This Article is written by Bharatee Preeya A.K. student of Alliance University.
The development of high-speed transport and an expansion of international trade have led to a growing number of people traveling across the globe for various purposes such as education or job search. In turn, this led to the development of international private law. The conflict of law or Private International law is a branch of jurisprudence arising from the law of various nations that applies to private citizens of various countries who interact or transact business with each other. Private international law or the conflict of law regarding property is a broad topic, as it encompasses many subtopics, including intra-vivo transactions and the intergenerational transfer of property as well as the devolution upon the death of property and so on. In most cases, English private international law is considered universally acceptable. If there is a question regarding movable property, the rules may change depending on the circumstances. For immovable property, however, Doctrine of Lex loci reisitae or to simplify Lex situs is universally recognized around the world. Therefore, this principle also applies in India, Europe, and the USA, since the convenience of execution is taken into the legal calculation.
Doctrine of Lex Situs:
LEX SITUS means the entire law of the country where the property is situated. As Morris puts it, “the sovereign of the country where the land lies in has the absolute authority over the land, and the courts of that country alone have the authority to determine its legal status” which is based on the principle of convenience. NELSON V. BRIDPORT is one of the earliest, English cases which deals with the Doctrine of Lex situs. It was clearly stated in the case that the incident to real estate the right of alienating, or limiting it, the course of succession to it or any transaction relating to the immovable property in the foreign land it depends entirely on the law of the country where the estate is situated. The difference between a conveyance and an agreement to transfer immovable property is that the former must be valid under the lex situs of the property whereas the latter need not be valid under the lexfori. The formalities of the contract for the conveyance of a house situated in the UK don’t have to comply with English law based on the lex situs in the case of two Indians who enter into a contract for the conveyance of a house situated there.
Court’s interpretation on lex situs across world:
Lex situs is a settled rule in both England, the USA, and also in Indian private international laws for all the cases relating to that capacity of giving or take immovable property is governed by the lex situs of property. For example, In the English case of DESCHAMPS V. MILLER, the father of the plaintiff had made a settlement of some immovable situated abroad in favor of his wife and others. The plaintiff challenged the validity of this settlement in an English court, the court declined the jurisdiction. The same principle was been held by the Supreme Court of the United States said in 1869, in the case of FREKE v. CARBERY.The court interpreted the Lex Situs as “the law of the situs of land conveniently determines descent, alienation, and transfer, and the effect and construction of conveyances”. For the purpose of private international law, a lease creates an interest in the immovable and is subject to the law of situs. Indian courts don’t have the jurisdiction relating to the foreign immovable by Section 16 of the CPC which is based on the principle of Lex situs. From the privy council decision in NEELKANT V. VIDHYA to all the recent cases the principle is followed. It is a well-settled principle in most countries. For example, in the case of the USA and India a person can convey property when he completes the age of 21 years in the USA and in India, it was 18 years of age and he can convey the property that is situated in new york much before 21, By the rule of lex situs the person has no capacity to convey immovable. On the other hand, if a US-domiciled person who had attained at the age of 18 conveys land situated in India then the conveyance would be valid as under the law if the situs of the land, he had the capacity to convey the land.
The exceptions to the lex situs are specifically getting its origin through the court’s interpretation especially the English courts.In the case of BRITISH SOUTH AFRICAN COMPANY V. COMPHANIA DE MACAMBIQUE an action of trespass was brought against the defendants for having broken into and taken into possession of large tracts of the land and mines in South Africa. The House of Lords held that an English court has no jurisdiction to entertain the suit regarding the immovable property situated in the foreign land. Stated more succinctly this decision signifies that the jurisdiction of the court is all-pervading except only where the action raises one or other two issues namely, first the title to the possession of the land abroad and recovery of damage to such lands. It was one of the major case that gives two exceptional situations where English courts can take cases beyond the principle of Lex Situs.
An English court will not exercise the jurisdiction in personam in relating to foreign lands except the matter of Enquiry, Admiralty, and Probate jurisdiction. Equitable jurisdiction in personam over the foreign lands had been exercised in three classes of cases those are involving
- Breach of Trust or fraud
- Breach of contract and
- Fiduciary in relation
Breach of Trust or fraud– Jurisdiction in respect to a breach of trust concerning foreign land is compromised within the general powers of a court of equity to make a decree in personam based on equitable obligation. This jurisdiction may be based not only on obligations arising from acts of the parties or the settlor, In cases involving fraud, but jurisdiction is also directed against the injustice which would entrails if a defendant subject to the jurisdiction were allowed with an impurity to exploit in an unconscionable manner. The opportunities offered by the lex situs of land against an absent plaintiff. This principle was held in the case of CRANSTOUN V. JOHNSTON
Breach of contract-The courts of equity have exercised their jurisdiction of ordering, Specific Performance of contracts relating to foreign land whenever the defendant has been present within the jurisdiction the same was held in the case of ARCHER V. PRESTON.
Fiduciary Relationship– The court of equity has also exercised jurisdiction to enforce the fiduciary relations in respect of land situated abroad. Thus a trust attached to a foreign land may be enforced by the court provided that the trustee is present within the jurisdiction even though the trustor is not subject to the jurisdiction. Similarly, personal equities arising from mortgages of foreign land have been enforced by the court. In the case of enforcement of an equitable interest created by a trust, the court would have to satisfy itself that such an interest properly existed according to the lex situs of the land, since that law has decisive and exclusive competence to determine what interest, legal or equitable can be created in such land. The same principle was held in the case of EWING V. ORR-EWING. English court would not recognize or enforce a foreign decree in personam relating to English law. An English court would enforce a defaulting trustee of a trust of a foreign land.
The most important exception to the general principle under which English courts refuse to exercise jurisdiction over foreign law lies in the practice of the court in the administration of the estate of the Deceased person. Where an application is made for the grant of probate or letter of administration or action is properly before the court of administration of the estate, that is normally where the estate compromise property movable or immovable situated in England. The court does not hesitate to deal with any foreign immovable property that also forms part of the estate and is limited to devolve in the same way as the English property. In other words, when the court is conscious of the need to make a choice of jurisdiction under such circumstances it makes the choice in its own favor.
To Conclude the reason for the rule is obvious: convenience and expediency; any other rule would be ineffective as in the last resort the only effective order that can be passed has to be in accordance with the lex situs of the property. These have certain exceptions even, but it played a major role in the avoidance of confusion and brings in uniformity with the concept of Private international law over the Immovable.
Archer vs. Preston, UK,1682 I Vem75
British South African Company vs. Comphania De Macambique, UK, 1893AC(602)
Cranstoun vs. Johnston,UK, (1796) 3 VES, 170
Deschamps vs. Miller, UK, (1908)1CH 856
Dr. Raju,Conflict of Laws, (Private International Law) Notes, (15th oct,2021,8.50pm)
Ewing vs. Or-ewing,UK,(1883)App Cas 34
Freke v. Carbery , US(1873) LR Eq 461
Neelkant vs. Vidya, Privy council, 1930 AC 188(India)
Nelson vs. Birdport, 8 Beav 547, English report- 50 E.R. 215
Theodere Roosevelt, Law of land,(1845-1846)Columbia university digital library, ( 10.10.2021,7.30pm)