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.
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. Now on the other hand, a British national dies leaving behind immovable
properties in Indian, then devolution to this property would be governed by the Indian Law.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, 2. Succession to movables, and 3. Succession to movables.

2. ADMINISTRATION OF ESTATE

If a person dies intestate, 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,
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. The administrators under
English law have three main functions firstly collection of assets of the deceased, secondly
payment of debts, and thirdly distribution of residue among the heirs.

3. JURISDICTION OF COURTS

Until 1932 the English court committed as it was to the ecclesiastical

doctrine of presence of property within the jurisdiction, exercised the jurisdiction only if some
property of the deceased was within the jurisdiction; it was of no consequence that the
deceased was domiciled in England. 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, and the foreign court
would not appoint one as he was not domiciled there at the time of his death. So to obviate
this difficulty, the Administration of Justice Act, 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, such as under the small payment (Administration of
Estates) Act, 1950.
person, ‘Notwithstanding that the deceased person left no estate’ 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. The English courts generally exercise jurisdiction in granting administration on the basis
of presence of assets in England. Now Law of Succession regarding Indian which closely
follows English law. The provision relating to grant of probate and letters of administration
are contained in the Succession Act, 1925. In the matter of grant of letters of administration or
probate, the jurisdiction is conferred on the District Judge and High Courts. 4 The basis of
jurisdiction are two, firstly if at the time of his death the deceased has a fixed place of abode
within the jurisdiction, or secondly if movable or immovable property of the deceased is
situated within the jurisdiction of the District Judge. 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.

4. 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, the English
Court will appoint the person as administrator who is considered to be the personal
representative of the deceased by his lex domicilii. 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, who then comes to this country and satisfies it that by the proper authority of
his country, he has been authorized to administer the estate of the deceased, and without
further consideration, to grant power to that person to administer the English assets.” For
instance, if a foreign administrator is incompetent to act as administrator, such as a minor,
then no grant will be made to him.6 The court also has discretion to make a grant to some
other person such as a creditor of the deceased7, and if the domiciliary administrator takes no
steps to obtain probate or letters of administration, the grant of administration may be given to

3
See S. 2(1)
4
See S. 270
5
(1870) 2 P. & D. 89
6
In the Goods of D’ Orleans, (1859) 1 Sw. Tr. 253.
7
In the Estate of Leguia, (1934) P. 80.
the foreign administrator himself or to any attorney who had been authorized to apply for such
a grant.

The position of grant of administration in respect of immovables situated in

England is not so clear. Now in the matter of grant of letters of administrations Indian law
makes a distinction between Hindus, Muslims, Buddhists, Sikhs and Jains on the one side, and
other persons on the other.

In former case, letters of administration are not required so it is optional, then

Section. 218, 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, would be entitled to the whole or any part of such deceased’s estate.” The domicile
or nationality of deceased is immaterial. 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.

5. FUNCTION OF FOREIGN ADMINISTRATOR

As soon as probate or letters of administration are granted to a person, all

properties of the deceased which at the time of his death are situated in England vest in him.
Administration in broad sense includes the discharge of all the three functions mentioned
above viz. collection of assets, 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, and the lex situs in regards to immovable’s. Administration in narrow
sense it includes only the first two functions.

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, other wise
liable to account for assets collected by him under the English grant in the character of an
English administrator. 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. This is done in accordance with the lex fori, and the lex domicilii of the
deceased at the time of his death has noting to do with it, hence govern by lex fori. After the
debts have been paid, the surplus assets are to be distributed among the beneficiaries.
 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.8 Then section 3249 provides for conflict of laws
cases and lies down that the lex fori will govern the matter.

6. POSITION OF FOREIGN ADMINISTRATOR

The Foreign courts have similar power to appoint administrators of assets situated in England,
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 Indian courts do not recognize a
foreign administrator for any purpose of administration of assets of the deceased situated in
India.

7. SUCCESSION TO IMMOVABLE -

The English and Indian Private International Laws follow the principle that succession to
immovables is governed by the lex situs. Under English law the general rule is that all
aspects of succession, intestate or testamentary, are regulated by the lex situs when a person
dies leaving immovable properties. 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,
revocation of will, power of disposition, the validity of disposition.

Now under the Indian private international law is substantially the same. The
Supreme Court11 observed that succession to immovables is governed by the lex situs of the
immovable property. The Kerala High Court question came for consideration that one Dr.
Krishnan lived in England from 1920 to 1950 where he died intestate in England in 1950. He
built a comfortable practice at Sheffield. The court followed the decision of the English case,
Re Berchtold12 and held that since the interest left by the deceased was immovable, the
succession to it would be governed by the lex situs even if the property is converted by the

8
See S. 220 and 227, the Succession Act, 1925.
9
This section runs:
“(1) if the domicile of the deceased is not in India, the application of his movable property to the
payment of his debts is to be regulated by the law of India.”
10
In Pepin v. Bruyere, (1990) 2 Ch. 504, on appeal (1902) 1 Ch. 24.
11
In Vishvanatha v. Syed Abdul Wazid, 1963 S.C. 1.
12
(1923) 1 Ch. 192.
administrators into cash. Under the Indian Private international law also, it seems; all matters
relating to capacity to make will, revocation of will, power of disposition and the validity of
disposition and like are governed by the lex situs.

Provisions relating to construction of wills are laid down in ss. 74 to 111,

Succession Act, 1925 and relating to election is ss. 180-190, succession Act, 1925. It appears
that whenever a will of deceased person in respect of immovable’s situated in India comes
for construction before an Indian court, the Indian court is bound to apply the lex fori, i.e.,
rules of construction as laid down in ss. 74 to 111 of the Succession Act 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. 5 of the Act. The lex fori would apply whether the will was
executed in India or elsewhere. The Indian courts have all along taken the view that intention
of the testator is to be carried out. But clear and unambiguous dispositive words are to be
given effect to, and not to be controlled by the so-called intention of the testator.

8. SUCCESSION TO MOVABLE

So for as the testamentary succession is concerned, in India, members of all

communities are governed wholly or partly by one law, viz., the succession Act, 1925,
though different rules of succession apply to members of each community in the case of
intestate succession. Law of testamentary succession in Indian is contained in Part VI of the
Succession Act, 1925, and constituted the law of testamentary succession in India, and
applies to all communities, except the Muslims. To the Hindus it applies with some
modifications. As to the other communities, such as Christians and Parsis, it applies fully.

Section 5(2) of the Succession Act, 1925, as has already been noted,
contains a rule of conflict of laws. 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. But the application of this provision has been excluded in cases the
deceased in a Hindu, Mohammedan, Buddhist, Sikh or Jain. This provision was enacted at a
time when the British Government in Indian was least inclined to interfere, directly or
indirectly, with the personal laws of Hindus and Muslims. In the modern context, 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 Muslims, as the case
may be. 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. Similarly, if a Hindu or Muslim had died domiciled abroad, then
succession to his movables will be regulated by his lex domicilii at the time of his death. In
short, this provision cannot affect the rules of private international law.

9. JURISDICTION -

In the English law of succession is usually termed as beneficial distribution of property,

so has jurisdiction to grant administration and to determine beneficial distribution of
property. Whereas the Indian courts exercise jurisdiction either on the basis of presence of
assets within the jurisdiction, or that the deceased had a fixed place of abode at the time of
his death within the jurisdiction. Indian courts have declined to exercise jurisdiction in a case
of conflict of laws case, based on fixed place of abode of the deceased within the jurisdiction.
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’. but in view of Section 5(2),
in respect of movables, 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,
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. 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. But in case he died leaving behind
assets in India, then Indian courts have jurisdiction to determine the validity of his will and
allied matters relating to testamentary succession.

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. 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, as English courts also exercise jurisdiction on this basis. The Indian position w.r.t is
that there is no reported decision of Indian Court as to on what basis the Indian Courts would
 recognize the jurisdiction of foreign courts to determine succession to movables. In this
connection the main question is: suppose, an Indian Hindu dies domiciled in England leaving
behind assets in India, 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, strictly speaking, there is nothing like lex domicilii, they are governed
by their personal law, which is the law of their community. When the English court
determines succession on the basis of the lex domicilii of the deceased, then it should apply
the personal law of the deceased Hindu, as in his case, broadly construed, that will be the law
of his domicile. If the English court applies any other law, 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.

10 .CHOICE OF LAW

10.1 Intestate succession: - In England intestate succession to movable is governed by the law
of the domicile of the deceased person at the time of his death, irrespective of the fact as to the
place where he was born, or died, or of the situation of movables at the time of his death 13. It
is the lex domicilii which determines the heirs who are entitled to take the relative proportion
to which they are entitled to, the right of representation, the rights of a surviving spouse, the
liability of the distributes for unpaid debts are like matters.

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.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. The answer will be in
affirmative, if we ignore his nationality. Suppose, a Burmese Buddhist dies in Burma leaving
behind movable in India. the Buddhist are included in the definition of the term ‘Hindu’. 15
Will succession to his property be regulated under Hindu law? in the converse case, an Indian
Hindu who dies domiciled in New York leaving behind his assets in India, then succession to

13
In Pipon v. Pipon, (1744) Amb. 25. Practically all the writers of international law are unanimous on this
point: Westlake, ss. 59-120.
14
See S. 5(2), Succession Act, 1925, In Shankeran v. Lakshmi 1974 S.C. 1964.
15
See S.2 (1) (b) Hindu Succession Act, 1956.
his property 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 Indian intestate succession differs from community to community.
Hindus are governed by their own law of succession16, Muslims by Muslim Law of
succession17, Parsis by the Parsi law of succession18 and Christians and others by their own
laws of intestate succession.19

10.2 Testamentary succession: - 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. If a deceased person domiciled elsewhere dies leaving behind assets in England, then a
grant of probate in England is essential and so far as the administration is concerned it is
governed 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 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.

CONCLUDING REMARKS

Few qualifications still needed to be mad to these propositions so far as intestate

succession is concerned. 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; and other laws
are made relevant by statute if the question is one of formal validity. Now law of succession
in preset state of Indian Private International Law is not a deficiency of rules, 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. Succession to immovables is governed by the
lex situs, and succession to movables by the law of the deceased’s last domicile.

16
See Hindu Succession Act, 1956.
17
There is the different among Shias and Sunnis and other sects of Muslims.
18
See Chapter III, Succession Act, 1925.
19
See Chapter II, Succession Act, 1925.