Definitions of some important terms related to law

Definitions are always arranged alphabetically. It is called the Dictionary of legislatures. The terms like High Court, month, year, etc. are not defined but the terms not defined in this Act will be construed as the same as defined in the General Clauses Act, 1897.

(i) Administrator:

It is a Latin word to mean the provincial governor. But under this Act, he is a person appointed to administer the estate of the deceased by the court when a person dies:

1. Leaving no will/testament or dies intestate.

2. If there is a will, no executor is appointed and/or

3. If there is an executor, but no name is given and/or

4. When the executor refuses to act as an executor.

5. When the Executor is unable to act as such.

Thus, a person appointed to administer the estate of the deceased, is called as the administrator. The court then grants to him what is known as the Letter of Administration. Minor and/or Lunatics, cannot be granted Letter of Administration under CPC. A person who in law represents the estate of a deceased is called the legal representative. But for all practical purposes, under the Act, the Administrator and the Executors are called as legal representatives.

(ii) Executor:

Executor is a person appointed by the will maker to carry out the directions and wishes made in the Will. The executor is thus a person to whom the deceased has committed the execution of his will/codicil.

The maker of the Will thus makes the appointment of the Executors in the Will itself. Usually, they Will contains an express provision for the appointment of an Executor. In some cases, however, his appointment may be implied and in such cases, he is called as the executor according to the tenor of the Will.

An executor or administrator is not the absolute owner of the property of the deceased. But the property vests in him only for the representation purposes. He holds the property AUTRE DROIT (minister/dispenser of the property). The Executor has the property only under a trust to apply it for payment of the Testator’s debts and for such other purposes as he ought to fulfill in his capacity as executors. The property vests in the legatee only when the consent of the executors is given.

(iii) Probate:

Probate means the Certificate of court + Will. A mere certificate is not the Probate. It can be granted only to the ‘Executors’.

It is a document issued under the seal and signature of a court officer certifying that a particular will was proved on a certain date and a copy of the will is attached to such a Certificate.

A probate is a conclusive proof of (1) Appointment of an Executor named in that (2) Will was proved. Upon issue of the probate, the contents of will get validity.

Probate does not confer upon the Executor any title to property. It only perfects his title to it. Probate can be granted only after 7 days from the date of death of the testator.

Thereafter, probate establishes the will and validates all acts of Executor done by him from time of the death until the issue of the Probate.

Probate (or L/A) is conclusive proof/evidence of the:

1. Testamentary capacity of the testator. Findings of the Court are conclusive.

2. Probate is conclusive proof as to the geniuses of the will.

3. Once probate is granted, no suit will lay for a declaration that testator was not of a sound mind.

Case laws

1. Omission of beneficiary to apply for probate or for mutation is not a reason to dislodge the will.

2. Probate or Letter of Authority is necessary for securing order. However, it is no bar in filing the suit – it bars the executor or legal fee from establish and any right under which unless probate.

(iv) District judge:

The High Court judge, under Article 217 of Constitution of India, is appointed by the President with consultation with the Governor whereas the District judge is directly appointed by the respective Governors under Art 233 of the Constitution of India.

Thus, the District judge is always the subordinate judge to the High Court Judge. However, the term District Judge is so defined under the provisions of S 2(b) of the Act, that the ambit and scope of the term District judge is widened. It is only too well known that definitions in the Act are the Legislative Dictionary and therefore, for the purposes of the provisions of the Act, the term District Judge will have to be construed accordingly.

In the earlier Act of 1865, the expression District Judge was wide enough to include a judge of High Court but the Consolidating Act of 1925 (i.e., the present Act), however, had omitted this definition. The definition contained in General Clauses Act, also did not include the High Court Judge. Therefore, it was held that the High Court judge was not competent to issue the succession certificate.

This effect of the omission of the definition of District Judge from the Act was apparently not foreseen and therefore, the Amending Act of 1929 was introduced and hence, the present definition. It says: The District Judge is a judge of (1) Principal Civil Court (2) having original jurisdiction (Patna High Court does not have original jurisdiction and hence, it was held that the judge of Patna High Court is not a District Judge.) Similarly, the High Court of Delhi also does not have the original jurisdiction. In any case, it may clearly be noted that the term ‘District Judge’ does not have reference to persona designate but to a Court. Even an additional District Judge is included in the term.

(v) codicil/will:

It is a formal document and it has all the characteristics of a will. The General Clauses Act defines the term “Will” to include codicil also. The purpose of the codicil is to add, amend, vary or revoke, the earlier Will. At one time, it was considered to be a part of the will and stood revoked if the will was revoked. But under the modern law, that is not the position. Revocation of the Will does not ipso facto revoke the Codicil also. A defective bequest in a Will can be cured in the Codicil.

Codicil is the addition to Will or a document to support a will or additional part of the Will. The codicil (1) must be executed and (2) must have an attestation by at least two witnesses.

If Will is revoked, Probate cannot be granted on the basis of Codicil unless it is proved that Codicil was separate from the Will.

No Form is prescribed for codicil.

No registration is necessary but if will is registered, registration for codicil is necessary.

No Stamp is required.

All rules of interpretation of will will be applicable.

Domicile is neither defined nor is it explained anywhere in the Act. In Whicker v/s Hamz 1858 (28) L.J. Ch. 396, Lord Cranworth said that the term “Domicile” means permanent home and if that was not understood by itself, no illustration would help to make it intelligible. Dr. Dicey says Domicile of any person is the country which is considered to be his permanent home.

Residence is essential for acquiring domicile. As domicile and residence are usually in the same place, they are frequently used as if they had the same meaning. But the two terms do not have the same meaning or they are not the identical terms because a person may have two places of residence but not the domicile. The residence means (a) dwelling whether permanent or temporary. The term domicile denotes fixed permanent residence to which one, if absent, has Intention to come back. Thus, two things are essential to constitute domicile.

1. Residence

2. Intention to make it a home

(a) Residence: As regards the duration of the residence, no hard and fast rule has been laid down by the courts. If the intention of permanently residing in a place exists, a residence in pursuance of that intention, however short duration of stay may be, will establish the domicile. Domicile is thus, a question of fact and the presumption will always be in favour of continuance.

(b) Intention: Intention is an intangible fact. It is an act of mind and difficult to prove. The intention can be gathered from all events and circumstances of the life of a person. One Narayan Bikram Shah was born in Nepal. His father was domiciled in Nepal. But he was brought up in India and had married an Indian girl. He was elected as President of Gram Panchayat. His children were receiving education in India.

The Supreme Court of India took several factors into consideration and reached to a conclusion that Narayan Shah had acquired domicile by choice in India. Thus, it is always the cumulative effect of facts and events which are indicative of intention and it may be emphasized that no single fact is necessarily decisive. MOTIVE gives direction to a person’s intention. A criminal runs away from his country and settles down in another country or a retired person goes to another country and settles there. It cannot be said that their intention is to leave their domicile. But say, for example, refugees run away from their country to escape genocide, murder, etc. Their intention is to acquire a new domicile.

The Supreme Court of India laid down that apart from Indian domicile, there can be State wise Domicile also. The Bombay High Court in 1957 has also taken the similar view. But in the later case, the Bombay High Court has taken a different view that there can be no domicile in the State (different than the domicile in India). The earlier decision of the apex court was not cited in the later case and hence, there is a conflict. But law laid down by Supreme Court of India has always the binding effect. But the confusion or the conflict has arisen because of misconception between the domicile and citizenship/ nationality. Although a person may have more than domicile one but for the purposes of succession, a person will have only one domicile

2. Domicile and nationality/citizenship

European countries like France, Germany and Netherlands were divided into different provinces and each province had its own legal system. The 19th century witnessed the rise of nationalism and soon it began to be propagated that law of nationality should govern all personal matters. On the other hand, the law of nationality could not have been chosen to be governing law in personal matters for a simple reason that there is nothing like a national law. In India also, every community has its personal law.

In Federal Countries, normally, Domicile is of a particular State and not that of the country as a whole. Thus, a person would have a domicile in Texas and not in United States, Victoria and not in Australia.

Domicile refers to the civil status while nationality refers to the political status. A man may change his domicile without changing his nationality and vice versa. A person may be stateless but yet he cannot be without domicile.

The following in this connection may clearly be noted:

1. Domicile of origin comes in existence by operation of law and every person gets it on birth. Citizenship is acquired by free will or free volition.

2. There is a very strong presumption in favour of continuance. Such a presumption is very much stronger but it can be easily shaken if sufficient proof is available. It does not give rise to any such presumption.

3. It cannot be abandoned easily until a new domicile is required. Even if new citizenship is not acquired, the one in existence can be abandoned.

4. Domicile is never lost.

5. When a new domicile is acquired, the old one remains in cold storage, in abeyance and if newly acquired domicile is given up/lost, the domicile of origin of the earlier domicile is automatically revived, i.e. there is no vacuum.

3. Kinds domiciles

(a) General

Succession to immovable property will be according to the law of India and movable property as per the country of Domicile of the deceased. However, Section 4 lays down that chapter on Domicile (given in the Act) will not apply to Hindus and Muslims.

General rule is that every person must, at all times, possess a Domicile. Therefore, for every child, as soon as he is born, law attributes to him a domicile. This is called as domicile by Birth or Domicile of origin. It continues until death or until a new one is acquired.

Section 6 says only one Domicile:

1. Either by operation of law or 2. By choice.

The general principle is that the dependent person has the domicile of the person upon whom he/she is dependent. Minors, lunatics and married women are called as dependent persons. However,

Wife – Living separately.

Minor – Haying separate residence cannot acquire a domicile of their choice.

(b) Domicile of Origin

The Domicile of origin is involuntary. It is the creation of law and not of a party. It may be extinguished by the act of party (Domicile of choice). Section 7 says that child will take the Domicile of its father. If at the time of birth, father is alive, the Domicile of his father will be the domicile of the child. If father changes his domicile, by operation of law, domicile of child will also change. If, however, father is deceased at the time of birth (i.e., posthumous), the domicile of his father at the time of his death will be treated as the domicile of child and then arises no question of change of domicile by father (because he is deceased).

As such, question of any change in domicile of the minor will not arise. Indeed on attaining the majority, he can choose his domicile if he so desires. The age of majority in India is 18 years. Section 7 must be read with Section 14 which lays down that the domicile of minor follows the domicile of parent from whom it derives the domicile of origin.

Section 8 Says Domicile of illegitimate child is in the country in which his mother has the domicile.

No person should be without the domicile and to secure this, law attributes to every child, the domicile of father and that of his mother if it is illegitimate. It is therefore, for this reason that it is said that domicile is trusted upon the moment a person is born and hence it is involuntary domicile in contradistinction to domicile by choice.

After Death of Parents: In English Private International Law, Domicile of the legitimate child after death of the father is the domicile of MOTHER PROVIDED the child is living with the mother. If the mother remarries to a person of different domicile then in that” case, child will not change his domicile. But in India, child retains the domicile of its father.

(c) Domicile by Choice

Domicile is acquired by taking up fixed habitation. But not in case of (1) the Civil, Military, Naval or Air Force Services in India and (2) when one leaves India in exercise of any profession or the calling. It is pertinent to note that Section 9 lies down that a man may change his domicile as often as he pleases. But it also states that the Domicile of origin, nevertheless, prevails until a new domicile is acquired, while Section 10 lies down that a man acquires a new domicile by taking up his habitation elsewhere.

Any independent person may acquire a domicile of choice. But for acquisition of Domicile of choice, residence (in the county other than the country of domicile) is essential. The term residence is an elastic term. It does not however take into its fold a traveller, tourist, visitor, etc. Long residence is not enough nor does a short or a brief residence rebates the domicile. The residence must however, answer, qualitative as well as quantitative test. Therefore, two factors must be present in each case, namely (1) the actual residence and (2) intention (factum) to stay there permanently.

The law always presumes against a change of Domicile and it is on the person who relies on the change of domicile, must prove (1) intention to abandon the Domicile of Origin and (2) adopting a new one.

An Englishman comes to India on an ONGC assignment. He does not acquire Domicile in India. But if an Englishman comes to India leaving England and he intends to adopt India as his home, he acquires the domicile (formalities apart).

An Indian goes to England to wind up his business and for that purpose, lives there then he does not acquire the domicile of England.

Special mode of acquiring Domicile in India by Choice

The special mode of acquiring Domicile in India by Choice is laid down in Sections 9, 10, 11, 12 and 13.

Section 9: Old domicile continues until a new Domicile is acquired.

Section 10: By taking up residence. Earlier Domicile continues until new Domicile is acquired.

Section 11: For acquiring a new Domicile, one has to make and deposit a declaration in writing under one’s hand.

– But he should have been residing in India for not less than one year.

– Declaration has to be deposited with the offices appointed by the State Government.

Section 12: New Domicile, however, is not acquired on account of services in India, etc.

Section 13: Old domicile continues until another is acquired. But if the minor is married or holds office or has set up a separate business with the consent of the parents, he acquires a new domicile.

(d) Domicile by Operation of Law

Minor – Sections 7, 8, 14, 17

Lunatic – Section 18

Married Woman – Sections 15, 16, 20, 21

Domicile of Minor – Section 7 says that a child will take domicile of its father, if legitimate and that of mother if illegitimate (Section 8). By operation of Law, under Section 14, domicile of minor follows the domicile of parent from whom it derived its domicile of origin. And Section 17 says that during minority, new domicile cannot be acquired.

Domicile of Lunatic – Section 18 lies down that a lunatic cannot acquire a new domicile except by following the domicile of a person under whose care he is.

Married Woman – By marriage, a woman acquires the domicile of her husband. But hot if there is judicial separation or husband is undergoing a sentence of transportation. The underlying rule is that the domicile of a married woman is that of her husband and it changes with the domicile of her husband. It is based on the common law principle of “unity of person” of “husband and wife” are one in the eyes of law.

This rule is also expressed by saying that the husband’s actual and wife’s legal Domicile are one. Thus, it may be noted that Section 15 says that by marriage wife acquires domicile of her husband if she had not the same domicile that of her husband whereas Section 16 says that during marriage, her domicile follows that of her husband except (1) judicial separation or (2) Transportation sentence is imposed whereas Section 20 says that by reason of marriage, a woman or man is not disabled to deal with his/her property and the other spouse gets no interest in the property whereas Section 21 says that that is so even if one of the spouses is Indian and other is not. However, as is clear from Section 4, this provision has no application to Hindus, Muslims, Buddhists, Jains and Sikhs.