Abstract

In furtherance to the first three parts, the author aims to address the concepts viz. domicile, nationality and residency vis-à-vis testamentary succession</em >

1.   Introduction

2.   Concepts to be understood

2.1. Domicile

2.2. Nationality

2.3. Residency

3.    Dénouement

1. Introduction

The Concept of Domicile is of utmost importance when deciding the inheritance, especially for movable property. There is a common misconception between the terms domicile, nationality and residence. Hence, in this article, the author aims to address these concepts vis-à-vis succession.

2. Concepts to be understood

2.1. Domicile

Section 4 of the Indian Succession Act, 1925, pertains to succession to all persons but does not include Hindus and Mohammedans.

Hindus are governed by the Hindu Succession Act, 1956. According to section 30 of the Hindu Succession Act, 1956, “Testamentary succession</strong >”, any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him or by her, in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus.

Therefore, in cases of testamentary succession, the Indian Succession Act, 1925 will apply.

According to section 5 of the Indian Succession Act, 1925, Succession to the immovable 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. Succession to the moveable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death.

Thus the domicile plays a role in regulating the movable properties and the situs of the immovable property. For example, A, an Englishman, having his a domicile in France, dies in India, and leaves property, both moveable and immovable, in India. The succession to the 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 India.

This brings us to the question, what is a domicile?

A domicile in a simple sense means a permanent home or place where the person concerned resides with the intention of remaining for an indefinite period.¹ A person cannot be without a domicile i.e., there is a domicile of choice or a domicile of origin or domicile of dependence. Domicile can also be deemed by law.²

According to Sections 7 to 18 of the Indian Succession Act, 1925, the domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled; or, if he is a posthumous child, in the country in which his father was domiciled at the time of the father’s death. Further, the domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled. The domicile of origin prevails until a new domicile has been acquired and a man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin. A new domicile continues until the former domicile has been resumed or another has been acquired.

Further, the domicile of a minor follows the domicile of the parent from whom he derived his domicile of origin and, a person cannot, during their minority, acquire a new domicile. By marriage, a woman acquires the domicile of her husband, if she had not the same domicile before and a wife’s domicile during her marriage follows the domicile of her husband. The domicile of a widow will continue to be that of her husband until she changes it.^{3</sup > An insane person cannot acquire a new domicile in any other way than by his domicile following the domicile of another person.}

There are circumstances where it is possible for an individual to be resident in more than one country at the same time. In such circumstances of dual or multiple residences, a domicile of choice can only be acquired if this can be shown to be the chief or habitual residence.⁴

If a person dies leaving a moveable property in India, in the absence of proof of any domicile elsewhere, succession to the property is regulated by the law of India.

3.1. Nationality

‘Nationality’ and ‘Domicile’ are often confused and used interchangeably. Nationality arises from being a member of a particular state. Nationality implies allegiance.

Article 15 of the Universal Declaration of Human Rights declares that “Everyone has the right to a nationality” and “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”.

Nationality is a broader concept compared to Citizenship. Citizenship determines certain rights, duties, privileges, and obligations. A citizen of a State is a person who enjoys full civil and political rights while those who do not have such rights are called aliens.

Domicile is different from citizenship. A person may possess a particular nationality or citizenship and a different Domicile, or he may have a domicile but no nationality. In simple words, Domicile implies a connection with the territory, not membership of community which is at the root of the notion of citizenship or nationality.⁵ 

Part II of the Constitution of India (Articles 5-11) deals with the Citizenship of India. Article 5 speaks about the citizenship of India at the commencement of the Constitution. Article 11 grants powers to the Parliament of India to regulate the right of citizenship by law. Thus, the Citizenship Act, 1955, was enacted by the Parliament. It is an Act to provide for the acquisition and termination of an Indian citizenship, and the same Act speaks about the citizenship of India after the commencement of the Constitution. Under the Indian Constitution, certain fundamental rights are available only to citizens of India. Further, Article 9 of Indian Constitution says that a person who voluntarily acquires citizenship of any other country is no longer an Indian citizen.

An individual can be a citizen or a national of a country and acquire a domicile in another country.

3.2. Residency

Lastly, the article aims at addressing ‘residency’. A person could be a national of one country, have a domicile in another and be a resident in a third country. Residence implies purely physical fact, which means just living in a particular place, whereas for Domicile there are two conditions which need to be fulfilled i.e. residence and coupled with an intention to live at the place for an indefinite period.

A Non-Resident Indian is a citizen of India who holds an Indian passport and has temporarily immigrated to another country for the prescribed period or more for employment, residence, education or any other purpose. In a legal sense, the term “non-resident” refers only to the tax status of a person who, as per section 6 of the Income-tax Act, 1961, has not resided in India for a specified period for the purposes of the Income Tax Act. This is different from “Person of Indian Origin”, The Government of India considers anyone of Indian origin up to four generations removed to be a PIO, with the exception of those who were nationals of Afghanistan, Bangladesh, Bhutan, Nepal, Pakistan, or Sri Lanka. The prohibited list periodically includes China and Iran as well.

A non-resident is required to be cautious while drafting a Will to avoid any conflict of laws and smooth succession of wealth. Unless there is a change in domicile, it is advisable for a Non- Resident to execute separate Wills for properties outside India and properties in India.

4. Dénouement

Thus we have understood, the importance of domicile in determining the laws applicable in testamentary succession. In case of immovable properties, the law of the land will apply. Citizenship has a lesser role to play with respect to succession in India or with respect to the application of laws. In the case of Non-resident Indians it is advisable to have a Separate Will for properties outside India and properties in India.

1. Mohammad Raza v. State of Bombay, AIR 1966 SC 1436
2. Pradeep Jain v. Union of India, (1984) 3 SCC 654 
3. Sainapathi v. Sainapathi AIR 1932 Lah 116
4. Plummer v. IRC [1987] STC 698, [1988] 1 WLR 292 
5. Abdur Rahaman v. State, AIR 1964 Pat 384