rights were those
conferred by the of situs.

The second and the most recent, decision is Re Collens5: The deceased died in 1966 due to
natural circumstances. He was intestate and died domiciled in Trinidad and Tobago, leaving
property there, in Barbados and in England. The property in England included immovable
property. There was a dispute over succession to the estate and it was agreed that the
deceased’s second wife should receive $1 million in settlement of any claim to the property in
Trinidad and Tobago, but that succession to the estate in Barbados and England should be

1
This would seem to mean the law of situs at the date of the proceedings, rather than at the time of death:
Nelson v Lord Bridport (1846) 8 Beav 547.
2
Balfour v Scott (1793)6 Bro Parl Cas 550.
3
See Morris (1969) 85 LQR 339, 349, 348-352.
4
[1902] 1 IR 451.
5
[1986] Ch 505, [1986] 1 AII ER 611.

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governed by their respective laws. It was not contested that the English law as the law of the
situs governed the intestate succession to the English immovable. The question for the court
was whether the second wife could take, not only the $1 million agreed under the law
deceased’s domicile, but also the statutory legacy due to a widow under the English Law of
Intestacy.

Sir Nicolas Browne- Wilkinson V-C was reluctant to see the widow succeed both under the
law of domicile and to the legacy under English law, as the law of the situs. Nevertheless he
was unable to interpret either the English statutory provisions or the choice of law so as to lead
to any other results. Although he saw force in the criticism of this state of the law, he felt
obligated to conclude that “my job is to administer the law as t now is.”

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 SCENARIO IN INDIA

Till now, the Indian state has been successful in attracting the cooperation and assistance from
over 25 million NRIs in form of investment, technology, ideas, cultural, political, social
influence, etc. Now the time has come where government at union and state level shall, in the
parlance of negotiation, give back to the NRIs dues for their support to India. Unless and until
we will follow in letter and spirit, Give and Take policy, the relations between India and NRIs
will remain one-way love affair; hence, our relations will remain vulnerable to sustainability,
stability and predictability.
Having spent nearly 20 years in the Netherlands and someone who closely watched and at
times felt problems of NRIs and PIOs, I firmly believe that legal and administrative
mechanisms are long due in the area of property. Incidentally, it was Dr Kalam our former
President on 16 November 2004 put a general question related to succession of and matrimonial
property of an NRI to me. Six years before I did not have the answer, nor six years after because
calls to enact necessary legal provisions which are made by the highest judicial offices of the
country, NRI associations, scholars, practitioners are yet to find careful listening and actionable
plans by the Union and State machineries. This is not a criticism but this is one of the saddest
areas of conflict of laws in our country and I am sure Ministers Ravi, Kaur and Ravichandran,
judiciary and of course international law practitioners will sympathize with me. Therefore to
be a part of a seminar which has forward looking and solution-oriented purpose is an honour
and matter of service to the nation.6

My presentation will focus on three main areas – matrimonial property, succession of property
and tenancy/ownership of property issues of NRIs/PIOs. I would highlight the main issues and
possible feasible practical legal measures to address those issues.

Matrimonial property is widely prevalent in civil law countries such as continental Europe and
Latin American nations. This concept has not yet received its due importance in India and
issues relating to this concept have not been agitated vehemently before Indian courts so far.
However, with the globalization, privatization and liberalization and large scale immigrations
that are taking place, in these countries too, legal issues concerning the properties that may
have been acquired or purchased or raised in India or in such jurisdictions during the
subsistence of marriage are becoming more and more important.

6
Bimal N. Patel, "Legal Issues of Non-Resident Indians (NRIs) and People of Indian Origin (PIOs)" available at
https://www.gnlu.ac.in/vcspmsg-inner15.php last accessed on November 3, 2017 at 4:20 AM.

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The current challenge is that if one of the spouses settled in civil law and / or common law
countries, how to address their problems. India has large scale NRI population in the USA and
the UK, not least to mention in African and Middle-East Regions. In the USA, 41 states follow
the Community Property System while other follows Separate Property System. Under the
CPS, predetermined assets of husband and wife either by law or contract are treated as a single
mass and on the termination of marriage, either by death or divorce is shared equally. –
advantage is that the danger of completely disinheriting a widow is checked by imposing
restriction on testation. Whereas, under the SPS – wife is the owner of her property, distinct
from her husband as she had been before her marriage as the husband is, of his. Each spouse
has independent powers of disposition over his or her property without the need for consent of
the other spouse. The sharing of assets of husband and wife is not institutionalized. CPS is
governed by contract or in the absence of contract by the law of state of dominant interest. The
state of dominant interest by and large will depend upon the nature of property.

The problem is not related to immovable property because the law relating to immovable
property is governed by the lex situs (location of property). Since no community of property
right attaches at the time of marriage to the existing assets the chances of conflict regarding
such are reduced to minimum. After marriage while the governing law remains the same lex
situs, but tracing rule also becomes important, i.e. marital rights in assets used to purchase land
will be recognized in the land after purchase – marital interest which attaches to movable assets
acquired by the spouses according to the law of their domicile at the time of acquisition is
recognized and traceable into real property located in another state in which those assets are
invested – rationale – one’s title to money or other assets, is not lost by moving it across a state
line and turning it into some other form of property. Income from immovable property on
receipt whether to be characterized as separate or community property would depend upon the
marital domicile at the time that income is acquired.7

As far as movable property is concerned, no state provides for an immediate marital interest in
the movable assets of the other spouse at the time of marriage – the law of domicile of the party
who has acquired the property will be applicable and law of common domicile will be
applicable for such properties after marriage.

7
Bimal N. Patel, "Legal Issues of Non-Resident Indians (NRIs) and People of Indian Origin (PIOs)" available at
https://www.gnlu.ac.in/vcspmsg-inner15.php last accessed on November 3, 2017 at 4:20 AM.

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In the United Kingdom, governing law depends upon the selection of party the law for
matrimonial property, in absence of such selection; law of matrimonial domicile will be
effective. It is important to note, however, that husband’s domicile is largely taken into
consideration as it is believed that such a rule provides a simple and certain means of
identifying controlling of law. This has serious disadvantage for disserted NRI wives in the
UK.

Looking at home, marriage does not have the legal effect of creating community property, India
has adopted SPS which prevails in England and whatever its pros and cons have been inherited
and applied by our legal and judicial system. Because of this our personal laws suffer from a
serious disadvantage of the Separate Property System namely, the unrestricted power of
testation that empowers one to disinherit one’s spouse, ignoring moral and social obligation.
India has followed the English rules of conflict that in absence of a settlement or a contract
between the parties to a marriage involving a foreign element, the parties to such marriage shall
continue to enjoy properties separately and the marriage will not bring any change in their
separate rights of ownership in the property with their individual and exclusive right to own
and dispose of the properties whether acquired before or during the marriage. Lot of Indians
find legal issues relating to their rights in such properties calling for solutions as any other
person from other jurisdictions. Therefore there is a need for a uniform set of rules providing
for solutions to such conflict of law situations and cannot be avoided.

At international level, the Hague Convention on Matrimonial Property of 1978 does not
provide a solution because it is partial towards the civil law countries, hence, NRI living in
common law countries, USA, UK and many other commonwealth nations cannot depend upon
this convention.

One solution has been proposed for a long time is the changes in our personal laws, but we
cannot wait for long and ignore that large number of Indians have already migrated to
Community Property System countries esp.

In view of the above, India needs to understand codify the matrimonial property regimes by
the PIO/NRIs who aspire to settle in those jurisdictions cannot be under estimated.

Indian Succession Act 1925 recognizes pre-marriage contract/settlements for opting out of
existing separate property regime entered into between the parties to a marriage, one of whom
is domiciled in India and the other being domiciled outside India. This provision is intended to

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harmonize the Indian conflict of law on marital property and safeguard the interests of Indian
who are marrying in jurisdictions where community property regimes are prevalent.

There are, if at all, no litigation before the Indian courts asserting rights by persons of Indian
origin in the matrimonial properties and therefore the issues of conflict of laws in respect of
PIOs could not be examined. One of the reasons may be that most of the immigrants so far
have been investing their savings in India and therefore no litigation for asserting share in
matrimonial property could arise, however, this does not mean that India must not prepare itself
to meet the future litigation in the face of globalization.

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APPLICABLE SUCCESSION LAWS TO THE ESTATES OF DECEASED PERSONS

Why we need to address the issues: There are increasing number of international succession
due to foreign contracts/elements due to a. increase in the migration of workers, many choosing
settling down abroad, b. increase in international marriages, more children with dual
nationality, c. increase in number of transnational investments in real estate, shares and other
areas, and d. growth and expansion of MNCs, resulting in the creation of employment
opportunity across boundaries, e. increasing number of refugees, stateless people, etc.

Which are the issues: when a person has his/her habitual residence/domicile in countries other
than that of his/her nationality, or his/her property is left in another country or in several
countries and he dies without making a will, what happens to succession issues and which are
applicable laws, will there be single law – the law of his nationality, domicile or law of the
country in which property is situated applicable to the exclusion of the law of other foreign
jurisdictions.8

Succession to property testamentary and interstate – domestic law applicable (internal law),
great divergence between civil and common law on the basic concepts of the classification and
succession law.

Problem arises if property is situated is in one country and owner is habitually resident in
another countries and dies testate or intestate.

Law regulating succession to deceased persons’ immovable and movable property – succession
to the immovable property in India of a deceased person shall be regulated by the law of India,
wherever such person may have had his domicile at the time of his death; succession to a
movable property shall be regulated by the law of the country in which such person had his
domicile at the time of death.

Lex situs of India apply even to a foreigner’s immovable property in India or for that matter of
an Indian’s property even if he was not of Indian domicile at the death time. This lex situs
principle in consonance with commonwealth countries practice.

1989 convention does not recognize the applicable law of lex situs regarding the immovable
and movable property as prevalent in India brings into existence a partial convention reflecting

8
Anonymous, http://old.just.ro/LinkClick.aspx?fileticket=Sr4HhCRh6zU%3D&tabid=2980 last accessed on
November 3, 2017 at 4:20 AM.

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mainly civil law countries traditions, introduces party autonomy drawing heavily on notions of
contract law. In India, succession is regulated by law and not by the discretion of the testator,
does not recognize the rule that law of domicile is the only basis for governing succession
relating to movable property. India, section 4-19 of the 1925 Act deal elaborately with the
domicile rule, no evidence in case laws that the rules contained in 1925 act has not functioned
satisfactorily seen from Indian perspective, though. In India the succession is governed by their
personal laws. For example, Hindus governed by the Hindu Succession Act, Muslims governed
by their own personal laws. The Indian Succession Act governing certain persons.

Apparently India does not face any crisis situation on account of the lack of rules relating to
conflict law situation in so far as it relates to the issue of succession, testate or intestate,
movable or immovable property; most imp, the succession issues mainly arose in 1950s and
1960s, the present day NRIs retain their Indian domicile normally repatriating their foreign
earnings to India.

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 TENANCY AND OWNERSHIP OF LAND, REAL ESTATE

Whereas the above two regimes squarely fall under the family law area, the legal issues
concerning tenancy and ownership of land, real estate, movable property, face uncertain future
in the realm of conflict of laws in commercial laws and judiciary cooperation. Due to lack of
codification, absence of legal and administrative mechanisms, absence of special dispute
settlement mechanisms, various courts tend to take various approaches and apply different laws
and rules in deciding the issues. Least to say, there is any repository of knowledge either at
union or state level in this area of conflict of laws. Let me cite few classic examples and how
our judiciary has settled the problem.

Our NRIs face a problem of evicting their property occupied by others and understood that they
must remain present for filing a petition. Here, the Supreme Court has clearly laid down that a
personal presence in filing petition is not required. Imagine, if NRI is required to file a petition
personally, he would never succeed in getting eviction order passed.9

At times we have seen cases where the illegal occupants to harass or usurp the properties of
NRIs would resort to court arguing that it is not the NRI but a dependent of an NRI will be
using the property, hence, he will not vacate because the property belongs to the NRI who is
not going to be a direct user. Here, too, it is clear that though an NRI resides permanently in
other country he could get the accommodation vacated for the need of his dependent that
ordinarily lives with him.

Another instance relates to a presumption of bonafide element – A tenant argues that since the
NRI has acquired foreign citizenship and does not stay but makes visit and hence his claim for
eviction of his property occupied by the tenant shall be done. Imagine, thousands and thousands
of NRIs in their old age are facing this problem. In some cases, they succeed in getting their
properties evicted, whereas in many, this remains a dream for them.

There are cases when tenants try to harass NRIs and refuse to vacate properties on the grounds
that NRIs own more than one property in the same jurisdiction, hence, he should not be required
to vacate the property occupied by him. In other cases, tenants would argue before the courts
that since NRI do not need to use the entire property, they would not vacate the entire property.

9
Anonymous , https://conflictoflaws.uslegal.com/laws-applicable-to-immovable-property/ last accessed on
November 3, 2017 at 4:20 AM.

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The case-law has been clear in both types of circumstances – the tenants arguments do not
stand.

In Punjab and Gujarat, there have been many instances where tenants would refuse to vacate
on the grounds that the property is not exclusively owned by the NRIs. Here again, till such
time the property is actually partitioned by meats and bounds, co-owner owns every part and
bit of joint property along with others and can seek the eviction of tenant from whole building.

In several cases, the tenants have challenged the intention of NRIs for eviction and alleged non-
bonafide intention and refuse to vacate properties.

In above instances, as there is no uniformity of private laws and case-law differs from courts
to courts in India, unless and until the NRI is fully aware of the best practices, can hardly
succeed in other courts. Imagine how a remote court in various states of the country, facing
absence of laws and not having readily available best case-laws, will handle such problems.10

10
Anonymous , https://lawshelf.com/courseware/entry/intestate-succession-ruleslast accessed on November 3,
2017 at 4:20 AM.

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 CONCLUSION

With regards to property issues on succession, there are no major legal problems as the
Succession laws and jurisprudence is quite clear. However, issues arise with regards to
matrimonial properties and ownership/tenancy issues. One of the most important solutions is
to adopt the Hague Convention, however, the Convention itself has serious limitations and
cannot provide any meaningful solution to problems currently.

Therefore, one proposal is to develop bilateral agreement along the lines of Bilateral
Investment Treaties and the draft could be quite simple.

While MPBA (Matrimonial Property Bilateral Agreement) could be a medium term solution,
GoI can in a short-term period, prepare a comparative detailed chart of applicable laws in each
major jurisdictions where we have significant NRI population. The chart would help our
missions and clients to understand the legal regime and give proper advise in these
jurisdictions. Our foreign missions should circulate this information to Supreme Court and
High Courts of various jurisdictions. GNLU Centre on Private International Law, first of its
kind in the country would be pleased to prepare such informative, easily understandable
information compendium and take care of circulating to missions and courts in various
jurisdictions as well as our NRI associations. Until a bill is passed, such would be an interim
but very useful and relief solution to our NRIs. A cursory remark is useful that the review of
common law, civil law and US, UK, Canada and SA show that by and large the entire
matrimonial regime is imbalanced in favour of men. Equality was not when bills in the US,
UK were passed, we are in 2010 and must strike a balance between the rights instead of simply
following any model. Idea is to draw comparative practices and based upon fairness and equity,
new regime should be developed. At domestic level, GNLU can provide training and legal
awareness session to judges in close cooperation with the MOIA and Ministry of Law and
Justice.

With regards to tenancy and ownership issues of NRIs, the Centre can instruct the state to
amend their revenue and land tenure acts along the lines of the Punjab Security of Land Tenures
(Amendment) which came into effect in 1997. Under this amendment, the NRI can have
possession of their land like members of armed forces, by summary procedure. They are
required to file case in the court of SDM-cum-Asst Collector. This concession is available only
in respect of the land acquired or held by a NRI before the commencement of this act.

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Solution to other problem related to possession of urban properties from tenants can be found
in the amendment of East Punjab Urban Restriction Act 1949 amended in 2001 which
facilitates return of possession by filing a case before the civil court having power of rent
controller in respective jurisdiction.

To materialize the above objectives, the Punjab govt has established fast track revenue courts
for NRIs. The govt not only has established the courts in four districts but also require that
district collector and divisional commissioner review disposal of cases every fortnight. A
review is also held by the Chief Secretary of the State.

I see that our more than 25 million NRIs are eagerly waiting, especially those suffering and
those who are planning that GoI and concerned states take necessary actions on a priority basis.
They are our best partners in promoting the goals and objectives of Indian foreign, economic,
cultural policies and we owe them quick actions.

Presence of three relevant ministries and senior officers, in my view, without too much of
detailed discussions again and again draw up a plan of action, how to solves these problems.
As I mentioned earlier, GNLU Centre for Private Int Law is willing and ready to contribute a
role in relieving the agony of our NRIs.

We have gathered today with the purpose of deliberating and discussing concrete ways and
let’s use this opportunity to promise them a concrete plan before the end of the year. India has
steadily shown interest into the Hague Convention and I believe as a person who could play a
useful role signing of some of these conventions such as apostle convention is already making
a lot of positive impacts to Indian going abroad. I believe this spirit needs to be sustained.
Unfortunately, Hague Conventions do not provide immediate or long-term relief to property
related problems of NRIs, hence, we have to come up with indigenous, innovative legal
provisions and mechanisms which cater to the needs and interests of our NRIs and the GoI.

I hope this seminar would be a true success if we can send a strong message to NRIs that GoI
and state governments are tying the belts to solve these problems. Those NRIs who are not
here, may please be assured by the state machineries that 2011 Pravasi Bhartiya Divas would
have already made a difference in their plight to resolve property related issues.

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