The issues relating to immovable property in international scenario is dealt in a different way in different case laws. It had changes in principles from time to time.

1. BY
ADV. CAROLINE ELIAS
PRIVATE INTERNATIONAL LAW
IMMOVABLE PROPERTY

2. IMMOVABLE PROPERTY
 In a conflict of law case, the tasks of the judge includes
determining whether the res litigiosa (property under dispute) is
movable or immovable. The choice of law rule will depend upon
this decision.
 Rights over immovables are decided by the lex situs (law of the
place where the property is situated) . But in the case of movables,
other laws are also applicable.
 Consequently if the subject matter of ownership is regarded
movable by one system of law and immovable by another system
of law the question arises as to which classification should be
accepted.

3. JURISDICTION : THE MOCAMBIQUE RULE:-
In British South Africa Co. v. Companhia de Mocambique
[1893 A.C 602]
 The House of Lords laid down the rule that an English Court has no
jurisdiction to adjudicate upon the right of property in or the right to
possession of foreign immovables, even though the parties may be
resident or domiciled in England
 In this case the plaintiff company alleged that it was in possession of
large tracts of land in South Africa and the defendant company
wrongfully trespassed and took possession of those lands. The plaintiff
company prayed for a declaration that it was in lawful possession of
lands and ; an order of injunction against the defendant and; a large sum
of money as damages.
 The House of Lords decided and held that an English court has no
jurisdiction to entertain a suit with respect to foreign immovables.
 It is on the view that only the courts of situs will be able to make
effective orders in respect of landed properties.

4. EXCEPTION TO MOCAMBIQUE RULE :-
(1) First exception: The doctrine of “Penn v. Baltimore”
In this case an order of specific performance was granted to the
plaintiff who brought a boundary dispute case to an English
court, yet the land was in Maryland, in the USA. The parties to
the dispute were English and both lived in England.
The necessary condition for the exercise of jurisdiction in the
above case is that the defendant should personally be subject to
the jurisdiction of the court.
The court can pass a decree, which though personal in form, will
indirectly affect land abroad.
So a contract relating to foreign land, the above rule, creates a
personal obligation affecting conscience and can be enforced by
the personal process of the English court provided the defendant
is amenable to the jurisdiction of the court.

5. (2) Fraud and other Unconscionable conduct (unreasonable)
Fraud always creates a right in the injured party to sue the defendant
in personam wherever he can be found and irrespective of where
the cause of action has arisen or where the subject matter of the
action is situated.
It was so decided in the case of Cranstown v. Johnson. (1796)
 The plaintiff owned a plantation in the island of St.
Christopher (now called as Saint Kitts – an island in West Indies)
and the defendant got this plantation by a court sale according to
the law of st.Christopher, for a price much less than its market
value. The plaintiff was liable to pay to the defendant a sum of
money, but was unable to pay due to his absence abroad.
 This opportunity was utilised by the defendant to take action
under the law of st. christopher according to which a creditor can
proceed against an absent debtor.
 By this process without any actual notice to the plaintiff, the
defendant obtained a decree , executed it and got the plaintiff’s
plantation sold to him for a very low price.

6.  The plaintiff sued the defendant in England for the recovery of the
property. And the Court decreed in favour of plaintiff.
 As pointed out by the court the defendant has used the local law of
st. christopher, not for recovering the money due to him, but to
obtain an estate at an inadequate price.
 This gross injustice invited court’s interference requiring it to act
upon the defendant’s conscience.
[Such orders are difficult to apply when it will be a prohibited action
under the lex situs]
(3) Fiduciary relationship :-
A trust for instance, attached to foreign land can be enforced by the
English Court if the trustee is present in England, though the
author of the trust is not subject to its jurisdiction.
(4) Questions affecting foreign land incidentally arising in an
English Action:- e.g:- In Re Duke Wellington [ 1947, 2, All E.R.
843] WILLS made in England – properties in England & Spain. S

7. Admiralty jurisdiction in trespass :-
In The Tolten [1946, 1 All. E.R 79] Plaintiff Wharf in Nigeria got
damaged by the negligence of defendants ship. The Court held that
the ban imposed by the Mocambique rule is applicable in cases
where the High Court exercises its admiralty jurisdiction which is
conferred by the general law of the sea.
CHOICE OF LAW :-
 The established rule in USA and most of the continental countries
is that all questions in respect of rights over immovable property
should be determined by the application of lex situs.
 Thus lex situs governs :
(1) capacity to take immovables (2) capacity to transfer
immovables, where by sale, gift, mortgage etc. (3) formal validity
of transfer of immovables (4) essential validity of transfer of
immovables and (5) succession – both testate and intestate.

8. CAPACITY TO TRANSFER IMMOVABLE PROPERTY :-
 English private international law does not recognise a transfer of
immovable property unless the transferee has the capacity to take
under the lex situs.
 The transferor also should have the capacity to alienate according
to the lex situs.
 Under the law of United States, a person have the capacity to
transfer immovable property only when he completes 21 yrs of
age. Whereas under the Indian law he acquires capacity when he
completes the age of 18 yrs.
 He (Indian) has no capacity to alienate under the lex situs (if the
property is in a foreign land), although the alienation is perfectly
valid under Indian law.
 The Indian law is substantially the same as English law. Sec. 16 of
CPC provides that in matters relating to immovable property, the
suit be instituted in the Court where the property is situated.