This Act may be called the Indian Succession Act, 1925.

In this Act, unless there is anything repugnant in the subject or context,--

(a) administrator means a person appointed by competent authority to administer the estate of adeceased person when there is no executor;

(b) codicil means an instrument made in relation to a Will, and explaining, altering or adding toits dispositions, and shall be deemed to form part of the Will;

1[(bb) "District Judge" means the Judge of a Principal Civil Court of original jurisdiction;]

(c) "executor" means a person to whom the execution of the last Will of a deceased person is, bythe testator's appointment, confided;

2[(cc) India means the territory of India excluding the State of Jammu and Kashmir;]

(d) Indian Christian means a native of India who is, or in good faith claims to be, of unmixedAsiatic descent and who professes any form of the Christian religion;

(e) minor means any person subject to the Indian Majority Act, 1875 (9 of 1875) who has notattained his majority within the meaning of that Act, and any other person who has not completed theage of eighteen years; and minority means the status of any such person;

(f) probate means the copy of a will certified under the seal of a court of competent jurisdictionwith a grant of administration to the estate of the testator;

3[(g) State includes any division of India having a court of the last resort; ]and

(h) will means the legal declaration of the intention of a testator with respect to his propertywhich he desires to be carried into effect after his death.

1. Ins. by Act 18 of 1929, s. 2 (w.e.f. 1-10-1929).

2. Ins. by Act 3 of 1951, s. 3 and the Schedule (w.e.f. 1-4-1951).

3. Subs. by s. 3 and the Schedule, ibid., for clause (g) (w.e.f. 1-4-1951).

(1) The State Government may, by notification in the Official Gazette, either retrospectively fromthe sixteenth day of March, 1865, or prospectively, exempt from the operation of any of the followingprovisions of this Act, namely, sections 5 to 49 , 58 to 191 , 212, 213 and 215 to 369, the members of anyrace, sect or tribe in the State, or of any part of such race, sect or tribe, to whom the State Governmentconsiders it impossible or inexpedient to apply such provisions or any of them mentioned in the order.

(2) The State Government may, by a like notification, revoke any such order, but not so that therevocation shall have retrospective effect.

(3) Persons exempted under this section or exempted from the operation of any of the provisions ofthe Indian Succession Act, 18651(10 of 1865), under section 332 of that Act are in this Act referred to as"exempted persons".

1. Rep. by this Act.

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

(1) Succession to the immoveable property in 1[India], of a person deceased shall beregulated by the law of 1[India], wherever such person may have had his domicile at the time of his death.

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

Illustrations

(i) A, having his domicile in 1[India], dies in France, leaving moveable property in France, moveable propertyin England, and property, both moveable and immoveable, in 1[India]. The succession to the whole is regulated bythe law of 1[India].

(ii) A, an Englishman, having his domicile in France, dies in 1[India], and leaves property, both moveable andimmoveable, in 1[India]. The succession to the moveable property is regulated by the rules which govern, in France,the succession to the moveable property of an Englishman dying domiciled in France, and the succession to theimmoveable property is regulated by the law of 1[India].

1. Subs. by Act 3 of 1951, s. 3 and the Schedule for "the States".

A person can have only one domicile forthe purpose of the succession to his moveable property.

The domicile of origin of every person oflegitimate birth is in the country in which at the time of his birth his father was domiciled; or, if he is aposthumous child, in the country in which his father was domiciled at the time of the fathers death.

Illustration

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

The domicile of origin of an illegitimate child is in thecountry in which, at the time of his birth, his mother was domiciled.

The domicile of origin prevails until a new domicile hasbeen acquired.

A man acquires a new domicile by taking up his fixed habitationin a country which is not that of his domicile of origin.

Explanation.--A man is not to be deemed to have taken up his fixed habitation in 1[India] merely byreason of his residing therein 2[the civil, military, naval or air force service of Government], or in theexercise of any profession or calling.

Illustrations

(i) A, whose domicile of origin is in England, proceeds to 1[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 1[India].

(ii) A, whose domicile is in England, goes to Austria, and enters the Austrian service, intending to remain inthat service. A has acquired a domicile in Austria.

(iii) A, whose domicile of origin is in France, comes to reside in 1[India] under an engagement with the CentralGovernment for a certain number of years. It is his intention to return to France at the end of that period. He doesnot acquire a domicile in 1[India].

(iv) A, whose domicile is in England, goes to reside in 1[India] for the purpose of winding up the affairs of apartnership which has been dissolved, and with the intention of returning to England as soon as that purpose isaccomplished. He does not by such residence acquire a domicile in 1[India], however, long the residence may last.

(v) A, having gone to reside in 1[India] in the circumstances mentioned in the last preceding illustration,afterwards alters his intention, and takes up his fixed habitation in 1[India]. A has acquired a domicile in 1[India].

(vi) A, whose domicile is in the French Settlement of Chandernagore, is compelled by political events to takerefuge in Calcutta, and resides in Calcutta for many years in the hope of such political changes as may enable him toreturn with safety to Chandernagore. He does not by such residence acquire a domicile in 1[India].

(vii) A, having come to Calcutta in the circumstances stated in the last preceding illustration, continues to residethereafter such political changes have occurred as would enable him to return with safety to Chandernagore, and heintends that his residence in Calcutta shall be permanent. A, has acquired a domicile in 1[India].

1. Subs. by Act 3 of 1951, s. 3 and the Schedule for "the States".

2. Subs. by the A.O. 1950, for "His Majesty's civil, military, naval or air force service".

Any person may acquire a domicile in 1[India] bymaking and depositing in some office in 1[India] appointed in this behalf by the State Government, adeclaration in writing under his hand of his desire to acquire such domicile; provided that he has beenresident in 1[India] for one year immediately preceding the time of his making such declaration.

1. Subs. by Act 3 of 1951, s. 3 and the Schedule for "the States".

A person who is appointed by the Government of one country to be its ambassador, consulor other representative in another country does not acquire a domicile in the latter country by reason onlyof residing there in pursuance of his appointment; nor does any other person acquire such domicile byreason only of residing with such first-mentioned person as part of his family, or as a servant.

A new domicile continues until the former domicile has beenresumed or another has been acquired.

The domicile of a minor follows the domicile of the parent from whom hederived his domicile of origin.

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

By marriage a woman acquires the domicile ofher husband, if she had not the same domicile before.

A wifeu2019s domicile during her marriage follows the domicileof her husband.

Exception.u2014The wifeu2019s domcile no longer follows that of her husband if they are separated by thesentence of a competent Court, or if the husband is undergoing a sentence of transportation.

Save as hereinbefore otherwise provided in this Part, aperson cannot, during minority, acquire a new domicile.

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

If aperson dies leaving moveable property in 1[India], in the absence of proof of any domicile elsewhere,succession to the property is regulated by the law of 1[India].

1. Subs. by Act 3 of 1951, s. 3 and the Schedule for "the States".

(1) No person shall, by marriage,acquire any interest in the property of the person whom he or she marries or become incapable of doingany act in respect of his or her own property which he or she could have done if unmarried.

(2) This section--

shall not apply to any marriage contracted before, the first day of January, 1866;

shall not apply, and shall be deemed never to have applied, to any marriage, one or both of the partiesto which professed at the time of the marriage the Hindu, Muhammadan, Buddhist, Sikh or Jaina religion.

If a personwhose domicile is not in ¹[India] marries in ¹[India] a person whose domicile is in ¹[India], neither partyacquires by the marriage any rights in respect of any property of the other party not comprised in asettlement made previous to the marriage, which he or she would not acquire thereby if both weredomiciled in ¹[India] at the time of the marriage.

1 Subs. by Act 3 of 1951, s. 3 and the Schedule for "the States".

(1) The property of a minormay be settled in contemplation of marriage, provided the settlement is made by the minor with theapprobation of the minors father, or, if the father is dead or absent from 1[India], with the approbation ofthe High Court.

(2) Nothing in this section or in section 21 shall apply to any will made or intestacy occurring beforethe first day of January, 1866, or to intestate or testamentary succession to the property of any Hindu,Muhammadan, Buddhist, Sikh or Jaina.

1. Subs. by Act 3 of 1951, s. 3 and the Schedule for "the States".

Nothing in this Part shall apply to any will made or intestacy occurringbefore the first day of January, 1866, or to intestate or testamentary succession to the property of anyHindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi.

Kindred or consanguinity is the connection or relation of personsdescended from the same stock or common ancestor.

(1) Lineal consanguinity is that which subsists between two persons, oneof whom is descended in a direct line from the other, as between a man and his father, grandfather andgreat-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 grandfatherand grandson in the second degree; his great-grandfather and great-grandson in the third degree, and soon.

(1) Collateral consanguinity is that which subsists between twopersons who are decended from the same stock or ancestor, but neither of whom is descended in a directline from the other.

(2) For the purpose of ascertaining in what degree of kindred any collateral relative stands to a persondeceased, it is necessary to reckon upwards from the person deceased to the common stock and thendownwards to the collateral relative, a degree being allowed for each person, both ascending anddescending.

For the purposeof succession, there is no distinctionu2014

(a) between those who are related to a person deceased through his father, and those who arerelated to him through his mother; or

(b) between those who are related to a person deceased by the full blood, and those who arerelated to him by the half blood; or

(c) between those who were actually born in the lifetime of a person deceased and those who atthe date of his death were only conceived in the womb, but who have been subsequently born alive.

Degrees of kindred are computed in the manner setforth in the table of kindred set out in Schedule I.

Illustrations

(i) The person whose relatives are to be reckoned, and his cousin-german, or first cousin, are, as shown in thetable, related in the fourth degree; there being one degree of ascent to the father, and another to the commonancestor, the grandfather; and from him one of descent to the uncle, and another to the cousin-german, making in allfour degrees.

(ii) A grandson of the brother and a son of the uncle, i.e., a great-nephew and a cousin-german, are in equaldegree, being each four degrees removed.

(iii) A grandson of a cousin-german is in the same degree as the grandson of a great-uncle, for they are both inthe sixth degree of kindred.

(1) This Part shall not apply to any intestacy occurring before the first dayof January, 1866, or to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina.

(2) Save as provided in sub-section (1) or by any other law for the time being in force, the provisionsof this Part shall constitute the law of 1[India] in all cases of intestacy.

1. Subs. by Act 3 of 1951, s. 3 and the Schedule for "the States".

A person is deemed to dieintestate in respect of all property of which he has not made a testamentary disposition which is capableof taking effect,

Illustrations

(i) A has left no will. He has died intestate in respect of the whole of his property.

(ii) A has left a will, whereby he has appointed B his executor; but the will contains no other provision. A hasdied intestate in respect of the distribution of his property.

(iii) A has bequeathed his whole property for an illegal purpose. A has died intestate in respect of thedistribution of his property.

(iv) A has bequeathed 1,000 rupees to B and 1,000 rupees to the eldest son of C, and has made no other bequest;and has died leaving the sum of 2,000 rupees and no other property. C died before A without having ever had a son.A has died intestate in respect of the distribution of 1,000 rupees.

Nothing in this Chapter shall apply to Parsis.

The property of an intestate devolves upon the wife or husband,or upon those who are of the kindred of the deceased, in the order and according to the rules hereinaftercontained in this Chapter.

1

1. The Explanation omitted by Act 26 of 2002, s. 2 (w.e.f. 27-5-2002).

Where the intestate has left a widow--

(a) if he has also left any lineal descendants, one-third of his property shall belong to his widow,and the remaining two-thirds shall go to his lineal descendants, according to the rules hereinaftercontained;

(b) 1[save as provided by section 33A], if he has left no lineal descendant, but has left personswho are of kindred to him, one-half of his property shall belong to his widow, and the other half shallgo to those who are kindred to him, in the order and according to the rules hereinafter contained;

(c) if he has left none who are of kindred to him, the whole of his property shall belong to hiswidow.

1. Ins. by Act 40 of 1926, s. 2.

1[33A. Special provision where intestate has left widow and no lineal descendants.--(1) Wherethe intestate has left a widow but no lineal descendants and the nett value of his property does not exceedfive thousand rupees, the whole of his property shall belong to the widow.

(2) Where the nett value of the property exceeds the sum of five thousand rupees, the widow shall beentitled to five thousand rupees thereof and shall have a charge upon the whole of such property for suchsum of five thousand rupees, with interest thereon from the date of the death of the intestate at 4 per cent.per annum until payment.

(3) The provision for the widow made by this section shall be in. addition and without prejudice toher interest and share in the residue of the estate of such intestate remaining after payment of the saidsum of five thousand rupees with interest as aforesaid, and such residue shall be distributed inaccordance with the provisions of section 33 as if it were the whole of such intestates property.

(4) The nett value of the property shall be ascertained by deducting from the gross value thereof alldebts, and all funeral and administration expenses of the intestate, and all other lawful liabilities andcharges to which the property shall be subject.

(5) This section shall not apply--

(a) to the property of--

(i) any Indian Christian,

(ii) any child or grandchild of any male person who is or was at the time of his death anIndian Christian, or

(iii) any person professing the Hindu, Buddhist, Sikh or Jaina religion the succession towhose property is, under section 24 of the Special Marriage Act, 1872 (3 of 1872), regulated bythe provisions of this Act;

(b) unless the deceased dies intestate in respect of all his property.]

1. Ins. by s. 3, ibid.

Where the intestatehas left no widow, his property shall go to his lineal descendants or to those who are of kindred to him,not being lineal descendants, according to the rules hereinafter contained; and, if he has left none who areof kindred to him, it shall go to the Government.

A husband surviving his wife has the same rights in respect of her property,if she dies intestate, as a widow has in respect of her husbandu2019s property, if he dies intestate.

The rules for the distribution of the intestate's property (after deductingthe widow's share, if he has left a widow) amongst his lineal descendants shall be those contained insections 37 to 40.

Where the intestate has left surviving him achild or children, but no more remote lineal descendant through a deceased child, the property shallbelong to his surviving child, if there is only one, or shall be equally divided among all his survivingchildren.

Where the intestate hasnot left surviving him any child but has left a grandchild or grandchildren and no more remote descendantthrough a deceased grandchild, the property shall belong to his surviving grandchild if there is one, orshall be equally divided among all his surviving grandchildren.

Illustrations

(i) A has three children, and no more, John, Mary and Henry. They all die before the father, John leaving twochildren, Mary three and Henry four. Afterwards A dies intestate, leaving those nine grandchildren and nodescendant of any decreased grandchild. Each of his grandfather will have one-ninth.

(ii) But if Henry has died, leaving no child, then the whole is equally divided between the intestate's fivegrandchildren, the children of John and Mary.

In likemanner 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.

(1) If the intestate has left linealdescendants who do not all stand in the same degree of kindred to him, and the persons through whom themore remote are descended from him are dead, the property shall be divided into such a number of equalshares as may correspond with the number of the lineal descendants of the intestate who either stood inthe nearest degree of kindred to him at his decease, or, having been of the like degree of kindred to him,died before him, leaving lineal descendants who survived him.

(2) One of such shares shall be allotted to each of the lineal descendants who stood in the nearestdegree of kindred to the intestate at his decease; and one of such shares shall be allotted in respect of eachof such deceased lineal descendants; and the share allotted in respect of each of such deceased linealdescendants shall belong to his surviving child or children or more remote lineal descendants, as the casemay be; such surviving child or children or more remote lineal descendants always taking the share whichhis or their parent or parents would have been entitled to respectively if such parent or parents hadsurvived the intestate.

Illustrations

(i) 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 to John'sfour children, and the remaining third to Mary's one child.

(ii) A left no child, but left eight grandchildren, and two children of a deceased grandchild. The property isdivided into nine parts, one of which is allotted to each grandchild, and the remaining one-ninth is equally dividedbetween the two great-grandchildren.

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

(iv) A has two children, and no more, John and Mary. 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 equallydivided between Mary and the posthumous child.

Where an intestate hasleft no linal descendants, the rules for the distribution of his property (after deducting the widowu2019s share,if he has left a widow) shall be those contained in sections 42 to 48.

If the intestateu2019s father is living, he shall succeed to theproperty.

If the intestate'sfather is dead, but the intestate's mother is living and there are also brothers or sisters of the intestateliving, and there is no child living of any deceased brother or sister, the mother and each living brother orsister shall succeed to the property in equal shares.

Illustration

A dies intestate, survived by his mother and two brothers of the full blood, John and Henry, and a sister Mary,who is the daughter of his mother but not of his father. The mother takes one-fourth, each brother takes one-fourthand Mary, the sister of half blood, takes one-fourth.

If the intestate's father is dead but the intestate's mother is living,and if any brother or sister and the child or children of any brother or sister who may have died in theintestate's lifetime are also living, then the mother and each living brother or sister, and the living child orchildren of each deceased brother or sister, shall be entitled to the property in equal shares, such children(if more than one) taking in equal shares only the shares which their respective parents would have takenif living at the intestate's death.

Illustration

A, the intestate, leaves his mother, his brothers John and Henry, and also one child of a deceased sister, Mary,and two children of George, a deceased brother of the half blood who was the son of his father but not of his mother.The mother takes one-fifth, John and Henry each takes one-fifth, the child of Mary takes one-fifth, and the twochildren of George divide the remaining one-fifth equally between them.

If the intestate's father is dead, but the intestate's mother is living, and the brothers and sistersare all dead, but all or any of them have left children who survived the intestate, the mother and the childor children of each deceased brother or sister shall be entitled to the property in equal shares, suchchildren (if more than one) taking in equal shares only the shares which their respective parents wouldhave taken if living at the intestate's death.

Illustration

A, the intestate, leaves no brother or sister but leaves his mother and one child of a deceased sister, Mary, and twochildren of a deceased brother, George. The mother takes one-third, the child of Mary takes one-third, and thechildren of George divide the remaining one-third equally between them.

If the intestateu2019s father is dead, but the intestateu2019s mother is living, and there is neither brother,nor sister, nor child of any brother or sister of the intestate, the property shall belong to the mother.

Where theintestate has left neither lineal descendant, nor father, nor mother, the property shall be divided equallybetween his brothers and sisters and the child or children of such of them as may have died before him,such children (if more than one) taking in equal shares only the shares which their respective parentswould have taken if living at the intestateu2019s death.

Where the intestate has left neither lineal descendant, nor parent, nor brother, nor sister, his property shallbe divided equally among those of his relatives who are in the nearest degree of kindred to him.

Illustrations

(i) A, the intestate, has left a grandfather, and a grandmother and no other relative standing in the same ora nearer degree of kindred to him. They, being in the second degree, will be entitled to the property in equalshares, exclusive of any uncle or aunt of the intestate, uncles and aunts being only in the third degree.

(ii) A, the intestate, has left a great-grandfather, or a great-grandmother, and uncles and aunts, and no otherrelative standing in the same or a nearer degree of kindred to him. All of these being in the third degree will takeequal shares.

(iii) A, the intestate, left a great-grandfather, an uncle and a nephew, but no relative standing in a nearer degreeof kindred to him. All of these being in the third degree will take equal shares.

(iv) Ten children of one brother or sister of the intestate, and one child of another brogher or sister of theintestate, constitute the class of relatives of the nearest degree of kindred to him. They will each take one-eleventh ofthe property.

Where a distributive share in theproperty of a person who has died intestate is claimed by a child, or any descendant of a child, of suchperson, no money or other property which the intestate may, during his life, have paid, given or settled to,or for the advancement of, the child by whom or by whose descendant the claim is made shall be takeninto account in estimating such distributive share.

1[50. General principles relating to intestate succession.For the purpose of intestate successionamong Parsis--

(a) there is no distinction between those who were actually born in the lifetime of a persondeceased and those who at the date of his death were only conceived in the womb, but who have beensubsequently born alive;

(b) a lineal descendant of an intestate who has died in the lifetime of the intestate without leavinga widow or widower or any lineal descendant or 2[a widow or widower of any lineal descendant] shallnot be taken into account in determining the manner in which the property of which the intestate hasdied intestate shall be divided; and

(c) where a 3[widow or widower of any relative] of an intestate has married again in the lifetimeof the intestate, 4[such widow or widower] shall not be entitled to receive any share of the property ofwhich the intestate has died intestate, and 4[such widow or widower] shall be deemed not to beexisting at the intestate's death.

1. Subs. by Act 17 of 1939, s. 2, for sections 50 to 56 (w.e.f. 12-6-1939).

2. Subs. by Act 51 of 1991, s. 2, for "a widow of any lineal descendant" (w.e.f. 9-12-1991).

3. Subs. s. 2, ibid., for "widow of any relative" (w.e.f. 9-12-1991).

4. Subs. by s. 2, ibid., for "she" (w.e.f. 9-12-1991).

1[51. Division of intestateu2019s property among widow, widower, children and parents.u2014(1) Subjectto the provisions of sub-section (2), the property of which a Parsi dies intestate shall he divided,

(a) where such Parsi dies leaving a widow or widower and children, among the widow orwidower, and children so that the widow or widower and each child received equal shares;

(b) where such Parsi dies leaving children, but no widow or widower, among the children inequal shares.

(2) Where a Parsi dies leaving one or both parents in addition to children or widow or widower andchildren, the property of which such Parsi dies intestate shall be so divided that the parent or each of theparents shall receive a share equal to half the share of each child.]

1. Subs. by s. 3, ibid., for sections 51 and 52 (w.e.f. 9-12-1991).

In all caseswhere a Paris dies leaving any lineal descendant, if any child of such intestate has died in the lifetime ofthe intestate, the division of the share of the property of which the intestate has died intestate which suchchild would have taken if living at the intestate's death shall be in accordance with the following rules,namely:--

(a) If such deceased child was a son, his widow and children shall take shares in accordance withthe provisions of this Chapter as if he had died immediately after the intestate's death:

Provided that where such deceased son has left a widow or a widow of a lineal descendant but nolineal descendant, the residue of his share after such distribution has been made shall be divided inaccordance with the provisions of this Chapter as property of which the intestate has died intestate,and in making the division of such residue the said deceased son of the intestate shall not be takeninto account.

(b) If such deceased child was a daughter, her share shall be divided equally among her children.

(c) If any child of such deceased child has, also died during the lifetime of the intestate, the sharewhich he or she would have taken if living at the intestates death, shall be divided in like manner inaccordance with clause (a) or clause (b), as the case may be.

(d) Where a remoter lineal descendant of the intestate has died during the lifetime of the intestate,the provisions of clause (c) shall apply mutatis mutandis to the division of any share to which he orshe would have been entitled if living at the intestate's death by reason of the predecease of all the intestate'slineal descendants directly between him or her and the intestate.

1[54. Division of property where intestate leaves no lineal descendant but leaves a widow orwidower or a widow or widower of any lineal descendant.u2014Where a Parsi dies without leaving anylineal descendant but leaving a widow or widower or a widow or widower of a lineal descendant, theproperty of which the intestate dies intestate shall be divided in accordance with the following rules,namely:--

(a) if the intestate leaves a widow or widower but no widow or widower of a lineal descendant,the widow or widower shall take half the said property;

(b) if the intestate leaves a widow or widower and also a widow or widower of any linealdescendant, his widow or her widower shall receive one-third of the said property and the widow orwidower of any lineal descendant shall receive another one-third or if there is more than one suchwidow or widower of lineal descendants, the last mentioned one-third shall be divided equally amongthem;

(c) if the intestate leaves no widow or widower, but one widow or widower of the linealdescendant, such widow or widower of the lineal descendant shall receive one-third of the saidproperty or, if the intestate leaves no widow or widower but -more than one widow or widower oflineal descendants, two-thirds of the said property shall be divided among such widows or widowersof the lineal descendants in equal shares;

(d) the residue after the division specified in clause (a), or clause (b) or clause (c) has been madeshall be distributed among the relatives of the intestate in the order specified in Part I of Schedule II;and the next-of-kin standing first in Part I of that Schedule shall be preferred to those standingsecond, the second to the third and so on in succession, provided that the property shall be sodistributed that each male and female standing in the same degree of propinquity shall receive equalshares;

(e) if there are no relatives entitled to the residue under clause (d), the whole of the residue shallbe distributed in proportion to the shares specified among the persons entitled to receive shares underthis section.]

1. Subs. by s. 4, ibid., for section 54 (w.e.f. 9-12-1991).

When a Parsi dies leaving neither linealdescendants nor a widow or widower nor 1[a widow or widower of any lineal descendant] his or her nextof-kin,in the order set forth in Part II of Schedule II, shall be entitled to succeed to the whole of theproperty of which he or she dies intestate. The next-of-kin standing first in Part II of that Schedule shallbe preferred to those standing second, the second to the third, and so on in succession, provided that theproperty shall be so distributed that 2[each male and female standing in the same degree of propinquityshall receive equal shares.]

1. Subs. by Act 51 of 1991, s. 5, for "a widow of any lineal descendant" (w.e.f. 9-12-1991).

2. Subs. by s. 5, ibid., for "each male shall take double the share of each female standing in the same degree of propinquity" (w.e.f. 9-12-1991).

Where there is no relative entitled to succeed under the other provisions of thisChapter to the property of which a Parsi has died intestate, the said property shall be divided equallyamong those of the intestate's relatives who are in the nearest degree of kindred to him.]

1[57. Application of certain provisions of Part to a class of wills made by Hindus, etc.--Theprovisions of this Part which are set out in Schedule III shall, subject to the restrictions and modificationsspecified therein, apply--

(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first dayof September, 1870, within the territories which at the said date were subject to the Lieutenant-Governorof Bengal or within the local limits of the ordinary original civil jurisdiction of the HighCourts of Judicature at Madras and Bombay; and

(b) to all such wills and codicils made outside those territories and limits so far as relates toimmoveable property situate within those territories or limits, 2[and

(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day ofJanuary, 1927, to which those provisions are not applied by clauses (a) and (b):]

Provided that marriage shall not revoke any such will or codicil.]

3

1. Sub-section (1) renumbered as section 57 thereof by Act 18 of 1929, s. 3 (w.e.f. 1-10-1929) which was earlier renumbered assub-section (1) thereof by Act 37 of 1926, s. 2 (w.e.f. 9-9-1926).

2. Added by s. 3, ibid. (w.e.f. 1-10-1929).

3. Sub-section (2) omitted by Act 18 of 1929, s. 3 (w.e.f .1-10-1929) which was earlier inserted by Act 37 of 1926, s. 2 (w.e.f. 9-9-1926).

(1) The provisions of this Part shall not apply to testamentarysuccession to the property of any Muhammadan nor, save as provided by section 57, to testamentarysuccession to the property of any Hindu, Buddhist, Sikh or Jaina; nor shall they apply to any will madebefore 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 provisionsof this Part shall constitute the law of 1[India] applicable to all cases of testatmentary succession.

1. Subs. by Act 3 of 1951, s. 3 and the Schedule for "he States".

Every person of sound mind not being a minor may disposeof his property by will.

Explanation 1.--A married woman may dispose by will of any property which she could alienate byher own act during her life.

Explanation 2.--Persons who are deaf or dumb or blind are not thereby incapacitated for making awill 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 ofsound mind.

Explanation 4.--No person can make a will while he is in such a state of mind, whether arising fromintoxication or from illness or from any other cause, that he does not know what he is doing.

Illustrations

(i) A can perceive what is going on in his immediate neighbourhood, and can answer familiar questions, but hasnot a competent understanding as to the nature of his property, or the persons who are of kindred to him, or in whosefavour it would be proper that he should make his will. A cannot make a valid will.

(ii) A executes an instrument purporting to be his will, but he does not understand the nature of the instrument,nor the effect of its provisions. This instrument is not a valid will.

(iii) A, being very feeble and debilitated, but capable of exercising a judgment as to the proper mode ofdisposing of his property, makes a will. This is a valid will.

A father, whatever his age may be, may by will appoint a guardian orguardians for his child during minority.

A will or any part of a will, the making ofwhich has been caused by fraud or coercion, or by such importunity as takes away the free agency of thetestator, is void.

Illustrations

(i) A, falsely and knowingly represents to the testator, that the testator's only child is dead, or that he has donesome undutiful act and thereby induces the. testator to make a will in his, A's favour; such will has been obtained byfraud, and is

(ii) A, by fraud and deception, prevails upon the testator to bequeath a legacy to him. The bequest is void.

(iii) A, being a prisoner by lawful authority, makes his will. The will is not invalid by reason of theimprisonment.

(iv) A threatens to shoot B, or to burn his house or to cause him to be arrested on a criminal charge, unless hemakes a bequest in favour of C. B, in consequence, makes a bequest in favour of C. The bequest is void, the makingof it having been caused by coercion.

(v) A, being of sufficient intellect, if undistrubed by the influence of others, to make a will yet being so muchunder the control of B that he is not a free agent, makes a will, dictated by B. It appears that he would not haveexecuted the will but for fear of B. The will is invalid.

(vi) A, being in so feeble a state of health as to be unable to resist importunity, is pressed by B to make a will ofa certain purport and does so merely to purchase peace and in submission to B. The will is invalid.

(vii) A being in such a state of health as to be capable of exercising his own judgment and volition, B usesurgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence ofthe intercession and persuasion, but in the free exercise of his judgment and volition makes his will in the mannerrecommended by B. The will is not redered invalid by the intercession and persuasion of B.

(viii) A, with a view to obaining a legacy from B, pays him attention and flatters him and thereby produces inhim a capricious partiality to A. B, in consequence of such attention and flattery, makes his will, by which he leavesa legacy to A. The bequest is not rendered invalid by the attention and flattery of A.

A will is liable to be revoked or altered by the maker of it atany time when he is competent to dispose of his property by will.

Every testator, not being a soldier employed in an expeditionor engaged in actual warfare, 1[or an airman so employed or engaged,] or a mariner at sea, shall executehis 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 otherperson 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 writingas a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testatorsign or affix his mark to the will or has seen some other person sign the will, in the presence andby the direction of the testator, or has received from the testator a personal acknowledgment ofhis signature or mark, or of the signature of such other person; and each of the witnesses shallsign the will in the presence of the testator, but it shall not be necessary that more than onewitness be present at the same time, and no particular form of attestation shall be necessary.

1. Ins. by Act 10 of 1927, s. 2 and the First Schedule (w.e.f. 4-4-1927).

If a testator, in a will or codicil duly attested, refers toany other document then actually written as expressing any part of his intentions, such document shall bedeemed to form a part of the will or codicil in which it is referred to.

Any soldier being employed in an expedition or engaged in actual warfare,1[or an airman so employed or engaged,] or any mariner being at sea, may, if he has completed the age ofeighteen years, dispose of his property by a will made in the manner provided in section 66. Such willsare called privileged wills.

Illustrations

(i) A, a medical officer attached to a regiment is actually employed in an expedition. He is a soldier actuallyemployed 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 aprivileged will.

(iii) A, a soldier serving in the field against insurgents, is a soldier engaged in actual warfare, and as such canmake 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. Heis, 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 hisship, is not considered as at sea, and cannot make a privleged will.

(vi) A, a mariner serving on a military expedition, but not being at sea, is considered as a soldier, and can makea privileged will.

1. Ins. by Act 10 of 1927, s. 2 and the First Schedule (w.e.f. 4-4-1927).

(1) Privileged wills may be inwriting, or may be made by word of mouth.

(2) The execution of privileged wills shall be governed by the following rules:--

(a) The will may be written wholly by the testator, with his own hand. In such case it need not besigned or attested.

(b) It may be written wholly or in part by another person, and signed by the testator. In such caseit need not be attested.

(c) If the instrument purporting to be a will is written wholly or in part by another person and isnot signed by the testator, it shall be deemed to be his will, if it is shown that it was written by thetestator's directions or that he recognised it as his will.

(d) If it appears on the face of the instrument that the execution of it in the manner intended bythe 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 theabandonment of the testamentary intentions expressed in the instrument.

(e) If the soldier,1[airman] or mariner has written instructions for the preparation of his will, buthas died before it could be prepared and executed, such instructions shall be considered to constitutehis will.

(f) If the soldier, 1[airman] or mariner has, in the presence of two witnesses, given verbalinstructions for the preparation of his will, and they have been reduced into writing in his lifetime, buthe has died before the instrument could be prepared and executed, such instructions shall beconsidered to constitute his will, although they may not have been reduced into writing in hispresence, nor read over to him.

(g) The soldier, 1[airman] or mariner may make a will by word of mouth by declaring hisintentions 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.

1. Ins. by Act 10 of 1927, s. 2 and the First Schedule (w.e.f. 4-4-1927).

A will shall not be deemed to be insufficiently attested byreason of any benefit thereby given either by way of bequest or by way of appointment to any personattesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far asconcerns the person so attesting, or the wife or husband of such person, or any person claiming undereither of them.

Explanation.--A legatee under a will does not lose his legacy by attesting a codicil which confirmsthe will.

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 willor to prove the validity or invalidity thereof.

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

Explanation.--Where a man is invested with power to determine the disposition of property of whichhe is not the owner, he is said to have power to appoint such property.

No unprivileged will or codicil, nor any partthereof, shall be trevoked otherwise than by marriage, or by another will or codicil, or by some writingdeclaring an intention to revoke the same and executed in the manner in which an unprivileged will isherein before required to be executed, or by the burning, tearing, or otherwise destroying the same by thetestator or by some person in his presence and by his direction with the intention of revoking the same.

Illustrations

(i) A has made an unprivileged will. Afterwards, A makes another unprivileged will which purports to revokethe first. This is a revocation.

(ii) A has made an unprivileged will. Afterwards, A, being entitled to make a privileged will, makes a privilegedwill, which purports to revoke his unprivileged will. This is a revocation.

No obliteration,interlineation or other alteration made in any unprivileged will after the execution thereof shall have anyeffect, except so far as the words or meaning of the will have been thereby rendered illegible orundiscernible, unless such alteration has been executed in like manner as hereinbefore is required for theexecution of the will:

Provided that the will, as so altered, shall be deemed to be duly executed if the signature of thetestator and the subscription of the witnesses is made in the margin or on some other part of the willopposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to suchalteration, and written at the end or some other part of the will.

A privileged will or codicil, may be revoked by thetestator by an unprivileged will .or codicil, or by any act expressing an intention to revoke it andaccompanied by such formalities as would be sufficient to give validity to a privileged will, or by theburning, tearing or otherwise destroying the same by the testator, or by some person in his presence andby his direction, with the intention of revoking the same.

Explanation.--In order to the revocation of a privileged will or codicil by an act accompanied bysuch formalities as would be sufficient to give validity to a privileged will, it is not necessary that thetestator should at the time of doing that act be in a situation which entitles him to make a privileged will

(1) No unprivileged will or codicil, nor any part thereof, whichhas been revoked in any manner, shall be revived otherwise than by the re-execution thereof, or by acodicil executed in manner herein before required, and showing an intention to revive the same.

(2) When any will or codicil, which has been partly revoked and afterwards wholly revoked, isrevived, such revival shall not extend to so much thereof as has been revoked before the revocation of thewhole thereof, unless an intention to the contrary is shown by the will or codicil.

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

For the purpose ofdetermining questions as to what person or what property is denoted by any words used in a will, a Courtshall inquire into every material fact relating to the persons who claim to be interested under such will,the property which is claimed as the subject of disposition, the circumstances of the testator and of hisfamily, and into every fact a knowledge of which may conduce to the right application of the words whichthe testator has used.

Illustrations

(i) A, by his will, bequeaths 1,000 rupees to his eldest son or to his youngest grandchild, or to his cousin, Mary.A Court may make inquiry in order to ascertain to what person the description in the will applies.

(ii) A, by his will, leaves to B "my estate called Black Acre". It may be necessary to take evidence in order toascertain what is the subject-matter of the bequest; that is to say, what estate of the testator's is called Black Acre.

(iii) A, by his will, leaves to B "the estate which I purchased of C". It may be necessary to take evidence inorder to ascertain what estate the testator purchased of C.

(1) Where the words used in a will to designate ordescribe a legatee or a class of legatees sufficiently show what is meant, and error in the name ordescription 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 thedescription of a legatee may be corrected by the name.

Illustrations

(i) A bequeaths a legacy to Thomas, the second son of my brother John. The testator has an only brothernamed John, who has no son named Thomas, but has a second son whose name is William. William will have thelegacy.

(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 thelegacy.

(iii) The testator bequeaths his property "to A and B, the legitimate children of C". C has no legitimate child,but has two illegitimate children, A and B. The bequest to A and B takes effect, although they are illegitimate.

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

(v) The testator, having six grandchildren, makes a bequest to "my six grandchildren" and, proceeding tomention them by their Christian names, mentions one twice over omitting another altogether. The one whose nameis not mentioned will take a share with the others.

(vi) The testator bequeaths "1,000 rupees to each of the three children of A". At the date of the will A has fourchildren. Each of these four children will, if he survives the testator, receive a legacy of 1,000 rupees.

Where any word material to the full expression of the meaninghas been omitted, it may be supplied by the context.

Illustration

The testator gives a legacy of "five hundred" to his daughter A and a legacy of "five hundred rupees" to hisdaughter B. A will take a legacy of five hundred rupees.

If the thing which the testatorintended to bequeath can be sufficiently identified from the description of it given in the will, but someparts of the description do not apply, such parts of the description shall be rejected as erroneous, and thebequest shall take effect.

Illustrations

(i) A bequeaths to B "my marsh-lands lying in L and in the occupation of X". The testator had marsh-landslying in L but had no marsh-lands in the occupation of X. The words in the occupation of X shall be rejected aserroneous, and the marshlands of the testator lying in L will pass by the bequest.

(ii) The testator bequeaths to A "my zamindari of Rampur". He had an estate at Rampur but it was a taluq andnot a zamindari. The taluq passes by this bequest.

If a will mentions severalcircumstances as descriptive of the thing which the testator intends to bequeath, and there is any propertyof his in respect of which all those circumstances exist, the bequest shall be considered as limited to suchproperty, and it shall not be lawful to reject any part of the description as erroneous, because the testatorhad other property to which such part of the description does not apply.

Explanation.--In judging whether a case falls within the meaning of this section, any words whichwould be liable to rejection under section 78 shall be deemed to have been struck out of the will.

Illustrations

(i) A bequeaths to B "my marsh-lands lying in L and in the occupation of X. The testator had marsh-landslying in L, some of which were in the occupation of X, and some not in the occupation of X. The bequest will beconsidered as limited to such of the testator's marsh-lands in L as were in the occupation of X.

(ii) A bequeaths to B "my marsh-lands lying in L and in the occupation of X, comprising 1,000 bighas oflands". The testator had marshlands lying in L some of which were in the occupation of X and some not in theoccupation of X. The measurement is wholly inapplicable to the marsh-lands of either class, or to the whole takentogether. The measurement will be considered as struck out of the will, and such of the testator's marsh-lands lyingin L as were in the occupation of X shall alone pass by the bequest.

Where the words of a will areunambiguous, but it is found by extrinsic evidence that they admit of applications, one only of which canhave been intended by the testator, extrinsic evidence may be taken to show which of these applicationswas intended.

Illustrations

(i) A man, having two cousins of the name of Mary, bequeaths a sum of money to "my cousin Mary". It appearsthat there are two persons, each answering the description in the will. That description, therefore, admits of twoapplications, only one of which can have been intended by the testator. Evidence is admissible to show which of thetwo applications was intended.

(ii) A, by his will, leaves to B "my estate called Sultanpur Khurd". It turns out that he had two estates calledSultanpur Khurd. Evidence is admissible to show which estate was intended.

Where there is anambiguity or deficiency on the face of a will, no extrinsic evidence as to the intentions of the testator shallbe admitted.

Illustrations

(i) A man has an aunt, Caroline, and a cousin, Mary, and has no aunt of the name of Mary. By his Will hebequeaths 1,000 rupees to "my aunt, Caroline" and 1,000 rupees to "my cousin, Mary" and afterwards bequeaths2,000 rupees to "my before-mentioned aunt, Mary". There is no person to whom the description given in the Willcan apply, and evidence is not admissible to show who was meant by "my before-mentioned aunt, Mary". Thebequest is, therefore, void for uncertainty under section 89.

(ii) A bequeaths 1,000 rupees to............leaving a blank for the name of the legatee. Evidence is not admissibleto show what name the testator intended to insert.

(iii) A bequeaths to B .......................rupees, or "my estate of........................" Evidence is not admissible to showwhat sum or what estate the testator intended to insert.

The meaning of any clause in a Will is tobe collected from the entire instrument, and all its parts are to be construed with reference to each other.

Illustrations

(i) The testator gives to B a specific fund or property at the death of A, and by a subsequent clause gives thewhole of his property to A. The effect of the several clauses taken together is to vest the specific fund or property inA for life, and after his decease in B; it appearing from the bequest to B that the testator meant to use in a restrictedsense the words in which he describes what he gives to A.

(ii) Where a testator having an estate, one part of which is called Black Acre, bequeaths the whole of his estateto A, and in another part of his Will bequeaths Black Acre to B, the latter bequest is to be read as an exception out ofthe first as if he had said "I give Black Acre to B, and all the rest of my estate to A".

General words may be understood in a restricted sense where it may be collected from the Will that thetestator meant to use them in a restricted sense; and words may be understood in a wider sense than thatwhich they usually bear, where it may be collected from the other words of the Will that the testatormeant to use them in such wider sense.

Illustrations

(i) A testator gives to A "my farm in the occupation of B", and to C "all my marsh-lands in L". Part of the farmin the occupation of B consists of marsh-lands in L, and the testator also has other marsh-lands in L, The generalwords, "all my marsh-lands in L", are restricted by the gift to A. A takes the whole of the farm in the occupation ofB, including that portion of the farm which consists of marshlands in L.

(ii) The testator (a sailor on ship-board) bequeathed to his mother his gold ring, buttons and chest of clothes,and to his friend, A (a shipmate) his red box, clasp-knife and all things not before bequeathed. The testator's share ina house does not pass to A under this bequest.

(iii) A, by his Will, bequeathed to B all his household furniture plate, linen, china, books, pictures and all othergoods of whatever kind; and afterwards bequeathed to B a specified part of his property. Under the first bequest is Bentitled only to such articles of the testators as are of the same nature with the articles therein enumerated.

Where a clause is susceptible oftwo meanings according to one of which it has some effect, and according to the other of which it canhave none, the former shall be preferred.

No part of a Will shall be rejected asdestitute of meaning if it is possible to put a reasonable construction upon it.

If the same words occur indifferent parts of the same will, they shall be taken to have been used everywhere in the same sense,unless a contrary intention appears.

The intention of the testatorshall not be set aside because it cannot take effect to the full extent, but effect is to be given to it asfar as possible.

Illustration

The testator by a will made on his death-bed bequeathed all his property to C.D. for life and after his decease toa certain hospital. The intention of the testator cannot take effect to its full extent because the gift to the hospital isvoid under section 118, but it will take effect so far as regards the gift to C.D.

Where two clauses of gifts in a will areirreconcileable, so that they cannot possibly stand together, the last shall prevail.

Illustrations

(i) The testator by the first clause of his will leaves his estate of Ramnagar "to A," and by the last clause of hiswill leaves it "to B and not to A". B will have it.

(ii) If a man, at the commencement of his will gives his house to A, and at the close of it directs that his houseshall be sold and the proceeds invested for the benefit of B, the latter disposition will prevail.

A will or bequest not expressive of any definiteintention is void for uncertainty.

Illustration

If a testator says "I bequeath goods to A," or "I bequeath to A," or "I leave to A all the goods mentioned in theSchedule" and no Schedule is found, or "I bequeath 'money,' 'wheat,' 'oil,' " or the like, without saying how much,this is void.

Thedescription contained in a will of property, the subject of gift, shall, unless a contrary intention appears bythe will, be deemed to refer to and comprise the property answering that description at the death of thetestator.

Unless a contrary intention appears bythe will, a bequest of the estate of the testator shall be construed to include any property which he mayhave -power to appoint by will to any object he may think proper, and shall operate as an execution ofsuch power; and a bequest of property described in a general manner shall be construed to include anyproperty to which such description may extend, which he may have power to appoint by will to any objecthe may think proper, and shall operate as an execution of such power.

Where property is bequeathed toor for the benefit of certain objects as a specified person may appoint or for the benefit of certain objectsin such proportions as a specified person may appoint, and the will does not provide for the event of noappointment being made; if the power given by the will is not exercised, the property belongs to all theobjects of the power in equal shares.

Illustration

A, by his will bequeaths a fund to his wife, for her life, and directs that at her death it shall be divided amonghis children in such proportions as she shall appoint. The widow dies without having made any appointment. Thefund will be divided equally among the children.

Where a bequest ismade to the "heirs" or "right heirs" or "relations" or "nearest relations" or "family" or "kindred" or"nearest of kin" or "next-of-kin" of a particular person without any qualifying terms, and the class sodesignated forms the direct and independent object of the bequest, the property bequeathed shallbe distributed as if it had belonged to such person and he had died intestate in respect of it, leaving assetsfor the payment of his debts independently of such property.

Illustrations

(i) A leaves his property "to my own nearest relations". The property goes to those who would be entitled to it ifA had died intestate, leaving assets for the payment of his debts independently of such property.

(ii) A bequeaths 10,000 rupees "to B for his life, and, after the death of B, to my own right heirs". The legacyafter B's death belongs to those who would be entitled to it if it had formed part of A's unbequeathed property.

(iii) A leaves his property to B; but if B dies before him, to B's next-of kin; B dies before A; the propertydevolves as if it had belonged to B, and he had died intestate, leaving assets for the payment of his debtsindependently of such property.

(iv) A leaves 10,000 rupees "to B for his life, and after his decease to the heirs of C". The legacy goes as if ithad belonged to C, and he had died intestate, leaving assets for the payment of his debt independently of the legacy.

Where a bequest is made to the"representatives" or "legal representatives" or "personal representatives" or "executors or administrators"of a particular person, and the class so designated forms the direct and independent object of the bequest,the property bequeathed shall be distributed as if it had belonged to such person and he had died intestatein respect of it.

Illustration

A bequest is made to the "legal representatives" of A. A has died intestate and insolvent. B is his administrator.B is entitled to receive the legacy, and Will apply it in the first place to the discharge of such part of A's debt as mayremain unpaid: if there be any surplus B Will pay it to those persons who at A's death would have been entitled toreceive any property of A's which might remain after payment of his debts, or to the representatives of such persons.

Where property is bequeathed to any person, he isentitled to the whole interest of the testator therein, unless it appears from the Will that only a restrictedinterest was intended for him.

Where a property is bequeathed to a person with a bequest in thealternative to another person or to a class of persons, then, if a contrary intention does not appear by theWill, 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 shalltake the legacy.

Illustrations

(i) A bequest is made to A or to B. A survives the testator. B takes nothing.

(ii) A bequest is made to A or to B. A dies after the date of the Will, and before the testator. The legacy goesto B.

(iii) A bequest is made to A or to B. A is dead at the date of the Will. The legacy goes to B.

(iv) Property is bequeathed to A or his heirs. A survives the testator. A takes the property absolutely.

(v) Properly is bequeathed to A or his nearest of kin. A dies in the lifetime of the testator. Upon the death of thetestator, the bequest to A's nearest of kin takes effect.

(vi) Properly is bequeathed to A for life, and after this death to B or his heirs. A and B survive the testator. Bdies in A's lifetime. Upon A's death the bequest to the heirs of B takes effect.

(vii) Property is bequeathed to A for life, and after his death to B or his heirs. B dies in the testator's lifetime. Asurvives the testator. Upon A's death the bequest to the heirs of B takes effect.

Where property is bequeathedto a person, and words are added which describe a class of persons but do not denote them as directobjects of a distinct and independent gift, such person is entitled to the whole interest of the testatortherein, unless a contrary intention appears by the will.

Illustrations

(i) A bequest is made--

to A and his children,

to A and his children by his present wife,

to A and his heirs,

to A and the heirs of his body,

to A and the heirs male of his body,

to A and the heirs female of his body,

to A and his issue,

to A and his family,

to A and his descendants,

to A and his representatives,

to A and his personal representatives,

to A, his executors and administrators.

In each of these cases, A takes the whole interest which the testator had in the property.

(ii) A bequest is made to A and his brothers. A and his brothers are jointly entitled to the legacy.

(iii) A bequest is made to A for life and after his death to his issue. At the death of A the property belongs inequal shares to all persons who then answer the description of issue of A.

Where a bequest is made to aclass of persons under a general description only, no one to whom the words of the description are not intheir ordinary sense applicable shall take the legacy.

In a will--

(a) the word "children" applies only to lineal descendants in the first degree of the person whose"children" are spoken of;

(b) the word "grandchildren" applies only to lineal descendants in the second degree of the personwhose "grand children" are spoken of;

(c) the words "nephews" and "nieces" apply only to children of brothers or sisters;

(d) the words "cousins," or "first cousins," or "cousins-german," apply only to children ofbrothers or of sisters of the father or mother of the person whose "cousins," or "first cousins," or"cousins-german," are spoken of;

(e) the words "first cousins once removed" apply only to children of cousins-german, or tocousins-german of a parent of the person whose "first cousins once removed" are spoken of;

(f) the words "second cousins" apply only to grandchildren of brothers or of sisters of thegrandfather or grandmother of the person whose "second cousins" are spoken of;

(g) the words "issue" and "descendants" apply to all lineal descendants whatever of the personwhose "issue" or "descendants" are spoken of;

(h) words expressive of collateral relationship apply alike to relatives of full and of half blood;and

(i) all words expressive of relationship apply to a child in the womb who is afterwards born alive.

In the absence of any intimation to the contrary in a will, the word "child," theword "son", the word "daughter" or any word which expresses relationship, is to be understood asdenoting only a legitimate relative, or, where there is no such legitimate relative, a person who hasacquired, at the date of the Will, the reputation of being such relative.

Illustrations

(i) A having three children, B, C and A of whom B and Care legitimate and D is illegitimate leaves his propertyto be equally divided among "my children". The property belongs to B and C in equal shares, to the exclusion of D.

(ii) A, having a niece of illegitimate birth, who has acquired the reputation of being his niece and having nolegitimate niece, bequeaths a sum of money to his niece. The illegitimate niece is entitled to the legacy.

(iii) A, having in his Will enumerated his children, and named as one of them B, who is illegitimate, leaves alegacy to "my said children". B Will take a share in the legacy along with the legitimate children.

(iv) A leaves a legacy to "the children of B". B is dead and has left none but illegitimate children. All those whohad at the date of the Will acquired the reputation of being the children of B are objects of the gift.

(v) A bequeaths a legacy to "the children of B". B never had any legitimate child. C and D had, at the date ofthe Will, acquired the reputation of being children of B. After the date of the Will and before the death of thetestator, E and F were born, and acquired the reputation of being children of B. Only C and D are objects of thebequest.

(vi) A makes a bequest in favour of his child by a certain woman, not his wife. B had acquired at the date of theWill the reputation of being the child of A by the woman designated. B takes the legacy.

(vii) A makes a bequest in favour of his child to be born of a woman who never becomes his wife. The bequestis void.

(viii) A makes a bequest in favour of the child of which a certain woman, not married to him, is pregnant. Thebequest is void.

Where awill purports to make two bequests to the same person, and a question arises whether the testator intendedto make the second bequest instead of or in addition to the first; if there is nothing in the will to showwhat he intended, the following rules shall have effect in determining the construction to be put upon thewill:--

(a) If the same specific thing is bequeathed twice to the same legatee in the same will or in thewill and again in the codicil, he is entitled to receive that specific thing only.

(b) Where one and the same will or one and the same codicil purports to make, in two places, abequest to the same person of the same quantity or amount of anything, he shall be entitled to onesuch legacy only.

(c) Where two legacies of unequal amount are given to the same person in the same will, or in thesame codicil, the legatee is entitled to both.

(d) Where two legacies, whether equal or unequal in amount, are given to the same legatee, oneby a will and the other by a codicil, or each by a different codicil, the legatee is entitled to bothlegacies.

Explanation: In clauses (a) to (d) of this section, the word "will" does not include a codicil.

Illustrations

(i) A, having ten shares, and no more, in the Imperial Bank of India, made his Will, which contains near itscommencement the words "I bequeath my ten shares in the Imperial Bank of India to B". After other bequests, theWill concludes with the words "and I bequeath my ten shares in the Imperial Bank of India to B". B is entitledsimply to receive A's ten shares in the Imperial Bank of India.

(ii) A, having one diamond ring, which was given to him by B, bequeaths to C the diamond ring which wasgiven by B. A afterwards made a codicil to his Will, and thereby, after giving other legacies, he bequeathed to C thediamond ring which was given to him by B, C can claim nothing except the diamond ring which was given to A byB.

(iii) A, by his will, bequeaths to B the sum of 5,000 rupees and afterwards in the same will repeats the bequestin the same words. B is entitled to one legacy of 5,000 rupees only.

(iv) A, by his will, bequeaths to B the sum of 5,000 rupees and afterwards in the same will bequeaths to B thesum of 6,000 rupees. B is entitled to receive 11,000 rupees.

(v) A, by his will, bequeaths to B 5,000 rupees and by a codicil to the will he bequeaths to him 5,000 rupees. Bis entitled to receive 10,000 rupees.

(vi) A, by one codicil to his will, bequeaths to B 5,000 rupees and by another codicil bequeaths to him, 6,000rupees. B is entitled to receive 11,000 rupees.

(vii) A, by his will, bequeaths "500 rupees to B because she was my nurse", and is another part of the willbequeaths 500 rupees to B "because she went to England with my children". B is entitled to receive 1,000 rupees.

(viii) A, by his will, bequeaths to B the sum of 5,000 rupees and also, in another part of the will, an annuity of400 rupees. B is entitled to both legacies.

(ix) A, by his will, bequeaths to B the sum of 5,000 rupees and also bequeaths to him the sum of 5,000 rupees ifhe shall attain the age of 18. B is entitled absolutely to one sum of 5,000 rupees, and takes a contingent interest inanother sum of 5,000 rupees.

A residuary legatee may be constituted by any words thatshow an intention on the part of the testator that the person designated shall take the surplus or residue ofhis property.

Illustrations

(i) A makes her will, consisting of several testamentary papers, in one of which are contained the followingwords:--"I think there will be something left, after all funeral expenses, etc., to give to B, now at school, towardsequipping him to any profession he may hereafter be appointed to." B is constituted residuary legatee.

(ii) A makes his will, with the following passage at the end of it:--"I believe there will be found sufficient inmy banker's hands to defray and discharge my debts, which I hereby, desire B to do, and keep the residue for herown use and pleasure."B is constituted the residuary legatee.

(iii) A bequeaths all his property to B, except certain stock and funds, which he bequeaths to C. B is theresiduary legatee.

Under a residuary bequest, the legatee isentitled to all property belonging to the testator at the time of his death, of which he has not made anyother testamentary disposition which is capable of taking effect.

Illustration

A by his will bequeaths certain legacies, of which one is void under section 118, and another lapses by the deathof 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 theresidue.

If a legacy is given in general terms, withoutspecifying the time when it is to be paid, the legatee has a vested interest in it from the day of the death ofthe testator, and, if he dies without having received it, it shall pass to his representatives.

(1) If the legatee does not survive the testator, the legacy cannottake effect, but shall lapse and form part of the residue of the testator's property, unless it appears by theWill 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 hesurvived the testator.

Illustrations

(i) The testator bequeaths to B "500 rupees which B owes me". B dies before the testator; the legacy lapses.

(ii) A bequest is made to A and his children. A dies before the testator, or happens to be dead when the will ismade. The legacy to A and his children lapses.

(iii) A legacy is given to A, and, in case of his dying before the testator, to B. A dies before the testator. Thelegacy 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; Bsurvives the testator. The bequest to B takes effect.

(v) A sum of money is bequeathed to A on his completing his eighteenth year, and in case he should die beforehe completes his eighteenth year, to B. A completes his eighteenth year, and dies in the lifetime of the testator. Thelegacy to A lapses, and the bequest to ii does not take effect.

(vi) The testator and the legatee perished in the same ship-wreck. There is no evidence to show which died first.The legacy lapses.

If a legacy is given totwo persons jointly, and one of them dies before the testator, the other legatee takes the whole.

Illustration

The legacy is simply to A and B. A dies before the testator. B takes the legacy.

If a legacy is given tolegatees in words which show that the testator intended to give them distinct shares of it, then, if anylegatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue ofthe testator's property.

Illustration

A sum of money is bequeathed to A, B and C, to be equally divided among them. A dies before the testator, Band C Will only take so much as they would have had if A had survived the testator.

Where a share which lapses is a part of thegeneral residue bequeathed by the Will, that share shall go as undisposed of.

Illustration

The testator bequeaths me residue of his estate to A, B and C, to be equally divided between them. A diesbefore the testator. His one-third of the residue goes as undisposed of.

Where a bequest has been made to any child or other lineal descendant of thetestator, and the legatee dies in the lifetime of the testator, but any lineal descendant of his survives thetestator, the bequest shall not lapse, but shall take effect if the death of the legatee had happenedimmediately after the death of the testator, unless a contrary intention appears by the Will.

Illustration

A makes his Will, by which he bequeaths a sum of money to his son, B, for his own absolute use and benefit. Bdies before A, leaving a son, C, who survives A, and having made his Will whereby he bequeaths all his property tohis widow. D. The money goes to D.

Where a bequest is made to oneperson, for the benefit of another, the legacy does not lapse by the death, in the testator's lifetime, of theperson to whom the bequest is made.

Where a bequest is made simply to adescribed class of persons, the thing bequeathed shall go only to such as are alive at the testator's death.

Exception.--If property is bequeathed to a class of persons described as standing in a particulardegree of kindred to a specified individual, but their possession of it is deferred until a time later than thedeath of the testator by reason of a prior bequest or otherwise, the property shall at that time go to such ofthem as are then alive, and to the representatives of any of them who have died since the death of thetestator.

Illustrations

(i) A bequeaths 1,000 rupees to "the children of B" without saying when it is to be distributed among them. Bhad died previous to the date of the will, leaving three children, C, D and E. E died after the date of the will, butbefore the death of A. C and D survive A. The legacy will belong to C and D, to the exclusion of the representativesof E.

(ii) A lease for years of a house, was bequeathed to A for his life, and after his decease to the children of B. Atthe death of the testator, B had two children living, C and D, and he never had any other child. Afterwards, duringthe lifetime of A, C died, leaving E, his executor. D has survived A, D and E are jointly entitled to so much of theleasehold term as remains unexpired.

(iii) A sum of money was bequeathed to A for her life, and after her decease to the children of 13. At the deathof the testator, B had two children living, C and D, and, after that event, two children, E and F, were born to B. Cand E died in the lifetime of A, C having made a will, E having made no will. A has died, leaving D and F survivingher. The legacy is to be divided into four equal parts, one of which is to be paid to the executor of C, one to D, oneto the administrator of E and one to F.

(iv) A bequeaths one-third of his lands to B for his life, and after his decease to the sisters of B. At the death ofthe testator, B had two sisters living, C and D, and after that event another sister E was born. C died during the lifeof B, D and E have survived B. One-third of As land belong to D, E and the representatives of C, in, equal shares.

(v) A bequeaths 1,000 rupees to B for life and after his death equally among the children of C. Up to the deathof B, C had not had any child. The bequest after the death of B is void.

(vi) A bequeaths 1,000 rupees to "all the children born or to be born" of B to be divided among them at thedeath of C. At the death of the testator, B has two children living, D and E. After the death of the testator, but in thelifetime of C, two other children, F and G, are born to B. After the death of C, another child is horn to B. The legacybelongs to D, E, F and G, to the exclusion of the after-born child of B.

(vii) A bequeaths a fund to the children of B, to be divided among them when the eldest shall attain majority. Atthe testator's death, B had one child living, named C. He afterwards had two other children, named D and E. E died,but C and D were living when C attained majority. The fund belongs to C, D and the representatives of E, to theexclusion of any child who may be born to B after C's attaining majority.

Where a bequest is made to a person by a particular description, and there is no person in existence at thetestator's death who answers the description, the bequest is void.

Exception.--If property is bequeathed to a person described as standing in a particular degree ofkindred to a specified individual, but his possession of it is deferred until a time later than the death of thetestator, by reason of a prior bequest or otherwise; and if a person answering the description is alive at thedeath of the testator, or comes into existence between that event and such later time, the property shall, atsuch later time, go to that person, or, if he is dead, to his representatives.

Illustrations

(i) A bequeaths 1,000 rupees to the eldest son of B. At the death of the testator, B has no son. The bequest isvoid.

(ii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the testator,C had no son. Afterwards, during the life of B, a son is born to C. Upon B's death the legacy goes to .C's son.

(iii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the testator,C had no son. Afterwards, during the life of B, a son, named D, is born to C. D dies, then B dies. The legacy goes tothe representative of D.

(iv) A bequeaths his estate of Green Acre to be for life, and at his decease, to the eldest son of C. Up to thedeath of B, C has had no son. The bequest to C's eldest son is void.

(v) A bequeaths 1,000 rupees to the eldest son of C, to be paid to him after the death of B. At the death of thetestator C has no son, but a son is afterwards born to him during the life of B and is alive at B's death. C's son isentitled to the 1,000 rupees.

Where abequest is made to a person not in existence at the time of the testator's death, subject to a prior bequestcontained in the will, the later bequest shall be void, unless it comprises the whole of the remaininginterest of the testator in the thing bequeathed.

Illustrations

(i) Property is bequeathed to A for his life, and after his death to his eldest son for life, and after the death of thelatter to his eldest son. At the time of the testator's death, A has no son. Here the bequest to A's eldest son is abequest to a person not in existence at the testator's death. It is not a bequest of the whole interest that remains to thetestator. The bequest to A's eldest son for his life is void.

(ii) A fund is bequeathed to A for his life, and after his death to his daughters. A survives the testator. A hasdaughters some of whom were not in existence at the testator's death. The bequest to A's daughters comprises thewhole interest that remains to the testator in the thing bequeathed. The bequest to A's daughters is valid.

(iii) A fund is bequeathed to A for his life, and after his death to his daughters, with a direction that, if any ofthem marries under the age of eighteen, her portion shall be settled so that it may belong, to herself for life and maybe divisible among her children after her death. A has no daughters living at the time of the testator's death, but hasdaughters born afterwards who survive him. Here the direction for a settlement has the effect in the case of eachdaughter who marries under eighteen of substituting for the absolute bequest to her a bequest to her merely for herlife; that is to say, a bequest to a person not in existence at the time of the testator's death of something which is lessthan the whole interest that remains to the testator in the thing bequeathed. The direction to settle the fund is void.

(iv) A bequeaths a sum of money to B for life, and directs that upon the death of B the fund shall be settled uponhis daughters, so that the portion of each daughter may belong to herself for life, and may be divided among herchildren after her death. B has no daughter living at the time of the testator's death. In this case the only bequest tothe daughters of B is contained in the direction to settle the fund, and this direction amounts to a bequest to personsnot yet born, of a life-interest in the fund, that is to say, of something which is less than the whole interest thatremains to the testator in the thing bequeathed. The direction to settle the fund upon the daughters of B is void.

No bequest is valid whereby the vesting of the thing bequeathed maybe delayed beyond the life-time of one or more persons living at the testator's death and the minority ofsome 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.

Illustrations

(i) A fund is bequeathed to A for his life and after his death to B for his life; and after B's death to such of thesons of B as shall first attain the age of 25. A and B survive the testator. Here the son of B who shall first attain theage of 25 may be a son born after the death of the testator; such son may not attain 25 until more than 18 years haveelapsed from the death of the longer liver of A and B; and the vesting of the fund may thus be delayed beyond thelifetime of A and B and the minority of the sons of B. The bequest after B's death is void.

(ii) A fund is bequeathed to A for his life, and after his death to B for his life, and after B's death to such of B'ssons as shall first attain the age of 25. B dies in the lifetime of the testator, leaving one or more sons. In this case thesons of B are persons living at the time of the testator's decease, and the time ashen either of them will attain 25necessarily falls within his own lifetime. The bequest is valid.

(iii) A fund is bequeathed to A for his life, and after his death to B for his life, with a direction that after B'sdeath it shall be divided amongst such of B's children as shall attain the age of 18, but that, if no child of B shallattain that age, the fund shall go to C. Here the time for the division of the fund must arrive at the latest at theexpiration of 18 years from the death of B, a person living at the testator's decease. All the bequests are valid.

(iv) A fund is bequeathed to trustees for the benefit of the testator's daughters, with a direction that, if any ofthem marry under age, her share of the fund shall be settled so as to devolve after her death upon such of herchildren as shall attain the age of 18. Any daugther of the testator to whom the direction applies must be in existenceat his decease, and any portion of the fund which may eventually be settled as directed must vest not later than 18years from the death of the daughters whose share it was. All these provisions are valid.

If abequest is made to a class of persons with regard to some of whom it is inoperative by reason of theprovisions of section 113 or section 114, such bequest shall be 1[void in regard to those persons only, andnot in regard to the whole class].

Illustrations

(i) A fund is bequeathed to A for life, and after his death to all his children who shall attain the age of 25. Asurvives the testator, and has some children living at the testator's death. Each child of A's living at the testator'sdeath must attain the age of 25 (if at all) within the limits allowed for a bequest. But A may have children after thetestator's decease, some of whom may not attain the age of 25 until more than 18 years have elapsed after thedecease of A. The bequest to A's children, therefore, is inoperative as to any child born after the testator's death;

2[and in regard to those who do not attain the age of 25 within 18 years after A's death, but is operative in regard tothe other children of Al

(ii) A fund is bequeathed to A for his life, and after his death to B, C, D and all other children of A who shallattain the age of 25. B, C, D are children of A living at the testator's decease. In all other respects the case is thesame as that supposed in Illustration (i). 2[Although the mention of B, C and D does not prevent the bequest frombeing regarded as a bequest to a class, it is not wholly void. It is operative as regards any of the children B, C or D,who attain the age of 25 within 18 years after A's death].

1. Subs. by Act 21 of 1929, s. 14, for "wholly void".

2. Subs. by s. 14, ibid., for certain words.

1[Where by reason of any of the rulescontained in sections 113 and 114, any bequest in favour of a person or of a class of persons is void inregard to such person or the whole of such class, any bequest contained in the same will and intended totake effect after or upon failure of such prior bequest is also void.]

Illustrations

(i) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of 25,for his life, and after the decease of such son to B. A and B survive the testator. The bequest to B is intended to takeeffect after the bequest to such of the sons of A as shall first attain the age of 25, which bequest is void under section114. The bequest to B is void.

(ii) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of25, and, if no son of A shall attain that age, to B. A and B survive the testator. The bequest to B is intended to takeeffect upon failure of the bequest to such of A's sons as shall first attain the age of 25, which bequest is void undersection 114. The bequest to B is void.

1. Subs. by s. 14, ibid., for section 116.

1[117. Effect of direction for accumulation.u2014(1) Where the terms of a will direct that the incomearising from any property shall be accumulated either wholly or in part during any period longer than aperiod 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 aforesaidperiod, and at the end of such period of eighteen years the property and the income thereof shall bedisposed of as if the period during which the accumulation has been directed to be made had elapsed.

(2) 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 persontaking any interest under the will, or

(iii) the preservation or maintenance of any property bequeathed;

and such direction may be made accordingly.]

1. Subs. by Act 21 of 1929, s. 14, for section 117.

No man having a nephew or niece or any nearerrelative shall have power to bequeath any property to religious or charitable uses, except by a willexecuted not less than twelve months before his death, and deposited within six months from its executionin some place provided by law for the safe custody of the wills of living persons:

1[Provided that nothing in this section shall apply to a Parsi.]

Illustrations

A having a nephew makes a bequest by a will not executed and deposited as required--

for the relief of poor people;

for the maintenance of sick soldiers;

for the erection or support of a hospital;

for the education and preferment of orphans;

for the support of scholars;

for the erection or support of a school;

for the building and repairs of a bridge;

for the making of roads;

for the erection or support of a church;

for the repairs of a church;

for the benefit of ministers of religion;

for the formation or support of a public garden;

All these bequests are void.

1. Ins. by Act 51 of 1991, s. 6.

Where by the terms of abequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it atthe proper time shall, unless a contrary intention appears by the will, become vested in the legatee on thetestator's death, and shall pass to the legatee's representatives if he dies before that time and withouthaving received the legacy, and in such cases the legacy is from the testator's death said to be vested ininterest.

Explanation.--An intention that a legacy to any person shall not become vested in interest in him isnot to be inferred merely from a provision whereby the payment or possession of the thing bequeathed ispostponed, or whereby a prior interest therein is bequeathed to some other person, or whereby the incomearising from the fund bequeathed is directed to be accumulated until the time of payment arrives, or froma provision that, if a particular event shall happen, the legacy shall go over to another person.

Illustrations

(i) A bequeaths to B 100 rupees, to be paid to him at the death of C. On A's death the legacy becomes vested ininterest in B, and if he dies before C, his representatives are entitled to the legacy.

(ii) A bequeaths to B 100 rupees, to be paid to him upon his attaining the age of 18. On A's death the legacybecomes vested in interest B.

(iii) A fund is bequeathed to A for life, and after his death to B. On the testator's death the legacy to B becomesvested in interest in B.

(iv) A fund is bequeathed to A until B attains the age of 18 and then to B. The legacy to B is vested in interestfrom the testator's death.

(v) A bequeaths the whole of his property to B upon trust to pay certain debts out of the income, and then tomake over the fund to C. At A's death the gift to C becomes vested in interest in him.

(vi) A fund is bequeathed to A, B and C in equal shares to be paid to them on their attaining the age of 18,respectively, with a proviso that, if all of them die under the age of 18, the legacy shall devolve upon D. On thedeath of the testator, the shares vested in interest in A, B and C, subject to be divested in case A, B and C shall alldie under 18, and, upon the death of any of them (except the last survivor) under the age of 18, his vested interestpasses, so subject, to his representatives.

(1) A legacybequeathed in case a specified uncertain event shall happen does not vest until that event happens.

(2) A legacy bequeathed in case a specified uncertain event shall not happen does not vest until thehappening of that event becomes impossible.

(3) In either case, until the condition has been fulfilled, the interest of the legatee is called contingent.

Exception.--Where a fund is bequeathed to any person upon his attaining a particular age, and thewill also gives to him absolutely the income to arise from the fund before he reaches that age, or directsthe income, or so much of it as may be necessary, to be applied for his benefit, the bequest of the fund isnot contingent.

Illustrations

(i) A legacy is bequeathed to D in case A, B and C shall all die under the age of 18. D has a contingent interestin the legacy until A, B and C all die under 18, or one of them attains that age.

(ii) A sum of money is bequeathed to A "in case he shall attain the age of 18," or "when he shall attain the ageof 18". A's interest in the legacy is contingent until the condition is fulfilled by his attaining that age.

(iii) An estate is bequeathed to A for life, and after his death to B if B shall then be living; but if B shall not bethen living to C. A, B and C survive the testator. B and C each take a contingent interest in the estate until the eventwhich is to vest it in one, or in the other has happened.

(iv) An estate is bequeathed as in the case last supposed. B dies in the lifetime of A and C. Upon the death of B,C acquires a vested right to obtain possession of the estate upon A's death.

(v) A legacy is bequeathed to A when she shall attain the age of 18, or shall marry under that age with theconsent of B, with a proviso that, if she neither attains 18 nor marries under that age with B's consent, the legacyshall go to C. A and C each take a contingent interest in the legacy. A attains the age of 18. A becomes absolutelyentitled to the legacy although she may have married under 18 without the consent of B.

(vi) An estate is bequeathed to A until he shall marry and after that event to B. B's interest in the bequest iscontingent until the condition is fulfilled by A's marrying.

(vii) An estate is bequeathed to A until he shall take advantage of any law for the relief of insolvent debtors, andafter that event to B. B's interest in the bequest is contingent until A takes advantage of such a law.

(viii) An estate is bequeathed to A if he shall pay 500 rupees to B. A's interest in the bequest is contingent untilhe has paid 500 rupees to B.

(ix) A leaves his farm of Sultanpur Khurd to B, if B shall convey his own farm of Sultanpur Buzurg to C. B'sinterest in the bequest is contingent until he has conveyed the latter farm to C.

(x) A fund is bequeathed to A if B shall not marry C within five years after the testator's death. A's interest inthe legacy is contingent until the condition is fulfilled by the expiration of the five years without B's having marriedC, or by the occurrence within that period of an event which makes the fulfilment of the condition impossible.

(xi) A fund is bequeathed to A if B shall not make any provision for him by will. The legacy is contingent untilB's death.

(xii) A bequeaths of B 500 rupees a year upon his attaining the age of 18, and directs that the interest, or acompetent part thereof, shall be applied for his benefit until he reaches that age. The legacy is vested.

(xiii) A bequeaths to B 500 rupees when he shall attain the age of 18 and directs that a certain sum, out ofanother fund, shall be applied for his maintenance until he arrives at that age. The legacy is contingent.

Where a bequest is made only to such members of a class as shall have attained a particular age, aperson 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 anychild of A shall be under the age of 18, the income of the share, to which it may be presumed he will be eventuallyentitled, shall be applied for his maintenance and education. No child of A who is under the age of 18 has a vestedinterest in the bequest.

Where a bequest imposes an obligation on the legatee, he can take nothingby it unless he accepts it fully.

Illustration

A, having shares in (X), a prosperous joint stock company and also shares in (Y), a joint stock company indifficulties, in respect of which shares heavy calls are expected to be made, bequeaths to B all his shares in jointstock companies; B refuses to accept the shares in (Y). He forfeits the shares in (X).

Where a will contains two separate and independent bequests to the same person, the legatee isat liberty to accept one of them and refuse the other, although the former may be beneficial and the latteronerous.

Illustration

A, having a lease for a term of years of a house at a rent which he and his representatives are bound to payduring the term, and which is higher than the house can be let for, bequeaths to B the lease and a sum of money. Brefuses to accept the lease. He will not by this refusal forfeit the money.

Where a legacy is given if a specified uncertain event shall happen and no time ismentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such eventhappens before the period when the fund bequeathed is payable or distributable.

Illustrations

(i) A legacy is bequeathed to A, and, in case of his death, to B. If A survives the testator, the legacy to B doesnot take effect.

(ii) A legacy is bequeathed to A, and, in case of his death without children, to B. If A survives the testator ordies in his lifetime leaving a child, the legacy to B does not take effect.

(iii) A legacy is bequeathed to A when and if he attains the age of 18, and, in case of his death, to B. A attainsthe age of 18. The Legacy to B does not take effect.

(iv) A legacy is bequeathed to A for life, and, after his death to B, and, "in case of B's death without children,"to C. The words "in case of B's death without children" are to be understood as meaning in case B dies withoutchildren during the lifetime of A.

(v) A legacy is bequeathed to A for life, and, after his death to B, and, "in case of B's death," to C. The words"in case of B's death" are to be considered as meaning "in case B dies in the lifetime of A".

Where a bequest is made to such of certain persons as shall be surviving at some period, but the exactperiod is not specified the legacy shall go to such of them as are alive at the time of payment ordistribution, unless a contrary intention appears by the will.

Illustrations

(i) Property is bequeathed to A and B to be equally divided between them, or to the survivor of them. If both Aand B survive the testator, the legacy is equally divided between them. If A dies before the testator, and B survivesthe testator, it goes to B.

(ii) Property is bequeathed to A for life, and, after his death, to B and C, to be equally divided between them, orto the survivor of them. B dies during the life of A; C survives A. At A's death the legacy goes to C.

(iii) Property is bequeathed to A for life, and after his death to B and C, or the survivor, with a direction that, ifB should not survive the testator, his children are to stand in his place. C dies during the life of the testator; Bsurvives the testator, but dies in the lifetime of A. The legacy goes to the representative of B.

(iv) Property is bequeathed to A for life, and, after his death, to B and C, with a direction that, in case either ofthem dies in the lifetime of A, the whole shall go to the survivor. B dies in the lifetime of A. Afterward C dies in thelifetime of A. The legacy goes to the representative of C.

A bequest upon an impossible condition is void.

Illustrations

(i) An estate is bequeathed to A on condition that he shall walk 100 miles in an hour. The bequest is void.

(ii) A bequeaths 500 rupees to B on condition that he shall marry A's daughter. A's daughter was dead at thedate of the will. The bequest is void.

A bequest upon a condition, the fulfilment ofwhich would be contrary to law or to morality is void.

Illustrations

(i) A bequeaths 500 rupees to B on condition that he shall murder C. The bequest is void.

(ii) A bequeaths 5,000 rupees to his niece if she will desert her husband. The bequest is void.

Where a will imposes a condition tobe fulfilled before the legatee can take a vested interest in the thing bequeathed, the condition shall beconsidered to have been fulfilled if it has been substantially complied with.

Illustrations

(i) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C, D and E. A marrieswith the written consent of B. C is present at the marriage. D sends a present to A previous to the marriage. E hasbeen personally informed by A of his intentions, and has made no objection. A has fulfilled the condition.

(ii) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. D dies. Amarries with the consent of B and C. A has fulfilled the condition.

(iii) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A marries inthe lifetime of B, C and D, with the consent of B and C only. A has not fulfilled the condition.

(iv) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A obtains theunconditional assent of B, C and D to his marriage with E. Afterwards B, C and D capriciously retract their consent.

A marries E. A has fulfilled the condition.

(v) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. A marrieswithout the consent of B, C and D, but obtains their consent after the marriage. A has not fulfilled the condition.

(vi) A make his will whereby he bequeaths a sum of money to B if B shall marry with the consent of A'sexecutors. B marries during the lifetime of A, and A afterwards expresses his approbation of the marriage. A dies.

The bequest to B takes effect.

(vii) A legacy is bequeathed to A if he executes a certain document within a time specified in the will. Thedocument is executed by A within a reasonable time, but not within the time specified in the will. A has notperformed the condition, and is not entitled to receive the legacy.

Where there is a bequest to one personand a bequest of the same thing to another, if the prior bequest shall fail, the second bequest shall takeeffect upon the failure of the prior bequest although the failure may not have occurred in the mannercontemplated by the testator.

Illustrations

(i) A bequeaths a sum of money to his own children surviving him, and, if they all die under 18, to B. A dieswithout having ever had a child. The bequest to B takes effect.

(ii) A bequeaths a sum of money to B, on condition that he shall execute a certain document within threemonths after A's death, and, if he should neglect to do so, to C. B dies in the testator's lifetime. The bequest to Ctakes effect.

Where the will shows anintention that the second bequest shall take effect only in the event of the first bequest failing in aparticular manner, the second bequest shall not take effect, unless the prior bequest fails in that particularmanner.

Illustration

A makes a bequest to his wife, but in case she should die in his lifetime, bequeaths to B that which he hadbequeathed to her. A and his wife perish together, under circumstances which make it impossible to prove that shedied before him, the bequest to B does not take effect.

(1) A bequest may be made to any person with the condition super-added, that, in case a specifieduncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specifieduncertain event shall not happen, the thing bequeathed shall go over to another person.

(2) In each case the ulterior bequest is subject to the rules contained in sections 120, 121, 122, 123,124, 125, 126, 127, 129 and 130.

Illustrations

(i) A sum of money is bequeathed to A, to be paid to him at the age of 18, and if he shall die before he attainsthat age, to B. A takes a vested interest in the legacy, subject to be divested and to go to B in case A dies under 18.

(ii) An estate is bequeathed to A with a proviso that if A shall dispute the competency of the testator to make awill, the estate shall go to B. A disputes the competency of the testator to make a will. The estate goes to B.

(iii) A sum of money is bequeathed to A for life, and, after his death, to B, but if B shall then be dead leaving ason, such son is to stand in the place of B. B takes a vested interest in the legacy, subject to be divested if he diesleaving a son in A's lifetime.

(iv) A sum of money is bequeathed to A and B, and if either should die during the life of C, then to the survivorliving at the death of C. A and B die before C. The gift over cannot take effect, but the representative of A takes onehalf of the money, and the representative of B takes the other half.

(v) A bequeaths to B the interest of a fund for life, and directs the fund to be divided at her death equally amongher three children, or such of them as shall he living at her death. All the children of B die in B's lifetime. Thebequest over cannot take effect, but the interests of the children pass to their representatives.

An ulterior bequest of the kind contemplated by section131 cannot take effect, unless the condition is strictly fulfilled.

Illustrations

(i) A legacy is bequeathed to A, with a proviso that, if he marries without the consent of B, C and D, the legacyshall go to E. E' dies. Even if A marries without the consent of B and C, the gift to E does not take effect.

(ii) A legacy is bequeathed to A, with a proviso that, if he marries without the consent of B, the legacy shall goto C. A marries with the consent of B. He afterwards becomes a widower and marries again without the consent ofB. The bequest to C does not take effect.

(iii) A legacy is bequeathed to A, to be paid at 18, or marriage, with a proviso that, if A dies under 18 or marrieswithout the consent of B, the legacy shall go to C. A marries under 18, without the consent of B. The bequest to Ctakes effect.

If the ulterior bequest be not valid theoriginal bequest is not affected by it.

Illustrations

(i) An estate is bequeathed to A for his life with condition super-added that, if he shall not on a given day walk100 miles in an hour, the estate shall go to B. The condition being void, A retains his estate as if no condition hadbeen inserted in the will.

(ii) An estate is bequeathed to A for her life and, if she do not desert her husband, to B. A is entitled to the estateduring her life as if no condition had been inserted in the will.

(iii) An estate is bequeathed to A for life, and, if he marries, to the eldest son of B for life. B, at the date of thetestator's death, had not had a son. The bequest over is void under section 105, and A is entitled to the estate duringhis life.

A bequest may be made with the condition super-added that it shallcease to have effect in case a specified uncertain event shall happen, or in case a specified uncertain eventshall not happen.

Illustrations

(i) An estate is bequeathed to A for his life, with a proviso that, in case he shall cut down a certain wood, thebequest shall cease to have any effect. A cuts down the wood. He loses his life-interest in the estate.

(ii) An estate is bequeathed to A, provided that, if he marries under the age of 25 without the consent of theexecutors named in the will, the estate shall cease to belong to him. A marries under 25 without the consent of theexecutors. The estate ceases to belong to him.

(iii) An estate is bequeathed to A, provided that, if he shall not go to England within three years after thetestator's death, his interest in the estate shall cease. A does not go to England within the time prescribed. Hisinterest in the estate ceases.

(iv) An estate is bequeathed to A, with a proviso that, if she becomes a nun, she shall cease to have any interestin the estate. A becomes a nun. She loses her interest under the will.

(v) A fund is bequeathed to A for life, and, after his death, to B, if B shall be then living, with a proviso that, ifB shall become a nun, the bequest to her shall cease to have any effect. B becomes a nun in the lifetime of A. Shethereby loses her contingent interest in the fund.

In order that a condition that abequest shall cease to have effect may be valid, it is necessary that the event to which it relates be onewhich could legally constitute the condition of a bequest as contemplated by section 120.

Where a bequest is madewith a condition super-added that, unless the legatee shall perform a certain act, the subject-matter of thebequest shall go to another person, or the bequest shall cease to have effect but no time is specified for theperformance of the act; if the legatee takes any step which renders impossible or indefinitely postponesthe performance of the act required, the legacy shall go as if the legatee had died without performing suchact.

Illustrations

(i) A bequest is made to A, with a proviso that, unless he enters the Army, the legacy shall go over to B. A takesHoly Orders, and thereby renders it impossible that he should fulfil the condition. B is entitled to receive the legacy.

(ii) A bequest is made to A, with a proviso that it shall cease to have any effect if he does not marry B'sdaughter. A marries a stranger and thereby indefinitely postpones the fulfilment of the conditions. The bequestceases to have effect.

Where the will requires an act to be performed by the legatee within a specified time,either as a condition to be fulfilled before the legacy is enjoyed, or as a condition upon the nonfulfilment of which the subject-matter of the bequest is to go over to another person or the bequest is tocease to have effect, the act must be performed within the time specified, unless the performance of it beprevented by fraud, in which case such further time shall be allowed as shall be requisite to make up forthe delay caused by such fraud.

Where a fund is bequeathed absolutely to or for the benefit of anyperson, but the will contains a direction that it shall be applied or enjoyed in a particular manner, thelegatee shall be entitled to receive the fund as if the will had contained no such direction.

Illustration

A sum of money is bequeathed towards purchasing a country residence for A, or to purchase an annuity for A,or to place A in any business. A choses to receive the legacy in money. He is entitled to do so.

Where a testator absolutely bequeaths a fund, so as to sever it from his own estate,but directs that the mode of enjoyment of it by the legatee shall be restricted so as to secure a specifiedbenefit for the legatee; if that benefit cannot be obtained for the legatee, the fund belongs to him as if thewill had contained no such direction.

Illustrations

(i) A bequeaths the residue of his property to be divided equally among his daughters, and directs that the sharesof the daughters shall be settled upon themselves respectively for life and be paid to their children after their death.All the daughters die unmarried. The representatives of each daughter are entitled to her share of the residue.

(ii) A directs his trustees to raise a sum of money for his daughter, and he then directs that they shall invest thefund and pay the income arising from it to her during her life, and divide the principal among her children after herdeath. The daughter dies without having ever had a child. Her representatives are entitled to the fund.

Where a testatordoes not absolutely bequeath a fund, so as to sever it from his own estate, but gives it for certain purposes,and part of those purposes cannot be fulfilled, the fund, or so much of it as has not been exhausted uponthe objects contemplated by the will, remains a part of the estate of the testator.

Illustrations

(i) A directs that his trustees shall invest a sum of money in a particular way, and shall pay the interest to his sonfor life, and at his death shall divide the principal among his children. The son dies without having ever had a child.The fund, after the son's death, belongs to the estate of the testator.

(ii) A bequeaths the residue of his estate, to be divided equally among his daughters, with a direction that theyare to have the interest only during their lives, and that at their decease the fund shall go to their children. Thedaughters have no children. The fund belongs to the estate of the testator.

If alegacy is bequeathed to a person who is named an executor of the will, he shall not take the legacy, unlesshe proves the will or otherwise manifests an intention to act as executor.

Illustration

A legacy is given to A, who is named an executor. A orders the funeral according to the directions contained inthe will, and dies a few days after the testator, without having proved the will. A has manifested an intention to actas executor.

Where a testator bequeaths to any person a specified part of hisproperty, which is distinguished from all other parts of his property, the legacy is said to be specific.

Illustrations

(i) A bequeaths to B--

"the diamond ring presented to me by C":

"my gold chain":

"a certain bale of wool":

"a certain piece of cloth":

"all my household goods which shall be in or about my dwelling-house in M. Street, in Calcutta, at time of my death":

"the sum of 1,000 rupees in a certain chest":

"the debt which B owes me":

"all my bills, bonds and securities belonging to me lying in my lodgings in Calcutta":

"all my furniture in my house in Calcutta":

"all my goods on board a certain ship now lying in the river Hughli":

"2,000 rupees which I have in the hands of C":

"the money due to me on the bond of D":

"my mortgage on the Rampur factory":

"one-half of the money owing to me on my mortgage of Rampur factory":

"1,000 rupees, being part of a debt due to me from C":

"my capital stock of 1,0001 in East India Stock":

"my promissory notes of the Central Government for 10,000 rupees in their 4 per cent. Loan":

"all such sums of money as my executors may, after my-death, receive in respect of the debt due to me from theinsolvent firm of D and Company":

"all the wine which I may have in my cellar at the time of my death":

"such of my horses as B may select"

"all my shares in the Imperial Bank of India":

"all my shares in the Imperial Bank Of India which I may possess at the time of my death":

"all the money which I have in the 51/2 per cent. loan of the Central Government":

"all the Government securities I shall be entitled to at the time of my decease".

Each of these legacies is specific.

(ii) A, having Government promissory notes for 10,000 rupees, bequeaths to his executors "Government promissory notes/for 10,000 rupees in trust to sell" for the benefit of B. The legacy is specific.

(iii) A, having property at Benares, and also in other places, bequeaths to B all his property at Benares. The legacy isspecific.

(iv) A bequeaths to B--

his house in Calcutta:

his zamindari of Rampur:

his taluq of Ramnagar:

his lease of the indigo-factory of Salkya:

an annuity of 500 rupees out of the rents of his zamindari of W.

A directs his zamindari of X to be sold, and the proceeds to be invested for the benefit of B.

Each of these bequests is specific.

(v) A by his will charges his zamindari of Y with an annuity of 1,000 rupees to C during his life, and subject tothis charge he bequeaths the zamindari to D. Each of these bequests is specific.

(vi) A bequeaths a sum of money--

to buy a house in Calcutta for B:

to buy an estate in zila Faridpur for B:

to buy a diamond ring for B:

to buy a horse for B:

to be invested in shares in the Imperial Bank of India for B:

to be invested in Government securities for B.

A bequeaths to B--

"a diamond ring":

a horse--:

"10,000 rupees worth of Government securities":

"an annuity of 500 rupees":

"2,000 rupees to be paid in cash":

"so much money as will produce 5,000 rupees four per cent. Government securities."

These bequests are not specific.

(vii) A, having property in England and property in India, bequeaths a legacy to B, and directs that it shall bepaid out of the property which he may leave in India. He also bequeaths a legacy to C, and directs that it shall bepaid out of property which he may leave in England. No one of these legacies is specific.

Where acertain sum is bequeathed, the legacy is not specific merely because the stock, funds or securities inwhich it is invested are described in the will.

Illustration

A bequeaths to B--

"10,000 rupees of my funded property":

"10,000 rupees of my property now invested in shares of the East Indian Railway Company":

"10,000 rupees, at present secured by mortgage of Rampur factory",

No one of these legacies is specific.

Where a bequest is made in general terms of a certain amount of any kind of stock, thelegacy is not specific merely because the testator was, at the date of his will, possessed of stock of thespecified kind, to an equal or greater amount than the amount bequeathed.

Illustration

A bequeaths to B 5,000 rupees five per cent. Government securities. A had at the .date of the will five per cent.Government securities for 5,000 rupees. The legacy is not specific.

A money legacy is not specific merely because the will directs its payment to be postponed untilsome part of the property of the testator has been reduced to a certain form, or remitted to a certain place.

Illustration

A bequeaths to B 10,000 rupees and directs that this legacy shall be paid as soon as As property in India shallbe realised in England. The legacy is not specific.

Where a will contains abequest of the residue of the testator's property along with an enumeration of some items of property notpreviously bequeathed, the articles enumerated shall not be deemed to be specifically bequeathed.

Where property isspecifically bequeathed to two or more persons in succession, it shall be retained in the form in which thetestator left it, although it may be of such a nature that its value is continually decreasing.

Illustrations

(i) A, having lease of a house for a term of years, fifteen of which were unexpired at the time of his death, hasbequeathed 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 Blives for fifteen years, C can take nothing under the bequest.

(ii) A, having an annuity during the life of B, bequeaths it to C, for his life, and, after C's death, to D. C is toenjoy the annuity as A left it, although, if B dies before D, D can take nothing under the bequest.

Where property comprised in a bequest to two or more persons in succession is notspecifically bequeathed, it shall, in the absence of any direction to the contrary, be sold, and the proceedsof the sale shall be invested in such securities as the High Court may by any general rule authorise ordirect, and the fund thus constituted shall be enjoyed by the successive legatees according to the terms ofthe will.

Illustration

A, having a lease for a term of years, bequeaths all his property to B for life, and, after B's death to C. The leasemust be sold, the proceeds invested as stated in this section and the annual income arising from the fund is to be paidto B for life. At B's death the capital of the fund is to be paid to C.

If there is a deficiency of assets to pay legacies, a specific legacy is not liable to abate with thegeneral legacies.

Where a testator bequeaths a certain sum of money, or acertain quantity of any other commodity, and refers to a particular fund or stock so as to constitute thesame the primary fund or stock out of which payment is to be made, the legacy is said to bedemonstrative.

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.

Illustrations

(i) A bequeaths to B 1,000 rupees, being part of a debt due to him from W. He also bequeaths to C 1,000 rupeesto be paid out of the debt due to him from W. The legacy to B is specific, the legacy to C is demonstrative.

(ii) A bequeaths to B--

"ten bushels of the corn which shall grow in my field of Green Acre":

"80 chests of the indigo which shall be made at my factory of Rampur":

"10,000 rupees out of my five per cent. promissory notes of the Central Government":

"An annuity of 500 rupees from my funded property":

"1,000 rupees out of the sum of 2,000 rupees due to me by C":

An annuity, and directs it to be paid "out of the rents arising from my taluk of Ramnagar".

(iii) A bequeaths to B--

"10,000 rupees out of my estate at Ramnagar," or charges it on his estate at Ramnagar:

"10,000 rupees, being my share of the capital embarked in a certain business."

Each of these bequests is demonstrative.

Where a portion of a fund is specifically bequeathed and a legacy is directed to be paid out ofthe same fund, the portion specifically bequeathed shall first be paid to the legatee, and the demonstrativelegacy shall be paid out of the residue of the fund and, so far as the residue shall be deficient, out of thegeneral assets of the testator.

Illustration

A bequeaths to B 1,000 rupees, being part of a debt due to him from W. He also bequeaths to C 1,000 rupees tobe paid out of the debt due to him from W. The debt due to A from W is only 1,500 rupees; of these 1,500 rupees,1,000 rupees belong to B. and 500 rupees are to be paid to C. C is also to receive 500 rupees out of the general assetsof the testator.

If anything which has been specifically bequeathed does not belong tothe 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 theoperation of the will.

Illustrations

(i) A bequeaths to B--

"the diamond ring presented to me by C":

"my gold chain":

"a certain bale of wool":

"a certain piece of cloth":

"all my household goods which shall be in or about my dwelling-house in M. Street in Calcutta, at the timeof my death."

A in his life time,--

sells or gives away the ring:

converts the chain into a cup:

converts the wool into cloth:

makes the cloth into a garment:

takes another house into which he removes all his goods.

Each of these legacies is adeemed.

(ii) A bequeaths to B--

"the sum of 1,000 rupees, in a certain chest":

"all the horses in my stable".

At the death of A, no money is found in the chest, and no horses in the stable. The legacies are adeemed.

(iii) A bequeaths to B certain bales of goods. A takes the goods with him on a voyage. The ship and goods arelost at sea, and A is drowned. The legacy is adeemed.

A demonstrative legacy is not adeemed by reasonthat the property on which it is charged by the will does not exist at the time of the death of the testator, orhas been converted into property of a different kind, but it shall in such case be paid out of the generalassets of the testator.

Where thething specifically bequeathed is the right to receive something of value from a third party, and the testatorhimself receives it, the bequest is adeemed.

Illustrations

(i) A bequeaths to B--

"the debt which C owes me":

"2,000 rupees which I have in the hands of D":

"the money due to me on the bond of E":

"my mortgage on the Rampur factory",

All these debts are extinguished in A's lifetime, some with and some without his consent. All the legacies areadeemed.

(ii) A bequeaths to B his interest in certain policies of life assurance. A in his lifetime receives the amount of thepolicies. The legacy is adeemed.

The receipt by the testator of a part of an entire thing specifically bequeathed shall operate as anademption 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 theone-half of the debt. The legacy is revoked by ademption, so far as regards the 5,000 rupees received by A.

If a portion of an entire fund or stock is specifically bequeathed, thereceipt by the testator of a portion of the fund or stock shall operate as an ademption only to the extent ofthe amount so received; and the residue of the fund or stock shall be applicable to the discharge of thespecific legacy.

Illustration

A bequeaths to B one-half of the sum of 10,000 rupees due to him from W. A in his lifetime receives 6,000rupees, 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 Bunder the specific bequest.

Where a portion of a fund is specifically bequeathed to one legatee,and a legacy charged on the same fund is bequeathed to another legatee, then, if the testator receives aportion of that fund, and the remainder of the fund is insufficient to pay both the specific and thedemonstrative legacy, the specific legacy shall be paid first, and the residue (if any) of the fund shall beapplied so far as it will extend in payment of the demonstrative legacy, and the rest of the demonstrativelegacy shall be paid out of the general assets of the testator.

Illustration

A bequeaths to B 1,000 rupees, part of the debt of 2,000 rupees due to him from W. He also bequeaths to C1,000 rupees to be paid out of the debt due to him from W. A afterwards receives 1[500] rupees, part of that debt,and dies leaving only 1,500 rupees due to him from W. Of these 1,500 rupees, 1,000 rupees belong to B, and 500rupees are to be paid to C. C is also to receive 500 rupees out of the general assets of the testator.

1. Subs. by Act 10 of 1927, s. 2 and the First Schedule, for "5,000".

Wherestock 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.

Where stock which has been specifically bequeathed exists only in part at the testator's death, thelegacy 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 51/2 per cent. loan of the Central Government. A sells one-half of his10,000 rupees in the loan in question. One-half of the legacy is adeemed.

A specific bequest of goods under a description connecting them with a certainplace 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

(i) A bequeaths to B "all my households goods which shall be in or about my dwelling-house in Calcutta at thetime of my death". The goods are removed from the house to save them from fire. A dies before they arc broughtback.

(ii) A bequeaths to B "all my household goods which shall be in or about my dwelling-house in Calcutta at thetime of my death". During A's absence upon a journey, the whole of the goods are removed from the house. A dieswithout having sanctioned their removal.

Neither of these legacies is adeemed.

The removal of thething bequeathed from the place in which it is stated in the will to be situated does not constitute anademption, where the place is only referred to in order to complete the description of what the testatormeant to bequeath.

Illustrations

(i) A bequeaths to B "all the bills, bonds and other securities for money belonging to me now lying in mylodgings in Calcutta". At the time of his death these effects had been removed from his lodgings in Calcutta.

(ii) A bequeaths to B all his furniture then in his house in Calcutta. The testator has a house at Calcutta andanother at Chinsurah, in which he lives alternately, being possessed of one set of furniture only which he removeswith himself to each house. At the time of his death the furniture is in the house at Chinsurah.

(iii) A bequeaths to B all his goods on board a certain ship then lying in the river Hughli. The goods areremoved 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.

Where the thing bequeathed is not the right toreceive something of value from a third person, but the money or other commodity which may bereceived from the third person by the testator himself or by his representatives, the receipt of such sum ofmoney or other commodity by the testator shall not constitute an ademption; but if he mixes it up with thegeneral 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.

Where a thing specifically bequeathed undergoes a change between the date of thewill and the testator's death, and the change takes place by operation of law, or in the course of executionof the provisions of any legal instrument under which the thing bequeathed was held, the legacy is notadeemed by reason of such change.

Illustrations

A bequeaths to B "all the money which I have in the 51/2 per cent. loan of the. Central Government". Thesecurities for the 51/2 per cent. loan are converted during A's lifetime into 5 per cent. stock.

A bequeaths to B the sum of 2,000 f invested in Consols in the names of trustees for A. The sum of 2,000transferred 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 powerunder his marriage settlement to dispose of by will. Afterwards, in A's lifetime, the hind is converted into Consolsby virtue of an authority contained in the settlement.

No one of these legacies has been adeemed.

Where a thing specifically bequeathedundergoes a change between the date of the will and the testator's death, and the change takes placewithout the knowledge or sanction of the testator, the legacy is not adeemed.

Illustration

A bequeaths to B "all my 3 per cent. Consols". The Consols are, without A's knowledge, sold by hisagent, and the proceeds converted into East India Stock. This legacy is not adeemed.

Wherestock 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.

Where stock specifically bequeathed is sold, and an equal quantity of the same stock is afterwardspurchased and belongs to the testator at his death, the legacy is not adeemed.

(1) Where property specificallybequeathed is subject at the death of the testator to any pledge, lien or incumbrance created by the testatorhimself or by any person under whom he claims, then, unless a contrary intention appears by the will, thelegatee, if he accepts the bequest, shall accept it subject to such pledge or incumbrance, and shall (asbetween himself and the testator's estate) be liable to make good the amount of such pledge orincumbrance,

(2) A contrary intention shall not be inferred from any direction which the will may contain for thepayment of the testator's debts generally.

Explanation.--A periodical payment in the nature of land-revenue or in the nature of rent is not suchan incumbrance as is contemplated by this section.

Illustrations

A bequeaths to B the diamond ring given him by C. At A's death the ring is held in pawn by D to whom it hasbeen pledged by A. It is the duty of A's executors, if the state of the testator's assets will allow them, to allow B toredeem the ring.

A bequeaths to B a zamindari which at A's death is subject to a mortgage for 10,000 rupees; and the whole ofthe principal sum, together with interest to the amount of 1,000 rupees, is due at A's death. B, if he accepts thebequest, accepts it subject to this charge, and is liable, as between himself and A's estate, to pay the sum of 11,000rupees thus due.

Whereanything is to be done to complete the testator's title to the thing bequeathed, it is to be done at the cost ofthe testator's estate.

Illustrations

A, having contracted in general terms for the purchase of a piece of land at a certain price, bequeaths to B, anddies before he has paid the purchase-money. The purchase-money must be made good out of A's assets.

A, having contracted for the purchase of a piece of land for a certain sum of money, one-half of which is to bepaid down and the other half secured by mortgage of the land, bequeaths it to B, and dies before he has paid orsecured any part of the purchase-money. One-half of the purchase-money must be paid out of A's assets

Where there is a bequest of any interest in immovable property in respect of whichpayment in the nature of land-revenue or in the nature of rent has to be made periodically, the estate of thetestator shall (as between such estate and the legatee) make good such payments or a proportion of them,as the case may be, up to the day of his death.

Illustration

A bequeaths to B a house, in respect of which 365 rupees are payable annually by way of rent. A pays his rentat the usual time, and dies 25 days after. A's estate will make good 25 rupees in respect of the rent.

In the absence of anydirection in the will, where there is a specific bequest of stock in a joint-stock company, if any call orother payment is due from the testator at the time of his death in respect of the stock, such call or paymentshall, as between the testator's estate and the legatee, be borne by the estate; but, if any call or otherpayment becomes due in respect of such stock after the testator's death, the same shall, as between thetestator's estate and the legatee, be borne by the legatee, if he accepts the bequest.

Illustrations

A bequeaths to B his shares in a certain railway. At A's death there was due from him the sum of 100 rupees inrespect of each share, being the amount of a call which had been duly made, and the sum of five rupees in respect ofeach share, being the amount of interest which had accrued due in respect of the call. These payments must be borneby A's estate.

A has agreed to take 50 shares in an intended joint-stock company, and has contracted to pay up 100 rupees inrespect of each share, which sum must be paid before his title to the shares can be completed. A bequeaths theseshares to B. The estate of A must make good the payments which were necessary to complete A's title.

(iii) A bequeaths to B his shares in a certain railway. B accepts the legacy. After A's death, a call is made inrespect of the shares. B must pay the call.

(iv) A bequeaths to B his shares in a joint-stock company. B accepts the bequest. Afterwards the affairs of thecompany are wound up, and each shareholder is called upon for contribution. The amount of the contribution mustbe borne by the legatee.

(v) A is the owner of ten shares in a railway company. At a meeting held during his lifetime a call is made offifty rupees per share, payable by three instalments. A bequeaths his shares to B, and dies between the day fixed forthe payment of the first and the day fixed for the payment of the second instalment, and without having paid the firstinstalment. A's estate must pay the first instalment, and B, if he accepts the legacy, must pay the remaininginstalments.

If there is a bequest of something described ingeneral terms, the executor must purchase for the legatee what may reasonably be considered to answerthe description.

Illustrations

(i) A bequeaths to B a pair of carriage-horses or a diamond ring. The executor must provide the legatee withsuch articles if the state of the assets will allow it.

(ii) A bequeaths to B "my pair of carriage-horses". A had no carriage horses at the time of his death. The legacyfails.

Where the interest or produce of a fund isbequeathed to any person, and the will affords no indication of an intention that the enjoyment of thebequest should be of limited duration, the principal, as well as the interest, shall belong to the legatee.

Illustrations

(i) A bequeaths to B the interest of his 5 per cent. promissory notes of the Central Government. There is noother clause in the will affecting those securities. B is entitled to A's 5 per cent. promissory notes of the CentralGovernment.

(ii) A bequeaths the interest of his 51/2 per cent. promissory notes of the Central Government to B for his life,and after his death to C. B is entitled to the interest of the notes during his life, and C is entitled to the notes upon B'sdeath.

(iii) A bequeaths to B the rents of his lands at X. B is entitled to the lands.

Where an annuity is created by will, the legatee is entitled to receive it for his life only, unless a contraryintention appears by the will, notwithstanding that the annuity is directed to be paid out of the propertygenerally, or that a sum of money is bequeathed to be invested in the purchase of it.

Illustrations

(i) A bequeaths to B 500 rupees a year. B is entitled during his life to receive the annual sum of 500 rupees.

(ii) A bequeaths to B the sum of 500 rupees monthly. B is entitled during his life to receive the sum of 500rupees every month.

(iii) A bequeaths an annuity of 500 rupees to B for life, and on B's death to C. B is entitled to an annuity of 500rupees during his life. C, if he survives B, is entitled to an annuity of 500 rupees from B's death until his own death.

Where the will directs that an annuity shall be provided for any person out of the proceeds of property, orout of property generally, or where money is bequeathed to be invested in the purchase of any annuity forany person, on the testator's death, the legacy vests in interest in the legatee, and he is entitled at hisoption to have an annuity purchased for him or to receive the money appropriated for that purpose by thewill.

Illustrations

(i) A by his will directs that his executors shall, out of his property, purchase an annuity of 1,000 rupees for B.B is entitled at his option to have an annuity of 1,000 rupees for his life purchased for him or to receive such a sumas will be sufficient for the purchase of such an annuity.

(ii) A bequeaths a fund to B for his life, and directs that after B's death, it shall be laid out in the purchase of anannuity for C. B and C survive the testator. C dies in B'S lifetime. On B's death the, fund belongs to therepresentative of C.

Where an annuity is bequeathed, but the assets of the testator are notsufficient to pay all the legacies given by the will, the annuity shall abate in the same proportion as theother pecuniary legacies given by the will.

Where there isa gift of an annuity and a residuary gift, the whole of the annuity is to be satisfied before any part of theresidue is paid to the residuary legatee, and, if necessary, the capital of the testator's estate shall be appliedfor that purpose.

Where a debtor bequeaths a legacy tohis creditor, and it does not appear from the will that the legacy is meant as a satisfaction of the debt, thecreditor shall be entitled to the legacy, as well as to the amount of the debt.

Where a parent, who is underobligation by contract to provide a portion for a child, fails to do so, and afterwards bequeaths a legacy tothe child, and does not intimate by his will that the legacy is meant as a satisfaction of the portion, thechild shall be entitled to receive -the legacy, as well as the portion.

Illustration

A, by articles entered into in contemplation of his marriage with B covenanted that he would pay to each of thedaughters of the intended marriage a portion of 20,000 rupees on her marriage. This covenant having been broken.A bequeaths 20,000 rupees to each of the married daughters of himself and B. The legatees are entitled to the benefitof this bequest in addition to their portions.

No bequest shall be wholly or partiallyadeemed by a subsequent provision made by settlement or otherwise for the legatee.

Illustrations

(i) A bequeaths 20,000 rupees to his son B. He afterwards gives to B the sum of 20,000 rupees. The legacy isnot thereby adeemed.

(ii) A bequeaths 40,000 rupees to B, his orphan niece whom he had brought up from her infancy. Afterwards,on the occasion of B's marriage, A settles upon her the sum of 30,000 rupees. The legacy is not thereby diminished.

Where a person, by his will, professes todispose of some thing which he has no right to dispose of, the person to whom the thing belongs shallelect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up anybenefits which may have been provided for him by the will.

An interest relinquished in the circumstancesstated in section 180 shall devolve as if it had not been disposed of by the will in favour of the legatee,subject, nevertheless, to the charge of making good to the disappointed legatee the amount or value of thegift attempted to be given to him by the will.

The provisions of sections 180 and 181apply whether the testator does or does not believe that which he professes to dispose of by his will to behis own.

Illustrations

(i) The farm of Sultanpur was the property of C. A bequeathed it to B, giving a legacy of 1,000 rupees to C. Chas elected to retain his farm of Sultanpur, which is worth 800 rupees. C forfeits his legacy of 1,000 rupees, ofwhich 800 rupees goes to B, and the remaining 200 rupees falls into the residuary bequest, or devolves according tothe rules of intestate succession, as the case may be.

(ii) A bequeaths an estate to B in case B's elder brother (who is married and has children) shall leave no issueliving at his death. A also bequeaths to C a jewel, which belongs to B. B must elect to give up the jewel or to losethe estate.

(iii) A bequeaths to B 1,000 rupees, and to C an estate which will, under a settlement, belong to B if his elderbrother (who is married and has children) shall leave no issue living at his death. B must elect to give up the estateor to lose the legacy.

(iv) A, a person of the age of 18, domiciled in 1[India] but owning real property in England, to which C is heir atlaw, bequeaths a legacy to C and, subject thereto, devises and bequeaths to B all my property whatsoever andwheresoever, and dies under 21. The real property in England does not pass by the will. C may claim his legacywithout giving up the real property in England.

1. Subs. by Act 3 of 1951, s. 3 and the Schedule, for "the States".

A bequest for a person'sbenefit is, for the purpose of election, the same thing as a bequest made to himself.

Illustration

The farm of Sultanpur Khurd being the property of B, A bequeathed it to C: and bequeathed another farm calledSultanpur Buzurg to his own executors with a direction that it should be sold and the proceeds applied in payment ofB's debts. B must elect whether he will abide by the will, or keep his farm of Sultanpur Khurd in opposition to it.

A person taking .no benefit directlyunder a will, but deriving a benefit under it indirectly, is not put to his election.

Illustration

The lands of Sultanpur are settled upon C for life, and after his death upon D, his only child. A bequeaths thelands of Sultanpur to B, and 1,000 rupees to C. C dies intestate shortly after the testator, and without having madeany election. D takes out administration to C, and as administrator elects on behalf of C's estate to take under thewill. In that capacity he receives the legacy of 1,000 rupees and accounts to B for the rents of the lands of Sultanpurwhich accrued after the death of the testator and before the death of C. In his individual character he ratains thelands of Sultanpur in opposition to the will.

A person who in his individual capacity takes a benefit under a will may, in anothercharacter, elect to take in opposition to the will.

Illustration

The estate of Sultanpur is settled upon A for life, and after his death, upon B. A leaves the estate of Sultanpur toD, and 2,000 rupees to B, and 1,000 rupees to C, who is B's only child. B dies intestate, shortly after the testator,without having made an election. C takes out administration to B, and as administrator elects to keep the estate ofSultanpur in opposition to the will, and to relinquish the legacy of 2,000 rupees. C may do this, and yet claim hislegacy of 1,000 rupees under the will.

Notwithstanding anything contained in sections180 to 185, where a particular gift is expressed in the will to be in lieu of something belonging to thelegatee, which is also in terms disposed of by the will, then, if the legatee claims that thing, he mustrelinquish the particular gift, but he is not bound to relinquish any other benefit given to him by the will.

Illustration

Under A's marriage-settlement his wife is entitled, if she survives him, to the enjoyment of the estate ofSultanpur during her life. A by his will bequeaths to his wife an annuity of 200 rupees during her life, in lieu of herinterest in the estate of Sultanpur, which estate he bequeaths to his son. He also gives his wife a legacy of 1,000rupees. The widow elects to take what she is entitled to under the settlement. She is bound to relinquish the annuitybut not the legacy of 1,000 rupees.

Acceptance of a benefit given by a will constitutes an election by the legatee to take under the will, if hehad knowledge of his right to elect and of those circumstances which would influence the judgment of areasonable man in making an election, or if he waives inquiry into the circumstances.

Illustrations

(i) A is owner of an estate called Sultanpur Khurd, and has a life interest in anotuer estate called SultanpurBuzurg to which upon his death his son B will be absolutely entitled. The will of A gives the estate of SultanpurKhurd to B, and the estate of Sultanpur Buzurg to C. B, in ignorance of his own right to the estate of. SultanpurBuzurg, allows C to take possession of it, and enters into possession of the estate of Sultanpur Khurd. B has notconfirmed the bequest of Sultanpur Buzurg to C.

(ii) B, the eldest son of A, is the possessor of an estate called Sultanpur. A bequeaths Sultanpur to C, and to Bthe residue of A's property. B having been informed by A's executors that the residue will amount to 5,000 rupees,allows C to take possession of Sultanpur. He afterwards discovers that the residue does not amount to more than 500rupees. B has not confirmed the bequest of the estate of Sultanpur to C.

(1) Suchknowledge or waiver of inquiry shall, in the absence of evidence to the contrary, be presumed if thelegatee has enjoyed for two years the benefits provided for him by the will without doing any act toexpress dissent.

(2) Such knowledge or. waiver of inquiry may be inferred from any act of the legatee which renders itimpossible to place the persons interested in the subject-matter of the bequest in the same condition as ifsuch act had not been done.

Illustration

A bequeaths to B an estate to which C is entitled, and to C a coal-mine. C takes possession of the mine andexhausts it. He has thereby confirmed the bequest of the estate to B.

If the legatee does not,within one year after the death of the testator, signify to the testator's representatives his intention toconfirm or to dissent from the will, the representatives shall, upon the expiration of that period, requirehim to make his election; and; if he does not comply with such requisition within a reasonable time afterhe has received it, he shall be deemed to have elected to confirm the will.

In case of disability the election shall bepostponed until the disability ceases, or until the election is made by some competent authority.

(1) A man may dispose, bygift made in contemplation of death, of any moveable property which he could dispose of by will.

(2) A gift is said to be made in contemplation of death where a man, who is ill and expects to dieshortly of his illness, delivers, to another the possession: of any moveable property to keep as a gift incase the donor shall die of that illness.

(3) Such a gift may be resumed by the giver; and shall not take effect if he recovers from the illnessduring which it was made; nor if he survives the person to whom it was made.

Illustrations

(i) A, being ill, and in expectation of death, delivers to B, to be retained by him in case of A's death,--

a watch:

a bond granted by C to A:

a bank-note:

a promissory note of the Central Government endorsed in blank:

a bill of exchange endorsed in blank:

certain mortgage-deeds.

A dies of the illness during which he delivered these articles.

B is entitled to--

the watch:

the debt secured by C's bond:

the bank-note:

the promissory note of the Central Government:

the bill of exchange:

the money secured by the mortgage-deeds.

(ii) A, being ill, and in expectation of death, delivers to B the key of a trunk or the key of a warehouse in whichgoods of bulk belonging to A are deposited, with the intention of giving him the control over the contents of thetrunk, or over the deposited goods, and desires him to keep them in case of A's death. A dies of the illness duringwhich he delivered these articles. B is entitled to the trunk and its contents or to A's goods of bulk in the warehouse.

(iii) A, being ill, and in expectation of death, puts aside certain articles in separate parcels and marks upon theparcels respectively the names of B and C. The parcels are not delivered during the life of A. A, dies of the illnessduring which he set aside the parcels. B and C are not entitled to the contents of the parcels.

(1) If any person dies leaving property, moveable or immoveable, any personclaiming a right by succession thereto, or to any portion thereof, may make application to the DistrictJudge of the district where any part of the property is found or situate for relief, either after actualpossession has been taken by another person, or when forcible means of seizing possession areapprehended.

(2) Any agent, relative or near friends, or the Court of Wards in cases within their cognizance, may,in the event of any minor, or any disqualified or absent person being entitled by succession to suchproperty as aforesaid, make the like application for relief.

The District Judge to whom such application is made shall, in thefirst place, examine the applicant on oath, and may make such further inquiry, if any, as he thinksnecessary as to whether there is sufficient ground for believing that the party in possession or takingforcible means for seizing possession has no lawful title, and that the applicant, or the person on whosebehalf he applies is really entitled and is likely to be materially prejudiced if left to the ordinary remedy ofa suit, and that the application is made bona fide.

If the District Judge is satisfied that there is sufficient ground for believing asaforesaid but not otherwise, he shall summon the party complained of, and give notice of vacant ordisturbed possession by publication, and, after the expiration of a reasonable time, shall determinesummarily the right to possession (subject to a suit as hereinafter provided) and shall deliver possessionaccordingly.

Provided that the Judge shall have the power to appoint an officer who shall take an inventory ofeffects, and seal or otherwise secure the same, upon being applied to for the purpose, without delay,whether he shall have concluded the inquiry necessary for summoning the party complained of or not.

If it further appears uponsuch inquiry as aforesaid that danger is to be apprehended of the misappropriation or waste of theproperty before the summary proceeding can be determined, and that the delay in obtaining security fromthe party in possession or the insufficiency thereof is likely to expose the party out of possession toconsiderable risk, provided he is the lawful owner, the District Judge may appoint one or more curatorswhose authority shall continue according to the terms of his or their respective appointment, and in nocase beyond the determination of the summary proceeding and the confirmation or delivery of possessionin the consequence thereof:

Provided that, in the case of land, the Judge may delegate to the Collector, or to any officersubordinate to the Collector, the powers of a curator:

Provided, further, that every appointment of a curator in respect of any property shall be dulypublished.

The District Judge may authorise the curator to takepossession of the property either generally, or until security is given by the party in possession, or untilinventories of the property have been made, or for any other purpose necessary for securing the propertyfrom misappropriation or waste by the party in possession:

Provided that it shall be in the discretion of the Judge to allow the party in possession to continue insuch possession on giving security or not, and any continuance in possession shall be subject to suchorders as the Judge may issue touching inventories, or the securing of deeds or other effects.

(1) Where a certificate has beengranted under Part X or under the Seccession Certificate Act, 18891(7 of 1889), or a grant of probate orletters of administration has been made, a curator appointed under this Part shall not exercise anyauthority lawfully belonging to the holder of the certificate or to the executor or administrator.

(2) Payment of debts, etc., to curator.--All persons who have paid debts or rents to a curatorauthorised by a Court to receive them shall be indemnified, and the curator shall be responsible for thepayment thereof to the person who has obtained the certificate, probate or letters of administration, as thecase may be.

1. Rep. partly by Act 39 of 1925, and finally by Act 1 of 1938.

(1) The District Judge shall takefrom the curator security for the faithful discharge of his trust, and for rendering, satisfactory accounts ofthe same as hereinafter provided, and may authorise him to receive out of the property such remuneration,in no case exceeding five per centum on the moveable property and on the annual profits of theimmoveable property, as the District Judge thinks reasonable.

(2) All surplus money realized by the curator shall be paid into Court, and invested in publicsecurities for the benefit of the persons entitled thereto upon adjudication of the summary proceeding.

(3) Security shall be required from the curator with all reasonable despatch, and where it ispracticable, shall be taken generally to answer all cases for which the person may be afterwards appointedcurator; but no delay in the taking of security shall prevent the Judge from immediately investing thecurator with the powers of his office.

(1) Where the estate ofthe deceased person consists wholly or in part of land paying revenue to Government, in all mattersregarding the propriety of summoning the party in possession, of appointing a curator, or of nominatingindividuals to that appointment, the District Judge shall demand a report from the Collector, and theCollector shall thereupon furnish the same:

Provided that in cases of urgency the Judge may proceed, in the first instance, without such report.

(2) The Judge shall not be obliged to act in conformity with any such report, but, in case of his actingotherwise than according to such report, he shall immediately forward a statement of his reasons to theHigh Court, and the High Court, if it is dissatisfied with such reasons, shall direct the Judge to proceedconformably to the report of the Collector.

The curator shall be subject to all orders of the District Judgeregarding the institution or the defence of suits, and all suits may be instituted or defended in the name ofthe curator on behalf of the estate:

Provided that an express authority shall be requisite in the order of the curator's appointment for thecollection of debts or rents; but such express authority shall enable the curator to give a full acquittancefor any sums of money received by virtue thereof.

Pending the custody of theproperty by the curator, the District Judge may make such allowances to parties having a prima facie rightthereto as upon a summary investigation of the right and circumstances of the parties interested heconsiders necessary, and may, at his discretion, take security for the repayment thereof with interest, inthe event of the party being found, upon the adjudication of the summary proceeding, not to be entitledthereto.

The curator shall file monthly accounts in abstract, and shall,on the expiry of each period of three months, if his administration lasts so long, and, upon giving up thepossession of the property, file a detailed account of his administration to the satisfaction of the DistrictJudge.

(1) The accounts ofthe curator shall be open to the inspection of all parties interested; and it shall be competent for any suchinterested party to appoint a separate person to keep a duplicate account of all receipts and payments bythe curator.

(2) 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 bepunishable with fine not exceeding one thousand rupees for every such default.

If the Judge of any district hasappointed a curator; in respect to the whole of the property of a deceased person, such appointment shallpreclude the Judge of any other district within the same State from appointing any other curator, but theappointment of a curator in respect of a portion of the property of the deceased shall not preclude theappointment within the same State of another curator in respect of the residue or any portion thereof

Provided that no Judge shall appoint curator or entertain a summary proceeding in respect of propertywhich is the subject of a summary proceeding previously instituted under this Part before another Judge:

Provided, further, that if two or more curators are appointed by different Judges for several parts of anestate, the High Court may make such order as it thinks fit for the appointment of one curator of thewhole property.

An application under this Part to the DistrictJudge must be made within six months of the death of the proprietor whose property is claimed by right insuccession.

Nothing in this Part shall be deemed to authorise the contravention of any public act ofsettlement or of any legal directions given by a deceased proprietor of any property for the possession ofhis property after his decease in the event of minority or otherwise, and, in every such case, as soon as theJudge having jurisdiction over the property of a deceased person is satisfied of the existence of suchdirections, he shall give effect thereto.

Nothing in this Part shall be deemed to authorise any disturbance of the possession of aCourt of Wards of any property; and in case a minor, or other disqualified person whose property issubject to the Court of Wards, is the party on whose behalf application is made under this Part, theDistrict Judge, if he determines to summon the party in possession and to appoint a curator, shall investthe Court of Wards with the curatorship of the estate pending the proceeding without taking security asaforesaid; and if the minor or other disqualified person, upon the adjudication of the summary proceeding,appears to be entitled to the property, possession shall be delivered to the Court of Wards.

Nothing contained in this Part shall be any impediment to thebringing of a suit either by the party whose application may have been rejected before or after thesummoning of the party in possession, or by the party who may have been evicted from the possessionunder this Part.

The decision of a District Judge in a summaryproceeding under this Part shall have no other effect than that of settling the actual possession; but for thispurpose it shall be final, and shall not be subject to any appeal or review.

The State Government may appoint public curators for anydistrict or number of districts; and the District Judge having jurisdiction shall nominate such publiccurators in all cases where the choice of a curator is left discretionary with him under this Part.

(1) The executor oradministrator, as the case may be, of a deceased person is his legal representative for all purposes, and allthe property of the deceased person vests in- him as such.

(2) When the deceased was a Hindu, Muhammadan, Budhist, Sikh, 1[Jaina or Parsi] or an exemptedperson, nothing herein contained shall vest in an executor or administrator any property of the deceasedperson which would otherwise have passed by survivorship to some other person.

1. Subs. by Act 16 of 1962, s. 2, for "or Jaina".

(1) No right to any part of the property of a person who hasdied intestate can be established in any Court of Justice, unless letters of administration have first beengranted by a Court of competent jurisdiction.

(2) This section shall not apply in the case of the intestacy of a Hindu, Muhammadan, Buddhist, Sikh,Jaina, 1[Indian Christian or Parsi].

1. Subs. by s. 3, ibid., for "or Indian Christian".

(1) No right as executor or legatee can beestablished in any Court of Justice, unless a Court of competent jurisdiction in 1[India] has grantedprobate of the will under which the right is claimed, or has granted letters of administration with the willor with a copy of an authenticated copy of the will annexed.

2[(2) This section shall not apply in the case of wills made by Muhammadans 3[or Indian Christians],and shall only apply--

(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of theclasses specified in clauses (a) and (b) of section 57; and

(ii) in the case of wills made by any Parsi dying, after the commencement of the IndianSuccession (Amendment) Act, 1962 (16 of 1962), where such wills are made within the local limitsof the 4[ordinary-original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, andwhere such wills are made outside those limits, in so far as they relate to immovable property situatewithin those limits.]

STATE AMENDMENTS

Karela.--

Amendment of section 213.--In sub-section (2) of section 213 of the Indian Succession Act,1925 (Central Act 39 of 1925), after the word 'Muhammadans', the words 'or Indian Christians' shallbe inserted.

[vide Kerala Act 1 of 1997, sec. 2].

1. Subs. by Act 3 of 1951, s. 3 and the Schedule, for "the States".

2. Subs. by Act 16 of 1962, s. 4, for sub-section (2).

3. Ins. by Act 26 of 2002, s. 3 (w.e.f. 27-5-2002).

4. Subs. by Act 52 of 1964, s. 3 and the Second Schedule, for "ordinary civil jurisdiction".

(1) No Court shall--

(a) pass a decree against a debtor of a deceased person for payment of his debt to a personclaiming on succession to be entitled to the effects of the deceased person or to any part thereof, or

(b) proceed, upon an application of a person claiming to be so entitled, to execute against such adebtor a decree or order for the payment of his debt,

except on the production, by the person so claiming of--

(i) a probate or letters of administration evidencing the grant to him of administration to the estateof the deceased, or

(ii) a certificate granted under section 31 or section 32 of the Administrator General's Act, 1913(3 of 1913), and having the debt mentioned therein, or

(iii) a succession certificate granted under Part X and having the debt specified therein, or

(iv) a certificate granted under the Succession Certificate Act, 18891 (7 of 1889), or

(v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted after the firstday of May, 1889, having the debt specified therein.

(2) The word "debt" in sub-section (1) includes any debt except rent, revenue or profits payable inrespect of land used for agricultural purposes.

1. Rep. partly by Act 39 of 1925, and finally by Act 1 of 1938.

(1) A grant ofprobate or letters of administration in respect of an estate shall be deemed to supersede any certificatepreviously granted under Part X or under the Succession Certificate Act, 18891(7 of 1889) or BombayRegulation No. VIII of 1827, in respect of any debts or securities included in the estate.

(2) When at the time of the grant of the probate or letters any suit or other proceeding instituted by theholder of any such certificate regarding any such debt or security is pending, the person to whom thegrant is made shall, on applying to the Court in which the suit or proceeding is pending, be entitled to takethe place of the holder of the certificate in the suit or proceeding:

Provided that, when any certificate is superseded under this section, all payments made to the holderof such certificate in ignorance of such supersession shall be held good against claims under the probateor letters of administration.

1. Rep. partly by Act 39 of 1925, and finally by Act 1 of 1938.

After anygrant of probate or letters of administration, no other than the person to whom the same may have beengranted shall have power to sue or prosecute any suit, or otherwise act as representative of the deceased,throughout the State in which the same may have been granted, until such probate or letters ofadministration has or have been recalled or revoked.

Save as otherwise provided by this Act or by any other law for the timebeing in force, all grants of probate and letters of administration with the will annexed and theadministration of the assets of the deceased in cases of intestate succession shall be made or carried out,as the case may be, in accordance with the provisions of this Part.

(1) If the deceased has died intestate and was a Hindu,Muhammadan, Buddhist, Sikh or Jaina or an exempted person, administration of his estate may begranted to any person who, according to the rules for the distribution of the estate applicable in the case ofsuch deceased, would be entitled to the whole or any part of such deceased's estate.

(2) When several such persons apply for such administration, it shall be in the discretion of the Courtto grant it to any one or more of them.

(3) When no such person applies, it may be granted to a creditor of the deceased.

If the deceased has died intestate and was not a person belonging to any of the classes referredto in section 218, those who are connected with him, either by marriage or by consanguinity, are entitledto obtain letters of administration of his estate and effects in the order and according to the ruleshereinafter stated, namely:--

(a) If the deceased has left a widow, administration shall be granted to the widow, unless theCourt sees cause to exclude her, either on the ground of some personal disqualification, or becauseshe has no interest in the estate of the deceased.

Illustrations

(i) The widow is a lunatic or has committed adultery or has been barred by her marriage settlement of allinterest in her husband's estate. There is cause for excluding her from the administration.

(ii) The widow has married again since the decease of her husband. This is not good cause for her exclusion.

(b) If the Judge thinks proper, he may associate any person or persons with the widow in theadministration who would be entitled solely to the administration if there were no widow.

(c) If there is no widow, or if the Court sees cause to exclude the widow, it shall commit theadministration to the person or persons who would be beneficially entitled to the estate according tothe rules for the distribution of an intestate's estate:

Provided that, when the mother of the deceased is one of the class of persons so entitled, she shallbe solely entitled to administration.

(d) Those who stand in -equal degree of kindred to the deceased are equally entitled toadministration.

(e) The husband surviving his wife has the same right of administration of her estate as the widowhas in respect of the estate of her husband.

(f) When there is no person connected with the deceased by marriage or consanguinity who isentitled to letters of administration and willing to act, they may be granted to a creditor.

(g) Where the deceased has left property in 1[India], letters of administration shall be grantedaccording to the foregoing rules, notwithstanding that he had his domicile in a country in which the lawrelating to testate and intestate succession differs from the law of [India].

1. Subs. by Act 3 of 1951, s. 3 and Sch., for the States.

Letters of administration entitle the administrator to allrights belonging to the intestate as effectually as if the administration had been granted at the momentafter his death.

Letters of administration do not render valid anyintermediate acts of the administrator tending to the diminution or damage of the intestate's estate.

(1) Probate shall be granted only to an executorappointed by the will.

(2) The appointment may be expressed or by necessary implication.

Illustrations

(i) A wills that C be his executor if B will not. B is appointed executor by implication.

(ii) A gives a legacy to B and several legacies to other persons, among the rest to his daughter-in-law C, andadds "but should the within-named C be not living I do constitute and appoint B my whole and sole executrix". C isappointed executrix by implication.

(iii) A appoints several persons executors of his will and codicils and his nephew residuary legatee, and inanother codicil are these words,-- "I appoint my nephew my residuary legatee to discharge all lawful demandsagainst my will and codicils signed of different dates". The nephew is appointed an executor by implication.

Probate cannot be granted to any person whois a minor or is of unsound mind 1[nor to any association of individuals unless it is a company whichsatisfies the conditions prescribed by rules to be made 2[, by notification in the Official Gazette] by the3[State Government in this behalf.]

1. Added by Act 17 of 1931, s. 2. The words "nor, unless the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or anexempted person, to a married woman without the previous consent of her husband" which originally occurred at the end ofthis section had been omitted by Act 18 of 1927, s. 2.

2. Ins. by Act 20 of 1983, s. 2 and Sch. (w.e.f. 15-3-1984).

3. The words "G.G. in C." have been successively amended by the A.O. 1937 and the A.O. 1950 to read as above.

When severalexecutors are appointed, probate may be granted to them all simultaneously or at different times.

Illustrations

A is an executor of B's will by express appointment and C an executor of it by implication. Probate may begranted to A and C at the same time or to A first and then to C, or to C first and then to A.

(1) If a codicil is discoveredafter the grant of probate, a separate probate of that codicil may be granted to the executor, if it in no wayrepeals the appointment of executors made by the will.

(2) If different executors are appointed by the codicil, the probate of the will shall be revoked, and anew probate granted of the will and the codicil together.

When probate has been granted to severalexecutors, and one of them dies, the entire representation of the testator accrues to the surviving executoror executors.

Probate of a will when granted establishes the will from the death of thetestator, and renders valid all intermediate acts of the executor as such.

When awill has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of theState, whether within or beyond the limits of 1[India], and a properly authenticated copy of the will isproduced, letters of administration may be granted with a copy of such copy annexed.

1. Subs. by A.O. 1950, for "His Majesty's" Domination.

When a person appointed anexecutor has not renounced the executorship, letters of administration shall not be granted to any otherperson until a citation has been issued, calling upon the executor to accept or renounce his executorship:

Provided that, when one or more of several executors have proved a will, the Court may, on the deathof the survivor of those who have proved, grant letters of administration without citing those who havenot proved.

The renunciation may be made orally inthe presence of the Judge, or by a writing signed by the person renouncing, and when made shall precludehim from ever thereafter applying for probate of the will appointing him executor.

If an executorrenounces or fails to accept an executorship within the time limited for the acceptance or refusal thereof,the will may be proved and letters of administration, with a copy of the will annexed, may be granted tothe person who would be entitled to administration in case of intestacy.

When--

(a) the deceased has made a will, but has not appointed an executor, or

(b) the deceased has appointed an executor who is legally incapable or refuses to act, or who hasdied before the testator or before he has proved the will, or

(c) the executor dies after having proved the will, but before he has administered all the estate ofthe deceased,

an universal or a residuary legatee may be admitted to prove the will, and letters of administration withthe will annexed may be granted to him of the whole estate, or of so much thereof as may beunadministered.

When a residuarylegatee who has a beneficial interest survives the testator, but dies before the estate has been fullyadministered, his representative has the same right to administration with the will annexed as suchresiduary legatee.

When there is no executor and no residuary legatee or representative of a residuarylegatee, or he declines or is incapable to act, or cannot be found, the person or persons who would beentitled to the administration of the estate of the deceased if he had died intestate, or any other legateehaving a beneficial interest, or a creditor, may be admitted to prove the will, and letters of administrationmay be granted to him or them accordingly.

Letters of administration with the will annexed shall not be granted to any legatee other than an universalor a residuary legatee, until a citation has been issued and published in the manner hereinafter mentioned,calling on the next-of-kin to accept or refuse letters of administration.

Letters of administration cannot be granted toany person who is a minor or is of unsound mind, 1[nor to any association of individuals unless it is acompany which satisfies the conditions prescribed by rules to be made 2[by notification in the OfficialGazette], by the 3[State Government] in this behalf.]

1. Added by Act 17 of 1931, s. 2. The words nor, unless the deceased was a Hindu, Muhammadan, Buddhist, Sikh, or Jaina oran exempted person, to a married woman without the previous consent of her husband which originally occurred at the end ofthis section had been omitted by Act 18 of 1927, s. 2.

2. Ins. by Act 20 of 1983, s. 2 and Sch. (w.e.f. 15-3-1984).

3. The words "G.G. in C." have been successively amended by the A.O. 1937 and the A.O. 1950 to read as above.

1[236A. Laying of rules before State Legislature. Every rule made by the State Government undersection 223 and section 236 shall be laid, as soon as it is made, before the State Legislature.

1. Ins. by Act 20 of 1983, s. 2 and the Schedule (w.e.f. 15-3-1984).

Errors in names and descriptions, or in setting forththe time and place of the deceaseds death or the purpose in a limited grant, may be rectified by the Courtand the grant of probate or letters of administration may be altered and amended accordingly.

If, after the grant of letters of administration with the will annexed, a codicil is discovered, itmay be added to the grant on due proof and identification, and the grant may be altered and amendedaccordingly.

The grant of probate or letters of administrationmay be revoked or annulled for just cause.

Explanation.-- Just cause shall be deemed to exist where--

(a) the proceedings to obtain the grant were defective in substance; or

(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from theCourt something material to the case; or

(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law tojustify the grant, though such allegation was made in ignorance or inadvertently; or

(d) the grant has become useless and inoperative through circumstances; or

(e) the person to whom the grant was made has wilfully and without reasonable cause omitted toexhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or hasexhibited under that Chapter an inventory or account which is untrue in a material respect.

Illustrations

(i) The Court by which the grant was made had no jurisdiction.

(ii) The grant was made without citing parties who ought to have been iited.

(iii) The will of which probate was obtained was forged or revoked.

(iv) A obtained letters of administration to the estate of B, as his widow, but it has since transpired that she wasnever married to him.

(v) A has taken administration to the estate of B as if he had died intestate, but a will has since been discovered.

(vi) Since probate was granted, a later will has been discovered.

(vii) Since probate was granted, a codicil has been discovered which revokes or adds to the appointment ofexecutors under the will.

(viii) The person to whom probate was, or letters of administration were, granted has subsequently become ofunsound mind.

(1) The DistrictJudge shall have jurisdiction in granting and revoking probates and letters of administration in all caseswithin his district.

(2) Except incrases to which section 57 applies, no Court in any local area beyond the limits of thetowns of Calcutta, Madras and Bombay, 1 shall, where the deceased is a Hindu, Muhammadan,Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters ofadministration until the State Government has, by a notification in the Official Gazette, authorised it so todo.

1. The words "and the province of Burma" omitted by the A.O. 1937.

(1) TheHigh Court may appoint such judicial officers within any district as it thinks fit to act for the DistrictJudge as delegates to grant probate and letters of administration in non-contentious cases, within suchlocal limits as it may prescribe:

Provided that, in the case of High Courts not established by Royal Charter, such appointments shallnot be without the previous sanction of the State Government.

(2) Persons so appointed shall be called "District Delegates".

STATE AMENDMENT

Karnataka

Amendment of Central Act 39 of 1925.--In the Indian Succession Act, 1925 (Central Act 39 of1925) as in force in the State of Karnataka, section 265 shall be omitted.

[Vide Karnataka Act 28 of 1978, s. 4].

The District Judge shallhave the like powers and authority in relation to the granting of probate and letters of administration andall matters connected therewith, as are by law vested in him in relation to any civil suit or proceedingpending in his Court.

(1) The District Judgemay order any person to produce and bring into Court any paper or writing, being or purporting to betestamentary, which may be shown to be in the possession or under the control of such person.

(2) If it is not shown that any such paper or writing is in the possession or under the control of suchperson, but there is reason to believe that he has the knowledge of any such paper or writing, the Courtmay direct such person to attend for the purpose of being examined respecting the same.

(3) Such person shall be bound to answer truly such question as may be put to him by the Court, and,if so ordered, to produce and bring in such paper or writing, and shall be subject to the like punishmentunder the Indian Penal Code (45 of 1860), in case of default in not attending or in not answering suchquestion or not bringing in such paper or writing, as he would have been subject to in case he had been aparty to a suit and had made such default.

(4) The costs of the proceeding shall be in the discretion of the Judge.

Theproceeding of the Court of the District Judge in relation to the granting of probate and letters ofadministration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances ofthe case permit, by the Code of Civil Procedure, 1908 (5 of 1908).

(1) Until probate isgranted of the will of a deceased person, or an administrator of his estate is constituted, the District Judge,within whose jurisdiction any part of the property of the deceased person is situate, is authorised andrequired to interfere for the protection of such property at the instance of any person claiming to beinterested therein, and in all other cases where the Judge considers that the property incurs any risk of lossor damage; and for that purpose, if he thinks fit, to appoint an officer to take and keep possession of theproperty,

(2) This section shall not apply when the deceased' is a Hindu, Muhammadan, Buddhist, Sikh or Jainaor an exempted person, nor shall it apply to any part of the property of an Indian Christian who has diedintestate.

Probate of the will orletters of administration to the estate of a deceased person may be granted by a District Judge under theseal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for thesame that the testator or intestate, as the case may be, at the time of his decease had a fixed place ofabode, or any property, moveable or immoveable, within the jurisdiction of the Ridge.

When the application is made to the Judge of a district in which the deceased had no fixed abode at thetime of his death, it shall be in the discretion of the Judge to refuse the application, if in his judgment itcould be disposed of more justly or conveniently in another district, or, where the application is for lettersof administration, to grant them absolutely, or limited to the property within his own jurisdiction.

Probate and letters ofadministration may, upon application for that purpose to any District Delegate, be granted by him in anycase in which there is no contention, if it appears by petition, verified as hereinafter provided, that thetestator or intestate, as the case may be, at the time of his death had a fixed place of abode within thejurisdiction of such Delegate.

Probate or letters of administrationshall have effect over all the property and estate, moveable or immoveable, of the deceased, throughoutthe State in which the same is or are granted, and shall be conclusive as to the representative title againstall debtors of the deceased, and all persons holding property which belongs to him, and shall afford fullindemnity to all debtors, paying their debts and all persons delivering up such property to the person towhom such probate or letters of administration have been granted:

Provided that probates and letters of administration granted--

(a) by a High Court, or

(b) by a District Judge, where the deceased at the time of his death had a fixed place of abodesituate within the jurisdiction of such Judge, and such Judge certifies that the value of the propertyand estate affected beyond the limits of the State does not exceed ten thousand rupees, shall, unlessotherwise directed by the grant, have like effect throughout 1[the other States 2.]

3[The proviso to this section shall apply in 4[India]5after the separation of Burma and Aden fromIndia to probates and letters of administration granted in Burma and Aden before the date of theseparation, or after that date in proceedings which were pending at that date.]

6[The proviso shall also apply in 4[India] 7 8after the separation of Pakistan from India to probatesand letters of administration granted before the date of the separation, or after that date in procedingspending at that date, in any of the territories which on that date constituted Pakistan.]

1. Subs. by the A.O. 1948, for "the whole of British India" .

2. The words of "India" omitted by the A.O. 1950.

3. Ins. by the A.O. 1937.

4. Subs. by Act 3 of 1951, s. 3 and Sch., for "the States".

5. 1st April, 1937.

6. Added by the A.O. 1948.

7. The words "of India" omitted by Act 42 of 1953, s. 4 and Sch. III.

8. 15th August, 1947.

(1) Where probate or letters of administration has or have been granted by a High Court or District Judgewith the effect referred to in the proviso to section 273, the High Court or District Judge shall send acertificate thereof to the following Courts, namely:-

(a) when the grant has been made by a High Court, to each of the other High Courts;

(b) when the grant has been made by a District Judge, to the High Court to which such DistrictJudge is subordinate and to each of the other High Courts.

(2) Every certificate referred to in sub-section (1) shall be made as nearly as circumstances admit inthe form set forth in Schedule IV, and such certificate shall be filed by the High Court receiving the same.

(3) Where any portion of the assets has been stated by the petitioner, as hereinafter provided insections 276 and 278, to be situate within the jurisdiction of a District Judge in another State, the Courtrequired to send the certificate referred to in sub-section (1) shall send a copy thereof to such DistrictJudge, and such copy shall be filed by the District Judge receiving the same.

The application for probate or letters of administration, if made and verified in the mannerhereinafter provided, shall be conclusive for the purpose of authorising the grant of probate oradministration; and no such grant shall be impeached by reason only that the testator or intestate had nofixed place of abode or no property within the district at the time of his death, unless by a proceeding torevoke the grant if obtained by a fraud upon the Court.

(1) Application for probate or for letters of administration, with the willannexed, shall be made by a petition distinctly written in English or in the language in ordinary use inproceedings before the Court in which the application is made, with the will or, in the cases mentioned insections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating

(a) the time of the testators death,

(b) that the writing annexed is his last will and testament,

(c) that it was duly executed,

(d) the amount of assets which are likely to come to the petitioner's hands, and

(e) when the application is for probate, that the petitioner is the executor named in the will.

(2) In addition to these particulars, the petition shall further state,--

(a) when the application is to the District Judge, that the deceased at the time of his death had afixed place of abode, or had some property, situate within the jusrisdiction of the Judge; and

(b) when the application is to a District Delegate, that the deceased at the time of his death had afixed place of abode within the jurisdiction of such Delegate.

(3) Where the application is to the District Judge and any portion of the assets likely to come to thepetitioner's hands is situate in another State, the petition shall further state the amount of such assets ineach State and the District Judges within whose jurisdiction such assets are situate.

In cases wherein the will, copy or draft, is written in anylanguage other than English or than that in ordinary use in proceedings before the Court, there shall be atranslation thereof annexed to the petition by a translator of the Court, if the language be one for which atranslator is appointed; or, if the will, copy or draft, is in any other language, then by any personcompetent to translate the same, in which case such translation shall be verified by that person in thefollowing manner, namely:--

"I (A.B.) do declare that I read and perfectly understand the language and character of theoriginal, and that the above is a true and accurate translation thereof."

(1) Application for letters of administration shall bemade by petition distinctly written as aforesaid and stating-

(a) the time and place of the deceased's death;

(b) the family or other relatives of the deceased, and their respective residences;

(c) the right in which the petitioner claims;

(d) the amount of assets which are likely to come to the petitioner's hands;

(e) when the application is to the District Judge, that the deceased at the time of his death had afixed place of abode, or had some property, situate within the jurisdiction of the Judge; and

(f) when the application is to a District Delegate, that the deceased at the time of his death had afixed place of abode within the jurisdiction of such Delegate.

(2) Where the application is to the District Judge and any portion of the assets likely to come to thepetitioner's hands is situate in another State, the petition shall further state the amount of such assets ineach State and the District Judges within whose jurisdiction such assets are situate.

(1) Every person applying to any of the Courts mentioned in the proviso to section 273 forprobate of a will or letters of administration of an estate intended to have effect throughout 1[India], shallstate in his petition, in addition to the matters respectively required by section 276 and section 278, that tothe best of his belief no application has been made to any other Court for a probate of the same will or forletters of administration of the same estate, intended to have such effect as last aforesaid,

or, where any such application has been made, the Court to which it was made, the person or persons bywhom it was made and the proceedings (if any) had thereon.

(2) The Court to which any such application is made under the proviso to section 273 may, if it thinksfit, reject the same.

1. Subs. by Act 3 of 1951, s. 3 and the Schedule, for "the States".

The petition for probate or letters ofadministration shall in all cases be subscribed by the petitioner and his pleader, if any, and shall beverified by the petitioner in the following manner, namely:--

"I (A.B.), the petitioner in the above petition, declare that what is stated therein is true to the bestof my information and belief."

Where the application is forprobate, the petition shall also be verified by at least one of the witnesses to the will (when procurable) inthe manner or to the effect following, namely:--

"I (C.D.), one of the witnesses to the last will and testament of the testator mentioned in the abovepetition, declare that I was present and saw the said testator affix his signature (or mark) thereto (orthat the said testator acknowledged the writing annexed to the above petition to be his last will andtestament in my presence)."

If any petition or declarationwhich is hereby required to be verified contains any averment which the person making the verificationknows or believes to be false, such person shall be deemed to have committed an offence under section193 of the Indian Penal Code (45 of 1860).

(1) In all cases the District Judge or District Delegate may, if hethinks proper,--

(a) examine the petitioner in person, upon oath;

(b) require further evidence of the due execution of the will or the right of the petitioner to theletters of administration, as the case may be;

(c) issue citations calling upon all persons claiming to have any interest in the estate of thedeceased to come and see the proceedings before the grant of probate or letters of administration.

(2) The citation shall be fixed up in some conspicuous part of the courthouse, and also in the office ofthe Collector of the district and otherwise published or made known in such manner as the Judge orDistrict Delegate issuing the same may direct.

(3) Where any portion of the assets has been stated by the petitioner to be situate within thejurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy ofthe citation to be sent to such other District Judge, who shall publish the same in the same manner as if itwere a citation issued by himself, and shall certify such publication to the District Judge who issued thecitation.

(1) Caveats against the grant of probateor administration may be lodged with the District Judge or a District Delegate.

(2) Immediately on any caveat being lodged with any District Delegate, he shall send copy thereof tothe District Judge.

(3) Immediately on a caveat being entered with the District Judge, a copy thereof shall be given to theDistrict Delegate, if any, within whose jurisdiction it is alleged the deceased had a fixed place of abode atthe time of his death, and to any other Judge or District Delegate to whom it may appear to the DistrictJudge expedient to transmit the same.

Form of caveat(4) The caveat shall be made as nearly as circumstances admit in the form set forthin Schedule V.

Noproceeding shall be taken on a petition for probate or letters of administration after a caveat against thegrant thereof has been entered with the Judge or District Delegate to whom the application has been madeor notice has been given of its entry with some other Delegate, until after such notice to the person bywhom the same has been entered as the Court may think reasonable.

A District Delegate shallnot grant probate or letters of administration in any case in which there is contention as to the grant, or inwhich it otherwise appears to him that probate or letters of administration ought not to be granted in hisCourt.

Explanation.-- "Contention" means the appearance of any one in person, or by his recognized agent,or by a pleader duly appointee to act on his behalf, to oppose the proceeding.

In every case in which there is no contention, but it appears to the District Delegatedoubtful whether the probate or letters of administration should or should not be granted, or when anyquestion arises in relation to the grant, or application for the grant, of any probate or letters ofadministration, the District Delegate may, if he thinks proper, transmit a statement of the matter inquestion to the District Judge, who may direct the District Delegate to proceed in the matter of theapplication, according to such instructions as to the Judge may seem necessary, or may forbid any furtherproceeding by the District Delegate in relation to the matter of such application, leaving the partyapplying for the grant in question to make application to the Judge.

In every case in which there is contention, or theDistrict Delegate is of opinion that the probate or letters of administration should be refused in his Court,the petition, with any documents which may have been filed therewith, shall be returned to the person bywhom the application was made, in order that the same may be presented to the District Judge, unless theDistrict Delegate thinks it necessary, for the purposes of justice, to impound the same, which he is herebyauthorised to do; and, in that case, the same shall be sent by him to the District Judge.

When it appears to the District Judge or DistrictDelegate that probate of a will should be granted, he shall grant the same under the seal of his Court in theform set forth in Schedule VI.

When it appears to the DistrictJudge or District Delegate that letters of administration to the estate of a person deceased, with or withouta copy of the will annexed, should be granted, he shall grant the same under the seal of his Court in theform set forth in Schedule VII.

(1) Every person to whom any grant of letters of administration, otherthan a grant under section 241, is committed, shall give a bond to the District Judge with one or moresurety or sureties, engaging for the due collection, getting in, and administering the estate of the deceased,which bond shall be in such form as the Judge may, by general or special order, direct.

(2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person--

(a) the exception made by sub-section (1) in respect of a grant under section 241 shall notoperate.

(b) the District Judge may demand a like bond from any person to whom probate is granted.

The Court may, on application made by petition and onbeing satisfied that the engagement of any such bond has not been kept, and upon such terms as tosecurity, or providing that the money received be paid into Court, or otherwise, as the Court may think fit,assign the same to some person, his executors or administrators, who shall thereupon be entitled to sue onthe said bond in his or their own name or names as if the same had been originally given to him or theminstead of to the Judge of the Court, and shall be entitled to recover thereon, as trustees for all personsinterested, the full amount recoverable in respect of any breach thereof,

No probate of a will shall be granted untilafter the expiration of seven clear days, and no letters of administration shall be granted until after theexpiration of fourteen clear days, from the day of the testator or intestate's death.

(1) Every District Judge, or District Delegate, shall file and preserve all original wills, of which probate orletters of administration with the will annexed may be granted by him, among the records of his Court,until some public registry for wills is established.

(2) The State Government shall make regulations for the preservation and inspection of the wills sofiled.

In any case before the District Judge in which there iscontention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to theprovisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or lettersof administration, as the case may be, shall be the plaintiff, and the person who has appeared to opposethe grant shall be the defendant.

(1) When a grant of probate orletters of administration is revoked or annulled under this Act, the person to whom the grant was madeshall forthwith deliver up the probate or letters to the Court which made the grant.

(2) If such person willfully and without reasonable cause omits so to deliver up the probate or letters,he shall be punishable with fine which may extend to one thousand rupees, or with imprisonment for aterm which may extend to three months, or with both.

When agrant of probate or letters of administration is revoked, all payments bona fide made to any executor oradministrator under such grant before the revocation thereof shall, notwithstanding such revocation, be alegal discharge to the person making the same; and the executor or administrator who has acted under anysuch revoked grant may retain and reimburse himself in respect of any payments made by him which theperson to whom probate or letters of administration may afterwards be granted might have lawfully made.

Notwithstanding anything hereinbefore contained,it shall, where the deceased' was a Muhammadan, Buddhist or exempted person, or a Hindu, Sikh or Jainato whom section 57 does not apply, be in the discretion of the Court to make an order refusing, forreasons to be recorded by it in writing, to grant any application for letters of administration made lousierthis Act.

Every order made by a District Judge by virtue of thepowers hereby conferred upon him shall be subject to appeal to the High. Court in accordance with theprovisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals.

(1) The High Court shall have concurrentjurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the DistrictJudge.

(2) Except in cases to which section 57 applies, no High Court, in exercise of the concurrentjurisdiction hereby conferred over any local area beyond the limits of the towns of Calcutta, Madras andBombay 1 shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or anexempted person, receive applications for probate or letters of administration until the State Governmenthas by a notification in the Official Gazette, authorised it so to do.

1. The words "and the province of Burma" omitted by the A.O. 1937.

The High Court may,on application made to it, suspend, remove or discharge any private executor or administrator and providefor the succession of another person to the office of any' such executor or administrator who may cease tohold office, and the vesting in such successor of any property belonging to the estate.

Where probate or letters of administration inrespect of any estate has or have been granted under this Act, the High Court may, on application made toit, give to the executor or administrator any general or special directions in regard to the estate or inregard to the administration thereof.

A person who intermeddles with the estate of the deceased ordoes any other act which belongs to the office of executor, while there is no rightful executor oradministrator in existence, thereby makes himself an executor of his own wrong.

Exceptions.--(1) Intermeddling with the goods of the deceased for the purpose of preserving them orproviding for his funeral or for the immediate necessities of his family or property, does not make anexecutor of his own wrong.

(2) Dealing in the ordinary course of business with goods of the deceased received from another doesnot make an executor of his own wrong.

Illustrations

(i) A uses or gives away or sells some of the goods of the deceased, or takes them to satisfy his own debt orlegacy or receives payment of the debts of the deceased. He is an executor of his own wrong.

(ii) A, having been appointed agent by the deceased in his lifetime to collect his debts and sell his goods,continues to do so after he has become aware of his death. He is an executor of his own wrong in respect of actsdone after he has become aware of the death of the deceased.

(iii) A sues as executor of the deceased, not being such. He is an executor of his own wrong.

When a person has so acted as to become anexecutor of his own wrong, he is answerable to the rightful executor or administrator, or to any creditor orlegatee of the deceased, to the extent of the assets which may have come to his hands after deductingpayments made to the rightful executor or administrator, and payments made in due course ofadministration.

An executor oradministrator has the same power to sue in respect of all causes of action that survive the deceased, andmay exercise the same power for the recovery of debts as the deceased had when living.

All demands whatsoever and all rights to prosecute or defend any action or specialproceeding existing in favour of or against a person at the time of his decease, survive to and against hisexecutors or administrators; except causes of action for defamation, assault, as defined in the Indian PenalCode (45 of 1860), or other personal injuries not causing the death of the party; and except also caseswhere, after the death of the party, the relief sought could not be enjoyed or granting it would benugatory.

Illustrations

(i) A collision takes place on a railway in consequence of some neglect or default of an official, and a passengeris severely hurt, but not so as to cause death. He afterwards dies without having brought any action. action does notsurvive.

(ii) A sues for divorce. A dies. The cause of action does not survive to his representative.

(1) Subject to the provisions ofsub-section (2), and executor or administrator has power to dispose of the property of the deceased,vested in him under section 211, either wholly or in part, in such manner as he may think fit.

Illustrations

(i) The deceased has made a specific bequest of part of his property. The executor, not having assented to thebequest, sells the subject of it. The sale is valid.

(ii) The executor in the exercise of his discretion mortgages a part of the immoveable estate of the deceased.The mortgage is valid.

(2) If the deceased was a Hindu, Muhammad an, Buddhist, Sikh or Jaina or an exempted person, thegeneral power conferred by sub-section (1) shall be subject to the following restrictions and conditions,namely:--

(i) The power of an executor to dispose of immovable property so vested in him is subject to anyrestriction which may be imposed in this behalf by the Will appointing him, unless probate has beengranted to him and the Court which granted the probate permits him by an order in writing,notwithstanding the restriction, to dispose of any immovable property specified in the order in amanner permitted by the order.

(ii) An administrator may not, without the previous permission of the Court by which the lettersof administration were granted,--

(a) mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable propertyfor the time being vested in him under section 211, or

(b) lease any such property for a term exceeding five years.

(iii) A disposal of property by an executor or administrator in contravention of clause (i) or clause(ii), as the case may be, is voidable at the instance of any other person interested in the property.

(3) Before any probate or letters of administration is or are granted in such a case, there shall beendorsed thereon or annexed thereto a copy of sub-section (1) and clauses (i) and (iii) ofsub-section (2) or of sub-section (1) and clauses (ii) and (iii) of sub-section (2), as the case may be.

(4) A probate or letters of administration shall not be rendered invalid by reason of the endorsementor annexure required by sub-section (3) not having been made thereon or attached thereto, nor shall theabsence of such an endorsement or annexure authorise an executor or administrator to act otherwise thanin accordance with the provisions of this section.

An executor or administrator may, in addition to, and notin derogation of any other powers of expenditure lawfully exercisable by him, incur expenditure--

(a) on such acts as may be necessary for the proper care or management of any propertybelonging to any estate administered by him; and

(b) with the sanction of the High Court, on such religious, charitable and other objects, and onsuch improvements, as may be reasonable and proper in the case of such property.

An executor or administrator shall not be entitled to receiveor retain any commission or agency charges at a higher rate than that for the time being fixed in respect ofthe Administrator-General by or under the Administrator-Generals Act, 1913 (3 of 1913).

If any executor oradministrator purchases, either directly or indirectly, any part of the property of the deceased, the sale isvoidable at the instance of any other person interested in the property sold.

When there are severalexecutors or administrators, the powers of all may, in the absence of any direction to the contrary, beexercised by any one of them who has proved the Will or taken out administration.

Illustrations

(i) One of several executors has power to release a debt due to the deceased.

(ii) One has power to surrender a lease.

(iii) One has power to sell the property of the deceased whether movable or immovable.

(iv) One has power to assent to a legacy.

(v) One has power to endorse a promissory note payable to the deceased.

(vi) The Will appoints A, B, C and D to be executors, and directs that two of them shall be a quorum. No act canbe done by a single executor.

Upon the deathof one or more of several executors or administrators, in the absence of any direction to the contrary inthe will or grant of letters of administration, all the powers of the office become vested in the survivors orsurvivor.

The administrator of effectsunadministered has, with respect to such effects, the same powers as the original executor oradministrator.

An administrator during minority has all thepowers of an ordinary administrator:

When a grant of probate or letters ofadministration has been made to a married woman, she has all the powers of an ordinary executor oradministrator.

It is the duty of an executor to provide funds for the performance ofthe necessary funeral ceremonies of the deceased in a manner suitable to his condition, if he has leftproperty sufficient for the purpose.

(1) An executor or administrator shall, within six months from thegrant of probate or letters of administration, or within such further time as the Court which granted theprobate or letters may appoint, exhibit in that Court an inventory containing a full and true estimate of. allthe property in possession, and all the credits, and also all the debts owing by any person to which theexecutor or administrator is entitled in that character; and shall in like manner, within one year from thegrant or within such further time as the said Court may appoint, exhibit an account of the estate, showingthe assets which have come to his hands and the manner in which they have been applied or disposed of.

The High Court may prescribe the form in which an inventory or account under this section is to beexhibited.

If an executor or administrator, on being required by the Court to exhibit an inventory or accountunder this section, intentionally omits to comply with the requisition, he shall be deemed to havecommitted an offence under section 176 of the Indian Penal Code (45 of 1860).

The exhibition of an intentionally false inventory or account under this section shall be deemed to bean offence under section 193 of that Code.

in all cases where agrant has been made of probate or letters of administration intended to have

effect throughout 1[India] 2, the executor or administrator shall include in the inventory of theeffects of the deceased all his moveable and immoveable property situate in 'India, and the value of suchproperty situate in each state shall be separately stated in such inventory, and the probate or letters ofadministration shall be chargeable with a fee corresponding to the entire amount or value of the propertyaffected thereby wheresoever situate within 1[India].

1. Subs. by Act 3 of 1951, s. 3 and the Schedule, for "the States".

2. The words of "India" omitted by Act 48 of 1952, s. 3 and the Second Schedule.

The executor or administrator shall collect,with reasonable diligence, the property of the deceased and the debts that were due to him at the time ofhis death.

Funeral expenses to a reasonable amount, according tothe degree and quality of the deceased, and death-bed charges, including fees for medical attendance, andboard and lodging for one month previous to his death, shall be paid before all debts.

The expenses of obtaining probate or letters ofadministration, including the costs incurred for or in respect of any judicial proceedings that may benecessary for administering the estate, shall be paid next after the funeral expenses and death-bed charges.

Wages due for servicesrendered to the deceased within three months next preceding his death by any labourer, artizan ordomestic servant shall next be paid, and then the other debts of the deceased according to their respectivepriorities (if any).

Save as aforesaid, no creditorshall have a right of priority over another; but the executor or administrator shall pay all such debts as heknows of, including his own, equally and rateably as far as the assets of the deceased will extend.

(1) Ifthe domicile of the deceased was not in 1[India], the application of his moveable property to the paymentof his debts is to be regulated by the law of 1[India].

(2) No creditor who has received payment of a part of his debt by virtue of sub-section (1) shall beentitled to share in the proceeds of the immoveable estate of the deceased unless he brings such paymentinto account for the benefit of the other creditors.

(3) This section shall not apply where the deceased was a Hindu, Muhammadan, Buddhist, Sikh orJaina or an exempted person.

Illustrations

A dies, having his domicile in a country where instruments under seal have priority over instruments not underseal leaving moveable property to the value of 5,000 rupees, and immoveable property to the value of 10,000 rupees,debts on instruments under seal to the amount of 10,000 rupees, and debts on instruments not under seal to the samemount. The creditors holding instruments under seal received half of their debts out of the proceeds of the moveableestate. The proceeds of the immoveable estate are to be applied in payment of the debts on instruments not underseal until one-half of such debts have been discharged. This will leave 5,000 rupees which are to be distributedrateably amongst all the creditors without distinction, in proportion to the amount which may remain due to them.

1. Subs. by Act 3 of 1951, s. 3 and the Schedule for "the States".

Debts of every description must be paid before any legacy.

If the estate of thedeceased is subject to any contingent liabilities, an executor or administrator is not bound to pay anylegacy without a sufficient indemnity to meet the liabilities whenever they may become due.

If the assets, after payment of debts, necessary expenses andspecific legacies, are not sufficient to pay all the general legacies in full, the latter shall abate or bediminished in equal proportions, and, in the absence of any direction to the contrary in the will, theexecutor has no right to pay one legatee in preference to another, or to retain any money on account of alegacy to himself or to any person for whom he is a trustee.

Where there is aspecific legacy, and the assets are sufficient for the payment of debts and necessary expenses, the thingspecified must be delivered to the legatee without any abatement.

Where there is a demonstrative legacy, and the assets are sufficient for the payment of debtsand necessary expenses, the legatee has a preferential claim for payment of Isis legacy out of the fundfrom which the legacy is directed to be paid until such fund is exhausted and if, after the fund isexhausted, part of the legacy still remains unpaid, he is entitled to rank for the remainder against thegeneral assets as for a legacy of the amount of such unpaid remainder.

If the assets are not sufficent to answer the debtsand the specific legacies, an abatement shall be made from the latter rateably in proportion to theirrespective amounts.

Illustrations

A has bequeathed to B a diamond ring valued at 500 rupees, and to C a horse, valued at 1,000 rupees. It. isfound necessary to sell all the effects of the testator; and his assets, after payment of debts, are only 1,000 rupees. Ofthis sum rupees 333-5-4 are to be paid to B, and rupees 666-10-8 to C.

For the purpose of abatement, alegacy for life, a sum appropriated by the will to produce an annuity, and the value of an annuity when nosum has been appropriated to produce it, shall be treated as general legacies.

The assent of the executor or administrator isnecessary to complete a legatee's title to his legacy.

Illustrations

(i) A by his will bequeaths to B his Government paper which is in deposit with the Imperial Bank of India. TheBank has no authority to deliver the securities, nor B a right to take possession of them, without the assent of theexecutor.

(ii) A by- his will has bequeathed to C his house in Calcutta in the tenancy of B. C is not entitled to receive therents without the assent of the executor or administrator.

(1) The assent of the executor or administratorto a specific bequest shall be sufficient tb divest his interest as executor or administrator therein, and totransfer the subject of the bequest of the legatee, unless the nature or the circumstances of the propertyrequire that it shall be transferred in a particular way.

(2) This assent may be verbal, and it may be either express or implied from the conduct of theexecutor or administrator.

Illustrations

(i) A horse is bequeathed. The executor requests the legatee to dispose of it, or a third party proposes topurchase the horse from the executor, and he directs him to apply to the legatee. Assent to the legacy is implied.

(ii) The interest of a fund is directed by the will to be applied for the maintenance of the legatee during hisminority. The executor commences so to apply it. This is an assent to the whole of the bequest.

(iii) A bequest is made of a fund to A and after him to B. The executor pays the interest of the fund to A. This isan implied assent to the bequest to B.

(iv) Executors die after paying all the debts of the testator, but before satisfaction of specific legacies. Assent tothe legacies may be presumed.

(v) A person to whom a specific article has been bequeathed takes possession of it and retains it without anyobjection on the part of the executor. His assent may be presumed.

The assent of an executor or administrator to a legacy may be conditional,and if the condition is one which he has a right to enforce, and it is not performed, there is no assent.

Illustrations

(i) A bequeaths to B his lands of Sultanpur, which at the date of the will, and at the death of A, were subject to amortgage for 10,000 rupees. The executor assents to the bequest, on condition that B shall within a limited time paythe amount due on the mortgage at the testator's death. The amount is not paid. There is no assent.

(ii) The executor assents to a bequest on condition that the legatee shall pay him a sum of money. The paymentis not made. The assent is nevertheless valid.

(1) When the executor or administrator is a legatee, hisassent to his own legacy is necessary to complete his title to it, in the same way as it is required when thebequest is to another person, and his assent may, in like manner, be expressed or implied.

(2) Assent shall be implied if in his manner of administering the property he does any act which isreferable to his character of legatee and is not referable to his character of executor or administrator.

Illustrations

An executor takes the rent of a house or the interest of Government securities bequeathed to him and applied itto his own use. This is assent.

The assent of the executor or administrator to a legacy giveseffect to it from the death of the testator.

Illustrations

(i) A legatee sells his legacy before it is assented to by the executor. The executor's subsequent assent operatesfor the benefit of the purchaser and completes his title to the legacy.

(ii) A bequeaths 1,000 rupees to B with interest from his death. The executor does not assent to his legacy untilthe expiration of a year from A's death. B is entitled to interest from the death of A.

An executor or administrator is not bound to pay ordeliver any legacy until the expiration of one year from the testator's death.

Illustrations

A by his will directs his legacies to be paid within six months after his death. The executor is not bound to paythem before the expiration of a year.

Where an annuity is given by a willand no time is fixed for its commencement, it shall commence from the testator's death, and the firstpayment shall be made at the expiration of a year next after that event.

Where there is a directionthat the annuity shall be paid quarterly or monthly, the first payment shall be due at the end of the firstquarter or first month, as the case may be, after the testator's death; and shall, if the executor oradministrator thinks fit, be paid when due, but the executor or administrator shall not be bound to pay ittill the end of the year.

(1) Where there is a direction that thefirst payment of an annuity shall be made within one month or any other division of time from the deathof the testator, or on a day certain, the successive payments are to be made on the anniversary of theearliest day on which the will authorises the first payment to be made.

(2) If the annuitant dies in the interval between the times of payment, an apportioned share of theannuity shall be paid to his representative.

Where a legacy,not being a specific legacy, is given for life, the sum bequeathed shall at the end of the year he invested insuch securities as the High Court may by any general rule authorise or direct, and the proceeds thereofshall be paid to the legatee as the same shall accrue due.

(1) Where a general legacy is given to be paid at a future time, the executor or administrator shall invest asum sufficient to meet it in securities of the kind mentioned in section 341.

(2) The intermediate interest shall form part of the residue of the testator's estate.

Where an annuity isgiven and no fund is charged with its payment or appropriated by the will to answer it, a Governmentannuity of the specified amount shall be purchased, or, if no such annuity can be obtained, then a sumsufficient to produce the annuity shall be invested for that purpose in securities of the kind mentioned insection 341.

Where a bequest is contingent, theexecutor or administrator is not bound to invest the amount of the legacy, but may transfer the wholeresidue of the estate to the residuary legatee, if any, on his giving sufficient security for the payment ofthe legacy, if it shall become due.

(1) Where the testator has bequeathed the residue of his estate to a person for life withoutany direction to invest it in any particular securities, so much thereof as is not at the time of the testator'sdecease invested in securities of the kind mentioned in section 341 shall be converted into money andinvested in such securities.

(2) This section shall not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jainaor an exempted person.

When the testator has bequeathed the residue of his estate of a person for life with a direction that it shallbe invested in certain specified securities, so much of the estate as is not at the time of his death investedin securities of the specified kind shall be converted into money and invested in such securities.

Such conversion and investment as arecontemplated by sections 345 and 346 shall be made at such times and in such manner as the executor oradministrator thinks fit; and, until such conversion and investment are completed, the person who wouldbe for the time being entitled to the income of the fund when so invested shall receive interest at the rateof 4 per cent. per annum upon the market-value (to be computed as at the date of the testator's death) ofsuch part of the fund as has not been so invested:

Provided that the rate of interest prior to completion of investment shall be six per cent. per annumwhen the testator was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person

(1) Where, by the terms of a bequest, the legatee is entitled tothe immediate payment or possession of the money or thing bequeathed, but is a minor, and there is nodirection in the will to pay it to any person on his behalf, the executor or administrator shall pay or deliverthe same into the Court of the District Judge, by whom or by whose District Delegate the probate was, orletters of administration with the will annexed were, granted to the account of the legatee, unless thelegatee is a ward of the Court of Wards.

(2) If the legatee is a ward of the Court of Wards, the legacy shall be paid to the Court of Wards to hisaccount.

(3) Such payment into the Court of the District Judge, or to the Court of Wards, as the case may be,shall be a sufficient discharge for the money so paid.

(4) Money when paid in under this section shall be invested in the purchase of Government securities,which, with the interest thereon, shall be transferred or paid to the person entitled thereto, or otherwiseapplied for his benefit, as the Judge or the Court of Wards, as the case may be, may direct.

The legatee of a specific legacy is entitled to theclear produce thereof. if any, from the testator's death.

Exception.-- A specific bequest, contingent in its terms, does not comprise the produce of the legacybetween the death of the testator and the vesting of the legacy. The clear produce of it forms part of theresidue of the testator's estate.

Illustrations

(i) A bequeaths his flock of sheep to B. Between the death of A and delivery by his executor the sheep are shornor some of the ewes produce lambs. The wool and lambs are the property of B.

(ii) A bequeaths his Government securities to B, but postpones the delivery of them till the death of C. Theinterest which falls due between the death of A and the death of C belongs to B, and must, unless he is a minor, bepaid to him as it is received.

(iii) The testator bequeaths all his four per cent. Government promissory notes to A when he shall complete theage of 18. A, if he completes that age, is entitled to receive the notes, but the interest which accrues in respect ofthem between the testator's death and As completing 18, form part of the residue.

The legatee under a generalresiduary bequest is entitled to the produce of the residuary fund from the testator's death.

Exception.-- A general residuary bequest contingent in its terms does not comprise the income whichmay accrue upon the fund bequeathed between the death of the testator and the vesting of the legacy.Such income goes as undisposed of.

Illustrations

(i) The testator bequeaths the residue of his property to A, a minor, to be paid to him when he shall complete theage of 18. The income from the testator's death belongs to A.

(ii) The testator bequeaths the residue of his property to A when he shall complete the age of 18. A, if hecompletes that age, is entitled to receive the residue. The income which has accrued in respect of it since thetestator's death goes as undisposed of.

Where no time has been fixedfor the payment of a general legacy, interest begins to run from expiration of one year from the testator'sdeath.

Exception.-- (1) Where the legacy is bequeathed in satisfaction of a debt, interest runs from the deathof the testator.

(2) Where the testator was a parent or a more remote ancestor of the legatee, or has put himself in theplace of a parent of the legatee, the legacy shall bear interest from the death of the testator.

(3) Where a sum is bequeathed to a minor with a direction to pay for his maintenance out of it,interest is payable from the death of the testator.

Where a time has been fixed for the payment of a general legacy,interest begins to run from the time so fixed. The interest up to such time forms part of the residue of thetestator's estate.

Exception.-- Where the testator was a parent or a more remote ancestor of the legatee, or has puthimself in the place of a parent of the legatee and the legatee is a minor, the legacy shall bear interestfrom the death of the testator, unless a specific sum is given by the will for maintenance, or unless thewill contains a direction to the contrary.

The rate of interest shall be four per cent. per annum in all cases except whenthe testator was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, in which case itshall be six per cent. per annum.

No interest ispayable on the arrears of an annuity within the first year from the death of the testator, although a periodearlier than the expiration of that year may have been fixed by will for making the first payment of theannuity.

Where a sum of money is directed to beinvested to produce an annuity, interest is payable on it from the death of the testator.

When an executor or administrator has paid alegacy under the order of a Court, he is entitled to call upon the legatee to refund in the event of the assetsproving insufficient to pay all the legacies.

When an executor or administrator has voluntarily paid alegacy, he cannot call upon a legatee to refund in the event of the assets proving insufficient to pay all thelegacies.

When the time prescribed by the will for the performance of a conditionhas elapsed, without the condition having been performed, and the executor or administrator hasthereupon, without fraud, distributed the assets; in such case, if further time has been allowed undersection 137 for the performance of the condition, and the condition has been performed accordingly, thelegacy cannot be claimed from the executor or administrator, but those to whom he has paid it are liableto refund the amount.

When the executor oradministrator has paid away the assets in legacies, and he is afterwards obliged to discharge a debt ofwhich he had no previous notice, he is entitled to call upon each legatee to refund in proportion.

Where an executor or administrator has given such notices as the HighCourt may, by any general rule, prescribe or, if no such rule has been made, as the High Court would givein an administration-suit, for creditors and others to sent in to him their claims against the state of thedeceased, he shall, at the expiration of the time therein named for sending in claims, be at liberty todistribute the assets, or any part thereof, in discharge of such lawful claims as he knows of, and shall notbe liable for the assets so distributed to any person of whose claim he shall not have had notice at the timeof such distribution:

Provided that nothing herein contained shall prejudice the right of any creditor or claimant to followthe assets, or any part thereof, in the hands of the persons who may have received the same respectively.

A creditor who has not received payment of hisdebt may call upon a legatee who has received paymeni of his legacy to refund, whether the assets of thetestator's estate were or were not sufficient at the time of his death to pay both debts and legacies; andwhether the payment of the legacy by the executor or administrator was voluntary or not.

If the assets were sufficient to satisfy all the legacies at the time of the testator'sdeath, a legatee who has not received payment of his legacy, or who has been compelled to refund undersection 361, cannot oblige one who has received payment in full to refund, whether the legacy were paidto him with or without suit, although the assets have subsequently become deficient by the wasting of theexecutor.

If the assets werenot sufficient to satisfy all the legacies at the time of the testator's death, a legatee who has not receivedpayment of his legacy must, before he can call on a satisfied legatee to refund, first proceed against theexecutor or administrator if he is solvent; but if the executor or administrator is insolvent or not liable topay, the unsatisfied legatee can oblige each satisfied legatee to refund in proportion.

The refunding of one legatee to another shallnot exceed the sum by which the satisfied legacy ought to have been reduced if the estate had beenproperly administered.

Illustrations

A has bequeathed 240 rupees, to B, 480 rupees to C, and 720 rupees to D. The assets are only 1,200 rupees and,if properly administered, would give 200 rupees to B, 400 rupees to C and 600 rupees to D. C and D have been paidtheir legacies in full leaving nothing to B. B can oblige C to refund 80 rupees, and D to refund 120 rupees.

The refunding shall in all cases be without interest.

The surplus or residue of thedeceased's property, after payment of debts and legacies, shall be paid to the residuary legatee when anyhas been appointed by the will.

Where a person not having his domicile in 1[India] has died leaving assets both in if1[India] and in the country in which he had his domicile at the time of his death, and there has been agrant of probate or letters of administration in 1[India] with respect to the assets there a grant ofadministration in the country of domicile with respect to the assets in that country, the executor oradministrator, as the case may be, in 1[India], after having given such notices as are mentioned in section360, and after having discharged, at the expiration of the time therein named, such lawful claims as heknows of, may, instead of himself distributing any surplus or residue of the deceaseds property topersons residing out of 1[India] who are entitled thereto, transfer, with the consent of the executor oradministrator, as the case may be, in the country of domicile, the surplus or residue to him for distributionto those persons.

1. Subs. by Act 3 of 1951, s. 3 and the Schedule, for "the States".

When an executor or administratormisapplies the estate of the deceased, or subjects it to loss or damage, he is liable to make good the loss ordamage so occasioned.

Illustrations

(i) The executor pays out of the estate an unfounded claim. He is liable to make good the loss.

(ii) The deceased had a valuable lease renewable by notice which the executor neglects to give at the propertime. The executor is liable to make good the loss.

(iii) The deceased had a lease of less value than the rent payable for it, but terminable on notice at a particulartime. The executor neglects to give the notice. He is liable to make good the loss.

When anexecutor or administrator occasions a loss to the estate by neglecting to get in any part of the property ofthe deceased, he is liable to make good the amount.

Illustrations

(i) The executor absolutely releases a debt due to the deceased from a solvent person, or compounds with adebtor who is able to pay in full. The executor is liable to make good the amount.

(ii) The executor neglects to sue for a debt till the debtor is able to plead that the claim is barred by limitationand the debt is thereby lost to the estate. The executor is liable to make good the amount.

(1) A succession certificate (hereinafterin this Part referred to as a certificate) shall not be granted under this Part with respect to any debt orsecurity to which a right is required by section 212 or section 213 to be established by letters ofadministration or probate:

Provided that nothing contained in this section shall be deemed to prevent the grant of a certificate toany person claiming to be entitled to the effects of a deceased Indian Christian, or to any part thereof,with respect to any debt or security, by reason that a right thereto can be established by letters ofadministration under this Act.

(2) For the purposes of this Part, "security" means--

(a) any promissory note, debenture, stock or other security of the Central Government or of aState Government;

(b) any bond, debenture, or annuity charged by Act of Parliament 1[of the United Kingdom] onthe revenues of India;

(c) any stock or debenture of, or share in, a company or other incorporated institution;

(d) any debenture or other security for money issued by, or on behalf of, a local authority;

(e) any other security which the 2[State Government] may, by notification in the Official Gazette,declare to be a security for the purposes of this Part.

1. Ins. by the A. O. 1950.

2. The words "G.G. in C" have been successively amended by the A.O. 1937 and the A.O. 1950 to read as above.

The District Judge within whose jurisdictionthe deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place ofresidence, the District Judge, within whose jurisdiction any part of the property of the deceased may befound, may grant a certificate under this Part.

(1) Application for such a certificate shall be made to the DistrictJudge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by theCode of Civil Procedure, 1908 (5 of 1908) for the signing and verification of a plaint by or on behalf of aplaintiff, and setting forth the following particulars, namely:--

(a) the time of the death of the deceased;

(b) the ordinary residence of the deceased at the time of his death and, if such residence was notwithin the local limits of the jurisdiction of the Judge to whom the application is made, then theproperty of the deceased within those limits;

(c) the family or other near relatives of the deceased and their respective residences;

(d) the right in which the petitioner claims;

(e) the absence of any impediment under section 370 or under any other provision of this Act orany other enactment, to the grant of the certificate or to the validity thereof if it were granted; and

(f) the debts and securities in respect of which the certificate is applied for.

(2) If the petition contains any averment which the person verifying it knows or believes to be false,or does not believe to be true, that person shall be deemed to have committed an offence under section198 of the Indian Penal Code, 1860 (45 of 1860).

1[(3) Application for such a certificate may be made in respect of any debt or debts due to thedeceased creditor or in respect of portions thereof.]

1. Added by Act 14 of 1928, s. 2.

(1) If the District Judge is satisfied that there is ground forentertaining the application, he shall fix a day for the hearing thereof and cause notice of the applicationand of the day fixed for the hearing--

(a) to be served on any person to whom, in the opinion of the Judge, special notice of theapplication should be given, and

(b) to be posted on some conspicuous part of the court-house and published in such other manner,if any, as the Judge, subject to any rules made by the High Court in this behalf, thinks fit,

and upon the day fixed, or as soon thereafter as may be practicable, shall proceed to decide in a summarymanner the right to the certificate.

(2) When the Judge decides the right thereto to belong to the applicant, the Judge shall make an orderfor the grant of the certificate to him.

(3) If the Judge cannot decide the right to the certificate without determining questions of law or factwhich seem to be too intricate and difficult for determination in a summary proceeding, he maynevertheless grant a certificate to the applicant if he appears to be the person having prima facie the besttitle thereto.

(4) When there are more applicants than one for a certificate, and it appears to the Judge that morethan one of such applicants are interested in the estate of the deceased, the Judge may, in deciding towhom the certificate is to be granted, have regard to the extent of interest and the fitness in other respectsof the applicants.

When the District Judge grants a certificate, he shall therein specifythe debts and securities set forth in the application for the certificate, and may thereby empower theperson to whom the certificate is granted--

(a) to receive interest or dividends on, or

(b) to negotiate or transfer, or

(c) both to receive interest or dividends on, and to negotiate or transfer, the securities or any ofthem.

(1) The District Judge shall in any casein which he proposes to proceed under sub-section (3) or sub-section (4) of section 373, and may, in anyother case, require, as a condition precedent to the granting of a certificate, that the person to whom heproposes to make the grant shall give to the Judge a bond with one or more surety or sureties, or othersufficient security, for rendering an account of debts and securities received by him and for indemnity ofpersons who may be entitled to the whole or any part of those debts and securities.

(2) The Judge may, on application made by petitioner and on cause shown to his satisfaction, andupon such terms as to security, or providing that the money received be paid into Court, or otherwise, ashe thinks fit, assign the bond or other security to some proper person, and that person shall thereupon beentitled to sue thereon in his own name as if it had been originally given to him instead of to the Judge ofthe Court, and to recover, as trustee for all persons interested, such amount as may be recoverablethereunder.

(1) A District Judge may, on the application of the holder of acertificate under this Part, extend the certificate to any debt or security not originally specified therein,and every such extension shall have the same effect as if the debt or security to which the certificate isextended had been originally specified therein.

(2) Upon the extension of a certificate, powers with respect to the receiving of interest or dividendson, or the negotiation or transfer of, any security to which the certificate has been extended may beconferred, and a bond or further bond or other security for the purposes mentioned in section 375 may berequired, in the same manner as upon the original grant of a certificate.

Certificates shall be granted and extensions ofcertificates shall be made, as nearly as circumstances admit, in the forms set forth in Schedule VIII.

Where a District Judge hasnot conferred on the holder of a certificate any power with respect to a security specified in the certificate,or has only empowered him to receive interest or dividends on, or to negotiate or transfer, the security theJudge may, on application made by petitioner and on cause shown to his satisfaction, amend thecertificate by conferring any of the powers mentioned in section 374 or by substituting any one for anyother of those powers.

(1) Every application for a certificate or for theextension of a certificate shall be accompanied by a deposit of a sum equal to the fee payable under theCourt-Fees Act, 1870 (7 of 1870), in respect of the certificate or extension applied for.

(2) If the application is allowed, the sum deposited by the applicant shall be expended, under thedirection of the Judge, in the purchase of the stamp to be used for denoting the fee payable as aforesaid.

(3) Any sum received under sub-section (1) and not expended under sub-section (2) shall be refundedto the person who deposited it.

A certificate under this Part shall have effectthroughout 1[India] 2.

3[This section shall apply in 3[India] 4after the separation of Burma and Aden from India tocertificates granted in Burma and Aden before the date of the separation, or after that date in proceedingswhich were pending at that date.]

5[It shall also apply in 3[India] 67after the separation of Pakistan from India to certificates grantedbefore the date of the separation, or after that date in proceedings pending at that date in any of theterritories which on that date constituted Pakistan.]

1. Subs.by Act 3 of 1951, s. 3 and the Schedule, for "the States".

2. The words of "India" omitted by the A.O. 1950.

3. Ins. by the A.O. 1937.

4. 1st April, 1937.

5. Added by the A.O. 1948.

6. The words "of India" omitted by Act 48 of 1952, s. 3 and Schedule II.

7. 15th August, 1947.

Subject to the provisions of this Part, the certificate of the District Judgeshall, with respect to the debts and securities specified therein, be conclusive as against the persons owingsuch debts or liable on such securities, and shall, notwithstanding any contravention of section 370, orother defect, afford full indemnity to all such persons as regards all payments made, or dealings had, ingood faith in respect of such debts or securities to or with the person to whom the certificate was granted.

1[382. Effect of certificate granted or extended by Indian representative in Foreign State and incertain other cases. Where a certificate in the form, as nearly as circumstances admit, of ScheduleVIII

(a) has been granted to a resident within a foreign State by an Indian representative accredited tothat State, or

(b) has been granted before the commencement of the Part B States (Laws) Act, 1951 (3 of 1951),to a resident within any Part B State by a district judge of that State or has been extended by him insuch form, or

(c) has been granted after the commencement of the Part B States (Laws) Act, 1951 (3 of 1951),to a resident within the State of Jammu and Kashmir by the district judge of that State or has beenextended by him in such form, the certificate shall, when stamped in accordance with the provisionsof the Court-Fees Act, 1870 (7 of 1870), with respect to certificates under this Part, have the sameeffect in India as a certificate granted or extended under this Part.]

1. Subs. by Act 1957, s. 2 for s. 382.

A certificate granted under this Part may be revoked for any of thefollowing causes, namely:--

(a) that the proceedings to obtain the certificate were defective in substance;

(b) that the certificate was obtained fraudulently by the making of a false suggestion, or by theconcealment from the Court of something material to the case;

(c) that the certificate was obtained by means of an untrue allegation of a fact essential in point oflaw to justify the grant thereof, though such allegation was made in ignorance or inadvertently;

(d) that the certificate has become useless and inoperative through circumstances;

(e) that a decree or order made by a competent Court in a suit or other proceeding with respect toeffects comprising debts or securities specified in the certificate renders it proper that the certificateshould be revoked.

(1) Subject to the other provisions of this Part, an appeal shall lie to the High Courtfrom an order of a District Judge granting, refusing or revoking a certificate under this Part, and the HighCourt may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should begranted and direct the District judge, on application being made therefore, to grant it accordingly, in supersession of the certificate, if any, already granted.

(2) An appeal under sub-section (1) must be preferred within the time allowed for an appeal under theCode of Civil Procedure, 1908 (5 of1908).

(3) Subject to the provisions of sub-section (1) and to the provisions as to reference to and revision bythe High Court and as to review of judgment of the Code of Civil Procedure, 1908 (5 of 1908), as appliedby section 141 of that Code, an order of a District Judge under this Part shall be final.

Save asprovided by this Act, a certificate granted thereunder in respect of any of the effects of a deceased personshall be invalid if there has been a previous grant of such a certificate or of probate or letters ofadministration in respect of the estate of the deceased person and if such previous grant is in force.

Where a certificate under this Part has been superseded or is invalid by reason of thecertificate having been revoked under section 383,or by reason of the grant of a certificate to a personnamed in an appellate order under section 384, or by reason of a certificate having been previouslygranted, or for any other cause, all payments made or dealings had, as regards debts and securitiesspecified in the superseded or invalid certificate, to or with the holder of that certificate in ignorance of itssuper session or invalidity, shall be held good against claims under any other certificate.

No decision under this Part upon any question of right between any parties shall be held tobar the trial of the same question in any suit or in any other proceeding between the same parties, andnothing in this Part shall be construed to affect the liability of any person who may receive the whole orany part of any debt or security, or any interest or dividend on any security, to account therefore to theperson lawfully entitled thereto.

(1) The State Government may by notification in the Official Gazette, invest any court inferior ingrade to a District Judge with power to exercise the functions of a District Judge under this Part.

(2) Any inferior court so invested shall, within the local limits of its jurisdiction, have concurrentjurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon theDistrict Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferiorcourt as if it were a District Judge:

Provided that an appeal from any such order of an inferior court as is mentioned in sub-section (1) ofsection 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if hethinks fit, by his order on the appeal, make any such declaration and direction as that sub-sectionauthorises the High Court to make by its order on an appeal from an order of a District Judge.

(3) An order of a District Judge on an appeal from an order of an inferior Court under the lastforegoing sub-section shall, subject to the provisions as to reference to and revision by the High Courtand as to review of judgment of the Code of Civil Procedure, 1908 (5 of 1908), as applied by section141 of that Code, be final.

(4) The District Judge may withdraw any proceedings under this Part from an inferior court, and mayeither himself dispose of them or transfer them to another such court established within the local limits ofthe jurisdiction of the District Judge and having authority to dispose of the proceedings.

(5) A notification under sub-section (1) may specify any inferior court specially or any class of suchcourts in any local area.

(6) Any Civil Court which for any of the purposes of any enactment is subordinate to, or subject tothe control of, a District Judge shall, for the purposes of this section, be deemed to be a court inferior ingrade to a District Judge.

STATE AMENDMENT

Karnataka

Amendment of Central Act 39 of 1925.--In the Indian Succession Act, 1925 (Central Act 39 of1925) as in force in the State of Karnataka, section 388 shall be omitted.

[Vide Karnataka Act 28 of 1978, s. 4].

(1) When a certificate under this Part hasbeen superseded or is invalid from any of the causes mentioned in section 386, the holder thereof shall, onthe requisition of the Court which granted it, deliver it upto that court.

(2) If he willfully and without reasonable cause omits so to deliver it up, he shall be punishable withfine which may extend to one thousand rupees, or with imprisonment for a term which may extend tothree months or with both.

Notwithstanding anything in Bombay Regulation No. VIII of 1827 the provisions of section 370, subsection (2), section 372, sub-section (1), clause (f), and sections 374, 375, 376, 377, 378, 379, 381, 383,384, 387, 388 and 389 with respect to certificates under this Part and applications therefore, and ofsection 317 with respect to the exhibition of inventories and accounts by executors and administrators,shall, so far as they can be made applicable, apply, respectively, to certificates granted under thatRegulation and applications made for certificates thereunder, after the 1st day of May, 1889 and to theexhibition of inventories and accounts by the holders of such certificates so granted.

Nothing in Part VIII, Part IX or Part X shall--

(i) validate any testamentary disposition which would otherwise have been invalid;

(ii) invalidate any such disposition which would otherwise have been valid;

(iii) deprive any person of any right of maintenance to which he would otherwise have beenentitled; or

(iv) affect the Administrator Generals Act, 1913 (3 of 1913).

[Repealed.]--Rep. by the Repealing Act, 1927 (12 of 1927), s. 2 and Schedule.