THE INDIAN SUCCESSION ACT, 1925
[XXXIX of 1925]
[30th
September [1925]
CONTENTS
PRELIMINARY
1. Short title.
2. Definitions.
3. Powers of State
Government to exempt any race, sect or tribe in the State from operation of
Act.
Of Domicile
5. Law regulating succession
to deceased person’s immovable and movable property, respectively.
6. One domicile only affects
succession to movable.
7. Domicile of origin of
person of legitimate birth.
8. Domicile of origin of
illegitimate child.
9. Continuance of domicile
of origin.
10. Acquisition of new domicile.
11. Special mode of acquiring domicile in India.
I2. Domicile not acquired by residence as representative of government, or as part of his family.
I3. Continuance of new
domicile.
15 Domicile acquired by
woman on marriage.
16. Wife’s domicile during
marriage.
17. Minor’s acquisition of new domicile.
18. Lunatic’s acquisition of
new domicile.
19. Succession to movable
property in India in the absence of proof of Domicile elsewhere.
Marriage
20. Interests and powers not acquired nor lost by marriage.
21. Effect of marriage between person domiciled and one not domiciled
in India.
22. Settlement of minor’s property in contemplation of marriage
Of consanguinity
24. Kindered or consanguinity.
27. Persons held for purpose
of succession to be similarly related to deceased.
28. Model of computing of
degrees of kindered.
Intestate succession
Preliminary
30. As to what property
deseased considered to have died intestate.
Rules in cases of intestates other than
Parsis
31. Chapter not to apply to
Parsis.
32. Devolution of such
property.
33A. Special provision where
intestate has left widow and no lineal descendant
34. Where intestate has left
no widow, and where he has left no kindered.
37. Where intestate has left
child or children only.
38. Where intestate has left no child, but grand-child or grand
children.
39. Where intestate has left only great grand-children or remoter
linear descendants.
41. Rules of distribution where intestate has left no lineal descendants.
42. Where intestate’s father
living.
43. Where intestate’s father
dead, but his mother, brothers and sisters living.
45. Where intestate’s father
dead and his mother and children of any deceased brother or sister living.
46. Where intestate’s father dead, but his mother living and no brother, sister, nephew or niece.
47. Where intestate has left
neither lineal descendant, nor father nor mother.
48. Where intestate has left
neither lineal descendant, nor parent, nor brother, nor sister.
49. Children’s advancements not brought into hotchpots.
Special rules for Parsi intestates
50. General principles
relating to intestate succession.
51. Division of intestate’s property among widow, widower, children and parents.
53. Division of share of
predeceased child of intestate leaving lineal descendants.
PART VI
Testamentary succession
Introductory
57. Application of
certain provisions of Part to a class
of wills made by Hindus, etc.
58. General application of
Part.
Of wills and codicils
59. Person capable of making
wills.
61. Will obtained by fraud,
coercion or importunity.
62. Will may be revoked or
altered.
Of the execution of unprivileged wills
63. Execution of unprivileged
wills.
64. Incorporation of papers
by reference.
Of privileged wills
66. Mode of making, and rules
for executing, privileged wills.
Of the attestation, revocation,
alteration and revival of wills
67. Effect of gift to
attesting witness.
68. Witness not disqualified
by interest or by being executor.
69. Revocation of will by
testator’s marriage.
70. Revocation of
unprivileged will or codicil.
71. Effect of obliteration,
interlineation or alteration in unprivileged will.
72. Revocation of privileged will or
codicil.
73. Revival of unprivileged
will.
Of the construction of wills
74. Wording of will.
75. Inquiries to determine
questions as to object or subject of will.
76. Misnomer or
misdescription of object.
77. When words may be
supplied.
78. Rejection of erroneous
particulars is description of subject.
79. When part of description
may not be rejected as erroneous.
80. Extrinsic evidence
admissible in cases of patent ambiguity.
81. Extrinsic evidence
inadmissible in case of patent ambiguity or deficiency.
82. Meaning of clause to be collected from
entire will.
83. When words may be
understood in restricted sense, and when in sense wider than usual.
84. Which of two possible
constructions preferred.
85. No part rejected, if it
can be reasonably construed.
86. Interpretation of words
repeated in different parts of will.
87. Testator’s intention to
be effectuated as far as possible.
88. The last of two
inconsistent clauses prevails.
89. Will or bequest void for
uncertainty.
90. Words describing subject
refer to property answering description
at testator’s death.
91. Power of appointment
executed by general bequest.
92. Implied gift to objects
of power in default of appointment.
93. Bequest to “heirs”, etc.,
of particular person without qualifying terms.
94. Bequest to
“representatives”, etc., of particular person.
95. Bequest without words of
limitation.
97. Effect of words describing
a class added to bequest to person.
98. Bequest to class of
persons under general description only.
101. Rules of construction where will purports to make two bequests to same person.
102. Constitution of residuary
legatee.
103. Property to which residuary
legatee entitled.
104. Time of vesting legacy in
general terms.
105. In What case legacy lapses.
106. Legacy does not lapse if
one of two joint legatees dies before testator.
107. Effect of words showing
testator’s intention to give distinct shares.
108. When lapsed share goes as
indisposed of.
110. Bequest to A for benefit of
B does not lapse by A’s death.
111. Survivorship in case of
bequest to described class.
Of void bequests
112. Bequest to person by
particular description who is not in existence at testator’s death.
113. Bequest to person not in
existence at testator’s death subject to prior bequest.
115. Bequest to a class of
persons some of whom may come under rules in Sections 113 and 114.
116. Bequest to take effect on
failure of prior bequest.
117. Effect of direction for
accumulation.
118. Bequest to religious or
charitable uses.
Of the vesting of legacies
119. Date of vesting of legacy
when payment or possession postponed.
120. Date of vesting when legacy
contingent upon specified certain event.
121. Vesting of interest in
bequest to such members of a class as shall have attained particular age.
Of onorous bequests
122. Onerous bequests.
123. One of two separate and
independent bequests to same person may be accepted, and other refused.
Of contingent bequests
124. Bequest contingent upon
specified uncertain event, no time being mentioned for its occurrence.
125. Bequest to such certain
persons as shall be surviving at some period not specified.
Of conditional bequests
126. Bequest upon impossible
condition.
127. Bequest upon illegal or condition.
128. Fulfillment Of condition
Precedent to vesting of legacy.
129. Bequest to A land on
failure of prior bequest to B.
130. When second bequest not
take effect on failure of first.
131. Bequest over conditional
upon happening or not happening of specified uncertain event.
132. Condition must be strictly
fulfilled.
133. Original bequest not
affected by invalidity of second.
135. Such condition must not be
invalid under section 120.
Of bequests with directions as to
application or enjoyment
140. Bequest of fund for certain purposes, some of which cannot be
fulfilled.
Of bequests to an executor
141. Legatee named as executor
cannot take unless he shows intention to act as executor.
Of specific legacies
143. Bequest Of certain sum
where stocks etc., in which invested is described.
144. Bequest of stock where testator
had, at the date of equal or greater amount of stock of same kind.
145. Bequest of money where not payable until part of testator property
disposed of in certain way.
146. When enumerated articles
not deemed specially bequeathed to two or more persons in succession.
147. Retention, in form, of specific bequest to several persons in
succession.
148. Sale and investment of
proceeds of property bequeathed to or more persons in succession.
149. Where deficiency of assets to pay legacies, specific legacy not to
abate with general legacies.
Of demonstrative legacies
150. Demonstrative legacy
defined.
151. Order of payment when
legacy directed to be paid out of fund the subject of specific legacy.
Of ademption of legacies
152. Ademption explained.
153. Non-ademption of
demonstrative legacy.
154. Ademption of specific
bequest of right to receive something from third party
155. Ademption pro tanto by
testator’s receipt of part of entire thing specifically bequeathed.
158 Ademption where stock, specially bequeathed, does not exist at
testator’s death.
159. Ademption pro tanto where stock, specifically bequeathed exists in
part only at testator’s death.
161. When removal of thing
bequeathed does not constitute ademption.
163. Change by operation of law
of subject of specific bequest between date of will and testator’s death.
164. Change of subject without
testator’s knowledge.
165. Stock specifically
bequeathed lent to third party on condition that it be replaced.
166. Stock specifically
bequeathed sold but replaced, and belonging to testator at his death.
Of the payment of liabilities in respect
of the subject of a bequest
167. Non-liability of executor
to exonerate specific legatees.
168. Completion of testator’s
title to things bequeathed to be at cost of his estate.
169. Exoneration of legatee’s
4mnovable property for which land-revenue or rent payable periodically.
170. Exoneration of specific
legatee’s stock in joint- stock company.
Of bequests of things described in general terms
171. Bequest of thing described
in general terms.
Of bequests of the interest or Produce of
a fund
172. Bequest of interest or
produce of fund.
Of bequests of annuities
173. Annuity created by will
payable for life only unless contrary intention appears by will.
176. Where gift of annuity and
residuary gift, whole annuity to be first satisfied.
Of legacies to creditors and portioners
177. Creditor prima face
entitled to legacy as was as debt.
178. Child prima facie entitled
to legacy as portion.
179. No ademption by subsequent
provision for legatee.
Of election
180. Circumstances in which
election takes place.
181. Devolution of interest
relinquished by owner.
182. Testator’s belief as to his
ownership immaterial.
183. Bequest for man’s benefit
flow regarded for purpose of election.
184. Person deriving benefit
indirectly not put to election.
185. Person taking in individual
capacity under will may in other character elect to take in opposition.
186. Exception to provisions of
last six sections.
187. When acceptance of benefit
given by will constitutes election to take under will.
188. Circumstances
in which knowledge or waiver is presumed or inferred.
189. When testator’s
representatives may call upon legatee to elect.
190. Postponed of election in
case of disability.
Of gifts in contemplation of death
191. Property transferable by
gift made in contemplation of death.
Protection of property of deceased
194. Procedure.
195. Appointment of curator
pending determination of proceeding.
196. Powers conferrable on
curator.
197. Prohibition of exercise of
certain powers by curators.
198. Curator to give security and
may receive remuneration.
199. Report from Collector where
estate includes revenue-paying land.
200. Institution and defence of
suits.
201. Allowances to apparent owners
pending custody by curator.
202. Accounts to be filled by
curator.
203. Inspection of accounts and
right of interested party to keep duplicate.
204. Bar to appointment of second
curator for same property.
205. Limitation of time
application for curator.
206. Bar to enforcement of Part
against public settlement or legal directions by deceased
207. Court of Wards to be made
curator in case of minors having property subject to its jurisdiction.
208. Saving of right to bring
suit.
209. Effect of decision of summary
proceeding.
210. Appointment of public
curators.
Representative title to property of
deceased on succession
211. Character and property of
executor or administrator as such.
212. Right to intestate’s
property.
213. Right as executor or legatee
when established.
215. Effect on certificate of
subsequent probate or letters of administration.
216. Grantee of probate or
administration alone to sue, etc., until same revoked.
Probate, letters of administration and
administration of Sets of deceased
217. Application of part,
Of grant of probate and letters of
administration
219. Where deceased is not a
Hindu, Mohammedan, Buddhist, Sikh, Jaina or exempted person.
220. Effect of letters of
administration.
221. Acts not validated by
administration.
222. Probate only to appointed
executor.
223. Persons to who probate cannot
be granted-
224. Grant of probate to several
executors simultaneously or at different times.
225. Separate probate of codicil
discovered after grant of probate.
226. Accrual of representation to
surviving executor.
227. Effect of probate.
228. Administration, with copy
annexed, of authenticated copy of will proved abroad.
229. Grant of administration where
executor has not renounced.
230. Form and effect of
renunciation of executorship.
231. Procedure where executor
renounces or fails to accept within time limited.
232. Grant of administration to
universal or residuary legatees.
233. Right to administration of
representative of deceased residuary legatee.
234. Grant of administration where
no executor, nor residuary legatee nor representative of such legatee.
235. Citation before grant of
administration to legatee other than universal or residuary.
236. To whom administration may
not be granted.
236A. Laying of rules before
State legislature.
Of limited grants
237. Probate of copy or draft of
lost will.
238. Probate of contents of lost
or destroyed will.
239. Probate of copy where
original exists.
240. Administration until will
produced.
241. Administration, with will
annexed, to attorney of absent executor.
243. Administration to attorney of
absent person entitled to administer in case of intestacy.
244. Administration during
minority of sole executor or residuary legatee.
245. Administration during
minority of several executors or residuary legatee.
246. Administration for use and
benefit of lunatic or minor.
247. Administration pendente lite.
248. Probate limited to purpose
specified in will.
249. Administration, with will
annexed, limited to particular purpose.
250. Administration limited to
property in which person has beneficial interest.
251. Administration limited to
suit.
252. Administration limited to
purpose of becoming party to suit to be brought against administrator.
253. Administration limited to
collection and preservation of deceased’s property.
255. Probate or administration,
with will annexed, subject to exception.
256. Administration with
exception.
257. Probate or administration of
rest.
258. Grant of effects
unadministered.
259. Rules as to grants of
effects unadministered.
260. Administration when limited
grant expired and still some part of estate unadministered.
Alteration and revocation of grants
261. What errors may be
rectified by Court?
262. Procedure where codicil
discovered after grant of administration with will annexed.
263. Revocation or annulment for
just cause.
Of the practice in granting and revoking
probate and letters of administration
264. Jurisdiction of District
Judge in granting and revoking probates, etc.
265. Power to appoint delegate of
District Judge to deal with non-contentious case.
266. District Judge’s powers as to
grant of probate and letters of administration.
267. District Judge may order
person to produce testamentary papers.
268. Proceedings of District
Judge’s Court in relation to probate and administration.
269. When and how District Judge
to interfere for protection of property.
270. When probate or letters of
administration may be granted by District Judge.
271. Disposal of application made
to Judge of district in which deceased had no fixed abode.
272. Probate and letters of
administration may be granted by Delegate.
273. Conclusiveness of probate or
letters of administration.
274. Transmission to High Courts
of certificate of grants under proviso to Section 273.
275. Conclusiveness of application
for probate or administration if properly made and verified.
278. Petition for letters of
administration.
279. Addition to statement in
petition, etc.. for probate or letters of administration in certain cases.
280. Petition for probate, etc.,
to be signed and verified.
281. Verification of petition for
probate, by one witness to will.
282. Punishment for false averment
in petition or declaration.
283. Powers of District Judge.
284. Caveats against grant of
probate or administration.
285. After entry of caveat, no
proceeding taken on petition until after notice to caveator.
286. District Delegate when not to
grant probate or letters of administration.
287. Power to transmit statement
to District Judge in doubtful cases where no contention.
289. Grant of probate to be under
seal of Court.
290. Grant of letters of
administration to be under seal of Court.
291. Administration-bond.
292. Assignment of administration
bond.
293. Time for grant of probate and
letters of administration.
294. Filing of original wills of
which probate or letters of administration with will annexed granted.
295. Procedure in contentious
cases.
296. Surrender of revoked probate
or letters of administration.
297. Payment to executor or
administrator before probate or letters of administration revoked.
298. Power to refuse letters of
administration.
299. Appeals from
orders of District Judge.
300. Concurrent jurisdiction of
High Court.
301. Removal of executor or
administrator and provision for successor.
302. Directions to executor or
administrator.
Of executors of their own wrong
303. Executor of his own wrong.
304. Liability of executor of his
own wrong.
Of the powers of an executor or
Administrator
305. In respect of causes of
action surviving deceased and debts due at death.
307. Power of executor or
administrator to dispose of property.
308. General powers of
administration.
309. Commission or agency charges
310. Purchase by executor or
administrator of deceased’s property.
311. Powers of several executors
or administrators exercisable by one.
312. Survival of powers on death
of one of several executors or administrators.
313. Powers of administrator of
effects unadministered.
314. Powers of administrator
during minority.
315. Powers of married executrix
or administrator.
Of the duties of an executor or
Administrator
316. As to deceased’s funeral.
318. Inventory to include property
in any part of Indian in certain cases.
319. As to property of, and debts
owing to deceased.
320. Expenses to be pain before
all debts.
321. Expenses to be paid next
after such expenses.
322. Wages for certain services to
be next paid, and then other debts.
323. Save as aforesaid, all debts
to be paid equally and rateably.
324. Application of movable
property to payment of debts where domicile not in India.
325. Debts to be paid before
legacies.
326. Executor or administrator not
bound to pay legacies without indemnity.
327. Abatement of general
legacies.
328. Non-abatement of specific
legacy when assets sufficient to pay debts.
329. Right under demonstrative
legacy when assets sufficient to pay debts and necessary expenses.
330. Reteable abatement of
specific legacies.
331. Legacies treated as general
for purpose of abatement.
Of assent to a legacy by executor or
administrator
332. Assent necessary to complete
legatee’s title.
333. Effect of executor’s assent
to specific legacy.
334. Conditional assent.
335. Assent of executor to his own
legacy.
336. Effect of executor’s assent.
337. Executor when to deliver
legacies.
Of the payment and appointment of
Annuities
338. Commencement of annuity when
no time fixed by will.
339. When annuity, to be paid
quarterly or monthly, first falls due.
Of the investment of funds to provide for
legacies
341. Investment of sum bequeathed,
where legacy, not specific, given for life.
342. Investment of general legacy,
to be paid at future time.
343. Procedure when no fund
clearage with, or appropriated to, annuity.
344. Transfer to residuary legatee
of contingent bequest.
345. Investment of residue
bequeathed for life, without direction to invest particular securities.
346. Investment of residue
bequeathed for life, without direction to invest in specified securities.
347. Time and manner of
conversion and investment.
Of the produce and interest of Legacies
349. Legatee’s title produce of
specific legacy.
350. Residuary legatee’s title to
produce of residuary fund.
351. Interest when no time fixed
for payment of general legacy.
352. Interest when time fixed.
353. Rate of interest.
354. No interest on arrears of
annuity within first year after testator’s
death.
355. Interest or sum to be
invested to produce annuity.
Of the refunding of legacies
356. Refund of legacy paid under
Court’s orders.
357. No refund if paid
voluntarily.
359. When each legatee
compellable to refund in proportion.
361. Creditor may call upon
legatee to refund.
363. When unsatisfied legatee
must first proceed against executor, if solvent.
364. Limit to refunding of one
legatee to another.
365. Refunding to be without
interest.
366. Residue after usual payments
to be paid to residuary legatee.
367. Transfer of assets from India
to executor or administrator in country of domicile for distribution.
Of the liability of an executor or
administrator for devastation
368. Liability of executor or
administrator for devastation.
369. Liability of executor or
administrator for neglect to get any of property
Succession certificates
370. Restriction on grant of certificates under this part.
371. Court having jurisdiction
to grant certificate.
372. Application for certificate.
373. Procedure on application.
375. Requisition of security from grantee of certificate.
376. Extension of certificate.
377. Forms of certificate and
extended certificate.
378. Amendment of certificate
in respect of powers as to securities.
379. Mode of collecting
Court-fees on certificates.
380. Local extent of
certificate,
383. Revolution 0f certificate.
384. Appeal.
385. Effect on certificate of previous certificate, probates or letters
of administration.
386. Validation of certain payment made in good faith to holder of
invalid certificate.
387. Effect of decisions under
this act ,and liability of holder of invalid certificate.
388. Investiture of inferior
courts with jurisdiction of district court for purpose of this act.
389. Surrender of superseded and
invalid certificate.
390. Provision with respect to certificate under Bombay Regulation VIII
of 1827.
Miscellaneous
391. Saving.
392. [Repeals.]
THE INDIAN SUCCESSION ACT, 1925
[39 OF 1925]1
[30th September, 1925]
An act to consolidate the
law applicable to intestate and testamentary succession 2***
Whereas it is expedient to
consolidate the law applicable to intestate and testamentary succession 2[* * *]; it is
hereby enacted as follows :-
1. For the Statement of
Objects and Reasons, see Gazette of India, 1923 Pt. V, p. 401 and for the
report of joint Committees see Gazette of India, 1925, Pt. V, p. 103. The Act
has been extended to Berar by the Berar Laws Act, 1941 (4 of 1941); to Manipur
by the Union Territories (Laws) Amendment Act, 1956 (68 of 1956), to Dadra and
Nagar Haveli by the Reg. 6 of 1963, Sec. 2 and Sch. I (w.e.f. 1st
July, 1965) and to Pondicherry by Pondicherry Act 10 of 1980.
2. The words “in the provinces of India” omitted by the A.L.O., 1950 (w.e.f. 26th
January, 1950).
PART I
PRELIMINARY
1. Short title. - This
Act may be called the Indian Succession Act, 1925.
2. Definitions. - In
this Act, unless there is anything repugnant in the subject or context-
(a) “Administrator” means a person appointed
by competent authority to administer the estate of a deceased person when there
is no executor;
(b) “Codicil” means an instrument made in
relation to a will, and explaining, altering or adding to its dispositions, and
shall be deemed to form part of the will;
1(bb) “District Judge” means the Judge of a principal Civil Court of
original jurisdictions.
(c) “Executor” means a person to whom the
execution of the last will of a deceased person is, by the testator’s
appointment, confided;
2[(cc) “India” means the
territory of India excluding the State of Jammu and Kashmir;]
(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;
(e) “Minor”
means any person subject to the India,, Majority Act, 1875, who has not
attained his majority within the meaning of the Act, who has not completed the
age of eighteen years ; and “minority” means status of’ any such person;
(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 ;
3[(g) “State” includes any
division of India having a Court of the last resort;] and
(h) “Will” means the legal declaration of
the intention of the testator with respect to his property which he desires to
be carried into effect after his death.
1. Ins. by Act 18 of
1929, Sec. 2.
2. Ins. by Act 3 of
1951, Sec. 3.
3. Subs. by Act 3 of
1951, Sec. 3 and Schedule, for the former clause (w.e.f. 1st April,
1951).
3. Powers of
State Government to exempt any race, sect or tribe in the State from operation
of Act. –
(1) The State Government may, by notification
in the Official Gazette, either retrospectively from the sixteenth day of
March, 1865, or prospectively, exempt from the operation of any of the
following provisions of this Act, namely, Sections 5 to 49, 58 to 191, 212, 213
and 215 to 369, the members of any race, sect or tribe, in the State, or of any
part of such race, sect or tribe, to who], the State Government considers it
impossible or inexpedient to apply such provisions or any of them mentioned in
the order.
(2) The
State Government may, by a like notification, revoke any such order, but that
the revocation shall have retrospective effect.
(3) Persons exempted under this section or
exempted under the operation of any of the provisions of the 1Indian Succession Act, 1865 under Section 232 of
that Act are in this Act referred to as “exempted person”.
1. Rep. By this Act.
PART II
OF DOMICILE
4. Application of Part. -This
Part
shall not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or
Jaina.
5. Law regulating succession to deceased person’s
immovable’ and movable property, respectively. -
(1) Succession to the immovable property in
1[India] of a person deceased shall be
regulated by the law of India, wherever such person may have had his domicile
at the time of his death..
(2) Succession to the Movable property of a
person deceased is regulated by the law of the country in which such person had
his domicile at the time of his death.
Illustrations
(i) A, having his domicile in 1[India], dies in France, leaving movable property
in France, movable property in England, and property, both movable and
unmovable in 1[India]. The succession to whole is regulated by the
law of India.
(ii) A, an Englishman, having his domicile
in France, dies in 1[India], and leaves
property both movable and movable, in 1[India]. The succession to the movable property is
regulated by the rules which govern, in France the succession to the movable
property of an Englishman dying domiciled in France, and the succession to the
immovable property is regulated by the law of’ 1[India].
1. Subs. by Act 3 of
1951, Sec. 3 and Schedule for “the State” (w.e.f.1st April 1951).
6. One domicile only affects succession to movables
- A person call have only one domicile for the purpose
of the
succession to his movable property.
7. Domicile of origin of person of legitimate birth.
-The
domicile of origin of every person of legitimate birth is ill the country in
which at the time of’ his birth his father was domiciled, or, if he is a
posthumous child, in the country in which his father was domicile at the time
of the father’s death.
Illustrations
At the time of the birth of
A, his father was domiciled in England’s A’s domicile of origin is in England;
whatever may be the country in which he was born.
8. Domicile of origin of illegitimate child.
- The domicile of origin of’ all illegitimate child is in the country in which,
at the time of his birth, his mother was domiciled.
9. Continuance of domicile of origin. - The
domicile of origin prevails until a new domicile has been acquired.
10. Acquisition of new domicile.
– A man acquires a new domicile by taking up his fixed habitation in a
country which is not that of his
domicile of origin.
Explanation. - A man is not to be deemed
to have taken up his fixed habitation in 1[India]
merely by reason of his residing there in the 2[civil,
military, naval or air force service of the Government], or in the exercise of
any profession or calling.
Illustration
(i) A, whose domicile of origin is in
England, Proceed to 1[India], where It,-
settles as a barristers or a merchant, intending to reside there during the
remainder of his life. His domicile is now in 1[India].
(ii) A, whose domicile is in England, goes
to Austria, and enters the Austrian service, intending to remain ill that
service. A has acquired a domicile in
Austria.
(iii) A, whose domicile of origin is in France,
comes to reside in 1[India] under all
engagement with the Central C, 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 1[India].
(iv) A, whose domicile is in England, goes to
reside in 1[India] for the purpose of
winding up the affairs of a partnership which has been dissolved, and with the
rule of returning to England as soon as that purpose is accomplished. He does not by such residence acquire a
domicile in 1[India], however long the
residence may last.
(v) A, having gone to reside in 1[India] in the circumstances mentioned in the
last preceding illustration, afterwards alters his intention, and takes up his
fixed habitation in 1[India]. A has
acquired a domicile in 1[India].
(vi) A, whose domicile is in the French
Settlement of Chandernagore, 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 Chandernagore. He does not
by ‘4ucli residence acquire a domicile in 1[India].
(vii) A, having come to Calcutta ill
circumstances stated in the last preceding illustration, continues to reside
there after such political changes have Occurred as would enable him to return
with safety to Chandernagore, and fie intends that his residence in Calcutta
shall be permanent. A has acquired
domicile in 1[India].
1.
Subs. by Act 3of 1951, Sec. 3 and
Schedule, for “ the State” (w.e.f. 1st April, 1951).
2.
Subs. by the A.L.O. 1950, “His
Majesty’s civil, military, naval or air-force service” (w.e.f. 26th January,
1950).
11. Special mode of acquiring domicile in India.- Any person may acquire a domicile in 1[India] by making and depositing in some office
in 1[India], appointed ill this behalf by
the State Government a declaration in writing under his hand of his desire to
acquire such domicile; provided that he has been resident in 1[India] for one year immediately preceding the
time of his making Such declaration.
1.
Subs. by Act 3 of 1951, Sec. 3 and
Schedule, for “ the State” (w.e.f. 1st April, 1951).
12. Domicile not acquired by residence as
representative of foreign Government, or as part of
his family. - A
person who is appointed by the Government of one Country to be its ambassador,
counsel or other representative in another country does not acquire a domicile
in the latter Country by reason only of residing there ill pursuance of his
appointment; nor does any other person acquire Such domicile by reason only of
residing with such first-mentioned person as part of his family, or as a
servant.
13. Continuance of new domicile.
-A new domicile continues until the former domicile has been resumed or another
as been
acquired;
14. Minor’s domicile.
-The domicile of a minor follows the domicile of the e parent from Whom he
derived his domicile of origin..
Exception. - The domicile of a minor does
not change with that of his parent, if the minor is married or holds any office
or employment in the service of the Government, or has set up, with the consent
of the parent, in any distinct business.
15. Domicile acquired by woman on marriage.
- `By
marriage a woman acquires the domicile of her husband, if she had not the same
domicile before.
16. Wife’s domicile during
marriage. - A wife’s domicile during her marriage
follows the domicile of her husband.
Exception -The
wife’s domicile no longer follows that of her husband if they ire separated by
the sentance of a competent Court, or if the husband is undergoing a sentance
of transportation.
17. Minor’s acquisition of new domicile.
- Save as hereinbefore otherwise provided in this Part, a person cannot, during
minority,
acquire a new domicile.
18. Lunatic’s acquisition of new domicile.
–An insane person cannot acquire a new domicile in any other way than by his domicile
following the domicile of another person.
19. Succession to movable property in India in the absence
of proof of domicile elsewhere. - If a
person dies leaving movable property in 1[India],
in the absence of proof of any domicile elsewhere, the law of India regulates
Succession to the property is regulated by the law of 1[ India].
1. Sub. By Act 3 of
1951, Sec. 3 and Schedule, for “the State” (w.e.f. 1st April, 1951).
PART III
MARRIAGE
20. Interests and powers not acquired nor lost by marriage-
(1) No person shall, by marriage, acquire
any interest in the property of the person whom he or she marries or become
incapable of doing any act in respect of his or her own property which he or
she could have done if unmarried.
(2) This section-
(a) Shall not apply to any marriage
contracted before the first day of January 1866;
(b) Shall not apply and shall be deemed
never to have a plied, to any marriage, one or both of the parties to which
professed at the time of the marriage the Hindu, Muhammadan, Buddhist, Sikh or
Jaina religion.
21. Effect of marriage between person domiciled and one
not domiciled in India. - If a person whose domicile
is not ill 1[India] marries in 1[India] a person whose domicile is in 1[India], neither party acquires by the marriage any rights
in respect of any property of the other party not comprised in a settlement made
previous to the marriage, which he or she would not a acquire thereby if both
were domiciled in 1{India] at the time of
the marriage.
1. Sub. By Act 3 of 1951, Sec. 3 and
Schedule, for “the State” (w.e.f. 1st April, 1951).
22. Settlement of minor’s property in contemplation of
marriage. –
(1) The property of a minor may be
settled in contemplation of marriage, provided the settlement is made by the
minor with the approbation of the minor’s father, if the father is dead or
absent from India, with the approbation of the High Court.
(2) Nothing in this section or in
Section 21 shall apply to any will made or intestacy occurring before the first
day of January, 1866, or to intestate or testamentary Succession to the
property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina.
PART IV
OF CONSANGUINITY
23. Application of Part.
- Nothing in this Part apply to any will made or intestacy occurring before the
first day of
January, 1866, or to intestate or testamentary succession to the property of
any Hindu, Mohammedan, Buddhist, Sikh or Jaina or Parsi.
24. Kindred or consanguinity.
- Kindred or consanguinity is the connection or relation of persons descended
from the
same stock or common ancestor.
25. Lineal consanguinity.
- 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 and
great-grand father, and so upwards in the direct ascending line; or between a
man and his son, grandson, great-grandson, and so downwards in the direct
descending line.
(2) Every generation constitutes a degree,
either ascending or descending.
(3) A person’s father is related to him in
the first degree, and so likewise in his son; his grandfather and grandson in
the second degree his great-grandfather and great-grandson in the third degree,
and so on.
26. Collateral consanguinity. –
(1) Collateral consanguinity is that which
subsists between two persons, who are descended from the same stock or
ancestor, but neither of who is descended in a direct line from the other.
(2) For the purpose of ascertaining in what
degree of kindred any collateral relative stands to a person deceased, it is
necessary to reckon upwards from the person deceased to the common stock and then
downwards to the collateral relative, a degree being allowed for each person,
both ascending and descending.
27. Persons held for purpose of succession to be
similarly related to deceased. - For the purpose of
succession, there is no distinction-
(a) Between those who are related to a
person deceased through his father, and those who are related to him through
his mother; or
(b) Between those who are related to a
person deceased by the full blood, and those who are related to him by the half
blood; or
(c) Between those who were actually born in
the lifetime of a person deceased and those who at the date of his death were
only conceived in, the womb, but who have been subsequently born alive.
28. Mode of computing of degrees of kindred.
- Degrees of kindred are computed in the manner set forth in the table of
kindred set out in Schedule I.
Illustrations
(i) The person whose relatives are to be
reckoned, and his cousin-german, or first cousin, are, as shown in the table,
related in the fourth degree; there being one degree of ascent to the father
and another to the common ancestor, the grandfather and from him one of descent
to the Uncle, and another to the cousin-german, making in all four degrees,
(ii) A grandson of the brother and a son of
the uncle i.e., a great-nephew and a cousin-german, are equal in degree being
each four degrees removed.
(iii) A grandson of a cousin-german is in
the same degree as the grandson of a great-uncle, for they are both in the
sixth degree of kindred.
PART V
INTESTATE
SUCCESSION
CHAPTER I
PRELIMINARY
29. Application of Part.
–
(1) This Part shall not apply to any
intestacy occurring before the first day of
January 1866, or to the property of any Hindu, Muhammad, Buddhist, Sikh
or Jaina.
(2) Save as provided in sub-section (1) or by
any other law for the time being in force, the provisions of this Part shall
constitute the law of 1[India] in all
cases of intestacy.
1.
Subs. by Act 3 of 1951, Sec. And
Schedule, for “the State” (w.e.f. 1st April, 1951).
30. As to what property deceased considered to have
died intestate. -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.
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 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 1,000 rupees to B and
1,000 rupees to the eldest son of C and has made no other bequest; and has died
leaving the sum of 2,000 rupees and no other property. C die before A without having ever had a
son. A has died intestate in respect of
the distribution of 1,000 rupees.
CHAPTER II
RULES IN CASES
OF INTESTATES OTHER THAN PARSIS
31. Chapter not to apply to Paris.
- Nothing in
this Chapter shall apply to Paris
32. Devolution of such property.
- The property
of an intestate devolves upon the
Wife or husband, or upon those who are of the kindred of
the deceased, in the order and according to the rules hereinafter contained in
the Chapter.
Explanation.-
A widow is
not entitled to the provision hereby made for her if, by a Valid contract made
before her marriage, she has been excluded from her Distributive share of her
husband’s estate.
33. Where intestate has left widow and lineal
descendants, or widow and kindred only, or widow and
no kindred. - Where the intestate has left a widow-
(a) If he has also left any lineal
descendants, one-third of his property shall belong to his widow, and the
remaining two-thirds shall go to his lineal descendants, according to the rules
hereinafter contained;
(b) 1[Save
as provided by Section 33-A], if he has left no lineal descendant, but has left
persons who are of kindred to him, one-half of his property shall belong to his
widow, and the other half shall go to those who are of kindred to him, in the
order and according to the rules hereinafter contained;
(c) If he has left none who are of kindred
to him, the whole of his property shall belong to his widow.
1.
Ins. by Act 40 of 1926, Sec. 2
1[33A. Special provision where
intestate has left widow and no lineal descendants-
(1) Where the intestate has left a widow but
no lineal descendants and the net value his Property does not exceed five
thousand rupees, the whole of his property shall belong to the widow.
(2) Where the net value of the property
exceeds the sum of five thousand rupees, the widow shall be entitled to five
thousand rupees thereof and shall have a charge upon the whole of such property
for such sum of five thousand rupees, with interest thereon from the date of
the death of the intestate at 4 per cent per annum until payment.
(3) The provision for the widow made by
this section shall be in addition and without prejudice to her interest and share
in the residue of the estate of such intestate remaining after payment of the
said sum of five thousand rupees, with interest as aforesaid, and such residue
shall be distributed in accordance with the provisions of Section 33 as if it
were the whole of such intestate’s property.
(4) The net value of the property shall be
ascertained by deducting from the gross value thereof all debt’s, and all
funeral and administration expenses of the intestate, and all other lawful
liabilities and charges to which the property shall be subject.
(5) This section shall not apply-
(a) To the property of-
(i) Any Indian Christian,
(ii) Any child or grandchild of any male
person who is or was at the time of his death an Indian Christian, or
(iii) Any person professing the Hindu,
Buddhist, Sikh or Jaina religion the succession to whose property is, under
Section 24 of the Special Marriage Act, 1872, regulated by the provisions of
this Act
(b) Unless the deceased dies intestate in
respect of’ all his property.
1.
Ins. by ibid., Sec. 3.
34. Where intestate has left no widow, and where lie
has left no kindred. - Where the intestate has
left no widow, his property shall go to his lineal descendants or to those who
are of kindred to him, not being lineal descendants, according to the rules
hereinafter contained; and, if he has left none who are of kindred to him, it
shall go the Government.
35. Rights of widower.
- A husband surviving his wife has the same rights in respect of her property,
if she dies intestate, as a widow has in respect of her husband’s property if
he dies intestate.
Distribution
where there are Lineal Descendants
36. Rules of distribution.
-The rules for the distribution of’ the intestate’s property (after deducting
the widow’s share, if he has left a widow) amongst his lineal descendants shall
be those contained in Sections 37 to 40.
37. Where intestate has left child or children only.
- Where the intestate has left surviving him a child or children, but no more
remote lineal
descendant through a deceased child, the property shall belong to his surviving
child, if there is only one, or shall be equally divided among all his
surviving children.
38. Where intestate has left no child, but grandchild
or grand children. -Where the intestate has
not left surviving him any child, but has left a grandchild or grand-children
and no more remote descendant through a deceased grand-child, the property
shall belong to his surviving grand-child if there is only one, or shall be
equally divided among all his surviving grand-children.
Illustrations
(i) A has three-children and no more, John,
Mary and Henry. They all die before the
father, John leaving two children, Mary three, and Henry four. Afterwards A dies intestate, leaving those
none grandchildren and no descendant of any deceased grandchild. Each of his grandchildren will have
one-ninth.
(ii) But if Henry has died, leaving no
child, then the whole is equally divided between the intestate’s five
grandchildren, the children of John and Mary.
39. Where intestate has left only great grand children
or remoter lineal descendants. - In like manner the property shall 90 to the
surviving lineal descendants who are nearest in degree to the intestate, where
they are all in the degree of great-grandchildren to him, or are all in a more
remote degree,
40. Where intestate leaves lineal descendants not all
in same degree of kindred to him and those through whom the more remote are
descended are dead. –
(1) If the intestate has left lineal descendants
who do not all stand in the same degree of kindred to him, and the persons
through whom the more remote are descended from him are dead, the property
shall be divided into Such a number of equal shares as may correspond with the
number of the lineal descendants of the intestate who either stood in the
nearest degree of kindred to him at his decease, or having been of the like
degree of kindred to him, died, before him, leaving lineal descendants who
survived him.
(2) One of such shares shall be allotted to
each of’ the lineal descendants who stood in the nearest degree of kindred to
the intestate at his decease; and one of such shares shall be allotted in
respect of each of such deceased lineal descendants; and the share allotted in
respect of each of such deceased lineal descendants shall belong to his
surviving child or children or more remote lineal descendants, as the case may
be; such surviving fig child or children or more remote lineal descendants
always taking the share which his or their parent or parents would have been
entitled to respectively if such parent or parents had survived the intestate.
Illustration
(i) A had three children, Joint, Marry 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 four children, and the remaining third to Mary’s
one child.
(ii) 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-fifth is equally
divided between the two great-grand children.
(iii) A has three children, John, Mary and
Henry; Joint die% leaving four children; and one of Johan’s children dies
leaving two children. Mary dies leaving
one child. A afterwards (lies
intestate. One-third of his property is
allotted to Henry, one-third to Mary’s child and one-fifth 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. Joint dies before his father,
leaving his wife pregnant. Then A dies
leaving Mary surviving him, and in clue title a child of John is born. A’s property is to be equally divided
between Mary and the posthumous child.
Distribution
where there are no lineal descendants
41. Rules
of distribution where intestate has left no lineal descendants.- Where an intestate has
left no lineal descendants, the rules for the distribution of his property
(after deducting the widow’s share, if he has left a widow) shall be those
contained in Sections 42 to 48.
42. Where intestate’s father living.
-If the intestate’s father is living, fie shall succeed to the property.
43. Where intestate’s father dead, but his mother,
brothers and sisters living. - If the intestate’s father
is dead, but the intestate’s mother is living and there are also brothers or sisters of
the intestate living, and there is no child living of any deceased brother or
sister, the mother and each living brother or sister shall succeed to the
property in equal shares.
Illustration
A dies intestate, survived
by his mother and two brothers of the 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.
44. Where intestate’s father dead and his mother,
brother or sister, and children of any deceased brother or sister living. - If the intestate father
is dead but the intestate’s mother is living, and if any brother or sister and
the child or children of any brother or sister who may have died in the
intestate’s lifetime are also living, then the mother and each living brother
or sister, and the living child or children of each deceased brother or sister,
shall be entitled to the property in equal shares, such children (if more than
one) taking in equal shares only the shares which their respective parents
would have taken if living at the intestate’s’ death.
Illustration
A, the intestate, leave his
mother, his brothers John and Henry, and also one child of a deceased sister,
Marry, and two children of George, a deceased brother of the 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 two children of George divide the remaining
one-fifth equally between them.
45. Where intestate’s father dead and his mother and
children of any deceased brother sister living. - If
the intestate’s father is dead, but the intestate’s mother is living, and the
brothers and sisters are all died, but all or any of them have left children
who survived the intestate, the mother and the child or children of each deceased
brother or sister shall be entitled to the property in equal shares, such
children (if more than one) taking in equal shares, only the shares which their
respective parents would have taken if living at the intestate’s death.
Illustration
A, the intestate, leaves no
brother or sister, but leaves his mother and one child of a deceased sister,
Mary, and two children of George, a deceased brother. The mother takes one-third, the child of Mary takes one-third,
and the children of George divide the remaining one-third equally between them.
46. Where intestate’s father dead, but his mother
living and no brother, sister, nephew or niece. - If
the intestate’s father is dead, but the intestate’s mother is living, and there
is neither’ brother, nor sister, nor child of any brother or sister of the
intestate, the property shall belong to the mother.
47. Where intestate has left neither lineal descendant,
nor father nor mother-. Where the intestate has left neither lineal
descendant, nor father nor mother, the property shall be divided equally
between his brothers and sisters and the child or children of such of them as
may have died before him, such children (if more than one) taking in equal
shares only the shares which their respective parents would have taken if
living at the intestate’s death.
48. Where intestate has left neither lineal descendant,
nor parent, nor brother, nor sister. - Where the intestate has left
neither lineal descendants, nor parent nor brother, nor sister, his property
shall be divided equally among those of his relatives who are in the nearest
degree of kindred to him.
Illustrations
(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
third degree
(ii) A, the intestate, has left a
great-grand father, or a great grandmother and uncle s 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 degrees will take equal shares.
(iii) A, the intestate, has left a great-grand
father, 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.
49. Children’s advancements not brought into
hotchpots. – Where a distributive share
in the property
of a person who has died intestate is claimed by a child, or any descendants of
a child of such person, no money or other property which the intestate may,
during his life, have paid , given or settled to, or for the advancement of,
the child by whose descendant the claim
is made shall be taken into account in estimating such distributive share.
CHAPTER III
SPECIAL RULES
FOR PARSI INTESTATES
1[50. General principles relating to
intestate succession. —For the
purpose of intestate succession among Paris--
(a)
There is no distinction between
those who were actually born in the lifetime of a person deceased and those who
at the date of his death were only conceived in the womb, but who have been
subsequently non-alive;
(b) A
lineal descendant of an intestate who has died in the lifetime of the intestate
without leaving a widow or widower or any lineal descendant or 2[a widow or
widower of any lineal descendant] shall not be taken into account in
determining the manner in which the property of which the intestate has died
intestate shall be divided; and
(c) Where a widow 3[widow or
widower of any relative] of an intestate has married again in the lifetime of
the intestate, 4[such widow or widower ] shall not be entitled to receive any share of the property of
which the intestate has died intestate,
and 4[ such widow or
widower] shall be deemed not to be existing at the intestate’s death.
1.
Subs. by Act 17 of 1939, Sec. 2,
for the original Secs. 50 to 56 (w.e.f. 12th June, 1939).
2.
Subs. by Act 51 of 1991, Sec. 2
for the words “a widow of any lineal descendant”.
3. Subs. by ibid for the words “widow of
any relative”
4.
Subs. by ibid for the word “She”.
1[51. Division of intestate’s property among widow, widower, children and
parents. -
(1)
Subject to the provisions of sub-
section.
(2)
The property of which a Parsi dies
intestate shall be divided—
(a)
Where such Parsi dies leaving a
widow or widower and children among the widow or widower and each child receive
equal shares;
(b)
Where a Parsi dies leaving
children, but no widow or widower, among the children in equal shares;
(2)
Where a Parsi dies leaving one or
both parents in addition to children or widow or widower and such and children,
the property of which such Parsi dies intestate shall be so divided that the
parent or each of the parents shall receive a share equal to half the share of
each child,]
1. Subs. by ibid, Sec. 3 for Secs. 51 and
52.
53. Division of share of predeceased child of intestate
leaving lineal descendants. –In all cases where a Parsi
dies leaving any lineal descendants, if any child of such intestate has died in
the lifetime
of the intestate, the division of the share of the property of which the
intestate has died intestate which such child would have taken if living at the
intestate’s death shall be in accordance with the following rules, namely: -
(a) If such deceased child was a son, his
widow and children shall take shares in accordance with the provisions of this
Chapter as if he had died immediately after the intestate’s death.
Provided that where such
deceased son has left a widow or a widow of a Lineal descendant but no lineal
descendant, the residue of his share after Such distribution has been made
shall be divided in accordance with the Provisions of this Chapter as property
of which the intestate has died intestate, and in making the division of such
residue the said deceased son of the intestate Shall not be taken into account.
(b) If such deceased child was a daughter,
her share shall be divided equally among her children.
(c) If any child of such deceased child has
also died during the lifetime of the intestate, the share which he or she would
have taken if’ living at the intestate’s death, shall be divided in like manner
in accordance with clause (a) clause (b) as the case may be.
(d) Where a remoter lineal descendant of the
intestate has died during the lifetime of the intestate, the provisions of
clause (c) shall apply mutates mutandis to the division of any share to which
he or she would have been entitled if living at the intestate’s death by reason
of the predeceased of all the intestate’s lineal descendants directly between
him or her and the intestate.
154. Division of property where intestate leaves no
lineal descendant but leaves a widow or widower or a widow or widower of any
lineal descendant. -Where a Parsi dies
without leaving any lineal descendant but leaving a widow or widower or widow or widower of a lineal descendant, the property of which
the intestate dies intestate shall be divided in accordance with the following
rules, namely: -
(a) If the intestate leaves a widow or
widower but no widow or widower of’ a lineal descendant, the widow or widower
shall take half the said property;
(b) If
the intestate leaves a widow or widower and also a widow or widower of any
lineal descendant, his widow or her widower shall receive another one third or
if there is more than one such widow or widower of lineal descendants, the last
mentioned one-third shall he divided equally among them;
(c) If
the intestate leaves no widow or widower, but one widow or widower of a lineal
descendant, such widow or widower of the lineal descendant shall receive
one-third of the said property or, if the intestate leaves no widow or widower
but more than one widow or widower of lineal descendants, two-thirds of the
said property shall be divided among such widows or widowers of the men descendants
in equal shares;
(d)
The residue after the division specified in clause (a) or clause. (b) or clause
(c) has been made shall be distributed among the relatives of the intestate in
the order specified in Part I of Schedule II; and the next-of-kin standing
first ill Part I of that Schedule shall be preferred to those, standing second,
the second to the third and so on in succession, provided that the property
shall be so distributed that each male and female standing in the same degree
of propinquity shall receive shares ;
(d) The whole of the residue shall be
distributed in proportion to the shares specified among the persons entitled to
receive shares under this section.]
(e) If there are do relatives entitled to
the residue under clause.
1. Subs. by Act 51 of
1991, Sec.4.
55. Division of property where intestate leaves neither
lineal descendants nor a widow or widower nor a widow of any lineal
descendant.
- When a Parsi dies leaving neither lineal descendants nor a widow or widower
nor a widow 1[for widower] of
any lineal descendants, his or her next-of-kin, in the order set forth in Part
11 of Schedule 11, shall be entitled to succeed to the whole of the property of
which he or she dies intestate. The next-of-kin
standing first in Part II of that Schedule shall be preferred to those standing
second, the second to the third, and so on in succession, provided that the
property shall be so distributed that 2[each
male and female standing in the same degree of propinquity shall receive equal
shares.]
1.
Subs. by Act 51 of 1991, Sec. 5
for the words “a widow of any lineal decendant”.
2.
Subs. by ibid. For the words
“each male shall take double the share of each female standing in same degree
of propinquity”.
56. Division of property where there is no relative
entitled to succeed under the provisions of this Chapter.
- When
there is no relative entitled to succeed under the other provisions of this
Chapter to the property of which a Parsi has died intestate, the said property
shall be divided equally among those of the intestate’s relatives who are in
the nearest degree of kindred to him.
PART VI
TESTAMENTARY
SUCCESSION
CHAPTER I
INTRODUCTORY
1[57]. Application of certain provisions
of Part to a class of wills made by Hindus, etc. -The
provisions of this Part which are set out in Schedule III shall, subject to the
restrictions and modifications specified therein, apply-
(a) To all wills codicils made by any Hindu,
Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within
the territories which at the said date were subject to the Lieutenant-Governor
of Bengal or within the local limits of the ordinary original civil
jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b) To all such wills and codicils made
outside those territories and limits so far as relates to immovable property
situate within those territories or limits; 2[and
(c) To all wills and codicils made by any
Hindu, Buddhist, Sikh or Jaina on or
after the first day of January, 1927, to which those provisions are not
applied by clauses (a) and (b):
Provided that
marriage shall not revokes any such will or codicil. 3[*
* * * * *]
1. The Original Sec. 57
re-numbered as sub-section (1) of that section by Act 37 of 1926, Sec. 2 and
subsequently sub-section (1) re-numbered as Sec. 57 by Act 18 of 1929, Sec. 3.
2. Ins. by Act 18 of
1929, Sec.3.
3. Sub-section (2) added
by Act 37 of 1926, Sec. 2, omitted by Act 18 of 1929, sec. 3.
58. General application of Part---
(1) The provisions of this Part shall not
apply to testamentary succession to the property of any Mohammedan nor, save as
provided by Section 57, to testamentary succession to the property of any
Hindu, Buddhist, Sikh or Jaina; nor shall they apply to any will made before
the first day of January 1866.
(2) Save as provided in sub-section (1) or by any other law for the time being in
force, the provisions of this Part shall constitute the law of 1[India] applicable to all cases of testamentary
succession.
1.
Subs. by Act 3 of 1951,Sec. 3 and
Schedule, for “the State” (w.e.f. 1st April, 1951).
CHAPTER II
OF WILLS AND
CODICILS
59 Person capable of making wills.
- Every person
Of Sound mind not being a minor may dispose of his property by will.
Explanation:-
(1) A married woman may dispose by will of’ any
property which she could alienate by her own act during her life.
Explanation.
-(2) Persons who are deaf or dumb or blind are not
thereby incapacitated for making a will if they are able to know what they do
by it.
Explanation.
-(3) A person who is ordinarily insane may make a
will during all interval in which he is of sound mind.
Explanation.
-(4) No person call make a will while he is ill
cub a state of whether arising from illness or from any other cause, that he
does not know what he is intoxication or front doing.
Illustration
(i) A can perceive what is going on in his
immediate neighborhood 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.
(ii) A executes an instrument purporting to be
his will, but fie does not understand the nature of the instrument, nor the
effect of its provisions. This instrument is not a valid will.
(iii) A being very feeble and debilitated, but
capable of exercising a judgement as to the proper mode of disposing of
disposing his property, makes a will. This is a valid will.
60. Testamentary guardian: -A
father,
whatever his age may be, may by will appoint a guardian or guardians for his
child during minority.
61. Will obtained by fraud, coercion or importunity:
- A will or
any Part of a will, the making of which has been caused by fraud or coercion,
or by such importunity as takes away the free agency of the testator, is void.
Illustration
(i) A, falsely and knowingly represents to
the testator that the testator’s only child is (lead, or that he has done some
undutiful act and hereby induce, the testator to make a will in A’s favour;
such will has obtained by fraud, and is invalid.
(ii) A, by fraud ad 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 it, favour of c. The
bequest is void, the making of it having been caused by correction.
(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.
(vi) A, being in so feeble a state of health
as to unable to resist importunity, is pressed by B to make- a will of an
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 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, of B.
(viii) A, with a view to obtaining a legacy from
B, pays him attention and flatters him and thereby products in him a capricious
partiality to A. B, in consequence of such attention and flattery, makes his
will, by which be leaves a legacy to A. ‘The bequest is not rendered invalid by
the attention and flattery of A.
62. Will may be revoked or altered.
- A will
is liable to be revoked or altered by the maker of it at any time when he is
competent to dispose of his property by will.
CHAPTER III
OF THE EXECUTION
OF UNPRIVILEGED WILLS
63. Execution of unprivileged wills.
- Every testator,
not being a soldier employed in an expedition nor engaged in actual warfare, 1[or an airman so employed or engaged,] or a
mariner at sea, shall execute his will according to the following rules: -
(a) The testator shall sign or shall affix
his marks to the will, or some other person shall sign it in his presence and
by his direction.
(b) The signature or mark of the testator,
or the signature of the person signed for him, shall be so placed that it shall
appear that it was intended thereby to give effect to she writing as a will.
(c) The will shall be attested by two or
more witnesses, each of whom has seen the testator sign or affix his mark to
the will or has seen some other person sign the will, in the presence and by
the direction of the testator, or has received from the testator a personal
acknowledgment of his signature or mark, or of’ the signature of such other
person; and each of the witnesses shall sign the will in the presence of the
testator, but it shall not be necessary that more than one witness be present
at the same time, and no particular form of attestation shall be necessary.
1. Ins. by Act 10 of
1927, Sec. 2 and Schedule. I
64. Incorporation of papers by reference.
- If a testator, in a will or codicil duly attested, refers to any other
document then actually written as expressing any part of his intentions, such
document shall be deemed to form a part of the will or codicil in which it is
referred to.
CHAPTER IV
OF PRIVILEGED
WILLS
65. Privileged wills.
- Any soldier being employed in an expedition or engaged in actual warfare, or
an airman
so employed or engaged, or any mariner being at sea, may, if he has completed
the age of eighteen years, dispose of his property by a will made in the manner
provided in Section 66. Such wills are
called privileged wills.
Illustrations
(i) A, a medical officer attached to a
regiment, is actually employed in an expedition. He is a soldier actually
employed in an expedition, and can make a privileged will.
(ii) A is at sea in a merchant-ship; of which
lie 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 harbour. He is, for the
purposes of this section, a mariner at sea, and car make a privileged will.
(v) A, an admiral who commands a naval
force, but who lives on shore, and only occasionally goes on borad his ship, is
not considered as at sea, and cannot make a privileged will.
(vi) A, mariner serving on a military expedition,
but not being at sea, is considered as a soldier, and can make a privileged
will.
66. Mode of making, and rules for executing, privileged
wills.-
(1) Privileged wills may be in writing, or
may be made by word of mouth.
(2) The execution of privileged wills shall
be governed by the following rules: -
(a) The will may be written wholly by the
testator, with his own hand. In such
case it need not be signed or attested.
(b) It may be written wholly or in part by
another person, and signed by the testator.
In such case it need not be attested.
(c) If the instrument purporting to be a
will is written wholly or in part by another person and is not signed by the
testator, it shall be deemed to be his will, if it is shown that it was written
by the testator’s directions or that he recognized it as his will.
(d) If it appears on the face of the
instrument that the execution of it in the manner intended by the testator was
not completed, the instrument shall not, by reason of that circumstance, be
invalid provided that his son-execution of it can be reasonably ascribed to
some cause other than the abandonment of the testamentary intentions expressed
in the instrument.
(e) If the soldier, 1[airman] or mariner has written instructions for
the preparation of his will, but has died before it could be prepared and
executed, such instructions shall be considered to constitute his will.
(f) If the soldier, 1[airman] or mariner has, in the presence of two
witnesses, given verbal instructions for the preparation of his will, and they
have been reduced into writing in his lifetime, but he has died before the
instrument could be prepared and executed, such instructions shall be
considered to constitute his will, although they may not have been reduced into
writing in his presence, nor dead over to him.
(g) The soldier, 1[airman]
or mariner may make a will by word of mouth by declaring his intentions before
two witnesses present at the same time.
(h) A will made by word of mouth shall be
null at the expiration of one month after the testator, being still alive, has
ceased to be entitled to make a privileged will.
1. Ins. by Act 10 of
1927, Sec. 2 and Schedule. I
CHAPTER V
OF THE
ATTESTATION, REVOCATION, ALTERATION AND REVIVAL OF WILLS
67. Effect of gift to attesting witness. - A
will shall not be deemed to be insufficiently attested by reason of any benefit
thereby given
either by way of bequest or by way of appointment to any person attesting it,
or to his or her wife or husband; but the bequest or appointment shall be void
so far as concerns the person so attesting, or wife or husband of such person,
or any person claiming under either of them.
Explanation.
-A legatee
under a will does not lose his legacy by attesting a codicil that confirms the
will.
68. Witness not disqualified by interest or by being
executor. - No person by reason of
interest in, or of his being an executor of, a will, shall by disqualified as a
witness to prove the execution of the will or to prove the validity or invalidity
thereof.
69. Revocation
of will by testator’s marriage- Every will shall be
revoked by the marriage of the maker, except a will made in exercise of a
power of appointment, when the property over which the power of appointment is
exercised would not, in default of such appointment, pass to his or her
executor or administrator, or to the person entitled in case of intestacy.
Explanation.
- Where a
man is invested with power to determine the disposition Property of which he is
not the owner, he is said to have power to appoint such
property.
70. Revocation of unprivileged will or codicil.
-No unprivileged will or codicil, nor any part thereof, shall be revoked
otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke
the same and executed in the manner in which an unprivileged will is herein
before required to be executed, or by the 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.
Illustrations
(i) A has made an unprivileged will. Afterwards, A makes another unprivileged
will, which purports to revoke the first.
Its is a revocation.
(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.
71. Effect of obliteration, interlineations or
alteration in unprivileged will. – No obliteration,
interlineations or other alteration made in any unprivileged will after the
execution thereof shall have any effect, except so far as the words or meaning of the
will have been thereby rendered illegible or indiscernible, unless such
alteration has been executed in like manner as hereinbefore is required for the
execution of the will Provided that the will, as so altered, shall be deemed to
be duly executed if the signature of the testator and the subscription of the
witnesses is made in the margin or on some other part of the will opposite or
near to such alteration, or at the foot or end of or opposite to a memorandum
referring to such alteration, and written at the end or some other part of the
will.
72. Revocation of privileged will or codicil. -A
privileged will or codicil may be revoked by the testator by an unprivileged will or codicil ‘ or by any
act expressing ail intention to revoke it and accompanied by such formalities
as would be sufficient to give validity to a privileged will, or by the
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.
Explanation.-In order to the revocation
of a privileged will or codicil by an act accompanied by such formalities as
would be sufficient to give validity to a privileged will, it is 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.
73. Revival of unprivileged will. –
(1) No unprivileged will or codicil, nor any
part thereof, which has been revoked in any manner, shall be revived otherwise
than by there execution thereof, or by a codicil executed in manner
hereinbefore required, and showing an intention to revive the same.
(2) When any will or codicil, which has been
partly revoked and afterwards wholly revoked, is revived, such revival shad]
not extend to so much thereof as has been revoked before the revocation of the
whole thereof, unless an intention to the country is shown by the will or
codicil.
CHAPTER VI
OF THE
CONSTRUCTION OF WILLS
74. Wording of will.
- It is
not necessary that any technical words or terms of art be used in a will, but
only that the wording be such that the intentions of the testator can be known
therefrom.
75. Inquiries to determine questions as to object or
subject of will. - For the purpose of
determining questions as to what person or what property is denoted by any words used
in a will, a Court shall inquire into every material fact relating to the
persons who claim to be interested under such will, the property which is
claimed as the Subject of disposition, 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.
Illustrations
(i) A, by his will, bequeaths 1,000 rupees
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.
(ii) A, by his will, leaves to B “my estate
called Black Acre”. It may be necessary
to take evidence in order to ascertain what is the subject matter of the
bequest; that is to say, what estate of the testator is called Black Acre.
(iii) 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.
76. Misnomer or misdiscription of object: -
(1) Where the words used in a will to
designate or describe a legatee or classes of legatees sufficiently show what
is meant, an error in the name or description shall not prevent the legacy from
taking effect.
(2) A mistake in the name of a legatee may
he corrected by a description of him, and a mistake in the description of a
legatee may be corrected by the name.
Illustrations
(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 will have the legacy.
(ii) A bequeaths 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 son is named William. Thomas will 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 emission
will not prevent the seventh child from taking a share with the others.
(v) The testator, having six grand-children,
makes a bequest to ‘my six grand-children” and, proceeding to mention them by
their Christian names ‘ mention,., one twice over omitting another
altogether. The one whose name is not
mentioned will take a share with the others.
(vi) The testator bequeaths “1,000 rupees 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 fie survives die testator, receive a
legacy of 1,000 rupees.
77. When words may be supplied. - Where
any word
material to the full expression of the meaning has been omitted, it may be
supplied by the context.
Illustration
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.
78. Rejection of erroneous particulars is description
of subject-If the thing which the testator intended to
bequeath can be sufficiently identified from the description of it given in the
will, but some parts of the description do not apply, such parts of the description
shall be rejected as erroneous, and the bequest shall take effect.
Illustrations
(i) A bequeaths to B “my marsh-lands lying
in L and in the occupation of X. The testator had marshlands lying in L but had
no marshlands in the occupation of X. The words “in the occupation of X shall
be rejected as erroneous, and the 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 Rampur but it was a taluq and not a
zamindari. The taluq passes by this
bequest.
79. When part of description may not be rejected as
erroneous. - If a will mentions several circumstances
as descriptive of the thing which the testator intends to bequeath, and there
is any property of his in respect of which all those circumstances exist, the bequest shall be
considered as limited to such property, and it shall not be 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.
Explanation. -In judging whether a case
falls within the meaning of this section, Any works, which would be liable to
rejection under Section 78, shall be deemed to have beef) struck out of the
will.
Illustrations
(i) A bequeaths to B “my marsh-lands lying
in L and in the occupation of X’. The
testator- had marshlands 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 marshland lying in L as were in the 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 marshlands 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 marshlands 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 marhs-lajids lying in L as were in the
occupation of X shall alone pass by the bequest.
80. Extrinsic evidence admissible in cases of patent
ambiguity: - Where the words of a will are
unambiguous, but it is found by extrinsic evidence that they admit of applications,
one only of which can have been intended by the testator, extrinsic evidence
may be taken to show which of these applications was intended.
Illustrations
(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, 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 Kurd”. It turns out that.’
It he had two estates called Sultanpur Kurds.
Evidence is admissible to show which estate was intended.
81. Extrinsic evidence inadmissible in case of patent
ambiguity or ambiguity or deficiency: -Where there is an ambiguity or
deficiency off the face of a will, no extrinsic evidence as to the intentions
of the testator shall be admitted.
Illustrations
(i) A man has an aunt, Caroline, and a
Cousin, Mary, and has no aunt of the name of Mary. by his will be bequeaths
1,000 rupees to “my aunt, Caroline” and 1,000 rupees to my cousin, Marry” and
afterwards bequeaths 2,000 rupees to “my before-mentioned aunt, Mary,,. There is no person to whom the description
given in the will can apply, and evidence is not ad MY cousin, show who was
meant by “my before mentioned aunt, Mary”.
The bequest is therefore void for uncertainly under section 89.
(ii) A bequeaths 1,000 rupees to leaving a
bland 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.
82. Meaning of clause to be collected from entire will.
- The meaning of any clause in a will is to be collected from the entire instrument,
and all its parts are to be construed with reference to each other.
Illustrations
(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 13; 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 our of the first as if he had said “I give Black Acre
to and all the rest of my estate to A”.
83. When words my be understood in restricted sense,
and when in sense wider than usual: - general words may
be understood in a restricted sense where it may be Collected from the will that the testator meant
to use them ill a restricted sense; and Words may be understood ill a wider
sense than that which they usually bear, where it may be Collected from the
Other words of the will that the testator meant to use them ill such wider
sense.
Illustrations
(i) A testator gives to A “my farm in the
occupation of B” and to C “all my marsh-lands in 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 I.” are restricted
by the gift to A. A takes the whole of the farm in the occupation of D,
including that portion of the farm which consists of marshlands in L.
(ii) The testator (a sailor on shipboard)
bequeathed to his mother his gold ring, buttons and chest of clothes, and to
his friend, A (a shipmate), 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.
(iii) 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 enumerated.
84. Which of two possible constructions preferred.
- Where a clause is susceptible of two meanings according to one of which it has some
effect, and according to the other of which it can have none’ the former shall
be preferred.
85. No part rejected, if it can be reasonably construed.
- No part of a will shall be rejected as destitute of meaning if it is possible to put a
reasonable construction upon it.
86. Interpretation of words
repeated in different parts of will. -If the
same words occur in different parts of the same will, they
still be taken to have been used everywhere in the same sense, unless a contrary
intention appears.
87. Testator’s intention to be
effectuated as far as possible. - The intention of the
testor shall 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.
Illustrations
The testator
by will made on his deathbed bequeathed all his property to C D for life and
after his decease to a certain hospital.
The intention of the testator cannot take effect to its full extent, because the gift to the hospital is void under
Section 1 18, but it will take effect so far as regards the gift to C D.
88. The last of two inconsistent clauses prevails:
- Where two clauses or gifts in a will are irreconcilable, so that they cannot
possibly stand together, the last shall prevail.
Illustrations
(i) The testator by the 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”. B will
have it.
(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 benefit of B, the latter disposition will
prevail.
89. Will or bequest void for uncertainty.
- A will or bequest not expressive of any definite intention is void for uncertainty.
Illustration
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 bequeath money’,
‘wheat’, ‘oil’, or the like”, without saying how much, this is Void.
90. Words describing subject refer to property
answering description at testator’s death. - The description contained in
a will of property, the subject of gift, shall, unless a contrary intention
appears by the will, be deemed to refer to and comprise the property answering
that description at the death of the testator.
91. Power of appointment executed by general bequest-
Unless a contrary intention appears by the will, a bequest of the estate of the
testator shall be construed to include any property which he may have power to
appoint by will to any object he may think proper, and shall operate as an
execution of such power; and a bequest of property described in a general
manner shall be construed to include any property to which such description may
extend which he may have power to appoint by will to any object he may think
proper, and shall operate as an execution of such power.
92. Implied gift to objects of power in default of
appointment- Where property is
bequeathed to or for the benefit of certain objects as a specified person may appoint
or for the benefit of certain objects in such proportions as a specified person
may appoint, and the will does not provide for the event of no appointment
being made; if the power given by the will is not exercised, the property
belongs to all the objects of the power in equal shares.
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 hi, children in such Proportions as; he shall
appoint. The widow dies without having
made any appointment. The fund will be divided equally among the children lies.
93. Bequest to “heirs” etc. of particular person
without qualifying terms- 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” or
particular person without ally qualifying terms and the class so,
designated forms the direct and independent object of the bequest, the property bequeathed shall be distributed
as if it had belonged to such person and he had died intestate in respect of
it, leaving assets for the payment of his debts independent of such property.
Illustrations
(i) A leaves his property “to my own
nearest relations”. The property to
those who would be entitled to it if a bad died intestate, leaving assets for
the payment of his debts independently of such property.
(ii) A bequeaths 10,000 rupees “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 if it had formed part of A’s
unbequeathed property.
(iii) A
leaves his property to B, but if B dies before him, to B’s next of-kin; B dies
before A, the property devotes 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 10,000 rupees “to B for his
life, and after his decease to the heirs of 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.
94. Bequest to “representatives”, etc., of particular
person. - 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 shall be distributed as if it had belonged to such person and fie had
died intestate in respect of’ it.
Illustrations
A bequest is
made to the “legal representatives” of A. A had 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 he 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.
95. Bequest without words of limitation. -Where
property is bequeathed to any person, he is entitled to the whole
interest of the testator therein, unless it appears front the will that only a
restricted interest was intended for him.
96. Bequest in alternative.
- Where property is bequeathed to a person with a bequest in the alternative to
another person or to a class of persons, then, if a contrary intention does not
appear by the will, the legatee first named shall be entitled to the legacy if
he is alive at the time when it takes effect; but if he is then dead, the person or
class of persons named in the second branch of the alternative shall take the
legacy.
Illustration
(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
it 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 life-time 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 As
life-time. Upon A’s death the bequest to the heirs of B takes 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 the heirs of B takes
effect.
97. Effect of words describing a class added to bequest
to person: Where
property is bequeathed to a person, and words are added which describe a class
of persons but do not denote them as direct objects of a distinct and independent
gift, such person is entitled to the whole interest of the testator therein,
unless a contrary intention appear by the will.
Illustrations
(i) A bequest
is made—
To A and his children,
To A and his children by his present wife,
To A and his 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, 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
after his death to his issue. At the death of A the property belongs in equal shares to all persons who the
answer the description of issue of A.
98. Bequest to class of persons
under general description only. -Where a bequest is made to a class of persons under a
general description only, no one to whom the words of the description are not in their ordinary
sense applicable shall take the legacy.
99. Construction of terms:
- In a will-
(a) The word “children” applies only to
lineal descendants in the first degree of the person whose “children” are
spoken of;
(b) The words “grand-children” applies only
to lineal descendants in the second degree of the person who’s “grand-children”; are spoken of;
(c) The words “nephews” and “nieces” apply
only to children of brothers or sisters,
(d) The words “cousins”, “or first cousins”,
or “cousins-German”, apply only to children of brothers or of sisters of the
father or mother of the person whose 4t cousins” or “first cousins” or
“cousins-German”, are spoken of;
(e) The words “first cousins once removed”
apply only to children of cousins-german, or to cousins-german a parent of the
person, whose “first cousins once removed” are spoken of,
(f) The
words “second cousins” apply only to grandchildren of brothers or of sisters of
the father or grandmother of the Person whose “second cousins,
(g) The words of the person whose “issue” or
“descendants’, are spoken Of,” issue” and “descendants’, apply to all lineal
descendants Whatever.
(h) Words expressive of collateral
relationship apply alike to relatives of full and of half blood; and
(i) All words expressive of relationship
apply to a child in the womb is afterwards born alive?
100. Words expressing relationship denote Only
legitimate relatives or failing such relatives reputed legitimate- In
the absence of any intimation to the contrary in a will the word “child”, the
word “son”, the word “daughter”, or any word what expresses relationship, is to
be understood as denoting Only a legitimate relative, or, where there is no
such legitimate relative, a person who has acquired, at the date of the will,
the reputation of being such relative.
Illustrations
(i) A, having three children’s B C and D, of
whom B and C are legitimate, leaves his
property to be equally divided a, of whom B and C in equal to the exclusion of
D.
(ii) A,
having a niece of illegitimate bird, who has acquired the reputation of being
his neice, and having no legitimate niece bequeaths a sum to his niece the
illegitimate niece is entitled to the legacy.
(iii) A having” I his will enumerate his
children, and named a, one of them B, who is illegitimate, leaves a legacy to
“my said children”. B take a share in
the legacy along with the legitimate children.
(iv) A leaves a legacy to “the children of B”,
B i, 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.
(v) A bequeaths a legacy to “the children of
B” B never had any legitimate child. C and D had, at the date of die 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.
(vi) A makes a bequest in favour of his child
by a certain woman. not, his wife .B takes the legacy.
(vii) A makes a bequest in wife- The bequest is
void favour of his child to be born of a woman who never becomes his (viii) A
makes a bequest in favour of the child of which a certain woman, not Married to
him, is Pregnant. The bequest is valid.
101. Rules Of construction where will purports to make
two bequests to same person. -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 or in addition to the first; if
there is nothing in the will to show what he intended the following rules shall
have effect in determining the construction to be put upon the will: -
(a) If the same specific thing is bequeathed
twice to the Sarne legatee in the same will or in the Will and again ill the
codicil, he is entitled to receive that specific thing only.
(b) Where one and the same will or one and
die -same codicil Purports to make, in two Places, a bequest to the same person
Of the same quantity or amount Of anything, he shall be entitled to One such
legacy only.
(c) Where two legacies of unequal -amount
are given to the same person in the same will, or in the same codicil, the
legatee is entitled to both.
(d) Where two legacies, whether equal or unequal
in amount, are given to same legatee, one by a will and the other by a codicil,
or each by a different codicil, the legatee is entitled to both legacies.
Explanation.
-In clauses
(a) to (d) of this section, the word “will” does not include codicil.
Illustrations
(i) A, having ten shares and no more, in
the Imperial Bank of India, made his will, which contains near its commencement
the words ‘I bequeath my ten shares in the Imperial Bank of India to B”. After other bequests, the will concludes with
the words “and I bequeath my ten shares in the Imperial Bank of India to
B”. B is entitled simply to receive A’s
ten shares in the Imperial Bank of India.
(ii) A, having one diamond ring, which was
given to him by B, bequeaths to C’ the 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
5,000 rupees and afterwards is the same will repeats the bequest in the same
words. B is entitled to one legacy of
5,000 rupees only.
(iv) A, by his will, bequeaths to B sum of
5,000 rupees and afterwards in the same will bequeaths to B the sum of 6,000
rupees. B is entitled to receive I
1,000 rupees.
(v) A, by his will, bequeaths to B 5,000
rupees and by a codicil to the will he bequeaths to him 5,000 rupees. B is entitled to receive 10,000 rupees.
(vi) A, by one codicil to his will, bequeaths
to B 5,000 rupees and by another codicil bequeaths to him, 6,000 rupees. B is entitled to receive I 1,000 rupees.
(vii) A, by his will, bequeaths “500 rupees to B
because she was my nurse”, and in another part of the will bequeaths 5000
rupees to B, because she went to England with my children.” B is entitled to
receive 1,000 rupees.
(viii) A, by his will bequeaths to B the sum of
5,000 rupees and also, in another part of the will, an annuity of 400
rupees. B is entitled to both legacies.
(ix) A, by his will, bequeaths to B the sum of
5,000 rupees and also bequeaths to him the sum of 5,000 rupees if he shall
attain the age of 18. B is entitled
absolutely to one sum of 5,000 rupees, and takes a contingent interest in
another sum of 5,000 rupees.
102. Constitution of residuary
legatee. -A residuary legatee may be constituted by
any words that show an intention on the part of the testator that the person designated 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 die 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 fie may hereafter
be appointed to”. B is constituted
residuary legatee.
(ii) A makes his will, with the following
passage at the end of it: - “I believe there will be found sufficient in my
banker’s hands to defray and discharge my debt; which I hereby desire 13 to do,
and keep the residue for her own use and pleasure”. 13 are 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.
103. Property to which residuary legatee entitled. - 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.
Illustrations
A by 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
of his Will A Purchases a 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.
104. Time of vesting legacy in general terms. - If a legacy is terms, without specifying the time when it is to be paid, the
legatee has a vested interest in it form the day of the death of the testator,
and, if he dies without having received it, it shall pass to his
representatives.
105. In what case legacy lapses. –
(1) If the legatee does not survive the
testor the legacy cannot effect, but shall lapse and from Part of the residue
of the testator’s property, unless it appears by the will that the testator
intended that it should go to so other person.
(2) In order to entitle the representatives
of the legatee to receive the legacy, it must be proved that he survived the
testator.
Illustrations
(i) The testator bequeaths to B “500 rupees
which B owes me.” B (lies before the testator; it legacy lapses.
(ii) A bequest is made to A and his
children. A (lies before the testator o
happens is to be dead when the will is made.
The legacy to A and his children lapse.
(iii) A legacy is given to A, and, ill 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
hi,% completing his eighteenth year, and in ca, he should die before he completes
his eighteenth year, to D. A completes his eighteenth year, and dies in the
lifetime of the testator. The legacy to
A lapses, and the bequest to 13 does not take effect.
(vi) The testator and the legatee perished in
the same, shipwreck. There is no evidence
to show which died first. They legacy
lapse.
106. Legacy does lapse it one of two joint legatees die
before testor. - If a legacy is given to two
persons.
Jointly, and one of them dies before the testator, the other legatee takes the
whole.
Illustrations
The legacy is
simply to A and B. A dies before the testator, B take, the legacy.
107. Effect of words showing testator’s intention to give
distinct shares. -If legacy is given to
legatees in words which show that the testator intended to give them, distinct
shires Of
it, then, if any legatee dies before the testator, so much of the legacy as was
intended for him shall fall into the residue of the testator’s property.
Illustrations
A sum of money is bequeathed
to A, B and C, to be equally divided among them. A die, before the testator. B
and C will only take so much as they would have had if A had survived the
testator.
108. When lapsed share goes as indisposed of - Where a share, which lapses, is a Part of the general residue
bequeathed by the Will that share shall go as
indisposed of.
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 indisposed of.
109. When bequest to testator’s child or lineal
descendant does not lapse on his death in testator’s lifetime. - Where a bequest has been
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 shall not lapse, but shall take effect as if the
death of the legatee had happened immediately after the death of the testator,
unless a contrary intention appears by the will.
Illustration
A makes his
will, by which lie bequeaths a sum of money to his son, B, for his own absolute
use and 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.
110. Bequest to A for benefit of B does not lapse by A’s
death. - Where
a bequest is made to one person for the benefit of another, the legacy does not
lapse by the death, in the Testator’s lifetime, of the person to whom the
bequest is made.
111. Survivorship in case of bequest to described class. -Where. a bequest is made simply to a described class of persons, the
thing bequeathed shall go only to such as are alive at the testator’s death.
Exception.
- If
property is bequeathed to a class of persons described as standing in a
particular degree of kindred to a specified individual, but their possession of
it is referred 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.
Illustrations
(i) A bequeaths 1,000 rupees to ‘the
children of B” 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 and D,
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 another 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 leasehold term as
remains unexpired.
(iii) A sum of money was bequeathed to A for
her life, and after her decease, to the children of D. 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
died in the lifetime of A, C’ having made a will, E having made no will. A has died, leaving E 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, and D, and
after that event another sister E was born.
C died during the life of B, D and E have survived B. One-third of A’s
lands belong to D, E and the representatives of C, in equal shares.
(v) A bequeaths 1,000 rupees to B for life
and after his death equally among the children of C. Up to the death of B, C had not any child. The bequest after the death of B is void.
(vi) A bequeaths 1,000 rupees to “all the
children born or to be born” of 13 to be divided among them at the death of C. At
the death of the testator. B has two
children, living D and E, After the death of the testator, but in the lifetime
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 belongs 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 that two other children, named D and E. E
died, but C and D were living when C attained majority fund belongs to C, D and
the representatives of E, to the exclusion of any child who may be born to B
after C’s attaining majority.
CHAPTER VII
OF VOID BEQUESTS
112. Bequest to person by particular description who is
not in existence testator’s death. - Where a bequest is made
to a person by particular description, an there is no person in existence at
the testator’s death who answers the description, the bequest is void.
Exception. - If property is bequeathed
to a person described as standing in a particular degree of kindred to a
specified individual. But his
possession of it is referred until time later then the death of the testator,
by reason of a prior bequest or otherwise; an if a person answering the
description is alive at the death of the Testator, or come into existence
between that event and such later time, The property shall, at such later time
go to that person, or, if he is dead, to his representatives.
Illustrations
(i) A bequeaths 1,000 rupees to the eldest
son of B. At the death of the testator, B has no soil the bequests is void.
(ii) A bequeaths 1,000 rupees 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 is born to C. Upon B’s death
the legacy goes to C’s son.
(iii) A bequeaths 1,000 rupees to B for life, and
after his death to the eldest son of C’. At the death of testator, C had no
son. Afterwards, during the life of B,
a soil, named D, is born to D dies, and then B dies. The legacy goes to the representative of D.
(iv) A bequeaths his estate of Green Acre to B
for life, and at his decease, to the eldest son of C. Up to the death of B, C has had no son. The bequest to C’s eldest
son is void.
(v) A bequeaths 1,000 rupees to the eldest
soil of C, to be paid to him after the death of B. At the death of the testator
C has no son, but a son is afterwards born to him during the life o B and is
alive at B’s death. C’s son is entitled
to the 1,000 rupees.
113. Bequest to person not in existence at testator’s
death subject to prior bequest- where a bequest is made to a
person not in existence at the time of the testator’s death, subject to a prior
bequest contained in the will, the later bequest shall be void, unless is
comprises the whole of the remaining interest of the testator in the thing
bequeathed.
Illustrations
(i) Property is bequeathed to A for his
life, and after his death to his eldest soil for life, and after the death of
the latter to his eldest son. At the
time of the testator’s death A has no soil.
Here the bequest to A’s 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 soil for his life
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 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.
114. Rule against perpetuity. -No bequest is valid whereby 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
shall he in expiration of that period, and to whom, if he attains full age, the
thing bequeathed is to belong.
Illustrations
(i) A fund is bequeathed to A for his life
and after his death to B for his life; and after B’s 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
visiting 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 B’s death is void.
(ii) A fund is bequeathed to A for his life,
and after his death to B for his life, and after D’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 living at the
time of the testator’s decease, and the time when either of them will attain
the age of 25 necessarily falls within own lifetime. The bequest it 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 B’s death it
shall be divided amongst such of B’s 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 the 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 for trustees for the
benefit of the testator’s daughters, with a direction that, if any of them
marry under age, 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.
115. Bequest to a class of persons
some of whom may come under rules in Sections 113 and 114. -If a bequest is made to a class of persons with regard to some of whom it is
inoperative by reason of the provisions of Section 113 or Section 114, such
bequest shall be 1[void in regard to
those persons only, and not in regard to the whole class].
Illustrations
(i) A fund is bequeathed to A for life, and
after his death to all 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 limits allowed for a
bequest. But A may have children after
the testator’. 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 A’s children,
therefore, is inoperative as to any child born after the testator’s death, 2[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 Illustration
(i). 2[Although
the mention of D, C and D do” 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
die age of 25 within 18 years after A’s death.]
1.
Subs. by Act 21 of 1929, Sec. 14,
for “wholly void.”
2.
Subs. by ibid., for certain words
(w.e.f. 1st April, 1930
116. 1[Bequest to take
effect on failure of prior bequest- Where by reason of any of the
rules contained in Sections 113 and 114,
any bequest in favour of a person or of a class of persons is void in
regard to such person or the whole of such c lass, any bequest contained in the
same will and intended to take effect after or upon failure of such prior
bequest is also void.]
Illustrations
(i) A fund is bequeathed to A for his life,
and after his death to such of his sons 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 of 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 void.
(ii) A fund is bequeathed to A for his life,
and after his death to such of his 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 effects upon 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 void.
1. Subs. by ibid., for
the original section.
1[117. Effect of direction for accumulation.-
(1) Where the terms of a will direct that the
income arising from any property shall be accumulated either wholly or in part
during any period longer than a period of eighteen years from the death of the
testator, such direction shall, save as hereinafter provided, be void to the
extent to which the period during which the accumulation is directed exceeds
the aforesaid period, and at the end of such period of eighteen years the
property and the income thereof shall be disposed of as if the period during
which the accumulation has been directed to be made had elapsed.
(2) This section shall not affect any
direction for accumulation for the purpose of-
(i) The payment of the debts of the
testator or any other person taking any interest under the will, or
(ii) The provision of portions for children
or remoter issue of the testator or of any other person taking any interest
under the will, or
(iii) The preservation or maintenance of any
property bequeathed; and such direction may be made accordingly.
1. Subs.
by Act 21 of 1929, Sec. 14,for the original section.
118. Bequest to religious or charitable uses. - No man
having a nephew or niece or any nearer relative shall have power to bequeath
any property to religious or charitable uses, except by a will executed not
less than twelve months before his death, and deposited within six months from
its execution in some place provided by law for the safe custody of the wills
of living persons.
1[Provided that nothing in this section shall apply
to a Parsi.]
Illustrations
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 of support of a public garden;
All these
bequests are void.
1. Added by Act 51 of
1991, sec. 6.
CHAPTER VIII
OF THE VESTING OF LEGACIES
119. Date of vesting of legacy when payment or possession
postponed. - Where by the terms of a
bequest the legatee is not entitled to immediate possession of the thing
bequeathed, a right to receive it at the proper time shall, unless a contrary
intention appears by the will, become vested in the legatee on the testator’s
death, and shall pass to the legatee’s representatives if he dies before that
time and without having received the legacy, and in such cases the legacy is
from the testator’s death said to be vested in interest.
Explanation. - An intention that a legacy
to any person shall not become vested in interest in him is not to be inferred
merely from a provision whereby the payment or possession of the thing
bequeathed is postponed, or whereby a prior interest therein is bequeathed to
some other person, or whereby the income arising from the fund bequeathed is
directed to be accumulated until the time of payment arrives, or from a
provision that, if a particular event shall happen, the legacy shall go over to
another person.
Illustrations
(i) A bequeaths to B 100 rupees, to be paid
to him at the death of C. On A’s 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 100 rupees, to be paid
to him upon his attaining the age of 18. On A’s 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
testor’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 As 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 provision 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.
120. Date of vesting when legacy contingent upon
specified certain event: -
(1) A legacy bequeathed in case a
specified uncertain event shall happen does not vest until that event happens.
(2) A legacy bequeathed in case a specified
uncertain event shall not happen does not vest until the happening of that
event becomes impossible.
(3) In either case, until the condition has
been fulfilled, the interest of the legatee is called contingent.
Exception. - Where a fund is
bequeathed to any person 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 mush of it as may be necessary, to be
applied for his benefit, the bequest of the fund is not Contingent.
Illustrations
(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, 8 and C all die under 18, or one of them attains that age.
(ii) A sum of money is bequeathed to A “in
case fie ,,hall 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 take 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 A’s death.
(v) A legacy is bequeathed to A when she
shall attain the age of 18, or shall marry under that age with the consent of
B, with a proviso that, if she neither attains 18 not marries under that age
with B’s 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. B’s interest in the bequest is
contingent until A’s fulfills the condition marrying,
(vii) An estate is bequeathed to A until he,;
have take advantage of any law for the relief of insolvent debtors, and after
that event to B. B’s interest in the bequest is contingent until A takes
advantages of such a law.
(viii) An estate is bequeathed to A if he shall
pay 500 rupees to B. A’s interest if’ the bequest is contingent until he has
paid 500 rupees to B.
(ix) A leaves his farm of Sultanpur Kurd to B,
if B shall convey his own farm of Sultanpur Buzurg to C. B’s 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 B’s hE4ving married C, or by the occurrence within that period of
an event which makes the fulfillment 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 B’s death.
(xii) A bequeaths to B 500 rupees a year upon
his attaining the age of I 8, and directs that the interest, or a competent part thereof, shall be applied
for his benefit until fie reaches that age.
The interest , or a
component part thereof, shall be applied for his benefit
until he reaches that age .The legacy is vested.
(xiii) A bequeaths to 8 500 rupees 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 fie arrives at that age. The legacy
is contingent.
121. Vesting of interest in bequest
to such members of a class as shall have attained particular age. - Where a bequest is made only to such members of a class as shall have
attained a Particular age, a person who has not attained that age cannot have a
vested interest in the legacy;
Illustration
A fund is bequeathed to such
of the children of A shall attain the age of 18, with a direction that, while
any child of A shall be under the age of 18, 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.
CHAPTER IX
OF ONOROUS
BEQUESTS
122. Onorous bequests. - Where a bequest imposes an obligation or the legatee, he can take
nothing by it unless-he accepts it fully.
Illustration
A, having shares in (X), a
prosperous joint stock company and also shams 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 (Y). He forfeits the shares in (X).
123. One of two Separate and Independent, bequests to same
person may be accepted, and other refused. - Where a will contains two
separate and independent bequests to the same person, the legatee is at liberty
to accept one of them and refuse the other, although the former may be
beneficial and the latter onorous.
Illustration
A, having a
lease for a term of Years of a house at a rent, which be, 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 a sum of money. B refuses to accept the lease. He will not by this refusal forfeit the
money.
CHAPTER X
OF CONTINGENT
BEQUESTS
124. Bequest contingent upon specified uncertain event, no than being
mentioned for its occurrence. - Where a legacy is given if a specified uncertain
event shall happen 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 fund bequeathed is payable or distributable.
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 effects.
(iii) A legacy is bequeathed to A when and if
he attains the age of 18, and, 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 B’s death without children”, to C. 7be
words “in case of B’s death without children” are to be understood as meaning
in case 8 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”.
125. Bequest to such certain Persons
as shall be surviving at some period not specified- Where
a bequest is made to such of certain ns as shall be surviving at some period,
but the “act period is not specified, the legacy shall go to such of them as
are alive at the time of payment of distribution, unless a Contrary intention
appears.
Illustrations
(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 testor ,
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 die, in the lifetime of
A. The legacy goes to the representative 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 life-time of A, the
whole shall go to the survivor. B dies
in the lifetime of A. The legacy goes to the representative of C.
CHAPTER XI
OF CONDITIONAL
BEQUESTS
126. Bequest upon impossible condition.- A bequest upon all impossible condition is void.
Illustrations
(i) An estate is bequeathed to A on
condition that fie shall walk 100 miles in an hour. The bequest is void.
(ii) A bequeaths 500 rupees to B on condition
that fie shall marry A’s daughter. A’s daughter was dead at the date of the
will. The bequest is void.
127. Bequest upon illegal or immoral condition. - A bequest upon conditions the fulfillment of which would be
contrary to law or to morality is void.
Illustrations
(i) A bequeaths 500 rupees to B on
condition that he shall murder C. The bequest is void.
(ii) A bequeaths 5,000 rupees to his niece if
she will desert her husband. The
bequest is void.
128. Fulfillment of condition precedent to vesting of
legacy. –Where a will imposes a
condition to be fulfilled before the legatee can take a vested interest in the
thing bequeathed, the condition shall be considered to have been fulfilled if
it has been substantially Complied with.
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 of 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 intentions, 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. A marries with the consent of B and C. A has fulfilled the
condition.
(iii) A legacy is bequeathed to A on condition
that fie %hall 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 afterwards 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 lie shall marry with the consent of B, C and D.A marries without the
consent of 8, C and D, but obtains their consent after the marriage. A has not fulfilled the conditions.
(vi) A makes his will whereby he bequeaths a
sum of money of B if B shall marry with the consent of A’s executor’s 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.
129. Bequest to A and on failure of prior bequest to B. -
Where there is a bequest to one person and a bequest of the same thing to
another, if the prior bequest shall fail, the second bequest shall take effect
upon the failure of the prior bequest although the failure may Dot have
occurred in the manner contemplated by the testator.
Illustrations
(i) A bequeaths a sum of money to his own
children surviving him, and, if they all die under 18, to B. A dies without
having ever had 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 lie should neglect to do so, to C. B dies in the testator
lifetime. The bequest to C takes
effect.
130. When second bequest not to take effect on failure of
first. -Where the will shows an intention that the
second bequest shall take effect only in the event of the first bequest
failing in a particular manner, the second bequest shall not take effect,
unless the prior bequest fails in that particular manner.
Illustrations
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 make it impossible to prove that she died before him, the bequest to B
does not take effect.
131. Bequest over, conditional upon happening or not
-happening of specified uncertain event:-
(1)
A bequest may be made to any person with the condition superadded
that, in case a specified uncertain event shall happen the thing bequeathed
shall go to another person, or that in case a specified uncertain event shall
not happen, the thing bequeathed shall go over to another person.
(2) In each case the ulterior bequest is
subject to the rules contained in Sections 120, 121, 122, 123, 124, 125, 126,
129 and 130.
Illustrations
(i) A sum of money is bequeathed to A, to
he paid to him at the age of 18, and if
lie shall die before he attains that age, to B. A takes a vested interest in
the legacy, subject to be divested and to 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 be 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 for
life, and, after his death. to B; but if B shall then be dead, leaving a son,
such son is to stand in die 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.
(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.
132. Condition must be strictly
fulfilled. - An ulterior bequest of the kind
contemplated by section 131 cannot take effect ,the condition is strictly
fulfilled .
Illustrations
(i) A legacy is bequeathed. to A with a
provision 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 provisions that , if he marries without the consent of B, to 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 18 , or marriage with a provision that, if A dies under 18 or marries without consent of B, the
legacy shall go to C. A marries under 18; without the consent of B. The bequest
to C takes effect.
133. Original bequest not affected
by invalidity of second. —If the ulterior bequest be not valid the original bequest is not affected by it.
Illustrations
(i) An estate is bequeathed to A for his life with condition superadded
that, if he shall not on a given day
walk 100 mules in an hour , the estate shall go to B. The condition
being void. A retains his estate as if no condition had 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 testors death, had not had a son , The bequest over is void under section 105, and A
is entitled to the estate during his life .
134. Bequest
conditional that it shall cease to have effect in CAE a specified uncertain
event shall happen, or not happen.----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.
Illustrations
(i) An
estate is bequeathed to A for his life
, with a proviso that , in case he shall cut down a certain wood, he 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 .
(iii) An estate is bequeathed to A, provided
that , if he shall not go to England
within three years after the
testors 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 the
proviso that, if she 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 s nun, the bequest to her shall cease to
have any effect . B becomes a nun in a
lifetime of A. She thereby loses her contingent interest in the fund.
135. Such condition must not be
invalid under section 120.- 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 be one which could be legally constitute the condition
of a bequest as contemplated by section
120.
136. Result of legatee rendering
impossible or indefinitely postponing act for which no time specified, and on
non- performance of which subject –matter to go over.- Where a bequest is made with a condition superadded that, unless the
legatee shall perform a certain act, the subject-matter of the bequest shall go
to another person, or the bequest shall 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 act
required, the legacy shall go as if the legatee had died without performing
such act.
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 fulfill 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 hereby indefinitely postpones the fulfillment of the
conditions. The bequest ceases to have
effect.
137. Performance of condition, precedent or subsequent,
within specified time. Further time in case of fraud. -Where the will requires an act to be performed by the legatee within a
specified time, either as a condition to be fulfilled before the legacy is enjoyed,
or as a condition upon the non-fulfillment of which the subject-matter of the
bequest is to go over to another person or the bequest is to cease to have
effect, the act must be performed within the time specified, unless the
performance of it be prevented by fraud, in which case such further time shall
be allowed as shall be requisite to make up for the delay caused by such fraud.
CHAPTER XII
OF BEQUESTS WITH
DIRECTIONS AS TO APPLICATION OR ENJOYMENT
138. Direction that fund be employed in particular
manner following absolutely bequest of same to or for benefit of any person. -Where
a fund is bequeathed Absolutely to or for the benefit of any person, but the
will contains a direction that it shall be applied or enjoyed in a particular
manner, the legatee shall be entitled to receive the fund as if the will had
contained no such direction.
Illustration
A sum of money is bequeathed
towards purchasing a country residence of 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.
139. Direction that mode of enjoyment of absolute bequest
is to be restricted, to secure specified benefit for legatee. -
Where a testator absolutely bequeaths a fund, so as to sever it from his own
estate, but directs that the mode of enjoyment of it by the legatee shall be
restricted so as to secure a specified benefit for the legatee; if that benefit
cannot be obtained for the legatee, the fund belongs to him as if the will had
contained no such direction.
Illustrations
(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.
140. Bequest of fund for certain purposes, some of which
cannot be fulfilled: -. Where a testator does not
absolutely bequeath a fund, so as to sever it from his own estate, but gives it
for certain purposes, and part of those purposes cannot be fulfilled, the fund,
or so much of it as has not been exhausted upon the objects contemplated by the
will, remains a part of the estate of the testator.
Illustrations
(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 having
ever had 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.
CHAPTER XIII
OF BEQUESTS TO
AN EXECUTOR
141. Legatee named as executor cannot take unless he
shows intention to act as executor. -If a legacy is
bequeathed to a person who is named an executor of the will, he shall not take the
legacy, unless he proves the will or otherwise manifests an ;Intention to act
as executor.
Illustration
Legacy is given
to A, who is named as 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.
CHAPTER XIV
OF SPECIFIC
LEGACEES
142. Specific legacy defined. - Where a testator bequeaths to any person a specified part of his property,
which is distinguished from all other parts of his property, the legacy is said
to be specific.
Illustrations
(i) A
bequeathed 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 time of my death”:
“The sum of
1,000 rupees in a certain chest”;
“The debt
which B owes me”;
“All my
bills, bonds and securities belonging to me lying in my lodgings in Calcutta”;
“All my
furniture in my house in Calcutta”;
“All my goods
on board a certain ship now lying in the river Hooghly”;
“2,000 rupees
which I have in the hands 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”
“1,000
rupees, being part of a debt due to me from C’,
“ My capital
stock of 1,000 pounds in East India Stock”;
“My
promissory notes of the Central Government for10,000 rupees in their 4 per
cent, loan”;
“All such sums of money as
my executors may, after my death, receive in respect of the debt due to me from
the insolvent firm of D and Company”;
“All the wine,
which I may have in my cellar at the time of my death”;
“Such of my
horses as B may select”;
“All my
shares in the Imperial Bank of India”;
“All my
shares in the Imperial Bank of India which I may Possess at the time of my
death”;
“All the
money which I have in the 5 1/2 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 10,000 rupees, bequeaths to his executors “Government promissory notes for
10,000 rupees in trust to sell” for the benefit of B. The legacy is specific.
(iii) A, having property at Benares, and also
in other places, bequeaths to B all his property at Benares. The legacy is specific.
(iv) A bequeaths to B-
His house in
Calcutta;
His zamindari
of Rampur;
His taluq of
Ram-Nagar;
His lease of
the indigo-factory of Salkya;
An annuity of
500 rupees out of the rents of his zamindari of W.
A directs his
zamindari of X to be sold, and the proceeds to be invested for the benefit of
B.
Each of these
bequests is specific.
(v) A by his will charges his Zamindari
annuity of 1,000 rupees to C during his life, and subject to this charge be
bequeaths the zamindari to D. Each of these bequests: is specific.
(vi)
A bequeaths a sum of money-
To buy a
house in Calcutta for B;
To buy an
estate in zila Faridpur for B;
To buy a diamond ring for B;
To buy a horse for B;
To be invested in shares in the Imperial Bank
of India for B;
To be invested in Government securities for B.
A bequeaths to B—
“A diamond ring”;
“A horse”;
“10,000 rupees worth of
Government securities”;
“An annuity of 500 rupees”;
“2,000 rupees to be paid in
cash”;
“So much money as will
produce 5,000 rupees four percent., 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.
No one of these legacies is specific.
143. Bequest of certain sum where
stocks, etc., in which invested are described. - Where
a certain sum is bequeathed, the legacy is ‘lot specific merely because the
stock, funds of securities in which it is invested are described in the will.
Illustration
A
bequeaths to B---
“10,000
rupees If my funded property”;
“10,000 rupees of my property now invested in
shares of the East Indian Railway
Company”;
“10,000
rupees, at present secured by mortgage of Rampur factory”.
No one of these legacies is specific.
144. Bequest of stock where testator
had, at, the date of equal or greater’ amount of stock of same kind. -Where
a bequest is made in general terms of a certain’ amount. of any kind of stock,
the legacy is not specific merely because the testator was, at the date of his
will, possessed of stock of the specified kind, to an equal or greater amount
than the amount bequeathed.
Illustration
A
Bequeaths to B 5,000 rupees five percent Government securities. A had at the
date of the will five per cent.
Government securities for
5,000 rupees. 7le legacy is
not specific.
145. Bequest of money Where not payable until part of
testator’s Property disposed of in certain way. - 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.
Illustration
A bequeaths to B 10,000
rupees and directs that this legacy hall be paid as soon as A’s property in
India shall be realized in England. The legacy is not specific,
146. When enumerated articles not deemed specifically
bequeathed. -Where a will contains a
bequest of the residue of the testator’s property along with an enumeration of
some items of property not previously bequeathed, the articles enumerated shall
not be deemed to be specifically bequeathed.
147. Retention, in form, of specific bequest to several
persons in succession.:- Where property is
specifically bequeathed to two or more persons in succession, it shall be
retained in the form in which the testator left it, although it may be of such a
nature that its value as continually decreasing.
Illustrations
(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 B’s 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 C’S 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.
148. Sale and investment of proceeds of property
bequeathed to two or more persons in succession. -Where property comprised in a bequest to two or more persons in
succession is not specifically bequeathed, it shall, in the absence of any direction to
the contrary, be sold, and the proceeds of the sale shall be invested in such
securities as the High Court may by any general rule authorise or direct, and
the fund thus constituted shall be enjoyed by the successive legatees according
to the terms of the will.
Illustration
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.
149. Where deficiency of assets to pay legacies, specific
legacy not to abate with general legacies: - If There
is a deficiency of assets to pay legacies, a specific legacy is not liable to
abate with the general legacies.
CHAPTER XV
OF DEMONSTRATIVE
LAGACIES
150. Demonstrative legacy defined. - Where 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 the same the primary fund or stock out of which payment is to be made, the
legacy is said to be demonstrative.
Explanation. - The distinction between a specific legacy and a
demonstrative legacy consists in this, that-
where specified is given to
the legatee, the legacy is specific;
where the legacy is directed
to be paid out of specified property, it is demonstrative.
Illustrations
(i) A bequeaths to B 1,000 rupees,
being Part of a debt due to him from W.
He also bequeaths to C 1,000 rupees 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 at Rampur”
“10,000 rupees out of my five per
cent promissory notes of the Central Government”;
An annuity of 500 rupees “from my funded
property”;
“1,000 rupees out of the sum of 2,000 rupees due to me by C”;
An annuity, and directs it
to be paid “ out of the rents arising
from my taluk of Ramnagar”.
(iii) A bequeaths to B-
“10,000 rupees, out of my
estate at Ramnagar,” or charges it on his estate at Ramnagar;
“10,000
rupees, being my share of the capital embarked in a certain business” Each of
these bequests is demonstrative.
151. Order of payment when legacy directed to be paid out
of fund the subject of specific legacy. - 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 shall first be
paid to the legatee, and the demonstrative legacy shall 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.
Illustration
A bequeaths to
8 1,000 rupees, being part of a debt due to him from W. He also bequeaths to C
1,000 rupees to be paid out of the debt due to him from W. The debt due to A
from W is only 1,500 rupees; of these 1,500 rupees, 1,000 rupees belong to B,
and 500 rupees are to be paid to C. C is also to receive 500 rupees out of the
general assets of the testator.
CHAPTER XVI
OF ADEMPTION OF
LEGACIES
152. Ademption explained. -If anything which has been 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 deemed; that is, it cannot take effect, by reason
of the subject matter having been withdraw front the operation of the will
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. 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 are deemed.
(ii) A bequeaths to B-
“The sum of 1,000 rupees, in a
certain chest”;
“All the horses in my
stable”.
At the death of
A, no money is found in the chest, and no horses in the stable. The legacies
are a deemed.
(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 a deemed.
153. Non-ademption of demonstrative legacy. - A demonstrative legacy is not adeemed by reason that the property on which it is charged by
the will does not exist at the time of the death of the testator or has been
converted into property of a different kind, but it shall in such case be paid
out of the general assets of the testator.
154. Ademption of specific bequest of right to receive something from
third party.--Where the thing specifically
bequeathed is the right to receive something, value from a third party, and the
testator himself receives it, the bequests a deemed.
Illustrations
(i) A bequeaths to B-
“The debt which C owes me”;
“2,000 rupees
which I have in the hands of D”;
The money due to me of 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 a deemed.
(ii) A bequeaths to B his interest in certain
policies of life assurance. A in his lifetime receive. the amount of the
policies . The legacy is adeemed.
155. Ademption pro Tanto by testator’s receipt of part of
entire thing specifically bequeathed. -The receipt by the testator
of a part of an entire thing specifically bequeathed shall operate as an
ademption of the legacy to the extent of the Sum so received
Illustrations
A bequeaths
to B “the debt due to me by C’. The debt amounts to 10,000 rupees. C pay; to A 5,000 rupees-the one- half of
the debt The legacy is revoked by ademption, so far as regards the 5,000 rupees
received by A.
156. Ademption pro tanto by testator’s receipt of portion
of entire fund of which portion has been specifically bequeathed. - 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 shall operate as an ademption only
to the extent of the amount so received; and the residue of the fund or stock
shall be applicable to the discharge of the specific legacy;
Illustration
A bequeaths to B one-half of
the sum of 10,000 rupees due to him from W. A in his lifetime receives 6,000
rupees-part of the 10,000 rupees. The
4,000 rupees, which are due from W to A at the time of his death, belong to B
under the specific bequest.
157. Order of payment where portion of fund specifically
bequeathed to one legatee, and legacy charged on same fund to another, and
testator having received portion of that fund, remainder insufficient to
pay both legacies. -Where a portion of a fund is specifically bequeathed to one legatee,
and legacy charged on the same fund is bequeathed to another legatee, then, if
the testator receives a portion of that fund, and the remainder of the fund is
insufficient to pay both the specific and the demonstrative legacy, the
specific legacy shall be paid first, and the residue (if any) of the fund shall
be applied so far as it will extend in payment of the demonstrative legacy, and
the rest of the demonstrative legacy shall be paid out of the general assets of
the testator.
Illustration
A bequeaths to B 1,000
rupees, part of the debt of 2,000 rupees due to him from W. He also bequeaths
to C 1,000 rupees to he paid out of the debt clue to him from W. A afterwards
receives 1[500] rupees, part of the debt,
and dies leaving only 1,500 rupees due to him from W. Of these 1,500 rupees,
1,000 rupees belong to B, and 500 rupees are to he paid to C. C is also to
receive 500 rupees out of the general assets of the testator.
1.
Subs. by Act 10 of 1927. Sec. 2
and Schedule. I, for “5000”.
158. Ademption where stock, specially bequeathed, does
not exist at testator’s death. - Where stock, which has been
specifically bequeathed, does not exist at the testator’s death, the legacy is
a deemed.
Illustration
(i) A bequeaths to B-
“My capital stock of ₤ 1,000 pounds in East India Stock”;
“My promissory notes of the
Central Government for 10,000 rupees in their 4 per cent loan.”
A sells the stock and the notes. The
legacies are a deemed.
159. Ademption pro tanto where stock, specifically
bequeathed exists in part only at testator’s death. - Where stock, which has been specifically bequeathed, exists only in part at the
testator’s death, the legacy is a deemed so far as regards that part of the
stock, which has ceased to exist.
Illustrations
A bequeaths to B his 10,000
rupees in the 5 ½ percent loan of the
Central Government. A sells one-half of his 10,000 rupees in the loan in
question. One-half of the legacies is a
deemed.
160. Non-ademption of specific bequest of goods described
as connected with certain place, by reason of removal. -A specific bequest of goods under a description connecting them with a certain
place is not a deemed by reason that they have been removed from such place
from any temporary cause, or by fraud or without the knowledge or sanction of
the testator.
Illustrations
(i) A bequeaths to B “All my households
goods which shall be in or about my dwelling–house in Calcutta at the time of
my death”. The goods are to be removed from the house to save them from fire. A
dies before they are brought back.
(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.
Neither of these legacies is adeemed.
161. When removal of thing bequeathed does not constitute
ademption. -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.
Illustrations
(i) 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
lodgings in Calcutta.
(ii) A bequeaths to B all his house in
Calcutta. The testator has a house at Calcutta. And another at Chinsurah, in which he lives alternatively 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.
(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.
No one of these legacies is
revoked by ademption.
162. When thing bequeathed is a valuable to be received b
testator from third person; and testator himself or his representative,
receive it-
Where the thing bequeathed is not the right to receive something of value from
a third person, but the money or other commodity which may be received from the
third person by the testator himself or by his representatives, the receipt of
such sum of Money or other Commodity by the testator shall not constitute an
ademption; but if he mixes it up with the general mass of his Property, the
legacy is a deemed.
Illustrations
A bequeaths to B whatever
sum may be received from his claim on C of his Claim C, and sets it apart from
the general mass of his property. The legacy is not adeemed.
163. Change by operation of law of subject of specific
bequest between date of will and testator’s death. - Where a thing specifically bequeathed undergoes a change between the
date of the will and the testator’s death, and the change takes place by
operation of law, or in the course of execution of the provisions of any legal
instrument under which the thing bequeathed was held, the legacy is not a
deemed by reason of such change.
Illustrations
(i) A bequeaths to B “all the money which I
have in the 5 1/2 Percent loan of the Central Government”. The securities of
the 5 1/2 per cent loan are converted during A’s lifetime into 5 Percent stock.
(ii) A bequeaths to B the sum of 2,000 $
invested in Consoles in the names of trustees for A. The sum of 2,000 $ is
transferred by the trustee, into A’s own name.
(iii) A bequeaths to B the sum of 1,000 rupees in
promissory notes of the Central Government which he has power under his
marriage settlement to dispose of by will. Afterwards, in A’s lifetime, the
fund is converted into Consoles by virtue of an authority contained in the
settlement.
No one of these legacies has been
adeemed.
164. Change of subject without
testator’s knowledge. - Where a thing specifically
bequeathed undergoes a change between the date of the will and the testator’s
death, and the change takes place without the knowledge or sanction of the
testator, the legacy is not adeemed.
Illustration
A bequeaths to B “all my 3
per cent Console”. The consoles are, without A’s knowledge, sold by his agent
and the proceeds converted into East India Stock. This legacy is not adeemed.
165. Stock specifically bequeathed lent to third party on
condition that it be replaced. - 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.
166. Stock specifically bequeathed sold but replaced,
and belonging to testator at his death. - 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.
CHAPTER XVII
OF THE PAYMENT OF LIABILITIES IN RESPECT OF THE SUBJECT OF A BEQUEST
167. Non-liability of executor to exonerate specific
legatees. –
(1) Where property specifically bequeathed
is subject at the death of the testator to any pledge, lien, or encumbrance
created by the testator himself or by any person under whom he claims, then,
unless a contrary intention appears the will, the legatee, if he accepts the
bequest, shall accept it subject to such pledge or encumbrance, and shall (as
between himself and the testator’s estate) be liable to make good the amount of
such pledge or encumbrance.
(2) A contrary intention shall not be
inferred from any direction which the will may contain for the payment of the
testator’s debt generally.
Explanation.-
A
periodical payment in the nature of land- revenue or in the nature of rent is
not such an encumbrance as is contemplated by this section.
Illustrations
(i) A bequeaths to B the diamond ring given
him by C. At A’s death the ring is held in pawn by D, to whom it has been
pledge 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 10,000 rupees; and the whole of the
principal sum, together with interest to the amount of 1,000 rupees, is due at
A’s death. B, if he accepts the
bequest, accepts it subject to his charge and is liable, as between himself and
A’s estate, to pay the sum of 11,000 rupees thus due.
168. Completion of testator’s tide
to things bequeathed to be at cost of his estate. -
Where anything is to be done to complete the
testator’s title to the thing bequeathed, it is to be done at the cost of the
testator’s estate.
Illustrations
(i) A, having contracted in general terms
for the purchase of a piece of land at
a certain price, bequeaths 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 half 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.
169. Exoneration of legatee’s immovable property for
which land-revenue or rent payable periodically. -
Where there is bequest of any interest in immovable property in respect of
which payment in the nature of land-revenue or in the nature of rent has to be
made periodically, the estate of the testator shall (as between such estate and
the legatee) make good such payments or a proportion of them, as the case may be,
up to the day of his death.
Illustration
A bequeaths to
B a house, in respect of which 365 rupees 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 25 rupees in Respect of
the rent.
170. Exoneration of specific legatee’s stock in
joint-stock company. -In the absence of any
direction in the will, where there is a specific bequest of stock in a
joint-stock company, if any call or other payment is due from the testator at the
time of his death in respect of the stock, such call or payment shall, as
between the testator’s estate and the legatee, be borne by the estate; but, if,
any call or other payment becomes due in respect of such stock after the
testator’s death, the same shall, as between the testator’s estate and the
legatee, be borne by the legatee, if he accepts the bequest.
Illustrations
(i) A bequeaths to B his shares in a
certain railway. At A’s death there was due from him the sum of 100 rupees 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. These payments must be
home by A’s estate.
(ii) A has agreed to take 50 shares in an
intended joint-stock company, and has contracted to pay up 100 rupees 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 A’s title.
(iii) A bequeaths to 8 his shares in a certain
railway. 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
railway company. At a meeting held
during his lifetime a call is made of
fifty rupees per share, payable by three installments A bequeaths his shares to
B, and dies between the day fixed for the
payment of the first and the day fixed for the payment of the second installments, and without having paid
the first installment; A’s estate must pay the first installment, and B, if he
accepts the legacy, must pay the remaining installments.
CHAPTER XVIII
OF BEQUESTS OF
THINGS DESCRIBED IN GENERAL TERMS
171. Bequest of thing described in general terms. - 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.
Illustrations
(i) A bequeaths to B a pair of
carriage-horses or 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.
CHAPTER XIX
OF BEQUESTS OF THE INTEREST OR PRODUCE OF A FUND
172. Bequest of interest or produce of fund.– Where the interest or produce of a fund is bequeathed to any person, and the will affords no indication of any intention that the enjoyment of the bequest should be of limited duration, the principal, as well as the interest, shall belong to the legatee.
Illustrations
(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 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 his 5
½ 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 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.
CHAPTER XX
OF BEQUESTS OF
ANNUITIES
173. Annuity created by will
payable for life only unless contrary intention appears by will. - Where an annuity is created by will, the legatee is entitled to receive
it for his life only, unless a contrary intention appears by the will,
notwithstanding that the annuity is directed to be paid out of the property
generally, or that a sum of money is bequeathed to be invested in the purchase
of it.
Illustrations
(i) A bequeaths to B 500 rupees a
year. B is entitled during his life to
receive the annual sum of 500 rupees,
(ii) A bequeaths to B the sum of 500 rupees
monthly. B is entitled during his life to receive the sum of 500 rupees every
month.
(iii) A bequeaths an annuity of 500 rupees to
B for life and on B’s death to C, B is entitled to an annuity of 500 rupees
during his life. C, if he, survives B, is entitled to an annuity of 500 rupees
from B’s death until his own death.
174. Period of vesting where will
directs that annuity be provided out of proceeds of property, or out of
property generally, or where money bequeathed to be invested in purchase of
annuity.-Where
the will directs that an annuity shall be provided for any person out of the
proceeds of property, or out of property generally, or where money is
bequeathed to be invested in the purchase of any annuity for any person, on the
testator’s death, the legacy vests in interest in the legatee, and he is
entitled at his option to have an annuity purchased for him or to receive the
money appropriated for that purpose by the will.
Illustrations
(i) A by his will directs that his executors
shall, out of his property, purchase an annuity of 1,000 rupees for B. B is
entitled at his option to have an annuity of 1,000 rupees 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 for his life, and
directs that after B’s 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 lifetime. On B’s
death the fund belongs to the representative of C.
175. Abatement of annuity. -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 shall abate
in the same proportion as the other pecuniary legacies given by the will.
176. Where gift of annuity and
residuary gift, whole annuity to be first satisfied.-Where there is a gift of an annuity and a residuary gift, the whole of
the annuity is to be satisfied before any part of the residue is paid to the
residuary legatee, and, if necessary, the capital of the testator’s estate
shall be applied for that purpose.
CHAPTER XXI
OF LEGACIES TO
CREDITORS AND PORTIONERS
177. Creditor prima facie entitled
to legacy as was as debt. - Where a debtor bequeaths
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 shall be entitled to the
legacy, as well as to the amount of the debt.
178. Child prima facie entitled to
legacy as portion. - Where a parent, who is
under obligation by contract to provide a portion for a child, fails to do so, 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 shall be entitled
to receive the legacy, as well as the portion.
Illustration
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 20,000 rupees on her
marriage. The covenant having been broken.
A bequeaths 20,000 rupees to each of the married daughters of himself
and B. The legatees are entitled to the benefit of this bequest in addition to
their portions
179. No ademption by subsequent
provision for legatee. -No bequest shall be wholly
or partially adeemed by a subsequent provision made by settlement or
otherwise for the legatee.
Illustrations
(i) A bequeaths 20,000 rupees to his son B.
He afterwards gives to B the sum of 20,000 rupees. The legacy is not thereby
adeemed.
(ii) A bequeaths 40,000 rupees to B, his
orphan niece whom he had brought up from her infancy. Afterwards, on the occasion of B’s marriage, A settles upon her
the sum of 30,000 rupees. The legacy is not thereby diminished.
CHAPTER XXII
OF ELECTION
180. Circumstances in which
election takes place. -Where a person, by his
will, professes to dispose something which he has no right to dispose of, the person to
whom the thing belongs shall elect either to confirm such disposition or to
dissent from it, and, in the latter case, he shall give up any benefits which
may have been provided for him by the will.
181. Devolution of interest
relinquished by owner. - An interest relinquished in the
circumstances stated in Section 180 shall devolve as if it had not been
disposed of by the will in favour of the legatee, subject, nevertheless, 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.
182. Testator’s belief as to his
ownership immaterial. -The provisions of Secs. 180 and
181 apply whether the testator does or does not believe that which he professes
to dispose of by his will to be his own.
Illustrations
(i) The farm of Sultanpur was the property
of C. A bequeathed it to B, giving a legacy of 1,000 rupees to C. C has elected
to retain his farm of Sultanpur, which is worth 800 rupees. C forfeits his legacy of 1,000 rupees, of
which 800 rupees goes to B, and the remaining 200 rupees falls into the
residuary bequest, or devolves 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 1,000 rupees, 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 1[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 whosesoever”, 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 property in England.
1. Subs. by Act 3 of 1951, Sec. 3 and
Schedule, for the “State” (w.e.f. 1st April).
183. Bequest for man’s benefit how
regarded for purpose of election. - A bequest for a
person’s benefit is, for the purpose of election, the same thing as a bequest
made to himself.
Illustration
The farm of
Sultanpur Kurd 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 the proceeds applied in payment of B’s debts, B must elect
whether he will abide by the will, or keep Ws
farm of Sultanpur Kurds in opposition to it.
184. Person deriving benefit
indirectly not put to election. - A person taking
no benefit directly under a will, but deriving a benefit under it indirectly,
is not put to his election.
Illustration
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
1,000 rupees 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 C’s estate to
take under the will. In that capacity he receives the legacy of 1,000 rupees
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 opposition to the will.
185. Person taking in individual
capacity under will may in other character elect to take in opposition. -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.
Illustration
The estate of Sultanpur is
settled upon A for life, and after his death, upon B. A leaves the estate of
Sultanpur to D, and 2,000 rupees to B, and 1,000 rupees 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 2,000 rupees. C may do this, and yet claim his legacy of 1,000 rupees under
the will.
186. Exception to provisions of
last six sections. -Notwithstanding anything
contained in Secs. 180 to 185, where a particular gift is expressed in the will to be in
lieu of something belonging to the legatee which is also in terms 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 give to
him, by the will.
Illustration
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 200 rupees 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 1,000 rupees. The widow elects to take what is entitled to under the
settlement. She is bound to relinquish the annuity but not the legacy of 1,000
rupees.
187. When acceptance of benefit given by will constitutes elections to
take under will. – 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 judgement of a reasonable
man in making an election, or if he
waives inquiry into the circumstances.
Illustrations
(i) A is owner of an estate called Sultanpur
Kurd, and has a life interest in other estate called Sultanpur Buzurg to which
upon his death his son B will be absolutely entitled. The will of A gives the
estate of Sultanpur Kurd to B and 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 estate of
Sultanpur Kurd .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 5,000 rupees, allows
C to take possession of Sultanpur. He afterwards discovers that the residue
does not amount to more than 500 rupees B has not confirmed the bequest of
Sultanpur to C.
188. Circumstances in which knowledge or waiver
is presumed or inferred. —
(1) Such knowledge or waiver of inquiry shall
in the absence of evidence to the Contrary, 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.
(2) Such knowledge or waiver of inquiry may
inferred from any act of the legatee which renders it impossible to place the
persons interested in the subject-matter of the bequest in the same condition
as if such been done.
Illustrations
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 hereby
confirmed the bequest of the estate to B.
189. When testator’s
representatives may call upon legatee to elect.- If the legatee does not, within one year after the death of testor,
signify to the testor’s representatives his intention to confirm or to dissent
from the will, the representatives shall upon the expiration of that period,
require him to make his election; and if he does not comply with such
requisition within the reasonable time after he has received it, he shall be
deemed to have elected to confirm the will.
190. Postponement of election in case
of disability. – In case of disability the
election shall be postponed until the disability ceases, or until the election
is made by some competent authority.
CHAPTER XXIII
OF GIFTS IN CONTEMPLATION OF DEATH
191. Property transferable by gift
made in contemplation of death. -
(1) A man may dispose, by gift made in
contemplation of death, of any movable property which he could dispose of by
will.
(2) A gift is said to be made in
contemplation of death where a man, who is ill and expects to die shortly of
his illness, delivers to another the possession of any movable property to keep
as a gift in case the donor shall die ‘of that illness.
(3) Such a gift may be resumed by the giver;
and shall not take effect if he recovers from the illness during which it was
made; nor if he survives the person to whom it was made.
Illustrations
(i) A, being ill, and in expectation of
death, delivers to B, 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
mortgage-deeds.
A dies of the
illness during which he delivered these articles. B is entitled to-
The watch;
The debt secured by C’s 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 sets aside the
parcels. B and C are not entitled to
the contents of the parcels.
PART VII
PROTECTION OF
PROPERTY OF DECEASED
(1) If any person dies leaving property,
movable or immovable, and person claiming a right by succession thereto, or to
any portion thereof, may make application 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.
(2) My agent, relative or near friend, or the
Court of Wards in cases within their cognizance, may, in the event of any
monor, or any disqualified or absent person being entitled by succession to
such property as aforesaid, make the like application for relief.
193. Inquiry made of Judge. -The District Judge to whom such application is made shall, in the first
place, examine the applicant on oath, and may make such further inquiry, if
any, as he thinks necessary 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, or the person on whose
behalf he applies, is really entitled and likely to be materially Prejudiced if
left to the ordinary remedy of a suit, and that the application is made bona
fide.
194. Procedure. -If the District Judge is satisfied that there is sufficient ground for
believing as aforesaid but not otherwise, he shall summon the Party complained
of, and give notice of vacant or disturbed possession by publication, and,
after the expiration of a reasonable time, shall determine summarily the right to
possession (subject to a suit as hereinafter provided) and shall deliver
possession accordingly:
Provided that
the Judge shall have the power to appoint an officer who shall take an
inventory of effects, and seal or otherwise secure the same, upon being applied
to for the purpose, without delay, whether he shall have concluded the inquiry
necessary for summoning the party complained of or not.
195. Appointment
of curator pending determination of proceeding. -If it further appears upon such inquiry as aforesaid that danger is to
be apprehended of the misappropriation or waste of the property before the summary
proceeding can be determined, and that the delay in obtaining security form the
party in possession or the insufficiency thereof is likely to expose the party
out of possession to considerable risk, provided he is the lawful owner, the
District Judge may appoint one or more curators whose authority shall continue
according to the terms of his or their respective appointments, and in no case
beyond the determination of the summary proceeding and the confirmation or
delivery or possession in consequence thereof :
Provided that in the case of
land, the Judge may delegate to the Collector, or to any office subordinate to
the Collector, the powers of a curator:
Provided, further, that
every appointment of a curator in respect of any property shall be duly
published.
196. Powers conferrable on curator. - The District Judge may authorise the curator to take possession of the
property either generally, or until security is given by the party in
possession, or until inventories of the property have been made, or for any other
Purpose necessary for securing the property from misappropriation or waste by
the party in possession:
Provided that it shall be in
the discretion of the Judge to allow the party in possession to continue in
such possession on giving security or not, and any continuance in possession
shall be subject to such orders as the Judge may issue touching inventories, or
the securing of deeds or other effects.
197. Prohibition of exercise of certain powers by curators.
–
(1) Where a certificate has been granted under
Part X or under the Succession Certificate Act, 1889, (7 of 1889)1 or a grant of probate or letters of
administration has been made, a curator appointed under this Part shall not
exercise any authority lawfully belonging to the holder of the certificate or
to the executor or administrator.
(2) Payment of debts, etc., to curator. – All
persons who have paid debts or rents to a curator authorised by a Court to
receive them shall be indemnified, and the curator shall be responsible for the
payment thereof to the person who has obtained the certificate, probate or
letters or administration, as the case may be.
1. Repealed partly by
Act 39 of 1925, Sec. 392 and Schedule. IX and finally by Act 1 of 1938.
198. Curator to give security and may receive remuneration.
–
(1) The
District Judge shall take from the Curator security for the faithful discharge
of his trust, and for rendering satisfactory accounts of the same as
hereinafter provided, and may authorise him to receive out of the property such
remuneration, in no case exceeding five per centum on the movable property and
on the annual profits of the immovable property, as the District Judge thinks
reasonable.
(2) All surplus money realized by the curator
shall be paid into Court, and invested in public securities for the benefit of
the persons entitled thereto upon adjudication of the summary proceeding.
(3) Security shall be required from the
curator with all reasonable dispatch, and, where it is practicable, shall be
taken generally to answer all cases for which the person may be afterwards
appointed curator; but no delay in the taking of security shall prevent the
Judge from immediately investing the curator with the powers of his office.
199. Report from Collector where
estate includes revenue-paying land. –
(1) Where the estate of the deceased person
consists wholly or in part of land paying revenue to Government, in all matters
regarding the propriety of summoning the party in possession, of appointing a
curator, or of nominating individuals to that appointment, the District Judge
shall demand a report from the Collector, and the Collector shall thereupon
furnish the same: Provided that in cases of urgency the Judge may proceed, in
the first instance, without such report.
(2) The Judge shall not be obliged to act in
conformity with any such report, but in case of his acting otherwise than
according to such report, he shall immediately forward a statement of his
reasons to the High Court, and the High Court, if it is dissatisfied with such
reasons, shall direct the Judge to proceed conformably to the report of the
Collector.
200. Institution and defence of
suits. -The curator shall be subject to all orders of’ the
District judge regarding the institution or the defence of suits, and all suits
may be instituted or defended in the name of the curator on behalf of the
estate: Provided that an express authority shall be requisite in the order of
the curator’s appointment for the collection of debts or rents; but such
express authority shall enable the curator to give a full acquaintance for any
sums of money received by virtue thereof.
201. Allowances to apparent owners
pending custody by curator.- Pending the custody of the
property by the curator, the District Judge may make such allowances to parties having a prima facie right thereto as upon a
summary investigation of the rights and circumstances of the parties interested
he considers necessary, and may, at his discretion, take security for the
repayment thereof with interest, in the event of the party being found, upon
the adjudication of the summary proceeding, not to he entitled thereto.
202. Accounts to be filled by
curator.-The curator shall file monthly accounts in
abstract, and shall, on the expiry of each period of three months, if his
administration lasts so long, and, upon giving up the possession of the property, file
a detailed account of his administration to the satisfaction of the District
Judge.
203. Inspection of accounts and right
of interested party to keep duplicate. –
(1) The accounts of the curator shall be open
to the inspection of all parties interested; and it shall be competent for any
such interested party to appoint a separate person to keep a duplicate account
of all receipts and payments by the curator.
(2) If it is found that the accounts of the
curator are in arrear, 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 shall be punishable with fine not exceeding one thousand rupees for
every such default.
204. Bar to appointment of second
curator for same property. -If the Judge of any district
has appointed a curator, in respect of the whole of the property of a deceased
person, such appointment shall preclude the Judge of any other district within the
same State from appointing any other curator, but the appointment of a curator
in respect of a portion of the property of the deceased shall not preclude the
appointment within the State of another curator in respect of the residue or
any portion thereof:
Provided that no Judge shall
appoint a curator or entertain a summary proceeding in respect of property
which is the subject of a summary proceeding previously instituted under this
Part before another Judge : ‘Provided, further, that if two or more curators
are appointed by different Judges for several parts of an estate, the High
Court may make such order as it thinks fit for the appointment of one curator
of the whole property.
205. Limitation of time application
for curator. -An application under this Part to the District Judge must be made
within six months of the death of the proprietor whose property is claimed, by
right in succession.
206. Bar to enforcement of Part
against public settlement or legal directions by deceased, --Nothing in this Part shall be deemed to authorise the contravention of
any public act of settlement or of any legal directions given by a deceased
proprietor of any property for the possession of his property after his decease
in the event of minority or otherwise, and, in every such case, as soon as the
Judge having jurisdiction over the property of a deceased person is satisfied
of the existence of such directions, he shall give effect thereto.
207. Court of Wards to be made curator
in case of minors having property subject to its jurisdiction -Nothing
in this Part shall be deemed to authorise any disturbance of the possession of
a Court of Wards of any property; and in case a minor, or other disqualified
person whose property is subject to the Court of Wards, is the party on whose
behalf application is made under this Part, the District Judge, if he
determines to summon the party in possession and to appoint a curator, shall
invest the Court of Wards with the curator ship of the estate pending the
proceeding without taking security as aforesaid; and if the minor or other
disqualified person, upon the adjudication of the summary proceeding, appears
to be entitled to the property, possession shall be delivered to the Court of
Wards.
208. Saving of right to bring suit. - Nothing contained in this Part shall be any impediment to the bringing
of a suit
either by the party whose application may have been rejected before or after
the summoning of the party in possession, or by the party who may have been
evicted from the possession under this Part.
209. Effect of decision of summary
proceeding. -The decision of a District
Judge in a summary proceeding under this Part shall have no other effect than
that of settling the actual possession; but for this purpose it shall be final,
and shall not be subject to any appeal or review.
210. Appointment of public curators. -The
1[State Government] may appoint public
curators for any district or number of districts; and the District Judge having
jurisdiction shall nominate such public curators in all cases where the choice
of a curator is left discretionary with him under this Part.
1. Subs. by the
A.L.O.1950, for “Provincial Government” (w.e.f. 26th January, 1950).
PART VIII
REPRESENTATIVE TITLE TO PROPERTY OF DECEASED ON
SUCCESSION
211. Character and property of
executor or administrator as such.
(1) The executor or administrator, as the case
may be, of a deceased person is his legal representative for all purposes, and
all the property of the deceased person vests in him as such.
(2) When the deceased was a Hindu,
Muhammadan, Buddhist, Sikh, 1[Jaina or
Parsi] or an exempted person, nothing herein contained shall vest in, an
executor or administrator any property of the deceased person, which would
otherwise have passed by survivorship to some other person.
1. Subs. by Act 16 of
1962, Sec. 2, for “or Jaina” (w.e.f. 30th March, 1962).
212. Right to intestate’s property.
-
(1)
No right to any part of the property of a person who has died intestate can be
established in any court of Justice, unless letters of administration have
first been granted by a Court of competent jurisdiction.
(2) This
section shall not apply in the case of intestacy of a Hindu, Muhammad An,
Buddhist, Sikh or Jaina, 1[Indian
Christian or Parsi.]
1.
Subs. by Act 16 of 1962, Sec.3,
“for the Indian Christian’ (w.e.f. 30th march, 1962).
213. Right as an executor or legatee
when established. -
(1) No right as executor or legatee can be
established in an any Court of
justice, unless a court of competent jurisdiction in 1[India] has granted probate of the will under
which the right is claimed, or has granted letters or administration with
the will or with the copy of an authenticated copy of the will annexed.
2[(2)
The section shall not apply in the case
of wills made by Muhammadans, and shall only apply----
(i) In
the case of wills made by any Hindu, Buddhist, Sikh, or Jaina where such wills
are of classes specified by clauses (a)
and (b) of section 57; and
(ii) In the case of wills made by any Parsi
dying, after the commencement of Indian Succession (Amendment) Act, 1962, (16
of 1962) where such wills are made within the local limits of the 3[ordinary original civil Jurisdiction] of the
High Courts at Calcutta, Madras and Bombay, and where such wills are made
outside those limits, in so far as they relate to immovable property situate
within those limits.]
1
Subs.
by Act 3 of 1951, sec. 3 and Schedule, for “the States”(w.e.f. 1st
April, 1951).
2. Subs. by Act 16 of
1962,Sec.4, for sub-section (2) (w.e.f. 30th March, 1962).
3. Subs. by Act 52 of
1964, Sec. 3 and Sch. II, for “ordinary civil jurisdiction”(w.e.f. 29th
December, 1964).
(1) No Court shall-----
(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 claiming of,
-
(i) A probate or letters of administration
evidencing the grant to him of administration to the estate of the deceased of
or
(ii) A certificate granted under Sec. 31 or
Section 32 of the Administrator General’s Act 1913 (3 of 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 (7 of 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.
(2) The word “debt” sub-section (1) includes
and debt except rent, revenue or profits payable in respect of land used for
agricultural purposes.
215. Effect on certificate of
subsequent probate or letters of administration. -
(1) A grant of probate of letters of
administrations in respect of estate shall be deemed to supersede any
certificate previously granted under Part X or under the Succession Certificate
Act, 1889 (7 of 1889) or Bombay regulation No.VIII of 1827, in respect of any
debts or securities included in the estate.
(2) When at the time of grants of the
probate or letters any suit or other Proceedings instituted by the holder of
any such debt or security is pending, the person to whom the grant is made
shall on applying to the court in which the suit or proceeding is pending, be
entitled to take the place of the holder of certificate in the suit or
proceeding:
Provided that, when any
certificate is superseded under this section, all payment made to the holder of
such certificate in ignorance of such super session shall be b good against
claims under the probate or letters of administration.
216. Grantee of probate or administration
alone to sue, etc. until it revoked. After any grant of probate or letters of
administration, no other than the person to who the same may have been granted
shall have power to sue or prosecute any suit, otherwise act as representative
of the deceased, throughout the State in which the as may have been granted,
unit such probate or letters of administration has or have be recalled or
revoked.
PART IX
PROBATE, LETTERS OF ADMINISTRATION AND ADMINISTRATION OFA SETS OF DECEASED
217. Application of part. -Save as otherwise provided by this Act or by any other law or the time
being in force, all grants of probate and letters of administration with the
will annexed and the administration of the assets of the deceased in cases of intestate
succession shall be made or carried out, as the case may be, in accordance with the Provisions of this Part.
CHAPTER I
OF GRANT OF
PROBATE AND LETTERS OF ADMINISTRATION
(1) If
the deceased has died intestate and was a Hindu, Muhammadans, Buddhist, Sikh or
Jaina or an exempted person, administration of his estate may be granted to any
person who, according to the rules for the distribution of the estate
applicable in the case of such deceased, would be entitled to the whole or any
part of such deceased’s estate.
(2) When several such persons apply for such
administration, it shall be in the discretion of the Court to grant it to any
one or more of them.
(3) When no such person applies, it may be
granted to a creditor of the deceased.
219. Where deceased is not a Hindu,
Muhammadans, Buddhist, Sikh, Jaina or
exempted Person. -If the deceased has died
intestate and was not a person belonging to any of the classes referred to in Sec. 218, those who are connected with
him, either by marriage or by consanguinity are entitles to obtain letters of
administration of his estate and effects in the order and according to the
rules hereinafter stated, namely: -
(a) If the deceased has left a widow,
administration on shall be granted to the widow, unless the Court sees cause to
exclude her, either on the ground of some personal disqualification, or because
she has no interest in the estate of the deceased.
Illustrations
(i) The widow is a lunatic or has committed
adultery of has been barred by her 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) If the Judge thinks proper, he may
associate any person or persons with the widow in the administration who would
be entitled solely to the administration if there were no widow.
(c) If
there is no widow, or if the Court sees cause to exclude the widow, it shall
commit the administration to the person or persons who would be beneficially
entitled to the estate according to the rules for the distribution of an
intestate’s estate:
Provided that, when the
mother of the deceased is one of the class of persons so entitled, she shall be
solely entitled to administration.
(d) Those who stand in equal degree of
kindred to the deceased are equally entitled to administration.
(e) The husband surviving his wife has the
same right of administration of her estate as the widow has in respect of the
estate of her husband.
(f) When there is no person connected with
the deceased by marriage or consanguinity who is entitled to letters of
administration and willing to act, they may be granted to a creditor.
(g) Where the deceased has left property in
India, letters of administration shall be granted according to the foregoing
rules, notwithstanding that he had his domicile in a country in which the law
relating to testate and intestate succession differs from the law of 1[India].
1. Subs. by Act 3 of
1951, Sec. 3 Schedule, for “the States” (w.e.f. 1st April, 1951).
220. Effect of letters of
administration. - 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
221. Acts not validated by
administration. -Letters of administration not render valid any intermediate acts of the
administrator tending to the diminution or damage of the intestate’s estate.
222. Probate only to appointed
executor: -
(1) Probate shall be granted only to an
executor appointed by the will.
(2) The appointment may be expressed or by
necessary implication.
Illustrations
(i) A wills that C be his executor if B
will not. B is appointed executor by implication.
(ii) A gives legacy to B and several
legacies to other persons, among the rest to his daughter-in-law C, and adds
“but should be 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: “I 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.
223. Persons to whom probate cannot be
granted- Probate cannot be granted to
any person who is a minor or is of unsound mind, 1[nor
to any association of individuals unless it is a company which satisfies the
conditions prescribed by rules to be made by 3[by
notification in the Official Gazette] the 2[State
Government] in this behalf.
1. Added by Act 17 of
1931, Sec. 2, The words “nor, unless the deceased was a Hindu, Mohammedan,,
Buddhist, Sikh or Jaina or an exempted person, to a married woman without the
previous consent of her husband” which originally occurred at the end of this
section had been omitted by Act 18 of 1927, Sec. 2.
2. Added by Act 20 of
1983, Sec. Sl. No. 17 (w.e.f. 15th March, 1984).
3. The words “G-G in C”
has been successively substituted by the A.O. 1937 and the A.L.O. 1950 to read
as above (w.e.f. 26th January, 1950).
224. Grant of probate to several
executors simultaneously or at different times. - When several executors are appointed, probate may be granted to them
all simultaneously
or at different times.
Illustration
A is an executor of B’s will
by express appointment and C an executor of it by implication. Probate may be granted to A and C at the
same time or to A first and then to C, or to C first and then to A.s
225. Separate probate of codicil
discovered after grant of probate: -
(1) If I codicil is discovered after the grant
of probate, a separate probate of that codicil may he granted to the executor,
if it in no way repeals the appointment of executors made by the will.
(2) If different executors are appointed by
the codicil, the probate of the will shall be revoked, and a new probate
granted of the will and the codicil together.
226. Accrual of representation to
surviving executor. - When probate has been
granted to several executors, and one of them dies, the entire representation of
the testator accrues to the surviving executor or executors.
227. Effect of probate. -Probate of a will when granted establishes the will from the death of the
testator, and renders valid all intermediate acts of the executor as such.
228. Administration, with copy annexed, of authenticated copy of will
proved abroad. -When a will has been proved
and deposited in a Court of competent jurisdiction situated beyond the limits
of the 1[India], and a properly
authenticated copy of will is produced, letter a of administration may be
granted with a copy of such copy annexed.
1. Subs. by the A. L.O, 1950, for “His
Majesty’s dominions” (w.e.f. 26th January, 1950).
229. Grant of administration where
executor has not renounced. - When a, person appointed
an executor has not renounced the executorships, letters of administration
shall not be granted to any other person until a citation has been issued, calling
upon the executor to accept or renounce his executorships:
Provided that, when one or
more of several executors have proved a will the Court may, on the death of the
survivor of those who had proved, grant letters of administration without
citing those who have not proved.
230. Form and effect of renunciation
of executor ship. -The renunciation may he
made orally in the presence of the Judge, or by a writing signed by the person
renouncing, and when made shall preclude him from ever thereafter applying for
probate of the will appointing firm executor.
231. Procedure where executor
renounces or fails to accept within time limited. - If an executor renounces, or fails to accept an executorships within, the
time limited for the acceptance or refusal thereof, the will may be provided
letters of’ administration, With a copy of the will annexed, may be granted to the person who
would he entitled to administration is case of intestacy.
232. Grant of administration to
universal or residuary legatees. – When-
(a) The deceased has made a will, but has not
appointed an executor, or
(b) The deceased has appointed an executor
who is legally incapable or refuses to act, or who has died before the testator
or before he his proved the will, or
(c) The executor dies after having proved the
will but before he has administered all the estate of the deceased, an
universal residuary legatee may be admitted to prove the will, and letters of
administration with the will annexed may be granted to him of the whole estate.
or of so much hereof as may be unadministered.
233. Right to administration of
representative of deceased residuary legatee. When a residuary legatee who has a beneficial interest Survives the
testator, but dies before the estate has been fully administered, his
representative has the same right to administration with the will annexed as
such residuary legatee.
234. Grant of administration where no
executor, nor residuary legatee nor representative of such legatee.-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, the person or persons who would be entitled to the administration of the
estate of the deceased if he had died intestate, or any other legatee having a
beneficial interest, or a creditor, may be admitted to prove the will, and
letters of administration may be granted to him or them accordingly.
235. Citation before grant of
administration to legatee other than universal or residuary. -Letters of administration with the will annexed shall not be granted to
any legatee other than an universal or a residuary legatee, until a citation has been
issued published in the manner hereinafter mentioned, calling on the
next-of-kin to accept of refuse letters of administration.
236. To whom administration may
not be granted. -Letters of administration
cannot be granted to any person who is a minor or is of unsound mind, 1[nor to any association of individuals unless it is a company,
which satisfies the conditions prescribed by rules to be made 2[by notification in the Official Gazetted] by the
3[State Government in this behalf].
1. Added by Act 17 of
1931, Sec. 2. The words “nor unless the deceased was a Hindu, Mohammedan,
Buddhist, Sikh or Jaina or an exempted person, to a married woman without the
previous consent of her husband which originally occurred at the end of this
section had been omitted by Act 18 of 1927, Sec. 2.
2. Added by the Act 20
of 1983, Schedule. Sl. No. 17 (w.e.f. 15th March, 1984).
3. The words “G.G. in
C.” have been successively subs. by the A.O 1937 and the A.L.O.1950 to read as
above.
1[236-A. Laying of rules before State
Legislature. - Every rule made by the State Government under Secs. 223
and 236 shall be laid, as soon as it is made. before the State Legislature,]
1. Ins. by Act 20 of 1983,
Sch. Sl. No. 17 (w.e.f. 15th March, 1984).
CHAPTER II
OF LIMITED
GRANTS
Grants limited
in duration
237. Probate of copy or draft of lost
will. -When will has been lost or mislaid since the
testator’s death, or 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 or draft, limited until the original or a
properly authenticated copy of it is produced.
238. Probate of contents of lost or
destroyed will. -When has been lost or destroyed and no copy has been made nor the draft
preserved, probate may be granted of its contents if they can be established by
evidence.
239. Probate of copy where original
exists. -When
the will is in the possession of’ a person residing out of the State in which
application for probate is made, who has refused or neglected to deliver it up,
but a copy has been transmitted to the executor, and it is necessary for the
interests of the estate 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.
240. Administration until will
produced. -Where no will of the deceased 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 all authenticated copy
of it is produced.
Grants for the
use and benefit of others having right
241. Administration, with will
annexed, to attorney of absent executor. -When
any executor is absent from the 1[State]
in which application is made, and there is no executor within the 1[State] willing to act, letters of
administration, with the will annexed,, may be granted to the attorney or agent
of the absent executor, for the use in benefit of his principal, limited until
he shall obtain probate or letters of administration granted to himself.
1. Subs. by the A.L.O. 1950, for
“Province” (w.e.f. 26th January, 1950).
242. Administration, with will
annexed, to attorney of absent person who, if present, would be entitled to
administer. -When
any person to whom, if present, letters of administration, with the will
annexed, might be granted is absent from the 1[State]
letters of administration, with the will annexed, may be granted to his
attorney or agent, limited as mentioned in Section 241.
1. Subs. by the A.L.O. 1950, for
“Province” (w.e.f. 26th January, 1950).
243. Administration to attorney of
absent person entitled to administer in case of intestacy. -When a person entitled to administration in case of intestacy is
absent from the 1[State] and no person equally
entitled is willing to act, letters of administration may he granted to the
attorney or agent of the absent person, limited as mentioned in Section 241.
1. Subs. by the A.L.O. 1950, for
“Province” (w.e.f. 26th January, 1950).
244. Administration during minority
of sole executor or residuary legatee. –When a minor is
sole executor or sole residuary legatee, letters of administration, with the
will annexed, may be granted to the legal guardian of such minor or to such
other person as the Court may think fit until the minor has attained his majority at which
period, and not before, probate of the will shall be granted to him.
245. Administration during
minority of several executors or residuary legatee. When there are two or more minor executors and no executor who has
attained majority, or two or more residuary legatees and no residuary legatee
who has attained majority, the grant shall be limited until one of them shall
have attained his majority.
246. Administration for use and
benefit of lunatic or minor. -If a sole executor or a
sole universal or residuary legatee, or a person who would be solely entitled
to the estate of the intestate according to the rule for the distribution of
intestate’s estates applicable in the case of the deceased, is a minor or
lunatic, letters of administration, with or without the will annexed, as the
case may be, shall be granted to the person to whom the care of his estate has
been committed by competent authority, or, if, there is no such person, to such
other person as the Court may think fit to appoint, for the use and benefit of
the minor or lunatic until he attains majority or becomes of sound mind, as the
case may be.
247.
Administration pendente lite. -Pending any suit touching the validity of the will of a deceased person
or for
obtaining or revoking any probate or any grant of letters of administration, the
Court may appoint an administrator of the estate of such deceased person, who
shall have all the rights and powers of a general administrator, other than the
right of distributing such estate, and every such administrator shall be
subject to the immediate control of the Court and shall act under its
direction,
Grants for
special purposes
248. Probate limited to purpose
specified in will. - If an executor is appointed
for any limited purpose specified in the will, the probate shall be limited to that purpose,
and if he should appoint an attorney or agent to take administration on his
behalf, the letters of administration, with the will annexed, shall be limited
accordingly.
249. Administration, with will annexed, limited to particular purpose.- 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, the letters of administration, with the will annexed, shall
be limited accordingly.
250. Administration limited to
property in which person has beneficial interest: -Where a person dies, leaving property of which he was the sole or
surviving trustee, or in which he had no beneficial interest on his own
account, and leaves no general representative, or one who is unable or
unwilling to act as such letters of administration, limited to such property,
may be granted to the beneficiary, or to some other person on his behalf.
251. Administration limited to
suit-
When it is
necessary that the representative of a person deceased be made a party to a
pending suit, and the executor or person entitled to administration 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, or in any other cause or suit which may be commenced in the same
or in any other Court between the parties, or any other parties, touching the
matters at issue in the said cause or suit, and until a final decree shall be
made therein and carried into c6mplete execution.
252. Administration limited to purpose of becoming party to suit to be brought against administrator. - If, at the expiration of twelve months from the date of any probate or letters of administration, the executor or administrator to whom the same has been granted is absent from the 1[State] within which the Court which has granted the probate or letters of administration exercises jurisdiction, the Court may grant, to any person whom it may think fit, letters of administration limited to the purpose or becoming and being made a party to a suit to be brought against the executor coming and being made a party to a suit to be brought against the executor or administrator, and carrying the decree which may be made therein into effect.
1. Subs. by the A.L.O., 1950, for
“Province” (w.e.f. 26th January, 1950).
253. Administration
limited to collection and preservation of deceased’s property. -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 situate 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 discharge for debts due to his estate, subject to the directions of the
Court.
(1) 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, at the time of the death of such person, resident out of
the 1[State], and it appears to the Court
to be necessary or convenient to appoint some person to administer the estate
or any part thereof, other than the person who, in ordinary circumstances,
would be entitled to a grant of administration, 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.
(2) In every such case letters of
administration may be limited or not as the Court thinks fit
1. Subs. by the A.L.O.
1950 for “Province” (w.e.f. 26th January, (1950).
Grants with exceptions
255. Probate or administration, with will
annexed, subject to exception. -Whenever the nature of the
case requires that an exception be made, probate of a will, or letters of
administration with the will annexed, shall be granted subject to such
exception.
256. Administration with
exception. -Whenever the nature of the
case requires that an exception be made, letters of administration shall be
granted subject to such exception.
Grants of the rest
257. Probate or administration
of rest. -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 as the case may be, of the rest of the
deceased’s estate.
Grant of effects
unadministered
258. Grant of effects
unadministered. -If
an executor to whom probate has been granted 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.
259. Rules as to grants of effects
unadministered. -
In granting letters of administration of an estate not fully administered, the
Court shall be guided by the same rules as apply to original grants, and shall
grant letters of administration to those persons only to whom original grants might have been made.
260. Administration when
limited grants expired and still some part of estate Unadministered. -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 shall be granted to those persons to whom original grants might have been made.
Chapter III
Alteration and Revocation of Grants
261.
What errors may be rectified by Court: -Errors in names and
descriptions, or in setting. Forth the Court may rectify the time and place of
the deceased’s death, or the purpose in a limited grant, and the grant of
probate or letters of administration may be altered and amended accordingly.
262. Procedure where codicil
discovered after grant of administration with will annexed: -lf,
after the grant of letters of administration with the will annexed, a codicil
is discovered, it may be added to the grant on due proof and identification,
and the grant may be altered and amended accordingly.
263. Revocation or annulment
for just cause. -The
grant of probate or letters of administration may be revoked or annulled for
just cause.
Explanation. -Just cause shall be deemed to exist where-
(a) The proceedings to obtain the grant were
defective in substance; 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 become useless and inoperative
through circumstances; or
(e) The person to whom the grant was made has
willfully and without reasonable cause omitted to exhibit an inventory or
account in accordance with the provisions of Chapter VII of this part, or has
exhibited under that Chapter an inventory or account which is untrue in a
material respect.
Illustrations
(i) The Court who dies made grant 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 lie had died intestate, but a will has since been discovered.
(vi) Since probate was granted, a letter will
have been discovered.
(vii) Since probate was granted, a codicil has
been discovered which revokes or Adds to the appointment of executors under the
will.
(viii) The person to who probate was, or letters
of administration were, granted has
subsequently become of unsound mind.
CHAPTER IV
OF THE PRACTICE IN GRANTING
AND REVOKING PROBATE AND LETTERS OF ADMINISTRATION
264. Jurisdiction of District
Judge in granting and revoking probates, etc: -
(1) The
District Judge shall have jurisdiction in granting and revoking probates and
letters of administration in all cases within his district.
(2) Except in cases to which Section 57
applies, no Court in any local area beyond the limits of the towns of
Calcutta,, Madras and Bombay1[***] shall,
where the deceased is a Hindu, Muhammadans, Buddhist, Sikh or Jaina or an
exempted person, receive applications for probate or letters of administration
until the 2[State Government] has, by a
notification in the 3[Official Gazette],
authorised it so to do.
1. The words “and the Provinces of Burma”
omitted by the A.L.O.1937.
2.
Subs. by ibid., for “Local
Government”.
3.
Subs. by ibid., for “Local
Official Gazette”.
265. Power
to appoint delegate of District Judge to deal with non-contentious case: -
(1) The High Court may appoint such judicial
officers within any district as it thinks fit to act for the District Judge as
delegates to grant probate and letters of administration in non-contentious
cases, within such local limits as it may prescribe: Provided that, in the case
of High Courts not established by Royal Charter, Such appointments shall not be
without the previous sanction of the State Government.
(2) Persons so appointed shall be called
“District Delegates”.
266.
District Judge’s powers as to grant
of probate and letters of administration. -- The District Judge shall have
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.
267.
District Judge may order person to
produce testamentary papers. –
(1) The District Judges 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.
(2) If it is not shown that any such paper
or writing is in, the possession or under the control of such person, but there
is reason to believe that he has the knowledge of any such paper or writing the
Court may direct such person to attend for the purpose of’ being examined
respecting the same.
(3) Such person shall be bound to answer
truly such questions as may he put to him) by the Court, and, if so ordered, to
produce and bring in such paper or writing, laid shall be subject to the like
punishment under the Indian Penal Code, in case (if default it, 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 Fired Iran,
made such default.
(4) The costs of the proceeding shall be in
the discretion of the Judge.
268.
Proceedings of District Judge’s Court
in relation to probate and administration,-The proceedings of the Court of the District Judge in relation to the
granting of probate and letters of administration shall, save as hereinafter
otherwise provided, be regulated, so far as the circumstances of the case
permit, by the Code of Civil Procedure, 1908.
269. When and how District
Judge to interfere for protection of property: -
(1) Until probate is granted of the will of a
deceased person, or an administrator of his estate is constituted the District
Judge, within whose jurisdiction any part of the property of the deceased
person is situate, is authorised and required to interfere for the protection
of such property at the instance of any person claiming to be interested
therein, and in all other cases where the Judge considers that the property
incurs any risk of loss or damage; and for that purpose, if he thinks fit, to
appoint an officer to take and keep possession of the property.
(2) This section shall not apply when the
deceased is a Hindu, Muhammadans, Buddhists, Sikh or Jaina or an exempted
person, nor shall it apply to any part of the property of an Indian Christian
who has died intestate.
270. When probate or letters of
administration may be granted by District Judge: - Probate
of the will or letters of administration to the estate of a deceased person may
be granted by a District Judge under the seal of his Court, if it appears by a
petition, verified as hereinafter provided, of the person applying for the same
that the testator or intestate, as the case may be, at the time of his decease
had a fixed place of abode, or any property, movable or immovable, within the jurisdiction
of the Judge.
271.
Disposal of application made to Judge
of district in which deceased had no fixed abode.
-When the application is made to the Judge of a district in which the deceased
had no fixed abode at the time of his death, it shall be in the discretion of
the Judge to refuse the application, if in his judgment it could be disposed of
more justly or conveniently in another district, or, where the application is
for letters of administration, to grant them absolutely, or limited to the property
within his own jurisdiction.
272. Probate and letters of
administration may be granted by Delegate. -Probate and letters of
administration may, upon application for that purpose to any District Delegate,
be granted by him in any case in which there is no contention, if it appears by
petition, verified as hereinafter provided, that the testator or intestate, as
the case may be, at the time of his death had a fixed place of abode within the
jurisdiction of such Delegate.
273. Conclusiveness of probate
or letters of administration. -Probate or letters of administration shall have
effect over all the property and estate, movable or immovable, of the deceased,
throughout the State in which the same is or are granted; and shall be
conclusive as to the representative title against all debtors of the deceased,
and all persons holding property which belongs to him, and shall 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;
Provided that probates and
letters of administration granted-
(a) By a High Court, or –
(b) By a District Judge, where the deceased
at the time of his death had a fixed place of abode situate within the
jurisdiction of such Judge, and such Judge certifies that the value of the
property and estate affected beyond the limits of the State does not exceed ten
thousand rupees.
Shall,
unless otherwise directed by the grant, have like effect throughout 1[the other State]2{***}
3[The proviso to this section
shall apply in 4[India] 5[after the separation of Burma and Aden from
India] to probates and letters of administration granted in Burma and Aden
before the date of the separation, or after that date in proceedings which were
pending at that date.
6[The proviso shall also
apply in 4[India] 7[***] 8[after
the separation of Pakistan from India] to probates and letters of
administration granted before the date of the separation, or after that date in
proceedings pending at that date, in any of the territories which on that date
constituted Pakistan.]
1. Subs. by the A.L.O.
1948, for “the whole of British India”
2. The words “of India”
omitted by the A.L.O. 1950. (w.e.f. 26th January, 1950)
3. Ins. by the A.L.O.
1937.
4. Subs. by Act 3 of
1951, Sec. 3 and Schedule for “the State” (w.e.f. 1st April, 1951).
5. 1st April,
1937.
6. Added by A.O.1948.
7. The words “of India”
omitted by Act 42 of 1953, Sec. 4 and Sch.
III.
8. 15th
August, 1947.
274. Transmission to High
Courts of certificate of grants under proviso to Section 273. -
(1) Where probate or letters of administration
has or have been granted by a High Court or District Judge with the effect
referred to in the proviso to Section 273, the High Court or District Judge
shall send a certificate thereof to the following Courts, namely:-
(a) When the grant has been made by a High
Court, to each of the other High Courts;
(b) When the grant has been made by a
District Judge, to the High Court to which such District Judge is subordinate
and to each of the other High Courts.
(2) Every certificate referred to in
subsection (1) shall be made as nearly as circumstances admit in the form set
forth in Schedule IV, and such certificate shall be filed by the High Court
receiving the same.
(3) Where any portion of the assets has been
stated by the petitioner, as hereinafter provided in Sections 276 and 278, to
be situate within the jurisdiction of a District Judge in another State the
Court required to send the certificate referred to in subsection (1) shall send
a copy thereof to such District Judge, and such copy shall be filed by the
District Judge receiving the same.
275. Conclusiveness of
application for probate or administration if properly made and verified. -The application for probate
or letters of administration, if made and verified in the manner hereinafter
provided, shall be conclusive for the purpose of authorizing the grant of
probate or administration; and no such grant shall be impeached by reason only
that the testator or intestate had no fixed place of abode or no property
within the district at the time of his death, unless by a proceeding to revoke
the grant if obtained by a fraud upon the Court.
(1) Application for probate or for letters of
administration, with the will annexed, shall be made by a petition distinctly
written in English or in the language in ordinary use in proceedings before the
Court in which the application is made, with the will or, in the cases
mentioned in Sections 237, 238 and 239, a copy, draft, or statement of the
contents thereof, annexed, and stating-
(a) The time of the testator’s death,
(b) That the writing annexed is his last
will and testament,
(c) That it was duly executed,
(d) The amount of assets which are likely to
come to the petitioner’s hands, and
(e) When the application is for probate,
that the petitioner is the executor named in the will.
(2) In addition
to these particulars, the petition shall further state, -
(a)- When the application is to the District
Judge, that the deceased at the time of his death had a fixed place of abode,
or had some property, situate within the jurisdiction of the Judge; and
(b) When the application is to a District
Delegate, that the deceased at the time of his death had a fixed place of abode
within the jurisdiction of such Delegate.
(3) Where the application is to the District
Judge and any portion of the assets likely to come to the petitioner’s hands is
situate in another State, the petition shall further state the amount of such
assets in each State and the District Judges within whose jurisdiction such
assets are situate.
277. In what cases translation
of will to be annexed to petition. Verification of translation by person other
than Court translator. -In cases wherein the will,
copy or draft, is written in any language other than English or than that in
ordinary use in proceedings before the Court, there shall be a translation
thereof annexed to the petition by a translator of the Court, if the language
be one for which a translator is appointed; or if the will, copy or draft, is
in any other language, then by any person competent to translate the same, in
which case such translation shall be verified by that person in the following
manner, namely:-
“I (A.B.) do declare that I
read and perfectly understand the language and character of the original and
that the above is a true and accurate translation thereof.”
278.
Petition for letters of
administration: -
(1) Application for letters of administration
shall be made by petition distinctly written as aforesaid and stating-
(a) The time and place of the deceased’s
death;
(b) The family or other relatives of the
deceased and, their respective residences;
(c) The right in which the petitioner
claims;
(d) The amount of assets, which are likely
to come to the petitioner’s lands;
(e) When the application is to the District
Judge, that the deceased at the time of his death had a fixed place of abode,
or had some property, situate within the jurisdiction of, the Judge; and
(f) When the application is to the District
Delegate, that the deceased at the time of his death had a fixed place of abode
within the jurisdiction of such Delegate.
(2) Where the application is to the District
Judge and any portion of the assets likely to come to the petitioner’s hands is
situate in another state the petition shall further state the amount of such
assets in each State and the District Judges within whose jurisdiction such
assets are situates.
(1) Every person applying to any the Courts
mentioned in the proviso to Section 273 for probate of a will or-letters of
administration of an estate intended to have effect throughout 1[India], shall state in his petition, in addition
to the matters respectively required by Section 276 and Section 278, that to
the best of his belief no application has been made to any other Court for a
probate of the same will or for letters of administration of the same estate,
intended to have such effect as last aforesaid or, where any such application has been made, the Court to which it was
made, the person or persons by whom it was made and the proceedings (if any)
had thereon.
(2) The Court to which any such application
is made under the proviso to Section 273 may, if it thinks fit, reject the
same.
1.
Subs. by Act 3 of 1951, Sec. 3
and Schedule for “the State” (w.e.f. 1st April, 1951).
280. Petition
for probate, etc., to be signed and verified. -The petition for probate or
letters of administration shall in all cases be subscribed by the petitioner
and his pleader, if any, and shall be verified by the petitioner in the
following manner, namely: -
“I (A.B.), the
petitioner in the above petition, declare that what is stated therein is true
to the best of my information and belief.”
281.
Verification of petition for probate,
by one Witness to will. -Where the application is for probate, the petition
shall also be verified by at least one of the witnesses to the will (when
procurable) in the manner or to the effect following namely: -
“I (C.D.), one of the
witnesses to the last will and testament of the testator mentioned in the above
petition, declare that I was present and saw the said testator’ affix his
signature (or mark) thereto (or that the said testator acknowledge the writing
annexed to the above petition to be his last will and testament in my
presence)”.
282.
Punishment for false averment in
petition or declaration. -If any petition or
declaration which he hereby required to be verified contains any averment which
the person making the verification knows or believes to be false, such person
shall be deemed to have committed an offence under Section 193 of the Indian
Penal Code.
283.
Powers of District Judge: -
(1) In all cases the District Judge or
District Delegate may, if he thinks proper-
(a) Examine the petitioner in person, upon
oath;
(b) Require further evidence of the due
execution of the will or the right of the petitioner to the letters of
administration, as the case may be;
(c) 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.
(2) The citation shall be fixed up in some
conspicuous part of the courthouse, and also in the office of the Collector of
the district and otherwise published or made known in such manner as the Judge
or District Delegate issuing the same may direct.
(3) Where any portion of the assets has been
stated by the petitioner to be situate within the jurisdiction of a District
Judge in another State the District Judge issuing the same shall cause a copy
of the citation to be sent to such other District Judge, who shall publish the
same in the same manner as if it were a citation issued by himself, and shall
certify such publication to the District Judge who issued the citation.
284.
Caveats against grant of probate or
administration: -
(1) Caveats against the grant of probate or
administration may be lodged with the District Judge or a District Delegate.
(2) Immediately on any caveat being lodged
with any District Delegate, he shall send copy thereof to the District Judge.
(3) Immediately on a caveat being entered
with the District Judge, a copy thereof shall be given to the District
Delegate, if any, within whose Jurisdiction it is alleged the deceased had a
fixed place of abode at the time of his death, and to any other Judge or
District Delegate to whom it may appear to the District Judge expedient to
transmit the same!.
(4) Form of caveat. -The caveat shall be made
as nearly as circumstances admit in the form set forth in Schedule V.
285.
After entry of caveat, no proceeding
taken on petition until after notice to caveator’s.
- Proceeding shall be taken on a petition for probate or letters of
administration after a caveat against the grant thereof has been entered with
the Judge or District Delegate to whom the application has been made or notice
has been given of its entry with some other Delegate, until after such notice
to the person by whom the same has been entered as the Court may think
reasonable,
286.
District Delegate when not to grant
probate or letters of administration. A District Delegate shall
not grant probate or letters of administration in any case in which there is
contention as to the grant, or in which it otherwise appears to him that
probate or letters of administration ought not to be granted in his court.
Explanation. -”Contention” means the
appearance of any one in person, or by his recognized agent, or by a pleader
duly appointed to act on his behalf, to oppose the proceeding,
287.
Power to transmit statement to
District Judge in doubtful cases where no contention,:-In
every case in which there is no contention, but it appears to the District
Delegate doubtful whether the probate or letters of administration should or
should not be granted, or when any question arises in relation to the grant, or
application for the grant, of any probate or letters of administration, the
District Delegate may, if he thinks proper, transmit a statement of the matter
in question to the District Judge, who, may direct the District Delegate to
proceed in the matter of the application, according to such instructions to the
Judge may seem necessary, or may forbid any further proceeding by the District
Delegate in relation to the matter of such application, leaving the party
applying for the grant in question to make application to the Judge.
288.
Procedure where there is contention,
or District Delegate thinks probate or Letters of
administration should, be refused in his Court. -In
every case in which there is contention,
or the District Delegate is of opinion that the probate or letters of
administration should be refused in his Court, the petition, with any documents
which may have been filed therewith, shall be returned to the person by whom
the application was made, in order that the same may be presented to the District
Judge, unless the District Delegate thinks it necessary, for the purposes of
justice, to impound the same, which he is hereby authorised to do; and, in that
case, the same shall be sent by him to the District Judge.
289.
Grant of probate to be under seal of
Court-When it appears to the
District Judge or District Delegate that probate of a will should be granted,
he shall grant the same under the seal of his Court in the form set forth in
Schedule VI.
290.
Grant of letters of administration to
be under seal of Court. -When it appears to the
District Judge or District Delegate that letters of administration to the
estate of person deceased, with or without a copy of the will annexed, should
be granted, he shall grant the same under the seal of his Court in the form set
forth in Schedule VII.
(1) Every person to whom any grant of letters
of administration, other than a grant under Section 241, is committed, shall
give a bond to the District Judge with one or more surety or sureties, engaging
for the due collection, getting in, and administering the estate of the
deceased, which bond shall be in such form as the Judge may, by general or
special order, direct.
(2) When the deceased was a Hindu,
Muhammadans, Buddhists, Sikh or Jaina or an exempted person-
(a) The exception made by sub-section (1) in
respect of a grant under Section 241 shall not operate;
(b) The District Judge may demand a like
bond from any person to whom probate is granted.
292.
Assignment of administration bond. -The Court may, on
application made by petition and on
being satisfied that the engagement of any such bond has not been kept, and
upon such terms as to security, or
providing that the money received be paid into Court, or otherwise, as the
Court may think fit, assign the same to some person, his administrators, who
shall thereupon be entitled to sue on the said bond in his or their own name or
names as if the same had been originally given to him or them instead of to the
Judge of the Court, and shall be entitled to recover thereon, as trustees for
all persons interested, the full amount recoverable in respect of any breach
thereof.
293.
Time for grant of probate and letters
of administration. -No
probate of a will shall be granted until after the expiration of seven clear
days, and no letters of administration shall be granted until after the
expiration of fourteen clear days from the day of the testator or intestate’s
death.
(1) Every District Judge or District
Delegate shall file and preserve all original wills, of which probate or
letters of administration with the will annexed may be granted by him, among
the records of his Court, until some public registry for wills is established.
(2) The State Government shall make
regulations for the preservation and inspection of the wills so filed.
295.
Procedure in contentious cases. -In any case before the
District Judge in which there is contention, the proceeding shall take, as
nearly as may be, the form of a regular suit, according to the provisions of
the Code of Civil Procedure, 1908, in which the petitioner for probate or
letters of administration, as the case may be, shall be the plaintiff, and the
person who has appeared to oppose the grant shall be the defendant.
296.
Surrender of revoked probate or
letters of administration: -
(1) When a grant of probate or letters of
administration is revoked or annulled under this Act, the person to whom the
grant was made shall forthwith deliver up the probate or letters to the Court,
which made the grant.
(2) If such person willfully and without
reasonable cause points so to deliver up the probate or letters, he shall be
punishable with fine which may extend to one thousand rupees, or with
imprisonment for a term which may extend to three months, or with both.
297.
Payment to executor or administrator
before probate or letters of administration revoked.
-When a grant of probate or letters of administration is revoked, all payments
bona fide made to any executor or administrator under such grant before the
revocation thereof shall, notwithstanding such revocation, be a legal discharge
to the person making the same; and the executor or administrator who has acted
under any such revoked grant may retain and reimburse himself in respect of any
payments made by him which the person to whom probate or letters of
administration may afterwards be granted might have lawfully made.
298.
Power to refuse letters of
administration. -Notwithstanding anything
hereinafter contained, it shall, where the deceased was a Muhammadans, Buddhist
or exempted person, or a Hindu, Sikh or Jaina to whom Section 57 does not
apply, he in the discretion of the Court to make an order refusing, for reasons
to be recorded by it in writing, to grant any application for letters of
administration made under this Act.
299.
Appeals from orders of District Judge.
-Every order made by a District Judge by virtue of the powers hereby conferred
upon him shall be subject to appeal to the High Court
in accordance with the provisions of the Code of Civil Procedure,
1908,applicable to appeals.
300. Concurrent jurisdiction
of High Court. –
(1) The High Court shall have concurrent
jurisdiction with the District Judge in the exercise of all the powers hereby
conferred upon the District Judge.
(2) Except in cases to which Section 57
applies, no High Court, in exercise of the concurrent jurisdiction hereby
conferred over any local area beyond the limits of the towns of Calcutta,
Madras and Bombay 1(* * *) shall, where,
the deceased is a Hindu, Muhammadans, Buddhist, Sikh and Jaina or an exempted
person, receive applications for probate or letters of administration until the
State Government has, by a notification in the Official Gazette, authorised- it
so to do.
1.
The words “and the Province of
Burma” omitted by the A.O.1937.
301.
Removal of executor or administrator
and provision for successor. -The High Court may, on application made to it,
suspend, remove or discharge any private executor or administrator and provide
for the succession of another person to the office of any such executor or
administrator who may cease to hold office, and the vesting in such successor
of any property belonging to the estate.
302.
Directions to executor or
administrator. -Where
probate or letters of administration in respect of any estate has or have been
granted under this Act, the High Court may, on application made to it, give to
the executor or administrator any general or special directions in regard to
the estate or in regard to the administration thereof.
CHAPTER V
OF EXECUTORS OF
THERE OWN WRONG
303.
Executor of his own wrong. -A person who intermeddles
with the estate of the deceased, or does any other act that belongs to the
office of executor, while there is no rightful executor or administrator in
existence, thereby makes him all executor of his own wrong.
Exceptions.
-
(1) Intermeddling with the goods of the
deceased for the purpose of preserving them or providing for his funeral or for
the immediate necessities of his family or property, does not make an executor
of his own wrong.
(2) Dealing in the ordinary course of
business with goods of the deceased received from another does not make an
executor of his own wrong.
Illustrations
(i) A uses 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 life, time 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 won 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
won wrong.
304.
Liability of executor of his own
wrong. -When a person has so acted
as to become an executor of his own wrong, he is answerable to the rightful
executor or administrator, or to any creditor or legatee of the deceased, to
the extent of the assets which may have come to his hands after deducting
payments made to the rightful executor or administrator, and payments made in
due course of administration.
CHAPTER VI
OF THE POWERS OF
AN EXECUTOR OR ADMINISTRATOR
305.
In respect of causes of action
surviving deceased and debts due at death. Ali executor or
administrator 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.
306.
Dent ands and rights of action of, or
against deceased survive to and against executor or administrator. -All demands whatsoever and
all right to prosecute or defend any action or special proceeding existing in
favour of or against a person at the time of his decease, survive to and
against his executors or administrators; except causes of action for
defamation, assault, as defined in the Indian Penal Code, or other personal
injuries not causing the, death of the party; and except also cases where,
after the death of the party, the relief sought could not be enjoyed or
granting it would be nugatory.
Illustrations
(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.
307.
Power of executor or administrator to
dispose of property. -
(1) Subject to the provisions of sub-section.
(2) An
executor or administrator has power to dispose of the property of the deceased,
vested in him under Section 211 either wholly or in part, in such manner as he
may think fit.
Illustrations
(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 immovable estate of the deceased. The mortgage is valid.
(2) If the deceased was a Hindu,
Muhammadans, Buddhist, Sikh or Jaina or an exempted person, the general power
conferred by sub- section (1) shall be subject to the following restrictions
and conditions, namely: -
(i) The power of an executor to dispose of
immovable property so vested in him is subject to any restriction which may be
imposed in his behalf by the will appointing him, unless probate has been
grunted to him and the Court which granted the probate permits him by an order
in writing,
Notwithstanding the
restriction, to dispose of any immovable property specified in the- order in a
manner permitted by the order.
(ii) An administrator may not, without the
previous permission of the Court by which the letters of administration were
granted-
(a) Mortgage, charge or transfer by sale,
gift, exchange or otherwise any immovable property for the type being vested in
him under Section 211, or
(b) Lease any such property for a term
exceeding five years.
(iii) A disposal of property by an executor or
administrator in contravention of clause (i) or clause (ii), as the case may
be, able at the instance of any other person interested in the property.
(3) Before any probate or letters of
administration is or are granted in such a case, there shall be endorsed
thereon or annexed thereto a copy of sub-section (1) and clauses (i) and (iii)
subsection (2) or of sub-section (1) and clauses (ii) and (iii) of subsection
(2), as the case may be.
(4) A probate or letters of administration
shall not be rendered invalid by reason of the endorsement or annexure required
by sub- section (3) not having been made thereon or attached thereto, nor shall
the absence of such an endorsement or annex the authorised an executor or
administrator to act otherwise than in accordance with the provisions of this
section.
308.
General powers of administration. -An executor or administrator
may, in addition to, and not in derogation
of, any other powers of expenditure lawfully exercisable by him, incur
expenditure-
(a) On such acts as may be necessary for the
proper care or management of any property belonging to any estate administered
by him, and
(b) With the sanction of the High Court, on
such religious, charitable and other objects, and on such improvements, as may
be reasonable and proper in the case of such property.
309. Commission or agency charges. -An executor or administrator
shall not be entitled to receive or retain any commission or agency charges at
a higher rate than that for the time being fixed in respect of the
Administrator-General by or under the Administrator-General’s Act, 1913.
310. Purchase by executor or
administrator of deceased’s property. -If any executor or administrator purchases, either
directly or indirectly, any part of the property of the deceased, the sale is
voidable at the instance of any other person interested in the property sold.
311. Powers
of several executors or administrators exercisable by one. -W hen 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.
Illustrations
(i) One
of several executors has power to release a debt due to the deceased.
(ii) One
has power to surrender a lease.
(iii) One has power to sell the property of
the deceased whether movable or immovable.
(iv) One has power to assent to a legacy.
(v) One has power to endorse a promissory
note payable to the deceased.
(vi) One will appoints A, B, C and D to be
executors, and directs that two of them shall be a quorum. A single executor can do no act.
312.
Survival of powers on death of one of
several executors or administrators: -Upon the
death of one or more of several executors or administrators, in the absence of
any direction to contrary in the will or grant of letters of administration,
all the powers of the office become vested in the survivor.
313.
Powers of administrator of effects
unadministered. -The
administrator of effects unadministered has, with respect to such effects, the
same powers as the original executor or administrator.
314.
Powers of administrator during
minority. -An administrator during minority has all the powers of an ordinary administrator.
315.
Powers of married executrix or
administrator. -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.
CHAPTER VII
OF THE DUTIES OF
AN EXECUTOR OR ADMINISTRATOR
316.
As to deceased’s funeral. -It is the duty of an
executor to provide funds for the performance of the necessary funeral
ceremonies of the deceased in manner suitable to his condition, if he has left
property sufficient for the purpose.
(1) An executor or administrator shall,
within six months from the grant of probate or letters of administration, or
within such further time as the Court which granted the probate or letters may
appoint, exhibit in that Court an inventory containing a full and true estimate
of all the property in possession, and all the credits, and also all the debts
owing by any person to which the executor or administrator is entitled in that
character; and shall in like manner, within one year from the grant of within
such further time as the said Court may appoint, exhibit an account of the
estate, showing the assets which have come to his hands and the manner in which
they have been applied or disposed of.
(2) The High Court may prescribe the form in
which an inventory or account under this section is to be exhibited.
(3) If an executor or administrator, on being
required by the Court to exhibit an inventory or account under this section,
intentionally omits to comply with the requisition, he shall be deemed to have
committed an offence under Section 176 of the Indian Penal Code.
(4) The exhibition of an intentionally false
inventory or account under this
section shall be deemed to be an offence under Section 193 of that Code.
318.
Inventory to include property in any
part of Indian in certain cases:-In all cases where a grant
has been made of probate or letters of administration intended to have effect
throughout 1[India], 2[* * *] the executor or administrator shall
include in the inventory of the effects of the deceased all his movable and
immovable property situate in 3[India]
and the value of such property situate in each State shall be separately stated
in such inventory, and the probate or letters of administration shall be
chargeable with a fee corresponding to the entire amount or value of the
property effected thereby whosesoever situate within 3[India].
1. Subs. by Act. 3 of
1951, Sec. 3 and Schedule, for “the State” (w.e.f. 1st April, 1951).
2. The words “of India”
omitted by Act 48 of 1952, Sec. 3 and Schedule II (w.e.f. 2nd
August, 1952).
3. Subs. by Act 3 of
1951, Sec. 3 and Schedule, for “the State” (w.e.f. 1st April, 1951).
319. As to
property of, and debts owing to deceased. -The executor or
administrator collects, with reasonable diligence, the property of the deceased
and the debts that were due to him at the time of his death.
320.
Expenses to be pain before all debts. -Funeral
expenses to a reasonable amount, according to the degree and quality of the
deceased, and death-bed charges, including fees for medical attendance, and
board and lodging for one month previous to his death, shall be paid before all
debts.
321. Expenses to be paid next after such expenses. -The
expenses of obtaining probate or letters of
a ministration, including costs incurred for or in respect of any judicial
proceedings that may be necessary for administering
the estate, shall be paid next after the funeral expenses and death- bed
charges.
322.
Wages for certain services to be next
paid, and then other debts. -Wages due for services rendered to the deceased
within three months next preceding his death by any Laborer, artisan or
domestic servant shall next be paid and then the other debts of the deceased
according to their respective priorities (if any).
323.
Save as aforesaid, all debts to be
paid equally and rateably. -Save as aforesaid, no creditor
shall have a right of priority over another; but executor or administrator
shall pay all such debts as he knows of, including his own, equally and
rateably as far as the assets of the deceased will extend.
324.
Application of movable property to payment
of debts where domicile not in India: -
(1) If the domicile of the deceased was not 1[India], the application of his movable property
to the payment of his debts is to be regulated by the law of 1[India].
(2) No creditor who has received payment of a
part of his debt by virtue of subsection shall
be entitled to share in the proceeds of the immovable estate of the deceased
unless he brings such payment into account for the benefit of the other
creditors.
(3) This section shall not apply where the deceased
was Hindu, Muhammadans, Buddhist, Sikh or Jaina or an exempted person.
Illustration
A dies, having his domicile
in a country where instruments under sea] have priority over instruments not
under seal leaving movable property to the value 5,000 rupees, and immovable
property to the value of 10,000 rupees, debts on instruments under seal to the
amount of 10,030 rupees, and debts on instruments not under seal to the same
amount. The creditors holding instruments
under seal receive half of their debt- out of the proceeds of the movable
estate. The proceeds of the irremovable
estate are to be applied in payment of the debts on instruments not under seal
until one-half of such debts have been discharged. This will have 5,000 rupees, which are to be distributed rateably
amount all the creditors without distinction, in proportion to the amount,
which may remain due to them.
1. Subs. by Act 3 of
1951, Sec. 3 and Schedule, for “the State” (w.e.f. 1st April, 1951).
325.
Debts to be paid before legacies. -Debts of’ every description
must be paid before any legacy.
326.
Executor or administrator not bound
to pay legacies without indemnity. If the estate of the
deceased is subject to any contingent liabilities, an executor or administrator
is not bound to pay any legacy without a sufficient indemnity to meet the
liabilities whenever they may become due.
327.
Abatement of general legacies. -If the assets, after payment
of debts, necessary expenses and specific legacies, are not sufficient to pay
all the general legacies in fill], the latter shall abate or be diminished in
equal proportions, and, in the absence of ally direction to the contrary in the
will, the executor hits no right to pay one legatee in preference to another,
or to retain any money oil account of a legacy to himself or to any person for
whom he is a trustee.
328.
Non-abatement of specific legacy when
assets sufficient to pay debts. -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.
329.
Right under demonstrative legacy when
assets succinct to pay debts and necessary expenses. -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.
330.
Retable abatement of specific
legacies. -It the assets are not
sufficient to answer the debts and the specific legacies, abatement shall be
made front the latter rateably in proportion to their respective amounts.
Illustration
A has bequeathed to B a
diamond ring valued at 500 rupees, and to C a horse, valued at 1,000
rupees. It is found necessary to sell
all the effects of the testator; and his assets, after payment of debts, are
only 1,000 rupees. Of this sum rupees 335-5-4 are to be paid to B, and rupees
666-10-8 to C.
331.
Legacies treated as general for
purpose of abatement. -For the purpose of abatement, a legacy for a life, a
sum appropriated by the will to produce an annuity, and the value of all
annuities when no sum has been appropriated to produce it, shall be treated as
general legacies.
CHAPTER VIII
OF ASSENT TO A
LEGACY BY EXECUTOR OR ADMINISTRATOR
332.
Assent necessary to complete
legatee’s title. -The
assent of the executor or administrator is necessary to complete legatee’s
title to his legacy.
Illustrations
(i) A by his will bequeaths to B his
Government paper which is in deposit with the Imperial 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 Calcutta in the tenancy of B. C is not entitled to receive the rents without the assent of the executor or
administrator.
333.
Effect of executor’s assent to
specific legacy: -
(1) The assent of the executor or
administrator to a specific bequest shall be sufficient to divest his interest
as executor or administrator therein, and to transfer the subject of the
bequest of the legatee, unless the nature or the circumstances of the property
require that it shall be transferred in a particular way.
(2) This assent may be verbal, and it may be
either express or implied from the conduct of the executor or administrator.
Illustrations
(i) A horse is bequeathed. The executor requests the legatee to dispose
of it 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 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 he 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 he presumed.
334.
Conditional assent. -The
assent of an executor or administrator 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.
Illustrations
(i) A bequeaths to B his lands of
Sultanpur, which at the date of the win, and at the death of A, were, subject
to a mortgage for I 0,000 rupees. The
executor assents to the bequests. 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.
(ii) The executor assents to a bequest on
condition that the legatee shall pay him a still of money. The payment is not made. The assent is nevertheless valid.
335.
Assent of executor to his own legacy.
-
(1) 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 express or implied.
(2) Assent shall be implied if in his manner
of administering the property lie does any act, which is referable to his
character of legatee and is not referable to his character of executor or
administrator.
Illustration
An executor takes the rent of a house or the
interest of Movement Securities bequeathed to him, and apply it to his own
use. This is assent.
336.
Effect of executor’s assent-The assent of the executor
or administrator to a legacy gives effect to it from the death of the testator.
Illustrations
(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 1,000 rupees 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.
337.
Executor when to deliver legacies. -An executor or administrator is not bound to pay or deliver any
legacy until the expiration of one year from the testator’s death.
Illustration
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.
CHAPTER IX
OF THE PAYMENT
AND APPOINTMENT OF ANNUITIES
338.
Commencement of annuity when no time
fixed by will. -Where an annuity is given
by a will and no time is fixed for its commencement, it shall commence from the
testator’s death, and the first payment shall be made at the expiration of a
year next after that event
339. When
annuity, to be paid quarterly or monthly, first falls due. -Where There is a direction
that the annuity shall be paid quarterly or monthly, the first admit shall be
due at the end of the first quarter, or first month, as the case may be, after
the testator’s death; and shall, if the executor or administrator thinks fit,
be paid when due, But the executor or administrator shall not be bound to pay
it till the end of the year.
(1) Where there is a direction that the first
payment of an annuity shall be made within one month or any other division of
time from the death of the testator, or on a day certain, the successive
payments are to be made on the anniversary of the earliest day on which the
will authorises the first payment to be made.
(2) If the annuitant dies in the interval between
the times of payment, an apportioned share of the annuity shall be paid to his
representative.
CHAPTER X
OF THE
INVESTMENT OF FUNDS TO PROVIDE FOR LEGACIES
341. Investment of sum bequeathed,
where legacy, not specific, given for life. – Where a legacy, not being a specific legacy, is given for life, the sum
bequeathed shall
at the end of the year be invested in such securities as the High Court may by
any general rule authorise or direct, and the proceeds thereof shall be paid to
the legatee as the same shall accrue due.
342. Investment of general legacy,
to be paid at future time. -
(1) Where a general legacy is given to be paid
at a future time, the executor or administrator shall invest a sum sufficient
to meet it in securities of the kind mentioned in Section 341.
(2) The intermediate interest shall form part
of the residue of the testator’s estate.
343. Procedure when no fund charged
with, or appropriated to, annuity, -Where an
annuity is given and no fund is charged with its payment or appropriated by the will to answer it, a
Government annuity of the specified amount shall be purchased, or, if no such
annuity can be obtained, then a sum sufficient to produce the annuity shall be
invested for that propose in securities of the kind mentioned in Section 341.
344. Transfer to residuary legatee
of contingent bequest- Where a bequest is
contingent,
the executor or administrator is not bound to invest the amount of the legacy,
but may transfer the whole residue of the estate to the residuary legatee, if
any, on his giving sufficient security for the payment of the legacy if it
shall become due.
345. Investment of residue bequeathed
for life, without direction to invest particular securities. –Where the testator has
bequeathed the residue of his estate to a person for life without my direction
to invest it in any particular securities, so much thereof as is not at the
time of the testator’s decease invested in securities of the kind mentioned in
Section 341 shall be converted into money and invested in such securities.
346. Investment of residue
bequeathed for life, without direction to invest in specified securities. -Where
the testator has bequeathed the residue of estate to a person for life with a
direction that it shall be invested in certain specified securities, so much of
the estate as is not at the time of his death invested in securities of the
specified kind shall be converted into money and invested in such securities.
347. Time and manner of conversion
and investment: - such conversion and
investment as are contemplated by Sections 345 and 346 shall be made at such
times and in such manner as the executor or administrator thinks fir-, and, until such
conversion and investment are completed, the person who would be for the time being
entitled to the income of the fund when so invested shall receive interest at
the rate of 4 per cent per annum upon the market-value (to be computed as at
the date of the testator’s death) of such part of the find as has not been so
invested:
Provided that the rate of interest prior to completion of
investment shall be six percent per annum when the testator was a Hindu,
Muhammadans, Buddhist, Sikh or Jaina or an exempted person.
(1) Where, by the terms of a bequest, the
legatee is entitled to the immediate payment or possession of the money or
thing bequeathed, but is a minor, and there is no direction in the will to pay
it to any person. on his behalf, the executor or administrator shall pay or
deliver the same into the Court of the District Judge, by whom or by whose
District Delegate the probate was, or letters or administration with the will
annexed were, granted to the account of the legatee, unless the legatee is a
ward of the Court of Wards.
(2) If the legatee is ward of the Court of
Wards, the legacy shall be paid to the Court of Wards to his account.
(3) Such payment into the Court of the
District Judge, or to the Court of Wards, as the case may be, shall be a
sufficient discharge for the money so paid.
(4) Money when paid in under this section
shall be invested’ in the purchase of Government securities, which, with the
interest thereon, shall be transferred or paid to the person entitled thereto,
or otherwise applied for his benefit, as the Judge or the Court of Wards, as
the case may be, may direct.
CHAPTER XI
OF THE PRODUCE
AND INTEREST OF LEGACIES
349. Legatee’s title introduce
specific legacy. -The legatee of a specific
legacy is entitled to the clear produce thereof, if any, from the testator’s
death,
Exception. -A specific bequest,
contingent in its terms does not comprise the produce of the legacy between the
death of testator and the vesting of the legacy, the clear produce of it forms
part of the residue of the testator’s estate.
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 the 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
percent. Government promissory notes to a when be 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.
350. Residuary legatee’s title to
produce of residuary fund. -The legatee under a
general residuary bequest is entitled to
the produce of the residuary fund from the testator’s death.
Exception. -A general residuary
bequest contingent in its terms does not comprise the income, which may accrue
upon the fund bequeathed between the death of the testator and the vesting of
the legacy. Such income goes as
indisposed of.
Illustrations
(i) 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.
(ii) The testator bequeaths the residue of
his property to A when fie 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, undisputed of.
351. Interest when no time fixed for
payment of general legacy. -Where no time has been fixed
for the payment of a general legacy, interest begins to run from expiration of
one year
from the testator’s death.
Exception.
–
(1) Where the legacy is bequeathed in
satisfaction of a debt, interest runs from the death of the testator.
(2) Where the testator was a parent or a
more remote ancestor of the legatee, or has put himself in the place of a
parent of the legatee, die legacy shall bear interest from the death of the
testator.
(3) Where a sum is bequeathed to a minor
with a direction to pay for his maintenance out of it, interest is payable from the death of the testator.
352. Interest when time fixed. -Where a time has been fixed for the payment of a general legacy,
interest begins
to run from the time so fixed. The
interest up to such time forms part of the residue of the testator’s estate.
Exception. - Where the testator was a
parent or a more remote ancestor of the legatee, or has put himself in the
place of a parent of the legatee and the legatee is a minor, the legacy shall
bear interest from the death of the testator, unless a specific sum is given by
the will for maintenance, or unless the will contains a direction to the
contrary.
353. Rate of interest- The rate of interest shall be four per cent per annum in all cases
except when the testator was a Hindu, Muhammadans, Buddhist, Sikh or Jaina or
an exempted person, in which case it shall be six per cent per annum.
354. No interest on arrears of
annuity within first year after testator’s death. - No interest is payable on
the arrears of an annuity within the first year from the death of the testator
although a period earlier than the expiration of that year may have been fixed
by the will for making the first payment of the annuity.
355. Interest or sum to be
invested to produce annuity. -Where a sum of money is directed to be invested to
produce an annuity, interest is payable on it from the death of the testator.
CHAPTER XII
OF THE REFUNDING
OF LEGACIES
356. Refund of legacy paid
under Court’s Orders. -When an administrator has
paid a legacy under the order of a Court, he is entitled to call upon the
legatee to refund in the event of the assets proving insufficient to pay all
the legacies.
357.
No refund if paid voluntarily. -When an executor or
administrator has voluntarily paid a legacy, he cannot call upon a legatee to
refund in the event of the assets proving insufficient to pay all the legacies.
358.
Refund when legacy has become due on
performance of condition within further time allowed under Section 137. -When
the executor prescribed by the will for the performance of a condition has
elapsed, without the condition having been performed, and the executor or
administrator has thereupon, without fraud, distributed the assets; in such
case, if further time has been allowed under Section 137 for the performance of
the condition, and the condition has been performed accordingly, the legacy
cannot be claimed from the executor or administrator, but those to whom he has
paid it are liable to refund the amount.
359.
When each legatee compellable to
refund in proportion. -When the executor or
administrator has paid away the assets in legacies, and he is afterwards
obliged to discharge a debt of which he had no previous notice, he is entitled
to call upon each legatee to refund in proportion.
360. Distribution of assets. -Where
an executor or administrator has given such notices as the High Court may, by
any general rule, prescribe or, if no such rule has been made, as the High
Court would give in an administration-suit, for creditors and others to send in
to him their claims against the estate of the deceased, he shall, at the
expiration of the time therein named for sending in claims, be at liberty to
distribute the assets, or any part thereof, in discharge of such lawful claims
as he knows, of, and shall not be liable for the assets so distributed to any
person of whose claim he shall not have had notice at the time of’ such
distribution:
Provided that nothing herein
contained shall prejudice the right of any creditor claimant to follow the
assets, or any part thereof, in the hands of the persons who may have received
the same respectively.
361. Creditor may call upon
legatee to refund. -A
creditor who has not received payment of his debt may call upon a legatee who
has received payment of his legacy to refund, whether the assets of the
testator’s estable were or were not sufficient at the time of his death to pay
both debts and legacies; and whether the payment of the legacy by the executor
or administrator was voluntary or not.
362.
When legatee, not satisfied or compelled
to refund under Section 361, cannot oblige one paid in full to refund. -If the assets were
sufficient to satisfy all the legacies at the time of the testator’s death, a
legatee who has not received payment of his legacy, or who has been compelled
to refund under Section 361, cannot oblige one who has received payment in full
to refund, whether the legacy were paid to him with or without suit, although
the assets have subsequently become deficient by the was6ng of the executor.
363. When unsatisfied legatee must
first proceed against executor, if solvent:- If the assets were not sufficient to satisfy all the legacies at the time of the testator’s death,
a legatee who has not received payment of his legacy must, before he can call
on a satisfied legatee to refund, first proceed against the executor or
administrator if he is solvent; but if the executor or administrator is
insolvent or not liable to pay, the unsatisfied legatee can oblige each
satisfied legatee to refund in proportion.
364. Limit to refunding of one
legatee to another. -The
refunding of one legatee to another shall not exceed the sum by which the
satisfied legacy ought to have been reduced if the estate had been properly
administered.
Illustration
A has bequeathed 240 rupees
to B, 480 rupees to C, and 720 rupees to D. The assets are only 1,200 rupees
and, if properly administered, would give 200 rupees to B, 400 rupees to C and
600 rupees to D, C and D have been paid their legacies in full, leaving nothing
to B. B can oblige C to refund 80 rupees, and D to refund 120 rupees.
365. Refunding to be without
interest-The refunding shall in all
cases be without interest.
366. Residue after usual
payments to be paid to residuary legatee. -The
surplus or residue of the deceased’s property, after payment of debts and
legacies, shall be paid to the residuary legatee when any has been appointed by
the will.
367.
Transfer of assets from India to
executor or administrator in country of domicile for distribution: -Where
a person not having his domicile in1[India]
has died leaving assets both in 1[India]
and in the country in which he had his domicile at the time of his death, and
there has been a grant of probate or letters of administration in 1[India] with respect to the assets there and a
grant of administration in the country of domicile with respect to the assets
in that country, the executor or administrator, as the case may be, in1[India], after having given such notices as are
mentioned in Section 360, and after having discharged, at the expiration of the
time therein named, such lawful claims as he knows of, may, instead of himself
distributing any surplus or residue of the deceased’s property to persons
residing out of 1[India] who are entitled
thereto, transfer, with the consent of the executor or administrator, as the
case may be, in the country of domicile, the surplus or residue to him for
distribution to those persons.
1. Subs. by Act 8 of
1951, Sec. 3 and Schedule I, for “The States” (w. e. f. 1st April,
1951).
CHAPTER XIII
OF THE LIABELITY OF AN EXECUTOR OR ADMINISTRATOR FOR
DEVASTATION
368. Liability of executor or administrator for
devastation. -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.
Illustrations
(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.
369. Liability of executor or
administrator for neglect to get any part of property: -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.
Illustrations
(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.
PART X
SUCCESSION
CERTIFICATES
370. Restriction on grant of
certificates under this Part. –
(1) A succession certificate (hereinafter in
this Part referred to as certificate) shall not be granted under this Part with
respect to any debt or security to which a right is required be Section 212 or
Section 213 to be established by letters of administration or probate:
Provided that nothing
contained in this section shall be deemed to prevent the grant of a certificate
to any person claiming to be entitled to the effects of a deceased Indian
Christian, or to any part thereof, with respect to any debt or security, by
reason that a right thereto can be established by letters of administration
under this Act.
(2) For the purposes of this Part, “security”
means-
(a) Any promissory note, debenture, stock or
other security of the Central Government or of a State Government;
(b) Any bond, debenture, or annuity charged
by Act of Parliament 1[of the United
Kingdom ]on the revenues of India;
(c) Any stock or debenture of, or share in,
a company or other incorporated institution;
(d) Any debenture or other security for
money issued by, or on behalf of, a local authority;
(e) Any other security which the 2[State Government] may, by notification in the
Official Gazette, declare to be a security for the purpose of this Part.
1. Ins by the A.L.O., 1950 (w.e.f. 26th
January, 1950).
2.
The words “G.G. In C” have been
successively substituted by the A.O., 1937 and the A.L.O., 1950 to read as
above (w.e.f. 26th January1950).
371.
Court having jurisdiction to grant
certificate. -The District Judge within
whose jurisdiction the deceased ordinarily resided at the time of his death,
or, if at that time he had no fixed place of residence, the District Judge, within
whose jurisdiction any part of the property of the deceased may be found, may
grant a certificate under this Part.
372. Application for
certificates: -
(1)
Application for such a certificate shall be made to the District Judge by a
petition signed and verified by or on behalf of the applicant in the manner
prescribed by the code of Civil Procedure, 1908, for the signing and
verification of a plaint by or on behalf of a plaintiff, and setting forth the
following particulars, namely: -
(a) The time of the death of the deceased.
(b) The ordinary residence of the deceased
at the time of his death and, if such residence was not within the local limits
of the jurisdiction of the Judge to whom the application is made, then the
property of the deceased within those limits;
(c) The family or other near relatives of
the deceased and their respective residences.
(d) The right in which the petitioner
claims;
(e) The absence of any impediment under
Section 370 or under any other provision of this Act or any other enactment, to
the grant of the certificate or to the validity thereof if it were granted; and
(f) The debts and securities in respect of
which the certificate is applied for.
(2) If the
petition contains any averment which the person verifying it knows or believes
to be false-, or does not believe to be true, that person shall be deemed to
have committed an offence under Section 198 of the Indian Penal Code.
1[(3) Application for such a certificate may be
made in respect of any debt or debts due to the
deceased creditor or in respect or portions thereof].
1. Added by Act 14 of
1928, Sec. 2
373.
Procedure on application: -
(1) If the District Judge is satisfied that
there is ground for entertaining the application, he shall fix it day for the
hearing thereof and cause notice of the application and of the day fixed for
the hearing-
(a) To be served on any person to whom, in
the opinion of the Judge, special notice of the application should be given,
and
(b) To be posted on some conspicuous part of
the court-house and published in such other manner, if any, as the Judge,
subject to any rules made by High Court in this behalf, thinks fit, and upon the t day fixed, or as soon thereafter as
may be practicable, shall proceed to decide
in summary manner the right to the certificate.
(2) When the Judge decides the right thereto
to belong to the applicant, the Judge shall make an order for the grant of the
certificate to him.
(3) If the Judge cannot decide the right to
the certificate without determining questions of law or fact which seem to be
too intricate and difficult for determination in a summary proceeding, he may
nevertheless grant a certificate to the applicant if he appears to be the
person having prima facie the best title thereto.
(4) When there are more applicants than one
for a certificate, and it appears to the Judge that more than one of such
applicants are interested in the estate of the deceased, the Judge may, in
deciding to whom the certificate is to be granted, have regard to the extent of
interest and the fitness in other respect of the applicants.
374.
Contents of certificate. -When the District Judge
grants a certificate, he shall therein specify the debts and securities set
forth in the application for the certificate, and may thereby empower the
person to whom the certificate is granted-
(a) To receive interest or dividends on, to.
(b) To negotiate or transfer, or.
(c) Both to receive interest or dividends on, and negotiate or
transfer, the securities or any of them.
375. Requisition of security
from grantee of certificate. –
(1) The District Judge shall in any case in
which he proposes to proceed under sub-section (3) or sub-section (4) of Section 373, and may, in any other case,
require as a condition precedent to the granting of a certificate, that the
person to whom he proposes to make the grant shall give to the Judge a bond
with one more surety or sureties, or other sufficient security, for rendering
an account of debts and securities received by him and for indemnity of persons
who may be entitled to the whole or any part of those debts and securities.
(2) The Judge may, on application made by
petition and on cause shown to his satisfaction, and upon such terms as to
security, or providing that the money received be paid into Court, or
otherwise, as he thinks fit, assign the bond or other security to some proper
person, and that person shall thereupon be entitled to sue thereon in his own
name as if it had been originally given to him instead of to the Judge of the
Court, and to recover, as trustee for all persons interested, such amount as
may be recoverable thereunder.
376. Extension of certificate:
-
(1) A District Judge may, on the application
of the holder of a certificate under this Part, extend the certificate, to any
debt or security not originally specified therein, and every such extension
shall have the same effect as if the debt or security to which the certificate
is extended had been originally specified therein.
(2) Upon the extension of a certificate,
powers with respect to the receiving of interest or dividends on, or the
negotiation or transfer of any security to which the certificate has been
extended may be conferred, and a bond or further bond or other security for the
purpose mentioned in Section 375 may be required, in the same manner as upon
the original grant of a certificate.
377. Forms of certificate and
extended certificate. -Certificates shall be granted and extensions of
certificates shall be made, as nearly as circumstances admit, in the forms set
forms in Schedule VIII.
378.
Amendment of certificate in respect
of power as to securities. -Where a District Judge has
not conferred on the holder of a certificate any power with respect to a
security specified in the certificate, or has only empowered him to receive
interest or dividends on, or to negotiate or transfer, the security, the Judge
may, on application made by petition and on cause shown to his satisfaction,
amend the certificate by conferring any of the powers mentioned in Section 374
or by substituting any one for any other of those powers.
379. Mode of collecting
Court-fees on certificates: -
(1) Every application for a certificate or
for the extension of a certificate shall be accompanied by a deposit of a sum
equal to the fee payable under the Court-fees Act, 1870 (7 of 1870), in respect
of the certificate or extension applied for.
(2) If the application is allowed, the sum
deposited by the applicant shall be expended, under the direction of the Judge
in the purchase of the stamp to be used for denoting the fee payable as
aforesaid.
(3) Any sum received under sub-section (1)
and not expended under sub-section (2) shall be refunded to the person who
deposited it.
380.
Local extent of certificate: -A certificate under this Part shall have effect throughout 1[* *] 2{India]
3[* * *];
4[This section shall apply in 2[India] 5[*
* *] after the separation of Burma and Aden before the date of the separation,
or after that date in proceedings which were pending at that date].
6[It shall also apply in 2[India]
7[* * *] after the separation of Pakistan
from India to certificates granted before the date of the separation, of after
that date in proceedings pending at that date in any of the territories, which
on that date constituted Pakistan].
1. The word “all”
omitted by the Act 48 of 1952, Sec. 3 and Schedule II (w.e.f. 2nd
August, 1952).
2. Subs. by Act 3 of
1951, Sec. 3 and Schedule for “ the States” (w.e.f. 1st April,
1951).
3. The word “of India”
omitted by the A.L.O., 1950 (w.e.f. 26th January, 1950).
4. Ins. by the A.O.,
1937.
5. 1st April,
1937.
6 Ins. by A.O., 1948.
7. The words “of India”
omitted by Act 48 of 1942, Sec. 3 and Schedule II (w.e.f. 2nd
August, 1952).
381. Effect of certificate. -Subject to the provisions of
this Part, the certificate of the District Judge shall with respect to the
debts and securities specified therein, be conclusive as against the persons
owing such debts or liable on such securities and shall notwithstanding any
contravention of Section 370 or other defect afford full indemnity to all such
persons as regards all payments made,
or dealings had in good faith in respect of such debts or securities to or with the person to whom
the certificate was granted.
1[382. Effect of certificate granted or extended by
Indian representative in foreign State and in certain other cases. -Where a certificate in the
form, as nearly as circumstances admit, of Schedule Vlll-
(a) Has been granted to a resident within a
foreign State by an Indian representative accredited to that State, or
(b) Has been granted before the commencement
of the Part B States (Laws) Act, 1951 to a resident within the of Jammu and
Kashmir by the District Judge of that State or has been extended by him in such
form, or
(c) Has been granted the commencement of the
Part B States (Laws) Act, 1951 to a resident within the State of Jammu and
Kashmir by the District Judge of that State or has been extended by him in such
form. the certificate shall when stamped in accordance with the provisions of
the Court-fees Act, 1870 (7 of 1870), with respect to certificates under this
Part, have the same effect in India as a certificate granted or extended under
this Part.
1.
Subs. by Act 34 of 1957, Sec. 2,
for the former section (w.e.f. 17th September, 1957).
383.
Revocation of certificate. -A certificate granted
under this Part may be revoked for any of the following causes, namely: -
(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 other proceeding with respect to effects
comprising debts or securities specified in the certificate renders it proper
that the certificate should be revoked.
(1) Subject to the other provisions of this
Part an appeal shall lie to the High Court from an order of a District Judge
granting, refusing or revoking a certificate under this Part, and the High
Court may, if it thinks fit, by its order on the appeal, declare the person to
whom the certificate should be granted and direct the District Judge on application
being made therefor, to grant it accordingly, in supersession of the
certificate, if any, already granted.
(2) An appeal under sub-section (1) must be
preferred within the time allowed for an appeal under
the Code of Civil Procedure, 1908 (5 of 1908).
(3) Subject to the provisions of sub-section
(1) and to the provisions as to reference to and revision by the High Court and
as to review of judgment of the Code of Civil Procedure, 1908 (5 of 1908), as
applied by Section 141 of the Code, an order of a District Judge under this
Part shall be final.
385. Effect on certificate of previous
certificate, probates or letters of administration, -Save as provided by this
Act, a certificate granted thereunder in respect of the effects of a deceased person shall be invalid if there has
been a previous grant of such a certificate or of probate or letters of
administration in respect of the estate of the deceased person and if such
previous grant is in force.
386.
Validation of certain payments made
in good faith to holder of invalid certificate. - Where a certificate under
this Part has been superseded or is invalid by reason of the certificate having
been revoked under Section 383, or by reason of the grant of a certificate to a
person named in an appellate order under Section 384, 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, shall be held good against claims
under any other certificate.
387. Effect of decisions under
this Act, and liability of holder of certificate there under. -No decision under this Part
upon any question of right between any parties shall be held to bar the trial
of the same question in any suit or in any other proceeding between the same
parties, and nothing in this Part shall be construed to affect the liability of
any person who may receive the whole or any part of any debts or security or
any interest or dividend on any security, to account therefor to the person
lawfully entitled thereto.
388.
Investiture of inferior Courts with
jurisdiction of District Court for purpose of this Act-
(1) The State Government may, by notification
in the Official Gazette, invest any Court inferior in grade to a District Judge
with power to exercise the functions of a District Judge under this Part.
(2) Any inferior Court so invested shall,
within the local limits of its jurisdiction have concurrent jurisdiction with
the District Judge in the exercise of all the powers conferred by this Part
upon the District Judge and the provisions of this Part relating to the
District Judge shall apply to such an inferior Court as if it were a District
Judge:
Provided that an appeal from
any such order of an inferior Court as is mentioned in sub-section (1) of
Section 384 shall lie to the District Judge, and not to the High Court, and
that the District Judge may, if he thinks fit, by his order on the appeal, make
any such declaration and direction as that sub-section authorises the High
Court to make by its order on an appeal from an order of a District Judge.
(3) An order of a District Judge on an appeal
from an order of an inferior Court under the last foregoing sub-section shall,
subject to the provisions as to reference to and revision by the High Court and
as to review of judgment of the Code of Civil Procedure, 1908 (5 of 1908), as
applied by Section 141 of that Code, be final.
(4) The District Judge may withdraw any
proceedings under this Part from an inferior Court, and may either himself
dispose of them or transfer them to another such Court established within the
local limits of the jurisdiction of the District Judge and having authority to
dispose of the proceedings.
(5) A notification under sub-section (1) may
specify any inferior Court specially or any class of such Courts in any local
area.
(6) Any Civil Court, which for any of the
purpose of any enactment is subordinate to, or subject to the control of, a
District Judge shall, for the purpose of this section, be deemed to be a Court
inferior in grade to a District Judge.
389.
Surrender of superseded and invalid
certificate: -
(l) When a certificate under this Part has
been superseded or is invalid from any of the causes mentioned in Section 386,
the holder thereof shall, on the requisition of the Court which granted it,
deliver it up to that Court.
(2) If
he wilfully and without reasonable cause omits so to deliver it up he shall be
punishable with fine which may extend to one thousand rupees or with
imprisonment for a term which may extend to three months or with both.
390. Provision with respect to
certificates under Bombay Regulation No. VIII of 1827- Notwithstanding anything in Bombay
Regulation No. VIII of 1827, the provision of Section 370, sub-section (2),
Section 372, sub-section (1), clause (f), and Sections 374, 375, 376, 377, 378,
379, 381, 383, 384, 387, 388 and 389 with respect to certificates under this
Part and applications therefor, and of Section 317 with respect to the
exhibition of inventories and accounts by executors and administrators shall,
so far as they can be made applicable, apply respectively to certificates
granted under that Regulation and applications made for certificates thereunder
after the Ist day of May, 1889, and to the exhibition of inventories and
accounts by the holders of such certificates so granted.
PART XI
MISCELLANEOUS
391. Saving. -Nothing in Part VIII, Part IX or Part X shall-
(i) Validate any testamentary disposition,
which would otherwise have been invalid
(ii) Invalidate any such disposition, which
would otherwise have been invalid
(iii) Deprive any person of any right of
maintenance to which he would otherwise have been entitled; or
(iv) Affect the Administration General’s Act,
1913 (3 of 1913).
392. [Repeals.]-Rep. by the Repealing Act, 1927
(12 of 1927).
(See Section 28)
Table of
Consanguinity
4
3 5
`
4
2
5
1 3
6
4
1
3
Grandson of the Cousin German.
4 5
4
1[SCHEDULE II]
PART I
(See Section 54)
(1) Father and mother.
(2) Brothers and sisters (other than half
brothers and sisters) and lineal descendants of such of them as shall have
predeceased the intestate.
(3) Paternal and maternal grandparents. .
(4) Children of paternal and maternal
grandparents and the lineal, descendants of such of them as have predeceased
the intestate.
(5) Paternal and maternal grandparents’
parents.
(6) Paternal and maternal grandparents’
parents’ children and the lineal descendants of such of them as have
predeceased the intestate.
1.
Subs. by Act 51 of 1991, Sec. 7.
PART II
(See Section 55)
(1) Father and mother.
(2) Brothers and sisters (other than half
brothers and sisters) of such of them as shall have predeceased the intestate.
(3) Paternal and maternal grandparents.
(4) Children of paternal and maternal
grandparents and the lineal descendants of such of them as have predeceased the
intestate.
(5) Paternal and maternal grandparents’
parents.
(6) Paternal and maternal grandparents’
children and the lineal descendants of such of them as have predeceased the
intestate.
(7) Half brothers and sisters and the lineal
descendants of such of them as have predeceased the intestate.
(8) Widows of brothers or half brothers and
widowers of sisters or half sisters.
(9) Paternal or maternal grandparents
children’s widows or widowers.
(10) Widows or widowers of deceased lineal descendants
of the intestate who have not married again before the death of the intestate.]
(See Section 57)
PROVISIONS OF
PART 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, 104, 105,
106, 107,108, 109, 110, 111, 112, 113, 114, 115, 116, 1[117],
119, 120, 121,122,123,124,125, 126,127,
128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145,146,
147, 148, 149, 150, 151, 152,153, 154,155,156,157,158,159, 160,161, 162,163,
164, 165, 166, 167, 168, 169, 170, 171,172, 173, 174, 175, 176, 177,178, 179, 180, 181, 182, 183, 184, 185, 186, 187,
188, 189 and 190.
1. Ins. by Act 21 of
1929, Sec.14.
Restrictions and
modifications in application of foregoing sections: -
1. Nothing therein contained shall
authorize a testator to bequeath property which he could not have alienated
inter vivos, or to deprive any persons of any right of maintenance and lineal
descendants of which, but for the application of these sections, he could not
deprive them by will.
2. Nothing
therein contained shall authorize any Hindu, Buddhist, Sikh or Jaina, 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 seventy-five, seventy-six, one hundred and five, one
hundred and nine, one hundred and eleven, one hundred and twelve, one hundred
and thirteen, one hundred and fourteen, one hundred and fifteen, and one
hundred and sixteen to such wills and codicils the words “son”, “sons”,
“child”, and “children” shall be deemed to include an adopted child; and the
word “grand-children” 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.
[See Section 274
(2)]
FORM OF
CERTIEFICATE
1. A.B. Registrar (or as the
case may be) of the High Court of Judicature at………. (or as the case may be)
hereby certify that on the….. day of ……., the High Court of Judicature at…… (or
as he case may be) granted probate of the
will (or letters of administration of the estate) of C.D. late of……, deceased, to E.F. of……… and G.H. of…….., and that such
probate (or letters) has (or have) effect over dl the property of the deceased throughout
1[India] 2[*
* *].
1. Subs. by Act 3 of 1951, Sec. 3 and
Schedule ,for “the States” (w.e.f. 1st April, 1951).
2. The words “of India” omitted by the
A.L.O. (w.e.f. 26th January, 1950).
[See Section 284
(4)]
FORM OF CAVEAT
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
(See Section
289)
FORM OF PROBATE
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 date or within such further time as
the Court may, from time to time, appoint.
(See Section
290)
FORM OF LETTERS
OF ADMINISTRATION
I……………………, Judge of the District of or Delegate appointed for granting probate of 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.
(See Section
377)
FORMS OF
CERTIFICATE AND EXTENDED CERTIFICATE
In the Court of………………………..
To A. B.
Whereas you applied on the
day of…… for a certificate under Part X of the Indian Succession Act, 1925, in
respect of the following debts and securities, namely: -
Debts
|
Serial No. |
1[Name] of debtor |
Amount of debt, including interest, on date of
application for certificate |
Description and date of instrument, if any, by
which the debt is secured. |
|
|
|
|
|
1. Subs by Act 48 of
1952, Sec. 3 and Schedule II, for “Number” (w.e.f. 2nd August,
1952).
Securities
|
Serial Number |
Description |
Market-value of security on date of application
for certificate |
||
|
Distinguishing number of letter of security |
Name, title or class of security |
Amount or par value of security |
||
|
|
|
|
|
|
This certificate is
accordingly granted to you and empowers you to collect those debts [and] [to
receive] [interest] [dividends] [on] [to negotiated [to transfer] [those
securities].
District Judge
Dated this……. day of……. In
the Court of ……. On the application of A.B. made to me on the day of……. I
hereby extend this certificate to the following debts and securities, namely: -
Debts
|
Serial
No. |
Name
of debtor |
Amount
of debt including interest, on date of application for extension |
Description
and date of instrument, if any, by which the debt is secured |
|
|
|
|
|
Securities
|
Serial
No. |
Description |
Market
value of security on date of application for extension |
||
|
|
Distinguishing number or
letter of security |
Name, title or class of
security |
Amount or par value. Of
security |
|
This extension empowers A.
B. to collect those debts [and] [to receive] [Interest] [dividends] [on] [to
negotiate] [to transfer] [those securities.].
Dated this………. day of District Judge……….
District Judge
[Enactments Repealed.] Rep. by the Repealing Act, 1927 (12 of
1927), Sec. 2 and Schedule.