FAMILY LAW -II NOTES

INDIAN SUCCESSION ACT, 1925

SECTION 5 - Law regulating succession to deceased person's immoveable and
moveable property, respectively. -(1) Succession to the immoveable property in [India] of a
person deceased shall be regulated by the law of [India], wherever such person may have had
his domicile at the time of his death.

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

Illustrations

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

What is domicile.-- The word 'domicile' is not defined in this Act. Writers on private
international law are agreed that it is impossible to lay down an absolute definition of
'domicile'. The simplest definition given by Chatty J, in Craignish v. Craignish, is 'that place
is properly the domicile of a person in which his habitation is fixed without any present
intention of removing therefrom. It is defined by Halsbury as 'A person is domiciled in that
country in which he either has or is deemed by law to have his permanent home.
Be that as it may two constituent elements that are necessary by English Law for the
existence of domicile are (1) a residence of a particular kind, and (2) an intention of a
particular kind.'.

Classification of domicile.-- Domicile has been classed under three heads.

(1) By birth.-- This is called domicile of origin: (ss 7 and 8).
(2) By choice.-- Sections 10, 11, 12, 13.
(3) By Operation of law.-- Sections 14-18. A person can only have one domicile (s. 6).

Sub-section (1): Succession to immovables.-- 'Immovable property' in the General Clauses

Act 10 of 1897 includes land, benefits to arise out of land, and things attached to the earth or
permanently fastened to anything attached to the earth.

According to this sub-section, succession to the immovables in India shall be regulated by the
law of India but not the question relating to the status of the parties. Status is decided by the
law of domicile. Under the English law, the general rule is that all aspects of succession,
intestate or testamentary, are regulated by the lex situs. The THE INDIAN SUCCESSION
ACT embodies the same principles. It was held that succession to immovable property is
governed by lex situs of the immovable property. 26. The Kerala High Court had occasion to
consider the question in Sankaran Govindan v. Lakshmi Bharathi, wherein it was held that
succession to immovable property is governed by lex situs and, therefore, English law
applied. In that case, immovable property was situated in Sheffield in England. A further
question was raised in that case, it when the immovable property has been converted into
cash, it is movable property and hence lex domicile', should govern succession. It was held
that since the interest left by the deceased was immovable property, the succession to it
would be governed by lex situs even if the property is converted by the administration into
cash. On this aspect the Supreme Court also confirmed the decision of the Kerala High Court.
This is in accordance with the principles of international law that the succession to
immovable property of an intestate is determined by the lex loci rei sitae, i.e. by the law of
the land, and not by the law of domicile of the owner. Accordingly, even in the case of a
person governed by this Act if such person dies leaving immovable property outside India,
succession to such property will be determined by lex loci rei sitae.

There is, however, an exception to this rule in case of a foreign or feudatory state. If such a
state holds immovable property and if there is no prohibition by international law to such
holding, the rule laid down in this section does not apply.

Sub-section (2): Succession to movables.-- In the General Clauses Act 10 of 1897, movable
property means property of every description except immovable property.
Succession to the movables of a person deceased is regulated by the law of the country in
which the deceased had his domicile at the time of his death. It seems to be clear that intestate
succession to movables is governed by lex domicile of the deceased at the time of his death.
The courts will have to determine two questions in such a case:
(i) in what country was the person domiciled at the date of his death, and
(ii) what was the law that the country of domicile applied to such a person.
In Re estate of Maldonado deceased. a Spanish subject domiciled and residing in Spain,
died intestate leaving no next of kin and leaving movable property in England. The state of
Spain claimed grant of administration as the sole universal heir to the property by Spanish
law. The Treasury Solicitor claimed the property as bona vacantia. It was held that as the
deceased died leaving a successor, Crown could not claim as bona vacantia and the state of
Spain took the property as ultimate heirs.

First question.-- In what country was the person domiciled at the date of his death? Every
person has one domicile from the date of his birth to the date of his death (s. 6). As soon as a
person is born the domicile of his father attaches to him or her. This is called domicile of
origin (s. 7). But a man can give up his domicile of origin and acquire a new domicile by
taking up his fixed habitation in another country (s. 10). This is called domicile of choice. If,
therefore, any one wants to prove that the deceased had acquired a domicile of choice in a
country other than that of the domicile of origin, the onus of such proof lies on such person
SECTION 6 - One domicile only affects succession to moveables..-A person can have only
one domicile for the purpose of the succession to his moveable property.

Domicile to govern succession to movables.-- It is a well established rule that no person can
be without a domicile; every person must have a domicile. It is equally established that no
person can have simultaneously more than one domicile. It is because law in fixing domicile
of a person connects him with a system of law and if a person is allowed to have more than
one domicile, that purpose will be frustrated. Even when a person is actually homeless, the
law nevertheless attributes a domicile to him. Thus, every person has a legal domicile.

SECTION 7 - Domicile of origin of person of legitimate birth.-The domicile of origin of

every person of legitimate birth is in the country in which at the time of his birth his father
was domiciled; 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.

Citizenship by birth.-- Domicile by birth is distinct from citizenship by birth. By s. 3 of the

Citizenship Act 57 of 1955, it is enacted that except as provided in sub-s (2) of that section
every person born in India on and after 26 January 1950 shall be a citizen of India by birth.
Sub-s (2) excepts children of envoys of foreign powers and children of enemy alien.

Domicile by birth.-- In Udny v. Udny, Lord Westbury said, 'It is a principle that no man
shall be without a domicile and to secure this result law attributes to every child as soon as he
is born the domicile of his father, if the child is legitimate and the domicile of his mother if
illegitimate.' In case of a posthumous child, it is the domicile of the country in which his
father was domiciled at the time of the father's death. In England, it is otherwise; it is the
domicile of the mother at the time of the child's birth. This is called 'domicile by birth' or
'domicile of origin.' It is a creation of law, whereas domicile of choice is created by the party.
It is not in itself i.e. by it is not meant the place of birth of the child for by mere accident a
child may be born on a journey in a foreign country, but the country in which at the time of
the birth of the child his father is domiciled, if the child is legitimate and, if the child is
illegitimate, the country in which at the time of his birth his mother is domiciled. The place
where the child is born is immaterial.
The legitimacy of a child depends upon the law of domicile by birth

SECTION 8. Domicile of origin of illegitimate child.-The domicile of origin of an

illegitimate child is in the country in which, at the time of his birth, his mother was
domiciled.

Domicile of mother.-- No person should be without a domicile and to secure this end the law
attributes to every individual as soon as he is born, the domicile of his father if the child is
legitimate and the domicile of the mother, if the child is illegitimate.

SECTION 9. Continuance of domicile of origin.-The domicile of origin prevails until a

new domicile has been acquired.
Domicile of origin.-- When a domicile of choice is acquired, the domicile of origin remains
in abeyance. It is not absolutely extinguished. When the domicile of choice is abandoned, the
domicile of origin revives. In Att-General v. Yule, Sir Andrew Yule's domicile was held to be
Scottish in spite of the fact that he continuously resided in India.

SECTION 10. Acquisition of new domicile.- 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 [India]
merely by reason of his residing there in 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 [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.
(iii) A, whose domicile of origin is in France, comes to reside in [India] under an
engagement with the Central Government for a certain number of years. It is his intention to
return to France, at the end of that period. He does not acquire a domicile in [India].
(iv) A, whose domicile is in England, goes to reside in [India] for the purpose of winding up
the affairs of a partnership which has been dissolved, and with the intention of returning to
England as soon as that purpose is accomplished. He does not by such residence acquire a
domicile in [India], however long the residence may last.
(v) A, having gone to reside in [India] in the circumstances mentioned in the last preceding
illustration, afterwards alters his intention, and takes up his fixed habitation in [India]. A has
acquired a domicile in [India].
(vi) A, whose domicile is in the French Settlement of Chandernagore, is compelled by
political events to take refuge in Calcutta, and resides in Calcutta for many years in the hope
of such political changes as may enable him to return with safety to Chandernagore. He does
not by such residence acquire a domicile in [India].
(vii) A, having come to Calcutta in the circumstances stated in the last preceding illustration,
continues to reside there after such political changes have occurred as would enable him to
return with safety to Chandernagore, and he intends that his residence in Calcutta shall be
permanent. A has acquired a domicile in [India].

Domicile by choice.-- The presumption of law is always against a change of domicile. A

domicile is acquired by a combination of fact with intention. The fact is residence and the
intention is that the residence should be permanent. A domicile, of choice is the creation of
the party and, when a party creates a new domicile, the domicile of origin remains in
abeyance. It is not extinguished. To constitute such a change of domicile, it must be both
animo et facto. Mere residence in a new place however long is not enough, it must be both
residence and intention, i.e. the residence must be accompanied by an intention of
permanently (the word used in the section is fixed) residing in the new domicile with the
intention of abandoning his domicile of origin. In order to prove the domicile of choice, the
person must prove a fixed and settled purpose of residing permanently or for an indefinite
time in the country where he seeks to acquire new domicile.

If the domicile of choice is abandoned without acquisition of another, the domicile of origin
revives without the need of any further act or intention on the part of the person. The onus
lies on a person who alleges the change of domicile, otherwise the domicile of origin will
prevail (s. 9).

As regards proof of acquisition of domicile of choice, the length of residence is a very strong
ground for inferring, in the absence of express intention, an intention to make a residence a
fixed habitation or permanent home. Residence in a country is prima facie evidence of
domicile, the presumption of domicile in favour of residence becomes stronger with the
length of residence. But mere long residence by itself is not sufficient for acquisition of a
domicile, nor does brief residence negate domicile.

Satya v. Teja Singh . is a case where a person resided at Nevada for 30 days and claimed to
have obtained the domicile of that country and obtained a divorce decree against his wife
who was residing in India. It was held in that case that the husband's intention was only to get
a divorce in another country and had no intention to make that place his permanent home.
The decree of Nevada court was not recognised. Prisoners, however long the term of
imprisonment may be, will not be enough to confer domicile of choice. He retains his
existing domicile.
The difference between a domicile of origin and a domicile of choice could be summarised
thus :
(1) Domicile of origin comes into existence by operation of law and it gets by birth,
where as domicile by choice is acquired by the force volition of the person concerned.
(2) There is a stray presumption of continuance of domicile of origin.
(3) Domicile of origin cannot be abandoned easily as it is a creature of law.
(4) Domicile of origin is never lost, when a domicile of choice is acquired, it only
remains in abeyance.

The 'Explanation' to this section is intended to give effect to that change. A servant in the
civil, military or naval service of the government shall not be deemed to have lost his
domicile of origin by reason of his taking up a fixed habitation for however long a period. He
is put in the same position as any other man and if one alleges a change of domicile, the onus
will lie on him to prove it; and this rule applies to an acquired domicile as well as to domicile
of origin.

SECTION 11. Special mode of acquiring domicile in India.-Any person may acquire a
domicile in [India] by making and depositing in some office in [India], appointed in this
behalf by the State Government, a declaration in writing under his hand of his desire to
acquire such domicile; provided that he has been resident in [India] for one year immediately
preceding the time of his making such declaration.
SECTION 12. Domicile not acquired by residence as representative of foreign
Government, or as part of his family. -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.

Scope.-- Section 11 lays down a special mode for acquiring domicile by making and
depositing in some office in India a declaration to acquire such domicile by a person who
shall have been resident in India for one year immediately preceding the time of his making
such declaration

Scope.-- Residing in a foreign country and the intention to make it his permanent place has
the effect of acquiring a domicile of choice. This section lays down an exception to this rule.
A consul or an ambassador acquires no new domicile in the country in which he resides for
the purpose of his office. His own family or his servant who follows him and resides in the
foreign country also does not acquire a new domicile, the reason being that there is no
intention on the part of such person to make the foreign country his home. But if a man is
already domiciled in a foreign country and is appointed an ambassador or consul in that
country, he does not lose it by accepting the appointment.
Soldier's domicile.-- A soldier does not acquire a domicile in the place where he is stationed
if there is nothing to qualify his residence there

SECTION 13. Continuance of new domicile.-A new domicile continues until the former
domicile has been resumed or another has been acquired.

Continuance of domicile.-- A domicile of choice continues until it is abandoned. It is

divested only when the country of domicile has been actually abandoned with the intention of
abandoning it for ever. According to English law, it is not necessary that another domicile
should be acquired. In such a case, the domicile of origin which was in abeyance
automatically takes effect. But according to this section, the domicile of choice will continue
until the domicile of origin is resumed both animo et facto. According to this section, a
person who acquired a domicile of choice, cannot resume his domicile of origin by merely
abandoning the former but he has got to do something further to resume his domicile of
origin.

SECTION 14. Minor's domicile. -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.

Minor's domicile.-- The domicile of a minor follows that of his parent i.e. of the father if the
minor is legitimate (s. 7) and of the mother if the minor is illegitimate (s. 8). If the father dies
during the minority of his child, the minor's domicile continues to be of the father. This is not
according to English law where if the father dies before the child attains majority, if the child
lives with the mother, his domicile is and changes with hers.
Exception.-- If the minor: (i) is married, or (ii) holds any office or employment in the service
of government, or (iii) has set up, with the consent of the parent, in any distinct business, his
domicile does not follow the domicile of his parent. Ordinarily, a woman on her marriage
acquires the domicile of her husband under s. 15. But if a minor girl is married, the minor
retains the domicile of her parent, if she does not join her husband, even after marriage. In
Mst Allah Bandi v. Government of Union of India, 10. it was held that a minor did not
change domicile by migrating with her parents to Pakistan if the minor was married and the
minor's husband remained in India.

Where the petitioner was born in Malaysia and was minor on 26 January 1950, it would be
domicile of her father that would be relevant for determination of her domicile. When
domicile of origin of her father was India, and he never lost his domicile in India and was a
citizen of India, the petitioner was held to be citizen of India. In Sharafat Ali Khan v. State
of Uttar Pradesh, a similar issue arose. There the petitioner was born in India, but went to
Pakistan with his uncle. His father who was domiciled in India died and to see his mother he
came to India on the basis of a permit issued by the High Commission of India in Pakistan.
On expiry of the period of permit, he was served with a notice to leave India, which was
challenged before the Allahabad High Court. It was contended that during his minority, he
cannot change his domicile and his father being domiciled in India, he is entitled to continue
to reside in India. The plea was accepted. Where a father who was domiciled in India,
abandoned his children and left for Pakistan and became a domicile of that country, the
question whether the abandoned child was to acquire the domicile of Pakistan came up for
consideration in Rashid Hasan Roomi v. Union of India ,It was held that the rule that the
child will acquire the domicile of his father cannot apply in such cases i.e. in the cases of
abandoned child.

In the case of adopted child also the rule is that the adopted child will acquire the domicile of
the adopter.

SECTION 15. Domicile acquired by woman on marriage.-By marriage a woman acquires

the domicile of her husband, if she had not the same domicile before.

SECTION 16. Wife's domicile during marriage.-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.

Married woman's domicile.-- The doctrine that the domicile of the wife is that of her
husband is founded on the duty of the wife to live with her husband. Therefore, it is enacted
by s. 15 that by marriage, a woman acquires the domicile of her husband and s. 16 provides
that during marriage the wife's domicile follows that of her husband.

Exception.-- By the Exception to s. 16 it is enacted that the wife's domicile will not follow
that of her husband:
(i) If they are separated by the sentence of a competent court, i.e. by divorce or by judicial
separation. But if the marriage is void from its inception the wife will not have changed her
domicile by virtue of such void marriage. If, however, the marriage is voidable the wife will
have acquired her husband's domicile until the marriage is declared void.
(ii) If the husband is undergoing a sentence of transportation

SECTION 17. Minor's acquisition of new domicile.-Save as hereinbefore otherwise

provided in this Part, person cannot, during minority, acquire a new domicile.

SECTION 18. Lunatic's acquisition of new domicile. -An insane person cannot acquire a
new domicile in any other way than by his domicile following the domicile of another person.

Lunatic's Domicile.-- An insane person cannot acquire a new domicile in any other way by
his domicile following the domicile of another person, i.e. if the lunatic is a minor, his
domicile follows that of his parent or if a lunatic is a married woman, her domicile follows
that of her husband. If the lunatic is a major, his domicile cannot be changed either by his
own act or by the act of the person having the custody of the lunatic. It remains what it was at
the commencement of his lunacy.

SECTION 19. Succession to moveable property in India in absence of proof of domicile

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

Presumption of Indian domicile.-- In the absence of proof of domicile this section raises a
presumption of Indian domicile.

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

SECTION 24. Kindred or consanguinity.-Kindred or consanguinity is the connection or

relation of persons descended from the same stock or common ancestor.

Relationship flowing from lawful wedlock. --The relationship contemplated by this and the
subsequent sections, is the relationship flowing from lawful wedlock.
The son of one of the two illegitimate daughters of the same parents, is not a nephew of the
other for the purpose of the THE INDIAN SUCCESSION ACT. In Raj Kumar Sharma v.
Rajinder Nath Diwan . it was held that 'lineal descendants' mean descendants born in lawful
wedlock.

Definitions. --The definition of the word 'kindred' or 'consanguinity' is taken from

Blackstone's commentaries.
Consanguinity is of two kinds--(i) lineal (s. 25); and (ii) collateral (s. 26). The expression
'next of kin' also means the same thing. It means the nearest blood-relations of the propositus
in an ascending and descending line. Although a widow is entitled to a share in case of
intestacy of her husband, she is not his next of kin. A mother-in-law, or stepmother is not a
next of kin. To constitute a next of kin there must be blood-relationship.
SECTION 25. Lineal consanguinity. -(1) Lineal consanguinity is that which subsists
between two persons, one of whom is descended in a direct line from the other, as between a
man and his father, grandfather and great-grandfather, and so upwards in the direct ascending
line; or between a man and his son, grandson, great-grandson and so downwards in the direct
descending line.

(2) Every generation constitutes a degree, either ascending or descending.

(3) A person's father is related to him in the first degree, and so likewise is his son; his
grandfather and grandson in the second degree; his great-grandfather and great-grandson in
the third degree, and so on.

Direct descendence. --Lineal consanguinity is that which subsists between persons, of whom
one is descended in a direct line from the other as between the propositus and his father,
grandfather and so upwards in direct ascending line or between propositus and his son,
grandson, great-grandson and downwards in the direct descending line. Where the descent is
by lineal consanguinity or a lineal descent, then the person so descending is called a lineal
descendant. But when the relationship is by collateral consanguinity, one may be descendant
of the other, but he cannot be said to be a lineal descendant. 8. Adoption does not create any
kind of relationship. A Buddhist adopted a girl with a view that she would succeed to her
property. Later, she got converted to Christianity and on her death intestate, the adopted
daughter could not inherit the property under the the Indian Succession Act.

SECTION 26. Collateral consanguinity.-(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.

Classification. --These two sections classify consanguinity--lineal and collateral. Lineal

consanguinity is that between two persons connected in one straight line whether descending
or ascending, drawn from the propositus. Collateral consanguinity is between two persons
connected by a line which is not a straight line. Between them, husband and wife bear neither
lineal consanguinity nor collateral consanguinity.

Mode of calculating degrees. --In case of lineal consanguinity, every generation counts a
degree, ascending or descending. In case of collateral consanguinity, the rule is to count
upwards from the person deceased to the common stock and then downwards to the collateral
relative, reckoning a degree for each person both ascending and descending; or, in other
words, to take the sum of the degrees in both lines to the common ancestor. It must be noted
that in counting the degrees, the propositus is to be excluded, e.g. a man's son or father is
related to him in the first degree, a man's first cousin in the fourth degree (see Sch. I referred
to in s. 28, Table of Consanguinity).

The words in the Indian Succession Act expressing relationship, denote only legitimate
relationship. They cover such relationship as that which originate from a lawful wedlock. A
bastard is 'nulluis filius' in the eye of law and illegitimate children and descendants should,
therefore, be taken out of the scope of the Act.

SECTION 27. Persons held for purpose of succession to be similarly related to deceased.
-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.

Clause (a). --Relations by the father's side and the mother's side are in equal degree of
kindred; and, therefore, equally entitled to succeed.
Clause (b). --This clause abolishes the distinction between full blood and half blood. Under
s. 27(b), the relationship by full blood or half blood has to be a relationship with the
deceased.

Unders. 18 of the Hindu Succession Act, a distinction is made between relation by full blood
and half blood. But under this section, there is no distinction between relation of full blood
and half blood.

Example
A , a widow, has a daughter B by her first husband. A marries again and by her second
husband she has two sons C and D. B dies intestate and unmarried leaving property. The
property will be divided equally between A , C and D .

Clause (c). --According to this clause, children en ventre sa mere , are deemed to be in
existence at the time of his father's death.

SECTION 28. Mode of computing of degrees of kindred. -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 degrees removed.

(iii) A grandson of a cousin-german is in the same degree as the grandson of a great-uncle,

for they are both in the sixth degree of kindred.
First cousin (Cousin-German). --The word cousin or first cousin means primarily children
of uncles and aunts. The propositus and his first cousin are related in the fourth degree,
following the rule of computing from the propositus ascending to his father one degree; then
to the common ancestor, the grandfather, two; then, descending from the grandfather to the
uncle, three; and from the uncle to the child of the uncle, first cousin, four.

Second cousin. --The word second cousin means a person who has the same great
grandfather or great-grandmother and is related to the sixth degree, thus, from the propositus
ascending to his father, one; from his father to his grandfather, two; from his grandfather to
his great-grandfather (the common ancestor), three; then descending from the great-
grandfather to the great-uncle, four; from the great-uncle to the great-uncle's son, five; from
his great-uncle's son to his second cousin, six.

A first cousin twice removed, is in the same degree as a second cousin; for they are both in
the sixth degree of consanguinity (see Sch. I). But a first cousin once removed, takes
precedence over a second cousin.

INTESTATE SUCCESSION
SECTION 29. Application of Part. -(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 [India] in all cases of intestacy.

S.2 (d) - means a native of India who is, or in good faith claims to be, of unmixed Asiatic
descent and who professes any form of the Christian religion;

SECTION 30. As to what property deceased considered to have died intestate. -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 leaving the sum of 2,000 rupees and no other property.
C died before A without having ever had a son. A has died intestate in respect of the
distribution of 1,000 rupees.
Rule of Private International Law.-- Intestate Succession to movable property is to be
distributed according to the law of the domicile of the intestate at the time of his death. This
law determines the class of persons to take, the relative proportions to which the distributees
are entitled, the right of representation, the rights of a surviving spouse and all analogous
questions. In relation to immovable property, the law of situs will apply, no matter where
his/her domicile may have been.

Rules in cases of Intestates other than Parsis

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

SECTION 32. Devolution of such property.-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.

SECTION 33 - Where intestate has left widow and lineal descendants, or widow and
kindred only, or widow and no kindred. -Where the intestate has left a widow--

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

(b) [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.

Share of the widow -

(1) If the husband has left lineal descendants i.e., child, children or remote issue, the
widow's hare is one third and the remaining two third will go to the lineal descendant
of the husband
(2) Subject to the provisions of s.33A, if the husband has left no lineal descendants but
has left father, mother etc., then the widow's share is one half and the remaining one
half will go to the kindred.
(3) But if there are no kindred, the widow gets the whole.

C.L :- Ganga devi v Bijai Singh - If a Hindu marries under the special marriage act 1954 an
dies intestate leaving his widow was married to him under the SMA and a son by a previous
Hindu Wife, the widow is entitled to only one third and the son as the lineal descendant is
entitled to the two third.

If a Hindu becomes a convert to christainity and dies leaving a christian widoe and a Hindu
brother and sister, the distribution will be according to this Act and the widow will take half
and the brother and sister will take half equally. But if a widow hindu marries a hindu girl
and then becomes a christian, whereupon the Hindu wife refuses to live with him and
renounces all claims to his estate, she is not entitled to her share as a widow.1

SECTION 33A. Special provision where intestate has left widow and no

lineal descendants.-(1) Where the intestate has left a widow but no lineal descendants and
the nett value of his property does not exceed five thousand rupees, the whole of his property
shall belong to the widow.

(2) Where the nett value of the property exceeds the sum of five thousand rupees, the widow
shall 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 with the provisions of section 33 as if it were the whole of
such intestate's property.

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

(5) This section shall not apply--

(a) to the property of--

(i) any Indian Christian,

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

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

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

Sub section 4 :- Ascertainment of net value - The property mentioned in this sub section is
both movable and immovable property. It is the gross value of the estate minus the following.
debts left by the instestate, his funeral expenses, administration expenses e.g. payment of
duty and expenses of petition and costs of an administration suit if any and all other lawful
liabilities and charges.

1
Adm-General v Anandachari
Sub section 5a(i) and (ii) - Indian christians and any child or grandchild of any male Indian
christian are excluded from the benefit of this section, even if they died intestate in respect of
all other property.To them, s.33 will apply.

Sub section 5a(iii) - Hindus, Buddhists, sikhs and jainas, succession to whose property under
s.24 of the SMA , 1874 (now s.21 of the SMA 1954) is regulated by the provisions of this
section are also excluded from the benefit of this section, and therefore the widow of such a
person dying intestate is excluded from the benefit of this section.

SECTION 34. Where intestate has left no widow, and where he has left no kindred. -
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.

The government will take the whole only if there is no widow, no lineal descendant and no
kindred. When the state takes the property, it does so subject to the liabilities of the deceased.
The onus of proof in escheat lies on the government.

SECTION 35. Rights of widower. -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.

Rights of widower - Under the wording of this section , if the husband survives his wife he
gets the same share in her property as laid down in ss.33 and 33A i.e,

(1) If there are lineal descendants, he gets one third and the remaining two third to the
lineal descendants
(2) If there are no lineal descendants but kindred his share is one half and the remaining
one half will go to the kindred.
(3) If there are no kindred, he takes the whole
(4) If the net value of wife's estate does not exceed Rs 5000 and if the wife dies intestate
leaving no lineal descendants, then also the husband will get the whole property.
(5) If the net value of wife's estate exceeds Rs 5000, the share of the husband will be in
terms of s.33A(3).

JUDICIAL SEPARATION - If an order under the Indian Divorce Act 1869 is passes for
judicial separation, whilst the separation continues, the wife is from the date of the order,
considered to be an unmarried woman with respect to her property and in case she dies
intestate her property becomes distributable as if her husband had been then dead.

Distribution where there are lineal descendants

SECTION 36. Rules of distribution. -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.
Distribution of property - The rules for the distribution of the intestate's property are laid
down in s.37 to 40 when there are lineal descendants and in s.41 to 48, then there are no
lineal descendants but kindred, and the order of distribution is as follows :-

(1) To deduct first the share of the husband or wife as the case may be
(2) If there are lineal descendants, to distribute the residue ( or the whole if there is no
husband or wife) amongst the lineal descendants in the shares and proportions laid
down in s.37 to 40
(3) If there are no lineal descendants, then only to distribute the residue ( or the whole if
there is no husband or wife) amongst the kindred of the intestate in the shares and
proportions laid down in s.42 to 48.

SECTION 37. Where intestate has left child or children only. -Where the intestate has left
surviving him a child or children, but no more remote lineal descendant through a deceased
child, the property shall belong to his surviving child, if there is only one, or shall be equally
divided among all his surviving children.

Share of children - Where the instestate has left a widoe or husband and child, the widow or
rhe husband gets one third and the child gets two thirds. If there is no widow or husband, the
child gets whole. If there are more than one child, i., sons and daughters only , i.e., lineal
descendants of the first degree, they take equally whether male or female. A posthumous
child has the same right as if it was actually born at the date of the intestate , see Illustration
iv of s.40. The shares inherited by the heirs including females, are always absolute and freely
alienable.

Illegitimate child - The word 'child use in this section does not include illegitmate child. In
Jane Antony V M.Siyath - see notes.

SECTION 38. Where intestate has left no child, but grandchild or grandchildren. -
Where the intestate has not left surviving him any child but has left a grandchild or
grandchildren and no more remote descendant through a deceased grandchild, the property
shall belong to his surviving grandchild if there is one, or shall be equally divided among all
his surviving grandchildren.

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 grandchildren and no descendant of any deceased grandchild. Each of his
grandchildren will have one-ninth.

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

When there are grandsons and granddaughters only, i.e. all lineal descendants of the second
degree, they take equally.
SECTION 39. Where intestate has left only great-grandchildren or remoter lineal
descendants. -In like manner the property shall go to the surviving lineal descendants who
are nearest in degree to the intestate, where they are all in the degree of great-grandchildren
to him, or are all in a more remote degree.

When there are great grand children or other remote lineal descendants all in the same degree
only, they share equally, both males and females.

SECTION 40. Where intestate leaves lineal descendants not all in same degree of
kindred to him, and those through whom the more remote are descended are dead. -(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 more remote lineal descendants, as the case may be; such surviving child or
children or more remote lineal descendants always taking the share which his or their parent
or parents would have been entitled to respectively if such parent or parents had survived the
intestate.

Illustrations

(i) A had three children, John, Mary and Henry; John died, leaving four children, and Mary
died, leaving one, and Henry alone survived the father. On the death of A, intestate, one-third
is allotted to Henry, one-third to John's four children, and the remaining third to Mary's one
child.

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

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

(iv) A has two children, and no more, John and Mary. John dies before his father, leaving his
wife pregnant. Then A dies leaving Mary surviving him, and in due time a child of John is
born. A's property is to be equally divided between Mary and the posthumous child.
 Distribution where there are no lineal descendants
SECTION 41. Rules of distribution where intestate has left no lineal descendants. -
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.

Rules of distribution - Sections 42 to 48 lay down the rules of distribution of the property of
an intestate, where the intestate had died without leaving children or remoter lineal
descendants and the rules of distribution are as under in order of priority

1. Widow 1/2 Father 1/2 s.42

2. Widow 1/2 Mothers brothers and s.43
sisters 1/2 equally
3. Widow 1/2 Mothers, brothers, s/44
sisters and children
of any deceased
brother or sister 1/2
equally per stripes
4. Widow 1/2 Mother and children s.45
of brothers and
sisters 1/2 equally
per stripes.
5. Widow 1/2 Mother 1/2 s.46
6. Widow 1/2 Brothers and sisters s.47
and children of
predeceased brothers
and sisters 1/2
equally per stripes
7. Widow 1/2 Remote kindred 1/2 ( s.48
in the nearest degree)

SECTION 42. Where intestate's father living.-If the intestate's father is living, he shall
succeed to the property.

Father's share -

(1) One half when the intestate leaves a widow

(2) Whole when the intestate has left no widow

If the intestate parents both father and mother are living, they shall succeed the property
equally.

SECTION 43. Where intestate's father dead, but his mother, brothers and sisters
living.-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.

Mothers share - The share of mother is ascertained as follows

1. Widow half share is to be deducted first, if there is a widow of the intestate.

2. The other half is then divided amongst the mother and brother and sisters per capita
equally, when there are brothers and sisters only.
3. The brothers and sisters of the intestate whether full blood or half blood are equally
entitled (see illustration)
4. If there are no brothers or sisters or the children of brothers or sisters, the mother
takes the whole (s.46).

Note - A grandfather and a grandmother of the intestate, although they are in the second
degree of kindred like the brothers and sisters, are excluded from the distribution, so long as
the brothers and sisters are the shares.

Step mother - A step mother is not a kindred of the intestate and the word mother does not
include a step mother.

Examples

Widow 1/2 One brother 1/4 Two children of a Grandfather takes

deceased sister 1/4 nothing
equally
Widow 1/2 Brothers grandson Grandfather 1/2
takes nothing,
grandfather is of
nearer degree

SECTION 44. Where intestate's father dead and his mother, a brother or sister, and
children of any deceased brother or sister, living. -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, the child of Mary takes one-fifth, and the two children of George divide
the remaining one-fifth equally between them.

SECTION 45. Where intestate's father dead and his mother and children of any
deceased brother or sister living. -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
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 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

Scope of section - If there are no lineal descendants, nor father nor brothers nor sisters but
mother and children of brother and sisters (whether full or half blood), the division is equal,
i.e., one share goes to mother and one share to each brother and sister who have predeceased
the intestate leaving a child or children him on her surviving.

Example

Mother 1/3 Brother's son 1/3 Sister's son 1/3 Grandfather (takes
nothing)
.

SECTION 46. Where intestate's father dead, but his mother living and no brother,
sister, nephew or niece. -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.

Share of mother - If there are neither lineal descendants, nor father, nor brother, nor sisters,
nor children of brothers or sisters of the intestate, then , subject to the right of the widoe, if
any, the mother takes the whole.

Examples

Widow 1/2 Brothers grandson, Mother 1/2

(takes nothing, the
represntation is not
carried beyond
brothers son and
sisters children
Mother , whole Grandfather,
grandmother (takes
 nothing)

SECTION 47. Where intestate has left neither lineal descendant, nor father, nor
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.

SECTION 48. Where intestate has left neither lineal descendant, nor parent, nor
brother, nor sister.-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.

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

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

Distribution of property in absence of lineal descendants etc - The represenation is to be

carried upto the brothers and sisters and not beyond. If there are neither lineal descendants,
not parent, nor brother , nor sister, them , subject to the right of the widow, the estate goes to
the next of kin who are in the nearest degree of kindred. The degree is ascertained by
computing up from the intestate to the common ancestor and then down to the claimnat, all
the nect of kin equal degree sharing inter se. It should also be noted, that although, when
there are brothers or sisters of the intestate and the children of any deceased brother or sister,
such childrren take per stripes and not per capita, still when there are no brothers or sisters
but only children of brothers or sisters, such children take per capita and not per stripes see
illustration iv.

Examples
Widow 1/2 Grandfather 1/4 Grandmother 1/4 Uncle takes nothing
being of third degree
Great grandfather 1/3 Uncle 1/3 Nephew 1/3 All are of the third
degree
Widow 1/2 Great grandfather 1/4 Uncle 1/4

SECTION 49. Children's advancements not brought into hotchpot. -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.

Advancement - Section 49 is a complete repeal of the english doctrine of advancement.

Accoridng to the english statute of distribution, in case of intestacy, if a child has received
payments by way of advances, he must bring that amount into hotchpot before he can get his
distinctive share in the estate. Here, by this ection, a child is not required to do so; he can
retain the benefits as well as claim a share in the estate.

This section does not apply to Indian christians.

SECTION 57. Application of certain provisions of Part to a class of wills made by

Hindus, etc. -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;

(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 those provisions are not applied by clauses (a) and (b):]

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

SECTION 58. General application of Part. -(1) The provisions of this Part shall not apply
to testamentary succession to the property of any Muhammadan nor, 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 [India] applicable to all cases of
testamentary succession.
Sub section 1 :- This section is in part a reproduction of sections 331 and 332 of the Act 10
of 1865 and excludes the application of this part VI of the Act to the following wills :-

1. Wills of Muhammadans. A Muhammadans can make a will in any form. It may be

oral or written. If it is in writing, it need not be attested. 2A will of a muhammadan
also does not require to be attested not probate thereof is necessary.3. Muslim law
does not prohibit a will by Muslim in favour of non-muslim. He may appoint even a
person of any other religion as his executor.
2. All wills executed before 1 january 1866
3. All wills of Hindus etc., except as provided by s.57 of the Act.

Sub section 2 :- Except as aforesaid Part VI constitutes the law of testamentary succession
applicable to all the wills in India expect any other law for time being in force.

2
Aulia Bibi v Alauddin 1906
3
Shaikh moosa v Shaikh Essa
WILLS AND CODICILS

59. Person capable of making wills. -Every person of sound mind not being a minor may
dispose of his property by will.

Sound Testamentary capacity means that these conditions must exist at one and same time :-

1. The testator must understand that he is giving his property to one or more objects of
his regard.
2. He must understand and recollect this extent of this property and
3. He must also understand the nature and extent of claims upon him both of those
whom he is including in his will and those whom he is excluding from the will.

Physical and mental fitness are very important factors which influence the rationality of the
will making.

Section 12 of the ICA, 1972 says that a person is said to be of sound mind, if at the time he
makes a contract, he is capable of understanding it and of forming a rational judgement as to
its effect.

The question of sound and disposing mind is a question of fact and of degree of mental
capacity in each case.

Perera v Perera - If a testator, while in a state of health, gives instructions for a will to a
solicitor and it is prepared in accordance with those instructions, a very slight mental capacity
for execution of the will would be sufficient.

The burden of establishing the testamentary capacity of the testator is on the propounder to
prove that the testatrix was of sound mind at the date of execution and that she knew and
proves the contents thereof. Where the question is as to the insanity of the testatrix, and that
is well founded, the burden of proving insanity at the date of execution of the will is shifted
to the person impeaching the will - Nabagopal v Sarala, 1933

A minor is incapable of disposing of his property by will. A minor is a person who has not
completed the age of 18 years and is not capable of making wills. The Indian majority act of
1875 applies to all persons including Hindus and Muslims so far as the competency to make a
will is concerned.

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.

One who is deaf and dumb from birth is presumed to be an idiot and, therefore, incapable of
making a will, but the presumption may be rebutted by producing evidence of lucid intervals.
This explanation makes it clear that such a person can make a will if he is able to know what
he does by it. Mere blindness will not incapacitate a person from making a will, provided he
is able to know what he does. It will, therefore, be sufficient if there is satisfactory proof of
the knowledge and approval of the will by the blind man.

Explanation 3.--A person who is ordinarily insane may make a will during interval in which
he is of sound mind.

If the insanity of the testator before the date of the will is once established, the burden of
proof that it was made during a lucid interval lies on the person propounding the will. If ,
however, it is not established, or habitual insanity does not exist, the burden of proving actual
insanity at the date of the execution of the will shifts to the person impeaching the will -
Ganpatrao v Vasantrao

C.L :- Palani Velayutham Pillai v Ramachandran :- Parties cannot blow hot and cold at
same time.

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.

Intoxication - A will made by a person when he is so excessively drunk that he is utterly

deprived of the use of reason and understanding is null and void. It is called delirum tremens.
But a person who is habitually addicted to drink is not insane or deranged, may make a will.

Illness - Illness which impairs the mind of a person in such a manner as to deprive him of the
power of understanding the nature of the instrument or the effect of its provision will
invalidate the will.

Illustration II of the section - A executes an instrument purporting to be his will, but he does
not understand the nature of the instrument, nor the effect of its provisions. This instrument is
not a valid will.

Other cause - C.L :- Woolmer v Daly, the will of a testator who was suffering from
paralysis was held to be good as the paralytic stroke had not affected his mental capacity to
such an extent that he was unable to understand and will of a simple nature

When Instructions to will are given - Depending upon the facts, the validity is determined.
If instructions are given in sound mind & its carried out in faithful manner, even if the
testator doesn’t understand what he is doing after, it will be considered as a valid will.

Batton Singh V Amirchand - It was held that the will was invalid. It was observed. 'A
testator may have a clear apprehension of the meaning of draft will submitted to him and may
approve of it, and yet, if he was at the time through infirmity or disease so deficient in
memory that he was oblivious of the claims of his relatives and if that forgetfulness was an
inducing cause of his choosing strangers to be his legatees, the will is invalid.

SECTION 60. Testamentary guardian. -A father, whatever his age may be, may by will
appoint a guardian or guardians for his child during minority.
SECTION 61. Will obtained by fraud, coercion or importunity. -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.

FRAUD - The word fraud as been defined in s.17 of the Indian Contract Act, 1872. Fraud is
either actual or constructive.

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

Actual fraud is sub divided into two parts :

1. Misrepresentation - Illustration 1 of the section 61 - 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.
Misrepresentation is suggestio falsi
2. Concealment - Suggestio veri

Constructive fraud - It is of various kinds but for the purpose of invalidating a will, if the
will is made by a testator at the instance of another who has abused some fiduciary relation, it
will be declared null and void. Cases of importunity and undue influence come under this
group.

COERCION - Coercion is defined by s.15 of the Indian Contract Act, 1872 as ' the
committing or threatening to commit, any act forbidden by the Indian penal code or the
unlawful detaining or threatening to detain, any property to the prejudice of any person
whatever, with the intention of causing any person to enter into agreement. Whatever
destroys the free agency of the testator, constitutes corecion.

Illustration - A threatens to shoot B, or to burn his house or to cause him to be arrested on a

criminal charge, unless he makes a bequest in favour of C. B, in consequence, makes a
bequest in favour of C. The bequest is void, the making of it having been caused by coercion.

IMPORTUNITY OR UNDUE INFLUENCE - Undue Influence is defined under s.16 of

the ICA, Undue influence’ defined.—(1) A contract is said to be induced by ‘undue
influence’ where the relations subsisting between the parties are such that one of the parties is
in a position to dominate the will of the other and uses that position to obtain an unfair
advantage over the other."

Illustration for Undue influence - A, being of sufficient intellect, if undisturbed by the

influence of others, to make a will yet being so much under the control of B that he is not a
free agent, makes a will, dictated by B. It appears that he would not have executed the will
but for fear of B. The will is invalid.
Illustration to Importunity - A, being in so feeble a state of health as to be unable to resist
importunity, is pressed by B to make a will of a certain purport and does so merely to
purchase peace and in submission to B. The will is invalid.

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

MISTAKE - There is no provision under this section or any other section of the Act for a
will made under a mistake. But under English law, a will executed by mistake is void - C.L :-
Re fanny Deborah v meyer.

SECTION 62. Will may be revoked or altered. -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.

A will is a revocable instrument as distinguished from a deed. A will of a living man does not
come into operation when it is executed but only upon his death. A will is in its nature
ambulatory during the makers lifetime and is therefore always revocable so long as the
testator is living. The only instance in which a will cannot be revoked is in the case of mutual
or joint wills which become irrevocable after the death of one of the makers.

UNPRIVILEGED WILLS
SECTION 63. Execution of unprivileged wills.-Every testator, not being a soldier
employed in an expedition or engaged in actual warfare, [or an airman so employed or
engaged,] or a mariner at sea, 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.

It must be dated. If the will is not dated, proof of the day on which the will was executed is to
be given at the time when petition for probate is file. When the testator himself signs the will,
it shall bear his signature or if the testator is illiterate, his mark. In Nirmal Chunder v
Saratmoni , a rubber stamp was held to be good. But the mark must be made by the testator
and not by some other person for the testator. If the testator intentionally or unintentionally
signs under a wrong or assumed name, still if he signs animus testandi, it is sufficient. Under
the General clauses act, 10 of 1897, the word, 'sign' with reference to a person who is unable
to write his name includes 'mark.

C.L :- Leela Karwal Vs JD Karwal - a testator under his will bequeathed his house to his
second wife. The testator died leaving two sons and daughters from his first wife. When the
letter of administration was sought for by the second wife, the same was objected by the
children of first wife. The will was in the handwriting of the deceased and it bore no date. It
did not bear any signature. It only had in the beginning with a sentence, ' I Guru Datt Karwal
s/o Shri Dv Chand Retd Professor'. A contention was made that the writing in the first page tp
be construed as his signature. It was held that the will is invalid not contemplating under s.63
(a) of the Indian Succession Act.

(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.

According to this clause, the signature or mark of the testator or the signature of the person
signing for him may be placed anywhere on the will, i.e., either at the commencement or at
the end, but it must be so placed that it shall appear that it was intended to give effect to the
instrument as a will. In england, the law is different. The wills Act 1837, s.9 enacted that no
will was valid unless it was signed ;at the foot or end thereof'.

When there is absence of signature to the testator to the appendix, it is held invalid.

C.L :- Amarendra nath v Kasi nath, the signature was at the commencement and it was
held to be good.

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

Attestation shall be at least be by two persons - The will shall be attested by two or more
witnesses. It is a mandate of law and it must be proved as such,

1. each witness must have seen the testator sign or affix his mark or
2. each witness must have seen some other person sign the will in the presence of and by
the direction of the testator, or
3. if the will is already signed, each witness must have received from the testator a
personal acknowledgement of his signature or mark or of the signature of such person
signing for him.

The attestation must be animus testandi. It is not necessary that the attesting witnesses should
know the contents of the will. The testator need not disclose the nature or contents of the
instrument.

Scribe - A person who writes the will and reads and explain it to the testator and makes a
note to that effect on the will and signs it cannot be deemed to be an attesting witness. A
scribe may, however, perform a dual role, he may be an attesting witness as well as a scribe.
When a person had put his signature on the document both as scriber and as attesting witness,
the inference is that he functions both as scribe and attesting in them - Palani velayutham v
Ramachandran.
ACKNOWLEDGEMENT OF TESTATOR - When the testator does not execute the will
in the presence of the attesting witnesses but the attesting witnesses put their signatures on
the personal acknowledgement of the execution of the will by the testator, it constitutes
sufficient acknowledgement. It is not necessary that the attesting witness should see the
testator signing the will. A personal acknowledgement may include words or conduct or
both, on the part of the testator which may be construed unequivocally as an
acknowledgement.

C.L :- Amarendra Nath v Kashi Nath , It would be sufficient, if the testator produced a
paper and makes his witnesses understand that it is will, even though the witnesses do not see
him sign it or observe his signature, provided the court is satisfied that the testator's signature
was there, when the witnessess attested it.

Unprivileged will - its execution and attestation - This section deals with the execution of
unprivileged will and is taken from s.9 of the English Wills Act, 1938 with slight departure.
Under the English Act, each witness is required to attest the will in the presence of each
other, but under clause (c), it is not necessary that both the witnesses should be present at the
same time.

SECTIONS 64. Incorporation of papers by reference. -If a testator, in a will or codicil

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

Before a document can be incorporated, the following conditions must be complied with :-

1. The document must be of a testamentary nature

2. The document must be in existence at the date of the will or codicil in which it is
referred to and describe d as existing. A paper not in existence at the date of the
execution of the testamentary instrument cannot be incorporated in it or referred to for
purposes of construction.
3. The document must be clearly identified with the description of it given in the will
4. The intention to incorporate must be clear.

PRIVILEGED WILLS
Section 65. Privileged wills. -Any soldier being employed in an expedition or engaged in
actual warfare, [or an airman so employed or engaged,] or any mariner being at sea, may, if
he has completed the age of eighteen years, dispose of his property by a will made in the
manner provided in section 66. Such wills are called privileged wills.

Illustration

(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 Will.
(iv) A, a mariner of a ship, in the course of a voyage, is temporarily on shore while she is
lying in harbour. He is, for the purposes of this section, a mariner at sea, and can make a
privileged Will.
(v) A, an admiral who commands a naval force, but who lives on shore, and only
occasionally goes on board his ship, is not considered as at sea, and cannot make a privileged
Will.
(vi) A, a mariner serving on a military expedition, but not being at sea, is considered as a
soldier, and can make a privileged Will.

This section does not apply to Hindus -This section is based on s.2 of the English wills Act,
1837. Section 65 of the Act relates to execution of privileged wills or oral wills. Section 65
has not been included in schedule III and in view of s.57 of the Act, the same is therefore not
applicable to Hindus.

Being in actual service - The words therein used are 'being in actual military service'. In Re
Wingham, where it was held that if a member of a military force is sent for training he was
not in actual military service within the meaning of this expression. Actual military service is
the equivalent of the latin term 'in expenitone'. Not every soldier in times of war, even
though literally on active service, is entitled to make a privileged will. It is only when he is
employed in an expedition or engaged in actual warfare that the privileges can be availed of.
The words actual warfare means 'actual military service' i.e, on an expedition.

C.L :- In Re Jones, a corporal of the parachute regiment, serving in Northern Ireland, was
shot while on patrol. The court held that acting in aid of the civil powers in putting down
insurgency was equivalent to be regarded as in actual military service and that the corporal
was entitled to privilege.

To prove of the privileged will, an affidavit is required to be produced declaring the time of
making the will & was in actual expedition . In absence of 2 disinterested persons who say
that it was signed by the testator.

SECTION 66. Mode of making, and rules for executing, privileged Wills.—

(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 on the face of the instrument that the execution of it in the manner
intended by the testator was not completed, the instrument shall not, by reason of that
circumstance, be invalid, provided that his non-execution of it can be reasonably
ascribed to some cause other than the abandonment of the testamentary intentions
expressed in the instrument.
e) If the soldier, 1[airman] or mariner has written instructions for the preparation of his
Will, but has died before it could be prepared and executed such instructions shall be
considered to constitute his Will.
f) If the soldier, 1[airman] or mariner has, in the presence of two witnesses, given verbal
instructions for the preparation of his Will, and they have been reduced into writing in
his lifetime, but he has died before the instrument could be prepared and executed,
such instructions shall be considered to constitute his Will, although they may not
have been reduced into writing in his presence, nor read over to him.
g) The soldier, 1[airman] or mariner may make a Will by word of mouth by declaring his
intentions before two witnesses present at the same time.
h) A Will made by word of mouth shall be null at the expiration of one month after the
testator, being still alive, has ceased to be entitled to make a privileged Will.

Execution of Privileged Wills - A privileged will may be either verbal or written.

Verbal Will - If it is a verbal will, it must be declared before the witnesses present at thee
same time. Where a person propounds an oral will, he has to prove the same beyond any
shadow of doubt by cogent and convincing evidence.
A verbal will shall be null and void at the expiration of one month after the soldier, airman or
mariner shall have ceased to be entitled to make a privileged will.

Written Will - If the will is in writing, the following rules apply -

Written by whom Signature of testator Attestation
Rule 1 By the testator Not neccessary Not necesary
wholly
Rule 2 By another person, Necessary Note - If it is not
wholly or in part signed by the testator
it will be necessary to
show that it was
written by the
testator's direction r
that he recognised it
as his will

Rule 3 - If the soldier, airman, or mariner leaves written instructions to prepare his will but
dies before the will is prepared and executed, such instructions shall constitute his will.
Rule 4 - If the soldier, airman or mariner gives verbal instructions to prepare his will in the
presence of two witnessess and the instructions are reduced to writing in his life time but he
dies before the will is prepared and executed, such instructions shall constitute his will,
although the instructions may not have been reduced into writing in his presence nor read
over to him.
Duration of privileged will - Under the English statute, the privileged will remains operative
unless expressly revoked, although the maker of the will dies long after he has ceased to be
entitled to make a privileged will. Under clause (h) of this section, an oral will becomes null
and void at the expiration of one month after the testator has ceased to be entitle to make a
privileged will.

SECTION 67. Effect of gift to attesting witness. -A will shall not be deemed to be
insufficiently attested by reason of any benefit thereby given either by way of bequest or by
way of appointment to any person attesting it, or to his or her wife or husband; but the
bequest or appointment shall be void so far as concerns the person so attesting, or the wife or
husband of such person, or any person claiming under either of them.

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

SECTION 68. Witness not disqualified by interest or by being executor. -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.

This section is based on s.17 of the English Wills Act, 1837. This is corollary to the last
section. An executor appointed by the will is a competent attesting witness and there is no
objection to his proving the will and acting as an executor. He, however, will lose any benefit
given to him under the will, although, such a benefit will be in the shape of salary or
remuneration for his trouble for managing the estate. An executor by tenor, also stands on the
same footing.

REVOCATION OF WILLS
SECTION 69. Revocation of will by testator's marriage. -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.

Revocation by operation of law :- This section is based on s.18 of the English Wills Act.
By Section 62, a will is liable to be revoked at any time by its maker. This section 69 lays
down that if a maker, whether man or woman, of a will marries after making the will, the will
is revoked. This is revocation by operation of law. The principle upon which a will is revoked
by marriage is that marriage creates such a change in the testator's condition with new
obligations and duties, they raise an inference that the testator would not adhere to will made
before the marriage.
A will is revoked by marriage or re-marriage of the testator or testatrix. Every will, whether
unprivileged or privileged, is revoked by marriage of the maker.
EXCEPTIONS :-
(a) Property bequeathed by the executor who is empowered to do so.
(b) When two persons make mutual wills, the marriage of one of them does not revoke
the will of the other.
(c) As s.69 does not apply to hindus, a will made by a hindu is not revoked by his
marriage.
(d) The will of muslim is not revoked by his marriage
(e) There is no revocation where the marriage is void.

Section 70 - Revocation of unprivileged will or codicil. -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.

ILLUSTRATION
(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.

This section corresponds to s.20 of the English Wills Act, 1837.

Scope - Section 70 provides that 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
declaration an intention to revoke the same.

Revocation of unprivileged Will - by two parts

(a) by a operation of law as provided in s.69
(b) by acts of parties (i.e., by another will or codicil, or by some other writing, or by
burning, tearing or otherwise destroying). The modes of revocation as prescribed in
this section are exhaustive.
A mere intention to revoke is no revocation of the will already made. For effective
revocation, one of the requirements of this section must be compiled with.

MODES OF REVOCATION - REVOCATION BY ACT OF PARTIES

By Another Will or Codicil

 It follows from the ambulatory nature of the will that the last testament shall be
operative to the exclusion of previous contrary or inconsistent ones.
  But the intention to revoke a former will must be clear e.g., when the later instrument
contains words of express revocation. A general revocatory clause revoking all former
wills and codicils is usual in all well drafted wills.
 Where the later instrument contains no words of express revocation but the
dispositions made in the later instrument are of such a character as cannot stand with
the first, it can be inferred that the testator intended to revoke the first. It was held in
Sahib Mirza v Umda Khanam case that a will, duly executed, cannot be treated as
revoked either wholly or partly by a will which is not forthcoming, unless it is proved
that the two cannot stand together. It is not enough to show that the later will differe
from the earlier, but it is necessary to show that the difference are irreconcilable.
 An invalid will cannot revoke the earlier valid will.
 Although the maxim is that no man can die with two testaments, the mere fact of
making a subsequent will does not necessarily revoke the former ones unless the
subsequent will expressly or in effect, revokes all former wills or the two are
inconsistent and incapable of standing together - Lemage v Goodban
 C.L :- Campbell v French, a testator gave legacies to the grandchildren of his
children and , afterwards by a codicil, revoke the legacies, giving as a reason, that the
legatees were dead. It was proved that the legatees were not dead. It was held that the
legacies were not revoked as the cause of revocation was false.

By some writing - Revocation may be in writing declaring an intention to revoke, and

executed in the manner in which an unprivileged will is required to be executed, i.e., the
writing must be signed by the testator and attested by two witnesses.

By burning or tearing - The will may be burnt or torn by the testator or by some person in
his presence and by his direction , with the intention of revoking the same. To constitute
'burning', it is not necessary that the instrument should be consumed; but there must be actual
burning of the will to some extent as to destroy the entirety of the will. Thus, if the testator
obliterates his own signature or that of the attesting witnesses with the intention of revoking
the will or strikes off his signature, that would amount to a complete revocation. The word
'tearing' does not mean tearing to pieces , the slightest act of tearing with intent to revoke is
sufficient. Obliterating and tearing off the names of the attesting witness is sufficient to
revoke the will. There must, in all cases, be the animus revocandi and the act of burning or
tearing must be completed.

Otherwise destroying - The words 'otherwise destroying' denote modes of destruction

ejusdem generis with those described as 'burning', 'tearing', etc. Cancellation of will is not
one of the modes of revocation. The excision of the name of a testator from his will has been
held to amount to 'otherwise destroying' the will.

Revocation of codicil - A codicil means an instrument in relation to a will and forms a part of
the will as per definition in s.2. Under the provisions of this section, it is now settled that a
codicil is not deemed to be revoked merely by implication of revocation of the will, but the
codicil will remain effectual unless it is shown that the testator, while intending to revoke the
will, also intended to revoke the codicil as well.

Effect of revocation - If a prior will is revoked by a subsequent will or codicil. the prior will
has no operation whatever.

Onus to Prove Revocation - The onus to prove that the will was revoked by the testator lies
on the person alleging revocation.

SECTION 71. Effect of obliteration, interlineation or alteration in unprivileged

will. -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.

Of alterations, interlineations and obliteration in a will - If a will contains any alterations,

interlineation or obliteration made after the will is executed, the same shall not have any
effect except so far as the words or meaning of the will shall have been thereby rendered
illegible or undiscernible. Under the English Wills Act 1837, the expression used is 'except so
far the words or effect of the will before such alterations shall not be apparent' which
meaning becomes apparent on inspection of the instrument and not apparent by extrinsic
evidence. The alterations, interlineations or obliterations will only be given effect to in the
following cases :-
1. If the signature of the testator and of the attesting witnesses is made in the margin
or on some part of the will opposite or near to such alterations; or
2. if a memorandum is signed by the testator and by the attesting witnesses at the end
or some other part of the will referring to such alterations.
If these requisites are not complied with, probate will be issued omitting the alterations. This
section speaks of alterations, etc. made after the execution of the will and not before.

Examples - A by his will bequeaths Rs 1000 to B. A cancels Rs 1000 and writes over it Rs
500. The cancellation is not signed by A or attested. The alteration is void and the original
bequest remains, i.e., B takes Rs 1000 - Re goods of Beaven
A makes certain alterations in the body of his will. Such alteraions are not signed.
A afterwards executes a codicil in which he confirms the alterations made in the will. The
alterations will be given effect to - Tyler v Merchant Taylor
SECTION 72. Revocation of privileged will or codicil. -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.

This section lays down the modes for the revocation of a privileged will by acts of the parties
1. By an unprivileged will or codicil.
2. By any act expressing an intention to revoke, accompanied by such formalities as
would be sufficient to give validity to a privileged will
3. By burning, tearing or destroying the will by the testator or by some person in his
presence and by his direction with the intention to revoke it.
Explanation :-With regard to the situation of the testator at the time of revocation, he can
revoke his will while he is employed in an expedition or while he is not on actual military
service.

SECTION 73. Revival of unprivileged 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 herein before required, and showing
an intention to revive the same.
(2) When any will or codicil, which has been partly revoked and afterwards wholly revoked,
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.

Of the revival of unprivileged will or codicil - The only modes in which a revoked will or
codicil can be revived are :-
1. By Execution i.e., by its being signed again by the testator and attested by two
witnesses. This is called republication. The re-execution must be with the requisite
formalities. Where the testator cuts off his signature and those of the attesting
witnesses, but gums the signature again on the same place the will is not revived -
Bell v Fothergill.
2. By a codicil duly executed showing an intention to revive the will. This is called
revival. The codicil must show an intention to revive the will by express words
referring to the will. A will cannot be revived by mere implication. The will must be
in existence. A will which has been destroyed cannot be revived. As the revocation by
destruction of a revoking will fails to revive the first will, there is prima facie an
intestacy, but evidence can be given that the second will was revoked solely with the
intention of validating the earlier will, the revocation of the second will is then treated
 as conditional and, the condition not have been fulfilled, the doctrine of dependent
relative revocation applies, and the second will is not revoked. The testator's intention
must be expressed and must appear on the face of the codicil. If the will is first partly
revoked and then wholly revoked and then revived, the revival will operate only on
the portion last revoked unless there appears that the whole will is intended to be
revived.
The distinction between republication and revival is that the revival restores a revoked will or
codicil, while republication merely confirms an unrevoked testamentary instrument so as to
make it operate as if it were executed on the date of republication.

C.L :- In Re Baker, Baker v Baker, the testator executed a will and a codicil in 1893. In 1907,
he made another will whereby he revoked the will and a codicil, of 1893. In 1911, he made a
codicil to the will of 1907. In 1921, the testator made a third codicil which referred only to
the will and codicil of 1893. It was held that the effect of the codicil of 1921, was to revoke
the will of 1907 and the codicil of 1911 and to revive the will and codicil of 1893.

If a testator burns or destroys a will and afterwards executes a codicil which refers to the will
with the intention of reviving it, the codicil cannot effect the revival, though there may be
draft of such a will.

Consequence of revival or republication :- The republication of a will is a tantamount to

the making of that will de novo. In other words, the will so republished is a new will as on the
date of republication.

Evidence of intention to revive will or codicil - The expression 'unless an intention to the
contrary shall be shown by the will or codicil' seems to imply that parol evidence will not be
admissible to prove such intention to revoke.

CONSTRUCTION OF WILLS
SECTION 74. Wording of will.—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.

Technical Words - This chapter 74 - 111 containing the rules for construction of will and
the lapse of legacies. In a court of construction, the only legitimate evidence of the testator's
intention is the will itself, properly authenticated, and any codicil to it. For the purpose of
construing a codicil, the court may look into the original will. The court may look at a recital
of a will contained in a codicil and may construe the will by reference to this recital, unless it
is obviously erroneous. In order that a will is properly expounded, the court adopts the
general rule that any evidence of the circumstances is admissible which in its nature and
effect explains what the testator has written but in general, no evidence may be admitted
which in its nature or effect is applicable to the purpose of showing merely what he had
intended to have written. Extrinsic evidence may be resorted to for the purpose of proving a
fact which makes intelligible something in the will, which, without the aid of such evidence,
would not be so intelligible.
These general rules, being rules of evidene, apply to the construction of wills governed by
any law of any country and not merely english wills.
 This section lays down that no technical words or terms of art are required to be used
in making the will. But if technical words are used by the testator, he will be
presumed to use them in their legal sense unless the context indicates a clear contrary
intention.
 In construing a will executed by a person without requisite knowledge of law or skill
in drafting, the court should not adopt standards which would be appropriate to a will
drafted by an expert.
 The want of technical words are immaterial, so long as the intention is clear. In all
such cases, benevolent construction is adopted.
 Consideration is given to the fact as to whether the will is drafted by a skilled lawyer
or by the testator himself.
There are two cardinal principles to be observed in the construction of will i,e. the rule of law
and the rule of construction. A rule of construction is one which points out what a court will
do in the absence of express or implied intention. A rule of law, is one which takes effect
when certain conditions are found, although the testator may have intended to the contrary.
 The first, is that clear and unambiguos dispositive words are not to be controlled or
qualified by any general expression of intention.
 The second, is that technical word or words of known legal import must have their
legal effect.
 When the language of the will is clear and consistent, it must receive its literal
construction, unless there is in the will itself something to suggest a departure from it.,
eg - Where a testator by his will authorises his widow ' do draw such sums of money
as she may require for her maintenance', the widow is not entitled to draw any money
she likes but only such amount as should be necessary for the purpose. Thus the
fundamental rule in construing the language of a will is to put on the words used the
meaning which, having regard to the terms of the will, the testator intended.
 The court has no power to rectify the will; it cannot alter a will to give effect to what
the testator might have done if he had thought about it.
 To read the will so as to lead to a testacy, not an intestacy. This is the golden rule.
 If two constructions are reasonably possible and one of them avoids intestacy while
the other leads to it, the court would certainly be justified in preferring that
construction which avoids intestacy.
C.L :- Re Williams CASE, 1895, In this case, the testarix made a will which she disposed
the property to 25 people categorised into 3 group and also instructions on how the property
wil be disposed if one of them dies before her. Day before the will was executed she wrote to
her solicitor and said the first group will get 2000 punds, 2nd gets 1000 punds, 3rd gets 500
pounds, etc. whether this letter is permissble as extrinsic evidence under s.21(i)(b) and (ii) of
the Administration of Justice Act, 1982 which provided for extrinsic evidence to clear the
intention of disposition- court said no because it does not signify any intention as to why such
a categorising is made, hence forth the property will be divided equally to all 25 by
harmonious or beneficiary interpretation.

SECTION 75. Inquiries to determine questions as to object or subject of Will.—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 to ascertain what is the subject-matter of the bequest; that is
to say, what estate of the testator’s is called Black Acre.
(iii) A, by his Will, leaves to B “the estate which I purchased of C”. It may be
necessary to take evidence in order to ascertain what estate the testator purchased
of C.

SCOPE - This section deals with the admissibility of extrinsic evidence in the aid of
interpretation of wills.

EXTRINSIC EVIDENCE
(i) Where the surrounding circumstances are taken into account under the 'armchair
principle'.
(ii) where from the words which the testator has used, the will is ambiguous on its
face
(iii) where the words which the testator has used are ambiguous in view of the
surrounding circumstances
(iv) where any part of the will is meaningless and
(v) to rebut presumptions which equity raises.

INTENTION OF TESTATOR AND ARMCHAIR RULE

Although, a will always speaks from the date of the death of the testator, in construing the
will, the court of construction should determine the facts and circumstances respecting the
testator's property and his family and other persons and things as at the date of the will, in
order to give effect to the words used in the will when the meaning and applications of his
words cannot be ascertained without taking evidence of such facts and circumstances. For
this purpose, evidence is received to enable the court to ascertain all the persons and facts
known to the testator when he made the will. The court, it has been said, puts itself into the
testator's airmchair.

In Boyes v Cook, James CJ said :-

" You may place yourself, to speak, in testator's armchair, and consider the circumstances, by
which he was surrounded when he made his will, to assist you in arriving at his intention"
In Jeaban V Jitendra, J Mukherjee, stated that " All authorities agree that in a will the
cardinal rule to be observed is to ascertain the real intention of the testator which the itself by
express words or by implication declares. The primary duty of the court is to ascertain from
the language of the entire document, what the intentions of the testator are. The court must
consider the surrounding circumstances, the positions of the testator, his family relationship,
the probability that he would use words in particular sense and many other things which are
often summed up in the somewhat picturesque figure. The court is entitled to put itself in the
testator's airmchair.
The court has no power to give effect to a hypothetical intention by supplying lacunae in the
will and thereby making a new will for the testator. The court cannot speculate what the
testator may have intended to write. The only intention of the testator which the court can
carry out, is intention either expressed or implied in the will. The court cannot make a will for
the testator. It must construe the will he has made.

To ascertain the intention of the testator, the court is concerned with three distinct questions :
1. What words has the testator used to express his intention
2. What is the meaning of such words in relation to the persons and things described
and
3. What is the meaning of the words in relation to the dispositions of such property
among the donees.

Evidence is admissible to enable the court to ascertain all the persons and facts which were
known to the testator at the time when he made the will and thus to place itself in the
testator's position. The court, it is said, puts itself in the testator's armchair. The object of
admitting the evidence of the surrounding circumstances is not speculating what the testator's
intention may have been when no direct evidence is available, but whether the circumstance
by which he was surrounded afford any certain indication of his intentions.

The armchair rule, however, does not apply where the subject matter of the bequest was not
in existence at the date of the will.

Examples
(i) Sherrat v Mountford - A testator makes a bequest to 'my nephew and nieces'.
The testator had no nephews and nieces at the date of the will or at his death, but
there were nephews and nieces of his wife. Evidence will be admissible to show
that the words referred to the nephews and nieces of the testator's wife
(ii) Doe d Thomas v Benyon - A testator gave legacies to mary , elizabeth and Ann,
the daughters of mary benyon. At the date of the will Mary Benyon had two
legitimate daughters Mary and Ann, and an illegitimate daughter Elizabeth.
Elizabeth cliamed the legacy as one of the persons fully answering the description.
Extrinsic evidence was admitted to show that mary benyon formerly had a
legitimate daughter named elizabeth who died some years before the execution of
 the will, and that the testator did not know either of her death or of the brth of the
illegitimate daughter. It was held that elizabeth was not entitled to the legacy. A
testator cannot be taken to have mean to benefit a person of whose existence he
was not aware, even if that person fully answers to the description.
(iii) Navneet Lal V Gokul, 1976, The court must in such cases consider surrounding
circumstances, the position of testator, his family relationships, the probability
that how he would use such words in particular sense.

SECTION 76. Misnomer or misdescription of object. -(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 whose second
son is named William. Thomas will have the legacy.
(iii)The testator bequeaths his property "to A and B, the legitimate children of C". C has
no legitimate child, but has two illegitimate children, A and B. The bequest to A and
B takes effect, although they are illegitimate.
(iv) The testator gives his residuary estate to be divided among "my seven children" and,
proceeding to enumerate them, mentions six names only. This omission will not
prevent the seventh child from taking a share with the others.
(v) The testator, having six grandchildren, makes a bequest to "my six grandchildren"
and, proceeding to mention by their Christian names, mentions one twice over
omitting another altogether. The one whose name is not mentioned will take a share
with the others.
(vi) The testator bequeaths "1,000 rupees to each of the three children of A". At the date
of the will A has four children. Each of these four children will, if he survives the
testator, receive a legacy of 1,000 rupees.

MISDECRIPTION OF THE OBJECT OF THE BEQUEST - This section deals with the
misnomer or misdescription of the object of the bequest i.e., legatee or legatees. S.78 and 79
deal with misdescription of the subject of the bequest i.e., the legacy.
A false description does not affect a gift if it is clear what the object described is.
Falsa demonstration non nocet i.e., if the legatee is designated by name and description, and
if there is a person who has he name but the description is incorrect, the description will be
neglected. Similarly, where a description is correct and the name incorrect, the incorrect
name will be neglected. If the description of donees is by number and there is mistake in
enumeration of a gift to a class, then all will take it equally.
C.L :- Ramachandran V R. Govindaraju, the legacy by a woman was to her
'Abhimnanaputra' but giving the name of the legatee wrongly. The foster son's name was
Govindarajan but the name had been given as Ramachandran. In an earlier will executed by
her, which stood revoked by an subsequent will, the reference to 'Abhimanaputra' was by the
name Govindarajan. Here, the court laid that the description of wrong name of
Ramachandran did not mean the bequest was to Ramachandran and construed it as a bequest
to Govindarajan.

SECTION 77. When words may be supplied. -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.

Where it is clear on the face of the will that the testator has not accurately or completely
expressed his meaning by the words he has used, and it is also clear what are the words which
he has omitted, these words may be supplied in order to effectuate the intention as collected
from the context was accepted by the Supreme court in Pramod Kumar's case.

SECTION 78. Rejection of erroneous particulars in description of subject. -

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.

Scope - 'Falsa demonstratio non nocet cum de corpore constat' means a false description
does not harm the instrument, when the thing is described with certainty. In the case of wills,
the rule is 'if, of various terms used to describe a subject matter, whether a person or a
property, some are sufficient to ascertain the subject matters with certainty, but others add a
description which is not true, these other terms are not allowed to vitiate the gift.' The
characteristic of the rule is that the description, so far as if it is false applies to no subject at
all, and so far as it is true applies one to only.
This section deals with misdescription of the thing bequeathed and the rule is that if the thing
can be sufficiently identified, any erroneous addition or error in part of the description shall
not vitiate the bequest.
SECTION 79. When part of description may not be rejected as erroneous. -If a will
mentions several circumstances as descriptive of the thing which the testator intends to
bequeath, and there is any property of his in respect of which all those circumstances exist,
the bequest shall be considered as limited to such property, and it shall 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 some not in the
occupation of X. The bequest will be considered as limited to such of the testator's marsh-
lands lying in L as were in the occupation of X.
(ii) A bequeaths to B "my marsh-lands lying in L and in the occupation of X, comprising
1,000 bighas of lands". The testator had marsh-lands lying in L some of which were in the
occupation of X and some not in the occupation of X. The measurement is wholly
inapplicable to the marsh-lands of either class, or to the whole taken together. The
measurement will be considered as struck out of the will, and such of the testator's marsh-
lands lying in L as were in the occupation of X shall alone pass by the bequest.

Scope - This section is a limitation on the previous section. The section follows the maxim
'non accipi debent verba in falsam demonsirationem quae competent in limitationem
verav' i.e., additional words are not rejected as importing false description, if they can be
read as words of restriction. It is immaterial in what part of the description the 'falso
demonstratio' occurs. It follows, that if there is a property, which exactly fits all the terms and
description that property, it alone passes and no other. Where a given subject is devised and
there are found two species of property, one technically and precisely corresponding to the
description in the devise and the other not so completely answering thereto, the latter will be
excluded.

SECTION 80. Extrinsic evidence admissible in cases of patent ambiguity. -

Where the words of a will are unambiguous, but it is found by extrinsic evidence that they
admit of applications, one only of which can have been intended by the testator, extrinsic
evidence may be taken to show which of these applications was intended.
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 estate was
intended.

ADMISSION OF EXTRINSIC EVIDENCE - This section limits the admisssion of

extrinsic evidence in the case of latent ambiguity only. Where the language of the will,
though intended to apply to one person or thing only, applies equally to two or more and it is
not possible t gather from the context which was intended, an equivocation arises. The words
must be unambiguous and apply to two or more objects of the testator's bounty, as in
Illustration (i) or two or more subjects of disposition as in Illustration (ii) or the quantity of
interest intended to be given. In such cases, the court will admit extrinsic evidence.

C.L :- Re Jackson, Beattie v Murphy, the bequest was to 'my nephew Arthur Murphy'.
There was no ambiguity on the face of it, but there were two nephews Arthur Murphy, and
the illegitimate one. Extrinsic evidence was admitted to prove which the nephew had the
testator's intended to benefit.

There are two kinds of ambiguities, one is patent ambiguity and the other is latent ambiguity.
The distinction between patent and latent ambiguity is the distinction between an ambiguity
appearing on the face of the will itself and an ambiguity which arises when the terms of the
will are applied to existing facts.

SECTION 81. Extrinsic evidence inadmissible in case of patent ambiguity or deficiency.

-Where there is an ambiguity or deficiency on the face of a will, no extrinsic evidence as to
the intentions of the testator shall be admitted.
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 intended to insert.
(iii) A bequeaths to B rupees, or "my estate of ". Evidence is not admissible to show what
sum or what estate the testator intended to insert.

Patent Ambiguity - The ordinary rule of construction of wills is not to insert or read into the
will words which are not there, unless the context requires. This section lays down the rule
that extrinsic evidence cannot be admitted in case of patent ambiguity or deficiency i.e., an
ambiguity on the face of the will itself. In other words, if the testator has kept his will
incomplete, evidence can never be given in order to complete it or to add to it or to explain
the incomplete portion.
Incomplete will - As a rule the court leans against intestacy and will attempt to give effect to
the will as far as it can possibly do.
In Re cory (deceased), the will contained the following passage :-
" after the death of each daughter, my trustees shall hold such share and future income thereof
upon trust for all such one or more exclusively of the others or other of the children or remote
issues of such daughter and in default if such and subject to any such appointment in trust'
etc. The court supplied the words 'as she shall appoint' after the word 'daughter' because the
testator continued his will with the words ' and in default of such appointment'.

SECTION 82. Meaning of clause to be collected from entire will. -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 exception out of the first as if he had said "I give Black Acre to B,
and all the rest of my estate to A".

RULES OF INTERPRETATION - In interpreting a will the court should read the will as a
whole and consider all the clauses and circumstances and find out the meaning of any clause
and the intention of the testator and give effect to it as far as the law permits. The general rule
of construction is first to ascertain by an examination of the entire will what is the natural and
grammatical meaning of the language used by the testator. The construction of the will is to
be made upon the entire instrument and all its parts are to be construed in relation to each
other and so as , if possible, to form one consistent whole.

SECTION 83. When words may be understood in restricted sense, and when in sense
wider than usual. -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 marshlands 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 sailor on ship-board) bequeathed to his mother his gold ring, buttons and
chest of clothes, and to his friend, A (a shipmate), his red box, clasp-knife and all things not
before bequeathed. The testator's share in a house does not pass to A under this bequest.
(iii) A, by his will, bequeathed to B all his household furniture, plate, linen, china, books,
pictures and all other goods of whatever kind; and afterwards bequeathed to B a specified
part of his property. Under the first bequest B is entitled only to such articles of the testator's
as are of the same nature with the articles therein enumerated.

EJUSDEM GENERIS RULE - The ejusdem generis rule on the meaning of general words
applies to wills as to other instruments. But this section enacts that this rule is liable to be
overridden by the context of the will and general words which follow particular and specific
words may be construed in a restrited sense and vice-versa. In Re Miller, Daniel v Daniel, the
testator made specific bequests to his books and wine, and his plate and then made a
residuary gift of 'all the rest of the furniture and effects at my residence'. Though the 'effect'
would have normally meant all personal property, the court applied the ejusdem generis
principle, so that the beneficiary did not take the share certificates and bank notes which were
at the testator's residence.
In re Williams Will Trusts, the testator directed his executors to advance a sum to his son 'for
the purpose of starting him in business or for advancement of any business with which he
may be concerned.' The son was a doctor. The trustees took out a summons to determine
whether the word 'business' included medical profession, it was held that it did.

SECTION 84. Which of two possible constructions preferred. -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.

When there are two modes of reading an instrument and one destroys and other preserves, it
is the rule of law and of equity following the law in this respect that the construction which
preserves should be adopted rather than that which destroys.

Where two constructions possible - Where on one construction , the bequest is lawful and on
another construction unlawful, the former has to be preferred. It is a settled rule of
interpretation that if there be admissible two constructions of a document, one of which will
give effect to all the clauses therein while the other will render one or more of them nugatory,
it is the former that should be adopted.

If in fact, there is a conflict between the earlier clause and the later clause and it is not
possible to give effect to all of them, the rule of construction will establish that it is the earlier
clause that must override the later clause and not vice versa
C.L ;- Mehma singh v Dhan kaur and ors - A testator in the earlier portion of his will
conferred absolute title in favour of his wife but by a subsequent clause cut down her interest
laying down a condition that she would have no right to alienate the property. That was
clearly repugnant to the earlier bequest, Once the testator has divested himself of his entire
estate, he cannot detract from the same. The subsequent clause imposing restraint on
alienation was held to be invalid on the ground of repugnancy.

SECTION 85. No part rejected, if can be it reasonably construed. -No part of a will shall
be rejected as destitute of meaning if it is possible to put a reasonable construction upon it.

No word can be rejected unless it is clear that the word or words in question are contrary to
the intentions expressed in the will. A will must be so construed that effect is given to every
word, and the court has no right to disregard a word, provided some meaning can be given to
it and that meaning is not contrary to the intention plainly expressed in other parts of the will.

Rational Construction - In construing a will it must be read as a whole and each clause be
taken in conjuction with and interpreted by other the portions of the instrument. Words of a
will are not to be rejected unless one cannot, by any possibility, give them a rational
construction. The court should give effect to every word of the will provided an effect can be
given to it, if that is possible and lawful. No word that has a clear and definite operation in
the disposal of the testator's property should be struck out. Full effect should be given to
every portion of the will unless it makes the provisions of the will inconsistent with each
other or leads to results which must be repugnant to the testator's idea of property. Attempts
should be mad e to rencocile appearent inconsistencies, but if that is not possible and if the
different clauses cannot be reconciled only then should s.88 be applied. For example, if land
is given to A in fee and afterwards in the same will, the same land is given to B for life, both
parts of the will will stand and the will will be construed as B for life and then to A absolutely
- Doe V davies.

SECTION 86. Interpretation of words repeated in different parts of will. - If the same
words occur in different parts of the same will, they shall be taken to have been used
everywhere in the same sense, unless a contrary intention appears.

The ordinary rule of presumption is when a word is used in part of the will with some clear
and definite meaning, the use of the same word in another part of the will is intended to mean
the same thing. In Krishnarao v Benabai, the word 'children' was held to apply to sons as well
as to daughters in all the clauses of the will.

Use of different words in same passage - If in two contemporaneous documents, the

executants were making reference to will and in another as a settlement, it must only be taken
that the executants knew the difference between a will and settlement and the document
styled as a settlement shall be treated only as such.

Contrary intention - This rule will not apply where the contrary intention appears to be
clear; but to prevent the operation of this rule the contrary intention must be strongly
indicated. This rule also will not apply and the court is not precluded from putting a different
construction upon the same words when applied to different subject matters. The word 'malik'
as applied to the widow was held to indicated only a life estate, but as applied to the adopted
son was interpreted to denote an absolute interest.

87. Testator's intention to be effectuated as far as possible.- 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.
Illustration
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.

Intention of testator to be effectuated - The rule laid down in this section is that if the
intention of the testator cannot be carried out of its full extent on account of operation of law,
the court of construction will attempt, as far as possible, to give effect to it albeit partially.
For the purpose o ascertaining the intention, the will is to be read as a whole without
reference to the consequences if any rule of law is transgressed. Once the intention is
collected, the rule of law should be applied to ascertain if the court can carry out the intetnion
wholly or in part. If it appears to the court that according to one construction to give effect
would be to offfend against some rule of law but accoridng to another it is fairly capable to
give effect partially and would avoid the legal objection, the latter is presumed to be the
intention of the testator.The court has an inclination to believe, if reasonably possible, that hte
testator did not intent to trangress the law.

C.L :- Pappa v Shanmughathammal, where the testator has created a trust by his will,
appointing certain person as trustees without any further direction, certainly he must be
deemed to have prescribe a line of succession of the trsutee and his heirs, although he does
not make any provision for succession after his death. The right given to the trustee was not
personal but only a heritable right. Further, after his death his wife was entitled to act as
trustee and on the death of his wife his daughter, the plaintiff, is entitled to act as trustee.

SECTION 88. The last of two inconsistent clauses prevails. -Where two clauses of gifts in
a will are irreconcileable, so that they cannot possibly stand together, the last shall prevail.
Illustration
(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.

This section is based on principle which means that if in a will there are two inconsistent
provisions, the latter shall prevail over the former. This principle has been accepted by the SC
wherein it was held that in the matter of will, the testator could always change his mind and
create another interest in place of the bequest already made in the earlier part, or on an earlier
occasion.
The cardinal rule shall be to construe the terms harmoniously and read down any
inconsistency - In matters pertaining to interpretation of will, the cardinal rule to be followed
while construing will and testaments which are solemn documents endeavour should be o
discern real intention of testator by reading of clauses in instruments together in harmonious
manner as far as possible and conclusion that there is conflict between clauses inter se in will
should be arrive only when no other conclusions is possible

Two inconsistent clauses - If in the same will there are two inconsistent and irreconcilable
gifts, and there is nothing else in the will to assist the court in determining the question, the
latter clause is to prevail as being the last expression of testator's wish. This is perhaps due to
the fact that the later clause is the last passing thought of the testator.

Before resorting to this rule, the court will endeavour to reconcile the apparent inconsistent
dispositions and attempt to read the will as a whole and where it is not possible to reconcile
all the parts, only the last clause shall prevail. This rule is to be applied strictly and the two
inconsistent clauses must refer to the same subject matter; the rule is not to be applied where
the two clauses are intended to provide for different circumstances. e.g. if the first clause of
the will the property is given to A and in the subsequent clause it is given to B for life, in
such a case both the clauses will be given effect to and the construction of will be that the
bequest will be to B for life and then to A absolutely. Refer to illustration (i)

SECTION 89. Will or bequest void for uncertainty. -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

Of void Bequests
SECTION 112. Bequest to person by particular description, who is not in existence at
testator's death.-Where a bequest is made to a person by a particular description, and there
is no person in existence at the testator's death who answers the description, the bequest is
void.
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 bequest is void.
 (ii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the
death of the testator, C had no son. Afterwards, during the life of B, a son is born to C. Upon
B's death the legacy goes to C's son.
(iii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the
death of the testator, C had no son. Afterwards, during the life of B, a son, named D, is born
to C. D dies, then B dies. The legacy goes to the representative of D.
(iv) A bequeaths his estate of Green Acre to B for life, and at his decease, to the eldest son of
C. Up to the death of B, C has had no son. The bequest to C's eldest son is void.
(v) A bequeaths 1,000 rupees to the eldest son of C, to be paid to him after the death of B. At
the death of the testator C has no son, but a son is afterwards born to him during the life of B
and is alive at B's death. C's son is entitled to the 1,000 rupees.

Void bequest. --There are four cases in which a bequest becomes void, and these are treated
in this chapter.
They are:
(a) A bequest to a person who is not in existence at the testator's death is void.
(b) A bequest to a person who is not in existence at the testator's death subject to a prior
bequest is void unless it comprises the whole of the testator's interest, in other words a
life interest to an unborn person is void.
(c) A bequest the vesting of which is delayed beyond the life of existing person and 18
years is void.
(d) A bequest to charity by a testator having a nephew or niece or nearer relation is void
unless the will is executed 12 months before his death and deposited with the registrar
within six months of its execution

Bequest to unborn persons. -- This section refers to bequests that are void if made to persons
who are not in existence at the testator's death and where the bequest is made by a particular
description and must be distinguished from s. 105. Section 105 deals with the case of a
legatee already born but who dies before the testator. In that case the legacy lapses and falls
into the residue. Under this section, the legacy is to an unborn person and becomes void and
goes as on intestacy. If the legatee is not in existence at the testator's death, the bequest is
void. Prima facie , a gift to the wife of A who has a wife living at the date of the will goes to
that wife and no other. If A has no wife at the date of the will, it will go to the wife of A
living at the testator's death. If A has no wife at the testator's death the bequest will be void
(Illust. (i)). According to English law, in the last case the bequest will go to any woman who
shall first answer the description of the wife of A at any subsequent period. It was held in Raj
Bajrang v. Thakurain Bakhtraj Kuer, 4. that no interest could be created in favour of an
unborn person, but when the gift is made to a class or a series of persons some of whom are
in existence and some are not, it does not fail in its entirety, it is valid with regard to the
persons, who are in existence at the time of testator's death and is invalid to the rest.

Exception. --Exception deals with the two cases of a deferred bequest to an unborn person,
one where the gift is deferred by reason of a prior bequest and second where it is otherwise
deferred. Illustrations (ii), (iii) and (iv) are examples of gifts deferred by reason of a prior
bequest and Illust. (v) is an example of a bequest otherwise deferred. In order to entitle an
unborn person to take, he must come into existence when the bequest becomes payable. If he
has once been born, it is immaterial whether he is alive or dead at the termination of the prior
estate. His representatives take in such a case, (see Illusts, (iii) and (v)). Where the wife of the
testator was given the right to enjoy the property during her life time and after her, her son's
son was entitled to the property, the gift to one of such sons though not born on the death of
the testator but born during the lifetime of the wife, was entitled to take the property, made
possible by the exception.

SECTION 113. Bequest to person not in existence at testator's death subject to prior
bequest.-Where a bequest is made to a person not in existence at the time of the testator's
death, subject to a prior bequest contained in the will, the later bequest shall be void, unless
it comprises the whole of the remaining interest of the testator in the thing bequeathed.
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 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 the
testator. A has daughters some of whom were not in existence at the testator's death. The
bequest to A's daughters comprises the whole interest that remains to the testator in the thing
bequeathed. The bequest to A's daughters is valid.
(iii) A fund is bequeathed to A for his life, and after his death to his daughters, with a
direction that, if any of them marries under the age of eighteen, her portion shall be settled so
that it may belong to herself for life and may be divisible among her children after her death.
A has no daughters living at the time of the testator's death, but has daughters born afterwards
who survive him. Here the direction for a settlement has the effect in the case of each
daughter who marries under eighteen of substituting for the absolute bequest to her a bequest
to her merely for her life; that is to say, a bequest to a person not in existence at the time of
the testator's death of something which is less than the whole interest that remains to the
testator in the thing bequeathed. The direction to settle the fund is void.
(iv) A bequeaths a sum of money to B for life, and directs that upon the death of B the fund
shall be settled upon his daughters, so that the portion of each daughter may belong to herself
for life, and may be divided among her children after her death. B has no daughter living at
the time of the testator's death. In this case the only bequest to the daughters of B is contained
in the direction to settle the fund, and this direction amounts to a bequest to persons not yet
born, of a life-interest in the fund, that is to say, of something which is less than the whole
interest that remains to the testator in the thing bequeathed. The direction to settle the fund
upon the daughters of B is void.

Bequest to unborn persons. --In the case of a gift to an unborn person--unborn meaning not
born at the date of the testator's death--this section enacts that in order that a bequest to such a
person should be valid it must comprise the whole of the remaining interest of the testator in
the thing bequeathed, if the bequest is subject to a prior bequest. The section is to be read in
conjunction with s. 112 for if the bequest is direct and the person is not born at the testator's
death, the bequest is void, e.g. a bequest is made to the eldest son of A and A has no son born
to him at the death of the testator, the bequest is void. This section can come into operation
only when the bequest to an unborn person is postponed by the intervention of a life or some
other interest in the thing bequeathed. This section has nothing to do with postponement of
possession; a failure to vest the whole remaining interest of the testator is repugnant to the
section but when that is done, it has no application.

There a person in the womb and child adopted after testators death come within this category.
This section is often confounded with s. 114 as rule against perpetuities, but it is not so. The
perpetuity section is 114. This section deals with the subject of gifts to unborn persons and it
lays down the limit of the quantum of interest that can be given to an unborn person, viz. ,
that you cannot give a life interest or any other limited interest to an unborn person, that if a
bequest is intended to be made in favour of an unborn person, then the testator must give the
whole of the beneficial interest to that unborn child in order that it should be valid, and that if
the whole of the remaining interest is not given such a bequest is wholly void. This section
has nothing to do with the vesting of the bequest unto the unborn person but deals only with
the quantum. To what limit the vesting can be postponed is the rule against perpetuity which
is treated in the next s. 114.

SECTION 114. Rule against perpetuity.-No bequest is valid whereby the vesting of the
thing bequeathed may be delayed beyond the life-time of one or more persons living 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 sons of B. The bequest after B's death is void.
(ii) A fund is bequeathed to A for his life, and after his death to B for his life, and after B's
death to such of B's sons as shall first attain the age of 25. B dies in the lifetime of the
testator, leaving one or more sons. In this case the sons of B are persons living at the time of
the testator's decease, and the time when either of them will attain 25 necessarily falls within
his own lifetime. The bequest is valid.
(iii) A fund is bequeathed to A for his life, and after his death to B for his life, with a
direction that after B's death it shall be divided amongst such of B's children as shall attain
the age of 18, but that, if no child of B shall attain that age, the fund shall go to C. Here the
time for the division of the fund must arrive at the latest at the expiration of 18 years from the
death of B, a person living at the testator's decease. All the bequests are valid.
(iv) A fund is bequeathed to trustees for the benefit of the testator's daughters, with a
direction that, if any of them marry under age, her share of the fund shall be settled so as to
devolve after her death upon such of her children as shall attain the age of 18. Any daughter
of the testator to whom the direction applies must be in existence at his decease, and any
portion of the fund which may eventually be settled as directed must vest not later than 18
years from the death of the daughters whose share it was. All these provisions are valid.
Definition. --Perpetuity has been defined as the creation of 'an inalienable and indestructible
interest'; in its secondary or artificial sense it denotes 'an interest which will not vest till a
remote period.' This section lays down the rule against perpetuity. There is another rule called
rule of 'possibility on a possibility,' or 'double possibility' which is not the same thing as
perpetuity. That rule is treated in s. 116. This section corresponds tos. 14 of the Transfer of
Property Act and s. 12 of the Oudh Estate Act (Act 1 of 1865). The rule is to prevent the
mischief of making property inalienable, unless for objects which are useful or beneficial to
the community.

Perpetuity according to English law. --After the recognition of future estate in English law
and the limitations of estates in remainder to unborn children, it was felt that unless some
rules restraining the creation of such estates were devised, property may be tied up in
perpetuity and the due bounds were settled by successive decisions. At first, such future
estates were allowed to take effect within the compass of an existing life, then within a
reasonable time afterwards. Next any number of existing lives was allowed to be taken, and
finally the reasonable time was settled as 21 years (18 in India) after the duration of existing
lives, with the possible addition of the period of gestation actually existing. The rule has been
enacted for the free and active circulation of property, both for the purposes of commerce and
the improvement of land and is founded upon considerations of public policy to prevent the
mischief of making property inalienable. This rule is ordinarily known as the rule against
perpetuity. The rule is one of public policy. The English rule differs from the rule laid down
in this section as it fixes the period at one or more life or lives in being and 21 years
afterwards irrespective of the minority of the person entitled.

The modern English rule against perpetuities is stated in Gray on Perpetuities. .

Rule I. --'No interest is good unless it must vest if at all not later than twenty-one years
after some life in being at the creation of the interest.'
In other words, the period fixed is a life or lives in being and eighteen years in India and 21
years in England with the addition of the period of gestation in case where gestation actually
exists. A devise or bequest to children 'born' or to the children 'living' at a given period
includes a child en ventre at that period and born afterwards. If the vesting is delayed beyond
that period, then the rule applies and the gift is void. Therefore, the rule lays down two
essentials, firstly, that the limitation must necessarily take effect if it takes effect within the
prescribed period, and secondly, if at the time of its creation the limitation is so framed and
no ex-necessitate to take effect within the prescribed period, that is, if the limitation is bad in
its inception, it will not become valid by reason of the happening of subsequent events which
bring the time of its actual vesting and taking effect within the prescribed period, e.g. if land
is devised to A for life and after his death to the eldest son of B, on his attaining 24 years the
limitation to the eldest son of B is void in its inception and even if at the death of A, B has a
son who has already attained 24 years or may attain 24 within 21 years of A's death, it will
not make the limitation valid.

Thus, there are two differences between the English law and Indian law:
(1) The age limit is 18 years and nine months where gestation actually exists under Indian
law; under English law it is 21 years and nine months.
 (e) The period of life in being and the minority of the person to whom the thing
bequeathed is to belong according to Indian law. According to English law, 21 years
in gross are allowed without reference to the infancy of any person.

Its application. --The rule against perpetuities applies to movable as well as to immovable
property. The rule does not apply to vested remainders. It applies to contingent remainders,
both legal and equitable and to executory devises.

Rule II. -- Rule in Whitby v. Mitchel .'An estate cannot be limited in remainder after an estate
given to an unborn person for life to any child of such unborn person.' In other words, there
cannot be a limitation to successive generations of unborn issue. In Whitby's case, land was
devised to an unborn person for life with remainder to the children of that unborn person and
it was held that the limitations were void. This rule has been abolished by s. 161(1) of the
Law of Property Act , 1925 (12 & 13 Geo V c 13 s. 18) provided the rule against perpetuity is
not infringed.

Rule III. -- Rule in Re Frost: 'That a contingent remainder limited to take effect after a
contingent remainder is void unless it must necessarily vest within the period allowed by the
rule against perpetuities.'

Rule IV. -- Limitations in themselves are valid, which follow but are not dependent upon
limitations offending the rule against perpetuities not affected by the invalidity of prior
limitations. Where a gift is void for remoteness, all limitations ulterior to and dependent on
such remote gift are also void, though the object of the prior gift may never come into
existence (see s. 116). But if the gift is independent of the earlier trust, although intended to
be made subject to it then the gift is good. In other words, limitations in themselves are valid
which follow but not dependent upon the limitations offending the rule against perpetuities,
are not affected by the invalidity of the prior limitations. Re Canning's Will Trusts was
followed in Re Coleman, Public Trustee v. Coleman . In this case, the bequest was to one of
the sons of the testator W for life and after his death to any widow whom he may marry for
life and after the death of the widow for the children of W at 21 or marriage. It was held that
the trust in favour of the widow was void as being a trust in favour of a person not born at the
testator's death but the trust in favour of the children was good.

The rule to be deducted from these decisions is that a gift to a class to be ascertained on the
basis of the testator's last surviving child would not infringe the rule against perpetuities. But
a gift for a class to be ascertained on the death of the last surviving widow or widower of the
testator's children would infringe the rule against perpetuities since a child might marry a
person who was not alive and in being at the testator's death. The same rule would be applied
according to s. 116. In Putlibai v. Sorabji Naoroji Ganadia, the testator devised his house
upon trust to allow his daughter until her death or marriage and all his sons and their
respective families including widows to reside therein until the youngest of his grandsons
living at the death of the last survivor of his sons should attain the age of 18 years and then
for sale and conversion. It was held that during the son's lives their wives took no
independent gift but the gift to the son entitled him to reside there with his wife.

Charity. --The term 'perpetuity' when, applied to charity is used in two senses. In its primary
sense, it is a rule which forbids creation of a permanent inalienable interest in property; in its
secondary sense, it means a grant or disposition of property whereby the vesting is delayed
for a period longer than the life in being and 18 years. All charitable gifts create an
inalienable and a permanent interest. Hence, charitable bequests are an exception to the rule
against perpetuity only in its secondary sense and if that rule is infringed the gift may be void.
The words used in this section are 'no bequest is valid' which means bequest of any kind
whether a bequest to an individual or to a charity. It makes no difference between charitable
and non charitable objects

SECTION 115. Bequest to a class some of whom may come under rules in sections 113
and 114.-If a bequest is made to a class of persons with regard to some of whom it is
inoperative by reason of the provisions of section 113 or section 114, such bequest shall be
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, therefor, is inoperative as to any child born after the testator's
death; 2*[and in regard to those who do not attain the age of 25 within 18 years after A's
death, but is operative in regard to the other children of A].
(ii) A fund is bequeathed to A for his life, and after his death to B, C, D and all other
children of A who shall attain the age of 25. B, C, D are children of A living at the testator's
decease. In all other respects the case is the same as that supposed in Illustration (i).
[Although the mention of B, C and D does not prevent the bequest from being regarded as a
bequest to a class, it is not wholly void. It is operative as regards any of the children B, C or
D, who attains the age of 25 within 18 years after A's death.]

The doctrine in Leake v. Robinson (cited supra) was discussed in Hale v. Hale , 39. where it
was held that this rule is that vice of remoteness affects the class as whole if it may affect an
ascertained number of its members. Illustration (i) as it originally stood was adopted from
this decision and a bequest to a class was held to be wholly void if it was inoperative with
regard to some members of the class by reason of the provisions of s s. 113 and 114. As a
result of the amendment, the bequest is now only void with respect to those members and it is
valid with respect to the remaining members of the class

SECTION 116. Bequest to take effect on failure of prior bequest.-Where by reason of any
of the rules contained in sections 113 and 114, any bequest in favour of a person or of a class
of persons is void in regard to such person or the whole of such class, any bequest contained
in the same will and intended to take effect after or upon failure of such prior bequest is also
void.

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 his sons as shall first
attain the age of 25, and, if no son of A shall attain that age, to B. A and B survive the
testator. The bequest to B is intended to take effect upon failure of the bequest to such of A's
sons as shall first attain the age of 25, which bequest is void under section 114. The bequest
to B is void.
This section incorporates the rule of English law, viz. , that 'limitations upon void limitations
are themselves void,' the transaction being one and indivisible, the failure of the prior bequest
for any of the rules against perpetuities leads to the failure of the whole of the subsequent
limitation.

SECTION 118. Bequest to religious or charitable uses.-No man having a nephew or niece
or any nearer relative shall have power to bequeath any property to religious or charitable
uses, except 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:
["Provided that nothing in this section shall apply to a Parsi."]

Illustrations
A having a nephew makes a bequest by a will not executed and deposited as required--
for the relief of poor people;
for the maintenance of sick soldiers;
for the erection or support of a hospital;
for the education and preferment of orphans;
for the support of scholars;
for the erection or support of a school;
for the building and repairs of a bridge;
for the making of roads;
for the erection or support of a church;
for the repairs of a church;
for the benefit of ministers of religion;
for the formation or support of a public garden;
All these bequests are void

The provision curtailing the testamentary power of disposal of property who has no nearer
relation than a nephew or niece is circumscribed by one, an event not too proximate to death
viz. , the execution must have been not less than 12 months before his death and two, a
procedural requirement that such a will must be deposited in the place provided by law for
safe deposit of wills within six months from the date of its execution. Section 118 of the
Act imposes a restriction only on the Indian Christians.

Constitutionality. --The Division Bench of the Kerala High Court in Preman v. Union of
India , 83. had initially held that this section:
 (1) discriminates against a Christian vis--vis non-Christians;
(2) discriminates against testamentary disposition by a Christian vis-a-vis non-
testamentary disposition;
(3) discriminates against religious and charitable use of property vis-a-vis all other uses
including not so desirable purposes;
(4) discriminates against Christian who has a nephew, niece or nearest relative vis-a-vis a
Christian who has no relative at all;
(5) discriminates a Christian who dies within 12 months of execution of will of which he
has no context. It was declared thats. 118 of the THE INDIAN SUCCESSION ACT is
anomalous and anachronistic being violative of 14,15 and 25 26of the Constitution of
India and was struck down as unconstitutional.

Unconstitutionality of the provision. --The constitutionality of this provision came up in

challenge again in Supreme Court in John Vallamattom v. Union of India 84. and the
provision has now been struck down. The Court has ruled against the constitutionality of
section 118 essentially on the following grounds:
(1) of unreasonable - It is difficult to appreciate as to why a testator would, although, be
entitled to bequeath his property by way of charitable and religious disposition if he
has a wife but he would be precluded from doing so in the event he has a nephew or a
niece. of death within twelve months of execution of the will or if it is not deposited
in the place provided by law within six months. Since as per the impugned provision
the testator who lives beyond the statutory period of twelve months is not able to
execute his wishes in relation to his property, the impugned provision defeats the
object of the will. In this view of the matter, such a provision is unreasonable and
arbitrary. It is really strange as to how a statute may permit deathbed gifts to any other
person for any purpose whatsoever including illegal or immoral purposes but
restriction has been imposed on testamentary disposition for religious or charitable
uses
(2) as arbitrary - Charitable purposes are philanthropic and since a person's freedom to
dispose of property for such purposes has nothing to do with religious influence, the
impugned provision treating bequests for both religious and charitable purposes is
discriminatory and violative of Article 14 of the Constitution.
(3) Discriminatory to Christians. -- (i) The THE INDIAN SUCCESSION ACT though is
claimed to be a universal law of testamentary disposition, but in effect, crucial
sections apply only to Christians. There is no acceptable answer as to why Section
118 of the Act is made applicable to Christians alone and not to others.

Conditions for valid charitable bequest. --For the purpose of creating a valid charitable
bequest by will, the conditions laid down by this section must all be complied with i.e. a man
having a nephew or a niece or nearer relation, i.e. father, mother, son, daughter, grandfather,
grandmother, grandson, granddaughter, brother or sister, shall not be entitled to make a will
or a provision in the will for religious uses or for charitable uses unless the will shall have
been made not less than twelve months before his death and the will is deposited within six
months from its execution in the registrar's office and the will must remain so deposited until
the death of the testator. The expression 'relationship' denotes only legitimate relationship.
They cover such relationship as originates from lawful wedlock. A testator having a bastard
nephew can dispose of his property for charitable purpose and such nephew cannot take
objection under this section. An adopted son is a near relative, but a wife is not. An
application for revocation of will which made bequest for charitable purpose, but testator died
within 12 months was rejected on the ground that applicant is not a near relative. Who is a
'near relation' is to be determined according to the table of consanguinity. (see s. 28 and Sch.
I). The term has no application to any relationship by marriage. The object of the section is to
prohibit deathbed bequests to religious or charitable uses by persons having near relations.

In Rebello v. Rebello , the bequest was to a church dignitary and for charitable or religious
uses but as the will was not deposited as required by this section, the bequest failed

Of Onerous Bequests
SECTION 122. Onerous bequests.-Where a bequest imposes an obligation on the legatee,
he can take nothing by it unless he accepts it fully.
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).

Onerous bequests. --Where onerous and beneficial property is included in the same bequest,
the legatee cannot disclaimer the onerous and accept the beneficial, unless the will manifests
sufficient intention of the testator to the contrary. The legatee has no claim of election; either
he must accept the whole or none. If he accepts it, he takes it with all the benefits and
burdens. If the condition of the gift requires him to do some act involving expense, he is, if he
accepts the gift, personally liable for that act being done. But the legatee is not bound to
accept the gift. He may disclaim it in which event he forfeits the entire gift.

Disclaimer. --Disclaimer may be made orally or by writing. It may be expressed or implied.

If the person is sui juris, he may be called upon by the executor to intimate his decision. If the
legatee unequivocally disclaims, he cannot afterwards claim it nor can he, having once
accepted the gift, afterwards repudiate it. A disclaimer by a person sui juris is in general final
and cannot be retracted, but where the rights of other parties are not prejudiced and they have
not altered their position on the faith of the disclaimer and the disclaimer has been made
without consideration, a disclaimer may be retracted. In English law, assent by a donee is
presumed unless and until he disclaims and the same principles is extended even to onerous
gifts There is also another kind of bequest which imposes upon the legatee an obligation, e.g.
a bequest of the testator's property to one of his sons A, subject to the obligation on him to
make some annual or monthly payment to B. In such case, if A assents to take the legacy, he
takes it subject to such obligation.

SECTION 123. One of two separate and independent bequests to same person
may be accepted, and other refused.-Where a will contains two separate and independent
bequests to the same person, the legatee is at liberty to accept one of them and refuse the
other, although the former may be beneficial and the latter onerous.
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.
Scope of section. --Where a testator makes two distinct bequests in the same will to the same
person, one of which happens to be onerous and the other beneficial, prima facie the legatee
is entitled to disclaim the onerous and to take the other. Where there are several gifts to the
same legatee, some of which are onerous and some beneficial, the question has in some cases,
arisen whether he is bound to take all, or none, or whether he can elect to take the beneficial
and reject the onerous gift. The general rule is that when several independent gifts are made
to the same legatee, the legatee may reject the onerous legacies without forfeiting the others.
It is no objection that the legatee by repudiating an onerous bequest will throw a burden on
the testator's estate. But in such cases, it is the intention of the testator to be gathered from
the will, whether the legatee must elect to take all or none of the gifts in the will or whether
he may accept the beneficial and repudiate the onerous.
The rule laid down in this section is enacted ins. 127 of the Transfer of Property Act.

Of Contingent Bequests
SECTION 124. Bequest contingent upon specified uncertain event, no time being
mentioned for its occurrence.-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 be does not take effect.
(iv) A legacy is bequeathed to A for life, and, after his death to B, and, "in case of B's death
without children," to C. The words "in case of B's death without children" are to be
understood as meaning in case B dies without children during the lifetime of A.
(v) A legacy is bequeathed to A for life, and, after his death to B, and, "in case of B's death,"
to C. The words "in case of B's death" are to be considered as meaning "in case B dies in the
lifetime of A".

Of Conditional Bequests
SECTION 126. Bequest upon impossible condition.-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.
Definition. --A conditional legacy may be defined to be a bequest, the existence of which
depends upon the happening or not happening of some uncertain event by which it is either to
take place or to be defeated.

Conditions precedent and subsequent. --Conditions are of two kinds-- conditions precedent
and conditions subsequent. The former precede the vesting of estate , the latter are to be
performed after the estate has become vested and if not performed may, in many cases, cause
interests already vested to be divested or to be altogether void. Where the condition is
precedent the estate is not vested in the grantee until performed, but where the condition is
subsequent the estate vested immediately in the grantee and remains in him till the condition
be broken.

Impossible condition. --A testator may attach to his bequest, conditions, provided such
conditions are not impossible to perform, are not unlawful, or contrary to public policy, or in
general restraint of marriage. The impossibility must be in the nature of things. The section
deals with impossible conditions. If the condition is impossible for performance, the gift is
void. The impossibility may have arisen at the date of the will as in Illust. (ii) or subsequent.

A gift does not vest when there is a condition precedent which is impossible to perform or
becomes impossible by act of God or from circumstances over which neither the legatee nor
the testator had any control or by the act of the testator himself. In Illust. (i), the condition
that A shall walk 100 miles in an hour is a condition precedent. In Illust. (i) to s. 133, the
condition that A shall walk 100 miles in an hour is a condition subsequent. if the condition is
subsequent the gift takes effect and the condition is void. In Illust. (ii), the condition is a
condition precedent and it is immaterial whether A 's daughter was dead had come to the
knowledge of the testator or not, as the performance of the condition appears to be the motive
of the bequest.in such cases, even if A 's daughter was alive at the date of the will but dies
before the marriage could be solemnised the impossibility will be a bar
to the claim of the legatee. In Rajendra v. Mrinalini , a bequest was made upon condition that
the legatee should excavate a certain tank. The testator himself, subsequent to the will,
excavated the tank and the condition became impossible of performance. It was held that the
bequest failed. But if the fulfilment of the conditions precedent is rendered impossible by
operation of law before the date of the will, then the condition is void and the gift remains.

SECTION 127. Bequest upon illegal or immoral condition.-- A bequest upon a condition,
the fulfilment of which would be contrary to law or to morality is void.
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.

Conditions against public policy.-- Conditions against public policy or public morality are
those as to which the state has, or may have, an interest that they should remain unperformed
or unfulfilled. Illustration (i) is an example of condition void as against public policy or law.
Illustration (ii) is an example of condition void against public morality--the sanctity of
marriage. Inducing or facilitating or encouraging a married couple to divorce each other is
viewed with disfavour by courts of law as being against public policy.

Conditions against public morality--Conditions as to religion. --A condition of forfeiture

in case the legatee embraces a peculiar faith, or marries a person embracing a peculiar faith,
or marries a domestic servant is not against public morality

SECTION 128. Fulfilment of condition precedent to vesting of legacy.-

Where a will imposes a condition to be fulfilled before the legatee can take a vested interest
in the thing bequeathed, the condition shall be considered to have been fulfilled if it has been
substantially complied with.
Illustrations
(i) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C, D
and E. A marries with the written consent of B. C is present at the marriage. D sends a
present to A previous to the marriage. E has been personally informed by A of his intentions,
and has made no objection. A has fulfilled the condition.
(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 is bequeathed to A on condition that he shall marry with the consent of B, C
and D. A marries in the lifetime of B, C and D, with the consent of B and C only. A has not
fulfilled the condition.
(iv) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C
and D. A obtains the unconditional assent of B, C and D to his marriage with E. Afterwards
B, C and D capriciously retract their consent. A marries E. A has fulfilled the condition.
(v) A legacy is bequeathed to A on condition that he shall marry with the consent of B, C and
D. A marries without the consent of B, C and D, but obtains their consent after the marriage.
A has not fulfilled the condition.
(vi) A makes his will whereby he bequeaths a sum of money to B if B shall marry with the
consent of A's executors. B marries during the lifetime of A, and A afterwards expresses his
approbation of the marriage. A dies. The bequest to B takes effect.
(vii) A legacy is bequeathed to A if he executes a certain document within a time specified in
the will. The document is executed by A within a reasonable time, but not within the time
specified in the will. A has not performed the condition, and is not entitled to receive the
legacy

Performance of conditions precedent. --With respect to the performance of conditions, the

general rule is that in case of a condition precedent all that the claimant has to show is that he
has done everything. In other words, if the condition is performed cy pres as it is called that
would be enough. But where there is a condition precedent to the vesting of the interest of a
devisee and on his failing to perform the condition the property is given over, that condition
must be complied with strictly. With regard to conditions requiring consent to marriage, the
court may hold a condition satisfied when it has been complied with substantially, though not
in terms, whether the condition is precedent or subsequent but in case of a condition
subsequent when there is a gift over, the condition must be strictly performed.
Conditions as to consent to marriage. --With regard to the conditions requiring marriage
with the consent of certain persons, either executors, trustees, or others, it has been decided
that such consent must be obtained before, or, at the marriage and not afterwards. Consent
obtained subsequently will not be a performance of the condition as can be seen in Illust. (v),
and the consent of all the executors, trustee, or other persons whose consent is required must
be obtained, if they are in existence; a consent of the majority is not sufficient which can be
seen in Illust. (iii). Where a bequest was made to a person on the condition of his marrying
with the consent of his parents and one of the parents had died and the legatee married with
the consent of the surviving parent, the condition is complied with as can be seen in Illust.
(ii). A general consent to any marriage is sufficient

SECTION 105. In what case legacy lapses.-(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 dying before the testator, to B. A dies before
the testator. The legacy goes to B.
(iv) A sum of money is bequeathed to A for life, and after his death to B. A dies in the
lifetime of the testator; B survives the testator. The bequest to B takes effect.
(v) A sum of money is bequeathed to A on his completing his eighteenth year, and in case he
should die before he completes his eighteenth year, to B. A completes his eighteenth year,
and dies in the lifetime of the testator. The legacy to A lapses, and the bequest to B does not
take effect.
(vi) The testator and the legatee perished in the same shipwreck. There is no evidence to
show which died first. The legacy lapses.

Lapse :- The term 'lapse' is applied to the failure of testamentary gift owing to the death of
the legatee before the death of the testator either before,. or after making the will. In order to
entitle the legatee to his legacy he must survive the testator, otherwise the legacy cannot take
effect. The section enacts that a legacy shall lapse and form part of the residue of the
testator's property, if the legatee does not survive the testator except when it appears by the
will that the testator intended that the legacy shall, on the legatee not surviving him go to
some other person.
where the testator and the legatee die together, e.g. when both are drowned in the same ship
and it is not proved who survived whom, the legacy will lapse (see Illust. vi).
In Bachman v. Bachman , a testator directed his executors to sell and convert his property
into money and to divide the same among several named legatees when they should attain the
age of 21 in case of males and in case of females when they attained that age or were married.
One of the legatees who had attained the age of 21, died five months after the death of the
testator leaving an issue. It was held that the legacy vested in the deceased legatee and the
issue were entitled to it.

Circumstances that bring about lapse. --The only event mentioned in this section is the
death of the legatee in the lifetime of the testator. The legatee must have had a beneficial
interest in order that this doctrine operates.

On refusal of legacy by the beneficiary, bequest lapses and intestate succession operates.
-- In Mukesh Kumar Gupta v. Smt. Prabha Vaithiyanathan and Ors. , the testator had
poisoned her daughters and wife. The former died but the wife alone survived. He had
committed suicide. He had however executed a will some 20 days before his death
bequeathing his properties to the Red Cross Society. The Society did not accept the bequest
since according to it, the offences he had committed did not accord with the idea of charity.
The wife claimed the property and applied for letters of administration. It was opposed by a
person who was an advocate by profession on the ground that the wife had been disinherited
under the will and hence she was disqualified under sections 28 and 29 of the Hindu Marriage
Act to claim the estate. The Court found that the legacy had lapsed and the estate devolved as
on intestacy.

Effect of lapse. --Unless a contrary intention appears in the will, a lapsed legacy will form a
part of the residue of the testator's property and shall be included in the residuary bequest.

No lapse if beneficiary in a mutual will dies after the death of one of testators. --It is the
death of the first testator to die without revoking his own will which renders the will of the
survivor irrevocable in equity. Hence, a legatee under the mutual wills, who survives the first
testator but predeceases the second, does not lose his legacy on the ground of lapse

SECTION S. 106. Legacy does not lapse if one or two joint legatees die before testator.--
If a legacy is given to two persons jointly, and one of them dies before the testator, the other
legatee takes the whole.
Illustration
The legacy is simply to A and B. A dies before the testator. B takes the legacy.

Scope. -- Section 106 deals with a bequest to persons as joint tenants; s. 107 deals with a
bequest to persons as tenant-in-common. The essential characteristics of a joint tenancy are:
(1) unity of possession;
(2) unity of interest;
(3) unity of title; and
(4) unity of the time of commencement of title.
A tenancy-in-common has only unity of possession.

Joint tenancy. --Where a legacy is given to several persons concurrently, a question arises
whether these persons take as joint tenants or as tenants-in-common. This will depend on the
context of the will. A simple money legacy to A and B (as in the illustration) will prima facie
be to them as joint tenants so that if A dies before the testator, B will take the whole legacy.
Although the section speaks of a legacy to two persons, the same rule applies if the bequest is
to several persons, and the share of any one that dies will not lapse but will go to the survivor.

S. 107. Effect of words showing testator's intention to give distinct shares.--

If a legacy is given to legatees in words which show that the testator intended to give them
distinct shares of it, then if any legatee dies before the testator, so much of the legacy as was
intended for him shall fall into the residue of the testator's property.
Illustration
A sum of money is bequeathed to A, B and C, to be equally divided among them. A dies
before the testator. B and C will only take so much as they would have had if A had survived
the testator.

S. 107. Effect of words showing testator's intention to give distinct shares.--

If a legacy is given to legatees in words which show that the testator intended to give them
distinct shares of it, then if any legatee dies before the testator, so much of the legacy as was
intended for him shall fall into the residue of the testator's property.
Illustration
A sum of money is bequeathed to A, B and C, to be equally divided among them. A dies
before the testator. B and C will only take so much as they would have had if A had survived
the testator.

S. 108. When lapsed share goes as undisposed of.--

Where a share which lapses is a part of the general residue bequeathed by the will, that share
shall go as undisposed of.
Illustration
The testator bequeaths the residue of his estate to A, B and C, to be equally divided between
them. A dies before the testator. His one-third of the residue goes as undisposed of.

Scope. --Under s. 103, a legacy that lapses will form a part of the residue and will go to the
residuary legatee. This section comes into operation when the residue itself lapses by the
death of the residuary legatee before the testator or in any other manner. Where the residue is
undisposed of or lapses, it will go as on intestacy and be divided amongst the next-of-kin of
the deceased and all the next-of-kin will share in spite of any one being expressly excluded
by the will. If the residue is undisposed of it must be divided amongst all the next-of-kin of
the testator as on intestacy, notwithstanding the fact that the testator has by his will directed
that one of them shall take no share in his property.
S. 109. When bequest to testator's child or lineal descendant does not lapse on his death
in testator's lifetime.--
Where a bequest has been made to any child or other lineal descendant of the testator, and the
legatee dies in the lifetime of the testator but any lineal descendant of his survives the
testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had
happened immediately after the death of the testator, unless a contrary intention appears by
the will.
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.

The testator bequeathed her estate to two daughters equally and one of them died in his
lifetime, leaving a daughter. It was held that by virtue of this section, daughter's daughter will
take the legacy given to her mother.

Section 110. Bequest to A for benefit of B does not lapse by A's death.--
Where a bequest is made to one person for the benefit of another, the legacy does not lapse
by the death, in the testator's lifetime, of the person to whom the bequest is made.

Scope. --An annuitant would be entitled to receive the annuity annually as long as the person
directed under the will to pay the annuity is alive. During the lifetime of the said person if the
annuitant died the said annuity continued to be payable to the annuitant's assignees under a
deed of trust executed by him as the annuitant has a vested interest in the said annuity which
he was entitled to receive during the lifetime of the person directed to pay the annuity under
the said will. The annuity would not lapse due to the death of the annuitant during the lifetime
of the person directed to pay the said annuity.

This section is another exception to the doctrine of lapse. If property is bequeathed to A in

trust for B , the beneficial interest of B will not lapse by the death of the trustee A in the
lifetime of the testator.
 Of Ademption of Legacies
SECTION 152. Ademption explained.-If anything which has been specifically bequeathed
does not belong to the testator at the time of his death, or has been converted into property of
a different kind, the legacy is adeemed; that is, it cannot take effect, by reason of the subject
matter having been withdrawn from the operation of the will.
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 in his lifetime,--
sells or gives away the ring:
converts the chain into a cup:
converts the wool into cloth:
makes the cloth into a garment:
takes another house into which he removes all his goods.
Each of these legacies is adeemed.
(ii) A bequeaths to B--
"the sum of 1,000 rupees, in a certain chest":
"all the horses in my stable".
At the death of A, no money is found in the chest, and no horses
in the stable. The legacies are adeemed.
(iii) A bequeaths to B certain bales of goods. A takes the goods with him on a voyage. The
ship and goods are lost at sea, and A is drowned. The legacy is adeemed.

DEFINITION - Ademption may be defined to be the failure of a specific bequest or devise

through it subject not being in existence in specie at the time of the testator's death as a part
of his estate. A specific gift is 'lost' or 'withdrawn' when the subject matter does not exist or
has fundamentally changed its character at the time of testator's death. This principle is
known by the technical word 'ademption'. A Specific gift is adeemed , if , at the testator's
death the subject matter of the gift has been destroyed or converted into something else the
out of testator or by duly constituted authority.

A Specific gift may be a deemed by the subject matter of the gift, during the testator's life,
ceasing to be part of his estate or ceasing to conform to the description by which it is given
on account of the testator's disposition or conversion or change of investment of the subject
of the bequest; the conversion must be complete in the lifetime of the testator. This section
lays down the general rule regarding the ademption of specific legacie. A specific devise of
land is adeemed if the land is afterwards sold though the purchase money may be impressed
with a trust of reinvestment of land.

On conversion of immovable property into form of money by acquisition of land by state

during the life time of testator, the legacy through a will before the acquisition to a particular
individual shall be adeemed and on such ademption, succession shall open and all the heirs
will have the right to receive the compensation as per the provisions of the Hindu Succession
Act.

Where a testator bequesthed a specific item of property, i.e., a vacant site, but during the
lifetime of the testator building were constructed in the vacant site, it was held that the
legatee cannot claim over the building and the legacy is adeemed.

SECTION 327. Abatement of general legacies.-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.
Order of payment of legacies - After the payment of debts, the legacies are to be paid and
the order for payment of legacies is :-
1. Specific legacies (s.142)
2. Demonstrative legacies (s.150). and
3. General legacies
Abatement of general legacies - If the estate is not sufficient to pay all the legacies in full,
the general legacies abate pro rata in the absence of a contrary direction by the testator.
S.331 shows that for the purpose of abatement, a legacy for life and annuities are treated as
general legacies and on deficiency of assets, abate proportionately.

Legacy of executor - This section enacts that the executor has no right to retain any money
on account of legacy to himself or to any person for whom he is a trustee, in priority to other
general legatees. Legacies given to them cannot be claimed as compensation for their trouble
in administering the estate and on the presumed intention of the testator to be given in
priority. On the deficiency of assets, legacies given to the executor will fall within the rule
applicable to abatement of general legacies.

Contrary Intention - If by the express words or fair construction of the will, the intention of
testator is clearly manifest to give one general legatee a priority over the others, that intention
must be given effect to. But the direction that particular legacy is to be given first and another
legacy in the second place, does not create priority if the assets are not sufficient to pay to all
the legatees. Near relationship to the testator is not sufficient to give a legatee priority.
According to Williams on Executors, where the assets are sufficient to answer the duty and
specific legacies, but not the general legacies, the latter are subject to abatement, unless the
will clearly indicates the contrary. The abatement must take place, among all the general
legatees in equal propoertions. The value of the general legacies of stock is taken for
abatement at the end of one year after testator death. An executor has no power to give
himself a preference in regard to his own legacy, as he had with his own debt.

The onus of proving that his legacy was intended by the testator to be paid in priority lies on
the party, seeking priority.

SECTION 142. Specific legacy defined.-Where a testator bequeaths to any person a

specified part of his property, which is distinguished from all other parts of his property, the
legacy is said to be specific.
Illustration
(ii) A, having Government promissory notes for 10,000 rupees, bequeaths to his executors
"Government promissory notes for 10,000 rupees in trust to sell" for the benefit of B. The
legacy is specific.
(iii) A, having property at Benares, and also in other places, bequeaths to B all his property
at Benares. The legacy is specific.
(iv) A bequeaths to B--
his house in Calcutta:
his zamindari of Rampur:
his taluq of Ramnagar:
his lease of the indigo-factory of Salkya:
an annuity of 500 rupees out of the rents of his zamindari of W.
A directs his zamindari of X to be sold, and the proceeds to be invested for the benefit of B.
Each of these bequests is specific.
(v) A by his will charges his zamindari of Y with an annuity of 1,000 rupees to C during his
life, and subject to this charge he bequeaths the zamindari to D. Each of these bequests is
specific.

Meaning of legacy and devise - In england, the word 'legacy' or 'bequest' denotes a gift
of personal estate and the word 'devise' denotes of gift of real estate.

Classification of legacy - Legacies are ordinarily divided into two classes namely : Specific
legacies and general legacies. There is also a third kind of legacy called demonstrative
legacy.

General - A general legacy of money is commonly called a 'primary legacy'. A general

legacy may or may not be a part of the testator's property. It is gift of something, which, in
the even of the testator leaving sufficient assets, must be raised by his executor out of his
general estate. A general legacy is a legacy not of any particular thing, but of something
which is to be provided out of the testator's general estate. on the other hand, specific legacy
is a gift of a severed or distinguished part of the testator's property, then showing an intention
that the property shall pass to the legatee 'in specie'.
Specific - It id defined by this section as being a specified part of the testator's property and it
must be a part as distinguished from the whole of his property. It must be identified by a
sufficient description and separated in favour of the particular legatee from the general mass
of the testator's property. The defintion in this section corresponds to the definition in the
judgement in Bothomley v Sherson.
In order to determine whether it is specific or not, the following is applied :-
1. it must be a part of the testator's propety
2. It must be a part specifically distinguished, from the whole i/e. a severed or
distinguished part.
3. It must be the whole of the testator's property or of the general residue.
4. It should be taken in the condition in which it is. The use of the word 'my' before the
thing bequeathed has always been considered to be a factor almost conclusive in
determining that the legacy is specific.
Demonstrative - A demonstrative legacy is a legacy given with reference to a particular
source out of which it is to be met. A bequest of some money not necessarily part of the
estate and not distinguishable from all other estates of the same kind was held to be a
demonstrative legacy and not a specific legacy.

In case of general legacies, if the assets of the testator after payment of debts, necessary
expenses and specific legacies are not sufficient to pay all the general legacies in full, they
abate proportionately as given in s.327

SECTION 150. Demonstrative legacy defined.-Where a testator bequeaths a certain sum of

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

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 legacy to B is
specific, the legacy to C is demonstrative.

Demonstrative legacy - It is a pecuniary legacy ie., 'a certain sum of money or a certain
quantity of any other commodity,' payable out of a particular fund or stock, which fund or
stock is the primary source out of which the payment is to be made.

C.L :- Rajnikant v Kiko, where the testator directed that his land be sold and out of the sale
proceeds Rs 10000 be paid to his wife and Rs 4000 to his daughter. It was held that the
legacies were demonstrative. Where a specific sum of money is directed to be paid out of the
income from specified properties, the legacy is demonstrative and not specific.
 PROBATE OF WILLS
SECTION 276. Petition for probate.-(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 executor named in the will.
(2) In addition to these particulars, the petition shall further state,--
(a) when the application is to the District Judge, that the deceased at the time of his death
had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge;
and
(b) when the application is to a District Delegate, that the deceased at the time of his death
had a fixed place of abode within the jurisdiction of such Delegate.
(3) Where the application is to the District Judge and any portion of the assets likely to come
to the petitioner's hands is situate in another State, the petition shall further state the amount
of such assets in each State and the District Judges within whose jurisdiction such assets are
situate.

SECTION 215. Effection certificate of subsequent probate or letters of administration.-

(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), 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 supersession shall be held good against claims
under the probate or letters of administration.

REVOCATION
SECTION 263. Revocation or annulment for just cause.-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 person to whom the grant was made has wilfully and without reasonable cause
omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII
of this Part, or has exhibited under that Chapter an inventory or account which is untrue in
a material respect.

Illustrations
(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have been cited.
(iii) The will of which probate was obtained was forged or revoked.
(iv) A obtained letters of administration to the estate of B, as his widow, but it has since
transpired that she was never married to him.
(v) A has taken administration to the estate of B as if he had died intestate, but a will has
since been discovered.
(vi) Since probate was granted, a later will has been discovered.
(vii) Since probate was granted, a codicil has been discovered which revokes or adds to the
appointment of executors under the will.
(viii) The person to whom probate was, or letters of administration were, granted has
subsequently become of unsound mind.

Difference between executor and administrator.--

(1) Administrator can only be appointed by a competent court. An executor can only be
appointed by the person making will or codicil.
(2) An executor derives his title from the will and all the property of the testator vests in him
from the date of the testator's death. Section 213 only states that no court shall recognise the
right of an executor unless he has obtained probate of the will under which he claims. But the
effect of this section is that the estate vests in the executor by virtue of the will and from the
date of the death of the testator. An administrator derives his title from the letters of
administration and the property of the deceased does not vest him until the grant. But in order
to prevent injury being done to the estate of the deceased, the legislature has adopted the
doctrine of relation back, that upon the grant being made the title of the administrator relates
back to the time of the death of the intestate as in s. 220.
(3) An executor of a will capable of obtaining probate is a legal representative capable of
instituting a suit from the date of the testator's death within the meaning of Art.17 of the
Limitation Act and, therefore, time begins to run from the date of the testator's death and not
from the date of the grant of probate . But in the case of an administrator, the period does not
run until the grant is made. Section 9 of the Limitation Act provides that when letters of
administration to the estate of a creditor have been granted to his debtor, the running of time
prescribed for a suit to recover the debt shall be suspended while the administration
continues. An administrator is not a legal representative until the grant of letters of
administration is made.
(4) An executor can give a valid discharge and do all acts for the administration of the estate
before the grant to probate. An administrator may not do so. As per s. 221, an act of an
administrator to the prejudice of the estate done before the grant of letters of administration is
not made good by the subsequent grant of administration.
(5) An administrator is required to execute a bond called Administration Bond, before the
grant is made to him.
(6) A period of seven clear days is required to pass after the death of the person leaving a will
or codicil before probate can be granted. But in the case of a person dying intestate, a period
of fourteen days is required to pass after the death of the intestate before letters of
administration can be granted as can be seen in s. 293.
(7) The capacity of executors is joint and several and probate may be granted to one or more
executors but the capacity of administrators is joint and if more than one person is entitled to
letters of administration, in strict law, all the administrators must join. In practice, however,
grant is made to one who has the largest interest and is otherwise fit to be appointed but only
on the renunciation of caveat by others.
 GIFTS

SECTION 122. “Gift” defined.—“Gift” is the transfer of certain existing moveable or

immoveable property made voluntarily and without consideration, by one person, called the
donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made.—Such acceptance must be made during the lifetime of the
donor and while he is still capable of giving. If the donee dies before acceptance, the gift is
void.

PROPERTIES THAT MAY BE GIFTED

(i) Any property over which the person has absolute control
(ii) Father’s power in Dayabhaga school,
(iii) karta’s power to alienate as gift in Mithakshara school- if w/o consent of coparceners
it would be invalid
(iv) No coparcener can gift his undivided interest in the coparcenary property
(v) Father’s right to gift IM property to daughter

SECTION 123. Transfer how effected

For the purpose of making a gift of immovable property, the transfer must be effected by a
registered instrument signed by or on behalf of the donor, and attested by at least two
witnesses.
For the purpose of making a gift of movable property, the transfer may be effected either by a
registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered.

SECTION 124. Gift of existing and future property

A gift comprising both existing and future property is void as to the latter.

SECTION 125. Gift to several of whom one does not accept

A gift of a thing to two or more donees, of whom one does not accept it, is void as to the
interest which he would have taken had he accepted.

SECTION 126. When gift may be suspended or revoked

The donor and donee may agree that on the happening of any specified event which does not
depend on the will of the donor a gift shall be suspended or revoked; but a gift which the
parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly
or in part, as the case may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in
which, if it were a contract, it might be rescinded.
Save as aforesaid, a gift cannot be revoked.
Nothing contained in this section shall be deemed to affect the rights of transferees for
consideration without notice.
Illustrations
(a) A gives a field to B, reserving to himself, with B's assent, the right to take back the field
in case B and his descendants die before A. B dies without descendants in A's lifetime. A
may take back the field.
(b) A gives a lakh of rupees to B, reserving to himself, with B's assent, the right to take back
at pleasure Rs. 10,000 out of the lakh. The gift holds goods as to Rs. 90,000, but is void as to
Rs. 10,000, which continue to belong to A.

Except as provided u/s.126 a gift cannot be revoked 2 grounds:

(i) Happening of an event as agreed by the parties which is not at the will of donor
(ii) Any condition under which a contract can be rescinded

SECTION 127. Onerous gifts

Where a gift in the form of a single transfer to the same person of several things of which one
is, and the others are not burdened by an obligation, the donee can take nothing by the gift
unless he accepts it fully.

Where a gift is in the form of two or more separate and independent transfers to the same
person of several things, the donee is at liberty to accept one of them and refuse the others,
although the former may be beneficial and the latter onerous.

Onerous gift to disqualified person: A donee not competent to contract and accepting
property burdened by any obligation is not bound by his acceptance. But if, after becoming
competent to contract and being aware of the obligation, he retains the property given, he
becomes so bound.

Illustrations
(a) A has shares in X, a prosperous joint stock company, and also shares in Y, a joint stock
company in difficulties. Heavy calls are expected in respect of the shares in Y. A gives B all
his shares in joint stock companies. B refuses to accept the shares in Y. He cannot take the
shares in X.
(b) 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 more than the house can be let for, gives to B
the lease, and also, as a separate and independent transaction, a sum of money. B refuses to
accept the lease. He does not by this refusal forfeit the money.

SECTION 128. Universal donee - Subject to the provisions of section 127, where a gift
consists of the donor's whole property, the donee is personally liable for all the debts due by
and liabilities of the donor at the time of the gift to the extent of the property comprised
therein.

SECTION 129. Saving of donations mortis causa and Mohammedan Law

Nothing in this Chapter relates to gifts of moveable property made in contemplation of death,
or shall be deemed to affect any rule of Mohammedan law.
DONATIO MORIS CAUSA - S.191

SECTION 191. Property transferable by gift made in contemplation of death.—

(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; a bond granted by C to A; a bank-note; a promissory note of the Central
Government endorsed in blank; a bill of exchange endorsed in blank; certain mortgage-deeds.
A dies of the illness during which he delivered these articles. B is entitled to— the watch; the
debt secured by C’s bond; the bank-note; the promissory note of the Central Government; the
bill of exchange; the money secured by the mortgage-deeds.
(ii) A, being ill, and in expectation of death, delivers to B the key of a trunk or the key of a
warehouse in which goods of bulk belonging to A are deposited, with the intention of giving
him the control over the contents of the trunk, or over the deposited goods, and desires him to
keep them in case of A’s death. A dies of the illness during which he delivered these articles.
B is entitled to the trunk and its contents or to A’s goods of bulk in the warehouse.
(iii) A, being ill, and in expectation of death, puts aside certain articles in separate parcel and
marks upon the parcels respectively the names of B and C. The parcels are not delivered
during the life of A. A dies of the illness during which he set aside the parcels. B and C are
not entitled to the contents of the parcels.

WASIYAT
Who is a Mahomedan - Any person who professes the Mahomedan religion, that is
acknowledges (1) that there is but one god and (2) that Mahomed is his prophet, is a
Mohamedan.

MARZ UL MAUT
Gift made during Marz-ul-maut - A gift made by a Mahomedan during marz-ul-maut or
death illness cannot take effect beyond a third of his estate after payment of funeral expenses
and debts, unless the heirs give their consent, after the death of the donor, to the excess taking
effect; nor can such a gift take effect if made in favour of an heir unless the other heirs
consent thereto after the donor's death.
Explanation - A marz ul maut is a malady which induces an apprehension of death in the
person suffering from it and which eventually results in his death.
It is an essential condition of marz-ul-maut, that is , death illness, that the person suffering
from the marz (malady) must be under an apprehension of maut (death),
It becomes marz ul maut if it subsequently reaches such a stage as to render death highly
probable, and does in fact result in death.

when a person creates/makes a gift out of an apprehension of imminent death and dies later, it
is called “Death-Bed Gift”. In other words, if a person makes a gift during illness and dies
later, it is called Death-Bed Gift or Marz-Ul-Maut.

C.L :- Fatima Bibee v Ahmed Baksh, observed :-

" According to the Mahomedan law, three things are necessary to constitute marz ul maut or
death illness. i.e.,
(i) illness
(ii) expectation of fatal issue
(iii) certain physical incapacities, which indicate the degree of the illness.
The second condition cannot be presumed to exist from the existence of the first and third as
the incapacities indicate, with perhaps the single exception of the case in which a man cannot
stand up and say his prayers, are not in fact the signs of death illness."

Conditions necessary for its validity - A gift made during marz-ul-maut is subject to all the
conditions necessary for the validity of a hiba or gift, including delivery of possession by the
donor to the donee.

It is subject to two restrictions:

(i) disqualification of heir; and

(ii) property disposed of should not exceed 1 /3 of the net assets. These restrictions may be
relaxed with the consent of the heirs.

The Death-Bed-Gift is valid only when the donor dies of illness during which the will was
made.

Essentials of Death-Bed Gift:

(i) There must he an apprehension as to immediate death.

(ii) Such fear of death must be subjective
(iii) The illness must not be for a long period to make the patient used to it.
(iv) To effect the transfer of property, by way of gift in anticipation of death.
(v) Mere apprehension of death as to old age is not sufficient.

Transfer of Property– Section 129 deals with Death-Bed Gift or Donatio Mortis Causa.
Indian Succession Act, 1925– Section 191 deals with Death-Bed Gift with regard to movable
property.
Examples of death illness: Pneumonia, Galloping consumption, rapid consumption, etc.

PROPERTY RIGHTS OF CHRISTIAN WOMEN

MARY ROY CASE
INTRODUCTION
Christians in Kerala constitute a heterogeneous community in matters relating to their rights
over property. Originally, these rights were conferred on them through customs, which were
the result of long established usage among them. These customs or usage varied among the
different denominations of the community. They also varied from region to region.
The need for legislation was mainly felt due to the uncertainty as to the practices
determining property rights, which often lead to disputes. The first legislation guiding the
rules of intestate succession, which came into existence, was the Travancore Christian
Succession Act (Regulation II of 1092) in the erstwhile State of Travancore which denied any
share to women. Following this Act, a similar legislation was passed in the erstwhile State of
Cochin called the Cochin Christian Succession Act (Regulation VI of 1097) in 1921 but
considered women as sharers provided they were not given Streedhanam. In the Malabar area
the intestate succession among the Indian Christians were governed by the Indian Succession
Act, 1865, which was later amended by the Indian Succession Act, 1925. So when the Kerala
State was formed under the State Reorganization Act, 1956 by integrating the Travancore-
Cochin State and certain parts of Malabar, three legislations prevailed in the three different
regions - Travancore, Cochin and Malabar - guiding the succession rights of Christians in the
State.
But dispute regarding intestate succession arose even after the existence of the three
legislations indicating the absence of an adequate legislation guiding the rules of intestate
succession and inheritance in the Travancore Cochin and Malabar areas. The dispute mainly
arose regarding the determination of the rights of female heir – daughter, widow or mother-
in contrast to their male counter parts. The legislation which intervened and affected the
Christian succession rights was the Part B States (Laws) Act, 1951. This was introduced for
bringing about uniformity of legislation in the whole of India including the Part B State of
Travancore - Cochin formed in 1949 by merging the former princely states of Travancore and
Cochin. Thereby, the Indian Succession Act, 1925 was automatically extended to the
Travancore - Cochin State through repealing the corresponding laws of intestate succession
which were in force in that State, with effect from 1-4-1951. But even after the introduction
of that legislation, the Travancore Christian Succession Act, 1092 and the Cochin Christian
Succession Act, 1097 were held to prevail in the Travancore and Cochin areas of the Kerala
State through the various decisions of the High Courts. It was in 1986 that the Supreme Court
of India held in Mary Roy v. State of Kerala that the Travancore and Cochin Christian
Succession Regulations stands repealed with the introduction of the Part B States (Laws) Act,
with effect from 1-4-1951, retrospectively.
Thus the Indian Succession Act, 1925 became the uniform law governing intestate
succession of Indian Christians throughout India including the erstwhile States of Travancore
and Cochin, retrospectively from 1-4-1951. The Christians in the Malabar area of Kerala
were already following the Indian Succession Act. Therefore, in effect the ISA, 1925 became
the single law governing the rights of Christians in the matter of inheritance and succession in
Kerala.

The Supreme Court continued its gender just policy in Mary Roy v. State of Kerala. Mary
Roy filed a writ petition due to the insult she suffered about 30 years ago. She was ordered to
vacate her father’s cottage at Ooty where she had been living with her children after the
failure of her marriage with a Bengali Hindu. Since she had no income to push forward she
started a school. When she became financially stable she filed this petition in 1984 before the
Supreme Court. Advocate Indira Jaisingh argued the case as a public interest litigation
challenging sections 24, 28 and 29 of the Travancore Christian Succession Act 1916. Though
the argument was advanced against the violation of equality and nondiscrimination the
Supreme Court relied on a technical ground that after independence the laws enacted by the
Travancore State were not expressly saved and they have been repealed. The Court
pronounced its judgment on an issue not raised in the petition and the Court held that the Part
B States (Laws) Act excluded the operation of the Travancore Act27. It took the view by
virtue of Section 628 of Part B States (Laws) Act 1951 and the inclusion of the 1925 Act in
the schedule to that Act, the Travancore – Cochin Christian Succession Act stood repealed
from the appointed day under the Part B States (Laws) Act 1951. Hence the Court ruled that
the law applicable to intestate succession among Christians of Travancore area of the State of
Kerala is Indian Succession Act 1925. Following this in V.M.Mathew v. Elisa29 and Joseph
v. Mary30 the Kerala High Court held that the Cochin Christian Succession Act 1921 also
stood repealed by Part B State (Laws) Act 1951.

However awareness about this historic judgment has not reached or awakened the Christian
women of Kerala. The main reason is that the women have not been persuaded to fight for
their rights either by men or by the Church or by themselves. Unless they come out of the
grip of the Church and patriarchal community this decision would become part of history.
Abraham Mathew v. Chacko Mary33 is an apt example for the fact that women were not
sufficiently aware of their rights declared by the Supreme Court. In this case the decree
holder was the sister of the revision petitioners before the High Court. The writ was filed for
Rs.5000/- which the father had undertaken to pay to the daughter. At the time of his death he
instructed his sons to pay it but they did not keep the word and they filed this suit. The
contention of the revision petitioners was that their sister had filed this writ under Section 28
of the Travancore Succession Act 1916. Since it stood repealed with effect from 01.04.1951,
the decree passed is a nullity. The Court held that after the coming into force of Part B States
(Laws) Act 1951, the Travancore Christian Succession Act stood repealed and the Kerala
Christians are thereafter governed by Chapter II, Part V of the Indian Succession Act 1925.
The Supreme Court’s verdict in Mary Roy case settled the uncertainty with regard to
the application of succession Law to the Travancore Christians. Following the repeal of the
discriminatory Travancore Succession Act 1916, the Indian Succession Act became the law
governing the intestate succession of Christians all over India. The most significant
achievement of the uniform application of the 1925 is that the daughters are also entitled to
inherit intestate property along with their brothers. Now the women are entitled to claim their
rights on the intestate’s property. This right was denied to them under the Travancore
Christian Succession Act 1916. Joseph v. Mary100 can be cited to show that how women are
utilizing the opportunity to claim their share in the intestate’s property relying on Mary Roy
verdict. In the instant case the petitioner was married in the year 1950. Her father died
intestate in 1944. The case reached the court in 1988 almost immediately after Mary Roy
case. The aftermath of the repeal of the Travancore Succession Act 1916 is that the females
become heirs in the intestate property as per the section 37 of the Indian Succession Act
1925.

The verdict of the Supreme Court in Mary Roy case availed to the Christian daughters the
benefits of the Indian Succession Act 1925. In the case of Satheesh Kumar Raja v. Sherly,
d/o. Chirivathur Sunni @ Mani, the Kerala High Court found any difficulty in allowing the
claims of the daughter for a share in the intestate property. She filed the suit for a declaration
entitling her to plaint A schedule property left behind by the intestate. The lower and
appellate courts also did not deny her the right to claim a share in the A schedule property. In
fact the two brothers and the sister was given the plaint A schedule property. The case clearly
serves as an example that once the law is settled by the Apex court, it is easy for the court to
settle property disputes between brothers and sisters over intestate property. In the instant
case it is pertinent to note that even without going to Court the brothers and sisters executed a
partition deed. This shows that the patriarchal Christian community has started realizing the
inheritance rights of daughters.

The consequences of the continuance of the discriminatory Travancore Christian Succession

Act 1916 for several decades are reflected in Biju Ramesh v. Vijay Kumar. The widow of the
intestate filed a suit for partition of the intestate’s property claiming half share139. The
plaintiff the son of the intestate raised the contention that the mother/widow has no right to
execute mortgage. She has only a right of enjoyment of the ½ of the immovable properties of
the deceased husband. Only the son is entitled to succeed to the estate of his deceased father.
The lower subordinate Court passed a preliminary decree for partition and separate
possession of the 1/3rd share of the widow with mesne profits. The High Court did not find
any difficulty because of the verdict in Mary Roy case. The Court rejected the contention of
the plaintiff that a widow is entitled only to life interest. He had been erroneously relying on
the Travancore Christian Succession Act 1916140 which provided that a widow has only a
life interest in the immovable property of her late husband. Mary Roy in fact challenged this
section along with sections 28 and 29 of the 1916 Act. The court followed the path laid down
by the apex court in Mary Roy case and held that there is no dispute after the decision in
Mary Roy case141 that the plaint schedule properties left behind by Johnstone have devolved
equally to the widow, plaintiff and the daughter142. The Court wiped off the confusion
created by the continuance of the Travancore Christian Succession Act 1916. The provisions
of this repealed succession law took deep roots in the patriarchal community and they are not
still aware of the legal provisions under the Indian Succession Act 1925. If the legislature had
expressly repealed the 1916 Act, this type of notions could not arise.
It is to be noted that after the Supreme Court’s verdict in Mary Roy case, there has been a
steady increase in execution of Wills. This is especially done to circumvent Section 37 of the
Indian Succession Act 1925 which provides that if the father dies intestate, property shall be
distributed equally among the children. It has also been found in some instances fraudulent
Wills are executed even after the death of the testator with the sole purpose of disinheriting
daughters/sisters. Under these circumstances courts are called upon to determine the
genuineness of the Wills. So in Josephine Jerome v. S.Santiago172 the mother is alleged to
have executed a Will excluding daughters on the ground that they are married and well off.

conclusion

The Supreme Court’s verdict in Mary Roy case led to the repeal of the highly discriminatory
Travancore Christian Succession Act 1916. Consequently suits were filed by Christian
women claiming their share in the family property if the father dies intestate. This opened up
an opportunity for Christian women to claim a share in their family property. Hither to they
were entitled only to stridhanam. When women file suits for a share in the intestate property,
the Patriarchal family members raise the contention that they were paid stridhanam at the
time of marriage and hence they are not entitled to share. In the initial stages the courts were
uncertain about the legal position. There was utter confusion even among the courts with
regard to the law applicable to the Travancore Christians. With the extension of Part B States
(Laws) Act 1951, the Indian Succession Act 1925 was extended to Travancore and Cochin
area. However property disputes were settled in ignorance of the law applicable to the
Christians. Madras and Travancore courts gave conflicting decisions. This uncertainty was
set at rest only with the Mary Roy verdict. In the case of suits filed by Christian women
claiming for share the judiciary adopted a liberal gender just approach and delivered
judgments upholding women’s precious right to property. Even the contentions that women
were paid stridhanam were rejected outright by the court and applied strictly the law under
Section 37 of the Indian Succession Act 1925 which provides that the properties of the
intestate shall be distributed equally among the children after deducting 1/3rd share of the
widow. Such strict application of law would certainly curb the practice of dowry in the long
run. If the parents realize that even if the daughters are given stridhanam, they are entitled to
share in the property of the intestate. They may in future try to avoid the double burden of
stridhanam and property.

Since Mary Roy verdict there is a steady increase in writing of wills. The Patriarchal
community found ways and means to circumvent Section 37 of Indian Succession Act 1925.
One of the methods is to write wills. The testator writes wills allotting the shares to sons and
excluding daughters on the ground that they were paid stridhanam at the time of marriage.
The Courts are also burdened with the proof of wills because the brothers used to execute
fraudulent wills even after the death of their father/mother to exclude their sisters. The Courts
also strictly applied the requirements under the Evidence Act for proving wills. If the Wills
are not proved, the court would order for partition of intestate’s property. Hence it can be
rightly concluded that the judiciary delivered gender just decisions based on the law laid
down by the apex court in Mary Roy v. State of Kerala.
The Sociological Impact of the Decision:

1) The awareness of the fact that a son and a daughter should be considered on equal footing
while dealing with intestate succession was made among the members of the community.

2) That the women got an opportunity to claim their rights on the property of their intestate
parents which were denied to them for the past 35 years and their claim had a legal sanctity
after all.

3) That daughters were either given property or cash equivalent to their share and such claims
began to be settled more cautiously by men and supported by documents. Now-a-days,
properties are mostly seen to be purchased in the name of sons in Christian families to escape
from litigations (opinion)

4) The verdict enhanced the potential of gender equality within the community

But certain ill-effects were also produced by this decision of the Supreme Court.

1. More property happened to be disposed of by wills during the life-time of the holder itself.

2. The daughters were compelled to sign documents declaring that their claims had already
been settled.

3. That collusive suits began to be filed by brothers & sisters taking advantage of this
decision, for evading from repayments of huge loan amounts taken by pledging properties as
security, from banks and other Financial Institutions.

4. That Banks and other Financial Institution hesitate to give money by accepting properties
of Christians as security unless it was cleared by a legal opinion that “the Mary Roy decision
is not applicable in this case” by their legal consultants. Circulars were issued by authorities
of such institutions insisting on such legal opinions.