Sanjiva Row's

The Indian Succession Act 1925

Seventh Edition

Prafulla C PantJoint Registrar

Allahabad High Court

Butterworths

Butterworths IndiaNew Delhi

Table of Contents

Preface to the Seventh Edition vPreface to the Sixth Edition viiTable of Contents ixTable of Cases xxvii

Introduction 1

PART I

Preliminary 11

1. Short title 112. Definitions 123. Power of State Government to exempt any race, sect or

tribe in the State from operation of Act 34

PART II

Domicile 36

4. Application of the Part 365. Law regulating succession to deceased person's immovable

and movable property respectively 416. One domicile only affects succession to movables 477. Domicile of origin of person of legitimate birth 508. Domicile of origin of illegitimate child 529. Continuance of domicile of origin 5310. Acquisition of new domicile 5411. Special mode of acquiring domicile in India 5612. Domicile not acquired by residence as representative of

foreign Government, or as part of his family 5713. Continuance of new domicile 5814. Minor's domicile - 59

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15. Domicile acquired by woman on marriage 6416. Wife's domicile during marriage 6617. Minor's acquisition of new domicile 6918. Lunatic's acquisition of new domicile 6919. Succession to movable property in India in the absence of

proof of domicile elsewhere 70

PART III

Marriage 71

20. Interests and powers not acquired nor lost by marriage 7121. Effect of marriage between person domiciled and one not

domiciled in India 7322. Settlement of minor's property in contemplation of

marriage 74

PARTIV

Of Consanguinity 76

23. Application of the Part 7624. Kindred or consanguinity 7825. Lineal consanguinity 7926. Collateral consanguinity 7927. Persons held for purposes of succession to be similarly

related to deceased 8028. Mode of computing of degrees of kindred 82

PARTV

Intestate Succession 83

29. Application of the Part 8330. As to what property deceased considered to have died

intestate 8631. Chapter not to apply to Parsis 8832. Devolution of such property 8833. Where intestate has left widow and lineal descendants, or

widow and kindred only, or widow and no kindred 9033-A. Special provision where intestate has left widow and no

lineal descendants 94

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34. Where intestate has left no widow and where he has leftno kindred 97

35. Rights of widower 9936. Rules of distribution 10037. Where intestate has left child or children only 10138. Where intestate has left no child, but grandchild or

grandchildren 10239. Where intestate has left only great-grandchildren or

remoter lineal descendants 10440. Where intestate leaves lineal descendants not all in same

degree of kindred to him, and those through whom themore remote are descended, are dead 105

41. Rules of distribution where intestate has left no linealdescendants 107

42. Where intestate's father living 10743. Where intestate's father is dead but his mother, brothers

and sisters living 10844. Where intestate's father dead and his mother, brother or

sister and children of any deceased brother or sister living . . 10845. Where intestate's father dead and his mother and children

of any deceased brother or sister living 10946. Where intestate's father dead, but his mother living and no

brother, sister, nephew or niece 11047. Where intestate has left neither lineal descendant, nor

father nor mother I l l48. Where intestate has left neither lineal descendant, nor

parent, nor brother, nor sister 11249. Children's advancement not brought into hotch potch 11350. General principles regulating intestate succession 11451. Division of intestate's property among widow, widower,

children and parents 11752. Division of a female intestate's property among her

widower and children 11853. Division of share of pre-deceased child of intestate leaving

lineal descendants 11854. Division of property where intestate leaves no lineal

descendant but leaves a widow or a widower or awidow or widower of any lineal descendant 119

55. Division o£ property where intestate leaves neither linealdescendants nor a widow or widower nor [a widow orwidower of any lineal descendant] 121

56. Division of property where there is no relative entitled tosucceed under the provisions of this chapter 122

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PART VI

Testamentary Succession 123

57. Application of certain provisions of the part to a class ofwills made by Hindus, etc 123

58. General application of Part 13059. Person capable of making wills 13560. Testamentary guardian 16961. Will obtained by fraud, coercion or importunity 17062. Will may be revoked or altered 20263. Execution of unprivileged wills 20764. Incorporation of paper by reference 25765. Privileged will 26566. Mode of making, and rules for executing privileged wills . . . 27067. Effect of gift to attesting witness 27768. Witness not disqualified by interest or by being executor 28169. Revocation of will by testator's marriage 28270. Revocation of unprivileged will or codicil 28571. Effect of obliteration, interlineation or alteration in

unprivileged will ; 31372. Revocation of privileged will or codicil 32073. Revival of unprivileged will 32074. Wording of will 32775. Inquiries to determine questions as to object or subject

of will 36176. Misnomer or misdescription of object 36877. When words may be supplied 37678. Rejection of erroneous particulars in description of

subject 37979. When part of description may not be rejected as

erroneous 38380. Extrinsic evidence admissible in cases of patent

ambiguity 38681. Extrinsic evidence inadmissible in case of patent

ambiguity or deficiency 39382. Meaning of clause to be collected from entire will 39983. When words may be understood in restricted sense,

and when in sense wider than usual 40784. Which of two possible constructions preferred 41885. No part rejected if it can be reasonably construed 423

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86. Interpretation of words repeated in different parts ofwill 426

87. Testator's intention to be effectuated as far as possible 42888. The last of two inconsistent clauses prevails 43189. Will or bequest void for uncertainty 43790. Words describing subject to refer to property answering

description at testator's death 45891. Power of appointment executed by general bequest 46792. Implied gift to objects of power in default of

appointment 47493. Bequest to 'heirs' etc., of particular person without

qualifying terms , 48294. Bequest to 'representatives', etc., of particular person 49295. Bequest without words of limitation 49596. Bequest in alternative 50997. Effect of words describing a class added to bequest to

person 51398. Bequest to class of persons under general description

only 52099. Construction of terms 523100. Words expressing relationship denote only legitimate

relatives or failing such relatives reputed legitimate 530101. Rules of construction where will purports to make two

bequests to same person 535102. Constitution of residuary legatee 543103. Property to which residuary legatee is entitled 548104. Time of vesting legacy in general terms 555105. In what case legacy lapses 558106. Legacy does not lapse if one of the two joint legatees die

before testator 564107. Effect of words showing testator's intention to give distinct

shares 574108. When lapsed share goes as undisposed of 577109. When bequest to testator's child or lineal descendant

does not lapse on his death in testator's lifetime 580110. Bequest to A for benefit of B does not lapse by A's death 584111. Survivorship in case of bequest to described class 585112. Bequest to person by particular description, who is not in

existence at testator's death 607

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113. Bequest to person not in existence at testator's deathsubject to prior bequest 612

114. Rule against perpetuity 618115. Bequest to a class, some of whom may come under rules in

Sections 113 and 114 627116. Bequest to take effect on failure of prior bequest 632117. Effect of direction for accumulation 635118. Bequest to religious or charitable uses 643119. Date of vesting of legacy when payment or possession

postponed 670120. Date of vesting when legacy contingent upon specified

uncertain event 685121. Vesting of interest in bequest to such members of a class

as shall have attained particular age 694122. Onerous bequest 696123. One of two separate and independent bequests to same

person may be accepted 699124. Bequests contingent upon specified uncertain event and no

time being mentioned for its occurrence 700125. Bequest to such of certain persons as shall be surviving

at some period not specified 709126. Bequest upon impossible condition 713127. Bequest upon illegal or immoral conditions 716128. Fulfilment of condition precedent of vesting of legacy 720129. Bequest to A and on failure of prior bequest to B 723130. When second bequest not to take effect on failure of first 727131. Bequest over, conditional upon happening or not

happening of specified uncertain event 729132. Condition must be strictly fulfilled 736133. Original bequest not affected by invalidity of the second 738134. Bequest conditioned that it shall cease to have effect in

case a specified uncertain event shall happen, or nothappen 740

135. Such condition must not be invalid under Section 120 744136. Result to legatee rendering impossible or indefinitely

postponing act for which no time specified, and onnon-performance of which subject-matter to go over 746

137. Performance of condition, precedent or subsequent,within specified times. Further rime in case of fraud . . . .747

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138. Direction that fund be employed in particular mannerfollowing absolute bequest of same to or for benefit ofany person 749

139. Direction that mode of enjoyment of absolute bequestis to be restricted, to secure specific benefit for legatee 754

140. Bequest of fund for certain purposes some of whichcannot be fulfilled 758

141. Legatee named as executor cannot take unless he showsintention to act as executor 761

142. Specific legacy defined 766143. Bequest of certain sum where stocks, etc., in which

invested are described . . . 772144. Bequest of stock where testator had, at date of will

equal or greater amount of stock of same kind 773145. Bequest of money where not payable until part of

testator's property disposed of in a certain way 774146. When enumerated articles not deemed specifically

bequeathed 775147. Retention, in form of specific bequest to several persons

in succession 776148. Sale and investment of proceeds of property bequeathed

to two or more persons in succession 777149. Where deficiency of assets to pay legacies, specific legacy

not to abate with general legacies 779150. Demonstrative legacy defined 780151. Order of payment when legacy directed to be paid out

of fund the subject of specific legacy * 784152. Ademption explained 785153. Non-ademption of demonstrative legacy 791154. Ademption of specific bequest of rights to receive

something from third party 792155. Ademption 'pro tanto' by testator's receipt of part of

entire thing specifically bequeathed 793156. Ademption 'pro tanto' by testator's receipt of portion

of entire fund of which portion has been specificallybequeathed 794

157. Order of payment where portion of fund specificallybequeathed to one legatee and legacy charged on somefund to another, and testator having received portionof that fund, remainder insufficient to pay both legacies 795

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158. Ademption where stock specifically bequeathed, doesnot exist at testator's death 796

159. Ademption 'pro tanto' where stock, specificallybequeathed, exists in part only at testator's death 797

160. Non-ademption of specific bequest of goods describedas connected with certain rlace, by reason of removal 798

161. When removal of thing bequeathed does not constituteademption 800

162. When the thing bequeathed is valuable to be receivedby the testator from third person; and testator himselfor his representative receives it 801

163. Change by operation of law of subject of specific bequestbetween date of will and date of the testator's death .#02

164. Change of subject without testator's knowledge 804165. Stock specifically bequeathed lent to third party on

condition that it be replaced 805166. Stock, specifically bequeathed, sold but replaced, and

belonging to testator at his death 805167. Non-liability of executor to exonerate specific legatees 808168. Completion of testator's title to things bequeathed to be

at cost of his estate 810169. Exoneration of legatee's immovable property for which

land-revenue or rent payable periodically 812170. Exoneration of specific legatee's stock in joint stock

company 813171. Bequests of things described in general terms 814172. Bequest of interest or produce of a fund 815173. Annuity created by will payable for life only unless

contrary intention appears by will 818174. Period of vesting where will directs that annuity be

provided out of proceeds of property, or out ofproperty generally, or where money bequeathed tobe invested in purchase of annuity 822

175. Abatement of annuity 825176. Where gift of annuity and residuary gift, whole annuity

to be first satisfied 826177. Creditor prima facie entitled to legacy as well as debt 827178. Child prima facie entitled to legacy as well as portion 829179. No ademption by subsequent provision for legatee 830180. Circumstances in which election takes place 831

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181. Devolution of interest relinquished by owner 838182. Testator's belief las to his ownership immaterial 839183. Bequest for man's benefit, how regarded for purpose of

election 840184. Person deriving benefit indirectly is not put to his

election 841185. Person taking in individual capacity under a will may

in other character elect to take in opposition 842186. Exception to provisions of last six sections 843187. When acceptance of benefit given by a will constitutes

election to take under will 844188. Circumstances in which knowledge or waiver is

presumed or inferred 845189. When testator's representatives may call upon legatee

toelect 846190. Postponement of election in case of disability 847191. Property transferable by gift made in contemplation

of death 848

PART VII

Protection of Property of Deceased 857

192. Person claiming right by succession to property ofdeceased may apply for relief against wrongfulpossession 857

193. Inquiry made by Judge 859194. Procedure 859195. Appointment of curator pending determination of

proceedings 860196. Powers conferable on curator 861197. Prohibition of exercise of certain powers by curators 862198. Curator to give security and may receive remuneration 863199. Report from Collector where estate includes revenue-

paying land 864200. Institution and defence of suits 865201. Allowances to apparent owners pending custody by

curator i. .866202. Accounts to be filed by curator 866203. Inspection of accounts and right of interested party to

keep duplicate 867

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204. Bar to appointment of second curator for same property 867205. Limitation of time for application for curator 868206. Bar to enforcement of Part against public settlement

or legal directions by deceased 869207. Court of Wards to be made curator in case of minors

having property subject to its jurisdiction 870208. Saving of right to bring suit 870209. Effect of decision of summary proceeding 871210. Appointment of public curators 872

PART VIII

Representative Title to Property of Deceased onSuccession 873

211. Character and property of executor or administratoras such 873

212. Right to intestate's property 880213. Right as executor or legatee when established 886214. Proof of representative title a condition precedent to

recovery through the courts of debts from debtors ofdeceased person 905

215. Effect on certificate of subsequent probates or Letters ofAdministration 933

216. Grantee of probate or administration alone to sue, etc.,until same revoked 933

PART IX

Probate, Letters of Administration and Administrationof Assets of Deceased 936

217. Application of part 936218. To whom the administration may be granted, where

deceased is a Hindu, Mohammedan, Buddhist, Sikh,Jaina or exempted person 939

219. Where deceased is not a Hindu, Mohammedan,Buddhist, Sikh, Jaina or exempted person 945

220. Effect of Letters of Administration 956221. Act not validated by administration , 957222. Probate only to appointed executor . , 958223. Persons to whom probate cannot be granted , 973

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224. Grant of probate to several executors simultaneouslyor at different times 976

225. Separate probate of codicil discovered after grant ofprobate 979

226. Accrual of representation to surviving executor 980227. Effect of probate 982228. Administration, with copy annexed, of authenticated

copy of will proved abroad 988229. Grant of Administration where executor has not

renounced 1000230. Form and effect of renunciation of executorship 1003231. Procedure where executor renounces or fails to accept

within time limited 1006232. Grant of administration to universal or residuary legatee . . . 1007233. Right to administration of representative of deceased

residuary legatee 1015234. Grant of administration where no executor nor residuary

legatee not representative of such legatee 1019235. Citation before grant of administration to legatee other

than universal or residuary 1022236. To whom administration may not be granted 1025236-A. Laying of rules before State Legislature 1027237. Probate of copy or draft of lost will 1027238. Probate of contents of lost or destroyed will 1030239. Probate of copy where original exists 1033240. Administration until will produced 1033241. Administration with will annexed to attorney of absent

executor 1034242. Administration with will annexed to attorney of absent

person who, if present, would be entitled to administer 1039243. Administration to attorney of absent person entitled to

administer in case of intestacy 1040244. Administration during minority of sole executor or

residuary legatee 1041245. Administration during minority of several executors or

residuary legatees 1045246. Administration for use and benefit of lunatic or minor 1047247. Administration 'pendente lite' 1052248. Probate limited to purpose specified in will 1061

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249. Administration, with will annexed, limited to particularpurposes 1064

250. Administration limited to property in which personhas beneficial interest 1064

251. Administration limited to suit 1068252. Administration limited to purpose of becoming party to

suit be brought against administrator 1071253. Administration limited to collection and preservation of

deceased's property 1074254. Appointment, as administrator, of person other than one

who, in ordinary circumstances, would be entitled toadministration 1076

255. Probate or administration with will annexed, subjectto exception 1080

256. Administration with exception 1083257. Probate or administration of rest 1085258. Grants of effects unadministered 1086259. Rules to grant of effects unadministered 1091260. Administration when limited grant expired and still

some part of estate unadministered 1092261. What errors may be rectified by court? 1094262. Procedure where codicil discovered after grant of

administration with will annexed 1095263. Revocation or annulment for just cause 1096264. Jurisdiction of District Judge in granting and revoking

probates, etc 1128265. Power to appoint delegates of District Judge to deal

with non-contentious cases 1133266. District Judge's powers as to grant of probate and

administration 1135267. District Judge may order any person to produce

testamentary papers 1136268. Proceedings of District Judge's Court in relation to

probate and administration 1140269. When and how district Judge to interfere for protection

of property 1148270. When probate or administration may be granted by

District Judge 1150271. Disposal of application made to Judge of district in

which deceased had no fixed abode 1154

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272. Probate and Letters of Administration may be granted bydelegate 1156

273. Conclusiveness of probate or Letters of Administration 1157274. Transmission to High Court of certificate of grants under

proviso to Section 273 1166275. Conclusiveness of application for probate or administration,

if property made and verified 1167276. Petition for probate 1168277. In what cases translation of will to be annexed to petition.

Verification of translation by person other than Courttranslator 1175

278. Petition for Letters of Administration 1176279. Addition to statement in petition, etc., for probate or

Letters of Administration in certain cases 1180280. Petition for probate, etc. to be signed and verified 1181281. Verification of petition for probate by one witness to will . . . 1182282. Punishment for false averment in petition or declaration . . . 1183283. Powers of District Judge 1183284. Caveats against grant of probate or administration 1198285. After entry of caveat no proceeding taken on petition until

after notice to caveator 1203286. District delegate when not to grant probate or

administration 1205287. Power to transmit statement to District Judge in doubtful

cases where no contention 1206288. Procedure where there is contention or District Delegate

thinks probate or Letters of Administration should berefused in his court 1206

289. Grant of probate to be under seal of court 1207290. Grant of Letters of Administration to be under seal of

Court 1210291. Administration bond 1212292. Assignment of administration bond 1217293. Time for grant of probate and administration 1222294. Filing of original wills of which probate or administration

with will annexed may granted 1223295. Procedure in contentious case 1224296. Surrender of revoked probate or Letters of Administration .1228297. Payment to executor or administrator before probate or

administration revoked 1229

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298. Power to refuse Letters of Administration 1232299. Appeals from orders of District Judge 1234300. Concurrent jurisdiction of High Court 1240301. Removal of executor or administrator and provision for

successor 1241302. Direction to executor or administrator 1243303. Executor of his own wrong 1246304. Liability of executor of his own wrong 1254305. In respect of causes of action surviving deceased and

debts due at death 1258306. Demands and rights of action of or against deceased

survive to and against executor or administrator 1261307. Power to executor or administrator to dispose of

property 1277308. General powers of administration 1294309. Commission or agency charges 1296310. Purchase by executor or administrator of deceased's

property 1297311. Powers of several executors or administrators exercisable

by one 1300312. Survival of powers on death of one of several executors

or administrators 1304313. Powers of administrator of effects unadministered 1305314. Powers of administrator during minority 1305315. Powers of married executrix or administratrix 1306316. As to deceased's funeral 1306317. Inventory and account 1308318. Inventory to include property in any part of India in

certain cases 1316319. As to property of and debts owing to deceased 1317320. Expenses to be paid before all debts 1318321. Expenses to be paid next after such expenses 1319322. Wages for certain services to be next paid, and then

other debts 1324323. Save as aforesaid all debts to be paid equally and

rateably 1326324. Application of movable property to payment of debts

where domicile not in India 1335325. Debts to be paid before legacies 1336326. Executor or administrator not bound to pay legacies

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without indemnity 1338327. Abatement of general legacies 1338328. Non-abatement of specific legacy when assets sufficient

to pay debts 1339329. Right under demonstrative legacy when assets sufficient

to pay debts and necessary expenses 1340330. Rateable abatement of specific legacies 1341331. Legacies treated as general for purpose of abatement 1342332. Assent necessary to complete legatee's title 1342333. Effect of executor's assent to specific legacy 1345334. Conditional assent 1348335. Assent of executor to his own legacy 1349336. Effect of executor's assent 1351337. Executor when to deliver legacy 1353338. Commencement of annuity when no time fixed by will 1354339. When annuity to be paid quarterly or monthly first

falls due 1354340. Date of the successive payments when first payment

directed to be made within a given time or on certainday: death of annuitant before date of payment 1355

341. Investment of sum bequea thed, where legacy, notspecific given for life 1356

342. Investment of general legacy, to be paid at future time:disposal of intermediate interest 1357

343. Procedure when no fund charged with, or appropriated,to annuity 1357

344. Transfer to residuary legatee of contingent bequest 1358345. Investment of residue bequeathed for life, without

direction to invest in particular securities 1360346. Investment of residue bequeathed for life, with

direction to invest in specified securities 1360347. Time and manner of conversion and investment 1361348. Procedure where minor entitled to immediate payment or

possession of bequest and no direction to pay to personon his behalf 1362

349. Legatee's title to produce of specific legacy 1364350. Residuary legatee's title to produce of residuary fund 1366351. Interest when no time fixed for payment of general

legacy 1367352. Interest when time fixed 1370

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353. Rate of interest 1371354. No interest on arrears of annuity within first year

after testator's death 1372355. Interest on sum to be invested to produce annuity 1373356. Refund of legacy paid under Court's orders 1373357. No refund if paid voluntarily 1374358. Refund when legacy has become due on performance of

condition within further time allowed under Section 137 . . . 1374359. When each legatee compellable to refund in proportion 1375360. Distribution of assets 1375361. Creditor may call upon legatee to refund 1378362. When legatee, not satisfied or compelled to refund under

Section 361, cannot oblige one paid in full to refund 1380363. When unsatisfied legatee must first proceed against

executor, if solvent 1381364. Limit to refunding of one legatee to another 1382365. Refunding to be without interest 1382366. Residue after usual payments to be paid to residuary

legatee 1383367. Transfer of assets from India to executor or administrator

in country of domicile for distribution 1384368. Liability of executor or administrator for devastation 1385369. Liability of executor or administrator for neglect to get

any part of property 1392

PARTX

Succession Certificates 1396

370. Restriction on grant of certificates under this Part 1396371. Court having jurisdiction to grant certificate 1399372. Application for certificate 1404373. Procedure on application 1411374. Contents of certificate , 1416375. Requisition of security from grantee of certificate 1416376. Extension of certificate 1418377. Forms of certificate and extended certificate 1418378. Amendment of certificate in respect of powers as to

securities 1419379. Mode of collecting court-fees on certificates 1419380. Local extent of certificate 1420

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381. Effect to certificates 1421382. Effect of certificate granted or extended by Indian

representative in foreign state and in certain other cases . . . 1423383. Revocation of certificate 1423384. Appeal - 1424385. Effect on certificate of previous certificate, probate or

Letters of Administration 1426386. Validation of certain payments made in good faith to

holder of invalid certificate 1427387. Effect of decisions under this Act, and liability of holder

of certificate thereunder 1427388. Investiture of inferior courts with jurisdiction of District

Court for purposes of this Act 1429389. Surrender of superseded and invalid certificate 1432390. Provisions with respect to certificates under Bombay

Regulation VIII of 1827 1432

PART XI

Miscellaneous 1434

391. Saving 1434392. Repeals 1434

SCHEDULES 1435

APPENDICES 1442

1. The Administrators-General Act 1963 14422. The Caste Disabilities Removal Act 1850 14603 (The) Cutchi Memons Act, 1938 14614 The Hindu Inheritance (Removal of Disabilities) Act, 1928 14625 The Hindu Succession Act 1956 14636 The Legal Representatives Suits Act 1855 14647 The Married Women's Property Act 1874 14658 The Motor Vehicles Act 1988 14709 The Muslim Personal Law (Shariat) Application Act 1937 147110 The Special Marriage Act 1954 147211 The Hindu Minority and Guardianship Act 1956 1473

Index U79

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