INDIAN SUCCESSION ACT, 1925

Regal Mentor

INTRODUCTION

The Indian Succession Act, 1865, was originally introduced as the

Indian Civil Code. In the statement of objects and reasons the Hon’ble

Mr. Mayne pointed out that the object of the Act was to prepare for India a

body of substantive law relating to testamentary and intestate succession. The

English Law was considered to be the basis of this Act. But the “principal

modification proposed to be effected on the English law consists in

obliterating the distinction between real and personal property.” Another

object was to do away with all the merely technical consequences of the feudal

stage through which immovable property has passed in England.

The Indian Succession Act of 1865 was basically meant to be applied

for all types of intestate and testamentary succession. The Act contains so

many exceptions so that earlier it was not applicable to the natives of India. It

was applicable to Europeans by birth or descent, domiciled in India or died

possessed of immovable properties in India. It applied also to persons of

mixed European and native blood and to Jews.

Succession Laws in India for Different Religious Communities

The Indian Succession Act, 1925, deals with two types of inheritance:

testamentary succession and intestate succession. Testamentary succession

applies when there is a written will. If there is no will, intestate succession

applies, and the deceased's property is distributed according to religious laws.

This Act applies to people of different religions in India.

Hindus

For Hindus, testamentary succession is governed by the Indian

Succession Act, 1925. Intestate succession of the Hindus is governed by their

personal law which has now been codified in the Hindus Succession Act of

1956. The Indian Succession Act, 1925, does not apply to intestate succession

for Hindus due to the Hindu Undivided Family (HUF) system under Hindu

law. The Hindu Succession Act, 1956, was enacted to address inheritance

matters in line with Hindu traditions and customs.

The Mohammedans are governed by their own personal law. The

Hindu law of survivorship in a Joint family also remains intact. Thus the Act

of 1925 like the original Act of 1865 is only an incomplete Law of Succession.

Muslims

As far as Mohammedans are concerned they are regulated by their

personal law in both testamentary and intestate succession. The Hindu Wills

Act, 1870 made certain provisions of the Indian Succession Act applicable to

wills of Hindus made on or after 1-9-1870. The Probate and Administration

Act, 1881 was applied to Hindus and Mohammedans. The Succession Act of

1925 repealed those Acts but reproduced their provisions.

For Muslims, the Indian Succession Act, 1925, does not apply to either

testamentary or intestate succession. Instead, succession is based on the Quran

and other Islamic sources, with Hedaya or Fatawa Alamgiri serving as the

main authority on wills. According to Muslim law, the property of the

deceased is distributed in the following order:

1. Payment of funeral and deathbed expenses.

2. Costs related to probate, letters of administration, or succession

certificates.

3. Payment of wages owed to any laborer, artisan, or domestic

servant for services rendered within three months before the death.

4. Settlement of other debts of the deceased.

5. Distribution of legacies, limited to one-third of the remaining

property after the above payments.

6. The remaining two-thirds is distributed among heirs as per

intestate succession.

Christians

For Christians, the Indian Succession Act, 1925, applies to both

testamentary succession (when there is a will) and intestate succession (when

there is no will).

Buddhists

For Buddhists, the laws of testamentary succession are governed by the

Indian Succession Act, 1925. However, the laws of intestate succession are

governed by the Hindu Succession Act, 1956.

Jains

For Jains, the Indian Succession Act treats them as Hindus, and thus, the

same provisions that apply to Hindus also apply to Jains. The laws for

testamentary succession are governed by the Indian Succession Act, 1925,

while the laws for intestate succession are governed by the Hindu Succession

Act, 1956.

Sikhs

For Sikhs, the Indian Succession Act, 1925, governs testamentary

succession (when there is a will). However, in the case of intestate succession

(when there is no will), the Hindu Succession Act, 1956, is applicable.

English Law

In England real property (i.e, immovable property) in which there was

‘fee simple’ interest i.e., absolute ownership, devolved until 1925 by

primogeniture

. Personal property (chattels) e.g. movable property, devolved

upon the next of kin. The Indian Act of 1864 assimilated real property to

personal property and applied to all property the law of succession which

governed personal property. Secondly, real property in England was held on

feudal tenure and had many incidents of a technical character. Technical

words had to be employed to create certain estates and the creation of future

interests were governed by many technical rules devised for the benefit of the

feudal lords.

The Indian Act of 1865 excluded these technicalities and simplified the

law. It should be noted that similar changes were brought about in English

Law only as late as 1925 in certain cases. The land legislation of 1925 in

England completely changed the law applicable to real property. It also

abolished many obsolete feudal rules to achieve simplification. In India also

the Indian Succession Act 1865 was replaced by the Indian Sucession Act,

1925 which came into force form 30-9-1925.

TOPIC I

INTESTATE SUCCESSION

Part five of the Indian Succession Act, 1925 deals with Intestate

Succession. It contains section 29 to 56.

Application of Part

This Part of the Act shall not apply to any intestacy occurring before the

first day of January 1866, or to the property of any Hindu, Muhammad,

It means ‘upon the eldest son of the deceased.’

See also Dr. T.V. Subba Rao and Dr. Vijender Kumar, Family Law in India (2004), pp 641-642

Buddhist, Sikh or Jaina

. Similarly this Part shall constitute the law of India

all cases of intestacy.

In Ranbir Karan Singh v. Jogendra Chandra Bhatiacharajaji

, the

Court held that the argument that succession to an estate of an Indian Christian

can be governed by the rules applied to the community to which he belonged

before his conversion of Christianity is not sound.

As to what property deceased considered to have died intestate

By virtue of Sec. 30 of the act, 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 as his executor; but the

will contains no other provisions. A has died intestate in respect of

the distribution of his property.

(iii) A has bequeathed his whole property for an illegal purpose. A has

died intestate in respect of the distribution of his property.

(iv) A has bequeathed 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 died before A without

having ever had a son. A has died intestate in respect of the

distribution of 1,000 rupees.

TOPIC II

RULES IN CASES OF INTESTATES OTHER THAN PARSIS

Chapter two of the Act deals with Rules in Cases of Intestates other than

Parsis. Sec.31of the Act provides that nothing in this Chapter shall apply to

Parsis.

Devolution of such property

By virtue of S. 32 of the Act 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.

Sec 29 (1).

Through Sec 29(2).

Subs. by Act 3 of 1951, Sec. And Schedule, for “the State” (w.e.f. 1st April, 1951).

AIR 1940 All. 134

Explanation to Sec. 32 states that, 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.

Where intestate has left widow and lineal descendants, or widow and

kindred only, or widow and no kindred

Sec.33 of the Act provides that 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) 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;

property shall belong to his widow.

Special provision where intestate has left widow and no lineal

descendants

Sec.33 A (1) of the Act provides that where the intestate has left a

widow but no lineal descendants and the net value of his Property does not

exceed five thousand rupees, the whole of his property shall belong to the

widow.

Sec. 33 (2) states that 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.

Sec. 33 (3) states that 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.

By virtue of Sec. 33 (4) of the Act the net value of the property shall be

ascertained by deducting from the gross value thereof all debts, and all funeral

and administrative expenses of the intestate, and all other lawful liabilities and

charges to which the property shall be subject.

Sec. 33(5) states that 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.

Where intestate has left no widow, and where lie has left no kindred

Sec. 34 of the Act states that 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.

Rights of widower

Sec. 35 of the Act states that 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

Rules of distribution

Sec. 36 of the Act provides that 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.

Where intestate has left child or children only

Sec. 37 of the Act states that if 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.

In Valsamma Paul (Mrs.) v. Cochin University

, it has been held that

institutions of marriage and adoption are two important social institutions

through which secularism would find its fruitful and solid base for an

egalitarian social order under the Constitution and accordingly its recognition

must be upheld as valid for social mobility and integration.

Where intestate has left no child, but grandchild or grand children

According to Sec.38 if 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

(1996) 3 SCC 545

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.

Where intestate has left only great grand children or remoter lineal

descendants

According to Sec.39, in like manner the property shall go 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,

If intestate leaves lineal descendants not all in same degree of kindred to

him and those through whom the more remote are descended are dead

Sec. 40(1) of the Act states that 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.

Sec. 40(2) states that 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 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 dies leaving four

children; and one of John’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-third

is divided into four parts, one of which is allotted to each of John’s

three surviving children, and the remaining part is equally divided

between John’s two grandchildren.

(iv) A has two children, and no more; John and Mary. Joint dies before

his father, leaving his wife pregnant. Then A dies leaving Mary

surviving him, and in due time a child of John is born. A’s property

is to be equally divided between Mary and the posthumous child.

Distribution where there are no lineal descendants

Rules of distribution where intestate has left no lineal descendants

Sec. 41 of the Act states that 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.

Where intestate’s father living

Sec. 42 of the Act provides that if the intestate’s father is living, he shall

succeed to the property.

Where intestate’s father dead, but his mother, brothers and sisters living

Sec. 43 of the Act states that 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.

Where intestate’s father dead and his mother, brother or sister, and

children of any deceased brother or sister living

Sec. 44 states that 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.

Where intestate’s father dead and his mother and children of any

deceased brother sister living

According to Sec. 45 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, lives no brother or sister, but lives 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.

Where intestate’s father dead, but his mother living and no brother,

sister, nephew or niece

Sec. 46 of the Act states that 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.

Where intestate has left neither lineal descendant, nor father nor mother

Sec. 46 of the Act provides that 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.

Where intestate has left neither lineal descendant, nor parent, nor

brother, nor sister

Sec. 48 of the Act states that 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 uncles and aunts, and no other relative standing in the same or

a nearer degree of kindred to him. All of these being in the third

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.

Children’s advancements not brought into hotchpots

Sec. 49 of the Act states that 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.

TOPIC III

SPECIAL RULES FOR PARSI INTESTATES

Part Five Chapter III of the Act deals with Special Rules for Parsi

Intestates

General principles relating to intestate succession

Sec. 50 of the Act provides that 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 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

married again in the lifetime of the intestate, such widow or

widower shall not be entitled to receive any share of the property of

which the intestate has died intestate, and such widow or widower

shall be deemed not to be existing at the intestate’s death.

Division of intestate’s property among widow, widower, children and

parents

Sec. 51(1) of the Act states that subject to the provisions of sub- section.

Sec. 51(2) states that 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;

Sec. 51(3) of the Act states that if 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,

Division of share of predeceased child of intestate leaving lineal

descendants

Sec. 53 of the Act states that 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.

Proviso to the above section states 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.

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.

Division of property where intestate leaves no lineal descendant but

leaves a widow or widower or a widow or widower of any lineal descendant

Sec. 54 of the Act provides that if 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;

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 in 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 ;

(e) If there are do relatives entitled to the residue under clause (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.

Division of property where intestate leaves neither lineal descendants

nor a widow or widower nor a widow of any lineal descendant

According to Sec. 55 if a Parsi dies leaving neither lineal descendants

nor a widow or widower nor a widow for widower of any lineal descendants,

his or her next-of-kin, in the order set forth in Part II of Schedule II, 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 each male

and female standing in the same degree of propinquity shall receive equal

shares.

Division of property where there is no relative entitled to succeed under

the provisions of this Chapter

Sec. 56 of the Act states that 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.

TOPIC IV

TESTAMENTARY SUCCESSION

Part VI of the Act deals with Testamentary Succession. The section

applying the provisions of this Part relating to Wills to a class of wills made by

Hindu, Buddhist, Sikh or Jains is really in the nature of a proviso to sec. 58

which bars the application of this Part to above mentioned communities. It

applies the provisions mentioned in Schedule III, subject to the restriction

therein to the Wills and Codicils made by the above mentioned communities.

It is divided into 23 Chapters. It contains Section 57 to 191

Application of certain provisions of Part to a class of wills made by

Hindus, etc

Sec. 57 of the Act states that 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; and

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

General application of Part

Sec. 58(1) states that 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.

Sec. 58(2) provides that 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 India applicable to all cases of testamentary succession.

TOPIC V

WILLS AND CODICILS

Person capable of making wills

Sec. 59 provides that every person of Sound mind not being a minor

may dispose of his property by Will.

Explanation I to Sec. 59(1) a married woman may dispose by Will of

any property which she could alienate by her own act during her life.

Explanation II to Sec. 59(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 III to Sec. 59(3) a person who is ordinarily insane may

make a Will during all interval in which he is of sound mind.

Explanation IV to Sec. 59(4) no person call make a Will while he is ill

cub a state of whether arising from intoxication or from illness or from any

other cause, that he does not know what he is 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 he does not

understand the nature of the instrument, nor the effect of its

provisions. This instrument is not a valid will.

(iii) A being 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.

In N. Ramaiah v. Nagaraj

, held sec. 59 makes it clear that any person

can make a will if he or she is of a sound mind and is snot a minor.

Explanation I to sec. 59 clarifies what can be disposed by a will by a married

woman and states that any property which she could alienate by her own act

during her life can be disposed of by will. It follows that a married woman

who cannot alienate a property by her own act during her life, cannot dispose

of the said property by a will.

Testamentary guardian

Sec. 60 of the Act states that a father, whatever his age may be, may by

will appoint a guardian or guardians for his child during minority.

Will obtained by fraud, coercion or importunity

AIR 2001 Kant. 395

Sec. 61 of the Act states that 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.

In Surendra Pal v. Dr. (Mrs.) Saraswati Arora

, held undue influence

may occur through spiritualism. It will be undue influence if powerful minds

seeking to grab property had overawed the testator.

Illustration

(i) A, falsely and knowingly represents to the testator that the testator’s

only child is dead, or that he has done some undutiful act and 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 and deception, prevails upon the testator to bequeath a

legacy to him. The bequest is void.

(iii) A, being a prisoner by lawful authority, makes his will, the will is not

invalid by reason of the imprisonment.

(iv) A threatens to shoot B, or to burn his house or to cause him to be

arrested on a criminal charge, unless he makes a bequest in favour of

C. B, in consequence, makes a bequest it, favour of c. The bequest is

void, the making of it having been caused by coercion.

(v) A, being of sufficient intellect, if undisturbed by the influence of

others, to make a will yet being so much under the control of B that

he is not a free agent, makes a will , dictated by B. It appears that he

would not have executed the will but for the fear of B. The will is

invalid.

(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.

AIR 1974 SC 1999

Will may be revoked or altered

According to Sec. 62, 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.

TOPIC VI

EXECUTION OF UNPRIVILEGED WILLS

Part VI Chapter III of the Act deals with Execution of Unprivileged

Wills

Execution of unprivileged wills

Sec. 63 of the Act states that every testator, not being a soldier

employed in an expedition nor engaged in actual warfare, 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.

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.

In K.N.C.O.I. Devi v. Khumumchan Biswasakha

, it has been found

that the testator had a free disposing state of mind and he executed the deed

which was duly attested by the witnesses and that the suspicious circumstances

though suggested by the learned counsel for the appellants had been clearly

dispelled.

AIR 2000 Gau. 69

In Biswanath v. Pahad Singh

, held mere putting of thumb impression

by the testator does not mean that he was illiterate. Nor there can be

presumption anything about his physical or mental condition.

In V. Thanikachalam v. J. Radha Krishnan

, held to prove true and

valid execution and attestation, it must be established that both the testatrix

and attestors were present at the time of execution and the attestor saw signing

the will by the testatrix and the testatrix also saw the attestors signing the will.

These things are clear absent in this case.

Incorporation of papers by reference

Sec. 64 of the Act states that 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.

TOPIC VII

PRIVILEGED WILLS

Chapter IV of Part VI of the Act deals with Privileged Wills

Privileged wills

Sec. 65 of the Act provides that 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 can make a privileged will.

AIR 2001 Ori. 10

2000 (Suppl.) R.D. 713 at 719 (Mad).

(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.

Mode of making, and rules for executing, privileged wills

Sec. 66(1) of the Act states that privileged wills may be in writing, or

may be made by word of mouth.

Sec. 66(2) states that 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.

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 non-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, 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, 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, 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.

TOPIC VIII

ATTESTATION, REVOCATION, ALTERATION AND

REVIVAL OF WILLS

Part VI Chapter V deals with the Attestation, Revocation, Alteration and

Revival of Wills

Effect of gift to attesting witness

Sec. 67 of the Act states that 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 to Sec. 67 states that a legatee under a will does not lose his

legacy by attesting a codicil that confirms the will.

Witness not disqualified by interest or by being executor

Sec. 67 of the Act states that 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.

Revocation of will by testator’s marriage

Sec. 69 of the Act states that 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 to Sec. 69 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.

Revocation of unprivileged will or codicil

Sec. 70 of the Act states that 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. This 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.

In Cherichi v. Ittianam

, held Sec 70 of the Act deals with revocation

of the will by burning, tearing or otherwise destroying the same by the testator

or by same person in his presence and by his direction with the intention of

revoking the same. But merely because the will is not forthcoming, no

presumption can be drawn that the testator would have destroyed the will.

There must be positive evidence to show that the will was destroyed

Effect of obliteration, interlineations or alteration in unprivileged will

Sec. 71 of the Act provides that 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.

Proviso to section states 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.

Revocation of privileged will or codicil

Sec. 72 of the Act provides that 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 to Sec. 72 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

AIR 2001 Ker. 184

the time of doing that act be in a situation which entitles him to make a

privileged will.

Revival of unprivileged will

Sec. 73(1) of the Act provides that 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.

Sec. 73(2) of the Act provides that 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.

TOPIC IX

CONSTRUCTION OF WILLS

Wording of Will

Sec. 74 of the Act provides that 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.

In Maj. Gen. Rajender Singh v. S. Manjit Singh

, held the rule of

construction in the case of will is that the court has to find out the meaning of

the will vis-à-vis the intention of the testator from the language used, taking

the whole of the document together. In matters of construction of wills,

decisions in other cases, do not and cannot afford sufficient guidance. It is not

proper to interpret a will by searching for other cases.

Inquiries to determine questions as to object or subject of will

Sec. 75 of the Act provides that 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.

AIR 2001 Del 15 (FB)

(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.

Misnomer or misdiscription of object

Sec. 76(1) of the Act states that 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.

Sec. 76(2) of the Act states that 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 mentions one twice over omitting another altogether. The

one whose name is not mentioned will take a share with the others.

(vi) The testator bequeaths “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 he survives the testator, receive a legacy of

1,000 rupees.

When words may be supplied

By virtue of Sec.77 of the Act, 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.

Rejection of erroneous particulars is description of subject

By virtue of Sec.78 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.

When part of description may not be rejected as erroneous

Sec. 79 of the Act states that 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 to Sec.79 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 been 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 marshlands lying in L as were in the

occupation of X shall alone pass by the bequest.

Extrinsic evidence admissible in cases of patent ambiguity

Sec. 80 of the Act states that 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.

Extrinsic evidence inadmissible in case of patent ambiguity or ambiguity

or deficiency

Sec. 81 of the Act provides that 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 and 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.

Meaning of clause to be collected from entire will

Sec. 82 of the Act provides that 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 B; it appearing from

the bequest to B that the testator meant to use in a restricted sense the

words in which he describes what he gives to A.

(ii) Where a testator having an estate, one Part of which is called Black

Acre, bequeaths the whole of his estate to A, and in another part of

his will bequeaths Black Acre to B, the latter bequest is to be read as

an exception our of the first as if he had said “I give Black Acre to

and all the rest of my estate to A”.

When words my be understood in restricted sense, and when in sense

wider than usual

Sec. 83 of the Act provides that 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 marshlands in L” are

restricted by the gift to A. A takes the whole of the farm in the

occupation of B, 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.

Which of two possible constructions preferred

Sec. 84 of the Act provides that 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.

No part rejected, if it can be reasonably construed

Sec. 85 of the Act provides that no part of a will shall be rejected as

destitute of meaning if it is possible to put a reasonable construction upon it.

Interpretation of words repeated in different parts of will

Sec. 86 of the Act provides that 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.

Testator’s intention to be effectuated as far as possible

Sec. 87 of the Act provides that 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 118, but it will take effect so far as regards the gift to C D.

The last of two inconsistent clauses prevails

Sec. 88 of the Act provides that 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.

Will or bequest void for uncertainty

Sec. 89 of the Act provides that 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.

Words describing subject refer to property answering description at

testator’s death

Sec. 90 provides that 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.

Power of appointment executed by general bequest

Sec. 91 provides that 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.

Implied gift to objects of power in default of appointment

Sec. 92 provides that 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 she

shall appoint. The widow dies without having made any appointment. The

fund will be divided equally among the children lies.

Bequest to “heir” etc. of particular person without qualifying terms

Sec. 93 provides that 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.

Bequest to “representatives”, etc., of particular person

Sec. 94 provides that 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 he 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.

Bequest without words of limitation

Sec. 95 provides that 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.

Bequest in alternative

Sec. 96 provides that 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 A’s 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.

Effect of words describing a class added to bequest to person:

Sec. 97 of the Act provides that 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.

Bequest to class of persons under general description only

Sec. 98 of the Act provides that 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.

Construction of terms

Sec. 99 states that 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;

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 “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?

Words expressing relationship denote only legitimate relatives or failing

such relatives reputed legitimate

Sec. 100 of the Act provides that 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 niece, 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 will take a share in the legacy along with the legitimate children.

(iv) A leaves a legacy to “the children of B”, B is dead and has left none

but illegitimate children. All those who had at the date of the will

acquired the reputation of being the children of B are objects of the

gift.

(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 had acquired at the date of the will the reputation of

being the child of A by the woman designated. 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 wife. The bequest is

void

(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.

Rules Of construction where will purports to make two bequests to same

person

Sec. 101 of the Act provides that 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 same 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 the 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.

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 to Sec.101 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 11,000 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 11,000 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.

Constitution of residuary legatee

Sec. 102 of the Act provides that 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 he 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 B to do, and keep the residue for

her own use and pleasure”.

B is constituted the residuary legatee.

(iii) A bequeaths all his property to B, except certain stocks and funds,

which he bequeaths to C, B is the residuary legatee.

Property to which residuary legatee entitled

Sec. 103 of the Act states that 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 date 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.

Time of vesting legacy in general terms

Sec. 104 of the Act states that 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.

In what case legacy lapses

Sec. 105(1) of the Act states that 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.

Sec. 105(2) states that 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 dies

before the testator; it legacy lapses.

(ii) A bequest is made to A and his children. A dies 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 his 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 B 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.

Legacy does lapse it one of two joint legatees die before testor

Sec. 106 of the Act states that 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.

Effect of words showing testator’s intention to give distinct shares

Sec. 107 of the Act states that if legacy is given to legatees in words

which show that the testator intended to give them, distinct shares 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.

When lapsed share goes as indisposed of

Sec. 108 states that 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.

When bequest to testator’s child or lineal descendant does not lapse on

his death in testator’s lifetime

Sec. 109 of the Act states that 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 he 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.

Bequest to A for benefit of B does not lapse by A’s death

According to Sec. 110 if 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.

Survivorship in case of bequest to described class

According to Sec. 111 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 to section states that 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

B 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.

TOPIC IX

VOID BEQUESTS

Bequest to person by particular description who is not in existence

testator’s death

According to Sec. 112 where a bequest is made to a person by particular

description, and there is no person in existence at the testator’s death who

answers the description, the bequest is void.

Exception to section states that 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.

Bequest to person not in existence at testator’s death subject to prior

bequest

According to Sec. 113 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.

Rule against perpetuity

According to Sec. 114 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.

Bequest to a class of persons some of whom may come under rules in

Sections 113 and 114

Sec. 115 of the Act states that 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 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’s decease, some of whom may not attain the age of 25 until

more than 18 years have elapsed after the decease of A. The bequest

to A’s children, therefore, is inoperative as to any child born after the

testator’s death, and in regard to those who do not attain the age of

25 within 18 years after A’s death, but is operative in regard to the

other children of A.

(ii) A fund is bequeathed to A for his life, and after his death to B, C, D

and all other children of A who shall attain the age of 25. B, C, D

are children of A living at the testator’s decease. In all other respects

the case is the same as that supposed in Illustration (i). (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).

Bequest to take effect on failure of prior bequest

Sec. 116 of the Act states that 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.

Effect of direction for accumulation

Sec. 117(1) of the Act states that 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.

Sec. 117(2) of the Act states that 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.

Bequest to religious or charitable uses

Sec. 118 of the Act states that 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.

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.

TOPIC XI

THE VESTING OF LEGACIES

Date of vesting of legacy when payment or possession postponed

Sec. 119(1) of the Act states that 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 to this states that 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

(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.

Date of vesting when legacy contingent upon specified certain event

By virtue of Sec. 120(1) of the Act a legacy bequeathed in case a

specified uncertain event shall happen does not vest until that event happens.

By virtue of Sec. 120(2) of the Act a legacy bequeathed in case a

specified uncertain event shall not happen does not vest until the happening of

that event becomes impossible.

By virtue of Sec. 120(3) of the Act in either case, until the condition has

been fulfilled, the interest of the legatee is called contingent.

Exception to section states that 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 he shall attain the age

of 18”, or “when he shall attain the age of 18”. A’s interest in the

legacy is contingent until the condition is fulfilled by his attaining

that age ‘

(iii) An estate is bequeathed to A for life, and after his death to B if B

shall then be living; but if B shall not be then living to C. A, B and

C survive the testator. B and C each 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

(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 he 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 he arrives at that age. The legacy is

contingent.

Vesting of interest in bequest to such members of a class as shall have

attained particular age

By virtue of Sec.121of the Act 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.

TOPIC XI

ONOROUS BEQUESTS

Onorous bequests

Sec. 122 of the Act states that 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).

One of two Separate and Independent, bequests to same person may be

accepted, and other refused

Sec. 123 of the Act provides that if 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.

TOPIC XII

CONTINGENT BEQUESTS

Bequest contingent upon specified uncertain event, no than being

mentioned for its occurrence

Sec. 124 of the Act states that 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”.

Bequest to such certain Persons as shall be surviving at some period not

specified

Sec. 125 of the Act provides that 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.

a. (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.

TOPIC XIII

CONDITIONAL BEQUESTS

Bequest upon impossible condition

Sec. 126 of the Act provides that a bequest upon all impossible

condition is void.

Illustrations

(i) An estate is bequeathed to A on condition that he shall walk 100

miles in an hour. The bequest is void.

(ii) A bequeaths 500 rupees to B on condition that he shall marry A’s

daughter. A’s daughter was dead at the date of the will. The

bequest is void.

Bequest upon illegal or immoral condition

Sec. 127 of the Act provides that 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.

Fulfillment of condition precedent to vesting of legacy

Sec. 128 of the Act provides that if 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 he shall marry with the

consent of B, C and D. A marries in the lifetime of B, C and D with

the consent of B and C only. A has not fulfilled the condition.

(iv) A legacy is bequeathed to A on condition that he shall marry with the

consent of B, C and 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 he 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.

Bequest to A and on failure of prior bequest to B

Sec. 129 provides that if 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 he should neglect to do so, to C. B dies in the testator

lifetime. The bequest to C takes effect.

When second bequest not to take effect on failure of first

Sec. 130 provides that if 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.

Bequest over, conditional upon happening or not -happening of

specified uncertain event

Sec. 131(1) of the Act provides that 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.

Sec. 131(2) of the Act provides that 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 he 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.

Condition must be strictly fulfilled

Sec. 132 of the Act provides that 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 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.

Original bequest not affected by invalidity of second

Sec. 133 of the Act provides that 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.

Bequest conditional that it shall cease to have effect in CAE a specified

uncertain event shall happen, or not happen

Sec. 134 of the Act provides that 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. 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.

Such condition must not be invalid under section 120

Sec. 135 of the Act provides that 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.

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

Sec. 136 of the Act provides that 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.

Performance of condition, precedent or subsequent, within specified

time. Further time in case of fraud

Sec. 137 of the Act provides that 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.

TOPIC XIV

BEQUESTS WITH DIRECTIONS AS TO

APPLICATION OR ENJOYMENT

Direction that fund be employed in particular manner following

absolutely bequest of same to or for benefit of any person

Sec. 138 of the Act provides that 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.

Direction that mode of enjoyment of absolute bequest is to be restricted,

to secure specified benefit for legatee

Sec. 139 provides that 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.

Bequest of fund for certain purposes, some of which cannot be fulfilled

Sec. 140 provides that 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.

TOPIC XV

BEQUESTS TO AN EXECUTOR

Legatee named as executor cannot take unless he shows intention to act

as executor

By virtue of Sec 141 of the Act 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.

TOPIC XVI

SPECIFIC LEGACEES

Specific legacies are included in chapter 16. This chapter

contains sections 142 to 149.

Specific legacy defined

Sec. 142 of the Act provides that 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.

Bequest of certain sum where stocks, etc., in which invested are

described

Sec. 143 of the Act provides that 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.

Bequest of stock where testator had, at, the date of equal or greater’

amount of stock of same kind

Sec. 144 of the Act provides that 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.

The legacy is not specific.

Bequest of money Where not payable until part of testator’s Property

disposed of in certain way

Sec. 145 of the Act provides that 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 shall be paid

as soon as A’s property in India shall be realized in England. The legacy is not

specific,

When enumerated articles not deemed specifically bequeathed

Sec. 146 of the Act provides that 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.

Retention, in form, of specific bequest to several persons in succession

Sec. 147 provides that 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.

Sale and investment of proceeds of property bequeathed to two or more

persons in succession

Sec. 148 of the Act states that 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.

Where deficiency of assets to pay legacies, specific legacy not to abate

with general legacies

Sec. 149 of the Act states that if There is a deficiency of assets to pay

legacies, a specific legacy is not liable to abate with the general legacies.

TOPIC XVII

DEMONSTRATIVE LAGACIES

Demonstrative legacy defined

Sec. 150 of the Act states that 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 to Sec. 150 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.

Order of payment when legacy directed to be paid out of fund the

subject of specific legacy

Sec. 151 of the Act states that 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.

TOPIC XVIII

ADEMPTION OF LEGACIES

Ademption explained

Sec. 152 of the Act states that 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.

Non-ademption of demonstrative legacy

Sec. 153 of the Act states that 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.

Ademption of specific bequest of right to receive something from third

party

Sec. 154 of the Act states that 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.

Ademption pro Tanto by testator’s receipt of part of entire thing

specifically bequeathed

Sec. 155 of the Act states that 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.

Ademption pro tanto by testator’s receipt of portion of entire fund of

which portion has been specifically bequeathed

Sec. 156 of the Act states that 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.

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

Sec. 157 of the Act states that 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 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.

Ademption where stock, specially bequeathed, does not exist at

testator’s death

Sec. 158 of the Act states that 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.

Ademption pro tanto where stock, specifically bequeathed exists in part

only at testator’s death

Sec. 159 of the Act states that if 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.

Non-ademption of specific bequest of goods described as connected with

certain place, by reason of removal

According to Sec. 160 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.

When removal of thing bequeathed does not constitute ademption

Sec. 161 of the Act states that 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.

When thing bequeathed is a valuable to be received b testator from third

person; and testator himself or his representative, receive it

Sec. 162 of the Act provides that 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.

Change by operation of law of subject of specific bequest between date

of will and testator’s death

Sec. 163 of the Act states that 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.

Change of subject without testator’s knowledge

Sec. 164 of the Act states that if 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.

Stock specifically bequeathed lent to third party on condition that it be

replaced

Sec. 165 of the Act states that if 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.

Stock specifically bequeathed sold but replaced, and belonging to

testator at his death

Sec. 166 provides that if 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.

TOPIC XIX

PAYMENT OF LIABILITIES IN RESPECT OF THE

SUBJECT OF A BEQUEST

Provisions regarding the payment of liabilities in respect of the

subject of a bequest are included in chapter 17 of the Act. This

chapter contains sections 167 to 170.

Non-liability of executor to exonerate specific legatees

Sec. 167(1) of the Act says that 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.

Sec. 167(2) provides that 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 to section states that 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.

Completion of testator’s tide to things bequeathed to be at cost of his

estate

Sec. 168 provides that if 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.

Exoneration of legatee’s immovable property for which land-revenue or

rent payable periodically

Sec. 169 provides that 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.

Exoneration of specific legatee’s stock in joint-stock company

Sec. 170of the Act provides that 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.

TOPIC XX

BEQUESTS OF THINGS DESCRIBED IN GENERAL TERMS

Bequest of thing described in general terms

Sec. 171 of the Act provides that 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.

TOPIC XXI

BEQUESTS OF THE INTEREST OR PRODUCE OF A FUND

Bequest of interest or produce of fund

Sec. 172 of the Act provides that 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.

In Abida Ali v. Alhaji

, the Court observed that though gift may be

in the form of a gift or income, if the time has not been limited and

there are no restrictions in the gift, the gift will include the whole

estate.

Topic XXII

BEQUESTS OF ANNUITIES

Annuity created by will payable for life only unless contrary intention

appears by will

Sec. 173 of the Act provides that 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

AIR 1942 PC 69.

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.

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

Sec. 174 of the Act provides that 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.

Abatement of annuity

Sec. 175 of the Act provides that 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.

Where gift of annuity and residuary gift, whole annuity to be first

satisfied

Sec. 176 of the Act provides that 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.

TOPIC XXIII

LEGACIES TO CREDITORS AND PORTIONERS

Creditor prima facie entitled to legacy as well as debts

Sec. 177 of the Act provides that 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.

Child prima facie entitled to legacy as portion

Sec. 178 of the Act states that 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

No ademption by subsequent provision for legatee

Sec. 179 of the Act states that 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.

TOPIC XXIV

ELECTION

Circumstances in which election takes place

Sec. 180 of the Act states that 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.

Devolution of interest relinquished by owner

Sec. 181 of the Act says that 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.

Testator’s belief as to his ownership immaterial

Sec. 182 of the Act states that the provisions of Sections. 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 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.

Bequest for man’s benefit how regarded for purpose of election

Sec. 183 of the Act states that 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 his farm of

Sultanpur Kurds in opposition to it.

Person deriving benefit indirectly not put to election

Sec. 184 of the Act states that 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.

Person taking in individual capacity under will may in other character

elect to take in opposition

Sec. 185 of the Act states that 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.

Exception to provisions of last six sections

Sec. 186 of the Act states that 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.

When acceptance of benefit given by will constitutes elections to take

under will

Sec. 187 of the Act states that 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.

Circumstances in which knowledge or waiver is presumed or inferred

By virtue of Sec. 188(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.

By virtue of Sec. 188(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.

When testator’s representatives may call upon legatee to elect

According to Sec. 189 if the legatee does not, within one year after the

death of testator, signify to the testator’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.

Postponement of election in case of disability

According to Sec. 190 in case of disability the election shall be

postponed until the disability ceases, or until the election is made by some

competent authority.

TOPIC XXV

GIFTS IN CONTEMPLATION OF DEATH

Chapter 23 of the Act deals with Property transferable by gift

made in contemplation of death. This chpter only one section. That is section

191. Accordingly a man may dispose, by gift made in contemplation of death,

of any movable property which he could dispose of by will.

Sec 191(2) of the

Act states that 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.

Sec 191(3) of the Act states that 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;

Sec 191(1) of the Act.

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.

TOPIC XXVI

SUCCESSION CERTIFICATES

Part Ten of the Act deals with Succession Certificates. This part

contains sections 370 to 390.

Restriction on grant of certificates under this Part

Sec 370 (1)of the Act states that 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:

Proviso to Sec 370 (1) says 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.

Sec 370 (2) of the Act States that 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 of the

United Kingdom on the revenues of India;

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 State Government may, by notification

in the Official Gazette, declare to be a security for the purpose of this

Part.

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.

Application for certificates

Sec 372(1) of the Act provides that 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;

respective residences.

(d) The right in which the petitioner claims;

Sec 371 of the Act.

(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.

Sec 372(2) of the Act says that 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.

Sec 372(3) of the Act provides that 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.

In Murari v. Tata Rammohan Rao

, held in presence of intricate

questions which cannot be gone into summary proceedings, the party which

has prima facie best title should be granted a certificate and the objectors

directed to establish his title in Civil Court.

Procedure on application

Sec 373(1) of the Act provides that 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.

Sec 373(2) states that 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.

Sec 373(3) states that 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.

1997 (2) MLJ 524

Sec 373(4) states that 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.

Contents of certificate

Sec 374 of the Act states that 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.

the securities or any of them.

Requisition of security from grantee of certificate

Sec 375(1) says that 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.

Sec 375(2) states that 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.

Extension of certificate

Sec 376(1) of the Act provides that 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.

Sec 376(2) states that 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.

Forms of certificate and extended certificate

By virtue of Sec 377 of the Act certificates shall be granted and

extensions of certificates shall be made, as nearly as circumstances admit, in

the forms set forms in Schedule VIII.

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.

Mode of collecting Court-fees on certificates

Sec 379(1) of the Act provides that 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.

According to Sec 379(2) if such an 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.

Sec 379(3) provides that any sum received under sub-section (1) and not

expended under sub-section (2) shall be refunded to the person who deposited

it.

Local extent of certificate: -

Sec 380 provides that a certificate under this Part shall have effect

throughout India

This section shall apply in India 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.

It shall also apply in India after the separation of Pakistan from India to

certificates granted before the date of the separation, of after that date in

Sec 378 of the Act.

proceedings pending at that date in any of the territories, which on that date

constituted Pakistan.

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.

Effect of certificate granted or extended by Indian representative in

foreign State and in certain other cases

Sec 382 of the Act states that where a certificate in the form, as nearly as

circumstances admit, of Schedule VII-

(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

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.

Revocation of certificate

By virtue of Sec 383 of the Act 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;

Sec 381of the Act.

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.

Appeal

Sec 384(1) of the Act provides that 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.

According to Sec 384(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).

Sec 384(3) provides that 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.

Effect on certificate of previous certificate, probates or letters of

administration

Sec 385(2) of the Act says that 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.

Validation of certain payments made in good faith to holder of invalid

certificate

Sec 386 of the Act states that 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.

Effect of decisions under this Act, and liability of holder of certificate

there under

By virtue of Sec 387 of the Act 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 therefore to the person lawfully entitled

thereto.

Investiture of inferior Courts with jurisdiction of District Court for

purpose of this Act

Sec 388(1) of the Act states that 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.

Sec 388(1) provides that 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:

Proviso to Sec 388(1) state 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.

Sec 388(3) states that 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.

By virtue of Sec 388(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.

Sec 388(5) states that a notification under sub-section (1) may specify

any inferior Court specially or any class of such Courts in any local area.

Sec 388(6) states that 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.

Surrender of superseded and invalid certificate

Sec 389(1) of the Act states that 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.

Sec 389(2) states that if he willfully 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.

Provision with respect to certificates under Bombay Regulation No. VIII

of 1827

Sec 390 of the Act states that 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 therefore, 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.