Private International Law Lecture on

Law of Property
Thangakhup Tombing
Asst. Prof. of Law, NLU Assam
Date: 07/11/2017
The Law of Property
• The jurisprudential approach of the concept of property-
personal law context and the secular law context,
commercial context.
• The PIL approach of the subject matter of ownership
towards moveable and immovable properties.
• The task of deciding what/ how and in which way legal
system treat the subject of whether it is movable or
immovable property, e.g. A plot of land is immoveable
property, a motor car is a moveable property, but how are
the interest in land to be classified?
The Law of Property
• The complex nature of property in PIL (Chesire 14th
Edition, p. 1194)
- The issue of determining whether the subject matter
of ownership is movable or immovable.
- Immovable property- Interest in land- legal estates
and equitable interests; or limited in duration such as
fees simple, entails and terms of years or independent
of the right to possession of the land, such as
easement, profits of rent charges.
The Law of Property
- Chattels like title- deeds, fixtures, fish in the pond
and key of house is immovable under English law.
- Building for the purpose of exhibition- UK law in
contradistinction to USA- case Public Service of New
Hamsphire v. Voudonas 84 NH 387 157 A 81 (1930)
- On determining what is moveable and immovable, in
case where the property is immovable the settled law
is lex situs.
The Law of Property
Classification and Situs- lex rei sitae (Govindaraj, Conflict
of Laws in India)
Classification a matter of semantics
- Property- movable or immovable- property as realty or
personality. Cases: Macdonald v. Macdonald, 1932 SC
(HL)
- The law to determine whether a property is movable or
immovable is the place where the property is situated.
Case: Row v. Jagg, (1911) 1 Ch. 179 .
- When property in issue is subject matter of a contract- it
is the intention of the parties- for determining the nature
of the property and other related transactions.
Nature of Property
- There is no distinction between realty and personalty
in India.
- Immovable property shall include land, benefits
arising out of land, and things attached to the earth, or
permanently attached to the earth.
-The General Clauses Act 1897, S. 3 (26)
- Movable property mean property of every description
except immovable property.
- The Transfer of Property Act 1882, S. 3
The Law of Property
Immovable property an inclusive concept:
- Immoveable not only means land but include- estates,
interests and charges in and over land.
- They include freehold and lease hold interest,
freehold land subject to trust for sale though the sale
as yet has not taken place, rent charges, mineral rights
and also the interest of mortgage.
- Title deeds, fixtures or growing crops, their
classification is for the law of the land to determine.
The Law of Property
Exception:
- Rent charges arising out of an equitable claim based on a
contract between the parties partake the character of
moveable property an actionable claim.
- Proceeds of sale of land lose their original character as
immoveable are normally treated as movables.
- Although an interest in partnership land retains its
character as immovable property, however claim in the
distribution of partnership assets in respect of payment
out of the assets of the value of share in partnership is
moveable.
- Harvested crop is a movable property.
The Law of Property
Lex situs of Property:
- The lex fori to determine the situs or location of the property- Row v. Jagg
(1911) I Ch. 179 CA
- A property may be deemed to have different locations for different
purposes e.g. A ship in territorial waters of a State is considered having its
location in that state and on contrary, a ship on the high sea maybe seemed
to be situated at her port of registry.
- A simple contract of debt is deemed to be situated at a place where it is
recoverable by action, the debtor‟s residence.- Nath Bank Ltd. v. Andhar
Manick Tea Company limited, AIR 1960 CAL 779 (Tea Planter‟s case)
- Debt due from a bank to a customer is located at the branch where the
customer has his account. Payne v. R., (1902) AC 552
- Debt on a policy of insurance at the place where the policy money is made
payable under the policy. Rabrindra N. Maitra v. Life Insurance Corp. Of
India, AIR 1964 CAL.141
The Law of Property
Negotiable Instruments and other Transferable Documents:
- Negotiable Instruments, bonds and securities which are
transferable by delivery have their situs at the place where
they are found. AG v. Glendining (1904) 92 LT 87.
- The situs of documents relating to shares, stocks and bonds
that are registered, is where the registers are kept. Young v.
Phillips (Inspector of Taxes) (1984) STC 520
- The situs of beneficial interest under a trust is the same of that
of the property.
- The situs of action against trustee is where the trustee
normally resides. Stamp duty (Queensland) Comm. v.
Livingstone (1965) AC 694 .
The Law of Property
Lex situs and immoveable property: (Govindaraj- p. 160- and PD – p. 405- )

- It is a settled law in PIL that the rights over immoveable property is governed by
lex situs i.e. the law of the country where it is situated.
- The concept of „eminent domain‟ whereby the State is the superior owner of all
lands situated within it as such, all rights relating to lands within its domain are for
the state to regulate in the exercise of its sovereign rights.
- Morris, “ the sovereign of the country where the land is situate has absolute control
over the land with his dominion...he alone can bestow effective rights over it; his
courts alone are, as rule, entitled to exercise jurisdiction over such land.” - Proctor
v. Frost (1938) 89 N.H. 304 (wife mortgaged her property in New Hamsphire to
become surety for her husband)
- It discredit the doctrine of renvoi, partially or fully. Rather than importing foreign
law the preferred law is the local law where the property is situated. R.
Viswanathan v. Rukn- ul- Mulk Syed Abdul Wajid (dead) AIR 1963 SC 1
The Law of Property
Capacity:
- Issues relating to the capacity to assign or to the
acquisition of an immovable property are governed by
the lex situs. Bank of Africa v. Cohen (1909) 2 Ch. 129,
C.A.; Nachiappa Chettiar v. Muthu Karuppan Chettiar
1946 Mad. 398; Labh Singh v. Chief Settlement
Commissioner, 1959 Punj. 575
- The law of the lex situs imposes restriction on foreigners
or on a class of persons to take property, then any
conveyance made to such person anywhere else in the
world would not be valid.
- E.g. Capacity of age in USA and India.
The Law of Property
Formalities:
- Rome convention on the Law applicable to Contractual Obligations,
1980: A.9 para 6:
“ If the subject matter of a contract pertains to a right in immovable
property or, as may be, a right to use immovable property, the
mandatory requirements of the lex fori of the country where the
peoperty is situated apply, irrespective of where the contract is
concluded and irrespective of the law governing the contract.”
- The parties to the convention are obliged to surrender within the
bounds of this provision any conflict of issues relating to
immovable propert.
- Any conveyance of immovable which fails to comply with required
formalities of the lex situs may give rise to an action in equity.
The Law of Property
Distinction between Conveyance and a Contract for Transfer of
Immovable Property; (PD – p.407- 408)
- It is an established law that in conveyance of immovable property
the formal validity of the transfer of property must be in a
accordance with lex situs.
- In the case of a contract for transfer of immovable property the
formal validity will be governed by the lex loci contractus.
- Cheshire, “A contract is binding so far as it relates to form, it
satisfies the requirement of the lex loci contractus or of its proper
law”.
- If a contract to convey land or other immovable property is valid by
proper law of the contract , then the contractual rights and liaibilities
of the parties can be adjudicated upon and action in courts of proper
law of contract for breach of contract would be maintainable.
Case: Re Smith, Lawrence v. Kitson, (1916) 2 Ch. 206
The Law of Property
Material Validity:
- Lex situs is the material or essential element for the validity of
the conveyance of immovable properties.
- Lex situs governs the tenure, the title and the descent of
immovable properties as wellas the nature of the estates that
cane be created.
- The material validity of a contract relating to immovable
property is governed by the law of proper contract. Labh Singh
case.
- Thus no disposition of or transaction can create an interest in
or right over immovable property which is not valid by the lex
situs, even though it is valid by the law of the country where it
is made.
The Law of Property
In Personam An Exception To The General Rule Of Lex Situs:
- The peculiarity of this jurisdiction is that the Courts cannot act upon the
immovable property but act upon the conscience of the defendant.
- “The English Courts of equity are, always have been, courts of conscience
operating in personam and not in rem and in the exercise of this personal
jurisdiction have always been accustomed to compel the perfomance of
contract ...” Ewing v. Orrwing (1883) 9 A.C. 34
- Ammendable jurisdiction:
a) Contracts relating to foreign lands: Archer v. Preston; Re Smith,
Lawrence v. Kitson, (1916) 2 Ch. 206
b) Fraud and other Unconsciable conduct: Crabstown v. Johnston (1796) 3
Ves. 170
c) Fiduciary relationship: Re Courtney , 1840 1 Mont. Chan.239
- Indian Context- S. 16 of the CPC - Kashinath v. Anant (1899) 34 Bom. 407;
Girdhari v. Sheoraj (1877) 1 All.431
The Law of Property
Succession- testamentary, intestate:
- The narrative of dissolution of property under on single system of law against
devolution by multi- system: civil system and personal laws system.
- Europe and other civil law countries, to the exception of France and Belgium, in
matters relating to succession are governed by the principle of unity of succession-
single system of law- the law of nationality of the deceased at the time if his
decease.
- India, England and other common law countries adopt the principle multi- system
approach system.
- Distinction between Civil law countries and common law countries- Indian –
administration of will- public document- to appoint heir v. Pvt. secret doc- disposal
of properties- hindu and muslim law approach- the Will Act, 1963.
- The application of lex domcilli and lex situs in the administration of succession
under PIL.
- S. 5 of the Indian Sucession Act, 1925
The Law of Property
Administration of Asset: ( Govindaraj, p. 167- )
- Dual function of collection of assets of the deceased debts
and due to him and payment to the creditors of their dues
out of the assets but this does not include the distribution
of the deceased net assets.
- Under Indian law letters of administration in respect of
intestate succession are granted to those who are related
to the deceased either through marriage or consanguinity
on order as specified by under law, notwithstanding the
fact that he had his domicile in a foreign country whose
succession law, testate or intestate differs from the law in
India.