The Indian Succession Act and domicile

1. Scope of the Indian Succession Act, 1925

The Act consolidated the law of intestate and testamentary succession. It has eleven Parts, and each applies to a different set of people, so the first step in any answer is to ask which Part applies to whom.

• Part II (domicile): does not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina (section 4).
• Part V (intestate succession): does not apply to the property of a Hindu, Muhammadan, Buddhist, Sikh or Jaina (section 29). It governs Christians, Parsis (who have a separate chapter), Jews, and persons whose succession is governed by the Act because they married under the Special Marriage Act, 1954.
• Part VI (testamentary succession): does not apply to Muhammadans (section 58). It applies to Hindus, Buddhists, Sikhs and Jainas to the extent set out in section 57 and Schedule III; section 30 of the Hindu Succession Act, 1956 says the wills of Hindus are governed by the Indian Succession Act.
• Parts VIII to X (representative title, probate and administration, succession certificates) apply generally, with exceptions for some communities noted in each section.

2. What domicile means

The Act does not define domicile. It means the country that a person treats as his permanent home, the place where he has his fixed habitation with the intention of remaining. It is a concept of private international law, different from nationality (a political status) and from residence (a question of fact). A person can have only one domicile for the purpose of succession to his movables (section 6), and he can never be without one.

In Central Bank of India v. Ram Narain, 1954 INSC 88, AIR 1955 SC 36, the Supreme Court explained that a domicile of choice requires two things: residence in the new country (factum) and the intention to remain there permanently or indefinitely (animus manendi). Ram Narain, who lived in what became Pakistan and moved to India after Partition, had not acquired an Indian domicile at the date of the alleged offence in November 1947: he had neither moved to India nor formed a settled intention to make it his home at that date, and both are needed.

3. Domicile of origin

• Section 7: the domicile of origin of a person of legitimate birth is in the country where his father was domiciled at the time of his birth, or, for a posthumous child, where the father was domiciled at his death. The place of birth does not matter.
• Section 8: an illegitimate child takes the domicile of the mother at the time of his birth.
• Section 9: the domicile of origin prevails until a new domicile has been acquired.

4. Domicile of choice

• Section 10: a man acquires a new domicile by taking up his fixed habitation in a country that is not his domicile of origin. By the Explanation, a man does not take up a fixed habitation in India merely by residing here in the civil, military, naval or air force service of Government, or in the exercise of a profession or calling. The illustrations show the test: a man who settles in India intending to stay for the rest of his life acquires an Indian domicile; one who comes for a fixed term intending to return, or as a political refugee hoping to go back, does not, however long he stays.
• Section 11: a special mode. Any person may acquire a domicile in India by making and depositing, in an office appointed by the State Government, a written declaration of his desire to acquire it, provided he has been resident in India for one year immediately before.
• Section 12: an ambassador, consul or other representative of a foreign Government does not acquire a domicile by residing in pursuance of his appointment, nor do the family members or servants who live with him.
• Section 13: a new domicile continues until the former domicile has been resumed or another has been acquired.

5. Domicile of dependence

• Section 14: a minor's domicile follows the domicile of the parent from whom he derived his domicile of origin. By the Exception, it does not change with the parent's if the minor is married, holds an office or employment in the service of Government, or has set up a distinct business with the parent's consent.
• Section 17: save as provided in Part II, a person cannot acquire a new domicile during minority.
• Section 15: by marriage a woman acquires the domicile of her husband, if she did not have it already.
• Section 16: a wife's domicile during marriage follows her husband's, except where they are separated by the sentence of a competent court or the husband is undergoing a sentence of transportation.
• Section 18: an insane person cannot acquire a new domicile except by his domicile following that of another person.

The dependent domicile of a married woman is a relic of English common law, which abolished it in 1973. It sits uneasily with Articles 14 and 15, and textbooks routinely say so; the provision is still on the statute book.

6. Succession to movables: sections 5 and 19

Section 5(1): succession to immovable property in India is regulated by the law of India, wherever the deceased was domiciled. Section 5(2): succession to movable property is regulated by the law of the country in which the deceased had his domicile at the time of his death. Section 19 supplies a presumption: if a person dies leaving movables in India, and no domicile elsewhere is proved, succession to them is regulated by the law of India.

The illustrations to section 5 are the standard examples. A, domiciled in India, dies in France leaving movables in France and England and property in India: Indian law governs the whole. A, an Englishman domiciled in France, dies in India leaving movables and immovables here: French law (as it applies to an Englishman domiciled in France) governs the movables, Indian law the immovables.

7. Problem

Peter, a Christian whose father was domiciled in England, was born in Bengaluru. At 30 he went to Canada on a five-year work contract, intending to come back, but stayed on, bought a house and told friends he would retire there. He died in Toronto, leaving a flat in Mysuru and money in an Indian bank. Which law governs succession?

Issue. Peter's domicile at death, and the law applicable to his movables and immovables in India.

Law. Domicile of origin follows the father's domicile (section 7) and continues until a new one is acquired (section 9). A new domicile needs fixed habitation with intention to remain (section 10; Ram Narain). Immovables in India follow Indian law; movables follow the law of the domicile at death (section 5).

Application. Peter's domicile of origin was England, not India, since birth in Bengaluru is irrelevant. Whether he later acquired an Indian domicile depends on evidence of intention, which the facts do not show. In Canada he first went for a fixed term with the intention of returning, which would not change his domicile; but later he bought a house and declared he would retire there, so he took up a fixed habitation with the intention of remaining. He acquired a Canadian domicile of choice.

Conclusion. The Mysuru flat devolves under Indian law (the Indian Succession Act, Part V). The bank deposit, being movable, devolves under the law of the Canadian province where he was domiciled.

How this is examined

Questions are “Explain the kinds of domicile under the Indian Succession Act” or short notes on domicile of origin, domicile of choice or the domicile of a minor or married woman. Cite the sections by number; examiners look for sections 5, 7, 10 and 14 to 16. A short problem in the style above, separating movables from immovables, earns full marks if the conclusion follows section 5.