PROJECT REPORT

ON

SUCCESSION
(PIL)

SUBMITED TO: SUBMITTED BY:

1
Mrs Supreet Tejeshwar Singh

170/12

B.com LLB (Hons)

UILS

ACKNOWLEDGEMENT

Through this acknowledgment, I express my

sincere gratitude to all those people who have
been associated with this assignment and have
helped me with it and made it a worthwhile
experience.
Firstly I extend my thanks to the various people
who have shared their opinions and experiences
through which I received the required information
crucial for my report.
Finally, I express my thanks to Mrs Supreet who
gave me this opportunity to learn the subject in a
practical approach.

Tejeshwar Singh

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 INDEX

1. Succession

2. Succession to Movable Property

English law
Indian law

3. Jurisdiction of Court

Capacity
Formal Validity
Material or Essential Validity

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 SUCCESSION

In the countries of continental Europe and other civil and

countries all matters relating to succession are governed by the

single system of law, viz., and the law of the nationality of the

decamped. This is because these countries follow the principle

of unity of succession under when succession, testamentary as

well as intestate, and all matter relating to succession are

regulated by one single system of law viz. the personal law of

the deceased which most countries take to be the law of the

nationality of the deceased at the time open death.

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 India, England and other countries which follow the

commended law traditions adopt the principle of succession

under when movables and immovable do not devolve under one

single system of law. In English law this distinction seems to be

on account of historical reasons.

The differences between the private international laws of the law

countries are not merely in aspect of the appointment of heirs

or personal representatives or executors and administrators,

but also in the basic concept of will. The civil law countries,

though with some modifications, still regard will as a public

document the chief object of which is the appointment of heir.

On the other hand, English common law considers will as a

private and secret document the purpose of which is the

disposal of properties on death.

The rules of English and Indian Private International Law could

hardly be considered as satisfactory. The Will Act, 1963 has

tried to solve some of the difficulties. The Act applies to form

and construction, but as Grave son suggests, it is submitted

rightly, by analogy it can be applied to other branches of

testamentary succession.

It has been seen earlier in this Chapter, the English and cannot

Private International laws follow the principle that success to

immovables is governed by the lex situs.

The Indian Private international law is substantially the same.

Section 5(1), Indian Succession Act, 1925 runs as under:

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Succession to the immovable property in India of a person

deceased shall be regulated by the law of India, wherever in

such person may have had his domicile at the time of his

death.

In Vishvanathan v. Syed Abdul Wazid the Supreme Court

observed that succession to immovable is governed by the lex

situs of the immovable property. The question came for

consideration before the Kerala High Court in Sankaram

Govindan v. Lakshmi Bharti. One Dr. Krishnan lives in England

from 1920 to 1950. He died intestate in England in 1950. He

built a comfortable practice at Sheffield. He also got in

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 immovable in India. The court

found that he died domiciled in administration were obtained by

Miss Woodliff, Dr. Krishnans private secretary, and Arksey, and

attorney. The entire assets of Dr. Krishnan, both movable and

immovable, were sold by the administrators, and sale proceeds

were divided half and half between a brother and a sister of Dr.

Shankaran who survived him. Before the Kerala High Court the

main question was: whether the heirs of late Dr. Shankar an in

respect of his Sheffield situated immovable property were to be

reckoned under the English law, the lex situs, or the Indian law,

the les domicile? Raghavan, j., has no difficult in holding thaqt

succession to immovable is governed by the lex situs and

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therefore English law of succession applied. The learned judge

also rightly observed that whether a particular properly is

movable or immovable is to be determined by the lex situs.

Since the assets of the deceased were converted into cash, it

was argued before the English Court that the property being

converted into movables the lex domicilii should govern

succession. The court followed the decision of the English case,

Re Berthold and held that since the interest left by the deceased

was immovable the succession to it would be governed by the

lex situs, even of the property is converted by the administrators

into cash.

Under the Indian private international law also, it seems

matters relating to capacity to make will, revocation of will,

power of disposition and the validity of disposition and like are

government by the lex situs.

Provisions relating to construction of wills are laid downs.

74 to 111, Succession Act, 1925 and relating to elections. 180-

1190, Succession Act, 1925. It appears that whenever a will of

deceased person in respect of immovables situated in India

comes for construction before an Indian court, the Indian court

bound to apply the lex fori; i.e., rules of construction as laid

down in ss. 74 to 111 of the Succession Act, 1925. The lex fori

would apply whether the will was executed India of elsewhere.

The Indian courts have all along taken that intention of the

testator is to be carried out. But clear and unambiguous

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dispositive words are to be given effect to and not to be

controlled by the so-called intention of the testator.

SUCCESSION TO MOVABLE PROPERTY

English Law

Jurisdiction of English Court: In English law

succession is usually termed as beneficial distribution of

property. Theoretically, if the English court has jurisdictions to

grant administration it has also jurisdiction to determine

beneficial distribution of property. But, as has been earlier 1, in

the absence of the law assets the English court exercises

jurisdiction only when the foreign country where assets are

situated requires a grant to administration from the court of the

country of the domicile of the deceased. But if he died leaving

behind property in England the English court has jurisdiction

to determine the validity of his will the construction and all

matters connected with succession, even thought the deceased

died domiciled abroad.

Interstate succession to movable is governed by the law of

the deceased person at the time of his death, irrespective of

movable at the time of his death. 2

It is the lex domination

which determines the biers who are entitled to take the relative
1 Part I of this Chapter.

2 Dicey, Rule 29, 592

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cooperation to which they are entitled to the right of

representation, thoughts of a surviving spouse, the liability of

the distributes for debts the relationship of the claimant with

the deceased, and matters.

Testamentary succession to movable is also governed by

the country where the deceased was domiciled at the time of

death. If a deceased person domiciled elsewhere dies leaving

and assets in England, then a grant of probate in England is

essential and so far as the administration is concerned it is by

the lex fori, but then all questions relating to beneficial

succession must be decided in accordance with the law of the

domicile of the deceased. In other words, the executor must

cooperation they would take the property under the law of the

domicile.

Indian Law

So far as the testamentary succession is concerned, in India,

members of all communities are governed wholly or partly be

one law vlz., the Succession Act, 1925 though different rules of

succession apply to members of each community in the case of

interstate succession. Law of testamentary succession in India

is the contained in Part VI of the Succession Act, 1925, and

constitutes communities, expects the Muslims. To the Hindus it

applies to all come modifications. As to the other communities,

such as Christians and Parsis, it applies fully.

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 Section 5 (2) of Succession Act, 1925, contains a rule of

conflict of laws. It lays 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.

But the application of this provision has been excluded in case

the deceased is a Hindu, Mohammedan, Buddhist, Sikh or Jain.

This provision would mean that the succession to the property,

movable as well as immovable, situated in India will be

regulated by the personal law of Hindus and Muslim situated

abroad would also be governed by the personal law and not by

the lex situs of the property. Similarly, if a Hindu or Muslim had

died domiciled abroad, then succession to his movables will has

regulated by his lex domicilii at the time of his death. In short

the provision cannot affect the rules of private international

law.

Jurisdiction of the Court

It has been seen in Part I of this Chapter that under the

Succession Act, 1925 letter of administration or probate can be

obtained in respect of the estate or will or any person, including

a Hindu and a Muslim. The Indian courts exercise jurisdiction

either on the basis of present of assets within the jurisdiction,

or that the deceased had a fixed place of abode at the time of

his death within the jurisdiction. They have seen that in a

conflict of laws case, the Indian courts they declined to exercise

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jurisdiction purely on the basis of fixed place of abode of the

deceased within the jurisdiction.

Intestate Succession

It seems to be clear that intestate succession to movables

is governed by the lex domicilii of the deceased at the time of the

death.3 But will it equally apply to Hindu and Muslims? Under

the influence of English private international law it often

forgotten that nationality is an important connecting in

personal matters in India. Suppose, a Burmese Buddhist dies in

Burma leaving behind movable in India. The succession

Buddhist are included in the definition of the term Hindu. 4

will succession to his property be regulated under Hindu law?

The answer will be in affirmative, if we ignore his nationality. In

the converse case, an Indian Hindu who dies domiciled in New

York having behind his assets in India. Then succession to his

property death but should be regulated not by his lex domicilii

at the time of the death but by the law of his nationality i.e.

Hindu law. The same would be true of an Indian Muslim.

It should not be ignored that in India intestate succession

differs from community to community. Hindus are governed by

their own law of succession,5 Muslims by Muslims law of

3 Section 5 (2), Succession Act, 1925, Shankeran v. Lakshmt, 1974 S.C.
1964.

4 See s. 2 (1) (b) Hindu Succession Act, 1956.

5 Hindu Succession Act, 1956.

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succession,6 Parsis by the Parsi law of succession,7 and

Christians and others by their own laws of intestate

succession.8

As has been seen earlier, 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 the Succession Act,

19569 do not apply to them. However, provisions relating to

grant of probate and letter of administration apply to

them also.10 Provisions of the testamentary succession in the

Succession Act, 1925 applies to the other communities with

minor modification in respect of Hindu.

Capacity:The Indian law lays down the broad rule that

succession to movables is governed by the law of the domicile

the deceased at the time of his death. The question is: does the

general principle apply to capacity to make will? It is submitted

as far it concerns the personal capacity, it should be governed

by the law of the domicile of the deceased at the time of making

or the will, as the same arguments apply here as they apply

6 Which is different among Shias and Sunnis and other sects of Muslims,

7 Chapter III, Succession Act, 1925.

8 Chapter II, Succession Act, 1925.

9 Part VI of the Act.

10 Part IX of the Act.

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under English private international law. In the case of a Muslim

of Hindu the capacity to make will is regulated by his personal

law the times of making the will.

Formal Validity: India has not enacted anything like the

English statutes of 1861 and 1963. Therefore, it seems that the

general rule enacted in s. 5 (2), succession act, 1925 would

apply to formal validity of wills. It appears that wills executed in

India in respect of movables situated in India will be valid, if

that comply with the lex fori. An Indian Muslim has power to

make an oral will and if a will is made in respect of movables

situated in India, then its formal validity will be judges under

Muslim law the personal law of the deceased (the law of his

nationality) even if he died domiciled abroad. But in respect of a

will of foreigner domiciled abroad, the formal validity would be

determine by the lex domicilli of the tester at the time of his

deaththis is because of the provision ins. 5 (2) Succession

Act, 1925.

Material or Essential Validity: It seems that under India

private international law the same rules apply validity of the

foreigner will be governed by the law of his domicile at the time

of his death. Under Muslim law, a Muslim cannot bequeaths

more than one-third of his property, 11

if an Indian Muslims to

quests one-half of movables situated in India and if the validity

his will comes into question before an Indian court, then such

11 Mulla: Mohammandan law (16th Ed.)127.

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bequeaths will not be valid, even if the Muslim died domiciled in

England, Similarly, whether an Indian Hindu can bequeaths to

coparcenaries interest will be determined by Hindu law if the

duration of validity of his will in respect of Indian assets comes

before an Indian court.12

Construction of the Will:It seems that the same considerations

apply to the interpretation of constriction of will of movables

under Indian law as they apply under English law. The

Succession Act, 125, Chapter six contains provisions relating to

construction of wills. The cardinal rule o constriction of wills is

to give effect to the intention of the testator. 13 In case of

ambiguity, the court would apply that law with which the

deceased has most intimate connection and this can be the law

of the place where the made the will of the law of the country

where he was domiliciled at the time made the will. If the

testator has indicated some law, them the will, will be

interpreted according to that law. The court shall try to given

effect to the intention of the testator so as it is possible.

Revolution of the Will: Under the Indian law a will may be

involved: (a) by another will or codicil of the deceased or by

some writing declaring an intention to revoke the same and

executed in the manner a will is evacuted, (b) by destroying the

12 Before 1956, a Hindu could not bequeath his undivided interest

Mitakashara coparcener property, but now under s. 30 Hindu Succession
Act, 1956 he can do so.

13 See Chapter VI, particularly, ss. 74, 75, 82, 87.

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will, such as burning or tearing it, and (c) by marriage of the

testator, again, there is no Indian decision available on the

matter. It is submitted that in the case of the former, the law to

which the estator was subject to at the time of revocation

should apply. In a third case the law of the domicile at the time

of marriage would govern the matter.

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