JUDGMENT
Markby, J.
1. It is admitted between the parties that the Official Assignee as such Assignee is entitled to half of the said fund.
2. The argument before me has turned entirely upon the construction of the Succession Act, especially of Section 4, and it has been assumed throughout the argument that the questions which arise relate to moveable property. Section 4 of the Succession Act provides that “no person shall by marriage acquire any interest in the property of the person whom he or she marries, or become incapable of doing any act in respect of his or her own property, which he or she could have done if unmarried.” It is contended for the plaintiff, that that section must be read as if it had run thus: “No person having a British Indian domicile shall by marriage acquire, &c.” Mr. Evans for the defendant contends that the section governs every marriage in India. There has not been, as far as I am aware, any previous discussion as to the meaning of this section, and I must therefore be guided by the general frame and scope of the Act. In order fully to understand this, it seems to me necessary to consider, from a somewhat general point of view, how marriage in a foreign country affects the moveable property of the parties thereto.
3. Now what was the law before the Succession Act was passed? The law of India would not be easy to ascertain. It was probably the law of England, except so far as a personal law could be claimed by the members of any particular class; or some persons might say that there was no law of India–no lex loci at all. But it is not necessary now to inquire which of these two views is correct. It is more important to consider what was the law of Europe and America, for it is clear that the Succession Act was based upon the general principles current among persons of the Christian faith.
4. Now where, as in the present case, a man and woman having the same domicile marry during a temporary sojourn in a foreign country, and do not evince any intention to change their domicile, the law of all Christian countries is unanimous as to the interest which they acquire in the moveable property of each other. It is that interest which is given them by the law of the country wherein they are domiciled at the time of the marriage. Upon this point, all the authorities are, as far as I am aware, absolutely concurrent. This is in fact a branch of the more general proposition that moveables are always in contemplation of law supposed to be situate in the country where the owner has his or her domicile; and that principle can, in the present case, be applied without difficulty, because we are not embarrassed in the present case by any distinction between the domicile of the husband and the domicile of the wife, or by any change of domicile at or after the marriage. All these complications are avoided in the simple case which we are considering. I need only observe that the rule of law is not that moveables have no situs. They have a situs, but that situs is the domicile of the owner. This is, I believe, the true mode of stating the principle. The authorities in support of this proposition amongst the Civilians (as they are usually called) are innumerable; they will be found collected in Burge on Colonial and Foreign Laws, Vol. I, p. 632, where also the American authorities are referred to. For the English law, I may refer to Enohin v. Wylie 10 H.L.C. 1 and the remarks of Lord Westbury at page 15. He was there speaking of succession. But the rule is general; the rights which arise upon all occasions, whether upon marriage or succession, whether by the act of the parties or by the operation of law, are as to moveable property governed by the law of the domicile where, in contemplation of law, the moveables are situate.
5. It would, indeed, be unnecessary to insist upon this, which is an elementary proposition, were it not that in the case of marriage, Story, by representing the disagreement amongst lawyers as to the incidents of marriage to be far more extensive than it really is, and by not separating those propositions upon which they are agreed from those upon which they are not agreed, has thrown the matter into some confusion. The subject of our present consideration is laid down by Story for discussion in Section 135 of the Conflict of Laws, and is taken up again in Section 143. In Section 144, he narrows it to the cases where there has been no change of domicile. But even here he appears to find himself unable to draw any certain conclusion whatsoever from the multitude of authorities which he proceeds to quote. The passage relied upon by Mr. Kennedy in his argument (Section 186) is only put forward by Story as the doctrine maintained in the State of Lousiana, which, Story thinks, would probably be adopted in other parts of America. This exaggeration of the difficulties of the subject is mischievous. There are difficulties and conflict, but not upon all points. The exact state of the authorities is far more clearly stated by Burge in the work already referred to (ch. vii, Section 8). It will be there seen that where there is no change of domicile, the conflict of authority is confined almost entirely to the question whether the communio bonorum operates upon property situate in a country where the law does not recognize that incident of marriage. But neither this controversy, nor any controversy of an analogous kind, arises as to moveable property where husband and wife have the same domicile. The difficulty lies in extending the marriage laws of a country beyond the limits of that country. But in the case under consideration, this difficulty does not arise, for as Pothier says (speaking both of moveables and immoveables): “Toutes ces choses quiont une situation reelle ou feinte sont soujettis a la loi ou coutume du lieu ou elles sont situees ou censees d’etre.” And further on, after describing what are moveables, he says: “Toutes ces choses suivent la personne a qui elles appartiennent, et sont par consequent regies par la loi ou coutume qui regit cette personne, c’est a dire par celle du lieu de son domicile.” (Poth. Obl., ch. i, Sections 2, 23, 24.) Mr. Burge quotes a number of civilians to the same effect: the only shadow of a difference being whether this rule belongs to real law or to personal law; but the distinction, important as it is sometimes, for our present purpose need not be considered.
6. Bearing these plain and incontestable principles in mind, there is (as it appears to me) no difficulty in comprehending the frame and scope of the Succession Act. It was impossible in dealing with the rights which arise upon death to ignore the consideration of the rights which arise upon marriage. For the rights which arise upon marriage, only assume their real importance when the marriage tie is dissevered. And the first and most necessary thing to be done by the Succession Act in reference to marriage was to declare the lex loci of India as to the interest acquired upon marriage by the parties thereto in the property of each other. Until that was declared, no sound legislation could take place. This is done by the 4th section. That section contains the lex loci of India. And I may observe that it was placed exactly where it is placed now by the very learned persons who originally framed that Act. But it is not (as it appears to me) necessary, in order to prevent the operation of this section upon the moveable property of parties not having an Indian domicile to add any words to that section. It does not operate upon that property any more than the marriage laws of England operate upon the moveable property of parties not having an English domicile. The lex loci of India, like the lex loci of all other countries, is applicable to the immoveable property of foreigners sojourning but not domiciled here, but not to their moveable property. It was not necessary for the Legislature, when laying down the lex loci, to reserve in express terms a principle of law which is universally recognized. That this general principle was not intended to be disturbed is clearly shown by Section 44, which resolves in a particular way an old standing dispute as to the application of the principle. The preponderance of authority had been in favour of making the domicile of the husband, or at least that of the marriage, govern the rights of the parties where the domicile of the husband and wife were different. The Succession Act, where either of the parties has an Indian domicile, very reasonably submits all their rights both as to moveables and immoveables, to the territorial law of India. To that extent the jus gentium, or common law of nations, has been set aside or modified. From this point of view, it is easy to see why Section 4 and Section 44 are kept apart. The two sections deal with different subjects. The former declares the general lex loci of India; the second lays down a special rule to govern a particular case. It is not a modification of the lex loci, but a declaration of the law in a particular case.
7. From this point of view, nothing remains for the decision of the present case but to apply to this property the law of England, where, in contemplation of law, the property is situate; and there is no dispute that by the law of England the husband would be entitled to the whole. Whether this, strictly speaking, be jure mariti or jure successionis, is immaterial. Section 283[2] merely repeats and applies to a particular case the rule of law to which I have referred, and it might, perhaps, have been better omitted from the Act as in the original draft in fact it was.
8. I therefore consider that Howard Mark was entitled at his wife’s death to the whole of the emmoveable property of his wife, and that the funds, now in the hands of the defendant, belong entirely to the plaintiff as assignee of Mr. Mark’s estate.
9. The plaintiff, therefore, as Official Assignee, is entitled to recover the same, and there will be the ordinary money-decree for the amount. The costs on scale No. 2 will be paid out of the estate.
[1] [Section 44: If a person whose domicile is not in British India marries in British India a person whose domicile is in British India, neither party acquires by the marriage any rights in respect of any property of the other party not comprised in a settlement made previous to the marriage, which he or she would not acquire thereby if both were domiciled in British India at the time of the marriage.] [2] Application of moveable [Section 283: If the domicile of the deceased was not in Property to payment of British India, the application of his moveable property to debts, where the deceased's the payment of his debts is to be regulated by the law domicile was not in British of the country in which he was domiciled. India. Illustration.
A dies, having his domicile in a country where instruments under seal have priority over instruments not under seal, leaving moveable property to the value of 10,000 rupees, immoveable property to the value of 5,000 rupees, debts on instruments under seal to the amount of 10,000 rupees, and debts on instruments not under seal to the same amount. The debts on the instruments under seal are to be paid in full out of the moveable estate, and the proceeds of the immoveable estate are to be applied as far as they will extend towards the discharge of the debts not under seal. Accordingly one-half of the amount of the debts not under seal is to be paid out of the proceeds of the immoveable estate.
By Act VI of 1889, the words British India were substituted for the words “The county in which h was domiciled.” And the Illustration was repealed.]
