Indian Succession

Act, 1925
Unit V
 Part VI: Testamentary Succession
▪ Sec. 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.
▪ Sec. 57 – Certain provisions of Part VI is applicable to all wills and
codicils made by any Hindu, Buddhist, Sikh and Jaina.
▪ Sec. 58 – The provisions of this Part shall not apply to testamentary
succession to the property of any Muhammadan.
(Muslims have Wassiyat which is complete, whereas Hindu Succession
Act is incomplete w.r.t. wills)
 Part VI Chapter 2: Wills and Codicils
▪ Sec. 59 – Person capable of making wills - Every person of :
i. sound mind
ii. not being a minor
▪ Explanation 1 - A married woman may dispose by will of any property which she could
alienate by her own act during her life.
▪ Explanation 2 - Persons who are deaf or dumb or blind are not thereby incapacitated for
making a will if they are able to know what they do by it.
▪ Explanation 3 - A person who is ordinarily insane may make a will during interval in which
he is 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.
Mudway v. Croft
- A fool made a will – person was suffering from eccentricity of foolishness – but the will was
held to be valid.
 Part VI Chapter 2: Wills and Codicils
Lalit Narain v. State
- Testator was suffering from TB – his will was held valid as he understood the legal
consequences.
▪ Sec. 60 – Testamentary guardian - father irrespective of his age, by way of will, can
appoint guardian/s for his children during minority.
▪ Sec. 61 - Will or any part of the will that is obtained by fraud, coercion or importunity is
void.
Rhodes v. Rhodes
- If a part of a will is obtained by fraud, only that part is void and the whole will does not
become void.
(meaning of fraud, coercion or importunity is not provided in this Act and the ICA must be
used.)
▪ Sec. 62 - Will may be revoked or altered by the maker of it at any time when he is
competent to dispose of his property by will.
 Kinds of Will
1. Privileged Will – Sec. 65 and 66
2. Unprivileged Will – Sec. 63 and 64
Privileged Will -
▪ Sec. 65 – Privileged Wills - Any soldier being employed in an expedition or engaged in
actual warfare, or an airman so employed or engaged, or any mariner being at sea, may, if
he has completed the age of eighteen years, dispose of his property by a will made in the
manner provided in section 66. Such wills are called privileged wills.
▪ Sec. 66 – Mode of making, and rules for executing, privileged wills - Privileged wills may
be in writing, or may be made by word of mouth.
(a) The will may be written wholly by the testator, with his own hand. In such case it need not
be signed or attested.
(b) It may be written wholly or in part by another person, and signed by the testator. In such
case it need not be attested.
(c) If the instrument is written wholly or in part by another person and is not signed by the
testator, attestation is necessary.
 Kinds of Will
(d) If it appears on the face of the instrument that the execution of it in the manner intended
by the testator was not completed, the instrument shall not, by reason of that circumstance,
be invalid, provided that his non-execution of it can be reasonably ascribed to some cause
other than the abandonment of the testamentary intentions expressed in the instrument.
(e) If the soldier, airman or mariner has written instructions for the preparation of his will,
but has died before it could be prepared and executed, such instructions shall be considered
to constitute his will.
(f) If the soldier, airman or mariner has, in the presence of two witnesses, given verbal
instructions for the preparation of his will, and they have been reduced into writing in his
lifetime, but he has died before the instrument could be prepared and executed, such
instructions shall be considered to constitute his will, although they may not have been
reduced into writing in his presence, nor read over to him.
(g) The soldier, airman or mariner may make a will by word of mouth by declaring his
intentions before two witnesses present at the same time.
(h) A will made by word of mouth shall be null at the expiration of one month after the
testator, being still alive, has ceased to be entitled to make a privileged will.
 Kinds of Will
Ratnammal v. Thilaimal
- Soldier during his lifetime gave one kin’s name in the list of kindred roll
– after his death the family member claimed inheritance based on
kindred roll – Held : kindred roll cannot be considered as a will as it does
not state the intention of the person to distribute this property.
Estate of Anderson’s case (English case)
- Soldier approached an advocate to prepare a will – before the advocate
could execute the will, the solider was shot dead - Held : will is not a
privileged will because it was not during employment.
Flay v. Truman
- Although privileged will may be made by a word of mouth, words spoken
in a casual conversation will not constitute a will.
 Kinds of Will
Unprivileged Will -
▪ Sec. 63 – Execution of Unprivileged wills - 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, (a normal person) shall execute his will according to the following rules:
(a) 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.
(b) 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.
(c) The will shall be attested by two or more witnesses, - each of whom has seen the
testator sign or affix his mark to the will or - has seen some other person sign the will, in
the presence and by the direction of the testator, or - has received from the testator a
personal acknowledgment of his signature or mark, or of the signature of such other
person; and - each of the witnesses shall sign the will in the presence of the testator, - but
it shall not be necessary that more than one witness be present at the same time, and - no
particular form of attestation shall be necessary.
 Kinds of Will
Padmawati Jain v. Ajith Kumar Jain
- It was held that burden of proof regarding the validity of the will lies upon the
shoulder of the objector.
Dasuredd v. Venkatasubbammal
- When the testator asks another to sign, that person should write the name of the
testator and state that the testator is unable to sign himself.
Teresa v. Francis
- Court held that it is not essential as to in what manner the direction is given and
may not be necessary be spoken words of mouth, it may be mere gestures.
Krishmachar v. V Goundan
- Will document was prepared by someone else – the testator took the pen and
handed the pen to another person – court held that the gestures made to another to
sign is a valid direction and the will is valid.
 Kinds of Will
Sati Devi v. M Prasad
- In the will, name of the son and grandson was not mentioned though they were close to
the testator – will was not written by the testator nor was it signed by him – court held that
there was a need to prove the will through circumstantial evidences.
Atma Ram v. Smt. Parsini
- Attesting witness and the testator were not from the same village but at that time of
attestation, they were together – this was challenged – court held that they need not be
from the same place.
V Subba Reddi v. V. Basivi
- In the event of the attesting witnesses having died, it has been held that in such cases,
the endorsement by the Registrar would be sufficient proof for the execution of the will.
Sarat Chandra v. Punchanan
- Where a will is 30 years old, as contemplated by Sec. 90 of IEA, the presumption would be
not only of due execution and attestation, but also of testamentary capacity of the testator.
 Kinds of Will
▪ Sec. 64 – Incorporation of papers by reference - If a testator, in a will
or codicil duly attested, refers to any other document then actually
written as expressing any part of his intentions, such document shall
be deemed to form a part of the will or codicil in which it is referred to.
4 Conditions –
 Document must be testamentary.
 It must be in existence at the date of the will.
 It must be clearly identified with its description in the will.
 Intention to incorporate must be clearly expressed.
 Part VI Chapter VI : Construction of
Wills
▪ Sec. 74 – Wordings of the will – not necessary to use technical terms - be such that the
intentions of the testator can be known.
▪ Sec. 76 – Misnomer or misdescription of object - 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.
▪ Sec. 82 – Meaning of s clause to be collected from entire Will.
▪ Sec. 86 – Interpretation of words repeated in different parts of will - If the same words
occur in different parts of the same will, they shall be taken to have been used
everywhere in the same sense, unless a contrary intention appears.
▪ Sec. 88 – The last of two inconsistent clauses prevails - Where two clauses of gifts in a will
are irreconcilable, so that they cannot possibly stand together, the last shall prevail.
▪ Sec. 89 – A will or bequest not expressive of any definite intention is void for uncertainty.
▪ Sec. 95 – Bequest without words of limitation - Where property is bequeathed to any
person, he is entitled to the whole interest of the testator therein, unless it appears from
the Will that only a restricted interest was intended for him.
 Part VI Chapter VI : Construction of
Wills
▪ Sec. 96 – Bequest in alternative.—Where a property is bequeathed to a person with a bequest in the
alternative to another person or to a class of persons, then, if a contrary intention does not appear
by the Will, the legatee first named shall be entitled to the legacy if he is alive at the time when it
takes effect; but if he is then dead, the person or class of persons named in the second branch of
the alternative shall take the legacy.
▪ Sec. 100 – Words expressing relationship denote only legitimate relatives or where there is no such
legitimate relative, a person who has acquired, at the date of the Will, the reputation of being such
relative.
▪ Sec. 102 – Constitution of residuary legatee - A residuary legatee may be constituted by any words
that show an intention on the part of the testator that the person designated shall take the surplus
or residue of his property.
▪ Sec. 103 – Property to which residuary legatee entitled - Under a residuary bequest, the legatee is
entitled to all property belonging to the testator at the time of his death, of which he has not made
any other testamentary disposition which is capable of taking effect.
▪ Sec. 105 – In what case legacy lapses - 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 - In order to
entitle the representatives of the legatee to receive the legacy, it must be proved that he survived
the testator.
 Part VI Chapter VI : Construction of
Wills
▪ Sec. 106 – Legacy does not lapse if one of two joint legatees die before testator.—If a legacy
is given to two persons jointly, and one of them dies before the testator, the other legatee
takes the whole.
▪ Sec. 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.
▪ Sec. 110 – Bequest to A for benefit of B does not lapse by A’s death.
Matha v. Kamaran
- Defines residuary legatee : it is a person named by the testator to take the surplus or residue
of the property not specifically disposed off by the testator.
Jagdish Chandra v. Rajpada
- Explains relationship : it does not appear from this part that illegitimate child or descendant
was intended to be included within its ambit.
 Kinds of Legacy
1. General
2. Specific
3. Demonstrative
Legacy is property which is transferred through a will. This transaction is called legacy and
the document is called will.
General Legacy -
▪ It is a legacy not of a particular thing but something which is to be provided out of general
estate.
▪ Without specifying the share in the property.
▪ Sec. 148 – Where property is bequeathed to two or more persons in succession, is not
specifically bequeathed, (i.e, share not mentioned) it shall, in the absence of any direction
to the contrary, be sold, and the proceeds of the sale shall be invested in such securities
as the High Court may by any general rule authorize or direct, and the fund thus
constituted shall be enjoyed by the successive legatees according to the terms of the will.
 Kinds of Legacy
Specific Legacy -
▪ Sec. 142 – Specific Legacy - Where a testator bequeaths to any person a specified
part of his property.
Legacies which are not specific -
1) Sec. 143 and 144 – Bequest of certain sum where stocks, etc., in which invested, are
described. and - the legacy is not specific merely because the testator was, at the
date of his will, possessed of stock of the specified kind, to an equal or greater
amount than the amount bequeathed. (It is unspecific because investment in stock,
share, etc. is uncertain.)
2) Sec. 145 – Bequest of money, which is not payable until part of testator's property
disposed of in certain way. (money is uncertain due to fluctuating value of property.)
3) Sec. 146 – Where a will contains a bequest of the residue of the testator's property
along with an enumeration of some items of property not previously bequeathed, the
articles numerated shall not be deemed to be specifically bequeathed. (residuary
property is uncertain.)
 Kinds of Legacy
Rules relating to specific legacy - it cannot take effect, by reason of the subject-
matter having been withdrawn from the
1) Sec. 147 – Where property is specifically operation of the will.
bequeathed to two or more persons in
succession, it shall be retained in the form in 5) Sec. 154 – Where the thing specifically
which the testator left it. bequeathed is the right to receive something
of value from a third party, and the testator
2) Sec. 149 – If there is a deficiency of assets to himself receives it, the bequest is adeemed.
pay legacies, a specific legacy is not liable to
abate with the general legacies. 6) Sec. 157 – Where a portion of a fund is
specifically bequeathed to one legatee, and a
3) Sec. 330 – If the assets are not sufficient to legacy charged on the same fund is
answer the debts and the specific legacies, an bequeathed to another legatee, then, if the
abatement shall be made from the latter testator receives a portion of that fund, and
rateably in proportion to their respective the remainder of the fund is insufficient to pay
amounts. both the specific and the demonstrative
4) Sec. 152 – If anything which has been legacy, the specific legacy shall be paid first,
specifically bequeathed does not belong to and the residue (if any) of the fund shall be
the testator at the time of his death, or has applied so far as it will extend in payment of
been converted into property of a different the demonstrative legacy, and the rest of the
kind, the legacy is adeemed (revoked); that is, demonstrative legacy shall be paid out of the
general assets of the testator.
 Kinds of Legacy

Specific Legacy General Legacy

Not liable to pay if there is a deficiency of Abate proportionately.
property to general legacy.
Property bequeathed to 2 or more Property bequeathed to 2 or more
persons should be retained as it is. persons should be converted - Sec. 148.
Specific legacy carries interest/income Where no time has been fixed for the
from testator’s death – Sec. 349. payment of a general legacy, interest
begins to run from expiration of 1 year
from the testator's death – Sec. 351.
Takes the legacy subject to Need not take the legacy with
encumbrances. – Sec. 157. encumbrance – they can clear the
debts, sell, invest and enjoy the
income
 Kinds of Legacy
Demonstrative Legacy -
▪ Sec. 150 – Demonstrative Legacy - 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.
▪ Sec. 151 – Order of payment when legacy directed to be paid out of fund the subject of
specific legacy - Where a portion of a fund is specifically bequeathed and a legacy is
directed to be paid out of the same fund, the portion specifically bequeathed shall first be
paid to the legatee, and the demonstrative legacy shall be paid out of the residue of the
fund and, so far as the residue shall be deficient, out of the general assets of the testator.
Specific Legacy Demonstrative Legacy
Where specific property is given to the Where the legacy is directed to be paid out of
▪legatee.
. a specific property.
Legatee is entitled to have only the specific If the property is lost or insufficient, legatee is
legacy. If the property is lost, legatee does not entitled to receive out of the general asset.
▪get
. anything.
▪Not
. liable to abate for the payments of Liable to abate their share if the property is
 Void Will/Void Bequest
▪ When the entire will is void, it is called as a void will. Eg – will is made for an illegal
purpose.
▪ When any one clause in a will is void then it is called void bequest.
Instances for void bequest and void will -
1) Sec. 67 – Bequest to attesting witness - A will shall not be deemed to be insufficiently
attested by reason of any benefit thereby given either by way of bequest or by way of
appointment to any person attesting it, or to his or her wife or husband - but the
bequest or appointment shall be void so far as concerns the person so attesting, or the
wife or husband of such person, or any person claiming under either of them.
Explanation - A legatee under a will does not lose his legacy by attesting a codicil which
confirms the will.
Moore v. Turner
- A makes a will which is signed by 2 attesting witnesses B and C – Will has a clause that B’s
wife D, will get a property – Court held that it is a void bequest as property cannot be
bequeathed to attesting witness and his/her family members.
 Void Will/Void Bequest
2) Sec. 89 – Uncertain bequest - A will or bequest not expressive of any definite
intention is void for uncertainty.
3) Sec. 112 – Bequest to non existing person at the time of testator’s death – it
includes unborn children (not in the womb).
Exception – non-exiting person’s possession is deferred until a time later than the
death of the testator, by reason of a prior bequest or otherwise; and if a person
answering the description is alive at the death of the testator, or comes into
existence between that event and such later time, the property shall, at such later
time, go to that person.
4) Sec. 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.
 Void Will/Void Bequest
5) Sec. 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 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.
6) Sec. 115 – Bequest to a class some of whom may come under rules in sections 113 and 114 -
such bequest shall be void in regard to those persons only, and not in regard to the whole
class.
7) Sec. 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.
8) Sec. 117 – Effect of direction for accumulation - 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 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.
 Void Will/Void Bequest
This section shall not effect any direction for accumulation for the purpose of—
(i) the payment of the debts of the testator or any other person taking any interest
under the will, or
(ii) the provision of portions for children or remoter issue of the testator or of any other
person taking any interest under the will, or
(iii) the preservation or maintenance of any property bequeathed.
9) Sec. 118 – Bequest to religious or charitable uses - No man having a nephew or niece or
any nearer relative shall have power to bequeath any property to religious or charitable
uses, except by a will executed not less than twelve months before his death, and
deposited within six months from its execution in some place provided by law for the safe
custody of the wills of living persons.
Exception - that nothing in this section shall apply to a Parsi.
10) Sec. 126 – A bequest upon an impossible condition is void.
11) Sec. 127 – Bequest upon illegal or immoral condition - A bequest upon a condition, the
fulfilment of which would be contrary to law or to morality is void.
 Part VII : Sec. 192 to 210 : Protection
of Property of the deceased
▪ Sec. 192 – Person claiming right by succession to property of deceased may apply for relief
against wrongful possession - Any agent, relative or near friends who is entitled by succession to
such property - make application to the District Judge of the district where property is situated.
▪ Sec. 193 – Inquiry made by Judge - The District Judge to whom such application is made shall, in
the first place, examine the applicant on oath, and may make such further inquiry, if he thinks
necessary.
▪ Sec. 194 – Procedure - If the District Judge is satisfied that there is sufficient ground for believing
as aforesaid, he shall summon the party complained of, and give notice of vacant or disturbed
possession, and, after the expiration of a reasonable time, shall determine summarily the right to
possession and shall deliver possession.
▪ Sec. 195 – Appointment of curator pending determination of proceeding - If it further appears
upon such inquiry that danger is to be apprehended of the misappropriation or waste of the
property before the summary proceeding can be determined, the District Judge may appoint one
or more curators - in the case of land, the Judge may delegate to the Collector, or to any officer
subordinate to the Collector, the powers of a curator - every appointment of a curator in respect
of any property shall be duly published.
(The term curator is derived from the Latin word “curare” which means ‘to take care’. Curator is a
person who will take care of a disputed property or will manage it.)
 Part VII : Sec. 192 to 210 : Protection
of Property of the deceased
▪ Sec. 196 – Powers conferrable on curator - The District Judge may authorize the curator to take
possession of the property – it is the discretion of the Judge.
▪ Sec. 197 – Prohibition of exercise of certain powers by curators – cannot exercise powers of a
holder of Succession Certificate or grant of Probate or grant of letters of administration - All persons
who have paid debts or rents to a curator authorized by a Court to receive them shall be
indemnified, and the curator shall be responsible for the payment thereof to the person who has
obtained the certificate, probate or letters of administration.
▪ Sec. 198 – Curator to give security and may receive remuneration - The District Judge shall take
from the curator security for the faithful discharge of his trust - and for rendering, satisfactory
accounts of the same, authorize him to receive out of the property such remuneration, not
exceeding 5% on the moveable property and on the annual profits of the immoveable property, as
the District Judge thinks reasonable.
▪ Sec. 199 – Report from Collector where estate includes revenue paying land - Where the estate of
the deceased person consists wholly or in part of land paying revenue to Government, the District
Judge shall demand a report from the Collector – except in cases of urgency the Judge may proceed,
in the first instance, without such report - The Judge shall not be obliged to act in conformity with
any such report - in case of his acting otherwise than according to such report, he shall immediately
forward a statement of his reasons to the High Court - the High Court, if it is dissatisfied with such
reasons, shall direct the Judge to proceed conformably to the report of the Collector
 Part VII : Sec. 192 to 210 : Protection
of Property of the deceased
▪ Sec. 200 – Institution and defense of suits – all suits may be instituted or defended in the
name of the curator on behalf of the estate.
▪ Sec. 201 – Allowances to apparent owners pending custody by curator – Pending the
custody of the property by the curator, the District Judge may make such allowances to
parties having a prima facie right thereto as upon a summary investigation - and may, at his
discretion, take security for the repayment thereof with interest, in the event the party being
found, upon the adjudication of the summary proceeding, not to be entitled.
▪ Sec. 202 – Accounts to be filed by curator - The curator shall file monthly accounts in
abstract - on the expiry of each period of three months, file a detailed account of his
administration to the satisfaction of the District Judge.
▪ Sec. 203 – Inspection of accounts and right of interested party to keep duplicate - The
accounts of the curator shall be open to the inspection of all parties interested, who can
appoint a separate person to keep a duplicate account of all receipts and payments by the
curator - If it is found that the accounts of the curator are in arrear, or that they are
erroneous or incomplete, or if the curator does not produce them whenever he is ordered to
do so by the District Judge, he shall be punishable with fine not exceeding Rs.1000/- for every
such default.
 Part VII : Sec. 192 to 210 : Protection
of Property of the deceased
▪ Sec. 204 – Bar to appointment of second curator for same property - If the Judge of any district has
appointed a curator; in respect to the whole of the property such appointment shall preclude the
Judge of any other district within the same State from appointing any other curator, but the
appointment of a curator in respect of a portion of the property of the deceased shall not preclude
the appointment within the same State of another curator in respect of the residue or any portion -
no Judge shall appoint curator or entertain a summary proceeding in respect of property which is the
subject of a summary proceeding previously instituted before another Judge - if two or more curators
are appointed by different Judges for several parts of an estate, the High Court may make such order
as it thinks fit for the appointment of one curator of the whole property.
▪ Sec. 205 – Limitation of time for application for curator – an application to the District Judge must
be made within 6 months f the death of the proprietor whose property is claimed by right in
succession.
▪ Sec. 207 – Court of Wards to be made curator in case of minors having property subject to its
jurisdiction.
▪ Sec. 209 – Effect of decision of summary proceeding - The decision of a District Judge in a summary
proceeding under this Part shall have no other effect than that of settling the actual possession; but
for this purpose it shall be final, and shall not be subject to any appeal or review.
▪ Sec. 210 – Appointment of public curators - The State Government may appoint public curators for
any district or number of districts; and the District Judge having jurisdiction shall nominate such