Gujarat National LAW University

SUCCESSION TO IMMOVABLE PROPERTY IN CASE OF NON-RESIDENT INDIANS AND PEOPLE OF INDIAN ORIGIN

Project Submission as the Partial Fulfillment of Periodic Evaluation

Family Law - II

Submission By:

Submitted To:

10A078

Mr. Sushil Goswami

Table of Contents

List of Cases ........................... 5 Introduction . 7 Definition of Non Resident Indians And Persons of Indian Origin.. 8 Basic Concepts of Succession . 11 Position in English Law Regarding Succession to Immovable Property.. 12 Position in India Regarding Succession to Immovable Property . 14 Suggestions .. 18 Indian Judiciary And Rules Regarding Succession . 19 219th Report of the Law Commission of India 21 Relevancy and Adaptability of the Hague Convention, should India be a Party to the 1989 Convention? 21 Conclusion ... 23 Bibliography 24

Gujarat National Law University

LIST OF CASES
Maria Luiza Valentina Pereira and Anr. Vs. Jose Paulo Coutinho and Ors., 2009 (1) BomCR 370 Daljit Singh and Anr. v. Yogeshwar Prasad, 2006 (88) DRJ 698 Sankanan Govindan Vs. Lakshmi Bharti, AIR 1974 SC 1764 R. Viswanathan v. Rukn-Ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 Duncan v Lawson (1889) 41 Ch D 394 Morris (1969) 85 LQR 339 Re Thom (1987) 40 DLR 184 Re Rea [1902] 1 IR 451 Re Collens [1986] 1 All ER 611 Re Hemando, Hemando v Sawtell (1884) 27 Ch D 284 Nelson v Bridport (1846) 8 Beav 547 Studd v Cook (1883) 8 App Cas 577 Bailie v Miller [1914] 1 Ch 511 Balfour v Scott (1793) 6 Bro Parl Cas 550 (1749) Hearle v Greenbank 1 Ves Sen 298 Re Barrie's Estate 240 Iowa 431 Re Caithness (1891) 7 TLR 354 Re Mieallef's Estate [1977] 2 NSWLR 929 Re Berchtold (1923) 1 Ch. 192

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INTRODUCTION

The enticements for settling abroad magnetize many Indians to embark on the foreign soil. The number of Non-Resident Indians has been increasing at a decent rate, in almost every jurisdiction abroad. However, these Non-resident Indians keep returning back in body or in soul, to the home soil on account of their love for motherland, family, property and kith & kin. When such NRI returns, the legal problems that are connected to his temporary or permanent return, accompanies him and he seeks for a remedy to such legal problems. This perpetually leads to the import of the foreign law along with the NRI, of the overseas jurisdiction from where he has migrated. This type of situation arises mainly because of two possible causes either there is no remedy available for him under the Indian law or because he finds it easier to import a foreign court decision to India based on an alien law that has no parallel in the Indian jurisdiction. This collision of jurisdictional law that is commonly called as Conflict of laws in the sphere of Private International laws is not yet a developed jurisprudence in India. Numerous issues relating to succession are staring in face of the Indian law due to increase in number of international successions. These have resulted in Hague Convention, 1989 which is an attempt towards unification of private international law rules relating to succession. This project work is concerned with succession to

immovable property associated with the Non-Resident Indians and people of Indian origin. The legal position with regard to succession in England and in India is quite similar only difference being U.K. is a party to the Hague Convention and thus more precise legal solutions available. Absence of any specific legislation has increased the dependency on Courts which are again tied to the limitations of inadequate law.

Definition of Non resident Indians and Persons of Indian origin

To be an NRI, it is sufficient that a person of Indian origin establishes that he has permanently or temporarily settled outside India for his business or on account of his employment or for any other purpose which would indicate his intention to stay outside India for an uncertain period. It is not necessary that the NRI should be a citizen of India. It is immaterial that the NRI holds a foreign passport or has shifted to a foreign country.1 Since there is no specific law defining NRIs in relation to succession to property, the definitions under Foreign Exchange Management Act, 1999 (FEMA) has been analyzed.2

NRI definition under FEMA

As per Section 2 (vi) of FEMA (Deposits) Regulation, 20003, 'Non-Resident Indian (NRI)' means a person resident outside India who is a citizen of India or is a person of Indian origin. Thus this definition makes us to inquire into two important components that are(I) (II) Person resident outside India, Person of Indian origin

Person resident outside India Section 2 (w) of the FEMA Act, 1999 says that Person resident outside India" means a person who is not resident in India. Now section 2 (v) provides definition for person resident in IndiaSection 2 (v) "Person resident in India" means- A person residing in India for more than one hundred and eighty-two days during the course of the preceding financial year but does not include;(A) A person who has gone out of India or who stays outside India, in either case(a) For or on taking up employment outside India, or
1 2

Anil Malhotra and Ranjit Malhotra, Malhotra & Malhotra Associates, Manuptra Newsline, 2008. http://www.femaonline.com/nricorner/nri_defin_def.htm, Accessed on 23/03/10. 3 Foreign Exchange Management (Deposit) Regulations, 2000, Notification No.FEMA 5 /2000-RB dated 3rd May 2000, RESERVE BANK OF INDIA (EXCHANGE CONTROL DEPARTMENT) CENTRAL OFFICE Mumbai 400 001, http://rbidocs.rbi.org.in/rdocs/notification/PDFs/13255.pdf, Accessed on 23/03/10.

Gujarat National Law University (b) For carrying on outside India a business or vocation outside India, or (c) For any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period; (B) A person who has come to or stays in India, in either case, otherwise than(a) For or on taking up employment in India, or (b) For carrying on in India a business or vocation India, or (c) For any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period; (i) Any person or body corporate registered or incorporated in India, (ii) An office, branch or agency in India owned or controlled by a person resident outside India, (iii) An office, branch or agency outside India owned or controlled by a person resident in India.

Person of Indian origin

Section 2 (xii) of the FEMA (Deposits) Regulation, 2000 4 provides'Person of Indian Origin' means a citizen of any country other than Bangladesh or Pakistan, if a) he at any time held Indian passport; or b) he or either of his parents or any of his grand- parents was a citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955 (57 of 1955); or c) the person is a spouse of an Indian citizen or a person referred to in subclause (a) or (b). PIOs definition with respect to immovable property The definition of PIO has been further narrowed5 when it comes to acquisition and transfer of immovable property in India. It excludes citizens of Pakistan, Bangladesh, Sri Lanka, Afghanistan, China, Iran, Nepal and Bhutan. The intention

4 5

Supra note 3 http://www.femaonline.com/nricorner/nri_defin_def.htm, Accessed on 23/03/10. Also see Foreign Exchange Management (Acquisition and transfer of immovable property in India) Regulations, 2000, Notification No.FEMA 21 /2000-RB, 3rd May 2000, RESERVE BANK OF INDIA (EXCHANGE CONTROL DEPARTMENT) CENTRAL OFFICE, http://rbidocs.rbi.org.in/rdocs/notification/PDFs/13271.pdf, Accessed on 23/03/10.

Gujarat National Law University behind conical of definition is to ensure & restrict control of immovable properties in the hands of strictly defined persons of Indian Origin only, for determining the Indian origin herein a PIOs father or grand father's birthplace or Indian citizenship at any time is to be considered unlike earlier other definitions referring to parents or grand parents. Thus we can summarise the definition of NRI as(A) Indian Citizen residing outside India, (B) Foreign Citizen of Indian origin residing outside India (1) (2) who held an Indian Passport at any time ,or who himself or his father or grandfather was a citizen of India.

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Basic Concepts of Succession

The concept of property has been divided into movable and immovable properties. This system of division of property is called scission system. This system is followed in most of the common law countries. In India, the scission system is followed vide Section 5 of the Indian Succession Act, 1925. The other system is Unitary System where both the immovable and movable properties are taken as a single mass. It is being followed in Civil law countries such as countries in continental Europe and Latin America. Every country has its own domestic laws to deal with devolution of property, regarding both the testamentary and intestate succession. The predicament arises when the property is located in one country and the owner is resident or domiciled in another country and dies testate or intestate. The question that arises is regarding the application of law that will govern the question of succession.

Doctrine of Lex Situs and Succession

In all civil law countries, all matters of succession are governed by the law of the nationality of the deceased, i.e., the principle of unity of succession.6 All matters of succession; testamentary as well as intestate, are governed by the law of the nationality of the deceased at the time of his/her death. However, the common law countries, especially England and India, have adopted the doctrine of Lex Situs7 & lex domicilli,8 under which movable and immovable properties do not devolve under one single system of law. For e.g., if a British national or one domiciled in England dies, leaving behind immovable properties in India; then devolution to his property would be governed by the Indian law, i.e., Lex Situs. This principle of Lex Situs gains statutory recognition by Section 5 of the Indian Succession Act, 1925. This doctrine of Lex Situs has also been given judicial recognition in the case of R. Viswanathan v. Rukn-Ul-Mulk Syed Abdul Wajid9 wherein the Supreme Court
6

Paras Diwan and Peeyushi Diwan, Private International Law Indian and English, (4th ed., Deep and

Deep Publications, New Delhi, 1998)

7 8 9

The term Lex Situs (Latin) refers to the law of the place in which property is situated. The lex domicilii is the Latin term for "law of the domicile" AIR 1963 SC 1

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Gujarat National Law University observed that succession to immovable property is governed by Lex Situs. This was more recently given assent in the case of Daljit Singh and Anr. v. Yogeshwar Prasad10and in Maria Luiza Valentina Pereira and Anr. Vs. Jose Paulo Coutinho and Ors.11 Using this doctrine, and adding NRIs, PIOs and property issues, it gives us a really potent and legal labyrinth of issues. This paper would deal on the aspect of such property issues.

Position in English Law regarding succession to immovable property A. Intestate succession

Succession to immovable property in England is governed by the law of the situs.12 Accordingly, where the owner of immovable property dies intestate, the order of descent or distribution prescribed by the law of the situs is applied irrespective of the domicile of the deceased.13 Recognition of this rule can be demonstrated by the case of Re Rea
14

where a domiciled Irishman died intestate without issue in Ireland,

owning land in both Ireland and Victoria. The widow of the deceased was given the property in Victoria as per Victorian statute and the property in Ireland as per Irish Statute. Another decision enforcing the above mentioned doctrine is Re Collens15case where the deceased was intestate and domiciled in Trinidad and Tobago. He left property there and in England. The dispute regarding succession with respect to property in England was decided as per English law. Sir Nicolas Browne did not interpreted the English Statutory provisions but held the principle of Situs.. It is submitted that various criticism has been made against this rule16 and these has been recognized in few English Court decisions17. Main criticism against this rule is made by terming the rule as an historical anomaly from the time before 1926 when intestate succession to land was subject to rules different from intestate succession to personality. Domestic legislation on intestate succession would seem to
10

2006 (88) DRJ 698 2009 (1) BomCR 370 Bhushan Tilak Kaul, Conflict of Laws in Respect of Succession by Testamentary Dispositions, Non Resident Indians and Private International Law, ISIL, Hope India Publications, New Delhi, 2008. 13 Duncan v Lawson (1889) 41 Ch D 394 14 [1902] 1 IR 451 15 [1986] 1 All ER 611 16 Morris (1969) 85 LQR 339 17 Re Thom (1987) 40 DLR 184
11 12

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Gujarat National Law University be based on the assumption, erroneous in fact, that succession to all the intestate's property will be governed by the same law.

B. Succession through Will

The general rule in the case of testamentary succession to immovable property is, as with intestate succession, that it is the law of the situs of the immovable property which governs.18 (i) Capacity We find that it is a settled legal position that law of situs exclusively determines whether the testator has capacity to make a will for immovable property. (ii) Formal validity A will regarding immovable property, at Common Law, needs to comply with the formal requirements provided by the law of situs. The common law rules, in case of wills of movable property, have been engorged in the Wills Act, 1963. As per this Act the Will needs to fulfill anyone of the seven laws specified in Section 1, namely the territory where the testator was domiciled or habitually resident or of which he was a national, either when the will was executed or when the testator died, or the territory where the will was executed.19 This common law rule of compliance with the formalities provided by the law of situs has also been retained in the case of immovable properties. Although, the law of situs has been referred in the Wills Act, in terms of the internal law in force in the territory where the property was situated. (iii) Essential validity There is no uncertainty that law of the situs, including its choice of law rules, governs matters of essential validity. (iv) Construction A somewhat difficult question arises with regard to the construction of wills of immovable property. It has been seen that a bequest of movables is construed according to the law intended by the testator, which is generally the law of his domicile at the time when he prepared his will.20 The predicament is whether the English authorities extend the same rule to wills of immovable proper?
18 19

Supra note 11 Ibid 20 Ibid

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vi) Revocation A Will relating to immovable property may be revoked by a later valid Will. The validity of testamentary revocation of earlier Will, will be governed by Wills Act 1963.

Position in India regarding succession to immovable property A. Intestate Succession

In India, Law for both testamentary and intestate succession is provided in Part VI of the Indian Succession Act, 1925 and applies to all communities wholly or partly except Muslims. Thus this Act, visually governs members of all communities wholly or partly, except Muslims so far as the testamentary succession is concerned. In case of Intestate succession different rules of succession apply to members of each community. The testamentary disposition of a Muslim is governed by his personal law. To the Hindus Part VI of the Indian Succession Act applies with some modifications although with regard to testamentary succession, Hindus are mainly governed by Hindu Succession Act, 1956. As concerned to other communities like Christians and Parsis, the above mentioned Act applies fully. Indian law with respect to immovable property is quite similar to that of English law. Starting with the Indian Succession Act 1925, Section 5(1) deals with the immovable property 5. Law regulating succession to deceased person's immoveable and moveable property, respectively. - (1) Succession to the immoveable property in India of a person deceased shall be regulated by the law of India, wherever such person may have had his domicile at the time of his death; (2) Succession to the movable property of a person deceased shall be regulated by the law of the country in which such person had his domicile at the time of his death. (i) A, having his domicile in India, dies in France, leaving movable property in France, movable property in England, and property, both movable and immovable, in India. The succession to whole is regulated by the law of India (ii) A, an Englishman, having his domicile in France, dies in 1*[India], and leaves property, both moveable and immoveable, in 1* [India]. The succession to the

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Gujarat National Law University 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 1*[India]. On perusal of this section it is found that, the Indian succession law, first classifies the property of a deceased person into immovable and movable properties and thus accord a statutory status to the succession system followed in the common law countries. It is further submitted that sub section (1) recognizes the principle of Lex Situs and makes it clear that the succession to immovable property will be regulated by the Indian law since it is physically present in India. This principle is also applicable 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 time of his death. Application of Lex Situs to immovable property irrespective of the domicile of the deceased person is very much in consonance with the practice of other commonwealth countries in this regard.21 The provisions of sub section (2) deal with movable properties and provide that succession to such property shall be determined by the law of the country (lex domicili) where the property of deceased person is situated. The illustration with this section further clears the application of law. Since this project work is concerned with immovable property, sub section (2) is not being discussed in detail. Returning to the other governing Act, among Hindus the laws relating to succession are codified in the Hindu Succession Act, 1956 (HSA). It is submitted that in cases of intestate succession NR Is are facing a lot of problems from the third party claimants. The HSA unlike the Hindu Marriage Act does not have extraterritorial application. As it has been mentioned earlier the immovable property of Hindu NRIs situated outside India will be governed by his/her domicile. In the cases of intestate succession, natural succession among the category of heirs as per the order of succession will flow as per the Hindu Succession Act. Then, speculation, outsider claims, disputes among heirs and third party rights are endemic.

21

Jayaraj C., Should Indian become Part to The Hague Convention on the Law applicable to the Estates of Deceased persons, Non Resident Indians and the Private International Law, Hope Indian Publication, New Delhi, 2008.

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Gujarat National Law University The application of HSA in case of NRIs can be summarized into three principles22 (i) If a Hindu is domiciled outside India, succession to his immovable property in India will be governed by HSA. (ii) If a Hindu is domiciled in India, succession to his immovable property outside India shall be governed by the law of the country where the property is situated. (iii) If a Hindu is domiciled outside India, succession to his immovable property outside India shall be governed by Lex domicilli and not by HSA.

B. Succession through Will

To begin with, to eradicate speculation or counterfeit claims from claimants and pave a smooth succession, it is advisable for an NRI to execute a written Will, get it witnessed and registered. However in such perspective, the disposition of property that is situated partly in Indian and partly abroad, by an NRI of foreign domicile, poses some awkward questions. Few of the important ones are, should an NRI make a Will or leave his property to natural succession. If property is distributed through Will whether it should be a joint, composite or common Will of his properties in India and abroad? Where such Will should be registered and by whom? Is there a need to appoint a person to execute the Will in different jurisdictions? Should there be different Wills for separate properties in India and abroad? Are these different Wills to be registered separately in different jurisdiction? The important legal issues related to Will are being discussed below(i) Capacity Succession to movable property is governed by the lex domicilli i.e. the law of domicile of the deceased at the time of his death. The issue concerning over here is regarding the applicability of this general principle to capacity to make will? It is submitted that taking into account the arguments applicable under English private international law, it should be governed by lex domicilli of the deceased, at the time of making the will. For Hindus and Muslims the capacity to make will is regulated by their personal laws, at the time of making the will.23

22 23

Supra Note 1 Supra Note 11

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Gujarat National Law University (ii) Formal Validity It is submitted that India has not enacted any statute like the Wills Act 1963, (England). Wills Act was enacted after Hague convention in an attempt to move towards adoption of uniform rules relating to form of testamentary disposition. India has not yet rectified this convention. It is further submitted that some authors24 are of the view that in absence of a specific statute, the general rule enacted in section 5(2) of the Indian Succession Act, 1925 would apply to formal validity of Wills in case of movables. It is important to mention here that sub clause (2) is in respect of movable property and it is unclear whether this rule holds the same in case of Immovable property also. If it does apply than it can be said that Wills executed in India for movable property situated in India will be valid, if they comply with the lex fori. In case of a Will of foreigner domiciled abroad, the formal validity would be determined by the lex domicilii of the testator at the time of his death.

(iii) Material or Essential Validity The legal situation that seems to exist under the Indian Private International Law is that the rules applying to material validity will also be applicable to formal validity. Will made by foreigner will be governed by the lex domicilli i.e law of his domicile at the time of his death.25 (iv) Construction of Wills Provisions relating to construction are available in Chapter VI of the Succession Act, 1925. From sections 74, 75, 82 and 87 it is deduced that the cardinal rule of construction is to give importance to the intent of the person making such Will. If an uncertainty arises with respect to testator's intent, the law with which the deceased had most intimate association would be applied by the Court. This law can either be lex domicilli or law of the place where he made the will. However in case where the testator has mentioned the choice of law regarding construction, then it will be interpreted according to that law only. The court shall try as far as possible to give effect to the intent of the testator (section 87).26

24

Bhushan Tilak Kaul, Conflict of Laws in Respect of Succession by Testamentary Dispositions, Non Resident Indians and Private International Law, ISIL, Hope India Publications, New Delhi, 2008. 25 Ibid 26 Ibid

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Suggestions
Since Hindu succession Act is not applicable outside India, it is suggested that NRls of Hindu origin who have immovable properties in different countries should execute a joint composite Will. Execution of separate Wills for separate immovable properties in different countries should be avoided. Establishing genuineness of multiple Wills is difficult than that of a composite Will. Although it is optional in India, a Non-Resident Indian should register the Will separately in every jurisdiction. It is important to comply with the separate legal

requirements of different countries regarding registration of Will. Appointment of an executor for execution of Will in the jurisdiction where immovable property is situated is also suggested. This will result in helping the beneficiaries by simplifying the division of property in accordance to Will. A written will which is properly witnessed and registered precisely identifies the claimants and heirs. Multiple registration of Will results in seal of finality. Its vital for an NRI to act in advance and make the task of beneficiaries easier, who would be inheriting the property.

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Indian Judiciary and Rules Regarding Succession

The Supreme Courts of India has recognized the principle of Lex Situs in the landmark judgments of Vishwanathan Vs. Syed Abdul Wazid27 and in Sankanan Govindan Vs. Lakshmi Bharti28. These cases demonstrate the application of the conflict rules to immovable properties in India and recognition of Lex Situs. In Sankanan Govindan case, the deceased who was of Indian origin, having lived for 30 years died intestate in England. At the time of his death he left movable and immovable property both in England and in India. His private secretary and his attorney acquired the letters of administration in respect of his properties in England and the property was sold by them. The sale proceeds were to be divided equally between a sister and one brother. The issue that was raised before Kerala High Court was whether the heirs of the deceased, in respect of his immovable properties situated in England would inherit under English law (Lex Situs) or Indian Law (lex domicili). Raghavan, J., held that succession to immovable property is to be governed by the Lex Situs and therefore English law of succession would apply. It was also observed by the learned judge principle of Lex Situs would decide whether a particular property is movable or immovable. This was observed due to the fact that assets of the deceased were converted into cash and hence it was argued that property was converted into movable and Lex Situs would not be applicable. The court followed the decision of Re Berchtold29and held that since the interest left by the deceased was immovable, the succession to it would be governed by the Lex Situs even though property was converted subsequently into movable.30 It is submitted that under the Indian private international law also 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. Section 74 to 111 of the Indian Succession Act contains provisions relating to construction of wills. It is also submitted that when the issue of construction of will of a deceased person in respect
27 28

AIR 1963 SC 1 AIR 1974 SC 1764 29 (1923) 1 Ch. 192

30

On appeal this aspect of the decision has been confirmed by the Supreme, Court in A.I.R. 1974 SC 1764 though on the question of finding of domicile of the deceased the decision of Kerala High Court has been overruled.

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Gujarat National Law University of immovable property situated in India arises before an Indian court, the Indian court tends to apply the lex fori, i.e., rules of construction as provided in sections 74 to 111 of the Succession Act. This is deduced not merely from the provisions contained in these sections but also from the general rule laid down in sub-section (I) of section 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 c1ear and unambiguous dispositive words are to be given effect to, and not to be controlled by the so called intention of the testator.

Recent judgments
In Maria Luiza Valentina Pereira and Anr. Vs. Jose Paulo Coutinho and Ors. [2009 (1) BomCR 370] , The Bombay High Court held that rules of private international law, evolved by other countries, cannot be imported

mechanically. Such legal principles vary from country to country and are shaped by distinctive social, economic and political conditions prevalent in those countries. In respect of property situated in Mumbai, Indian Succession Act, 1925 will be applicable. Thus Court upheld the principle of Lex Situs. In case of Daljit Singh and Anr. v. Yogeshwar Prasad
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, Delhi High Court

discussed the case of R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid32 and upheld that in case of succession to immovable property situated in Indian, Indian law will be applicable. Thus the legal principle of Lex situs was upheld.

31 32

2006 (88) DRJ 698 AIR 1963 SC 1

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219th Report of the Law commission of India

Law commission of India in its 219th report33, forwarded on 30th March 2009, has focused on the need for family law legislations for Non-Resident Indians. The increasing number of NRIs in almost every jurisdiction and their significant contribution in the Indian economic and cultural progress makes it important for the Indian legislation to pass adequate laws. Commission, realizing that number of problems is myriad and legal solutions are very few, took suo moto research on the problems faced by the returning and non returning NRIs. With respect to the matters of succession Commission has recommended for simplifying and streamlining of the procedures by the respective State governments. Commission has emphasised on setting up of Fast-Track Courts for expeditious solution in accordance to a time bound schedule, for property related matters. There is an urgent need of such Courts in states with high NRI population so as to settle property related matters on priority. Commission has recommended for introducing a fresh legislation or else making necessary changes in the existing legislations to bring about above mentioned schemes. It has also suggested for establishment of a core committee of specialist in the field of Private International Law for preparing a comprehensive draft so that proper legislation can be brought out in best possible way. The Commission has also suggested for examining the relevancy and adaptability of The Hague Convention of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceased Persons.

Relevancy and adaptability of the Hague convention, should India be a party to the 1989 Convention?
There has been a recommendation by law commission for study of the abovementioned convention in respect of succession to immovable and movable property of deceased persons, so that prospects of its practical application and adaptation in India could be highlighted. It thus becomes important here to discuss some important issues regarding its applicability with respect to immovable property in Indian scenario. On bare perusal of the various sections it is submitted that the Convention
33

http://lawcommissionofindia.nic.in/reports/report219.pdf, accessed on 21/03/10.

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Gujarat National Law University does not distinguish the property into movable and immoveable as done under section 5 of the Indian Succession Act, 1925 and thus the existing legal institutions of succession has been rejected, both in terms of classification of property and the applicable law. The convention also does not recognize the principle of Lex Situs regarding immovable property.34 It reflects mainly the legal institutions prevalent in common law countries. In United States and United Kingdom also there has been a strong opinion by the Specialists that Hague Convention rejects the common law principles regarding Succession.35 Such views have also been expressed against US and UK joining the Convention. It is important to mention here that the Civil law countries which were leading in formulation of the said convention, themselves have not yet signed or ratified it. Only one country i.e. Netherlands, out of the four who signed the Convention, has ratified it. As per this convention a person is allowed to designate the law prevailing at the place of his habitual residence or of his nationality. Therefore if India ratifies this convention then an Indian may designate the law of some other country and the succession will be governed by the same law i.e. either the law of his habitual residence or nationality in relation to his immovable property in India. This will violate the rule of Lex Situs recognized by section 5(1). Thus it can be said that the said Convention is only a hurried attempt to provide the so-called common rules on the issue of succession. Hence the Hague convention should be a matter of study only to obtain an idea as it was the first step taken for unification of laws relating to succession. It is submitted that a specific legislation should be passed after studying the present Indian scenario.

34

Jayaraj C., Should Indian become Part to The Hague Convention on the Law applicable to the Estates of Deceased persons, Non Resident Indians and the Private International Law, Hope Indian Publication, New Delhi, 2008. 35 Ibid

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Conclusion
Even though the number of Indians migrating abroad is increasing each year the multiple problems created by such migration remain unresolved. The want of proper legislation, professional information and advice on Indian law has handicapped the disputes and situations relating to Family Law. The ambiguity regarding the application of law to the property situated in India, in case of NRIs has been cleared by recognition of the principle of Lex Situs. In India the legal principle of Lex Situs have been recognized and enforced by Section 5 of the Indian Succession Act, 1925 and the stand of judiciary have also been made clear by the various judicial pronouncements. Although the law is clear but its inadequate and there are still issues that stare at the face of Indian legal system due to absence of specific legislation for the NRIs and PIO. The judiciary has made its stand clear that the principle of Lex Situs is here to stay. However, absence of any specific legislation has increased the burden on Courts which in turn are taking refuge in the foreign jurisprudence. This need for new family law legislation in case of NRIs has been realized by the Law Commission. Commission has in its report provided few important recommendations regarding the NRI issues relating to Family Law. On perusal of the report it can be deduced that the report presents only a general idea regarding various dark areas. All the present problems faced by the NRIs have been presented without a depth research. In case of succession to immovable property, ratifying The Hague Convention will not be a concrete solution as this convention has its own limitations. A legislation that will be a carbon copy with changed names, of some other Common Law country, also will not be able to provide adequate assistance. Indian has its own unique legal system where religion still plays a vital role in succession related issues. A new legislation is needed for the Non-Resident Indians for whom inheriting or acquiring property in India is a cherished dream. It will be appropriate to conclude in the words of the 18th Law Commission of India, It is important to see what India can do for the NRI and not what the NRI can do for India.

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Bibliography
Books referred:
P M North and JJ Fawcett, Cheshire and Norths Private International Law (LexisNexis Butterworths, London, 13th ed, 1999) Paras Diwan and Peeyushi Diwan, Private International Law Indian and English, (4th ed., Deep and Deep Publications, New Delhi, 1998) Mulla, Hindu Law, Butterworths, India, New Delhi, 2000. Govindraj, V.C. & Jayaraj C., Non Resident Indians and Private International Law, Hope Indian Publication, 2008. Manupatranewsline, Vol. 4, 2008.

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