SUCCESSION ACT, 1925
This Act may be called the Indian Succession Act, 1925.
The Indian Succession Act, 1925, is a comprehensive legislation that governs the laws of succession and inheritance in India, primarily for non-Muslims. It provides a framework for the distribution of a deceased person's estate, both in cases of testate (with a will) and intestate (without a will) succession.
Section 1 of the Indian Succession Act, 1925, outlines the short title and the extent of the Act. It states that the Act may be called the Indian Succession Act, 1925, and it extends to the whole of India, except for the state of Jammu and Kashmir.
The scope of Section 1 is limited to the nomenclature and territorial application of the Act. It sets the foundation for the subsequent sections that detail the rules and regulations governing succession.
Section 1 does not prescribe any punishments or penalties, as it merely serves as an introductory provision to the Act.
This commentary provides an overview of Section 1 of the Indian Succession Act, 1925, highlighting its significance and implications within the broader context of succession law in India.
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 a deceased person when there is no executor;
(b) “codicil” means an instrument made in relation to a Will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the Will;
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, by the testator’s appointment, confided;
2[(cc) “India” means the territory of India excluding the State of Ja
(1) The State Government may, by notification in the Official Gazette, either retrospectively from the sixteenth day of March, 1865, or prospectively, exempt from the operation of any of the following provisions of this Act, namely, sections 5 to 49, 58 to 191, 212, 213 and 215 to 369, the members of any race, sect or tribe in the State, or of any part of such race, sect or tribe to whom the State Government considers 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 the revocation shall have retrospective effect.
(3) Persons exempted under this section or exempted from the operation of any of the provisions of the Indian Succession Act, 18651 (10 of 1865), under section 332 of that Act are in this Act r
Section 3 of the Indian Succession Act, 1925, empowers the State Government to exempt any race, sect, or tribe from the operation of the Act through a notification. This provision recognizes the diversity of customary laws and practices governing succession among different communities and aims to accommodate their unique social and cultural norms.
Section 3 states that the State Government has the authority to notify any race, sect, or tribe within the State to be exempt from the operation of the Indian Succession Act, 1925. Such exemption can be made either wholly or partially, and the notification, once issued, effectively excludes the community from the application of the Act.
Section 3 provides a mechanism for communities with their own customary laws to be exempted from the statutory provisions of the Succession Act. It recognizes the validity of customary laws that may differ from the general law of succession, especially in tribal and indigenous communities. The scope extends to:- Exempting entire communities or specific tribes.- Allowing customary laws to govern succession, inheritance, and property rights.- Ensuring that the application of the Act does not override community-specific practices unless explicitly notified.
Section 3 itself does not prescribe any punishment. Its primary function is to empower the government to issue notifications. However, failure to adhere to the procedures for issuing notifications or acting beyond the scope of such notifications could lead to legal challenges or invalidation of actions taken under the exemption.
In summary, Section 3 of the Indian Succession Act, 1925, serves as a constitutional and legal safeguard allowing communities with distinct customary laws to govern their succession and inheritance practices, provided the exemption is duly notified and complies with constitutional principles. It exemplifies the recognition of legal pluralism and cultural diversity within the framework of Indian law.
This Part shall not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina.
(1) Succession to the immovable property in 1[India] of a person deceased shall be regulated by the law of 1[India], wherever such person may have had his domicile at the time of his death.
(2) Succession to the movable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death.
Illustrations
(i) A, having his domicile in 1[India], dies in France, leaving movable property in France, movable property in England and property, both movable and immovable, in 1[India]. The succession to the whole is regulated by the law of 1[India].
(ii) A, an Englishman, having his domicile in France, dies in 1[India] and leaves property both movable and immovable, in 1[India]. The succession to th
A person can have only one domicile for the purpose of the succession to his movable property.
The domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled; or, if he is a posthumous child, in the country in which his father was domiciled at the time of the father’s death.
Illustration
At the time of the birth of A, his father was domiciled in England. A’s domicile of origin is in England, whatever may be the country in which he was born.
The domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled.
The domicile of origin prevails until a new domicile has been acquired.
Section 9 of the Indian Succession Act, 1925, deals primarily with the rules of succession applicable to Hindus, Buddhists, Sikhs, and Jains, specifically focusing on the succession of property of a person who dies intestate. It delineates the order of heirs entitled to inherit the estate and aims to clarify the legal framework governing succession in these communities, ensuring orderly transfer of property upon death.
Section 9 prescribes the order of succession of the property of a deceased Hindu, Buddhist, Sikh, or Jain who dies intestate. It states that the property shall devolve upon the heirs specified in the Act, starting with the Class I heirs, followed by Class II heirs, and so forth, in the absence of a valid will. The section emphasizes that the property shall pass to the heirs of the deceased in accordance with the order of succession outlined therein, unless a valid will is proved.
Section 9 itself does not prescribe any punishment. However, contravention or fraudulent claims regarding succession can lead to criminal proceedings under relevant laws, such as the Indian Penal Code or other applicable statutes, especially in cases of falsification of succession documents or fraudulent claims.
In summary, Section 9 of the Indian Succession Act, 1925, provides a clear legal framework for the inheritance of property among Hindus, Buddhists, Sikhs, and Jains in cases of intestacy, establishing a hierarchy of heirs and emphasizing the importance of community-specific succession laws. It operates in conjunction with other provisions to ensure orderly transfer of property, legal certainty, and social stability.
A man acquires a new domicile by taking up his fixed habitation in 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 by reason of his residing therein 2[the civil, military, naval or air force service of Government], or in the exercise 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 India.
(ii) A, whose domicile is in England, goes to Austria, and enters the Austrian service, intending to remain in that service. A has acquired a domicile in Austria.
Any person may acquire a domicile in 1[India] by making and depositing in some office in 1[India] appointed in this behalf by the State Government, a declaration in writing under his hand of his desire to acquire such domicile; provided that he has been resident in 1[India] for one year immediately preceding the time of his making such declaration.
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1. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”
Section 11 of the Indian Succession Act, 1925, deals with the special mode of acquiring domicile in India, which is relevant in the context of succession and the validity of wills, especially when considering jurisdiction and the applicability of the Act to persons of different domiciles. It provides a statutory method for individuals to establish domicile in India through a declaration, which influences the scope of succession laws applicable to them.
Section 11 states that any person may acquire a domicile in India by making and depositing a declaration in the prescribed office in India. This declaration is a formal act that confers domicile status, which is crucial for determining the applicable succession laws and jurisdiction in legal proceedings related to succession, wills, and inheritance.
Section 11 itself does not prescribe any punishment. However, making a false declaration or depositing a false document can attract penalties under general criminal laws, such as perjury or fraud, as per the Indian Penal Code.
Note: The above commentary synthesizes the legal principles, scope, and implications of Section 11 of the Indian Succession Act, 1925, based on authoritative legal sources and case law, emphasizing its role in establishing domicile for succession and jurisdictional purposes.
A person who is appointed by the Government of one country to be its ambassador, consul or other representative in another country does not acquire a domicile in the latter country by reason only of residing there in pursuance of his appointment; nor does any other person acquire such domicile by reason only of residing with such first-mentioned person as part of his family, or as a servant.
A new domicile continues until the former domicile has been resumed or another has been acquired.
The domicile of a minor follows the domicile of the parent from whom he derived 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 the parent, in any distinct business.
By marriage a woman acquires the domicile of her husband, if she had not the same domicile before.
A wife’s domicile during her marriage follows the domicile of her husband.
Exception.—The wife’s domicile no longer follows that of her husband if they are separated by the sentence of a competent Court, or if the husband is undergoing a sentence of transportation.
Save as hereinbefore otherwise provided in this Part, a person cannot, during minority, acquire a new domicile.
An insane person cannot acquire a new domicile in any other way than by his domicile following the domicile of another person.
If a person 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].
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1. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.
SupremeToday AI Service seems to be Down for a While!
(1) No person shall, by marriage, acquire any interest in the property of the person whom he or she marries or become incapable of doing any act in respect of his or her own property which he or she could have done if unmarried.
(2) This section—
(a) shall not apply to any marriage contracted before the first day of January, 1866;
(b) shall not apply, and shall be deemed never to have applied, to any marriage, one or both of the parties to which professed at the time of the marriage the Hindu, Muhammadan, Buddhist, Sikh or Jaina religion.
If a person whose domicile is not in 1[India] marries in 1[India] a person whose domicile is in 1[India], neither party acquires by the marriage any rights in respect of any property of the other party not comprised in a settlement made previous to the marriage, which he or she would not acquire thereby if both were domiciled in 1[India] at the time of the marriage.
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1. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.
(1) The property of a minor may be settled in contemplation of marriage, provided the settlement is made by the minor with the approbation of the minor’s father, or, if the father is dead or absent from 1[India] with the approbation of the High Court.
(2) Nothing in this section or in section 21 shall apply to any will made or intestacy occurring before the first day of January, 1866, or to intestate or testamentary succession to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina.
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1. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.
Nothing in this Part shall apply to any will made or intestacy occurring before the first day of January, 1866, or to intestate or testamentary succession to the property of any Hindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi.
Kindred or consanguinity is the connection or relation of persons descended from the same stock or common ancestor.
(1) Lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grandfather and great-grandfather, and so upwards in the direct ascending line, or between a man and his son, grandson, great-grandson and so downwards in direct descending line.
(2) Every generation constitutes a degree, either ascending or descending.
(3) A person’s father is related to him in the first degree, and so likewise is his son; his grandfather and grandson in the second degree; his great-grandfather and great-grandson in the third degree, and so on.
(1) Collateral consanguinity is that which subsists between two persons who are descended from the same stock or ancestor, but neither of whom is descended in a direct line from the other.
(2) For the purpose of ascertaining in what degree of kindred any collateral relative stands to a person deceased, it is necessary to reckon upwards from the person deceased to the common stock and then downwards to the collateral relative, a degree being allowed for each person, both ascending and descending.
For the purpose of succession, there is no distinction—
(a) between those who are related to a person deceased through his father; and those who are related to him through his mother; or
(b) between those who are related to a person deceased by the full blood, and those who are related to him by the half blood; or
(c) between those who were actually born in the lifetime of a person deceased, and those who at the 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 set forth in the table of kindred set out in Schedule I.
Illustrations
(i) The person whose relatives are to be reckoned, and his cousin-german, or first cousin, are, as shown in the table, related in the fourth degree; there being one degree of ascent to the father, and another to the common ancestor, the grandfather; and from him one of descent to the uncle, and another to the cousin-german, making in all four degrees.
(ii) A grandson of the brother and a son of the uncle, i.e., a great-nephew and a cousin-german, are in equal degree, being each four degree removed.
(iii) A grandson of a cousin-german is in the same degree as the grandson of a great-uncle, for they are both in the sixth degree of kindr
(1) This Part shall not apply to any intestacy occurring before the first day of 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 provisions of this Part shall constitute the law of 1[India] in all cases of intestacy.
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1. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.
A person is deemed to die intestate in respect of all property of which he has not made a testamentary disposition which is capable of taking effect.
Illustrations
(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 has died 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 the distribution 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 leving the sum of 2,000 rup
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 hereinafter contained in this Chapter.
1[***]
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1. Explanation omitted by Act 26 of 2002, sec. 2.
Where the intestate has left a widow—
(a) if he has also left any lineal descendants, one-thirds of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules hereinafter contained;
(b) 1[save as provided by section 33A], if he has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go 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 his widow.
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1. Ins. by Act 40 of 192
(1) Where the intestate has left a widow but no lineal descendants and the net value of his property does not exceed five thousand rupees, the whole of his property shall belong to the widow.
(2) Where the net value of the property exceeds the sum of five thousand rupees, the widow shall be entitled to five thousand rupees thereof and shall have a charge upon the whole of such property for such sum of five thousand rupees, with interest thereon from the date of the death of the intestate at 4 per cent. per annum until payment.
(3) The provision for the widow made by this section shall be in addition and without prejudice to her interest and share in the residue of the estate of such intestate remaining after payment of the said sum of five thousand rupees with interest as aforesaid, and such residue shall be distributed in accordance wit
Where the intestate has 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 are of 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 husband’s property, if he dies intestate.
The rules for the distribution of the intestate’s property (after deducting the widow’s share, if he has left a widow) amongst his lineal descendants shall be those contained in sections 37 to 40.
Where the intestate has left surviving him a child or children, but no more remote lineal descendant through a deceased child, the property shall belong to his surviving child, if there is only one, or shall be equally divided among all his surviving children.
Where the intestate has not left surviving him any child but has left a grand-child or grand-children and no more remote descendant through a deceased grand-child, the property shall belong to his surviving grand-child if there is one, or shall be equally divided among all his surviving grand-children.
Illustrations
(i) A has three children, and no more, John, Mary and Henry. They all die before the father, John leaving two children, Mary three and Henry four. Afterwards A dies intestate, leaving those nine grand-children and no descendant of any deceased grand-child. Each of his grand-children will have one-ninth.
(ii) But if Henry has died, leaving no child, then the whole is equally divided between the intestate’s five grand-children, the children of John and Mary.
In like manner the property shall go to the surviving lineal descendants who are nearest in degree to the intestate, where they are all in the degree of great-grandchildren to him, or are all in a more remote degree.
(1) If the intestate has left lineal descendants who do not all stand in the same degree of kindred to him, and the persons through whom the more remote are descended from him are dead, the property shall be divided into such a number of equal shares as may correspond with the number of the lineal descendants of the intestate who either stood in the 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 nearest degree of kindred to the intestate at his decease; and one of such shares shall be allotted in respect of each of such deceased lineal descendants; and the share allotted in respect of each of such deceased lineal descendants shall belong to his surviving child or children or
Where an intestate has left no lineal descendants, the rules for the distribution of his property (after deducting the widow’s share, if he has left a widow) shall be those contained in sections 42 to 48.
If the intestate’s father is living, he shall succeed to the property.
If the intestate’s father is dead, but the intestate’s mother is living and there are also brothers or sisters of the intestate living, and there is no child living of any deceased brother or sister, the mother and each living brother or sister 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-fourth and Mary, the sister of half blood, takes one-fourth.
Section 43 of the Indian Succession Act, 1925, deals with the rules of intestate succession, specifically focusing on the distribution of property when the deceased (intestate) has died without leaving a will. It provides the framework for inheritance in cases where the father of the deceased is dead but the mother, brothers, and sisters are alive, setting out the order of succession among these relatives.
Section 43 states that if the intestate's father is dead but the mother, brothers, and sisters are alive, then the property of the deceased is to be divided among the surviving relatives according to specified rules. The section emphasizes that the property devolves upon the mother, brothers, and sisters in the absence of a father, with specific provisions for their shares.
Section 43 applies exclusively to cases of intestate succession where the father of the deceased has predeceased him, but the mother and siblings are alive. It delineates the order of inheritance among maternal relatives, ensuring a clear legal framework for property distribution in such scenarios. It is part of the broader framework of succession laws, which distinguish between testamentary and intestate succession.
Section 43 itself does not prescribe any punishment. It is a procedural provision that governs the distribution of property in specific circumstances of intestate succession. Violations or disputes regarding its application are typically resolved through civil courts, and penalties are not explicitly provided under this section.
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 the intestate’s lifetime are also living, then the mother and each living brother or sister, and the living child or children 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 taken if 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
If the intestate’s father is dead, but the intestate’s mother is living, and the brothers and sisters are all dead, but all or any of them have left children who survived the intestate, the mother and the child or children of each deceased brother or sisters shall be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate’s death.
Illustration
A, the intestate, leaves no brother or sister but leaves his mother and one child of a deceased sister, Mary and two children of a deceased brother George. The mother takes one-third, the child of Mary takes one-third, and the children of George divide the remaining one-third equally between them.
If the intestate’s father is dead, but the intestate’s 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 the intestate has left neither lineal descendant, nor father, nor mother, the property shall be divided equally between his brothers and sisters and the child or children of such of them as may have died before him, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate’s death.
Where the intestate has left neither lineal descendant, nor parent, nor brother, nor sister, his property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him.
Illustrations
(i) A, the intestate, has left a grandfather, and a grandmother and no other relative standing in the same or a nearer degree of kindred to him. They, being in the second degree, will be entitled to the property in equal shares, 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 other relative standing in the same or a nearer degree of kindred to him. All of these being in the third degree will take equal shares.
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Where a distributive share in the property of a person who has died intestate is claimed by a child, or any descendant of a child, of such person, no money or other property which the intestate may, during his life, have paid, given or settled to, or for the advancement of, the child by whom or by whose descendant the claim is made shall be taken into account in estimating such distributive share.
For the purpose of intestate succession among Parsis—
(a) there is no distinction between those who were actually born in the lifetime of a person deceased and those who at the date of his death were only conceived in the womb, but who have been subsequently born alive;
(b) a lineal descendant of an intestate who has died in the lifetime of the intestate without leaving a widow or widower or any lineal descendant or 2[a widow or widower of any lineal descendant] shall not be taken into account in determining the manner in which the property of which the intestate has died intestate shall be divided; and
(c) where a 3[widow or widower of any relative] of an intestate has married again in the lifetime of the intestate, 4[such widow or widower] shall not be entitled to rec
Section 50 of the Indian Succession Act, 1925, lays down the general principles governing intestate succession, particularly for Hindus, Sikhs, Jains, Buddhists, and Parsis. It provides a framework for the distribution of property when a person dies without a will, emphasizing the importance of kinship and customary laws in inheritance.
Section 50 states that:- There is no distinction between those who were actually born in the lifetime of the deceased and those who were only conceived in the womb but born alive thereafter.- The property of an intestate is to be divided among the heirs according to the rules of succession applicable to their religion and community.- The section also incorporates the principles of intestate succession, including the order of kinship and the rights of various relatives.
Note: This commentary synthesizes legal principles derived from the Indian Succession Act, 1925, case law, and legal commentaries, emphasizing the importance of Section 50 in the framework of succession law.
(1) Subject to the provisions of sub-section (2), the property of which a Parsi dies intestate shall be divided,—
(a) where such Parsi dies leaving a widow or widower and children, among the widow or widower, and children so that the widow or widower and each child receive equal shares;
(b) where such Parsi dies leaving children, but no widow or widower, among the children in equal shares.
(2) Where a Parsi dies leaving one or both parents in addition to children or widow or widower and children, the property of which such Parsi dies intestate shall be so divided that the parent or each of the parents shall receive a share equal to half the share of each child.]
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1. Subs. by Act 5
[Repealed.]1
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1. New section 51 has been substituted for sections 51 and 52 by Act 51 of 1991, sec. 3.
In all cases where a Parsi dies leaving any lineal descendant, if any child of such intestate has died in the lifetime of the intestate, the division of the share of the property of which the intestate has died intestate which such child 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 with the 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 widower of a lineal descendant but no lineal descendant, the residue of his share after such distribution has been made shall be divided in accordance with the provisions of this Chapter as property of which the intestate has die
Where a Parsi dies without leaving any lineal descendant but leaving a widow or widower or a widow or widower of a lineal descendant, the property 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 lineal descendant, his widow or her widower shall receive one-third of the said property and the widow or widower of any lineal decendant shall receive another one-third or if there is more than one such widow or widower of lineal descendants, the last mentioned one-third shall be divided equally among them;
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When a Parsi dies leaving neither lineal descendants nor a widow or widower nor 1[a widow or widower of any lineal descendant], his or her next-of-kin, in the order set forth in Part II of Schedule II, shall be entitled to succeed to the whole of the property of which he or she dies intestate. The next-of-kin standing first in Part II of that Schedule shall be preferred to those standing second, the second to the third, and so on in succession, provided that the property shall be so distributed that 2[each male and female standing in the same degree of propinquity shall receive equal shares].
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1. Subs. by Act 51 of 1991, sec. 5.
2. Subs. by Act 51 of 1991, sec. 5.
Where there is no relative entitled to succeed under the other provisions of this Chapter to the property of which a Parsi has died intestate, the said property shall be divided equally among those of the intestate’s relatives who are in the nearest degree of kindred to him.]
The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply—
(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b) to all such Wills and codicils made outside those territories and limits so far as relates to immoveable 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 of January, 1927, to which
(1) The provisions of this Part shall not apply to testamentary succession to the property of any Muhammadan nor, save as provided by section 57, to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jaina; nor shall they apply to any Will made before the first day of January, 1866.
(2) Save as provided in sub-section (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of 1[India] applicable to all cases of testamentary succession.
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1. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.
Every person of sound mind not being a minor may dispose of his property by Will.
Explanation 1.—A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2.—Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3.—A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4.—No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
Illustrations
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Section 59 of the Indian Succession Act, 1925, lays down the fundamental criteria for a person to be legally competent to make a will. It is a vital provision ensuring that only individuals with the requisite mental capacity and legal standing can dispose of their property through testamentary documents. The section emphasizes the importance of soundness of mind, age, and absence of undue influence, thereby safeguarding the integrity of testamentary dispositions.
Section 59 states that:- Every person of sound mind and not a minor may dispose of his property by will.- It includes explanations that clarify the scope: - A married woman can dispose of property she could alienate during her lifetime. - Persons who are deaf, dumb, or blind are capable of making a will if they understand what they are doing. - Persons who are ordinarily insane may make a will during intervals when they are of sound mind. - No person can make a will when in such a state of mind (due to intoxication, illness, or other causes) that they do not know what they are doing.
Section 59 itself does not prescribe punishment but sets the legal criteria for validity. Wills made by persons not of sound mind or minors are invalid. Challenges based on incapacity or undue influence can lead to the will being declared void or invalid in a court of law.
Section 59 of the Indian Succession Act, 1925, provides a comprehensive framework for determining the competence of individuals to make wills. It underscores the importance of mental capacity, age, free will, and proper attestation. Courts require strict proof of these elements, especially when suspicious circumstances arise, to uphold the validity of testamentary documents. The section aims to prevent fraudulent or coerced wills, ensuring that only genuine dispositions are recognized legally.
A father, whatever his age may be, may by Will appoint a guardian or guardians for his child during minority.
A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.
Illustrations
(i) A, falsely and knowingly, represents to the testator, that the testator’s only child is dead, or that he has done some undutiful act and thereby induces the testator to make a will in his, A’s favour; such Will has been obtained by fraud, and is invalid.
(ii) A, 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 the imprisonment.
(iv) A, threatens to shoot B, or to burn his ho
Section 61 of the Indian Succession Act, 1925, is a crucial provision governing the validity of wills, especially focusing on circumstances where a will may be rendered void due to undue influence, fraud, coercion, or importunity. It emphasizes the importance of free will and proper execution in testamentary dispositions and provides grounds for challenging a will’s validity.
Section 61 states that:- A will or any part of it, the making of which has been caused by fraud, coercion, or importunity that takes away the free agency of the testator, is void.- It underscores that any undue influence or improper pressure that overpowers the free will of the testator invalidates the will.- The section also clarifies that influence exercised in a legitimate manner, such as persuasion or appeals to affection, do not constitute undue influence.
This comprehensive overview highlights that Section 61 of the Indian Succession Act, 1925, provides the legal foundation to scrutinize wills for undue influence, coercion, or fraud, ensuring that only those wills made freely and voluntarily are upheld in law. The burden of proof lies with the proponent, and suspicious circumstances must be convincingly dispelled to validate a testamentary document.
A Will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by Will.
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1[or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:—
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testat
Section 63 of the Indian Succession Act, 1925, outlines the requirements for the execution of unprivileged wills. This section is crucial in determining the validity of a will and ensuring that the testator's intentions are honored while also protecting the rights of potential heirs.
Section 63 mandates that every testator must execute their will in the presence of at least two witnesses, who must attest the will by signing it in the presence of the testator. This section emphasizes the need for proper execution and attestation to validate a will.
The scope of Section 63 extends to all unprivileged wills, which are wills that do not benefit from special provisions applicable to privileged wills (e.g., those made by soldiers). The section ensures that the execution of wills is conducted with a level of formality that protects against fraud and ensures the testator's intentions are clear.
While Section 63 itself does not prescribe specific punishments, failure to comply with its requirements can result in the will being deemed invalid, leading to intestacy and the distribution of the estate according to statutory succession laws.
This commentary provides a comprehensive overview of Section 63 of the Indian Succession Act, 1925, highlighting its importance in the legal framework governing wills and succession in India.
If a testator, in a Will or codicil duly attested, refers to any other document then actually written as expressing any part of his intentions, such document shall be deemed to form a part of the Will or codicil in which it is referred to.
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 of eighteen years, dispose of his property by a Will made in the manner provided in section 66. Such Wills are called privileged Wills.
Illustrations
(i) A, a medical officer attached to a regiment is actually employed in an expedition. He is a soldier actually employed in an expedition, and can make a privileged Will.
(ii) A is at sea in a merchant-ship of which he is the purser. He is a mariner, and, being at sea, can make a privileged Will.
(iii) A, a soldier service in the field against insurgents, is a soldier engaged in actual warfare, and as such can make a privileged W
(1) Privileged Wills may be in writing, or may be made by word of mouth.
(2) The execution of privileged Wills shall be governed by the following rules:—
(a) The Will may be written wholly by the testator, with his own hand. In such case it need not be signed or attested.
(b) It may be written wholly or in part by another person, and signed by the testator. In such case it need not be attested.
(c) If the instrument purporting to be a Will is written wholly or in part by another person and is not signed by the testator, it shall be deemed to be his Will, if it is shown that it was written by the testator’s directions or that he recognised it as his Will.
(d) If it appears o
A Will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting or the wife or husband of such person or any person claiming under either of them.
Explanation.—A legatee under a Will does not lose his legacy by attesting a codicil which confirms the Will.
Section 67 of the Indian Succession Act, 1925, addresses the implications of a bequest made to an attesting witness of a will. This provision is crucial in ensuring the integrity of testamentary dispositions and preventing potential conflicts of interest that may arise when a witness stands to gain from the will they are attesting.
Section 67 states that a will shall not be deemed insufficiently attested by reason of any benefit given to an attesting witness or their spouse. However, the bequest to the attesting witness or their spouse is rendered void.
The scope of Section 67 is limited to the validity of bequests made to attesting witnesses and does not extend to other aspects of will execution or attestation. It primarily aims to prevent undue influence or coercion in the execution of wills.
There are no specific punishments outlined in Section 67 for violations. However, if a will is found to be improperly executed or attested, it may be declared invalid, leading to the intestate succession of the deceased's estate.
No person, by reason of interest in, or of his being an executor of, a Will shall be disqualified as a witness to prove the execution of the Will or to prove the validity or invalidity thereof.
Section 68 of the Indian Succession Act, 1925, along with Section 68 of the Indian Evidence Act, 1872, lays down the legal framework for proving the due execution of a Will that is required by law to be attested. It emphasizes the importance of attestation by witnesses and the procedure to establish the authenticity of testamentary documents in court.
Section 68 of the Indian Evidence Act states that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called to prove its execution, provided such witness is alive, capable of giving evidence, and subject to the process of the court. It also clarifies that for registered documents, the requirement of calling witnesses may be waived unless their execution is specifically denied.
While Section 68 itself does not prescribe a punishment, failure to produce attesting witnesses or prove proper execution can lead to the rejection of the Will's proof, rendering it inadmissible or invalid in legal proceedings. The courts may also draw adverse inferences if statutory requirements are not met.
This concise commentary underscores the importance of strict compliance with statutory provisions for the proof of Will execution, especially the necessity of examining at least one attesting witness as mandated by law, and the courts' vigilance to prevent fraudulent testamentary documents.
Every Will shall be revoked by the marriage of the maker, except a Will made in exercise of a power of appointment, when the property over which the power of appointment is exercised would not, in default of such appointment, pass to his or her executor or administrator, or to the person entitled in case of intestacy.
Explanation.—Where a man is invested with power to determine the disposition of property of which he is not the owner, he is said to have power to appoint such property.
No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.
Illustrations
(i) A has made an unprivileged Will. Afterwards, A makes another unprivileged Will which purports to revoke the first. This is a revocation.
(ii) A has made an unprivileged Will. Afterwards, A being entitled to make a privileged Will makes a privileged Will, 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 any effect, except so far as the words or meaning of the Will have been thereby rendered illegible or undiscernible, unless such alteration has been executed in like manner as hereinbefore is required for the execution of the Will:
Provided that the Will, as so altered, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses is made in the margin or on some other part of the Will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the Will.
Legal Comments
"Section 71" - Bar on alterations: Obliteration/interlineation in unprivileged will not have effect except as allowed by Section 71; evidence may be needed to prove altered will if the attestation is compromised - [Hitesh Bhardwaj VS Govt. Of NCT Of Delhi And Another]
"Section 63(c) mandatory attestation" - Will must be attested by two or more witnesses who saw testator sign or sign in presence; strict compliance required; mere registration or signature proof is insufficient absent proper attestation - [Janki Narayan Bhoir VS Narayan Namdeo Kadam]
"Proof of execution via Section 68 E.A." - Execution of will required to be proved by at least one attesting witness if alive; but two witnesses mandatory under Section 63; Section 68 arranges proof mechanism, not substitution for attestation failure - [Janki Narayan Bhoir VS Narayan Namdeo Kadam]
"Ambit of Section 71" - Section 71 allowed where attesting witness denies or cannot recollect execution; permits proving by other evidence, but not as a blanket substitute when no attesting witnesses are properly examined - [Janki Narayan Bhoir VS Narayan Namdeo Kadam]
"Two-attesting-witness rule strictness" - Supreme Court repeatedly holds that attestation by two or more witnesses is mandatory; failure to prove attestation with proper witnesses defeats validity, though Section 68 may allow alternative proofs if warranted by evidence, especially when witnesses deny - [Nainamalai (Died) VS S. Ramasamy], [TARA SUNDARI GHOSH (DEED. ), RAJENDRA NATH GHOSH VS SADHANA BALA BANERJEE]
"Scribe as attestation" - Scribe alone cannot substitute for attesting witnesses; attestation requires two witnesses who saw testator sign or acknowledge; reliance on scribe evidence must be corroborated by proper attestation - [Avira Joseph VS Joseph Mathew], [Naveen Chander Kapur VS State]
"Burden of proof on propounder" - Propounder must establish due execution and attestation and dispel suspicious circumstances; where suspicious factors exist, heavier burden to prove genuineness - [Ambika Prasad @ Ambika Prasad Pandey vs Shyam Bihari], [Pranati Ghosh VS Anil Kumar Ghosh]
"Suspicious circumstances framework" - Where execution is surrounded by suspicions (e.g., undue influence, unnatural dispositions, last-minute alterations), court requires cogent evidence addressing such suspicions; mere signature does not suffice - [Gaurav Singh VS General Public], [Kamalam (Died) VS Sasikala]
"Parties and evidence in partition suits" - In partitions involving wills, the onus to prove execution remains with the propounder; improper or absent attestation leads to remand or dismissal of partition claims - [Lakshmi VS Parvatham], [Kamalam (Died) VS Sasikala]
"Effect of obliteration/alteration (Section 71)" - Alterations without compliance with Section 71 (i.e., no express acknowledgment by testator and witnesses) render alterations ineffective; if alterations are proven read in presence of testator, they may affect validity but require corroboration - [Avira Joseph VS Joseph Mathew],
"Judicial approach to probate petitions (Section 276, 299)" - Probate courts treat will proof with due attestation and lack of suspicious circumstances as essential; admitted errors in procedure do not cure void attestation; reliance on surrounding circumstances must be grounded in statutory proof - [Ajay Kumar VS State], [Rajnish Tuli VS General Public]
"Attestation importance" - Attestation is central to validity; if attesting witnesses deny or fail to recollect, Section 71 allows other evidence but only if the required prerequisites under Section 68 are otherwise unmet; courts should not bypass the mandatory attestation standard - [Tapati Patra VS Swarup Das], [Nainamalai (Died) VS S. Ramasamy]
"Registration vs. execution" - Registration of a will does not automatically prove execution; registration is not a substitute for compliance with Section 63 and 68; the propounder must prove due execution regardless of registration status - [P.D. Parameswaran Pillai Vs T.M.Ramachandran Nair S/o. K.V. Narayanan Pillai], [Dhani Ram (Died) through LRs. VS Shiv Singh]
"Interplay with Evidence Act" - Sections 68, 69, 70, 71 of Evidence Act interact with Section 63; courts must apply them to ensure credible attestation and allow/limit other evidence accordingly - [SHOBHANA SAHADEV SHAH VS SANGEETA PORBANDERWALA], [Subbarayar VS Subbammal]
"Admissibility of other evidence under Section 71" - Section 71 enables alternative evidence but is not a dodge for failure to prove attestation; must satisfy core requirements and not be misused to circumvent mandatory proof - [TARA SUNDARI GHOSH (DEED. ), RAJENDRA NATH GHOSH VS SADHANA BALA BANERJEE], [K. R. Sethupathy VS Parvathy]
"Two-witness attestation essential for last will" - The jurisprudence consistently affirms two-witness attestation as essential; any deviation triggers heightened scrutiny and often reversal of trial/Appellate findings - [Nainamalai (Died) VS S. Ramasamy], [Narain Singh Etc. VS State]
"Role of the court’s conscience test" - In cases with suspicious circumstances, judges examine the totality of evidence and may give probate if the propounder convincingly dispels doubts; otherwise probate denied - [Gaurav Singh VS General Public], [M. Kuppusamy Naicker VS M. Mani]
"Scribe vs attesting witness distinction clarified" - Courts disallow treating a scribe as attesting witness for Section 63(c); attestation remains the province of witnesses who witnessed execution, not merely a scribal act - [Avira Joseph VS Joseph Mathew], [Veerabhadrayya S/o Gurupadayya Nandayyagol VS MytraBai W/o Rachayya Mallikarjunmath]
"Precedent: Janki Narayan Bhoir reliance" - The Supreme Court in Janki Narayan Bhoir clarifies that even though one attesting witness may prove execution under Section 68, the mandatory requirement of two attesting witnesses remains; Section 71 cannot completely override 68 when essential witnesses are available - [Nainamalai (Died) VS S. Ramasamy], [Janki Narayan Bhoir VS Narayan Namdeo Kadam]
"Practical guidance for practitioners" - When alleging alteration, ensure Section 71 compliance and call all relevant attesting witnesses; avoid relying solely on registration or hearsay; prepare to address suspicious circumstances with cogent evidence - [Avira Joseph VS Joseph Mathew], [Ambika Prasad @ Ambika Prasad Pandey vs Shyam Bihari]
"Outcome orientation" - Courts may dismiss or remand petitions where Will proof fails to meet Section 63/68/71 standards; where evidence demonstrates due execution with credible attestation, probate or Letters of Administration may be granted - [Narain Singh Etc. VS State], [01000007340]
"Key take-away for Section 71 applicability" - Section 71 is a safety valve rather than a tool to bypass mandatory attestation; its proper use requires denial/recollection by the attesting witness and availability of other credible evidence to prove execution - [Hitesh Bhardwaj VS Govt. Of NCT Of Delhi And Another], [Girindra Kishore Pal Choudhury vs Ssuparna Pal Chowdhury]
A privileged Will or codicil may be revoked by the testator by an unprivileged Will or codicil, or by any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged Will, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.
Explanation.—In order to the revocation of a privileged Will or codicil by an act accompanied by such formalities as would be sufficient to give validity to a privileged Will, it is not necessary that the testator should at the time of doing that act be in a situation which entitles him to make a privileged Will.
(1) No unprivileged Will or codicil, nor any part thereof, which has been revoked in any manner, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same.
(2) When any Will or codicil, which has been partly revoked and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as has been revoked before the revocation of the whole thereof, unless an intention to the contrary is shown by the Will or codicil.
Section 73 of the Indian Succession Act, 1925 addresses the revival of unprivileged wills and codicils that have been revoked. This section is crucial in determining the validity of a will that has been previously revoked and the conditions under which it can be revived.
Section 73 states that no unprivileged will or codicil, nor any part thereof, which has been revoked in any manner, shall be revived otherwise than by the re-execution thereof. This means that a revoked will cannot simply be reinstated without following the proper legal procedures.
The scope of Section 73 is limited to unprivileged wills and codicils. It does not apply to privileged wills, which may have different rules regarding revival. The section emphasizes the necessity of formalities in the execution of wills to ensure their validity.
Section 73 does not prescribe any specific punishment for violations. However, failing to adhere to its provisions may result in the will being deemed invalid, leading to disputes over the deceased's estate.
Revocation and Revival - Section 73 mandates that a revoked unprivileged will can only be revived through re-execution, ensuring clarity in testamentary intentions - .
Legal Formalities - The requirement for re-execution underlines the importance of adhering to legal formalities in the creation of wills, which is essential for their validity - .
Judicial Interpretation - Courts have interpreted Section 73 to reinforce the necessity of clear testamentary intent, which must be established through proper execution - [ "Savita Dattatraya Karandikar of Bombay VS Nishikant Sadashiv Karandikar"].
Impact on Probate - The revival of a will under Section 73 can significantly impact probate proceedings, as only a validly executed will can be admitted to probate - [ "AJOY KUMAR DAS VS KALPANA DAS"].
Expert Testimony - In disputes regarding the validity of a will, courts may consider expert testimony on handwriting to ascertain the genuineness of signatures, as allowed under Section 73 of the Evidence Act - [ "AJOY KUMAR DAS VS KALPANA DAS"].
Burden of Proof - The burden of proof lies on the propounder of the will to establish its validity, including the conditions of execution and the testator's mental capacity - [ "K. L. Malhotra through his legal heirs VS Sudershan Kumari"].
Minor Contradictions - Courts have held that minor contradictions in witness testimony do not necessarily invalidate a will, provided the essential requirements of execution are met - [ "K. L. Malhotra through his legal heirs VS Sudershan Kumari"].
Comparison of Signatures - Courts may compare disputed signatures with admitted signatures to determine authenticity, as per Section 73 of the Evidence Act - [ "N. Radhabai VS Maruthambal"].
Discretion of Courts - Courts have discretion in appointing handwriting experts to assist in determining the genuineness of signatures, but such opinions are not binding - [ "AJOY KUMAR DAS VS KALPANA DAS"].
Legal Framework - Section 73 operates within a broader legal framework that includes the Evidence Act, which governs the admissibility of evidence in probate cases - [ "M. A. Saldanha Adult D/O Late Gregory Coelho VS Ruth Lobo W/o Major G T I Lobo"].
Family Settlements - The validity of family settlements may also be scrutinized in light of Section 73, particularly if they involve the revival of previously revoked wills - [ "M. A. Saldanha Adult D/O Late Gregory Coelho VS Ruth Lobo W/o Major G T I Lobo"].
Judicial Precedents - Judicial precedents emphasize the importance of following the statutory requirements for will execution to avoid disputes over estate distribution - [ "N. Radhabai VS Maruthambal"].
Legal Certainty - The strict requirements for reviving a will under Section 73 provide legal certainty and protect the intentions of the testator - .
Implications for Executors - Executors must be aware of the implications of Section 73 when managing estates, particularly in cases involving revoked wills - [ "Nira Kanta Chutia VS Bedoi Chutiani and another"].
Role of the Advocate Commissioner - The appointment of an Advocate Commissioner to obtain expert opinions on disputed wills is a procedural safeguard that aligns with the principles of Section 73 - [ "Balavelumani & Others VS A. Thulasiammal & Others"].
Legal Clarity - Section 73 contributes to legal clarity regarding the status of revoked wills, ensuring that only properly executed documents are considered valid - .
Challenges in Probate - Challenges to the validity of a will often hinge on the interpretation of Section 73, making it a focal point in probate litigation - [ "N. Radhabai VS Maruthambal"].
Legislative Intent - The legislative intent behind Section 73 is to prevent ambiguity and ensure that the testator's wishes are honored through proper legal channels - .
Future Implications - The principles established in Section 73 may influence future legislative reforms concerning testamentary succession and the handling of wills - .
Public Policy Considerations - The strict requirements for reviving wills reflect public policy considerations aimed at preventing fraud and ensuring the integrity of testamentary documents - .
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.
Section 74 of the Indian Succession Act, 1925, addresses the requirements for the wording of wills. It emphasizes that the intention of the testator is paramount and does not necessitate the use of technical terms or legal jargon. This section plays a crucial role in the interpretation and validity of wills, ensuring that the testator's wishes are honored even if expressed in simple language.
Section 74 states: "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." This provision allows for flexibility in the drafting of wills, focusing on the clarity of the testator's intent rather than strict adherence to legal formalities.
The scope of Section 74 extends to all wills executed under the Indian Succession Act, allowing for a broad interpretation of what constitutes a valid will. It applies to various forms of testamentary documents, ensuring that the testator's intent is the guiding principle in determining the validity of a will.
Section 74 does not prescribe any specific punishment or penalty. Instead, it provides a framework for interpreting wills, focusing on the validity of the document based on the testator's intent rather than on punitive measures.
This commentary provides an overview of Section 74 of the Succession Act, 1925, highlighting its significance in the context of wills and testamentary succession.
For the purpose of determining questions as to what person or what property is denoted by any words used in a Will, a Court shall inquire into every material fact relating to the persons who claim to be interested under such Will, the property which is claimed as the subject of disposition, the circumstances of the testator and of his family, and into every fact a knowledge of which may conduct to the right application of the words which the testator has used.
Illustrations
(i) A, by his Will, bequeaths 1,000 rupees to his eldest son or to his youngest grand-child, 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
(1) Where the words used in a Will to designate or describe a legatee or a class of legatees sufficiently show what is meant, an error in the name or description shall not prevent the legacy from taking effect.
(2) A mistake in the name of a legatee may be corrected by a description of him, and a mistake in the description of a legatee may be corrected by the name.
Illustrations
(i) A bequeaths a legacy “to Thomas, the second son of my brother John”. The testator has an only brother named John, who has no son named Thomas, but has a second son whose name is William. William will have the legacy.
(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
Where any word material to the full expression of the meaning has 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 his daughter B. A will take a legacy of five hundred rupees.
If the thing which the testator intended to bequeath can be sufficiently identified from the description of it given in the Will, but some parts of the description do not apply, such parts of the description shall be rejected as erroneous, and the bequest shall take effect.
Illustrations
(i) A bequeaths to B “my marsh-lands lying in L and in the occupation of X”. The testator had marsh-lands lying in L but had no marsh-lands in the occupation of X. The words “in the occupation of X” shall be rejected as erroneous, and the marsh-lands 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 and not a zamindari. The taluq passes by this bequest.
If a Will mentions several circumstances as descriptive of the thing which the testator intends to bequeath, and there is any property of his in respect of which all those circumstances exist, the bequest shall be considered as limited to such property, and it shall not be lawful to reject any part of the description as erroneous, because the testator had other property to which such part of the description does not apply.
Explanation.—In judging whether a case falls within the meaning of this section, any words which would 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-lands lying in L, some of which were in the occupation of X, and so
Where the words of a Will are unambiguous, but it is found by extrinsic evidence that they admit of application, one only of which can have been intended by the testator, extrinsic evidence may be taken to show which of these applications was intended.
Illustrations
(i) A man, having two cousins of the name of Mary, bequeaths a sum of money to “my cousin Mary”. It appears that there are two persons, each answering the description in the Will. That description, therefore, admits of two applications, only one of which can have been intended by the testator. Evidence is admissible to show which of the two applications was intended.
(ii) A, by his Will leaves to B “my estate called Sultanpur Khurd”. It turns out that he had two estates called Sultanpur Khurd. Evidence is admissible to show which s
Where there is an ambiguity or deficiency on the face of a Will, no extrinsic evidence as to the intentions of the testator shall be admitted.
Illustrations
(i) A man has an aunt, Caroline, and a cousin, Mary, and has no aunt of the name of Mary. By his Will he bequeaths 1,000 rupees to “my aunt, Caroline” and 1,000 rupees to “my cousin, Mary” and afterwards bequeaths 2,000 rupees to “my before-mentioned aunt, Mary”. There is no person to whom the description given in the will can apply, and evidence is not admissible to show who was meant by “my before-mentioned aunt, Mary”. The bequest 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 admissible to show what name the testator in
The meaning of any clause in a Will is to be 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 the whole of his property to A. The effect of the several clauses taken together is to vest the specific fund or property in A for life, and after his decease in B; it appearing from the bequest to B that the testator meant to use in a restricted sense 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 estate to A, and in another part of his will bequeaths Black Acre to B, the latter bequest is to be read as an exceptio
General words may be understood in a restricted sense where it may be collected from the Will that the testator meant to use them in a restricted sense; and words may be understood in a wider sense than that which they usually bear, where it may be collected from the other words of the will that the testator meant 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 farm in the occupation of B consists of marsh-lands in L, and the testator also has other marsh-lands in L. The general words, “all my marsh-lands in L”, are restricted by the gift to A. A takes the whole of the farm in the occupation of B, including that portion of the farm which consists of marsh-lands in L.
(ii) The testator (a
Where a clause is susceptible of two meanings according to one of which it has some effect, and according to the other of which it can have none, the former shall be preferred.
No part of a Will shall be rejected as destitute of meaning if it is possible to put a reasonable construction upon it.
If the same words occur in different parts of the same Will, they shall be taken to have been used everywhere in the same sense, unless a contrary intention appears.
The intention of the testator shall not be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible.
Illustrations
The testator by a Will made on his death-bed bequeathed all his property to C.D. for life and after his decease to a certain hospital. The intention of the testator cannot take effect to its full extent because the gift to the hospital is void 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 are irreconcileable, 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 his Will 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 house shall be sold and the proceeds invested for the benefit of B, the latter disposition will prevail.
A Will or bequest not expressive of any definite intention 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 the Schedule” and no Schedule is found, or “I bequeath ‘money’, ‘wheat’, ‘oil’” or the like, without saying how much, this is void.
The description contained in a Will of property, the subject of gift, shall, unless a contrary intention appears by the Will, be deemed to refer to and comprise the property answering that description at the death of the testator.
Unless a contrary intention appears by the Will, a bequest of the estate of the testator shall be construed to include any property which he may have power to appoint by Will to any object he may think proper, and shall operate as an execution of such power; and a bequest of property described in a general manner shall be construed to include any property to which such description may extend, which he may have power to appoint by Will to any object he may think proper, and shall operate as an execution of such power.
Where property is bequeathed to or for the benefit of certain objects as a specified person may appoint or for the benefit of certain objects in such proportions as a specified person may appoint, and the Will does not provide for the event of no appointment being made; if the power given by the Will is not exercised, the property belongs to all the objects of the power in equal shares.
Illustrations
A, by his Will bequeaths a fund to his wife, for her life, and directs that at her death it shall be divided among his children in such proportions as she shall appoint. The widow dies without having made any appointment. The fund will be divided equally among the children.
Where a bequest is made 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 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 intestate in respect of it, leaving assets for 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 if A 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
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 intestate in 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 may remain unpaid: if there be any surplus B will pay it to those persons who at A’s death would have been entitled to receive any property of A’s which might remain after payment of his debts, or to the representatives of such p
Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the Will that only a restricted interest was intended for him.
Where a property is bequeathed to a person with a bequest in the alternative to another person or to a class of persons, then, if a contrary intention does not appear by the Will, the legatee first named shall be entitled to the legacy if he is alive at the time when it takes effect; but if he is then dead, the person or class of persons named in the second branch of the alternative shall take the legacy.
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 goes to 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.
Where property is bequeathed to a person, and words are added which describe a class of persons but do not denote them as direct objects of a distinct and independent gift, such person is entitled to the whole interest of the testator therein, 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,
&nbs
Where a bequest is made to a class of persons under a general description only, no one to whom the words of the description are not in their 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 “grand-children” applies only to lineal descendants in the second degree of the person whose “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 of brothers 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 to
In the absence of any intimation to the contrary in a Will, the word “child”, the word “son”, the word “daughter” or any word which expresses relationship, is to be understood as denoting only a legitimate relative, or, where there is no such legitimate relative, a person who has acquired, at the date of the Will, the reputation of being such relative.
Illustrations
(i) A having three children, B, C and D, of whom B and C are legitimate and D is illegitimate leaves his property to 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 neice and having no legitimate niece, bequeaths a sum of money to his niece. The illegitimate niece is entitled to
Where a Will purports to make two bequests to the same person, and a question arises whether the testator intended to make the second bequest instead of or in addition to the first; if there is nothing in the Will to show what he intended, the following rules shall have effect in determining the construction to be put upon the Will:—
(a) If the same specific thing is bequeathed twice to the same legatee in the same Will or in the Will and again in the codicil, he is entitled to receive that specific thing only.
(b) Where one and the same Will or one and the same codicil purports to make, in two places, a bequest to the same person of the same quantity or amount of anything, he shall be entitled to one such legacy only.
(c) Where two legacies of unequal amount are given
A residuary legatee may be constituted by any words that show an intention on the part of the testator that the person designated shall take the surplus or residue of his property.
Illustrations
(i) A makes her Will, consisting of several testamentary papers, in one of which are contained the following words:—‘‘I think there will be something left, after all funeral expenses, etc., to give to B, now at school, towards equipping 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 in my banker’s hands to defray and discharge my debts, which I hereby, desire B to do, and keep the residue for her own use and pleasure”. B is constituted the residuar
Under a residuary bequest, the legatee is entitled to all property belonging to the testator at the time of his death, of which he has not made any other testamentary disposition which is capable of taking effect.
Illustration
A by his Will bequeaths certain legacies, of which one is void under section 118, and another lapses by the death of the legatee. He bequeaths the residue of his property to B. After the date of his Will A purchases a zamindari, which belongs to him at the time of his death. B is entitled to the two legacies and the zamindari as part of the residue.
If a legacy is given in general terms, without specifying the time when it is to be paid, the legatee has a vested interest in it from the day of the death of the testator, and, if he dies without having received it, it shall pass to his representatives.
(1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator’s property, unless it appears by the Will that the testator intended that it should go to some other person.
(2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator.
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 is made. The legacy to A and his children lapses.
(iii) A legacy is given to A, and, in case of his
If a legacy is given to two 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 to legatees in words which show that the testator intended to give them distinct shares of it, then, if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of the testator’s property.
Illustration
A sum of money is bequeathed to A, B and C, to be equally divided among them. A dies before the testator. B and 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 the general residue bequeathed by the Will, that share shall go as undisposed of.
Illustration
The testator bequeaths the residue of his estate to A, B and C, to be equally divided between them. A dies before 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 the testator, and the legatee dies in the lifetime of the testator, but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the Will.
Illustration
A makes his Will, by which he bequeaths a sum of money to his son, B, for his own absolute use and benefit. B dies before A, leaving a son, C, who survives A, and having made his Will whereby he bequeaths all his property to his widow, D. The money goes to D.
Where a bequest is made to one person for the benefit of another, the legacy does not lapse by the death, in the testator’s lifetime, of the person to whom the bequest is made.
Where a bequest is made simply to a described class of persons, the thing bequeathed shall go only to such as are alive at the testator’s death.
Exception.—If property is bequeathed to a class of persons described as standing in a particular degree of kindred to a specified individual, but their possession of it is deferred until a time later than the death of the testator by reason of a prior bequest or otherwise, the property shall at that time go to such of them as are then alive, and to the representatives of any of them who have died since the death of testator.
Illustrations
(i) A bequeaths, 1,000 rupees to “the children of B” without saying when it is to be distributed among them. B had died previous to the date of the Will, leaving three children, C, D and E. E died after the date of t
Where a bequest is made to a person by a particular description, and there is no person in existence at the testator’s death who answers the description, the bequest is void.
Exception.—If property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise; and if a person answering the description is alive at the death of the testator, or comes into existence between that event, and such later time, the property shall, at such later time, go to that person, 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 beq
Where a bequest is made to a person not in existence at the time of the testator’s death, subject to a prior bequest contained in the Will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.
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 the latter 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 a bequest to a person not in existence at the testator’s death. It is not a bequest of the whole interest that remains to the testator. 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 th
No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the life-time of one or more persons living at the testator’s death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.
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 the sons 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 the age of 25 may be a son born after the death of the testator; such son may not attain 25 until more than 18 years have elapsed from the death of the longer liver of A and B; and the vesting of the fund may thus be delayed beyond the lifetime of A and B and the minority of the so
If a bequest is made to a class of persons with regard to some of whom it is inoperative by reason of the provisions of section 113 or section 114, such bequest shall be 1[void in regard to those persons only, and not 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. A survives the testator, and has some children living at the testator’s death. Each child of A’s living at the testator’s death must attain the age of 25 (if at all) within the limits allowed for a bequest. But A may have children after the testator’s decease, some of whom may not attain the age of 25 until more than 18 years have elapsed after the decease of A. The bequest to A’s children, therefore, is inoperative as to any child born after the testator’s death; 2[and
Where by reason of any of the rules contained in sections 113 and 114, any bequest in favour of a person or of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the same Will and intended to take effect after or upon failure of such prior bequest is also void.]
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 take effect after the bequest to such of the sons of A as shall first attain the age of 25, which bequest is void under section 114. The bequest to B is void.
(ii) A fund is bequeathed to A for his life, and after his death to such of h
(1) Where the terms of a Will direct that the income arising from any property shall be accumulated either wholly or in part during any period longer than a period of eighteen years from the death of the testator, such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the aforesaid period, and at the end of such period of eighteen years the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.
(2) This section shall not affect 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 po
No man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by a Will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the Wills of living persons:
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 educa
Where by the terms of a bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears by the Will, become vested in the legatee on the testator’s death, and shall pass to the legatee’s representatives if he dies before that time and without having received the legacy, and in such cases the legacy is from the testator’s death said to be vested in interest.
Explanation.—An intention that a legacy to any person shall not become vested in interest in him is not to be inferred merely from a provision whereby the payment or possession of the thing bequeathed is postponed, or whereby a prior interest therein is bequeathed to some other person, or whereby the income arising from the fund bequeathed is directed to be accumulated until the time of payment arrives, or from a provision th
(1) A legacy bequeathed 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 the happening of that event becomes impossible.
(3) In either case, until the condition has been fulfilled, the interest of the legatee is called contingent.
Exception.—Where a fund is bequeathed to any person upon his attaining a particular age, and the Will also gives to him absolutely the income to arise from the fund before he reaches that age, or directs the income, or so much of it as may be necessary, to be applied for his benefit, the bequest of the fund is not contingent.
Illustrations
(i)
Where a bequest is made only to such members of a class as shall have attained a particular age, a person who has not attained that age cannot have a vested interest in the legacy.
Illustration
A fund is bequeathed to such of the children of A as shall attain the age of 18, with a direction that, while any child of A shall be under the age of 18, the income of the share, to which it may be presumed he will be eventually entitled, shall be applied for his maintenance and education. No child of A who is under the age of 18 has a vested interest in the bequest.
Where a bequest imposes an obligation on the legatee, he can take nothing by 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 in difficulties, in respect of which shares heavy calls are expected to be made, bequeaths to B all his shares in joint stock companies; B refuses to accept the shares in (Y). He forfeits the shares in (X).
Where a Will contains two separate and independent bequests to the same person, the legatee is at liberty to accept one of them and refuse the other, although the former may be beneficial and the latter onerous.
Illustration
A, having a lease for a term of years of a house at a rent which he and his representatives are bound to pay during the term, and which is higher than the house can be let for, bequeaths to B the lease and a sum of money. B refuses to accept the lease. He will not by this refusal forfeit the money.
Where a legacy is given if a specified uncertain event shall happen and no time is mentioned in the will for the occurrence of that event, the legacy cannot take effect, unless such event happens before the period when the fund bequeathed is payable or distributable.
Illustrations
(i) A legacy is bequeathed to A, and, in case of his death, to B. If A survives the testator, the legacy to B does not take effect.
(ii) A legacy is bequeathed to A, and in case of his death without children, to B. If A survives the testator or dies in his lifetime leaving a child, the legacy to B does not take effect.
(iii) A legacy is bequeathed to A when and if he attains the age of 18, and, in case of his death, to B. A attains the age of 18. The legacy to B does not t
Where a bequest is made to such of certain persons as shall be surviving at some period, but the exact period is not specified, the legacy shall go to such of them as are alive at the time of payment or distribution, 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 A and B survive the testator, the legacy is equally divided between them. If A dies before the testator, and B survives the testator, it goes to B.
(ii) Property is bequeathed to A for life, and, after his death, to B and C, to be equally divided between them, or to the survivor of them. B dies during the life of A; C survives A. At A’s death the legacy goes to C.
(i
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 the date of the Will. The bequest is void.
A bequest upon a condition, the fulfilment of which would be contrary to law or to morality is void.
Illustrations
(i) A bequeaths 500 rupees to B on condition that he shall murder C. The bequest is void.
(ii) A bequeaths 5,000 rupees to his niece if she will desert her husband. The bequest is void.
Legal Comments
"Section 127" - Bequest upon illegal or immoral condition - [Source: ]
"Binding invalid condition" - Clause in Will that contravenes Hindu Succession Act Section 22 is void under Section 127 - [Source: KAILASHCHANDRA s/o RAMCHANDRA MISHRA VS DAMODAR s/o BALABAX (deceased) through Legal Heirs SMT. REVA DEVI w/o DAMODAR MISHRA]
"Right of preemption" - Section 127 can void restrictive preemption clauses that conflict with statute; such clauses not enforceable - [Source: KAILASHCHANDRA s/o RAMCHANDRA MISHRA VS DAMODAR s/o BALABAX (deceased) through Legal Heirs SMT. REVA DEVI w/o DAMODAR MISHRA]
"Probate scope" - Probate judges determine genuineness and execution; standard does not extend to validity of every provision of the Will (probate concerns execution, not substantive bequest) - [Source: Arnab Dutta VS Srinibash Debnath]
"Suspicious circumstances" - Courts require satisfaction of conscience; Will with suspicious circumstances may lead to denial of probate (sections 63, 64, 276) - [Source: 00400007418]
"Section 276 probate caveat" - Probate proceedings are summary; caveats and stake-holders must be properly represented; probate not final title determination - [Source: B. M. Venkataramanagowda VS Executive Engineer, Public Works Port and Inland Water Transport Department]
"Section 63 attestation" - Execution and attestation requirements under Section 63; proper execution includes sound mind and compliance with attestation; lack thereof defeats probate nomination - [Source: Bimla Devi @ Bimal Devi W/O Rabindra Singh Alive VS Uma Devi W/O Mrityunjay Kumar, Sulochana W/o Hanamant More VS Hanamant S/o Mukundappa More]
"Territorial and jurisdictional issues" - Jurisdiction to grant succession certificates lies concurrently with District Courts or High Courts depending on provisions (Sections 371-373, 300, Constitution) - [Source: Late Ishan & Late Smt. Ratnaprabha Dhanda VS Jogesh, Leela Bai VS Rama Bai]
"Succession certificate purpose" - It is a tool to collect debts and securities, not a final title to property; cannot confer ownership rights - [Source: Anurag VS State of H. P. , Mohan Lal VS A. D. J. Raisinghnagar]
"Section 214 limitation" - Section 214(1)(b) bars execution against a debtor without a succession certificate, but exceptions exist when original decree-holder began proceedings prior to death; continuation possible - [Source: Pentakota Baburao VS Tikkamchand]
"Section 372 vs 383" - Grant of a succession certificate under Section 372 can be challenged under Section 383; misrepresentation or non-joinder can lead to remand or revocation - [Source: 02500070475, Bhagat Ram VS Basanti Devi & Ors. ]
"Will authenticity vs. validity" - Probate focus on genuineness/execution; the court does not decide the validity of the provisions of the will; that may be subject to separate challenge - [Source: Arnab Dutta VS Srinibash Debnath]
"Adopted/family rights" - Legitimate status of heirs under Hindu Succession Act and relevant acts affect succession certificates and probate, including cross-applications with Hindu Succession Act rights - [Source: Dhola Devi VS Smt. Archana Devi, M. P. CHRISTOBER VS M. FABIAN]
"Suspicious Will – consequences" - If Will shows revocation clauses or conflicting recitals without proper incorporation of referenced apparatus, the Will may be held not proved and probate denied - [Source: Sulochana W/o Hanamant More VS Hanamant S/o Mukundappa More, Anil Kak VS Ku. Sharada Raje]
"Caveat and interest" - Caveatable interest under Section 283(1)(c) permits caveats to challenge probate if there is a recognized estate interest - [Source: Srila Bhakti Sundar Govinda Dev Goswami Maharaj VS Testamentary, B. M. Venkataramanagowda VS Executive Engineer, Public Works Port and Inland Water Transport Department]
"Bequest validity vs. alienation restraints" - Bequests restraining alienation or conditioning on actions may be scrutinized under Section 97, 114, 127 to determine if absolute or restricted bequest; class-specific bequests may be treated as absolute if validly described - [Source: M. P. CHRISTOBER VS M. FABIAN]
"Admissibility of amendments" - Amendment applications in succession proceedings may be restricted; questions of maintainability and scope of amendments are addressed under CPC rules (Order 6 Rule 17) - [Source: Indra Bahadur Yadav VS Harkhas And Aam]
"Adoption and succession" - Adoption under Hindu Adoption and Maintenance Act affects succession certificates when adoption is contested; burden on claimant and need for valid consent to adopt - [Source: Bhanwar Lal VS Santara]
"Estate distribution clarity" - When Will references appendices or documents incorporated by reference (S.64), the document must exist at execution; otherwise the Will may be deemed incomplete and not proved - [Source: Anil Kak VS Ku. Sharada Raje]
"Probate vs. letters of administration" - Distinction between probate (testamentary) and letters of administration; Section 232/233/276 interplay dictates how executors or administrators are appointed and rights conferred - [Source: Jogendra Prasad Alias Bhola VS Kamlesh Kumar, Ashok Kumar Bawa VS State]
"Extension of Part X concepts" - Extension/extension of succession concepts (Section 376) is appealable under Section 384; extension decisions are treated as equivalent to grant decisions for appellate purposes - [Source: Krishna Dey VS Renuka Roy]
"Non-Christian inheritance" - In some cases, Section 33, 35, and cross-references determine inheritance for non-Christians and adoptive scenarios; courts consider constitutional allocations (Art. 254) when reconciling state and central law - [Source: VASANTI VS PHAREZ JOHN ABRAHAM, Parikshit Choubey VS Din Dayal Choubey, Mariyam @ Beatrice, Rep. By Power Of Attorney Holder Boby Kurian VS Fr. Joseph Mattam (Died)]
"Mortgage debts and Section 214" - Section 214 restrictions emphasize that a succession certificate concerns debts and securities; not all contractual debts require a certificate; the nature of debt matters for maintainability - [Source: Gokal Chand VS Shanti Devi, Prasanna S, Menon VS Narayanan Nair]
"Judgment in rem vs. personal rights" - Probate orders are often considered proceedings in rem and do not bind third parties regarding title; they relate to probate and administration rather than final property titles - [Source: Arnab Dutta VS Srinibash Debnath, B. M. Venkataramanagowda VS Executive Engineer, Public Works Port and Inland Water Transport Department]
"Cognate sources and cross-citations" - Indian Succession Act interacts with Hindu Succession Act, Travancore Act, and other local laws; modern judgments emphasize harmonization and repeal implications under Part B States Act - [Source: MARY ROY VS STATE OF KERALA, Mariyam @ Beatrice, Rep. By Power Of Attorney Holder Boby Kurian VS Fr. Joseph Mattam (Died), Kiran Kumari, D/o Late Bajo Ram @ Baijo Ram VS Bharat Coking Coal Limited through its Chairman-cum-Managing Director]
Where a Will imposes a condition to be fulfilled before the legatee can take a vested interest in the thing bequeathed, the condition shall be considered to have been fulfilled if it has been substantially complied with.
Illustrations
(i) A legacy is bequeathed to A on condition that he shall marry with the consent to B, C, D and E. A marries with the written consent of B. C is present at the marriage. D sends a present to A previous to the marriage. E has been personally informed by A of his intentions, and has made no objection. A has fulfilled the condition.
(ii) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and D. D dies. A marries with the consent of B and C. A has fulfilled the condition.
(iii) A legacy
Where there is a bequest to one person and a bequest of the same thing to another, if the prior bequest shall fail, the second bequest shall take effect upon the failure of the prior bequest although the failure may not have occurred in the manner contemplated by the testator.
Illustrations
(i) A bequeaths a sum of money to his own children surviving him, and, if they all die under 18, to B. A dies without 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 three months after A’s death and, if he should neglect to do so, to C. B dies in the testator’s life-time. The bequest to C takes effect.
Where the Will shows an intention that the second bequest shall take effect only in the event of the first bequest failing in a particular manner, the second bequest shall not take effect, unless the prior bequest fails in that particular manner.
Illustration
A makes a bequest to his wife, but in case she should die in his lifetime, bequeaths to B that which he had bequeathed to her. A and his wife perish together, under circumstances which make it impossible to prove that she died before him, the bequest to B does not take effect.
(1) A bequest may be made to any person with the condition super-added that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain 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 attains that 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 compet
An ulterior bequest of the kind contemplated by section 131 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 legacy shall go to E. D dies. Even if A marries without the consent of B and C, the gift of 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 go to C. A marries with the consent of B. He afterwards becomes a widower and marries again without the consent of B. 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 marries without the
If the ulterior bequest be not valid the original 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 walk 100 miles in an hour, the estate shall go to B. The condition being void, A retains his estate as if no condition had been inserted in the Will.
(ii) An estate is bequeathed to A for her life and, if she does not desert her husband, to B. A is entitled to the estate during 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 the testator’s death, has not had a son. The bequest over is void under section 105, and A is entitle
A bequest may be made with the condition super-added that it shall cease to have effect in case a specified uncertain event shall happen, or in case a specified uncertain event shall 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, the bequest 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 the executors named in the will, the estate shall cease to belong to him. A marries under 25 without the consent of the executors. The estate ceases to belong to him.
(iii) An estate is bequeathed to A, provided that, if he s
In order that a condition that a bequest shall cease to have effect may be valid, it is necessary that the event to which it relates be one which could legally constitute the condition of a bequest as contemplated by section 120.
Where a bequest is made with a condition super-added that, unless the legatee shall perform a certain act, the subject-matter of the bequest shall go to another person, or the bequest shall cease to have effect but no time is specified for the performance of the act; if the legatee takes any step which renders impossible or indefinitely postpones the performance of the act required, the legacy shall go as if the legatee had died without performing such act.
Illustrations
(i) A bequest is made to A, with a proviso that, unless he enters the Army, the legacy shall go over to B. A takes Holy Orders, and thereby renders it impossible that he should fulfil the condition. B is entitled to receive the legacy.
(ii) A bequest is made to A, with a proviso that it shall cease to have any effect if he doe
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 non-fulfilment of which the subject-matter of the bequest is to go over to another person or the bequest is to cease to have effect, the act must be performed within the time specified, unless the performance of it be prevented by fraud, in which case such further time shall be allowed as shall be requisite to make up for the delay caused by such fraud.
Where a fund is bequeathed absolutely to or for the benefit of any person, but the Will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the Will had contained no such direction.
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 specified benefit for the legatee; if that benefit cannot be obtained for the legatee, the fund belongs to him as if the Will 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 shares of 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
Where a testator does 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 upon the 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 son for life, and at his death shall divide the principal among his children. The son dies without having ever had a child. The fund, after the son’s death, belongs to the estate of the testator.
(ii) A bequeaths the residue of his estate, to be divided equally among his daughters, with a direction that they are to have the interest only during their live
If a legacy is bequeathed to a person who is named an executor of the Will, he shall not take the legacy, unless he proves the will or otherwise manifests an intention to act as executor.
Illustration
A legacy is given to A, who is named an executor. A orders the funeral according to the directions contained in the Will, and dies a few days after the testator,without having proved the Will. A has manifested an intention to act as executor.
Where a testator bequeaths to any person a specified part of his property, which is distinguished from all other parts of his property, the legacy is said to be specific.
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”;
&nb
Where a certain sum is bequeathed, the legacy is not specific merely because the stock, funds or securities in which it is invested are described in the will.
Illustration
A 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”.
None of these legacies is specific.
Where a bequest is made in general terms of a certain amount of any kind of stock, the legacy is not specific merely because the testator was, at the date of his will, possessed of stock of the specified kind, to an equal or greater amount than the amount bequeathed.
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 until some 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 A’s property in India shall be realised in England. The legacy is not specific.
Where a Will contains a bequest of the residue of the testator’s property along with an enumeration of some items of property not previously bequeathed, the articles enumerated shall not be deemed to be specifically bequeathed.
Where property is specifically bequeathed to two or more persons in succession, it shall be retained in the form in which the testator left it, although it may be of such a nature that its value is continually decreasing.
Illustrations
(i) A, having lease of a house for a term of years, fifteen of which were unexpired at the time of his death, has bequeathed the lease to B for his life, and after B’s death to C. B is to enjoy the property as A left it, although, if B lives for fifteen years, C can take nothing under the bequest.
(ii) A, having an annuity during the life of B, bequeaths it to C, for his life, and, after C’s death, to D. C is to enjoy the annuity as A left it, although, if B dies before D, D can take nothing under the bequest.
Where property comprised in a bequest to two or more persons in succession is not specifically bequeathed, it shall, in the absence of any direction to the contrary, be sold, and the proceeds of the sale shall be invested in such securities as the High Court may by any general rule authorise or direct, and the fund thus constituted shall be enjoyed by the successive legatees according to the terms of the 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 lease must be sold, the proceeds invested as stated in this section and the annual income arising from the fund is to be paid to 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 the general legacies.
Where a testator bequeaths a certain sum of money, or a certain quantity of any other commodity, and refers to a particular fund or stock so as to constitute the same the primary fund or stock out of which payment is to be made, the legacy is said to be demonstrative.
Explanation.—The distinction between a specific legacy and a demonstrative legacy consists in this, that—
where specified property is given to the legatee, the legacy is specific;
where the legacy is directed to be paid out of specified property, it is demonstrative.
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 rupees to be paid out of the debt due to him from W. The le
Where a portion of a fund is specifically bequeathed and a legacy is directed to be paid out of the same fund, the portion specifically bequeathed shall first be paid to the legatee, and the demonstrative legacy shall be paid out of the residue of the fund and, so far as the residue shall be deficient, out of the general assets of the testator.
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 to be 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 assets of the testator.
If any thing which has been specifically bequeathed does not belong to the testator at the time of his death, or has been converted into property of a different kind, the legacy is adeemed; that is, it cannot take effect, by reason of the subject-matter having been withdrawn from the operation of the Will.
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 time of my death
A demonstrative legacy is not adeemed by reason that the property on which it is charged by the Will does not exist at the time of the death of the testator, or has been converted into property of a different kind,but it shall in such case be paid out of the general assets of the testator.
Where the thing specifically bequeathed is the right to receive something of value from a third party, and the testator himself receives it, the bequest is adeemed.
Illustrations
(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 are adeemed.
(ii) A bequeaths to B his interest in certain policies of life ass
The receipt by the testator of a part of an entire thing specifically bequeathed shall operate as an ademption of the legacy to the extent of the sum so received.
Illustration
A bequeaths to B “the debt due to me by C”. The debt amounts to 10,000 rupees. C pays to A 5,000 rupees the one-half of the debt. The legacy is revoked by ademption, so far as regards the 5,000 rupees received by A.
If a portion of an entire fund or stock is specifically bequeathed, the receipt by the testator of a portion of the fund or stock shall operate as an ademption only to the extent of the amount so received; and the residue of the fund or stock shall be applicable to the discharge of the specific legacy.
Illustration
A bequeaths to B one-half of the sum of 10,000 rupees due to him from W. A in his lifetime receives 6,000 rupees, part of the 10,000 rupees. The 4,000 rupees which are due from W to A at the time of his death belong to B under the specific bequest.
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 a portion of that fund, and the remainder of the fund is insufficient to pay both the specific and the demonstrative legacy, the specific legacy shall be paid first, and the residue (if any) of the fund shall be applied so far as it will extent in payment of the demonstrative legacy, and the rest of the demonstrative legacy shall be paid out of the general assets of the testator.
Illustration
A bequeaths to B 1,000 rupees, part of the debt of 2,000 rupees due to him from W. He also bequeaths to C 1,000 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 the
Where stock which has been specifically bequeathed does not exist at the testator’s death, the legacy is adeemed.
Illustration
A bequeaths to B—
“my capital stock of 1,000l. 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, the legacy is adeemed so far as regards that part of the stock which has ceased to exist.
Illustration
A bequeaths to B his 10,000 rupees in the 5½ per cent. loan of the Central Government. A sells one-half of his 10,000 rupees in the loan in question. One-half of the legacy is adeemed.
Section 159 of the Indian Succession Act, 1925, deals with the concept of ademption of specific legacies, particularly stock or shares bequeathed in a will. It provides clarity on the treatment of stock or securities when they do not exist in the exact form or quantity at the time of the testator’s death, thereby affecting the validity and extent of specific bequests.
Section 159 states that if stock or securities bequeathed specifically in a will exist only in part at the time of the testator’s death, the legacy is deemed to be adeemed, meaning the bequest is considered to have failed to the extent of the stock that no longer exists in the specified quantity.
Section 159 of the Indian Succession Act, 1925, plays a crucial role in the ademption of specific bequests of stock or securities, ensuring that the testator’s intent is faithfully executed and that beneficiaries do not claim assets that no longer exist in the specified form at the time of death. It provides clarity, certainty, and fairness in estate administration, aligning with broader principles of testamentary freedom and justice.
A specific bequest of goods under a description connecting them with a certain place is not adeemed by reason that they have been removed from such place from any temporary cause, or by fraud, or without the knowledge or sanction of the testator.
Illustrations
(i) A bequeaths to B “all my household goods which shall be in or about my dwelling-house in Calcutta at the time of my death”. The goods are removed from the house to save them from fire. A dies before they are brought back.
(ii) A bequeaths to B “all my household goods which shall be in or about my dwelling-house in Calcutta at the time of my death”. During A’s absence upon a journey, the whole of the goods are removed from the house. A dies without having sanctioned their removal.
Neither o
The removal of the thing bequeathed from the place in which it is stated in the Will to be situated does not constitute an ademption, where the place is only referred to in order to complete the description of what the testator meant to bequeath.
Illustrations
(i) A bequeaths to B “all the bills, bonds and other securities for money belonging to me now lying in my lodgings in Calcutta”. At the time of his death these effects had been removed from his lodgings in Calcutta.
(ii) A bequeaths to B all his furniture then in his house in Calcutta. The testator has a house at Calcutta and another at Chinsurah, in which he lives alternately, being possessed of one set of furniture only which he removes with himself to each house. At the time of his death the furniture is in the house at Chinsurah.
Where the thing bequeathed is not the right to receive something of value from a third person, but the money or other commodity which may be received from the third person by the testator himself or by his representatives, the receipt of such sum of money or other commodity by the testator shall not constitute an ademption, but if he mixes it up with the general mass of his 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 the Will and the testator’s death, and the change takes place by operation of law, or in the course of execution of the provisions of any legal instrument under which the thing bequeathed was held, the legacy is not adeemed by reason of such change.
Illustrations
(i) A bequeaths to B “all the money which I have in the 5½ per cent. loan of the Central Government”. The securities for the 5½ per cent. loan are converted during A’s lifetime into 5 per cent. stock.
(ii) A bequeaths to B the sum of 2,000£ invested in Consolsin the names of trustees for A. The sum of 2,000£ is transferred by the trustees into A’s own name.
(iii) A bequeaths to B the sum of 10,000 rupees in promiss
Where a thing specifically bequeathed undergoes a change between the date of the Will and the testator’s death, and the change takes place without the knowledge or sanction of the testator, the legacy is not adeemed.
Illustration
A bequeaths to B “all my 3 per cent. Consols”. The Consols are, without A’s knowledge sold by his agent, and the proceeds converted into East India Stock. This legacy is not adeemed.
Where stock which has been specifically bequeathed is lent to a third party on condition that it shall be replaced, and it is replaced accordingly, the legacy is not adeemed.
Where stock specifically bequeathed is sold, and an equal quantity of the same stock is afterwards purchased and belongs to the testator at his death, the legacy is not adeemed.
(1) Where property specifically bequeathed is subject at the death of the testator to any pledge, lien or incumbrance created by the testator himself or by any person under whom he claims, then, unless a contrary intention appears by the Will, the legatee, if he accepts the bequest, shall accept it subject to such pledge or incumbrance, and shall (as between himself and the testator’s estate) be liable to make good the amount of such pledge or incumbrance.
(2) A contrary intention shall not be inferred from any direction which the Will may contain for the payment of the testator’s debts generally.
Explanation.—A periodical payment in the nature of land-revenue or in the nature of rent is not such an incumbrance as is contemplated by this section.
Illustrations
Where anything is to be done to complete the testator’s title to the thing bequeathed, it is to be done at the cost of the testator’s estate.
Illustrations
(i) A, having contracted in general terms for the purchase of a piece of land at a certain price, bequeaths to B, and dies before he has paid the purchase-money. The purchase-money must be made good out of A’s assets.
(ii) A, having contracted for the purchase of a piece of land for a certain sum of money, one-half of which is to be paid down and the other half secured by mortgage of the land, bequeaths it to B, and dies before he has paid or secured any part of the purchase-money. One-half of the purchase-money must be paid out of A’s assets.
Where there is a bequest of any interest in immovable property in respect of which payment in the nature of land-revenue or in the nature of rent has to be made periodically, the estate of the testator 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 rent at 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 any direction in the Will, where there is a specific bequest of stock in a joint-stock company, if any call or other payment is due from the testator at the time of his death in respect of the stock, such call or payment shall, as between the testator’s estate and the legatee, be borne by the estate; but, if any call or other payment becomes due in respect of such stock after the testator’s death, the same shall, as between the testator’s estate and the legatee, be borne by the legatee if he accepts the bequest.
Illustrations
(i) A bequeaths to B his share in a certain railway. At A’s death there was due from him the sum of 100 rupees in respect of each share, being the amount of a call which had been duly made and the sum of five rupees in respect of each share, being the amount of interest which had accrued due in res
If there is a bequest of something described in general terms the executor must purchase for the legatee what may reasonably be considered to answer the description.
Illustrations
(i) A bequesths to B a pair of carriage-horses or a diamond ring. The executor must provide the legatee with such articles if the state of the assets will allow it.
(ii) A bequeaths to B “my pair of carriage-horses”. A had no carriage-horses at the time of his death. The legacy fails.
Where the interest or produce of a fund is bequeathed to any person, and the Will affords no indication of an intention that the enjoyment of the bequest should be of limited duration, the principal, as well as the interest, shall belong to the legatee.
Illustrations
(i) A bequeaths to B the interest of his 5 per cent. promissory notes of the Central Government. There is no other clause in the Will affecting those securities. B is entitled to A’s 5 per cent. promissory notes of the Central Government.
(ii) A bequeaths the interest of his 5½ per cent. promissory notes of the Central Government to B for his life, and after his death to C. B is entitled to the interest of the notes during his life and C is entitled to the notes upon B’s death.
(iii) A
Where an annuity is created by Will, the legatee is entitled to receive it for his life only, unless a contrary intention appears by the Will, notwithstanding that the annuity is directed to be paid out of the property generally, 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 500 rupees 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 500 rupees during his life. C, if he survives B, is entitled to an annuity of 500 rupees
Where the Will directs that an annuity shall be provided for any person out of the proceeds of property, or out of property generally, or where money is bequeathed to be invested in the purchase of any annuity for any person, on the testator’s death, the legacy vests in interest in the legatee, and he is entitled at his option to have an annuity purchased for him or to receive the money appropriated for that purpose by the Will.
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 sum as will be sufficient for the purchase of such an annuity.
(ii) A bequeaths a fund to B for his life, and directs that aft
Where an annuity is bequeathed, but the assets of the testator are not sufficient to pay all the legacies given by the Will, the annuity shall abate in the same proportion as the other pecuniary legacies given by the Will.
Where there is a gift of an annuity and a residuary gift, the whole of the annuity is to be satisfied before any part of the residue is paid to the residuary legatee, and, if necessary, the capital of the testator’s estate shall be applied for that purpose.
Where a debtor bequeaths a legacy to his creditor, and it does not appear from the Will that the legacy is meant as a satisfaction of the debt, the creditor shall be entitled to the legacy, as well as to the amount of the debt.
Where a parent, who is under obligation by contract to provide a portion for a child, fails to do so, and afterwards bequeaths a legacy to the child, and does not intimate by his Will that the legacy is meant as a satisfaction of the portion, the child shall be entitled to receive the legacy, as well as the portion.
Illustration
A, by articles entered into in contemplation of his marriage with B covenanted that he would pay to each of the daughters of the intended marriage a portion of 20,000 rupees on her marriage. This covenant having been broken. A bequeaths 20,000 rupees to each of the married daughters of himself and B. The legatees are entitled to the benefit of this bequest in addition to their portions.
No bequest shall be wholly or partially adeemed 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 is not 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 to dispose of some thing which he has no right to dispose of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefit which may have been provided for him by the Will.
An interest relinquished in the circumstances stated 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 the gift attempted to be given to him by the Will.
The provisions of sections 180 and 181 apply whether the testator does or does not believe that which he professes to dispose of by his Will to be his 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. C has elected to retain his farm of Sultanpur, which is worth 800 rupees. C forefeits his legacy of 1,000 rupees, of which 800 rupees goes to B, and the remaining 200 rupees falls into the residuary bequest, or devolves according to the rules of intestate succession, as the case may be.
(ii) A bequeaths an estate to B in case B’s elder brother (who is married and has children) shall leave no issue living at his death. A also bequeaths to C a jewel, which belongs to B. B must elect to give up the jewel or to lose the est
A bequest for a person’s benefit is, for the purpose of election, the same thing as a bequest made to himself.
Illustration
The farm of Sultanpur Khurd being the property of B, A bequeathed it to C ; and bequeathed another farm called Sultanpur Buzurg to his own executors with a direction that it should be sold and the proceeds applied in payment of B’ 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 directly under 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 the lands of Sultanpur to B, and 1,000 rupees to C. C dies intestate shortly after the testator, and without having made any election. D takes out administration to C, and as administrator elects on behalf of C’s estate to take under the Will. In that capacity he receives the legacy of 1,000 rupees and accounts to B for the rents of the lands of Sultanpur which accrued after the death of the testator and before the death of C. In his individual character he retains the lands of Sultanpur in opposition to the Will.
A person who in his individual capacity takes a benefit under a Will may, in another character, elect to take in opposition to the Will.
Illustration
The estate of Sultanpur is settled upon A for life, and after his death, upon B. A leaves the estate of Sultanpur to D, and 2,000 rupees to B, and 1,000 rupees to C, who is B’s only child. B dies intestate, shortly after the testator, without having made any election. C takes out administration to B, and as administrator elects to keep the estate of Sultanpur in opposition to the Will, and to relinquish the legacy of 2,000 rupees. C may do this, and yet claim his legacy of 1,000 rupees under the Will.
Notwithstanding anything contained in sections 180 to 185, where a particular gift is expressed in the Will to be in lieu of something belonging to the legatee which is also in terms disposed of by the Will, then, if the legatee claims that thing, he must relinquish the particular gift, but he is not bound to relinquish any other benefit given to him by the Will.
Illustration
Under A’s marriage-settlement his wife is entitled, if she survives him, to the enjoyment of the estate of Sultanpur during her life. A by his Will bequeaths to his wife an annuity of 200 rupees during her life, in lieu of her interest in the estate of Sultanpur, which estate he bequeaths to his son. He also gives his wife a legacy of 1,000 rupees. The widow elects to take what she is entitled to under the settlement. She is bound to relinquish the annuity but not t
Acceptance of a benefit given by a Will constitutes an election by the legatee to take under the Will, if he had knowledge of his right to elect and of those circumstances which would influence the judgment of a reasonable man in making an election, or if he waives inquiry into the circumstances.
Illustrations
(i) A is owner of an estate called Sultanpur Khurd, and has a life interest in another estate called Sultanpur Buzurg to which upon his death his son B will be absolutely entitled. The Will of A gives the estate of Sultanpur Khurd to B and the estate of Sultanpur Buzurg to C. B, in ignorance of his own right to the estate of Sultanpur Buzurg, allows C to take possession of it, and enters into possession of the estate of Sultanpur Khurd. B has not confirmed the bequest of Sultanpur Buzurg to C.
(1) Such knowledge or waiver of inquiry shall, in the absence of evidence to the contrary, be presumed if the legatee has enjoyed for two years the benefits provided for him by the Will without doing any act to express dissent.
(2) Such knowledge or waiver of inquiry may be inferred from any act of the legatee which renders it impossible to place the persons interested in the subject-matter of the bequest in the same condition as if such act had not been done.
Illustration
A bequeaths to B an estate to which C is entitled, and to C a coal mine. C takes possession of the mine and exhausts 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 to confirm or to dissent from, the Will, the representatives shall, upon the expiration of that period, require him to make his election; and, if he does not comply with such requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the Will.
In case of disability the election shall be postponed until the disability ceases, or until the election is made by some competent authority.
(1) A man may dispose, by gift made in contemplation of death, of any movable 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 die shortly of his illness, delivers, to another the possession of any movable property to keep as a gift in case 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 illness during which it was made; nor if he survives the person to whom it was made.
Illustrations
(i) A, being ill, and in expectation of death, delivers to B, to be retained by him in case of A’s death,—
a watch;
(1) If any person dies leaving property, moveable or immoveable, any person claiming a right by succession thereto, or to any portion thereof, may make application to the District Judge of the district where any part of the property is found or situate for relief, either after actual possession has been taken by another person, or when forcible means of seizing possession are apprehended.
(2) Any agent, relative or near friend, 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 such property as aforesaid, make the like application for relief.
The District Judge to whom such application is made shall, in the first place, examine the applicant on oath, and may make such further inquiry, if any, as he thinks necessary as to whether there is sufficient ground for believing that the party in possession or taking forcible means for seizing possession has no lawful title, and that the applicant, or the person on whose behalf he applies is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a suit, and that the application is made bona fide.
If the District Judge is satisfied that there is sufficient ground for believing as aforesaid but not otherwise, he shall summon the party complained of, and give notice of vacant or disturbed possession by publication, and, after the expiration of a reasonable time, shall determine summarily the right to possession (subject to a suit as hereinafter provided) and shall deliver possession accordingly:
Provided that the Judge shall have the power to appoint an officer who shall take an inventory of effects, and seal or otherwise secure the same, upon being applied to for the purpose, without delay, whether he shall have concluded the inquiry necessary for summoning the party complained of or not.
If it further appears upon such inquiry as aforesaid that danger is to be apprehended of the misappropriation or waste of the property before the summary proceeding can be determined, and that the delay in obtaining security from the party in possession or the insufficiency thereof is likely to expose the party out of possession to considerable risk, provided he is the lawful owner, the District Judge may appoint one or more curators whose authority shall continue according to the terms of his or their respective appointment, and in no case beyond the determination of the summary proceeding and the confirmation or delivery of possession in consequence thereof:
Provided that, in the case of land, the Judge may delegate to the Collector, or to any officer subordinate to the Collector, the powers of a curator:
Provided further, that every a
The District Judge may authorise the curator to take possession of the property either generally, or until security is given by the party in possession, or until inventories of the property have been made, or for any other purpose necessary for securing the property from misappropriation or waste by the party in possession:
Provided that it shall be in the discretion of the Judge to allow the party in possession to continue in such possession on giving security or not, and any continuance in possession shall be subject to such orders as the Judge may issue touching inventories, or the securing of deeds or other effects.
(1) Where a certificate has been granted under Part X or under the Succession Certificate Act, 18891 (7 of 1889), or a grant of probate or letters of administration has been made, a curator appointed under this Part shall not exercise any authority lawfully belonging to the holder of the certificate or to the executor or administrator.
(2) Payment of debts, etc., to curators.—All persons who have paid debts or rents to a curator authorised by a Court to receive them shall be indemnified, and the curator shall be responsible for the payment thereof to the person who has obtained the certificate, probate or letters of administration, as the case may be.
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1. Rep. partly by Act 39 of 1925 and finally by Act 1 of 1938.
(1) The District Judge shall take from the curator security for the faithful discharge of his trust, and for rendering satisfactory accounts of the 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 the immoveable property, as the District Judge thinks reasonable.
(2) All surplus money realized by the curator shall be paid into Court, and invested in public securities for the benefit of the persons entitled thereto upon adjudication of the summary proceeding.
(3) Security shall be required from the curator with all reasonable despatch, and where it is practicable, shall be taken generally to answer all cases for which the person may be afterwards appointed curator; but no delay in the taking of secu
(1) Where the estate of the deceased person consists wholly or in part of land paying revenue to Government, in all matters regarding the propriety of summoning the party in possession, of appointing a curator, or of nominating individuals to that appointment, the District Judge shall demand a report from the Collector, and the Collector shall thereupon furnish the same:
Provided that in cases of urgency the Judge may proceed, in the first instance, without such report.
(2) The Judge shall not be obliged to act in conformity with any such report, but, in case of his acting otherwise than according to such report, he shall immediately forward a statement of his reasons to the High Court, and the High Court, if it is dissatisfied with such reasons, shall direct the Judge to proceed conformably to the report of the Collector.
The curator shall be subject to all orders of the District Judge regarding the institution or the defence of suits, and all suits may be instituted or defended in the name of the curator on behalf of the estate:
Provided that an express authority shall be requisite in the order of the curator’s appointment for the collection of debts or rents; but such express authority shall enable the curator to give a full acquittance for any sums of money received by virtue thereof.
Pending the custody of the property by the curator, the District Judge may make such allowances to parties having a prima facie right thereto as upon a summary investigation of the rights and circumstances of the parties interested he considers necessary, and may, at his discretion, take security for the repayment thereof with interest, in the event of the party being found, upon the adjudication of the summary proceeding, not to be entitled thereto.
The 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 the possession of the property, file a detailed account of his administration to the satisfaction of the District Judge.
(1) The accounts of the curator shall be open to the inspection of all parties interested; and it shall be competent for any such interested party to appoint a separate person to keep a duplicate account of all receipts and payments by the curator.
(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 be punishable with fine not exceeding one thousand rupees for every such default.
If the Judge of any district has appointed a curator, in respect of the whole of the property of a deceased person, such appointment shall preclude the Judge of any other district within the same State from appointing any other curator, but the appointment of a curator in respect of a portion of the property of the deceased shall not preclude the appointment within the same State of another curator in respect of the residue or any portion thereof:
Provided that no Judge shall appoint a curator or entertain a summary proceeding in respect of property which 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 an estate, the High Court may make such order as it thinks fit for the appointment of
An application under this Part to the District Judge must be made within six months of the death of the proprietor whose property is claimed by right in succession.
Nothing in this Part shall be deemed to authorise the contravention of any public act of settlement or of any legal directions given by a deceased proprietor of any property for the possession of his property after his decease in the event of minority or otherwise, and, in every such case, as soon as the Judge having jurisdiction over the property of a deceased person is satisfied of the existence of such directions, he shall give effect thereto.
Nothing in this Part shall be deemed to authorise any disturbance of the possession of a Court of Wards of any property; and in case of a minor, or other disqualified person whose property is subject to the Court of Wards, is the party on whose behalf application is made under this Part, the District Judge, if he determines to summon the party in possession and to appoint a curator, shall invest the Court of Wards with the curatorship of the estate pending the proceeding without taking security as aforesaid; 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 the bringing of a suit either by the party whose application may have been rejected before or after the summoning of the party in possession, or by the party who may have been evicted from the possession under this Part.
The decision of a District Judge in a summary proceeding under this Part shall have no other effect than that of settling the actual possession; but for this purpose it shall be final, and shall not be subject to any appeal or review.
The State Government may appoint public curators for any district or number of districts; and the District Judge having jurisdiction shall nominate such public curators in all cases where the choice of a curator is left discretionary with him under this Part.
(1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.
(2) When the deceased was a Hindu, Muhammadan, Buddhist, 1[Sikh, Jaina or Parsi] or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person.
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1. Subs. by Act 16 of 1962, sec. 2, for ‘‘or Jaina’’.
(1) No right to any part of the property of a person who has died intestate can be established in any Court of Justice, unless letters of administration have first been granted 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].
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1. Subs. by Act 16 of 1962, sec. 3, for ‘‘or Indian Christian’’.
(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in 1[India] has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or 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], or and shall only apply—
(i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes 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 Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the
(1) No Court shall—
(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effect 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 a debtor 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 estate of 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
(1) A grant of probate or letters of administration in respect of an estate shall be deemed to supersede any certificate previously granted under Part X or under the Succession Certificate Act, 1889 (7 of 1889)1, or Bombay Regulation No.VIII of 1827, in respect of any debts or securities included in the estate.
(2) When at the time of the grant of the probate or letters any suit or other proceeding instituted by the holder of any such certificate regarding any such debt or security is pending, the person to whom the grant is made shall, on applying to the Court in which the suit or proceeding is pending, be entitled to take the place of the holder of the certificate in the suit or proceeding:
Provided that, when any certificate is superseded under this section, all payments made to the holder of such certificate in ignorance of such supe
After any grant of probate or letters of administration, no other than the person to whom the same may have been granted shall have power to sue or prosecute any suit, or otherwise act as representative of the deceased, throughout the State in which the same may have been granted, until such probate or letters of administration has or have been recalled or revoked.
Save as otherwise provided by this Act or by any other law for the time being in force, all grants of probate and letters of administration with the Will annexed and the administration 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 be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such 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 Court to 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 referred to in section 218, those who are connected with him, either by marriage or by consanguinity, are entitled to obtain letters of administration of his estate and effects in the order and according to the rules hereinafter stated, namely:—
(a) If the deceased has left a widow, administration shall be granted to the widow, unless the Court sees cause to exclude her, either on the ground of some personal disqualification, or because she has no interest in the estate of the deceased.
Illustrations
(i) The widow is a lunatic or has committed adultery or has been barred by her marriage settlement of all interest in her husband’s estate. There is cause for excluding her from the
Letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death.
Letters of administration do not render valid any intermediate acts of the administrator tending to the diminution or damage of the intestate’s estate.
(1) Probate shall be granted only to an executor appointed 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, and adds “but should the within-named C be not living I do constitute and appoint B my whole and sole executrix”. C is appointed executrix by implication.
(iii) A appoints several persons executors of his will and codicils and his nephew residuary legatee, and in another codicil are these words,—“I appoint my nephew my residuary legatee to discharge all lawful dem
Section 222 of the Indian Succession Act, 1925, delineates the scope and limitations regarding the grant of probate of a will. It emphasizes that probate is a legal certificate granted exclusively to an individual appointed as an executor in the will, underscoring the personal nature of the appointment and the jurisdiction of the probate court.
Section 222 states:- Probate shall be granted only to an executor appointed by the will.- The appointment may be explicit (express) or implied (necessary implication).- If no executor is appointed, or if the appointed executor refuses or is incapable, the court cannot grant probate to others except in specified circumstances (e.g., Letters of Administration under Section 232).
In summary, Section 222 of the Indian Succession Act, 1925, underscores that probate is a personal certificate granted exclusively to the individual appointed as executor in the will, whether expressly or impliedly. The court's role is confined to verifying the validity of the appointment and the will, not the ownership or title to the estate. Any deviation from this statutory framework—such as granting probate to non-appointeds—can be challenged and declared invalid. The law maintains the personal and exclusive nature of the executor's role, emphasizing procedural correctness, proper execution, and adherence to statutory provisions.
**- ["Govindi Bai VS Purshottam Lal"], ["NAND LAL VS VIDYA DEVI"], ["INDER CHAND VS S. ARYA PRATINIDHI SABHA"], ["In The Matter Between Bindia Kriplani VS Naresh Nathulal Pal"], ["M. R. Mohan Kumar VS Nil"], ["Prem Kumari VS State"], ["R. K. Aggarwal VS State of Delhi"], ["Ram Chandra Prasad Rastogi S/o late Bhawan Das Rastogi VS Prem Devi, W/o late Jagdish Lal"], ["SAYAR KUMARI VS STATE"], ["Gokul Chandra Das VS Susanta Kumar Das"]
Probate cannot be granted to any person who is a minor or is of unsound mind 1[nor to any association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made 2[by notification in the Official Gazette,] by the 3[State Government], in this behalf].
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1. Added by Act 17 of 1931, sec. 2. The words ‘‘nor, unless the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, to a married woman without the previous consent of her husband” which originally occurred at the end of this section had been omitted by Act 18 of 1927, sec.2.
2. Ins. by Act 20 of 1983, sec. 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
When several executors are appointed, probate may be granted to them all simultaneously or at different times.
Illustration
A is an executor of B’s will by express appointment and C an executor of it by implication. Probate may be granted 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 discovered after the grant of probate, a separate probate of that codicil may be granted to the executor, if it in no way repeals the appointment of executors made by the Will.
(2) If different executors are appointed by the codicil, the probate of the Will shall be revoked, and a new probate granted of the Will and the codicil together.
When probate has been granted to several executors, and one of them dies the entire representation of the testator accrues to the surviving executor or executors.
Probate of a Will when granted establishes the Will from the death of the testator, and renders valid all intermediate acts of the executor as such.
When a Will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the State, whether within or beyond the limits of 1[India], and a properly authenticated copy of the Will is produced, letters of administration may be granted with a copy of such copy annexed.
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1. Subs. by the A.O. 1950, for “His Majesty’s dominions”.
When a person appointed an executor has not renounced the executorship, letters of administration shall not be granted to any other person 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 death of the survivor of those who have proved, grant letters of administration without citing those who have not proved.
The renunciation may be made orally in the presence of the Judge, or by a writing signed by the person renouncing, and when made shall preclude him from ever thereafter applying for probate of the Will appointing him executor.
If an executor renounces 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 to the 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 has died 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 of the deceased,
a universal or a residuary legatee may be admitted to prove the Will, and letters of administration with the Will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered.
When a residuary legatee who has a beneficial interest survives the testator, but dies before the estate has been fully administered, his representative has the same right to administration with the Will annexed as such residuary legatee.
When there is no executor and no residuary legatee or representative of a residuary legatee, or he declines or is incapable to act, or cannot be found, the person or persons who would be entitled to the administration of the estate of the deceased if he had died intestate, or any other legatee having a beneficial interest, or a creditor, may be admitted to prove the Will, and letters of administration may be granted to him or them accordingly.
Letters of administration with the Will annexed shall not be granted to any legatee other than a universal or a residuary legatee, until a citation has been issued and published in the manner hereinafter mentioned, calling on the next-of-kin to accept or refuse letters of administration.
Every rule made by the State Government under section 223 and section 236 shall be laid, as soon as it is made, before the State Legislature.]
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1. Ins. by Act 20 of 1983, sec. 2 and Sch. (w.e.f. 15-3-1984).
Letters of administration cannot be granted to any person who is a minor or is of unsound mind, 1[nor to any association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made 2[by notification in the Official Gazette,] by the 3[State Government] in this behalf].
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1. Added by Act 17 of 1931, sec. 2. The words ‘‘nor, unless the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, to a married woman without the previous consent of her husband’’ which originally occurred at the end of this section had been omitted by Act 18 of 1927, sec.2.
2. Ins. by Act 20 of 1983, sec. 2 and Sch. (w.e.f. 15-3-1984).
3. The words ‘‘G.G. in C’’ have been successively amended by th
When a Will has been lost or mislaid since the testator’s death, or has been destroyed by wrong or accident and not by any act of the testator, and a copy or the draft of the Will has been preserved, probate may be granted of such copy or draft, limited until the original or a properly authenticated copy of it is produced.
When a Will has been lost or destroyed and no copy has been made nor the draft preserved, probate may be granted of its contents if they can be established by evidence.
When the Will is in the possession of a person residing out of the state in which application for probate is made, who has refused or neglected to deliver it up, but a copy has been transmitted to the executor, and it is necessary for the interests of the estate that probate should be granted without waiting for the arrival of the original, probate may be granted of the copy so transmitted, limited until the Will or an authenticated copy of it is produced.
Where no Will of the deceased is forthcoming, but there is reason to believe that there is a Will in existence, letters of administration may be granted, limited until the Will or an authenticated copy of it is produced.
The Indian Succession Act, 1925, governs the laws related to testamentary and intestate succession in India. Section 240 specifically addresses the administration of a deceased person's estate in cases where a will is believed to exist but is not available for production.
Section 240 provides that if a deceased person’s will is not available, but there is reason to believe that a will exists, the court may grant letters of administration to manage the estate until the will is produced.
This section allows for the temporary administration of a deceased's estate when the will is not available, ensuring that the estate is managed properly until the will can be produced. It serves as a protective measure for the estate and beneficiaries.
While Section 240 itself does not prescribe specific punishments, it operates within the framework of the Indian Penal Code, particularly referencing Section 176, which deals with the omission to produce a will when required.
When any executor is absent from the State in which application is made, and there is no executor within the State willing to act, letters of administration, with the Will annexed, may be granted to the attorney or agent of the absent executor, for the use and benefit of his principal, limited until he shall obtain probate or letters of administration granted to himself.
When any person to whom, if present, letters of administration, with the will annexed, might be granted, is absent from the State, letters of administration, with the will annexed may be granted to his attorney or agent, limited as mentioned in section 241.
When a person entitled to administration in case of intestacy is absent from the State, and no person equally entitled is willing to act, letters of administration may be granted to the attorney or agent of the absent person, limited as mentioned in section 241.
When a minor is sole executor or sole residuary legatee, letters of administration, with the Will annexed, may be granted to the legal guardian of such minor or to such other person as the Court may think fit until the minor has attained his majority at which period, and not before, probate of the Will shall be granted to him.
When there are two or more minor executors and no executor who has attained majority, or two or more residuary legatees and no residuary legatee who has attained majority, the grant shall be limited until one of them shall have attained his majority.
If a sole executor or a sole universal or residuary legatee, or a person who would be solely entitled to the estate of the intestate according to the rule for the distribution of intestate’s estates applicable in the case of the deceased, is a minor or lunatic, letters of administration, with or without the Will annexed, as the case may be, shall be granted to the person to whom the care of his estate has been committed by competent authority, or, if there is no such person, to such other person as the Court may think fit to appoint, for the use and benefit of the minor or lunatic until he attains majority or becomes of sound mind, as the case may be.
Pending any suit touching the validity of the Will of a deceased person or for obtaining or revoking any probate or any grant of letters of administration the Court may appoint an administrator of the estate of such deceased person, who shall have all the rights and powers of a general administrator, other than the right of distributing such estate, and every such administrator shall be subject to the immediate control of the Court and shall act under its direction.
If an executor is appointed for any limited purpose specified in the Will, the probate shall be limited to that purpose, and if he should appoint an attorney or agent to take administration on his behalf, the letters of administration, with the Will annexed, shall be limited accordingly.
If an executor appointed generally gives an authority to an attorney or agent to prove a Will on his behalf, and the authority is limited to a particular purpose, the letters of administration, with the Will annexed, shall be limited accordingly.
Where a person dies, leaving property of which he was the sole or surviving trustee, or in which he had no beneficial interest on his own account and leaves no general representative, or one who is unable or unwilling to act as such, letters of administration, limited to such property, may be granted to the beneficiary, or to some other person on his behalf.
When it is necessary that the representative of a person deceased be made a party to a pending suit, and the executor, or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other Court between the parties, or any other parties, touching the matters at issue in the said cause or suit, and until a final decree shall be made therein and carried into complete execution.
If, at the expiration of twelve months from the date of any probate or letters of administration, the executor or administrator to whom the same has been granted is absent from the State within which the Court which has granted the probate or letters of administration exercises jurisdiction, the court may grant, to any person whom it may think fit, letters of administration limited to the purpose of becoming and being made a party to a suit to be brought against the executor or administrator, and carrying the decree which may be made therein into effect.
In any case in which it appears necessary for preserving the property of a deceased person, the Court within whose jurisdiction any of the property is situate may grant to any person, whom such Court may think fit, letters of administration limited to the collection and preservation of the property of the deceased and to the giving of discharges for debts due to his estate, subject to the directions of the Court.
(1) When a person has died intestate, or leaving a Will of which there is no executor willing and competent to act or where the executor is, at the time of the death of such person, resident out of the State, and it appears to the Court to be necessary or convenient to appoint some person to administer the estate or any part thereof, other than the person who, in ordinary circumstances, would be entitled to a grant of administration, the Court may, in its discretion, having regard to consanguinity, amount of interest, the safety of the estate and probability that it will be properly administered, appoint such person as it thinks fit to be an administrator.
(2) In every such case letters of administration may be limited or not as the
Court thinks fit.
Whenever the nature of the case requires that an exception be made probate of a Will, or letters of administration with the Will annexed, shall be granted subject to such exception.
Whenever the nature of the case requires that an exception be made, letters of administration shall be granted subject to such exception.
Whenever a grant with exception of probate, or of letters of administration with or without the Will annexed, has been made, the person entitled to probate or administration of the remainder of the deceased’s estate may take a grant of probate or letters of administration as the case may be, of the rest of the deceased’s estate.
If an executor to whom probate has been granted has died, leaving a part of the testator’s estate unadministered, a new representative may be appointed for the purpose of administering such part of the estate.
In granting letters of administration of an estate not fully administered, the Court shall be guided by the same rules as apply to original grants, and shall grant letters of administration to those persons only to whom original grants might have been made.
When a limited grant has expired, by efflux of time, or the happening of the event or contingency on which it was limited, and there is still some part of the deceased’s estate unadministered, letters of administration shall be granted to those persons to whom original grants might have been made.
Errors in names and descriptions, or in setting forth the time and place of the deceased’s death or the purpose in a limited grant, may be rectified by the Court and the grant of probate or letters of administration may be altered and amended accordingly.
If, after the grant of letters of administration with the Will annexed, a codicil is discovered, it may be added to the grant on due proof and identification, and the grant may be altered and amended accordingly.
The grant of probate or letters of administration may 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 the Court 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 to justify 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 pers
(1) The District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district.
(2) Except in cases to which section 57 applies, no Court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay, 1[***] shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorised it so to do.
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1. The words ‘‘and the province of Burma’’ omitted by the A.O. 1937.
(1) The High Court may appoint such judicial officers within any district as it thinks fit to act for the District Judge as delegates to grant probate and letters of administration in non-contentious cases, within such local limits as it may prescribe:
Provided that, in the case of High Courts not established by Royal Charter such appointments shall not be without the previous sanction of the State Government.
(2) Persons so appointed shall be called “District Delegates”.
The District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court.
(1) The District Judge may order any person to produce and bring into Court any paper or writing, being or purporting to be testamentary, 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 such person, but there is reason to believe that he has the knowledge of any such paper or writing, the Court may direct such person to attend for the purpose of being examined respecting the same.
(3) Such person shall be bound to answer truly such questions 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 punishment under the Indian Penal Code, 1860 (45 of 1860), in case of default in not attending or in not answering such questions or not
The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided; be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908 (5 of 1908).
(1) Until probate is granted 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 and required to interfere for the protection of such property at the instance of any person claiming to be interested therein, and in all other cases where the Judge considers that the property incurs any risk of loss or damage; and for that purpose, if he thinks fit, to appoint an officer to take and keep possession of the property.
(2) This section shall not apply when the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property of an Indian Christian who has died intestate
Probate of the Will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, movable or immovable, within the jurisdiction of the Judge.
When the application is made to the Judge of a district in which the deceased had no fixed abode at the time of his death, it shall be in the discretion of the Judge to refuse the application, if in his judgment it could be disposed of more justly or conveniently in another district, or, where the application is for letters of administration, to grant them absolutely, or limited to the property within his own jurisdiction.
Probate and letters of administration may, upon application for that purpose of any District Delegate, be granted by him in any case in which there is no contention, if it appears by petition, verified as hereinafter provided, that the testator or intestate, as the case may be, at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.
Probate or letters of administration shall have effect over all the property and estate, movable or immovable, of the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted:
Provided that probates and letters of administration granted—
(a) by a High Court, or
(b) by a District Judge, where the deceased at the time of his death had a fixed place of abode situate within the jurisdiction of such Judge, and such Judge certifies that th
(1) Where probate or letters of administration has or have been granted by a High Court or District Judge with the effect referred to in the proviso to section 273, the High Court or District Judge shall send a certificate 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 District Judge 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 in the form set forth in Schedule IV, and such certificate shall be filed by the High Court receiving the same.
(3) Where any portion of the a
The application for probate or letters of administration, if made and verified in the manner hereinafter provided, shall be conclusive for the purpose of authorising the grant of probate or administration; and no such grant shall be impeached by reason only that the testator or intestate had no fixed place of abode or no property within the district at the time of his death, unless by a proceeding to revoke the grant if obtained by a fraud upon the Court.
(1) Application for probate or for letters of administration, with the Will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the Will or, in the cases mentioned in sections 237, 238 and 239, a copy, draft, or statement of the contents thereof, annexed, and stating—
(a) the time of the testator’s 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 execu
Section 276 of the Indian Succession Act, 1925 governs the procedure for filing a petition for probate or letters of administration with the will annexed. It mandates a distinctly written petition stating key facts about the testator's death, the will's execution, assets, and other particulars, enabling the court to validate the will's genuineness and grant probate where applicable.
Section 276 provides that applications for probate or letters of administration (with the will annexed) must be made by a petition distinctly written in English or the language in ordinary use, containing:- Time of the testator's death;- That the annexed writing is the last will and testament;- That it was duly executed;- Amount of assets liable to estate duty;- Details of fixed place of abode or property within jurisdiction;- When applicable to District Judge, deceased's abode or property details;- Right of applicant as executor;- Names, addresses, and descriptions of heirs, legatees, creditors;- Particulars of caveats or prior grants;- Statement of assets within/without the State;- Such other information as required.
The section limits probate court's inquiry to the will's genuineness, due execution, attestation, and testator's sound disposing state of mind. It excludes questions of property title, bequest validity, or testator's ownership. Probate is in rem, conclusive until revoked, but does not determine title disputes.
No specific punishment prescribed under Section 276; however, related provisions like Section 282 impose punishment for false averments in petitions or declarations (not detailed in sources).
In cases wherein the Will, copy or draft, is written in any language other than English or than that inordinary use in proceedings before the Court, there shall be a translation thereof annexed to the petition by a translator of the Court, if the language be one for which a translator is appointed; or, if the Will, copy or draft, is in any other language, then by any person competent to translate the same, in which case such translation shall be verified by that person in the following manner, namely:—
“I (A.B.) do declare that I read and perfectly understand the language and character of the original, and that the above is a true and accurate translation thereof.”
(1) Application for letters of administration shall be made 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 a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and
(f) when the application is to a District Delegate, th
(1) Every person applying to any of the Courts mentioned in the proviso to section 273 for probate of a Will or letters of administration of an estate intended to have effect throughout 1[India], shall state in his position, in addition to the matters respectively required by section 276 and section 278, that to the best of his belief no application has been made to any other Court for a probate of the same Will or for letters 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 by whom 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 thinks fit, reject the same.
The petition for probate or letters of administration shall in all cases be subscribed by the petitioner and his pleader, if any, and shall be verified 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 best of my information and belief.”
Where the application is for probate, the petition shall also be verified by at least one of the witnesses to the will (when procurable) in the manner or to the effect following, namely:—
“I (C.D.), one of the witnesses to the last Will and testament of the testator mentioned in the above petition, declare that I was present and saw the said testator affix his signature (or mark) thereto (or that the said testator acknowledged the writing annexed to the above petition to be his last Will and testament in my presence).”
If any petition or declaration which is hereby required to be verified contains any averment which the person making the verification knows or believes to be false, such person shall be deemed to have committed an offence under section 193 of the Indian Penal Code, 1860 (45 of 1860).
(1) In all cases the District judge or District Delegate may, if he thinks 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 the letters of administration, as the case may be;
(c) issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.
(2) The citation shall be fixed up in some conspicuous part of the court-house, and also the office of the Collector of the district and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct.
&nb
Section 283 of the Indian Succession Act, 1925, confers discretionary powers upon the District Judge or District Delegate to oversee probate proceedings, primarily to ensure the authenticity of the will and the interests of all parties involved. It plays a crucial role in safeguarding the integrity of testamentary dispositions and protecting the rights of interested persons in estate proceedings.
Section 283(1)(c) authorizes the District Judge or Delegate to issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration. The section emphasizes the court's authority to examine interested parties, require further evidence, and manage proceedings to prevent fraud or irregularities.
While Section 283 itself does not specify punishment, false averments or concealment of material facts during examination or in petitions can attract penalties under Section 282 of the Indian Succession Act, 1925, which prescribes punishment for false statements or declarations.
In summary, Section 283 of the Indian Succession Act, 1925, is a vital procedural safeguard designed to ensure that all interested persons, however slight their interest, are given an opportunity to participate in probate proceedings. Its scope is limited to procedural oversight and protection of interests, excluding the court from adjudicating questions of ownership or the validity of the will itself. Proper exercise of its discretionary powers is essential to uphold the principles of justice and prevent fraudulent transactions in estate matters.
(1) Caveats against the grant of probate or administration may be lodged with a District Judge or a District Delegate.
(2) Immediately on any caveat being lodged with any District Delegate, he shall send copy thereof to the District Judge.
(3) Immediately on a caveat being entered with the District Judge, a copy thereof shall be given to the District Delegate, if any, within whose jurisdiction it is alleged the deceased had fixed place of abode at the time of his death, and to any other Judge or District Delegate to whom it may appear to the District Judge expedient to transmit the same.
(4) Form of caveat.—The caveat shall be made as nearly as circumstances admit in the form set forth in Schedule V.
Section 284 of the Indian Succession Act, 1925, provides the statutory framework for lodging caveats against the grant of probate or letters of administration. It aims to regulate the process of opposition by interested parties in testamentary proceedings, ensuring that their rights are protected prior to the issuance of probate or administration.
Section 284 authorizes any person who claims an interest in the estate of a deceased to lodge a caveat with a District Judge or District Delegate. The caveat acts as a notice to the court and the petitioner that the caveator intends to oppose the grant of probate or letters of administration. The section also prescribes the form of caveats, the process of notification, and the consequences of non-compliance.
While Section 284 itself does not specify penalties, false averments or misrepresentations in caveats or affidavits can attract punishment under Section 273 of the Indian Succession Act, 1925, which prescribes penalties for false statements or declarations made in petitions, affidavits, or declarations.
This concise legal commentary underscores the procedural and substantive aspects of Section 284, emphasizing that a caveat must be lodged by a person with a genuine interest, supported by proper affidavits, within the prescribed time, and that procedural lapses can lead to its dismissal. The section aims to balance the rights of interested parties with the integrity of probate proceedings, avoiding their conversion into contentious title suits.
No proceeding shall be taken on a petition for probate or letters of administration after a caveat against the grant thereof has been entered with the Judge or District Delegate to whom the application has been made or notice has been given of its entry with some other Delegate, until after such notice to the person by whom the same has been entered as the Court may think reasonable.
A District Delegate shall not grant probate or letters of administration in any case in which there is contention as to the grant, or in which it otherwise appears to him that probate or letters of administration ought not to be granted in his Court.
Explanation.—‘‘Contention” means the appearance of any one in person, or by his recognised agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding.
In every case in which there is no contention, but it appears to the District Delegate doubtful whether the probate or letters of administration should or should not be granted, or when any question arises in relation to the grant, or application for the grant, of any probate or letters of administration, the District Delegate may, if he thinks proper, transmit a statement of the matter in question to the District Judge, who may direct the District Delegate to proceed in the matter of the application, according to such instructions as to the Judge may seem necessary, or may forbid any further proceeding by the District Delegate in relation to the matter of such application, leaving the party applying for the grant in question to make application to the Judge.
In every case in which there is contention, or the District Delegate is of opinion that the probate or letters of administration should be refused in his Court, the petition, with any documents which may have been filed therewith, shall be returned to the person by whom the application was made, in order that the same may be presented to the District Judge, unless the District Delegate thinks it necessary, for the purpose of justice, to impound the same, which he is hereby authorised to do; and, in that case, the same shall be sent by him to the District Judge.
When it appears to the District Judge or District Delegate that probate of a Will should be granted, he shall grant the same under the seal of his Court in the form set forth in Schedule VI.
When it appears to the District Judge or District Delegate that letters of administration to the estate of a person deceased, with or without a copy of the will annexed, should be granted, he shall grant the same under the seal of his Court in the form set forth in Schedule VII.
(1) Every person to whom any grant of letters of administration, other than a grant under section 241, is committed, shall give a bond to the District Judge with one or more surety or 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 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 not operate;
(b) the District Judge may demand a like bond from any person to whom probate is granted.
The Court may, on application made by petitioner and on being satisfied that the engagement of any such bond has not been kept, and upon such terms as to security, 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 on the said bond in his or their own name or names as if the same had been originally given to him or them instead of to the Judge of the Court, and shall be entitled to recover thereon, as trustees for all persons interested, the full amount recoverable in respect of any breach thereof.
No probate of a Will shall be granted until after the expiration of seven clear days, and no letters of administration shall be granted until after the expiration 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 or letters 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 so filed.
In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 (5 of 1908) in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.
Section 295 of the Indian Succession Act, 1925, addresses the procedure to be followed in contentious probate cases. It establishes that when there is a dispute regarding the grant of probate or letters of administration, the proceedings should take the form of a regular suit, as per the provisions of the Code of Civil Procedure, 1908.
Section 295 states that in any case before the District Judge where there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit. The petitioner for probate or letters of administration shall be treated as the plaintiff, and the opposing party shall be treated as the defendant.
The scope of Section 295 is limited to contentious probate proceedings. It does not apply to uncontested cases, which can be resolved summarily. The section ensures that when disputes arise, the matter is treated with the procedural rigor of a civil suit.
Section 295 does not prescribe specific punishments; however, failure to comply with its provisions may lead to procedural irregularities, which can affect the outcome of the probate proceedings.
This commentary provides a comprehensive overview of Section 295 of the Succession Act, 1925, highlighting its significance in the context of contentious probate proceedings.
(1) When a grant of probate or letters of administration is revoked or annulled under this Act, the person to whom the grant was made shall forthwith deliver up the probate or letters to the Court which made the grant.
(2) If such person wilfully and without reasonable cause omits so to deliver up the probate or letters, he shall be punishable with fine which may extend to one thousand rupees, or with imprisonment for a term which may extend to three months, or with both.
When a grant of probate or letters of administration is revoked, all payments bonafide made to any executor or administrator under such grant before the revocation thereof shall, notwithstanding such revocation, be a legal discharge to the person making the same; and the executor or administrator who has acted under any such revoked grant may retain and reimburse himself in respect of any payments made by him which the person 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 Jaina to whom section 57 does not apply, be in the discretion of the court to make an order refusing, for reasons to be recorded by it in writing, to grant any application for letters of administration made under this Act.
Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals.
(1) The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge.
(2) Except in cases to which section 57 applies, no High Court, in exercise of the concurrent jurisdiction hereby conferred over any local area beyond the limits of the towns 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 of administration until the State Government has, by a notification in the Official Gazette, authorised it so to do.
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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 provide for the succession of another person to the office of any such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate.
Where probate or letters of administration in respect of any estate has or have been granted under this Act, the High Court may, on application made to it, give to the executor or administrator any general or special directions in regard to the estate or in regard to the administration thereof.
A person who intermeddles with the estate of the deceased, or does any other act which belongs to the office of executor, while there is no rightful executor or administrator 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 or providing for his funeral or for the immediate necessities of his family or property, does not make an executor of his own wrong.
(2) Dealing in the ordinary course of business with goods of the deceased received from another does not 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 or legacy or receives paymen
When a person has so acted as to become an executor of his own wrong, he is answerable to the rightful executor or administrator, or to any creditor or legatee of the deceased, to the extent of the assets which may have come to his hands after deducting payments made to the rightful executor or administrator, and payments made in due course of administration.
An executor or administrator has the same power to sue in respect of all causes of action that survive the deceased, and may 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 special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, 1860 (45 of 1860) or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.
Illustrations
(i) A collision takes place on a railway in consequence of some neglect or default of an official, and a passenger is severely hurt, but not so as to cause death. He afterwards dies without having brought any action. The cause of action does not survive.
(ii) A sues for
(1) Subject to the provisions of sub-section (2), an 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 the bequest, sells the subject of it. The sale is valid.
(ii) The executor in the exercise of his discretion mortgages a part of the immovable estate of the deceased. The mortgage is valid.
(2) If the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, the general power conferred by sub-section (1) shall be subject to the following restrictions and conditions, namely:—
An executor or administrator may, in addition to, and not in 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 property belonging to any estate administered by him; and
(b) with the sanction of the High Court, on such religious, charitable and other objects, and on such improvements, as may be reasonable and proper in the case of such property.
An executor or administrator shall not be entitled to receive or retain any commission or agency charges at a higher rate than that for the time being fixed in respect of the Administrator-General by or under the Administrator-General’s Act, 1913 (3 of 1913).
If any executor or administrator purchases, either directly or indirectly, any part of the property of the deceased, the sale is voidable at the instance of any other person interested in the property sold.
When there are several executors or administrators, the powers of all may, in the absence of any direction to the contrary, be exercised 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 the
Upon the death of one or more of several executors or administrators, in the absence of any direction to the contrary in the Will or grant of letters of administration, all the powers of the office become vested in the survivors or survivor.
The administrator of effects unadministered has, with respect to such effects, the same powers as the original executor or administrator.
An administrator during minority has all the powers of an ordinary administrator.
When a grant of probate or letters of administration has been made to a married woman, she has all the powers of an ordinary executor or administrator.
It is the duty of an executor to provide funds for the performance of the necessary funeral ceremonies of the deceased in a manner suitable to his condition, if he has left property sufficient for the purpose.
(1) An executor or administrator shall, within six months from the grant of probate or letters of administration, or within such further time as the Court which granted the probate or letters may appoint, exhibit in that Court an inventory containing a full and true estimate of all the property in possession, and all the credits, and also all the debts owing by any person to which the executor or administrator is entitled in that character; and shall in like manner, within one year from the grant or within such further time as the said Court may appoint, exhibit an account of the estate, showing the assets which have come to his hands and the manner in which they have been applied or disposed of.
(2) The High Court may prescribe the form in which an inventory or account under this section is to be exhibited.
(3) If an executor or adminis
In all cases where a grant 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 the effects of the deceased all his movable and immovable property situate in 1[India] and the value of such property situate in each state shall be separately stated in such inventory, and the probate or letters of administration shall be chargeable with a fee corresponding to the entire amount or value of the property affected thereby wheresoever situate within 1[India].
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1. Subs. by Act 3 of 1951, sec.3 and Sch., for “the States”.
2. The words “of India” omitted by Act 48 of 1952, sec.3 and Sch.II.
Section 318 of the Indian Succession Act, 1925, deals with the inventory process required during probate or administration proceedings, specifically mandating the inclusion of property located in any part of India. This section plays a crucial role in ensuring comprehensive disclosure of the estate of the deceased for proper administration and distribution.
Section 318 states that in all cases where a grant of probate or letters of administration has been made, the inventory of the deceased's estate must include property situated in any part of India. The section emphasizes that such property must be accounted for during the process of estate administration.
The section itself does not specify direct punishment; however, failure to comply or submitting false inventories can lead to:- Contempt of Court: For non-compliance or misrepresentation.- Legal Penalties: Under general provisions for perjury or concealment, such as under the Indian Penal Code.- Revocation of Probate: If the inventory is found to be false or incomplete, the court may revoke or modify the grant.
This concise commentary underscores the importance of Section 318 in ensuring transparent, comprehensive estate administration across India, highlighting its procedural, legal, and policy significance.
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 of his death.
Funeral expenses to a reasonable amount, according to the degree and quality of the deceased, and death-bed charges, including fees for medical attendance and board and lodging for one month previous to his death, shall be paid before all debts.
The expenses of obtaining probate or letters of administration, including the costs incurred for or in respect of any judicial proceedings that may be necessary for administering the estate, shall be paid next after the funeral expenses and death-bed charges.
Wages due for services rendered to the deceased within three months next preceding his death by any labourer, artisan or domestic servant shall next be paid, and then the other debts of the deceased according to their respective priorities (if any).
Save as aforesaid, no creditor shall have a right of priority over another, but the executor or administrator, shall pay all such debts as he knows of, including his own, equally and rateably as far as the assets of the deceased will extend.
(1) If the domicile of the deceased was not in 1[India], the application of his movable property to the payment of 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 be entitled to share in the proceeds of the immovable estate of the deceased unless he brings such payment into account for the benefit of the other creditors.
(3) This section shall not apply where the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person.
Illustration
A dies, having his domicile in a country where instruments under seal have priority over instruments not under seal leaving movable property to the value of 5,000 rupees, and immovable property to
Debts of every description must be paid before any legacy.
Section 325 of the Indian Succession Act, 1925, is a fundamental provision that mandates the payment of debts before the distribution of legacies or bequests from the estate of a deceased person. It ensures that the liabilities of the deceased are settled prior to any transfer of property or inheritance to heirs or legatees, thereby protecting creditors' rights and maintaining the integrity of the estate.
Section 325 states:"Debts of every description must be paid before any legacy."This provision establishes a clear legal obligation that all debts, whether secured or unsecured, must be discharged in full before any property or assets are distributed as legacies to beneficiaries.
Section 325 itself does not prescribe specific punishments; rather, it is a mandatory legal obligation. Failure to comply can lead to:- Legal liability: Executors or estate officials may be held accountable for neglecting debt payments.- Liability for breach: Creditors or beneficiaries may seek legal remedies for non-compliance.- Criminal implications: In cases of fraudulent concealment or willful neglect, criminal proceedings under relevant sections (e.g., Section 420 IPC for cheating) may be initiated.
Section 325 of the Indian Succession Act, 1925, enforces the principle that estate liabilities must be settled prior to inheritance, safeguarding the rights of creditors and maintaining the legal sanctity of estate administration. Executors and administrators are bound by this provision, and non-compliance can lead to serious legal repercussions. Its scope extends across all estate types, and its interplay with other laws ensures a comprehensive framework for estate settlement.
**- [Lala Goverdhonedas VS Harish Chandra]- [Mahaveer Prasad VS Kanta Devi]- [Mohan Lal VS A. D. J. Raisinghnagar]- [Prasanna S, Menon VS Narayanan Nair]- [MARY ROY VS STATE OF KERALA]- [01700037373]- [Ram Krishna Puri VS Gurpyari Devi]
If the estate of the deceased is subject to any contingent liabilities, an executor or administrator is not bound to pay any legacy without a sufficient indemnity to meet the liabilities whenever they may become due.
If the assets, after payment of debts, necessary expenses and specific legacies, are not sufficient to pay all the general legacies in full, the latter shall abate or be diminished in equal proportions, and, in the absence of any direction to the contrary in the Will, the executor has no right to pay one legatee in preference to another, or to retain any money on account of a legacy to himself or to any person for whom he is a trustee.
Where there is a specific legacy, and the assets are sufficient for the payment of debts and necessary expenses, the thing specified must be delivered to the legatee without any abatement.
Where there is a demonstrative legacy, and the assets are sufficient for the payment of debts and necessary expenses, the legatee has a preferential claim for payment of his legacy out of the fund from which the legacy is directed to be paid until such fund is exhausted and if, after the fund is exhausted, part of the legacy still remains unpaid, he is entitled to rank for the remainder against the general assets as for a legacy of the amount of such unpaid remainder.
If the assets are not sufficient to answer the debts and the specific legacies, an abatement shall be made from the latter rateably in proportion to their respective amounts.
Illustration
A has bequeathed to B a diamond ring valued at 500 rupees, and to C a horse, valued at 1,000 rupees. It is found necessary to sell all the effects of the testator; and his assets, after payment of debts, are only 1,000 rupees. Of the sum rupees 333-5-4 are to be paid to B, and rupees 666-10-8 to C.
For the purpose of abatement, a legacy for life, a sum appropriated by the Will to produce an annuity, and the value of an annuity when no sum has been appropriated to produce it, shall be treated as general legacies.
The assent of the executor or administrator is necessary 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. The Bank has no authority to deliver the securities, nor B a right to take possession of them, without the assent of the executor.
(ii) A by his Will has bequeathed to C his house in Calcutta in the tenancy of B. C is not entitled to receive the rents without the assent of the executor or administrator.
(1) The assent of the executor or administrator to a specific bequest shall be sufficient to divest his interest as executor or administrator therein, and to transfer the subject of the bequest of the legatee, unless the nature or the circumstances of the property require that it shall be transferred in a particular way.
(2) This assent may be verbal, and it may be either express or implied from the conduct of the executor or administrator.
Illustrations
(i) A horse is bequeathed. The executor requests the legatee to dispose of it, or a third party proposes to purchase the horse from the executor, and he directs him to apply to the legatee. Assent to the legacy is implied.
(ii) The interest of a fund is directed by the Will to be applied for the mai
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 a mortgage for 10,000 rupees. The executor assents to the bequest, on condition that B shall within a limited time pay the amount due on the mortgage at the testator’s death. The amount is not paid. There is no assent.
(ii) The executor assents to a bequest on condition that the legatee shall pay him a sum of money. The payment is not made. The assent is nevertheless valid.
(1) When the executor or administrator is a legatee, his assent to his own legacy is necessary to complete his title to it, in the same way as it is required when the bequest is to another person, and his assent may, in like manner, be expressed or implied.
(2) Assent shall be implied if in his manner of administering the property he does any act which is referable to his character of legatee and is not referable to his character of executor or administrator.
Illustration
An executor takes the rent of a house or the interest of Government securities bequeathed to him, and applies it to his own use. This is assent.
The assent of the executor or administrator to a legacy gives effect 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 operates for the benefit of the purchaser and completes his title to the legacy.
(ii) A bequeaths 1,000 rupees to B with interest from his death. The executor does not assent to his legacy until the expiration of a year from A’s death. B is entitled to interest from the death of A.
An executor or administrator is not bound to pay or deliver any legacy until the expiration of one year from the testator’s death.
Illustration
A by his Will directs his legacies to be paid within six months after his death. The executor is not bound to pay them before the expiration of a year.
Where an annuity is given by a Will and no time is fixed for its commencement, it shall commence from the testator’s death, and the first payment shall be made at the expiration of a year next after that event.
Where there is a direction that the annuity shall be paid quarterly or monthly, the first payment shall be due at the end of the first quarter, or first month, as the case may be, after the testator’s death; and shall, if the executor or administrator thinks fit, be paid when due, but the executor or administrator shall not be bound to pay it till the end of the year.
(1) Where there is a direction that the first payment of an annuity shall be made within one month or any other division of time from the death of the testator or on a day certain, the successive payments are to be made on the anniversary of the earliest 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 the annuity 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 be invested in such securities as the High Court may by any general rule authorise or direct, and the proceeds thereof shall 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 a sum sufficient to meet it in securites 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 is given and no fund is charged with its payment or appropriated by the Will to answer it, a Government annuity of the specified amount shall be purchased, or, if no such annuity can be obtained, then a sum sufficient to produce the annuity shall be invested for that purpose in securities of the kind mentioned in section 341.
Where a bequest is contingent, the executor or administrator is not bound to invest the amount of the legacy, but may transfer the whole residue of the estate to the residuary legatee, if any, on his giving sufficient security for the payment of the legacy, if it shall become due.
(1) Where the testator has bequeathed the residue of his estate to a person for life without any direction to invest it in any particular securities, so much thereof as is not at the time of the testator’s decease invested in securities of the kind mentioned in section 341 shall be converted into money and invested in such securities.
(2) This section shall not apply if the deceased was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person.
Where the testator has bequeathed the residue of his estate to a person for life with a direction that it shall be invested in certain specified securities, so much of the estate as is not at the time of his death invested in securities of the specified kind shall be converted into money and invested in such securities.
Such conversion and investment as are contemplated by sections 345 and 346 shall be made at such times and in such manner as the executor or administrator thinks fit; and, until such conversion and investment are completed, the person who would be for the time being entitled to the income of the fund when so invested shall receive interest at the rate of 4 per cent. per annum upon the market-value (to be computed as at the date of the testator’s death) of such 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 annum when 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 to the immediate payment or possession of the money or thing bequeathed, but is a minor, and there is no direction in the Will to pay it to any person on his behalf, the executor or administrator shall pay or deliver the same into the Court of the District Judge, by whom or by whose District Delegate the probate was, or letters of administration with the Will annexed were, granted, to the account of the legatee, unless the legatee 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 his account.
(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)
The legatee of a specific legacy is entitled to the clear produce thereof, if any, from the testator’s death.
Exception.—A specific bequest, contingent in its terms, does not comprise the produce of the legacy between the death of the testator and the vesting of the legacy. The clear produce of it forms part of the residue of the testator’s estate.
Illustrations
(i) A bequeaths his flock of sheep to B. Between the death of A and delivery by his executor the sheep are shorn or some of the ewes produce lambs. The wool and lambs are the property of B.
(ii) A bequeaths his Government securities to B, but postpones the delivery of them till the death of C. The interest which falls due between the death of A and the death of C belongs to B, and must, unle
The legatee under a general residuary 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 which may accrue upon the fund bequeathed between the death of the testator and the vesting of the legacy. Such income goes as undisposed of.
Illustrations
(i) The testator bequeaths the residue of his property to A, a minor, to be paid to him when he shall complete the age of 18. The income from the testator’s death belongs to A.
(ii) The testator bequeaths the residue of his property to A when he shall complete the age of 18. A, if he completes that age, is entitled to receive that residue. The income which has accrued in respect of it s
Where no time has been fixed for the payment of a general legacy, interest begins to run from expiration of one year from the testator’s death.
Exception.—(1) Where the legacy is bequeathed in satisfaction of a debt, interest runs from the death of the testator.
(2) Where the testator was a parent or a more remote ancestor of the legatee, or has put himself in the place of a parent of 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 the testator’s estate.
Exception.—Where the testator was a parent or a more remote ancestor of the legatee, or has put himself in the place of a parent of the legatee and the legatee is a minor, the legacy shall bear interest from the death of the testator, unless a specific sum is given by the Will for maintenance, or unless the Will contains a direction to the contrary.
The rate of interest shall be four per cent. per annum in all cases except when the testator was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, in which case it shall be six per cent. per annum.
No interest is payable on the arrears of an annuity within the first year from the death of the testator, although a period earlier than the expiration of that year may have been fixed by the Will for making the first payment of the annuity.
Where a sum of money is directed to be invested to produce an annuity, interest is payable on it from the death of the testator.
When an executor or administrator has paid a legacy under the order of a Court, he is entitled to call upon the legatee to refund in the event of the assets proving insufficient to pay all the legacies.
When an executor or administrator has voluntarily paid a legacy, he cannot call upon a legatee to refund in the event of the assets proving insufficient to pay all the legacies.
When the time prescribed by the Will for the performance of a condition has elapsed, without the condition having been performed, and the executor or administrator has thereupon, without fraud, distributed the assets; in such case, if further time has been allowed under section 137 for the performance of the condition, and the condition has been performed accordingly, the legacy cannot be claimed from the executor or administrator, but those to whom he has paid it are liable to refund the amount.
When the executor or administrator has paid away the assets in legacies, and he is afterwards obliged to discharge a debt of which 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 High Court may, by any general rule, prescribe or, if no such rule has been made, as the High Court would give in an administration-suit, for creditors and others to send in to him their claims against the estate of the deceased, he shall, at the expiration of the time therein named for sending in claims, be at liberty to distribute the assets, or any part thereof in discharge of such lawful claims as he knows of, and shall not be liable for the assets so distributed to any person of whose claim he shall not have had notice at the time of such distribution:
Provided that nothing herein contained shall prejudice the right of any creditor or claimant to follow the 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 his debt may call upon a legatee who has received payment of his legacy to refund, whether the assets of the testator’s estate were or were not sufficient at the time of his death to pay both debts and legacies; and whether the payment of the legacy by the executor or administrator was voluntary or not.
If the assets were sufficient to satisfy all the legacies at the time of the testator’s death, a legatee who has not received payment of his legacy, or who has been compelled to refund under section 361, cannot oblige one who has received payment in full to refund, whether the legacy were paid to him with or without suit, although the assets have subsequently become deficient by the wasting of the executor.
If the assets were not sufficient to satisfy all the legacies at the time of the testator’s death, a legatee who has not received payment of his legacy must, before he can call on a satisfied legatee to refund, first proceed against the executor or administrator if he is solvent; but if the executor or administrator is insolvent or not liable to pay, the unsatisfied legatee can oblige each satisfied legatee to refund in proportion.
The refunding of one legatee to another shall not exceed the sum by which the satisfied legacy ought to have been reduced if the estate had been properly administered.
Illustration
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 paid their 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 the deceased’s property, after payment of debts and legacies, shall be paid to the residuary legatee when any has been appointed by the Will.
Where a person not having his domicile in 1[India] has died leaving assets both in 1[India] and in the country in which he had his domicile at the time of his death and there has been a grant of probate or letters of administration in 1[India] with respect to the assets there and a grant of administration in the country of domicile with respect to the assets in that country, the executor or administrator, as the case may be, in 1[India], after having given such notices as are mentioned in section 360, and after having discharged, at the expiration of the time therein named, such lawful claims as he knows of, may, instead of himself distributing any surplus or residue of the deceased’s property to persons residing out of 1[India] who are entitled thereto transfer, with the consent of the executor or administrator, as the case may be, in the country of domicile, the surplus or residue to him for distribution to those persons. Section 367 of the Indian Succession Act, 1925, deals with the transfer of assets from India to an executor or administrator in the country of domicile for distribution. It facilitates the movement of estate assets across borders to ensure proper distribution according to the testator’s or intestate’s wishes, especially when the deceased had assets both within and outside India. Section 367 provides the legal framework for transferring assets of a person not domiciled in India but leaving assets in India, to their executor or administrator in the country of their domicile for distribution. It applies to cases where the deceased’s domicile is outside India, and their assets are located within India, allowing the executor or administrator in the domicile country to manage and distribute those assets. Section 367 applies primarily to cross-border succession cases involving assets in India and a foreign domicile of the deceased. It facilitates the transfer of assets to the foreign executor or administrator, ensuring that the estate is managed and distributed in accordance with Indian law and the law of the domicile country. It also aims to streamline the process, prevent illegal transfers, and ensure proper legal procedures are followed. Section 367 itself does not prescribe specific punishments. However, violation of its provisions, such as illegal transfer or misappropriation of assets, may attract penalties under general provisions of the Indian Succession Act, 1925, or other applicable laws, including penalties for breach of trust or criminal breach of trust under the Indian Penal Code. Section 367 plays a crucial role in cross-border succession, ensuring assets can be transferred smoothly to the lawfully appointed executor or administrator in the domicile country, thus facilitating international estate management. Its effective implementation depends on adherence to procedural requirements and proper legal channels. This concise legal commentary synthesizes the provisions, scope, and implications of Section 367 of the Indian Succession Act, 1925, supported by references and legal principles derived from authoritative sources.Legal Commentary on Section 367 of the Successor Act, 1925
Introduction
What does Section 367 Say?
Essential Ingredients
Scope of Section 367
Punishment for Section
Legal Comments (Summary from Sources)
Final Notes
Legal Comments (Bullet Point Summary)
When an executor or administrator misapplies the estate of the deceased or subjects it to loss or damage, he is liable to make good the loss or damage so occasioned.
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 proper time. The executor is liable to make good the loss.
(iii) The deceased had a lease of less value than the rent payable for it, but terminable on notice at a particular time. The executor neglects to give the notice. He is liable to make good the loss.
When an executor or administrator occasions a loss to the estate by neglecting to get in any part of the property of the deceased, he is liable to make good the amount.
Illustrations
(i) The executor absolutely releases a debt due to the deceased from a solvent person, or compounds with a debtor who is able to pay in full. The executor is liable to make good the amount.
(ii) The executor neglects to sue for a debt till the debtor is able to plead that the claim is barred by limitation and the debt is thereby lost to the estate. The executor is liable to make good the amount.
(1) A succession certificate (hereinafter in this Part referred to as a certificate) shall not be granted under this Part with respect to any debt or security to which a right is required by section 212 or section 213 to be established by letters of administration or probate:
Provided that nothing contained in this section shall be deemed to prevent the grant of a certificate to any person 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 of administration 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 a State Government;
&
Section 370 of the Indian Succession Act, 1925, governs the issuance of succession certificates, which are vital legal tools enabling successors to realize debts and securities of the deceased. It sets forth restrictions and procedural guidelines for granting such certificates, ensuring proper legal validation and protection of rights.
Section 370 primarily restricts the grant of succession certificates in respect of debts or securities where probate or letters of administration are required under Sections 212 and 213. It stipulates that a certificate shall not be granted for such debts or securities unless the relevant probate or administration has been obtained, with certain exceptions. It also defines "security" broadly to include various financial instruments and assets.
Section 370 applies to claims involving debts and securities, primarily financial instruments, and restricts the issuance of certificates where probate or letters of administration are necessary. It aims to prevent unauthorized or premature claims and ensures that rights are established through proper legal channels. The section also clarifies that certain assets like bank lockers, licenses, or non-financial assets are outside its scope unless explicitly declared as securities.
While Section 370 itself does not specify punishments, violations, such as issuing certificates without complying with its provisions, can lead to legal consequences including:- Revocation of the certificate (Section 383)- Legal liability for issuing certificates contrary to the section- Potential penalties under general provisions for fraud or misrepresentation- Civil or criminal proceedings if wrongful issuance results in loss or fraud
In summary, Section 370 of the Indian Succession Act, 1925, serves as a crucial legal safeguard limiting the issuance of succession certificates to debts and securities, requiring proper legal proof such as probate or letters of administration unless exceptions apply. Its scope excludes assets like bank lockers, licenses, or immovable properties unless explicitly declared as securities, thereby ensuring that rights are established through appropriate legal channels and preventing premature or unauthorized claims.
**- [Pramila Dhanraj Gaidhane & others VS Life Insurance Corporation of India & others]- [04200004907]- [STATE BANK OF INDIA VS NETAI CH. POREL]- [Sundara Devi (D/O Sri Baijnth ) VS Ram Adhar]- [Budhwant Kaur VS Rawat Singh]- [Iqbal Singh VS Everyone]- [Iqbal Singh VS Every one]- [Mitali Shah VS Shafali Shah]- [Pintoo VS Bhoop Singh]- [Inkollu Sasikala @ Shyamala, Nellore VS Inkollu Venkata Murthy]
The District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death, or, if at that time he had no fixed place of residence, the District Judge, within whose jurisdiction any part of the property of the deceased may be found, may grant a certificate under this Part.
(1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908 (5 of 1908) for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:—
(a) the time of the death of the deceased;
(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits;
(c) the family or other near relatives of the deceased and their respective residences;
(d) th
Section 372 of the Indian Succession Act, 1925, provides a legal mechanism for the issuance of a Succession Certificate to lawful heirs or persons interested in the estate of a deceased individual. It is a vital procedural provision facilitating the transfer of movable property and debts of the deceased, ensuring orderly succession and estate management.
Section 372 authorizes the application for a Succession Certificate to be made to the District Judge by a petition signed and verified by or on behalf of the applicant. The section details the procedure for claiming rights over debts and securities due to the deceased and mandates that the certificate be granted to persons entitled under law, based on the proofs of heirship and relationship.
Under Section 372, false averments or false statements in the application can lead to punishment for perjury or false declaration as per the Indian Penal Code, ensuring integrity in proceedings.
Section 372 of the Indian Succession Act, 1925, plays a pivotal role in facilitating the smooth transfer of movable assets and debts of a deceased person to rightful heirs, based on lawful proof of heirship. While it simplifies estate settlement for movable property, it explicitly excludes immovable property, which requires separate probate proceedings. The section emphasizes the importance of truthful, verified applications, timely filing, and proper evidence, ensuring that the process remains fair, efficient, and legally sound.
Note: The references are based on the provided sources and are formatted as per instructions.
(1) If the District Judge is satisfied that there is ground for entertaining the application, he shall fix a day for the hearing thereof and cause notice of the application and of the day fixed for the hearing—
(a) to be served on any person to whom, in the opinion of the Judge, special notice of the application should be given, and
(b) to be posted on some conspicuous part of the court-house and 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 summary manner the right to the certificate.
(2) When the Judge decides the right thereto to belong to the applicant, t
When the District Judge grants a certificate, he shall therein specify the debts and securities setforth in the application for the certificate, and may thereby empower the person 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 of them.
(1) The District Judge shall in any case in which he proposes to proceed under sub-section (3) or sub-section (4) of section 373, and may, in any other case, require, as a condition precedent to the granting of a certificate, that the person to whom he proposes to make the grant shall give to the Judge a bond with one or more surety or sureties, or other sufficient security, for rendering an account of debts and securities received by him and for indemnity of persons who may be entitled to the whole or any part of those debts and securities.
(2) The Judge may, on application made by petitioner and on cause shown to his satisfaction, and upon such terms as to security, or providing that the money received be paid into Court, or otherwise, as he thinks fit, assign the bond or other security to some proper person, and that person shall thereupon be entitled to sue thereon in his own n
(1) A District Judge may, on the application of the holder of a certificate 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 is extended had been originally specified therein.
(2) Upon the extension of a certificate, powers with respect to the receiving of interest or dividends on, or the negotiation or transfer of, any security to which the certificate has been extended may be conferred, and a bond or further bond or other security for the purposes mentioned in section 375 may be required, in the same manner as upon the original grant of a certificate.
Certificates shall be granted and extensions of certificates shall be made, as nearly as circumstances admit, in the forms set forth in Schedule VIII.
Where a District Judge has not 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 the Judge may, on application made by petitioner and on cause shown to his satisfaction, amend the certificate by conferring any of the powers mentioned in section 374 or by substituting any one for any other of those powers.
(1) Every application for a certificate or for the extension of a certificate shall be accompanied by a deposit of a sum equal to the fee payable under the Court-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 the direction 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 refunded to the person who deposited it.
A certificate under this Part shall have effect throughout 1[India] 2[***].
3[This section shall apply in 1[India]4 after the separation of Burma and Aden from India to certificates granted in Burma and Aden before the date of the separation, or after that date in proceedings which were pending at that date.]
5[It shall also apply in 1[India] 6[***]7 after the separation of Pakistan from India to certificates granted before the date of the separation, or after that date in proceedings pending at that date in any of the territories which on that date constituted Pakistan.]
—————
1. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.
2. The words “of India” omitted by the A.O. 1950.
Subject to the provisions of this Part, the certificate of the District Judge shall, with respect to the debts and securities specified therein, be conclusive as against the persons owing such debts or liable on such securities, and shall, not- withstanding any contravention of section 370, or other defect, afford full indemnity to all such persons as regards all payments made, or dealings had, in good faith in respect of such debts or securities to or with the person to whom the certificate was granted.
Where a certificate in the form, as nearly as circumstances admit, of Schedule VIII—
(a) has been granted to a resident within a foreign State by an Indian representative accredited to that State, or
(b) has been granted before the 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 in such 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 been extended by him in such form,
the certificate shall, when stamped in accordance with the provisions of the Court-Fees Act, 1870
Section 382 of the Indian Succession Act, 1925 deals with the recognition and validity of succession certificates and inheritance-related documents issued by Indian representatives in foreign states and certain other specific cases. This provision was substituted by Act 1957, Section 2, and is crucial for determining the legal effect of certificates granted in foreign jurisdictions or Part B States prior to their integration.
Section 382 states: "Effect of certificate granted or extended by Indian representative in Foreign State and in certain other cases.—Where a certificate..." The section primarily concerns the validity and legal recognition of inheritance certificates issued in foreign countries or specific Indian states. [Source: LAWGIST]
The section also contains clause (b), which addresses certificates granted before the commencement of the Part B States (Laws) Act, 1951 (3 of 1951), to a resident within any Part B State. [Source: Indian Kanoon]
The scope of Section 382 extends to:
While Section 382 itself does not prescribe specific punishment, related provisions under the Indian Succession Act, 1925 impose penalties for non-compliance. If a certificate becomes invalid or is superseded, the holder is required to surrender it to the District Court. Failure to do so renders the holder punishable with a fine of up to Rs. 1,000. [Source: MSR LAW BOOKS]
Substitution of Section - Section 382 was substituted by Act 1957, Section 2, replacing the original provision with a more comprehensive framework for foreign certificate recognition. [Source: LAWGIST]
Foreign Certificate Validity - The section validates inheritance certificates issued in foreign countries or specific Indian states, ensuring cross-jurisdictional recognition. [Source: LAWGIST]
Part B States Transition - Clause (b) specifically addresses certificates granted before the Part B States (Laws) Act, 1951, ensuring legal continuity after state integration. [Source: Draft Bot Pro; Indian Kanoon]
Residential Requirement - The certificate under clause (b) must have been granted to a resident within any Part B State, limiting its application to pre-1951 certificates. [Source: Indian Kanoon]
Temporal Limitation - The applicability of clause (b) is strictly limited to certificates granted before March 1951, when the Part B States (Laws) Act came into force. [Source: Indian Kanoon]
Certificate Form Requirement - The certificate must be "in the form, as nearly as may be" prescribed, ensuring standardization of succession documents. [Source: KanoonGPT]
Indian Representative Authority - The section empowers Indian representatives in foreign states to grant certificates with legal effect in India. [Source: KanoonGPT]
Surrender Obligation - When a certificate becomes invalid or is superseded, the holder must surrender it to the District Court, ensuring proper documentation control. [Source: MSR LAW BOOKS]
Fine Penalty - Non-surrender of invalidated certificates attracts a fine of up to Rs. 1,000, though this penalty is under related provisions rather than Section 382 itself. [Source: MSR LAW BOOKS]
Self-Contained Code - Part X of the Indian Succession Act provides a self-contained code regulating succession certificates for debts and securities, with Section 382 addressing foreign recognition. [Source: Reading Material Succession Certificate]
Interstate Succession Context - The section operates within the broader framework of intestate and testamentary succession, applying to deaths after January 1, 1866. [Source: India Code]
Domicile Considerations - While the section addresses foreign certificates, related provisions note that a wife's domicile no longer follows her husband's if separated by court sentence or if husband is undergoing sentence. [Source: India Code]
Procedural Nature - Proceedings for grant of succession certificates are procedural in nature, as Sections 373, 383(e), and 387 make clear. [Source: MANU/DE/2145/2020]
Legal Declaration - The section facilitates the legal declaration of intention regarding property distribution after death, consistent with the Act's overall purpose. [Source: Samisti legal]
Historical Context - The section reflects the post-independence legal consolidation when Part B States were integrated into the Indian Union. [Source: Draft Bot Pro]
Maharashtra Amendment - The Indian Succession Act, 1925 has been amended by Maharashtra, though Section 382's core provisions remain under central legislation. [Source: LegitQuest]
Certificate Invalidity - If a certificate becomes invalid due to supersession, the holder's duty to surrender arises, enforceable through fine. [Source: MSR LAW BOOKS]
Cross-Reference to Probate - The section complements probate and letters of administration provisions, as Section 382(b) hypothetical cases involve revocation of probate grants. [Source: Draft Bot Pro]
District Court Jurisdiction - The District Court is the designated authority for receiving surrendered certificates and imposing fines for non-compliance. [Source: MSR LAW BOOKS]
A certificate granted under this Part may be revoked for any of the following 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 the concealment 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 of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently;
(d) that the certificate has become useless and inoperative through circumstances;
(e) that a decree or order made by a competent Court in
(1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District judge, on application being made therefor, to grant it accordingly, in supersession of the certificate, if any, already granted.
(2) An appeal under sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908 (5 of 1908).
(3) Subject to the provisions of sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 (5 of 1908), as applied by section 141 of that Co
Save as provided by this Act, a certificate granted thereunder in respect of any of the effects of a deceased person shall be invalid if there has been a previous grant of such a certificate or of probate or letters of administration 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 the certificate having been revoked under section 383, or by reason of the grant of a certificate to a person named in an appellate order under section 384, or by reason of a certificate having been previously granted, or for any other cause, all payments made or dealings had, as regards debts and securities specified in the superseded or invalid certificate, to or with the holder of that certificate in ignorance of its supresession 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 to bar the trial of the same question in any suit or in any other proceeding between the same parties, and nothing in this Part shall be construed to affect the liability of any person who may receive the whole or any part of any debt or security, or any interest or dividend on any security, to account therefor to the person lawfully entitled thereto.
(1) The State Government may by notification in the Official Gazette, invest any Court inferior in grade 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 concurrent jurisdiction with the District Judge in the exercise of all the powers conferred by this Part upon the District Judge, and the provisions of this Part relating to the District Judge shall apply to such an inferior Court as if it were a District Judge:
Provided that an appeal from any such order of an inferior Court as is mentioned in sub-section (1) of section 384 shall lie to the District Judge, and not to the High Court, and that the District Judge may, if he thinks fit, by his order on the appeal, make any such declaration and direction a
(1) When a certificate under this Part has been superseded or is invalid from any of the causes mentioned in section 386, the holder thereof shall, on the requisition of the Court which granted it, deliver it up to that Court.
(2) If he wilfully and without reasonable cause omits so to deliver it up, he shall be punishable with fine which may extend to one thousand rupees, or with imprisonment for a term which may extend to three months or with both.
Notwithstanding anything in Bombay Regulation No.VIII of 1827 the provisions of section 370, sub-section (2), section 372, sub-section (1), clause (f), and sections 374,375,376,377,378,379,381,383,384,387,388 and 389 with respect to certificates under this Part and applications therefor, and of section 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 that Regulation and applications made for certificates thereunder, after the 1st day of May, 1889 and to the exhibition 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 been entitled; or
(iv) affect the Administrator General’s Act, 1913 1(3 of 1913).
—————
1. Now the Administrator General Act, 1963 (45 of 1963).
[Rep. by the Repealing Act, 1927 (12 of 1927), sec.2 and Sch.]
SCHEDULE I
(See Section 28)
TABLE OF CONSANGUINITY
1[SCHEDULE II
PART I
(See section 54)
(1) Father and mother.
(2) Brothers and sisters (other than half brothers and sisters) and lineal descendants of such of them as shall have predeceased the intestate.
(3) Paternal and maternal grandparents.
(4) Children of paternal and maternal grandparents and the lineal descendants of such of them as have predeceased the intestate.
(5) Paternal and maternal grandparents’ parents.
(6) Paternal and maternal grandparents’ parents’ chil
SCHEDULE III
(See section 57)
Sections 59, 61, 62, 63, 64, 68, 70, 71, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 95, 96, 98, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 3[117], 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132,133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189 and 190.
Restrictions and modifications in application of foregoing sections
1. Nothing therein contained shall authorise a testator to bequeath property which he
Schedule 3 of the Indian Succession Act, 1925, provides specific provisions and restrictions applicable to wills and codicils made by Hindus after January 1, 1927. It aims to regulate testamentary dispositions, ensuring they conform to legal restrictions, especially concerning interests in property that Hindus can create through wills.
Schedule 3 enumerates the sections of the Succession Act, 1925, that apply to Hindu wills, with modifications and restrictions. It emphasizes that:- Certain sections (e.g., Sections 87, 111-116, 119) govern the interpretation and validity of wills.- Wills cannot create interests in property that Hindus could not have created before September 1, 1870.- Bequests to unborn persons or classes are subject to specific rules, with some provisions making such bequests void if they violate the limitations.- The Schedule clarifies the scope of applying Sections 113 and 114, concerning remote or contingent interests, and the validity of bequests to classes or persons not in existence at the time of the testator's death.
Note: The references are based on the provided sources and general legal principles derived from Schedule 3 of the Indian Succession Act, 1925.
SCHEDULE IV
[See section 274 (2)]
I, A.B., Registrar (or as the case may be) of the High Court of Judicature at........ (or as the case may be) hereby certify that on the .......day of ........, the High Court of Judicature at..... (or as the case may be) granted probate of the Will (or letters of administration of the estate) of C.D. late of...... deceased, to E.F. of....... and G.H. of....... and that such probate (or letters) has (or have) effect over all the property of the deceased throughout 1[India] 2[***].
----------
1. Subs. by Act 51 of 1991, sec.7.
2. Subs. by Act 30 of 2001, Second Schedule (w.e.f. 3-9-2001).
SCHEDULE V
[See section 284 (4)]
Let nothing be done in the matter of the estate of A.B., late of...... deceased, who died on the...... day of........ at........ without notice to C.D. of.........
Schedule 5 of the Indian Succession Act, 1925, delineates the legal framework governing succession to both immovable and movable properties of deceased persons in India. It primarily clarifies the applicable law based on domicile and property type, serving as a crucial guide in inheritance law.
Schedule 5 specifies that:- Succession to immovable property in India shall be governed by Indian law, regardless of the domicile of the deceased [Source: ""]- Succession to movable property shall be governed by the law of the country where the deceased had their domicile at the time of death [Source: ""]- It establishes that only one domicile influences the succession to moveables [Source: ""]
Note: The references are based on the provided sources, primarily highlighting the content related to Schedule 5 and its legal implications.
SCHEDULE VI
(See section 289)
I, ........., Judge of the District of......... [or Delegate appointed for granting probate or letters of administration in (here insert the limits of the Delegate’s jurisdiction)], hereby make known that on the................... day of...... in the year......, the last Will of........ late of........., a copy whereof is here unto annexed, was proved and registered before me, and that administration of the property and credits of the said deceased, and in any way concerning his Will was granted to......., the executor in the said will named, he having undertaken to administer the same, and to make a full and true inventory of the said property and credits and exhibit the same in this Court within six months from the date of this grant or within such further time as
SCHEDULE VII
(See section 290)
I, ........, Judge of the District of......... [or Delegate appointed for granting probate or letters of administration in (here insert the limits of the Delegate’s jurisdiction)], hereby make known that on the..... day of..... letters of administration (with or without the Will annexed, as the case may be), of the property and credits of......, late of........, deceased, were granted to......, the father (or as the case may be) of the deceased, he having undertaken to administer the same and to make a full and true inventory of the said property and credits and exhibit the same in this Court, within six months from the date of this grant or within such further time as the Court may, from time to time, appoint, and also to render to this Court a true account of the said property and credits within one year
SCHEDULE VIII
[See section 377]
Forms Of Certificate And Extended Certificate
In the court of
To A.B.
Whereas you applied on the...... day of...... for a certificate under Part X of the Indian Succession Act, 1925, in respect of the following debts and securities, namely:-
Debts
Serial Number
1 [Name of debtor]
Amount of debts, including interest on date of application for certificate
Description and date of instrument, if any, by which the debt is secured
&nbs
SCHEDULE 9
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