Indian Succession Act, 1925

[Cites 172, Cited by 0]

Law Commission Report

Indian Succession Act, 1925

 

LAW COMMISSION OF INDIA
ONE HUNDRED AND TENTH REPORT

ON

THE INDIAN SUCCESSION ACT, /I925

FEBRUARY, I985.



3T$?T¢T

CHAIRMAN

fafa amﬁw

LAW COMMISSION
vnta uzmrz

GOVERNMENT on INDIA
Ii New Delhi--l T0001.

    

wan:

JUSTICE K. K. MATHEW
Dated the 251/! Fe/)ruar.\', 1985

My dear Minister.

I have great pleasure in forwarding herewith the One Hundred and Tenth
Report of the Law Commission on "THE INDIAN SUCCESSION ACT, I925."

The subject was taken up by the Law Comm~issi.on on its own. The subject
owes its origin to the discussion that took place within the Law Commission
and a Questionnaire was issued some time ago. The reasons for the revision of
the Act are stated in paragraphs 1.4. 1.8. 1.9, and l.l0 of the Report.

The Commission is indebted to Shri P. M. Bakshi, Part-time Member, and
Shri S. Ramaiab, Member-Secretary, for their valuable assistance in the prepa-
ration of the Report. V

With regards.
Yours sincerely,
Sd/-
(K. K. MATHEW)
Shri A. K. Sen,
Honourable Minister of Law
and Justice,

Shastri Bhavan_ NEW DELHI

Encl : lloth Report.



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( ONTENTS

l--«lntroductor_\' .

2---Historic:tl

3--~Preliminary (Sections 1 to 3)

4----Conﬂict of Laws

5-Domicile (Sections 4 to 19)

6---Marriage (Sections 20 to 22)

7--Consanguinity (Sections 23 to 28)

8----1ntestate~Preliminary (Sections 29 and 30')

9-Rules in Cases of lntestates other than Patsees (Sections 31 to 49)
10-Special Rules for Parsee Intestates (Sections 50 to 56)
1 1 ----Test;1mentaI'_v Succession---Introductory (Sections 57 and 58)
l2---Wills and Codicils (Sections 59 to 62) . _
13--Execution,ot' Unprivileged Wills (Sections 63 and 64)
14-Privileged Wills (Sections 65 and 66)

15-Attestation. Revocation, Alteration and Revival of Wills (Sections
67 to 73) . . . . . A . . . .

16----('.onstrucIion of Wills (Sections 74 to l 1 1)
17------Void Bequests (Sections 112 to 118)
1S----Vesting of Legacies (Sections 119 to 121)
19-Onerous Bequests (Sections 122 and 123) .
20-Contingent Bequests (Sections 124 and 125)
2l--Conditional Bequests (Sections 126 to 137)

22--Bequests with Directions as to Application or Enjoyment (Sec-
tions l38 to 140) . . . . . . . .

23--Bequest to an Executor (Section 141)

24----Speciﬁc Legacies .
(Sections 142 to 149)

25--Demonstrative Legacies (Sections 150 and 151) .
26--Ademption of Legacies (Sections 152 to 166)

27----Payment of Liabilities in Respect of the Subject of a Bequest
(Section 167 to 170) . . . . . . , _

28-Bequests of Things described in General 3Tcrms (Sections 171
and 172) . . . - . . . . . . .

29-Bequests of Annuities (Sections 173 to 176) .
30---Legacies to Creditors and Portioners (Sections 177 to 179)
31-Election (Sections 180 to 190)

32--Gifts in Contemplation of Death
(Section 191) _

33----Protection of Property of Deceased (Sections 192 to 210)

34--Representative Title to Property of' Deceased on Succession (Sec-
tions 21l to 216) , . . . . . . . ,

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.'~5»----Probute, Letters of Administration and Administration of Acects
ofthe Deceased (Sections 217 to 236) . . . . .

3o--l.imited (ir2tnt.~' (Secti0n< 237 to 360) .
_'\7----A|ter;1tion'.tnd Revocation ofGrants (Section~' 2m to 263)

32é--Pr;tctice in Granting and Revoking Probate» and Letterx of Ad-
ministration (sectiom 364 to 303) . . . . .

39---E'(CCtlIOt'.\' of Their ()\\n Wrong (Sectiom R03 and Rt)-'1!
40--|'o\\et'~o1';tn F.\ecutor or Administrator' (Sections 305 tmd 3| St
-'H----Dutie\' of-an Executor or Administrator (Sections 316 to 331)

42--As'sent to L! Legacy b) Executor or Adniinistratition (Section 332
to 357) , . . . . . . .

43---Payment and Apportionment of Annuitiex (Sections 338 to 340»
44----Investment of Funds 10 Provide for Legacies (Sections 341 to 348). .
45--l'roduce and Interest of Legacies tScctionx 349 to 355)

46-----Refund of Legaciex' (Sections 356 to 367) '

47----Liability of an Executor or Administrator for Dcvawation (Sec-
tion: 368 and 369) . . . A . . . .

4.\'----«SllCC¢<\'itH1 ('ertitic;ne. (Sections 370 to 390)
49---SLn:ces<ion by Homicide (Section 390A)
5()--tv1isce|l;meous f'I'0\ isionx' and Schedule:

5 I -----Summa r} of Recommendations

Pagcx

I95



CHAPTER I

INTRODUCTORY

l. The Law of Succession

l.l. The lndian Succession Act, 1925, has been taken up by the Law Com-,

mission as a part of its function of revising Central Acts of general application
and importance. This Act is the principal legislative measure in India dealing with
the substantive law of testamentary succession in regard to persons other than
Muslims and intestate succession in regard to persons other than Hindus and
Muslims. It is also the principal legislative measure dealing with the machinery
of succession in regard to botl1 testamentary and intestate succession in respect
of such persons. As will be explained later', the Act is a consolidating enactment
in the sense that it has brought in one place provisions scattered in several
Central Acts.

The law of succcssion--like any other branch of law-----cannot be regarded
in isolation from other ﬁelds of law. It is, for example, tacitly supplemented by
the tax laws, which turn the State into a hidden participant in the estates of many
deceased persons in the cduntry. There could be other branches of law which
become relevant in a consideration of succession, even if one conﬁnes one's
attention to the frontiers of one's own country. And if one look across the fron-
tiers, there will be so many interesting questions involving a foreign element.
Discussion of such questions occasionally lends colour to! this apparently drab
subject. ,

. 1.2. History of the law of succession itself is a matter interest. Detailed
historical discussion of the subject will be found later in this Report", but we
may say a few words about the history of the statutory law relevant to matters
dealt with in the Act.

1.3. The Indian Succession Act, 1925, has consolidated: several pre-existing
Central Acts passed between 1841 and 19033. There has not been under-taken
any wholesale revision of the Act, though occasionally, when need arises, amend-..
ments have been made in the Act from time to time. In fact, the Act of 1925
was mainly a consolidating one which made no material changes in the previous
laws, so that the previous Act--thet Indian Successidn Act of 1865--has now
substantially been in force for more than a hundred: years, as was pointed out
by a learned commentator'. Though" minor amendments have been made in 1939
and 1962, no comprehensive revision of the Act of 1925 has been undertaken
for the last ﬁfty years.

In fact, the framers of the Act stated thus' 2--

"The subject of this bill is to consolidate the Indian law relating to su¢¢¢s_
sion; the separate existence on the statute book df a number of large and
important enactments renders the present law diﬂicult of ascertainment and
there is therefore every justification for an attempt to consolidate it. The
bill has been prepared by the Statute Law Revisidn Committee as a purely
consolidating measure. No intentional change of the law has therefore been
made."

1.4. We shall deal later in detail with the justiﬁcation for revision of the
Act', but at this stage it IS appropriate to state that the present social thinking.
the mass of case law that has accumulated on various provisions of the Act and

1Para l .3, infra.
'~'See Chapter 2, infra.
"Chapter 2, infra.
'The late Mr. Paruck, in the Preface to the 4th Edition (June 1953).
asce statement of objects and reasons. vide Gazette of India. dated 4th August. 1923 pagg 5
para 401. ' ' *
6Para 1.6, et seq. infra.

Signiﬁcance of the
Act and need for
revision.

Previous revisions
of the Act.

A consolidating Act A

Need for revision



Institution of suc-
cc-scion.

Wider
"succession".

Recognition of cer-

tain claims.

Review
succession.

Importance of re-
riojical revisi tn.

inezming ot'

of law ol'

2.

certain juristic and other developments that have taken place in the held of
tainily law and in other branclies ol' the Ian, scent to _|ustity it review oi' the Act.

L5. The institution of succession is intimately connected with private
m'opei't_\'. This much is obvious. But it serves a variety of values Cherished by
a free society. these include the re--inforcemem of family ties and responsibilities.
economic and social pluralism and encouragement of private philanthropy to
improve the quality of lite'-. Perhaps tit a more lundamental level, the institution
oi' _\L|CcQs,_\l(11', is -.1 proper response of the society to elemental motives. ranging
from concern for one's immediate family I-.) a desire to extend one's personality
tar beyond death. In l'act_ cstablislied patterns of inheritance may be the least
objectionable means of deciding the ownership of property on a person's death.

At the same time, traiisters of substantial wealth tend to conflict with other
basic social values, including equality of opportunity, dispersal of economic
power. re\vai'd according to merit. and avoidance of rigid class distinctions.

ln formulating or l'C~l(3l'l11lllZtilllg the law of successi-on_ all these considera-
tions become relevant.

1.6, ()t course, testatc and intestate succession are only a part of the wider
process of succession. That process embraces many other methods of transmit-
ting property to one's successors in situations where death is._ or could be.
releva.nt---such -as, the gift m0rtis causa, life assurance in its various forms, joint
Ownership, partnership arrangements and pension and provident fund schemes.
The legal requirements for each method vary. These variations were imposed
in the context of the interests which the law was seeking to safeguard when impos-
ing such requirements. Amongst the factors, which are likely to inﬂuence /the
choice or the machinery to be utilised by the citizen. one that has become pro-
minent in modern times is. of course, taxation.

1.7. Apart from the choice of the machinery" of sticccssiolh lhcfc 55 the
question oi' the choice of the beneﬁciaries who will take after death. A major
aspect north noting is the conflict between the citizens wish and: the law's
demand, It is the wish of the avgfage educated person to choose his own succes-
sors. rather than to have that choice decided for him by an application of the
rule of intestacy. But how far this desire shduld be 'cll10W€d 21 freeplay iS 3
question which has come up for debate in recent times. In certain countries, for
example, the claims of heirs are regarded as" material. and the decision of fhé'
owner of property is not treated as conclusive. "Family provision" legislation and
various statutory provisions for the protection of the creditors Constltllffd
examples of the legal recognition of such claims.

ll. Justitieaion for Review

1.8. It \\ould be appropriate toniention at this stage certain aspects justify-
ing a reviext of the law. The law of succession is, in part, concerned with the
apparently simple process of giving effect td a persons wishes in relation to
the disposition of his property in the event of his death, and in part, with the
equally simple question--what should happen to the property Where 21 d€C€3SCd
person has not expressed his wishes (or not expressed them effectively) in rela-
tion to such disposition. However, the mass of rules. princigﬂes, statutory provi-
sions and judicial decisions which has accumulated shows that the process is
far from 'simple'. No less a ﬁgure than Coke complained", "Wills and the con-
struction of them do more to pcrplcx a man than any other learning . . . . . . 

1.9. As a branch of private law. then, the law of succession  of yital con-
cern to the community. Periodical revision of legislation dealing with this branch
of the law accordingly needs no elaborate explanatioti. Moreover. there haw?
taken place certain important developments which render a review of the Act
tiecessarv. In the lust place. a large number of sections of the ACT ll3V€ ylelded

'Death. T'.l\C.s' and l-'aniil_\ Property. Final Report of the American Assembly (December
I-4-I976) as reproduced in (January 1977) A..B.A.J. 86-R7.

'Para 1 .6. mpru.
"Roberts \'. Roberts (l6l3) 2 Btllstr. 1274. cited by Canon, Law of Succession (1976), Preface.



3

a rich crop of case law leading to a c-onflict oi' decisions or a number ol' other
diliiculties in many cases. Secondly, the content of some of the legal concepts
which underlie the operative provisions -of the Act-for example, domicile--~has
undergone change during the last thirty years or so, in legal thinking, It is desir-
able that the provisions oi" the Act should be re-considered in the light of these
(level-opnicnts.

Thirdly, social thinking in regard to some of the notions which form the
basis of the Act has as undergone changes which should ﬁnd a reﬂection in the
scheme of the Act. The position of illegitimate children is one example. The late
Shri P. L. Paruck, in his commentary on the Act'. also pointed out the "need
for revision of the Act".

All these factors justify a consideration of the Act section by section, The
changes needed in the Act may not necessarily be radical. but a review is
eminently desirable.

1.10. It may be useful to mention, by way of illustration some of the con- Concrete rcasonsfor
crete rcasons justifying '.1 1'evic\v of the Act. 'P"i5l°"--m"5""'.
Hons from parti-
This: uoiild involve sonic elaboration of points already mentioned above or CW" Provisions-
unticipation of suggestions to be made later. Nevertheless. it would be useful.

The concrete reasons are as undcr:--

('i) As a result ot' changing conditions. notions on various matters relevant Changing Soda;

to the law of succession have also undergone change (as stated above), In illustra- actions.
tion of this. the status of illegitimate childrcnt. and the doctrine of domicile',
(married women) may he referred to. ~

(ii) Scvcrul sections of the Act have been the subject-matter of conflicting Conflicting Je-

decisions. 'l"hcr-e is some obscurity even as to the very applicability' of the Act Gish?"-

(Part IV) to certain areas previously forming part of the erstwhile State of Tra-
vanc-:n'c--(?ocliin. Are Indian Christians in those areas still governed by the Tra-

vancore Christian Succession Regulation 2 of 1092 ? Or, are they now governed

by the Indian Succession Act, 1925 '? The law required clariﬁcation.

(iii) On certain important matters. changes of substance may be needed in Chang" of sub_
the provisions oi' the Act. For example, the law relating to the disposition by stance---position of
will of the property of lunatics justiﬁes a second look. In England», a judge has luﬁalit-W
now power' to make certain orders to give certain directions for the disposal of
property of mentally incompetent persons. Further'. there is power to execute a
"statutory will" in regard to persons who are mentally incompetent.

Section l7 of the Administration of Justice Act. I969 containing the relevant
law. is quoted below :--

"I7. (I) In the Mental Health Act, 1959. (in this Part of this Act referred
to as "the principal Act") in section 103(1) (powers of the judge as to
'patients property and affairs) the following paragraph shall be inserted
alter paragraph (d):-- -

(dd) the execution', for the patient. of a will making any provision
(where by way of disposing of property or exercising a power or other-
wise) which could be made by a will executed by the patient if he
were not mentally disordered. so however that in such cases as a
nominated judge may direct the powers conferred bythis paragraph
shall not he exercisable except by the Lord Chancellor or :1 nominated
judge."

'P.L. Paruck. Commentary on the Succession Act. 3rd Ed. quoted by Shri .l.L. Joshi in the
5th Ed. (1965). preface.
A 2See also suggestion of Shri A.('. Mukherjee in the preface to his edition of Mitia. Succession
Cl.
'E.G. section 37. as interpreted [II_£'0(I([\ nfSm'ah E:ra. A.l.R. l93l Cz\|_ 5(,(}_
'Sections 6/20.
'This is with reference to section 31.
*Sections 103 and 103A. Mental Health Act, 1959 (England).
Tsection |7(l i and (2), Administration ofjustice Act, 1969 (Eng.).
"Commas have been added to facilitate understanding.



Proof of title on
Succession.
Drafting ﬂaws.
Meaning of cer-

tain expessions.

4

(2) At the end of section 103(3) ol the principal Act there shall be inserted
the words "and power ol' the judge to make or give an order. direction or
authority for the execution of :1 will for a patient:--

(:1) shall not he e\ercisahlc at any time when the patient is an infant, and

(la) shall not be exercised unless the judge has reason to believe. that the
patient is incapable ol making :1 valid will for himself."

(iv) Anctlici important topic requiring consideration is the elfect of marri-
age on a will. As the law stands at present', a will is automatically revoked by
the marriage of the maker of the will (where he is governed by the relevant sec-
tion) except in the case of it will made in thc exercise of the power of appoint-
ment in ct:rtuin specific circumstances, Howeve1', some hardship is 'caused by this
provision, in as much as even a will which is made in contemplation of marriage
falls within it. In England," it is expressly enacted that'a will expressed to he
made in contemplation of rnarriugc shall not be revoked by the solemnisatiogn of
the n'tarriagc contemplated, thus overriding section 18 of the Wills Act, 1837,
which provided to the contrary.

(V) Sections 211 to 2l4. urhich deal with the prool' of title by at probate or
letters of administration or succession certiﬁcates, have, in practice. created certain
problems in the Case of pt'-aperty passing by survivorship. In particular, the
question has arisen whether letters of administration can be granted in respect
of shares in joint stock companies standing in the name of the Karta of u
;\-rlitaltsl-iara Joint Hindu Farnily. On the death of the Karta who was the registered
holder of the shitrcs, the title to the shares vis--a-vis the company does not pass
by survivotrship to the surviving members without letters of administration. This
position has been judicially reached on a construction of the scheme of the Corn-
panies Act under which the legal title in the shares is regarded as vested in the
(registered) holder of the shares". The practical importance of this question is
enough to justify 2| re--considcr:ttion of the law on the subject.

(ti) Drullin,-_v llans have also been discovered in it few sections of the Act.
For example, an anomaly seems to t.z\lS{' on a very important point, namely----
can Hndus, Buddhists, Sikhs, Jains, etc. make a privili=,"ged will '? This diﬂiculty
has arisen bectttise of the fact that section 65 (privileged wills) does not apply
to persons belonging to these communities*'', as the section is not listed in the
Third Schedule as one o-1' those sections which apply to Hindus, etc. The defec-
tive draltsmanship of sections 63 to 66 has led to the postition that, at present.
the capacity of soldiers belonging to the Hindu etc. religion to make wills has
become extremely doubtful. Section 63. dealing with unprivileged wills, sxcludes
soldiers from its fold. Section 65, dealing with privileged wills, is inapplicable to
Hindus, etc. by reason of the Third Schedule. The result is that Hindu soldiers
are, in relati-an to the making; of privileged wills, governed not by sections 65
and 6o--these being expressly excluded under the Third _ghedu1e----but by the un-
enacted law of wills as applicable to Hindus. This positionifannot be ragarded as
satisfactory. It is therefore l1C'CC.\'Sill'}.' lg extend section 65 to Hindus, etc_ by
_umending the Third Schedule".

- (vii) Certain important and far--reaching questions have also arisen in con-
nection with ;xprt-ssions like 'Dharma' used in wills, Under section 89 of the
Succession Act, bequests for "Dharma, Dharmada", etc. are liable to be regarded
as void by reason of certain judicial decisions; these decisions hold the ﬁeld
unless the position is rectified by legislative amendment?

This position, however, is not satisfactory' and is substantially contrary to
Indian social notions. By way of illustration of local iegtslation that has sought
to. rectify this (l€llCl€l1C_\'t reference may be madt to the Fxplanation to section ll}

'Section 69.

2335177. Law of Pl'opcrl_\' Act, l9l5 H-alsbury, 3rd Edition, \/'o.. 39. page 888, parn l85l.
am mg gw,{,l[g U1 Smr Prrrmd. A.l.R. 1954 Cal. 444, 446 paragraph 34.

'This is with reference to section 65.

'?»See the Third Schedule.

'Tobe considered under the Third Schedule.

7Point concerns Section 89.



5

of the Bombay Public Trusts Act. l950, The section (along with the Explanation)
reads as under':

"I0. l\'ot--withstanding any lam. custom or usage, -.1 public trust shall not
be void. only on the ground that the persons or objects for the beneﬁt of
whom or which it is created are unascertained or unnscertain-able.
Explanatz'0n----A public trust created for such objects as dharma, dharmada
or punyakarya. or punyadan shall not be deemed to be void, only on the
ground that the objects for which it is created are unascertainable."

It appears to be desirable to incorporate such a provision in the lndianNced for ehang

Succession Act in regard to bequests. Section 89 of the Act provides that a will
or bequest "not expressive of any deﬁnite intention" is void for uncertainty.
Re--enacting, as it does, section 76 of the Succession Act of 1865, this is a pro-
vision sound in principle. But its application to certain situations has created
ditﬁculties, and the view in judicial decisions '~'-" that a bequest for 'dharma' is
void, does not, unfortunately. reflect the sense of the community. It is urgently
necessary that the law should be amended so as to reflect the thinking in Indian
society on the subject. '

(viii) i"'et'tairi gaps in the law need to be tilled up. There is
specific prmision prohibiting a murderer from succeeding to the estate of person
murdered'.

(ix) In the case of mo or more persons who die in a calamity such as lire.
llclod, -earthquake and the like, there is need for a speciﬁc provision laying down
a presumption as to whose death occurred ﬁrst. In thisconnection, reference may
be made-5 to section '21. Hindu Succession Act. which provides as follows :--

21. Where two persons have died in circumstances when it is uncertain
whether either of them, and- it' so, which, survived the other, then, for all
purposes affecting succession to property, it shall be presumed. until the
contrary is proved. that the younger survived the elder.",

There  however, no_such presumption in the Indian Succession ACt_. In
the absence of a statutory provision, the matter would have to be decided pri-
marily with reference to the burden of proof. The Privy Council' has rejected
the argument that the wife being younger than her husband, survived him when
both of them die together in an earthquake, o_bserving----"it is clear to their Lords-
ships that when two individuals perished in a common calamity and the ques-
tion arises as to who died ﬁrst, in the absence of evidence on the point there is
no presumption in law that the younger survived the elder".

l.ll. The above is merely a brief mention of selected provisions of the
Succession Act that require revision, or at least. re--consideration. A detailed
examination of the Act would reveal many more areas df the law where reform
is desirable, or even imperative. It is not necessary to encumber the discussion

need for aF.ﬂ'ect of murder:

Detailed cxamina

other defects.

at the present stage with those details. leaving them to be dealt with under the _

relevant sections.

l.l2. It would be convenient to deal with the scheme of the Act brieﬂy at
this stage. The Act is divided into eleven parts, apart from the Schedules. Part I
contains certain preliminary provisions, dealing with the deﬁntions and power of
the State Government to exempt certain classes of persons from the operation
of the Act. Part II deals with the concept of domicile. The concept is of impor-
tance, because the application of the Act td. movable property of a person depends

thereon.

'Section 10. Bombay Public Trusts Act. 1950.

'~'RaIzrl1h0rda.r \'. Pm'r(m'bai. l.L.R. 23 Bom. 725 (P.C.)

3'-See the iudgement of Subrahmania Ayyar J. in Parr/mmrm/z_t' \'. T/riruvengada I.L.R. 30 Mad.
340.

'See chapter' 48. infru.
'Section 21. Hindu Succession Act, 1956.
'Agha Mfr Ahmed V. Mudassir Shah. A.l.R. 1944 RC. lO0.

Scheme
Act.

of

tion likely to rcvca

tht



6

Part III deals with the ellect of marriage on wills and certain allied itiattets.
Part IV treats of the concept of consanguinity--again a concept of importance for
the purposes of intestate succession.

With Part V lxgiii the provisions actually dealing with the order of intestate
succession. Chapter I of this Part is of a preliminary character. Intestate succes-
sion in the case of persons to wh_om this Part applies, other than Parsis, is dealt
with in Chapter II, Chapter III contains special rules for Parsi intestates. It
should be mentioned that this Part (Intestate succession) does not apply to Hindus
Nloltzimmctlans, Bhuddhists, Sikhs or Jains.

l.l3. Testamentary succession is dealt with in Part Vi. which is the longest
part of the Act (23 Chapters), and is to be read with the Third Schedule. The
ﬁrst. ﬁvc chapters of this Part deal with the formalities requisite for wills of
various classes. Chapters VI, VII and VIII are in the nature of provisions relat-
ing to' the construction, operation -or effect of wills and the vesting of legacies.
Chapters IX to X.'{I are concerned with legacies in favour of particular persons.
and connected matters. Chapter XXII deals with the abstract doctrine of "elec--
tion". Chapter XXIII is concerned with gifts in_ contemplation of death---git'ts
which may be described as  kind of transfer ambivalent between a transfer during
lifetime and a tranzsfc-1' by way of will. '

1.14. Substantive matters concerning succession having been dealt with. the
Act now proceeds to lay down procedural rules.

Part VII deals with protection of the property of the deceased. Eastahlisli-
men: of representative title to the property of the deceased on succession is the
subject matter of Part VIII which, though consisting of only six sections (sec-
tions 211 to 216), is of the greatest practical importance. In the scheme of the
Act, representative title can be established by obtaining (i) probate, (ii) letters of
administration or (iii) succession certiﬁcate. The ﬁrst two (probate and letters of
administration are dealt with at length in Part IX, containing B chapters. third
(succession certiﬁcate) is dealt with in Part X. It may be stated that these Parts
of the Act are concerned with procedure and are primarily of importance to
law_vers and courts.

accession Certi- 1.15. Part X of the Act which deals with succession certiﬁcates is important,

-'ates both for its theoretical interest and for its practical utility. In the scheme of the
-Act, a succession certiﬁcate is generally granted to a person entitled to a 'deb¢'__
an expression which would embrace the major categories of what English law-
yers know as "cheses in action". The proceedings for obtaining the certiﬁcate are
summary. and are intended to facilitate. realisation of the debt.

,ac"-cal mimy. l.l6. In most Cases under the Act, the taking out of letters of administration
on intestacy is not obligatory and it is 'enough if a succession certiﬁcate
is taken out where a "debt" is to be recovered which was due to
the estate of the deceased. This procedure has proved popular. I he Banks,
insurance Companies and others also insist on the production of a succession
certiﬁcate as a matter of safeguard. The certiﬁcate has thus become the com--
mon man's usual document of title in regard to the property which he has in-
herited and which was not in the immediate possession of the deceased. One
could appropriately describe it as the "poor man's letters of administration.

mormcal i,,,mS,_ 1.17. _Apart from th_e_practical _utility of the certiﬁcate, it is of interest to
note that it IS lnd1a's original contribution to the law of administration of de-
cedent's estates. Such a document is rarely to be found in other legal systems.

jhanges needed on l.l8. In view ot the manifold importance of a succession certiﬁcate, we
cvefal matters have d6VOI€(1 some attention to an examination in detail of the provisions
relating to the procedure for obtaining it, and we were surprised to find that
there were several points of substance as well as of form which required atten-
tion. For example, to take an illustration chosen at ranydom---a point of sub-
stance that needs to be considered is whether this procedure should be extended
to cases where a debt devolves on a person not by "succession" (as technicall'
understood) but by "survivorship". A 3

l.l'). As to point of form, we may----agajn b - f - -
mention that the criteria by which the jurisdiction )i)fw2ilyDi)str'ilcltuSCr<il1tiir(:nto()[]g1;-3;};



7

a. succession certiﬁcate is regulated (seetions.3"/U and 3/1). are 'expressed in a
language different from that deﬁning the criteria for the ]U1'1S(llClt0I1 to grant
probate (section 372). It would be necessary to consider whether there is '_'¢ll]_\y'
sound reason for maintaining this disparity between the two provisions.

We propose to consider' this and other points of substance and form relat-
ing to succession certiﬁcates iii the appropriate chapter.

l.2U. Part XI of the Act contains certain miscellaneous provisions. Lastly.
there are schedules dealing with variotis matters of detail. Of these Scliedules.
the Third Schedule is of vital importance; the application of the provisions of
the Act relating to testamentary succession (Part VI) to Hiiitlus. Budclliists.
Sikhs and Jains has to be ascertained from ihis Schedule'.

l.2.l. So much as regards what is already contained in the Act------u-'ltat may P]'i'f"°, i'"°'é""i't3'é
be Called the "positive aspect". We may now point out a few negative aspects indl-:1? Sﬂcccssir
of the scope of the Act. In the ﬁrst place, the Act does not contain the whole Act.
law of succession applicable in India. We have already £l(.lV€I'iC.l to this aspect
earlieri. Secondly, the Act does not contain any express provisions as to rules
of private international law, excepting section 5 (which provides for the applica-
tion of the lex-Sims in the case of immovable property and the law of domicile
in the case of movable property) and excepting possibly a few other sections".
liven section  is. as the law stands, at present. of limited applicaticiiﬁ

The question of inse-rting suitable provision on the subject will he consi-
dered in due course':

1.23. The Law Comniission had circulated for conimcnts .i Worlting C°";'1"'°'"" "°"°i"~"
. . - . . ' . . ' t w it'

Paper on_the Act" to interested persons and bodies. S-ugh comments as have  ° 0' '"3 P"
been received on the Working Paper will be dealt with in detail at the appro-
priate place under the relevant section. At this stage. it will sutlice to mention '
that comments have been received from the t'tillowving:%

(a) "live State C}overi1iiietits";
(ii) llirce High Cottrts":
(ct Delhi Hindustan Mercantile Association-°: and

{d} The Catholic Bishops' Conference of li1dia_ (The Catholic "Bishops"
(onterence in India has forwarded views communicated to it by
otlters).

_ Besides tliese, the Coinniission has had tJ1._~ udvgtlllagc of }M.umm an
111t€1'BSIlIlg article published in the Statesniaii", dealing with some of the pro-
posals that had been put forth in the Working Paper".

1Scction 57.

'~'Pat'a l .l. .sHpi'u.

9366 Chapter 4. in./mt.

'Sec discussion as to section 5. tufiu.

'See. for example. Chapter 3!. inlm.

"\V0l'l(lI1g Paper on the Indian Succession Act.

'Law Commission File No. F. 2(6)_.'84-L.C. Serial No. (1 and S. No. 13.

"Lav. Commission File No. F. Ito) '84-L.C. Serial Nos. 5. 8 and 9 (High Lou;-15;,

'"'Sl1'thtiaz Anklesaria. article in (2.Uth June, I984), The Statesiiian, page 6.
"All comments received upto the l0tlt October. 1984. have been dealt with, in the Report,



Scopc of the Chap

.€t'.

L)rigin
sion.

Roman

8

1I1Cl(lt'.'l1l€tll). it may be mentioned that of the three High Courts that have

responded to the Working Paper_ the judges of two Courts have no

com_nients

to Offer'. The judges of the third have welcomed the general idea of revising

the Act and the proposals put forth in the Working Paper'-'.

Of the State Uovernnients. again. one has no cont-inents to oller'. lhe

comment of the other relates to section 30. and will be dealt with t

hereutldei".

The comment of the Delhi Hindustani Mercantile Association raises a few
pointsi. The comments contained in the letter of the ('atholic Bishops' Conference

of India relate to numerous sections.

CHAPTER 2
HISTORICAL

l. Origin of succession.

with in the Act. Such a resume is not of mere academic value.
of many of the provisions of the Act and their litnited applicability'
properly appreciated without a knowledge of their history.

3.]. We propose to give in this chapter a brief historical resume or' the
law of succession, including the Indian statutory law relevant to matters dealt
The rationals

cannot be

2.2. The origin of succession has been thus dealt with by Dr. P. N. Sen" :-~-

"Thc origin of succession. like that of so many other legal ideas. is pro-
bably to be traced to a religious basis. According to many authorities, it
is derived from primitive animism, the source of the worship of the House-
spirit, always a male. generally an ancestor. The vesting of the succession
in the heir himself originally, like the House--spirit. always a male, was
necessary for the purpose of continuing the family rights and observances
on which. according to primitive belief, the very existence of the family
depended. Property and Sacra were indissolubly combined. lt was a Doint
of family honour that the spirit of the deceased. and. through him' the
House-spirit. was to be propitiated by ritual obsewanee. Such ubservunceg
Were neglected 'at the peril of the survivors. for the family was one and
indivisiblc. the dead nicmbers were still members in a sense, and the heir
was simply a co-proprietor with the deceased. The theory of the uniry and
perpetuity of the family is. in fact. the key to the early rules of succession'.
The principle of spiritual benefit is also a characteristic guiding principle
in the Dayabhaga law of succession. Srikrislma Tarkalunkar poinis out that
a stranger "ho thro\\s the bones of the decased into the Ganges. or presents
funeral cakes to his departed spirit at the holy shrine of Gaya might. on
the ground of sclperirzi' spiritual benefit. claim his property even in preference
to his relations.

ll. Wills in Roman Law.

Law. 2.3. Much of the [an of testamentary succession has its genesis in Roman

la\\. and it \\oul(| be of interest to kno\\ the position under that law
tion has been thus sl:ttCtl'° :

'Lam Commission File No. F. 2t6>,'84-L.C. Serial No. 5 and 9.
'-'Law Commission File No. F. 2(6)/S4-L.(.'. Serial No. 8.

-'Law Commission File No. F. 2((i)'S4-LL'. Serial No. 6.

'See Chapter 7. infra (section 30).

'See section 372 (1') (fl. and miscellaneous chapter.

°F..G. section 57.

7P.N. Sen. Hindu Jurisprudence, page 161.

"Williams on Wills and lntestatc Succession, page 3.
'Encyclopedia American (1966), Vol. 23, page 646.

. The posi-



9

"Law 0] _§lt(,C('.',.\tL'//l.----~L;p()l1 the death of a person an inheritance (/;-eredizes)
is conceived as the whole of the property, moveables and immoveables, rights.
claims and obligations ot the deceased.

"Through succession on intestacy (ab 1'n1e.s1uzU) the inheritnance developed
on those members of the family who, at the time of the death of its head.
had been under his paternal power and through his death become indepen-
dent (.\'u1'-juri.si). In the absence of such heirs. relatives tied with the de-
ceased by descent from a common ancestor through males (agnates) received
the inheritance. Paretoriam law admitted. to succession on intestacy, sons
who had been emancipated, then cognates (relatives by blood through -males
or females), and the wife, The whole succession on intestacy was liberally
reformed by Iustiniau. intestate succession occurred only when there was
no valid last will or where there \vas one. but it became void by later
events (>pi'e\'intts death of the heir instituted or his refusal to accept the
inheritance l.

"The usual forms of testanient here manifold. written and oral. with more
or less formalities which under praeterial law (seven witnesses tor a written
will) and later legislation became simpliﬁed. A will had to contain the
institution of an heir (heares) in the opening phrase without which it was
not valid. lt could contain xarious other dispqsitions. such as legacies
tlegata. ()l'lf_'l1latll)' expressed in prescribed words, late; formless tideico--
tnissat. inantunissions of slaves. appointments of guardians for the testa~
tor's children or wile. disinhcritances. and many other wishes to be fulﬁlled
by heirs or by lcgatues. /\ later will made the previous one null, the tqstator.
however. could make new dispositions or modify former ones in an addi-
tional document tcodicil')."

2.4. Tcstaiiientary succession was extensively developed in Rome, 'l'l1eDe,e10pm€m of
will, if not purely Roman, at least owes to Roman law its complete develop-the will a feature
ment,'--a development which, in most countries, was ;,eatly aided, at a later Or R°'"a" L8"-
period, by ocelosiatics versed in Roman law, and in England, especially, by the
Judges of the Court of ('hancer_\'. The effect has been that. as Sir Henry Maine
expresses it. "The English law of testamentary succession to personal has become
a modified form of the disposition under which the inhcritances of Roman
citizens \verc administered."

3.5. In the Mosaic law. the will, if it existed at all, was of a very rudimentary M053]-C Law and

character. in spite of the assertion of litysebitts that Noah made a will disposing Roman Law.

of the whole world. In any case, there was no absolute freedom of tcstation

in the Hebrew legal system. The testator could not disinherit his natural children".

Intestacy was the normal course? In contrast, the Roman Law developed. refined

and made general the use of the will.

2.0. the \\ill in ltoinau lam was conceived as a transfer of the inheritance wiuin Rom-an L3",
as a whole. The tcstator must dispose of the whole or none; he could not (unless
a soldier) die partly tt.-state and partly intestate.

The earliest form of \\ill \\hicl) was made publicly in the cumiltz twrium iii
Roman times' looked like the irrevocable abrogation of an heir that is to say, the
debarring of certain heirs who were hot the ordinary heirs, The alternative will.
made before people drawn up for battle, probably had for its object the disposal
of the testator's arms. and other objects especially dear to him. But the will of
mature Roman law originated in a rmmc1'pufi(1 of his estate by the testator--~
probably on his dcath--bed--t(= a person who acted as a kind of trustee and who
distributed it according to the instructions of the testator. Such a person was
known as the fmniliu ('Hl/).v'til'.

'Williams on Wills and lntestate Succession. page S. cited in .\".l). Basu. Succession Act
H957). pages 11-13.

-'Kagan, Three Great Systems of Jurisprudence (1955). page 20.
3Kagan, Three Great Systems of Jurisprudence (1955), page 153.
'Chambers Encyclopaedia, Vol. ll, pages 807, 'S08.



10

Rom"; Jan wins  it is certain that mills existed already at the time of the X11 Tables

r]'1€1'l{lOrlC'.'.l by Gain: (.t5t)--451 B,.('.) and it is highly probable' that the fonu used was still that

3"" .t'_"""5 '" °m°"' mentioned bv (iuius as the oldc.sl#the will made publicly in the assembly of

game" the ctr/"inc (iiL'.Sl(lfli{'illl'lIPI ('()H.'llll,\ culudr). with the will made before the people
drawn up for battle lzcsramunturn in proclncrims) as a variant. It may be
however, that the nrancip:ztor_\ will (Jcszmuemum per am at libram) had already
been invented. This began as an expedient for eliecting the purpose of a will
in an tmergericy. when the other iorms were impossible. and consisted in tlie
use of mancipation to convey the estate of the dying man to a kind of trustee
(familia r'Hl[)l0l'l who then distributed it in accordance with the testators instruc-
tions.

{%:"°c1I'1'(1j°1':;';1't5hC [?'f_ 2.8. By the end of the Republic", the Roman will had become revocable

public L during the testator's life time. and did not divest him of his estate until death.
But the original inlluence remained strong enough to ensure that the primary
and essential element of the will was the institution Of an heir or lzeirs who
should carry on the pcrsonztlity or the testator. Later. the-re took place certain
developments, in the course of whicli possession of the estate was given to any
one "instituted" in a testamentary document, if the document wos sealed with
"seven seals" and otherwise in order. even though m.(u1cipali0n had not taken place.
In Justinians times. the commonest form of will was a document sealed with
seven witnesses and sigited by them as the tcstator. A eodicil could be sealed
by live witnesses. Perhaps this sealing by witnesses contains the germ of the
modern requirement of attestation.

' Man°'p'"'°"' 2.9. The "nianciputioii" had become a mere lorniality and the instructions
of the tcstator, which were now contained in a written document. constituted a
true will. operative only at the death and revocable at any time during the
testator's lifetime by the making of a new will. In classical times the praetor
had already given effect in most cases to a document sealed by seven rvitnesses".
In post--cla'ssical times. the inancipation had ceased to be necessary and the com-
monest form of will was the reszanmiitmrz griperiium, needing for its completion
the seals of seven nitnesses and the signatures of the witnesses and of the

testalor.
Requirements of 2.10. The lirst requirement ol any Roman will of historical times was the
R°'"'"' W'"- appointment of one or more lrercr. A /rw'e.s' is a universal successor. i.c.. he takes

Over the rights and duties of the deceased (in so far as they are transmissible
at all) as a whole. On acceptance. the heir becomes owner where the deceased
was owner. creditor where he was creditor and debtor where he was debtor.
even though the assets were insullicient to pay the debts. lt '.':'llS thus possible
for an inheritance to be (/('HHl(.'.\'(', ie. to involve the heir in loss_ Until Justiniaifs
day this consequence could on!) be avoided by not accepting the inheritance.
but Justinian made one of his most famous reforms by introducing the heneﬁcimn
i.m'ei1lai'ii,  the heir who. within a certain time after the acceptance. made an
inven,to1~y of the dcceascd's assets. need not pay out more than he had received
In addition lo appointing an heir. the te-stator might also leave legacies. i.e..
particular gills which ;n.,- at burden on the heir. Freedom of testation was. how-
ever. not complete. a man being obliged to leave it certain proportion of his
property to his children and. in some cases. to useendants. and brothers and
sisters.

ocmgan as 3 2.11. (()ctaVian. nhom we know as Augustus. became the first Roman

'3<=--'I¢ﬁCjHr>'_ lmderfiniperor, Caesar. in :2 codicil to his will. named Octavian as his adopted son

C"'°33"'W"'- and heir. The status which this appointment gave to Octavian. as well as the
money \\hiL'.h came \\i7.ll it. snnblcd him to become a member of the Triumvirate
which came to power after ('acsar's death, and later to make himself the sole
ruler of the Empire)'.

ill. Wills in other countries during ancient times

Will in Germany 2.13. According to lileitiis. the will wars not in use amon_g the ancicut
antcl'.GI'ec<'€iﬂ ancl-Gerni:-.n tribes. lhe mil is. on the other hand. recognised by Sabbinical and
en imes. ____ 7 _> W

, .l0llo\\iC'/).

'Enc}cl0paedia Britannica (1965). Vol. 19. page 453 (Hi
*Chamber's lineyclopaedia. Vol. ll. pages 807. 808.
Nﬁneyclopaedia Britannica (I965). \-'0]. I8, page 453 lH.F. Jollowicz}.

'Rene A. \\'orms'er, "Wills that made histroy" (1962) 48 A.B.A.J. 1148, I149.



Mohamn;edan Law. At Athens, under the legislation of Solen, a will could be
made only where the testator left no children. Eleven out of the twelve extant
crations of Isacus are on claims to an inheritance. In some cases, Isacus argues
in favour of the validity of the will, in others, he argues against it. (The Romans
were essentially a will making people. An immense space in the Corpus Juris
is occupied with testamentary will. The whole of part V of the Digest (Books
XXVIII (28)----XXXVI (36) deals with the subject).

Aristotle's will, we are told', shows his concern for every relative and
dependant, not the least for the emancipation of his slaves,

2.13. [History furnishes many examples of wills executed by distinguished wins in countfies
persons in countries under Roman inﬂuence. The Egyptian dynasty of the Ptolemies under Roman in-
was founded by a Greek, one of the generals of Alexander the Great. Ptolemy X was ﬂ"°"°°-
the last legitimate descendant of the line. Having no legitimate progeny of his own he
left a will in which he bequeathed his kingdom to Rome. Caesar and some other
Roman senators wanted to accept the bequest and to actually annex Egypt, but
the political opposition was strong and the project had to be abandoned2.]

2.14. [Nearer to our times, Louis the Pious divided his realm by will Will of Louis the
among his three surviving sons,---L0thair, Charles ("the Bold") and Louis ("the Pious-
German").] Unhappy about the division which their father had made, the three
sons immediately broke into armed conﬂict at his death. When the dust settled,
the ﬁnal division of the Empire presaged the permanent separation of France,

Italy and Germany and created a borderland which (including Alsace) was to
become a source of strife for centuries. Louis ("the German") got what_ is
substantially West Germany now: Charles ("the Bold") got France; and Lothair
received the imperial title. Northern Italy and the Frankish heartland, the Central
Area to the North Seal. '

IV. Wills in Hindu and Muslim law

2.15. (In Hindu law, there was, originally, no concept of wills. No synonym wmsamon tmm
for the word "will" was to be found in the whole of Sanskrit literature. But the dus and M§:ﬁm,_
institution of wills in all its aspects (as applicable to Hindus) was brought into
being by judicial decisions' during the British period). In the latter half of the
19th century, the Privy Council could observe", "It is too late to contend that

' because the ancient Hindu treatises make no mention of wills, a Hindu cannot

make a testamentary disposition of his property."

2.16. A Hindu will executed before 1870, could be in writing or oral, and Hindu wins be_
no attestation or other formalities were required'. Even signature was not fogegnd am,-'137o_
necessary in law. In 1870, the Hindu Wills Act introduce various form_alities
for the execution of wills'. Later legislative developments on the subject are not
material for the present purpose, since the sections of the Indian Succession Act
which lay down the formalities for making wills apply to Hindus', and constitute
the present law on the subject.

2.17. Amongst Muslim", the tradition of making wills goes at least asi
early as the Prophet'. The Indian Succession Act does not apply to wills executed
by Muslims, an the law on the subject has developed on its own lines".

'Muslim Law.

'Encyclopaedia Britannica, Vol. 2, page 393.

'Rene A. Wormser, "Wills That Made History" (1962) 48 A.B.A.J. 1148.
'Rene A. Wormser, "Wills that made History" (1962) 48 A.B.A.J. 1148, 1149.
'Sarkar, Epochs in Hindu Legal History, pages 371 and 383.

"Beer Partab. v. Rajendra Partab, (1867) 12 M.I.A. 1, 37.

°(a) Manelzarji v. Narayan, 1. B.H.C.R. 77.

(b) Srlnlvasa v. Viﬂzyammal, 2 MHER 224.

7Vinayak V. Govindraj, 6. B.H.C.R. 224.

'Sections 63-64, read with section 57.

°Sekaene, Muslim Law (1968), page 838,

Tyabji, Muslim Law (1968), page 764.
"See also para 2.11.
85-L/B(D)144Mol'LJ&CA--2



History

of the

Succession Act.

History
mentary
ction.

of testa-
Jurisdi-

12

V. History of the statutory law of succession in India

2.18. This brings us to the statute law on the subject oi succession in general
in India. Hiystory of the general statutory law on succession may be conveniently
dealt with under the following periods:--

(1) The period before codiﬁcation

During the period upto 1865, Hindus and Muslims were governed by their
personal law', and persons belonging to other groups were, in general, left to
be governed by the English law. This had been speciﬁcally held in relation to
the right of exercise of testmentary power over lands held in the mofussil. by
a Frenchman having a British domicile". There were, no doubt, some reﬁned
distinctions as between the Presidency towns and the Mofussil, but these need
not detain us. not being material for the present purpose.

It may be stated that application of the English law to Parsis, at least in
the Presidency towns, was well-settled.'

2.19. With reference to history of the testamentary jurisdiction of the c~'>urts
in India, it has been stated5 :--

"Testamentary jurisdiction was ﬁrst given to the Supreme Court by these
original charteijs printed in two Merley's Digest, p. 549. that in Bengal
dated 1774 being the lust. And it was then given as a brancii at the eccle-
siastical jurisdiction, as was to be administered according to the ecclesiastical
law as in force in the Diocese of London. In the course of the series of
events by which the British territories in India grew from a group of trad-
ing settlements into an empire, various branches of jurisdiction which sprang
originally from an ecclesiastical origin, have come to be applied, by a
number of legislative Acts, to new territories and new classes of persons,
and administered by law tribunals. And in the process of this development
ecclesiastical jurisdiction has been completely discarded and the Legislature
has gradually evolved an independent system of its own, largely suggested,
no doubt, by English law. but also differing much from that law, and pur-
porting to be a self contained system. Even in the case of the High Courts,
the successors of the Supreme Court (which alone possessed eccesiastical
jurisdiction) the testamentary jurisdition, which the charters purport to
confer upon them, is not given as a branch of ecclesiastical jurisdiction, and
is not made dependent upon the law administered by English courts.

"From an early date the Supreme Court granted probates of Hindu and
Mahomedan Wills. (See Babu Muttra's case, Morton 75, also reported in
Clark's Rules and Orders, page 119). The practice varied greatly from time
to time, and it was never perhaps very satisfactorily determined upon what
basis the jurisdiction rested. It was, however, established that such probate
might issue. But the Supreme Court never applied the English rule as to
the necessity for probate to Hindu and Mahomedan Wills, nor do they
attribute to such probates, when granted, the English doctrines as to the
operation of probate. Under the system a Hindu or Mahomedan executor
took no title to properly merely as such by virtue of the probate. In the
case of Mahomedan executors such a title was created for the first time by
the probate and Administration Act"

(2) Period before 186'5--Hindus and Muslims

2.20. In the period before 1865, considerable uncertainty prevailed as to
the law applicable to persons belonging to communities other than Hindus and
Muslims. Before 1865, the Hindus and Muslims were governed by their respec-
tive perlsonal laws, in matters of inheritance and succession, The position was,
however, obscure in relation to other persons,----for example, Anglo-1ndian5_
Parsis, Jews, Armenians, Christians and others. In general, the English law was

'Act of Settlement, 1781, section 17.

"J.S. Jebb v. Lefebre and Carellne, English decisions (old series), Vol. 1, page 92.
'Mayor o/'Lyons v. East India 02., 1 M.I.A. 175.

'Naoroji v. Rogers, 4 Bombay High Court Reports.

'Kurrutulain v Nuzhut-ud-Dowla, I.L.R. 33 Cal. 117, 128 (Sir Arthur Wilson J.).



A

15

applied in the Presidency towns. but the position as regards the Moflussil was
not very clear'.

This obscurity of positior. was, in fact, referred to by Sir Henry Maine",
when he introduced the Bill that led to the Succession Act of 1865. Eﬁorts by
the iiirst Law Commission to clarify the law failed to yield fruit.

2.21 The law deﬁning the rights and obligations of non-Hindus and _n0n-- Obscurity in the
Muslims was thus in a_n extremely obscure position in the ﬁrst half of the ﬁrst half ofl9tl1
nineteenth Century. In the presidency towns, the English law was applied to °"'""'3'-
members of such communities, as stated abovet. Outside the presidency towns,
most of the courts in the Motussil came to apply, under the phrase "justice,
equity and good conscience", in all cases not provided for by the legislature.

the substantive personal law of the particular person.

2.22. In 1935, the First Law Commission' recommended that the English First Law com.
law should be declared to be the law applicable to such persons, but this recom-- mission-
mendation was not accepted'.

2.23. When the Second Law Commission was established under the Charter second Law co.
Act of 1853, it adopted a different approach. It did not fabour the introduction mmisSi0n-
of English law, but it considered it desirable to assimilate the law prevalent
throughout the country'.

2.24. A lot of legislative activity was witnessed during the period of the Third Law Com_ .

Third Law Commission. Amongst the enactments framed by the Third Law mission.
Commission was the Indian Succession Act, 1865. One of the Objects of this

Act was to regulate the position relating t_o inheritance of propertyafter death

in regard to persons other than Hindus and Muslims.

The draft of the Indian Succession Bill was submitted by the Third Law
Commission in its First Report'. Originally, it was proposed as "the Indian Civil
Code Chapter 1"--a title which was later altered as the Indian Succession Act
of 1865. It may incidentally be stated that Third Law Commission did its work
in England. Its Members were Sir John Romilly (Master of the Rolls), Sir
William Erle (Chief Justice of the Common Pleas), Sir Edward Ryan, Mr. Robert
Lowe (Lord Sherbrooke), Mr, Justice Willes and Mr. J. M. Maclcod (who had
been a Member of the First Law Commission also). ~

2.25. The Act of 1865 dealt with succession, both testamentary and intestate.
However, the Act exempted Hindus and Muslims from its scope. Its utility lay
in the codiﬁcation of the law of succession as regards other persons. The draft
Bill prepared in England by the Third Law Commission, as already stated, was
well received in India. Rankin has described it as a "most valuable and distin-
guised piece of work".

2.26. It was mentioned in the speech of Sir Henry Maine, when he intro- Speech 9f 3;, Henry

dueed the Bill which led to the Act of 1865, that "the rules which the Act in-- Maine-

cluded were, for the most part, so extremely simple as to be readily intelligible

to a layman, The Act was to serve as the general law of testate and intestate

succession governing all who were not expressly exempted from its operation.

Europeans, Eurasians, Jews, Armenians and Indian Christians were made

subject to the Act. Hindus, Mohammedans and Buddhists were excluded from

the purview of the Act. The Governor-General-in-Council was given power to

exclude any Indian races or tribes not falling within these classes. The Act

applied to Parsis in cases of testamentary succession.

1M.P. Jain, Indian Legal History (1972), pages 437, 490, 495, 556.
2Statement of objects and Reasons attached to the Indian Sucession Bill, which became the
Act of 1865.

"Para 2.20, supra. ~

'First Law Commission, 'Lex Loci' Report, (3lst October, 1835).

5Rankin, Background to Indian Law (1946), page 37. '
°S§cond Report of the Second Law Commission, Cambridge History of India, Vol. 6, page

'Third Law Commission, First Report, (1854-1855).
"Rankin, Background to Indian law (1946), Page 47.



' Parsis

Post-1865 legisla-
tion.

Act of 1925

Developments _
relating to Parsis.

Scope

in mofussil

14

2.27. In between 1865 and 1925, a number of other Acts relating to the
law of Succession were passed. All these were incorporated in the Act of 1925,
which was a consolidating measure in the true sanse.

(3) The period of consolidation

2.28. The period of consolidation of the statutory law of succession in India
thus begins in 1925. The various enactments consolidated by the Indian Succession
Act, 1925, were :--

(1) The Succession (Property Protection) Act, 1841 (Act 19 of 1841).

(2) The Indian Succession Act, 1865 (Act 10 of 1865).

(3) The Parsi Intestate Succession Act, 1865, (Act 21 of 1865).

(4) The Hindu Wills Act, 1870 (Act 21 of 1870).

(5) The Married Women's Property Act, 1874 (Act 3 of 1874), Section 2.

(6) The Probate and Administration Act, 1881 (Act 5 of 1881).

(7) The District Delegates Act. 1881 (Act 6 of 1881).

(8) The Probate and Administration Act, 1889 (Act 6 of 1,889).

(9) The Succession Certiﬁcate Act, 1889 (Act 7 of 1889).

(10) The Probate and Administration Act, 1890 (Act 2 of 1890),

(11) The Native Christians Administration of l".st:rtes Act. 3901 (Act 7 of
1901).
(12) The Probate and Administration Act, 1903, (Act 8 of 1903).
(4) The Period of reform

2.29. The amendments made from time to time in the lndian Succession Act
of 1925 can be said to 1'ep1'E{Sent the period of reforms. This reform has been
rather slow in its pace and tlrerelore not perceptible. This slow pace is, in part,
due to the fact that the law of intestate succession applicable to the two important
communities in India-- Hindus and Mus1ims--fal1s outside the ambit of the
Indian Succession Act. The slow pace of reform is, in part, also due to the fact
that the practice of executing Wills (a topic which forms the bulk of the subject
matter of the Act), has only recently become widely prevalent in the Mofussil.

'However, to some extent, the Slow pace of reform must also be attributed to

the fact that no systematic attempt at a review of the Act in all its aspects has
been undertaken since 1925. Such amendments as have been effected in the Act
were due to some urgently felt need to deal with a particular problem or demand
for reform that could not be postponed for a long time. This is understandable,
because matters falling within the lawyer's law generally do not find priority on
the legislative agenda.

V I . Parsis

2.30. Developments concerning the law of succession applicable t_o Parsis
are, however, of interest and may be dealt with in some detail. As early as
1835, the Parsee community' had represented that they were subjcted to serious
disadvantages in the absence of ﬁxed written laws. The third Law Commission
had, in its report expressed the view that the claim of the Parsees to have a
separate law was not borne out. The Parsees, however, were not satisﬁed with
this and, ultimately, in 1864 the Parsee Law Commission was appointed. That
Commission made certain recommendations and the Government of India agreed

with them.

2.31. In the case of m-ofussil Parsees, it was almost impossible to ascertain
with precision the Persee customs, because on many points the Parsees of Surat,
Broach, Poona and Ahmedabad differed from each other and all of them
differed from the Parsees in Bombay.' The Parsees in the Presidency Towns

Legal History (1972), page 560.



15

were subject to the English law. The English law of primogeniture was not
allowed to them through' an Act of 1837. The English statute of distribution
was, however, applied. The Privy Council had already held that in the Supreme
Courts, the Parsees could not claim the beneﬁt of the English Ecclesiastical law
as to the matrimonial causes among them. On the whole, the position was
extremely unsatisfactory. The Parsee Law Commission recommended that a
separate law should be enacted for the entire Parsee community in the Presidency
Town as well as in the mofussil, as diﬂerent systems of law applicable to the
same community led to perplexity. -Consequently, a separate Act governing
intestate succession amongst the Parsees was passed. This has now been incor-
porated in sections 50--56 of the Indian Succession Act, 1925,

CHAPTER 3
PRELIMINARY
I. Title and deﬁnitions
3.]. This Chapter will deal with certain preliminary matters. Scope.

3.2. Section 1 deals with the short title of the Act and, in accordance with Section 1 shomme
I

the practice then in force, the word "Indian" occurs as a part of the short title.
The practice in modern times is, however, different. We recommend that the word
"Indian" should be omitted from the short title, in conformity with recent
practice. It may be noted that when revising earlier Acts also recent legislative
practice has been to delete the word "Indian" from the short title.

3.2A. In the comments received on the Working Paper, one of the com-- . .
ments forwarded with the letter of the Catholic Bishops Conference of Ii1dia'§e"ég§si::g"(f§:°'Wd
raises certain issues and points concerning the application of Succession Act to '
Goa. It has, for example, been stated that in Goa, Christians, Hindus and Muslims
are subject to the same law and if the Succession Act is made applicable to Goa,
it will create unnecessary divisions on communal lines. In this context, we may
mention that a proposal regarding the application of Succession Act to Goa is
not being made in this Report, nor was any such proposal contained in the
Working-Paper issued by the Commission on the subject.

3.3. Section 2 contains deﬁnitions of certain important expressions used Deﬁnitions in

in the operative provisions of the Act. It would be of interest to classify them section 2.
according to the subjects to which they relate. Two of the deﬁnitions-clauses

(a) and (c)--dea1 with certain functionaries acting under a will. One of the
deﬁnitions----clause (bb)----deals with a judicial functionary. Three of the deﬁni-

tions deal with certain fundamental concepts relating to wills----clauses (b)1, (f)

and (h). Two deal with certain classes of pcrsons--clauses (d) and (e). Two

are territorial--clauses (cc) and (g).

Before discussing the existing deﬁnitions, it is necessary to consider certain
points indicating the need for the insertion of new deﬁnitions.

II. New deﬁnitions to be inserted

3.4. The persons to whom the Succession Act does not apply, are to be Expressions denot-
ascertained from several provisions of the Act' Expressions which have been ins' 8DD1i¢ati0n of
used in various sections in this context have come up for judicial construction. gégnécfhggnd "°°d '°
While it is not practicable to codify all the propositions laid down in the judicial '
decisions, it seems to be advisable to consider codiﬁcation of at least some of the
important propositions, so that the Act may be self-contained in respect of the

salient matters concerning its applicability. Some of these points are stated below,
by way of illustration.

'Central Act 9 of 1837. Succession to Parsis Immovable Property Act (9 of 1837).

9Compare the amendment made in the short title of the Sale of Goods Act, 1930, wherein the
word 'Indian' has been omitted.

"Catholic Bishops Conference of India Letter dt. 3rd October, 1984.

'Sections 3, 29(1) 58(2) and 217 (The list is merely illustrative).



lo

(1) Hindus----Most sections of the Act now apply to Hindus.

(2) Indian C/trist1'ans-----One of the sections of the Act' does not apply to
'Indian Christains'--an expression separately deﬁned? The expression seems to
have come up for consideration before the Rangoon High Court} which held
that the court cannot inquire into the internal convictions of a person. We
have received a comment on the Working Paper through a letter of the Catholic
Bishops' Conference,' in which it is stated that the terms "Indian Christians" and
"native Christians" should be avoided, and simply the expression "Christians"
should be used in the Act. It is stated that Christians should be considered as an
integral community in India. We have given the suggestion very careful considera_
tion, but we ﬁnd it impracticable to accept it. The adjective "Indian" had to be
used, since certain rules applicable to Christians coming from outside India are
intended not to apply to Indian Christians as deﬁned in the Act. So long as this
scheme is to be maintained--and this is a matter of substance not of mere
phraseology----some berbal device will necessarily have to be employed to indicate
the line of demarcation. If the formula "Indian Christian" is decided to be
avoided, something similar will have to be substituted in its place. The use of
the expression in question does not, so far as we can see, affect the integral
character of the community, from the social angle.

Recommendation (3) Parsis--Some of the sections of the Act apply to Parsis. The expression
to ipscrtg doﬂlition 'Parsi' is not deﬁned in the Act. The Parsi Marriage Act,5 deﬁnes it as meaning
°f Pam' a 'Parsis Zeroastrain'. The deﬁnition given in that Act is suitable for adoption

for the purposes of the Succession Act also. We, therefore, recommend that it
should be so adopted. by inserting' a new deﬁnition in the Act for the purpose.

(4) Portuguese----_It seems to have been held by the Bombay High Court'
that the Portuguese are not governed by the Act. '

_R°°0mm¢ndali'?" 10 3.5. The expression 'Hindu' has not been deﬁned at any place in the Indian

g}S°.'IfIin':'1u.d°ﬁ"'u°" Succession Act. Nice questions have arisen with reference to the meaning of this
expression for the purposes of the Act. For example, the view has been expressed
that the word 'Hindu' is a theological term, and denotes a person professing any
form of Brahmanical religion or religion of the Puranas.

This view would exclude non-Aryan natives like Santhals, Kols, Nagas and
Bhils." 9 That the term 'Hindu' is used as a theological term, was also the view
expressed in a Bombay case."

Statutory deﬁnitlon 3.6. In this context, it is proper to refer to several statutory definitions of
05 'Hind"' 'Hindu' that have now come into existence.

The following is an extract of section 2 of the Hindu Succession Act, 1956.

1

Application ot A I. "Section 2(1). This Act applies----
(a) to any person who is a Hindu by~religion in any of its forms or
developments, including a Virashaiva, Lingayat or a follower of the
Brahme, Prarthana or Arya Samaj.

(b) to any person who is a Budhist, Jain or Sikh by religion.

(c) to any other person domiciled in the territories to which this Act
extends who is not a Muslim, Christian. Parsi or Jew bv religin. unless
it is proved that any such person would not have been governed by
the Hindu Law orby any custom or usage as part of that law in
respect of any of the matters, dealt with herein if this Act had not
been passed.

'Section 33A.

'Section 2 (d).

"Ma Klzin, T/ran v. Ma Alum, AIR 1934 Rang. 72.

'Catholic Bishops' Conference of India, letter dated 3rd October, 1984.

5Parsi Marriage & Divorce Act (3 of 1936).

"To be carried out in section 2, by inserting a deﬁnition of the expression 'Parsi'. '
7AnIas v. Ardesir, (1901) 2 Bombay Law Reporter 431.

"Stokes, Succession Act, page 201, cited by ND.
Basu, Succession Act (1957), page 31.
'Also Stokes, Anglo-Indian Codes. page 483.
"'Dagree v. Paw (Ii Sen Jan, (1895) L.I.R. 19 Born. 783, 789 (per Starling J.)



17

Iirplaizatiarz : lhe following persons are Hindus, Buddhists, Jainas or Sikhs
by religion, as the case may be :----

(zi) any child, legitimate or illegitimate, both of whose parents are
Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu,
Buddhist, Jaina or Sikh by religion and who is brought up as a member
of the tribe, community. group or family to which such parent
belongs or belonged;

(C) any person who is a convert or l'€~COIl\-'Cl't to the Hindu. Buddhist.
Jaina or Sikh religion.

(2) Notwithstanding anything contained in subsection (1), nothing con-
tained in this Act shall apply to the members of any Scheduled Tribe within
the meaning of clause (25) of Article 366 of the Constitution unless the
Central Government, by notiﬁcation in the official Gazette, otherwise directs.

(3) '1 he expression 'I-Iindu' in any portion of this Act shall be construed
as if it included a person who, though not a Hindu by religion, is neverthe-
less a person to whom this Act applies by virtue of the provisions contained
in this section". -

In the same terms is section 2(1) of the Hindu Marriage Act. l955.

3.7. In our opinion, it is desirable to adopt the above deﬁnition for the R°°.°mm°"da"'?'!
' to insert deﬁnition

purposes of the Indian Succession Act also, so as to secure uniformity. A person otuﬂindu.
to whom the Hindu Succession Act applies would then be regarded as a "Hindu" '
for the purposes of the Indian Succession Act also.

Accordingly, we recommend that a deﬁnition of 'Hindu' should be inserted'
to the eﬁect, that the expression 'Hindu' has (in this Act) the same meaning" as
in the Hindu Succession Act. 1956. S

3.8. The Act does not, at present, deﬁne the expression 'Child'. For reasons §°e'::l°" De%(n"i'g;
which we shall state later," it is necessary to add a deﬁnition of this expression as of --Child»:
recommended.

follows '2
" ( aa ) 'c/iild' z'nc'lude.s'--

(a) an adopted child, in the ('use of any one whose persanal law perniils
udoption.

(b) "an illegitimate c"/iild".

lﬂ. Existing deﬁnition

3.9. We now proceed to consider the existing deﬁnitions given in section 2. section 2(,,)
' ' "administrator"

Under Section 2(a), "administrator" means a person appointed by competent
authority to administer the estate of a deceased person when there is no executor.
The clause needs no change.

A deﬁnition of "child" may be added, for reasons already stated.' .
. , . .,, . . Se ' 2b)

3.10. Sectzon 2(b) provides that 'codicil means an instrument made in "¢¢C;t¢ii:;Iii*~l
relation to a will, and explaining, altering or adding to its dispositions. and shall
be deemed to form part of the will.

The deﬁnition needs no change.

'To be carried out by amending section 2, by inserting a deﬁnition of "I-lin<'.=.' .

9In consequence, expressions referring to Buddhists. Sikhs and Jainas along with Hindus,
wherever they occur, may be omitted.

'See para 8.18 infra (section 37).

'See para 3.8 mpm.



18

Section 2(bb) "Dis- 3.11. Under. section 2(bb), inserted in 1929, "District Judge" means the
met 1Ud8e"- Judge of a principal civil court of original jurisdiction. The main object of the
deﬁnition was to cover the High Court in its ordinary original civil jurisdiction.

It has been held' that "District Judge" (in the Succession Act) includes an
Additional District Judge.

The deﬁnition needs no change.

Section 2(c) "exe- 3.12. Section 2(c) deﬁnes "executor" as meaning a person to whom the
Cut" - execution of the last will of a deceased person is, by the testator's appointment,
conﬁded.
It needs no 'change.

Secti0_n_ 2(¢c)(NeW 3.13. A deﬁnition of the expression "Hindu" should be inserted, on the
Pﬁlﬁéiéganff be in_ lines already recommended."

serted. _ n _ .

Section 2g!)"Indian 3114. Under section 2(d), _the expression "Indian Christian" means a native
Christian o of India who is, or in good faith claims to be of unmixed Asiatic descent and

who professes any form of the Christian religion.

The deﬁnition follows that given in an earlier Act3 except that the phrase
'Indian Christian' has been used in place of the earlier, phrase 'Native Christian'.

The expression has been held to include converts to Christianity'.

The Indian Marriage Act5 appears to have been the ﬁrst Central Act to use
the expression "native christian". The terminology was, with one change, continued
in the Indian Christian Marriage Act, 1872. The Indian Divorce Act, 1869 does
not use the expression, since it does not make a distinction between native or
Indian Christians and other Christians.

The deﬁnition in the present Act requires three ingredients (i) native of
India, (ii) unmixed Asiatic decent and (iii) profession of the Christian religion.

Although, at the ﬁrst sight, the requirement that the person concerned must
be a native of India may recall to one's mind the days of foreign domination, the
real intention is to emphasise that there must be some link with India and that

mere religion is not enough.

As regards the requirement of unmixed Asiatic descent, the intention was
apparently to demarcate such persons from those who were of Western descent
for example Anglo-Indians. Thus, a link with India and descent from Asiatic

stock, have some signiﬁcance.

3.l4A. In a comment received by us through the Catholic Bishops Con-
ference,' a reservation is expressed about the qualiﬁcation "unmixed Asiatic
descent" which is -required for an Indian Christian. The following criticism has

been offered in the comment :--

"Anglo-Indians would not qualify to Indian Christians according to this
deﬁnition. There would not be any difﬁculty if by their not coming under this
section it would be advantageous to them, but it is not advantageous to them.
Further the question of non-Anglo-Indian Christian marrying an Anglo-Indian
girl would give rise to problems. Since the father is not an Anglo-Indian the
children would not be Anglo-Indians. But since they are not of unmixed Asiatic
descent they would not come under the Indian Succession Act. There is no law
apparentlv under which the children would come. If the special provision for
Anglo-Indians is to be retained could not the children follow the status of the

father?"

1(a)'Sagar Chaudhury v. Nabin Ch. Chaudhury AIR 1970 Assam 111, 113.
_ (b) Ganpat v. Mahadeo, AIR 1949 Nag. 408, para 7.
asee paragraphs 3 .3. and 3.4., supra.
"Native Christians Administration of Estates Act (7 of 1901).
4(a) Dwarka Nath V. Raj Ram', AIR 1932 Oudh 85;

(b) Kamawar! v. Digbijai Sitzgh, AIR 1922 RC. 14.
"The Indian Marriage Act, 1865 (S of 1865).

c Bishops' Conference of India, letter dated 3rd October 1984.



1')

We ﬁnd ourselves unable to accept the suggestion. We would like to point
'out that Anglo-Indians are not governed by provisions applicable to Indian
Christians but by provisions applicable to other communities, that is to say, the
residuary class from which are excluded the speciﬁed communities such as Hindus,
Muslims, Buddhists, Sikhs, Jains, Parsis and Indian Christians. As regards the
question of a non-Anglo-Indian Christian marrying an Anglo--Indian girl, it is
to be pointed out that the problem of determining for legal purposes the religion
of the child of such mixed parentage is a matter outside the purview of the
Succession Act. In the circumstances, we do not think that any amendment is

called for in the Succession Act, on the point in issue.

3.14B. The only improvement which can be possibly considered is as regards
the word "native". But this will only be a verbal improvement. Some kind of,
link or association with India is of the essence of the concept of Indian Christians,
and unless a better word can be found, it is not possible to change the deﬁnition

in clause _(d).

3.15. Section 2(e) deﬁnes "Min0r" as meaning any person subject to the section 2(¢)
Indian Majority Act, 1875 (9 of 1875), who has not attained his majority "Minor".
within the meaning of that Act, and any other person who has not completed
the age of eighteen years and "minority" is defined as meaning the status of any

such person. --

The deﬁnition needs no change.

3.16. As already recommended', a deﬁnition of the expression "parsi" should Definition of .
be inserted. "R"S'"'° b°3dd°d-

3.l7. In section 2 (f), "probate" is deﬁned as meaning the copy of a will Section 2(f)._.
certiﬁed under the seal of a court of competent jurisdiction with a grant of "1'F°ba'e"
administration to the estate of the testator. The form of probate is given in the
Sixth Schedule to the Act. On a comparison of the deﬁnition with the form one
ﬁnds that "probate" is deﬁned inaccurately, "Probate" does not, in strictness,
mean the copy of a will, but the certiﬁcate of the Court, to which a copy of the

will is attached. ,

The distinctive characteristic of probate is that it establishes the validity
of a particular will for all purposes and so as to bind all persons. The grant of
a probate, makes it unnecessary for an executor to have to "prove" the will on
every occasion on which he seeks to rely upon it". In other words, probate and
letters of administration with a will annexed, while un-revoked, are conclusive
evidence of the due executions and validity of the will".

3.18. We are not, at the moment, concerned with the view that the grant Defgcg in pm,"
of probate is a "decree" of the court----a. xdew expressed by Markby J. in adeﬁnition of rpm.
Calcutta case', or with the opposite view that a probate is not a judgment, order ha' -
or decree----a view taken in a later Calcutta cases and also in a Patna case'. What
is material for our purpose is the most important element of a probate--a
certiﬁcate of proof issued by the proper officer of the court. This element is
missing in the present deﬁnition, as contained in Section 2 (f), though it is
indicated very clearly in the Form of Probate7 prescribed by the Act in the Sixth

Schedule. »

In this sense, there arises a discrepancy between the deﬁnition and the Form,
in so far as the essential feature of 'proof' and 'certiﬁcate' is left out in the

deﬁnition.

'Para 3 .4, supra.

"Gareth Muller, Machinery of Succession (1977) page 75.

3Whicker v. Hume, (1858) 7 House of Lords Cases 124, 143, 156, 165.
'Komollochun v. Niruttan, (1879) ILR 4 Cal.'360. V
5Rajib Panda v. Lakhrm Sendh, (1900) ILR 27 Cal. 1 l.

'Raj Kishor v. Promode_ Bilzari (1943),
ILR 22 Pat. 756, (Section 296 relied on).

"Sixth Schedule, read with section 289.



'with conflict of

20

Recommendation 3.19. It appears to us that this discrepancy between the deﬁnition in sec-

Y<?,am€1'§' the d°§'tion 2(f) and the Form of Probate as given in the Sixth Schedule should be

""'°" °f Probatc 'removed. With that object in view. we recommend that the deﬁnition of "probate"
in Section 2(f) should be revised as a "«1nc1m1en.r issued in respect of r. will
under the signature of the proper nﬁicer of the court, certifying that the original
will was proved on a certain date and attac/ulng a certiﬁed '30/)_v of the will, with
a grant of administration to the estate of the testator."

5°'?'i°". 2"°'h°' 3.20. No other points need to be made concerning section 3.
points if any.
IV. Exempted persons
Swion 3"P°"/'er 3.21. This takes us to section 3. Section 3 gives power to the State Govern-

to grant exemption _ , ,
ment to exempt the members of any race, sect or tribe in the State lrom the opera-

tion of the speciﬁed sections. The power is to be exercised where the State
Government considers it impossible or inexpedient to apply such provisions to
them. Such persons are called "exempted persons".

We have no comments on this section, which appears still to possess some
utility in view of the peculiar social and economic conditions prevailing amongst
certain groups or in certain local areas.

CHAPTER-4

CONFLICT OF LAWS'
(Section 3 A et scg.)

1. Section 5--Placing

tslggafcif toPa"'1c'a'} 4.1. At this stage, we would like to interrupt our consideration of the sub-

stantive sections of the Act and refer to one matter which is of considerable
pi'a<.t.Ica] importance. The Act, in s'x:t'i0n 3. deals with the law applicable to suc~
cession. This provision is included in Part II entitled 'Domicile', In fact. however.
the section deals with a basic principle of conﬂict of laws. "Domicile" is mentioned
in the section as only one of the criteria for determining the law applicable.
Essentially, the section deals with the law applicable. To bring out this essential
character of section 5. the section should reallv appear in a separate Part which
can be placed say. (after Part it, as Part I/\. That Part could be given the' head-
ing "Conflict of Laws" and section 5 included therein." If any other rules" of
conﬂict of laws related to testamentary and intestate succession are considered
appropriate for being codiﬁed, they can also be conveniently included in the

same Part.

KWS.

II. Formalities in respect of wills

3'13: 515090: rflfl. 4.2. We may state that apart' from section 5, there are certain other speciﬁc
§a1a1§w'"a:da}§;_topics' relating to the law of succession which have an interest from the point
malities in wins.' of View of private international law. To cite one example. the question of forma-
' lities in relation to the execution of wills has important international aspects. The
formalities prescribed by law for the execution of a will often differ from country

to country. Cases may conceivably occur where a person in country X executes

a will which comes up for probate in country Y. When a testator domiciled in

one country makes a will abroad or dies abroad or disposes of propertv situated

in more than one country. the question then arises, what would be the set of

rules that apply ? The situation creates some difﬁculty in the absence of a deﬁnite

rule on_ the subiect in municipal legislation. This is not a mere hypotltetical

question. There have been actual situations in which such anomalies have arisen.

'To be introduced as P:-.11 IA in the Act.
3For the concrete recommendation. see para 4.20, infra.
"For an illustration see para 4.4 to 4.8 infra.

'Para 4.]. supra.

-"See also paragmtphs 4. I9 and 4.20. infra.



21

For example, in one Of the leading English cases on the subjectl, a will of
movable property made in the English form (outside the UK) by a British subject
who died domiciled in France was held to be invalid, since it neglected the forma-
lities prescribed by French law (the law of domicile), even though it complied
with the requirements of English law. In Eugland'~', the position has been modiﬁed
by statute, but in India, there being no such legislation this would be the position

even today under Section 5.

4.3. In the field of conﬂict of laws, formalities in relation to wills are
governed by certain connecting factors". These connecting factors depend on the
judicial or legislative approach to the subject as adopted in the country concer-
ned. Under the Indian Succession Act however. the only connecting factors,
applicable for determining questions as to the formalities of wills are those men-
tioned in section 5, sub-section (1) and (2). The section makes applicable the
law of India in the case of immovable property, and the law of the country of
domicile in the case of movable property. There has, so far. been no elaborate
development of the concept of "proper law" of the "will" in India.

Although section 5 does not, in so many words, specilically enact that it
applies to formalities as to wills. that seems to follow from the wide language of
the section. namely, "succession to the  property of a person deceased is
regulated by . . ." It has, for example', been held that the validity of a will which'
purported to dispose of immovable property in British India must be tested by
the rules applicable in India as to the execution of wills.

The section seems to covernot only the law of intestate succession, but
also the law of wills in all its aspects. namely, their formal validity. essential
validity (including capacity of testators ond validity of dispositions) and questions
of interpretation and legal effect of wills.

4.4. Since section 5 disregards (i) nationality of the testators or his domicile Formal rvalidity
at the time of execution of the testament (known as domicile tcmpore testamente) :'i's';"t'.'r](',°; g'n'5°
and (ii) the law of the place of execution, certain anomalies could arise' in '

regard to the formal validity of wills.

III. Legislation in England as to formalities

4.5. To remedy some of these anomalies, in England, the Wills Act, 1861 Wills 5"» 135'-

(Lord Kingsdowne's Act) was passed. It enacted a provision that a will of
personal property made out of the United Kingdom by a British subject should
be admissible to probate, if it satisﬁed the formalities required by the lex loci
aclus or by the law of the testator's domicile tempore testmenle or by the law of
the domicile of origin if such domicile was in Her Majesty's Dominions. These
creteria should be a substitute for the traditional test of domicile. If the will was
made within the UK. the only permissible substitute was the let loci actus.

4.6. Before 1861, a will. according to English law. had to be made in the £g§"'°"1'8':"F-"3"'"d
form prescribed by the law of the testators domicile at the time of death, at least we ' '
in relation to movables. Neither the law of his domicile at the time
of the execution of the will, nor that of the place where he made the will, sulﬁced.
The situation was highly unsatisfactory. /\ domiciled Englishman who fell ill
while travelling abroad and wished to make will immediately might have diﬂieully

in ﬁnding a lawyer who could assist. him in making u will in //re English form.
while it would be easy to use the local form'.

The Act of 1861 remedied' the situation to s0me extent.

4.7 The English Act of 1861, though welcome as an improvement. did not
effect an adequate reform in the Law. In 1963. the Wills Act was passed' which

'Sremer V'. Freeman. (1857) 18 Moore P.C. 306: 14 F.R. 508.
9Paragraphs 4.5 to 4.8 infra.

"Morris in (1946) 62 L.Q.R. 170, 173, I76.

"Blinuruo \'. l,n,\'mi/mi, (I996). ILR 'Z0 Rom. 607, 610.

'Para 4.2, supra. '

"Wolff, Private International Law (1950), page 584, para 559.
7P-ara 4.5, supra. V

"Cf. Fourth Report of the Private International Law Committee (1958) comd. 491



22

(while repealing the Act of 1861), has made comprehensive provisions by in-
creasing the relevant connecting factors. Nationality and habitual residence are
now added to the factors earlier recognised (by the common law and by the
Wills Act, 1861), namely, domicile and locus at'tus'""'"'.

Summary of Eng- _ 4.8. It may be useful to give, at this stage, some idea of the scheme of the
"Sh AC3 0' 1953- Wills Act, 1963. Leaving aside provisions not material for our purpose, the
subject dealt, within the Act sectionwise are as follows :--

Section 1 : enacts a general rule as to formal validity of wills. A will shall
be treated as properly executed if its execution conformed to the
"internal law" in force in the territory where it was executed or in
the territory where at the time of its execution or at the time of testator's
death, he was domiciled or habitually resident, or in a state of which,
at either of these times, he was a national.

The phrase "internal Law" is deﬁned as the law which would apply in a
case where no question of the law in force in any other country or place arose.
It thus avoids the possibility of application of the doctrine of renvoi.

Provision is made to determine "internal law" in regard to a country
where more than one system is in force.

Section 2(1) 2 Provides additional rules (i.e., in addition to section l), to
deal with-

(a) wills executed on board a vessel or aircraft,

_(b) wills disposing of immovable property (the law in force in the
territory where the property was situated is adopted),

(c) a will, revoking an earlier will, and,

l (d) a will exercising a power of appointment (the law governing the
essential validity of the power is adopted).

The important provisions in this regard arc--

(a) a will executed on board a vessel or aircraft of any description, if it
complied with the law of the place with which the vessel or aircraft
may be taken to have been most closely connected having regard to
its registration (if any) and other relevant circumstances, is properly
executed.

(b) a will disposing of immovable property, if it complies with the law
in force in the place where the property was situated, is properly
executed.

(c) a will revoking a will which was executed under the Act if it complied
with the same law as the revoked will did, is properly executed.

Section 2(2) : Provides, in effect, that in regard to a will exercising a power
of appointment, non-compliance with formal requirements contained
in the instrument creating the power would not render the will inopera-
tive.

Section 3 2 Provides that any requirements of a foreign law (that is,_ the
foreign law which would become relevant under the tests adopted in
the Act), prescribing special formalities to be observed by "testators
answering a particular description" or prescribing certain qualiﬁcations
to be possessed by witnesses to wills, are to be treated as formal
requirements only".

Section 4 : Provides that the construction of a will shall not be altered by
reason of any change in the testator's domicile after the execution of
the will. This re-enacts section 3 (in part) of the Wills Act, 1861.

'Cheshire, Private International Law (1970), page 591.
2The Act of 1963 has been noted on by Morris (1964) 13 l.CL.Q.'684; Kahn Fraund l(l964)
27 Modern Law Review 55.
"See illustrative hypothetical cases, inﬂm. (Para 4.15).



ix)
U.)

Section 5 : Relates to Scotland.
Section 6 : Contains provisions for interpretation.

Section 7(1). (2) and (3) ; contain certain provisions not of interest to
India.

Section 7(4) : Makes provisions as to the operation of the Act from the
point of view of time. It provides that the Act shall not apply to a will
of a testator who died before the commencement of the Act, but shall
apply to a will of a testator who dies after such commencement. whether
the will was executed before or after that time.

4.9. So much as regards the scheme of the English Act of 1963. It may be principle underlying
useful now to state brieﬂy the rationale underlying some of the important pro- Section 1 of the
visions. The principle underlying section 1 of the Act, which enumerates several E"31'5h-'*°' °"953-
alternative tests for determining the formal validity of wills, is that while only
those documents should be accepted as valid wills, of which it can be said with
reasonable certainty that they were executed by the testator with the intention of
disposing of his assets after his death, a document which fulﬁls these conditions
ought to be accepted as valid and ought not to be excluded because of some
technical imperfections of which the testor might reasonably .have been unware.

Accordingly, the Act seeks to secure that if the testator complies with the
formal requirements of any system of law which he may reasonably assume to be
applicable, his will should be treated as formally valid. The Act thus increases
the possible systems of law to which reference may be made to establish the-
formal validity of wills. Validity by one of them is sufficient.'

4.10. One of the tests given in section 1 of the English Act of 1963 is Habitual residence-
"habitual residence". Cheshire's comments? as to the position resulting from the
Act in regard to habitual residence are interesting :--

"With this old adoption of the test of habitual residence, the frustration
arising from the disparity between the Anglo-Saxon and Continental con-
cepts of domicile will almost be a memory of the past in this limited ﬁeld.
At any rate, if a testator makes a will according to the law of the country
where he has spent the greater part of his life, there will no longer be any
occasion to counter the plausible argument that his domicile was elsewhere
since he 'did not intend his residence to be permanent".

It may be pointed out that under section 1 of the English Act, a will is to
be treated as properly executed if its -execution conformed to the law in force
in the place----

(i) where the will was executed,
(ii) where the testator was domiciled,
(iii) where the testator had his habitual residence, or

(iv) of which the testator was a national.

The ﬁrst of these choices (place of execution) can relate, in time and place,
only to the execution itself, but the other three expressly refer to the relevant

' place either at the execution of the will or at the testator's death'.

4.11. The law of the place where the will was made, is given an
extended deﬁnition in the case of wills made on board a vessel or aircraft "of Section 2(l)(a),
any description". Section 2(1) (a) of the English Act of 1963 allows (inEnglish Act. 1963.
addition to law of the place of execution), another alternative, namely, the
internal law in force in the territory to which the vessel or aircraft may be
taken to have been most closely connected. Normally, this would be the flag

'Cf. Sykes & Pryles, Australian Private
International Law (1979), page 449.
2Cheshire, Private International Law (1970), page 592.
3Ch. Ramsay v. Liverpool Royal Infirmary, (1938) A.C. 588.
'J.T. Farrand, "Foreign Wills and the Wills Act" (1963), 103 S.J. 686, 687.



View of Cheshire
as to vessels.

Principle as to the
law of ship.

Main tests adopted

24

state. in this context, the English Act does not require the vessel or aircraft to
be in motion when the will is executed, Hence a holograph will made on board
a French ship alongside in London docks, or on board a French aircraft grounded
at London airport, might be admissible to probate'.

4.12. Chcsltire' thus explains the position as to vessels:--

"Where a will is made on board a vassel or aircraft whether civil or not,
tlrc identity of the [ex loci actus receives special statutory treatment. If at
the time of execution the aircraft is grounded in a particular territory or
the vessel is within territorial waters, the testator may comply with the
internal law of that territory. Alternatively, he may comply with the internal
law of the territory with which, having regard to its registration and other
relevant circumstances, the vessel or aircraft, whether in course of transit
or not, has the closest connexion3. Judged by this test, the [ex l0ci will
normally be the law of the ﬂag, which is represented by the law of the
territory where the ship or aircraft is registered if the ﬂag is common to a
political unit containing a variety of legal systems".

4.13. Mention may, in this context, be madeof the principle that the "local

law" operating on board a ship is the law of the ﬂag ﬂown by the ship' and that
the law governs transactions on board, including marriages to the same extent
as they would be governed by the l('.\' loci if they took place elsewhere.'

4.14, By way of a very brief summary of the main tests adoptcdin sections

in the English Act. 1-2 of the Wills Act, 1963, it may be stated that a will of movables or land is

Qperation of sec-
tion 3, 1963 Act,

illustrated.

taken as properly executed' if its execution conforms to the internal law in force
in the territory where it was executed, or in the territory where at the time of
lexiecution of the will or at the time of the testator's death the testator was
domiciled, or had his habitual residence or in a State of which at either of these
times he was a national.'

In addition, a will of immovables is to be treated as properly executed if

its execution conforms to the internal law in force in the territory where the pro-
perty is situated.

4.15. So much as regards sections 1 and 2 of the English Act of 1963. The

operation of section 3 of the English Act of 1963 could be illustrated by taking
hypothetical cases involving the application of statutory provisions in force in
Netherlands' and in France."

(i) Dutch law allows a holograph will by a Dutchman, but not outside

Netherlands. It appears that there are similar provisions in Greece, Portugal and
Uruguay". A Dutchman domiciled in England executes such a will, The will
does not acquire any validity by virtue of the Act of 1963, because the English
law (law of domicile) does not allowa holograph will, and Dutch law (law of
nationality) does not allow it outside Netherlands. This prohibition in Dutch law,
being regarded as a "matter of form"--section 3--would continue to apply.

(ll) By German law. a will can be made by a persomabove 16 years, but

only a person above 21 years can make a holograph will. A German above

'Morris. "The Wills Act, 1963, 13 l.C.L.Q. 684, 688.

'-'Cheshire. Private International Law (1970) p. 591.

"Section 2(1) (u).

'Cf. Cheshire. Private international Law (1970), page 282.

5.l.D. White . "Marriages at Sea" 17 L.Q.R. 283, 292.

"(a) Halsbury, 4th Ed., Vol. 7., page 101.

(b) Jackson. Formation and Annulment of Marriage, page 226.

(c) Marriage on the "High Seas" (l928~29) 38 Yale LJ. 1129. 1135.

'Section 1. Wills Act, 1963.

"Section 2 (1) (/2), Wills Act, 1963.

"Article 992, Dutch Civil Code, referred to by Kahn-Fraund in note on the Wills Act, 1963
(1964) 27 Modern Law Rev. 55. 58. 59, . Also see Wolff. Private International Law (1950),
page 589.

"'Articles 969 and 970, French Civil Code referred by to Kahn-Fraund in note on the Wills Act,
1963 (1964) 27 Modern Law Review 55,58, 59.

"Wolff, Private International Law (1950), page 589.



25

lo I]]u1\C5 a holograph will in Fraticc (French Ian allows holograpli wills). The
will is valid, because French law (the law of place of execution) permits it. The
fact that German law prohibits it to persons under 21 becomes immaterial, since
section 3 provides that it is a matter of form.

A-L16. According to section 4 of the English Act of 1963, no will becomes Ettsct of section 4
invalid by reason of any subsequent change of the testator's domicile. This rule °f 'ht' English AC'-
applics not only to the formalities of a will. but also to the testator's capacity to
make one. It applies not only to British subjects, but also to any testator of what-
ever nationality and whatever domicile. The result of this is that if the testator,
when making the will, was capable of doing so under the law of his domicile at
that time, the will remains. valid. even though, under the law of his last domicile:
it would have been void on the ground of his incapacity. in the example given
above} therefore, the will made by a sixteen year old German testator in Germany
should be regarded as valid. even if the testator dies domiciled in England.

4.17. The impression one gains from the Act is that all the choices likely Wide 50096 of the
to be hit upon in practice have been put in, on the principle that no will should A"-
be invalid for want of form, provided that it complies with some law which the
testator has at least had a temporary connection?

4.18. This. in brief. is the scheme of the English Act, whose most important Rccommendation--
etiect is the widening of the connecting factors in relation to the formal validity 7'i.°°d .f°" "dd'"°!'
of \vills. It appears to us that having regard to the Considerations mentioned at gionzuggggifngrotﬁg
the outset in this Chapterg, the connecting factors that could possibly operate in English Act of
relation to the formal validity of wills should be made more liberal than at 1961
present, in order to avoid anomalies of the nature that arose in England in the
last century' and similar other anomalies that could possibly arise, To avoid such
anomalies, the (English) Wills Act, 1963 was passed. As that Act furnishes a
good precedent, we recommend the adoption of its provisions with appropriate .

adaptations and modiﬁcations.

To avoid a possible inconsistency in the legislation, it will, as a consequential
change, be necessary to modify5 suitably the test of section 5. We shall make a
recommendation for its amendment at the appropriate place.

4.19. It will be noticed that some of the tests that will become operative Amendment of
under the proposed new provision" are not mentioned in section 5. That section §;°(')'rg" e5d3L'°
provides for only two criteria (law of domicile of a person at the time of his m D e '
death or the law of India). On the addition of the proposed tests, the restrictive
rule contained in section 5 would, to that extent, become inaccurate.

VI. Recommendation asto as to new sections

4.20_ In the light of the above 'discussion, we recommend the insertion Draft section to be

of the following new sections to deal with the rules of conflict of laws as to the l".5°"°d 9° d°a'
with conﬂict rules as

formal validity of wills : I , to formalvaﬁdim
"3A. A will shall be treated as properly e.recuted if its ('.\'€C£l[i(I)1 conformed Generalas to for-
to the internal law in f0rc'e-- '"31 V3l'd"Y-
( a) in the territory where it was executed, or §°9fé3i' 1 Wm' Act'

(b) in the territory where, at the time of its executiim or of the testa-
t0r's death, he was domiciled or had his habitual residence, or

(c) in a state of which, at either of those times, he was a national'.

'Para 4. l4, supra.

'-'Compare J.T. Farrand, "Foreign Wills and the Wills Act" (I963) 107 SJ. 686, 687.
'-'See para 4.2, supra.

'Para 4.6, sttpru.

7'See recommendation as to section 5. para 4.19 . infra.

spam 4,14. supra.

'See proposed sedtion 3E(l)(a).for a deﬁnition of "internal law".



Additional rules.
[Cf. s. 2, Wills Act,
1963]

S. 3B.
Cf. S. 2 (2) English
ACt Of 

Certain require-
ments to be tmted
as formal.

Cf. S. 3 English
Act of 1963.

Construction of
wills.

[Cf. s. 4, Wills Act
1963, reenacting
section 3, Wills Act,
1861]

26

"3B. (1) Without prejudice to the ])t'U1'i.si0t1.s of section 3A, the following
shall be treated as properly exectttct/--

(a) a will executed on board a vessel or aircraft of any description, if
the execution of the will conformed to the internal law in force in the
territory with which, having regard to its registration (if any) and other
relevant circumstances, the vessel or aircraft may be taken to have been
most closely connected,-

'(b) a will so far as it disposes of immovable property, if its execution
conformed to the internal law in force in the territory where the pro-
perty was situated;

(c) a will so far as it revoked a will which under this Act would be
treated as properly executed or revoked a provision which under this
Act would be treated as comprised in a properly e.\'e'cute'd will, if the
execution of the later will conformed to any law by reference to which
the revoked will or provision would be so treated;

(d) a will so far as it exercises a power of appointment, if the execution
of the will conformed to the law governing the essential validity' of
the power.

S. 3B. (2) A will so far as it expresses a power of appointment shall not be
treated as improperly executed by reason only that its execction was not in
accordance with any formal requirements contained in' the instrument creat-
ing the power.

3-C. Where (whether in pursuance of this Act or not) a law in force outside
India, falls to be applied in relation to a will, any requirement of that law
whereby special formalities are to be observed b_y testators answering a parti-
cular description or witnesses to the execution of a will are to possess certain
qualiﬁcations shall be treated notwithstanding any rule of that law to the
contrary, as a formal recuirement only.

"3D. The construction of a will shall not be altered by reason of any change
in the testator's domicile after the execution of the will'.

"3E, (1) in this Chapter------

(a) "internal law" in relation to any territory or state means the law
which would apply in a case where no question of the law in force in
any other territory or state arose,-

(b) "state" means a territory or group of territories having its own
law of nationality;

(c) "will" includes a testamentary instruments or act, and "testat0r"
shall be construed accordingly.

"/ 2) Where, under this Chapter, the internal law in force in any territory
or state is to be applied in the case of a will, but there are in force in that
territory or state two or more systems of internal law relating to the formal
validity of wills, the system to be applied shall be ascertained as follows :-----

(a) if there is in force throughout the territory or state a rule indicating
which of those systems can properly be applied in the case in question,
that rule shall be followed : or '

(b) if there is no such rule, the system shall be that with which the
testator was nzost closely connected at the relevant time, and for this
purpose the relevant time is---- '

(i) the time of the testator's death where the matter is to be deter-
mined by reference to circumstances prevailing at his death, and

(ii) the time of execution of the will, in any other case.

'The expression "essential validity", though not found in Indian Legislative usage so far, is
convenient.

'Compare, in the Estate of Grees, (1904) Probate 269.



27

"(3) In (lc'l€I'I?il/ifilg )'Or the purposes of this Act whether or not the execu-
tion of a will confornzetl to a particular law, regard shall be had to the for-
mal requirements of that law at time of execution, but this shall not prevent
account being taken of an alteration of law aﬂecting wills executed at that
time if the alteration enables the will to be treated as properly e.\'ecutetl."

"(6) This chapter shall not apply to a will of a testator who died btfore
the commencement of the Indian Succession . _ . . . . . . . . . . (Amuztlntent)
Act . . . . . . . . . . . . and shall apply to a will of a testator who dies after such
commencement, whether the will was executed before or after such com-
mencement."

"V. Other aspects of conﬂict of laws

4.21. There may be other aspects of conﬂict of laws concerning the validity Otlmaspccis.
of wills, such as capacity to make or revoke testamentary tli~3pos7tions, the per-
missible types of dispositions, the right to contest them and the legal consequences
of defective execution in general. Legal thinking on these inatters is still in the
process of crystalisation. We do not, at present, therefore, recommend any pro-
vision on these subjects.
1 List of sections deal-

422. It may, ﬁnally, he mentioned as a matter of interest, that severa mp WM me na
sections of the Succession Act deal with the "international" aspects of succession. mjml _,'h.pm Sf
The following is an illustrative list : SllCCCSSl()n,

Section 5'

(Law regulating succession to deceased persons immovable and movable property
respectively)

Section 218
-- (To whom administration may be granted, on intestacy)
Section 219 (g)

(Rules for the grant of administration in respect of property in India, though
the law of domicile is different)

Section 232
(Grant of administration to universal or residuary legatees)
Sections 270-271
(Basis of jurisdiction of the district Judge under the Act)

Section 324

(Application of movable property to the payment of debts, where domicile not
in India)

Section 367
(Transfer of assets from India)

Recommendations for amendment, wherever needed in these sections, would
be made the appropriate place.

CHAPTER 5
DOMICILE
(Sections 4 to 19)

1. Importance of the concept of domicile, and its meaning.

5.1. The next few sections are concerned with the law applicable to succes-- Scope_
sion (section 4). The no ist important doctrine dealt with in those sections is
that of domicile (Sections 5----l9).

'Cf. paras 4.10, to 4.19, supra, for recommendation for amending section 5.
85-L/B(D)l44MofLJ&CA---3



26

P°miCi1P in Private 5.2. Ti; J: portance 'tlléll the concept of domicile possesses in common law

""°m'"'°"a' law ; :.:;dic..ions 5 p 'marily d e no the fact that domicile is a basic concept in private
1 ﬁrnational aw as administered in those jurisdictions.' In Indian law, the eompe-
. nee of Ind 32 rourts to gr-aiit divorce? and the iaw applicable to succession to
niovables3 are ii ustrationx: of ﬁelds of private international law in respect of
which domicile i'; paramount by statute.'

We shai' consider latt-~; certain points of detail which arise out of the sections
dealing with -his subject in th: Succession Act. T he present place, however, seems
to be appropriate for mal;in;_: a few general observations as to domicile, which
is central to the core of many legal systems.

5.3. The status of a person, the matrimonial and family relation and many
other important questions are governed by domicile. The principle of domicile
is, in fact, the core of the system' of private international law. At the present
day, the plaintiffs domicile or residence is a basis of jurisdiction in the majority
of countries.'

Domicile the men, 5.4. In the elegant phrasing of Cheshire,' "Domicile is to status what local

co. space is to a tangible thing".
Domicila in Indian 5.5. That domicile is an important concept is as much true of the Indian
L°8iS1ati0n- Legal system as it is of others. By way of illustration, we may mention certain

enactments in force in India in which domicile has been recognised as suﬂicient
for courts to assume jurisdiction or as relevant for the purposes of determining
the applicable law.

For example, the Special Marriage Act,' which extends to the whole of
India except the State of Jammu and Kashmir, applies also to citizens of India
domiciled in the territories to which the Act extends, if those citizens are in the
State of Iammu and Kashmir. The Hindu Marriage Act,' which extends to the
whole of India except the State of Jammu and Kashmir, applies also to Hindus
domiciled in the territories to which the Act extends, who are outside the said
territories.

Further, while the Act applies to Hindus, it also applies to any other person
domiciled in the territories to which the Act extends being a person who is not
a Muslim, Christian, Parsi or Jew by religion,

It may be mentioned that as early as 1856, the Indian Legislature recognised
domicile as a basis of jurisdiction" in regard to certain proceedings concerning
family law in Indian Courts.

Indian decisions 5.6. These are examples relevant to the application of Indian law or the
in_ the ﬁeld or Hirisdiction of Indian courts. Correspondingly, Indian courts recognise that
P"V3'€ i"**'-"'a'i"- certain matters relating to status are governed by the law of the counrm 0*
ml law' "omicile. For example, in one case" which went upto the Privy Council. deed
of adoption had been executed by a Hindu widow domiciled in Pondiclierrv
(then in French India). It was held by the Privy Council that the widow's capacity
to adopt a son to herself. and the status of the child so adopted as her adoptive
son, are matters to be determined according to French Law (the law of domicile).
'See Law Commission of' India, 65th Report (Recognition of foreign divorces).
"E.G. section 2, Indian Divorce Act, I869.
"Section 5(2), Indian Succtssion Act, 1925.
4Para 5.5, it-fra.
,. . i'-ser Institute. Statumrv Private International Law (1971), pages 36, 110, I31, 170
, "'onﬁict ofl.:,nv=. /1953). Vol. I, pages 429, 432,434, 453, A.L.I., Restatement Second

. ' Sc: 71: (i"7.'!\. 710 American Journal of Comparative Law, pages, 1, 16, 22.2
. .1le and M:-Ari-rnonial proceedings Act, 1973, s. S.

   

1

  

"rivnte Int';-'r~."*i--~~.:? Luv (#947) 3rd. Ed. page 147, cited in Levontine, Choice of
of Laws ('.9"" " :c 5%," footnote 130. '
' .  'ial ".§.~..:-~~'  'ct. 1954.
' ' ."."2(l)«';i  ' ''I'rrI:~,-:.',:',l955.
' ' '*Vid/' ' ' - 1'.';'inze Act, "755.

'°Natm'::ia  3.': ."araya, [;.I.7.{. T950 I'.C. 34.



29

.l111r1g the meaning of "don1icile", _lU_diCial C°n5"'uCd'°n Plays Domicile meaning
, and this remains true even of countries where the rules have
. part.

anworth in Whicker v. Hume' said that domicile meant "home,

iome, and if you do not understand your permanent home, Fm afraid

astrations drawn from foreign writers will very much help you to it".

generally regarded as a workable description, But even this is not

accurate. A person may be domiciled in a country which is not, and

ras been, his home, as in the case of married women in countries where

w on the subject is not altered by statute. By allowing a married woman to

.re her own domicile, one obvious cause of this anomaly goes. Again, a

.on may have more than one "home", but only one "domicile". Conversely,

person may be homeless, but never lacking a domicile. English law attaches

excessive importance to the domicile of origin,--such that the domicile of origin

revives to ﬁll the gap left when a domicile of. choice as abandoned and before

another is acquired. Further, English law requires a heavy burden of proof before

it admits that a domicile of origin has been thrown off. One must note also the

excessive emphasis on animus, (intention), as a factor in the acquisition of a
domicile of choice. '

5.8. Domicile is thus "an idea of law"? But, in the words of Morris,"C0mP1°Xit)'.
although "originally a good idea - - - - . . .. the once simple concept has been so
overloaded by a multitude of cases that it has been transmitted into something
further and further removed from the practical realities of life".

We are referring to this aspect in order to explain why, insome of the
succeeding sections, we have made an attempt to see that the provisions of the
law reﬂect the practical realities of life.

5.9. While, as stated above, domicile is, an important concept both in internal The common law
legislation and in regard to the recognition of certain foreign legal adjudications, System-
it is a peculiarity of the common law system that the concept of domicile is
underscored by certain rules which almost assume the form of categorical impera-

tives. These are-
(l) Every person has a domicile'

(2) There is no period during the life of a human being at which he may
not have a domicile. No gaps are recognised by law, in this regard.'

(3) A person can have only one domicile at a time."
:23:  . . . . .
Holmes announced that' domicile "in its very nature IS one, and if in any
case two are recognised for different purposes, it _is a doubtful anomaly"?

5.10. The combined operation of these rules accounts for the tenacity with Tenacity of the law.
which the law clings to the domicile of origin and the rigidity with which some
of the rules are formulated. To some extent, this rigidity is reﬂected in the attitude
of the law as to the domicile of minors and married women.

11. Domicile in the scheme of the Act.

5.11. It is in this background that the provisions of sections 5-19 relating Background orac-
to domicile were framed. These sections would appear to be almost the ﬁrst ;'c';:;~°*me 5'19 "'
attempt in the common law world to codify a diﬁicult and elusive branch of law. '

'Wicker v. Hume, (1858) 7 H.L.C. 124, 160.

'Bell v. Kenny, (1868) L.R. 1 Sec. & Div. 307, 320 (Lord Westbury).
"Morris, Conﬂict of Laws (1971), page 13.

'Cf. section 7, Succession Act.

'Cf. sections 9 and 13, Succes;ion Act.

'Cf. section 5, Succession Act.

'Williamson v. Osenton, (1914) 232 U.S. 619, 624.

'See now Second Restatement on Conﬂict of Laws, Section 11(2). (1971).



30

In the Indian Succession Act, the concept of domicile i-

in the Part with which we are now concerned ( sections 4 to 19).

deﬁned the application of this Part, section 5 enacts the basic rt
"conflicts" law, namely, that succession to immovable property situ

is regulated by the law of India, while succession to movable propc
lated by the law_ of domicile. Various general_rnodes of_acquiring (lL
dealt with in sections 0 to 13, followed by provisions applicable to_ certai.
situations or to particular classes of persons----such as determination of c
in the case of minority, marriage and insanity. Finally, a practical rule is in
rated in section 19, namely, succession to movable property is govern;
Indian law, in the absence of proof of domicile elsewhere.

III. Section 4.

section 4 Re. 5.12. By virtue of section 4, Part II of the Act (Sections 4 to 18), which
commendation to relates to domicile, does not apply, to Hindus, Mohammadans, Budhists, Sikhs
°"'r°s'(':l1SP:'t" 356:)': or Jains. Under the Special Marriage Act.' however, this part would apply to
Efciudcd (ﬁmdugpersons whose marriage is solemnised under that Act. A 'study of the sections
etc.). contained in this Part does not reveal any particularly weighty reason why the
sect'ons contained in this Part should not apply to the persons excluded at
present form their scope. In fact, the principle of these sections has been
adopted in various decisions2 relating to the persons so excluded----that IS to say,

Hindus, Muslims, Bhudhists and others.

Possible explana- 5.13. There is an historical explanation of the British concept of domicile,

tion of section and that may perhaps explain why section 4 excludes Hindus etc. The oddities

4- of the British domicile of origin can be understood only against the background
of the historical context in which this concept was developed.

This was, in the main, in the mid-Victorian age when Britain was the centre
of a world-wide Empire, the different parts of which were heterogeneous in
regard to -Civilisatin" ways 0' life and law. There was then need for a device
allowing British settlers in the various parts of the Empire to remain subject
to their own law in personal matters and in matters of succession, even when
they spent a long time away from home, there being in most cases no question
of their assimilation to the local conditions. As it has been put, the tenacity
of the domicile of origin "reﬂects the habits of the English upper classes of the
last century when vounizer sons went to the colonies to make a fortune and

retired home afterwards" as well as "a reluctance on the part of the courts'

,in mid-Victorian England to admit that a gentleman could never lose all con-
nection 'lzith the country of his birth and his ancestral estates".3'4

Caselawas to domi_ 5.14. _This is perhaps the reason why the sections relating to domicile were

cm, of Hindus em made applicable only to non--Indians, since, at that time. the need felt was con-
ﬁned to them HOW€V€r. on general principles, what has been enacted in section
4 is. in substance applicable to Hindus a1so.----a position resulting broadlv from
a decision of the Supreme Court.' There are decisionsalso of High Courts
'following this principle. For example, in a Kerala case,' the High Court decided
that the sale proceeds of immovable property in Sheﬂield (U.K.) would be
governed bv Ennlish law This noint was not. on appeal. disputed before the
Supreme Court.' The dispute in the appeal before the Supreme Court was as
regards the law which governed the succession to movable properties and monies
left by the deceased. On this point. the Supreme Court held--"If Krishnan (the
deceased) had acquired a domicile of choice in England, there can be no doubt
that English law would govern the succession to them."

'Section 21, Special Marriage Act, 1954.

'Viswanathan v. Abdul Wasid, A.I.R. 1963 S.C. 1.

"Palson, Marriage and Divorce in the conflict of Laws (1974), page 63.
'Nygh, Conflict of Laws, pages 74, 81, 82.

" Vishwanathan v. Abdul Wasid, A.I.R. 1963 S.C. 1.

°Sankaran v. Lakshmi, A.I.R. 1964 Kerala, 244.

'Sankaran v. Lakshmi, A.I.R. 1974 S.C. 1764, 1767, para 13.



31

5.15. In this position, we recommend that Part II of the Act should be Recommendationto
extended to the persons at present excluded from its scope. This will only clarify delete 5°°"°" 4.
the present position. It would not introduce any change of substance. The object
could be achieved by deleting section 4, which, at present reads--

"This Part shall not apply if the deceased was a Hindu, Muhammadan,
Buddhist, Sikh or Jain . . . . . . ..".

IV. The choice of Law: Section 5.

5.16. This takes us to section 5. The section reads as under :--

"5. (1) Succession to the immovable property in India or" a person Cl€C_C(lSCCl section 5_
shall be regulated by the law of India, wherever such person may have

had Ins domicile at the time of his death.

(2) Succession to the moveuble property of a person deceased is regulated
by the law of the country in which such person had his domicile at the
time of his death.

ILLUSTRATIONS

(i) A, having his domicile in India, dies in France, leaving movable pro-
perty in France, movable property in England, and property, both movable
and immovable, in India. The succession to the whole is regulated by the
law of India.

(ii) A, an Englishman, having his domicile in France, dies in India, and

leaves property, both movable and immovable, in India. The successLon

_to the movable property is regulated by the rules which govern, in France,

the succession to the movable property of an Englishman dying domiciled

in France, and the succession to the immovable property is regulated by

the law of India."

5.17. Sub--section (1) of section 5 is based on the principle of private Principle _undcr-
international law, that all rights over immovable property are governed by the 'W38 ]S'?°"';" 5
law of the country where the property is situated.' It would appear that in fi%n'5'a')'ys's° Sm'
England, not only succession, but also the execution, attestation and interpretation
of wills disposing of immovable property, and all questions relating thereto, are
governed by the law of the locality where the property is situated."

5.18. Section 5(1) needs no detailed discussion. The effect of section 5(2) Section 5(1), and
may be analysed. Where a person domiciled in foreign country, but living in 5(2)-

India, leaves property movable and immovable in the foreign country and also
immovable property elsewhere, the various important situations would be then
dealt with according to the rules of Private International Law.' The position is

as follows :-- c
(i) Immovable property in India would be distributed according to the
internal law of India, and the foreign domicile is not of any relevance.

(ii) Immovable property in the country of domicile (or in any other country)

1 is to be distributed according to the law of the lex situs.

(iii) Movable property in India would be distributed in accordance with the

law of domicile.

(iv) Movable property in the country of domicile would, of course, be distri-

buted in accordance with the law of that country.

(v)' Movable property in any other country (other than the country of domi-

cile or India) would also presumably be distributed according to the law
of the country of domicile.'

V. Choice as to national law.
Question whether

5.19. An important question to be considered in connection with section 5 deceased Should be

is this. Should there not be a provision permitting a person to choose the national allowed ,0 opt for
. national law.

 

'Bonmzud V. Emile Charriol, (1905) I.L.R. 32 Cal. 631, 640.

'Studd v. Cook, 8 Appeal Cases 577.
'Adapted from Levontin, Choice of Law and Conflict of laws (1976), page 66.

'Cf. Re Ross, (1930) 1 Ch. 377.



.52

law as the law of succession governing his inovables 1' In this coniiection, we
note that in the French Code on Conﬂict of Laws (proposed), the following pro-
vision appeared 2

2307--"Unless by his last testament the deceased expressly opted f0r his
national law, succession shall be governed by the law of his domicile.

However, successions Concerning immovables and fonds de commerce, shall
be governed by the law of the situs of the immovable or of the fonds, which
shall also govern their transmission.

Obligations of the heirs regarding the debts of the succession shall be
governed by the law of the domicile of the deceased or (where appropriate
under paragraph one, above), by his national law.

The obligation to contribute to the payment of the debts of the estate is

always in proportion to the value of the share of the assets going to the heii"."'

Iecommendation . 5.20. On principle, it appears to be desirable to create in section 5. an excep-
for 'creating an tion--foi' cases where the deceased, by his will, expressly opted for his national
exception In 5°C' law in relation to movable property, as in the ﬁrst and third paragraphs of draft

iggres f°feSf:t5g:' article 2307 of the French proposal quoted above?

chooses national law _, _ , _ _ _
as regards movable 5.21. 'l his change in section 5 should be carried out even if our recommen-

Dr0pert.V- dationa for the addition of liberal provisions generally in regard to the execution
of wills is not accepted.

5.22. If that recommendation is accepted, the change in section 5 proposed
in the present paragraph will be without prejudice to the change resulting from
the proposed provisions, making other tests applicable in relation to the execution
of wills

Recommendation 5.23. We are separately recommend_ing the insertion of several provisions'
t_o amend_ Sec-which seek to render applicable certain tests additional to those mentioned in
;l§'g"geS5tca" ]'i';,':="r"a1°fsection 5. In view of this recommendation, section 5 will require consequential
provisions astomwamendment. Accordingly, we recommend the addition, at the end of section 5,
ﬁgverﬁisng execution of the following new sub--section :---
W1 .

"(3) The provisions of this section shall be subject to those of Part IA.
VI. Domicile of Origin.

Section 6--Re- 5.24. This takes us to section 6. Section 6 provides that a person can

§g:1nfSI1€n<i1f€l1(:i°IT§x)l;'f have only one domicile for the purpose of the succession to his movable property.

natiorfmto Sgcfion The proposition laid down in the section seems to have _been based on an earlier

21_ English case'. As enacting a general rule, the section is unobjectionable. How-
ever, the section assumes that a person will have in mind a deﬁnite place as
his domicile. Domicile is generally linked with permanent residence. Now the
question that arises in this position is that', if a person has two or more perma-
nent residences--a rare but not inconceivable situation--and the issue of domicile
becomes material for the purpose of the law of succession, how is his domicile
to be determined ?

Recommendation 5.25._ Tliotigli section 6 does not address itself to this aspect, yet it is an
amend Secﬁonaspect which cannot be overlooked. Our recommendation in this context would
be to provide that where it is diﬂﬁcult to determine the domicile of a person by
reason of the fact that he has two or more places of permanent residences, the
place where he last permanently resided shall be the place of his domicile.
Section 19 seems to be the appropriate place' for carrying out this object, and
we recommend that an Explanation should be added to that section for the
purpose.

'Article 2307, Draft French Code on Conﬂict of Laws (1970), 18 A.J.C.L. at page 619.
"Para 5.19, supra.

"Chapter 4, supra.

'Chapter 4, supra.

'Somerville v. Somerville, 5 Ves. 750, 786.

'Section 19 to be amended.



33

VII. Domicile of child at birth.

' 7.

5.26. Section 7 reads---- Secmm
"The domicile of origin'0f every_ person of legitimate birth _is_ in. the

country in which at the time of his birth lns_ father was domiciled, 'or,

if he is a posthumous child, in the country in WhlCh his father was domiciled

at the time of his father's death.

ILLUSTRATION

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

5.27. We have a comment on the latter half of section 7, which provides 56Cti0n Zh--'3"°;
that the domicile of origin of a posthumous child is that of the father at the ch"d_"§:gl'i'$'i:w_
time of the father's death. The English law on the subject,--at least according
to the general understanding,--is that the domicile of a posthumous child follows
that of the mother. The rule has in substance, been so stated by Cheshire' and
Dieeyz.

In fact, Dicey, in an earlier editions, (1928) gave the following illustration
of the English rule on the subject :--

"D is a person posthumous whose father was domiciled at the time of his
death in England. At the time of D's birth his mother has acquired the
domicile in France. D's domicile of origin is French".

The illustration given by Dicey in his 1973 edition is'--

"H and W are married and domiciled in Scotland. H dies and W immedia-
tely acquires a domicile of choice in England. After she has done this she
gives birth to D, who is H's son. D's domicile of origin is (semble) English".

5.28. In our opinion, the English rule on the subject represents a just Demerit of present
approach. The present Indian rule does not accord with reality, and may even Section 7-
create an anomaly. The present provisions---i.e. section 7, latter half, when read
with section 9 (which provides that the domicile of origin prevails until a new
domicile has been acquired),--would lead to the position that for about eighteen
years, the child would continue to have the father's domicile, ever. though the
mother with whom he is living might have, after the father's death, migrated
to another country. To force the child to hold on to the fatl:ei"s domicile in
such circumstances is to introduce a ﬁction which goes too far. Tltere 's, thereforu,

need to substitute in section 7, latter half, the mother's dom'tcile in place of
the father's.

5.28A. Of course, if section 7, latter half, is amended as 'ecommendtzlsection 14 consi-

above, it would follow that the domicile of the '}O9"1'l1.t!l1OllS r:l='.l.~' wr:-.:ld (Int-.7 dered-
virtue of section 14) automatically follow the (.i'f  of the zi":2*T'iev7 ('l_'.l1'§l'.»<';
minority. In certain very exceptional circumstances, (5: rule niioht not be i;)€lli?--

ﬁcial to the child. say, for example, when the rnotrxi' _.':iil:erately anti malts ﬁdc
makes a change in domicile so as not to beneﬁt the child. Hoxvevcrg, this prob-

lem can be avoided by amending section 14 also', to the effect that, where

the change of domicile effected by the mother is not 'for the welfare of the
minor, the change in the domicile of a minor which may follow from a change

of domicile on the part of the mother is not to be regarded as a necessary
consequence of a change of the mother's domicile.

'Cheshire, Private International Law (1970), page 17.

'Dicey, Conﬂict of Laws (1973), page 93, Rule 9 (2), and page 94 (illustration 2).
'Dicey, Conﬂict of Laws, quoted by Henderson, Succession Act (1928), page 20.
'Dicey, Conflict of Laws (1973), page 94, Illustration 2.

'To be considered under section 14.



3'4

ReCon1mel1d;l[i()!1 57.29. In the light of the above discussion, we reconimcnvd that section 7,
to amend section latter half, as well as section 14,1 should be amended as indicated below: -
h if L cl .. . . .

ZCCila(§1t'lerl4.a m "7. The domicile of origin of every person of legitimate birth 15 In the
country in which at the time of his birth his father was domi-ciled; or, if he
is a posthiimous child, in the country in which his mother was domiciled at

the time of his bin'/i.

/lliisiraiion ti) At the time of the birth of A, his father was domiciled in
I-England, 'A's domicile of origin is in England, wliatever may be the country
ill whi;li he was born.

lllzisziaiioii (ii) [1 and IV are married and 'domiciled in England. H (lies and
W inmzezliazoly acquires a domicile of choice in Indiag. After she had done
this, she gives birth to S, who is H's son. S's domicile of birth is in India".

The following words should be added at the end of the Exception to section
14 :

"or if the parent has changed his domicile mala fide'."

5.30. This takes us to section 8, which provides that the domicile of
Section 8 idomicnc origin of an illegitimate child is in the country in which at the time of his birth,
of origin of j]',cg'1-hlS mother was domiciled.
mate child. H ,

lhe section needs no change.

'.111. At-quisftioii of domicile.

S . - _ 5.31. Section 9 provides that the domicile of origin prevails until a new
action 9 -- Continu , , . . . . . . .
ance of domgcns domicile has been acquired. This is a rule of convenience based on the imphcit
of origin. postulate that a person must at all' times during his life have a domicile.

- _ -_ 5.32. Connected with section 9 is section 10, which provides that a man
Section 10 Acqui , _, _ , , , _ . _
smon of new d()mj- acquires a new domicile by taking up his ﬁxed habitation in a Country which is
cile. not that of his domicile of origin. The emphasis is on the words "ﬁxed habita-

tion". The general principle in this regard was best put by Lord Westbury, who
observed that the domicile of choice must be a "residence freely chosen and
not prescribed or dictated by any external necessity, such as the duties of office,
the demands of creditors or the relief from illness"-"'.

section 1o._Exp,-3,- 5.33. Faithful to this general principle, the Explanation to section 10 pro-
nation. vides that a man is not to be deemed to have taken up his ﬁxed habitation in
Jndia, merely by reason of his residing "there" (i.e. in India) in "the Civil,

Military, Naval or Air~borne Service of Government, or in the exercise of any

profession or calling".

5.34. The main paragraph of the section thus deals with a wide area of
acquisition of domicile by choice. A narrow area of the subject is dealt' with
by the Explanation. The acquisition of domicile of choice by service personnel
has, in the past, presented many vaxatious problems in the ﬁeld of law in
England. At the beginning of the nineteenth century, the view has obtained that
the servants of the East India Company could acquire a domicile of choice in
India through residence there. The doctrine was deﬁned by Leach V.C. in the
following terms :---°"'

Analysis.

"A residence in India for the purpose of following profession there in the
service of the East India Company creates a new domicile".

Developmem in 5.35. But this doctrine, which came to be known as that of "Anglo-India"
England as to scr- domicile, was found to be anomalous, and English courts began to be unwilling
VXCCKTIEII.

1To be carried out under section 14 also.
3Conipare section 10.

"Compare Dicey, Conllict of Laws (1973), page 94, Illustration 2[para 5.27 supra].
'T i It; .;:irried out under section l4 also. See para. 5.52, infra.

'i'.'s'vii' '». Uzl/iy, (I869) LR. 1 Scottish Appeals 441, 458 (H.L.).

"lllimraw V. Douglas, (1820) 3 Mad. 379,

7Sec Note, "Domicile of Serviceman" (1950) 228 Law Times 4.



A...

.3.)

to recognise the capacity of a British soldier to acquire a domicile of choice.
Thus, in 1884, Cotton L.J. held,' "a soldier or sailor in the service of a sovereign
retains the domicile which he had on entering the service, wherever he may be
stationed".

The doctrine of "Anglo--lndian domicile" was finally disapproved in 1930
in England."

However, in 1949", it was first recognised in England that a 'Serviceman
could acquire a domicile of choice in the country where he was stationed, The
matter was elaborated in 1957, in a case' which 'related to proof of acquisition'
of domicile of choice in the country where a soldier 1S stationed.

5.36. The position was further clariﬁed in a later case} This was an action Later case.
of divorce on the ground of desertion at the instance of an American serviceman
whose domicile of origin was in the United States. His marriage took place
in England in 1950, and the parties lived in Durham until 1951 when the plain-
tiff was -posted abroad. After service in Korea, the petitioner was posted to
France and, in 1957. he visited England with the intention of making his
permanent home in England. He obtained a room in Miteham (England) and
kept his belongings there. lt was held that the petitioner had in 1957 formed
an intention to remain in England and that by his residing in England while on
leave, the qualiﬁcation of (present) residence was- satisﬁed, He had, therefore,
acquired an English domicile by choice, Since a serviceman could normally
acquire a domicile of choice in the country where he was serving, a fortiori, he
Can acquire such a domicile at the place where he was on leave.

5.37. We first turn to certain drafting improvements required in the main Section_10--Verbal

paragraph of section 10. ' Change in the mall'
paragraph.

The expression used in section 10 is ''man''. This is a departure from the
expression "person" used in most of the other sections in this Chapter. We see
no reason why the wording should differ. Of course, under the General Clauses
Act', words in the masculine gender include females, and this rule would apply
to section 10 also.. However, it is better to introduce uniformity in the matter
of drafting. Accordingly, we recommend that section 10 should be revised by
substituting "person" for "man", with consequential changes'.

In view of the above reasoning, the main paragraph of section 10 should
be revised as under :--

"A person 'acquires a new domicile by taking up his ﬁxed habitation in a
country which is not that of his domicile of origin."

5.38_. To revert to the Explanation to section 10, we may state that the Explanation to sec-
Explanation, though seemingly inconsistent with some of the modern trends, is "On 1°
not really so, if due regard be had to the word "merely."

However, it may be added, by way of clarification, that if a person, having
gone to another COClIlntr'y.lfOr. thci] purpose of service etc. intends to remain there,
6 may acquire a omici e in t at country.

5~3_9- A_1S0, We ﬁnd the Explanation to section 10 incomplete in two res-- Explanation in-
pects. First, it leaves out the case of private service and, secondly, it does not complete
cover service elsewhere than In _India. The reason for this would appear to be
mainly historical. The Explanation was taken word by word from an English

'Ex parte : Ciznninghani, (1884) 13 Q.B.D. 418, (See after paragraph 5.39, infra).
'Peal V. Peal, (1930) 143 Law Times Reports 768. '
"Douglas v. Douglas, (1949) Probate 363.

'Cruickshanks V. Cruickshzmks, (1957) 1 All E.R_ 889,

"Stone v. Stone. (1959) 1 All E.R. 194.

°Section 13, General Clauses Act, 1897.

7As to the Explanation to section 10, see 1'/zfira. (Paragraph 5.39).
"Compare section 10, illustration (ii).



3 6

case' (except for the later additions regarding air force etc.). It was laid down
in the English case that a man is not to be considered as having taken up hlS
ﬁxed habitation in British India, "merely by reason of his residing there in His
Majesty's Civil or Military Service, or in the exercise of any profession or calling."
At the present day, there is no need so to conﬁne the Expltlnation. Th6 EXP13'
nation to section 10 should therefore be suitably widened (i) to cover private
service, and (ii) to embrace all countries (and not merely India).

Provision in Que- 5.40. In this connection, we may refer'-' to the very simple provision in the
5"? Quebec Civil Code on the subject which declares that3--

"A person appointed to ﬁll a temporary or revocable oﬂice, retains his former
domicile, unless he manifests a contrary intention."

Although the word "temporary" is used in the Quebec provision cited
above. it does not' mean that a person appointed for life acquires a domicile
of choice where he is appointed.

Recommendation 5.41. In view or what is stated above, we recommend that the Explanation to

to revise the Ex- section 10 should be revised as follows :--
nlanation to section
10.

"Explanation.----A person is not deemed to have taken up his ﬁxed habita-
tion in India or in any other country merely by reason of his residing there
in service of any Goiuzzi-itnzettt. az.'r/tority or person or in the exercise of any
profession or calling, but if a person, /raving gone to another country for the
/mrpose of .S'é')'\'iC€' or the e.\':3;'c';L~:e of any profession or Calling intends' to
remain I/!€l'€, lie may acquire a domicile in that countrys.

Section 10. IlIustra- 5.42. Certain verbal changes are also needed in the illustrations to section 10:
'('i;';'if;sR°¢°mm°1" In lllUSll'2lli0ll (i), the expression "as a barrister" should be replaced by the
' words "as an Advocate", for obvious reasons.

Illustrations (vi) and (vii) to the section relate to the case of a person
whose domicile is in the French Settlement of Chandernagore. These two illustra-
tions are now obsolete, and should be omitted.

We. therefore, recommend that illustration (i) to section 10, should be
amended as indicated above, and illustrations (vi) and (vii) should be deleted.

IX. Aquisition oi Domicile

section "_ _5_.43. This takes us to section 11. which provides a special mode of acquiring
domicle in India. This provision does not seem to do great violence to the
already accepted rules as to the acquisition of a domicile of choice. It does not,
however, make clear that an intention of "permanent" residence does not have
to be looked for.

A¢ql_li§I'ti°n 01' "W 5.44, It may be stated, as a matter of interest, that according to the New
gg;1l1;':]11f--N°W Zealand Domicile Act,' "a person acquires a new domicile in a country at a parti-
' cular time if, immediately before that time', (a) he is not dom'ciled in the country;
and (b) be is capable of having an independent domicile; and (c) he is in that
country; and (d) he intends to live indeﬁnitely in that country." A "country"
is deﬁned by section 2 of the Act as meaning (unless the context otherwise
requires) "a territory of a type in which, immediately before the commencement
of this Act, a person could have been domiciled."

1Re Marricg/1t, 30 Ch. Div. 165 [See also paragraph 5.35 supra].

'Castel, Private International Law (1960), page 60 and footnote 41.

"Article 82, Quebec Civil Code.

'Castel, Private International Law (1960), page 60.

'Compare section 10, illustration (ii).

'Section 9, New Zealand Domicile Act.

7See "Domicile" (20 September ,1977) New Zealand Law Journal 375-379.



37

This is a sound rule', and has been madebecause the situations where a
person can be found to hair-e irrevocably and positively stated tnat he means to hie
out all his days in a particular country must indeed be few.

5.45. Reverting to section 11 of our Act, a special mode of acquiring Section 11 Declara-

domicile in India is provided by the section, under which a person mfly aCqu1r6§r'§gedb°0l';§§e' pm'
such domicile by making a declaration and depositing it in the prescribed _QIT_1Ce.
Apparently, the provisions of this section are designed only to confer a limited
domicile for the purpose of regulating succession to movable property, and not
for any other purpose. This WEW was ta_l_<en by a I1'lﬂ]OI'lIy of the Chief Court
of Sindz, though the minority view (Tyabji J.) was different.

5.46. Having regard to the setting in which the section is placed and the Recommendation
limited scope of the Act, it is, in our opinion, advisable to give effect to the tlol fmendt 5€d€I;_l0I'
majority view of the Sind Chief Courta referred to above', by adding suitable its 5:01:65. ° ° "°
words in section 11. We recommend that the section should be so amended.. An
Explanation should be added as under, to section 11 :--

"E.rpIai'iatiori.--The provisions of this section confer a limited domicile only
for the purpose of regulating succession to movable property, and not for
any other purpose.

5.47. Another point arises under section 11 in relation to minors. Under Section, 11 Recom-
the section, "any person" may acquire a domicile in India by making and m°"da"°"'°am°"d
depositing in some oﬂice in India appointed by the State Government a speciﬁed to mmom
declaration. Though the words used are 'any person', it is presumed that this
section does not contemplate a minor or other person under legal disability in
relation to the capacity to contract. To bring out this aspect, it appears to be
desirable to limit the section expressly to a person competent to contract by the
law of the country in which he was domiciled immediately before such declara-
tion.

Accordingly, we recommend that section 11 should be amended by adding,
after the words "any person", the words "competent to contract by the law
of the country in which he was immediately before such declaration domiciled."

5.48. This takes us to section 12, which i'eads:---- . section];

"A person who is appointed by the Government of one country to be its
ambassador, counsel or other representative in another country does not
acquire a domicile in the latter country by reason only of residing there 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."

The secti-on deals really with a situation analoguous' to that dealt with in
section 10, Explanation. It needs no change.

549. Section 13 provides that a new domicile continues until the former section 13 com-
domicile has been resumed or another has been acquired, nuance of new do-

The circumstances in which a domicile is "resumed" are not dealt with in mme
the section. But determination of such a question, if it arises, will depend on
he facts to which the principles of section 10--12 would apply.

The section needs no change.
X. Domicile of dependence of minors

5.50. The provision so far discussed are mainly concerned with domicile Domicile of dawn-
independently acquired by a person. In certain cases, the domicile of a person dence.

"Domicile" (20 September, 1977) New Zealand Law Journal 375-379.
"Weston v. Weston, A.I.R. 1945 Sind 152 (Majority view).

"Weston V. Weston, A.I.R. 1945 Sind 152.

'Para 5.42. supra.

'Para 5.38, supra.

section 11 in relation '



38

follows that of another person. One such case is that of a minor. Section 14,
in the main paragraph, provides as follows as regards minors:

"14. The domicile of a minor follows the domicile of the parent from whom
he derived his domicile of origin".

According to the Exception to the section, the domicile of a minor does
not change with that of his parent, if the minor is married or holds any office or
employment in the service of Government, or has set up, with the consent of
the parent, in any distinct business.

- 5.51. There are certain points arising out of sections 7 and 14, in regard
Eiiiigrigarif parcmsto children whose parents are living apart at the time of the birth of the child,
whether or not the parents have been divorced in law. Under secion 7, the
domicile of origin of every person of legitimate birth is the same as the domicile
of the father at the time of bl1'th----l€3.Vl11g aside the very special situation of
a posthumous child, which has been dealt with separately.' Under section 14,
the domicile of origin is ﬁxed by the operation of law. The section gives effect
to the primary rule that the domicile of a legitimate child automatically changes
with any change that occurs in the domicile of the father. (There are other
situations to which also 14 applies, but they may be kept aside for the present).
Thus, in both the cases---the domicile of origin and the domicile oi" dependcnce--
the domicile of the child is compulsorily linked with that of the father.

Defect of the rule 5.52. This doctrine of the unity _of domicile with the father of the child
of unity when may not, however, yield a proper rule in certain situations where the parents are

applied to Dafliesliving apart at the time of the birth of the child.
living apart. _ _
(a) The parties to the marriage may be separated with or without a decree
of judicial separation, 01'

(b) The parties to the marriage may be living apart with or without a decree
of divorce. In all these cases, if the child has his home with he mother and
no home with the father, the present provisions in sections 7 and 14 would not
reﬂect the reality of the situation. To necessarily link the domicile of the child
with that of the father is likely to lead to hardship, anomaly and injustice in
such cases.

English Act of 5.53; liiilingland, the rule has to some extent been altered by the Domicile
1973_ and Matrimonial_Proceedings Act, 1973', stated in brief, the position in England
under the Act of 1973 is as follows :--

(i) Where both the parents are alive but are living apart, the domicile of ,
the child is that of the mother, if the child has his home with her
and no home with his father, or if the child has acquired the domicile
of his mother in this way and has not, since then had a home with
his father. (Thus, a child having a home with his' mother keeps the
mother's domicile even though he ceases to live with her even if he
had not a home with his father.)3

(ii) A child who has his home with the mother, continues to retain it after
the death of the mother, unless and until he has a home with his father_
(iii) These rules apply to legitimate as well as to adopted children

5.54. The statutory provision in England as to domicile of a child not

fs"3t'(ifhchil1';'r';";':5'°" living with his father is as follows':-

"l)epemZcnt domicile of child not livi/zg with his father.

4( 1). Sub-section (2) of this section shall have effect with res ect t th
dependent domicile of a child as at any time after the coming inIt)o for(c)e of
this section when his father and mother are alive but living apart "

'Para 5 . 26, supra.

gsection 4(2) ("h 4 (2) (5) 4 (3) and 4 (4) Domicile and Matrimonial Proceedin
,- ,0 ' - ~. ,_ _ _ gs Act, 1973
:1;<:1210ci)tv\e:jthcp1.ia1rj.1r:::]aphs 1(2), 1 (4) and 3 of the First Schedule to the Children Act, 1975 in regard to

3Cheshire and North, Private International Law (1979), page 180.
'Section -1, Domicile and Matrimonial Proceedings Act, 1973.



'AJ

U
1

n

(2) The child's domiciletas at that time shall be that of his mother if--
(a) he then has his horn-2 with her and has no home with his father;
U1' .
(b) he has at any time had her domicile by virtue of paragraph (21)
above and has not since had a hOme with his father.

(3) As at any time after the coming into force of this section, the domicile
or a child whose mother is dead shall be that which she last had before
she died if at her death she had her domicile by virtue of sub-section (2)
above and he has not since had a home with his father.

(4) Nothing in this section prejudices any existing rule of law as to the
cases in which a child's domicile is regarded as being, by dependence, that
of his mother."

5.55. The view has been expressed' that these provisions apply only for Vl°W °f Ch¢5hi'°-

the determination of the dependent domicile of a child, and do not.appear to
affect the determination of domicile of his origin. Thus, a child born of parents
who are married but living apart at the time of his birth would acquire the
fathers domcile as a domicile of origin, but immediately thereafteracquire a
domicile of dependence with his mother where his home is'-'.

5.56. One question that might arise----and a question that is of practical $;',il?,3°§a,:,:;S_di'

importance because of the increasing rate of divorce in all countries, including

India--is this : what happens to a child whose parents are divorce-d at the time

of birth? ln England, the expression 'living apart' would cover the situation".

But in India there is no speciﬁc provisions on the point, with the result that

sections 7 and 14 would ap-ply to the case. Now, under section 7, the child would .
acquire the domicile of the father, even though, in fact, the child is totally

separated from the father. With reference to the position in England', it has . .
been suggested that a child born to parents who have been divorced takes his 1
mo.hcr's domicile at his birth. if the capacity of a father to change the domicile

of his infant child is a manifestation of parental authority and gesponsibilityﬁ

then there is no reason why that doctrine should apply where the father has .
never accepted his responsibility for the child.

5.57. It appears to us that in regard to all these cases, there is need for $23?' f°'a:'i"°°l,':_'

a change in the present statutory provisions in sections 7 and 14. in framing ¢omme,',dauon_
the revised provision, assistance can, to a large extent, be derived from the
English Acts of 1973.

5.57A. We note that in an article in the Statesman', a writer (commenting i';',';1"°'r'eg1a4rdiS[:'g33d°°s:

on the Law Commission's Working Paper on the subject) has stated that the mi¢i1eof--¢hi1d,¢on.
commiss?on, while recommending changes regarding the domicile of married Sidered-

women (section 15) and domicile of a posthumus child (sections 7--~--9), has not re-

commended that "the domic'le of origin of either parent should be that of the

child and that if the child is living with the mother, the lattcr's country of

origin should be the chiid's." The criticism quoted above from the article

seems to imply that in the writer's view, the Law Commission should have 50

recommended. Analysing the matter, one ﬁnds that two ideas are involved in

the above criticism---- 7 V

(i) The child's domicile should follow that of either parent.

(ii) The child's domicile, when the child is living with the mother, should
follow that of the mother.

'Cheshi"e and North. Private International Law (1979), page 180.
"Cheshire and North, Private International Law (1979), page 180.
3See. supra.

'Dicey and Mo:'ric., Conflict of Laws (1973), page 93.

"Compare ReB(S) (an infant) (1967) 3 All. ER. 629.

"Section 4, Domici'e and M itrimonial Pro:c::.iings Act, 1973 (C. 45).

"Shahnaz Anklesaria, "Laws '~.VlllCl1 discriminate against women" (29 June, 1984) Statesman,
page 6



40

It appears that the ﬁrst of these two points is meant for the_ generality of
cases, while the second is meant for the special case where the child is actually

living with the mother.

Rule providing for 5.57B. As to the first situation, we do not think that a rule of law which

'"'° a."°"'a"V°5 "°'is intended to determine, in the ﬁrst instance, a particular question so as to avoid

p'a°"°abl°' controversies on the subject can be appropriately framed so as to lead to, M0
alternatives becoming applicable. If both the alteriiaiivcs yield the same conclu-
sion in a particular case. the suggested rule is not needed. If both the alternatives
yield different results the rule may create confusion. We do not therefore ﬁnd
the suggestion acceptable. The object of rules ﬁxing domicile is to maintain a
measure of certainty. That object will be defeated if two alternatives become
applicable which would be the case if the domicile of origin of either parent is
to become the child's domicile as is the suggestion

whether present "5.57C. it may be argued that the present rule giving predominance. to the

rule violates equa-father is violative of the equality of sexes. But that would not be so, in reality.

my °f 'h° 5°"°5- So long as members of the family are not separated, the child would, in fact, be
living with the parents and the present rule would not violate any right of the
mother.

chad living with 5.57D. If the members of the family are separated, what should be the

St'-Parated m0ther- position? This brings us to the second point arising out of the suggestion now
under consideration, name1y,_that if the child is living with the mother, then
the child's domicile should follow that of the mother. We do not lind anything
wrong in such an approach. Where a matrimonial court has awarded the custody
of the child to the mother, the case for making such a rule is fairly strong.

In fact, the amendment which we are recommending' in section 14 will
take care of this and similar situations.

Amendment of '5.58. In the light of the above discussion, we recommend the insertion in
section 14 1-ecom.S6Ctl0n 14 of the following new sub-sections'~' :--
mended.
New S.'.tl)v~S('('ll0llS to be added in section 14---
(2) The d0micile of a minor at any time after the commencement Of the
Indian Succession [Amendment Act . . . . . when his father and m0ther
are alive but living apart shall be governed by sub--secti0n (3)],

(3) The min0r's domicile as at that time shall be that of his mother if----
( a) he then has his home with her and has no home with his father; or

(b) he has at any time had her domicile by virtue of clause (a) above and
has not since had a home with his father.

(4) .As at any time after the coming into 'force of the Inditih Succession
(.tmemlinent) Act . . . . . . .. the domicile of a minor whose mother is
dead shall be that which she last had before she dies, if at her death
the ininor had her domicile by virtue of sub-section (3) and he has
not since hurl a home with his father.

(5) Nothing is sub-section (2) to (4) shall prejudice any existing rule of
~ law as to the cases in which a min0r's domicile is regarding as being,
/iy dependence, that of his mother."

Recommendation h 5.53. We may ZllS§ mention that while discussing an earlier section', we
to amend section ave Ina e a recommen ation to amend the Exception to section 14 1--
14.

"or if the parent has mala ﬁde changed his domicile".
XI. Minor Without Parent

Domicile of minor_ 5.60. We now propose to consider a matter on which a speciﬁc provision
without parent. is not, at present, contained in the Act, namely, domicile of a minor who has

'Section 14, as proposed to be amended. See paragraph 5.58.
'Present section 14 to be renumbered as section 14(1).
'See discussion as to section 7, para 5.27. supra.



41

no parent, but has only a euardian. One writer', dealing with the subject, has
expressed his views thus :--

"It is submitted that no cogent reasons have been advanced why, as in the

case of a parent, a change with the domicile of a guardian should not

also bring about a change in the wards domicile, unless by virtue of the

change of domicile the guardian ceased to be guardian and the relation

of guardian and child thereby disappeared. The discrimination between

parent and guardian for the purposes of the resulting change of the minors

domicile overloolts the nature of both domicile anti guardianship. If domicile

means the legal centre of a persons contacts and activities, could there

be any better domicile in the case of a minor without parents than that of

his or her guardian? If guardianship is a substitute for the relation of

parent child, which substitute cannot be dispensed with in the interests of

the child, why should the former not have the same range as the latter

in respect of strictly legal issues such as those involved by the concept of

domicile 7"

5.61. We see considerable force in this reasoning and recommend that a§,°i°I:'s';'r':',':;';jvaSt:,'3on
suitable provision on the lines suggested by the writer quoted aboveg, should be as to minor who
inserted in the Act. has no parent.

The new section could be in the '.AOl'-_L'»'\'~.'i1'._"v terms :

"t/1-,.'.. A r,'zrz;ige r'..r: I/It' :!«.>;;z,'r'.'Ie of n ;:.~ai'dfazi other than a parent brings
rt/tr,-zrt t~' rltutrge in the :.'rri71z'.' tie rs-_:' t/re wcrrl, 11111655, by virtue of the change
of r1omt'ct'lc, I/te guard/'rm ceases to be guartﬂan and the relationship. of
guardian and ward thereby ceases."

XII. Marriage

5.62. This takes us to section 15. Section 15 provides that by marriage a Section 15.
woman acquires the domicile of her husband. if she had not the same domicile
before. How far the section should be retained in its present form depends
on the view to be taken on section 16, therefore, we proceed to consider".

5.63. Section 16, in its main paragraph, provides that the wife's domicile Section 16 wife's
during her marriage follows the domicile of her husband. The Excep!ion to the d°m'°'1°-
section is in these terms :

ExC(.'pti0t1 : The wife's domicile no longer follows that of her husband if
they are separated by the sentence of a competent court or if the husband
is undergoing a sentence of transportation."

5.64. Let us first dispose of a, possible query arising out of the last ten Query 85 t0 _S°¢-
words of the Exception. The last ten words raise the question if a sentence of "°" 15?E"°°P"°"'
transportation would, in itself, change the (husband's) domicile. Now this may
not be always the case, at least if the country of transportation is the same
political unit----or "legal district''-- as the country from which the husband is
transported. However, there is a sense in which this part of the Exception
may be useful. If, the husband, after undergoing transportation in X country,
settles down in country Y, the wife should not necessarily be burdened with the
domicile of country Y. This would be a result ﬂowing from the Exception. The
assumption seems to be that a sentence of transportation would snap the emotio-
nal ties between the parties and that the possibility of the wife resuming her
cohabitation with the husband on the latter's return from transportation would be
very faint.

5.65. We may now deal with certain other points requiring consideration Unity of Spous¢s_
in connection with the section. The first point arises from the main paragraph,
which is based on the doctrine of unity of the spouses and makes the wife's
domicile dependent on that of the husband. A strict application of the doctrine
of unity of the spouses as to domicile may at times, result in injustice to the wife.

'See Sprio, 'Domicile of Minors without parents' Vol. 5 International & Comparative Law
Quarterly, 196.

'Para 5.60, supra.
"See discussion as to section 16, infra.



Common law rule.

Criticism of present '

law.

Criticism of rule of _ _
unity of spouses condemned. Simon P. called it a 'complet

.".
"i'.L.

5.66. The common law rule is that a married woman's domicile is the same
as that of her Iillsbilnd and that, if his domicile changes, her domicile changes
with it, whether she likes it or not.' Lord Deiining M. R. has described the rule
as "the last barbarous relic of a wife's servitude." '

5.67. In England, the view that domicile ought to be the sole ground for
jurisdiction in divorce seems to have been first advanced by Sir Cresswell in l963_",
but has been considerably modiﬁed by statute The Law Commission of India
in its Report on the Recognition of Foreign divorces has recommended a modi-
ﬁcation of this rule'. However, we are not, at present, concerned with domicile
in the context of jurisdiction in divorce. Our present concern is with the subject
of domicile as relevant to the law of succession.

5.68. The doctrine that the domicile of the wife is that of the llL3'~'.b£lI1d
is founded on the duty of the wife to live with the husbands. This was the rule
of the eoimnon law. To the extent that a married woman is under a disability
in the matter of domicile, it is artiﬁcial.

Lord Denning's criticism of this rule as "the last barbarous relic of a wife's
servitude" has, by now, become famous. In fact, the law on the subject has
been substantially altered in England" and in certain other western countries.'

The current English statutoiy provision (which came into force on the 1st
January, 1974) reads---

"Ab0{i!1'0;1 of wife: dependeiir domicile

l. (1) Subject to sub-section (2) below, the domicile of a married woman
as at any time after the coming into force of this section" shall, instead
of being the same as her husband's by virtue only of marriage, be ascertained
by reference to the 'same factors as in the case of any other individual
capable of having an independent domicile.

(.2) Where immediately before this section came into force a woman was
married and then had her husband's domicile by dependence, she is to be
treated as retaining that domicile (as a domicile of choice, if it is not also
her domicile of origin) unless and until it is changed by acquisition or
revival of another domicile either on or after the coming into force of this
section. /

(3) This section extends to England and Wales, Scotland and Northern
ixeland."

'l his section abolishes the rule of unity of the spouses for the purposes of

iomicile and provides for a married woman's domicile to be ascertained indepen-
flently of her husband. '

However, a woman already married on January 1, 1974 will retain her-
. . . . , , _ 9
existing domicile (but as one of Origin or choice, not of dependence) unless
and until her actions and intentions are such as to change it,

5.69. The rule of unity of spouses" in this .context has been universally

e_ly outmoded legal concept". In 1952,
in England, in its ﬁrst report, recom-
a married woman separated from her

'See, e.g. Lord Advocare v. Ja/frey, (1921) 1 AC. 146
Cook, (1926) A.C. 444 (P.C.) De Renevile V. De Rcnevie (1

'Gray v. Formnsu, (1963), Probate 259, 267 (C.A.).

(19513)a5isiteI:\_II_.. (1863) 9 T.L.R. 148, 149. See 'Jurisdiction of the English Divorce Court'

'Law Commission of India, 65th Report. Re 't' f F ' '
15.5 and page 138, Appendix I. clause 13. (Threecglﬁelrlrigtrivcé dra?t¥tesl)In Divorces' pages 95-99' para

"Gray v. Formosa, (1963) Probate 259, 267.

'Section I, Domicile and Matrimonial Proceedings Act, I973 (C. 45).
7E.g. (a) New Zealand see para 5.62, silpra.

( b) U.S.A.

slstdanuary. 1974.

"Para 5.57, s"pra.

"Adams v. Adams, (1971) Probate 188, 216.

the Private International Law Committee
mended a very limited change, viz. that

(H.L.) : Altorney
948) 1'. I00 (C.A.).

 

Ge"9'"1 for Alberta v.



43

husband by order of a competent court should be treated as a single woman.
In 1956, the Morton Commission (Royal Commission on Marriageand Divorce)
made a slightly different proposal, namely, that for the purposes of divorce juris-
diction a married women should be entitlec_l_ to claim a separate domicile'. The
recommendation of the English Law Commission was to similar effect.

5.70. But the English Act of 1973 goes further and allows a married woman
to acquire a separate domicile as any independent person can. The Act 15 thus
in accordance with the spirit of sex equality, embodied in article 16(1) of the
'Universal Declaration of Human Rights', which reads :--

Article 16. (l)Men and women of full age, without any limitation due to
race, nationality or religion, have the right to marry and to found a
family. They are entitled to equal rights as to marriage, during marriage
and its dissolution.

(2) Marriage shall be entered into only with the free and full consent of
the intending spouses.

(3) The family is the natural and fundamental group unit of society and
is entitled to protection by society and the State."

5.71. It has been realised that by virtue of the common law rule, it may Anomaly or 014
happen that a woman becomes "domiciled" in a country which she has never rule.
seen, and to the courts of which she must resort in matters affecting her status
as a married woman.

5.72. In New Zealand, section 5(1) of the (New Zealand) Domicile Act, Law in New
1976, provides as fol1ows':- Z¢a1=md-

"5 (1) Every married person is capable of having an independent domicile;
and the rule of law whereby upon marriage a woman acquires her husband's
domicile and is thereafter during the subsistence of the marriage incapable
of having any other domicile is hereby abolished.

(2) This section applies to the parties to every marriage, wherever and
pursuant to whatever law solemnised, and wherever the domicile of the
parties at the time of the marriage."

5.73. In the U.S.A. the common law did not at first, recognise the separate U.5_A_
domicile of the married woman. "Although the wife may be residing in another
place, the domicile of the husbasd is her domicile' . . . . . . . . . .", Today, how-
ever, in the United States' the wife may acquire a separate domicile.

5.74. Having regard to current social notions, the need for reform of the Recommendation
law relating to domicile of the wife in the Indian Succession Act cannot be *1'; "Bend 5°°""h"
denied. After careful consideration, we have come to the conclusion that the law 'mam pamgmp '
on the subject should be reformed and that for that purpose in place of the
main paragraph of section 16, the following sub--sections should be substituted.

")6. (1) For the purposes of this Act, and subject to the ]7"0V[Sl0flS of, sub-
section ( 2). any rule of law whereby a woman on her marriage acquires her
husband's dotnicile shall not be taken into account after the commencement
of the Indian Succession (Amendment) Act . - . . . . . . . . . . . . . . ..

(2) Where, immediately before the commencement of the Indian Succession
(Amendment) Act . . . . .  a woman has married and then had her
husband's domicile by dependence, she shall be treated as retaining that
domicile (as a domicile of choice, if it is not also her domicile of origin)
unless and until it is changed by acquisition or revival of another domicile
either on or after the commencement of the said Act"'

'Royal Commission on Marriage and Divorce, Report (1 956) Cmnd. 9768, Para 825 and Appen-
dex IV, para 6.

'Article 16, Universal Declaration of Human Rights.

'Section 5(1) (New Zealand) Domicile Act, 1976 quoted by P.R.H. Webb, "The Domicile Act,
1976". (20 September 1977) N.Z.L.J. 374, 375.

'Anderson V. Watt. (I891) 139 U.S. 694, 706.

'Weintraub, Commentary on the Conﬂict of Law ([971) page 13, referred to in Peter Hay.
Introduction of United States Law (1976), page ll9, footnote 29!.

'Compare Law Commission of India, 65th Report (Recognition of Foreign Divorces), Chapter
15 and Appendix '.

85-L/B(D)l44M0fLJ&CA---4



44

A comment com- 5.74A. We may note that a comment' forwarded by the Catholic Bishops

dered. Conference of India agrees that there could be circumstances where it is obviously
desirable that the wife's domicile should be determined by rules other than the
(present) rigid rule that her domicile follows that of her husband's.

Recommendation 5.75. The amendment recommended' above would render the Exception to
as to the Exception section 16 unnecessary. But if the section is not amended as recommended
'° 5e°"°" 16' above, it will be necessary to deal with one verbal point which arises in connec-
tion with the Exception. The Exception contains words referring to the "sentence
of a competent court", which are not appropriate. This part of the Exception
should, having regard to current usage, really refer to a decree of judicial separa-
tion. Further, there is a reference in the Exception to "transporation" which,
is now inappropriate. India has abolished transportation as a punishment, A
few foreign countries still have the punishment of "exile". To cover these rare
cases, this part of the Exception should be suitably re-worded, _We, therefore,
recommend that (if the main paragraph of section 16 is to be retained in the pre-
sent form), the Exception should be revised, somewhat on the following lines :---

"Exception--The wife's domicile no longer follows that of her husband if
they are separated by a decree of judicial separation or if the husband is
undergoing a sentence analogous to transportation".

XIII. Unmarried women and Widows

Se<_=ti0n,15A(_N_6Wl 5.76. It is necessary at this stage to discuss one question concerning the

W'd°"' 5 d°m'°"°' domicile of unmarried women. The sections in the Act deal with marrieri women.
The position of widows, as regards domicile, is not dealt with in any speciﬁc
provision of the Act. In England, it is well--settlcd that a widow retains her late
"husband's domicile (after his death), until she changes it.3=4

A similar rule should be introduced into our Act, the soundness and practi-
cal utility of such a rule being obvious. The situation.is outside sections 9 and
16, though falling partly within section 13. A new section on the subject,, say,
as section 16A, could be inserted, if the present scheme of sections 15-16 is to
be retained.

Di"°'-'°°d "'°'"""i 5.77. A similar rule could be made applicable in relation to divorcee also,
since the same reason applies, in substance, to divorce.

Recommendation - ~ -
,0 inset, Swim" 5.78. Accordingly, we recommend that (if the present scheme of sections

15,,,_ 15-16 is retained) section 16A should be inserted in these terms :--

16A (1 ) A widow retains, after the death of her husband, her late izu.rband's
last domicile, until she changes it in accordance with the provisions of this
Act.

(2) A divorced woman retains, after the divorce, her former husband's
last viomicile until she changes it in accordance with the provisions of this
Act." .

XIV. Continuance of domicile of minor

Section 17. 5.79. Section 17 provides that "save as hereinbefore otherwise provided
in this part." a person cannot, during minority, acquire a new domicile. The
other provisions which the section has in mind are sections 14 to 16. Th sec-
tion needs no change.

XV. Insane persons

Section 18 Analysis 5.80. Section 18 provides as follows :-

"An insane person cannot acquire a new domicile in any other way than
by his domicile following the domicile of another person."

r'Catholic Bishop's Conference of India letter dated 3rd October, 1984.
'Para 5 . 74, sppra.

"Re Wallace, (1950) 1 All ER. 199 and case law discussed in Re Scfmllard's Estate, (1956)
3 All ER. 898, 902 to 904.

'See also note by PB. Carter in (1957) B.Y.I.L. 329, 332.

s



45

The words "by his domicile following the domicile of another person" in
the section could be thus illustrated-----

(a) If the insane person is a minor', his domicile follows that of his parent
from whom he derived his domicile of origin.

( b) If the insane person is a married woman, her domicile follows that of
her. husband, under the present law".

(c) If the insane person is a major unmarried male, his domicile cannot
be changed by his own act; His domicile remains what it was at the
commencement of his insanity'.

. A lunatic may not be able to acquire a domicile of choice, because of his
inability to form the necessary_ani.mus.

5.81. In England, it seems', the domicile of the insance person cannot be Domicile unchange-
changed even by the act of the person having care or custody of the person. ?lb1¢.bY 3°'°fP¢fS°n
Is India, section 18 does not deal speciﬁcally with this situation; apparently, the "mg cuswdy'
English rule on the subject would be followed.

5.82. However, this position does not appear to be satisfactory and is often Need for change in

likely to lead to anomalies in practice. In our view, the better course would be prescnt rule-

to provide that the domicile of an insane person is the same as that of the

person in whose care and protection he is for the time being, Of course, the

provision to beso inserted_will be subject to the other sectionsof the Act, eg.

the special provisions for minors. But barring such special cases, it is the domicile

of the person in whose care and protection the insane person is for the time

being, that should govern the domicile of the insane person.

5.83. We, therefore, recommend that section 18 should be revised as Recommendation
follows :-- go revise section 18.

"18. The domicile of an insane person follows that of the person in whose
care and protection he is for the time being."

It is not considered appropriate, in this case, to make any exception for
cases where the insane person is married.' ~

XVI. Domicile---Uncei-tainty of

5.84. We have already recommended' the insertion of a provision to meet section 13A (New)
cases where domicile cannot be determined'. This may be inserted as section 18A. .'
The new section could be somewhat on these lines :--

"l8A. Where it is difficult to determine the domicile of a person by reason
of the fact that he has two or more places of permanent residence, the place,
being one of the two or more places aforesaid, where such person last
resided permanently shall be deemed to be the place of his domicile."

XVII. Applicalrle law, and proof of foreign law

5.85. Section 19 provides that if a person dies leaving movable property section 19; indie
in India, in the absence of proof of any domicile elsewhere, succession to the law when to apply.
property is regulated by the law of India. The section is to be read with sec-
tion 5 (2), under which succession to movable property is governed by the
law of domicile'. The section needs no ch_ange.

'Section 14.
'Sections 15 and 16.

'Urquhart v. Butterﬁeld, 37 Ch. D. 357: Far v. Crispin, l P & D 611, cited in Paruck, Indian
Succession Act, (1977), page 38. '

'Cheshire, Private International Law (1970), page 179.
'Contrast section 14, Exception.

'See supra.

'Contrast section 14, Exception.

'Para 5.21. supra.



46

Section 19A (Net-.)A-- 5.86. At this stage, it would be convenient to deal with one matter which
Presumption as to may necessitate the insertion of a new section in the Act. Under section 5(2),
f0re'3n13'-'-'- successfon to the movable property of a deceased person is regulated by the

law of the country in which such person had his domicile at the time of his death.
This necessitates proof of foreign law. Ordinarily, foreign law is proved' by the
opinions of experts? Sometimes, however, it is diﬁicult to get in India experts
in foreign law. It would, therefore, be useful to have a statutory presumption to
the effect that the law of the foreign country, unless proved otherwise, is the
same as the Indian law. While such a provision would create only a tentative
presumption, it would be of great practical use. The object would be to avoid the
inconvenience which might result if competent foreign experts cannot be summon-
ed Wllilollt delay or expension which might be disproportionate.

Burden of 'proof 5.87. Even now, the burden of proof rests on the party asserting that

of foreign 1aW- foreign law differs from the law' of the country. Hence, the proposition suggested
above' will not introduce a radical change, but will make the statement of the
law self-contained.

In Englands, in the absence of proof to the eountrary, .the position is that the
court must give a decision according to the law of its own country', There are,
no doubt, one or two anomalous cases where the English court has not assumed
the foreign law to be the same as the English statute law'. But in general, it
is understood that foreign law is the same as English law, and the onus of
proving that it is different, and of proving what it is, lies upon the party who
pleads the differences.

Recommendation 5.88. In the light of the above discussion, we recommend that a new
a5'° f°F°'8"'3W- section should be inserted somewhat on the following lines :

"l9A. The court may, for the purpose of this Chapter, presume that the
law of a foreign country is the same as that of India".

CHAPTER 6
MARRIAGE: SECTIONS 20 T0 22

Scope of the 'Chaim 6.1. _The Succession Act, though concerned mostly with succession on death,
égfmggg h{_:"€ 5' also contains a few provisions dealing with "succession" to property on marriage,
' Elie effect of marriage on proprietary rights is dealt with in three sections--sec.
tions 20, 21 and 22. For a proper appreciation of their singniﬁcance, it is
necessary to have a look at the common law. 5

/'<t com.-iion law. apart from death, there was one other event in the life
of a_liuman being which could_ affect proprietary 'rights, namely, marriage.
Marriage affected the legal capacity or proprietary rights of women in several
respects, by virtue of rules of the common law that touched subjects so diverse
as torts, contracts, property, bankruptcy and even the criminal law.

Relationship Vylllh 6.2._ in course of time, these rules of the common law were considered
legislation relating anachronistic and they have been gradually abrogated by reforms effected by

tom ied vo en' . - -, - .
pr0p:;{y_ ' m 5 statute in, almost all COI1l'1l1'ILS in the common law fold. In India, such a refomi

1?-ection 45, Indian Evidence Act, 1872.
23cc Law Commission of India, 69th Report (Evidence Act), Chapter 18, pages 342, 348.
-"Cross, Evidence (1979), page 634.

'Para 5.86, supra.

-"Halsbury, 3rd Ed., Vol. 7, page 176, para 31.5.

"C'reri'n_;rro.»i-corn'! v. Mar/nero, (1955) 1 All E.R. 676, 679 (Willmer, J.).

7(a) Ry. Brixton prison Governor, Ex-Parte Colding, (1961) 1 All ER. 606. _

(12) De Re/ieville v. De Reneville, (1948) Probate 100; (1948) 1 All E.R. 56, 61 (C.--A.).

"The King of Spain v. Machado. (1827) 4 Rules 225, 239. Male v. Roberts, (1800). 3 Esp. 153.



4

-s)'

was effected by the Married Women's Property Act'. The sections under c0I_1s1-
deration also represent a statutory reform of the law on the same subject. "lhe
underlying object being the same, namely, _to provide that marriage, as Such,
shall have no effect on proprietary rights, thisipart of the Succession Act should
therefore be read in conjunction with legislation relating to the property rights
of married women". .

6.3. In the succession Act, section 20 Constitutes the P1'i"CiP'~"i PT0"15i0"- Section 20-
No person shall, by marriage, acquire any interest in the property of the person
whom he or she marries or become incapable of doing any act' in respect of
his or he; own property which he or she could have done if married.

- There are two exceptions to this rule------ﬁrst, the section 'docs .::o: apply
to any niarriage contracted before the ﬁrst clay of January 1866; secondly, it
does not apply to any marriage one or both the parties to which profess at the
time of the marriage the Hindu, Mohammaden, Buddhist, Sikh or Jain religion.

The ﬁrst mentioned exception is historical, and needs no comment. As to
the second exception, it may be explained that the object of the section is to
abrogate the common law rule (which might otherwise have applied) to the
etfect that on marriage the married woman becomes subject to certain incapacities
or that her property comes, to any extent, to be vested in her husband. Since
this rule of the common law was never applicable to Hindus and other persons
mestioned above", there was no need to extend the provision to them. iience
the second exception.

Further, comments on the section will be Offered' in the discussion on
section 21, which deals with connected matters.

6.4. According to section 21, if a person whose domicile is not in India S°°"°" 2]-
marries in Indian person whose domicile is in India, neither party acquires
by the marriage any rights in respect of any preporty of the other party not

' comprised in a settlement made previous to the marriage, which he or she would

not acquire thereby if both were domiciled in India at the time of the marriage.

6.5. The signiﬁcance of section 20 and 21 has been thus expiained5 by icctions 20-21 Sis-

iﬁcance.

Markby J. --

"The [ex Ioci of India, like the (ex loci of all other countries, is applicable
to the immovable property of foreigners sojourning but not domiciled here,
but not to their movable property. It was not necessary for the legislature,
when laying down the [ex loci, to reserve in express terms a principle of
law which is universally recognised. That this general principle was not
intended to be disturbed is clearly shown by section 4 (present section 20)
which resolves in a particular way an old standing dispute as to the appli
cation of the principle. The preponderance of authority had been in favour
of making the domicile of the husband, or at least that of the marriage,
govern the rights of parties where the domiciles of the husband and wife
are different. The Succession Act, where either of the parties had an Indian
domicile, very reasonably submits all their rights both as to niovables and
immovables, to the territorial law of India. To that extent, the ins gentium
or common law of nations, has been set aside or modiﬁed.

"From this point of view, it is easy to see why section 4 (section 20) and
section 44 (section 21) are kept apart. The two sections deal with different'
subjects. The former declares the general [ex loci of India, the second
lays down a special role to govern a particular case. It is not a iiioihficatioii
of lex loci, but a declaration of the law in a particular case."

13 '3_1at31'_Ca53', M11 -Illsficﬂ Sale has given the following interpretation of
the provisions in question :

1Law Commission of India, 66th Report (Married Womeri's Property Act, 1874).
'Married Women's Property Act, 1874.

Pmp'cl:p; :crt:l't:tla§i_;e*<)i. discussion, see Law Commission of India, 66th Report (Ma_rried)Nomen'5

'Para 6.4 to 6.6. infra.
'Miller v. The Administrator General of Bengal (1874) I.L.R. 1 Cal. 412, 420, 421 (Markby J .)
'Hill v. The Administrator-General of Bengal, (1896) I.L.R. 23 Cal. 506, 512.



Application of sec-
tions 20-21 illus-
tratcd.

No change propo-
sed in the section.

Section 22.

Position in common
law.

Right to be given
to mother also.

"In my opinion section 4 (present section 20) and 44 (present section 21)
read together should be understood as laying down a general rule as_ to
the immediate effect of marriage in respect of movable property belonging
to each or other of the married persons not comprised in ante-nuptial
settlement and not as laying down a rule intended to affect the law of
SllCCeSSl0n."

6.6. Application of these sections could be thus illustrated :

"If a man domiciled in England marries an Indian woman possessed of land
and money in India, she acquires his domiclic (section 15), and (in the
absence of section 21) her unsettled movables would, according to the
law of England, immediately become the absolute property of the husband,
while her immovable property would go according to that of India, the
lex loci rei sitae i.e. this Act. To prevent this evil of land and "movable
becoming subject to different rules in such a case, this section was
introduced."

6.7. We have carefully examined the sections in the light of such case law
as exists thereon. We do not see any need to recommend any amendment in
the sections.

6.8. This takes us to section 22 which provides that the property of a
minor may be settled in contemplation of marriage, subject to the approval of
the minor's father. or, if the father is dead or absent from India, with the appro-
val of the High Court. The Section is based on an earlier English statute', which
has now been repealed in England. '

0.9. At common law, a court had no power to make a binding settlement on
behalf of an infant. The Infants Settlement Act, 1855 was passed in England
to enable male infants over 20 and female infants over 17 to make a binding
settlement with the consent of the court of chancery. The Act was particularly
needed in view of the fact that when infants were wards, the court could not
sanction marriage without a proper settlement.

This was at a time when the age of majority in England was 21 years. As
the age has now been reduced to 18 years, the Act has been repealed.'

6.10. While section 22 contemplates approval of proposed settlement by
the father, it is totally silent as to the right of the mother in this regard. The
result is that if the father is dead or absent or under a disability, an application
under the section must necessarily be made to the High Court. Having regard
to present day notions, we are of the view that the section should be amended,
so as to provide that if the father is dead or absent from India or under dis--
ability, the mother can approve of the settlement of the minor's, property.
Accordingly, we recommend that section 22(1) should be revised as
under :--

Re-draft of section 22(1)

(1) The property of a minor may be settled in contemplation of marriage,
provided the settlement is made by the minor-

(a) with the approbation of the minor's father, or

(b) if the father is dead or absent from India or under disability, with the
approbation of the minor': mother, or

(c) if both the father and the mother are dead or absent from India or
under disability, with the approbation of the High Court.

'Ada ted from Stokes, Succession Act, page 24, as cited in N.D. Basu, Succession Act (1957),
under sec ions 20-22.

'Infants Settlement Act, 1855 (Eng.) (18 & 19) V c. 43 (Repealed by the Family Law Reform
Act, 1969).

'Family Law Reform Act, 1969.



49

6.l0A. We note that in an article' published in the Statesman which is Written Section 22 a sugges-
by way of comment on the La.w'C0mmissi0n's Working Paper on the subject, 3.'c';{'her'° 5"§::'e':,t§
the writer has suggested that in section 22, for the word "father ', the words cons,~dmd_
"either parent" should be substituted. She adds : "It need no longer be 'pre-
sumed that all mothers are incapable of deciding issues like property. They. must
be given the same right as fathers to act in this matter." If this suggestion is

accepted', the relevant portion of section 22 would read as under :--

"The property of a minor may be settled in contemplation of marriage, pro-
vided "the settlement is made by the minor with the approbation of either
parent of the minor."

We have considered the suggestion carefully. We must, however, note that
the section is, in a way, linked up with the general law of guardianship of
property of minors, as applicable to those to whom section 22 applies (broadly
speaking, persons other than Hindus, Sikhs, Buddhists, Jains and Muslims). It
would not be correct to view this part of the section in isolation from that gene-
ral law. The limited amendment that we ourselves are recommending in the
section would take care of hard cases. It would not be feasible to go further,
having regard to the integral link of the section with the law of guardianship as
pointed out above. We should record here that the fact that we are not going
further should not be taken as implying that we regard mothers as less capable,
than fathers, of looking after the proprietary affairs of their children.

CHAPTER 7
CONSANGUINITY (SECTIONS 23 T0 28)

7.1 Sections 23 to 28 deal with the concept of consanguinity. The scheme Sections 23- '28.

of the sections is logical. The applicability of the provisions of the Part having
been deﬁned in section 23, a deﬁnition of "kindred or consanguinity" is given
(section 24), the basis of consanguinity being descent from the same stock or
common ancestor. The connection or relatiqn_ arising from such descent could
be either lineal (section 25), or collateral (section 26). Certain rules as to
the persons who, for the purpose of succession, are similarly related to the
deceased, are similarly enacted in 'section 27. To facilitate the computation of
degrees of kindred, the First Schelule provides a table, to which legislative authority
is given by section 28.

It is obvious that consanguinity, being based on relationship by blood,
cannot exist as between husband and wife. {It is, therefore, surprising that any
such argument could have been advanced' before the Madras High Court.

The provisions in these sections are not applicable to Hindus, Mohammedans,
Buddhists, Sikhs, Jains and Pat-sees (section 23).

7.2. So much by way of introduction. We may now take the sections con-- scction 23_Am,n.
tained in this Part. Section 23 provides that nothing in this Part shall apply cation of Part.
to any will made or intestacy occurring before the first day of January, 1866,
or to intestate or testamentary successionto the property of any Hindu, Moham-
inadan, Buddhist, Sikh, Jain or Parsi.

The section needs no change.
7.3. Section 24 deﬁnes kindred or consanguinity as "the connection or rela- Section 24 kindred

tion of persons descended from the same stock or common ancestor." It may or consanguinity.
be noted that the expression "lrindered" occurred in several substantive sections

'Shahnaz Anklesaria, "Laws which discriminate against women" (20 June ,l984) Statesmah

6.
page'This concerns paragraph 6.10.

'Adm1ni'stratar General v. Simpson Josh! (1902) I.L.R. 26 Mad. 532, 534.



Section 25 Lincal
consanguinity.

Section 26 Collate-

ascending or
father is related to him in the first degree, and so likewise is his son; his grand-
father and grandson are related to him in the second degree; his great-grand-
father and great--grandson in the third degree, and so on.

50

of the Act, including the various provisions laying down the order of succession
on intestacy.

The section does not. seem to need any change.

7.4. Section 25 deﬁnes the expression "lineal consanguinity". The essence

of such consanguinity is direct descent or ascent. Sub-section (1) of the section
provides that lineal consanguinity one of whom is descended in a direct line' from
the other, as between men and his father, grandfather and great-grandfather,
and so upwards in the direct ascending line, or between a man and his son,
grandson, great-grandson, great-great-grandson and so onwards in the direct
descending line.

Sub-section (2) provides that every generation constitutes a degree, either
descending. This is illustrated by sub-section (3). A persons's

The section needs no change, having created no controversy or diﬁictilty.

7.5. Section 26 (1) deﬁnes "collateral consanguinity" as that which suhsists

ral consanguinity. between two persons who are descended from the same stock or ancestor, but

Persons held for
purpose of succes-
sion to be similarly
related to decea-
sed.

Section 28 Mode of
computing of deg-
rees of kindred.

degrees.

neither of whom is descended in a direct line from the other.

Sub-section (2) ol the section deals with the mode of commutation of

The section needs no change.
7.6. Section 27 provides as follows :--
"27. For the purpose of succession, there is no distinction---

(a) between those who are related to a person deceased through his
father, and those who are related to him through his mother; or

(b) between those who are related to a person deceased by the full
blood, and those who are related to him by the half-blood; or

(c) between those who were actually born in the lifetime of a person
deceased and those who at the time of his death were only conceived
in the womb, but who have been subsequently born alive."

The section needs no change.

7.7. Section 28 provides as follows----- , _ _ '
"28. Degrees of kindred are computed in the manner set forth in the table

of kindred set out in Schedule I.

ILLUSTRATIONS

(i) The person whose relatives are to be reckoned, and his cousin'-german,
or first cousin, are, as shown in the table related in the fourth degree;
there being one degree of ascent to the father, and another to the common
ancestor, and the grandfather; and from him one of descent to the uncle,
and another to the cousin-gcrrnan, making in all four degrees. '

(ii) A grandson of the brother -and a son of the uncle i.e. a great-nephew
and a cousin-german, are in equal degree being each four degrees rernov-p
ed. '
(iii) A grandson of a cousin--german_is in the same degree as the grandson
of a great-uncle, for they are both In the sixth degree of kindred."

The section needs no "change-

1Contrast section 26----Collateral Consanguinity.



51

CHAPTER 8

INTESTATE SUCCESSION : SECTIONS 20-30
PRELIMINARY

8.1. lntestate succession is atopic extending over several sections.of_ the glgﬁodztgcloargd (5305)
Act, but two of the sections--sections 29 and 30 deal with certain prehminary
matters. .

Section 28 deals with the applicability of this part of the Act. As certain
problems have arisen on the construction of section 29, it will be necessary
to discuss in some detail the relevant points'. As to section 30, that section is
really in the nature of a deﬁnition of the expression 'intestate', though. in form,
it does not purport to be a deﬁnition.

8.2. Part V Hi the Act lays down the rules of succession to the property Swtion ?9~S€°P°-

of a person dying intestate. Section 29, which occurs in Chapter I of this Bart,
provides that Part V shall constitute "the law of India in all cases of intestacy",
except as provided in that section. Chapter 2 of this Part lays down the rules
of succession in cases of intestates other than Parsis. and Chapter 3 lays
down the rules of succession for Parsi intestates.

The scheme of this Part is simple enough, but the very first section (section
29) has created certain problems. The section reads as follows :_.

"29. (1) This Part shall not apply to any intestacy occurring before "the
first day of January, 1866, or to the property of any Hindu, Mohammadan,
Buddhist, Sikh or Jain.
(2) Save as provided in sub-section (1) or any other law for the time.
being in force, the provisions of this Part shall constitute 'the law of India
in all cases of intestacy."

8.3. It is sub--section (2) of section 29 that requires some discussion. On C°""°V°.'5Y 9"

' . ' ' _ - - - - - - two points under
tggniggitions concerned with this sub section, there is a conﬂict of ;udicia_1 sub_sec,,on(2)_

(a) Whether, by virtue of section 6 of the Part B States (Laws) Act, "1950,
the T ravancore Christian Succession Regulation II of 1092 stood
repealed with effect from 1st April, 1951, or whether that Regulation
is saved" by the words "save as provided in . . . . . . . . . .. any other
law for the time being in force" which occur in section 29(2); and

(b) Whether customary law of succession is saved' by section 29(2).

8.4. The first question' requires consideration of the Part B States Laws Travancore Chris-
Act, 1950. That Act was enacted to extend certain Central Acts to Part B "an .Su=°=ssi<.>n
States, and among the Central Acts extended was the Indian Succession Act, Rt-°g5tca-"9n'C°na'°'
1925. Section 6 of the Part B States Laws Act provided that any existing law in iis sub;i;?eni:ce'.s to
a State, "corresponding" to the Central enactments extended to the State, shall
stand repealed. The question on which a conﬂict of views has arisen is, whether
the Travancore--Chr-istian Succession Regulation (2 of 1092) is a law "corres-
ponding" to the Indian Succession Act, 1925, and if so, whether it stands re-
pealed on the enactment of the Part B States (Laws) Act, 1950.

8.5. On this point, the Madras view and the Travancore--Cochin view are Madras 0350 of

in conﬂict. In a Madras case, 'the High Court held that the Travancore Christian 1974'

Succession Regulation was a law "corresponding" to the Indian succession

Act, 1925. It also held that the Travancore Succession Regulation of' 1092

did not fall within the purview of section 29(2), Succession Act, and would

not be saved by it.

8.6. The erstwhile Travancore Cochin High Court, however, had he1d".that T""""°°"° ca"
the Travancore Regulation of 1092(i) was saved by section 29(2) of the Indian °f

'Paragraphs 8.3 to 8. 10, infra.

'See paras 8.4 to 8.9, infra.

"Para 8.11, infra. '

'Para 8.3, supra.

5Solomon v. Jfatloiah (1974) I, l\/I.L.T.

°Kurien Angusty v. Devassey Aley, A.I.R. 1957 Travancore Cochin l.



Madras view.

Dr. Dcrrett's

, comment.

Position
Travancore
Cochin areal.

regarding
""5 to point out the anomalous position that now prevails on the question whether

52

Succession Act, 1925, and (ii) was not repealed by the Part B States Laws Act,
1950, as it could not be considered a law "corresponding" to the Indian Succes-
sion Act, 1925.

The Travancore Cochin High Court has construed the expression "save as
provided' in . . . . . . . . . . . . or any other law for the time being in force" in section
29(2), as including an existing State law, i.e., the Travancore Christian Succes-
sion Regulation, 1092. It found support for this view in two decisions' which
had held that section 29(2) saved the customary law of intestate succession
among certain communities. It also observed that the effect of section 29(2) of
the Indian Succession Act on the Travancore Regulation was to adopt that Regula-
tion by 'reference' and to make it part of the 1925 Act itself. In this view, it
could not be considered a "corresponding law" repealed by section 6 of the
Part B States Laws Act, 1950.

8.7. The Madras High Court has disagreed with the reasoning of the
Travancore~Cochin High Court, as well as with the earlier decisions relied
on by it. According to the Madras High Court, section 29(2) was in
pan" materia with section 2 of the Indian Succession Act, 1865 on the point
under consideration. Relying on three decisions" on the Act of 1865 which
had held that the section should be deemed to have universal application, and
that, any saving of any law had to be speciﬁcally provided for in the Act, the
Madras High Court ruled out the saving of any customary law by section 29(2).
It placed emphasis on the words "save as provided in any other law" [in section
29(2)]. This, according to the Madras High Court, clearly showed that the Act
which is sought to be saved should itself contain a clear provision to this
effect.

The Madras High Court found additional support in section 3 of the Suc-
cession Act. If the idea of saving any customary law under the Indian Succes-
sion Act, 1925, was in the mind of the legislature, it could -be done under
section 3 of the Act, by which the Government was empowered to notify and
exempt the operation of the Act in respect of any race, sect or tribe. Certain
communities had, in fact, been notiﬁed under the section, such as the Christians
in the (erstwhile) Province of Coorg and the Khasis and Syntengs in Assam.

The Madras High Court also found it impossible to accept the View of the
Travancore. Cochin High Court that the Travancore Regulation (of 1092)
was adopted by 'reference' by section 29(2). It 'observed that in such a case the
wording as the section should have been entirely different.

8.8. It is unfortunate that Syrian Christians, whose homes and landswere
transferred from Kerala to Tamil Nadu by the re-or ,anisation that took place
in 1956, should (as to succession) be governed by a aw different from that of
Syrian Christians (or, indeed, any other Christian) domiciled and having lands
in other talukas of Tamil Nadu. As observed by Dr. Derrett' this itind of
chaos, fruitful for lawyers, is anachronistic.

8.8A. In the Working Paper on the Act, the Law Commission had occasion

the Indian Succession Act, 1925, applies to the areas that formed part of the
State of Travancore-Cochin-itself a successor to the princely States of T ravancore
and Cochin respectively. The conﬂict of views that exists on the subject makes
the position very awkward and the Commission had drawn attention to the
need for settling the position in this respect. Case law on the subject relates to the
Travancore Christian Succession Regulation; but the same uncertainty would
seem to prevail regarding the Cochin Christian Succession Act also.

'(a) Nabujan V. Paui/u'omom', 54 Cal. W.N. , 2D.R. 14.

(b) Pram Chand V. Lilawati. A.I.R. 1950 H.P. 17.

'(a) De Souza v. Secretary ofS!a!e jbr India, (I874) 12 Beng. L.R. 423.

(b) Dagree v. Pacotti San Jao, (1895) I.L.R. 19 Born. 783..

apenbala Debi V. Sin' Kanta Banerjee, (1911) 15 Cal. W.N. I58.
'Derrett, 'The Personal Law of Syrian Christians in Tamil Nadu' in (1 974)2 M.L.J. (Journal).



3

lg.

8.8B. Apart from the question of uncertainty in _ _
need to consider the merits of the case. The legislation enacted in the two princely
States on Christian succession fails to give equal rights to women, and its provi-
sions are heavily weighted against women, as contrasted with the provisions of
the Indian Succession Act, 1925, as applicable to Christians dying intestate.
In this situation, Government may well consider whether it should not straight-
away adopt the course of speciﬁcally repealing the Travancore and Cochin legis-
lation, and of making it clear that the Indian Act etxends to the areas in
question---of course, with such consequential and transitional provisions
as may be appropriate. The Commission has an apprehension that the present
position, if challenged in the courts on the scope of conﬂict with the right to
equality under artic e 14 of the Contstitution, may not stand scrutiny. Incidentally,
it may be mentioned that the Commission has also come across an article in
a women's magazine' which has drawn attention to the discrimination against
women arising from the situation mentioned above in Travancore and Cochin'.

the law, there is the Dimimimi

treatment
WOIDCH .

ory _
against

8.9. The inconvenience of succession to a single individual taking place Inconvenicnce.

under different laws, according as his lands lie in different territories, has been
pointed out in another learned article'.

8.9A. In a Madras case of 1978, the matter was considered at some length Madras case of

but, with respect, the judgement does not satisfactorily clarify the position. It
was held that the Christian Succession Act of Travancore was a law "correspond-
ing" to the Indian Succession Act, 1925. However, at the same time, it "was
held that the Act did not stand repealed by section 29(2), because by its very
terms, that provision did not cover this particular enactment'.

1978.

8.10. Having given our anxious thought to the case law and the comments New T01' immi-
thereon as discussed above, we have come to the conclusion that the present mm"

situation is most unsatisfactory. The applicability of the Act to Indian Christians
in the areas to which the Travancore Regulation' applies should not be allowed
to continue to be a matter of controversy. We shall, later in this Chapter', make
appropriate recommendation on the above point, as to the Tranvancore' Act
(and also as to the Cochin Act on the subject).

We may mention that the need for abrogating the Travancore Act and the
Cochin Act has been emphasised in a comment on our Working Paper forwarded
by the Catholic Bishops' Conference of India'.

8.11. We should also like to mention that section 29(2) has raised another Customary law

controversy, namely is the customary law of succession saved by the section ',7
Is custom a "law" within the meaning of section 29(2)? Conﬂicting views
have been expressed on the subject. According to one view'-'', the expression
"any other law for the time being in force" in section' 29(2) would covcr
customary law also.

It is, however possible to argue that the expression "law for the time being
in force" in section 29 cannot appropriately cover a custom. Since the very

object of section 29 is to provide what shall be the law of intestate succe.m'on__
for the person concerned, an amendment is required, so that no controversy may"

arise on the above point also.

'Shri C.A. Achutha Menon's article in Eve': Weekly (Bombay), 21-27 July, 1984.
'See also M. Stanley Fernandez "Christian Women in Kcrala"A.I.R. 1984 Journal (October).
'R.S. Vcnkatachari in (1974) K.L.T. (Journal) 42-48.

) 'D. Chelliah Nadar v. Lalitabai, A.I.R. 1978 Mad. 65 (Kailasam CJ. and Balasubramanian
J. .

'Travancore Christian Succession Regulation 2 of 1092 (1916 A.D.).

'Para 8.12, infra.

'Catholic Bishop's Confercrieeof India, letter dated 3rd October, 1984.

'(a) Nabujan v. Paushinoni, 54 Cal. W.N. 12., DR. 14 (Customary Law of Garos).
(b) Prem Chand V. Lilawati, A.I.R. l956 I-I.P. 17.

'Solomon v. Muthiah, (1974) 1 M.L.J. 53.



Recommendation
as to section
and the Tnvnncorc

egulation.

Point regarding
tribal _ law and

Christianity.

Section 30.

54

8.12. To clarify the position on the two points discussed above, we make the

29 following recommendations 2

(.1) The Travancore Christian Succession Regulation 2 of 1092 should
be repealed by an express provision. This course may be adopted if,
as a matter of social policy, it is considered that the Indian Succession
Act should apply to the persons governed by the Travancore Regula-
tion, referred to above.

If, on the other hand, it is considered that as a matter of social policy, the
provisions of the Travancore Christian Succession Regulation should
govern succesion to the persons concerned, then there should be inserted
a provision in section 29 of the Indian Succession Act [0 the effect that
the Travancore Regulation would apply to Christians governed by that
Regulation in respect of intestate succession------ I'

(i) in the State of Kerala, and

(ii) the adjoining areas in the State of Tamil Nadu (in the 'district
of Kanyakumari and Shencottah taluk).

(b) Besides the above amendment, an Explanation should be added to
section 29(2) of the Indian Succession Act, to the effect that "law"
in this section does not include custom.

(c) What we have r=:commen._ied in sub--paragraph (a) above in relation
to the Travancore Act, applies with necessary adaptations, to the
Cochin Christian Succession Act also, .

In this context, we should mention that it is customary in the Christian
community (in the areas covered by the above recommendation) for fathers
to make a suitable provision for the daughter during their lifetime. The practice
of making such provision must have had its genesis in the consideration that the
rights of the females in the father's property are less favourable than the rights
of males standing in the same degree of relationship. If the Indian Succession
Act, 1,925 becomes applicable to the persons in question, it will be just and
fair that provisions made for daughters by the fathers should be taken into
account when the succession opens on intestacy. The reason is, that the conside-
ration in which this custom has its genesis would no longer subsist. It is there-
fore recommended thut if the Indian Succession Act, 1925 becomes applicable
to the persons in question, suitable provision should be made to the effect
that from the share to be distributed to a daughter on intestacy, the amount or
value of the property so provided by the father during his lifetime should be
deducted, provided that following conditions are fulﬁlled :--

(a) the making of such gift is evidenced in writing, whether or not the
writing is stamped or registered; and

(ii) the amount of the gift or provision or its value on each individual
occasion is not less than ﬁve hundred rupees.

8.l2A. In a comment' on the Working Paper forwarded to the Commission
by the Catholic Bishop's Conference of India, the query has been raised about
tribals who have their customary law. It is stated that if it is advantageous to
them, they should not lose their beneﬁt, merely by profession of the Christian
religion. This point really does not arise out of any proposal put forth by'us. The
effect of conversion on the law applicable is outside this Report, and, in fact, is
outside the Act. In any case, if it is considered proper to preserve any rule of
tribal law, necessary action can be taken under section 3.

8.13. Th's takes us to section 30, which provides that a person is deemed
to die intestate in respect of all property of which he has not made a testamen-
tary disposition capable of taking effect. The illustrations to the section spell
out the signiﬁcance of various ingredients of the section, The section needs no
change.

'Catholic Bishop's Conference of India, letter dated 3rd October, 1984.



55

8.l3A. The Government of Nagalandl, in its comment on the Working section 39-»: sugges-

Faper of the Law Commission, has stated that the provisions of the proposed ti0nc0nSId¢|'¢d-
legislation will attract the provisions of article 371A of' the Constitution, and

will not apply automatically to the State of Nagaland. The comment suggests

that section 30 should be amended to provide accordingly. We may, in this con-

text, point out that any legislation that may be passed to implement our pro-

posals in this Report will be an amending Act. If the principal Act does not

apply to a particular State, the textual amendments will naturally remain

inapplicable to that State. Hence there is, in our opinion, no need to amend

section 30 for the purpose. a .

»
.. ' - ' 2

V CHAPTER 9 '  \
RULES IN CASES or INTESTATES ornnn THAN i>ARsis (SECTIONS
31 T0 49) _  . s i

I. Preli-minary \ 9

9.1. Roles of succession in cases of intestates other than Parsis are dealt seep, of me provi-

with in sections 31 to 49. The scheme of this group of sections may be brieﬂy sions and general

stated. The first section in this group (section 31) excludes Parsis; and it may 5°h°m°-
also be noted that section 29(1) has already excluded, from the entire Part,_
Hindus, Mttlianmladans, Buddhists, Sikhs and Jains. Devolution of. property
of an intestate governed by this Part is in the order, and according to the
rules, contained in the succeeding sections. Section 32 so provides. The rules
differ according as the intestate has left a lineal desoendanvsection 33(a) and
sections 36 to 49--or has not left a lineal descendant--sections 33(b), 33(c) and
33A. The rules also differ in their content if the intestate has left a widow
(sections 33 and 33A and section 36, portion in parenthesis), as distinguished
from the situation where he has not left a widow (section 36, portion outside
the parenthesis). As between the lineal descendants themselves, the order of
preference is governed by sections 36----41.

The rules apply whether or not there is a widow, but after deducting
her share-section 36. Where there are no lineal descendants, the position is
governed by sections 42 to 48, which apply whether there is or there is not a
widow, but after deducting her share-section 41. What has been stated above
as to the widow applies also in relation to the \vidower--section 35.

Ute last section in this group--s-action 49 is a special rule meant for aspecial
situation, namely, that of "advancement", and dispenses with the need to bring
the "advancement" into the "hotchpot".

9.2 Coming to a detailed considereation of each section, section 31 deﬁnes .
the scope of Chapter 2 of Part 5, by providing that this Chapter shall not s°°"°" 3"
apply to Parsis. This was necessary because section 29(2), which is also in
Part 5, would otherwise have the effect of applyingthe provisions of this
Chapter, inter alia, to'Parsis also. \

The section needs no change.
ll. Order of succession where spouse survives.

9.3. Under section 32, the property of an intestate devolves upon the wife
or husband or upon those who are the kindred of the deceased, in the order
and according to the rules contained in the Chapter. The Explanation to the Sm.
tion deals with the special case of a widow who, by a valid contract made (before
her marriage, has been excluded from her distributive share of her husband's
estate. This provision is based on the English doctrine of pre--nuptial settlemem_
While two views can be taken as to the soundness of such a provision, we will

Section 32-pro-nup--
tial settlement.

 

~--o.--» __ __

'Law Commission File No. l'-'. 2(6) 84-LC, S. No. 13 (Got ernmcnt of Nagaland).
"See the marginal note to section 49, for these expressions.



56

not recommend a change in the absence of a speciﬁc demand or suggestion for
change.

section 33. 9.4. Where the intestate has left a widow section 33 governs the matter.
The section makes detailed provisions for three possible situations, namely,
(i) wherea lineal descendant also survives, (ii) where no lineal descendant sur-
viwes but persons who are kindred (other than lineal descendants) survive, and
(iii) where no kindred survives. The position is briﬂy as under:

(i) In the first situation, the widow gets one-third of the estate, and the
remaining two-third goes to the lineal descendants, in accordance with
detailed rules contained in later sections'.

(ii) For the second situation, section 33A (introduced in 1926) makes
a special provision, giving certain rights to the widow'. Subject to that
special provision, one half of the property belongs to the widow, and
the other half to the kindred, in accordance with rules contained in
later sections.

(iii) In the third situation, the whole of the property belongs to the
widow.

position in England 9.5. With reference to the second situation mentioned above', namely, the

where lineal deseen- situation where lineal descendants do not survive, the change made in the law

49"" '° "°' '""in England should be noticed. Under section 46 of the Intestates' Estates Act,

""'°' 1952, on the death of a husband intestate, if he leaves no surviving issue, parent,
brother or sister of the whole blood or issue of such brother or sister, his
whole estate will pass to the widow'.

Recommendation _ 9.6. The.E_nglish provision' is,_in our opinion, worth adopting, as it is more
to amend SW10" in consonance with present day sentiments. We recommend that section 33 should

I. I -
£s;"°1,',f,':n,"° ,,:f,:_be amended accordingly.

VCS .

. 9.6A. We should mention that an article published in the Statement', com-
menting on the Law Cornmission's Working Paper on the Act, has stated that if
a husband (belonging to the communities governed by sections 33 to 49) dies
leaving no lineal descendants, but has kindred, then, at present, only one half
goes to the widow, and the distant relatives take the rest. She suggests that the
widow should get the whole of the property in such cases. We may, in this
connection, point out that this is precisely what we had proposed in regard to
section 33 in the Working Paper, and it is also what we are recommending in
this Report'. The changes which we are recommending in section 33A are,
of course, in addition to the change recommended in section 33.

9.7. This takes us to section 33A. This is a lengthy section, but it is

s°°"°" 33A' enough to quote the ﬁrst two sub-sections:

"33A. (1) 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.

(2) Where the net value of the property exceeds the sum of ﬁve thousand
rupees, the widow shall be entitled to ﬁve thousand rupees thereof and shall
have a charge upon the whole of such property for such sum of ﬁve
thousand rupees, with interest thereon from the date of the death of
the intestate at 4 per cent per annum until payment". '

[The rest of the sectiwon is concerned with matters of details].

'Sections 36 to 40.
'Paragraph 9. 7, infra.

'Paragraph 9.4, (ii), supra.

'Section 46, Intestates' Estates Act, 1952 .(Eng.).
'Paragraph 9.5, supra.

'Shahn6az Anklesria. "Laws which discriminate against women" (20 June, 1984) Statesman
page . '
'Section 33, as recommended to be amended.



57'

9.8. We are of the opinion that theramount of Rs. 5,000 mentioned in
section 33A(l) should', having regard to the fall in the value of the rupee, be
increased to Rs. 35,000. We may note that the value of the rupee has certainly
fallen seven times since the section was inserted. We recommend that section
33A should be amended accordingly. In our proposal in the Working Paper, we
had suggested an increase upto Rs. 20,000, But, on further consideration, we
have reached the above conclusion. We may mention that" one of the suggestions
forwarded to us by the Catholic Bishops' Conference would even favour substi-
tution of Rs. 50,000.

The rate of interest under secti

on 33A should also, in our opinion, be
suitably increased, to, say,

9 per cent, having regard to present conditions.
We recommend that section 33A

the above increased ﬁgure of Rs. 35,00
and also the increased rate of interest

should be amended, so as to substitute
0 for Rs. 5,000 [in both the sub-sections]
of 9 per cent in [sub--section (2)].

III. Where spouse does not survive

9.9. We now proceed to section 34, which reads as under :----

"34. Where the intestate has left
lineal descendants or to those who
descendants,
left none wh

no widow, his property shall go to his
are of kindred to him, not being lineal
according to the rules hereinafter contained; and, if he has
o are of kindred to him, it shall go to the Government".

9.10. The ﬁrst part of the section creates no problems.

Recommendation
to amend section
33A, so as to in-
crease the amount
and the rate of
interest.

Section 34.

Position of illegiti-

mate child.

As to the second part of the section (under which the property goes to the
Government) certain observations appear to be in order.

The most usual cases that fall within the latter part of section 34 are
those relating to the estates of illegitimate persons who leave no wife or children.
In strict theory, in such cases the property goes by escheat to the State. If there
is no widow, no lineal descendants and no kindred, the Government will, under
section 34, take the whole. At one time, if an illegitimate person died leaving
no wife or children, the Crown took the whole property', but it was customary
for the Crown to re-grant the property to the persons who, if the deceased
had been legitimate, would have been entitled to it as next-of-kin. It is in re.
gard to such cases that a very early notiﬁcation of the Government of India'
is of great relevance.

9.11. We have in mind certain
Government of India Act,

1853-a British statute which applied in India'.
The "Governor-General"

had, under that statute, power to make any grant or
disposition of any property accruing to the Crown by forfeiture,.. escheat or
otherwise, to or in favour of, any relative or connection of the persons from whom
the same shall have accued'.

It appears that a notiﬁcation' was issued under the Indian Succession
Act of 1865, giving effect to the practice of rergranting the property to certain
relatives in cases of illegitimate persons. From the property to be-re-granted,
expenses of administration as well as certain shares were deducted'.

'Paragraph 9. 7, supra.

'Catholic Bishops' Conference of India, letter dated 3rd October 1984.
"Secretary ofState v. Gird/tart' La/, I.L.R. 54 All 226.

'Sec Para 9.11, infra.

'Government of India Act, 1853 (16 and 17 Vict. c. 95). section 27.

'Henderson, Testamentary Succession and Administration of Estates in India (I928),
43.

'Government of India, Notiﬁcation dated 31-3-1873;
page 334.

'Henderson, Testamentary Succession and Administration of Estates in India (191),

P389
Gazette of India, 5th April, 1873 Part 4

page 43.

notiﬁcations issued on the subject under the N°"5°'"°"' i'"'°d

y the Governor-

General.



58

By a further notiﬁcation of the Home Department', the following scale
was ﬁxed as to the Crown's share3:----

When residue amounts to less than Rs. 5,000--l/8.

When residue not less than Rs. 5000 but less than Rs. l0,000--l/6.
When residue not less than  10,000 but less than 50,000-----l/3.
When residue not less than Rs. 50,000 but less than l,10,000----1/4.
When residue not less than Rs. l,l.'0,000 and onwards---l/3.

Reconunendaﬁon 9.12. We have not been able to ascertain whether these arrangements still
to consider suita» continue. However, social justice requires that the need for some such arrange-

ble arr§.ns¢mentS.in ments should be considered in the context of section 34.
case of escheat etc.

swim 34 Sums_ 9.13. There is also a point. of drafting pertaining to section 34, apart
Sim, Act ,;°m,,,,,,,d from the point of substance which has been mentioned above.What we wish
with section 29, to point out is that the corresponding provision in the Hindu Succession Act
Hind" 5.U°'3°55i°" is more precise than the provision in the Indian Succession Act. The Hindu
A" Succession Act' provides that the Government takes the property subject to
all the obligation of the heir.

For ready reference section 29 of that Act is quoted below :--

"29. Failure of heirs. If an intestate has left no heir qualiﬁed to succeed
to his or her property in accordance with the provisions of this Act, such
property shall devolve on the Government; and the Government shall take
the property subject to all the obligations and liabilities, to which an heir
would have been subject."

This seems to be an improvementon the wording of section 34 in the Suc-
cession Act.

Swﬁon 34_Re_ 9.14. ln_view of what is stated above, we recommend that in section 34,

commendation, for the last six words "it shall - . . . . - . - -. the Government", the words "such
property shall devolve on the Government and the Government shall take the
property subject to all the obligations and liabilities to which an heir would have
been subject", should be substituted.

9.15. This takes us to section 35. It provides that where a husband survives
his wiic, he has the same rights in respect of her property, if she dies inte_state,
as a widow has in respect of her husband's property if he dies intestate, The
operation of this section, read with section 33(b), is illustrated by a Madras case',
where it was held that, in the absence of any next of kin, the liiisband would
be entitled to the whole of the property of the deceased wife. One important

Section 35-Ro-
commendation.

consequence of the general rule in section 35 is that the special provision, inserted ' '

in 1926 in the form of section 33A to provide especially or the wife' (wodow)
applies to the husband also. Whether this was intended by the legislature when
it inserted section 33A is arguable. However, on the merits, and having regard
to notions current at the present day, there is no harm if section 33A also
applies to the surviving husband, by virtue of section 35.

The section does not seem to need any change, either of subtance or of
form.

. 9.16. Rules of distribution where there are lineal descendants are provided
ggifrf °f S°°"°"S for in sections 36 to 40. The broad principle is that the children share equally
per capita ("section 37), and ( where there are not children) the same principle
applies to grand-children, (section 38). Some is the position where there are no
children or grand--chi1dren, but there are great-grandchildren or lineal descendants
in a more remote degree (section 39).

'Supplement to the Gazette of India, November, 5, 1898, page 1923. .
'I-Ienderson, Testamentary Succession and Administration of Estates in India (1928), page 44.
"Section 29, Hindu Succession Act, 1956.

'Gama Daniyelu v. Yasu, A.I.R. 1925 Mad. ll10, llll

'Section 33A, inserted in 1926; see para 9.7, supra.



59

However, a diﬂerent provision has been made for cases where the intestate
leaves lineal descendants who do not all stand in the same degree of kinship
to him. Here, per capita distinction (sections 37 to 39) is replaced by distribu-
tion per stirpes (section .40), i.e. the grandchildren, great-grandchildren or
remoter lineal descendants take equally, between them, their deceasd parents'
(notional) share.

9.l7.In our opinion, even in cases governed by sections 37--39, there Section 37-per.m'r-
should be succession per stirpes, as that would be more in consonance with the MS Scheme recom-
general sense of the community. We recommend that section 37 should be revised mended'
as under, to carry out this object: '

Revised section 37

"37. Where the intestate has left surviving him a child or children, but no
more remote lineal descendant through a deceased child, the property shall

(a) belong to his surviving child, if there is only one, or
(b) shall be divided among all his surviving children as if section 40
applied to the case."

9.18. Apart from this point of substance concerning section 37, it may Section 37-Adop-
also be stated that according to judicial construction, an adopted child is not a mi and illegitimate
'child' within the meaning' of the section. Nor does the word 'child' in this °h'Id'°"'
section, include an illegitimate child".

In our opinion, however, this view does not reﬂect modern socio-legal
thinking in the matter of the rights of adopted and illegitimate children_ An
amendment in the law is required in order to widen its scope in this respect,
so as to cover both adopted and illegitimate children.

9.19. In this context, it is of interest to note that the' expression 'mother'3g¢c,i0,, 125 (1), Cr,
in the Code of Criminal Procedure, 1973 (in the provision for maintenance of P.C. 1973-meaning
wives and children), has been held to include an adoptive mother'. It was ex-.°i 'm°'h€F'-
pressly held that the fact that the General Clauses Act does not deﬁne the
expression 'mother' does not necessarily mean that the expression should be
taken in the restrictive sense. An expansion of the scope of section 37 of the
Succession Act would, therefore, be in harmony with general judicial trend.

9.20. To implement the above point. two alternatives are open--(i) the Recommendation
addition of a suitable Explanation to section 37, so as to include adopted and to amend section
illegitimate children within the expression "child", (ii) or, in the alternatives, 37v .9' '°,,"'§'"
inserting a deﬁnition of the expression "child" as including adopted and illegi- defmmon of child'
timate children, in section 2 (which is the general deﬁning section). The second
alternative is preferred, as it would settle the point in regard to all provisions

of the Act.

If the second alternative mentioned above is adopted, the following deﬁnition'
may be added in section' 2 :--

' "'Child' includes---

(a) an adopted child, in the case of un_\' one 11'/tose p€I'S0/ml l;:w
permits adoption.

(b) an illegitimate child."

100 'Ma K/um V. Ahma, I.L.R. l2 Rang. I84. Ranbir Sing/1 V. Bliattacharji, I.L.R. 0940) All

9112 the GoodsofSaralz Ezra, A_.l.R. 1931 Cal. 560. 562 (else of Je gvs), following Smith v. Massey
(1906) I.L.R. 30 Born. 500.

"Section 125(1), Cr. P.C. 1973.

'Baban v. Parbatibai (1973) Cr. L]. 1436, I437, para l0 to 13 (Bombay).

-'To be carried out under section'2.

'Compare (a) section 3(57). General Clauses Act, 1897 (Deﬁnition of 'son').

(b) Law Commission of India. 60th Report (General Clauses Act). page 17, para 3 . 24 (propo-
sed deﬁnition of 'daughter').

85-L/B(D)144MofLJ&CA--»--5



60

A comment re. 9.20A. Before proceeding to the next section, we would like to refer to a
ceived from the comment forwarded to us by the Catholic Bishop's Conference of India'. The
Ca"'°"° B'5h°P'5. point relates to our recommendation to the effect that the expression "child"
E:r2ff'ie"°e Cons" should be deﬁned as including an adopted child in the case of anyone whose
' personal law permits adoption". It is stated in the comment thatamongst Christians
there is no personal law permitting adoption and that the recommendation
would amount to discrimination against the child who is a Christian and_ who
is sought to be adopted by a Christian. The suggestion is that "Either Christians
should be allowed to legally adopt children or this amendment should be ftyther
amended". We would like to point out, however, that the question of permitting
adoption in communities in respect of whom it is not allowed at present is
outside the scope of the Succession Act, with which this Report is concerned.
The Act primarily deals with the devolution and distribution of property on
death. Assuming that the law applicable to any group of persons permits adop-
tion, the Succession Act, wherever it uses the expression "child", should ensure
that the expression will cover an adopted child. In other words, there should
be maintained a consistency and harmony between the verbal usage in the
Succession Act and the law outside the Succession Act. That is the only object
of the deﬁnition of "child" recommended by us. How far the law outside the
Succession Act should permit adoption, and whether that law should be widened,
is a matter which cannot be dealt with in the Succession Act.

Where intcstaic 9.21. This takes us to section 38, which reads--
has left no_ child.
but grandchild or "38. Where the intestate has not left surviving him any child, but has left

g'a"d'°hild'e"' a grandchild or grandchildren and no more remote descendant through a

deceased grandchild, the property shall belong to his surviving grandchild
if there is only one, or shall be equally divided among all his surviving
grandchildren".

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 nine 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." -

Section 38-Rights 9.2lA. Section 38 thus applies where there are no children, but there are
of issue of Dre-grandchildren. Comments are required on one point which arises out of the
d°°'"""°d °h'1d' section. Under the section, lineal descendants of the second degree take equally
per capita. It is a matter for consideration whether this position should continue.
It would appear that in England', where a child predeceases the intestate, but
leaves issue surviving at the date of the intestate, then the issue, if they attain
the age of 18 years or marry under the age of 18 years, take the share in the
residuary estate of the intestate which the parent would have taken if he had
attained a vested interest. In this sense, the issue takes per stirpes in England.

Need {or amend. 9.22. It appears to us that on the merits, the English rule on the subject
men'. is better than the Indian section. It should be pointed out that in the case of
Parsis', even the Inlian Succession Act provides distribution per stirpes (in the
corresponding situation). No doubt, some distinction is, in regard to Parsis,
made between cases where the predeceased child was a son and cases where
the predeceased child was a daughter. But that distinction is not material for the
present purpose. Further, even for Indian Christians and others, where' descen-
dants of varying degrees survive, succession per stirpes is the rule..
'Catholic Bishop's Conference of India, letter dated 3rd
'Paragraph 4. 8, supra.
"Section 47(1) (iii), Administration of Estates Act, 1925.
'Section 53, Indian Succession Act, l925.
'Section 40.

October, 1984.



'61

9:23; It may be pointed out that section 38 applies, inter alia, 10 1I1d_i3ﬂ_ Ch1_'1S-
tians, and presumably they would like to be governed by the rule of _distribution
per stirpes. rather than by the present rule of distribution (per cupita). If'thrs
assumption is correct, then section 38 should be amended so as to substitute
succession 36 per stirpes instead of the present rule of succession per caprta.

9.24. We, therefore, recommend that section 38 should be revised as Recommendation
U-nder:___ as to section 38.

Revised section 38

"Where the intestate has not left surviving him any child, but has left fygeﬁzf, ngntecslfﬁfi

a grandchild or grandchildren and no more remote descendant through a but grandchild or
deceased grandchild, the property shall---- grand chI1dr¢n-

(a) belong to his surviving grandchild, if there is only one, or

(b) shall be divided among all his surviving grand--chi1dren, as if
section 40 applied to the case."

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 nine grandchildren and no
descendant of any deceased grandchild. Children of John, Mary and Henry
will have one third, and will divide that one third equally amongst them-
selves.

(ii) But if Henry has died, leaving no child, then the children of John
will have one half and the children of Mary will have one half, and 'the
Chilrlren of each divide that one half equally amongst themselves."

9.25. This takes us to section 39, which reads---- S°°li°"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."

This section needs no change,

9.26. Section 40 reads as under :---- S°°"°" 40'

"4O (1) If the intestate has left lineal descendants who do not stand in the
same degree of kindred to him, and the persons through whom the more
remote are descendants from him from him are dead, the properly shall be
divided into such a number of equal shares as may correspond with the num--
ber of the lineal descendants of the intestate who either stood in the nearest
degrgehlcindred to him, died before him, leaving lineal descendants who sur--
vive 1m."

(2) One of such shares shall be allotted to each of the lineal descendants
who stood in the nearest degree of kindred to the intestate at his decease;
and one of such shares shall be allotted in respect of each of such deceased
lineal descendants; and the share allotted in respect of each of such dcccascd
lineal descendants shall belong to his surviving child or children or more
"remote lineal descendants. as the case may be; such surviving child or 4
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."

The section needs no change.

IV. No lineal descendants

9.27.Section 41 provides that rules of distribution where the intestate has Section 41.
left no lineal descendants shall be those contained in sections 42 to 48, "after
deducting the widow's share, if he has left a widow" Presumably, where a female

_ intestate-has left surviving her husband, the husband's share will also be deducted

by virtue of section 35. and the expression "widow" in section 41 will, accord-



62

ingly, be read as including the widower, husband. Section 41 need not be amended
on this point.

S°°"°"" 4346' 9.28. An important social question is raised by sections 42 to 46, which
apply where the intestate has left no lineal descendant. These sections do not
apply to Hindus, Muslims and Parsis. but as regards other persons, they con-
stitute the general law of succession on intestacy'. How. in the first place, the
sections give a perference to the father", so that if the father is alive. the mother
has no share in the estate of the deceased. This is not in conformity with current
thinking as to the Status of women. The law is in need of reform on this
point.

Secondly, where the mother is alive, but there is also brothers or sisters
of the intestate living, the mother has to share with the brother or sister, (as
also with the children of any predeceased brother or sister).

As is evident from section 46, it is only when the father is dead, and there
is neither brother nor sister nor child of any brother or sister of the intestate,
that the property belongs to the mother.

Eﬂ31iSh1aW'- 9.29. It would appear that in England, the law on the subject is different'.
Even where brothers and sisters of the intestate are alive, the father and the
mother take the property. They Share equally, and if only one of them survives
he or she takes the whole.

Rooommondiiitioﬂ 9.30. We are of the View that the provision in England is more in con-
'° amen 5"°'sonance with the wishes of a person dying intestate and belonging to the com-

' 43-46. . . .
tmns _ munities to whom sections 43 to 46 apply.

We, therefore, recommend that sections 43-46 should be so amended.

Position amongst 9.31. It may also be noted that amongst Parsis, the position is different'

P"515- in regard to the situation with which we are now concerned. In the first place,
amongst Parsis, the father and the mother exclude the brother and sister. Secondly,
the father does not totally exclude the mother but takes double her share, there
being a general provision5 to the effect that "each male shall take double the
share of each female standing in the same degree of propinquity."

Soction47. 9.32. Section 47 reads as follows :--

"47. 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." '

Recommendation 9.33. lt should be noted that this section does not apply until there is

for amcndmemaz least one brotlzer or sister alive. We are of the view that this should be made,'
clear. in order to maintain symmetry" with the wording of section 46 and section
48. The object could be achieved by adding, after the words "nor mother", the
words "but has left a brother or a sister" We recommend that section 47 should
be amended as above.

Revised section 47 will read as follows :--

"47. Where the intestate has left neither lineal descendant, nor father, nor
mother, but has left a brother or a sister, the property shall be divided
equally between his brothers and sisters and the child or children of such

V'SVc-ctioriV29.
'Section 42.
"Section 46, Administration of Estates Act, 1925 (England).

'Section 54(d), read with the Second Schedule, Part I ,and section' 55 read with the Second
Schedule, Part II.

5Section 54(d) and section 55.

"Note the words '_'and there is neither brother nor sister . . . . . . . . . . . . . ." in section 46 and
almost similar words in s. 48.



63

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."

9.34. Section 48 reads as follows :-- Secllo" 43'

"Where the intestate has left neither lineal descendant nor parents, 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 not quoted].

These relatives take per capita, as is shown by illustration' (iv) to the
section.

9.35. Now, this position (distribution per capita) may be satisfactory as Need for 'change
a general rule, but there is one partic.ular situation in regard to whicli some 3S_ 'O SUCCCSSIOH I°'*'
discussion is necessary. Where there are no brothers or sisters, but only children smpes'
of brothers and sisters, they also take per capita under the present law. This
seems to be unjust. The better course, in our opinion, would be to provide that
the .S'l(CCL'.SSl0i1 should be per stirpes in such cases. The accident of the death of
one issue should not affect the share of his or,her descendants.

9.36. The position under present section 48 may be contrasted with the Contrast between
rule applicable' under section 47 where there are brothers or sisters and also 5,6090" 43 and 5°C'
children of brothers or sisters. In such a case, the succession is per s'llI'[)L'.3', under "O" 47'
section 47. There appears to be no justiﬁcation for having a diiferent rule under
section 48, at least where the persons entitled are the children of brothers and
sisters.

9.37. We, therefore, recommend that section 48 should be amended so as Recommendation

to provide for succession per stirpes. to amend section
V _48 and illustration
Revised Section 48 will read as tinder---- av)'

"48. Where the intestate has left neither lineal descendant nor parents,
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."

Ex/)lant[on.----Where such relatives are children of brothers or sisters of the
intestate, they shall take stirpes."

Illustration (iv) to section 48 should be revised accordingly.
9.38. This takes us to section 49, quoted below :-- section 49.

"49. Where a distributive share in the property of a person who has died
intestate is claimed by a child, or any descendant 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 whom or
by whose descendant the claim is made shall be taken into account in esti-
mating such distributive share."

Brieﬂy speaking, the object of this section is to preclude any argument that
money given by way of "advancement" should be brought into the hotchpotch
9.39. Section 49 does not, in terms, apply to Parsisa. Pam:S,_poSmOn ,c_
But the Bombay High Court has held' that the English law would begardmg
applicable to parties who were Parsis with regard to the disposal of immovable
property situated in the Island of Bombay, The High Court referred to the opi-
nion of Mr. Roper, (Then Acting Advocate General of Bombay) who, after
examining the authorities on Parsi usages, which he found very indeﬁnite and
inconclusive, said that it would be difficult to assert that there was "any system

'See section 48, illustration (iv).
2Section 47 .

3Dhunjibhai v. Navazbai, (1881) I.L.R. 2 Born. 75, 82.

'Naoroji v. Rogers (1867) 4 B.H.C.R. 1, 97, 118 (traces history).



No change.

Scope.

Points of differ-
ences. (males and
females).

64

of law peculiar to Parsis", subject to the English law. This opinion was laid
before the Indian Law Commission, and later the Parsi community also accepted
it.

In later cases also, the Bombay High Court seems to have allowed the ap-
plication of the common law doctrine of advancement to Parsis in India. Coyajee
J. has observed', "I may say that as regards the theory of advancement being
made applicable to Parsis it has become such a well--settled law by this time that
several recent decisions on Originating summons have been answered by the
learned judges without ﬁnding any necessity to deliver judgements on those
questions."

9.40. The above discussion does not, of course, lead to any amendment of the
section.

CHAPTER 10
SPECIAL RULES FOR PARSI INTESTATES (SECTION 50 T0 56)

l().l. There are certain special rules for Parsi intestates, contained in sec-
tions 50 to 56.

The scheme of the seven sections devoted to this topic is simple. Certain
general principles relating to intestate succession among Parsis are lirst set out.
Of special interest is the provision for a relative's widow who re-marries. The
next two sections----51 and 52----deal with division of the intestate's property yvhere
the inteestate leaves children, there being separate provisions for male intestates
and famale intestates. .

10.2. Two important points of difference arise between males and females.
Where the intestate was a male, the share of' each son (and the widow it alive)
is double the share of each daughter, but where the intestate was a female, the
children (and the widower it alive), share equally". Secondly, where the intestate
was a male who left children, the father is entitled to a share equal to half the
share of a son and the mother is entitled to a share equal to half the share of a
daughter. There is no such provision in the case of a female who has left
children. Section 53 provides for the division of share of a predeceased child of
the intestate where that child has left any 'lineal descendant'.

The situation where the intestate dies without leaving any lineal descendant
but leaving a widow or widower (of the intestate) or widow of a lineal descen-
dant, is ﬁrst dealt with (section 54). The persons mentioned in the preceding
sentence do not necessarily take the entire estate; but only the speciﬁed portion
of the estate. The residue is to be distributed among the relatives speciﬁed in
the Second Schedule, Part I. Each male takes double the share of each female
standing in the same degree of propinquity.

Next is dealt with the situation where the intestate has left no widow, wido-
wer or widow of a lineal discendant (section 55). The next of kin set out in
the Second Schedule, Part 11, becomes entitled to the property in such case, each
male taking the share of each female standing in the same degree of propinquity
(section 55).

Where there is no relative entitled to succeed under the section so far referred
to, the property is to be divided equally among those of the intestate's relatives
who are in the nearest degree of kindred to him (section 56).

'Durslza B/turuc/Ia v. Dr. Edi P/iiro_Bharuc/za (unreported) suit No. 271 of 1952 (0.S.)
(Coynjec J \ quoted in Paruck, Succession Act, (1966), page 52.

'For further comments see para l0. 5, infra.



65

10.3. The provisions as to intestate succession to Parsis, disclose, on an
analysis, certain rules which seem to have their foundation in sociological fac-
tors. Thus, a male gets double the share of a female standing in the same
degree of propinquity'. The provisions also recongise the doctrine of represen-
tation".

These sections were extensively revised in 1939. The amendments of 1939
were made at the instance of the trustees of the Parsi Panchayat, who had

prepared a draft Bill which was ﬁnally approved by the Council of the Parsi
Central Association in 1933".

Basic sociological
factors.

10.4. An important aspect to which reference may be made is that the Amendment ofl939_

Amendment Act of 1939, which came into force on 12th June. 1939,' does not
seem to apply to agricultural land, because, in the Government of India Act,
1935,, devolution of agricultural land was exclusively a provincial subject. The
position «under the Constitutipn' is different; succession to agricultural land
appears to stand on the same footing as succession to any other property'.

After these general observations, a few matters of detail may be dealt
with.

10.5. Section 51 deals with the division of the property of a mule Parsi
intestate among his widow, children and parents. Clauses (a) and (b) of sub-
section (1) of the section provide that the share of each son shall be double
the share of each daughter on such intestate succession. In cases where the
intestate succession is in respect of the property of a female Parsi, section 52
provides that (1) the widower and each child receive equal shares and (2) where
there is no widower, the children get equal shares. Thus, on the father's death,
the son is entitled to double the share of each daughter of the property but,
on the mother's death, the children (which, of course, means sons and daughters)
get equal shares. The discrimination made in the ﬁrest situation between sons and
daughters does not seem to be reasonable at the present day.

It may be noted that under the Hindu Seccession Act', the property of an
intestate shall be divided among the heirs speciﬁed in that regard, which
(inter-alia) include the surviving sons and daughters, and each heir takes one
share, irrespective of sex. In contrast, the Indian Succession Act appears to be
discriminatory.

10.6. The discrimination found in the Indian Succession Act is opposed to
the spirit of article 14 of the Constitution, if not to its letter.

For the reasons given above, we recommend that section 51 should be so
amended as to provide that the daughter and son should get an equal share of
theproperty of their deceased father. This would also bring section 51 in line
with the provisions of section 52, wherein children get equal share in the
deceased mother's property.

10.6A. Sections 52 and 53 need no further' comments.

10.7. In sections 54(d) and 55, it is provided that in cases falling tinder
these sections, the property shall be so distributed that each male shall take
double the share of each female standing in the same degree of propinquity.
For the reasons given by us in regard' to Section 51, we recommend that sec-
tion 54(d) and 55 should also be amended so as to remove the disparity in
shares based solely on sex. It is interesting to note that under section 56,
where there is no relative entitled to succeed under the other provisions of this
Chapter, the property shall be divided equally among those of the intestate's

'Sections 5l(l)(a) and (b), 51(2), 53(a), 54(d) and 55.

'Sections 53(a), (c) and (d), contrasted with section 5l(b).
'Paruck, Succession Act, (1966), page 60.

'Gazette of India, 20th May, 1939, Part 1, page 854.
'Constitution, 7:1; Schedule, State List, Entry 13. '

'Laxmi Devi V. Surendra Kumar, A.I.R. 1957 Orissa 1, 4, para 14.
7Section 10, Rule 2, Hindu Succession Act, 1956.

'See recommendation as to section 51 (Paragraph 10.6, supra).

Section 51.

Recommendation
to amend section
51 .

Sections 52-53.

Recommendation to
amend sections 5
and 55.



ht)

'relatives' who are in the nearest degree of kindred to him. "Relatives" will un-
deniably include relatives of either sex.

Section 56. 108. Section 56 reads as follows 2-

"56. Where there is no relative entitled to succeed under the other provi-
sions 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."

In section 56, the word used is 'relative, whereas in section 55, the word
used is 'next-of--kin'. But both the words are synonymous'. Although the brot_h_er's
widow mentioned in Part II of Schedule II (which is referred to in section 55)
is not a 'next--of-kin', being not "related" to the deceased by blood, she would
succeed under section 55 as the next--of--kin of the intestate.

CHAPTER 11
TESTAMENTARY SUCCESSION---INTRODUCTORY (SECTIONS 57 and 58)

11.1. The topic of testamentary succession is introduced by sections 57 and
58, which deal with the application of the provisions of Part VI' to various
classes of persons. '

Scope.

The structure of sections 57 and 58(1), latter half, is elaborate. This is
primarily because of the way in which the law has developed historically'.

section 57_ 11.2. Section 57 reads as follows :--

"S7. 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 terri-
tories 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 these Territories and
limits so far as relates to immovable property situated within those
territories or limits; and

(c) to all wills and codicils made by any Hindu, Buddhist, Sikh 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 revoke any such will or codicil."

It may be noted that in course of time, only clause (c) will retain its
importance.

Certain sections of the Act not applicable at present to Hindus etc. may
require a second look from the point of View of the need to apply them to
Hindus etc. We shall deal with the matter under the relevant sections.

11.3. Section 58 reads as follows :--
Section 58. . _ _
"58. (1) The provisions of this Part shall not apply to testamentary succes-

sion to the property of any Muhammadan nor, save asprovided by section
57. to testamentary succession to the property of any Hindu, Buddhist, Sikh

'Hiribai v. Barjorji, I.L.R. 22 Bom. 909.
"See historical discussion, supra.



67

or Jaina; nor shall they apply to any will made before the first day of
January, 1866.

(2) Save as provided in sub--section (1) or by any other law for the time
being in force, the provisions of this Part shall constitute the law of India
applicable to all cases of testamentary succession."

The exclusion of' Muhammadans in section 58(1), in earlier half, is explained
by the fact that the Muslim law of wills, which is a part of the personal law
of Muslims. had already developed on its own lines when the Act came to be
enacted, and it was not considered expedient to abrogate its doctrines and substi-
tute new ones in their place.

The more important provision is really sub--section (2), which, because of
its peremptory language, has the effect of emphasising t.he "Codifying" nature
of this Part of the Act.

CHAPTER 12
WILLS AND CODICILS
(SECTIONS 59-62)
1. Introductory

12.1. Wills and codicils, as a general subject, ﬁnd place in sections 59 to scope and history
62. A brief history of the position in England as to testamentary dispositions
may be helpful, as it throws interesting light on some of the concepts and expres-
sions employed in Indian legislation also.

12.2. It was by steps that the fee simple in land became freely devisable Association with

by will in England. Bequests of personal property (including lease--holds) have religion-

had a longer history, though the true will did not become prevalent in England

until the revival of Roman Law studies in the early Middle Ages. Thereafter,

wills because general in classes of society, largely because of the encouragement

given to them by the Church which wished to ensure that some part of the dead

man's property should be distributed for the good of his soul.'

12.3. No doubt, it was this association with religion and its consequence Role of the Church.

that the Church was an invariable beneﬁciary under every will that induced the
common law, from the thirteenth century onwards," to leave all disputes concerning
the validity of wills to the ecclesiastical courts and this jurisdiction led to the
general rule that all wills must be produced before the tribunal of the Ordinary
(generally, the Bishop of the Diocese) and receive the authentication of a grant
of probate before they could be acted upon. The probate jurisdiction remained
exclusively with ecclesiastical courts until it was transfered to the new court of
Probate in 1857.

English law relating to formalities requisite for wills is partly statutory and
partly non--starutory.' Indian law on the subject is statutory, but the concepts
and expressions. largely borrowed as they are from,England, are reminiscent of
the ecclesiastical practice that constituted the nucleus of the English rules on
the subject.

11. Scheme of Section 59--62

12.4. The scheme of sections 59--62 is simple. Section 59 deals with the Scheme.
persons who are capable of making wills, In general, testamentary capacity

'Stephen, Commentaries on the Laws of England (1950), Vol. I , Pages 499, 500.
'Stephen, Commentaries on the Laws of England (1950), Vol. 1, pages 499, 500.
'Paragraph 12.8, infra.



Other functions of a _
testamentary docu- (section 59) ,

men: .

Analysis
sections.

of

the

08

requires a sound mind and attainment of the age of majority'. The age of majority
lS not, however, expressly mentioned in section 59".

Marriage is no disqualiﬁcation as regards testamentary capacity.' Physical
incapacity as such is also not regarded as an incapacity for making a will, if the
persons "concerned are able to know what they do by it".' Here the testis one of
ability to know, and not actual knowledge, in contrast with the provision relating
to "state of mind". Even an insane person can make a will during an interval
in which he is of sounl mind.' These propositions are laid down in three Explana-

tions to section 59.

But a person in a "state of mind" in which he does not know what he is
doing cannot make a will. And this is so irrespective of the cause that has led
to such a state a mind.' Here the test is of actual knowledge. By and large, this
requirement corresponds to the English notion of a "sound disposing state of

mind".
125. Though the principal object of a will is the disposition of prcperty
there are certain other incidental functions of a testamentary

document. Thus, section 60 provides' that a father, whatever his age may be,
may by will appoint a (testamentary) guardian for his minor children.

It is elementary that a will must be the result of the free exercise of the
will of its maker.

Certain factors adversely affecting the freedom of will in this context are
dealt with in a separate section".

Finally, it is provided that a will is liable to be revoked or altered by the
maker at any time when he is competent to dispose of his property by will.'
This brings out the ambulatory character of a will.

The sections in the group, taken together, thus codify the position in respect
of certain aspects connected with wills, namely, the will as a dispositive document
taking effect on death (and only on death), the ambulatory character of a will,
and the will as a voluntary and revocable instrument.

12.6. It may be stated that three sections (69---61) are concerned with
capacity to make a will, including in particular, the relevange or irrelevance of
certain factors connected with the condition or status of the testator, such as--

(a) sound mind",

(b) age",

(c) physical; incape.cit,y""

(d) married status (in the case of a women", and

(e) free will 1'.

One section (section 62) deals with the revocable character of a testamentary

disposition.
We may now take up the provisions, section by section.

'Section 59, main paragraph.

'Contrast section 65.

"Section 59. Explanation I.

'Section 59, Explanation II. Contrast section 59, Explanation IV.
'Section 59, Explanation III.

'Section 59, Explanation IV.

7Section 60.

'Section 61.

"Section 62.

"Section 59. main paragraph and Explanations 3 and 4.
"Section 59. main paragraph as qualiﬁed by section 60.
"Section 59. Explanation 2.

"Section 59. Explanation 1.

"Section 61.



69

Section S9--Capa-
» _ city to dispose of
"59. Every person of sound mind not being -.1 minor may dispose ot his PFOPCNY by W1".
property by will.

[Explanation l.--~A m£ll'l'l€(l woman may dispose of by will any property

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

Explrmaiion 2.----Persons who are deaf or dumb or blind are not thereby

incapacitated for making a will if they are able to konw what they do by it.

Explanation 3.--A person who is ordinarily insane may make a will during
an interval in which he is of sound mind.

12.7. Section 59 reads as follows :------

Ifxplanation 4.----No person can make a will while he is in such a stat;
of mind, whether arising from intoxication or from illness or from any other
cause, that he does not know what he is doing."

12.8. The English statutory provision' on the subject enacts that "it shall English provision-

be lawful for every person to devise, bequeath or dispose of by his will . . . . ..
all real estate and all personal estate which he shall be entitled to at the time of
his death". The legal requirements of sound mind and majority are not expressly
mentioned in the English section, but are left to be governed by the common law.
In contrast, section 59 of the Succession »'\ct, as already mentioned in the above
analysis,t* makes elaborate provisions spelling out this concept, in various Expla-
nations added to the section.

12.9. In England, prior to the Wills Act, 1837, a person etillltl dispose of Minimum age in
leaseholds or other personal property----- §38I13il_;and before

(a) at the age of 14 years, if a male or
{b} at the age of twelve, if a female.
But a person could not devise freeholds before the age of 21 years.

An infant cannot make an irrevocable disposition of interest in real pro-
petty-'

In 1837 the British Parliament ﬁxed a uniform age-2l years---as the
minimum age for wills of all property'. There was made an exception for soldiers
in actual military service or mariners or seamen at sea.

The age of 21 years ﬁxed in 1837 for the general community was reduced
to 18' in 1969 in England.

12.10. The requirement of mental capacity-soundness of mind~~is one Mental ¢ap.¢;¢y_

common to wills and non--testamentary dispositions. The earlier theory was that
such a person has no will or no "mind". But later it was recognised' that the
only legitimate and rational ground for denying testamentary capacity to persons
of unsound mind is the inability to take into account and give. due effect to
the considerations which ought to be present to the mind of a testator in making
his will, and to inﬂuence his decision as to the disposal of his property.'

Initially it was described as a requirement of 'sound mind, memory and
understanding'. As has been observed," the phrase 'sound mind' covers the whole
subject------there must be memory to recall the persons supposed to become ﬁtting
objects of testamentary bounty. And there must be understanding by the testator
to comprehend their relations to himself (the testator) and their claims upon him.

12.11. Reverting to section 59, the ﬁrst point to _be noticed in regard to section sgeiamend.
the section concerns the main paragraph, which provides_ that a person may mcrrtlt rchszrdmz Dr;
dispose of "his" property. There is, at present, no pl'0VlSl0n in the Act speciﬁcally gspisgd gf §';,"wm_

'Section 3, Wills Act, 1937.
*Para 12.4, supra. '
'Cheshire, Modern Law of Real Property (1976), page 920, citing Coke and Littleton.
'Sections 3 and 7, Wills Act. 1837.

'The Family Law Reform Act. 1969, (England).

'Banks V. Gaoafellow, (1870) LR. 5 Q.B. 549. (lS61~~l8'/'3) All E.R. Rep. 47.

'Banks v. Gooafellow, (1870) L.R. 5 Q.B. 549, (l861~--1873) All E.R. Rep. 47.
'Boughren v. Knight, LR. 3 P & D 64 : (1861-4873) All E.R. Rep. 40. 41.



70

providing that a person can (by will) dispose of property over s-r/zicli he has a
disposing power though it is not "his" property. It is desirable that some provision
covering property over which there is a disposing power exerciablc by will should
be contained in the Indian Succession Act'. Such a provision would be useful,
for example, in regard to the interest of a Hindu in coparcenary property, which
is now disposable by will". It may not be quite correct to say that such an
interest is "his" property during his lifetime, and it may, therefore, fall outside
section 59.
To achieve the object mentioned above, we recommend an amendment
revising the first paragraph of section 59 so as to read as under ;--
"Every person of sound mind, not being a minor, may, by will, dispose of
his property or any property over which he has disposing power which
he can exercise by will".

scommeiidaiiori 12.12. We may now refer to another point arising out of section 59. This
'amend 5°-°"°" concerns the test enacted by the words 'competent to dispose of his property

' in regard '° W' by will. The phraseology is, in one respect, inaccurate. Competence to dispose'

-cation or altera- . . . . .
m of appoimmem of property 13 governed by S€C[10I1 59, under which every person 01 sound mind

guardian. not being a minor may dispose of his property by will. Disposition of property
thus requires majority. But under section 60, the appointment of a guardian by
will is permissible to a father, 'whatever his age may be'.

it stands to reason that if a person can appoint a testamentary guardian at
any age, he should also be competent to revoke or alter the appointment, whatever
his age may be. We, therefore, recommand that the following proviso should
be added to section 59 :~--

"Provided that any person, whatevier his age may be, may, by will, revoke
or alter any will appointing a guardian or guardians for his child during
minority.' '

Kplanatiolh 12.13. Explanation l to section 59 is not intended to affect the general
requirements laid down in the body of the section, namely, (i) full age (majority),
and (ii) sound minds. One would have thought that tlus is clear enough. However,
in a Calcutta case' (decided under the earlier Act), an attempt was made to
persuade the court to read the Explanation apa-rt from the section, i.e., to regard
the Explanation as a self-contained provision dispensing with the requirement
of fun age (majority). The attempt failed.

°°°mm""d3'l°" 12.14. In order to put the position beyond doubt, we recommend that the

me d Section .- . - ' 7 -_._
,.aEx;am,ion Lﬁrst Explanation to section 59, should be revised as follows .

"Explanation l_--A married woman, if otherwise, competem to make a will,
may by will dispose of any property which she could alienate by her own

act during her life.''

action 59, Expla- 12_15, Explanation II to section 59 providesthat pei's_ons_ who are deaf,
'ti°""' dumb or blind are not tb be incapacitated from making a will, if they are able
to know what they do by it. One commentatorf emphasising the use of the
conjunction "or", has stated that the Explanation omits the case of a person
who is deaf and dumb and blind. We do not, however, share this doubt. Such

a person falls in each category. As the language of the section is clear enough,
no change is needed.

IV, Persons mentally incompetent

- - . ' hicli an amendment
- ' ' . 6. At th s sta e, we may mention one matter on_w .
,°','f, f,','§,,§',',§"§,§L'§,'T appealri 1m be nee]:ded,gAt present, there is no proyision in the Suclcfssciion AC3
lly inC0mPei<=m- whereby the pronertv of a person who 1S mentally incompetent can e ispose
of by 1 will to be made by the court or any other authority. Now, a situation

'Compare section 7, Transfer of ProP€"Y Act» 1382-

=Sectiori 30, Hindu Succession Act, 1956.

'-'In re '. Caroline Miranda, A.I.R. 1924 Cal. 644(Buel<1and JJ.
41,, re ; Caroline Miranda, A.l.R. 1924 Cal. 644.

'Paruck, Succession Act,CommentafY 011 5°°'i°n 59'



71

can possibly arise rendering the existence of such a power desirable. For example,
a person of charitable disposition becomes mentally incompetent and has no
near relatives. In the absence of a will, his estate goes either (by intestacy) to a
very distant relative, or (by escheat) to the State. It would be convenient if a
part of the estate could be given to charity. There may also arise cases where
justice requires that an earlier will made by a person who subsequently has
become mentally incompetent should be modiﬁed or revoked', or a new executor
appointed. The testator, in view of his mental incapacity, cannot do it now. There
should, then, be some authority vested with such a power.

In such cases, social injustice may result by virtue of the present position.
The matter does not seem to be speciﬁcally covered by the law relating to
lunacy".

12.17. In this context, it may be noted that in England. a judge has power3 Power of the judga
to make certain orders or to give certain directions for the disposal of property in England-
of mentally incompetent persons and to execute a "statutory will" in regard
to persons who are mentally incompetent'--5, if the judge has reason to believe
that the patient does not have testamentary capacity".

The relevant provision is contained in section 103(1), Mental Health Act,
1959 (inserted by section ]7(i) (dd) of the Administration of Justice Act.
1969), relating to statutory wills. Amongst the powers of the judge as to the
patients' property and affairs, the following is now mentioned in section 103(l ) :---

"(dd) the execution7, for the patient, of a will making any provision (whether
by way of disposing of property or exercising a power or otherwise) which
could be made by a will executed by the patient if he were not mentally
disordered, so, however, that, in such cases as a nominated judge may
direct, the powers confered by this paragraph shall not be exercisable except
by the Lord Chancellor or a nominated judges;

12.18. Section 103(3) of the Mental Health Act, 1959, (as amended in
1969) further provides :------

"any power of the judge to make or give an order. direction or authority
for the execution of a will for a patient-

(a) shall not be exercisable at any time when the patient is an infant.
and

(b) shall not be exercised unless the judge has reason to believe that
the patient is incapable of making a valid will for himself".

In a fairly recent English case", this section (section 103, Mental Health
Act, 1959) was applied and, on the facts of the case, the Court chose to give
notice to legatees under the earlier will. The facts of the case also illustrate how
there may arise a need for a court to modify a will. if a person who has made
certain testamentary dispositions" shows later (after becoming mentally incompe-
tent), an interest in the surviving members of the family.

12.19. We are of the view that it is desirable to insert a new section Recommendaﬁon
on the subject. As to the placing of the proposed new section, there are two to amend the jaw_
alternatives. It could be placed in the Succession Act (for which we are giving
a draft below)", or, in the alternative, the appropriate amendment may be made

'Cf. Re H.M.F., (1975) 2 A11E.R. 795.

2Indian Lunacy Act. 1912.

3See para 1.10. s!1_r1I'u.

'Sections 103 and 103A, Mental Health Act, 1959 (Eng).
"Section 17(1) and (2). Administration ofJustice Act. 1969 (Eng).
"See Re. H..\/I.F. (1976), Ch. 33, (1975) 2 A11E.R.795.

7Commas added to facilitate understanding.

"This means the Judge of the Chancery Division.

"Re. H..=\[.F. (\lental I'ati«.-nt Wills), (1975) 2 Al1E.R. 795. 799 (Coulding .1).
"Charities in this case.

"See infra, (Paragraph 12.20).



Recommended sec-
tion 59A. (Succes-
sion Act).

' Lunacy Act.

Recommended sec-

tion 49A. (Lunacy
Act)
recommendation).

72

by adding a section in the Indian Lunacy Act, 1912 in the Chapter' of that
Act dealing with the management of the person and property of lunatics.

12.20. If the amendment is to be made in the Succession Act, we recommend
that new section 59A may be inserted in that Act on the following lines :

'"''59A. (1) The court exercising jurisdiction under the Indian Lunacy Act,
1912 in relation to the property of a lunatic shall have power to make an
order, direction or authority for the execution, for the lunatic, Of a will
making any provision (whether by way of disposing of property or exercising
a power or otherwise) which could be made by a will executed by the
lunatic if he were a person of sound mind.

(2) An order, direction or authority for the execu.':'on of a will for a
lunatic--

(a) shall not be exercisable at any time when the lunatic is a minor,
and

(b) shall not be exercised unless the judge has reason to believe that
the lunatic is incapable of making a valid will for /u'nzsclf.

(3) A will executed in accordance with such order, direction or t..ut/'rarity
shall have the same eﬂect as a will made by the lunatic if he were a person
of sound mind.

(4) Any such order, direction or authority may be revoked or modiﬁed by
the court referred to in sub--section (1), which may also issue an order for
revoking or modifying a will already made by the lunatic or a will made
under this section for the lunatic."

12.21. The scheme of the Indian Lunacy Act, as it stands at present, is
that one set of provisions deals with the jurisdiction of the High Court in the
Presidency Towns, while another set deals with the jurisdiction of the District
Court outside the Presidency Town. If that Act is to be amended for the purpose
discussed above", two sections----say, section 49A and section 7lA--would have
to be inserted in that Act to deal with these two areas respectively. T he expression
to be used would be "the court" in relation to other areas, having regard to the
phraseology al-ready used in the Lunacy Act.

12.22 If, therefore, the amendment is to be made in the Indian Lunacy Act,
1913. we recommend that a new section may be inserted in that Act on the

(Alternative following lines :

"49A. (1) [he court shall have power to make an ordm; direction or
authority for the execution, for the lunatic, of a will rrzctkhzg any provision
(whether by way of disposing of property or exercising a power or otherwise)
which could be made by a will executed by the lunatic if he were a person
of sound mind'.

(2) An order, direction or authority for the e.xecui'ion of a will for a
lunatic---~

(a) shall not he exercisable at any time when the lunatic is a minor,
and

(b) shall not be exercised unless the judge has reason to believe that
the lunatic is incapable of making a valid will for himself.

(3) A will executed in accordance with such order, dircction or authority
shall have the same effect as a will made by the lunatic if he were a person
of sound mind,

(4) Any such order, direction, or authority may be revoked or modiﬁed
by the court referred to in sub--section (1), which may also issue an order

be considered under the Indian Lunacy Act, 1912, (Paragraph 12.22).

'Paragraph 12. 19, supra.

'Similar provision with appropiratc adaptations to be made in regard to the District.Court
as section 71A.

1



73

for revoking or modifying a will already made by the lunatic or a will made
for the lunatic under this section."

V. Guardian appointed by will

12.23. Section so reads-- SW0" 6<*s°°v°-
"A father, whatever his age may be, may by will appoint a guardian or
guardians for his child during minority".

Th-is section does not apply to Hindus, Buddhists' 3, etc. The section really
belongs to the Law of testamentary guardianship. It ﬁnds a place in the Act
because it also touches upon the sphere of wills.

12.24. While section 60 has created no problems, we are of the view that QU¢_5"°" ,0' I110-

a similar right should be conferred on the mother, at least in the absence of the 'h°' 5 "5m'
father, or, where the father is under disability. It appears to us that an amendment

conferring such a right would be in conformity with present day thinking. At

the time when the section was enacted, social opinion, in general, regarded the

father as the only person primarily concerned with the future of the child. That

is hardly the situation now.

12.25. In this connection it may be noted that in English law, either parent English law-
may, by will, appoint a guardian of a minor child. The relevant statutory provisions
(which contain certain other matters of detail also) are quoted below :--'

"4. Power of father and mother to appoint testamentary guardians

(1) The father of a minor may by deed or will appoint any person to be '
guardian of the minor after his death, ;

(2) The mother of a minor may by deed or will appoint any person to be
guardian of the minor after her death.

(3) Any guardian so appointed shall act jointly with the mother or father,
as the case may be, of the minor so long as the mother or father remains
alive unless the mother or father objects to his so acting.

(4) If the mother or father so objects, or if the guardian so appointed
considers that the mother or father is unﬁt to have the custody of the minor,
the guardian may apply to the court, and the court, may either--

(a) refuse to make any order (in which case the mother or father
shall remain sole guardian); or

(b) make an order that the guardian so appointed---
(i) shall act jointly with the mother or father; or

(ii) shall be the sole guardian of the minor.

(5) Where guardians are appointed by both parents, the guardians so
appointed shall, after the death of the surviving parent, act jointly.

(6) If, under section 3 of this Act, a guardian has been appointed by the
court to act jointly with a surviving parent, he shall continue to act as
guardian after the death of the surviving parent, but, if the surviving parent
has appointed a guardian, the guardian appointed by the court shalljact
jointly, with the guardian appointed by the surviving parent." .

l2.25A. We have taken note of the suggestion' of one writer. (in an article Section 60-sugges-
published in the Statesman), that "either parent" should, under section 60, have "£3" for _F3d|°81
the right to decide what is best for their child in the event of their death. We° 3"" °°"s'd°'°d'
are not inclined, for the present, to go beyond what we have already recommended.

'See Third Schedule read with section 57(c).

"See section 9, Hindu Minority and Guardianship Act, 1956.

'Sections 4(1) and 4(2), Guardianship of Minors Act, 1971 (Eng.).

'6Shahn:1z Anklesaria, "Laws which di»'criminate'aga'rnst women" (20 June. 1934) Statesman.
page .



74

R°C0mm€ndati0n- 12.26. We are not sure whether public opinion in India----even amongst
persons governed by section 60--wou]d welcome such a radical change. However,
we are of the view that the mothers right should, as a first step', be given recogni-
tion, at least for cases where the father is absent or incompetent to act.

Requirement 01' 12.27. Apart from this point. which is of substantial imporancc, there are

5°""d """d' ' certain matters of detail also requiring attention. It is obvious that under section
60, a person ought not to be allowed to make an appointment of a testamentary
guardian unless he (the person appointing) is of sound mind. It is appropriate
that this requirement should ﬁnd a place in section 60, on the lines of section 59
which relates to ability to dispose of property by will. We recommend that section
60 should be amended to carry out the above object.

Mi"°'i'y' 12.28. Incidentally, the "minority", mentioned at the end of the section,
is of the child, and not of the father. Opportunity could also be taken of making
that clear. '

Recommendanm; 12.29. In the light of the above discussion, we recommend that section

to revise section 60. 60 should be revised as under 1--
"60. (1) A father, whatever his age may be, if of sou_nd mind" may, by
will, appoint a guardian or guardians for his child during the minority of
the child'.
(2) A mother', whatever her age may be, if of sound mind, and if the
father is dead or incapablte of acting by reason of mental incapacity, may
by will appoint a guardian or guardians for her child a14;'iIzg the minority
of the child".

VI. Flaws in a will affecting the reality of consent

12.30. Section 61 reads--

"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."

(Illustrations to the section have not been quoted).

Analysis of section
61 .

The section deals with three vitiating factors in a will---
ti) fraud.
./ii) coercion,
(iii) such importunity as takes away the free agency of the testator.

Section _ 61-Free 12.31. In order that a will may be valid, a person must notonly possess

°h°'°" "' .'°5""'.' testamentary capacity (age and sound mind), but also exercise his genuine free

§','§,',';f"' dlsposhchoicc in the making of the will.AI_ack of free will is the subject matter of
section 61.

In England, it is stated that where a will is accompanied by force, fraud,
fear or undue influence the will or the aﬂected part which is produced in this

a

way, is not regarded as the act of the testator, and so probate is refused to
such a will'.

12.32. In the case of fraud. the mind is not overborne, but is misled.
Cases relating to fraud broadly fall into two 'categories, namely, ﬁrst, where
the fraud is as to the nature of the relationship existing between the testator
and the beneﬁciary', and secondly, where the fraud creates a false impression
in the mind of the testator about the natural objects of his bounty, thereby
leading to the exclusion of those natural objects of bounty or some of them'.

Fraud.

' "»cer.c;;.a{a;9;'n;;au lvlinirotyKarid'6uardian7shi1:Act, 197576.' I 
"See para 12.27, supra.
"See para 12 . 28, supra.

'See para 12.26. supra.
5Mellows, The Law of Succession (1977), page 64.
o[,, Ra Posner, (153) Probate 277; (1953) 1 All E.R. 1123 (reviews case law).

-.30,-es v. Rossborough, (1857) 10 English Reports 1192. 1213.



 

75

12.33. Fraud is not easy to deﬁne and the deﬁnition inithe Contract Act
is not generally regarded as very satisfactory'.

12.34. So far as the substance of the matter goes, courts have, in general, No change needed
given a wide meaning to that part of the section which deals with importunity', as to "improtvnity".
and it may not be wise to introduce any rigid deﬁnition of that expression. Some
of the judicial decisions have mixed up "coercion" and 'importunity', but there
is nothing to which any such mixing up can be attributed. In India, the sole.
question to be considered in this context is, whether the testator was "able to
know" what he did by the will. This is precisely what illustraetion (ii) to the
section provides.

12.35. In an Orissa case', it was contended that the will had been executed Orissa case.

under undue inﬂuence. because for some time the testator (father) had been
living in the house of the legatee (daughter), and during that period the wil
was brought into existence. The High Court, holding that there was no case
of undue inﬂuence here, and after considering illustration (viii) to section 61.
observed :-

"lt is very natural that a lather would live with his (laughter. The mere
Fact that the father resided with the daughter, or he had atfcction for
her, or that the daughter treated the father with hospitality and cordially,
would not amount to undue influence."

12.36. In the Contract Act' "coercion' is deﬁned as committing or threaten- coercion in the
ing to commit any act forbidden by the Indian Penal Code or the unlawful Contract Act.
detaining or threatening to detain any property to the prejudice of any person
whatever, with the intention of causing any person to enter into an agreement.

It is not clear whether that deﬁnition will apply also to section 61, Succession
Act.

12.37. As regards 'irnp0rtunity' mentioned in section 6|. it must be such l\_/leaning_ of
as takes away the free agency of the testator. Beyond this, the exact scope; of "'"P°"'-""'>"-
that concept is not deﬁned in the section. It would cover that kind of inﬂuence
which the Indian Contract Act has described as "undue inﬂuence" but it seems
to be wider in its scope than undue inﬂuence. While illustration (v) to section
61 (which illustrates the concept of importunity), does not go beyond what
the Contract Act has described "as undue inﬂuence", illustration (vi) to the
section seems to go beyond that concept. According to that illustration. if a
person, "being in so feeble a state of health as In be unable to resist importunity",
is pressed by another person to make a will of certain purport, and does s(9
merely to purchase peace and in submission to that other person, then the will
is invalid.

2.38. In England, 'duress' is a vitiating factor in regard to wills. Tl16Duress in England
common law conception of duress (threat of physical harm), however, was so
limited that injustice could result, since a person could be imposed upon by
subtle methods which lay outside the scope of duress. The Court of Chancery,
therefore, formulated the doctrine of "undue influence", whereby a transaction
could be set aside in equity on that ground and money paid or property trans-
ferred thereunder could be recovered'.

12.39. In an appeal heard by the Privy Council from the Supreme Court Analysis in Privy
of New South Wales", Lord Wilberforce and Lord Simon of Glaisdale, in their Council WC-
dissenting opinions, analysed the various concepts vitiating consent. The obser-
vations were made in the context of the defence of duress, but the analysis is'
of general applicability and reads as follows 2.»-

"Thc basis of the plaintifl"s claim is, thus that though there was apparent
consent there was no true consent to the agreement: that the agreement

was not voluntary."

'Section 16, Indian Contract Act, 1872
'f?rzierzr{:'a Nrzﬂ-2 v. C/mwdbri Bimbrzr l.L.R. (1 967) Cuttack, 563.

;._ x'i'7S"'.- Lot 55;, 363 (D L' '

2, }-'';.'..'r, " C3':.'..'7.":'.'*;/ B"""""",

   
 

.  I6.  Indian Contract 1'' c'. 15:72'
1333' an.i._Ioee~,  of Reét't<i'.icn (1878:. D3:ic'19Z.
'. ' '_ 'Ba_'rraI v. zmzraug. (1915) '2 V1.3. tP.c).1o5o, was.

2, an

wumwaem



- in England and

76

"This involves consideration of what the law regards as voluntary, or its
opposite; for in life, including the life of commerce and ﬁnance, many acts
are done under pressure, sometimes overwhelming pressure, so that one
can say that the actor had no choice but to act. Absence of choice in this
sense does not negate consent in law; for this, the pressure must be one
of a kind which the law does not regard as legitimate. Thus, out of the
various means by which consent may be obtained--advice, persuasion,
inﬂuence, inducement, reresentation, commercial prersure----the law has to
come to select some which it will not accept a reason for voluntary action :
fraud, abuse of relation of conﬁdence. undue inﬂuence. duress or coercion.
In this the law, under the inﬂuence of equity, has developed from the old
common law conception of duress--threat to life and limb and it has arrived
at the modern generalisation expressed by Holmes J.-----"subjected to an
improper motive for action".

Probate doctrine

ofundue inﬂuence. 12.40. However. it must be noted that the probate doctrine of undue

inﬂuence is more circumscribed than that of equity. In probate law, the undue
inﬂuence must "amount to force and coercion, destroying of free agencies----it
must not be the inﬂuence of affection -and attachment----it must not be the mere
desire of gratifying the wishes of another; for that would be a very strong ground
in support of a testamentary act".

Undue inﬂuence

12.41. It was said in one of the English cases3--

India.
"The law bearing on this subject is uncontested undue inﬂuence is

the control of another's will over a person whose faculties have been
so impaired as to submit to the control of such another person, so that
the party making the will has ceased to be a free agent, and has adopted
the will of the controlling party." '

In India, it is needless to say, the wording of section 61 should govern
the matter.

I ' ' l - , . . . ' . . . . . .
uﬁgahefigﬁcssﬁgn _ _ 12.42. Unlortunately, Judicial decisions in India on the expression 'importu-
"undue inﬂuence", nity' do not adhere to the precise language ofsection 61. Many of the judge--

ments speak also of "undue inﬂuence"--an expression which does not occur in

section 61, though it is used in this context in English case law. For example, one ,
comes across decisions which emphasise that 'undue inﬂuence' must have been V

exercised in relation to the will itself', or that religious inﬂuence may sometimes
amount to undue ll'1ﬂUCl1Ce5, or that the burden of proving that the will was executed
under 'undue inﬂuence' is on the party making that allegation'.

In one reported case'----which, however, was not governed by the Act----
testamentary documents were challenged on the ground of undue inﬂuence and
it was stated that there must be evidence to show coercion.

Privy Council case. .
12.43. In the leading Privy Council case of Bur Singh v. Uttam Singh',

the test laid down to ascertain undue inﬂuence was as follows :-- e

"In order to set aside a will there must be clear evidence that the undue
inﬂuence was in fact exercised, or that the illness of the testator so affected
his mental faculties as to make them unequal to the task of disposing of
his property."
Reported cases as . '
¢0I'mD0rtunity- 12.44. A few reported cases which illustrate the scope of the section in
regard to importunity may be referred to.
'Fairbanks v. Snow, 13 N.E. Reporter 596.-598.
"William.r v. Goude (1828) l Hag. Ecc. 577, 581 (Sir John Nicholl).
"Lovelty V. 1_0t'efty, (1857) F and F 581. ' ' " - - -
'Nabagopal v. Sarala, A.I.R.l933 Cal. 574, 577.  ' ~- V.
"'Shr1'mati Bari/ii v. Kris/ran La]. 51 I.C. 1007 (Calcutta). 8. ;_._  -_.j_
"((2) Naresli v. Paresli, A.I.R. 1955 S.C. 363, 364 on appeal from I.L.R. (1952) 2 Cal. 56;' _
(b) Ajit Clzamlru V. Am] C/iandra, A.I.R.'1963 "Cal. 551, 552. V
_7SaIa Maliomed v. Dame Jan/mi', l.l_.R. 22 Bom. 17, 28 (RC), (Case outside Succession Act,
relating to Khojas). _ _ . - - __
"Bur Sing/1 v. Ulla/ii Singh, (1911) l.L.R. 38 Cal. 355 (RC). .

"A 59.0



4

77

In a Bombay case. on the death of a person issueless, his widow brought
a suit for the possession of his properties. The defendant resisted the claim of
the widow, on the basis of a will in favour of the detendant. From the evidence
on record, the Court came to the conclusion that it was the defendant who got
the will prepared, and he was the largest beneﬁciary under it. The question for
consideration before the Court was whether the will was duly executed by the
testator, as set up by the defendant. Citing an English case", the Court said that
the principles of law on which a Court should rely were as follows :----

"'l'he tirst. that the onus prubaiicli lies in every case upon the party pro-
pounding a will; and he must satisfy the conscience of the Court that the
instrument so propounded is the last will of a free and capable tcstator.
The second is that if a party writes or prepares a will under which he
takes a beneﬁt, that is a circumstance that ought generally to excite the
suspicion of the Court and calls upon it to be vigilant and zealous in
examining the evidence in support of the instrument in favour of which
it ought not to pronounce unless the suspicion is l'€m0'-,'C(i and is judicially
satisﬁed that the paper propounded does express the true will of the
deceased."

"Every intluencc exercised is not undue iiitlueiicej"

Court quoted with approval the observations in a Privy Council
case", where it was said that the burden of proving undue inﬂuence is not
discharged by merely establishing that a person has the power unduly to overbear
the will of the testator. It must be shown that in the particular case the power
was exercised, and that it was by means of the exercise of that power that the
will was obtained. The High Court held that "undue inﬂuence, in order to
invalidate a will, must amount to coercion or fraud. its existence must be
established as a fact and it must also appear that it was actually exercised on

the testator."

The High

On this reasoning, it was held that undue influence was not proved.
l...fi5. [he above discussion or the case law was intended to indicate No Change needed
the precise scope of the section, no change in the law being intended.

V l l. Mistake

l2.46. At this stage, we would like to discuss one matter in regard to which Mistakes in Wm
the Succession Act is silent, but which appears to be fundamental. The intention
to make a will, described by lawyers as animus tesmiidi, may be lacking, not
only owing to the circumstances mentioned in section 61, but also because of
a mistake on the part of a person executing a document as his will. Thus, when
a person duly executes a document believing it to be his will, whereas, in fact.
it is a document prepared as the will of another person, the document cannot
be admitted to probate' as his will. Of course, such a situation might also arise

as a result of fraud. But the same situation arising because of inistake caimot be
ruled out".

12.47. There is also the situation where a testaior executes a document insemon of words
into which words. or wrong words, have been inserted without his knowledge. without knowledge,
or from which words have been omitted without his knowledge. Here again, in
England', it has been held that while the court cannot include words omitted
by mistake except in certain cases. it can delete certain words?

l2.-18. it is a general principle of law that deeds of coiitiacts may be Genera; principle

avoided for duress at the instance of the coerced party and if it can be proved of law.

'Ranguvru V. SIie.sliuppa. A.l.R. 1927 Bom. 228.

'-'T'yrre/I V. Puiutuii, (1894) Probate l5l ; 70 L.T. 453: 42 W.R. 343.

"Craig V. L(Il)IOIlI'll.\', A.l.R. l9l9 RC. 32.

'In the Estate of Meyer. (1908) Probate 353.

'See Henry, Summerfield. "Knowledge and Approval" (1956) 106 L.J. 694.

'Re Cory, (1955) l Weekly Law Reports 725.'Discussed in Lee, "Correcting Testator's Mistakes 2

Probate Jurisdiction" (1969) Vol. 33, Conveyancer (New Series), page 322. -
7Sce Pulton \'. .4IIdI'£'W.\', 7 H.L. 448; (1874-1880) All ER. 1240.



78

that the document is not his. then the document is rendered void by reason of
duress].

Any deed. contract or transaction entered into under duress is voidable
by the' person conCei'ned"_ .

Provision in Gcr- 12.49. This brings us to the question of mistake. The German Civil Code3
man)'- has taken a new and much sinipliiied course on the whole inatter. Any kind of
"declaration of iiitentioii" is \oidab'.e on the ground of fiiiitttinieimil error, even
it the mistake is uiiilatcral; but it is voidaole only, and stibiect to the duty of
compensating any party for damage incurred by relying on the validity of the act.

()Lll' law. l0ll()\\'lllg lllc traditioiial coinmon Ian, does not go so far.

Non est juclum. 12.50. ln certain cases, a person may deny that a written document is his :
iitjll est faciupi. To sustain this plea, hemust be able to prove that he was
iiiistalvcii as to the Very nature and cliaracter of the document: a mistake merely
as to //ie COIlIt'I1f.\' of the document \\ill not be suliicient_ lf the plea is established,
then any contract embodied in the written document is void. No title to land or
chattels will pass to the transferee. and money paid under the contract will be
recoverable on grounds of total failure of consideration."'""

Need for ameiid- i2.5l. lt nould in our view he a proper course it, when it is discovered

rnent r6gaI'dingmis- that mistakes have occurred in drafting wills, the courts are given a power to

take' correct mistakes, At least where a clerical error is made in the drafting of the
will or \\here there has bceii mis--interpretation of the instructions of the testator
by the draftsinan. such a power may furher the cause of justice. If the language
is to he made to coiiform. in substance. to what the tcstator really intended,
some such power is desirable.

Recommendation 12.52. The situation is really analogous to that described in section 59,
35 *0 m15'akC- Explanation 4. which (so far as is material) provides that no person can make
(Amendment of - - - - .. -  ~ -
Section 61 reCom_a Wlll while he is in such stateof mind that he does not know what he is doing.
mendcdy The second illustration to section 59 takes a case where a person executes an
instrument purporting to be his will. but does not understand the nature of the
instriiment or the clicct of its proyisions. The instrument. it says. is not a valid
will. H()\\'CVCl'_ the words "state of mlI](l".ll'l se'cti0n>_59, Explanation 4, may not
literally cover the situation now under discussion. Ihe matter could he placed
on it sounder tiooting by addiiig. in section"6l_ after the words "the free agency
of the testator . the words 'or by mistake 7. We recommend that section 61 be

amended accordingly.

Vlll. Ambulatory character of a will
Sccﬁon 62. l2.53. Section (i2 provides as follows :--

"62..A will is liable to be revoked or altered by the niakcr of it zit any
time when he is competent to dispose of his property by will", '

As we have already pointed out", this section brings otit the abmulatory
character of a will. The section needs no change.'

'(iotl' and .lon;s. law oi' Rcstituioii (l 978:. page lo}.

'--'/i'u/'/on \. l/'/mrrriiig, (I975) 2. W.l,.R. lO50.

'*l).Ci.B. ss. I19-l22,citcd in Pollock, Contracts (1950), page 381,
'Goff & Jones. Restitution (1978), page 318.

"_/7' I I i  '! '1 . '1'{"{gf*. .1"'_°./l"1.E._' 'l97'.,|.3\. L. l!)')l. '<:!!o\-.t~.l !!! (,.,..,,,; [)Ut,.;,,i_
mu.-' '  -I  "."/'lf'f.'ji '1:"iCT. 513.

-v' '* "' .-i

l;,r'lV'--4' 1 i..__\..;.

"For the text if Station 61, see paragraph 12,30, guprg_ '
"See para 12.5, supra.



79

CHAPTER 13
EXECUTION OF UNPRIVILEGED WILLS : SIC(,"l'{().\'.S' 63-64.
1. Persons entitled to execute unprivileged wills.

13.1. For the validity of a will, it is necessary that not only the will must Sections 63 and
have been made by a person competent to do so', but also {list llle.l'0l'l1.lE';llllCL ?l':1;r1i'5i'f'eg:§1°dw*i'l'fS'1
laid down by law must have been complied with. These toriiialitic.s_, in the '
scheme of the Act, are dealt with separately under "uiiprivtlegetl wills and
"privileged wills". The category of "privileged wills" is meant e.\'clLisivcly tor
wills executed by certain members of the armed forces in certain situations.

For others, it is obligatory to comply with the provisions prescribed for unpri\'i--
leged wills.

The principal formalities in case of unprivileged wills lll'C----~1l written state-
ment (of testamentary intentions), signature by the testator (section 63) and
attestation by at least two witnesses (section 63): but incorporation of papers
by reference in a will is permitted (section 64),

lit the case of privileged wills, many of these toiztiiitlitics are dispensed
with by two sections (sections 65 and 66), to be (lisctissetl la-;ei'.

13.2.3 Of the two classes of wJlls--unpriviledged and priviledged wills--un_ Section 53--Vafi0|-15

 - , , - - ~ . . , s ts of execu-
privileged wills are dealt with ﬁrst, in sections 63 and 64. fioprfc of unpriv"e_

N'.
The requirements for the execution of unprivileged wills are claizoratcly gcdwm
stated in these sections. Barring a soldier employed in an C.\'pC(llll0n or engaged.
in actual warfare or an airman so employed or engaged or a mariner at sea,
every testator shall, according to the section, execute his will, according to the
requirements set out in the section in its three clauses. Theﬁrst requirement
relates to the signature or mark of the testator----clause (a), The second require-
ment relates to the placing of the signature or mark of the tCS[£It()r--v--Cl£lUS€ (b).
The third requirement is concerned with 'attestation--clause (c).

Convenience requires that the various aspects of execution of unprivileged
wills should be discussed separately. Before doing so, however, we would like
to deal with a question which touches the scope of the entire section.

II. Persons entitled to make privileged wills.

13.3. The ﬁrst point relates to soldiers and other persons in the arnietl E."°l"5i°" °f 5°!'
forces. Section 63 expressly excludes from its application "a soldier employed d-ms from Sec-
tion 63.

in an expedition or engaged in actual war or airman so employed or engaged or

a mariner at sea". The exclusion of soldiers from the scope of this section is

understandable, because the persons excluded by section 63 are dealt with in

section 65, which deals with privileged Wills. Bu! '.'('( _';1»il 65 i.'.r)t'.\ lit)! up/)l_,\'2 I0

Hindus'. The position, therefore, is that Hindu soldiers etc. are governed neither

by section 63 nor by section 65. Apparently, intheir case. the uiienactcd law

of wills (as applicable to Hindus) would still be applicable. This is not a very

satisfactory position. The process of ascertaining this unenacted law requires

research that is beyond the capacity of 21 lay-:nan-- and even beyond the resources

of some lawyers.

13.4. If this be so, then the present position is not very SiltlSf£lCl0l' _ There R°°°mm°"da'i°".
appears to be no reason why, at least at the present day, it should be ngcessary, §(;h:§£:ds:,h°a;rh,l;d
in the case of wills of Hindu soldiers, etc., to conduct such research, when no include sections
such research is expected in the case of Hindu civilians, 0r non--Hiridu soldiers, 65-66-

We, therefore, recommend that the Third Schedule to the Act should be amended'
so as to mention therein the sections relating to privileged wills, namely sections °
65 and 66 also, as applicable to Hindus etc. '

'Sections 59 to 61.
'Third Schedule.
"Point concerning section 65 also.

'T0 be carded out under the Third Schedule.



80

lll F0rmalities----sign2ture

Section 63 clausctal l3.5. We now come to the formalities required for the execution of wills.
Slgnafllrﬁ The tirst requirement. indicated by clause (a) of section 63, is that the testator

"shall sign or shall atlix his mark to the will. or it shall be signed by some other
person in his presence and by his directions". it should be noted that while
the formality of signature can--to ttse a loose but expressive word----be delegated,
the formality of allixing the mark cannot be delegated', The testator himeslf must
aflix his mark.

No particular form 13.6. No particular forth of signature or mail; is, however, required, Thus----
gﬂiredslgnaiure TC' contrary to the popular beliet--aﬂlxation ol a thumb mail; is not necessary.
' and there could even be a pen mark". A rubber stamp mark by the testator

would also be valid. if the testator is in the haliit of using such a mark".

13.7. In England, interesting questions seem to have arisen as to the complete-
ness of the signature. For example, if the testator attempts to sign, but fails
to complete the signature and dies, it can be shown that the person was capable
of executing the document and fully appreciated its contents, and that what he
wrote was intended to be his signature and that the will was duly attested'.

Completeness of
signature.

Meaning ofnsomg l3.8. The provision in section 63, clause (a) for signature by any other

other person". person under the directions of the testator raises an interesting question as to
the precise scope of the words "other person". in England. any of the attesting
witnesses may (where the testator directs him to do so) also sign on behalf of
the testator in his presence "and by his direction". in India, however, the words
"some other person" in section 63(a) have been interpreted as meaning a
person other than the testator and other than the attesting wt'tnesses5-6. In India,
therefore, if the testator himself does not sign the will, then, besides the "other
person" signing under section t»3(at. there must, under section 63(c), be two
witnesses who should sign the will in the presence of the testator7.

Recommendation 13.9. This position cteatcs tnvntcessary complications and the double forma-
'° amend 5°°'lit' "s tot l"'lii r' uir'l m any urinci le
tion 63(a) so.as to 5 I' I L' y kq k( i -- I P '
a"°"' a"°5'a"°" by Accordingly, we recommend that the law should be made simple by adding

ggfisﬁtfw 0Sf1gtI:,1§§,((,):1_an Explanation to section o3(a) as follows :--

''E.rplat1att'0tt.--7'/tt' (II/1t'I' /)t'I'.S'(HI sigt'tt'.ng for the testator under ('IaIl.S't' (a)
is ('0In])('l('IlI to attest the will under clause ((")."

Section 63(b)~P1¢1- J3.l(). The placing of the signature in a will is dealt with in clause (b) of
"mg °f 5'g"a'"'°. section 63. it reads :

"(b) The signature or mark of the testator, or the signature of the person
signing for him. shall he so placed that it shall appear that it was intended
thereby to give ellect to the writing as a will."

English Law, (1837 l3.l 1. it will he noted that section 63(b) contains no rigid rules as to the

AC" place where the signature -tnust appear on the will. In England, on the other hand,
statutOry provisions on the subject are more rigids. The Wills Act. 1837, lays
down that the will must he signed "at the foot or end thereof."

Section 9 of the Wills Act. I837". so far as is material_ reads as under before
its recent amendment :-- «

"No will shall be valid unless it shall be in writing, and executed in tnanner
ltereinafter mentioned; (that is to say), it shall be sigtwtl at the f00t or end
thereof by the testator . . . . . . and such signature shall be made or acknow-
ledged by the testator in the presence of two or more witnesses prese.nt at
the same time, and such witnesses shall attest and shall subscribe the will
in the presence of the testator. but no form of attestation shall be necessary".

'Rad/ttzkris/nttt \. Sttbrtt_t't1, l.L.R. 40 Mad. 550.

"Ram Nat/t V. Rum Ntzgitta, A.l.R. 1962 Pat. 48l.

".\'1'rm(tl C/ta/tdt't' \'. Sarat. (I898) l.L.R. 25 Cal. 9| I.

'In the Goods' of C/talcrtt/t, (1948) 1 All ER. 700.

-".4vabat' \'. Pe.ttmtt'l, ll Bombay High Court Reports X7.

"Raa'Itttkrt'.s/ma \". S11/)I'tl_l'£l, l.L.R. 40 Mad. 550. 556.

7/11 re Hem/ota. (1883) |.L.R.=9 Cal.' 226,229. , _

"Section 9, Wills Act, 1837, as ampliﬁed by section 1, Wills Act, Amendment Act, 1852.
"Section 9, Wills Act. 1837 (Eng). '



81

13.12. Section I of the Wills Act Amendment Act, 1852, gave a consider-- Act 05 1352-

able extension to the above words, "at the foot or end thereof, by providing:
"Every such will shall. so far only as regards the position of the signature of
the testator . . . . . be deemed to be valid within the said enactment. as explained
by this Act, if the signature shall be so placed at or after, or following, or under.
or beside, or opposite, to the end of the will that it shall be apparent on the face
of the will that the testator intended to give effect by such his signature to the
writing signed as his will".

The section goes on to provide that the enumeration therein of certain circum-
stances by which no such will shall be affected shall not restrict the generality
of the above enactment, but that no signature under the earlier Act (1837) or
this Act ( 1852) shall be operative to give effect to any disposition or direction
which is underneath the signature or which follows it, nor shall it give effect
to any disposition or direction inserted after the signature shall be made.

l3.12A. In England, by sections l7--28 of the Administration of-Justice RWDI English re:
Act, 1982 (Chapter 57), certain amendments have been made in the law of ﬁg" 3" '° f°""""'
wills. These cover the formalities for signing and attestation, effect of marriage "
and divorce on wills, effect of bequests to children etc. who pre--decease the
testator, rectiﬁcation and interpretation of wills, and international wills. Such
of the amendments made as are relevant in the context of Indian law will be
referred to in the discussion in the Report. at the appropriate place. At this stage.
it would be convenient to mention. in brief. certain important points.

Section 9 of the Wills Act, 1837, concerned with the formal requirements
for making wills, has been revised in England by the Administration of Justice
Act, 1982, implementing the recommendations of a Report of the Law Reform
Committee'. The signatures on a will (under the revised section) will not appear
"at the foot or end" of the will, provided the testator intended by his signatures
to give effect to the will. Further, it is not now necessary that each witness should
sign the will. This requirement of the earlier law is relaxed to allow the witness
either to sign or to acknowledge his signature in the testator's presence, Revised
section 9, Wills Act. 1837 reads as under :--

"Signing and attestation of wills.
9. No will shall be valid unless---

_(a) _it is in writing, and signed by the testator, or by some other person
In his presence and by his direction; and

(b) it appears that the_testator intended by his signature to give effect
to the will; and

(c) the signature is made or acknowledged by the testator in the presence
of two or more witnesses present at the same time; and

(d) each witness either--
(i) attests and signs the will; or
(ii) acknowledges his signature, in the presence of the testator I
( but not necessarily in the presence of any other witness).
but no particular form of attestation shall be necessary".
13.13. In India, all that is required is that the signature should be so placed I"di'*" 14""-
ztllsiag lsihaa-ll appear that it was intended thereby to give effect to the writing

In fact, in India, documents are sometimes signed by the parties on the
top, As the section does not lay down any positive rule as to the place where

'Law Reform Committee, 22nd Report (Making and Revocatio$f Wills) 1980 cmd. 7902
paras 2.01 to 2.13.

 Banerjee , Hindu Wills ACE Page 6, cited in ND. Basu's The Law of Succession (1957)
page .

See also Sabitri V. Saw', (1892), 19 C.W.N. 1297.



Further signature
contemplated.

Unsigned portion

of a will.

No change needed
in section 63(b).

Section 63(c)~Attcs-
tation.

Reasons in support
of attestation.

82

the signature is to be put, that practice may be regarded as sanctioned. The
signature must, of course, have been made with the object of authenticating /he
i.n5mmrem.

13.14. What is paramount is the intention', It would seem that if the
testator contemplated a further signature which he never made, the will must
be considered as unsigned. But a signature originally made without such object
may afterwards he adopted by the testator as his ﬁnal signature; such would he
the presumed intention, if the testator acknowledged the instrument to the
attesting witnesses that the instrument was his will without alluding to any further
act of signing; and under the present Act, which omits the words "on the face of
the will", extrinsic evidence of such intention would seem to be admissible'. A
testator's signature at the commencement of the will, when the witnesses signed the
same, and the fact of his admission to several of the witnesses that the papers
signed by them was his last will and testament, amounts to sufficient 'acknowledge.
ment' of his signature to his will?

13.15. The question of the effect of unsigned portion of a will came up in
England for consideration in 1960. Among the various points which arose for
decision in Re Little" (decreased), one was: "In what circumstances will the
court admit to probate an tmsigned portion of a will as forming part of the signed
portion of the will ?" -

The answer, according to the decided cases', would be that the courts will
not allow any document to form part of a will which was not plzgysically or
otherwise connected to the signed portion of the will at the moment of its
signature.

13.16. The above discussion, though not necessitating any amendment of
clause (b) of the section, elucidates several important points.

IV. Attestation.

13.17. After signature, the next important formality is of attestation, Clause
(c) of section 63 deals with attestation of a will in these terms.

"(c) The will shall be attested by two or more witnesses, each of whom
has seen the testator sign or aﬂix 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 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."

13.18. Before entering into a discussion of points of detail concerning clause
(c), we must deal with a basic question concerning the requirement of attestation.
Is the requirement of attestation of wills really needed ?

A discussion of the reasons for attestation is appropriate for properly dealing
with the question. The principal reasons advanced in support of the requirement
oi' attestation are, ﬁrst, that, thereby forgery is made more diliicult; secondly,
that there can be no doubt as to the identity of the testator when there is attes-
tation; and thirdly, that the likelihood of the will being signed unde-r coercion
is reduced. However, the validity of each of these reasons has been questioned.
It is stated' that if a person is determined to prove a forged will, he can also
forge the signature of a bogus witness.

if the witnesses have disappeared, a

Even in the case of a genuine will,
at there may be little difference in

will may still be proved otherwise, so th

 

2 'Stoke's Succession Act, page 31, cited by N.D. Basu, The Law of Succcssion(1957), page

Mmarendra v. Kashi, (1900) I.L.R. 27 Cal. 169.

3111 re Lirrln, (1960) 1 All ER. 387.

'See note in (1960) 230 Law Times 33.

'Mellows, The Law of Succession (1977), pages 70--72.



4
J

8

practical etlect between a will with two genuine witnesses who have disappeard
and a will with signature of two invented witnesses who are totally fictitious.

In regard to the identity of the testator, it is stated1 that in a society where
there is rigid documentation and recording, such a rule is no longer required.

13.19. Then, as regards the possibility of coercion, it is stated that if a
will is made under coercion, there is nothing to prevent thattestator from
revoking it as soon as the c-oercion ceases, unless he had (lied in the meantime.
While, in certain circumstances, the formal requirements may be useful to prevent
coercion, it is hardly a sound reason by itself to justify the retention of these
formalities. '

13.20. There is, no doubt, some force in the arguments against attestation as Atlcsfaﬁoﬂ

summarised above'. Nevertheless, we think that on a balancing of considerations,
it change dispensing with the attestation of wills might p1'0'.'c to be unwise in
the long run. Attestation at least has the merit of ensuring that-tlie document
was signed uftcr some reflection. in addition, it may often be useful as securing
witnesses to the execution of the will. These advantages could well outweigh the

other arguments.

l3.2I. The requirement of attestation need not, therefore, he done away
with. Certain matters of detail concerning attestation may now be considered.
Under section 63, clause (c), attestation must be in the 'presence' of the testator.
One of the questions to which the English case of C/zalcray'-ti gave rise was whether
the document had to be duly attested in the 'presence' of the deceased. Willmer,
J., recalled that he had been referred to cases which established the proposition
that a testamentary document must be attested not only in the physical. but
also in the mental, presence of the deceased. The testatrix wrote  Chal" and
could not go further, apparently because of the inﬂuence of a drug which had
been prescribed.

Willmer 1., observed that once the court had been satisfied that the document
was intended to be a testamentary document and had been properly signed, the
court would allow a certain latitude in construing the word "presence".

The operation of the drug would be inconsistent with the sudden departure
of mental faculties, and the proper inference to draw was that. since the document
was attested immediately after the deceased wrote what she did write, she was
still mentally 'present' in sutﬁcientdegree to comply with the requirements of

the Wills Act. 1837. The court accordingly pronounced in- favour of the codicil.

13.22. While attestation must comply with the detailed provisions

Safeguard against
coercion.

lobe

retained.

Attestation in pre~
sencc of tcstator
physical and men-
tal presence.

in 0131183 Simultaneous pre-

(c), simultaneous presence of both the witnesses is not necessary in India. whether sencc not necessary.

the attestation is direct (by actually witnessing the signature) or indirect (by
acknowledgement of signature by the testator). Section 63(0) is specific on the
point. On the other hand, the English law is different'"'5.in--as--much as both
the witnesses must be present when receiving the acknowledgement.

A recent English case illustrates the difficulty caused by the stringent
provisions of the law. It was held in that case." that the testator should sign the
will or acknowledge his signature in the presence of both the witnesses before
either of them has attested and subscribed the document. Thus, the requirement
of oral evidence becomes embedded in the section, causing injustice'.

As stated above, the Indian section is more speciﬁc on the point.

'Mellovrs, The Law of Succession (1977). pages 70-72.
"Para 13.19, supra.

3In Re. Clmlcraft, (1948) 1 All E.R. 700.

'See Wills Act, 1837, section 9 (Para 13.11, supra).

'In Re Collim, (1972) l \V.L.R. l44-0.

"In Re Calling, (1972 1 Weekly law Reports 1440.

7See comment in (1975) New L.J. 115.



84

Recommendation 13.23. Tliere is, however. need for clariﬁcation on one point concerning
10 3m°"d 5"°"°" section 63 (c). The requirement that the attesting witness must see "some other
63¢)' person" sign would require amplification. having regard to our comments on

clause (a) of the section,

In our discussion of clause (21), we have recommended that it should be
made clear that the "other person" signing under clause (a) is competent to
attest the will under clause (c). This clariﬁcation, to be made under clause (a),
should naturally be made to govern clause (c) also, in so far as it requires that
the attesting witness must see "some other person" sign. Accordingly, we re-
commend that helow clause (c) of section 63 an Explanation should be inserted
as follows :--

"Explanati0n.----Tl1e provisions of clause (C) are suli;'et"t I0 those of clause
((1) and the Expla'nati0n thereto".

V. Incorporation by reference.

secﬁ(,,,54 income. 13.24. This takes us to section 64, which deals with what is known in

ration of papers by England as the incorporation of papers by reference. The section is concerned

1'6f°1'€ﬂ°¢- with a situation where a testator refers, in a will, to any other document then
actually written, as expressing any part of the will in which it is referred to. "From
the wording of the section, it is obvious that the document must be inaexistence
at the time of the will, must be referred to in the will and must be clearly identiﬁed
in the will. These conditions are necessary, because otherwise, it would be
possible for the testator to make a will in outline, reserving to himself the power
to alter the incorporated document at some future date.

The doctrine of incorporation under section 64 would apply only if the
reference to another document is for the purpose of incorporationf.

The document so incorporated is normally included in the probate, unless
it is unwieldy.

No change of Subs- 13.25. Indian case law on the section is scanty. There are, no doubt, cases
tance. relating to secret trusts, but they are concerned with questions pertaining to the
law of trusts, rather than with the language of section 64.

The SUb_|CCt of secret trusts is dealt with in the case law relating to section
5 of the Indian Trusts Act, 1882. This matter, is, strictly speaking, outside the
scope of section 64 of the Succession Act. since the testator intending a secret
trust, does not. in the will. refer to any other document, either expressly or by

implication.

Recommendation .

to amend Section 13.26. However, it is necessary that the document must be described in
64.

the will as actually in existence. In order that this important requirement may
ﬁnd a mention in the section, we recommend that in section 64, after the words
"actually- in existence". the words. "and described as actually in existence" should
be inserted.

CHAPTER 14
PRIVILEGED WILLS : SECTION 65-66
I. Privilege : Justification

scam 14.]. Sections 65 and 66 deal with "Privileged wills", that is to say, wills
' executed by certain persons who are allowed to excute wills with formalities

that are less rigid than those prescribed for ordinary wills. Strictly speaking

the "privilege" is of the persons who are, by the law. given a right to execute,

' 'Earn 13.9, supra.
'Bat' Gangabai V. Bhugwan Das, I,I..R. 29 Bom. 530.



85

:1 will withcut undergoing some of the formalities ordinarily required for wills.
Broadly stated, the privileged persons (as the law in India stands at present)
are members of certain armed forces employed in an expedition or engaged in
actual warfare. and mariners at sea.

The special provisions as to privileged wills (sections 65-66) are primarily
intended to relax the stringent formal requirements for the validity of wills laid
down in the Act for the execution of unprivileged wills (sections 63-64). In
particular. there is relaxation of the requirement of--

( a) writing.'
(bl Signaturef and
(C) attestation?

An oral privileged will. liowever, has only limited validity in point of its
duration, inasmuch as. if the testator, being still alive, has ceased to be entitled
to make a privileged will. the will "shall be null" at the expiration of one month
after he has so ceased.'

l~l.2. These special provisions laid down for armed forces are justiﬁed Necessity constitu-
on the ground of necessity. When combat is actually in progress or expected tom'? 3 ""5"ﬁ°3"°"-
start at any moment, it is not possible to undergo elaborate testamentary formali-
ties-----or, it' the formalities have been already commenced,-----to complete them.
Non-completion of formalities is strikingly illustrated by the situation where a
soldier has proceeded to prepare a will but execution of the will in the manner
intended by him cannot be completed, by reason of external factors, even though
the intention to make a will has not been abandoned.5 This may, for example, '
happen where the soldier is killed by enemy action before completing the execu-
tion -of the will. The law takes care of the situation by a special provision of
the nature under consideration.

ll. History

14.3. It is of interest to note that the Indian statutory provision as toorigin in Roman
privileged wills, though immediately derived from the corresponding English 13"-
stattite", really owe their ultimate origin to the Roman law. The miilitary will
was introduced in Roman law by Emperor Julius Ceaser as a temporary conces-
sion, but it became an established institution in the early Empire'. In Roman law,
it soldier on active service might make his will as he pleased, and as he could. The
will might be a written instrument; it might be by an oral declaration in the pre-
sence of two or three comrades; it might be by tracing characters in his blood on a
scabbard or -shield, or with a sword in the dust, Such a will, if the testator
survived, remained valid for a year after honourable discharge from service'

l4.4. Thus, emergency gave birth to more liberal rules of law, This aspect English cases.
of the matter has been discussed inta number of English cases. Among the
many of the earlier English authorities dealing with the point, attention should
be drawn to two decisions of Sir Francis Jenunc, I'resident."--'° In the first case,
the president indicated that the test which commended itself to him was-had
the solider done something----had be taken some step-----at the time when he
made his will, to bring himself within the words of the section? "This brings
us very close to the Roman concept of in expenditioizs if indeed, not actually,
to the same point that the Romans meant by in expeditione for, when a Roman

'Section 66(1) and section 66(2) (8) and (hi.

3Section 66(2) (21), (c). (d). (el and (F).

"Section 66(2) (a) and lb).

'Section 66(2) (hi.

5Lee, Roman Law (1955), page 190.

"Section 11. Wills Act, 1837 (Para 14.6. infra).

'Lee, Roman Law (1955), page 190.

'Lce. Roman Law (1955), page 190.

"In the Good o_fHi.rc0ck, (l9Ql_)\ Probate 78, 83; (l900--~l903) All'E.R. Rep. 63.
'°('aIIwara' v. Knee (1902) Probate 99 (Order for active service). _



Meaning of "actual
military service" in
section 11, Wills
Act, 1837 and com-
parison with R0-
manLaw.

86

did anything towards lighting the enemy, he would have been considered under
the law of his time as being in exp.:ditione".'

14.5. In saying that that was the test which commended itself to him as
the correct one, the President indicated that he was not aware that it had ever
actually been laid down by any judicial authority; but, on the other hand, he
did not known of any reported case that was against it. In Gattward v Knee' he
suggested that he might be "going to a step further" than in the earlier decision;
but he had no doubt that mobilisation--giving to that word the effect which he
understood it to convey----might fairly be taken as the commencement of that
which, in Roman law, is expressed by the words in expeditione. Those words,
he said, meant something more than the English words "on an expendition",
because it was quite clear that when a force begain, in a sense, to engage in
or to enter upon active service, it would be in expeditione. The judgement goes
on: "I thought, when deciding the case cited, and I still think, that it is fair to
ask whether or not the person whose testamentary dispositions are in question
has done anything; but I am of the opinion that it' the order for mobilisation
has been received, although the men himself may have done nothing under it,
yet that order so alters his position as practically to place him in expeditione.
Such an order goes beyond a more warning. I do not think a mere warning for
active service would be sufficient'; but when a fore is mobilised I understand
this to be that it is placed under military orders with a View to some step being
taken forthwith for active service". That was what had happened in the case of
Wingham,' in which the document in question was held to be a soldier's will
under the Wills Act.'

. 14.6. So much as regards the history of the privilege, and some of the
essential ingredients of the privilege. The statutory provision in England on the
subject may now be referred to. Section 11 of the Wills Act, 1837, provides
that "any soldier being in actual military service" may dispose of his personal
estate without the formalities required by the Act.5 The material words in this
section are the same as those in section 23 of the Statute of Frauds. The
courts in England have, from time to time, experienced considerable difficulty
in construing these words, owing to tht fact that conditions of military service
and.nf Warfare generally have changed completely since the words in question
found their way into the Statute Book. It is now generally accepted that the
words, wher first inserted into the Statute of Frauds, were intended to confer on
British soldiers the same testamentary rights as had been enjoyed by Roman
soldiers under Roman law." I

In Drllmmrmd v. I'\'zri3/1,' the provisions of the Roman Law as expounded by

subsequent "nmmentators, were reviewed at considerable length. It was
observed----
It is quite clear from these passages from the Digest, the Code and the
commentators, generally, that the privilege did. not extend to soldiers of

everv description; they must be soldiers expeditionibus occupati, or called
out to defend the city; this last case was of itself an exception. for it could
not strictly be said to be "e.rpedin'0."

Later. the following passage in Swinburne on Willss was referred to :--

"Concerning the first sort. either they be such as lie safely in some castle,
or place -of defence. or besieged by the enemy, only in readiness to be
employed in case of invasion or rebellion, and then they do not enjoy these

lln the Good n/'Him>clr. (1901) Probate 78. 83: (1900-1903) All E.R. Rep. 63.
'Gut!wurd v. 1010:'. (1902) Probate 99.

3Re Winglmm. (1948) 1 All ER. 208, 209.

'See D.C. Potter, "S0ldier's Wills" (I949) 12 Modern Law Review 183.

'Re. Wingham, (1948) I All England Reports 208. 209.

'Re. Wz'ng/rams, (1948) 1 All England Reports 208, 209.

7Drummond v. Paris/2, (1843) 3 Curt. 522, 536. 537, 533, 542, referred to in Re Wirtg/Lam, (1943)
1 All E.R. 203, 209.

'Swinburne on wins, 711: Ed. (1803), Vol. 1, pages 95-96.



87

military privileges, or else they be such as are in expedition' Or aCtl1'c_1l
service of wars, and such are privileged at least during the time of their

expedition . . . . . . . .

"Being of opinion from the result of the investigation of the authorities
that the principle of exemption, contained in the llth section of the Act,
was adopted from the Roman law: I think it was adopted with the
limitations to which I have adverted, and that, by the insertion of the words
"actual military service." the privilege, as respects the British soldier, is
conﬁned to those who are on an e.rpedz'.ti0n."'

Some of the authorities ralating to the circumstances in which privileged wills
could be executed in England were reviewed in a recent English case in the
Family Division? The deceased was a soldier in service in Northern Ireland in
1978 at a time of armed and clandestine insurrection against the Government.
His unit was stationed in Northern Ireland as a part of the armed forces which
were deployed there at the request of the civil authorities to assist in the main-
tenance of law and order. While on patrol, the deceased was shot and mortally
wounded by an unknown gunman. En route to the hospital, he stated to an
officer and warrat oﬂicer of his battalion. "If I don't make it. make sure Anne
gets all my stuff." Anne was his ﬁancee. The deceased died the next day. Under
a written will made previously, the deceased had left everything to his mother.
On :1 Summons taken out by the ﬁancee applying for the deceased's oral
declaration to be admitted as his 1ast.will and testament on the basis that it
was a privileged will under section 1] of the Wills Act, 1837, the question arose
whether the deceased had been 'in actual military service' at the time of making
the declaration and was, therefore, entitled to make a non--cupative will.

It was held that whether the deceased was in actual military service for the
purposes of section 11 of the Act of 1837 depended on the nature of the
activities of the deceased and the unit or force to which he was attached,
and not on the character = 013 the opposing operations. The fact
that there was not a state of war or that the enemy was not a uniform-
ed force engaged in regular warfare or an insurgent force organised on conven-
tional lines, was irrelevant in deciding whether the deceased was in actual military
service. Nor was it relevant whether the deceased's military service took place
in the context of a foreign expedition or invasion or a local insurrection. On the
facts, the deceased had clearly been in actual military service at the time of
making the declaration and the declaration would, therefore, be admitted as a
valid non--cupative will. '

14.7. In a case decided by the New South Wales Court of Appeal," one of New South Wales-

the questions that came up for consideration was whether privilege was available °"''''

to the deceased tcstator who was a British subject domiciled, in New South

Wales, and who had. during 1944 and 1945. while employed by the U..S. Army

in the South--Wcst Paciﬁc as a civilian engineer, made a privileged will, The

question arose having regard to.thc fact that he was acting on behalf of the U.S.

Government. Following an early decision on the will of a soldier in the employ

of the East India Company' the New South Wales Court of Appeal held that

the privilege was not restricted to members of the forces of her Majesty,

IV. Privileged Wills in India----App!icabiIity to Hindus.

Section 65-PriviIe-

14.8. It is now time to turn to the text of section 65. quoted below:-- .
ged Wills.

"65. Any sold'er being emploved in an expedtion or engaged in actual
warfare, or an airman so emp'oyed 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 man11er provided in section 66. Such wills
are called privileged wills.

  '_';1'..:. .2 211
'_-Z: J.:.:':/ .1131; I _-5.1.' E 3. Q _
' '< 'via :;'-,.2 rpplfa-ti,-;: rf White (1975) W South Wales Law Report 125; Annual Survey of
Coaacmowvltn Lav' 1970. page 733.

'In the Case ofpomldson. (1840) 2 Curt. 1.

 
 



88

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 L! merchantsship of which he is the purser, He is a mari-
ner, and. being at sea. can make a privileged will. '

(iii) A, a soldier serving in the ﬁeld against insurgents in a soldier engaged
in actual warfare, and as such can make a prtvilcdged will.

(iv) A, a mariner of it 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.

(v) A, an admiral who commands a naval force. but who lives on shore,
and only oceassionally goes on board his ship, is not considered as at sea.
and cannot make a privileged will.

(vi) A. a mariner serving on 21 military expedition. but not being at sea,
is considered as a soldier. and can make a privileged will".

Non.eombatam_.--,_ . 14.9. It may be noted that section 65, illu,strati0ns ti) and (ii), seem to
imply that non-combatants attached to ﬁghting forces can also execute privileged
wills and fall in the category of "soldiers" etc.

Rccommcndaﬁon 14.10. We have already. discussed certain points' eonce_rning privileged

to extend section wills in connection with section 63. As has been pointed out in that discussion,

65 10 Hindus. etc. the defective drafting of sections 63 to 66 has led to the position that, at
present, the capacity of soldiers professing the Hindu, etc. religion to make wills
has become extremely doubtful. We use the short term "soldirs" to mean "a
soldier employed in an expedition or engaged in actual warfare or an airman
so employed or engaged or a mariner at sea." Section 63, which deals with
unprivileged wills. excludes soldiers from its fold by its express terms. Section
65, which deals with privileged wills, excludes Hindus, etc. from its fold by
virtue of the Third Schedule. The result is that Hindu soldiers are, as regards
the execution of wills, governed at present neither by sections 65 and 66
(Privileged Wills) nor by section 63 (unprivileged wills)--but by the unenactetl
law of wills as applicable to Hindus.

l4.ll. "inert: is no reported case discussing the applicability or non-
applicability of the section to soldiers who belong to the exempted categories.
including, in particular, Hindus. There is a Bombay case' and an Andhra Pradesh
case" under the section, but they' do not throw any light on the matter under
discussion. However, the Andhra Pradesh case does contain a dictum to the
tlfect that section 66 does not apply to Hindus.

Case law on section
65.

In any case. the present position is hardly satisfactory.

lt is, therefore, necessary to extend section 65 to Hindus etc. by amending

the Third Schedule.'
*§°V°°a'i°" ."°f P113 l~l.l2. Re\erting to section 65, it is to be noted that the revocation of a
"'°,3°d 'W' 5' privileged will also does not require elaborate formalities."' The Explanation to

section 72 expressly makes it clear that it_is not necessary that at the time
of revocation. the test:-ttor should be in a situation which entitles him to make

at privileged will.

'See discussion relating to section 63. chapter 12, supra.
38/zagubui V. Appuji, l.l..R. 47 Bom. 552: A.l.R. I923 Bom. 260.
"Ralm1mmal\. Thilaimnm/, A.l.R. 1957 A.}'. 336. 337, para 6.

I 'To be considered under the Third Schedule. - , , ,
~"Section 72, Explanation. ' - ', 



89

In England, the point arose and was argued.' in a case where a11 altetation
had been made in a privileged will by an unattested writing? The matter was,
however, decided on the basis of'a presumption that the alteration was made at
a time when the testator was in a position entitling him to make such a will.
l-4.13. l"inall_\,', it should be noted that, in lingland,"' persons below 18 Age of person mg.
can make a privileged will. A person making an unprivileged will must be1'§"I[('1%nl('j"':§fd "gel!
above the age of 18 years, but that requirement does not, in Englands, apply'comme,',I:1ed;n sec.
to those entitled to make a privileged will. The question to be considered is tion 65.
whether the same facility should not be available in India. It is true that persons
below the age of eighteen years are not ordinarily recruited to the armed forces
in India but the possibility of such a recruitment cannot be legally ruled out,
at least in the Navy. On the whole, there is a case for adopting the English rule.

We, therefore, recommend that section 65 should be amended' for the
purpose so as to allow soldiers etc. who are .minors to make privileged \vills.

The object oould be achieved by substituting. in section 65 for the words
"if he has completed the age of eighteen years" the words "who/iter or not he
has c0mpIeted the age of eighteen years".

We recommend accordingly.
V. Persons involved in Calamities--prop,0sed new section.

l4.l4. This disposes of section 65. Before proceeding to the next section, Section 65A-sugges-
it is convenient to deal with one matter on which an amendment of the Act tcd Pf,0ViSi0n T01'
by inserting a new provision seems to be called for. The point relates to the °a"""'"°5'
persons who can make privileged wills. At present, the provisions of the Act
(as to privileged wills) are conﬁned to persons belonging to the armed forces
and mariners at sea. The rest of the citizens must. comply with section 63 which
lays down elaborate formalities for making unprivileged wills.

Now, even in the case of civilians. one could conceive of many situations
where it may be extremely difficult to comply with the strict legal formalities
imposed by section 63-----as, for example, in the case of persons affected by
accident, earthquake, lire. flood or other similar calamity. These are all situations
wherein the persons concerned reasonably believe that death is imminent. They
may wish to make a declaration of their testamentary intentions, in view of the
anticipated imminence of death. But, at present, there is no legally elfctive way
of doing so. The law should enable persons so placed to make a will with less
stringent formalities than those imposed by section 63. What "less stringent"
formalities should be permitted can be formulated on the basis of section 66,
(_ privileged wills). For example, the provisions of section 66, clauses (a) to
(d) and (h), (at present conﬁned to armed forces) could be 'made' "applicable
to such persons without much substantial change. Section 66, clauses (e). (f)
and (g) could also be made applicable to them. though with suitable adaptations.

141.15. The Succession Act does not provide for this contingency, presumably
because attention has not so far been devoted to it. The matter, however, appears
to be one for which there is need for a suitable provision.

Need

It may be of interest to note that in one respect. the Roman law did
think of this situation as a special one, by providing that while, ordinarily, the
witnesses to a will should all be present together at the same time, it need not be
so where a will is made in the time of pestgjlence." This special treatment given
to wills made in epidemics seems to survive in some civil law countries?

'In the Estate o_fNewlaml, (1952) l All England. Reports, 84l, 851.
"See Halsbury, 3rd Ed., Vol. 39. page 890, para 1355. V
' "''''Se'ction 7'of the 'Wills Act,-'-I837, as amanded bythe Family Law Reform.Act, 1969.
'Section 1, Wills (Soldiers and Sailors) _'Act, I918, as' amended by the'Fa'mily- Law Reform
Act, 1969. '  ,

5Section 65 to be amended.
"'l__ee,.R_orna_n Law (1955), page 190.' _

TJ. Gareth-Miller, Machinery of Succession (I977), page 157, f.ii'.,?.'i2.%-'___ﬁ- i ' __ __'__i__' A ' ' 



Position in Japan

On verge of death
Article 1076.

In a place isolated
by administrative
measure.

Article 1082.
Article 1083.

Position in coun-
tries in Eastern
Europe---Hungary.

(19613.  1-]?

90

14.16. It would also be of interest to note that the Japanese Civil Code'

has, by a number of provisions, provideed for "exceptional forms" of wills,

applicable in special cases where ordinary forms of making a will cannot be
acted on. In Japan, it is permissible to make a will in a special form by virtue of
these provisions. There are seven special forms answering to seven different
special circumstances. It is unnecessary to enumerate all of them, but by way of
illustration, it may be mentioned that provision exists for the making of a will
in special form by a person "on the verge of death"? or by a person in a place
cut oil from communication on account of infectious disease. Ordinarily, Japanese
law does not require attestation if the will is a holograph. To this general rule,
an exeption is created by the prOvisi0ns relating to certain special situations. of
which two are quoted below3 :--

1. On the Verge of death. When a person on the verge of death through
sickness or any other cause desires to make a will, he may do so, in the
presence of at lease three witnesses by making an oral declaration of its
purport to one of them. In such case the person to whom the oral declara-
tion was made must write it down and read it over to the testator and
the other and witnesses and thereupon all the witnesses must sign and
seal the writing after having acknowledged its correctness (Art. 1076, 1).

A will made under the foregoing provision is void unless, within twenty days
from the date of the will, one of the witnesses or a person interested
applies to the Local Court (of the place of domicile of the testator if he
is still alive, or of the place of the commencement of the succession if he is
dead) and have it conﬁrmed (Art. 1976). Conﬁrmation (kaku-nin of
a will is :1 judgement by which the will is publicly certiﬁed to be in due
order and genuine; therefore, the court must not conﬁrm a will unless
it is satisﬁed that it is in due order and represents the true intention of the
testator (Art. 1076. 3).

2. In a n'ea cut of)' from communication on account of an infections

disease. A person in a place which by an administrative measure is isolated
from the outer world on account of cholera, or any other officially recognis-
ed infecfous 'disease, may make a will in the presence of a police otﬁcer
and at least one witness (Article 1077), because in such aplace it may
ed infectious disease. may make a will in the presence of a police officer
witnesses. '

In this case the testator need not write the whole document himself, but
the document must be signed and sealed by the testator, the draftsman,
the person required to be present, and the witnesses (Article 1082). If
there is a person who is unable to sign or "seal, the persons present or
the witnesses must make an additional explanatory statement of the fact
in writing (Art. 1083)".

14.17. We may also refer to the position in Eastern European countries.
While, in some countries in Eastern Europe, privileged wills are limited' in
scope, in several other countries, special provisions exist for certain special
situations (apart from the privilege given by the legal system to members of
the armed forces). 7

Thusf in Hungary, oral wills may be made in extraordinary situations in

which the life of the testator is in danger and in which the testator cannot make
a written will. or can make :1 written will only with considerable difficulty.' The

oral will is to be mad: by the testator reciting the contents of the last will in

1Articlcs 1076 to 1086 Japanese Cixil Code Becker, Principles and Practice of the Civil Code
of _Japan (i921), pages 756 to 759.

"Article 1076, Civil Code of Japan.

;;;-:'- .-.e'_:-'.;/_'; of L;:._'~;.a

5Szirmai. T.dg_ Laws. 0.' Ir.'ne:it;_.1:.ce in Eastern Eurppe and in the People's Republic of Chin;
(.:i';=:t;«J'1'7: page 1 --I~ (Poland), page 236 (R0man1a)3nd page 258 (Yugoslavia).

'Section 634.3i'tJﬂ3arLa$  Code.

 



91

the simultaneous presence of two witnesses and, on the same occasion, declaring
that the statement contains his will.'

An oral will made under the above provisions loses its force if the
situation of emergency has ceased to exist and the testator was, for a continuous
period of three months, in a position to make a will by an instrument."

14.18. Under the Polish Civil Code,-3 in cases where the making of a,nPoland.
ordinary will would be impossible or very diﬁicult owing to exceptional circum-
stances, i.e. disruption of transport, epidemics, military operations, illness or
accident of the testator, justifying a fear of his death, the testator may make an
oral will in the presence of three witnesses, present at the same time. (If the
testator is ill or wounded, the witnesses need not be present simultaneously).

This will should be committed to writing as soon as possible by one of
the witnesses, who must state the date of the will and the date of committing
the will to writing; the will must then be signed by two out of the three witnesses.
However, failure to write out the will immediately or lack of signature does not
invalidate it. It may be signed later.

If the last will is not committed to writing, its contents can be cstabli,shed
by sworn and identical statements of the two witnesses out of the three before
whom the testator so declared his testamentary intentions,

14.19. (a) In Romania, members of the Armeld forces and civilians Romania and
attached to armed forces may, in exceptional circumstances, make a will with Yugoslavia and
fewer formalities than ordinary wills, i.e. in the presence of the commander or R-S-F's-K CW"
ﬁeld officer, assisted by two witnesses. If the testator is sick or wounded, it can be Code'
executed in the presence of the doctor of the unit and such wills have temporary
force and lose their validity after six months when the testator returns to the
place where he can make an ordinary will. During epidemics, a will in the
presence of city council assisted by two witnesses is volid.' The physical condition
of the testator is irrelevant, and only the place should be under quarantine.

(b) In Yugoslavia, the law allows oral wills, (though exceptionallyﬂ)
where an emergency due to war or epidemic is created and the testator is not
in a position to make a written will. The validity of such a will is upto 30
days from the end of emergency. The will should be made before two witnesses
and any provision for the beneﬁt of the witnesses or their ascendants or descen-
dants and collaterals upto, the 4th degree or spouses of them, shall be null and
void. » .

(c) In the Civil Code of one of the States forming part of \U.S.S.R., there
occur the following provisions'. '

Article 540. Notarial Form of a Will.

A will should be drawn up in writing, indicating the place and time of its
compilation, and be personally signed by the testator and notarially certiﬁed.

Article 541. Wills equivalent to Notarially Certiﬁed Wills.

There shall be equivlent to notarially certiﬁed wills :

(1) wills of citizens being treated in hospitals, other in-patient medical
institutions, sanatolriums or iresiding in homes for the aged and disabled, which
are certiﬁed by the chief doctors, their medical deputies, or duty doctors of

these hospitals, medical institutions, sanatoriums, as well as directors and chief
doctors of the said homes for the aged and disabled;

'Section 635, Hungarian Civli Code.

'Section 651, 3rd paragraph, Hungarian Civil Code.
. "Article 82-84, Polish Civil Code.

'Romanian Civil Code, Article, 872.

'Yugoslavia Civil Code, Article 80 and 31.

'Articles 540-541, R.S.F.S.R. Civil Code (1964) Quoted inﬁl-Iazard, Butler and Magg's Soviet.
Legal System (1977), pages 398-399.

' 85oL/B(D)l44MofLJ&CA----7



Section 65A.

Section 66.

92

(2) wills of citizens on sea--going vessels of internal navigation sailing
under the ﬂag of the USSR which are certiﬁed by the masters of these vessels;

(3) wills of citizens in prospecting, aretic, and other similar expeditions
which are certiﬁed by the heads of these expeditions;

(4) wills of military servicemen and other persons being treated in military
hospitals, sanatoriums, and other military medical institutions which are certiﬁed
by their heads sanatoriums and other military medical institutions;

(5) wills of military servicemen and at points where military units, forma-
tions, institutions, and military training institutions are iituated where there
are no state notarial oﬂices or other agencies performing notarial activities, also
the wills of workers and eniployces, members of their families, and family
members of military servicemen, which are certiﬁed by the commanders (or
heads)of these units, formations, institutions, and educational instituti0ns_:

(6) wills of persons in places of deprivation of; freedom which are certi-
fied by the heads of the places of deprivation of freedom. '

Article 542 Signing of a Will by Another Person.

If a testator, by virtue of physical defects, illness, or other reasons, can
not personally sign a will, it may be signed at his request in the presence of a
notary or other otiicial (Article 541) by another citizen, indicating the-'reasons
by virtue of which the testator could not sign the will personally.

14.20. On a careful consideration of the pros and cons of the matter, we are
of the view that a new section, say, as section 65A, should be inserted' to
deal with the situation now under consideration. It is true that if death occurs
after a long time, it may be difficult to determine factually if there had been
a ﬂood etc. But the balance of convenience justiﬁes the insertion of a speciﬁc
provision as mentiond above. Accordingly, we recommend that a new sectson
should be inserted, somewhat on these lines. o

"65A. A person affected by dpcident, earthquake, ﬁre, ﬂood or other
similar calamit y in cirrrzmzszances wherein he has reasonable apprehension
of immediate death, may make a privileged will".

Section 66, clauses (e), (1') and (g), may,_in consequence, be slightly
amended so as to replace the words "soldier, airmen or mariner" by the words
"the person entitled to make a privileged will."

V. The formalities

14 21. We may now resume consideration of the existing sections. Section
66 reads :

"66. (1) Privileged wills may be in writing or may be made by word of
mouth.

(2) The execution of privileged wills shall be governed by the following
rules 2-~

(a) The will may be written wholly by the testator, with his own hand.
In such case it need not be signed or attested. ' _

(b) It may be written wholly or in part by another person and
signed by the testator. In such case it need not be attested.

(c) If the instrument purporting to be a will is written wholly or in
part by another person and is not signed by the testator, it shall be
deemed to be his will, if it is shown that it was written by the
testator's directions or that he recognised it as his will.

'Para 14.8, supra.



9.3

(cl) 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, p]_'O-
vided that his nonsexecution of it can be reasonably ascribed to some
cause other than the abandonment _of the testamentary intensions
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 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 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 en-
titled to make a privileged will."

14.22. It is unnecessary to discuss at length the contents of this section, Departure from
as the matters dealt with are mostly matters of detail. But it may be useful to English Law.
point out that the provision in sub-section (2) clause (.11) (under which an
oral privileged will becomes null at the expiration of one month after the
testator, being still alive, has ceased to be entitled to make a privileged will),
is one which, though not found in English law, is a salutary one. In fact, some
writers consider that even written privileged wills should cease to be valid one
year after the teistator has ceased to be entitled to make a privilegedwill.

'l4.23. It may be mentioned that if the provisions of the Act related to Changes required
privileged wills are to be extended to persons affected by calamity as 1'6COII1In§l1d-rin section 66 to

ed b us section 66 will also re uire conse uential chan es. WWI persons
Y ' q q g aﬁfected by cala-
Intty.

14.24. We have separately recommended' the insertion of a new section section 55(3) to be
to the effect that a person affected by accident, earthquake, ﬁre, ﬂood, or other amended.
similar calamity in circumstances wherein he has a 'reasonable apprehension of
immediate death, may also make a privileged will. This recommendation, if
accepted, will expand the scope of privileged wills. In consequence, section 66(2)
clauses (e), (f) and (g) should be slightly amended, so as to replace the words
"soldier, airman or mariner" by the words "the persons entitled to make a privileg-

ed will ."

CHAPTER 15

ATI'ESTATl0N, REVOCATION (INCLUDING EFFECTS OF SUBSEQUENT
EVENTS), ALTERATION AND REVIVAL OF WILLS. SECTIONS. 67--7_3.

1. Attestation.
15.1. The attestation, revocation (including effects of_ subsequent events), scope.
alteration and revival of wills are matters dealt with In sections 67 to 73--~

The rules comprised in section 67 to 73 could be broadly classiﬁed

as follows :--
(:1) effect of a benefit given by the will to an attesting witness on its
validity (section 67] or on competence to prove (section 68);

1See para 14.20. supra (recommendation to insert section 65A).



94

(b) ellect of marriage (section 69);

(c) revocation of unprivileged wills (sections 70-71)' and their revival
(sections 73);

(d) revocation of privileged wills (section 72).

_ 15.2. Section 67 deals with the effect of a gift given by a will to an attesting
witness or to his spouse. The rule enacted is that the mere fact that the beneﬁci-
ary is a person attesting the will (for a spouse of the attesting witness) does not
affect the validity of the attestation, but the bequest in favour of the person
attesting (or his or her spouse) is void. The same rule applies to a power of
appointment conferred by the will. -

Section 67-Request
to attesting witness.

15.3. This provision broadly corresponds to section 15 of the (English
Wills Act, 1837'----a provision itself derived from an earlier English statute.'

Section 15 oil the Wills Act, 1837 reads :--

"If any person shall attest the execution of any will to whom or to whose
wife or husband any beneﬁcial devise, legacy, estate interest, gift, at
appointment, of or affecting any real or personal estate (other than and
except charges and directions for the payment of any debt or debts), shall
be thereby given or made, such devise, legacy, estate, interest, gift or
appointment shall so far only asooncerns such persons attesting the execu-
tion of such will, or the wife or husband of such person, or any person
claiming under such person or wife or husband, be utterly null and void
and such person so attesting shall be admitted as a witness to prove the
execution of such will, or to prove the validity or invalidity thereof, not-
withstanding such devise, legacy, estate, interest, gift, or appointment
mentioned in such will."

English rule.

Exceptions cab 15.4. It should, however, be noted that in England, to this general rule,
mg out in Engy hcertain exceptions have been carved out by case law, and (on one particular
law by judicial deci- point) by statute.'

810113. -

position of spouse 15.5. As regards section 15 of the Wills Act of 1837 (which provides that

inEngland. a beneﬁcial gift to the wife or husband of an attesting witness shall also be void),
the English courts have sought to construe it as narrowly as possible. For
example, in one of the English cases' the testator had left property to a woman
beneﬁciary. She married one of the attesting witnesses after the execution of the
will, but before the testator's death. It was held that the gift to her remained
effective and was not avoided by section 15, since the policy of the section
required a consideration only of the position at the time of execution.

Emption in 15.6. The position in England in this respect as regards exceptions carved
English 1aw_ out judicially' has beeen stated' :--

Statements of me "13l4. Exceptions to general rule :--

g°s"'°" by Ha]S' .. Where by means of a parol trust a beneﬁcial interest is conferred upon an
my' attesting -witness who is, at the time of attestation, unaware of the secret trust
in his favour, the gift is valid. The marriage of a donee to an attesting witness

after attestation does not affect the validity of the gift. A beneﬁciary's interest

is not rendered void if it could not be predicted that he was a donee at the

time when the will was attested (or possibly at the time of the testator's

death)." . 'V. ,_ 
:;°'l';'nd ""55 in 15.7. As to the position where one of the witnesses to the will is to take
3 ' a beneﬁt under a secret trust, the English cases are not consistent. In an early'

'Section 15, Wills Act, (English) 1837.
'Wills Act, 1751 (English).
'Section 1, Wills Act, 1968, see para 15.9, infra.

'Thorpae v. Bestwick, (1881) 6 Q.B.D. 311. See Tiley, "Attesting Witness :Some remaining
p,mblgm:" (1968) 112 Sol. Jour. 994.

'See also section 1, \Vills Act, 1968.
"llalsbury, Laws of England, 3rd Edition, Vol. 39, page 870, paragraph 1317.
'Re Fleetwood. Sldgreaves v. Brewer, (1880) 15 Ch. D. 594.



95

English case of 1880 it was held that the beneﬁciary under the secret trust could
not take a gift under the will, but this was not followed in a comparatively more
recent case'. The later decision is more in keeping with the generally liberal
approach adopted in modern times. A beneﬁciary under a secret trust does not
take "under the will", and is not, therefore, aﬁected by section 15, Wills
Act, 1837.

15.8. The origin of the general rule is of interest. At common law, Origin of the

the general rule of evidence was that persons "interested" in the 9°"°'a' "'1"-
outcome of litigation were incompetent to testify, and the courts took
the view that persons taking any beneﬁt under a will were not, therefore, credible
witnesses as required by the Statute of Frauds. The effect was to render the whole
wiil invalid if at least one of the witnesses received a beneﬁt under the will.
The Wills Act, 1752 qualiﬁed the harshness of this View by providing that such
person should be credible witnesses, but that the gifts to such person were
void". Any creditor of the decased whose debt is charged by the will on any
real or personal property of the deceased is not prejudiced by attesting the will
(s. 16) and (s. 17) makes it permissible for an executor to be an attesting wit-
ness, since an interested person is competent to testify, the original reason
15 gone.

15.9. By the Wills Act, 1968" a further exception is provided for the wins Ac;,195s,
purposes of section 15 of the Wills Act, 1837.

Section, 1 Wills Act, 1968 provides as follows :--

"1 (1) For the purpose of section 15 of the Wills Act 1837 (avoidance of
gifts to attesting witnesses and their spouses) the attestation of a will by a
person to whom or to whose spouse there is given or made any such dis-
position as is described in that section shall be disregarded if the will is duly
executed without his attestation and without that of any other such person.

(2) This section applies to the will of any person dying after the passing
of this Act, whether executed before or after the passing of this Act."

15.10. It may be noted that USA section 2----505 of the Uniform Probate Provision in Uni_
Code eliminates the presence and in competency requirements, It provides as form probate code,

under :
 2------505. (who may witness).

(a) Any person generally compeent to be a witness may act as a
witness to a will.

(b) No will or any provision thereof is invalid because the will is
signed by an interested witness." '

15.11. This naturally raises the question----why is section 67 needed at all? Reason of . we
The original reason of the prohibition in section 67 is incompetence to give P1-ohjbjgjgin,
evidence on the ground of interest. Interest as such, has, however, long since
ceased to be a disqualiﬁcation in regard to giving evidence, but the "suspicion or
rather the charge of possible collusion with beneﬁt," still survives,

15.12. The extension of the above 'prohibition to the wife seems to be Um, of ;,,,,,,,,s'
based on the assumed unity of interest between husband and wife.'

15.13. It remains now to consider the propriety of the present provision. Criticism of pm
While one may agree that the fact that a person may 'derive some beneﬁt under a Sent .,,,o,,.i5;on in
will is a ground for scrutinising the validity of the will with more than ordinary India.
care, a rigid rule virtually prohibiting the attesting witnesses from taking under

'Re Young, Young V. Young, (1951) Ch. 344; (1950) All E.R. 1245. I250, 125].

"Miller, Machinery of Succession (£977), page 145, i'.n. 5.

3Section 1, Wills Act, 1968.

'Section 2-505, Uniform Probate Ccd e, Miller, Machinery of Succession (1977) page 146.
'Adrninisrraror General v. Lazar Steuben, (1882) I.L.R. 4 Madras 244, 246.
'Administrator General v. Lazar Stenfion, (1882) I.L.R. 4 Madras 244, 246.



96

the will seems to be rather harsh. The hardship would be more pronounced in
cases where all the attesting witnesses available with reasonable effort are
beneﬁciaries under the will.

Judicial dgcisions, 15.14. Realising the harshness of this provision and of the corresponding
provision in section 19 of the Oudh Talukdars Act, 1869, courts' in India have
been astute to construe the signature of the beneﬁciary as a signature made not in
the capacity of an attesting witness, but in some other capacity. That the statutory
rule of law may be a source of hardship in a particular case' has not gone un-
noticed judicially.

present provision 15.15. The present provision in India is thus harsh and is wrong in principle.

wrong in principle. The position, therefore, seems to be in need of reform. We have already referred to
the reform effected on the subject in England.' To improve upon the present law
in India we have the following alternatives before us :--

(a) (i) It can be provided that a witness to a will may still inherit under the
will, if the will has also been witnessed by at least two other disinterest-
ed witnesses.

(ii) Alongwith the above amendment, it should be provided that the section
does not apply in certain exceptional cases. We have in mind those
special cases for which English law makes an exception.'

(b) In the alternative, the section could be modiﬁed by reversing that part
thereof which invalidates the bequest.

Perhaps, alternative (b) may appear to be too drastic. But alternative (a)
would certainly be fair and unobjectionable.

On a careful consideration, we favour the adoption of alternative (a)
mentioned above.

15.16. Accordingly, we recommend that section 67 should be amended by

Am°"dm°m °f 5"" inserting the following exception in the section before the Explanation :--

tion 67 recommen-
ded. , _
'Exception.

For the purposes of this section, the attestation of a will by a person to
whom or to whose spouse there is given any such beneﬁt as is described in
this section shall be disrcgarcled--- '

(a) where the means of an oral trust, a beneﬁcial interest is conferred upon
an attesting witness who at the time of attestation is unaware of the
secret trust in his favour; or

(b) where the marriage to an attesting witness of a person taking a bene-
ﬁcial interest under the will takes place after the attestation; or

(c) where at the time of the attestation it could not be predicted that the
atte-sting witness was a person taking a beneﬁcial interest under the
will; or

(d) where the will has been witnessed by not less than two other witnesses,
to whom no such beneﬁt as is described in this section is given by the
will." .

II. Executor as Witness.

15.17. This takes us to section 68. According to that section, no person,

Section 68-Pr00f by reason of interest in or of his being an executor if, a will shall be dis-
byexecutor. I

1.S'hi'am Sunder V. Jagtm Nath, A.I.R. 1926 Oudh 465, 467, conﬁrmed by the Privy Council in
32 Calcutta Weekly Notes 305.

'Admit Gen. v. Lazer, (1882) I.L.R. 4 Mad. 244, 246.
'Paras 15 .4 to 15.8, supra.
'Para 15 .6. supra.



97

qualified as a witness to prove the execution of the will or to prove the validity
or invalidity thereof.

The Section needs no change.
III. Revocation by subsequent events: Section 69.

15.18. Events subsequent to the execution of a will are sometimes regarded swim 5g_R.v°.
as affecting the subsistance of the will; the most important of such events is cation bymarriasa
marriage. Section 69 provides that every will shall be revoked by the marriage
of the maker, except in the special case of a will made in exercise of a power of
appointment. The provision may appear to be simple enough, but a few points-----
some of principle, others of detail---need to be noticed in this connection,

In the ﬁrst place, there seems to be need for a saving applicable to wills
made in contemplation of marriage, and so expressed. Where a will is expressed
to be made in contemplation of marriage, it should not stand revoked by the
solemnisation of the contemplated marriage. The object of the rule providing
for revocation is to protect the interests of the new family' of the testator, against
accidental survival of the old will. Where there is a deliberate decision that the
will shall survive the marriage, the law need not upset that intention.

Secondly, where a marriage is not valid, there should be no revocation of
the will by virtue of the marriage.

Thirdly, "marriage" in this context should include a second (Or subsequent)
marriage, and need not be conﬁned to the ﬁrst marriage.

Indian commentaries on the Succession Act usually make a statement of
the position as to some of the points brought out above, without, however,
expressing any opinion as to the desirability of amending the section on one or
more of these points. *

15.19. There can hardly be any doubt that if a will is expressly made in con- Need to pmvide

temptation of .marriage, the subsequent marriage should not amount to :1 against automatic ,

revocation of that will. This principle should ﬁnd a place in the Act, and should 1'¢V0°&"9ﬂ 0' will
be elaborated as abovea. An express provision regarding mutual wills would also °'""a"'"3°'
be justiﬁed, for obvious reasons.

15.19A. Provision has been made in England by the Administration of Mafﬁagg and di.
Justice Act, 1982 for the revocation of a will by marriage, except in certain vqrce = cffect 0!!
cases. This has been achieved by revising section 18 of the Wills Act, 1837. Fgig is {_§,°°]';tnd'°'
This implements the recommendations of the Law Reform Committee' on the 8 '
subject.

As to the effect of dissolution or annuhnent of marriage on wills, there
was disagreement among the members of the Law Reform Committee which
considered the subject. Now, section 18A, inserted in the Wills Act, 1837 by the
Administration: of Iitstice Act, 1982. makes an appropriate provision under
which (except where a contrary intention appears in the will), divorce or
annulment of a marriage or recognition that a marriage is voidable has the
following effects on the wills of the former spouses :--

(i) any appointment of a former spouse as an executor or executris/trustee
is ineffective and a grant of letters of administration with the will
annxed may be necessary (section l8A(1));

(ii) any devise or bequest to the former spouse will lapse and the relevant
property will fall into residue or (if there is no residuary bequest) pass
on intestacy [section l8A( 1)], unless it is a life interest, as to which
see (iii) below;

Qt,-3 (1951) 67 LQESST.

'Cf. Mitchell, "l{evocatiori lo>fWTes.tamentaryWAppointments  Mart

"Paragraph 15. 18, supra.

'Law Reform Committee, 22nd Report (Making and Revocation of Wills) 1980 cmd. 7902-
paragraphs 3.10, 3.11 and 3.18.



98

(iii) any interest in remainder (vested or contingent) dependent on the
termination of a spouse's life interest will be acclerated by the lapse
'R p of the life interest under (ii) above [section 18A(3)].
%:."f:'~' I
The former spouse, affected by (ii) or (iii) above, may still make a claim
for "reasonable ﬁnancial provision" under the Inheritance (Provision for Family
and Dependents) Act, 1975 [section l8A(2)].

Mm,age__mea,,,,,g 15.20. According to judicial interpretation, "marriage" means a valid'

of, marriage. That is the ordinary legal understanding of the expression and need not
be codiﬁed. The same comment applies to a second marriage, which seems to be
included within 'marriage'.

Cong," of laws . 15.21. Sometimes. an interesting question of conﬂict of laws concerned with
concerned with_sub- the subsistence of a will arise under such a provision as is contained in section 69.
slstence Of a W111 In an English case,' a French woman, while residing in England, executed in
England a will which was valid according to French law. Subsequently, she
married a French man, but continued to reside in England till her death. It was
held that on her marriage, the woman acquired the domicile of her husband
which was French and the will was governed by French law and was not revoked

by her nlcrriczgc, since the French law did not provide for automatic revocation"

of the will on marriage.

Law of dam-we 15.22. That the revocation of a will on marriage is governed by the law of

iIapp1icab;e_ domicile is recognised in another English case.' In that case, a foreigner had

made a will which was valid according to the law of his native country, he after-
wards married in accordance with the law of England, having at that time an
English domicile. It was held that the marriage revoked the will.' There is,
however, one 'aspect of the English rule (as laid down in the judicial decisions)
which requires some comment. That marriage revokes a will is regarded by English
case law as a part of the domain of matrimonial law, The result is that the
positive rule of the English law on the subject applies only (and always) if the
spouses have an English domicile at the time of marriage.' Since the validity or
the nullity of will does not operate until the te_stator dies (i.e. until the marriage
itself comes to an end), the English theory has been regarded by_ some authors
as inappropriate.' Although Cheshire' would seem to approve of the rule as
adopted in England, there is much to be said for the opposite view.

In our opinion, while revising the section, it is desirable to make a clear
statement of the position as to the law that will apply for determining the effect
of marriage as revoking a will. As to the content of the provision in that regard,
we are of the view that it should be the law which was the law of the domicile
of the testator at the time of death that should govern the matter. This would
be more practicable, for the reasons stated above.

9

ikwommmdation 15.23. In the light of the above discussion, we recommend that section 69
to revise section should be revised as under :--
69.

Revised section 69.

cvocaggog of Wm 69. (1) Every will, not being a mutual, will, shall be revoked by the
' testator's mar- marriage of the maker, except a will made in exercise of a power of appoint-
38°- ment, 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.

1Lourte.'an v. Lousrelrm. 81 Law Times 459, cited by Paruck, Succession Act (1966), page
121.

'Re Harrin, (1900) Probate 211 (C.A.).

'Cf Qykes & Prytes, Australian Privatetlntcrnational Law (X979), page 461.
'Wolff, Private International Law (1950), page 594.

'Wolff, Private International Law (1950), page 594.

'Cheshire, Private International Law (1970), page 602.



99

ExpIanation.--Where a man is invested with power to determine the disposi-
tion of property of which he 15 not the owner, he 1S said to have power to

appoint such property.

Exception.--A will expressed to be made in contemplation of a marriage or
indicating an intention that it was so made shall not be revoked by the
solemnisation of the marriage contemplated; and such an intention may be
inferred from any portion of the will showing that marriage was thought Of.

(2 ) Where the law of domicile of the maker of the will at the time of death
has different rule that rule shall prevail, and the proyisions Of sub-section (1),
shall not apply to the extent to which there is inconsistency between the two.

IV. Effect of Divorce.

15.24. We may, at this stage, take up the question of the effect of divorce DM,m_

on a will. While, by section 69, a will is deemed to be revoked by the marriage of
the maker, there is no similar provision in relation to divorce of the maker of
the will.' The matter seems to require examination, particularly because divorce
is now much more common than it was before. Marriage is regarded as relevant
to the continued subsistence of the will, in as much as it introduces in the life of
a man or woman a new person who is going to be an equal partner in life. On
the same logic,divorce should be regarded as equally relevant, because it removes
from his or her life, a person who was, so far anequal partner in life. Annul-
ment of marriage also stands on a similar footing for this partiular purpose.

15.25. Under the present law, of course, the general rule is that the sub- P H
sequent divorce of a testator will have no effect on his will, unles! he has made rm" aw'
an express provision for that contingency. Recently, however, the lack of any rules
in this area has been criticised in many countries.' '

In England, there is no provision for the automatic revocation on a sub-
sequent marriage. So, it is only if the testator either marries' again, or has made
the gifts in his will conditional on widowhood, that the former wife is barred from
taking her interest under the will. The question is : Should the law automatically
revoke gifts to former spouses on the assumption that the majority of testators
would wish to disentitle them, or should the law remain as it is and leave it to
testators to expressly revoke such testamentary disposition ?

15.26. There certainly seems to be plenty of evidence that in the majority
of cases the law would best serve the interests of testators by revoking provisions Ca" f°' "°f°"'3 -
to former spouses.' Take, for example, the case of a testator who has been divorced
from his former wife twenty years earlier at the time of his death. If he has not
altered his will, the whole estate would (on his death) pass to the former wife,
though this could not be his intention.

15.27. The present law unrealistically assumes that a divorced testator Assam "on 'be t
would still wish to beneﬁt his ex--spouse, no matter how long it is since they gcsmofvs ;,,¢,m5¢,:_:
separated. This would surely not be the testator's intention in the majority of
cases where, in the emotional stress of a divorce, the will is often forgotten. In
the absence of a conscious testamentary disposition, and bearing in mind the
increase in the rate of divorce. and the unavoidable emotional turmoil of
such proceedings, the law should step in to reﬂect more adequately, the wishes of
the vast majority of testators. The present assumption should, therefore, be
reversed and some form of statutory revocation of testamentary gifts on divorce
should be provided.

There will, of course, be exception, and provisions could be made for these
by permitting evidence of, say a later memorandum or codicil conﬁrming the
will or even of extrinsic evidence of surrounding circumstances. But in most
cases tcstators would not wish to beneﬁt ex-spouses once they are divorced.

'As to birth of a son after execution of a will, see para 15.31, infra.
3G.M. Bates, "Revocation of Wills on Divorce" (7th June X979) 129 N.LJ. 556, 557.
'G.M. Bates, "Revocation of Wills" (7 June, 1979) 129 N.L.J. 556, 557.



100

!A"¢m8tifV¢S 096!' 15.28. Given that there is a need for law reform in this area, then the next
°' '° °""' question to consider is, how this should be done.

Alwfnatives for l5.28A. There we basically three ways in which reform of the law might be
"{°"°' effected, all having, in practice, diﬂerent consequences.'

(1) Providing for a11 automatic revocation of a will or divorce, in the same
way that a will is generally revoked on marriage.

I This solution, however, goes too far, [since the effect would be to revoke
not only all dispositions in favour of an ex-spouse, but also speciﬁc gifts
to all other beneﬁciaries. Such a result would probably not reﬂcct the testat01"5
true intentions. Legacies to children, friends or charities, would probably be
intended to survive the divorce, and to strike down the whole will would probably
cause more hardship and injustice than the present law.

(2) Provision that _where a testator has subsequently divorced his wife,
then only gifts to her alone in the will shall be void.

The difliculty with this alternative is that problems would arise where the
gift to the wife contains an alternative provision in case the wife predeceases the
testator. The alternative substitutionary gift would also fail, and the subject matter
would then be distributed as on intestacy.

Further, such a provision can deal only with beneﬁcial interests. There is
no reason to belive that a testator would wish to retain an ex-wife, as say, execu-
tor or trustee, any more than as a deserving beneﬁciary.

This solution can be supported only if it is madeclear that the revocation
of gifts to an ex-spouse will not defeat substitutionary gifts.

(3) Provision that where a testator is subsequently divorced, his will shall
be read as if his former spouse had pre-deceased him. This would avoid the
difficulties foreseen in the ﬁrst two alternatives. No doubt, if the ex-spouse is
also named as an executor, this solution might interfere with the due administra-
tion of the estate. But an alternative administrator can be sought.

It may be that such a solution could adversely affect (i) secret trusts accepted
by the wife; (ii) devises to beneﬁciaries given pur autre vie, where the other
life is that of the divorced spouse; and (iii) alternative provisions in the will to
cover a situation where the wife predeceases the testat0r. Other problems might
arise in the rule of perpetuities, where the divorced spouse is a measuring wife,
and with regard to the acceleration of gifts.

However, it might create less diﬁiculties than other solutions. It may, there-
fore, be preferred.

, 15.29. In the light of the above discussiOn, we recommend that the Succes-
:,°§°n?e';""gc'3°:6C_sion Act should be amended to provide that where after a will the marriage of
mm 59A_ the testator is dissolved or his (or her) marriage has been annulled, the will should

for all purposes, be read as if the former spouse (that is to say, the spouse whose
marriage is dissolved or annulled) had died before the testator, unless the will
expressly provides otherwise. A new section should be added to carry out the

above subject."

15.30. In this connection, we may refer to the provision in the Uniform

Provision in Uni- 3
form Probate Code. Pmbme Code'

"S.2-508. Revocation by Divorce : No Revocation by other Changes of Circum-
stances.

1G.M. Bates, "Revocation of Wills" (7th June ,l979) 129 New, L3. 556, 557.
'Section 69A to be add ed. See para 15.32, infra.

'Section 2-508, Uniform Probate Code reproduced in Martindale Hubble, Law Directory:
Vol. 7, page 430. '



101

If, after executing a will, the testator is divorced or his marriage annulled,
the divorce or annulment revokes any disposition or appointment of property
made by the will to the former spouse, any provision conferring a general or
special power of appointment on the former spouse, and any nomination of
the former spouse as executor, trustee, conservator, or guardian, unless the will
expressly provides otherwise. Property prevented from passing to a former spouse
because of revocation by divorce or annulment passes as if the former spouse failed
to survive the descendant, and other provisions conferring some power or oflice
on the former spouse are interpreted as if the spouse faild to survive the desendant.
If provisions are revoked solely by this section, they are revived by testator's
remarriage to the former 'spouse. For purposes of this section, divorce or annul-
ment means any divorce Or annulment which would exclude the ' spouse as a
surviving spouse within the meaning of Section 2---802(b). A decree of separation
which does ot terminate the status of husband and wife is not a divorce for
purpose of this section. No change of circumstances other than as described in
this sction shall revoke a will."

15.31. It may also be mentioned' that in England, the problem was Move for mom

considered by the Royal Commission on Marriage and Divorce,' which thought in England-

that a substantial proportion of those spouses who have made a will in favour of

the other spouse would not wish that spouse to receive a beneﬁt if that marriage

was subsequently dissolved. A testator may be unable to alter his will after divorce,

because he lacks mental capacity. The Royal Commission, therefore, considered

it desirable that, on the death of a person whose marriage has been dissolved,

his former spouse should not take any beneﬁt under his will unless it is clear

that he desires her to take a beneﬁt notwithstanding the divorce.

They suggested two ways in which this result could be achieved. It could either
be provided that divorce revokes a will just as marriage revokes a will, so that
the testator (unless he' makes another will)? would be regarded as 'dying intestate.
The objection to this approach was that it revoked a will whether or not it confer-red
any beneﬁt on the former wife, and it might defeat gifts to another person. They
preferred the second possibility, which is similar to the provision in the Uniform
Probate Code.' This would invalidate, on divorce or nullity, a bequest to. or
appointment in favour of the former spouse, but would leave the will to take effect
in. all other aspects. No action has been taken in England on these prbposals,
but some Commonwealth jurisdictions have introduced, or are in the course of
introducing, provisions to deal with the problem.'

15.32. Having given our careful consideration to the matter, we are of the Rccommendmon
view that, for reasons already stated,' there is need for inserting a speciﬁc provi- .0 rm" section
sion as to the effect of divorce on wills. We recommend the insertion of a new 69A.

, section (section 69A) somewhat on the following lines 2----

"69A. (1) Where, after making a will, the marriage of the testator is dis-
solved or has been annulled, the will shall, for all purposes be read as if
the former spouse (that is to say, the spouse whose marriage is dissolved
or annulled) had died before the testator, unless the will expressly provides
Otherwise.

(2) The provisions' of this section shall, unless the will expressly provides

Otherwise, operate--
(a) to revoke all dispositions of beneﬁcial interest in favour of the
former spouse.
(b) to revoke provisions conferring a general or special power of
appointment on the former spouse.

'Miller, Machinery of Succession (1977), page 183.
'The Modern Commission (1953) Command, 0678, paras l_187-1l9l.

O25Section 2-508, Uniform Probate Code. See Martindale Hubbell, Law Directory, Vol. 7, pages
43 , 4303.

'New Zealand and Queensland.
'Paras 15.24 to 15.28, supra.



102

(c) to revoke provisions naming the former spouse as executor or
trustee' and

(d) to invalidate the appointment of the former spouse to act as trustee
for a secret trust, established before the testatofs divorce or before
annulment of the marriage, as the case may be, so however as not to
affect the subsistance of the trust,

(3) The provisions of this section apply to all wills of persons dying after
the commencement of the Indian Succession (Amendment) Act, 19 . . . . . .

VI. Act of'Rev0cali0n by Testator.

section 70' l.¢v0Ca_ 15.33. Circumstances in which a will can be revoked by an act of the. testator
non! of unpfivilcgcd are dealt with in section 70, which reads---
Wils.

"70. 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 of revoking the same."

swim 70_ Recon 15.34. If, as rcoinmended by us, the case of d_ivorce_or annulment is added'
mmcndmon for in the Act, corisequential change will be required in section 70 also, by adding,
change regarding after the words "marriage", the words "or dissolution or annulment of marriage."
divorce. We recommend accordingly.

_ 15.35. A question often debated in the context of revocation of wills is
ml' t'.l';: f)'t'."c'l'g"f'lfthis--W'here a will has been executed and registered, but is not found at the
whethc, p,¢sump_- time of the testator's death, can a presumption of revocation of the will be
tion of divorce can drawn? The answer depends on the facts of each case. Such a presumption is

b¢d1'3Wn- permissible in England.'-' In India, however, it has to be drawn cautiously.'

The law on the subject in India needs no amendment.

15.36. Another interesting question concerned with the subsequent birth of

Section 70A (N¢W)- a son to a Hindu testator also requires to be considered. Under the present" law,
B"'"'°f5°"' the fact that a son is born to a Hindu testator who has, by will, disposed of his
ancestral property does not, in itself, amount to revocation' of the will. Having

regtaril to Indian conditions, and, in particular to the fact that the power of dis-

- » _. . , . position of ancestral property has now been enlarged,' it is a matter for considera-

tion whether this should continue to be the law.

The question is not whether, after the birth of the son, the will remains opera-
tive as regards ancestral property. The will cannot be operative to defeat the rights
of the son in the ancestral property as at the death of the testator. The son on birth,
acquires an interest in that property.' The question to be considered is, whether
the will as a testamentary disposition should retain its operation in such circum-
stances, unless it contains an express provivsion indicating a contrary intention.

; 15_37. Under the present law; the will remains operative in the circumstances
'Present law and mentioned above, so that at least as regards self-acquired property, it takes effect.

'*4 f°' °h3"8°- If the son born after the will dies before the tqstator's death, then it would take
' effect as regards ancestral property also. In favour of changing this position by

1This amendment is in addition to the amendment of section 69 on certain points, already
recommended.

 'Sec recommendation to insert section 69A, para 15.32, supra.
'Halt-bury, 3rd Ed. Vol. 39, page 897, para 1366 and foot-note (q).
'Allen v. Morrison, (1900) AC. 604 (P.C.).
'Durga Prasatl v. Deb! Charan (1979) 1 S.C.J. 61, (1st January, 1979).
'Bad! v. Venkatasami Natdu, (1913) I.L.R. 38 Mad. 369, 373, following Subba Reddi v. Darci-
swaml, (1906) I.L.R. 30 Mad. 629 and Shib Savitr! v. Collector ofMeerut. (1906) I.L.R. 29 All. 82
'Section 30, Hindu Succession Act, 1956. '
'Bodi V. Venkatnsam! Naidn, (1913) I.I..R. 38 Mad. 369, 373.



l03

amendment, it could be stated that the birth of a son in such cases----<:ouplcd
with the fact that the testamentary d)SpOsition of coparcenary property becomes
void--is an important factor which may ordinarily be presumed to result in a
change of intention on the part of the testator.

--- Where such a situation arises, dispositions made in the will may, in_ the
majority of cases, be regarded as obsolete, that is to say, they would no longer
be representing the testator's present wishes. No doubt, the testator would, in
due course, take account of the subsequent event and alter the will. But what is
to happen if he does not expressly do so, or if he delays doing so? There seems
tobe need for a speciﬁc provision to deal with the problem.

15.38. Having taken all aspects into consideration we recommend that the Recommendation

following section should be inserted as section 70A :-- to I;(s):rt new sec-
IIOII .

"70A. Where, after the execution of the will by a Hindu testator who has, '
in the will, purported to deal with co--parcenary property, a son is born to
that testator, -the will shall stand revoked as regards all property, itnlesi
the will contains an express provision indicating a contrary iJ1tenti0n"

vn. Alteration. e
15.39. This takes us to section 71, dealing with the effect of obliteration, Section 71 _Oblitcra_-
intcrlineation or alteration in unprivileged wills. The section reads as under :--:'i'l';'gc'§'fv-ml: ""P"'

"7l. No obliteration, intelineation or other alteration made in any un-
privileged 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 undiscernible, unless such alteration has been executed in like manner as
hereinbefore is required for the execution of the will :

Provided that the will, as so altered, shall be deemed to be duly executed if
the signature of the testator and the subscription of the witnesses is made
in the margin or in 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 wi-.1." ' '

The section is based on section 21 of the (English) Wills Act, 1837. It
does not appear to need any change.

VIII. Revocation of Privileged Wills.
15,40. As to the revocation of a privileged will or codicil, section 72 contains

' ' ' ' ' ' -___ Section 72- Revoca-
certain provisions. In the main paragraph, it provides as under . gig: wﬁgs, Hm
I .

"72. A privileged will or codicil may be revoked by the testator by an un-
privileged will or codicil, or by any act of expressing an intention to revoke
it and accompanied by such formalities as would be sufficient to give vali-
dity 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."

The Explanation to the section reads as follows :

"Explanation. In order to constitute the revocation of a privileged will or
codicil by an act accompanied by such formalities as would be sufficient to
give validity to a privileged will it is not necessary that the testator should
at the time of doing that act be im a situation which entitles him to make a
privileged will". '

. 15.41. The structure of the section is somewhat complicated and is capable Recommendation
of considerable improvement. It may be useful to simplify the main paragraph *0 W93" 5°°"°"
by splitting it up into clauses. We recommend that the section should be re- 7 '
structured on the following lines:



104

Revised section 72.
"72. A privileged will or codiel may be recoked by the testator--

(a) by an unprivileged will or codicil, or

(b) 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

(c) by the burning, tearing or othedwisd 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 as at present.)

IX. Rectification.

Rectiﬁcation of 15.41A. It may be mentioned that in England, on the subject of

Wills zreccmrerorm rectiﬁcation of wills, section 20 of the Administration of Justice Act, 1982

in EHel&nd- has been enacted in accordance with the recommendations of the Law Reform
Committee'. Leaving aside minor matters of detail, the important part is contained
in sub-section (1) and (2) of section 20, quoted below"'* ;

"20. (1) If a court is satisﬁed that a will is so expressed that it fails to
carry out the tcstator's intentions, in consequence---

(a) of a clerical error; or

lb) of a failure to understand his intentions, it may order that the
will shall be rectified so as to carry out his intentions,

(2) An application for an order under this section shall not, except with
the permission of the court, be made after the end of the period of six
months from the date on which representation with respect to the estate of
the deceased is ﬁrst taken out."

X. Revival of will.

section_7_3--Reviva1 15.42. The revival of an unprivileged will forms the subject-matter of
''f °"P"'"'°3°d """"- section 73 of the Succession Act, which is in these terms :

"73. (1) No unprivileged will or codicil, nor any part thereof, which has
been revoked in any manner, shall be revived otherwise than by the
re-excution thereof, or by a codicil executed in manner hereinbefore required
and showing an. intention to review the same.

(2) When any will or codicil, which has been partly revoked and after,
wards 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."

The section needs no amendment.

CHAPTER 16
CONSTRUCTION OF WILLS: SECTIONS 74 T0 111

I. Introduction

Scope of Chapter 16.1. Detailed rules for the construction of wills are contained in sections
and 05951100 Of thv 74--111. The scheme of these sections will be better understood if certain general
5;?" °f °°'"""°' aspects are borne in mind. .

 'Law Reform Committee, Report on the Interpretation of Wills (1973), cmd. 5301.
L 'Section 20(1) and 20(2), Administration of Justice Act, 1982 (Eng.).

7



105

in the construction of documents recording the voluntary acts of parties to
a legal transaction, three elements generally play an important part. These are----
the intention of the author (or authors) of the instrument, the terms of the
instrument as recording that intention, and the external reality to which that
document is intended to apply. Since' a document is supposed to record the in-
tention of its author and to operate on persons or facts outside the instrument
(the external reality), the relevance of all these three is obvious. The document
is the medium through which the author speaks, so as to affect the external reality.

16.2. So long as the three are in harmony with one another, no question of mom,
construction of the document would, in general, arise. The document speaks for '
itself, and if it is faithful to the intentions of its author, as well as to the external
reality, etIect can be easily given to it---assuming, of course, that no special rules
of law or public policy have been infringed by its terms. But where harmony of
the nature referred to above is wanting, a court of law concerned with the docu-
ment is faced with the problem--the problem of seeking that harmony, In its
efforts to do so, the three elements mentioned above play a part. But the relative
importance of each is not the same. In general, the law gives the pride of place
to the ﬁrst element--~intentions of the author, if they can be ascertained with
reasonable certainty. The second element----the text of the document----may, if
necessary, be moderated in the light of the result of such search by the Court
of the intentions of the testator.

Similarly, occasion may arise for moderating that element, if the external
reality so demands. This, then, is the essence of "construction", namely, to
ascertain the intention of an author and to moderate everything else according
to that intention where the intention can be ascertained with reasonable certainty.
The Court creates a "construct" not entirely of its own, but the result of its
search for the intentions of the author.

16.3. The general rule is that a document is to be construed according Genera] me,
to its ordinary meaning, since the court is to give effect to what the author of
the document has expressed in it.

16.4. Language, however, has its limitations. It is a system of symbols. Imperfections in
No draftsman, whether of legislation or of private documents, can rise above herein in a las-
the imperfections inherent in language as a medium of thought. In order to M3'-
prevent the will of the testator from failing by reason of such imperfections, the
legislature has considered it proper to insert certain rules for the construction of
wills, to be found in sections 74--11l.

The thirty-seven sections relating to the construction of wills may, at the ﬁrst
sight, appear to be heterogeneous in character, but a common thread can be dis-
cerned as running through most of them, namely, that the intention of the testator
is paramount and that all reasonable eﬂforts should be made to ascertain that
intention and to give it due effect. It is this principle which ﬁnds expression in
the very ﬁrst section in the Chapter--section 74--which 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".
It is, again on this principle that section 75 imposes on the 'court the duty of
making inquiries to determine questions as to the Ob_]CCt or SUOJCCI of the will.

Again, it is on this principle that section 76(1) provides that 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.

The speciﬁc provisions as to the supplying of omissions in wills (section 77),
the rejection of erroneous particulars in a description of the object (section. 78),
the prohibition against rejecting an erroneous words which can be given effect
to (section 79), and the admission of extrinsic evidence in case of latent' ambi-
guit-ies,(section 80), are all expressive of the legislative policy referred to above, .
and make it clear that what matters is the intention of the testator, which must
not be allowed to be thwarted by this or that trivial defect in the expression of that

intention.

'Misprinted as 'patent' in the marginal note to section 80.



Legislative Policy
of giving effect
to the will.
Grouping of the
rules.

Extrinsic evidence
in England: re-
cent reform.

106

It is, ﬁnally, for this reason that under section 83 words may be understood
in a restricted or wider sense, where it can be collected from the will that the
testator meant to use them in that sense.

16.4. Since the legislative policy is that effect is to be given to the will, sections
84, 85, 87 and 88 contain detailed rules intended to implement that policy. Of
two possible constructions of a clause, that which gives some effect to the clause
is preferred (section 84); no part of the will is to be rejected as destitute of
meaning, if a reasonable construction can be placed upon it (section 85),

Where effect cannot be given to the testator's intention to the full extent,
effect is to be given to it as far as possible (section 87). Of two or more inconsis-
tent clauses in a will, the last prevails (section 88).

It is only where the will or _bequest is not expressive of any definite intention
that is void for uncertainty (section 89).

All this is, in fact, faithful to the very deﬁnition of "will",' as given in
the Act : a "will" means the legal declaration of the intentions of testator with
respect to his property which he desires to be carried into effect after his death.

Another principle, now well established, is that a will speaks from the date
of death of the testator (sections 104 and 105.-111).

Rules for construing particular kinds of bequests are also needed, either
to solve an apparent internal inconsistency in testamentary dispositions (section

101) or in order to work out the will in the light of subsequentevents or for.

other reasons, Although such fastidiousness on the part of the legislature may
appear to be productive of complexity, in practice it leads to smoothness of
working.

16.5. The rules in the Chapter fall under the following groups :

(a) Language of wills, section 74.

(b) Inquiries by the court, section 75.

(C)

(d)

Misdescriptions, deﬁciencies and uncertainties, sections 74----89.

Rules implementing the principle that will speaks from the date of
death of the testator; sections 90, 104 and 105-111.

Rules based on the principle that the will extends to all property over
which the testator has a disposing power--section 95.

(6)
(f)

Rules for construing a power of appointment conferred by a will----sec-
tion 92.

Rules concerned with the extent of interest intended to be conferred
by a will----sections 91 to 95. '

(g)

(h) Bequest in the alternative----section 96.
(i)

(1')

Bequest to a class of persons-----section 93 and also section 111.

Construction of certain terms indicative of relationship : sections 99-
100. «

(k) Two bequests to the same person--section 101.
(1) '

(m) Vesting of legacies given in general terms--Section 104.

Residuary legacies----sections 102-103.

(11) Lapse of legacies----sections 105-111.

l6.5A. In England Section 21 of the Administration of Justice Act, 1982,
implementingthe recommendations of the Law Reform Committee," provides, in
eﬁect, for the admission of extrinsic evidence (including evidence of the intention

'Section 2(h).
'Law Reform Committee, Report on the Interpretation of Wills (1973), cmd. 5301.



107

of the testator) to assist in the interpretation of wills. This section applies to a
will in the following cases enumerated in section 21(1) :----

"(a) in so far as any part of it is meaningless;

(b) in so far as the language used in any part of it is ambiguous on the
face of it;

(e) in so far as evidence, other than evidence of the testator's intention,
shows that the language used in any part of it is ambiguous in the
light of surrounding circumstaiices."

After these introductory observations, we proceed to a consideration of the

sections proper. '

ll. Ascertaing the intention

16.6. Section 74 makes it clear that it is not necessary that any technical Section 74
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.'

No change is necessary in the section.

16.7. Section 75 provides that for the purpose of determining questions as Section 75--;In
to what person or what property is denoted by any words used in a will, a Court quiries by 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 (ris-
position, the circumstances of the testator and of his family, and into every fact
a knowledge of which may coiiduce to the right application of the words which

the testator has used.

The section needs no change.

Ill. Mistake, Misdescriptions and oniissions--External reality

16.8. One of the great problems of the construction of documents is that Section 78---erro-
of applying its provisions to external reality. The problem mainly arises where 116005 particulars.
there is disharmony between the terms of the document and the external reality.

In such cases, if the intention of the author of the document can be gathered,
then defects in the expression of that intention are permitted by the law to be

rectiﬁed.

16.9. Erroneous particulars in the description of the subject of bequest do section 75__miSn0_'~
not, therefore, matter in themselves. Since the policy of-the law is to give effect rner or misdescrip-
to the substance of the matter, it permits the court to disregard errors, omissions "°"-
and misdescriptions in a Wlll.

An error in the name or description is dealt with by section 76, in these
terms 2

"76 (1) Where the words used in a will to designate or describe ti legatee
or a class of legatecs sufficiently show what is meant, an error in the name
of description shall not prevent the legacy from taking effect.

(2) 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".

The section needs no change.

n of material words in a 'vill~-that Section 77»~0mis.
5 SIOII 0f_ material-
words in a will.

16.10. Section 77 concerns the omissio
is to say, words material to the full expression of the will, The section provide

that the context may supply words so omitted. The section is rather widely
expressed. It does not, however, apply where, in regard to material particulars,
there is a blank in the will because, in such a case, the bequest would be void for
uncertainty?

lln quoting or summarising the gist of some of the sections, ilustrations have been omitted for
brevity.

'Section 81, Illustrations (ii) and (iii).

85~I;ftD)l44M(fI.l&CI---8



108

The section needs no change.

Secti9n_ 78--Mis- 16.11. Section 78 provides that if the thing which the testator intended to
'i)°5°"P"':1"dWh°" '°.bequeath can be sulliciciitly identified from the description of it given in the will,
° mg" C ' 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. This is on the pinciple
(already explained)' that where there is disharmony between the text of a "docu-
ment and the external reality and the intention of the author of the document can
be gathered with some reasonable certaiiity. the disharmony can be rectified, so
as to give effect to the intention rather than to the fault in the description.

Section 79--descrip- 16.12. While, as stated above. section 78 pemits a rejection of parts of the
tion applicable in description where some parts do not apply. there are limits to such a rejection.
a"r°5P€°'5- Section 79 in this regard. provides as follows :--

"79. If a will mentions several circumstances as desci'ipti\'e 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 consideged
as limited to such propei'ty, 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. "Explanatioii----ln judging
whether a case falls within the meaning of this section, ar" words which
would be liable to rejection under section 78 shall be deemed to have been
struck out of the will."

The section does not seem to need any change.

section g0_]atem 16.13. Under section 80, extrinsic evidence for the construction of will is
ambiguity. admissible in cases of latent! ambiguity. The section reads as under:

"80. 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."

The principle here is that if circumstances external to a will create problems,
then it is legitimate to seek a solution to those problems in the external circums-
tances also.

The section needs no change.

Section 81_Patem 16.14. In contrast with the above provision_ the /\ct disallows extrinsic
amb,~gm'ty_ evidence in case of patent ambiguity or deﬁciency. This is made clear by section
81, quoted below : '

"8l. Where there is an ambigugity or deﬁciency on the face of a will no
extrinsic evidence as to the intentions of the testator shall be admitted."

The section needs no change.

Section 82--Entire 16.15. The elementary rule that the meaning of a clause is to be collected

inSt1'um§nt t0 be from the entire will is found in these terms in section 82.
looked into. . g _ _
"82. The meaning of any clause in a will 1S to be collected from the entire

instrument and all its arts are to be construed with reference to each
9
other".

No change appears to be needed in the section.

IV. Construction of words and clauses

16.16. Sometimes, ge,nci'aE words in a will may be understood in a restricted
sense, and restricted words may be understood in a sense wider than usual. The
test is the intention of the tcstator. Section 83 deals with both these aspects in
these words------

S.-.ction 83----General
words.

"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

.1See para 16.8, supra.
*Misprinted as 'patent' in the marginal note to Sec. 80.



109

sense; and words in-ay be understood in a wider sense than tltat which they
usually bear, where it may be collected from the other winds of the will that
the testator meant to use them in such wider sense."

The rule enacted in the section is reasoiiable enoiigh. /\nd though it may
.not be easy to apply it in a particular case, there is no method of inaking it more
precise.
We do not, therefore, recommend any amendment in the section.
16.17. Where a r.'lausc in at will is susceptible of two iiieaiitiugs accoiding to Section 84._'i'wo

one of which it has some effect, and according to the other of which it can have memiY\gS-
none, the former shall be preferred, under section 84.

The principle here is that effect must be given, as far as possible, to a will.
As Lord Talbot said'--

"Where words are capab'-e of a two.t'old construction, even in the case of a
deed, and much more of a will. it is just and ieasoiiabl-3 that such construc-
tion should be received as tends to make it good."

The section needs no change.

16.18. Section 85 provides as follows :-- Section 85----reason.
nable construction.

"85. No part of a will shall be rejected as destitute of rneaitiiig if it is possible
to put a reasonable construction upon it."

The section is based on the legislative policy? of giving ellect to the testtitors
intentions----of course, within reasonable limits.

The section needs no change.

16.19. A will--or, for that matter, every legal instrument is expected to bear seciion g5_w0,d'5
internal consistency. lnterpretatioii of" words reported in diflereiit parts of the will used in ditferent
should therefore be harmonious. Accordingly, section 86 provides that if the same parts °f same will-
words occur in diflerent parts of tl'e same will, they shall be taken to have been

used everywhere in the same sense, unless a contrary intention appears.

The section need not be disturbed.

V. Deﬁciencies and Vagueness

16.20. Section 87 pi'ovitZ.'s that the intention of the testator shall rot be ,
set aside because it cannot take effect to the full e:<t'ent, but elftct is to be tS(':°"°g'e 8;i;';1:'ll°t"(;
. . . . . . . . . I
given to it as far asvpossible. We have already indicated how" it is the policy ;c51amr'5imemion_
of the Act to give eflect to the testators intention, as far as possible, The same

policy is reflected in section 87.

The section needs no change.

16.21. Inconsistency in a will is dealt with by a simple rule in section 88, .
in these terms :  88'? ""'°'

"88. Where two clauses or gifts in Q? will are iirecoiicilialilr, so that they
cannot possibly stand together, the last shall prevail."

If it is not possible at all to give effect to two clauses of a will, there can be
only two alternatives :--

(i) disregard both, or
(ii) prefer one of the two.

The legislature has adopted the second alternative, so that at least effect will
be" given to one of the clauses of the will. The reason why the last clause shall

'Atkinson V. Hiltc/iinswi, 31'. W,s. 250, Henderson (1928), page 161.
2568 paras 16.2 to 16.4 supra.
3See discussion as to s. 84 supra (Para 16.17).



1l'0'7

prevail is that the last clause may be taken as expressing the considered opinion
of the testator.

We recommend no change in the section.

Section 89--Wil1s 16.22. Section 89 reads---
void for uncertainty- _
«C353 law 011 D1141" "89. A-will of bequest not expressive of any definite intention is \'0l(l for

mi' ' uncertainty."

" The section applies to Hindus etc.

One of the most iinportznit classes of bequests held to be void for un-
certainty underthis section' comprises bequests for "Dharma" (or similar pur-
poses).' It was "held bythe Privy Councill long ago, thatjthe-word, "Dharma"
is void for uncertainty. This decision had, naturally, to be followed by the High
Courts, but it was not whole--neartedly welcomed in India.

The earliest pronounc-e.ment on the point is that of Sir Brakine Perry and
S. M. Yardley". This was followed in l'iunjz'i'an Das V. Dev I(z(i*c1r[.vu1'.3 The ques-
tion was elaborately considered by Farran, CJ. and Tyabji,' J, in a succession
case. In that case, the testator, after giving certain properties to his two' wives, left
the residue to his trustees who were to apply the same for "Dharma". It was
held that the trust was void for uncertainty.

Judicia] decisions 16.23. From time to time, there were judicial expressions of view favouring

in India. a different approach. 5*" ..\;lany eminent Hindu Judges» who hadoccasion to

consider this matter' were of the opinion that the contrary view was the correct
one. However, because the Privy Council was not prepared to reconsider the
View expressed by it in earlier decision, the decision'? was held to be binding
on Indian courts.

' V B, K. Mukherjea in his Tarore Law Lectures"'" has called for a re-considera-

~ fion of'this.view.. '

Bi" of -1933. 16.24. It is understood' thatjin order to give effect to the popular view, a

 A , Bill to amend the law was. introduced in the Central' Legislative Assembly in
.1938. However, the Bill was dropped," as it was thought that the subject fell
under the legislative entry relating to "religious and charitable endowments
which (under the Government of India Act, 1935 which was then in force) fell
in the Provincial List. '7' ~ '

Bombas; 1: P.hb"é' l().2'5. In_ I950, theersjtwhile Stateof Bombay  the Bombay Public
Trusts Act' 1950' Trusts Act, which not only enacts a general rule 'tl'l21[,3'p',UlL')llC.,,{;!['ll$t'-IS not void on
- I the ground that the purposes of the trust are unascertained or unascertainable,
but also speciﬁcally provides" that a public trust created for such objects as
"dharma, dharmada, punyakarya or punyadan" shall not be void only on the
ground that the objects for which the trust is created are not ascertained. This
provision is more in consonance with the notions of Indian society than the view

' _ _laid"down judicially. ' '

1RllI7('/I()I'(/(IS v. Purrr/ti (1899) I.L.R. 28 Born. 725 (P.C.).

"Advocate-Ge/imwl v. Dumzn'/mr, Per'/'}".s' Oriel/ml Cases 526.
' "'Pr(m)'ivan Dar v. Dev Kmwr/mi, l B.H.C.R. p. 130 (Note).

'Vum/rubu/I Dus v. Curzon /)(1.\, (I897) !.L.R. 21 Bom. 646.

"'P(lI't/l(!.S'(II't/I)' v. T/m-zwwzga:/c, (1907) l.l...R. 30 Madras 340 (judgements of Subramania Ayyer
J .). ,
"Ar/'v0r'ritu (Jer1em/ v. .//m/mi, (l9l 7;' l.L.R. 41 Born. 281, 282, 283, 284 (Bcaman J.).

7See the observations of M-ookerjee, J. in B/mpli v. Rum La! (1910) I.L.R. 37 Cal 13728 (FB)
and of Jailal J. in Briﬂnl v. .\"'aru/'adds (1933) l.L.R. 14 Lahore 827.

"R/I1Ir'/mrrI(I.s'V. Pa/'Vat/', (1899) LR. 26 LA. 71 (I899) I.L.R. 28 Born. 725 (RC).

34. Mukherjee Hindu Law of Religious and Charitable Trusts (1979) page, 118, para 3.16 and
p. 119 para 3 . 16A.

9Bill No. 10 of 1938, Gazette of India, Part 5, dated 17.9, 1938,Paruck, Succession Act,
commentary on section 89. '

"S. 10, Explanation, Bombay Public Trusts Act, 1950.



«ill-Lil -7.

Section 10 of the Bomba Public Trusts Act. .1 950, is -L noted below' _:
Y H l _

"l(). Notwithstanding any law, custom or 11s;'1ge' :1. public trust shall 'n'ot'.lie:
void only on the ground that the persons or o"»_ie<:ts f"os' the benefit of whom
or which it is created are unascertaitied or tmascertzt:nablc." A

Li-\/'/UHK-'I/011 S A public trust Creatcti for such objects as dl1z11'ma..dharmada

or pL1nyal<aryz1. or punyadan shall not be deenicd to" be void, only on the

ground that the objects for which it is created ari: 1i1tz1scei'tai'netl'or unas-

certaiiiablef'.

lo.26. Having regard to what is stated above. it is. in our opinion, desirable Recommendation .
to add an Explanation to section 8'). Succession Fret on th: same lines as has") amcnd 56915011
been done" in the Bombay Public Trtlsts Act_ 1950. We recx: nmcntl accordingly..89'

VI. Application of description to external reality

16.27. Illustrating the general principle that 11 will speaks from the moment Section 90.
of death of the testator. section 9() provides that the ri.:scription contained in a
will of property, the subject of gift, shall. 11ulcss :1 C0lllit1i.'_',' _intcntio.r1 appears by
the will, be deemed to refer to and comprise the property ausweriirg that descrip«
tion at the death of the testator. T ' '

The section needs no change.

l6.28, Section 91 provides that unless a contrary imention appears by the.SeCli0n 91.

will, a bequest of the estate of the testator shall be C0l";\ll'UC(l to include any
property which he may have power to_ appoint by will to any olzject he may think
proper, and shall operate as an execution of such power; and a bequest of pro-
perty 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 operue as an execution of-such
power. '

No amendments are needed in the section.

16.29. This takes us to section 92. which rcad's as under :----- _ Section 92. \

"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 am! the will doe; not'p1'ovide
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." -

1

The section needs no change.

16.30. Certain words and expressions commonly used in wills are icleclltgecnon 93_
with in section 93 quoted below 2 T 1

"93. Where a bequest is made to the "heirs' or 'right heirs' oi7'1'cl21tions' or'
'nearest relations' or 'family' or 'kindred' or 'nearest of kin' or 'next of_ kin'-
of a particular person without any qualifying terms, and the class so dcsig-
nated forms the direct and independent object of the b:que'st, the property.
bequeathed' shall be distributed as if it had belonged to such person 'ati(l"he
had died intestate in respect of it_ leaving assets for the payment of his'
debts independently of such property." L

No amendment is needed in this section, The sigiiificance of-the~ section
lies in the provision contained in the words "as if it had belongt-<.l to such person
and he had died intestate", which practically make the heirs of such person the
beneﬁciaries. rendering further inqusiries unnecessary, It applies only-if the class

' is the direct object of bequest. Contrast section 97. .

16.3]. Continuing the method of spelling out the meanings of words com- Section 94.
monly used in wills, section 94 deals with the case where a ﬂcq'1_1_c5t is fnade-to
. . .   _..a,,_ t. E
'S. 10, Bombay Public Trusts, Act, 1950. ' ' ' ~
'Section 10, Explanation, Bombay Public Trusts Act. 1950 (Para 16.25 supra). . ' '



Section 95.

Provisions

.112

the 'representatives', 'legal representatives', 'personal representatives' or 'executors
or administrators' of a particular person. If such class so designated terms the
direct and independent object of bequest, the property bequeatlied shall be dis-
tributed  if it had lielotigctl to such person and stieh pcrsoit lidtl died intestate
in respect of it.

The section needs no change. Tl1e principle is the same as tltat explained
under section 93.

VII. Quantum of Interest

16.32. Under Section ll5, 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. With this provision,
section 8 of the Transfer of Property Act, 1882, may be compared. Previously,
there used to be scope for controversy as to whether a particular bequest to a
Hindu female was intended to give her an absolute estate. or whether there was
to be read into the bequest a limitation of a life interest or the like. But this
controversy could not survive after it was laid down by the privy Council that
there was no need to read any such lmitzttion 111 a will. This interpretation has
been re--alf1rmed by the Supreme Court'.

Kania J. in a Bombay cascf made an exhaustive survey of the decided cases
on the subject upto 1943. Section 14 of the Hindu Sttccessiozt Act, 1956, now
provides as under as regards llindus :--

"14, Property of a female 1I[I1(1'( In he /19)' ahsnlttte _l)l'0/)L'i'f'\'2 (1) Any
property possessed by a female Hindu. whether acquired before or after
the commencement of this Act, sltall be held by her as full owner thereof
and not as a limited owner. '

"Explanation: In this sub--sectio11 'property' includes both movable and
immovable property acquired by :1 female I-lindu by inheritance or devise,
or at a partition, or in lieu of maintenance or arrears of maintenance, or
by gift from any person, whether a relative or not, before, at or after her
marriage, or by her own skill or exertion, or by purchase or by prescription,
or in any other manner whatsoever, and also any such property held by
her as stridhana immediately before the commencement of this Act.

"(2) Nothing contained in sub--section (1) shall apply to any property
acquired by way of gift or under a will or any other instrument or under
a decree or order of a civil court or under an a\va1'd where the terms of
the gift, will or other instrttment or the decree, order or award prescribe a
restricted estate in Such property."

in the 16.33. What section 95 of the Succession Act and section 8 of the Transfer

Hindu succession of Property Act lay down is in substance, also enacted in section 14 ofilthe Hindu

Act.

No change in sec-

tion 95.
Section 96

Succession Act.3 If a "restricted interest" was intended for a legatee in general
(section 95, Succession Act) or if a "restricted estate" is intended for a female
Hindu (Section 14, Hindu Succession Act), it must "so appear from the will
(section 95, Succession Act) or the terms of the will must "prescribe a restricted
estate" (section 14, Hindu Succession Act). Notwithstanding the verbal differences
in the various provisions,_it may be presumed that there is no intention to lay
down substantially different rules.

16.34. In this position, section 95 needs no change.
16.35. This takes us to section 96, quoted below:

"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 lﬁflillﬂti llI'St named shall be entit-
led to the legacy if he is alive at the time when it takes effect; but if he

:Ram Gopul v. Nund Lul, A.l R. 1951 SC 139.

2Bui Bhuri But' D. Gurntukhrut' v. Advocate General, AIR 1943 Bom. 377; 45 Bombay Law Re-
porter 669
3Para 16.32. supra.



113

is then dead. the person or class of persons named in the second branch
of the alternative slznll take the le<__-neg."

No amendment is needed in the section. It re--entphasises the principle (sec-
tfon 90) that the will speaks as from the death of the teslatot'.

VII. Bequest to a Class

l6.3o. According to section 97. where _nroperty is l"..'t]ilL'£lillC(l to a person, S°°"°" 97'
and words are added which describe a class in' persons but do not denote its the
direct objects of a distinct and independent gift. such ;_>ers<:n is entitled to the
whole interest of the testator therein. unless it contrar_\' lII5'_'.TtllUll appears by the
will.

The section reeds no chungze. It may he t:i):>,tr:istcd with s-:ct'on 93.

16.37. S'3cti0n 98 reads as under :-- Section 98'

"98 Where a bequest is mazlc to a class in §',~Cl"j('€l". timler :1 f.':CI'. ural descrip~
tion only, no one to whom the words oi' the rescriptiott are not in their
ordinary sense applicable shall take the legacy".

No amendment is neetlccl in the section. The emphasis here is on excluding
persons not belonging to the class in the ordinary sense of the descriptive words.

IX. Rules of construction

16.38. Section 99 contains nine rules of construction of wills. These are §l'°r°u';'t'i'(')n 09f9le'"(;"';"'
as follows :-- ' '

"99. (a) The word "children" applies only to lineal dcseentlants in the ﬁrst
degree of the person whose "'children" are spoken of; (Thus. rcmotcr des-
cendants are excluded):

(b) the word "grandchildren" applies only to lineal descendants in the
second degree of the person whose "'grandchildren" are spoken of;

(C) the words "ncphews" and "'nieccs" apply only to children of brother or
sister;

((1) the words "cousins" or "ﬁrst cousins" or "cousins-ger-man" apply only
to children of brothers or of sisters of the father or mother of the person
whose "cousins" or "ﬁrst cousins" or "cousins--gcrman" are spoken of:

(e) the words "ﬁrst cousins once removed" apply only to chiltlrcn of cousin-
german, or to cousin--german of :1 parent of the person \\'h0s:': "first cousins
once removed" are spoken of;

f the words "second cousins" a ll onlt to erandchilclren of brothers or
_ 5 > 

of sisters of the randfather or xrandrnothcr of th: ersons whose "second
o II E

cousins are spoken of;

(g) the words "issue" and "descendants" apply to all lineal descendants
whatever of the person whose "issue" or "descendants" are spoken of; (Thus
remote descendants are included---contrast cl. (:1);

(h) words expressive of collateral relatonship apply alike to relative of
full and half--blood; and

(i) all words expressive of relationship apply to a child in the womb who
is afterwards born alive."

16.39. The various rules in section 99 are stated in ente§.'.orical terms. but Need for excluding
not much argument is needed to show that they should he applied only where °°"'FaFYim¢"'i°"-
there is no different intention disclosed by a will. We are of the View that this
aspect should be brought out by explicit words to be introduced in the section.

For this reason, it appears to be desirable to insert, at an appropriate place in

the section, some such words as "in the absence of any intention to the contrary".'

!See paragraph 16.46, infra.



ll4

Section 99(a) mea- 16.40. That the section is subject to a different intention could be illustrated

Hing Of "Ch1ld"- from clause (a). While the words' 'child' or 'children' dealt with in clause (a)
primarily mean only "issue in the first generation", to the exclusion of grand-
children or remote descendants,' yet the context may show that these words
have been used for 'descendants' (or for something else) and so they would
sometimes receive another construction than the ordinary one?-'

Meaning 0f"Chil- 16.41. The legal construction of the word 'children' is nothing more than

dren" "' 3°"°'al' what it is popularly understood to mean, namely, as designzttiiii: the immediate
offspring of a marriage----ut_il_ess the context otherwise requires or the law other-_
wise provides. Generally speaking, the word does not extent to grant-childrenf
and the primary meaning to be given to the word is the ﬁrst generation.'

Extended c0nstruc- 16.42. But the word can, in the context, be extended to "grandchildren".

"°"- This point is well illustrated in an English case,' in which there was a gift to
the 'children' of a sister named in the will. At the date of the will, it was known
that the sister in question had no children, but had -certain grand-children. The
expression 'children' was accordingly construed as meaning 'grandchildren'.

Later decisi0nS- 16.43. In a later English casef it is stated that theres is no rule of construc-
tion on this question, and each will must be construed on its particular wards
(see various cases referred to in this case). It has also held in various other
cases that the word 'children' under certain circumstances may be extended, and
the word has, in fact, been 'held to mean, 'descendants'. The word has also been
interpreted as meaning 'heirs of the body'?

Pfinclple ma'. 3 16.44. The rinci le that a document ma furnish a dictionar from which
Wlll may furnish p- p . , . y .y . . .
an extended meaning of 'child or 'children' may be gathered has been ]ll(llCl£llly

d"t' .

luonary recognised" in England. In fact, in England, the Fatal Accidents Act. 1846,
sections 2 and 5 (as amended in 1934,)' expr?ss1y provide that 'child' shall
include son and daughter and grand--son and grand daughter and step-son and
step-daughter." '

Where an appointment under a power contained in a will to "any widow
of W born in testator's lifetime" was in issue, a widow of W who was in the
womb at the time of the death of testator was held to be entitled."

This principle is also incorporated in section 99(i).

S6cti0n99(i)Childin 16.45. Some comment is needed on clause (i) of section 99, dealing with

W°"'b'E"3"5hlaW' children in the womb. In England, it has been held that a person who is in the
_womb on a particular date is included in the description of children born or
'living at a particular date, if it is to the <:hild's own beneﬁt to be so included."

R€tt=0IIS1m6I19d9aIi0r}_ 16.46. Having taken into consideration various aspects relevant to the
gzraograegh ' m'"" meaning of the expression "child", we have come to, the conclusion that cases

where a diﬁerent intention appears from the will should, for reasons already

1See cases cited in Stroud, Judicial Dictionary (1971) Vol. 1, pages 454 to 455.
2Bowen v. Lewis, 54 L.J.Q.B. CB; 9 Appeal Cases 890 (Lord Blackburn).
3Nnrgzm v. Thomas, 51 L.J.Q.B. 556 (Also see paragraph 16.42, infra).

'Hardy v. Mitford, 21 Ren. 280.

-'~Ra'a'rli/('fa v. Buckley, 10 Ves. 195; Henderson, Testamentary Succession and Administration of
Eststes in India (1925) page 209.

"Gibson V. G1'b.ron (1901) I Ch. 49.

{In re :_Smith Lord v. Hayward, 35, Ch. D. 658; Henderson, Testamentary Succession and
Administration of Estates in India (1928) p. 209.

3In re,' Hovd v. Howl. 27 LJ. Ch. 505.

"((1) Bvng v. Bvng. 10 H.L. Ca. 171.

(b) Cliﬂbrzl v. Koe, 5 App. Cas. 447.

"Hill v. Crook, 42, Law Journal Chancery, 702 (Per Lord Cairns).
"Section 2 and 5, Fatal Accidents Act, 1846 (as amended in 1934).
12Halsbury, 3rd Ed. Vol 39. p. 1075-1076, paragraph 1603.

"Re : SIarn'r Will Trusts (1962) Chancery 732; (1961) 3 All ER 1129.



113

stated} be expressly excluded front section 'N, lliis could ire £tL.'l1i'.,\c'(l by insert-
ing in the section, before the iipciiiitig xxonls 'hi _; nili ' tli' \\l'l"xi§i fl.' :'/1;'
Of any intention It) 1/1:' r'U.'.:i';i;i"_ -oi \'~l:'l .. \.-';; iw..~,r ;.i:='..i.~1 witii-..-111131 ol
the 'I' in the present word 'In". We I'\fCUlil-.l1L'l'iLl tit:-.t .».-»;_io;i  ;,iio::lti Ewe amended
as above.

ti/=.\~. iitk'

 

16.47. Section 99, clause (i,'-. in so 11'; use it in. gs, is sound. llilloligll th. Section 99(i) Child
section is conﬁned to the cot'ist1'uction ol' wilis, Li s.itit.i;ti' principlt: xxould also "' "°'."b R°.CCm'
apply to intestacy. But often it may be (lilll('lll1 p':<"\'.' 'ili:i?. .1 child was in wrxmb;?::lcL:T]tI:$I:1'i:f;1lnSer[
at a pcxrticular time. Cases where the child ' toin xx/tliiii_ st ' six; months or so '
of the death of the father, pt'C.s;11'. no ilfili-;u:t;.. :3-_n,  ' -5119 '::Ist's im'ol\'ing_

a longer period of gestation tnay create pi'oZ>lei:is 'l wt-:.g up it :.tt~__;;.estioi1 made

by a learned writer" with retcrcnce to the ;t>:i';.xpti.itliu:. provision in the Hindu

Succession Act,' we wouid state that ;L uotaltl he [!.',t']l{/ .5; an Ii'.rp:'u..vn.'I.:<m is
inserted to section 99. c-rea1m,e (1 /n'z'.s'.Iin1,'w'-'-.2  /vi'/' ~ ~:z1s' w/wry the
birth takes place within (1 pa)'It'c1.'.l(ir ,m,./ml. J... .
315 days?

wt

    

 

it.

  
 

         
   
 

    

   

16.48. Here it may be 11()7.Ui, that ili()ll_=ill
presumption as to legitimacy, that does not .'iI'i{(':',>'-'
child being in the womb at a [)L'i1'ii('ll[(l)' .:z';iz.a it
certain Conditions, 21 Child born of :i woirz'-.n will' _t'~,':/ .r;'t.I_*.':; of I/.--:' r/cut/1 of 1/16
husband shall be presumed to be the -.'l'.'_l'.l ot lit; hu<;'-'r;;ntl ot the woman. It is ~
a presumption as to paternity. and as to the (lIllC' of c-.>:2:»<~p,io:i. It does not even
directly provide that the child shall be pats 4 ml mt Jrtti'./-- ~i-'z,_.,:i ii: I/'It' aw/21/) at a
particular time. (There was no 1'.('L'(l to deal '\"t-= 15:: mt-ttt-i",~. in the Succession
Act, on the other hand, time is cruci:il, and l.il."_' is 1-ic:'t'l'oiw:. need to introduce
a' presumption on the subject in the Act.

    

      

  

Wd suggest a period of 315 (lays in this coiitexi, as already stated,

16.49. The fact that section 112 of the E':'~.=iilcne-: Act provides a practically Period under sec-

conclusive presumption where the birth talus place wltliin 280 <la_vs does not mean tion 112-

that a child born after that period should he i'r'g::ii'<letl ncccss:.~ril}.' as illegitimzite.

It means merely that there is no presumption in such r:'.~.<:es and that the burden

of proof may lie on the person who claims lCfll1in1llC'y. in some cases that burden

may not be so placed, because one cannot overloolx the presumption pgrmitted

under section 114 of the Evidence Act.

This is particularly so for the reason that the question of legitiinacy is of
grave importance, as it is a matter of social status and atiects the whole status
of the child. The onus which is §'.0\'Cl'I1'.'(l by the rii!::s hr}-:i1_\' stated above in
such a case is founded on the interest of the child and the in?.c:'est of the Stair:
in mattersvof legitimacy}

If, having to the common course oi' natural events and human Conduct
(section 114), the child is born within a rezisonahly possible period. the court
can raise a presumption of legitimacy." and the l711"(lC11 of proof would then shift.
In such a case, the burden of proving illegitimacv \'-.'oulcl he on him who so
alleges it.

16.50. In this position it would. in our view. he n-cmiissible to snecifv 219715" Law "Type-
period longer than that mentioned in, section 112, The ?'éi~io<1 oi' 315 days has ""'l °f ge5""'°"-
been suggested by us,9 having reward to the 'rt':vli1ies as disclosed in iudicial
decisions and medical evidence referred to therein."

'Paras 16.39 to 16.44, supra.

"Cf. section 100.

3Dr. Derret, A Critique of Hindu Lav: (10'7H) ;~:r_.~_.r-*. 719

'Section 20, Hindu Succession Act, 1956.

'For the draft, see para 16.53, infra.

'Section 112, Indian Evidence Act, 1872.

7U!tamrao v. Sim Ram, AIR 1963 Bombay 165. 167, p:ir"=uv'rin'=i 6.

"Cf. Uttamrao v. Sim Ram, AIR 1963, Bom. 1:15. 167. pill" 5» (NW r':1_v-i).

'Paras 16.47 and 16.48, supra.

1"!/ttamrao v. Sitaram (1962) 64 Rom 1. R 752. 757. 701 ' A i 1? 190*» Rom 165



116

It may be noted that in a Madhya Pradesh' case, a period of 305 days was
held to be permissible.

There are other cases where courts have refused to declare against the
legitimacy of the child, where the period that elapsed between the last coitus
and the birth of the child was more than the normal period. In the case of P. v. P.'
the period was 330 or 333 days__ Evidence was led to show what can be the
maximum period in such cases of prolonged gestation.

English Ca5¢<- 16.51. In certain English cases. the period was 346 days" or 340 days,' or
331 days." Of course, in these cases, the wife had given evidence that the child
was legitimate and there had been no adultery.

It is obvious that there is a power in the court to take judicial notice of the
fact that there is a normal gestation period." At the same time, judicial notice
must also be taken of the fact that in an actual case the period may be longer
or shorter than the normal period which is generally given as 270 to 280 days.

Rule of canon l6.5lA. With reference to the proposal (as put forth in the working paper)

law C0"*"de'°d- regarding the child in the womb born within 315 days, the working Paper, for-
warded with the letter of the7 Catholic Bishops Conference of India, states that
canon law presumes children to be legiti-mate if born within 300 days. The
comment raises the apprehension that the "proposed amendment might give rise
to fraudulent claims". We do not share this apprehension. The presumption will
be rebuttable one, and will be in conformity with the general trend of the case
law, referred to above.

Reason for taking 16.52. It was because of the serious disabilities of the illegitimate child that
a liberal view. courts have taken a liberal View of the period. In countries where the rights of
illegitimate children have been widened.' there may be justification for not taking
the same liberal view of the presumption of legitimacy. Since we have not yet
reached that stage," it would be desirable to make the change recommended

above.

Recommendation 16.53. In view of what is stated above." we recommend that the following

as to section 99 explanation should be. inserted in section 90 on the subject of a child in the
womb :

"Explanation 2 For the purposes of this section, a child is /"treszrmedrto have
1269;: in the womb at the time of the death of a person if the child was born
within I/lI'P6 hundred ant!' fifteen days of such death".

Section 100 and the 16.54. This takes us to section 100." It provides that in the absence of any
0093"" Of "=g'"'intimation to the countrary in a will, the word "chilt". the word "son", the word
mac" "daughter" or any word which expresses relationship, is to he unders*ood 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.

An analysis of the section shows that it consists of two parts. The restrictive
provision in the first part conﬁnes the expressions in question to leoitimate relation-
ship, This. however. is modified by the latter half: where the modifying provision----
though of a very limited character--covers a person who has. at the time of the
will. acquired the reputation of being "such relative". The first part is illustrated
by illustrations (i) and (vii).

'D/zedu Shenram v. Alalhanbtii. AIR 1966. MP 252 (305 days).

'~'P. v. P,. (1911) 12 l.C. 946 (330 or 333 days).

"Wood v. W001/(1947) 2 All R.R. 95, 96.

'Had/um V. Had/um (1949) Probate 197: (1948) 2 All F_.R. 412.

5Grr.sk1'll v. Gmlrill, (1921) Probate 425; (19211 All ER. 365; 126 Law Times 115.
"Preston Jnnes V. Preston Jones, (1951) 1 All ER. 124, 127, 135, 136, 139
7I..~tter of the Catholic Bishop's Conference of India. dated 3rd October, 1984.
"Compare sectior. 26, Family Law Reform Act, 1969 (Eng)

9Section 100.

"'I'aras 16.45 to 16.47, supra.

lllt is applicable only where there is no legitimate re1ative__



117

The second part relating to 1"CpLIl;ll1Un is l.illlSlt".li'.'.(l by illiistraiion (iii), (iv),
(V) and vi).

The opening woril.~; i'v.>l..it'iii:. iii .' .i=iii;':-it l'_'.f:'.'.11l-iii': .l:';' l':lt'..\l"I'ilC(l liy illustra-
tions (iii) and (viii).

16.55. The illiistratioiis to .~:.;..rt?.m; 1510 ll'.';: iiiii.st1';,r lxiscil on Engjlisli Cases Illustration to sec-
as will be clear from the i'o'rlowiny: -;l..t;*t'* : "0" mo'

Illustration () ('Ut"1't'i'Iik:{IIi' i,. ='V-iii.-'i'_i'. f
l1lu.strat''oii ( ) £73»/i'.'..". \. !_z.m., ' {'9' . .
li.lt'.~tr;:t on i' I ) ."\,':'/F. . ~ ; ,  ')'.l  -li' _i' \, . ._...~'i'r./'. -1.lui'.i\'.S. 6:73.
llT'.ts'ii'a: on (.v) l.(.».r:-' l4"i2nc.'i":/ii.\'c.7tt'  _~'l';:'i"i"_l'.'7It'!'/t'. '_' Mei'. 4-17; Gill v. S/zclvey
2 R <3'; i'; 3.6.

lliusti'a1'o.=. (V) M01'!/'2.iici' V. lit-'.' T  3"/(1

ll'ustrat7.m (vi) mat a7.s~.= he eomprii'-'.'.d '.\ ti. an i'z'i:_>l'sli Case-.3-5
l'lu.sti'at or. i:.ii1) and (viii) wit'. be coi:s,idercd lziter.4

    

 

16.36. Sonic discussion is i*ie».:ess2:r-r as to the position of illegitimate Positionincommon
children in the context of section 100, At common law." there is no bar to an i3\_V 0i illegitimate
illegitimate child as such ta1<in_iz a gift under ti, will or a deed. But there is a°h'ldr°"'
principle of interpretation which. in etlcet. creates it disability. The principle is
that any gift to children as a class. pri'iim in in niszms; "legitimate" children. This
presumption can be rebutted by proof that the author intended to beneﬁt illegiti-
mate children. Such an intention can be proved if. for example. the testator

names the illegitimate children or exptessly iiaclu-fies them as a class, The pre-

sumption can also be reliutti;-:1 31-' '~":'i.r.::7vi'v that at 'to time oi' execution of the
deed or will it was possible onlv for illegiiiiiizite chiltireii. to take under it".

  

There is another iliszikiilitj. E'. 9.1 'i-'' '="-  eliildi-en in Vi'.'\V of the rather
curious rule that a gfitt to illcgitiiiiais cti?ltlreii to be born in the future is red
as against public policy as it has a tcialeitcv to encourage immorality?

16.57. The law on the subjct't has l'.. ..'i 5'-ziornietl in many itiiistllctioiis. The Refornis in certain
provision in South Australia. tar example i-ends as under :-- Jurisdiction

"(1) So far as l'--f1ZL'.t".l.'§ siiceessiii-ii 1.» f,="'i\ irszitir i-:iidt.'i' Iiiiv Wiil Or under th:
total or partial intestacy" oi" fl xxoniaii. her illcgllllillc child shall have the
same right and title as it he were l<:;;itim::ie."

16.58. SCCll()ll 100. in so i'ai'_:is it dea1s_\' 3th  rights oi' illegitimate child-- section 100_Va,i_
ren. raises certain important q:.:-:ti<iris. (ll :st>:i:ai poiicy. namely, whether the law ous alternatives re-
should discriminate against illegitimate children even by a presumptive rule of the C"m"i€"d€*i-
nature enacted in the section. Our min pi'e'i'ei'eiice would be for reversing the
rule contained in the section. for i"CZl'~',\)1'..'I to be stated in due course." However.
in case siich It rzirtical reforni is toiiriil to he no'. acceptable. there is still scoP9
for certain modiﬁcations of substance, ll C'.-";'11 lll~'S': modifications are not found
to be acceptable, some verb:-1 Cl1.'1ng_CS sli.i.:ii.':'.. in any case. be made in the
section. '

     

 

' 16.59. _\'V-.3 may now tiik" tip ,<i:--..':i.on ml} proper. zisstiming for the time Section 10;), first
being, that it is to be 1'C'I21l'-'lC(l, The i!.iS" 'tart 6' the section raises no serious part.
problem of interpretation. it does. oi tiiuimﬁ raise a question of policy. which
we shall discuss later.'"

  

 

16.60. The second ptlrz'. of the "§C'?ll()I'i p:'m'.'=<le:s:. that where Ill('."(' is no such seciion 100, second
legitimate Wltitz'i'e, the words eniiniei':ited :il'o'-1: :i:'i;' to be understood as denoting [Wt-

'Sec M. N. Basu, Succession Act (1957), comnicntary on section 100, page 310.

"See infra.

30'. Hill v. Crook (1873) LP. 6 H. 1.. 265.

'Paragaraphs 16.62 to 16 65 ;mil. It'-.66 (17. \t'('. in/111.

5Hill v. Crook (1873) la'. Rcii iris <3 House of l Oixls. f'_i"i5,

"Re Eve. (1909) 1 ('hniicuy 796.

7HillS V. (Vault. (1873) 11m Report» 6 ll-: ime i-l §_iii'il-:. 365.

"Section 55(1). /\\ll'i1ll1l.*il1'(1IlUil ant! l'i'.--liiiit, Mt Wt') .!'>i.-i ihiiiiili Aintralizii, quoted in Sac~
ville and Lanteri, "l)ist:ibilitie~, of .|lt-g.gitiiii;tt.: K lill-l!i.'il iii xii.-.i...ili.i 'i 1 12.0) 44 AL|§1i'ul!dl1 Law Journal
55, 58.

"See fima. (Para 16.65 et. se.:1. i'.~i/iii)

"See infra 27 (Para 16.65 et seq. infra).



118

a person who has. at the date of the will, acquired the reputation of "being
such it-l..:!i\«." limx. th~_ words "beirg such relative" are ambiguous, in as much
as either they iiiziy ll]'L".ill persons having the reputation of being legitiniate relatives,
or they may also mean persons who have the reputation of relatives siniplicitor.
The first eoii:~:tvi:::tioii is supported by the marginal note to section l0(), which
speaks of "i'cldti\'es reputed legitimate."

tilt' 5L.\".*llLl eoiistnieiioii is supported by the general sense of the section
and it may  noted that illustrations (ii) to (iv), to the section, which are
relevant to the latter half of the section, do not require that the reputation must
 r:'7zitii't'. The rule of English law also is that where there
are legitimate re." .\'es. the persons who have acquired the reputation, not neces-
sarily of lvrzi/i.uitic[\', of being the child. son. or daughter, etc. as the case may be,
of the particular person, will ta_ke under the description of son_ child or daughter.

  

  

o' reiiii  1'-3:'//.'

R6"OmmCt1dL1I'l01l 1!. (l. In the light of what is stated above as to the ambiguity arising from
Ygnamsn lSC<?"<m section 100, we recommend that section 100 should be 'suitably redraftedso as to
' ujlw' to (5 I':'/)llt(:"Il()/'1 0 relations/'1i) but not neeessaril ' a re ulation 0 le itimacy_

l 9 .} P g

The obiect could be achieved by substituting, in place of the words "being such
i'eiattve"_ the uords "l2ez'.'2e a child, son or clazigliter or otherwise standing in the
rri'z:t."rr.'ts.-"zip in question". ' .

(This recommendation is to be carried out only if our alternative recom-
mendation to delete the sectionl is not accepted).

Revised section 100 would then read thus---- ,

"i(')f)_ in the absence of any intimation to the contrary in a will, the word
"eliiid", the word "son", the word "daughter", or any word whicliexpresses
rcl9tioitsliii> 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 a child, son or daughter or
<II.r't't'.r"=i>i"';z> .'»/fllllllllg in the relationship in question."

Section 100, ilhis-- l6.62.,We may now deal with illustrations (vii) and (viii) to sectiori'100,

trations (vii) and xxhi-sh read as f'i=llo\\'s :

(viii). .. . . , . . .
"(wi) A mZ'.l§CS a bequest in favour of his child to be borne of a woman who

l'..."u'L".' 7eC('..'t':('s his wile. The bequest is void".

(viii) A makes a bequest in favour of the child of which a certain woman,
not iiizwfeti to him is pregiient. The bequest is valid".

In-completeness of l6.6?~. lllmtrations (vii) and (viii) to the section exhibit some incomplete-

seg.100illttjtmtiwmness, inasmuch as their rationale is not manifest from the language used. It

(V11) antltvmt. appears that some facts basic to the proposition of law are assumed in the
illustration, but they are not stated in so many words-. Thus, the seventh illustra-
tion assumes (without_ however. stating so) that a bequest to an illegitimate
child. not yet i'm_g2otI:';i,  against public policy. This was the rule in English law,
according to earlier cases.'"' We shall discuss the present position on the point
later.'

Then. the eighth illustration assumes that there is an evidence of a countrary
intention, and also that the child is in the womb. For this reason, the bequest is
regarded as valid. However, the illustration does not clearly state these important
facts.

Changeneedcd in lo.(~.-1, This aspect should be brought out more clearly, by suitably amending

the illustrations. the illustrations so as to incorporate the reason on which the View taken in illus-
tr:it'ons is based. In illustration (vii). the words 'since it would be against public
policy' should be added at the end----if the illustration is to be retained at all.5
In illustration (viii), the words 'since there is evidence Of contrary intention' could
he added at the end.

1Kiz.r/ti v. 1l'i/srm, l7 Vessoy 523.
'-'Sec iii}?-ti (Para 16 65 et. seq.)
-'Cf. (a) Paruek. Succession Act (977), p. 243.

(b) Halsbury. 34th Ed. Vol. 39, page 1074, para 1602, second sub-para.
'Se: priragrziphs i665 and l6.66, infra.
"See parzigrarh 16.65, infra.



1 19"

We may recommend that illustrations (vii) and (viii) to seetéon lt)t) s.l:et=i-.1
be suitably amended as above.

6.65. The more important question, however, is whether'illustration (vii) Ito
section 100' should be retained at all. It has to be note: in t.iis C01'-.i.".l that tie
English law, as it developed in the course of the latter half of the 19th e.+:i1nr_\.
has taken a different approach in the matter of bequests to illegi itnaie t_i:?'a«.li'ei1
of the testator, begotten or both after the date of the will. In th: early zltiglisii
cases", two reasons were usually given for excluding such <:hil:.l;':n--~--

(i) uncertainty of determining paternity; and

(ii) the bequest being against public policy.

16.65A. A gift to future illegitimate children, expressed by refet'ct1Ce to the
paternity of a particular person, was regarded,.. in England, as failing for want
of certainty, on the ground that in order to ascertain the persons entitled under
such a bequest, inquiries might be necessary which the law forbids. This consi-
deration, however, has no applicability in India where the law of evidence does
not recognise any prohibition against an inquiry into patemity.

 

..,..

16.66. As regards the aspect of public Pbliey, the later "*'ish view has
been that while illegitimate children to be begotten after the death of the testxttor
cannot be provided for by will (nor can future illegitimate children he provided
for by deed), yet, so long as the clause is limited to children in z'.r.s'(' when the
document takes effect, it is more, in accordance with the pubic policy ti.;:t :1
suitable provision should be made for them, than that such a elxjise should
be regarded as beyond the scope of the law and that the tiniorttinate otl'sprin=.=.
should become a burden on public funds."

Even in one of the earlier English cases,' the position was thus stated :

"As to the rest of the gift to the children 'to he begotten', ijvery «viii to an

' illegitimate child, the begetting of which is a thing contemplated, must fail.
It is against the policy of the law to permit any provision for 't'.lll"e'f§()[lCil
illegitimate children; but it is not against the policy of the law to permit
a provision or gift to an illegitimate child he_r_zotf.en, but ll?'.i)0l'll, I appreliend
there-is no doubt that a gift to the child of which a woman is eneeinte at the
time of the gift, is a valid gift, although that child be an illegitimate child.
It is a valid gift, because there can be no doubt about the object intentletl
to be beneﬁted."

16.67. In Occleston's easef James L. J. Said :

"I will follow the example of Lord Cairns in that case, and sttppostg ;, will
to be written out at a full length, expressing the testator's intention and
meaning, and motives or grounds. Assume the will to be thus written
"Whereas I am living in a connection unhallowed and illicit with A. B. and
there have been, and in the course of nature it is probable there may be
Offspring born of her body,' the fruit of our inter-course, and I do not think
it right such offspring should be a burden upon the community, and I desire
that, notwithstanding the misfortune of their birth, t-hey_should not be, left
without sufficient means for their maintenance, education, and future wel-
fare. Now, therefore, I do make the following provision for all Children born
of her body while she is cohbiting with me."

Now what is there against morality, or religion, or public policy in such a
provision? '

16.68. In the circumstances,'illustration (vii) to section 100 seems to be
anachronstic. On a careful consideration, we see no reason for retaining
it in the Indian Statute book. It is inappropriate in India, whichever, way one

'Paragraph 16- 62, supra.

2Cf. Hill v. Crook (1873), L.R.6 HL 265.
3L0veland, in re. (1906) 1 Ch. 542, 548.

'Holt V. Sindrey, (1869). 28 W. CH. 126,131,132.
50cclesmn v. Fullalove (1874) 9 Ch. 147, 160.
"Emphasis added.

S;ction|0() -1115,.
ll:Ll3l0l)(\ll) erm-
ctsm,

Uncet t.tint_v.

iltiaiitf
l he

poli; ' in

land.

Ocelestoifs ease.

Need for reconsi-
deration of illustra-
tion (vii).



120

views the matter. So far as proof of paternity is LJO"""':'!l*.'1l, the law in India has
never fought shy of any kind of U'vltlv.'i1('t.' on the :»Hi"ieCt.

As to the z1s;'cc.: of ],=l!i'l2 : 3,-nl.::y_ :.T:."~.; .\' :':»..1a«:rle;':rli!~.-. ivret: in the approach
in later ljnglish Cases", where the niatter lias been discussed at lengtli and in
passages which give convincing reaso1:s for the views e:\.pi'e'::>.e-.i.

p,0re7a:,P,,,ach_ 16.69. In our opinion. both ;r<:;:: the guristic point of view and on wider
considerations of social justice. 22 're:]uv.r inrue ch-ld, vtliether already
begotten or otherwise. sl10't:lti not l'-e ﬂfkle'-,l as aggtiiiiss, jnzbtg policy, There is
no provision in the 'l'ra1'.:\v'-r ts' l'1.,,.__ /xct ct'~='.:s;:v.':t.;'.'i,;i to section 100,
Illustration (vii), and we see iio 1'CL:s(m for :etaii.'i1g~: any nu-cli provision in
the law of testamentary suecestaio-'3.

  

.1 to an ih"'.:'

  
     

('1

  

Wider question of 16.70. lhits djseussioii 

 

     

   

policy as *0 16giti- section 100. The I'n'dj<'_);' qvcsz in re , ;:' '.l1'.'l1 :-='.  on: C' the sectioii is, how
mac)" far the law should, at this day. bar I,ll<."_{.'i'.l11121lL'» relatives from Ci'cll.l11lIl;_', under a

will by raising an adverse assumption. This question is concerned with section
100 as a whole. Of course, the section does not totally '.'~;'e'l'.  them from so
claiming, but entitles them to do so if, and only if, they izmc acquired the repu-
tation of being 'such relative.' it is a matter for consideration whether, at the
present day, the law ought not to be :no,e liberal.

 

Regorm in England 16.71. In this connection, 1'.C'iCl'6llL:\?~'fn£1:«"ht) inade to the statutory reform
' effected in England as to the post. on 03' 'ilCi[£ilill£1lt3 C;1{l(.ll"e'iT.

The relevant English provisions read as follows" :~--
"15.(1) In any disposition made ate: the coming into force of this section----

(a) any reference (whether express or implied) to the child or children
of any person shall, unless the contrary intention appears, be construed
as, or as including, a reference to any illegitimate child of that person;
and

(b) any reference (whether express or implied) is» a person or persons
related in some other manner to any person shall, unless the contrary
intention appears, lie C()l'.Si.,llC(l as, or as inclutling. a reference to any-
one who would be so  late. :1 if" he. or some other person through Wliom
the relationship is deduced, had been born legitimate.

(2) "The foregoing sub-section applies only where the reference in ques-
tion is to a person who is to Ireaiefn or to he ca};-alvle of bcnﬁting under
the dis sition or for the ur ose ot cl',-si<:natin<1 such a )crson to someone
P0 P P _ _ . 1 , .
else to or through whom that person 1S related; but that sub-section does
not aﬂect the construction of the word 'heir' or 'heirs' or of any expression

which is used to create an Cilitiiiftl inteisst. in real or personal property."

Recornmendationas 16.72. It seems to us that the time has come when a similar provision

t0secti0n100andt0 should be introduced in India in sis/7.»5;'/urisin of the rule in .m'.r'irm 100. Testators

insert 5°C' 100A' will, of course, be free to express a contrary intention. But. .in the absence of
expression of such a contrary intention, the law should now take a bold step and
regard illegitimate children as /2» 5122/1 far:'.~ included within the scope of relation-
ship. This would be in consonance with social justice. If a person begets an
illegitimate child. it would not. in _s:enc"al. be unrealistic to presume that he would
in making a testaincntary t.'i.ﬁpo:;':ioi~ Til;-_: to beneﬁt his lllC,?'.ltiU1.'1'C children as
well. There will be no interference with his freedom of disposition, as there
will still remain scope for the expression of a contrary intention by him.

But, subject to this safeguard, it would, in our view, be proper, as a matter
of social justice, to reverse the present rule which was framed at a time when the

W K'SeeV supra.
'See Occleston, para 16.67, supra.
'Section 150 \and 15(2), Family Law Reform Act, (1969)Chapter).



121

notions of society on the subject under consideration were much more rigid
than they are now.

16.73. If the reasoning put forth above is accepted, present section 100 should

be deleted and in its place the following inserted :

100(1) In any disposition made after the coming into force of the lndian
Succession (Amendment) Act--

(a) any reference (whether express or implied) to the child or children
of any person shall, unless the contrary iiitciition z1['i',)a."tll'S. be cons-
trued as, or as including, a reference to any illenitiiiiate cliild oi that
person: and I

(b) any reference (whether express or implied) to a person or persons
related in some other manner to any person shall, unless the contrary
intention appears, be construed as, or as including, a reteieiiee to any-
one who would be so related if he, or some other pegs-on liil\..,_t_fll whom
the relationship is deduced, had been born legitiiiiti 

"(2) Sub-section (1) applies only where the relcrence in question is to a
person who 's to beneﬁt or to be capable of bciieﬁtng under the diSp()SlII0ll
or, for the purpose of designating such a person as is entitled to succeed
to someone else to or through whom that person is related; but that sub-
section docs not affect the construction of the word 'heir' or 'heirs' or of any
expression which is used to create a limited interest in property."

16.74. As a drafting alternative, section 100 should be revised as under :--

"100. In the absence of any intimation to the conirary in a will, the word
'child' the word 'son', the word 'daughter', or any word which expresses
relationship is to be understood, not as denoting m:.'_§.' It i(:s,vi/iiiicitc relative
but also as including an illegitimate relarire."

16.75. We have, in the preceding discussion, made three alternative re-
commendations' as to section 100. This is because the SU.b_iCCl--m'dl[€f of section 100
is somewhat controversial from the social point of view. While we ourselves
would like to go to the utmost and replace section 100 by a provision reversing
the present rule, we appreciate that therewould be many who think that Indian
Soceity is not yet prepared for such a change in the law, laudable though the
principle of such a reform might be. If some such approach ﬁnds lavour with
those concerned--that is to say, if the most radical alternative of -replacing
section 100 by the opposite rule cannot be accepted--then certain other improve-
ments that are required in the present section should not be lost sight of.

It is for these reasons that we have suggested more than one alternative for
consideration.

16.76. Let us now explain, in brief. the purport of each alernative recom-
mended by us and how it ditlers from the others. Of the three alternatives, the
ﬂ tone is the mildest" and involves only a verbal improvement. According

rsthis alternative section 100 mail' P3T3£1T3Ph- and "I0 59'-'e"'h '°""l Cighth
t0 ' 9 _ I ' ' -' , 1m ;'x vc n for
. . 1d be amended, primarily to can s op. a
lﬂustranons to .that Section' W0" .3 . r v t b"iv out more clearly the
Comrarly mtelmllol} cXtFl)reStSx:((j) iiii1sttIi'C\tlt(:iiEdt0' and 0 mi' b J
rationac un<€1'>*111_2 10 r " c-
Tl ' cond alternative is soniewliat stroiiger than the first, but is still.a
'C See The substance of section 100 would be left in tact in its main
modzggh mtlhé pl-incipa1 change of substance being (by deletion of the seventh
at" '

Pmmation) abrogation of the rule (llI1'lE1tk21.beql.l5S3t to an unborn person to be
I - ' of lawful we oc is voi .'

the iuture out
iooml"

most radical one. It would mean not only a

alternative is thethe seventh illustration which, after all, is of a

[he third

' d in
_ 16 contains
the 'U 7
C K In 7   3up\'(1.
/leet>9'"5 $.63, 16.64, SUP"-

uraragfavhs 1  supfﬂ.
\6 'Q5 to \6 . 9
ggge 'Q3135

Recommendation as.

to section 100.

Cf. 15 Family Law
Reform Act, 1969
(c. 46).

Alternate draft.

Alternatives reco-
mmended as to sec-
tion 100.

Merits of each alter-
native.



1

., ..
3 4.'

limited ilppllL'tlllt)ll), but also :i ta-.,l.cal cliangc in the rule in the main paragraph
of the section winch L'illt)lLtC\:i'i ﬁe »\i::er held ot tights oi illegitimate ch.ldren
under [CSlLllllL.'lli2ll'_'y' d.sposit.:ii:s' in efieet, it would mean the total removal of
the (ll.S2ll)lll[lL'S--»---pt'C. ' ' , '_i1tLig;l"i they niay be--Aof illegitimate children pro-
vided in the p;e.~..-.nt ;~--.-encgi loo.

  

c0n5mutg0miquC,_ It."/7. it '~.v:;5i 3:»: -.'.o_=.~t.; 'th,:'. o..ir I'.:L?t)lllll1Cil(lLlilOl1S relating to the position

lions concerning of illegitimate CllllLil't,'il antler se-s.i<-ii lot) are based on sociological considera-

"g"""a°>'- tions relevant to the subject. We li1!\'t: not discussed the question whether the
prcsen: pt'.>visia>;; 2;: ,lL-J i:.. on ll}; ground of undue discrimination, hit
by article l4 of the Coiistitutztiii llie matter has arisen in the United States--
though in a slightly tlzilti-; ct :iti:~.t.' and, in general, courts have regarded such
provisions as '»'Oltl as viola  the cotistitutioiial requirements of equal protection
of the law.

EL"-.".l(':':\i

 

However, for the puiposvs of the preseiit discussion, we do not propose to
consider that aspect, since UH ': zt seetioii hill is coiistitutioiizilly valid,' there are,
as stated above, o her ;,,'t'l':I. '~i:.~ \=.,-*iich on the merits justify a change in the
present position.

Earner Report on 16.78. We iiitig. not-.: tint the lll£1'.1CvI' received consideration at some length

Workineifs Coin-in the Report of the Law (fiiiiiiiiissioii on the Workmcn's Compeiisatio_n Act

Pe"53"0" A" in the t't7l'i.L".'-LI oi the s--»p.; '21' 77:2 :.'"\l3lU,'wfSlV'll 'dependant'. Some of the foreign
precedents and constitutiontil provisions are also cited in that Report?

Compncan-om WhC_ l6.78A. in a C(7l1llEli.?Il'l on our '«'.'<>rkiiig_l'tipei' (forwarded through the letter'
[her likely to boot' the Catholic iiishops L();1lCi'\2E't'e of Eixdial. it has been stated that the pro-
Created. -posal regarding section lt)i'), coiiceriiing illegitiinate children as beneﬁciaries under
a will may create C()l'.ltJiiC('.9.;t7!'.S. 'Eh; eoninlellt says : "Anybody can make such a
claim on the pretext of being an illegitimate child. On the other hand, should
we put legitimate children on a par with illegitimate (children) ?" We have not
found ourselves in agreement with the approach shown in this comment, We do
not think that claims to willed property on the score of the claimant being an
illegitimate chil l wili we put by-'*aiiy'oody". There would be a natural reluctance
to put forth siicli clzunis, ii not llijilcslly believed in. We would also point out
that section 100 is coiiliiied to only one facet of the topic of illegitimate children's
position~naniely, the coiisinietioii of wills. The secxion, as recommended by
us, introduces only a rehuttable presumptioii.

16.79. This disposes of scstion I00. Section l0l deals with the rule of
construction that is to be applied where a will purports to make two bequests
to the same person. Under clause (a) of the section, where the same speciﬁc thing
is given to the legatee twice in the same will, or in the will and again in a codicil,
the lcgatee is entitled to take only once.

Section 101.

Under clause (b). where one and tilt: same will or codicil purports to make
to the same person two itC(}l!C\'l.\' tit' tie .'.»((I)[t' qimiiiiiy or amount of anything, he
shall be entitled to one such legacy only. These two clauses are obviously based
on the pl'CSUlllpli()ll pri/mi faeie a l't;L1SUl]ill3lt) Ont;-----[l1i1t in the circumstances dealt
with in the two clauses, the second bequest is merely a repetitive one and not a
new one. . -, ; ' 534'

Under clause (c). where legacies of unequal amount are given to the same
person in the same will or in the same codicil, he is entitled to both the legacies.

In the remaining cases, under clause (d). the legatee is entitled to both the
legacies? The rule is that legacies given by different instruments are prima facie
cumulative.

1Paragraphs 16.63 to 16.74. mpm.
'~'(a) Levy v. Louisiaiia. (1968) 391 US. 68.
(b) Gawcz V. Perez, (l 973) 109 U.S. 535.
"Law Commission of India. Glad Report (Woi'kmcn's Compensation 1923) (October, 1974),
pages 33,34, paragra phs 24 & 2 . 8.
'Letter of the Catholic 'Bishops' ('onfcronce of India, dated 3rd October, 1984.
5Cf. Re. Davis, (1957) 3 All E.R. 52, 54 (Vaisey J.).



1*:

16.80. The rules as given in section 101 could have been expressed in a No change in 5.
better way. However, it appears unnecessary to disturb the language of the 101-
section at this stage.

XII. Residuary Legatee

16.81. One of the more usual types of legacies is a residuary legacy, In Sectionloz.

brief, it is a legacy whereunder everything that is not otherwise disposed of is
given to the residuary legatee. What amounts to a residuary legacy is a matter
of great practical importance. How a residuary legatee may be constituted by
a will is provided for in section 102. Such a legatee will be constituted by any
words that show an intention on the part of the testator that the person designated
shall take the surplus residue of the property. The basic test is one of the inten-
tion, and no particular words are necessary. The reported cases on the section
have been gone through, and disclose no need for amending the section.

16.82. The rights of a "residuary legatee" (an expression already deﬁned Section 103.

in section 102) are dealt with in section 103. 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 by testamentary disposition which is capable of
taking effect. This section corresponds to an English statutory provision'- on the
subject. .

The case where the residue lapses is dealt with later?

16.83. It appears from the case law that there is some obscurity on the pm It notknown
question whether, by virtue of section 103, property whose existence was not ME: gistatol-_
known to the testator passes under a residuary bequest. The widelanguage of
the section justifies an alﬁrmative answer to this query. In fact, such an answer
has been given in a Calcutta case'. But in later decision'-5, it was held that the
wider rule should not be applied in construing the wills of Hindu testators.

16.84. In View of this conflict of decisions, we have considered the que_stion Context as disc]os_
whether an amendment by way of clariﬁcation is needed, in section 103 in regard ipg dmeremoomen-
to property not known to the testator. "on-

In dealing with this question one has to bear in mind certain rules of
construction. As is provided' by section 83, general words in a will may be
understood in a restrictive sense, where the will discloses such an intention. This
is illustrated by an English case also,' on which section (ii). is based. The pro-

. visions of the Indian Succession Act relating to the construction of wills----sections

74 to 90, and particularly section 83-would be material in answering the question,
"What passes under a residuary bequest 1'".

16.85. This position, it seems to us cannot be remedied by any speciﬁc
statutory provision. The decision in each case will depend on the facts. No I';°.°ha"$° 51"g33°"'
attempt will, therefore, be made to suggest any amendrnent of section 103 on e m "won '
the point under discussion (i.e. on the question how far property whose existence
is not known to the testator, passes under a residuary bequest).

XIII. Time of vesting of legacies

16.86. Having disposed of rules concerning the property over which a will swion 1o4_
operates, the legislature now turns to the question of time of vesting of legacies.
Section 104 deals with the time of vesting of legacy in cases when there is no
postponement of payment or possession. The case where possession or payment
is postponed, is dealt with later'. Section 104 provides that if a legacy is given

'Section 25, Wills Act, l837(Eng.)

'Section 108.

'Fanindra v. Administrator General, (1905) 6 CWN 321.

'Subodh Chandra v. Bhubalik, (1933), I.L.R. 60 Cal. 1406.

'Kunthalammal v. Suryaprakasaraya. ILR 33 Mad. 1906, 29 Mad. L.J. 682.
'Section 83, Illustration (ii).

7Cook V. Oakley, I.P. Williams, 302.

'Section 119.

85-L,'B(D)l44MofLJ&CA--9



12-1}

, in general terms, without providing for the speciﬁc time when it is "to be paid",
the legatee has a vested interest in it from the day of the death of the testator,
and if he (the legatee) dies without having it, it shall pass to his representatives.

Section applicable 16.87. The underlying principle is that the law favours the vesting of pro-

'° "" "'°P°'"°S'perty. Although section 104 uses the words "to be paid"--words which are not
appropriate for denoting movable property--there is no doubt that the section
is to be read as applicable to devises of immovable property, as well as to beqyests
of movable property'. In this position we have no change to recommend in this
section.

Sﬁtion l05--lapse 16.88. This takes us to section 105. It provides as follows: --
o e a .
3 Cy "105. (1) If the legatee does not survive the testator, the legacy cannot

take effect, but shall lapse and form part of the residue of the testator's
property, unless it appears by the will that the testator intended that it
should go to some other person.

(a) 'In order to entitle the representative of the legatee to receive the legacy,
it must be provd that he survived the testator.

ILLUSTRATIONS

(i) The testator bequeaths to B "50O rupees which B owes me". B dies
before the testator. The lekacy lapses.

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

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

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

(v) A sum of money is bequeathed to A on his completing his eighteenth
year, and in case he should die before he completes his eighteenth year,
to B. A completes eighteenth year and then 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 shows, which dies first. The legacy lapses?"

Illustrations to sec- _ _ _ _
tion 105 analysed. 16.89. The six illustrations to the section may now be analysed. Illustra-

tion (i) takes a simple case of lapse of bequest. Illustration (ii) is also a case
of lapse, and rightly assumes that a bequest to "A and his children" is not to be
treated as a separate gift to the children of A, but merely connotes' the quality of
As interest. Illustrations (iii) and (iv) are cases where a different intention
appears from the will, so that the thing bequeathed does not go as residue. They
also illustrate the operation of the rule in sub--section.

Illustration (V) illustrates the ﬁrst sub--sectioi1 of section 105, namely, that
if the legatee does not survive the testator, the legacy cannot take effect. The
alternative bequest to B does not take effect in this case, because the gift to B
is conditional on A's death before completing his enghteenth year~-- a condition
not fufilled on the facts in this case, as put in the illustration.

Illustration (vi) to the section relates to the very interesting situation des-
cribed in juristic writings as "commorientis."3

16.90. Section 105 states the rule as to lapse of legacy in general terms,

B"°'P'i°n5.'° 'h': but there are certain other provisions also in the Act, constituting exceptions to
rule in section 105.

'Stokes. Succession Act, page 73, cited by M.N. Basu, Succession Act, (1957), page 329.
'-This is the situation of commarientis. See paragraph 16.91, Infra.
"For detailed discussion of illustration (vi), See paragraph 16.91, infra.



125

this rule, or qualifying or explaining its operation. For example, according to
section 96, if an alternative bequest is provided for in the event of the legatee
pre-deceasing the testator, the person or class of persons named in the second
branch of the alternative shall take the legacy. Illustration (iv) to section 105 also
provides that in the case of legacy to a legatee for life with remainder to another
legatee, the legacy would not lapse, if the tenant for life dies before the testator.
The legacy then goes to the other legatee_ Section 106 lays down that if a legacy
is given to two persons jointly, and one of them dies before the testator, the
other legatee takes the whole. Then, under section 109, in the absence of a
contrary intention in the will, a bequest to 3. child or other lineal descendant of
the testator does not lapse, if the child or other lineal descendant dies before
the testator. Section 110 provides that where the bequest is to a trustee for the
beneﬁt of another and the trustee dies before the testator, the bequest does
not lapse.

Lastly, under section 116, where a bequest is made to a class of persons,
the thing bequeathed shall go only to such of them as are alive at the testator's
death. These provisions are all in the nature of qualiﬁcations of the general rule
in section 105.

16.91. Illustration (vi) to section 105 possesses the greatest juristic interest, section 1o5-i11usn-5,-
dealing, as it does, with the situation of 'commorientes'. It reads as follows : tiotn (Vi), commoti-
en 65.
"(vi) The testator and the legatee perished in the same sliip-wreck. There
is no evidence to show which dies ﬁrst. The legacy lapses."

16.92. It is the situation that requires some comment. The case law on P1-esumpﬁonregard-
the point may ﬁrst be brieﬂy stated. In at Bombay case', the question regarding ing the 'younger'
the survivorship of the 'younger' to the 'elder' came up. Two persons----the--unCle 5"'ViVi"8 31° 'elder'-
aged 60 years and his nephew aged 18 years--had died on the same day. There '
was no positive evidence as to who died earlier. The High Court held that the
probabilities were in favour of the younger man surviving the elder.

This question also came up before the Oudh Chief Court in 1934." Two
brothers died in a ﬁre. The widow of one of them claimed the entire property
on the ground that her husband, being the younger of the two, must be deemed
to have survived the other. It was held that there was no such presumption in
the absence of direct evidence and that the onus of proof was on her. Since she
failed to prove it, her suits was dismissed.

16.93. This question also came up before the Chief Court of Sind in 1939.' _
A woman and her daughter had died together in an earthquake. There was no Smd °35°- '
evidence as to which of them died ﬁrst._It was held that there was no presumption
in law that older died before the younger.

16.94. The question also came up before the Calcutta High Court in 1944.' Calcutta case
Several persons had died in a common..._boat disaster and the question arose who '
had survived. The High Court held it was a question of fact. There was no
presumption of law in this respect. The evidence in the case did not establish
the survivor-ship of either the husband or the wife.

16.95. A similar question also arose before the Privy Council in 1944.5 privy Counci[Case_
A man and his wife had died together in an earthquake. The wife was younger
than her husband.. The Privy Council held that there was no presumption in law

that the younger had survived the elder.

16.96. So much as regards the cases under the general law. _It may be Case 'aw under
mentioned that section 21 of the Hindu Succession Act, 1955, provides a pre--~ Hindu succession
sumption in this regard. Some questions that arose after the Act was passed in Act.

 

'Y.N.KuIL-arm' V. Laxmi Bai, AIR 1922 Bombay, 347.
'Mt. Nekshi Kaur v. Nit. Jawala Kaur, A.I.R. 1934 Oudh 101.
3Smt. Copibaiv. Chumhermal Mulchand, A.l.R. 1939 Sind 234.
'Disendra Kumar v. Kuti Mian, A.I.R. 1944 Cal. 132.

'Agha Mir Ahmed v. Mudassir Shah, A.I.R. 1944 P.C.100.



American Law.

Section 106-Joint

legacy.

126

1956 may be noted. In all the reported cases "3 close relations like husband and
wife (and, in two cases, mother and daughter) had died in circumstances where
no evidence of survivorship was available. In all the cases, the courts relied upon
the presumption enacted in section 21 of the Hindu Succession Act to the effect'
tha it shall be presumed, until the contrary is proved, that the younger survived
the elder. As already stated) the Report of the Law Commission on the Evidence
Act deals with this point speciﬁcally.'

16.97. Besides the material mentioned above or referred to in the Report
of the Law Commission on the Evidence Act,' reference may be made to the
(American) Uniform Simultaneous Death Act?

The principal provisions of the Uniform Simultaneous Death Act read as
under :~---

"I. No suﬂicient evidence of survivorship.

Where the title to property or the devolution thereof depends upon priority
of death and there is no sufficient evidence that the persons have died
oherwise than simultaneously, the property of each person shall be disposed
of as if he had survived except as provided otherwise in this Act."

2. (Survival of Beneficiaries).

If property is so disposed of that the right of a beneﬁciary to succeed to
any interest therein is conditional upon his surviving another person, and both
persons die, and there is no sufficient evidence that the two have died other-
wise than simultaneously, the beneﬁciary shall be deemed not to have sur-
vived. If there is no sutﬁcient evidence that two or more beneﬁciaries have
died otherwise than simultaneously and property has been disposed of in
such a way that at the time of their death each of such beneﬁciaries would
have been entitled to the property if he had survived the others, the pro-
perty shall be divided into as many equal portions as there were such bene-
ﬁciaries and these portions shall be distributed respectively to those who
would have taken in the event that each of suchbeneﬁciaries had survived."

XV. Joint legacies and distinct legacies.

16.98. Under section 106, if a legacy is given to two persons jointly and
one of them dies before the testator, the other legatee takes the whole under the
section. This section is understood as dealing with a bequest to two or more

persons as 'joint tenants', in contrast with section 107, which is understood as
dealing with a beﬂluest as 'tenants in common.' These expressions do not occur in
the section, but- ey are convenient for indicating the two categories contemp-
lated by sections 106-107. Under section 107, if a 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 testﬁor, his share falls into the residue.

16.99. Section 106, has, however, given rise to a "considerable amount of

cw' 1"' °° 5°i"' case law on the above point, and in each case, the court has had to determine,

tenancies.

after some controversy and effort, whether the bequest was intended to be joint
or sveral. It has even been held,_° that if a gift does not, in any way, indicate
an intention to create a tenancy in common, the presumption will be in favour

'In the matter ofMahab1r Singh, AIR 1963_ Punjab 66 (Hindu Succession Act).
'Jag/arztilal v. Mehta Chhanalal. A.I.R.l968 Gujarat 212 (Hindu Succession Act).

"D.Fadmar1a Setty v. Gyam'/zandrappa, A.I.R. 1970, Mysore 87 (Hindu Succession Act).
'Compare section 184, Law of Property Act, 1925 (English).
5Para 16.91, supra.

'Law Commission of India, 69th Report (Evidence Act)-~Ch. 50.
'l.a»\ Commission of India, 69th Report (Indian Evidence Act).

"Sections 1 -2, Uniform Simultaneous Death Act.
'Amok! v. D.1min_eo (1910) I.L.R. 34 Mad. 80 (S.B.) (case on section 93 of the 1865 Act) contrast,



l27

of a joint tenancy. It was also observed that the same principle is applicable to
wills as to gifts, unless there are special rules justifying a deviation.'

16.100. To illustrate what is stated above, it may be useful to refer to Illustration from
the facts of a reported Madras case.' A person made a registered will, bequeath-- '°P°''°d 935'-
ing certain properties to his second wife and her only daughter. The daughter
predeceased the testator. After the death of the testator, a second daughter was
born to the second wife. hhe was the plaintiff in this case. The defendants were
the sons of the son of the testator by his ﬁrst wife. The following pedigree will
make the facts clear : -

Wife (0 :_- Testator r---- Wife (2)
Son  , . . , . . . . , . . . . . . . . . . . . . . . . . . . . .
(deceased) : :

2 Daughter (1) Daughter (2)
(Four sons) (Predeceased) (subsequently
(Defendants in born--plaintiﬁ'

the case) in the case).

Prior to this will, the testator had divided himself from his sons, and they
were living separately, the properties comprised in the will being the separate
properties of the testator.

The plaintiﬂ, (second daughter born to second wife) alleged that on the
death of the testator, the second wife had taken possession of all the properties.
She (the second wife) left a will, bequeathing all the properties to the plaintiff.
The suit was for preventing the defendants from trespassing on the property in
dispute.

The contention of the defendants was that as the ﬁrst daughter predec_eased
the testator, her half share fell into the residue of the testator's properties and
that the defendants were entitled to the same as their father's heirs.

The trial court accepted the plaintiff's claim that the mother became the sole
legatee of the entire property on the death of her ﬁrst daughter. On ﬁrst appeal,
the subordinate judge, and in second appeal the High Court afﬁrrned the ﬁndings
of the trial court. Hence the present Letters Patent Appeal.

16.101. The ﬁrst question considered by the High Court was whether the
rule of English conveyancing that gift to two persons with words of limifation
prima facie constitutes a joint tenancy between them, should be imported into the
construction of a Hindu will. On a review of cases, the court came to the oonclu-
sion that the principle of joint tenancy was unknown to Hindu law, except in
the case of joint property of an undivided Hindu family governed by the Mimic-
shara Law which, under that law, passes by survivorship.' However, relying on
some cases, the court held that this did not mean that because the principle of
joint tenancy is unknown to Hindu Law outside the coparcanary, there can
never be a bequest to be taken by two persons jointly} Therefore, there could
be a joint gift in favour of two persons, even when the parties are Hindus. But,
in this particular case, on an interpretaton of the will, the High Court came to the
conclusion that the parties were tenants-in-common. -

16.102. Relying on an unreported case, the court held_ that though section
106 occurs under the chapter headed "of construction of wills", it is not a rule
of construction of a will, but is a provision for devolution.

Mankumma Kunwar V. Balklshan Dar, (1 906) I.L.R.28 All .38.
. 1There is no case law on section 106 in 1970 to 1982, laying down any new point.

'.S't'mtarai v. Ramayee Animal, A.I.R. 1969 Mad. 96.
"(a) Alt. Reoti Devi, v. Rajandra Paksh Singlt. A.I.R. 1933 P.C.72, 75.

(I7) Bhagwan v. Reoti Devi, A.I.R. 1962 S.C. 787.
'Nanci! Sing}: v. Sitaram. (I 889) I.L.R.l6 Cal. 677 P.C.



128

Regarding section 107, a plea was raised that if speciﬁc expressions provi-
ding for the legatees taking distinct shares were not found in the will, the will
can be interpreted as amounting to a joint gift and section 106 should be applied.
The court refused to accept this argument.

In construing the will, the High Court relied on the following principle :

"Equity favours the construction that legatees were to take separate shares
as tenants-in-Common and hence the court would utilise even a very slight
indication of such an intention, to draw that inference?"

Ultimately, the court came to the conclusion that the legattes were tenants~
in-common. The case was, however, remanded to the trial court for recording
extra evidence on a matter not relevant for the present purpose.

Criticism of section 16.103. Reverting to section 106, it appears to us that the section... and

105 35 ""'°°a"5''°- some of the judicial decisions thereon} somehow appear to proceed on an unreali-
stic basis,--unrcalistic so far as lndian society is concerned. Indian testators
hardly, if ever, contemplate that if a legacy is given to two persons, and one of
them died before the testator, the other should take the whole. Courts in India
lean against joint tenancies?-4 Oridinarily, the intention of an Indian testator in
India would be not to beneﬁt the other person in such a situation, but to allow
his share to fall in the residue.

In fact, in most of the reported decisions on the subject, courts have_ ulti-
mately regarded the case as falling under section 106, and have construed the
words of the will as showing that the testator "intended to give them distinct
share". But this conclusion has been reached after considerable amount of debate
in each case. In our view, there is no reason why some simple method of reducing
the scope for such controversy should not be devised.

Recommendation 16.104. In view of what we have stated above, we recommend that the pre-
to. amend section sumption should be the other way, namely, if the will does not, in any manner,
107. indicate an intention that the two persons are to take it jointly the presumption
should be in favour of a tenancy in common. We recommend that the law should
be amended, by adding an Explanation to section 107 somewhat in these terms :

"Explanation---If the will does not, in any way indicate an intention that the
legacy is given to two persons jointly, it shall be presumed that the testator
intended to give them distinct shares of it.'

16.105. Section 107 reads as under':

"If a legacy is given to legatees in words which show that the testator in-
tended 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.

ILLUSTRATION

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

Section 107 is dependent on it being ﬁrst established that the testator intend-,
ed to give two or more lcgatees distinct shares--in contrast with the case dealt
with in section 106, where a legacy is given to two persons jointly. Whether the
one or the other section applies, depends on the view that the court takes as to
the nature of the legacy i.e. whether it is held to be joint or several.

'Robertson V. Fraser, (1871) Ch. A 606.
'ArakaI v. Demingo, I.L.R. 34 Mad. 80.
"Mt. Balm Rani v. Rajendra, A.I.R. 1933 P.C.72; 60 I.A. 75; 64 M.L.J. 365 (P.C.).

'See also Jankibai v. Slaha, A.1.R. 1961 M.P. 139, 140.
'To be added to section 107.



12')

16.106. We have, while discussing section 106, already' made a recom-
mendation for amendment of section 107. No further, comments are needed, but
it may be stated that fairly recent judicial decisions? show that the court more
readily infers a tenancy in common than a joint tenancy.

XVI. Elfect of lapse and analogous situations

16.107. According to section 108,' where a share which lapses is a part of the sgcﬁon mg _- Lap,
general residue bequeathed by the will, that share shall be treated as undisposed of part of scam!
of. The illustration to the section states that the testator bequeathes the residue '°5'd"°-
of his estate to A, B and C, to be equally divided between them. A dies before
the testator, his one-third of the residue goes as undisposed of.

Section 103 may be contrasted with section 108, while, under section 103,
a legacy that lapses will form part of the residue and will go to the residual
legatee, section 108 comes into operation when the residue itself lapses by the
death of the residuary legatee before the testator or in any other manner. Where
the residue is undisposed of or lapses, it will go as on intestacy.'

Where there are several residuai-y legatees. who are given the residye as
tenants is common, the share of any one who dies in the lifetime of the testator
will lapse, and will not augment the remaining parts of the residue, but will, by
virtue of section l08,dcvolve as undisposed of.

No changes are needed in this section.

16.108. Under section 109, where it bequest has been made to any child Section w9_b°q at

or other lineal descendant of the testator, and the legatee dies in the lifetime of the go Iinga] dmwdint
testator, but any lineal descendant of his survives the testator, the bequest shall not dying in lifetime of
lapse, but shall take eﬁect as if the death of the lcgatee had happened immedia- '°5t3'°'-
tely after the "death of the testator, unless a contrary intention appears by the will.
Stated in a simpliﬁed form, the proposition intended to be enacted is that there
is no lapse of the bequest if the legatee, being a child or other lineal descendant
of the testator, himself leaves a lineal descendant who survives the testator. The
legal fiction created is that the bequest shall take effect as if the legatee died
immediately after the death of the testator. A notional distribution of the potential
share of the legatee would then be made. This section is an exception to the
general rule of 'lapse' in section 105.

The expression "child" in the section includes 'children" also.'

16.109. The expression 'lineal descendant' occuring in the opening part of M . __
section 109 includes male as well as female lineal descendzmts,' of the testator. degfggﬁnﬁf 1"'"1
No clariﬁcation is needed on this point. With reference to the same expression '
used for the second time (in relation to the lineal descendant of the legatee), it
does not extend to any other heir,' but it should also be noted that once the V
condition of the existence of a lineal descendant is satisfied, then the beneﬁt
(under the last part of the section}, is available to every heir of the legatee,
and is not conﬁned to heirs who are lineal descendants of the legatee,

The above propositions are oilered merely by way of elucidation. The se-
tion itself needs no change.

l6.l09A. By the Administration of Justice Act, 1982, the earlier English 5135 to children:
provision in section 33 of the Wills Act, l_837 has been revised in regard to recent reform in
gifts to children or other issues who leave issue living at the testator's death. E"8""'d-

'See discussion as to section l 06.

°Sanjeeva Raddy v. Akhilendamual, l.L.R. (1968) 1 Mad. 138.
BParuck, Indian Succession Act, (1977), page 262.

'Tolsevdas v. Premji, I.L.R. 13 Bom.6l .

-'Shanta' v. Blmgwan, AIR 1984 page 313; Para 10.

"Bhim Natl: V. Smt. Tara, A.I.R. 1929 P.C. 162.

7Mohammed v. Aziz-an-Nissa, A.I.R. 1935 Oudh 437.



Section 110.

Gifts to spouses:
recent reform in
England.

Section lll»--~Survi-
vorship in case of
bequest to described
class.

1.50

The most important
under :--

provision is in section 33(1) (as revised), reading as

"33.( 1) Where---

(a) a will contains a devise or be
dant of the testator; and

quest to a child or remoter descen-

(b) the intended beneﬁciary dies before the testator, leaving issue; and

(c) issue of the intended beneﬁciary are living at the testator's death,
then, unless a contrary intention appears by the will, the devise or bequest
shall take eﬁect as a devise or bequest to the issue living at the testator's
death."

A similar provision has been made in section 33(2) regarding gifts to a
class which consists of children. Other incidental provisions have also been made.

16.110. We now proceed to section 110, which provides that where a
bequest is made to one person for the beneﬁt of another, it does not lapse
by the death (in the testator's life time)» of the person to whom the bequest is
made. The rationale of the section can _be easily discerned. The principle is,
that the law looks to the real beneﬁciary, and not to the nominal owner, who is
merely the medium through which the gift is made. His death therefore (that
is, the death of the nominal owner) should make no difference to the subsistence
of the gift. The section does not appear to need any change.

16.1l0A. In England, in regard to gifts to spouses, section 22 of the
Administration of Justice Act, 1982, implementing a recommendation of the
Law Reform Committee,' introduces a presumption. The object of the section
is to cover cases where, for example, the testator makes a gift of all his pro-
perty "to my wife and after her death to our children." This type of bequest,
often found in home-made wills, would normally be interpreted as conferring
only a life interest on the wife, because of the need to preserve the remainder
to the children. Generally, however, this is contrary to the intention of the
testator who really intends to give the property exclusively to his wife, but to
have a say over its ultimate destination. Section 22 of the Administration of
Justice Act, 1982 now provides as under :-- -

"22 Except where a contrary intention is shown, it shall be presumed that
if a testator devises or bequeaths property to his spouse in turns which in
themselves will give absolute interest to the spouse, but by the same
instrument purports to give his issues an interest in the same property, the
gift to the spouse is absolute notwithstanding the purported gift to the
issue."

16.111. This takes us to section 111. Section 111 reads as under :--

"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.

Excepti0n--If property is bequeathed to a class of persons described as stand-
ing in a particular degree of kindred to a speciﬁed individual, but their
possession of it is deferred until a time later than the death of the testator
by reason of a prior bequest or otherwise, the property shall at that time
go to such of them as are then alive, and to the representatives of any of
them who have died since the death of the testator.

ILLUSTRATIONS

(i) A bequeaths 1,000 rupees to the "the children of B" without saying
it is to be distributed among them. B had died previous to the date of the
will, leaving three children C, D, 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.

'Law Reform Committee, Report on the Interpretation of Wills (1973), cmd. 5301,



131

(ii) A lease for years of a house was bequeathed to A for his life, and
after his decease to the children of B. At the death of the testator, B
had two children living, C and D, and he never had any other child.
Afterwards, during the lifetime of A, C died, leaving E, his executor. D has
survived A. D and E are jointly entitled to so much of the 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 B. At the death of the testator, B had two
children living, C and D, and, after that event, two children E and F were
born to B. C and E died in the lifetime of A, C having made a will, E having
made no will. A had died leaving D and F surviving her.

"The legacy is to be divided into four equal parts, one of which is to be
paid to the executor of C, one to D, one to the administrator of E and one
to F." '

(iv) A bequeaths one-third of his lands to B for his life, and after his
decease to the sisters of B. At the death of the testator, B had two sisters
living, C and D, and after that event another sister E was born. C died
during the life of B, D and E have survived B. One--third of A's land
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 childden of C. Up to the death of B, C had not had 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-bom child of B.

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

The section needs no change.

CHAPTER 17

Void Bequests: Sections 112 to 118

17.1. Void bequests are dealt with in sections 112----118. Assuming that Scope,

a will is formally valid and has been made by a testator competent to make it
and raises no questions of construction, problems may still arise by reason of the
fact that a particular bequest made by the will is void in law. A bequest may,
for example, be void if the beneﬁciary contemplated by the description given in
the will does not exist at the time of death or other material time (section 112
read with the Exception and the illustrations to the section). This is a case of
impossibility or failure created by external circumstances. More frequent is the
case where the bequest is void because it violates a statutory mandate laid down
in the Act. On certain grounds of public policy, the law has inserted certain pro-
hibitions concerned with remoteness, perpetuities, accumulations and hasty gifts
to charities. Thetse are to be found in sections 112 to 118.

17.2. Section 112 reads as under:---- S°cm5n"2_B¢qucs

"112. Where a bequest is made to a person by a particular description and jftéglgjrsgggzipggi
there_is. no person in e'<_istenc_e at the testator's death who answers the who is not in em
dCSCl'lpi.l0l1, the bequest 1S \'Ol(l. tenee at testaton
death.
E.\'Cepti0n:----lf property is bequeatlied to a person described as standing
in a particular degree of kindred to a speciﬁed individual, but his possession



Section ll3-Beque-
[to person not in
txistenoc at testa-

pr's death subject

10

1
i
I

i
E
1
E
1

prior bequest.

mmendation in

Law Commi-
'on Report on the
ransfer of Property
ct.

132

of it is deferred until a time later than the death of the testator, by reasons
of a prior bequest or otherwise; and if a person answering the description
is alive at the death of the testator, or comes 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"?

This section needs no change.

17.3. This takes us to section 113. It reads as under:--

"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, I the
latter bequest shall be void, unless it comprises the whole of the remaining
interest of the testator in the thing bequeathed."

The section broadly corresponds to section 13 of the Transfer of Property

Act. Section 13 of the Transfer of property Act, 1882, provides as under:--
13. Where, on a transfer of property, an interest therein created for the
beneﬁt of a person not in existence at the date of the transfer, subject to a
prior interest created by the lsame transfer, the interest created for the
beneﬁt of such person shall not take effect, unless it extends to the whole
of the remaining interest of the transferor in the property".

17.4. The Law Commission in its Report on the Transfer of Property Act,
1882" recommended that section 13 of that Act should be deleted, or, in the
alternative, some changes (set out in the Report) should be made in the section.
This recommendation3 was made after a consideration of the diﬂiculty created
by the Privy Council judgment in Sopher's case' and after taking note of the
legislation passed in the erstwhile State of Bombay on the subject, modifying
the eﬁect of Sopl2er's case.

17.5. The Law Commission noted that the language of section 113 of the
Indian Succession Act, 1925 had been very restrictively construed by the Privy
Council in Sopher v. Administrator-General of Bengal} In that case, a testator
bequeathed the income of his residuary estate to unborn grandchildren who
should be born during his widow's lifetime, if they should survive their fathers,
and also bequeathed to them the corpus of the residuary estate if they should
attain the age of 18. The Privy Council held that both the gifts failed under
section 113. The gift of income was void because since it was dependent upon
the legatees surviving .their father it did not comprise the whole of the testator's
remainder in trust, and the gift of the corpus failed for the same reason, and for
the additional condition that the legatees must attain their majority. This decision
was regarded as a surprising one by the Indian legal profession.'

Viscount Maugham, in delivering the judgement of the Judicial Committee,
made the following observations' :--

(K

. . . . ..that if, under a bequest in the circumstances mentioned in sec-
tion 113, there is a possibility of the interest given to a beneficiary being
defeated either by a contingency or by a clause of defeasance, the bene-
ﬁciary under the later bequest does not receive the interest bequeathed in
the same unfettered form as that in which the testator held it and that the
bequest to him does not therefore comprise the whole of the remaining
interest of the testator in the thing bequeathed."

It was, therefore, held that the bequest, being not of the whole of the

interest of the testator, was void.

'Compare section 111, Exception.

'Law Commission of India, 70th Report (Transfer of Property Act) paras 21 .8 to 21 .13.
'See Para 17.6, infra.

'Sopher v. Administrator General of Bengal, (1944) L.R.7l I.A. 98 P.C.; AIR 1944 P.D. 67.
5Sopher v Administrator General of Bengal, (1944) L.R. 71 I.A. 98:A.I.R. 1944 P.C.67.
'Framroze v. Tehmina, A.I.R. 1948 Bombay 188.

"Sopl1er V. Administrator General of Bengal AIR 1944 P.C.67, 70.



133

17.6. This decision created Certain problems, noted by the Law Commis- l)iscussionincIr1i¢t~
sion in its Report on the Transfer of Property Act.' The following is an extract Report
from that Report."

"21.8. Effect of S0pIzer's case : As has been pointed out by a writer on the
Law of Succession} the decision in Sopher's case" upset the view of the legal
profession which, upto then held that if to an unborn person the whole of
the remaining interest was given, that would be suﬂicient compliance with
the provisions of section 13 and section 113 respectively, and the con-
tingency of attaining majority or surviving a certain person or the condi-
tions attached to the gift or bequest or any provision reserving power to
revoke the trust, did not violate the law. Since this view was held to be
erroneous by the Privy Council in S0pher's case, there was public agitation
and, in fact, a Bill was introduced in the Central LegislativevAssembly'
"proposing to omit section 13 and section 113. The Bill did not become
law, but the Bombay Legislature passed in 1947 an Act to validate dis-
positions made previously on the basis of previous understanding, of the
Law."

"21.9. The application of section 113 of Succession Act to certain disposi-
tions of property in the erstwhile State of Bombay is restricted by the
Dispositions of property (Bombay) Validation Act, 54 of 1947 (an Act
to validate certain dispositions of property in the Province of Bombay)
which came into force on 16th January, 1948, as under :5

"2. This Act shall apply to all trusts made and to all wills and other testa-
mentary dispositions of persons who have died, before the first day of
January one Thousand nine hundred and forty--ﬁve.

"(a) Where such trusts, wills, or testamentary dispositions relate to
immovable property situated within the Province of Bombay;

(b) Where such trusts, wills, or testamentary dispositions relate to property
of every description other than immovable property and are declared,
executed or made by a settlor or testator, as the case may be, in the
Province of Bombay, notwithstanding anything to the contrary contained
in Part [I of the Indian Succession Act, 1925.

"3(1) Validation of certain dispositions---

The following provisions of law shall not apply and shall be deemed never
to have applied to the dispositions of property contained in or made by the
instruments mentioned in section 2, namely, (a) section 13 of the -Transfer
of Property Act, 1882, and (b) section 113 of the Indian Succession Act,
1925."

(2)1 The dispositions of property contained in or made by the instruments
mentioned in section 2, the enactments mentioned in the ﬁrst column of the
Schedule to this Act shall apply, and be deemed to have always applied,
with the omissions and modiﬁcation speciﬁed in the second column of the

Schedule.

"4. Savz'ng----Nothing in this Act shall be deemed to affect or pre_iudice in
any way any right, title or interest accrued to any person under a ﬁnal decree"
or order of a competent court or acquired by any person for valuable
consideration before the coming into force of this Act.

(Schedule not reproduced)."

1Law Commission of Indi 70th Report (Transfer of Property Act).
370th Report, paras 21 .8 to 21.13.

3Paruck, Indian Succession Act (1966), page 238.

'Saphvr v. Administrator General of West Bengal, A.I.R. 1944 P.C.67.
5Transfer of Property and Sutxtession (Amendment) Bill, 1946 (Gazette of India, Part V, Pag°

92, dt. 16-2-1946).
'Dispositions of Property (Bombay) Validation Act (Bombay Act 54 of 1947).



134

The Commission further proceeded to observe:----
"2l.l0. Reconmiendatioii to repeal section l3--

We are of the view that having regard to the fact that there is also in
force the rule against perpetuities, it is not necessary that the rule _ in
section 13 should be continued on the statute book. This section seem-s to
have been suggested by the "corresponding section in the Succession Act,
and the Report of the Law Commis'sion relating to the Succession Act,
1865, merely states that it has been provided that the interest to be given
to the unborn child must extent to the whole of the interest. Having regard
to the fact that the object of the law to prevent provisions fettering the
free circulation or postponing the vesting of property is suﬂiciently achieved
by section 14, we think that section 13 should be deleted, Even if the
unborn person is allowed to take a limited interest, the subsequent interest
must vest within the period allowed by section 14 and this, in our view, is
enough as a safeguard".

"21.1l. Alternative recommendati0n--However, if it is decided not to
delete the section, it is, in our view, necessary to make it clear that condi-
tions of the nature involved in Sopher's case which, while riot restricting
the quantum of interest of the unborn person, make it defeasible or affect
the certainty of' its vesting, are not to be con'strued as violating section 13.
21.12. Child in the womb---It is also necessary------if the section is retained-
to add an Explanation to the eﬂect that a child in the womb, if born alive,
is not deemed to be an unborn person. Such an addition would be merely
codifying the judicial construction." _

R:'l=9m1I':¢"d3:i"1?g' 17.7. The discussion in the earlier Report ends with the following recom-

;'c,;'_" °p°' ( ' 'mendations:--
"Our recommendation, then, is that----
(a) Section 13 should be deleted;

(b) In the alternative, that is to say, if section 13 is retained, clariﬁcation
as suggested above should be made on two points, namely :--

(i) the scope of the expression "extends to the whole of the remain-
ing interest" should be explained; and

(ii) the case of child in the womb should be dealt with expressly".

Reconmcndmonas 17.8. We have quoted in extenso the discussion in the earlier. Report of

to mtion 113,suc-'l13 law Commission, as the reasoning is equally applicable to section 113 of

cession Act. the Succession Act. In fact, the decision in Sop/,1er's case'. which was one of the
important background materials considered in the earlier Report, was rendered
on a construction of section 113 of the Succession Act.

In the light of the above discussion, we recommend that section 113 should
be amended on the lines stated above, if it is not deleted totally.

. "4_R I 17.9. This takes us to section 114. Section 114 provides that no bequest
E§§;:,°s':perpct:',ify_ 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.

Rwommendmons . 17.10. The section corresponds to -section 14 of the Transfer of Property
made in Report 0,, Act. The Law Commission has, in its Report on that Act, recommended' certain
Tx'ansferofProperty changes in section 14. Similar amendments should be made in section 114,
A°'- Succession Act also. which is in pari materia with section 14.

The matter was put in that Report in the form of propositions as follows :--

"(l) Proposition 1

In applying section 14 to an interest in property limited to take eﬁect at
or after the termination of one or more life interest of persons in Being

~...__ . ___

'Sopher v. Adm. General of Bengal, A.I.R. 1944 P.C. 67.
'Law Commission of India, 70th Report ('Transfer of Property Act) paras 22.50 to 22.55_



'.zJ
'J I

when the period mentioned in section 14, commences to run or on or after
the termination of lives of persons in being when such period commences
to run, the validity» of the interest shall be determined on the basis of the
facts existing at the termination of such one or more life estates or lives.

Explanation-----For the purposes of this proposition, an interest which must pm, 15_1o
terminate not later than the death of one or more persons is a life interest,
even though it may terminate at an earlier time.' 2

( 2) Pr0p0sition 2

If an interest in property would be void under section 14 because it is
contingent upon any person attaining or failing to attain an age in excess
of majority, the Contingency shall be reduced to the age of majority, as
regards all persons subject to the same age contingency.

( 3) Pr0p0sition 3 j

Propositions l and 2 shall not be eonstruced as invalidating or modifying
the term of any limitation which would have been valid under section 14
apart from those propositions?

(Note : Propositions l and '2 are intended to validate certain gifts that would
be invalid by reason of certain hardships "arising from the present law. If,
however, a gift is valid under the present law, then propositions 1 and 2
are not called into operation).

(4) Proposition 4

Propositions 1 to 3 shall apply to:----

(a) transfers taking effect on or after the date on which those proposi-
tions become operative.

(b) appointments made after that date in exercise of a power of .
appointment, including appointments made by an 'instrument under a
power created before that date.'

"By way of explanation of paragraph (b) it may be stated that when a
power has been created before the amended law becomes operative, and
the appointment is made after that date_, the new law is intended to apply
to the interest created by the exercise of that power".

17.11. We now proceed to section 115. According to Section 115, if ascetic" "5
bequest is made to a class of persons with regard to some of whom it is inopera- '
tive 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.

. The section needs no change.

17.12. According to section 116, where, by reason of any of the rules secgon 116-Bequcst
contained in section 113 and 114, any bequest in favour of a person or of a t°_t3k¢ 63°C} 9!!
class of persons is void in regard to such person or the whole of such class, f'"""° °f 9"" b°'
any bequest contained in the same will and intended to take effect after or upon
failure of such prior bequest its also void.

The section needs no change.

17.13. Section 117 provides as follows:--

"117. (1) Where the terms of a will direct that the income arising from section u7..13{f¢¢t
any property shall be accumulated either wholly or in part_during any ofdirection for ac-
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

170th Report, para 22.56.
"For signiﬁance of the Explanation, see 70th Report, para 22.57.
370th Report,,para 22.64.
'70th Report , para 22.65.



136

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 income thereof shall be disposed of as if the period during
which the accumulation has been directed to be made had elapsed.

(2) This section shall not affect any direction for accumulation for the

purpose of 1--
(i) the payment of the debts of the testator or any other person taking
any interest under the will; or

(ii) the provisions 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."
The section needs no change.

section 118. 17.1-4. Section 118 imposes certain restrictions in relation to bequests for
religious -or charitable uses. If the testator has a nephew or niece or any "nearer
relative", he cannot bequeath any property to religious or charitable uses,
except by a will (i) executed not less than 12 months before his death, and
(ii) deposited within six months from its execution in some place provided by
law for the safe custody of the wills of living persons. This section does not apply
to Hindus, etc. The section has suﬁixcd to it certain illustrations.

The illustrations to section 118 have been held to be merely enumerative.'

There is no deﬁnition, in the section, of the expression 'religious' or of the
expression, 'charitable'. Accordingly, the expressions will have to be construed
in conformity with such judicial decisions as may be applicable.

The object of imposing this restriction is to prohibit death-bed bequests
' to religious or charitable uses by persond having near relation.' Apparently,
the assumption is, that there might be undue pressure in such circumstances.

History of Law in 17.15. At one stage, in England, _there were certain restrictions' in regard

England to bequests of land to charitable trusts by will. Initially, such bequests were even
prohibited'*, In 1925, when the Settled Land Act was passed5, another provi-
sion was substituted on the subject. All such restrictions were, however, repealed
in 1960', as anchronistic.' -

fe°:t"?v'i'th sgéfglnzigj 17.16. Prima facic, the section does not appear to be consistent with
"on; » modern social notions, Whether a person should, or should not, prefer charity

to near relatives, is a matter which may better be left to his discretion, rather
than be restricted by rigid statutory provisions. The minimum interval of 12
months required by the section, and the compulsory formality of deposit of the
will in safe custody could also cause hardship, in cases where death comes
suddenly or without a prolonged illness. No doubt, the number of persons
making charitable bequestis of a considerable value may not be very large.
Nevertheless, the above diﬂiculties do require serious consideration.

Case for deleting 17.17. Having regard to the above consideration, there is a plausible case
::_=l'lia<':*i'v;s13-u*t"i'x¢"t"1-116' for deleting section 118. Taking note of this aspect, we had included, in the
workingpgpw Worlring Paper circulated on 'the S11b_]€>Ct, a proposal _for deleting the section
and invited views on the S11b]6Ct. However, appreciating that total deletion of
section 118 may be regarded by some persons as too drastic a course, we had

'Commissioner of Income-Tax v. National Mutual Association, I.L.R. 57 Born. 519.
'Paruck, Succession Act, (1977), page 313.

9Mortmain and Charitable Uses Act, 1891 (repealed).

'Mortmain and Charitable Uses Act, 1891 (repealed).

5Section 29(4), Settled Land Act, 1925 (repealed).

'Charities Act, 1960.

7See criticism by Nathan Committee (Committee on Cheritable Tru t R rt 1952 ,
63.64 paragraps 262-276. S 5) epo ( ) pages



137

also put forth, in the Working Paper, an alternative proposal, whereunder, while
the section would be retained, its rigour could be mitigated by making certain

needed amendments. ,

17.18, The rigour of the present section could be mitigated (a) by -remov- Amendment as an
ing the provision for deposit. and (b) rem-oving the minimum interval, and 3"°m'""¢-
(C) by merely substituting a requirement that one of the near relatives must
be an attesting witness. The expression "near relative" can be suitably defined'
as meaning a nephew or niece or a nearer relative.

17.19. There is one more change, which :',»s worth consideration with re-- Section 118-'nearer
ference to section 118, if the section is to be retained. The words 'nearer '°"""'°'-
relative' occurring in the section have raised a controversy. The Madras High
Court has held' that a widow is not a 'nearer relative'. A bequest to charity by
a person who dies two days after the making of the will, leaving a widow, was
accordingly held to be valid, on the ground that this section had no application
to any relationship" by marriage. 1n coming to this conclusion, the judges relied
on the word 'nearer', which they regarded as conclusive That word, in their
opinion, postulated a relationship which could be measured by degrees, There
could not be any question of measuring 'ncarness' ( or distance) by comparison
between the wife and other relatives.

A contrary view has, however, been taken by the Bombay High Court,'
holding that the widow is included in the term 'nearer relative'.

We are not concerned with the question as to which is the true construction
of the section as it stands as present. But the Bombay view' appears to be
preferable in order to protect the interests of the widow. If the section is to be

retained, it appears to be desirable to incorporate that view.

Section 118 thus needs to be amended so as to ensure that a bequest to
charity shall not be valid if the testator's spouse is alive, unless the will be
executed in accordance with certain special requirements. The object could be
achieved by inserting the following Explanation below the section:-------

"Explanation: The spouse of a person shall be deemed to be the nearest
relative Of that person for the pu.rp0-ses of this section."

17.20. Of the comments received by us on the Working Paper on the -
subject, only on '-orne--a suggestion forwarded through the Catholic Bishops' }',',;";3?.,?é'},"7.§..iV:'.?.§i»'3
Conference of India°------has dealt with section 118, and the view expressed is mmcndalion
that deletion of section 118 would be too radical a course, and that it would

be better to amend the section rather than delete it.

Although our» own inclination is for deleting the section, we think that, at
least for the present, it would sutﬁce if_sectron 11.8 is amended on the lines
already indicated in the preceding discussion.' We recommende that the section

should be so amended.

17.21. The relations contemplated by section 118 are, according to judicial section 1l8--th¢
construction, legitimate relations ﬂowing from lawful wedloolr. In a Bombay qlletioﬂ 0*" 
case, where it was so held,' Batchelor J. held that the Indian Succession Act ma'
was based on English Law, and deﬁned relationship ﬂowing from lawful wedlock
only. A bastard, in the eye of the law, was nullius ﬁliusf'

'Illustrations to section 118 will need consequential modiﬁcations.

'iaidmlntstraror General v. Simpson, (1902) I.L.R.26 Mad. 532.

5Contrast section 25(1), Indian Contract Act, 1872.

'Dinba£ v. Pestortjee, O.S. No. 997 of 1917 (Bombay) referred to in Paruck, Indian Succession
Act, (5th Ed.). page 259.

'Para 17 . 19, supra.
'Catholic Bishop's conference of India, New Delhi, letter dated 3rd October, 1984.

"Paragraphs 17.18 and 17.19, supra. __ -
'Erma Agnes Smith v. Thomas Massey, I.L.R.30 (1906) Bom.500.

'Compare judicial decisions on section 37.



tion ll8A-Pro-
ision in regard to
harities as recom-
ded in.

rations 119 to 121.

tion 119-Date of
ting of legacy
payment or
sion postpon-

138

which needs to be
provides, in effect, that the restrictions
e rule against perpetuity, (ii) the rule
failure of prior (invalid) interest, and

17.22. There is another point concerning charities
considered. The Transfer of Property Act'
imposed by the Act with respect to (i) th
as to a transfer which is to take effect on
(iii) the rule as to direction for accumulation, do not apply in the case of
transfer of property (inter-vivous) for the beneﬁt of the public for certain
speciﬁed purposes (broadly, charitable purposes). We may also add that the
Law Commission in its Report on the Act has suggested some changes. Section
18 of the Transfer of Property Act as recommended (to the revised)" is as
fo1lows:-----

"IS. The -restrictions in sections 14, 16 and 17 shall not apply in the case of
a transfer of property for the beneﬁt of the public, in the relief of poverty,
the advancement of religion, education, commerce, health, safety, or any
other object beneﬁcial to mankind."

17.23. The Succession Act does not make any such concession in the case
of charities. We however, see no reason why such concessions ought not to be
provided in the Succession Act also. Accordingly, we recommend that a new
section--say, as section 118A----should be inserted as follows, to provide that the
corresponding provisions of the Succession Act shall not apply to bequests.

"l18A, The restrictions cantained in sections 114, 116 and 1117 shall not
apply in the case of a bequest for the beneﬁt of the public, for the relief
of proverty or the advancement of religion, educati0n, commerece, health,

safety or any other object beneﬁcial to mankind."

CHAPTER 18 .
VESTING OF LEGACIES (SECTIONS 119 TO 121)

18.1. Certain fundamental rules as to the vesting of legacies are enacted in
sections 119 to 121.

Where a legacy is given in general terms, without specifying the time when
it is to be paid, the legatee has a vested interst in it from the day of death of
the testator. This principle, already enacted in the Chapter3 realing with rules
for..the construction of wills, ﬁnds re-iteration in section 119, which provides,
in effect, that this rule applies even if the legatee is not entitled to immediate
possession of the thing bequeathed, unless a contrary intention appears from the
will. The date of vesting when the legacy is contingent upon a speciﬁed uncer-
tain event is dealt within section 120. Under section 121, where the bequests
are made to members of a class who attain a particular age, a person who has
not attained that age cannot have a vested interest in the legacy.

18.2. Section 119 reads:

"l19. Where by the terms of a bequest the legatee is not entitled to im-
mediate 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 le atee on the testator's death, and shall pass to the legatee's
representatives 1 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: Anintention that a legacy to any person shall not become
vested in interest in him is not to be inferred merely from a provision

1Section 18, Transfer of Property Act, 1882.
'See Law Commission of India, 70th Report (Transfer of Property Act).
°Section104.



1 ii)

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".

The section needs no change.

18.3. Section 120 deals with the date of vesting when a legacy is contingent Section 120.

upon a speciﬁed uncertain event. The legacy may be dependent either on the
happening of the event, or on the non--happening of the event. In the former
case, the legacy does not vest until the event happens. In the latter case, the
legacy does not vest until the event becomes impossible. Until vesting, the
interest of the legatee is called a "contingent".

18.4, There is an Exception dealing with the case where a fund is bc--Section120 Excep-

queathed to any person upon his attaining a particular age, and the will also tion.

gives to him absolutely the income to arise from the fund before he reaches that

age, or directs that the income, or so much of it as may be necessary, is to be

applied _for his beneﬁt. In such a case, the bequest~is not contingent. This nega-

tive provision in the Exception, of course, really means that the bequest vests

at the time at which it would otherwise vest. Illustrations (xi) and (xiii) to the

section bring out the applicability of the Exception.

It should however, be noted that the scope of the Exception is somewhat
cut down by the provision in section 121, where a bequest is made to members
of a class attaining a particular age? It is clear from the illustration to section
1212, that where a bequest is made to only such members of the class as shall
have attained a particular age, a person who has not attained that age cannot
have a vested interest in the legacy, (this is the provision in the section), and
this rule applies even where the income of the share to which a particular child
would be eventually entitled, is directed to be applied for his maintenance and
education till he attains a particular age. (This is contained in the illustration
to section 121).

Thus, section 121 overrides the provision contained in the Exception to

» section 120. It appears to be desirable to bring out this aspect, i.e., the overrid--
ing effect of section 121 ( as construed in the light of the illustration to that
section) more clearly, by amending the Exception to section 120. Scuh an
amendment seems to be advisable in order to avoid any apparent misconception
that might otherwise be caused by the wide language of the Exception to

section 120.

18.5. Accordingly, we recommend that in section 120, Exception, the Recommendation
following proviso should be inserted at the end: '

"Provided that nothing in this Exception shall affect the provisions of
section 121."

18.6. 'Section 121 reads:-- .Spc_:tion lzyvestmg
"]2l. Where a bequest is made only to such members of a class as shall ?0'§1ut§f,°::;?,,t1',:':;";s;

have attained a particular age, a person who has not attained that age can- aclass as shall have
not have a vested interest in the legacy. attained particular

age.
Illustration

A fund is bequeathed to such of the children of A as shall attain the age
of 18, with a direction that, while any child of A shall be under the age
of 18, the income of the share, to which it may be presumed he wiil 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." --

The section needs n-o change. The relationship of this section to the Exec-p--
tion to section 120 has been already 'dealt with.'

- --:Sectoon 12l.' #
9Para 18 .6 infra.
'Para 18.4, supra.

85-L{3(Dl1.44M0fLJ&CA-10



Scope.

Seﬂions. 122-One
rous Bequests.

Principle analogous
to election.

Application.

Section 123-One of
two separate and in-
dependent bequests
to same person may
be accepted, and
other refused.

Contingent bequest-

140

CHAPTER 19
ONEROUS BEQUESTS (SECTIONS 122 AND 123)

19.1. Onerous bequests form the subject matter of two sections--secti0ns

I22 and 123, which are simple and self-explanatory.

19.2. Section l22 reads as undcr:--

"122. Where.a bequest imposes an obligation on the legatee, he can take
nothing by it unless he accepts it fully.

ILLUSTRA T10/V

A,' having shares in (X), a prosperous joint stock company and also
shares in (Y), a joint stock company in diﬂiculties, in respect of which
shares heavy calls are expected to be made, bequeaths to B all his shares
in joint stock companies; B refuses to accept the shares in (Y). He for-
feits the shares in (X)".

19.3. The underlying principle is to some extent analogous to the doctrine
of election. If you take a beneﬁt, then you also take the burden. In an onerous be-
quest, the testator bequeaths the property with an obligation annexed to it; in the
case governed by election, the testator confers a beneﬁt on the legatee, depriving him
simultaneously of some other interest belonging to the legatee. In both the cases,
something not beneﬁcial is tagged on to the beneﬁt.

19.4. A Calcutta case illustrates' the application of the section. The plaintiff
(appellant) had claimed partition of two houses and certain movable property
in the possession of his step mother and other three half-brothers. It was alleged
by the step-mother and her sons that the property had been gifted to the step
mother by her husband (i.e. the appellant's father). The applellant's father had
stipulated a condition in the gift deed that a maintenance allowance of Rs, 5
must be paid by the donee (step--mother) and she was not aware of this condi-
tion. It was held that the appellant's father handed over the document and she
accepted it as a gift, without thinking of doing anything contrary to its terms,
and constituted acceptance. It was not necessary that there should be ac-
ceptance of the onerous condition alongwith the acceptance of the gift. Assent
of the donee is presumed until and unless he disclaims.

The section does not seem to need any change.

19.5. Section 123 reads:----

"l23. 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. A
ILLUSTRATION

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

money."

The section needs no change.

CHAPTER 20
CONTINGENT BEQUESTS: SECTIONS 124 AND 125

I . I ntroductory

20.1. Contingent bequests are dealt with in sections 124 and 125. A be-
quest may be contingent upon a speciﬁed uncertain event, (section 124) or on

1Sarba Mohair V. Manmahan, A.I.R. 1933 Cal. 488.



141

survivonship (section 125). Where no time is mentioned for the occurrence of
the unecertain event, the material time for such occurrence is the time of pay-
ment or distribution. That is the gist of section 124. Where no time is speciﬁed
for the survivorship, the material time, again, is the time of payment or distri-
bution, according to section 125. But that section is expressly made subject to
a contrary intention--a provision which is not found in section 124.

20.2. Of these two sections, section 124, because of its rigidity and because Section 124---

of certain other defects, needs discussion. The setion reads as under:-- B°'1"°5' °°'".i"8°"'
upon uncertain eve-

"124. Where a legacy is given if a speciﬁed uncertain event shall happen 2,',;,ﬁ§§,"'"° being

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 of B does not take effect. '

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

(iii) A legacy is bequeathed to A when and if he attains the age of 18, and,
in case of his death, to B. A attains the age 01 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. The words "in case of B's
death without children" are to be understood as meaning "in case B dies
without children during the lifetime of A."

(v) A legacy is bequeathed to A for life, and, after his death to B, and,
"In case of B's death", to C. The words "in case of B's death" are to be
considered as meaning "in case B dies in the lifetime of A."

20.3. Secti-on 124, as has been pointed out by the Privy Council,' is b,asedEng1,sh cages
on the English case of Edwards V. Edwards". The English case, has however, i '
been partly overruled by the House of Lords} The House of Lords Judgment'
was described by the Privy Council (in another appeal from India) as "one
which emerged through a thicket of technical decisions to a ground of plain and
pre-eminent good sense."

20.4. Our examination of setion 124 reveals that the section suffers from Defects in S"_
certain serious defect-s. If these defects are to be rectiﬁed, a modiﬁcation of the mm 124,
text of the section, as well as of illustrations two and four to the section, will be
needed. Details of the needed amendment will be indicated in the course of the
discussion in the succeeding paragraphs.

20.5. Let us ﬁrst dispose of the_ second illustration to Section 124. The section 124 second
facts presented in the second illustration are as under: A legacy is bequeathed ;11ustmi°n_
to A and, in case of his death without children, to B. If A survives the testator
or dies in his lifetime leaving a child, the legacy to B does not take effect, ac-
cording to the illustration. The illustration _does not, however, seem to be in
conformity with English law, nor with realities. In fact, even the earlier English
case' on which the main part of the section is based, did not lay down any such
proposition applicable in all cases. Lord Romilly M. R. in that case, taking ur

1Bhupendra v. Amarendra, (1916) I.L.R. 43 Cal., 432, 440 (P.C.)
'Edwards v. Edwards, (1852) 15 BeaV., 357; 51 ER. 576.

30' Mahenv v. Burdetr, (1874) L.R., 7 H.L., 388. See para 20.11, infra.
'Chunilal v. Bax' Samrath, (1914) I.L.R. 38 Born. 399, 413 (P.C.).
'Edward: v. Edwards, (1852) Law Journal (Chancery) 324.



142

the second class of cases, namely, gifts to A for life and if he shall die without
children. then a gift over. observed as follows:--

"In the second of the supposed cases, there is a manifest distinction. There
the event spoken of on which the legacy is to go over is not a certain, but
a contingent event. It is not in case of the death of A but in case of his
death without children . . . . . . .. In these cases, it has always been held
that if at any time, whether before or after the death of the testatorf, A died
without leaving a child. the gift over takes effect, and the legacy vests
in B . . . . . . . . . . 

Second illustration 20.6. In view of these observations in the judgment in the earlier English

partly inaccurate. case, it is surprising that the second illustration to section 124 states that the
gift to B does not take effect where A (the first holder) "survives the testator".
A may survive the testator, but may die without leaving a child, In such a case,
according to the earlier English case, the gift over takes effect. The second
illustration is thus different from the English position.

Need for amend- 20.7. In our view, the English rule correctly reﬂects the testatorﬂs intentions
{neat of the second in the generality of cases. The second illustration should. therefore. be revised
illustration. as UndC|.:~_

"(ii) A legacy is bequeathed to A, and in case of his death without
children, to B. If A survives the testator and dies leaving a child, or dies
in his lifetime leaving a child the legacy to B does not take effect. But if
A dies without learirtg 1.' child, whether l7e]'0rr' or after the death of the
testat0r_ the legacy to B takes effect."

S°cmn124_.fOuNh 20.8. The fourth illustration to section 124 also requires detailed comment.
iliusu-aﬁon_ Under the illustration as given in the Act,' the words referring to BS death
without children are to be understood as meaning "in case B dies without

children during the life time of A."

. ., 20.9. The section here gives statutory effect to the earlier English case?
Earlier English . . .
case now over- In fact, the fourth illustration to the section _actually reproduces the fourth rule
ruled. enunciated in that case." However, this particular rule has, in England, been

overruled by two deeision'--5 of the House Of Lords."

Present "mm in 20.10. According to the present English law, where the legacy is given in

E,,g1a,,d_" 3 the. circumstances specified in section 124, "death" would mean (unless the will
indicates an intention to the contrary). death at any time. and not merely death
in the life time of the prior holder.

. 20.11. In this connection. it may be of interest to note that section I24
i':tc}§n(!gi:f,l§_pmem reproduces section III of the Indian Succession Act of 1865, which was itself
based (in part) on the English law as then understood. (However, the second
illustration to section 124, taken over from the earlier Act, does not follow even
the earlier English7 law). The law on the subject was altered by two judgments
Of the House of Lords pronounced in 1874, which are very much material to a
consideration of section 124, particularly the fourth illustration. In the House
of Lords, there was an Cxecutory bequest whose vesting depended upon the
"death" of the previous holder without issue. The question to be considered was,
whether the contingency of 'death' referred to death of the previous holder
before the preceding life estate came to an end, or whether it referred to his
death taking place at any time, that is to say, death before or after the life-
time of the holder of the preceding life estate. The earlier English judgement----
Edwards v. Ifdwards 4th Rule,----would have Supported the first construction,

'Paragraph 20. 2., supm.

'~'Edwards \'. Edwards. (I 852) 15 bear. 357.

='S.M. Shah, "Law of Executory Bequests" (I936) 38 Bombay Law Reporter (Journal) 1.
'O'Mnlwi.vr v. Burr./ett, (1874) Law Reports 7 House of Lords 388.

-tmgram V. Soutten, (1874) Law Reports 7 House of Lords 408.

'See paragraph 20.] l, infra.

'See para 20.5., supra.



l~l-l

but the House of Lords overruled' that part of the earlier judgment and held
that unless the will indicated a contrary intention, the contingency in question
(death without issue) referred to the death of the previous holder without leav-
ing issue at any time and not necessary to his death before the termination of
the preceding life estate. As a result, the first person to whom an absolute estate
is given under the will would take it, subject to the dcfeasance clause in favour
of the executory bequest operating in the manner mentioned above.

Lord Heatherly .-suggested that the fourth rule enunciated in the earlier
English case would be better stated thus' :--

"The period to which the executory devise will be referred will be the
period of death of the first taker, unless there are directions in the will
inconsistent with that supposition".

20.12. Thus, the forth illustration incorporates a rule now discarded in Observation in
England. It has also been pointed out3 that'Hindu law as it was administered in Madras °35°'
India (before the statutory law of succession was extended to Hindus) was pre-
cisely the same as the English rule established by the House of Lords in its
decisions of 1874.

20.13. It is further proper to point out that, with reference to _scction 111
of the Succession Act of 1865, (i.c. the predecessor of the present section 124)
Wallis C. J. had in a Madras case' observed that section was "rather an unfor-
tunate section" which was enacted to give statutory effect to the decision in
Edwards v. Edi-rards which was, in part over~ruled after the passing of the
Indian Succession Act by the House of Lords.

20.14. Let us now examine if there is any theoretical reason for adhering };ar11¢,-m1¢ whgthgf
to the old English rule on the point discussed above. Prima face, the old English defensible.
rule would. . .

(B) The fourth illustration to section 124 should also be revised in con-
formity with the abovc recommendation. The object could be achieved by re-
framing the last eleven words of the illustration as under:------

"in case B dies without children during or after the lifetime of A."

20.17. The second illuSt1':!ti0n to section 124 should also be revised, as Changer-eccmmcnd.

already recomrnendedi. , ed in second illus-
. tration to section

124.
20.i8. This takes us to section 125. It reads as under:-- Section l25~--Bequ-

' _ _ _ est to such of certain
'123. Where a bequest 15 made to such of certain persons as shall bepersons shall be

surviving at some period, but theaexact period is not speciﬁed, the legacy 5"';'.'i'él"3 13" 5.335'?
shall go to such of them as are alive at the time of payment or distribution, 9° '0 no SW" ° '
unless a contrary intention appears by the will." _

Four illustrations appearing below the section are quoted below :---

"(i) Property is bequeathed to A and B to be equally divided between
them, or to the survivor of them. if both A and B survive the testator, the
legacy is equally divided between them. If A dies before the testator. and
B survives the testator, it goes to B.

(ii) Property is bequeathed to A for life, and, after his death, to B and C.
to be equalty divided. between them, or to the survivorof 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
'Cf. paragra ph 20 . 3, supra.
"0'.Mahenv V. Burden. ([874) L.R.7 H.L. 388. 404. y
3(0) Soorjeemoney Dosce V. Delmbmzdao .MIn'/ick, (1862) f) M.l.A. I23» (l;'.C.).
(b) Blzoobrm Illa/rim', V'. Hm'r1's/1 Chcmder, (1878) I.L.R. 4 Cal. 23. _
'Sounderrajan v. Nafarajan. (1920) IL. .R. 44 Madras 446.
5Para 20. 17., supra. .



144

children are to stand in his place. C dies during the life of the testator; B
survives the testator, but dies. in the lifetime of A. The legacy goes to the
representatives of B.

(iv) Property is bequeathed to A for life, and after his death, to B and C,
with a direction that, in case either of them dies in the lifetime of A, the
whole shall go to the survivor. B dies in the lifetime of A. Afterwards C
dies in the lifetime of A. The legacy goes to the representative of C".

The section has created no problems and we have no changes to recommend
in the section.

CHAPTER 21
CONDITIONAL BEQUESTS----SECTIONS 126--137

I. Introductory

Conditional 21.1. The power of the testator to dispose of his property by will' implies3

BeqUeStS- that he has power to make a disposition which is (i) absolute or (ii). condi-

tional." The power to impose conditions in regard to dispositions made in a.

will, though not enacted in so many words, is implicitly recognised by a number
of sections of the Act.'

Conditions pre- 21.2. The position in this respect is substantially the same in India as in

°°d¢m and 5"b5°'England,' namely, a testator may, by his will, freely attach conditions to his

q"°"t' gifts, provided the conditions do not conﬂict with certain recognised restric-
tions and are not inconsistent with the other provisions of the will. Conditions
are either "precedent"', i.e., precedent to the vesting of the bequest on which the
condition is imposed or subsequent, i.e., conditions which divest the estate al-
ready vested. In the later case, again, there may or may not be a bequest to
another person. Conditions must, 'however, be such that their performance is
not illegal.

sections 125.137 21.3. Certain aspects of conditional bequests form the subject matter of section
grouped under 126 to 137. The provisions relating to conditional bequests can be grouped under

'bT°3d °a'°8°"i°5- these broad categories»---

(a) Conditions which are impossible, or contrary to law or to morality:
Sections 126-127.

(b) Conditions precede-nt---compliance therewith, and the effect of non-
compliance: sections 128 to 130.

(c) Conditions subsequent with a bequest over--compliance therewith, and
the effect of non--compliance: sections 131--l33.

(d) Conditions subsequent with no ulterior bequest: sections 134 to 137.

(e) Time for performance of condition precedent and condition subse-
quent, section 137.

II. Void bequests.

Section 126-.36 21.3A. Section 126 reads:--
quest upon _ _ im-
posslble common' "126 A bequest upon an 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.

'Section 59.

'Cf? section 8, Transfer of Prooerty Act, 1882.
3e.g., secti9ns 119-I37.

'Halsbury, 3rd Ed. Vol. 39, page 914, page 1386.



145

(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."

The section needs no change.

21.4. Section 127 reads---- 5.°'?'i°" 127~C°n-
dition contrary _ to

"127. A bequest upon a condition. the fulﬁlment of which would be con-'aw 0*' m°'3'"Y-

trary 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."
The section needs no change. S:-'°_'li0n 7.l27--C0n-

diuon contrary to
21.4. Section 127 127 reads» "*""'T m°T31i'Y-
"127. A bequest upon a condition, the fulﬁlment 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 5000 rupees to his niece if she will desert her husband.
The bequest is void".

21.5. While section 127 mentions "law and morality", it does not mention pubuc policy 3
"public policy". It is elementary that transactions inter vivos are void if opposed Wider concept-
to public policy, and bequests should stand on the same footing. Public policy is
a wider concept than 'law or morality'. It may cover, for example, interference
with the administration of justice, -restraint of marriage and other matters which
may not be embraced by "morality". Questions have, in particular, arisen as to
the validity of restraints on marriage, inserted in contracts and wills. As to wills,
in a Bombay case,' the testator had put a condition whereunder if a legatee
married a non--Zoroastrian, the property would pass to another. Chagla C. J.
held that such a condition would not be considered as contrary to "law or
morality" under section 127 of the Indian Succession Act. Discussion of the
aspect of restraint on marriage as violating public policy was held to be irrele-,
vant, having regard to the fact that section 127 concerns itself only with "law

and morality".

21.6 It may be noted that the Transfer of Property Act2 is more speciﬁc Transfer of PM
on the subject. Under that Act, no transfer can be made for an unlawful object perty Act,
or consideration within the meaning of section 23 of the Indian Contract Act,
1872. Section 23 of the Contract Act, inter--alia, renders void agreements the
consideration or object whereof is opposed to "public policy".

21.7. In our view, section 127 should be amended by speciﬁcally adding Recommendation
'public policy'. On principle. bequests contrary to public policy should not be to add 'Public
regarded as valid. Moreover. as already stated,' there is no reason why the rule P0"°>"-
applicable to bequests should be different from the rule applicable to gifts. We.
therefore, recommend that in section 127, after the words 'or morality'. the
words "or to public policy" should be inserted.

After the proposed amendment, the section will read as under:----

"127. A bequest upon a condition, the fulﬁlment of which would be con~

trary to law or to morality or 10 public policy, is void".
. 5 ' 1 _.
21.8. Section 128 reads:--- Ff?-§§',§,'e,,,2'i,, Rm
"123. Where a will inposes a condition to be fulﬁlled before the legatee f,°f,§,',',',.,,,'° "°"'"3

can take a vested interest in the (hint: bequeathed, the condition shall be
considered to have been fulﬁlled if it has been substantially complied with.

'ldhazrslzed Manelcklv. The Official T:-usleei of l3ombay, A.IiRT1§t18 Ilom. 31';
"Section 6( h) (2), Transfer of Property Act, 1882.
'Para 21 .5, supra.



146

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. 1) sends a present to A previous to the marriage. E
has been personally informed by A of his intentions, and has made no objec-
tion. A has fulﬁlled the condition.

(ii) A legacy is bequeathed to A on condition that he shall marry with the
consent of B, C and D. D dies, A marries with the consent of B and C. A
has fulﬁlled the condition.

(iii) A legacy is bequeathed to A on condition that he_ shall marry with
the consent of B, C and D. A marries in the lifetime of B, C and D, with
the consent of B and C only. A has not fulﬁlled the condition.

(iv) A legacy is bequeathed to A on condition that he shall marry with the
consent of B. C & D. A obtains the unconditional assent of B, C and D, to
his marriage with  Afterwards B, C and D capriciously retract their
consent. A marries E. A has fulﬁlled the condition.

(V) A legacy is bequeathed to A on condition that he shall marry with the
consent of B. C and D. A marries without the consent of B, C and D, but
obtains their consent after the marriage. A has not fulﬁlled the condition.
(vi) A makes his will whereby he bequeaths a sum of money to B if B
shall marry with the consent of A's executors. B, marries during the life-
time 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 with-
in a time speciﬁed in the will. The document is executed by Aiwithin 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."

The section needs no change.

II I . Successive bequests.

Sections 129 to 133' 21.9. The same property may be the subject matter of successive bequests.

Subject to certain conditions, bequest of the same thing to one person, and there-
after to another person, is not prohibited. However, it becomes necessary to
provide rules for working out the exact operation of such bequests. These rules
are contained in sections 129 to 133. Such rules, are needed in order to deal
with a variety of situations :--for example, -

(a) where there is a failure of the prior bequest (sections 129 and 130), or

(b) the subsequent bequest is dependent on a condition (sections 131-and
132), or

(c) the subsequent bequest itself is not valid (section 133).

No changes appear to be needed in these sections. But it would be con-
venient to draw attention to a few salient points, though of minor importance.
Section 1 31 --- --Be-
,','"'::,tn'3,'?',',';de'" O" 21.10. Taking, ﬁrst, section 231 which deals with a bequest dependent on
A ' a condition, it would appear that if non-satisfaction of the condition '(to be
satisﬁed under the will for retaining a bequest) is no account of duress or other
circumstances beyond the control of the legatee, then the bequest is not forfeited'-'.

The following passage from a judgment of Lord Campbell' was cited in a
Calcutta casc':--

"Had the Children been included in the arrest, 1 conceive that their resi-
tlencc abroad under continued duress would not have worked zrforfeiture.
and if their residence abroad moy be fairly ascribed to the imprisonment of
'Tin Couri V. Krishna Bhabini, (1894) I.L.R. 20 Cal. 15, 17.
'Trevelyan, Hindu Wills (2nd Ed.) , pages 125, 126.
"Clavcring v. Ellison, 7 H.L. Cas., 707, 723.
'Tin Court' V. Krishna Bhablnl, (1894) I.L.R. 20 Cal. 15, 17.



147

their father by Napoleon. the forteiture might he saved on this ground, were
there a necessity to resort to it."

21.11. As regards section 132, it is based on the rule that conditions sub- Section 132-

sequent which tend to the destruction of an estate already vested should be con-

strued strictly.

21.12. Under section 133, if the ulterior bequest is not valid, the original Section 133. "
bequest is not affected "by it", ic., by the invalidity of the ulterior bequest. The

principle here is that speciﬁc estates which are gcpd in themselves are not in

validated by a subsequent illegal disposition of thevresidue or remainder,'-' and

('31 interest is not taken away unless the gift over takes effect.

The first illustration to section 133 deals with the ease of impossibility of
fulﬁlling the condition on which the ulterior bequest would take effect, The
second illustration deals with the case of illegality of that condition. The third
illustration deals with the case of lapse." Invalidity could also arise by reason
of vagueness and uncertainty of the bequest------th0ugh these situations are not
illustrated in the illustrations' to the section.

IV. Bequests ceasing to have effect.

21.13. The testator may make a bequest with a condition that it shall cease Secfions 134 and
to have effect in speciﬁed cases, without ordering a subsequent disposition 13'-
to have effect in speciﬁed cases, without ordering a subsequent disposition of
the property. This subject is dealt with in sections 134 and 135.

Section 134 gets rid of the English rule-" under which, in the ease of
personal property, certain conditions were void if there is no gitf over. This is
known as gifts, in terrorem.

The sections need no change.

V. Conditions Subsequent

21.14. The conditions super-added on a bequest may be in the form of the section 136_con.'

performance of an act by the legatee. In such a case, if no time is speciﬁed for ditionsin the 1131""
the' performance of the Act, and the legatee takes any step which renders impos- ;'ftP°'fE""'l:"§fw °f
sible or indeﬁnitely postpones the performance of the required act, the legacy C5 y E '
shall go as if the legatee had died without performing such an act, according to

section 136. The ﬁr-zt illustration to the section_ deals with a case where perfor-

mance of the condition is rendered impossible. The second illustration illustrates

the case where performance of the condition, though not rendered impossible,

is indeﬁnitely postponed. The illustration'say.s that if a bequest is made to A,

with a proviso that it shall Cease to have effect if the legatee does not marry B's

daughter, and the legatee A marries a stranger, then the bequest ceases to have

effect. This illustration raises the interesting question whether such conditions

should take notice of the fact that the legatee has his whole life to perform the

condition. As the section stands, this is not permissible.

21.15. English cases on the subject take a different view, so that if the_Englisi_i Law as
testator has not prescribed £1 particular period, then the period during which the '"'i:=ﬁn"¢t P051-
condition can be performed, is the entire life time of the dance. 9° °m°n'

Under English law, the ideﬁnite postponement of the fulﬁlment of a condi-
tion does not work as a forfeiture of the estate. Thus, in a case similar to that

'Khetter v. Gunganarain, 4 C.W.N. 671, footnote discussing the. case law, including Tagore v-
Tagore.
'-'Dhan/axttzi V'. Hariprasad, l.L.R. 45 Born. 1038, 1044.

._,Some commentators regard it as it case of remoteness but it may be noted that section 105
is mentioned.

'llalsbury. 3rd Ed., Vol. 3°, page 923, para 1396.
5(a) Evanturul V. Evanturel, Law Reports 6 Privy Council 11.
(b) Baths v. Public Trustee, (1925) 1 Ch. 377. '



148

in illustration (ii) to section 136, it was held'-P that in spite of the girl marry-
ing into another family, the performance of the condition was not rendered im-
possible, since she might survive her ﬁrst husband, and she would not be divested
as the performance of the condition was still possible during her whole life.

Recommendation 21.16. We are of the view that the present English position3 on the subject
:36 revise Section is more just and is in consonance with_ the general approach of the law which
' favours the vesting of estates and discourages divesting. We therefore recom-
mend that illustration (ii) to section 136 should be revised in view of what we
have stated above, and the portion in the main section referring to indeﬁnite

postponement be also deleted.

Revised section 136 may read as under:--

"136. Where a bequest is made with a condition super-added that, unless
the legatee shall perform a certain act, the subject--matter of the beqest shall
go to another, 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 . . . . . . . the performance -of the act required, and 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 fulﬁl the condition. B is entitled to receive the
legacy.'

(ii) A bequest is made to A, with a proviso that it shall cease to have any
effect if he does not marry B's daughter. A marries a stranger. Though A
may thereby indeﬁnitely postpone the fulﬁlment of the condition. he does
not render impossible its fulﬁlment. The bequest does not cease to have
effect."

21.17. This takes us to section 137, which provides that where the per-
formance of a condition is to be done within a speciﬁed time under the will,
the act must be performed within the speciﬁed time, the only exception being
in the case of fraud. '

Section 137.

20.18. In relation to fraud, it is to be noticed that in principle the fraud

hquiremcm as to should be of the person who would be beneﬁted by non-performance of the con-

fraud.
dition. In this connection, if may be noticed that in the Transfer of Property
Act,'~ the corresponding provision contains the words "of a person who would
be directly beneﬁted by non-fulﬁlment of the condition". These words ought to
appear in section 137 of the Succession Act also', to improve it in point of
precision.

English law as 21.19. The proviso relating togfraud seems to have been suggested by an

,0 fraud and opinion expressed in an early English case', to the effect that if, in that case,

other cases. there had been fraud on the part of the trustees, or, possibly, such laches on
their part as the Court would consider to have been the sole cause of the donee
of the right of pre--emption not having complied strictly with the condition/en-
forced by the will, then the donee is entitled to relief,

Forfeiture against 2l._19A. Incidentally, it appears that in England, inusome cases where a
time iimns inlegatee is required to perform a certain act within a certain time, courts have
England. ,._
1(a) Randal V. Payne, 1 Bro. C.C. 55;
(b) Lester Y. Garland, 15 Ves. 248.
'Halsbury, 3rd Ed., Vol. 39, page 930.
"Para 21.15, supra.

'Illustration (i) as proposed reproduces the existing illustration. It may be that the present
doctrine does not go so far. ,

'Section 34, Transfer of Property Act, 1882.
'See para 20.20, infra.
7Bra0ke V. Gerrad, 3K & J 608.



149

jurisdiction to grant relief against forfeiture and the legatee is allowed a reason-
able time within which to perform the condition.'-3 There was no gift over in
those cases, so that the interests of any alternative legatee were not involved'.

2120. In view of what we have stated avobef we recommend that section Rﬁcommendation
137 should be amended by adding, after the word "fraud", the words "of a person 537 amend S°°"°"
who would be directly beneﬁted by non-fulﬁlment of the condition." '

CHAPTER 22

BEQUESTS WITH DIRECTIONS AS TO APPLICATION OR ENJOYMENT
(Sections 138 to 140)

22.1. Provisions as to bequests with directions as to application or enjoy- scam
ment of the property bequeathed are to be found in sections 138 to 140. The
principal object of these sections is to deﬁne the circumstances in which such
directions can be validly incorporated in the will.

If there is an absolute bequest,' directions restrictive of application or
enjoyment are void: sections 138 and 139. This is known as the Rule in Lassence
V. Tierney.' But if there is no absolute bequest, they are valid: section 140. This
general principle underlies the three sections--though, of course, it is not so
simply stated.

22.2. Section 138 provides that where a fund is bequeathed absolutely to or Sectionus
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. Under the illustration, a
sum of money is bequeathed towards purchasing a country residence for A or to
purchase an annuity for A or to place A in any business. A chooses to receive
the legacy in money. He is entitled to do so.

The corresponding section of the Transfer of Property Act is section 11. In
addition, as has been pointed out by one commentator,' section 10 of the Transfer
of Property Act also declares to be void a condition in restraint of transfer or
alienation of property. The Succession Act does not contain a similar section, but
the word "enjoyment" in section 138 would include a restraint on alienation.

As to the word "absolutely" in section 138, it qualiﬁes not only the word
"bequeathed", but also the words "for the beneﬁt of any person". Hence the
section does not apply to a life interest."

22.3. Section 139 provides that where a testator absolutely bequeaths a fund

. . . . ' 1 9.
so as to sever it from his own estate, but directs that the mode of enjoyment of Seem" 3 V
it by the legatee shall be restricted so as to secure a speciﬁed beneﬁt for the legatee,
then. if that beneﬁt cannot be obtained for the legatee, the fund belongs to him
as if the will had contained no such direction.
22.4. There are two illustrations to the section. According to the ﬁrst illus- nlusmtion

tratiou, A bequeaths the residue of his property to be divided equally amongst
his daughters, and directs that the shares of the daughters shall be settled upon

xpg.-..2 v. ride, 4 Beav, 468.
'Simpson V. Vickers, 14 Ves. 341.
3See, for example, Re-Packard V. lVt1Icr5, (1920) 1 Chancery 596; (1918-1919) A11E.R.
365.

'See further Halsbury, 3rd I3d., \'ol. 39. page 930-31, paras 1406-1407.

"Para 21 .18, supra.

"See marginal note to section 138 and Hancock V. Watson, (1902) A.C. 14 ("absolute
gift"). _
7L(2rscnrr' V. Ticrnrﬁr, (1849) 1 M. & G. 551.
'Paruck Succession Act (1977). page 428. I
'Kidar Natl: V. Gaya Nat/1, A. I. R. 1930 Calcutta 731.



Scope of Section

139.

Section l40--
Bequest of fund for
certain purposes,
some of which can-
not be fulﬁlled.

Recommendation
to amend sections
138-140.

Section 141 .

l5U

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 the share of the residue.

According to the second illustration, A directs his trustees to raise a sum of
money for his daughter and he then directs that they (the trustees) shall invest
the fund and pay the income arising from it to her during her life and divide the
principal amongst her children after her death. The daughter dies without having
ever had a child. Her representatives are entitled to this fund.

At the first sight, it may be diﬁicult to link up the illustration with the main
section, but it appears that in the main section the words "so as to secure a
speciﬁed beneﬁt for the legatee" are taken as including a beneﬁt for the children
of the legatee. In the illustrations. the beneﬁt "cannot be obtained for the legatce".
because there were no children. The result is that the fund belongs to the legatce
(daughter or daughters). as if? the will had contained no reason why their
representatives take the entire interest.

22.5. The section would not apply where there is no intention to confer an
absolute estate on the dauglttcrs.'

22.6. Section l-10 rcads:--

"l40. Wliere a testatordocs 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 n-ot been
exhausted upon the objects contemplated by the will, remains a part of the
estate of the tcstator.

ll. LUSTRATIONS.

(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 children. The daughters
have no children. The fund belongs to the estate of the testator.

(ii) A bequeaths the residue of the estate, to be divided equally among his
tlaugliters. with a direction that they are to have the interest only during
tli.-ir lives, and that they at their decease the fund shall go to their chidren.
T'v.:. daughters have no children. The fund belongs to the estate of the
testator."

22.7. We have one recommendation to makewith reference to these sections,
which is common to all the sections. The word used in these sections is 'fund',
which would seem to suggest only movables. In our opinion, there is no reason"
why the sections should not apply to immovable as well as to movable property.
It is desirable to incorporate this change in the sections by substituting, in place
of the word 'fund' the word 'property' (with necessary consequential changes).
We recommend that sections 138 to 140 should be amended accordingly.

CHAPTER 23
BEQUESTS TO AN EXECUTOR: SECTION 141

23.1. The special topic of bequests to an executor is governed by section 141.

Under section l4l, if a legacy is bequeathed to a person who is named an
executor of the will, be shall not take the legacy, unless he proves the will or
otherwise manifests an intention to act as executor.

'Saitndarrninrz V. Na/arajan, (I921) l. _L. R. 48 Mad.'€r9(l(: (P.C.) o\'errulinVgmlV.l:.V 
Mad. 446.
'Anon!/ta V. Nagamutlm. (1881) l. L. R. 4 Mad. 200. (Hindu Law).

'See also Mokoondo Lal V. Goneslt. (1876). I.' L. R. lCal. 104(Hindu Law).



151

The illustration to the section is as follows 

"A legacy is given to A. who is named an executor. A orders the funeral
according to the directions contained in the will. and dies a few days after
the testator, without having proved the will. A has manifested an intention

to act as executor".

23.2. The rationale of this section is that when bequests are given to indi- Rationale,

vidnals in the character 01' executors and not as marks of personal regard only,
the implied condition is that the persons named must clothe themselves with the
cliaracter in respect of which the beneﬁts were intended.'--'-' Whether the legacy
is expressed in lieu of 'care and pains' or not, the donee must, in order to
entitle himself to the legacy "clothe himself with the character of executor"

23.2A. This is a principle of English law which has been followed in _Contr2_1ry ﬁntcntion
section 141. '1'.'nere is. however, one important point in respect of which thism h"3l'3l' law-
section differs from the English law, and the difference does not appear to be
justified. In England, it is permissible' to prove a c-ontrar_v intention; circumstances
\Vi1lL'll indicate that the legacy was intended for the executor personally, and
not annexed to the office of the executor, can always be shown.' For example,
it ditierence either in the nature or in the amount of legacies given to persons
named as executors is itself suilicient to show that the gift is not attached to the
oflice/'-7

Again. in liiiglisli law, the presumption does not arise \.'.herc the gift is
of the residue or of a part of the residue.'

23.3. Unfortunately, section 141 is expressed in preemptory language, and Indian section pm.
not in words that would operate merely as a presumption. The section categori- emptory.
cally assumes that every legacy is given to the executor as given in the character
of executor, thereby disallowing parol evidence to rebut the assumption.' Hence,
it is not possible to read, in the section, as it now stands, any proviso to the
effect that it shall operate only if no contrary intention is expressed in the will."

23.4. For obvious I"t"tiSOl'2S, it is desirable that the section should be subject Rec°mme.dati0mo
to an intention to the conrrary, as in English law." We. therefore, I'€CO1'l'ln'lC1'ld-.i;nend section 141,
that section 141 should be amended for the purpose, by adding. at the end,
the words "unless a different intention appears front the will."

CHAPTER 24
SPECIFIC LEGACIES--SECTIONS 142 TO 149

24.1. Legacies given by a will could be of_ various types--genei'al", specific," Types of legacies.
demonstrative," or residuary." General legacies have been brieﬂy adverted

'Brydges V. Walton, Vol. 171 Ves. & B. 135.

'Halsbury, 4th Ed.. page 65, para 1246-

3Harrfron V. Rawley, (1798) 4 Ves. 212 (Lord Alvanlej! M.R.).
'Ha1sburv.. 4th Ed.. Vol. 17. page 638, para 1246.

'Slaney  Watney, L. R. (1886) 2 Enquiry 418.

°Re-Appleton, (1885) 29 Ch. Div. 983.

71-Ialsbury, 4th Ed., Vol. 17, page 638, para 1246.

"Grijﬂth V. Pruen, 11 Simon 202.

'Prosono v. Administrator General (1888) I.L.R. 15 Cal. 83.
'°T.S. Rajam V. Pankujam, A.l.R. 1944 Mad. 335.

"Para 23.2., supra.
"Section 104.
"Sections 142-149.
"Sections 150-151
"Sections 102-103.



152

to in tli Act, in an earlier section.' Speciﬁc legacies are now more particularly
dealt with. The sections concerned with speciﬁc legacies, begin with a deﬁni_tion,
but a pretty large part of the sections is really concerned with what are not
speciﬁc legacies. Apparciitly, this over--elaboration was considered necessary in
view of two important legal consequences of a legacy being speciﬁc, namely,
(i) non-abatement," and (ii) possibility of ademptions'

Speciﬁc legacies are legacies of a speciﬁc part of the testator's property
which is distinguished from all other parts of his property--section 142. Sections
143 146 provide what are not speciﬁc legacies. Property speciﬁcally bequeathed
must be retained in the form left by the testator and 'does not abate----sections 147
and 149. The remaining section in the Chapter--section 148--is concerned not
with specific bequests, but with property comprised in a bequest to two or more
persons in succession which is not speciﬁcally bequeathed. Ademption of speciﬁc
legacies is governed by sections 152----l56, contained in a later chapter of the Act.

Bection 142* 24.2. Section 142 deﬁnes 2-. 'speciﬁc legacy' thus--
Speciﬁc legacy. , _ _ _
"W here 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". It may be mentioned that in this deﬁnition that words "speciﬁed
part" are crucial. In a speciﬁc legacy, the identity of the thing bequeathed must
be indicated in some speciﬁc way.'

As Dixon C.J. put it5 :--

"What marks a bequest as speciﬁc is that its subject matter is designated
as something that it does, at the time of the will, or shall at the time of
the death of the estatior, form an identiﬁable part of his property and is
so to speak, distinguished by the intention of the testator as ascer_taiiied
from his will to separate it in his disposition from the rest of his property
for the purpose of bequezathing it as the distinct subject of a testamentary
disposition."

In contrast to a speciﬁc bequest, a general legacy amounts to a direction
to the executors either to procure the property designated or to pay the lcgatee
the value of the property.

A demonstrative legacy stands midway between the two. It is one denoted
by words of the will which indicate that a gift is to be made primarily out of a
particular fund or from the proceeds of the sale of particular property, but the
gift is not to fail if the fund goes out of existence or proves inadequate.'

So much by way of general observations. So far as section 142 is concerned,
it does not seem to have presented serious difficulties and does not, therefore,
need change.

. 24.3. What are not speciﬁc legacies is a matter to which the Act devotes
°°"°" 143 TB°" l 0' b" t *ction Th intenti to distin ih a o ert t b
uestofcemin suma argc nuni ci _o 'St s._ e on gus pr p y mus e
mm stocks etc_,c1ear. On this principle, section 143 provides as under:--

1 which invested '

redescribed. "143. Where a certain sun: is bequeathed, the legacy is not speciﬁc merely
because the stock, funds or securities in which it is invested are described
in the will."
ILLUSTRATION

A beqneathes to B.----
"l0.000 rupees of my funded property?'

'Section 104.

'Sections 152 ~lo6.

3SeCtions l52---- 166.

«Stephen, Commentaries on thelaws of England(l950),Vol. 1, page 505,

3Mc Bride v. Hudson, (1961) 107 Commonwealth Law Reports 604 at p. 617, High Court

of Australia.
'Page: v, Huish, (1863) 71 English Reports 291, 294.



15'?

"l0,000 rupees of my property now invested in shares of the East Indian
Railway Company".

"l0,000 rupees, at present secured by mortgage of Rampur Factoryz"
No one of these legacies is speciﬁc.

The illustrations make amply clear the purport of the section, and no
changeappears to be needed in the section. '

24.4. Another instance of a legacy which is not speciﬁc is dealt with,, in 5000011 144-
section 144, which provides that where a bequest is made in general terms of a
certain amount of any kind 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.

The illustration to the section is as follows:--------

"A bequeaths to B, 5.000 rupees ﬁve per cent Government securities, A
had at the date of the will ﬁve per cent Government securities for 5,000
rupees. The legacy is not speciﬁc."

This section also needs no change.
24.5. This takes us to section 145, which provides as f0llows:~~ Section 145.

"I45. 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 f0rm, or remitted to a certain place."

Thus, as per the illustration to the section, where 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 realised in England, the legacy is not speciﬁc.

The section needs no change.

24.6. Section 146 provides as foll0ws:-- Section l46__Rc_

"Where a will contains a bequest of the residue of the testator's property :i,ﬁ:';,:ymb§ggf5'wi'h
along with an enumeration of some items of property not previously be-

queathed, the articles enumerated shall not be deemed to be speciﬁcally
bequeathed".

The section needs no change, not having created any problems.

24.7. According to section 147, where property is speciﬁcally bequeathed section ,47_ m_
to two or more persons in succession, it shall be retained in the form in which perty spgciﬁcguy
the testator left it, although it may be of such a nature that its value is conti- bﬂlueathed to two
nually decreasing. The rule is different where property is not speciﬁcally be-.:;£'s's"i':,g'°'5°"3 *3
queathed (Section 148). '

The illustrations to the section read as under:--

"(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, bequeathes 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".

The section is clear in its purport and the rule is fair enough, having
regard to the expressed intention of the testator.

It needs no change.

24.8. Section 148 reads as under:---- section 148.

((148. Where property comprised in a bequest to two or more person. 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.



I54

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 legatezs accoi'din_.<_r to the terms of the will."

ILLUSTRATION

"A, liming 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 in-
vested as stated in this section and the annual income arising from thefund
is to be paid to B for life. At B's death, the capital of the fund is to be
paid to C."

The section needs no change. It may be pointed out that the rule is diffe-
rent where there is a speciﬁc bequest.'

mm 149._,\i0 2-4.9. Section 149 rovides that if there is a deﬁcienc of assets to a
Sec . . . P . . . Y . P 3'
abateineiit of speci- legacies, a speciﬁc legacy is not liable to abate with the general legacies. As
ﬁ°l°8a°'°5- already mentioned," non-liability to abatement is one of the distinguishing

features of speciﬁc legacies The section reﬂects this principle and we have no
change to recommend in the section.

CHAPTER 25
DEMONSTRA'l'lVE LEGACIES: SECTIONS 150-151

25.]. Besides general and speciﬁc legacies, there is a third kind of legacy"
SC°P°- which consists of a pecuniary legacy payable out of a particular fund. Such
legacies are not "adeemed"' by failure of the particular fund. These are known
as "demonstrative" legacies, and are governed by sections 150 and 151.

"Demoiistrative legacy" can, in brief, be explained as a lagacy directed to
be paid out of speciﬁc pr0pert_y.°'

Section lS0--De- 25.2. Section 150 deﬁnes a demonstrative legacy as follows :--
' ' I a . .
a'C%ti)S€t(rl2.n"e cg Cy" "150. Where a tesiator bequeaths a certain sum of money, or a certain

quantity or any other commodity. and refers to a particular fund or stock
so as to constitute the same the primaiy fund or stock out of which pay-
ment is to be made. the legacy is said to be demonstrative."

By the Explanation to the section the distinction between a speciﬁc legacy
and a demonstrative legacy is thus explained :--

(a) Where speciﬁed property is given to the legatee, the legacy is speciﬁc.'

(b) Where the legacy is directed to be paid out of speciﬁed property, it
is demonstrative. There are three illustrations to the section.

"(i) A bequeaths to B 1,000 rupees, being part of a debtdue 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 corn which shall grow_in my ﬁeld of Green Acre";

 Chests of the indigo which shall be made at my factory of Ram-
pur"; '

'Section 147, supra.

*Para 24.1, supra.

'Halsbury, 4th Edition, Vol. 17, page 632, para 1230.

'Section 153.

5Cf. Section 150, Explanation.

'Letters (a) and (b) have been added for convenience of analysis.



155

"l0,000 rupees out of my five per cent promissory notes of the ('entral
Government":

1'/\n annuity of 500 rupees from my funded property";
"l,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 tiiillk
of Ramnagar."

(iii) A bequeatlis to B-
"l0,000 rupees out of my estate at Rainiiagtii". or clizirgcs it on his
estate at Ramnagar";
"l0,000 rupees, being my share of the capital L.'l1ll)2ll'l\CLl iii :1 certain
business."

Each of these bequests is demonstrative."

The section has raised no difficulties in its practical application and niiiy be
left as it is.

25.3. According to section l5l. where :1 portion of a fund is spceitically section ]5l_01.der
bequeathed and a legacy is directed to  paid out of the same f und, the portion of payment when
speciﬁcally bequathed shall first be paid to the legatee, and the demonstrative legacy directed to
legacy shall be paid out of the residue fund and so far as the residue shall be 3:' p"'g.°"'°ff f""'."
an" fl -1- t of ii 't ~ ."""'°'°5Pe°"

e Crent, out 0 tie genera asse s t e tes atoi_ ﬁe legacy.

The illustration to the section reads as under :----

"A bequeaths to B, 1000 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 1500 rupees; of these l',500
rupees, 1,000 rupees belongs 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 tcstator."

The illustration makes it clear that a speciﬁc legacy takes precedence met' a
demonstrative. legacy. At the same time, the demonstrative legacy can, if neces-
sary, claim participation in the residue.

We are making in a subsequent Chapter', a recommendation to combine
sections 151 and 157.

CHAPTER 26
ADEMPTION: SECTIONS 152 TO 266

1. Introductory

26.1. The topic of ademption of legacies is dealt with in sections 152 to
166. Where property 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 cannot take effect by reason of withdrawal of its subject--inatter
from the operation of the will. This is "ademption"----section l52. The rationale
is disappearance of the property in specie. In contrast, a demonstrative legacy
is iilot adeemed----scction 153. Ademption essentially rests on the presumed
intention of the testator. That at least. is the approach adopted by the Indian
legislature.

The concept of ademption is simple, but certain detailed provisions contain-
ed in sections 153 to 159 and l62----were considered necessary in order to pro-
vide for various situations in regard to which controversies could possibly arise.

Scope of Chapter

 1Paras"26. 13, 26.14.. infra.
85-L/B(Dll44MotLJ&CA»~l 1



Ademption -
Introductory.

Ademption the

concept.

Scheme of the
Sections.

156

Similarly, a few _provisions----_scction 160, 161 and 164 to 166--deal with cases
in WhlCh a speciﬁc bequest 15 not adeemed.

26.2. In general, ademption arises where an asset bequeathed by the will
ceases to conform to the testator's power of disposition, or ceases to conform to
the description given in the will, ademption may thus arise by reason of non-
existence of the subject matter bequeathed or by reason of change in its nature.
Non-existence of the asset, in its turn, might arise either from external factors,
(for example, destruction by the forces of nature), or from acts of the testator
(for example, by sale of the thing bequeathed by the testator between the date
of the will and the date of his death). A change in the nature of the asset may
arise, again, by external factors (for example, earthquake) or by acts of the
testator (for example, when the testator converts a golden chain into a cup of
gold). The common thread is withdrawal of the subject-matter from the opera-
tion of the will (S. 152). Sometimes, the change arises by reason of legislative
action. This aspect will be discussed in detail when dealing with the deﬁnition
of "ademption"'.

26.3. Indian case-law on the subject of ademption is rather scanty. The
theoretical interest of the topic is, however, considerable and one or two sections'
require a detailed discussion. As the sections on the subject are rather large in
number, it will be convenient to refer ﬁrst to a few general aspects and also
to the scheme of arrangement, so as to facilitate a better understanding of the
inter-relationship between various sections.

The heading of Chapter 17 indicates that the topic dealt with in these
sections is "ademption". The expression "ademption" is not directly deﬁned.
However, it is indirectly explained in the latter part of section 152, which pro-
vides that (in the circumstances dealt with in the section), the legacy is "adeemed",
that is to say, it cannot take effect by reason of the subject matter having been
withdrawn from the operation of the will. This explanaion is, in substance, the
same as the deﬁnition of "ademption" given in some of the English cascs~-such
as, "a failure of a speciﬁc bequest owing to the subject of the bequest not being
in existence in specie as a part of the testator's estate at the time of his death".

26.4. This general principle is dealt with in section 152, which applies
where there is a "specific" legacy, Section 153 rules out ademption in the case
of "demonstrative" legacies. Sections 154 to 157 and 166 deal with cases where
the testator, having bequeathed the "right to rweive a thing", himself receives
the thing bequeathed. Sections 158-159 and 165-166 relate to a particular kind
of property-----"stock". Sections 160-161 deal with the effect of removal of goods

, between the date of the will and the date of the death of the testator. Sections

laction 152 -Ademp-
tion explained.

163-164 deal with the effect of ti change in the situation of the goods. Sections
165-166, as already stated, deal with 'stock'.

The sections proper may now be dealt with.

ll, Ademption
26.5. Section 152 reads:

"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.

ILLUSTRATION :

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";-

(i)

'See discussion as to section 152, para 26.6., infra.
'For example, section 166. '



157

"all my household goods which shall be in or about my dwelliiig~liouse
in M. Street in Calcutta, at the time of my death".

A in his lifetime,----

sells or gives away the ring;

converts the chain into a cup:

converts the wool into cloth;

makes the cloth into a garment;

takes another house into which he removes all his goods.

Each of these legacies is adeemed.
(ii) A bequeaths to B-
"the sum of 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 adeemed.

(iii) A bequeaths to B certain bales of goods.

"A takes the goods with him on a voyage. The ship and goods are lost
at sea, and A is drowned. The legacy is adeemed."

26.6. In connection with section 152, it should be noted that the conver- Amendment".
sion of an asset by legislative action falls within section 163, and is outside commended.
section 152. Thus, compulsory changes in the nature of the asset when ctlected
by an Act of Parliament--for example, by nationalisation or otherwise,----do
not fall within section 152. We consider it desirable that the case should be
excluded from section 152 by caxpress words. For 'this purpose, we recommend
that in section 152, after the words "has been converted into property of a
different kind", the words "by act of pariz'es"_should be inserted. '

It is further to be noted that eveii as regards converted property, the section
leaves no scope for a different intention. We are of the view that it should, be
made subject to a proviso', whercunder the will should govern the converted
property as it would have governed the original property, if such an intention
can be inferred.

26.7. Section 153 deals with a demonstrative legacy, and its main object is section 153- No

to provide that there is no ademption in the case of a demonstrative legacy. ademption in case of
demonstrative le-
The essential distinction between speciﬁc legacy and demonstrative legacy 33°"

is one born of the intention of the testator. In the case of the former, the
testator shows an intention that the beneﬁciary should receive only a speciﬁed
thing, while. in the case of the latter, the testator indicates an intention that the
thing shall be taken primarily for the speciﬁed fund. but that any balance can
be taken from the residue in the event of deficiency".

The section does not seem to need any change. lt may, however, be noted
that the rule has been judicially construed as subject to a contrary direction in

the will".

26.8. Section 154 deals with the ademption of a speciﬁc bequest of a right 5 .

. . . . . . . ection 15.1.
to receive something from a third party. To state in simple terms the proposition

enacted in the section', where the right to receive is bequeathed and the speciﬁc

legacy is received by the testaor, the legacy is adeemedi The relationship of

this particular situation with the general concept of ademption as explained in

'Thisis nota draftofthe amendment. »
"'Re-Webster, Goss Vs We/>.srr/', (1937) 1 .-\ll E.R. (>02.
'C/iiimam V. Tadiko/irla, l.L.R. 29 Mad. 155.

'Cf. section 153.

'For contrast with section 162. see para 26.18. infra.



Sections

155 and

158

section 152, requires brief discussion. Ademption, as explained in section 152,
arises when there is a change either in the legal ownership or in the nature of
the property. This is the general concept. In the situation dealt with in section
154, though there is no physical change of the thing, the legal categorisation of
the thing is changed. What was an actionable claim--"right to receive"---(a
species of intangible property) is replaced by something tangible. There is no
alteration of the physical nature of the property, but its legal complexion does
change; and it is this altered legal complexion that causes ademption--the pre-
sumption being that the testator did not bequeath, and had no intention of be-
queathing, a thing with such changed legal complexion.

III. Ademption of part of bequest

269. Section 155 and 156 deal with the situation where a part of the thing

156 - Receipt of abequeathed is received and may be considered together. They read as follows :

. -part.

Recomrnestdation
to amend

Section

"155. 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."

"156. If a portion of an entire fund or stock is speciﬁcally bequeathed, the
receipt' 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".

26.10. The two sections seem to overlap, but do not, in fact, ove_rlap.

mﬁonThere is a distinction between the two sections, though it is not apparent at the
155 and section 156.ﬁrst reading. Section 155 applies where an entire thing is speciﬁcally bequeathed

157.

and then the testator receives a part of it, while section 156 applies where
the thing bequeathed itself is a quotient of the stock, and the testator receives a

portion of the fund, or stock. This should be made more clear; it is also desir~ .

able to introduce symmetry between sections 155 and 156----a symmetry which,
in certain respects, is lacking at present.

Accordingly, we recommend the following re-drafts of sections 155 and 156.
(Revised section 155-156)

"155. If an entire thing is speciﬁcally bequeathed, the receipt by the testator
of a part of the thing speciﬁcally bequeathed shall operate as an ademption
of the legacy to the extent of the sum so received."

"156. If a portion of an entire fund of 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 eceived; and the residue
of the fund or stock shall be applicable to the discharge of the speciﬁc
legacy''. '

26.11. Section 157 deals with the order of payment where a portion of a
fund is speciﬁcally bequeathed to one legatee and another legacy charged on the
same fund is bequeathed to another legatee, and the testator receives a portion
of that fund and the remainder is insuﬂicient to pay both the legatees. In certain
respects. the same topic is dealt with" in section 151, which deals generally
with the order of payment when a legacy is directed to be paid out of the fund
and a portion of that fund is also speciﬁcally bequeathed. In other words, com-
petition between a speciﬁc legacy anda demonstrative legacy is a common in-
gredient of both section 151 and section 157, and a speciﬁc provision for
cases where the residue of the fund is deﬁcient is also another common ingredient
of the two sections. However, the distinction between the two sections lies in
this, namely. that while section 151 deals with the generality cases section 157
deals with the speciﬁc cases where the problem arises because it is the testator
who receives a portion of the fund in his life time. So far as can be gathered
from the terms of the two sections, there is no difference in the actual rule
to be applied. The propotion enacted in section 157 is that from the fund in
question, the portion speciﬁcally bequeathed is to be paid ﬁrst to the legatee; the

'Le. the receipt by the testator.



159

residue of that fund is to be applied to the demonstrative legacy, and if there
is a deﬁciency, the rest of the legacy is to be paid out of the 'general assets of the
testator. The last mentioned provision' is in conformity with the general principle
that there is no ademption of a demonstrative legacy, and it shall be paid out
of the general assets of the testator where necessary,

26.12. This overlapping between sections 151 and 157 raises the question Recommendation
whether it is at all necessary to have both the sections in the Act. The law should, '° d°'°'° 5°°"°" 15'-
in our view, be simpliﬁed by deleting one of the sections and combining the gist
of the two sections in the other section~--cmitting, of course, matter which is
repeated in both. Deﬁciency under section 151 may arise because of initial inade-
quacy of the fund, while deﬁciency under section 157 may arise out of subsequent
inadequacy of the fund by receipt by the testator himself of a portion thereof.

But the efiect is the same. It would therefore be more convenient to omit
section 151, and to deal with the matter in section 157".

26.13. On the above assumption", the following redraft of section 157 Redraft of Samson,
is recommended :-- '

"l57(l) Where------

(a) a portion of a fund is speciﬁcally bequeathed to one legatee,
and . "~'e'

(b) a legacy is directed to be paid out of the same fund to another
legatee,

then-----

(i) the portion speciﬁcally bequeathed shall ﬁrst be paid to the legatee,
and

(ii) the demonstrative legacy shall be paid out of the residue (if any),
so far as it will extend, in payment of the demonstrative legacy.

"(2) If the remainder of the fund is insufficient to pay the demonstrative
legacy, so much of the demonstrative legacy as remains unpaid shall be paid
out of the general assets of the testator".

26.14. The illustration to section 151 may be transferred to section 157 as ]]]usu-aﬁon to sec-

illustration 1, and the present illustration to section 157 may be re-nuinbered as tion 151 to betrahs-
ferred to section

m"5"a'i°" 2- 157, after deleting
section 151.

IV. Stock

26.15. Two special provisions relating to legacies of Stock are _C0nl3in0d sections 153 and

in sections 158 and 159. If stock speciﬁcally bequeathed does not exist at the 1.59.

time of the death of the testator, the legacy is adeemed under Section 153.

Where stock speciﬁcally bequeathed exists only in part at the time of the death

of the testator, the legacy is adeemed so far as regards that part of the stock

which has ceased to exist. This is providedfor in section 159, wlnch, in reality,

carries out the same principle as is the basis of Section 153.

The expression "stock" is used in the two sections in a wide sense, as is
shown by the illustrations, and is not conﬁned to stock in a company. The

sections need no change.

26_16_ In thc case of speciﬁc bequests, certain questions arise where the sections 159 and
goods are described with reference to a certain place. The Connection of the 161
goods with that place might have disappeared at the time of death, and the
court has then to decide whether the connection is treated _as to be material so
that me speciﬁc bequest is adeemed, or whether the connection is, in the circum-
stances of the case, to be disregarded. To deal with this problem, two general

'Section 153. .
'Section 151 to be omitted, if the above recommendation 13 accepted.

.The assumption is that section 151 shall be deleted.



[60

rules have been enacted, in section 160. The first is that if the removal of the
goods from the speciﬁc place is due to a temporary cause, or by fraud, or
without the knowledge or sanction of the testator'. then there is no ademption.
This is to be found in section 160.

Secondly, section 161 provides that removal of the thing from the speciﬁed
place does not constitute an ademption, where the place is referred to only in
order to complete the description of what the testator meant to bequeath. The
illustrations to the section explain its purport. But the third illustration seems
to stretch the language of the section. It puts the facts as under :

"(iii) A bequeaths to B all his goods on board a certain ship, then lying
in the river Hoogli. The goods are removed by A's direction to a ware-
house, in which they remain at the time of As death."

The illustration then provides that the legacy is not revoked by ademption

Racommcndatgonm 26.17. Now, although it could be said that here the mention of the place
amend section 161. was, in a sense, necessary to complete the description of what the testator meant
to bequeath, a more convincing reason for not allowing ademption in such a
case is that, by the very nature of the case, the situation mentioned or
the place mentioned could only be temporary. A more accurate way of expressing
section, therefore, to cover such a case, would be to add, at the end of
section 161, some such words as "or where, by its very nature, the place is such
that the thing lItt'(]lI£'(ll/I('(l '.t'0ul't1 I'('/)1./llll at that place only for u tt>mp0rar_\'
period." a

We recommend that section 161 should be amended as above.

V. Receipt by testator

26.18. Section 162 provides that where the "thing bequeathed"-----which really
means "the thing speciﬁcally 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 pro--
perty, the legacy is adecme-d. This section is to be contrasted with section 154,
whereunder" there is ademption where the thing speciﬁcally bequeathed is the
right to receive something of value from the third party, and the testator himself
receives it. The reason why section 154 provides for ademption is that the
thing bequeathed is itself the subject to be extinguished, while the reason why
section 162 prohibits ademption is that the amount received retains its separate
identity. 1 3 *?;~4'"§'3{

In practice, it may not always be easy to determine, on the language of the
will, whether the case falls under section 154 or section 162. In the absence
of concrete Indian cases raising questions, however, it is not considered to disturb
the two sections on this point.

Section 162.

Recommendmion 26.19. However. it should be made clear that section 162 applies only

to amend section to "speciﬁc bequests", since the expression "thing bequeathed", in this context'

152- means the thing speciﬁcally bequeathed. This is clear from the later reference to
"mixture with the general mass". We recommend that section 162 should be
amended for the purpose, by substituting, for the words "the thing bequeath ",

the words "the thing .vpect'ficall_v bequeatlted."

Vi. Change in the thing bequeathed by operation of law.

26.20. Under section 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.

Section 163-
in a thing speciﬁ-
cally bequeathed.

*LTo:npa.'.: Section 154.
'Para 26.8.. supra.



I61

26.21. It should be noted that this is not the rule in England, even though Position
some of the commentators in India state that the Indian section is based upon Bhmdv

the English law. In England, ademption takes place even in such circumstances,
unless the statute which brought about the change in the nature of the pro-
perty makes a contrary provision'. The situation has been described as one of
"statutory disappropriation of property rights in favour of the state?" Often,
however, statutes do make a provision preventing ademption.

in En-

26.22. However, the legislature in India has adopted a different rule, per-Ru], in India,

haps on the assumption that since the change in question takes place without
the will of the testator, one can presume that he had not changed his intentions
as to affect the destination of the subject matter.

26.23. At this stage we should refer to a Delhi case relevant to change by new

operation of law. A Hindu executed a will according to which, on his death,
his property was to go to the second wife for her life time and, after the death,
equally to his son's sons from the first wife and the sons from the second wife.
The property was in the N. W. Province (now in Pakistan). After the partition
the family moved to India. On his death the widow claimed and obtained
compensation for the property left in Pakistan on the basis pf the will. She
later purchased some property in India from out of the compensation so received.
On the death of the widow, the son's sons from the ﬁrst wife claimed half
share in the property so purchased out of the compensation, relying on the will'.

It was held that the claimants were not entitled to the half share, The
compensation received was in thetform of money. By no stretch of imagination
it could be treated as property "situated in Pakistan". Once the property had
ceased to exist in its original form, the limitation on the rights of enjoyment no
longer applied. It would be too much to say that this compensation money had
to be preserved for ever in whatever form it goes and treated as if it was the
property referred to in the will. The widow could not be treated as being a
trustee under the terms of the will. She had no right to sell at all, being a limited
owner, If by accident, the property is sold either through legislation or through
other circumstances, then there is no obligation on her to live on the income
of that compensation and leave the corpus to the persons entitled to the
residue of the estate. Therefore, the doctrine of conversion could not be invoked
in the present case.

26.24. The High Court further held that there was no direction in the
will that any compensation received in respect of that property would go to the
persons who would otherwise have got the property. This meant that the gift
had been adeemed', because it cannot be given effect to. It was observed that
this was unfortunate, because if this situation had at all been in the mind of
the testator, he could have made a direction regarding the same. The testator
could have made a codicil or a new will regarding the compensation. But the
will was silent regarding the compensation and it could not be made operative
qua the compensation. In the circumstances, the suit was dismissed,

26.25. The judgment does not discuss section 163, and attention of the
court was perhaps not drawn to the section.

26.26. We may discuss another aspect of section 163. Where a change in Chang:
the thing bequeathed takes place by an order of the court, it should apparently Vofcourt.

be regarded as a change by 'operation of law' within section 163. Here again,
the common law was different, as illustrated by English cases' where, by an
order in lunacy proceedings, certain shares speciﬁcally bequeathed were directed

'Mellows, Law of Succession (1977), pages 523, 524.
'Sea; Re-Viscount Galway's Will, (1950) Ch. 1; (1950) 2 All ER. 419.
'Chaman Lal v. Kundan Lal, A.I.R. 1979 Delhi 240, parasll tol4(D.K.KapurJ.)(Novcm-
ber-December).
'Halsbury, 3rd Ed., Vol. 39 p. 934, Article 1412, cited.
'(al Jones v. Green, Law Reports 5 Eq. 555.
(b) Re-Freer, 22 Chancery Division 622.

C3.S€.

by order



-.--5.»,-. .

162

to be sold, and the proceeds were to be invested in other securities. The bequest
of such shares was held to be adeemed. The position in England was later
altered by statute'.

%c;1c;irpgr;wimoll?4- Ciﬁc 12l6.2b7. ling Igkescps to SCCIIOIIII 164, which provides that where a thing spe-
knowledge of [mm a y lelquea ie un ergocs a c angc without a ltnowledge or sanction of the
ton testator, t ere is no adcmption. This situation is analogous to that under section
. 160, whercunder removal of the goods from the place described in the will with-
out knowledge or sanction of the testator does not lead to ademption. No change

is required in this section.

Section 165-Stock 26.28. Section 165 provides that where stock which has been speciﬁcally

replaced after loan-bequeathed is lent to a third party on condition that it shall be replaced, and
it is replaced accordingly, the legacy is not adeemed, This section also does not
seem to require any charige,

section 166, 26.29. Section 166 reads as follows :

"I66. 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".

This section is based on the 'dictum of Lord Talbot in an early case'-".
Lord Talbot said in that case : "If the selling out the stock is an evidence to
presume an alteration of the intention of the testator, surely his buying in again
is as _strong an evidence of his intention that the legatee should have it again".
It should be noted, however, that later it has been held' that in England a legacy
is adecmed by the sale of the stock. and will not he reviverl by :1 new purchase
0f_SlIllll21l' stock by the testator.

There is, perhaps, some thing to be said for both the views. It can, on
the one hand, be said that the testator would not have intended to remove a
beneﬁt already conferred. On the other hand, it can be said that he would not
have sold the stock if he wished to continue the beneﬁt. In this position, it is
better not to change the section, leaving it to the testator to make an express
modiﬁcation of his will, if he so desires.

CHAPTER 27
PAY.VIF.l\"l' OF LIABILITIES IN RESPECT OF THE SUBJECT OF A
BEQUEST: SECTION 167 T0 170

Scope. 27.1. Payment of liabilities in respect of a bequest is regulated by sections
167 to 170. Two of the sections (167-168) deal with apportionment as to

persons who shall bear it particular liability or burden attaching to the subject'

of a bequest, while two are concerned with the approtionment of liability in
point of time. I

27.2. Section 167 reads as under:

167. (1) Where property speciﬁcally bequeathed is subject at the death of
thetestator 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 him-
self and the testator's estate) be liable to make good the amount of such

pledge or incumbrance.

Section 167- Non~
liability of executor
to exonerate speci-
ﬁc legatees;

'. Sect? ':1 123, Lunacy Act, 1890.

"Pnr'rri'.!grs» \'. Partridge, cas. Temp. Talb. 226. Paruck, Succession Act. (1977) p. 459.
°For eomirient,seeAvel_wz \'. Ward. 1 Ves. Sen. 420.

'Partisan v. Partisan, 1 My. & K. 12.



163

(2) A contrary inientioii shall not be ii1l'errcd front any direction which
the will may contain for the payment of the tcstator's debts generally.

"I;.X'['](IIt(ti'l'('I1. A pei'iodieal payment in the mi'urc of land-revenue or in
the nature of rent is not such an incumbrance as is contemplated by this
section.

ILLUSTRATIONS

"(i) A bequeths to B the diamond ring given to him by C. At A's death the
ring is held in pawn by D, to whom it has been pledged by A. It is the
duty of A's executors, if the state of the tes'.ator's assets will allow them,
to allow B to redeem the ring." A

"(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 As death. B, if he
accepts the bequest, accepts it subject to this charge, and is liable, as beween
himself and As estate, to pay the sum of 11.000 rupees thus due."

The section needs no change.

27.3. Thir; takes us to section 108, quoted below : éntioll m8_
1 _ _ _ , ' . Completion of tes
'l68. Where anything is to be done to complete the testators title of the ator's title to thin;
thing bequeahed. it is to be done at the cost of the testator's estate." b§'S1[l1°g;h*:1, *0 

C 13 C58

ILLUSTRATIONS

(i) A, having contracted in general terms for the purchase of a piece of
landgat a certain price, bequeaths it to B, and dies before he has paid the
purchase- money. The purchase-money must be made good out of A's
assets.

(ii) A, liaviiig contracted for the purchase of a piece of land for a cgtaiii
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 pur-
chase--moiiey must be paid out of A's assets'.

The section needs no change.

27.4. Section 169 is as follows :

"I69. Where there is a bequest of any interest in immovable property in section 159_
respect of which payment in the nature of the land--revenue or in the nature

of rent has to be made periodically, the estate of the testator shall (as bet-

ween such estate and the legatee) make good such payments or a proportion

of them, as the case may be, upto 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."

27.5. The principle is that in case of bequests of an immovable property,
the rents and taxes in respect of that property upto the time of the testator':
death, should be paid out of the testator's estate. and the taxes etc. after the
death of the testator should be paid by the legatee. The same rule of apprtionment
is laid down in the Transfer of Property Act, 1882'.

Under the section in the Succession Act, it is the land revenue and rent
that are directed to be apportioned. Under the Transfer of Property Act, the
apportionment applies to rent, annuities, perisioris, dividends imdother periodical

payments.

.7 K'Section 36,TransferofPropertyAct,1882. _



Jability for tax.

Section 170 calls
on shares.

iDefect in the tet-
tminology of section
1170.

164

27.6. These sections are silent as to tax on income. As regards the liability
of the legal representative to pay income~tax, the law is that where tax has
already been assessed as payable by a person and he dies, his executor, adminis-
trator or other legal representative is liable to pay the same out of his estate so
far as the estate is capable of meeting the charge of income-tax'.

The Income Tax Act" casts a liability upon the executor or administrator
to pay the tax which the Icstazor would have been liable to pay. This obviously
relates to the liability relative to the period before death. As section 169 has not
so far created any problems, we would leave the section as it is,

27.7. Section 170 deals with liability in respect of call or other payment on
stock in a joint stock company, and is as follows :---

"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 pay-
ment shall, as between the testators estate and the legatees be borne by the
estate; but, if any call or other payment; becomes due in respect of such
stock after the tesLator's death, the same shall,  between the testator's
estate and the legatee, be borne by the legatce, if he accepts the bequest."
There are live illustrations to the section, as follows 2--

"(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 3 call which had been duly inadc, and the
sum of five rupees in respect of each share, being the amount of in.-
terest which had accrued due in respect of the call. These payments
must be bore 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 B his shares in a certain railway. B accepts the
legacy. After A': death, 2. 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 share--holder 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, pay-
able by three instalments. A bequeaths his shares to B and dies bet-
ween the day ﬁxed for the payment of the first and the day ﬁxed
for the payment of the second instalment, and without having paid the
first instalment. A's estate must pay the ﬁrst instalment, and B, if he
accepts the legacy, must pay the remaining instalments".

27.8. The terminology of section 170 seems to suffer from a serious diﬁcieney,
inasmuch as it uses the words "stock i.n a joint stock company", and omits to
mention 'shares'. though illustrations (ii) to (iv) to the section do mention
shares. To an ordinary person, the word 'stock would not include 'shares'. Prima
facie, it appears desirable that shares should be continued speciﬁcally in the section.

The legislative usage in the Companies Ac' may be referred to in this
context. Under that Act3, 'stock' is the aggregate of fully paid up shares legally
consolidated, portions of which agreogate may be transferred to split up intg
fractions of any amount of shares. 'Share' means share in the share capital of

'Section 159, Income Taxt 1961.
'Section 159, Income Tax Act, 1961.
'Section 566, Companies Act, 1956.



165

the company and includes stock, except when a distinction between stock and
share is expressed. Where the shares itrtve been fully paid up, they may be turned
into stock, and notice must be given to the Registrar.

Tl1e term 'Joint Stock Company' is deﬁned by the Companies Act', as it
company having a permanent paid up or a nominal share capital of a ﬁxed
amount divided into shares. also of ﬁxed amount, or held and transferable as stock,
or divided and held partly in the one way and partly in the other, and
formed on the principle of having, for its members the holders of those shares
or that stock. and no other person.

27.9. Reference may also be made in this connection to a decision of the
House of Lords'. In that case, the testator had bequeathed to his wife 'Ieasehold
estates and all such stocks in the public funds, or shares in any Railway of which
1 may die possessed,' and, on failure of issue, he gave to his brother the same
leashold estate, stock. shares, moneys and securities". The question was whether
the 'shares' and 'stocks' were two difrerent things, in view of the fact that the
testator consciously used both these terms in his will. It was held that manifestly,
for every purpose, share and stocks were alike share when paid up, grew into
stocl<,..and. were put upon a special Register for the convenient management of
business, but, in substance, they continued to be the same thing, and may well
pass by the same words unless there be a clear difference made between them.

27.10. It appears to us that instead of driving the reader to deriving the
meaning of 'stock' from the illustrations under section 170 or to other sources,
the Act should expressly mention the word 'shares' in the body of the main
section. The layman is more frequently concerned with 'share' than with stock.
We, therefore, recommend that section 170 should be suitably amended, so as to
add an express mention of 'shares'. The following is :1 suggested re--draft of the

section for the purpose :
Revised section 170

"170. In the absence of any direction in the will, where there is a speciﬁc
bequest of stock in a joint stock company or shares in a company with
limited liabilities,

(a) it" any call or oher payment is due from the testator at the time
his death in respect of the stock or shares, such call or payment shall, as
between the testator's estate and the legatee, be borne by the estate;

but-

(b) if any call or other payment becomes due in respect of such stock
or shares 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 as at present.

CHAPTER 28
BEQUESTS OF THINGS

28.1. Bequests of things "described_, in general terms" 1'-ttrnt the subject
matter of a chapter comprising two sections. The problems that these sections
address themselves to are such as arise out of the generality (or- vaguen-,,-gs) of
the description of the thing bequeathed. Because of the implicit vagueness a
certain elasticity of action is provided (section 171) and a bequest of interest
can be construed asbequest of the principal also (section 172).

'Secton 566, Companies Act, 1956.
"Frederick F. J. Marrice v. George E. Aylmer. (1875) 7 H. L. 717.

Decision of House
of Lords as to
Meaning of 'stock',

Recommendation
as to section 170

Scope.



Section 171- Be»
quest of thing des-
cribed in general
terms.

' Section 172.

Recommendation
to amend section
172.

166

28.2. Section 171 reads--

"I71. 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}-hol,rses or a dimond 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."

The section needs no change'.
283. Section 172 reads--

'-*'172. Where the interest or produce of a fund is bequeathed to any person,
and the will affords no indication of an 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 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% per cent promissory notes of the
Central Government to B for his life, and after his death to C. B is entitled
to the interest of the notes during his life, and C is entitled to the notes
upon B's death.

(iii) A bequeaths to B the rents of his lands at X. B is entitled to the
lands".

28.4. Judicial decisions'-' take the view that the section applies to immovable

property'. The view requires support from the third illustration.

In our opinion, it would be useful to alter the language of the section
by making this position more explicit. The word 'property' should be added in
the section, since the word 'fund' is not quite appropriate for immovable property.
Accordingly, we recommend that section 172 should be revised as under:

"172. Where the interest or produce of a fund or property is bequeathed
to any person and the will affords no indication of an intention that the
enjoyment of the bequest should be of limited duration, the principal of the
fund or the property, as the case may be, as well as the interest or produce,

shall belong to the legatee".
(Illustrations as at present).

CHAPTER 29 .
BEQUESTS OF ANNUITIES: SECTIONS 173 T0 196

29.1. Bequests of annuities are dealt within sections 173 to 176. The
provisions are of a miscellaneous character. Incidentally, secton 176 has nothing

'Compare section 104.
"(a) Heniungiui v. Nabin Chandra, (1882) I.L. R.8Cal. 788.
(b) Adrninistrator General V. Hughes, (1913) I. L. R. 40 Cal. 192, 214.

'See also illustration (iii).



167

to do with annuities, but provides that no bequest is adeemed by a subsequent
provision made by the testator for the legatee.

Sections 173-] 74

29.2. Sections 173 and 174 can be considered together.
Section 173 reads-

"173. Where an annuity is created by will, the legatee is entitled to receive Annuity Created by
it for his life only, unless a contrary intention appears by the will, notwith-- ;';'l'yl::3;:s';':g'§{r:':';'
standing that the annuity is directed to be paid out of the property gene- intentiohappears by
rally, or that a sum of money is bequeathed to be invested in the purchase will.

of it.
ILLUSTRATIONS

"(i) A bequeaths to B 500 rupees a year. Bis 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 G5 death to C.
B is entitled to an annuity of 500 rupees during his life. C, if he survives
B, is entitled to annuity of 500 rupees from B's death until his own
death."

Section 174 reads-

"174. Where the will directs that an annuity shall be provided for any Period of vesting
person out of the proceeds of property, or out of property generally, or Whcfc will difécti
where money is bequeathed to be invested in the purchase of any annuity $i'§';é'",;',:'t't',;f"°p:":'°:
for any person, on the testator's death, the legacy vests in interest in the cm]; of 9,095",
legatee, and he is entitled at his option to have an annuity purchased for him Or Out 91' Proper'?
or to receive the money appropriated for that purpose by the will. §n"3:;:,l"bc';:,e:,'f'|e"j
to be invested in
purchase of annuity

ILLUSTRATIONS
(i) A by his will directs that his executors shall, out of his property. pur~
chase an annuity of 1000 rupees for B. B' is entitled at his option to have an ,
annuity of 1000 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.

29.3. There is an inconsistency' between sections 173 and 174. Under sm- Inconsistency-

tion 173 even if a fund is set apart for the payment thereof, an annuity is to be
taken as for life only (and not as a perpetual one). Under section 174, however,
where a fund is set apart for the payment of the annuity, the annuitant has the
option to claim the capital asset (fund) so set apart and the section (174) is
widely expressed so as to cotter even life annuities. Thus, where a fund is set
apart for payment of an annuity, there arises a conﬂict befween the two sections.
The conﬂict can be reconciled by excluding, from section 174, cases where the
annuity is for life only or where it otherwise appears that it is not intended to

be perpetual.

sections :----

two Recommendation
to revise sections
173-174.

29.4. On this basis, we recommend the following changes in the

(i) Section 173.
The latter halt' of section 173, beginning with the words 'notwithstanding

that - - . . . . . . - . . . ..", should be replaced by the reverse rule, namely, that in
cases where the annuity is directed to be paid out of a property etc. there will

be a rebuttable presumption that the annuity is perpetual".

'Cf. Paruck, Session Act (1966), page 393.
'For draft of the revived Section. see below.



Section 175 abate-
ment of annuity.

Section 176: Gift
of annuity coupled
with residuary gift.

Scope of the chapter
and departure from
English law.

168

(ii) Section 174.

Section 174 should he qualiﬁed by conﬁning it to cases of perpetual annuity.
The revised sections will read as follows:

Revised section 173

"l73. (1) Subject to the provisions of sub--section (2), where an annuity
is created by will, the legatce is entitled to receive it for his life only,
unless a contrary intention appears by the will.

(2) Where the annuity is directed to be paid out of the property generally,
or a sum of money is bequeathed to be invested in the purchase of it, it
shall be presumed, until the contrary is proved, that the annuiy is perpetual."

Revised section 174

"I74. (1) Subject to the provisions of sub-section (2), 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.

(2) The provisions of sub-section (1) shall not apply where the-annuity is
for life only or where it otherwise appears that it is not intended to be per-
petual."

29.5. Section 175 reads :--

"175. Where an atmuity 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."
The section needs no change.

129.6. Section 176 reads--~

"l76 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."

The section also needs no change.

CHAPTER 30
LEGACIES TO CREDITORS AND PORTIONERS (SECTIONS 177 TO 179)

30.1. Legacies to creditors and portioners form the subject matter of
section 177 to 179. Before discussing the gist of sections 177 to 179, it would
be worthwhile to point out that the provisions of these sections depart from the
English law, and that the departure is deliberate and justified, The rule in
England is that where a bequest is given to a person who is a creditor of the

testator, then, in the absence of an intention to the contrary, the bequest is_

regarded as given in "satisfaction" of the prc-existing debt, that is to say, it is
regarded as an extinguishment of the existing claim, and not as a separate legacy.
This rule of equity is known as "satisfaction of debts by legacies". Similarly, in
England, where a "portion" or part of a person's estate agreed to be given
to a child is followed by a legacy to that child. the rule that equity leans ag_ainst
double portions is attracted. In the absence of an intention to the contrary, the
presumption of equity is that the bequest is in satisfaction of the portion agreed
to be given to the child. The presumption is based on the improbability of a parent
intending a double portion for one child to the prejudice of other children



169

30.2. To make the discussion comprehensive, it should be pointed out Rule of_"Satis- _
that in England, the equitable rule of "satisfaction", considered in all its as- f"°"°""'"E"3'"'
pacts, arises' in four classes of cases, namely, (i) satisfaction of debts by lega-
cies', (ii) satisfaction of legacies by subsequent legacies, (iii) satisfaction of
portiops by legacies', and (iv) satisfaction of legacies by portions or advance-
ments.

In India, sections 177 to 179 of the Act make a clean sweep of the doctrine
of "satisfaction" in regard to all the four cases mentioned above. The first case
is dealt with in section 177; the second case is dealt with in section 179;

The third case is dealt with in section 178, and the fourth case is dealt
with in section 179. vide the words "by settlement or otherwise' which occur
in that section.

30.3. This departure from English law was deliberate, as is evident from Dcpanurefromsm
the Report of the Law Commission'. The Law Commissioners regarded the ject law dclibetat:
English rule as objectionable and inapplicable to India, and wished to avoid the
diﬂicult enquiry as to the intentions of the testator which has to be undertaken
according to the English ruie. .

We are now in :1 position to discuss the section proper.

30.4. This takes us to section 177. Sect'ons 177 and 178 may be considered section; 177 an
together. They read-- 173-

"l77. Where a debtor bequeaths a legacy to his creditor, and it does not
appear from the will that the legacy is meant as a satisfaction of the debt,
the creditor shall be entitled to the legacy, as well as to amount of the
debt."

178. Where a parent, who is under obligation by contract to provide a por-
tion 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 satis-
faction 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, covenant-
ed that he would pay to each of the daughters of the intended marriage a
portion of 20,000 rupees on her marriage. This 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."

30.5. The sections, so far as they go, are satisfactory and judicial decisions Sections I77& 17.
do not seem to have created any serious problems. There is one situation, how- Need for speciﬁ
ever, about which a speciﬁc rule appears to be desirable. There is no provision rule as to bequest t:
in the Act as regards bequest to a debtor. though a bequest by a debtor is d°b'°'-
covered by section 177. It appears that in England. where the legatee of a gene-
ral legacy of a share or a residue is a debtor to the estate, he is not entitled
to receive the legacy without first bringing his debt into account; and, for
this purpose, it makes no difference whether the debt is alive or is barred by limi-
tation. A similar rule has been judiciallyapplied in India. In a Calcutta, case',

A and B were indebted to the estate, and died without .sari.rfying their debt (the

1Pomero_\', Equity Jurisrvudence, paragraph 521, referred to in ND. Basu, Law of Succession
(1957), pages 551,552.

*TrIIbnt \'. .5'/u'rwrb1u'y. (1711) Pr. Ch. 39-1.

"Exp. P_rv., IS \'cs 140.

'Re pollork, 23 Ch. D. 552.

"Report of the Law Cwnznission, 23rd June, 1363, Ga7ette of Iridia»---Ist July, 1864, page 54.
'Loke Nam Mulliek V.Gdoyachwar, (1881) l.I_.R. 7 Cal. 644.



pcommcndation.

'pope.

I

tion l80-~Cjr-
instances in which
tion takes place.

txcine of appro-
; te and reprobate.

170

debts were barred by limitation). Their descendants claimed a share in the estate

of the testator, apparently under it will. It was held that they could not be allowed'

to receive the share without iirst stllls'l}ing the debts due from them to the
estate. .

This is really analogous to setting off the debt against the legacy: Justice
and the presumed intention of the testator support such a course.

30.6. It may be w0rth\\'hile to codify this judicial interpretation. We re-
commend that for this purpose :1 new section l77A should be inserted as
follows :--

"l77A. Where a ccrditor bcqueatlzs a legacy to /as debtor, and it does
not appear from the will that the legacy is to be paid even if the debt is
not repaid by the dcbtor, the debtor shall not be entitled to the legacy unless
so much of the debt as has /tcrotm' (ll/(' and payable has been repaid."

CHAPTER 31
ELECTION; SECTIONS 180 T0 190
I. Principle of election
31.1. The topic of election is dealth with in eleven sections (180 to 190).

A person on whom a benefit is conferred by a will must adopt the whole
contents of the instrument, confomi to all its provisions and renounce every right
inconsistent with it. This in brief, is the gist of the doctrine of election which
forms the basis of this Chapter. The basic section is section 180, the rest being
concerned with particular applications of the doctrine or qualiﬁcations thereof.

31.2. Section 180 formulates the principle in these terms.

"I80. Where a person, by his will, professes to dispose of something which
he has no right to dispose of, the person to whom the thing belongs shall
elect either to conﬁrm such disposition or to dissent from it, and, in the
latter case, he shall give up any beneﬁts it-/zirlz may have been provided for
him by the will"'.

31.3. In Douglas Benzies v. Upphelby', Lord Robertson referred to the
principle of election as being the same as the doctrine" of "approbate and repro-
l~:1tc",A and observed :

"In considering the merits of the decision appealed against, it is well to
remember what is the doctrine of approbate and reprobate invoked by the
appellant. Although the name is different, the principle as was laid down
by Lord Eldon in Ker v. Wauchope', is the same as that of the English law
of election. It is against equity that any one should take against a man's
will and also under it. This rests on no artiﬁcial rule, but on plain fair
dealing. If any one has the right by law to take a share of a testator's
estate, which the testator has not given but has otherwise disposed of, that
person takes it against the will and cannot go on to found on the will and
claim its beneﬁts".

In a later case" Lord Atkinson quoted with approval the passage above cited
from the judgment of Lord Robertson.

'Emphasis adopted.

'DougIas Menzies v.Upp/telby, (1908) A.('. 224. 232.
,Scc also para 3l .2. supra

'Ker v. Wauchope, (1819) 1 Bligh l.

"Pt'rntan v. Gram Ewing, (1911) A.C. 217.



1/]

31.4. The principle that 21 person cannot both "approbate and reprobate"
( to use terms used in Scottish Law)', ﬁnds expression in the law of Wills"
as also in the law of deeds". The principle is discussed by the Editor of Swaiistoifs
Reports. in a very learned note on the leading English east; on the subject'.

3l.5'. The principle is of universal application. and is not peculiar to Eng- Um'\,¢,-sat
lish law. As the Privy Council observed long ago', it is "common to all law application.
which is based on the rules of justice. vi7.., the principle that 11 party shall
not at the same time nﬂirni and disaﬂinn the same transaCtion~--atiirm it as far
as it is for his beneﬁt and disafﬁrm it. as far as it is to his prejudice".

It'. therefore. it tcstator has purported to dispose of property which is not
his own. and has given a benefit to the person to whom that property belongs.
the dcvisec or legzitcc, acccp1r'irg the benefit so given to him. must make good the
testatofs attempted disposition. But. if on th-e contrary, that person choses to
enforce his proprietary rights against the testator's disposition. then equity will
sequester the property given to him. for the purpose of making .tatz'sfacn'on out
of it to the person whom he has disappointed by the assertion of those rights.
This is the broad position in l'-'.11-__'lzmd_ resulting from the principle referred to
above.

With a very important difference _(to be presently noticed)'. section [80
also carries out the principle referred to above.

ll. Juristic basis

31.6. At this stage. an examination of the juristic basis of the principle of Juristic basis.
election is necessary. Historically speaking, there have been three suggestions
as to the basis of the rule of election. namely, (a) implied condition_ (b) pre-
sumed intention of the testutor. and (c) equity,

(at) in the beginning, the view prevailed that the testutor gave his property
to the recipient on the implied condition that the recipient would give his property
to the third party? This explanation. however, is not accepted now.

(b) Later, it theory was advanced that the doctrine of election W35 based
on the pmmmed imentiwz of the testator; but this theory was also rejected by the
House of Lords'. '

tel The explanation now accepted is that of equitable basis. lord Cairns
expressly observed' in I874 that the rule of election was not based eitheron the
testzitofs intention. or on his presumed intention, It is based on considerations
of equity. This view was reiterated in 1920'".

31.7. It is non generally accepted that in order to achieve a just result in presest undo',
the circumstances of the case equity imposes this rule as kt matter of conscience. slat1dinginEngland.

To quote. Vieount Haldancis observations in Brown v. Gregson" :

"The doctrine of election rests on a different foundation, it is a principle
which the courts apply in the exercise or' an equitable jurisdiction enabling
them to secure a just distribution in substantial accordance with the general
scheme of the instrument. It is not merely the language used to which the

i(']L1)(I.'l':"/(I\ li'en:ir'.\ t. L'_/lp./l('//}_l, H908) A.('. 224 (Lord Robertson}.

'See also para 31 .5. Injru.

'Compare section 35. Trzmsfer of Property Act. HS82.

'Dillon \. Pnrler, I Swan 359. partieuiar|_v. notes at pages 381. 384.
"Rungammu \. /lI'('bIlIIIl(l, 4 M. I. A. I. I0 (P.C.l.

'See para 31.6, infra.

"y. Nos' Mordaunr. (l70ol 2 'verti. 58l.

"Cooper \. Camper. (I874) La\\ Reports 7. H, L. 53: (1874-80) All E.R. Rep. 307.
'Cooper \. (paper. (1874) l.. R. 7 H. L. 53: H874-80) All. E. R. Rep. 307.
"Brow/1 \. UI'e'g.5't)II, H920) A.C. 860. (1920) All ER. Rep. 730, 734 (H. L.).
"Brown v. (y'regson.'( E920; A.('. 360, ([920) All I-LR. Rey. '/30, 734 (H. L.).

35 --L,t B(D'i14.4Moi'LJ&CA~--» 1 2



Whether forfeiture

just -and fair.

172

court looks. A tcstator may. for instance. have ob\-'iously failed to realise
that any question could arise."

"But the court will nonetheless hold that a beneﬁciary who is given a share
under the will in assets. the total amount of which "depends on the inclu-
sion of property belonging to the beneficiary himself which the testator
has incthsctively sought to include, ought not to be allowed to have a share
in the assets effectively disposed of excepting on terms. He must co-operate
to the ('.\'(etlI reqttt'st'te" to provide the amount necessary for the division
prescribed by the will. either by bringing in his own property, erroneously
contemplated by the testator as forming part of the assets, or by submitting
a diminution of' the share to which he is prima facie entitled to an extent
equivalent to the value of his own property if withheld by him from the
common stock, As was said by Cairns. L.('.. in (0()])('t' v. Cooper? this
condition arises not as on a "conjecture of LI presumed intention, but
. . -- . . . . . ..on a rule of equity founded on the highest principles of equity.
and as to which the court does not occupy itself in ﬁnding out whether the
rule was present or was not present to the mind of the party making the
will." I

31.8. This juristic basis~the basis of equitywdirectly leads to a consideration
of certain aspects of the section in our Act. The precise question to be examined
is. whether considerations of equity' necessitate total farfeitztre of the benefit
which the will proposes to give to the unwilling legatee (as is the present law
in India), or whether it is enough if the disappointed legatee is compensated (as
is the law in England). In our view, it is enough if the unwilling legatee is permit-
ed to retain what the testator has left to him, on condition of compensating the
disappointed legateg for the loss of the beneﬁt which the tcstator intended for
the disappointed legatee. The present English law compels the refractory legatee
(the Iegatee who does not comply with the will), merely to compensate the
disappointed legatee. The Indian law lays down forfeiture of the legacy proposed
to be given to the legatce who does not comply with the will; and, in effect, the
balance goes to the residuary legatec of the testator. This is clear from illustration
(it to section 182'.

Ill. Emphasis on intention misplaced

31.9. When the matter is viewed in the above light. it becomes a question
for srious consideration whether the law in India, as incorporated in section
180, should not be changed. The present law appears to beunduly harsh. It
places too much emphasis on the le.s'tctt0r'.s' intention. The emphasis might have
been derived from the Roman law', but there is no reason why we should now
adhere to that old doctrine. Perhaps. the Indian section still sticks to the old
position because. at the time when (in 1865) the statutory provision on
the subject was introduced" in India for the first time in the law
of succession. the position in England was not very deﬁnitely settled, that is to
say'. whether there should be compensation or there should be forfeiture, was

'Emphasis supplied.

'ffuoper V'. Cooper. L. R. 7 H. 1., 53, ()7: (1874-80)AllE.R. Rep. 307.
'Para 31.7. sttpru.

'Para 31 . 13, infra.

Theillustrations are wrongly placed under section 102, and should, have been placed under
section 180 or sectin 18!.

'See Buckland. Equity in Roman Lan. pages 95-100 referred to by Hanibury. Modern Equity
(1957), pages 502. footnote 6. .

'Section :67, Indian Succession Act. 1865.

'See para 36.6, supra,



I73

not V61') clear. Possibly. some misunderstanding of the position was also caused
by Swantstorfs note to one of the cases which reads:

"it is a tnttxim not of morality but of logic. which compels election between
claims in respect not of the injustice. but of the technical inconipattbility
of their contcmporaneous assertions."

31.10. lt also appears that some anibiguity is inherent in the expression
"clection". which may either mean a right of choice between two liequcsts (on the
one hand). or a right to make it choice in favour of retaining his own property.
on terms of compensation. Apparently, in civil law. the refractory donee could
not retain the property belonging to him on terms of compensation to the disap-
pointed claimant. He t'orl'cited the benelit. Bttt this does not appear to be at just
course of action.

The present English rule' is more fair and should be adopted. Compensation
does justice to both the parties and the law need not compel forfeiture of the hem.
tit given to the rel'ractory doncc.

3l.l l. In the light of the above discussion. we recommend that section 180
should be revised as under 1-

"l80. Where it l('.¥!a(t)t', by his will. prot'esses to dispose of sortie thing which
he has no right to dispose of. the person to whom the thing belongs shall
elect either to conﬁrm s_uch disposition or to dissent from it: and in the
latter Case, he shall compensate any person who has, by virtue of such elec-
tion. lost the />ene_ﬁt.s' provided for him /7_\' the will, .S'(l(Y/I ('()HI[)8t1.\'ati0n not
to exceed the hem'/it.s' which Illtl)' have /'C'(')l /2rnri:le(/ hr the will for the
person so (Iis.s'ettIiitg."

V. Effect of election

31.12. According to section l8I. an interest relinquished in the circumstan_ces
stated in section 180 shall devolve as if it had not been disposed of by the will
in favour of the legatec. 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. The section should be deleted, if section 180 is antended" as
recommended above. since there will be no "relinquishment by the lcgatee".
after such amendment of section 180.

We recotntnend accordingly.

3l.l3. Section 182 reads :--

80 and l8] apply whether the testator does or

"The provisions of sections l
he professes to dispose of by his will to be

does not believe that which
his own.

ll.LUS'l'RA'l'l()NS

(ii 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. (' forfeits his legacy of l.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 estateto 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 l.000 rupees. and to (' an estate which will. under

a settlement. belong to B if his elder brother (who is married and has

'Para 3| .8. supra.
-zgce para 3l . l l, supra.

Ambigt_tity of the

expression "elec-
non' '.
Recommendation
to revise section.
I 80.

Section I 8 I ---
Delectton
recommended.

Section 182.



Section 183.

Section l84----pcrson
deriving beneﬁt in-
directly not put to
election.

174

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 pro~
perty 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 whatso-
ever and whercsoever". 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." '

(As already pointed out' the illustrations should really have been placed
under section 180 or 181 ).

31.14. The reference in section 182 to section 181 should be deleted, if
section 181 is deleted as recommended'. The illustrations to the section will
require change. if our recommendation' to 'substitute compensation for forfeiture
is accepted.

Illustration (iv ) has become obsolete

in view of present English law as to
the age of majority, and should be deleted. '

On the above basis. the illustrations to section 182 may be revised as

under :

"('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 must pay B compensation of 800
rupees.

(ii) A bequeatlts 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 give up the jewel (thus conﬁrming
the disposition) or (if he elects to retain it) pay compensation to C to the
extent of the value of the jewel, but not exceeding the value of 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 give up the estate or (if
/10 elects to retain it) pay compensation to C to the extent of the value of
the estate, but not exceeding one thousand rupees.

(Present illustration (iv) to be omitted).
31.15. Section 183 reads as under :--

"183. A bequest for a persons benefit is. for the purpose of election, the
same thing as a bequest made to himself.

ILLUSTRATION

The farm of Sultanpur Khurd being the property of B, A bequeathed it to
C; and bequeathed another farm called Sultanpur Buzurg to his own execu-
tors with a direction that it should be sold and the proceeds applied in pay-
ment of B's debts, B must elect whether he will abide, by the will, or keep
his farm of Sultanpur Khurd in opposition of it".

The section needs no change, not having created any problems.

31.16. Section l84 rcads--

"I84. A person taking no beneﬁt directly under a will. but deriving a beneﬁt
under it indirectly. is not put to his election.

I L LUSTRAT I ON

The lands of Sultanpur are settled upon C for life, and after his death upon

D. his only child. A bequeaths the lands of Sultapur to B, and 1,000 rupees
z.».;;:.; 31.8. at... A " i    ""
23¢: para 31.12, supra.
'See para 31.12, supra.



175

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 Sul-
tanpur which accrued after the death of the testator and before the death of
C In his inidividual character he retains the lands of Sultanpur in opposition
to the will."

This section also may be left as it is.

3l.l7. Section I85 reads__ Section 185.

"N55. 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 L000 rupees under the will."

The section needs no change, being based on the sound principle that the
capacity in which a person takes a beneﬁt is distinct from that in which he opposes
the will.

31.18. Section 186 gives effect to a speciﬁc expression of intention by the section 1%
testator. It reads-

"l86. Notwithstanding anything contained in sections 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 given to him by the will,

ILLUSTRATI ON

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 to 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 she is entitled to under the settlement. She is bound to relinquish the
annuity, but not the legacy of 1.000 rupees."

The section needs no change.

31.19. Acceptance of a beneﬁt given by a will constitutes an election by the Section 187
legatee to take under the will, if he had knowledge of his right to elect and of those '
circumstances which would inﬂuence the judgment of a reasonable man in making
an election, or if he waives inquiry into the circumstances. This is the provision
in section 187. illustrated as under:

ILLUSTRATIONS

(i) A is owner of an estate called Sultanpur Khurd, and has a life interest in
another estate called Sultanpur Buzurg to which upon his death his son B
will be absolutely entitled. The will of A gives the estate of Sultanpur Khurd
to B, and the estate of Sultanpur Buzurg to C. B, in ignorance of his own
right to the estate of Sultanpur Buzurg, allows C to take possession of it, and

0 enters into possession of the estate of Sultanpur Khurd. B has not conﬁrmed
the bequest of Sultanpur Buzurg to C.

(ii) B, the elder 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



Section 188.

Section 189.

Section l90--
Postponement

of election in case
of disability.

Scope.

Section l9l .

176

ltaviitg been intorined by ./\'s executors that the residue will amount to
5.000 rupees, allows C to take possession of Sultapur. He afterwards dis-
covers that the residue does not amount to more than 500 rupees. B has
not conﬁrmed the bequest of the estate of Sultanpur to (""3

The principle underlying the section is obviously that of a choice made with
tull knowledge of the facts. The section need not be disturbed.

31.20. 'I he next section (section I88) is really a rule of evidence, but tinds

a place in the Succession Act as a matter ot convenience. it reads as under ;
"l8X (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 ex-
press dissent.

(2) Such knowledge or 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.

ll.[.USTRATlO;'\'

A bequeaths to B an estate to which C is entitled. and to (' it coal--minc. C
takes possession of the mine and exhausts it. He has thereby conﬁrmed the
besquest of the estate to B."

The section needs no change, lt may incidentally be mentioned that the
illustration illustrates the second suii--section,

3l.2l. This takes us to section l89. It provides that it' the legatee does not.
\\.'ithin one year after the death ot the testator, signiﬁfy to the testator's represen-
taives 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.

We have no change to recommend in the section.

3 1.22. The special case oi' disability is dealt with (in the context of election)
by section 190 which reads as under :--

"I90. In case of disability the election shall be postponed until the disability
ceases. or until the election is made by some competent authority."

The section hardly needs any further comment.

CHAPTER 32
GIFTS IN CONTEMPLATION OF DEATH (SECTION 19])

32.]. Gifts in contemplation of death constitute a subject analogous to the
law of succession and are governed by the detailed provisions laid down in
section 191. '

I')!

I9] (I) A man may dispose. by gift made in contemplation of death. of
any movcable property which he could dispose of by will.

32.2. Section reads as under :--

..

(2) A gift is said to be made in contemplation of death where a man. who is ill and expects to die shortly of his illness, delivers to another the possession of any moveable property to keep as a gift in case the donor shall die of that illness. ' W7 (3) Such a gift may be resumed by the gixci". and shall not take effect it he recovers from the illness during which it was made; nor if he survives the person to whom it was made.

ILLUSTRATIONS

(i) A. being ill. and in expectation of death. delivers to B. to be retained by him in case of A's death--

"a watch;

"a bond granted by C to A;

"a bank note :

"a promissory note of the Central Government endorsed in blank:

"a bill of exchange endorsed in blank: certain mortgage--deeds. "A dies of the illness during which he delivered these articles. B is entitled to--

the watch;

the debt secured by Gs 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 10 B the key of a trunk or the key of a warehouse in which goods of bulk belonging to A 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 As 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 parcel".

The illustrations may be thus explained.

Illustration (i) takes cases where there has been actual delivery in con- templation of death.

Illustration (ii) takes cases of constructive delivery.

Illustration (iii) is a case of no delivery.

32.3. Story in his Equity Jurisprudence points out that a gift of the nature Nature and 0,535,, provided in section 191 is a sort of amphibious gift between a gift during the life time and a legacy'.

The origins of the concept of donatio m0rti.r causa are to be found in the Roman Law. The concept was found to be useful, and was adopted in English law. Following observations of Lord Cooper" show the original rationale for the rule.

"Where a man lies in extremity, or being surprised with sickness and not having an opportunity of making his will, but lest he should die before he could make it, it gives by his own hands his goods to his friends about him. This, if he dies, shall operate as a legacy, but if he recovers, then does the property revert to him".

Thus, delivery takes the place of a formal will. Incidentally, at present, it is not necessary that the donor must be in extremis at the time when the gift mortis causa is made'.

'Story. Equity Jurisprudence (I919). page 256, Para 606. -

'Lord Cooper in Hedges v. Hedges, (1908) Precedents In Chancery 269'. J. Gareth Miller Vlachineryofsuccession (1977), page 275.

"Notein(1965)81L.Q.R.21.Seeparagraph32.4. ta) infra.

English law as to donations mortis-

cause.

Delivery of document .

Section 191- Applicability[toHin-

dus.

H_indu Law, as to gifts in contemp-

lation of death.

Calcutta case.

l78 32.4. Three conditions must he satisﬁed for a donation ntrl/'/ix t'tm.stt, as at present understood in English law;

(a) the gift must be made in contemplation of death (though not necessarily in expectation of death by suicide'. 3 the gift must he made upon the condition that it is to be absolute and complete only on the don0r'.s' death, and is to be revocable during his life. (Death need not. however. occur from 'the l'('K_\' cause con-

templated hy the donor).

the subject--matter of the gift must he delivered to the donee. Delivery may be before or after the words of gift'. and may even be to an agent'. Delivery of a key to a box or drawer is enough. if the property is identiﬁed";

32.5. Certain controversies have. arisen in Englattd as to how far the delivery of a document is enough to constitute a gift of the thing to which the document r_e_lates, particularly shares. However. these are not material for the present purpose. The essence of the requirement is transfer of possession (delivery by the donor to 1/10 dance by wqv of a t'Ui1diti0.ttal gift).

32.6. It may he noted that section l9l does not, at present. apply to Hindus etc'. The matter. would as regards Hindus. he governed by uncodified law. The position is, in this regand, at present, obscure. T he case law' on the subject is scanty and does not throw much light. We propose to consider the question of extending the section to Hindus and. in that context. to deal with Hindu Law on the subject.

32.7. Traditional Hindu law9. "' deals with the situation as one of gift. and accordingly requires "giving.-" (with the requisite intention) and acceptance.

A rlwiutiu mt)rti.i' ('tl1l,\'tl of movable property is recognised in Hindu' law. West and Buhler" state that "a t'ather's promises are looked on -as binding, unless the performance of them would prevent the fulﬁlment of some still more sacred duty. But that the courts will not enforce. such obligation except subject to the conditions of the statute law where that is in force."

In at Bombay case'-', A promised' lands to his daughter. but never executed a deed of transfer. On his death-bed, he asked his son to give the lands to the daughter and the son agreed. After his death, A's will was found to contain a bequest of all'his property to the son and C. It was held that the daughter could compel the son to transfer the lands to her, notwithstanding the will. since A constituted himself a trustee for the daughter in respect of them and had constituted his son his trustee to transfer the lands to D. ('. had no interest inthe lands under the will.

32.8. We may here also notice a Calcutta case". A Hindu. while on his death-bed. caused certain government papers for the sum of Rs. 30.500 to be 'Re Dudnuut, (1925) Ch. 553.

'Re wilkex V. Halington, (1834) Ch. 104.

'('ui/2 v. Morin, (1896) (2.8. 283.

'Moore \. Darton. (l851)«4 De and G. 51.

"CW. Re Lillington. (1952) 2 All E. R. l84, Journal. » 'Bariou in (I956) 19 i\1odern Law Review 394. 471. "II/Iaskar \'. S(Ir(1.slt'(1lt' Hm", (I892) l.l..R. l7 Bom. 496. "See Third Schedule.

_'See infra.

"See (a) B/tux/rur \. .S'urt1.\n'uti Bui. I. L. R. (/2) Vi.s'ulaI('I1mi \'. Sit/zhu, 6. M.H.C.R. 270.

"West & Buhler. Hindu Law. 3rd Ed. Vol._ 2. page 2l9. and 747. footnote ta). cited in Bhaskar \. .S'uraswati. Bai.. |.L.R. l7 Bomb. -186. 49.'.

"-'Bhaskm- ~.'..S'ara.tu-zttilmi. H892) l.L.R. l7 Bom. 486.

"Ktmtara Upendru \' .-Vabin Krishna Base. 3 Beng. L.R.O.€.J., H3, I22. I23. summarised in Bhaskar V. Saraxwatibai, l.L.R. 17 Bom.486.

191 for comment. see (I952) 96 Solicitors 17 Bom. 486.

I79 given to his son in his presence. saying : "Bring out the papers and give them to my son", but he did not make or direct any endorsement thereon. Subsequently, on being asked to endorse them. he said. "I am very weak, how can I Sign so many papers: When I get a little strength I will sign them, what cause have you for being . . . . . Phear J. decided that it was a good do/ratio mortis causa, which had not the same signiﬁcation in India as in England. The decree was aliirmed on appeal. Sir Barnes -Peacock, C. J. holding that the gift was not governed by the strict principles of English law, but by the Hindu law. By English law, there was a valid donatio mortis causa, but assuming it to be a gift iritevivos. it was a valid gift by Hindu law. Sir Barnes Peacock observed : "If the gift were to be governed by the English law, and treated as a voluntary gift without condition. and not as a donattiu m0rtz'.s' t't.'u.s'a, I think the relation of trustee and (.'t's!ui que trust was created between the donor and the donee".

He also observed that the donor. if he had lived, or his representatives after his death, could not. at la\v. have compelled the clones to have returned the govern- ment papers.

32:9. On a consideration of the position, it appears to us_that there are Rwnmmmdauon two weighty reasons, one theoretical. the other practical_ why section 19] should to extend section be extended to Hindus etc.-- - I91 to Hindu cic-

tll on principle. there seems to he no reason why the section should not apply to them: -

(2) if the section is so extended. citizens would be able to locate and ascertain the law easily from codiﬁed provisions.

We. therefore, recommend that section 191 should be extended to Hindus l etc. This will. of course. require amendment of the Third Schedule'., ' CHAPTER 33 PROTECTION OF PROPERTY OF DECEASED (SECTIONS l92 T0 210) 33.1. Protection of the property of the 'deceased forms the subject matter of sections 192 to 210. which create a machinery for such protection. Under section 192. proceedings for the purpose can be initiated by a person claiming a rightful succession. either after actual possession has been taken by another person or when forcible means of seizing possession are apprehended, An application for the purpose has to be made to the District Judge who, after inquiry under sections 193-194. has power, under section 194, to determine summarily the right to possession and shall deliver possession accordingly. The order of the District Judge is subject to the right of rhc aggrieved party to bring a suit under section 208. Pending determination of the summary proceedings. the District Judge has power to appoint a curator of the property. The rest of the chapter deals mainly with matter connected with the Curator.

Scope.

33.2. The basic section in the entire scheme is section 192. which reads----- _ Section 192-

"l92. (1) ll any person dies leaving property. movable or immovable, any ﬁgﬁfgv su';';'s"'s'i':,',"

person claiming a right by succession thereto, or to any portion thereof, to prépeny of dg. may make application to the District Judge of the district where any part of ceased may apply the property is found or situate for relief, either after actual possession has f°' '°l'ff ""'."'5' been taken by another person. or when forcible means of seizing possession wmngfu p°Ss°Ss'°"' are apprehended.

(2) Any agent. relative or near friend, or the Court ot' Wards in cases within their cognizance. may in the event of any minor, or any disqualiﬁed or absent person being entitled by succession to such property as aforesaid. make the like application for relief."

'To be carried out under the Schedule.

180

Rccomrncndatiori 33.3. The term 'succession' in section 192 is not conﬁned to intestate '$2 3"'°'"' '''°''''" succession, but applies also to testamentary sticcessionl'. The provisions of section ' 192 are not, however, applicable to a case where the property passes by survivor-

ship--as in the case of a joint Hindu family".

It would be useful to codify judicial interpretation of the word 'succession' in section 192. by adding the words "testamentary or inte.s'mr<"' after the word "succession". wherever it occurs in the section. We recommend accordingly.

Scc[i0n193,]nqu|'ry 33.4. Section 193 reads----

made byiudgo . . . . . . .

"J93. Fhe District Judge to whom such application is made shall. in the first place. examine the applicant on oath, and may make such further inquiry, if any, as he thinks necessary as to whether there is suﬂicient ground for believing that the party in possession or taking forcible means for seizing possession has no lawful title, and that the applicant, or the person on whose behalf he applies, is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a suit. and that the application is made honu ﬁde."

Segﬁon |'i94_ 33.5. Section 194 reads--

"I94. H the District Judge is satisﬁed that there is sutlicient ground for believing as aforesaid but not otherwise, he shall summon the party complained of, and give notice of vacant or disturbed possession by publication, and, alter the expiration of a reasonable time, shall determine summarily the right to possession (subject to a suit as hereinafter provided) and shall deliver possession accordingly.

"Provided that the Judge shall have the power to appoint an oﬂicer who shall take an inventory of effects, and seal or otherwise secure the same, upon being applied to for the purpose. without delay_ whether he shall have concluded the inquiry necessary for summoning the party complained f of or not."

The section needs no change.

Sccmm 195' 33.6. Section 195 reads~--

"l95. lf it further appears upon such inquiry as aforesaid that danger is to be apprehended of the misappropriation or waste of the property before the summary proceeding can'be determined, and that the delay in obtaining security 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 L proceeding and the conﬁrmation or delivery of possession in consequence thereof;

Provided that. in the case of land the Judge may delegate to the Collector. or to any oﬁicer subordinate to the collector. the powers of .1 curator :

Provided, further. that every appointment of a curator in respect of any property shall be duly published".

The section needs no change.

i .

i section ' 196 33.7. Section 196 r€ads--~ : §§:;::f:r"f"ab'° "I96. The District Judge may authorise the curator to take possession of

- -' ' the property either generally, or until security is given by the party in possession, or until inventories of the property have been made, or for any other purpose necessary for securing the property from misappropriation or waste by the party in possession : .

'Binode Bhari V. RaiS1mdari. A.l.R. l926 Cal. 779. '--'('hampi Devi v_. Purqn Bal A.l.R. l934 Lahore 930. ¢Bua Ditta v Sahib Dival, A.I.R 1938 Lahore 753.

l8l Provided that it shall be in the discretion of the .ludgc to allow the party in possession to continue in such possession on giving security or not: and any continuance in possession shall be subject to such orders as the Judge may issue touching inventories. or the \:curing of deeds. or other effects."

The section needs no change I97 reads-

"I97. (1) 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.

(2) All persons who have paid debts or rents to a curator authorised by a Court to receive them shall be indemniﬁed. and the curator shall be res-

ponsible for the payment thereof to the person who has obtained the certi- ﬁcate, probate or letters of administration. as the case may be,"

33.8, Section The section needs no change.

33.9. Section l98 reads--

"198. (I) The District Judge shall take from the curator security for the laitliful discharge of his trust. and for rendering satist'actor_y accounts of the same as hereinafter provided, and may authorise hint to receive out of the property such remuneration. in no case exceeding five per centum on the moveable property and on the annual proﬁts of the immoveable property. as the District Judge thinks reasonable.

(2) All surplus money realized by the curator shall be paid into Court.

and invested in public securities for the beneﬁt of the persons entitled thereto upon adjudication of the summary proceeding.

(3) Security shall be required from the curator with all reasonable despatch. and, where it is practicable, shall be taken generally to answer all cases for which the person may be afterwards appointed curator; but no delay in the taking of security shall prevent the Judge from immediately investing the curator with the powers of his ofﬁce."

The section needs no change.

33.10. Section I99 reads as under :----

''l9'). (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 appointment, the District Judge shall demand a report from the Collector. and the Collector shall thereupon furnish the same 2 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.

The Section needs no change.

33.1 I. This takes us to section 200, which in the main paragraph provides that the curator shall be subject to all orders of the District Judge rgarding the institution or the defence of suits. and all suits may be instituted or defended in the name of the curator on behalf of the estate. ' Under the proviso. an express authority shall be requisite in the order of the curator's appointment for the collection of debts or rents: but such Section 197. Pro-

hibition of exercise of certain powers by curators.

Payment of debts etc. to Curator.

Curator to give sece-

unty and may receive remuneration.

Section I99. Rcpor from Collector where stateinclude revenue paying law.

Section 200. Suits bycurators.

182

express authority shall enable the curator to give ll lull acquittunce for any sums of money received by virtue thereof.

Rccommcndationto 33.12. The section is deiivcd from an Act of 1841*. The principle underlying clarify 1116 pqsition the section is simple. A curator is an officer of the court, and suits instituted :l5m::'ma""'°"'-V °f by him are subject to control of the court. The question, however, is whether. ' before a suit is instituted by the curator, he must obtain the leave of the court. The section provides that a suit should be instituted or defended in the name of the t'l(Iul()r. But, according to judicial interpretation, it is not necessary' that the curator must be speciﬁcally authorised by the District Judge to institute or defend the suit. The position. in this regard, should be codiﬁed by adopting the judicial interpretation.

The proviso to section 200 requires that if a curator is appointed to collect debts or rents of property. the order appointing him as curator must confer express authority to give discharge for the moneys received. The proviso does not relate to the institution or defence of suits. but to the collection of debts and rents.

Recommendation 33.13. Another inat_ter_on _which the law could be suitably codiﬁed relates to clarify me push to the need for _a succession certiﬁcate when the curator takes proceedings. it has tion as to succes- been held3 that it 15 not necessary for the curator to obtain a succession certiﬁcate 9i0n certiﬁcate before instituting a suit to recover the debt. This pOSitiOn also should be made clear by an amendment of section 200. An Explanation could be added for the purpose.

_ 33.14. in the light of what we have stated above we recommend that ,S,,u§,g.ff:i-°5d¢:,r;'2,',',":a_i(')((1)_ the following Explanations should be added below section,200 :-

"Explanation 1': It is I10] necessary that the curator must be speciﬁcally authorised by the I)i.vtrirt Judge to institute or defend the suit.

lixplanation 2 ; It is not nece.ssz.r_v for the curator to obtain a succession certiﬁcate before imtittltirig a wit to rec0t'er the debt."

gcmon 20._ 33.15. Section 201 provides as follows:

"201. Pending the custody of the property by the curator. the District Judge may make such allowances to parties. having a prima facic right thereto as upon a summary investigation of the rights and circumstances of the parties interested he considers necessary, and may, at his discretion, take security for the repayment thereof with interest, in the event of the party being found, upon the adjudication of the summary proceeding not to be entitled thereto."

The section needs no change.

. ,02 3.16. Section 202 provides that the curator shall ﬁle monthly accounts in S°°"°" ' the abstract, and shall, on the expiry of each period of three months, if his administration lasts so long. and, upon giving up the possession of the property; .

tile a detailed account of his administration to the satisfaction of the District Judge.

The section needs no change.

9 . ,0, 33.17. Section 203 provides that the accounts of the curator shall be open 'ecmm ' " to the inspection of all parties interested; and it shall be competent for any such interested party to appoint a separate person _to keep a duplicate account of all receipts and payments by the curator. If it is found that the accounts of the curator are in arrear. or that they are erroneous or incomplete. or if the curator_ does not produce them whenever he is ordered to do so by the District Judge, he shall be punishable with ﬁne not exceeding one thousand rupees for every such default.

Thcsection needs no change.

'Section 9. Succession (Property Protection) Act. 1841 (19 of 1841).

"Lakshmi Chandv. Ram Lal, A.l.R. 1931 All. 423.

'(a) Babasab V. Narasappa, l.L.R. 20 Born. 437.

(b) Benode Beharyv. Rat' Sundari , 30 C.W.N. 500.

33.18. Section 204 provides 1--

"204. if the Jud the whole of th Section 204.----

Bar to appointment ge of any district has appointed a curator, in respect of of second curator e property _of a deceased person, such appointment shall f0' Same property.

preclude the Judge of any other district within the same State from appointing any other curator, but the appointment of a curator in respect of a portion of the property the same State thereof :

of the deceased shall not preclude the appointment within of another curator in respect of the residue or any portion Provided that no Judge shall appoint a curator or entertain a summary proceeding ill respect of property which is the subject of a summary pro- ceeding previously instituted under this Part before another Judge:

"Provided, further. that if two or more curator are appointed by different .ludges_for several parts of an estate, the High Court may make such order as it thinks ﬁt for the appointment of one curator of the whole property."

The section needs no change.

33.19. Section 205 provides that an application under this Part to the Section

205. District Judge must be made within six months of the death of thc proprietor whose property is claimed by right in succession. _ The section needs no change.

33 .20. Section 2 "206. Nothing in this Part shall be deemed to authorise the contravention of any public act 0 Bar to enforcement-

of Part against pub-

lic settlement or t' settlement or of any legal directions given by a deceased legal diraions by ()6 provides 2 proprietor of any property for the possession of his property after his d°°°3'°d-

deceasc in the e vent of minority or otherwise, and, in every such case, as soon as the Judge having jurisdiction over the property of a deceased person is sa.tisﬁed of the existence of such directions. he shall give effect thereto."

The section needs no change.

33.21. Section 2 07 provides :---- Section "207. Nothing in this Part shall be deemed to authorise any disturbance of the possession of a Court of Wards of any property; and in case a minor or other disqualiﬁed person, whose property is subject to the Court of Wards, is the party on whose behalf application is made under this Part, the District Judge, it' he determines to summon the party in possession and to appoint a curator, shall invest the Court of Wards with the curator- ship of the estate pending the proceeding without taking security as aforesaid :

and if the minor or other disqualiﬁed person, upon the adjudication of the summaryproceeding, appears to be entitled to the property possession shall be delivcre d to the_Court of Wards."

The section needs no change.

33.22. Section 208 provides----

Section 208.

"I208. Nothing contained in this Part shall be any impediment to the bringing of a suit either by the part_v whose application may have been rejected before or after the summoning of the party lll possession, or by the party who may have been evicted from the possession under this part.

The section needs no change.

33.23. Section 209 provides------

Section 209.

"209, The decision of a District Judge in a summary proceeding under this Part shall have no other effect than that of settling the actual possession:

but for this purpose it shall he ﬁnal. and shall not be subject to any appeal or review."

The section nee tls no change.

I 184 33.24. Section 210 provides that the State Governnietit may appoint public curators for any district or number of districts; and the District Judge having jurisdiction shall nominate such public curators in all cases where the choice of a curator is left discretionary with him under this Part.

Section 210.

Public Curators. --

The section needs no change, CHAPTER 34 REPRESENTATIVE TITLE TO THE PROPERTY OF THE DECEASED ON SUCCESSION. SECTIONS 211 T0 216

1. Introductory 34.1. Representatix-we title to the property of the deceased on succession is an important topic of the law of succession, dealt with in sections 211 to

216. The Cliapter begins with a positive provision in section Zll. which enacts that the executor or administrator of a deceased person is his legal representative for all purposes. and all property of the deceased vests in him as such. In case of an admiiiistrator_ the very deﬁnition of that expression' requires that he must be appointed by a competent authority. As regards an executor, section 213i 1 ) provides, inter utlia, that (in cases where that section applies) no right as 3 executor can be established in a court without obtaining probate or letters of administration with the will annexed. Thus, in soine form or other. the court enters into the picture in most cases.

3-1.2. The position in India under the Act otlers a contrast to the continental system. In most countries of Europe. where in modern times. the inﬂuence of Roman law has been predominant. property passes on immediately to the bene- ﬁciaries. who by their acceptance of the beneﬁt become directly liable for the payment .of the deceaseds debts, In England, however, this is not the case'.

"With us. the property -must first vest in personal representatives whose duty it is to administer the estate by paying debts and distributing the residue amongst the persons beneﬁcially entitled. Moreover, their authority to administer must be ratiﬁed or created by what is in fact and in law an order of court. and this order of court (either probate or letters of administration) becomes an essential link in the title of the beneficiaries."

Origin of cxecum, 34.3. The conception of_ the personal i'cpi'ese11tative is founded up.on the and administrator, position of the executor appointed by the testator's will to execute its terms, an institution prevalent throughout Europe in the Middle Ages and perhaps traceable to the ancient German Salman to whom property was transferred in order that he might carry out the wishes of the transferer. Where no executor was appointed. the medieval Church claimed the right to administer_ though in practice the Bishop appointed some member of the deceased's family t by granting to him letters of administration) to act as administrator in his place. This practice was (in England) made conipulsory by statute as early as 1357, and thereafter the position and functions of the administrator have been practically assimilated to those of the executor.' Scheme of mmm 34.4, The scheme of these sections. is that where those sections apply, ' ' it becomes necessary to obtain the appropriate document conferring or recognising Scope of the Chap-

ter.

Eitecutors and ad« ministrators.

212-214. _ _ _ _ the t'eprescnt1ltl\'C llliC_ before a right can be established to the property of the deceased.

ll. Survivorship and the question of shares Section 211(1) 34.5, We may now take up the sections for detailed consideration, Section 211(1), provides that the executor or administrator of a deceased is his legal 1Section 20:)': ''Administrator''.

"Stephen, Commentaries on the Law of England (I950) Vol, I. page 520. Vstephcn, ('ommentaries on the Law of England (1950), Vol. ], page 520.

«w 16:

representative for all purposes. and all the property of the deceased person vests in him as such. But, as regards Hindus, Mohammadans. Buddhists, Sikhs. Jains, Parsees and other persons, sub--section (2) provides that nothing in the section shall vest in the executor or administrator my property of the deceased person which would otherwise have passed by survivorship to some other person.

34.6. This naturally raises the question whether letters of administration Survivorship in res-

can be obtained in respect of property passing by .\'m'viv0rs/'1i,r2 to copareeners D¢°l°f5h3Y°5- in a Hindu undivided family. Much of the case law on the subject relates to shares in companies'. ln general. property passing by survivorship is distinguished from property passing by succession. The distinction. in fact. is elementary and sound. But this theoretical distinction creates certain practical dilticulties, because of the fact that under the statutory provisions applicable" to shares in companies.

shares are registered only in the name of a particular person. and only the person registered is recognised as the "legal owner" of those shares so far as the company is concerned. This does not. of C0u1'Sc. mean that the rights of the other persons against, the 'legal' owner are alfected as between the 'legal' owner and those other persons, But. as between the C0lI]ptlIl\' and the share».-

holders, this is the position. 1 34.7. Now. these statutory provisions create sortie problems in regard to Shares standing in shares belonging to the coparceners of a Hindu undivided family and standing the name 07 the in the name of one cloparcener--the manager. When the registered "legal" manage"

owner-----i.e. the manager--dies. how is the title of the surviving coparceners to be established on his death 2' 34.8. Where. as a matter of general law, the right to shares passes by Applicability of sec survivorship, the provisions of sections 211 to 213 would not, if construed tions 2"-313 10 literally, be applicable to the situation. But if such a rigid view of the law is 5h""9"

taken, then there remains no machinery for establishing, to the satisfaction of the company, the title of the persons succeeding by survivorship. By and large, courts have, taking a realistic view. construed sections 211 to 213 widely for the purpose. There is, no doubt. some conflict of views on the question as to the basis on which court fees are to be calculated" in respect of petitions for latters of administration ﬁled by the surviving coparceners. That c0nﬁict_ however as it pertains to the Court Fees Act. is not material for our purpose.

34.9 Our primary concern is with the question whether letters of adminis- Leuersor .,dm,'m5. tration can be granted in respect of shares in joint stock companies where the tration regarding shares stand in the name of the karta of a Mitakshara Joint Hindu family. On Shares- that question. most High Courts take the view* that in the case of such shares the Companies Act. (and usually, the Articles of Association of the Company). make it abundantly clear that vis-a-vis the company. the local title in the shares is in the registered holder of the shares_ viz. the karta of the joint family in whose name the shares stand. He is the only person recognised by the company as having the shares. The position. therefore. is that on the death of the karta who was the registered holder of the shares. the title to the shares vis--a--vis the company, does not, on death of the karta. without the grant of letters of administration, pass by .s'ur\'/'varsliip to the surviving members ol the coparcenary of which the deceased was the karta. So far as the company 13 mm'erned, the excepﬁgng in cugcg of Hindu dying intestate. provided in Section 2| 1(2) and 212(2) of the Indian Succession Act. l925. do not. therefore. apply in such cases. At the same time, neither the principles of Hindu law nor the provisions contained in the Succession Act. stand in the uay of the grant of the Letters of Administration limited to the shares held by the karta of a joint l\4ital<shara Hindu family. in the event of his dying intestate.

'Paras 34.8 and 34. 9. infra.

'Thc Companies Act. 1956.

'Section l9D. ('ourt Fees Act.

'The case law is reviewed in.

(:1) Sri Ram \'. collector, La/tore, A.LR. l942 Lahore 173:

(h) In re ,' the.gruurI.r of Sen' Pruurad Saraf, A.l.R. l954 Calcutta 444, 445, 446.

l ~ Section 1 oh 34.1().The conclusion on the question, as expressed in a Calcutta case', represents. in broad terms, the view of the most High Courts, namely. that where shares in a joint stock company belonging to an undivided family governed by the Mitaksliara school of Hindu law stand in the name of the knrta of the family, letters of administration limited to the shares can be gmtltctl to legal representatives in the event of thc karta dying intestate. and. in particular. to the next karta oi' the l'-.imil_\'.

View of most High Courts.

1'§€=gAiig:*:d;nc:E;; V 34.11. lt is desirable that this iiiterpretatioii, which takes a practical view §ﬁ"1,ega1,di["'gSham of the matter. should be incorporated in the section by adding ll speciﬁc planation'.

Zita 34.12. in connection with section 2ll. the next iniportuiit point is con- Disposal by Vii}: ofcerned with the Explanation to section 30 of the Hindu Succession Act 1956. §,';'L']'§';5;sS';;"°Su"__T:o state the gist of that lixplanation broadly, it confers. for the first time", '.1 ;\,o,5h;p_ right to dispose of (by will) property in the nature of the interest of a male Hindu in a Mitaksliarti ('oparccnary property or the iiitcrcst of the speciﬁed persons in the speciﬁed property.

34.13. Section (i of the same Act also provides that such interest shall. in certain cases, pass by succession, and not by survivorship'. The scope of sub-section (2) of section 211 of the Succession Act has thus become limited. Customary law prohibiting the disposition by will of certain property, of course. still continues in force. section 30 of the Hindu Succession Act having no application in such a case. The Punjab case of lat Hindu belonging to an agricultural tribe and governed by Punjab Customary Law may be cited" in this context. as an illustration of tbepjudicial view as to customaiy law, This position does noi_ of course. necessitate any amendment in the section in the Succession Act, 34.14. It was decided in a Madras case" that the expression "legal representa- tives" and "successors" may not be applicable to persons taking by survivorship. but it does not necessarily follow that such persons are not entitled to obtain :2 succession certiﬁcate by calling themselves" legal representatives.*--° Section. 6, Hindu Succession Act.

Survivorship.

We are of the view that not only is there need for a speciﬁc provision"

to cover shares in the context of letters of administration, but there is also need to cover" all cases of survivorship in the context of siicc-essimi certiﬁcate.

Recommendation 34.15. In the light of what we have stated above". we recommend that the as '0 5°°"°" 3". following Explanation should be added to section 211.

"l5xpl'ui1ati'oii.~--W/(ere .s'/lures in a faint stuck L'UI)I[)a')J'\' belonging to on lUldil'id€({ fuiin'l'_i' g()l'€'I'rlL'([ by the Mftakshani ycliool of I-[India law stand in the mmze of the kurtu of the fainily, letters of aa'mim'strati'0.»i ﬁmiteil to the shares' may, in the euent of the karta dyiiig iiitestare, be granted to the legal representatives of the karia ('i'ncIudi'ng, in appropriate case, the next karm of the faniiI_\'i".

This amendment will cover letters of administration. The iiinendinent as to Succession Certiﬁcate will be dealt with later".

'In: /wguadr ofseu» pmi-arl Suraf, A.|.R. I954 Cal. 444. 445. 446. para 24 {G.N. Das and S.R. Das and SR. Das Gupta J1).

'Sec para 34. 75. in/ru.

"Section 30(1). Explanation. Hindu Succession Act. i956.

'Section 6. Hindu Succession Act. 1956.

"'Kaur Si'i1,i;rh \. .Izi22m' Singh, A.l.R. l96l Punjab 489.

'.Iogin¢1m'Siin;li V. Kc/iur Simah, A.l.R. 1965 Punj.407{Full Benclit.

71\"ri'shnummul \'. [.(I.\'!!ll _lnmiaI, Li .R. (1950) Mad. 718. 726, 727. 728, 735.

'Compare Ba/iiruri Lu! \'. Jilaksurluii Lat'. H929) l.l..R. 52 All. 152 : ALR. 1930 All.99 'See para 48 . 8 (section 3707. irifru.

"See para 34. l5 . infra.

"See para 49. 3 (section 370). infra.

""'"Para 34. H. siipm.

"Para 48 . 8. infru.

- ---..n-uarvc 1-, 187 Ill. Establishment of right to property of deceased 34.16. Section 212(1) provides that no right to any part of the property section 212 of :1 person who dies intestate can be established in any court of justice unless letters of administration have first been granted by a court of competent jurisdiction. Sub-section (2) provides that this section shall not apply in the case ofintestacy of a Hindu. Mohammadan, Buddhist, Sikh, Jain, Indian Christian or Parsee.

The section needs no change.

34.17. Section 213 provides that before title (as an executor) can besection 2l3-- established, probate of the will must be obtained. There seems to be some E.5'ab'.i5hm°"' ,°f uncertainty as to whether, in cases where probate is not obtained, (though-'me' °x°°'"°r' required by the section), the provisions of the section merely bar the passing of a decree on the basis of a right claimed under the will, or whether they bar the very institution of the suit to enforce that right.

The Madras and Patna High Courts take the former view', namely, only the passing of the decree is prohibited. The Andhra and Calcutta.High Courts' take the latter view, namely, the very institution of the suit is barred.

It should be noted that in the case of an executor, the title depends on the will, and not on the probate. Probate is needed only to prove title".

34.18. Whatever be the correct construction of the present wording of Recommendation section 213, it seems to us that on practical considerations it is desirable to to amend Section adopt the former view', which would bar only the passing of a decree. It reﬂects 2"-

a less technical approach than the cont-rary view. We therefore recommend that section 213 should be amended by providing that where probate has not been obtained, what is barred is only the passing of a decree'. and not the institution of a suit.

34.18A, It has been represented to us, in one of the comments received section 213- ex- on the Working Paper", that while Hindus and Muslims can get relief from the cluster; of Indian court on the basis of a will, Christians have to get a probate or letters of adminisé Chglsllans '°°°mm'

-tration for getting relief on the basis of a will. It has been suggested in that °" a"°"s' communication that Christians should be excluded from section 213. This is a suggestion forwarded to us along with the letter of the Catholic Bishop's Con- ference of India. We accept the suggestion, though the point was not contained 1 in our Working Papers. We recommend that (a) section 213 should be amended as above; and (b) consequential changes be made, wherever necessary, in other sections of the Act.

IV. Debts---need for succession certiﬁcate 34.19. This takes us to section 214, with reference [0 which a number section 2]4_ph1-age of points require consideration. The ﬁrst question is concerned with the signi- 'onsucoession'. ﬁcance of the phrase 'on succession'.

Sub-section (1), clause (a) of the section prohibits the courts from passing a decree against a debtor of a deceased person for payment of his debt to a person claiming, 'on succession', to be entitled to the effects of the deceased person or to any part thereof, except on the production, by the person so claiming, of the requisite document covering the speciﬁed amount. The phrase did not occur in the earlier Act of 1865, but was added by the Joint Committee that considered the Bill which led to the present Act.

The signiﬁcance of these words will be soon realised when we consider the cases where a claim is made against the 'debtor of a deceased person' on the '(a) In re Ramchand A.I.R. 1956 Mad. 274, 276.

\b) Bhude v. Chandra X. Bhlshakar, A.I.R. 1942 Pat. 120. '-'(a) Venkata Subrmnaniam v. Andhra Bank, A.I.R. 1960 A.P. 273. 280.

(b) Biblizm' Bhusan V. Narendra, A.I.R. 195], Cal. 228.

-"Meyappav. Subramanian, A.l.R. l9l6P.C.202. 204. 'Para 34. 17, Supra.

-"Compare section 2l4(1)(a).

"Letter of the Catholic Bishops' Conference of India, dated 3rd October, 1984.

85 -L/B(D)l 4-4MoiLJ 8aCA--13 Claim on Insurance policy.

Section 6. Married Women's Property Act.

Practical problem created by section

214. Hardship caused to widows and child-

ren Absence of nomina-

tion.

Heir of owner or tenants.

M8 basis not of .S'll('('£'.§'Si(HI, but on some other bt;sis. The other basis could be surv1vorship--for example, lll the_case of Hindu coparceiiary property or in the case of debts due to :1 partnership firm.

V 34.20. More frequently. the claim could he tor money due on an insurance policy, the rights wherein have been traiislt-i'red' to the claimant, or in respect of which a nomination has been made. A claim for money so due is, in its essence, based not on succession on death, but on a demand which merely matcriaiises on death. it can be stated that a person claiming insurance money under a policy assigned to him does not ('la/'nt as a .s'I(r(.'€s's0r, but in his or her own right.

there seems to be it coiillict of 'decisions on the question whether amount due under an insurance. policy is a 'debt, The need for A! precise deﬁnition of the word 'debt' is obvious.

When the Succession Bill was discussed, the matter seems to have been raised. Sir Hari Singh Gour, in his speech of the 18th March, 1925 in the Legislative Assambly on the Bill, made a pointed reference to the nebulous state of judicial interpretation of 'debt' in the different High Courts, and pleaded for a statutory provision which could preclude the possibility of at lui-tlier conﬂict of authorities". Apparently, his suggestion was not accepted, But the point is really of considerable practical importance. It appears to be desirable to provide that a succession certiﬁcate can be issued in respect of an amount due under an insurance policy.

34.21. in particular, with reference to section 6(1) oi' the Married Women's Property Act, 1874, it may be of interest to note that a succession certiﬁcate is not required when a trust is created under that section". The section constitutes a speciﬁc statutory provision which creates a trust. On such a trust coming into being, the policy of insurance ceases to form part of the estate of the deceased. The concluding words of section (>( I) of the above mentioned Act, in fact, so provide. Although the point does not necessitate any amendment of section 2l4 of the Succession Act, it is worth noting in the context of the subject under discussion.

34.22. The most important problem created by section 214(1) is a practical one. The section has been resorted to by banks and other persons for refusing payment of a debt or a claim owed to a deceased person where a succession certificate is not produced. It was never intended that the section should, in this manner, come in the way of the heirs of the deceased person, The object of the section is merely to niake it clear that no debt due to a deceased person can be recovered through court except by a holder of a document of the cate- gory'. However, practical experience shows that a provision which was intended to have application mainly in relation to litigation has had the unintended effect of causing hardship to the heirs of deceased persons.

34.23. Presumably, it was not the intention to lay down 21 rule of law that 3 bank or other debtor can ever make a payment to the person who claims to be the heir unless he produces the succession certiﬁcate or other document speciﬁed in the section. Common experience, however, shows that banks and other institutions do take such a stand, causing immense hardship to the heirs. pzirticularly to poor widows and children of deceased persons 34.24. Where the debt or claim is of such a nature that there is a statutory provision for nomination and that provision has been actually utilised by the deceased persons. then, in practice, the banks and other institutions make pay- mom to the nominee. Btit in the absence of such a statutory nomination, great hardship is caused to the heirs.

34.25. The position is anomalous in another respect also, inasmuch as the law imposes no such restriction in the case of title to immovable property.

'Section 38. InsuranccAct. I938.

"l".V.Subramania, 'ls lnsuranccadebt". A.l.R. 1927 Journal 14. "PaIne.s'lm'uri' Bai V. Ni/ml Cham/. A.l.R. 1938 Sind. 20.

'See also in Re Aslm Lam Desai, A.l.R. 1940 Cal. 21 7.

'KI'ssen Lal V. Ti/ak Chandra, A.l.R. 1940 Cal. 24.

189

A person claiming to be the heir of a deceased owner of 'nntnovable property can continue as owner of the immovable property of the deceased, without pro- ducing a succession certiﬁcate. but he cannot withdraw moneys but by the deceased in a bank account------and this is so even where there is no doubt that he is the heir. Same is the position regarding tenant. Of course, a tenant has also to bear the liability to pay rent. but the fact remains that he gets a valuable advantage without being required to produce a document establishing his right to succeed. It is understandable that a bank may like to have some evidence of death and of the claimant's right before it makes payment, but there could be other evidence-----i.e. evidence other than a succession certiﬁcate.

it seems, therefore, desirable to recommend some reform that would solve the above problem. While it cannot be provided that the claim must in every case be paid without a succession certiﬁcate, it would be reasonable at least to provide that a payment without such certiﬁcate is not illegal.

34.25A. We note that by a recent amendment' made in the Banking Rt5gll~ Rccemgmcndmemg lation Act, 1949, it is now possible to make a nomination in respect of deposits made in banking in banks. Where such nominations are made, the hardship otherwise experienced law.' 35 *0 "°mi' by the relatives of a deceased depositor would be alleviated to some extent, "anon"

since the bank would be protected and would get a full discharge on making payment to the nominee. But, in cases where no such nomination has been made, the diflicultics felt by virtue of«the practice of banks to which reference has been already made" will survive. An amendment of the Succession Act would, there- fore, possess considerable utility. even after the amendment of the banking laws.

Incidentally, it may be mentioned that a nomination does not affect the Em," of nomim. rights of the other heirs, and, as between the nominee and the rival heirs, the tion. nominee does not get any higher or preferential status. The new sections inserted in banking laws provide so expressly.

34.25B. We may also note that in a Kerala case reported recently", the Section 214 and widow of a person who had been killed in an accident caused by the driver of small claims,' a truck, claimed compensation against the Kerala State Road Transport Corpo-

ration, which owned the truck. Presumably the claim was under the Fatal Accidents Act read with the Motor Vehicles Act. Resisting the claim, the State Road Transport Corporation insisted that the widow should produce a succession certiﬁcate before payment could be made to her. The widow thereupon moved the High Court of Kerala by a letter, which was treated as a petition. The High Court pointed out that no succession certiﬁcate was required in this case, as the widow was claiming in her own right, and not as an heir, As regards the cases where the widow (or other relative.) claims as an heir, the High Court made the following observations, which are relevant to the provisions of the Succession Act :-----

"It is for the legislature to deal with the matter by enabling payments to be made, at least in respect of small sums of money wit/rout a succession certiﬁcate being required to give immunity to the debtor. We are not going into that question in this case, for, even, otherwise, we think we will be able to give relief to the petitioner herein."

34.26. For these reasons, in our opinion, the appropriate course would Recommendaﬁon be to add to section 214, an Explanation lll suitable terms so as to ensure :9 add an Explana- that the section will not--as is the practice at present--be utilised as a shelter "On to Section 214 in everv case for deceased '$5 b*° PaY"'°"' °f'

- ' e t.

We recommend that the section should be amended accordingly'.

'The Banking Laws Amendment Act. i983.

"Paragraph 34. 22. sppra.

(J 3Kocbupenm( I.nksh/m' V. ('lmirmam K.S.R. T. cor/mrarinn, AJR. 1984 Ker. 97. 99, para 4 une).

'See para 34 . 45, I'nﬁ'a, for a suggested re-draft ofthe section.

190

VI. Scope of the expression "Debt".

Meaning of "debt" 34.2'/"._There seems to be a conﬂict of decisions on the exact scope of l3_0$ba.V and Patna_tlie expression "debt" in sections 214, 370, 372(l)(t) and 381. The conflict "' * 1S apparent from a Bombay Judgment', which has discussed the matter at length.

dissenting from an Allahabad case*, and agreeing with a Patna case".

1n the Patna' case. the appellant applied. under section 370, for a succession certificate in respect of certain ornaments pledged with the Punjab National Bank at Darbhanga. The High Court dismissed the application, holding that the expression "debts and securities" (in sections 370 and 381 )5 did not cover pledged ornaments, Allahabad view. 34.28. In the Allahabad case', one lady had died in the Kumbha Mela tragedy and the district authorities had taken possession of certain cash and ornaments from the body of the deceased. When the petitioners, as her heirs, asked for the return of valuables, the authorities insisted on the production of a succession certiﬁcate. Consequently, the petitioners approached the court for the purpose. The -question arose whether "do.-ht" would cover pledged movables. The High Court held that the term "debt" meant a liability owing from one person to another whether in cash or kind, secured or unsecured, whether ascertained or ascertainable, arising out ot' any obligation, express or implied. The refund of ornaments recovered from the dead body became an obligation of the authorities who were bound to hand over the same to the person entitled. Accordingly, a succession certiﬁcate was granted.

Bombay case. 34.29. The Bombay case' discusses the problem of interpretation of the term 'debt' at great length. In that case, one lady had died in 1963, leaving behind her husband and three sons. Her husband died in 1966, leaving behind his three sons. The lady had taken a demand loan of Rs. 3.000 from the State Bank of India on the security of certain ornaments. The sons paid off the loan amount with interest to the Bank, and claimed return of the goldpledged. The Bank informed them that it could not reurn the jewellery in the absence of a succession certiﬁcate. The sons made an application for a succession certi- ﬁcate. The High Court, construing the term 'debt' narrowly, held that a.certi- ﬁcate could not be granted in respect of the ornaments pledged with the Bank. Thereupon, the petitioner sought leave of the court to withdraw the application. which was allowed.

Recommendation 34,30, In this position. it is desirable to settle the law on the subject.

'° 5°"'° the ''''w' Although, in general, "debt" could be taken as conﬁned to a monetary obligation for a liquidated amount, practical considerations require that the expression "debt" should, for the purposes of sections 214, 370(1) and 381, be deﬁned as including any actionable claim.

We recommend that the law should be amended on the above lines.

Of course, the ellect of the proposed amendment would he to extend the restrictive as well as the beneﬁcial provisions of the Act to actionable claims. But that would he the only logical course.

Gist of the re1e- 34.3]. It may be mentioned for ready reference that section 370(1) pro- va_ntsectf0nsSumm'v'ides that a succession certiﬁcate shall not be granted with respect to any "'9'-'d' "debt" or security to which a right is required by section 212 or section 213 to be established by letters of administration or probate. Section 372(l)(f) provides, inter alia, that an application for succession certiﬁcate shall set forth the "debts" and securities in respect to which the certiﬁcate is applied for. Section 381 provides that the succession certiﬁcate shall, with respect to the "debts" and 'Ranchoddas v. Gavind Das, (1976) 78 Born. L.R. 219 (Madon .1.) "Dimznal/1 V. Balkris/ma, A.l.R. 1963 All. 46 (Mithan La1,J.).

,-S/zyam Sumltzri Devi \'. Sar/a Devi, A.l. R. 1962 Patna 220.

'Shyam Slmdhri Dew" \'. Sarla Devi, A.l.R. 1962 Pat. 220 (Untwaha. .l.t. 'a. For gist ofthe sections see para 34. 31. infra.

'Dina .\"ar/t v. Balkris/ma, A.I.R. 1963 All. 46 (Mithan Lal 1.).

"In Re : Rtmchobdas, (1976) 78 Bom. LR. 2l9.

191

securities speciﬁed therein, be conclusive as against the persons owing such debts or ltableon such securities, and shall afford full indemnity to all persons who in good faith make payment to the person to whom the certificate was granted.

\/ll. Slate for obtaining succession certiﬁcate.

34.32. The stage at which probate or succession certilicate should be ob-- Stage for obtaining rained has also become the' subject of controversy. in one Allahabad case'.3Fa"'4 the question for consideration was whether at probate or succession certiﬁcate was required to be obtained by the plaintiffs, before a decree could be granted in their favour. The High Court, applying section 213(2), held that probate will not be required to be obtained by a Hindu in respect of :1 will made regarding immovable properties situated in Uttar Pradesh, As to the applicability of section 214 at the stage of institution of proceedings. the High Court held--

"The purpose of section 214- is to make clear that no debt to a deceased person can be recovered rltrough the court except by a holder of one of the documents speciﬁed, the only exception being either whether the claim is made on survivorship. or whether it is in respect of rent. revenue or proﬁts payable in respect of land used for agricultural purposes. It may. however, be pointed out that section 214 does not debar the ﬁling of the suit. It merely debars 'a court from passing a rlvcree. ll' :1 suit has been filed, the court is fﬂlbidden from passing ct cleceree on the basis of a debt against the debtor of the deceased."

34.33. in our view, it is desirable that the matter should he put beyond Recommendationto possible controversies by codifying the Allahabad viewi. An Explanation on the add 31! Explaglatioll subject could be usefully added to the section*'_ for the purpose. :':'.:° '"""'"'°" °f VIII. J oint decrees.

34.34. Another question concerning the provisions of section 214 arises Joint scenes, in connection with joint decrees. Where the decree was passed jointly in favour of more than one decree-holder, and each one of them in his own right could execute the decree (provided the execution is for the beneﬁt of all)', the bar in section 214 does not apply'. Section 214, it has been held, can apply only when there is one decree--ho1der. Where there is only one decree-holder, taken on the death of the decree-holder, the legal representatives have no right to take out execution proceedings unless they have stepped into the shoes of the decree- holder by obtaining a succession certiﬁcate. In a Rajasthan case', there was only one decree-holder. and in order to avoid future conflicts between rival claimants, the bar of section 214 was held to apply. An Assam case', is to the same effect.

IX. Continuation of proceedings.

34.35. With reference to section 2l4(l)(b), a controversy has arisen S€Cti0n_ 214 (1) (b)-

whether it bars the continuation of an execution proceeding without obtaining iIi"°°""°" p'°°°°d' a succession certiﬁcate. According to one view'-'°, the main purpose of section g"

214 is to protect the debtor from vexatious proceedings and from being harassed at different times by different persons claiming to be successors; the continuation of an e.recun'on proceeding by the legal representatives is not hit by the section. and a succession certiﬁcate need not be produced in such :1 case. according to this View.

'Blzwtjuji \'. Iugerlzwar Dayal, A.[.R. 1978 All. 268.

"See case law discussed. para 33 . 32. supra, "Para 34 . 45, I'n_/i':I. 'NandLaiv. Mil/rur1'rKtu)1ut', A.l.R. 1974 Raj. 189.

"Ganeslimal v. Sim. Ammd Kanwur, A.[.R. 1968 Raj. 273 'Ramm'ba.s'.4ggarwa.'\'. MI. Baa'unn'kaJita, A.I.R. 1967 Assam 27.

'Ramrmatlm v. K. V.Kuppu.rwami. A.I.R. [971 Mad. 419. 42], para 7' (Ramanujam .l.}. "RagImln'r Sing/1 v. RajesIzu'cu'Prasaa' Sing/1, A.I.R. 1957 Pat. 435.

'Lat' Imam' v. Fulmati Kaur, A.l.R. 1965 Pat. 296, Para 2 (U.N. Sinha. _l.).

'".4kufn.MtrbukIzan v. Rajrmmm, A.l.R. i963 Andh. 69(D.B.).

192

The reasoning on which this view is based is that the bar of section 214

(l) ( b) applies only when persons claiming on succession themselves apply to execute a decree against a debtor for payment or recovery of the debt owing to the deceased. But, where no subszamive application is initiated by the legal representatives, mere continuation of the execution proceedings already initiated by the plaintiff decree-holder is not barred'-". It has also been pointed out that under 0.22. r. 2. C.l'.C. fresh application is not required.

According to a contrary view'--"' an application by a legal representative to bring himself on record in a pending case should be treated as an application for fresh execution, and thtrefore attracts the provisions of section 2144.

According to a recent Kerala judgmenti. section 2l4 applies to the continu- ation of execution proceedings.

Recommendation 34.36. Whatever be the true construction of the present wording, practical :9 add an Explana_- considerations require that the former view should be adopted, i.c. the continuation "°". "Sf" °°!"" of execution proceedings by the legal representative should not be hit by the g::':é;:ﬁ£]g°sx°°""°" section. A suitable Explanation should be added to deal with the matter'. No ' doubt, the object of section 214(1) is to protect the interest of the debtor and to see that only the person entitled to succeed to the assets realises the debt owing to the deceased. Nevertheless, there is a limit to which one can give effect to this logic. Considerations of expeditious disposal. must, at_some stage, prevail. If a \yrong person conti}r!1ues the execution. the rightful heir can claim the fruits of t e recovery from im.

X. Mortgage decrees.

Secured debts posi- 34.37. Certain questions have arisen as to whether a decree (preliminary "W 'eluding m°l"or ﬁnal) for the foreclosure or sale of property can be passed wthout a succession ""3°d°°'°°5' certiﬁcate where the mortgagee has died. Should the legal representative be asked to produce a succession certiﬁcate before obtaining such a decree? Section 214 does not expressly include within its scope a decree for the enforcement of the mortgagee's rights against the mortgaged property.

Foreclosure. 34.38. On a detailed examination of the case law, the position appears to be this, A decree for the foreclosure of a mortgage is not one for the payment of a "debt" so as to fall within the provision of section 214. The direction to pay within the period ﬁxed in the decree, is given not to fix a personal liability for the debt, but to enable the defendants to save their right of redemption and to prevent its extinction by foreclosure".

Money due under 34.39. suit to recover the money due under a usufruct_uar__v mortgage is usufnlctuary m0r- also not a suit for "debt" or money due under a contract, but is, in reality, one '3'5'- for assessment in money of the value of the plaintiffs mortgage interest".

Redemption. 34.40. A suit for redemption (brought by the heir of the mortgagor') is also not a suit against a debtor to obtain a decree for payment of his "debt". The plaintiff is really the debtor, and not the creditor of the deceased mortgagor, Obviously, therefore. a person who, as heir of the mortgagor, is bringing a suit for redemption, is not suing to recover any debt, and a succession certiﬁcate is not required".

1Benon'ev. Pnrnemlu, A.l.R. l973 Cal. 352, 353,(A.K. Sarirar, 1.).

3.5':-r'na!.7r KImndr>7wa.'. V. Bi.cn-mmrh Pn'., /\.l.R. i972 All. 321, 323, 32-1, para 7~9 (M.N, Shukl-4 J.}.

,.,Teji-am Rajmul v. Ranrp_mrr' Kmzdan La}, A.l.R. I938 Nag. 53?. ' Trjmm Rrrimal v. Rampyari Krrrrda/1La/. A JR. 1938 Nag. 538. '5C}Iac/(0 V. I«'arg/1e.s'e, A.l.R. I956 Tra. Co. I83. 'Ganeshamal v. Anand Kanwcrr, A.I.R. 1968 Raj. 273.

7Rr1mkrr'shmm Nair v. Easwnri dmmu, H979} K.L.T. 40] (June 4 and June ll. I979), (I979) yearly Digest. Supplement. Col. 1994.

"Para 34.45, infra.

'((1) Ammalma v. Gurlmmrtlri. ( 1893) l.L.R. 16 Mad. ()4.

(b) Marwmrv. Mitlzrana, (l900)A.W.N. 95.

'°.4rtmm_eaI: V. Valura Goundan (1901) I.L.R. 24 Mad. 22 "7.ufet'AIiv.Km11ff'rakas/r, A.l.R. 1929 All. 896 (Dalal J.).

I93 54.41. According to the majority of the High Courts, :1 suit to recover money Suits for Sale of mo- due on a simple mortgage, by sale of the mortgaged property, is also not a suit 'waged 9'°"°"'Y- for the recovery of a 'debt'. It is :1 suit to enforce a charge on immovable property. and no succession certiﬁcate. therefore, need he obtained by the heirs of the mortgagee to recover the money'.

'The mere fact that the remedy by personal decrezs for the debt is still available to the mortgagee would not also make any difference". On this view.

"debt" would not cover a decree for the enforcement of the mortgagee's rights against mortgaged property.

34.42. The Allahabad High Court, in its earlier cases, expressed the opinion that money lent on the security of a mortgage is a "debt" due from the mortgagor to the mortgagee, and the decree in a suit on such mortgage is a decree for the payment of "debt"?---i.e. payment by sale of the mortgaged property. Consequently. a succession certiﬁcate is necess:I1'y"°' 4 for proceedings on such decrees.

But, in a later Allahabad case"; where the personal remedy under the mortgage deed had become barred by limitation long before the suit was brought, and the mortgagee was simply entitled to a decree for sale of the mortgaged property, it was held that the application for the ::.\ecntion of the mortgage decree for realisation of the amount by sale of the mortgaged property was not an application to obtain an order for the payment of his "dcbt". No succession certiﬁcate was, therefore, necessary. T be earlier Allahabad rulings are not cited in the judgment.

34.43. It seems to us that but for the early rulings ol the Allahabad High True pog.'u'on_ Court, the position is well established that a decree for sale is not a decree for "debt". The later Allahabad judgment also discloses-«if indirectly»-21 changed trend. In this position. a clariﬁcation of the law is not required.

34.44. As regards personal decree, an application by the heirs of a niortgaeee persona; dare, for a personal decree under section 90 of the Transfer of Property Act (0.34, Succession certi- r. 6. C. P. Code. 1908) requires a succession certiﬁcate'. ﬁ°'"°-

Thus, where, after a decree for sale had been made in a mortgage suit, the mortgagee died and his sons got themselves substituted on the record, but the proceeds of the sale of the mortgaged property proved insuﬁicient, and the sons applied for a personal decree for the balance. it was held that until the applicants obtained -.1 certificate, no such decree could be made in their favour'. These cases also (In not necessitate any amendment of the law, '((1) Nana/mud v. l"cImwu. (I904) I.L.R. 28 Bom. 630. 632.

(/3) Ray}!!! .Vut/1 \'. Pm-es/'1 Mat/1. (I888) I.L.R. I5 Cal. 54. 57.

(cl Kmtc//mt \. Buff /Var/1. (I892) l.L.R. I9 Cal. 336, 339. dissented from in In All. 259.

la') Buid /V11!/1 \'. S/mmmmm/, (l 895)l,L.R.22 Cal. I43.

(cl M'o/mmzc(/ l'us1rf\'. .-'ibdur Ra/tint, (I899) l.L.R. 26 Cal. 339.

ff) Subremlmrimt V. Rrrkku. (I397) l.I_.R. 20 Mad. 232.

(,9) Pallurmnju \'. Bupamta. (I899) l.L.R. 22 Mad. 380.

(It) Pr1lam'_t'um'li V. Veemmmul, (I906) I.L.R. 29 Mad. 77.

(1') B(l.S'.'l Dmwrrr/Id V. Ragfttz/iii' St'n't1!I, /\.l.R. I955 Pat. 284, 286, 287.

=Rr1ma.mmr' v. Vmz/mnmm. A.l.R. I963 A.P. 135. I36. 137. paras 7 and I2 ("reviews case law) dissenting From Intel: Clumd \'. Muhammed Baksh, (I894) l.L.R. 16 All. 259.

3(a) Fate}: Clmmf \'. .=\/In/tmrznind Bu/t viz (I894) l.L.R. 16 All. 259 (I-'.B.') (Case under section 4- Succession Certiticate Act. I880).

(bl .41/(1/I Dari K/mn \'. Sam' Ram (I912) l.L.R. 35 AH. 74, 7'/'(D.B.l (cl Azmar \'. Sf!/rt. 9 A.L.J. 766, l6 l.C. I08.

'Kasumarz' V. Mu"/rku, A.I.R. I937 All. 227: (This was a suit tor salewsee Zafar Ali v. Kanti Prakash A.I.R. I929 All. 896.) jI'}l0hﬂ'fTlNl(7d I/Ira/u'm \. B/trt.t,>n'm1 Das, A.l.R. I935 All. 897. 898. (Sulaiman CJ. and Ben- net .

'Kulwrz/Ila Beam \'. Kr.-mm ('/lawn'. (I942). 43 C.W'.N. 4: A.l.R. I983 Cal. '/I4. 5.

7(0) Na/m'ra1m'v. Yenmm, I.L.R. 28 Bom. 630.

lb) Sahader v. Sukhawar, I0 C.W.N_. I45, I49.

(cl Abdul Sattar v. Scttva Blirlsharr (I908). l.l'..R. 35 Cal. 767.

Recommended amendments s ection Section Section 194

1. Recommendation as to section 214.

34.45. We have disposed of the various questions relating to section 214.

in For carrying out the points made so far in earlier paragraphs with reference to 2l5.

216. section 214, we recommend the insertion of the following Explanations to the section "Explanation li.--~Nothing in this section shall be construed as precluding a debtor of a deceased person from making payment of a debt to a person (in this Explanation referred to as the 'payee") claiming, on succession, to be entitled to the effects of the deceased person or to any part thereof, where the debtor is satisﬁed that the payee is so entitled and has taken from the payee a bond indemnifying the debtor; and where a debtor makes such payment in good faith and after due care and attention, he shall not be bound to make payment of the debt again to the person entitled to the effects of the deceased person or to any part thereof, as the case may be, but nothing in this Explanation shall affect any remedy which the person so cntitlegi may have against the payee who has received payment from the debtor."

"Explanation 2.--In this section, in sections 212 and 370, in sub-sectoin (1) of section 372 and in section 379, 'debt' includes any actionable claim, and "debtor" and "payment" shall be construed accordingly'-'.

"Explanation 3.----Nothing in this section shall be construed as precluding the institution of a suit for the recovery of any debt, but no decree shall be passed in a suit for such recovery unless the provisions of this section are complied with'."

"Explanation 4.----Nothing in this section shall be construed as barring the"

continuance by a legal representative of a proceeding for execution already initiated'."

X11. Miscellaneous.

34.46. This takes us to section 215, which reads as under :--

"2l5(l )---A grant of prob_ate or letters of administration in respect of an estate shall be deemed to supersede any certiﬁcate previously granted under Part X or under the Succession Certiﬁcate Act, 1889, or Bombay Regulation No. VIII of 1827, in respect of any debts or securities included in the estate.

(2) When at the time of the grant of the Probate or letters any suit or other proceedings instituted by the holder of any such certiﬁcate regarding any such debt or security is pending, the person to whom the grant is made shall, on applying to the Court in which the suit or proceeding is pending, be entitled to take the place of the holder of the certiﬁcate in the suit or proceeding :

"Provided that, when any certiﬁcate is superseded under this section, all payments made to the holder of such certiﬁcate in ignorance of such super-

session shall he held good against claims under the probate or letters of _ administration."

The section seems to need no change.

34.47. According to section 216, after any grant of probate or letters of administration, no person other than the person to whom the same may have been granted shall have power to sue or prosecute any suit, or otherwise act as 'lf so considered necessary, the first could be limited to claims for small amounts. 'See para 34. 36, supra.

3The deﬁnition of "debt" should, besides being incorporated in section 214, also be made applicable to sections 212, 370. 372(1) and 379, 'See para 34. 30, supra.

'See para 34. 33. supra.

'See para 34.36, supra.

{JR 19 representative of the deceased, throughout the State in which the same may have been granted. until such probate or letters of administration has or have been recalled or revoked.

This section also needs no change, having created no serzous problems.

CHAPTER 35 PROBATE, LETTERS OF ADMINISTRATION AND ADMlNIS'I'RATION OF ASSETS OF THE DECEASED SECTION 217--236 35.1. Probate, letters ot administration and 21(.lII1lI'lis'lL'uli0n of assets and Scope. liabilities of the deceased, form the subject matter of sections 217 to 236. The sections are mostly of a procedural character.

35.2. Section 217, the first section in this group, provides that save as section 217_ otherwise provided by this Act or by any other law for the time being in force. all grants of probate and letters of administration with the will annexed shall be made and the administration of assets of the deceased in cases of intestate succession shall be carried out, in accordance with the provisions of this Part.

The section needs no change, being a purely introductory provision. 35.3. The next section 218 reads as under :-- sccmm 213, "'2l8(l) If the deceased has died intestate and was :1 Hindu, Muhammadan, Buddhist, Sikh or Jain or an exempted person, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased. would beentitled to the whole or any part of such deceased's estate.

(2) When several such persons apply for such administration. it shall be in the discretion of the court to grant it to any one or more of them.

(3) When no such person applies, it may be granted to a creditor or the deceased."

35.4. In the context of this section, we propose to consider one question Joint fan-my pm. that has arisen. Where joint family property passes by survivorship to the sole petty passing by surviving co--parcener, the question arises whether the sole surviving co-parcener S"fV|V°fShIp- is entitled to apply for letters of administration under section 218, ls he a person 'who would be entitled to the whole or part of the estate of the deceased' within the meaning of the section? There seems to be a conflict of decisions on the subject.

35.5. A Madras case' answers the above, question in the atiirmative, though Conflict of news. the observations in the case may be regarded as obiter. But. according to the Punjab view, if the deceased person and the present P€titioner were members of a joint family, then, immediately on the death of the deceased, his interest in the estate at once ceases and the whole interest in the estate belongs to the petitioner by survivorship, and there is no "estate of the deceased" to be adminis- tered: there is no "succession" to the deceased's estate, because he has left nothing to succeed to. Qonsequently. an application for letters of administration is not competent in such cases?

tin m pm Mmzarala, (1910) l.L.R. 33 Mad. 93, 97; 10 M.L.J. 591 (case under Court Fees Act, construing section 23. Probate and Admn. Act). ' 9(0) Utram Devi v. Dina Nath, 5 PR. 1919, 51 I.C. 651. 652, distinguishing in re Desu Manavalu, l.L.R. 33 Mad. 93, on the ground that the remarks therein were obftor. (bl Ranmgiri v. Govindanunalr. A.l.R. 1924 Rang. 329. 330.

Recommendation 218 Section to amend section

219. 196 The Bombay practice, as is shown by some reported cases', is that when the court grants letters of administration, it is not concerned with inquiries about title. But the Bombay cases did not relate to claims by suri-ir0r3v'ti[;, The claimants (petitioners) had their claim on the basis of succession, and it was the opposite party that put forth a case that the property was joint family property. The court held that it was not concerned with the question whether the property was, or was not, joint family property. It was no part of the duty of the testa- mentary Judge to consider the question of title to property.

The real conﬂict is between the Punjab and .\/lzulras rulings. as stated above.

35.6. We are of the opinion that it is desirable to clai'ily, the position, in view of the conflict of decisions on the subject'-'. The Punjab view may, on a literal construction of the section, be correct. But if the law is to be clariﬁed, the choice, we think, should be in favour of the Madras view, which is more practical and more convenient. We, therefore, recommend that the Madras view should be adopted, by amending section 218 in a suitable manner. This could be done by inserting an Explanation to section 218 in the following terms.

"lixplwzzztion--;W/zere the property of it Hindu mtzlivtzlccl coptncenury pt_9'ses by surrirtorslzip (0 the sole surviving C0[)(1'I'C€li€I', the sole surviring c0pm'ce'm'r shall, for the [I_urp0SeS of t/ifs section, be deemed to be a persan entitled to the estate of the person on whose death the property so passes, and shall accordittgly be entitled to apply for letters of azdrnisrimmit,-:2 umler this section".

35.8. This takes us to section 219. It provides that it the deceased has died intestate and was not a person belonging to any of the classes referred to in section 218, those who are connected with him. either by marriage or by con- sanguinity, are entitled to obtain letters of administration of his estate and effects in the order and according to the rules hereinafter stated, namely :-

(a) If the deceased has left a widow, administration shall be granted to the widow, unless the court sees cause to exclude her. either on the ground of some personal disqualiﬁcation. or because she has no interest in the estate of the deceased.

There are two illustrations annexed to this clause, as under :-----

"(i) The widow is a lunatic or has committed adultery or has been barred by her marriage settlement of all interest in her husband's estate. There is cause for excluding her from the administration.

(ii) The widow has married again since the decease of her husband. This is not good cause for her exclusion."

(b) Next, it is provided that if the Judge thinks proper, he may associate any person or persons with the widow in the administration who would be entitled solely to the administration if there were no widow.

(C) If there is no widow, or if the Court sees cause to exclude the widow. it shall commit the administration to the person or persons who would be beneﬁcially entitled to the estate according to the rules for the distribution of an intestate's estate.

Provided that. when the mother of the deceased is one of the class of persons so entitled. she shall 'be solely entitled to administration,

(d) Those' who stand in equal degree of kindred to the deceased are equally entitled to administration.

( e) The husband surviving his wife has the same right of administration of her estate as the widow has in respect of the estate of her husband.

'(a) 00Ch(1l'aI'dHI \'. Dalutram. l.L.R'. 28 Born. 644 (Jenkins. C.J.).

(bl Parrati Rm' \'. Ragllttnmt/1 l.u.\'/nan. (I940) 42 Bom. LR. I053 (Kama. .l.). A.l.R. I941 Bom. 60.

"Sec paragraph 35.4, supra.

I97 (1') When there is no person connected with the deceasetlby marriage or consaguinity who is entitled to letters of ad-:nini.sti-atiori and willing to act, letters of administration may be granted to a creditor.

(g) Where the deceased has left property (in India}, letters of administra-

tion shall be granted according to the foregoing rules, notwithstanding that he had. his domicile in a country in which the la\v relating to restate and intestate succession differs from the law of India.

35.9. In this section, section 219, clause (a), illustration (ii)', needs some Recommendation comments. Clause (at) provides that the court may exclude a widow on the go amend SW10' ~ , - ,- , - as , _ - , - -19 (a) Illustra-

ground ot some personal disqualiﬁcation or because she has no IHILICSC in the mm (H) estate of the deceased". In this connection, illustration (ii) to the clause provides ' that the fact that the widow has married again since the dccease of her husband is not a good cause for her exclusion (from the preferential right conferred by the section), This illustration seems to require some modiﬁcation, The widow who has remarried may not, in every case, be a suitable person to administer the property of her deceased husband. All that can be said is that mere i-c--nzarr~iage of the widow need not deprive her of the preferential right, lllus-'_ration (ii) to section 2'l9(a) should, therefore, be revised as under :--

"tiij The widow has married again since the deceasc of her husband. This. in itself, is not good cause for her exclusion."

We recommend accordingly.

35.10. Section 220 provides that letters of adininistration entitle the adminis- SGCUOH _ 330"

trator to all rights belonging to the intestate as effectually as if the administration Eg;'§:ﬁ3'm'§;';'s ° had been granted at the moment after his death. The main object of the section ' ' ' is to make the grant of administration relate back to the date of death. The section has created no problems, and needs no change.

3S.ll. Section 221 reads as under:

"$221. Letters of administration do not render valid any intermediate acts 5°°"°" 231*' oittgpuadministrator tending to the diminution or damage of the intest'ate's ';';t5a'$3[:in';:::::':; c t .' .

The section needs no change.

35.12. Section 222 provides that probate shall be granted only to an executor Section 222. appointed by the will. The appointment may be expressed or by necessary impli-- cation. There are three illustrations to the section, as under 1 "(ii A wills that C be his executor if B will not. B is appointed executor' by implication.

(ii) A gives a legacy to B and several legacies to other persons, among the rest to his danghter--in-law C'. anti adds "but should the within--named C be not living I do constitute and appoint B my whole and sole executrix".

C is appointed executrix by implication.

(iii) A appoints several persons executors of his will and codicils and his nephew residuary legatee, and in another codicil are these. words.~--"I appoint my nephew my residuary legatee to discharge all lawful demands against my will and codicils signed on different dates". The nephew is appointed an executor by implication."

The section heeds no change, not having created any serious controversies.

35.13. There is one new point requiring consideration. As the law in India SCCUOH 2?-25 stands at present, a person appointed executor in the will must be given the gggfﬁggitor grant of probate (if he applies for it), irrespective of his personal unﬁtness for ' the position". He can be removed only if, after commencing the administration of the aﬁairs of the deceased, he commits breach of trust, waste or other default.

"5 as 35 .73", isrrpra.

=secuon 2(1).

198

This seems to be English law1 also. The question to be considered is whether this position requires modiﬁcation in order to deal with certain special aspects.

hi this context, we may refer to the suggestion that was made by one learned writer'-' a few years ago. His suggestion is that while the court should ordinarily have regard to the wishes of the testator, it should have a judicial discretion to exclude, from acting as executor, persons who, on the face of it. are unﬁt even to begin to administer the affairs of the deceased testator. The court should not have to wait to see whether the persons so unﬁt in fact commit waste or breach of trust and then remove them.

g".°§°!'t P°5'"°" 35:14. The pros and cons of the matter may be examined. On the one hand, rttictsed. _ - - . . . ., the present position can be ]UStlﬁC(l by stating that an executor rs a person of the testat0r's own choice and the testator would not prefer someone else's judgment to his own----not even a judgment of the court. Apparently, on this principle, the law allows a testator to make the appointment of any person whom he likes as an executor and leaves the question of determining the ﬁtness of that person absolutely to the choice of the testator.

As against this, one has to bear in. mind the serious hardship which may possibly be caused if a person acts as an executor when he is not ﬁt at all, and when (from the known facts), one can infer that the testator would not have continued the appointment. A situation may, for example, arise where there is some interval between the date of the will by which the appointment was made and the death of the testator. The person appointed as executor in the will 5 might have become unﬁt after the will, the testator might have not been able to apply his mind to the question whether the appointment should be continued. The testator might even have mentally taken a decision to make another appointment, but might have found no time to effectuate it in a formal writing.

In a comment (on -our Working Paper), forwarded to us" by the Catholic Bishops' Conference of India, a query has been raised as to how the court will form the opinion that a person is "deﬁnitely" unﬁt to work as executor. It has been stated, that the action of the court would be arbitrary. We do not, however. share this apprehension. No doubt, positive acts of past misconduct on the part of a person would be the best proof of his unﬁtness, but one need not rule out other situations where adequate material is placed before the court about the unﬁtness of a person to act as an executor. The court can be expected to act with judgment and discretion. and not arbitrarily, in all such matters.

)wer to be given. 35.15. Having regard to all aspects of the matter, we are of the opinion that it would be in the ﬁtness of things if the court is given a power to exclude an executor who is deﬁnitely unfit. Evidence of actual commission of waste or breach of trust by an executor after taking charge as t.',\'('cut0r, should not be insisted on_ in our opinion, :commendation to 35.16. In the light of the above discussion, we recommend that the following 5;: new Section new section should be inserted on the subject-

"222A. The court may by order exclude from acting as exazcutor, a' person who, in the opinion of the court, is deﬁnitely unﬁt to adnzini.stter the af_fait's of the deceased, whether or not that person has committed waste or breach of trust after c-Ommencing administration of such aﬂairs :

Provided that no such order shall be passed without aﬁo.'-~(./r'ng such person a reasonable opportunity of being hear ."

etion 223 - Pro- 35.17. Section '223 prohibits the issue of probate to persons who are minor te to minors and or of unsound mind and restricts the grant of probate as regards certain classes 3°'|'°1""'°"5- of corporations. We are primarily concerned with the portion relating to corpora-

tions. On a literal reading of the section, probate cannot be granted to any 'R. V. Raines, (1698) l Ld. Raym 36]: 9| E.R. 1138 Halsbury. 4th Ed.. Vol. l7, para 720. page 381.

9F.C. Hurley, "Reconstruction of the law of Succession" (I973) Vol. 15. Journal of the Indian Lawlnstitute, 420,424.

'Catholic Bishops' Conference of lndia. letter dated 3rd October, l984.

I99 "association" of individuals unless it is a ('Uni/)(Hl_\' satisfying the prescribed require- ments.

35.18. Some diﬂiculty is created by the word "a.ss0ciation", in relation to non-commercial corporations. For example, does this word cover a University? This question arose before the Allahabad High Court a few years ago. The High Court held that the Banaras University was a "corporation", but was not an "association", because a corporation having a separate identity from its members cannot be called a mere "association" of individuals 4-'.

The Allahabad High Court also cited an English case", where James L. J. had regarded "company" and "association" as synonymous, The Allahabad case actually related to section 236, but is equally applicable to section 223, the wording in both sections (so far as is material) being the same.

A similar vicw seems to have been taken by the Oudh' Chief Court, and (impliedly), by the Calcutta High Court":

35.19. it would appear that in England, the present law on the subject is somewhat more liberal. Under the statutory provisions now in force in England probate can be granted to a trust corporationi, but judicial decisions and practice directions (or rules of court) permit a corporation sale also to be an executor'.

and further permit the grant of probate to a corporation aggregate which is not a trust corporation. In the latter case, however (i.e. in the case of :1 corporation aggregate which is not a trust corporation), the probate must be granted to its nominee. It must also be shown that the corporation has power to act as personal representative. and certain other safeguards are laid down'.

in lndia, probate cannot be granted to a registered society", because of the restricted language of section 223. A registered society is an "association", but not a "company".

35.20. We are of the view that the section should be made as comprehensive as possible. In any case, it appears to be desirable to revise the section so as to indicate s ciﬁcally which corporate bodies can, or cannot, be granted probate. As regar 5' companies, the existing restriction may continue. As regards other corporate bodies, it is enough if the corporate body applying for probate is competent to accept probate in law----a question primarily to be decided with reference to the law governing its consitution.

3S.20A. In a suggestion forwarded to us by the Catholic Bishops' Conference of India", it has been stated that the Church will have to frame rules, if it is to be legally empowered to seek probate. The relevant paragraph in the letter is some- what un-intelligible, but this seems to be its purport. In this connection, we may point out that the law can merely provide for the capacity of corporations as recognised in the legal system. Internal formalities, such as rules, will, of course, have to be observed by the concerned agencies or authorities within the Church, assuming that a particular Church is recognised as a corporation in law.

35.21. Accordingly. we recommend the following re-draft of section 223----

'"223. Probate cannot be granted----

(a) to any person who is a minor or is of unsound mind, or 'B;w(v2rz/2.r Hindu Unversity v. Gnuri Duff, AIR. 1950 A11 195- '3Bagchi. Principles of the Law of Corporations, Tagore Law Lectures. (l9l4't. pages 253-259- referred to.

"Sinitlr V. Amlersmz. ( l 830) l5 Ch. D. 247, 273.

'Berzaras Hindu Um'versity v. Sr1'Krishan Das. A.I.R. 1920 Oudh 124 (Benaras Hindu Unversityl.

'*Jr'tendra Nari: Palit V. Lokendra Natl: Paiif, A.l.R. I916 Cal. 295. "Section 161. Judicature Act. 1925. (Eng).

'Re Hawrox, (1842) 3 Curt. 75.

'Non-contentious probate Rules, I954, rule 34(3), and Practice Direction in (1956) l W.l..R.l27.

°,Mahnslzaya Kri.s'.'1n(I v. Maya Devi. A.l.R. 1948 Lah. 54. "Catholic Bishops' Conference of' India. letter dated 3rd October. 1984.

Nou- commercial corporation S. Law in England Need to amend th section.

Section 223, an the point relating t the Church.

Recommendation to revise section 22 Faction 224- everal executors.

Section 225 hection 226.

icction 227.

oction 228.

Question to be 3onsidered----:ibsont of these t\vo sections, is nrecutor.

Case law.

200

(b) to any company unless it satisfies the conditions prescribed by rules to be made by the State Government in this behalf. or (C) 10 any r'0rp0ran'un other than a ('0nrpany, if it it no; legally <'ompt'.r'em I0 accept pro/rum"

35.22. According to section 224, when several executors are appointed. probate may be granted to them simultaneously or at different times.

The section needs no change.

35.23. Section 225 provides that if a codicil is discovered after the grant of probate, a separate probate of that codicil may be granted to the executor, if it in no way repeals the appointment of executors made by the will. It also provides that if different executors are appointed by the codicil, the probate of the will shall be revoked and a new probate granted of the will and the codicil together.

No amendment is required in the section. which has raised no problems.

35.24. According to section 226, when probate has been granted to several executors, and one of them dies, the entire representation of the testator accrues to the surviving executor or executors. No amendment is required in this section also.

35.25. Section 227 provides that probate of a will, when granted, establishes the will from the death of the testator, and renders valid all intermediate acts of the executor as such.

This section also needs no change.

35.26. Section 228 provides that when a will has been proved and deposited in a court of competent jurisdiction situated beyond the limits of the State, whether within or beyond the limits of India, and a properly authenticated copy of the wlil is produced, letters of administration may be granted with a copy' of such. will annexed.

Certain questions arise under this section, which concern section 241 also. Section 241 is as follows :--

"241. When any cxcurmr is absent from the State in which application is made, and there is no executor within the State willing to act, letters of administration, with the will a.nne'.ued?, may be granted to the attorney or agent of the absent executor, for the use and beneﬁt of his principal, limited until he shall obtain probate or letters of administration granted to him."

35.27. The question that needs to be considered regarding the precise scope this. When a will has been proved and deposited in a court of competent jurisdiction situated beyond the limits of the State, which is the provision whereunder letters of administration (with the will annexed or with a copy of the authenticated copy of the will annexed), can be granted to the attorney of the absent executor? It may be noted that section 241 postulates production of the original will-----note the words 'with the will annexed". In contrast. section 228 speaks of a copy of the will being annexed. ' 35.28. It is necessary to refer to two cases---one decided by the Allahabad High Court and the other by the Madras High Court--dealing with the question.

In the Allahabad case', a person had died in Scotland leaving property both in India and in the U. K». By his will, he appointed an executor, who, in due course, obtained 'conﬁrmation' of the will from the Court of Scotland. The executor then appointed the present applicant as his attorney for the purpose of apply- ing to the proper court in India for letters of administration with an authenti-- cated copy of the will annexed. The attorney accordingly applied to the High Court of Allahabad.

'Note the word 'copy'.

'-'Note the word 'will'.

3Para 35 .26, supra.

'In re AdwaitNa!h, A.I.R. 1948 All. 351 (F.B.).

Qlll The High Court noted that the practice in Madras, Calcutta and 'Bombay had been to grant the letters of administration in such cases under section 241, but observed that, "the provisions of section 241, were not intended to apply. nor are they appropriate, to the case in which a grant of pi-abate has alirzxrly been 0l)ftilll('¢"l in another court. The section applicable in such case is section 228'. The High Court took the view that it may, under section 228. grant letters of administration, with a copy ol:' the authenticated copy of the will annexed. to the agent or attorney of the executor.

35.29. In the Madras case', a lady had died in Eiiglanil, leaviiig a will. By the will she appointed her two nieces to be the executrixes. They obtained probate in England and appointed the Lloyds Bank Ltd., Calcutta, as attorneys, who. in turn, appointed one of their 0lllC6l'S, as Attorney, to obtain letters of administra- tion with a copy of the will annexed, in respect of the property of the deceased in India. The officer of the Lloyds Bank ﬁled a petition in the Madras High Court for the grant of letters of administration, to have effect only in the State of Madras, along with a certiﬁed copy of the probate.

The question for consideration before the High Court was whether the grant was to be a grant of letters of adniinistratioii under section 241 01' under section

228. The question was material, because the petitioner was unable to produce the will in orighial. The Court observed that section 241 did not require the production of the original will. Since the will had been proved and depositcrl in a court of competent jurisdiction in England, what can be produced here is only a properly authenticated copy of the will. Therefore, a case coming under section 228 would be an exception to the general rule" in section 276 as to the production of the will in origitzal, though the exception is not mentioned in section 276.

The court said that in section 241, the expression "letters of adniinistration with the will annexed' had been used in antithesis to letters of administration granted on intestacy. It was permissible to read section 241 along with section 228, and an attorney or agent of the executor can obtain letters of administration without producing the original will, if the will had been proved and deposited in a competent court and a properly authenticated copy of the will is produced.

35.30. The points of difference between the Allahabad and the Madras view can he thus summarised :

(a) According to the Allahabad view, in a case under section 241 the will must be established. Not so, according to the Madras High Court:

(b) While the Allahabad view is that section.228 does not make provision for the grant of administration to an agent or attorney, according to the Madras High Court. this defect can be cured with the aid of section 24l.

(c) The Madras High Court has put the case coming under section 228 as an exception to the rule provided in section 276. The Allahzibacl High Court has rcfiised to accept this argument.

The controversy has a practical aspect also, concerned with the furnishing of a bond. In the kind of cases mentioned above, when the letters of administration were granted under section 228 by the Allahabad High Court, the petitioner had been asked to furnish an administration bond as required by section 291(1). Since the Madras High Court granted letters of administration under section 241, an administration bond under section 291(1) was not required to be furnished. The Madras High Court, expressing its disagreement with the above-mentioned Allahabad High Court decision, observed, "Sections 228 and 241 should not be read as if they provided _for separate 'circumstances and they were mutually exclusive. On the other hand, they could be read together. lt -is true that the objects of these two sections differ. The real object of section 228 is to dispense with the production of the proof thereof, for the reason that it had already been proved and had been deposited in a court of competent jurisdiction. The real 'In re L.C. [.evar/r, A.l.R. 1954 Mad. 898 (PB).

2Section 276.

Points of ditierencc between Allahabad and Madras view summarised.

Recommendation _ for amending sec-- by amending section 241 so as to add' an Explanation to the effect that (3) tion Section 229 to 231.

Section Universal

241.

232. and 202 object ol'_section 241 is to dispense with an application by the executor himself when he is absent from the province in which the application is made."

_ According to the Allahabad High Court, these sections are mutually exclu-- sive and deal with separate circumstances. The Madras High Court, however, holds that they are not mutually exclusive and do not provide for separate sets of circumstances.

35.31. in our opinion, it is desirable that the controversy should be resolved section 241 will apply also where the case falls under section 228 and (b) if the case falls under section 228. a copy of the will is to sutﬁce and the original need not be produced.

35.32. Section 229 to 231 deal with renunciation. Although section 230 is applicable only in the case of an executor, and there is no corresponding pro- vision in the act with regard to an administrator, still there is no reason why the principle of these sections should not apply to an administrator. In English law and practice, there is, as regards the right of renunciation, no distinction made between the case of an executor and that of an administrator, and the same rule should apply in India.

As regards the withdrawal of renunciation, the rule is that u renunciation by an 'ddmlIl.lSlI'EitOl' cannot be withdrawn without the leave of the court, and he can be allowed to withdraw only in a fit and proper case and not merely on the ground that he has changed his mind".

35.33. Section 232 reads :--~ "232. When----

(a) the deceased has made a will, but has not appointed an executor, or

(b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the will, or

an universal or a residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the whole estate, or of so much thereof as may be unadmimstered".

35.34. Section 232 is concerned with two classes of legatees, namely the '°5'd""'"3" '°3"'°°S universal legatee and the residuary legatee. The universal legatee is one who, by No change needed in section virtue of the will, is entitled to the whole of the testator's property. In the absence of the executor, he has been given the right to prove the will and' to obtain letters of administration with the will annexed. He cannot, however, obtain probate.

The residuary legatee is, it is said, the testator's choice; he is the next person in his election to the executor3. When the residum has been disposed of to another person, there would be no purpose in giving the administration to the next--of-kin, because no beneﬁt can accrue to them by the grant of the Letters of Administration in such cases.

35.35. What words would create a universal or residuary legatee is not 232' a matter with which we are concerned at the moment. that teing a question of cor struction of the words of the will. It is enough to note zhat there are adequate reasons for the grant of letters of Administration to the universal legatee or the .

residuary legatee. in preference to the next-of-kin.

The section, therefore, needs no change.

7'4'l:o be carried out under section 24 l 3The Mancltersa, A.l.R. l929Bom. 33, 34 (Rangnekar 1.). Atkins v. Bernard. 2 Phill, C.l8. cited in N.D. Basu. Law of Succession (1957), page 699.

35.36. Section 233 provides that when a residuary legatec who has a bene-- Section ﬂcial interest survives the testator, but dies before the estate has been fully adminis- tered, his representative has the same right to administration with the \vill annexed as such residuary legatee.

The section needs no change, 35.37. According to section 234, when there is no egtecutor and no residuary legatee or representative of a residuary legatee, or he declines or is incapable to act, or cannot be found, the person or persons who would be entitled to the administration of the estate of the deceased if he had died intestate, or any other legatee having a beneﬁcial interest, or a creditor, may be admitted to prove the will, and letters of administration may be granted to him or them accordingly.

The section needs no change, 35.38. According to section 235, letters of administration with the will annexed shall not be granted to any legatee other than an universal or a residuary legatee, until a citation has been issued and published in the manner hereinafter mentioned, calling on the next--of-kin to accept or refuse letters of administration.

The section also needs no change.

35.39. Section 236 provides as follows 2 "236. Letters of administration cannot be granted to any person who is a minor or is of unsound mind, nor to any association of individuals unless it is a company which satisﬁes the conditions prescribed by rules to be made by the State Government in this behalf."

35.40. In view of what has been stated' above under section 223. we re- commend that section 236 should be revised as follows :---

"236. Letters of administration cannot be granted--~

(a) to any person who is a minor or is of unsound mind, or

(b) to any company unless it satisfies the conditions prescribed by rules to be made by the State Government in this behalf, or ( C) to any corporation other than a company, if it is not legally competent to accept letters of administration."

CHAPTER 36 LIMITED GRANTS : SECTIONS 237 TO 260

233. Section 234.

Section 235.

Section 236.

Recommendation.

36.] Limited grants are dealt with in some detail in sections 237 to 260. Limited grams_ The various types ol such grants are as follows :--- I. grants limited in duration--sections 237 to 240;

II. grants for the use and beneﬁt of others having a right--sections 24l--- 246;

III. grants for special purp0ses------secti0ns 247---254;

IV. grants with exception---sections 255-256;

V. grants of the rCst------section 257;

VI. grants of effects un--administered---sections 258~--260.

lseediscussion as to section 223, supra.

85-L/B(D)l44MofLJ&CA-14 Sections 237-238 Introductory.

Loss of will before death--applicability of section_ 237.

Section 23 8- Narrow scope.

Defect in section 237 as to destruc-

tion otherwise than the act or mistake of testator.

Testator not men-

tally competent.

Want of symmetry between sections 237 and 238.

204

1. Grants limited in duration.

_ 36.2. Section 237 deals two situations. When a will has been lost or mislaid SIl1Ce the testator's death, probate may be granted of a copy or draft of the will. This is the ﬁrst situation dealt with in the section. The second situation relates to the cases where a will, "has been destroyed by wrong or accident and not by any act of the testator". Here again, a copy or the draft may be utilised for the grant of probate. In both the cases, the probate is limited until the original Wlll or a properly authenticated copy is produced. __ 36.3. According to judicial construction of section 237, the words "since the testator's death" qualify only the word "mislaid", and have no referene to the word "lost". Thus, according to judicial construction, probate can be granted where the will is lost before or after the testator's death. In our opinion, it is desirable to codify this interpretation so as to make the section self-contained.

Of course, the general rule: that there is a rebuttable presumption that the testator destroyed the will where the will lost proved to be in his custody and is not forthcoming applies in India also. At least, it was so held in a Calcutta case?

-But another case' seems to create a doubt in this regard, inasmuch as it holds that there is no rule of law that under certain circumstances a presumption should be made that the will was revoked. In our opinion, the earlier Calcutta case takes :1 more practical view. and that view should be incorporated in the section'.

36.4. Under section 238, probate can be granted if the will has been lost or destroyed and no copy has been made or draft preserved, Probate is then granted of the contents of the will "if, they (the contents) can be established by evidence". "Evidence" here, of course, means secondary evidence. The topic was discussed in detail in the leading English case of Sugden v. Lord St. Leonw-ds', where 21. will was established by parol evidence alone.

36.5. Reverting to section 237, it -would appear that section 237 is narrowly drawn. The words 'wrong or accident' do not, if taken literally, cover the cases where a natural calamity, such as a ﬂood, destroys the will. The section is ,also defective, inasmuch as the language does not make it clear that the section applies only where the testator had no intention of revoking the will. If an act of the testator done with the intention of revoking the will result in "destruction of the will", it is obvious that the section should not be applicable. This situation should be exeulded from the scope of the section?

36.6 On the other hand, where, though the will is destroyedl by the physical act of the testator, the testator is not a person in possession of his mental faculties, the situation should be included in the section. We are recom-

mending to cover these points".

"Ibis criticism applies, in substance, to section 238 also. , 36.7. With reference to section 238, it is further to be pointed out that it does not deal with the various situations so elaborately as the preceding section---section 237----does. The situations to which sections 237 'and 238 apply are the same, the only difference being that if a copy or draft of the will is 'Sarat Chandra V. Golab Sundari, (1913) 18 C.W.N. 527. '-'For the English law, see Welt'/1 v. P/iillips, (1836) 1 M00. Vol.39, page 897, f.n. (q) (b) (e).

3/inwar Hossein v. Secretary afState, (1904) I.LR. 31 Cal. 885, Halsbury, 4th Ed., Volume 17, page 449 para 448.

'Efari v. Podai, A.l.R. 1928 Cal. 307, 309 (The case cites Allan v. Morrison, (1900) A.C. 60 (P.C.) which, however, holds to the contrary).

5See para 36.10, infra.

°Sugden v., Lord St. Leonards, (1875-1880) All E.R. Reprint 21. 7Para 36.2 , supra. I 'See 'para 36.10, infra.

l'.C. 299, 302, Halsbury, 3rd Ed-

30."?

i .,"'(,n "It? applies, Lllltl iii iithcr cases scctiiiii; 238 tl_t)pllCS- '".labIe' ".0? -bxuctlle 'ici\«'isions in both the SC(.'llUll5 should as far as possible. {'Og1C3""il; £5)"; qan1éJ]an.éua_QC At present. however, the wortline Of the two we couc Ci ' . ~.' nomal, -. 1- h it . _/ ~ , , 2 5. This (lﬂ:t.lLllC.. 5 (JUL rt.

sectons (237 338) dlﬁe" Creatmg m a removed'.

1!» 8 llicrc 'tlso remains to he considered the situation of |0.~..s or Llcsti'iie- Loss or destructipn mm (,1: ll 'par; of the w1'l{: Judicial ilecisions" have expressly held that probate': Call Or PH" Ofllle WT"- be granted if a [Jiirt of the will is lost Or destroyed. it is desirable that the point should he C.'Zp1'CS.Sl}' tlczilt witlr', 1,69 Apm-i from those anieiidmeiits of at \'Cl'l)(ll nature. as Ll nizittcr of Need to expantlihc polie;./, it is also ciesirhble that sections 237 Zill(l 238 slioiiltl apply wh'€_thg',« the scoiie of sections will was lost or mislazd ilneforc' the (ll('t'iI/I or after I/ii" deal/1. lii fact. {.115 is the position in English law'. which permits the gram of probate of it copy or drtift in such circumstances.

36 10 In the light of the above discussion. we l'CC0)lll1lt.'T1Ll that 5CCll0llb 237 Rﬁcvmilleﬁdaiion ' ' ., < . ,- ., ., .. . . to revise sections .738 should he rei'li'ai'tctl. and n*.?'.'.' stctirins Sl'l(lill(l lit, lllS<.FlL{l as follmis .~~ 237 _ 238 and to ll'lS€l'lS€CTi0ﬂ 238A, "337. \~\/llcii »--

(Lil as will has been lost mi' niisluitl /Jefirm ur t:_t!u' the testzitiiik death. iir liais been (lt'.'Slt'U}t:(l by it iir2Im'aI L".'tlIf and not by zmy L!'Jl' of the tcstutoi' tiiimmiiiiig in law to rei':2c'a.Ii'n;i uf 1/18 W/1'. Emil (1)) ti Copy of the will or the draft of the will has bccii preserved, probate. may be granted of such ii copy or draft. limited iiiitil thr 0l'igl71':!l or it pmperly :'.UfllcfltiC{1l€(l cup'; of it is priitlticcti."

"238. When ;i will has been lost or mislaid iii [fie c'z'rc'imzslci/ices meiilibized in neciitm 237. and no cnpy of draft of the Will has been p1'L'SCl'V€'(l, probate niziy ii: gt'-tinted of its COIIICIHS if they can he cstahlislicil by CV1(lC1"tCC .

"23S.¥\_ /:2 .yct~.iiu,:i.\ 337 and 238. "it'i'll" i'i2cl11t/9.9 u pun' ii] [I wf.'/_ "238B. EV/'ici'c u will ,i;mi=cz1 to ]iuw /7£'('ll lost' in //re cu.t10d_\' of 1/1? tcstatur /icfnre /iis dmtlz is not f()I'{/i'('()fi'Il'l?g after fly'? dearly, the court may preszmzc that it l1'(l.S' ll('.\'H'!)_\'€d /1)' an act of i'/It' tc'.r(ci(0i' ZIHIOIIIIIIIPIQ in law to its n'l'e)r'u/.7(iii"'.

3(i.l l. lliis lk1l\'C.\ U5 In .\L'L.'llt)11 23'). .-\cetxrtli1l.;I tti sectiiiii 239, when the 5c--_\1,'L,n 3_;9_ will is in the p(lsSCZ~.Sl0ll til' it person residing out of the State in which zipplicatioii for pmhzite is made. who has refused to or neglected to deliver it up, but a copy has been 'l1'i1l}.<lE'ill,lC(l to the cxcctitnr. }_Lll.Ll it is ll_CCCSS2Il'y for the interests of the estate that probate should be granted without waiting for the mrival of the origiiizil. prohtitc iiizt-_y lit: gt'Lll'llC(l til the copy so il'1lll.\fmllI'C(l. limited until the will or am zuitliciiiicatcd COpy of it is p1'U(luCCLl.

The 5CL.'ll1)ll iiuutls no cliziiigc.

_3(7.l3. i\C<:Ul'Llii'ig to section 240. \V'l1Ct'\: ISU will uf the (lt3CCd5c(l is f0l'l.i1~ Section 240. uiiiiiiiig. but there is rcastm to l')E'll€V'(.' that there is 2) will in cxiistencc letters of tidmiiiisiriiiitizi imiy he griintcih limited until the will. in' {in 2iu1_h¢n1ic;_1tQ(l copy of it is protiiiceil The scctiuii tlCt.'(l.\ no cliuiigc.

'For the concrete recommendation, see para 36' tO_ iii/,=;,_ . 3""""""' N0'/' "- 5""'t'.1'1"'l" (l -999') l.L.R. 26 Call (~34 l'ca.~'c tinder section 25. Pm! t and /\Cll]'lll3l\l- ration Act, i881).

'lror concrete i'ecomiiiciidziti0ii_ sci: palm 36.10, injiu. 'Re. We.'ii',i. Smi!/i V. Jo/msoiz. (1964) Z All ER. 9'? , 92 (Faulks J.) (Probate szrantcti of completed tlrali L There was evidence that later on. the testatrix said that it was her will). V Section 24i.

Need to amend sec-

tion 241 so as to exclude cases un- der section 273.

Non-resident attorney'.

Recommendation _ to revise section 241.

206

11. Grants for the beneﬁt of others 36.13. Section 241 reads--~ "When any executor is absent from the State in which application is made, and there is no executor within the State willing to act, letters of "administration, with the will annexed, may be granted to the attorney or agent of the absent executor, for the use and beneﬁt of his principal, limited until he shall obtain probate or letters of administration granted to himself."

In connection with this section, certain question Ltriseby reason of secton

273. Section 273 reads----

"273. Probate or letters of administration shall have etlect over all the property and estate. movable or immovable, of the deceased, throughout the State in which the same is or are granted and 'shall be conclusive as to the representative title against all debtors of the deceased and all persons holding property which belongs to him, and shall afford full, indemnity to all debtors, paying their debts and all persons delivering up such pro- perty to the person to whom such probate or letters of administration have been granted: ~ Provided that probates and letters of administration granted----

(a) by a High Court, or

(b) by a District Judge, where the deceased at the time of his death had a ﬁxed place of abode situate within the jurisdiction of such Judge, and such Judge certiﬁes that the value of the property and ,estate affected beyond the limits of the State does not exceed ten thousand rupees.

shall, unless otherwise directed by the grant, have like effect throughout the other States".

"The proviso to this section shall apply in India after the separation of Burma and Aden from India to probates and letters of administration granted in Burma and Aden before the date of the separation, or after that date in proceedings which were pending at that date.

"The proviso shall also apply in India after the separation of Pakistan from India to probates and letters of administration granted before the date of the separation, or after that date in proceedings pending at that date, in any of the territories which on that date constituted Pakistan."

36.14. It should be noted that section 273 empowers the court (in certain cases) to make a grant elfective beyond the lmms of the State. In order that the full beneﬁt of this wider jurisdiction of the court under section 273 may be available, it is desirable that section 241 should also be relaxed, We, therefore, recommend that suitable words excluding from section 241, the case, where an order is passed under stction 273 proviso should be added.

36.15. Thrc is some obscurity on the question whether the "attorney" (agent) should be a resident of the State. It appears, however, that the attorney may reside anywhere in India, if the grant is by the High Court.-' This interpreta- tion can be suitably codiﬁed.

36.16. In the light of the above discussion we recommend that section 241 should be revised as below;

"Z41, When any executor is absent from the State in which application is made, and there is no executor within the State willing to act letters of administration. with the will annexed may be granted to the attorney or agent of the absent executor, for the use and beneﬁt of his principal, limited until he shall obtain probate or letters of administration granted to himself.

1In7hego0rIsofCartrl,v, 28 PR. 1883.

207

/irception: Nutlting in this section applies to (1 case falling within the proviso to section 273.

[Exploitation : ll"/zere the grant is by the High Court, it is not necessary that the attorney or agent should be residing within the State, provided he resides within India."

36.17. Section 242 provides as follows :--~ Section 242.

"242. When any person to whom if present, letters of administration, with the will annexed, might be granted is 'absent from the state, letters of adminis- tration, with the will annexed, may be granted to his attorney or agent, limited as mentioned in section 24] The section needs no change.

36.18. Section 243 reads----- Section 243- "243. When a person entitled to administration in case of intestacy is absent from the State and no person equally entitled is willing to act, letters of administration may be granted to the attorney or agent of the absent person, limited as mentioned in section 24l."

The section needs no change.

36.19. Section 244 reads as follows :-- Section 244.

"244. When a minor is sole executor or 5010, residuary legatee, letters of administration with the will annexed may be granted to the legal guardian or such minor or to such other person as the Court may think ﬁt until the minor has attained his majority, at which period, and not before, probate of the will shall be granted to him."

It has been held that the expression "legal guardian", in this section, means a guardian appointed under the Guardians and Wards Act, 1980. If the natural guardian wants to apply under this section, he must first take proceedings (under the Guardians and Wards Act) to be appointed legal guardian.' If there is a legal guardian of the person of the minor and another of the property of the minor, the latter is entitled to the grant" (compare section 246, where the words "care'of his estate" are used).

A guardian appointed by the father under section 69 of the Succession Act would appear to be a "legal guardian" within the meaning of this section.

It appears desirable to codify the law on the subject, as laid down in the above decisions.

36.20. In the light of the above, the following Explanation should be Recommendation to inserted below section 244 :--- amend 5°'-'"°" 244- Explanationz In this section, "legal guardian" means a guardian of the property appointed by a person or authority having power to do so, whether within or outside India, but does not include a natural guardian."

36.21. Section 245 deals with administration during the minority of Section 245--

Several executors or several residuary legatees. An administration during R°°°"""°"d'"i°"' minority is, under the section, limited until one of the executors attains majority. It is obvious that the section deals with the case dealt with in section 244 and, is indeed, a kind of Explanation to that section. This should be brought out by adding, after the words "the grant", the words and ﬁgures "under section 244".

We recommend that section 245 should be amended accordingly.

36.22. Section 246 reads as follows :-- A Section 246.

"246. If a sole executor or a sole universal or residuary legatee, or a person who would be solely entitled to the estate of the intestate according to the '(a) Arumilli Virammrz v. ArumilliﬂSeshamma, 1931 Mad 343,

(b) In the goods of Nirojini Debi, (1907) I.L.R. 34 Cal. 706.

'Ganjasur Koer V. The Collector of Patna, I.L.R. 25 Cal. 795.

Overlapping with section 244.

Recommendation to revise section246.

Section 247» « Administration pendente lite.

Section 247 (1)-

who can apply.

208

rule for the distribution of intestates' estate applicable in the case of the deceased. is a minor or lunatic, letters of administration, with or without the will annexed, as the case may be shall be granted to the person to whom the care of his estate has been committed by competent authority, or, it' there is no such person, to such other person as the Court may think fit to appoint, for the use and beneﬁt of the minor or lunatic until he attains m(t_i0riI_r or lwmnzcs of sozmd mind, as the case may be". , 36.23. There is some overlapping between this section and section 244, as regards a minor sole executor or a minor sole residuary legatee. In section 217 of the Succession Act of 1865 (corresponding to present section 246), the word 'minor' did not occur, but the word -occured in section 33 of the Probate and Administration Act. The effect wasthat as regards persons governed by the Succession Act of 1865 in the case of intestacy, if the minor was solely entitled to the estate of the intestate, there was no provision for the grant of letters of administration to his guardian on his behalf. If the minor was the sole executor or sole universal or residuary legatee, grant could be made under section 215 (present section 244). The insertion of the word "minor" in section 246 (in l925) was intended to supply this omission. But it has created overlapping' so far as the minor sole' executor or minor sale residuary legatee is concerned, as section 244 has already provided for this contingency. So far, therefore, as sec- tion 246 is concerned the word "minor" should be read as conﬁned to the case of intestacy.

36.24. In our opinion, it is desirable to amend section 246 to bring out that point.

To carry out the abo\'c object. we recommend that section 246 should be revised as follows :

"246, lf~--4 ta) a sole cit-cuttn' or a sole universal or residuary legatee is a lunatic. or (I7) a pcl's('El \\/lzo would be solely entitled to the estate of the intestate, according to the rule for the distribution of intestates' estate applicable in the ease of the (leceascd, is a minor or a lunatic, letters of adinir"sttation, with or without the will annexed as the case may be, shall lk granted to the. person to whom the care of his estate has been committed by competent authority, or, if there is no such person, to such other person as the Court may think ﬁt to appoint, for the use and benefit of the minor or lunatic until he attains majority or becomes of sound mind. as the Case may be".

llll. (Sran-ts for special purposes.

36.25. Ac'/m1'nistratimt pemlente lite is dealt with in section 247, which reads as follows :----~ "247. Pending any suit touching the validity of the will of a deceased or for obtaining or revoking any probate or any grant of letters of administration. the Court may appoint an administrator of the estate of such deceased person. who shall have all the rights and powers of a general administra- tor, other than the right of distributing such estate, and every such adminis- trator shall be subject to the immediate control of the court and shall act under its direction". -

36.26. A question that requires to be considered is--Who can make an application under this section ? In a Calcutta case', it was held that an applcation under section 247 can be made only by the parties to the suit. According to the 'See Paruck, Sticcession'Act,"Comrnentary on section 246. 2Nirod \'. C/1amtkarz'm', (I392) 19 CW.N. 205.

209

English practice, however, such an application may be made by any person interested in the estate, and even by a creditor of the deceased.' 36.27. The appointment: of an administrator pendente lite does not follow Appointment-

as a matter of course whenever litigation is pending. Before granting administra- tion pcndrzle lite, the Court must be satisﬁed as to the necessity of such _'an administrator. The applicant is required to show, for instance, that it is neces- sary fon the preservation of the estate, for receiving rents, interest or dividends on shares, and that no ﬁt and proper person is in a position to discharge these offices". » 36.28. Having considered the present position, we are of the view that it is Recommendation desirable to amend the section so as to provide that an application for the to amend Section appointment of an administrator under the section can be made by any person 247- interested in the estate, and even by a creditor of the deceased. Such a widening of the section is likely to increase the utility of the section, in cases where the parties to the suit do not take any initiativeﬂ An Explanation to the above effect can be added. We recommend accordingly.

36.29. Section 248 reads---- » section 24g_ "248, If an executor is appointed for any limited purpose speciﬁed in the will, the probate shall be limited to that purpose, and if he should appoint an attorney or agent to take administration on his behalf, the letters of administration, with the will annexed. shall be limited accordingly".

The section needs no change.

36.30. Section 249 reads----

"249. If an executor appointed generally gives an authority', to an attorney or agent to prove a will on his behalf, and the authority is limited to a particular purpose, the letters of administration, with the will annexed, shall be limited accordingly". ' ' Section 249.

This section also needs no change.

36.31. Section 250 reads----

"250. Where a person dies, leaving property of which he was the sole of surviving trustee, or in which he had no beneﬁcial interest on his own account, and leaves no general representative, or one who is unable or unwilling to act as such, letters of administration, limited to such property may be granted to the beneﬁciary, or to some other person on his behalf".

Section 250."

The section needs ngchange.

36.32. Section 251 reads--~ Esecﬁon 25,_ "251. When it is necessary that the representative of a person deceased be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nomnee of a party in such suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in the said course or suit, and until a ﬁnal decree shall be made therein and caried into com- plete execution".

The section needs no change.

i T ichborne v. T ichborne, L.R.l /l.P.& D. 730. cited by Mitra, commentary on the Succession Act under section 247.

5'(a) Horrel V. Wirts, (1866) LP. & D. 103.

(h) Bhuban Mo/rim' v. Kiranbala, 13 C.L.J. 47 ; 9 I.C. 215. 216 (Cal).

(d) Pandurang v. Dwarkadas, A.I.R. 1933 Born. 342, 344.

(e) In the Estate of Dav, (1940) 2 All E.R. 544.

'See In the Goods of Borendra Nat/1, A.I.R. 1952 Cal. 418. 'Compare the English practice in para 36 .26, supra.

Section 252.

Section 253.

Section 254.

Section 255.

. Section 256.

Case sect ion.

law on' the 210 36.33. Section 252 reads----

"252. If, at the expiration of twelve months from the date of any probate or letters of administration, the executor or administrator to whom the same has been granted is abent from the State within which the Court which has granted the probate or letters of administration exercises jurisdic-- tion, the Court may grant, to any person whom it may think ﬁt, letters of administration limited to t.he purpose of becoming and being made' a party to a suit to be brought against the executor, and carrying the decree which may be made therein into etfect".

The section needs no change.

36.34. Section 253 reads----

"253. ln any casein which it appears necesary for preserving the property of a deceased person, the court within whose jurisdiction any of the property is situate may grant to any person. whom such Court may think ﬁt. letters of administration limited to the collection and preservation of the property of the deceased and to the giving of discharges for debts due to his estate. subject to the directions of the Court". ' The section needs no change.

36.35. Section 254 reads----

"254. (1) When a person has died intestate, or leaving a will of which there is no execlttor \villEn_u and competent to act or where the executor is, at the time of the death of such; person, resident out of the State, and it appears to the ("ourt to be necessary or convenient to appoint some person to administer the estate or any part thereof, other than the person who, in ordinary ClI'CLln1Slt1llCL'S. would be entitled to a grant of administration, i the Court may. in its discretion, having regard to consanguinity, amount of interest. the szucty of the estate and probability that it will be properly il(|rl'llI1lStL'l'C(.l. ztppoittt such person as it thinks ﬁt to be administrator.

"(2) In e\.'ery such case letters of administration may be limited or not as the Court thinks tit."

The section needs no change.

36.36. Section 255 reads--

"255. Whenever the nature of the case requires that an exception be made, probate of a will. or letters of administration with the will annexed, shall be granted subject to such exception."

36.37. Section 256 provides that whenever the nature of the case requires that an exception be made, letters of administration shall be granted subject to such exception 36.38. An important point concerning sections 255-256 arises out of a Madras case.' In that case, the appellant, the widow of one S.R., had applied for grant of letters of administration in respect of a bank account and death beneﬁt payable by a company (apparently, the employer of the deceased). S.R. had died at Madras, leaving a will dated 14~l-1964. He had an account in the United Commercial Bank jointly with the appellant (the wife) and her daughter. The respondent claimed to be the senior wife of the deceased and contended that the assets left by the deceased amounted to much more than the value mentioned in the affidavit of assets. She contended that it was necessary that all the assets of the deceased should be valued and brought into the aﬁidavit of assest of the deceased, for granting letters of administration.

. 1HapzInab Annat/mi Rangqch(rr1' v. R. A/rcznt/talakslznzi Rangaclzari, 1975 A:Madrasv'_i42 (Veeraswami CJ. and Natarajan J.).

211

The High Court, dealing with this contention, first noted that the general rule is that the entire assets should be disclosed in the alﬁdavit of assets', which will c-ount for \'aluati0n for the purposes of court fees. But where it is a case of joint account in 21 bank and the amount is payable to either or survivor, the nature of the case requires that it should be treated as an exception to the above rule that the entirety of the assets of the deceased should be disclosed in the aﬂidavit of assets. The High Court also held that it might not even be necessary to obtain letters of administration. for there was, in this case, little to administer, and the wife's right to draw the amount could be independently of the will.

However, since the bank had been insisting on letters of administration, the High Court held that the application should be granted, the case being treated as one falling within the "exception" clause in section 255.

36.39. 'the facts of this case, when examined closely, disclose need for Recommendation amending the law. It, in such cases, obtaining letters of administration becomes {is 'O 30"" a°C°"D* necessary by reason ol the practice of banks, should it not be covered specifically "'aba--"k' in section 255 (and also in section 256)?

36.40. As the language of section 255 stahds at present, the proposition that Recommendation the grant can be limited to a particular item is not so evident from the section. 1°;-'t'm¢"d 5€°"°"

It appears to be desirable to amend? section 255, so as to make this clear. The "

object could he achieved by adding the following exception to section 253 :

l:',~.c'eptiot1 to /we atlrlerl to sec'II'on 255.

Exception------Notwithstanding anything cotztuined in this section or in section 256, where moneys have been deposited in joint account in a bank and the cmmmir thereof is payabie to either or any survivor of the persons ctepositing the money, the application for letters of adrninistration in respect of. those m0ne_\'.r may, on the death of either or any of touch persons, be made by the sm'\~."vor.

V. Grants of the rest 36.41. This takes us to section 257, which provides that whenever a grant, section 257_ with exception, of probate or of letters of administration with Or without the will annexed, has been made, the person entitled to probate or administration of the remainder of the deceased's estate may take a grant of probate or letters of administration, as the case be. of the rest of the deceased's estate. The section has created no serious problems and may be left as it is.

W. Grants of effects unadministered.

36.42. Section 258 provides that if an executor to whom probate has been Section 258. granted has died, leaving a part of the testator's estate unadministered, a new l'Cpl'C.SLlll.2lll\"C may be appointed for the purpose of administering such part of the estate. The section does not appear to need any change, 36.43. in the next section 259, it is provided that in granting letters of an Section 259. estate not fully administered, the Court shall be guided by the same rules as apply to original grants, and shall grant letters of administration to those persons only to whom original grants might have been made.

The section needs no change.

36.44. Section 260 deals with the situation where at limited grant has Section 260.

expired by etliux of time, or by the happening of the event of contingency on which it was limited. If there is still some part of the deceased's estate unadrr_1inis- tered, then letters of administration shall, according to the section, be granted to those persons to whom original grants might have been made. The section needs no change, having created no diﬁiculties, 'T.K. Pa.t'rhasarthy Nnidu in re : A.l.R. 1955 Mad. 411 was referred to.

'-'Point is relevant to section 256 also, which may need consequential changes.

Scope.

Section 261.

Section 262.

Section 263----« Revocation or annu-

lment for Just cause.

\i 21 I ('HAP'l'liR 37 ALTERATION AND Rlj\'0CAT!UZ\' 01? GRANIS : SECTIONS 261--263 37.1. Alteration and rcxocafon of grants form the subject matter of sections 261 to 263, which do not need any introductory comments. _ 37.2. Section.2ol provides that errors in names and descriptions, or in setting forth the time and place of the deceased's death, or the purpose in a limited grant, may be rectified by the Court, and the grant of probate or letters of adinmistration may be altered and amended accordingly, The section needs no change.

37.3. Section 262 provides that if, after the grant of administration with the Wlll annexed, a codicil is discovered, it may be added to the grant on due proof and identiﬁcation. an(l the grant may be altered and amended accordingly.

The section needs no change.

374. Under section 263 the grant of-probate or letters of administration may be revoked or annulled for Just. cause. The Explanation provides that just cause shall be deemed to exist where----

(a) the proceedings to obtain the grant were defective in substance; or

(b) the grant was obtained fraudulently by making a false suggestion or by concealing from the Court something material to the case; or the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or '

(c)

(d) the grant has become useless and inoperative through circumstances; or

(e) the person to whom the grant was made has wilfully and without reason-

able cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter Vll of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.

The

(i)

(ii)

(iii)

(iv) following illustrations are appended:

the Court by which the grant was made had no jurisdiction;

the grant was made without citing parties who Ought to have been cited:

the will of which probate was obtained was forged or revoked;

A,'obtained letters of administration to the estate of B, as his widow. but it has since transpired that she was never married to him;

A has taken administration to the estate of B, as if he had died intestate,

(v) but :1 will has since been discovered;

(vi) since probate was granted, a later will has been discovered;

(vii) since probate was granted, a codicil has been discovered which revok-

ed or adds to the appointment of executors under the will;

(viii) the person to whom probate was, or letters of administration were, granted, has subsequently become of unsound mind.

It may be stated with reference to the second illustration that the absence of citation on a person who' was interested, being a transferee from the heirs at law, would be a defect of substance which is "just cause" within the meaning of section 263. l'€>:planation.

The case may be different, where the parties themselves have led evidence? '"

The section seems to need no change, as no serious diﬂiculties have arisen in its application.

'Bmzwari La] v. 7 Kn. Islisrzziz Brit', AW.I.R. 1973 M.P. 65, 70, para 7. 7 "Ba! Goviml V. S/zri Ranz, A.I.R. l947 All. 372.

3/lnil Be/iari V. Iatika Bala, A.I.R. 1955 SC. 566.

213

('HAPTER 3% I'RA('T'l'l(7I<' IN GRANTING AND REVOKING PROBATES AND LETTERS 38.1 OF ADMINISTRATION (SECTIONS 264 T0 302) . Practice in granting and revoking pr0b21tC$ and letters of administra- Scope.

tion being a matter of some detail, occupies about 40 sections of the Act----sections 264 to 302. The sections could be grouped as under :

I. Jurisdiction and connected matters.

2('r1-.

'Z65 £66.

_/73.

274- 275 Jurisdiction of District Judge in granting and revoking probatcs, etc. Power to appoint,De':cgatc of District Judge to deal with non--conten~ tious cases.

District Judge's power as to grant of probate and administration.

.District Judge may order person to produce testamentary papers.

.Proccedings of District Judge's Court in relation to probate and administration.

.'.\'hen and how District Judge to interfere for protection of property. .When probate or administration may be granted by District Judge.

.Disposal of application made to Judge of district in which deceased had no fixed abode.

.Probate and letters of administration may be granted by Delegate.

Conclusiveness of probate or letters of administration.

. Transmission to High Courts of certiﬁcate of grants under proviso to section 273.

. Conclusiveness of application for probate or administration if properly made and veriﬁed.

ll. The petition and immediate steps thereon Ill.

276.

277.

278.

279.

280. .281.

282. 28

m Petition for probate.

In what cases translation of will to be annexed to petition. Veriﬁcation of translation by person other than Court translator. Petition for letters of administration.

or letters of Addition to statement in petition. etc., for probate administration in certain cases'.

Petition for probate etc to be signed and veriﬁed. Veriﬁcation of petition for probate. by one ﬁtness to will.

Punishment for -false averinent in petition or declaration.

.Procedure for hearing Powers of District Judge.

.Caveats against grant of probate or administration. Form of caveat.

.At'ter entry of a caveat, no proceeding taken on petition until after notice to caveator.

.District Delegate when not to grant probate or administration.

.Power to transmit statement to District Judge in doubtful cases, where no contention.

Section 264~~ Jurisdiction of Dis-

trict judge in grant-

ing and revoking probzttes, etc. Section 2o:'~« District Delegates' , Recommendation.

Section 266 istrict Judgeis Wcrs as to grant probate and dministration.

214

IV: Disposal of Petitions.

288. Procedure where there is cotltcntiun, or District Delegate thinks probate or letters of adiniiiisrrxition should be refused in his court.

V. Grant of Prohzttc.

VI.

289. Grant of probate to be under seal of Court.

290. Grant of letters of administration to be under seal of Court.

291. Administration--bond.

292. Assignment of administration-bond.

293. Time for grant of probate and administration, H

294.Filing of original wills of which probate or administration with will annexed granted.

205. Procedure in contentious cases.

296. Surrender or revoked probate or letters of administration.

297. Payment to executor or administrator before probate or administration revoked.

Miscellaneous.

?.98.Power to refuse letters of administration.

299. Appeals from orders of District Judge.

300. Concurrent jurisdiction of High Court.

30!. Removal of executor or administrator and provision for successor.

302. Directions to executor or administrator, I. Jurisdiction and connected matters.

38.2. Section 264 reads----

"264(l) The District Judge shall have jurisdiction in granting and revolo ing probates and letters of atlnmjstration in all cases within his distrct. (2) Except in cases to which section 57 applies, no Court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, shall.

where the deceased is a Hindu, Muhammadan, Budhist, Sikh or Iain or an exempted person, receive applications for probate or letters of administra- tion until the State Government has, by a notiﬁcation in the olﬁcial Gazette. authorised it so to do."

The section needs no Change.

38.3. Section 265 reads----

"265(l) T he High Court may appoint such judicial oﬂicers within any dis- trict as it thinks fit to act for the District Judge as Delegates to grant probate and letters of administration in non-contentious cases, within such local limits as it may prescribe;

Provided that, in the case of High Courts not established by Royal Charter. such appointment shall not be without previous sanction of the State Govern- ment.

(2) Persons so appointed shall be called "District Delegates."

We are ol the view that the proviso to sub--section(l) should be deleted as unnecessary at the present day. and recommend its deletion.

38.4. Section 266 I'€1l(lS-----

"266. The District Judge shall have the like powers and authority in relation to the granting of probate and letters of adrnirtistration and all matters 215 c0nnccte_d lll(:l'€\'vlill. as are by lan vested in him in relation to any civil suit as proceedings pending in his Court". ' The section needs no change.

3-8.5. Section 2.(S'»/i reatl.\--~ Section 237.

"'if§'.ecti'r)1i4 District Judge may order any pe1'son to produce and oring into Court any paper or writing, being or purporting to be testamentary, which may be shown to be in the posscsson or under the control of such person.

(2) ll' it is not shown that any such paper or writing is in the possession Or under the control of such person. but there is reason to believe that he has the knowledge of any such paper or writing, the Court may direct such person to attend for the purpose of being examined respecting the same.

(3) Such person shall be bound to answer truly such qeustions as may be put to him by_ the Court, and, if sopordered, to produce and bring in such pa er or writing, and shall be subject to the like punishment under the n ian Penal Code, in case of default in not attending or in not answering such questions or not bringing in such paper or writing, as he would have been subject to in case he had been a. party to a suit and had made such default;

(4) The costs of the proceeding shall be in the discretion of the Judge".

We have no comments on the section.

38.6. Section 268 provides that the proceedings of the Court of the Dis- Section 268. trict Jud e in relation to the granting of probate and letters of administration shall, save as 'ereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908.

We have no comments on the section..

387. Section 269 reads----

"269(l) Until probate is granted of the will of a deceased person, or an administrator of his estate is constituted, the District Judge, with-' in whose jurisdiction any part of the property of the deceased person is situate, is authorised and required to interfere for the protection of such property at the instance of any person claiming to be interested therein, and in all other cases where the Judge considers that the property incurs any risk of loss or damage; and for that purpose, if he thinks fit. to appoint an officer to take and keep possession of the property.

Section Q69.

(2) This section shall not apply when the -deceased is a Hindu, Moham-

madan, Budhist, Sikh or Jain or an exempted person. nor shall it apply to any part of the property of an Indian Christian who has died intestate".

We have no comments on the section.

I 38.8. Section 270 provides that probate of the will or letters of administra- Section 270--When i tion to the estate of deceased person may be granted by a District Judge under Pf°1.'3'° °' 3dmi"i5' the seal of his Court, "if it appears by a petition, veriﬁed as hereinafter provided, tgrr';',?:d bymgisnict of the person applying for the same, that the testator or intestate, as the case may Judge.

be, at the time of his decease, had a ﬁxed place of abode, or any property, movable, or immovable within the jurisdiction of the Judge".

A similar power is conferred on the High Court acting on the original side, since "District Judge", as deﬁned in the Act, includes such a High Court.

38.9. It appears that section 270 would cover a case even where the Person not domici- testator or intestate was a person not domiciled in Indz'a--say, a foreign national-- led in India- who left property most of which was outside India, while leaving some movable property in India. "Of course, section 270 is not concerned with the question dealt with in section 4 and 5,--the law applicable regarding succession. The section is is".=;tton 2 (bb): C Section 270- Assets in India.

Origin.

English cases.

Section 271.

Section 272-----Pro-

bate and letters of administration may be granted by delegate.

216

concerned only with the jurisdiction of lndian courts. it would appear----though there is no case law on this poii1t----that, in so far as a n0n--domiciled person has left property in India, the section would apply. The law applicable will, of course, be governed by sections 4--5. .

For the present, and, in the absence of case law raising any concrete questions. we have no further comments 0 n this point.

38.10. The foundation of the jurisdiction of a Court to grant probate or letters of administration is that there is property of the deceased to be administered with the country and section 270 does not, in any way, provide an alternative basis for a grant'.

Thus, the section cannot be understood as dispensing w ith the necessity of existence of Indian assets before probate, etc. can issue from an Indian Court.

38.11. Section 270 has its origin in s 1857 (20 and 2] Vict. C. 77).

ection 46 of the Court of Probate Act.

38.12. English decisions from the earliest time assets as a condition precedent to an English grant. F well held!»-

have insisted on English or example Sir C. Cress-

"It does not appear from the affidavits that the deceased left any property in this country. Unless he did so, there is nothing upon which the grant asked for would operate and I should have no jurisdiction to decree letters of administration to be granted".

Sir J.P. Wilde observed in another case5 2 "It is not one of the functions of this Court to determine as an abstract qustion who is the proper representative of a deceased person. The foundation of the jurisdiction of this Court is, that there is personal pro~ perty of the deceased to be distributed within its jurisdiction. In this case the deceased has no property, within this country, and the Court has, therefore, no jurisdiction".

Other decisions to the same effect are 'In Goods of Pittock' where, administra- tion was refused because the deceased left no personal pr_ope1'ty in England and---- In Goods of Coode' where it was held that a will disposing only of property in a foreign country was not entitled to an English probate.

It should, however, be the existence of assets in In one is enough.

pointed out that what section 270 requires is not dia in every case. Two criteria are given, of which

38.l3. This takes us to section 271, which reads--

"271. When the application is made to the judge of a district in which the deceased had no ﬁxed abode at the time of his death, it shall be in the discretion'ot' the Judge to refuse the application if in his judgement it could be disposed of more justly or conveniently in another' district, or, where the application is for letters of administration, to grant them absolutely, or limited to the property within his own jurisdiction".

The secti_on needs no change.

38.14. Section 272 reads.---

"Z72. Probate iand letters of that purpose to any District Dele there is no contention, admﬁnistration may, upon application for gate, be granted by him in any case in which if it appears by petition, veriﬁed as hereinafter 'I(alyanikut!y v. Gourikurry, A.I.R. 1953 T.C. 352, para 3 (Koshi CJ. and M.S. 2E1/(INS V. Barre/, (1859) 4 Sw. & Tr. P. I85, 154 BR. 1487.

'The Goods ofﬂamm/1 Tucker, (l 864) 3 Sw. & Tr. 585, 164 FR I403.

'In Gaoclr of Fir/ork. (I863) 32 .l.L.P. M & A 157.

'In Goods 0] C'a(>(l'e, '_'(l867) l P & I). 449.

Menon 1.).

217

provided, that the téstator or intestate, as the case may be, at the time of his . . . . . . ,, death had a ﬁxed place of abode within the ]l1I'IS(llCl£1011 of such Delegate . No changes are required in the section.

38.55. Section 373 reads as undcr---- 56Cl_i0I1 273-509' clusiveness of. pro'-_ "273. Probate or letters of administration shall have eticct over all theggle. 9' l°."°"5 ° . . , _ ministration.

property and -estate, movable or immovable, ot the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons ltt)ltliD;1 property which belongs to him, and shall aﬂord full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been grant~-silt Provided that probntcs and letters of adniinistration gr'<ll1t€tlv~---- (at by a High Court, or

(b) lﬂjy a District Judge, where the deceased at the time of his death had alfet:tcd_ beyond the limits of the State does not exceed ten thousand and such Judge certiﬁes that the value of the property and estate effected, beyond the limits of the State does not exceed ten thousand rupees, shall. unless otherwise directed by the grant. have like cllfcct throughout the other States.

"'l'hc proviso to this section shall apply in lndiu alter the separation ot Burma and Aden from India to probates and letters of administration granted in Burma and Aden before the date of the separation, or after that date in proceedings which were pending at that date.

'The proviso shall apply in India after the separation of Pakistan from India to probate and letters of administration granted before the date of the separation, or alter the date in proceedings pending at that date, in any of the territories which on that date constituted Pakistan".

The amount of ten thousand rupees should now be increased to rupees titty thousand in View of fall in the value of the rupee. We recommend accordingly.

38.16. Section 274 reads as under :----~ Séction 274----Tran- smission to High ".274 (1) Where probate or letters of administration has or have been C°""5 °l°°"lﬁCa'° granted by a High Court or District Judge with the effect referred. to in $1-fSg','g'St:c','?0':fE§'_§'°' the pioviso to section 273. the High Court or District Judge shall send a certiﬁcate thereof to the following courts, namely:---- (it) when the grant has l'-Ccn l';l'.l(.lC by a High Court. to each of the other Courts:

(b) when the grant has been made by a District Judge, to the High Court to which such District Judge is subordinate and to each of the other High Courts.

12) Every certiﬁcate referred to in sub--section(1) shall 'be made as early as circumstances admit in the form set forth in Schedule IV. and such certiﬁcate shall be ﬁled by the High Court receiving the same.

(3) Where any portion of the assests has been stated by the petitioner, as hereinafter provided in sections 276 and 278, to be situate within the jurisdiction of a District fudge in another State. the Court required to send the certiﬁcate referred to in sub section (1) shall send a copy thereof to such District fudge. and such copy shall be filed by the District Judge, receiving the same." .

II. The petition and immediate steps thereon.

38.17. Section 2'75 reads---- 5"""°" 275-

".'375. The application for probate or letters of adrninistration, if made and \'Crilied in the manner hereinafter provided. shall be conclusive for Section 276.

Section 277.

Section 278---- Pet-

ition for letters of administration.

218

the purpose of authorising the grant of probate or administration; and no such grant shall be impeached by reason only that the testator q'r,intestatc had _no ﬁxed place of abode or no property within the district at the time hthisvvdeath, unless by a proceeding to revoke the grant it obtained by {l tiaud upon the Court "

The section needs no change.

38.18. Section 276 reads--

"27()tl) Application for probate or for letters of administration, with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Courts in which the application is made, with the will or, in the cases mentioned in sections 237, 238 and 239 a copy, draft, or statement of the contents thereof, annexed, and stating--

ta) the time of the tcstatofs death.

(b) that the writing annexed is his last will and testament.

(c) that it was duly executed, .

(cl) the amount of assets which are likely to come the peititionerls hands, and (Se) when the application is for probate, that the petitioner is the executor named in the will, ( 2) In addition to these particulars, the petition shall further state,----

(a) when the application is to the District Judge, that the deceased at the time of his death had a ﬁxed place of abode, or had some pro» petty, situate within the jurisdiction of the Judge; and

(b) when the application is to a District Delegate, that the deceased at the time of his death had a ﬁxed place of abode within the jurisdiction of such Delegate. ' (3) Where the application is to the District Judge and any portion of the assests likely to come to the, petitioner's hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judge Within whose jurisdiction such assets are situate." .

Ihe section needs no change.

39.18. Section 277 reads--

"277. In cases wherein the will, copy or draft, is written in any language other than English or than that in ordinary use in proceedings before the Court. there shall be a translation thereof annexed» to the petition by a translator of the Court, if the language be one for which a translator is_appointed;

or, if the will, copy or draft, is in any other language, then by any person _ competent to translate the same, in which case such translation shall be veriﬁed by that person in the following manner, namely 2-:

"I (A.B.) do declare that I read and perfectly understand the' language and character of the original and that the above is a true and accurate translation thereof." ~ The section needs no change.

38.20. Section 278 reads----

"278 (l) Application for letters of administration shall be made by petition distinctly written as aforesaid and stating--- - - . . ' 4- .

(a) the time and place of the deceased's death: . ,

(b) the family or other relatives of the deceased, and their'respective residences; ' 1 45 or I 860.

219

(c) the right in which the petitioner claims;

(ti) the amount of assets which are likely to come to the petitioner's hands;

(c) When the application is to a District Judge, that the deceased at the time of his death had a ﬁxed place of abode, or had some pro-

perty, situate within the jurisdiction of the Judge; and,

(i) when the application is to a District Delegate, that the deceased at the time of his death had a ﬁxed place of abode within the jurisdiction of ,such Delegate.

(2) Where the application is to the District Judge and any portion of the assets likey to come to the petitioner's hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judge within whose jurisdiction such assets are situate."

The section needs no change.

38.21. Section 279 reads--~ "279. (1) Every person applying to any'ol' the courts ment_io_ned in the Semen 2-,9_pmi_ proviso to section 273 for probate of a will or letters of administration of cum; to bcentcfgd an estate intended to have effect throughout India shall state in his peti-in application 1105361' tion, in addition to the matters respectively required by section 276 and '°°"°"3'3 P'°""°' section 278, that to the best of his belief no application has been made to any other court for a probate of the same estate, intended to have such effect as last aforesaid. ' 01', where any such application has been made, the court to which it was made, the person or persons by whom it was made and proceedings (if any) had thereon.

(2) The Court to which any such application is made under the proviso to section 273 may, if it thinks ﬁt, reject the same."

The section needs no change.

38.22. Section 280 provides that the petition for probate or letters of Section 280.' administration shall in all cases be subscribed by the petitioner and his pleader, if any, and shall be veriﬁed by the petitioner in the manner laid down in the section.

The section needs no change.

38.23. Section 281 reads--- Veriﬁcation p ' "281. Where the application is for probate, the petition shall also be veriﬁed his: Eating"! to E by at least one of the witnesses to the will (when procurable) in the manner .

or to the effect following, namely :-

"I (C.D.), one of the witnesses to the last will and testament of the testator mentioned in the above petition, declare that I was present and saw the said testator affix his signature (or mark) thereto (or that the said tcstator acknowledged the writing annexed to the above petition to be his last will and testament in my presence)". ' The section needs no change.

38.24. Section 282 reads--- - S,c,;°,, m_

"282. If any petition or declaration which is hereby required to be veriﬁed contains any averment which the person making the veriﬁcation knows or believes to be false, such person shall be deemed to have committed an offence under section 193 of the Indian Penal Code."

The section needs no change.

38.25. Section 283 reads-- Section 283.

"283. (1) In all cases the District Judge or District Delegate may, if he thinks proper,----

85-L/B(D)l44MofLJ&CA----l 5 Meaning ot' "inte-

rest."

Section 284-~ Form of Caveat.

'Section 285.

- Section 286.

220

(Va) examine the petitioner in person. upon oath

(b) require further evidence of the execution of the will or the right of the petitioner to the letters of administration, as the case may be;

lc) issiue citations calling 'upon all persons claiming Jto have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.

(2) The citation shall be ﬁxed up in some conspicuous part of the court- house, and also in the otiice of the Collector of the district an otherwise « published or made known in such manner as the Judge or District Delegate issuing the same may direct.

(3) Where any portion of the assets has been stated by the petitioner to be situate within the jurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy of the citation to be sent to such other District Judge, who shall publish the same in the same manner as ii' it were citation issued by himself, and shall certify such publication to the District Judge who issued the citation."

38.26. The "interest" in the estate, mentioned in section 283(l)(c), is only that interest which, by citation, a person called upon may claim to have in the estate of the deceased. It is not the interest which the deceased did not own, but which the claimant, coniing into the picture by citation, claims to be vested iii himself .The title of the testator to the property which is the subject-matter of disposition is entirely and necessarily outside the scope of probate proceedings; that question will have to be settled separately. By citation, a party cannot be allowed to convert a probate proceeding into a suit for resolving title. This is the gist of a Madras jtitlgineim The section needs no cliunge.

38.27. Section 284 i't'ii(is~--

"284 (1) Caveats ag_=aiiie.t the giant of probate or administration may be lodged with the I)§sti'ict Judge or a Disrict Delegate.

(2) linmediately on iiiiy caveat being lodged with any District Delegate.

he shall send copy tlicrcnt to the District Judge.

(3) Immediately on a caveat being entered with the District Judge, a copy thereof shall be given to the District Delegate, if any, within whose juris- diction it is alleged the deceased had a ﬁxed place of abode at the time of his death, and to any other Judge or District Delegate to whom it may appear to the District Judge expedient to transmit the same.

(4) The caveat shall be made as nearly as circumstances admit in the form set forth in Schedule V". ' The section iiqc-;I.s no change.

38.28. Section 285 reads-

"285. No proceeding shall be taken on a petition for probate or letters of administration after a caveat against the grant thereof has been entered with the Judge or District Delegate to whom the application has been made or notice has been given of its entry with some Other Delegate, until after such notice to the person by whom the same has been entered as the court may think reasonable".

The section needs no change.

38.29. Section 286 l'C1lLlS--~ ".286. A District _Deleg_atc shall not grant probate or letters of administra- tion in any case in which there is contention as to the grant, or in which 'In the -' .\'I"'05I'It1/IIIII. A.l-R- 1975 Mad. 130. overruling ./(rm Kimmr v. Rammmlmm, A.l.R. 197?. Mad. 2|? 2 (1972) l M.l...l. 4.

221

it otherwise. appears to him that probate or letters of administration ought not to be granted in his Court.

E.'([)[(Iil(lll'()il~--3'COi1IL)l1l:0ll" means the appearance of any one in person, or by his recognised agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding."

The section needs no change.

38,30. Section 287 reads€-- Scctign 2g7_ "287. In every case in which there is no contention, but it appears to the District Delegate doubtful whether the probate or letters of administration shguld or should not be granted, or when any question arises in relation to the grant, or application for the grant, of any probate or letters_ of administration, the District Delegate may, if he thinks proper, transmit a statement of the matter in question to the District Judge, who may direct the District Delegate to proceed in the matter of the application, according to such instructions as to the Judge may seem necessary, or may forbid any further proceeding by the District Delegate in relation to the matter of such application, leaving the party applying for the grant in question to make application to the Judge."

T he section needs no change, having raised no problems, JV. Disposal of Petition 38.31. Section 288 provides that in every case in which there is contention, Section 233, or the District Delegate is of opinion that the probate. or letters of administration ' should be refused in his court, the petition, with any documents which may have been ﬁled therewith, shall be returned to the person by whom the applica- tion was made, in order that the same may be presented to the District Judge unless the District Delegate thinks it necessary, for the purpose of justice, to impound the same, which he is hereby authorised to do, and, in that case, the same shall be sent by him to the District Judge.

We have no comments on the section.

V. Grant of Probate.

38.32. Section 289 provides that when it appears to the District Judge or section 239, District Delegate that probate of a will should be granted, he shall grant the same under the seal of his Court in the form set forth in Schedule VI. The section needs no change, having created no problems.

38.33. According to section 290 when it appears to the District Judge or swam 2"

District Delegate that letters of administration to the estate of a person deceased, with or without a copy of the will annexed, should be granted, he shall grant the same under the seal of his Court in the form set forth in Schedule VI .

The section needs no change.

38.34. Section 291 reads as under------ ' semen 291_ "291. (1) Every person to whom any grant of letters of administration, ',§,",',",;'_""""'°"

other than a grant under section 241, is committed shall give a bond to the District Judge with one or more surety or surities, engaging for the due collection, getting in, _and administering the estate of the deceased, which bond shall be in such form as the Judge may, by general or special order, direct.

(2) When the deceased was a Hindu, Muhammadan, Bhudhist, Sikh or Jaina or an exempted person--

(a) the exception made by sub-section (1) in respect of a grant under section 241 shall not operate;

(b) the District Judge may demand a like bond from any person to whom probate is granted". _ 222 _ Need for giving 38.35. As the section stands at present, there is no discretion given to d'5°"°"°" l° °'""" the court to dispense with the taking of the bond. If sub-section (1) applies. then the only matter in respect of which the court has a discretion is as regards the amount of the bond. Now. cases do arise in practice where a bond might become an idle forma1ity--for example, where the applicant for the grant of letters of administration is the sole legatee or the sole heir. Under the present section, even in the case of a sole legatee, the only matter in the direction of the court is the amount of the bond.' But subject to the above discretion and apart from cases speciﬁcally execluded by statute," the provision as to security in sub- section (1) is mandatory.

Rationale for taking 38.36. Security is required for guarding against possible malpractices by the SGCUTW b°"d- grantee. If there is reasonable protection against a malpractice arising front the special circumstances of the case, the taking on an administration bond is an unnecessary formality. It may even cause hardship. For example, the conditions imposed or the amount ﬁxed may make it impracticable for the applicant to fumish the security demanded and consequently no letters of administration can be taken out. In such circumstances the safety of the estate may be seriously imperilled if letters of administration are not granted?

38.37. It may be noted that in England, while a bond is generally taken from an administrator, the court has a discretion to dispense with sureties by reason of special circumstances. For example, where all the debts had been paid and the persons applying were entitled to the whole of the residue, sureties were dispensed with.' Againf where the applicant had no means, surities were dispensed with, to enable the applicant (widow of the deceased) to carry on the business of the deceased.

Englishlaw.

Need of giving dis- 38.38. On u catclui et.ttsittct'atioi1, of the matter, it seems to us that the °1'°"°" t°'h° °°'"" Court should be given a discretion to dispense with the taking of the administra- tion bond or with the need for sureties in the following cases :--

(i) where the person to whom the grant is to be made is" a sole legat'ee.= or Z! sole heir. or

(ii) where, for reasons to be recorded, the Court in the circumstance of the case thinks it proper to dispense with the bond or sureties.' History of 5ut,.5,,c- 38,39. As to sub-section (2) of section 291, its history is of interest. In tion (2). the case of probate, a bond can he demanded only from the special classes of persons mentioned in sub--scction (2). The reason for the difference is thus stated in the Statement' of Objects and Reasons of the Probate and Administration Act, 1881: "The Indian Succession Act, 1865 provided for the taking of security for the due discharge of this office only from an administrator, it being considered that in the case of an executor, who was selected by the testator himself, such security can safely be dispensed with. But amongst the classes to which this Act will apply, cases will, it is apprehended, accasionally occur, in which it may be expedient to take security even from an executor and accordingly a secti0n has been inserted in the Bill amending section 256.of the seccession Act- in such a manner as to give a power to the court to require an executor to give security."

Recommendation 38.40. In the light of the above disussion. we recommend that the following 3%, ""'°"'l '°°"°" sub-section should be added in section 291 "(3) Notwithstanding anything contained in this section, the Court may dispense with the taking of a hand thereunder or with the need for sureties to .S'l(C/7 (I hand W/'l('l'('---~ l,'\/Io/tan ll/lohfni. v. Tara M0/rim', A.l.R. 1920 Cal. 733, 734.

'-'For example . the Administrators Gemerals Act, 1963. ' =*/tnn'r Chandra v. Mahrmnndbibi, 6 Cal. Law Joumal 453.

'In the goods' of Panron, (1901) Probate l88.

-'Re C'0r_\', (1903) Probate 62.

"For a draft see para 37.40, in_fi'a_.

'(Y Section 78. Probate & Administration Act, 1881 (Repealed).

223

(a) the p<,l'_5UI! to whom the grant of probate or letters 11)' tIdn1nu'.s'lr:t--

lion is to he made is fire sale Iegatee or the sole heir of the deceased, or ! b) where, jar )'¢'a.s0ns 10 be recorded, the Court in the cz'rcum.»Iamfes of the case llnluks it proper to dispense with suclz /20nd or snreties, Us the case mt.'y I,-2."

38.41. "this takes us to section 292, which provides that the court 1nay,secu'on 292.

on application made by petition and on being satisﬁed that the engagement of any such bond has not been kept, and upon such terms as to security, or provid~ ing lhatthe money received be paid into Court, or otherwise, as the Court may think lit, assign the same to some person, his executors or administrators. who shall thereupon be entitled to sue on the said bond in his or their own name or names as if the same had been originally given to him or them instead of to the Judge of the Court, and shall be entitled to recover thereon, as trustees for all persons interested, the full amount recoverable in respect of any branch thereof.

The section needs no change. having created no diﬁiculties.

38.42. Section 293 provides that no probate of a will shall be granted ~'S-cclion 293. until after the expiration of seven clear days, and no letters of administration shall be granted until after the expiration of fourteen clear (lays. from the day of the testator or intcstate's death.

This section also needs no change.

38.43. Section 294 provides that every District Delegate shall tile and Section 194« preserve all original wills, of which probate or letters of administration with the will annexed may be granted: by him, among the records of his Court, until some public registry for will is established. It further provides that the State Government shall make regulations for the preservation and inspection of the wills so ﬁled. .

T he section needs no change of substance. However, the regulation to be R¢°001m¢ndﬁli0n- made by the State Government should be published in the official Gazette and we recommend that a sub-section to that effect be added in section 294.

38.44. This takes us to section 295, It lays down that in any case before Section 295' the District Judge in which tl1€Te is contention, the proceedings shall take, as nearly as may be. the form of a regular suit, according to the provisions of the Code of Civil Procedure, l908, in which the petitioner for probate or letters of administration, as the case may he, shall be the plaintiff. and the person who has appeared to oppose the grant shall be the defendant.

The section needs no change.

38.45. Section 296 reads-- 5°°""" 296-

"296( 1) When a grant of probate or letters of administration is revoked or annulled under this Act, the person to whom the grant was made shall forthwith deliver up the probate or letters to the court which made the grant.

(2) it' such person wilt'ully and without reasonable cause omits so to deliver up the probate or letters. he shall be punishable with ﬁne which may extend to one thousand rupees, or with imprisonment for a term which may extend to tree months, or with both."

This section also needs no change.

38.46. Section 297 provides :-- 55,_.m,,1 397_ "297. When a grant of probate or letters of administration is revoked, all payments bona ﬁde made to any executor or administrator' under such grant before the revocation thereof shall, notwithstanding such revocation. be a legal discharge to the person making the same; and the executor or administrator who has acted under any such revoked grant may retain and reimburse himself in respect of any payments made by him which the Section 298.

Section 299.

I011 f'""".m;.» -'°?J£.9"' of Hishmcourt.

Section 301 Suspen-

sion and removal of private cxecutor_ Section 302--Dir-

action to executor or administrator.

22 4

person to whom probate or letters of administration may afterwards be granted might have lawfully made.

The section needs no change.

VI. Miscellaneous _38.47. According to section 298, notwithstinding anything hereinbefore contained, it shall, where the deceased was a Muhammadan, Buddhist, or exempt- ed person, or a Hindu, Sikh or Jaina to whom section 57 does not apply, be in the discretion of the court to make an order refusing, for reasons to be recorded by_ it in writing, to grant any application _for letters of administration made under this Act.

The section needs no change.

38.48. Section 299 provides that every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908, applicable to appeals. Since/_ every order is appealable, no revision is maintainable.' The section needs no change.

38.49.Section 300 reads :

"300. (1) The High Court shall have concurrent j_um'sdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge. -

(2) Except in cases to which section 57 applies, no High Court, in exercise of the concurrent jurisdiction hereby conferred over any local area beyond the limits to towns of Calcutta, Madras and Bombay_shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notiﬁcation in the Oﬂicial Gazette, autho-

rised it so to do."

The section needs no change, having raised no problems.

38.50. Section 301 reads :

"301. The High Court may, on application made to it, suspend, remove or discharge any private executor or administrator and provides for the suc- cession of another person to the oﬁice of any such executor or administrator who may cease to hold oﬂice and the vesting in such successor of any property belonging to the estate."

The section needs no change.

.9 38.5l. Section 302 reads ' "302. Where probate or letters of administration in respect of any estate has or have been granted under this Act, the High Court may, on applica- tion made to it, give to the executor or administrator any general or special directions in regard to the estate or in regard to the administration thereof."

The section needs no change.

CHAPTER 39 EXECUTORS OF THEIR OWN WRONG (SECTIONS 303 AND 304) 39.1. The special topic of "executors of their wrong" is dealt with in a separate Chapter--sections 303 and 304. Of these two sections, one defines the concept, and the other deals with the liability, of such an executor.

W1I'.}a§i}7Z£I1vfivizikzinder Kmnal:/~A.I.R. 1973 Raj 233. ' .412» 39.2. Section 303 provides that a person who interineddles with the estate §~"-W0" f3U3}',' of the deceased, or does any Other act which belongs to the otiice of executor. n5:']°V°V'::)'§g.._° "5 while the_re is no rightful executor or administrator in existence. thereby makes himself an executor of his own wrong.

There are, however, two exceptions to this general provision:

<1) lntermeddling with the goods ol' the deceased for the purpose oi' pre- serving them or providing for his funeral or for the immediate neces- sities of his lamily or property. does not make an executor of his own wrong.

(3) Dealing in the ordiiiury course of business with goods' of the deceased received from another does not make an executor of his own wrong.

illustration ti) L'.\pl'c1lllS the scope of the inain as follows 2--

"(l) A uses or gives away or sells some of the goods of the deceased, or takes them to satisfy his own debt or legacy or receives payment of the debts of the deceased. He is an executor of his own wrong."

However, if there is no notice of death. there is no intcrmeddling: Thus, in illustration (ii), A, having been appointed agent by the deceased in his lifetime to collect his debts and sell his goods, continues to do so after he has become aware of his death. He is an E'}'.CCLll0l' of his own wrong in respect of acts done after he has become aware of the death of the deceased.

The section does not seem to need any change '1 V _ , - l . . . , . _ Section 304--

39.3. Under section 304. when a pv;!.5Ull ii.»-, st; :ic.t-U in nt-come an Ljabi|_jtyofexecuto1- executor of his own wrong, he is answerable to the rightful executor or adminis-- of his own wrong. trator, or to any creditor or lcgatee of the deceased, to the extent of the assets which may have come to his hands after deducting payments made to the rightful executor or administrator, and payments made in due course of ,administra_tion.

The section needs no change.

CHAPTl:ll{ 40 POWERS OF AN EXECUTOR OR ADMINISTRATOR (SECTIONS 305 TO 315) I . Preliminary.

40.1. Sections 305 to 315 deal with powers of an executor or administrator. 59099- Although contained in an enactment dealing with succession, some of the sections in this chapter (particularly, section 306 which deal with the survival of causes of action) have a much wider interest, and really the 'draftsman, in dealing with this topic, has tntereti the realm of torts. It is well-known that the topic Of survival of causes of action has, during the last four or five decades, been the subject inatter of much legal learning, and of certain legislative develop- ments in other countries: These legislative developments remedy, to some extent, certain anomalies arising from the earlier common law rule. In India, however, the section. not having been subjected to systematic review in the past, still suffers from a serious drawback. Accordingly, it will be necessary to suggest suitable reforms in this regard. when dealing with the section 40.2. The general principle underlying the provisions in sections 305----315 General principle. is that the executor or administrator represents the deceased---~ihough, until he obtains probate or letters of administration, no right can be est:,~:~!Eshed in a court of justice. This principle is worked out in relation to several matters dealt with in this Chapter, such as :---------

(a) the. survival of causes of action : sections 305----036.

'Sectioii_2l2l and section 0213 (1).

2.2 D

(b) disposal of property and general powers of the executor or administra- tor--sections 307-325.

The executor or administrator cannot make a profit out of the office. Accordingly, sections 309----310 impose certain restrictions based on that prin~ ciple.

The rest of the sections (31 l----3l5) deal with matters of detail.

ll. Survival of Causes of Action.

Section 305---- 40.3. According to section 305, an executor or administrator has the same In respect of causes _ _ _ _ o£ action surviving power to sue in respect of all causes of action that survive the deceased, and may d°°°'5°d and d°b'S exercise the same power for the recovery of debts as the deceased had, when due at death. living.

The section needs no change.

Section 306. 40.4. Section 306 reads as under :--

"306. All demands whatsoever and all rights to prosecute or 'defend any action or special proceeding existing in favour of. or against a person at 'the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as deﬁned in the Indian Panel Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it wouldbe nugatory. _ ILLUSTRATIONS

(i) A collision takes place on a railway in consequence of some neglect or default of an official, and a passenger is severely hurt, but not so as to-cause death. He afterwards dies withogt having brought any action. The cause of section does not survive.

(ii) A sues for divorce. A dies. The cause of action does not survive to his representative.

The section relates to an important topic whose interest transcends the mere limits of "powers of an executor or Admimistijator". A number of aspects will require examination.

P°S'"°" 3" K°""* 40.5. It should be noted at the outset that in Kerala.' a State Act contains provisions, inter alia, relating to the survival of causes of action and expressly repeals section 306 by providing that that section, so far as it relates to the right of action in torts, shall cease to apply in the State of Kerala. The Act secins to re-enact an earlier Travancore Act" on the subject.

W583" °"h¢W1Xim 40.6. Consideration of section 306 of the Central Act may begin with the maxim------personal action dies with the person. Although somewhat obscure in its origin, the principle that a personal cause of action dies with the person. seems to have been linked with the criminal ﬂavour of early tort remedies' The maximum was originally introduced to prevent actions of a penal character, like trespass and its offshoots, from being brought after the death of the wrongdoer against his representatives.'--' The main reason was that the trespass was "drowned in the felony". Later, however, the maxim was applied to cases of death of the injured person, even though the reason' underlying the maximum had no application.7 'Ke3rai§1 Torts (Miscellaneous Provisions) Act, 1976 (8 of 1977), /1977) K.L.T. Journal pages 7- 9.

9Travancore Law Reform (Miscellaneous Provisions) Act (I 2 of 1124).

"Fleming, Torts (1965) page 695.

'Holdsworth H.E.L. Vol. 3. page 576.

5See also Street Torts (1977), page 407.

'Death of Wrongdoer in case of [mm] action.

7 Aydt)lfI'0'f~\' ('ummrs. v. s.s. Anicrim, (1917) A.C. as. 43, 44.

;.'27 Thus, the wide scope that the rule came to acquire was more a product of the accidents of history than of any deliberate view taken as a matter of policy.

40.7. In England, by the Law Reform (Miscellaneous Provisions) Act, Position inﬁngland 1934,' most causes of action survive on the death of a person. The relevant provision of the Act is as follows :--

"I. Eﬂect of death on certain causes of acziOn :--

(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against or, as the case may be, for the beneﬁt of, his estate.

"Provided that this sub-section shall not apply to causes of action for defamation . . . . . . .

There is no exception in England for personal non-fatal injuries. Even as regards defamation, there is a section of opinion" that there should be no exception.

40.8. In Australia,' on the death of any person, all causes of action sub- Position in sisting against or vested in him survive against or for the beneﬁt of his estate; with "'""""'a- the exception of causes of action for defamation, seduction, enticement of spouses and damage claims for adultery. Even as regards defamation. the cause of action survives in Tasmania.

40.9. In Canada, in many States, the law relating to survival of personal Position in Canada causes of action has been reformed by statutes passed by the State Legislatures? For example, under section 38(1), and (2) of the Trustee Act of Ontario," causes of action survive as regards all torts or injuries to the person or to the property for breach of promise of marriage.7 .

Substantially to the same effect is the provision in sections 32 and 33 of the Trustee Act of Alberta.' To the same effect is section 7] of the administration Act of British Columbia." Section 49 of the Trustee Act in Manitoba continues all actions of tort except action for libel and slander, malicious prosecution. false imprisonment or false arrest.

In New Bruswick, the Survival of Actions Act has followed the English Act of 1934. In Newfoundland, the Trustee Act, section 22, in effect, provides for actions by or against personal representatives of a deceased for wrong to the property. The Saskatchewan Trustee Act (sections 52 and 53) allows all actions to survive for wrongs "not resulting in death, except libel and slander". In Nova Scotia, the Survival of Actions Act provides that in the event of death of any person, all causes of action subsisting against or vested in him shall survive. except actions for adultery and actions for inducing a spouse to leave or remain apart from him or her spouse.

40.10. In the USA. in most Sfates statutes have been enacted causing u_s_A.

tort" actions to survive the death of either party. (In many statutes, exceptions are made as to actions for harm peculiarly personal, such as defamation and malicious prosecution). Such statutes are commonly known as "survival Statutes"; they transfer to the estate of the deceased person rights and liabilities which the deceased would had, if he or she had lived.

'Section 1(1). Law Reform (Miscella reous Provisions) Act, 1934 (24 and 25 Geo. 5 c. 4!) as amended ' "See para 40. l8 er .veq., infra.

'Also Salmond Torts (1981) page 416 Foot Note 57.

'Fleming, Torts (1955), pge 696.

'Wright, Cases on the Law of Torts ([967). pages 654-655 "Trustee Act, R.S.0. 1960, C. 408.

"Smallman V. i'l/luori, (1948) S.C.R. 295 (Canada).

'Trustee Act, R.S.A. 1955 C. 346, Sections 32-33.

'R.S.B.C. (1960), C. 3, Section 71.

'"l(eeton & Keeton, Cases and Materials on Torts (1977), page 195.

.228 _ We may quote the Texas Survival Statutel as one example of American legislation :--

"All causes of action upon which suit has been or may hereafter be brought for personal injuries, or for injuries resulting in death, whether such 'injuries be to the health or to the reputation, "or to the person of the injured party, shall not abate by reason of the death of the person against whom such cause of action shall have accrued, nor by reason of the death of such injured person, but in the case of the death of either or both, all such causes of action shall survive to and in fayour of the heirs and legal representatives and estate of such injured party and against the person, or persons liable for such in_jurics and his or their legal representatives, and may be instituted and prosecuted as if such person or persons against whom same accrued were alive."

Virtually all States in the U.S.A. allow survival of actions for damage to property. In slightly more than half the States, actions for such torts as defama- tion survive?

Recommendation . 40.1l.So much as regards the legislative developments elsewhere. We now c';'pﬁ"1o°1:°'t?or";°ssa':l'j't proceed_ to consider the need for reform in the Indian law. ln the ﬁirst place, and pmomj gm-u_we consider the exception in section 306 for assault and other personal injuries ries not causing to be totally unsound in principle. It is an archaic survival of the rule' that a death. personal action dies with the person. The rule itself was unsound,' being a product more of historical accident than of any deliberate view of polio . Apart from this. justice requires that such causes of action should survive. Tbllie mere accident of the death of a person ought not to affect the survival of the cause of action, whether the person dying is the wronged person or the wrongdoer. In general, tortious liability arises because of certain harm caused by the tort. A subsequent event ought not to affect a liability that has already accrued because of harm already caused.

We, therefore, recommend deletion of the words "assault . . . . .. or other personal injuries not causing the death of the party" from_ section 306.

in 0? 40.12. In case, however, our recommendation' to delete from section 306 the exception regarding personal. injury is not accepted, we would like to point out the need for a clariﬁcation in the light of certain problems raised by the case law on the subject,' which we proceed to deal with.

the _ _n "personal injury".

Co It f . p . ' ' h ,,,e",;°, ',',,,,.,-§§f,",,",'. 40.13. Case law on section 306 shows that the expression 'personal prosecution. injuries" in the section has proved to be unfortunate and controversial. For example, the question whether the expression includes malicious prosecution, has been the subject of a conflict of decisions. The majority view on the subject would include malicious prosecution within this expression, the reasoning being that the word 'personal' in this section must mean all personal injuries in the com- monly accepted use of the word 'personal', and cannot be restricted merely to physical injuries to! the person. Hence a suit for malicious prosecution does not, according to the majority view, survive after death. This view has been taken by the Allahabad,' Bombay,' Madhya Pra'desh,° Madras," and Patna" High Courts, which hold that a suit for malicious prosecution is a suit for 'personal injury' within the meaning of section 306.

'Tax. Rev. Civ. Stat. Ann. (l955<> »\{:t. 5525. Survival of Causes of Action. Reproduced in Shapiro. Tort and Compensation l.aw ([976), page 478.

'-'((1) Gregory &Kalven, Cases and Materials on Torts (1969). page 522. ([7) Note in (1953) 48 Harvard Law Review ll08.

'Para 40.10. supra.

'Para 40.5, supra.

'Para 40. ll, supra.

'Para 40.13, et seq.. infm.

7/llelitab Sing/z V. Hal) La], A.l.R. 1926 All. 610, 612.

'Motilal v. Harnaravan, I.L.R. 47 Born 716; A.I.R. 1923 Born. 406. 'RaIanIal \'. Baboolal, A.l.R. l96O M.P. 200.

'°.Murugappn \'.'Pom¢sami', A.I.R. 1921 Mad. 405.

"Punjab Singlz v. Ram Autar Singh, (1919) 52 Indian Cases 348 (Patna).

22') The Madras cases which discuss the matter at some length have speciﬁcally hold that the words 'personal injuries' do not mean, bodily injuries only, but include injuries ejusdem generis with both defamation and assault. and therefore include injuries such as those by malicious prosecution.' '""

Relying on earlier cases, it has been held' in Madras that the maximum 'action personalis moritur cum persona' is a part of the law of this country, except in so far as it has been modiﬁed by statute, and that in a suit for mali- cious arrest, if a defendant dies, the right to sue does not survives"

40.14. The Calcutta High Court has, however, held" that malicious pro- C_alcuttaandLahore secution is not a 'personal injury', and it is not covered by the exception in "'°"'-

section 306 and, therefore, the right to sue for it survives. This was also the Lahore view,' which construed the words 'personal injury' as conﬁned to bodily injuries. According to this view, it must be construed with the immediately pre-

ceding word 'assault'.

40.15. This brief resume of the case law on section 306 brings out the Recommendation conflict of decisions as to the scope of the expression "personal injuries not 'Q amend_ §cction causing death". Whichever be the correct construction of the present wording 3(f5"M"."°'°"5 of the section, we are of the view that as a matter of policy, the exception for P °s°°""°"' 'personal injuries' in the context of n,.0n-survival of causes of action (if at all any such exception is to be retained),' should be conﬁned to bodily injury, Justice requires that a cause of action for malicious prosecution should survive, There are adequate reasons why it should be so. The deceased might, before his death have spent money on defending the prosecution. His estate should, for that reason, be allowed to recover the expenses. Apart from this pecuniary aspect, the harm caused by a malicious prosecution is of such a character that a remedy against it should continue to be available even after the death of the person so prosecuted. '' K' 5'"'""" E' For the reasons stated above, we recommend that if the exception for personal injuries not causing death in section 306 is not to be deleted,' an amend- ment should be made to section 306 by deﬁning 'personal injury' as (i) including any disease and any impairment of a person's physical or mental condition," and

(ii) excluding injury caused by malcious prosecution.

40.16. We are also of the view, that, on principle, causes of action for Survival of among defamation should survive after death. Whatever be the thinking on the subject for defamation. in the West at the time when the Act of 1865 (the predecessor of the Succession Act of 1925) was enacted, Indian social notions would rather favour an approach permitting survival of such causes of action. Reputation, in the eye of the Indian Society, is certainly as precious as property. It may sound odd to quote literary sources in a legal discussion, but the subject--matter is such that it would be proper to draw support from the thinking of great writers. Shakespeare, in Othello," has thus described the value of reputation, in contrast with money :

"Good name in man and woman, dear my lord.

is the immediate jewel of their souls;

Who steals my purse steals trash;

'tis something. nothing:

1Marwadi V. Sanmaji, 31 M.L.J. 772, 826, 827.

"Ru.ttomji V. Nurse, l.L.R. 44 Mad. 357'. 379. 380.

"Murugappa v. Ponusami, l.L.R. 1921 Mad. 405.

'Arunachalam V. Subramaniun, A.l.R. 1958 Mad. 142.

'Cf. D.K. Cassim V. Sara Bibi, A.I.R. 1936 Rang. 17 '((1) Krishna Be/mri Sen v. Corporation of Calcutta, (1904) l.L.R. 31 Cal. 993.

(b) Bhupendm v. C/zandiramon, A.l.R. 1927 Cal. 277.

7People's Bank ofNorrhern India v, Dex Raj, A.l.R. 1935 Lab. 705. 'See para 40. ll, S[l[)I'(].

'Para 40.22. infra and paragraph 40. ll, supra. -

'°Cf. Section 3, Law Reform (Personal Injuries) Act. 1948 (Eng).

"Othello, Act III, scene 3, Line 155.

230

'Twas mine. "tis his, and has been slave to thousands; But he that ﬂlches from me my good name Robs me of that which not enriches him.

And makes me poor indeed."

lnganother play,' Shakespeare has compared reputation to the "purest treasure" :--

"The purest treasure mortal times afford Is spotless reputation: that away.

Men are but gilded loam or painted clay."

40.17. By many, reputation is ragarided as even more precious than life. Indian literature has beautiful sayings on the subject."

We may mention that the Universal Declaration of Human Rights3 also recognises the increasing importance of reputation. It provides :--

Views expressed in literature.

"ARTICLE 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence. nor to attacks upon his honour arid reputation. Everyone has the right to the protection of the law against -such interference or attacks."

Move fm. re,-"mm 40.18. It may be mentioned that the principle that the cause of action for England as to de- defamation should survive has been approved by the Committee recently appoint- f3D3m°"- ed in England to report on the law of defamation.' View of academic 40.19. Editors of several leading books on torts have criticised the """°"5- exclusion of defan_1_ation from the category of causes of action that survive.

"Defamation may cause much more harm to the next of kin than an assault.' ". . . the exclusion or defamation from the provisions of the Act of 1934 is hard to justify. Not only does the victim of a libellous attack lose his rights to damages if his defamer dies, but he also loses the opportunity of vindicating his character in a court of law.''' Recommendation 40.20. For the reasons stated above, we recommend that the word "defama--

:5:-ms'l°l%'r' d:f';':;§: tion' should also be deleted from section 306.

ton.

Applicability of 40.21. The next point arising out of section 306 concerns the applicability S°°"0ﬂ 305 I0 f<=- of the section to representatives other than executors and administrators (who "'°S°"'a""'9' are expressly mentioned in the section). There is a conflict of judicial decisions on the subject.

According to the Allahabad High Court,' the word "executors or ad1ntms_ trators" in this section mean persons who are appointed by the courts to administer the estate of the deceased person in the absence of a will or persons nominated by the testator in his will to administrater his estate. The section, there- fore, does not give a right to continue proceedings by or against heirs as representing an estate.

According to the Lahore view,'-9 however, there is no reason to hold that the liability of the heirs who have not taken out probate or letters of administra- tion should stand on it different footing.

'Richard ll, Act 1. scene l. line 177.

"E-LG. Bhagvadgeeta. Chapter 2, verse 34.

"Article 12. Universal Declaration of Human Rights.

'Committee on Defamation, Report (1975, March), page 116, para 423 and 5909.

5!-Icuston (Ed.), Salmond on Tort (16th Ed.) (1973), page 451. foot note 49. Also Salmond Torts (1981).

'LA. Jollowicz and Ellis Lewis (ed) Winﬁeld on Torts (1967). page 627.

70ﬂ'ict'al Liquidators v. Jugal Kishore, A.I.R. 1939 All. 1, 3, 4 (Harries J. ).

'Peoples Bank of Northern India Ltd. v. Des Raj, A.I.R. 1935 Lahore 705.

'People Bank of Northern India Ltd. v. Har Gopal, A.I.R. 1936 Lahore 271.

231

We arc of the vic\'.- that section 306 sho_uld apply to the other persons--the heirs--also, there being no reason for having a different rule as to survival of actions for or against them.

40.22. in the light of the above discussion. we recommend that section Revised section 306 306 be revised as follows : V "306. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators or represenztiiives, except . . . . . . .- in cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory."

ILLUSTRATION :;= :3:

"A sues for divorce. A dies. The cause of action does not survive to his representative."

ALTERNATIVE SUGGESTION If the words "excluding "personal injuries" are not deleted, then the amend- ment' proposed to deﬁne the expression "personal injury" should be carried out, and "representative" should also be added." The amendment should" deﬁne 'personal injury' as (i) including any disease and any impairment of a person's physical_or mental condition.' and (ii) Cxcluding injury caused by malicious prosecution. _ 1:

For the purpose. an Explanation could be added to section 306.

III. Disposal of Property.

40.23. Section 307 reads :-- sccuon 307, "307. (1) Subject to the provisions of sub-section (2) an executor or power of guano.-

administrator has power to dispose of the property of the deceased, vested in or administrator to him under section 211. either wholly or in part, in such manner as he may d'5P°'° °f P'°P"'Y- think ﬁt. ' _ ILLUSTRATION

(i) The deceased has made a speciﬁc bequest of part of his property. The executor, not having assented to the bequest, sells the subject of it. The sale is valid.

(ii) The executor in his discretion mortgages at part of the immovable estate of the deceased. The mortgage is valid.

(2) , If the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jain or an exempted person, the general power conferred by sub-section_ (i) shall he subject to the following restrictions and conditions, namely :--

( i) The power of an executor to dispose of immovable property so vested in him is subject to any restrictions which may be imposed in this behalf by the will appointing him, unless probate has -been granted to him and the Court which granted the probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immovable property speciﬁed in the order in a manner permitted by the order.

(ii) An administrator may not, without the previous permission of the Court by which the letters of administration were granted,--

(a) mortgage, charge or transfer by sale. gift, exchange or other-

wise any immovable property for the time being vested in him under section 211. or 1Paia 4ts.i11;,;,,;.;. ' "Para 40.15, supra.

"Para 40.11. supra.

'Cf. section 3. Law Reform (Personal Injuries') Act. I948 (Eng).

232

'W lease any such pt'Op€I'l_\ lot it term exceeding live years

- (iii) A disposal of property by an executor or administrator in contravention of clause (i) clause (ii) 'as the case may be, is voidable at the instance of any other person interested in the property.

13) Before any probate or letters of administration is or are granted in such a case, there shall be endorsed thereon or annexed thereto a copy of sub-sgction (1) and clauses (i) and (iii) of subsection (2), as the case may e.

(4) A probate or letters of administration shall not be rendered invalid by reason of the endorsement or annexure required by sub-section (3) not having been made thereof or attached thereto, nor shall the absence of 'such an eiidorsernent or annexure authorise an executor or administrator to act otherwise than in accordance with the provisions of this section.

40.24. Various questions of detail have arisen under this section as to powers of the executor, such as the power to refer to arbitration the question of genuineness of the will, power to determine questions arising in administration when such a discretion is given to the executor by the will, power to employ agents and servants, power in regard to the performance of contracts, carrying on of businss, personal liability of the executor, unsecured loans and proper expenses for improvement of the property. The determination of such questions, however, depends on the facts of each case, and there is no need to amplify the section on this score.

Question of detail.

Section 308--power 40.25. This takes us to section 308 :

of executor of 3'1m1m5"3'°F- The section deals with the general powers of administration of an executor or administrator. It provides that an executor or administrator may, in addition to and not in derogation of any other power of expenditure lawfully exercisable by him, incur expenditure----

ta) on such acts as may be necessary for the proper care or management of any property belonging to an estate administered by him; and

(b) with the sanction of the High Court, on such religious, charitable and other objects, and on such improvement, as may be reasonable and proper in the case of such property, The section needs no change.

sagging 309. 40.26.-- Section 309 provides that an executor or administrator shall not K°°°m3!9nd8ti°"- be entitled to receive or retain pny commission or agency charges at a higher rate than that for the time being ﬁxed in respect of the Administrator-General by or under the Adrninistrator-General's Act, 1913. This should not be read as referring' to the Administrator--General's,Act, 1963. v Background or' 40.27. The lagal background in which this section was considered 3°°¢i0n 309- necessary may be brieﬂy explained. Ordinarily, at common law, a legal represen-

tative is not entitled to any allowance for this time and trouble spent by He is entitled only to out of pocket expenses." In the absence of a special clause in the will authorising a charge for professional services, even a Solicitor-Execu- tor or a Solicitor----Administrator is not allowed such remuneration.' It has, there- fore, become a practice to insert in the will a clause authorising the Solicitor- Executor to charge and be paid the usual professional charges for the business done by him or his ﬁrm in relation to the execution of trusts, whether in the ordinary course of his profession or business or not, and although of a nature requiring the employment of a solicitor or other professional person, Even where such a clause is inserted, it is regarded itself as a legacy, and not as a debt' due from the estate to the executor.

'Section 45 of the 1963 Act.

5/11 the case ofAks/my Kzmzar Chose, A.l.R.' 1949 Cal. 462.

"Rob!/Irorr V. Pett, (1734) 3 P. Williams 249.

'Aglia Molmzad v. Koolmn Beebee. (1897) Law Reports 24 India Appeals 196 (Privy Coun- cil).

233

40.28. This is the legal background of the sectionand the full scope of §'!:¢<gt:1i°¢::§53a'S0 the section cannot be understood 'unless that background 1S keptpm mind, How- need for Chan" in ever, there seems to be a certain amount of incompleteness in form, 'which Subsgancg.

arises from the fact that the section, does not tell is clearly whether such

-commission or agency can be claimed only if the will allows it, or whether it can be claimed unless the will prohibits it. The letter may be a more practical approach and we think that there should be a speciﬁc provision on the subject.

40.29. Then, there is need for change in the substance of the section, Chargesinexcessof arising from the fact that it is not clear whether a provision in the will allowing 2'35? "."t°"'°d ""4" charges in excess of those allowed under the Administrator--General's Act} would Ge',:';?;s,5Sm?{,;. be valid. Of course, it would be reasonable to take the view that it is valid, but the statement of the position could be made explicit in this regard also.

40.30. In this context, in particular, the case where a bank is appointed as Bank as ex.-sum- an executor requires to be considered. Where the will itself provides for the position of. payment of charges, the bank may be entitled to the ordinary charges for the _work which is done in administering the estate? However, it is possible that a bank may refuse to accept executorship if its charges, which may, be more than those permitted under the Administrator-General's Act, are not paid. In qrder to "meet such cases, the court should be given a power to relax the rule con- tained in section 309.

40.31. On a consideration of all aspects of the matter, it seems to us that R¢comm¢n¢a¢§(_n section 309" should be modiﬁed on the following lines : $69 amend section ( I ) Whether or not the will provides for the payment of remuneration, so long as the will does not prohibit such payment, an executor or administrator shall be entitled to receive or retain reasonable com- mission or agency charges. ' (2) Unless the will otherwise provides or the court otherwise permits, those charges shall not 'be at a higher rate than that for the time being ﬁxed in respect of the Administrator General by or under the Adminis- trator Gcnera1's Act, 1963.' ' As already stated above} the proposed relaxing power of the Court would be particularly useful where a bank is appointed an executor, The following is a suggested draft.

Revised section 309.

"309. (l) W/iet/tor or not the will provides for the payment of remunera- tion, if the will does not prohibit such payment, an executor or adrninjs- trator shall be entitled to receive or retain reasonable commission or agency charges. ' (2) Unless I/l(:' will otherwise provides or the court otherwise permits, such commissi0n or charges shall not be at a higher rate than that for the time being fixed in respect of the ,4dmini'stmtor General by the Administrator GeneraI'.s' Act, 1963."

40.32. Section 310 provides that if any executor or administrator purchases, section 31o__ either directly or indirectly, and part of the property of the deceased, the will is Recommendation. voidable at the instance of any other person interested in the property sold, This section is based on the rule that a legal representative shall not derive any pecuniary beneﬁt from his office." With reference to this section, it is desirabld to introduce an exception for the case where the purchase is done with the sanc- tion of the court. At present, the section does not admit of any such exception, 'Now see section 45, the Administrator-Generalis Act. 1963. 'G(imbeII, in the estate 0/(I934) All E.R. 443.

3Para 40. 28, supra.

'Paras 40.28 and 40. 29. sttpra.

5I'ara 40. 30. supra.

°Paruck. Indian Succession Act (1977). Page 733.

Recommendation .

Section3 12.

Section 313.

Section 3 l 4.

Section 31 5--~--

Powers of married 234 but the reasonableiics of such am exceptioii is obvious, We recommend that the section should be so amended, ' " ' '40.33. Section 311 provides that where there are several executors or administrators, the powers of all may, in the absence of any direction to the °0mf31'}', b6 eXerC1S€d by any one of them who has proved the will or taken out administration. ' There are six illustrations to the section. The gist of the lirst live may be represented by stating that one of several executors has power to realise a debt due to the deceased, surrender a lease, sell the property of the deceased (whether movable or immovable), assent to a legacy and endorse a promis- sory note payable to the deceased. But the powers of one of them may be restricted if the testator so directs---a situation illustrated in illustration (vi).' In th illustration, the will appoints A, B, C, and D to be executors, and directs that two of them shall be a quorum. No act can then be done by "a single executor.

40.33. A matter of detail may now be dealt with. The section speaks of :1 "direction to the contrary", but does not specify where the direction is to be contained. The view expressed by one commentator' is that the restriction contem- plated in the section must be either in the will or in the grant. It appears to be desirable to codify this position, and we, therefore, recommend that in section 311, after the words "either in the will or in the probate" should be inserted.' 40.34. This takes us to section 312, which lays down that upon the death of one or more of several executors or administrators, in the absence of any direction to the contrary in the will or grant of letters of administration, all the powers of the oﬁice become vested in the surviors or survivor.

The section does not appear to need any change.

40.35. Section 313 provides that the administrator of effects unadminister-

ed has, with respect to such effects. 'the same powers as the original executor or administrator.

This section also needs no change.

40.36. Section 314 provides that an administrator during minority has all the powers of an ordinary administrator. No changes are needed in the section.

40.37. Section 315 provides that when a grant of probate or letters of administration has been made to a married woman, she has all the powers of executrix or admi- an ordinary executor or administrator.

nistratrix.

Scope.

This section also needs no change.

CHAPTER 4] DUTIES OF AN EXECUTOR OR ADMINISTRATOR SECTIONS 316 T0 331

1. Introductory.

41.1. The duties of an executor or administrator are governed by sections 316 to 331, which need no introductory comment.

i§;;;.'..; Kumar v. Illeimr Chandra, AIR 1961 C31. 411,413.

"Patrick, Indian Sucession Act (1977). page 734.

235

11. Funeral Expenses.

41.2. According to section 316, it is the tint of an executor' to rovide funds Section 316--provi- k 3/ P , _ for the performance of the necessary funeral ceremonies of the deceased in aiéloﬂ fl" funds fog! manner suitable to his condition. if he has left property sufficient for the purpose. "me" ceremome ' The section needs no change.

Ill. Inventory.

41.3, Section 317 reads as under 2 Section 317---Inven-- ,_ _ , _ _ _ , tory and account.

"31/. (1) An executor or administrator shall within six months front the grant of probate or letters of administration, or within such further times as the Court which granted the probate or letters may appoint, exhibit in that Court an inventory containing a full and tme estimate of all the pro- perty in possession, and all the credits, and also all the debts owing by any person to which the executor or administrator is entitled in that character; and shall, in like manner, within one year from the grant or within such further time as the said Court may appoint, exhibit an account of the estate, showing the assets which have come to his hands and the manner in which they have been applied or disposed of.

"(2) The Court may prescribe the form in which an inventory or account under this section is to be exhibited.

"(3) If an executor or administrator, on being required by the Court to exhibit an inventory or account under this section, intentionally omits to comply with the requisition he shall be deemed to have committed an offence under section 176 of the Indian Penal Code.

"(4) The exhibition of an intentionally false story or account under this section shall be deemed to be an offence under section 193 of that Code."

41.4. The object of the provision regarding the exhibition of accounts, etc. Qbiect of the sec- under section 317 seems to be to ensure that the accounts, etc. are available "°"' for inspection by the parties interested in the administration of the estate.' There is, however, no obligation to maintain accounts."

41.5. The origin of section 317 has been thus described"--~ History of the Set-

"The. Statute 21 Hen. VIII c.5, provides for the making of inventories by mm executors and administrators of all the goods, chattels, wares, merchandise as well movable as not movable whatsoever that were of the deceased, and by Stat. 22 and 23 Car. II, c. 10, section 1, an administrator must have entered into a bond conditioned a.mongst other things for his exhibiting into the registry of the court, at or "before a day speciﬁed, a true and perfect inventory of the goods, chattels, and credits of the deceased that come to his possession. The bond given under the Court of Probate Act, 1857 (20 and 21 Vict. c.77), is conditioned to make the inventory when lawfully called on, and to exhibit the same whenever required by law so to do.' Sta. 22 and 23 Car. II c.lO, required executors or administrators to exhibit inventories. as part of their duty, without any pt'0CEC(iin.'1 to call upon them to do so."

According to the practice of the Prerogative Court, an executor was bound to ﬁle an inventory before grant of probate.'--' 41.6. The provisions of section 317 are mandatory so that a provision in season mandatory', the will that the executor shall not be bound to render accounts is of no avail.' 'See C/Ilteda Lu! v. Dulan', A.l.R. 1930 Oudh. 425, 426 (Srivastava J.). 3R.K. Ax/tere v. To/1zptor1Jc/zarzgir, AIR I961 Guj. 137. M0. 3Basu, Sucession Act. (1957). page 912).

'Williams on Executors, llth Edn. page 733.

"P}n'Ilt'ps V. Bfgnell, l Phill. 240.

'Williams on Executors, 11th Edn. page 733.

_ 'Pear! Ltd v. Bepin Be/tart', AIR l9l8 Cal. 107, 85-L/B(D)l44MofLJ&CA------l6 236 consequelm, Ur __ 41.7. llie consequences of iion-conipliaiicc with section 317 are tnanifold. non-compliance. lhc executor has, under this section, statutory duties to perform, and until he has done that. he does not divest himself of the character of the executor. Non- liling of the inventory and accounts under section 317 leads to the following consequences' :

(l) The executor makes himself liable to punishment under section I76.

lndian Penal Code. if the requirement of suh--section (3) of section 3l 7 is fulﬁlled:

(2) the executor subjects himself. at the instance of an interested party. to an administration suit; and (3) the grant is liable to be revoked." i.e. it' the executor has wilfully and without reasonable cause omitted to exhibit the inventory or account?-' ' and (4) it would be a breach of the. bond also."

41.8. A connected provision in the Act is section 29]. under which an administration bond is required to be ﬁled by every person to whom letters of administration are granted. It may, however. he noted that the Administrator- General is exempt from this requirement."

Provisipns in 41.9. The relevant provisions in the Adininistratoi'--General's Act, 1963' may Adn3InI§trat0I'- now be considered. Under section 5 of that Act. the Administrator-General is a G°"*""l 5 A" corporation sole, having perpetual succession. Under section 6, the High Court is deemed to be the Court of competent jurisdiction as regards the grant of probate or letters of administration to the Administrator-General under any law for the time being in force. Under section 26, no administration bond or other security is required from the Administrator-General. Under section 43, the accounts of the Administrator--Gencral shall be audited by the prescribed person and in the prescribed manner.

Under section 49, interested persons are entitled to inspect the accounts of the Administrator-Geiieral. Section 53 provides that nothing contained in the Indian Succession Act. 1925. aﬂects the rights, duties and privileges of any administrator-General. Under section 62, the State Government may make rules for carrying into effect the purpose of the Act and for regulating the proceedings of the Administrator--General.

- 41.10. The corresponding provision in England (relevant portion of section correspondin pro- . . . - .

vision in Englgand 25.. Administration of Estates Act. is quoted below)~--

"25. The personal representative of a deceased person shall, when l:lWfUll}' required so to do, exhibit on oath in the court, a true and perfect inVentor_\' and account of the real and personal estate of the deceased, and the court shall have power as heretofore to require personal representative to bring in inventories." .

P , , E I 1 41.11. In actual practice. however, in England. the executor does not ﬁ]?fga'(')',~ exhibit an inventory unless an application is made to the Registrar on sunimoiis inventoﬁes, for that purpose by some party interested.' 41.12. Having regard to the form of aﬂidavit for Inlnad Revenue, an applica- tion for an order to exhibit an inventory is very seldom made." in England, In 'GuIa!i v. Reeves----Bruw/I A.l.R. 1939 Lah. 463, 464.

'-'SanIiram Day v. Pmsad Day, A.l.R. I952 Cal. 358.

"Section 263. Explanation. clasue (e).

'As to section 263. see Anil Be/zari v. Lafika. (I955) S.C.R. I026. 'See Lat'/mmn Day V. ('/lmter, U888) l.L.R. 10 All. 29. 34. 'Section 24. Administrator-General's Act. 1963.

"The Administrator-General's Act. I963 (45 of I963).

"Section 25. Administration ofEstates Act l925 (15 Geo. 5 c. 23'). °Williams on Executors (1960). Vol. 1. page 442.

"See Williams on Executors (1969), Vol. I, page 442.

237

Jenkins,' an account was ordered to be delivered by the ex-administrator on the application of the executor under a will which was afterwards disclosed, lhe linglish practice on the sub_ject has been thus stated :«-~ "In practice, the representative never exhibits the inventory unless he is called upon to do so." The place of inventory is taken by the accounts rendered by the personal representative to the Inland Revenue authorities for the purpose of assessing the Death Duties."

41.13, It may be stated that in England, the otlicer corresponding to the Position in England Administrator-General is the Public Trustee, governed by the Public Trustee '°8""'d"'3 Publlc Act, 1926. For our purpose, it is suﬁicient to refer to the relevant portion of me' section 11 of the Act quoted below' 1-

"ll. (4) Where any bond. or security would be required from 21 private person upon the grant to him of administration, or upon his appointment to act in any capacity, the public trustee. if administration is granted to him or if he is appointed to act in such capacity as aforesaid, shall not be required to give such bond or security, but shall be subject to the same liabilities and duties as if he had given such bond or security."

4l.14.'Alt.hough there is considerable case law on the section. yet it is Case 1-3"- unnecessary to discuss it in detail' for the present purpose.

41.15. However, we must deal with a suggestion made by a State Govern- state Government ment' for the amendment of the law. The suggestion is to amend section 317(1) 10 aménd 5- 317. so as to provide that when letters of administration are granted to the Administra- tor-General, it shall not be necessary for him to ﬁle" the inventory and accounts required to be ﬁled by that section.

41.16. In our view, the suggested amendment has considerable merit, there Merits Of Suggested being good reasons for exempting the Administrator-General from the operation """°"dm°"'* of section 317. In the ﬁrst place, he is already exempt from the major obligation to execute an administration bond] and it is logical that he should be exempted from section 317 also. In the second place, his accounts are audited regularly"

by the competent officers.' Hence, no further security is required. In the third place, his position, being statutory, is quite different from that of a purely non-olﬁcial executor. It would, therefore, be proper to exempt him from the duty to ﬁle an inventory of his own accord; though the power of the court to require him to do so may be preserved.

41.17. For the reasons given above, we recommend that section 317 of the R¢€°mm'~'3d3l5<'l1_ Indian Succession Act, 1925. should be amended by adding the following F.xcep- §';7'am°" '°°"°"

tion to the section :

"Excepti0n----Where the Administrator-General is the executor or adminis-

trator. he shall not be bound to exhibit an inventory or an account of the estate: under this sub-section, unless the court has tlircctetl him to do s0, in which case he shall exhibit the inventory or the account, as the case rnuy be, within such period as the Court may allow; but copies of the accounts maintained by him shall be ﬁled in court. .

41.18. This takes us to section 318, which provides that where a grant has S°°"9" 313-'f'""°"' been made of probate or letters of administration intended to have effect through-- :,';ﬁ'd'" ciffrguggm out India. the inventory must include all property in India along with a state-- India.

'In the goods ofjenkins, (1897) 76 L.T. 164: 23 Diglot 250. Case No. 3081).

zMVddl€!0ﬂ v. Ruhont, (1797). 1 Phillim 244: Phillips V. Bimwll. (1811). 1 Phillim. at Page

240. "Section 11, Public Trustee Act, 1906 (6 Edw. 7, c.5).

'Some of the cases are collected in Santiram Das v. Prasharl Dav. A.l.R. 1952 Cal. 358.

'Law Commission File No. 3 (2) 58-L.C. S. No. 93.

"As to the practice in Bombay, see But' Panbai Mnrnrji, A.I.R. 1927 Bom. 438, 349 (Mirza 2). 7Section 26, Administrator-Generals Act, 1963.

"Section 43, Administrator-General's Act, 1963.

238

ment of its value in each state separately, and the probate fee shall be payable accordingly, i.e. on the entire amount of value in India.

The section needs no change.

Section 319. 4l.l9. Section 319 provides that the executor or administrator shall collect. with all reasonable diligence, the property of the deceased and the debts that were due to him at the time of his death.

'I he section does not require any change.

Section 320--prio- 41.20. Section 320 deals with the payment of funeral expenses and death rity for certain ex~ bed charges, including fees for medical attendants, and fees for boarding and Pen<6S- lodging for one month previous to the death of the deceased. These must, be paid before all other debts.

We have no comments on this section.

swim, 32.. 41.21. Section 321 deals with the next category of expenses in the order of priority. We are concerned this time with the expenses of obtaining probate or letters of administration, including the cost of judicial proceedings necessary for administering the estate. These must be paid next, after the funeral expenses and death bed charges referred to in section 320.

The section does not require any change.

Section 322. 41.22. Section 322 provides that wages due for services rendered to the deceased within three months next preceding his death by any labourer, artisan or domestic servant shall next be paid, and then the other debts of the deceased according to their respective priorities (if any).

The section needs no change, not having created any problems.

Section 323. 41.23. This takes us to section 323. quoted below:

"323. Save as aforesaid, no creditor shall have a right of priority over another; but the executor or administrator shall pay all such debts as he knows of, including his own. equally and rateably as far as the assets of the deceased will extend," ~ This section also needs no change.

Semen 324_ 41.24. Section 324 reads as under :--

"324, (1) If the domicile of the deceased was not in India, the application of his moveable property to the payment of his debts is to be regulated by law of India.

(2) No creditor who has received payment of a part of his debt by virtue of sub--section (1) shall be entitled to share in the proceeds of the immov-

able estate of the deceased unless he brings such payment into account for the beneﬁt of the other creditors.

(3) This section shall not apply where the deceased was a Hindu. .\/Iuham4 mz.-dan. Budhist. Sikh or Jain or an exempted person."

The illustration is as follows :--

ILLUSTRATION "A dies, having his domicile in a c0unt'ry where instruments under seal have priority over instruments not under seal, leaving movable property to the.

value of 5,000 rupees, and immovable property to the value of 10,000 rupees, debts on instruments under seal to the amount of 10,000 rupees, and debts on instruments not under seal to the same amount. The creditors holding instruments under seal receive half of their debts out of the proceeds of the moveable estate. The proceeds of the immoveable estate are to be applied in payment of the debts on instruments not under seal until one-half of such debts has been discharged. This will leave 5,000 rupees which are to be distributed rateably amongst all the creditors without distinction. in proportion to the amount which may retain due to them."

239

41.25. The only part of the section that requires comment in sub--section (2). _CriI71it1aIi0|10fsub-

whose utility seems rather diﬂicult to appreciate. The sub--section assumes Ilia: by 5°C"°" (27- virtue' of sub-secti0n ( l ). the creditor has received some kind of special rig/its.

This assumption is not, however. correct when one has regard to present sub- section (I ). The situation seems to have arisen by reason of certain accidents of drafting. This point will be best understood if the history of the section is examined, Sub-section (l) of section 324 corresponds to section 283 of the ' Act of 1865 (10 of I865). Sub-section (2) corresponds to section 284 of that Act. Before 1889. section 283 lie. the predecessor of present sub-section (l) was diﬂerent from the present rule. In substance. it applied the law of the country of riomicile. At that time, therefore, the provision contained in section 284 (which was the predecessor of sub-section (2)] made sense. in l889 (by Act 6 of l889). section 283 was amended so as to read (in substance) as section 324 (I) now reads.

In section '283 of the Succession Act (10 of 1865). (as originally enacted). the words "the country in which he was domiciled" were used. Subsequently. by Act 6 of 1889, the words "British India" were substituted for the words "the country in which he was domiciled" and the illustration originally attached to section 283 was repealed. This was really a change of suhstztnce. and not a mere verbal amendment.

At the time of the amendment of 1889.3 however. section 284 was (apparently by slip) not amended. The un-amended section was carried forward in present section 324 (2).

41.20. it may be mentioned that section 283 (as originally enacted in Original rule of 1865) followed the English law as regards the priority of debts. as it then En8liShlaW- obtained in England." The vexed question was, what rule was to govern in the administration of assets----the law of the domicile or the law of the situs'? Sir J. Rotnilly, in Wilson V. Ltidy Dunsagy,' held that the personal estate of the tcstator must be administered on the principle of the law of his dtmihﬁle. In Cooke V, Gregson," it was decided that an lrish iudgment---4:reditor of it testator doimz-[let] in Ireland was entitled in England to priority, according to Irish law, in respect of assets which had been brought from Ireland to Enland'. But the observations of Kindersley V.C., in that case. although not necessary. appeared to put the question as though it were rather dependent on the .w'm.r of .'/It' tI.S'\'('/\"'[l1all on the domicile of the deceased.

41.27. Section 283. as it found place in the Indian Succession Act, followed Subscquenz d¢yc- the English law as then understood. Subsequently, in 1885, in England, it was iopmems in Eng. laid' down' that if a man domiciled in England dies possessing assets in France, lish law. the French assets must be collected in France and distributed according to the law of France, but that, in the administration of assets in England, a creditor (of whatever nationality) is entitled to be paid equally with English creditors in the same class. In 1889. the Indian legislature by Act 6 of the 1889 (following the English law as laid down in I885) amended section 283, by replacing the words 'the country in whicli he was domiciled," by the words 'British India'. it is now well established that administration?-'" is not governed by the law which governs succession (last tlomicile)--~but by the law the country where administration takes place.

4 L28. The following illustration appended to the original section 283 corres~ ponding to present sub--section (1') was also repealed in l889 :

'Note the words "by virtue of"

=For details. see para 4! .29. in/ru.

"M.N. Basu. Succession Act (1957). page 930.

"W'r'/.c'(m \'. Lac/_t' Drmmjn, H854) E8 Beav. 293: 23 L1. Ch. 492. '('rro!< \'. (fr:';rm-1, (I854-l 2 Drew . 286.

'Foot\ Prixatc lnterntttional .lu:'isprudencc. page 311.

7Re Kine/)1', I\"tmu/'t'uI/tor \. (}w's'e'l/n't't'/ti. ll895l 28 Ch. I). 175. "Halsbur_\'. 4th Ed. Vol. l7. pages 582-583. para H28.

'Wolff. Private International law (1950) p. 605.

"Cf. Morris in (I950) Vol. 3 I.C.L.Q. 243.

240

"A dies, /tat«'t'i1g /us dwnicile in c.' country where 1'ns'Irtmzerzt's under seal have priority over instruments not under seal,' leaving moveable property to the value of 10,000 rupees, immoveable property to the value of 5,000 rupees, debts on instruments under seal to the amount of $0,000 rupees, and debts on instruments not under seal to the same amount. The debts on the instruments under seal are to be paid in full out of the tnoveable estate, and the proceeds of the immoveable estate are to be applied, as far as they will extend, towards the discharge of the debts not under seal. Accordingly, one half of the amount of the debts not under seal is to be paid out of the pro- ceeds of the immoveablc estate."

Anomaly how aris- 41.28, But, as stated alreadyf unfortunately section 284 [Le present section ing. 324] was retained without any amendment at the time when sub-section (1) was amended in 1889. The words "no creditor who has received payment of a part of his debt by virtue of the last preceding section, etc." were retained, even though they were no longer appropriate after the amendment of sub-section (1). This is how the present anomaly has arisen.

Need for amcnd- 41.29. It is necessary that this anomaly should be rectiiied. Sub--scction (2) 93232;" 3'f48a"l 'O has now become not only redundant, but also confusing.

i1°°°f"m°*5d3;lc"c';ion 41.30, For these reasons, we recommend that section 324 (2). and the 3%4'am°" illustration to the section, should be deleted.

If the provisions of the Act relating to domicile are extended to Hindus etc. as recommended by us separately" sub--section (3) of section 324 will also have to be deleted.

Section 3,2S--de.bts 4} .3 l. This disposes of section 324. Section 325 provides that debts of every to b_e Paid before description must be paid before any legacy. It seems to be based on the principle l°83°|¢5- that a man must be just before he is generous.

It needs no change.

V. Legacies.

5.°°'l°" .32."f.'°°"' 4|.3L'. According to section 326, if the estate of the deceased is subject to t"'g°"' l""b'l'"°5' any contingent liabilities. an executor or administration is not bound to pay any legacy without it suﬁicient indemnity -to meet the liabilities whenever they may become due.

lhc section needs no change.

Section 327---» 41.33. Section 327 provides that if the assets, after payment of debts, gll"";;'=g:"c°i:: °f 35"' necessary expenses and speciﬁc legacies, are 'not sufficient to pay all the general ' legacies in full, the latter shall abate or be Cl1l'ILll1.lSl'l€(l in equal proportions_ and. in the absence of any direction to the contrary in the will, the executor has no right to pay one legatce in preference to another, or to retain any money on account of a legacy to himself or to any person for whom he is it trustee. The section needs no change.

Samoa 328__.NO 41.34. Section 328 provides that where there is speciﬁc legacy, and the abatement of speci- assets are sufficient for the payment of debts and necessary expenses, the thing ﬁ°l<'«83Ci°5« speciﬁed must be delivered to the legatee without any abatement. ' This section also needs no change.

Sectiop1329----Pret'e- 4l.35. Section 329 provides as under 2- 1' ' in r's- - . . _ ;:?:tla0fc(;:!t:0nStl:a- "329. Where there is a demonstrative legacy and the assets are sulﬁctent tive legacy. for the payment of debts and necessary expenses. the legatec has a preferen-

tial claim for payment of his legacy out of the fund from which the legacy is directed to be paid until such fund is exhausted and if. after the fund is exhausted. part of the legacy still remains unpaid, he is entitled to rank 'Emphasis is added.

"Para 4! .26. rupm.

"See recotntnendation as to section 5-20, xupm.

241

for the remainder against the general assets as for legacy of the amount of such unpaid remainders.

The section needs no change. having created no probl-:ms_ 41.30. Section 330 provides that ii the assets are not sullieicitt to ans\\'eI'Seet_ion 330, illus- the debts and the speciﬁc legacies. an abatement shall be made lrom ihe latter l_Fr"}10" 30 be re"- rateably in proportion to their t'espcCti\c amounts. lhe liit!s'll".lliUtl reads ;:s'°'~' under 1% ll.LUS'l RA'l'l()N "A has bequeathed to B a diamond ring valued at 504! rupCc.s_ and to L' a horse, valued at 1,000 rupees. It is found necessary to sell all the ellects of the testator; and his assets, after payment of debts, are oniy L000 rupees. Of this sum rupees 333~5~4 arc to be paid to B, and rupees (i(xo--l0--8 to C."

The illustration to the section should he lcvised, so as to express the amounts in decimal coinage. We recmnmentl accordingl}.

41.37. Section 331 provides that for the purpose of :tlJ'.ttetttct'.l. a iegacyscction 331.-A for life. a sum appropriate by the will to produce an annuity. and the value ol |¢gaC>'l'0rlI'fe- an annuity when no sum has been appropriated to produce it. shall he treated as general legacies.

The section needs no change.

CHAPTER 42 Assuwr TO A LEGACY BY EXECUTOR on ADMINISTRATOR ' (SECTIONS 332 to 337;

42.1. Sections 332 to 337 lay down the law relating to assent to a legacy of Scheme of the sec- tions.

an executor or administrator.

The general principle is that assent of the executor or administrator is necessary to complete the title of a legatee to his legacy: section 332. This. in fact, could be derived from the broader principle that it is the executor or administrator who represents the deceased.' and in whom 'the title vests until steps are taken to "divest his interest."-' Once the assent is given. it takes etfect from the death of the tcstator; section 336, Payment or tlzrlivcry oi' the legacy. however, by the executor is not obligatory. until one year expires after death :

sections 337 and 338.

The rest of the sections regulate certain matters of detail. We now proceed to a consideration of each section in detail,

43.2. Section 332' reads :--

"332. The assent of the executor or admitlistrator is l'tCCCs.sttt'_\' to complete a legzatces title to his legacy.

ILLUSTRATION

(i) A by his will bequeaths to B his Government paper which is in deposit with the Imperial Bank of India." The Bank has no authority to deliver the ' securities, nor B a tight to take possession of them_ without the assent of the executor.

Iii) A by his will has bequeathed to C his house in Calcutta in the tenancy of B. C is not entitled to receive the rents without the assent of the execu-

tor or administrator." ' 'Sec sections 305-315. and discussion relating thereto.

-'Con1pare section 333 (l t. and section 21 1.

"Illustration ti) may be revised to substitute "State Bank of India" in place of the words "imperial Bank of India". _ Want of assent --

Recommendation.

Section 333- p _ Assent to a speeinc bequest.

242

The precise purport of this section remains obscure, until one turns to the remaining sections-----particularly, section 336. Section 336 provides that an assent to the title relates back to the date of death.

Thus, it is not a case of "no title until assent". but "inchoatc title until assent".

42.3. it has been held by Bombay High Court' that even where it was expressly directed in the will that the legatee may take possession of his legacy without the assent of the executor, yet. if he does take p0.s'sessi'nz, the executor may maintain an action for trespass.

The Calcutta High Court has held' that the legatee has a vested right to the legacy even though the assent of executor is not given. with the result that any alienation by the legatee before assent by the executor is not void, but merely inchoatc until assent is given. It was explained that the section is meant to protect the executor. so that he may have money available for the payment of debts.

These rulings sh()w that there is some obscurity as to the vesting of title, pending assent.

It appears to us that such an important matter as the vesting of title should not be left in doubt. The position should be improved by a suitable clariﬁcation. to the effect that nothing in this section shall be deemed to invalidate a transfer of the property (which is the subject-matter of the legacy) by the legatee before assent by the executor or administrator. but every such transfer shall be regarded as conditional on the assent of the executor or the administrator, as the case may be. We recommend that section 332 should be amended by inserting an Explanation on the above lines.

42.4. Section 333 reads------

"333 (i). The assent of the executor or administrator to a speciﬁc bequest shall be sufficient to divest his interest as executor or administrator therein, and to transfer the subject of the bequest of the legatee, unless the nature or the circumstances of the property require that it shall be transferred in a particular way.

(2) This assent may be verbal, and it may be either express or implied from the conduct of the executor or administrator.

ILLUSTRATI ONS (it A horse is bequeathed. The executor requests the legatee to dispose of it, or a third party proposes to purchase the horse from the executor, and he directs him to apply to the legatee. Assent to the legacy is implied.

(ii) The interest of a fund is directed by the will to be applied for the maintenance of the legatee during his minority. The executor commences so to apply it. This is an assent to the whole of the bequest.

(iii) A bequest is made of a fund to A and after him to B. The executor pays the interest of the fund to A. This is an implied assent to the bequest to B.

(iv) Executors die after paying: all the debts of the testator. but before satisfaction of speciﬁc legacies. Assent to the legacies may be presumed.

(v) A person to whom a specific article has been bequeathed takes posses- sion of it and retains it without any objection on the part of the executor. His assent may be presumed."

The section has created no problems and needs no change.

'Harm:/i \. Pupallal, (1912) I4 Bom. L.R. 732; l.L.R. 37 Bom. 2ll.

"fjliagendrii V. Khutranatli. (1922) l.L.R. 50, Cal. l7l, 175 to I77 (Mookerjee and Cuming ).

;}J. 7' 42.5. Section 334 reads-w Section"-

"334, The assent of an executor or administrator to a legacy may be condi- tional, and if the condition is one which he has a right to enforce. and it is not performed. there is no assent.

ILLUSTRATIONS

(i) A bequeaths to B his lands of Sultanpur, which at the date of the will, and at the death of A, were subject to a mortgage for 10,000 rupees. The executor assents to the bequest, on condition that B shall within a limited time pay the amount due on the mortgage at the testator's death. The amount is not paid. There is no assent.

(ii) The executor assents to a bequest on condition that the Iegatee shall pay him a sum of money. The payment is not made. The assent is neverthe~ less valid".

The section needs no change.

42.6. Section 335 reads :-- Section 335-' ' Assent of executor "335, (I) When the executor or administrator is a legtttce. his assent to to ms ow" leg"-V' his t)\\Il legacy is necessary to complete his title to it, in the same way as it is required when the bequest is to another person. and his assent may. in like manner. he expressed or implied.

(2) Assent shall be implied it' in his manner of adniinistering the property he does any act which is referable to his character of legatec and is not referable to his character of executor or administrator.

ILLUSTRATION "An executor takes the rent of a house or the interest of Government securities bequeathed to him, and applies it to his own use. This is assent."

The section needs no change.

42.7. Section 336 rtms as follows 2% Section 33b---- ' Effect of execut0r's "336. The assent of the executor or administrator to a legacy gives effect "sS°""

to it from the death of the testator.

ILLUSTRATION

(i) A legatee sells his legacy before it is assented to by the executor. The executor's subsequent assent operates for the beneﬁt of the purchaser and completes his title to the legacy. '

(ii) A bequeaths 1,000' rupees to B with interest from his death. The executor does not assent to his legacy until the expiration of a year from A's death. B is entitled to interest from the death of A".

This section also needs no change.

42.8. Section 337 reads as under :--r-- Section 337--

" Executor when to "337. An executor or adminisrator is not bound to pay or deliver any deliverlegacm' legacy until the expiration of one year from the testator's death.

ILLUSTRATION A by his will directs his legacies to be paid within six months after his death. The executor is not bound to pay them before the expiration of a year."

This section also needs no change.-

Scope.

Section 33S--~(;om-

menoement of _an-

nuity when no time tixed by will.

Section 339----L,om-

mencement of pc-

riodical annuity.

Section 340~------

Dates of successi\e payments when ﬁrst payment directed to be made within a given time or on a day certain; death of annuitant before date of payment.

Scope.

Section 341 .

Section 342~--ln--

vestment of general legacy to be paid at future time.

.344 CHAPTER 43 PAYMENT AND APPORTIONMENT OF ANNUITIES (SECTIONS 338 TO 340) 43.1. Payment and apportionment of annuities is dealt with in sections 338 to 340. The provisions deal with matters of detail. and need no introductory continents.

43.3. Section 338 reads :

"338. Where an annuity is given by a will and no time is ﬁxed for its com- mencement, it shall commence from the testator's death. and the ﬁrst payment shall be made at the expiration ol' :1 year next after that exent."

The section needs no change.

43.3. Section 33') reads :

"339. Where there is 1: direction that the annuity shall be paid quarterly or monthly, the tirst payment shall be due at the end of he first quarter, or first month, as the case may be, after the testator's death: and shall, if the executor or administrator thinks ﬁt. be paid when due. but the executor or administrator shall not be bound to pay it till the end of the year."

The section needs no change.

-$3.4. Section 340 reads :-----A "34(l (I ). Where there is a direction that first payment oi' an annuity shall be made within one month or any other division of time from the death of the tcstator, or on a day certain, the successive payments are to be made on the anniversary of the earliest day on which the will authorised the first payment to he made.

(2) ll' the annuitant dies in the interval between the times'ot' payment, an apportioned share of the annuity shall he paid to his representative,"

The section needs no change.

CHAPTER 44 INVESTMENT OF FUNDS TO PROVIDE FOR ILEGACIES (SECTIONS 341 TO 348)

44.1. Investment of funds to provide for legacies is regulated by sections 341 to 348. The sections deal with investment of various classes of legacies. management of annuities and contingent bequests and bequests of residue for life, time and manner of conversion and investment. and certain special situations such as that of a minor entitled to immediate payment or possession of hequest with no direction to pay any person on his behalf.

44.2. Section 341 I' "34-i. Where a legacy. not being a speciﬁc legacy. is elven for life, the sum bequeathed shall at the end of the year be invested in such securities as the Highv(?ourt may by any general rule authorise or direct. and the proceeds thereof shall be paid to the legatee as the same shall accrue due".

The section needs no change.

44.3. Section 342 reads:

"342 (I) Where a general legacy is given to be paid at a future time, the executor or administrator shall invest a sum suﬁieie-nt to meet it in securities of the kind mentioned in section 341.

reads .--------

.143 (2) The intermediate interest shall form part of the residue of the testators estate".

The section needs no change.

44.4. Section 343 reads as follows :~- S¢cu'on343_.p1--o¢¢. M _ , _ _ . _ _ _ dure when no fund :43. Where an annuity is given and no tuntl is cliarged with its pu)'l11€I'ltcha1-ged with, or or appropriated by the will to answer it. a government annuity of the appropriated to. speciﬁed amount shall be purchased, or, if no such annuity can be obtained, '""'"">'- then a'suni sutlicient to produce the annuity shall be invested for that purpose in securities of the kind mentioned in section 341."

The section needs" no change.

44.5. Section 344 reads .-- 5¢c1ion334-..

. . _ _ , Transfer to resi-

"344. Where a bequest is contingent, the executor or administrator is not duary legatee of bound to invest the amount of the legacy. but may transfer the whole residue.C0mingcnt bequest. of the estate to the residuary legatce, if any, on his giving sutlicient security for the payment of the legacy if it shall become due."

The section needs no change.

44.0. This takes us to section 345. It reads :-- semen 345-..

_ y _ _ lnvestm nt f "-

"34J. tl) Where the testator has bequeathed the residue of his estate to lldue bcqfmatiiedni-2;, person for life without any direction to invest it in any particular securities, life. without direc- so much thereof as is not at the time of testator's decease invested in seeu- ;,'z'l'l¥:iCl'l"'w'§'2V°~'_';'.'¥' rities of, the kind mentioned in section 341 shall be converted into money ' ' Cu" ':5' and invested in such securities.

(2,) This section shall not apply if the deceased was a Hindu. Muhani-madan. Buddhist. Sikh or Jaina or an exempted person."

The section needs no chaiige.

-14-.7. Section 346 reads :---A section 34(,_ "346. Where the testator has bequeathed the residue of his estate to a person for life with a direction that it shall be invested in certain speciﬁed securities, so much of the estate as is not at the time of his death invested in securities of the speciﬁed kind shall be converted into money and invested in such securities".

The section needs no change.

44.8. Section 347 provides that such CU1l\'€l'Sl()Il and investment as are con- Section 3474~Timc templated by sections 345 and 346 shall be made at such times and in such ""d.ma","°" '?l°°"' manner as the executor or administrator thinks lit: and until such conversion ',:;,S,',(_)" and "west' and investment are completed, "the person who would be for the time being entitled to the income of the fund when so invested shall receive at the rate of 4 per cent, per annum upon the market-value (to be computed as at the date of the testator's death) on each part of the fund as has not been so invested."

44.9. Section 348 reads :-- ScCu'0l134'8--A-Procc.

"348. (1) Where, by the terms of a bequest. the legatee is entitled to the ?5ur:ntvi:i]:Jeu',m?,?.; immediate payment or possession of the money or thing bequeathed, but mediate payment or is a minor, and there is no direction in the will to pay it to any person on Pmscsslog 0%, 1*' his behalf, the executor or administrator shall pay or deliver the same into ?£e,,Stt'(f'La;":0';,:$:

the Court of the District Judge. by whom or by whose District Delegate the son on his behaig probate was, or letters of adminisration with the will annexed were, granted, to the account of the legatee. unless the legatee is a yard of the Court of Wards.

(2) If the legatee is a ward of the Court of Wards_ the legacy shall be paid to the Court of Wards to his account.

(43) Such payment into the Court of the District Judge. or to the Court of Wards. as the case may he. shall he a stifﬁcient discharge for the money so paid.

Scope.

Section 349---Lega-

tee's title to produce of speciﬁc legacy.

246

(4) Money when paid in under this section shall be invested in the purchase of Government securities, which, with the interest thereon, shall be transferred or paid to the person entitled thereto or otherwise applied for his beneﬁt, as the Judge or the Court of Wards, as the case may be. may direct."

The section needs no change.

CHAPTER 45 PRODUCE AND INTEREST OF LEGACIES (SECTIONS 349 TO 355) 45.1. Sections 349 to 355 contain provisions relating to the produce and interest of legacies.

The provisions in sections 349 to 355. though apparently dealing with matters of detail. are based on certain broad principles. namely. that 2-~

(i) The legatee's title (subject to the provisions as to assent of the executor or administrator) is eﬁeetive from the date of the testators death, so that the "clear produce" of the legacy belongs to him from the date of such death; sections 349-350.

(ii) the right to demand payment of the legacy, however, does not ordinarily arise unless one year has expired since such death---a principle that explains the provisions (section 351. main paragraph and section 354) as to commencement of interest:

(iii) in certain exceptional cases, however, interest may start running before the expiry of one year : Section 349, exception, section 352 and section 355. These exceptional cases are based on the existence of circumstances from which a contrary intention could be reasonably inferred.

'l he rate of interest is dealt with in section 353.

45.3. Section 349 reads as under :--

"349. The legatee of a speciﬁc legacy is entitled to the clear produce thereof. it any_ from the testator's death. ' Iixccption A specific bequest, contingent in its terms. does not comprise the produce of the legacy between the death of the testator and the vesting"

of the legacy. The clear produce of it forms part of the residue of the testator's estate.

. ILLUSTRATION

(i) A bequeaths his ﬂock of sheep to B. Between the death of A and delivery by his executor the sheep are shorn or some of the ewes produce lambs. The wool and lambs are the property of B.

(ii) A bqueaths his Government securities to B, but postpones delivery of them till the death of C. The interest which falls due between the death of A and the death of C belongs to B, and must, unless he is minor, be paid to him as it is received. '

(iii) The testator bequeaths all his four per cent, ('uoxernment promissory notes to A when he shall complete the age of l8. A. if he completes that age, is entitled to receive the notes, but the interest which accrues in respect of them between the testator's death and A's completing l8. forms part of the residue".

The section needs no change.

247

45.3. Section 350 p1'ov"i(ics that the lcgatec under it general residiiary bequest Section 350--Resi- is entitled to the produce of the residuary fund, from the testatoris death. The duary Legateefs title exception to the section lays down that a general resjduary bequest, coiitii1gent:f:la"r:°;1l]"n°3' OF res"

in its térms. does not Comprise the income which may accrue upon the fund ' "

bequeathed between the death of the testator and the vesting of the legacy. Such income goes as undisposed of.

The illustrations are as under :w--

(i) The testator bequeaths the residue of his property to A a minor, to be paid to him when he shall complete the age of 18, The income from the testator's death belongs to A.

(ii) The testator bequeaths the residue of his property to /\ when he shall complete the age of 18. A, if he completes that age. is entitled to receive the residue. The income which has accrued in respect of it since the testa- tor's death goes as undisposed of."

This section also needs no change.

45.4. While the last two sections were concerned with the produce of section 351__,]mc_ property_ the next four deal with interest, Section 351 provides as follows :-- rest when no time _ e _ ﬁxed for a merit "351. Where no time has been tixed tor the payment of a general legacy, of general lggzcy. interest begins to run from expiration of one year from the testator's death. lf~Lx'ceptioii--( 1) Where the legacy is bequeathed in satisfaction of it debt, interest runs from the death of the testator.

(2) Where the testator was a parent or a more remote ancestor of the legatee, or has put himself in the place of a parent of '.ilC legatee. the legacy shall bear interest from the death of the testntor.

(3) Where a sum is bequeathed to a minor with a direction to pay for his maintenance out of it. interest is payable from the -.leath of the testator."

45.5. The second exception to section 351 requires some comnients. Accord- Section 35] mg to the practice of the Chancery D1VlS10n in England,' a minor 'who 1S entitled second Excepn-my under the Will of his parent, etc. to a legacy contingently on his attaining his origin. majority is entitled, during minority, to maintenance out of the income of the legacy. This is the basis of the second exception to section 351.

45.6. Unlike the third exception to section 35l_ the second exception to seem," 351_ section 351 is not conﬁned to minors. In this respect, the English Law is different, second exception- the corresponding exception being conﬁned to minors.'-' It is also to be noted 99090 that the second exception to section 351, unlike section 352_ does not exclude cases where :--

speciﬁc sum is given by the will for maintenance or . . . the will contains

2| direction to the contrary."

Some of the commentators have stated that the second exception is taken from an English case." but that case was one of a minor, 45.7. The solicitude shown by the law for the case' dealt with in the Positionofsp0use--

second exception to section 351 should, we think, be extended also to the R'=°°mm°"d3"°"5- spouse of the res/azor. At present. the legacy to spouse does not carry interest until a year from the death. where no time is ﬁxed for payment This is also the English laws' But justice requires that the law should be changed.

We recommend accordingly.

45.8. Section 352 reads :-- Seem," 352__[me_ "352, Where a time has been ﬁxed for the payment of a general legacy, r°9'Wh€MI'meﬁXed- interest begins to run from time so ﬁxed. The interest up to such time forms part of the residue of the tcstatorfs estate.

'Halsbury. 4m Ed.i\/ol. 17, page 641. para 5125573.

'Stem \'. R0/iiiimri, I2 Vex". 461.

='W.~'/mu V. .l/Im/iwm. (1843) 2 Y & C Chancery cases 372.

'Cf. the facts in Ru/am' KIIIII v, /\':'/m. 34 Bombay Law Reporter 1 I24. A..l.R. 1932 Bomba_\

506. 5Halsbury, 4th Ed. Vol. I7. page 64], para 1256.

248

/;'.tt'a'/)u'Un'--A--\Vhere the testator was a parent or it tnorc remote .lllCC.\lUI' of the legatee. or has put himself in the place of a parent of the legatee and the legatee is a minor, the legacy shall bear interest front the death of the testator, unless a speciﬁc sum is given by the will for maintenance. or unless the will contains a direction to the contrary."

The section needs no change.

Section 353---Rate 41.5.9. Section 353 reads as under :--

of Interest.

"353. The rate of interest shall be four per cent per annum in all cases except when the testator was Hindu, Muhammadan, Budhist, Sikh or Jain or an exempted person. in which case it shall be six per cent per annum."

Recommendation 45.10. The rates of interest laid down at present-----four per cent and Six '0 'C"i5°5°°"°" 353-per cent respectively----nced to be revised in the light of present day conditions. The rate now should be uniform and at least twelve per cent in every case. Power may be given to the court to ﬁx a different rate for special reasons. to be recorded. We recommend that section 353 should be revised accordingly. The following is a suggested redraft of section 353.

Rt*vi.s'ed Sertiorz 353 :

"353. The rate of interest shall be twelve per cent per annum in all cases. except when the court. for special reasoris to he -rectvrded, ﬁxes (1 diﬂerwtt rare."

Section 354#N0 45.l 1. This takes us to section 354, which provides that no interest is pay-

""°'°5' f"' ms' able on the arrears of an annuity within the first year from the death of the year' testator, although a period earlier than the expiration of that year may have been ﬁxed by the will for making the ﬁrst payment of the annuity This section also needs no change.

Rggofnmendation, 45.12. The langmage of section 354 is slightly defective. Although (as provided in the section) annuities do not carry 1ntere_st within the first year even though an earlier time may have been ﬁxed for payment, it is not intended that no interest shall be paid, for the subsequent years. The position as regards the

-period after one year is governed by section 352. This point was settled after some debate in the Calcutta High Court". and is worth codiﬁcation. To achieve this object. we recommcn_d the addition of the following Explanation to section

354.--

"Explanati(;n----NOI/ting in I/zis .wc'ti0n s/tall affetv interest udmi.s5/'ble under .\t'(:Ii0r1 352."

Section 355~lnte- 45.13. Section 355 lays down that where a sum of money-is directed to '.'°5' °" 5"m '0 b°be invested to produce an annuity. interest is payable on it from the death of invested to produce the testamr' annuity.

The section needs no change.

CHAPTER 46 REFUND OF LEGACIES (SECTIONS 356 T0 367) I. Preliminary 5 scope. 46.]. Sections 356 to 365 deal With the refund of legacies in case of assets proving insuﬂicient to pay all the legacies or in certain other cases. Sections 366-307 deal with certain other matters pertaining to the distribution of assets. 'Cf. Halsbury, 4th Ed. Vol. l7. page 64l. para l255 and Wilsnnv. .Maddison. H843) 2 Y & C Ch. Cas 372.

3.S'hrimatiBa1im' Bala V. Administrator General of Bengal. Reported in Times of India 22nd June, 1939. page 14, quoted in Paruck, Succession Act (1977). page 781.

249

It should be noted that section 307 (transfer of assets to a foreign executor)' stand in a class by itself and will require detailed discussion. As will appear lrtam sections 356 and 357, there is a tlit'r'erence in the position as regards voltintary payments and other payments, ll. Refund

--lo.2. Section 356 provides that when an executor or adinillislrutor has Section 356----Rc~ paid a legacy under the order of a Court, he is entitled to call upon the legatce to fund Of 16380' Paid refund in the event of the assets proving insuﬂicicnt to pay all the legacies. The 33:; C°""'~' section thus confers power to call for relund in case of a payment under the ' order of a court. It needs no change, not having created any problems 46.3. Section 357, presenting a contrast with section 350, provides that when section 357_ an executor or administrator has voluntarily paid a legacy, he cannot call upon it legatce to refund, in the event of the assets proving insuflicient to pay all the legacies.

The section needs no change.

--'.o.4. Section 358 provides that when the time prescribed by the will for Section 358----Rc- the performance of a condition has elapsed, without the conditions having been fund When legacy i'.t:l'l0l'lllcLl. and the e,\t:eti=.or or administrator has thereupon, without fraud, g::f(?r°rf1?l';':ed"';f°"

distributed the assets. in such a case, it further time has been allowed under condition within section I37 for the performance of the condition, and the condition has bcenfurtliertimp allowed perlornietl accordingly, the legacy cannot be claimed from the executor or ""d°' 5°°"°""7- L1ClIl1lI1l.'3.ll'3l0l'. but those to whom he has paid it are liable to refund the amount.

fhe section needs no change, not having created any problems.

46.5. Section 359 lays down that when an executor or administrator has Section 359------whcn paid away the assets in legacies, and he is alterwards obliged to discharge a debt "Ch '°3""¢° C017)' . . y . .' . _ pellable to refund in of which he had no previous notice, he is entitled to call upon each legatee to pmpom-on_ refund in proportion.

This section also needs no comments.

-16.6. Section 360 reads as under: Section 360----distri- bution of assets.

"300. Where an executor or admiiiistrator has given such notice as the High Court may. by any general rttle, prescribe or. if no such rule has been made, as the High Court would give in an administration--suit, for creditors and others to send in to him their claims against the estate of the deceased, he shall, at the expiration of the time therein named for sending in claims, he at liberty to distribute the assets. or any part thereof, in dis- cliarge of such lawful claims as he knows oi", and shall not be liable for the assets so distributed to any person of whose claim he shall not have had notice at the time of stich distribution 2 Provided that nothing herein contained shall prejudice the right of any cre- ditor or claimant to follow the assets, or any part thereof, in the hands of the persons who may have received the same respectively".

lhe section needs no comment.

--l(,-.7. Section 361 provides that a creditor who has not received payment 0" Section 36l--Credi'- his debt may call upon a legatec who has received payment of his legacy to '°' ma)' °3""P°"

refund, whether the assets of the testator's estate were or were not sufficient at I°ga'°° '9 '°f""d' the time of his death to pay both debts and legacies : and whether the payment of the legacy by the executor or administrator was voluntary or not, The section needs no change. The contest here is between an unsatisﬁed creditor and satisﬁed legatees. The next two sections deal with a contest between legatecs.

'Para 46.13, et. seq. infra.

250

Section 362----Wheu 46.8. This takes us to section 3tv3. \\'lllCll reads as under :----

legatee, not satisﬁed _ _ _ or compelled to.re- "S62. If the assets were sufficient to satisfy all the legacies at the time fund "Dd" 5°°".°" oi' the testator's death, 3 legatce who has not received payment of his legacy,

3): $':'i'2i"?[: f?}']h,g§ or who has been compelled to refund under section 36!, cannot oblige one I-efund_ who has received payment in full to refund, whether the legacy were paid to him with or without suit, although the assets have subsequently become dtlicieiit by the wasting of the executor."

The section needs a verbal change namely, the last four words should read "wasting on the part of the executor".

, 46.9. Section 363 provides that if the assets were not sutﬁcient to satisfy §l';°'S';?i'S'ﬁc3d63];;"a1}:,':' all the legacies at the time of the testator's death, a legatee who has not received must ﬁrst proceed payment of his legacy must, before he can call on a satisﬁed legatee to refund. against executor. ifﬁrst proceed against the executor or administrator if he is solvent, but if the 5°"'°'"' executor or administrator is insolvent Or not liable to pav. the unsatisﬁed legatee can oblige each satisﬁed legatee to refund in proportion.

The principle underlying the section is that where assets are insuﬂicient to pay all the legacies, the executor must satisfy the legacies proportionately'. So, if the legatee has been paid nil. he must have a right of action against the executor.

The section needs no change.

gwion 354_Limu 46.10. Section 364 provides that the refunding of one legatee to another to refunding of one shall not exceed the sum by which the satisﬁed legacy ought to have been reduc- '°33'°° "' ""°"'°" ed if the estate had been properly administered.

The illustration to the section reads as under :--

"A has bequeathed 240 rupees to B, 480 rupees to C, and 720 rupees to D. The assets are only 12,00 rupees and, if properly administered, would give 200 rupees to B, 400 rupees to C, and 600 rupees to D. C and D have been paid their legacies in full, leaving nothing to B. B can oblige C to refund 80 rupees, and D to refund 120 rupees."

The section needs no change, not having raised any difficulties.

Section 365__re_ 46.11. Section 365 provides that the refunding shall in all cases be without funding to be wm,-interest. The section needs no change.

out interest.

lll. Distribution

- _ -_ 46.l2. Accordinu to section 366, the surplus or residue of the decead's Section 366 Resi c _ , _ due after usual pay- property, after payment of debts and legacies, shall be paid to the residuary ments to be paid tolegatee when any has been appointed by the will. residuary legatee.

This section also needs no change.

IV. Transfer of assets to foreign executor or administrator Section 367__.pel-_ 46.13. Withsectioit 367, we enter an area somewhat different from that to son.not domiciled which the preceding few sections belong. There is a foreign element introduced '°"V'"9 Nels' which gives the section a theoretical interest of its own. Let us quote the sec-

tion: , .. _._ "367. Where. a person not having his domicile in India has died leaving assets both in India and in the country in which he had his domicile at the time of his death, and there has been a grant of probate or letters of administration in India with respect to the assets there and a grant of ad- ministration in the country of domicile with respect to the assets in that country, the executor or administrator, as the case may be, in India, after having given such notices as are mentioned in section 360 and after having discharged, at the expiration of the time therein named, such lawful claims as he knows of, may instead of himself distributing any surplus or residue of the deceased's property to persons residing out of India who are entitled thereto, transfer, with the consent of the executor or administrator, as the case =0: é. 36s:

251

nia} be. It] the LlULll1[l'_V of tiomtcilc.. the surplus or rcstdut to him tor Lll.Slt'I~ button to those persons."

~t.h,|4, The subject matter oi' the section is oitlitiarilx klL'i,tll with in the text-- "\/i"."'i '""l .i§"°"' ' _ _ __ \. > _ . . . . .. -- my administra-

nooks undu anullat) Administration. ,;L,,,_ The position regardin;__v 'main and ;mcillar_\" administrzitioii has been lucidly stated by W0lﬁ"--~ "Ihe jurisdiction or' the English court is not txclttsive in respect either of administration or of succession, Administration may take place in more than one country. In such a case the main administration lies in the country where the deceased had his last domicile_ or. in the case of renvoi from the domicile to the national lam'. in the couitr;t' of which he was 3 subject.

The administration in any other country is only 'ancill-ary'. Therefore_ it' the main administration is abroad. and there is anciilary administration in England. the duty ol' the English adrninistration is only to administer the goods situate here. to collect the debts which are by l,{a_t;lish law deemed to have an L-nglislt situs, to pay the Eitglish debts and ztil foreign liabilities of which he has notice. and ultimately to hand airy surplus to the main adtninist1"tttor"_ unless the English court exercises its discretion to the effect that the payment has to be made direct to be l7L.'li€ilCi't:t'lQ5.il 4-l6.l5. Section N17 is sttl'-stziiitially bus«:d on the same approach and is aijhpiiélﬁigd' sound as far as it goes. But its scope should be c\'panded to cover cases where in mum", other the foreign country is one other than the countr_\ ot domicile. than counii-_\ or do-

micile.

At present. section 367 does not deal with the case where the foreign execu- tor or administrator was appointed in a country U.'/L-"I' than the L'Ul(}t{I'_\' of d<mtt'cilt'. Theoretically. such a situation can arise if a foreign country has. in its law regu- lating the grant of probate or administration. a provision which confers jurisdic- tionon its courts if some property is situated within its jurisdiction", Apparently, this situation has been considered to be too rare to deserve a speciﬁc provision in our Act. 'ff.' It may be noted that with reference to section 270 the existence of property within the jurisdiction is enough_ subject, of course. to the discretion of the court under section 271'.

Need [or amend-

4().lb. It appears to us that such a case should be provided for by an mcm.

express provision. even though it mag." not be very frequent In the absence of :1 speciﬁc provision, the executor or ztdministrator that: be at a loss to decide what to do with the balance. With the pernlission of the CUHI1. he should have power to take action under the section in such cases also.

. . , ._ . _ Recommendatioti 40.17. In the light oi tie aboxe discussion. we reconimend that section mre\i5esec¢im~,367_ 367 should be revised as under :* Ifetiseu' Sec'/to/I 367.

"367. ll) Whert>--

la') é'. p:'t'.~.4>n not having his domicile in India has died leaving assets both in India and in the cotintry in which he had his domicile at the time ol' his death. and lb) there has been a gr-attt oi' probate or letters ot' administration in India with respect to the assets in i'.r':t,-W' "tllii 'I };!':'tt€ of :l'lt1"lll'1iSU'EiIl()I1 in the Country of domicile with respect to the assets in that country,

--\\'oltl'. I'rE\ate Iiitwnationttl l.;l".\ H950). page (ton. p-'.tl'=.t SK'.

'~'ln re .-lt'/Ii/t'npo/1/m'. (l9_'.t'<i I (it. -133. -345.

"'('omparc section 270. Indian Succession Act.

'In the imnrer n/'rI.vr Will 0!" Rtmit'/mml, -'\,I.I{. [95-5 Um/. 174. "The existing word "there" l'C1lll_\ means' in India".

85»L/B(Dll44.\1oILJ&CA_ ~17 Scope of section 367----after proposed amendment.

Scope of sections 368 and 369.

Liability of_execu-

tor or administrator for devastation.

Liability of execu-

tor or administrator for neglect to get any part of property_ 252 the executor or administration, as the case may be, in India, after having given such notices as are mentioned in section 360 and after having discharged, at the expiration of the time therein named, such lawful claims as he knows of. may, instead of himself distributing any surplus or residue of the deccased's property to persons residing out of India who are entitled thereto. transfer, with the consent of the executor or administrator, as the case may be, in the country of domicile, the surplus or residue to him for distribution to those persons.

(2) Where there has been a grant of administration in a country other than the country of d0micile and other than India, the e.\'eCut0r, or adminis- trator may, with the permission of the Court, take the same action as he could have taken if there had been a grant in a country of domicile other than India and the provisions of this section shall, with necessary modiﬁcations apply to the case as they apply if there had been a grant in a country of domicile other than India."

46.18. By way of anticipating certain possible objections to the proposed extension of the scope of section 367. we may state that the provisions of the section, even after the proposed amendment, would be conﬁned to a person not domiciled in India. Secondly, the provision, in so far as its scope is to be extended, will apply only subject to the permission of the Court. The Court, in granting permission, will certainly satisfy itself that the transfer of assets to' the foreign executor or administrator under the section would be in the interests of justice. It is better to keep the matter elastic as above, rather than tie down the hands of the Indian executor or administrator or fetter the discretions of the Court by insisting upon the requirement of reciprocity or other rigid criteria.

CHAPTER 47 LIABILITY OF AN EXECUTOR OR ADMINISTRATOR FOR DEVASTA} TION: SECTIONS 368 AND 369 47.1. Liability of an executor or administrator for devastation is dealt with in sections 368 and 369, which needs no introductory comments.

47.2. Section 368 reads:

"368. When an executor or administrator misapplies the estate of the deceased, or subjects it to loss or damage, he is liable to make good the loss or damage so occasioned.

ILLUST RATIONS

(i) The executor pays out of the estate an unfounded claim. He is liable to make good the loss.

(ii) The deceased had a valuable lease renewable by notice which the executor neglects to give at the proper time. The executor is liable to make good the loss.

(iii) The deceased had a lease of less value than the rent payable for it, but terminable on notice at a particular time. The executor neglects to give the notice. He is liable to make good the loss".

The section needs no change. not having raised any serious difficulties. 47.3. Section 369 reads--

"369. When an executor or administrator occasions a loss to the estate by neglecting to get in any part of the property of the deceased, he is liable' to make good the amount. .

253

ILLUSTRATIONS

(i) The executor absolutely releases a debt due to the deceased from a solvent person. or compounds with a debtor who is able to pay in full, The executor is liable to make good the amount.

(ii) The executor neglects to sue for a debt till the debtor is able to plead that the claim is barred by limitation and the debt is thereby lost to the estate. The executor is liable to make good the amount."

This section also needs no challgg;

CHAPTER 48.

SUCCESSION CERTIFICATES (SECTIONS 370 T0 390) l. Prelinzinary 48.1. Sections 37()--39U deal with succession certiﬁcates. Under section 370, a succession certiﬁcate cannot be granted in respect of any debt or security to which a right is, by section 212 or 213. required to be established by letters of administration or probate. There is an exception provided in the case of a deceased Indian Christian.

The pmeedure for making an application for a succession certi1icate._ and the Court to which it should be made, are dealt with in sections 37] to 373 and (where applicable), in section 388. The contents of the certiﬁcate are provided for in secton 374. Under section 375. the Judge may require security from the grantee of the certiﬁcate.

. The form of the certiﬁcate and "extensions" thereof are regulated by sec- tions 376 to 377'. Amendment of the certiﬁcate in respect of powers of the holder as to securities is provided for in section 378. Fees on certiﬁcates are to be paid as laid down in section 379.

The extent and etfect ol certilicates are dealt with in sections 380--382 and 387. The effect of previous certificate is dealt with in section 385. revocation in section 383 and appeals in section 384.

Section 386 validates certain payments made in good faith to the holder of an invalid certiﬁcate. which has to be delivered to the court as laid down in section 389. Section 390 dcals with certain provisions regarding the exhibition of inventories and accounts with respect to Bombay Regulation VIII of 1827.

These sections will now be dealt with in detail below_ ll. Succession Certiﬁcates---Grant of

48. 2. Section 370 reads----

"37O (1) A succession certificate (hereinafter in this Part referred to as a Certiﬁcate) shall not be granted under this Part with respect to any debt or security-to which a right is required by section 212 or section 213 to be established by letters of administration or probate:

Provided that nothing contained in this section shall be deemed to prevent the grant of a certiﬁcate to any person elziiming: to be entitled to the eﬂects 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.

'See Eighth Schedule.

Sections 370-390 -7 Scheme.

Section 370. Res-

triction on grant of certiﬁcates under this Part.

('2) For the purposes of this Part. "security" means--

(a) any promissory note, debenture, stock or 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:

to) any stock or debenture of, or share in. a company or other in-

corporated institution:

(d) any debenture or other security for money issued by, or on behalf of. a local authority;

to) any other security which the State Government may, by notiﬁca-

tion in the Official Gazette, declare to be a security for the purposes of this Part."

Recommendation 48.3. Sub-section (2). clause (by) of section 370 seems to be obsolete and (';)(t"')' 5°""°" 37°should be deleted. We recommend accordingly.

Need for change of 48.4. Section 370 bars the grant of a succession certiﬁcate, inter alia, in 5"b9""'°€~ cases where letters of administration (or probate) are mandatory, Letters of administration are mandatory in the case of Christians other than Indian Chris- tians dying intestate'-*to mention the most usual situation. We are of the view that this restriction is not required except where probate is mandatory. The bar in section 370 should be limited only to cases where probate is mandatory. In the case of probate, the will has to be proved and it is understandable that without proof of the will, payment should not be made on the strength of a mere succes- sion certiﬁcate. But this reasoning does not apply with the same forceto letters of administration, where title is sought to be derived on the basis of a right of inheritance conferred by law and no formal writing is to be proved in general.

Recommendation ,- 48.5. Accordingly, we recommend that section 370(1) should be revised as to section 370(1) as under ._ ( l) A succession Certiﬁcate (hereinafter in this Part referred to as a certi- ficate) shall not be granted under this Part with respect to any debt or security to which a right is required by section 212 or section 213 to be established by . . . . .. probate. (Existing Proviso to be omitted as a con- sequential change). ' Survivorship under 48.6. We are also of the view that there should be a provision for the Section 370- grant of certiﬁcate on survivorship.

By making this amendment, the legislature would be merely giving recogni- tion to what is already the practice!-3 in some parts of India.

48.7. Although a certiticatc. issued to certify survivorship should be des- cribed as "Survivorship certiﬁcate". we do not propose to chage the present nomenclature (succession certiﬁcate"), since it has. by now. become familiar to all concerned.

Recommendation 48.8. Accordingly, we recommend that the following proviso should be to add further pr0- added to section 370(1) :

viso to section 370(1). "Provided that nothing contained in this section shall be deemed to pre- vent' the grant of u certiﬁcate to any person claiming to be entitled to slavi- vorship to the effects of a deceased Hindu, Mohammedan, Buddhist, Sikh, Jain or Parsi or to any part thereof, with respect to any debt or Security by reason that the right thereto is claimed by survivorship and not be Suc- cessionf"

'Slectibn 212 (1).

"B(mwuri \-'. Makruda. A.l.R. 1930 All. 99.

'See also para 34. 14, supra.

'Existing provisste is to be omitted; para 48 . 5, supra.

255

ll]. Jurisdiction

48. 9. This takes us to section 371. which reads as under I SW50" 37* "371, The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at the 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-" I ' -cal '. "lit Section 371 thus lays down two alternative criteria for jurisdiction----(i) residence or ('ii) existence of assets. But primacy is given to the ﬁrst; the second applied only if the ﬁrst is not satisﬁed. How far the present criterian should be retained, is one of the matters that will need cpnsideration 48.10. Although domicile determines the law applicable to succession to Domicile not adop. movables and situs determines the law applicable to immovabies, the law does ted 3521 test. not follow the same principles in regard to jurisdiction to grant a certiﬁcate, 48.11. English textbook writers' state that the jurisdiction of the old eccc1-- English and Com- siastical courts (of which the modern probate court is the successor) was uni-- monwealih law- versally founded upon the situation of movable-s belonging to the deceased.

11 would appear that jurisdiction in probate in other countries of the Common- wealth also mostly depends not on domicile, but on the existence of local assets?' "3 48.12. Such a rule' is a direct descendant of the rules regulating the jut'-is-, Genesis, diction of church authorities under the old eccelsiastical law'.

48.13. This aspect of the matters was considered by us whilst discussing" Need for examina- section 270, which deals with jurisdiction to grant probate, but no change lion Oflhe Position- in that section was recommended on this point, as no practical diﬁiculty had been experienced. In regard to section 371, however, some obscurity has arisen because the words used in the section are----"if at that time he had no ﬁxed place of residence," without indicating whether the ﬁxed place of residence shoyldvbe in India or may be aI1y._where in the world.

Judicial decisions reveal a certain amount of conllict. According to the majority view, after the words, 'in question', the words 'in India' should be read. Thus, if a person is not domiciled in India, then his case would be covered and the District Court would have jurisdiction on the basis of assets within its local limits, notwithstanding that he has a ﬁxed place of abode outside India.

This View has been taken by the High Courts of Allahabad7 Calcutta", Lahore', and Madras".

48.14. The other view is taken in at Bombay case ". This was decided with reference to the Succession Certiﬁcate Act 27 of 1860. Section 3 of that Act contemplated the issue of a certiﬁcate for a British subject either resident in the district where the certiﬁcate is sought, or else, having no ﬁxed place of residence. The deceased in that case was a resident of Baroda, (outside British India) and had died there. The High Court observed "the representation of Conﬂict of views.

'Cheshire, Private international Law (1970) , page 580.

"WoliTe, Private International Law (1950), page 657.

'Sykes and Pryies, Australian Private International Law (1979), page 442.

'In the Goods of Tucker, (1864) 3 Sw. & Tr. 585; 164 ER. 1402.

3In the Goofs ofCoode, (1867) LR. l P. & D. 449.

'See Chapter 34, supra.

'Goswami Gopul Lalji v. Goswami lat' Laljr'. (I885) 5 Allahabad Weekly Notes. 'Re. Kanju Abdul Rasool, 54 C.W.N. 826.

'.4mar Natl: Singh v Sham Sing/z, A.I.R. 1935 Lahore 646.. '°Kn'sIma Ammo! v. Lakshmi' Ammal, I.L.R. (i950) Mad. 718. 726, 727. 728, 735. ".Mir Abrahim V. Zialunissa. (1888). I.L.R. 12 Born. 150 256 such 'a person would properly be sought in the country he belongs to and the constituent he represented would then sue or empower someone to sue in the court. _The Act does not make provision for the administration of ihe eﬂ£'Ci\' of a foreigner do/riiciled abroad", Practical approach 48.15. For the present purpose. it is unnecessary to discuss which of the to be adorned two 'views now summarised above is correct. Practical considerations, however. require that the first View should be adopted. That is the general practire in the Commonwealth also, and creates no serious problems as such.

Some writers have expressed the apprehension that this would mean that may. be parallel proceedings in the two countries. This, however, is a rare possibility. Generally. the other country also would grant administration only where the assets are within the jurisdiction of the competent court of the country'.

Moreover. it would be dilﬁcult for the court in one country to hold an en- quiry into the truth or otherwise of an allegation that the deceased has had his ordinary residence in some remote corner of the world.

Sections 270 and 48.16. it may be noted that the corresponding provision regarding grant 371¢ompa,ed_ of probate etc.--section 270--is more speciﬁc. Under that section, the District Judge has jurisdiction it' the deceased at the time of his death "had a ﬁxed place of abode or any property movable or immovable within the jurisdiction of the District Judge". Disparity between section 270 and section 371 seems to have arisen because the two provisions are drawn from two diﬁerent earlier Acts, relating to probate and succession certiﬁcate respectively. There is no need to have any such disparity.

Existence of assets_ 48.17. There does. o1'_course,. remain the question whether_thc assets Gracia, point of should have been within the jurisdiction of the District Judge at the time of death time. or whether they should be within the jurisdiction at the t_ime when the application for succession is made. At present, the second course seems to have been adopted in the section, while the re--'draft recommended by us? adopts the ﬁrst course following the pattern of section 270. We have deliberately made a departure in this regard, since we are of the view that there should, as far as possible. be uniformity in the provisions relating to jurisdiction to grant probate: etc. (section 270) and jurisdiction to grant a seccession certiﬁcate (section 371,). In section 270, the ﬁrst course has been already adopted. and we would prefer to follow the same pattern in section 371 also.

Existence of assets 48.18. Another question that needs to be. considered in connection with 'within 1,,di,,_,,,,,,,_section 371----and also in connection with section 27()--is whether'. for the ther necessary. grant of succession certiﬁcate (or probate), it is necessary that some assets should be situated within India. The section does not, of course, so require, but a view' has been expressed that such a requirement is implicit in the section. having regard to the practice that existed in England before the passing of the Adminis-- tration of Justice Act. 1932 which made a slight modiﬁcation by giving a dis- cretion to the court in certain cases'; It has also suggested judicially' that the position should be changed in India on the same lines as it has been done in 1932 in England.

48.19. Havinv even our careful consideration to the matter, we are of the 33:: 1331;, news' View that it is bCltL£:.l'¢ll10l, to make any verbal change in the section on this point. ' In general. where statutory provisions on a particular matter in C0Jlﬁ€d 18W on a particular subject are speciﬁed, courts in India do not seem to super-

impose any requirement on the basis of English practice or rules of private international law. So far as we have been able to gather from the other reported decisions on sections 270 and 371. a requirement that there should be assets in 'Cf. Para 48.12, supra.

"See para 48.20. infra.

'Point relevant to section 270.

'Kalyani Kulti v. Gauri Kutti, A.l.R. 1953 Travancore-Cochin 252. "Kalyani Kutti v. Gauri Kutti, A.l.R. 1953 T.C. 253.

257

India has not been read into the section. In the circumstances, we do not consider it proper to make a change in the section, so as to throw a doubt on the width of jurisdiction exercisable under the section as it has been generally under- stood.

48.20. ln the light of the discussion in the earlier paragraphs'. we recom- Recommendation mend that section 37] should be revised as follows: "N0 S°°'i°9 371- "37l. The District Judge within whose jurisdiction the deceased, at the time of his death, had a ﬁxed place of abode, or any property, movable or immovable, may grant a certiﬁcate under this part."

IV . Procedure.

48.21. This takes us to section 372, which reads as under 2-

"372.(l) Application for such a certiﬁcate shall be made to the District i°§:,'1'i'c']a,3ig,--f;,r Judge by petition signed and veriﬁed by or on behalf of the applicant incertiﬁcate. the manner prescribed by the Code of Civil Procedure, for the signing and 5 of 1908. verﬁcation of a plaint by or on behalf of a plaintiff, and setting forth the following particulars. namely :--

(a) the time of the death of the deceased;

(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits;

(c) the family or other near relatives of the deceased and their res-

pective residences;

(d) the right in which the petitioner claims;

(e) the absence of any impediment under section 370 or under any other provision of this Act or any other enactment, to the grant of the certiﬁcate or to the validity there of if it were granted; and (1') the debts and securities in respect of which the certiﬁcate is applied for. -

(2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that person shall be deeemed to have committed an offence under section 198 of the 45 ofl860. Indian Penal Code.

(3) Application for such a certificate may bemade in respect of any debt or debts due to the deceased creditor or in respect of portions thereof".

48.22. With reference to this section (section 372), there seems to be a conflict of decisions on the question whether, the word "debt" includes movable Mganing of subt- property that has been pledged, In a Bombay case2, the question arose whether in section 372. a succession certiﬁcate could be granted in respect of gold or ornaments pledged by the deceased with a bank. It was held that the pledgee's obligation to return to the pledger's heirs the pledged movable property was not a 'debt', as it was not a speciﬁc. or ascertained or liquidated sum of money, A similar View had been taken in a Patna case?

However, an Allahabad judgment* takes a different view in this regard.

We have discussed the matter under section 214', and need not repeat here the points made in that discussion.

'Para 48.16. supra.

'lkanchhoddas Govinddas Bmzatwala, (1976) 78 Born. L.R. 219. 233.

"Sham Sundar Devv Sarti Devi, A.l.R. 1962 Part 220. 'Dina Nath V. Balkrishna, A.I.R. 1963 All 46.

'Paragraph 34. 14, supra (SCC1i0n 214) 258 ~[S;:t;<:tteiI<])(1;in37l2}:tl2l(tjZ'1lCi_ 4l8.2.2/\. The Delhi Hindustani Mercantile Association. in its comment on my of gsuccessiontlie Working Paper oi the lgtm ('ommission on the Act. has ollcred the followiiig certiﬁacte to pro--»'1'L~'l~V-'l1'"'- 3"' perties other than :16l]>3fS-(((S'%Cl(1j0n 3~"('=\ "We ina). stigagcst that .\ll¢..'Ci'».\'l0il ecrtilicates should not be limited to debts 0 5" 6 " payable to the deceased. but should extend to an pt't)p€1'tl€S left by him without 'will. Siinilurly, pending the grant of such a certiﬁcate, an ad- ininistnttioii suit lies. but such a suit can be filed only by creditor, A suit? like this shotild be permitted to be ﬁled hr ('l'('lI the /IPI-l'.\'!."

lhe purport of the comment is not very clear, but it would appear that the intention is that the facility of succession certificate should be extended to properties other than "debts" also. At present, section 372(1) (f) conﬁnes suc- CCSSi0n CCrIiﬁCIltC.\ to debts. Although the suggestion does not say so. presumably the intention is thi.s--~--in cases where "administratioii" of the estate is not con-- iciiiplated, and all that is contemplated is that some kind of jiulicial miiﬁrnititioii of a person being the heir to the property is needed, the law should provide such a facility. Such Ll facility in-ay be of use in connection with dealings with public oiiices, where the question of succession to a particular property is in issue and the public oﬁice concerned wants some such conﬁrmation, Utility of suggested 48.22B. We regard this as an important suggestion, if the reasons tinderly--

amendment' ing the suggestion (which are not stated in the letter of the Association) are what we have surmised above. There do arise. in practice, occasions when title to property other than debts may have to be established before public authorities and if a court is given power to issue such a certiﬁcate, it would certainly prove to be of Lise. At present. the object can be achieved by the somewhat more cumbersome proce<.lure w n declaratory suit in which the claimant can seek a declaration about his title-a title based on testamentary or intestate succession. Of course, the claimant filing a declaratory suit is expected to show that there is some kind oi" *'c'ioti»"" on his title. If there is no controversy between "rival heirs". a declaratory still may not be quite appropriate. The suggestion for extending the facility or succession certiﬁcate to property other than debts has therefore a practical utility. 'l'heore.tically also. there seems to be no obiec- tion in principle to such an amendment of the Act.

section 386A m be 48.22C. No doubt, such an amendment would require extensive amendments inserted. in several sections of the Act. This task could be left to the draftsman--though we do have a suggestion which may probably avoid an amendment of too many sections of the Act. What we have in mind is the insertion of a short section. say, as section 386A----which will provide' that the provisions of section 370 to 385 shall, so far as may be, and with necessary modiﬁcations, apply_ in rela-- tion to property other than debts, as they apply in relation to debts, Se t. 372 48.33. .»\.noihcr question. relevant to section 372. may be noted on the apgllggt,-on ii". 1, subject of the pm.~;,:tltii'e to be followed regarding the grant of certiﬁcate lo a minor. ' minor. There is it coiiilict of views. which can be summansed as under :--

(i) First, there is the Allahabad view'*--which was also the earlier ('zil-

cutta view'----that a succession certiﬁcate may be granted to a minor acting throttgli his HEX] frieml. This is the most liberal view.

(ii) Secondly, we have the Madras view" holding that a succession certi- ﬁcate can be granted. to the minor on the application of his iiatiiral guardian. Tliis also appears to be the later Calcutta view". Incidentally.

'Law Comniission File No. F. 2 l.6).84 l..C. S. 'No. 6A. » Hindustani Mercantile Association Delhi. Letter No. HMA/22_4l dated 30th May. 1984.

3To be cdrried out by inserting section 386A.

"Rani Kaur \'. Sm-dar Sllllﬂ'/I, (l 898) l.L.R. 20 All. 352.

'Kali C()()IlI(lI' \'. Tum PI'0Sl()llI(', 5 ('.l..R. 517. referred to in Ram Kaiir V. Sardar Sing/i. (1898) l.L.R. 20 All. 352 'Krislmumma v. Vmzkara, I.L.R. 36 Mad. 314 'In Re---5'eri 'Vin/iafrrz, (l 894) l.l .R. Zl Cal. 9l l.

259. it may be pointed out that this is L! niore rigid \iC\\' than the iifsl. since. according to it. only the natural gruardiaii can apply and no other person can apply as the next friend on behalf of the minor. This may be called the middle view.

'l'liii'dlv. there is at Bombay rulling'. according to which the certiﬁcate can be grantctl to the guardian only if he is aptiinted a guardian of the property of the minor under the Ciuardian & \V'-trdﬁ ACI. 1890. This is the narrowest view.

(iii) 48.2-l. it is iiotewortliy that there is no speciﬁc provision in section 372 prohibiting the grant of probate to a minor. In this respect, sections 223 and 236. which relate to the grant of probate and letters of administraion respectively. may be contrasted. These sections prohibit grant to a minor. The rcilson why the two sets of provisions are differently frtimed appears to be this. Probate is granted to an executor appointed by the tcstator. Normally, the executor would not be a niiiior. but in the rare case in which he is a minor. the prohibition against grant of probate~ai1d consequential refusal by the court to grant the probate to him-- would not cause serious hardship. because letters of administration with the will annexed can still be obtained by another suitable person, It may be noted that the law does not impose very rigid limitations as to the grant of letters of administration. in the case of a succcssioii certiﬁcate. how- ever. the position is ditlcrent. Only the person who has the right to the debt in qucstioii can apply. so that the ﬁeld of choice is limited and is determined, not by statutory provisions or by the tcstator's directions or by the orders of the court, but by external circuinstances~--tlie person who have survived the deceased and stand in the prescribed relationship to him. Apparently for this reason, the Act does not provide a total bar as such against the minor being grained succession certiﬁcate. Under section 372(] ) (d), the right which the petitioner claims has to be speciﬁed in the petion, this indicating that the claimant must be a person who has some title or interest in the debt. If the person who has some title or interest happens to be a minor. only he can apply for a succession certiﬁcate.

48.25. The question that should really survive for practical consideration is only one as to the procedure to be followed by the minor. The grant of succes- sion certiﬁcate to a minor as such cannot be denied as a matter or law. but safeguards could still be laid down. Of course, the saleguards should not impose very severe restrictions on the pursuit of the remedy for enforcing a right that is already vested in the minor.

Hzlviltg J'cgLii'd to the abmc coiisi«.let';itioiis. the proper course, in our view. would be to provide---by way of clariﬁcation and by way of indicating the correct procedure--that where the applicant for succession certiﬁcate is a minor, he may apply through a next friend as if he were a pltiiiitiﬁ in a suit and the provisions of the Code of Civil Procedure. 1908 should. so far as may be. apply in relation to such l'iC.'\[ trieiids as they apply in relation to a next friend suing under im- Code'-'.

We may add that the provision proposed would not only possess practical utility. but would also be consistent with the object underlying the provisions of the Act as to succession certiﬁcate. Incidentally. section 384(3), by mentioning section I41 of the Code of Civil Procedure, 1908 (though in a difi'erent context). assumes that the Code of Civil Procedure, as far as may be applies to proceedings for succession certiﬁcate. Thus, the amendment which we are recommending would be in harmony with the assumptions underlying the entire cliaptcr_ '

-i8.25A. it should be pointed out that the grant of a Certiﬁcate only to a court---appointed guardian3 would be highly inconvenient. It means that if the guardian is changed. a fresh succession certiﬁcate will have to be obtained, 'In Re- V(1I'_l'(III K//zriiderr/ta, 35 Bomba_\' Law Reporter 950: A.l.R. 1933 Born. 436.

-'For draft. see para 4.9.26. /'1_/'ru.

"In Re-Varwm Kha/iderao, A.l,R. i933 Born. 436.

Grant to a minor.

Question of proce dure--~ Recommen-

dation.

Position of Guar-

dian.

260

48.26. Accordingly. \\c |'CC0ll]lllL'll(l that an lixplaiiation should be inserted as *0 amend 5°°"°" follows, below section 372.

Recommendation

372. Section 373--Pl'0- cedure on applica-

tion.

Section 374----Con-

"[;'.\'/)lunation----W/Jere I/ie it/xplicanz for \\'ll('(!£'S.3'l'()ll r-erli/irate is a minor, he may apply through a next friend as if he were a plainri_[}' in u .sm'r, and the provisions of the Code of Civil Procedure, 1908, shall, so far as may be, apply in relation to such next friend as they apply in relation to a next friend siting under the Code."

48.27. This takes us to section 373. It rCdd.\'--

"373. (l ) If the District Judge is satisfied that there is ground for entertain- ing the application, he shall ﬁx a day for the hearing thereof and cause notice of the application and of the day ﬁxed for the hearing-----

(a) to be seved 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 pub-

lished in such other manner, if any, as the Judge, subject to any rules made by the High Court in this behalf, thinks tit, and upon the day ﬁxed, or as soon thereafter as may be practicable, shall proceed to decide in a summary manner the right to the certiﬁcate.

(2) When the Judge decides that the right thereto to belong to the appli- cant, the Judge shall make an order for the grant of the certiﬁcate to him.

(3) If the Judge cannot decide the right to the certiﬁcate without determining questions of law or fact which seems to be too intricate the diﬁicult for deter- mination in a summary proceeding, he may nevertheless grant a certiﬁcate to the applicant if he appears to be the person having prima facie the best title thereto.

(4) When there are more applicants than one for a certiﬁcate, and it appears to the Judge that more than one of such applicants are interested in the estate of the deceased the Judge may, in deciding to whom the certiﬁcate is to be granted, have regard to the extent of interest and the ﬁtness in other respects of the applicants."

The section needs no change. having created no serious problems.

. Form and Contents 48.28. Section 374 provides that when the District Judge grants a certificate, tents of certiﬁcate. he shall therein specify the debts and securities set forth in the application for Section 375---Requi-

sition of security from grantee of certificate.

the certificate. and may thereby empower the person to whom the certiﬁcate is granted---- , (21) to receive llitt.'.='('.\l or dividends on. or

(b) to negotiate or transfer. or (C) both to receive interest or dividends on, and to negotiate or transfer, the securities or any of them.

This section also needs no change.

48.29. Section 375 reads:

"375. (l) 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 or more surety or sureties, or other sufficient SCCllI'lty,. 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.

26] (2) The Judge may. on application made by petition and on cause sliowu 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 s€'Cttrity to some proper person, and that person shall thereupon be entitled to site thereon in his own name if it had been ori-

ginally 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 there- under."

The section needs no change. having raised no problems.

48.30. Section 376 reads.'----~ Section 376----Ex- . _ _ _ ' _ , tension of certiﬁcate.

"376. (1) A District Judge may. on the application ol the holder ot a certi-

ficate under this Part. extend the certiﬁcate to any debt or security not origi--g nally speciﬁed therein, and every such extension shall have the same effect as it the debt or security to which the certiﬁcate is extended had been origi- nally speciﬁed therein.

I2) Upon the €'.\'I'L'I)Sl()I1 of £1 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 o.her security for the purpose mentioned in section 375 may be required. in the same manner as upon the original of a certiﬁcate." .

This section also needs no change.

48.31. Section 377 provides that certiﬁcates shall be grained and extensions Sm,-0,, 3-;7_ of certiﬁcates shall be made. as nearly as circumstances admit. in the forms set forth in Schedule VIII.

The section llCC(l:4 no change.

4832. This takes us to section 378. which provides that where a District Section 378-- Judge has not conferred, on the holder of a certiﬁcate, any power with respect. to ;':t'f£C':1':;°'i": respcﬁ a security speciﬁed in the certiﬁcate, or has only empowered on him to receive of powgfg as to interest or dividends on, or to negotiate or transfer, the security, the Judge may, Securities- 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.

The section needs no change. liaving created no serious problems.

48.33. Section 379 consists of three sub--secti0ns. Sub-Section (1) provides Section 3'[9--Modc that every application for a certiﬁcate or for the extension of a certiﬁcate_sha1l;.'fC°"°°""3.€°""' be accompanied by a deposit of a. sum equal to the fee payable under the 66$ on Gem cams' COUrt--lccS Act. W70. in respect of the certiﬁcate of extension applied for.

Sub-Section (2) lays down that if the application is allowed, the sum depo- sited by the applicant shall be expended. under the direction of the Judge, in the purchase of the stamp to he used for denoting the fee payable as afore- said.

Finally. sub section (3) provides that any sum received under sub section (I) and not expended under sub-section (2) shall be refunded to the person who deposited it.

48.34. The question has arisen as to the stage at which refund is permissible Controversy as to under section 379 (3). It is the stage before passing of the order for grant of stage of refund. 2: certiﬁcate, could it be any later stage'? The nature of the controversy Wm be apparent on a consideration of selected cases on the seCtion_ 48.35. lll a Madras case". the District Judge. Tihnevelly, referred the follow- The case law. ing question to the High C()lall 1»-

"Up to what stage in the proceeding for succession certiﬁcate is an applicant entitled to obtain a refund 7" ' 'S¢mkm'o ,-lyyar v. i\"ai'Itai' 3'/10()[V)pﬂIltlI', ( l 898) l.L.R. 21 Mad. 241.

262

\ The High Court held that. if the tip/ilication is allowed, i.c.. if the order for the grant of a certiﬁcate has been made, the sum in deposit becomes at once legally appropriated, as duty, to the extent of the debt covered by the order, and cannot be refunded. in other cases, we think that refund can be made." This case was decided under section 14 of the Succession Certiﬁcate Act_ 1889. to which section 379 of the present Act corresponds.

48.30, A Nagpur case', however, seems to have taken a diﬂerent view. The applicant applied for a succession certiﬁcate and deposited the required fee. The ('ourt allowed the t7[)[)liC'(1ti0t1 for succession certiﬁcate subject to the appli- cant's furnishing security, but the applicant failed to furnish it. Thereafter, the applicant applied for a refund of the sum deposited by him. The lower appellate court, relying on the Madras case mentioned above? rejected the application. The High Court, in revision, held that section 379 (3) lays down two conditions

(i) the sum should be received under sub-section (1), and (ii) it should not be expended under sub--section (2), If these two conditions are satisﬁed, the sum should be refunded. Since in this case both the conditions were satisﬁed, the High Court ordered a refund.

The same view has been subsequently taken in it Lahore case".

Comment on case 48.37. it is, with respect, suggested that on the language of sub-section law. (2'), refund is not permissible Once the application is allowed. Under that sub- section the money can be spent only for purchase of the stamp. it thus impliedly bars refund, once the application is allowed, The opening words of section 379(2) are "if the application is allowed", and not "when the certifﬁcate. is granted". Therefore, once a court has allowed an application for succession certiﬁcate and has passed an order to that effect. whether with or without a condition, the sum can be appropriated only towards the payment of the stamp. If the applicant has failed to fulﬁl a condition, the State cannot be deprived of its legitimate ducs_ more particularly when the court has heard the parties, spent its time and exercised its mind on the problems.

Recommendation 48.38. We recommend that in order to make the position clear, it new sub- to 'insert Sl_1l>- section should be inserted in section 37'), as follows :--

sect1on(4)tn section ' 379 and *0 am°"d- "(4). If the application is allowed with or without condition, the sum_ shall 5°°ﬁ°" 379(3)' not be refunded, ever: if, hr r€u.\'0n of breach of the condition, the certiﬁcate cannot be granted."

We also recommend that the provisions of sub--section (3) should be made subject to new sub-section (4) which is proposed to be inserted as above_ Section 379 (3) should. therefore, begin as follows :~--

"(3) Sub,/et't to the /;rori.s'ion,\ of su/J-sectiorz (4) any sum received . . . . . . .

Vll. Effect of certiﬁcate , 48.39. Section 380 reads :--

Section 380----«Local Extent Of C¢F¢lﬁCa' "380. A certiﬁcate under this Part shall have effect throughout India. cate~--recommenda-

mm' This section shall apply in India after the separation of Burma and Aden from India to the certiﬁcates granted in 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 certi- ﬁcates granted before the date of the separation, after that date in proceedings pending at that date in any of the territories which on that date constituted Pakistan." « 'in re : Mr. Fatam/ii', A.l.R. I940 Nag. 65.

"Sankara Ayyar \. .\'ainar Moappa/tar, (1898) l.L.R. 2l Mad. 241. 'Smt. Parkash Wari V Province of Punjab, AIR. 1941 Lahore 399 263 The second and third paragraphs or section 380 have spent their purpose and should now be deleted. We recommend accordingly. l'he section should. therefore, be revised. so as to read as under :~----

"380. A certificate under this Part shall liavc etlcct throughout India."

48.40.Sction 381 prmiocs that subject to the provisions' of this Part the certiﬁcate of the District Judge shall, wth respect to the debts and securities spccﬁed 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, atlord 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.

The section needs no change. h'a\'lI1g raised no problems. 48.4l.Section 382 reads :--

"382. Where a certiﬁcate in the form. as nearly as circumstances admit, of Schedule VlIl----

(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 cotntiieticetiiettt til' the Part B States (Laws) Act. l95l. to a resident within any Part B State by a District Judge of that State or has been extended by him in such form. or

(c) has been granted after the commencement of the Part B States (Laws) Act, 1951, to a resident within the State of Jammu and Kashmir :y 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, with respect to certiﬁcates under this Part, have the same eﬁect in India as a certiﬁcate granted or ex-

tended under this l"art. ' The section needs no cltatlge.

Vlll. Rex ucatien 48.42. Section 383 rt-ads:----

"383. A ('crtilicate granted under this Part tnay be revoked tor any of the following causes, namely :--

ta) that the proceedings to obtain the certilicate were substance:

defective in

(b) that the certilicate was obtained fraudulently by the ntaking of a talse suggestion, or by the concealment from the Court of something material to the case:

tc) that the certiﬁcate was obtained by means of an 'untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently:

(d) that the certiﬁcate has become useless and inoperative through circumstances:

(e) that a decree or order made by a competent court in a suit or other proceeding with respect to effects comprising debts or securities speciﬁed in the certitlcatt renders it proper that the certiﬁcate should be revoked."

This section also needs no change.

48.43. Section 384 reads:----

"3144. '( I) 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 cartiﬁcatc Section 38l.

Eﬁeet of certiﬁcate granted or extended by Indian represen-

tative in foreign State.

Section 383--Revo--

cation of certiﬁcate -, Section 384.-----

Appeal.

264

should be granted and direct the District Judge. on application being made therefor, to grant it accordingly. in supersession of the certiﬁcate. if any. already granted.

(2) An appeal under sub-section (I) must be preferred within the time allowed for an appeal under the Code of Civil Procedure. 1908.

(3) Subject to the provisions or' sub--section (l) and to the provisions as to reference to and revision by the High Court and as to review of judge-

ment of the Code of Civil Procedure. 1908. as applied by section '|4l of that Code, an order of a District Judge under this Part shall he ﬁnal".

The section needs no change. having created no problems_ section 3'35....Eﬁ'¢c1 18.4-/.1. Section_385 pI't)\itlcs that save asprovided by this Act. a certiﬁcate on _ccrttﬁcate ofgranted thereunder in respect of any of the eﬁects of a deceased person shall be 'F":§l';;':;'5or°f;t't'g°S"(§':,invalid if there has been it previous grant of such a certiﬁcate or of probate or admm;S,m;°,,_ letters of 'administrat_ion in respect of the estate of the deceased person and it' such previous grant is in force.

The section needs no change.

IX. Miscellaneous Validation of cer-- 48.45. Section 386 ieatls:--

tain payments in good faith to holder "386. Where a ccrtiticate under this part has been superseded or is invalid of valid certiﬁcate.

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 l1l1tlCl' section 38-1. 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 iiivalidity, shall be held good against claims under any other certiﬁcate."

The language is slightly involved. but the ptirpose is fairly clear. No change is therefore needed in the section.

Section 386A. 48.46. We have already recommended' the insertion of a new section to ' provide for the facility of succession certiﬁcate. even in regard to properties other than debts. The relevant section can be inserted as section 386A.

. . 48.47. This takes us to section 387, which rovides that no decision under Section 387--Eﬁect . . . . p .

of decisions under this part upon any question of right between any parties shall be held to bar this Act, and liabi- the trial of the same question in any suit or in any other proceeding between the lit)', of holder Of same parties. and nothing in this Part shall be construed to affect the liability certiﬁcate there- -, _' , '. .; a , 1 . .. f . . - , under of any person who may iecent the whoe or any pait 0 any debt or seeurit). ' or any interest or dividend on any security. to account therefor to the person lawfttlly cntitlcd thereto.

The section needs no change. having created no ditlictiltics, 48.48. Section 388 I'c'1l(l.\':~--

"388 (IV) The State G0'."cI'nII16lli may. by notiﬁcation in the Oﬁicial Gazette. invest any ('onrt inferior in grade to a District Judge with power to exercise the functioiis of a District Judge under this Part.

Section 388--_--lnves-

titutc of infcripr Courts with juris-

diction of District Court for purposes ofthisAct. _ V _ _ _ _ _ _ ' _ (2) Any interior Court so invested shall, within the local limits ot its jurisdiction. have concurrent iurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge.

arid the provisions of this Part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge;

Provided that an appeal from any such order of an inferior Cotirt as is mentioned in sub-section (l) of section 384_shal1 lie to the District Judge. and not to the High Court. and that the District Judge may, if he thinks 'See diseussioii relatiiig to section 372 (l)tf) for extending the facility ol" succession certi- ﬁcate to properties other than debts, supra.

5 ofl908.

5 of I908.

5 M1908.

265

ﬁt, by his order on the appeal, make any such declaration and directions as that sub-section authorises the High Court to make by its order on an appeal from an order of a District Judge.

(3) An order of a District Judge on an appeal from an order of an inferior Court under the last foregoing sub-section shall, subject to the previ- sions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, as applied by section 141 of that Code, be ﬁnal.

"(4) The District Judge may withdraw any proceedings under this Part from an inferior Court. and may either himself dispose of them or transfer them to another such Court established within the local limits of the jurisdiction of the District Judge and having authority to dispose of the proceedings.

(5,) /\ notitication under-section (1) may specify any interior Court spe- cially or any class of such Court in any area.

(6) Any Civil Court which for any of the purposes 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."

The section needs no change.' 48.49. Section 389 provides 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.

If he wilfully and without reasonable cause omits so to deliver it up, he shall be punishable with line which may extend to one thousand rupees, or with imprisonment for a term which may extend to three months, or with both.

The section needs no change. having created no problems.

48.50. Section 390 reads:--~ "39(). Notwithstanding anything in Bombay Regulation No, VIII of 1827, the provisions of section 370, sub-section (2), section 372, sub-section (1), clause (f) and sections 374. 375, 376, 377, 378, 379, 381, 382, 384, 387, 388 and 389 with respect to certiﬁcates under this Part and applications there- for, and of section 317 with respect to the exhibition of inventories and accounts by e.\ecutors and administrators, shall, so far as they can be made applicable, apply, respectively,' to certiﬁcates granted under that Regula- tion, and applications made for certiﬁcates thereunder. after the 1st day of May I889, and to the exhibition of inventories and accounts by the holders of \uch certificates so granted."

This section also needs no change.

CHAPTER 49 SUCCESSION BY HOMICIDE SECTION 390A ( Proposed ) I, Introductory

49.l. We are concerned in this Chapter with a fundamental principle of public policy, namely, that a man should not be allowed to derive a beneﬁt 'Information as to empowerment is being collected.

Section 389----~sur-

render ofsupersedcd and invalid certiﬁ-

cates.

Section 390-Provi-

sions with respect to certiﬁcate under Bombay Regula-

tion VIII of 1837.

Scope of the Chap-

ter.

266

resulting from his own crime. lhis principle, well-recognised in the legal systems of many countries." including India," has not yet been expressly enacted in the Indian Succession Act. The object of this Chapter is to consider the need for codiﬁcation of the above principle in it suitable form in the Act. after a brief examination of the present position in this regard.

The higheﬂa" 49.2. All laws must conform to a higher law. An American case wliiclt is a good example of this approach is Riggs v. Palmer, where the New York Court Of Appeals held that 2: legatee did not gain title to property which he would have received as the result of murdering his testator. liar] J. said that there are certain principles that "have their foundatt"on in universal law admini-- stered in all civilised countries" and that "all laws, as well as all contracts, may be controlled in their operation and ellcct by general. fundamental maxims of the common law". t Motive immatet-iaJ_ -19.3. Accordingly. where a person murders another he generally should not be allowed to enjoy the property he acquires as the result of that death.

"A man shall not slay his benefactor and thereby take his bounty?" It is not considered relevant what the murderers' motive for the murder was."

/P£:°;"°" "me" 'he 49.4. .--\t present. lio\\e\'cr. there is no express provision in the Indian ' Succession Act debarring a person who has committed homicide for his right to succeed to the estate of the person whose death he has caused. No doubt, this would be the position under the rules of the common law (to be dealt with later)? But it is appropriate that this important topic should be dealt with by a speciﬁc statutory provision in an Act which is a consolidating enactment.

In order to obtain a proper perspective of the matter. it would be useful first to deal brieﬂy with the position in cases not governed by the Act, and then to recommend the amtndment that could be appropriately made in the Act.

ll. Hindu Law and Muslim_law 1-[indu'La\v. 49.5. According to Hindu law. even before the passing of the Hindu Succession Act} no heirship to another person could be claimed by or through one who has been a privy to the murder of that person. This rule was one of public policy and had been given effect to by the Privy Council. "--'° relying on ancient texts. Even before the Privy Council decision. substantially the same result had been reached by the High Courts in India.

A Madras case may be cited" in illustration. Defendant. the mother of had been charged, along with another accused, with having murdered S. Defen- dant was acquitted, though the other accused was convicted. Plaintiﬁ, as the person next in succession to S. (after the defendant). now sued for a declaration of his right to the property of S on the ground that the defendant was not entitled to the property, inasmuch as she had. ( as the plaintiff alleged) been party to the murder. The subordinate iudge dismissed the suit without trying the question whether he defendant had been a party to the murder. On appeal it was held by the High Court that the question should have been tried. The reasoning was as follows:

'Clearer \. .\-lut1tu/ Rt'.\'('l'\'t' l*m1«/ lv~'\0('I'(/IIIOII, (1982) l QB. I47. l5(w.tFr_\ L..|.). *Para 49.8 . in/ru.

"Section 25. Hindu Succession Act. 1956.

'Ri',L'gs' \'. Pt!/l}l"l'. (I889) ll5 N.Y. 506 1 22 N.F_. I88. l9|l cited b_\ Youdan in (I973) 89 L.0.R. 335. 25l.

"Youdan. "Acquisition of l'ropert_\ b_\ Killing". (I97?) 89 L.Q,R. 3.35. 237. "lure Hz/I/. (I914) Probate I. 7 (Hamilton LJ.) 'See par 49. 8. mrm.

' "Para 49.5. in/rrl.

"Kc:/L'Im_\'u \. (iirimulluppu. .v\.l.R. 1924. l'.('. 200. '°Narada. ll--l3.2l.ciIed in Mitakashra. ll-X.3.

" Vedwza,va_eu Mudaliar \'. Vt'!/(I/7ll}l(lf, (I904). l.L.R. 27 Mad. 591. 598 to 600. (This point was not challenged in appeal Vet/ummal v. Vedmmyaga, U908) l.L.R. 3l Mad. I00, l03. I04).

267

The principle that no one shall be allowed to beneﬁt by his own wrongful act is of universal application. If the defendant was a party to the murder, her wrongful act, while not preventing the vesting in her of the inheritance, disentitled her to any beneﬁcial interest in it. Such beneﬁcial interest would vest in those who would be entitled to it if the guilty heir were out of the way.

49.6. In kencliavtfs case,1 it was held by the Privy Council that "the High hquélya Juﬁtice and Court has rightly decided that the principles of equity, justice and good c0ns- g°° °°"5°'°"°° cience exclude the murders". The Privy Council also laid down the proposition that "statutes regulating lieirship or descent, or giving force to wills, should be read as not intended to affect paramount question of public policy or depart from well-settled principles of purispruclence".

49.7. T he Hindu Succession Act* now provides as follows;--- Provision in Hindu " _ _ ' Succession Act.

25. A person who commits a murder or abets the commission of murder shall be disqualiﬁed frominheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder".

49.8. The rule under Muslim law is also substantially the sanief For Muslim law. example,' the Chief'Court of Punjab held that a Muslim who had murdered his half-brother could not be allowed to claim the property of the deceased as his heir. .

llI. Common Law u,,,,,',,.,,, law 49.9. There is enough authorityin common law for such a bar. In England, as early as 1892,5 it was laid down that murder forfeits all beneﬁts under the will of his victim. In 1914, this principle was extended from murder to man- slaughter.' In regard to intestacy, it was decided in 1935 that the same rule of public policy applies.' 49.10. The general rule* in England is that a person may not derive a beneﬁt resulting from his own crime."

the principle that no criminal can retain a beneﬁt which acrues to him from crime" is now well accepted.''-'' The English cases all deal with direct inheritance of the murderer from the victim. The problem of indirect inheritance does not seem to have arisen in "England."

49.11. Some questions of proof have arisen" in England, but we are not, in the Succession Act, concerned with them. What requires to be emphasised is that the rule barring the murderer from succession is one of public policy, and Public Policy 'Kenchava v."G1'rimallappa, A.l.R. I924, 209, 21 l. V "Section 25. Hindu Succession Act. 1956. See Minote v. Sits/ii/. A.l.R. i982 Born. 68 for mean- ing of "murder".

'~'Tyabji, Muslim Law (1968), pages 762, 820, 865. _ 'S/ta/i Khanam, v. Kalahand/tar K/tan, Vol. I Punj. Rep. 455, cited in Vedcmyadu Mmlaliar v. Vcdamal, I.L.R. 27 Mad. 591, 599.

5(a) Cleaver v. Mutual Reserve Fund Life Associatio/1, (1892), 1 Q.B. 147 (CA).

(b) Beresford (1938) A.C. 586.

"Re Hall, (l9l4) Probate 1.

'Re Sigawarlli, (l935) Ch. 89.

*1-Ialsbury (3rd Ed.), Vol. 1, page 10, para 15.

"(a) Beresﬁird v. Royal In.\'m'ance Co. Ltd., (1936) 2 All L.l{. l052; revsd. CA. (1937) 2 All l;'.l<. 243; afl'd. I-lr.L., (1938) 2 All E.R. 602; (1938) A.C. 586. p

(b) Cleaver v. Mutual Reserve Fund Life Assn., (1892) l Q.B. J47. (C.A.).

(c) In the Estate ofCrippeII, (1911) Probate P. 108 (l9ll~--l3) All E.R. 207.

1°51. Jolm Sltipping Corporation v. Joseph Bank LId., (1957) 1 QB. 267, 292, per Devlin J.

"Cf. Beresford's Case, (1937) 2 KB. 197, 220, Cointat \'. My/mm & Sons, (1913) 2 K.B. 220 Marles v. Philip Tram & Sons Ltd., (1954) l Q.B. 29, 39-440, per Denning L.J. "See also Haseldine v. Haskell, (1933) l- KB. 822; Askey v. Golden Wine Co., (194) 2 All E.R. 35. "Sec article by Professor Hahloin in 16 Modern Law Review l00. "See note by Magary in 67 Law Quarterly'Review 309.

55-L BlD)l4~'lMo{L.l&CA-- 18 206 has now been accepted lll most countries. As Vaisey .I. stated,' "the rule based on public policy is that no person is allowed to take any beneﬁt arising out of a_ death brought about by the agency of that person acting felonious, whether it be a case of 1.i1ui'tlci' or oi' niaiislaughterf' lV. Law in certain other countries Civil law (France 49.12. in certain couiitr'ic.s or the world, the legislature has enacted a rule /and Germaﬂl preventing a person who kills the intestate from sacceding to his property."

49.13. In the civil law system, for cxamplr, tl1c murderer is not allowed . to reclaim the legacy."

The Frencli law has 'oeetl thus stated with r'elcrerrce to the French Civil Code." "The heir must not be unworthy. The Coda has three causes of un- worthiness (indignite), all somewhat academic which may exclude an heir from the succession."

These arc; t 1) it he has been condeinned for having killed or attempted to kill the deceased; C) it' he has brought a complaint of a capital charge against the deceased; (3') it he is aware that the deceased has been murdered and does not inform the legal authors of the murder."

"The children ol an unworthy heir cannot take as representing him, but are not excluded if they are the next heirs in their own right." The unworthiness takes effect: by operation or" law, any judgment of the court being merely declaratory".

Kussianylaw 49.13.1111 the Russian Law of ll1l1€l'llé:ll1CC,' a citizen disqualities, himself ' trom successiona under Wlll or intestancy, if hi: has promoted his inheritance by unlawful acts directed against the deceased, against any of his successors, or against the carrying out of the wishes of the deceased as expressed' in his will, provided such acts are established in judicial proceedings.

01' course, it is not [tt.'t.'L's_b'clly that the motive of the person sought to be disqualiﬁed must be to gain the inlieritaiicc by his unlawful aL'![0}I. u_s,A, 49.14. in several States in the U.S.A., the principle had been recognised by statute as early as 1936. It is apparent"-" that "the social interest served by refusing to permit the criminal to proﬁt by his crime is greater than that served by the preservation and enforcement of legal righis of ownership.""

The Restatement on Restitution provides' that a person shall not be allowed to acquire property by murdering another."

Theo of C0 _ «J.9..l5. Co_inmcritators in the. U.S.A. have suggested a constr'uctiv_e trust as t,'.uCti:,'; Trust.' 1" the logical device for denying cnioynient of beneﬁts toponc who accelerates his interest by murdering the persons whose continued existence prevents acquisi- tion. However, most courts which reject literal interpretation of an unequivocal statute of descent, have found it simpler to draw an exception sanctioned by public policy. ""1" ' 'Re c'a//am-, twin) All LR. is t, 452 (V«'ll§t:)_' J.) noted on in (1956) 72 l..Q.R. 7475.' W

-'Sec para 49. ll, ct. seq. in/'ru.

"As to the cixil law s_vstcm,--sec retcrcirccs in Vcdmiym/a v. Vcdamal (1904) l.L.R. 27 Mad. 591, 600.

'Amos and Walton, introduction to lreiiclr Law, (1967) page 29-1. 'Code Civil (1804). Art. /.27.

"Code Civil (1804). Art. .728 gives details. _ 7Main >;tatutory authority seems' to be Article 531 ol" the R.S.l-.S.l{. Civil Code which came into force on 1st October, 1964.

"Alice lay, "lire Rtissian Law o1'liilicr'itaiice", U968) 17 I.(.'.L.Q. 472, 482 and Footnote 2]. "Wade, "Acquisition of l'roper't_v by Wilfully killing aiiother----statutor'y solution", (1936) 49 l-larvard Law Review 715, Footnote. ' "Sec. fur-tlier, "Dcvelopriicrit in the law-l'i'usts", (1935) 48 Harvard Law Review U62, U80. "Scott on Trusts (3rd lid.) Section 493. ' 1~'Cardozo, Nature oi' the Judicial Process.

"Restateinerit oi' Rcstitutiorr, sections l87-lb"). 1'Developments-----Trusts, (l935)«18 H.L.R. H62, H79. "See Amos, "Can a Murderer Acquire Title by His Crime and Keep lt '."' in Lcct. on Leg. Hist. L1 - 3 Pomer'o ' E uity Jurisprudence, S. 1054, note b. tr) 3), r, q p 269 V. Need for Provision in the Indian Succession Act 49.10. lhe lndiz-in Succession Act is. however. lacking in a specitic provi- lixisiillg sections sion on the subject, as already stated} At present, the only provision of the Act :1'? 'he. 5°' 35 1° . . _ . . g _ . isabtlity of mur~ under which a murderer can possibly be debatred from taking advantage of his dam, own wrong is section 263. by which the grant of probate or letters of adminis-

tration could be revoked or annulled for a fihst cause', This is not. however. a bar of the right to .§'((C'('€(,'-(ti, whether on intestacy or on testnnientary succession. If any such bar is to be read, it has to be derived from the general principles of law which have been mentioned above in the context of a discussion of the law before the Hindu Succession Act" and the rule at common law.' In this position, prima fut-ie, there is need for inserting £1 suitable provision on the subject in the Succession Act, so as 'to make the Act comprehensive. On the merits, there can hardly be any doubt. as to the soundness of the principle.

49.17. Certain questions of detail may, no doubt. require attention. There Debate 35") malls has, for example, been much debate in England whether the principle should 'ea' have any application if the criminal has no mens red, but is nevertheless found guilty of a criminal offence.' , This problem may, for instance, arise if the accused is convicted of a statutory offence of strict liability or (in England) is found guilty oi' man-slaugh- ter by reason of diminished iesporrsibility. in England, some Judges have repected any such distinction.

In their view. to accept it. would be to encourage sentimental speculation as to the motives and degrees of the moral guilt of a person who has been justly convicted? ' 49.18. Thus, in Re. Giles," Pennycuick V.C. refused to analyse the ground Decision in Re, upon which the courts have established this rule of public policy. "It is suﬁiicent Cites.

to say that the rule has been established and that the deserving of punishment

-and moral culpability are not necessary ingredients -of the type of crime to which this rule applies, that is culpable homicide, murder or manslaughter", Conse-

quently, he held that alpcrson convicted of manslaughter could not benefit under his victims's will. even though he was found guilty through diminshcd responsi-

bility.

In the case referred to above,' Lilian Myra Giles struck her husband a single blow on the head with a domestic chamber pot, with the result that he dies ten days later. The deceased had made a will in favour of his wife. ' 49.19. But the decision referred to above' has not escaped criticism, Golf and Jones state their comments in this respect as follows" :----

"lt is to be hoped that these views will not prevail. Fears that the relaxa- tion of Fry. L.J.'s principle would be "harmful and dangerous" are, in our opinion, misconcieved. There is much to be said for the view that the principle should have no application if the criminal has no men: rm, but is nevertheless found guilty." A "it is hardly defensible that a person who is 'guilty but insane' can take it beneﬁt under his victims will, but a person who is guilty by reason of diminished responsibility cannot."

'Para 49. l.. mpru.

'Para 49.4. .\'I1[1I'(l.

"Para 49. 8. sup/11.

'Goff and Jones. Law ol' Restitution H978), page 486.

'*h.v rhe Estate of Hall, (1914) Probate l7. per_Hamilton L.J. 'Re Giles, (1971) 3 W,I..R. 640: H972) Ch. 544. 552.

7Re Gilm. (1971) 3 W.L.R. 640.

'Re. Giles. (1971) 3 W.L.R. 640.

'Golf and Jones, Law of Restitution (1978), page 486. 85-LiBtD)l44Moi'L]&CA--~]9 Negligence not to beconverted.

Oﬁonce under sec-

tion 304A, I.P.C.

Cases under section 304A, I.P.C.

2 7!) Another writer has observedl z------

"The time seems ripe for a full consideration of the issues involved. The most that can be expected of the courts is to limit the rule to murder and manslaughter, and even to exclude manslaughter based on negligence would now call for much judicial valour. Beyond this. it seems necessary to look to Parliament." ' 49.20. In India, the legislature has not had an opportunity of examining the pros and cons of the matter. Having considered the position carefully, we are of the View that the proposed disability in regard to succession should apply to cases of culpable homicide (whether or not amounting to murder), but should not extend to cases showing a lesser degree of mens rea-----e.g. causing death by rash or negligent act?

proﬁt by his own in the Public polic_\-----and the principle that no man should "wrong"----do not seem to necessitate the imposition of a disqualiﬁcation cases of rashness or negligence. It is true that for reasons of deterrence, criminal law in most countries punishes rash or negligent conduct causing death , (Or certain other civil consequences). But such conduct does not attract the doctrine that no man should proﬁt by his own "wrong". The emphasis that the doctrine places on "wrong" would seem to indicate that its demands would be amply met by conﬁning the disability to cases where the mental element is of the quality described in section 299 of the Indian Penal Code.

49.21. In particular, the offence under section 304A, I.P.C. (causing death by rash or negligent act) is of inﬁnite variety. It may cover even a situation where the morally culpable glement is minimal. Serious cases of rashness would really fall under section 304 (read with section 299) of the Indian Penal Code.

Extreme cases of rashness would fall even under section 302 (read with section 300, fourth clause). These two sections, read together, cover a really "culpable homicide"-----.culpable in the moral sense. Only cases with a. lesser 'degree of mental element would fall within section 304A. It is on this rationable that there is justiﬁcation for not attaching a disqualiﬁcation (in regard to succes-

sion) to mere rashness or negligence which does not indicate aiquality of mens, rea covered by sections 299 and 300 of the Indian Penal Code.

49.22. Some illustrative cases under section 304A of the Penal Code may be referred to in this context. In one Allahabad case} the accused (a woman) received a powder from an enemy of her relative, took no precaution to ascer- tain whether it was noxious and mixed it with the relative's food, believing that by so doing she would become rich. It was held that her conduct was wanting in that prudence and circumspection which every human being is supposed to exercise, and as, by her rash and thoughtless act, she had caused death, she was guilty of an offence under section 304A. I.P.C. ' In a Calcutta case,' the accused operated on another person for internal piles by cutting them out with an ordinary knife. The man died from haemor- rhagc. The Court held that he had no intention to casue the death of the patient. In the circumstances of the case. it was held that the conviction under section 304A was a proper one.

In another case.5 the facts were as follows :--

The factory manufacturin_:: ﬁreworks etc. was situated in close proximity to residential quarters. An explosion in the factory resulted in injuries to, and death of, some persons. The explosives were of highly hazardous and dangerous nature and their possession was prohibited. They were stored in the premises at the time of the occurrence. It was held by the Supreme Court that the appeal- lants who were licence holders for manufacturing explosives in the factory were 'Gareth Miller. Note : "Slaying a Testator'_'. (1972) 35 Modern Law Review "See draft in para 49.17. infra.

"Emp. V. Somlm, (1909) l.I..R. All. 290.

'Sukaroo Kob1'ra_i v. The l;'mpres.v, (1872) I.l-.R. l4 Cal. 566.

5BlmIchana'ra V. S'rafr- of Ma/rat-av/rim, A.T.R. I968 S.C. 1319.

425, 423.

'71 I liable to be convicted under sections 304A and 337, although there was no direct evidence of the immediate cause of the explosion. "The manufacturers un- doubtedly displayed a high degree of negligence by allowing or causing to be llscd explosives of sensitive compositions and substances in the manufacturing of t"ireworks. \'.'lllCl'. must be the etﬁcient cause of the explosion.

In yet another case} the accused, knowing that a pistol was loaded, was trying to unload it and while doing so, acted so negligently that the pistol went off and, as a result the complainant's son was killed. It was held that the accused was guilty under section 304A, '[.P.C. In a Bombay case} the accused was out shooting with the 'deceased in the jungle. While separate from the deceased, the accused saw something moving in the jungle. Without waiting to see what it was, the accused ﬁred and shot the deceased. It was held that the case fell within section 304, l.P.C. We are citing cases to show the wide scope of section 304A.

V' l. Reconimendation.

49.23. On a consideration of the material summarised above we have come, .

- ~ , - t - , Recommendation to the conclusion that a new section on the SUb]6Ci discussed above should be to interest Smm, inserted in the Act in the t'ollowing terms:---- 390A, "39OA. (1) A person who causes the death of any person by committing culpable homicide, whether amounting to murder or not, or abet; the commission of such homicide, shall he disqualiﬁed from inheriting, or front taking as a. legatee_.--------

(a) the pr0pert_\~ of the person whose death is so caused,' or

(b) any other property in furtherance of the succession to which he or she3 committed or abetted the commission of such homicide.

(2) Nothing in this section applies' to persons to whom section 25 of the Hindu Succession Act, 1955 applies.

CHAPTER 50 MISCELLANEOUS PROVISIONS AND SCHEDULES 50.1. Miscellaneous matters are provided for in section 391, which reads Section 39!. as under:------

".391. Nothing in Part VII], Part IX or Part X shall:----

(i) validate any testamentary disposition which would otherwise have been invalid:

(ii) invalidate any such disposition which would Otherwise have been valid;

(iii) deprive any person of any right of maintenance to which he would otherwise have been entitled; or

(iv) affect the Administrator-Genei-al's Act, l9l3."

1Motan Ram, (1930) 32 Cr. LJ. 463. referred to in Ratanlal, The Law of Crimes (22nd Ed. page 8l5.

"gu§ihya, (1888) Unreported Cr. C. 398. referred to in Ratanlal The Law of Crimes (22nd Ed.). page 1 .

"The words "or she" are strictly speaking unnecessary, having regard to section 13, General CIauses_Act, 1897. However, in_ the Succession Act, expressions indicating males do not at most places, include females. Hence it is better to use speciﬁc words covering females.

'The proposed section should apply in all cases where the section 25, Hindu Succession Act. does not applv.

272

Amendrnent of 50.2. No changes are needed in" the substance of the section. But in clause °'a"S°('V)'°°°"" (iv) of the section, the reference to the Administrator--General's Act. 1913 mended' should be revised so as to refer to the later Act of 1963 on the sub'ect. We. . . r . 3 therefore, recommend that in clause (iv). for the ﬁgures "I913", the ﬁgures "l963" should be substituted.

9° -- d I 50.3. We now come to the Schedules. The first schedule to the Act con-

F"S' Sch" "6' tains the table of consanguinity. It needs no change.

Second Schedule. 50.4. The'Sec0nd Schedule to the Act deals with the order of the next of kin. It also needs no change.

-1-hirdschedule _. 50.5. The Third Schedule to the Act contains a list of the provisions of Recomendation. Part VI of the Act that are applicable to certain wills and codicils which are described in section 61. In view of the points discussed by us under various sections,' certain_changes will he needed in this schedule. Those changes should be carried out.

Ac_1ministr_ation 50.6. it has been suggested" by kl mercantile association that an adiiiinistra- 5""bY.h°" 5 tion suit should Le erniiited to he filed even b the heirs. So far as we can see, Suggcstjon of _ . .' . - y . .

Hindustani Merca_ such a suit is permissible even under thepresent law in appropriate cases and a mile Association change in the law as sucii is not needed. In any case, the matter does not pertain cons'dered' to the Succession Act. but rather to the law of procedure, ('HAPTER 5l SUMMARY OF RECOMMENDATIONS The recommendations made in the preceding chapters are summarised below:

Preliminary ( l _) For the purpose of the Indian Succession Act. the deﬁnition of "'rIindu"

in Hindu Succession Act, l956, section 2, should be adopted, so as to secure uniformity. A person to whom the Hindu Succession Act applies would, then. be regarded as a "Hindu" for the purposes of the Indian Succession Act also. This should be carried out by amending section 2 of the Indian Succession Act, by inserting a deﬁnition of the expression "Hindu" after section 2(c). As a consequential change, expressions referring to Buddhists, etc. along with Hindu, wherever they occur in the Act, may be omitted.' (2) A definition of the expression "child" should also be inserte_d, as under :----- ' .,_ , "(aa) 'child' includes--~

(a) an adopted child. in the case of any one whose personal law permits adoption;

(b) an illegiiimate child."

(3) A deﬁnition of the expression "Parsi" should be inserted.

(4) To remove the discrepancy between the deﬁnition of "probate" as oc- curing in section 2(t') and the form of probate as given in the Sixth Schedule to the Act. the deﬁnition of "probate 'should be revised, and the expression 'See for example. discussion as to sections 63--v65, 91. etc. "Law Commission File No. F. 2(6)/84-L.C. S. No. GA Hindustani Mercantile Association, Delhi letter No. HMA/'224l dated 30th May. l984.

"Paragraphs 3.7. and 3.14.

'Paragraphs 3.8, 3.9 and 9.18 'Paragraphs 3.4 and 3.15.

273

"probate" should be delined as meaning a "document issued in respect of a. will under the signature of the proper ollicer of the court, certifying that the original will was proved on a certain date and attaching it certiﬁed copy of the will, \\ith a grant of administration to the estate of the testator.' (5) In regard to the rules of c0nﬂict of laws as applicable on the subject of the formal Validity of wills. the connecting factors that could possibly operate should be made more liberal than at present, broadly on the lines of the (English) Wills Act. l963. This is desirable in order to avoid certain anomalies of the present law. which are pointed out in the Report.' 7 (6) To avoid a possible inconsistency in the legislation. it will also be necessary. as a consequential change. to modify suitably the text of section 5.

which is relevant on the subject of conﬂict of laws.' On adding the tests that will become operative by virtue of the proposed new provisions relating to formal validity of wills, the restrictive rule contained in section 5 would, to some extent, become inaccurate. since that section pro- vides for only two criteria (law of domicile of a person at the time of his death, or the law of India). On this score. section 5 will need suitable amend-

merit.' (7) Insertion of certain new sections 3A to 3B is recommended, to deal with the rules of conﬂict of laws as to the formal validity of wills."

(8) Section 4, at present, provides that Part 1] of the Act (sections 4 to 19) which deals with domicile, does not apply to Hindus, Mohammedans, Buddhists. Sikhs or Jains. It is, however, desirable that Part II of the Act should be extended to the persons who are at present excluded from its scope by section 4. The reason is, that even now, the rules contained in sections 5 to 18 governing domicile are, by judicial decisions, followed, in principle, in determining the domicile of the excluded persons. Section 4 should therefore be deleted.' (9) In regard to section 5. which deals with the law that will regulate succession to the immovable and movable property of a person deceased, it is necessary to provide an exception for cases where the deceased has, by his will, expressly opted for applying the national law in relation to s_uccession'to his movable property. 1 This change should be carried on in section 5. even if the recommendation for the addition of liberal provisions generally in regard to the law determining the validity of execution of wills is not accepted.' (10) ln the light of the separate recommendation for inserting certain tests relating to the formal validity of wills which are not contained in present section 5, section 5 will require consequential amendment. by adding, at the end of that section, the following new sub-section:----

"(3) The provisions of this section shall be subject to those of Chapter lA."' (I 1) With reference to section 6. which provides that a person can have only one domicile for the purpose of regulating succession to his movable pro-

perty, it. is desirable to provide that where it is ditﬁcult to determine the domi- cile of a person by reason of the fact that he has two or more places of perma- nent residence, the place where he last permanently resided shall be the place of his domicile. Section 19 may be the appropriate place for carrying out this object, and it is therefore, recommended that a suitable Explanation should be added to that section for the purpose}.

1Paragraph 3.20.

'=Paragraphs 4. 2. 4. 18 and 4.20.

"Paragraph 4.18, second sub-paragraph and paragraph 5. I9. 'Paragraphs 4.14 and 4.19.

3Paragraph 4.20.

"Paragraphs 5.12 to 5.15.

7Paragraph 5.20 to 5.22.

'Paragraph 5.23.

"Paragraph 5 . 25.

374

(12) Under section 7. latter half, the domicile of origin of a posthumous child is that of the father of the child utAthe time of the fathcr's death. This rigid provision might lead to certain anomalies, which are pointed out in the Report. It is, therefore, recommended that in section 7. latter half. the m0tj;er's domicile should be substituted in place of the fathers" In certain exceptional circumstances, however. such a "rule might not benefit the child, for example, where the m(tthcr deliberately and mala ﬁdc changes the domicile so as not to benefit the child. For this purpose, section I4 may be amended to the effect that where the change oi" domicle etlected by the mother is not for the welfare oi' the minor, the change in the domicile of, the minor, which may otherwise lollow from a change of domicile on the part of the mother, is not to be regarded as a necessary consequence of change in the mother's domicile?

(13) As regards section 7, latter half, as well as section 14,, to carry out the above recommendations. suitable re--draft./amendment 'have been recom-

mended in the Report."

t 14) With reterertr to section 10, which deals with the acquisition of a new domicile, a 'verbal. change is recommended so as to substitute. for the existing word "man", the word ''person'".' (15). Illustration (i) to section 10 should be verbally amended, and illus-- trations (vi) and (vii) to that section should be deleted as obsolete, for reasons given in the Report."

(16) The Explanation to section I() should be revised as under :-----

l:.'.\'pl(m(1ti0n~--A person is not deemed to have taken up his ﬁxed habitation in India or in any other country merely by reason of his residing there in serivce of any Government, authority or person or in the exercise of any profession or calling, but if a person, having gone to another country for the purpose of service or the exercise of any profession or calling intends to remain there. he may acquire a domicile in that country.''''' (17) In regard to section H which deals with a special mode of acquiring domicile by making a declaration in the prescribed office, it is desirable to clarify its scope (which is intended to be a limited one) by adding an Explanation to the ggfect that the provisions of the section confer a limited domicile only for the purpose of regulating .S'Il('('('.$'.S'IOI1 to movable /1r0pert_v, and not for any other purpose.' (18) Section It provides that "any person" may acquire a domicile in India by depositing a speciﬁed declaration. It should be made clear that the section is not intended to cover the case of a person who is not competent to contract. The section should, therefore, be amended by adding, after the words "any person," the words "competent to contract by the law of the country in which he was immediately before such declaration domiciled."

(19). As regards section 14 which deals with the domicile of the minor, .

certain changes. based largely on section 4, Domicile and Matrimonial Proceed- ings Act, 1973 of England. are recommended?

(20) Further, from the scope of section 14, the case where the parent mala ﬁde changes his domicile, should be excluded. This change has been recom- mended by the Commission while dealing with section 7."

'Paragraph 5.2%.

"Paragraph 5.28 A. "Paragraph 5.29.

'Paragraph 5. 37.

3Paragraph 5.42.

Wctragrapli 5.-ll.

7Paragraph 5.46.

"Paragraph 5.47.

"Paragraph5. 58.

"Paragraphs 5.27 and 5.59.

275

(21) To provide for the domicile of a minor who has no parent and has only a guardian. the following new section should be inserted :v~ "MA. A change in the domicile of a guardian other than a parent brings about a change in the domicile of the ward, unless, by virtue of the change of domicile, the guardian ceases to he guardian and the relationship of guardian and ward thereby ceases."

(22) Section [5 provides that, by marriage, a woman acquires the domicile of her husband, if she had not the same domicile before. How far the section should be retained in its present form. depends on the view to be taken with reference to section 16.' (231 As reg2n'ds -section l6 which. in its main paragraph, provides that the wife's domicile during marriage follows her husband's domicile, it is necessary to substitute a different rule, which would leave the domicile of a manit-d woman to be governed by the rules that will otherwise apply.

(24) The amendment of section 16 recommended above.' would render the Exception to section 16 unnecessary. The Exception provides that the wife's domicile no longer follows that of her husband, if they are separated by the:

sentence of a competent Court or if the husband is undergoing a sentence of transportation. However, if section 16 is not amended as recommended above. it will be necessary to carry out certain verbal changes in the Exception, having regard to current usage and law. Hence. if the main paragraph of section 16 is to be retained in the present form. the Exception to the Section should be revised as under:----' "Exception.----~The wiles domicile no longer follows that of her husband if they are separated by a decree of judicial separation or the husband is undergoing' a sentence analogous to transportation."

([25) if sections 15 and lo (relating to the effect of marriage on domicile) are rcttiineii without substantial amendment, a new section 16A should be inserted to deal Wlth the domicile of widows and divorced woman, as under :--

"l6A. (1) A widow retains. after the death of her husband, her late hus- band's last domicile until she changes it in accordance with the provisions of this Act.

( 2) A divorced woman retains. after the divorce. her former husband's last domicile. until she changes it in accordance with the provisions of this Act.""

(26) Section l8, at present, provides that an insane person cannot acquire a new domicile in any other way than by his domicile following the domicile of another person. It is recommended that the section should be revised as under :~-- ' "I8. The domicile of an insane person follows that of the person in whose care and protection he is for the time being."

(27) To meet cases where domicile of a person cannot be determined, new section 18A should be inserted. on the following lines :--

"l8A. Where it is ditlicult to determine the domicile of a person by reason of the fact that he has two or more places of permanent residence, the place, being one of the two or more places aforesaid, where such person last resided permanently. shall be deemed to be the place of his domicile?"

'Paragraph S.6l.

"Paragraph 5 . 62.

"Paragraph 5.74.

'Paragraph 5. 7:7.

5Paragraph 5.7%.

"Paragraph 5.83.

7Paragraph 5.84.

..L'/b (2.8) To provide for cases where foreign law cannot be easily proved, the following new section 19A should be inserted :--

"l9A. The court may, for the purpose of this Chapter, presume that the law of a foreign country is the same as that of India."

(29) Section 22(1) should be revised as under :--

"( l) The property of a minor may be settled in contemplation of marriage. provided the settlement is made by the minor----

(a) with the approbation of the minors father or

(b) if [/16 father is dear! or absent from India or under disability, with the approbation of the minor's mother, or (C) if both the father and the mother are dead or absent from India or under disability. with the approbation of the High Court"?

(30) To clarify the position under section 29 on the points discussed in the Report, two recommendations are made 2--

(a) The T ravancore Christian Succession Regulation" of 1092 should be repealed by an express provision. This course may be adopted if, as a matter of social policy. it is considered that the Indian Succession Act should apply to the persons governed by the Travancore Regulation, referred to above.

If. on the other hand. it is considered that as a matter of social policy. the provisions of the Travancore Christaian Succession Regulation should govern succession to the persons concerned, then there should be inserted a provision in section 29 of the Indian Succession Act to the effect that the Travancore Regulation would apply to Christians governed by that Regu- lation in respect of intestate' succession---

ti) in the State of Kerala, and

(ii) the adjoining areas in the State of Tamil Nadu (in the district of Kanya Kumari and Shencottah taluk). '

(ii) Besides the above amendment, an Explanation should be added to sec- tion 29(2') of the Indian Succession Act. to the effect that "law" in this section does not include custom.' (CS) The recommendation made above regarding the Travancore Succession Regulation applies with necessary adaptation. to the Cochin Succession Act also.' (d; If the Indian Succession Act. 1925, becomes applicable to the persons in question. provisions made for daughters by the father should be taken into account when the succession opens on intestacy. It is therefore, recommended that suitable provision should be made to the effect that from the share to be distributed to :1 daughter on intestacy, the amount or value of the property so provided by the father during his lifetime should be deducted. provided the following conditions in favour of the daughter are fulﬁlled :--

(i) the niaking of such provision is evidenced in writing. whether or not the \vritin«__~ is stamped or registered: and

(ii) the amount of the provision or its value. on each individual occa-

sion, is not less than ﬁve hundred rupees.

'Paragraph 5.88.

'-'Paragraph 6. I0.

"Paragraph 8. 12.

'Paragraph 8. l2.

5Pnragraph 8.12.

277

Intcslates other than Parsis: Sections 31 to 49 (31) Where the intestate governed by section 33 leaves no surviving issue, parent, brother or sister of the whole blood or issue of such brother or sister, hiswhole estate should pass to the widow On this point the provision in section 46, Intestates Estates Act, 1952 (Eng.) 4) worth adopting, being in consonance with the present day sentiments. Section 33 should be amended accordingly.' (32) Section 33A, providing for the compulsory share of the widow where the deceased has left no lineal descendants, should be amended so as to--

(i) increase the amount from 5,000 rupees to Rs. 35,000; and

(ii) increase the rate of interest, from 4 p.c. to 9 p.c.* (33) Section 34 provides that where the intestate has left no widow, his property shall go-

(a) to his lineal descendants; or

(b) to those who are of kindred to him, not being lineal descendants, accord-

ing to the prescribed rules; or

The most usual cases under the last part are of illegitimate persons. Although, technically, their property goes to Government, it appears that there was practice in the past of the Crown (now, the State) re-granting the property to certain relatives, in case of illegitimate persons.' The Law Commission has not been able to ascertain whether these arrange- ments still continue. However, social justice requires that the need for such arrangements should be considered in the context of section 34.' (34) There is also a point of drafting pertaining to section 34. The corres- ponding provision in the Hindu Succession Act is more precise than the provi- sion inthe section 34 of Indian Succession Act. The Hindu Succession Act (sec- tion 29) provides that the Government takes the property subject to all the obli- gations of the heir. It is recommended that in section 34, for the last six words "it shall . - . . . . . . .. the Government", the words "such property shall devolve on the Government; and the Government shall take the property subject to all the obligations and libabilities to which an heir would have been subject," should be substituted.' (35) Even in cases governed by sections 37--39, there should be succes- sion per stripes, as that would be more in consonance with the general sense of the community. Section 37 should be revised as under, to carry out this object.

Revised section 37 "37. Where the intestate has left surviving him a child or children, but no more remote lineal descendant through a deceased child, the property shall---

(a) belong to his surviving child, if there is only one, or

(b) shall be divided among all his surviving children as if section 40 applied to the case."' "child includes-

(a) an adopted child, in the case of any one whose personal law permits adoption.

(b) an illegidmate child."' 'Paragraphs 9.5. and 9.6 and 9.8.

'Paragraph 9.8.

'Paragraph 9.1].

'Paragraph 9.12.

'Paragraph 9.13.

'Paragraph 9.17.

'Paragraph 8.20.

278

(38) Section 38 should be revised as recommended in the Report.' (39) With reference to sections 43-46, even where brothers and sisters of the intestate are alive, the father and mother should take the property (sharing equally) and if only one of them surﬁves, he or she should take the whole.' (40) In regard to section 47, it should be made clear that the section does not apply unless there is at least one brother or sister alive."

(41) With reference to section 48, which provides that where the intestate has left neither lineal descendant nor parents, nor brother, nor sister, the pro- perty of the intestate shall be divided equally among relatives in the nearest degree of kindred to the deceased, an Explanation should be added to the effect that where such relatives are children or brothers or sisters of the intestate, they shall take per stirpes. Illustration (iv) to section 48 should also be revised, accordingly.' (42) Section 51 (succession to a male Parsi---division of his property among his widow, children, and parents) gives to the sons double the share of the daughters. This discrimination against women should be removed?

(43) Similarly, in sections 54(d) and 55, the present provision giving males double the share of each female standing in the same degree of propinquity should be amended, so as to remove the disparity of shares based solely on sex.' (44) In section 59 (competence to make a will), the ﬁrst paragraph should be revised, so as to provide that a person may, by will, dispose of not only his property, but also any propeity over which he has a disposing power which he can exercise by will.' (45). To section 59, the following proviso should be added :--

"Provided that any person, whatever his age may be, may, by will, revoke or alter any will appointing a guardian or guardians. for his child during mino-

rity."° (46) Explanation 1 to section 59 (power of married woman to make a will) is not intended to dispense with the requirements of capacity to make a will as prescribed in the main paragraph of the section. To make this clear, the Explanation should be revised as under :---

"Explanation l.--A married woman, if otherwise competent to make a will, may by will dispose of any property which she could alienate by her own act during her life.''' (47) The law should be amended by providing that the court exercising jurisdiction under the Indian Lunacy Act, 1912, in relation to the property of a lunatic shall have power to make an order, direction or authority for the execution .for the lunatic, of a will making any provision which could be made by a will executed by the lunatic if he were a person of sound mind. The amendment could be in the fonn of--

(:1) a new section. to be inserted in the lndian Succession Act, as section 59A; or

(b) two new sections. in be inserted 'n the lndinn .'.un:i_-3y .»'_c:;_ 1912.. as sections 49A and 71A, intended to provide for the powers of the High Court and the district court, respectively, on the subject."

'Paragraph 8.24.

'Paragraph 8.29.

"Paragraph 8.33.

'Paragraph 8.37.

'Paragraph 10.6.

'Paragraph 10.7.

'Paragraph 12. l 1.

'Paragraph 12.12.

"Paragraphs 12.13 and 12.14.

"Paragraphs 12,20 to 12.22 279 (48) The right to appoint, by will, a guardian for a minor child, given by section 60 to the father, should be given to the mother also, where the father is absent or not competent to act.' Further, it should be made clear that only a person of sound mind may appoint a guardian during the minority of the child." , I _ [A suitable re--draft of section 60 is suggested for the purpose]' (49) In section 61, the case of mistake of the testator should be covered, by adding, after the words "the free agency of the testator," the words "or by mistake." a (50) In section 63(a) (which deals with the formal requirements of wills), it should be made clear, by adding an Explanation, that the "other person" sign-

ing for the testator is competent to attest the will under clause (c) of the section.' (51) As a consequential change, it should also be made clear that the p1_-o-- visions of clause (c) of section 63 are subject to those of clause (a.) and of the Explanation thereto (which is to be added as above).° (52) In section 64, which deals with documents incorporated in will by reference, it should be made clear that the document must not only be acutally in existence, but must be also described (in the will) as actually, in existence.' (53) Section 65 should be extended to Hindus etc. by amending the Third Schedule.' (54) In Section 65, it should further be provided that a person otherwise competent to make a privileged will can do so, whether or not he has completed the age of eighteen years.' (55) A new section 65A should be inserted, to confer, on persons affected by natural calamities, the right to make a privileged will, where there is a reasona- ble apprehension of death."

(56) If the provisions of the Act relating to privileged wills are to be extended to persons affected by calamity (by inserting section 65A) as recom- mended above, section 66 will also require consequential changes."

(57) On the insertion of a new section (as recommended above) to extend the facility of "privilged wills" to persons alfected by natural calamity, (proposed new section 65A) consequential changes will become necessary in section 66(2), caluses (e), (f) and (g). In these clauses, the words "soldier, sailor or airman should be replaced by the words" the person entitled to make a privileged will."

(58) Section 67 should be amended by inserting the following exception in the section, before the Explanation :--

"Exception--For the purposes of this section, the attestation of a will be a person to whom or to whose spouse there is given any such beneﬁt as is described in this section shall be disregarded----

(a) Where, by means of an oral trust, a beneﬁcial interest is conferred upon an attesting witness who at the time of attestation is unaware of the secret trust in his favour; or 'Paragraphs 12.26 to 12.29.

'Paragraphs 12.27 and 12.28.

'Paragraph 12.29.

'Paragraph 12.52.

'Paragraphs 13.9 and 13.21.

'Paragraph 13.23.

'Paragraph 13.26.

'Paragraphs 13.4 and 14.11.

'Paragraph 14.12.

"Paragraph 14.20.

"Paragraph 14.23.

"Paragraphs 14.20 and 14.24.

280

(b) where the marriage to an attesting witness of a person taking a beneﬁcial interest under the will takes place after the attestation, or

(c) where at the time of the attestation it could not be predicted that the attesting witness was person taking a beneﬁcial interest under the will; or

(d) where the will has been witnessed by not less than two other witnes-

ses, to whom no such beneﬁt as is described in this section is given by the will."' .

(59) Section 69 should be revised as under :--

"69. (1) Every will, not being a mutual will, shall be revoked by the marriage of the maker, except a will made in exercise of a power of appoint-' ment, when the property over which the power of appointment is exercised would not, in default of such appointment, pass to his or her executor or administrator, or to the person entitled in case of intestacy.' Explanation---Where a man is invested with power to determine the disposi- tion of property of which he is not the owner, he is said to have power to appoint such property. g Exception--A will expressed to be made in contemplation of a marriage or indicating an intention that it was so made shall not be revoked by the T solemnization of the marriage contemplated; and such an intention may be inferred from any portion of the will showing that marriage was thought of.

(2) Where the law of domicile of the maker of the will at the time of death has a different rule, that rule shall prevail, and the provisions of sub-

section (1) shall not apply to the extent to which there is inconsistency between the two.""

(60) Speciﬁc provision (proposed section 69A)' to deal with the' effect of divorce or annulment of marriage, on wills should be inserted, on the lines recommended in the Report?

(61) If, as recommended above (under section 69), the case' of effect of divorce or annulment of marriage is added in the Act, it will also be necessary to amend section 70, by adding, after the word "marriage", the words "or dissolu-

tion or annulment of marriage."' ' -

(62) The following new section is recommended to be inserted as section

- 2 "70A. Where, after the execution of the will by a Hindu testator who has, in the will, purported to deal with co-parcenary property, a son is born to that testator, the will shall stand revoked as regards all property, unless the will contains an express provision indicating a contrary intention." ' (63) The present structure of section 72 being complicated, its main para- graph should be re-structured, as recommended in the Report.' .

CONSTRUCTION OF WILLS--SECTIONS 74----1l1.

(64) To section 89, an Explanation (regarding bequests for Dharma) should» be added on the lines of section 10, Bombay Public Trusts Act, 1950.' (65) The various rules as to construction of will, contained in section 99 are intended to be applicable only if a diﬁerent intention is not disclosed. This should be made clear by inserting, in section 99, at an appropriate place, in the words "in the absence of any intention to the contrary."' 'Paragraph 15.16.

'Paragraph 15 .23.

"Paragraph 15.32.

'Paragraph 15.34.

'Paragraph 15.38.

'Paragraph 15.41.

'Paragraph 16.26.

'Paragraph 16.39 and 16.46.

281

(66) The following Explanation should be inserted in section 99 on the subject of a child in the womb :

"Explanati0n----F0r»the purposes of this section, a child is presumed to have » been in the womb at time of death of a person if the child was born within three hundred and ﬁfteen days of such death."

(67) But if the illustration is to be retained at all,_ then illustrations (vii) and (viii) should be amended, so as to incorporate the reasoning on which the View taken in the illustrations is based. In illustration (vii), the words "since it would be against public policy" should be added at the end, And, in illustration

(viii), the words "since there is evidence of contrary intention" could be added at the end for the purpose."

(68) Section 100 should be suitably re-drafted so as to refer to a reputation or relationship, but not necessarily a reputation of legitimacy. The object could be achieved by substituting, in place of the words "being such relative", the words "being a child, son or daughter ortotherwise standing in the relationship in question".

Revised section 100 would then' read thus---

"l00. In the absence of any intimation to the contrary in a Will, the word "child", the words "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 a child, son or daughter or otherwise standing in the relationship in question."

(This recommendation to be carried out, only if the alternative recommenda- tion to revise the section is not accepted).' (69) Section 100, illustration (Vii), is anachronistic. Both from the juristic point of view and on wider considerations of social justice, a bequest to an illegiti- mate child, whether already begotten or otherwise, should not be regarded as against public policy. In the Transfer of Property Act, 1882 there is no provision corresponding "to section 100, illustration (vii), as regards gifts during life time

-aiid'there' is no reason for retaining any such provision in the law of testamentary successioiil' (70) Illegitimate children should be regarded as prima facie included with- inithe scope of reationship, in the absence of expression of a contrary intention. If a person begets an illegitimate child, it would not, in general, be unrealistic to presume that he would, in making a testamentary disposition, like to beneﬁt his illegitimate children as well. There will still remain scope for the expres- sion of acontrary intention by him. But, subject to this safeguard, it would be proper, as a matter of social justice, to reverse the present rule, which was framed at a time when the notions of society on the subject under consideration were much more rigid than they are now. Section 100 should be revised and new section 100A should be inserted for the purpose, as recommended in the . Report?

(71) In regard to section 105, illustration (vi), dealing with the situa- tion of _"co'mmorients" (deaths of two or more persons in a common disaster), attention is drawn to the Law Commission's recommendation in its Report on tlxie.Evidence Act.' If the does not, in any manner, indicate an intention that the two persons are to take it jointly, the presumption should be in favour of a tenancy in common.

'Paragraphs 16.45,' 16.47 and 16.53.

9Paragraph 16.64.

"Paragraph 16.61.

'See infra (summary of paragarphs 16.72 to 16.76). 'Paragraph 16.69.

'Paragraphs 16.72 to 16.76.

7Pai'agraph 16.92 et seq.

282

For this purpose, the law should be amended; and an Explanation to section 107 should be added somewhat in these terms.

"Explanation-----If the will does not, in any way indicate an intention that the legacy is given to two persons jointly, it shall be presumed that the testator intended to give them distinct shares of it."' (72) Section 113 should either be deleted, or amended as recommended in the Report.' (73) Section 114 should be revised as recommended in the Report.' (74) In section 118, the changes of substance and drafting, as recommended in the Report, should be carried out.' In brief, the amendments recommended in section 118 are 2-

(a) Removing the present provision for compulsory deposit of the will, in cases where the section applies;

(b) removing the present provision that there should be the prescribed minimum interval between execution of the will and death of the tCSl2llOl'2

(c) substituting a requirement that (in the case of a will governed by the section), one of the near relatives of the testator must be an attesting witness; -

(d) deﬁning the expression "near relative", as meaning a nephew or a niece or nearest relative; and

(e) inserting, in the section, an Explanation on the following lines :--

"Explanation-----T he spouse of a person shall be deemed to be the nearest relative of that person for the purposes of this section."

(75) New section 118A should be inserted in the Act as follows :--

118A. The restrictions contained in sections 114, 116, and 117 shall not apply in the case of a bequest for the benefit of the public, for the relief of poverty or the advancement of religion, education, commerce, health, safety or any other object beneﬁcial to mankind."' (76) In section 120. Exception, a proviso should be inserted at the end, to make it clear that the Exception does not affect the provisions of section 121.' (77) Section 124 should be brought in line with the present English law.

It is recommended that the following proviso should be added to section 124, for the purpose. ' "Provided that :

(a) where the event so speciﬁed is the death of any person without issue or unmarried or before a particular age or accompanied by any other specified circumstance, and

(b) that person is the holder of a prior bequest contained in the will, then, unless the will indicates an intention to the contrary, the legacy shall take effect whether the death happens before or after the period when the prior bequest takes eﬂectf"

'Paragraph 16.104.

'Paragraphs 17.7 and 17.8.

'Paragraphs 17.10, et. seq.

'Paragraphs 17.11 and 17.19.

'Paragraph 17.23.

'Paragraph 18.5.

'Paragraph 20.16.

283

(78) The fourth illustration to section 124 should also be revised in con-

formity with the above recommendation. The object could be achieved by re- framing the last eleven words of the illustration, as under' :-

"in case B dies without children during or after the lifetime of A".

The second illustration to section 124 should also be revised, as recom- mended in the Report."

(79) Under section 127, a bequest upon a condition, the fulﬁlment of which would be contrary to law or to morality, is void. This section should be amended by adding the words "or to public policy" after the words "or morality."

(80) Section 136 should be revised as recommended in the Report, the ob- ject being to provide that where the testator has not prescribed a particplar time limit for the performance of a condition attached to a be uest, the donee should have his (donee's) entire lifetime for performing the con tion.' (81) Section 137 should be amended by adding, after the word "fraud", the words "of a person who would be directly beneﬁtted by non-performance of the condition." 7 Bequests with directions etc.---sections 138-144 (82) In sections 138-139, the present word "fund" would seem to suggest that the sections are intended to apply only to movable property. But the sections should apply to all types of property and, accordingly, the word "fund" should be replaced by the word "property", with necessary consequential change'.

Legacies to executors----section 141 (83) Section 141 (legacy to executors) should be made subject to an inten- tion to the contrary, by adding, at the end, the words "unless a different intention appears from the will."' Demonstrative legacies---section 151 (84) A recommendation is made to combine sections 151 and 157.' Adempti0n---sections 152--l66 (85) Conversion of an asset by legislative action falls within section 163, and is outside section 152. The cause should be excluded from section 152 by express words' and it is recommended that in section 152, after the words, "has been converted into property of a different kind", the words "by act of parties" should be inserted for the purpose.' (86) Further, section 152 should be made subject to a different intention."

The will should govern the converted property as it would have governed the original property, if such an intention can be inferred."

(87) The situations in which sections 155 and 156 operate are distinct from each other and this should be brought out by a suitable re--casting of the section. There is also need to introduce symmetry between the two sections. The two sections should, therefore, be re-cast, as recommended in the Report."

'Paragraph 20.16.

'Paragraph 20.7.

"Paragraph 21 .7.

'Paragraph 21.16.

"Paragraph 21 .20.

"Paragraph 22.7.

'Paragraph 23.4.

'Paragraphs 25.3, 26.12, 26.13 and 26.14.

'Paragraph 26.6.

"Paragraph 26.6.

"Paragraph 26.10.

284

(88) Overlapping between sections 151 and 157 should be removed, and the law simpliﬁed, by combining the gist of the two sections in one section'.

_(89) In regard to section 162, it should be made clear that the section applies to "speciﬁc bequests". For this purpose, the section should be amended by substituting, for the words "the thing bequeathed", the words "the thing speciﬁ- cally bequeathed'? 2 Payment of liability in respect of subject of bequest: Sections 1167----172 (90) Section 170 (speciﬁc bequest of stock in a company) should be suitably amended, so as to add an express mention of shares in a company with:

a limited liability. A re-draft of the section is recommended for the purpose.' (91) In regard to section 172, it should be made clear that the sectiio-n applies to "specific bequests". For this purpose, the section should be amended by should be added, after the word "funds", with consequential changes.' (92) There is an inconsistency between sections 173 and 174, and _wh_ere.

a fund is set apart for the payment of an annuity, there arises a conllict between the two sections. To remove the conﬂict, there should be excluded, 'from section 174, cases where the annuity is for life only, or where it otherwise appears that» it is not intended to be perpetual. Re-drafts of the two sections on the above basis are recommended'.

Legacies to creditors and portioners \ (93) A new section 177A should be inserted as under, to deal with bequests to debtors :--

"l7"/A. Where a creditor bequeaths a legacy to his debtor, and it does not appear from the will that the legacy is to be paid even if the debt' is not repaid by the debtor, the debtor shall not be entitled to the legacy unless so much of the debt as has become due and payable has been repaid"."

Election :--Sections 180--190 (94) The law relating to election in India, as incorporated in section 180', insists on forfeiture and is unduly harsh. Section 180 (the principal section on the subject) should be revised as under' :--

"180. Where a testator, by his will professes to dispose of some thing 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 compensate any person who has, by virtue of such election, lost the beneﬁts provided for him by the will, such compensation not to exceed the beneﬁts which may have been provided by the will for the person so dissenting."

(95) Section 181 should also be deleted, if section 180 is deleted as re-

commended above, since, after the proposed amendment of section 180, there will be no "relinquishment" by the legatee.'

96. In section 182 the reference to section 181 should be deleted, if section 181 is deleted as recommended above. Illustration to section 182 will also require change, if the recommendation to sulgtitute (in section 180) compensationin place of forfeiture is accepted. I1lustration_ (iv) to section 182 has become obsolete 'Paragraph 26. 12.

"Paragraph 26.19.

"Paragraph 27.10.

'Paragraph 28 .4.

"Paragraphs 29.3 and 29.4.

"Paragraph 30. 6.

'Paragraphs 31.9 to 31.11.

"Paragraph 31.12.

285

in View of present English law as to_ the age of majority and should be deleted. On the above basis, the illustrations to section 182 should be revised as recom-

mended in the Report.' Gifts in contemplation of death: section L91 , (.97)' Section 191 should be extended to Hindus etc. by amending the Schedule.' 1,, t (98) In regard to section 192, judicial interpretation of the word "succession"

slia'1ld'b'e codiﬁed by adding, after the word "sgccession" wherever it occurs in the section, the words "testamentary or intestate"?

(99) With reference to section 200 (suit in the name of the curator), it should be made clear that it is not necessary that the curator must have been speciﬁcally authorised to institute or defend the suit.' It should also be made clear, by amending section 200, that it is not necessary for the curator to obtain a, succession certiﬁcate before instituting a suit to recover the debt.' Drafts of Explanations 1 and 2, to be added to section 200 on the above points, are suggested.' ' nepresenuuive title of the deceased--scctions 211 to 216 (100) A special provision is needed to cover shares, in the context of the grant of letters of administration (section 211). There is also need to cover all cases of survivorship, in the context of grant of succession certiﬁcate. Accordingly, an Explanation should be added to section 211, as under :-----

"Explanati0n----Where shares in joint stock company belonging to an undivid- ed family governed by the Mitakshara school of Hindu law stand in the name of the karta of the family, letters of administration limited to the shares may, in the event of the karta dying intestate, be granted to the legal representatives of the karta (including, in an appropriate case, the next karta of the family).' The amendment to authorise grant of succession certiﬁcate in cases of survivorship is dealt with later.' ' (101) Section 213, which provides that before title as an executor under a will can be established, probate of the will must be obtained, should be amended, by clarifying that where probate has not been obtained,' what is barred is only the passing of a decree in favour of the executor, and not the institution of,a,suit by him.' f~»"-'*"' (102) From section 213, Indian Christians should be excluded, and conse-

quential changes, where necessary, be made in other sections."

(103) For carrying out the various points made in the Report with reference to section 214, insertion of the following Explanations to section' 214 is re- commended." .

"Explanation 1. Nothing in this section'? shall be construed as precluding a debtor of a deceased person from making payment of a debt to a person (in this Explanation referred to as the 'payce') claiming, an succession, to be entitled to the effects of the deceased person or to any part thereof, where' 'Paragraph 3] .14.

'Paragraph 32.9.

'Paragraph 33.3.

'Paragraph 33.12. 1 'Paragraph 33.13.

'Paragraph 33.14.

Waragraphs 34.14 and 34415.

'Paragraphs 48.8 and 49. 3.

'Paragraph 34.18.

"Paragraph 34.lBA. . .-

"Paragraph 34.45 read with paragraphs 34.40, 34.33 and 34. 36. r "If so considered necessary, the first Explanation (proposed to be added to section.214).could be limited to claims for small amounts.

286

the debtor is satisﬁed that the payee is so entitled and has taken from the payee a bond indemnifying the debtor and where a debtor makes such pay- ment in good faith and after due care and attention, he shall not be bound to make payment of the debt again in the person entitled to the effects of the deceased person or to any part thereof, as the case may be; but nothing In this Explanation shall affect any remedy which the person so entitled may have against the payee who has received payment from the debtor'."

(104) To section 218, an Explanation should be added as under :----

E.ypIanation---Where the property of a Hindu undivided coparcenary passes by surrivorship to the sale surviving coparecener, the sole surviving coparcener shall, for the purpose of this section, be deemed to be a person entitled to the estate of the person on whose death the property so passes, and shall accordingly be entitled to apply for letters of administration under this section?"

(105) In section 2l9(a). illustration (ii) should be revised as under" :--

"(ii) The widow has married again since the decease of her husband. This.

in itself, is not a good cause for her exclusion."

(106) The following new section should be inserted in the Act, as section 222A.

"222A. The court may by order exclude from acting as executor, a person who, in the opinion of the court, is deﬁnitely unﬁt to_ administer the affairs of the deceased, whether or not that person has committed waste or breach of trust after commencing administration of such aﬂairs :

Provided that no such order shall be passed without aﬂording such person a reasonable opportunity of being heard'. "

(107) Section 223 should be re-drafted as under :--

"223------Probate cannot be granted-

(a) to any person who is a minor or is of unsound mind, or

(b) to any company, unless it satisﬁes the conditions prescribed by rules to be made by the State Government in this behalf; or

(c) to any corporation other than a company, if it is not legally compe-

tent to accept probate'."

(108) To section 241, an Explanation should be added to the effect tl;at--

(a) section 241 will apply also where the case falls under section 228; and

(b) if the case falls under section 228, a copy of the will is to suﬂice and the original will need not be produced.' (109) In view of that has been stated above section 223, section 236 sbuld be revised as follows :-----

"236. Letters of administration cannot be granted----

(a) to any person who is a minor or is of unsound mind, or

(b) to any company unless it satisﬁed the conditions prescribed by rules to be made by the State Government in this behalf, or 'Paragraph 34. 36.

Waragraph 35. 7.

'Paragraph 35.9.

'Paragraph 35.16.

'Paragraph 35.21.

'Paragraph 35.3].

287

(110) Sections 237 and 238 should be re-drafted, and new sections 238A and 238B should be inserted, as follows" :--

"237. When--

(a) a will has been lost or mislaid before or after the testator's death, or has been destroyed by a natural event and not by any act of '(the testator amounting in law to revocation of the will, and '

(b) a copy of the will or a draft of the will has been preserved, probate may be granted of such a copy or draft, limited until the original or a properly authenticated copy of it is produced."

"238. When a will has been lost or mislaid in the circumstances mentioned in section 237, and no copy or draft of the will has been preserved, probate may be granted of its contents if they can be established by oral evidence."

"238A. In sections 237 and 238, "will includes a part of a will.

"238B. Where a will proved to have been lost in the custody of the testator before his death is not forthcoming after his death, the court may presume that it was destroyed by an act of the testator amounting in law to its revocation."

111. Section 241 should be revised as follows 2 "24l. When any executor is absent from the State in which application is made, and» there is no executor within the State willing to act, letters of adminis- tration, with the will annexed, may be granted to the attorney or agent of the absent executor, for the use and beneﬁt of his principal, limited until he shall obtain probate or letters of administration granted to himself.

Exception ; Nothing in this section applies to a case falling within the pro- visionsof section 273.

Explanation: Where the grant is by the High Court, it is not necessary that the attorney or agent should be residing within the State, provided he resides within Indiaa."

(112) Below section 244, the following Explanation should be inserted' :--

"Explanation: In this section, "legal guardian" means a guardian of the property appointed by a perso_n or authority having power to do so, whether within or outside India, but does not include a natural guardian."

(113) Section 245 deals with the case dealt with in section 244 and, is indeed, a kind of Explanation to that section. This should be brought out by adding in that section, after the words, "the grant", the words and ﬁgures "under section 244".' (114) Section 246 should be revised as follows (to remove overlapping with section 244).

"246. If

(a) sole executor or a sole universal or residuary legatee is a lunatic, or

(b) a person who would be solely entitled to the estate of the intestate, according to the rules for the distribution of intestates' estate appli-

cable in the case of the deceased, is a minor or a lunatic, letters of administration, with or without the will annexed, as the case may be, shall be granted to the person to whom the care of his estate has been committed by competent authority, or, if there is no such person, to such 'Paragraph 35.40.

9Paragraph 36. 10.

"Paragraph 36.16.

'Paragraph 36.20.

'Paragraph 36.21.

288

other person as the Court may thinlc ﬁt to appoint, for the use and beneﬁt of the minor or lunatic until he attains majority or becomes of sound mind, as the case may be", (115) Section 247 should be amended to provide that an application for the appointment of an administrator under the section can be made by any person interested in the estate, and even by a creditor of the deceasedz.

( 116) To section 255, an Exception should be added as under" :--

Llxception--Notwithstanding anything contained in this section or in section 256, where moneys have been deposited in joint account in a bank and the amount thereof is payable to either or any survivor of the persons depositing the money, the application for letters of administration in respect of those moneys may, on the death. of either or any of such persons, be made by the survivor."

Practice in granting and revoking probate etc. sections 264, 302, (117) Under the present proviso to section 265(1), the appointment of judicial officers as "Delegates" for granting probate etc. in non-contensous cases requires, in the case of High Courts not established by ' Royal Charter, the previoussanction of the State Government. This proviso shoul_d be -deleted,' as unnecessary at the present day"' ' S

118. In section 273, the amount of ten thousand rupees should be increased to. rupees ﬁfty thousand, in View of fall in the value of the rupee.' S , (ll9).In section 291, the following sub--section should be added :4 I " "(3)' Notwithstanding anything contained in this section, the Court may dispense with the taking of a bond thereunder or with the need for sureties to such bond where---- .

(a) the person to whom. the grant of probate or letters of administration is to be made is the sole legatee or the sole heir of the deceased, or

(b) where, for reasons to be reconded; 'the Court in the circumstances of the case thinks it proper to dispense with suchbond or 'sureties, as the.case may be."' (_ 120) From section 306, the exception for assault and other personal injuries not causing death should be removed.' 1 (121) From section 306 (survival or causes of action after death), the provision for non~surviva1 of 'proceedings for defamation should also be deleted.' "(I22)" Section 306 should apply to other persons (besides executors_or~ administrators), who represent the estate of a deceased, such as heirs."

" (123) Section 305, should, therefore,ebe revised" as follows"

"306. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person 'at the time of his decease, survive to and. against his executors or administrators or representatives, except . . . . . . . . in cases where", after the death of the party, ' the relief sought could not be enjoyed or granting it' would be nugatory."

'Paragraph 36.24.

'Paragraph 36. 28.

'Paragraph 36.40.

, 'Section 250 may require consequential change.

"Paragraph 38. 3.

'Paragraph 38.15.

"Paragraph 38-40.

'Paragraph 40. ll.

'Paragraph 40. 20.

"Paragraph 40.21. -

"Paragraph 40.22. . 5 -.¢_.

289

ILLUSTRATION #8 $* 321* $# *3! A sues for divorce. A dies. The cause of action does not survive to his representatives."

(124) If, from section 306, the words excluding "personal injuries" are not deleted (as recommended above), then the expression "personal injury" should be deﬁned as recommended, and the expression "representative" should also be added in the section. The amendment should deﬁne 'personal injury' as (i) including any disease and any impairment of a person's physical or mental condition, and (ii) excluding injury caused by malicious prosecution.

For the purpose, an appropriate Explanation could be added to 306.' (125) Section 309 should be modiﬁed on the following lines 2 (1) Whether or not the_ will provides for the payment of remuneration to an executor or administrator, so long as the will does not prohibit such payment, an executor or administrator shall be entitled to receive or retain» reasonable commission or agency charges.

(2) Unless the will otherwise provides or the court otherwise permits, those charges shall not be a higher rate than that for the time being ﬁxed in respect of the Administrator General by or under the Administrator- General's Act, 1963.' (126) From section 310, the case where purchase is sanctioned by the court should be excluded.' ' (127) Section .311 speaks of a "direction to the contrary", but does not specify where the direction is "to be contained.' It is recommended that in section 311, it should be made clear that the direction may be either in the will or in the probate.' (128) Section 317 should be amended, by addingthe following Exception to the section' : .

"Excepn'on---Where the Adminilstrator-General is the executor or adminis- trator, he shall not be bound to exhibit an inventory or an account of the estate under this sub-section, unless the court has directed him to do so, in which case he shall exhibit the inventory or the account, as the case may be, within such period as the Court may allow; but copies of the accounts maintained by him shall be filed in court." -

(129) Section 324 (2), and the illustrationito the section, should be deleted.' (130) If the provisions of the Succession Act relating to domicile are extended to A Hindus etc. (as recommended separately), sub-section (3) of section 324 will also have to be deleted, as a Consequential change.' (131) In section 330, the illustration should be revised, so as to express the amounts in decimal coinage.' - ' (132) In regard to section 332 (assent of the executor etc. to legacy). the position should be improved by a suitable clariﬁcation, to the effect that nothing in this section shall be deemed to invalidate a transfer of the property (which is the subject-matter of the legacy) by the legatee before assent by the executor or administrator, but every such transfer shall be regarded as conditional on the 'Paragraph 40.15.

'Paragraph 40. 3!.

'Paragraph 40. 32 .

'Paragraph 40.33.

'Paragraph 41.17.

'Paragraph 41 .30.

'Paragraph 41.30.

'Paragraph 41.36.

290

assent of the executor or the administrator, as the case may be. The section should be amended by inserting an Explanation on the above lines.' Also, in illustration (i) to the section, the words "Imperial Bank of 'India"

should be replaced by the words "State Bank of India."

(133) Section 362 needs a Verbal change, namely, the last four words should read "wasting on the part of the executor" (and not "wasting of the executor").

(134) In section 367, a new sub-section should be inserted, as under :-~-

''(2) Where there has been a grant of administration in ct country other than the country of domicile and other than India, the executor or adminis-» rator may, with the permission of the Court, take the some action as he could have taken if there had been a grant in a country of domicile other than India; and the provisions-of this section shall, with necessary modi- ﬁcations, apply to the case as they apply if there had been a grant in a country of--domicfle Other than India."

Succession Certiﬁcates--Sections 370 to 390 (135) Section 370 bans the grant of succession ceriﬁcate, inter alia, in cases where letters of administration ( or probate) are mandatory'. Letters of adminis- tration are mandatory in the case of Christians other than Indian Christians dying intestate----to mention the most usual situation. The restriction in section 370 is not required, except where probate is mandatory. The bar in section 370 should be limited only to cases where probate is mandatory, In the case of probate, the will has to be proved and it is understandable that without proof of the will, payment should not be made on the strength of :1 mere succession certiﬁcate. But this reasoning does not apply with the same force to letters of administration, where title is sought to be derived on the basis of a right of inheritance conferred by law and no formal writing is, in general, to be proved.

Accordingly, section 370(1) should be revised' as under :--

"(1) A succession certiﬁcate (hereinafter in this Part referred to as a certiﬁcate) shall not be granted under the Part with respect to any debt or security to which a right is required by section 212 or section 213 to be established by . . . . . . . . .. probate."

(Existing proviso to be' omitted, as a consequential change).

(136) There should also be inserted in section 370, a provision for the grant of succession certiﬁcate on survivorship. By making this amendment, the legislature would be merely giving recognition to what is already the practice in some part of India. Although a certiﬁcate, issued to certify survivorship, should be, strictly speaking, described as a "Survivorship certiﬁcate", it is not proposed to change the present nomenclature ("Succession Certiﬁcate"), since it has, by now, become familiar to all concerned.

Accordingly, the following proviso should be added to section 370 (1) :

"Provided that nothing contained in this section shall be deemed to prevent the grant of a certiﬁcate to any person claiming to be entitled on survivorship to the effects of a deceased Hindu, Mohammedan, Buddhist, Sikh, Iain or Parsi or to any part thereof, in respect of any debt or security by 'reason that the right thereto is claimed by survmorshzp and not by succession'. . 3 (137) Section 371 should be revised as follows 1--

"371. The District Judge within whose jurisdiction the deceased, at the time of his death, had a fixed place of abode, or any property, movable or immovable, may grant a certiﬁcate under this Part'.'' 1Paragraph 42. 3.

'Paragraph 42 . 2, footnote.

'Paragraph 46.8.

'Section 212(1).

'Paragraphs 48.4 and 48.5.

'Paragraphs 48.6 and 48 . 8.

'Paragraphs 48.13 and 48.17.

291

(138) To section 372, an Explanation should be inserted below :-

"Explanation---Where the applicant for succession certiﬁcate is a minor, he may apply through a next friend as if he were a plaintiff in a suit, and the provisions of the Code of Civil Procedure, 1908, shall, so far as may be, apply in relation to such next friend as they apply in relation to a next friend sueing under Code'."

(139) In section 379, a new sub-section should be inserted as follows' 1--

"(4) If the application is allowed with or without condition, the sum shall not be refunded, even if, by reason of breach of the condition, the certiﬁcate cannot be granted."

(140) It is also recommended that the provisions of sub-section (3) of section 379 should be made subject to those of new sub-section (4), which is proposed to be inserted, as above, in section 379.

Section 379 (3) should, therefore, begin as follows :~--

"(3) Subject to the provisions of sub-section (4) any sum received - - . - --3".

(141) New section 386A should be inserted, as recommended, to provide the facility of succession certiﬁcate to properties other than debts' Succession by homicide (proposed section 390-A) (142) A new section 390A should be inserted, disqualifying a person who commits culpable homicide, or abets its commission, from inheriting, or from taking as a legatee,----

(a) the property of the person whose death is so caused; or

(b) any other property in furtherance of the succession to which he or she committed or abetted the commission of such homicide.

The new section will not apply to persons to whom section 25 of the Hindu Succession Act, 1955, applies.' Miscellaneous provisions (section 391) and Schedules:

(143) The Third Schedule to the Act will need changes in the light of the points discussed under various sections (sections 63-65) etc'.

'Paragraph 48.23.

'Paragraph 48. 35.

"Paragraph 48.35.

'Paragraph 48.42A, read with paragraphs 48. 19A to 48. 19C. 'Paragraph 49.23.

'Paragraph 50. 5.

I5-Lf3(N')l£4IJ&CA-625--3-S~86--GIPS Sd/-

K. K. MATHEW Chairman Sd/-

J. P; CI-IATURVEDI Member Sd/-

Dr. M. B. RAO Member Sd/-

P. M. BAKSHI Part-time Member Sd/-

VEPA P. SARATHI Part-time Member Sd/-

S. RAMAIAH Member-secretary DATED : 21-2-85

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Law Commission Report

Indian Succession Act, 1925