1. The plaintiff in this case claims the balance of a fund which belonged to his wife, and which is now in the hands of the defendant, the Administrator-General, as representing her estate, and he bases his claim upon his right of succession under the English law. It appears that the plaintiff and his wife were married in British India in 1872. The plaintiff then had, and still has, an English domicile. The wife was entitled to a certain fund, subject only to a life-interest therein on the part of her mother. In 1879 the wife died, leaving as her next of kin her mother and her brother, both of whom are now dead, and their estates are represented in this suit. Subsequent to the death of the mother payment of the fund was made to the defendant, the Administrator-General, as representing the estate of the wife. On the plaintiff preferring his claim to the entirety of the fund the Administrator-General made a payment to him on account of and in part satisfaction of a half share, but reserved the remaining half share, the question having arisen as to whether that half share ought to go to the plaintiff or to the next of kin of the deceased wife. On the assumption that at the date of the marriage the wife had a British Indian domicile, it has been contended on the part of the Administrator-General that the case is governed by Section 44 of the Succession Act, and that under that section the balance of the fund is payable to the next of kin of the wife and not to the plaintiff. The sections of the Succession Act relevant to the question, and to which sections it will be convenient to refer in groups, are the following:
2. Sections 4 and 44 of the Act form the first of these groups. Section 4 provides: "No person shall by marriage acquire any interest in the property of the person whom he or she marries, nor become incapable of doing any act in respect of his or her own property, which he or she could have done if unmarried."
3. Section 44 provides: "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."
4. The next group, Sections 27 and 43, relate to the rights of succession as between husband and wife. Section 27 provides: "Where the intestate has left a widow, if he has also left any lineal descendants, one-third of his property shall belong to his widow and the remaining two-thirds shall go to his lineal descendants according to the rules herein contained. If he has left no lineal defendants, but has left persons who are of kindred to him, one-half of his property shall belong to his widow and the other half shall go to those who are of kindred to him in the order, and according to the rules herein contained. If he has left none who are of kindred to him, the whole of the property shall belong to his widow." Section 43 provides that "the husband surviving his wife has the same rights in respect of her property, if she die intestate, as. the widow has in respect of her husband's property, if he die intestate."
5. It is, I presume, under Sections 27 and 43 that the right of the husband to succeed to a half share has been admitted by the Administrator-General.
6. Sections 5, 15 and 283 are the next group of sections to which it is necessary to refer. Section 5 provides that "succession to the immoveable property in British India of a person deceased is regulated by the law of British India, wherever he may have had his domicile at the time of his death. Succession to the moveable property of a person deceased is regulated by the law of the country in which he had his domicile at the time of his death."
7. Section 15 provides that "by marriage a woman acquires the domicile of her husband, if she had not the same domicile before."
8. Section 283 provides that "if the domicile of the deceased was not in British India, the application of his moveable property to the payment of his debts is to be regulated by the law of the country in which he was domiciled."
9. In the case of Miller v. The Administrator-General I.L.R. 1 Cal. 412 it was held that Section 4 lays down a general rule as to the effect of marriage in respect of moveable property where both the married persons have an Indian domicile, and that Section 44 lays down a special rule to govern a particular case. In that case the applicability of these sections was considered in connection with the question of domicile, but the particular question now raised whether Sections 4 and 44 in any way affect rights of succession though suggested in argument, does not appear to have been dealt with as necessarily arising in the case, and the Court expressed no opinion thereon. There are two obvious and serious objections to the contention that Sections 4 and 44 should be read so as to include or be applicable to rights of succession. In the first place, rights of succession to a person's estate do not arise upon the marriage, but upon the death of that person. In the next place this contention, if correct, would bring these sections into direct conflict with Sections 5 and 15, 27 and 43 of the Act, which recognise and regulate rights of succession as between husband and wife. It seems impossible to adopt a construction which would create the anomaly of rights which are abolished or prohibited from arising by certain sections of the Act being treated as existing rights by other sections. In my opinion therefore Sections 4 and 44 read together should be understood as laying down a general rule as to the immediate effect of marriage in respect or moveable property belonging to each or either of the married persons not comprised in an ante nuptial settlement, and not as laying down a rule intended to affect the law of succession. The result is that I must Hold that Section 44 has no application to the present claim, and that the plaintiff is entitled to the whole of the fund.