THE INDIAN SUCCESSION ACT, 1925
PART I - Preliminary
(1) Short title -Sec.1
This Act may be called the Indian Succession Act, 1925.
(2) Definitions -Sec.2
In this Act, unless there is anything repugnant in the subject or context -
a. "administrator" means a person appointed by competent authority to administer the estate of a deceased person when there is no executor;
b. "codicil" means an instrument made in relation to a will, and planning, altering or adding to its dispersions and shall be deemed to form part of the will:
(bb) "District Judge" means the Judge of the principal Civil Court of original jurisdiction:
c. "executor" means a person to whom the execution of the last will of a deceased person is by, the testator's appointment, confined;
(cc) "India" means the territory of India excluding the State of Jammu and Kashmir;
d. "Indian Christian" means a native of India who is, or in good faith claims to be, of unmixed Asiatic descent and who professes any form of the Christian religion;
e. "minor" means any person subject to the Indian Majority Act, 1875, who has not attain his majority within the meaning of that Act, and any other person who has not completed the age of eighteen years; and "minority" means the status of any such person;
f. "probate" means the copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator;
g. "State" includes any division of Indian having a Court of the last resort; and
h. "will" means the legal declaration of the intention of the testator with respect to his property which is desires to be carried into effect after his death.
PART II - Of Domicile
(3) Application of part-Sec.4
This part shall not apply if the deceased was a Hindu, Mohammedan, Buddhist, Sikh or Jaina.
(4) Law regulating succession to deceased person's immovable and movable property, respectively -Sec.5
i. Succession to the immovable property in India of a person deceased shall be regulated by the law of India, wherever such person may have had his domicile at the time of his death.
ii. Succession to the movable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death.
(5) One domicile only affects succession to movables -Sec.6
A person can have only one domicile for the purpose of the succession to his movable property.
(6) Domicile of origin of person of legitimate birth -Sec.7
The Domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled; or, if he is a posthumous child in the country in which his father was domiciled at the time of the father's death.
(7) Domicile of origin of illegitimate child -Sec.8
The domicile of origin of an illegitimate child in the country which, at the time of his birth, his mother was domiciled.
(8) Continuance of domicile of origin -Sec.9
The domicile of origin prevails until a new domicile has been acquired.
(9) Acquisition of new domicile -Sec.10
A man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.
10. Special mode of acquiring domicile in India -Sec.11
Any person may acquire a domicile in India by making and depositing in some office in India, appointed in this behalf by the State Government a declaration in writing under his hand of desire to acquire such domicile; provided that he has been resident in India for one year immediately proceeding the time of his making such declaration.
11. Domicile not acquired by residence as representative of foreign Government, or as part of his family -Sec.12
A person who is appointed by the Government of one country to be its ambassador, or other representative in another country does not acquire a domicile in the latter country by reason only of residing there in pursuance of his appointment; nor does any other person acquire such domicile by reason only of residing with such first-mentioned person as part of his family, or as a servant.
12. Continuance of new domicile -Sec.13
A new domicile continues until the former has been resumed or another has been acquired.
13. Minors domicile -Sec.14
The domicile of a minor follows the domicile of the part from whom he derived his domicile of origin.
14. Domicile acquired by woman on marriage -Sec.15
By marriage a woman acquires the domicile of her husband, if she had not the same domicile before.
15. Wife’s domicile during marriage -Sec.16
A wife’s domicile during her marriage follows the domicile of her husband.
16. Minor’s acquisition of new domicile -Sec.17
Save as herein before otherwise provided in this Part, a person cannot, during minority, acquire a new domicile.
17. Lunatic’s acquisition of new domicile -Sec.18
An insane person cannot acquire a new domicile in any other way than by his domicile following the domicile of another person.
18. Succession to movable property in India in the absence of proof of domicile elsewhere -Sec.19
If a person dies leaving movable property in India, in the absence of proof of any domicile elsewhere, succession to the property is regulated by the law of India.
PART III Marriage
19. Interest and powers not acquired nor lost by marriage -Sec.20
(1) No person shall, by marriage, acquire any interest in the property of the person whom he or she married or become incapable of doing any act in respect of his or her own property which he or she could have done if unmarried.
This section
a. shall not apply to any marriage contracted before the first day of January, 1866;
b. shall not apply and shall be deemed never to have applied, to any marriage, one or both or the parties to which professed at the time of the marriage the Hindu, Mohammadan, Buddhist, Sikh or Jaina religion.
20. Effect of marriage between the person domiciled and one not domiciled in India -Sec.21
If a person whose domicile is not in India marries in India a person whose domicile is in India, neither party acquires by the marriage any parts in respect of any property of the other party not comprised in a settle made previous to the marriage, which he or she would not acquire thereby if both were domicile in India at the time of the marriage.
21. Settlement of minors property in contemplation of marriage -Sec.22
i. The property of a minor may be settled in contemplation of marriage, provided the settlement is made by the minor with the approbation of the minors father, or, if the father is dead or absent from India, with the approbation of the High Court.
ii. Nothing is this section or in Section 21 shall apply to any will made or intestacy occurring before the first day of January, 1866, or to intestate or testamentary succession to the property of any Hindu, Mohammadan, Buddhist, Sikh or Jaina.
Chapter I -Introductory
22. Application of certain provisions of Part to a class of wills made by Hindus etc. -Sec.57
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 and 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 State Government of Bengal or 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 or limits so far as relates to immovable property situated within those territories or limits; and Â
c. to all wills and codicils made by the Hindus, Buddhist, Sikh or Jaina on or after the first day of January, 1917, to which those provisions are not applied by clauses (a) and (b): Â
Provided that marriages shall not revoke any such will or codicil.
23. General application of Part -Sec.58
i. The provisions of this Part shall not apply to testamentary succession to the property of any Mohammadan nor, save as provided by Section 57, to testamentary succession to the property of any Hindu, Buddhist or Jaina; nor shall they apply to any will made before the first day of January, 1866. Â
ii. 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 testamentary succession.
CHAPTER II
Of Wills and Codicils
24. Person capable of making wills -Sec.59
Every person of sound mind not being minor may dispose of his property by will.
25. Testamentary guardian -Sec.60
A father, whatever his age may be, may by will appoint a guardian or guardians for his child during minority.
26. Will obtained by fraud, coercion or importunity -Sec.61
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.
27. Will may be revoked or altered -Sec.62
A will is liable to be revoked or altered by the maker of it any time when he is competent to dispose of his property by will.
CHAPTER III
Of the Execution of Unprivileged Wills
28. Execution of unprivileged wills -Sec.63
Every testator, not being a soldier employed in an expedition or 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 it shall be some person in his presence and by his direction. Â
b. The signature of mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as will.
c. The will shall be attested by two or more witnesses, each of who has seen the testator sign or affix his mark to the will or has been some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement 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.
29. Incorporation of papers by reference -Sec.64
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.
Part VI- Testamentary Succession
CHAPTER IV
Of Privileged Wills
30. Privileged wills -Sec.65
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.
31. Mode of making, and rules for executing, privileged wills -Sec.66
Privileged wills may be in writing, or may be made by word of mouth.
The execution of privileged wills shall be governed by the following rules: -
a. the will may be written wholly by the testator, with his own hand in such case it need not be signed or attested;
b. it may be written wholly or in part by another person, and signed by the testator. In such case it need not be attested;
c. if the instrument purporting to be a will is written wholly or in part by another person and is not signed by the testator, it shall be deemed to be his will, if it is shown that it was written by the testator’s direction or that he recognised 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 circumstances, be invalid provided that his non-execution of it can be reasonably described to some cause other than the abandonment of the testamentary intentions expressed in the instrument.
e. if the soldier, airman or mariner has written instruction 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 read 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 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.
CHAPTER V
Of the attestation, Revocation, Alteration and Revival of Wills
32. Effect of gift to attesting witness -Sec.67
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 the wife or husband of such person, or any person claiming under either of them.
33. Witness not disqualified by interest or by being executor -Sec.68
No person by reason of interest in, or of his being an executor, of a will, shall be disqualified as a witness to prove the execution of the will or to prove the validity or invalidity thereof.
34. Revocation of will by testator, marriage -Sec.69
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.
35. Revocation of unprivileged will or codicil -Sec.70
No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise then 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 be 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.
36. Effects of obliteration, interlineations or alteration in unprivileged -Sec.71
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 undiscernibly, unless such alteration has been executed in like manner as herein before is required for the execution of the will:
Provided that the will as so altered, shall be deemed to be duly executed if the signature of the testator and the subscription of the witness 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.
37. Revocation of privileged will or codicil -Sec.72
A privileged will or codicil may be revoked by the testator by an unprivileged will or codicil, or by any act expressing an 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.
38. Revival of unprivileged will -Sec.73
i. No unprivileged will or codicil, nor any part thereof, which has been revoked in any manner, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner herein before required, and showing an intention to revive the same.
ii. When any will or codicil, which has been partly revoked and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as has been revoked before the revocation of the whole thereof, unless an intention to the contrary is shown by the will or codicil.
CHAPTER VI
Of the Construction of Wills
39. Wording of will -Sec.74
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 therefore.
40. Inquiries to determine questions as to object or subject of will -Sec.75
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 acknowledged of which may conduce to the right application of the words which the testator has used.
41. Misnomer or mis-description of object -Sec.76
i. Where the words used in a will to designate or describe a legatee or a class of legatees sufficiently show what is meant, an error in the name or description shall not prevent the legacy from taking effect.
ii. A mistake in the name of a legatee may be corrected by a description of him, and a mistake in the description of a legatee may be corrected by the name.
42. When words may be supplied. -Sec.77
Where any word material to the full expression of the meaning has been omitted, it may be supplied by the context.
43. Rejection of erroneous particulars in description of subject -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.
44. When part of description may not be rejected as erroneous -Sec.79
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.
45. Extrinsic evidence admissible in case of patent ambiguity -Sec.80
Where the words of a will are unambiguous, but 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.
46. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency -Sec.81
Where there is an ambiguity or deficiency on the face of a will, no extrinsic evidence as to the intentions of the testator shall be admitted.
47. Meaning of clause to collected from entire will -Sec.82
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.
48. When words may be understood in restricted sense, and when in sense wider than usual -Sec.83
General words may be understood in a restricted sense where it may be collected from the will that the testator meant to use them in a restricted sense: and words may be understood in 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 in such wider sense.
49. Which of two possible construction preferred. -Sec.84
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.
50. No part rejected, if it can be reasonably construed -Sec.85
No part of a will shall be rejected as destitute of meaning, if it is possible to put a reasonable construction upon it.
51. Interpretation of words repeated in different parts of will -Sec.86
If the same words occur in different parts of the same will, they shall be taken to have been used everywhere in the same sense, unless a contrary intention appears.
52. Testator�s intention to effectuated as far as possible -Sec.87
The intention of the testator 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.
53. The last of two inconsistent clauses prevails -Sec.88
Where two clauses of gifts in a will are irreconcilable, so that they cannot possibly stand together, the last shall prevail.
54. Will or bequest void for uncertainty. -Sec.89
A will or bequest not expressive of any definite intention is void for uncertainty.
55. Words describing refer to property answering description at testator’s death. -Sec.90
The description contained in a will of property, the subject of gift, 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.
56. Power of appointment executed by general bequest. -Sec.91
Unless a contrary intention appears by a will, a bequest for 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.
57. Implied gift to objects of power in default of appointment.-Sec.92
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.
58. Bequest to 'heirs', etc., of particular person without qualifying terms.-Sec.93
Where a bequest is made to the heirs or right heirs or relations or nearest relation or family or kindred or nearest of kin or next of-kin of a particular person without any qualifying terms, and the class so designated forms the direct and independent object of the bequest, the property bequeathed 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 independently of such property.
59. Bequest to representatives, etc., of particular person. -Sec.94
Where a bequest is made to the representatives or legal representatives or personal representatives or executors or administrators or 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.
60. Bequest without words of limitation. -Sec.95
Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the will that only a restricted interest was intended for him.
61. Bequest in alternative. -Sec.96
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.
62. Effect of words describing a class added to bequest to person. -Sec.97
Where property is bequeathed to a person and word 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 appears by the will.
63. Bequest to class of persons under general description only. -Sec.98
Where a bequest is made to 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.
64. Construction of terms. -Sec.99
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 whose grand children are spoken of;
c. the words nephews and nieces apply only to children of brothers or sisters;
65. Words expressing relationship denote only legitimate relative or failing such relatives reputed legitimate.-Sec.100
In the absence of any intimation to the contrary in the will, the word child, the word son, the word daughter or any word which 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.
66. Rules of construction where will purports to make two bequests to same person. -Sec.10
Where a will purports to make two bequests to the same person, and a question arises whether the testator intended to make the second bequest instead of or in addition to the first: if there is nothing in the will to show that he intended the 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 in 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;
c. where two legacies of unequal amount are given to same person in the same will, or in the same codicil, the legatee is entitled to both.
d. where two legacies, whether equal or unequal in amount, are given to the 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.
Chapter VII
Of Void Bequests
67. Bequest to person by particular description who is not in existence at testators death-Sec.112
Where a bequest is made to a person by a particular description, and there is no person in existence at the testator’s death who answer the description, the bequest is void.
68. Bequest to person not in existence at testator’s death subject to prior bequest -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 it comprises the whole of the remaining interest of the testator in the thing bequeathed.
69. Rule against perpetuity -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 be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.
70. Bequest to a class of persons some of whom may come under rules in Section 113 and 114Â -Sec.115
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 Sections 113 or Section 114, such bequest shall be void in regard to those persons only, and not in regard to the whole class.
71. Bequest to take effect on failure of prior bequest -Sec.116
Where by reason of any of the rules contained in Sections 113 and 114, and bequest in favour of a person or of a class of persons is void in regard to such person or the whole of such class, and bequest contained in the same will and intended to take effect after or upon failure of such prior bequest is also void.
72. Effect of direction for accumulation -Sec.117
i. 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.
ii. 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.
73. Bequest to religious or charitable uses -Sec.118
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.
Chapter VIII
Of the Vesting of Legacies
74. Date of Vesting of legacy when payment or possession postponed -Sec.119
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.
75. Date of vesting when legacy contingent upon specified uncertain event -Sec.120
i. A legacy bequeathed in case a specified uncertain event shall happen does not vest until that event happens.
ii. A legacy bequeathed in case a specified uncertain event shall not happen does not vest until the happening of that event becomes impossible.
iii. In either case, until the condition has been fulfilled, the interest of the legatee is called contingent.
76. Vesting of interest in bequest to such members of a class which shall have attained particular age -Sec.121
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.
Chapter IX
Of Onerous Bequests
77. Onerous bequests -Sec.122
Where a bequest imposes an obligation on the legatee can take nothing by it unless he accepts it fully.
78. One or two separate and independent bequests to same person may be accepted, and other refused-Sec.123
Where a will contains two separate and independent bequests to the same person, the legatee is at liberty to accept one of them and refuse the other, although the former may be beneficial and the latter onerous.
Chapter X
Of Contingent Bequests
79. Bequest contingent upon specified uncertain event, no time being mentioned for its occurrence -Sec.124
Where a legacy is given of 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.
80. Bequest to such of certain persons as shall be surviving at some period not specified -Sec.125
Whether a bequest is made to such of certain persons as shall be surviving at some period, but the exact period is not specified, the legacy shall go to such of them as are alive at the time of payment or distribution, unless a contrary intention appears by the will.
Chapter XI
Of Conditional Bequests
81. Bequest upon impossible condition-Sec.126
A bequest upon an impossible condition is void.
82. Bequest upon illegal or immoral condition-Sec.127
A bequest upon a condition, the fulfillment of which would be contrary to law or to morality, is void.
83. Fulfillment of condition precedent to vesting of legacy -Sec.128
Where a will imposes a condition to be fulfilled before the legatee can take a vested interest in the thing bequeathed, the condition shall be considered to have been fulfilled if it has been substantially complied with.
84. Bequest to A and on failure of prior bequest to B -Sec.129
Where there is a bequest to one person and a bequest of the same thing to another, if the prior bequest shall fail, the second bequest shall take effect upon the failure of the prior bequest although the failure may not have occurred in the manner contemplated by the testator.
85. When second bequest not to take effect on failure of first-Sec.130
Where the will shows an intention that the second bequest shall take effect only in the event of the first bequest failing in a particular manner, the second bequest shall not take effect, unless the prior bequest fails in that particular manner.
86. Bequest over, conditional upon happening or not happening of specified uncertain event -Sec.131
i. 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.
ii. In each case the ulterior bequest is subject to the rules contained in Sections 120, 121,122,123,124,125,126,127,129 and 130.
87. Condition must be strictly fulfilled-Sec.132
An ulterior bequest of the kind contemplated by Section 131 cannot take effect, unless the condition is strictly fulfilled.
88. Original bequest not affected by invalidity of Second -Sec.133
If the ulterior bequest be not valid the original bequest is not affected by it.
89. Bequest conditioned that it shall ceases to have effect in case a specified uncertain event shall happen, or not happen -Sec.134
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.
90. Such condition must not be invalid under Section 120-Sec.135Â
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 one could legally constitute the condition of bequest as contemplated by section 120.
91. 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
Where a bequest is made with a condition added 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.
92. Performance of condition, precedent or subsequent, within specified time. Further time in case of fraud -Sec.137
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 go to 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 requisite to make up for the delay caused by such fraud.
Chapter XII
Of Bequests with directions as to Application or Enjoyment
93. Direction that fund be employed in particular manner following absolute bequest of some to or for benefit of any persona -Sec.138
When a fund is bequeathed absolutely to for the benefit of any person, but the will contains a directions 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.
94. Direction that mode of enjoyment of absolute bequest is to be restricted, to secure specified benefit for legatee -Sec.139
Where a testator absolutely bequeaths a fund, so as to sever it from his own estate, but direct that the mode 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.
95. Bequest of fund for certain purposes, some of which cannot be fulfilled-Sec.140
Where a testator does not absolutely bequeath a fund, so as to severe 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.
Chapter XIII
Of Bequests to an Executor
96. Legatee named as executor cannot take unless he shows intention to act as executor-Sec.141
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.
Chapter XIV
Of Specific Legacies
97. Specific legacy defined-Sec.142
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.
98. Bequest of certain sum where stocks. etc., in which invested are described-Sec.143
Where a certain sum is bequeathed, the legacy is not specified merely because the stock, funds of securities in which it is invested are described in the will.
99. Bequest of stock where testator had, at the date of will equal or greater amount of stock of same kind-Sec.144
Where a bequest is made in general terms of a certain amount of any kind of stock, 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.
100. Bequest of money where not payable until part of testator’s property disposed of in certain way-Sec.145
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.
101. When enumerated articles not deemed specifically bequeathed -Sec.146
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.
102. Retention, in form, of specific bequest to several persons in succession-Sec.147
Where property is specifically bequeathed to two or more person is 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 is continually decreasing.
103. Sale and investment of proceeds of property bequeathed to two or more persons in succession-Sec.148
Where property comprised in 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 be any general rule authorize or direct, and the fund thus constituted shall be enjoyed by the successive legatees according to the terms of the will.
104. Where deficiency of assets to pay legacies, specific legacy not to abate with general legacies-Sec.149
If there is a deficiency of assets to pay legacies, a specific legacy is not liable to abate with the general legacies.
Chapter XV
Of Demonstrative Legacies
105. Demonstrative legacy defined -Sec.150
Where a testator bequeaths 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.
106. Order of payment when legacy directed to be paid out of fund the subject of specific legacy-Sec.151
Where a portion of a fund is specifically bequeathed and a legacy is directed to be paid out of the same fund, the portion specifically bequeathed 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.
Chapter XVI
Of Ademption of Legacies
107. Ademption explained-Sec.152
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 adeemed; that is, it cannot take effect, by reason of the subject-matter having been withdrawn from the operation of the will.
108. Non ademption of demonstrative legacy-Sec.153
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.
109. Ademption of specific bequest of right to receive something from third party-Sec.154
Where the thing specifically bequeathed is the right to receive something of value from a third party, and the testator himself receives it, the bequest is adeemed.
110. Ademption pro tanto by testator's receipt of a part of entire thing specifically bequeathed-Sec.155
The receipt by the testator of a party of an entire thing specifically bequeathed shall operate as an ademption of the legacy to the extent of the sum so received.
111. Ademption pro tanto by testator's receipt of portion of entire fund of which portion has been specifically bequeathed-Sec.156
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.
112. 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
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 receive a portion of the 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 if the demonstrative legacy shall be paid out of the general assets of the testator.
113. Ademption where stock, specifically bequeathed, does not exist at testator's death -Sec.158
Where stock which has been specifically bequeathed does not exist at the testator's death, the legacy is adeemed.
114. Ademption pro tanto where stock, specifically bequeathed, exists in part only at testator's death -Sec.159
Where stock which has been specifically bequeathed exist only in part at the testator's death, the legacy is adeemed so far as regards that part of the stock which has ceased to exist.
115. Non-ademption of specific bequest of goods described as connected with certain place, by reason of removal -Sec.160
A specific bequest of goods under a description connecting them with a certain place is not adeemed by reason that they have been removed from such place from any temporary cause, or by fraud or without the knowledge or sanction of the testator.
116. When removal of thing bequeathed does not constitute ademption-Sec.161
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.
117. When thing bequeathed is a valuable to be received by testator from third person; and testator himself or his representative, receives it-Sec.162
When 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 adeemed.
118. Change by operation of law of subject of specific bequest between date of will and testator's death-Sec.163
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 adeemed by reason of such change.
119. Change of subject without testator's knowledge -Sec.164
Where a thing specifically bequeathed undergoes a change between the date of the will and the testator's death, and the change takes place without the knowledge or sanction of the testator, the legacy is not adeemed.
120. Stock specifically bequeathed lend to third party on condition that it be replaced-Sec.165
Where a stock which has been specifically bequeathed is lend to a third party on condition that it shall be replaced, and it is replaced accordingly, the legacy is not adeemed.
121. Stock specifically bequeathed sold but replaced, and belonging to testator
at his death-Sec.166Â
Where stock specifically bequeathed is sold, and an equal quantity of the same stock is afterwards purchased and belongs to the testator at his death, the legacy is not adeemed.
Chapter XVII
Of the payment of Liabilities in respect of the Subject of a Bequest
122. Non-liability of executor to exonerate specific legatees -Sec.167
i. Where property specifically bequeathed is subject at the death of the testator to any pledge, lien, or incumbrance created by the testator himself or by any person under whom he claims, then, unless a contrary intention appears by the will, the legatee, if he accepts the bequest, shall accept it subject to such pledge or incumbrance, and shall (as between himself and the testator's estate) be liable to make good the amount of such pledge or incumbrance.
ii. A contrary intention shall not be inferred from any direction which the will may contain for the payment of the testator's debt generally.
123. Completion of testator's title to things bequeathed to be at cost of his estate-Sec.168
Where anything is to be done to complete the testator's title to the thing bequeathed,
it is to be done at the cost of the testator's estate.
124. Exoneration or legatee's immovable property for which land revenue or rent payable periodically-Sec.169
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.
125. Exoneration of specific legatee's stock in joint-stock company-Sec.170
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.
Chapter XXI
Of legacies to Creditors and Portioners
126. Creditor prima facie entitled to legacy as well as debt-Sec.177
Where a debtor bequest his 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.
127. Child prima facie entitled to legacy as portion-Sec.178
Where a parent, who is under obligation by a contract to provide a portion for a child, fails to do so, and 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.
128. No ademption by subsequent provision for legatee-Sec.179
No bequest shall be wholly or partially adeemed by a subsequent provision made by settlement or otherwise for the legatee.
Chapter XXII
Of Elections
129. Circumstances in which election takes place-Sec.180
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 later case, he shall give up any benefits which may have been provided for him by the will.
130. Devolution of interest relinquished by owner-Sec.181
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.
131. Testator’s belief as to his ownership immaterial-Sec.182
The provisions of Section 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.
132. Bequest for man’s benefit how regarded for purpose of election-Sec.183
A bequest for a person benefit is, for the purpose of election, the same thing as a bequest made to himself.
133. Person deriving benefit indirectly not put to election-Sec.184
A person taking no benefit directly under a will, but deriving a benefit under it indirectly, is not put to his election.
134. Person taking in individual capacity under will may in other character elect to take in opposition-Sec.185
A person who in his individual capacity takes a benefit under a will may, in other character, elect to take in opposition to the will.
135. Exception to provision of last six sections-Sec.186
Notwithstanding anything contained in Section 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 things, he must relinquish the particular gift, but he is not bound to relinquish any other benefit given to him by his will.
136. When acceptance of benefit given by will constitutes election to take under will-Sec.187
Acceptance of a benefit given by a will constitutes an election by the legatee to take under 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.
137. Circumstances in which knowledge or waiver is presumed or inferred-Sec.188
i. 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.
ii. Such knowledge of waiver of inquiry may be 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 act had not been done.
138. When testator’s representatives may call upon legatee to elect-Sec.189
If the legatee does not, within one year after the death of the testator, signify to the testator�s representatives his intention to confirm or to dissent from the will, the representatives shall upon the expiration of that period, require him to make his election; and, if he does not comply with such requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the will.
139. Postponement of election in case of disability-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.
Chapter XXIII
Of Gifts in Contemplation of Death
140. Property transferable by gift made in contemplation of death-Sec.191
i. A man may dispose, by gift made in contemplation of death, of any movable property which he could dispose of by will.
ii. 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.
iii. 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.
Part VII
Protection of Property of Deceased
(141) Person claiming right to by succession to property of deceased may apply for relief against wrongful possession -Sec.192
1. If any person dies leaving property, movable or immovable, any person claiming a right by succession thereto, or to any portion thereof, may make application to the District Judge of the District where any part of the property is found or situate for relief, either after actual possession has been taken by another person, or when forcible means of seizing possession are apprehended.
2. Any agent, relative or near friend, or the Court of Wards in cases within there cognizance, may in the event of any minor, or any disqualified or absent person being entitled by succession to such property as aforesaid make the like application for relief.
(142) Inquiry made by Judge - Sec.193
The district judge to whom such application is made shall, in the first place, examine the application on oath, and make such further inquiry, if any, as he thinks necessary as to whether there is sufficient ground for believing that the party in possession or taking forcible means for seizing possession has no lawful title, and the application, or the persons on whose behalf he applies, is really entitled and is likely be materially prejudiced if left to the ordinary remedy of a suit, and that the application is made bona fide.
(143) Procedure - Sec.194
If the District Judge is satisfied, that there is sufficient ground for believing as aforesaid but not otherwise, he shall summon the party complained of, and give notice of vacant or distributed possession by publication, and, after the expiration of a reasonable time, shall determine summarily the right to possession (subject to a suit as hereinafter provided) and shall deliver possession accordingly.
Provided that the Judge shall have the part to appoint an officer who shall take an inventory of effects, and seal or otherwise secure the same, upon being applied it for the purpose, without delay, whether he shall have concluded inquiry necessary for summoning the party complained or not.
(144) Appointment of curator pending determination of proceeding - Sec.195
If it further appears upon such inquiry as aforesaid that danger is to be apprehended of the misappropriation of waste of the property before the summary proceeding can be determined, and that the delay in obtaining security from the party in possession or the insufficiency thereof is likely to expose the party out of possession to considerable risk, provided he is the lawful owner, the District Judge may appoint one or more curators whose authority shall continue according to the terms of his or their respective appointments, and in no case beyond the determination of the summary proceeding and the confirmation of delivery of possession in consequence thereof ;
Provided that, in the case of land, the Judge may delicate to the Collector, or to any officer subordinate to the Collector, the powers of the curator :
Provided, further, that every appointment of a curator in respect of any property shall be duly published.
(145) Powers conferrable on curator - Sec.196
The District Judge may authorise the curator to take possession of the property either generally, or until security is given by the party in possession, or until inventories of the property have been made, for any other purpose necessary for securing the property from misappropriation or waste by the party in possession:
Provided that it shall be in the discretion of the Judge to allow the party in possession to continue in such possession on giving security or not, and any continuance in possession shall be subject to such orders as the Judge may issue touching inventories, or of the securing of deeds or other effects.
(146) Prohibition of exercise of certain powers by curators -Sec.197
Where a certificate has been granted under Part X or under the Succession Certificate Act, 1889, or a grant of probate or letters of administration has been made, a curator appointed under this Part shall not exercise any authority lawfully belonging to the holder of the certificate or to the executor or administrator.
Payment of deaths etc. to curator -
All persons who have debts or rents to a curator authorised by a Court to receive them shall be indemenified, as the curator shall be responsible for the payment thereof to the person who has obtained the certificate probate or letters of administration, as the case may be.
(147) Curator to give security and may receive remuneration - Sec.198
1. The District Judge shall take from the curator security for the faithful discharge of his trust, and for rendering satisfactory accounts of the same as hereinafter provided, and may authorise to receive out of the property such remuneration, in no case proceeding five percent on the movable property and on the annual profits of the immovable property, as the District Judge thinks reasonable.
2. All surplus money realised by the curator shall be paid into Court, and invested in public security for the benefit of the persons entitled thereto upon adjudication of the summary proceeding.
3. Security shall be required from the curator with all reasonable despatched, and, where it is practicable, shall be taken generally to answer all cases for which the person may be afterwards appointed curator; but no delay in taking of security shall prevent the Judge from immediately investing the curator with the powers of his office.
(148) Report from Collector where estate includes revenue-paying land - Sec.199
1. Where the estate of the deceased person consists wholly or in part of land paying revenue to Government, in all matters regarding the property of summoning the party in possession, of appointing a curator, or of nominating individuals to that appointments, the District Judge shall demand a report from the Collector, and the Collector shall thereupon furnish the same :
Provided that in cases of urgency the Judge may proceed, in the first instance, without such report.
2. The Judge shall not be obliged to act in conformity with any such report, but, in case, of his acting otherwise than according to such report, he shall immediately forward a statement of his reasons to the High Court, and the High Court, if it is dissatisfied with such reasons shall direct the Judge to proceed conformably to the report of the Collector.
(149) Institution and defence of suit -Sec.200
The curator shall be subject to all orders of the District Judge regarding the institution or the defence of suit, and all suits may be instituted or defended in the name of the curator on behalf of the estate.
Provided that an express authority shall be requisite in the order of the curators appointment for the collection of debts or rents ; but such express authority shall enable one curator to give a full acquittance for any sums of money received by virtue thereof.
(150) Allowances to apparent owners pending custody by curator - Sec.201
Pending the custody of the property by the curator, the District Judge may make such allowances to parties having a prima facie right there to as upon a summary investigation of the rights and circumstances of the parties interested he considers necessary, and may, at his discretion, takes security for the repayment thereof with interest in the event of the party being found ; upon the adjudication of the summary proceed, not to be entitled thereto.
(151) Accounts to be filled by curator -Sec.202
The curator shall file monthly accounts in abstract, and shall, on the expiry of each period of three months, if his administration last so long, and, upon giving up the possession of the property, file a detailed account of his administration to the satisfa |
