THE INDIAN SUCCESSION ACT, 1925

CHAPTER I

BRIEF HISTORY AND DEFINITION

A. BRIEF HISTORY

Succession in India was earlier regulated by the Indian Succession Act, 1865. This Act was based mainly on English
Law, and subject to certain exceptions, constituted the law in force in British India, applicable to all classes of
testamentary and intestate succession. However, the exceptions were so extensive, that all natives of India were
excluded thereunder. So, in 1870, the Hindu Wills Act was passed. This Act provided that certain portions of the
Indian Succession Act would apply to all wills and codicils made by Hindus also Later. in 1881, the Probate and
Administration Act was passed and this Act was also made applicable to both Hindus and Muslims. Likewise, the
Parsi Intestate Succession Act, 1865, made provisions for succession in cases of Parsis who died without making a
wilt

The present Act, that is, The Indian Succession Act. 1925, consolidated the earlier Act of 1865, the Hindu Wills Act,
the Probate and Administration Act and also the Parsi Intestate Sucuession Act. The Preamble to the Act indicates
that the Act is intended to consolidate the law applicable to intestate and testamentary succession. To a great
extent, it embodies the rules of English Law. As regards matters not covered by this Act, Hindus are governed by the
Hindu Succession Act and Mahmedans by their personal law

B. DEFINITIONS (Ss. 2-3) 1. Administrator [S. 2(a)]

The term ”administrator” is defined to mean a person appointed by a competent authority to administer the estate of
a deceased person when there is no executor.

If a person dies without making a will, he is said to die intestate. To administer the estate of such a person, a person
is appointed by the Court, and such a person is known as an administrator In such cases, the Court grants Letters of
Administration to the estate of the deceased person.

Letters of Administration are also granted (under S. 232 of the Act) -

(a) if a person dies leaving a will, when no executor has been appointed under the will; or
(b) if the executor appointed by the will is legally incapable; or
(c) if the executor appointed by the will refuses to act as the executor of the will; or
(d) if the executor has died before the date of the testator’s death; or
(e) if the executor has died after the testator’s death but before he has proved the will.

It may also be noted that. under S. 211 of the Act, the executor or administrator of a deceased person is his
legal representative for all purposes

2. Executor [S. 2(c)]

”Executor’ means a person to whom the execution of the last will of a deceased is confided by the testator.

The definition of the term ”executor” appears to have been borrowed from Blacksrone’s Commentaries.
If a person has made a will, he is called the testator. His estate is administered by a person called the executor
of such will. An executor is normally appointed under the will and derives his authority from the will
Usually, the will contains an express provision for the appointment of one or more executors. In some cases,
however, the appointment of an executor may be implied, and in such cases, he is called an executor by
implication or an executor according to the tenor of the will.

It is to be noted that probate can be granted only to an executor who is appointed by the testator’s will. Such
an appointment may be express or by necessary implication. Thus, if A makes a will that C should be his
executor, if B does not agree to do so, B can be said to have been appointed as the executor of A’s will by
implication.

Under the Act, it is the duty of the executor to provide sufficient funds for the performance of the necessary
funeral ceremonies of the deceased, in a manner suitable to his condition in life, presuming, of course, that the
deceased has left behind him property which is sufficient for this purpose. (S. 316)

It is then the duty of the executor to collect all the debts owing to the deceased, pay off all the legal liabilities
payable by the deceased, and thereafter administer the estate (i.e. property) of the deceased according to the
wishes of the testator as reflected in his will. Within a year from the grant of probate by the Court, he must
also file an account of the deceased’s estate in the Court, showing all the assets which have come into his
hands and the manner in which they have been applied or disposed of. (S. 317)

Sometimes, a testator does not name any person as an executor, but assigns to him duties which are more or
less the duties of an executor. In that case, such a person can be treated as a constructive executor. However, in
such cases, it should be shown that the testator intended to impose on such a person the essential duties of an
executor, namely, the obligation to collect his assets and pay his funeral expenses, debts and legacies. Thus, in
one case, where an executor was not appointed under the will, but the testator left behind directions to his mother to
pay certain debts out of certain funds, the Madras High Court held that this did not make the mother an executrix of
the will. (Kuppayammal v. Ammal, (1899) 22 Mad. 345)

(The difference between an executor and an administrator is discussed in a later Chapter.)

3. Will [S. 2(h)]

”Will” means the legal declaration of the intention of a testator with respect to his property which (intention) he
desires to be carried into effect after his death.

(The entire law relating to wills has been discussed in a later Chapter. A specimen form of a will is to be found in the
Appendix to the book.)

4. Codicil [S. 2(b)]

”Codicil” means an instrument made in relation to a will, which explains, alters or adds to what is contained in the
will and which is deemed to form part of the will.

Blackstone defines a codicil as ”a supplement to a will or an addition made by the testator, and annexed to, and to be
taken as part of a testament, being for its explanation, or alteration, or to make some addition to, or else some
subtraction from, the former disposition of the testator.”

The effect of a codicil is to bring the will down to the date of the codicil and to effect the same disposition of the
testator’s property as would have been effected if the testator had, at the date of the codicil, made a new will
containing the same disposition as in the original will with the alteration introduced by the codicil (Goonewardene v.
Goonewardene [1931] AC. 647)

”A Codicil is of a similar nature to a will as regards both its purpose and the formalities relating to it, but in general.
it is supplemental to and considered as annexed to, a will previously made, being executed for the purpose of
adding to, varying or revoking the provisions of that will”. —HALSBURY

Thus, a person who has made a will containing ten clauses may, on a later date, wish to change one of the clauses In
such a case, it would, of course, be open to him to make a fresh will with the altered clause. Alternately, he may
make a codicil to alter the clause in question, and clarify (in the codicil itself) that the other nine clauses stand
unaltered.

Likewise, if the testator has made a will containing ten clauses, and later, he wishes to add one more clause, two
options are open to him. He can either make a fresh will of all the eleven clauses — or he can make a codicil
containing only the new clause, clarifying that this clause is in addition to all the ten clauses of his will

At one time, it was thought, in England, that since a codicil is a part of a will, it stood revoked if the will was
revoked. However, this is not the position to-day, and it has been held that the revocation of a will does not ipso
facto r woke the codicil.

All the provisions of the Act relating to signature, attestation, etc., of wills also apply to codicils

(A specimen form of a codicil is given in the Appendix to this book )

5. District Judge [S. 2(bb))

’District Judge” means the Judge of a Principal Civil Court of original Jurisdiction

8. Indian Christian [S. 2(d))

”Indian Christian” means a native of India who is, or in good faith claims to be of unmixed Asiatic descent, and who
professes any form of the Christian religion

7. Minor (S. 2(e))

The term ”minor” means a person who has not completed the age of eighteen years.

8. Probate (S. 2(f))

Probate means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of
administration to the estate of the testator.

Thus, a probate is a document issued under the seal of the Court and under the signature of a proper official (such
as a District Judge or Registrar of a Court). certifying that the original will was proved on a certain date, and to this
is attached a certified copy of the will of which probate has been granted. This grant and the copy of the will both
together form the probate However, a mere copy of the grant, without a copy of the will annexed, is not a probate.

The legal effect of the grant of a probate is that it conclusively establishes the legal character of the person to whom
it is granted. Moreover, it is also conclusive evidence of the testamentary capacity of the testator and of the validity
and due execution of the will itself.

A probate can be granted only to an executor appointed by the will. As stated above, the appointment of the executor
may be express or implied. (S. 222)

A probate cannot be granted to :

- a minor; or
- a person of unsound mind; or
- an association of persons - unless it is a company which satisfies the conditions prescribed by rules made by the
State Government.

There are seven important consequences of the grant of a probate, namely -

(a) A probate has effect over all the property of the deceased throughout the state in which it is granted. When
probate is granted by a High Court, it has effect over all the property of the deceased in the whole country.
(b) The grant of a probate is conclusive evidence that the testator had a legal capacity to make a will.
(c) It is also conclusive evidence as to the factum and validity of the will
(d) Probate is also conclusive evidence of the genuineness of the will and the appointment of the executor or
executors.
(e) However, a probate is not conclusive evidence of the domicile of the deceased even though this question may
have arisen in the probate proceedings.
(f) Once a probate is granted, no suit can be filed for a declaration that the testator was not of sound mind
(g) A probate is conclusive as to the representative title of the executor against the debtors of the deceased and
provides a complete indemnity to such debtors.

When several executors are appointed by the will, probate may be granted to all of them simultaneously or at
different times Thus. if A and B are executors of a will, probate may be granted to A and B at the same time, or to A
first, and then to B, or to B first, and then to A. (S. 224)

If a probate of a will is granted, and thereafter, a codicil is discovered, a separate probate of the codicil may be
granted to the executor, if the codicil does not repeal the appointment of the executor made by the will. If. however,
a different executor is appointed by the codicil, the probate of the will (granted earlier) is to be revoked, and a new
probate is to be granted of the will and codicil together (S 225)
(Note : A reference may be made to Chapter IX for detailed provisions of the Act dealing with probates.)

9. State [S. 2(g)]

”State” includes any division of India having a Court of the last resort.

10. Exempted person [S. 3(3)]

Exempted persons are persons exempted by the Government from the operation of some of the provisions of the Act

From time to time, the Government issues Notifications exempting certain classes of persons from the operation of
the Inchon Succession Act, e.g., the Khasias and Syntengs of Assam, the Pans of Bihar and Orissa, and the Native
Christians of Coorg.
CHAPTER II

DOMICILE (Ss. 4-19)

Applicability of the Chapter

This Chapter does not apply if the deceased was a Hindu, Muslim, Buddhist. Sikh or Jain (S 4)

This Chapter is discussed under the following two heads :

A Law regulating succession
B Law relating to domicile.

A. LAW REGULATING SUCCESSION (Ss 5 & 19)

Succession to —

Immoveable property in India

Immovable property left behind by an intestate in India is regulated by the law of India, wherever the deceased may
have his domicile at the time of his death: s 5(1)

Moveable property anywhere

Moveable property left behind by an intestate anywhere is regulated by the law of the country in which the deceased
has his domicile at the time of his death :s. 5(2).

Illustrations — (i) A having his domicile in India, dies in France, leaving moveable property in France, moveable
property in England, and property both moveable and immoveable, in India. The succession to the whole is regulated
by the law of India.

(ii) A, an Englishman, having his domicile in France, dies in India, and leaves property, bull moveable and
immoveable, in India. The succession to the moveable property is regulated by the rules which govern. in France,
the succession to the moveable property of an Englishman dying domiciled in France, and the succession to the
immoveable property is regulated by the law of India.

Moveable property anywhere

If a person dies leaving moveable property in India, then, in the absence of proof of any domicile elsewhere,
succession to the property is regulated by the law of India : s. 19.

The Indian law is based on well-established principles of English law, under which the moveables of a deceased are
regulated by the lex domicilli (law of the domicile) and the immoveables by the lex situs (law of the place where the
property is situated).

In a case before the Kerala High Court, the facts were, in short, as follow’ : Dr. Krishnan had lived in England from
1920 to 1950, in which year he died intestate (i.e. without leaving a will) in England, He had built up a sizeable
medical practice at Sheffield, where he had bought a building to house his surgery. The Court came to the
conclusion that he had died domiciled in India, and the question to be determined was whether the heirs to the
Sheffield property were to be reckoned by Indian law (lex domicilli) or by English law (lex situs). The learned
Judge came to the conclusion that as immoveable property is governed by lex situs, the English law of succession
applied to the Sheffield property. The Judge further observed that whether a particular property is moveable or
immoveable is also to be determined by the lex situs, i.e. English law in the present case. (Sankaran Govindan v
Lakshmi Bharati, A I.R. 1964 Ker 244)

B. LAW RELATING TO DOMICILE (Ss. 6-18 & 21)

WHAT CONSTITUTES DOMICILE

The term ”domicile” is not defined in the Act. The domicile of a person is the place where he has his -true, fixed,
permanent home and establishment to which he intends returning”. Two things are, therefore, essential to constitute
domicile — (1) Residence, and (2) Intention of making it a home of the party. It follows therefore that domicile may
be acquired by residence, but residence at a place does not necessarily make it a place of domicile, inasmuch as
mere residence, without any intention of making it the permanent home, would not be sufficient.

Thus, a person can be said to acquire a new domicile only if he proves two things, viz., factum of residence in that
country, and (ii) animus manendi, i.e., an intention to stay there permanently or indefinitely

It has rightly been observed that ”domicile” is a term which is easy to describe, but difficult to define. In Halsbury. it
is defined as that country in which a person has, or is deemed by law to have, his permanent home.

In Craignish v. Craignish, it was observed: ”That place is property the domicile of a person in which his habitation
is fixed without any present intention of removing therefrom ”.

Domicile thus means the country which is taken to be a man’s permanent home for the purpose of determining his
civil status It is thus to be distinguished from ’allegiance’, which determines a person’s political status.

As regards the duration of the residence, no hard and fast rule has been laid down by the Courts ”It the intention of
permanently residing in a place exists, a residence in pursuance of that intention, however short, will establish a
domicile” (Bell v Kennedy. 1+,68 LA 1 SC & Div. 307)

In federal countries, normally, domicile is of a particular state, and not of the country as a whole Thus, a person
would be domiciled in Texas. and not in the U S.A., Victoria, and not in Australia.

An interesting question that came up for judicial interpretation was whether, in India. domicile can be only of the
country as a whole, or whether there can also be domicile of a particular State of India. In 1955, in Joshi v. The State
of Madhya Bharat, the Supreme Court observed that apart from Indian domicile, there can also be domicile of a
State A similar view had also been expressed by the Bombay High Court in the same year in Radhabai v. The State
of Bombay

However in a later decision (in 1957), The State v. Narayandas Mangilal Dayame, the Bombay High Court gave a
judgment to the effect that there can be no domicile in a State of India. It observed that ”it is a total misapprehension
of the position of law in India to talk of a person being domiciled in a province or in a State. A person can only be
domiciled in India as a whole”. It is interesting to note that this decision of the Bombay High Court came after the
earlier Supreme Court decision (which had held to the contrary), and the Supreme Court decision was not even
brought to the notice of the Bombay High Court in that case.

Importance of domicile. —The importance of domicile in the law of succession Is due to the rule of private
international law that while rights over immoveable properties are governed by the law of the country where such
properties are situated (lex situs), succession to moveables (both testate and intestate) is governed by the law of the
country where the person had his domicile at the time of his death. This universal rule is adopted in s 5 of the Indian
Succession Act.

Every person must, at all times, possess a domicile. As the Supreme Court of India observed in Central Bank of
India v. Ramnarain (1955 S.C.J 4), a person may have no home, but he cannot be without a domicile. A person may
be a vagrant, as when he lives in a yatch, or a wanderer from one hotel to another, but nevertheless, the law will
arbitrarily ascribe to him a domicile in a particular territory.

KINDS OF DOMICILE
There are three kinds of domicile :
(a) Domicile of origin (or domicile by birth) : Ss. 6-8
(b) Domicile by choice Ss. 9-13
(c) Domicile by operation of law : Ss. 14-18

Now, although a person may have more than one domicile for some limited purposes, for the purposes of succession
to moveable property, he has only one domicile. S. 6, therefore, lays down that a person can have only one domicile
for the purpose of succession to his moveable property. This section is based on the English case, Somerville v.
Somerville, (5 Ves. 750).

(a) DOMICILE OF ORIGIN (Ss. 6-8)

Domicile of origin is a legal tie which binds a person at the moment of his birth to a given system of law It is a
settled principle that no man can be without a domicile, and the law attributes a domicile to every child as soon as he
is born. The domicile which a person acquires at the time of his birth is known as his domicile of origin or domicile
by birth.

The domicile of origin of a child depends on whether such child is born legitimate or illegitimate or posthumous,
and is as follows :

Legitimate Child (S. 7)

The domicile of origin of a legitimate child is in the country in which his father was domiciled at the time of his
birth.

Illustration : At the time of the birth of A, his father was domiciled in England. A’s domicile of origin is in England,
whatever may be the country in which he was born.

Illegitimate Child (S. 8)

The domicile of origin of an illegitimate child is in the country in which his mother was domiciled at the time of his
birth
Thus, a mother whose domicile is in England, gives birth to an illegitimate child in India The domicile of origin
of the child is English

Posthumous Child (S. 7)

The domicile of origin of a posthumous child is in the country in which his father was domiciled at the time of the
father’s death.
It may be noted, that under English Law, the rule is different There, a posthumous child gets the domicile of the
mother at the time of the child’s birth

As seen above, a person can have only one domicile for the purpose of succession to his moveable property. (s. 6)

It is also to be remembered that once the domicile of origin is ascertained in law, it adheres to the person until such
person acquires another domicile either by choice or by operation of law

The four essential characteristics of domicile are

(i) No person can be without a domicile
(ii) No person can simultaneously have more than one operative domicile.
(iii) Domicile denotes a person’s connection with a territorial system of law.
(iv) The law presumes the continuation (rather than a change) of an existing domicile.

(b) DOMICILE OF CHOICE (Ss. 9-13) Domicile of choice is the domicile which a person of full age and sound
mind acquires by a voluntary choice A person acquires a domicile of choice when he resides in a country, with the
intention of residing there permanently or indefinitely.

Thus, two factors are necessary for acquiring a new domicile —

(i) actual residence ((factum), and

(ii) an intention to stay there permanently or indefinitely (animus manendi).

ACQUISITION OF DOMICILE OF CHOICE

A new domicile can be acquired in the following two ways :
1. By fixed habitation (S. 10)

A man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of
origin. However, a man is not to be deemed to have taken up his fixed habitation in India, merely by reason of his
residing there (i) in the civil, military, naval or air force service of Government, or (ii) in the exercise of any
profession or calling.

It is to be remembered that the law always presumes against a change of domicile, and it is on the person who relies
on a change of domicile to prove that he has an intention of (a) abandoning his existing domicile, and (b) adopting
the new domicile of choice. In such cases, in the absence of any express intention, the length of residence is a factor
which a Court will consider for inferring an intention to make a fixed habitation in a particular place. However, if
residence is coupled with an intention of returning to one’s homeland, it will not be a ground for inferring change
of domicile, howsoever long the residence may be Likewise, residence for a short duration, coupled with the
necessary intention, will be sufficient to confer a new domicile. Thus, length of residence, by itself, is not
conclusive.

Illustrations

Illustrations of retention of old Domicile (S. 10)

(a) A. whose domicile of origin is in France, comes to reside in India, under an engagement with the Central
Government for a certain number of years It is his intention to return to France at the end of that period. He does not
acquire a domicile in India.
(b) A, whose domicile is in England goes to reside in India for the purpose of winding up the affairs of a partnership
which has been dissolved, and with the intention of returning to England as soon as that purpose is accomplished.
He does not by such residence, acquire a domicile in India, however, long the residence may last.

(c) A, whose domicile is in East Pakistan at Dacca, is compelled by political events to take refuge in Calcutta, and
resides in Calcutta for many years, in the hope of such political changes as may enable him to return with safety to
Dacca. He does not, by such residence, acquire a domicile in India.

Illustrations of acquisition of new Domicile (S. 10)

(i) A. whose domicile of origin is in England, proceeds to India, where he settles as a barrister or a merchant,
intending to reside there during the remainder of his life. His domicile is now in India.

(ii) A, having gone to reside in India, in the circumstances mentioned in illustration (b) (opposite), afterwards alters
his intention and takes up his fixed habitation in India. A has acquired a domicile in India.

(iii) A, having come to Calcutta in the circumstances stated in Illustration (c) (opposite), continues to reside there,
alter such political changes have occurred as would enable him to return with safety to Dacca, and he intends that
his residence in Calcutta shall be permanent. A has acquired a domicile in India.

(iv) A, whose domicile is in England, goes to Austria and enters the Austrian service, intending to remain in that
service. A has acquired a domicile in Austria.

Problems

1. A, born of British parents in England in 1854, came to India in 1880 to serve as a missionary and except for visits
to England on leave for six months in 1888, 1894, 1901, 1907, 1917, 1914 and 1920, he lived in Calcutta
continuously for 52 years until his death in 1933. A died intestate leaving moveables in India and England. and
immoveable property in England. By which law mull the succession to the different properties left by A be regulated
9

Ans.- A person acquires a domicile of choice when he resides ki a country. other than his domicile of origin with the
intention of residing there permanently or indefinitely In this case, it appears that A did not have a definite intention
to return to England, and that he came to India to stay indefinitely. Hence, he can be said to have acquired Indian
domicile. Succession to his moveable property in England and India will, therefore, be governed by Indian law, and
to his immoveable property in England by English law

2. E, an Englishman, having his domicile of origin in England, came to India for the purpose of winding up his
business and with the intention of returning to England as soon as that purpose is accomplished. His residence,
however, lasts ten years or more Does F acquire a domicile in India by his long residence 7

Ans.- A person acquires a new domicile when he resides in a country, other than his domicile of origin, with the
intention of residing there permanently or indefinitely. Here, the Englishman intends to return to England as soon as
his purpose is accomplished The fact that he stays in India for ten years or mow makes no difference, because
howsoever long his residence in India may lie he has an intention of returning to England. He, therefore, does not
acquire a domicile in India.

3. X, having his domicile in India. dies in France in an accident, leaving behind his car, a gold watch and expensive
clothes in France. He also has money in several banks in India. How would the succession to his various properties
be regulated ?

Ans.- Under S. 5 of the Act, the movable property of a deceased is regulated according to the law of the country in
which he was domiciled at the time of his death. Hence, in this case, succession to all the property of X (when is
movable in nature) will be regulated by Indian Law, the law of the country of his domicile.

2. By special mode (Ss. 9 & 11-13)

Any person may acquire a domicile in India by making and depositing in the appropriate office in India (appointed
in this behalf by the State Government), a declaration in writing, under his hand, of his desire to acquire such
domicile. However, the person should have been a resident in India for one year immediately preceding the time of
his making such declaration. (s. 11).

But a person who is appointed by the Government of one country to be ambassador, consul or other representative in
another country, does not acquire a domicile in the latter country, by reason only of residing there in pursuance of
his appointment; nor does any other person acquire such domicile by reason only of residing with that person as part
of his family, or as a servant (s. 12).

The domicile of origin prevails until a new domicile has been acquired (s. 9), and a new domicile continues until the
former domicile has been resumed or another new domicile has been acquired. (s. 13).

(c) DOMICILE BY OPERATION OF LAW (Ss. 14-18)

(DOMICILE OF DEPENDENCE)

Domicile by operation of law or domicile of dependence means the domicile of dependent persons, (e.g., minors),
whose domicile is dependent on, and changes with, the domicile of some other person (e.g., the minor’s parent) The
three categories of persons whose domicile is ascertained in this manner under the Indian Succession Act are minors,
married women and insane persons.

MINORS (Ss. 14 & 17)

A minor cannot acquire a new domicile, but his domicile follows the domicile of his parent from whom he
derived his domicile of origin (Le., his father or mother, as the case may be).

However, the minor’s domicile does not change with that of his parent in the following three cases, namely :

(a) if he is married; or
(b) if he holds any government office or employment; or
(c) it he has set himself up in any distinct business with the consent of his parent.

In England also, a minor’s domicile followed that of his parent until 1974. The only exception to the rule was the
case of a female minor who got married; she took her husband’s domicile in place of that of her parent. However,
the Domicile and Matrimonial Proceedings Act, 1973 (which came into force in England on 1st January, 1974) now
provides that a child becomes capable of having an independent domicile as soon as he attains the age of sixteen or
when he or she marries, whichever is earlier.

As regards adopted children, the rule is that such a child is to be treated as if he had been born to the adopter in
wedlock. He takes the adoptive parent’s domicile, and his domicile also changes with that of his adoptive parent.
MARRIED WOMEN (Sc 15 & 18)

By marriage, a woman in India acquires the domicile of her husband, and as long as she is married to him, it follows
the domicile of her husband, i.e., she automatically changes her domicile whenever her husband changes his. In
other words, a married woman is deemed incapable of having an independent domicile of her own.

However, there are two exceptions to the above rule, and in the following two cases, the wife’s domicile does not
follow that of her husband, viz. :

(i) when they are separated by the sentence of a competent Court; or

(ii) if the husband is undergoing a sentence of transportation (i.e. imprisonment).

The reason underlying a wife’s incapacity to choose an independent domicile seems to be the common law
principle of unity of the person of the husband and wife. By entering into the marriage, the husband and wife
become one in the eyes of law and the wife’s domicile keeps following that of her husband.

The English law on the point was exactly the same as above until 1st January, 1974. Today, under the Domicile and
Matrimonial Proceedings Act, 1973 (referred to above), a wife enjoys full freedom in choosing an independent
domicile, and thus, ”the last barbarous relic of a wife’s servitude” has now been buried in England.

INSANE PERSONS (LUNATICS) (S. 18)

An insane person, like a minor, cannot acquire a new domicile, except by following the domicile of another person
under whose care he is. Thus, if the lunatic is a minor, his domicile will charge with that of his parent; if she is a
married woman, with that of her husband.

There is a difference of opinion amongst jurists in India whether the Indian Courts would follow the English
decision in Urguhart v Butterfield (1887 37 Ch. D. 357), which lays down that if a lunatic is a major and has a
guardian or a custodian, his domicile remains static and cannot be changed by such guardian or custodian taking a
new domicile.

SUMMARY OF RULES RELATING TO CHANGE OF DOMICILE (a) By act of parties

(i) By fixed habitation.- A man acquires a new domicile by taking up his fixed habitation in a country which is not
that of the domicile of origin, with the intention of residing there permanently or indefinitely. But a man is not
deemed to have taken up his fixed habitation in India, merely by reason of his residing there in the Civil, military,
naval, or air force service of Government or in the exercise of any profession or calling.
(ii) Any person ma, acquire a domicile in India by making and depositing in an office appointed by the State
Government, a declaration in writing of his desire to acquire such domicile, provided he has been a resident in India
for one year immediately prior to such declaration.

(b) Domicile by operation of law

(i) The domicile of a minor follows the domicile of the parents

from whom he derives his domicile of origin; but such domicile of a minor does Lot change if the minor is married,
or holds any office or erriployment in the service of the Government, or has set up, with the consent of his parent, in
any distinct business
(ii) By marriage, a woman acquires the domicile of her husband, and her domicile keeps on changing when the
husband changes his domicile However, in the following circumstances, the domicile of the wile does not follow the
domicile of the husband :
(a) if the husband and wife are separated by the sentence of a competent Court; or
(b) if the husband is undergoing a sentence of transportation (i.e. imprisonment).
(iii) A lunatic cannot acquire a new domicile, except by following the domicile of another person under whose care
he is.

It should be noted that save as above-mentioned, neither a minor nor an insane person can acquire a new domicile.

Problem.- India’s Ambassador to Russia marries a girl of Russian domicile. A child is born to them at Moscow.
What will ’be domicile of the child ?

Ans.- The domicile will be ’domicile of origin’, i.e., the domicile of the father at the time of birth of the child. By
being India’s Ambassador in Russia, the father retained his Indian domicile (as he had presumably no intention to
settle down in Russia). So, the child will have an Indian domicile. The place of birth of the child is not relevant
CHAPTER III

MARRIAGE (Ss. 15, 20-22 & 69)

1. Interest and powers not acquired nor lost by marriage (S. 20)

S. 20 of the Act provides that by marriage, a person does not acquire any interest in property of the person whom he
or she marries; nor does he or she become incapable of doing any act in respect of his or her own property, which he
or she could have done if unmarried.

S. 20 does not, however, apply to any marriage where one or both of the parties professed (at the time of marriage)
the Hindu, Mohammedan, Buddhist, Sikh or Jain religion

This section does not also apply to a person whose domicile is not in India, but who marries in India, a person
domiciled in India. Such a case will be covered by Section 21 (below)

2. Effect of marriage between person domiciled and one not domiciled in India (S. 21)

If a person who is not domiciled in India marries, in India, a person who is domiciled in India, neither party acquires
by such a marriage, any rights in respect of any property of the other party, which he or she would not thereby
acquire if both the parties were domiciled in India at the time of the marriage. However, this can be done by a
settlement made prior to the marriage, i.e., under an ante-nuptial settlement. (S. 21)

It is clear that two conditions must be satisfied before the section comes into play :

(i) either of the parties must have an Indian domicile. and

(ii) the marriage must take place in India

If these two conditions are satisfied, neither party will acquire. by the marriage, any right in the property of the
other party

(This section also does not apply to Hindus, Mohammedans, Buddhists, Sikhs and Jains.)

3. Settlement of minor’s property in contemplation of marriage (S. 22)

The property of a minor can be settled in contemplation of marriage, provided that such a settlement is made by the
minor-

(i) with the approbation of Me minor’s lathe,, or

(ii) with the approbation of the High Court, it the father is dead or absent from India.

4. Acquisition of domicile by a woman on marriage

By marriage, a woman acquires the domicile of her husband. (S. 15)

5. Revocation of a will by marriage

Under S. 69, every will is revoked by the marriage of the maker thereof, except when ma& in the exercise of a
power of appointment.
In a case where a man is invested with power to determine the disposition of property of which he is not the owner,
he is said to have power to appoint’ such property.

Normally. a will can be revoked at any time by its maker. However, a will is automatically revoked, by operation of
law, if the person making it marries after such will is made. The raison d’etre behind this principle seems to be that
marriage creates such a change in the testators condition, and brings in its wake such new duties and obligations,
that a legal inference is raised that the testator did not intend to adhere to a will made prior to his marriage.

It is not only the first marriage, but every subsequent marriage also, that revokes a will A will made subsequent to
the first marriage, but before the second marriage, is revoked by the second marriage.

There are, however five important exceptions to this rule contained in Section 69

(i) When two person, make mutual wills, the marriage of one of them does not revoke the will of the other. (The
concept of mutual wills is discussed in Chapter VI.)
(ii) As S. 69 does not apply to Hindus, Buddhists, Sikhs and Jains, a will made by a Hindu is not revoked by his
subsequent marriage. (Suba reddi v. Doraiswami)
(iii) Similarly, (under Mohammedan Law), a will made by a Muslim is not revoked by his marriage.
(iv) There is no revocation where the subsequent marriage is void, e.g. in the case of a marriage with the
deceased’s wife’s sister, in cases where such a marriage is not allowed. (Mette v. Mette)
(v) Where a will is made In the exercise of a power of appointment, the testator’s marriage does not revoke the
will.

6. Bequest to spouse of attesting witness

Under S. 67, a bequest to an attesting witness or his (or her) spouse is void. (This is discussed at length under the
topic, ”Void Bequests” in Chapter VI.)
CHAPTER IV

CONSANGUINITY (Ss. 23 - 28)

This Chapter does not apply to any Hindu, Muslim. Buddhist, Jain, Sikh or Parsi : S. 23.

When a person dies intestate (i.e., without having made a will), his heirs fall into two groups relatives by blood and
relatives by marriage. An intestate’s brother would fall in the first category, whilst his wife would belong to the
second Relatives by consanguinity are essentially those who are the blood relations of a person

The concepts of consanguinity, lineal consanguinity and collateral consanguinity are disccussed below.

Consanguinity (S. 24)

First of all, the term consanguinity (or kindred) is defined to mean the connection or relation of persons who are
descended from the same stock or a common ancestor. This definition is apparently borrowed from Blackstone’s
Commentaries and covers both collaterals and direct descendants.

The relationship covered by the term consanguinity is a relationship flowing from a lawful marriage, and thus,
illegitimate relationships are not covered.

Lineal consanguinity (S. 25)

Lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the
other, as between a man and his father, grandfather, great-grandfather, etc., upwards in a direct ascending line, or
between a man and his son, grandson, great-grandson, etc., downwards in a direct descending line. In other words,
lineal consanguinity exists between two persons connected in one straight line, ascending or descending down from
a person.

When computing lineal consanguinity, every generation constitutes one degree, either ascending or descending.
Thus, a persons father is related to him in the first degree, and so is his sun. In the same way, a grandfather and his
grandson are related in the second degree, a great-grandfather and his great-grandson in the third degree, and so on
It will also be seen that in such cases, the person from whom the counting starts is to be excluded, which is why a
man s son is related to him in the first degree. (See the Chart on the next page )

Collateral consanguinity

Collateral consanguinity is that which subsists between two persons who are descended from the same stock or
ancestor, but neither of whom has descended in a direct line from the other Thus, collateral consanguinity would
exist (a) between a person and his brother, as both are descended from the same ancestor, i.e., the person’s father: (b)
between a person and his first cousin (i.e., paternal uncle’s son) as both are descended from a common ancestor,
namely, the person’s grandfather

Rules for ascertaining degrees of relationship

Three simple rules are prescribed by the Act for ascertaining the degrees of relationship for the purpose of
succession.

Firstly, no distinction is to be made between those related to the deceased through his father and those related
through his mother In other words, relatives on the paternal and maternal sides are both to be treated equally Thus, a
paternal uncle and a maternal uncle are both deemed to be equally related to the deceased.

Secondly no distinction is to be made between half blood and full blood relations. This is unlike Hindu law, where
full blood relatives (i.e., those descended from a common ancestor by the same wife) are preferred over hall blood
relatives (i.e., those descended from a common ancestor, but by different wives). Thus, if A dies, leaving B. a brother
by full blood and C a brother by half blood, both B and C are his heirs, and will succeed equally.

Thirdly as under most other systems of law, a posthumous child is to be treated as a live child, provided he was in
the womb when the intestate died, and was subsequently born alive.

Rules for ascertaining the degree of relationship [Ss. 26(2), 28 and Sch. 1]

S. 26(2) lays down the rules for ascertaining the degree of relationship. It provides that, to ascertain the degree of
relationship, one must reckon upwards from the deceased to the common ancestor.

////////////////////////////////////////////////////////////////////
TABLE OF CONSANGUINITY (S. 28 & Sch. 1)

Great-grandfather’s father (4)

Great-grandfather (3)
Great-great-uncle (5)

Grandfather (2)

Father (1)

Uncle (3)

Person whose relatives are to be reckoned

Brother (2) Cousin german (4)

Son (1)

I Grandson (2)

Great-grandson (3)

Nephew (3) Son of cousin german (5)

1 1 Son of nephew or Grandson of cousin

brother’s grandson (4) german (6)

///////////////////////////////////////////////////////////////////////////
(Note : The number within brackets connotes the number of degrees.)

From the above chart, it will be seen that a person is related to his grandson in the second degree (one descending
degree to his son, and one more to the grandson)

Similarly, a person is related to his first cousin or ‘cousin german’ (which expressions primarily denote children of
uncles and aunts) in the fourth degree, as follows There is one degree of ascent to the father, one more to the
common ancestor, i.e., the grandfather there is then one degree of descent to his uncle, and one more to the first
cousin, making In all four degrees.

Likewise a grandson of the brother and a cousin german (i.e, first cousin) stand in equal degree, each being four
degrees removed from the person whose relatives are being reckoned
CHAPTER V

INTESTATE SUCCESSION (Ss. 29-46)

(NOTE : This Chapter does not apply to any Hindu, Mohammedan, Buddhist, Sikh or Jain.]

The provisions of this Chapter are discussed under the following three heads .

A Intestacy
B Rules in the case of intestates other than Parsis
C Special rules for Pars; intestates.

A. INTESTACY (S. 30)

A person is deemed to die intestate in respect of all property of which he has not made a testamentary
disposition which is capable of taking effect (S. 30)

Illustrations

(i) A has left no will. He has died intestate in respect of the whole of his property.
(ii) A has left a will whereby he has appointed B as his executor, but the will contains no other provisions. A has
died intestate in respect of the distribution of his property.
(iii) A has bequeathed his whole property for an illegal purpose. A has died intestate in respect of the distribution
of his property.
(iv) A has bequeathed Rs. 1,000 to B and Rs. 1,000 to the eldest son of C and has made no other bequest. He dies,
leaving a sum of Rs. 2,000 and no other property. C died before A without having ever had a son. A has died
intestate in respect of the distribution of Rs. 1,000. (This is a case of partial intestacy.)

From what is stated above, it will be seen that a person is deemed to have died intestate into two cases : Firstly,
when he has not made a will at all; and secondly, when he has made a will, but the same is not effective in a legal
sense, or if it does not cover the whole of his property.

Intestacy is of two kinds, total intestacy and partial intestacy. Thus, if X makes no will at all, it will be a case of
total intestacy But, if he makes a will only as regards his property in Mumbai, and makes no will with respect to
his property in Pune, it will be a case of partial intestacy X will then be deemed to have died intestate in respect
of his property situated in Pune.

B. RULES IN THE CASE OF INTESTATES OTHER THAN PARSIS (Ss. 31 - 49)

Sections 31 to 49 lay down certain rules for distribution of property of intestates other than Parsis. As seen above,
this entire Chapter also does not apply to Hindus, Mohammedans, Buddhists. Sikhs and Jains. Hence, the following
rules will apply only to those who belong to other communities, as for instance, Indian Christians, Europeans, etc.

WHERE THE INTESTATE HAS LEFT :

1. Widow [W] only—She takes everything. [W=1]

The property of an intestate primarily devolves upon the wife or husband, or upon those who are kindred of the
deceased in the following order and according to the following rules”. (S 32)
It may be noted that (under S. 35) a husband surviving his wife has the same rights in respect of her property, it she
dies intestate, as a widow has in respect of the husband’s property, if he dies intestate. Thus, if the deceased intestate
is a female, in the rules that follow, the word ”widowers is to be substituted in place of the word ”widow”.
2. Widow [W] and lineal descendants [LD] - Widow takes 1/3 and lineal descendants get 2/3. [W =1/3, LD = 2/3]

3. Widow [W] and kindred [K] but no lineal descendants - Each takes 1/2. [W=1/2, K=1/2 ]

4. Widow, but no lineal descendants.

(a) If the net value of property is Rs. 5,000 or less— Widow takes the whole property.

(b) If the net value of the property exceeds Rs. 5,000— Widow is entitled to Rs. 5,000 thereof, and has a charge
upon the whole of such property for Rs. 5,000 with interest thereon from tne date of the death of the intestate at 4%
per annum until payment) The rest of the property is to be divided among the heirs referred to above (Including the
widow) in the ratios referred to above.

5. No widow — Property will go to the intestate’s lineal descendents; in default, to his kindred; and in default of
both, to the Government.

RULES OF DISTRIBUTION (Ss. 36-48)

1. Rules of distribution among lineal descendants (Ss. 3640)

If the intestate has left a widow, her share (a e., one-third, under Rule 2 above) is first to be deducted. The balance
will devolve as per the following rules :

(a) If the intestate has left a child or children only (and no remote descendant through a deceased child), – the child
takes the whole of it, or if more than one, the children divide it equally among themselves. (S. 37)

Thus, if A dies, leaving three children, B, C and D and no children of any predeceased children. After the widow’s
share (one-third) is given to the widow, the balance two-thirds would be equally divided between B C and D. Of
course, in case A’S wife had died before him. B, C and D would divide the entire estate in equal proportions

(b) If the intestate does not leave a child behind him, but leaves behind a grandchild (or grandchildren), – the
grandchild takes the whole of the (balance) property, and if more than one, the grandchildren get equal shares in the
property. Here again, it is presumed that there is no descendent of a deceased grandchild. (S. 38)

Illus — (i) A has three children, and no more, John, Mary and Henry They all die before A John leaving two
children, Mary three and Henry four Afterwards. A dies intestate, leaving these nine grandchildren and no
descendant of any deceased grandchild Each of his grandchildren will have one-ninth.

(a) But if Henry has died, (in the above example), leaving no child, then the whole is equally divided between the
intestate’s five grandchildren, the children of John and Mary

(c) The same rule applies if deceased left only great-grandchildren or remoter lineal descendants, grandchild or
grand-children or great-grandchildren The division among them has to be per capita. (The concept of per capita is
explained below )
(d) If, however, the lineal descendants are not in the same degree, the division has to be per stirpes (The concept of
per stirpes is also explained below.)

(i) A had three children, John, Mary and Henry. John died leaving four children, and Mary died, leaving one, and
Henry alone survived the father. On the death of A intestate, one-third is allotted to Henry, one-third to John’s four
children, and the remaining one-third to Mary’s one child.

(a) A left no child, but left eight grandchildren, and two children of a deceased grandchild. The property is divided
into nine parts, one of which is allotted to each grandchild, and the remaining one-ninth is equally divided between
the two great-grandchildren.

(iii) A has three children, John, Mary and Henry; John dies leaving four children; and one of John’s children dies,
leaving two children Mary dies leaving one child. A afterwards dies intestate. One-third of his property is allotted to
Henry, one-third to Mary’s child, and one-third is divided into four parts, one of which is allotted to each of John’s
three surviving children and the remaining part is equally divided between John’s two grandchildren.

(iv) A has two children, and no more, John and Mary. John dies before his father, leaving his wife pregnant. Then
A dies, leaving Mary surviving him, and in due time, a child of John is born A’s property is to be equally divided
between Mary and the posthumous child.

PER CAPITA AND PER STIRPES EXPLAINED.— A distribution of property is said to be per capita ( i.e.,
individually ), if it is divided amongst those all entitled to it in equal shares The distribution is said to be per stirpes (
i.e., by stock or branches ) if it is divided amongst all those entitled to it according to the number of stocks of
descent, that is, if it is divided equally amongst the surviving children of an intestate individually, and the
descendants of deceased children collectively, so that the descendants of a deceased child take that child’s share
between them.

Thus, suppose X had only two sons, A and B, and at the time of his death, both were dead, A leaving behind him
only one son (C), and B leaving behind him two sons (D and E). If, the distribution of his property (amongst his
three grandsons) is to be per capita, XS property will be divided into three equal shares, and C will get one-third, D
one-third, and E one-third, of the property However, if the distribution is to be per stirpes, X’S property is first to Le
notionally divided into two parts (representing his two sons, A and B), and the children of A get A’s share, and the
children of B get B’s share Thus. C would get one-half, and D and E, one-fourth each of X’S property.

2. Rules of distribution among kindred (Ss. 41-48)

If the intestate has left a widow (or a widower), her (or his) share, (i.e., one-half, under Rule 3 above) is first to be
deducted The balance will then devolve as follows

(a) If the intestate’s father is living — he takes the other half (S 42) So, if the intestate leaves behind him only a
widow and his father, the shares will be : Widow = 1/2; Father = 1/2.

(b) If, however, the intestate’s father is dead,— the mother and brothers and sisters of the intestate succeed equally:
but the children of a deceased brother or sister represent the parent, and take the share which their parent would
have taken if alive (S 43)

Illus.— A dies intestate, survived by his mother and two brothers of full blood, John and Henry, and a sister Mary,
who is the daughter of his mother, but not of his father. The mother takes one-fourth, each brother takes one-fourth,
and Mary, the sister of half blood, takes one-fourth
(c) So also, if the father of the intestate and his brothers and sisters are dead, but have left lineal descendants, such
descendants and the mother take the property in equal shares (Ss 44 & 45)

illus.— A. the intestate, leaves his mother, his brothers John and Henry, and also one child of a deceased sister, Mary
and two children of George, a deceased brother of half blood who was the son of his father, but not of his mother.
The mother takes one-fifth, John and Henry each takes one-fifth, the child of Mary takes one-fifth, and the two
children of George divide the remaining one-fifth equally between them. (S. 44)

A, the intestate, leaves no brother or sister, but leaves his mother and one child of a deceased sister, Mary, and two
children of a deceased brother. George 1he mother takes one-third, the child of Mary lakes one-third, and the
children of George divide the remaining one-third equally between them. (S. 45)

(d) If only the intestate’s mother is alive (but there is no father, brother, sister or their descendants ), – the mother
takes the whole, (S. 46)

(e) II there is no lather, no mother, no lineal descendants,— the brothers and sisters of the intestate divide equally.
(The children of a deceased brother or sister can represent him or her.) (S. 47)

(f) II the intestate has left none of the above relatives,— the property goes in equal shares to those relatives who are
in the nearest degree of kindred to the intestate. (S. 48)

Illus — (i)A. the intestate, has left a grandfather and a grandmother, and no other relative standing in the same or a
nearer degree of kindred to him They, being in the second degree, will be entitled to the property in equal shares,
exclusive of any uncle or aunt of the intestate, uncles and aunts being only in the third degree.

(ii) A, the intestate has left a great-grandfather, or a great-grandmother, and uncles and aunts, and no other relative
standing in the same or a nearer degree of kindred to him. All of these being in the third degree, will take equal
shares.

(iii) A, the intestate, left a great-grandfather, an uncle and a nephew, but no relative standing in a nearer degree of
kindred to him. All of these being in the third degree, will take equal shares.

(iv) Ten children of one brother or sister of the intestate, and one child of another brother or sister of the intestate,
constitute the class of relatives of the nearest degree of kindred to him. They will each take one-eleventh of the
property.

Summary of the rules contained in Secs. 42 to 48

Sections 42 to 48 lay down the rules of distribution of the property of an intestate where the intestate has died
without leaving children or remoter lineal descendants, and the rules of distribution are as under, in order of
priority :

(1) Widow ½ and

Father 1/2 (Sec. 42)
(2) Widow ½ and
Mother, Brothers and
Sisters 1/2 equally (Sec. 43)
(3) Widow ½ and
Mother, Brothers, Sisters
and children of any deceased.
Brother or Sister : 1/2 equally (per stirpes) (Sec. 44)
(4) Widow 1/2 and
Mother and Children of Brothers and Sisters : 1/2 equally (per stirpes) (Sec 45)
(5) Widow 1/2 and
Mother 1/2 (Sec. 46)
(6) Widow 1/2 and
Brothers and Sisters and Children of predeceased Brothers and Sisters : 1/2 equally (per stirpes) (Sec 47)
(7) Widow 1/2 and
Remote Kindred 1/2 (in the nearest degree) (Sec. 48)

Note
(1) In the above table, if the intestate is a female, the word ”widow” should be read as ”widower.
(2) If the widow or widower of the intestate is not alive, the entire estate of the deceased would go to the other
relatives as per the above table.

ABOLITION OF RULE AS TO ADVANCEMENT (S. 49)

Under S. 49, if a share in the property of an intestate is claimed by a child, no money or other property which the
intestate may during his life, have paid, given or settled for the advancement of the child is to be taken into account
in estimating such share In other words, if during his lifetime, the intestate has already paid certain amounts to his
child, such amounts are not to be adjusted against. or substracted from the amounts due to such a child under the
various rules seen above.

Advancement” is a term of English law, which signifies a provision made by a father in his lifetime for the benefit
of his child. It is made by a document inter vivos, usually by a deed of settlement Mere casual payments or payments
to relieve a child from temporary difficulty do not amount to an advancement; but, sums given to start a child in life
or to make a provision for him constitute advancement

Now, according to the English law, in case of intestacy if a child has received payments by way of advances, he must
bring that amount into the hotchpot before he can get his distributive share in the estate. To illustrate, suppose an
intestate has only two sons. and dies after making an advancement to one of his sons X of £ 5,000, leaving behind
him £ 15,000. English law would require that X should bring £ 5,000 into the estate (making it £ 20,000), before
claiming one-half of the property. In India, under S. 49 of the Act, a child is not required to do so; he can retain the
benefits, as well as claim a share in the estate.

In other words, s. 49 enacts that property which the intestate may. during his life, have given or settled for the
advancement of the child, who claims to have a share in the distribution of the property, is not to be taken into
account in estimating the share. The section thus abolishes the English rule, by which a child who might have been
advanced by the intestate must bring the amount into hotchpot, so as to make the estate divisible among all the heirs.
According to the English law, in case of total intestacy, anything which a child receives from the father in his
lifetime should be deducted from his share of his father’s estate

Though S 49 does not apply to Parsis, it was held in Dhunjibhai v Navazbai. (1878) 2 Born 75, that the English
doctrine of advancement does not apply to the Parsis also.

’PORTION’ AND ’ADVANCEMENT’.- Closely allied to the theory of ’advancement’ is the theory of portion’. A
portion is a part of a person s estate which is given or left to a child or person to whom another stands in loco
parentis, on marriage, or for the purpose of establishing him in business.

The distinction between portion and advancement is as follows :

(i) portion’ is an advancement for a particular purpose whereas ’advancement’ is for the general benefit of the child.
(ii) An ’advancement’ is made by a father only, whereas, a portion can be made by any person standing in loco
parentis to a child. (See also s. 178, below, which provides that where a parent is under an obligation by contract to
provide a portion for a child, and fails to do so, but bequeaths a legacy to the child, the child is entitled to the legacy
as well as the portion)

C. SPECIAL RULES FOR PARSI INTESTATES (Ss. 50-56)

General principles relating to intestate succession among Parsis (S. 50)

The word ”Parsi” has not been defined in the Act. Under the Parsi Marriage and Divorce Act, the term refers to a
Parsi Zoroastrian. So, the children of a Parsi father would be Parsis, even if their mother is a non–Parsi, provided
they are admitted into the Parsi religion and profess the Zoroastrian religion. However, children of a Parsi mother
would not be Parsis, it their father is a non-Parsi. (Sir Dinshaw Maneckji v. Sir Jamshedji, 33 Bom. 509)

For the purpose of intestate succession among Parsis, —

(a) There is no distinction between those who are actually born in the lifetime of the deceased and those who at the
date of his death were only conceived in the womb, but who have subsequently been born alive. In other words, a
posthumous child is to be deemed to be in existence, provided he was conceived when succession opened and is
then born alive.

(b) A lineal descendant of an intestate who has had died in the lifetime of the intestate, without leaving a widow
(or widower) or any lineal descendants (like children or grandchildren) is not to be taken into account when
determining succession to the property of the intestate.

(c) Where a widow (or widower) of any relative of an intestate has married again in the lifetime of the intestate,
she (or he, as the case may be) is not entitled to receive any property of the intestate, and is deemed not to be
existing at the time of the intestate’s death. In other words, a relative’s widow is disqualified from inheritance if she
has remarried before the death of the intestate. This disqualification would also apply to a relative’s widower who re-
marries.

SHARES IN THE CASE OF PARSI INTESTATES (Ss. 51-58, as emended by the 1991 Amendment)

Before the 1991 Amendment, separate rules were laid down for Parsi males and females. However, after the said
Amendment, S. 51 lays down three simple rules, which apply to all Parsis dying intestate.

Rule 1 : It a Parsi dies intestate, leaving a widow (or widower) and children, the widow (or widower) and each child
gets an equal share.

For instance, if A dies intestate, leaving his widow B, and his son C, each of them will be entitled to 1/2 of A’s
property. Likewise, if B dies, leaving her widower A. a son C, and a daughter D. each of them would get 1/3 of B’s
property.

Rule 2 : If such Parsi has no widow (or widower), but only children, each child gets an equal share
Thus, A dies intestate, leaving behind him, only three children, X. Y’ and Z. Each child will get 1/3 of A’s property.

Rule 3 : If a Parsi dies intestate, leaving one or both parents (in addition to children or widow or widower) and
children, each parent gets a share equal to half the share of each child.

So, if A dies intestate, leaving a widow B, a son C and his father, B and C will get equal shares (i.e. one share each),
and F will get a half-share. In other words, B wail get 215 of A’s property. C will get 2/5, and F will get 1/5 of such
property.

Problem. — A, a Parsi dies intestate, leaving behind him, his wife, two sons, one daughter and both his parents.
Determine the shares of each of the heirs on A’s intestacy. Ans. — Applying the above rules, the shares of each of
the above relatives will be as under :

Wife : 2/10 (i e. 1/5)

Son No. 1 : 2/10 (i.e. 1/5)
Son No. 2 : 2/10 (i.e. 1/5)
Daughter : 2/10 (i.e. 1/5)
Father : 1/10
Mother : 1/10

Ss. 53 to 56 then lay down further rules in cases of Parsis dying intestate, as follows

Where a Parsi dies intestate, leaving—

Name of Heirs
1 Any lineal descendant arid the intestate’s child has died in his life time
Share taken by such heir (Ss. 53-56)
1 (a) If such deceased child was a son—
—his (i.e., the deceased child’s) widow and children take equally as if he had died immediately after the intestate’s
death.
(b) It such deceased child was a daughter —
—her (i.e., deceased child’s), share is to be divided equally among her children.

Name of Heirs
2 No lineal descendant (like a child or grandchild)
Share taken by such heir (Ss. 53-56)
2. (a) If the intestate leaves a widow or widower ,but no widow (or widower) of a lineal descendant—
—the widow or widower takes half the property.
(b) If the intestate leaves a widow or widower and also a widow (or widower) of a lineal descendant—
—his widow or her widower takes one-third and the widow (or widower) of any lineal descendant gets the other
one-third.
(c) If the intestate leaves no widow or widower, but one widow (or widower) of a lineal descendant,—
— she (or he) gets one-third of the property.
(d) If the intestate leaves no widow or widower, but more than one widow (or widower) of a lineal descendant,–
— two-thirds of the property is to be equally divided among all such widows (or widowers).
(e) After ascertaining the share as per clauses (a), (b), (c) and (d) above, the residue is to be distributed amongst the
relatives of the intestate in the order given in Part I of Schedule II to the Act (La, father, mother, brothers, sister,
etc.)
(f) If, however, no relatives are entitled under clause (e) above, the residue is also to be distributed under clauses (a)
to (d) in the same proportion

Name of Heirs
3. Neither lineal descendants nor widow or widower nor a widow (or widower) of any lineal descendant
Share taken by such heir (Ss. 53-56)
a. His or her next-of-kin (in the order set out in Part II of Schedule II to the Act) take the whole property.

Name of Heirs
4. No relative at all entitled to succeed under the above provisions
Share taken by such heir (Ss. 53-56)
a. The property is to be equally divided among those of the relatives of the intestate who are in the nearest degree of
kindred to him.
CHAPTER VI

TESTAMENTARY SUCCESSION (Ss. 57 - 191)

This Chapter deals with testamentary succession, i.e., rules which apply in cases where a testator has left his or her
will Chapter VI contains some of the most important provisions of the Act, and is discussed under the following
heads :

A Introductory (Ss 57 & 58)

B Wills arid Codicils (Ss 57-62; 66-89)
C Execution of Wills (Ss. 63-86)
D. Revocation of Wills (Ss 62, 69, 70 & 72)
E Obliterations and alterations in a Will (S. 71)
F Revival of unprivileged Wills (S. 73)
G Construction of Wills (Ss. 74-101)
H Void Wills (Ss 59. 61, 66 & 89)
I. Residuary legatee (Ss. 102 & 103)
J. Lapsing of legacies (Ss. 105-111)
K. Void bequests (Ss. 67, 89, 112-118, 126 & 127)
L. Vesting of legacies (Ss. 104, 119-11 & 174)
M. Onerous bequests (Ss. 122 & 123)
N Contingent bequests (Ss 124 & 125)
O. Conditional bequests (Ss. 126-137)
P Bequests with directions as to application or enjoyment (Sc. 138 — 140)
Q. Bequests to executor (Ss. 141)
R. Kinds of legacies (Ss. 142- 151)
S. Ademption of legacies (Ss. 152-166 & 179)
T. Bequests subject to liabilities (Ss. 167-170)
U. Bequests of things described in general terms (S. 171)
V Bequest of interest or produce of a fund (S. 172)
W. Bequest of annuities (Sc. 173-176)
X. Legacies to creditors and portioners (Se. 177-179)
Y. Election (Ss. 180-190)
Z. Gifts in contemplation of death (Donatio mortis causa) (Ss. 191)

A. INTRODUCTORY (Ss. 57 & 58)

S. 57 of the Act provides that the provisions of this Chapter which are set out in Schedule III to the Act, apply,
subject to restrictions and modifications in that Schedule—

(a) to all Wills and Codicils made by a Hindu, Buddhist, Sikh or Jain, within the erstwhile province of Bengal or
within the cities of Madras or Bombay;

(b) to all such Wills and Codicils made outside the above territories, provided that such Wills or Codicils are in
respect of immoveable properties situated within the territories mentioned in clause (a) above;

(c) to all Wills and Codicils made by any Hindu, Buddhist. Sikh or Jain after 1st January, 1927, provided that
marriage would nor revoke any such Will or Codicil.
S. 58 then provides as follows :

(i) Chapter VI does not apply to testamentary succession of Mohammedans.

(ii) Chapter VI applies to Hindus, Buddhists, Sikhs and Jams to the extent covered by S. 57 (above)
(iii) This Chapter does not, however, apply to wills made before 1st January, 1866.
(iv) Except as above, the Chapter contains the law of India applicable to all cases of testamentary succession

B. WILLS AND CODICILS (Ss. 57-62; 66-89)

A will is defined (by S. 2(h) of the Act) as the legal declaration of the intention of a testator with respect to his
property, which (intention) he desires to be carried into effect after his death

In Halsbury’s Laws of England, a will is defined as ”the declaration in a prescribed manner of the intention of the
person making it, with regard to matters which he wishes to take effect upon um after his death”.

Jarman defines a will as ”an instrument by which a person makes a disposition of his property to take effect after
his decease, and which is in its own nature revocable during his life”

1. ESSENTIAL CHARACTERISTICS OF A WILL

The following are the four essential characteristics of a will

(a) Legal declaration.— The document purporting to be a will must be legal, i.e., in conformity with the provisions
as regards execution and attestation, as laid down in section 63 of the Act, and must be made by a person competent
to make it. A minor is legally incompetent to make a will, and a will by a minor is not a legal declaration.

It may also be noted that the mere use of the word ”will” cannot make it a will, if it does not amount to a
testamentary declaration disposing of the property

(b) The declaration should relate to the property of the testator which he wants to dispose of If the declaration
contains no reference to the disposal of the property, but merely appoints a manager to manage the property, or gives
merely an authority to his widow to adopt it is not a will

In one case, a document was executed by a Hindu of advanced age In this document, he partitioned his property
amongst his sons, and the document was called his ”Will”. Amongst others, his (so-called) ’Will” contained the
following clause :

if I at any time come back from pilgrimage and find mismanagement or the character of any one bad, then I shall
have the power to cancel this Will’ It was held that the effect of this clause was to make the document a family
arrangement, and not a will. (Ram Nath v Ram Nagina)

(c) Thirdly, the declaration as regards the disposal of the property of the testator must be intended to take effect after
his death. If the declaration is not to that effect, or if the declaration seeks to effectuate the intention of the writer
immediately i.e., during his life–time (inter twos), then it is a not a will.

(d) Revocability— The essence of every will is that it is revocable during the life-time of the testator.

A will always operates from the date of the testator’s death, and not from the date of its execution. In other words, a
will always speaks from the death of the testator. During the testator’s life, his will is always ambulatory i e, of an
unsettled and fluctuating character, inasmuch as it can be revoked by the testator at any time. This is made
abundantly clear by s 62, which provides that a will is liable to be revoked or altered by its maker at any time when
he is competent to dispose of his property by making a will. It is to be remembered that the mere fact that the
testator has called his will ’irrevocable’ or agrees not to revoke the will, does not make such a will irrevocable. An
exception is, however, made in the case of mutual wills (discussed later).

As seen above, the mere fact that the writer of the instrument calls it a ”will”, does not make it a testamentary
document, if it fails to fulfil any one of the above four conditions.

The following are the two tests for determining whether a document is a will or not :

(1) That it was the intention of the writer to convey the benefits by the instrument which would be conveyed by it, if
considered as a will, Le., the writer had the necessary intention or animus testandi. A will, though formally executed
as such, will not be valid, if there is no animus testandi, e.g., if it was written in jest.

(2) That death was the event that was to give effect to it. If the writing confers, or is intented to confer, benefits inter
vivos (i.e., during the life-time of the person), without any reference to the death of the party conferring it, such a
document cannot be called a will.

Form of a will.— There is no prescribed form of a will. To be effective, it need only be properly signed and attested
as required by the Indian Succession Act. If the necessary animus testandi is present, even agreements, letters, bills
of exchange and powers of attorney may operate and take effect as wills, provided that under such animus testandi,
the dispositions are not to take effect until after the person’s death.

Language and writing of a will.— No technical words need be used in a will, and a will can be in any language.
However the words used should be clear and unambiguous, so that the mind of the testator is reflected in such words
with sufficient clarity

It is not really important whether a will is typed or hand-written, and if the latter, whether it is written in ink or in
pencil. (although, of course, a pencil is not the best writing instrument for a will ) However, the English Courts have
held that if a will is written in ink and the testator has made pencil alterations therein, it will be presumed that the
alterations are deliberative.

Stamp duty— No stamp duty is payable on wilts and codicils. Hence, wills and codicils need not be written on
stamped paper Specimen. — For a specimen will see the Appendix to this book.

2. KINDS OF WILLS

The Act mentions only two kinds of wills— a privileged will and an unprivileged will. These are dealt with in Ss. 65
and 66. to be discussed later.

However, wills can also be classified under other categories, and it can be said that there are nine kinds of wills, as
under

(i) Privileged Will. — (This is discussed later.)

(ii) Unprivileged Will.— (This is also discussed later.)
(iii) Nuncupative or oral will— An oral (or nuncupative) will is one which has been declared by the person making
it in the presence of witnesses. The Act does not provide for the making of such wills, except in the case of soldiers,
sailors and airmen (privileged wills), in which case, the number of such witnesses has been specified and the other
conditions (discussed later) have been laid down

The burden of proof of establishing an oral will is naturally quite heavy, and such a person would have to prove the
exact words of the testator.

(iv) Holograph This is a will written in the testator’s own hand. Such a will is included in the definition of an
unprivileged will under the Act. The fact that the testator has written the will in his own hand–writing would also go
to show that he was fully aware and conscious of making such a will.

(v) Inofficious will.— An inofficious will is a will which is not in keeping with the testator’s natural affection and
moral duty, as where a testator bequeaths all his property to a stranger, to the complete exclusion of his wife (or her
husband), his children and other relatives. Such a will is a perfectly legal will, provided all the other requirements of
a will are fulfilled In other words, a will is not invalid only on the ground that the testator has showered his bounty
on strangers. to the total exclusion of members of his own family.

(vi) Mutual (or reciprocal) wills.— Two persons are said to make mutual wills when they confer reciprocal benefits
upon each other under their will In other words, a mutual will is one of two wills made by two persons, giving each
other similar rights in each other’s property, as when A bequeaths all this property to B, and B makes a will giving
all his property to A.

Normally, a will is revoked by the marriage of its maker, but in case of mutual wills, the marriage of one of them
does not revoke the will of the other.

The peculiarity of mutual wills is that they become irrevocable after the death of one of them, if the following
conditions are satisfied :

(a) the survivor has received benefits from the deceased under the mutual wills, and
(b) there was an agreement between the two testators that they shall not revoke their respective wills.

Mutual wills, sometimes also called reciprocal wills are different from joint wills (-see below-). In describing a
will, the adjective ”mutual” (or “reciprocal”) is used to emphasise and denote the contractual element which
distinguishes such a will from a joint will. (Kuppuswami v. Perumal, A.I.R. 1964 Mad. 291)

(vii) Joint will.– In Halbury’s Laws of England, a joint will is defined as a will made by two (or more) testators,
contained in a single document, duly executed by each testator and disposing of either their separate properties or
their joint property. The most common example of such a will is one made by a husband and his wife, disposing of
their properly under one joint will.

In law, a will made by two persons is not considered to be a single will. In effect, it constitutes two wills, and on the
death of each testator, it operates as a will of such a testator, disposing of his own separate property. Therefore, on
the death of one testator, such a will can be admitted to probate as the will of such testator, and on the death of the
survivor, it will be admitted to probate as the disposition of the property of the survivor. However, a joint will
relating to joint property only can be proved only on the death of the survivor.

When two persons make a joint will, and one of them dies, the survivor can revoke his will, unless he has taken
some benefit under the will of the deceased co-testator. (Minakshi v. Vishwanatha, 44 Mad. 406)

In Theobald on Wills, a joint will is described as follows

”Persons may make joint wills which are however revocable at any time by either of them or by the survivor. A joint
will may be made to take effect after the death of both the testators; such a will remains revocable during the joint
lives by either, with notice to the other, but becomes irrevocable after the death of one of them, if the survivor takes
advantage of the provisions made by the other.”

(viii) Contingent or conditional will.- A will may be made contingent upon the happening of an event, so that if the
event does not happen, the will has no effect. Thus, when a will contained the following clause, ”Should anything
happen to me during my passage to Wales or during my stay....”, it was held to be a conditional will Such a will
takes effect only if the contingency happens; if the contingency does not happen, the will is not entitled to probate.
Similarly, a will may be made conditional on the assent of a third person, and such a will would be entitled to a
probate only if such assent has been given

(ix) Duplicate will.- A duplicate will is one of which two or more copies are made. If such a copy is signed by the
testator, it can operate as the original will. Where a will is executed in duplicate, one of which the testator retains,
while the other is deposited in the custody of another, the destruction by the testator of the will which was in the
testator’s possession, revokes the will

3. PERSONS CAPABLE OF MAKING A WILL (S. 59)

S. 59 deals with testamenti factio, and provides that every person (a) who is of sound mind and (b) who is not a
minor, can dispose of his property by will.

A married woman can dispose of by will any property which she could alienate by her own act during her life–time

Persons who are deaf or dumb or blind can make a will, if they are able to know what they do by it.

A person who is ordinarily insane may make a will during an interval during which he is of sound mind (lucid
interval)

However, no person can make a will while lie is in such a state of mind that he does not know what he is doing. In
other words, in order to make a will, a person must have a sound and disposing capacity

Illus.- (i) A can perceive what is going on in his immediate neighbourhood, and can answer familiar questions, but
has not the competent understanding as to the nature of his property, or the persons who are of kindred to him, or in
whose favour it would be proper that he should make his will. A cannot make a valid will.

(ii) A executes an instrument purporting to be his will, but he does not understand the nature of the instrument, nor
the effect of its provisions. The instrument is not a valid will.

(iii) A, being very feeble and debilitated, is yet capable of exercising a judgment as to the proper mode of disposing
of his property. A makes a will This is a valid will.

In an English case. Harwood v. Baker, it was observed that in order to constitute a sound and disposing mind, ”a
testator must not only be able to understand that he is by will, giving the whole of his property to an object of his
regard, but he must also have capacity to comprehend the extent of his property and the nature of the claims of
others whom by his will he is excluding.

The Calcutta High Court has observed that mere ability to sign his name or carry on ordinary conversation and
answer familiar and easy questions does not necessarily constitute a sound and disposing mind.
It is quite well—settled that a will made by a person who is drunk, or so much under the influence of an intoxicant,
that he is deprived of his mental faculty or reason and understanding, is void and of no effect. However, a will
cannot be challenged only on the ground that its maker was a habitual drunkard, unless it is proved that at the time
of executing the will, he was under the influence of liquor.

Likewise, mere old age does not disqualify a person from making a will. In such cases, the only point to be
considered is whether the person had sufficient mental faculty to understand the nature of his testamentary act
Merely because old age has made his memory rather feeble is no ground for nullifying his will, if such a person
otherwise had sufficient understanding to realise what he was doing. However, in cases where wills are made by old,
sick and dying persons, it is not enough to show that such a person was able to answer usual and familiar questions;
it is also necessary to prove that he was fully able to comprehend the nature of his testamentary act and that he
understood all aspects of the will when he signed it.

It has also been held that a will is not invalid only because the testator made it just before he committed suicide,
provided that he was otherwise mentally fit when he executed the will. (Mazhar Husen v. Bodha Bibl, I.L.R. 27 All.
91)

The Calcutta High Court has observed that the fact that the testator was given an injection and a blood transfusion
before the execution of his will does not, by itself, invalidate the will, if the testator was otherwise capable of
making a valid will.(Garib Shaw V. Patia Desai, A.I.R. R 1933 Cal. 290)

The Privy Council has held that it is sufficient if the testator was of sound mind when he gave instructions to his
solicitor to prepare his a such a will would be valid, even though the testator was not capable of understanding
its provisions at the time of signing the will. (Parera v. Parera, (1901) A.G. 354)

Formerly under the English law, alien enemies, traitors, and felons could not make wills. Now, such restrictions do
not exist, and such persons may, by will, dispose of their property: Under Indian law, aliens, traitors and prisoners
have full testamentary capacity to make will and codicils.

A Mohammedan who is of sound mind and not a minor, may make a will. But it must be remembered that under the
principles of Mohammedan Law, he cannot, by will, dispose of more than one-third of his estate, unless the heirs
consent to such bequest after the testator’s death. Similarly, he cannot make a bequest to an heir, unless the other
heirs consent to it.

In a case decided by the Supreme Court, a will was made by a Hindu widow who was seventy years old. By this
will, she bequeathed all her property in favour of her brother’s grandson in whom she reposed full confidence. The
factum and the validity of this will were challenged by the sons of her husband’s brother, who alleged that
suspicious circumstances surrounded the will, and it was, therefore, not a will. It was proved before the Court that
the testatrix (i.e. the lady making the will, — the old Hindu widow, in the present case) was of sound disposing
mind, although physically incapable ol signing her name at the time of the execution of the will. Taking all the facts
into consideration, the Court held the will to be valid, as the suspicious circumstances were not proved. (Brij Mohan
Lal Arora Girdhari Lal Monucha, A.I.R. 1978 S.C. 1202)

4. TESTAMENTARY GUARDIAN (S. 60)

To the general rule enunciated in s. 59 that the testator must not be a minor, there is one exception to be found in s
60 which lays down that a father (and he alone ), whatever his age may be. can by will, appoint a guardian for his
minor children In such cases, the father’s age is immaterial.
C. EXECUTION OF WILLS (Ss. 63-66)

Under the Indian Succession Act, all wills are broadly classified into two categories, privileged wills and
unprivileged wills

Under S. 65, privileged wills are those made by

(a) a soldier employed in an expedition or engaged in actual warfare; or
(b) an airman employed in an expedition or engaged in actual warfare; or
(c) any mariner being at sea, —provided he has completed eighteen years of age. All other wills are called
unprivileged wills, and require the prescribed formalities to be compiled with.

However, S 65 (above) does not apply to a Hindu, Buddhist, Sikh or Jain

Illustrations

(i) A, a medical officer attached to a regiment, is actually employed in an expedition. He is a soldier and can make a
privileged will
(ii) A is at sea in a merchant-ship of which he is the purser. He is a mariner, and being at sea, can make a privileged
will.
(iii) A, a soldier serving in the field against insurgents, is a soldier engaged in actual warfare, and as such, can
make a privileged will.
(iv) A, a mariner of a ship, in the course of a voyage, is temporarily on shore while she is lying in a harbour. He is,
for the purposes of this section, a mariner at sea and can make a privileged will.
(v) A, an admiral who commands a naval force, but who lives on shore, and only occasionally goes on board his
ship is not considered as at sea and cannot make a privileged
(vi) A, a mariner serving on a military expedition, but not being at sea, is considered as a soldier and can make a
privileged will

In one English case, a soldier went to his Solicitor and instructed him to make a will However, before the will could
be prepared, the soldier was shot dead The Court held that as the soldier was not engaged in actual warfare, fie was,
therefore, not entitled to make a privileged will. (In the Estate of Anderson, (1944) P 6)

Thus, a soldier while in barracks and an airman on land would not be entitled to make privileged wills. The term
mariner is a wide expression which includes all seamen from the captain to the cook, provided they are at sea.

Execution of privileged wills (S. 66)

The following six rules are to be noted as regards execution of privileged wills:

(i) The testator (i.e., the person making the will may write such a will wholly in his own handwriting. In such a case,
it need not be signed by him or attested by witnesses.
(ii) The will may be written, wholly or in part, by another person, and signed by the testator. In such cases,
attestation by witnesses is not necessary
(iii) Even if the will is written, wholly or in part, by another person, but is not signed by the testator, it is valid,
provided it was written under the testator’s directions or if he recognised it as his will.
(iv) If the soldier, airman or mariner had given written instructions to prepare his will, but died before it could be
so prepared, such written instructions are to be considered as a valid will made by him.
(v) Even verbal instructions for preparing a will would amount to a valid will made by such a person, provided that
—
(i) the verbal instructions were given in the presence of two witnesses:
(ii) such instructions have been reduced to writing in his lifetime; and

(iii) he has died before the formal will could be prepared and executed.

In such cases, it is not necessary that the verbal instructions should be reduced to writing in his presence or be read
over to him.
(vi) Lastly, such a will can be made by the soldier, airman or mariner by word of mouth, i e, an oral declaration of
his intentions before two witnesses present at the same time However, such an oral will automatically becomes null
and void at the expiry of one month after such a person, being still alive, has ceased to be entitled to make a
privileged will.

SUMMARY REGARDING PRIVILEGED WILLS PRIVILEGED WILL

can be

i. Verbal

ii. Written

If verbal,

- it must be declared before two witnesses present at the same time.

If written,

— the following rules will apply :

Written by whom
Rule I.— By the testator wholly
Signature of Testator
Not necessary
Attestation
Not necessary

Written by whom
Rule II.— By another person (wholly or in part)
Signature of Testator
Necessary (unless it is shown that (i) it was written under his direction, or (ii) he recognised it as his will).
Attestation
Not necessary

Rule III. — Instructions to prepare a will also constitute a will, provided—

(i) they are in writing, and
(ii) the testator dies before the will is prepared.
Rule IV.— Verbal instructions also constitute a will, provided—
(i) such instructions were given in the presence of two witnesses;
(ii) such instructions were reduced to writing in his lifetime; and
(iii) he dies before the instrument is prepared.

Execution of unprivileged wills

As regards unprivileged wills, i.e., all wills made by persons other than soldiers, airmen and mariners referred to
above, the following three conditions must be satisfied :

(i) Signature.— Either the testator must sign or affix his mark to the will, or the will must be signed by some other
person in the testator’s presence and under his directions.
(ii) Intention behind signature.— Such signature or mark must be so placed that it appears that it was intended to
give effect to the writing as a will.
(iii) Attestation— The will must be attested by at least two witnesses as under :
(a) Each witness must have seen the testator sign (or affix his mark ) or seen some other person sign the will in the
testator’s presence and under his directions. or
(a) Each witness must have received from the testator a personal acknowledgement of his signature (or mark) or of
the signature of such other person.
(b) Each witness must sign the will in the presence of the testator, although they need not sign in the presence of
each other. Ordinarily, wills are signed by the testator himself. However, a testator may, instead of signing the will,
put his mark (e.g. thumb Impression) thereon, either because he is illiterate, or because he is incapable of signing
(on account of weakness, or a fractured finger, for instance), or even through sheer habit.

ATTESTATION.— A mere signing on a will by another person does not always amount to attestation. Attesting
means signing a document for the purpose of testifying to the signature of the person executing the document. It is
not necessary that the attesting witness should know the contents of the will.

Although the Act specifically provides that no particular form of attestation .hall be necessary, the following is a
form usually followed In practice :

Signed by X.Y.Z., the testator abovenamed, as and for his last will and testament, in the presence of us both present
at the same time, who at his request, and in his presence, have hereunto subscribed our names as witnesses.
Sd/- X.Y.Z.

Sd/- A.B.C.
Sd/- PQR.
(Here, X.Y.Z. is the testator and A.B.C. and P.Q.R.are the attesting witnesses.)

It has been held that although S. 68 of the Indian Evidence Act, 1872 provides that only one attesting witness, if
alive and subject to the process of the Court and capable of giving evidence, is to be called to prove the execution of
the document, it would be incumbent on a person claiming under a will to prove that the document was executed as
required by S. 63. Proof of attestation of the document by one witness would not satisfy the statutory requirement of
attestation of a will, and so long as it is not proved that the document was attested by two witnesses, it cannot have
the legal sanctity of a will. (T.V.S. Rao v. T Kamakshimma, AIR. 1978 On. 145)

Problems

1. W was an illiterate woman. She touched the pen and gave it to K, who made a mark on the will and wrote that this
was the mark of W It was proved that this was done in the presence of and by the direction of W Can the will be said
to be properly executed’)

Ans.— The Madras High Court has held, in Dasureddi v. Venkatasubbhamal, that such a will is deemed to be validly
executed.

2. X gave instructions for drawing up her will This was done and read over to her when she was in her proper senses
Later Y. asked her if he (Y) could sign the will for her, and she nodded her assent Thereupon, Y guided her hand to
make a mark and then Y wrote X’s name under the mark. Was the will properly executed’)

Ans.— The Calcutta High Court has held, in Mukta Nath v Jitendra Nath, in these circumstances, the will was
properly executed.

3. A member of a military force is sent for training, ,here he makes a privileged will and dies. Is this will valid’)

Ans.— It has been held (in Re Wingham) that it is not valid, because such a person cannot be said to have been km
actual military service” when he made the will.

Cases

The Bombay High Court has laid down that the person wishing to prove a will has to prove both due execution, as
well as the testamentary capacity of the testator, and that once these are established, the onus which rests on such a
person is discharged. If, however, there are suspicious circumstances surrounding the execution of the will, it would
be necessary to satisfactorily explain such circumstances before a probate of the will can be granted. Suspicious
circumstances may be said to exist where, for instance, the signature is doubtful, or the testator was in a feeble
state of mind or the disposition in the will appeared to be unnatural or improper, or if the person deriving substantial
benefits under a will, had played an unduly prominent part in its execution. However, it is not possible to draw any
sinister inference only from the fact that the will was not known to the testators wife. Similarly, the fact that the
propounder was the general mukhtyar of the testator cannot, by itself, be said to be a suspicious circumstance.
(Totaram v. Ramabai. A.I.R. 1976 Born. 315)

In Totaram v Ramabai (referred to above), it has also been held that in order to vitiate a will on the ground of undue
influence, it is not sufficient to show that the propounder of the will was in a position to exercise such influence or
had the opportunity or chance of exercising it It is further necessary that there is evidence to show that such undue
influence was in fact exercised on the testator.

In Alma Ram v Parsini (A I.R. 1979 P & H. 234), the Punjab and Harayana High Court has held that if one of the
two attesting witnesses belonged to a village different from that of the testator, this, by itself, Is not a good ground
for discarding his statement. Non-production of the other attesting witness before the Court is also not a sufficient
ground for declaring as invalid a will which is otherwise valid.

The Punjab and Haryana High Court has held that if one document makes two different and distinct dispositions,
one by way of gift in respect of certain specified items, and the other by way of a testamentary disposition in respect
of other property, and there is no Interdependence between the two, then, if the gift fails for any reason, the efficacy
of the testamentary disposition is not affected, and it can operate as a valid will. (Shiv Dass v. Devki, A.I.R. 1978 P
& H. 285)

The Madhya Pradesh High Court has held that the validity of a will or the provisions thereof as regards restrictions
on the power of testamentary disposition is determined according to the law in force at the time of the testator’s
death, and not the law in force when the will was executed. (Rambat v. Mst. Bhundkuwar, A.I.R. 1978 N.O.C. 268
M.P.)

Incorporation of papers by reference (S. 64)

If a testator, in a will or codicil which is duly attested, refers to any other document then actually written, as
expressing any part of his intention, such a document is to be deemed to form a part of that will or codicil.

Four conditions have to be complied with before a document can be so incorporated :

(1) The document must be of a testamentary nature. (Habergham v. Vincent)

(2) The document must be in existence at the date of the will (or codicil, as the case may be).
(3) The document must be clearly identified with its description given in the will.
(4) The intention to incorporate such a document must be clearly expressed.

Effect of gift to attesting witness (S. 67) (Not applicable to Hindus, Buddhists, Sikhs & Jains)

If the testator makes any gift to an attesting witness, or to his wife, or her husband, such a gift will be void, but the
will is deemed to be validly attested. So, if a will is attested by A and B, and a legacy is given in that will to AS wife,
such a legacy will not take effect The will, however, remains a valid will.

Thus, A executes a will which is attested by B and C. A legacy of Rs. 1,000 is bequeathed to D, who is Cs son. The
bequest will be because S. 67 refers only to the husband or wife of an attesting witness, and not to his or her
children.

S. 67, however, also clarifies that a legatee under a will does not lose his legacy by attesting a codicil which
confirms the will

Thus, X makes a will, wherein a legacy is giver) to a legatee, L. The will is attested by Y and Z. Later, X executes a
codicil to his will and requests L to attest the codicil. By doing so, L does not lose his legacy under X’s will.

Problem— A bequeaths his property to his wife for life, and after her death to his children X,Y arid Z, or the
survivors in equal shares. There is a residuary clause in favour of B. X was one of the attesting witnesses to the will.
After the widow s death. Y and Z file a suit that X was incapable of taking the legacy (as he had attested the will),
and that therefore, his share also would go to V and Z. Decide the case.

Ans.— X, being an attesting witness, cannot get the legacy, and his share will lapse. However, it will go to the
residuary legatee B, and not to V and Z. (Kamini v. Barefoot, 26 Mad. 433)

S. 67, however, does not apply to Hindu, Buddhists, Sikhs and Jains. So, a legatee under the will of a Hindu testator
will not lose his legacy only because he was also the attesting witness

Executor not disqualified from being a witness (S. 68)

An executor is, however, not disqualified from being a witness. In other words, although a legatee cannot claim
under a will if he (or his spouse) is a witness to the will, there is no such bar on an executor, and thus, the same
person may validly be the executor as well as an attesting witness. But, in such a case, he cannot take a legacy or
other benefit under the will.
D. REVOCATION OF WILLS (Ss. 62, 69, 70 & 72)

A will is liable to be revoked or altered by its maker at any time when he is competent to dispose of his property by
will : S. 62.

Modes of revoking—

Unprivileged will Or codicil (Ss 69-70)

It is revoked by
1. The testator’s marriage. (However this provision does not apply to a Hindu. Buddhist, Sikh and Jain.)
Privileged will or codicil (St 69 & 72) (not applicable to a Hindu, Buddhist, Sikh and Jain)
It is revoked by
1. The testator’s marriage.

Unprivileged will Or codicil (Ss 69-70)

2. By another will or codicil.
Privileged will or codicil (St 69 & 72) (not applicable to a Hindu, Buddhist, Sikh and Jain)
2. By an unprivileged will or codicil.

Unprivileged will Or codicil (Ss 69-70)

3. By some writing ’declaring an intention to revoke it (animus revocandi) and executed as a will is required to be
executed.
Privileged will or codicil (St 69 & 72) (not applicable to a Hindu, Buddhist, Sikh and Jain)
3. By any act expressing an intention to revoke it, with necessary formalities needed for a privileged will.(It is,
however, not necessary that the testator should, at the time of doing that act, be in a situation which entitles him to
make a privileged will.)

Unprivileged will Or codicil (Ss 69-70)

4. By burning, tearing or otherwise destroying the same by the testator (or by some person in his presence and by his
direction) with the intention of revoking the same.
(Same as for privileged wills)
Privileged will or codicil (St 69 & 72) (not applicable to a Hindu,
Buddhist, Sikh and Jain)
4. By burning, tearing or otherwise destroying the same, by the testator (or by some person in his presence and by
his direction), with the intention of revoking the same.
(Same as for unprivileged wills)

Illus.— (i) A has made an unprivileged will. Afterwards, A makes another unprivileged will which purports to revoke
the first. This is a revocation.

[Note : Even it the second will does not expressly mention about the revocation of the earlier will, the legal effect
will be that the earlier will stands automatically revoked]

(ii) A has made an unprivileged will. Afterwards, A being entitled to make a privileged will makes a privileged will
which purports to revoke his unprivileged will. This is a revocation.

As seen above, a will is revoked by the marriage of the testator. However, there are five exceptions to this rule, as
follows :
(i) The rule does not apply to a Hindu, Buddhist, Sikh or Jain.
(ii) Similarly, under Mohammedan law, a will made by a Mohammedan is not revoked by his marriage.
(iii) When a will is made in the exercise of a power of appointment, the testator’s marriage does not revoke the
will.
(iv) When two persons make a mutual will, the marriage of one of them does not revoke the will.
(v) There is no revocation when the subsequent ”marriage” is itself void.

DOCTRINE OF DEPENDENT RELATIVE REVOCATION.–When a testator destroys a will or codicil with the
intention of setting up a previous will or codicil executed by him, the animus revocandi or the intention to revoke is
a conditional one,—the condition being the validity of the document intended to be set up if, therefore, the
document intended to be set up is not a legal one. e.g., if it is not validly executed, the subsequent will is not
revoked. This is known as the doctrine of dependent relative revocation.

Thus, a testator makes a will in the year 2009. He then executes another will in the year 2010. Thereafter, he decides
to cancel the later will (that is, the one made in 2010) with the sole intention of setting up the earlier (2009) one.
However, the earlier will was not valid (as it was attested by only one witness). In the circumstances, the subsequent
will (made in 2010) is not revoked

The application of this doctrine is a question of intention, which has to be ascertained from the language of the
testator. as found in his will. Unless and until the first document or writing is effectually revived, there can be no
revocation of the subsequent will

In order that the doctrine of relative revocation may apply, the act of destruction must be referable wholly and solely
to the intention of setting up some other testamentary paper. Thus, if a testator executes a will on several sheets of
paper and afterwards lakes out one sheet and substitutes another in its place which is not signed or attested, the
doctrine will not apply, and probate will be refused of the whole will.

In one English case, the testatrix had made her will in 1965, under which she devised a small legacy to her two
nieces Shortly before her death in 1970, she told her bank manager that she had decided to give the same legacy to
another relative instead of her nieces. She had then gone to her solicitor’s office, but the solicitor was not available,
and before she could go there again, she died. After her death, the will was found in a torn and mutilated
condition, and the question before the Court was whether the doctrine of dependent relative revocation applied. The
Court of Appeal held that a mere intention to make a new will at the time of the destruction or mutilation of an
existing will is not, itself, enough to make the testator’s revocatory intention conditioned on the making of the new
will. The will was, therefore, held to have been effectively revoked. (In Re - Jones (1976) 1 Ch. D. 200)

Problems

(1) A, who had made an unprivileged will, declares in the presence of two witnesses, ”I hereby revoke my will”.
Dues this operate as a legal revocation of A’s will ?

Ans.– A’s will cannot be said to be legally revoked. A mere oral declaration, even if in the presence of witnesses,
does not act as revocation of a written will.

(2) A, whilst delirious, tears up his will into pieces. The pieces are preserved, and on recovering, A is informed of
what he had done. A says that he would make a fresh will. A, however, dies without making a fresh will Is the will
revoked ?

Ans.- In this case, it is to be noted that A did not have the necessary animus revocandi when he tore up the will.
Hence, the will is not revoked. (Brunt v. Brunt)

(3) A, the testator, draws some lines across his will and writes on the back of it -This is revoked”. Is the will
revoked ?

Ans - A similar question came up before an English Court in Cheese v Lovejoy where the Court held that the will
cannot be said to be revoked under these circumstances. Such a writing should have been signed by the testator and
attested by two witnesses.

(4) A, the testator, writes at the foot of his will, a Memorandum to the effect that the will is cancelled on that day.
The Memorandum is signed by the testator and attested by two witnesses. Is the will revoked ?

Ans.- A’s will is validly revoked.

(5) A, residing at Pune, writes to B, his Solicitor at Mumbai, requesting B to destroy his will. On receiving the letter,
B duly destroys the will Caro the will be said to be revoked ?

Ans.- As the will was not destroyed in the presence of the testator, it cannot be said to be revoked.

(6) A, the testator is riot very happy with his signature on the will and so he erases it and writes it again in a better
way. However, this is not done in the presence of any witnesses. Is the will revoked?

Ans.- As there is no animus revocandi in this case, the will is not revoked.

(7) A, being moved with a sudden impulse of passion against a devisee under the will, conceived the intention of
cancelling it. So, he tore his will twice through, when his arms were arrested and his anger mitigated by the
submission of the devisee. So he fitted all the pieces together, and said ”It is a good job: it is not worse”. Can the
will be said to have been revoked?

Ans.- On these facts, it was held in Deo v. Perkes that there is no revocation of the will in such a case.

(8) A makes his will and keeps it for safe custody with his Attorneys. Seven years later, he sends for the will and
draws two lines on the first page and writes on the top of that page ”This will is cancelled” and puts his signature
there. The rest of the will is not so cancelled. Can the will be sad to be cancelled in these circumstances ?

Ans.- The Bombay High Court has held, that in these circumstances the will is not revoked. (Kharsetji v. Kekobad)

(9) A, intending to make a new will, revokes a will already made. A dies without making a new will. Is the
revocation of the will complete?

Ans.—Two conflicting views have been taken in this matter. The first view is that the revocation is complete. In order
that the doctrine of dependent relative revocation may apply, there must be an intention to set up a will which is
already existing, and not a will which is yet to be executed (Williams v. Tyley, (1859) Johns. 529). However, a
contrary view has been taken in Dixon v. Solicitor to the Treasury and in Halsbury’s Laws of England.

Power of appointment (S. 69, Explanation)

The Explanation to s. 69 defines what a power of appointment is. It lays down that when a man is invested with
power to determine the disposition of property of which he is not the owner, he is said to have power to appoint for
such property.

GENERAL AND SPECIAL POWER — Powers are of two kinds : general and special When property is
bequeathed to A in trust for any person or persons and in such share or shares as A may, by any deed or will, appoint,
and in default of appointment, to B. the power of appointment is said to be general A power is said to be special or
limited when property is bequeathed to A in trust for such child or children of B and in such share or shares as A
may, by any deed or will, appoint, and in default of appointment, to all the children of B in equal shares.

In the case of general power, although A is not the beneficial owner of the property, yet, he has the power, at any
time, to dispose of the property as he likes, and he may give the property to any person, including himself Such a
power of appointment is almost as good as ownership of property In the case of a special power, although the
property is at the disposal of A, still he cannot convert it to his own use. He has merely a power of disposition over
it.

Lost will

In England, where it is shown that a will was in the custody of the testator, with whom it was last seen, but is not to
be found at the time of his death, there is a presumption that the will was destroyed by the testator himself, for the
purpose of revoking the same. Under English law, it cannot be presumed that it was destroyed by some other person
without the testator’s knowledge or authority (Welch v Phillips, 1936, 3 Moo P C. 299)

However, before this rule in Welch v Phillips can be applied, it must be proved that, on the death of the testator, a
search was made for the will and it was not found. If no search was made, the presumption cannot be raised that the
testator had revoked the will

This presumption is not irrebuttable, and can be rebutted by the facts of the case. The strength of the presumption
will depend on the character of the custody which the testator has over the will.

The above rule is to be applied with great caution in India, in view of the habits and the peculiar living conditions of
the country. Mere loss of the will thus does not operate as a revocation in India. (Babulal v Baijnath, 24 Pat 395)

As observed by the Supreme Court, even if the presumption of Welch v Phillips is drawn in India, it is a rather weak
presumption in view of the conditions prevailing in India. (Durga Prasad v. Devi Charan. AIR 1979 S C 145)

In India. to establish revocation of the will, destruction by the testator would have to be shown. It is not justifiable
to infer revocation from the mere fact that the original will cannot be found after the death of the testator

As observed by the Calcutta High Court, in India, deeds and documents are generally not kept or preserved with
the same care as in England Therefore, in India, one could even make a contrary presumption, namely, that is a will
cannot be located after the testator’s death, it must have been mislaid. This presumption may be made particularly in
those cases where it is shown that the testator’s papers were, after his death, accessible to those persons in whose
interests In would be to destroy the will. (Anwar Husain v. Secretary of State, 31 Cal 885)

When there is no obvious reason or clear motive for the testator to revoke the will, and yet. the will is not to be
found after his death, it is possible that the will was misplaced or lost — or even stolen by interested person:.
Whether a will was or was not revoked by the testator in such cases will thus depend on the facts and circumstances
of each case.

Under the Indian Succession Act, where a will has been lost, but a copy or draft of the will has been preserved,
probate may be granted of such copy or draft, limited in time until the original or a properly authenticated copy
thereof is produced. Even if no copy or draft has been preserved, probate can still be granted of its contents, if such
contents can be established by evidence. (Ss., 237 & 238)

E. OBLITERATIONS AND ALTERATIONS IN A WILL (S. 71)

Often one finds alterations, interlineations and obliterations in a will. These may have been made either before or
after the execution of the will. As regards alterations made before execution, these will be admitted to probate, if it is
proved that the same were made before the will was executed In such cases, they form part of the final will, on the
ground that they reflect the testator’s true intentions, inasmuch as the testator made such alterations before signing
the will. Such alterations in a will, will be valid, if they are initialled or signed by the testator as well as by the
attesting witnesses.

If proof is not forthcoming that such alterations were made before the execution of the will, it will be presumed that
they were made after execution, and s. 71 will apply.

Under S. 71, no obliteration, interlineation or other alteration made in an unprivileged will after its execution has
any effect, except so far as the words or meaning of the will have been thereby rendered illegible or undiscernible.

This rule, however, does not apply if such alteration is executed in the same way as a will is required to be
executed.

Moreover, such an altered will is to be deemed to be duly executed if the signature of the testator and the witnesses
are put—

(a) in the margin or some other part of the will, opposite to or near such alteration; or
(b) at the foot or end of or opposite to a Memorandum which refers to such alterations and is written at the end or
some other part of the will.

Examples

(1) By his will, A bequeaths Rs. 1,000 to B Later, he cancels Rs. 1,000 and writes Rs. 5,000 over it. This cancellation
is neither signed by A nor attested by witnesses. The alteration is void, and the original bequest takes effect, i.e., B
will get As 1,000

(2) A, the testator, makes certain alterations in his will These alterations are not signed. Afterwards, he makes a
codicil, which is validly executed, and in which he confirms the same alterations previously made in the will. The
alterations will take effect

(3) A, makes a will in his own hand on four sheets, and pins them together and puts the date on the will. Later, he
removes the second page and substitutes a new page containing a bequest to a person not born at the date of the will.
In these circumstances, the Court will refuse to grant a probate of the substituted page.

(4) A writes in his will ”I bequeath Rs. 1,000 to B ” Later, he sticks a piece of paper over these words and writes on
such paper, 1 bequeath Rs. 500 to C’. This slip of paper is not signed or attested In these circumstances, the bequest
to C is void. Moreover, the Court will not order the slip of paper to be removed to see what is written underneath.
Consequently, B also will get nothing

F. REVIVAL OF UNPRIVILEGED WILLS (S. 73)

Under S..73, if an unprivileged will is once revoked, it can be revived only by—

(i) re-execution, or
(ii) by a codicil properly executed and showing an intention to revive it.

No doubt, the testator has power to revoke his will or codicil. But he has equally the power to revive such revoked
will or codicil. This can be done in the two ways specified in S. 73. It may be noted that a will which is destroyed
cannot be revived. The testator has to make a will de nova in that case.

S 73 also provides that if a will or codicil is first partly revoked and then wholly revoked, but is subsequently
revived, the revival will not extend to that part which was revoked before the revocation of the whole, unless an
intention to the contrary is shown by the will or codicil.

In other words, if the will is first partly revoked and then wholly revoked and then revived, the revival will operate
only on the portion last revoked, unless it appears that the whole will is intended to be revived

Thus. a testator who has made a will containing 10 clauses, first revokes clauses 5, 6 and 7. Later, he revokes the
whole will. Still later, he revives the will. This revival will revive only the other seven clauses, unless there is a clear
intention to revive the whole will.

It has been held that the destruction of a second will which revokes a will of an earlier date cannot reinstate the first
will, even though it may be in existence at the time of the testator’s death. (Brown v Brown 8 E & B 870)

Moreover, the will which is revived is deemed to be a new will, and is deemed to bear the date of its revival.
(Goonewardene v. Goonewardene, A.I R. 1931 PC. 307)

G. CONSTRUCTION OF WILLS (Ss. 74 - 101)

The rules relating to construction of wills can be discussed under the following seven heads :

1. General rules for construction of a will

2. Construction of words : Ss. 74, 75, 83, 86-87, 90, 95, 99-100
3. Errors : Ss. 76-79
4. Ambiguity : Ss. 80-81
5. Inconsistent clauses : Ss. 82, 84-85, 88
6. Rules for construing bequests : Ss. 90-98
7. Cumulative or non-cumulative bequests (s. 101)

1. GENERAL RULES FOR CONSTRUCTION OF A WILL

There is one important general rule of construction. In construing a will, the Court must give effect to the intention
of the testator. The intention is to be collected from the words of the will, taking the whole of the instrument
together. All that the testator has written is to be construed, by every part being taken into consideration according
to Its grammatical construction and ordinary connotation of the words used, with the assistance of such oral
evidence of the surrounding circumstances, as is admissible, to place the Court in the position of the testator.

Although a will speaks as at the death of the testator, the Court should consider the surrounding circumstances, the
position of the testator, his family relationships, his educational background, the probability that he used particular
words in a particular sense, as well as his race and religious opinions at the date of the will, in order to give effect to
the words used in his will. Without taking evidence of such facts and circumstances, the meaning and application of
the testator’s words may not be fully understood

Thus, in construing a will, it is necessary that the Court should put itself, as far as it can, in the position of the
testator, and interpret his expressions as to persons and things with reference to that degree of knowledge of those
persons and things which so far as it can discover, the testator possessed. The Court may look at the surrounding
circumstances existing at the time when the testator made his will. The court is entitled to put itself into the
testator’s armchair, and consider the circumstances by which he was surrounded when he made his will, as this
would certainly assist the Court in ascertaining his intention.

The question of construction of a will came up recently before the Supreme Court of India Delivering its judgment,
the Supreme Court observed that the fundamental rule in construing a document was to ascertain the intention of
the testator from the words used by him. The surrounding circumstances should be considered, but this should be
only for the purpose of finding out the intended meaning of the words actually used. In construing the language of a
will. the Court would be entitled to put itself into the testator’s chair and would be bound to bear in mind matters
other than merely the words used. For instance, it must consider the surrounding circumstances, the position of the
testator, his family relationship and the probability that he would use certain words in a particular sense

Whilst delivering the judgement, the Supreme Court laid down the following guidelines to be observed when
construing a will

1. The true intention of the testator has to be gathered, not by attaching importance to isolated expressions. but by
reading the will as a whole with all its provisions, and ignoring none of them as redundant or contradictory
2. The Court must also look at the circumstances in which the testator makes his will, such as the state of his
property, of his family and the like Where apparently conflicting dispositions can be reconciled by giving full effect
to every word used in a document, such a construction should be accepted, rather than a construction which would
have the effect of cutting down the clear meaning of the words used by the testator
3. Further, where one of two reasonable constructions would lead to inconsistency, that should be discarded in
favour of a construction which does not create any such hiatus.
4. It is one of the cardinal principles of construction of wills that, to the extent it is legally possible, effect should be
given to every disposition contained in the will — unless the law prevents effect being given to it

2. CONSTRUCTION OF WORDS (Ss. 74-75, 83, 86-87, 90, 95, 99-100)

As regards construction of words and expressions used in a will, the following eight rules are to be applied :

I. It is not necessary to use technical words; it is sufficient if the words used indicate the intention of the testator. (s.
74)

II. For the purpose of determining questions as to what person or what property is denoted by any words used in a
will, the Court must inquire into every material fact relating to the persons who claim to be interested under such
will, the property which is claimed, the circumstances of the testator and of his family, and into every fact, a
knowledge of which may conduce to the right application of the words which the testator has used (s. 75)

Illus.— (a) A. by his will, bequeaths Rs. 1,000 to his eldest son or to his youngest grandchild or to his cousin, Mary.
A Court may make inquiry in order to ascertain to what person the description in the will applies.

(b) A, by his will, leaves to B ”my estate called Black Acre”. It may be necessary to take evidence in order to
ascertain which is the subject-matter of the bequest, that is to say, which estate of the testator is called Black Acre

(c) A, by his will, leaves to B ”the estate which I purchased of C.” It may be necessary to take evidence in order to
ascertain what estate the testator purchased of C.

In one case. the testator made a bequest to ”my nephews and nieces”. The testator had no nephews and nieces
either at the date of the will or at the time of his death. However, his wife did have nephews and nieces In the
circumstances, the Court held that evidence would be admissible to show that the words referred to the nephews and
nieces of the testator’s wife. (Sherratt v. Mountford, L.R. 8 Ch. 928)

In another case, a testator gave legacies to ”Mary, Elizabeth and Ann, the daughters of Mary Benyon”. At the date of
the will, Mary Benyon had two legitimate daughters Mary and Ann, and an illegitmate daughter, Elizabeth. In these
circumstances, Elizabeth filed a suit as one of the persons fully answering the description in the will. Evidence was
led to show that Mary Benyon formerly had a legitimate daughter named Elizabeth, who died some years before
the will was executed.

It was also shown that the testator did not know of the death of this Elizabeth or of the birth of the illegitimate
Elizabeth. In the circumstances, the Court held that Elizabeth (who had filed the suit) was not entitled to the legacy.
It was observed that a testator cannot be taken to have meant to benefit a person of whose existence he was not even
aware — even if such a person fully answers the description in the will. (Doe Thomas v. Benyon, 12 Ad. and E. 431)

III. General words may be understood in a restricted sense and vice-versa, if other words in the will show that such
was the intention of testator (s. 83), and the intention of the testator should not be set aside because it cannot take
effect to the full extent, but effect is to be given to it as far as possible. (s. 87)

Illustrations.— (a) A testator gives to A ”my farm in the occupation of B,” and to C ”all my marsh-lands in L” Part
of the farm in the occupation of B consists of marsh-lands in L, and the testator also has other marsh-lands in L. The
general words,.”all my marsh-lands in L” are restricted by the gift to A. A takes the whole farm in the occupation of
B, including that portion of the farm which consists of marsh-lands in L.

(b) The testator (a sailor on ship-board) bequeathed to his mother, his gold ring, buttons and chest of clothes, and to
his friend, A (a ship-mate), his red box, clasp-knife and all things not before bequeathed. The testator’s share in a
house does not pass to A under this bequest.

(c) A, by his will, bequeathed to B all his household furniture, plate, linen, china, books, pictures and all other
goods of whatever kind, and afterwards bequeathed to B a specified part of his property Under the first bequest, B is
entitled only to such articles of the testator’s as are of the same nature with the articles therein enumerated.

IV. Unless a contrary intention appears, if the same words are used in different parts of the same will, they should be
given the same meaning throughout the will.

Thus, where a testator had used word ”children” in several clauses of the will, it was held that this word was
used in its ordinary sense to mean sons as well as daughters. It would not be right to interpret it one clause to mean
sons only, and in other clauses as meaning sons and daugthers. (Krishnarao v. Benabai, 20 Born. 571)

V. Words describing the property to be bequeathed must be deemed to refer to property answering the description at
the lime of the testator’s death. (s. 90)

This rule is based on the well-established legal principle that a will speaks from the date of the death of the testator
and not from the date of its execution.

An interesting illustration of this rule is the English case in Re Gilliness Inglis, (1909 I Ch. 345), where the testator
gave 25 shares in Company to a legatee. When he executed the will, each share was of the face value of £ 50.
However, by the time he died, the shares were divided into shares of the face value of £ 10 each. The Court held
that the legatee would get 25 shares of £ 10 each.

VI. Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it
appears from the will that only a restricted interest was intended to be given to him. In other words, bequests
without words of limitation refer to the whole Interest of the testator. (s. 95)

VII. Words expressing relationship denote only legitimate relatives

of person, and failing such. those reputed to be legitimate. (s. 100)

Illustrations.— (a) A having three children, B, C and D, of whom B and C are legitimate and D is illegitimate,
leaves his property to be equally divided among ”my children”. The property belongs to B and C in equal shares, to
the exclusion of D.

(b) A. having a niece of illegitimate birth, who has acquired the reputation of being his niece, and having no
legitimate niece, bequeaths a sum of money to his niece The illegitimate niece is entitled to the legacy.

(c) A, having in his will enumerated his children, and named one of them as B, who is illegitimate, leaves a legacy
to ”my said children”. B will take a share in the legacy along with the legitimate children.

(d) A leaves legacy to the children of B”. B is dead and has left none but illegitimate children. All those who had at
the date of the will acquired the reputation of being the children of B’ are objects of the gift.

(e) A bequeaths a legacy to ”the children of B”. B never had any legitimate child. C and 0 had, at the date of the
will, acquired the reputation of being children of B. After the date of the will and before the death of the testator.
E and F were born, and acquired the reputation of being children of B. Only C and D are objects of the bequest.

(f) A makes a bequest in favour of his child by a certain woman, not his wife. B had acquired, at the date of the will,
the reputation of being the child of A by the woman designated. B takes the legacy

(g) A makes a bequest in favour of his child to be born of a woman who never becomes his wife. The bequest is
void.

(h) A makes a bequest in favour of the child of which a certain woman, not married to him, is pregnant. The
bequest is void.

VIII. Lastly, S. 99 lays down the rules of construction of the following terms in a will

(i) The word ”children” applies only to lineal descendents in the first degree.
(ii) The word ”grandchildren” applies only to lineal descendents in the second degree.
(iii) The words ”nephews” and ”nieces” apply only to children of brothers and sisters.
(iv) The expressions ”cousins” or ”first cousins” or -cousins german” apply only to children of brothers or of
sisters of the father or mother of the person
(v) The words ”second cousins” mean only the grandchildren of brothers or of sisters of the grandfather or
grandmother of the person.
(vi) The words ”issues” or ”descendants” apply to all lineal descendents of the person.
(vii) All words which express a relationship also apply to a child in the womb, who is afterwards born alive.

3. ERRORS (Ss. 76-79)

Four rules relating to errors in will have been laid down, as follows
(a) An error in the name or description does not vitiate a legacy if the words sufficiently show what is meant. (This
is expressed by the maxim false demonstratio non nocet.)

A mistake in the name of a legatee may be corrected by his description, and a mistake in the description of a legatee
may be corrected by the name. (s. 76)

Illus. (i) A bequeaths a legacy ”to Thomas, the second son of my brother John”. The testator has an only brother
named John, who has no son named Thomas, but has a second son whose name is William. William shall have the
legacy.

(ii) A beqeueaths a legacy ”to Thomas, the second son of my brother John”. The testator has an only brother named
John, whose first son is named Thomas, and whose second sun is named William. Thomas shall have the legacy.

(iii) The testator bequeaths his property ”to A and B, the legitimate children of C’ C has no legitimate child but has
two illegitimate children, A and B. The bequest to A and B takes effect, although they are illegitimate.

(iv) The testator gives his residuary estate to be divided among ”my seven children”, and, proceeding to enumerate
them, mentions six names only. This omission will not prevent the seventh child from taking a share with the others.

(v) The testator, having six grandchildren, makes a bequest to ”my six grandchildren,” and proceeding to mention
them by their Christian names, mentions one twice over omitting another altogether. The one whose name is not
mentioned will take a share with the others.

(vi) The testator bequeaths ”Rs 1,000 to each of the three children of A.” At the date of the will. A has four children.
Each of these four children will, if he survives the testator, receive a legacy of Rs. 1,000.

Problems 1. X has three sons arid one daughter A bequest is made to ”the bur sons of X’ Will the daughter get the
legacy ?

Ans- Yes, the daughter will get the legacy along with the sons.

2. A testator bequeaths ”to each the two sons and daughters of X As 500 apiece” Both at the date of the will and at
the death of the testator, X had one son and tour daughters. Who will get the legacy ?

Ans.- Assuming that the testator left sufficient assets, each of the five children of X will receive Rs. 500.

3 X became engaged and was betrothed to Y By his codicil, after mentioning Y’s name and referring to his intended
marriage with her, he gave As 5,000 to ”my wife”. X died before the marriage. Will Y be entitled to the legacy ?

Ans - Y will be entitled to the legacy.

(b) If a word which is material to the expression of meaning is omitted, it may be supplied by the context. (s. 77)
Illus.- The testator gives a legacy of ”five hundred” to his daughter A and a legacy of ”five hundred rupees” to his
daughter B. A will take a legacy of five hundred rupees

(c) If the thing bequeathed can be sufficiently identified from its description, but some parts of the description do
not apply, such parts shall be rejected as erroneous, and the bequest shall take effect. (s. 78)

Illus.— (i) A bequeaths to B ”my marsh-lands lying in L and in the occupation of X” The testator had marsh-lands
lying in L, but had no marsh-lands in the occupation of X. The words ”in the occupation of X” shall be rejected as
erroneous, and marsh-lands of the testator lying in L will pass by the bequest.

(ii) The testator bequeaths to A ”my Zamindari of Rampur”. He had an estate at Rarnpur, but it was a taluq and not a
zamindari. The taluq passes by this bequest.

(d) If a will mentions several circumstances as descriptive of the thing bequeathed, and there is any property of his
in respect of which all those circumstances exist, the bequest is to be considered as limited to such property, and it is
not lawful to reject any part of the description as erroneous because the testator had other property to which such
part of the description does not apply.

Illus.- (i) A bequeaths to B ”my marsh-lands lying in L and in the occupation of X.” The testator had marsh-lands
lying in L, some of which were in the occupation of X, and some not in the occupation of X. The bequest will be
considered as limited to such of the testator’s marsh-lands lying in L as were in occupation of X.

(ii) A bequeaths to B, ”my marsh-lands lying in L and in the occupation of X, comprising 1,000 bighas of lands.” The
testator had marsh-lands lying in L, some of which were in the occupation of X and some not in the occupation of X.
The measurement is wholly inapplicable to the marsh-lands of either class or to the whole taken together. The
measurement will be considered as struck out of the will, and such of the testator’s marsh-lands lying in L as were in
the occupation of X shall alone pass by the bequest.

4. AMBIGUITIES IN WILLS (Ss. 80-81)

PATENT AND LATENT AMBIGUITIES — Ambiguity is of two kinds– patent and latent. Patent ambiguity is one
which is clear on the very face of a document. Thus! A says in his will– ”I give Rs. 2,000 to…. ” There is a blank
here. No legatee is mentioned This ambiguity is visible on the very face of the document It is an instance of a patent
ambiguity, which is dealt with by S. 81 of the Act

Latent ambiguity on the other hand, is one in which words are used which, though unambiguous, are capable of
being construed one way or the other. S. 80 deals with this kind of ambiguity

The general rule is that parol (oral) evidence of the testator’s intention is not admissible, unless there is a latent
ambiguity. e g., to explain a nick-name. But where a complete blank is left either for the name of the legatee or the
amount of the legacy no evidence will be allowed to fill in the blank. That is a patent ambiguity.

(a) Latent ambiguity (s. 80)

Where the words of a will are unambiguous, but it is found by extrinsic evidence that they admit of more than one
meaning. only one of which can have been intended by the testator. extrinsic evidence may be taken to show which
of these meanings was intended

In other words, if the ambiguity is latent. ie., the words used are unambiguous, extrinsic (outside) evidence can be
accepted by the court to clear the picture.

Illus.– (i) A man, having two cousins of the name of Mary, bequeaths a sum of money to ”my cousin, Mary” It
appears that there are two persons, each answering the description in the will That description therefore, admits of
two applications (i.e , meanings), only one of which can have been intended by the testator. Evidence is admissible
to show which of the two applications was intended.

(ii) A, by his will, leaves to B ”my estate called Sultanpur Khurd”. It turns out that he had two estates called
Sultanpur Khurd Evidence is admissible to show which estate was intended

SCOPE OF S. 80.- The section limits the admission of extrinsic evidence in the case of latent ambiguity only.
Where the language of the wilt, though intended to apply to one person or thing, applies equally to two or more, and
it is not possible to gather from the context which was intended, this rule comes into play. The words must be
unambiguous and apply to two or more objects of the testator’s bounty, as in Nos. (i) or to two or more objects of
disposition as in Illus. (ii) In such cases, the Court may admit extrinsic evidence.

In one English case, the testator had left legacies ranging between £ 25 and £ 250 to twenty-five different legatees.
The will contained a clause which read as follows :

Any residue remaining to be divided between those beneficiaries who have only received small amounts.”

This was a holoraph will (i.e., one written in the testator’s own handwriting) with scant punctuations. The residue
amounted to £ 14.300, and the question arose as to which of the legatees would be entitled thereto. The Court
observed that it was entitled to examine the original will and give proper weight to any punctuation or lack of it (as
in this case). In the circumstances, it held that the words ”beneficiaries who have received only small amounts” were
mere words of explanation, and it was improbable that the testator wanted those with the smallest legacies to get far
more than those with the largest Rather, the testator who, in the opinion of the Court, appeared to have been of no
great degree of sophistication must have preferred the greater simplicity of mathematical equality rather than
proportionate division. Hence, the Court ordered that the residue should be divided equally between all the legatees,
irrespective of the size of their legacies. It was also held that the gift of the residue was not void for uncertainty. (In
Re Steel, (1978) 2 W.C.R. 950)

(b) Patent ambiguity (S. 81)

S. 81 lays down that where there is an ambiguity or deficiency on the face of a will, no extrinsic evidence as to the
intentions of the testator can be admitted.

In other words,, if there is a patent ambiguity (i.e., one visible on the face of the will), extrinsic evidence is not
admissible to show what the intention of the testator was.

Illus.— (i) A man has an aunt, Caroline and a cousin Mary, and no aunt of the name of Mary. By his will, he
bequeaths Rs. 1,000 to my aunt, Caroline” and Rs. 1,000 to ”my cousin, Mary,” and afterwards bequeaths Rs. 2,000
to ”my before-mentioned aunt, Mary.” There is no person to whom the description given in the will can apply, and
evidence is not admissible to show who was meant by ”my before mentioned aunt, Mary.” The bequest is therefore
void for uncertainty under section 89.

(ii) A bequeaths Rs. 1,000 to leaving a blank for the name of the legatee. Evidence is not admissible to show
what name the testator intended to insert.
(iii) A bequeaths to B ” rupees” or ”my estate of Evidence is not admissible to show what sum or what estate
the testator intended to insert.

SCOPE OF S. 81.— This section lays down the rule that extrinsic evidence cannot be admitted in case of patent
ambiguity or deficiency, Le., an ambiguity on the face of the will itself. In other words, if the testator has kept his
will incomplete, evidence can never be given in order to complete it or to add to it or to explain the incomplete
portion. Thus, the legacy does not take effect in such cases.

Thus, in Adm. General v. Money 15 Mad 48, the testator by his will directed his executor to disburse out of Rs. 500,
petty pensions to such poor ”who have been mentioned to him — the executor — by me.” The Court held that
there was a deficiency on the face of the will as to the object of benefit, no extrinsic evidence was admissible, and
the legacy failed.

5. INCONSISTENT CLAUSES (Ss. 82, 84-85, 88)

Sometimes, a will contains inconsistent clauses. Ss. 82. 84, 85 and 88 lay down the following three rules to be
followed in such a case

(a) The meaning of a clause is to be collected from all parts of the entire instrument, construed with reference to one
another (s. 82)

In other words, every will has to be read as a whole, and meaning is to be gathered from the whole instrument, and
not by a disjointed reading of the various clauses. This means that the true intention of the testator has to be
gathered, not from isolated expressions in the will, but by reading the will as a whole.

Illus.— (i) The testator gives to B, a specific fund or property at the death of A, and by a subsequent clause, gives
the whole of his property to A. The effect of the several clauses taken together is to vest the specific fund or property
in A for life, and after his decease in B. it appearing from the bequest to B that the testator meant to use in a
restricted sense, the words in which he describes what he gives to A.

(ii) Where a testator having an estate, one part of which is called Black Acre, bequeaths the whole of his estate to A.
and in another part of his will bequeaths Black Acre to B, the latter bequest is to be read as an exception out of the
first as if he had said. ’I give Black Acre to B, and the rest of my estate to N’

(b) Where a clause is susceptible of two meanings. one having effect and the other none, the former is to be
preferred (S 84) But no part of the will is to be rejected if a reasonable construction can be put upon it. (S. 85)

Thus, an attempt should always be made to reconcile the apparent inconsistencies and contradictions in a will.
However, if that is not possible, the general intention of the testator should be given effect to, even if it involves the
rejection or transposition of a particular superfluous, or even misplaced, word.

(c) Where two clauses of gifts in a will are irreconciliable, so that they cannot possibly stand together, it is the last
clause which prevails. (S. 88)

Illus.— (i) The testator, by the first clause of his will, leaves his estate of Ramnagar ”to A,” and by the last clause of
his will leaves it ”to B. and not to A ”. The estate will go to B.

(ii) If a man at the commencement of his will, gives his house to A, and at the close of it. directs that his house shall
be sold and the proceeds invested for the benefit of B, the latter disposition will prevail
PROBLEM — A was an old man, having a wife B, and four sons C. D. E and F as well as two married daughters. A
(who was not a lawyer) made a will, wherein he stated that his wife B and his three sons C, D and E were obedient
and served him well. However, F was disobedient and often used filthy language against A and B. The two daughters
were prospering well and A had already given a lot to them In the first part of the will, A gave an apparently absolute
title to his wife. B, to both his movable arid immovable property. However, in the second part of the will, he gave an
absolute property to his three sons, C. D and E after the death of his wife, B. How will A’s property devolve ?

Ans.– This question was considered by the Court in Raghbir Singh v Budh Singh (Al R 1978 Delhi 86), where the
Court held that the will conferred an absolute estate on the widow only in respect of movables. It conveyed only a
life interest on her in respect of the immovable property. The will also conferred an absolute right on C. and E to the
testator’s immovable property after the death of the widow, B. The Court observed as follows

”Under the circumtances. the Court can cut down an absolute interest to a life-interest, to give effect to the whole
of the will and to respect the real intention of the testator.”

6. RULES FOR CONSTRUING BEQUESTS (Ss. 90-98)

The following are the nine rules of construction relating to bequest to heirs and representatives of the testator.

1. Words describing the property to be bequeathed are deemed to refer to property answering that description at the
testator’s death. (S. 90)

It is to be remembered that a will speaks from the date of the death of the testator, and not from the date of its
execution. Therefore, a mere recital in the will of the existing property does not exclude future accretions to the
property of the testator, which may take place after the date of the will.

Thus, in one case, a testator bequeathed ”the piece of land and effects known as ”Cross Villa”, which at the time of
the will, was just a vacant plot of land. Subsequently, the testator erected buildings thereon. It was held that the plot
of land, together with the buildings subsequently erected thereon, would pass under the will (Evans v. Powell, 1909
1 Ch. 784)

Considering the scope of S. 90 of the Act, the Madhya Pradesh High Court has observed that in view of this section,
the property existing at the time of the testator’s death and falling within the description of the property bequeathed
in the will would pass under it, although it was not in existence at the time when the will was executed, the reason
being that the will has the same effect as if it was executed at the time of the testator’s death. (Rambati v. Mst.
Bhundkuwar, A.I.R. 1978 N.O.C. 268 M.P)

(A reference may also be made to the case, In Re Gilliness Inglis, discussed earlier in this Chapter under the heading
”Construction of words”.)

2. A bequest of the estate includes property which the testator may have power to appoint by will to any object he
may think proper. (S. 91)

In other words, a testator may include in his will, not only his own property, but also property over which he has a
general power of appointment. (As to what is ”power of appointment” has been discussed earlier in this Chapter.)

3. Where a power of appointment is given in a will by the testator for the benefit of certain objects and in certain
proportion, and such power is not exercised, the objects of the power will yet the gift in equal shares. (S. 92)
Illustration.- A, by his will, bequeaths a fund to his wife, for her life, and directs that at her death it shall be divided
among his children in such proportion as she shall appoint. The widow dies without having made any appointment.
The fund will be divided equally among the children.

4. Where a bequest is made to the ’heirs’ or ’right heirs’, or ’relations’ or ’nearest relations’, or ’family’, or
’kindred’ or ’nearest of kin’ or ’next of kin’of a particular person, without any qualifying terms, and the class so
designated forms the direct and independent object of the bequest, the property bequeathed is to be distributed as if
it hacP belonged to such person, and he had died intestate in respect of it, leaving assets for the payment of his debts
independently of such property. (S. 93)

Illustrations.- (i) A leaves his property ”to my own nearest relations’. The property goes to those who would be
entitled to it if A had died intestate, leaving assets for the payment of his debts independently of such property.
(ii) A bequeaths Rs. 10,000 ”to B for his life, and after the death of B, to my own right heirs.” The legacy, after B’s
death, belongs to those who would be entitled to it as if it had formed part of A’s unbequeathed property.

(iii) A leaves his property to El, but if B dies before him, to B’s next-of-kin: B dies before A; the property devolves
as if it had belonged to B. and he had died intestate, leaving assets for the payment of his debts independently of
such property.

(iv) A leaves Rs. 10,000 ”to B for his life, and after his death to the heirs of C. The legacy goes as if it had belonged
to C, and he had died intestate, leaving assets for the payment of his debts independently of the legacy.

5. Where a bequest is made to the ’representatives’ or legal representatives’ or personal representatives’ or

’executors’ or ’administrators’ of a particular person, and the class so designated forms the direct and independent
object of the bequest, —the Property bequeathed is to be distributed as if it had belonged to such person and he had
died intestate in respect of it. (S. 94)

Illustration.— A bequest is made to the ’legal representatives’ of A. A has died intestate and insolvent. B is his
administrator. B is entitled to receive the legacy, and will apply it in the first place to the discharge of such part of
A’s debts as may remain unpaid; if there be any surplus. B will pay it to those persons who at A’s death would have
been entitled to receive any property of A’s which might remain after payment of his debts, or to the representatives
of such persons.

8. Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it
appears from the will that only a restricted interest was intended for him. (S. 95)

7. Where property is bequeathed with a bequest in the alternative to another person then, the first named legatee is
entitled to the legacy if he is alive at the time when it takes effect; but if he is then dead, the person named in the
second branch of the alternative will take the legacy. (S. 96)

Illustrations.— (i) A bequest is made to A or to B. A survives the testator. B takes nothing.

(ii) A bequest is made to A or to B. A dies after the date of the will, and before the testator. The legacy goes to B.

(iii) A bequest is made to A or to B. A is dead at the date of the will. The legacy goes to B.

(iv) Property is bequeathed to A or his heirs. A survives the testator. A takes the property absolutely.

(v) Property is bequeathed to A or his nearest of kin. A dies in the lifetime of the testator. Upon the death of the
testator, the bequest to A’s nearest of kin takes effect.

(vi) Property is bequeathed to A for life, and after his death to B or his heirs. A and B survive the testator. B dies in
A’s lifetime. Upon A’s death, the bequest to the heirs of B lakes effect.

(vii) Property is bequeathed to A for life, and after his death to B or his heirs. B dies in the testator’s lifetime. A
survives the testator. Upon A’s death, the bequest to heirs of B takes effect.

Problem.- A bequest is made to ”M or N’. Both M and N survive the testator. Who will take the legacy ? In case M
dies before the testator, leaving only a son, will the legacy go to Ms son or to N ?

Ans.— In the first case, M will get the legacy, as he is the first named legatee. In case M dies before the testator, the
legacy goes to N, and not to Ms son.

8. Where property is bequeathed and words are added which describe a class of persons, but do not denote them as
direct objects of a distinct gift, such person is entitled to the whole interest of the testator therein, unless a contrary
intention appears by the will. (S. 97)

Illustration.- (i) A bequest is made— to A and his children, to A and his children by the present wife, to A and
the heirs, to A and the heirs of his body, to A and the heirs male of his body, to A and the heirs
female of his body, to A and his issue, to A and his family, to A and his descendants. to A and his
representatives, to A and his personal representatives, to A and his executors and administrators. In each of
these cases, A takes the whole interest which the testator had in the property.

(ii) A bequest is made to A and his brothers A and his brothers are jointly entitled to the legacy.

(iii) A bequest is made to A for life and alter his death to his issue. At the death of A, the property belongs in equal
shares to all persons who then answer the description of issue of A.

9. Where a bequest is to a class of persons under a general description, only those to whom the description applies
are entitled to take the legacy. (S. 98)

7. CUMULATIVE OR NON—CUMULATIVE BEQUESTS (S. 101)

S. 101 deals with what are known as cumulative bequests. It deals with cases where the testator has twice
bequeathed a legacy to the same person In such cases, a question arises as to whether the legatee is entitled to both
legacies, or only to one of them, Le., whether the second legacy is to be regarded as merely a repetition of the prior
bequest, or is to be construed as an additional bounty and cumulative to the former benefit

On this point, the intention of the testator is to be given effect to, - failing which the following rules (laid down in S.
101) are to be applied-

Where a will purports to make two bequests to the same person, and a question arises whether the testator intended
to make the second bequest instead of, or in addition to, the first, if there is nothing in the will to show what he
intended, the following rules will determine the construction to be put upon the will :

(a) The legatee takes only one bequest-

(1) If the same specific thing is given twice to the same legatee in—

(i) in the same will, or

(ii) in a will and again in a codicil

(2) If the same will or codicil makes in two places, a bequest to the same person of the same quantity or amount of
anything.

Illus.— (i) A, having ten shares, and no more, in the Bank of India, made his will which contains, near its
commencement, the words “I bequeath my ten shares in the Bank of India to B.” After other bequests, the will
concludes with the words ’and I bequeath my ten shares in the Bank of India to B.’ B is entitled simply to receive A’s
ten shares in the Bank of India.
(ii) A, having one diamond ring, which was given to him by B, bequeaths to C a diamond ring which was given by
B. A afterwards made a codicil to his will, and thereby after giving other legacies, he bequeathed to C, the diamond
ring which was given to him by B. C can claim nothing except the diamond ring which was given to A by B.

(iii) A. by his will bequeaths to B the sum of Rs. 5,000, and afterwards in the same will repeats the bequest in the
same words. B is entitled to one legacy of Rs. 5,000 only.

(b) But the legatee takes both legacies —

(1) If two legacies of unequal amounts are given to the same person —

(i) in the same will, or (ii) in the same codicil;

Or

(2) If two legacies of equal or unequal amount are given to the same legatee,—

(i) one by a will and the other by a codicil, or (ii) each by a different codicil

Illus.- (i) A, by his will, bequeaths to B, the sum of Rs. 5,000, and afterwards in the same will, bequeaths to B, the
sum of Rs. 6,000. B is entitled to receive Rs. 11,000.

(ii) A, by his will, bequeaths to B Rs. 5,000 and by a codicil to the will, he bequeaths to him Rs. 5,000. B is entitled
to receive Rs. 10,000.

(iii) A, by one codicil to his will, bequeaths to B. Rs. 5,000 and by another codicil, bequeaths to him Rs. 6,000. B is
entitled to receive Rs. 11,000.

(iv) A, by his will, bequeaths ”Rs. 500 to B because she was my nurse” and in another part of the will bequeaths As
500 to B ”because she went to England with my children.” B is entitled to receive Rs. 1,000.

(v) A, by his will, bequeaths to B the sum of Rs. 5,000 and also, in another part of the will, an annuity of As 400 B is
entitled to both legacies.

(vi) A, by his will, bequeaths to B, the sum of Rs.5,000 and also bequeaths to him the sum of Rs. 5,000 if he shall
attain the age of 18. B is entitled absolutely to one sum of Rs. 5,000 arid takes a contingent interest in another sum
of Rs. 5,000.

Summary of S. 101

1. If the same specific thing (e.g., a particular house or a particular car) is bequeathed twice to the same legatee in
the same will or in the will and again in a codicil, the legatee will get only that specific thing.

2. Where two legacies of equal amounts are bequeathed to the same legatee in one and same instrument, the second
bequest is to be regarded as a mere repetition, and the legatee is entitled to one such legacy.

3_ Where two legacies of unequal amounts are given to the same person in the same instrument (i.e. the same will or
the same codicil). the legatee is entitled to both.
4. Where two legacies, whether of equal or unequal amount, are given to the same person by different instruments,
i.e., one by will and other by a codicil, or each by a different codicil, the legatee is entitled to both.

H. VOID WILLS (Ss. 59, 61, 66 & 89)

A will is void if it is made under the circumstances mentioned in ss. 59, 61, 66 & 89. Thus, the following four kinds
of will are void :

1. Will by minor, lunatic, etc. (S. 59)

A will is void if made by (a) a minor, (b) a person of unsound mind, or (c) a deaf, dumb or blind person who does
not know what he is doing by it.

In law, capacity to make a will is known as ’testaments factio”.

Illus.— (i) A can perceive what is going on in his immediate neighbourhood, and can answer familiar questions, but
has not a competent understanding as to the nature of his property, or the persons who are of kindred to him or in
whose favour it would be proper that he should make his will. A cannot make a valid will.

(ii) A executes an instrument purporting to be his will, but he does not understand the nature of the instrument, nor
the effect of its provisions This instrument is not a valid will.

(iii) A. being feeble and debilitated, but capable of exercising a judgment as to the proper mode of disposing of his
property, makes a will This is a valid will

2. Will caused by fraud, coercion, etc. (S. 61)

Likewise, a will is void if it is caused by fraud, coercion or by such importunity as lakes away the free agency of the
testator

Illus.— (i) A. falsely and knowingly represents to the testator that the testator’s only child is dead, or that he has
done some undutiful act, and thereby induces the testator to make a will in his (A’s) favour; Such will has been
obtained by fraud, and is invalid

(ii) A, by fraud and deception, prevails upon the testator to bequeath a legacy to him The bequest is void.

(iii) A. being a prisoner by lawful authority, makes his will. The will is not invalid by reason of the imprisonment.

(iv) A threatens to shoot B, or to burn his house, or to cause him to be arrested on a criminal charge, unless he
makes a bequest in favour of C. B, in consequence, makes a bequest in favour of C. The bequest is void, the
making of it having been caused by coercion.

(v) A, being of sufficient intellect, if undisturbed by the influence of others to make a will, yet, being so much under
the control of B that he is not a free agent, makes a will dictated by B. It appears that he would not have executed
the will but for fear of B. The will is invalid.

(vi) A, being in so feeble a state of health, as to be unable to resist importunity, is pressed by B to make a will of a
certain purport and does so merely to purchase peace and in submission to B. The will is invalid.
(vii) A, being in such a state of health, as to be capable of exercising his own judgment and volition, B uses urgent
intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence of the
intercession and persuasion, but in the free exercise of his judgment and volition, makes his will in the manner
recommended by B. The will is not rendered invalid by the intercession and persuasion of B.

(viii) A, with a view to obtaining legacy from 8, pays him attention and flatters him and thereby produces in him a
capricious partiality to A. B, in consequence of such attention and flattery, makes his will, by which he leaves a
legacy to A. The bequest is not rendered invalid by the attention and flattery of A.

SCOPE OF S. 61.— As a will is one of the most solemn of all legal documents, whereunder a dead person entrusts
the carrying out of his wishes to the living, it becomes absolutely imperative that such a document should have been
the result of his free volition Therefore, S. 61 declares as void any will prompted by any factor (such as fraud or
coercion) which takes away the free agency of the testator.

An interesting question sometimes arises when certain portions of a will are proved to have been written by the
testator due to the fraud of another person. In such cases, is the entire will invalid? The answer is that if such a
portion can be separated from the rest of the will, the entire will is not void. Thus, it has been held that if certain
clauses of a will were written due to coercion, such clauses were invalid, but the rest of the will stood as a valid
document. (Allen v. Mapherson, (1845) 1 H. C. C. 191 )

In Parbati v. Sheo Bali (A. I. R. 1926 Oudh 262). a testator was persuaded to deprive his wife of any share in his
property on a misrepresentation made by his nephew that his wife was unfaithful, unchaste and did not care for him.
As a result, the testator made a will bequeathing all his property to the nephew. The Court held that the will was
invalid.

WILL MADE UNDER MISTAKE.— Though, there is no provision in the Act for a will made under mistake, it has
been held in England that such will is also void. ( Re. The Estate of Fanny Deborah, (1890), Probate 353)

3. Oral privileged will (S. 66(h))

If, after making a privileged will by word of mouth, the testator lives for more than one month, after the testator has
ceased to be entitled to make a privileged will, such oral privileged will becomes void.

4. Uncertain will (S. 89)

A will is void also if it is uncertain, i. e., not expressive of any definite intention of the testator.

illus.— If a testator says, ”I bequeath goods to A” or ”I bequeath to A: or ”I leave to A all the goods mentioned in the
Schedule” and no Schedule is found, or ”I bequeath ’money’, ’wheat’, ’oil or the like’ without saying how much,
this is void.

Under this section, a bequest may be void either because the objects are uncertain, or because the subject-matter of
the bequest is uncertain. Thus, a will which does not express any definite intention is void. So also, if there are two
inconsistent wills of the testator. bearing the same date, and there is no proof as to which one was executed later
(on that day), then both the wills may be regarded as void (in which case, the testator will be deemed to have died
intestate).

In one English case, the testator made a bequest to ”the past and present members of the staff of Midland Bank”.
The Court held that this clause was not void for uncertainty. (In Re Taylor, (1940) WN 158)

The general approach of the Courts is to try and save the will, if possible. For this purpose, the Courts have gone a
long way in granting indulgence to the ignorance, unskilfulness, and negligence of the testator, in order to give
maximum effect to his last wishes contained in the will However, this cannot be stretched too far, for the Court will
not supply what the testator has himself failed to indicate. If there is such uncertainty that nothing can be done to
salvage the will, the Courts are indeed helpless, and will declare the will to be void.

Note - A void will should not be confused with a void bequest. (The difference between the two is explained later.)

I. RESIDUARY LEGATEE (Ss. 102 & 103)

Definition (S. 102)

A residuary legatee is one to whom the testator gives the surplus or residue f hi:, property after the legacies and
bequests are made.

How constituted (S. 102)

A residuary legatee is constituted by any words of the testator,
showing an intention that the person designated by him shall take the surplus or residue of his property.

Illustrations.— (i) A makes her will, consisting of several testamentary papers. in one of which are contained the
following words:— ”I think there will be something left, after all funeral expenses, etc., to give to B, now at school,
towards equipping him to any profession he may hereafter be appointed to.” B is constituted the residuary legatee.

(a) A makes his will with the following passage at the end of it:— ”I believe there will be found sufficient funds in
my banker’s hands to defray and discharge my debts, which I hereby desire B to do, and keep the residue for her
own use and pleasure.” B is constituted the residuary legatee.

(iii) A bequeaths all his property to B, except certain stocks and funds, which he bequeaths to C. B is the residuary
legatee.

It may be noted that no particular mode of expression or language is necessary to constitute a residuary legatee. It is
enough that the intention of the testator is plainly expressed in the will, that the surplus of his estate, after payment
of debts and legacies, is to go to a particular person.

Moreover, in order to constitute a person a residuary legatee, it is not necessary that there should be other legatees
also. (Haripada v. Gobinda, I.L.R. (1938) I Cal. 300)

Apart from the three statutory illustrations (given above) the following are further examples from cases where the
terms of the respective bequests have been held sufficient to constitute a residuary legatee :

(a) ”I give the rest and residue of my property and estate, of whatever kind and wheresoever situated, to my said son,
A, absolutely.”
(b) ’After these legacies and my doctor’s bills and funeral expenses are paid, I leave to my sister ”
(c) ”Should there be any surplus after the above expenditure

(d) ”After all these acts have been observed from the proceeds of the said property, if there be a surplus .... ”
(e) ”to P the rest of my property
(f) ”to A, the remainder of my estate

His rights (S. 103)

A residuary legatee is entitled to all property belonging to the testator at the time of his death, of which he has not
made any other testamentary disposition which is capable of taking effect.

Illustration.— A, by his will, bequeaths certain legacies of which one is void under section 118, and another lapses
by the death of the legatee. He bequeaths the residue of his property to B After the date of his will, A purchases
zamindari which belongs to him at the time of his death. B is entitled to the two legacies and the zamindari as part
of the residue.

It has been held that where a gift is made of the residue subject to particular gifts which fail, they will fall into the
residue, even though the failure does not arise from the contingency mentioned in the will (In Re Meredith’s Trusts,
3 Ch. D. 757)

Where a testatrix, by mistake, recited in a will that she had settled upon A. a particular property, which, in fact, was
still at her disposition, and the will contained a residuary bequest in favour of X. it was held that the property
mentioned in the recital passed under the residuary clause to X. (In Re. Bagot, (1893) 3 Ch. 348)

Thus, the residuary gift includes every lapsed legacy and every legacy which fails to take effect on any ground But
it the testator has shown some intention with regard to the excepted property which is inconsistent with its ever
falling into the residue, effect will be given to such an intention. (Blight v.Hartnall, 23 CL. D. 218)

Similarly, property which is the subject matter of a trust which is incapable of taking effect will prima facie fall into
the residue, unless the testator has sufficiently expressed an intention that the property is not to fall into the
residue.

The following are the lour rights of a residuary legatee :

(i) He is entitled to the surplus of the deceased’s property after payment of debts and other legacies.
(ii) He is entitled to prove the will if the testator has not appointed any executor, or if the executor is dead, or if he
renounces.
(iii) If a bequest given to him is contingent, he may, on giving security, get the amount of the whole residue
transferred to himself
(iv) A residuary legatee under a general residuary bequest is entitled to the produce of the residuary fund, except
when the legacy is contingent.

J. LAPSING OF LEGACIES (Ss. 105-111)

DOCTRINE OF LAPSE - The term ”lapse” is applied to the failure of a testamentary gift owing to the death of the
legatee before the death of the testator. either before or after the making of the will. In order to entitle the legatee to
his legacy, he must survive the testator; otherwise the legacy cannot take effect. The law does not require the
legatees of a will to be in existence at the date of the will. Thus, a legatee may not be born at the date of the will;
but, in order to get a bequest. he must be in existence when the testator dies.

Can in which legacy lapses (Ss. 105 & 107)

It the legatee does not survive the testator, the legacy cannot take effect; it lapses and forms part of the residue of the
testator’s property, unless the testator intended that it should go to some other person

Thus, if A bequeaths his house to X, and the residue of this property to r, if X is already dead when A dies, the house
will pass (under the residue clause) to Y

However, if in the same case, A had said that the house is to go to X if he is then alive, and if he is not, to B, the
house will go to B (and not to the residuary legatee Y ) if X has pre-deceased the testator.

So, in order to entitle the representative of the legatee to receive the legacy, it must be proved that the legatee
survived the testator.

Illustrations.— (i) The testator bequeaths to B, ”Rs. 5,000 which A owes me”. B dies before the testator; the legacy
lapses.

(ii) A bequest is made to A and his children. A dies before the testator or happens to be dead when the will is made.
The legacy to A and his children lapses.

(iii) A legacy is given to A, and, in case of his dying before the testator, to B. A dies before the testator. The legacy
goes to B.

(iv) A sum of money is bequeathed to A for life, and after his death to B. A dies in the lifetime of the testator. B
survives the testator. The bequest to B takes effect.

(v) A sum of money is bequeathed to A on his completing his eighteenth year, and in case he should die before he
completes his eighteenth year, to B. A completes his eighteenth year, and dies in the lifetime of the testator. The
legacy to A lapses, and the bequest to B does not take effect.

(vi) The testator and the legatee perished in the same ship-wreck. There is no evidence to show who died first. The
legacy lapses.

Effect of lapse.— If a legacy is given in words which show that the testator intended to give distinct shares of it,
then, if any legatee dies before the testator, so much of the legacy as was intended for him falls into the residue of
the testator’s property.

Illus.— A sum of money is bequeathed to A, B and C, to be equally divided among them. A dies before the testator B
and C will only take so much as they would have had if A had survived the testator.

In other words, unless a contrary intention appears in the will, a lapsed legacy will form part of the testator’s
property and is to be included in the residuary bequest. Where a share which lapses is a part of the general residue
which is bequeathed by the will, such share devolves as if it was not disposed of by the will.

Illustration.— The testator bequeaths the residue of his estate to A, B and C, to be equally divided between them A
dies before the testator. His one—third of the residue goes as undisposed of.

As seen above, a legacy that lapses will form part of the residue and will go to the residuary legatee However, when
the residue itself lapses by the death of the residuary legatee before the testator. or in any other manner, it will go as
on intestacy, and it will be divided amongst the next-of-kin of the deceased

Cases in which legacy will not lapse (Ss. 106, 108-111)

However, in the following five cases, a legacy will not lapse :

1. If a legacy is given to two persons jointly and one of them dies before the testator, the other legatee takes the
whole (S. 106)

Illus.— The legacy is simply to A and B A dies before the testator. Therefore, B takes the legacy.

2. Where a bequest is made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime
of the testator, but any lineal descendant of his survives the testator. the bequest does not lapse, but takes effect as if
the death of the legatee had taken place immediately after the death of the testator, unless a contrary intention
appears by the will. (S. 109)

Illus.— A makes his will, by which he bequeaths a sum of money to his son, B. for his own absolute use arid benefit.
B dies before A, leaving a son, C, who survives A, and having made his will whereby he bequeaths all his property to
his widow D. The money goes to D.

Problem.— A testator gave Rs. 5,000 to his son’s daughter J, who pre-deceased the testator, leaving behind a child,
B. 13 sues to recover the legacy. Will he succeed ?

Ans— In this case, B will succeed under S. 109, because a lineal descendant of J (i.e. B ) survived the testator. (Jitu
Lal v. Binda Bibi, 16 Cal. 649)

3. Where a bequest is made to one person for the benefit of another, the legacy does not lapse by the death of the
person to whom the bequest is made (S 110)

Thus, for instance, if under a will a bequest is made to A, with a specific direction that he holds the same in trust
for B, the bequest does not lapse because of A’s death, because in such a case, the real bequest is in favour of B.

4. Where a bequest is to a class of persons, some of whom are dead. It does not lapse. — but goes to those members
of the class who are alive at the testator’s death

So, if a bequest is made to all the children of X’, and some of Xs children are dead on the date of the testator’s death,
those children of X who are alive at the dat3 of the testator’s death will get the legacy

But, if property is bequeathed to a class of persons, described as standing in particular degree of kindred to a
specified individual, (as for instance, ’my children” or ”my grandchildren”), but their possession of it is deferred
until a time later than the death of the testator, by reason of a prior bequest or otherwise, the property shall, at that
time, go to such of them as are then alive, and to the representatives of any of them who have died since the death of
the testator. (S. 111)

Illus — (i) A bequeaths Rs. 1,000 to ”the children of Br, without saying when it is to be distributed among them. B
had died previous to the date of the will, leaving three children C, D and E. E died after the date of the will, but
before the death of A. C and D survive A. The legacy will belong to C arid 0 to the exclusion of the representatives
of E.

(ii) A lease for years of a house was bequeathed to A for his life, and after his decease, to the children of B At the
death of the testator, B had two children living. C and D, and he never had any other child. Afterwards, during the
lifetime of A, C died, leaving E, his executor. D has survived A D and E are jointly entitled to so much of the lease—
hold term as remains unexpired.

(iii) A sum of money was bequeathed to A for her life, and after her decease, to the children of B. At the death of the
testator, B had two children living C and D, and after that event, two children, E and F, were born to B. C and E
had died in the life-time of A, C having made a will, E having made no will. A has died, leaving D and F
surviving her, The legacy is to be divided into four equal parts, one of which is to be paid to the executor of C,
one to D. one to the administrator of E and one to F

(iv) A bequeaths one-third of his lands to B for his life, and after his decease, to the sisters of B. At the death of the
testator, B had two sisters living, C and D , and after that event another sister, E, was born. C died during the
lifetime of B. D and E have survived B. One—third of As lands belong to D, E and the representatives of C, in equal
shares.

(v) A bequeaths Rs. 1,000 to B for life and after his death equally among the children of C. Upto the death of B, C
had not had any child. The bequest after the death of B is void.

(vi) A bequeaths Rs. 1,000 ”to all the children born or to be born” of B, to be divided among them at the death of
C. At the death of the testator, B has two children living, 0 and E. After the death of the testator, but in the life-time
of C, two other children, F and G, are born to B. After the death of C, another child is born to B. The legacy befogs
to D, E, F and G, to the exclusion of the after-born child of B.

(vii) A bequeaths a fund to the children of B, to be divided among them when the eldest shall attain majority. At
the testator’s death, B had one child living named C. He afterwards had two other children, named D and E. E died
but C and D were living when C attained majority. The fund belongs to C, D and the representatives of E, to the
exclusion of any child who may be born to B after Cs attaining majority.

5. Lastly, if a charitable bequest contains a general charitable intention, the bequest does not lapse, but will be
applied cy-pres The doctrine of cy-pres enables the Court to direct an application which is as near as may be to the
charitable intention declared

However, if a bequest is made for a particular charitable institution, and that institution is non-existent when the
testator dies. the bequest will lapse, and will not be applied cy-pres.

An exception to this rule is contained in the Bombay Public Trusts Act, under which such a trust is not to be
deemed to be void only on the ground that the society or institution (for the benefit of which a public trust is created)
does not exist or has ceased to exist.

K. VOID BEQUESTS (Ss. 67, 89, 112-118, 126 81 127)

Difference between a void will and a void bequest

At the very outset, it is important to distinguish between a void bequest and a void wilt When a will is void (as for
instance, when it is made by a person of unsound mind), the entire will is inoperative and without effect, as if it was
not made at all No clause or part of the will is of any effect. However, at times, a will as a whole may be relating to
void perfectly valid, although there are certain clauses in the will which cannot have any legal effect. For example,
the testator is not allowed to make a bequest to an attesting witness. If he does so, the entire will does not become
void; only that particular clause will be void and of no effect; the rest of the will remains valid

The following 11 kinds of bequests are void :

1. Bequest to an attesting witness (S. 67)

A gift or bequest made to a person who has attested the testator’s will is void. Likewise, a gift or bequest is also void
if made to the husband or the wile of, the person who has attested the will.

However, a legatee under a will does not lose his legacy by attesting a codicil which confirms the will.

Since a will is a solemn document whereby a dead person guides the hands of the living, the law insists that it
should be free from all possible suspicions. The Act, therefore, declares that any bequest to an attesting witness, or
to his wife, or her husband, will be void and of no effect In other words, the law does not favour the attestation of a
will by an interested witness. Such attestation does not invalidate the will itself; the will continues to be a valid will,
but the witness (or the spouse of such a witness) will not get the legacy given to him (or her) under the will.

Thus, in one case, the testator made a will which was attested by A and B A legacy of Rs. 1,000 was given under the
will to A’s wife, and another legacy of Rs. 1,000 to B’s son. The Court held that the wit was valid. However, the
legacy to A’s wife could not be given effect to, as it was void. The legacy to B’s son was however, valid (Moore v
Turner, A.I.R. 1937, Lah. 292)

Problems

1. A, by his will, gives a legacy of Rs. 2,000 to B, who is one of the attesting witnesses to A’s will. Are the legacy
and the will valid?

Ans- The will is valid, but B is not entitled to receive Rs. 2,000.

2. A executes a will which is attested by B and C. A legacy of Rs. 2,000 is beqeathed to a who is Bs wife, and
another of Rs. 3,000 of E, who is Cs son. Are the will and the two legacies valid? –

Ans.- The will is valid. The legacy to E is also valid. However, the legacy to 0 is void. (See Moore v. Turner, above.)

3. X executes a will which is attested by Y and Z. A legacy of Rs. 1,000 is bequeathed to V. Later, Y dies without
receiving the legacy, leaving A as his heir. Can A claim the legacy ?

Ans.- As a legacy to an attesting witness is void, Y would not be entitled to it and consequently, after his death, A
also would not be entitled to the legacy.

4. X left a will, giving a legacy to Y, who is an attesting witness. X afterwards executed a codicil, confirming the
legacy to Y to which codicil Y was not an attesting witness. Is Y entitled to the legacy ?

Ans.- Y is entitled to the legacy by virtue of the codicil.

5. A leaves a will, giving a legacy to B. The will is attested by C and D. Subsequently, A executes a codicil
confirming the will, and this codicil is attested by B and C. Is B entitled to the legacy?

Ans.- By attesting the codicil, B does not lose his legacy.

6. By his will, A gives Rs. 2,000 to B. The will is attested by C and a Later, B marries C. Is the legacy of Rs.
2,000 to B void?
Ans.— The legacy to B is not void. It is a valid bequest, because marriage after the attestation does not affect a
legacy. When executed, the will was not attested by the spouse of a legatee.

2. Uncertain bequest (S. 89)

A will or bequest not expressive of any definite intention is void for uncertainty

Illus.— If a testator says 1 bequeath goods to A” or ”I bequeath to A” or 1 leave to A all the goods mentioned in the
Schedule” and no Schedule is found, or ”I bequeath ’money’, ’wheat’, ’oil’, or like without saying how much, this is
void.

A reference may be made to In Re Taylor (discussed earlier), where a bequest to ”the past and present members of
the staff of ”Midland Bank” was held not to be void for uncertainty

3. Bequest to a non-existing person (S. 112)

Where a bequest is made to a person by a particular description, and there is no person in existence at the time of
the testator’s death who answers the description, the bequest is void

However, if property is bequeathed to a person described as standing in a particular degree of kindred to a

specified individual, but his possession of that thing is deferred until a time later than the death of the testator, by
reason of a prior bequest or otherwise, and if a person, answering that description is alive at the death of the
testator, or comes into existence between that event and such later time, the property will go, at such later time, to
that person, or if he is dead, to his representatives.

In other words, S. 112 declares bequest to be void, if made to persons who are not in existence at the testator’s
death. In order to entitle an unborn person to take, he must come into existence when the bequest becomes payable.
If he has once been born. it is immaterial whether he is alive or dead at the termination of the prior bequest His
representatives will get the property in such a case. (See illus (ii) and (v) below.]

Illus.— (i) A bequeaths Rs. 1,000 to the eldest son of B At the death of the testator, B has no son. The bequest is
void.

(ii) A bequeaths Rs. 1,000 to B for life, and after his death to the elder son of C. At the death of the testator, C had no
son. Afterwards during the life of B, a son is born to C. Upon Bs death, the legacy goes to Cs son.

(iii) A bequeaths Rs. 1,000 to B for life and after his death to the eldest son of C. At the death of the testator, C had
no son. Afterwards, during the life of B, a son, named D, is born to C D dies; then B dies. The legacy goes to the
representatives of D.

(iv) A bequeaths his estate of Green Acre to B for life, and at his decease, to the eldest son of C. Upto the death of
B, C has had no son. The bequest to Cs eldest son is void.

(v) A bequeaths Rs. 1,000 to the eldest son of C, to be paid to him after the death of a At the death of the testator, C
has no son but a son is afterwards born to him during the life of B, and is ewe at B’s death. C’s son is entitled to Rs.
1,000.

4. Bequest to person not in existence at testator’s death (S. 113)

Where a bequest is made to a person who is not in existence at the time of the testator’s death, subject to a prior
bequest, the later bequest is void, unless it comprises the whole of the remaining interest of the testator in the thing
which is bequeathed. (S. 113)

Under this section. an unborn person cannot be given a !desolate; he must be given an absolute estate.

Illus.- (i) Property is bequeathed to A for his life, and after his death to his eldest son for life, and after the death of
the latter, to his eldest son. At the time of the testator’s death, A has no son. Here, the bequest to As eldest son is a
bequest to a person not in existence at the testator’s death. It is not a bequest of the whole interest that remains to
the testator. The bequest to A’s eldest son for his fife is void.

(ii) A fund is bequeathed to A for his life and after his death to his daughters. A survives the testator. A has daughters
some of whom were not in existence at the testator’s death. The bequest to A’s daughters comprises the whole
interest that remains to the testator in the thing bequeathed. The bequest to A’s daughters is valid.

(iii) A fund is bequeathed to A for his life, and after his death to his daughters. with a direction that, if any of them
marries under the age of eighteen, her portion shall be settled so that it may belong to herself for life and may be
divisible among her children after her death. A has no daughters living at the time of testator’s death, but has
daughters born afterwards who survive him. Here, the direction for a settlement has the effect, in the case of each
daughter who marries under eighteen, of substituting for the absolute bequest to her a bequest to her merely for her
life, that is to say, a bequest to a person not in existence at the time of the testator’s death of something which is less
than the whole interest that remains to the testator in the thing bequeathed. The direction to settle the fund is void.

(iv) A bequeaths a sum of money to B for life, and directs that upon the death of B, the fund shall be settled upon his
daughters, so that the portion of each daughter may belong to herself for life and may be divided among her
children after her death. B has no daughter living at the time of the testator’s death. In this case, the only bequest to
the daughters of B is contained in the direction to settle the fund and this direction amounts to a bequest to persons
not yet born, of a life-interest in the fund, that is to say, of something which is less than the whole interest that
remains to the testator in the thing bequeathed. The direction to settle the fund upon the daughters of B is void.

SCOPE OF S. 113. — The effect of this section is that an estate for life can be given to any number of living
persons one after the other, but if it has to be given to an unborn person, i.e. a person who is not in existence at the
date of the testators death— subject to a prior bequest, it must comprise the whole of the remaining interest of the
testator therein; it cannot be for life only; else the bequest will be void. To put it in a nutshell, if only a life-interest
is given to an unborn person, the bequest is void

Therefore, if under a bequest made subject to a prior bequest, there is a possibility of the interest given to the
beneficiary being defeated for any reason, the beneficiary under the later bequest does not receive the interest
bequeathed in the same unlettered form as that in which the testator held it, and the bequest to him does not,
therefore, comprise the whole of the remaining interest of the testator in the thing bequeathed. Consequently, such a
bequest is void under S. 113, if the beneficiary is not in existence at the time of the testator’s death - Sopher v.
Administrator General of Bengal, 71 I.A.93; 48 C.W.N. 585; AIR. 1944 P.C. 67.

5. Bequest infringing the rule against perpetuity (S. 110)

S. 114 then deals with bequests which infringe the rule against perpetuity. Perpetuity has been defined as the
creation of an inalienable and indestructible interest”. In the secondary or artificial sense, it denotes an interest
which will not vest till a remote period
The law does not favour a very long delay in the vesting of property after a testator’s death, and therefore, prescribes
a maximum period during which the property can be kept in abeyance Any bequest wherein it is possible that the
ultimate vesting of the legacy could take place beyond such period is, therefore, declared to be void.

The rule against perpetuity lays down that no bequest is valid, if the vesting of the thing bequeathed may be delayed
beyond the lifetime of one or more persons living at the testator’s death, and the minority of some person who must
be in existence at the expiry of that period, and to whom, if he attains full age, the thing bequeathed is to belong.

It is to be noted that this section deals with a possibility — and not with what actually happens in a given case. In
other words, the rule comes into play, not only in those cases where the delay in vesting of the property has actually
gone beyond the limits prescribed by S 114, but also in those cases where it is possible that the vesting may be so
delayed.

Illus.— (i) A fund is bequeathed to A for his life, and after his death to B for his life, and after Us death, to such of
the sons of B as shall first attain the age of 25. A and B survive the testator Here, the son of B who shall first attain
the age of 25 may be a son born after the death of the testator; such son may not attain 25 until more than 18 years
have elapsed from the death of the longer liver of A and B; and the vesting of the fund may thus be delayed beyond
the lifetime of A and B and the minority of the sons of B. The bequest after Bs death is void

(ii) A fund is bequeathed to A for his life, and after his death to B for his life, and alter B’s death to such of B’s sons
as shall first attain the age of 25. B dies in the lifetime of the testator, leaving one or more sons In this case, the sons
of B are persons living at the time of the testator’s decease, and the time when either of them will attain 25
necessarily falls within his own lifetime. The bequest is valid.

(iii) A fund is bequeathed to A for his life, and after his death to B for his life, with a direction that after Bs death it
shall be divided amongst such of Bs children as shall attain the age of 18, but that, if no child of B shall attain that
age, the fund shall go to C. Here, the time for division of the fund must arrive at the latest at the expiration of 18
years from the death of B, a person living at the testator’s decease All the bequests are valid

(iv) A fund is bequeathed to trustees for the benefit of the testator’s daughters, with a direction that, if any of them
marry underage, her share of the fund shall be settled so as to devolve after her death upon such of her children as
shall attain the age of 18. Any daughter of the testator to whom the direction applies must be in existence at his
decease, and any portion of the fund which may eventually be settled as directed must vest not later than 18 years
from the death of the daughters whose share it was. All these provisions are valid

RULE EXPLAINED.— What this rule lays down is that it is open to a testator to postpone the vesting of estates to a
number of living persons. However, he cannot postpone it in perpetuity, i.e., beyond the lifetime of a person in
existence at the testator’s death and the minority of some other person who is not in existence then, but is born
before the death of the last of the persons to whom a life-estate is given, and to whom if he attains full age, the thing
bequeathed is to belong.

So a person can say ”I give to A for life; after his death, to B for life; after Bs death, to C for life; after Cs death, to D
for life” and so on. This way he can go on giving to as many living persons for their lives, as he wants. But if he
bequeaths the property, after all the life-tenants, to an unborn person, then the last bequest to the unborn person
must be given to the unborn during his minority i.e., during 18 years. So a person can say,”I give to A for life; after
A’s death to B for life, and then to a son of B when he attains 17”; but if he says that the son of B is to get the
bequest when he becomes 19, Le., after attaining majority, the bequest would be void.
Thus, in one case, the testator directed his executors to perform certain religious ceremonies out of the income of his
property, and further directed that his sons, grandsons and all lineal descendents should be given the income of the
property, although the corpus should remain intact. The Privy Council held that this was a clear case of an
infringement of the rule against perpetuity. (Shookmoy v. Monobarri. I.L.R. 11 Cal. 684)

The rule against perpetuity has been enacted for the free and active circulation of property, both for the purpose of
commerce and the improvement of land, and is founded upon considerations of public policy, to prevent the
mischief of making property inalienable. The necessity of imposing some restraint on the power of postponing the
acquisition of absolute interest in or dominion over property becomes obvious if one considers, for a moment, what
would be the state of a community in which a considerable portion of the land and capital was locked up.

Difference between English and Indian law as to perpetuity -

The English law of perpetuity is different from the Indian law. Under the English law, the vesting of property can be
postponed for any number of lives in being, and an additional term of 21 years afterwards (and for as many
months in addition as are equal to the ordinary period of gestation, should gestation exist.) Moreover, the additional
term of 21 years is to be reckoned independently of the minority of any person to be entitled.

In India, s. 114 allows the vesting to be delayed, beyond the lifetime of one or more persons in being, for the period
only of the minority of some person in existence at the end of that period The addition of an absolute period (of 21
years in England) has not been adopted by the section.

The following are, therefore, the essential points of difference between the English and the Indian law about
perpetuity

1. Under the English law, the additional period allowed after lives in being is a term of 21 years in gross, without
reference to the infancy of any person; under the Indian Act, the term is the period of minority of the person to
whom, if he attains full age. the thing bequeathed is to belong,

2. Under S. 114, the additional period allowed after lives in being is not only dependent upon minority, but it is
allowed only for the benefit of the infant who takes.

6. Bequest void under Ss. 113 and 114 (S. 115)

S. 115 clarifies that a bequest to a class of persons with regard to some of whom it is inoperative by reason of ss. 113
and 114 is void in regard to those persons only, and not as regards the whole class.

Illus.— (i) A fund is bequeathed to A for his life, and after his death to his children who shall attain the age of 25. A
survives the testator, and has some children living at the testator’s death. Each child of A living at the testator’s death
must attain the age of 25 (if at all) within the time-limit allowed for a bequest But A may have children after the
testator’s decease, some of whom may not attain the age of 25 until more than 18 years have elapsed after the
decease of A The bequest to As children, therefore, is inoperative as to any child born after the testator’s death, and
in regard to those who do not attain the age of 25 within 18 years after A’s death, — but is operative in regard to the
other children of A.

(ii) A fund is bequeathed to A for his life, and after his death, to B, C. D and all other children of A, who shall attain
the age of 25. B, C. D, are children of A living at the testator’s decease. In all other respects the case is the same as
that supposed in Illus.(i). Although the mention of B, C and D does not prevent the bequest from being regarded as a
bequest to a class, it is not wholly void. It is operative as regards any of the children B, C or D, who attains the age
of 25 within 18 years after A’s death.

7. Bequest upon prior void bequest (S. 116)

Where by reason of any of the rules contained in sections 113 and 114, any bequest in favour of a person is void in
regard to such person, any bequest contained in the same will and intended to take effect after or upon failure of
such prior bequest is also void (s. 116)

Illus.— (i) A fund is bequeathed to A for his life, and after his death to such of his son as shall first attain the age of
25, for his life, and after the decease of such son to B A and B survive the testator. The bequest to B is intended to
take effect after the bequest to such of the sons of A as shall first attain the age of 25, which bequest is void under
section 114. The bequest to B is also void.

(ii) A fund is bequeathed to A for his life, and after his death to such of the sons as shall first attain the age of 25, and
if no son of A shall attain that age, to B. A and B survive the testator. The bequest to B is intended to take effect upon
the failure of the bequest to such of A’s sons as shall first attain the age of 25, which bequest is void under section
114 The bequest to B is also void.

The rule embodied in this section is a rule of English Law that a limitation following upon a limitation void for
remoteness, is itself void. even though it may not itself transgress the rule against perpetuity.

8. Bequest with a direction for accumulation (S. 117)

If a direction is given by a testator to accumulate the income arising from the property which is bequeathed, for a
period longer than 18 years from the death of the testator, such a direction is void to the extent to which the period
during which the accumulation is directed exceeds such period. In such cases, at the end of such period of eighteen
years, the property and its income is to be disposed of as if the period during which accumlation was directed had
elapsed.

Thus, what is laid down is that accumulation of income is allowed provided that it does not extend beyond a period
of eighteen years from the death of the testator. So, a direction in a will to accumulate it, say, for 20 years after the
testator’s death, is not altogether void. The direction will be valid for 18 years and void for the remaining 2 years. At
the end of the period of 18 years, the property, as well as the income thereof, will be payable as per the testator’s
directions in the will (as if the 20-years period had elapsed).

Exceptions: This rule, is however subject to three exceptions, and in the following cases, directions for the
accumulation of income beyond 18 years are valid, viz.:

1. A direction for accumulation for payment of the testator’s debts (or the debts of any other person taking any
interest under the will.)

2. Provision of portions for children or remoter issues of the testator, or any other person taking any interest under
the will.

3. Preservation or maintenance of any property which is bequeathed.

9. Bequest to religious or charitable uses in certain cases (S. 118) (Declared unconstitutional by the Supreme
Court of India)
No person having a nephew, niece or near relative can bequeath any property to religious or charitable uses, except
by a will, which is —

(i) executed not less than 12 months before his death: and
(ii) deposited in some place provided by law for safe custody within 6 months of its execution.

illus.— A, having a nephew, makes a bequest by a will, not executed and deposited as required—

for the relief of poor people;

for the maintenance of sick soldiers;
for the erection or support of a hospital;
for the education and preferment of orphans;
for the support of scholars;
for the erection or support of a school;
for the building and repairs of a bridge;
for the making of roads;
for the erection or support of a church;
for the repairs of a church;
for the benefit of ministers of religion;
for the formation or support of a public garden.
All these bequests are void.

The provisions of this section can be illustrated with a simple example. Mr. X, whose nephew or niece is alive at the
date of his death, makes a will on 4m January, 2009, wherein he makes a bequest in favour of hospital. As per the
provisions of S. 118, he must deposit this will within a period of six months. If, for any reason, he does not, the
bequest becomes void. Furthermore, X’s death must take place on or after 4th January, 2010, over which, of course,
he has no control whatsoever. If he dies before that date, the bequest becomes void

CONSTITUTIONAL VALIDITY OF S. 118 - As stated in S. 58 of the Act, this section does not apply to
Muhammadans. Nor does it apply to any Hindu Buddhist, Sikh or Jain. Then, by an Amendment made in 1991, S
118 was also made inapplicable to Parsees.

The net result was that the restrictions contained in S. 118 became applicable only to bequests made by Christians.
A Bench of the Kerala High Court held that the section was unconstitutional, as it was violative of Articles 14, 15,
25 and 26 of the Constitution of India, as all testators who are similarly situated are not subject to the same
procedure (Preman v Union of India, AIR 1999 Ker. 93)

This view was later confirmed by the Supreme Court of India in John Vallamattom v Union of India (AIR 2003 SC
2902). when the Supreme Court declared that S. 118 was violative of the fundamental rights guaranteed by the
Constitution of India.

10. Bequest upon an impossible condition (S. 128)

A bequest upon an impossible condition is void. (s. 126)

Illus.- (i) An estate is bequeathed to A on condition that he shall walk 100 miles in an hour. The bequest is void.

(ii) A bequeaths Rs. 500 to B on condition that he shall marry A’s daughter. As daughter was dead at the date of the
will. The bequest is void.
11. Bequest upon an illegal or Immoral condition (S. 127)

Likewise, a bequest upon a condition, the fulfilment of which would be contrary to law or to morality is void. (s.
127)

(i) A bequeaths Rs. 500 to B on condition that he shall murder C. The bequest is void

(ii) A bequeaths Rs. 5,000 to his niece if she will desert her husband. The bequest is void.

(In illustration (i) above, the condition is contrary is contrary to law, whereas in illustration (ii), the condition is
contrary to morality.)

L. VESTING OF LEGACIES (Ss. 104, 119-121 & 174)

VESTING.— Vesting means to be ”payable” and, as applied to a legacy means vesting in interest, and not merely
the vesting in possession. A bequest vested in interest is to be distinguished from one vested in possession. A bequest
is said to be vested in possession where there is a present right to the immediate possession or enjoyment of the
thing bequeathed. A bequest is said to be vested in interest where there is a present indefeasible right to the future
possession or enjoyment. Thus, if a bequest is made to El directly, he will have a present right to the immediate
possession and enjoyment of the object concerned. This is vesting in possession. However, if the bequest is to go to
B after the death of A, it will be a case of vesting in interest, because B has a present and indefeasible right on the
subject-matter of the bequest, but possession and enjoyment thereof are postponed till the death of A. Sec. 119 deals
with this kind of bequest, and S. 104 deals with legacies which are vested in possession.

As regards vesting of legacies, the following four rules may be noted

1. Vesting of legacy which is in general terms (Ss. 104 & 174)

If a legacy is given in general terms, without specifying the time when it is to be paid, the legatee has a vested
interest in it from the day of the death of the testator. So, if he dies without having received it, the property passes to
his heirs or representatives. (S. 104)

So also, under S. 174, where a will provides for the payment or purchase of an annuity the legacy vests in interest in
the legatee on the testator’s death. Although under section 104, the legacy vests on the date of the death of the
testator, he cannot demand payment of the legacy until the expiration of one year from the testator’s death. It must
also be remembered that until the assent of the executor is given, the legatee has only an inchoate (incomplete) right
to the legacy.

2. Date of vesting of legacy when payment or possession postponed (S. 119)

VESTED IN INTEREST— Sec. 119 deals with legacies vested in interest. A bequest is said to be vested in interest,
but not in possession, where there is a present indefeasible right to the future possession or enjoyment, e. g., a
bequest to A for life, with remainder to B. Here, B does not have the immediate possession of the bequest so long as
A is alive, but his interest is vested, and if B predeceases A, B’s legal heirs or representatives will be entitled to it.
Also, if A dies in the lifetime of the testator, B will take the legacy as soon as the testator dies.

This section enacts the rule that a legacy vests in interest in the legatee at the date of the testator’s death, and the
mere fact that the possession or enjoyment is deferred will not prevent the vesting, unless a contrary intention
appears by the will.

S. 119, therefore, provides that where the legatee is not entitled to immediate possession of the thing bequeathed,
unless a contrary intention appears by the will, a right to receive such legacy at the proper time is vested in the
legatee on the testator’s death, and such a right passes to the legatee’s representatives if he dies before that time,
without having received the legacy In such cases, the legacy is, from the testator’s death, said to be vested in
interest.

It is also clarified (by section 119) that no inference adverse to vesting should be drawn merely because—

(a) payment or possession of thing bequeathed is postponed (Illus. i and ii), or by the creation of a prior life or other
limited interest in the thing bequeathed in favour of some other person (Illus. iii); or

(b) a direction for accumulation of income is made until the time

for payment arrives, e. g., for payment of debts of the testator Onus v). or

(c) a provision is made that if a particular event happens, the legacy should go over to another person. (See Illus. (vi)
below) (This is called a defeasance clause in the will.)

Illus — (i) A bequeaths to B Rs. 100, to be paid to him at the death of C On As death, the legacy becomes vested in
interest in B. and if he dies before C. his representatives are entitled to the legacy.

(ii) A bequeaths to B, Rs.100, to be paid to him upon his attaining the age of 18. On As death, the legacy becomes
vested in interest in B

(iii) A fund is bequeathed to A for life, and after his death to B. On the testator’s death, the legacy to B becomes
vested in interest in B.

(iv) A fund is bequeathed to A until B attains the age of 18, and then to B. The legacy to B is vested in interest
from the testator’s death.

(v) A bequeaths the whole of his property to B upon trust to pay certain debts out of the income, and then to make
over the fund to C. At A’s death, the gift to C becomes vested in interest in him.

(VI) A fund is bequeathed to A. B and C in equal shares, to be paid to them on their attaining the age of 18,
respectively, with a proviso that, if all of them die under the age of 18, the legacy shall devolve upon D On the
death of the testator, the shares vested in Interest in A, B and C. subject to be divested in case A, B and C shall all
die under 18, and upon the death of any of them (except the last survivor) under the age of 18, his vested interest
passes, so subject, to his representatives.

Problem.— X bequeaths to Y, Rs. 500, to be paid to him on the death of Z. X dies. Later, Y dies before Z. What will
happen to the legacy of Y’?

Ans.— Under S. 119, the right to receive the legacy vested in Y’ on the death of X. Therefore, if Y dies before
having received it, it passes on to Ys representatives.

3. Date of vesting when legacy contingent upon specified uncertain event (S. 120)
S. 120, which deals with contingent interests, provides as follows :
(a) A legacy bequeathed in case a specified uncertain event shall happen, does not vest until that event happens.

(b) A legacy bequeathed in case a specified uncertain event shall not happen, does not vest until the happening of
that event becomes Impossible.

(c) In either case, until the condition has been fulfilled, the interest of the legatee is called contingent.

(d) However, if a fund is bequeathed to any person upon his attaining a particular age, and the will also gives to
him absolutely the income to arise from the fund before he reaches that age, or directs the income or so much of
it as may be necessary, to be applied for his benefit, the bequest of the fund is not contingent.

Illus.-(i) A legacy is bequeathed to D, in case A, B and C shall all die under the age of 18. D has a contingent
interest in the legacy until A, B and C all die under 18, or one of them attains that age.

(ii) A sum of money is bequeathed to A ”in case he shall attain the age of 18,” or ”when he shall attain the age of
18.” A’s interest in the legacy is contingent until the condition is fulfilled by his attaining that age.

(iii) An estate is bequeathed to A for life, and after his death to B if B shall then be living; but if B shall not be then
living, to C. A, B and C survive the testator. B and C each takes a contingent interest in the estate until the event
which is to vest it in one or in the other has happened.

(iv) An estate is bequeathed as in the case last supposed. B dies in the lifetime of A and C. Upon the death of B, C
acquires a vested right to obtain possession of the estate upon As death.

(v) A legacy is bequeathed to A when she shall attain the age of 18, or shah marry under that age with the consent of
B, with a proviso that if she neither attains 18 nor marries under that age with Us consent, the legacy shall go to C. A
and C each take a contingent interest in the legacy. A attains the age of 18. A becomes absolutely entitled to the
legacy, although she may have married under 18 without the consent of B

(vi) An estate is bequeathed to A until he shall marry, and after that event to B. Bs interest in the bequest is
contingent until the condition is fulfilled by A’s marrying.

(vii) An estate is bequeathed to A until he shall take advantage of any law for the relief of insolvent debtors, and
after that event to B Bs interest in the bequest is contingent until A takes advantage of such a law.

(viii) An estate is bequeathed to A if he shall pay Rs 500 to B. A’s interest in the bequest is contingent until he has
paid Rs. 500 to B.

(ix) A leaves his farm of Sultanpur Khurd to B, if B shall convey his own farm of Sultanpur Bazurg to C. Bs interest
in the bequest is contingent until he has conveyed the latter farm to C

(x) A fund is bequeathed to A if B shall not marry C within five years after the testator’s death. A’s interest in the
legacy is contingent until the condition is fulfilled by the expiration of the five years without Bs having married C,
or by the occurrence within that period of an event which makes the fulfilment of the condition impossible.

(xi) A fund is bequeathed to A if B shall not make any provision for him by will. The legacy is contingent until Bs
death.
(xii) A bequeaths to B, Rs. 500 a year, upon his attaining the age of 18, and directs that the interest, or a suitable part
thereof, shall be applied for his benefit until he reaches that age The legacy is vested.

(xiii) A bequeaths to B Rs. 500 when he shall attain the age of 18, and directs that a certain sum, out of another fund,
shall be applied for his maintenance until he arrives at that age. The legacy is contingent.

Problem.- A testator directed his executor to give the residue of his property to his son, if a son was born to his wife
(who was then pregnant), when such a son came of age. A son was born to the wife, but he died before he attained
majority. Will the residue devolve on the legal representatives of the son?

Ars- No The bequest was contingent on the son’s attaining the age of majority. As he died before that, the estate will
not devolve on his legal representatives. (Cowasji v. Ratanbai, 49 Bom. 16 PC.)

1. Vesting of interest In bequest to such members of a class as shall have attained particular age (S. 121)

Where a bequest is made only to such member of a class as has attained a particular age, a person who has not
attained that age cannot have a vested interest in the legacy.

A fund is bequeathed to such of the children of A as shall attain the age of 18, with a direction that, while any child
of A shall be under the age of 18, the income of the share, to which it may be presumed he will be eventually
entitled, shall be applied for his maintenance and education. No child of A who is under the age of 18 has a vested
interest in the bequest.

VESTED AND CONTINGENT INTEREST DISTINGUISHED.— The difference between a vested and a
contingent interest is that a vested interest takes effect on the testator’s death, unless there is a contrary intention in
the will. Even though the legatee may not be entitled to immediate possession of the bequest by reason of a prior
bequest, or by reason of a provision in the will that the income arising from the fund is directed to be accumulated
until the time for payment arrives, the legacy nevertheless becomes vested in interest in the legatee from the
testator’s death, and if the legatee dies before receiving the legacy, it goes to his legal representatives.

The points of difference between the two are as follows :

1. A contingent interest is contingent upon the happening of a contingency, which may or may not take place. A
vested interest is unconditional; only the enjoyment may be postponed. A contingent interest is dependant on the
fulfilment of the condition which may or may not be fulfilled. In the one, the gift is immediate, but the enjoyment
may be postponed. In the other, there is no gift until the contingency is fulfilled.

2. A vested interest does not depend upon the fulfilment of a condition, and takes effect from the death of the
testator. If its enjoyment depends upon any condition, such condition relates to an event which is certain to happen.
Thus, where a fund is bequeathed to A for life, and after his death to B, on the testator’s death, the legacy to B
becomes vested in interest in B, for A’s death is a certain event and is bound to happen some time or the other.

A contingent interest on the other hand, depends solely upon the fulfilment of a condition relating to an uncertain
event, i.e., an event which may or may not happen. Thus, where an estate is bequeathed to A until he shall marry,
and after that event to B, Bs interest in the bequest is contingent until the condition is fulfilled by A’s marrying. A
may never marry, and Bs interest may fall through.

3. A vested interest gives a present right to the present possession or a present right to future enjoyment. A
contingent interest gives no such present right.
4. A vested interest is heritable and transferable. A contingent interest is neither heritable nor transferable.

5. In the case of a vested interest, the interest is complete, though on the happening of a specified event, it may be
divested. In the case of a contingent interest, the interest is not complete until the specified uncertain event happens
or does not happen.

SUMMARY OF POINTS OF DIFFERENCE BETWEEN :

VESTED INTEREST

1. It is unconditional. Only its enjoyment may be postponed.

2. It does not depend on the fulfilment of a condition, and takes effect on the death of the testator.

3. It confers a present right to present possession or future enjoyment.

4. It is heritable and transferable.

5. The interest is complete, though it may be divested on the happening of a specified event.

CONTINGENT INTEREST

1. It is contingent on the happening of a contingency, which may or may not take place
2. It depends solely on the fulfilment of a condition relating to an uncertain event

3. It confers no such present right.

4. It is neither heritable nor transferable.

5. The interest is not complete until a specified uncertain event happens or does not happen

M. ONEROUS BEQUESTS (Ss. 122 and 123)

A bequest is said to be onerous when it imposes a liability or an obligation on the legatee. In such a case, the
legatee takes nothing by the bequest unless he accepts it fully. (S. 122)

Illus.— A having shares in X, a prosperous joint stock company, and also shares in Y, a joint stock company in
difficulties, in respect of which shares heavy calls are expected to be made, bequeaths to B all his shares in joint
stock companies; B refuses to accept the shares in V He forfeits the shares in X.

This section seems to ensure that a person who wishes to enjoy the roses must also be prepared to bear the thorns.
The legatee is not allowed to elect; either he takes the whole or he takes nothing. He cannot reject the onerous
part of the bequest, and affirm the beneficial part thereof In other words, he cannot blow hot and cold at the same
time

Thus, in Cooper v. Gijers, (1899 2 Ch. 54), it was held that life-tenant of a lease must, during the continuance of his
interest, pay the rent and perform all the covenants and conditions of the lease.
In another English case, In Re Courtier, a man bequeathed some leasehold lands to his wife for life, and thereafter
to certain other persons (remaindermen). The property was badly in need of repairs, and the remaindermen applied
for an order to compel the wife to put the property in repairs. The Court held that the life-tenant (i.e., the wife) was
under no obligation to repair the property.

Where, however the will contains two separate and independent bequests, the legatee can take the beneficial one
and refuse the other which is onerous. (S. 123)

Illus.– A, having a lease for a term of years of a house at a rent which he and his representatives are bound to pay
during the term, and which is higher than the house can be let for, bequeaths to B the lease and sum of money. B
refuses to accept the lease. He shall not, by this refusal, forfeit the money.

In all cases, it will be a question of construction to see whether there is one composite gift or two distinct ones. This
rule was applied by the Court of Chancery in England, in Fairlough v. Johnstone, in which case the gifts were in
two different parts of the will.

N. CONTINGENT BEQUESTS (St 124 and 125)

A contingent bequest is one which is effective only on the happening or not happening of a contingency. Thus, a
legacy is given to A. If A dies, it is to go to B. This is a contingent bequest. There are two rules with regard to
contingent bequests, in Ss. 124 and 125.

1. Where a legacy is given if a specified uncertain event happens, and no time is mentioned in the will for the
occurrence of that event, —the legacy cannot take effect, unless such event happens before the period when the
money becomes payable. (S.124)

Illustrations.– (i) A legacy is bequeathed to A, and in case of his death, to B. If A survives the testator, the legacy
to B does not take effect.

(ii) A legacy is bequeathed to A, and in case of his death without children, to B. If A survives the testator or
dies in his lifetime leaving a child, the legacy to B does not take effect.

(iii) A legacy is bequeathed to A when and if he attains the age of 18, end, in case of his death, to B. A attains the
age of 18. The legacy to B does not take effect.

(iv) A legacy is bequeathed to A for life, and after his death to B, and ”in case of 6’s death without children”, to C.
The words ”in case of B’s death without children” are to be understood as meaning ”in case B dies without children
during the lifetime of A.”

(v) A legacy is bequeathed to A for life, and, after his death to B, and ”in case of B’s death,” to C. The words, ”in
case of B’s death” are to be considered as meaning ”in case B dies in the lifetime of A.”

2. Where a bequest is made to such of certain persons as shall be surviving at some period, but the exact period is
not specified —, the legacy goes to such of them as are alive at the time of payment or distribution, — unless a
contrary intention appears in the will. (S. 125)

Illus.— (i) Property is bequeathed to A and B to be equally divided between them, or to the survivor of them. If both
A and B survive the testator, the legacy is equally divided between them If A dies before the testator, and B survives
the testator. it goes to B
(ii) Property is bequeathed to A for life, and after his death to B and C, to be equally divided between them, or to the
survivor of them. B dies during the life of A: C survives A. At A’s death, the legacy goes to C.

(iii) Property is bequeathed to A for life, and after his death to B and C, or the survivor, with a direction that if B
should not survive the testator, his children are to stand in his place C dies during the life of the testator; B survives
the testator, but dies in the lifetime of A The legacy goes to the representatives of B.

(iv) Property is bequeathed to A for life, and after his death, to B and C, with a direction that, in case either of them
dies in the lifetime of A, the whole shall go to the survivor. B dies in the lifetime of A. Afterwards, C dies in the
lifetime of A. The legacy goes to the representatives of C.

0. CONDITIONAL BEQUESTS (Ss. 126-137)

CONDITIONAL BEQUESTS.— A conditional bequest is one the existence of which depends upon the happening
or not happening of some uncertain event by which it is either to take effect or to be defeated. Conditions are of two
kinds—(1) Conditions Precedent (Ss. 126-128), and (2) Conditions Subsequent (Ss. 129-137)

Void bequests (Ss. 126-127)

Two rules are to be noted in connection with conditional bequests which are totally void.

1. If a bequest is made on a condition which is impossible, the bequest is void. (S. 126)

Illustrations,- (i) An estate is bequeathed to A on condition that he shall walk 100 miles in an hour. The bequest is
void.

(ii) A bequeaths Rs. 500 to B on condition that he shall marry As daughter As daughter was dead at the date of the
will. The bequest is void.

2. Secondly, if a bequest is made on a condition the fulfilment of which would be contrary to law or to morality,
such bequest is also void (S 127)

Illustrations — (i) A bequeaths Rs. 500 to B on condition that he shall murder C The bequest is void.

(ii) A bequeaths Rs. 5,000 to his niece if she will desert her husband The bequest is void.

Egerton v. Earl of Brownlow is a good example of a condition against public policy or public morality. In this case,
property was given to Lord Alford with a proviso that if he died without acquiring a particular title, then the estate
was to cease. The House of Lords held that such a condition was against public policy, and therefore, void— and that
the heirs of Lord Alford were entitled to the property absolutely.

CONDITIONS PRECEDENT AND SUBSEQUENT.— A condition precedent precedes the vesting of the estate,
whilst a condition subsequent is to be performed alter the estate has become vested and, it not performed, may cause
an interest already vested to be divested or to be altogether void. Where the condition is precedent, the estate is not
vested in the grantee until the condition is performed, but where the condition is subsequent, the estate vests
immediately in the grantee and remains in him till the condition is broken. Ss.126 to 128 relate to conditions
precedent; Ss. 129 to 137 deal with conditions subsequent.
1. CONDITION PRECEDENT (S. 128)

Where a will imposes a condition precedent, it is to be considered to have been fulfilled if it has been substantially
complied with. (S. 128)

Illustrations.— (i) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C, D and E. A
marries with the written consent B. C is present at the marriage. D sends a present to A previous to the marriage. E
has been personally informed by A of his intention and has made no objection. A has fulfilled the condition.

(ii) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. D dies. A marries
with the consent of B and C. A has fulfilled the condition.

(iii) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A marries in the
lifetime of B, C and D, with the consent of B and C only. A has not fulfilled the condition.

(iv) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A obtains the
unconditional assent of B, C and D to his marriage with E. Afterwards. B, C and D capriciously retract their consent.
A marries E. A has fulfilled the condition.

(v) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A marries without
the consent of B, C and D, but obtains their consent after marriage. A has not fulfilled the condition.

(vi) A makes his will whereby he bequeaths a sum of money to B if B shall marry with the consent of A’s executors.
B marries during the lifetime of A and A afterwards expresses his approbation of the marriage. A dies. The bequest to
B takes effect.

(vii) A legacy is bequeathed to A if he executes a certain document within a time specified in the will. The document
is executed by A within a reasonable time, but not within the time specified in the will. A has not performed the
condition, and is not entitled to receive the legacy.

DOCTRINE OF CY-PRES.— This section lays down the well-known rule of cy-pres. As regards the performance of
conditions, the general rule is that in case of a condition precedent, if the condition is performed cy-pres, as it is
termed, that is to say. if it has been substantially complied with, it will be sufficient But where there is a condition
precedent to the vesting of the interest in a person. and on his failing to perform the condition, the property is to go
to someone else, that condition must be complied with strictly (as explained below).

2. CONDITION SUBSEQUENT (St 129-137) The following eight rules apply to a bequest with a condition
subsequent :

1. Where there is a bequest to one person and a bequest of the same thing to another, if the prior bequest fails, the
second bequest takes effect upon the failure of the prior bequest, although the failure may not have occurred in the
manner contemplated by the testator: S. 129. However, where the will shows an intention that the second bequest
should take effect only in the event of the first bequest failing in a particular manner, the second bequest does not
take effect, unless the prior bequest fails in that particular manner S. 130

Illustrations.— (i) A bequeaths a sum of money for his own children surviving him, and, if they all die under 18, to
B A dies without ever having a child. The bequest to B takes effect.

(ii) A bequeaths a sum of money to B, on condition that he shall execute a certain document within three months
after A’s death, and if he should neglect to do so, to C. B dies in the testator’s lifetime. The bequest to C takes effect.

(iii) A makes a bequest to his wife, but in case she should die in his lifetime, bequeaths to B that which he had
bequeathed to her A and his wife perish together under circumstances which made it impossible to prove that she
died before him. The bequest to B does not take effect.

S. 129 (above) enunciates the doctrine of acceleration. Under this section, a gift in remainder, expectant on the
termination of an estate for life is accelerated by reason of the gift of such prior life-estate not taking effect. Where
in a series of successive limitations, a particular estate is void ab initio, the remainder, which is immediately
expectant upon such estate, accelerates. Thus, where a prior estate is revoked by the donor, and thus fails, the
remainder, which is expectant upon it, accelerates

II. A bequest may be made to any person with a condition superadded. on the happening or non-happening of
which it is to go to another person. However, such an ulterior bequest is also subject to the rules given above in Ss.
120 to 130. (S. 131)

Illustrations - (i) A sum of money is bequeathed to A, to be paid to him at the age of 18, and if he shall die before he
attains that age, to a A takes a vested interest in the legacy, subject to be divested and go to B in case A dies under
18.

(ii) An estate is bequeathed to A with a proviso that if A shall dispute the competency of the testator to make a will,
the estate shall go to B. A disputes the competency of the testator to make a will. The estate goes to B.

(iii) A sum of money is bequeathed to A for life, and after his death to B; but if B shall then be dead, leaving a son,
such son is to stand in the place of B. B takes a vested interest in the legacy, subject to be divested if he dies leaving
a son in A’s lifetime.

(iv) A sum of money is bequeathed to A and B, and if either should die during the life of C, then to the survivor
living at the death of C. A and B die before C. The gift over cannot take effect, but the representative of A takes one-
half of money and the representative of B takes the other half.

(v) A bequeaths to B the interest of a fund for life, and directs the fund to be divided at her death equally among
her three children or such of them as shall be living at her death. All the children of B die in B’s lifetime. The
bequest over cannot take effect, but the interests of the children pass to their representatives.

III. Further, the ulterior bequest will not take effect unless the condition is strictly fulfilled. (S. 132)

Illustrations.- (i) A legacy is bequeathed to A with a proviso, that, if he marries without the consent of B. C and
D, the legacy shall go to E. D dies. Even if A marries without the consent of B and C, the gift to E does not take
effect.

(ii) A legacy is bequeathed to A, with a proviso that if he marries without the consent of B, the legacy shall go to C.
A marries with the consent of B. He afterwards becomes a widower and marries again without the consent of B.
The bequest to C does not take effect.

(iii) A legacy is bequeathed to A, to be paid at the age of 18 or marriage, with a proviso that, if A dies under 18 or
marries without the consent of B, the legacy shall go to C. A marries under 18 without the consent of B. The
bequest to C takes effect.
IV. If the ulterior bequest is not valid, the original bequest is not affected by it. (S. 133)

Illustrations.— (i) An estate is bequeathed to A for his life, with a condition superadded that, if he shall not on a
given day walk 100 miles in an hour, the estate shall go to B. The condition being void, A retains his estate as if no
condition has been inserted in the will.

(ii) An estate is bequeathed to A for her life, and if she does not desert her husband. to B. A is entitled to the estate
during her life as if no condition had been inserted in the will.

(iii) An estate is bequeathed to A for life, and, if he marries, to the eldest son of B for life. B, at the date of the
testator’s death, had not had a son. The bequest over is void under section 105. and A is entitled to the estate during
his life.

V. A bequest may be made with the condition superadded that it shall cease to have effect in case a specified
uncertain event shall happen, or in case a specified uncertain event shall not happen (S. 134)

Illustration.— (i) An estate is bequeathed to A for his life, with a proviso that, in case he shall cut down a certain
wood, the bequest shall cease to have any effect. A cuts down the wood. He loses his life-interest in the estate.

(ii) An estate is bequeathed to A, provided that, if he marries under the age of 25 without the consent of the
executors named in the will, the estate shall cease to belong to him. A marries under 25 without the consent of the
executors. The estate ceases to belong to him.

(iii) An estate is bequeathed to A, provided that, if he shall not go to England within three years after the testator’s
death, his interest in the estate shall cease. A does not go to England within the time prescribed. His interest in the
estate ceases.

(iv) An estate is bequeathed to A, with a proviso that, if she becomes a nun, she shall cease to have any interest in
the estate. A becomes a nun. She loses her interest under the will

(v) A fund is bequeathed to A, for life, and after his death, to B, if B shall be then living, with a proviso that. if B
shall become a nun, the bequest to her shall cease to have any effect. B becomes a nun in the lifetime of A. She
thereby loses her contingent interest in the fund.

VI. In order that a condition that a bequest shall cease to have effect may be valid, it is necessary that the event to
which it relates should be one which could legally constitute the condition of a bequest under section 120. (S. 135)

VII. Where a bequest is made with a condition superadded that, unless the legatee performs a certain act, the
bequest is to go to another person. or the bequest is to cease to have effect, but no time is specified for the
performance of the act, if the legatee takes any step which renders impossible, or indefinitely postpones, the
performance of the required act, the legacy goes as if the legatee had died without performing such an act. (S. 136)

Illustrations — (i) A bequest is made to A. with a proviso that, unless he enters the Army, the legacy shall go over to
B. A takes Holy Orders, and thereby renders it impossible that he should fulfil the condition B is entitled to receive
the legacy.

(ii) A bequest is made to A, with a proviso that it shall cease to have any effect if he does not marry B’s daughter. A
marries a stranger. and thereby indefinitely postpones the fulfilment of the condition The bequest ceases to have
effect.
VIII. Lastly. where the will requires an act to be performed by the legatee within a specified time, the act must be
performed within the time specified, unless its performance is prevented by fraud, in which case further time is to
be allowed as may be necessary to make up for the delay caused by such fraud. (S 137)

Summary of St 129-137 (Conditions subsequent)

If a bequest is given to one person, but is to go to another on the failure of the first, on the first bequest failing, the
second bequest takes effect The fact that the failure of the first occurred in the manner different from that
contemplated by the testator is immaterial, except when the will expressly shows such an intention. In the latter
case, the second bequest will take effect only lithe first one failed as contemplated by the testator: Ss.129-130.

A bequest may be made to one person with a condition superadded, on the happening or non-happening of which it
may go to another, but such an ulterior bequest is subject to the rules given above in Ss. 120 to 130 Besides, the
ulterior bequest will not take effect unless the condition is strictly fulfilled. It must be noted, however. that if the
ulterior bequest is not valid, the prior (original) bequest is not affected by it: Ss. 131-133.

It is open to a testator to make a conditional bequest, so that it ceases to have effect in case a specified uncertain
event happens or does not happen; but such a condition must not be invalid under S. 120. If the condition consists in
the doing of a certain act by the legatee, but no time is specified for its performance, the condition will be deemed
not to be performed, if the legatee takes any step which renders impossible, or indefinitely postpones, the
performance of the required act. But if time is prescribed for the performance of the act, it has to be performed
within that specified time; further time is allowed only in case of fraud practised upon the legatee : Ss.134-137.

DIFFERENCE BETWEEN CONDITION PRECEDENT AND CONDITION SUBSEQUENT.— There are four
points of distinction between the two :

1. As to vesting.— (a) Condition precedent precedes the vesting of estate; a condition subsequent is to be performed
alter the estate has become vested, and, if not performed, may cause a vested interest to be divested or to be void.

(b) In a condition precedent, the estate is not vested in the grantee until the condition is performed; in a condition
subsequent, it immediately vests in the grantee, but is liable to be divested.

2. As to impossibility or illegality in the condition.— An impossible or illegal condition precedent makes the legacy
void; but an impossible or illegal condition subsequent makes the condition void, and the legacy remains valid.

3. As to performance.— (a) A condition precedent will be deemed to be performed if it is substantially complied

with, whereas a condition subsequent must be performed strictly

(b) In condition precedent, where no time is specified for its performance, it must be performed within a reasonable
lime In a condition subsequent, the legatee forfeits the legacy if he renders its performance impossible or if he
indefinitely postpones it

4. As to construction.— The former need not be construed strictly; the latter must be construed with great strictness.

SUMMARY OF POINTS OF DIFFERENCE BETWEEN :

CONDITION PRECEDENT
1. Vesting
(a) It precedes the vesting of the estate.
(b) The estate does not vest in the grantee until the condition is performed.

2. Impossibility/illegality of condition
If a condition precedent is impossible or illegal, the legacy is void.

3. Performance
(a) A condition precedent may be substantially complied with.
(b) If no time is specified, a condition precedent must be performed within a reasonable time.

4. Construction
A condition precedent need not be construed strictly.

CONDITION SUBSEQUENT

1. Vesting
(a) It is to be performed after the estate vests
(b) The estate vests immediately in the grantee. but is liable to be divested

2. Impossibility/illegality of condition
If a condition subsequent is impossible or illegal, the condition is void, but the legacy is valid

3. Performance
(a) A condition subsequent must be strictly complied with
(b) The legatee forfeits his legacy, if he renders the performance of a condition. subsequent impossible or if he
indefinitely postpones it.

4. Construction
A condition subsequent must be construed strictly.

P. BEQUESTS WITH DIRECTIONS AS TO APPLICATION OR ENJOYMENT (Ss 138-140)

The following three rules apply in case of a bequest with a direction as to the application or enjoyment of what is
bequeathed

(a) Where there is any direction as to the particular mode of enjoyment of a fund which is bequeathed absolutely the
legatee will receive the fund as if there was no such direction. (S. 138)

Illus — A sum of money is bequeathed towards purchasing a country residence for A; or to purchase an annuity for
A; or to place A in any business A chooses to receive the legacy in money. He is entitled to do so.

SCOPE – A testator cannot restrict the mode of enjoyment of the property he bequeaths The section is based on the
doctrine of repugnancy It must be remembered that, under this section, the bequest must be absolute S. 138 does not
apply where the bequest is of a life-interest only.

(b) Similarly, a direction that the mode of enjoyment of an absolute bequest is to be restricted for the benefit of the
legatee, is to be ignored if that benefit cannot be obtained. (S. 139)
Illus– (i) A bequeaths the residue of his property to be divided equally among his daughters, and directs that the
shares of the daughters shall be settled upon themselves respectively for life and be paid to their children after their
death All the daughters die unmarried The representatives of each daughter are entitled to her share of the residue.

(ii) A directs his trustees to raise a sum of money for his daughter, and he then directs that they shall invest the fund
and pay the income arising from it to her during her life, and divide the principal among her children after her death.
The daughter dies without having ever had a child. Her representatives are entitled to the fund.

(c) If, however, the bequest is not absolute, arid the purpose for which it was made cannot be fulfilled – the fund
remains a part of the estate of the testator (S 140)

Ilus.- (i) A directs that his trustees shall invest a sum of money in a particular way, and shall pay the interest to his
son for life, and at his death, shall divide the principal among his children. The son dies without ever having a child.
The fund, after the son’s death, belongs to the estate of the testator.

(ii) A bequeaths the residue of his estate to be divided equally among his daughters, with a direction that they are to
have the interest only during their lives, and that at their decease, the fund shall go to their children. The daughters
have no children. The fund belongs to the estate of the testator.

Q. BEQUESTS TO EXECUTOR (S. 141)

If a legacy is bequeathed to an executor of the will, he cannot take the legacy, unless he proves the will or otherwise
manifests an intention to act as executor. (S. 141)

Illus.- A legacy is given to A. who is named an executor A orders the funeral according to the directions contained in
the will, and dies a few days after the testator, without having proved the will A has manifested an intention to act as
executor.

SCOPE.- Under the Indian Succession Act, executor can be a legatee. A bequest made to an executor is quite valid,
but the bequest is conditional on his accepting the office of executor. The condition is, of course, precedent, and
unless the condition is fulfilled, the legacy does not vest in him.

Prima facie, it is presumed that such a legacy is given to him for the trouble he would be taking, and if he refuses to
undertake the office of executor, it would be lair that he should not get the legacy

In order to get the legacy, it is not absolutely necessary that the executor must prove the will. It would be sufficient
if he does anything which shows his intention to act as the executor. On the other hand, the mere fact of proving the
will would not suffice. if the executor had no bona fide intention of administering the estate, and has procured the
probate only to enable him to violate the confidence reposed in him by the testator.

In one case, the executor was abroad, and he sent a Power of Attorney under which another person began to
administer the estate However, the executor died without proving the will It was held that he had sufficiently
manifested his intention to act, and was therefore, entitled to the legacy. (Lewis v. Mathews, 8 Eq., 277)

In another case, the testator had directed his executor to perform his sradh ceremony. It was proved that he did not
perform the sradh ceremony, but only attended the cremation. It was held that he had not manifested his intention to
act as executor (Bhawani v Tapesari. AIR 1973 S. C. 2583)

A bequest to an executor must not be confused with a bequest to an attesting witness. A bequest to an attesting
witness (or his or her wife or husband) is void under S. 67. There is no such provision as to a bequest to an executor
Such a bequest is perfectly valid, subject to what is stated above.

ENGLISH LAW.- In England, in such a case, the presumption is that the legacy is given to the person in his
character as executor - but it is open to such person to repel the presumption, i.e., the onus is on him.

R. KINDS OF LEGACY (Ss. 142-151)

Legacies are of three kinds-

1. General;
2. Specific; and
3. Demonstrative

1. GENERAL LEGACY (S. 148)

The Act has not defined a general legacy. It is a legacy, not of any particular thing, but of something which is to be
provided out of the general estate of the testator, as for instance, 1 bequeath As 10,000 to my faithful servant,
Chandu.” It is always directed to be paid out of the general funds of the testator.

Under S 148, where property is bequeathed to several persons in succession, in the absence of any direction to the
contrary, a general legacy has to be sold, and the proceeds invested in authorised securities

Illus- A, having a lease for a term of years, bequeaths all his property to B for life, and, after B’s death, to C. The
lease must be sold, the proceeds invested as stated in this section, and the annual income arising from the fund is to
be paid to B for life. At B’s death, the capital of the fund is to be paid to C.

2. SPECIFIC LEGACY (Ss. 142-147 & 149)

Definition (S. 142)

Where a testator bequeaths to any person a specific part of his property, which is distinguished from all parts of his
property, the legacy is said to be specific.

Illustrations.- (i) A bequeaths to B-

the diamond ring presented to me by C”;
’my gold chain”;
”a certain bale of wool”;
”a certain piece of cloth”:
”all my household goods which shall be in or about my dwelling-house in M Street, in Calcutta, at the time of my
death”:
”the sum of Rs 1,000 in a certain chest”;
”the debt which B owes me”;
”all my bills, bonds and securities belonging to me lying in my lodging in Calcutta”;
”all my furniture in my house in Calcutta”;
”all my goods on board a certain ship now lying in the river Hugh”;
”Rs. 2,000, which I have in the hand of C’;
-the money due to me on the bond of D’;
”my mortgage on the Rampur Factory”;
”one-half of the money owing to me on my mortgage of Rampur factory”;
”Rs. 1,000, being a part of a debt due to me from C’;
”my capital stock of Rs. 1,000 in the East India Stock”;

”my promissory notes of the Central Government for Rs. 10,000 in their 4 per cent loan”;
”all such sums of money as my executors may, after my death, receive in respect of my debt due to me from the
insolvent firm of D & Company”,
”all the wine which I may have in my cellar at the time of my death”; such of my horses as P may select”;
”all my shares in the Bank of India”; ”all my shares in the Bank of India, which I may possess at the time of my
death”;
”all the money which I have in 5 per cent loan of the Central Government”;
”all the Government securities I shall be entitled to at the time of my decease.”

Each of these legacies is specific.

(ii) A, having government promissory notes for Rs. 10,000, bequeaths to his executors ”Government promissory
notes for Rs. 10,000 in trust to sell” for the benefit of B. The legacy is specific

(iii) A, having property at Banaras and also in other places, bequeaths to B, all his property at Banaras. The legacy is
specific

(iv) A bequeaths to B —
”his house in Calcutta”;
his zamindari of Rampur”;
”his lease of the indigo factory of Salkya”,
”an annuity of Rs. 500 out of the rents of his zamindan of W”;
A directs his zamindari of X to be sold, the proceeds to be invested for the benefit of B.

Each of these bequests is specific.

(v) A, by his will, charges his zamindari of Y with an annuity of Rs.1,000 to C during his life, and subject to his
charge. he bequeaths the zamindari to D. Each of the bequests is specific

(vi) A bequeaths a sum of money–

”to buy a house in Calcutta for B”,
”to buy an estate in Zilla Faridpur for B;
-to buy a diamond ring for B’;
”to buy a horse for B’;
”to be invested in shares in the Bank of India for B’;
”to be invested in Government securities for B”.
A bequeaths to B –
”a diamond ring”;
”a horse”;
”Rs.10,000 worth of Government securities”;
”an annuity of Rs. 5,000
”Rs 2,000 to be paid in cash”;
”so much money as will produce Rs. 5,000 four per cent Government securities”.
These bequests are not specific.

(vii) A, having property in England and property in India, bequeaths a legacy to B. and directs that it shall be paid
out of the property which he may leave in India He also bequeaths a legacy to C. and directs that it shall be paid out
of property which he may leave in England None of these legacies is specific.

Iegacies which are not specific (Ss. 143-146)

Sections 143 to 146 declare that the following four kinds of bequests are not specific bequests, viz.-

1. Where a certain sum is bequeathed, the legacy is not specific merely because the stock, funds or securities in
which it is invested are described in the will (S. 143)

Illus - A bequeaths to B.-

”As 10,000 of my funded property”.
”Rs 10,000 of my property now invested in shares of the East Indian Railway Company”
”Rs 10.000 at present secured by mortgage of Rampur factory:”
None of these legacies is specific.

2. Where a bequest is made in general terms of a certain amount of any kind of stock (i.e. shares), the legacy is not
specific, merely because the testator was, at the date of his will, possessed of stock (i.e. shares) of the specified kind,
to an equal or greater amount than the bequeathed (S. 144)

Illus.- A bequeaths to B As 5,000 five per cent Government securities. A had, at the date of the will, five per cent
Government securities for Rs.5,000. The legacy is not specific.

3. A money legacy is not specific merely because the will directs its payment to be postponed until some part of the
property of the testator has been reduced to a certain form or remitted to a certain place. (S. 145)

Illus.- A bequeaths to B, Rs.10,000, and directs that this legacy shall be paid as soon as A’s property in India shall be
realised in England. The legacy is not specific.

4. Where a will contains a bequest of a residue of the testator’s property along with an enumeration of some items of
property not previously bequeathed, the articles enumerated are not to be deemed to be specifically bequeathed S.
146.

Rules relating to specific legacies (Ss. 147, 149, 152, 167)

The following are the six rules governing specific legacies

1. Where property is specifically bequeathed to two or more persons in succession, it should be retained in the form
in which the testator left it, although it may be of such a nature that its value is continually decreasing. (S. 147)

Illus.— (i) A, having lease of a house for a term of years, fifteen of which were unexpired at the time of his death,
has bequeathed the lease to B for his life, and after 13s death, to C. B is to enjoy the property as A left it, although, if
B lives for fifteen years, C can take nothing under the bequest.

(ii) A, having an annuity during the life of B, bequeaths it to C, for his life and after Cs death, to D. C is to enjoy the
annuity as A left it, although, if B dies before D, D can take nothing under the bequest.

2. In case of deficiency of assets, the specific legacy is not liable to abate with the general legacy. (S. 149)
In case of general legacies, the rule is that if the assets of the testator are not sufficient to pay all such general
legacies in full, they abate pro rata (i.e., in equal proportions). However, this rule does not apply to specific legacies:
such legacies are not subject to abatement like general legacies.

3. However, if the assets are not sufficient to pay all the debts of the testator and the specific legacies, a
proportionate abatement is to be made from the specific legacies. (S. 330)

4. If the thing bequeathed does not belong to the testator at the testator’s death or has been converted into property
of a different kind, the specific legacy is adeemed. (S. 152)

Thus, for instance, if the testator has bequeathed his diamond ring to X but has sold or gifted away the ring in his
own life-time, X will not get anything on the testator’s death (This has been discussed under ”Ademption of
Legacies”, later in this Chapter )

5. Where the thing specifically bequeathed is the right to receive something of value from a third party, and the
testator himself receives it, the bequest is adeemed. (S. 154)

(This is discussed later in this Chapter under the heading, ”Ademption of legacies”.)

6. A specific legatee takes the legacy subject to all encumbrances. (S. 167)

DIFFERENCE BETWEEN GENERAL AND SPECIFIC LEGACIES.— There are four points of distinction
between general and specific legacies, as under :

1. In the case of general legacies, if the assets of the testator after payment of debts, necessary expenses, and specific
legacies are not sufficient to pay all the general legacies in full, they abate proportionately. A specific legacy, so
long as the specified thing is in the testator’s possession, is not liable to abatement with the general legacies on a
deficiency of assets. On the other hand, if the thing specifically bequeathed does not, at the time of his death, belong
to the testator or the property is converted into property of another kind, in other words, if the legacy is adeemed, the
specific legatee will not be entitled to any recompense or satisfaction out of the general estate.

2 Again, in the case of a specific bequest to two or more persons in succession, the property specifically bequeathed
should be retained in the same form, though it is of a wasting nature, and notwithstanding that there is a danger that
one object of the testator’s bounty will be defeated by the tenancy for life lasting as long as property enures

But if the property is not specifically bequeathed, but is a general bequest to two or more persons in succession, and
if the property is of a wasting nature, it is to be converted into permanent property; in other words, it must be
invested in authorised securities.

3 A specific legacy carries income or interest from the testator’s death (Sec 349) A general legacy carries interest
from the expiration of one year after the testator’s death. (Sec. 351)

4 A specific legatee takes the bequest subject to all encumbrances existing at the death of the testator and is liable
to make good the amount of such encumbrances (Sec. 167, above)

The points of difference between a specific legacy and a general legacy can be summarised in a tabular form as
under :

DIFFERENCE BETWEEN
SPECIFIC LEGACY

1. A specific is not liable to abatement.

2. If there is a specific bequest to two or more persons in succession, the property is to be retained in the same form,
even if it is wasting in nature.

3. A specific legacy carries interest from the date of the testator’s death.

4. A specific legacy takes the bequest subject to all encumbrances existing on the date of the testator’s death.

GENERAL LEGACY

1. General legacies abate proportionately if the testator’s assets are not sufficient to pay all the general legacies in
full.

2. In such cases, the property covered by the general legacy should be invested in authorised securities.

3. Interest is to be paid on a general legacy from the expiry of one year after the testators death.

4. No such requirement exists in the case of a general legacy.

3. DEMONSTRATIVE LEGACY (S. 150) Definition (S. 150)

When a testator bequeaths a certain sum of money or a certain quantity of any other commodity, — and refers to a
particular fund or stock, so as to constitute for the same the primary fund or stock out of which payment is to be
made — the legacy is said to be demonstrative.

Illus.– (i) A bequeaths to B, Rs. 1,000 being part of a debt due to him from W He also bequeaths to C Rs. 1,000 to be
paid out of the debt due to him from W The legacy to B is specific, the legacy to C is demonstrative.

(ii) A bequeaths to B –
”ten bushels of the corn, which shall grow in my field of Green Acre”; ”80 chests of the indigo, which shall be made
at my factory of Rampur”;
”Rs. 10,000, out of my five per cent promissory notes of the Central Government”;
”an annuity of Rs. 500, from my funded property”;
’Rs. 1,000, out of the sum of Rs. 2,000 due to me by C’;
”an annuity, to be paid out of the rents arising from my taluk of Ramnagar”.
Each of these bequests is demonstrative.

(iii) A bequeaths to B-.

”As. 1,000 out of my estate at Ramnagar” or charges it on his estate at Ramnagar;
”Rs. 10,000 being my share of the capital embarked in a certain business”;
Each of these bequests is demonstrative.

Thus, a demonstrative legacy consists of a pecuniary legacy, i.e., a certain sum of money or a certain quantity of any
other commodity, payable out of a particular fund or stock, which fund or stock is the primary source out of which
the payment is to be made.
Difference between specific and demonstrative legacies

Where specified property is given to the legatee, the legacy is specific.

Where the legacy is directed to be paid out of the specified property, it is demonstrative.

The distinction between a specific legacy and a demonstrative legacy is important. A demonstrative legacy is, in its
nature, a general legacy The distinction between a general legacy and a demonstrative legacy is that where a
specific property is indicated out of which the legacy is payable, it becomes a demonstrative legacy.

A demonstrative legacy, is, in its nature, a general legacy, where a specific fund or stock is indicated, out of which
such a legacy is to be paid.

There are three four points of difference between a specific and a demonstrative legacy :

1. A specific legacy is one where specified property is given to the legatee. A demonstrative legacy is one where the
legacy is directed to be paid out of specified property, - a specified fund or stock.

2. A specific legacy is of specific property or debt which is distinguished from all other parts of the testator’s
property, whereas a demonstrative legacy is of a certain sum of money or a certain quantity of any other commodity
which is directed to be paid out of a specific fund or stock.

3. In the case of a specific legacy, the legatee is entitled to have only that specific property. If the property is lost or
does not exist at the testator’s death, the legatee gets nothing. In the case of a demonstrative legacy, if the specific
fund or stock out of which it is directed to be paid, fails, the legatee is not deprived of his legacy. but is permitted
to receive it out of the general assets.

4. If there are sufficient assets to pay all the debts, but not to pay all the legacies, a specific legacy will not abate.
However, a demonstrative legacy is liable to abate, when it becomes a general legacy, by reason of the
insufficiency of the fund out of which it is primarily payable.

Of course, if the assets are not sufficient to pay the testator’s debts, all legacies, specific, general and demonstrative,
will abate.

The points of difference between a specific legacy and a demonstrative legacy can be summarised in a tabular form
as under

DIFFERENCE BETWEEN

SPECIFIC LEGACY

1. In a specific legacy, specified property of the testator is given to the legatee,

2. A specific legacy is a legacy of a specific property or debt which is distinguished from all other properties
of the testator.

3. In the case of a specific legacy, if the property does not exist as part of the testators estate, the legacy is
Seemed.
4. If the assets are sufficient to pay all the testator’s debts, but not all his legacies, a specific bequest does not
abate.

DEMONSTRATIVE LEGACY

1. In a demonstrative legacy, the legacy is directed to be paid out of a specified fund or stock.

2. A demonstrative legacy is a legacy of a certain sum of money or a certain quantity of a commodity directed to be
paid out of a specified fund or stock.

3. In the case of a demonstrative legacy, if the specific fund or stock out of which it is to be paid fails, the
legatee will get it out of the general assets of the testator.

4. A demonstative legacy abates proportionately in case of insufficiency of funds.

Order of payment when legacy is directed to be paid out of a fund which is the subject of specific legacy (S.
151)

Where a portion of a fund is specifically bequeathed and a legacy is directed to be paid out of the same fund, the
portion specifically bequeathed is first to be paid to the legatee, and the demonstrative legacy is to be paid out of the
residue of the fund and, so far as the residue shall be deficient, out of the general assets of the testator.

Illustrations.— A bequeaths to B Rs. 1,000, being part of a debt due to him from W He also bequeaths to C Rs. 1.000
to be paid out of the debt due to him from W The debt due to A from W is only Rs. 1,500; of these Rs. 1,500, Rs.
1,000 belong to B and Rs. 500 are to be paid to C. C is also to receive Rs.500 out of the general assets of the testator.

S. ADEMPTION OF LEGACIES (Ss.152-166 and 179)

ADEMPTION DEFINED. —Ademption may be defined as the failure of a specific bequest or devise because of its
subject-matter not being in existence in specie (i.e. in that very form) at the time of the testator’s death as a part of
his estate. It is only a specific legacy that is liable to ademption. A demonstrative legacy is not subject to ademption.

Thus, if a testator bequeaths his gold ring to A. and later sells the ring or converts it into a bracelet, A will lose the
legacy

A specific gift may be adeemed by the subject-matter of the gift afterwards, during the testator’s life, ceasing to be
part of his estate, or ceasing to conform to the description by which it is given, on account of the testator’s
disposition or conversion or change of investment of the subject of the bequest

S. 152 lays down the general rule regarding ademption of specific legacies. Sections 154 to 166 lay down special
rules for guidance of the Courts on the subject of ademption. As a general rule, in order to complete the title of a
specific legatee to his legacy, the thing bequeathed must, at the testator’s death, remain an specie A specific devise
of land is adeemed if the land is afterwards sold

The definition of ademption is to be found in S. 152, which provides as follows :

If anything which is specifically bequeathed does not belong to the testator at the time of his death, or has been
converted into property of a different kind, the legacy is adeemed, that is. it cannot take effect, by reason of the
subject-matter having been withdrawn from the operation of the will.

(i) A bequeaths to B–
”the diamond ring presented to me by C;
”my gold chain”;
”a certain bale of wool”;
”a certain piece of cloth”;
”all my household goods, which shall be in or about my dwelling house in M. Street in Calcutta, at the time of my
death”
A, in his lifetime,—
sells or gives away the ring;
converts the chain into a cup;
converts the wool into cloth;
makes the cloth into a garment;
takes another house into which he removes all his goods.
Each of these legacies is adeemed

(ii) A bequeaths to B—
The sum of As 1,000 in a certain chest”;
“all the horses in my stable”;
At the death of A, no money is found in the chest and no horse in the stable The legacies are adeemed.

(iii) A bequeaths to B certain bales of goods. A takes the goods with him on a voyage The ship and goods are lost at
sea. and A is drowned The legacy is adeemed.

CASES — Durant v Friend— X bequeathed an article to A Later, he took it with him on a voyage, where the ship
was lost, the article perished and the testator was drowned. Since the article was insured. A donned the insurance
money. The Court held that the bequest was adeemed

Ashburner v Mcquire— X made the following bequest ”To A. now at school, my capital stock of 1,000 in the India
Company’s stock” X afterwards sold the stock. It was held that the bequest was adeemed

Under S 153, ademption can take place only if the legacy is specific. A demonstrative legacy cannot be adeemed, but
must be paid out of the general assets of the testator.

Cases in which ademption takes place (Ss. 154-159 & 162)

The following are live cases in which ademption takes place :

1. Where the thing specifically bequeathed is the right to receive something of value from a third party, and the
testator himself receives it (during his life-time), the bequest is adeemed. (S. 154)

Illus— (i) A bequeaths to B —

”the debt which C owes me
”Rs. 2,000, which I have in the hands of D’ ;
”the money due to me on the bond of E ;
”my mortgage on the Rampur factory”.
All these debts are extinguished in A’s lifetime, some with and some without, his consent. All the legacies are
adeemed.
(ii) A bequeaths to B in his interest in certain policies of life assurance. A, in his lifetime, receives the amount of the
policies. The legacy is adeemed.

In the same way, the receipt by the testator of a part of an entire thing specifically bequeathed operates as an
ademption of the legacy to the extent of the sum so received. (S. 155)

Illus.— A bequeaths to B ”the debt due to me by C.” The debt amounts to Rs. 10,000. C pays to A Rs. 5,000, one-
half of the debt. The legacy is revoked by ademption, so far as regards the Rs. 5,000 received by A.

2. If a portion of an entire fund or stock is specifically bequeathed, the receipt by the testator of a portion of the fund
or stock operates as an ademption only to the extent of the amount so received: and the residue of the fund or stock
is applicable to the discharge of the specific legacy. (S. 156)

illus.— A bequeaths to B one-half of the sum of Rs. 10,000 due to him from W A in his lifetime receives Rs. 6,000,
part of the Rs.10,000. The Rs. 4,000 which are due from W to A at the time of his death belong to B under the
specific bequest.

3. Where stock which has been specifically bequeathed does not exist at the testator’s death, the legacy is adeemed.
(S 158)

illus.— A bequeaths to B —
”my capital stock of 1,000 in East India Stock”;
”my promissory notes of the Central Government for Rs. 10,000 in their 4 per cent loan”.
A sells the stock and the notes. The legacies are adeemed.
4. Where stock which has been specifically bequeathed exists only in part at the testator’s death, the legacy is
adeemed so far as regards that part of stock which has ceased to exist. (S. 159)

Illus.— A bequeaths to B his Rs. 10,000 in the 5 1/2 per cent loan of the Central Government. A sells one-half of his
Rs. 10,000 in the loan in question. One half of the legacy is adeemed

5. Where the thing bequeathed is not the right to receive something of value from a third person. but money or
other commodity which may be received from the third person, and the testator himself receives it, and mixes it up
with the general mass of his property, the bequest is adeemed. (S. 162)

Thus, A bequeaths to B, whatever sum may be received from his claim on C. A receives the whole of his claim, and
mixes it with his property. The legacy is adeemed.

In such a case, if the testator does not mix up such property with his property in general, the legacy is not adeemed
(See below )

Cases in which ademption does not take place (Ss. 160-168 & 170)

In the following seven cases, a legacy is not adeerned

1. A specific bequest of goods under a description connecting them with a certain place is not adeemed by reason
that they have been removed from such place for any temporary cause or by fraud or without the knowledge or
sanction of the testator. (S. 160)
Illus.—(i) A bequeaths to B ”all my household goods which shall be in or about my dwelling-house in Calcutta at the
time of my death.” The goods are removed from the house to save them from fire. A dies before they are brought
back. The legacy is not adeemed.
(ii) A bequeaths to B ”all my household goods which shall be in or about my dwelling-house in Calcutta at the time
of my death” During A’s absence upon a journey, the whole of the goods are removed from the house A dies without
having sanctioned their removal. The legacy is not adeemed

2. The removal of the thing bequeathed from the place in which it is stated in the will to be situated does not
constitute an ademption. where the place is only referred to in order to complete the description of what the testator
meant to bequeath. (S. 161)

Illus.—-(1) A bequeaths to B ”all the bills, bonds and other securities for money belonging to me now lying in my
lodgings in Calcutta.” At the time of his death, these effects had been removed from his lodging in Calcutta The
legacy is not adeemed.

(ii) A bequeaths to B all his furniture then in house in Calcutta.The testator has a house at Calcutta and another at
Chinsurah, in which he lives alternately, being possessed of one set of furniture only, which he removes with himself
to each house At the time of his death, the furniture is in the house at Chinsurah. The legacy is not adeemed

(iii) A bequeaths to B all his goods on board a certain ship then lying in the river Hughli The goods are removed by
A’s directions to a warehouse, in which they remain at the time of A’s death. The legacy is not screamed

3. Where the thing bequeathed is not the right to receive something of value from a third person, but money or other
commodity which may be received from the third person, the receipt of such sum of money or other commodity by
the testator does not constitute an ademption But, as seen above, if he mixes it up with the general mass of his
property, the legacy is adeerned. (S. 162)

Illus.— A bequeaths to B whatever sum may be received from his claim on C A receives the whole of his claim on C,
and sets it apart from the general mass of his property. The legacy is not &deemed.

4. Any changes (i) by operation of law, or (ii) in the course of execution of the provision of any legal instrument
under which the thing bequeathed was held, or (iii) without the knowledge or the sanction of the testator, of the
subject of specific bequest between the date of the will and the testator’s death do not constitute ademption. (Ss.
163-164)

Illus.— (i) A bequeaths to B ”all the money which I have in the 5Vz per cent loan of the Central Government”. The
securities for the 51/2 per cent loan are converted during A’s lifetime into 5 per cent stock. This legacy is not
adeemed

(ii) A bequeaths to B, the sum of Rs. 2,000 invested in Consols in the names of trustees for A. The sum of Rs. 2,000
is transferred by the trustees into A’s own name. This legacy is not adeemed.

(iii) A bequeaths to Bo the sum of Rs. 10,000 in promissory notes of the Central Government which he has power
under his marriage settlement to dispose of by will. Afterwards, in As lifetime, the fund is converted into Consols by
virtue of an authority contained in the settlement. This legacy is not adeemed.

(iv) A bequeaths to B ”all my 3 per cent Consols”. The Consols are, without A’s knowledge. sold by his agent, and
the proceeds converted into East India Stock. The legacy is not adeetned.

5. Where stock which has been specifically bequeathed is lent to a third party on condition that it shall be replaced,
and it is replaced accordingly, the legacy is not adeemed. (S. 165)
6. Where stock specifically bequeathed is sold, and an equal quantity of the same stock is afterwards purchased and
belongs to the testator at his death, the legacy is not adeemed (S. 166)

Thus, for instance, a testator who has 500 shares in X Ltd., bequeaths these shares to his son He then sells away
these shares. Some years later, he again buys 500 shares in X Ltd , which remain with him until he dies. In these
circumstances, the legacy is not adeemed, and the son will get the shares

7. No bequest is deemed to be wholly or partially adeemed by a subsequent provision made by settlement or

otherwise for the legatee. (S. 179)

Illus.— A bequeaths Rs. 20,000 to his son B He afterwards gives to B the sum of Rs. 20,000. The legacy is not
thereby adeemed

(ii) A bequeaths Rs. 40,000 to B, his orphan niece whom he had brought up from her infancy. Afterwards on the
occasion of Us marriage, A settles upon her the sum of Rs.30,000. The legacy is not thereby diminished.

[Note : The New Course prescribed by the University of Mumbai for the Indian Succession Act, ends here
with S. 166.)

T. BEQUESTS SUBJECT TO LIABILITIES (Ss. 167-170)

The following are four rules laid down in Ss 167 to 170, in connection with bequests made subject to liabilities.

1. If the specifically bequeathed legacy is subject to any pledge, lien or any encumbrance at the death of the testator,
then, unless a contrary intention appears by the will, the legatee must, of he accepts the bequest, accept it subject to
such pledge or encumbrance, and shall be liable to make good the amount such pledge or encumbrance. (S. 167)

For the purposes of S. 167, a contrary intention is not to be inferred from any direction which the will may contain
for the payment of the testator’s debts generally.

Illus.— (i) A bequeaths to B the diamond ring given to him by C. At A’s death, the ring is held in pawn by 0, to
whom it has been pledged by A. It is the duty of A’s executors, if the state of the testator’s assets will allow them,
to allow B to redeem the ring.

(ii) A bequeaths to B a zamindari, which at A’s death is subject to a mortgage for Rs. 10,000, and the whole of
principal sum. together with interest to the amount of Rs. 1,000, is due at A’s death B, if he accepts the bequest,
accepts it subject to this charge and is liable, as between himself and A’s estate, to pay the sum of Rs. 11,000 thus
due.

2. Where anything is to be done to complete the testator’s title to the thing bequeathed, it is be done at the cost of
the testator’s estate. (S 168)

Illus— (i) A, having contracted in general terms for the purchase of a piece of land at a certain price, bequeaths it to
B, and dies before he has paid the purchase-money The purchase-money must be made good out of A’s assets

(ii) A, having contracted for the purchase of a piece of land for a certain sum of money, one-half of which is to be
paid down and the other hall secured by mortgage of the land, bequeaths it to B, and dies before he has paid or
secured any part of the purchase-money. One-half of the purchase-money must be paid out of A’s assets.
3. Where there is a bequest of any interest in immovable property In respect of which—
(a) payment in the nature of land revenue; or (b) payment in the nature of rent

has to be made periodically,

the estate of the testator is liable (as between such estate and the legatee) to make good such payments (or a
proportion of them, as the case may be) up to the day of his death. (S. 169)

Illus— A bequeaths to B a house, in respect of which Rs. 365 are payable annually by way of rent. A pays his rent at
the usual time, and dies 25 days after. A’s estate will make good Rs. 25 in respect of the rent.

4. In case of a specific bequest of stock (i.e. shares) of a company, if there is any call or other payment due before
the death of the testator, the testator’s estate is liable, and if the call is after the death, the legatee has to pay the
same, in the absence of any direction in the will. (S. 170)

Illus.— (i) A bequeaths to B his shares in a certain company. At A’s death, there was due from him the sum of Rs.
100 in respect of each share, being the amount of a call which had been duly made and the sum of five rupees in
respect of each share, being the amount of interest which had accrued due in respect of the call. The payments
must be borne by A’s estate.

(ii) A has agreed to take 50 shares in an intended joint-stock company, and has contracted to pay up Rs. 100 in
respect of each share, which sum must be paid before his title to the shares can be completed. A bequeaths these
shares to B The estate of A must make good the payments which were necessary to complete As title.

(iii) A bequeaths to B his shares in a certain company. B accepts the legacy. After A’s death, a call is made in respect
of the shares. B must pay the call.

(iv) A bequeaths to B his shares in a joint-stock company B accepts the bequest. Afterwards, the affairs of the
company are wound up and each shareholder is called upon for contribution. The amount of the contribution must be
borne by the legatee

(v) A is the owner of ten shares in a company. At a meeting held during his lifetime, a call is made of fifty rupees per
share, payable by three instalments. A bequeaths his shares to B. and dies between the day fixed for the payment of
the first instalment and the day fixed for the payment of the second instalment, and without having paid the first
instalment A’s estate must pay the first instalment, and B, if he accepts the legacy, must pay the remaining
instalments

U. BEQUESTS OF THINGS DESCRIBED IN GENERAL TERMS (S. 171)

If there is a bequest of something described in general terms, the executor must purchase for the legatee what may
reasonably be considered to answer the description (S 171)

Illus.—(i) A bequeaths to B a pair of carriage-horses or a diamond ring. The executor must provide the legatee with
such articles if the state of the assets will allow it.

(ii) A bequeaths to B ”my pair of carriage-horses”. A had no carriage-horses at the time of his death. The legacy fails

(Note that in this illustration, the bequest fails because the description is not general, but particular. (As seen earlier,
a specific bequest fails if property of that description does not belong to the testator at the time of his death.)
PROBLEM.— A bequeaths ’a television set to B.” A never had a television set. Can B compel the executor to buy a
TV set out of As estate and give it to B

Ans.— If the state of A’s assets allow it, the executor must provide B with a television set. (See S. 171, above)

V. BEQUESTS OF INTEREST OR PRODUCE OF A FUND (S. 172)

Where the interest or produce of a fund is bequeathed, and the will affords no indication of an intention that the
enjoyment of the bequest is to be of limited duration,—the principal, as well as the interest, belongs to the legatee.
(S. 172)

Illus.— (i) A bequeaths to B the interest of his 5 per cent promissory notes of the Central Government There is no
other clause in the will affecting those securities. B is entitled to A’s 5 per cent promissory notes of the Central
Government.

(ii) A bequeaths the interest of 5 per cent promissory notes of the Central Government to B for his life, and after his
death, to C. B is entitled to the interest of the notes during his life. and C is entitled to the notes upon B’s death.

(iii) A bequeaths to B the rents of his lands at X. B is entitled to the lands.

Thus, in a case where a gift of the interest of a certain fund was to be enjoyed by the legatees from generation to
generation, it was held to be an absolute gift of the fund itself. (Administrator v. Money. 15 Mad 448)

In another case, there was a bequest of the income of certain property to A, to be enjoyed by him for his
maintenance, and it was provided that if he turned out to be of bad character, certain other persons were directed to
take the property. In fact, A was of good character, arid it was held that, under the circumstances, the testator did not
intend to limit the duration of the enjoyment of the income of the property to A, and that, therefore, he was entitled
to the income as well as the corpus of the property. (Mannu v. Lachman. AIR 1932 All. 476)

But, if there is a clear intention of the testator to the contrary, the corupus or the principal would not go to the
legatee. Thus, a bequest of the profits of an estate to Hindu widow for life, with the remainder absolutely to the
testator’s nephew, would confer only a life-estate on the widow (Mandakini v Arunbala, 3 CU J 515)

W. BEQUESTS OF ANNUITIES (Ss. 173-176)

An annuity is a yearly payment of a certain sum of money granted to another for life or for years, charging the
person of the grantor only.

An annuity is defined in Halsbury as -a certain sum of money payable yearly as a personal obligation of the grantor
or out of property not consisting exclusively of land”.

In Re Dowding, it was observed : ”No doubt, for some purposes, an annuity is a legacy —a legacy to be paid by
instalments. But an annuity is a legacy for all purposes, and in ordinary phraseology, an annuity is distinguished
from a legacy A legacy is a sum to which the legatee becomes entitled to be paid down; an annuity is a sum which is
to be severed by setting apart a portion of the personal property of the estate and has to be paid in the shape of an
annual payment, and is not in that sense, a legacy”.

There are four rules relating to bequest of annuities :

1. An annuity created by a will is, in the absence of a contrary intention, payable for life only. (S. 173)

Illus.— (i) A bequeaths to B Rs.500 a year. B is entitled during his life to receive the annual sum of Rs. 500.

(ii) A bequeaths to B the sum of Rs. 500 monthly. B is entitled during his life to receive the sum of Rs. 500 every
month.

(iii) A bequeaths an annuity of Rs. 500 to B for life and on B’s death to C. B is entitled to an annuity of Rs. 500
during his life.C, if he survives B, is entitled to an annuity of Rs. 500 from B’s death until his own death.

2. Where, however, the will directs that an annuity be provided out of the proceeds of property or out of property
generally, or where money bequeathed is to be invested in the purchase of an annuity, the legatee takes a vested
interest in the legacy on the testator’s death, and he is entitled, at his option, to have an annuity purchased for him or
receive the money appropriated for that purpose by the will. (S. 174)

Illus.— (i) A, by his will, directs that his executors shall, out of his property, purchase an annuity of Rs. 1,000 for
B. B is entitled, at his option, to have an annuity of As 1,000 for his life purchased for him or to receive such a sum
as will be sufficient for the purchase of such an annuity.

(ii) A bequeaths a fund to B or his life, and directs that after Bs death, it shall be laid out in the purchase of an
annuity for C B and C survive the testator. C dies in B’s life-time. On B’s death, the fund belongs to the
representative of C.

3. If the assets of the testator are not sufficient to pay all legacies, an annuity abates with pecuniary legacies in the
same proportion. (S. 175)

4. Where there is a bequest of an annuity and the residue, the annuity is to be satisfied first. (S 176)

X. LEGACIES TO CREDITORS AND PORTIONERS (Ss. 177-179)

As regards legacies to creditors and portioners, the following three rules may be noted :

1. Where a debtor bequeaths a legacy to his creditor, and it does not appear from the will that the legacy is meant as
a satisfaction of the debt—the creditor is entitled to the legacy as well as to the amount of the debt. (S. 177)

S. 177 enacts a departure from the English rule of equity on the point. The rule established by the Courts of Equity
in England is that where a debtor bequeaths to his creditor a legacy equal to or greater than the amount of the debt,
it is to be presumed, unless there is an intention to the contrary, that the legacy was meant as a satisfaction of that
debt. In India, this doctrine of satisfaction of debt by legacies is done away with by this section.

2. Where a parent, who is under a contractual obligation to provide a portion for a child, fails to do so, an afterwards
bequeaths a legacy to the child, and does not intimate by his will that the legacy is meant as a satisfaction of the
portion—the child is entitled to receive the legacy as well as the portion. (S. 178)

Illus— A, by articles entered into in contemplation of his marriage with B. covenanted that he would pay to each of
the daughters of the intended marriage, a portion of As 20,000 on her marriage. This covenant having been broken,
A bequeaths Rs. 20,000 to each of the married daughters of himself and B. The legatees are entitled to the benefits of
this bequest in addition to their portions.
PORTION — A ”portion” is a part of a person’s estate given to one to whom the donor stands in loco parentis. It is
called ’advancement if the donor is the father of the child.

ADVANCEMENT.— It is a provision made by a father in his lifetime for the benefit of his child. 11 is made by a
document inter vivos, usually by a deed for settlement. Mere casual payments to relieve a child from temporary
difficulty is not an advancement, but. sums given to start a child in life or to make a provision for him constitute
advancement.

PORTION AND ADVANCEMENT DISTINGUISHED.— The distinction between the terms ’portion’ and
’advancement is that (i) A ’portion’ is advancement for a particular purpose, whereas ’advancement is for the
general benefit of the child. (ii) Advancement is made by the lather only, whereas portion is made by any person
standing in loco parentis to a child. Under S 178 (above), where a parent is under an obligation by contract to
provide a portion for a child, and fails to do so, but bequeaths a legacy to the child, the child is entitled to the legacy
as well as the portion.

3. Under S. 179, no bequest is wholly or partially adeemed by a subsequent provision made by settlement or
otherwise for the legatee.

Illus,— (i) A bequeaths Rs. 20,000 to his son B. He afterwards gives to B the sum of As 20,000 The legacy is not
thereby adeemed.

(ii) A bequeaths As 40,000 to B his orphan niece, whom he had brought up from her infancy. Afterwards, on the
occasion of /3’s marriage, A settles upon her the sum of Rs. 30,000. The legacy is not thereby diminished.

Y . ELECTION (Ss. 180-190)

What is election (S. 180)

Normally, a testator can bequeath only that property which belongs to him. However, what if the testator gives a
legacy of property which does not belong to him? This question is answered by the doctrine of election.

Where a person, by his will, professes to dispose of something which he has no right to dispose of, the person to
whom the thing belongs has to elect either to confirm such disposition or to dissent from it; and in the latter case,
(i.e., if the owner dissents), he must give up any benefit provided for him by the will

How an interest so released devolves (Ss. 181-182)

An interest so relinquished devolves as if it had not been disposed of by the will, subject, to the charge of making
good to the disappointed legatee, the amount or value of the gift attempted to be given to him by the will. This rule
applies whether the testator does or does not believe that which he professes to dispose of by his will to be his own.

(i) The farm of Sultanpur was the property of C. A bequeathed it to B, giving a legacy of Rs. 1,000 to C. C has
elected to retain his farm of Sultanpur, which is worth As 800. C forfeits his legacy of Rs. 1,000, of which Rs. 800
go to B and the remaining Rs. 200 fall into the residuary bequest or devolve according to the rules of intestate
succession, as the case may be.

(ii) A bequeaths an estate to B in case B’s elder brother (who is married and has children) shall leave no issue living
at his death. A also bequeaths to C a jewel, which belongs to B. B must elect to give up the jewel. or to lose the
estate

(iii) A bequeaths to B Rs. 1,000, and to C an estate which will, under a settlement, belong to B if his elder brother
(who is married and has children) shall leave no issue living at his death B must elect to give up the estate or to lose
the legacy

(iv) A, a person of the age of 18, domiciled in India. but owning real property in England to which C is heir at law,
bequeaths a legacy to C and, subject thereto, devises and bequeaths to B ”all my property whatsoever and
wheresoever”, and dies under 21 The real property in England does not pass by the will. C may claim his legacy
without giving up the real properly in England.

REQUISITES OF THE DOCTRINE OF ELECTION — The foundation of the doctrine of election is the intention
of testator The following are the four essential requisites of election

(a) The testator must, by his will, give something of his own to the person whose property he purports to dispose of
to another If he gives nothing of his own to the person whose property he professes to dispose of, no case of election
arises.

(b) The property purported to be given to the stranger by the will of the testator must be something not belonging
to the testator. but belonging to the legatee who is called upon to elect, whether the testator knows this or not. If
the legatee does not claim such property as his own property, no question of election arises

(c) The doctrine of election is applicable to all types of interests: whether immediate, remote, contingent, of value,
or not of value, and also to every species of property, moveable or immoveable There is no distinction for the
purpose of election between a specific legatee and a residuary legatee, or between legatees and next-of-kin of the
testator

(d) The doctrine of election is not applicable when the bequest is invalid on account of incapacity to bequeath by
reason of infancy, insanity. etc The doctrine is not available to cure an illegality

A bequest for a person’s benefit is, for the purpose of election, the same thing as a bequest made for himself.

Illustration- The farm of Sultanpur Khurd being the property of B, A bequeathed it to C. and bequeathed another
farm called Sultanpur Buzurg to his own executors, with a direction that it should be sold and the proceeds applied
in payment of B’s debts. B must elect whether he will abide by the will, or keep his farm of Sultanpur Khurd in
opposition to it.

Three rules in a case of election (Ss. 184-186)

Ss 184, 185 and 186 lay down three rules in the case of an election Each has an illustration which explains the
section clearly

1. A person taking no benefit directly under a will, but deriving a benefit under it indirectly, is not put to his election.
(S. 184)

Illus— The lands of Sultanpur are settled upon C for life, and after his death upon D, his only child. A bequeaths
the lands of Sultanpur to B, and Rs. 1,000 to C. C dies intestate shortly after the testator, and without having made
any election. D takes out administration to C, and as administrator, elects on behalf of Cs estate to take under the
will. In that capacity, he receives the legacy of Rs 1,000 and accounts to B for the rents of the lands of Sultanpur
which accrued after the death of the testator and before the death of C. In his individual character, he retains the
lands of Sultanpur in opposition to the will

2. A person who in his individual capacity takes a benefit under a will may, in another character, elect to take in
opposition to the will. (S. 185)

illus.— The estate of Sultanpur is settled upon A for life, and after his death upon B. A leaves the estate of Sultanpur
to 0, and Rs. 2,000 to B, and Rs. 1,000 to C, who is B’s only child. B dies intestate shortly after the testator. without
having made an election. C takes out administration to B, and as administrator, elects to keep the estate of Sultanpur
in opposition to the will, and to relinquish the legacy of Rs. 2,000. C may do this, and yet claim his legacy of Rs.
1,000 under the will.

3. Where a particular gift is expressed in the will to be in lieu of something belonging to the legatee which is also
disposed of by the will, then, if the legatee claims that thing, he must relinquish the particular gift, but he is not
bound to relinquish any other benefit given to him by the will. (S. 186)

Illus.— Under A’s marriage-settlement, his wife is entitled, if she survives him, to the enjoyment of the estate of
Sultanpur during her life. A, by his will, bequeaths to his wife an annuity of Rs. 200 during her life, in lieu of her
interest in the estate of Sultanpur, which estate he bequeaths to his son. He also gives his wife a legacy of Rs.1,000.
The widow elects to take what she is entitled to under the settlement. She is bound to relinquish the annuity, but not
the legacy of Rs.1,000.

What constitutes election (Ss. 187-188)

1. Acceptance of a benefit given by a will constitutes an election by the legatee to take under the will, if he had
knowledge of his right to elect and of those circumstances which would influence the judgment of a reasonable man
in making an election, or if he waives inquiry into the circumstances. (S. 187)

(i) A is the owner of an estate called Sultanpur Khurd, and has a life-interest in another estate called Sultanpur
Buzurg to which, upon his death his son X will be absolutely entitled The will of A gives the estate of Sultanpur
Khurd to B, and the estate of Sultanpur Buzurg to C. B, in ignorance of his own right to the estate of Sultanpur
Buzurg, allows C to take possession of it, and enters into possession of the estate of Sultanpur Khurd. B has not
confirmed the bequest of Sultanpur Buzurg to C.

(ii) B, the eldest son of A, is the possessor of an estate called Sultanpur. A bequeaths Sultanpur to C, and to B the
residue of A’s property. B having been informed by A’s executors that the residue will amount to Rs. 5,000, allows C
to take possession of Sultanpur He afterwards discovers that the residue does not amount to more than Rs. 500. B
has confirmed the bequest of the estate of Sultanpur to C

2. Such knowledge or waiver of inquiry is to be presumed if the legatee has enjoyed for two years, the benefits
provided for him by the will without doing any act to express dissent.

Such knowledge or waiver of inquiry may be inferred from any act of the legatee which renders it impossible to
place the bequest in the same condition as if such act had not been done. (S. 188)

illus.— A bequeaths to B an estate to which C is entitled, and to C a coal mine. C takes possession of the mine and
exhausts it. He has thereby confirmed the bequest of the estate to B

Period for election (Ss. 189-190)

Sections 189 and 190 prescribe the time-limit within which the legatee should either confirm or disown the bequest
It provides that if the legatee does not, within one year after the death of the testator, signify to the testator’s
representatives, his intention to confirm or to dissent from the will, the representatives must require him to make his
election: and, if he does not comply with such requisition within a reasonable time, he is to be deemed to have
elected to confirm the will. In case of his disability, the election is to be postponed until it is made by some
competent authority.

Difference between English and Indian law of Election :

1. Under the English law, a legatee, by electing against the will, does not incur a forfeiture of the benefit conferred
on him, but is merely bound to make compensation out of it to the person disappointed by his election Under this
Act, the rule is that the refactory legatee forfeits the legacy. Thus, in England, the doctrine of compensation is
applied, whereas in India, the law is based on the doctrine of forfeiture

2 There is no time fixed by law for making an election in England. In India, S 189 prescribes a one-year period for
this purpose.

Z. GIFTS IN CONTEMPLATION OF DEATH (Donatio mortis causa) (S. 191)

A gift is said to be made in contemplation of death when a person (i) who is ill and (ii) expects to die shortly of his
illness, (iii) delivers to another. (iv) the possession of any moveable property to keep as a gift in case the donor dies
of that

Such a gift can be made of any moveable property which the donor could dispose of by will

Whether It can be resumed [S. 191(3)]

Such a gift can be resumed by the donor at any time before his death

When such a gift fails [S. 191(3)]

Such a gift will not take effect if (i) the donor recovers from the illness during which it was made; or (ii) if he
survives the person to whom it was made

Illus— (i) A. being ill, and in expectation of death, delivers to I3, to be retained by him in case of A’s death—

a watch –
a bond granted by C to A
a bank-note :
a promissory note of the Central Government endorsed in blank :
a bill of exchange endorsed in blank :
certain motgage-deeds.
A dies of the illness during which he delivered these articles.
B is entitled to —
the watch :
the debt secured by Cs bond :
the bank-note :
the promissory note of the Central Government :
the bill of exchange :
the money secured by the mortgage-deeds.

(ii) A, being ill, and in expectation of death, delivers to B, the key of a trunk or the key of a warehouse in which
goods of bulk belonging to A are deposited, with the intention of giving him the control over the contents of the
trunk, or over the deposited goods, and desires him to keep them in case of A’s death. A dies of the illness during
which he delivered these articles. B is entitled to the trunk and its contents or to A’s goods of bulk in the warehouse.

(iii) A, being ill, and in expectation of death, puts aside certain articles in separate parcels and marks upon the
parcels respectively the names of B and C. The parcels are not delivered during the life of A. A dies of the illness
during which he set aside the parcels. B and C are not entitled to the contents of parcels.

PROBLEM.— A being ill, and in expectation of death, delivers to B the keys of his safe in a Bank, with the intention
of giving his control over the contents of the safe, and desires him to keep them in case of his death. A dies in the
course of the very illness. Can B claim the contents of the safe to the exclusion of the lawful heirs of A ?

Ans.— Yes; it amounts to donatio mortis causa

REQUISITES OF S. 191.—

The following are the five important requisites of a gift made in contemplation of death .

1. The property must be moveable, and such as the donor could dispose of by will. Any moveable property which a
man may dispose of by will may be disposed of by a gift mortis cause. Under this Act, there is no provision for a
donatio mortis causa of immoveable property.

Sec. 191 is wider than the English law as regards moveables. Bank-notes and promissory notes and other negotiable
instruments which pass by delivery may be valid subjects of donatio mortis cause.

2. The gift must be by a person in contemplation, though not necessarily in expectation, of death. A gift made in
contemplation of suicide is not a valid donatio mortis causa.

3. The gift must be such as is to take effect only on the death of the donor. The death of the donor must ensue. It does
not take effect if the donor recovers from the illness or if he survives the donee.

4. There must be delivery of the subject of donation The deceased should, at the time of the delivery, not only part
with the possession but also with the dominion over the subject of the gift.

In Deigofiee v. Fader, a lady in contemplation of death gave her bag and its contents—jewellery, trinkets, cash and
an envelope enclosing a pass-book of a bank to the plaintiff. The pass-book showed £ 933 to the credit of the
account of the deceased It was held that there was a valid donatio as to jewellery, trinkets, etc., but not to the money
in the bank.

Moreover, such delivery must be to the donee himself, or to someone else for the donee’s use. (Ward v. Turner, 2 yes.
Sen 431)

5. The gift must be made under such circumstances as to show that the thing is to revert to the donor in case he
should recover.
A donatio mortis causa may be made orally or in writing, with or without registration. But delivery is absolutely
essential.

PROBLEM.— A. being ill, and in expectation of death, delivers to a diamond ring to be retained by him in case of
A’s death. A recovers from his illness, but dies of typhoid fever six months later Can C. who is A’s only son and heir,
claim the ring from B 9

Ans.— Yes. If A recovers from the illness during which it was made, the gift cannot take effect, even if A dies later
of that, or any other, illness. Therefore, A’s son, C is entitled to the ring as A’s only heir.

DONATIO MORTIS CAUSA’ AND ’LEGACY’ DISTINGUISHED.— Both resemble each other in that both are
ambulatory, i.e., revocable at the testator’s pleasure.

They differ from each other in two respects :

1. Probate is not necessary in case of the former as it is in case of a legacy, since the gift becomes effective on
delivery.

2. The executor’s assent is not required to perfect the donee’s title, as it is required in case of a legacy.

DANATIO MORTIS CAUSA’ AND ’GIFT DISTINGUISHED

1. The former is revocable, whereas a gift, once validly made, becomes irrevocable.

2. Upon deficiency of assets, the former is liable to the testator’s debts, whereas no such question can arise in case of
a gift.

DIFFERENCE BETWEEN DONATIO MORTIS CAUSA AND MARZUI-MAUT.— Under Mohammadan Law, a
Marz-ul-Maut (Le. a deathbed gift) is a valid gift, provided all conditions of a gift prescribed by Mohammadan law
are fulfilled. When made to a non-heir, such a gift cannot take effect beyond one third of the donor’s estate (after
payment of debts and funeral expenses), unless all the heirs give their consent. When made to an heir, it is altogether
invalid, unless all the other heirs consent thereto.

The following are the important points of difference between the two 1. The provisions relating to Marz-ul-Maut
apply to Muslims only; S. 191 of the Indian Succession Act applies to non-Muslims.

2. Under the Indian Succession Act (S. 191) only movable property can be disposed of by donatio mortis causa.
Under Mohammadan Law, on the other hand, any property, movable or immovable, can be the subject-matter of
Marz-ul-Maut.

3. S. 191 of the Indian Succession Act does not impose any limitation as regards the persons to whom such bequests
can be made (e.g. heirs or non-heirs); nor is there any limitation as regards the extent to which property can be
given. Under Mohammedan law, on the other hand, there are limitations both as to persons and the extent of the
gift, as stated above.
CHAPTER VII

PROTECTION OF PROPERTY OF DECEASED (Ss. 192-210)

OBJECT.— The object of this Chapter is to provide a summary procedure for the protection of the property of the
deceased in cases of dispute as to succession. It is in the nature of an interlocutory proceeding, calling upon the
Court to determine who has the right to possession, pending the final determination of the right of the parties in a
regular suit.

A.— PROCEDURE FOR OBTAINING RELIEF AGAINST WRONGFUL POSSESSION (Ss. 192, 194, 201,
205 — 210)

1. Application by party aggrieved (Ss. 192 & 205)

If any person dies, leaving property, moveable or immoveable. any person claiming a right by succession thereto or
to any portion thereof, may make an application to the District Judge of the district where any part of the property is
found or situate, for relief—either after actual possession has been taken by another person. or when forcible means
of seizing possession are apprehended.

Any agent. relative or near friend, or the Court of Wards in cases within their cognizance, may, in the event of any
minor, or any disqualified or absent person being entitled by succession to such property as aforesaid, make such an
application for relief

An application under this Chapter to the District Judge must be made within six months of the death of the person
whose property is claimed by right in succession.

This Chapter was enacted in order to meet cases of wrongful possession or disturbance of possession, under
pretended claims of right and to discourage the employment of force and fraud Also, the decision of the Judge is not
to be of such a nature as to supersede the necessity of a regular suit. The applicant is left to the ordinary remedy by
suit, unless he shows that, if so left, he is likely to be materially prejudiced : Jasoda Koonwar v. Gouree Byjnath. (6
W. R. Mis, 53)

It is to be noted, in this connection, that S 209 clearly lays down that, in such a proceeding, the decision has no
other effect than that of settling the question of actual possession, and is not subject to any appeal or review

The provisions of this Chapter do not apply to the case of a family governed by Mitakshara law. (Bua Ditta v Sahib
Diyal, A IA 1938 Lah. 753) This is so because on the death of a member of a Hindu family governed by Mitakshara
law, the other members take the properly by survivorship. and not by succession_ (Jasoda Koonwar v. Gouree
Byjnath)

2. Procedure to be followed by the District Judge (Ss. 193, 194 201)

(a) The District Judge examines the applicant on oath, and may make such further inquiry as to whether there is
sufficient ground for believing that the party in possession, or taking forcible means for seizing possession, has no
lawful title, and that the applicant is really entitled to the property, and is likely to be materially prejudiced if left to
the ordinary remedy of suit, and that the application is made bona fide : S 193.

This section lays down the preliminaries to be observed by the Judge on receipt of the application. The provisions
of this section must be strictly complied with; otherwise the Court has no jurisdiction to apply the provisions of this
Chapter. (Sato Koer v. Gopal Sahu, 12 C.W.N. 65)

(b) If satisfied that there is sufficient ground for believing, but not otherwise. the Judge summons the party
complained of, and gives notice of vacant or disturbed possession, by publication, and after expiry of a reasonable
time, determines summarily the right to possession and delivers possession accordingly.

The Judge also has the power to appoint an officer to take an Inventory of effects, and seal or otherwise secure the
same, upon being applied to for the purpose, without delay, whether the Judge has concluded the inquiry
necessary for summoning the party complained of or not : S 194.

Pending custody of the property by the curator (i.e., the person appointed by the Court), the District Judge may
make reasonable allowances to appoint owners, subject to repayment in case they fail to prove their title : S. 201.

The Madhya Pradesh High Court has held that the recording of satisfaction on the grounds specified in S. 193 is a
condition precedent to the issue of summons under S. 194. Therefore, if the Court, without recording its satisfaction
(as required by the Act), orders the issuance of summons, it would be acting contrary to the provisions of S. 194 of
the Act. (Vikram Singh v. Krishan Singh Jadev & Others, A.I.R. 1979 M.P 145)

3. Effect of the decision (S. 209)

The decision of the Judge has no other effect than that of settling the actual possession; but for this purpose, it is
declared to be final, and is not subject to any appeal or review : S. 209.

The High Court has no power of revision over the proceedings of the District Court under this Chapter, except as
provided herein. But, such an order must be a legal order, and so, a totally illegal proceeding or order would
always be subject to revision by the High Court. Where, however, the District Court has exercised its power legally
under this Chapter, then however erroneous its procedure or unjust or Improper its order, the High Court has
no power of revision : Khaja Kutbuddin v. Khaja Feijuddin 2 N.L.R. 72.

B. — CURATOR (Ss. 195-200 & 203)

1. When appointed (S. 195)

If it appears, upon inquiry, that danger is apprehended of the misappropriation or waste of the property before the
summary proceeding can be determined, and that the delay in obtaining security from the party in possession is
likely to expose the party out of possession to considerable risk, the District Judge may appoint one or more
curators whose authority is to continue according to the terms of their appointments, and in no case beyond the
determination of the summary proceeding and the confirmation or delivery of possession in consequence thereof : S.
195.

2. His powers (Ss. 196-197 & 200)

A curator has three powers :

1. He has the power to take possession of, and manage, the property and may take security to prevent
misappopriation or waste thereof : S. 196.

2. He can recover debts and rents (if expressly empowered), and all payments made to him are valid and have the
effect of discharging the person making them : S 197.
3. He may file and defend suits relating to the property of which he is curator S. 200.

3. His duties (Ss. 191, 202 & 203)

The curator’s duties are mainly two :

1. He has to give security, and the Court may give him remuneration, not exceeding five per cent out of moveable
property and a reasonable amount from the annual profits of immoveable property : (S. 198)

2. He has to file monthly accounts in abstract, and must on expiry of each period of three months, if his
administration lasts so tong, and upon giving up the possession of the properly. file a detailed account of his
administration to the satisfaction of the District Judge S 202

Examining the scope of S. 202 of the Act, the Calcutta High Court has observed that a Court, in exercising its
jurisdiction under this section, is acting in pursuance of the testamentary and intestate jurisdiction with which it is
vested, and not in pursuance of its ordinary original civil jurisdiction. As such, the Court cannot determine any
disputed question of title, the jurisdiction under that section being confined to issue of directions to the executor
relating to the management of the estate. (Rani Roy & Others v. Saileshnath Roy Others, AIR. 1978 Cal. 147)

If it is found that the accounts of the curator are in arrears, or that they are erroneous or incomplete, or if the curator
does not produce them whenever he is ordered to do so by the District Judge, he becomes punishable with fine not
exceeding one thousand rupees for every default : S. 203(2).
CHAPTER VIII

REPRESENTATIVE TITLE TO PROPERTY OF DECEASED ON SUCCESSION

(Ss. 211-216)

1. Character and property of executor or administrator (S. 211)

If a person dies leaving property, there must be. in law, some legal representative of the deceased who can legally
deal with the property S 211, therefore, enacts that an executor or an administrator is the legal representative of the
deceased and all his property vests in him

In other words, upon the death of a person. all his property devolves upon his legal representatives, that is to say.
upon the executor, if the person has died leaving a will and appointing an executor, or upon the administrator, if the
person has died intestate (1.8., without leaving a will). The property bequeathed by the testator vests in the legatee
only when the consent of the executor under Sec 332 is given

An executor or administrator is not the absolute owner of the property of the deceased, in the sense of being the
beneficial owner thereof, the property vests in him only for the purpose of representation. He holds the property in
autre droit, viz., as the minister or dispenser of the property of the deceased. An 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 fulfil in the
course of his office as executor.

When the deceased is a Hindu, Muslim, Buddhist, Sikh, Jain or Parsi or an exempted person, no property of the
deceased person which would otherwise have passed by survivorship to some other person vests in the executor or
administrator : S 211(2)

The Calcutta High Court has held that as the executor derives his title from the will, immediately after the testator’s
death, his property vests in the executor. In the words of the Court, ”the law knows no interval between the testator’s
death and the vesting of the property”. (Bali Ram Dhote v. Bhupendra Nath Banerjee 8, Others, A.I.R. 1978 Cal.
559)

Difference between Executor and Administrator

There are five points of difference between an executor and an administrator :

1. Whereas the executor is appointed by the maker of the will, an administrator can be appointed only by a
competent Court.

2. Since an executor derives his title from the will, all the property of the deceased vests in him from the date of the
testator’s death. On the other hand, an administrator derives his title as a result of a judicial proceeding (ie., grant of
letters of administration), and the property vests in him only on the grant being issued to him.

3. An executor can give a valid discharge before probate is granted. An administrator cannot do so.

4. If a person dies leaving a will, probate can be granted after seven clear days after his death. In case a person
dies intestate, the corresponding period for grant of letters of administration is fourteen days.

5. As regards the law of limitation for filing of suits, in case of an executor, time begins to run from the date of the
testator’s death, whereas in the case of an administrator, time will run from the day the grant is made.
2. Right, title, etc., to a deceased’s property, when established (Ss. 212-213)

(i) S. 212 enacts that no right to the property of an intestate (other than a Hindu, Muslim, Buddhist, Jam, Sikh,
Indian Christian or Parsi) can be established unless letters of administration have first been granted.

(ii) S. 213 enacts that—

(1) No rights as executor or legatee can be established in any Court of Justice, unless a Court of competent
jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of
administration with the will or with a copy of an authenticated copy of the will annexed.

(2) This section does not apply in the case of wills made by Muslims, and applies only —

(i) in the case of wills made by Hindu. Buddhist, Sikh or Jain, where such wills are of the classes specified in clauses
(a) and (b) of section 57; and

(ii) in the case of wills made by any Parsi dying after the commencement of the Indian Succession (Amendment)
Act, 1962, where such wills are made within the local limits of the ordinary civil jurisdiction of the High Courts at
Kolkata, Chennai and Mumbai. and where such wills are made outside those limits, in so far as they relate to
immoveable property situate with those limits S. 213

Ss. 212-213 SCOPE.— S. 212 applies to case of intestacy. Section 213 applies when there is a will. In cases of
intestacy. section 212 enacts that if any person wants to establish that he has a right to any part of the property of the
intestate, such a right cannot be established unless letters of administration are first taken out to the estate of the
intestate.

The principle underlying S 212 is that in the case of a person governed by this Act, the letters of administration are
compulsory, the estate of the intestate is unrepresented without the grant and any decree that would be passed in
such a case would be a nullity. The same remarks apply to S 213 also.

3. Probate, when necessary

Probate is necessary in the following two cases

1 When the will or codicil is of Europeans, East Indians. Armenians, Jews, Indian Christians and Parsis. As
regards Parsis, this is subject to Section 213(2) of the Act.
2 In case of wills and codicils of Hindus. Buddhists, Sikhs or Jains made on or after 1st September 1870, within
Kolkata. Chennai and Mumbai, and wills made outside these places, in so far as they relate to immoveable property
within such places

Probate when not necessary

Probate is not, however, necessary in the following seven cases :

1 No probate is necessary in the case of wills of Hindus, Jains, Smiths & Buddhists made before 1st September
1870,

2. No probate is necessary of the wills of Hindus, Jains, Sikhs and Buddhists falling under Section 57(c).
3 Although it is not obligatory to obtain probate of the will of a Hindu in any area beyond the towns of Kolkata,
Chennai and Mumbai, a District Judge may grant probate of such wills under Section 264

4 A probate of the will of a Muslim is not necessary_ Such a will may be tendered in evidence and proved in any
proceeding without a probate being obtained.

5. No probate is necessary for a person claiming an appointment as a guardian under a will.

6. No probate is necessary in the case of wills made by Hindus of Punjab relating to immoveable property situated
in Punjab.

7. No probate is necessary in the case of wills made by a Parsi, except in the case of wills specified in S. 213(2)
(ii).

When Letters of Administration necessary

Letters of Administration are necessary in the following three cases

1. Letters of Administration are necessary in cases of intestacy of Europeans, East Indians, Armenians and Jews.
2. Letters of Administration were necessary in the cases of intestacy of Native Christians upto 1901. (After that
year, the application of S. 212 was excluded as regards such persons.)
3. Letters of Administration are necessary to recover a debt under S. 214.

When Letters of Administration not necessary

Letters of Administration are not necessary in the following four cases

1. Letters of administration are not necessary in the case of intestacy of a Hindu, Muslim, Buddhist, Sikh, Jain or
Parsi.

2. Letters of administration are not necessary in respect of math property.

3. After 1901, Letters of Administration are not necessary in cases of intestacy of Indian Christians.

4. If a person dies without leaving heirs, and his estate devolves upon the Crown, Letters of Administration are not
necessary

4. Proof of representative title of condition precedent to recovery through the Courts of debts from debtors of
deceased persons (Ss. 214-216)

Often it happens that the debts of a deceased person have to be paid, or conversely, the deceased may be a creditor
and debts have to be recovered on behalf of his estate. For this purpose, S. 214 lays down that no Court can—

(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to
be entitled to the effects of the deceased person or to any part thereof, or

(b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or
order for the payment of his debt-

-except on the production, by the person so claiming of—

(i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased,
or

(ii) a certificate granted under section 31 or section 32 of the Administrator-General’s Act, 1913, and having the
debt mentioned therein, or

(iii) a succession certificate granted under Part X and having the debt specified therein; or

(iv) a certificate granted under the Succession Certificate Act, 1889, or,

(v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted after the first day of May, 1889,
having the debt specified therein.

The word ”debt” in this section includes any debt, except rent, revenue or profits payable in respect of land used for
agricultural purposes.

OBJECT OF S. 214. — The object of this provision is two-fold : to facilitate the collection of debts and regulate
the administration on the one hand and to protect the debtors and to afford them complete discharge on the other.
Therefore, if a person sues in a representative capacity, the Court requires that person to furnish proof by obtaining a
grant of probate or letter of administration or a succession certificate.

This section is mandatory and it prevents the Court from passing a decree against the debtor of a deceased person
for payment of his debt, unless the person claiming to be entitled to the effects of the deceased person produces-
(1) a probate or
(2) a letter of administration or
(3) a certificate under the Administrator- General’s Act, 1913. mentioning the debt sought to be recovered, or
(4) a succession certificate under Part X of this Act mentioning the debt, or
(5) a certificate granted under Bombay Regulation No. VIII of 1827.

It is pertinent to note that S. 214 lays down that no decree can be passed by a Court except upon the production of
proof of the representative capacity of the claimant. A suit can, therefore, be instituted without first obtaining
probate or letters of administration. But such a document must be produced before a decree is passed.

Thus. the Calcutta High Court has held that the production of a Succession Certificate is not a condition precedent to
the institution of a suit The Certificate can be produced at any time before the decree is passed (Rani Roy and others
v Sailesnath Roy and others, AIR. 1978 Cal 147)

A grant of probate or letters of administration in respect of an estate is deemed to supersede any certificate
previously granted under Part X or under the Succession Certificate Act, 1889. or Bombay Regulation No VIII of
1827, in respect of any debts or securities included in the estate [S 215(1)]

When, at the time of the grant of the probate or letters, any suit or other proceedings instituted by the holder of any
such certificate regarding any such debt or security is pending, the person to whom the grant is made IS, on applying
to the Court in which such suit or proceeding is pending, entitled to take the place of the holder of the certificate in
the suit or proceeding.
Moreover, if any certificate is superseded under this section, all payments made to the holder of such certificate in
ignorance of such supersession are to be held good against claims under the probate or letters of administration. [S.
215(2)]

Lastly. S 216 provides that after any grant of probate or letters of administration, no person other than the person to
whom the same may have been granted would have power to sue or prosecute any suit. or otherwise act as a
representative of the deceased, throughout the State in which the same may have been granted, until such probate or
letters of administration has or have been recalled or revoked.

S. 216 is a corollary to section 211. It declares that after any grant of probate or letters of administration, the
executor or administrator to whom such grant is made is the only legal representative of the deceased, and all rights
of action vest in him alone until such grant is expressly revoked.
CHAPTER IX

PROBATE, LETTERS OF ADMINISTRATION AND ADMINISTRATION OF ASSETS OF DECEASED

(Ss. 217-269)

SCOPE.— This Chapter contains general provisions regarding probate, letters of administration, procedure for
obtaining them, their effect, their revocation, their conclusiveness, the different kinds of grant, as also the powers
and duties of executors, administrators, and executors de son tort.

1. LAW AS TO PROBATES (Ss. 2, 222, 224, 227, 230, 273 8 293)

Probate defined (S. 2)

’Probate’ means the copy of a will certified under the seal of a competent Court with a grant of administration to the
estate of the testator. (S. 2)

PROBATE.— A probate is a document issued under the seal of the Court and under the signature of a proper official
(such as a District Judge or the Registrar of a Court), certifying that the original will was proved on a certain date,
and to that is attached a certified copy of the will of which probate has been granted. This grant and the copy of will
both together form the probate A mere copy of the grant, without a copy of the will annexed, is not a probate A
probate is only conclusive as to the appointment of the executor as well as to the validity and contents of the wilt It
does not confer upon the executor any title to property; it only perfects his title to it

Form of probate (S. 289, Sch. VI)

I,…………………………. Judge of the District of [or Delegate appointed for granting probate or letters of
administration in (here insert the limits of the Delegate’s jurisdiction)], hereby make known that on
the……………….day of…………in the year……………., the last will of…………….late of………………, a copy
whereof is hereunto annexed, was proved and registered before me. and that administration of the property and
credits of the said deceased, and in any way concerning his will was granted to……………..,the executor in the said
will named, he having undertaken to administer the same, and to make a full and true inventory of the said
property and credits and exhibit the same in this Court within six months from the date of this grant, or within such
further time as the Court may from time to time, appoint, and also to render to this Court a true account of the said
property and credits within one year from the same dale, or within such further time as the Court may, from time to
time, appoint.

To whom probate can be granted (Ss. 222, 224-226)

S 222 provides that a probate can be granted only to an executor appointed by the will The appointment may be
express or spelt out by necessary implication

Illus - (i) A wills that C be his executor if B will not B is appointed executor by implication.

(ii) A gives a legacy to B and several legacies to other persons, among the rest to his daughter-in-law C. and adds -
but should the within-named C be not living. I do constitute and appoint B my whole and sole executrix.” C is
appointed executrix by implication.

(iii) A appoints several persons executors of his will and codicils and his nephew residuary legatee. and in another
codicil are these words— 1 appoint my nephew my residuary legatee, to discharge all lawful demands against my
will and codicils signed of different dates”. The nephew is appointed an executor by implication.

-EXECUTOR ACCORDING TO THE TENOR”. —As stated above. the appointment of an executor may either be
express or by necessary implication, as when A wills that C be his executor if B will not. B is appointed executor by
necessary implication. An executor by implication is called an ’executor according to the tenor’.

Instituted and substituted executors.— A testator may appoint several persons to act as executors Likewise, he may
appoint several persons as executors in several degrees, as where he makes his wife, executrix, but if she will not,
then he makes B executor, and if B will not, then C, and so on. In such a case, the wife is said to be instituted
executrix in the first degree, B is said to be substituted in the second degree, C in the third degree, and so on.

If several executors are appointed, probate may be granted to them all simultaneously or at different times. If one of
them dies, the survivors can represent the testator.

If a probate of a will is granted and a codicil is discovered thereafter, the probate of the codicil may be granted, if it
does not repeal the appointment of the executors made by the will. But, if it does—i.e., if different executors are
appointed by the codicil,—then the probate of the will must first be revoked and then a new probate may be granted
of the will and the codicil together. (Ss. 224-226)

To whom it cannot be granted (S. 223)

Probate cannot be granted to (i) a minor; (ii) a person of unsound mind or (iii) to any association of individuals,
unless it is a company which satisfies the conditions prescribed by the rules to be made by the State Government in
this behalf.

When granted (S. 293)

Probate cannot be granted until after the expiration of seven clear days from the day of the testator’s death.

Renunciation by executor : its effect (S. 230)

An executor may renounce his executorship either—

(i) orally and in the presence of the Judge; or
(ii) by a writing signed by him.
He is thereby forever precluded from applying for probate.
He cannot, however, renounce in part; nor can he do so after taking probate.

Effect of grant of probate (Ss. 272 & 273)

Probate of a will establishes the will from the death of the testator, and renders valid all intermediate acts of the
executor as such. (S. 227)

There are four important consequences of a grant of probate (or letters of administration with a copy of the will
annexed). These are :

(a) The grant of a probate (or letters of administration with a copy of the will annexed) is conclusive evidence of the
testamentary capacity of the testator, as to the factum and validity of the will, and the finding of the probate Court
as to due execution of the will is conclusive
(b) Probate is conclusive as to the genuineness of the will and appointment of the executors. It is not conclusive as
to the domicile of the deceased, although such a question may have arisen in the probate proceedings. A will is either
good or bad against the whole world.

(c) Once probate is granted, no suit will lie for a declaration that the testator was not of sound mind.

(d) Probate is conclusive as to the representative title of the executor against the debtors of the deceased and gives
complete indemnity to them. (S. 273)

The Calcutta High Court has observed that when a will empowers the executor to sell the property, the executor
represents the estate even before he has taken the probate As such, the probate is not necessary to make an executor
entitled to such property. as he derives his title under the will. In the words of the Court,—

”There is nothing in the law to prevent the executor from acting as an executor and exercise a power given to him
without obtaining probate. Probate mainly gives an adequate protection, and nothing further.” (Bali Ram Dhote v.
Bhupendra Nath Banerjee & Others, A.I.R. 1978 Cal. 559)

2. LAW AS TO LETTERS OF ADMINISTRATION (Ss. 218-221, 232-236, 291-293)

To whom letters of administration may be granted (Ss. 218-219, 232-235)

If the deceased has died intestate and was a Hindu, Muslim, Buddhist, Jain or Sikh, grant of letters may be made to
any person entitled to the whole or any part of the estate of the deceased.

If several persons apply. the Court may grant letters of administration to all or any one or more of them.

If no one applies, letters may be granted to a creditor of the deceased

If the deceased was not a Hindu, Muslim, Buddhist, Jain or Sikh. letters will be granted according as the deceased
died intestate or testate.

I. If he died intestate, letters may be granted to the following and in the following order :

(a) Widow—unless she is excluded owing to personal disqualification (such as lunacy or adultery, but not her
remarriage) or unless she has no interest in the property of the deceased. The Court may associate any person
with her for due administration of the estate.

The husband surviving his wife has the same right of administration of her estate as the widow has in respect of
her husband.

Illus.— (i) The widow is a lunatic or has committed adultery or has been barred by marriage settlement of all
interest in her husband’s estate There is cause for excluding her from the administration.

(ii)The widow has married again since the decease of her husband. This is not good cause for her exclusion.

(b) Those beneficially entitled to the estate of the deceased, the mother being preferred to the others

(c) Creditor— If the above are not willing to act.

II. If the deceased has died leaving a will, but has not appointed an executor or has appointed an executor who
cannot or does not act, letters may be granted to the following :

(a) Universal or residuary legatee (or his representative, if such legatee dies before fully administering the estate).

(b) Heir-at-law— (i.e., those entitled as if the deceased died intestate) if the above do not exist or are not willing to
act.

(c) Another legatee— In this case, a citation must first be issued to the next-of-kin, calling upon them to accept or
refuse the grant of letters.

(d) A creditor.

Grant of letters when to be made (S. 293)

Letters of administration cannot be granted until after expiration of fourteen clear days from the day of the
intestate’s death.

To whom letters cannot be granted (S. 236)

Letters of administration cannot be granted to a minor or a lunatic or an association of individuals which has not
satisfied the prescribed conditions.

In Goverdhan Lal v. Kamalabei Goverdhan Lal (AIR. 1970 A.P. 109), it was held that probate or letters of
administration must be applied for the entire will or estate, as the case may be, unless there are any facts justifying
an exception. This view also followed in Re Veera Jiwatram Chugani (AIR. 1979 A.R. 144), when the Court
reiterated that an application for letters of administration must be made in respect of the entire estate of the
deceased.

It has also been held that in a proceeding for grant of letters of administration, it is not for the Court to decide the
question of title. The Court’s duty is only to consider whether the will has been genuinely made by the testator out of
his free volition, that he had testamentary capacity to execute it, and that it had been properly executed and attested.
A will of certain property may not be permissible under the Mohammadan law, and a valid title may not, therefore,
pass under such a will. However, such a contention is not relevant to the scope of proceedings for grant of a
probate or letters of administration. (Dhane Mia v. Sabhau Ali, A.I R 1978 Cal 399)

Form of letters of administration (S. 290, Sch. VII)

I,……………… Judge of the District of [or Delegate appointed for granting probate or letters of administration in
(here insert the limits of the Delegate’s jurisdiction)]. hereby make known that on the………………day of…………
letters of administration (with or without the will annexed, as the case may be), of the property and credits
of………….late of…………….., deceased, were granted to the father (or as the case may be), of the deceased, he
having undertaken to administer the same and to make a full and true inventory of the said property and credits and
exhibit the same in this Court within six months from the date of this grant or within such further time as the Court
may, from time to time, appoint, and also to render to this Court, a true account of the said property and credits
within one year from the same date, or within such further time as the Court may, from time to time, appoint.

Effect of grant of letters of administration (Ss. 220-221 & 273)

The following six results follow the grant of letters of administration

1. Letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the
administration had been granted at the moment after his death (S 220)

In order to prevent any loss to the estate of a deceased person, this section enacts that upon the grant being made, the
title of the administrator relates back to the time of the testator’s death

2. Letters of administration do not render valid any intermediate acts of the administrator tending to the diminution
or damage of the intestate’s estate (S 221)

Only such acts as are done by the administrator before grant which are beneficial to the estate will be binding and
valid. In this respect. an administrator differs from an executor. Sec. 277 enacts that probate. when granted. renders
valid all intermediate acts of the executor The difference is due to the fact that administrator derives his title from
the Court. whereas the executor’s title is derived from the will Once the grant is made, an administrator can exercise
all the powers conferred by this section,

3. Probate or letters of administration have effect over all the property and estate, moveable or immoveable, of the
deceased, throughout the State in which the same is or are granted, and throughout India when granted by a High
Court,

4. Probate and letters of administration are conclusive as to the representative title against all debtors of the deceased
and all persons holding property which belongs to him.

S. Letters of administration afford full indemnity to all debtors paying their debts and all persons delivering up such
property to the person to whom such probate or letters of administration have been granted (S 273)

Administration bond (Ss. 291-292)

Every grantee of letters of administration [and not probate] must execute an administration bond to the District
Judge with surety. He thereby engages for the due collection, getting in and administering the estate of the deceased.

The administration bond can be assigned by the Court, on such terms as to security as the Court may think fit, to any
person if the engagement is not kept. The assignee can then sue in his own name on the bond, and recover as trustee
for all persons interested, the full amount recoverable in respect of the breach.

If, however, the deceased was a Hindu, Muslim, Buddhist, Jain or Sikh, the Judge may demand such a bond from
any person to whom probate is granted.

DIFFERENCE BETWEEN PROBATE AND LETTERS OF ADMINISTRATION

Probate
1. A probate can be granted only in case of death testate, and to an executor appointed by the will,
2. When granted, a probate renders valid all intermediate acts of the executor as such, as effectually as if probate
had been granted at the moment altar the testator’s death.
3. Probate cannot be granted until after the expiration of seven clear days from the day of the testators death.
4. The title of the executor begins from the testators death; therefore, the executor can institute suits without
obtaining probate.
Letters of Administration
1. Letters of administration can be granted to an administrator either in case of death, testate or intestate.
2. Letters of administration do not render valid any intermediate act of administrator tending to the diminution or
damage of the intestate’s estate.
3. Letters of administration cannot be granted until after the expiration of fourteen clear days from the day of the
intestate’s death,
4. The title of an administrator begins only after the letters of administration are granted; therefore, no suit can be
instituted before the grant of letters.

3. KINDS OF GRANT (Ss. 231-260)

Grants are of two kinds

I. Letters of administration ‘Cum testamento annexo’ i.e., with the will annexed : Ss. 231-234 & 254 and
II. Limited grants Ss. 237-260.

Limited grants are of seven kinds

(1) Grants limited in duration - Ss. 237-240
(2) Grants for the use and benefit of others having a right to them : Ss. 241-247. These, in their turn, are of four
kinds, viz.—

(a) Administration ’durante absentia’ : Ss, 241-243

(b) Administration ’durante minor aetate’, i.e., during minority : Ss. 244-245.
(c) Administration for the benefit of a lunatic : S 246
(d) Administration ’pendente lite’ : S. 247.

(3) Grants for special purpose : Ss. 248-254. These are of four kinds, viz.—
(a) Appointment of an executor for a special purpose Ss 248- 249.
(b) Administration limited to the estate in which a person has a beneficial interest : S. 250.
(c) Administration ad litem, i.e., limited to a suit Ss. 251-252
(d) Letters of administration ‘ad colligenda bona’, i.e., for gathering goods of the deceased : S. 253.
(4) Grants with exception : Ss. 255-256.
(5) Grants caeterorum, i.e., grants of the rest S. 257.
(6) Grants ’de bonis non’, i.e., of effects unadministered : Ss. 258-259.
(7) Cessate (supplemental) grants : S. 260.

I. Letters of administration cum testamento annexo, i.e., with the will annexed (Sc. 231-234 & 254)

When granted

1. If an executor renounces. or fails to accept executorship, within the tarns limited for acceptance or refusal
thereof—

2 When the deceased has made a wilt but has not appointed an executor, or the deceased has appointed an
executor who is legally Incapable or refuses to act, or who has died before the testator, or before he has proved
the will, or the executor dies after having proved the will, but before he has administered all the estate of the
deceased

3 When a residuary legatee who has a beneficial interest survives the testator, but dies before the estate has
been fully administered
4. When there is no executor and no residuary legatee or representative of a residuary legatee, or he declines
or is incapable to act, or cannot be found—

5. When a person has died intestate, or leaving a will of which there is no executor willing and competent to
act, or where the executor is resident out of the State and it appears to the Court to be necessary to appoint
some person to administer the estate other than the person who, in ordinary circumstances would be entitled
to a grant of administration—

To whom granted

1—the will may be proved and letters of administration, with a copy of the will annexed, may be granted to the
person who would be entitled to administration in case of intestacy.

2—a universal or a residuary legatee may be admitted to prove ,he will, and letters of administration with the will
annexed may be granted to him of the whole estate or of so much thereof as may be unadministered.

3—his representative has the same right to administration with the will annexed as such residuary legatee.

4—the person or persons who would be entitled to the administration of the estate of the deceased or any other
legatee or a creditor, may be admitted to prove the will, and letters of administration may be granted to him or them
accordingly.

5— the Court may, in its discretion, having regard to consanguinity, amount of interest, the safety of the estate, and
probability that it will be properly administered, appoint such person as it thinks fit to be administrator. In every
such case, letters of administration may be limited or not, as the Court thinks fit.

Exemplification (S. 228)

When a will is proved and deposited in a Court of competent jurisdiction situated beyond the limits of the State, and
a properly authenticated copy of the will is produced, letters of administration may be granted with a copy of such
copy annexed.

EXEMPLIFICATION.—S. 228 enacts that letters of administration may be granted with copy annexed of the
authenticated copy of a will that is proved abroad. Such authenticated copy is called ”exemplification

S. 228 lays down the procedure for the grant of letters of administration with an authenticated copy of the will of a
foreigner. In the case of a petition under the section, no further affidavit of the attesting witness is necessary Nor is
any further proof required as regards the due execution of the will.

The word ”may” used in S. 228 gives a discretion to the Court. Therefore, a grant of letters under this section is not
made as a matter of right.

This section has no application if the testator has made two independent wills, one disposing of his property in India
and the other disposing of his property abroad In such a case, the former alone will be admitted to probate in the
ordinary way.

II. Limited Grants (Sch. II: Ss. 237-260)

As seen above, there are seven kinds of limited grants. viz.—
(1) Grants limited in duration —Ss 237-240
(2) Grants for the use and benefit of others—Ss 241-247
(3) Grants for special purposes—Ss 248-254
(4) Grants with exception —Ss. 255-256.
(5) Grants caeterorum or grant of the rest—S. 257.
(6) Grants de bonis non — Ss. 258-259
(7) Cessate grants or supplemental grants—S. 260

Each of these are briefly discussed below.

1. Grants limited in duration (Ss. 237-240)

These are granted in three cases, viz.—

1. When a will has been (i) lost, or (it) mislaid since the testator’s death, or (iii) has been destroyed by wrong or
accident (and not by any act of the testator) and a copy or the draft of the will has been preserved, probate may be
granted of such copy of draft—

—limited until the original or a properly authenticated copy of it is produced

Even if no copy or draft is preserved, probate may be granted of the contents of the will if they can be established by
evidence.

2 When the will is in the possession of a person residing out of the State in which application for probate was made
and he has refused or neglected to deliver it up, but a copy has been transmitted to the executor, and it is necessary
that probate should be granted without waiting for the arrival of the original, -probate may be granted of the copy so
transmitted

—limited until the will or an authenticated copy of it is produced.

3 Where no will is forthcoming, but there is reason to believe that there is a will in existence, letters of
administration may be granted :

—limited until the will or an authenticated copy of it is produced.

2. Grants for the use and benefit of others (Ss. 241-247)

There are four kinds of such grants. These are :-

(a) Administration ”durant absentia”(Ss. 241-243)

In the absence of an executor or administrator, letters may be granted to his attorney or agent for the use and benefit
of the principal

—limited till the executor or administrator obtains the grant to himself.

(b) Administration ”durante minor estate”, i.e., during minority (St 244-245)
When a minor is the sole executor or sole residuary legatee, letters of administration, with the will annexed, may
be granted to the legal guardian of such minor or such other person as the Court thinks fit,

—limited till the minor has attained his majority

If there are several minor executors or residuary legatees, the grant to such guardian will be limited until one of
them attains majority.

(c) Administration for use and benefit of lunatic or minor (S. 246)

In the case of a sole executor or residuary legatee who is a minor or lunatic, grant of letters may be made to the
curator or to any fit person for the use and benefit of the minor or lunatic—

—limited until he attains majority or becomes of sound mind.

(d) Administration ”pendente lite”, pending a suit (S. 247)

An administrator pendente lie is appointed when a suit (i) touching the validity of the will or (ii) for obtaining or
revoking probate or letters of administration is pending. He has all the rights arid powers of a general
administrator, except the right of distributing the estate. He is subject to the control of the Court which appointed
him and acts under its directions.

3. Grant for special purposes (Ss. 248-254)

There are four kinds of grants for special purposes, viz.:–

(a) Appointment of executor for a special purpose (Ss. 248-249)

If an executor is appointed for any limited purpose specified in the will—Probate is to be limited to that purpose,
and if he appoints an attorney or agent, letters of administration with the will annexed, are also to be limited
accordingly.

If an executor appointed generally gives an authority to an attorney or agent to prove a will on his behalf and the
authority is limited to a particular purpose, letters of administration with the will annexed, are to be limited
accordingly.

(b) Administration limited to estate in which the person had beneficial interest (S. 250)

Where a person dies, leaving property of which he was the sole or surviving trustee, and leaves no general
representative—

—letters of administration limited to such property. may be granted to the beneficiary, or to some other person on
his behalf

(c) Administration ”ad litem”, i.e., limited to a suit (Ss. 251-252)

When it is necessary that the representative of a deceased be made a party to a pending suit, and the executor is
unable or unwilling to act, – letters of administration may be granted to the nominee of a party in such suit—
—limited for the purpose of representing the deceased in the said suit till the decree is executed

So, also, a grant may be limited to the purpose of becoming and being made a party to the suit to be brought against
the executor or administrator, and executing the decree—if at the expiration of twelve months from the date of any
probate or letters of administrtaion, the executor or administrator is absent from the State

(d) Letters of Administration ”ad colligenda bona” i.e., for

gathering the goods of the deceased (Ss. 253-254)

In any case in which it appears necessary for preserving the property of a deceased person —the Court within whose
jurisdiction any of the property is situated may grant to any person, whom such Court may think fit—

—letters of administration limited to the collection and preservation of the property of the deceased and to the
giving of discharges for debts due to his estate

When (i) a person has died intestate or leaving a will of which there is no executor, and (ii) it appears to the Court to
be necessary or convenient to appoint some person, other than person ordinarily entitled to a grant of administration,
to administer the estate or any part thereof, the Court may, in its discretion, having regard to (a) consanguinity. (b)
amount of interest, (c) the safety of the estate and (d) probability that it will be properly administered, appoint such
person as it thinks fit to be administrator.

Such letters of administration may or may not be limited, as the Court thinks fit

4. Grants with exception (Ss. 255-256)

Whenever the nature of the case requires that an exception be made. probate of a will, or letters of administration
with the will annexed can be granted subject to such exception.

5. Grants caeterorum, i.e., grants of the rest (S. 257)

Whenever a grant with exception of probate, or of letters of administration with or without the will annexed, has
been made, the person entitled to probate or administration of the remainder of the deceased’s estate may take a
grant of probate or letters of administration of the rest of the deceased’s estate.

6. Grants -de bonis non”. i.e., of effects unadministered (Ss. 258-259)

If an executor has died leaving a part of the testator’s estate unadministered, a new representative may be appointed
for the purpose of administering such part of the estate. (S. 258)

S. 258 recognises the principle that the executor of an executor is not a derivative executor If an executor or
administrator dies without having fully administered the estate, the duty of carrying out the administration of the
estate, will not devolve upon the deceased’s executor or administrator, but a new representative must be appointed
under this section. The administrator of an executor is also not a derivative executor.

In granting letters of administration of an estate which is not fully administered, the Court will be guided by the
same rules as apply to original grants and letters of administration are granted to those persons only to whom
original grants might have been made. (S. 259)

ADMINISTRATOR DE BONIS NON.— Where a sole or last surviving executor dies without having fully
administered the estate of the deceased, his executor, in case he leaves a will, or his administrator, in case he dies
intestate, does not represent the original testator. It is accordingly necessary to appoint an administrator to administer
the estate of the original testator left unadministered. Such an administrator is technically called administrator de
bonis non.

7. ”Cessate” (supplemental) grants (S. 260)

When a limited grant has expired by efflux of time, or the happening of the event or contingency on which it was
limited, and there is still some part of the deceased’s estate unadministered—letters of administration are granted to
those persons to whom original grants might have been made.

Cessate grant is a re-grant of the whole of the deceased’s estate. Grant de bonis non is a grant of that portion only of
the estate which is unadministered. A cessate grant is an absolute and permanent grant, following a temporary one.
Such a grant is made where a testator has directed that in a certain event, some other person shall be substituted for
his original executor or where the first grant is made for the use and benefit of a person under disability and the
disability is removed or where the grant has been made of the contents of a lost will and the original will is
produced Such a grant is in the nature of a second grant.

4. GRANTS WHEN ALTERED (Ss. 261-262)

There are two cases in which a grant of probate or letters of administration can be altered :

1. The Court can rectify errors in names, descriptions or in setting forth the time and place of the deceased’s death
or in the purpose of a limited grant, and the probate or letters may be altered accordingly (S. 261)

Errors in a grant are different from errors in a will It is only errors in probate and letters of administration that can be
rectified under this section, but not errors in the will. (For errors in a will, see sections 76 and 77).

2. If a codicil is discovered after the grant of probate or letters, it may by added to the grant, and the grant may be
altered accordingly (S. 262)

If a codicil is discovered after probate is granted. a fresh probate is to be obtained of that codicil, and the original
probate remains intact. But if the codicil annuls or varies the appointment of the executor (under the will), the
probate of the will is to be revoked, and a fresh probate granted of the will as altered or varied by the codicil

5. GRANT WHEN REVOKED (S. 263)

S. 263 enumerates five cases in which a grant (of probate or letters) can be revoked or annulled for just cause

What is just cause

’,Just cause’ is deemed to exist where–

(a) the proceedings to obtain the grant were defective in sub-stance; or

(b) the grant was obtained fraudulently, by making a false suggestion, or by concealing from the Court something
material to the case, or

(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant,
though such allegation was made in ignorance or inadvertently; or

(d) the grant has become useless and inoperative through circumstances, or

(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an
inventory or account or has exhibited an untrue inventory or account.
Illustrations of the existence of just cause

(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have been cited,
(iii) The will of which probate was obtained was forged or revoked.
(iv) A obtained letters of administration to the estate of B, as his widow, but it has since transpired that she was
never married to him
(v) A has taken administration to the estate of B as if he had died intestate, but a will has since been discovered.
(vi) Since probate was granted, a later will has been discovered.
(vii) Since probate was granted, a codicil has been discovered, which revokes the appointment of executors under
the will.
(viii) The person to whom probate was, or letters of administration were, granted, has subsequently become of
unsound mind.

The Calcutta High Court has observed that any interest, however slight it may be, and even the bare possibility of an
interest, is sufficient to entitle a person to make an application for revocation of a probate. (Sima Rani Mahanti v.
Puspa Rani Pal, A.I.R. 1978 Cal. 140)

The following are a few examples where the courts have refused to grant revocation :

(1) Immoral conduct of the executor is not a ”just cause” for revocation.

(2) If a niece of the deceased obtains administration, a nephew cannot come on the scene to get it revoked.

(3) A mere failure to file accounts (in the absence of wilful omission to do so) is not sufficient cause for revocation.

(4) Similarly, a mere disagreement between the administrators is not just cause for revocation.

Consequence of revocation (Ss. 296-297)

When a grant of probate or letters is revoked

1. All payments made bona fide to the executor or administrator before revocation operate, notwithstanding the
revocation, as a legal discharge to the person making them.

2. The executor or administrator who has acted under such revoked grant may retain and reimburse himself all
lawful charges incurred by him.

3. The grantee of an annulled or revoked grant must deliver it up to the Court which made it; default in doing so is
punishable with a fine of Rs. 1,000 or imprisonment for 3 months.

6. THE PRACTICE IN GRANTING AND REVOKING PROBATE AND LETTERS OF

ADMINISTRATION (Ss. 264-302)
Ss. 264 to 302 prescribe the various steps to be taken for obtaining probate or letters of administration. They also
mention the powers of Court in deciding all questions that arise in such proceedings.

District Delegates

The High Court is empowered to appoint such judicial officers with any district, as it thinks fit, to act for the District
Judge, as delegates to grant probates and letters of administration in non-contentious cases within such local limits
as it may prescribe. (S. 264)

The Bombay High Court has held that the expression ’District Judge as used in S 264 of the Act does not refer to a
persona designata. Rather, it refers to a judge to a principal civil court of original jurisdiction, as defined in S 2 of
the Act (Vero Thackersey v Manekbai Thackersey, AIR 1977 Born. 419)

Persons so appointed are called ”District Delegates” (S 265)

Powers of a District Judge (Ss. 266-267)

1. Power to grant probate and administration.— The District Judge is given the like powers and authority in
relation to the granting of probate and letters of administration, and all matters connected therewith as are by law
vested in him in relation to any civil suit or proceeding pending in his Court.

2. Power to order production of testamentary paper.—

(i) The District Judge may order any person to produce and bring into Court any paper or writing, being or
purporting to be testamentary, which may be shown to be in the possession or under the control of such person.

(ii) If there is reason to believe that any person has knowledge of any testamentary paper or writing, the Court may
direct such person to attend for the purpose of being examined respecting the same

(iii) Such person is bound to answer truly questions put to him by the Court, and if so ordered, to produce or bring
in such paper or writing. He is subject to the like punishment under the Indian Penal Code, in case of default in not
attending or in not answering such questions, or not bringing in such paper or writing, as he would have been
subject to in case he had been a party to a suit and had made such default 00 The costs of the proceeding are in the
discretion of the Judge.

Particulars of petition for probate (Ss. 276-281)

The petition for probate must be distinctly written in English (or in the language of the Court) with the will annexed
It should state-(1) The time of the testator’s death, (ii) that the writing annexed is his last will and testament; (iii)
that it was duly executed; (iv) the amount of assets which are likely to come to the petitioner’s hands (v) that the
petitioner is the executor named in the will; and (vi) that the deceased, at the time of his death, had his fixed place of
abode or had some property within the jurisdiction of the judge.

(If the application is to a District Delegate, the petition must first state that the deceased at the time of his death
resided within the jurisdiction of the Delgate.)

It must be subscribed by the petitioner and his pleader and verified by the former, it must also be verified by at least
one of the witnessess to the will, when procurable. His verification is to be confined to the fact of execution of the
will by the testator.

A translation of the will is to be annexed to the petition, if the will is written in any language other than English.

If the application is to a High Court for a grant intended to have effect throughout India. the application must
state in the petition that to the best of his belief, no similar application relating to the same will and the same estate
has been made for the purpose to any other High Court; if it has been made, he must state the Court where and the
person by whom it was made and the result thereof.

SPECIMEN OF A PETITION FOR PROBATE :

IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION

Petition for probate of the Will of PO.R. deceased Hindu inhabitant residing at………………..Mumbai.

A.B.C……………………….Petitioner……………..Sheweth.

1. That the abovenamed PO.R. died at Mumbai on the 10th day of May, 2010.

2. That the said deceased, at the time of his death, left property within Greater Mumbai.

3. That the writing hereunto annexed, and marked ”A” is his last will and testament.

4. That the same was duly executed at Mumbai the first day of May, 2005.

5. That the petitioner is (one of) the executor(s) named in the said will.

6. That the petitioner has truly set forth in the Schedule I hereto, all the property and credits which the deceased died
possessed of or was entitled to at the time of his death which have or are likely to come to his hands.

7. That the petitioner has also truly set forth in Schedule II, all the items that by law he is allowed to deduct.

8. That the said assets, exclusive of what the deceased may have been possessed of or entitled to as a trustee for
another and not beneficially or with power to confer a beneficial interest and also exclusive of the items mentioned
in the said Schedule II, but inclusive of all rents, interest and dividends and increased value since the date of his
death are under the value of Rs…………………….

9. That the said deceased left him surviving as his only next-of-kin, according to (Hindu) law-
……………………….

10. That no application has been made to any District Court or Delegate or to any other High Court for probate of
any will of the said deceased or letters of administration with or without the will annexed to his property and credits.

The petitioner prays that probate may be granted to him having effect throughout the Maharashtra State (or India).

VERIFICATION

I/We, the petitioner(s) abovenamed. do solemnly declare that what is stated in paragraphs 1 to 5 is true to my/our
own knowledge. and that what is stated in the remaining paragraphs is true to the best of my/our information and
I/We believe the same to be true

Solemnly declared at Mumbai aforesaid

the 4th day of June, 2010

Particulars of petition for letters of administration (Ss. 278 - 2e2)

The petition for letters must state (i) the time and place of deceased’s death; (ii) his family or other relatives arid
their residences, (iii) the right in which the petitioner claims; (iv) that the property is situated within the jurisdiction
of the Court. and (v) the amount of assets likely to come to the petitioner’s hands. It must be signed and verified by
the petitioner, any false averment being punishable under ss. 191, 192, I.P.C. (i.e., giving and fabricating false
evidence). If the application is to the High Court, it must further state that no similar application has been made to
any Court or if it has been made by whom it was made and the result thereof.

SPECIMEN OF A PETITION FOR LETTERS OF ADMINISTRATION

(In cases where there is no will)

IN THE HIGH COURT OF JUDICATURE AT MUMBAI TESTAMENTARY AND INTESTATE JURISDICTION

Petition for letters of Administration Deceased.

of the property and credits of P0.13 ABC ………………..Petitioner

SHEWETH

1 That the abovenamed PO.R. died at Mumbai on the 10th day of May. 2010

2 That the said deceased at the time of his death left property within Greater Mumbai (or had a fixed place of abode
within Greater Mumbai.

3 That the said deceased died intestate and that due and diligent search has been made for a will, but none has been
found.

4. That the said deceased left him surviving as his only next-of-kin according to (Hindu) law-…………………..

5 That the Petitioner as (relationship to be stated here) of the deceased claims to be entitled to a (halt) share of his
estate.

6 That the Petitioner has truly set forth in Schedule I hereto, all the property and credits which the deceased died
possessed of or entitled to at the time of his death, which have or are likely to come to the Petitioner’s hands.

7. That the Petitioner has also truly set forth in Schedule ll all the items that by law he is allowed to deduct.

8. That the said assets, exclusive of what the deceased may have been possessed of or entitled to as trustee for
another and not beneficially or with power to confer a beneficial interest and also exclusive of the items mentioned
in the said Schedule II, but inclusive of all rents, interests and dividends and increased value since the date of his
death, are under the value of Rs…………………..

9. That no application has been made to any District Court or Delegate or to any High Court for probate of any will
of the said deceased or letters of administration with or without will annexed to his property and credits.

The Petitioner therefore prays that : Letters of Administration may be granted to him having effect throughout the
State of Maharashtra (or throughout India).

VERIFICATION
I, the Petitioner abovenanied, do solemnly declare that what is stated in paragraphs 1 to 5 is true to my own
knowledge, and that what is stated in the remaining paragraphs is true to the best of my information and belief, and
I believe the same to be true.

Solemnly declared at Mumbai aforesaid

this 25th day of July, 2010.

SPECIMEN OF A PETITION FOR LETTERS OF ADMINISTRATION WITH WILL ANNEXED

(Also known as Letters of Administration C.T.A.)

(In cases where the testator has left a will)

IN THE HIGH COURT OF JUDICATURE AT MUMBAI TESTAMENTARY AND INTESTATE

JURISDICTION

Petition for Letters of

Administration with the will annexed

of the property and credits of PQR.

Deceased.

A.B.C……………………………………… Petitioners

SHEWETH :

1. That the abovenamed POP. died at Mumbai on or about the 14th day of May 2007.

2. That the said deceased at the time of his death left property in (or had a fixed place of abode at) Greater
Mumbai

3. That the writing hereto annexed and marked -A is his last will and Testament.

4. That the said will was duly executed at (Mumbai) on the first day of May 2005.

5. That by the said will, the deceased appointed (State name) (executor, as the case may be) sole executor thereof,
but he has since died, to wit on the 2nd day of June 2010. without having proved the said will and that the Petitioner
is the (cousin) of Deceased

6. That the Petitioner has truly set forth in Schedule I hereto, all the property and credits which the deceased died
possessed of or entitled to at the time of his death, which have or are likely to come to his hands.
7. That the Petitioner has also truly set forth in Schedule II all the items that by law he is allowed to deduct.

8. That the said assets, exclusive of what the deceased may have been possessed of or entitled to as a trustee for
another or others and not beneficially or with the power to confer a beneficial interest, and also exclusive of the
items mentioned in the said Schedule II, but inclusive of all rents, interest and dividends and increased value since
the date of his death, are under the value of Rs…………………….

9. That the said deceased left surviving as his only next-of-kin according to (Hindu) Law,……………residing
at…………….

10 That no application has been made to any District Court or Delegate or to any other High Court for probate of
any will of the deceased or letters of administration with or without the will annexed to his property and credits

The petitioner prays that the letters of administration with the said will annexed may be granted to him as the
(cousin) of the said deceased having effect throughout India.

VERIFICATION

1. ABC. the Petitioner abovenamed do solemnly declare that what is stated in paragraphs 1 to 5 is true to my own
knowledge and that what is stated in the remaining paragraphs is true to the best of my information and belief, and I
believe the same to be true.

Solemnly declared at Mumbai

this 23rd day of July. 2010.

Summary of procedure for obtaining probate (Ss. 267-269, 283, 285, 289-293 & 299)

The proceedings of the probate Court are regulated by the Code of Civil Procedure The Court may order production
of the testamentary papers, and may interfere for the protection of property. In all cases, the Court may (1)
examine the petitioner in person, upon oath, (2) require further evidence of execution of the will or the right of the
petitioner to the letters of administration, as the case may be and (3) issue and publish citations to interested
persons.

If a caveat is entered, no proceeding is taken on the petition until after notice to the caveator. The proceedings then
take the form of a regular suit in which the petitioner is the plaintiff and the opponent is the defendant.

In a case where the Court thinks that probate should be granted, it grants it under its seal in the prescribed form after
the expiration of seven clear days from the testator’s death. Letters of administration are granted after the
expiration of fourteen clear days from the intestate’s death.

The grantee of the letters of administration must give a bond to the Court, with one or more surety or sureties
engaging for the due collection, getting in and administering the estate. The Court may demand a like bond from the
grantee of probate. Every order of the probate Court is appealable to the High Court.

PROCEDURE SUBSEQUENT TO PETITION FOR PROBATE OR LETTERS (Ss. 283, 285, 289, 290, 291-
292, 295, 299)

Procedure when there is no opposition (i.e., proving the will In common form)
1. Taking of evidence (S. 283)

The Judge may examine the petitioner, and may also require further evidence of the due execution of the will or of
the right of petitioner to the letters of administration.

2. Issue of citations (S. 283)

The Judge may then issue citations calling upon all persons claiming to have any interest in the estate of the
deceased to come and see the proceedings before the grant of probate or letters of administration.

The citation is fixed up in some conspicuous part of the Courthouse, and also in the office of the Collector of the
District, and is also otherwise published or made known in such manner as the Judge or District Delegate issuing the
same may direct.

Citation means a summons issued by the Court, citing persons to come in and show cause why a grant of probate or
letters of administration should not be issued to a particular person who has applied for it. Citation may be—

(i) Special, when it is addressed to a particular person; or

(ii) General, when it calls upon all persons, (without naming any particular person) claiming an interest.

Under the Indian Succession Act, citation may be

(i) Obligatory or compulsory; or
(ii) Optional or discretionary.

An obligatory citation will be issued if it is found when a person appointed as an executor has not renounced the
executorship In such a case, letters of administration cannot be granted to any other person until a citation has been
issued calling upon the executor to accept or renounce his executorship Here, the absence of a citation is sufficient
ground for revocation of grant.

In other cases, the Court may issue citations calling upon all persons claiming to have any interest in the estate of the
deceased to come and see the proceedings before the grant of probate or letters of administration. These are optional
or discretionary citations

The Patna High Court has held that any interest, however slight, and even a bare possibility of an interest, is
sufficient to entitle a person to enter a caveat in probate proceedings. In the case before the Court, a person claiming
an interest in the whole property under a will executed by a co-widow of the deceased was held to be entitled to
safeguard his interest which he got under the will and has locus standi to oppose the grant of probate of the will
executed by the other widow. (Narayan Sah v. Devaki, A.I.R. 1978 Pat. 220)

3. Issue of grant (Ss. 289-290)

If no one opposes and if the Judge is satisfied, he may grant the probate or letters to the petitioner. ( This is known
as ”Proving a will in Common Form”. )

Administration bond (St 291-292)

Every grantee of letters of administration (and not probate) must execute an administration bond to the District
Judge with surety. He thereby engages for the due collection, getting in and administering the estate of the deceased.
The bond can be assigned by the Court to any person if the engagement is not kept. The assignee can then sue in his
own name on the bond, and recover as trustee for all persons interested, the full amount recoverable in respect of the
breach If. however, the deceased was a Hindu, Muslim, Buddhist, Jain or Sikh, the Judge may demand such a bond
from any person to whom probate is granted.

An administration bond is to be given with one or more surety or sureties. Sureties are said to justify when they
swear that they are, after the payment of their debts, worth a sum specified, thus satisfying the Court that the
security offered is good and sufficient. Such persons are called justifying sureties.

Procedure in the case of contention or opposition (i.e., Proving the will in solemn form) (Ss. 283, 285, 289-290
and 295)

1. Taking of evidence

(The same as in S 283 above)

2. Issue of citations

(The same as in S 283 above)

3. Caveat (Ss. 285 and 295)
If, however, anyone wishes to oppose the grant, he must lodge a caveat with the Court, and thereupon no
proceedings can be taken until after notice to the caveator.

A caveat is a warning, a protest, by a person against the granting of probate or letters te the petitioner. It is to be
lodged with the District Judge. (If lodged with a District Delegate, the latter has to send a copy thereof to the District
Judge.) After a caveat is entered. no proceedings can be taken on the petition until after notice to caveator. As soon
as a caveat is lodged, the proceedings take the form of a suit - the petitioner as the plaintiff and the caveator as the
defendant.

Schedule V prescribes the form of a caveat. It is as under :

”Let nothing be done in the matter of the estate of A.B., late of………. deceased, who died on
the……………….day of………..at………….. without notice to C.D. of……………….

4. Grant or refuse of probate or letters (Ss. 289-290)

The Court must then take evidence. It may then either refuse or grant the probate (with the seal of the Court) to the
petitioner.

This is known as proving a will in solemn form. An appeal from the-Judge’s ’order lies to the High Court.

TWO FORMS OF PROVING A WILL — A will may be proved (a) in common form or (b) in solemn form. A will
is said to be proved in solemn form (or per testes) when it is proved in the presence of persons interested or who
claim to be interested in the estate or after they have been cited to come and see the proceedings. A will is proved in
common form when the executor presents it before the Judge, and in the absence and without citing the parties
interested, produces witnesses to prove the same. Generally, a will is so proved, simply on the oath or credit of
the executor propounding it. This is, what is called proving summarily. It is without any opposition and ex pane to
the satisfaction of the Judge.

The difference between a probate in common and one in solemn form is that
(1) the former is revocable, whereas the latter is not revocable, except (a) where a later will is discovered or (b)
where the judgment in favour of a will has been obtained by fraud or collusion.

(2) Secondly, the order of the Court in a will which is proved in solemn form amounts to a decree, whereas it is not
so in the case of a will proved in common form.

7. EFFECTS OF GRANT OF PROBATE OR LETTERS (Ss. 273 and 297)

Once a grant is made by the Court, three consequences follow. These are enumerated in S. 273 (which has been
discussed above), namely :

1. It is to have effect over all the property of the deceased throughout the State in which the same is granted, if it is
made by a High Court, it has this effect throughout India.

2. It is conclusive as to the representative title against all debtors of the deceased and all persons holding property
which belongs to him.

3.11 affords full indemnity to all debtors paying their debts to the person to whom the grant is made.

The combined effect of section 227 and of this section is that the property of the deceased vests in the executor or
administrator from the day of the death of the deceased, and so long the grant stands, the executor or administrator is
the legal representative of the deceased. Probate is conclusive as to the representative title of the executor and the
right of the executor to represent the estate, and as to the due execution of the will, but not as to the genuineness of
the will or whether it was obtained fraudulently. Letters of administration are conclusive evidence of the intestacy
of the deceased

Secondly a grant is conclusive against all debtors, and affords full indemnity to them for paying their debts and to all
persons delivering the property of the deceased to such legal representative, even though it may turn out afterwards
that the probate or letters were fraudulently obtained.

8. POWERS OF AN EXECUTOR OR ADMINISTRATOR (Ss. 305-315)

The main powers of an executor or an administrator are three, viz

1. Power to sue (Ss. 305-306)

(a) He has the same power to sue in respect of all causes of action that survive the deceased, and may exercise the
same power for the recovery of debts as the deceased had when living. (S. 305)

(b) All rights of action of, or against the deceased, survive to or against the executor or administrator, except a cause
of action for (i) defamation. (ii) assault as defined in the Indian Penal Code, (iii) personal injuries not causing the
death of the person, and (iv) the case where after the death of the party, the relief sought could not be enjoyed or the
granting of it would be nugatory (i.e. futile). (S. 306)

Illus —(i) A collision takes place on a railway in consequence of some neglect or default of an official, and a
passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any action The
cause of action does not survive.
(ii) A sues for divorce. A dies. The cause of action does not survive to his representative

All demands and all rights to prosecute or defend any action or special proceeding on which the deceased might
have sued or been sued, survive his death and are transmitted to his executor or administrator Thus, the rights, and
also the obligations, of the deceased survive him All demands which the deceased might have made and all demands
which might have been made against him survive to or against the representative. All rights to prosecute or defend
any action or special proceedings before any Court or other public authority, likewise survive to or against the
representative.

There are lour exceptions to this general rule, and in these four cases (seen above), rights of action do not survive
the deceased.

2. Power to dispose of property (S. 307)

An executor or administrator has power to dispose of the property of the deceased in such manner as he thinks fit.

Illus.— (i) The deceased has made a specific bequest of part of his property. The executor, not having assented to the
bequest, sells the subject of it. The sale is valid.

(ii) The executor, in the exercise of his discretion, mortgages a part of the immoveable estate of the deceased. The
mortgage is valid.

However, if the deceased was a Hindu, Muslim, Buddhist, Jain, Sikh or an exempted person, then the power of an
executor to dispose of immoveable property of the deceased is subject to any restriction imposed by the will, unless
the Court grants him such powers. Further, he cannot, without the sanction of the Court, mortgage, charge or transfer
by sale or gift, any immoveable properly of the deceased or grant a lease thereof for more than five years. If he does
so, the transaction is voidable at the option of any person interested in the property.

The above can be analysed thus :

POWER OF DISPOSAL OF AN EXECUTOR OR ADMINISTRATOR (S. 307)

If the deceased was an European, Parsi or Indian Christian,-the executor or administrator has absolute power of
disposal of any property of the deceased in any manner he likes,

If the deceased was a Hindu Muslim, Buddhist, Sikh or Jain,-the executor or administrator can
dispose of the property, but with the following restrictions, viz.—
(1) His power to dispose of immoveable property is subject to any restriction imposed by the will.
(2) (a) An administrator cannot, in any manner, alienate immoveable property without permission of Court
(b) Nor can he lease immoveable property for more than five years without the permission of the Court.

3. Power to spend (S. 308)

An executor or administrator may incur expenditure on any act necessary for the proper care and management of the
estate, or with sanction of the High Court, on any religious, charitable and other objects and on the improvement of
the estate.

General propositions as to the powers of an executor or administrator (Ss. 311-315)

1. When there are several executors or administrators, the powers of all may, in the absence of any direction to the
contrary, be exercised by any one of them who has proved the will or taken out administration (S. 311)

Illustrations.- (i) One of several executors has power to release a debt due to release the deceased.

(ii) One has power to surrender a lease,

(iii) One has power to sell the property of the deceased whether moveable or immoveable.
(iv) One has power to assent to a legacy.
(v) One has power to endorse a promissory note payable to the deceased
(vi) The will appoints A. B. C and D to be executors and directs that two of them shall be a quorum. No act can be
done by a single executor

2 Upon the death of one or more of several executors or administrators, in the absence of a direction to the contrary
in the will or letters of administration, powers of all may be exercised by the survivor or survivors (S. 312)

3 The administrator of effects unadministered has, with respect to such effects. the same powers as the original
executor or administrator. (S 313)

4 An administrator during minority (of the person entitled to property) has all the powers of any ordinary
administrator. (S. 314)

5 When a grant of probate or letters of administration has been made to a married woman, she has all the powers of
an ordinary executor or administrator (S. 315)

9. DUTIES OF AN EXECUTOR OR ADMINISTRATOR (Ss. 316-330)

An executor has the following lour important duties

1. He has to provide funds for the performance of the funeral of the deceased suitable to his condition, if there is
sufficient property. (S. 316)

2. He must (0 within six months of the grant of probate or letters of administration, or within such further time as the
Court may appoint, exhibit an inventory containing a full and true estimate of all the property in possession and all
credits and debts owing to him in his capacity as an executor administrator, and (ii) must, within one year of the
grant, or such further time as the Court may allow, exhibit an account of the estate, showing the assets which have
come to his hands and the manner in which they have been disposed of. (This is to be done in the form prescribed by
the High Court.) Intentional omission to do so is an offence under S. 176 of the I.P.C. The exhibition of an
intentional false inventory or account is also an offence under S. 193 of I.PC. The inventory must include all the
moveable and immoveable property situated in India and the value of the property situated in each State is to be
stated separately. (Ss. 317 & 318)

3. He has to collect, with reasonable diligence, the property of the deceased and the debts due to him. (S. 319)

4. He can make disbursements as under (in the following order):

(a) Funeral expenses, according to the position of the deceased, death-bed charges, fees for medical attendance, and
charges for board and lodging for one month before his death. (S. 320)

(b) Expenses of obtaining probate or letters of administration and costs incurred in these proceedings. (S. 321)
(c) Wages for service rendered to the deceased within 3 months before his death by any labourer, artisan, or domestic
servant. (S. 322)

(d) Other debts of the deceased, but, no creditor is to be preferred to another. All debts that the executor knows of are
to be discharged equally and rateably; if he departs from this rule, he would be personally liable. (S. 323)

Even if the domicile of the deceased was not in India, the application of his moveable property to the payment of his
debts is to be regulated by the law of India. Moreover, a creditor who is paid in part from moveables must bring the
payment into account before sharing in the proceeds of the immoveable property. (S. 324)

Illustration.- A dies, having his domicile in a country where instruments under seal have priority over instruments
not under seal, leaving moveable property of the value of Rs. 5,000 and immoveable property to the value of Rs.
10,000, and debts on instruments under seal to the amount of Rs. 10,000 and debts on instruments not under seal to
the same amount. The creditors holding instruments under seal receive half of their debts out of the proceeds of the
moveable estate. The proceeds of the immoveable estate are to be applied in payment of the debts on instruments not
under seal until one-half of the debts has been discharged. This will leave Rs. 5,000 which are to be distributed
rateably amongst all the creditors without distinction, in proportion to the amount which may remain due to them

(e) It is after the above payments are made that legacies can be paid. Debts of every description have to be paid
before any legacy (S 325). If the estate is subject to any contingent liabilities, the legatee may be called upon to give
a sufficient indemnity to meet the liabilities whenever they may become due. (S. 326) The executor has no right to
pay one legatee in preference to another.

If the assets, after payment of debts, necessary expenses and specific legacies, are not sufficient to pay all the
general legacies in full, the latter shall abate or diminish in equal proportions (S 327) Where there is a specific
legacy and the assets are sufficient for the payment of debts and necessary expenses. the thing specified must be
delivered to the legatee without any abatement (S 328) A demonstrative legacy must primarily be paid out of the
fund indicated If the funds do not suffice, the remainder ranks as a general legacy (S. 329). If the assets are not
sufficient to answer the debts and the specific legacies, an abatement shall be made from the latter rateably in
proportion to their respective amounts (S 330)

Illustration.- A has bequeathed to B a diamond ring valued at Rs. 500, and to C a horse valued at Rs. 1,000 It is
found necessary to sell all the effects of the testator; and his assets, after payment of debts, are only Rs. 1,000. Of
this sum, Rs. 333.33 are to be paid to B and Rs. 666.67 to C.

Right of retainer by executor or administrator (S. 323)

Under section 323, no creditor has a right of priority over another; but the executor or administrator must pay all
such debts as he knows of. including his own, equally and rateably, as far as the assets of the deceased will extend.

These words ’including his own’ show that under sec. 328 of this Act, the executor has no right to retain his own
debt in preference to the debt of other creditors. He must pay all the debts, including his own, equally and rateably.
But it would appear that if the assets are sufficient to pay all the debts in full, an executor may retain his own debt,
even though it is barred by limitation. However, this right of retainer does not give a charge on the property not in
possession of the executor

10. DISABILITIES OF AN EXECUTOR OR ADMINISTRATOR (Ss. 309-310)

An executor or administrator is subject to two disabilities :

1. He cannot receive commission or agency charges on a scale higher than what is fixed in respect of the
Administrator-General. (S. 309)

2 He cannot directly or indirectly purchase the property of the deceased If he does so, the transaction is voidable at
the instance of any other interested person (S 310)

11. EXECUTORS OF THEIR OWN WRONG (Ss. 303-304)

Who is an ’executor de son tort’ (S. 303)

A person who intermeddles with the estate of the deceased or does any other act which belongs to the office of
executor, while there is no rightful executor or administrator in existence, thereby makes himself an executor of his
own wrong (executor de son tort). (S. 303)

Illus.—(i) A sues or gives away or sells some of the goods of the deceased, or takes them to satisfy his own debt or
legacy or receives payment of the debts of the deceased. He is an executor of his own wrong.

(ii) A, having been appointed agent by the deceased in his lifetime to collect his debts and sell his goods, continues
to do so after he has become aware of his death. He is an executor of his own wrong in respect of acts done after he
has become aware of the death of the deceased.

(iii) A sues, as executor of the deceased, not being such. He is an executor of his own wrong.

Exceptions.— Intermeddling for the purpose of

1. Preserving the goods of the deceased; or
2. Providing for his (i) funeral; or (ii) for the immediate necessities of his family or property; or

3. Dealing in the ordinary course of business with the goods of the deceased received from another—

does not make a person an executor de son tort.

Thus, a person is said to be an executor de son tort if he—

(a) intermeddles with the estate of the deceased, or

(b) does any act belonging to the office of executor

—when there is no rightful executor or administrator in existence.

It is to be noted that a person can be held liable as an executor de son tort only when there is no rightful executor or
administrator in existence. Thus, Z proves the will of the testator arid obtains probate thereof. A then intermeddles
with the estate Here, A is not an executor de son tort, but a trespasser In order to constitute a person an executor of
his own wrong, there must be no rightful executor or administrator already in existence.

His liability (S. 304)

An executor de son tort is liable to three types of persons and only to a certain extent
He is answerable
1. To the rightful executor or administrator, or
2. To any creditor of the deceased, or
3. To any legatee under the will.

He is liable to the extent of the assets which may have come to his hands after deducting—

(a) payments made to the rightful executor or administrator. and

(b) payments made in due course of administration.

It may be noted that a legatee is not entitled to represent the estate of the deceased unless he obtains letters of
administration with the will annexed. If he acts without taking out letters, he will be regarded as an executor de son
tort. Thus, if a legatee. without taking out letters, sells some of the goods of the deceased, or takes them to satisfy
his own legacy, he becomes an executor de son tort.

12. LIABILITY OF AN EXECUTOR OR ADMINISTRATOR FOR DEVASTATION (Ss. 368-369)

Ss. 368 and 369 deal with maladministration by an executor, technically known as ‘devastavit’. S. 368 provides that
when an executor or administrator misapplies the estate of the deceased, or subjects it to loss or damage, he is liable
to make good the loss or damage. so occasioned.

Illus.— (i) The executor pays out of the estate an unfounded claim. He is liable to make good the loss.

(ii) The deceased had a valuable lease renewable by notice which the executor neglects to give at the proper time.
The executor is liable to make good the loss.

(iii) The deceased had a lease of less value than the rent payable for it, but terminable on notice at a particular time.
The executor neglects to give the notice. He is liable to make good the loss.

S. 369 then lays down that when an executor or administrator occasions a loss to the estate by neglecting to get in
any part of the property of the deceased, he is liable to make good the amount.

Illus.— (i) The executor absolutely releases a debt due to the deceased from a solvent person, or compounds with a
debtor who is able to pay in full The executor is liable to make good the amount.

(ii) The executor neglects to sue for a debt till the debtor is able to plead that the claim is barred by limitation, and
the debt is thereby lost to the estate The executor is liable to make good the amount.

Summary of Ss. 368-369

When an executor or administrator—

(1) misapplies the estate of the deceased, or
(2) subjects it to loss or damage, or
(3) occasions a loss to the estate by neglecting to get in any part of the property of the deceased,— he is liable to
make good the loss or damage so occasioned, and in case (3), to make good the amount of the loss occasioned by
his neglect.

This species of conduct on the part of the executor or administrator is technically called Devastavit, (i.e., wasting of
the estate) and such person is called a Devastant. It may be noted that devastavit by one executor will not make his
co-executor liable, unless the latter has intentionally contributed to it.

13. GENERAL TOPICS AS TO EXECUTORS AND ADMINISTRATORS (Ss. 327-367)

A. ABATEMENT OF LEGACIES (Ss. 149, 175 & 327-331)

There are six rules as to abatement of legacies. Abatement means reduction of a legacy in a certain proportion. The
six rules as to abatement of a legacy are :

(1) If there is a deficiency of assets to pay legacies, a specific legacy is not liable to abate with the general legacies.
(S. 149)

(2) Where an annuity is bequeathed, but the assets of the testator are not sufficient to pay all the legacies given by
the will, the annuity abates in the same proportion as the other pecuniary legacies given by the will. (S. 175)

(3) If the assets, after payment of debts, necessary expenses and specific legacies, are not sufficient to pay all the
general legacies in full, the general legacies abate, or will be diminished in equal proportion, and the executor has no
right to pay any one legatee in preference to another, or to retain any money on account of a legacy to himself or to
any person for whom he is a trustee. (S. 327)

(4) Where there is a specific legacy, and the assets are sufficient for the payment of debts and necessary expenses—
the thing specified must be delivered to the legatee without any abatement. (S. 328)

(5) Where there is a demonstrative legacy and the assets are sufficient for the payment of debts and necessary
expenses— the legatee has a preferential claim for payment of his legacy out of the fund from which the legacy is
directed to be paid until such fund is exhausted, and if after the fund is exhausted, part of the legacy still remains
unpaid, he is entitled to rank for the remainder against the general assets as for a legacy of the amount of such
unpaid remainder. (S. 329)

(6) If the assets are not sufficient to pay the debts and specific legacies, an abatement is to be made from the latter
rateably in proportion to their respective amounts. (S. 330)

Illustration.— A has bequeathed to B a diamond ring valued at Rs. 500, and to C a horse, valued at Rs. 1,000. It is
found necessary to sell all the effects of the testator; and his assets, after payment of debts, are only Rs. 1,000. Of
this Rs. 333.33 are to be paid to B, and Rs. 666.67 to C.

For the purpose of abatement, a legacy for life, a sum appropriated by the will to produce an annuity, and the value
of an annuity when no sum has been appropriated to produce it, is to be treated as general lagacies. (S. 331)

B. ASSENT TO A LEGACY BY EXECUTOR OR ADMINISTRATOR (Ss. 332-337)

Every legatee, whether general or specific, and whether of moveable or of immoveable property, must obtain the
executor’s assent to the legacy, before his title as legatee can be complete and perfect. Hence, S. 332 provides that
the assent of the executor or administrator is necessary to complete a legatee’s title to his legacy

(i) A, by his will, bequeathed to B his Government paper which is in deposit with the State Bank of India The Bank
has no authority to deliver the securities, nor B a right to take possession of them, without the assent of the executor.
(ii) A, by his will, has bequeathed to C his house in Kolkata in the tenancy of B. C is not entitled to receive the rents
without the assent of the executor or administrator.

Such assent to a specified bequest is sufficient to divest his interest as executor or administrator therein, and to
transfer the subject of the bequest to the legatee, unless the nature or the circumstances of the property require that
it should be transferred in a particular way.

The assent may be verbal, and it may be either express or implied from the conduct of the executor or
administrator

Illus.— (i) A horse is bequeathed. The executor requests the legatee to dispose it of, or a third party proposes to
purchase the horse from the executor, and he directs him to apply to the legatee. Assent to the legacy is implied

(ii) The interest of a fund is directed by the will to be applied for the maintenance of the legatee during his minority.
The executor commences so to apply it This is an assent to the whole of the bequest.

(iii) A bequest is made of a fund to A, and after him to B. The executor pays the interest of the fund to A. This is an
implied assent to the bequest to B.

(iv) Executors die after paying all the debts of the testator, but before satisfaction of specific legacies. Assent to the
legacies may be presumed

(v) A person to whom a specific article has been bequeathed takes possession of it, and retains it without any
objection on the part of the executor His assent may be presumed.

The Calcutta High Court has held that no registered deed is required for the assent of the executor referred to in S.
333. (Apurba Chandra Sen v Kamal Kumar Dutta, A I.R. 1976 Cal. 62)

The assent to a legacy may be conditional, and if the condition is one which he has a right to enforce, and it is not
performed, there is no assent

illus.— (I) A bequeaths to B his lands of Sultanpur, which at the date of the will, and at the death of A, were subject
to a mortgage for Rs. 10,000 The executor assents to the bequest, on condition that B shall, within a limited time,
pay the amount due on the mortgage at the testator’s death The amount is not paid. There is no assent.

(a) The executor assents to a bequest on condition that the legatee shall pay him a sum of money. The payment is not
made. The assent is nevertheless valid.

When the executor or administrator is a legatee, his assent to his own legacy is necessary to complete his title to it,
in the same way as it is required when the bequest is to another person, and his assent may, in like manner, be
expressed or implied.

Assent is to be implied if, in his manner of administering the property, he does any act which is referable to his
character of legatee and is not referable to his character of executor or administrator.

illus.— An executor takes the rent of a house or the interest of Government securities bequeathed to him, and applies
it to his own use. This is assent.

Effect of executor’s assent (S. 336)

The assent of the executor or administrator to a legacy gives effect to it from the death of the testator.

Illus.— (i) A legatee sells his legacy before it is assented to by the executor. The executor’s subsequent assent
operates for the benefit of the purchaser, and completes his title to the legacy.

(ii) A bequeaths Rs. 1,000 to B with interest from his death. The executor does not assent to his legacy until the
expiration of a year from A’s death. B is entitled to interest from the death of A.

Even though given at a later stage, such consent gives effect to the legacy from the death of the testator.

Executor’s year (S. 337)

An executor or administrator is not bound to pay or deliver any legacy until the expiration of one year from the
testator’s death, even lithe testator desires that it should be paid earlier This is known as ’Executor’s year’.

Illus.- A by his will directs his legacies to be paid within six months after his death. The executor is not bound to
pay them before the expiration of a year.

Under S. 337, an executor has a year within which to inform himself about the slate of the property, and during that
period, he cannot be compelled to pay or deliver any legacy. This is called ”the executor’s year”.

There is nothing to prevent an executor from paying within one year it he so chooses, but he cannot be compelled
by the legatee to pay within that time, even it the testator directs that all the legacies should be paid at an earlier date
This allowance of one year is given for convenience in order that the debts of the testator may be ascertained, so as
to make a proper distribution of the estate The testator may extend the period by his will, but he cannot make it less
than the statutory period of one year.

C. LAW AS TO ANNUITIES (Ss. 173 - 176 & 338 - 340, 343, 351 - 355)

ANNUITY- An annuity is a yearly payment of a sum of money granted to another (called the ’annuitant’) for life or
for a given number of years.

The law relating to annuity can be discussed under the following two heads :

1. Bequest of annuities : Ss. 173-176 (already discussed in an earlier Chapter.)

2. Payment and apportionment of annuities . Ss 338-355.

1. Bequests of annuities (Ss. 173-176)

There are four rules as to bequests of annuities, viz..- (a) An annuity created by a will is, in the absence of a
contrary intention, payable for life only (S. 173)

(b) Where, however, the will directs that an annuity be provided out of proceeds of property, or out of property
generally, or where money is bequeathed to be invested in purchase of an annuity, the legatee takes a vested interest
in the legacy, and the legatee is entitled, at his option, to have an annuity purchased for him or to receive the money
appropriated for that purpose by the will on the testator’s death. (S 174)
(c) If the assets of the testator are insufficient to pay all the legacies. an annuity abates in the same proportion as
other pecuniary Legacies (S 175)

(d) Where there is a bequest of an annuity and the residue, the annuity is to be satisfied first. (S. 176)

2. Payment and apportionment of annuities (Ss. 338-340, 343, 354-355)

Where no time is fixed, an annuity commences from testator’s death and the first payment is to be made at the end
of one year after his death If. however, the testator directs the annuity to be paid quarterly or monthly, the first
payment becomes due at the end of that quarter or month, though the executor or administrator is not bound to pay it
till the end of the year. Successive payments may be made on the anniversary of the day fixed for the first payment.
If the annuitant dies in the interval between the times of payment, an apportioned share of the annuity goes to his
representative. Where, however, there is no fund charged for the payment of an annuity, Government securities must
be purchased for the annuitant.

Interest cannot be claimed for arrears of an annuity within the first year after testator’s death, and if a sum is
directed to be invested to produce an annuity, interest becomes payable from the death of the testator.

D. RULES FOR THE INVESTMENT OF FUNDS TO PROVIDE FOR LEGACIES (Ss. 341-348)

There are six rules enunciated in Ss. 341 to 348 to be observed in investing certain funds to provide for legacies.

When the legacy given is —

1. A legacy for life (not being a specific legacy)—

—the sum bequeathed is, at the end of the year, to be invested in securities authorised by the High Court; interest on
such securities is to be paid to the legatee as it accrues. (S. 341)

2. A general legacy to be paid at a future time

—a sum sufficient to meet it should be invested in securities; intermediate interest forms part of the residue of the
testator’s estate. (S. 342)

3. An annuity—

—if no fund is charged with its payment, or is appropriated by the will to answer it, Government securities of that
amount should be purchased. (S. 343)

4. A contingent bequest—

—no investment need be made; the residuary legatee may be given the whole, and security taken from him to pay
the contingent legacy if it becomes due. (S. 344)

5. Residuary legacy for life only—

—if the testator has given directions for investing the estate in specific securities, the same must be converted into
money and invested as directed (S. 346), but if no such direction is given, the estate may be invested in authorised
securities (S 345) The time and manner of conversion and investment is left to the discretion of the executor. Until
investment, the legatee gets 4% interest upon the market value of such part of the fund as has not been invested, and
6% if the testator was a Hindu, Muslim, Buddhist, Jain or Sikh or an exempted person (S 347)

6. If a minor legatee is entitled to immediate possession of the thing

bequeathed, and if the will does not say to whom it is to be paid in his behalf, the executor should pay it into the
Court of the District Judge who issued the grant to the account of the legatee; the money is then to be invested in
Government securities and the interest applied for the benefit of the minor (S 348)

E. RULES FOR THE PRODUCE AND INTEREST OF LEGACIES (Ss. 349-353)

Ss. 349 to 353 lay down certain rules for the produce and interest of legacies as under :

Rules for the produce of legacies (Ss. 349-350)

Except when a legacy is contingent, the legatee of a specific or general residuary bequest is entitled to the produce
of the fund or thing from the testator’s death; if it is contingent, the produce from the death of the testator till the
vesting of the legacy forms part of the testator’s general estate. In case of a general residuary bequest, which is
contingent, such income goes as undisposed of (Ss 349-350)

Illustrations.— (i) A bequeaths his flock of sheep to B. Between the death of A and delivery by his executor, the
sheep are shorn or some of the ewes produce lambs. The wool and lambs are the property of B.

(ii) A bequeaths his Government securities to B, but postpones the delivery of them till the death of C. The interest
which falls due between the death of A and death of C belongs to B, and must, unless he is a minor, be paid to him
as it is received.

(iii) The testator bequeaths all his four per cent Government promissory notes to A when he shall complete the age
of 18. A, if he completes that age, is entitled to receive the notes, but the interest which accrues in respect of them
between the testator’s death and A’s completing 18, forms part of the residue.

(iv) The testator bequeaths the residue of his property to A, a minor, to be paid to him when he shall complete the
age of 18. The income from the testator’s death belongs to A.

(v) The testator bequeaths the residue of his property to A, when he shall complete the age of 18. A, if he completes
that age, is entitled to receive the residue. The income which has accrued in respect of it since the testator’s death
goes as undisposed of.

It is. however, also clarified that mere postponement of delivery does not make the bequest a contingent one. (Ss.
349-350)

Rules as regards interest (Ss. 351-353)

1 Where time is fixed in the will for the payment of a general legacy. interest runs from the time so fixed, and
interest upto such time forms part of the residue of the estate. But, where the legatee is a minor and the testator is a
parent or ancestor or stands in loco parentis to the legatee, interest runs from the death of the testator, except when a
specific sum is given by the will for the maintenance of the minor (S 352)

2 Where no time is fixed, interest begins to run from the expiration of one year from the testator’s death; but it runs
from the death of the testator if (i) the legacy is bequeathed in satisfaction of a debt, or (ii) where the testator is a
parent or ancestor of the legatee or stands in loco parentis to him or when the bequest is to a minor accompanied
with a direction to pay for his maintenance out of it. (S. 351) The rate of interest is 4 per cent per annum, and 6 per
cent if the testator was a Hindu, Muslim, Buddhist, Jain or Sikh or an exempted person. (S. 353)

F. REFUNDING OF LEGACIES (Ss. 356-367)

Often, it happens that a legacy once given, has to be refunded under certain circumstances. The questions which
arise as to the refunding of legacies are two. Who can compel whom to refund, and secondly, when? The person who
can be compelled to refund is always a legatee, because he has received the legacy and it is he who must refund it.
The following are the three types of persons who can compel a legatee to refund :

1. An executor or administrator
2. A creditor, and
3. Mother legatee.

1. An executor or administrator can compel a legatee to refund (Ss. 356-357, 359)

1. When assets prove insufficient to pay all the legacies, an executor or administrator who has paid one legatee
under the order of a Court, can call upon the legatee to refund (S. 356), but he cannot do so, if he has voluntarily
paid the legatee (i.e. not pursuant to any order of the Court). (S. 357)

2. Secondly, if the executor has paid the assets to legatees, and he is afterwards obliged to discharge a debt of which
he has no notice, the legatees have, in that case, to refund proportionate amounts. (S. 359)

2. A creditor can compel a legatee to refund (Ss. 360- 361)

If the creditor has not received payment of his debt, he can call upon a legatee to refund; the fact that the payment of
the legacy by the executor was voluntary or that the assets were insufficient at the time of his death to pay both debts
and legacies is immaterial. (S. 361)

If a creditor does not send in his claim against the estate of the deceased in answer to the notice issued by the
executor or administrator, the latter can distribute the assets, but the creditor can follow the assets in the hands of the
legatee. (S 390)

3. A legatee can compel another legatee to refund (Ss. 358,

362-364)

Ordinarily, a legatee can claim no refund from another legatee, even if he has not received payment of his legacy or
has been compelled to refund to a creditor, if the assets were sufficient to satisfy all the legacies at the time of
testator’s death The fact that the legacy was paid to him with or without suit or that the assets have subsequently
become insufficient because of the wasting by the executor is immaterial (S. 362) But, if the assets were not
sufficient at the testator’s demise to satisfy all the legacies. the unsatisfied legatee may first proceed against the
executor or administrator if he is solvent; if he is not solvent, he can proceed against the legatee for a refund to the
extent to which the satisfied legacy would have been reduced if the property had been properly administered (S 363-
364)

Illustrations.—A has bequeathed Rs. 240 to B. As 480 to C, and Rs. 720 to D. The assets are only As 1,200 and, if
properly administered, would give Rs. 200 to B, As 400 to C and As 600 to D. C and D have been paid their legacies
in full, leaving nothing to B. B can oblige C to refund Rs. 80, and D to refund As 120

Again, if the bequest is subject to a condition and the condition is not performed within the time specified, and the
executor has thereupon, without fraud, distributed the assets, the legatee, if he afterwards performs the condition
within the further time allowed by the Court, can ask other legatees to refund, but cannot proceed against the
executor. (S. 358)

MODE OF REFUNDING (S. 364-367)

1. The refund cannot exceed the sum by which the satisfied legacy ought to have been reduced if the estate had been
properly administered. (S. 364)

2. The refund is to be made without interest. (S. 365)

3 After payment of debts and legacies, the surplus is to be paid to the residuary legatee, if any, appointed by the will.
(S. 366)

4 If a person with a foreign domicile has assets in both countries—in India and in that country, — the executor or
administrator of the estate in this country, may, after discharge of all claims and debts, transfer the assets to the
executor in the country of the deceased for distribution. (S 367)

G. LAW AS TO RESIDUARY LEGATEES (Ss. 102, 103, 334, 350 & 366)

RESIDUARY LEGATEE.— A residuary legatee is one to whom the testator gives what remains of his property after
the legacies and bequests are made Now, it is settled law that there is no residue until alter the payment of debts,
funeral and testamentary expenses, cost of administration of the estate of the testator and the payment of all the
charges Until all these are paid, there is no residue. Residue means a// property of which no effectual disposition is
made by the will.

The ’residue’ of the estate of the deceased is made up of (a) all the properties which he has not made bequests of,
and (b) all the properties which he has bequeathed, but the bequest cannot be given effect to, for any reason If, after
making determinate legacies, the testator makes a bequest of the residue of his estate in favour of a legatee, such
legatee of the residue is called the ’residuary legatee’. Under a residuary bequest, the legatee is entitled to all
property belonging to the testator at the time of his death of which he has not made any other testamentary
disposition which is capable of taking effect.

How constituted (S. 102)

A residuary legatee is constituted by any words of the testator showing’ an intention that the person designated by
him shall take the surplus or residue of his property.

His rights (Ss. 103, 232, 344, 350, 366)

A residuary legatee is entitled to all the property of which the testator has not made a valid testamentary disposition :

(i) He is entitled to prove the will if the testator has not appointed any executor or if the executor is dead.

(ii) If a bequest given to him is contingent, he may, on giving security, get the amount of the whole residue
transferred to himself.

(iii) A residuary legatee under a general residuary bequest is entitled to the produce of the residuary fund, except
when the legacy is contingent.

(iv) He is entitled to the surplus of the deceased’s property after payment of debts, etc.
CHAPTER X

SUCCESSION CERTIFICATES (Ss. 370-390)

The provisions of this Chapter have been taken from the Succession Certificate Act. 1889. As seen earlier, S. 214 of
the Act lays down that no decree against a debtor of a deceased person can be passed, nor can an application for its
execution be made, unless the person claiming the debt or applying for its execution produces a probate or letters of
administration or Succession Certificate granted under this Chapter. It may be noted, therefore, such grant of a
certificate does not determine any question of title, nor does it decide as to what property does or does not belong to
the deceased. It merely enables the grantee to collect the assets belonging to the deceased. Moreover, a Succession
Certificate will not be granted in cases in which probate (or letters of administration) is (or are) compulsory

The object of granting a Succession Certificate is to facilitate the collection of debts, and not to enable the parties to
litigate questions of disputed title or decide what property does not belong to the estate of the deceased; it merely
enables the party to whom the Certificate is granted to collect any debt or security belonging to the deceased

What is a Succession Certificate.— A Succession Certificate granted under this Act is a document giving authority to
the person who obtains it, to represent the deceased for the purposes of collecting the debts and securities due to him
or payable in his name It is meant for the protection of debtors, so that they should know as to whom they can safely
pay the debt due to the deceased person The Certificate does not establish the title of the grantee as the heir of the
deceased, but only furnishes him with an authority to collect the debts and allows the debtors to make payment to
the grantee without incurring any risk.

The Succession Certificate empowers the grantee to collect the debts and securities due to the deceased and
mentioned in the certificate.

Succession Certificate when granted (S. 373)

A Succession Certificate is granted (i) if the Judge decides the right thereto to belong to the applicant; or (n) if the
applicant appears to him to have prima facie the best title thereto

When not granted (Ss. 370 and 385)

A Succession Certificate cannot be granted (i) with respect to any debt or security to which a right is required to be
established either by probate or letters of administration, except in the case of Indian Christians, or (ii) when there is
a previous certificate or letters of administration already in force

Who can grant it (Ss. 371 and 388)

(1) The District Judge. provided the deceased ordinarily resided at the lime of his death, or had any part of his
property within his jurisdiction, or (2) any inferior Court, if invested by State Government with powers of a District
Judge, — may grant a Succession Certificate.

Who can apply for Succession Certificate.— Any person of sound mind, and not a minor, can apply to the Court
having jurisdiction, for a Succession Certificate, provided he has an interest in the estate of the deceased A
Certificate can be granted to a minor only on an application made by him through his guardian.

Contents of application for Certificate (S. 372)

An application for a Succesion Certificate may be made in respect of any debt due to the deceased creditor or in
respect of a portion thereof 11 has to be made by a petition signed and verified by the applicant, together with a
deposit of a sum for Court-fee charges and containing the following particulars, viz.-

(a) the time of deceased’s death;

(b) the place where he ordinarily resided;
(c) names and residences of his relatives;
(d) right in which the petitioner claims;
(e) absence of any impediment either in the grant or in the validity of the certificate; and
(f) debts and securities in respect of which it is applied for.

Any intentional false averment is punishable under S. 198 of the I.PC. (Using as true a certificate known to be false).

It may be noted that no second appeal lies against an order rejecting an application under S. 372. (Asoke Naidu v.
Raymond Mulu., A.I.R. 1976 Cal. 272 )

DRAFT OF A PETITION FOR SUCCESSION CERTIFICATE (BOM H.C. RULES, FORM NO.103)

IN THE HIGH COURT OF JUDICATURE AT MUMBAI TESTAMENTARY AND INTESTATE

JURISDICTION

Petition of Succession Certificate in respect of certain securities/debts belonging to PQR…………………. Deceased.

Petitioner.

SHEWETH :

1. That the abovenamed PQR died at Mumbai on or about the 2nd day’ of April, 2010.

2. That the said deceased ordinarily resided (or left property) within Greater Mumbai.

3. That the said deceased died intestate and that due and diligent search has been made for a will but none has been
found (or the said deceased died leaving a will dated……………and executed at (Mumbai) a copy of which is
hereto annexed and marked -A”).

4. That the said deceased at the time of his death left him surviving as his only next-of-kin according to Hindu Law,
residing at…………….

5. That the Petitioner as (state relationship) of the deceased, claims to be entitled to a (half) share of the estate.

6. That there is no impediment under S. 370 of the Indian Succession Act, 1925, or under any other provision of this
Act or any other enactment, to the grant of the Certificate or the validity thereof, if it were granted.

7. That the Petitioner has truly set forth in Schedule I hereto, the securities in respect of which the Certificate is
applied for. The Succession Certificate is required for the purpose of (mention the purpose here). The said assets in
respect of which the Succession Certificate is required are under the value of Rs…………………

8. That no application has been made to any District Court or Delegate or to any High Court for probate of any will
of the said deceased or for letters of administration with or without the will annexed to his property and credits.
9. That no application for Succession Certificate in respect of any debt or security belonging to the estate of the
deceased has been made to any District Court or Delegate or to any High Court

The Petitioner therefore prays that a Succession Certificate may be granted to the Petitioner in respect of the debts
and securities set forth in Schedule I hereto with power to (sell, etc.)

VERIFICATION

I, ABC. the petitioner abovenamed. do solemnly declare that what is stated in paragraphs 1 to 5 is true to my own
knowledge, and that what is stated in the remaining paragraphs is true to the best of my information and belief, and
believe the same to be true

Procedure subsequent to application (S. 373)

If the District Judge entertains the application, he must fix a day for hearing, and cause a notice to be served, posted
or published If after hearing the parties in a summary manner, he decides in favour of the applicant, he must make
an order for the grant of Certificate to him. If he cannot decide the matter in a summary mariner he may nevertheless
grant it to the applicant if he appears to have a prima facie title thereto. A joint Certificate may be granted, regard
being had to the extent of interest in, and fitness of the applicant to the Certificate.

The District Judge may require the grantee of a Certificate to give a bond or security with surety for rendering an
account of debts and securities received by him, and the Judge may assign such bond or security to any fit person
He may also extend a Certificate to any debt or security not originally specified therein, but then a further bond or
security has to be furnished by the grantee. He has likewise powers to amend the Certificate by conferring any of the
powers of the grantee relating to receipt of interest on the security or relating to any right to negotiate or transfer the
security specified in the Certificate.

Extension of Certificate (Ss. 372, 376)

An application may be made in respect of any debt cr debis due to the deceased creditor or in respect of any portion
thereof. On an application by the Certificate-holder, the District Judge may extend the Certificate to a debt or
security not included in the original Certificate.

Appeal (S. 384)

An appeal against the order of a District Judge may be preferred to the High Court within the time allowed for an
appeal under the Civil Procedure Code 0 a. within 90 days Art.15, Limitation Act).

Contents of Certificate (S. 374)

The Succession Certificate will specify (1) the debts and securities mentioned in the petition and (2) the power either
(a) to receive interest or dividends on, or (b) to negotiate or transfer; or (c) both to receive and to negotiate the
interest or dividends on the securities.

Form of Certificate (Sch. VIII)

////////////////////////////////////////////////////////////////
In the Court of
To A. B.

Whereas you applied on the 2nd day of June, 2010, for a Certificate under Part X of the Indian Succession Act,
1925, in respect of the following debts and securities, namely :—

Debts
Serial Name of Amount of debt Description and date
Number Debtor including interest on of instrument, if any,
date of application of by which the debt is
Certificate secured

Securities

Serial Description Market value

Distinguishing Name, title or Amount
Number number of class of secu- of par of security on
letter or rity value of date of appli security security
cation of
Certificate
—
///////////////////////////////////////
This Certificate is accordingly granted to you, and empowers you to collect those debts, (and), (to receive) (interest)
(dividends) (on) (to negotiate) (to transfer) (those securities).

Dated this………………….day of……………..2010 District Judge.

Effect of Certificate (Ss. 380-382)

(1) Where a Succession Certificate has been granted —

(a) to a resident within a foreign Stale by an Indian representative accredited to that State; or
(b) to a resident within any Part B State, before the commencement of the part B States (Laws) Act, 1951. or
(c) to a resident within the State of Jammu and Kashmir, after the commencement of Part B states (Laws) Act,
1951,—

the Certificate has, when properly stamped, the same effect in India as a Certificate granted or extended under this
Chapter

(2) A Succession Certificate is conclusive of the representative title of the holder thereof as against the debtors

(3) A Succession Certificate affords full indemnity to all persons as regards payments made, or dealings had, in good
faith, to or with the person to whom the Certificate was granted [If granted by a Foreign State and recognised by the
Political Agent of that State, it has the same effect as if granted in India.)

Revocation of Certificate (S. 383)

S. 383 lays down the circumstances in which a Succession Certificate can be revoked. These are the same as those
for the revocation of a grant of probate or letters enumerated in S. 263, with one more ground (clause (e) below)
granted under this Part. Thus, a Succession Certificate may be revoked for any of the following five reasons :
(a) that the proceedings to obtain the Certificate were defective in substance;
(b) that the Certificate was obtained fraudulently, by the making of a false suggestion, or by the concealment from
the Court of something material to the case:
(c) that the Certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify
the grant thereof, though such allegation was made in ignorance or inadvertently.
(d) that the Certificate has become useless and inoperative through circumstances;
(e) that a decree or order made by a competent Court in a suit or order proceeding with respect to effects
comprising debts or securities specified in the Certificate renders it proper that the Certificate should be revoked.

Certificate when invalid (S. 385)

A Succession Certificate is invalid in two cases. It is invalid if (1) a previous Certificate in respect of debt is already
in existence, or if (2) a probate is or letters of administration were previously granted and are in force. (S 385)

Ss 386, 387 and 390 lay down three supplemental rules, as follows

1. Where a Certificate under this Chapter has been superseded or is invalid by reason of the Certificate having
been revoked, or by reason of a Certificate having been previously granted, or for any other cause, all payments
made, or dealings had as regards debts and securities specified in the superseded or invalid Certificate, to or with the
holder of that Certificate in ignorance of its supersession or invalidity, will be good against claims under any other
Certificate. (S. 386)

2. No decision under this Chapter upon any question or right between the parties will operate as a bar to any other
proceedings relating to debts and securities as also liabilities of the person concerned. (S. 387)

3. Notwithstanding anything contained in Bombay Regulation VIII of 1827, the provisions contained in this Chapter
and the provisions in the Act relating to exhibition of inventories and accounts by administrators apply also to
Certificates granted under the said Regulation.
SCHEDULE (See Section 57)

PROVISIONS OF CHAPTER VI APPLICABLE TO CERTAIN WILLS AND CODICILS DESCRIBED IN

SECTION 57
///////////////////////////////////////////
Sections 59, 61. 62, 63, 64, 68, 70, 71, 73, 74, 75, 76, 77, 78, 79, 80, 81. 82, 83, 84, 85. 86, 87, 88, 89, 90, 95, 96,
98, 101, 102,

103, 116, 130, 143, 156, 169,

104, 117, 131, 144, 157, 170,

105, 119, 132, 145, 158, 171,

106, 120, 133. 146, 159, 172,

107, 121, 134, 147, 160, 173,

108, 122, 135, 148, 161, 174,

109, 123, 136, 149, 162, 175,

110, 124. 137, 150, 163, 176,

111, 125, 138, 151, 164, 177,

112, 126, 139, 152. 165, 178,

113, 127, 140, 153, 166, 179,

114, 128, 141. 154, 167, 180,

115, 129, 142, 155, 168, 181,

182, 183, 184, 185, 186, 187, 188, 189, 190.

////////////////////////////////////////////
Restrictions and modifications in application of foregoing section: 1. Nothing therein contained shall authorise a
testator to bequeath property which he could not have alienated inter vivos or to deprive any persons of any right of
maintenance of which but for the application of those sections he could not deprive them by will

2. Nothing therein contained shall authorise any Hindu. Buddhist, Sikh, or Jain to create in property any interest
which he could not have created before the first day of September. 1870.

3. Nothing therein contained shall affect any law of adoption or intestate succession.

4. In applying section 70, the words ”than by marriage or shall be omitted.

5. In applying any of the following sections, namely, sections 75, 76, 105, 109, 111, 112, 113, 114, 115 and 116 to
such wills and codicils, the words ’son’, ’sons’, ’child’ and ’children’ shall be deemed to include an adpoted child;
and the words ”grandchildren” shall be deemed to include the children, whether adopted or natural-born, of a child
whether adopted or natural-born; and the expression ’daughter-in-law” shall be deemed to include the wife of an
adopted son
APPENDIX

SPECIMEN FORMS OF A SIMPLE WILL AND CODICIL

Specimen form of a simple will

I, ABC. of Bombay. Indian inhabitant, aged 60 years, residing at Churchgate Manor, Churchgate, Mumbai 400 020,
revoke all my former wills. codicils and other testamentary dispositions, if any, and declare this to be my last will
and testament.

1. I appoint (1) Mr. POR and (2) Mr. DEF to be jointly and/or singly the executors and trustees of this will. They are
hereinafter referred to as ”the trustees”.

2. I direct my trustees to spend such sum as they may deem reasonable, not exceeding Rs. 10,000/-, for my funeral
and obsequial ceremonies. My trustees shall not be required to account for the same to any person whatsoever.

3. I direct my trustees to recover all my assets and outstandings, and to pay thereout all my debts and liabilities, if
any, as also probate duty and other liabilities, which may become payable in respect of my death.

4. I direct that all expenses that may be incurred in connection with my last illness, if any, such as for medicines,
doctors, hospital, nursing home, etc , which shall remain unpaid at the date of my death, as also unpaid salaries of
persons attending on me and all the household servants and unpaid rent, etc., shall be first paid out of my assets

5. I give, devise and bequeath my ownership flat, being Flat No. 10 on the second floor of Churchgate Manor,
Churchgate, Mumbai 400 020, along with the furniture, fixtures and the entire contents thereof, to my wife, Rekha.

6. I give, devise and bequeath a sum of Rs. 50,000/- (Rupees fifty thousand only) to my son, Sun’’, and a sum of Rs.
50,000/- (Rupees fifty thousand only) to my daugther, Sunita.

7. I give, devise and bequeath the rest and residue of my estate, effects and other properties, both moveable and
immoveable, of whatsoever nature and wheresoever situate, of which I am possessed of or otherwise well and
sufficiently entitled to at the time of my death to my wife, Rekha.

8. In the unfortunate event of my wife Rekha predeceasing me or dying simultaneously with me, all the property
which she would be entitled to under this Will shall be divided amongst my son, Sunil, and my daughter, Sunita, in
equal shares.

9. I hereby record that I have made and executed this will of my own free will and accord, and in a sound state of
health and mind, and after having fully understood the implications thereof

IN WITNESS WHEREOF, I, ABC, have hereunto set and subscribed my hand this 23rd day of Septemebr, 20 .

SIGNED by the abovenamed testator as arid for his last will and testament, in the presence of us both, both being
present at the same time, who at his request and in his presence, and in the presence of each other, have hereunto set
and subscribed our names as witnesses :

(Signature of ABC)

1. (Signature of first witness)

2. (Signature of second witness)

Specimen form of a codicil

I, ABC of Mumbai, Indian inhabitant. aged 60 years. residing at Churchgate Manor, Churchgate, Mumbai 400 020,
hereby make this Codicil to my last will and testament dated the 23rd day of September, 20 .

1 In clause 1 of the said will, I had appointed Mr POR and Mr DEF to be the executors and trustees of my sad will
As. unfortunately. Mr. DEF has recently expired (after the will was executed), in my said will dated 23rd
September, 20.. , clause 1 shall be substituted by the following clause :

1. I appoint (1) Mr. POR and (2) Mr XYZ to be jointly and/or

singly the executors and trustees of my will. They are hereinafter referred to as ”the trustees”

2. I declare that all the other provisions of my said will dated 23rd September, 20…, shall remain unaltered and shall
have full force and effect, with clause 1 thereof substituted as stated above.

IN WITNESS WHEREOF, I. ABC, have hereunto subscribed my hand this………………day of December, 20……..

SIGNED by the abovenamed testator as the first codicil to his last will and testament, dated 23rd September. 20….,
in the presence of us both, both being present at the same time, who at his request and in his presence and in the
presence of each other have
hereunto set and subscribed our names and witnesses :

(Signature of ABC)

1. (Signature of the first witness)

2. (Signature of the second witness)