Our office frequently encounters thought-provoking legal propositions while handling matters related to Private International Law. These cases not only titillate our legal acumen but also provide valuable insights into the diverse practices and principles in effect. Recently, while working on one such case, we came across a particularly interesting proposition, the details of which are as follows:

The proposition mentioned below is based on a case and includes law of testamentary succession in Private International Law.

THE FACTS OF THE CASE:

‘X’ who was an Indian, obtained citizenship of a Common law country in 1975. He created a will in the year 2006, granting fifty percent of all of his property equally to his daughter ‘C’ & his son ‘D’ (25% each) who are citizens of the same Common law country and the other fifty percent to his brother ‘E’ (Indian citizen). He later opened two bank accounts in India with an Indian bank (Salt Lake branch Kolkata) in the year 2010 this bank has a branch in common law country as well. ‘X’ died in 2017 but ‘E’ (brother of X) predeceased him in the year 2014. Probate was originally granted in 2019 to one individual ‘Y’ who was the executor but later the probate was amended and ultimately obtained by the claimant ‘C’ her brother ‘D’ respectively in 2021. After obtaining the probate, ‘C’ allegedly approached the common law country branch of the bank for release of the funds. Further, the common law country branch contacted the Indian branch of the bank for the release of funds. Since ‘C’ did not provide the necessary documents required by the Salt Lake branch to release the funds, the funds were not released. The claimant ‘C’ filed a claim before the highest Court of that Common law country stating that there exists a “consumer contract” claiming an amount of 500,000 Euro as deposited in the bank accounts in Salt Lake branch.

Questions–

1. Explain and elucidate as to which court has the jurisdiction to decide the matter- Indian Court or Court of that common law country?
2. Which law would be applicable in the present scenario? Is it the law of India or law of said Common law country?
3. Whether the legal heirs of ‘E’ are entitled to any share?
4. How will execution of the claim take place in India? What are the procedural requirements?

• Explain and elucidate as to which court has the jurisdiction to decide the matter- Indian Court or Court of that common law country?

Jurisdiction vs. Applicable Law – Preliminary Considerations

Jurisdiction refers to a court’s legal authority to hear and determine a matter, and it is distinct from the concept of applicable law, which governs the substantive issues of the case. Accordingly, the first and fundamental question in cross-border legal disputes is whether the court seized of the matter has jurisdiction to adjudicate it.

In the present case, the claimant ‘C’ has approached the highest Court of a Common Law country, alleging the existence of a “consumer contract” with the bank. Under private international law and consumer protection principles, when a consumer contract is involved, jurisdiction is generally conferred upon the courts of the place where the consumer is domiciled. Relying on this, the claimant has invoked the jurisdiction of the court in her country of domicile.

Challenging Jurisdiction – The Notion of Proximity and Real and Substantial Connection
The financial institution, however, may raise a jurisdictional objection based on the doctrine of forum non conveniens, invoking the principle of proximity or reasonableness that governs international jurisdictional considerations. This involves assessing factors such as the location of the subject matter of the dispute and where the cause of action substantially arose.

In this case, the funds in question are located in the Salt Lake branch of the bank in India. Accordingly, the most reasonable and proximate forum to determine the rights of the parties in respect of the bank accounts would be a court of competent jurisdiction in India. Moreover, even applying the “real and substantial connection” test, it is evident that the subject matter of the dispute—i.e., the funds—has a greater connection with India than with the Common Law country.

It is also relevant to note that although there may be proximity between the forum (Common Law country) and the claimant due to domicile, this does not override the jurisdictional preference for the situs of the disputed property, especially in matters concerning administration to movable assets.

Consumer Contract and Loss of Rights

The assertion that a “consumer contract” exists between the claimant and the bank appears to be legally untenable. The contractual relationship was originally between the deceased ‘X’ and the Salt Lake branch of the bank. The claimant, as a legatee under a will, does not automatically acquire privity of contract with the bank. Therefore, the basis for invoking jurisdiction on the ground of a consumer contract is flawed.

Cause of Action and Law of Domicile:

That said, in succession matters, the cause of action arises upon the death of the testator, and where the testator dies can be relevant for determining jurisdiction. Since ‘X’ died domiciled in the Common Law country, it could be argued that the courts there may have jurisdiction in relation to the successors or heirship of estate. Furthermore, under private international law, succession to movable property is generally governed by the law of the deceased’s domicile at the time of death, lending support to the jurisdiction of the Common Law country. Courts in Common Law country have jurisdiction to rule on the entitlement of heirs and interpretation of wills relating to movable property located outside the Common Law Country — because of the testator’s domicile and the nationality/domicile of the claimants. But for actual execution or administration of the property in India, the procedural requirements of Indian law (e.g., obtaining letter of administration or local recognition of probate) must be followed, even if the Courts in Common Law country has probated the Will.

Enforceability of Foreign Judgements:

Even if the highest Court of the Common Law country exercises jurisdiction and issues a judgment / decree in favour of the claimant, a crucial question remains: Can such a judgment / decree be enforced in India? In theory & practice, the decision may be enforced in India under the principles of comity of nations and reciprocal enforcement of foreign judgments, provided the Common Law country is recognized under the Civil Procedure Code, 1908, Indian Succession Act and other Indian laws.

However, Indian courts can also refuse enforcement on several grounds, including:

• Lack of jurisdiction under Indian private international law,
• Conflict with Indian public policy,
• Breach of any law in force in India

Hence, despite the theoretical enforceability, Indian courts may insist on adherence to procedure of Indian succession and probates for movable assets situated within the territory, since Courts of the Common Law Country court cannot directly administer assets in India.

• Which law would be applicable in the present scenario? Is it the law of India or law of said Common law country?

Under the principles of Private International Law, the question of applicable law arises when a legal dispute contains a foreign element—that is, when a court must examine or apply a foreign legal system to adjudicate the matter appropriately.

In the present case, such a foreign element is clearly present: the claimant ‘C’ has filed a claim before the highest court of a Common Law country, while the accounts forming the subject matter of the claim are located in India (Salt Lake Branch, Kolkata). Therefore, Private International Law principles are invoked.

Contractual Claim – Consumer Contract Argument

The claimant has contended that the dispute arises out of a consumer contract, thereby attempting to bring the matter within the scope of the Rome I Regulation (on the law applicable to contractual obligations within the EU context). The Rome I Regulation protects consumers in cross-border contracts by ensuring their rights under the law of their habitual residence, even if a contract specifies a different law. This may not be necessarily applicable to the case at hand.

Article 12 of the Rome I Regulation provides:

“In relation to the manner of performance and the steps to be taken in the event of defective performance, regard shall be had to the law of the country in which performance takes place.”

In this case, performance (i.e., release of funds) would occur in India, where the accounts are located. Hence, even under Rome I, Indian law would be the applicable law if a valid contract existed.

However, this argument is flawed in substance, as the claimant was not a party to the original contract. The contractual relationship was between the deceased ‘X’ and the Bank in India. The claimant, as a legatee under a will, has no privity of contract with the bank. Consequently, this is not a consumer contract dispute but a matter concerning succession to movable property.

Succession to Movable Property – Lex Domicilii and Lex Situs

In succession relating to movable property, two conflict of laws doctrines are relevant and come for consideration, which are- Lex domicilii and Lex Situs. Thus, the law of domicile and nationality of the testator plays an important role. Movable property encompasses assets that are not permanently attached to the land or any fixed structure. It includes both, tangible and intangible property. Tangible movable property includes- Furniture, clothing, jewellery, vehicles, electronics, livestock and goods etc. and Intangible movable property includes- money, stocks, bonds, bank deposits, good will, and intellectual property rights- copyrights, trademarks, patents etc. The two governing doctrines are as follows-

• Lex Domicilii – The law of the deceased’s domicile at the time of death governs the succession to movable property.
• Lex Situs – The law of the country where the property is located governs the administration and possession of that property.

This is affirmed in Dicey, Morris & Collins – The Conflict of Laws (Rule 121):

“The succession to movable property of a deceased person is governed by the law of his domicile at the time of his death, but the rights to possess and administer that property are governed by the law of the country in which the property is situated.”

Applying these rules:

• Since ‘X’ was domiciled in the Common Law country at the time of his death, the law of that country would govern the identification of heirs and the validity of the testamentary disposition.
• However, because the bank accounts are located in India, Indian law would govern the administration, possession, and procedural aspects of realizing the claim—such as obtaining probate, transferring funds, and compliance with local banking and succession procedures.

Practical Implication

Therefore, even though the Common Law country’s law governs the succession to the property (i.e., who is entitled), the actual process of enforcing that right—including the release of the funds from the Indian bank—is subject to Indian law.

This means that the claimant must satisfy Indian legal requirements, such as:

• Presenting a probate recognized under Indian law;
• Complying with the Indian Succession Act and Banking regulations;
• Possibly seeking relief in Indian courts for enforcement, especially if the bank refuses to act upon a foreign judgment or probate
• If a will is probated in a Common Law Country, that probate has no direct authority over the property in India, unless the said probate should be validated in India through a court.
• Even if the deceased died domiciled in England, an English grant does not of its own force vest in the personal representative any property which is or remains outside England; at most it gives the Personal Representative a generally recognised claim to be appointed as such by the Courts of the country where the movables are situated.[1]

• In how many shares the amount claimed would be divided? Whether the legal heirs of ‘E’ are entitled to a share?

Let us analyse the legal propositions as per the both Countries: 1. Analysis from the perspective of Indian law, if it was made applicable. 2. Since the law of the domicile is the applicable law in this case and the law of common law country is made applicable with respect to succession and legal heirship, we will also examine from the perspective of that country too.

Indian Perspective – Substantial Law with respect to succession

If we consider the facts of the present case wherein the claimant has approached the highest Court of the Common Law country stating that there is a consumer contract. If we deal with this issue as a consumer dispute, Indian law would be applicable due to the Article 12 of the Rome I Regulation and also for other legal considerations including the law of the place where the movables are located on the basis of “most connection” / proximity theory. We don’t ascribe to this theory though and therefore we

Division of shares as per Indian Law-

The will created in 2006 by ‘X’ bequeathed 25% to his daughter ‘C’, 25% to his son ‘D’, 50% to his    brother ‘E’ (Indian citizen). Thus, the estate was initially divided into three shares, with C and D jointly receiving 50% and E receiving the remaining 50%.

• Whether the legal heirs of ‘E’ are entitled to a share?

      As per the Indian Succession Act, 1925, the following legal principles apply:

• A legacy lapses if the legatee predeceases the testator, unless there is a contrary intention in the will.
• An exception to this is provided under Section 109 (anti-lapse provision), but it applies only when the legatee is a lineal descendant (child or grandchild) of the testator.

In this case:

• ‘E’ was the brother of the testator, hence a collateral, not a lineal descendant.
• He predeceased the testator in 2014, while ‘X’ died in 2017.
• Therefore, the legacy to ‘E’ lapses, and the share does not pass to his heirs or legal representatives.
• The lapsed legacy becomes part of the residue of the estate.

Additionally, because the 50% share was bequeathed to ‘C’, ‘D’, and ‘E’ in severable (not joint) interests, Section 106 does not apply. If it had been a joint bequest, the surviving legatees might have taken the whole by survivorship.

 Effect of Lapse of Legacy to ‘E’

• Upon the lapse of E’s legacy, his 50% share forms part of the residuary estate.
• In the absence of a residuary clause or alternate disposition in the will, the lapsed share is generally distributed among the remaining beneficiaries of the will.
• Thus, unless the will provides otherwise, C and D, being the only remaining legatees, would inherit the entire estate, divided equally (i.e., 50% each).

Division of shares as per Common Law- Substantial law with respect to the law of the Domicile as per the law applicable in this case relating to succession of movable property under a will.

Since the present case is a succession matter of in relation to movable property, the law would be governed by the principle of Lex domicilii. In the present case, since the testator has his domicile in a Common law country and also the cause of action arose in the Common law country, hence, English Law will be applicable.

• Whether the legal heirs of ‘E’ are entitled to a share?

            As per the Wills Act, 1837 the following legal principles apply:

• A legacy is rendered void if the legatee predeceases the testator.
• If a devise fails or is void by reason of the death of the devisee in the lifetime of the testator or by being contrary to law or is otherwise incapable of taking effect such interest shall be included in the residuary devise contained in that will.
• An exception to this is provided under Section 33, but it applies will contains a devise or bequest to a child or a remoter descendant of the testator (child or grandchild) of the testator.

In this case:

• ‘E’ was the brother of the testator, hence a collateral and not a child or a remoter descendant.
•  He predeceased the testator in 2014, while ‘X’ died in 2017.
• Therefore, the legacy to ‘E’ is void, and the share does not pass to his heirs or legal representatives.
• The interest shall be included in the residuary devise contained in that will

Effect of Legacy to ‘E’ being rendered void-

• Upon the legacy of E being rendered void, his 50% share be included in the residuary devise contained in that will
• Since the residuary devise contained in the will lies with C and D, therefore they are entitled to the share given to E.
• Thus, unless the will provides otherwise, C and D, having the residuary devise, would inherit the entire estate, divided equally (i.e., 50% each).

Another view in the same matter would be that the legal heirs of ‘Predeceased legatee’ would receive nothing, as the legacy to ‘E’ lapsed and no anti-lapse protection applies to siblings under English law. The lapsed legacy falls into the residuary estate, unless the will provides otherwise.

In this case:

The residue of the estate will be distributed according to the residuary clause of the will — or, If the will does not specify a residuary beneficiary, it is distributed under the rules of intestacy (which would usually benefit the next of kin). But here, C and D are already beneficiaries of the will, and the will itself gives them equal 25% shares, totaling 50% of the estate. So unless the will explicitly excluded them from receiving more than that, courts will often interpret that the residue should revert to the existing legatees (especially where no residuary clause exists and no contrary intention is expressed). Therefore, ultimately the practical implication of both the views is the same.

• How will execution of the claim take place in India? What are the basic procedural requirements?

As per Indian Succession Act, 1925 the right of an executor or legatee cannot be established, unless a Court of competent jurisdiction in India has granted Probate of the Will under which right is claimed or has granted a letter of administration with a copy of the authenticated copy of the Will. In the present case, the Will created in 2006 was executed in the Common Law country and the probate was also granted in that Common Law country. Thus, for the Will and the Probate to be sufficient in India, it must be authenticated by an Indian Court of Competent Jurisdiction. A foreign judgment is conclusive as to any matter thereby directly adjudicated upon and is not impeachable except on limited grounds enunciated under Section 13 (a) to (f) of Civil Procedure Code, 1908 wherein clause (f) provides that where a foreign judgment sustains a claim founded on a breach of any law in force in India such judgment is not conclusive. Additionally, there is a presumption that the foreign court which passed the order is a court of competent jurisdiction which of course, is a rebuttable presumption.

Furthermore, Section 44A of CPC, 1908 mentions that the decree of a superior court of a reciprocating territory can be directly executed in India as if it had been passed by a District Court.

Even the Delhi High Court in the case of BMO Trust Company vs State Bank of India & Anr. (MANU/DE/0857/2022) has held that a duly probated Will by a Foreign Court of competent jurisdiction is a conclusive proof of its legal character. The Court held that the only requirement for claiming rights in India under a probate granted by a Foreign Court would be to file an apostilled copy of the judgment of the Foreign Court. Such judgment, as is well settled, operates as a judgment in rem. Thus, the probate granted in 2021 is sufficient under Indian Law to claim remittance from Salt Lake Branch once an apostilled copy is filed. The Indian Succession Act, 1925 empowers the District Judge to grant probate of a will or a letter of Administration if it appears by a petition of the person applying for the same that the testator at the time of his decease had a fixed place of abode, or any property, moveable or immoveable, within the jurisdiction of the Judge. within whose jurisdiction any part of the property of the deceased may be found. In the present case the bank accounts are in the Salt Lake branch and that is why the District Court North 24 Parganas (which is the district court for Salt Lake branch) has the power to grant Probate. The claimant must approach the right forum for execution and the Indian Court can allow execution of a foreign judgment. However, without a properly authenticated probate from the competent court, it is not appropriate for the bank to release the fund.

CONCLUSION

In the above-mentioned factual scenario, the probate is granted by a court in common law country but the execution shall happen in India as per the law of place of the movable property, so that claimant can get the deposit released from the Bank/ financial institution in India. Thus, the apostilled copy of the grant of probate along with the original / apostilled Will and other necessary and relevant document must be presented before the competent court in India as narrated above. As per CPC a decree of a superior court of a reciprocating territory can be directly executed in India as if it had been passed by a District Court. If the probate order from the Common Law country is interpreted as a decree from a superior court of a reciprocating territory, it can be executed in India under Section 44A CPC as if it were a decree of a District Court in India. Additionally, C should have also made her brother D and the legal heirs of E a party to the suit as they are the necessary parties in this case.

We have tried to simplify the matter but if someone has any queries or wants to have a discussion on the question of law involved in the matter, please write to us on- office@lilythomas.org

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[1] Blackwood vs. R (1882) 8 App. Cas. 82 & 92; Morris the Conflict of Laws, 9^th Edn., David Mcclean and Veronica Ruiz Abou-Nigm Page no. 538 (Para 18-007)