On migration the family continues to be governed by the law of locality of origin and the burden is heavy on the party alleging otherwise.
Where a Hindu Marwari governed by the Benares School of Law migrated from Jodhpur into other part of India, where he died in 1942, it was held that the Hindu Women’s Right to Property Act, 1937, applied to his estate, on the ground that there is no warrant in law for holding that a migrating family which is immune from changes introduced in the law of its origin subsequent to its migration, carries with it into the new territory, where it takes up its domicile, a further immunity from any changes effected by statutes governing all the Hindus domiciled in the new territory.
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It is a settled law that there is a presumption that parties residing in a particular area governed by the lex loci unless migration is proved. The burden of proving that the family came from some other tract and is, therefore, governed by some other branch of Hindu Law is on the party which asserts it.
The ordinary presumption is that Hindu is governed by the law of the land where he resides. This presumption is, however, not based on the theory of lex loci but on the ground of its being a personal law.
In Bahuant Rao v. Baji Rao, the Privy Council said, “Where a Hindu family migrates from one part of India to another prima facie they carry with them their personal law, and, if they are alleged to have become subject to a new local custom, this new custom must be affirmatively proved to have been adopted.
The analogy is that of a change of domicile on settling in a new country rather than the analogy of a change of custom on migration within India.” Of course, if nothing is known about a man except that he lived in a certain place, it will be assumed that his personal law is the law which prevails in that place. In such a case domicile plays an important role.