Section 105 of the Indian Succession Act, 1925: Doctrine of Lapse and its Contemporary Interpretation

Section 105 of the Indian Succession Act, 1925: Doctrine of Lapse and its Contemporary Interpretation

Introduction

In the architecture of the Indian Succession Act, 1925 (“ISA”), Section 105 occupies a pivotal position in Chapter XI entitled “Failure of Bequests”. The provision encapsulates the rule that a legacy, whether specific or residuary, ordinarily fails where the legatee does not survive the testator. The doctrine – often labelled “lapse” – performs two systemic functions: it preserves the testamentary scheme against uncertainty, and it reallocates property that would otherwise descend into a legal vacuum. At the same time, the section embodies significant qualifications respecting the testator’s contrary intention and places a distinct evidentiary burden on the propounder of the will. The present article critically analyses Section 105, situating it within the wider statutory matrix, tracing its historical lineage, and assessing its judicial exposition with particular emphasis on leading authorities such as S. Jhansi Lakshmi Bai v. Pothana Appa Rao[5].

Legislative Context and Textual Analysis

The statutory setting

Part VI of the ISA consolidates the law of testamentary succession and is thematically divided into eleven chapters. Chapter XI (ss. 105-116) governs diverse forms of failure – lapse, ademption, election, and invalid bequests. Within this framework, Section 105 provides:

“(1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator’s property, unless it appears by the will that the testator intended that it should go to some other person.
(2) In order to entitle the representative of the legatee to receive the legacy, it must be proved that he survived the testator.”[1]

Key elements

  • Survival as a condition precedent: The legatee must be alive at the moment of the testator’s death. This aligns with the common-law maxim nemo est haeres viventis.
  • Doctrine of lapse: Failure of the legacy leads to its falling into residue. The provision thereby operates as a default residuary sweep.
  • Contrary intention: The phrase “unless it appears by the will” preserves testamentary autonomy; express or implied indications can avert lapse.
  • Burden of proof: Sub-section (2) shifts the onus to the representative of the legatee to establish survival – a rule reiterated in Jayantilal Mansukhlal[6].

Historical Genesis

Section 105 traces to Section 50 of the Probate and Administration Act, 1881 and, before that, Section 180 of Act X of 1865. The Privy Council in Mt. Ramanandi Kuer v. Mt. Kalawati Kuer[2] observed that the Indian enactments, while borrowing from English ecclesiastical law, had “evolved an independent system” responsive to indigenous conditions. The consolidation in 1925 retained the core rule of lapse but introduced stylistic clarity and the express evidentiary clause now in sub-section (2).

Interplay with Adjacent Provisions

  • Section 107: Where legatees are given distinct shares, the share of a pre-deceased legatee also lapses into residue.
  • Section 108: Addresses joint legacies; failure of one joint legatee may augment the share of survivors.
  • Section 109 (Anti-lapse for lineal descendants): Carves out an exception where the legatee is “a child or other lineal descendant” who leaves issue surviving the testator. The Kerala High Court in Mavila Chathoth Vasudevan Nambiar[7] characterised Section 109 as a statutory mitigation of the harshness of Section 105.
  • Sections 111-114: Provide further savings concerning class legacies, contingent gifts, and gifts over, often invoked to discern “contrary intention”.
  • Evidence Act, 1872, Sections 107-108: Though relating to presumption of life and death, these provisions interact with Section 105(2) by guiding courts on uncertainty of survivorship, illustrated in Jayantilal Mansukhlal[6].

Judicial Construction of Section 105

Supreme Court authority

In S. Jhansi Lakshmi Bai v. Pothana Appa Rao[5] the Supreme Court undertook a seminal exposition. The Court rejected the narrow English test in Browne v. Hape requiring the testator expressly both to exclude lapse and to nominate an alternative beneficiary. Instead, it held that any discernible intention, express or implied from the testamentary scheme, suffices to displace the statutory default. The decision emphasises:

“Section 105(1) does not say, nor does it imply, that the testator must explicitly envisage the possibility of lapse; an affirmative intention that the legacy should not lapse is adequate.”[5]

Burden of proof and “commorientes”

The Gujarat High Court in Jayantilal Mansukhlal[6] dealt with simultaneous deaths in a fire. The Court held that, absent proof of the legatee’s survival, the legacy lapses, endorsing the allocation of onus in Section 105(2). The decision also exposes the practical difficulty in “commorientes” cases where evidence is inherently fragile, thereby reinforcing the equity of the anti-lapse provision in Section 109.

Indicative intention and acceleration

The Punjab & Haryana High Court in Tara Singh v. Raghbir Singh[8] applied the Supreme Court’s approach to hold that even an oblique testamentary scheme (distributing property over successive interests) could avert lapse. The contention that acceleration is required for substitution was rejected, echoing Pothana Appa Rao.

Religious or charitable legacies

In Nathubhai Ichharam… v. Narayanacharya Ramacharya[9] the Bombay High Court held that change of circumstances (death of testator’s wife and remarriage) does not invalidate a devise to a temple; Section 105 was cited to reinforce that the intended charitable object persisted despite personal contingencies.

Statutory reach across personal laws

Although Part VI applies inter alia to Hindus only in limited territorial circumstances specified in Section 57, subsequent constitutional and statutory developments have expanded application. The Supreme Court in Mary Roy v. State of Kerala[10] highlighted the extension of ISA provisions to erstwhile Part B states, underscoring the pan-Indian relevance of Section 105.

Doctrinal Themes

Default versus intention

Section 105 demonstrates the legislature’s preference for upholding the testator’s plan, yet provides a fail-safe where that plan is silent or incapable of operation. The judiciary’s modern interpretation leans towards a generous construction favouring intention, reducing inadvertent lapses.

Policy considerations

  • Certainty: The lapse doctrine prevents speculative claims where the identity of the beneficiary is extinguished.
  • Family protection: The anti-lapse exceptions in Sections 109-110 advance familial solidarity by diverting benefits to the legatee’s issue.
  • Testamentary freedom: The saving clause respects autonomy, yet obliges diligent drafting to articulate substitutionary gifts.

Evidentiary rigour

The allocation of burden in Section 105(2) co-exists with Section 68, Evidence Act requirements for proving wills. As noted by the Delhi High Court in Jagdish Prasad v. State (discussing Section 63 ISA and Section 68 Evidence Act)[7], compliance with attestation norms and the proof of survival are logically distinct inquiries; both must be satisfied for the legacy to vest.

Implications for Drafting and Litigation

  • Express substitutionary clauses: Drafters should incorporate “gift-over” language (“and in the event that X predeceases me, I bequeath the said property to Y”) to pre-empt lapse.
  • Survivorship clauses: Employing phrases such as “to X if he or she shall be living at my death” can either trigger or negate Section 105, depending on intent.
  • Contingent trusts: Use of discretionary or residuary trusts may minimise unintended intestacy.
  • Evidence preservation: Testators and advisors should maintain contemporaneous records and consider video-recorded execution to ease proof of due execution, leaving fewer disputes on attestation and survivorship.

Conclusion

Section 105, though succinct, operates at the intersection of testamentary intent, evidentiary standards, and policy objectives of certainty and familial welfare. Judicial trends, culminating in Pothana Appa Rao, have shifted the interpretative balance towards effectuating the testator’s broader design, thereby attenuating the rigidity of the lapse doctrine. Nevertheless, the statutory burden resting on representatives to establish survivorship remains exacting, as illustrated in “commorientes” jurisprudence. Robust drafting practices and awareness of adjacent statutory safeguards (notably Section 109) are essential to ensure that bona fide dispositions endure beyond the testator’s demise.

Footnotes

  1. Indian Succession Act, 1925, s. 105.
  2. Mt. Ramanandi Kuer v. Mt. Kalawati Kuer, Privy Council, 1927.
  3. Rupali Mehta v. Tina Narinder Sain Mehta, Bombay High Court, 2006.
  4. John Vallamattom v. Union of India, (2003) 6 SCC 611.
  5. S. Jhansi Lakshmi Bai v. Pothana Appa Rao, AIR 1969 SC 1355.
  6. Jayantilal Mansukhlal v. Mehta Chhanalal Ambalal, 1966 SCC OnLine Guj 12.
  7. Jagdish Prasad v. State, Delhi High Court, 2015.
  8. Tara Singh v. Raghbir Singh, 2009 SCC OnLine P&H 5803.
  9. Nathubhai Ichharam v. Narayanacharya Ramacharya, Bombay High Court, 1927.
  10. Mary Roy v. State of Kerala, (1986) 2 SCC 209.