Indian Succession Act, 1925

Important Definitions

Section 2(a) - "Administrator" means a person appointed by competent authority to

administer the estate of a deceased person when there is no executor.

Section 2(c) - "Executor" means a person to whom the execution of the last will of a
deceased person is, by the testator's appointment, confided.

Distinctions between Administrator & Executor

 Administrator is appointed by competent authority, executor is appointed by testator
i.e. the person who executes the will.
 Administrator is appointed in case of intestate succession; executor in case of
testamentary succession.
 Administrator’s function is to administer the estate of the person died intestate;
executor’s function is to execute the will after the death of testator.

Section 2(b) - "Codicil" means an instrument made in relation to a will, and explaining,
altering or adding to its dispositions, and shall be deemed to form part of the will.
Codicil is an addition to the will, which has three functions;
1. Add
2. Explain
3. Alter
What is in the will and forms part of the will. Suppose a person executes a will, thereafter, he
acquires some more property, which is wants to add in the will, or he feels that any of the
clause is not clear, or he wants to change any of the clauses, in all the three conditions, the
testator has two options, one he executes a new will including the additional property,
explaining the any clause or make a necessary change in the will. Alternatively, instead of
making a new will, he can make a codicil for any of the above purposes in addition to the
will.

Section 2(f) - “Probate” means the copy of a will certified under the seal of a Court of
competent jurisdiction with a grant of administration to the estate of the testator.

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Therefore, copy of the will certified under the seal of the court together with latter of
administration issued by the court of competent jurisdiction is called probate.

Section 2(h) - "Will" means the legal declaration of the intention of a testator with respect to
his property which he desires to be carried into effect after his death.
Features of Will:
1. Legal Declaration – Will is a legal declaration and not a declaration as such. Legal
declaration means the person who makes a declaration must be competent to make
such declaration under section 59 (capacity to make a will) and follow certain legal
formalities as laid down under the Act.
2. With Respect to Property – Such declaration is necessarily with respect to
distribution of his property and not for administration only.
3. Intention to be carried into effect after death – Intention of the testator to
distribution of his estate is to be carried into effect after his death not during his life
time. Any transfer or gift made during life time by a person is called inter vivos.
4. Revocation during Life time – A will is liable to be revoked by the testator any time
so long he is alive. Even if the testator writes that ‘this is my last & irrevocable will’
nonetheless he can revoke the same next day.

PART II: DOMICILE

Application - As per section 4 of the Act provisions relating to domicile under this Act are
not applicable if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jain.

Relevance of Domicile – Section 5 of the Act deals which the rule which is universally
applicable around the globe. If a person dies left behind him his estate, the question arises
with respect to succession as to law of which country will apply.
Succession of immovable property of the deceased will be governed by the law of the country
where the property is situated.
Succession of movable property of the deceased will be governed by the law of the country
where the deceased was domiciled at the time of his death.
Immovable property - Lex Situs.
Movable property - Lex Domicili.

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Domicile has nothing to do with residential status which is governed by Income Tax Act and
Citizenship of a person which is governed by Citizenship Act. Domicile has a very limited
application, just to decide law of which country will govern succession of movable property
of the deceased.
Illustrations:
A, having his domicile in India, dies in France, leaving moveable property in France,
moveable property in England, and property, both moveable and immoveable, in India. The
succession to the entire estate is regulated by the law of India.
A, an Englishman, having his domicile in France, dies in India, and leaves property, both
moveable and immoveable, in India. The succession to the moveable property is regulated by
the law applicable in France, and the succession to the immoveable property is regulated by
the law of India.
Domicile has not been defined in Indian Succession Act, 1925. Two things constitute
domicile of a person i.e. the place where a person stays and intention to stay at that place.
Therefore, factum residandi (fact of resident) and animus mendandi (intention to reside that
place).
There are three category of domicile;
A. Domicile by birth or domicile of origin.
B. Domicile by choice.
C. Domicile by operation of law or domicile of dependent.

A. Domicile by Birth or Domicile of Origin

A man can be without home but he cannot be without domicile. Therefore, the moment a
child is born law attributes him a domicile, which is called domicile of origin or domicile by
birth. Domicile of origin depends on the status of a child whether legitimate, illegitimate or
posthumous (born after the death of his father).

1. Section 7 Domicile of Origin of Person of Legitimate Birth - The domicile of

origin of every person of legitimate birth is in the country in which at the time of his
birth his father was domiciled. Thus a legitimate child gets domicile of his father.
Illustration:
At the time of the birth of A, his father was domiciled in England. A's domicile of origin is in
England, whatever may be the country in which he was born.

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 2. Section 8 Domicile of Origin of Illegitimate Child - The domicile of origin of an
illegitimate child is in the country in which, at the time of his birth, his mother was
domiciled. Thus an illegitimate child gets domicile of his mother.

3. Section 7 Domicile of Origin of Posthumous Child - The domicile of a posthumous

child (a child born after the death of his father) is the country where his father was
domiciled at the time of his death.

Section 9 provides that domicile of origin adheres with a person with him unless he
renounces his domicile of origin and acquires a new domicile. However, strong presumption
is in favour 0f domicile of origin unless contrary is proved.

B. Domicile by Choice
A person of full age may relinquish his domicile of origin and acquire domicile of another
country in any of the following modes;
a. By fixed habitation
b. By special modes

a. By Fixed Habitation - Section 10 provides for acquisition of new domicile by fixed

habitation. A man acquires a new domicile by taking up his fixed habitation in a
country which is not that of his domicile of origin.
Therefore if a person resides in a country, other than the country of domicile of his origin
with intention to reside at that place for the rest of his life, gets domicile of that country by
fixed habitation. Duration of stay in another country is not much relevant, but intention to
reside at that country for the rest of his life is necessary. Prolonged stay without any intention
will not amount to change in domicile of that person.
Illustrations:
A, whose domicile of origin is in England, proceeds to India, where he settles as a barrister or
a merchant, intending to reside there during the remainder of his life. His domicile is now in
India.
A, who was domiciled in England, goes to Austria, and enters the Austrian service, intending
to remain in that service; A has acquired a domicile in Austria.

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A, whose domicile of origin is in France, comes to reside in India under an engagement with
the Central Government for a certain number of years. It is his intention to return to France,
at the end of that period. He does not acquire a domicile in India.

b. By Special Mode of Acquiring Domicile in India - Any person may acquire a

domicile in India by making a depositing in some office in India, appointed in this
behalf by the State Government, a declaration in writing under his hand of his desire
to acquire such domicile; provided that he has been resident in India for one year
immediately preceding the time of his making such declaration.
A person with the age of majority, domiciled of any other country can acquire domicile of
India by making a declaration to the effect that he is relinquishing his domicile of origin of
and wishes to get domicile of India, provided he must have stayed in India at least on year
immediately preceding such declaration.

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

Section 13 provides that if a person who changes his domicile in any of the manner provided
hereinabove, new domicile continues until the domicile of origin has been resumed or another
has been acquired.

C. Domicile by Operation of Law or Domicile of Dependent

Minor person, married woman and lunatic are not capable of having an independent domicile.
Their domicile is dependent on another & any change in the domicile of person on whom
their domicile is dependent, will follow the change in the domicile of such dependant persons
also.

a. Section 14 Minor's Domicile -The domicile of a minor follows the domicile of the
parent from whom he derived his domicile of origin i.e. legitimate and posthumous
child is that of his father, illegitimate child is that of his mother.

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Any change in the domicile of the parent will follow the change in the domicile of child also.
However, domicile of a minor does not change with that of his parent;
i. If the minor is married, or
ii. He holds any office or employment in the service of Government, or
iii. He has set up, with the consent of the parent, in any distinct business.

b. Section 15 Domicile Acquired by Woman on Marriage - On marriage a woman

ceases her domicile of origin and acquires the domicile of her husband, if she had not
the same domicile before.
Illustration;
Mr. X who is domiciled in India, appointed by Government of India as an ambassador of
France, resides there for five years; married to a woman domiciled in France & they a child
born to them in France. In view of section 12 Mr. X will remained domiciled in India, and the
women he married ceased to be domicile in France and acquires domicile of India under
section 15 child born to them will get domicile of India under section 14.
If Mr. X resigned from the post of ambassador, started his business in France with intention
to settle there. Now Mr. X acquires a new domicile of France by fixed habitation under
section 10 of the Act and thereby domicile of his wife and child will also be that of France.

Section 16 states that any change in the domicile of husband will follow change in the
domicile of the wife during marriage. However, wife's domicile no longer follows that of her
husband if;
i. They are separated by the sentence of a competent Court, or
ii. The husband is undergoing a sentence of transportation.

c. Section 18 Lunatic's Acquisition of New Domicile - An insane person cannot

acquire a new domicile in any other way than by his domicile following the domicile
of another person.

Section 19 of the Act deals with succession to moveable property in India in absence of proof
of domicile elsewhere and provides that if a person dies leaving moveable property in India,
in the absence of proof of any domicile elsewhere, succession to the property is regulated by
the law of India. So, if a person died intestate leaving behind movable property in India, and

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in absence of any proof of his domicile, he will be deemed to be domiciled in India and
succession of his movable property will be governed by law applicable in India.

PART IV: CONSANGUINITY

Section 23 Application of Part - Nothing in this Part shall apply to any will made or
intestacy occurring before the first day of January, 1866, or to intestate or testamentary
succession to the property of any Hindu, Muhammadan, Buddhist, Sikh, Jain or Parsi.

Relatives of a diseased fall under two categories;

a. Relation by blood i.e. consanguinity &
b. Relation by marriage i.e. affinity.
Consanguinity is necessarily relation by blood. Section 24 defines consanguinity as the
connection or relation of a person descended from the common ancestor.
There are two types of consanguinity;
a. Lineal consanguinity – descended of a common ancestor in one straight line &
b. Collateral consanguinity descended of a common ancestor but not in straight line.

a. Section 25 Lineal Consanguinity – (1) Lineal consanguinity is that which subsists

between two persons, one of whom is descended in a direct line from the other, as between a
man and his father, grandfather and great-grandfather, and so upwards in the direct ascending
line; or between a man and his son, grandson, great-grandson and so downwards in the direct
descending line.
(2) Every generation constitutes a degree, either ascending or descending.
(3) A person's father is related to him in the first degree, and so likewise is his son; his
grandfather and grandson in the second degree; his great-grandfather and great-grandson in
the third degree, and so on.

b. Section 26 Collateral Consanguinity - Collateral consanguinity is that which subsists

between two persons who are descended from the common ancestor, but neither of whom is
descended in a direct line from the other.
Collateral consanguinity is between brothers (descended of common ancestor i.e. father) or
among first cousins (descended of common ancestor i.e. grandfather).

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 INTESTATE SUCCESSION

There are two types of succession intestate & testamentary succession.

Section 30 of Indian Succession Act provides that a person is deemed to die intestate in
respect of all property of which he has not made a testamentary disposition which is capable
of taking effect.
Illustrations:
A has left no will. A has left a will, whereby he has appointed B his executor; but the will
contains no other provision. A has died intestate in respect of the distribution of his property.
A has bequeathed his whole property for an illegal purpose.

Rules in cases of Intestates other than Parsi

Section 31 Chapter not to apply to Parsis - Nothing in this Chapter shall apply to Parsis.

Section 32 to 49 of the Act deal with the law relating to succession of a Christian dying
intestate, which can be discussed under three steps as follow:

1. General rules
2. Distribution among lineal descendants
3. Distribution among Kindred
1. General Rules

Section 32 to 35 deal with the general rules.

i. Devolution of Property on Widow - If the intestate left behind his widow alone
(widow includes widower) the entire property of the intestate devolves upon his
widow. If there is a valid contract entered into before marriage where she has
excluded from her distributive share of her husband’s share, she will not be
entitled to any share.
ii. Where Intestate has left Widow and Lineal Descendants - If the intestate is
survived by his widow and lineal descendants, one-third of his property will go to
widow, and the remaining two-thirds will go to his lineal descendants (i.e. his
children and children of predeceased children). Distribution among lineal

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 descendants will be discussed in step 2 hereinafter. (Widow/ widower 1/3 and
lineal descendants 2/3/)
iii. Where Intestate has left Widow and Kindred (no Lineal Descendants) - If the
intestate is survived by his widow and kindred (i.e. father, mother, brothers, sisters
and children of predeceased brother or sister) and left no lineal descendant
surviving, him one-half of his property will go to his widow, and the other half to
those who are kindred to him (distribution among kindred will be discussed in
step 3 hereinafter.) It is pertinent to note here that kindred will not get any share
in the estate of intestate so long as any of the lineal descendants survives. (widow
½ kindred ½)
iv. 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 will
go to the widow.
v. Where the net value of the property exceeds the sum of five thousand rupees, the
widow will get five thousand rupees together with interest @ 4% p. a. thereon
from the date when succession opens (i.e. when testator dies) till the payment is
made and balance will be divide half to the widow and another half among
kindred.
vi. Where the intestate has left no widow, his property will go to his lineal
descendants, if no widow and no lineal descendants to those who are of kindred to
him, if he has left none who are of kindred to him, it go to the Government and
Government will take subject to the liabilities attached to it.

Section 35 clarifies that a husband surviving his wife (i.e. widower) has the same rights in
respect of her property, if she dies intestate, as a widow has in respect of her husband's
property, if he dies intestate. It means that the word ‘widow’ herein above refers to widower
also.

2. Distribution among Lineal Descendants

Section 37 to 40 of the Act deal with rules relating to distribution of estate of intestate
after setting aside 1/3 to widow if she survives otherwise entire property, among lineal
descendants.

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 i. Where Intestate has left Child or Children only - Where the intestate
has left surviving him a child or children, but no more remote lineal
descendant through a deceased child (no children of predeceased children),
the property shall belong to his surviving child, if there is only one, or
shall be equally divided among all his surviving children. (Section 37)
Illustration:
A has three children, John, Mary and Henry and no children of any predeceased child. A died
intestate. Each of his children will have 1/3.

ii. Where Intestate has left no Child, but Grandchild or Grandchildren -

Where the intestate has not left surviving him any child but has left a
grandchild or grandchildren and no more remote descendant through a
deceased grandchild, the property shall belong to his surviving grandchild
if there is one, or shall be equally divided among all his surviving
grandchildren.(Section 38)
Illustrations:
A has three children, 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.
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.

iii. Where intestate has left only Great-grandchildren or Remoter Lineal

Descendants - 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. (Section 39)
In all the above three rules discussed hereinabove all the lineal descendants are in the one and
the same degree the then all will share equal and doctrine of representation will not be
applicable.

iv. Where intestate leaves Lineal Descendants not all in same Degree - of
kindred to him, and those through whom the more remote are
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 descended are dead - If the intestate has left lineal descendants who are
not in one or the same degree, i.e. children and children of predeceased
children, in that case children in the same degree will share equally and
children of predeceased children will represent their parents.
Illustrations:
A had three children, John, Mary and Henry; John died, leaving four children, and Mary died,
leaving one, and Henry alone survived the father. On the death of A, intestate, one-third is
allotted to Henry, one-third share of John's will be distributed among his four children i.e.
each children will take 1/12, and the remaining one-third will go to Mary's one child.

A left no child, but left eight grandchildren, and two children of a deceased grandchild. The
property is divided into nine parts, one of which is allotted to each grandchild, and the
remaining one-ninth is equally divided between the two great-grandchildren i.e. 1/18.

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

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

3. Distribution Among Kindred where there are no Lineal Descendants

Section 42 to 48 provides Rules of distribution where intestate has left no lineal descendants
after deducting the widow's share, if he has left a widow.

i. If the intestate's father is living, he will succeed remaining ½ if widow survives

intestate, else entire estate. (Section 42)
ii. If the intestate's father is dead, but the intestate's mother is living and there are
also brothers or sisters of the intestate living, and there is no child living of any

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 deceased brother or sister, the mother and each living brother or sister shall
succeed to the property in equal shares. (Section 43)
Illustration:
A dies intestate, survived by his mother and two brothers, John and Henry, and a sister Mary,
who is the daughter of his mother but not of his father. The mother takes one-fourth, each
brother takes one-fourth and Mary, the sister of half-blood, takes one-fourth.
iii. If the intestate's father is dead but the intestate's mother, any brother or sister and
the child or children of any predeceased brother or sister survive, mother, brother
and sister will get equal share and children of any predeceased brother or sister
will represent their parents. (Section 44)
Illustration:
A, the intestate, leaves his mother, his brothers John and Henry, two children of predeceased
brother George and sister Mary. His mother, two surviving brothers John & Henry and sister
Mary will take 1/5 each and remaining 1/5 will be equally divided between two children of
his predeceased brother George.
iv. If the intestate is survived by his mother and children of predeceased brothers &
sisters only, the mother and the children of each predeceased brother or sister shall
be entitled to the property in equal shares, such children (if more than one) taking
in equal shares only the shares which their respective parents would have taken if
living at the intestate's death. (Section 45)
Illustration:
A, the intestate, leaves no brother or sister but leaves his mother and one child of a deceased
sister, Mary, and two children of a deceased brother, George. The mother takes one-third, the
child of Mary takes one-third, and the children of George divide the remaining one-third
equally between them.
v. If the intestate is survived by mother only (father, brother, sister& children of
brother and sister all are predeceased), the property shall belong to the mother.
(Section 46)
vi. 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 children
predeceased brother and sister will represent their parents. (Section 47)
vii. Where the intestate has left neither lineal descendant, nor parent, nor brother, nor
sister, his property shall be divided equally among those of his relatives who are
in the nearest degree of kindred to him. (Section 48)

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 Succession of Parsi Died Intestate

Question - Discuss special rules relating to succession of a Parsi dying intestates.

Answer - Section 50 to 56 of Indian Succession deals with special rules relating to

succession of a Parsi died intestate. Indian Succession Act does not define Parsi. It is defined
under Parsi Marriage & Divorce Act. A person is Parsi who follows Parsi religion
Zoroastrian. Children born to Parsi Parents are Parsi. If father is Parsi & mother is not a Parsi,
child born to them will be Parsi provided if the child is admitted to Zoroastrian. However, if
the mother is Parsi & father is not Parsi, child is not Parsi, since it is believed that a child get
the sole of his father.

There are three presumptions in succession of a Parsi under section 50:

1. Unborn Child is presumed to be born - There is no distinction between those who
were actually born in the lifetime of a person deceased and those who at the date of
his death were only conceived in the womb, but who have been subsequently born
alive. Therefore, an unborn child who conceived in womb during lifetime of the
intestate but born subsequently alive after the date when succession opens i.e. when
intestate died, is deemed to be present, though actually he was not present.
2. Predeceased lineal descendant presumed to be never born - A lineal descendant of
an intestate who has died in the lifetime of the intestate without leaving a widow or
any lineal will not be counted in succession of intestate and presumed as if he was
never born.
3. Remarriage of a widow is disqualifies as if dead - Where a widow or widower of
any relative of an intestate has married again in the lifetime of the intestate, such
widow or widower shall not be entitled to receive any share of the property of the
intestate and it is presumed as if he/she dead when succession opens, though he/she is
alive.

Prior to the amendment in 1991, there were separate rules of succession of a Parsi male and
Parsi female dying intestate. However, post amendment 1991 same rules are applicable to
both male and female Parsi; therefore word widow refers to widower also hereinafter.

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Succession of a Parsi can be discussed in the following three steps:
A. General rules
B. If any of any of the lineal descendant is predeceased &
C. If no lineal descendant survives.

A. General Rules

1. If a Parsi dies leaving a widow and lineal descendant (i.e. children & children of
predeceased children) all will get equal share. For example if a Parsi died leaving behind
him his widow, two sons and a daughter, each will get 1/4.
2. Where such Parsi dies leaving children, but no widow, property will devolve among the
children in equal shares.
3. Where a Parsi dies leaving one or both parents in addition to widow & children, parents
will also share along with children and widow but property will be so divided that
parents will half the share of each child. For example If a Parsi is survived by his widow,
a son and his father. Widow will get 2/5, son 2/5 and father 1/5. If he is survived by his
widow, son, daughter, father & mother. Widow ¼, son ¼, daughter ¼, father 1/8 and
mother 1/8. (Section 51)

B. If any of any of the Lineal Descendant is Predeceased

In case if any child of such intestate has died in the lifetime of the intestate, the division of
the share of the property will be in accordance with the following rules, namely:

1. If such predeceased child was a son, and if such predeceased son left behind him his
widow or a son, they will take equal share of such predeceased son’s share. Presumption
under law is that as if the son was alive when succession opens, takes share of his father and
died immediately. For example if a Parsi is died intestate, left behind him his son S, daughter
D, widow W and a son and widow of his predeceased so B. A will get ¼, D ¼, W ¼ and
widow and son of B 1/8 each i.e. ½ of ¼.
2. If such deceased child was a daughter, her share shall be divided equally among her
children. Her husband i.e. widower of predeceased daughter will not get any share. (Section
52)

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 C. If no Lineal Descendant Survives Intestate

Where a Parsi dies without leaving any lineal descendant but leaving a widow or a widow of
a lineal descendant, the property of such the intestate will be divided in accordance with the
following rules:
a. If the intestate leaves a widow but no widow of a lineal descendant, the widow or
widower shall take half the said property. (Only widow, no widow of lineal descendant,
widow gets ½.)
b. If the intestate leaves a widow and also a widow of any lineal descendant, his widow
shall receive one-third and the widow of any lineal descendant shall receive another one-third
or if there is more than one such widow of lineal descendants, will divide equally one third.
(Widow of intestate gets 1/3 & widow of lineal descendant of intestate get 1/3.)
c. If the intestate leaves no widow, but one widow of a lineal descendant, such widow of
the lineal descendant shall receive one-third of the said property. (No widow of intestate but a
widow of lineal descendant will get 1/3.)
d. If the intestate leaves no widow but more than one widow of lineal descendants, two-
thirds of the said property shall be divided among such widows of the lineal descendants in
equal shares, (No widow if intestate but more than one widow of lineal descendants 2/3wil be
shared equally.)
e. The residue after the division specified in clause (a) 1/2 or clause (b) 1/3 or clause (c) 2/3
& (d) 1/3 has been made shall be distributed among the relatives of the intestate in the order
specified in Part I of Schedule II.
f. If there are no relatives entitled to the residue under clause (e), the whole of the residue
shall be distributed in proportion to the shares specified among the persons entitled to receive
shares under this section.

Part Two; Testamentary Succession

Application of Testamentary Succession - Section 57 & 58 deal with application i.e. whom
the provisions relating testamentary succession under Indian Succession Act are applicable.

Section 57 Application to Hindu, Buddhist, Jain or Sikh;

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(a) If the will or codicil executed by any Hindu, Buddhist, Sikh or Jain, on or after the first
day of September, 1870, within the territories of three provincial cities of Bombay, Calcutta
or Madras.
(b) If such wills and codicils made outside those territories and limits so far as relates to
immoveable property situate within those territories or limits.
(c) All wills and codicils executed anywhere in India by any Hindu, Buddhist, Sikh or Jain
on or after the first January, 1927, provided that marriage shall not revoke any such will or
codicil.

Section 58 General Application of Part;

(1) The provisions of this Part shall not apply to testamentary succession to the property of
any Muhammadan nor, applicable to Hindu, Buddhist, Jain or Sikh subject to the provisions
of section 57 hereinabove. Shall not 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.

CHAPTER II: Wills and Codicils

Question – Who is competent to make a will?

Section 59 of the Act declares that every person of sound mind not being a minor may
dispose of his property by will. Therefore every person is competent to make a will so for as
he is major and of sound mind.
The followings are the explanations appended to section 59.
Explanation 1 -A married woman may dispose by will of any property which she could
alienate by her own act during her life.
Thus, marriage is not a bar to make a will. Any woman irrespective of single or married so
long as she is major and of sound mind is capable of disposing off her property by will.

Explanation 2 - Persons who are deaf or dumb or blind are not thereby incapacitated for
making a will if they are able to know what they do by it.

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Even a person, who is suffering from severe physical disability like deaf, dumb or blind,
thereby not deprived off his right to make a will, provided he is able to know what he is
doing.

Explanation 3 - A person who is ordinarily insane may make a will during interval in which
he is of sound mind.
A person who is normally of unsound mind, but sometimes becomes of sound mind i.e.
during lucid interval can also make a will when he was of sound mind.

Explanation 4 - No person can make a will while he is in such a state of mind, whether
arising from intoxication or from illness or from any other cause that he does not know what
he is doing.
Thus, a person is incompetent to make a will, if he is in such a state of mind due to either
intoxication, illness or any other reason whatsoever that he does not know what he is doing.

Following illustrations show the degree of mental capacity required to execute a valid
will;
(i) A can perceive what is going on in his immediate neighbourhood, and can answer
familiar questions, but has not a competent understanding as to the nature of his
property, or the persons who are of kindred to him, or in whose favour it would be
proper that he should make his will. A cannot make a valid will. Thus, a person is
competent to make a will if he has sound mind, memory and understanding.
(ii) A, being very feeble and debilitated, but capable of exercising a judgment as to
the proper mode of disposing of his property, makes a will. This is a valid will.

Testamentary Guardian

Section 60 - A father, whatever his age may be, may, by will appoint a guardian or guardians
for his child during minority.
Section 59 dealing with capacity to make a will requires that a person should have attained
the age of majority. However, section 60 states that a person, irrespective of whatever of age,
can make a will thereby appoint a testamentary guardian.

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 Will obtained by Fraud, Coercion or Importunity
There is a difference between void will & void bequest. If the will is void, probate will be out
rate rejected, but if the bequest is void then probate will be rejected for that bequest only and
granted for the rest. Some sections deal with void will and others with void bequest, whereas
some section deal with void will & void bequest both and section 61 is one of them.
Section 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.
So if the entire will making of which is obtained by any of the means hereinabove, probate
will be rejected for entire will. But if any part of the will is so obtained, then probate will be
rejected for that part and granted for the rest.
Coercion & fraud in present section have the same meaning as defined under section 15 &
section 17 respectively of Indian Contract Act, whereas importunity does not include normal
wear & tear. In should be so grave that the testator could not resist.

Illustrations;
(i) A, falsely and knowingly represents to the testator, that the testator's only child is dead, or
that he has done some undutiful act and thereby induces the testator to make a will in his, A's
favour; such will has been obtained by fraud, and is invalid.
(ii) A threatens to shoot B, or to burn his house or to cause him to be arrested on a criminal
charge, unless he makes a bequest in favour of C. B, in consequence, makes a bequest in
favour of C. The bequest is void, the making of it having been caused by coercion.
(iii) A, being in so feeble a state of health as to be unable to resist importunity, is pressed by
B to make a will of a certain purport and does so merely to purchase peace and in submission
to B. The will is invalid.

Will may be Revoked or Altered

Section 62 - A will is liable to be revoked or altered by the maker of it at any time when he is
competent to dispose of his property by will.
This is the unique feature of a will. A testator can revoke his will or alter the same at any time
during his lifetime. Even if he write in his will ‘this is my last and irrevocable will’
nonetheless he can revoke the same. But capacity to revoke will is same as its execution
under section 59 discussed hereinabove i.e. age of majority & sound mind. But the question
of age of majority does not arise, since unless attended the age of majority a person cannot

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execute a will. Thus the testator is required to be of sound mind while revoking or altering a
will.

CHAPTER III: Execution of Unprivileged Wills

Question – Discuss the law relating to execution of, revocation and revival of an
unprivileged Will.
Law relating to execution of unprivileged will is laid down in section 63 of Indian Succession
Act, 1925, revocation section 70 and revival in section 73. There are basically two types of
wills, privileged & unprivileged. A will is called privileged due to the fact that a person who
executes the will is not in a position to comply the necessary legal formalities on account of
the exigency in situation. Therefore, in such cases he gets privilege or he is excused from
complying those necessary formalities. If no such situation to claim any exemption from legal
compliance to execute a will, is called unprivileged will.

Execution of Unprivileged Will

Section 63 lays down the law relating to execution of unprivileged will. At the outset it
section defines unprivileged will, clause (a) signature, clause (b) place of signature and
clause(c) attestation.
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or
an airman so employed or engaged, or a mariner at sea shall execute his will according to the
following rules is called unprivileged will. Since a person who is not a soldier or airman
engaged in actual warfare or in expedition of war or a mariner at sea, will have no privilege
from necessary legal compliance.

Clause (a) Signature - The testator shall sign or shall affix his mark to the will, or it shall be
signed by some other person in his presence and by his direction.
Testator must sign or affix mark to the will. Here the word ‘mark’ includes any mark like tick
mark, thumb impression, rubber stamp of signature etc. In a Bengali will testator wrote
‘Manzoor’ court held this as signature within the meaning of section 63. Section 3(56) of
General Clause Act states that ‘sign’ shall include ‘mark’ with reference to a person who is
unable to write his name. However, under the present section even a person who is able to
write his name; nonetheless he can put his thumb impression or any other mark as signature.

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Present section also permits some other person to sign on behalf of the testator in his presence
and as per his direction. Other person needs not to write name of the testator, he can write his
own name. But other person is not allowed to affix mark and he must sign in presence of and
as per the direction of the testator.
Clause (b) Place of Signature - The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear that it was intended thereby to
give effect to the writing as a will.
There is no specific place where testator is required to sing or affix mark or any other person
is required to sign in presence of and as per direction of testator. Different people have
different practice and habit of signing at different places of the documents. What is required
in the present section that signature etc. should be so placed that it reflects the intention of the
testator that he desires to give effect to that instrument as his will.

Clause (c) Attestation - The will shall be attested by two or more witnesses. Either each of
attesting witnesses must have whom seen while the testator sign or affix his mark to the will
or has seen some other person sign the will, in the presence and by the direction of the
testator or if not present while signing etc. they must have received from the testator a
personal acknowledgment of his signature or mark, or of the signature of such other person.
Therefore, the witnesses need not be present on one and the same time, one of them may be
present, another who was not present may receive personal acknowledgement from testator.

However, each of the witnesses shall sign the will in the presence of the testator. Thus,
witnesses need not be present when the will was signed etc. by the testator, but they must
sign at witness of the will in presence of testator. There is no particular form of attestation
necessary, what is required is signature of the attesting witness to give legal sanctity to the
will. Execution of the will is complete only after attestation by at least two witnesses.

Incorporation of Papers by Reference

Section 64 - If a testator, in a will or codicil duly attested, refers to any other document then
actually written as expressing any part of his intentions, such document shall be deemed to
form a part of the will or codicil in which it is referred to.
If the testator has referred any document in a will or codicil which is dully attested (since the
execution of will is complete after its attestation) and if that document was present at that
time, it will be deemed to be the part & parcel of the will.

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 Privileged Will
Section 65 defines what privileged will is & section 66 modes & rules of execution of
privileged will.
Privileged Wills Section 65 - A will made by a person who has completed the age of 18
years, who is a soldier or an airman, who is engaged in actual warfare or employed in an
expedition of war or mariner on the board of the ship in the manner provided under section
66 is called privileged will.
Illustrations:
i. A, a medical officer attached to a regiment is actually employed in an expedition.
He is a soldier actually employed in an expedition, and can make a privileged will.
ii. A is at sea in a merchant-ship, of which he is the purser. He is a mariner, and,
being at sea, can make a privileged will.
iii. A, a soldier serving in the field against insurgents, is a soldier engaged in actual
warfare, and as such can make a privileged will.
iv. A, a mariner of a ship, in the course of a voyage, is temporarily on shore while she
is lying in harbour. He is, for the purposes of this section, a mariner at sea, and
can make a privileged will.
v. A, an admiral who commands a naval force, but who lives on shore, and only
occasionally goes on board his ship, is not considered as at sea, and cannot make a
privileged will.
vi. A, a mariner serving on a military expedition, but not being at sea, is considered
as a soldier, and can make a privileged will.

Mode of Making, and Rules for Executing, Privileged Wills Section 66 –

Modes:
1. Privileged wills may be in writing, i.e. written or
2. It may be made by word of mouth i.e. oral.
Rules:
1. The will may be written wholly by the testator, with his own hand. In such case it
need not be signed or attested.
Therefore, if he will is written by the testator in his own handwriting, it is exempted
from signature and attestation.
2. It may be written wholly or in part by another person, and signed by the testator. In
such case it need not be attested.

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 Therefore, if a will is written by some other person, but signed by the testator, it is
exempted from attestation.
3. 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.
Therefore, if a will neither written by the testator, nor signed by the testator,
nonetheless it will be a valid will, provides if it is proved that the same was written as
per the direction of the testator and he recognised it as his will.
4. If a person in the situation provided under section 65 (i.e. soldier etc. expedition of
war etc.) has given written instructions for the preparation of his will, and before the
same could be prepared and executed, died, such written instructions will be
considered to constitute his will.
5. If a person in the situation provided under section 65 (i.e. soldier etc. expedition of
war etc.) in the presence of two witnesses, given verbal instructions for the
preparation of his will, but he has died before the instrument could be prepared and
executed, such verbal instructions will be considered to constitute his will provided
they have been reduced into writing in his lifetime, although they may not have been
reduced into writing in his presence, nor read over to him.
6. 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.
7. However, a will made by word of mouth shall be null at the expiration of one month
after the testator, being still alive, has ceased to be entitled to make a privileged will.

CHAPTER V: Attestation, Revocation, Alteration and Revival of Wills

Effect of Gift to Attesting Witness

Section 67 - A will shall not be deemed to be insufficiently attested by reason of any benefit
thereby given either by way of bequest or by way of appointment to any person attesting it, or
to his or her wife or husband; but the bequest or appointment shall be void so far as concerns
the person so attesting, or the wife or husband of such person, or any person claiming under
either of them.
Object of the present section is that attesting witnesses should be impartial and should not
have any vested interest. Any gift to the attesting witness does not render will void, but gift

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to attesting witness or his/her spouse will be void. For example if a will is executed by A,
attested by B & C and in the same will A bequeathed certain property to B and C’s wife. Will
executed by A will be valid, but bequests to B and C’s wife will be void.

However, exception to this section is bequest to attesting witnesses of codicil which confirms
the will. A legatee under a will does not lose his legacy by attesting a codicil which confirms
the will.

Witness not disqualified by Interest or by being Executor

Section 68 - No person, by reason of interest in, or of his being an executor of, a will, shall
be disqualified as a witness to prove the execution of the will or to prove the validity or
invalidity thereof.

Thus, a legatee cannot be debarred to be a witness to prove the execution of the will or its
validity.

Revocation of Will by Testator’s Marriage

Section 69 - Every will shall be revoked by the marriage of the maker, except a will made in
exercise of a power of appointment, when the property over which the power of appointment
is exercised would not, in default of such appointment, pass to his or her executor or
administrator, or to the person entitled in case of intestacy.

If a person who executed a will, thereafter, he marries, the will made prior to marriage stands
revoked ipso facto. Under English law any change in the life style of a person like marriage,
child birth etc. amounts to revocation of the will made prior to that. However, this section is
not apply to a will made by a Hindu by virtue of section 57(c).

Revocation of Unprivileged Will or Codicil

Section 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 with the intention of revoking
the same.

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At the outset this section declares that a will, codicil or any part thereof cannot be revoked
otherwise than the way it is provided in this section. Further following four modes of
revocation are enumerated under the present section:

1. By Marriage – A will stands revoked by marriage subsequent to its execution. It is

pertinent to note that marriage is a mode of revocation of will under section 69 also.
The distinction between section 69 & 70 is that under the previous section marriage is
the sole mode of revocation and applicable all the wills irrespective of privileged or
unprivileged will. Whereas, under present section, marriage is one of the modes of
revocation and applicable to only unprivileged will.
2. By Another Will or Codicil - A will or codicil can be revoked by another will or
codicil. A registered will can be revoked by subsequent unregistered will. Recital of
all most all the will states “this is my last and irrevocable will” does not make it
irrevocable. However, a subsequent will itself does not amount to revocation of
previous will. Another will revokes earlier will only if:
i. Expressed Renunciation: That is to say it the testator declares in the
subsequent will that “I am herewith revoking all my previous will and codicil
& this is my last will.”
ii. Inconsistent: that is the subsequent will is absolutely inconsistent with
contrary to the previous.

If there is no expressed renunciation nor inconsistency & contraction, then both the
instruments will be valid. If after the death of the testator two will are found either
same date or no date and both of them are inconsistent with & contrary with each
other, both wills will be void and testator is deemed to die intestate.

3. By Some Writing – 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.
In addition to another will or codicil, another mode of revocation of an unprivileged
will or codicil is by any writing which declares intention of testator that he is revoking
his will, provided such writing should be executed in the same manner as requited to
execute an unprivileged will under section 63 i.e. signature, intention behind signature
and attestation.

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 4. By the Burning, Tearing, or otherwise Destroying: 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 act of destruction of the will by testator himself or by any other person in his
presence and by his direction should be accompanied with intention of revocation.

Effect of Obliteration, Interlineation or Alteration in Unprivileged Will

Section 71 - No obliteration (complete destruction), interlineation (writing between lines) or

other alteration (change) made in any unprivileged will after the execution thereof shall have
any effect, except so far as the words or meaning of the will have been thereby rendered
illegible or 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 on some other part
of the will opposite or near to such alteration, or at the foot or end of or opposite to a
memorandum referring to such alteration, and written at the end or some other part of the
will.

In order to remove any part of the will, insert anything between the lines or change any part
of the will, after it has been duly executed, same formalities are required as execution of the
unprivileged will under section 63, and failing which any obliteration, interlineation or
alteration will not be valid.

Revocation of Privileged Will or Codicil

Section 72 - A privileged will or codicil may be revoked by the testator in any of the
following ways.

1. By an Unprivileged Will or Codicil - If a testator after execution of a privileged will

executes another unprivileged will, the privileged will stands revoked. It is always the
last will prevails over earlier one.
2. By any Act expressing an Intention to Revoke – Such act of testator expressing his
intention to revoke his privileged will should be accompanied by such formalities as
would be sufficient to give validity to a privileged will as laid down under section 66
of the Act.

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 3. By Destruction with Intention to Revoke - That is to say by burning, tearing or
otherwise destroying the same by the testator or by some person in his presence and
by his direction, with the intention of revoking the same. Therefore, mere act of
destruction of privileged Will alone will not amount to revocation. The act of
destruction i.e. burning, tearing or otherwise destroying should be accompanied with
intention of revocation.
Explanation appended to this section states that in order to the revocation of a
privileged will or codicil by an act accompanied by such formalities as would be
sufficient to give validity to a privileged will, it is not necessary that the testator
should at the time of doing that act be in a situation which entitles him to make a
privileged will. Therefore, a soldier, airman or mariner need not be engaged in
warfare or on the ship at the time of revocation of privileged will as required at the
time of its execution.

Revival of Unprivileged Will

Section73 - No unprivileged will or codicil, nor any part thereof, which has been revoked in
any manner, shall be revived otherwise than by the re-execution thereof, or by a codicil
executed in manner hereinbefore required, and showing an intention to revive the same.

Present section deals with the situation where an unprivileged will which was executed,
thereafter revoked and the testator wants to restore the same. It can be revived in any of the
following two ways only:

1. By Re-execution – That is making a new will altogether with the identical contents
and clauses of the earlier will which has been revoked. It brings down the will to the
date of its new will re-executed.
2. By Codicil – Instead of re-execution of a new will as discussed hereinabove, the
testator can just make a codicil, declaring his intention of reviving his will which he
has revoked in any manner as provided in section 70. However, this declaration in of
intention of revival in the form of codicil is to be made by following the procedure &
formalities as provide in section 63 i.e. execution of unprivileged will.

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 CHAPTER VI - Construction of Wills

Wording of Wills Section 74 - It is not necessary, that any technical words or terms of art be
used in a will, but only that the wording is such that the intentions of the testator can be
known therefrom.

Section 74 makes it clear that in drafting a will it is not necessary to use technical words or
terms of art, need not be drafted by the legal expert by using legal jargons. What is required is
that whatever words used, the intention of the testator could be drawn that he wanted to give
effect to that instrument as his will.

Misnomer or Mis-description of Object

Section76 - (1) Where the words used in a will to designate or describe a legatee or a class of
legatees sufficiently show what is meant, and error in the name or 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.

Present section provides that a legacy will not fail simply because name of the legatee is
wrong or description of the legatee is wrong provided words used in the will clearly show
what is meant. An error or mistake in the name is capable of being corrected by right
description of the legatee; on the other hand an error or mistake in the description is capable
of being corrected by right name.

Illustrations:

(i) A bequeaths a legacy to “Thomas, the second son of my brother John”. The testator has
an only brother named John, who has no son named Thomas, but has a second son whose
name is William. William will have the legacy. (Wrong name is corrected by right
description.)

(ii) A bequeaths a legacy “to Thomas, the second son of my brother John”. The testator has
an only brother, named John, whose first son is named Thomas and whose second son is
named William. Thomas will have the legacy. (Wrong description is corrected by right
name.)

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

When Words may be supplied

Section 77 - Where any word material to the full expression of the meaning has been omitted,
it may be supplied by the context.

Sometimes it may happen that in haste moment negligently any word my skip, it may be
added while interpretation of the will if the same is material to the full expression of the
meaning.

For example if the testator gives a legacy of “five hundred” to his daughter A and a legacy of
“five hundred rupees” to his daughter B. Here word ‘rupees’ which is missing will be
supplied & A will take a legacy of five hundred rupees.

Rejection of Erroneous Particulars in Description of Subject

Section 78 - If the thing, which the testator intended to bequeath, can be sufficiently
identified from the description of it given in the will, but some parts of the description do not
apply, such parts of the description shall be rejected as erroneous, and the bequest shall take
effect.

While designating the subject matter of the bequest, several descriptions are given and thing
answers most of the descriptions, but not some of the descriptions, the legacy will take effect
as descriptions not matching will be rejected as erroneous. For example A bequeaths to B
“my marsh-lands lying in L and in the occupation of X”. The testator had marsh-lands lying
in L but had no marsh-lands in the occupation of X. The words “in the occupation of X” will
be rejected as erroneous, and the marshlands of the testator lying in L will pass by the
bequest. Another example the testator bequeaths to A “my zamindari of Rampur”. He had an
estate at Rampur but it was a taluqa and not a zamindari. The taluqa will pass to A.

Section79 – The previous section deals with a situation where part of description is rejected
as erroneous whereas present section when part of description may not be rejected as
erroneous. If a will mentions several circumstances as descriptive of the thing which the
testator intends to bequeath, and there is any property of his in respect of which all those
circumstances exist, the bequest shall be considered as limited to such property, and it shall

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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.

That is to say if testator left behind him two properties, one answers all the description and
another most of them but some of the descriptions are not matching, the legatee will take only
the property which answers all descriptions. For example A bequeaths to B “my marsh-lands
lying in L and in the occupation of X”. The testator had marsh-lands lying in L, some of
which were in the occupation of X, and some not in the occupation of X. The bequest will be
considered as limited to such of the testator's marsh-lands in L as were in the occupation of
X.

Ambiguities

If there are ambiguities in the will, the question arises whether extrinsic i.e. outside evidence
should be admissible to prove the intention of the testator. It depends on the type of
ambiguity whether it is apparent on the face, or in application.

Extrinsic evidence admissible in cases of patent ambiguity Section 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.
Therefore, if there is no ambiguity on the face of the will but in its application i.e. while
reading the will its appears to be very clear, but in its implementation more than one
application crop up, the in that case outside evidence will be admissible to show which of
these application was intended.

For example a man, having two cousins of the name of Mary, bequeaths a sum of money to
"my cousin Mary". It appears that there are two cousins and both of the named Mary. That
description, therefore, admits of two applications, only one of which can have been intended
by the testator. Evidence is admissible to show which of the two applications was intended.
Another example A, by his will, leaves to B "my estate called Sultanpur Khurd". It turns out
that he had two estates called Sultanpur Khurd. Evidence is admissible to show which estate
was intended.

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81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency. -Where
there is an ambiguity or deficiency on the face of a will, no extrinsic evidence as to the
intentions of the testator shall be admitted.
Thus, if the ambiguity is very much on the face of the will, in that case no evidence is
admissible to show the intention of the testator and such bequest will be void. For example
Foe example A bequeaths 1,000 rupees to leaving a blank for the name of the legatee.
Evidence is not admissible to show what name the testator intended to insert, or A bequeaths
to B rupees, or "my estate of ". Evidence is not admissible to show what sum or what estate
the testator intended to insert. Both the bequests are therefore, void for uncertainty under
section 89.

Which of two Possible Constructions Preferred

Section 84 - Where a clause is susceptible of two meanings according to one of which it has
some effect, and according to the other of which it can have none, the former shall be
preferred.
Therefore, if interpretation of a particular clause in a will leads two different meanings and
one meaning has some effect & another has none, then fist interpretation will be preferred.

Will or Bequest Void for Uncertainty

Section 89 - A will or bequest not expressive of any definite intention is void for uncertainty.
If a bequest fails to show any specific intention, and the same is uncertain or ambiguous will
be void.
For example If a testator says "I bequeath goods to A," or "I bequeath to A," or "I leave to A
all the goods mentioned in the Schedule" and no Schedule is found, or "I bequeath "money,'
'wheat,' 'oil,' or the like, without saying how much, this is void.

Words Describing Subject Refer to Property Answering Description at Testator's Death

Section 90 - The description contained in a will of property, the subject of gift, shall, unless a
contrary intention appears by the will, be deemed to refer to and comprise the property
answering that description at the death of the testator.
As defined under section 2 (h) a will is a legal declaration of intention of the testator with a
respect to his property which he intends to be carried out after his death. Therefore a
property which is the subject matter of bequest should answer description at the time of death
of the testator not during his life time. A testator bequeathed to X ‘all my property which now

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I seize a possessed’ and at the time of execution of the will his entire property was worth
rupees 50, 000/-, and when testator died he left behind him his estate worth 5, 00,000/-. X
will get a legacy of 5, 00,000/- as the meaning of word ‘now’ is when the testator died and
not the date of execution of the will.

Cumulative & Non-cumulative Bequests

Section 101 - Rules of construction where will purports to make two bequests to same
person – When more than one bequests given to the same legatee, and there is nothing in the
will to show what testator intended, the following rules will determine whether the second
bequest is in alternative to first bequest or in addition:
(a) Same Article in Same Document or Different Documents - If the same specific thing is
bequeathed twice to the same legatee in the same will or in the will and again in the codicil,
he is entitled to receive that specific thing only. For example, A having one diamond ring,
which was given him by B, bequeaths to C the diamond ring which was given by B. A
afterwards made a codicil to his will, and thereby, after giving other legacies, he bequeathed
to C the diamond ring which was given him by B. C can claim nothing except the diamond
ring which was given to A by B.
(b) Same Amount Same Document - Where one and the same will or one and the same
codicil purports to make, in two places, a bequest to the same person of the same quantity or
amount of anything, he shall be entitled to one such legacy only. For example A, by his will,
bequeaths to B the sum of 5,000 rupees and afterwards in the same will repeats the bequest in
the same words. B is entitled to one legacy of 5,000 rupees only.
(c) Different Amount Same Document - Where two legacies of unequal amount are given
to the same person in the same will, or in the same codicil, the legatee is entitled to both. For
example A, by his will, bequeaths to B the sum of 5,000 rupees and afterwards in the same
will bequeaths to B the sum of 6,000 rupees. B is entitled to receive 11,000 rupees.
(d) Different Document Equal or Unequal Amount - Where two legacies, whether equal or
unequal in amount, are given to the same legatee, one by a will and the other by a codicil, or
each by a different codicil, the legatee is entitled to both legacies. For Example A, by his will,
bequeaths to B 5,000 rupees and by a codicil to the will he bequeaths to him 5,000 rupees. B
is entitled to receive 10,000 rupees.

Question – How is a residuary legatee constituted? What are the properties a residuary
legatee is entitled to?

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Section 102 provides constitution of residuary legatee whereas, section 103, property to
which a residuary legatee is entitled to.
Constitution of Residuary Legatee
Section 102 - A residuary legatee may be constituted by any words that show an intention on
the part of the testator that the person designated shall take the surplus or residue of his
property e.g. A bequeaths all his property to B, except certain stocks and funds, which he
bequeaths to C. B is the residuary legatee.
There is no specific procedure to constitute residuary legatee as such. Any words which show
the intention of the testator that after specific property given to others if anything left will go
to a legatee described will be a residuary legatee, in spite of the fact he may have not been
designated residuary legatee as such.
Property to which Residuary Legatee Entitled
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 any other testamentary
disposition which is capable of taking effect. A by his will bequeaths certain legacies, of
which one is void under section 118, and another lapses by the death of the legatee. He
bequeaths the residue of his property to B. After the date of his will A purchases a zamindari,
which belongs to him at the time of his death. B is entitled to the two legacies and the
zamindari as part of the residue.
Therefore a residuary will be entitled to:
1. The bequest which is void.
2. The bequest which lapses.
3. Future acceleration after execution of will, not added in the will by codicil or
otherwise.

Time of Vesting Legacy in General Terms

Section - 104 If a legacy is given in general terms, without specifying the time when it is to
be paid, the legatee has a vested interest in it from the day of the death of the testator, and, if
he dies without having received it, it shall pass to his representatives. E.g. a testator
bequeathed certain property to A. Interest in the property is vested in A upon the death of the
testator, and if a dies without having received the legacy, it will pass to his heirs.

Question - Discuss the law relating to lapsing of legacy and its exception under Indian
Succession Act, 1925.

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 In what Case Legacy Lapses
Section 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.
(2) In order to entitle the representatives of the legatee to receive the legacy, it must be
proved that he survived the testator.
According to section 105 (1) in order to take a legacy, legatee must survive the testator and in
case legatee predeceased testator (i.e. dies during the lifetime of testator) legacy will lapse
and will constitute the part of residuary legacy unless the testator desires that it will pass to
some other legatee so designate in the will. For example a testator bequeathed certain
property to A however; A died during life time of testator, and thereafter testator dies. Legacy
will lapse and will form the part of residuary legacy unless the testator has mentioned in the
will that in the event of death of A during his lifetime then it will pass to B.
It is pertinent to note that if there is no residuary legatee nor any one is designated to get the
bequest in case testator survive the legatee, the testator is deemed to die intestate.
Section 105 (2) provides that in case where the legatee survives testator, but dies before he
could get the legacy, in that case his heirs & legal representative will receive the same, since
the interest in legacy vested in legatee immediately after death of tester, though possession is
deferred.
Illustrations:
(i) The testator bequeaths to B "50000 rupees which B owes me". B dies before the testator;
the legacy lapses therefore, testator’s heirs will step in the shoes of testator and recover the
said debt from B.
(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 died 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.
Exceptions - Followings are the exceptions to the lapsing of legacy i.e. legacy will not lapse
even if the legatee dies before testator.

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1. Section 106 Legacy does not lapse if one of two joint legatees dies before testator:
If a legacy is given to two persons jointly, and one of them dies before the testator, the
legacy will not lapse but other legatee takes the whole.
Illustration
The legacy is simply to A and B. A died before the testator. B takes the legacy.
2. Section 107 Effect of words showing testator's intention to give distinct shares: 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 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
died before the testator. B and C will only take so much as they would have had if A
had survived the testator.
3. Section 108 When lapsed share goes as undisposed of: Where a share which
lapses is a part of the general residue bequeathed by the will, that share shall go as
undisposed of.
Illustration
The testator bequeaths the residue of his estate to A, B and C, to be equally divided
between them. A died before the testator. His one-third of the residue goes as
undisposed of.

4. Section 109. When bequest to testator's child or lineal descendant does not lapse
on his death in testator's lifetime: Where a bequest has been made to any child or
other lineal descendant of the testator, and the legatee dies in the lifetime of the
testator, but any lineal descendant of his survives the testator, the bequest shall not
lapse, but shall take effect as if the death of the legatee had happened immediately
after the death of the testator, unless a contrary intention appears by the will.
Presumption under Law as if legatee was alive, took legacy after his father’s death
and immediately after that he died.
Illustration
A makes his will, by which he bequeaths a sum of money to his son, B, for his own
absolute use and benefit. B dies before A, leaving a son, C, who survives A, and
having made his will whereby he bequeaths all his property to his widow, D. The
money goes to D.

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 5. Section 110 Bequest to A for benefit of B does not lapse by A's death: Where a
bequest is made to one person for the benefit of another, the legacy does not lapse by
the death, in the testator's lifetime, of the person to whom the bequest is made. Status
of legatee is that of a trustee, and actual beneficiary is someone else.
6. Section 111 Survivorship in case of bequest to described class: Where an 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.
Illustrations
A bequeaths 1,000 rupees to "the children of B" without saying when it is to be distributed
among them. B had died previous to the date of the will, leaving three children, C, D and E. E
died after the date of the will, but before the death of A. C and D survive A. The legacy will
belong to C and D, to the exclusion of the representatives of E.

CHAPTER VI - Void Bequests

Section 89 - A will or bequest not expressive of any definite intention is void for uncertainty.
If a bequest fails to show any specific intention, and the same is uncertain or ambiguous will
be void.
1. Section 112 Bequest to person by particular description, who is not in existence
at testator’s death - Where a bequest is made to a person by a particular description,
and there is no person in existence at the testator's death who answers the description,
the bequest is void. E.g. A bequeaths 10,000 rupees to the eldest son of B. At the
death of the testator, B has no son. The bequest is void.
Therefore, a bequest to a person whose description is given by the testator & at the
time of death there is no person is in existence who answers that description.
2. Section 113 Bequest to person not in existence at testator's death subject to prior
bequest - Where a bequest is made to a person not in existence at the time of the
testator's death, subject to a prior bequest contained in the will, the later bequest shall
be void, unless it comprises the whole of the remaining interest of the testator in the
thing bequeathed.

3. Section 114 Rule against Perpetuity - No bequest is valid whereby the vesting of the
thing bequeathed may be delayed beyond the life-time of one or more persons living

35
 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.
Law does not favour indefinite time for vesting of legacy. For example a bequest to A
for his life, thereafter to A’s son B for his life, then to B’s son D and thereafter to next
generation to generation and no one become absolute owner. Such bequest is void.
4. Section 115 Bequest to a class some of whom may come under rules in sections
113 and 114 - If a bequest is made to a class of persons with regard to some of whom
it is inoperative by reason of the provisions of section 113 or section 114, such
bequest shall be void in regard to those persons only, and not in regard to the whole
class.
5. Section 116 Bequest to take effect on failure of prior bequest – Where by reason of
any of the rules contained in sections 113 and 114, any bequest in favour of a person
or of a class of persons is void in regard to such person or the whole of such class, any
bequest contained in the same will and intended to take effect after or upon failure of
such prior bequest is also void.
6. Section 117 Effect of direction for accumulation -(1) Where the terms of a will
direct that the income arising from any property shall be accumulated either wholly or
in part during any period longer than a period of eighteen years from the death of
the testator, such direction shall, save as hereinafter provided, be void to the extent to
which the period during which the accumulation is directed exceeds the aforesaid
period, and at the end of such period of eighteen years the property and the income
thereof shall be disposed of as if the period during which the accumulation has been
directed to be made had elapsed.
Therefore, a bequest of property with direction to accumulate the income of that
property for 20 years, such accumulation is void for last two years i.e. after 18 th year
years.
7. Section 118 Bequest to religious or charitable uses - No man having a nephew or
niece or any nearer relative shall have power to bequeath any property to religious or
charitable uses, except:
i. By a will executed not less than twelve 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.
Provided that nothing in this section shall apply to a Parsi. (Added by Act 51 of 1991)

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 This section is as sort of cooling off period. Sometimes it may happen out of heat of
passion, bequeath his property to charitable purpose, depriving his close relatives off
their right to inherit property of the testator. In such case 12 months period is given
with a view that he may change his mind and revoke his will.

CHAPTER VIII: Vesting of Legacies

Vested Interest
Section 119 Date of Vesting of Legacy when Payment or Possession Postponed - Where
by the terms of a bequest the legatee is not entitled to immediate possession of the thing
bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears
by the will, become vested in the legatee on the testator's death, and shall pass to the legatee's
representatives if he dies before that time and without having received the legacy, and in such
cases the legacy is from the testator's death said to be vested in interest.
Section 104 as discussed herein before provides if a legacy is given in general terms, without
specifying the time when it is to be paid, the legatee has a vested interest in it from the day of
the death of the testator, and, if he dies without having received it, it shall pass to his
representatives. Section 119 provides the date of vesting of legacy when payment or
possession is deferred. Vesting of legacy in interest is different from vesting of legacy in
possession. For example a fund is bequeathed to A for life, and after his death to B. On the
testator's death the legacy is vested in interest and possession both so far as A is concern,
whereas, so far B is concern, legacy is vested in interest at present but right of enjoyment is
differed till the death of A. If B dies during life time of A, upon A’s death B’ heirs & legal
representative will get the legacy, since interest in legacy was vested in B immediately on
testator’s death.
A bequeaths to B 100000 rupees, to be paid to him at the death of C. On A's death the legacy
becomes vested in interest in B, and if he dies before C, his representatives are entitled to the
legacy.
Contingent Interest
Section 120 Date of Vesting when Legacy Contingent upon Specified Uncertain Event –
(1) A legacy bequeathed in case a specified uncertain event shall happen does not vest until
that event happens.

37
(2) A legacy bequeathed in case a specified uncertain event shall not happen does not vest
until the happening of that event becomes impossible.
(3) In either case, until the condition has been fulfilled, the interest of the legatee is called
contingent.
Illustrations:
A legacy is bequeathed to D in case A, B and C shall all die under the age of 18. D has a
contingent interest in the legacy until A, B and C all die under 18, or one of them attains that
age.
An estate is bequeathed to A for life, and after his death to B if B shall then be living; but if B
shall not be then living to C. A, B and C survive the testator. B and C each take a contingent
interest in the estate until the event which is to vest it in one or in the other has happened.
Difference Between Vested Interest & Contingent Interest; In case of vested interest
legacy is vested in legatee upon the death of the testator immediately, may be possession or
payment is deferred in future. In contingent interest vesting of interest is dependent on
happening or not happening of an uncertain event and in either case, if the event happens or
becomes does not happen, bequest becomes void.
Section 121 Vesting of Interest in Bequest to Such Members of a Class as shall have
Attained Particular Age - Where a bequest is made only to such members of a class as shall
have attained a particular age, a person who has not attained that age cannot have a vested
interest in the legacy.
Illustration:
A fund is bequeathed to such of the children of A as shall attain the age of 18, with a
direction that, while any child of A shall be under the age of 18, the income of the share, to
which it may be presumed he will be eventually entitled, shall be applied for his maintenance
and education. No child of A, who is under the age of 18, has a vested interest in the bequest.

CHAPTER IX: Onerous Bequests

Section 122 Onerous Bequests - Where a bequest imposes an obligation on the legatee, he
can take nothing by it unless he accepts it fully.
If certain liabilities or obligations are attached to a bequest, the legatee will not get the legacy
unless he pays the liabilities or accept the obligations attached to such legacy. He cannot take
the beneficial part and reject the onerous one. One cannot blow hot & cold one & the same
time. One who accepts roses must accept thrones along with it.
Illustration:

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A, having shares in (X), a prosperous joint stock company and also shares in (Y), a joint
stock company in difficulties, in respect of which shares heavy calls are expected to be made,
bequeaths to B, all his shares in joint stock companies; B refuses to accept the shares in (Y).
He forfeits the shares in (X).
123. One of two Separate and Independent Bequests to Same Person may be Accepted
and Other Refused - Where a will contains two separate and independent bequests to the
same person, the legatee is at liberty to accept one of them and refuse the other, although the
former may be beneficial and the latter onerous.
Section 123 is an exception to section 122. When there are two separate & independent
bequests, legatee is entitled to exercise right of election by accepting one which is beneficial
one & rejection another which is onerous.
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.

CHAPTER XI: Conditional Bequests

Section 126 Bequest upon Impossible Condition - A bequest upon an impossible condition
is void.
Illustrations:
An estate is bequeathed to A on condition that he shall walk 100 miles in an hour. The
bequest is void.
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.
Section 127 Bequest upon Illegal or Immoral Condition - A bequest upon a condition, the
fulfilment of which would be contrary to law or to is void.
Illustrations:
A bequeaths 500 rupees to B on condition that he shall murder C. The bequest is void.
A bequeaths 5,000 rupees to his niece if she will desert her husband. The bequest is void.

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 Condition Precedent & Condition Subsequent
Section 128 Fulfilment of Condition Precedent to Vesting of Legacy - Where a will
imposes a condition to be fulfilled before the legatee can take a vested interest in the thing
bequeathed, the condition shall be considered to have been fulfilled if it has been
substantially complied with.
Illustrations:
A legacy is bequeathed to A on condition that he shall marry with the consent of B, C, D and
E. A marries with the written consent of B. C is present at the marriage. D sends a present to
A previous to the marriage. E has been personally informed by A of his intentions, and has
made no objection. A has fulfilled the condition.
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.
Section 129 Bequest to A and on Failure of Prior Bequest to B – Where there is a bequest
to one person and a bequest of the same thing to another, if the prior bequest shall fail, the
second bequest shall take effect upon the failure of the prior bequest although the failure may
not have occurred in the manner contemplated by the testator.
Illustrations:
A bequeaths a sum of money to his own children surviving him, and, if they all die under 18,
to B. A died without having ever had a child. The bequest to B takes effect.
A bequeaths a sum of money to B, on condition that he shall execute a certain document
within three months after A's death, and, if he should neglect to do so, to C. B died in the
testator's lifetime. The bequest to C takes effect.
Section 130 When Second Bequest not to take Effect on Failure of First - Where the will
shows an intention that the second bequest shall take effect only in the event of the first
bequest failing in a particular manner, the second bequest shall not take effect, unless the
prior bequest fails in that particular manner.
Illustration:
A makes a bequest to his wife, but in case she should die in his lifetime, bequeaths to B that
which he had bequeathed to her. A and his wife perish together, under circumstances which
make it impossible to prove that she died before him, the bequest to B does not take effect.
Condition Precedent v. Condition Subsequent
 In condition precedent, fulfilment of condition precedes vesting of legacy i.e. legatee
is required to first fulfil condition then only legacy will be vested to him. But in case

40
 of condition subsequent, legacy is vested immediately upon the death of testator;
thereafter he has to comply with the condition.
 If the legatee fails to fulfil condition, legacy will never vested in interest to him. In
case of condition subsequent if the legatee fails to fulfil condition, he will be divested
with legacy which was already vested to him on death of testator.
 Impossible condition – In case of condition precedent, the bequest is void, since the
legatee will never be able to fulfil condition, which precedes vesting. In condition
subsequent, bequest is valid & condition is void, since the moment testator dies the
legacy is vested in legatee, thereafter he is required to fulfil condition which is
impossible.
 Condition precedent is said to have been fulfilled when is the complied substantially.
Condition subsequent must be strictly complied with.

CHAPTER XIII: Bequests to an Executor

Section 141 Legatee Named as Executor Cannot Take unless he shows Intention to Act
as Executor - If a legacy is bequeathed to a person who is named an executor of the will, he
shall not take the legacy, unless he proves the will or otherwise manifests an intention to act
as executor.
Therefore, bequest to an executor is a sort of conditional bequest .i.e. condition precedent.
Executor will get legacy only after either he proves the will or there must be some sort of
external manifestation (overact) of his intention to act an executor.
Illustration:
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’s heirs & legal representative will be entitled to legacy though A had not proved
the will but manifested an intention to act as executor by ordering funeral of testator
according to direction contained in the will.

CHAPTER XIV: Specific Legacies

Section 142 Specific Legacy Defined - Where a testator bequeaths to any person a specified
part of his property, which is distinguished from all other parts of his property, the legacy is
said to be specific.

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Illustrations:
A bequeaths to B - "the diamond ring presented to me by C": "my gold chain":
Section 147 Retention, in form, of Specific Bequest to Several Persons in Succession -
Where property is specifically bequeathed to two or more persons in succession, it shall be
retained in the form in which the testator left it, although it may be of such a nature that its
value is continually decreasing.
Thus, if there is a bequest of specific property to two or more persons in succession i.e. one
after another, in that case the property which is the subject matter of the bequest will be kept
in the same form as left by the testator after his death, though the value of property keeps on
decreasing.
Illustrations:
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.

CHAPTER XV: Demonstrative Legacies

Section 150 Demonstrative Legacy Defined -Where a testator bequeaths a certain sum of
money, or a certain quantity of any other commodity, and refers to a particular fund or stock
so as to constitute the same the primary fund or stock out of which payment is to be made,
the legacy is said to be demonstrative.
Explanation - The distinction between a specific legacy and a demonstrative legacy consists
in this, that- where specified property is given to the legatee, the legacy is specific; where the
legacy is directed to be paid out of specified property, it is demonstrative.

CHAPTER XVI: Ademption of Legacies

Section 152 defines ademption of legacy, section153 makes it clear that only specific legacy
is subjected to ademption whereas demonstrative legacy will not adeemed but will be paid
out of general fun in case of deficiency. Section 154 to 159 deal with the circumstances in
which a legacy is adeemed, whereas section 160 to 166 deals with circumstances which do
not amount to ademption.

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Ademption of Legacy
Section 152 Ademption Explained - If anything which has been specifically bequeathed
does not belong to the testator at the time of his death, or has been converted into property of
a different kind, the legacy is adeemed; that is, it cannot take effect, by reason of the subject
matter having been withdrawn from the operation of the will.
Section 90 of the Act provides that the subject matter of the bequest should answer the
description at the time of death of the testator. Therefore, if anything which is specifically
bequeathed by the testator in his will is withdrawn from the operation of the will i.e.:
i. Ceases to exist at the time of death of testator.
ii. Converted into the property of different kind or does not remain in the specie in
which it was bequeathed.
iii. It does not belong to the testator at the time of his death.
This will amount to ademption of legacy.
Illustrations:
A bequeaths to B - "the diamond ring presented to me by C": "my gold chain": "a certain bale
of wool". A in his lifetime, sells or gives away the ring: converts the chain into a cup:
converts the wool into cloth. Each of these legacies is adeemed.
Only Specific Legacy is Adeemed
Section 153 Non-ademption of Demonstrative Legacy - A demonstrative legacy is not
adeemed by reason that the property on which it is charged by the will does not exist at the
time of the death of the testator, or has been converted into property of a different kind, but it
shall in such case be paid out of the general assets of the testator.
Thus, if the fund or stock which is which is demonstrated out of which the amount is to be
paid or thing to be given, ceases to exist, the legatee will be paid out of general fund or stock
of the testator.
Followings are the cases of ademption of legacy;
1. Section 154 Ademption of Specific Bequest of Right to Receive Something from
Third Party - Where the thing specifically bequeathed is the right to receive
something of value from a third party, and the testator himself receives it, the bequest
is adeemed.
Illustrations:
A bequeaths to B "the debt which C owes me 20,000 rupees which I have in the hands of D":
"the money due to me on the bond of E": "my mortgage on the Rampur factory."

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All these debts are extinguished in A's lifetime, some with and some without his consent. All
the legacies are adeemed.
2. Section 155 Ademption pro tanto (only to that extent) by Testator's Receipt of
Part of Entire Thing Specifically Bequeathed -The receipt by the testator of a part
of an entire thing specifically bequeathed shall operate as an ademption of the legacy
to the extent of the sum so received.
Illustration
A bequeaths to B "the debt due to me by C". The debt amounts to 10,000 rupees. C pays to A
5,000 rupees the one-half of the debt. The legacy is revoked by ademption, so far as regards
the 5,000 rupees received by A.
3. Section 156 Ademption pro tanto by Testator's Receipt of Portion of Entire Fund
of which Portion has been Specifically Bequeathed - If a portion of an entire fund
or stock is specifically bequeathed, the receipt by the testator of a portion of the fund
or stock shall operate as an ademption only to the extent of the amount so received;
and the residue of the fund or stock shall be applicable to the discharge of the specific
legacy.
Illustration:
A bequeaths to B one-half of the sum of 10,000 rupees due to him from X. A in his lifetime
receives 6,000 rupees, part of the 10,000 rupees. The 4,000 rupees which are due from W to
A at the time of his death belong to B under the specific bequest.
4. Section 157 Order of Payment where Portion of Fund Specifically
Bequeathed to one Legatee, and Legacy Charged on Same to another,
and, Testator having Received Portion of that Fund, Remainder
Insufficient to Pay Both Legacies - Where a portion of a fund is specifically
bequeathed to one legatee (specific), and a legacy charged on the same fund is
bequeathed to another legatee (demonstrative), then, if the testator receives a
portion of that fund, and the remainder of the fund is insufficient to pay both
the specific and the demonstrative legacy, the specific legacy shall be paid
first, and the residue (if any) of the fund shall be applied so far as it will
extend in payment of the demonstrative legacy, and the rest of the
demonstrative legacy shall be paid out of the general assets of the testator.
Illustration:
A bequeaths to B 1,000 rupees, part of the debt of 2,000 rupees due to him from X. He also
bequeaths to C 1,000 rupees to be paid out of the debt due to him from X. A afterwards

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receives 500 rupees, part of that debt, and dies leaving only 1,500 rupees due to him from X.
Of these 1,500 rupees, 1,000 rupees belong to B, and 500 rupees to be paid to C. C is also to
receive 500 rupees out of the general assets of the testator.
5. Section 158 Ademption where Stock, Specifically Bequeathed, does not exist at
Testator's Death - Where stock which has been specifically bequeathed does not
exist at the testator's death, the legacy is adeemed.
Illustration:
A bequeaths to B "my capital stock of 1,000 in East India Stock": "my promissory notes of
the Central Government for 10,000 rupees in their 4 per cent loan." A sells the stock and the
notes. The legacies are adeemed.
6. Section 159 Ademption pro tanto where Stock, Specifically Bequeathed, exists in
Part only at Testator's Death - Where stock which has been specifically bequeathed
exists only in part at the testator's death, the legacy is adeemed so far as regards that
part of the stock which has ceased to exist.
Illustration:
A bequeaths to B his 10,000 rupees in the 5 1/2 per cent loan of the Central Government. A
sold one-half of his 10,000 rupees in the loan in question. One-half of the legacies are
adeemed.
Followings are the cases which do not amount to ademption of legacy;
1. Section 160 Non-ademption of Specific Bequest of Goods Described as
Connected with Certain Place, by Reason of Removal - A specific bequest of
goods under a description connecting them with a certain place is not adeemed by
reason that they have been removed from such place from any temporary cause, or by
fraud, or without the knowledge or sanction of the testator.
Illustrations:
A bequeaths to B "all my household goods which shall be in or about my dwelling-house in
Calcutta at the time of my death." The goods are removed from the house to save them from
fire. A dies before they are brought back.
A bequeaths to B "all my household goods which shall be in or about my dwelling-house in
Calcutta at the time of my death". During A's absence upon a journey, the whole of the goods
are removed from the house. A died without having sanctioned their removal.
Neither of these legacies is adeemed.
2. Section 161 When Removal of Thing Bequeathed does not Constitute Ademption
The removal of the thing bequeathed from the place in which it is stated in the will to

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 be situated does not constitute an ademption, where the place is only referred to in
order to complete the description of what the testator meant to bequeath.
Illustrations:
A bequeaths to B "all the bills, bonds and other securities for money belonging to me now
lying in my lodgings in Calcutta". At the time of his death these effects had been removed
from his lodgings in Calcutta.
A bequeaths to B all his goods on board a certain ship then lying in the river Hugli. The
goods are removed by A's directions to a warehouse, in which they remain at the time of A's
death. No one of these legacies is revoked by ademption.
3. Section 162 When Thing Bequeathed is a Valuable to be Received by Testator
from Third Person; and Testator himself, or his Representative, Receives it -
Where the thing bequeathed is not the right to receive something of value from a third
person, but the money or other commodity which may be received from third person
by the testator himself or by his representatives (bailment), the receipt of such sum of
money or other commodity by the testator shall not constitute an ademption; but if he
mixes it up with the general mass of his property, the legacy is adeemed.
Illustration:
A bequeaths to B whatever sum may be received from his claim on C. A receives the whole
of his claim on C, and sets it apart from the general mass of his property. The legacy is not
adeemed.
4. Section 163 Change by Operation of Law of Subject of Specific Bequest Between
Date of Will and Testator's Death - Where a thing specifically bequeathed
undergoes a change between the date of the will and the testator's death, and the
change takes place by operation of law, or in the course of execution of the provisions
of any legal instrument under which the thing bequeathed was held, the legacy is not
adeemed by reason of such change.
Illustrations:
A bequeaths to B "all the money which I have in the 5 1/2 per cent loan of the Central
Government". The securities for the 5 ½ per cent loan are converted during A's lifetime into 5
per cent stock.
A bequeaths to B the sum of 2,000 invested in Consoles in the names of trustees for A. The
sum of 2,000 l. is transferred by the trustees into A's own name.
A bequeaths to B the sum of 10,000 rupees in promissory notes of the Central Government
which he has power under his marriage settlement to dispose of by will. Afterwards, in A's

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lifetime, the fund is converted into Consoles by virtue of an authority contained in the
settlement. No one of these legacies has been adeemed.
5. Section164 Change of Subject without Testator's Knowledge - Where a thing
specifically bequeathed undergoes a change between the date of the will and the
testator's death, and the change takes place without the knowledge or sanction of the
testator, the legacy is not adeemed.
Illustration:
A bequeaths to B "all my 3 per cent. Consoles. The Consoles are, without A's knowledge,
sold by his agent, and the proceeds converted into East India Stock. This legacy is not
adeemed.
6. Section 165 Stock Specifically Bequeathed Lent to Third Party on Condition that
it is Replaced - Where stock which has been specifically bequeathed is lent to a third
party on condition that it shall be replaced, and it is replaced accordingly, the legacy
is not adeemed.
7. Section 166 Stock Specifically Bequeathed Sold but Replaced and Belonging to
Testator at his Death - Where stock specifically bequeathed is sold, and an equal
quantity of the same stock is afterwards purchased and belongs to the testator at his
death, the legacy is not adeemed.

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