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INDIAN SUCCESSION ACT 1925

[30th September, 1925.]

1. Short title.-This Act may be called the Indian Succession Act,

Definitions. 2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,-- (a) "administrator" means a person appointed by competent authority to administer the estate of a deceased person when there is no executor; (b) "codicil" means an instrument made in relation to a will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the will; 3*[(bb) "District Judge" means the Judge of a principal Civil Court of original jurisdiction;] (c) "executor" means a person to whom the execution of the last will of a deceased person is, by the testator's appointment, confided; 4*[(cc) "India" means the territory of India excluding the State of Jammu and Kashmir;] (d) "Indian Christian" means a native of India who is, or in good faith claims to be, of unmixed Asiatic descent and who professes any form of the Christian religion; (e) "minor" means any person subject to the Indian Majority Act, 1875 (9 of 1875.), who has not attained his majority within the ---------------------------------------------------------------------- 1 The Act has been extended to Berar by the Berar Laws Act, 1941 (4 of 1941) and to Manipur by the Union Territories (Laws) Amendment Act, 1956 (68 of 1956). Extended to and brought into forco in Dadra and Nagar Haveli (w.e.f. 1.7.65) b Reg. 6 of 1963, s. 2 & Sch. I. 2 The words "in the Provinces of India" omitted by the A. O. 1950. 3 Ins. by Act 18 of 1929, s. 2. 4 Ins. by Act 3 of 1951, s. 3 and Sch. ---------------------------------------------------------------------- 54 meaning of that Act, and any other person who has not completed the age of eighteen years; and "minority" means the status of any such person; (f) "probate" means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator; 1*[(g) "State" includes any division of India having a Court of the last resort;] and (h) "will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

State from operation of Act. 3. Power of State Government to exempt any race, sect or tribe in

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

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

(3) Persons exempted under this section or exempted from the operation of any of the provisions of the Indian Succession Act, 1865 2* (10 of 1865.), under section 332 of that Act are in this Act referred to as "exempted persons". PART II OF DOMICILE PART II OF DOMICILE

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

property, respectively. 5. Law regulating succession to deceased person's immoveable and

moveable property, respectively.-(1) Succession to the immoveable property in 3*[India] of a person deceased shall be regulated by the law of 3*[India], wherever such person may have had his domicile at the time of his death. --------------------------------------------------------------------- 1 Subs. by Act 3 of 1951, s. 3 and Sch., for the original cl. 2 Rep. by this Act. 3 Subs. by Act 3 of 1951, s. 3 and Sch., for "the States". --------------------------------------------------------------------- 55

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

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.

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.

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.

9. Continuance of domicile of origin.-The domicile of origin prevails until a new domicile has been acquired.

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 1*[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. --------------------------------------------------------------------- 1 Subs. by Act 3 of 1951, s. 3 and Sch., for "the States". 2 Subs. by the A. O. 1950, for "His Majesty's civil, military, naval or air force service". --------------------------------------------------------------------- 56 Illustrations (i) A, whose domicile of origin is in England, proceeds to 1*[India], where he settles as a barrister or a merchant, intending to reside there during the remainder of his life. His domicile is now in 1*[India]. (ii) A, whose domicile is in England, goes to Austria, and enters the Austrian service, intending to remain in that service. A has acquired a domicile in Austria. (iii) A, whose domicile of origin is in France, comes to reside in 1*[India] under an engagement with the 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 1*[India]. (iv) A, whose domicile is in England, goes to reside in 1*[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 1*[India], however long the residence may last. (v) A, having gone to reside in 1*[India] in the circumstances mentioned in the last preceding illustration, afterwards alters his intention, and takes up his fixed habitation in 1*[India]. A has acquired a domicile in 1*[India]. (vi) A, whose domicile is in the French Settlement of Chandernagore, is compelled by political events to 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 1*[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 1*[India].

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

Government, or as part of his family. 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. --------------------------------------------------------------------- 1 Subs. by Act 3 of 1951, s. 3 and Sch., for "the States". --------------------------------------------------------------------- 57

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

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.

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.

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.

17. Minor's acquisition of new domicile.-Save as hereinbefore otherwise provided in this Part, person cannot, during minority, acquire a new domicile.

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.

domicile elsewhere. 19. Succession to moveable property in India in absence of proof of domicile elsewhere.-If a person dies leaving moveable property in 1*[India], in the absence of proof of any domicile elsewhere, succession to the property is regulated by the law of 1*[India]. PART III MARRIAGE PART III MARRIAGE

20. Interests and powers not acquired nor lost by marriage.-(1) No person shall, by marriage, acquire any interest in the property of the person whom he or she marries or become incapable of doing any act in respect of his or her own property which he or she could have done if unmarried. --------------------------------------------------------------------- 1 Subs. by Act 3 of 1951, s. 3 and Sch., for "the States". --------------------------------------------------------------------- 58

(2) This section-- (a) shall not apply to any marriage contracted before the first day of January, 1866; (b) shall not apply, and shall be deemed never to have applied, to any marriage, one or both of the parties to which professed at the time of the marriage the Hindu, Muhammadan, Buddhist, Sikh or Jaina religion.

India. 21. Effect of marriage between person domiciled and one not domiciled in India.-If a person whose domicile is in 1*[India] marries in 1*[India] a person whose domicile is in 1*[India], neither party acquires by the marriage any rights in respect of any property of the other party not comprised in a settlement made previous to the marriage, which he or she would not acquire thereby if both were domiciled in 1*[India] at the time of the marriage.

22. Settlement of minor's property in contemplation of marriage.-

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

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

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.

24. Kindred or consanguinity.-Kindred or consanguinity is the connection or relation of persons descended from the same stock or common ancestor.

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 --------------------------------------------------------------------- 1 Subs. by Act 3 of 1951, s. 3 and Sch., for "the States". --------------------------------------------------------------------- 59 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.

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.

deceased. 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.

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. 60 (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. PART V INTESTATE SUCCESSION PART V INTESTATE SUCCESSION CHAPTER I Preliminary CHAPTER I Preliminary

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 1*[India] in all cases of intestacy.

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. CHAPTER II Rules in cases of Intestates other than Parsis CHAPTER II Rules in cases of Intestates other than Parsis

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

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. Explanation.--A widow is not entitled to the provision hereby made for her if, by a valid contract made before her marriage, she has been excluded from her distributive share of her husband's estate. --------------------------------------------------------------------- 1 Subs. by Act 3 of 1951, s. 3 and Sch., for "the States". --------------------------------------------------------------------- 61

kindred only, or widow and no kindred. 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) 1*[save as provided by section 33A], if he has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are kindred to him, in the order and according to the rules hereinafter contained; (c) if he has left none who are of kindred to him, the whole of his property shall belong to his widow. 33A. Special provision where intestate has left widow and no lineal descendants. 2*[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, --------------------------------------------------------------------- 1 Ins. by Act 40 of 1926, s. 2. 2 Ins. by s. 3, ibid. --------------------------------------------------------------------- 62 (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.]

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.

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. Distribution where there are lineal descendants

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.

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.

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 63 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.

descendants. 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.

kindred to him, and those through whom the more remote are descended are dead. 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. 64 (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

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.

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

living. 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.

children of any deceased brother or sister, living. 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.

deceased brother or sister living. 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 65 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.

sister, nephew or niece. 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.

mother. 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.

brother, nor sister. 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. 66 (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.

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. CHAPTER III Special Rules for Parsi Intestates CHAPTER III Special Rules for Parsi Intestates

1*[50. General principles relating to intestate succession.-For the purpose of intestate succession among Parsis-- (a) there is no distinction between those who were actually born in the lifetime of a person deceased and those who at the date of his death were only conceived in the womb, but who have been subsequently born alive; (b) a lineal descendant of an intestate who has died in the lifetime of the intestate without leaving a widow or widower or any lineal descendant or 2*[a widow or widower of any lineal descendant] shall not be taken into account in determining the manner in which the property of which the intestate has died intestate shall be divided; and (c) where a 2*[widow or widower of any relative] of an intestate has married again in the lifetime of the intestate, 2*[such widow or widower shall not be entitled to receive any share of the property of which the intestate has died intestate, and 2*[such widow or widower] shall be deemed not to be existing at the intestate's death.

parents. 3*["51. Division of intestate's property among widow, widower,

children and parents.-(1) Subject to the provisions of sub-section

(2), the property of which a Parsi dies intestate shall be divided,-- (a) where such Parsi dies leaving a widow or widower and children, among the widow or widower, and children so that the widow or widower and each child receive equal shares; (b) where such Parsi dies leaving children, but no widow or widower, among the children in equal shares.

(2) Where a Parsi dies leaving one or both parents in addition to children or widow or widower and children, the property of which such Parsi dies intestate shall be so divided that the parent or each of the parents shall receive a share equal to half the share of each child."]. --------------------------------------------------------------------- 1 Subs. by Act 17 of 1939, s. 2, for the original ss. 50-56 (w.e.f. 12-6-1939). 2 Subs. by Act 51 of 1991, s. 2. 3 Subs. by s. 3, ibid. --------------------------------------------------------------------- 67

descendants. 53. Division of share of predeceased child of intestate leaving lineal descendants.-In all cases where a Parsi dies leaving any lineal descendant, if any child of such intestate has died in the lifetime of the intestate, the division of the share of the property of which the intestate has died intestate which such child would have taken if living at the intestate's death shall be in accordance with the following rules, namely:-- (a) If such deceased child was a son, his widow and children shall take shares in accordance with the provisions of this Chapter as if he had died immediately after the intestate's death: Provided that where such deceased son has left a widow or a widow of a lineal descendant but no lineal descendant, the residue of his share after such distribution has been made shall be divided in accordance with the provisions of this Chapter as property of which the intestate has died intestate, and in making the division of such residue the said deceased son of the intestate shall not be taken into account. (b) If such deceased child was a daughter, her share shall be divided equally among her children. (c) If any child of such deceased child has also died during the lifetime of the intestate, the share which he or she would have taken if living at the intestate's death, shall be divided in like manner in accordance with clause (a) or clause (b) as the case may be. 68 (d) Where a remoter lineal descendant of the intestate has died during the lifetime of the intestate, the provisions of clause (c) shall apply mutatis mutandis to the division of any share to which he or she would have been entitled if living at the intestate's death by reason of the pre decease of all the intestate's lineal descendants directly between him or her and the intestate.

leaves a widow or widower or a widow or widower of any lineal descendant. 1*["54. Division of property where intestate leaves no lineal descendant out leaves a widow or widower or widow or widower of any lineal descendant.-Where a Parsi dies without leaving any lineal descendant but leaving a widow or widower or a widow or widower of a lineal descendant, the property of which the intestate dies intestate shall be divided in accordance with the following rules, namely:-- (a) if the intestate leaves a widow or widower but no widow or widower of a lineal descendant, the widow or widower shall take half the said property; (b) if the intestate leaves a widow or widower and also a widow or widower of any lineal descendant, his widow or her widower shall receive one-third of the said property and the widow or widower of any lineal descendant shall receive another one-third or if there is more than one such widow or widower of lineal descendants, the last mentioned one-third shall be divided equally among them; (c) if the intestate leaves no widow or widower, but one widow or widower of a lineal descendant, such widow or widower of the lineal descendant shall receive one-third of the said property or, if the intestate leaves no widow or widower but more than one widow or widower of lineal descendants, two-thirds of the said property shall be divided among such widows or widower of the lineal descendants in equal shares; (d) the residue after the division specified in clause (a) or clause (b) or clause (c) has been made shall be distributed among the relatives of the intestate in the order specified in Part I of Schedule II; and the next-of-kin standing first in Part I of that Schedule shall be preferred to those standing second, the second, the second to the third and so on in succession, provided that the property shall be so distributed that each male and female standing in the same degree of propinquity shall receive equal shares; (e) if there are no relatives entitled to the residue under clause (d), the whole of the residue shall be distributed in proportion to the shares specified among the persons entitled to receive shares under this section."] ---------------------------------------------------------------------- 1 Subs. by Act 51 of 1991, s. 4. ---------------------------------------------------------------------- 69

nor a widow or widower nor a widow of any lineal descendant. 55. Division of property where intestate leaves neither lineal descendants nor a widow or widower nor a widow of any lineal descendant.-When a Parsi dies leaving neither lineal descendants nor a widow or widower nor 1*["a widow or widower of any lineal descendant"] his or her next-of-kin, in the order set forth in Part II of Schedule II, shall be entitled to succeed to the whole of the property of which he or she dies intestate. The next-of-kin standing first in Part II of that Schedule shall be preferred to those standing second, the second to the third, and so on in succession, provided that the property shall be so distributed that 1*["each male and female standing in the same degree of propinquity shall receive equal shares"].

under the other provisions of this Chapter. 56. Division of property where there is no relative entitled to succeed under the other provisions of this Chapter.-Where there is no relative entitled to succeed under the other provisions of this Chapter to the property of which a Parsi has died intestate, the said property shall be divided equally among those of the intestate's relatives who are in the nearest degree of kindred to him.] PART VI TESTAMENTARY SUCCESSION PART VI TESTAMENTARY SUCCESSION CHAPTER I Introductory CHAPTER I Introductory

Hindus, etc. 2*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; 3*[and --------------------------------------------------------------------- 1 Subs. by Act 51 of 1991, s. 5.

2 S. 57 was re-numbered as sub-section (1) of that section and sub-

section (2) added by Act 37 of 1926, s. 2; subsequently

sub-section (2) was omitted and sub-section (1) was re-numbered as s. 57 by Act 18 of 1929, s. 3. 3 The word "and" and cl. (c) added by Act 18 of 1929, s. 3. --------------------------------------------------------------------- 70 (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.

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,

the time being in force the provisions of this Part shall constitute the law of 1*[India] applicable to all cases of testamentary succession. CHAPTER II Of Wills and Codicils CHAPTER II Of 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. Explanation 1.--A married woman may dispose by will of any property which she could alienate by her own act during her life. Explanation 2.--Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it. Explanation 3.--A person who is ordinarily insane may make a will during interval in which he is of sound mind. Explanation 4.--No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing. Illustrations (i) A can perceive what is going on in his immediate neighbourhood, and can answer familiar questions, but has not a competent understanding as to the nature of his property, or the persons who are of kindred to him, or in whose favour it would be proper that he should make his will. A cannot make a valid will. (ii) A executes an instrument purporting to be his will, but he does not understand the nature of the instrument, nor the effect of its provisions. This instrument is not a valid will. --------------------------------------------------------------------- 1 Subs. by Act 3 of 1951, s. 3 and Sch., for "the States". --------------------------------------------------------------------- 71 (iii) A, being very feeble and debilitated, but capable of exercising a judgment as to the proper mode of disposing of his property, makes a will. This is a valid will.

60. Testamentary guardian.-A father, whatever his age may be, may by will appoint a guardian or guardians for his child during minority.

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. Illustrations (i) A, falsely and knowingly represents to the testator, that the testator's only child is dead, or that he has done some undutiful act and thereby induces the testator to make a will in his, A's favour; such will has been obtained by fraud, and is invalid. (ii) A, by fraud and deception, prevails upon the testator to bequeath a legacy to him. The bequest is void. (iii) A, being a prisoner by lawful authority, makes his will. The will is not invalid by reason of the imprisonment. (iv) A threatens to shoot B, or to burn his 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. (v) 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. (vi) A, being in so feeble a state of health as to be unable to resist importunity, is pressed by B to make a will of a certain purport and does so merely to purchase peace and in submission to B. The will is invalid. (vii) A being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition makes his will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B. (viii) 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.

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. 72 CHAPTER III Of the Execution of unprivileged Wills CHAPTER III Of the Execution of unprivileged Wills

63. Execution of unprivileged wills.-Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1*[or an airman so employed or engaged,] or a mariner at sea, shall execute his will according to the following rules:-- (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the 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.

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. CHAPTER IV Of privileged Wills CHAPTER IV Of privileged Wills

65. Privileged wills.-Any soldier being employed in an expedition or engaged in actual warfare, 1*[or an airman so employed or engaged,] or any mariner being at sea, may, if he has completed the age of eighteen years, dispose of his property by a will made in the manner provided in section 66. Such wills are called privileged wills. --------------------------------------------------------------------- 1 Ins. by Act 10 of 1927, s. 2 and Sch. I. --------------------------------------------------------------------- 73 Illustrations (i) A, a medical officer attached to a regiment is actually employed in an expedition. He is a soldier actually employed in an expedition, and can make a privileged will. (ii) A is at sea in a merchant-ship, of which he is the purser. He is a mariner, and, being at sea, can make a privileged will. (iii) A, a soldier serving 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.

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. --------------------------------------------------------------------- 1 Ins. by Act 10 of 1927, s. 2 and Sch. I. --------------------------------------------------------------------- 74 (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. CHAPTER V Of the Attestation, Revocation, Alteration and Revival of Wills CHAPTER V Of the Attestation, Revocation, Alteration and Revival of Wills

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.

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.

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. --------------------------------------------------------------------- 1 Ins. by Act 10 of 1927, s. 2 and Sch. I. 75

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

will. 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.

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.

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 76 than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same.

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

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.

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 conduce 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 grandchild, or to his cousin, Mary. A Court may make inquiry in order to ascertain to what person the description in the will applies. (ii) A, by his will, leaves to B "my estate called Black Acre". It may be necessary to take evidence in order 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.

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. 77 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 them 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.

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.

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. 78

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.

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.

deficiency. 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. 79 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.

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".

wider than usual. 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 marsh- lands in L. The general words, "all my marsh-lands in L," are restricted by the gift to A. A takes the whole of the farm in the occupation of B, including that portion of the farm which consists of marsh-lands in L. 80 (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.

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.

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.

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.

87. Testator's intention to be effectuated as far as possible.- The intention of the testator shall not be set aside because it cannot take effect to the full extent, but effect is to be given to it as far as possible. 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.

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. Illustrations (i) The testator by the first clause of his will leaves his estate of Ramnagar "to A," and by the last clause of his will leaves it "to B and not to A". B will have it. (ii) If a man, at the commencement of his will gives his house to A, and at the close of it directs that his house shall be sold and the proceeds invested for the benefit of B, the latter disposition will prevail. 81

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.

testator's death. 90. Words describing subject refer to property answering description at testator's death.-The description contained in a will will of property, the subject of gift, shall, unless a contrary intention appears by the will, be deemed to refer to and comprise the property answering that description at the death of the testator.

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

92. Implied gift to objects of power in default of appointment.- Where property is bequeathed to or for the benefit of certain objects as a specified person may appoint or for the benefit of certain objects in such proportions as a specified person may appoint, and the will does not provide for the event of no appointment being made; if the power given by the will is not exercised, the property belongs to all the objects of the power in equal shares. Illustration A, by his will, bequeaths a fund to his wife, for her life, and directs that at her death it shall be divided among his children in such proportions as she shall appoint. The widow dies without having made any appointment. The fund will be divided equally among the children.

terms. 93. Bequest to "heirs," etc., of particular person without qualifying terms.-Where a bequest is made to the "heirs" or "right heirs" or "relations" or "nearest relations" or "family" cr "kindred" or "nearest of kin" or "next-of-kin" of a particular person without any qualifying terms, and the class so designated forms the direct and independent object of the bequest, the property bequeathed shall be 82 distributed as if it had belonged to such person and he had died intestate in respect of it, leaving assets for the payment of his debts independently of such property. Illustrations (i) A leaves his property "to my own nearest relations". The property goes to those who would be entitled to it if A had died intestate, leaving assets for the payment of his debts independently of such property. (ii) A bequeaths 10,000 rupees "to B for his life, and, after the death of B, to my own right heirs". The legacy after B's death belongs to those who would be entitled to it if it had formed part of A's unbequeathed property. (iii) A leaves his property to B; but if B dies before him, to B's next-of-kin; B dies before A; the property devolves as if it had belonged to B, and he had died intestate, leaving assets for the payment of his debts independently of such property. (iv) A leaves 10,000 rupees "to B for his life, and after his decease to the heirs of C". The legacy goes as if it had belonged to C, and he had died intestate, leaving assets for the payment of his debts independently of the legacy.

94. Bequest to "representatives," etc., of particular person.- Where a bequest is made to the "representatives" or "legal representatives" or "personal representatives" or "executors or administrators" of a particular person, and the class so designated forms the direct and independent object of the bequest, the property bequeathed shall be distributed as if it had belonged to such person and he had died intestate in respect of it. Illustration A bequest is made to the "legal representatives" of A. A has died intestate and insolvent. B is his administrator. B is entitled to receive the legacy, and will apply it in the first place to the discharge of such part of A's debts as may remain unpaid: if there be any surplus B will pay it to those persons who at A's death would have been entitled to receive any property of A's which might remain after payment of his debts, or to the representatives of such persons.

95. Bequest without words of limitation.-Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the will that only a restricted interest was intended for him.

96. Bequest in alternative.-Where a property is bequeathed to a person with a bequest in the alternative to another person or to a class of persons, then, if a contrary intention does not appear by the will, the legatee first named shall be entitled to the legacy if he is alive at the time when it takes effect; but if he is then dead, the person or class of persons named in the second branch of the alternative shall take the legacy. 83 Illustrations (i) A bequest is made to A or to B. A survives the testator. B takes nothing. (ii) A bequest is made to A or to B. A dies after the date of the will, and before the testator. The legacy goes to B. (iii) A bequest is made to A or to B. A is dead at the date of the will. The legacy goes to B. (iv) Property is bequeathed to A or his heirs. A survives the testator. A takes the property absolutely. (v) Property is bequeathed to A or his nearest of kin. A dies in the lifetime of the testator. Upon the death of the testator, the bequest to A's nearest of kin takes effect. (vi) Property is bequeathed to A for life, and after his death to B or his heirs. A and B survive the testator. B dies in A's lifetime. Upon A's death the bequest to the heirs of B takes effect. (vii) Property is bequeathed to A for life, and after his death to B or his heirs. B dies in the testator's lifetime. A survives the testator. Upon A's death the bequest to the heirs of B takes effect.

97. Effect of words describing a class added to bequest to person.-Where property is bequeathed to a person, and words are added which describe a class of persons but do not denote them as direct objects of a distinct and independent gift, such person is entitled to the whole interest of the testator therein, unless a contrary intention appears by the will. Illustrations (i) A bequest is made-- to A and his children, to A and his children by his present wife, to A and his heirs, to A and the heirs of his body, to A and the heirs male of his body, to A and the heirs female of his body, to A and his issue, to A and his family, to A and his descendants, to A and his representatives, tp A and his personal representatives, to A, his executors and administrators. In each of these cases, A takes the whole interest which the testator had in the property. (ii) A bequest is made to A and his brothers. A and his brothers are jointly entitled to the legacy. (iii) A bequest is made to A for life and after his death to his issue. At the death of A the property belongs in equal shares to all persons who then answer the description of issue of A. 84

98. Bequest to class of persons under general description only.- Where a bequest is made to a class of persons under a general description only, no one to whom the words of the description are not in their ordinary sense applicable shall take the legacy.

99. Construction of terms.-In a will-- (a) the word "children" applies only to lineal descendants in the first degree of the person whose "children" are spoken of; (b) the word "grandchildren" applies only to lineal descendants in the second degree of the person whose "grandchildren" are spoken of; (c) the words "nephews" and "nieces" apply only to children of brothers or sisters; (d) the words "cousins", or "first cousins", or "cousins german," apply only to children of brothers or of sisters of the father or mother of the person whose "cousins," or "first cousins," or "cousins-german," are spoken of; (e) the words "first cousins once removed" apply only to children of cousins-german, or to cousins-german of a parent of the person whose "first cousins once removed" are spoken of; (f) the words "second cousins" apply only to grandchildren of brothers or of sisters of the grandfather or grandmother of the person whose "second cousins" are spoken of; (g) the words "issue" and "descendants" apply to all lineal descendants whatever of the person whose "issue" or "descendants" are spoken of; (h) words expressive of collateral relationship apply alike to relatives of full and of half blood; and (i) all words expressive of relationship apply to a child in the womb who is afterwards born alive.

failing such relatives reputed legitimate. 100. Words expressing relationship denote only legitimate relatives or failing such relatives reputed legitimate.-In the absence of any intimation to the contrary in a will, the word "child," the word "son," the word "daughter," or any word which expresses relationship, is to be understood as denoting only a legitimate relative, or, where there is no such legitimate relative, a person who has acquired, at the date of the will, the reputation of being such relative. 85 Illustrations (i) A having three children, B, C and D, of whom B and C are legitimate and D is illegitimate, leaves his property to be equally divided among "my children". The property belongs to B and C in equal shares, to the exclusion of D. (ii) A, having a niece of illegitimate birth, who has acquired the reputation of being his niece, and having no legitimate niece, bequeaths a sum of money to his niece. The illegitimate niece is entitled to the legacy. (iii) A, having in his will enumerated his children, and named as one of them B, who is illegitimate, leaves a legacy to "my said children". B will take a share in the legacy along with the legitimate children. (iv) A leaves a legacy to "the children of B". B is dead and has left none but illegitimate children. All those who had at the date of the will acquired the reputation of being the children of B are objects of the gift. (v) A bequeaths a legacy to "the children of B". B never had any legitimate child. C and D had, at the date of the will, acquired the reputation of being children of B. After the date of the will and before the death of the testator, E and F were born, and acquired the reputation of being children of B. Only C and D are objects of the bequest. (vi) A makes a bequest in favour of his child by a certain woman, not his wife. B had acquired at the date of the will the reputation of being the child of A by the woman designated. B takes the legacy. (vii) A makes a bequest in favour of his child to be born of a woman who never becomes his wife. The bequest is void. (viii) A makes a bequest in favour of the child of which a certain woman, not married to him, is pregnant. The bequest is void.

person. 101. Rules of construction where will purports to make two bequests to same person.-Where a will purports to make two bequests to the same person, and a question arises whether the testator intended to make the second bequest instead of or in addition to the first; if there is nothing in the will to show what he intended, the following rules shall have effect in determining the construction to be put upon the will:-- (a) If the same specific thing is bequeathed twice to the same legatee in the same will or in the will and again in the codicil, he is entitled to receive that specific thing only. (b) Where one and the same will or one and the same codicil purports to make, in two places, a bequest to the same person of the same quantity or amount of anything, he shall be entitled to one such legacy only. (c) Where two legacies of unequal amount are given to the same person in the same will, or in the same codicil, the legatee is entitled to both. (d) Where two legacies, whether equal or unequal in amount, are given to the same legatee, one by a will and the 86 other by a codicil, or each by a different codicil, the legatee is entitled to both legacies. Explanation.--In clauses (a) to (d) of this section, the word "will" does not include a codicil. Illustrations (i) A, having ten shares, and no more, in the Imperial Bank of India, made his will, which contains near its commencement the words "I bequeath my ten shares in the Imperial Bank of India to B". After other bequests, the will concludes with the words "and I bequeath my ten shares in the Imperial Bank of India to B". B is entitled simply to receive A's ten shares in the Imperial Bank of India. (ii) A, having one diamond ring, which was given him by B, bequeaths to C the diamond ring which was given by B. A afterwards made a codicil to his will, and thereby, after giving other leagacies, he bequeathed to C the diamond ring which was given him by B. C can claim nothing except the diamond ring which was given to A by B. (iii) A, by his will, bequeaths to B the sum of 5,000 rupees and afterwards in the same will repeats the bequest in the same words. B is entitled to one legacy of 5,000 rupees only. (iv) A, by his will, bequeaths to B the sum of 5,000 rupees and afterwards in the same will bequeaths to B the sum of 6,000 rupees. B is entitled to receive 11,000 rupees. (v) A, by his will, bequeaths to B 5,000 rupees and by a codicil to the will he bequeaths to him 5,000 rupees. B is entitled to receive 10,000 rupees. (vi) A, by one codicil to his will, bequeaths to B 5,000 rupees and by another codicil bequeaths to him, 6,000 rupees. B is entitled to receive 11,000 rupees. (vii) A, by his will, bequeaths "500 rupees to B because she was my nurse", and in another part of the will bequeaths 500 rupees to B "because she went to England with my children". B is entitled to receive 1,000 rupees. (viii) A, by his will, bequeaths to B the sum of 5,000 rupees and also, in another part of the will, an annuity of 400 rupees. B is entitled to both legacies. (ix) A, by his will, bequeaths to B the sum of 5,000 rupees and also bequeaths to him the sum of 5,000 rupees if he shall attain the age of 18. B is entitled absolutely to one sum of 5,000 rupees, and takes a contingent interest in another sum of 5,000 rupees.

102. Constitution of residuary legatee.-A residuary legatee may be constituted by any words that show an intention on the part of the testator that the person designated shall take the surplus or residue of his property. Illustrations (i) A makes her will, consisting of several testamentary papers, in one of which are contained the following words :--"I think there will be something left, after all funeral expenses, etc., to give to B, now at school, towards equipping him to any profession he may hereafter be appointed to." B is constituted residuary legatee. 87 (ii) A makes his will, with the following passage at the end of it:--"I believe there will be found sufficient in my banker's hands to defray and discharge my debts, which I hereby, desire B to do, and keep the residue for her own use and pleasure." B is constituted the residuary legatee. (iii) A bequeaths all his property to B, except certain stocks and funds, which he bequeaths to C. B is the residuary legatee.

103. Property to which residuary legatee entitled.-Under a residuary bequest, the legatee is entitled to all property belonging to the testator at the time of his death, of which he has not made any other testamentary disposition which is capable of taking effect. Illustration A by his will bequeaths certain legacies, of which one is void under section 118, and another lapses by the death of the legatee. He bequeaths the residue of his property to B. After the date of his will A purchases a zamindari, which belongs to him at the time of his death. B is entitled to the two legacies and the zamindari as part of the residue.

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

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

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

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.

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.

on his death in testator's lifetime. 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. 89

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.

111. Survivorship in case of bequest to described class.-Where a bequest is made simply to a described class of persons, the thing bequeathed shall go only to such as are alive at the testator's death. Exception.--If property is bequeathed to a class of persons described as standing in a particular degree of kindred to a specified individual, but their possession of it is deferred until a time later than the death of the testator by reason of a prior bequest or otherwise, the property shall at that time go to such of them as are then alive, and to the representatives of any of them who have died since the death of the testator. Illustrations (i) A bequeaths 1,000 rupees to "the children of B" without saying when it is to be distributed among them. B had died previous to the date of the will, leaving three children, C, D and E. E died after the date of the will, but before the death of A. C and D survive A. The legacy will belong to C and D, to the exclusion of the representatives of E. (ii) A lease for years of a house, was bequeathed to A for his life, and after his decease to the children of B. At the death of the testator, B had two children living, C and D, and he never had any other child. Afterwards, during the lifetime of A, C died, leaving E, his executor. D has survived A, D and E are jointly entitled to so much of the leasehold term as remains unexpired. (iii) A sum of money was bequeathed to A for her life, and after her decease to the children of B. At the death of the testator, B had two children living, C and D, and, after that event, two children, E and F, were born to B. C and E died in the lifetime of A, C having made a will, E having made no will. A has died, leaving D and F surviving her. The legacy is to be divided into four equal parts, one of which is to be paid to the executor of C, one to D, one to the administrator of E and one to F. (iv) A bequeaths one-third of his lands to B for his life, and after his decease to the sisters of B. At the death of the testator, B had two sisters living, C and D, and after that event another sister E was born. C died during the life of B, D and E have survived B. One- third of A's land belong to D, E and the representatives of C, in equal shares. (v) A bequeaths 1,000 rupees to B for life and after his death equally among the children of C. Up to the death of B, C had not had any child. The bequest after the death of B is void. (vi) A bequeaths 1,000 rupees to "all the children born or to be born" of B to be divided among them at the death of C. At the death of the testator, B has two children living, D and E. After the death of the testator, but in the lifetime of C, two other children, F and G, are born to B. After the death of C, another child is born to B. The legacy belongs to D, E, F and G, to the exclusion of the after-born child of B. 90 (vii) A bequeaths a fund to the children of B, to be divided among them when the eldest shall attain majority. At the testator's death, B had one child living, named C. He afterwards had two other children, named D and E. E died, but C and D were living when C attained majority. The fund belongs to C, D and the representatives of E, to the exclusion of any child who may be born to B after C's attaining majority. CHAPTER VII Of void Bequests CHAPTER VII Of void Bequests

at testator's death. 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.

prior bequest. 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. 91 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.

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 92 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.

and 114. 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). 2*[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.]

3*[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 --------------------------------------------------------------------- 1 Subs. by Act 21 of 1929, s. 14, for "wholly void". 2 Subs. by s. 14, ibid., for certain original words. 3 Subs. by s. 14, ibid., for the original section. --------------------------------------------------------------------- 93 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.

1*[117. Effect of direction for accumulation.-(1) Where the terms of a will direct that the income arising from any property shall be accumulated either wholly or in part during any period longer than a period of eighteen years from the death of the testator, such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the aforesaid period, and at the end of such period of eighteen years the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.

(2) This section shall not affect any direction for accumulation for the purpose of-- (i) the payment of the debts of the testator or any other person taking any interest under the will, or (ii) the provision of portions for children or remoter issue of the testator or of any other person taking any interest under the will, or (iii) the preservation or maintenance of any property bequeathed; and such direction may be made accordingly.]

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: 2*["Provided that nothing in this section shall apply to a Parsi."] --------------------------------------------------------------------- 1 Subs. by Act 21 of 1929, s. 14, for the original section. 2 Added by Act 51 of 1991, s. 6. --------------------------------------------------------------------- 94 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. CHAPTER VIII Of the vesting of Legacies CHAPTER VIII Of the vesting of Legacies

119. Date of vesting of legacy when payment or possession postponed.-Where by the terms of a bequest the legatee is not entitled to immediate possession of the thing bequeathed, a right to receive it at the proper time shall, unless a contrary intention appears by the will, become vested in the legatee on the testator's death, and shall pass to the legatee's representatives if he dies before that time and without having received the legacy, and in such cases the legacy is from the testator's death said to be vested in interest. Explanation.--An intention that a legacy to any person shall not become vested in interest in him is not to be inferred merely from a provision whereby the payment or possession of the thing bequeathed is postponed, or whereby a prior interest therein is bequeathed to some other person, or whereby the income arising from the fund bequeathed is directed to be accumulated until the time of payment arrives, or from a provision that, if a particular event shall happen, the legacy shall go over to another person. Illustrations (i) A bequeaths to B 100 rupees, to be paid to him at the death of C. On A's death the legacy becomes vested in interest in B, and if he dies before C, his representatives are entitled to the legacy. (ii) A bequeaths to B 100 rupees, to be paid to him upon his attaining the age of 18. On A's death the legacy becomes vested in interest in B. 95 (iii) A fund is bequeathed to A for life, and after his death to B. On the testator's death the legacy to B becomes vested in interest in B. (iv) A fund is bequeathed to A until B attains the age of 18 and then to B. The legacy to B is vested in interest from the testator's death. (v) A bequeaths the whole of his property to B upon trust to pay certain debts out of the income, and then to make over the fund to C. At A's death the gift to C becomes vested in interest in him. (vi) A fund is bequeathed to A, B and C in equal shares to be paid to them on their attaining the age of 18, respectively, with a proviso that, if all of them die under the age of 18, the legacy shall devolve upon D. On the death of the testator, the shares vested in interest in A, B and C, subject to be divested in case A, B and C shall all die under 18, and, upon the death of any of them (except the last survivor) under the age of 18, his vested interest passes, so subject, to his representatives.

120. Date of vesting when legacy contingent upon specified

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

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

(3) In either case, until the condition has been fulfilled, the interest of the legatee is called contingent. Exception.--Where a fund is bequeathed to any person upon his attaining a particular age, and the will also gives to him absolutely the income to arise from the fund before he reaches that age, or directs the income, or so much of it as may be necessary, to be applied for his benefit, the bequest of the fund is not contingent. Illustrations (i) A legacy is bequeathed to D in case A, B and C shall all die under the age of 18. D has a contingent interest in the legacy until A, B and C all die under 18, or one of them attains that age. (ii) A sum of money is bequeathed to A "in case he shall attain the age of 18," or "when he shall attain the age of 18". A's interest in the legacy is contingent until the condition is fulfilled by his attaining that age. (iii) An estate is bequeathed to A for life, and after his death to B if B shall then be living; but if B shall not be then living to C. A, B and C survive the testator. B and C each take a contingent interest in the estate until the event which is to vest it in one or in the other has happened. (iv) An estate is bequeathed as in the case last supposed. B dies in the lifetime of A and C. Upon the death of B, C acquires a vested right to obtain possession of the estate upon A's death. (v) A legacy is bequeathed to A when she shall attain the age of 18, or shall marry under that age with the consent of B, with a proviso that, if she neither attains 18 nor marries under that age with B's consent, the legacy shall go to C. A and C each take a contingent interest in the legacy. A attains the age of 18. A becomes absolutely entitled to the legacy although she may have married under 18 without the consent of B. 96 (vi) An estate is bequeathed to A until he shall marry and after that event to B. B's interest in the bequest is contingent until the condition is fulfilled by A's marrying. (vii) An estate is bequeathed to A until he shall take advantage of any law for the relief of insolvent debtors, and after that event to B. B's interest in the bequest is contingent until A takes advantage of such a law. (viii) An estate is bequeathed to A if he shall pay 500 rupees to B. A's interest in the bequest is contingent until he has paid 500 rupees to B. (ix) A leaves his farm of Sultanpur Khurd to B, if B shall convey his own farm of Sultanpur Buzurg to C. B's interest in the bequest is contingent until he has conveyed the latter farm to C. (x) A fund is bequeathed to A if B shall not marry C within five years after the testator's death. A's interest in the legacy is contingent until the condition is fulfilled by the expiration of the five years without B's having married C, or by the occurrence within that period of an event which makes the fulfilment of the condition impossible. (xi) A fund is bequeathed to A if B shall not make any provision for him by will. The legacy is contingent until B's death. (xii) A bequeaths of B 500 rupees a year upon his attaining the age of 18, and directs that the interest, or a competent part thereof, shall be applied for his benefit until he reaches that age. The legacy is vested. (xiii) A bequeaths to B 500 rupees when he shall attain the age of 18 and directs that a certain sum, out of another fund, shall be applied for his maintenance until he arrives at that age. The legacy is contingent.

have attained particular age. 121. Vesting of interest in bequest to such members of a class as shall have attained particular age.-Where a bequest is made only to such members of a class as shall have attained a particular age, a person who has not attained that age cannot have a vested interest in the legacy. Illustration A fund is bequeathed to such of the children of A as shall attain the age of 18, with a direction that, while any child of A shall be under the age of 18, the income of the share, to which it may be presumed he will be eventually entitled, shall be applied for his maintenance and education. No child of A who is under the age of 18 has a vested interest in the bequest. CHAPTER IX Of Onerous Bequests CHAPTER IX Of Onerous Bequests

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). 97

accepted, and other refused. 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. CHAPTER X Of Contingent Bequests CHAPTER X Of Contingent Bequests

mentioned for its occurrence. 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".

period not specified. 125. Bequest to such of certain persons as shall be surviving at some period not specified.-Where a bequest is made to such of certain persons as shall be surviving at some period, but the exact period is not specified, the legacy shall go to such of them as are alive at the time of payment or distribution, unless a contrary intention appears by the will. Illustrations (i) Property is bequeathed to A and B to be equally divided between them, or to the survivor of them. If both A and B survive the testator, the legacy is equally divided between them. If A dies before the testator, and B survives the testator, it goes to B. 98 (ii) Property is bequeathed to A for life, and, after his death, to B and C, to be equally divided between them, or to the survivor of them. B dies during the life of A; C survives A. At A's death the legacy goes to C. (iii) Property is bequeathed to A for life, and after his death to B and C, or the survivor, with a direction that, if B should not survive the testator, his children are to stand in his place. C dies during the life of the testator; B survives the testator, but dies in the lifetime of A. The legacy goes to the representative of B. (iv) Property is bequeathed to A for life, and, after his death, to B and C, with a direction that, in case either of them dies in the lifetime of A, the whole shall go to the survivor, B dies in the lifetime of A. Afterwards C dies in the lifetime of A. The legacy goes to the representative of C. CHAPTER XI Of Conditional Bequests CHAPTER XI Of Conditional Bequests

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.

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.

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. 99 (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.

129. Bequest to A and on failure of prior bequest to B.-Where there is a bequest to one person and a bequest of the same thing to another, if the prior bequest shall fail, the second bequest shall take effect upon the failure of the prior bequest although the failure may not have occurred in the manner contemplated by the testator. Illustrations (i) A bequeaths a sum of money to his own children surviving him, and, if they all die under 18, to B. A dies without having ever had a child. The bequest to B takes effect. (ii) A bequeaths a sum of money to B, on condition that he shall execute a certain document within three months after A's death, and, if he should neglect to do so, to C. B dies in the testator's life- time. The bequest to C takes effect.

130. When second bequest not to take effect on failure of first.- Where the will shows an intention that the second bequest shall take effect only in the event of the first bequest failing in a particular manner, the second bequest shall not take effect, unless the prior bequest fails in that particular manner. Illustration A makes a bequest to his wife, but in case she should die in his lifetime, bequeaths to B that which he had bequeathed to her. A and his wife perish together, under circumstances which make it impossible to prove that she died before him, the bequest to B does not take effect. 100

uncertain event. 131. Bequest over, conditional upon happening or not happening of

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

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

(i) A sum of money is bequeathed to A, to be paid to him at the age of 18, and if he shall die before he attains that age, to B. A takes a vested interest in the legacy, subject to be divested and to go to B in case A dies under 18. (ii) An estate is bequeathed to A with a proviso that if A shall dispute the competency of the testator to make a will, the estate goes to B. (iii) A sum of money is bequeathed to A for life, and, after his death, to B, but if B shall then be dead leaving a son, such son is to stand in the place of B. B takes a vested interest in the legacy, subject to be divested if he dies leaving a son in A's lifetime. (iv) A sum of money is bequeathed to A and B, and if either should die during the life of C, then to the survivor living at the death of C. A and B die before C. The gift over cannot take effect, but the representative of A takes one-half of the money, and the representative of B takes the other half. (v) A bequeaths to B the interest of a fund for life, and directs the fund to be divided at her death equally among her three children, or such of them as shall be living at her death. All the children of B die in B's lifetime. The bequest over cannot take effect, but the interests of the children pass to their representatives.

132. Condition must be strictly fulfilled.-An ulterior bequest of the kind contemplated by section 131 cannot take effect, unless the condition is strictly fulfilled. Illustrations (i) A legacy is bequeathed to A, with a proviso that, if he marries without the consent of B, C and D, the legacy shall go to E. D dies. Even if A marries without the consent of B and C, the gift to E does not take effect. (ii) A legacy is bequeathed to A, with a proviso that, if he marries without the consent of B, the legacy shall go to C. A marries with the consent of B. He, afterwards becomes a widower and marries again without the consent of B. The bequest to C does not take effect. (iii) A legacy is bequeathed to A, to be paid at 18, or marriage, with a proviso that, if A dies under 18 or marries without the consent of B. The bequest to C takes effect. 101

133. Original bequest not affected by invalidity of second.-If the ulterior bequest be not valid the original bequest is not affected by it. Illustrations (i) An estate is bequeathed to A for his life with condition super-added that, if he shall not on a given day walk 100 miles in an hour, the estate shall go to B. The condition being void, A retains his estate as if no condition had been inserted in the will. (ii) An estate is bequeathed to A for her life and, if she do not desert her husband, to B. A is entitled to the estate during her life as if no condition had been inserted in the will. (iii) An estate is bequeathed to A for life, and, if he marries, to the eldest son of B for life. B, at the date of the testator's death, had not had a son. The bequest over is void under section 105, and A is entitled to the estate during his life.

specified uncertain event shall happen, or not happen. 134. Bequest conditioned that it shall cease to have effect in case a specified uncertain event shall happen, or not happen.-A bequest may be made with the condition super-added that it shall cease to have effect in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen. Illustrations (i) An estate is bequeathed to A for his life, with a proviso that, in case he shall cut down a certain wood, the bequest shall cease to have any effect. A cuts down the wood. He loses his life- interest in the estate. (ii) An estate is bequeathed to A, provided that, if he marries under the age of 25 without the consent of the executors named in the will, the estate shall cease to belong to him. A marries under 25 without the consent of the executors. The estate ceases to belong to him. (iii) An estate is bequeathed to A, provided that, if he shall not go to England within three years after the testator's death, his interest in the estate shall cease. A does not go to England within the time prescribed. His interest in the estate ceases. (iv) An estate is bequeathed to A, with a proviso that, if she becomes a nun, she shall cease to have any interest in the estate. A becomes a nun. She loses her interest under the will. (v) A fund is bequeathed to A for life, and, after his death, to B, if B shall be then living, with a proviso that, if B shall become a nun, the bequest to her shall cease to have any effect. B becomes a nun in the lifetime of A. She thereby loses her contingent interest in the fund.

135. Such condition must not be invalid under section 120.-In order that a condition that a bequest shall cease to have effect may be valid, it is necessary that the event to which it relates be one which could legally constitute the condition of a bequest as contemplated by section 120.

for which no time specified, and on non-perfromance of which subject matter to go over. 136. Result of legatee rendering impossible or indefinitely postponing act for which no time specified, and on non-performance of which subject matter to go over.-Where a bequest is made with a condition super-added that, unless the legatee shall perform a certain act, the subject-matter of 102 the bequest shall go to another person, or the bequest shall cease to have effect but no time is specified for the performance of the act; if the legatee takes any step which renders impossible or indefinitely postpones the performance of the act required, the legacy shall go as if the legatee had died without performing such act. Illustrations (i) A bequest is made to A, with a proviso that, unless he enters the Army, the legacy shall go over to B. A takes Holy Orders, and thereby renders it impossible that he should fulfil the condition. B is entitled to receive the legacy. (ii) A bequest is made to A, with a proviso that it shall cease to have any effect if he does not marry B's daughter. A marries a stranger and thereby indefinitely postpones the fulfilment of the conditions. The bequest ceases to have effect.

time. Further time in case of fraud. 137. Performance of condition, pr